EDGAR Y.

SANTOS, petitioner,
vs.
COMMISSION ON ELECTIONS (FIRST DIVISION) and PEDRO Q. PANULAYA, respondents.

YNARES-SANTIAGO, J.:

Petitioner Edgar Y. Santos and respondent Pedro Q. Panulaya were both candidates for Mayor of the Municipality of Balingoan,
Misamis Oriental in the May 14, 2001 elections. On May 16, 2001, after the votes were counted and canvassed, the Municipal
Board of Canvassers proclaimed respondent Panulaya as the duly elected Mayor.

Petitioner filed an election protest before the Regional Trial Court of Misamis Oriental, Branch 26, which was docketed as SPL
Election Protest No. 1-M(2001). After trial and revision of the ballots, the trial court found that petitioner garnered 2,181 votes while
respondent received only 2,105. Hence, on April 2, 2002, it rendered judgment as follows:

WHEREFORE, judgment is hereby rendered declaring and proclaiming protestant/petitioner Edgar Y. Santos as the duly
elected Municipal Mayor of Balingoan, Misamis Oriental, in the mayoralty elections held on May 14, 2001 with the plurality
of Seventy Six (76) votes over and above his protagonist-protestee Pedro Q. Panulaya setting aside as null and void the
proclamation of protestee made by the Municipal Board of Canvassers on May 16, 2001, ordering to pay
protestant/petitioner the costs and expenses that the latter incurred in this protest in accordance with Section 259 of the
Omnibus Election Code of the Philippines (B.P. 881) and Section 7 of the COMELEC Resolution 1566, to wit:

xxx           xxx           xxx.

The Clerk of Court of this Court is hereby directed to furnish copy of the DECISION to the following: Office of the
Commission on Elections (COMELEC); Office of the Commission on Audit; Office of the Department of Interior and Local
Government; Office of the Sangguniang Panlalawigan of Misamis Oriental, in accordance with Section 15 of the
COMELEC Resolution 1566.

SO ORDERED.1

Petitioner thereafter filed a motion for execution pending appeal. Meanwhile, before the trial court could act on petitioner’s motion,
respondent filed on April 22, 2002 with the Commission on Elections (COMELEC) a petition for certiorari, docketed as SPR No. 20-
2002, assailing the decision of the trial court. 2 Likewise on April 22, 2002, respondent appealed the trial court’s decision to the
COMELEC, where it was docketed as EAC No. A-12-2002.

The COMELEC, in SPR No. 20-2002, issued a Writ of Preliminary Injunction, which effectively enjoined the trial court from acting on
petitioner’s motion for execution pending appeal. Subsequently, on August 19, 2002, the COMELEC dismissed SPR No. 20-2002
after finding that the trial court did not commit grave abuse of discretion in rendering the assailed judgment. Moreover, the
COMELEC held that the remedy from the decision of the court a quo was to file a notice of appeal, which respondent precisely did in
EAC No. A-12-2002. Hence, it directed the trial court to dispose of all pending incidents in SPL Election Protest No. 1-M(2001) with
dispatch, to wit:

WHEREFORE, premises considered, the Commission (First Division) RESOLVED as it hereby RESOLVES to DISMISS
the instant petition for lack of merit.

ACCORDINGLY, the Writ of Preliminary Injunction issued on 16 May 2002, as well as the Order issued on 27 April 2002
by the Commission (First Division), are hereby set aside and lifted, respectively. The Court a quo is hereby directed to
dispose with immediate dispatch all pending incidents in SPL Election Case No. 1-M (2001) entitled "Edgar Y. Santos,
Petitioner/Protestant versus Pedro Q. Panulaya, Respondent/Protestee."

No pronouncement as to cost.

SO ORDERED. (italics ours)3

Thus, on August 20, 2002, the trial court issued an Order as follows:

WHEREFORE, premises considered, this Court hereby upholds and approves the Motion for Execution Pending Appeal.
Further, finding good reasons therefor, the Court hereby directs and orders the immediate execution of the Decision
promulgated on April 18, 2002, and as prayed for install protestant/petitioner EDGAR Y. SANTOS as the duly elected
Mayor of Balingoan, Misamis Oriental, to take his oath of office and assume the functions and duties of Mayor after he
shall have filed a bond of One Hundred Thousand Pesos (P100,000.00).
 SO ORDERED.4

After petitioner posted the required bond, the trial court issued the Writ of Execution, 5 thereby installing petitioner as Municipal
Mayor of Balingoan, Misamis Oriental. Accordingly, petitioner took his oath of office and thereafter assumed the duties and functions
of his office.

On August 21, 2002, respondent filed with the COMELEC a motion for reconsideration of the dismissal of his petition in SPR No. 20-
2002.6 After five days, or on August 26, 2002, he filed a supplemental petition in SPR No. 20-2002, 7 wherein he prayed:

WHEREFORE, foregoing premises considered, petitioner [herein respondent] respectfully prays unto this Honorable
Commission that the following Orders of the public respondent:

1. Resolution dated 20 August 2002;

2. Order dated 20 August 2002;

3. Writ of execution dated 21 August 2002;

Be nullified and set aside.

It is further prayed that in the event that the public respondent has carried out its Order of ousting petitioner [herein
respondent] from his position as Mayor of Balingoan, Misamis Oriental, that the same be nullified and considered of no
legal effect. It is likewise prayed that a STATUS QUO ANTE ORDER be issued by the Honorable Commission in order to
reinstate the petitioner to his rightful position as Mayor of Balingoan, Misamis Oriental.

Other reliefs, just and equitable are likewise prayed for.8

Barely two days later, on August 28, 2002, and while his motion for reconsideration and supplemental petition in SPR No. 20-2002
were pending, respondent filed another petition with the COMELEC, docketed as SPR No. 37-2002. 9 The petition contained the
same prayer as that in the supplemental petition filed in SPR 20-2002, viz:

WHEREFORE, foregoing premises considered, petitioner [herein respondent] respectfully prays unto this Honorable
Commission that immediately upon the filing of the herein petition, the following Orders of the public respondent:

1. Resolution dated 20 August 2002;

2. Order dated 20 August 2002;

3. Writ of execution dated 21 August 2002;

Be nullified and set aside.

Pending trial and final judgment, and soon after the issuance, but during the effectivity of the Temporary Restraining
Order, a Writ of Preliminary Injunction be issued prohibiting, restraining and/or enjoining the public respondent from
further implementing the highly unjust, irregular and oppressive Orders above-quoted;

It is further prayed that in the event that the public respondent has carried out its Order of ousting petitioner [herein
respondent] from his position as Mayor of Balingoan, Misamis Oriental, that the same be nullified and considered of no
legal effect. It is likewise prayed that a STATUS QUO ANTE ORDER be issued by the Honorable Commission in order to
reinstate the petitioner to his rightful position as Mayor of Balingoan, Misamis Oriental.

