Fermin vs. COMELEC, 522 SCRA 796 (2007)

4/24/2021 G.R. No. 172563 - MIKE A. FERMIN v. COMELEC, ET AL.
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G.R. No. 172563 - MIKE A. FERMIN v. COMELEC, ET AL.:
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G.R. No. 172563 - MIKE A. FERMIN v. COMELEC, ET AL.
EN BANC
[G.R. NO. 172563 : April 27, 2007]

ChanRobles On-Line Bar
Review MIKE A. FERMIN, Petitioner, v. COMMISSION ON ELECTIONS and ALIMUDIN
A. MACACUA, Respondents.
DECISION
AZCUNA, J.:
This is a petition for certiorari alleging that the Commission on Elections

(COMELEC) en banc acted with grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the Orders dated May 9, 2006 and May 16, 2006.
The facts are:
Petitioner Mike A. Fermin and private respondent Alimudin A. Macacua were

candidates for Mayor in the May 2004 local elections in the Municipality of
Kabuntalan, Maguindanao. The Municipal Board of Canvassers of Kabuntalan
proclaimed petitioner as the duly elected mayor of Kabuntalan. The COMELEC,
ChanRobles CPA Review however, annulled the proclamation due to the failure of clustered polling Precinct
Online No. 25A/26A to function in Barangay Guiawa, Kabuntalan, Maguindanao. The
existence of 264 registered voters in the clustered precinct would affect the results
of the election. Thus, the COMELEC scheduled a special election in clustered
Precinct No. 25A/26A on July 28, 2004.
In the special election of July 28, 2004, private respondent was proclaimed as the
winning candidate for Mayor. Petitioner challenged the special election due to
alleged procedural infirmities. In a Resolution dated June 2, 2005, the COMELEC
nullified the special election. Private respondent's proclamation was set aside and
the vice mayor-elect temporarily assumed the mayoralty post.
The COMELEC scheduled another special election for clustered Precinct No.
25A/26A on May 6, 2006. It constituted a Special Municipal Board of Canvassers
https://www.chanrobles.com/cralaw/2007aprildecisions.php?id=502 1/12
4/24/2021 G.R. No. 172563 - MIKE A. FERMIN v. COMELEC, ET AL. : April 2007 - Philipppine Supreme Court Decisions
(SMBOC) for this purpose. One Hundred Seventy - Eight (178) out of the 264
registered voters cast their votes.
Per SMBOC canvass, petitioner garnered 39 votes, while private respondent

obtained 136 votes. When the election results were added, petitioner and private
respondent got 2,208 votes each, ending in a tie.
Pursuant to Sec. 240 1 of the Omnibus Election Code, SMBOC issued a notice
suspending its proceedings and setting a Special Public Hearing on May 14, 2006.
In a Memorandum dated May 8, 2006, the SMBOC Chairman submitted to

COMELEC a report on the conduct of the second special elections.
On May 9, 2006, private respondent filed with the COMELEC en banc an Extremely
Urgent Omnibus Motion:
ChanRobles Special Lecture

A. To investigate why the May 6, 2006 Special Election was stopped at
Series
2:15 p.m. with 30 to 40 voters still lined-up to vote;
B. To require the SMBOC of Kabuntalan headed by Atty. Radam and the

PNP Contingent headed by a certain Supt. Gunting to show cause why
they should not be held liable for an election offense under paragraphs
(e) and (f), Sec. 261 and Sec. 262 of the Omnibus Election Code; and cralawlibrary
C. To hold in abeyance the Special Public Hearing set by the Board on

May 14, 2006 for purposes of Sec. 240 of the Omnibus Election Code
until after the Commission shall have ruled on the incidents. 2
On even date, the COMELEC issued the first assailed Order dated May 9, 2006, the
dispositive portion of which reads:
The Commission, after due deliberation, hereby orders as follows:
1. to require the petitioner and the Special Municipal Board of

