EN BANC

[ G.R. No. 221318, December 16, 2015 ]

KABATAAN PARTY-LIST, REPRESENTED BY REPRESENTATIVE JAMES
MARK TERRY L. RIDON AND MARJOHARA S. TUCAY; SARAH JANE I.
ELAGO, PRESIDENT OF THE NATIONAL UNION OF STUDENTS OF THE
PHILIPPINES; VENCER MARI E. CRISOSTOMO, CHAIRPERSON OF THE
ANAKBAYAN; MARC LINO J. ABILA, NATIONAL PRESIDENT OF THE
COLLEGE EDITORS GUILD OF THE PHILIPPINES; EINSTEIN Z.
RECEDES, DEPUTY SECRETARY-GENERAL OF ANAKBAYAN;
CHARISSE BERNADINE I. BAÑEZ, CHAIRPERSON OF THE LEAGUE OF
FILIPINO STUDENTS; ARLENE CLARISSE Y. JULVE, MEMBER OF
ALYANSA NG MGA GRUPONG HALIGI NG AGHAM AT TEKNOLOHIYA
PARA SA MAMAMAYAN (AGHAM); AND SINING MARIA ROSA L.
MARFORI, PETITIONERS, VS. COMMISSION ELECTIONS, ON
RESPONDENT.

DECISION

PERLAS-BERNABE, J.:

Rights beget responsibilities; progress begets change.

Before the Court is a petition for certiorari and prohibition[1] filed by herein

petitioners Kabataan Party-List, represented by Representative James Mark Terry L.
Ridon and National President Marjohara S. Tucay; Sarah Jane I. Elago, President of the
National Union of Students of the Philippines; Veneer Mari E. Crisostomo and Einstein Z.
Recedes, Chairperson and Deputy Secretary-General of Anakbayan, respectively; Marc
Lino J. Abila, National President of the College Editors Guild of the Philippines; Charisse
Bernadine I. Bañez, Chairperson of the League of Filipino Students; Arlene Clarisse Y.
Julve, member of Alyansa ng mga Grupong Haligi ngAgham at Teknolohiya para sa
Mamamayan (AGHAM); and Sining Maria Rosa L. Marfori (petitioners) assailing the
constitutionality of Republic Act No. (RA) 10367, entitled "An Act Providing for
Mandatory Biometrics Voter Registration,"[2] as well as respondent Commission on
Elections (COMELEC) Resolution Nos. 9721,[3] 9863,[4] and 10013,[5] all related thereto.
 The Facts

On February 15, 2013, President Benigno S. Aquino III signed into law RA 10367, which is
a consolidation of House Bill No. 3469 and Senate Bill No. 1030, passed by the House of
Representatives and the Senate on December 11, 2012 and December 12, 2012,
[6]
 respectively. Essentially, RA 10367 mandates the COMELEC to implement a
mandatory biometrics registration system for new voters [7] in order to establish a clean,
complete, permanent, and updated list of voters through the adoption of biometric
technology.[8] RA 10367 was duly published on February 22, 2013,[9] and took effect
fifteen (15) days after.[10]

RA 10367 likewise directs that "[r]egistered voters whose biometrics have not been
captured shall submit themselves for validation."[11] "Voters who fail to submit for
validation on or before the last day of filing of application for registration for purposes
of the May 2016 [E]lections shall be deactivated x x x."[12] Nonetheless, voters may have
their records reactivated after the May 2016 Elections, provided that they comply with
the procedure found in Section 28[13] of RA 8189,[14] also known as "The Voter's
Registration Act of 1996."[15]

On June 26, 2013, the COMELEC issued Resolution No. 9721[16] which serves as the
implementing rules and regulations of RA 10367, thus, prescribing the procedure for
validation,[17] deactivation,[18] and reactivation of voters' registration records (VRRs).
[19]
 Among others, the said Resolution provides that: (a) "[t]he registration records of
voters without biometrics data who failed to submit for validation on or before the
last day of filing of applications for registration for the purpose of the May 9, 2016
National and Local Elections shall be deactivated in the last [Election Registration Board
(ERB)] hearing to be conducted prior to said elections";[20] (b) "[t]he following registered
voters shall have their biometrics data validated: [(1)] Those who do not have
BIOMETRICS data appearing in the Voter['s] Registration System (VRS); and [(2)] Those
who have incomplete BIOMETRICS data appearing in the VRS";[21] (c) "[d]eactivated
voters shall not be allowed to vote";[22] and (d) "[d]eactivation x x x shall comply with
the requirements on posting, ERB hearing and service of individual notices to the
deactivated voters."[23] Resolution No. 9721 further states that, as of the last day of
registration and validation for the 2013 Elections on October 31, 2012, a total of
9,018,256 registered voters were without biometrics data. [24] Accordingly, all Election
Officers (EOs) were directed to "conduct [an] information campaign on the conduct of
validation."[25]

On July 1, 2013, the COMELEC, pursuant to the aforesaid Resolution, commenced the
mandatory biometric system of registration. To make biometric registration convenient
and accessible to the voting public, aside from the COMELEC offices in every local
government unit, it likewise established satellite registration offices in barangays and
mails.[26]

On April 1, 2014, the COMELEC issued Resolution No. 9863[27] which amended certain

portions[28] of Resolution No. 9853[29] dated February 19, 2014, by stating that ERBs shall
deactivate the VRRs of those who "failed to submit for validation despite notice on or
before October 31, 2015," and that the "[d]eactivation for cases falling under this
ground shall be made during the November 16, 2015 Board hearing."[30]

A month later, or in May 2014, the COMELEC launched the NoBio-NoBoto public

information campaign which ran concurrently with the period of continuing
registration.[31]

On November 3, 2015, the COMELEC issued Resolution No. 10013[32] which provides for

the "procedures in the deactivation of [VRRs] who do not have biometrics data in the
[VRS] after the October 31, 2015 deadline of registration and validation." [33] Among
others, the said Resolution directed the EOs to: (a) "[p]ost the lists of voters without
biometrics data in the bulletin boards of the City/Municipal hall, Office of the Election
Officer and in the barangay hall along with the notice of ERB hearing;" and (b) "[s]end
individual notices to the affected voters included in the generated list of voters without
biometrics data."[34] It also provides that "[a]ny opposition/objection to the deactivation
of records shall be filed not later than November 9, 2015 in accordance with the period
prescribed in Section 4,[35] [Chapter I,] Resolution No. 9853."[36] During the ERB hearing,
which proceedings are summary in nature,[37] "the ERBs shall, based dn the list of voters
without biometrics data, order the deactivation of registration records on the ground of
'failure to validate.'"[38] Thereafter, EOs were required to "[s]end individual notices to
the deactivated voters within five (5) days from the last day of ERB
hearing."[39] Moreover, Resolution No. 10013 clarified that the "[Registration records of
voters with incomplete biometrics data and those corrupted data (biometrics) in the
database shall not be deactivated and be allowed to vote in the May 9, 2016
Synchronized National, Local and [Autonomous Region on Muslim Mindanao (ARMM)]
Regional Elections."[40]

On November 25, 2015, herein petitioners filed the instant petition with application for
temporary restraining order (TRO) and/or writ of preliminary mandatory injunction
(WPI) assailing the constitutionality of the biometrics validation requirement imposed
under RA 10367, as well as COMELEC Resolution Nos. 9721, 9863, and 10013, all related
thereto. They contend that: (a) biometrics validation rises to the level of an additional,
substantial qualification where there is penalty of deactivation; [41] (b) biometrics
deactivation is not the disqualification by law contemplated by the 1987 Constitution;
[42]
 (c) biometrics validation gravely violates the Constitution, considering that, applying
the strict scrutiny test, it is not poised with a compelling reason for state regulation and
hence, an unreasonable deprivation of the right to suffrage; [43] (d) voters to be
deactivated are not afforded due process;[44] and (e) poor experience with biometrics
should serve as warning against exacting adherence to the system. [45] Albeit already
subject of a prior petition[46] filed before this Court, petitioners also raise herein the
argument that deactivation by November 16, 2015 would result in the premature
termination of the registration period contrary to Section 8[47] of RA 8189.[48] Ultimately,
petitioners pray that this Court declare RA 10367, as well as COMELEC Resolution Nos.
9721, 9863, and 10013, unconstitutional and that the COMELEC be commanded to
desist from deactivating registered voters without biometric information, to reinstate
voters who are compliant with the requisites of RA 8189 but have already been delisted,
and to extend the system of continuing registration and capture of biometric
information of voters until January 8, 2016.[49]

On December 1, 2015, the Court required the COMELEC to file its comment to the
petition. Meanwhile, it issued a TRO requiring the COMELEC to desist from deactivating
the registration records of voters without biometric information, pending resolution of
the case at hand.[50]

On December 7, 2015, COMELEC Chairman Juan Andres D. Bautista, through a

letter[51] addressed to the Court En Banc, urgently appealed for the immediate lifting of
the above-mentioned TRO, stating that the COMELEC is set to finalize the Project of
Precincts (POP) on December 15, 2015, and that the TRO issued in this case has the
effect of including the 2.4 Million deactivated voters in the list of voters, which, in turn,
would require revisions to the POP and consequently, adversely affect the timelines of
all other interrelated preparatory activities to the prejudice of the successful
implementation of the Automated Election System (AES) for the 2016 Elections. [52]

On December 11, 2015, the COMELEC, through the Office of the Solicitor General, filed
its comment[53] to the instant petition. On even date, petitioners filed a
manifestation[54] asking the Court to continue the TRO against the deactivation of voters
without biometric information.[55]

With no further pleadings required of the parties, the case was submitted for resolution.

The Issue Before the Court

The core issue in this case is whether or not RA 10367, as well as COMELEC Resolution
Nos. 9721, 9863, and 10013, all related thereto, are unconstitutional.

The Ruling of the Court

The petition is bereft of merit.

I.

At the outset, the Court passes upon the procedural objections raised in this case. In
particular, the COMELEC claims that petitioners: (a) failed to implead the Congress, the
Office of the President, and the ERB which it purports are indispensable parties to the
case;[56] (b) did not have the legal standing to institute the instant petition; [57] and (c)
erroneously availed of certiorari and prohibition as a mode of questioning the
constitutionality of RA 10367 and the assailed COMELEC Resolutions. [58]

The submissions do not hold.

Recognizing that the petition is hinged on an important constitutional issue pertaining

to the right of suffrage, the Court views the matter as one of transcendental public
importance and of compelling significance. Consequently, it deems it proper to brush
aside the foregoing procedural barriers and instead, resolve the case on its merits. As
resonated in the case of Pabillo v. COMELEC,[59] citing Capalla v.
COMELEC[60] and Guingona, Jr. v. COMELEC:[61]
There can be no doubt that the coming 10 May 2010 [in this case, the May 2016]
elections is a matter of great public concern. On election day, the country's registered
voters will come out to exercise the sacred right of suffrage. Not only is it an exercise
that ensures the preservation of our democracy, the coming elections also embodies
our people's last ounce of hope for a better future. It is the final opportunity, patiently
awaited by our people, for the peaceful transition of power to the next chosen leaders
of our country. If there is anything capable of directly affecting the lives of ordinary
Filipinos so as to come within the ambit of a public concern, it is the coming elections ,
[x x x.]
Thus, in view of the compelling significance and transcending public importance
of the issues raised by petitioners, the technicalities raised by respondents should not
be allowed to stand in the way, if the ends of justice would not be subserved by a rigid
adherence to the rules of procedure. (Emphasis and underscoring supplied)
Furthermore, the issue on whether or not the policy on biometrics validation, as
provided under RA 10367 and fleshed out in the assailed COMELEC Resolutions, should
be upheld is one that demands immediate adjudication in view of the critical
preparatory activities that are currently being undertaken by the COMELEC with regard
to the impending May 2016 Elections. Thus, it would best subserve the ends of justice to
settle this controversy not only in order to enlighten the citizenry, but also so as not to
stymy the operations of a co-constitutional body. As pronounced in Roque, Jr. v.
COMELEC:[62]
[T]he bottom line is that the Court may except a particular case from the
operations of its rules when the demands of justice so require. Put a bit differently, rules
of procedure are merely tools designed to facilitate the attainment of justice.
Accordingly, technicalities and procedural barriers should not be allowed to stand in the
way, if the ends of justice would not be subserved by a rigid adherence to the rules of
procedure.[63]
That being said, the Court now proceeds to resolve the substantive issues in this
case.

II.

Essentially, the present petition is a constitutional challenge against the biometrics

validation requirement imposed under RA 10367, including COMELEC Resolution Nos.
9721, 9863, and 10013. As non-compliance with the same results in the penalty of
deactivation, petitioners posit that it has risen to the level of an unconstitutional
substantive requirement in the exercise of the right of suffrage.[64] They submit that the
statutory requirement of biometric validation is no different from the unconstitutional
requirement of literacy and property because mere non-validation already absolutely
curtails the exercise of the right of suffrage through deactivation.[65] Further, they
advance the argument that deactivation is not the disqualification by law contemplated
as a valid limitation to the exercise of suffrage under the 1987 Constitution. [66]

The contestation is untenable.

As early as the 1936 case of The People of the Philippine Islands v. Corral,[67] it has been
recognized that "[t]he right to vote is not a natural right but is a right created by law.
Suffrage is a privilege granted by the State to such persons or classes as are most likely
to exercise it for the public good. In the early stages of the evolution of the
representative system of government, the exercise of the right of suffrage was limited
to a small portion of the inhabitants. But with the spread of democratic ideas, the
enjoyment of the franchise in the modern states has come to embrace the mass of the
audit classes of persons are excluded from the franchise." [68]

Section 1, Article V of the 1987 Constitution delineates the current parameters for the
exercise of suffrage:
Section 1. Suffrage may be exercised by all citizens of the Philippines not
otherwise disqualified by law, who are at least eighteen years of age, and who shall
have resided in the Philippines for at least one year and in the place wherein they
propose to vote for at least six months immediately preceding the election. No literacy,
property, or other substantive requirement shall be imposed on the exercise of suffrage.
Dissecting the provision, one must meet the following qualifications in order to
exercise the right of suffrage: first, he must be a Filipino citizen; second, he must not be
disqualified by law; and third, he must have resided in the Philippines for at least one (1)
year and in the place wherein he proposes to vote for at least six (6) months
immediately preceding the election.

The second item more prominently reflects the franchised nature of the right of
suffrage. The State may therefore regulate said right by imposing statutory
disqualifications, with the restriction, however, that the same do not amount to, as per
the second sentence of the provision, a "literacy, property or other substantive
requirement." Based on its genesis, it may be gleaned that the limitation is geared
towards the elimination of irrelevant standards that are purely based on socio-economic
considerations that have no bearing on the right of a citizen to intelligently cast his vote
and to further the public good.

To contextualize, the first Philippine Election Law, Act No. 1582, which took effect on
January 15, 1907, mandated that only men who were at least twenty-three (23) years
old and "comprised within one of the following three classes" were allowed to vote: (a)
those who prior to the 13th of August, 1898, held the office of municipal
captain, governadorcillo, alcalde, lieutenant, cabeza de barangay, or member of
any ayuntamiento; (b) those who own real property to the value of P500.00, or who
annually pay P30.00 or more of the established taxes; and (c) those, who speak, read,
and write English or Spanish.

When the 1935 Constitution was adopted, the minimum voting age was lowered to
twenty-one (21) and the foregoing class qualification and property requirements were
removed.[69] However, the literacy requirement was retained and only men who were
able to read and write were given the right to vote. [70] It also made women's right to
vote dependent on a plebiscite held for such purpose. [71]

During the 1971 Constitutional Convention, the delegates decided to remove the
literacy and property requirements to broaden the political base and discontinue the
exclusion of millions of citizens from the political systems: [72]
Sponsorship Speech of Delegate Manglapus

DELEGATE MANGLAPUS: Mr. President, the draft proposal, the subject matter of Report
No. 11 contains amendments that are designed to improve Article V on suffrage and to
broaden the electoral base of our country. The three main points that are taken up in
this draft which will be developed in the sponsorship speeches that will follow might
need explanatory remarks, x x x.
x x x x

(2) The present requirement, reading and writing, is eliminated and instead a provision
is introduced which says, "No literacy, property, or other substantive requirement shall
be imposed on the exercise of suffrage;"

xxxx
The draft before us is in keeping with the trend towards the broadening of the
electoral base already begun with the lowering of the voting age to 18, and it is in
keeping further with the Committee's desire to discontinue the alienation and
exclusion of millions of citizens from the political system and from participation in the
political life of the country. The requirement of literacy for voting is eliminated for it is
noted that there are very few countries left in the world where literacy remains a
condition for voting. There is no Southeast Asian country that imposes this requirement.
The United States Supreme Court only a few months ago declared unconstitutional any
state law that would continue to impose this requirement for voting.

x x x x

It is to be noted that all those who testified before the Committee favoured the
elimination of the literacy requirement. It must be stressed that those witnesses
represented all levels of society x x x.

Sponsorship Speech of Delegate Ordoñez

x x x in the process, as we evolve, many and more of our people were left to the
sidelines because they could no longer participate in the process of government simply
because their ability to read and write had become inadequate. This, however, did not
mean that they were no longer responsive to the demands of the times, that they were
unsensible to what was happening among them. And so in the process as years went on,
conscious efforts were made to liberate, to free these persons who were formerly
entitled in the course of election by means of whittling away the requirements for the
exercise of the right to vote. First of all, was the property requirement. There were
times in the English constitutional history that it was common to say as an answer to a
question, "Who are entitled to vote?" that the following cannot vote - - criminals,
paupers, members of the House of Lords. They were landed together at the same
figurative category.
Eventually, with the wisdom of the times, property requirement was eliminated but the
last remaining vestige which bound the members of the community to ignorance, which
was the persistence of this requirement of literacy remained. And this is again preserved
in our Constitution, in our Election Code, which provides that those who cannot prepare
their ballots themselves shall not be qualified to vote.

x x x x

Unless you remove this literacy test, the cultural minorities, the underprivileged, the
urban guerrillas will forever be outcasts of our society, irresponsive of what is
happening. And if this condition were to continue, my friends, we cannot fully claim
that we have representative democracy. Let us reverse the cycle. Let us eliminate the
social imbalance by granting to these persons who are very responsible the right to
participate in the choice of the persons who are to make their laws for them. (Emphases
supplied)
As clarified on interpellation, the phrase "other substantive requirement" carries
the same tack as the other standards alienating particular classes based on socio-
economic considerations irrelevant to suffrage, such as the payment of taxes. Moreover,
as particularly noted and as will be later elaborated on, the phrase did not contemplate
any restriction on procedural requirements, such as that of registration:
DELEGATE DE LOS REYES: On page 2, Line 3, the following appears:
"For other substantive requirement, no literacy[,] property, or other substantive
requirement shall be imposed on the exercise of suffrage."
just what is contemplated in the phrase, "substantive requirement?"

DELEGATE OCCEÑA: I can answer that, but it belongs to the sphere of someone else in
the Committee. We use this term as distinguished from procedural requirements. For
instance, the law cannot come in and say that those who should be allowed to vote
should have paid certain taxes. That would be a substantial requirement in addition to
what is provided for in the Constitution. But the law can step in as far as certain
procedural requirements are concerned like requiring registration, and also step in as
far as these classifications are concerned.[73] (Emphases supplied)
As it finally turned out, the imposition of literacy, property, or other substantive
requirement was proscribed and the following provision on suffrage was adopted [74] in
the 1973 Constitution:
 Section 1. Suffrage shall be exercised by citizens of the Philippines not otherwise
disqualified by law, who are eighteen years of age or over, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to vote for at
least six months preceding the election. No literacy, property, or other substantive
requirement shall be imposed on the exercise of suffrage. The Batasang Pambansa
shall provide a system for the purpose of securing the secrecy and sanctity of the vote.
(Emphasis supplied)
After deliberating on and eventually, striking down a proposal to exclude literacy
requirements from the limitation,[75] the exact provision prohibiting the imposition of
"literacy, property, or other substantive requirement[s]" in the 1973 Constitution was
fully adopted in the 1987 Constitution.

Along the contours of this limitation then, Congress, pursuant to Section 118 of Batas
Pambansa Bilang 881, or the Omnibus Election Code, among others, imposed the
following legal disqualifications:
Section 118. Disqualifications. - The following shall be disqualified from voting:
(a) Any person who has been sentenced by final judgment to suffer imprisonment
for not less than one year, such disability not having been removed by plenary pardon
or granted amnesty: Provided, however, That any person disqualified to vote under this
paragraph shall automatically reacquire the right to vote upon expiration of five years
after service of sentence.

(b) Any person who has been adjudged by final judgment by competent court or
tribunal of having committed any crime involving disloyalty to the duly constituted
government such as rebellion, sedition, violation of the anti-subversion and firearms
laws, or any crime against national security, unless restored to his full civil and political
rights in accordance with law: Provided, That he shall regain his right to vote
automatically upon expiration of five years after service of sentence.

(c) Insane or incompetent persons as declared by competent authority.

A "qualification" is loosely defined as "the possession of qualities, properties
(such as fitness or capacity) inherently or legally necessary to make one eligible for a
position or office, or to perform a public duty or function." [76]

Properly speaking, the concept of a "qualification", at least insofar as the discourse on

suffrage is concerned, should be distinguished from the concept of "registration", which
is jurisprudentially regarded as only the means by which a person's qualifications to vote
is determined. In Yra v. Abaño,[77] citing Meffert v. Brown,[78] it was stated that "[t]he act
of registering is only one step towards voting, and it is not one of the elements that
makes the citizen a qualified voter [and] one may be a qualified voter without exercising
the right to vote."[79] In said case, this Court definitively characterized registration as a
form of regulation and not as a qualification for the right of suffrage:
Registration regulates the exercise of the right of suffrage. It is not a
qualification for such right.[80] (Emphasis supplied)
As a form of regulation, compliance with the registration procedure is dutifully
enjoined. Section 115 of the Omnibus Election Code provides:
Section 115. Necessity of Registration. - In order that a qualified elector may
vote in any election, plebiscite or referendum, he must be registered in the permanent
list of voters for the city or municipality in which he resides. (Emphasis supplied)
Thus, although one is deemed to be a "qualified elector," he must nonetheless
still comply with the registration procedure in order to vote.

As the deliberations on the 1973 Constitution made clear, registration is a mere

procedural requirement which does not fall under the limitation that "[n]o literacy,
property, or other substantive requirement shall be imposed on the exercise of
suffrage." This was echoed in AKBAYAN-Youth v. COMELEC[81] (AKBAYAN-Youth), wherein
the Court pronounced that the process of registration is a procedural limitation on the
right to vote. Albeit procedural, the right of a citizen to vote nevertheless remains
conditioned upon it:
Needless to say, the exercise of the right of suffrage, as in the enjoyment of all
other rights, is subject to existing substantive and procedural requirements embodied in
our Constitution, statute books and other repositories of law. Thus, as to the substantive
aspect, Section 1, Article V of the Constitution provides:

x x x x

As to the procedural limitation, the right of a citizen to vote is necessarily conditioned

upon certain procedural requirements he must undergo: among others, the process of
registration. Specifically, a citizen in order to be qualified to exercise his right to vote, in
addition to the minimum requirements set by the fundamental charter, is obliged by law
to register, at present, under the provisions of Republic Act No. 8189, otherwise known
as the Voters Registration Act of 1996.[82] (Emphasis and underscoring supplied)
RA 8189 primarily governs the process of registration. It defines "registration" as
"the act of accomplishing and filing of a sworn application for registration by a qualified
voter before the election officer of the city or municipality wherein he resides and
including the same in the book of registered voters upon approval by the [ERB]." [83] As
stated in Section 2 thereof, RA 8189 was passed in order "to systematize the present
method of registration in order to establish a clean, complete, permanent and updated
list of voters."

To complement RA 8189 in light of the advances in modern technology, RA 10367, or

the assailed Biometrics Law, was signed into law in February 2013. It built on the policy
considerations behind RA 8189 as it institutionalized biometrics validation as part of the
registration process:
Section 1. Declaration of Policy. - It is the policy of the State to establish a clean,
complete, permanent and updated list of voters through the adoption of biometric
technology.
"Biometrics refers to a quantitative analysis that provides a positive identification
of an individual such as voice, photograph, fingerprint, signature, iris, and/or such other
identifiable features."[84]

Sections 3 and 10 of RA 10367 respectively require registered and new voters to submit
themselves for biometrics validation:
Section 3. Who Shall Submit for Validation. - Registered voters whose biometrics
have not been captured shall submit themselves for validation.

Section 10. Mandatory Biometrics Registration. - The Commission shall implement a

mandatory biometrics registration system for new voters.
Under Section 2 (d) of RA 10367, "validation" is defined as "the process of taking
the biometrics of registered voters whose biometrics have not yet been captured."

The consequence of non-compliance is "deactivation" which "refers to the removal of

the registration record of the registered voter from the corresponding precinct book of
voters for failure to comply with the validation process as required by [RA
10367]."[85] Section 7 states:
 Section 7. Deactivation. - Voters who fail to submit for validation on or before
the last day of filing of application for registration for purposes of the May 2016
elections shall be deactivated pursuant to this Act. (Emphases supplied)
Notably, the penalty of deactivation, as well as the requirement of
validation, neutrally applies to all voters. Thus, petitioners' argument that the law
creates artificial class of voters [86] is more imagined than real. There is no favor accorded
to an "obedient group." If anything, non-compliance by the "disobedient" only rightfully
results into prescribed consequences. Surely, this is beyond the intended mantle of the
equal protection of the laws, which only works "against undue favor and individual or
class privilege, as well as hostile discrimination or the oppression of inequality."[87]

It should also be pointed out that deactivation is not novel to RA 10367. RA 8189
already provides for certain grounds for deactivation, of which not only the
disqualifications under the Constitution or the Omnibus Election are listed.
Section 27. Deactivation of Registration. The board shall deactivate the
registration and remove the registration records of the following persons from the
corresponding precinct book of voters and place the same, properly marked and dated
in indelible ink, in the inactive file after entering the cause or causes of deactivation:

a) Any person who has been sentenced by final judgment to suffer imprisonment for not
less than one (1) year, such disability not having been removed by plenary pardon or
amnesty: Provided, however, That any person disqualified to vote under this paragraph
shall automatically reacquire the right to vote upon expiration of five (5) years after
service of sentence as certified by the clerks of courts of the Municipal/Municipal
Circuit/Metropolitan/Regional Trial Courts and the Sandiganbayan;

b) Any person who has been adjudged by final judgment by a competent court or
tribunal of having caused/committed any crime involving disloyalty to the duly
constituted government such as rebellion, sedition, violation of the anti-subversion and
firearms laws, or any crime against national security, unless restored to his full civil and
political rights in accordance with law; Provided, That he shall regain his right to vote
automatically upon expiration of five (5) years after service of sentence;

c) Any person declared by competent authority to be insane or incompetent unless such

disqualification has been subsequently removed by a declaration of a proper authority
that such person is no longer insane or incompetent;

d) Any person who did not vote in the two (2) successive preceding regular elections as
shown by their voting records. For this purpose, regular elections do not include
the Sangguniang Kabataan (SK) elections;

e) Any person whose registration has been ordered excluded by the Court; and

f) Any person who has lost his Filipino citizenship.

For this purpose, the clerks of court for the Municipal/Municipal

( Circuit/Metropolitan/Regional Trial Courts and the Sandiganbayan shall furnish the
Election Officer of the city or municipality concerned at the end of each month a
certified list of persons who are disqualified under paragraph (a) hereof, with their
addresses. The Commission may request a certified list of persons who have lost their
Filipino Citizenship or declared as insane or incompetent with their addresses from
other government agencies.

The Election Officer shall post in the bulletin board of his office a certified list of those
persons whose registration were deactivated and the reasons therefor, and furnish
copies thereof to the local heads of political parties, the national central file, provincial
file, and the voter concerned.
With these considerations in mind, petitioners' claim that biometrics validation
imposed under RA 10367, and implemented under COMELEC Resolution Nos. 9721,
9863, and 10013, must perforce fail. To reiterate, this requirement is not a
"qualification" to the exercise of the right of suffrage, but a mere aspect of the
registration procedure, of which the State has the right to reasonably regulate. It was
institutionalized conformant to the limitations of the 1987 Constitution and is a mere
complement to the existing Voter's Registration Act of 1996. Petitioners would do well
to be reminded of this Court's pronouncement in AKBAYAN-Youth, wherein it was held
that:
[T]he act of registration is an indispensable precondition to the right of suffrage.
For registration is part and parcel of the right to vote and an indispensable element in
the election process. Thus, contrary to petitioners' argument, registration cannot and
should not be denigrated to the lowly stature of a mere statutory
requirement. Proceeding from the significance of registration as a necessary requisite
to the right to vote, the State undoubtedly, in the exercise of its inherent police
power, may then enact laws to safeguard and regulate the act of voter's registration
for the ultimate purpose of conducting honest, orderly and peaceful election, to the
incidental yet generally important end, that even pre-election activities could be
performed by the duly constituted authorities in a realistic and orderly manner - one
which is not indifferent, and so far removed from the pressing order of the day and the
prevalent circumstances of the times.[88] (Emphasis and underscoring supplied)
Thus, unless it is shown that a registration requirement rises to the level of a
literacy, property or other substantive requirement as contemplated by the Framers of
the Constitution - that is, one which propagates a socio-economic standard which is
bereft of any rational basis to a person's ability to intelligently cast his vote and to
further the public good - the same cannot be struck down as unconstitutional, as in this
case.

III.

For another, petitioners assert that biometrics validation gravely violates the
Constitution, considering that, applying the strict scrutiny test, it is not poised with a
compelling reason for state regulation and hence, an unreasonable deprivation of the
right to suffrage.[89] They cite the case of White Light Corp. v. City of Manila[90] (White
Light), wherein the Court stated that the scope of the strict scrutiny test covers the
protection of the right of suffrage.[91]

Contrary to petitioners' assertion, the regulation passes the strict scrutiny test.

In terms of judicial review of statutes or ordinances, strict scrutiny refers to the standard
for determining the quality and the amount of governmental interest brought to justify
the regulation of fundamental freedoms. Strict scrutiny is used today to test the validity
of laws dealing with the regulation of speech, gender, or race as well as other
fundamental rights as expansion from its earlier applications to equal protection. [92] As
pointed out by petitioners, the United States Supreme Court has expanded the scope of
strict scrutiny to protect fundamental rights such as suffrage, judicial access, and
interstate travel.[93]

Applying strict scrutiny, the focus is on the presence of compelling, rather than
substantial, governmental interest and on the absence of less restrictive means for
achieving that interest,[94] and the burden befalls upon the State to prove the same. [95]

In this case, respondents have shown that the biometrics validation requirement under
RA 10367 advances a compelling state interest. It was precisely designed to facilitate the
conduct of orderly, honest, and credible elections by containing - if not eliminating, the
perennial problem of having flying voters, as well as dead and multiple registrants.
According to the sponsorship speech of Senator Aquilino L. Pimentel III, the objective of
the law was to cleanse the national voter registry so as to eliminate electoral fraud and
ensure that the results of the elections were truly reflective of the genuine will of the
people.[96] The foregoing consideration is unquestionably a compelling state interest.

Also, it was shown that the regulation is the least restrictive means for achieving the
above-said interest. Section 6[97] of Resolution No. 9721 sets the procedure for
biometrics validation, whereby the registered voter is only required to: (a) personally
appear before the Office of the Election Officer; (b) present a competent evidence of
identity; and (c) have his photo, signature, and fingerprints recorded. It is, in effect, a
manner of updating one's registration for those already registered under RA 8189, or a
first-time registration for new registrants. The re-registration process is amply justified
by the fact that the government is adopting a novel technology like biometrics in order
to address the bane of electoral fraud that has enduringly plagued the electoral
exercises in this country. While registrants may be inconvenienced by waiting in long
lines or by not being accommodated on certain days due to heavy volume of work,
these are typical burdens of voting that are remedied by bureaucratic improvements to
be implemented by the COMELEC as an administrative institution. By and large, the
COMELEC has not turned a blind eye to these realities. It has tried to account for the
exigencies by holding continuous registration as early as May 6, 2014 until October 31,
2015, or for over a period of 18 months. To make the validation process as convenient
as possible, the COMELEC even went to the extent of setting up off-site and satellite
biometrics registration in shopping malls and conducted the same on Sundays.
[98]
 Moreover, it deserves mentioning that RA 10367 and Resolution No. 9721 did not
mandate registered voters to submit themselves to validation every time there is an
election. In fact, it only required the voter to undergo the validation process one (1)
time, which shall remain effective in succeeding elections, provided that he remains an
active voter. To add, the failure to validate did not preclude deactivated voters from
exercising their right to vote in the succeeding elections. To rectify such status, they
could still apply for reactivation[99] following the procedure laid down in Section 28[100] of
RA 8189.

That being said, the assailed regulation on the right to suffrage was sufficiently justified
as it was indeed narrowly tailored to achieve the compelling state interest of
establishing a clean, complete, permanent and updated list of voters, and was
demonstrably the least restrictive means in promoting that interest. [101]

IV.

Petitioners further aver that RA 10367 and the COMELEC Resolution Nos. 9721, 9863,
and 10013 violate the tenets of procedural due process because of the short periods of
time between hearings and notice, and the summary nature of the deactivation
proceedings.[102]

Petitioners are mistaken.

At the outset, it should be pointed out that the COMELEC, through Resolution No.
10013, had directed EOs to: (a) "[p]ost the lists of voters without biometrics data in the
bulletin boards of the City/Municipal hall, Office of the Election Officer and in the
barangay hall along with the notice of ERB hearing;" and (b) [s]end individual notices to
the affected voters included in the generated list of voters without biometrics data.
[103]
 The same Resolution also accords concerned individuals the opportunity to file their
opposition/objection to the deactivation of VRRs not later than November 9, 2015 in
accordance with the period prescribed in Section 4,[104] Chapter I, Resolution No. 9853.
Meanwhile, Resolution Nos. 9721 and 9863 respectively state that "[d]eactivation x x x
shall comply with the requirements on posting, ERB hearing and service of individual
notices to the deactivated voters,"[105] and that the "Reactivation for cases falling under
this ground shall be made during the November 16, 2015 Board hearing." [106] While the
proceedings are summary in nature, the urgency of finalizing the voters' list for the
upcoming May 2016 Elections calls for swift and immediate action on the deactivation
of VRRs of voters who fail to comply with the mandate of RA 10367. After all, in the
preparation for the May 2016 National and Local Elections, time is of the essence. The
summary nature of the proceedings does not depart from the fact that petitioners were
given the opportunity to be heard.
Relatedly, it deserves emphasis that the public has been sufficiently informed of the
implementation of RA 10367 and its deactivation feature. RA 10367 was duly published
as early as February 22, 2013,[107] and took effect fifteen (15) days after.[108] Accordingly,
dating to the day of its publications, all are bound to know the terms of its provisions,
including the consequences of non-compliance. As implemented, the process of
biometrics validation commenced on July 1, 2013, or approximately two and a half (2
1/2) years before the October 31, 2015 deadline. To add, the COMELEC conducted a
massive public information campaign, i.e., NoBio-NoBoto, from May 2014 until October
31, 2015, or a period of eighteen (18) months, whereby voters were reminded to update
and validate their registration records. On top of that, the COMELEC exerted efforts to
make the validation process more convenient for the public as it enlisted the assistance
of malls across Metro Manila to serve as satellite registration centers and declared
Sundays as working days for COMELEC offices within the National Capital Region and in
highly urbanized cities.[109] Considering these steps, the Court finds that the public has
been sufficiently apprised of the implementation of RA 10367, and its penalty of
deactivation in case of failure to comply. Thus, there was no violation of procedural due
process.

V.

Petitioners aver that the poor experience of other countries - i.e., Guatemala, Britain,
Cote d'lvoire, Uganda, and Kenya - in implementing biometrics registration should serve
as warning in adhering to the system. They highlighted the inherent difficulties in
launching the same such as environmental and geographical challenges, lack of training
and skills, mechanical breakdown, and the need for re-registration. They even adrnitted
that while biometrics may address electoral fraud caused by multiple registrants, it does
not, however, solve other election-related problems such as vote-buying and source-
code manipulation.[110]

Aside from treading on mere speculation, the insinuations are improper. Clearly,
petitioners' submissions principally assail the wisdom of the legislature in adopting the
biometrics registration system in curbing electoral fraud. In this relation, it is significant
to point out that questions relating to the wisdom, morality, or practicability of statutes
are policy matters that should not be addressed to the judiciary. As elucidated in the
case of Fariñas v. The Executive Secretary:[111]
 [P]olicy matters are not the concern of the Court. Government policy is within
the exclusive dominion of the political branches of the government. It is not for this
Court to look into the wisdom or propriety of legislative determination. Indeed,
whether an enactment is wise or unwise, whether it is based on sound economic theory,
whether it is the best means to achieve the desired results, whether, in short, the
legislative discretion within its prescribed limits should be exercised in a particular
manner are matters for the judgment of the legislature, and the serious, conflict of
opinions does not suffice to bring them within the range of judicial cognizance.
[112]
 (Emphases and underscoring supplied)
In the exercise of its legislative power, Congress has a wide latitude of discretion
to enact laws, such as RA 10367, to combat electoral fraud which, in this case, was
through the establishment of an updated voter registry. In making such choices to
achieve its desired result, Congress has necessarily sifted through the policy's wisdom,
which this Court has no authority to review, much less reverse. [113] Whether RA 10367
was wise or unwise, or was the best means in curtailing electoral fraud is a question that
does not present a justiciable issue cognizable by the courts. Indeed, the reason behind
the legislature's choice of adopting biometrics registration notwithstanding the
experience of foreign countries, the difficulties in its implementation, or its concomitant
failure to address equally pressing election problems, is essentially a policy question
and, hence, beyond the pale of judicial scrutiny.

VI.

Finally, petitioners' proffer that Resolution No. 9863 which fixed the deadline for
validation on October 31, 2015 violates Section 8 of RA 8189 which states:
Section 8. System of Continuing Registration of Voters. - The personal filing of
application of registration of voters shall be conducted daily in the office of the Election
Officer during regular office hours. No registration shall, however, be conducted during
the period starting one hundred twenty (120) days before a regular election and
ninety (90) days before a special election. (Emphasis added.)
The position is, once more, wrong.

Aside from committing forum shopping by raising this issue despite already being
subject of a prior petition filed before this Court, i.e., G.R. No. 220918,[114] petitioners fail
to consider that the 120- and 90-day periods stated therein refer to the prohibitive
period beyond which voter registration may no longer be conducted. As already
resolved in this Court's Resolution dated December 8, 2015 in G.R. No. 220918, the
subject provision does not mandate COMELEC to conduct voter registration up to such
time; rather, it only provides a period which may not be reduced, but may be extended
depending on the administrative necessities and other exigencies. [115] Verily, as the
constitutional body tasked to enforce and implement election laws, the COMELEC has
the power to promulgate the necessary rules and regulations to fulfil its mandate.
[116]
 Perforce, this power includes the determination of the periods to accomplish certain
pre-election acts,[117] such as voter registration.

At this conclusory juncture, this Court reiterates that voter registration does not begin
and end with the filing of applications which, in reality, is just the initial phase that must
be followed by the approval of applications by the ERB. [118] Thereafter, the process of
filing petitions for inclusion and exclusion follows. These steps are necessary for the
generation of the1 final list of voters which, in turn, is a pre-requisite for the preparation
and completion of the Project of Precincts (POP) that is vital for the actual elections. The
POP contains the number of registered voters in each precinct and clustered precinct,
the names of the barangays, municipalities, cities, provinces, legislative districts, and
regions included in the precincts, and the names and locations of polling centers where
each precinct and clustered precinct are assigned. [119] The POP is necessary to determine
the total number of boards of election inspectors to be constituted, the allocation of
forms and supplies to be procured for the election day, the number of vote counting
machines and other paraphernalia to be deployed, and the budget needed. More
importantly, the POP will be used as the basis for the fmalization of the Election
Management System (EMS) which generates the templates of the official ballots and
determines the voting jurisdiction of legislative districts, cities, municipalities, and
provinces.[120] The EMS determines the configuration of the canvassing and consolidation
system for each voting jurisdiction. Accordingly, as the constitutional body specifically
charged with the enforcement and administration of all laws and regulations relative to
the conduct of an election, plebiscite, initiative, referendum, and recall, [121] the
COMELEC should be given sufficient leeway in accounting for the exigencies of the
upcoming elections. In fine, its measures therefor should be respected, unless it is
clearly shown that the same are devoid of any reasonable justification.

WHEREFORE, the petition is DISMISSED due to lack of merit. The temporary restraining

order issued by this Court on December 1, 2015 is consequently DISSOLVED.
SO ORDERED.

EN BANC
[ G.R. No. 189868, December 15, 2009 ]
KABATAAN PARTY-LIST REPRESENTATIVE RAYMOND V. PALATINO,
ALVIN A. PETERS, PRESIDENT OF THE NATIONAL UNION OF
STUDENTS OF THE PHILIPPINES (NUSP), MA. CRISTINA ANGELA
GUEVARRA, CHAIRPERSON OF THE STUDENT CHRISTIAN
MOVEMENT OF THE PHILIPPINES (SCMP), VENCER MARI E.
CRISOSTOMO, SECRETARY GENERAL OF KABATAAN PARTY-LIST,
VIJAE O. ALQUISOLA, PRESIDENT OF THE COLLEGE EDITORS GUILD
OF THE PHILIPPINES (CEGP), DIANNE KRISTEL M. ASUELO,
SECRETARY GENERAL OF THE KABATAANG ARTISTA PARA SA
TUNAY NA KALAYAAN (KARATULA), KENNETH CARLISLE EARL
EUGENIO, ANA KATRINA V. TEJERO, VICTOR LOUIS E. CRISOSTOMO,
JACQUELINE ALEXIS S. MERCED, AND JADE CHARMANE ROSE J.
VALENZUELA, PETITIONERS, VS. COMMISSION ON ELECTIONS,
RESPONDENT.

DECISION

CARPIO MORALES, J.:

At the threshold once again is the right of suffrage of the sovereign Filipino people - the
foundation of Philippine democracy. As the country prepares to elect its next set of
leaders on May 10, 2010, the Court upholds this primordial right.

On November 12, 2008, respondent Commission on Elections (COMELEC) issued

Resolution No. 8514[1] which, among other things, set December 2, 2008 to December 15,
2009 as the period of continuing voter registration using the biometrics process in all
areas nationwide, except in the Autonomous Region of Muslim Mindanao. Subsequently,
the COMELEC issued Resolution No. 8585[2] on February 12, 2009 adjusting the
deadline of voter registration for the May 10, 2010 national and local elections to October
31, 2009, instead of December 15, 2009 as previously fixed by Resolution No. 8514.
The intense public clamor for an extension of the October 31, 2009 deadline
notwithstanding, the COMELEC stood firm in its decision not to extend it, arguing
mainly that it needs ample time to prepare for the automated elections. Via the present
Petition for Certiorari and Mandamus filed on October 30, 2009,[3] petitioners challenge
the validity of COMELEC Resolution No. 8585 and seek a declaration of its nullity.

