Moya v. Del Fierro, 69 Phil.

199 (1930) FACTS:In the general

elections held on December 14, 1937, respondent Agripino Ga.
Del Fierro andpetitioner Ireneo Moya were contending candidates
for the office of the mayor of theMunicipality of Paracale,
Camarines Noret. After canvass of the returns, the Board
ofcanvassers proclaimed petitioner as the elected mayor with a
majority of 102 votes. However,respondent filed a motion of
protest and judgment was rendered in favor of
respondent,declaring him as the candidate-elect with a majority of
3 votes over his rival. Petitioner nowseeks said judgment for
review alleging the ff:a.In admitting and counting in favor of the
respondent, 8 ballots either inadvertentlyor contrary to the
controlling decisions of this Honorable Courtb.In admitting and
counting in favor of the respondent, 3 ballots marked "R.
delFierro."c.In admitting and counting in favor of the respondent,
7 ballots marked "Rufino delFirro."d.In admitting and counting in
favor of the respondent, 72 ballots marked "P. delFierro."
ISSUE:Whether or not petitioner’s contentions are tenable
HELD:NO Republicanism, in so far as it implies the adoption of a
representative type of government,necessarily points to the
enfranchised citizen as a particle of popular sovereignty and as
theultimate source of the established authority. He has a voice in
his Government and whenevercalled upon to act in justifiable
cases, to give it efficacy and not to stifle it. This,fundamentally, is
the reason for the rule that ballots should be read and
appreciated, if notwith utmost, with reasonable, liberality.It is
sufficient to observe, however, in this connection that whatever
might have been said incases heretofore decided, no technical
rule or rules should be permitted to defeat theintention of the
voter, if that intention is discoverable from the ballot itself, not
from evidencealiunde. This rule of interpretation goes to the very
root of the system. Rationally, also, thismust be the justification for
the suggested liberalization of the rules on appreciation of
ballotswhich are now incorporated in section 144 of the Election
Code (Commonwealth Act No.357).
G.R. No. L-46863 November 18, 1939

IRINEO MOYA, petitioner,

vs.
AGRIPINO GA. DEL FIERO, respondent.

Elpidio Quirino for petitioner.

Claro M. Recto for respondent.

LAUREL, J.:

This is a petition for review by certiorari of the judgment of the

Court of Appeals in the above entitled case declaring the
respondent, Agripino Ga. del Fierro, the candidate-elect for the
office of mayor of the municipality of Paracale, Province of
Camarines Norte, with a majority of three votes over his rival,
Irineo Moya. In the general elections held on December 14, 1937,
the parties herein were contending candidates for the aforesaid
office. After canvass of the returns the municipal council of
Paracale, acting as board of canvassers, proclaimed the
petitioner as the elected mayor of said municipality with a majority
of 102 votes. On December 27, 1937, the respondent field a
motion of protest in the Court of First Instance of Camarines
Norte, the Court of Appeals, on July 13, 1939 rendered the
judgment hereinbefore mentioned which is sought by the
petitioner to be reviewed and reversed upon the errors alleged to
have been committed by the Court of Appeals:

1. In admitting and counting in favor of the respondent, 8

ballots either inadvertently or contrary to the controlling
decisions of this Honorable Court.

2. In admitting and counting in favor of the respondent, 3

ballots marked "R. del Fierro."
 3. In admitting and counting in favor of the respondent, 7
ballots marked "Rufino del Firro."

4. In admitting and counting in favor of the respondent, 72

ballots marked "P. del Fierro."

Taking up seriatim the alleged errors, we come to the first

assignment involving the eight (8) ballots now to be mentioned.
(1) With reference to ballot Exhibit F-175 in precinct No. 2, alleged
to have been inadvertently admitted in favor of the respondent,
such inadvertence raises a question of fact which could have
been corrected by the Court of Appeals and which could we are
not in a position to determine in this proceeding for review
by certiorari. Upon the other hand, if the error attributed to the
Court of Appeals consisted in having admitted ballot Exhibit F-175
in precinct No. 2 instead of the ballot bearing the same number
corresponding to precinct No. 1, and this latter ballot clearly
appears admissible for the respondent because the name written
on the space for mayor is "Primo del Fierro" or "Pimo de Fierro",
the error is technical and deserves but scanty consideration. (2)
Ballot Exhibit F-26 in precinct No. 3 was erroneously admitted for
the respondent by the Court of Appeals, the name written on the
space for mayor being "G.T. Krandes." It is true that on the fourth
line for the councilor "Alcalde Pinong del Fierro": appears; but the
intention of the elector is rendered vague and incapable of
ascertaining and the ballot was improperly counted for the
respondent. As to this ballot, the contention of the petitioner is
sustained (3) Ballot Exhibit F-77 in precinct No. 2 should also
have been rejected by the Court of Appeals. The ballot bears the
distinguishing mark "O. K." placed after the name "M. Lopis"
written on space for vice-mayor. The contention of the petitioner
in this respect is likewise sustained. (4) Ballot Exhibit F-9 in
precinct No. 2 was properly admitted for respondent. On this
ballot the elector wrote within the space for mayor the name of
Regino Guinto, a candidate for the provincial board and wrote the
respondent's name immediately below the line for mayor but
immediately above the name "M. Lopez" voted by him for vice-
mayor. The intention of the elector to vote for the respondent for
the office of the mayor is clear under the circumstances. (5) Ballot
F-131 in precinct No. 1 was also properly counted for the
respondent. On this ballot the elector wrote the respondent's
name on the space for vice-mayor, but, apparently realizing his
mistake, he placed an arrow connecting the name of the
respondent to the word "Mayor" (Alcalde) printed on the left side
of the ballot. The intention of the elector to vote for the respondent
for the office of mayor is thus evident, in the absence of proof
showing that the ballot had been tampered with. (6) Ballot F-7 in
precinct No. 5 is admissible for the respondent and the Court of
Appeals committed no error in so adjudicating. Although the name
of the respondent is written on the first space for member of the
provincial board, said name is followed in the next line by "Bice"
Culastico Palma, which latter name is followed in the next line by
word "consehal" and the name of a candidate for this position.
The intention of the elector to vote for the respondent for the
office of mayor being manifest, the objection of the petitioner to
the admission of this ballot is overruled. (7) Ballot F-1 in precinct
No. 2 is valid for the respondent. On this ballot the Christian name
of the respondent was written on the second space for member of
the provincial board, but his surname was written on the proper
space for mayor with no other accompanying name or names.
The intention of the elector being manifest, the same should be
given effect in favor of the respondent. (8) Ballot F-44 in precinct
No. 2 wherein "Agripino F. Garcia" appears written on the proper
space, is valid for the respondent. In his certificate of candidacy
the respondent gave his name as "Agripino Ga. del Fierro." The
conclusion of the trial court, upheld by the Court of Appeals, that
the letter "F" stands for "Fierro" and "Garcia" for the contraction
"Ga." is not without justification and, by liberal construction, the
ballot in question was properly admitted for the respondent.
The second error assigned by the petitioner refers to three ballots,
namely, Exhibit F-119 in precinct No. 1 Exhibit F-24 in precinct
No. 2, and Exhibit F-6 in precinct No. 4. These three ballots
appear to be among the 75 ballots found by the Court of Appeals
as acceptable for the respondent on the ground that the initial
letter "P" stands for "Pino" in "Pino del Fierro" which is a name
mentioned in the certificate of candidacy of the respondent. The
petitioner contends that the initial "R" and not "P". Even if we
could reverse this finding, we do not feel justified in doing so after
examining the photostatic copies of these ballots attached to the
herein petition for certiorari. The second assignment of error is
accordingly overruled.

Upon the third assignment of error, the petitioner questions the

correctness of the judgment of the Court of Appeals in
adjudicating to the respondent the seven ballots wherein "Rufino
del Fierro" was voted for the office of mayor. We are of the
opinion that the position taken by the Court of Appeals is correct.
There was no other candidate for the office of mayor with the
name of "Rufino" or similar name and, as the respondent was
districtly identified by his surname on these ballots, the intention
of the voters in preparing the same was undoubtedly to vote for
the respondent of the office for which he was a
candidate.lawphi1.net

The fourth assignment of error deals with the 72 ballots wherein

"P. del Fierro" was voted for the office of mayor, and it is the
contention of the petitioner that said ballots should not have been
counted by the Court of Appeals in favor of the respondent. For
the identical reason indicated under the discussion of petitioner's
second assignment of error, namely, that "P" stands for "Pino" in
"Pino del Fierro" which is a name mentioned in the certificate of
candidacy of the respondent, we hold that there was no error in
the action of the Court of Appeals in awarding the said ballots to
the respondent.
With the exception of ballot marked as Exhibit F-26 in precinct No.
3 and ballot marked as Exhibit F-77 in precinct No. 2, we are
inclined to accept the rest of the disputed ballots for the
respondent not only for the specific reasons already given but
also and principally for the more fundamental reason now to be
stated. As long as popular government is an end to be achieved
and safeguarded, suffrage, whatever may be the modality and
form devised, must continue to be the manes by which the great
reservoir of power must be emptied into the receptacular
agencies wrought by the people through their Constitution in the
interest of good government and the common weal.
Republicanism, in so far as it implies the adoption of a
representative type of government, necessarily points to the
enfranchised citizen as a particle of popular sovereignty and as
the ultimate source of the established authority. He has a voice in
his Government and whenever called upon to act in justifiable
cases, to give it efficacy and not to stifle it. This, fundamentally, is
the reason for the rule that ballots should be read and
appreciated, if not with utmost, with reasonable, liberality.
Counsel for both parties have called our attention to the different
and divergent rules laid down by this Court on the appreciation of
ballots. It will serve no good and useful purpose for us to engage
in the task of reconciliation or harmonization of these rules,
although this may perhaps be undertaken, as no two cases will be
found to be exactly the same in factual or legal environment. It is
sufficient to observe, however, in this connection that whatever
might have been said in cases heretofore decided, no technical
rule or rules should be permitted to defeat the intention of the
voter, if that intention is discoverable from the ballot itself, not
from evidence aliunde. This rule of interpretation goes to the very
root of the system. Rationally, also, this must be the justification
for the suggested liberalization of the rules on appreciation of
ballots which are now incorporated in section 144 of the Election
Code (Commonwealth Act No. 357).
It results that, crediting the petitioner with the two ballots herein
held to have been erroneously admitted by the Court of Appeals
for the respondent, the latter still wins by one vote. In view
whereof it becomes unnecessary to consider the counter-
assignment of errors of the respondent.

With the modification of the decision of the Court of Appeals, the

petition for the writ of certiorari is hereby dismissed, without
pronouncement regarding costs.

G.R. No. L-29333 February 27, 1969

MARIANO LL. BADELLES, protestant-appellant,

vs.
CAMILO P. CABILI, protegee-appellee.

--------------------------

G.R. No. L-29334 February 27, 1969

BONIFACIO P. LEGASPI and CECILlO T.

BARAZON protestants-appellants,
vs.
FELIX Z. ACTUB, PROVIDENCIO P. ABRAGAN, MANUEL F.
CELDRAN, CASIMERO P. CABIGON and BENITO
ONG, protestees-appellees.

Bonifacio P. Legaspi for and in his own behalf.

Camilo P. Cabili. Gerardo B. Padilla and Ignacio Español and
Voltaire I. Roviro for protestees-appellees.

FERNANDO, J.:

Two election protests against the duly proclaimed Mayor and

Councilors of Iligan City, after the Nov. 14, 1967 elections, based
on the allegations of flagrant violations of certain mandatory
provisions of the Election Code, to be more specifically set forth
hereafter, were dismissed in a single order by the Court of First
Instance of Lanao del Norte, the Honorable Teodulo C. Tandayag
presiding. The cases are now before us on appeal.

In one of them, 1 the election of Honorable Camilo P. Cabili to the

Office of City Mayor of Iligan City, was contested by protestant,
now appellant, Mariano Badelles. In the other, 2 the protestants
are the now appellants, Bonifacio P. Legaspi and Cecilia T.
Barazon who along with the five protestees 3 were among those
who were registered candidates voted for in such election for
councilors in the City of Iligan, with the protestees being credited
with the five highest number of votes, with protestants Legaspi
and Barazon obtaining sixth and seventh places, respectively.

In such order of dismissal, it was admitted that while irregularities

as well as misconduct on the part of election officers were alleged
in the election protests filed, there was however an absence of an
allegation that they would change the result of the election in
favor of the protestants and against the protestees, that such
irregularities would destroy the secrecy and integrity of the ballots
cast, or that the protestees knew of or participated in the
commission thereof. For the lower court then, the lack of a cause
of action was rather evident.

Hence the order of dismissal of March 23, 1968, which was

sought to be fortified by the invocation of the doctrines that voters
should not be deprived of their right to vote occasioned by the
failure of the election officials to comply with the formal
prerequisites to the exercise of the right of suffrage and that the
rules and regulations for the conduct of elections while mandatory
before the voting should be considered directory thereafter. The
validity of such order of dismissal is now to be inquired into by us
in this appeal.

In the petition of protestant Badelles, dated December 8, 1967,

and marked as received the next day by the Clerk of Court of the
Court of First Instance of Lanao del Norte, 15th Judicial District, it
was stated that both he and protestee Camilo P. Cabili were the
duly registered candidates for the Office of City Mayor of Iligan
City, both having filed their respective certificates of candidacy in
accordance with law and as such candidates voted for in the
November 14, 1967 election. It was then alleged that the Board of
Canvassers, on November 25, 1967, proclaimed as elected
protestee for having obtained 11,310 votes while protestant was
credited with 8,966 votes. Protestant would impugn the election of
Cabili on the ground that there were "flagrant violation of
mandatory provisions of law relating to or governing elections ...."
in that more than 200 voters were registered per precinct contrary
to the provision limiting such number of 200 only and that no
publication of the list of voters for each precinct was made up to
the election day itself, enabling persons who under the law could
not vote being allowed to do so. As a result of such alleged
"flagrant violations of the laws relation to or governing elections"
around 8,300 individuals were allowed to vote illegally.

It was likewise asserted that not less than 8,000 qualified voters
were unable to exercise their right of suffrage in view of their
failure, without any fault on their part, to have the proper
identification cards or the non-listing of their names in the list of
voters. It was stated further that even in the case of those
individuals provided with identification cards with their names
included in the list of voters, they could not avail themselves of
their right of suffrage as their applications for registration could
not be found. Mention was also made of the fact that the final lists
of voters and the applications for registration were delivered to
their respective precincts late on election day itself thus
preventing them from voting. Moreover, confusion, so it was
alleged, was caused by the excessive number of voters being
listed and many having been assigned to precincts other than the
correct ones.
What was thus objected to is the fact that illegal votes were cast
by those not qualified to do so, numbering 8,300 or more and that
an approximately equal number, who were duly registered with
the Commission on Elections, Iligan City, were unable to vote due
to the above circumstances. The proclamation then could not
have reflected the true will of the electorate as to who was the
mayor elected, as the majority of protestee Cabili over the
protestant consisted of only 2,344 votes.

The prayer was among others for the proclamation of protestee

as well as other candidates for elective positions in the City of
Iligan being set aside and declared null and void, protestant
pleading further that he be granted other such relief as may be
warranted in law and equity.

The protest of the candidates for councilor Legaspi and Barazon

in the other case against protestees 4 was in substance similarly
worded. The prayer was for the setting aside and declaring null
and void the proclamation of protestees with protestants seeking
such other relief which should be theirs according to law and to
equity.

In the first case, protestee Cabili moved to dismiss the petition on

the following grounds: "1. That the protest was filed beyond the
reglementary period allowed by the Revised Election Code; 2.
That [the lower court] has no jurisdiction over the subject matter of
the present case, the Commission on Elections being the proper
body to hear the same; 3. That the complaint states no cause of
action." 5 This very same grounds were relied upon in a motion to
dismiss by protestees Actub and Cabigon, filed in the other suit.

As above noted, in a single order of March 23, 1968, the two

above election protests were dismissed, the lower court being of
the opinion that neither petition alleged a cause of action "to
justify [it] to try the same." The first ground of the motion to
dismiss to the effect that the protests in both cases were filed
beyond the reglementary period was rejected. The claim as to
lack of jurisdiction was likewise held to be without merit. The
single order of dismissal in both cases as indicated was based on
the lack of a cause of action.