Upon due notice and hearing, judgment be rendered in favor of the petitioner [herein respondent] and against the
respondent [herein petitioner] as follows:

1. Making the Writ of Preliminary Prohibitory Injunction permanent;

2. Declaring Resolution dated 20 August 2002, Order dated 20 August 2002, and Writ of Execution dated 21
August 2002; as null and void for being highly unjust, irregular and oppressively prepared in utter violation of the
Constitutional provisions on equal protection of the laws and due process, and for having been rendered with
grave abuse of discretion amounting to lack or excess of jurisdiction.
 3. A writ of Prohibition be issued specifically commanding public respondent to cease and desist from further
implementing the highly unjust, irregular and oppressive Orders above-mentioned are concerned (sic); and

4. Ordering the respondents to pay the costs of suit.

Such other reliefs and remedies, as are just and equitable in the premises, are likewise prayed for. 10

On September 3, 2002, the COMELEC issued the assailed Order directing the parties to maintain the status quo ante and enjoining
petitioner from assuming the functions of Mayor. Pertinent portion of the Order reads:

In the interest of justice and so as not to render moot and academic the issues raised in the petition, the Commission
(First Division) hereby directs the parties to maintain the status quo ante, which is the condition prevailing before the
issuance and implementation of the questioned Order of the court a quo dated August 20, 2002 and the Writ of Execution
issued pursuant thereto dated August 21, 2002, in SPL. ELECTION CASE NO. 1-M (2001) entitled "EDGAR Y. SANTOS
versus PEDRO Q. PANULAYA." Accordingly, effective immediately, private respondent EDGAR Y. SANTOS is hereby
ordered to cease and desist from assuming the duties and functions of the office of Mayor of Balingoan, Misamis Oriental
until further orders from this Commission.11

Petitioner filed a motion for reconsideration of the above Order. However, the COMELEC First Division did not refer the said motion
to the COMELEC En Banc. Hence, petitioner, citing our ruling in Kho v. COMELEC,12 brought the instant special civil action for
certiorari with this Court.

Meanwhile, on September 9, 2002, petitioner filed an "Omnibus Motion (1) To Dissolve The Status Quo Order As It Was Based On
An Unverified And Dismissed Petition With Pending Motion For Reconsideration; And (2) To Refer This Motion To The Commission
En Banc Under Section 2, Rule 3 of the COMELEC Rules of Procedure." 13 On October 14, 2002, the COMELEC issued a
Resolution in SPR No. 37-2002, the dispositive portion of which states:

WHEREFORE, premises considered, the Petition is hereby GRANTED. Accordingly, the August 20, 2002 Resolution of
the respondent judge granting the Motion for Execution Pending Appeal as well as his Order also dated August 20, 2002
directing the issuance of the Writ of Execution and his Writ of Execution dated August 21, 2002 are hereby set aside.
Private Respondent Edgar Y. Santos is enjoined from assuming the function of mayor of Balingoan, Misamis Oriental until
the final determination of the election appeal case.

This resolution shall be immediately executory.

The Department of Interior and Local Government (DILG) is hereby requested to assist in the peaceful and orderly
implementation of this Resolution.

SO ORDERED.14

The petition is impressed with merit.

It is at once apparent from the records, as shown above, that respondent was guilty of forum-shopping when he instituted SPR No.
37-2002 with the COMELEC. Forum-shopping is an act of a party against whom an adverse judgment or order has been rendered in
one forum of seeking and possibly getting a favorable opinion in another forum, other than by appeal or special civil action for
certiorari. It may also be the institution of two or more actions or proceedings grounded on the same cause on the supposition that
one or the other court would make a favorable disposition. For it to exist, there should be (a) identity of parties, or at least such
parties as would represent the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being
founded on the same facts; and (c) identity of the two preceding particulars such that any judgment rendered in the other action will,
regardless of which party is successful, amount to res judicata in the action under consideration.15

In the case at bar, respondent obtained an adverse decision when his petition in SPR No. 20-2002 was dismissed by the
COMELEC. He thereafter filed a motion for reconsideration and a supplemental petition, praying for the nullification of the trial
court’s order for the execution of its decision pending appeal. Two days after filing the supplemental petition, and while the same
was very much pending before the COMELEC, he filed a wholly separate petition for certiorari, docketed as SPR No. 37-2002,
wherein he pleaded the same reliefs prayed for in the supplemental petition. This is plainly evident from the respective prayers in the
supplemental petition and the petition for certiorari as reproduced hereinabove. In doing so, respondent, before allowing the
COMELEC to fully resolve the incidents in SPR No. 20-2002, both of which were at his own instance, sought to increase his
chances of securing a favorable decision in another petition. He filed the second petition on the supposition that the COMELEC
might look with favor upon his reliefs.

Forum-shopping is considered a pernicious evil; it adversely affects the efficient administration of justice since it clogs the court
dockets, unduly burdens the financial and human resources of the judiciary, and trifles with and mocks judicial processes. 16 The
most important factor in determining the existence of forum shopping is the vexation caused the courts and parties-litigants by a
party who asks different courts to rule on the same or related causes or grant the same or substantially the same reliefs. 17

Considering that respondent was indubitably guilty of forum-shopping when he filed SPR No. 37-2002, his petition should have been
dismissed outright by the COMELEC. 18 Willful and deliberate forum-shopping is a ground for summary dismissal of the case, and
constitutes direct contempt of court.19

The petition for certiorari in SPR No. 37-2002 assailed the trial court’s orders for the execution of its decision pending appeal. The
grant of execution pending appeal was well within the discretionary powers of the trial court. In order to obtain the annulment of said
orders in a petition for certiorari, it must first be proved that the trial court gravely abused its discretion. He should show not merely a
reversible error committed by the trial court, but a grave abuse of discretion amounting to lack or excess of jurisdiction. "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.
Mere abuse of discretion is not enough. 20

We find that no grave abuse of discretion was committed by the trial court. In its order granting execution pending appeal, it held:

It is of judicial notice that for the public official elected last May 14, 2001 elections only a short period is left. Relative to
this Court’s jurisdiction over the instant case, the settled rule that the mere filing of the notice of appeal does not divest the
trial court of its jurisdiction over the case and to resolve pending incidents, i.e., motion for execution pending appeal
(Asmala vs. COMELEC, 289 SCRA 745) need not be overemphasized.21

However, the COMELEC set aside the aforesaid order, saying that shortness of term alone is not a good reason for execution of a
judgment pending appeal. We disagree.

While it was indeed held that shortness of the remaining term of office and posting a bond are not good reasons, we clearly stated in
Fermo v. COMELEC22 that:

A valid exercise of the discretion to allow execution pending appeal requires that it should be based "upon good reasons
to be stated in a special order." The following constitute "good reasons" and a combination of two or more of them will
suffice to grant execution pending appeal: (1.) public interest involved or will of the electorate; (2.) the shortness of the
remaining portion of the term of the contested office; and (3.) the length of time that the election contest has been pending
(italics supplied).23

The decision of the trial court in Election Protest No. 1-M(2001) was rendered on April 2, 2002, or after almost one year of trial and
revision of the questioned ballots. It found petitioner as the candidate with the plurality of votes. Respondent appealed the said
decision to the COMELEC. In the meantime, the three-year term of the Office of the Mayor continued to run. The will of the
electorate, as determined by the trial court in the election protest, had to be respected and given meaning. The Municipality of
Balingoan, Misamis Oriental, needed the services of a mayor even while the election protest was pending, and it had to be the
candidate judicially determined to have been chosen by the people.

Between the determination by the trial court of who of the candidates won the elections and the finding of the Board of Canvassers
as to whom to proclaim, it is the court’s decision that should prevail. This was sufficiently explained in the case of Ramas v.
COMELEC24 in this wise:

All that was required for a valid exercise of the discretion to allow execution pending appeal was that the immediate
execution should be based "upon good reasons to be stated in a special order." The rationale why such execution is
allowed in election cases is, as stated in Gahol v. Riodique,25 "to give as much recognition to the worth of a trial judge’s
decision as that which is initially ascribed by the law to the proclamation by the board of canvassers." Thus:

Why should the proclamation by the board of canvassers suffice as basis of the right to assume office, subject
to future contingencies attendant to a protest, and not the decision of a court of justice? Indeed, when it is
considered that the board of canvassers is composed of persons who are less technically prepared to make an
accurate appreciation of the ballots, apart from their being more apt to yield to extraneous considerations, and
that the board must act summarily, practically racing against time, while, on the other hand, the judge has
benefit of all the evidence the parties can offer and of admittedly better technical preparation and background,
apart from his being allowed ample time for conscientious study and mature deliberation before rendering
judgment, one cannot but perceive the wisdom of allowing the immediate execution of decisions in election
cases adverse to the protestees, notwithstanding the perfection and pendency of appeals therefrom, as long as
there are, in the sound discretion of the court, good reasons therefor.