Petitioner Raymond V. Palatino, a youth sectoral representative under the Kabataan

Party-list, sues as a member of the House of Representatives and a concerned citizen,
while the rest of petitioners sue as concerned citizens.

Petitioners contend that the serious questions involved in this case and potential
disenfranchisement of millions of Filipino voters justify resort to this Court in the first
instance, claiming that based on National Statistics Office (NSO) data, the projected
voting population for the May 10, 2010 elections is 3,758,964 for the age group 18-19
and 8,756,981 for the age group 20-24, or a total of 12,515,945.

Petitioners further contend that COMELEC Resolution No. 8585 is an unconstitutional

encroachment on the legislative power of Congress as it amends the system of continuing
voter registration under Section 8 of Republic Act No. 8189 (RA 8189), otherwise known
as The Voter's Registration Act of 1996, reading:

Section 8. System of Continuing Registration of Voters. The personal filing of application

of registration of voters shall be conducted daily in the office of the Election Officer
during regular office hours. No registration shall, however, be conducted during the
period starting one hundred twenty (120) days before a regular election and ninety (90)
days before a special election.

They thus pray that COMELEC Resolution No. 8585 be declared null and void, and that
the COMELEC be accordingly required to extend the voter registration until January 9,
2010 which is the day before the 120-day prohibitive period starting on January 10, 2010.

The COMELEC maintains in its Comment filed on December 7, 2009 that, among other
things, the Constitution and the Omnibus Election Code confer upon it the power to
promulgate rules and regulations in order to ensure free, orderly and honest elections; that
Section 29 of Republic Act No. 6646 (RA 6646)[4] and Section 28 of Republic Act No.
8436 (RA 8436)[5] authorize it to fix other dates for pre-election acts which include voter
registration; and that its schedule of pre-election acts shows that the October 31, 2009
deadline of voter registration was impelled by operational and pragmatic considerations,
citing Akbayan-Youth v. COMELEC[6] wherein the Court denied a similar prayer for an
extension of the December 27, 2000 deadline of voter registration for the May 14, 2001
elections.

The petition is impressed with merit.

The right of suffrage lies at the heart of our constitutional democracy. The right of every
Filipino to choose the leaders who will lead the country and participate, to the fullest
extent possible, in every national and local election is so zealously guarded by the
fundamental law that it devoted an entire article solely therefor:

ARTICLE V
SUFFRAGE

SECTION 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have resided in
the Philippines for at least one year and in the place wherein they propose to vote for at
least six months immediately preceding the election. No literacy, property or other
substantive requirement shall be imposed on the exercise of suffrage.

SECTION 2. The Congress shall provide a system of securing the secrecy and sanctity of
the ballot as well as a system for absentee voting by qualified Filipinos abroad.

The Congress shall also design a procedure for the disabled and the illiterates to vote
without the assistance of other persons. Until then, they shall be allowed to vote under
existing laws and such rules as the Commission on Elections may promulgate to protect
the secrecy of the ballot.

Preserving the sanctity of the right of suffrage ensures that the State derives its power
from the consent of the governed. The paramount importance of this right is also a
function of the State policy of people empowerment articulated in the constitutional
declaration that sovereignty resides in the people and all government authority emanates
from them,[7] bolstered by the recognition of the vital role of the youth in nation-building
and directive to the State to encourage their involvement in public and civic affairs.[8]

It is against this backdrop that Congress mandated a system of continuing voter

registration in Section 8 of RA 8189 which provides:

Section 8. System of Continuing Registration of Voters. The personal filing of application

of registration of voters shall be conducted daily in the office of the Election Officer
during regular office hours. No registration shall, however, be conducted during the
period starting one hundred twenty (120) days before a regular election and ninety (90)
days before a special election. (emphasis and underscoring supplied)

The clear text of the law thus decrees that voters be allowed to register daily during
regular offices hours, except during the period starting 120 days before a regular election
and 90 days before a special election.
By the above provision, Congress itself has determined that the period of 120 days before
a regular election and 90 days before a special election is enough time for the COMELEC
to make ALL the necessary preparations with respect to the coming elections including:
(1) completion of project precincts, which is necessary for the proper allocation of
official ballots, election returns and other election forms and paraphernalia; (2)
constitution of the Board of Election Inspectors, including the determination of the
precincts to which they shall be assigned; (3) finalizing the Computerized Voters List; (4)
supervision of the campaign period; and (5) preparation, bidding, printing and
distribution of Voter's Information Sheet. Such determination of Congress is well within
the ambit of its legislative power, which this Court is bound to respect. And the
COMELEC's rule-making power should be exercised in accordance with the
prevailing law.[9]

Respecting the authority of the COMELEC under RA 6646 and RA 8436 to fix other
dates for pre-election acts, the same is not in conflict with the mandate of continuing
voter registration under RA 8189. This Court's primary duty is to harmonize laws rather
than consider one as repealed by the other. The presumption is against inconsistency or
repugnance and, accordingly, against implied repeal. For Congress is presumed to know
the existing laws on the subject and not to enact inconsistent or conflicting statutes. [10]

Both R.A. No. 6646, Section 29 and R.A. No. 8436, Section 28 grant the COMELEC the
power to fix other periods and dates for pre-election activities only if the same cannot be
reasonably held within the period provided by law. This grant of power, however, is
for the purpose of enabling the people to exercise the right of suffrage - the common
underlying policy of RA 8189, RA 6646 and RA 8436.

In the present case, the Court finds no ground to hold that the mandate of continuing
voter registration cannot be reasonably held within the period provided by RA 8189, Sec.
8 - daily during office hours, except during the period starting 120 days before the May
10, 2010 regular elections. There is thus no occasion for the COMELEC to exercise its
power to fix other dates or deadlines therefor.

The present case differs significantly from Akbayan-Youth v. COMELEC.[11] In said case,

the Court held that the COMELEC did not commit abuse of discretion in denying the
request of the therein petitioners for an extension of the December 27, 2000 deadline of
voter registration for the May 14, 2001 elections. For the therein petitioners filed their
petition with the Court within the 120-day prohibitive period for the conduct of voter
registration under Section 8 of RA 8189, and sought the conduct of a two-day registration
on February 17 and 18, 2001, clearly within the 120-day prohibitive period.

The Court in fact suggested in Akbayan-Youth that the therein petitioners could have, but
had not, registered during the period between the December 27, 2000 deadline set by the
COMELEC and before the start of the 120-day prohibitive period prior to the election
date or January 13, 2001, thus:

[T]here is no allegation in the two consolidated petitions and the records are bereft of any
showing that anyone of herein petitioners has filed an application to be registered as a
voter which was denied by the COMELEC nor filed a complaint before the respondent
COMELEC alleging that he or she proceeded to the Office of the Election Officer to
register between the period starting from December 28, 2000 to January 13, 2001, and
that he or she was disallowed or barred by respondent COMELEC from filing his
application for registration. While it may be true that respondent COMELEC set the
registration deadline on December 27, 2000, this Court is of the firm view
that petitioners were not totally denied the opportunity to avail of the continuing
registration under R.A. 8189.[12] (emphasis and underscoring supplied)

The clear import of the Court's pronouncement in Akbayan-Youth is that had the therein
petitioners filed their petition - and sought an extension date that was - before the 120-
day prohibitive period, their prayer would have been granted pursuant to the mandate of
RA 8189. In the present case, as reflected earlier, both the dates of filing of the petition
(October 30, 2009) and the extension sought (until January 9, 2010) are prior to the 120-
day prohibitive period. The Court, therefore, finds no legal impediment to the extension
prayed for.

WHEREFORE, the petition is GRANTED. COMELEC Resolution No. 8585 is

declared null and void insofar as it set the deadline of voter registration for the May 10,
2010 elections on October 31, 2009. The COMELEC is directed to proceed with dispatch
in reopening the registration of voters and holding the same until January 9, 2010. This
Decision is IMMEDIATELY EXECUTORY.

SO ORDERED.

EN BANC
[ G.R. No. 222731, March 17, 2016 ]
BAGUMBAYAN-VNP MOVEMENT, INC. AND RICHARD J. GORDON, AS
CHAIRPERSON OF THE BAGUMBAYAN-VNP MOVEMENT, INC. VS.
COMMISSION ON ELECTIONS

Sirs/Mesdames:
 Please take notice that the Court en banc issued a Resolution dated MARCH 17,
2016, which reads as follows:

"G.R. No. 222731 (Bagumbayan-VNP Movement, Inc. and Richard J. Gordon, as

Chairperson of Bagumbayan-VNP Movement, Inc. v. Commission on Elections) - For
this Court's resolution is the Commission on Elections' Motion for Reconsideration [1] of
the March 8, 2016 Resolution[2] of this Court.

On February 22, 2016, petitioners filed a Petition[3] for Mandamus praying that a writ be
issued to compel the Commission on Elections to comply with the provisions of Section
6[4](e), (f), and (n) of Republic Act No. 8436, as amended.[5 ] In view of the urgent nature
of the case, this Court ordered the Commission on Elections to comment on the Petition
within a non-extendible period of five (5) days. [6] However, the Commission on Elections
failed to file the Comment within the time allotted. [7] Hence, this Court was constrained
to decide the case based on the merits presented solely in the Petition. [8]

In the Resolution dated March 8, 2016, this Court granted the Petition and issued a Writ
of Mandamus.[9] Thus:

WHEREFORE, the Petition for Mandamus is GRANTED.  The Commission on

Elections is ORDERED to enable the vote verification feature of the vote-counting
machines, which prints the voter's choices without prejudice to the issuance of
guidelines to regulate the release and disposal of the issued receipts in order to ensure
a clean, honest, and orderly elections such as, but not limited to, ensuring that after
voter verification, receipts should be deposited in a separate ballot box and not taken
out of the precinct.

SO ORDERED.[10]   (Emphasis in the original)

In its Motion for Reconsideration, [11] the Commission on Elections restates some
of the arguments presented in a Comment [12] attached to a Motion[13] to Admit, which
were belatedly filed. The Commission on Elections also presents new arguments
regarding the logistical difficulties it will face to comply with this Court's Writ of
Mandamus.[14]

On March 15, 2016, this Court set the case for oral arguments on March 17, 2016 [15] to
allow the parties to present their case and arguments on the following issues:
 A. Whether the March 8, 2016 Writ of Mandamus can be complied with in good
faith for the May 9, 2016 elections considering the material time left for
preparations;

B. Whether there are sufficient safeguards that can meet the purpose, if not the
letter, of the statutory requirement of a voter-verified paper audit trail [.] [16]

We deny the Motion for Reconsideration.

The Commission on Elections recognizes the mandatory nature of the voter-verified

paper audit trail (VVPAT) requirement in the Terms of Reference [17] for the 2016
National and Local Elections Automation Project. The Terms of Reference clearly specify
that the machine must have a "vote verification feature which shall display and print the
voter's choices[.]"[18]

Yet, the Commission on Elections argues that the provision of paper ballots complies
with the VVPAT requirement under Section 6(e), (f), and (n) of Republic Act No. 8436, as
amended.[19] It argues that the purpose of the VVPAT is to provide "(1) system
auditability which provides supporting documentation for verifying the correctness of
reported election results; and (2) providing the voter a system of verification to find
out whether or not the machine has registered his/her choice." [20] The Commission on
Elections emphasizes that "the law does not require each voter to personally verify
whether the [vote-counting machines] have been able to count [his or her] votes." [21]

According to the Commission on Elections, a voter's receipt requirement is only

necessary when it uses a direct recording electronic election system, or a system where
voters input their votes on the machine's monitor and select candidates through a
touch-screen terminal.[22] In the direct recording electronic election system, only
electronic audit trails are created; hence, a voter's receipt is necessary in order to
provide a paper-based audit trail to "prevent electoral fraud and to verify that the votes
were interpreted correctly by the machine.''[23]

On the other hand, our current system of automated elections is through an optical
mark reader, which requires voters to utilize paper ballots in order to cast votes. Thus,
according to the Commission on Elections:
 The situation is entirely different in a paper-based election system where, as in
the present case, there are numerous audit trails of the votes cast which protect the
sanctity of the vote, specifically: (1) the paper ballot, (2) the ballot image, (3) storage
media cards, and (4) the on-screen verification functionality. In this instance where
there is a paper audit trail of the paper ballot and other various electronic audit trails,
the issuance of a voting receipt is a surplusage. [24]
The Commission on Elections cites Archbishop Capalla, et al. v. Commission on
Elections[25] and Roque, Jr., et al. v. Commission on Elections, et al. [26] as this Court's
recognition of the difference in the demands of auditability between the direct
recording electronic and the optical mark reader election systems. [27] The Commission
on Elections also notes that petitioner Richard J. Gordon himself acknowledged that
paper audit trails are not limited to voting receipts during the Senate deliberations for
the amendments of Republic Act No. 8436. [28]

The law is clear. A voter's receipt is necessary to fully comply with the requisites of
Section 6(e), (f), and (n) of Republic Act No. 8436, as amended. The paper ballots cannot
substitute for the voter's receipt.

Section 6(e), (f), and (n) of Republic Act No. 8436, as amended, may be interrelated but
are distinct requirements under the law. To recall, the provision states:

SEC. 6. Minimum System Capabilities. —The automated election system must at

least have the following functional capabilities:

. . . .

(e)       Provision for voter verified paper audit trail;

(f)        System auditability which provides supporting documentation for verifying the
correctness of reported election results;

. . . .

(n) Provide the voter a system of verification to find out whether or not the machine has
registered his choice[.]
Section 6(e) requires a "voter verified paper audit trail[.]" The phrase "voter verified"
modifies the "paper audit trail[,]" which means that the voter himself or herself must
verify the paper audit trail. It is incorrect for the Commission on Elections to argue that
the law does not require each voter to verify whether the vote-counting machines
recorded his or her votes properly. In addition to the clear phrasing under Section 6(e),
Section 6(n) emphasizes the need for the voter to verify whether or not the machine has
properly registered his or her choice.

If the law only intended for system auditability, then it would not have included Section
6(e) and (n), and would just have relied on Section 6(f).

Section 6(e) cannot be interpreted to mean that the paper ballots may be considered as
the voter-verified paper audit trail. The paper ballots may be a form of a paper audit
trail, but they are not voter-verified. Voter verification may only be done after the voter
casts his or her votes. Voter verification of whether the vote-counting machine
considered his or her ballot cannot simply be done with just the paper ballot.

The paper ballot's counterpart in a direct recording electronic election system is the
touchscreen terminal, not the voter's receipt. The Commission on Elections pointed out
that in a direct recording electronic election system, the voter's receipt is necessary for
the voter to be able to verify if his or her vote was correctly recorded by the machine.
[29]
 This necessity is not eliminated merely because the Commission on Elections chose
the optical mark reader voting machines instead of a direct recording electronic
machine. Even if the voter records his or her votes through a paper ballot, without a
voter's receipt, the voter still cannot verify if the machine correctly read his or her
vote. While the paper ballot assists in preventing electoral fraud, it does not provide the
security to the voter that the machine has correctly recorded his or her vote.

Nothing in the law states that the VVPAT requirement is only limited to direct recording
electronic election systems. Not even this Court's earlier Decisions limit the VVPAT
requirement to the direct recording electronic election system.

The Commission on Elections incorrectly cited our Decisions in Archbishop

Capalla  and Roque, Jr. Both cases questioned the propriety of the agreements between
Commission on Elections and Smartmatic-TIM. [30] In both cases, the petitioners did not
question the resolutions of the Commission on Elections denying the provision of a
voter's receipt.

In Archbishop Capalla, the petitioners questioned the Commission on Elections' exercise

of the option to purchase the Precinct Count Optical Scan (PCOS) machines. [31] This Court
declared that the Deed of Sale between the Commission on Elections and Smarmatic-
TIM as valid.[32] The Commission on Elections cited the Separate Concurring Opinion of
Associate Justice Presbitero J. Velasco, Jr., [33] which stated:

[I]t is important to note that the AES in question is still paper-based, unlike a
Direct Recording Electronic election where the vote is cast directly on a machine by the
use of a touchscreen, touchpad, keypad or other device, and the machine records the
individual votes and calculates the vote totals electronically; thus, without a printed
receipt, it leaves no paper-trail which can be utilized for audit purposes. [34] (Citations
omitted)

It is a grave error to read Associate Justice Velasco's Separate Concurring Opinion as an

indication that voter's receipts are unnecessary under an optical mark reader election
system.

The Commission on Elections also claimed that in Roque, Jr., this Court "ruled that the
paper ballot satisfies the VVPAT requirement[.]"[35] The relevant portion in the Roque,
Jr. case stated:

Intervenor Cuadra's concern relates to the auditability of the election results. In

this regard, it may suffice to point out that PCOS, being a paper-based technology,
affords audit since the voter would be able, if need be, to verify if the machine had
scanned, recorded and counted his vote properly. Moreover, it should also be noted
that the PCOS machine contains an LCD screen, one that can be programmed or
configured to display to the voter his votes as read by the machine. [36] (Citation omitted)

There is no categorical ruling in Roque, Jr. that the paper ballot satisfies the VVPAT
requirement. The discussion only mentions that the PCOS machine affords auditability.
The paragraph talks about two kinds of audits: through paper or through the LCD
screen. Nothing in the cited text states that the paper ballots are the mechanism where
the voter can verify if the machine properly scanned, recorded, and counted the vote
properly.

Even if we consider Former Chief Justice Reynato Puno's Separate Concurring Opinion,
nothing in his conclusive remarks states that the paper ballots fulfill the voter-verified
paper audit trail feature. Chief Justice Puno merely stated that the PCOS System "ha[d] a
provision for system auditability and a voter-verified paper trail." [37] While he did
mention that official ballots could be used for a manual recount, the Opinion did not
state that the paper ballots could substitute for the voter's receipt.

The Commission on Elections formally manifested its Resolution No. 10071 [38] dated 
March  3,  2016,  on the  use  the  on-screen  verification functionality. According to the
Commission on Elections:

20.     The  on-screen verification of votes  allows the voter to immediately

confirm whether the VCM has correctly registered his/her chosen candidates. Once the
paper ballot is fed into the VCM, the monitor flashes the voter's chosen candidates and
only then asks the voter to confirm whether the VCM has registered his/her paper
ballot, before it is "dropped into the ballot box."

21.     The additional measure of on-screen verification, apart from the paper ballot, is a
protective redundancy to ensure honest and credible elections.   It also allows the voter
to rest assured that his/her votes are identical with the machine counts. The COMELEC
has therefore enabled numerous security features of the paper ballot and the VCM,
which render electronic electoral fraud highly improbable. [39] (Citation omitted)

While the on-screen verification feature is an improvement that provides voters with a
system of verification to find out whether or not the machine has registered their
choice, the feature only complies with the requirement under Section 6(n), and not
Section 6(e). The on-screen verification is not the VVPAT because it is not paper-based.
Hence, it only complies with one of the two requisites of the VVPAT as we enumerated
in our Resolution dated March 8, 2016. [40]

The Commission on Elections also argued that the voter's receipt could not have
avoided the situation in Mayor Maliksi v. Commission on Elections, et al. [41] because in
instances of over voting, the machine automatically invalidates the votes cast for a
certain position.[42] The problem in Mayor Maliksi arose after the votes were cast, not
during.[43]

The Commission on Elections erroneously read Mayor Maliksi. We reiterate that the

problem in Mayor Maliksi shows the value of a separate paper audit trail apart from the
actual ballots. In Mayor Maliksi, the paper ballots did not match the digitized ballot
images because they were tampered with after they were read by the vote-counting
machines.[44] While this Court ruled on the evidentiary value of the digitized ballot
images, ultimately, due to procedural infirmities, the re-count using the digitized ballot
images was not considered by this Court.

The governing statutory policy is that the true will of the electorate is better secured if
the Commission on Elections generates VVPAT. As recognized by the Commission on
Elections, the paper ballots in Mayor Maliksi were tampered with by shading another
candidate's circle for a specific position after the votes were cast. [45] A voter's receipt
would not be vulnerable to the same type of tampering. The name of the candidate
chosen by the voter for the position would already be printed on the voter's receipt and
could no longer be changed. It would be more difficult to subject the receipts to
tampering or fraud. In instances when the paper ballots are subject to post-election
tampering, the digitized ballot images, alongside the voter's receipts, may be considered
by the Commission on Elections.

The digitized ballot images by themselves cannot fulfill the VVPAT requirement because
as we stated in our earlier Resolution, the VVPAT must allow the individual voters to
verify whether the machines have been able to count their votes, and that the
verification at minimum should be paper-based. Both these purposes are not achieved
with mere digital ballot images.

We clarify that the voter's receipt is indeed evidence of the vote cast, but it is not the
only piece of evidence that may be relied upon for all purposes. The voter's receipt
should be considered alongside the digital image and the actual ballot. The voter's
receipt is principally for the voter to physically verify his or her vote.

Despite the arguments presented by the Commission on Elections, Republic Act No.
8436, as amended, demands the provision of a voter's receipt. It was because of this
need to implement the law as it is written that we have issued the Writ of Mandamus as
soon as we could.

There is an absolute constitutional necessity of holding clean, honest, and orderly

elections on the second Monday of May 2016. Unless a law is passed, these elections
cannot be postponed.[46] The statutory mandate to implement automated elections is
likewise evident.

We recognize that there will be technical and logistical difficulties in enforcing our
Resolution dated March 8, 2016, with the elections approaching in the next two (2)
months. However, after the oral arguments on March 17, 2016, this Court has become
convinced that the Commission on Elections is capable of fully implementing the VVPAT
feature in the vote-counting machines in accordance with this Court's Writ of
Mandamus.

The Commission on Elections conducted a demonstration of the workings of the vote-

counting machine. It also presented a timeline that proposes revising the vote-counting
machines' source code so that (a) the receipt will indicate certain security features such
as the ballot number, precinct number, and hash code, and that (b) the machines will
not shut off if the paper for receipts jams or runs out. The Commission on Elections
presented a timeline that moves the election day to May 23, 2016.

The Commission on Elections categorically manifested that, if the source code is not
amended, the vote-counting machines can still be reconfigured to enable the machines
to generate the voter's receipts in time for the May 9, 2016 elections.

We clarify. This Court's Writ of Mandamus requires a voter's receipt. The Writ of
Mandamus is substantially complied with when a voter's receipt is printed and the voter
can physically verify his or her vote. Additional features may be added in the voter's
receipt for future elections.

Also, during the Oral Arguments, Commission on Elections Chairperson Andres Bautista
raised their concerns regarding the lack of prosecutorial mechanisms against individuals
who keep the voter's receipts and take them outside the precinct. Contrary to the views
of the Commission on Elections Chairperson, the Omnibus Election Code provides for an
election offense that applies to the scenario:

ARTICLE XXII

Election Offenses

SECTION 261. Prohibited Acts. - The following shall be guilty of an election offense:

....

(z) On voting:

....

(12) Any person who, without legal authority, destroys, substitutes or takes away from
the possession of those having legal custody thereof, or from the place where they are
legally deposited, any election form or document or ballot box which contains official
ballots or other documents used in the election.

The voter's receipt or VVPAT is an official election document or election paraphernalia

because it is a document generated in the course of the election. The Commission on
Elections has enough power and discretion to instruct the Board of Election Inspectors
to have legal custody of the voter's receipt after the voter inspects the contents of these
receipts, or otherwise to mandate that the receipts be deposited in the old ballot boxes
or any other receptacle to be used by the Commission on Elections. Any person who
takes away the voter's receipt—an official election document— commits an election
offense under Section 261 (z) (12) of the Omnibus Election Code.

The Commission on Elections has assured this Court that it is capable and has the
competence to address all issues and problems that may arise before, during, and after
the elections. These include paper jams or machine malfunctions, possible extension of
the voting period, improvement of voter's experience, and training of officials and staff.
The Commission on Elections has assured that it will perform its constitutionally and
statutorily mandated tasks to ensure a free, orderly, honest, peaceful, credible, and
automated elections on May 9, 2016, as constitutionally required.
WHEREFORE, the Commission on Elections' Motion for Reconsideration dated March
11, 2016 filed by respondent Commission on Elections is DENIED WITH FINALITY, the
basic issues raised having previously been duly considered and passed upon by this
Court in its Resolution dated March 8, 2016.

The Writ of Mandamus issued in the Resolution dated March 8, 2016 must be fully
implemented for the upcoming elections. The Commission on Elections is ordered to
enable the vote verification feature of the vote-counting machines, which prints the
voter's choices without prejudice to the issuance of guidelines to regulate the release
and disposal of the issued receipts as well as other measures that it deems necessary to
ensure clean, honest, and orderly elections such as, but not limited to, ensuring that
after voter verification, receipts should be deposited in a separate ballot box and not be
taken out of the precinct." Carpio and Bersamin, JJ., on leave.

EN BANC

G.R. No. 207851               July 8, 2014

ANGEL G. NAVAL, Petitioner,
vs.
COMMISSION ON ELECTIONS and NELSON B. JULIA, Respondents.

DECISION

REYES, J.:

A politician thinks of the next election –

a statesman of the next generation.

- James Freeman Clarke, American preacher and author

The Case

A provincial board member cannot be elected and serve for more than three consecutive terms. But
then, the Court is now called upon to resolve the following questions. First.What are the
consequences to the provincial board member’s eligibility to run for the same elective position if the
legislative district, which brought him orher to office to serve the first two consecutive terms, be
reapportioned in such a way that 8 out of its 10 town constituencies are carved out and renamed as
another district? Second. Is the provincial board member’s election to the same position for the third
and fourth time, but now in representation ofthe renamed district, a violation of the three-term limit
rule?
Before the Court is a Petition for Certiorariwith an Urgent Prayer for the Issuance of a Temporary
Restraining Order and a Writ of Preliminary Injunction  filed under Rule 64 of the Rules of Court to
1

assail the following resolutions of the public respondent Commission on Elections (COMELEC):

(a) Resolution  (first assailed resolution) issued by the Second Division on March 5, 2013, in SPA
2

No. 13-166 (DC), granting the petition filed by Nelson B. Julia (Julia), seeking to cancel the
Certificate of Candidacy  (COC) as Member of the Sangguniang Panlalawiganof Camarines Sur
3

(Sanggunian) of Angel G. Naval (Naval), who is allegedly violating the three-term limit imposed upon
elective local officials as provided for in Article X, Section 8  of the 1987 Constitution, and Section
4

43(b)  of the Local Government Code (LGC); and

5

(b) En BancResolution  (second assailed resolution) issued on June 5, 2013, denying Naval’s Motion
6

for Reconsideration  to the Resolution dated March 5, 2013.

7

Antecedents

From 2004 to 2007 and 2007 to 2010, Naval had been elected and had served as a member of the
Sanggunian, Second District, Province of Camarines Sur.

On October 12, 2009, the President approved Republic Act (R.A.) No. 9716,  which reapportioned
8

the legislative districts in Camarines Sur in the following manner:

[[reference - http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/2014/july2014/207851.pdf]]

District Before the Enactment of After the Enactment of

R.A. No. 9716 R.A. No. 9716

1st Libmanan, Minalabac, Del Gallego, Ragay, Lupi,

Pamplona, Pasacao, San Sipocot, Cabusao

Fernando, Del Gallego,

Ragay, Lupi, Sipocot,

Cabusao

2nd Naga City, Pili, Ocampo, Libmanan, Minalabac,

Camaligan, Canaman, Pamplona, Pasacao, San

Magarao, Bombon, Fernando, Gainza, Milaor

Calabanga,  Gainza,
9

Milaor

3rd Caramoan, Garchitorena, Naga City, Pili, Ocampo,

 Goa, Lagonoy, Presentacion,
Camaligan, Canaman,
Sangay, San Jose, Tigaon,
Magarao, Bombon,
Tinambac, Siruma
Calabanga

4th Iriga City, Baao, Balatan, Caramoan, Garchitorena,

Bato, Buhi, Bula, Nabua Goa, Lagonoy,

Presentacion, Sangay, San

Jose, Tigaon, Tinambac,

Siruma

5th   Iriga City, Baao, Balatan, Bato,

Buhi, Bula, Nabua

Notably, 8 out of 10 towns were taken from the old Second District to form the present Third District.
The present Second District is composed of the two remaining towns, Gainza and Milaor, merged
with five towns from the old First District.

In the 2010 elections, Naval once again won as among the members of the Sanggunian, Third
District. He served until 2013.

In the 2013 elections, Naval ran anewand was re-elected as Member of the Sanggunian, Third
District.

Julia was likewise a SanggunianMember candidate from the Third District in the 2013 elections. On
October 29, 2012, he invoked Section 78  of the Omnibus Election Code (OEC) and filed beforethe
10

COMELEC a Verified Petition to Deny Due Course or to Cancel the Certificate of Candidacy  of 11

Naval. Julia posited that Naval had fully served the entire Province of Camarines Sur for three
consecutive terms as a member of the Sanggunian, irrespective of the district he had been elected
from. The three-term limit rule’s application is more with reference to the same local elective post,
and not necessarily in connection with an identical territorial jurisdiction. Allowing Naval to run as a
Sanggunianmember for the fourth time is violative of the inflexible three-term limit rule enshrined in
the Constitution and the LGC, which must be strictly construed. 12

The Resolution of the COMELEC Second Division

In the first assailed resolution issued on March 5, 2013, the COMELEC Second Division cancelled
Naval’s COC on grounds stated below:

[W]hen a candidate for public office swears in his COC that he is eligible for the elective posts he
seeks, while, in reality, he knowingly lacks the necessary requirements for eligibility, he commits a
false material misrepresentation cognizable under Section 78 of the [OEC].
xxxx

The Supreme Court[,] in the case of Lonzanida v. [COMELEC][,] detailed the important components
of[Article X, Section 8 of the Constitution]:

This Court held that the two conditions for the application of the disqualification must concur: 1) that
the official concerned has been elected for three consecutive terms in the same local government
post and 2) that he has fully served three consecutive terms.It stated:

To recapitulate, the term limit for elective local officials must be taken to refer to the right to be
elected as well as the right to serve in the same elective position.

Consequently, it is not enough that an individual has servedthree consecutive terms in an elective
local office[;] he must also have been electedto the same position for the same number of times
before the disqualification can apply. x x x

x x x The first requisite does not only describe a candidate who has been elected for public office for
three consecutive terms. The candidate must have been elected in the samelocal government post.
This connotes that the candidate must have been inthe same elective position serving the same
constituency who elected him to office for three consecutive terms.

xxxx

The three-term limit rule was designed by the framers of the Constitution to prevent the monopoly of
power centered only on a chosen few. The said disqualification was primarily intended to forestall
the accumulation of massive political power by an elective local government official in a given locality
in order to perpetuate his tenure in office. The framers also considered the necessityof the
enhancement of the freedom of choice of the electorate by broadening the selection of would-be
elective public officers. By rendering ineligible for public office those who have been elected and
served for three consecutive terms in the same public elective post, the prohibition seeks to infuse
new blood in the political arena.

xxxx

x x x [T]he new Third District where [Naval] was elected and has served is composed of the same
municipalities comprising the previous Second District, absent the towns Gainza and [Milaor]. The
territorial jurisdiction [Naval] seeks to serve for the term 2013-2016 is the same as the territorial
jurisdiction he previously served. The electorate who voted for him in 2004, 2007 and 2010 isthe
same electorate who shall vote for him come May 13, 2013 Elections. They are the same group of
voters who elected him into office for three consecutive terms.

The resolution of this Commission in the case of Bandillo, et al[.] v. Hernandez (SPA No. 10-
078)  cannot be applied inthe case at bar. Hernandez who then hailed from Libmanan belonged to
13

the First District of Camarines Sur. With RepublicAct 9716, Libmanan, Minalabac, Pamplona,
Pasacao and San Fernando, all originally belonging to the First District, were merged with Gainza
and Milaor to form the Second District. With the addition of the municipalities of Gainza and Milaor, it
cannot be said that the previous First District became the Second District only by name. The voters
of Gainza and Milaoradded to the electorate of the new Second District formed a different electorate,
different from the one which voted for Hernandez in the 2001, 2004 and 2007 elections. In the case
at bar, the municipalities comprising the new Third District are the same municipalities that consisted
of the previous Second [District], absent Milaor and Gainza.
The Supreme Court, in Latasav. [COMELEC], ruled that the conversion of the municipality into a city
did not convert the office of the municipal mayor into a local government post different from the office
of the city mayor[.]

x x x x  (Citations omitted)
14

The Resolution of the COMELEC En Banc

In the second assailed resolution issued on June 5, 2013, the COMELEC en bancdenied Naval’s
Motion for Reconsideration to the above. The COMELEC pointed out thatabsent the verification
required under Section 3, Rule 19 of the COMELEC Rules of Procedure, Naval’s motion was
instantly dismissible. Nonetheless, the COMELEC proceeded to discuss the demerits of Naval’s
motion, viz:

The conditions for the application of the three-term limit rule are present in the instant case as the
records clearly establish that [Naval] is running for the 4th time for the same government post. To
put things in a proper perspective, it is imperative to review and discuss the salient points in the case
of Latasa v. [COMELEC]. The case involves the question of whether or not a municipal mayor,
having been elected and had already served for three (3) consecutive terms, canrun as city mayor in
light of the conversion of the municipality to a city. In applying the three-term limit rule, the Court
pointed out that the conversion of the municipality into a city did not convert the office of the
municipal mayor into a local government post different from the office of the city mayor. The Court
took into account the following circumstances: (1) That the territorial jurisdiction of [the] city was the
same as that of the municipality; (2) That the inhabitants were the same group of voters who elected
the municipal mayor for three (3) consecutive terms; and (3) That the inhabitants were the same
group of voters [over] whom he held power and authority as their chief executive for nine years.

Anchoring from the said case, it is therefore clear that the position to which [Naval] has filed his
candidacy for the 13 May 2013 x x x Elections is the same position for which he had been elected
and had served for the past nine (9) years.

xxxx

x x x The following circumstances establish that the subject posts are one and the same: First, the
territorial jurisdictions of the two (2) districts are the same except for the municipalities of Gainza and
Milaor which were excluded by R.A. No. 9716; Second, the inhabitants of the 3rd District of
Camarines Sur, where [Naval] is presently running as member of the [Sanggunian], are the same
voters who elected him for the past three (3) consecutive terms; and Lastly, the inhabitants of the
[3rd ] District are the same group of voters whom [Naval] had served as member of the [Sanggunian]
representing the 2nd District.

x x x The enactment of R.A. No. 9716 did not convert [Naval’s] post [into one] different from [w]hat
he [previously had]. As correctly ruled by the Commission (Second Division), [Naval] ha[d] already
been elected and ha[d] already served inthe same government post for three consecutive terms, x x
x[.]

x x x x.  (Citations omitted)
15

Unperturbed, Naval is now before the Court raising the issues of whether or not the COMELEC
gravely erred and ruled contrary to law and jurisprudence:
I. IN FINDING THAT NAVAL HAD ALREADY SERVED FOR THREE CONSECUTIVE TERMS IN
THE SAME GOVERNMENT POST; 16

II. IN IGNORING THE FACT THAT SANGGUNIAN MEMBERS ARE ELECTED BY LEGISLATIVE
DISTRICTS;  and 17

III. WHEN IT RULED THAT THE PROHIBITION CONTEMPLATED BY SECTION 8, ARTICLE X OF

THE 1987 CONSTITUTION AND SECTION 43(B) OF THE LGC APPLIES TO NAVAL. 18

The Arguments of the Contending Parties

In support of the instant petition, Naval alleges that the First, Second and Third Legislative Districts
of Camarines Sur are not merely renamed but are composed of new sets of municipalities. With the
separation of Gainza and Milaor from the other eight towns which used to comprise the Second
District, the voters from the Third Legislative District are no longer the same ones as those who had
elected him to office in the 2004 and 2007 elections.

Naval further invokes Article 94  of Administrative Order No. 270 prescribing the Implementing Rules
19

and Regulations of the LGC to argue that Sanggunianmembers are elected by districts. Thus, the
right to choose representatives in the Sanggunianpertains to each of the districts. Naval was elected
as Sanggunian member in 2004 and 2007 by the Second District. In 2010 and 2013, it was the Third
District, which brought him to office. Essentially then, Naval’s election in 2013 is merely his second
term as Sanggunianmember for the Third District.

Naval likewise cites Borja, Jr. v. COMELEC  to point out that for the disqualification on the ground of
20

the three-term limit to apply, it is not enough that an individual has served three consecutive terms in
an elective local office, but it is also required that he or she had been elected to the same position
for the same number of times. 21

Naval also assails as erroneous the COMELEC’s interpretations of the rulings in Latasa v.
COMELEC  and Bandillo, et al. v. Hernandez.  In Latasa, the Court applied the three-term
22 23

prohibition only because notwithstanding the conversion of the Municipality of Digos into a city, the
mayor was to serve the same territorialjurisdiction and constituents. Naval asserts that the same
does not hold true in his case. Naval further avers that in Bandillo, which finds more application in
the instant petition, the COMELEC ruled that the three-term limit cannot be invoked in a situation
where the legislative districts have been altered. An extraction or an addition both yields a change
inthe composition of the voters.

Naval further emphasizes that he garnered the majority of the votes from his constituents, whose will
and mandate should be upheld. Besides, Julia’s counsel already withdrew his appearance,
indicating no less than his client’s lack of interest in still pursuing Naval’s ouster from office.
24

In its Comment,  the Office of the Solicitor General (OSG) seeks the denial of the instant petition.
25

The OSG contends that Naval had been elected and had fully served the same local elective post for
three consecutive terms. Naval thus violatedSection 78 of the OEC when he filed his COC despite
knowledge of his ineligibility. Naval’s reliance on Bandillo is also misplaced since in the said case,
two towns were instead added to form a new district. Apparently then, in Bandillo, there was a new
set of voters. The OSG also alleges that Naval is not entitled to the issuance of injunctive reliefs by
this Court. No clear and unmistakable right pertains to Naval and it is his eligibility to be elected as
Sanggunianmember for the Third District which is the issue at hand.
Ruling of the Court

The Court denies the petition.

As the issues are interrelated, they shall be discussed jointly.

The case before this Court is one of first impression. While the contending parties cite Latasa,
Lonzanida v. COMELEC,  Borja,Aldovino, Jr. v. COMELEC,  and Bandillo, which all involve the
26 27

application of the three-term limit rule, the factual and legal circumstances in those cases are
different and the doctrinal values therein do not directly address the issues now at hand.

In Latasa, the issue arose as a result of the conversion of a municipality into a city. The then
municipal mayor attempted to evade the application upon him of the three-term limit rule by arguing
that the position of a city mayor was not the same as the one he previously held. The Court was not
convinced and, thus, declared that there was no interruption of the incumbent mayor’s continuity of
service.

In Lonzanida, a candidate ran for the mayoralty post and won in three consecutive elections. While
serving his third term, his opponent filed an election protest. Months before the expiration of the
mayor’s third term, he was ousted from office. He ran again for the same post in the immediately
succeeding election. A petition was thereafter filed assailing his eligibility to run as mayor on the
ground of violation of the three-term limit rule. The Court ruled that the mayor could not
beconsidered as having served a full third term. An interruption for any length of time, if due to an
involuntary cause, is enough to break the elected official’s continuity of service.

In Borja, the mayor of Pateros died and was succeeded in office by the vice mayor. In the two
immediately succeeding elections, the latter vied for and won the mayoralty post. When he ran for
the same position for the third time, his disqualification was sought for alleged violation of the three-
term limit rule. The Court ruled that whenhe assumed the position of mayor by virtue of succession,
his service should not be treated as one full term. For the disqualification to apply, the candidate
should have been thrice elected for and had served the same post consecutively. In Aldovino,
preventive suspension was imposed upon an elected municipal councilor. The Court ruled that the
said suspension did not interrupt the elective official’s term. Although hewas barred from exercising
the functions of the position during the period of suspension, his continued stay and entitlement
tothe office remain unaffected.

In Bandillo, a case decided by the COMELEC, Gainza and Milaor were added to five of the ten
towns, which used to comprise Camarines Sur’s old First District, to form the new Second District.
The COMELEC declined to apply the three-term limit rule against the elected Provincial Board
member on the ground that the addition of Gainza and Milaor distinctively created a new district, with
an altered territory and constituency.

In the case before this Court, the task is to determine the application of the three-term limit rule upon
local elective officials in renamed and/or reapportioned districts. In the process of doing so, it is
inevitable to discuss the role of elections and the nature of public office in a democratic and
republican state like ours.

The Role of Elections in our

Democratic and Republican State,

and the Restraints Imposed Upon

Those Who Hold Public Office

The Court begins with general and undeniable principles.

The Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them. 28

Then Associate Justice Reynato S. Puno explained the character of a republican state and a public
office, viz: A republic is a representative government, a government run by and for the people. It is
not a pure democracy where the people govern themselves directly. The essence of republicanism
is representation and renovation, the selection by the citizenry of a corps of public functionaries who
derive their mandate from the people and act on their behalf, serving for a limited period only, after
which they are replaced or retained, at the option of their principal. Obviously, a republican
government is a responsiblegovernment whose officials hold and discharge their position as a public
trust and shall, according to the Constitution, ‘at all times be accountable to the people’ they are
sworn to serve. The purpose of a republican government it is almost needless to state, is the
promotion of the common welfare according to the will of the people themselves.  (Emphasis ours
29

and italics in the original)

In Tolentino v. COMELEC,  Justice Puno likewise characterized the role of the electoral process in
30

the following wise:

The electoral process is one of the linchpins of a democratic and republican framework because it
isthrough the act of voting that government by consent is secured. Through the ballot, people
express their will on the defining issues of the day and they are able to choose their leaders in
accordance with the fundamental principle of representative democracy that the people should elect
whom they please to govern them. Voting has an important instrumental value in preserving the
viability of constitutional democracy. It has traditionally been taken as a prime indicator of democratic
participation.  (Citations omitted and italics ours)
31

The importance of elections cannottherefore be over emphasized. Thus,

True, election is the expression ofthe sovereign power of the people. In the exercise of suffrage, a
free people expects to achieve the continuity of government and the perpetuation of its benefits.
However, inspite of its importance, the privileges and rights arising from having been elected may be
enlarged or restricted by law. x x x.  (Italics ours)
32

Hence, while it is settled that in elections, the first consideration of every democratic polity is to give
effect to the expressed will of the majority, there are limitations tobeing elected to a public
office.  Our Constitution and statutes are explicit anent the existence of term limits, the nature of
33

public office, and the guarantee from the State that citizens shall have equal access to public
service.  Section 8, Article X of our Constitution, on term limits, is significantly reiterated by Section
34

43(b) of the LGC. Moreover, the Court has time and again declared that a public office is a public
trust and not a vested property right. 35

The Deliberations of the Members

of the Constitutional Commission

on the Three-Term Limit’s

Application to Local Elective

Officials

Following are entries in the Journal of the Constitutional Commission regarding the exchanges of the
members on the subject of the three-term limit rule imposed on local elective officials: VOTING ON
THE TERMS OF LOCAL OFFICIALS

With respect to local officials, Mr. Nolledo, informed that the Committee on Local Governments had
not decided on the term of office for local officials and suggested that the Body decide on the matter.

xxxx

On Mr. Bacani’s inquiry regarding localofficials, Mr. Davide explained that local officials would
includethe governor, vice-governor and the members of the provincial board; the city mayor, city
vice-mayor and members of the city board; and the municipal mayor, municipal vice mayor and
members of the municipal council. He stated that barangay officials would be governed by
speciallaw, to which Mr. Nolledo agreed.

xxxx

MOTION TO VOTE ON THE PROPOSALS RELATIVE TO ALTERNATIVE NO. 3

In reply to Mr. Guingona’s query onwhether the Committee had decided on the interpretation of "two
reelections", Mr. Davide suggested that the matter be submitted to a vote.