Canvassers of Kabuntalan, Maguindanao to file their respective
comments within five (5) days from receipt hereof;
April-2007 Jurisprudence 2. to hold in abeyance the Special Public Hearing set by the Special
Municipal Board of Canvassers on May 14, 2006; and cralawlibrary
3. to set this Extremely Urgent Omnibus Motion for hearing on May 18,
A.C. No. 5426 - CHITA
2006 at 10:00 a.m., Comelec Session Hall, 8th Floor, Palacio del
PANTOJA-MUMAR v. JANUARIO
Gobernador, Intramuros, Manila.
C. FLORES
SO ORDERED. 3
A.C. No. 1666 - LUISITIO
BALATBAT v. ATTY. EDGARDO Despite the Order dated May 9, 2006, the Special Public Hearing pushed through
ARIAS Y SANCHEZ on May 14, 2006, and the SMBOC proclaimed petitioner as the duly elected Mayor
of Kabuntalan. Private respondent alleged in his Comment 4 that he was absent

A.C. No. 6051 - CELIA during the Special Public Hearing.
ARROYO-PASIDIO v. ATTY.
JEREMIAS R. VITAN On May 16, 2006, the COMELEC en banc issued the second assailed Order, 5 which
annulled the proceedings of the Special Public Hearing conducted on May 14, 2006
A.C. No. 6323 - PABLO R. and set aside the proclamation of petitioner.
OLIVARES ETC. v. ATTY. Hence, this petition.

ARSENIO VILLALON, JR.
The issue is whether or not the COMELEC en banc gravely abused its discretion
A.C. No. 6691 - ATTY. amounting to lack of jurisdiction in issuing the Orders dated May 9, 2006 and May
GEORGE C. BRIONES v. ATTY. 16, 2006.
JACINTO JIMENEZ
Petitioner claims that the COMELEC acted with grave abuse of discretion when it
ruled on private respondent's Extremely Urgent Motion despite the alleged lack of
A.C. No. 6854 - JUAN
sufficient notice to the parties.
DULALIA, JR. v. ATTY. PABLO C.
CRUZ The Court is not persuaded.
Sections 3 and 4, Rule 1 of the COMELEC Rules of Procedure provide:

A.M. No. 03-1462-MTJ -
DOLORES L. ESPA OL v.
LORINDA B. TOLEDO-MUPAS 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
A.M. No. 06-1-10-MCTC - RE: of free, orderly, honest, peaceful and credible elections and to achieve just
ABSENCE W/O OFFICIAL LEAVE expeditious and inexpensive determination and disposition of every action and
OF MS. FERNANDITA BORJA proceeding brought before the Commission.
ETC.
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
A.M. No. 06-2-125-RTC - RE:
any portion thereof may be suspended by the Commission.
DROPPING FROM THE ROLLOS
OF MS. LOLITA BATADLAN ETC. Moreover, Pangandaman v. Commission on Elections 6 held:
A.M. No. 06-8-279-MCTC - Section 2 (1) of Article IX (C) of the Constitution gives the COMELEC the broad
REPORT ON THE JUDICIAL power to 'enforce and administer all laws and regulations relative to the conduct of
AUDIT CONDUCTED ETC. an election, plebiscite, initiative referendum and recall.' There can hardly be any
doubt that the text and intent of this constitutional provision is to give COMELEC
A.M. No. MTJ-07-1673 - all the necessary and incidental powers for it to achieve the objective of holding
VIRGINIA B. SAVELLA v. JUDGE free, orderly, honest, peaceful and credible elections.
ILUMINADA M. INES
xxx
A.M. No. MTJ-07-1674 - More pointedly, this Court recently stated in Tupay Loong v. COMELEC, et al., that '
REMBERT C. KARA-AN v. JUDGE [O]ur elections are not conducted under laboratory conditions. x x x Too often,
FRANCISCO S. LINDO 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
A.M. No. P-04-1924 - OFFICE may not be impeccable, indeed, may even be debatable. We cannot, however,
OF THE COURT ADMINISTRATOR engage in swivel chair criticism of these actions often taken under very difficult
v. JUSTAFINA HOPE T. LAYA, ET circumstances.'
AL.
The purpose of the governing statutes on the conduct of elections'
A.M. No. P-04-1926 - SPS. '. . . [i]s to protect the integrity of elections to suppress all evils that may violate
BIENVENIDO AND LILIBETH its purity and defeat the will of the voters. The purity of the elections is one of the
INOT v. ALEXANDER C. most fundamental requisites of popular government. The Commission on Elections,
RIMANDO by constitutional mandate, must do everything in its power to secure a fair and
honest canvass of votes cast in the elections. In the performance of its duties, the
A.M. No. P-05-2016 - Commission must be given considerable latitude in adopting means and methods
Formerly OCA I.P.I. No. 04- that will insure the accomplishment of the great objective for which it was created
1969-P - PEDRO SALAZAR, ET ' to promote free, orderly, and honest elections. The choice of means taken by the
AL. v. EDMUNDO B. BARRIGA Commission of Elections, unless they are clearly illegal or constitute grave abuse of
discretion, should not be interfered with. 7