To deprive trial courts of their discretion to grant execution pending appeal would, in the words of Tobon Uy v.
COMELEC,26
 bring back the ghost of the "grab-the-proclamation-prolong the protest" techniques so often resorted to by devious
politicians in the past in their efforts to perpetuate their hold to an elective office. This would, as a consequence, lay to
waste the will of the electorate.27

Thus, the COMELEC committed grave abuse of discretion in giving due course, instead of dismissing outright, the petition in SPR
No. 37-2002 despite the clear showing that respondent was guilty of forum-shopping; and in setting aside the trial court’s order
granting execution pending appeal.

WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The Order dated September 3, 2002 and the Resolution
dated October 14, 2002 of the Commission on Elections in SPR No. 37-2002 are ANNULLED and SET ASIDE and the said case is
ordered DISMISSED on the ground of forum-shopping. The Order dated August 20, 2002 of the Regional Trial Court of Misamis
Oriental, Branch 26, granting the execution pending appeal of its decision in Election Protest No. 1-M(2001), and the Writ of
Execution dated August 21, 2002, are REINSTATED. The full enforcement of the said Writ must forthwith be made. The court of
origin shall transmit immediately to the Commission on Elections the records of SPL Election Case No. 1-M(2001), and the
Commission on Elections shall dispose of the appeal in EAC No. A-12-2002 with deliberate dispatch.

This Decision shall be immediately executory.

HECTOR T. HIPE, Petitioner,

vs.
COMMISSION ON ELECTIONS and MA. CRISTINA L. VICENCIO, Respondents.

DECISION

VELASCO, JR., J.:

The Case

Before us is a Petition for Certiorari and Prohibition under Rule 64, in relation to Rule 65, of the Rules of Court seeking to nullify and
enjoin the implementation of the January 30, 2008 Resolution 1 issued by the Commission on Elections (COMELEC) En Banc, which
affirmed the July 11, 2007 Resolution2 issued by its Second Division.

The Facts

Petitioner Hector T. Hipe and respondent Ma. Cristina L. Vicencio were candidates for the mayoralty post in Catubig, Northern
Samar in the May 14, 2007 elections. During the canvass proceedings of the Municipal Board of Canvassers of Catubig, Northern
Samar (MBOC), Vicencio petitioned for the exclusion of seven election returns of Precinct Nos. 0037B, 0052A, 0053A, 0058A,
0080A, 0081A and 0082A on the grounds that they were prepared under duress, threats, intimidation or coercion; and that the
election was marred by massive vote buying, widespread coercion, terrorism, threats, and intimidation, preventing voters from
voting, so that the said returns did not reflect the will of the electorate. 3 In support of the said petition for exclusion, Vicencio
presented affidavits of some of the members of the Board of Election Inspectors, a sample ballot and an ISO Assessment. 4

On May 19, 2007, the MBOC ruled in favor of Vicencio and excluded the seven election returns adverted to. On the same day,
petitioner Hipe filed a notice of appeal. Thereafter, on May 29, 2007, petitioner Hipe filed his Verified Appeal with the COMELEC,
docketed as SPC No. 07-206 entitled "In the Matter of the Petitions to Exclude Election Returns, Hector T. Hipe vs. Ma. Cristina L.
Vicencio," arguing that the written petition to exclude the election returns was filed out of time, and that the grounds used to exclude
the questioned returns were not proper for a pre-proclamation controversy, were not supported by credible evidence, and were
beyond the jurisdiction of the MBOC.5

In a July 11, 2007 Resolution, 6 the Second Division of COMELEC dismissed the appeal for being filed out of time. As stated in the
dispositive portion of the said Resolution:

WHEREFORE, premises considered, the instant Verified Appeal is hereby dismissed for being filed out of time.

SO ORDERED.7

Subsequently, on July 17, 2007, petitioner Hipe filed a Motion for Reconsideration. 8 On even date, respondent Vicencio was
proclaimed as the mayor.9 On January 30, 2008, the COMELEC En Banc resolved to deny petitioner Hipe’s Motion for
Reconsideration.10

In the challenged Resolution, 11 the COMELEC En Banc held that the ruling of the MBOC had already attained finality considering
that the filing of the Verified Appeal with the COMELEC was five days late. It stated that the filing of the Verified Appeal should have
been made within the inextendible period of five days from the filing of the written and verified notice of appeal with the MBOC, with
which petitioner Hipe failed to comply. Further, the COMELEC En Banc held that it was already deprived of proper jurisdiction to
entertain the instant case since the case should no longer be considered as a pre-proclamation controversy, but should rather be
ventilated in an election protest. In addition, the COMELEC En Banc stated that the ruling of the MBOC was amply supported by the
affidavits of the Members of the Board of Election Inspectors, and that the MBOC retained sufficient discretion to avail itself of all
available means to ascertain the results of the elections through witnesses, as well as through an examination of the election returns
themselves.

The dispositive portion of the January 30, 2008 Resolution reads:

WHEREFORE, premises considered, the Commission (En Banc) RESOLVED as it hereby RESOLVES, to deny the instant Motion
for Reconsideration filed by Appellant-Movant Hector Hipe. The questioned Resolution dated July 11, 2007, issued by the Second
Division of the Commission on Elections for the exclusion of seven (7) election returns in favor of the appellee, Maria Cristina L.
Vicencio, therefore, stands and remains valid.

SO ORDERED.12

Aggrieved, Hipe filed this petition.

The Issue

Whether or not the COMELEC En Banc acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack
or excess of jurisdiction in issuing its challenged Resolution dated January 30, 2008, which affirmed the Resolution dated July 11,
2007 issued by its Second Division dismissing petitioner Hipe’s appeal for being filed out of time.

Our Ruling

The petition is partly meritorious.

Appeal Should Be Given Due Course

In its En Banc Resolution, the COMELEC held that the ruling of the MBOC had already become final and executory; and thus, its
Second Division had not acquired appellate jurisdiction to act on Hipe’s verified appeal. In support of its ruling, the COMELEC En
Banc relied on the Certification issued by Renato I. Madronio, Acting Election Officer II, Catubig, Northern Samar, attesting that hard
or printed copies of the MBOC’s ruling to exclude the seven contested election returns were received by Atty. V.B. Desales, counsel
for the KAMPI-Liberal Party Coalition, at 10:37 p.m. on May 19, 2007 at the provincial Election Supervisor’s Office. 13 On this basis,
the COMELEC En Banc opined that when petitioner Hipe filed the Verified Appeal on May 29, 2009, said filing was already five days
late and should no longer be entertained.

We disagree. Indeed, there is a disputable presumption that official duty has been regularly performed; 14 and that, corollary thereto,
it is presumed that in its disposition of the contested election returns, the MBOC has regularly performed its official duty of issuing a
written ruling on the prescribed form, authenticated by the signatures of its members as required under Section 20(d) of Republic
Act No. 7166.15 In fact, the alleged issuance and service upon the supposed counsel of petitioner Hipe of the written ruling of MBOC
was even supported by the aforementioned Certification of the Chairperson of the MBOC.

The records would, however, reveal that Atty. Venerando B. Desales, the counsel who was supposedly furnished the alleged written
ruling of the MBOC, has denied under oath that he ever received a copy of the alleged written ruling. 16 He even categorically denied
in his Affidavit that he was the counsel of petitioner Hipe.17

Notably, nothing in the Status of Canvass Report18 or in the Minutes of the Proceedings of the MBOC on May 19, 2007 19 showed
that a written ruling on the petition for exclusion has been rendered by the MBOC or received by petitioner Hipe.