Thereupon, Mr. Romulo moved for a vote on whether Alternative No. 3 as proposed by Mr. Garcia,
would allow a local official three terms, after which he would not be allowed to seek any reelection;
or whether, as interpreted by Mr. Davide, it would mean that after two successive reelections or a
consecutive periodof nine years, he could run for reelection after the lapse of three years.

xxxx

RESTATEMENT OF THE PROPOSALS

Mr. Garcia reiterated that the local officials could be reelected twice, after which, they would be
barred from ever runningfor reelection.

On the other proposal, Mr. Davide, on behalf ofthe Committee, stated that local officials after two
reelections would be allowed to run for reelection after the lapse of three years.

xxxx

MANIFESTATION OF MR. ROMULO

Upon resumption of session, Mr. Romulomanifested that the Body would proceed to the
consideration of two issues on the term of Representatives and local officials, namely: 1) Alternative
No. 1 (no further reelection after a total of three terms), and 2) Alternative No. 2 (no immediate
reelection after three successive terms).

SPONSORSHIP REMARKS OF MR. GARCIA ON ALTERNATIVE NO. 1

Mr. Garcia stated that he was advocating Alternative No. 1 on four grounds: 1) to prevent monopoly
of political power because the country’s history showed that prolonged stay in public office could
lead to the creation of entrenched preservesof political dynasties; 2) to broaden the choiceso that
more people could be enlisted to the cause of public service; 3) no one is indispensable in running
the affairs of the countryand that reliance on personalities would be avoided; and 4) the
disqualification from running for reelection after three terms would create a reserve of statesmen
both in the local and national levels.

He added that the turnover in public office after nine years would ensure the introduction of new
ideas and approaches. He stressed that public office would no longer be a preserve of conservatism
and tradition, and that public service would no longer be limited to those directly holding public office,
but would also include consultative bodiesorganized by the people. INQUIRY OF MR. REGALADO

In reply to Mr. Regalado’s query whether the three terms need not be served consecutively, Mr.
Garcia answered in the affirmative.

SPONSORSHIP REMARKS OF MR. MONSOD ON ALTERNATIVE NO. 2

Mr. Monsod stated that while the new Constitution would recognize people power because of a new
awareness, a new kind of voter and a new kind of Filipino, at the same time, it pre-screens the
candidates among whom the people would choose by barring those who would have served for nine
years from being reelected. He opined that this would actually require an additional qualification for
office to a certain number of people.

He stressed that, while the stand of the Commission is to create a reserve of statesmen, their future
participation is actually limited to some areas and only for a certain periodof time. He added thatit is
not for the Commission to decide on the future of our countrymen who may have more years ahead
of them to serve the country.

xxxx

INQUIRY OF MR. OPLE

xxxx

Thereupon, speaking in support of Mr. Monsod’s manifestation, Mr. Ople expressed apprehension
over the Body’s exercise of some sort of omnipotent power in disqualifying those who will have
served their tasks. He opined that the Commission had already taken steps to prevent the
accumulation of powers and prequisites that would permit officials to stay on indefinitely and to
transfer them to members of their families. He opined, however, that perpetual disqualification would
deprive the people of their freedom of choice.He stated that the Body had already succeeded in
striking a balance onpolicies which could ensure a redistribution of opportunities to the people both
in terms of political and economic power. He stated that Philippine politics had been unshackled
from the two-party system, which he said was the most critical support for the perpetuation of
political dynasties. Considering that such achievement is already a victory, Mr. Ople stated that the
role of political parties should not be despised because the strength of democracy depends on how
strong political parties are, that a splintering thereof will mean a great loss to the vitality and
resiliency of democracy.

Mr. Ople reiterated that he was against perpetual disqualification from office.

x x x x.

MR. GARCIA’S RESPONSE TOMR. OPLE’S STATEMENTS

Mr. Garcia stated that there are two principles involved in Alternative No. 1: 1) the recognition of the
ambivalent nature of political power, and 2) the recognition of alternative forms of public service. He
stated that it is important to remember the lessons learned from the recent past; that public service is
service to the people and not an opportunity to accumulate political power, and that a prolonged stay
in public office brings about political dynasties or vested interests. Regarding political parties, he
stated that it will encourage the constant renewal of blood in party leadership, approach, style and
ideas. He opined that this is very healthy for a pluralist and multi-party democracy.

On the recognition of alternative forms of public service, Mr. Garcia stressed that public service
could be limited to public office since many good leaders who were in the streets and in jail fought
against the dictatorship. He stressed that public service would also mean belonging to consultative
bodies or people’s councils which brought about new forms of service and leadership.

REMARKS OF MR. ABUBAKAR

Mr. Abubakar stated that in any democracy the voice of the people is the voice of God.He stated that
if the people want to elect a representative to serve them continuously, the Commission should not
arrogate unto itself the right to decide what the people want. He stated that in the United States, a
Senator had served for 30 years.

xxxx

REMARKS OF MS. AQUINO

Ms. Aquino stated that she differs from the views advanced by Mr. Garcia and Ms. Tan, although
she stated that they spoke of the same premises. She stated that she agrees with them that leaders
need not be projected and developed publicly in an election as leaders are better tempered and
tested in the various forms of mass struggles and organized work. She stated that if the people are
to be encouraged to have their own sense of responsibility in national leadership, what ultimately
matters is the political determination of the citizenry to chart their own national destiny. She opined
that the Body should allow the people to exercise their own sense of proportion and imbibe the
salutary effects of their own strength to curtail power when it overreaches itself. She stressed that in
the final analysis,the Commission cannot legislate into the Constitution the essence of new politics
as it is a chastening experience of learning and unlearning. Adverting to Mr. Garcia’s statement that
politics is an imperfect art, she stated that the Commission could correct politics with all its
imperfections and flaws by a constitutional provision. She opined that perpetual disqualification
cannot provide the cure. She maintained that perpetual disqualification is, at best, a palliative which
could also be counter-productive, in the sense that it could effectively foil the possibilities of
realpublic service.

REMARKS OF MR. BACANI

Mr. Bacani stated that when the Body granted the illiterates the right to vote and that proposals were
made to empower the people to engage in the legislative process,the Body presupposed the political
maturity of the people. He observed that in this instance, political maturity is denied with the
constitutional bar for reelection.He opined that the Body should stick to the premise that the people
are politically mature.

REJOINDER OF MR. GARCIA

By way of rejoinder to Mr. Bacani’s statements,Mr. Garcia stated that the proposal was basically
premisedon the undue advantage of the incumbent in accumulating power, money, party machine
and patronage and not on lack of trust in the people.

Mr. Garcia stated that politics isnot won by ideals alone but by solid organized work by
organizations. He stated that with three terms, an official would have served the people long enough.

xxxx

VOTING ON THE TWO ALTERNATIVES

Thereafter, the Body proceeded to vote by ballot on the two alternatives.

xxxx

RESULT OF THE VOTING

The result of the voting was as follows:

Alternative No. 1 (no further election after three successive terms) — 17 votes

Alternative No. 2 (no immediate reelection after three successive terms) — 26 votes

With 17 votes in favor of Alternative No. 1 and 26 in favor of Alternative No. 2, the Chair declared
Alternative No. 2 approved by the Body.  (Emphasis and italics ours)
36

The Constitution mandates the

strict implementation of the

three-term limit rule.

The Court notes that in the process of drafting the Constitution, the framers thereof had not
discussed with specifity the subject of the three-term limit rule’s application on reapportioned
districts.

From the above-cited deliberations, however, the divergent stances of the members of the
Constitutional Commission on the general application of the three-term limit rule show. On one side
were those who espoused the stern view that perpetual disqualification to hold public office after
three consecutive terms would ensure that new blood would be infused into our political system.
More choices for the voters would give fuller meaning to our democratic institutions. On the other
side of the fence were those who believed that the imposition of termlimits would be tantamount to
squandering the experience of seasoned public servants and a curtailment of the power of the
citizens to elect whoever they want to remain in office.

In the end, 26 members of the Commission cast their votes in favor of the proposal that no
immediate re-election after three successive terms shall be allowed. On the other hand, 17 members
stood pat on their view that there should be no further reelection after three successive terms.

Clearly, the drafters of our Constitution are in agreement about the possible attendant evils if there
would be no limit to re-election. Notwithstanding their conflicting preferences on whether the term
limit would disqualify the elected official perpetually or temporarily, they decided that only three
consecutive elections tothe same position would be allowed. Thereafter, the public official can once
again vie for the same post provided there be a gap of at least one term from his or her last election.
The rule answers the need to prevent the consolidation of political power in the hands of the few,
while at the same time giving to the people the freedom to call back to public service those who are
worthy to be called statesmen.

The compromise agreed upon by the drafters of our Constitution was a result of exhaustive
deliberations. The required gap after three consecutive elections is significant. Thus, the rulecannot
be taken with a grain of salt. Nothing less than its strict application is called for.

Ratio legis est anima. 37

"A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration.Thus, it has been held that the Court in construing a Constitution should bear in mind
the object sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or
remedied. A doubtful provision will be examined in the light of the history of the times, and the
condition and circumstances under which the Constitution was framed. The object is to ascertain the
reason which induced the framers of the Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to construe the whole as to make the words
consonant to that reason and calculated to effect that purpose."  In Aldovino, the Court describes
38

the three-term limit rule as inflexible.

In Aldovino, a local elective official pleaded exemption from the application of the three-term limit on
the ground that there was an interruption in his service after the penalty of suspension was imposed
upon him. Although not in all four withNaval’s case, there are principles enunciated therein which
undeniably hold true, viz:

As worded, the constitutional provision fixes the term of a local elective office and limits an elective
official’s stay in office to no more than three consecutive terms. This is the first branch of the rule
embodied in Section 8, Article X.

Significantly, this provision refers to a "term" as a period of time – three years– during which an
official has title to office and can serve. x x x[.]

xxxx

The "limitation" under this first branch of the provision is expressed in the negative—"no such official
shall serve for more than three consecutive terms." This formulation—no more than three
consecutive terms—is a clear command suggesting the existence of an inflexible rule. x x x.

xxxx
This examination of the wording of the constitutional provision and of the circumstances surrounding
its formulation impresses upon us the clear intent to make term limitation a high priority constitutional
objective whose terms must be strictly construed and which cannot be defeated by, nor sacrificed
for, values of less than equal constitutional worth. x x x.

xxxx

x x x [T]he Court signalled how zealously it guards the three-term limit rule. Effectively, these cases
teach usto strictly interpret the term limitation rule in favor of limitation rather than its exception.

xxxx

[In] Latasa v. Commission on Electionsx x x[,] [t]he Court said:

This Court reiterates that the framers of the Constitution specifically included an exception to the
people’s freedom to choose those who will govern them in order to avoid the evil of a single person
accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay
in the same office. x x x.

xxxx

To put it differently although at the risk of repetition, Section 8, Article X—both by structure and
substance—fixes an elective official’s term of office and limits his stay in office to three consecutive
terms as an inflexible rule that is stressed, no less, by citing voluntary renunciation as an example of
a circumvention. x x x.  (Citations omitted, italics and emphasis in the original and underscoring
39

ours)

Reapportionment and its Basis

Reapportionment is "the realignment orchange in legislative districts brought about by changes in

population and mandated by the constitutional requirement of equality of representation."  The aim
40

of legislative apportionment is to equalize population and voting power among districts.  The basis
41

for districting shall be the number of the inhabitants of a city or a province and not the number of
registered voters therein. 42

R.A. No. 9716 and the Reappor-

tioned Districts of Camarines Sur

Sections 1 to 3 of R.A. No. 9716 provide:

Section 1. The composition of the current First (1st) and Second (2nd) Legislative Districts in the
Province of Camarines Sur is hereby reapportioned in order to create an additional legislative
districtto commence in the next national elections after the effectivity of this Act.

Section 2. In furtherance of the reapportionment mandated by this Act, the municipalities of

Libmanan, Minalabac, Pamplona, Pasacao and San Fernando of the current First (1st) Legislative
District are hereby consolidated with the municipalities of Gainza and Milaor of the current Second
(2nd) Legislative District, to comprise the new legislative district authorized under this Act.

Section 3. The result of the reapportionment described in this Act are summarized as follows:
a) First District – The remaining municipalities in the current First (1st) Legislative District shall
continue to be designated as the First (1st) Legislative District, composed of the following
municipalities: Del Gallego, Ragay, Lupi, Sipicot and Cabusao;

b) Second District – This new legislative districtshall be composed of the municipalities enumerated
in Section 2 hereof;

c) Third District – The current Second (2nd) Legislative District shall be renamedas the Third (3rd)
Legislative District, composed of the following: Naga City and the municipalities of Pili, Ocampo,
Camaligan, Canaman, Magarao, Bombon and Calabanga;

d) Fourth District – The current Third (3rd) Legislative District, without any change in its composition,
shall be renamedas the Fourth (4th) Legislative District, composed of the following municipalities:
Caramoan, Garchitorena, Goa, Lagonoy, Presentacion, Sangay, San Jose, Tigaon, Tinambac and
Siruma; and

e) Fifth District – The current Fourth (4th) Legislative District, without any change inits composition,
shall be renamedas the Fifth (5th) Legislative District, composed of the following: Iriga City and the
municipalities of Baao, Balatan, Bato, Buhi, Bula and Nabua. (Italics and emphasis ours)

As a result of the reapportionment made by R.A. No. 9716, the old Second District of Camarines
Sur, minus only the two towns of Gainza and Milaor, is renamed as the Third District and now
configured as follows: 43

[[reference - http://sc.judiciary.gov.ph/pdf/web/viewer.html?
file=/jurisprudence/2014/july2014/207851.pdf]]

Before the Enactment of After the Enactment of

RA 9716 RA 9716

2 3rd District

nd Population: 439,043

District Naga

Population: 474,899 Pili

Gainza Ocampo

Milaor Canaman

Naga Camaligan

Pili Magarao

Ocampo Bombon

Calabanga
 Canaman

Camaligan

Magarao

Bombon

Calabanga

R.A. No. 9716 created a new Second

District, but it merely renamed the

other four.

The Court notes that after the reapportionment of the districts in Camarines Sur, the current Third
District, which brought Naval to office in 2010 and 2013, has a population of 35,856 less than that of
the old Second District, which elected him in 2004 and 2007. However, the wordings of R.A. No.
9716 indicate the intent of the lawmakers to create a single new Second District from the merger of
the towns from the old First District with Gainza and Milaor. As to the current Third District, Section
3(c) of R.A. No. 9716 used the word "rename." Although the qualifier "without a change in its
composition" was not found in Section 3(c), unlike in Sections 3(d) and (e), still, what is pervasive
isthe clear intent to create a sole new district in that of the Second, while merely renaming the rest.

The following statutory construction rules surface:

First, the general rule in construing words and phrases used in a statute is that, in the absence of
legislative intent to the contrary, they should be given their plain, ordinary and common usage
meaning; the words should be read and considered intheir natural, ordinary, commonly accepted
usage, and without resorting to forced or subtle construction. Words are presumed to have been
employed by the lawmaker in their ordinary and common use and acceptation. Second, a word of
general significance ina statute is to be taken in its ordinary and comprehensive sense, unless it is
shown that the word is intended to be given a different or restricted meaning; what is generally
spoken shall be generally understood and general words shall be understood in a general
sense.  (Citations omitted)
44

The Court looks to the language of the document itself in our search for its meaning. 45

In Naval’s case, the words of R.A.No. 9716 plainly state that the new Second Districtis to be created,
but the Third Districtis to be renamed. Verba legis non est recedendum. The terms used in a legal
provision to be construed compels acceptanceand negates the power of the courts to alter it, based
on the postulate that the framers mean what they say. 46

The verb createmeans to "make or produce something new."  On the other hand, the verb
47

renamemeans to "give a new name to someone or something."  A complete reading of R.A. No.
48

9716 yields no logical conclusion other than that the lawmakers intended the old Second District to
be merely renamed as the current Third District.
It likewise bears noting that the actual difference in the population of the old Second District from
that of the current Third District amounts to less than 10% of the population of the latter. This
numericalfact renders the new Third District as essentially, although not literally, the same as the old
Second District. Hence, while Naval is correct in his argument that Sanggunianmembers are elected
by district, it does not alter the fact that the district which elected him for the third and fourth time is
the same one which brought him to office in 2004 and 2007.

The application upon Naval of the

three-term limit rule does not

undermine the constitutional

requirement to achieve equality of

representation among districts.

The rationale behind reapportionment is the constitutional requirement to achieve equality

ofrepresentation among the districts.  It is with this mindset that the Court should consider Naval’s
49

argument anent having a new set of constituents electing him into office in 2010 and 2013.

Naval’s ineligibility to run, by reason of violation of the three-term limit rule, does not undermine the
right toequal representation of any of the districts in Camarines Sur. With or without him, the
renamed Third District, which he labels as a new set of constituents, would still be represented,
albeit by another eligible person.

The presumed competence of the

COMELEC to resolve matters

falling within its jurisdiction is

upheld.

"Time and again, the Court has held that a petition for certiorariagainst actions of the COMELEC is
confined only to instances of grave abuse of discretion amounting to patent and substantial denial of
due process, because the COMELEC is presumed to be most competent in matters falling within its
domain." 50

"In a special civil action for certiorari, the burden rests on the petitioner to prove not merelyreversible
error, but grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
public respondent issuing the impugned order, decision or resolution."  "Grave abuse of discretion
51

arises when a court or tribunal violates the Constitution, the law or existing jurisprudence." 52

In the case at bar, the Court finds the COMELEC’s disquisitions to be amply supported by the
Constitution,law and jurisprudence.

Conclusion

In sum, the Court finds no compelling reason to grant the reliefs prayed for by Naval. For the Court
to declare otherwise would be to create a dangerous precedent unintended by the drafters of our
Constitution and of R.A. No. 9716. Considering that the one-term gap or rest after three consecutive
elections is a result of a compromise among the members of the Constitutional Commission, no
cavalier exemptions or exceptions to its application is to be allowed. Aldovinoaffirms this
interpretation. Further, sustaining Naval’s arguments would practically allow him to hold the same
office for 15 years. These are the circumstances the Constitution explicitly intends to avert.

Certainly, the Court accords primacy to upholding the will of the voting public, the real sovereign,
soto speak. However, let all the candidates for public office be reminded that as citizens, we have a
commitment to be bound by our Constitution and laws. Side by side our privileges as citizens are
restrictions too.

Einer Elhauge, a faculty member from Harvard Law School, wrote an article entitled "What Term
Limits Do That Ordinary Voting Cannot."  In the article, Greek mythology was tapped to make a
53

tempting analogy. The gist of the story follows.

In Odyssey Book XII, the goddess Circe warned Odysseus of the Sirens who seduce all men
approaching them with their voices. Those who fell into the Sirens’ trap never returnedhome to their
wives and children. A clever strategy was thus hatched to secure safe passage for Odysseus and
his men. The men were to plug their ears with wax to muffle the songs of the Sirens. Odysseus, on
the other hand, was to be tied to the mast of the ship so he could still listen to the songs, which may
contain clues on how they can get home. When the wind died down,Odysseus heard beautiful
voices calling out to them. The voices were incomparable to anything he had ever heard before.
Even whenOdysseus knew that the irresistible voices were coming from the Sirens, he struggled
with all his strength to free himself from the ropes, but was unable to do so. The voices became
fainter as the men continued to row. When the voices can no longer be heard, Odysseus realized
how he had nearly been beguiled. They had made it through safely and Odysseus was untied. It was
their clever plan which kept them all alive. 54

The same lesson holds true in the case before this Court. The drafters of the Constitution recognized
the propensity of public officers to perpetuate themselves in power, hence, the adoption of term
limits and a guarantee of every citizen's equal access to public service. These are the restrictions
statesmen should observe for they are intended to help ensure the continued vitality of our
republican institutions.

WHEREFORE, IN VIEW OF THE FOREGOING, the petition is DENIED. The Resolutions dated
March 5, 2013 and June 5, 2013 of the Commission on Elections in SPA No. 13-166 (DC) are
AFFIRMED.

SO ORDERED.

EN BANC
[ G.R. No. 122250 & 122258, July 21, 1997 ]
 EDGARDO C. NOLASCO, PETITIONER, VS. COMMISSION ON
ELECTIONS, MUNICIPAL BOARD OF CANVASSERS, MEYCAUAYAN,
BULACAN, AND EDUARDO A. ALARILLA, RESPONDENTS.
FLORENTINO P. BLANCO, PETITIONER, VS. COMMISSION ON
ELECTIONS AND EDUARDO A. ALARILLA,RESPONDENTS.

DECISION

PUNO, J.:

First, we rewind the facts. The election for mayor of Meycauayan, Bulacan was
held on May 8, 1995. The principal protagonists were petitioner Florentino P. Blanco
and private respondent Eduardo A. Alarilla. Blanco received 29,753 votes, while Alarilla
got 23,038 votes.[1] Edgardo Nolasco was elected Vice-Mayor with 37,240 votes.

On May 9, 1995, Alarilla filed with the COMELEC a petition to disqualify Blanco. He
alleged:

“x x x   x x x     x x x

“4. Based on intelligence reports that respondent was maintaining his own `private
army' at his aforesaid resident, P/Insp. Ronaldo O. Lee of the Philippine National Police
assigned with the Intelligence Command at Camp Crame, applied for and was granted
search warrant no. 95-147 by Branch 37 of the Regional Trial Court of Manila on 5 May
1995. A copy of the said search warrant is attached as Annex "A" hereof.

5. In compliance with said search warrant no. 95-147, an elite composite team of the
PNP Intelligence Command, Criminal Investigation Service (CIS), and Bulacan Provincial
Command, backed up by the Philippine National Police Special Action Force,
accompanied by mediamen who witnessed and recorded the search by video and still
cameras, raided the house of respondent Florentino Blanco at his stated address at
Bancal, Meycauayan, Bulacan.

6. Enclosed as Annex "A-1" is a video tape taken of the proceedings during the raid.

7. The composite team was able to enter the said premises of respondent Florentino
Blanco where they conducted a search of the subject firearms and ammunition.

8. The search resulted in the arrest of six (6) men who were found carrying various high
powered firearms without any license or authority to use or possess such long arms.
These persons composing respondent's `private army,' and the unlicensed firearms are
as follows:
A. Virgilio Luna y Valderama -

1. PYTHOM (sic) Cal. 347 SN 26946 with six (6) Rounds of Ammo.

2. INGRAM M10 Cal. 45 MP with Suppressor SN: 45457 with two (2) Mags and 54
Rounds of Ammo.

B. Raymundo Bahala y Pon -

1. HKMP5 Sn. C334644 with two (2) Mags and 47 Rounds of Ammo.

C.Roberto Santos y Sacris -

1. Smith and Wesson 357 Magnum Sn: 522218 with six (6) Rounds of Ammo.

D. Melchor Cabanero y Oreil -

1. Armscor 12 Gauge with three (3) Rounds of Ammo.

E. Edgardo Orteza y Asuncion -

1. Paltik Cal. 38 Rev with six (6) Rounds of Ammo.

F. Francisco Libari y Calimag -

1. Paltik Cal. 38 SN: 36869

Copies of the inventory receipts are hereto attached as Annexes "B" to "B-5" hereof.
 9. During the search, members of the composite team saw through a large clear
glass window, respondent's Galil assault rifle on a sofa inside a closed room of the
subject premises.

10. Not allowed entry thereto by respondent and his wife, the members of the
composite police-military team applied for the issuance of a second search warrant
(Annex "B-6") so that they could enter the said room to seize the said firearm.

11. While waiting for the issuance of the second search warrant, respondent's wife and
respondent's brother, Mariano Blanco, claiming to be the campaign manager of
respondent in the Nationalist People's Coalition Party, asked permission to enter the
locked room so they could withdraw money in a vault inside the locked room to pay
their watchers, and the teachers of Meycauayan in the 8 May 1995 elections.

12. For reasons not known to petitioner, Mrs. Florentino Blanco and Mariano Blanco,
were allowed to withdraw ten (10) large plastic bags from the vault.

13. When the said PNP composite team examined the ten (10) black plastic bags, they
found out that each bag contained ten (10) shoe boxes. Each shoe box when examined
contained 200 pay envelopes, and each pay envelope when opened contained the
amount of P1,000.00. When questioned, respondent's brother Mariano Blanco and
respondent's wife, admitted to the raiding team that the total amount of money in the
ten (10) plastic bags is P10,000,000.00.

14. The labels found in the envelope shows that the money were intended as
respondent's bribe money to the teachers of Meycauayan. Attached as Annex "C" is the
cover of one of the shoe boxes containing the inscription that it is intended to the
teachers of Brgy. Lawa, Meycauayan, Bulacan.

15. On election day 8 May 1995, respondent perpetrated the most massive vote-buying
activity ever in the history of Meycauayan politics. Attached as Annex "D" is the
envelope where this P10,000,000.00 was placed in 100 peso denominations totalling
one thousand pesos per envelope with the inscription `VOTE!!! TINOY.'

This massive vote-buying activity was engineered by the respondent through his
organization called `MTB' or `MOVEMENT FOR TINOY BLANCO VOLUNTEERS.' The
chairman of this movement is respondent's brother, Mariano P. Blanco, who admitted
to the police during the raid that these money were for the teachers and watchers of
Meycauayan, Bulacan.

Attached as Annex "E" hereof is an MTB ID issued to one Armando Bulan of Precinct 77-
A, Brgy. Jasmin, Bancal, Meycauayan, Bulacan. You will note that the ID is perforated in
the middle. The purpose is for the voter to tear the office copy and return it to
respondent's headquarters to receive the balance of the P500.00 of the bribe money
after voting for respondent during the elections. The voter will initially be given a down-
payment of P500.00.

16. This massive vote-buying was also perpetrated by respondent thru the familiar use
of flying voters. Attached as Annex "F" hereof is a copy of the Police Blotter dated 8 May
1995 showing that six (6) flying voters were caught in different precincts of
Meycauayan, Bulacan, who admitted after being caught and arrested that they were
paid P200.00 to P300.00 by respondent and his followers, to vote for other voters in the
voter's list.

17. Not satisfied, and with his overflowing supply of money, respondent used another
scheme as follows. Respondent's paid voter will identify his target from the list of voter
and will impersonate said voter in the list and falsify his signature.

Attached as Annex "G" hereof is the Minutes of Voting and Counting of Votes in Precinct
No. 26, Brgy. Calvario, Meycauayan, Bulacan. Annex "G-1" is the statement of one Ma.
Luisa de los Reyes Cruz stating that when she went to her precinct to vote, her name
was already voted upon by another person. This entry was noted by Leticia T. Villanco,
Poll Chairman; Estelita Artajo, - Poll Clerk; and Nelson John Nito - Poll Member.

18. Earlier before the election, respondent used his tremendous money to get in the
good graces of the local Comelec Registrar, who was replaced by this Office upon the
petition of the people of Meycauayan. Attached as Annex "H" hereof is an article in the
3 May 1995 issue of Abante entitled `1 M Suhol sa Comelec Registrar.'

19. The second search warrant on respondent's residence yielded to more firearms and
thousands of rounds of ammunition. These guns were used by respondent to terrorize
the population and make the people afraid to complain against respondent's massive
vote buying and cheating in today's elections. Respondent's bribery of the teachers
ensured the implementation of his vote-buying ballot box switching, impersonations,
and other cheating schemes.

Attached as Annexes `I-1' to I-2' are the pertinent Receipts of the guns and ammunitions
seized from respondent. Attached as Annex "J" is a Certification to the same effect.

20. The above acts committed by respondent are clear grounds for disqualification
under Sec. 68 of the Omnibus Election Code for giving money to influence, induce or
corrupt the voters or public officials performing election functions; for committing acts
of terrorism to enhance his candidacy; and for spending in his election campaign an
amount in excess of that allowed by the Election Code. There are only 97,000 registered
voters in Meycauayan versus respondent's expenses of at least P10,000,000.00 as
admitted above. (Emphasis supplied).
On May 15, 1995, Alarilla filed a Very Urgent Ex Parte Motion to Suspend
Proclamation. The COMELEC (First Division) granted the motion after finding that there
was a "probable commission of election offenses which are grounds for disqualification
pursuant to the provisions of section 68 of the Omnibus Election Code (BP 881), and the
evidence in support of disqualification is strong." It directed the Municipal Board of
Canvassers "to complete the canvassing of election returns of the municipality of
Meycauayan, but to suspend proclamation of respondent Florentino P. Blanco should he
obtain the winning number of votes for the position of Mayor of Meycauayan, Bulacan
until such time when the petitions for disqualification against him shall have been
resolved."

On May 25, 1995, Blanco filed a Motion to Lift or Set Aside the Order suspending his
proclamation. On May 29, 1995, he filed his Answer to the petition to disqualify him.

On May 30, 1995, the COMELEC (First Division) heard the petition to disqualify Blanco.
The parties thereafter submitted their position papers. [2] Blanco even replied to the
position paper of Alarilla on June 9, 1995.
On August 15, 1995, the COMELEC (First Division) disqualified Blanco on the ground of
vote-buying, viz.:[3]
“x x x   x x x     x x x

"WHEREFORE, premises considered, the Commission (First Division) RESOLVES to

DISQUALIFY Respondent Florentino P. Blanco as a candidate for the Office of Mayor of
Meycauayan, Bulacan in the May 8, 1995 elections for having violated Section 261 (a) of
the Omnibus Election Code. The Order suspending the proclamation of herein
Respondent is now made PERMANENT. The Municipal Board of Canvassers of
Meycauayan, Bulacan shall immediately reconvene and, on the basis of the completed
canvass of the election returns, determine the winner out of the remaining qualified
candidates who shall be immediately proclaimed.

SO ORDERED."
Blanco moved for reconsideration on August 19, 1995 in the COMELEC en banc.
Nolasco, as vice mayor, intervened in the proceedings.[4] He moved for reconsideration
of that part of the resolution directing the Municipal Board of Canvassers to
"immediately reconvene and, on the basis of the completed canvass of the election
returns, determine the winner out of the remaining qualified candidates who shall be
immediately proclaimed." He urged that as vice-mayor he should be declared mayor in
the event Blanco was finally disqualified. The motions were heard on September 7,
1995. The parties were allowed to file their memoranda with right of reply. On October
23, 1995, the COMELEC en banc denied the motions for reconsideration.

In this petition for certiorari, [5] Blanco contends:

“x x x   x x x     x x x
18. Respondent COMELEC En Banc committed grave abuse of discretion
amounting to lack or excess of jurisdiction and acted arbitrarily in affirming en toto and
adopting as its own the majority decision of the First Division in that:

18.1 It upheld the validity of the May 17, 1995 order suspending proclamation of
Petitioner Blanco herein as the winning candidate for Mayor of Meycauayan without the
benefit of any notice or hearing in gross and palpable violation of Blanco's constitutional
right to due process of law.
18.2 It violated the provisions of COMELEC Res. No. 2050 as amended, prescribing the
procedure for disposing of disqualification cases arising out of the prohibited acts
mentioned in Sec. 68 of the Omnibus Election Code, which Resolution this Honorable
Tribunal explicitly sanctioned in the case of Lozano vs. Yorac. Moreover, it (COMELEC)
violated Blanco's right to equal protection of the laws by setting him apart from other
respondents facing similar disqualification suits whose case were referred by COMELEC
to the Law Department pursuant to Com. Res. No. 2050 and ordering their proclamation
-- an act which evidently discriminated against Petitioner Blanco herein.

18.3 It decided Petitioner Blanco's disqualification case in a SUMMARY PROCEEDING in

violation of law and the precedents which consistently hold that questions of VOTE-
BUYING, terrorism and similar such acts should be resolve in a formal election protest
where the issue of vote buying is subjected to a full-dress hearing instead of disposing of
the issue in a summary proceeding;

18.4 It declared Petitioner Blanco as having been involved in a conspiracy to engage in

VOTE-BUYING without that minimum quantum of proof required to establish a
disputable presumption of vote-buying in gross and palpable violation of the provisions
of Section 28, Rep. Act. 6646;

18.5 It ordered the proclamation of a SECOND PLACER as the duly elected Mayor of
Meycauayan, Bulacan, in gross violation and utter disregard of the doctrine laid down by
this Honorable Supreme Court in the case of LABO vs. COMELEC which was reiterated
only recently in the case of Aquino vs. Syjuco.

On the other hand, Nolasco contends in his petition for certiorari [6] that he should be
declared as Mayor in view of the disqualification of Blanco. He cites section 44 of R.A.
No. 7160 otherwise known as the Local Government Code of 1991 and our decision in
Labo vs. COMELEC.[7]

We shall first resolve the Blanco petition.

Blanco was not denied due process when the COMELEC (First Division) suspended his
proclamation as mayor pending determination of the petition for disqualification against
him. Section 6 of R.A. No. 6646 and sections 4 and 5 of the Rule 25 of the Comelec Rules
of Procedure merely require that evidence of guilt should be strong to justify the
COMELEC in suspending a winning candidate's proclamation. It ought to be emphasized
that the suspension order is provisional in nature and can be lifted when the evidence
so warrants. It is akin to a temporary restraining order which a court can issue ex-parte
under exigent circumstances.

In any event, Blanco was given all the opportunity to prove that the evidence on his
disqualification was not strong. On May 25, 1995, he filed a Motion to Lift or Set Aside
the Order suspending his proclamation. On May 29, 1995, he filed his Answer to the
petition to disqualify him. The COMELEC heard the petition. Blanco thereafter submitted
his position paper and reply to Alarilla's position paper. The COMELEC considered the
evidence of the parties and their arguments and thereafter affirmed his disqualification.
The hoary rule is that due process does not mean prior hearing but only an opportunity
to be heard. The COMELEC gave Blanco all the opportunity to be heard. Petitions for
disqualification are subject to summary hearings. [8]

Blanco also faults the COMELEC for departing from the procedure laid down in
COMELEC Resolution 2050 as amended, in disqualification cases. The resolution
pertinently provides:

“x x x   x x x     x x x

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 the said court may order the suspension of the proclamation if the
evidence of guilt is strong."

It is alleged that the violation is fatal as it deprived Blanco of equal protection of our
laws.
We do not agree. It cannot be denied that the COMELEC has jurisdiction over
proclamation and disqualification cases. Article IX-C, section 2 of the Constitution
endows the COMELEC the all encompassing power to "enforce and administer all laws
and regulations relative to the conduct of an election x x x." We have long ruled that this
broad power includes the power to cancel proclamations. [9] Our laws are no less explicit
on the matter. Section 68 of B.P. Blg. 881 (Omnibus Election Code) provides:

    "Sec. 68. Disqualifications. - Any candidate who, in an action or protest in

which he is a party is declared by final decision of a competent court guilty of, or found
by the Commission of having (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received or
made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated
any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6,
shall be disqualified from continuing as a candidate, or if he has been elected, from
holding the office. Any person who is a permanent resident of or an immigrant to a
foreign country shall not be qualified to run for an elective office under this Code, unless
said person has waived his status as permanent resident or immigrant of a foreign
country in accordance with the residence requirement provided for in the elections
laws."
Section 6 of R.A. No. 6646 likewise provides:
"Sec. 6.  Effect of Disqualification Case  - Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him shall
not be counted. If for any reason a candidate is not declared by final judgment before
an election to be disqualified and he is voted for and receives the winning number of
votes in such election, the Court or Commission shall continue with the trial and hearing
of the action, inquiry or protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong."
Despite these laws and existing jurisprudence, Blanco contends that COMELEC
must follow the procedure in Resolution No. 2050 as amended. We hold that COMELEC
cannot always be straitjacketed by this procedural rule. The COMELEC has explained
that the resolution was passed to take care of the proliferation of disqualification cases
at that time. It deemed it wise to delegate its authority to its Law Department as partial
solution to the problem. The May 8, 1995 elections, however, did not result in a surfeit
of disqualification cases which the COMELEC cannot handle. Hence, its decision to
resolve the disqualification case of Blanco directly and without referring it to its Law
Department is within its authority, a sound exercise of its discretion. The action of the
COMELEC is in accord with Section 28 of R.A. No. 6646, viz:
"x x x.

"SEC. 28. Prosecution of Vote-Buying and Vote-selling. - The presentation of a complaint

for violations of paragraph (a) or (b) of Section 261 of Batas Pambansa Blg. 881
supported by affidavits of complaining witness attesting to the offer or promise by or of
the voter's acceptance of money or other consideration from the relatives, leaders or
sympathizers of a candidate, shall be sufficient basis for an investigation to be
immediately conducted by the Commission, directly or through its duly authorized legal
officers under Section 68 or Section 265 of said Batas Pambansa Blg. 881. (emphasis
supplied)

"x x x."
Indeed, even Commissioner Maambong who dissented from the majority ruling,
clings to the view that "Resolution No. 2050 cannot divest the Commission of its duty to
resolve disqualification cases under the clear provision of section 6 of R.A. No.
6646."[10] Clearly too, Blanco's contention that he was denied equal protection of the law
is off-line. He was not the object of any invidious discrimination. COMELEC assumed
direct jurisdiction over his disqualification case not to favor anybody but to discharge its
constitutional duty of disposing the case in a fair and as fast a manner as possible.

Blanco also urges that COMELEC erred in using summary proceedings to resolve his
disqualification case. Again, the COMELEC action is safely anchored on section 4 of its
Rules of Procedure which expressly provides that petitions for disqualification "shall be
heard summarily after due notice." Vote-buying has its criminal and electoral aspects. Its
criminal aspect to determine the guilt or innocence of the accused cannot be the subject
of summary hearing. However, its electoral aspect to ascertain whether the offender
should be disqualified from office can be determined in an administrative proceeding
that is summary in character.
The next issue is whether there is substantial evidence to prove the vote buying
activities of Blanco. The factual findings of the COMELEC (First Division) are as follows: [11]

"x x x

"Respondent argues that the claim of vote-buying has no factual basis because the
affidavits and sworn statements admitted as evidence against him are products of
hearsay; inadmissible because of the illegal searches; they violate the Rule of Res Inter
Alios Acta and the offense of vote-buying requires consummation.

We are not impressed.

A studied reading of the affidavits [Respondent's affidavit is unsigned] attached to the

Reply of the Respondent to the Position Paper of the Petitioner [Annexes 1, 2 and 3]
would reveal that they are in the nature of general denials emanating from individuals
closely associated or related to respondent Blanco.

The same holds true with the affidavits attached to Respondent's Position Paper
[Annexes 1, 2, 3 and 4]. Said affidavits were executed by Blanco's political leaders and
private secretary.

On the other hand, the affidavit of Romeo Burgos [Exhibit "E-1"] is rich in detail as to
how the alleged vote-buying was conducted.

Moreover, the same is corroborated by object evidence in the nature of MTB

[Movement for Tinoy Blanco] cards which were in the possession of the affiants and
allegedly used as a means to facilitate the vote-buying scheme.

There are also admissions of certain individuals who received money to vote for
Respondent [Annexes "E-2", "E-3", "E-4", "E-5", "E-6", "E-7", "E-8", "E-9" and "E-10"].

On the day of the elections, two individuals were apprehended for attempting to vote
for Respondent when they allegedly are not registered voters of Meycauayan. A criminal
complaint for violation of section 261 [2] of BP 881 was filed by P/Sr. Inspector Alfred S.
Corpus on May 9, 1995 with the Municipal Trial Court of Bulacan. The same was
docketed as Criminal Case 95-16996 [Exhibit F-2].
Again, similar pay envelopes with money inside them were found in the possession of
the suspected flying voters.

The incident was corroborated by Adriano Llorente in his affidavit narrating the same
[Exhibit "F-1"]. Llorente, a poll watcher of Petitioner, was the one who accosted the two
suspected flying voters when the latter attempted to vote despite failing to locate their
names in the voter's list.

From this rich backdrop of detail, We are disappointed by the general denial offered by
Respondent. In People of the Philippines vs. Navarro, G.R. No. 96251, May 11, 1993, 222
SCRA 684, the Supreme Court noted that "Denial is the weakest defense' [page 692].

In People of the Philippines vs. Rolando Precioso, et al., G.R. No. 95890, May 12, 1993,
221 SCRA 1993, the Supreme Court observed that,
`We have consistently ruled that denials if unsubstantiated by clear and
convincing evidence are negative and self-serving evidence which deserves no weight in
law and cannot be given greater evidentiary weight over the testimony of credible
witnesses. Ergo, as between the positive declarations of the prosecution witness and
the negative statements of the accused, the former deserves more credence." [page
754].'
However, Respondent conveniently resorts to section 33, Rule 130 of the Revised
Rules of Court which states that a declaration of an accused acknowledging his guilt of
the offense charged, or of any offense necessarily included herein, may be given in
evidence against him [affiants who executed Exhibits E-1 to E-10] but not against
Respondent.

There is no merit in this contention.

The affiants are not the accused. Their participation in the herein case is in the nature of
witnesses who have assumed the risk of being subsequently charged with violating
Section 261 [1] of BP 881. In fact, their affidavits were sought by the Petitioner and not by
any law enforcement agency. Even Respondent admits this finding when he filed his
Reply to Petitioner's Position Paper and Motion to Refer for Preliminary Investigation
and Filing of Information in Court against the Persons Who Executed Exhibits E-1 to E-10
for Having Admitted Commission of Election Offense. If they were the accused, why file
the motion? Would not this be redundant if not irrelevant?

x x x

Another telling blow is the unexplained money destined for the teachers. Why such a
huge amount? Why should the Respondent, a mayoralty candidate, and according to his
own admission, be giving money to teachers a day before the elections? What were the
peso bills doing in pay envelopes with the inscription "VOTE!!! TINOY", and kept in shoe
boxes with the word "Teachers" written on the covers thereof?