A.M. No. P-06-2103 -
Formerly A.M. No. 05-7-430-RTC In this case, the assailed Orders were issued by the COMELEC in the performance
- OFFICE OF THE COURT of its duty to promote free, orderly and honest elections. Private respondent's
ADMINISTRATOR v. ATTY. Extremely Urgent Omnibus Motion invoked COMELEC'S authority to investigate
ROMULO V. PAREDES why the May 6, 2006 Special Election was stopped at 2:15 p.m. with 30 to 40
voters still lined-up to vote and determine the accountability of the SMBOC of
A.M. No. P-06-2177 - Kabuntalan on the matter.
Formerly A.M. No. 06-4-268-RTC

According to private respondent, a scripted scenario of violence initiated by
- FINANCIAL AUDIT
persons identified with petitioner and abetted by the PNP contingent marred the
CONDUCTED ON THE BOOKS OF
second special elections on May 6, 2006. Further, the Chairman of the SMBOC
ACCOUNTS OF ATTY. RAQUEL G.
allegedly stopped the election at 2:15 p.m. although there were still voters lined
KHO
up to vote in the precinct.
A.M. No. P-06-2216 - Hence, the COMELEC issued the first Order dated May 9, 2006 requiring petitioner
Formerly OCA IPI No. 04-2037-P and the SMBOC to file their respective Comments on the omnibus motion, and to
- SAMMY RODRIGUEZ v. JAIME hold in abeyance the Special Public Hearing set on May 14, 2006.
C. EUGENIO
However, despite notice to both parties and the SMBOC, the Special Public Hearing
proceeded on May 14, 2006. In its Order dated May 16, 2006, the COMELEC
A.M. No. P-06-2231 - COC
annulled the proceedings of the Special Public Hearing and set aside the
JUDITH RODRIGO-EBRON ETC v.
proclamation of petitioner therein as the duly elected mayor of Kabuntalan,
JERRY ADOLFO ETC.
evidently for failure to heed its Order dated May 9, 2006.
A.M. No. P-06-2240 - Under the circumstances, COMELEC's action is not tainted with grave abuse of
AMELITA CASTILLO-CASIQUIN v. discretion.
GREGORIA CANSINO Petitioner also assails the COMELEC for taking cognizance of private respondent's
omnibus motion although the matters raised therein did not constitute that of a
A.M. No. P-07-2305 - pre-proclamation controversy, but should have been the subject of a separate
Formerly OCA-I.P.I. No. 07- criminal prosecution for election offenses.
2487-P - MARLITO R. ROBLES v.
The argument is without merit.
SHERWIN M. BALOLOY, ET AL.
Under Section 227 8 of the Omnibus Election Code, the COMELEC is vested with the
A.M. No. P-07-2310 - power of direct control and supervision over the board of canvassers; hence, it
Formerly OCA IPI No. 04-2003-P took cognizance of the complaint in the omnibus motion which questioned the
- NENITA Q. SULAPAS v. conduct of the special elections by the SMBOC.
SAMUEL G. BASCO
The Solicitor General aptly stated that the COMELEC cannot just cast a blind eye
A.M. No. P-07-2313 - and concede to be powerless in the midst of allegations of electoral fraud and
ZELINDA NICOPIOR v. JOSE violence in the second special elections held in Precinct 25A/26A in Kabuntalan,
RENE C. VASQUEZ Maguindanao by the mere expedient of an alleged procedural flaw on the part of
the party aggrieved. To do so would be an abandonment of COMELEC's
A.M. No. RTJ-02-1735 - SPS. constitutionally enshrined duty of ensuring an honest and clean election.
RODOLFO & SYLVIA CABICO v.