On the contrary, a perusal of the Minutes of the Proceedings of the MBOC on May 19, 2007 would reveal that Election Officer
Madronio even notified the counsels of petitioner Hipe that, as of that time, the Municipal COMELEC Office still did not have the
prescribed form of the ruling, and that they would still have to get the prescribed forms in Catarman. 20 This militates against
Madronio’s statement in his Certification that hard or printed copies of the ruling of the MBOC were furnished to Atty. Desales on
that same day.

When a plaintiff’s case depends upon the establishment of a negative fact, and the means of proving the fact are equally within the
control of each party, then the burden of proof is upon the party averring the negative fact.21
In the case at bar, petitioner Hipe asserted the negative fact, that is, that no copy of the written ruling of the MBOC was sent to him
or his counsel. Thus, petitioner Hipe has the burden of proof to show that he was not furnished with a copy of the written ruling of
the MBOC, which he was able to successfully prove in the instant case. Be that as it may, it then becomes incumbent upon
respondent Vicencio to prove otherwise. This is because the burden of evidence is shifted if the party upon whom it is lodged was
able to adduce preponderant evidence to prove its claim.22

Significantly, other than Madronio’s statement in his Certification that hard or printed copies of the ruling of the MBOC were
furnished to Atty. Desales on May 19, 2007, no other evidence was adduced by respondent Vicencio to support her claim. If indeed
such written ruling exists and was indeed furnished to petitioner Hipe or his alleged counsel, it would have been very easy for
respondent Vicencio to produce a copy of the written ruling with the signature of petitioner Hipe or his counsel, which she failed to
do in the instant case.1avvph!1

Furthermore, the COMELEC has the discretion to construe its rules liberally and, at the same time, suspend the rules or any of their
portions in the interest of justice.23 As aptly stated by Commissioner Rene V. Sarmiento in his Dissenting Opinion: 24

It is well settled that election laws should be reasonably and liberally construed to achieve their purpose – to effectuate and
safeguard the will of the electorate in the choice of their representatives. The courts frown upon any interpretation that would hinder
in any way not only the free and intelligent casting of votes in any election but also the correct ascertainment of the results thereof.

Disputes in the outcome of elections involve public interest. 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 technicalities. Hence, it is submitted that there is a need to suspend the procedural rules and resolve the merits of
the case to promote justice and safeguard the will of the electorate of Catubig, Northern Samar.

Accordingly, the COMELEC should have not dismissed the appeal filed by petitioner Hipe on the ground of belated filing.

The Exclusion of the Seven Election Returns

Was Amply Supported by Evidence

Nevertheless, even if we entertain petitioner Hipe’s appeal from the decision of the MBOC on the questioned election returns, the
Court still rules in favor of respondent Vicencio.

Petitioner Hipe claims that no proof was presented nor was there any showing that the seven election returns in question were
defective.25 Such contention is not persuasive.

The COMELEC, after a judicious evaluation of the documents on record, upheld the findings of the MBOC to exclude the subject
election returns on the basis of the affidavits of the members of the Board of Election Inspectors. What exactly these documents and
evidence are upon which the COMELEC based its resolution, and how they have been appreciated in respect of their sufficiency,
are beyond this Court’s scrutiny.26 The rule that factual findings of administrative bodies will not be disturbed by courts of justice
except when there is absolutely no evidence or no substantial evidence in support of such findings should be applied with greater
force when it concerns the COMELEC, as the framers of the Constitution intended to place the COMELEC—created and explicitly
made independent by the Constitution itself—on a level higher than statutory administrative organs. 27 The factual finding of the
COMELEC is, therefore, binding on the Court. As found by the COMELEC En Banc:

Besides, we do not agree that the exclusion of the seven (7) election returns in question were not supported by any iota of evidence.
This is amply supported by the affidavits of the Members of the Board of Election Inspectors; they were all made in clear and
unequivocal language by public officers who are presumed to have performed such duties in the ordinary and regular execution
thereof. A careful re-examination of the evidence on record reveals that there is sufficient justification to uphold the MBOC ruling to
exclude the subject election returns. The MBOC retains sufficient discretion to avail itself of all available means to ascertain the
results of the elections through witnesses as well as examination of the election returns themselves. Where there is no abuse of
discretion the MBOC is presumed to have acted within its powers and its decision should be treated with some amount of respect. 28

This is especially true in the instant case considering that, as noted by the COMELEC En Banc in its questioned Resolution, one of
the witnesses petitioner Hipe previously presented later on recanted her testimony and admitted that she had made her previous
statement as to the regularity of the conduct of the May 14, 1007 elections only out of fear due to threats upon her person. 29 As
correctly observed by the COMELEC En Banc:

We also note that even one of the witnesses presented by the appellant, Melanie Robion, Chairman of the BEI for precinct No.
0037B, later on recanted her testimony. This spells doom to the appellant’s cause as it even impacts on the veracity and
truthfulness of the other affidavits that the appellant submitted. We are reminded of the legal principle that a falsity in one is a falsity
in all, "Falsus in Onum, Falsus in Omnibus" and would now be more inclined to believe the assertions made by the appellee instead
of those presented by the appellant, who has now been unmasked to have been less than truthful at one time or another. 30
Considering the foregoing discussion, there is ample evidence to support the findings of the COMELEC that the seven election
returns in question should be excluded. The contention of petitioner Hipe that said election returns were excluded from the canvass
merely on the basis of pure procedural technicalities is, therefore, unfounded.

Respondent Vicencio Substantially Complied with the

Requirement that Objections Be Made in Writing

Petitioner Hipe contends that the written petition to exclude the election returns was filed beyond the prescribed time or almost 24
hours after the oral petition to exclude was manifested by the counsels of respondent Vicencio; hence, the latter’s objections were
raised out of time.31

This contention is without merit.

While the records reveal that respondent Vicencio manifested her oral objections on May 15, 2007 at around 7:00 p.m., 32 filed the
written objections on May 16, 2007 at 6:40 p.m., and submitted the documentary evidence in support of the protest at 2:45 p.m. only
on the following day, the Court nevertheless considers the foregoing acts of Vicencio as substantial compliance with the requirement
that objections be reduced into writing.

In Marabur v. COMELEC,33 we held that while respondent failed to submit his written objections, respondent’s submission of his
formal offer of evidence, including the evidence itself, within the prescribed period constituted substantial compliance with the
requirement that objections be reduced into writing.

Notably, the relaxation of the rules becomes all the more necessary in the instant case, considering that respondent Vicencio has
even filed his written objections within the prescribed period; and soon thereafter, the documentary evidence in support of the
written objections.

Technicalities and procedural barriers should not be allowed to stand in the way if they constitute an obstacle to the determination of
the electorate’s true will in the choice of its elective officials. 34

It should be borne in mind that the object of the canvass is to determine the result of the elections based on the official election
returns. In order that the result of the canvass would reflect the true expression of the people’s will in the choice of their elective
officials, the canvass must be based on true, genuine, correct––nay, untampered––election returns. 35 It is in these proceedings that
the COMELEC exercises its supervisory and administrative power in the enforcement of laws relative to the conduct of elections, by
seeing to it that the canvass is based on the election returns as actually certified by the members of the board of inspectors. 36

Taking into consideration the findings of the COMELEC En Banc that there was ample evidence to support the exclusion of the
seven election returns in question based on the grounds raised by respondent Vicencio, this should suffice in upholding the latter’s
proclamation, absent a finding of grave abuse of discretion on the part of the COMELEC En Banc, in order not to frustrate the
electorate’s will.