There is also something wrong with the issuance of the aforementioned MTB cards
when one considers the testimony of Burgos that more or less 50,000 of these cards,
which is equivalent to more or less 52% of the 97,000 registered voters of Meycauayan,
Bulacan, were printed by respondent; that there are only 443 precincts in Meycauayan;
that under the law, a candidate is allowed only one watcher per polling place and
canvassing area; and, finally, that there is no explanation at all by the respondent as to
what these "watchers" did in order to get paid P300.00 each.

x x x

Respondent also avers that for an allegation of vote-buying to prosper, the act of giving
must be consummated.

Section 281 [a] of BP 881 states "any person who gives, offers, or promises money x x x."
Section 28 of RA 6646 also states that "the giver, offeror, the promisor as well as the
solicitor, recipient and conspirator referred to in paragraphs [a] and [b] of section 261 of
Batas Pambansa Blg. 881 shall be liable as principals: x x x.

While the giving must be consummated, the mere act of offering or promising
something in consideration for someone's vote constitutes the offense of vote-buying.

In the case at bar, the acts of offering and promising money in consideration for the
votes of said affiants is sufficient for a finding of the commission of the offense of vote-
buying."
 These factual findings were affirmed by the COMELEC en banc against the lone
dissent of Commissioner Maambong.

There is an attempt to discredit these findings. Immediately obvious in the effort is the
resort to our technical rules of evidence. Again, our ingrained jurisprudence is that
technical rules of evidence should not be rigorously applied in administrative
proceedings especially where the law calls for the proceeding to be summary in
character. More importantly, we cannot depart from the settled norm of reviewing
decisions of the COMELEC, i.e., that "this Court cannot review the factual findings of the
COMELEC absent a grave abuse of discretion and a showing of arbitrariness in its
decision, order or resolution."[12]

We now come to the petition of Nolasco that he should be declared as mayor in the
event Blanco is finally disqualified. [13] We sustain the plea. Section 44, Chapter 2 of the
Local Government Code of 1991 (R.A. No. 7160) is unequivocal, thus:
"x x x

"SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor,
and Vice Mayor.- (a) If a permanent vacancy occurs in the office of the governor or
mayor, the vice governor or vice mayor concerned shall become the governor or mayor.
If a permanent vacancy occurs in the offices of the governor, vice governor, mayor, or
vice mayor, the highest ranking sanggunian member or, in case of his permanent
inability, the second highest ranking sanggunian member, shall become the governor,
vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the
said office shall be filled automatically by the other sanggunian members according to
their ranking as defined herein.

(b) If a permanent vacancy occurs in the office of the punong barangay, the highest
ranking sanggunian barangay member or, in case of his permanent inability, the second
highest ranking sanggunian member, shall become the punong barangay.

(c) A tie between or among the highest ranking sangguniang members shall be resolved
by the drawing of lots.

(d) The successors as defined herein shall serve only the unexpired terms of their
predecessors.

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.

For purposes of succession as provided in this Chapter, ranking in the sanggunian shall
be determined on the basis of the proportion of votes obtained by each winning
candidate to the total number of registered voters in each distribution the immediately
preceding election."

In the same vein, Article 83 of the Rules and Regulations Implementing, the Local
Government Code of 1991 provides:
    "x x x.

"ART. 83. Vacancies and Succession of Elective Local Officials.- (a) What constitutes
permanent vacancy - 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.

(b) Permanent vacancies in the offices of the governor, vice governor, mayor and vice
mayor -
(1) If a permanent vacancy occurs in the office of the governor or mayor, the vice
governor or vice mayor concerned shall ipso facto become the governor or mayor. If a
permanent vacancy occurs in the offices of the governor, vice governor, mayor, or vice
mayor, the highest ranking sanggunian member or, in case of his permanent inability,
the second highest ranking sanggunian member, shall ipso facto become the governor,
vice governor, mayor or vice mayor, as the case may be. Subsequent vacancies in the
said office shall be filled automatically by the other sanggunian members according to
their ranking as defined in this Article."

Our case law is now settled that in a mayoralty election, the candidate who obtained the
second highest number of votes, in this case Alarilla, cannot be proclaimed winner in
case the winning candidate is disqualified. Thus, we reiterated the rule in the fairly
recent case of Reyes v. COMELEC,[14] viz:

"x x x         x x x     x x x

"We likewise find no grave abuse of discretion on the part of the COMELEC in denying
petitioner Julius O. Garcia's petition to be proclaimed mayor in view of the
disqualification of Renato U. Reyes.

"That the candidate who obtains the second highest number of votes may not be
proclaimed winner in case the winning candidate is disqualified is now settled. The
doctrinal instability caused by see-sawing rulings has since been removed. In the latest
ruling on the question, this Court said:

To simplistically assume that the second placer would have received the other votes
would be to substitute our judgment for the mind of the voter. The second placer is just
that, a second placer. He lost the elections. 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 the
circumstances.

"Garcia's plea that the votes cast for Reyes be invalidated is without merit. The votes
cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and
for that reason can not be treated as stray, void, or meaningless. The subsequent finding
that he is disqualified cannot retroact to the date of the elections so as to invalidate the
votes cast for him."
Consequently, respondent COMELEC committed grave abuse of discretion insofar
as it failed to follow the above doctrine, a descendant of our ruling in Labo v. COMELEC.
[15]

A final word. The dispute at bar involves more than the mayoralty of the
municipality of Meycauyan, Bulacan. It concerns the right of suffrage which is the
bedrock of republicanism. Suffrage is the means by which our people express their
sovereign judgment. Its free exercise must be protected especially against the
purchasing power of the peso. As we succinctly held in People v. San Juan, [16] "each time
the enfranchised citizen goes to the polls to assert this sovereign will, that abiding credo
of republicanism is translated into living reality. If that will must remain undefiled at the
starting level of its expression and application, every assumption must be indulged in
and every guarantee adopted to assure the unmolested exercise of the citizen's free
choice. For to impede, without authority valid in law, the free and orderly exercise of
the right of suffrage, is to inflict the ultimate indignity on the democratic process."

IN VIEW WHEREOF, the resolution of the respondent COMELEC en banc dated October

23, 1995 is affirmed with the modification that petitioner Edgardo C. Nolasco is
adjudged as Mayor of Meycauyan, Bulacan in view of the disqualification of Florentino
P. Blanco. No costs.

SO ORDERED.
N
EN BANC

[G.R. No. 139357. May 5, 2000.]

ABDULMADID P.B. MARUHOM, Petitioner, v. COMMISSION ON ELECTIONS and

HADJI JAMIL DIMAPORO, Respondents.

DECISION

YNARES- SANTIAGO, J.:

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, 1999 1 dismissing
Comelec Case SPR No. 52-98. chanrobles.com : virtual law library

The COMELEC’s challenged order summarizes the relevant facts of the controversy
thus:chanrob1es virtual 1aw library

1. Petitioner and private respondent were both candidates for Mayor in the Municipality
of Maragong, 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;

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;

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 rejected, while in Precincts Nos. 12A, 23A1 and 6A, around 56 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 representative; chanrobles virtuallawlibrary:red

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

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. chanrobles virtuallawlibrary

x          x           x

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 v.
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 . .

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 . . .

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 . . .

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 respondent court to finish the revision of ballots, if possible, within 20
days from the commencement of the revision 9 . . .

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.

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 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 his Honorable Commission. chanrobles.com.ph : red

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. 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

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

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 13 and on October 5, 1998 private respondent filed his comment 14
thereto and thereafter all incidents were submitted for resolution of the court.

14. On November 10, 1998, the respondent court thru Honorable Presiding Judge
Moslemen T. Macarambon, issued the assailed order denying the petitioner’s motion
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

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

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 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

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 . . .

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 notion and ordering the Revision Committee to hold in abeyance the
scheduled revision of ballots on December 14, 15, 16, 17 and 18, 1998, etc. until
further order from the court. . . 20

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

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;

3.] failing to resolve the issues raised in SPR No. 52-98 which are sufficient legal bases
to dismiss Election Case No. 11-127.

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: chanrob1es virtual 1aw library

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: chanrob1es virtual 1aw library

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.

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 —

. . . [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 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
Section 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,
plebscite, 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 election Sumulong v. COMELEC 22 aptly points
out that —

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. chanrobles.com.ph:red

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.
23 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.

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

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. chanrobles virtual lawlibrary

We disagree.

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 to avert the revision ballots. These events, pointed out by private respondent
25 and borne by the record, show 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 forum-shopping warranting summary dismissal of
the protest;

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; chanrobles virtuallawlibrary:red

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;

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

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

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;

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 another
counsel. Considering that 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; 33

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;

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

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. chanrobles virtual lawlibrary

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 —

SECTION 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 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)

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.

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 petitioners claim is to open the ballot boxes in the protested precincts
followed by the examination, revision, recounting and re-appreciation 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. chanrobles virtuallawlibrary:red

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 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:
virtual 1aw library
chanrob1es

. . . 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, plebscite, 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 powers of COMELEC in the conduct of our elections . . . In the case a
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 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 . . .

. . . 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. chanrobles.com : chanrobles.com.ph

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." 43

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 —

SECTION 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-a-vis this Court’s pronouncement in Samad v. COMELEC
44 which states in no uncertain terms that —

As a general rule, the filing of an election protest or a petition for quo warranto
precludes the subsequent filing of a pre-proclamation controversy, or amounts to the
abandonment of one earlier filed, thus depriving the COMELEC of the authority to
inquire into and pass upon the title of the protestee or the validity of his proclamation.
The reason is that once the 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 proceedings. 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.

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 petition for quo warranto or an election protest but a petition to
annul a proclamation; (4) the filing of a quo warranto petition to annul a proclamation
controversy or was made ad cautelam; and (5) the proclamation was null and void. chanrobles virtua| |aw |ibrary

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

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

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.

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

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 can not be doubted.
Indeed, as reasoned by the COMELEC, the —

. . . 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. chanrobles virtual lawlibrary

Moreover —

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

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

SO ORDERED.

THIRD DIVISION
[ G.R. No. 123037, March 21, 1997 ]
TEODORO Q. PEÑA, PETITIONER, VS. HOUSE OF REPRESENTATIVES
ELECTORAL TRIBUNAL AND ALFREDO E. ABUEG, JR., RESPONDENTS.
 DECISION

TORRES, JR., J.:

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. Peña 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, 195, upon canvassing the votes cast, the
Provincial Board of Canvassers of Palawan proclaimed the private respondent as the
winner.

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 vote-buying, 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 vote-buying 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.

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’.

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 would have garnered
the highest number of votes for the Office 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.

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]
Private respondent-Protestee Abueg filed an Answer With Affirmative Defense,
Counterclaim and Counter-Protest[3] on June 5, 1995, to which Peña 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.

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.

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:

“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.

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, ‘while 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. xxx 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. xxx’

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.’ 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)

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.
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 Peña’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.

Protestant alleges in his Opposition that Protestee has likewise failed to specify the 47
precincts he contests in his Counter-Protest. This omission merely renders Protestee’s
Counter-Protest 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 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 pronouncement as to costs.

SO ORDERED.”[6]

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

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:

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

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.”

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.

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.”
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.

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.
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:
“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.”
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.

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 assumptions of an elected
public official may, and will always be held up by petitions of this sort by the losing
candidate.

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 occurences 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.

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 proclamation of the
winner.

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]

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] xxx This is
as it should be, for the democratic system is good for the many although abhorred by a
few.

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 a grave abuse of discretion is clearly shown shall the Court interfere
with the electoral tribunal’s judgment. There is 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.
SO ORDERED.

EN BANC
 [ G.R. Nos. 111624-25, March 09, 1995 ]
ALFONSO C. BINCE, JR., PETITIONER, VS. COMMISSION ON
ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF PANGASINAN,
MUNICIPAL BOARDS OF CANVASSERS OF TAYUG AND SAN MANUEL,
PANGASINAN, AND EMILIANO MICU, RESPONDENTS.

DECISION

KAPUNAN, J.:

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 Sangguniang 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 (COCs) 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 ruled 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 candidate Alfonso C. Bince with 1,055 votes in the municipality of San Quintin,
Pangasinan. [2]

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 alleged manifest
errors committed in the computation thereof.

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.

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.

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, ruled “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]

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.

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 a Temporary
Restraining Order (TRO).

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 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 Micu 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:

(1) To RECONVENE 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;

(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]
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 to 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:

The Commission RESOLVED, as it hereby RESOLVES:

1. To direct Prosecutor Jose Antonio Guillermo and Supt. Primo Mina, vice-chairman and
secretary, respectively, of the Provincial Board of Canvassers of Pangasinan, to show
cause why they should not be declared in contempt for defying and disobeying the
Resolution of this Commission dated 09 July 1992, directing them to RECONVENE
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 Certificates of Canvass of the
Municipal Boards of Canvassers of Tayug and San Manuel, Pangasinan;

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;

3. To DIRECT the Provincial Board of Canvassers to reconvene 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]

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:

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
annulment of the petitioner's proclamation.

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 regularity 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:

(1)    To RECONVENE 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;

(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. (Emphasis supplied)

The PBC thus had every reason to believe that the phrase ‘completed and corrected’
COCs could only refer to the nine (9) COCs for the nine municipalities, the 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, 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.

xxx                 xxx                    xxx

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), 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, xxx 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.

Hence, the COMELEC en banc had no jurisdiction to decide on the aforesaid motion to

annul the proclamation; consequently, its 29 July 1992 Resolution is null and void. For
this reason too, the COMELEC en banc Resolution of 6 June 1992 in SPC No. 92-208
resolving the private respondent's appeal from the ruling of the PBC with respect to the
COC of San Quintin is similarly void.

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 the
members of said Boards convened to 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-1” 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
respective Boards. 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 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 the 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.

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 respondent COMELEC referring to
‘the corrected 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 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.

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:

x x x 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).

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);

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 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'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.

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,
are hereby ANNULLED and SET ASIDE and respondent Commission on Elections is
DIRECTED to resolve the pending incidents conformably with the foregoing disquisitions
and pronouncements.

No costs.

SO ORDERED. [11]

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.

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

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.

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.

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]

On July 20, 1993, private respondent Micu filed a Motion for Reconsideration of the
above-quoted resolution.
On September 9, 1993, the COMELEC en banc granted the private respondent's 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 PBC is likewise ordered to proclaim the second elected member of the Sangguniang
Panlalawigan of the Sixth Legislative District of Pangasinan.

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.

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.

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.

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.

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 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 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 non-existent 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.

(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.

(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.

(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.

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

(h) The appeal shall be heard and decided by the Commission en banc. (Underscoring
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] we categorically declared that:

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 vs. Commission on Elections (178 SCRA 746), this Court had the
occasion to declare that:

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. 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 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). xxx (Juliano vs. Court of Appeals, supra, pp. 818-819). (Underscoring ours)

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:

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).

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.

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.

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.

Consequently, by margin of 72 votes, private respondent indisputably won the

challenged seat in the Sangguniang Panlalawigan of the sixth district of Pangasinan.
Petitioner's proclamation and assumption into public office was therefore 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.

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.

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

SO ORDERED.

EN BANC
[ G.R. No. 125629, March 25, 1998 ]
MANUEL  C.  SUNGA, PETITIONER, VS. COMMISSION ON ELECTIONS
AND FERDINAND B. TRINIDAD, RESPONDENTS.

DECISION

BELLOSILLO, J.:

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.

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 22 April 1995 Sunga filed with the COMELEC a letter-complaint [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.

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.

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 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.

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 –

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 x x x x
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 x x x x
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.
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 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.
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.

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.

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

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 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.

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 –

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.

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]

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 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.

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 (underscoring supplied).

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.

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.

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 disqualification case. In Aguam v. COMELEC[12] this Court held -

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 x x x x 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.

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]

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 –

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.

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.

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]

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]

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:

To simplistically assume that the second placer would have received the
other votes would be to substitute our judgment for the mind of the voter. The
second placer is just that, a second placer. He lost the elections. 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.

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

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]

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.
 EN BANC
[ G. R. No. 181613, September 11, 2009 ]
ROSALINDA A. PENERA, PETITIONER, VS. COMMISSION ON
ELECTIONS AND EDGAR T. ANDANAR, RESPONDENTS.

DECISION

CHICO-NAZARIO, J.:

This Petition for Certiorari with Prayer for the Issuance of a Writ of Preliminary

Injunction and/or Temporary Restraining Order [1] under Rule 65, in relation to Rule 64 of
the Rules of Court, seeks the nullification of the Resolution[2] dated 30 January 2008 of
the Commission on Elections (COMELEC) en banc. Said Resolution denied the Motion
for Reconsideration of the earlier Resolution[3] dated 24 July 2007 of the COMELEC
Second Division in SPA No. 07-224, ordering the disqualification of herein petitioner
Rosalinda A. Penera (Penera) as a candidate for the position of mayor of the Municipality
of Sta. Monica, Surigao del Norte (Sta. Monica) in the 2007 Synchronized National and
Local Elections.

The antecedents of the case, both factual and procedural, are set forth hereunder:

Penera and private respondent Edgar T. Andanar (Andanar) were mayoralty candidates in
Sta. Monica during the 14 May 2007 elections.

On 2 April 2007, Andanar filed before the Office of the Regional Election Director
(ORED), Caraga Region (Region XIII), a Petition for Disqualification[4] against Penera,
as well as the candidates for Vice-Mayor and Sangguniang Bayan who belonged to her
political party,[5] for unlawfully engaging in election campaigning and partisan political
activity prior to the commencement of the campaign period. The petition was docketed as
SPA No. 07-224.

Andanar claimed that on 29 March 2007 - a day before the start of the authorized
campaign period on 30 March 2007 - Penera and her partymates went around the
different barangays in Sta. Monica, announcing their candidacies and requesting the
people to vote for them on the day of the elections. Attached to the Petition were the
Affidavits of individuals[6] who witnessed the said incident.
Penera alone filed an Answer[7] to the Petition on 19 April 2007, averring that the charge
of premature campaigning was not true. Although Penera admitted that a motorcade did
take place, she explained that it was simply in accordance with the usual practice in
nearby cities and provinces, where the filing of certificates of candidacy (COCs) was
preceded by a motorcade, which dispersed soon after the completion of such filing. In
fact, Penera claimed, in the motorcade held by her political party, no person made any
speech, not even any of the candidates. Instead, there was only marching music in the
background and "a grand standing for the purpose of raising the hands of the candidates
in the motorcade." Finally, Penera cited Barroso v. Ampig[8] in her defense, wherein the
Court supposedly ruled that a motorcade held by candidates during the filing of their
COCs was not a form of political campaigning.

Also on 19 April 2007, Andanar and Penera appeared with their counsels before the
ORED-Region XIII, where they agreed to submit their position papers and other evidence
in support of their allegations.[9]

After the parties filed their respective Position Papers, the records of the case were
transmitted to the COMELEC main office in Manila for adjudication. It was subsequently
raffled to the COMELEC Second Division.

While SPA No. 07-224 was pending before the COMELEC Second Division, the 14 May
2007 elections took place and, as a result thereof, Penera was proclaimed the duly elected
Mayor of Sta. Monica. Penera soon assumed office on 2 July 2002.

On 24 July 2007, the COMELEC Second Division issued its Resolution in SPA No. 07-
224, penned by Commissioner Nicodemo T. Ferrer (Ferrer), which disqualified Penera
from continuing as a mayoralty candidate in Sta. Monica, for engaging in premature
campaigning, in violation of Sections 80 and 68 of the Omnibus Election Code.

The COMELEC Second Division found that:

On the afternoon of 29 March 2007, the 1st [sic] day to file the certificates of candidacy
for local elective positions and a day before the start of the campaign period for the May
14, 2007 elections - [some of the members of the political party Partido Padajon Surigao],
headed by their mayoralty candidate "Datty" Penera, filed their respective Certificates of
Candidacy before the Municipal Election Officer of Sta. Monica, Surigao del Norte.

Accompanied by a bevy of supporters, [Penera and her partymates] came to the

municipal COMELEC office on board a convoy of two (2) trucks and an undetermined
number of motorcycles, laden with balloons ad [sic] posters/banners containing names
and pictures and the municipal positions for which they were seeking election. Installed
with [sic] one of the trucks was a public speaker sound subsystem which broadcast [sic]
the intent the [sic] run in the coming elections. The truck had the posters of Penera
attached to it proclaiming his [sic] candidacy for mayor. The streamer of [Mar Longos, a
candidate for the position of Board Member,] was proudly seen at the vehicle's side. The
group proceeded to motorcade until the barangays of Bailan, Libertad and as afar [sic] as
Mabini almost nine (9) kilometers from Sta. Monica. [Penera and her partymates] were
seen aboard the vehicles and throwing candies to the residents and onlookers.

Various affidavits and pictures were submitted elucidating the above-mentioned facts.
The above facts were also admitted in the Answer, the Position Paper and during the
hearings conducted for this case, the only defense propounded by [Penera] is that such
acts allegedly do not constitute campaigning and is therefore not proscribed by the
pertinent election laws.

xxxx

What we however find disturbing is [Penera's] reference to the Ampig Case as the

justification for the acts committed by [her]. There is really no reference to the acts or
similar acts committed by [Penera] as having been considered as not constituting political
campaign or partisan political activity. The issue in that case is whether or not the defect
of the lack of a certification against non-forum [sic] shopping should result to the
immediate dismissal of the election cases filed in that case. There is nothing in said case
justifying a motorcade during the filing of certificates of candidacy. [Penera's] reliance
thereon is therefore misplaced and of no potency at all.

xxxx

However, the photos submitted by [Andanar] only identified [Penera] and did not have
any notation identifying or indicating any of the other [candidates from Penera's party]. It
cannot be conclusively proven that the other [candidates from Penera's party] were indeed
with Penera during the Motorcade. More importantly, the Answer and the Position Paper
contain admissions referring only to [Penera]. There is therefore no justification for a
whole sale [sic] disqualification of all the [candidates from Penera's party], as even the
petition failed to mention particularly the participation of the other individual [party
members].[10]

The afore-quoted findings of fact led the COMELEC Second Division to decree:

PREMISES CONSIDERED, this Commission resolves to disqualify [Penera] but

absolves the other [candidates from Penera's party] from violation of section 80 and 68 of
the Omnibus Elections [sic] Code.[11]

Commissioner Florentino A. Tuason, Jr. (Tuason) wrote a Separate Opinion [12] on the 24
July 2007 Resolution. Although Commissioner Tuason concurred with the ponente, he
stressed that, indeed, Penera should be made accountable for her actions after the filing of
her COC on 29 March 2007. Prior thereto, there was no candidate yet whose candidacy
would have been enhanced by the premature campaigning.

It was the third member of the COMELEC Second Division, Commissioner Rene V.
Sarmiento (Sarmiento) who put forth a Dissenting Opinion[13] on the 24 July 2007
Resolution. Commissioner Sarmiento believed that the pieces of evidence submitted by
Andanar did not sufficiently establish probable cause that Penera engaged in premature
campaigning, in violation of Sections 80 and 68 of the Omnibus Election Code. The two
photocopied pictures, purporting to be those of Penera, did not clearly reveal what was
actually happening in the truck or who were the passengers thereof. Likewise, the
Affidavits seemed to have been prepared and executed by one and the same person
because they had similar sentence construction and form, and they were sworn to before
the same attesting officer.

Penera filed before the COMELEC en banc a Motion for Reconsideration[14] of the 24
July 2007 Resolution of the COMELEC Second Division, maintaining that she did not
make any admission on the factual matters stated in the appealed resolution. Penera also
contended that the pictures and Affidavits submitted by Andanar should not have been
given any credence. The pictures were mere photocopies of the originals and lacked the
proper authentication, while the Affidavits were taken ex parte, which would almost
always make them incomplete and inaccurate. Subsequently, Penera filed a Supplemental
Motion for Reconsideration,[15] explaining that supporters spontaneously accompanied
Penera and her fellow candidates in filing their COCs, and the motorcade that took place
after the filing was actually part of the dispersal of said supporters and their
transportation back to their respective barangays.

In the Resolution dated 30 January 2008, the COMELEC en banc denied Penera's Motion
for Reconsideration, disposing thus:

WHEREFORE, this Commission RESOLVES to DENY the instant Motion for

Reconsideration filed by [Penera] for UTTER LACK OF MERIT.[16]

The COMELEC en banc ruled that Penera could no longer advance the arguments set
forth in her Motion for Reconsideration and Supplemental Motion for Reconsideration,
given that she failed to first express and elucidate on the same in her Answer and Position
Paper. Penera did not specifically deny the material averments that the motorcade "went
as far as Barangay Mabini, announcing their candidacy and requesting the people to vote
for them on Election Day," despite the fact that the same were clearly propounded by
Andanar in his Petition for Disqualification and Position Paper. Therefore, these material
averments should be considered admitted. Although the COMELEC en banc agreed that
no undue importance should be given to sworn statements or affidavits submitted as
evidence, this did not mean that such affidavits should not be given any evidentiary
weight at all. Since Penera neither refuted the material averments in Andanar's Petition
and the Affidavits attached thereto nor submitted countervailing evidence, then said
Affidavits, even if taken ex parte, deserve some degree of importance. The
COMELEC en banc likewise conceded that the pictures submitted by Andanar as
evidence would have been unreliable, but only if they were presented by their lonesome.
However, said pictures, together with Penera's admissions and the Affidavits of
Andanar's witnesses, constituted sufficient evidence to establish Penera's violation of the
rule against premature campaigning. Lastly, the COMELEC en banc accused Penera of
deliberately trying to mislead the Commission by citing Barroso, given that the said case
was not even remotely applicable to the case at bar.

Consistent with his previous stand, Commissioner Sarmiento again dissented[17] from the
30 January 2008 Resolution of the COMELEC en banc. He still believed that Andanar
was not able to adduce substantial evidence that would support the claim of violation of
election laws. Particularly, Commissioner Sarmiento accepted Penera's explanation that
the motorcade conducted after the filing by Penera and the other candidates of their
COCs was merely part of the dispersal of the spontaneous gathering of their supporters.
The incident was only in accord with normal human social experience.

Still undeterred, Penera filed the instant Petition before us, praying that the Resolutions
dated 24 July 2007 and 30 January 2008 of the COMELEC Second Division and en banc,
respectively, be declared null and void for having been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction.

In a Resolution[18] dated 4 March 2008, we issued a Temporary Restraining Order (TRO),

enjoining the COMELEC from implementing the assailed Resolutions, on the condition
that Penera post a bond in the amount of P5,000.00. We also directed COMELEC and
Andanar to comment on the instant Petition.

After the COMELEC, through the Office of the Solicitor General (OSG), and Andanar
filed their respective Comments[19] on the Petition at bar, we required Penera, in a
Resolution[20] dated 17 June 2008, to file a Reply. However, as no Reply was filed in due
time, we dismissed Penera's Petition in a Resolution[21] dated 14 October 2008, in
accordance with Rule 56, Section 5(e) of the Rules of Court.[22] Penera subsequently filed
an Ex Parte Motion to Admit Reply,[23] which we treated as a Motion for Reconsideration
of the Resolution dated 14 October 2008. On 11 November 2008, we issued another
Resolution reinstating Penera's Petition.[24]

Penera presents the following issues for our consideration:

I.

Whether or not [Penera] has engaged in an election campaign or partisan political activity
outside the campaign period.
 II.

Whether the contents of the complaint are deemed admitted for failure of [Penera] to
specifically deny the same.

III.

Whether or not [Andanar] has presented competent and substantial evidence to justify a
conclusion that [Penera] violated Section 80 and 68 of the Omnibus Election Code.

IV.

Whether or not [the COMELEC] committed grave abuse of discretion amounting to lack
of or in excess of jurisdiction in finding that the act of [Penera] in conducting a
motorcade before the filing of her certificate of candidacy constitutes premature
campaigning.

V.

Whether or not [the COMELEC] committed grave abuse of discretion amounting to lack
of or in excess of jurisdiction when it resolves [sic] to disqualify [Penera] despite the
failure of [Andanar] to present competent, admissible and substantial evidence to prove
[the] violation of Section 68 and 80 of the Omnibus Election Code.

Penera claims that the COMELEC exercised its discretion despotically, arbitrarily and
whimsically in disqualifying her as a mayoralty candidate in Sta. Monica on the ground
that she engaged in premature campaigning. She asserts that the evidence adduced by
Andanar was grossly insufficient to warrant the ruling of the COMELEC.

Penera insists that the COMELEC Second Division erred in its findings of fact, basically
adopting Andanar's allegations which, contrary to the belief of the COMELEC Second
Division, Penera never admitted. Penera maintains that the motorcade was spontaneous
and unplanned, and the supporters merely joined Penera and the other candidates from
her party along the way to, as well as within the premises of, the office of the COMELEC
Municipal Election Officer. Andanar's averments - that after Penera and the other
candidates from her party filed their COCs, they held a motorcade in the
different barangays of Sta. Monica, waived their hands to the public and threw candies to
the onlookers - were not supported by competent substantial evidence. Echoing
Commissioner Sarmiento's dissent from the assailed COMELEC Resolutions, Penera
argues that too much weight and credence were given to the pictures and Affidavits
submitted by Andanar. The declaration by the COMELEC that it was Penera in the
pictures is tenuous and erroneous, as the COMELEC has no personal knowledge of
Penera's identity, and the said pictures do not clearly reveal the faces of the individuals
and the contents of the posters therein. In the same vein, the Affidavits of Andanar's
known supporters, executed almost a month after Andanar filed his Petition for
Disqualification before the ORED-Region XIII, were obviously prepared and executed
by one and the same person, because they have a similar sentence construction, and
computer font and form, and were even sworn to before the same attesting officer on the
same date.

We find no merit in the instant Petition.

The questions of fact

Crystal clear from the above arguments is that Penera is raising only questions of fact in
her Petition presently before us. We do not find any reason to pass upon the same, as this
Court is not a trier of facts. It is not the function of the Court to review, examine and
evaluate or weigh the probative value of the evidence presented. A question of fact would
arise in such an event.

The sole function of a writ of certiorari is to address issues of want of jurisdiction or

grave abuse of discretion, and it does not include a review of the tribunal's evaluation of
the evidence.[25] Because of its fact-finding facilities and its knowledge derived from
actual experience, the COMELEC is in a peculiarly advantageous position to evaluate,
appreciate and decide on factual questions before it. Factual findings of the COMELEC,
based on its own assessments and duly supported by evidence, are conclusive on this
Court, more so in the absence of a grave abuse of discretion, arbitrariness, fraud, or error
of law in the questioned resolutions. Unless any of these causes are clearly substantiated,
the Court will not interfere with the findings of fact of the COMELEC. [26]

Grave abuse of discretion is 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.[27]

We find no grave abuse of discretion amounting to lack or excess of jurisdiction on the

part of the COMELEC Second Division in disqualifying Penera as a mayoralty candidate
in Sta. Monica in the Resolution dated 24 July 2007; and also on the part of the
COMELEC en banc in denying Penera's Motion for Reconsideration on the Resolution
dated 30 January 2008. Said Resolutions are sufficiently supported by substantial
evidence, meaning, such evidence as a reasonable mind might accept as adequate to
support a conclusion.[28]
The prohibited act of premature campaigning is defined under Section 80 of the Omnibus
Election Code, to wit:

SECTION 80. Election campaign or partisan political activity outside campaign period.

-- It shall be unlawful for any person, whether or not a voter or candidate, or for
any party, or association of persons, to engage in an election campaign or partisan
political activity except during the campaign period: Provided, That political parties
may hold political conventions or meetings to nominate their official candidates
withinthirty daysbeforethecommencement ofthe campaign period and forty-five days for
Presidential and Vice-Presidential election. (Emphasis ours.)

If the commission of the prohibited act of premature campaigning is duly proven, the
consequence of the violation is clearly spelled out in Section 68 of the said Code, which
reads:

SECTION. 68. Disqualifications. - Any candidate who, in an action or protest in which

he is a party is declared by final decision of a competent court guilty of, or found by the
Commission of having xxx (e) violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, subparagraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person who is a
permanent resident of or an immigrant to a foreign country shall not be qualified to run
for any elective office under this Code, unless said person has waived his status as
permanent resident or immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws. (Emphases ours.)

In the case at bar, it had been sufficiently established, not just by Andanar's evidence, but
also those of Penera herself, that Penera and her partymates, after filing their COCs on 29
March 2007, participated in a motorcade which passed through the different barangays of
Sta. Monica, waived their hands to the public, and threw candies to the onlookers.

Indeed, Penera expressly admitted in her Position Paper that:

Respondents actually had a motorcade of only two (2) jeppneys [sic] and ten (10)
motorcycles after filing their Certificate of Candidacy at 3:00 P.M., March 29, 2007
without any speeches made and only one streamer of a board member Candidate and
multi-colored balloons attached to the jeppneys [sic] and motorcycles. [29] (Emphasis
ours.)

Additionally, the Joint Affidavit of Marcial Dolar, Allan Llatona, and Renante Platil,
attached to Penera's Position Paper, gave an even more straightforward account of the
events, thus:
 1. That on March 29, 2007 at 3:00 P.M. at Sta. Monica, Surigao del Norte, Mayoralty
Candidates Rosalinda CA. Penera [sic] and her parties of four (4) kagawads filed
their certificate of candidacy at the COMELEC Office;

2. That their [sic] was a motorcade consisting of two jeppneys [sic] and 10
motorcycles after actual registration with the COMELEC with jeeps decorated
with balloons and a streamer of Margarito Longos, Board Member Candidate;

3. That the motorcade proceeded to three (3) barangays out of the 11 barangays

while supporters were throwing sweet candies to the crowd;

4. That there was merriment and marching music without mention of any name of

the candidates more particularly lead-candidate Rosalinda CA. Penera [sic];

5. That we were in the motorcade on that afternoon only riding in one of the
jeepneys.[30] (Emphases ours.)

In view of the foregoing admissions by Penera and her witnesses, Penera cannot now be
allowed to adopt a conflicting position.

More importantly, the conduct of a motorcade is a form of election campaign or partisan

political activity, falling squarely within the ambit of Section 79(b)(2) of the Omnibus
Election Code, on "[h]olding political caucuses, conferences, meetings, rallies, parades,
or other similar assemblies, for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a candidate[.]" A motorcade is a procession or
parade of automobiles or other motor vehicles.[31] The conduct thereof during election
periods by the candidates and their supporters is a fact that need not be belabored due to
its widespread and pervasive practice. The obvious purpose of the conduct of motorcades
is to introduce the candidates and the positions, to which they seek to be elected, to the
voting public; or to make them more visible so as to facilitate the recognition and
recollection of their names in the minds of the voters come election time. Unmistakably,
motorcades are undertaken for no other purpose than to promote the election of a
particular candidate or candidates.

In the instant Petition, Penera never denied that she took part in the conduct of the
motorcade after she filed her COC on the day before the start of the campaign period. She
merely claimed that the same was not undertaken for campaign purposes. Penera
proffered the excuse that the motorcade was already part of the dispersal of the supporters
who spontaneously accompanied Penera and her partymates in filing their COCs. The
said supporters were already being transported back to their respective barangays after
the COC filing. Penera stressed that no speech was made by any person, and there was
only background marching music and a "grand standing for the purpose of raising the
hands of the candidates in the motorcade.

We are not convinced.

As we previously noted, Penera and her witnesses admitted that the vehicles, consisting
of two jeepneys and ten motorcycles, were festooned with multi-colored balloons; the
motorcade went around three barangays in Sta. Monica; and Penera and her partymates
waved their hands and threw sweet candies to the crowd. With vehicles, balloons, and
even candies on hand, Penera can hardly persuade us that the motorcade was spontaneous
and unplanned.

For violating Section 80 of the Omnibus Election Code, proscribing election campaign or
partisan political activity outside the campaign period, Penera must be disqualified from
holding the office of Mayor of Sta. Monica.

The questions of law

The dissenting opinion, however, raises the legal issue that Section 15 of Republic Act
No. 8436, as amended by Republic Act No. 9369, provides a new definition of the term
"candidate," as a result of which, premature campaigning may no longer be committed.

Under Section 79(a) of the Omnibus Election Code, a candidate is "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."

Republic Act No. 8436,[32] enacted on 22 December 1997, authorized the COMELEC to

use an automated election system for the process of voting, counting of votes, and
canvassing/consolidating the results of the national and local elections. The statute also
mandated the COMELEC to acquire automated counting machines, computer equipment,
devices and materials; and to adopt new electoral forms and printing materials. In
particular, Section 11 of Republic Act No. 8436 provided for the specifications of the
official ballots to be used in the automated election system and the guidelines for the
printing thereof, the relevant portions of which state:

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.

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. (Emphases ours.)

On 10 February 2007, Republic Act No. 9369[33] took effect. Section 13 of Republic Act
No. 9369 amended Section 11 of Republic Act No. 8436 and renumbered the same as the
new Section 15 of Republic Act No. 8436. The pertinent portions of Section 15 of
Republic Act No. 8436, as amended by Republic Act No. 9369, now read:

SECTION.15. Official Ballot. - The Commission shall prescribe the format of the

electronic display and/or the size and form of the official ballot, which shall contain the
titles of the position to be filled and/or the proposition to be voted upon in an initiative,
referendum or plebiscite. Where practicable, electronic displays must be constructed to
present the names of all candidates for the same position in the same page or screen,
otherwise, the electronic displays must be constructed to present the entire ballot to the
voter, in a series of sequential pages, and to ensure that the voter sees all of the ballot
options on all pages before completing his or her vote and to allow the voter to review
and change all ballot choices prior to completing and casting his or her ballot. Under each
position to be filled, the names of candidates shall be arranged alphabetically by surname
and uniformly indicated using the same type size. The maiden or married name shall be
listed in the official ballot, as preferred by the female candidate. Under each proposition
to be vote upon, the choices should be uniformly indicated using the same font and size.

A fixed space where the chairman of the board of election inspector shall affix her/her
signature to authenticate the official ballot shall be provided.

For this purpose, the Commission shall set the deadline for the filing of certificate of
candidacy/petition of 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
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 government-owned or-controlled
corporations, shall be considered ipso factor resigned from his/her office and must vacate
the same at the start of the day of the filing of his/her certification of candidacy.
(Emphases ours.)

In view of the third paragraph of Section 15 of Republic Act No. 8436, as amended, the
Dissenting Opinion argues that Section 80 of the Omnibus Election Code can not be
applied to the present case since, as the Court held in Lanot v. Commission on Elections,
[34]
 the election campaign or partisan activity, which constitute the prohibited premature
campaigning, should be designed to promote the election or defeat of a particular
candidate or candidates. Under present election laws, while a person may have filed
his/her COC within the prescribed period for doing so, said person shall not be
considered a candidate until the start of the campaign period. Thus, prior to the start of
the campaign period, there can be no election campaign or partisan political activity
designed to promote the election or defeat of a particular candidate to public office
because there is no candidate to speak of.

According to the Dissenting Opinion, even if Penera's acts before the start of the
campaign period constitute election campaigning or partisan political activities, these are
not punishable under Section 80 of the Omnibus Election Code given that she was not yet
a candidate at that time. On the other hand, Penera's acts, if committed within the
campaign period, when she was already a candidate, are likewise not covered by Section
80 as this provision punishes only acts outside the campaign period.

The Dissenting Opinion ultimately concludes that because of Section 15 of Republic Act
No. 8436, as amended, the prohibited act of premature campaigning in Section 80 of the
Omnibus Election Code, is practically impossible to commit at any time.

We disagree. Section 80 of the Omnibus Election Code remains relevant and applicable
despite Section 15 of Republic Act No. 8436, as amended.

A close reading of the entire Republic Act No. 9369, which amended Republic Act No.
8436, would readily reveal that that it did not contain an express repeal of Section 80 of
the Omnibus Election Code. An express repeal is one wherein a statute declares, usually
in its repealing clause, that a particular and specific law, identified by its number or
title, is repealed.[35] Absent this specific requirement, an express repeal may not be
presumed.

Although the title of Republic Act No. 9369 particularly mentioned the amendment of
Batas Pambansa Blg. 881, or the Omnibus Election Code, to wit:
An Act Amending Republic Act No. 8436, Entitled "An Act Authorizing the
Commission on Elections to Use an Automated Election System x x x, Amending for
the Purpose Batas Pambansa Blg. 881, As Amended x x x. (Emphasis ours.),

said title explicitly mentions, not the repeal, but the amendment of Batas Pambansa Blg.
881. Such fact is indeed very material. Repeal of a law means its complete abrogation by
the enactment of a subsequent statute, whereas the amendment of a statute means an
alteration in the law already existing, leaving some part of the original still standing.
[36]
 Section 80 of the Omnibus Election Code is not even one of the specific provisions of
the said code that were expressly amended by Republic Act No. 9369.

Additionally, Section 46,[37] the repealing clause of Republic Act No. 9369, states that:

Sec. 46. Repealing Clause. - All laws, presidential decrees, executive orders, rules and
regulations or parts thereof inconsistent with the provisions of this Act are hereby
repealed or modified accordingly.

Section 46 of Republic Act No. 9369 is a general repealing clause. It is a clause which
predicates the intended repeal under the condition that a substantial conflict must be
found in existing and prior acts. The failure to add a specific repealing clause indicates
that the intent was not to repeal any existing law, unless an irreconcilable inconsistency
and repugnancy exist in the terms of the new and old laws. This latter situation falls
under the category of an implied repeal.[38]

Well-settled is the rule in statutory construction that implied repeals are disfavored. In
order to effect a repeal by implication, the later statute must be so irreconcilably
inconsistent and repugnant with the existing law that they cannot be made to reconcile
and stand together. The clearest case possible must be made before the inference of
implied repeal may be drawn, for inconsistency is never presumed. There must be a
showing of repugnance clear and convincing in character. The language used in the later
statute must be such as to render it irreconcilable with what had been formerly enacted.
An inconsistency that falls short of that standard does not suffice.[39]

Courts of justice, when confronted with apparently conflicting statutes, should endeavor
to reconcile the same instead of declaring outright the invalidity of one as against the
other. Such alacrity should be avoided. The wise policy is for the judge
to harmonize them if this is possible, bearing in mind that they are equally the
handiwork of the same legislature, and so give effect to both while at the same time also
according due respect to a coordinate department of the government.[40]

To our mind, there is no absolute and irreconcilable incompatibility between Section

15 of Republic Act No. 8436, as amended, and Section 80 of the Omnibus Election Code,
which defines the prohibited act of premature campaigning. It is possible to harmonize
and reconcile these two provisions and, thus, give effect to both.