The reasoning followed by the lower court in reaching the above

conclusion that there was no cause of action, proceeded along
these lines: "Mere irregularities or misconduct on the part of
election officers which do not tend to affect the result of the
elections are not of themselves either ground for contest or for
proper matters of inquiry... There is no allegation in the protest
that the alleged irregularities committed by the election officers
would tend to change the result of the election in favor of the
protestants and against the protestees. There is no allegation in
the petition that the 8,000 voters who failed to vote were all voters
of protestants and the 8,300 illegal voters who voted were for the
protestees. There is, therefore, no legal and practical justification
for the court to inquire into the irregularities committed by the
election officials, as alleged in the petition, for it would not give
any benefit in favor of the protestants to the end that they will be
declared the duly elected mayor and councilors, respectively, of
this City." 6

It was further stated in such order of dismissal: "There is no

allegation in the petition that the irregularities committed by the
election officials have destroyed the secrecy and integrity of the
ballots cast. There is no allegation in the petition that the non-
compliance of the election officials of the provisions of the election
laws regarding the registration of voters were intentional on their
part for the purpose of committing frauds for the benefit of the
protestees. There is no allegation in the petition that because of
the alleged irregularities committed by the election officials in not
following the provisions of the election laws regarding the
registration of voters and the distribution of the precincts, that all
the votes cast during said elections are illegal, nor is there an
allegation in the protests that the irregularities committed by the
election officials would affect the election in favor of the
protestees." 7

A greater regard for the cause of accuracy ought to have

admonished the lower court from asserting in an uncompromising
tone the absence of an allegation that the protestants in both
cases failed to allege that if the facts pleaded by them were
proved the result would not have been different. It is true the
complaints could have been more explicitly worded, but as they
stood, the absence of such a claim could not be so confidently
asserted.

To repeat, both protests were dismissed. We do not discount a

certain degree of plausibility attaching to the line of reasoning
thus pursued by the lower court. We are not unaware of the
undeniable fact that both petitions were not distinguished by skill
in their drafting or precision in their terminology. Nonetheless the
seriousness and gravity of the imputed failure to have the
elections conducted freely and honestly, with such irregularities
alleged, give rise to doubts, rational and honest, as to who were
the duly elected officials. Such allegations, it is to be stressed,
would have to be accepted at their face value for the purpose of
determining whether there is a cause of action, a motion to
dismiss amounting to a hypothetical admission of facts thus
pleaded. We cannot in law and in conscience then sustain the
order of dismissal.

Without the lower court having so intended, the dismissal would

amount to judicial abnegation of a sworn duty to inquire into and
pass upon in an appropriate proceeding allegations of misconduct
and misdeeds of such character. Accordingly, we reverse.

Abes v. Commission on Elections 8 points the way, but the lower

court was apparently impervious to its teaching. It may not be
controlling, but it furnishes more than a hint. It would seem,
though, that for the court below, its message did not ring out loud
and clear.

The opinion in the Abes case, penned by Justice Sanchez, starts

thus: "Petitioner's cry for relief, so their petition avers, is planted
upon the constitutional mandate of free, orderly, and honest
elections. Specifically, they list a number of repressible acts."
Among those mentioned were that blank official registration forms
were taken from the office of the Quezon City Comelec Register
several weeks before election day, November 14, 1967; that
active campaigning within the polling places by Nacionalista
leaders or sympathizers of Nacionalista candidates were allowed;
that voters were permitted to vote on mere mimeographed notices
of certain Nacionalista candidates; that voters were compelled to
fill their official ballots on open tables, desks and in many
precincts outside the polling places; that thousands of voters
sympathetic to the Nacionalista candidates were allowed to vote
beyond the hours for voting allowed by law; that identification
cards were delivered by partisan leaders of respondents
Nacionalista candidates, and those who did not signify their
preference for Nacionalista candidates were not given such cards;
that the precinct books of voters were not sealed within the
deadline fixed by law; and that the resulting effect of irregularities
was to prevent full fifty-one per cent of the registered voters from
voting.

One of the issues raised on the above facts is whether or not the
Commission on Elections could annul the aforesaid election in
Quezon City on the above allegations of fraud, terrorism and
other illegal practices committed before and during the election.
The petition did not prosper; it was dismissed. The remedy, we
held, lay not with the Commission on Elections but with the courts
of justice in an election protest.
In the language of Justice Sanchez: "The boundaries of the
forbidden area into which Comelec may not tread are also marked
by jurisprudence. That Comelec is not the proper forum to seek
annulment of an election based on terrorism, frauds and other
illegal practices, is a principle emphasized in decisions of this
Court." For as announced in Nacionalista Party v. Commission on
Elections, 9 assuming that there be a failure to conduct an election
in a free, orderly and honest manner, "the duty to cure or remedy
the resulting evil" did not rest with the Commission on Elections
but in "some other agencies of the Government." More
specifically, with reference to provincial and municipal officials,
election contests "are entrusted to the courts." Then came this
express affirmation: "The power to decide election contests
necessarily includes the power to determine the validity or nullity
of the votes questioned by either of the contestants." .

As so emphatically observed in the Abes opinion, "there has been

neither deviation nor retreat from the foregoing pronouncement."
After which came the following: "The ratiocination advanced that
there was failure of election due to rampancy of terrorism, frauds,
and other irregularities, before and during elections, such that
allegedly about 51% of the registered voters were not able to
vote, will not carry the day for petitioners. For, in the first place,
this is grounded upon bare assertions. Respondents contest the
correctness thereof. And in the answer of respondents Amoranto,
Mathay and others, they aver that out of 162,457 registered
voters in Quezon City, 100,382 voters actually cast their votes —
about 62% of the registered voters. But above all, as pointed out
in City Board of Canvassers vs. Moscoso, [the] nullity of an
election for municipal officials should be determined in a petition
contesting the election of municipal officers-elect to be filed before
the Court of First Instance."

Why an election protest is more fitly and appropriately the

procedure for determining whether irregularities or serious
violations of the electoral law vitiated the conduct of elections was
clearly and succinctly explained in the Moscoso decision above
cited, the opinion coming from Justice Makalintal. 10 Thus: "The
question of whether or not there had been terrorism, vote-buying
and other irregularities in the 1959 elections in Tacloban City
should be ventilated in a regular election protest, pursuant to
section 174 of the Election Code, and not in a petition to enjoin
the city board of canvassers from canvassing the election returns
and proclaiming the winning candidates for municipal offices."

It would follow then that if the grievance relied upon is the

widespread irregularities and the flagrant violations of the election
law, the proper remedy is the one availed of here, the protest.

That such should be the case should occasion no surprise. Time

and time again, 11 we have stressed the importance of preserving
inviolate the right of suffrage. If that right be disregarded or
frittered away, then popular sovereignty becomes a myth.

As Justice Laurel correctly pointed out: "As long as popular

government is an end to be achieved and safeguarded, suffrage,
whatever may be the modality and form devised, must continue to
be the means by which the great reservoir of power must be
emptied into the receptacular agencies wrought by the people
through their Constitution in the interest of good government and
the common weal. Republicanism, in so far as it implies the
adoption of a representative type of government, necessarily
points to the enfranchised citizen as a particle of popular
sovereignty and as the ultimate source of the established
authority." 12

A republic then to be true to its name requires that the

government rests on the consent of the people, consent freely
given, intelligently arrived at, honestly recorded, and thereafter
counted. Only thus can they be really looked upon as the ultimate
sources of established authority. It is their undeniable right to
have officials of their unfettered choice. The election law has no
justification except as a means for assuring a free, honest and
orderly expression of their views. It is of the essence that
corruption and irregularities should not be permitted to taint the
electoral process.

It may not always be thus unfortunately. That should be the ideal

however. If there be a failure to observe the mandates of the
Election Code, the aggrieved parties should not be left
remediless. Under the law as it stands, it is precisely an election
protest that fitly serves that purpose.lawphi1.nêt

It was sought to be thus utilized in these two cases, perhaps in a

rather awkward and far from entirely satisfactory manner. Than
itself is no reason for the courts to slam the door against any
opportunity for redress. Yet, that is what would happen if the order
of dismissal complained of were not set aside.

Hence the inevitability of its reversal. The scope of our decision

must not be misinterpreted however. All that it directs is that the
protetees in both cases be required to answer. Thereafter, if, as is
not unlikely, there be a denial of the serious imputations made as
to the alleged irregularities, the lower court could properly inquire
into what actually transpired. After the facts are thus ascertained
in accordance with the accepted procedural rules, then the
appropriate law could be applied.

It must be clearly emphasized that we do not at this stage intimate

any view as to the merit, or lack of it, of either protest. That would
be premature to say the least. All we do is to set aside the order
of dismissal.

WHEREFORE, the order of dismissal of March 23, 1968, is

reversed and the two cases remanded to the lower court for
proceeding and trial in accordance with this opinion and the law.
Without costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,
Sanchez, Castro, Capistrano and Teehankee, JJ., concur.

DISSENTING OPINION
PUNO, J.:

The case at bar transcends the political fortunes of respondent

Senator Gregorio B. Honasan. At issue is the right of the people
to elect their representatives on the basis and only on the basis of
an informed judgment. The issue strikes at the heart of
democracy and representative government for without this right,
the sovereignty of the people is a mere chimera and the rule of
the majority will be no more than mobocracy. To clarify and
sharpen the issue, 1 shall first unfurl the facts.

I. Facts

The facts are undisputed. In February 2001, a Senate seat for a

term expiring on June 30, 2004 was vacated with the appointment
of then Senator Teofisto Guingona, Jr. as Vice-President of the
Philippines. The Senate adopted Resolution No. 84 certifying “the
existence of a vacancy in the Senate and calling the Commission
on Elections (COMELEC) to fill up such vacancy through election
to be held simultaneously with the regular election on May 14,
2001, and the senatorial candidate garnering the thirteenth (13th)
highest number of votes shall serve only for the unexpired term of
former Senator Teofisto T. Guingona, Jr.” In the deliberations of
the Senate on the resolution, the body agreed that the procedure
it adopted for determining the winner in the special election was
for the “guidance” and “implementation” of the COMELEC. The
COMELEC had no discretion to alter the procedure.
Nobody filed a certificate of candidacy to fill the position of
senator to serve the unexpired three-year term in the special
election. All the senatorial candidates filed the certificates of
candidacy for the twelve regular Senate seats to be vacated on
June 30, 2001 with a six-year term expiring on June 30, 2007.
COMELEC distributed nationwide official documents such as the
Voter Information Sheet, List of Candidates and Sample Ballot.
The List of Candidates did not indicate a separate list of
candidates for the special election. The Sample Ballot and the
official ballots did not provide two different categories of Senate
seats to be voted, namely the twelve regular six-year term seats
and the single three-year term seat. Nor did the ballots provide a
separate space for the candidate to be voted in the special
election and instead provided thirteen spaces for thirteen
senatorial seats.

Without any COMELEC resolution or notice on the time, place

and manner of conduct of the special election, the special election
for senator was held on the scheduled May 14, 2001 regular
elections. A single canvass of votes for a single list of senatorial
candidates was done. On June 5, 2001, respondent COMELEC
promulgated COMELEC Resolution No. NBC01-005, the
dispositive portion of which reads, viz:

NOW, THEREFORE, by virtue of the powers vested in it under

the Constitution, Omnibus Election Code and other election laws,
the Commission on Elections sitting En Banc as the National
Board of Canvassers hereby proclaims the above-named thirteen
(13) candidates as the duly elected Senators of the Philippines in
the May 14, 2001 elections. Based on the Certificates of
Canvass finally tabulated, the first twelve (12) Senators shall
serve for a term of six (6) years and the thirteenth (13 th)
Senator shall serve the unexpired term of three (3) years of
Senator Teofisto T. Guingona, Jr., who was appointed Vice-
President of the Philippines pursuant to Section 9, Article VII of
the Constitution, in relation to Section 9, Article VI thereof, as
implemented under Republic Act No. 6645. (emphasis supplied)
On June 21, 2001, petitioners filed with the Court their petition for
prohibition to stop respondent COMELEC from proclaiming any
senatorial candidate in the May 14, 2001 election as having been
elected for the lone senate seat for a three-year term. Copies of
the petition were served on respondent COMELEC twice, first on
June 20, 2001 by registered mail, and second on June 21, 2001,
by personal delivery of petitioner Mojica. On June 26, 2001 the
Court issued a Resolution requiring respondent COMELEC to
comment within ten days from notice. Even before filing its
comment, respondent COMELEC issued Resolution No. NBC-01-
006 on July 20, 2001, the dispositive portion of which reads, viz:

NOW, THEREFORE, by virtue of the powers vested in it under

the Constitution, Omnibus Election Code and other election laws,
the Commission on Elections sitting as the National Board of
Canvassers hereby DECLARES official and final the above
ranking of the proclaimed 13 Senators of the Philippines in
relation to NBC Resolution No. 01-005 promulgated June 5, 2001.
Resolution No. NBC-01-006 indicates the following ranking of the
13 Senators with the corresponding votes they garnered as of
June 20, 2001:

1. De Castro, - 16,237,386
Noli L.
2. Flavier, Juan - 11,735,897
M.
3. Osmeña, - 11,593,389
Sergio II R.
4. Drilon, - 11,301,700
Franklin M.
5. Arroyo, Joker - 11,262,402
P.
6. Magsaysay, - 11,250,677
Ramon Jr. B.
7. Villar, Manuel - 11,187,375
Jr. B.
8. Pangilinan, - 10,971,896
Francis N.
9. Angara, - 10,805,177
Edgardo J.
10. Lacson, - 10,535,559
Panfilo M.
11. Ejercito- - 10,524,130
Estrada, Luisa
P.
12. Recto, - 10,498,940
Ralph
13. Honasan, - 10,454,527
Gregorio
On the day of its promulgation, respondent COMELEC forwarded
Resolution No. NBC-01-006 to the President of the Senate. On
July 23, 2001, the thirteen senators, inclusive of respondents
Honasan and Recto, took their oaths of office before the Senate
President.

With the turn of events after the filing of the petition on June 20,
2001, the Court ordered petitioners on March 5, 2002 and
September 17, 2002 to amend their petition. In their amended
petition, petitioners assailed the manner by which the special
election was conducted citing as precedents the 1951 and 1955
special senatorial elections for a two-year term which were held
simultaneously with the regular general elections for senators with
six year terms, viz:

(a) A vacancy in the Senate was created by the election of

Senator Fernando Lopez as Vice-President in the 1949 elections.
A special election was held in November 1951 to elect his
successor to the vacated Senate position for a term to expire on
30 December 1953. Said special election was held
simultaneously with the regular election of 1951. A separate
space in the official ballot was provided for Senatorial
candidates for the two year term; moreover, the candidates
for the single Senate term for two years filed certificates of
candidacy separate and distinct from those certificates of
candidacy filed by the group of Senatorial candidates for
the six year term.

(...the votes for the twenty (20) candidates who filed

certificates of candidacy for the eight Senate seats with six
year terms were tallied and canvassed separately from the
votes for the five candidates who filed certificates of
candidacy for the single Senate seat with a two year term...)

xxx xxx xxx

(b) Again, a vacancy was created in the Senate by the election of

then Senator Carlos P. Garcia to the Vice Presidency in the 1953
presidential elections. A special election was held in November
1955 to elect his successor to the vacated Senatorial position for
a two year term expiring on 30 December 1957.

Said special election for one senator to fill the vacancy left by the
Honorable Carlos Garcia was held in November 1955
simultaneously with the regular election for eight Senate seats
with a six year term. Here, separate spaces were provided for
in the official ballot for the single Senate seat for the two year
term as differentiated from the eight Senate seats with six
year terms. The results as recorded by Senate official files
show that votes for the candidates for the Senate seat with a
two-year term were separately tallied from the votes for the
candidates for the eight Senate seats with six-year term...
[1]
(emphases supplied)
Petitioners thus pray that the Court declare the following:

(a) that no special election was conducted by respondent

COMELEC for the single Senate seat with a three year term in
the 14 May 2001 election.

(b) null and void respondent COMELEC’s Resolutions No.

NBC01-005 dated 5 June 2001 and NBC01-006 dated 20 July
2001 for having been promulgated without any legal authority
at all insofar as said resolutions proclaim the Senatorial
candidate who obtained the thirteenth highest number of votes
canvassed during the 14 May 2001 election as a duly elected
Senator.[2]
Respondents filed their respective comments averring the
following procedural flaws: (1) the Court has no jurisdiction over
the petition for quo warranto; (2) the petition is moot; and (3) the
petitioners have no standing to litigate. On the merits, they all
defend the validity of the special election on the ground that the
COMELEC had discretion to determine the manner by which the
special election should be conducted and that the electorate was
aware of the method the COMELEC had adopted. Moreover, they
dismiss the deviations from the election laws with respect to the
filing of certificates of candidacy for the special elections and the
failure to provide in the official ballot a space for the special
election vote separate from the twelve spaces for the regular
senatorial election votes as inconsequential. They claim that
these laws are merely directory after the election.

II. Issues

The issues for resolution are procedural and substantive. I shall

limit my humble opinion to the substantive issue of whether a
special election for the single Senate seat with a three-year term
was validly held simultaneous with the general elections on May
14, 2001.