WHEREFORE, the petition is PARTLY GRANTED. The January 30, 2008 COMELEC En Banc Resolution and the July 11, 2007
COMELEC Second Division Resolution are hereby SET ASIDE insofar as they dismissed petitioner Hipe’s appeal. The January 30,
2008 COMELEC En Banc Resolution is, however, AFFIRMED insofar as it declared the exclusion of the seven election returns of
Precinct Nos. 0037B, 0052A, 0053A, 0058A, 0080A, 0081A and 0082A to be valid.

ISIDRO IDULZA and GODOFREDO CABANA, petitioners,

vs.
COMMISSION ON ELECTIONS and TERESITA A. BOLLOZOS, REY L. MORTIZ, MIGUEL P. PADERANGA, JOJAC Q.
ASUNCION and CIFERINO L. GARCIA, JR., respondents.

RESOLUTION

TINGA, J.:

An election protest was filed by three unsuccessful candidates for seats in the Sangguniang Panglungsod of Gingoog City, directed
at three proclaimed candidates. The COMELEC found merit in the protest and ordered the protestees to vacate their posts. In
reviewing the COMELEC’s actions, the Court is guided by two principles particular to election cases: the recognition of the
COMELEC’s specialized role in the supervision of elections, and the liberal construction of election laws to the end that the will of
the people may not be defeated by mere technical objections.

On 17 May 2001, petitioners Isidro Idulza ("Idulza") and Godofredo Cabana ("Cabana") were proclaimed as the seventh (7th) and
eighth (8th) winning candidates for the office of members of the Sangguniang Panglungsod of Gingoog City. Private respondents
Miguel Paderanga ("Paderanga"), Jojac Asuncion ("Asuncion"), and Ciferino L. Garcia, Jr. ("Garcia"), all losing candidates for the
same office, filed an election protest with the COMELEC on 25 May 2001, against the two petitioners therein and Besben Maquiso
("Maquiso"), who had placed ninth (9th) in the canvass results. The election protest was docketed as COMELEC Case No. EPC
2001-3. After conducting the revision of ballots, the COMELEC Second Division ("Second Division") on 16 January 2003
promulgated a Resolution that settled the election protest at that point. It determined that the parties garnered the following number
of votes:

PROTESTANTS:

Paderanga - 17,260

Asuncion - 16,567

Garcia - 16,502

PROTESTEES:

Idulsa - 16,013

Maquiso - 16,266

Cabana - 16,2661

At the same time, the Second Division determined that one Rey Y. Mortiz ("Mortiz"), who was not a party to the election protest, had
garnered more votes than the three protestants. Apparently, per the Certificate of Canvass, Mortiz had placed tenth (10th) in the city
council election, though he had not been impleaded in the protest as he was a party-mate of the protestants. 2

Consequently, the Second Division disposed of the election protest in this wise:

WHEREFORE, the instant protest is hereby GRANTED.

Protestants Paderanga, Asuncion and Garcia are hereby declared winners and councilors-elect of Gingoog City, in the
following order:

1. 8th place – Miguel P. Paderanga

2. 9th place – Jojac Q. Asuncion

3. 10th place – Ceferino (sic) L. Garcia, Jr.

As a consequence of the final numerical results of the votes obtained by the winning candidates vis-à-vis the number of
those authorized to be elected, Rey Y. Mortiz, who garnered more votes than the three Protestants herein, wins the
seventh (7th) rank in the City Council.

Protestees Isidro Idulsa, Besben Maquiso, and Godofredo Cabana are hereby ordered to vacate their positions as
Councilors No. 7, 8 and 9 in the City Council, Gingoog City.

SO ORDERED.3

Obviously aggrieved, the protestees, filed a Motion for Reconsideration before the COMELEC En Banc on 21 January 2003. Aside
from contesting the Second Division’s appreciation of the contested ballots, the petitioners also specifically questioned the
proclamation of Mortiz, who was not a party to the election protest. Petitioners also noted therein that Asuncion and Garcia had filed
certificates of candidacy for Punong Barangay and Barangay Kagawad respectively in the 15 July 2002 barangay elections, and
Asuncion was elected. As a result, it was argued, Asuncion and Garcia should be deemed to have abandoned their election
protest.4

On 17 February 2003, before the COMELEC En Banc had resolved the Motion for Reconsideration, private respondent Teresita A.
Bollozos ("Bollozos"), who was not a party to the election protest, filed a Motion for Leave to Intervene in `COMELEC Case No. EPC
2001-3, with her Motion for Intervention appended thereto. She alleged therein that she too was a losing candidate for the Gingoog
City Sanggunian, yet her vote total according to the records had surpassed the number of votes ascribed to Asuncion and Garcia. 5
She therefore asserted that she should have been proclaimed as the ninth (9th) winning candidate in lieu of Asuncion, who should
have placed tenth (10th) instead.
On 18 September 2003, the COMELEC En Banc issued a Resolution partially affirming the Second Division’s Resolution. It held
that the Second Division committed no reversible error as to the appreciation of the contested ballots, and in declaring Mortiz as the
seventh (7th) place councilor. However, the COMELEC also considered Bollozos’ claim as meritorious, as according to it, "[r]ecords
reveal that Bollozos garnered a total of seventeen thousand twenty-three (17,023) votes…, clearly outnumbering [Asuncion’s]
16,567 votes and [Garcia’s] 16,502 votes." 6 Bollozos’ Motion for Intervention was thus granted, and Bollozos was proclaimed as the
ninth (9th) place candidate. At the same time, the COMELEC En Banc also ruled that Asuncion should not be proclaimed, as he has
been deemed to have abandoned his protest due to his successful candidacy for Punong Barangay in the 15 July 2002 elections.
Accordingly, the tenth (10th) place was declared vacant.

Petitioners now come before this Court on a Petition for Certiorari, assailing the Resolutions of the COMELEC. They assert that the
COMELEC committed grave abuse of discretion in proclaiming Mortiz and Bollozos, the former having no participation in the
election protest, while the latter having filed her motion for intervention beyond the period provided by law. 7 They also question the
manner of appreciation by the COMELEC of the contested ballots. 8 Finally, they applied for a Temporary Restraining Order, which
the Court has not granted.

The appreciation of 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. 9 The findings of fact of the COMELEC
when supported by substantial evidence are final and non-reviewable. 10 Petitioners want this Court to review the specific
appreciation by the Second Division of ballots cast in forty-eight (48) precincts in Gingoog City. The bar for this manner of review is
quite high, considering that the Court is not a trier of facts. Yet before this Court, petitioners merely direct us to examine the contrary
conclusions made by Commissioner Florentino Tuason in his dissenting opinion, without particularly explaining why we should
substitute the findings of one commissioner in lieu of those of the COMELEC speaking as a collegial body.

An examination of the Tuason dissent reveals that it is predicated not on any broad question of law, but on the specific application of
principles of election law vis-à-vis particular ballots. His disagreement with the majority is purely factual in basis, too detailed to the
point of being pernickety. On the other hand, the thirty (30)-page majority opinion is just as detailed in providing for the general
principles applicable in appreciating the ballots, and in explaining why each particular contested ballot was interpreted in the
particular way that it was. Petitioners are unable to point out why the COMELEC committed grave abuse of discretion in the
appreciation of the contested ballots. Notwithstanding the dissenting opinion, the Second Division’s factual findings, as
affirmed by the COMELEC En Banc, are supported by substantial evidence and thus beyond the ken of review by the
Court.