The following points are explanatory:

First, Section 80 of the Omnibus Election Code, on premature campaigning, explicitly

provides that "[i]t shall be unlawful for any person, whether or not a voter or
candidate, or for any party, or association of persons, to engage in an election campaign
or partisan political activity, except during the campaign period." Very simply,
premature campaigning may be committed even by a person who is not a candidate.

For this reason, the plain declaration in Lanot that "[w]hat Section 80 of the Omnibus
Election Code prohibits is `an election campaign or partisan political activity' by a
`candidate' `outside' of the campaign period,"[41] is clearly erroneous.

Second, Section 79(b) of the Omnibus Election Code defines election campaign or
partisan political activity in the following manner:

SECTION 79. Definitions. - As used in this Code:

xxxx

(b) The term "election campaign" or "partisan political activity" refers to an act
designed to promote the election or defeat of a particular candidate or candidates to a
public office which shall include:

(1) Forming organizations, associations, clubs, committees or other groups of persons for
the purpose of soliciting votes and/or undertaking any campaign for or against a
candidate;

(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar
assemblies, for the purpose of soliciting votes and/or undertaking any campaign or
propaganda for or against a candidate;

(3) Making speeches, announcements or commentaries, or holding interviews for or

against the election of any candidate for public office;

(4) Publishing or distributing campaign literature or materials designed to support or

oppose the election of any candidate; or

(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.

True, that pursuant to Section 15 of Republic Act No. 8436, as amended, even after the
filing of the COC but before the start of the campaign period, a person is not yet officially
considered a candidate. Nevertheless, a person, upon the filing of his/her
COC, already explicitly declares his/her intention to run as a candidate in the coming
elections. The commission by such a person of any of the acts enumerated under Section
79(b) of the Omnibus Election Code (i.e., holding rallies or parades, making
speeches, etc.) can, thus, be logically and reasonably construed as for the purpose of
promoting his/her intended candidacy.

When the campaign period starts and said person 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. Also, conversely, if said person, for any reason, withdraws
his/her COC before the campaign period, then there is no point to view his/her acts prior
to said period as acts for the promotion of his/her election as a candidate. In the latter
case, there can be no premature campaigning as there is no candidate, whose
disqualification may be sought, to begin with.[42]

Third, in connection with the preceding discussion, the 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 the 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.

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.

As can be gleaned from the foregoing disquisition, harmony in the provisions of Sections
80 and 79 of the Omnibus Election Code, as well as Section 15 of Republic Act No.
8436, as amended, is not only very possible, but in fact desirable, necessary and
consistent with the legislative intent and policy of the law.

The laudable and exemplary intention behind the prohibition against premature
campaigning, as declared in Chavez v. Commission on Elections,[43] is to level the playing
field for candidates of public office, to equalize the situation between the popular or rich
candidates, on one hand, and lesser-known or poorer candidates, on the other, by
preventing the former from enjoying undue advantage in exposure and publicity on
account of their resources and popularity. The intention for prohibiting premature
campaigning, as explained in Chavez, could not have been significantly altered or
affected by Republic Act No. 8436, as amended by Republic Act No. 9369, the avowed
purpose of which is to carry-on the automation of the election system. Whether the
election would be held under the manual or the automated system, the need for
prohibiting premature campaigning - to level the playing field between the popular
or rich candidates, on one hand, and the lesser-known or poorer candidates, on the
other, by allowing them to campaign only within the same limited period - remains.

We cannot stress strongly enough that premature campaigning is a pernicious act that is
continuously threatening to undermine the conduct of fair and credible elections in our
country, no matter how great or small the acts constituting the same are. The choice as to
who among the candidates will the voting public bestow the privilege of holding public
office should not be swayed by the shrewd conduct, verging on bad faith, of some
individuals who are able to spend resources to promote their candidacies in advance of
the period slated for campaign activities.

Verily, the consequences provided for in Section 68[44] of the Omnibus Election Code for
the commission of the prohibited act of premature campaigning are severe: the candidate
who is declared guilty of committing the offense shall be disqualified from continuing as
a candidate, or, if he/she has been elected, from holding office. Not to mention that said
candidate also faces criminal prosecution for an election offense under Section 262 of the
same Code.

The Dissenting Opinion, therefore, should not be too quick to pronounce the
ineffectiveness or repeal of Section 80 of the Omnibus Election Code just because of
a change in the meaning of candidate by Section 15 of Republic Act No. 8436, as
amended, primarily, for administrative purposes. An interpretation should be avoided
under which a statute or provision being construed is defeated, or as otherwise expressed,
nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant,
meaningless, inoperative, or nugatory.[45] Indeed, not only will the prohibited act of
premature campaigning be officially decriminalized, the value and significance of having
a campaign period before the conduct of elections would also be utterly negated. Any
unscrupulous individual with the deepest of campaign war chests could then afford to
spend his/her resources to promote his/her candidacy well ahead of everyone else. Such is
the very evil that the law seeks to prevent. Our lawmakers could not have intended to
cause such an absurd situation.

The Dissenting Opinion attempts to brush aside our preceding arguments by contending
that there is no room for statutory construction in the present case since Section 15 of
Republic Act No. 8436,[46] as amended by Section 13 of Republic Act No. 9369,[47] is
crystal clear in its meaning. We disagree. There would only be no need for statutory
construction if there is a provision in Republic Act No. 8436 or Republic Act No. 9369
that explicitly states that there shall be no more premature campaigning. But absent the
same, our position herein, as well as that of the Dissenting Opinion, necessarily rest on
our respective construction of the legal provisions involved in this case.

Notably, while faulting us for resorting to statutory construction to resolve the instant
case, the Dissenting Opinion itself cites a rule of statutory construction, particularly, that
penal laws should be liberally construed in favor of the offender. The Dissenting Opinion
asserts that because of the third paragraph in Section 15 of Republic Act No. 8436, as
amended, the election offense described in Section 80 of the Omnibus Election Code is
practically impossible to commit at any time and that this flaw in the law, which defines a
criminal act, must be construed in favor of Penera, the offender in the instant case.

The application of the above rule is uncalled for. It was acknowledged in Lanot that a
disqualification case has two aspects: one, electoral;[48] the other, criminal.[49] The instant
case concerns only the electoral aspect of the disqualification case. Any discussion herein
on the matter of Penera's criminal liability for premature campaigning would be nothing
more than obiter dictum. More importantly, as heretofore already elaborated upon,
Section 15 of Republic Act No. 8436, as amended, did not expressly or even impliedly
repeal Section 80 of the Omnibus Election Code, and these two provisions, based on
legislative intent and policy, can be harmoniously interpreted and given effect. Thus,
there is no flaw created in the law, arising from Section 15 of Republic Act No. 8436, as
amended, which needed to be construed in Penera's favor.

The Dissenting Opinion further expresses the fear that pursuant to our "theory," all the
politicians with "infomercials" prior to the filing of their COCs would be subject to
disqualification, and this would involve practically all the prospective presidential
candidates who are now leading in the surveys.

This fear is utterly unfounded. It is the filing by the person of his/her COC through
which he/she explicitly declares his/her intention to run as a candidate in the coming
elections. It is such declaration which would color the subsequent acts of said person to
be election campaigning or partisan political activities as described under Section 79(b)
of the Omnibus Election Code. It bears to point out that, at this point, no politician
has yet submitted his/her COC. Also, the plain solution to this rather misplaced
apprehension is for the politicians themselves to adhere to the letter and intent of the law
and keep within the bounds of fair play in the pursuit of their candidacies. This would
mean that after filing their COCs, the prudent and proper course for them to take is to
wait for the designated start of the campaign period before they commence their election
campaign or partisan political activities. Indeed, such is the only way for them to avoid
disqualification on the ground of premature campaigning. It is not for us to carve out
exceptions to the law, much more to decree away the repeal thereof, in order to
accommodate any class of individuals, where no such exception or repeal is warranted.

Lastly, as we have observed at the beginning, Penera's Petition is essentially grounded on

questions of fact. Penera's defense against her disqualification, before the COMELEC
and this Court, rests on the arguments that she and her partymates did not actually hold a
motorcade; that their supporters spontaneously accompanied Penera and the other
candidates from her political party when they filed their certificates of candidacy; that the
alleged motorcade was actually the dispersal of the supporters of Penera and the other
candidates from her party as said supporters were dropped off at their respective
barangays; and that Andanar was not able to present competent, admissible, and
substantial evidence to prove that Penera committed premature campaigning. Penera
herself never raised the argument that she can no longer be disqualified for
premature campaigning under Section 80, in relation to Section 68, of the Omnibus
Election Code, since the said provisions have already been, in the words of the
Dissenting Opinion, rendered "inapplicable," "repealed," and "done away with" by
Section 15 of Republic Act No. 8436, as amended. This legal argument was wholly
raised by the Dissenting Opinion.

As a rule, a party who deliberately adopts a certain theory upon which the case is tried
and decided by the lower court will not be permitted to change theory on appeal. Points
of law, theories, issues, and arguments not brought to the attention of the lower court
need not be, and ordinarily will not be, considered by a reviewing court, as these cannot
be raised for the first time at such late stage. Basic considerations of due processunderlie
this rule.[50] If we do not allow and consider the change in theory of a case by a party on
appeal, should we not also refrain from motu proprio adopting a theory which none of the
parties even raised before us?

Nonetheless, the questions of fact raised by Penera and questions of law raised by the
Dissenting Opinion must all be resolved against Penera. Penera should be disqualified
from holding office as Mayor of Sta. Monica for having committed premature
campaigning when, right after she filed her COC, but still a day before the start of the
campaign period, she took part in a motorcade, which consisted of two jeepneys and ten
motorcycles laden with multi-colored balloons that went around several barangays of
Sta. Monica, and gave away candies to the crowd.

Succession
Despite the disqualification of Penera, we cannot grant Andanar's prayer to be allowed to
assume the position of Mayor of Sta. Monica. The well-established principle is that the
ineligibility of a candidate receiving majority votes does not entitle the candidate
receiving the next highest number of votes to be declared elected. [51]

In this case, the rules on succession under the Local Government Code shall apply, to
wit:

SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor,

Mayor, and Vice-Mayor. - If a permanent vacancy occurs in the office of
the xxx mayor, the x x x vice-mayor concerned shall become the x x x mayor.

xxxx

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 or is removed from
office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the
functions of his office. (Emphases ours.)

Considering Penera's disqualification from holding office as Mayor of Sta. Monica, the
proclaimed Vice-Mayor shall then succeed as Mayor.

WHEREFORE, premises considered, the instant Petition for Certiorari is

hereby DISMISSED. The Resolutions dated 24 July 2007 and 30 January 2008 of the
COMELEC Second Division and en banc, respectively, in SPA No. 07-224 are
hereby AFFIRMED. In view of the disqualification of petitioner Rosalinda A. Penera
from running for the office of Mayor of Sta. Monica, Surigao del Norte, and the resulting
permanent vacancy therein, it is hereby DECLARED that the proclaimed Vice-Mayor is
the rightful successor to said office. The Temporary Restraining Order issued on 4 March
2008 is hereby ORDERED lifted. Costs against the petitioner.

SO ORDERED.

EN BANC
[ G.R. No. 181613, November 25, 2009 ]
ROSALINDA A. PENERA, PETITIONER, COMMISSION ON ELECTIONS
AND EDGAR T. ANDANAR, RESPONDENTS.
 RESOLUTION

CARPIO, J.:

We grant Rosalinda A. Penera's (Penera) motion for reconsideration of this Court's

Decision of 11 September 2009 (Decision).

The assailed Decision dismissed Penera's 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.
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.
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.

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]
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.

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.

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.

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.

There is no dispute that Eusebio's 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.

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:

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.

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.

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.
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.

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:

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

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, he's
already a candidate, and there are many prohibited acts on the part of candidate.

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

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

THE CHAIRMAN (REP. TANJUATCO). If we don't provide that the filing of the
certificate will not bring about one's being a candidate.

SENATOR GONZALES. If that's a fact, the law cannot change a fact.

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.

xxx

SENATOR GONZALES. How about prohibition against campaigning or doing partisan

acts which apply immediately upon being a candidate?

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.

THE CHAIRMAN (REP. TANJUATCO). That's right.

THE ACTING CHAIRMAN (SEN. FERNAN). Okay.

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.

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)

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.

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 --

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)

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:

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
government-owned 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)

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 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.

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 --
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 --

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)

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.

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:

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 candidacy yet that person shall be considered a candidate, for purposes of
determining one's 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 citizen's 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]

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.

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)

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 layman's 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 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.

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

WHEREFORE, we GRANT petitioner Rosalinda A. Penera's 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.

SO ORDERED.

EN BANC
[ G.R. No. 201809, October 11, 2016 ]
H. SOHRIA PASAGI DIAMBRANG, PETITIONER, VS. COMMISSION ON
ELECTIONS AND H. HAMIM SARIP PATAD, RESPONDENTS.

DECISION

CARPIO, ACTING C.J.:**

The Case

Before the Court is a petition for certiorari[1] assailing the Resolution of the Commission
on Elections (COMELEC) En Banc promulgated on 30 January 2012 in SPC No. 10-079
(BRGY).

The Antecedent Facts

Petitioner H. Sohria Pasagi Diambrang (Diambrang) and respondent H. Hamim Sarip

Patad (Patad) were candidates for Punong Barangay of Barangay Kaludan, Nunungan,
Lanao del Norte in the 25 October 2010 Barangay Elections. Patad obtained 183 votes
while Diambrang obtained 78 votes. However, the Barangay Board of Canvassers (BBOC)
proclaimed Diambrang as the duly elected Punong Barangay based on the assumption
that Patad was disqualified for being a fugitive from justice. The BBOC’s assumption
was, in turn, based on the recommendation of the Provincial Election Supervisor that
was not yet final and executory because the COMELEC had not issued any ruling on the
matter.

Patad filed a petition to annul Diambrang’s proclamation. The case was docketed as SPC
No. 10-079 (BRGY). Neither Diambrang nor any of the members of the BBOC of
Barangay Kaludan, Nunungan, Lanao del Norte filed their comment on the petition.

The Decision of the COMELEC Second Division

In its Resolution[2] promulgated on 11 August 2011, the COMELEC Second Division

annulled Diambrang’s proclamation. The COMELEC Second Division ruled that the BBOC
of Barangay Kaludan, Nunungan, Lanao del Norte gravely abused its discretion
amounting to lack of jurisdiction in proclaiming Diambrang as the duly elected Punong
Barangay based solely on the recommendation of the Provincial Election Supervisor. The
COMELEC Second Division ruled that the members of the BBOC should have been aware
that the Provincial Election Supervisor, Joseph Hamilton M. Cuevas (Cuevas), merely
conducted a preliminary investigation of the case and his recommendation was subject
to review by the COMELEC. The COMELEC Second Division noted that the
recommendation of Cuevas to disqualify Patad was overturned by the COMELEC First
Division in its Resolution dated 14 January 2011 in SPA No. 10-144 (BRGY).

In addition, the COMELEC Second Division ruled that Diambrang, who only obtained the
second highest number of votes in the elections, could not be declared as the winning
candidate even if Patad was disqualified.

The dispositive portion of the Resolution reads:

WHEREFORE, premises considered, the petition is hereby GRANTED. The
proclamation of private respondent H. Sohria Diambrang is ANNULLED. A writ of
Preliminary Mandatory Injunction is issued commanding the BBOC of Barangay Kaludan,
Nunungan, Lanao del Norte to convene anew and to PROCLAIM petitioner H. Hamim
Sarip Patad as the winning Punong Barangay thereat. The Law Department is directed to
file the necessary charge against the members of the BBOC for arrogating unto
themselves the power to disqualify a candidate.

SO ORDERED.[3]
Diambrang filed a motion for reconsideration.

The Decision of the COMELEC En Banc

In its Resolution promulgated on 30 January 2012,[4] the COMELEC En Banc annulled the

proclamation of Diambrang and ordered the first ranked Barangay Kagawad of Barangay
Kaludan to succeed as the new Punong Barangay.

The COMELEC En Banc affirmed its 14 November 2011 Resolution overturning the

COMELEC First Division’s Resolution of 14 January 2011 in SPA No. 10-144 (BRGY). In its
14 November 2011 Resolution, the COMELEC En Banc granted the Petition to Disqualify
and/or Deny Due Course to the Certificate of Candidacy of Patad on the ground that he
is a fugitive from justice and thus disqualified from running for public office.

The COMELEC En Banc ruled that despite Patad’s disqualification, Diambrang, who

garnered the next highest number of votes, could not be proclaimed as the elected
Punong Barangay. Having lost the elections, Diambrang is not entitled to be declared
elected. Instead, the COMELEC En Banc ruled that the vacant position should be filled by
the first ranked Kagawad pursuant to Section 44(b) of the Local Government Code. [5]

The dispositive portion of the COMELEC En Banc’s Resolution reads:

WHEREFORE, premises considered, the Commission hereby RESOLVES to ANNUL
the proclamation of H. Sohria P. Diambrang. In view of the permanent vacancy in the
Office of the Punong Barangay, the proclaimed first ranked Barangay Kagawad of
Barangay Kaludan, Nunungan, Lanao del Norte is hereby ORDERED to succeed as the
new Punong Barangay pursuant to Section 44 of the Local Government Code.

SO ORDERED.[6]
Hence, Diambrang’s recourse to this Court.

The Issue

The only issue that we need to resolve here is whether Diambrang can be proclaimed as
the elected Punong Barangay in view of Patad’s disqualification.

The Ruling of this Court

This case has been rendered moot by the election of a new Punong Barangay of
Barangay Kaludan, Nunungan, Lanao del Norte during the 28 October 2013 Barangay
Elections.[7] The case had been overtaken by events due to Patad’s failure to file his
comment on the petition as well as the repeated failure of the Postmaster of Lanao del
Norte to respond to the Court’s query whether Patad received the Resolution requiring
him to file his comment. In a letter dated 18 January 2016, the Judicial Records
Office[8] requested for the assistance of the Postmaster General and CEO of Manila to
determine the date of delivery of the letter under Registry Receipt No. 9206 addressed
to Patad.[9] The request was forwarded to the Office of Area VIII Director of Central
Mindanao.[10] On 11 August 2016, Eduardo M. Juliata, Sr., LC/ACTG Postmaster of
Philippine Postal Corporation, Central Mindanao Area VIII issued a certification that the
registered letter was received in good order by SB Samsodin Guindo on 30 July 2012.
[11]
 In a Resolution dated 30 August 2016, the Court resolved to dispense with the filing
of Patad’s comment on the petition.[12]

We reiterate the Court’s prevailing rulings on the matter of disqualification of a

candidate and its effect on the second-placer in an election.

The assailed Decision of the COMELEC En Banc was promulgated on 30 January 2012.

The COMELEC En Banc ruled that Diambrang, as a second placer, could not be declared
as the duly-elected winner despite Patad’s disqualification.

On 9 October 2012, this Court promulgated its ruling in Jalosjos, Jr. v. Commission on
Elections[13] where the Court held:
Decisions of this Court holding that the second-placer cannot be proclaimed
winner if the first-placer is disqualified or declared ineligible should be limited to
situations where the certificate of candidacy of the first-placer was valid at the time of
filing but subsequently had to be cancelled because of a violation of law that took effect,
or a legal impediment that took effect, after the filing of the certificate of candidacy. If
the certificate of candidacy is void ab initio, then legally the person who filed such void
certificate of candidacy was never a candidate in the elections at any time. All votes for
such non-candidate are stray votes and should not be counted. Thus, such non-
candidate can never be a first-placer in the elections. If a certificate of candidacy void ab
initio is cancelled on the day, or before the day, of the election, prevailing jurisprudence
holds that all votes for that candidate are stray votes. If a certificate of candidacy
void ab initio is cancelled one day or more after the elections, all votes for such
candidate should also be stray votes because the certificate of candidacy is void from
the very beginning. This is the more equitable and logical approach on the effect of the
cancellation of a certificate of candidacy that is void ab initio. Otherwise, a certificate of
candidacy void ab initio can operate to defeat one or more valid certificates of
candidacy for the same position.[14]
In Aratea v. Commission on Elections,[15] we ruled that whether the certificate of
candidacy is cancelled before or after the elections is immaterial because a cancellation
on the ground that the candidate was ineligible or not qualified to run means he was
never a candidate from the very beginning.

In Maquiling v. Commission on Elections,[16] the Court revisited its previous ruling that

the second-placer cannot be proclaimed as a winner in an election contest. This Court
held in Maquiling:
We have ruled in the recent cases of Aratea v. COMELEC and Jalosjos v.
COMELEC that a void COC cannot produce any legal effect.

Thus, the votes cast in favor of the ineligible candidate are not considered at all in
determining the winner of an election.

Even when the votes for the ineligible candidate are disregarded, the will of the
electorate is still respected, and even more so. The votes cast in favor of an ineligible
candidate do not constitute the sole and total expression of the sovereign voice. The
votes cast in favor of eligible and legitimate candidates form part of that voice and must
also be respected.

As in any contest, elections are governed by rules that determine the qualifications and
disqualifications of those who are allowed to participate as players. When there are
participants who turn out to be ineligible, their victory is voided and the laurel is
awarded to the next in rank who does not possess any of the disqualifications nor lacks
any of the qualifications set in the rules to be eligible as candidates.

There is no need to apply the rule cited in Labo v. COMELEC that when the voters are
well aware within the realm of notoriety of a candidate's disqualification and still cast
their votes in favor said candidate, then the eligible candidate obtaining the next higher
number of votes may be deemed elected. That rule is also a mere obiter that further
complicated the rules affecting qualified candidates who placed second to ineligible
ones.
The electorate's awareness of the candidate's disqualification is not a prerequisite for
the disqualification to attach to the candidate. The very existence of a disqualifying
circumstance makes the candidate ineligible. Knowledge by the electorate of a
candidate's disqualification is not necessary before a qualified candidate who placed
second to a disqualified one can be proclaimed as the winner. The second-placer in the
vote count is actually the first-placer among the qualified candidates.

That the disqualified candidate has already been proclaimed and has assumed office is
of no moment. The subsequent disqualification based on a substantive ground that
existed prior to the filing of the certificate of candidacy voids not only the COC but also
the proclamation.[17]
Clearly, the prevailing ruling is that if the certificate of candidacy is void ab initio,
the candidate is not considered a candidate from the very beginning even if his
certificate of candidacy was cancelled after the elections.

Patad's disqualification arose from his being a fugitive from justice. It does not matter
that the disqualification case against him was finally decided by the COMELEC En
Banc only on 14 November 2011. Patad's certificate of candidacy was void ab initio. As
such, Diambrang, being the first-placer among the qualified candidates, should have
been proclaimed as the dulyelected Punong Barangay of Barangay Kaludan, Nunungan,
Lanao del Norte. However, due to supervening events as we previously discussed,
Diambrang can no longer hold office.

WHEREFORE, we DISMISS the petition for being moot and academic.

SO ORDERED.

EN BANC
[ G.R. NO. 166046, March 23, 2006 ]
MARGARITO C. SULIGUIN, PETITIONER, VS. THE COMMISSION ON
ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF
NAGCARLAN, LAGUNA, AND PROMULGATED: ECELSON C. SUMAGUE,
RESPONDENTS.
 DECISION

CALLEJO, SR., J.:

This is a Petition for Certiorari under Rule 65 of the Revised Rules of Court

seeking to reverse the Resolution [1] of the Commission on Elections (Comelec) En
Banc in SPC No. 04-209 dated November 18, 2004 which denied petitioner Margarito
Suliguin's motion for reconsideration of the  July 21, 2004 Resolution [2] of the Comelec's
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 Letter [4] 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 petitioner's 6,605 votes.

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.
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.

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

On July 21, 2004, the Comelec (First Division) issued a Resolution [6] 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:
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]
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
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.

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

The petition is bereft of merit.

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.

Sections 3 [12] and 4 [13] 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]

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

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."

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 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.

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 candidate's 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 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 Comelec's reliance in the ruling of this Court in Bince, Jr.
v. Commission on Elections [21] is misplaced since, unlike the present petition, petitioner
therein was an affected candidate who filed his petition on time.

The argument of petitioner does not persuade.  The Court, in Bince, Jr. v. Commission
on Elections,[22] declared that:
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, we categorically declared
that:
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:
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. Macalañang, 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. 818-819).  (Italics ours)
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:
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).
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]
The Court made a similar pronouncement in Tatlonghari v. Commission on
Elections,[24] to wit:
The argument is devoid of merit.  For one thing, records indicate that
respondent's 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, respondent's proclamation was flawed right from the very 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:
"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 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.

x x x

"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.

x x x

"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]
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
candidate's 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]

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]

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

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.

SO ORDERED.

EN BANC
[ G.R. No. 184801, July 30, 2009 ]
JONAS TAGUIAM, PETITIONER, VS. COMMISSION ON ELECTIONS AND
ANTHONY C. TUDDAO, RESPONDENTS.

DECISION
YNARES-SANTIAGO, J.:

This petition for certiorari with prayer for issuance of a temporary restraining

order and writ of preliminary injunction [1] assails the December 20, 2007 Resolution [2] of
the Second Division of the Commission on Elections (COMELEC) in SPC No. 07-171 which
granted private respondent Anthony C. Tuddao's Petition for Correction of Manifest
Error and Annulment of Proclamation of petitioner Jonas Taguiam as the 12 th winning
candidate for the Sangguniang Panglungsod of Tuguegarao City, Cagayan. Also assailed
is the October 9, 2008 Resolution[3] of the COMELEC En Banc denying petitioner's
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 votes [6] 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
precincts[7] 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 respondent's 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]
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.

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 respondent's 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 respondent's allegations duly
substantiated with material evidence and confirmed the following:

A. With regard to the votes of private respondent:

Precinct No. SOVP ER No. Votes Votes in Votes

No. in SOVP ER Affected
1 69A/69B 15327 96026 27 27 0
79
2 87A/87B 10543 96026 13 13 0
99
3 192A/192B 10531 96028 20 19 -1
01
4 326A 10532 96029 43 53 +10
21
TOTAL +9
B. With regard to the votes of petitioner:

Precinct No. SOVP ER No. Votes Votes Votes

No. in SOVP in ER Affected
1 35A/36A 10543 96026 40 33 -7
47
2 61A/63A 10539 96026 55 50 -5
72
3 264A/265A 10528 96028 39 29 -10
71
4 324A/325A 10533 96029 62 61 -1
20
5 328B 10527 96029 33 32 -1
24
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 12 th 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 Certiorari[11] 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 respondent's petition for correction of manifest errors in the
Election Returns and Statement of Votes despite its late filing.

Petitioner avers that private respondent's 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:

x x x x

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 offices" to
attain justice and the noble purpose of determining the true will of the electorate. [12]

In Jaramilla v. Commission on Elections [13] and Dela Llana v. Commission on Elections,

[14]
 the Court affirmed the COMELEC's 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 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 12 th 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 respondent's 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 COMELEC's 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 certiorari proceeding, 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.

EN BANC
[ G.R. No. 126669, April 27, 1998 ]
ERNESTO M. PUNZALAN, PETITIONER, VS. COMMISSION ON
ELECTIONS AND FERDINAND D. MENESES, RESPONDENTS.

[G.R. NO. 127900.  APRIL 27, 1998]

FERDINAND D. MENESES, PETITIONER, VS. COMMISSION ON

ELECTIONS AND   ERNESTO M. PUNZALAN, RESPONDENTS.
 [G.R. NO. 128800.  APRIL 27, 1998]

ERNESTO M. PUNZALAN, PETITIONER, VS. COMMISSION ON

ELECTIONS AND  FERDINAND D. MENESES, RESPONDENTS.

[G.R. NO. 132435.  APRIL 27, 1998]

ERNESTO M. PUNZALAN, PETITIONER, VS. COMMISSION ON

ELECTIONS AND FERDINAND D. MENESES, RESPONDENTS.

DECISION

KAPUNAN, J.:

Danilo Manalastas, Ferdinand Meneses and Ernesto Punzalan were among the four (4)
candidates for mayor of the municipality of Mexico, Pampanga during the May 8, 1995
elections.

On May 24, 1995, the Municipal Board of Canvassers (MBC) proclaimed Ferdinand
Meneses as the duly elected mayor, having garnered a total of 10,301 votes against
Danilo Manalastas’ 9,317 votes and Ernesto Punzalan’s 8,612 votes.

On May 30, 1995, Danilo Manalastas filed an election protest docketed as Election
Case No. E-005-95 before the Regional Trial Court of San Fernando, Pampanga,
challenging the results of the elections in the municipality’s forty-seven (47) precincts.
[1]
 In due time, Ferdinand Meneses filed his answer with counter protest impugning the
results in twenty-one (21) precincts[2] of the 47 protested by Manalastas.

On June 2, 1995, Ernesto Punzalan filed his own election protest docketed as Election
Case No. E-006-95, also before the RTC in San Fernando, Pampanga, questioning the
results of the elections in one hundred and fifty seven (157) precincts.[3] Meneses, on
his part, filed an answer with counter-protest with respect to ninety-six (96) precincts [4] of
the 157 protested by Punzalan.

Since the two (2) election protests involved the same parties and subject matter, they
were ordered consolidated and were jointly tried by the RTC of San Fernando,
Pampanga, Branch 44.

Succinctly, the election contests sought the nullification of the election of Meneses
allegedly due to massive fraud, irregularities and other illegal electoral practices during
the registration and the voting as well as during the counting of votes such as:
 a.       the registration of flying voters;
b.       the preparation of ballots by persons other than the registered
electors concerned;
c.        the use of electoral fraudulent practice such as the ‘lansadera;’
d.       false reading of votes for the petitioner/protestant;
e.       the counting of illegal and marked ballots and stray votes as votes
for the respondent/protestee;
f.         switching of ballots in favor of respondent/protestee;
g.       tampering with the ballots for the petitioner/protestant after having
been cast, so as to annul the same or to substitute therefor illegal votes for
respondent/protestee;
h.        the adding of more votes to those actually counted for the
respondent/protestee and the reducing of the votes actually counted for the
petitioner/protestant in the preparation of the corresponding election return;
i.         groups of two or more ballots for the respondent/protestee were
written each group, by only one (1) person;
j.         one (1) ballot for the respondent/protestee written by two or more
persons.[5]

By way of counter-protest to the two (2) election protests, Meneses alleged that he, too,
was a victim of massive fraud and illegal electoral practices such as:

a.       The preparation of the ballots by persons other than the registered

electors concerned;
b.       The use of electoral fraudulent practice known as the ‘lansadera;’
c.        False reading of votes for the protestee;
d.       The counting of illegal and marked ballots and stray votes for the
protestant;
e.       Switching of ballots in favor of of protestant;
f.         Tampering with the ballots for the Protestee after having been cast,
so as to annul the same or to substitute therefor illegal votes for the protestant;
g.       The adding of more votes to those actually counted for the
protestant and the reducing of the votes actually counted for the protestee in the
preparation of the corresponding election returns;
h.        Group of two (2) or more ballots for protestant were written, each
group, by only one (1) person;
i.         One (1) ballot for the protestant written by two (2) or more persons.[6]
Finding the protests and counter-protests sufficient in form and substance, the trial court
ordered a revision of the ballots. The result of said physical count coincided with the
figures reflected in the election returns, thus: Meneses - 10,301 votes; Manalastas -
9,317 votes; and Punzalan - 8,612 votes.

After hearing the election protests, the trial court rendered judgment on September 23,
1996 with the following findings, viz: that massive fraud, illegal electoral practices and
serious anomalies marred the May 8, 1995 elections; that ballots, election returns and
tally sheets pertaining to Precinct Nos. 8, 20, 41, 53, 68, 68-A and 70 “disappeared
under mysterious circumstances;” and that filled-up ballots with undetached lower stubs
and groups of ballots with stubs cut out with scissors were found inside ballot boxes.
Because of these irregularities, the trial court was constrained to examine the contested
ballots and the handwritings appearing thereon and came up with the declaration that
Punzalan was the winner in the elections. The dispositive portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered:

1. In EPC No. E-005-95 – declaring Ferdinand D. Meneses as having garnered

7,719 votes or 33 votes more than the 7,686 votes received by Danilo D.
Manalastas and dismissing the instant protest.

2. In EPC No. E-006-95 – declaring Ernesto M. Punzalan as the duly elected

Municipal Mayor of Mexico, Pampanga. Protestee Ferdinand D. Meneses is
hereby ordered to vacate his position and to cease and desist from further
discharging the duties and functions officially vested in the Office of the Municipal
Mayor of Mexico, Pampanga which now and henceforth, unless otherwise
disqualified by law, are conferred unto and in favor of Ernesto M. Punzalan, who
is hereby ordered to act, perform and discharge the duties, functions and
responsibilities and all incidents appertaining to and in connection with the Office
of the Municipal Mayor of Mexico, Pampanga, immediately and after he shall
have taken his oath of office as such.

3. The counterclaims interposed by Ferdinand D. Meneses in both cases are

hereby dismissed.

The authorities concerned are hereby ordered to enforce, implement and assist
in the enforcement and implementation of this Decision immediately after Ernesto
M. Punzalan shall have had taken his oath of office.

As soon as this Decision becomes final, let notice thereof be sent to the
Commission on Elections, Department of Interior and Local Governments and
Commission on Audit.

Without pronouncement as to costs.

 SO ORDERED.[7]

Immediately thereafter, Meneses filed a notice of appeal from the aforesaid decision
declaring Punzalan as the duly elected mayor of Mexico, Pampanga. The case was
docketed as EAC No. 48-96 by the COMELEC. Manalastas did not appeal from the said
decision.

On October 1, 1996, Punzalan filed a motion for execution pending appeal with the RTC
in San Fernando, Pampanga. On the same day, the COMELEC issued an order
directing the RTC to elevate the entire records of the case.

On October 10, 1996, the RTC issued an order which granted Punzalan’s motion for
execution pending appeal. On the same date, Meneses filed before the COMELEC a
petition for certiorari and prohibition with prayer for the issuance of temporary
restraining order (TRO) and/or preliminary injunction, docketed as SPR No. 47-96,
seeking the nullification of the RTC’s order of execution pending appeal.

On October 11, 1996, the COMELEC issued a TRO enjoining the RTC from enforcing
its Order dated October 10, 1996.

On October 22, 1996, Meneses filed with the COMELEC a motion for contempt against
Punzalan, alleging that the latter was holding the office of mayor of Mexico, Pampanga
in violation of the TRO issued by the COMELEC.

On October 28, 1996, Punzalan filed before this Court a petition for certiorari, prohibition
and declaratory relief with application for a writ of preliminary injunction and temporary
restraining order, docketed as G.R. No. 126669, to set aside the COMELEC’s TRO
issued on October 11, 1996.

On November 7, 1996, the COMELEC issued two (2) orders, one which submitted for
resolution Meneses’ application for a writ of preliminary injunction and motion for
contempt and another which granted a writ of preliminary injunction enjoining the
enforcement of the RTC’s order of execution dated October 10, 1996.

On November 12, 1996, this Court issued a TRO directing the COMELEC to cease and
desist from enforcing the TRO it issued on October 11, 1996 in SPR No. 47-96.

On November 21, 1996, Punzalan filed before this Court a supplement to the petition
seeking to declare as void the COMELEC’s preliminary prohibitory and mandatory
injunction and to declare Meneses in contempt of court.

On January 9, 1997, the COMELEC issued an order which dispositively read as follows:

Considering that the 7 November 1996 preliminary injunction of the Commission was
pursuant to its 11 October 1996 temporary restraining order, which was specifically
covered by the Supreme Court’s temporary restraining order, the Commission will
respect and abide by the order of the Supreme Court. Considering, however, that the
temporary restraining order of the Supreme Court relates only to the implementation of
the order of execution of judgment pending appeal of the Regional Trial Court, the
Commission finds no legal impediment to proceed with the resolution of the main action
for certiorari pending before it and shall act accordingly.

On January 30, 1997, the COMELEC issued an order stating that: 1) it need not act on
Meneses’ motion reiterating the prayer to suspend pendente lite the implementation of
the Order dated January 9, 1997, and 2) the Order dated January 9, 1997 shall take
effect thirty (30) days from notice thereof to the parties.

On February 10, 1997, Meneses filed with this Court a petition for certiorari with prayer
for the issuance of a temporary restraining order and/or writ of preliminary injunction,
docketed as G.R. No. 127900, which sought to set aside the COMELEC Orders dated
January 9 and 30, 1997.

On April 24, 1997, the COMELEC issued a resolution granting the petition of Meneses
to set aside the RTC’s order of execution pending appeal and allowing Meneses to
continue to discharge the duties and functions of municipal mayor of Mexico,
Pampanga, without prejudice to the resolution of his pending appeal from the RTC’s
decision.

On April 28, 1997, Punzalan filed with this Court a petition for certiorari, docketed as
G.R. No. 128000, which sought to nullify the COMELEC’s Resolution dated April 24,
1997.

On December 8, 1997, the COMELEC promulgated a resolution in EAC No. 48-96

setting aside the trial court’s decision and affirming the proclamation of Meneses by the
MBC as the duly elected mayor of Mexico, Pampanga, thusly:

WHEREFORE, premises considered, the decision of the court a quo in Election Protest
Case No. E-006-95 declaring protestant-appellee Ernesto M. Punzalan as the duly
elected Mayor of the Municipality of Mexico, Pampanga in the May 8, 1995 local
elections is hereby ANNULLED and SET-ASIDE.

ACCORDINGLY, the Commission [First Division] hereby AFFIRMS the proclamation of

protestee-appellant Ferdinand D. Meneses by the Municipal Board of Canvassers as
the duly elected Mayor of Mexico, Pampanga but with the modification that protestee-
appellant received only 9,864 votes, or a deduction of 437 votes from his original 10,301
votes. Further, this Commission [First Division] hereby COMMANDS protestant-
appellee Ernesto M. Punzalan to RELINQUISH his post in favor of protestee-appellant
Ferdinand Meneses immediately upon finality of this Resolution. [8]

Punzalan filed a motion for reconsideration of the aforesaid resolution. In its Resolution
dated February 13, 1998, the COMELEC denied said motion for lack of merit.
Hence, this petition for certiorari with preliminary injunction and a prayer for the
issuance of a temporary restraining order, filed on February 16, 1998 and docketed as
G.R. No. 132435, to set aside the COMELEC’s resolutions of December 8, 1997 and
February 13, 1998. Thus, petitioner alleges:

1.       that the decision (resolution) in question is tainted with grave abuse

of discretion amounting to lack of jurisdiction;
2.       that it was rendered in disregard of law and the evidence;
3.       that the decision (resolution) in question is a ‘prejudged decision;’
and
4.       that the decision (resolution) in question is the culmination of a
series of acts of the public respondent favoring the private respondent.[9]

First. Punzalan maintains that the COMELEC acted with grave abuse of discretion in
declaring as valid the ballots credited to Meneses which did not bear the signature of
the BEI chairman at the back thereof, invoking the ruling of this Court in  Bautista v.
Castro[10] wherein it was held that the absence of the signature of the BEI chairman in
the ballot given to a voter as required by law and the rules as proof of the authenticity of
said ballot is fatal.

This contention is not meritorious.

While Section 24[11] of Republic Act No. 7166, otherwise known as “An Act Providing
For Synchronized National and Local Elections and For Electoral Reforms,” requires the
BEI chairman to affix his signature at the back of the ballot, the mere failure to do so
does not invalidate the same although it may constitute an election offense imputable to
said BEI chairman. Nowhere in said provision does it state that the votes contained
therein shall be nullified. It is a well-settled rule that the failure of the BEI chairman or
any of the members of the board to comply with their mandated administrative
responsibility, i.e., signing, authenticating and thumbmarking of ballots, should not
penalize the voter with disenfranchisement, thereby frustrating the will of the people. [12]

In the recent case of Marcelino C. Libanan v. House of Representatives Electoral

Tribunal and Jose T. Ramirez,[13] this Court affirmed the ruling of the Tribunal in Libanan
v. Ramirez[14] to the effect that a ballot without BEI chairman’s signature at the back is
valid and not spurious, provided that it bears any one of these other authenticating
marks, to wit: (a) the COMELEC watermark; and (b) in those cases where the
COMELEC watermarks are blurred or not readily apparent, the presence of red and
blue fibers in the ballots. The Court explained in this wise:

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 or blue fibers in the ballots. It is only when
none of these marks appears extant that the ballot can be considered spurious
and subject to rejection.

Similarly, Section 211 of Batas Pambansa Blg. 881, otherwise known as the “Omnibus
Election Code of the Philippines” provides that in the reading and appreciation of
ballots, every ballot shall be presumed to be valid unless there is a clear and good
reason to justify its rejection. Certainly, the inefficiency of an election officer in failing to
affix his signature at the back of the ballot does not constitute as a good and clear
reason to justify the rejection of a ballot.

Second. Punzalan contends that the COMELEC committed grave abuse of discretion in
declaring valid (a) the ballots wherein the signatures of the BEI chairmen were different
from their respective signatures appearing on several COMELEC documents, (b) those
group of ballots allegedly written by one (1) hand and (c) a number of single ballots
written by two (2) persons. He argues that the trial court’s findings on the authenticity of
said handwritings must prevail over the findings of the COMELEC because: 1) the
finding of the Regional Trial Court was based first on the findings of the revisors with the
assistance of an expert witness in the person of Atty. Desiderio Pagui; (2) the finding of
the Regional Trial Court was arrived at after an adversarial proceeding where both
parties were represented by their lawyers and the expert witness was cross-examined;
and (3) on the other hand, the findings of the public respondent were made unilaterally,
without any hearing. and without the presence of the lawyers of the parties and of the
parties themselves.[15]

These arguments fail to persuade us.