III. Laws on the Calling of Special Elections

Section 9, Article VI of the 1987 Constitution provides for the

filling of a vacancy in the Senate and House of
Representatives, viz:

Sec. 9. In case of vacancy in the Senate or in the House of

Representatives, a special election may be called to fill such
vacancy in the manner prescribed by law, but the Senator or
Member of the House of Representatives thus elected shall serve
only for the unexpired term.
Congress passed R.A. No. 6645, “An Act Prescribing the Manner
of Filling a Vacancy in the Congress of the Philippines,” to
implement this constitutional provision. The law provides, viz:

SECTION 1. In case a vacancy arises in the Senate at least

eighteen (18) months or in the House of Representatives at least
one (1) year before the next regular election for Members of
Congress, the Commission on Elections, upon receipt of a
resolution of the Senate or the House of Representatives, as the
case may be, certifying to the existence of such vacancy and
calling for a special election, shall hold a special election to fill
such vacancy. If the Congress is in recess, an official
communication on the existence of the vacancy and call for a
special election by the President of the Senate or by the Speaker
of the House of Representatives, as the case may be, shall be
sufficient for such purpose. The Senator or Member of the House
of Representatives thus elected shall serve only for the unexpired
term.

SECTION 2. The Commission on Elections shall fix the date of

the special election, which shall not be earlier than forty-five (45)
days nor later than ninety (90) days from the date of such
resolution or communication, stating among other things, the
office or offices to be voted for: Provided, however, That if within
the said period a general election is scheduled to be held, the
special election shall be held simultaneously with such general
election.

SECTION 3. The Commission on Elections shall send copies

of the resolution, in number sufficient for due distribution
and publication, to the Provincial or City Treasurer of each
province or city concerned, who in turn shall publish it in
their respective localities by posting at least three copies
thereof in as many conspicuous places in each of their
election precincts, and a copy in each of the polling places
and public markets, and in the municipal
buildings. (emphasis supplied)
R.A. No. 6645 was amended in 1991 by R.A. No. 7166 which
provides in Section 4, viz:

SECTION 4. Postponement, Failure of Election and Special

Election. - The postponement, declaration of failure of election
and the calling of special elections as provided in Sections 5, 6,
and 7 of the Omnibus Election Code shall be decided by the
Commission sitting en banc by a majority vote of its members...

In case a permanent vacancy shall occur in the Senate or House

of Representatives at least one (1) year before the expiration of
the term, the Commission shall call and hold a special
election to fill the vacancy not earlier than sixty (60) days nor
longer than ninety (90) days after the occurrence of the vacancy.
However, in case of such vacancy in the Senate, the special
election shall be held simultaneously with the next
succeeding regular election. (emphases supplied)
IV. Democracy and Republicanism
The shortest distance between two points is a straight line. In this
case of first impression, however, the distance between existing
jurisprudence and the resolution of the issue presented to the
Court cannot be negotiated through a straight and direct line of
reasoning. Rather, it is necessary to journey through a
meandering path and unearth the root principles of democracy,
republicanism, elections, suffrage, and freedom of information
and discourse in an open society. As a first step in this
indispensable journey, we should traverse the democratic and
republican landscape to appreciate the importance of informed
judgment in elections.

A. Evolution of Democracy from Plato to Locke

to Jefferson and Contemporary United States of America

In the ancient days, democracy was dismissed by thoughtful

thinkers. Plato deprecated democracy as rule by the masses. He
warned that if all the people were allowed to rule, those of low
quality would dominate the state by mere numerical superiority.
He feared that the more numerous masses would govern with
meanness and bring about a “tyranny of the majority.” Plato
predicted that democracies would be short-lived as the mob
would inevitably surrender its power to a single tyrant, and put an
end to popular government. Less jaundiced than Plato
was Aristotle’s view towards democracy. Aristotle agreed that
under certain conditions, the will of the many could be equal to or
even wiser than the judgment of the few. When the many
governed for the good of all, Aristotle admitted that democracy is
a good form of government. But still and all, Aristotle preferred a
rule of the upper class as against the rule of the lower class. He
believed that the upper class could best govern for they represent
people of the greatest refinement and quality.
In the Middle Ages, Europe plunged when the Roman Empire
perished. Europe re-emerged from this catastrophe largely
through reliance on the scientific method which ultimately ushered
the Industrial Revolution. Material success became the engine
which drove the people to search for solutions to their social,
political and economic problems. Using the scythe of science and
reason, the thinkers of the time entertained an exaggerated notion
of individualism. They bannered the idea that all people were
equal; no one had a greater right to rule than another. Dynastical
monarchy was taboo. As all were essentially equal, no one
enjoyed the moral right to govern another without the
consent of the governed. The people therefore were the source
of legitimate legal and political authority. This theory of popular
sovereignty revived an interest in democracy in the seventeenth
century. The refinements of the grant of power by the people to
the government led to the social contract theory: that is, the
social contract is the act of people exercising their
sovereignty and creating a government to which they
consent.[3]

Among the great political philosophers who spurred the evolution

of democratic thought was John Locke (1632-1704). In 1688,
the English revolted against the “Catholic tyranny” of James II,
causing him to flee to France. This Glorious Revolution, called
such because it was almost bloodless, put to rest the long
struggle between King and Parliament in England. The revolution
reshaped the English government and ultimately brought about
democracy in England.

John Locke provided the philosophical phalanx to the Glorious

Revolution. For this purpose, he wrote his Second Treatise of
Government, his work with the most political impact. In his
monumental treatise, Locke asserted that the basis of political
society is a contract whereby individuals consent to be bound by
the laws of a common authority known as civil government. The
objective of this social contract is the protection of the individual’s
natural rights to life, liberty and property which are inviolable and
enjoyed by them in the state of nature before the formation of all
social and political arrangements.[4] Locke thus argues that
legitimate political power amounts to a form of trust, a contract
among members of society anchored on their own consent,
and seeks to preserve their lives, liberty and property. This trust
or social contract makes government legitimate and clearly
defines the functions of government as concerned, above all, with
the preservation of the rights of the governed.

Even then, Locke believed that the people should be

governed by a parliament elected by citizens who owned
property. Although he argued that the people were sovereign, he
submitted that they should not rule directly. Members of
parliament represent their constituents and should vote as their
constituents wanted. The government’s sole reason for being
was to serve the individual by protecting his rights and
liberties. Although Locke’s ideas were liberal, they fell short
of the ideals of democracy. He spoke of a “middle-class
revolution” at a time when the British government was controlled
by the aristocracy. While he claimed that all people were equally
possessed of natural rights, he advocated that political power be
devolved only to embrace the middle class by giving
Parliament, which was controlled through the House of
Commons, the right to limit the monarchical power. He denied
political power to the poor; they were bereft of the right to elect
members of Parliament.

Locke influenced Thomas Jefferson, the eminent statesman and

philosopher of the (American) revolution and of the first
constitutional order which free men were permitted to
establish.”[5] But although Jefferson espoused Locke’s version of
the social contract and natural law, he had respect for the
common people and participatory government. Jefferson
believed that the people, including the ordinary folk, were the
only competent guardians of their own liberties, and should thus
control their government. Discussing the role of the people in a
republic, Jefferson wrote to Madison from France in 1787 that
“they are the only sure reliance for the preservation of our
liberties.”[6]

The wave of liberalism from Europe notwithstanding, a much

more conservative, less democratic, and more paternalistic
system of government was originally adopted in the United
States. The nation’s founders created a government in which
power was much more centralized than it had been under the
Articles of Confederation and they severely restricted popular
control over the government.[7] Many of the delegates to the
Constitutional Convention of 1787 adhered to Alexander
Hamilton’s view that democracy was little more than legitimized
mob rule, a constant threat to personal security, liberty and
property. Thus, the framers sought to establish a constitutional
republic, in which public policy would be made by elected
representatives but individual rights were protected from the
tyranny of transient majorities. With its several elitist elements and
many limitations on majority rule, the framers’ Constitution had
undemocratic strands.

The next two centuries, however, saw the further

democratization of the federal Constitution.[8] The Bill of Rights
was added to the American Constitution and since its passage,
America had gone through a series of liberalizing eras that slowly
relaxed the restraints imposed on the people by the new political
order. The changing social and economic milieu mothered by
industrialization required political democratization.[9] In 1787,
property qualifications for voting existed and suffrage was granted
only to white males. At the onset of Jacksonion democracy in the
1830s, property requirements quickly diminished and virtually
became a thing of the past by the time of the Civil War. In 1870,
the Fifteenth Amendment theoretically extended the franchise to
African-Americans, although it took another century of struggle for
the Amendment to become a reality. In 1920, the Nineteenth
Amendment removed sex as a qualification for voting. The
Progressive Era also saw the Seventeenth Amendment of the
Constitution to provide for direct election of United States
senators[10] and established procedures for initiative, referendum
and recall (otherwise known as direct democracy) in many states.
[11]
Poll taxes were abolished as prerequisites for voting in federal
elections through the Twenty-Fourth Amendment in 1964. Finally,
the voting age was lowered to eighteen with the ratification of the
Twenty-Sixth Amendment in 1971.[12]

B. Constitutional History of Democracy

and Republicanism in the Philippines

The Malolos Constitution was promulgated on January 21, 1899

by the short-lived Revolutionary Government headed by Emilio
Aguinaldo after the Declaration of Independence from Spain on
June 12, 1898. Article 4 of the Constitution declared the
Philippines a Republic, viz:

Art. 4. The government of the Republic is popular,representative,

alternative, and responsible and is exercised by three distinct
powers, which are denominated legislative, executive and
judicial...
Shortly after the promulgation of the Malolos Constitution, the
Philippines fell under American rule. The Americans adopted the
policy of gradually increasing the autonomy of the Filipinos before
granting their independence.[13] In 1934, the U.S. Congress
passed the Tydings-McDuffie Law “xxx the last of the
constitutional landmarks studding the period of constitutional
development of the Filipino people under the American regime
before the final grant of Philippine independence.”[14] Under this
law, the American government authorized the Filipino people to
draft a constitution in 1934 with the requirement that the
“constitution formulated and drafted shall be republican in form.”
In conformity with this requirement,[15] Article II, Section 1 of
the 1935 Philippine Constitution was adopted, viz:

Sec. 1. The Philippines is a republican state. Sovereignty

resides in the people and all government authority emanates from
them.
The delegates to the Constitutional Convention understood this
form of government to be that defined by James Madison, viz:

We may define a republic to be a government which derives

all its power directly or indirectly from the great body of the
people; and is administered by persons holding offices during
pleasure, for a limited period, or during good behavior. It is
essential to such a government that it be derived from the great
body of the society, not from an inconsiderable proportion, or a
favored class of it. It is sufficient for such government that the
person administering it be appointed either directly or
indirectly, by the people; and that they hold their
appointments by either of the tenures just specified.
[16]
(emphases supplied)
The 1973 Constitution adopted verbatim Article II, Section 1 of
the 1935 Constitution. So did the 1987 Constitution. The
delegates to the 1986 Constitutional Commission well understood
the meaning of a republican government. They adopted the
explanation by Jose P. Laurel in his book, Bread and Freedom,
The Essentials of Popular Government, viz:

When we refer to popular government or republican government

or representative government, we refer to some system of popular
representation where the powers of government are entrusted
to those representatives chosen directly or indirectly by the
people in their sovereign capacity.[17] (emphasis supplied)
An outstanding feature of the 1987 Constitution is
the expansion of the democratic space giving the people
greater power to exercise their sovereignty. Thus, under the
1987 Constitution, the people can directly exercise their
sovereign authority through the following modes, namely: (1)
elections; (2) plebiscite; (3) initiative; (4) recall; and (5)
referendum. Through elections, the people choose the
representatives to whom they will entrust the exercise of powers
of government.[18] In a plebiscite, the people ratify any amendment
to or revision of the Constitution and may introduce amendments
to the constitution.[19] Indeed, the Constitution mandates Congress
to “provide for a system of initiative and referendum, and the
exceptions therefrom, whereby the people can directly propose
and enact laws or approve or reject any law or part thereof
passed by the Congress or local legislative body. . .” It also
directs Congress to “enact a local government code which shall
provide for effective mechanisms of recall, initiative, and
referendum.”[20] Pursuant to this mandate, Congress enacted the
Local Government Code of 1991 which defines local initiative as
the “legal process whereby the registered voters of a local
government unit may directly propose, enact, or amend any
ordinance through an election called for the purpose.” Recall is a
method of removing a local official from office before the
expiration of his term because of loss of confidence.[21] In a
referendum, the people can approve or reject a law or an issue of
national importance.[22] Section 126 of the Local Government
Code of 1991 defines a local referendum as “the legal process
whereby the registered voters of the local government units may
approve, amend or reject any ordinance enacted by
the sanggunian.”

These Constitutional provisions on recall, initiative, and

referendum institutionalized the people’s might made palpable in
the 1986 People Power Revolution.[23] To capture the spirit of
People Power and to make it a principle upon which Philippine
society may be founded, the Constitutional Commission
enunciated as a first principle in the Declaration of Principles
and State Policies under Section 1, Article II of the 1987
Constitution that the Philippines is not only a republican but also
a democratic state.

The following excerpts from the Records of the Constitutional

Commission show the intent of the Commissioners in
emphasizing “democratic” in Section 1, Article II, in light of the
provisions of the Constitution on initiative, recall, referendum and
people’s organizations:

MR. SUAREZ. . . . May I call attention to Section 1. I wonder who

among the members of the committee would like to clarify this
question regarding the use of the word “democratic” in addition to
the word “republican.” Can the honorable members of the
committee give us the reason or reasons for introducing this
additional expression? Would the committee not be satisfied with
the use of the word “republican”? What prompted it to include the
word “democratic”?

xxx xxx xxx

MR. NOLLEDO. Madam President, I think as a lawyer, the

Commissioner knows that one of the manifestations of
republicanism is the existence of the Bill of Rights and periodic
elections, which already indicates that we are a democratic state.
Therefore, the addition of “democratic” is what we call
“pardonable redundancy” the purpose being to emphasize that
our country is republican and democratic at the same time. . . In
the 1935 and 1973 Constitutions, “democratic” does not appear. I
hope the Commissioner has no objection to that word.
MR. SUAREZ. No, I would not die for that. If it is redundant in
character but it is for emphasis of the people’s rights, I would
have no objection. I am only trying to clarify the matter.
[24]
(emphasis supplied)
In other portions of the Records, Commissioner Nolledo explains
the significance of the word “democratic”, viz:

MR. NOLLEDO. I am putting the word “democratic” because of

the provisions that we are now adopting which are covering
consultations with the people. For example, we have provisions
on recall, initiative, the right of the people even to participate in
lawmaking and other instances that recognize the validity of
interference by the people through people’s organizations . . .[25]

xxx xxx xxx

MR. OPLE. The Committee added the word “democratic” to

“republican,” and, therefore, the first sentence states: “The
Philippines is a republican and democratic state.”

May I know from the committee the reason for adding the word
“democratic” to “republican”? The constitutional framers of the
1935 and 1973 Constitutions were content with “republican.” Was
this done merely lor the sake of emphasis?

MR. NOLLEDO. Madam President, that question has been asked

several times, but being the proponent of this amendment, I would
like the Commissioner to know that “democratic” was added
because of the need to emphasize people power and the many
provisions in the Constitution that we have approved related to
recall, people’s organizations, initiative and the like, which
recognize the participation of the people in policy-making in
certain circumstances.”
MR. OPLE. I thank the Commissioner. That is a very clear answer
and I think it does meet a need. . .

xxx xxx xxx

MR. NOLLEDO. According to Commissioner Rosario Braid,

“democracy” here is understood as participatory democracy.
[26]
(emphasis supplied)
The following exchange between Commissioners Sarmiento and
Azcuna is of the same import:

MR. SARMIENTO. When we speak of republican democratic

state, are we referring to representative democracy?

MR. AZCUNA. That is right.

MR. SARMIENTO. So, why do we not retain the old formulation

under the 1973 and 1935 Constitutions which used the words
“republican state” because “republican state” would refer to a
democratic state where people choose their representatives?

MR. AZCUNA. We wanted to emphasize the participation of

the people in government.

MR. SARMIENTO. But even in the concept “republican state,” we

are stressing the participation of the people. . . So the word
“republican” will suffice to cover popular representation.