Thus, the Court is bound by the findings of the COMELEC as to how many votes the parties had obtained in the city council
election. The COMELEC had also noted that Mortiz, who had originally placed tenth (10th), has become the seventh (7th) placer,
considering that his original vote total still surpassed that of the protestants. We are unable

to see how such declaration by the COMELEC could constitute grave abuse of discretion, even if Mortiz had not been a party to the
election protest. He was not a losing candidate elevated into victory, as he apparently was already proclaimed a duly elected city
councilor in May of 2001. 11 The petitioners were dislodged from their respective seats because the private respondents garnered
more votes than them. Mortiz’s vote total remained unchanged despite the protest. His elevation to seventh (7th) place is but a
necessary consequence of the finding of the COMELEC that the petitioners had actually obtained less number of votes than as
reflected in the first canvass results. It would be patently ridiculous for the Court or the COMELEC to hold that he should still be
deemed as the tenth (10th) placer when the amended vote totals reveal that he had garnered more votes than the new eighth (8th)
placer. Presumptively, the vote totals as amended after the revision more accurately reflect the true will of the voters of Gingoog
City, and the elevation of councilor Mortiz from tenth (10th) to seventh (7th) place is in consonance with the electoral mandate.

Election protests are guided by an extra-ordinary rule of interpretation 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. 12
For that reason, the Court sustains the allowance by the COMELEC of Bollozos Intervention. It would have been explicitly
anomalous had Bollozos not been seated in the City Council, considering that her uncontested vote total had exceeded that of
Asuncion, the ninth (9th) placer according to the Second Division. The people of Gingoog City had chosen Bollozos to serve as their
councilor, and it was but proper for the COMELEC to recognize that electoral will and accordingly amend the Second Division’s
Resolution.

Besides, in allowing the Bollozos Intervention, the COMELEC did not stretch itself by applying an overarching equitable principle
that would have disturbed the judicially sedate. Statutory prescription on the right to intervene in an election protest is provided only
by the COMELEC Rules of Procedure, particularly Rule 8, Section 1. The aforementioned rule does state that the motion for
intervention be filed before or during the trial of an action or proceeding. 13 At the same time, the COMELEC Rules of Procedure are
to be construed liberally "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" before the COMELEC.14 The allowance of the motion for intervention was clearly geared towards
fostering honest, credible elections and a just outcome centered around the proper proclamation of a candidate whom the voters
have chosen to serve as their councilor.

Admittedly, the Rules of Court provides that a motion to intervene be filed at any time before rendition of judgment of the trial court. 15
However, the suppletory role of the Rules of Court in this case must be dispensed with if its application would frustrate the electoral
will. Further, as the Solicitor General points out in his Comment filed in behalf of the COMELEC, the Court has, in exceptional
cases, allowed intervention notwithstanding the rendition of judgment by the trial court 16, or even after the case had become final
and executory.17 The Court is not ordinarily predisposed, on account of broad claims of equity, to disregard infractions of procedural
rules. Yet election cases are of such an exceptional character that the supervening State interest is to ensure that the true results of
its elections are given efficacy. We find that the COMELEC’s grant of the Bollozos Intervention is in accord with this superior
principle which is grounded on the imperative to seek and make the sovereign will of the people prevail.

Finally, none of the parties question the COMELEC En Banc’s declaration of vacancy of the tenth (10th) seat in the Sangguniang
Panglungsod of Gingoog City on the premise that the tenth (10th) placer Asuncion’s subsequent active candidacy and election as
Punong Barangay should be deemed an abandonment of his protest. In so holding, the COMELEC En Banc cited the Court’s
majority opinion in the case of Defensor-Santiago v. Ramos.18 The parties adduced no compelling reason for the Court to disturb
this conclusion of the COMELEC. At the same time, the eleventh (11th) placer Garcia cannot be elevated to the tenth (10th) spot,
for the simple reason that the electorate of Gingoog City did not elect him as one of the ten (10) city councilors. 19

WHEREFORE, the petition is DISMISSED for lack of merit.

TOMAS DE GUZMAN, petitioner,

vs.
PROVINCIAL BOARD OF CANVASSERS OF LA UNION and JUAN T. LUCERO, respondents.

A. de Guzman for petitioner.

Gregorio Talavera for respondents.

VILLAMOR, J.:

          This proceedings is for the purpose of having this court issue a mandamus addressed to the provincial board of canvassers of
the Province of La Union, ordering it to meet and reject and annul all the votes adjudicated to the respondent Juan T. Lucero, and
after correcting the election return, to proclaim and certify the petitioner elected for the office of provincial governor of La Union in
accordance with law.

          As ground of the petition, it is alleged that the respondent provincial board of canvassers met on June 22, 1925, for the
purpose of counting the votes cast in the election for provincial officers and certifying the result of the count, and after gathering all
the election returns, it found that the petitioner had obtained 7,662 votes and the respondent Juan T. Lucero, 8,771 votes; that the
original of the certificate of candidacy of the respondent Juan T. Lucero, a certified copy of which is Exhibit A, was not duly sworn to,
as required by law, while the certificate of candidacy of the petitioner Tomas de Guzman, the original of which is Exhibit B, was
prepared and filed in accordance with the requirements of the law; that notwithstanding that Juan T. Lucero did not file a certificate
of candidacy duly sworn to, as provided in section 404 of the Election Law, the respondent provincial board of canvassers willfully
and illegally adjudicated the 8,771 votes to the respondent, and afterwards illegally proclaimed and certified him as governor-elect of
the Province of La Union; that in view of these facts the respondent Juan T. Lucero has not, and could not have, been a legal
candidate for the office in question, and could not have been certified elected for the office of provincial governor.

          To this complaint the respondent filed a demurrer on the ground: (a) That the court had no jurisdiction over the subject-matter
in litigation; (b) that the court had no jurisdiction over the persons of the defendant members of the extinguished provincial board of
canvassers of La Union; and (c) that the facts alleged in the complaint did not constitute a cause of action.

          The question to be decided in this proceeding is whether or not the respondent has filed a certificate of candidacy in
accordance with the law, and in case he has not, whether the writ applied for should be issued.

          Section 41 of Act No. 3030, amending section 471 of the Election Law, provides that the provincial board of canvassers or the
Governor-General, as the case may be, shall certify elected for the offices of senator or member of the House of Representatives
and for provincial officers only those who shall have obtained the highest number of votes, and filed their certificates of candidacy in
accordance with the provisions of section 404 of this law. And said section 404, as amended by section 3 of the same Act No. 3030,
provides that no person shall be eligible for the office of senator, representative or any provincial office, unless within the time fixed
by the law, he shall file a certificate of candidacy duly verified. The meaning of the phrase "a certificate of candidacy duly verified," is
explained by this court in Viola vs. Court of First Instance of Camarines Sur and Adolfo, (47 Phil., 849), to the effect that ". . . only
when the corresponding receipt has been issued and the certificate filed can it be presumed that it has been duly verified and filed."

          In the instant case, according to the allegations of the petitioner the respondent Juan T. Lucero filed his certificate of
candidacy in the office of the secretary of the provincial board of La Union on April 15, 1925, the provincial secretary having issued
the proper receipt for the filing of said certificate, together with a statement of the expenses attached thereto (Exhibit 2). It, therefore,
seems clear that the respondent filed his certificate in accordance with the Spanish text of section 404 of the Election Law, as
amended by section 3 of act No. 3030.
          But the petitioner argues that section 404 of the Election Law, as amended by section 3 of Act No. 3030, is mandatory in its
terms, and therefore must be complied with the provincial board, respondent herein. Granting that the English text of the law in this
case makes clear the Spanish text "Certificado de candidatura debidamente acreditado" (certificate of candidacy duly verified), it will
be seen that said section 3 of Act No. 3030 requires the candidate to file a "certificate of candidacy duly verified," indicating by these
two words that the certificate of candidacy must be sworn to. In the case before us the certificate of the respondent Juan T. Lucero
was defective, lacking the formality of the oath. This irregularity might have justified the elimination of the name of Juan T. Lucero as
a legal candidate for the office of provincial governor, if an objection on the part of the petitioner Tomas de Guzman had been made
in due time. Yet we are of the opinion that this irregularity does not invalidate the election for the fundamental reason that after it
was proven by the count of the votes that Juan T. Lucero had obtained the majority of the legal votes, the will of the people cannot
be frustrated by a technicality consisting in that his certificate of candidacy had not been properly sworn to.