The appreciation of the contested ballots and election documents involves a question of
fact best left to the determination of the COMELEC, a specialized agency tasked with
the supervision of elections all over the country. It is the constitutional commission
vested with the exclusive original jurisdiction over election contests involving regional,
provincial and city officials, as well as appellate jurisdiction over election protests
involving elective municipal and barangay officials. Consequently, in the absence of
grave abuse of discretion or any jurisdictional infirmity or error of law, the factual
findings, conclusions, rulings and decisions rendered by the said Commission on
matters falling within its competence shall not be interfered with by this Court. [16]

Anent Punzalan’s assertion that the trial court’s finding which was arrived at after an
adversarial proceeding wherein an expert witness testified and was cross-examined,
should not be interfered with by the COMELEC whose finding was arrived at without the
benefit of a hearing or the aid of an expert, it is axiomatic that the COMELEC need not
conduct an adversarial proceeding or a hearing to determine the authenticity of ballots
or the handwriting found thereon. Neither does it need to solicit the help of handwriting
experts in examining or comparing the handwriting. [17] In fact, even evidence aliunde is
not necessary to enable the Commission to determine the authenticity of the ballots and
the genuineness of the handwriting on the ballots as an examination of the ballots
themselves is already sufficient.[18]

In Erni v. COMELEC,[19] we held that:

x x x. With respect to the contention that a technical examination of the

ballots should have been ordered to determine whether they had been written by
two or more persons, or in groups written by only one hand, we hold that the
Commission en banc did not commit an abuse of its discretion in denying
petitioner-protestee’s request. The rule is settled that the Commission itself can
make the determination without the need of calling handwriting experts.
Nor was evidence aliunde necessary to enable the Commission to
determine the genuineness of the handwriting on the ballots, an examination of
the ballots themselves being sufficient. x x. x..[20]

In Bocobo v. COMELEC,[21] we likewise ruled that:

x x x. Handwriting experts, while probably useful, are not indispensable in

examining or comparing handwriting; this can be done by the COMELEC itself.
We have ruled that evidence aliunde is not allowed to prove that a ballot is
marked, an inspection of the ballot itself being sufficient (Penson v. Parungao, 52
Phil. 718). x x x.[22]

In the case at bar, the opinion of Atty. Pagui, who was claimed to be a handwriting
expert, was not binding upon the COMELEC especially so where the question involved
the mere similarity or dissimilarity of handwritings which could be determined by a
comparison of existing signatures or handwriting. [23] Section 22 of Rule 132 of the
Revised Rules on Evidence explicitly authorizes the court, by itself, to make a
comparison of the disputed handwriting “with writings admitted or treated as genuine by
the party against whom the evidence is offered, or proved to be genuine to the
satisfaction of the judge.”

In Lorenzo v. Diaz,[24] this Court enumerated the tools to aid one in the examination of
handwriting, thus:

The authenticity of a questioned signature cannot be determined solely upon its general
characteristics, similarities or dissimilarities with the genuine signature. Dissimilarities as
regards spontaneity, rhythm , presence of the pen, loops in the strokes, signs of stops,
shades, etc., that may be found between the questioned signature and the genuine one
are not decisive on the question of the former’s authenticity. The result of examination
of questioned handwriting, even with the benefit of aid of experts and scientific
instruments, is, at best, inconclusive. There are other factors that must be taken into
consideration. The position of the writer, the condition of the surface on which the paper
where the questioned signature is written is placed, his state of mind, feelings and
nerves, and the kind of pen and/or paper used, played an important role on the general
appearance of the signature. Unless, therefore, there is, in a given case, absolute
absence, or manifest dearth, or direct or circumstantial competent evidence of the
character of a questioned handwriting, much weight should not be given to
characteristic similarities, or dissimilarities, between the questioned handwriting and an
authentic one.[25]

Indeed, the haste and pressure, the rush and excitement permeating the surroundings
of polling places could certainly affect the handwriting of both the voters and the election
officers manning the said precincts. The volume of work to be done and the numerous
documents to be filled up and signed must likewise be considered. Verily, minor and
insignificant variations in handwriting must be perceived as indicia of genuineness
rather than of falsity.

In Go Fay v. Bank of the Philippine Islands,[26] this Court held that carelessness,
spontaneity, unpremeditation, and speed in signing are evidence of genuineness.
In U.S. v. Kosel,[27] it was ruled that dissimilarity in certain letters in a handwriting may
be attributed to the mental and physical condition of the signer and his position when he
signed. Grief, anger, vexation, stimulant, pressure and weather have some influence in
one’s writing. Because of these, it is an accepted fact that it is very rare that two (2)
specimens of a person’s signature are exactly alike.

On the issue of the genuineness of the handwriting on the ballots, it is observed that the
specimens examined by Atty. Desiderio A. Pagui, presented by Punzalan as an expert
witness, were mere certified true copies of the ballots and documents concerned.
[28]
 This fact raised a cloud of doubt and made the findings suspect. Consequently, the
examination of the ballots themselves by the COMELEC should not be brushed aside.
Section 23, Rule 132 of the Rules of Court explicitly authorizes the court (the
COMELEC in this case) to make itself the comparison of the disputed handwriting “with
writings admitted as genuine by the party whom the evidence is offered.”

Expert opinions are not ordinarily conclusive in the sense that they must be accepted as
true on the subject of their testimony, but are generally regarded as purely advisory in
character; the courts may place whatever weight they choose upon such testimony and
may reject it, if they find that it is consistent with the facts in the case or otherwise
unreasonable.[29]

In the same manner, whether or not certain ballots were marked had been addressed
by the COMELEC by personally and actually examining the ballots themselves. We find
no compelling reasons to disturb its findings.
In closing, we would like to stress a well-founded rule ensconced in our jurisprudence
that laws and statutes governing election contests especially 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. [30] 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.

Prescinding from the foregoing, we find that respondent COMELEC did not act with
grave abuse of discretion in G.R. No. 132435. The petitions in G.R. Nos.  126669,
127900 and 128800 are rendered moot by the preceding disquisition.

WHEREFORE, premises considered, the petition in G.R. No. 132435 is hereby

DISMISSED. The status quo order issued by this Court on February 24, 1998
is LIFTED. The petitions in G.R. Nos. 126669, 127900 and 128800 are rendered moot
and academic by the foregoing disquisition.

Further, this decision is immediately executory in view of the shortness of time between
now and the next elections and to prevent the case from becoming moot and academic.

SO ORDERED.

FIRST DIVISION
[ G.R. No. 61260, February 17, 1992 ]
SERGIO BAUTISTA, PETITIONER, VS. HON. JOSE P. CASTRO, IN HIS
CAPACITY AS PRESIDING JUDGE OF BRANCH IX (QUEZON CITY,
COURT OF FIRST INSTANCE OF RIZAL, AND ROBERTO MIGUEL,
RESPONDENTS.

DECISION

MEDIALDEA, J.:

This petition seeks the reversal of the decision of respondent Court of First Instance (now
Regional Trial Court) of Rizal, Branch 9, Quezon City rendered in an appealed election
case and which decision proclaimed herein private respondent Roberto Miguel as the
duly elected Barangay Captain of Barangay Teachers Village East, Quezon City, in the
Barangay Elections held on May 17, 1982, with a plurality of twenty-four (24) votes over
herein petitioner Sergio Bautista.
Both the petitioner Sergio Bautista and private respondent Roberto Miguel were
candidates for the office above mentioned. After canvass, petitioner Bautista was
proclaimed the winner by the Barangay Board of Canvassers on May 17, 1982 with a
plurality of two (2) votes.

On May 25, 1982, Roberto Miguel filed a protest before the City Court of Quezon City,
(docketed as Election Case No. 82-408) on the ground of fraud and illegal acts or
practices allegedly committed by Bautista. The latter filed an answer but filed no counter-
protest.

It appears that the results of the election in all the four (4) voting centers in Bgy. Teachers
Village East, Quezon City were contested. A revision and recounting of the ballots was
conducted which resulted in a tie. The votes obtained by each of the protagonists were as
follows:

“1. In Voting Center No. 519:

MIGUEL         =          126 votes
BAUTISTA =          180 votes
Protestant-appellant contested the ruling of the lower Court on the following
ballots: Exhs. a, b, c, d, e, f, g, h, i, j, k, l, m, n, and o.
Protestee-appellee contested the ruling of the lower Court on the following
ballots: Exhs. 1, 2, 3, 4 and 5.
“2. In Voting Center No. 520:
MIGUEL         =          152 votes
BAUTISTA     =          122 votes
Protestant-appellant contested the ruling of the lower Court on the following
ballots: Exhs. P, Q and R.
“3. In Voting Center No. 521:
MIGUEL         =          150 votes
BAUTISTA     =          136 votes
Protestant-appellant contested the ruling of the lower Court on the following
ballots: Exhs. 6 and 7.
“4. In Voting Center No. 522
MIGUEL         =          222 votes
BAUTISTA     = 212 votes
Protestant-appellant contested the ruling of the lower Court on the following
ballots: Exhs. AA, BB, BB-1, BB-2 and CC.
 Protestee-appellee contested the ruling of the lower court on the following
ballots: Exhs. 8, 9, 9-a, 10, 10-a, 11, 11-a, 12, 12-a, 13, 14, 14-a, 15, 15-a, 16 and 16-a.
“5. Total Votes in all Voting Centers Nos. 519, 520, 521 and 522:
MIGUEL         =          650
BAUTISTA     =          650” (pp. 11-12, Rollo)

The trial court rendered a decision, the dispositive portion of which reads:

“ACCORDINGLY, Roberto Miguel is hereby declared to have received the same

number of votes as the protestee Sergio Bautista for the position of Bgy. Captain of Bgy.
Teachers Village East, Quezon City.” (p. 12, Rollo)

From this decision of the city court, protestant Roberto Miguel filed an appeal to the
Court of First Instance of Rizal.* On July 29, 1982, judgment was rendered on the appeal
which, as stated in the first portion of this decision, declared protestant Roberto Miguel
the duly elected Barangay Captain of Bgy. Teachers Village East, Quezon City and
setting aside as null and void the proclamation of protestee Sergio Bautista. The
dispositive portion of the decision reads:

“WHEREFORE, judgment is hereby rendered declaring and proclaiming

protestant-appellant ROBERTO MIGUEL as the duly elected Barangay Captain of
Barangay Teachers Village East, Quezon City, in the Barangay elections held on May 17,
1982 with a plurality of twenty-four (24) votes over and above his protagonist
protestee-appellee SERGIO BAUTISTA; setting aside as null and void the proclamation of
protestee-appellee as the elected Barangay Captain made by the Barangay Board of
Canvassers on May 17, 1982; sentencing protestee-appellee to pay protestant-appellant
the costs and expenses that the latter has incurred in this protest, in accordance with
Sec. 7 of COMELEC Resolution no. 1566, to wit:
P 25.00 for filing and research fee for petition of protest;
2,500.00 for cash deposit for expenses for revision of ballots;
25.00 for appellant docket and research fee;
50.00 for appeal bond deposit;
P2,600.00 Total
“The Clerk of Court is hereby directed to furnish copies of this Decision to the
Commission on Elections, the Ministry of Local Governments, the Commission on Audit,
and the Secretaries of the Sangguniang Bayan and Sangguniang Barangay, in accordance
with Sec. 15 of Comelec Resolution No. 1566.”
“SO ORDERED.” (pp. 87-88, Rollo)
Petitioner Sergio Bautista filed the instant petition for review by certiorari on August 13,
1982 on the following questions of law:

1) Whether or not the supposed opinion of a person, who was brought by private
respondent but who was never presented as a witness, is competent and admissible
evidence to support the appellate court’s (CFI) conclusion that no less than eighteen (18)
votes cast in favor of your petitioner were written by one and the same person.

2) Whether or not a ballot which does not contain the signature of the poll chairman be
considered a valid ballot.

3) Whether or not respondent judge acted correctly in its appreciation of the contested
ballots (Exhibits “Z,” “Z-1,” “S,” “5,” “6,” “7.”

Considering that the term for the contested office had expired on June 7, 1988 , this
[1]

petition has become moot and academic. However, this case had already been submitted
for decision as early as December 19, 1984, prior to the expiration of the contested office.
Hence, We deem it proper to resolve this case on the merits and determine the true
winner of that elections.

Anent the first question, petitioner Bautista questions the reliance by respondent court on
the opinion of one Desiderio A. Pagui, who was never presented and qualified as an
expert witness. The report of Pagui allegedly appeared only in the records of the case on
file with the CFI which was attached in the Memorandum for Protestant Miguel.

The ballots involved in this objection of petitioner are exhibits “B” to “0” which all
pertained to voting center No. 519 and Exhibits “T,” “T-1,” “U,” “U-1,” “V” and “V-1”
from voting center No. 521. Respondent court ruled:

“b) Exhs. ‘B, C, D, E, F, G, H, I, J, K, L, M, N and O were counted by the lower court
for BAUTISTA, over the objection of protestant-appellant that these ballots were written
by a single hand. These ballots and the writings therein contained were the subject of
QUESTIONED HANDWRITINGS EXAMINATIONS and PDIL REPORT NO. 09-682 of Atty.
Desiderio A. Pagui, Examiner of Questioned Documents (Ret. Chief Document Examiner,
NBI), who was allowed by the lower court to assist it in the appreciation of ballots
contested by either party as having been written by a single hand and to take
photographs of the questioned ballots, his report and photographs having been
submitted by protestant-appellant to this Court accompanying his memorandum. The
pertinent portions of the FINDINGS in the said report read as follows:
‘Comparative examinations between and among the various letter designs, their structural
constructions and other characteristics appearing in Exhibits ‘B’ to ‘O’ inclusive, ‘T’, ‘T-
1’, ‘U’, ‘U-1,’ ‘V’ and ‘V-1’, reveal the existence of significant identifying handwriting
characteristics, more particularly in -

‘1. general style of writings;

‘2. size and proportion (sic) of letter designs; base and height alignments; and
relationship between adjacent letters;

‘3. lateral spacing; and initial and terminal strokes;

‘4. structural constructions and more perplexed elements embedded in the

structures of letter forms; and such characteristics are exemplified in the
following words/names: x x x; and the scientific evaluation of the
aforementioned writing characteristics includes the consideration of the
idiosyncrasies of natural variation as shown in the numerous similar letter
forms, although at some instances, the writer succeeded in having changed
the entire letter designs of certain letters (at different style), but somehow
certain significant writing characteristics reappeared in the various letters
during the process of writing, thus be able to connect one writing from the
others as having emanated from one source.’

‘The probative value of the above-mentioned writing characteristics are further

augmented by the presence of unusual structural construction of letter forms and/or in
combinations with adjacent letters, thus x x x.’

“The CONCLUSION of the said report states:

‘The questioned handwritings appearing in Exhs. ‘B’ to ‘O’, inclusive, ‘T’, ‘T-1, ‘U’, ‘U-
1’, ‘V’ and ‘V-1’, were WRITTEN BY ONE AND THE SAME PERSON.’

Notwithstanding this report, this Court has taken pains and meticulous effort to
examine with its naked eye the questioned ballots and handwritings, and compare the
same with each other in order to determine whether or not they were indeed written by
a single hand, and this Court is convinced beyond doubt that Exhs. B, C, D, E, F, G, H, K,
L, M, N and O, were written by a single hand, considering the remarkable similarity if not
almost identity of the writings on these ballots. The lower Court’s ruling on these twelve
(12) ballots is hereby reversed, and the twelve (12) votes for protestee-appellee based
thereon should be deducted from him.
 With respect to Exhs. I and J, this Court entertains some doubt on their having
been written by a single hand, and therefore resolves the doubt in favor of the validity
of these two (2) ballots, as votes for protestee-appellee. Therefore, the ruling of the
lower Court counting Exhs. I and J for protestee-appellee stands.” (pp. 78-80, Rollo)

The contention of petitioner that respondent court relied on the report of an alleged
handwriting expert is misplaced. It should be noted that while respondent court
considered the report of Atty. Pagui, it did not rely solely on the said report. In the words
of respondent court, “(I)t has taken pains and meticulous effort to examine with its naked
eye the questioned ballots and handwritings and compare the same with each other ...” In
fact, in its effort to determine the true value of the contested ballots and in order not to
disenfranchise bona fide voters, it counted certain ballots in favor of petitioner which the
alleged handwriting expert found as written by only one person. It contradicted said
report as regards Exhibits “I,” “J,” “V” and “V-1.” The respondent court was circumspect
in relying on its own findings on whether or not these contested ballots were prepared by
one person. The ballots are the best evidence of the objections raised. Resort to
handwriting experts is not mandatory. Handwriting experts, while probably useful, are
not indispensable in examining or comparing handwriting, this can be done by the
COMELEC (in this case, the court taking cognizance of the appeal in this election
protest) itself (Bacobo v. COMELEC, G.R. No. 94173, November 21, 1990, 191 SCRA
576).

Petitioner also argues that respondent court misinterpreted and misapplied Section 36(f)
of Comelec Resolution No. 1539. It allegedly failed to take into consideration the other
provisions of said Section 36 of the Resolution.

We do not agree. Section 36 in its entirety provides:

“Sec. 36. Procedure in the casting of votes. (a) Identification of voter. - The

chairman shall check in the certified list of voters the name of the person offering to
vote. He shall then announce the voter’s name distinctly in a loud tone. If there is no
challenge, or if having been challenged and the question is decided in his favor, the
voter shall be allowed to vote and he shall affix his signature on the proper space of the
Voting Record (Comelec Form No. 5).
“(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 then fold the ballot once, and without removing the detachable coupon, 
deliver it to the voter, together with a ballpen.
“(c) Instructions to the voter. If a voter so requests, the poll clerk shall instruct
him on how to fill the ballot. The voter shall be reminded that he should fill the ballot
secretly and return it folded so as not to show the names of the candidates he voted for.
He shall also be warned not to use any other ballot; not to show the contents of his
ballot; not to put any mark thereon; not to erase, deface or tear the same; and not to
remove the detachable coupon.
“(d) Preparing the ballot. Upon receiving the ballot, the voter shall fill the ballot
secretly.
“(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 ri
ght hand thumbmark on the proper space in the voting record.
(4) The chairman shall than 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.
“(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 o
f the board and shall not be counted.”

The ballots concerned were marked Exhibits “BB,” “BB-1” and “BB-2” from voting
center No. 522. The respondent court ruled that:

“b) Exhs. BB, BB-1 and BB-2 were counted by the lower court for BAUTISTA over
the objection of protestant-appellant that these ballots are not duly authenticated by
the absence of the signature of the Chairman of the Board of Election Tellers at the back
thereof. An examination of the back portion of these ballots reveals that it is completely
blank of any signature or initial. The mandatory requirement of authentication of ballots
is found in Sec. 14 of B.P. 222 and in Sec. 36 of COMELEC Resolution No. 1539, and the
legal consequence for the absence of such authentication is stated precisely in Sec. 36,
sub-par. (f), and generally in Sec. 152 of the 1978 Election Code, x x x.” (p. 84, Rollo)

The law (Sec. 14 of B.P. 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 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.

As regards exhibit “Z” and “Z-1,” respondent court reversed the decision of the trial court
which ruled that these were not marked ballots and hence, were valid votes for petitioner
BAUTISTA. In reversing the trial court, respondent court ruled that the presence of an
arrow with the words “and party,” was meant for no other purpose than to identify the
voter.

We agree. It cannot be said that these writings were accidental. As a general rule, a voter
must write on the ballot only the names of candidates voted for the offices appearing
thereon. Certain exceptions, however, were provided in Section 149 of the Revised
Election Code. For example, prefixes such as “Sr.,” “Mr.,” and the like and suffixes such
as “hijo,” “Jr.,” etc. will not invalidate the ballot (par. 5). Initials (paragraph 15),
nicknames or appellation of affection and friendship will not invalidate the ballot, if
accompanied by the name or surname of the candidate, and above all, if they were not
used as a means to identify the voter. Even under a liberal view, the words written on the
ballots under consideration cannot be considered as falling within the exception to the
rule. Consequently, they are irrelevant expressions that nullified the ballots. (Lloren v.
CA, et al., No. L-25907, January 25, 1967, 19 SCRA 110). Hence, respondent court
excluded Exhibits “Z” and “Z-1.”

Exhibit “S” (Voting Center No. 521) was excluded by respondent court as a vote for
petitioner. It held:

“a) Exh. S was counted by the lower court for BAUTISTA over the objection of
protestant-appellant that this ballot was found in the small compartment of the ballot
box for spoiled ballots and the said ballots appear to be in excess of the number of
ballots actually used. The records show that as reflected in the MINUTES OF VOTING
AND COUNTING OF VOTES found inside the ballot box, (1) there were 311 voters who
cast their votes, and the ballots actually used bear Serial Nos. 1-311, (2) 1 voter did not
return his/her ballot, 8 ballots were spoiled ballots and 302 ballots appreciated by the
Board of Election Tellers. The questioned ballot, Exh. S, together with blank questioned
ballot, was found by the Committee in the small compartment for spoiled ballots. It
does clearly appear that these two(2) ballots, one of which is Exh. S, are in excess of the
311 ballots actually used and must be considered as ‘EXCESS BALLOTS’ under Sec. 151 of
the 1978 Election Code and ‘shall not be read in the counting of votes.’ In view of the
foregoing considerations, the ruling of the lower court on Exh. S is hereby reversed, and
this ballot shall not be counted as a vote of protestee-appellee and therefore deducted
from him.” (pp. 81-82, Rollo)

We affirm.

Petitioner objects to respondent court’s ruling rejecting Exh. “5.” The word “BLBIOY”
was written in the space for Barangay Captain. “BIBOY,” petitioner’s nickname was duly
registered in his certificate of candidacy. Section 155(11) of the 1978 Election Code
provides:

“11. The use of nicknames and appellations of affection and friendship, if

accompanied by the first name or surname of the candidate, does not annul such vote,
except when they were used as a means to identify the voter, in which case the
whole ballot is invalid: Provided, That if the nickname used is unaccompanied by the
name or surname of a candidate and it is the one by which he is generally or popularly
known in the locality and stated in his certificate of candidacy, the same shall be
counted in favor of said candidate, if there is no other candidate for the same office
with the same nickname.”

While the name written was “BLBIOY,” there was no doubt that the voter intended to
vote for “BIBOY,” the nickname of which petitioner was popularly known and which
nickname was duly registered in his certificate of candidacy. Hence, the respondent
court’s decision as regards Exhibit “5” is reversed and the vote is counted for petitioner.

Exhibit “6” was invalidated by both respondent court and the city court as stray vote on
the ground that petitioner’s name, written as “Bo. Barangay Bautista” was placed on the
first line intended for councilmen. In the case of Farin v. Gonzales and CA, G.R. No. L-
36893, September 28, 1973, 53 SCRA 237, cited by petitioner, it was ruled that where the
name of a candidate is not written in the proper space in the ballot but is preceded by the
name of the office for which he is a candidate, the vote should be counted as valid for
such candidate. Such rule stems from the fact that in the appreciation of the ballot, the
object should be to ascertain and carry into effect the intention of the voter, if it could be
determined with reasonable certainty. In this case, while the name of petitioner was
written in the space for barangay councilman, his name was preceded by the name of the
office for which he is being elected, that as Punong Barangay or Barangay Captain (See
Exh. “6”). The respondent court ruled that what was placed before the name BAUTISTA
was Bo. Barangay and not Po. Barangay for Punong Barangay (or Barangay Captain).
We believe however that the voter’s intention to vote for BAUTISTA as Barangay
Captain was present and said vote should be counted in favor of petitioner.

Respondent court correctly invalidated Exhibit “7.” This ballot cannot be considered as a
vote for petitioner whose name was written seven (7) times in the ballot. The writing of a
name more than twice on the ballot is considered to be intentional and serves no other
purpose than to identify the ballot (Katigbak v. Mendoza, L-24477, February 28, 1967,
19 SCRA 543).

ACCORDINGLY, the decision of respondent court is MODIFIED as regards Exhibits

“5” and “6.” Private respondent Roberto Miguel is declared the duly elected Barangay
Captain of Barangay Teachers Village East, Quezon City, with a plurality of twenty-two
(22) votes. The temporary restraining order issued by this Court on December 2, 1982 is
hereby LIFTED.

SO ORDERED.

EN BANC
[ G.R. No. 129783, December 22, 1997 ]
MARCELINO C. LIBANAN, PETITIONER, VS. HOUSE OF
REPRESENTATIVES ELECTORAL TRIBUNAL AND JOSE T. RAMIREZ,
RESPONDENTS.
DECISION

VITUG, J.:

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.

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.

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.

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.

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.
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.

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.

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.

"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:
"'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 inspectors and shall constitute an 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.

"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]

In its assailed decision, the HRET ruled in favor of respondent Ramirez; it concluded:

"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
petitioner's motion for reconsideration, the HRET credited petitioner Libanan with thirty
(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:
"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.

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.
The Constitution 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 Laza
tin vs. HRET, [8] the Court has observed that -
"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]
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 x x x 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."

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 a remedy for such
abuse."

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 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.

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:

"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.

"xxx                                                                     
xxx                                                                               xxx

"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.

"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:
"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
Inspectors 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."
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]

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]
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 Meeting of the Committee on Suffrage and
Electoral Reforms read:

"THE CHAIRMAN. Yes, Congressman Mercado.

"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 CHAIRMAN. A serious election offense.

"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. RONO. Mr. Chairman.

"THE CHAIRMAN. Yes, Congressman Rono.

"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.
"HON. GARCIA. May I offer a suggestion?

"THE CHAIRMAN. Yes, Congressman Garcia.

"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.

"THE CHAIRMAN. Yes, Mr. Chairman.

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

"CHAIRMAN GONZALEZ. Counter side.

"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...

"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]
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:

Section 14 of B.P. 222:

"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.

"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."

Section 36 of COMELEC Resolution No. 1539:

"Sec. 36. Procedure in the casting of votes. - x x x

"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 then fold the ballot once, and
without removing the detachable coupon, deliver it to the voter, together with a ball
pen.

"x x x      x x x    x x x.

"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.

"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]

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.

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:
"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."
 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:
"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."
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 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."
It should be noteworthy that in an unsigned 3rd 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:

"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 inspectors
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:
"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
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]
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 in 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 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:

"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]

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.

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.
One 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:
"x x x Mulling over this, we experience no qualmish feelings about the
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 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.

WHEREFORE, the instant petition is DISMISSED.

IT IS SO ORDERED.
N

EN BANC
[ G.R. No. 142907, November 29, 2000 ]
JOSE EMMANUEL L. CARLOS, petitioner, vs. HON. ADORACION G.
ANGELES, IN HER CAPACITY AS THE ACTING PRESIDING JUDGE OF
THE REGIONAL TRIAL COURT IN CALOOCAN CITY (BRANCH 125) and
ANTONIO M. SERAPIO, respondents.

DECISION

PARDO, J.:
 The Case

The case before the Court is an original special civil action for certiorari and prohibition
with preliminary injunction or temporary restraining order seeking to annul the decision
of the Regional Trial Court, Caloocan City, Branch 125, the dispositive portion of which
reads as follows:
"WHEREFORE, premises considered, the proclamation of the Protestee, Jose
Emmanuel Carlos, by the Board of Canvassers is accordingly SET ASIDE.

"The Court hereby FINDS the Protestant, ANTONIO SERAPIO, as the DULY ELECTED
MAYOR OF VALENZUELA CITY.

"SO ORDERED."[1]
The Facts

Petitioner Jose Emmanuel L. Carlos and respondent Antonio M. Serapio were candidates
for the position of mayor of the municipality of Valenzuela, Metro Manila (later
converted into a City) during the May 11, 1998 elections.

On May 21, 1998, the Municipal Board of Canvassers, Valenzuela, Metro Manila
proclaimed petitioner as the duly elected mayor of Valenzuela having obtained 102,688
votes, the highest number of votes in the election returns.

On June 1, 1998, respondent Antonio M. Serapio who obtained 77,270 votes, the
second highest number of votes, filed with the Regional Trial Court, Valenzuela, Metro
Manila, an election protest challenging the results. Due to the inhibition of all judges of
the Regional Trial Court in Valenzuela, the case was ultimately assigned to the Regional
Trial Court, Caloocan City, Branch 125, presided over by respondent Judge Adoracion G.
Angeles.

On June 26, 1998, petitioner filed with the trial court an answer with affirmative
defenses and motion to dismiss.  The court denied the motion to dismiss by order dated
January 14, 1999.  Petitioner elevated the order to the Commission on Elections
(Comelec) on petition for certiorari and prohibition, [2] which, however, has remained
unresolved up to this moment.
In the course of the protest, the municipal treasurer of Valenzuela, who by law has
custody of the ballot boxes, collected the ballot boxes and delivered them to the
Regional Trial Court, Caloocan City.  The trial court conducted a pre-trial conference of
the parties but it did not produce a substantial result as the parties merely paid
superficial service and only agreed on the following:
1.  Both parties admit their capacity to sue and be sued;

2.  Both parties admit that the protestant was a candidate during the May 11, 1998
election;

3.  Both parties admit that the protestee has been proclaimed as the elected mayor of
Valenzuela, Metro Manila, on May 21, 1998;

4.  Both parties admit that the protestee allegedly obtained 102,688 votes while the
protestant obtained 77,270 votes per canvass of election returns of the Board of
Canvassers.
The pre-trial was then concluded and the parties agreed to the creation of seven
(7) revision committees consisting of a chairman designated by the court and two
members representing the protestant and the protestee.

Meantime, on May 12, 1999, petitioner filed a consolidated motion that included a
prayer for authority to photocopy all the official copies of the revision reports in the
custody of the trial court. However, the trial court denied the issuance of such
authorization.[3] The court likewise denied a motion for reconsideration of the denial.
[4]
 Then petitioner raised the denial to the COMELEC on petition for certiorari and
mandamus,[5] which also remains unresolved until this date.
The Revision Results

The revision of the ballots showed the following results:

(1) Per physical count of the ballots:

(a) protestant Serapio - 76,246 votes.

(b) protestee Carlos -  103,551 votes.

(2) Per revision, the court invalidated 9,697 votes of the protestant but validated 53
stray votes in his favor.

The court invalidated 19,975 votes of the protestee and validated 33 stray votes in his
favor.

The final tally showed:

(a) protestant Serapio -   66,602 votes.

(b) protestee Carlos -  83,609 votes, giving the latter a winning margin of 17,007 votes.

The Trial Court's Ruling

Nevertheless, in its decision, the trial court set aside the final tally of valid votes because
of its finding of "significant badges of fraud," namely:

1.  The keys turned over by the City Treasurer to the court did not fit into the padlocks
of the ballot boxes that had to be forcibly opened;

2.  Seven (7) ballot boxes did not contain any ballot and two (2) ballot boxes out of the
seven (7) ballot boxes did not contain any election returns;

3.  Some schools where various precincts were located experienced brownouts during
the counting of votes causing delay in the counting although there was no undue
commotion or violence that occurred;

4.  Some of the assigned watchers of protestant were not in their posts during the
counting of votes.
On the basis of the foregoing badges of fraud, the trial court declared that there
was enough pattern of fraud in the conduct of the election for mayor in Valenzuela. The
court held that the fraud was attributable to the protestee who had control over the
election paraphernalia and the basic services in the community such as the supply of
electricity.

On April 24, 2000, the trial court rendered a judgment ruling that the perpetuation of
fraud had undoubtedly suppressed the true will of the electorate of Valenzuela and
substituted it with the will of the protestee. Notwithstanding the plurality of valid votes
in favor of the protestee, the trial court set aside the proclamation of protestee Jose
Emmanuel Carlos by the Municipal Board of Canvassers and declared protestant
Antonio M. Serapio as the duly elected mayor of Valenzuela City. [6]

Hearing news that the protestant had won the election protest, the protestee secured a
copy of the decision from the trial court on May 4, 2000. On the other hand, notice of
the decision was received by the protestant on May 03, 2000.

On May 4, 2000, protestant filed with the trial court a motion for execution pending
appeal.[7] On May 4, 2000, the trial court gave protestee five (5) days within which to
submit his comment or opposition to the motion. [8]

Petitioner's Appeal to Comelec

Meantime, on May 04, 2000, petitioner filed a notice of appeal from the decision of the
trial court to the Commission on Elections. [9]

The Petition at bar

On May 8, 2000, petitioner filed the present recourse.[10]

Petitioner raised the following legal basis:

(1) The Supreme Court has original jurisdiction to entertain special civil actions of
certiorari and prohibition;

(2) There are important reasons and compelling circumstances which justify petitioner's
direct recourse to the Supreme Court;

(3) Respondent judge committed grave abuse of discretion when she declared
respondent Serapio as the duly elected mayor of Valenzuela despite the fact that she
found that petitioner obtained 17,007 valid votes higher than the valid votes of
respondent Serapio;

(4) The assailed decision is contrary to law, based on speculations and not supported by
the evidence as shown in the decision itself.[11]
The Issues

The issues raised are the following:

1.  Whether the Supreme Court has jurisdiction to review, by petition for certiorari as a
special civil action, the decision of the regional trial court in an election  protest case
involving an elective municipal official considering that it has no appellate jurisdiction
over such decision.

2.  Whether the trial court acted without jurisdiction or with grave abuse of discretion
when the court set aside the proclamation of petitioner and declared respondent
Serapio as the duly elected mayor of Valenzuela City despite its finding that petitioner
garnered 83,609 valid votes while respondent obtained 66,602 valid votes, or a winning
margin of 17,007 votes.
TRO Issued

On May 8, 2000, we issued a temporary restraining order ordering respondent court to

cease and desist from further taking cognizance of Election Protest No. 14-V-98 more
specifically from taking cognizance of and acting on the Motion for Execution Pending
Appeal filed by respondent Serapio on May 4, 2000. [12]

Respondent's Position

On May 15, 2000, respondent Serapio filed his comment with omnibus motion to lift the
temporary restraining order and to declare petitioner in contempt of court for violating
the rule against forum shopping. [13] He submitted that Comelec and not the Supreme
Court has jurisdiction over the present petition for certiorari assailing the decision dated
April 24, 2000 of the regional trial court. Assuming that this Court and Comelec have
concurrent jurisdiction and applying the doctrine of primary jurisdiction, the Comelec
has jurisdiction since petitioner has perfected his appeal therewith before the filing of
the instant petition. Certiorari cannot be a substitute for an appeal; the present petition
is violative of Revised Circular No. 28-91 on forum-shopping; issues raised are factual,
not correctible by certiorari; and that the temporary restraining order should be lifted,
the petition dismissed, and petitioner and counsel should be made to explain why they
should not be punished for contempt of court.
The Court's Ruling

We find the petition impressed with merit. [14]

I.  The Supreme Court is vested with original jurisdiction to issue writs of certiorari,
prohibition and mandamus against the decision of the regional trial court in the election
protest case before it, regardless of whether it has appellate jurisdiction over such
decision.
Article VIII, Section 5 (1) of the 1987 Constitution provides that:
"Sec. 5. The Supreme Court shall have the following powers:

"(1) Exercise original jurisdiction over cases affecting ambassadors, other public 

ministers and consuls, and over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus."

xxx
Rule 65, Section 1 of the 1997 Rules of Civil Procedure, as amended, provides
that:
"SECTION 1.  Petition for certiorari.--When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal, or any plain, speedy, and adequate remedy in the course of law,
a person aggrieved thereby may file a verified petition in the proper court, alleging the
facts with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law
and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or
resolution subject thereof, copies of all pleadings and documents relevant and pertinent
thereto, and a sworn certification of non-forum shopping as provided in the third
paragraph of section 3, Rule 46."
 By Constitutional fiat, the Commission on Election (Comelec) has appellate
jurisdiction over election protest cases involving elective municipal officials decided by
courts of general jurisdiction, as provided for in Article IX (C), Section 2 of the 1987
Constitution:
"Sec. 2.  The Commission on Elections shall exercise the following powers and
functions:

"(1)  x  x  x.

"(2) Exercise exclusive original jurisdiction over all contests relating to the elections,
returns and qualifications of all elective regional, provincial, and city officials, and
appellate jurisdiction over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, or involving elective barangay officials decided by trial
courts of limited jurisdiction."
In like manner, the Comelec has original jurisdiction to issue writs of certiorari,
prohibition and mandamus involving election cases in aid of its appellate jurisdiction.
[15]
 This point has been settled in the case of Relampagos vs. Cumba,[16] where we held:
"In the face of the foregoing disquisitions, the court must, as it now does,
abandon the ruling in the Garcia and Uy and Veloria cases. We now hold that the last
paragraph of Section  50  of B. P. Blg. 697 providing as follows:

The Commission is vested with exclusive authority to hear and decide petitions for
certiorari, prohibition and mandamus involving election cases.

remains in full force and effect but only in such cases where, under paragraph (2),
Section 1, Article IX-C of the Constitution, it has exclusive appellate jurisdiction.  Simply
put, the COMELEC has the authority to issue the extraordinary writs of certiorari,
prohibition, and mandamus only in aid of its appellate jurisdiction." (Emphasis ours).
Consequently, both the Supreme Court and Comelec have concurrent jurisdiction
to issue writs of certiorari, prohibition, and mandamus over decisions of trial courts of
general jurisdiction (regional trial courts) in election cases involving elective municipal
officials.  The Court that takes jurisdiction first shall exercise exclusive jurisdiction over
the case.[17]

Ergo, this Court has jurisdiction over the present petition of certiorari as a special civil
action expressly conferred on it and provided for in the Constitution.

Relative to the appeal that petitioner filed with the COMELEC, the same would not bar
the present action as an exception to the rule because under the circumstances, appeal
would not be a speedy and adequate remedy in the ordinary course of law.
[18]
 The exception is sparingly allowed in situations where the abuse of discretion is not
only grave and whimsical but also palpable and patent, and the invalidity of the
assailed act is shown on its face.
II.   Certiorari lies. The trial court acted with grave abuse of discretion amounting
to lack or excess of jurisdiction.  Its decision is void.
The next question that arises is whether certiorari lies because the trial court
committed a grave abuse of discretion amounting to lack or excess of jurisdiction in
deciding the way it did Election Protest Case No. 14-V-98, declaring respondent Serapio
as the duly "elected" mayor of Valenzuela, Metro Manila.

In this jurisdiction, an election means "the choice or selection of candidates to public

office by popular vote"[19] through the use of the ballot, and the elected officials of which
are determined through the will of the electorate. [20] "An election is the embodiment of
the popular will, the expression of the sovereign power of the people." [21] "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."[22] The winner is the candidate who has obtained a
majority or plurality of valid votes cast in the election. [23] "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 be declared carried unless he
or it receives a majority or plurality of the legal votes cast in the election." [24] In case of
protest, a revision or recount of the ballots cast for the candidates decides the election
protest case. The candidate receiving the highest number or plurality of votes shall be
proclaimed the winner. Even if the candidate receiving the majority votes is ineligible or
disqualified, the candidate receiving the next highest number of votes or the second
placer, can not be declared elected.[25] "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."[26] In other words, "a defeated candidate cannot be deemed
elected to the office."[27]

"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.  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.  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. The Supreme 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."[28]

In this case, based on the revision of ballots, the trial court found that:
First, by canvass of the Municipal Board of Canvassers the results were:

Carlos    -   102,668 votes

Serapio   -   77,270 votes, or a winning margin of 25,418 votes
Ramon Ignacio   - 20 votes.

and consequently, the Board of Canvassers proclaimed petitioner Carlos the duly
elected mayor of Valenzuela, Metro Manila.

Second, by physical count of the ballots, the results were:

Carlos          -  103,551 votes

Serapio         -   76,246 votes, or a winning margin of 27,305 votes.

Third, by revision of the ballots, the trial court found in a final tally that the "valid" votes
obtained by the candidates were as follows:

Carlos          - 83,609  votes

Serapio         - 66,602  votes, or a winning margin of 17,007  votes.
Consequently, the final tally clearly showed petitioner Carlos as the overwhelming
winner in the May 11, 1998 elections.
However, the trial court set aside the final tally of votes because of what the trial
court perceived to be "significant badges of fraud" attributable to the protestee.
[29]
 These are:

First: The failure of the keys turned over by the City Treasurer to the trial court to fit the
padlocks on the ballot boxes that compelled the court to forcibly open the padlocks. 
The trial court concluded that the real keys were lost or the padlocks substituted
pointing to possible tampering of the contents of the ballot boxes.

Procedurally, the keys to the ballot boxes were turned over by the Board of Election
Inspectors from the precinct level to the Municipal Board of Canvassers and finally to
the municipal treasurer for safekeeping.  The three-level turn-over of the keys will not
prevent the possibility of these keys being mixed up.  This is an ordinary occurrence
during elections. The mere inability of the keys to fit into the padlocks attached to the
ballot boxes does not affect the integrity of the ballots.  At any rate, the trial court easily
forced open the padlocks and found valid votes cast therein;

Second: Seven (7) ballot boxes were found empty. Thus, the trial court concluded that
there were "missing ballots" and "missing election returns." This is pure speculation
without factual basis. "The sea of suspicion has no shore, and the court that embarks
upon it is without rudder or compass."[30] On the other hand, the Summary of Votes as
revised does not show any unaccounted precinct or whether there was any precinct
without any ballot or election returns.  It is a standard procedure of the Commission on
Elections (Comelec) to provide extra empty ballot boxes for the use of the Board of
Election Inspectors or the Board of Canvassers, in case of necessity.

The empty ballot boxes found could be the empty reserve ballot boxes that were not
used by the Board of Election Inspectors or the Board of Canvassers since there  was
neither proof nor even a claim of missing ballots or missing election returns.

Third: Some schoolhouses experienced brownout during the counting of votes. There

was nothing extraordinary that would invite serious doubts or suspicion that fraud was
committed during the brownout that occurred. Indeed, one witness stated that it was
the first time that he observed brownout in Dalandanan Elementary School and another
stated that the brownout was localized in Coloong Elementary School. Since counting of
votes lasted until midnight, the brownouts had caused only slight delay in the
canvassing of votes because the election officials availed themselves of candles,
flashlights  and emergency lights.  There were no reports of cheating or tampering of
the election returns. In fact, witnesses testified that the counting of votes proceeded
smoothly and no commotion or violence occurred.  So, the brownouts had no effect on
the integrity of the canvass.

Fourth: The absence of watchers for candidate Serapio from their posts during the
counting of votes. This cannot be taken against candidate Carlos since it is the
candidate's own look-out to protect his interest during the counting of votes and
canvassing of election returns.  As long as notices were duly served to the parties, the
counting and canvassing of votes may validly proceed in the absence of watchers. 
Otherwise, candidates may easily delay the counting of votes or canvassing of returns by
simply not sending their watchers. There was no incomplete canvass of returns,
contrary to what the trial court declared. The evidence showed complete canvass in
Valenzuela, Metro Manila.[31]

"We cannot allow an election protest 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." [32]

Assuming for the nonce that the trial court was correct in holding that the final tally of
valid votes as per revision report may be set aside because of the "significant badges of
fraud", the same would be tantamount to a ruling that there were no valid votes cast at
all for the candidates, and, thus, no winner could be declared in the election protest
case. In short, there was failure of election.