MR. AZCUNA. Yes, the Commissioner is right. However, the

committee felt that in view of the introduction of the aspects of
direct democracy such as initiative, referendum or recall, it was
necessary to emphasize the democratic portion of republicanism,
of representative democracy as well. So, we want to add the word
“democratic” to emphasize that in this new Constitution there are
instances where the people would act directly, and not through
their representatives.[27] (emphasis supplied)
V. Elections and the Right to Vote

A. Theory

The electoral process is one of the linchpins of a democratic and

republican framework because it is through the act of voting that
government by consent is secured.[28] Through the ballot, people
express their will on the defining issues of the day and they are
able to choose their leaders[29] in accordance with the
fundamental principle of representative democracy that the
people should elect whom they please to govern them.[30] Voting
has an important instrumental value in preserving the viability of
constitutional democracy.[31] It has traditionally been taken as a
prime indicator of democratic participation.[32]

The right to vote or of suffrage is “an important political right

appertaining to citizenship. Each individual qualified to vote is a
particle of popular sovereignty.”[33] In People v. Corral,[34] we held
that “(t)he modern conception of suffrage is that voting is a
function of government. The right to vote is not a natural right but
it is a right created by law. Suffrage is a privilege granted by the
State to such persons as are most likely to exercise it for the
public good.” The existence of the right of suffrage is a
threshold for the preservation and enjoyment of all other
rights that it ought to be considered as one of the most sacred
parts of the constitution.[35] In Geronimo v. Ramos, et al.,[36] we
held that the right is among the most important and sacred of the
freedoms inherent in a democratic society and one which must be
most vigilantly guarded if a people desires to maintain through
self-government for themselves and their posterity a genuinely
functioning democracy in which the individual may, in accordance
with law, have a voice in the form of his government and in the
choice of the people who will run that government for him.[37] The
U.S. Supreme Court recognized in Yick Wo v. Hopkins[38] that
voting is a “fundamental political right, because [it
is] preservative of all rights.” In Wesberry v. Sanders,[39] the
U.S. Supreme Court held that “no right is more precious in a
free country than that of having a voice in the election of those
who make the laws, under which, as good citizens, we must
live. Other rights, even the most basic, are illusory if the right
to vote is undermined.” Voting makes government more
responsive to community and individual needs and desires.
Especially for those who feel disempowered and marginalized or
that government is not responsive to them, meaningful access to
the ballot box can be one of the few counterbalances in their
arsenal.[40]

Thus, elections are substantially regulated for them to be fair and

honest, for order rather than chaos to accompany the democratic
processes.[41] This Court has consistently ruled from as early as
the oft-cited 1914 case of Gardiner v. Romulo[42] that the
purpose of election laws is to safeguard the will of the people, the
purity of elections being one of the most important and
fundamental requisites of popular government. We have
consistently made it clear that we frown upon any interpretation of
the law or the rules that would hinder in any way not only the free
and intelligent casting of the votes in an election but also
the correct ascertainment of the results.[43] To preserve the
purity of elections, comprehensive and sometimes complex
election codes are enacted, each provision of which - whether it
governs the registration and qualifications of voters, the selection
and eligibility of candidates, or the voting process itself - inevitably
affects the individual’s right to vote.[44] As the right to vote in a free
and unimpaired manner is preservative of other basic civil and
political rights, Chief Justice Warren, speaking for the U.S.
Supreme Court in Reynolds v. Sims[45] cautioned that any
alleged infringement of the right of citizens to vote must be
carefully and meticulously scrutinized. It was to promote free,
orderly and honest elections and to preserve the sanctity of the
right to vote that the Commission on Elections was created.
[46]
The 1987 Constitution mandates the COMELEC to ensure
“free, orderly, honest, peaceful, and credible elections.”[47]

B. History of Suffrage in the Philippines

In primitive times, the choice of who will govern the people was
not based on democratic principles. Even then, birth or strength
was not the only basis for choosing the chief of the tribe. When an
old chief has failed his office or committed wrong or has aged and
can no longer function, the members of the tribe could replace
him and choose another leader.[48] Among the Muslims, a council
or ruma bechara chooses the sultan. An old sultan may appoint
his successor, but his decision is not absolute. Among the criteria
for choosing a sultan were age, blood, wealth, fidelity to Islamic
faith and exemplary character or personality.[49] In times of crises,
the community may choose its leader voluntarily, irrespective of
social status. By consensus of the community, a serf or slave may
be voted the chief on account of his ability.

As far back as the Spanish regime, the Filipinos did not have a
general right of suffrage.[50] It was only in the Malolos Constitution
of 1899 that the right of suffrage was recognized;[51] it was a by-
product of the Filipinos’ struggle against the Spanish colonial
government and an offshoot of Western liberal ideas on civil
government and individual rights.[52] The life of the Malolos
Constitution was, however, cut short by the onset of the American
regime in the Philippines. But the right of suffrage was reiterated
in the Philippine Bill of 1902.[53] The first general elections were
held in 1907[54] under the first Philippine Election Law, Aci No.
1582, which took effect on January 15, 1907. This law was elitist
and discriminatory against women. The right of suffrage was
carried into the Jones Law of 1916.[55] Whereas previously, the
right was granted only by the Philippine Legislature and thus
subject to its control, the 1935 Constitution elevated suffrage to a
constitutional right.[56] It also provided for a plebiscite on the issue
of whether the right of suffrage should be extended to women. On
April 30, 1937, the plebiscite was held and the people voted
affirmatively. In the 1973 Constitution,[57] suffrage was recognized
not only as a right, but was imposed as a duty to broaden the
electoral base and make democracy a reality through increased
popular participation in government. The voting age was lowered,
the literacy requirement abolished, and absentee voting was
legalized. [58] The 1987 Constitution likewise enshrines the right of
suffrage in Article V, but unlike the 1973 Constitution, it is now no
longer imposed as a duty.[59] The 1948 Universal Declaration of
Human Rights[60] and the 1976 Covenant on Civil and Political
Rights[61] also protect the right of suffrage.

VI. Voter Information:

Prerequisite to a Meaningful Vole in a Genuinely Free,

Orderly and Honest Elections in a Working Democracy

A. Democracy, information and discourse on public matters

1. U.S. jurisdiction

For the right of suffrage to have a value, the electorate must be

informed about public matters so that when they speak through
the ballot, the knowledgeable voice and not the ignorant noise of
the majority would prevail. Jefferson admonished Americans to
be informed rather than enslaved by ignorance, saying that “(i)f a
nation expects to be ignorant and free in a state of
civilization, it expects what never was and never will
be.”[62] Jefferson emphasized the importance of discourse in a
democracy, viz:

In every country where man is free to think and to speak,

differences of opinion arise from difference of perception, and the
imperfection of reason; but these differences when permitted, as
in this happy country, to purify themselves by discussion, are but
as passing clouds overspreading our land transiently and leaving
our horizon more bright and serene.[63]
Other noted political philosophers like John Stuart Mill conceived
of the “marketplace of ideas” as a necessary means of testing the
validity of ideas, viz:

(N)o one’s opinions deserve the name of knowledge, except so

far as he has either had forced upon him by others, or gone
through of himself, the same mental process which could have
been required of him in carrying on an active controversy with
opponents.[64]
In the same vein, political philosopher Alexander Meiklejohn, in
his article “Free Speech Is An Absolute,” stressed that, “(s)elf-
government can exist only insofar as the voters acquire the
intelligence, integrity, sensitivity, and generous devotion to the
general welfare that, in theory, casting a ballot is assumed to
express.”[65] To vote intelligently, citizens need information about
their government.[66] Even during the diaper days of U.S.
democracy, the Framers of the U.S. Constitution postulated that
self-governing people should be well-informed about the workings
of government to make intelligent political choices. In discussing
the First Amendment, James Madison said: “The right of freely
examining public characters and measures, and of free
communication thereon, is the only effectual guardian of every
other right....”[67] Thus, the United States, a representative
democracy, has generally subscribed to the notion that public
information and participation are requirements for a
representative democracy where the electorate make informed
choices. The First Amendment to the U.S. Constitution, which
establishes freedom of the press and speech supports this
proposition. The First Amendment’s jealous protection of free
expression is largely based on the ideas that free and open
debate will generate truth and that only an informed
electorate can create an effective democracy.[68]

The First Amendment reflects the Framers’ belief that public

participation in government is inherently positive. An informed
citizenry is a prerequisite to meaningful participation in
government. Thus, the U.S. Congress embraced this principle
more concretely with the passage of the Freedom of Information
Act of 1966 (FO1A).[69] The law enhanced public access to and
understanding of the operation of federal agencies with respect to
both the information held by them and the formulation of public
policy.[70] In the leading case on the FOIA, Environmental
Protection Agency v. Mink,[71] Justice Douglas, in his dissent,
emphasized that the philosophy of the statute is the citizens’ right
to be informed about “what their government is up
to.”[72] In Department of Air Force v. Rose,[73] the U.S. Supreme
Court acknowledged that the basic purpose of the FOIA is “to
open agency action to the light of public scrutiny. These rulings
were reiterated in the 1994 case of Department of Defense, et
al. v. Federal Labor Relations Authority, et al.[74] Be that as it
may, the U.S. Supreme Court characterized this freedom of
information as a statutory and not a constitutional right
in Houchins v. KQED, Inc., et al.,[75] viz: “there is no
constitutional right to have access to particular government
information, or to require openness from the bureaucracy. . . The
Constitution itself is neither a Freedom of Information Act nor an
Official Secrets Act.”[76] Neither the courts nor Congress has
recognized an affirmative constitutional obligation to disclose
information concerning governmental affairs; the U.S. Constitution
itself contains no language from which the duty could be readily
inferred.[77] Nevertheless, the U.S. federal government, the fifty
states and the District of Columbia have shown their commitment
to public access to government-held information. All have statutes
that allow varying degrees of access to government records.[78]

While the right of access to government information or the “right

to know” is characterized as a statutory right, the right to receive
information[79] was first identified by the U.S. Supreme Court as a
constitutional right in the 1936 case of Grosjean v. American
Press Company. [80] The Court also stated that the First
Amendment protects the natural right of members of an organized
society, united for their common good, to impart and acquire
information about their common interests. Citing Judge Cooley,
the Court held that free and general discussion of public
matters is essential to prepare the people for an intelligent
exercise of their rights as citizens.[81] The Court also noted that
an informed public opinion is the most potent of all restraints upon
misgovernment. Many consider Virginia State Board of
Pharmacy v. Virginia Citizens Consumer Council[82] the
seminal “right to receive” case.[83] In this 1976 decision, the Court
struck down a Virginia statute forbidding pharmacists from
advertising the prices of prescription drugs. Writing for the
majority, Justice Blackmun held that the free flow of information
about commercial matters was necessary to ensure informed
public decision-making. He reasoned that the protection of the
First Amendment extends not only to the speaker, but to the
recipient of the communication. Although the case dealt with
commercial speech, the majority opinion made it clear that the
constitutional protection for receipt of information would
apply with even more force when more directly related to
self-government and public policy.[84]

In 1982, the U.S. Supreme Court highlighted the connection

between self-government and the right to receive information
in Board of Education v. Pico.[85] This case involved a school
board-ordered removal of books from secondary school libraries
after the board classified the book as “anti-American, anti-
Christian, anti-Semitic, and just plain filthy”.[86] Justice Brennan,
writing for a three-justice plurality, emphasized the First
Amendment’s role in assuring widespread dissemination of ideas
and information. Citing Griswold v. Connecticut,[87] the Court
held that “(t)he State may not, consistently with the spirit of the
First Amendment, contract the spectrum of available knowledge.”
The Court noted that “the right to receive ideas is a necessary
predicate to the recipient’s meaningful exercise of his own
rights of speech, press, and political freedom.” It then
cited Madison’s admonition that, “(a) popular Government,
without popular information, or the means of acquiring it, is
but a Prologue to a Farce or a Tragedy; or, perhaps both.
Knowledge will forever govern ignorance: And a people who
mean to be their own Governors, must arm themselves with
the power which knowledge gives.”[88]

The U.S. Supreme Court has reiterated, in various contexts, the

idea that “the Constitution protects the right to receive information
and ideas.”[89] Kleindienst v. Mandel[90] acknowledged a First
Amendment right to receive information but deferring to Congress’
plenary power to exclude aliens. Lamont v. Postmaster
General[91] invalidated a statutory requirement that foreign
mailings of “communist political propaganda” be delivered only
upon request by the addressee. Martin v. City of
Struthers[92] invalidated a municipal ordinance forbidding door-to-
door distribution of handbills as violative if the First Amendment
rights of both the recipients and the distributors.[93]

Whether the “right to know” is based on a statutory right provided

by the FOIA or a constitutional right covered by the First
Amendment, the underlying premise is that an informed people
is necessary for a sensible exercise of the freedom of
speech, which in turn, is necessary to a meaningful exercise
of the right to vote in a working democracy. In 1927, Justice
Louis Brandeis gave the principle behind the First Amendment its
classic formulation, viz:

Those who won our independence believed that the final end of
the state was to make men free to develop their faculties, and
that in its government the deliberative forces should prevail
over the arbitrary. They valued liberty both as an end and as a
means. They believed liberty to be the secret of happiness and
courage to be the secret of liberty. They believed that freedom
to think as you will and to speak as you think are means
indispensable to the discovery and spread of political truth;
that without free speech and assembly discussion would be futile;
that with them, discussion affords ordinarily adequate protection
against the dissemination of noxious doctrine; that the greatest
menace to freedom is an inert people; that public discussion is
a political duty; and that this should be a fundamental
principle of the American government. They recognized the
risks to which all human institutions are subject. But they knew
that order cannot be secured merely through fear of punishment
for its infraction; that it is hazardous to discourage thought, hope
and imagination; that fear breeds repression; that repression
breeds hate; that hate menaces stable government; that the path
of safety lies in the opportunity to discuss freely supposed
grievances and proposed remedies; and that the fitting
remedy for evil counsels is good ones. Believing in the
power of reason as applied through public discussion, they
eschewed silence coerced by law-the argument of force in its
worst form. Recognizing the occasional tyrannies of governing
majorities, they amended the Constitution so that free speech and
assembly should be guaranteed.[94]
The U.S. Supreme Court also held in Stromberg v.
California[95] that the First Amendment provides “the opportunity
for free political discussion to the end that government may be
responsive to the will of the people and that changes may be
obtained by lawful means...”[96] The Amendment is “the repository
of...self-governing powers”[97] as it provides a peaceful means for
political and social change through public discussion. In Mills v.
State of Alabama,[98] it ruled that there may be differences about
interpretations of the First Amendment, but there is practically
universal agreement that a major purpose of the Amendment was
to protect the free discussion of governmental affairs. This
of course includes discussions of candidates, structures and
forms of government, the manner in which government is
operated or should be operated, all such matters relating to
political processes.[99] Justice William J. Brennan summarized
the principle succinctly in his opinion for the Court in Garrison v.
Louisiana, viz: “...speech concerning public affairs is more than
self-expression; it is the essence of self-government. (emphasis
supplied)”[100]

2. Philippine jurisdiction
The electorate’s right to information on public matters
occupies a higher legal tier in the Philippines compared to
the United States. While the right to information in U.S.
jurisdiction is merely a statutory right, it enjoys constitutional
status in Philippine jurisdiction. The 1987 Constitution not only
enlarged the democratic space with provisions on the electorate’s
direct exercise of sovereignty, but also highlighted the right of
the people to information on matters of public interest as a
predicate to good governance and a working democracy. The
Bill of Rights sanctifies the right of the people to information under
Section 7, Article III of the 1987 Constitution, viz:

Sec. 7. The right of the people to information on matters of

public concern shall be recognized. Access to official records, and
to documents, and papers pertaining to official acts, transactions,
or decisions, as well as to government research data used as
basis for policy development, shall be afforded the citizen, subject
to such limitations as may be provided by law. (emphasis
supplied)
This provision on the right to information sans the phrase “as well
as to government research data” made its maiden appearance in
the Bill of Rights of the 1973 Constitution. The original draft of the
provision presented to the 1971 Constitutional Convention merely
said that access to official records and the right to information
“shall be afforded the citizens as may be provided by law.”
Delegate De la Serna pointed out, however, that the provision did
not grant a self-executory right to citizens. He thus proposed the
rewording of the provision to grant the right but subject to
statutory limitations.[101] The 1973 Constitution thus provided in
Section 6, Article IV, viz:

Sec. 6. The right of the people to information on matters of public

concern shall be recognized. Access to official records, and to
documents and papers pertaining to official acts, transactions, or
decisions, shall be afforded the citizen subject to such limitations
as may be provided by law.
The change in phraseology was important as in the pre-1973
case of Subido v. Ozaeta,[102] this Court held that freedom of
information or freedom to obtain information for publication is not
guaranteed by the constitution. In that case, the issue before the
Court was whether the press and the public had a constitutional
right to demand the examination of the public land records. The
Court ruled in the negative but held that the press had a statutory
right to examine the records of the Register of Deeds because the
interest of the press was real and adequate.