          This court in the case of Gardiner vs. Romulo (26 Phil., 521), following authoritative decisions of the United States, which
establish rules of interpretation of election laws, said:

          The provisions of the Election Law declaring that a certain irregularity in an election procedure is fatal to the validity
of the ballot or of the returns, or when the purpose and spirit of the law would be plainly defeated by a substantial
departure from the prescribed method, are mandatory.

          When the Election Law does not provide that a departure from a prescribed form will be fatal and such departure
has been due to an honest mistake or misinterpretation of the Election Law on the part of him who was obligated to
observe it, and such departure has not been used as a means for fraudulent practices or for the intimidation of voters, and
it is clear that there has been a free and honest expression of the popular will, the law will be held directory and such
departure will be considered a harmless irregularity. lawph!1.net

          And in Lino Luna vs. Rodriguez, (39 Phil., 208), this court laid down the following doctrine:

          It has been announced in many decisions that the rules and regulations, for the conduct of elections, are mandatory
before the election, but when it is sought to enforce them after the election, they are held to be directory only, if that is
possible, especially where, if they are held to be mandatory, innocent voters will be deprived of their votes without any
fault on their part. The various and numerous provisions of the Election Law were adopted to assist the voters in their
participation in the affairs of the government and not to defeat that object. When the voters have honestly cast their
ballots, the same should not be nullified simply because the officers appointed under the law to direct the election and
guard the purity of the ballot have not done their duty. The law provides a remedy, by criminal action, against them. They
should be prosecuted criminally, and the will of the honest voter, as expressed through his ballot, should be protected and
upheld.

          We hold that the legal provision here in question is mandatory and non-compliance therewith before the election would have
been fatal to the recognition of the status of Juan T. Lucero as candidate. But after the people have expressed their will honestly,
the result of the election cannot be defeated by the fact that the respondent who was certified by the provincial secretary to be a
legal candidate for the office of provincial governor, has not sworn to his certificate of candidacy. The situation is somewhat like that
of a voter placing his ballot in the box. There are certain requirements of the law, affecting the vote, which have been considered by
this court as of a mandatory character until the ballot is placed in the ballot box; but we have held that the validity of the count
cannot be questioned, nor the vote stricken out after the ballots had been placed in the ballot boxes, simply for non-compliance with
such provisions. After the termination of the election, public interest must be made to prevail over that of the defeated candidate,
and we cannot declare that the election of the respondent Juan T. Lucero was illegal, and that he should quit the office for which he
was elected, simply by reason of a defect in his certificate of candidacy, which defect could have been corrected before the election,
but which cannot be cured after its termination, and after the result of the election was published by the provincial board of
canvassers, respondents herein.

          Of course the conclusion which we have arrived at tends to sustain the third ground of the demurrer of the respondent. We
will not enter upon the discussion of the two first grounds of said demurrer, for it may be seen that they are clearly untenable.

          The demurrer of the respondent is therefore sustained upon the third ground, and considering that in view of our ruling upon
the only legal question raised in this proceeding, the complaint cannot be amended, this case is definitely adjudicated, and the writ
of mandamus applied for is denied with the costs against the petitioner. So ordered.

FELIPE EVARDONE, petitioner,

vs.
COMMISSION ON ELECTIONS, ALEXANDER APELADO, VICTORINO E. ACLAN and NOEL A. NIVAL, respondents.

G.R. No. 95063 December 2, 1991

ALEXANDER R. APELADO, VICTORINO E. ACLAN and NOEL A. NIVAL, petitioners,
vs.
COMMISSION ON ELECTIONS and MAYOR FELIPE EVARDONE, respondents.

Zosimo G. Alegre for Felipe Evardone.

Elmer C. Solidon for petitioners in G.R. No. 95063.

PADILLA, J.:p

These two (2) consolidated petitions have their origin in en banc Resolution No. 90-0557 issued by the respondent Commission on
Elections (COMELEC) dated 20 June 1990 which approved the recommendation of the Election Registrar of Sulat, Eastern Samar
to hold and conduct the signing of the petition for recall of the incumbent Mayor of Sulat, Eastern Samar, on 14 July 1990.

G.R. No. 94010 is a petition for prohibition with an urgent prayer for immediate issuance of a restraining order and/or writ of
preliminary injunction to restrain the holding of the signing of the petition for recall on 14 July 1990.

G.R. No. 95063 is a petition for review on certiorari which seeks to set aside en banc Resolution No. 90-0660 of the respondent
COMELEC nullifying the signing process held on 14 July 1990 in Sulat, Eastern Samar for the recall of Mayor Evardone of said
municipality and en banc Resolution No. 90-0777 denying petitioners' motion for reconsideration, on the basis of the temporary
restraining order issued by this Court on 12 July 1990 in G.R. No. 94010.

Felipe Evardone (hereinafter referred to as Evardone) is the mayor of the Municipality of Sulat, Eastern Samar, having been elected
to the position during the 1988 local elections. He assumed office immediately after proclamation.

On 14 February 1990, Alexander R. Apelado, Victozino E. Aclan and Noel A. Nival (hereinafter referred to as Apelado, et al.) filed a
petition for the recall of Evardone with the Office of the Local Election Registrar, Municipality of Sulat.

In a meeting held on 20 June 1990, the respondent COMELEC issued Resolution No. 90-0557, approving the recommendation of
Mr. Vedasto B. Sumbilla, Election Registrar of Sulat, Eastern Samar, to hold on 14 July 1990 the signing of the petition for recall
against incumbent Mayor Evardone of the said Municipality.

On 10 July 1990, Evardone filed before this Court a petition for prohibition with urgent prayer for immediate issuance of restraining
order and/or writ of preliminary injunction, which was docketed as G.R. No. 94010.

On 12 July 1990, this Court resolved to issue a temporary restraining order (TRO), effective immediately and continuing until further
orders from the Court, ordering the respondents to cease and desist from holding the signing of the petition for recall on 14 July
1990, pursuant to respondent COMELEC's Resolution No. 2272 dated 23 May 1990.

On the same day (12 July 1990), the notice of TRO was received by the Central Office of the respondent COMELEC. But it was only
on 15 July 1990 that the field agent of the respondent COMELEC received the telegraphic notice of the TRO—a day after the
completion of the signing process sought to be temporarily stopped by the TRO.

In an en banc resolution (No. 90-0660) dated 26 July 1990, the respondent COMELEC nullified the signing process held in Sulat,
Eastern Samar for being violative of the order (the TRO) of this Court in G.R. No. 94010. Apelado, et al., filed a motion for
reconsideration and on 29 August 1990, the respondent COMELEC denied said motion holding that:

. . . The critical date to consider is the service or notice of the Restraining Order on 12 July 1990 upon the
principal i.e. the Commission on Election, and not upon its agent in the field. 1

Hence, the present petition for review on certiorari in G.R. No. 95063 which seeks to set aside en banc
Resolution No. 90-0660 of respondent COMELEC.