In such case, the proper remedy is an action before the Commission on Elections en
banc to declare a failure of election or to annul the election. [33] However, the case below
was an election protest case involving an elective municipal position which, under
Section 251 of the Election Code, falls within the exclusive original jurisdiction of the
appropriate regional trial court.[34]
Nonetheless, the annulment of an election on the ground of fraud, irregularities and
violations of election laws may be raised as an incident to an election contest. Such
grounds for annulment of an election may be invoked in an election protest case.
However, an election must not be nullified and the voters disenfranchised whenever it is
possible to determine a winner on the basis of valid votes cast, and discard the illegally
cast ballots. In this case, the petitioner admittedly received 17,007 valid votes more
than the protestee, and  therefore the nullification of the election would not lie. The
power to nullify an election must be exercised with the greatest care with a view not to
disenfranchise the voters, and only under circumstances that clearly call for such drastic
remedial measure.[35]

As heretofore stated, in this jurisdiction, elections are won on the basis of a majority or
plurality of votes cast and received by the candidates. "The right to hold an elective
office is rooted on electoral mandate, not perceived entitlement to the office."[36]

More importantly, the trial court has no jurisdiction to declare a failure of election. [37]
Section 6 of the Omnibus Election Code provides that:

"Sec. 6.  Failure of Election.--If, on account of force majeure, violence, terrorism, fraud or

other analogous causes the election in any polling place has not been held on the date
fixed, or had been suspended before the hour fixed by law for the closing of the voting,
or after the voting and during the preparation and the transmission of the election
returns or in the custody of canvass thereof, such election results in a failure to elect,
and in any of such cases the failure or suspension of election would affect the result of
the election, the Commission shall, on the basis of a verified  petition by any interested 
party and after due notice and hearing, call for the holding or continuation of the
election not  held, suspended or which resulted in a failure to elect on a date reasonably
close to the date of the election not held, suspended or which resulted in a failure to
elect but not later than thirty (30) days after the cessation of the cause of such
postponement or suspension of the election or failure to elect." (Emphasis supplied)

Likewise, RA 7166 provides that:

"Sec. 4.  Postponement, Failure of Election and Special Elections.-- The postponement,
declaration of failure of election and the calling of special elections as provided in
Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the Commission
sitting en banc by a majority vote of its members.  The causes for the declaration of a
failure of election may occur before or after the casting of votes or on the day of the
election." (Emphasis supplied)

It is the Commission (Comelec) sitting en banc that is vested with exclusive

jurisdiction to declare a failure of election.[38]

"In a petition to annul an election under Section 6, Batas Pambansa Blg. 881, two
conditions must be averred in order to support a sufficient cause of action.  These
are: (1) the illegality must affect more than 50% of the votes cast and (2) the good
votes can be distinguished from the bad ones.  It is only when these two conditions
are established that the annulment of the election can be justified because the
remaining votes do not constitute a valid constituency."[39]

We have held that: "To declare a failure of election, two (2) conditions must occur:
first, no voting has taken place in the precincts concerned on the date fixed by law
or, even if there were voting, the election nevertheless resulted in a failure to elect;
and, second, the votes not cast would affect the result of the election."[40] Neither of
these conditions was present in the case at bar.

More recently, we clarified that, "Under the pertinent codal provision of the
Omnibus Election Code, there are only three (3) instances where a failure of
elections may be declared, namely: (a) the election in any polling place has not been
held on the date fixed on account of force majeure, violence, terrorism, fraud, or
other analogous causes; (b) the election in any polling place had been
suspended before the hour fixed by law for the closing of the voting on account
of force majeure, violence, terrorism, fraud, or other analogous causes; or (c) after
the voting and during the preparation and transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect on account
of force majeure, violence, terrorism, fraud, or other analogous causes."[41]

Thus, the trial court in its decision actually pronounced a failure of election by
disregarding and setting aside the results of the election. Nonetheless, as herein-
above stated, the trial court erred to the extent of ousting itself of jurisdiction
because the grounds for failure of election were not significant and even non-
existent.  More importantly, the commission of fraud can not be attributed to the
protestee.  There was no evidence on record that protestee had a hand in any of the
irregularities that protestant averred.  It is wrong for the trial court to state that the
protestee had control over the "election paraphernalia" or over electric services. 
The Commission on Elections has control over election paraphernalia, through its
officials and deputies.[42] The Comelec can deputize with the concurrence of the
 President, law enforcement agencies and instrumentalities of the government,
including the Armed Forces of the Philippines, for the exclusive purpose of ensuring
free, orderly, honest, peaceful, and credible elections.[43] On the other hand, electric
utility services in Metro Manila, including Valenzuela are under the control of its
franchise holder, particularly the Manila Electric Company, a public service
company, certainly not owned or controlled by the protestee.  In fact, during
election period, Comelec has control over such utilities as electric and even
telephone service.[44] What is important, however, is that the voters of Valenzuela
were able to cast their votes freely and fairly.  And in the election protest case, the
trial court was able to recount and determine the valid votes cast.

Assuming that the trial court has jurisdiction to declare a failure of election, the
extent of that power is limited to the annulment of the election and the calling of
special elections.[45] The result is a failure of election for that particular office.  In
such case, the court can not declare a winner.[46] A permanent vacancy is thus
created.  In such eventuality, the duly elected vice-mayor shall succeed as provided
by law.[47]

We find that the trial court committed a grave abuse of discretion amounting to lack
or excess of jurisdiction in rendering its decision proclaiming respondent Serapio
the duly elected mayor of Valenzuela, Metro Manila, on the basis of its perception of
the voice of the people of Valenzuela, even without a majority or plurality votes cast
in his favor.  In fact, without a single vote in his favor as the trial court discarded all
the votes.  Thus, the decision is not supported by the highest number of valid votes
cast in his favor.  This violated the right to due process of law of petitioner who was
not heard on the issue of failure of election, an issue that was not raised by the
protestant. "A decision is void for lack of due process if, as a result, a party is
deprived of the opportunity of being heard."[48] The trial court can not decide the
election protest case outside the issues raised.  If it does, as in this case, the trial
court is ousted of its jurisdiction.  Likewise, it is a basic principle that a decision
with absolutely nothing to support it is void.[49] "A void decision may be assailed or
impugned at any time either directly or collaterally, by means of a petition filed in
the same case or by means of a separate action, or by resisting such decision in any
action or proceeding where it is invoked."[50] Here, the trial court indulged in
speculations on its view of the voice of the people, and decided the case disregarding
the evidence, but on its own intuition, ipse dixit.[51] How was this voice communicated
to the trial court?  Certainly not by competent evidence adduced before the court as
it should be, but by extra-sensory perception.  This is invalid in law.  Contrary to its
own finding that petitioner obtained 83,600 valid votes against 66,602 valid votes for
the respondent as second placer, or a plurality of 17,007 votes, the trial court
declared the second placer as the winner.  This is a blatant abuse of judicial
discretion by any account.  It is a raw exercise of judicial function in an arbitrary or
despotic manner, amounting to evasion of the positive duty to act in accord with
 law.[52]

In a special civil action for certiorari, the burden is on 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 Judge. "By grave abuse of
discretion is meant capricious and whimsical exercise of judgment as is equivalent to
lack of jurisdiction. Mere abuse of discretion is not enough. It must be grave abuse
of discretion 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."[53] We must emphasize that
election to office is determined by the highest number of votes obtained by a
candidate in the election.
The Judgment

WHEREFORE, the Court GRANTS the petition.  The Court ANNULS and
DECLARES VOID the decision dated April 24, 2000 of the trial court in Election
Protest Case No. V-14-98.

The temporary restraining order we issued on May 8, 2000, is made permanent.

Let Election Protest Case No. V-14-98 be remanded to the trial court for decision
within a non-extendible period of fifteen (15) days from notice of this decision. The
judge shall report to this Court on the decision rendered within five (5) days from
rendition submitting a copy thereof to the Office of the Clerk of Court en banc.

This decision is immediately executory.

No costs.

SO ORDERED. EN BANC
[ G.R. No. 125629, March 25, 1998 ]
MANUEL  C.  SUNGA, PETITIONER, VS. COMMISSION ON ELECTIONS
AND FERDINAND B. TRINIDAD, RESPONDENTS.

DECISION

BELLOSILLO, J.:
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.

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 22 April 1995 Sunga filed with the COMELEC a letter-complaint [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.

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.

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 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.

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 –

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 x x x x
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 x x x x
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.
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 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.
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.

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.

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

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 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.

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 –

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.

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]

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 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.

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 (underscoring supplied).

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.
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.

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 disqualification case. In Aguam v. COMELEC[12] this Court held -

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 x x x x 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.

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]
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 –

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.

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.

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]

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]
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:

To simplistically assume that the second placer would have received the
other votes would be to substitute our judgment for the mind of the voter. The
second placer is just that, a second placer. He lost the elections. 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.

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

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]

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.

EN BANC
[ G.R. Nos. 106270-73, February 10, 1994 ]
SULTAN MOHAMAD L. MITMUG, PETITIONER, VS. COMMISSION ON
ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF LUMBA-
BAYABAO, LANAO DEL SUR, AND DATU GAMBAI DAGALANGIT, AND
DATU GAMBAI DAGALANGIT, RESPONDENTS.

DECISION

BELLOSILLO, J.:

The turnout of voters during the 11 May 1992 election in Lumba-Bayabao, Lanao del
Sur, was abnormally low. As a result, several petitions were filed seeking the declaration
of failure of election in precincts where less than 25% of the electorate managed to cast
their votes. But a special election was ordered in precincts where no voting actually took
place. The Commission on Elections (COMELEC) ruled that for as long as the precincts
functioned and conducted actual voting during election day, low voter turnout would not
justify a declaration of failure of election. We are now called upon to review this ruling.

Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI

DAGALANGIT were among the candidates for the mayoralty position of Lumba-
Bayabao during the 11 May 1992 election. There were sixty seven (67) precincts in the
municipality.

As was heretofore stated, voter turnout was rather low, particularly in forty-nine (49)
precincts where the average voter turnout was 22.26%, i.e., only 2,330 out of 9,830
registered voters therein cast their votes. Five (5) of these precincts did not conduct actual
voting at all.[1]

Consequently, COMELEC ordered the holding of a special election on 30 May 1992 in

the five (5) precincts which failed to function during election day. On 30 July 1992
another special election was held for a sixth precinct.[2]

In the interim, petitioner filed a petition seeking the annulment of the special election
conducted on 30 May 1992 alleging various irregularities such as the alteration,
tampering and substitution of ballots. But on 13 July 1992, COMELEC considered the
petition moot since the votes in the subject precincts were already counted.[3]

Other petitions seeking the declaration of failure of election in some or all precincts of
Lumba-Bayabao were also filed with COMELEC by other mayoralty candidates, to wit:

1. SPA No. 92-324: On 6 June 1992, private respondent Datu Gamba Dagalangit
filed an urgent petition praying for the holding of a special election in Precinct No.
22-A alleging therein that when the ballot box was opened, ballots were already
torn to pieces. On 14 July 1992, the petition was granted and a special election for
Precinct No. 22-A was set for 25 July 1992.[4]

2. SPA No. 92-336: On 16 June 1992, Datu Elias Abdusalam, another mayoralty
candidate, filed a petition to declare failure of election in twenty-nine (29) more
precincts as a result of alleged tampering of ballots[5] and clustering of precincts.
[6]
 On 16 July 1992, the petition was dismissed. COMELEC ruled that there must
be a situation where there is absolute inability to vote before a failure of election
can be declared.[7] Since voting was actually conducted in the contested precincts,
there was no basis for the petition.

3. SPC No. 92-368: On 20 June 1992, private respondent filed another petition, this
time seeking to exclude from the counting the ballots cast in six (6) precincts on
the ground that the integrity of the ballot boxes therein was violated.[8] Again, on
14 July 1992, COMELEC considered the petition moot, as the issue raised therein
was related to that of SPA No. 92-311 which on 9 July 1992 was already set aside
as moot.[9]

4. SPA No. 92-347: On 1 July 1992, Datu Bagtao Khalid Lonta, a fourth mayoralty
candidate, filed a petition which in the main sought the declaration of failure of
election in all sixty-seven (67) precincts of Lumba-Bayabao, Lanao del Sur, on the
ground of massive disenfranchisement of voters.[10] On 9 July 1992, COMELEC
dismissed the petition, ruling that the allegations therein did not support a case of
failure of election.[11]

On 8 July 1992, petitioner filed a motion to intervene in these four (4) petitions.[12] But
COMELEC treated the same as a motion for reconsideration and promptly denied it
considering that under the COMELEC Rules of Procedure such motion was a prohibited
pleading.[13]

Thereafter, a new Board of Election Inspectors was formed to conduct the special
election set for 25 July 1992. Petitioner impugned the creation of this Board.
Nevertheless, on 30 July 1992, the new Board convened and began the canvassing of
votes. Finally, on 31 July 1992, private respondent was proclaimed the duly elected
Mayor of Lumba-Bayabao, Lanao del Sur.

On 3 August 1992, petitioner instituted the instant proceedings seeking the declaration of
failure of election in forty-nine (49) precincts where less than a quarter of the electorate
were able to cast their votes. He also prayed for the issuance of a temporary restraining
order to enjoin private respondent from assuming office.

On 10 August 1992, petitioner lodged an election protest with the Regional Trial Court of
Lanao del Sur disputing the result not only of some but all the precincts of Lumba-
Bayabao, Lanao del Sur.[14]

Respondents, on the other hand, assert that with the filing of an election protest,
petitioner is already deemed to have abandoned the instant petition.

It may be noted that when petitioner filed his election protest with the Regional Trial
Court of Lanao del Sur, he informed the trial court of the pendency of these proceedings.
Paragraph 3 of his protest states “[T]hat on August 3, 1992, your protestant filed a
Petition for Certiorari with the Supreme Court x x x docketed as G.R.
No. 106270 assailing the validity of the proclamation of the herein protestee x x x
x”[15] Evidently, petitioner did not intend to abandon his recourse with this Court. On the
contrary, he intended to pursue it. Where only an election protest ex abundante ad
cautela is filed, the Court retains jurisdiction to hear the petition seeking to annul an
election.[16]

The main issue is whether respondent COMELEC acted with grave abuse of discretion
amounting to lack of jurisdiction in denying motu proprio and without due notice and
hearing the petitions seeking to declare a failure of election in some or all of the precincts
in Lumba-Bayabao, Lanao del Sur. After all, petitioner argues, he has meritorious
grounds in support thereto, viz., the massive disenfranchisement of voters due to alleged
terrorism and unlawful clustering of precincts, which COMELEC should have at least
heard before rendering its judgment.

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

Consequently, the proclamation of a winning candidate together with his subsequent
assumption of office is not an impediment to the prosecution of the case to its logical
conclusion.[17]

Under the COMELEC Rules of Procedure, within twenty-four (24) hours from the filing
of a verified petition to declare a failure to elect, notices to all interested parties indicating
therein the date of hearing should be served through the fastest means available. [18] The
hearing of the case will also be summary in nature.[19]

Based on the foregoing, the clear intent of the law is that a petition of this nature must be
acted upon with dispatch only after hearing thereon shall have been conducted. Since
COMELEC denied the other petitions[20] which sought to include forty-three (43) more
precincts in a special election without conducting any hearing, it would appear then that
there indeed might have been grave abuse of discretion in denying the petitions.

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

Rule 26, thereof which was lifted from Sec. 6, B.P. 881, otherwise known as the
Omnibus Election Code of the Philippines, indicates otherwise. It reads –
Sec. 2. Failure of election. If, on account of force majeure, violence, terrorism, fraud or
other analogous causes the election in any precinct has not been held on the date fixed, or
had been suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in the
custody of canvass thereof, such election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the result of the election, the
Commission shall, on the basis of a verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of the election not held, suspended
or which resulted in a failure to elect on a date reasonably close to the date of the election
not held, suspended or which resulted in a failure to elect but not later than thirty (30)
days after the cessation of the cause of such postponement or suspension of the election
or failure to elect.
Before COMELEC can act on a verified petition seeking to declare a failure of election,
two (2) conditions must concur: first, no voting has taken place in the precinct or
precincts on the date fixed by law or, even if there was voting, the election nevertheless
results in failure to elect; and, second, the votes not cast would affect the result of the
election.[21]

In the case before us, it is indubitable that the votes not cast will definitely affect the
outcome of the election. But, the first requisite is missing, i.e., that no actual voting took
place, or even if there is, the results thereon will be tantamount to a failure to elect. Since
actual voting and election by the registered voters in the questioned precincts have taken
place, the results thereof cannot be disregarded and excluded.[22] COMELEC therefore did
not commit any abuse of discretion, much less grave, in denying the petitions outright.
There was no basis for the petitions since the facts alleged therein did not constitute
sufficient grounds to warrant the relief sought. For, the language of the law expressly
requires the concurrence of these conditions to justify the calling of a special election. [23]

Indeed, the fact that a verified petition is filed does not automatically mean that a hearing
on the case will be held before COMELEC will act on it. The verified petition must still
show on its face that the conditions to declare a failure to elect are present. In the absence
thereof, the petition must be denied outright.

Considering that there is no concurrence of the two (2) conditions in the petitions seeking
to declare failure of election in forty-three (43) more precincts, there is no more need to
receive evidence on alleged election irregularities.

Instead, the question of whether there have been terrorism and other irregularities is
better ventilated in an election contest. These irregularities may not as a rule be invoked
to declare a failure of election and to disenfranchise the electorate through the misdeeds
of a relative few.[24] Otherwise, elections will never be carried out with the resultant
disenfranchisement of innocent voters as losers will always cry fraud and terrorism.

There can be failure of election in a political unit only if the will of the majority has been
defiled and cannot be ascertained. But, if it can be determined, it must be accorded
respect. After all, there is no provision in our election laws which requires that a majority
of registered voters must cast their votes. All the law requires is that a winning candidate
must be elected by a plurality of valid votes, regardless of the actual number of ballots
cast.[25] Thus, even if less than 25% of the electorate in the questioned precincts cast their
votes, the same must still be respected. There is prima facie showing that private
respondent was elected through a plurality of valid votes of a valid constituency.

WHEREFORE, there being no grave abuse of discretion, the Petition for Certiorari is
DISMISSED.

SO ORDERED.

EN BANC
[ G.R. No. 154198, January 20, 2003 ]
PETRONILA S. RULLODA, PETITIONER, VS. COMMISSION ON
ELECTIONS (COMELEC), ELECTION OFFICER LUDIVICO L. ASUNCION
OF SAN JACINTO, PANGASINAN; BARANGAY BOARD OF CANVASSERS
OF BRGY. STO. TOMAS, SAN JACINTO, PANGASINAN, BOARD OF
ELECTION TELLERS OF PREC. NOS. 30A/30A1, 31A, 31A1, AND 32A1,
AND REMEGIO PLACIDO, RESPONDENTS.

DECISION

YNARES-SANTIAGO, J.:

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.[2] Petitioner’s 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 petitioner’s 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

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 COMELEC’s 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 and sangguniang 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 quasi-judicial 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 petitioner’s 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 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 being non 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 well-
settled 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 respondent’s 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 petitioner’s 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 petitioner’s 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 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 petitioner’s 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.

EN BANC
[ G.R. No. 186224, August 25, 2009 ]
CONSTANCIO D. PACANAN, JR., PETITIONER, VS. COMMISSION ON
ELECTIONS AND FRANCISCO M. LANGI, SR., RESPONDENTS.

DECISION

LEONARDO-DE CASTRO, J.:

Before the Court is a petition for certiorari which seeks to set aside 1) the Order [1] dated
March 17, 2008 of the Commission on Elections (Comelec) First Division and 2) the
Resolution[2] dated January 21, 2009 of the Comelec En Banc dismissing petitioner
Constancio D. Pacanan, Jr.'s appeal from the Decision[3] 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 five-day reglementary period.

In the assailed Resolution dated January 21, 2009, the Comelec En Banc denied
petitioner's 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:

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 respondent's 3,066 votes.

Thereafter, private respondent filed with the RTC a Protest[4] 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-Protest[5] dated June 4,
2007, asserting that private respondent's 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.

On January 7, 2008, the RTC rendered a decision[6] 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:

Wherefore, in view of the foregoing Protestant Francisco M. Langi, Sr. having obtained
the over all total votes of 3,074 and the Protestee's 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

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 Order[8] dismissing the
appeal, viz.:

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 Protestee-Appellant's failure to pay the correct appeal fee as prescribed by
the Comelec Rules of Procedure within the five-(5)-day reglementary period.
SO ORDERED.

On March 28, 2008, petitioner filed a Motion for Reconsideration[9] which the Comelec
En Banc denied in the Resolution[10] 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.

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.

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.

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

a. To RTC on January 10, 2008 ------ P3,000.00

10.00
5.00
___________
TOTAL P3,015.00
b. To Comelec on February 14, 2008 P1,000.00
--
50.00
150.00
___________
TOTAL P1,200.00

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.

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.

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.

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 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.

Respondent also argues that the negligence and mistakes of petitioner's 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.

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:

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:

SEC. 3. Appeal Fees. - The appellant in election cases shall pay an appeal fee as follows:
(a) For election cases appealed from Regional Trial Courts..........P3,000.00 (per
appellant)
(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.

Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC[12] 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:

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.

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;

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:

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.

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.

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.

WHEREFORE, in view of the foregoing, the Commission

hereby RESOLVES to DIRECT as follows:

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 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:

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; xxx
 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.

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.

Our ruling in the very recent case of Aguilar v. Comelec,[14] quoted hereunder, squarely
applies to the instant case:

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:

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) 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.

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

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

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 court's
decision in election contests involving municipal and barangay officials is perfected
upon the filing of the notice of appeal and the payment of the P1,000.00 appeal fee to the
court that rendered the decision within the five-day reglementary period. The non-
payment or the insufficient payment of the additional appeal fee of P3,200.00 to the
COMELEC Cash Division, in accordance with Rule 40, Section 3 of the COMELEC
Rules of Procedure, as amended, does not affect the perfection of the appeal and does
not result in outright or ipso facto dismissal of the appeal. Following, Rule 22,
Section 9 (a) of the COMELEC Rules, the appeal may be dismissed. And pursuant to
Rule 40, Section 18 of the same rules, if the fees are not paid, the
COMELEC may refuse to take action thereon until they are paid and may dismiss
the action or the proceeding. In such a situation, the COMELEC is merely given the
discretion to dismiss the appeal or not.

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

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

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

The COMELEC First Division should have been more cautious in dismissing petitioner's
appeal on the mere technicality of non-payment 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.

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.

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 Comelec's Cash Division through the Electoral Contests Adjudication
Department (ECAD) or by postal 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:
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; xxx

Thus, when petitioner's 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 40[15] 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.

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 petitioner's failure
to pay the correct appeal fee within the five-day reglementary period. In denying
petitioner's 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 petitioner's 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 petitioner's 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.

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

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.

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

It has been frequently decided, and it may be stated as a general rule recognized by all
courts, that statutes providing for election contests are to be liberally construed to the end
that the will of the people in the choice of public officers may not be defeated by mere
technical objections. An election contest, unlike an ordinary action, is imbued with public
interest since it involves not only the adjudication of the private interests of rival
candidates but also the paramount need of dispelling the uncertainty which beclouds the
real choice of the electorate with respect to who shall discharge the prerogatives of the
office within their gift. Moreover, it is neither fair nor just to keep in office for an
uncertain period one 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.

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-13-2008 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. EN BANC
[ G.R. No. 184801, July 30, 2009 ]
JONAS TAGUIAM, PETITIONER, VS. COMMISSION ON ELECTIONS AND
ANTHONY C. TUDDAO, RESPONDENTS.

DECISION

YNARES-SANTIAGO, J.:

This petition for certiorari with prayer for issuance of a temporary restraining

order and writ of preliminary injunction [1] assails the December 20, 2007 Resolution [2] of
the Second Division of the Commission on Elections (COMELEC) in SPC No. 07-171 which
granted private respondent Anthony C. Tuddao's Petition for Correction of Manifest
Error and Annulment of Proclamation of petitioner Jonas Taguiam as the 12 th winning
candidate for the Sangguniang Panglungsod of Tuguegarao City, Cagayan. Also assailed
is the October 9, 2008 Resolution[3] of the COMELEC En Banc denying petitioner's
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 votes [6] 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
precincts[7] 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 respondent's 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]

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.

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 respondent's 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 respondent's allegations duly
substantiated with material evidence and confirmed the following:

A. With regard to the votes of private respondent:

Precinct No. SOVP ER No. Votes Votes in Votes

No. in SOVP ER Affected
1 69A/69B 15327 96026 27 27 0
79
2 87A/87B 10543 96026 13 13 0
99
3 192A/192B 10531 96028 20 19 -1
01
4 326A 10532 96029 43 53 +10
21
TOTAL +9

B. With regard to the votes of petitioner:

Precinct No. SOVP ER No. Votes Votes Votes

No. in SOVP in ER Affected
1 35A/36A 10543 96026 40 33 -7
47
2 61A/63A 10539 96026 55 50 -5
72
 3 264A/265A 10528 96028 39 29 -10
71
4 324A/325A 10533 96029 62 61 -1
20
5 328B 10527 96029 33 32 -1
24
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 12 th 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 Certiorari[11] 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 respondent's petition for correction of manifest errors in the
Election Returns and Statement of Votes despite its late filing.

Petitioner avers that private respondent's 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:

x x x x
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 offices" to
attain justice and the noble purpose of determining the true will of the electorate. [12]
In Jaramilla v. Commission on Elections [13] and Dela Llana v. Commission on Elections,
[14]
 the Court affirmed the COMELEC's 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 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 12 th 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 respondent's 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 COMELEC's 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 certiorari proceeding, 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.

EN BANC
[ G.R. NO. 166046, March 23, 2006 ]
MARGARITO C. SULIGUIN, PETITIONER, VS. THE COMMISSION ON
ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF
NAGCARLAN, LAGUNA, AND PROMULGATED: ECELSON C. SUMAGUE,
RESPONDENTS.

DECISION

CALLEJO, SR., J.:

This is a Petition for Certiorari under Rule 65 of the Revised Rules of Court

seeking to reverse the Resolution [1] of the Commission on Elections (Comelec) En
Banc in SPC No. 04-209 dated November 18, 2004 which denied petitioner Margarito
Suliguin's motion for reconsideration of the  July 21, 2004 Resolution [2] of the Comelec's
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 Letter [4] 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 petitioner's 6,605 votes.

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.

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.

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

On July 21, 2004, the Comelec (First Division) issued a Resolution [6] 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:
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]
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
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.

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

The petition is bereft of merit.

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.

Sections 3 [12] and 4 [13] 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]

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

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."

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 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.

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 candidate's 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 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 Comelec's reliance in the ruling of this Court in Bince, Jr.
v. Commission on Elections [21] is misplaced since, unlike the present petition, petitioner
therein was an affected candidate who filed his petition on time.

The argument of petitioner does not persuade.  The Court, in Bince, Jr. v. Commission
on Elections,[22] declared that:
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, we categorically declared
that:
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:
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. Macalañang, 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. 818-819).  (Italics ours)
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:
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).
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]
The Court made a similar pronouncement in Tatlonghari v. Commission on
Elections,[24] to wit:
The argument is devoid of merit.  For one thing, records indicate that
respondent's 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, respondent's proclamation was flawed right from the very 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:
"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 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.

x x x

"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.

x x x

"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]
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
candidate's 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]

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]

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

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.

SO ORDERED.

EN BANC
[ G.R. Nos. 111624-25, March 09, 1995 ]
ALFONSO C. BINCE, JR., PETITIONER, VS. COMMISSION ON
ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF PANGASINAN,
MUNICIPAL BOARDS OF CANVASSERS OF TAYUG AND SAN MANUEL,
PANGASINAN, AND EMILIANO MICU, RESPONDENTS.

DECISION

KAPUNAN, J.:

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 Sangguniang 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 (COCs) 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 ruled 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 candidate Alfonso C. Bince with 1,055 votes in the municipality of San Quintin,
Pangasinan. [2]

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 alleged manifest
errors committed in the computation thereof.

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.

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.

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, ruled “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]

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.

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 a Temporary
Restraining Order (TRO).

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 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 Micu 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:

(1) To RECONVENE 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;

(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]

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 to 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:

The Commission RESOLVED, as it hereby RESOLVES:

1. To direct Prosecutor Jose Antonio Guillermo and Supt. Primo Mina, vice-chairman and
secretary, respectively, of the Provincial Board of Canvassers of Pangasinan, to show
cause why they should not be declared in contempt for defying and disobeying the
Resolution of this Commission dated 09 July 1992, directing them to RECONVENE
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 Certificates of Canvass of the
Municipal Boards of Canvassers of Tayug and San Manuel, Pangasinan;

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;

3. To DIRECT the Provincial Board of Canvassers to reconvene 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]

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:

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
annulment of the petitioner's proclamation.

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 regularity 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:
 (1)    To RECONVENE 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;

(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. (Emphasis supplied)

The PBC thus had every reason to believe that the phrase ‘completed and corrected’
COCs could only refer to the nine (9) COCs for the nine municipalities, the 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, 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.

xxx                 xxx                    xxx

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), 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, xxx 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.

Hence, the COMELEC en banc had no jurisdiction to decide on the aforesaid motion to

annul the proclamation; consequently, its 29 July 1992 Resolution is null and void. For
this reason too, the COMELEC en banc Resolution of 6 June 1992 in SPC No. 92-208
resolving the private respondent's appeal from the ruling of the PBC with respect to the
COC of San Quintin is similarly void.

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 the
members of said Boards convened to 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-1” 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
respective Boards. 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 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 the 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.

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 respondent COMELEC referring to
‘the corrected 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 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.

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:

x x x 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).

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);

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 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'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.

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,
are hereby ANNULLED and SET ASIDE and respondent Commission on Elections is
DIRECTED to resolve the pending incidents conformably with the foregoing disquisitions
and pronouncements.

No costs.

SO ORDERED. [11]

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.

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

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.

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.
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]

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

On September 9, 1993, the COMELEC en banc granted the private respondent's 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 PBC is likewise ordered to proclaim the second elected member of the Sangguniang
Panlalawigan of the Sixth Legislative District of Pangasinan.

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.
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.

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.

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.

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 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 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 non-existent 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.

(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.

(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.

(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.

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

(h) The appeal shall be heard and decided by the Commission en banc. (Underscoring
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] we categorically declared that:

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 vs. Commission on Elections (178 SCRA 746), this Court had the
occasion to declare that:

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. 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 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). xxx (Juliano vs. Court of Appeals, supra, pp. 818-819). (Underscoring ours)

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:

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).

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.

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.

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.

Consequently, by margin of 72 votes, private respondent indisputably won the

challenged seat in the Sangguniang Panlalawigan of the sixth district of Pangasinan.
Petitioner's proclamation and assumption into public office was therefore 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.

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.

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

EN BANC

[G.R. No. 139357. May 5, 2000.]

ABDULMADID P.B. MARUHOM, Petitioner, v. COMMISSION ON ELECTIONS and

HADJI JAMIL DIMAPORO, Respondents.

DECISION

YNARES- SANTIAGO, J.:

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, 1999 1 dismissing
Comelec Case SPR No. 52-98. chanrobles.com : virtual law library

The COMELEC’s challenged order summarizes the relevant facts of the controversy
thus:chanrob1es virtual 1aw library

1. Petitioner and private respondent were both candidates for Mayor in the Municipality
of Maragong, 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;

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;

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 rejected, while in Precincts Nos. 12A, 23A1 and 6A, around 56 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 representative; chanrobles virtuallawlibrary:red

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

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. chanrobles virtuallawlibrary

x          x           x

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 v.
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 . .

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 . . .
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 . . .

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 respondent court to finish the revision of ballots, if possible, within 20
days from the commencement of the revision 9 . . .

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.

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 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 his Honorable Commission. chanrobles.com.ph : red

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. 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

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
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 13 and on October 5, 1998 private respondent filed his comment 14
thereto and thereafter all incidents were submitted for resolution of the court.

14. On November 10, 1998, the respondent court thru Honorable Presiding Judge
Moslemen T. Macarambon, issued the assailed order denying the petitioner’s motion
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

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

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 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

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 . . .

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 notion and ordering the Revision Committee to hold in abeyance the
scheduled revision of ballots on December 14, 15, 16, 17 and 18, 1998, etc. until
further order from the court. . . 20

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

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;

3.] failing to resolve the issues raised in SPR No. 52-98 which are sufficient legal bases
to dismiss Election Case No. 11-127.

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: chanrob1es virtual 1aw library

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: chanrob1es virtual 1aw library

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.

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 —

. . . [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 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

Section 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,
plebscite, 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 election Sumulong v. COMELEC 22 aptly points
out that —

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. chanrobles.com.ph:red

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.
23 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.

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

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. chanrobles virtual lawlibrary

We disagree.

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 to avert the revision ballots. These events, pointed out by private respondent
25 and borne by the record, show 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 forum-shopping warranting summary dismissal of
the protest;

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; chanrobles virtuallawlibrary:red

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;

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

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

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;

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 another
counsel. Considering that 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; 33

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;

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

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. chanrobles virtual lawlibrary

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 —

SECTION 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 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)

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.

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 petitioners claim is to open the ballot boxes in the protested precincts
followed by the examination, revision, recounting and re-appreciation 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. chanrobles virtuallawlibrary:red

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 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:
virtual 1aw library
chanrob1es

. . . 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, plebscite, 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 powers of COMELEC in the conduct of our elections . . . In the case a
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 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 . . .

. . . 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.chanrobles.com : chanrobles.com.ph

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." 43

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 —

SECTION 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-a-vis this Court’s pronouncement in Samad v. COMELEC
44 which states in no uncertain terms that —

As a general rule, the filing of an election protest or a petition for quo warranto
precludes the subsequent filing of a pre-proclamation controversy, or amounts to the
abandonment of one earlier filed, thus depriving the COMELEC of the authority to
inquire into and pass upon the title of the protestee or the validity of his proclamation.
The reason is that once the 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 proceedings. 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.

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 petition for quo warranto or an election protest but a petition to
annul a proclamation; (4) the filing of a quo warranto petition to annul a proclamation
controversy or was made ad cautelam; and (5) the proclamation was null and void. chanrobles virtua| |aw |ibrary

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

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

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.

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

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 can not be doubted.
Indeed, as reasoned by the COMELEC, the —
. . . 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. chanrobles virtual lawlibrary

Moreover —

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

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

SO ORDERED.

[ G.R. No. 123037, March 21, 1997 ]

TEODORO Q. PEÑA, PETITIONER, VS. HOUSE OF REPRESENTATIVES
ELECTORAL TRIBUNAL AND ALFREDO E. ABUEG, JR., RESPONDENTS.

DECISION

TORRES, JR., J.:

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. Peña 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, 195, upon canvassing the votes cast, the
Provincial Board of Canvassers of Palawan proclaimed the private respondent as the
winner.

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 vote-buying, 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 vote-buying 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.

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’.

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 would have garnered
the highest number of votes for the Office 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.

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]
Private respondent-Protestee Abueg filed an Answer With Affirmative Defense,
Counterclaim and Counter-Protest[3] on June 5, 1995, to which Peña 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.

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.

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:

“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.

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, ‘while 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. xxx 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. xxx’

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.’ 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)

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.

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 Peña’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.

Protestant alleges in his Opposition that Protestee has likewise failed to specify the 47
precincts he contests in his Counter-Protest. This omission merely renders Protestee’s
Counter-Protest 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 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 pronouncement as to costs.

SO ORDERED.”[6]

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

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.

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.”

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.

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.”
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.

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.

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:
“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.”
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.

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 assumptions of an elected
public official may, and will always be held up by petitions of this sort by the losing
candidate.

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 occurences 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.

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 proclamation of the
winner.

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]

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] xxx This is
as it should be, for the democratic system is good for the many although abhorred by a
few.

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 a grave abuse of discretion is clearly shown shall the Court interfere
with the electoral tribunal’s judgment. There is 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.
SO ORDERED.

FIRST DIVISION
[ G.R. No. 61260, February 17, 1992 ]
SERGIO BAUTISTA, PETITIONER, VS. HON. JOSE P. CASTRO, IN HIS
CAPACITY AS PRESIDING JUDGE OF BRANCH IX (QUEZON CITY,
COURT OF FIRST INSTANCE OF RIZAL, AND ROBERTO MIGUEL,
RESPONDENTS.

DECISION

MEDIALDEA, J.:
This petition seeks the reversal of the decision of respondent Court of First Instance (now
Regional Trial Court) of Rizal, Branch 9, Quezon City rendered in an appealed election
case and which decision proclaimed herein private respondent Roberto Miguel as the
duly elected Barangay Captain of Barangay Teachers Village East, Quezon City, in the
Barangay Elections held on May 17, 1982, with a plurality of twenty-four (24) votes over
herein petitioner Sergio Bautista.

Both the petitioner Sergio Bautista and private respondent Roberto Miguel were
candidates for the office above mentioned. After canvass, petitioner Bautista was
proclaimed the winner by the Barangay Board of Canvassers on May 17, 1982 with a
plurality of two (2) votes.

On May 25, 1982, Roberto Miguel filed a protest before the City Court of Quezon City,
(docketed as Election Case No. 82-408) on the ground of fraud and illegal acts or
practices allegedly committed by Bautista. The latter filed an answer but filed no counter-
protest.

It appears that the results of the election in all the four (4) voting centers in Bgy. Teachers
Village East, Quezon City were contested. A revision and recounting of the ballots was
conducted which resulted in a tie. The votes obtained by each of the protagonists were as
follows:

“1. In Voting Center No. 519:

MIGUEL         =          126 votes
BAUTISTA =          180 votes
Protestant-appellant contested the ruling of the lower Court on the following
ballots: Exhs. a, b, c, d, e, f, g, h, i, j, k, l, m, n, and o.
Protestee-appellee contested the ruling of the lower Court on the following
ballots: Exhs. 1, 2, 3, 4 and 5.
“2. In Voting Center No. 520:
MIGUEL         =          152 votes
BAUTISTA     =          122 votes
Protestant-appellant contested the ruling of the lower Court on the following
ballots: Exhs. P, Q and R.
“3. In Voting Center No. 521:
MIGUEL         =          150 votes
BAUTISTA     =          136 votes
Protestant-appellant contested the ruling of the lower Court on the following
ballots: Exhs. 6 and 7.
 “4. In Voting Center No. 522
MIGUEL         =          222 votes
BAUTISTA     = 212 votes
Protestant-appellant contested the ruling of the lower Court on the following
ballots: Exhs. AA, BB, BB-1, BB-2 and CC.
Protestee-appellee contested the ruling of the lower court on the following
ballots: Exhs. 8, 9, 9-a, 10, 10-a, 11, 11-a, 12, 12-a, 13, 14, 14-a, 15, 15-a, 16 and 16-a.
“5. Total Votes in all Voting Centers Nos. 519, 520, 521 and 522:
MIGUEL         =          650
BAUTISTA     =          650” (pp. 11-12, Rollo)

The trial court rendered a decision, the dispositive portion of which reads:

“ACCORDINGLY, Roberto Miguel is hereby declared to have received the same

number of votes as the protestee Sergio Bautista for the position of Bgy. Captain of Bgy.
Teachers Village East, Quezon City.” (p. 12, Rollo)

From this decision of the city court, protestant Roberto Miguel filed an appeal to the
Court of First Instance of Rizal.* On July 29, 1982, judgment was rendered on the appeal
which, as stated in the first portion of this decision, declared protestant Roberto Miguel
the duly elected Barangay Captain of Bgy. Teachers Village East, Quezon City and
setting aside as null and void the proclamation of protestee Sergio Bautista. The
dispositive portion of the decision reads:

“WHEREFORE, judgment is hereby rendered declaring and proclaiming

protestant-appellant ROBERTO MIGUEL as the duly elected Barangay Captain of
Barangay Teachers Village East, Quezon City, in the Barangay elections held on May 17,
1982 with a plurality of twenty-four (24) votes over and above his protagonist
protestee-appellee SERGIO BAUTISTA; setting aside as null and void the proclamation of
protestee-appellee as the elected Barangay Captain made by the Barangay Board of
Canvassers on May 17, 1982; sentencing protestee-appellee to pay protestant-appellant
the costs and expenses that the latter has incurred in this protest, in accordance with
Sec. 7 of COMELEC Resolution no. 1566, to wit:
P 25.00 for filing and research fee for petition of protest;
2,500.00 for cash deposit for expenses for revision of ballots;
25.00 for appellant docket and research fee;
50.00 for appeal bond deposit;
P2,600.00 Total
 “The Clerk of Court is hereby directed to furnish copies of this Decision to the
Commission on Elections, the Ministry of Local Governments, the Commission on Audit,
and the Secretaries of the Sangguniang Bayan and Sangguniang Barangay, in accordance
with Sec. 15 of Comelec Resolution No. 1566.”
“SO ORDERED.” (pp. 87-88, Rollo)

Petitioner Sergio Bautista filed the instant petition for review by certiorari on August 13,
1982 on the following questions of law:

1) Whether or not the supposed opinion of a person, who was brought by private
respondent but who was never presented as a witness, is competent and admissible
evidence to support the appellate court’s (CFI) conclusion that no less than eighteen (18)
votes cast in favor of your petitioner were written by one and the same person.

2) Whether or not a ballot which does not contain the signature of the poll chairman be
considered a valid ballot.

3) Whether or not respondent judge acted correctly in its appreciation of the contested
ballots (Exhibits “Z,” “Z-1,” “S,” “5,” “6,” “7.”

Considering that the term for the contested office had expired on June 7, 1988 , this
[1]

petition has become moot and academic. However, this case had already been submitted
for decision as early as December 19, 1984, prior to the expiration of the contested office.
Hence, We deem it proper to resolve this case on the merits and determine the true
winner of that elections.

Anent the first question, petitioner Bautista questions the reliance by respondent court on
the opinion of one Desiderio A. Pagui, who was never presented and qualified as an
expert witness. The report of Pagui allegedly appeared only in the records of the case on
file with the CFI which was attached in the Memorandum for Protestant Miguel.

The ballots involved in this objection of petitioner are exhibits “B” to “0” which all
pertained to voting center No. 519 and Exhibits “T,” “T-1,” “U,” “U-1,” “V” and “V-1”
from voting center No. 521. Respondent court ruled:

“b) Exhs. ‘B, C, D, E, F, G, H, I, J, K, L, M, N and O were counted by the lower court
for BAUTISTA, over the objection of protestant-appellant that these ballots were written
by a single hand. These ballots and the writings therein contained were the subject of
QUESTIONED HANDWRITINGS EXAMINATIONS and PDIL REPORT NO. 09-682 of Atty.
Desiderio A. Pagui, Examiner of Questioned Documents (Ret. Chief Document Examiner,
NBI), who was allowed by the lower court to assist it in the appreciation of ballots
contested by either party as having been written by a single hand and to take
photographs of the questioned ballots, his report and photographs having been
submitted by protestant-appellant to this Court accompanying his memorandum. The
pertinent portions of the FINDINGS in the said report read as follows:

‘Comparative examinations between and among the various letter designs, their structural
constructions and other characteristics appearing in Exhibits ‘B’ to ‘O’ inclusive, ‘T’, ‘T-
1’, ‘U’, ‘U-1,’ ‘V’ and ‘V-1’, reveal the existence of significant identifying handwriting
characteristics, more particularly in -

‘1. general style of writings;

‘2. size and proportion (sic) of letter designs; base and height alignments; and
relationship between adjacent letters;

‘3. lateral spacing; and initial and terminal strokes;

‘4. structural constructions and more perplexed elements embedded in the

structures of letter forms; and such characteristics are exemplified in the
following words/names: x x x; and the scientific evaluation of the
aforementioned writing characteristics includes the consideration of the
idiosyncrasies of natural variation as shown in the numerous similar letter
forms, although at some instances, the writer succeeded in having changed
the entire letter designs of certain letters (at different style), but somehow
certain significant writing characteristics reappeared in the various letters
during the process of writing, thus be able to connect one writing from the
others as having emanated from one source.’