As worded in the 1973 and 1987 Constitution, the right to

information is self-executory. It is a public right where the real
parties in interest are the people. Thus, every citizen has
“standing” to challenge any violation of the right and may seek its
enforcement.[103] The right to information, free speech and press
and of assembly and petition and association which are all
enshrined in the Bill of Rights are cognate rights for they all
commonly rest on the premise that ultimately it is an informed
and critical public opinion which alone can protect and
uphold the values of democratic government.[104]

In “splendid symmetry”[105] with the right to information in the Bill of

Rights are other provisions of the 1987 Constitution highlighting
the principle of transparency in government. Included among
the State Policies under Article II of the 1987 Constitution is the
following provision, viz:

Sec. 28. Subject to reasonable conditions prescribed by law, the

State adopts and implements a policy of full public disclosure
of all its transactions involving public interest. (emphasis
supplied)
Related to the above provision is Section 21 of Article XI, National
Economy and Patrimony, which provides, viz:

Sec. 21. Foreign loans may be incurred in accordance with law

and the regulation of the monetary authority. Information on
foreign laws obtained or guaranteed by the Government shall
be made available to the public. (emphasis supplied)
The indispensability of access to information involving public
interest and government transparency in Philippine democracy is
clearly recognized in the deliberations of the 1987 Constitutional
Commission, viz:

MR. OPLE. Mr. Presiding Officer, this amendment is proposed

jointly by Commissioners Ople, Rama, Trenas, Romulo, Regalado
and Rosario Braid. It reads as follows: “SECTION 24. THE
STATE SHALL ADOPT AND IMPLEMENT A POLICY OF FULL
PUBLIC DISCLOSURE OF ALL ITS TRANSACTIONS SUBJECT
TO REASONABLE SAFEGUARDS ON NATIONAL INTEREST
AS MAY BE PROVIDED BY LAW.”
xxx xxx xxx
In the United States, President Aquino has made much of the
point that the government should be open and accessible to the
public. This amendment is by way of providing an umbrella
statement in the Declaration of Principles for all these safeguards
for an open and honest government distributed all over the draft
Constitution. It establishes a concrete, ethical principle for
the conduct of public affairs in a genuinely open democracy,
with the people’s right to know as the centerpiece.
[106]
(emphasis supplied)
Commissioners Bernas and Rama made the following
observations on the principle of government transparency and the
public’s right to information:

FR. BERNAS. Just one observation, Mr. Presiding Officer. I want

to comment that Section 6 (referring to Section 7, Article III on the
right to information) talks about the right of the people to
information, and corresponding to every right is a duty. In this
particular case, corresponding to this right of the people is
precisely the duty of the State to make available whatever
information there may be needed that is of public concern.
Section 6 is very broadly stated so that it covers anything that is
of public concern. It would seem also that the advantage of
Section 6 is that it challenges citizens to be active in seeking
information rather than being dependent on whatever the State
may release to them.

xxx xxx xxx

MR. RAMA. There is a difference between the provisions under

the Declaration of Principles and the provision under the Bill of
Rights. The basic difference is that the Bill of Rights contemplates
coalition (sic) (collision?) between the rights of the citizens and
the State. Therefore, it is the right of the citizen to demand
information. While under the Declaration of Principles, the State
must have a policy, even without being demanded, by the
citizens, without being sued by the citizen, to disclose
information and transactions. So there is a basic difference
here because of the very nature of the Bill of Rights and the
nature of the Declaration of Principles.[107] (emphases supplied)
The importance of information in a democratic framework is also
recognized in Section 24, Article II, viz:

Sec. 24. The State recognizes the vital role of communication

and information in nation-building. (emphasis supplied).
Section 10 of Article XVI, General Provisions is a related
provision. It states, viz:

Sec. 10. The State shall provide the policy environment for the full
development of Filipino capability and the emergence of
communication structures suitable to the needs and
aspirations of the nation and the balanced flow of
information into, out of, and across the country, in
accordance with a policy that respects the freedom of speech and
of the press. (emphasis supplied)
The sponsorship speech of Commissioner Braid expounds on the
rationale of these provisions on information and
communication, viz:

MS. ROSARIO BRAID. We cannot talk of the functions of

communication unless we have a philosophy of communication,
unless we have a vision of society. Here we have a preferred
vision where opportunities are provided for participation by as
many people, where there is unity even in cultural diversity, for
there is freedom to have options in a pluralistic
society. Communication and information provide the leverage
for power. They enable the people to act, to make decisions,
to share consciousness in the mobilization of the nation.
[108]
(emphasis supplied)
In Valmonte v. Belmonte,[109] the Court had occasion to rule on
the right to information of a lawyer, members of the media and
plain citizens who sought from the Government Service Insurance
System a “list of the names of the Batasang Pambansa members
belonging to the UNIDO and PDP-Laban who were able to secure
clean loans immediately before the February 7 election thru the
intercession/marginal note of the then First Lady Imelda
Marcos.”[110] In upholding the petitioners’ right, the Court explained
the rationale of the right to information in a democracy, viz:

This is not the first time that the Court is confronted wth a
controversy directly involving the constitutional right to
information. In Tañada v. Tuvera, G.R. No. 63915, April 2 ,
1985, 136 SCRA 27 (involving the need for adequate notice to
the public of the various laws which are to regulate the
actions and conduct of citizens) and in the recent case of
Legaspi v. Civil Service Commission, G.R. No. 72119, May 29,
1987, 150 SCRA 530 (involving the concern of citizens to
ensure that government positions requiring civil service
eligibility are occupied only by persons who are eligibles),
the Court upheld the people’s constitutional right to be
informed of matters of public interest and ordered the
government agencies concerned to act as prayed for by the
petitioners.

xxx xxx xxx

An informed citizenry with access to the diverse currents in

political, moral and artistic thought and data relative to them,
and the free exchange of ideas and discussion of issues
thereon is vital to the democratic government envisioned
under our Constitution. The cornerstone of this republican
system of government is delegation of power by the people to the
State. In this system, governmental agencies and institutions
operate within the limits of the authority conferred by the people.
Denied access to information on the inner workings of
government, the citizenry can become prey to the whims and
caprices of those to whom the power had been delegated...

xxx xxx xxx

...The right of access to information ensures that these freedoms

are not rendered nugatory by the government’s monopolizing
pertinent information. For an essential element of these freedoms
is to keep open in continuing dialogue or process of
communication between the government, and the people. It is in
the interest of the State that the channels for free political
discussion be maintained to the end that the government may
perceive and be responsive to the people’s will. Yet, this open
dialogue can be effective only to the extent that the citizenry
is informed and thus able to formulate its will intelligently.
Only when the participants in a discussion are aware of the
issues and have access to information relating thereto can
such bear fruit.

The right to information is an essential premise of a meaningful

right to speech and expression. But this is not to say that the right
to information is merely an adjunct of and therefore restricted in
application by the exercise of the freedoms of speech and of the
press. Far from it. The right to information goes hand-in-hand
with the constitutional policies of full public disclosure (footnote
omitted) and honesty in the public service (footnote omitted). It is
meant to enhance the widening role of the citizenry in
governmental decision-making as well as in checking abuse
in government.[111] (emphases supplied)
The Court made a similar ruling in Gonzales v. Narvasa[112] which
involved the petitioner’s request addressed to respondent
Executive Secretary Ronaldo B. Zamora for the “names of the
executive officials holding multiple positions in government,
copies of their appointments, and a list of the recipients of luxury
vehicles seized by the Bureau of Customs and turned over to
Malacañang.”[113] The respondent was ordered to furnish the
petitioner the information requested. The Court held, viz:

Under both the 1973 (footnote omitted) and 1987 Constitution,

this (the right to information) is a self-executory provision which
can be invoked by any citizen before the courts...

Elaborating on the significance of the right to information, the

Court said in Baldoza v. Dimaano (71 SCRA 14 [1976]...) that
“[t]he incorporation of this right in the Constitution is
a recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic
perception by the public of the nation’s problems, nor a
meaningful democratic decision-making if they are denied
access to information of general interest. Information is
needed to enable the members of society to cope with the
exigencies of the times.”[114] (emphases supplied)
The importance of an informed citizenry in a working democracy
was again emphasized in Chavez v. Public Estates Authority
and Amari Coastal Bay Development Corporation[115] where
we held, viz:

The State policy of full transparency in all transactions involving

public interest reinforces the people’s right to information on
matters of public concern.

xxx xxx xxx

These twin provisions (on right to information under Section 7,
Article III and the policy of full public disclosure under Section 28,
Article II) of the Constitution seek to promote transparency in
policy-making and in the operations of the government, as well as
provide the people sufficient information to exercise effectively
other constitutional rights. These twin provisions are essential to
the exercise of freedom of expression. If the government does
not disclose its official acts, transactions and decisions to
citizens, whatever citizens may say, even if expressed
without any restraint, will be speculative and amount to
nothing. These twin provisions are also essential to hold public
officials “at all times x x x accountable to the people,” (footnote
omitted) for unless citizens have the proper information, they
cannot hold public officials accountable for anything. Armed with
the right information, citizens can participate in public
discussions leading to the formulation of government
policies and their effective implementation. An informed
citizenry is essential to the existence and proper functioning
of any democracy.[116] (emphases supplied)
B. Elections and the voters’ right to information on the
elections

1. U.S. Jurisdiction

An informed citizenry’s opinions and preferences have the most

impact and are most clearly expressed in elections which lie at
the foundation of a representative democracy. The electorate’s
true will, however, can only be intelligently expressed if they are
well informed about the time, place, manner of conduct of the
elections and the candidates therein. Without this information,
democracy will be a mere shibboleth for voters will not be able to
express their true will through the ballot.

In Duquette v. Merrill,[117] which the ponencia cites by reference

to 26 American Jurisprudence 2d §292,[118] a vacancy in the office
of Country Treasurer in York County occurred on July 24, 1944
upon the death of the incumbent Maynard A. Hobbs. The
vacancy was filled in accordance with the law providing that the
governor may appoint a resident of the county who shall be
treasurer until the 1st day of January following the next biennial
election, at which said election a treasurer shall be chosen for the
remainder of the term, if any. The next biennial election was held
on September 11, 1944. In the June 1944 primary election (prior
to the death of Hobbs) where nominations of candidates for the
upcoming biennial elections were made, there was no nomination
for the office of County Treasurer as Hobbes’ term was yet to
expire on January 1947. Neither was a special primary election
ordered by proclamation of the Governor after Hobbes’ death. Nor
were other legal modes of nominating candidates such as through
nomination of a political party, convention of delegates or
appropriate caucus resorted to. Consequently, in the official
ballot of the September 11, 1944 election, there was no provision
made for the selection of a County Treasurer to fill the vacancy for
the unexpired term. The name of the office did not appear on the
ballot. Petitioner Duquette, however, claims that he was elected
County Treasurer in the special election because in the City of
Biddeford, the largest city in York County, 1,309 voters either
wrote in the title of the office and his name thereunder, or used a
“sticker” of the same import and voted for him. At the September
11, 1944 biennial election, there were approximately 22,000
ballots cast, but none included the name of the petitioner except
for the 1,309 in Biddeford. In holding that the special election was
void, the Maine Supreme Judicial Court made the following
pronouncements, the first paragraph of which was cited by the
ponencia in the case at bar, viz:

Although there is not unanimity of judicial opinion as to the

requirement of official notice, if the vacancy is to be filled at the
time of a general election, yet it appears to be almost
universally held that if the great body of the electors are
misled by the want of such notice and are instead led to
believe that no such election is in fact to be held, an
attempted choice by a small percentage of the voters is void.
Wilson v. Brown, 109 Ky 229, 139 Ky 397, 58 SW 595; Wooton v.
Wheeler, 149 Ky 62, 147 SW 914; Secord v. Foutch, 44 Mich 89,
6 NW 110; Bolton v. Good, 41 NJL 296 (other citations omitted).
Notice to the electors that a vacancy exists and that an
election is to be held to fill it for the unexpired term, is
essential to give validity to the meeting of an electoral body
to discharge that particular duty, and is also an essential and
characteristic element of a popular election. Public policy
requires that it should be given in such form as to reach the body
of the electorate. Here there had been no nominations to fill
the vacancy, either by the holding of a special primary
election, or by nomination by county political conventions or
party committees. The designation of the office to be filled
was not upon the official ballot. As before noted, except for the
vacancy, it would have no place there, as the term of office of the
incumbent, if living, would not expire until January 1, 1947.
[119]
(emphases supplied)
As early as the 1897 case of People ex rel. Dix v. Kerwin,
[120]
the requirement of notice in an election has been
recognized, viz:

... We are not prepared to hold that this statute (requiring the
giving of notice) is, under all circumstances and at all times, so far
mandatory that a failure to observe its requirements will defeat an
election otherwise regularly holden. There are many cases which
hold that elections regularly held and persons regularly voted for
on nominations made where there has been failure to observe
some specific statutory requirement will not thereby be
necessarily defeated and the direction may, because of the
excusing circumstances, be held directory rather than mandatory.
We do not believe the circumstances of the present case, as they
are now exhibited, bring it all within this rule. The theory of
elections is that there shall be due notice given to the voters,
and that they must be advised either by a direct notice
published by the clerk, as provided by statute, or by
proceedings taken by the voters and the people generally in
such a way as that it may be fairly inferred that it was
generally and thoroughly well understood that a particular
office was to be filled at the election, so that the voters
should act understandingly and intelligently in casting their
ballots.

xxx xxx xxx

Since there was no notice published according to the statute, we

may not assume that the nomination was regularly made, or that
the voters were duly notified that the office was to be filled at that
general election, nine days afterwards. It has been generally held
that some notice, regular in its form, and pursuant to the
requirements of law, must be given as a safeguard to popular
elections, that the people may be informed for what officers
they are to vote. Of course, it might easily be true, as has
already been suggested, that, if nominations had been made
for an office, certificates regularly filed, and tickets regularly
printed, even though the clerk had failed to publish his
notice, there would be no presumption that the body of the
voters were uninformed as to their rights and as to the
positions which were to be filled. People v. Porter, 6 Cal. 26;
Secord v. Foutch, 44 Mich 89, 6 N.W. 110; Adsit v. Osmun, 84
Mich. 420, 48 N.W. 31; Allen v. Glynn, 17 Colo. 338, 29 Pac. 670;
Stephens v. People, 89 111. 337.[121] (emphases supplied)
Similarly, in Griffith v. Mercer County Court, et al.,[122] it was
held, viz:

There is a clear distinction between the case of a vacancy which

is to be filled at a special election to be held at a time and place to
be appointed by some officer or tribunal, authorized by statute to
call it, and a case where the statute itself provides for filling a
vacancy at the next general election after it occurs. In such
case nearly all the authorities hold that if the body of electors
do in fact know the vacancy exists, and candidates are
regularly nominated by the various political parties to fill it,
and the candidates receive most of the votes cast, such
election is valid, even though no notice thereof was
published in a manner provided by the statute. It would be
hypertechnical and unreasonable to hold that a failure to comply
literally with the statute in such case would avoid the election.
[123]
(emphasis supplied)
In Duquette, Kerwin and Griffith, as in a great majority of cases
on the state level, the mere fact that the election to fill a vacancy
occasioned by death, resignation, removal, or the like is held at
the time of a general election in accordance with a constitutional
or statutory provision, is not regarded as sufficient in itself to
validate the election if no notice of the election was given; it
has been held that in such a case, it must be shown that a
sufficient part of the electors have actual notice that the
vacancy is to be filled. The fact that a great percentage of
voters cast their votes despite the failure of giving proper
notice of the elections appears to be the most decisive single
factor to hold that sufficient actual notice was given.
[124]
These doctrines were reiterated in Lisle, et al. v. C.L.
Schooler[125] where it was held that mere allegation that “many”
voters were informed that a special election to fill a vacancy was
being held was unsatisfactory proof of sufficient notice.

2. Philippine jurisdiction

In our jurisdiction, it is also the rule that the exercise of the right of
suffrage should be an enlightened one, hence, based on relevant
facts, data and information. It is for this reason that the choice of
representatives in a democracy cannot be based on lottery or any
form of chance. The choice must be based on enlightened
judgment for democracy cannot endure the rule and reign of
ignorance. This principle was stressed by the Court in Tolentino
v. Commission on Elections.[126] The issue before the Court was
whether the Constitutional Convention of 1971 had the power to
call for a plebiscite for the ratification by the people of a partial
constitutional amendment. The amendment was the proposal to
lower the voting age to 18 but with the caveat that “(t)his partial
amendment, which refers only to age qualification for the exercise
of suffrage shall be without prejudice to other amendments that
will be proposed in the future by the 1971 Constitutional
Convention on other portions of the amended Section or on other
portions of the entire Constitution.” The Court ruled in the
negative, emphasizing the necessity for the voter to be
afforded sufficient time and information to appraise the
amendment, viz:

. . .No one knows what changes in the fundamental principles of

the constitution the Convention will be minded to approve. To be
more specific, we do not have any means of foreseeing whether
the right to vote would be of any significant value at all. Who can
say whether or not later on the Convention may decide to provide
for varying types of voters for each level of the political units it
may divide the country into. The root of the difficulty in other
words, lies in that the Convention is precisely on the verge of
introducing substantial changes, if not radical ones, in almost
every part and aspect of the existing social and political order
enshrined in the present Constitution. How can a voter in the
proposed plebiscite intelligently determine the effect of the
reduction of the voting age upon the different institutions
which the Convention may establish and of which presently
he is not given any idea?