In G.R. No. 94010, Evardone contends that:

I. The COMELEC committed grave abuse of discretion in approving the recommendation of the Election
Registrar of Sulat, Eastern Samar to hold the signing of the petition for recall without giving petitioner his day in
court.
 II. The COMELEC likewise committed grave abuse of discretion amounting to lack or excess of jurisdiction in
promulgating Resolution No. 2272 on May 22, 1990 which is null and void for being unconstitutional. 2

In G.R. No. 95063, Apelado, et al., raises the issue of whether or not the signing process of the petition for recall held on 14 July
1990 has been rendered nugatory by the TRO issued by this court in G.R. No. 94010 dated 12 July 1990 but received by the
COMELEC field agent only on 15 July 1990.

The principal issue for resolution by the Court is the constitutionality of Resolution No. 2272 promulgated by respondent COMELEC
on 23 May 1990 by virtue of its powers under the Constitution and Batas Pambansa Blg. 337 (Local Government Code). The
resolution embodies the general rules and regulations on the recall of elective provincial, city and municipal officials.

Evardone maintains that Article X, Section 3 of the 1987 Constitution repealed Batas Pambansa Blg. 337 in favor of one to be
enacted by Congress. Said Section 3 provides:

Sec. 3. The Congress shall enact a local government code shall provide for a more responsive and accountable
local government structure instituted through a system of decentralization with effective mechanisms of recall,
initiative, and referendum, allocate among the different local government units their powers, responsibilities and
resources, and provide for the qualifications, election, appointment and removal, term, salaries, powers and
functions and duties local officials, and all other matters relating to the organization operation of the local units.

Since there was, during the period material to this case, no local government code enacted by Congress after the
effectivity of the 1987 Constitution nor any law for that matter on the subject of recall of elected government officials,
Evardone contends that there is no basis for COMELEC Resolution No. 2272 and that the recall proceedings in the case
at bar is premature.

The respondent COMELEC, in its Comment (G.R. No. 94010) avers that:

The constitutional provision does not refer only to a local government code which is in futurum but also in esse.
It merely sets forth the guidelines which Congress will consider in amending the provisions of the present Local
Government Code. Pending the enactment of the amendatory law, the existing Local Government Code
remains operative. The adoption of the 1987 Constitution did not abrogate the provisions of BP No. 337, unless
a certain provision thereof is clearly irreconciliable with the provisions of the 1987 Constitution. In this case,
Sections 54 to 59 of Batas Pambansa No. 337 are not inconsistent with the provisions of the Constitution.
Hence, they are operative. 3

We find the contention of the respondent COMELEC meritorious.

Article XVIII, Section 3 of the 1987 Constitution express provides that all existing laws not inconsistent with the 1987 Constitution
shall remain operative, until amended, repealed or revoked. Republic Act No. 7160 providing for the Local Government Code of
1991, approved by the President on 10 October 1991, specifically repeals B.P. Blg. 337 as provided in Sec. 534, Title Four of said
Act. But the Local Government Code of 1991 will take effect only on 1 January 1992 and therefore the old Local Government Code
(B.P. Blg. 337) is still the law applicable to the present case. Prior to the enactment of the new Local Government Code, the
effectiveness of B.P. Blg. 337 was expressly recognized in the proceedings of the 1986 Constitutional Commission. Thus—

MR. NOLLEDO. Besides, pending the enactment of a new Local Government Code under the report of the
Committee on Amendments and Transitory Provisions, the former Local Government Code, which is Batas
Pambansa Blg. 337 shall continue to be effective until repealed by the Congress of the Philippines. 4

Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local elective officials. Section 59 expressly
authorizes the respondent COMELEC to conduct and supervise the process of and election on recall and in the exercise of such
powers, promulgate the necessary rules and regulations.

The Election Code contains no special provisions on the manner of conducting elections for the recall of a local official. Any such
election shall be conducted in the manner and under the rules on special elections, unless otherwise provided by law or rule of the
COMELEC. 5 Thus, pursuant to the rule-making power vested in respondent COMELEC, it promulgated Resolution No. 2272 on 23
May 1990.

We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is valid and constitutional. Consequently, the
respondent COMELEC had the authority to approve the petition for recall and set the date for the signing of said petition.

The next issue for resolution is whether or not the TRO issued by this Court rendered nugatory the signing process of the petition for
recall held pursuant to Resolution No. 2272.
In Governor Zosimo J. Paredes, et al. vs. Executive Secretary to the President of the Philippines, et al., 6 this Court held:

. . . What is sought in this suit is to enjoin respondents particularly respondent Commission from implementing
Batas Pambansa Blg. 86, specifically "from conducting, holding and undertaking the plebiscite provided for in
said act." The petition was filed on December 5, 1980. There was a plea for a restraining order, but
Proclamation No. 2034 fixing the date for such plebiscite on December 6, 1980 had been issued as far as back
as November 11, 1980. Due this delay in to this suit, attributable solely to petitioners, there was no time even to
consider such a plea. The plebiscite was duly held. The certificate of canvass and proclamation of the result
disclosed that out of 2,409 total votes cast in such plebiscite, 2,368 votes were cast in favor of the creation of
the new municipality, which, according to the statute, will be named municipality of Aguinaldo. There were only
40 votes cast against. As a result, such municipality was created. There is no turning back the clock. The moot
and academic character of this petition is thus apparent.

In the present case, the records show that Evardone knew of the Notice of Recall filed by Apelado, et al. on or about 21 February
1990 as evidenced by the Registry Return Receipt; yet, he was not vigilant in following up and determining the outcome of such
notice. Evardone alleges that it was only on or about 3 July 1990 that he came to know about the Resolution of respondent
COMELEC setting the signing of the petition for recall on 14 July 1990. But despite his urgent prayer for the issuance of a TRO,
Evardone filed the petition for prohibition only on 10 July 1990.

Indeed, this Court issued a TRO on 12 July 1990 but the signing of the petition for recall took place just the same on the scheduled
date through no fault of the respondent COMELEC and Apelado, et al. The signing process was undertaken by the constituents of
the Municipality of Sulat and its Election Registrar in good faith and without knowledge of the TRO earlier issued by this Court. As
attested by Election Registrar Sumbilla, about 2,050 of the 6,090 registered voters of Sulat, Eastern Samar or about 34% signed the
petition for recall. As held in Parades vs. Executive Secretary 7 there is no turning back the clock.

The right to recall is complementary to the right to elect or appoint. It is included in the right of suffrage. It is
based on the theory that the electorate must maintain a direct and elastic control over public functionaries. It is
also predicated upon the idea that a public office is "burdened" with public interests and that the representatives
of the people holding public offices are simply agents or servants of the people with definite powers and specific
duties to perform and to follow if they wish to remain in their respective offices. 8

Whether or not the electorate of the Municipality of Sulat has lost confidence in the incumbent mayor is a political question. It
belongs to the realm of politics where only the people are the judge. 9 "Loss of confidence is the formal withdrawal by an electorate
of their trust in a person's ability to discharge his office previously bestowed on him by the same electorate. 10 The constituents
have made a judgment and their will to recall the incumbent mayor (Evardone) has already been ascertained and must be afforded
the highest respect. Thus, the signing process held last 14 July 1990 in Sulat, Eastern Samar, for the recall of Mayor Felipe P.
Evardone of said municipality is valid and has legal effect.

However, recall at this time is no longer possible because of the limitation provided in Sec. 55 (2) of B.P. Blg, 337, which states:

Sec. 55. Who May Be Recalled; Ground for Recall; When Recall May not be Held.— . . .

(2) No recall shall take place within two years from the date of the official's assumption of office or one year
immediately preceding a regular local election.

The Constitution has mandated a synchronized national and local election prior to 30 June 1992, or more specifically, as provided
for in Article XVIII, Sec. 5 — on the second Monday of May, 1992. 11 Thus, to hold an election on recall approximately seven (7)
months before the regular local election will be violative of the above provisions of the applicable Local Government Code (B.P. Blg.
337)

ACCORDINGLY, both petitions are DISMISSED for having become moot and academic.