‘The probative value of the above-mentioned writing characteristics are further

augmented by the presence of unusual structural construction of letter forms and/or in
combinations with adjacent letters, thus x x x.’

“The CONCLUSION of the said report states:

‘The questioned handwritings appearing in Exhs. ‘B’ to ‘O’, inclusive, ‘T’, ‘T-1, ‘U’, ‘U-
1’, ‘V’ and ‘V-1’, were WRITTEN BY ONE AND THE SAME PERSON.’

Notwithstanding this report, this Court has taken pains and meticulous effort to
examine with its naked eye the questioned ballots and handwritings, and compare the
same with each other in order to determine whether or not they were indeed written by
a single hand, and this Court is convinced beyond doubt that Exhs. B, C, D, E, F, G, H, K,
L, M, N and O, were written by a single hand, considering the remarkable similarity if not
almost identity of the writings on these ballots. The lower Court’s ruling on these twelve
(12) ballots is hereby reversed, and the twelve (12) votes for protestee-appellee based
thereon should be deducted from him.
With respect to Exhs. I and J, this Court entertains some doubt on their having
been written by a single hand, and therefore resolves the doubt in favor of the validity
of these two (2) ballots, as votes for protestee-appellee. Therefore, the ruling of the
lower Court counting Exhs. I and J for protestee-appellee stands.” (pp. 78-80, Rollo)

The contention of petitioner that respondent court relied on the report of an alleged
handwriting expert is misplaced. It should be noted that while respondent court
considered the report of Atty. Pagui, it did not rely solely on the said report. In the words
of respondent court, “(I)t has taken pains and meticulous effort to examine with its naked
eye the questioned ballots and handwritings and compare the same with each other ...” In
fact, in its effort to determine the true value of the contested ballots and in order not to
disenfranchise bona fide voters, it counted certain ballots in favor of petitioner which the
alleged handwriting expert found as written by only one person. It contradicted said
report as regards Exhibits “I,” “J,” “V” and “V-1.” The respondent court was circumspect
in relying on its own findings on whether or not these contested ballots were prepared by
one person. The ballots are the best evidence of the objections raised. Resort to
handwriting experts is not mandatory. Handwriting experts, while probably useful, are
not indispensable in examining or comparing handwriting, this can be done by the
COMELEC (in this case, the court taking cognizance of the appeal in this election
protest) itself (Bacobo v. COMELEC, G.R. No. 94173, November 21, 1990, 191 SCRA
576).

Petitioner also argues that respondent court misinterpreted and misapplied Section 36(f)
of Comelec Resolution No. 1539. It allegedly failed to take into consideration the other
provisions of said Section 36 of the Resolution.

We do not agree. Section 36 in its entirety provides:

“Sec. 36. Procedure in the casting of votes. (a) Identification of voter. - The

chairman shall check in the certified list of voters the name of the person offering to
vote. He shall then announce the voter’s name distinctly in a loud tone. If there is no
challenge, or if having been challenged and the question is decided in his favor, the
voter shall be allowed to vote and he shall affix his signature on the proper space of the
Voting Record (Comelec Form No. 5).
“(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 then fold the ballot once, and without removing the detachable coupon, 
deliver it to the voter, together with a ballpen.
“(c) Instructions to the voter. If a voter so requests, the poll clerk shall instruct
him on how to fill the ballot. The voter shall be reminded that he should fill the ballot
secretly and return it folded so as not to show the names of the candidates he voted for.
He shall also be warned not to use any other ballot; not to show the contents of his
ballot; not to put any mark thereon; not to erase, deface or tear the same; and not to
remove the detachable coupon.
“(d) Preparing the ballot. Upon receiving the ballot, the voter shall fill the ballot
secretly.
“(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 ri
ght hand thumbmark on the proper space in the voting record.
(4) The chairman shall than 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.
“(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 o
f the board and shall not be counted.”

The ballots concerned were marked Exhibits “BB,” “BB-1” and “BB-2” from voting
center No. 522. The respondent court ruled that:
 “b) Exhs. BB, BB-1 and BB-2 were counted by the lower court for BAUTISTA over
the objection of protestant-appellant that these ballots are not duly authenticated by
the absence of the signature of the Chairman of the Board of Election Tellers at the back
thereof. An examination of the back portion of these ballots reveals that it is completely
blank of any signature or initial. The mandatory requirement of authentication of ballots
is found in Sec. 14 of B.P. 222 and in Sec. 36 of COMELEC Resolution No. 1539, and the
legal consequence for the absence of such authentication is stated precisely in Sec. 36,
sub-par. (f), and generally in Sec. 152 of the 1978 Election Code, x x x.” (p. 84, Rollo)

The law (Sec. 14 of B.P. 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 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.

As regards exhibit “Z” and “Z-1,” respondent court reversed the decision of the trial court
which ruled that these were not marked ballots and hence, were valid votes for petitioner
BAUTISTA. In reversing the trial court, respondent court ruled that the presence of an
arrow with the words “and party,” was meant for no other purpose than to identify the
voter.

We agree. It cannot be said that these writings were accidental. As a general rule, a voter
must write on the ballot only the names of candidates voted for the offices appearing
thereon. Certain exceptions, however, were provided in Section 149 of the Revised
Election Code. For example, prefixes such as “Sr.,” “Mr.,” and the like and suffixes such
as “hijo,” “Jr.,” etc. will not invalidate the ballot (par. 5). Initials (paragraph 15),
nicknames or appellation of affection and friendship will not invalidate the ballot, if
accompanied by the name or surname of the candidate, and above all, if they were not
used as a means to identify the voter. Even under a liberal view, the words written on the
ballots under consideration cannot be considered as falling within the exception to the
rule. Consequently, they are irrelevant expressions that nullified the ballots. (Lloren v.
CA, et al., No. L-25907, January 25, 1967, 19 SCRA 110). Hence, respondent court
excluded Exhibits “Z” and “Z-1.”

Exhibit “S” (Voting Center No. 521) was excluded by respondent court as a vote for
petitioner. It held:

“a) Exh. S was counted by the lower court for BAUTISTA over the objection of
protestant-appellant that this ballot was found in the small compartment of the ballot
box for spoiled ballots and the said ballots appear to be in excess of the number of
ballots actually used. The records show that as reflected in the MINUTES OF VOTING
AND COUNTING OF VOTES found inside the ballot box, (1) there were 311 voters who
cast their votes, and the ballots actually used bear Serial Nos. 1-311, (2) 1 voter did not
return his/her ballot, 8 ballots were spoiled ballots and 302 ballots appreciated by the
Board of Election Tellers. The questioned ballot, Exh. S, together with blank questioned
ballot, was found by the Committee in the small compartment for spoiled ballots. It
does clearly appear that these two(2) ballots, one of which is Exh. S, are in excess of the
311 ballots actually used and must be considered as ‘EXCESS BALLOTS’ under Sec. 151 of
the 1978 Election Code and ‘shall not be read in the counting of votes.’ In view of the
foregoing considerations, the ruling of the lower court on Exh. S is hereby reversed, and
this ballot shall not be counted as a vote of protestee-appellee and therefore deducted
from him.” (pp. 81-82, Rollo)

We affirm.

Petitioner objects to respondent court’s ruling rejecting Exh. “5.” The word “BLBIOY”
was written in the space for Barangay Captain. “BIBOY,” petitioner’s nickname was duly
registered in his certificate of candidacy. Section 155(11) of the 1978 Election Code
provides:

“11. The use of nicknames and appellations of affection and friendship, if

accompanied by the first name or surname of the candidate, does not annul such vote,
except when they were used as a means to identify the voter, in which case the
whole ballot is invalid: Provided, That if the nickname used is unaccompanied by the
name or surname of a candidate and it is the one by which he is generally or popularly
known in the locality and stated in his certificate of candidacy, the same shall be
counted in favor of said candidate, if there is no other candidate for the same office
with the same nickname.”

While the name written was “BLBIOY,” there was no doubt that the voter intended to
vote for “BIBOY,” the nickname of which petitioner was popularly known and which
nickname was duly registered in his certificate of candidacy. Hence, the respondent
court’s decision as regards Exhibit “5” is reversed and the vote is counted for petitioner.

Exhibit “6” was invalidated by both respondent court and the city court as stray vote on
the ground that petitioner’s name, written as “Bo. Barangay Bautista” was placed on the
first line intended for councilmen. In the case of Farin v. Gonzales and CA, G.R. No. L-
36893, September 28, 1973, 53 SCRA 237, cited by petitioner, it was ruled that where the
name of a candidate is not written in the proper space in the ballot but is preceded by the
name of the office for which he is a candidate, the vote should be counted as valid for
such candidate. Such rule stems from the fact that in the appreciation of the ballot, the
object should be to ascertain and carry into effect the intention of the voter, if it could be
determined with reasonable certainty. In this case, while the name of petitioner was
written in the space for barangay councilman, his name was preceded by the name of the
office for which he is being elected, that as Punong Barangay or Barangay Captain (See
Exh. “6”). The respondent court ruled that what was placed before the name BAUTISTA
was Bo. Barangay and not Po. Barangay for Punong Barangay (or Barangay Captain).
We believe however that the voter’s intention to vote for BAUTISTA as Barangay
Captain was present and said vote should be counted in favor of petitioner.

Respondent court correctly invalidated Exhibit “7.” This ballot cannot be considered as a
vote for petitioner whose name was written seven (7) times in the ballot. The writing of a
name more than twice on the ballot is considered to be intentional and serves no other
purpose than to identify the ballot (Katigbak v. Mendoza, L-24477, February 28, 1967,
19 SCRA 543).

ACCORDINGLY, the decision of respondent court is MODIFIED as regards Exhibits

“5” and “6.” Private respondent Roberto Miguel is declared the duly elected Barangay
Captain of Barangay Teachers Village East, Quezon City, with a plurality of twenty-two
(22) votes. The temporary restraining order issued by this Court on December 2, 1982 is
hereby LIFTED.

SO ORDERED.

EN BANC
[ G.R. No. 129783, December 22, 1997 ]
MARCELINO C. LIBANAN, PETITIONER, VS. HOUSE OF
REPRESENTATIVES ELECTORAL TRIBUNAL AND JOSE T. RAMIREZ,
RESPONDENTS.
DECISION

VITUG, J.:

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.

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.

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.

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.

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.

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.

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.

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.

"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:
"'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 inspectors and shall constitute an 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.

"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]

In its assailed decision, the HRET ruled in favor of respondent Ramirez; it concluded:

"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
petitioner's motion for reconsideration, the HRET credited petitioner Libanan with thirty
(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:
"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.

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.

The Constitution 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 Laza
tin vs. HRET, [8] the Court has observed that -
"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]
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 x x x 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."

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 a remedy for such
abuse."

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 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.

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:

"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.

"xxx                                                                     
xxx                                                                               xxx

"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.
"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:
"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
Inspectors 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."
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]

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]
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 Meeting of the Committee on Suffrage and
Electoral Reforms read:

"THE CHAIRMAN. Yes, Congressman Mercado.

"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 CHAIRMAN. A serious election offense.

"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. RONO. Mr. Chairman.

"THE CHAIRMAN. Yes, Congressman Rono.

"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.

"HON. GARCIA. May I offer a suggestion?

"THE CHAIRMAN. Yes, Congressman Garcia.

"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.

"THE CHAIRMAN. Yes, Mr. Chairman.

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

"CHAIRMAN GONZALEZ. Counter side.

"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...

"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]
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:

Section 14 of B.P. 222:

"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.

"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."

Section 36 of COMELEC Resolution No. 1539:

"Sec. 36. Procedure in the casting of votes. - x x x

"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 then fold the ballot once, and
without removing the detachable coupon, deliver it to the voter, together with a ball
pen.
"x x x      x x x    x x x.

"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.

"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]

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.

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:
 "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."
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:
"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."
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 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."
It should be noteworthy that in an unsigned 3rd 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:

"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 inspectors
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:
 "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
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]
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 in 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 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:

"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]

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.

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.

One 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:
"x x x Mulling over this, we experience no qualmish feelings about the
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 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.

WHEREFORE, the instant petition is DISMISSED.

IT IS SO ORDERED.
N

EN BANC
[ G.R. No. 113107, July 20, 1994 ]
 WILMAR P. LUCERO, PETITIONER, VS. COMMISSION ON ELECTIONS
AND JOSE L. ONG, JR., RESPONDENTS.

[G.R. NO. 113509. JULY 20, 1994]

JOSE L. ONG, JR., PETITIONER, VS. COMMISSION ON ELECTIONS AND

WILMAR P. LUCERO, RESPONDENTS.

DECISION

DAVIDE, JR., J.:

After the issues had been joined in these consolidated cases, the Court resolved to give
due course to the petitions therein and to decide the cases on the merits. It can no longer
allow the parties to delay these cases. Their legal skirmishes, which have unduly
magnified uncomplicated issues, have effectively deprived the people of the Second
Legislative District of Northern Samar of representation in the House of Representatives
for more than two years now.

These cases are sequels to G.R. No. 105717, entitled "Jose L. Ong, Jr. vs. Commission on
Elections and Wilmar P. Lucero," which we finally resolved on 22 April 1993.  The[1]

petitioners were two of the five candidates  for the Second Legislative District of
[2]

Northern Samar in the synchronized national and local elections held on 11 May 1992.

The canvass of the Provincial Board of Canvassers (PBC) of Northern Samar credited
Jose L. Ong, Jr. with 24,272 votes and Wilmar P. Lucero with 24,068 votes, or a lead by
Ong of 204 votes. However, this tally did not include the results of Precinct No. 7 of the
municipality of Silvino Lobos, where the submitted election returns had not been
canvassed because they were illegible; of Precinct No. 13 of Silvino Lobos, where the
ballot boxes were snatched and no election was held; and of Precinct No. 16, also of
Silvino Lobos, where all copies of the election returns were missing.

On 22 May 1992, Lucero asked the Commission on Elections (COMELEC), in SPA No.
92-282, to:

“1. Forthwith order Respondent Provincial Board of Canvassers for Northern

Samar to suspend the proclamation of Private Respondent Jose L. Ong, Jr.;
2. Direct Respondent Provincial Board of Canvassers for Northern Samar to
correct the Certificate of Canvass (CEF 20) for Las Navas and, accordingly, to correct the
total votes so far counted by it for Petitioner from 24,068 to 24,088, thus reducing the
margin it found in favor of Private Respondent Jose L. Ong, Jr. from 204 to 184 votes
only;
3. Order a special election in Precinct 13, Barangay Gusaran, Silvino Lobos,
pursuant to Section 6 of the Omnibus Election Code;
4. Order a recount of the votes for Representative of the Second District of
Northern Samar in Precinct 16, Barangay Tubgon, and Precinct 7, Barangay Camayaan,
both of Silvino Lobos, pursuant to Section 234 of the Omnibus Election Code;
5. Order a recount of the votes for Representative in the 52 precincts herein
above enumerated in order to correct ‘manifest errors’ pursuant to Section 15 of
Republic Act 7166 and for this purpose order the impounding and safekeeping of the
ballot boxes of all said precincts in order to preserve the integrity of the ballots and
other election paraphernalia contained therein."[3]

On 2 June 1992, the COMELEC, acting on Lucero's urgent manifestation, directed the
PBC to desist from reconvening until further orders.

On 8 June 1992, Ong moved to lift the suspension of the proceedings by the PBC, which
Lucero opposed on 10 June 1992 on the ground that the canvass could not be completed
even if the PBC were to reconvene because no election was held in Precinct No. 13
(Barangay Gusaran) of Silvino Lobos and there was no canvassing of the votes in
Precinct No. 7 (Barangay Camayaan) and Precinct No. 16 (Barangay Tubgon) both of
Silvino Lobos.

On 13 June 1993, the COMELEC en banc promulgated a resolution, the dispositive

portion of which reads:

"Accordingly, the Commission hereby orders the Provincial Election, Supervisor of

Northern Samar to bring to the Commission within three (3) days from receipt hereof
the ballot boxes from Precinct 7 and 16 of Silvino Lobos, to be escorted by
representatives from the petitioner and the respondents as well as other parties who
have an interest to protect, and too notify said parties hereof. The Municipal Treasurer
of said town is directed to turn over custody of said ballot boxes to the Provincial
Election Supervisor, and the keys thereof shall likewise be turned over by the
appropriate officials in custody thereof to the PES, who shall in turn give one key for
each ballot box to the duly authorized representatives of the petitioner and the
respondent.
 The Commission likewise orders the Election Registrar of Silvino Lobos, Northern
Samar, and the Chairman and members of the Boards of Election Inspectors of Precincts
7 and 16 of said municipality to appear before the Commission within three (3) days
from receipt hereof."

Below the signatures of the Chairman and the six Commissioners, however, Chairman
Christian S. Monsod and Commissioners Haydee B. Yorac, Dario C. Rama, and
Regalado E. Maambong directed as follows:

"We vote in favor of this resolution except that portion which denied the
correction of the Certificate of Canvass for Las Navas. Correction of the Certificate of
Canvass for Las Navas is in order in view of the testimony of the election registrar of Las
Navas to the effect that Wilmar Lucero garnered 2,537 votes for Las Navas and not
2,517. Petition for correction was duly filed by Lucero with the Provincial Board of
Canvassers of Northern Samar on May 19, 1992. The Provincial Board of Canvassers of
Northern Samar is therefore directed to retabulate the total number of votes for Las
Navas for Lucero and enter the same in the Provincial Certificate of Canvass." [4]

On 15 June 1992, Lucero filed an urgent motion to constitute a Special Board of Election
Inspectors (SBEI) to count the votes of Precincts Nos. 7 and 16 of Silvino Lobos. [5]

On 20 June 1992, Ong, in a special civil action for certiorari filed with this Court and
subsequently docketed as G.R. No. 105717, questioned the order for the recount of
ballots in Precincts No. 7 and 16. Despite the pendency of this petition,
the COMELEC ordered the recount of the ballots in Precinct No. 16 by a SBEI which
recorded 43 votes for Lucero and 2 votes for Ong. [6]

On 25 June 1992, this Court issued in G.R. No. 105717 a temporary restraining order
against the implementation by the COMELEC of its Order of 2 June 1992 and its
Resolution of 13 June 1992.

On 23 December 1992, this Court promulgated its decision in G.R. No. 105717,  the [7]

dispositive portion of which reads:

"WHEREFORE, the petition for certiorari is GRANTED and a writ of preliminary

injunction is hereby ISSUED directing the COMELEC to CEASE and DESIST from
implementing its order of June 2, 1992, and its resolution dated June 13, 1992, and the
same are hereby declared NULLIFIED. Consequently, the election returns based on the
recounted ballots from Precinct 16 are hereby DISCARDED and in lieu thereof, authentic
returns from said precinct should instead be made a basis for the canvassing. The
Provincial Board of Canvassers of Northern Samar is hereby directed to PROCEED WITH
DISPATCH in the canvassing of ballots until completed and to PROCLAIM the duly
elected winner of the congressional seat for the Second District of Northern Samar.
This decision is immediately executory." [8]

Acting on the motions for reconsideration and clarification respectively filed by

the COMELEC and Lucero, this Court, on 22 April 1993, modified  its aforesaid
[9]

disposition in G.R. No. 105717 as follows:

"IN VIEW OF ALL THE FOREGOING, the dispositive portion of the December 23,
1992 Decision is hereby MODIFIED to read as follows:

'WHEREFORE, THE PETITION IS GRANTED. THE JUNE 2, 1992 ORDER OF

RESPONDENT COMMISSION ON ELECTIONS IN SPA NO. 92-282 IS HEREBY
ANNULLED AND SET ASIDE. ITS JUNE 13, 1992. RESOLUTION THEREIN IS
LIKEWISE ANNULLED AND SET ASIDE INSOFAR AS IT AFFECTS PRECINCT
NO. 7 OF SILVINO LOBOS, THE RECOUNT OF VOTES IN THE 52 OTHER
PRECINCTS AND THE CORRECTION OF THE CERTIFICATE OF CANVASS OF
LAS NAVAS, BUT IS AFFIRMED WITH RESPECT TO THE ISSUE OF HOLDING
A SPECIAL ELECTION IN PRECINCT NO. 13 AND THE RECOUNT OF THE
BALLOTS IN PRECINCT NO. 16.

THE RESPONDENT COMMISSION ON ELECTIONS IS HEREBY DIRECTED TO

ASSIGN SPA NO. 92-282 TO ANY OF ITS DIVISIONS PURSUANT TO ITS RULE
ON RAFFLE OF CASES FOR IT TO RESOLVE THE PRE-PROCLAMATION
ISSUES THEREIN, TAKING INTO ACCOUNT THE ABOVE PRONOUNCEMENTS
AND THE EXCEPTIONS PROVIDED FOR IN SECTION 15 OF R.A. NO. 7166.

WHENEVER WARRANTED BY THE CIRCUMSTANCES, THE COMMISSION

MAY (A) CALL A SPECIAL ELECTION IN PRECINCT NO. 13 OF SILVINO
LOBOS, NORTHERN SAMAR, AND (B) RECONVENE THE SPECIAL MUNICIPAL
BOARD OF CANVASSERS AND THE SPECIAL PROVINCIAL BOARD OF
CANVASSERS IT HAD EARLIER CONSTITUTED OR CREATE NEW ONES.

ALL THE FOREGOING SHOULD BE DONE WITH PURPOSEFUL DISPATCH TO

THE END THAT THE WINNING CANDIDATE FOR CONGRESSMAN
REPRESENTING THE SECOND CONGRESSIONAL DISTRICT OF NORTHERN
SAMAR MAY BE PROCLAIMED AS SOON AS POSSIBLE.'” [10]

As to the certificate of canvass of the municipality of Las Navas, this Court explicitly
stated:
 "The correction of the certificate of canvass of Las Navas is likewise in order. Even
though a pre-proclamation issue is involved, the Correction of the manifest error is
allowed under Section 15 of R.A. No. 7166." [11]

Conformably with the aforesaid modified judgment in G.R. No. 105717, SPA No. 92-282
was raffled to the First Division of the COMELEC which conducted hearings thereon and
received the arguments and evidence of both parties who then submitted their respective
memoranda on 25 June 1994. However, during the consultations on the case by the
Members of the First Division, the concurrence of at least two of them could not be
obtained; accordingly, pursuant to the COMELEC Rules, the case was elevated for
proper disposition to the COMELEC en banc to which the parties submitted their
respective memoranda on 19 November 1993. [12]

On 7 January 1994, the COMELEC en banc promulgated a resolution  whose dispositive

[13]

portion reads as follows:

"1.  To direct the special Provincial Board of Canvassers for Northern Samar (a) to
include in the municipal certificate of canvass of Silvino Lobos the forty-three (43) votes
of petitioner Lucero and the two (2) votes of private respondent Ong as reflected in the
election returns of Precinct No. 16 (Barangay Tubgon) prepared by the special Board of
Election Inspectors constituted by the Commission to recount the votes (ballots) in said
precinct, as canvassed by the special Municipal Board of Canvassers for Silvino Lobos;
(b) to include in the municipal certificate of canvass of Silvino Lobos, the sixty-one (61)
votes of private respondent Ong and 29, 30, or 31 votes of petitioner Lucero as reflected
in the election returns (MBC Copy submitted as 'Comelec Copy') of Precinct No. 7
(Barangay Camaya-an), as canvassed by the special Municipal Board of Canvassers for
Silvino Lobos; (c) to retabulate the total number of votes of petitioner Lucero for the
Municipality of Las Navas and to enter in the provincial certificate of canvass the correct
total which is two thousand five hundred thirty-seven (2,537) as reflected in the
Statement of Votes (C.E. Form 20-A) prepared and submitted by the Municipal Board of
Canvassers for Las Navas; and (d) to submit to the Commission a computation of the
votes of the contending parties including therein all the votes of petitioner Lucero (with
alternative totals) and private respondent Ong, in Precinct Nos. 7 and 16 of Silvino Lobos
and the total votes of petitioner Lucero in the Municipality of Las Navas as corrected.
However, under no circumstances should the Board proclaim any winning candidate
until instructed to do so by the Commission;
2. To issue an Order calling for a special election in the last remaining Precinct
No. 13 (Barangay Gusaran) of the Municipality of Silvino Lobos if justified by the result
of the canvass by the Provincial Board of Canvassers for Northern Samar, and to notify
the parties of the schedule of election activities for that precinct; and
3. After including in the tabulation the results of the special election of Precinct
No. 13, to decide the issue of the recount of the votes (ballots) of Precinct No. 7 of
Silvino Lobos, pursuant to Section 236 of the Omnibus Election Code, to resolve the
discrepancy of the votes of petitioner Lucero in the same return, if such discrepancy of
votes of the candidates concerned would affect the over-all results of the election after
the totality of the votes of the contending parties shall have been determined."

Both Lucero and Ong have come to this Court by way of separate special civil actions
for certiorari to challenge the Resolution.

In G.R. No. 113107, Lucero maintains that (1) the count of the ballots in Precinct No. 7
of Silvino Lobos must be unconditional because the election returns therefrom are
invalid; and (2) his chances in the special election in Precinct No. 13 of Silvino Lobos
would be spoiled if the returns for Precinct No. 7 were to be included beforehand in the
canvass.

In G.R. No. 113509, Ong questions (1) the authority of the COMELEC to order the
correction of the alleged manifest error in the Municipal Certificate of Canvass of Las
Navas despite the absence of any appeal; and (2) the authority of the COMELEC to call
for a special election in Precinct No. 13 almost two years after the regular election.

As we see it, the core issues in these consolidated cases are:

(1) Whether there should first be a count of the ballots of Precinct No. 7 of Silvino
Lobos before determining the necessity of holding a special election in Precinct No. 13
of Silvino Lobos;
(2) Whether the COMELEC acted with grave abuse of discretion in ordering the
correction of the alleged manifest error in the Municipal Certificate of Canvass of Las
Navas; and
(3) Whether the COMELEC acted with grave abuse of discretion in calling for a
special election in Precinct No. 13 after almost two (2) years, or more specifically after
one (1) year and ten (10) months, following the day of the synchronized elections.

We shall take up these issues seriatim.

I.

The answer to the first issue is in the affirmative.

We find the COMELEC's disposition regarding Precinct No. 7 to be unclear. In the first
paragraph of the dispositive portion of the challenged resolution, it directs the Provincial
Board of Canvassers "to include in the municipal certificate of canvass of Silvino Lobos
the sixty-one (61) votes of private respondent Ong and 29, 30, or 31 votes of petitioner
Lucero as reflected in the election returns (MBC copy submitted as "COMELEC Copy")
of Precinct No. 7 (Barangay Camaya-an), as canvassed by the special Municipal Board of
Canvassers for Silvino Lobos," and "to submit to the Commission a computation of the
votes of the contending parties including therein all the votes of petitioner Lucero (with
alternative totals) and private respondent Ong, in Precinct Nos. 7 and 16 of Silvino
Lobos...." On the other hand, in the fourth paragraph of the said dispositive portion, it
orders the Provincial Board of Canvassers, after "including in the tabulation the results of
the special election of Precinct No. 13," to "decide the issue of the recount of the votes
(ballots) of Precinct No. 7 of Silvino Lobos, pursuant to Section 236 of the Omnibus
Election Code [and] to resolve the discrepancy of the votes of petitioner Lucero in the
same return, if such discrepancy of votes of the candidate concerned would affect the
over-all results of the election after the totality of the votes of the contending parties shall
have been determined."

Obviously, instead of ordering an outright recount of the ballots of Precinct No. 7, the
COMELEC would first give full faith and credit to the questioned election returns
thereof, which it describes as the "Comelec Copy," and, accordingly, direct the PBC to
include in the municipal certificate of canvass of Silvino Lobos the 61 votes for Ong and
the uncertain votes for Lucero -- 29, 30, or 31. The recount would only be made if after a
special election in Precinct No. 13 shall have been held, it shall be determined that such a
recount would be necessary.

We fail to grasp the logic of the proposition. First, it is clear to us that the COMELEC,
which has in its possession the so-called "Comelec Copy" of the questioned election
returns of Precinct No. 7 and heard the witnesses who testified thereon, doubts the
authenticity of the so-called "Comelec Copy" of the election returns of Precinct No. 7;
 hence, it authorizes the PBC to decide the issue of a recount "pursuant to Section 236
[14]

of the Omnibus Election Code." Since it doubts such authenticity, it could not, without
arbitrariness and abuse of discretion, order the inclusion of the "votes" of Ong and Lucero
found in the doubtful "Comelec Copy" of the election returns in the municipal certificate
of canvass. Second, it is an uncontroverted fact that an election was held in Precinct No.
7. None was held in Precinct No. 13 for reasons the parties fully knew. Pursuant to
Section 6 of the Omnibus Election Code (B.P. Blg. 881), a special election may be held
in Precinct No. 13 only if the failure of the election therein "would affect the result of the
election." This "result of the election" means the net result of the election in the rest of
the precincts in a given constituency, such that if the margin of a leading candidate over
that of his closest rival in the latter precincts is less than the total number of votes in the
precinct where there was failure of election, then such failure would certainly affect "the
result of the election"; hence, a special election must be held. Consequently, the holding
of a special election in Precinct No. 13 can only be determined after the votes in Precinct
No. 7 shall have been included in the canvass by the Provincial Board of Canvassers.

We may further state that the so-called "Comelec Copy" of the election returns of
Precinct No. 7 can by no means be validly included in the municipal canvass. The
summary of the evidence in the "preparation" of the election returns of Precinct No. 7,
both in the challenged Resolution and in the separate Concurring and Dissenting Opinion
of Commissioners Gorospe and Claravall, leaves no room for doubt that there was
actually no counting of the votes in Precinct No. 7. Quoted in the challenged Resolution
is a portion of the testimony of Sabina T. Jarito, Precinct Chairman of Precinct No. 7,
which clearly shows that on questions by COMELEC Chairman Christian S. Monsod and
Commissioner Vicente B. de Lima, the witness candidly admitted that the election returns
were prepared at the "munisipyo" or municipal building and not at the polling place of
Precinct No. 7 in barangay Camaya-an.  This "munisipyo" is located at the poblacion of
[15]

Silvino Lobos. Under the law, the board of election inspectors shall prepare the election
returns simultaneously with the counting of votes in the polling place.  There is no
[16]

evidence whatsoever that the COMELEC had, for valid reasons, authorized the transfer
of venue of the counting of the votes of Precinct No. 7 from the polling place in barangay
Camaya-an to the municipal building and that the counting did in fact take place at the
latter. Although in the Concurring and Dissenting Opinion of Commissioners Gorospe
and Claravall there is a reference to Exhibit "E," the Joint Affidavit of Sabina Jarito and
Mevilyn Surio wherein they declare that after the voting the Board of Election Inspectors
unanimously approved to transfer the counting of votes to the Municipal Building in the
Poblacion of Silvino Lobos, which was allegedly concurred in by all the watchers of
political parties and the candidates present, the alleged "counting" at the municipal
building was denied by no less than the Municipal Election Officer of Silvino Lobos,
Antonio Tepace, and the Municipal Treasurer thereof, Mr. Gabriel Basarte, in their
affidavits marked as Exhibit "F" and Exhibit "G," respectively. [17]

Since there was no counting of the votes of Precinct No. 7, no valid election returns could
be made and any copy of election returns purporting to come therefrom is a fabrication.
A recount thereof, which presupposes a prior count, would obviously be unwarranted.

Only a count then of the votes of Precinct No. 13 would heretofore be in order. Sections
234, 235, and 236 of the Omnibus Election Code are thus still inapplicable. And, in the
light of what we stated before in relation to the holding of a special election, such a count
of the votes of Precinct No. 7 must, perforce, precede the special election in Precinct No.
13.

II.

Ong's first grievance in G.R. No. 113509 is without merit.

The order of the COMELEC for the correction of the manifest error in the municipal
certificate of canvass of Las Navas was made pursuant to the declaration made by this
Court in G.R. No. 105717 (Ong vs. COMELEC)  that: [18]

"The correction of the certificate of canvass of Las Navas is likewise in order. Even
though a pre-proclamation issue is involved, the correction of the manifest error is
allowed under Sec. 15 of R.A. No. 7166."

Since no motion for reconsideration was filed in that case, the decision therein became
final and entry of judgment was made on 4 August 1993. Consequently, Ong cannot now
re-litigate the issue of the correction of the certificate of canvass of Las Navas.

III.

On the authority of the COMELEC to order the holding of a special election, Section 6 of
the Omnibus Election Code provides:

"SEC. 6. Failure of election. -- If, on account of force majeure, violence, terrorism,

fraud, or other analogous causes the election in any polling place has not been held on
the date fixed, or had been suspended before the hour fixed by law for the closing of
the voting, or after the voting and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such election results in a failure to
elect, and if in any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or continuation of
the election not held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect."

The first paragraph of Section 4 of R.A. No. 7166 likewise provides:

"SEC. 4. Postponement,  Failure of Election and Special Elections. -- The

postponement, declaration of failure of election and the calling of special elections as
provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the
Commission sitting en banc by a majority votes of its members. The causes for the
declaration of a failure of election my occur before or after the casting of votes or on
the day of the election."
There are, therefore, two requisites for the holding of special elections under Section 6 of
the Omnibus Election Code, viz., (1) that there is a failure of election, and (2) that such
failure would affect the results of the election. The parties admit that the failure of the
election in Precinct No. 13 was due to ballot-box snatching and do not dispute the finding
of the COMELEC as to the necessity and inevitability of the holding of a special election
in said precinct, even if the result of Precinct No. 7 should be based on the questionable
"Comelec Copy" of its election returns. The COMELEC held:

"Based on the adjudged correction of the votes in favor of petitioner Lucero in

the Municipality of Las Navas, the results of the recount of votes (ballots) of Precinct No.
16 (Silvino  Lobos), and the votes reflected in the available copy of the election returns
for Precinct No. 7 (Silvino  Lobos), it is safe to predict that when the special Provincial
Board of Canvassers will reconvene to sum up the votes of the contending parties, the
original lead of private respondent Ong of two hundred four (204) votes against
petitioner Lucero -- 24,272 as against 24,068 -- will be reduced to either 175 or 173
depending on whether Lucero will be credited a low of 29 or a high of 31 votes as
reflected in the election returns of Precinct No. 7.
Without preempting the exact figures which only the special Provincial Board of
Canvassers can correctly determine, undoubtedly it is inevitable that a special election
will have to be held in Precinct No. 13 (Barangay Gusaran) of the Municipality of Silvino
Lobos.
...
Given the established lead of private respondent Ong over petitioner Lucero, We
answer in the affirmative. According to Comelec records, the number of registered
voters in Precinct No. 13 is two hundred thirteen (213). Since the lead of respondent
Ong is less than the number of registered voters, the votes in that precinct could affect
the existing result because of the possibility that petitioner Lucero might get a majority
over Ong in that precinct and that majority might be more than the present lead of
Ong." [19]

On the basis of the additional votes credited so far to the parties,  the following
[20]

computation is in order: to Ong's 24,272 votes will be added 2 more from Precinct No.
16, to make a total of 24,274, while to Lucero's 24,068 votes will be added 20 more from
Las Navas and 43 from Precinct No. 16, for a total of 24,131. Ong's earlier lead will thus
be reduced to 143, which is admittedly less than the 213 registered voters in Precinct No.
13.[21]
The two requirements then for a special election under Section 6 of the Omnibus Election
Code have indeed been met.

In fixing the date of the special election, the COMELEC should see to it that: (1) it
should be not later than thirty days after the cessation of the cause of the postponement or
suspension of the election or the failure to elect, and (2) it should be reasonably close to
the date of the election not held, suspended, or which resulted in failure to elect. The first
involves questions of fact. The second must be determined in the light of the peculiar
circumstances of a case. In the instant case, the delay was not attributable to the poor
voters of Precinct No. 13 or to the rest of the electorate of the Second Legislative District
of Northern Samar. The delay was, as stated in the opening paragraph of
this ponencia, primarily caused by the legal skirmishes or maneuvers of the petitioners
which muddled simple issues. The Court takes judicial notice of the fact that G.R. No.
113509 is the third case Ong has brought to this Court.  Considering then that the
[22]

petitioners themselves must share the blame for the delay, and taking into account the
fact that since the term of office of the contested position is only three years, the holding
of a special election in Precinct No. 13 within the next few months may still be
considered "reasonably close to the date of the election not held." Ong's postulation
should then be rejected.

In the course of the deliberations on these cases, the Court considered the possible
application, by analogy, of Section 10, Article VII of the 1987 Constitution providing that
no special election in the event of a vacancy in the Offices of the President and Vice
President "shall be called if the vacancy occurs within eighteen months before the date of
the next presidential election," and of the second paragraph of Section 4 of R.A. No. 7166
which provides:

"In case a permanent vacancy shall occur in the Senate or House of

Representatives at least one (1) year before the expiration of the term, the Commission
shall call and hold a special election to fill the vacancy not earlier than sixty (60) days nor
longer than ninety (90) days after the occurrence of the vacancy. However, in case of
such vacancy in the Senate, the special election shall be held simultaneously with the
next succeeding regular election."

A view was expressed that we should not hold the special election because the underlying
philosophy for the prohibition to hold the special election if the vacancy occurred within
a certain period before the next presidential election or the next regular election, as the
case may be, is obviously the avoidance of the expense to be incurred in the holding of a
special election when a regular election is, after all, less than a year away. The Court
ultimately resolved that the aforesaid constitutional and statutory proscriptions are
inapplicable to special elections which may be called under Section 6 of the Omnibus
Election Code. First, the special election in the former is to fill permanent vacancies in
the Office of the President, Vice President, and Members of Congress occurring after the
election, while the special election under the latter is due to or by reason of a failure of
election. Second, a special election under Section 6 would entail minimal costs because it
is limited to only the precincts involved and to the candidates who, by the result of the
election in a particular constituency, would be affected by the failure of election. On the
other hand, the special election for the Offices of the President, Vice President, and
Senators would be nation-wide, and that of a Representative, district-wide. Third, Section
6, when specifically applied to the instant case, presupposes that no candidate had been
proclaimed and therefore the people of the Second Legislative District of Northern Samar
would be unrepresented in the House of Representatives until the special election shall
ultimately determine the winning candidate, such that if none is held, they would have no
representation until the end of the term. Under the aforesaid constitutional and statutory
provisions, the elected officials have already served their constituencies for more than
one-half of their terms of office. Fourth, if the law had found it fit to provide a specific
and determinate time-frame for the holding of a special election under Section 6, then it
could have easily done so in Section 4 of R.A. No. 7166.

Another serious obstacle to Ong's proposition is that, considering the COMELEC's

disposition of Precinct No. 7 in the challenged Resolution, he would then be declared and
proclaimed the duly elected Representative of the Second Legislative District of Northern
Samar despite the fact that as earlier observed, there was no counting of the votes of
Precinct No. 7, and the results of the district elections for Representative would be
affected by the failure of the election in Precinct No. 13. To accept the proposition is to
allow a proclamation based on an incomplete canvass where the final result would have
been affected by the uncanvassed result of Precinct No. 7 and by the failure of the
election in Precinct No. 13 and to impose upon the people of the Second Legislative
District of Northern Samar a Representative whose mandate is, at the very least,
uncertain, and at the most, inexistent.

IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered:

I.     DISMISSING, for lack of merit, the petition in G.R. No. 113509; and

II.    In G.R. No. 113107, DIRECTING the respondent Commission on Elections to:
(1)  Reconvene, in its main office in Manila, within five (5) days from notice
hereof, the Special Board of Canvassers of the municipality of Silvino Lobos, Northern
Samar, which shall then, as a special Board of Election Inspectors of Precinct No. 7 of
said municipality, within forty-eight (48) hours from its reconvening, count the ballots of
said Precinct No. 7, and deliver to the special Provincial Board of Canvassers of the said
Province a copy of the election returns;
 (2)  Reconvene, in its main office in Manila, within the same period as
aforestated, the special Provincial Board of Canvassers of Northern Samar which shall
then, within seventy-two (72) hours from its reconvening:

(a)   Include in the Municipal Certificate of Canvass of Silvino Lobos (1) the

total number of votes for petitioner Wilmar P. Lucero and for petitioner
Jose L. Ong, Jr., respectively, in Precinct No. 7 of Silvino Lobos as
recorded in the election returns submitted by the aforementioned special
Municipal Board of Canvassers, and (2) the forty-three (43) votes for
petitioner Wilmar P. Lucero and the two (2) votes for petitioner Jose L.
Ong, Jr. as reflected in the election returns of Precinct No. 16 (Barangay
Tubgon) prepared, after a recount of the ballots, by the special Board of
Canvassers; and after such inclusions to enter the new totals of the votes
for the petitioners in the Certificate of Provincial Canvass;

(b)   Retabulate the total number of votes for Wilmar P. Lucero for the
Municipality of Las Navas, Northern Samar, which shall be two
thousand and five hundred thirty-seven (2,537) as reflected in the
Statement of Votes (C.E. Form 20-A) prepared and submitted by the
Municipal Board of Canvassers of Las Navas, and to enter the same in
the Certificate of Provincial Canvass;

(c)   After the accomplishment of all the foregoing, to sum up anew in the

Certificate of Provincial Canvass the canvassed municipal certificates of
canvass of all the municipalities of the Second Legislative District of
Northern Samar and if the same would establish that the difference in
votes between petitioner Wilmar P. Lucero and petitioner Jose L. Ong,
Jr. is less than two hundred and thirteen (213), hence the failure of the
election in Precinct No. 13 would unavoidably and inevitably affect then
the result of the election, to report to the Commission on Elections such
fact and to furnish the latter with a certified photocopy of the Certificate
of Provincial Canvass;

(3) Within three (3) days after receipt of the aforesaid report from the special
Provincial Board of Canvassers, to CALL a special election in Precinct No. 13 of Silvino
Lobos, which shall be held not later than thirty (30) days from such call; a copy of the
election returns of said special election shall forthwith be transmitted to the Special
Provincial Board of Canvassers of Northern Samar, which shall then enter the results
thereof in its canvass and make a final summation of the results in the Certificate of
Provincial Canvass, and thereafter, pursuant to the Omnibus Election Code, pertinent
election laws and rules and resolutions of the Commission, proclaim the winning
candidate for Representative of the Second Legislative District of Northern Samar.
If for any reason whatsoever it would not be possible to immediately reconvene
the Special Municipal Board of Canvassers of Silvino Lobos and the Special Provincial
Board of Canvassers of Northern Samar, the COMELEC may create new ones.

No pronouncements as to costs.

SO ORDERED.