TAN v.
COMMISSION ON ELECTIONS o Tan then filed an appeal with the COMELEC -> COMELEC
G.R. No. 166143-47 | Nov. 20, 2006 | Velasco
SUMMARY: Petitioner Tan was a gubernational candidate for Sulu province
and filed with COMELEC four petitions for the Declaration of Failure of
Elections for several municipalities alleging systematic fraud, terrorism, illegal
schemes, etc. Prior to this, Tan also filed four other petitions (1 for the
exclusion of election return and 3 to exclude certificates of canvass). These
were all dismissed. Tan then filed an appeal with the COMELEC. COMELEC
then issued an Order directing a suspension of the proceedings. COMELEC
then ruled that there was no failure of elections in the named municipalities.
Hence, this petition. The Court ruled COMELEC had jurisdiction to entertain
the election protests which were filed 10 days after the proclamation of the
election results and that they had jurisdiction to simultaneously entertain pre-
proclamation controversies and election protests.
DOCTRINE: A petition to suspend tolls the 10-day period for filing an election
protest from running, while a petition to annul interrupts the running of the
period. In other words, in a Section 248 petition to suspend where the 10-day
period did not start to run at all, the filing of a Section 250 election contest
after the tenth (10th) day from proclamation is not late. On the other hand, in a
Section 248 petition to annul, the party seeking annulment must file the
petition before the expiration of the 10-day period.
There is no law or rule prohibiting the simultaneous prosecution or
adjudication of pre-proclamation controversies and elections protests.
Allowing the simultaneous prosecution scenario may be explained by the fact
that pre-proclamation controversies and election protests differ in terms of the
issues involved and the evidence admissible in each case and the objective
each seeks to achieve.
FACTS:
 Petitioner Tan and Burahan were the gubernatorial and vice-
gubernational candidates, respectively, of Sulu Province in the 2004
national and local elections.
o They filed with the COMELEC 4 Petitions for Declaration of
Failure of Elections in the towns of Maimbung, Luuk, Tongkil,
and Panamao.
 They alleged systematic fraud, terrorism, illegal schemes and
machinations allegedly perpetrated by private respondents and
supporters resulting in massive disenfranchisement of voters.
 Even before filing the 4 aforesaid petitions, Abdusakur Tan had filed 4
other petitions before the Municipal Board of Canvassers for the
exclusion of election returns from several precincts and the other three
to exclude certificates of canvass.
o All were dismissed by the Board.
issued an Order directing the boards to suspend the
proceedings.
 On the same day of the Order, private respondent Benjamin Loong was
proclaimed the winning governor of Sulu and assumed office.
 Petitioner Tan then filed a Petition for Annulment of the Proclamation.
o Petition was granted and annulled the proclamation of
respondent Loong as governor.
 Respondent Jikiri filed with COMELEC a petition of protest ad cautelam
praying for a recount / revision of the ballots cast and the examination of
election returns in the 4 municipalities.
 COMELEC en Banc dismissed all 5 petitions.
o This prompted Jikiri to convert his petition ad cautelam into a
regular election protest which COMELEC granted.
 COMELEC ruled that there was no failure of elections in the subject Sulu
municipalities.
o It reasoned that it could only exercise the extraordinary remedy
of failure of elections in three instances mentioned in Carlos v.
Angeles: 1) election is not held, 2) election is suspended, or 3)
the election results in a failure to elect.
o None of the grounds relied upon petitioners fall under any of the
three instances
ISSUE/S & RATIO:
1. W/N the COMELEC committed grave abuse of discretion in dismissing
the consolidated petitions for the declaration of failure of elections
despite the evident massive disenfranchisement of the voters? NO
 The argument of disenfranchisement of voters was only raised during
appeal and wasn’t raised in the court below. This is violative of fairness
and due process.
o In fact there never was any sudden change in the polling places
that was unannounced. The clustering of precincts in Sulu
Province was an administrative matter that was already covered
in a COMELEC resolution released in April 2004.