We are certain no one can deny that in order that a plebiscite

for the ratification of an amendment to the Constitution may
be validly held, it must provide the voter not only sufficient
time but ample basis for an intelligent appraisal of the nature
of the amendment per se as well as its relation to the other
parts of the Constitution with which it has to form a
harmonious whole. In the present state of things, where the
Convention has hardly started considering the merits of hundreds,
if not thousands, of proposals to amend the existing Constitution,
to present to the people any single proposal or a few of them
cannot comply with this requirement.[127] (emphasis supplied)
The need for the voter to be informed about matters which
have a bearing on his vote was again emphasized by the Court
in UNIDO v. Commission on Elections.[128] This case involved
the amendments to the 1973 Constitution proposed by the
Batasang Pambansa in 1981. The Court reiterated that the more
people are adequately informed about the proposed
amendments, their exact meaning, implications and nuances,
the better. We held, viz:

To begin with, we cannot agree with the restrictive literal

interpretation the Solicitor General would want to give to the “free,
orderly and honest elections” clause of Section 5, Article X1I-C
above-quoted. Government Counsel posits that the said clause
refers exclusively to the manner in which the elections are
conducted, that is to say, with the manner in which the voters are
supposed to be allowed to vote. Perhaps, such a theory may hold
insofar as ordinary elections of officials are concerned. But the
Court views the provision as applicable also to plebiscites,
particularly one relative to constitutional amendments. Be it
borne in mind that it has been one of the most steadfast
rulings of this Court in connection with such plebiscites that
it is indispensable that they be properly characterized to be
fair submission - by which is meant that the voters must of
necessity have had adequate opportunity, in the light of
conventional wisdom, to cast their votes with sufficient
understanding of what they are voting on. We are of the firm
conviction that the charter’s reference to honest elections
connotes fair submission in a plebiscite. (emphasis supplied)
Similarly, the Court ruled in Sanidad v. COMELEC[129] that
plebiscite issues are matters of public concern and importance.
The people’s right to be informed and to be able to freely and
intelligently make a decision would be better served by access to
an unabridged discussion of the issues, including the forum.

It cannot be overemphasized that an informed electorate is

necessary for a truly free, fair and intelligent election. The
voting age was lowered from 21 years to 18 years because the
youth of 18 to 21 years did not differ in political maturity,
[130]
implying that political maturity or the capacity to discern
political information is necessary for the exercise of suffrage. It is
for this obvious reason that minors and the insane are not allowed
to vote. Likewise, the literacy test for the right to vote was
abolished because as explained by the Committee on Suffrage
and Electoral Reforms of the 1971 Constitutional Convention, “the
requirement to read and write was written into our constitution at a
time when the only medium of information was the printed word
and even the public meetings were not as large and successful
because of the absence of amplifying equipment. It is a fact that
today the vast majority of the population learn about national
matters much more from the audio-visual media, namely, radio
and television, and public meetings have become much more
effective since the advent of amplifying equipment.” Again, the
necessity of information relevant to an election is highlighted.
Similarly, in the 1986 Constitutional Commission, Commissioner
Bernas, in justifying enfranchisement of the illiterates, spoke of
their access to information relevant to elections, viz:

If we look at...the communication situation in the Philippines now,

the means of communication that has the farthest reach is AM
radio. People get their information not from reading newspapers
but from AM radio - farmers while plowing, and vendors while
selling things listen to the radio. Without knowing how to read and
write, they are adequately informed about many things happening
in the country.[131]
Several election cases, albeit not involving an issue similar to the
case at bar, affirm the necessity of an informed electorate in
holding free, intelligent and clean elections. In Blo Umpar
Adiong v. Commission on Elections[132] where this Court
nullified a portion of a COMELEC Resolution prohibiting the
posting of candidates’ decals and stickers on “mobile” places and
limiting their location to authorized posting areas, we held, viz:

We have adopted the principle that debate on public issues

should be uninhibited, robust, and wide open and that it may well
include vehement, caustic and sometimes unpleasantly sharp
attacks on government and public officials. (New York Times Co.
v. Sullivan, 376 U.S. 254, 11 L.Ed. 686 [1964]...) Too many
restrictions will deny to people the robust, uninhibited, and
wide open debate, the generating of interest essential if our
elections will truly be free, clean and honest.

We have also ruled that the preferred freedom of expression calls

all the more for the utmost respect when what may be curtailed is
the dissemination of information to make more meaningful
the equally vital right of suffrage. (Mutuc v. Commission on
Elections, 36 SCRA 228 [1970]).

xxx xxx xxx

When faced with border line situations where freedom to speak by

a candidate or party and freedom to know on the part of the
electorate are invoked against actions intended for maintaining
clean and free elections, the police, local officials and COMELEC
should lean in favor of freedom. For in the ultimate analysis, the
freedom of the citizen and the State’s power to regulate are not
antagonistic. There can be no free and honest elections if in
the efforts to maintain them, the freedom to speak and the
right to know are unduly curtailed.
xxx xxx xxx
...we have to consider the fact that in the posting of decals and
stickers on cars and other moving vehicles, the candidate needs
the consent of the owner of the vehicle. In such a case, the
prohibition would not only deprive the owner who consents to
such posting of the decals and stickers the use of his property but
more important, in the process, it would deprive the citizen of his
right to free speech and information:
Freedom to distribute information to every citizen wherever
he desires to receive it is so clearly vital to the preservation
of a free society that, putting aside reasonable police and health
regulations of time and manner of distribution, it must be fully
preserved. (Martin v. City of Struthers, Ohio, 319 U.S. 141; 87 L.
ed. 1313 [1943]).[133]
To facilitate the people’s right to information on election matters,
this Court, in Telecommunications and Broadcast Attorneys of
the Philippines, Inc., et al. v. COMELEC[134] upheld the validity
of COMELEC’s procurement of print space and airtime for
allocation to candidates, viz:

With the prohibition on media advertising by candidates

themselves, the COMELEC Time and COMELEC Space are
about the only means through which candidates can advertise
their qualifications and programs of government. More than
merely depriving candidates of time for their ads, the failure
of broadcast stations to provide airtime unless paid by the
government would clearly deprive the people of their right to
know. Art. III, § 7 of the Constitution provides that ‘the right
of the people to information on matters of public concern
shall be recognized...’[135] (emphasis supplied)
The importance of the people’s acquisition of information
can be gleaned from several provisions of the Constitution
under Article IX (C), The Commission on Elections. Section 4
provides that the COMELEC is given the power to “supervise or
regulate the enjoyment or utilization of all franchises or permits for
the operation of transportation and other public utilities, media of
communication or information, all grants, special privileges or
concession granted by the Government... Such supervision or
regulation shall aim to ensure equal opportunity, time, and space
and the right to reply, including reasonable, equal rates therefor,
for public information campaigns and forums among candidates in
connection with the objective of holding free, orderly, honest,
peaceful and credible elections. Section 6 provides that, “(a) free
and open party system shall be allowed to evolve according to the
free choice of the people”. Section 2(5) of the same article
requires political parties, organizations and coalitions to present
their platform or program of government before these can be
registered. In the robust and wide open debate of the electorate,
these programs of government are important matters for
discussion.

The deliberations of the Constitutional Commission on whether

voting of Congressmen should be by district or province also
evince a clear concern for intelligent voting, viz:

SR. TAN. Mr. Presiding Officer, I think one of the drawbacks of

our political system, especially in the campaign, is that many of us
vote by personality rather than by issue. So I am inclined to
believe that in the elections by district, that would be lessened
because we get to know the persons running more intimately. So
we know their motivation, their excesses, their weaknesses and
there would be less chance for the people to vote by personality. I
was wondering whether the Commission shares the same
observation.

MR. DAVIDE. Mr. Presiding Officer, if it would be by province, the

vote would no longer be personalities but more on issues,
because the relationship is not really very personal. Whereas, if it
would be by district, the vote on personality would be most
impressive and dominant.
SR. TAN. I cannot quite believe that. It would be like a superstar
running around.

MR. DAVIDE. For instance, we have a district consisting of two

municipalities. The vote would be more on personalities. It is a
question of attachment; you are the godson or the sponsor of a
baptism, like that. But if you will be voted by province, it’s your
merit that will be counted by all others outside your own area. In
short, the more capable you are, the more chance you have of
winning provincewide.[136]
Several provisions of our election laws also manifest a clear
intent to facilitate the voters’ acquisition of information
pertaining to elections to the end that their vote would truly
reflect their will. Section 52(j) of Article VII of B.P. Blg. 881 or the
Omnibus Election Code gives the COMELEC the following power
and duty:

(j) Carry out a continuing and systematic campaign through

newspapers of general circulation, radios and other media forms
to educate the public and fully inform the electorate about
election laws, procedures, decisions, and other matters
relative to the work and duties of the Commission and the
necessity of clean, free, orderly and honest electoral processes.
(Sec. 185(k), 1978 EC)

(k) Enlist non-partisan groups or organizations of citizens from the

civic, youth, professional, educational, business or labor sectors
known for their probity, impartiality and integrity...Such groups or
organizations...shall perform the following specific functions and
duties:
A. Before Election Day:
1. Undertake an information campaign on salient
features of this Code and help in the dissemination of
the orders, decisions and resolutions of the
 Commission relative to the forthcoming
election. (emphasis supplied)
Section 87 of Article X of B.P. Blg. 881 also provides, viz:

Section 87. xxx

Public Forum. - The Commission shall encourage non-political,

non-partisan private or civic organizations to initiate and hold in
every city and municipality, public for at which all registered
candidates for the same office may simultaneously
and personally participate to present, explain, and/or debate
on their campaign platforms and programs and other like
issues... (emphasis supplied)
Section 93 of the same Article provides, viz:

Section 93. Comelec information bulletin. - The Commission shall

cause the printing, and supervise the dissemination of bulletins to
be known as “Comelec Bulletin” which shall be of such size as to
adequately contain the picture, bio-data and program of
government of every candidate. Said bulletin shall be
disseminated to the voters or displayed in such places as to
give due prominence thereto. (emphasis supplied)
Of the same import is Section 25 of R.A. No. 8436, “An Act
Authorizing the Commission on Elections to Use an Automated
Election System in the May 11, 1998 Elections and Subsequent
Electoral Exercises” which provides, viz:

Section 25. Voters’ Education. - The Commission together with

and in support of accredited citizens’ arms shall cany out a
continuing and systematic campaign though newspapers of
general circulation, radio and other media forms, as well as
through seminars, symposia, fora and other nontraditional means
to educate the public and fully inform the electorate about the
automated election system and inculcate values on honest,
peaceful and orderly elections. (emphasis supplied)
Similarly, R.A. No. 9006, “An Act to Enhance the Holding of Free,
Orderly, Honest, Peaceful and Credible Elections through Fair
Election Practices,” approved a few months before the May 2001
elections or on February 12, 2001 provides in Section 6.4, viz:

Sec. 6.4. xxx xxx xxx

In all instances, the COMELEC shall supervise the use and

employment of press, radio and television facilities insofar as the
placement of political advertisements is concerned to ensure that
candidates are given equal opportunities under equal
circumstances to make known their qualifications and their
stand on public issues within the limits set forth in the Omnibus
Election Code and Republic Act No. 7166 on election spending.
(emphasis supplied)
The Omnibus Election Code also provides for procedures and
requirements that make the election process clear and orderly to
avoid voter confusion. Article IX of the Code provides, viz:

Section 73. Certificate of candidacy.- No person shall be eligible

for any elective public office unless he files a sworn certificate of
candidacy within the period fixed herein.

xxx xxx xxx

No person shall be eligible for more than one office to be

filled in the same election, and if he files his certificate of
candidacy for more than one office, he shall not be eligible for any
of them...

xxx xxx xxx

Certificates of Candidacy; Certified List of Candidates. -...

...the Commission shall cause to be printed certified lists of

candidates containing the names of all registered candidates
for each office to be voted for in each province, city or
municipality immediately followed by the nickname or stage name
of each candidate duly registered in his certificate of candidacy
and his political affiliation, if any. Said list shall be posted inside
each voting booth during the voting period.

xxx xxx xxx

The names of all registered candidates immediately followed

by the nickname or stage name shall also be printed in the
election returns and tally sheets (R.A. No. 6646, Sec. 4)

Section. 74. Contents of certificate of candidacy. The certificate of

candidacy shall state that the person filing it is announcing his
candidacy for the office stated therein and that he is eligible for
said office;...
Article XVI, Section 181, also provides, viz:

Section 181. Official ballots. -

xxx xxx xxx

(b) The official ballot shall also contain the names of all the
officers to be voted for in the election, allowing opposite the
name of each office, sufficient space or spaces with
horizontal lines where the voter may write the name or
names of individual candidates voted for by him.
In the case of special elections, the need for notice and
information is unmistakable under Section 7 of the Omnibus
Election Code of the Philippines, as amended by R.A. No. 7166,
which provides, viz:

Sec. 7. Call for special election. - In case a permanent vacancy

shall occur in the Senate or House of Representatives at least
one (1) year before the expiration of the term, the Commission
shall call and hold a special election to fill the vacancy not earlier
than sixty (60) days nor longer than ninety (90) after the
occurrence of the vacancy. However, in case of such vacancy in
the Senate, the special election shall be held simultaneously with
the succeeding regular election. (R.A. No. 7166, Sec. 4)

The postponement, declaration of failure of election and the

calling of special elections as provided in Sections 5, 6, and 7 of
the Omnibus Election Code shall be decided by the Commission
sitting en banc by a majority vote of its members. The causes for
the declaration of a failure of election may occur before or after
the casting of votes or on the day of the election. (R.A. No. 7166,
Sec. 4)

The Commission shall send sufficient copies of its resolution

for the holding of the election to its provincial election
supervisors and election registrars for dissemination, who
shall post copies thereof in at least three conspicuous places
preferably where public meetings are held in each city or
municipality affected. (1978 EC, Sec. 8) (emphasis supplied)
In Hassan v. COMELEC, et al.,[137] we ruled that constituents
could not be charged with notice of a second special elections
held only two days after the failure of the special election. This
case involved the May 8, 1995 regular local elections in Madalum,
Lanao del Sur. Due to the threats of violence and terrorism in the
area, there was a failure of election in six out of twenty-four
precincts in Madalum. A special elections was set on May 27,
1995 but the Board of Election Inspectors failed to report for duty
due to the threats of violence. The Monitoring Supervising Team
of the COMELEC reset the special elections to May 29, 1995 in a
school 15 kilometers away from the designated polling places. In
ruling that the May 29 special elections was invalid, the Court
ruled, viz:
We cannot agree with the COMELEC that petitioner, his followers
or the constituents must be charged with notice of the special
elections to be held because of the failure of the two (2) previous
elections. To require the voters to come to the polls on such short
notice was highly impracticable. In a place marred by violence, it
was necessary for the voters to be given sufficient time to be
notified of the changes and prepare themselves for the
eventuality.

It is essential to the validity of the election that the voters

have notice in some form, either actual or constructive of the
time, place and purpose thereof. (Furste v. Gray, 240 Ky 604,
42 SW 2d 889; State ex. rel. Stipp v. Colliver (MO) 243 SW 2d
344.) The time for holding it must be authoritatively designated in
advance. The requirement of notice even becomes stricter in
cases of special elections where it was called by some authority
after the happening of a condition precedent, or at least there
must be a substantial compliance therewith so that it may fairly
and reasonably be said that the purpose of the statute has been
carried into effect. (State ex. rel. Stipp v. Colliver, supra). The
sufficiency of notice is determined on whether the voters
generally have knowledge of the time, place and purpose of
the elections so as to give them full opportunity to attend the
polls and express their will or on the other hand, whether the
omission resulted in depriving a sufficient number of the
qualified electors of the opportunity of exercising their
franchise so as to change the result of the election. (Housing
Authority of County of Kings v. Peden, 212 Cal App 2d 276, 28
Cal Rptr, other citations omitted)
xxx xxx xxx

...even in highly urbanized areas, the dissemination of notices

poses to be a problem. In the absence of proof that actual
notice of the special elections has reached a great number of
voters, we are constrained to consider the May 29 elections
as invalid...(emphases supplied)
Although this case did not involve a special election held
simultaneously with a general election by mandate of law as in
the case bar, the doctrine that can be derived from this case is
that the electorate must be informed of the special election as
proved by official or actual notice.