Petitioner's allegation of grave abuse of discretion by the COMELEC in issuing the
JUDGE EVELYN L.
assailed Orders implies capricious and whimsical exercise of judgment amounting
DIMACULANGAN-QUERIJERO
to lack of jurisdiction, or arbitrary and despotic exercise of power because of
ETC.
passion or personal hostility. 9 It is absent in this case.
A.M. No. RTJ-03-1749 - WHEREFORE, the petition for certiorari is DISMISSED. The Orders of the
EDUARDO SAN MIGUEL v. COMELEC dated May 9, 2006 and May 16, 2006 are AFFIRMED.
JUDGE BONIFACIO SANZ
Costs against petitioner.
MACEDA ETC.
SO ORDERED.
A.M. No. RTJ-05-1932 -
HUMBERTO C. LIM, JR. ETC. v. Endnotes:
JUDGE DEMOSTHENES L.
MAGALLANES ET AL. 1 Sec. 240. Election resulting in a tie. Whenever it shall appear from
the canvass that two or more candidates have received an equal and
A.M. No. RTJ-06-2019 and highest number of votes, or in cases where two or more candidates are
Formerly A.M. No. 06-7-418-RTC to be elected for the same position and two or more candidates
- SHARON S. ALEGRIA v. JUDGE received the same number of votes for the last place in the number to
MANUEL N. DUQUE ETC. be elected, the board of canvassers, after recording this fact in its
minutes, shall by resolution, upon five days notice to all the tied
A.M. No. RTJ-07-2042 - candidates, hold a special public meeting at which the board of
FELIPE G. PACQUING v. canvassers shall proceed to the drawing of lots of the candidates who
BENEDICTO G. COBARDE have tied and shall proclaim as elected the candidates who may be
favored by luck, and the candidates so proclaimed shall have the right
G.R. No. 134062 - to assume office in the same manner as if he had been elected by
COMMISSIONER OF INTERNAL plurality of vote. The board of canvassers shall forthwith make a
REVENUE v. BANK OF THE certificate stating the name of the candidate who had been favored by
PHILIPPINE ISLANDS luck and his proclamation on the basis thereof. Nothing in this section
shall be construed as depriving a candidate of his right to contest the
G.R. No. 138208 - SPS. election.
ISIDRO "ABEL" CRUZ, ETC. v.
2 Rollo, p..41.
SPS. FLORENCIO & AMPARO
CARAOS, ET AL.
3 Id. at 36.
G.R. No. 138967 - LEIDEN E. 4 Id. at 94.

FERNANDEZ, ET AL. v. NICASIO
ANINON, ET AL. 5 Id. at 37.
6 G.R. No. 134340, November 25, 1999, 319 SCRA 283.

G.R. No. 140842 - RUFINA
CHUA v. THE COURT OF 7 Id. at 299-300.
APPEALS, ET AL.
8 Sec. 227. Supervision and control over board of canvassers. the
G.R. No. 141181 - SAMSON Commission shall have direct control and supervision over the board of
CHING v. CLARITA NICDAO, ET canvassers. Any member of the board of canvassers may, at any time,
AL. be relieved for cause and substituted motu proprio by the Commission.
9 Batul v. Bayron, G. R. Nos. 157687 & 158959, February 26, 2004,
G.R. NOS. 142369-70 - 424 SCRA 26, 41.
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NOVERAS

THE PHILIPPINES v. JUDITH
JATULAN Y PONCE
G.R. No. 171882 - CORNELIO

EWOC, ET AL. v. COMELEC, ET
AL.
G.R. No. 172103 - CITIZEN'S

BATTLE AGAINST CORRUPTION
v. COMELEC, ET AL.

THE PHILIPPINES v. WARLITO C.
FERNANDEZ
G.R. No. 172131 - LIWAYWAY

VINZONS-CHATO v. COMELEC,
ET AL.

THE PHILIPPINES v. CELINO
NABONG Y OSENAR, ET AL.
G.R. No. 172563 - MIKE A.

FERMIN v. COMELEC, ET AL.
G.R. No. 172602 - HENRY T.

GO v. THE 5TH DIV.,
SANDIGANBAYAN ET AL.