 Furthermore, there was no failure of elections. In Sec 6 of the
Synchronized Elections Law, the COMELEC can declare a failure of
elections in the following circumstances:
o 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;
o 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
o 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, annul or to suspend the proclamation of any candidate shall
violence, terrorism, fraud, or other analogous causes. suspend the running of the period within which to file an election
 Before the COMELEC can act on a verified petition seeking to declare a protest or quo warranto proceedings.
failure of election two conditions must concur, namely: no voting took  Correlating the petitions mentioned in Section 248 with the 10-day
place in the precinct or precincts on the date fixed by law, or even if period set forth in the succeeding Section 250, a petition to suspend tolls
there was voting, the election resulted in a failure to elect; and the votes the 10-day period for filing an election protest from running, while a
not cast would have affected the result of the election. petition to annul interrupts the running of the period.
o Note that the cause of such failure of election could only be any o In other words, in a Section 248 petition to suspend where the
of the following: force majeure, violence, terrorism, fraud or 10-day period did not start to run at all, the filing of a Section
other analogous causes. 250 election contest after the tenth (10th) day from proclamation
 Petitioners never alleged that no voting was held nor was voting is not late.
suspended in the subject municipalities. Neither did petitioners allege o On the other hand, in a Section 248 petition to annul, the party
that no one was elected. seeking annulment must file the petition before the expiration of
o Petitioners only allege that there was a sham election and the 10-day period.
similar sham canvassing.  In the case at bar, the petitioner filed against petitioner Loong sought to
o To warrant a declaration of failure of election, the alleged suspend his then impending proclamation. Therefore, the filing of the
irregularities must be proven to have prevented or suspended election protest ad cautelam on 56 days after the May 24, 2004
the holding of an election, or marred fatally the preparation and proclamation was contextually on time.
transmission, custody, and canvass of the election returns. o This is because the 10-day reglementary period to file such
These essential facts should have been clearly alleged by protest – which ordinarily would have expired on June 3, 2004 –
petitioners before the COMELEC en banc, but they were not. did not start to run at all.
 We agree with the finding of the COMELEC en banc that the evidence
relied upon by petitioners to support their charges of fraud and 2. W/N the COMELEC has jurisdiction to entertain simultaneously pre-
irregularities in the conduct of elections in the questioned municipalities proclamation controversies and electoral protests? YES
consisted of:  Petitioner Loong holds that an election contest should be put on hold
o affidavits prepared and executed by their own representatives; until pre-proclamation controversies are concluded.
and    For one, there is no law or rule prohibiting the simultaneous prosecution
o that the other pieces of evidence submitted by petitioners were or adjudication of pre-proclamation controversies and elections protests.
not credible and inadequate to substantiate petitioners charges o Allowing the simultaneous prosecution scenario may be
of fraud and irregularities in the conduct of elections. Mere explained by the fact that pre-proclamation controversies and
affidavits are insufficient, more so, when they were executed by election protests differ in terms of the issues involved and the
petitioners’ poll watchers. evidence admissible in each case and the objective each seeks
to achieve.
 W/N the COMELEC has jurisdiction to entertain electoral protests o Moreover, the Court, under certain circumstances, even
filed beyond ten (10) days after the proclamation of the results of encourages the reinforcement of a pre- proclamation suit with an
an election? In this case YES election protest.
 Section 250 of the Omnibus Election Code provides:  Simultaneous adjudications offer more practical features than piecemeal
o SECTION 250. Election contests for Batasang Pambansa, adjudications in expediting the resolution of cases. We must stress the
regional, provincial and city offices. — A sworn petition importance of speedy disposition of election cases.
contesting the election of . . . any regional, provincial or city
official shall be filed with the Commission by any candidate who RULING: WHEREFORE, the instant petitions are DISMISSED for lack of merit.
has duly filed a certificate of candidacy and has been voted for The assailed October 18, 2004 Joint Resolution of the Commission on Elections
the same office, within ten days after the proclamation of the En Banc in SPA Nos. 04-334, 04-336, 04-337, 04-339, and 04-340 in G.R. Nos.
results of the election. (Underscoring added) 166143-47, as well as the assailed Orders of the Commission on Elections First
 Section 248 of the OEM provides: Division in EPC No. 2004-66 dated December 14, 2004 and February 7, 2005 in
o SECTION 248. Effect of filing petition to annul or to suspend the G.R. No. 166891, are hereby AFFIRMED IN TOTO. Sections 3 and 4, Rule 18
proclamation. — The filing with the Commission of a petition to of the COMELEC Rules of Procedure are hereby voided and declared
unconstitutional for contravening Article IX-A, Section 7 of the 1987 Constitution.
Costs against petitioners.