VII. Application of the Principles of Democracy,

Republicanism

Freedom of Information and Discourse to the Case at Bar

The 1987 Constitution, with its declaration that the Philippines is

not only a republican but also a democratic state, and its various
provisions broadening the space for direct democracy
unmistakably show the framers’ intent to give the Filipino people a
greater say in government. The heart of democracy lies in the
majoritarian rule but the majoritarian rule is not a mere game of
dominant numbers. The majority can rule and rule effectively only
if its judgment is an informed one. With an informed electorate, a
healthy collision of ideas is assured that will generate sparks to
fan the flames of democracy. Rule by the ignorant majority is a
sham democracy - a mobocracy -for in the words of
Jefferson, a nation cannot be both free and ignorant. If there
is anything that democracy cannot survive, it is the virus of
ignorance.

Elections serve as a crevice in the democratic field where voters,

for themselves and the public good, plant the seeds of their ideals
and freedoms. Yick Wo is emphatic that voting is a fundamental
right that preserves and cultivates all other rights. In a republic
undergirded by a social contract, the threshold consent of
equal people to form a government that will rule them is
renewed in every election where people exercise their
fundamental right to vote to the end that their chosen
representatives will protect their natural rights to life, liberty
and property. It is this sacred contract which makes
legitimate the government’s exercise of its powers and the
chosen representatives’ performance of their duties and
functions. The electoral exercise should be nothing less than a
pure moment of informed judgment where the electorate speaks
its mind on the issues of the day and choose the men and women
of the hour who are seeking their mandate.

The importance of information and discourse cannot be

overemphasized in a democratic and republican setting. Our
constitutional provisions and cases highlighting the people’s right
to information and the duty of the State to provide information
unmistakably recognize the indispensable need of properly
informing the citizenry so they can genuinely participate in and
contribute to a functioning democracy. As elections lie at the
foundation of representative democracy, there should be no
quarrel over the proposition that electoral information should also
be disseminated to the electorate as a predicate to an informed
judgment.

The ponencia concedes that a survey of COMELEC’s resolutions

relating to the conduct of the May 14, 2001 elections would reveal
that they “contain nothing which would amount to a compliance,
either strict or substantial, with the requirements in Section 2 of
R.A. No. 6645, as amended.” Nowhere in its resolutions or even
its press releases did COMELEC state that it would hold a special
election for a single Senate seat with a three-year term
simultaneously with the regular elections on May 14, 2001. Nor
did COMELEC give official notice of the manner by which the
special election would be conducted, i.e., that the senatorial
candidate receiving the 13th highest number of votes in the
election would be declared winner in the special election. Still,
the ponencia upheld the holding of the May 14, 2001 special
election despite “the lack of ‘call’ for such election and ... lack of
notice as to the office to be filled and the manner by which the
winner in the special election is to be determined.”

With all due respect, I cannot subscribe to

the ponencia’s position for it leaves the purity of elections
and the ascertainment of the will of the electorate to chance,
conjecture and speculation. Considering that elections lie at the
heart of the democratic process because it is through the act of
voting that consent to government is secured, I choose to take a
position that would ensure, to the greatest extent possible, an
electorate that is informed, a vote that is not devalued by
ignorance and an election where the consent of the governed is
clear and unequivocal.

The ponencia justifies its position on the lack of call or notice of

the time and place of the special election by holding that the law
charges voters with knowledge of R.A. No. 7166 which provides
that in case of a vacancy in the Senate, the special election to fill
such vacancy shall be held simultaneously with the next
succeeding election, that is, the May 14, 2001 election.
The ponencia’s argument is that the provisions of R.A. No. 7166
stating that the special election would be held simultaneously with
the regular election operated as a call for the election so that the
absence of a call by the COMELEC did not taint the validity of the
special election. With due respect, this is not the intention of R.A.
No. 7166 for despite its paragraph 1, Section 7 that “in case of
such vacancy in the Senate, the special election shall be held
simultaneously with the succeeding regular election”, the law
nevertheless required in paragraph 3 of the same section
that “(t)he Commission shall send sufficient copies of its
resolution for the holding of the election to its provincial
election supervisors and election registrars for
dissemination, who shall post copies thereof in at least three
conspicuous places preferably where public meetings are
held in each city or municipality affected.”

The Duquette case cited by the ponencia does not lend support
to its thesis that statutory notice suffices. In Duquette, it was held
that in the absence of an official notice of the special election
mandated by law to be held simultaneously with the general
election, there should be actual notice of the electorate.
Actual notice may be proved by the voting of a significant
percentage of the electorate for the position in the special election
or by other acts which manifest awareness of the holding of a
special election such as nomination of candidates. In the case at
bar, however, the number of votes cast for the special
election cannot be determined as the ballot did not indicate
separately the votes for the special election. In fact, whether
or not the electorate had notice of the special election, a
candidate would just the same fall as the 13th placer because
more than twelve candidates ran for the regular senatorial
elections. Nobody was nominated to vie specifically for the
senatorial seat in the special election nor was there a certificate of
candidacy filed for that position. In the absence of official notice of
the time, place and manner of conduct of the special election,
actual notice is a matter of proof. Respondents and the ponencia
cannot point to any proof of actual notice.

With respect to the lack of notice of the manner by which the

special election would be conducted, i.e., that the 13th placer
would be declared winner in the special election, there can be no
debate that statutory notice will not operate as notice to the
electorate as there is no law providing that a special election held
simultaneously with a general election could be conducted in the
manner adopted by the Senate and the COMELEC. Instead,
the ponencia buttresses its holding by stating that the petitioner
has not claimed nor proved that the failure of notice misled a
sufficient number of voters as would change the result of the
special senatorial election. It relies on “actual notice from many
sources, such as media reports of the enactment of R.A. No.
6645 and election propaganda during the campaign” but without
even identifying these media reports and election propaganda.
Suffice to state that before the ponencia can require proof that a
sufficient number of voters was misled during the May 14, 2001
elections, it must first be shown that in the absence of official
notice of the procedure for the special election, there was
nevertheless actual notice of the electorate so that the special
election could be presumed to be valid. Only then will the duty
arise to show proof that a sufficient number of voters was misled
to rebut the presumption of validity.

I respectfully submit that the electorate should have been

informed of the time, place and manner of conduct of the May 14,
2001 special election for the single senatorial seat for the
unexpired term of former Senator Teofisto Guingona,
Jr. Tolentino, UNIDO, Blo Umpar Adiong and Hassan all
deepened the doctrine that a meaningful exercise of the right of
suffrage in a genuinely free, orderly and honest election is
predicated upon an electorate informed on the issues of the day,
the programs of government laid out before them, the candidates
running in the election and the time, place and manner of conduct
of the election. It is for this reason that the Omnibus Election
Code is studded with processes, procedures and requirements
that ensure voter information.

Bince and Benito further teach us that free and intelligent vote is
not enough; correct ascertainment of the will of the people is
equally necessary. The procedure adopted in the case at bar for
holding the May 14, 2001 special senatorial election utterly failed
to ascertain the people’s choice in the special election.
Section 2 of R.A. No. 7166 provides that the “special election
shall be held simultaneously with such general election.” It does
not contemplate, however, the integration of the special
senatorial election into the regular senatorial election
whereby candidates who filed certificates of candidacy for
the regular elections also automatically stand as candidates
in the special election. The Omnibus Election Code is crystal
clear that a candidate can run for only one position in an election.
Consequently, there were no candidates in the special election to
vote for. Separate sets of candidates for the special election and
the regular elections are decisive of the election results. Each
independent-minded voter could have a variety of reasons for
choosing a candidate to serve for only the unexpired term of three
years instead of the regular term of six years or not choosing a
candidate at all. A voter might choose a neophyte to serve the
three-year term as a shorter trial period. Another might be minded
to choose an old timer to compel him to hasten the completion of
his projects in a shorter period of three years. Still another might
want to afford a second termer who has not performed too
satisfactorily a second chance to prove himself but not for too
long a period of six years. In not allowing the voter to
separately indicate the candidate he voted for the three-year
senatorial term, the voter was deprived of his right to make
an informed judgment based on his own reasons and
valuations. Consequently, his true will in the special election was
not ascertained. As a particle of sovereignty, it is the thinking
voter who must determine who should win in the special election
and not the unthinking machine that will mechanically ascertain
the 13th placer in the general election by mathematical
computations.

The models to follow in the conduct of special elections

mandated by law to be held simultaneously with a general
elections are the special elections of November 13, 1951 and
November 8, 1955 to fill the seats vacated by then Senators
Fernando Lopez and Carlos P. Garcia, respectively. In these
special senatorial elections, election activities prior (i.e., filing of
certificate of candidacies), during (i.e., the act of voting for a
special election candidate distinct from the candidates for the
regular election) and after the election (i.e., tallying and
canvassing of results) were conducted simultaneously with,
but distinctly from the regular senatorial elections. This
procedure minimized voter confusion and allowed the voter to
freely and accurately speak his mind and have his will truly
ascertained. Regrettably, this objective appears to have been lost
in the calling of the May 14, 2001 special election as can be
gleaned from the Senate deliberations on the resolution calling for
that election, viz:

S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are

leaving the mechanics to the Commission on Elections. But
personally, I would like to suggest that probably, the candidate
obtaining the 13th largest number of votes be declared as elected
to fill up the unexpired term of Senator Guingona.

S[ENATOR] O[SMEÑA]. (J). Is there a law that would allow the

Comelec to conduct such an election? Is it not the case that the
vacancy is for a specific office? I am really at a loss. I am rising
here because I think it is something that we should consider. I do
not know if we can...No, this is not a Concurrent Resolution.

S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the

Senate President.

T[HE] P[RESIDENT]. May I share this information that under

Republic Act No. 6645, what is needed is a resolution of this
Chamber calling attention to the need for the holding of a special
election to fill up the vacancy created, in this particular case, by
the appointment of our colleague, Senator Guingona, as Vice
President.

It can be managed in the Commission on Elections so that a slot

for the particular candidate to fill up would be that reserved for Mr.
Guingona’s unexpired term. In other words, it can be arranged in
such a manner.

xxx xxx xxx

S[ENATOR] R[OCO]. Mr. President.

T[HE] P[RESIDENT]. Sen Raul S. Roco is recognized.

S[ENATOR] R[OCO]. May we suggest, subject to a one-minute

caucus, wordings to the effect that in the simultaneous elections,
the 13th placer be therefore deemed to be the special election for
this purpose. So we just nominate 13 and it is good for our
colleagues. It is better for the candidates. It is also less expensive
because the ballot will be printed and there will be less
disenfranchisement.

T[HE] P[PRESIDENT]. That is right.

S[ENATOR] R[OCO]. If we can just deem it therefore under

this resolution to be such a special election, maybe, we
satisfy the requirement of the law.

T[HE] P[RESIDENT]. Yes. In other words, this shall be a

guidance for the Comelec.

S[ENATOR] R[OCO]. Yes.

T[HE] P[RESIDENT]. - to implement.

S[ENATOR] R[OCO]. Yes. The Comelec will not have the

flexibility.

T[HE] P[RESIDENT]. That is right.

S[ENATOR] R[OCO]. We will already consider the 13 th placer of
the forthcoming elections that will be held simultaneously a? a
special election under this law as we understand it.

T[HE] P[RESIDENT]. Yes. That will be a good compromise,

Senator Roco.

S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that

later, maybe it will be better, Mr. President.

T[HE P[RESIDENT]. What does the sponsor say?

S[ENATOR] [T]ATAD. Mr. President, that is a most

satisfactory proposal because I do not believe that there will
be anyone running specifically -

T[HE] P[RESIDENT]. Correct.

S[ENATOR] T[ATAD]. - to fill up this position for three years

and campaigning nationwide.

T[HE] P[RESIDENT]. Actually, I think what is going to happen

is the 13th candidate will be running with specific groups.

S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.

T[HE] P[RESIDENT]. I think we can specifically define that as

the intent of this resolution.

S[ENATOR] T[ATAD]. Subject to style, we accept that

amendment and if there will be no other amendment, I move for
the adoption of this resolution.

ADOPTION OF S. RES. NO. 934

If there are not other proposed amendments, I move that we
adopt this resolution.

T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is

there any objection? [Silence] There being none, the motion is
approved.[138] (emphases supplied)
The Senate’s observation that the procedure for the special
election that it adopted would be less costly for the government as
the ballots need not be printed again to separately indicate the
candidate voted for the special election does not also lend
justification for the manner of conduct of the May 14, 2001 special
election. We cannot bargain the electorate’s fundamental right to
vote intelligently with the coin of convenience. Even with the
Senate stance, the regular ballot had to be modified to include a
thirteenth space in the list of senatorial seats to be voted for. At
any rate, reliance on R.A. No. 6645 is erroneous. This law
provides that when a vacancy arises in the Senate, the Senate,
by resolution, certifies to the existence of the vacancy and
calls for a special election. Upon receipt of the resolution,
the COMELEC holds the special election. R.A. No. 6645 was
amended in 1991 by R.A. No. 7166. The latter law provides that
when a permanent vacancy occurs in the Senate at least one
year before the expiration of the term, “the Commission (on
Elections) shall call and hold a special election to fill the
vacancy...” Since under R.A. No. 7166, it is the power and duty of
the COMELEC, and not the Senate, to call and hold the election,
the Senate cannot, by mere resolution, impose upon the
COMELEC the procedure for the special election that it intended
such that “Comelec will not have the flexibility” to deviate
therefrom. As a constitutional body created to ensure “free,
orderly, honest, peaceful, and credible elections”, it was the duty
of the COMELEC to give to the electorate notice of the time, place
and manner of conduct of the special elections and to adopt only
those mechanisms and procedures that would ascertain the true
will of the people.
In sum, I submit that the ruling of the ponencia would result not
just to a step back in an age of information, but would constitute a
fall in the nation’s rise to democracy begun as early as the
Malolos Constitution and begun anew in the 1987 Constitution
after the 1986 People Power Revolution. Informing the electorate
on the issues and conduct of an election is a prerequisite to a
“free, orderly, honest, peaceful, and credible elections.” Free
elections does not only mean that the voter is not physically
restrained from going to the polling booth, but also that the
voter is unrestrained by the bondage of ignorance. We
should be resolute in affirming the right of the electorate to
proper information. The Court should not forfeit its role as
gatekeeper of our democratic government run by an
informed majority. Let us not open the door to ignorance.

I vote to grant the petition.

G.R. No. L-22335 December 31, 1965

AMANTE P. PURISIMA, petitioner,

vs.
HON. ANGELINO C. SALANGA, Judge of the Court of First
Instance of Ilocos Sur. THE PROVINCIAL BOARD OF
CANVASSERS, THE COMMISSION ON ELECTIONS and
GREGORIO CORDERO, respondents.

Jose W. Diokno for petitioner.

Provincial Fiscal Juvenal K. Guerrero for respondent Provincial
Board of Canvassers
Antonio Barredo for respondents Judge Salanga and Gregorio
Cordero
Ramon Barrios for respondent Commission on Elections.

BENGZON, J.P., J.:

In the election of November 12, 1963, Amante Purisima and
Gregorio Cordero were among the candidates for any of the three
offices of Provincial Board Member of Ilocos Sur. After the
election or on November 25, 1963 the provincial board of
canvassers met and started canvassing the returns for said office.

Purisima noted during the canvass that the returns from some
precincts, forty-one (41) in all, showed on their face that the words
and figures for Cordero's votes had been "obviously and
manifestly erased" and superimposed with other words and
figures. For purposes of comparison, the Nacionalista Party
copies of the returns for the aforesaid precincts were submitted to
the board. A discrepancy of 5,042 votes in favor of Cordero was
thereby found, thus:

Provincial 7,277 votes

Treasurer's copy: for Cordero

Nacionalista 2,235 votes

Party's copy for Cordero

A request for suspension of the canvass was thereupon made by

Purisima. The board of canvassers denied said request upon the
ground that it was not yet ascertainable if the discrepancies would
materially affect the result. Canvass proceeded.

After the returns had all been read, the result for the office of third
(and last) member of the Provincial Board was the following:

Cordero 41,229 votes

Purisima 39,372 votes.

Difference 1,857 votes

Purisima again called attention to the erasures and discrepancies
and asked for suspension of canvass — for him to have recourse
to judicial remedy. Denying said request, the board of canvassers
finished the canvass and proclaimed Cordero the winner, on
November 28.

On November 29, Purisima filed a petition in the Commission on

Elections to annul the canvass and proclamation above-
mentioned. The Commission on Elections issued a resolution on
November 30, annulling the canvass and proclamation, as
regards Cordero and Purisima.

Purisima, on December 10, filed in the Court of First Instance a

petition for recount under Section 163 of the Revised Election
Code. Subsequently, motions to dismiss the same were filed by
the board of canvassers and by Cordero. In his motion to dismiss,
Cordero admitted the erasures and discrepancies on the face of
the returns from 41 precincts, but denied that said erasures were
due to tampering or falsification.

After a preliminary hearing on the motions to dismiss, the Court of

First Instance, on December 27, dismissed the petition for
recount. And on December 28, Cordero filed in the Commission
on Elections a motion for resumption of the canvass.