THE PHILIPPINES v. AC-MAD
PANDAPATAN Y DIMALAPANG

THE PHILIPPINES v. ROQUE G.
GARALDE

THE PHILIPPINES v. ROGER DE
GUZMAN Y LAUCHANGCO
G.R. No. 173787 - THE

PEOPLE OF THE PHILIPPINES v.
MARIO GUILLERMO Y ESTEBAN

THE PHILIPPINES v. LOIDA R.
SORIANO, ET AL.
G.R. No. 174470 - Formerly

G. R. Nos. 159844-46 - PEOPLE
OF THE PHILIPPINES v.
FILOMINO LIZANO Y MARVILLA

A. DIMAYUGA v. COMELEC, ET
AL.
G.R. No. 175112 - DAVID K.

SALAZAR v. COMELEC, ET AL.
G.R. No. 175451 - ROSARIO

L. DADULO v. THE HON. COURT
OF APPEALS, ET AL.
G.R. No. 175895 - EDMUNDO

JOSE BUENCAMINO v. HON.
COURT OF APPEALS, ET AL.
G.R. No. 176653 - IN THE

MATTER OF THE APPLICATION
ETC. v. HON. ERNESTO P.
PAGAYATAN, ET AL.
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Fermin vs. COMELEC, 522 SCRA 796 (2007)

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4/24/2021 G.R. No. 172563 - MIKE A. FERMIN v. COMELEC, ET AL.

: April 2007 - Philipppine Supreme Court Decisions

Home Law Firm Law Library Laws Jurisprudence

April 2007 - Philippine Supreme Court Decisions/Resolutions

Philippine Supreme Court

G.R. No. 172563 - MIKE A. FERMIN v. COMELEC, ET AL.

[G.R. NO. 172563 : April 27, 2007]

This is a petition for certiorari alleging that the Commission on Elections

The facts are:

Petitioner Mike A. Fermin and private respondent Alimudin A. Macacua were

Per SMBOC canvass, petitioner garnered 39 votes, while private respondent

In a Memorandum dated May 8, 2006, the SMBOC Chairman submitted to

ChanRobles Special Lecture

B. To require the SMBOC of Kabuntalan headed by Atty. Radam and the

C. To hold in abeyance the Special Public Hearing set by the Board on

until after the Commission shall have ruled on the incidents. 2

The Commission, after due deliberation, hereby orders as follows:

1. to require the petitioner and the Special Municipal Board of

of Kabuntalan. Private respondent alleged in his Comment 4 that he was absent

OLIVARES ETC. v. ATTY. Hence, this petition.

GEORGE C. BRIONES v. ATTY. 16, 2006.

Sections 3 and 4, Rule 1 of the COMELEC Rules of Procedure provide:

discretion, should not be interfered with. 7

A.M. No. P-06-2177 - Kabuntalan on the matter.

Formerly A.M. No. 06-4-268-RTC

RODOLFO & SYLVIA CABICO v.

G.R. No. 138967 - LEIDEN E. 4 Id. at 94.

6 G.R. No. 134340, November 25, 1999, 319 SCRA 283.

G.R. No. 143337 - URBANA T.

G.R. No. 143482 - CONRADO

G.R. No. 144158 - NPC

G.R. No. 144474 - SAMAR II

G.R. No. 147590 - ANTONIO

G.R. No. 149875 - AMA

G.R. No. 150066 - SPS.

G.R. No. 150091 - YOLANDA

G.R. No. 153284 - REGIONAL

G.R. No. 153675 -

G.R. No. 154018 - MARTIN

G.R. No. 154207 -

G.R. No. 154356 - BANGKO

G.R. No. 154502 - EMMIE

G.R. No. 155223 - BOBIE

G.R. No. 155483 - HEIRS OF

G.R. No. 155785 - SIMPLICIO

G.R. No. 156182 -

G.R. No. 156251 - PHIL.

G.R. No. 158499 - NS

G.R. No. 158762 - SILVANO

G.R. No. 159785 - TEOFISTO

G.R. No. 160502 - TANJAY

G.R. No. 160889 - DR.

G.R. No. 160959 - ANTONIO

G.R. No. 161234 - REY

G.R. No. 161338 - LUZ

G.R. No. 161829 - ARCADIO

G.R. No. 161864 - SPS.

G.R. No. 162049 - NARCISO

G.R. No. 162288 - MACTAN-

G.R. No. 163021 - PATRICIO

G.R. No. 163118 - DORIS

G.R. No. 163235 - VIVA

G.R. No. 163287 - ORION