Purisima, on January 2, 1964, moved for reconsideration of the

Court of First Instance's order of dismissal. In the same case, he
also filed, on January 8, a petition for preliminary injunction to
restrain the holding of another canvass. Annexed to said petition
were certified photostatic copies of the Comelec's copies of the
returns from the 41 precincts in question. Furthermore, Purisima
filed with the Commission on Elections, on January 11, an
opposition to the resumption of the canvass.

Alleging that the Commission on Elections was about to order the

canvass resumed, Purisima came to this Court, on January 17,
1964, by petition for certiorari with preliminary injunction.
Petitioner asked that the lower court's order dismissing his
petition for recount be set aside and that the Commission on
Elections be enjoined from ordering resumption of the canvass
until after the judicial recount.

On January 22, 1964 we ordered respondents to answer, and

allowed preliminary injunction to be issued as prayed for upon the
posting of a bond of P500.00. After respondents filed their answer
the case was heard and submitted for decision.

The requisites for judicial recount are set forth in Section 163 of
the Revised Election Code:

When statements of precinct are contradictory. — In case it

appears to the provincial board of canvassers that another
copy or other authentic copies of the statement from an
election precinct submitted to the board give to a candidate a
different number of votes and the difference affects the result
of the election, the Court of First Instance of the province,
upon motion of the board or of any candidate affected, may
proceed to recount the votes cast in the precinct for the sole
purpose of determining which is the true statement or which
is the true result of the count of the votes cast in said
precinct for the office in question. Notice of such proceeding
shall be given to all candidates affected.

In dismissing the petition for recount, respondent Judge stated

that some of the requisites were not present, namely: first, that it
appears to the provincial board of canvassers that a discrepancy
exists; second, that said discrepancy is between the copy
submitted to the board and another authentic copy thereof; third,
that said authentic copy must also be submitted to the board.

First of all, it is not disputed that a candidate affected can file the
petition for recount, even if he does so alone, without the
concurrence of the provincial board of canvassers (Cawa v. Del
Rosario, L-16837-40, May 30,1960). From the fact, therefore, that
the provincial board of canvassers has not petitioned for a recount
it cannot be inferred that they were not convinced a discrepancy
existed.

In fact, when Purisima first called attention to the discrepancy

between the Nacionalista Party copies and the Provincial
Treasurer's copies, the board of canvassers admitted the
discrepancy but stated that it was not yet ascertainable whether
the discrepancy would amount to enough votes as to affect the
result. There is no more question now that the number of votes
involved in said discrepancy is more than enough to alter the
result.

Finally, in the motion to dismiss filed by the board of canvassers,

the existence of the discrepancy is not disputed, and the board
merely raises the defense that the recount is up to the court and
not to said board (Annex D, Petition).

Passing on to the next point, the basis of the petition for recount
was not merely a discrepancy between the Nacionalista Party
copies and the Provincial Treasurer's copies of the returns.
Paragraph 8 of said petition shows that, in addition, the
Commission on Elections' copies were relied upon:

That as a result of the aforesaid erasures, tampering and

apparent falsifications, there exist discrepancies between the
Provincial Treasurer's copies (the basis of the canvass) of
the election returns in the precincts in question, on one
hand, and the copies pertaining to the Nacionalista Party
and those pertaining to the Commission on Elections, on the
other, and that said discrepancies materially affect the result
of the election as between herein petitioner and respondent
Gregorio Cordero;
Accordingly, even assuming for the nonce — a point we do not
here decide — that the Nacionalista Party copies are not copies
that may be the basis of a petition for recount, the fact remains
that the Commission on Elections' copies were said to reflect the
same discrepancy with the Provincial Treasurer's copies. It is
settled that the Commission on Elections' copies are authentic
copies within the meaning of Section 163 of the Revised Election
Code (Laws in v. Escalona, L-22540, July 31, 1964; Matanog v.
Alejandro, L-22502-08, June 30, 1964.)

The trial court. however, ruled that the Commission on Elections'

copies had no application to the petition for recount because they
were not submitted to the board of canvassers. The record
definitely shows that the reason why Purisima was not able to
submit to the board said Commission on Elections' copies was
because the board declined to suspend the canvass and
proclamation.

It is the duty of the board of canvassers to suspend the canvass

in case of patent irregularity in the election returns. In the present
case, there were patent erasures and superimpositions, in words
and figures on the face of the election returns submitted to the
board of canvassers. It was therefore imperative for the board to
stop the canvass so as to allow time for verification of authentic
copies and recourse to the courts (Javier v. Commission on
Elections, L-22248, January 30, 1965). A canvass or proclamation
made notwithstanding such patent defects, without awaiting
proper remedies, is null and void (Ibid.). In fact, as stated, the
Commission on Elections declared the canvass and proclamation,
made by respondent provincial board of canvassers, null and
void.

Since the board of canvassers prevented Purisima from securing

the Commission on Elections' copies of the returns to establish a
discrepancy between them and the Provincial Treasurer's copies,
the failure to submit the Commission on Elections' copies to said
board should not prejudice Purisima's right to petition for recount
before the court. It was therefore grave abuse of discretion for
respondent court to refuse to consider the Commission on
Elections' copies, regardless of the patent and admitted
irregularities on the face of the Provincial Treasurer's copies and
the alleged discrepancy amounting to thousands of votes
sufficient to affect the results.

Interpretation of election laws should give effect to the expressed

will of the electorate. Patent erasures and superimpositions in
words and figures of the votes stated in the election returns strike
at the reliability of said returns as basis for canvass and
proclamation. A comparison with the other copies, and, in case of
discrepancy, a recount, is the only way to remove grave doubts
as to the correctness of said returns as well as of ascertaining
that they reflect the will of the people.

WHEREFORE, the dismissal of the petition for recount is set

aside, respondent Judge is ordered to proceed with the petition
for recount, and respondents Commission on Elections and
Provincial Board of Canvassers are enjoined, until after the
termination of proceedings in the petition for recount, from
ordering or holding another canvass and proclamation as
between petitioner Purisima and respondent Cordero.

G.R. No. L-25467 April 27, 1967

LUCAS V. CAUTON, petitioner,

vs.
COMMISSION ON ELECTIONS and PABLO
SANIDAD, respondents.

Antonio Barredo for petitioner.

Ramon Barrios for respondent Commission on Elections.
Pablo C. Sanidad and F. D. Villanueva and Associates for
respondent Sanidad.

ZALDIVAR, J.:

In the national elections held on November 9, 1965, petitioner

Lucas V. Cauton and respondent Pablo Sanidad, along with
Godofredo S. Reyes, were candidates for the office of
Representative in the second congressional district of Ilocos Sur.

During the canvass by the Provincial Board of Canvassers of

Ilocos Sur of the votes cast for the candidates for Representative
in the second congressional district of Ilocos Sur, and particularly
after the Board had opened the envelopes containing the copies
of the election returns from each of the election precincts in the
municipalities of Candon, Santiago and Sta. Cruz that were
presented by the Provincial Treasurer of Ilocos Sur to the Board,
respondent Sanidad brought to the attention of the Board the fact
that the entries of votes for the candidates for Representative in
those copies of the election returns that came from the envelopes
presented by the provincial treasurer differed from the entries
appearing in the copies of the returns from the same election
precincts that were in the possession of the Liberal
Party.1äwphï1.ñët

Respondent Sanidad filed a petition with the Commission on

Elections praying for the opening of the ballot boxes in all the
precincts of Candon, Santiago and Sta. Cruz, in order to retrieve
the election returns deposited therein so that those election
returns might be used in the canvass of the votes for the
candidates for Representative in the second district of Ilocos Sur,
and that in the meantime the Provincial Board of Canvassers of
Ilocos Sur be ordered to refrain from proclaiming the winning
candidate for the office of Representative in said district. The
Commission on Elections issued the restraining order prayed for
by respondent Sanidad and set his petition for hearing.
After hearing, the Commission on Elections found "that it had
been clearly established that the copies of the election returns for
the Municipal Treasurer, for the Commission on Elections and for
the Provincial Treasurer for the municipality of Santa Cruz have
uniform alterations in the entries of the votes cast for
representative showing different number of votes compared with
the Liberal Party copies, while the copies of the election returns
for the Commission on Elections and the Provincial Treasurer for
the municipalities of Candon and Santiago have likewise uniform
alterations and showing different numbers compared with the
Liberal Party copies ...."1The copies of the election returns that
were furnished the municipal treasurers of Candon and Santiago
were never verified because the municipal treasurers of those two
municipalities did not comply with the subpoena duces
tecum issued by the Commission on Elections directing them to
bring to the Commission the copies of the election returns of the
precincts in their respective municipalities that were in their
possession.

On December 22, 1965, respondent Commission on Elections

issued an order providing, among others, that

... to enable the aggrieved party to establish discrepancy

between copies of the election returns provided by law in the
aforementioned precincts for the purpose of obtaining
judicial remedy under the provisions of Section 163 of the
Revised Election Code, the Commission Resolved ... to
direct immediately the opening of the ballot boxes of the
municipalities of Candon, Sta. Cruz and Santiago which are
now impounded and under the custody of the Zone
Commander of the 1st PC Zone in Camp Olivas, San
Fernando, Pampanga solely for the purpose of retrieving
therefrom the corresponding election returns, copies for the
ballot box, in all the precincts of said municipalities.
Pursuant to the instructions of respondent Commission, contained
in the resolution of December 22, 1965, the ballot boxes from all
the precincts in the municipalities of Candon, Sta. Cruz and
Santiago were opened by the Chief of the Law Enforcement
Division of the Commission, Atty. Fernando Gorospe, Jr., in the
presence of witnesses, and the envelopes containing the election
returns found inside the ballot boxes were taken and brought to
Manila on December 23, 1965.

On the same date, December 23, 1965, herein petitioner, Lucas

V. Cauton, filed before this Court a petition for certiorari and
prohibition with preliminary injunction, praying that the resolution
of the respondent Commission on Elections dated December 22,
1965 ordering the opening of the ballot boxes used in all the
precincts of Candon, Sta. Cruz and Santiago in the elections of
November 9, 1965 be annulled and set aside. The petition further
prays that the Commission on Elections be restrained from
opening, the envelopes containing the election returns found in
the afore-mentioned ballot boxes and be ordered to return the
said envelopes to the corresponding ballot boxes. In his petition,
petitioner alleges that the respondent Commission on Elections
acted without or in excess of its jurisdiction in issuing the
resolution of December 22, 1965. This Court gave due course to
the petition, but did not issue the writ of preliminary injunction
prayed for. This petition is now the case before Us.

Upon instructions by respondent Commission on Elections, on

December 28, 1966, the envelopes that were taken from the
ballot boxes were opened and the election returns were taken out
and their contents examined and recorded by a committee
appointed by the Commission. This was done in a formal hearing
with notice to the parties concerned.

Respondent Pablo C. Sanidad filed his answer to instant petition

on January 5, 1966, admitting some of the allegations and
denying others, and maintaining that the Commission on
Elections had acted well within the bounds of its authority in
issuing the order of December 22, 1965. Respondent
Commission on Elections also filed its answer on January 5,
1966, maintaining that it has authority under the law to order the
opening of the ballot boxes as stated in its resolution of December
22, 1965.

In the meantime, on the basis of the discrepancies in the entries

of the votes for the candidates for Representative, between the
election returns taken out of the ballot boxes that were opened by
order of the Commission of Elections and the election returns
submitted by the Provincial Treasurer of Ilocos Sur to the
Provincial Board of Canvassers of Ilocos Sur, respondent Pablo
C. Sanidad filed a petition with the Court of First Instance of Ilocos
Sur, docketed as Election Case No. 16-N, for a recount of the
votes in all the precincts of Candon, Sta. Cruz and Santiago,
pursuant to the provisions of Section 163 of the Revised Election
Code.

On February 14, 1966, petitioner filed before this Court in urgent

motion, in this case, praying for the issuance of an order enjoining
the Court of First Instance of Ilocos Sur (Branch II-Narvacan) from
further proceeding with Election Case No. 16-N, abovementioned,
pending final decision of the instance case, upon the ground that
the recount of the ballots in that case in the court below would
render the instant case moot and academic. This motion was
denied by this Court in a resolution dated February 17, 1966.

The principal issue in the present case revolves on the of the

resolution of the respondent Commission of Elections, dated
December 22, 1965, which orders the opening of the ballot boxes
used in all the precincts in the municipalities of Candon, Sta. Cruz
and Santiago, Ilocos Sur, during the elections of November 9,
1965 for the purpose of retrieving therefrom the corresponding
election returns, copies for the ballot box, "to enable the
aggrieved party to establish discrepancy between copies of the
election returns provided by law in the aforementioned precincts
for the purpose of obtaining judicial remedy under the provisions
of Section 163 of the Revised Election Code."

It is the stand of the petitioner that respondent Commission on

Elections is without jurisdiction to issue, or has acted in excess of
jurisdiction in issuing, the resolution in question, so that said
resolution is null and void and should not be given legal force and
effect. The petitioner contends that under Section 157 of the
Revised Election Code the Commission on Elections has
authority to order the opening of the ballot boxes "only in
connection with an investigation conducted for the purpose of
helping the prosecution of any violation of the election laws or for
the purely administrative purpose but not when the sole purpose
is, as in this case, to assist a party in trying to win the election ...."
The petitioner further, contends that "the mere fact that the copies
of the returns in the precincts in question in the possession of the
Liberal Party do not tally with the returns involving the same
precincts in the possession of the Provincial Treasurer, the
Commission of Elections and the Nacionalista Party as well does
not legally support the validity of the resolution of the respondent
Commission in question ...."2

We cannot sustain the stand of the petitioner. We believe that in

issuing the resolution in question the Commission on Elections
simply performed a function as authorized by the Constitution,
that is, to "have exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections
and ... exercise all other functions which may be conferred upon it
by law." The Commission has the power to decide all
administrative questions affecting elections, except the question
involving the right to vote.3
This Court in a line of decisions has ruled that the Commission on
Election has the power to investigate and act on the propriety or
legality of the canvass of election returns made by the board of
canvassers. In the case of Albano vs. Arranz, L-19260, January
31, 1962, this Court, through Mr. Justice J.B.L. Reyes, held as
follows:

The suspension of the proclamation of the winning candidate

pending an inquiry into irregularities brought to the attention
of the Commission on Elections was well within its
administrative jurisdiction, in view of the exclusive authority
conferred upon it by the Constitution (Art. X ) for the
administration and enforcement of all laws relative to
elections. The Commission certainly had the right to inquire
whether or not discrepancies existed between the various
copies of election returns for the precincts in question, and
suspend the canvass all the meantime so the parties could
ask for a recount in case of variance ....'

What the respondent Commission on Elections did in the case

now before Us is just what is contemplated in the abovequoted
ruling of this Court. The power of the Commission on Elections in
this respect is simply administrative and supervisory — intended
to secure the proclamation of the winning candidate based on the
true count of the votes cast. When the Commission on Elections
exercises this power the purpose is not for the Commission to
help a candidate win the election but to bring about the canvass
of the true results of the elections as certified by the boards of
election inspectors in every precinct. 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. It is in this proceedings
that the Commission on Elections 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. Once the Commission on Elections is
convinced that the elections returns in the hands of the board of
canvassers do not constitute the proper basis in ascertaining the
true result of the elections, it should be its concern, nay its duty, to
order the taking of such steps as may be necessary in order that
the proper basis for the canvass is obtained or made available.

The election law requires the board of inspectors to prepare four

copies of the election return in each precinct — one to be
deposited in the ballot box, one to be delivered to the municipal
treasurer, one to be sent to the provincial treasurer, and one to be
sent to the Commission on Elections. In the case of the canvass
of the election returns for candidates for provincial or national
offices, the election returns received by the provincial treasurer
from the boards of inspectors are used. It is the duty of the
provincial treasurer to turn over to the provincial board of
canvassers the election returns received by him from the boards
of inspectors. If the Commission on Elections is duly informed and
it so finds, in appropriate proceedings, that the election returns in
the hands of the provincial treasurer are tampered, then the
Commission should afford the candidate adversely affected by the
tampering an opportunity to show that there exist authentic copies
of the same election returns which are not tampered. A recourse
may be had to the copies received by the Commission on
Elections and to the copies received by the municipal treasurer. If
it is shown, that the copies in the hands of the Commission on
Elections and of the municipal treasurer are similarly tampered as
the copies in the hands of the provincial treasurer, then it
becomes evident that all the three copies of the election returns
outside the ballot box do not constitute a reliable basis for a
canvass. The only copies left to be checked, whether they are
also tampered or not, are the ones inside the ballot boxes.
Certainly, the Commission on Elections, in the exercise of its
power to administer and enforce the laws relative to the conduct
of elections, may order the opening of the ballot boxes to
ascertain whether the copy inside each ballot box is also
tampered like the three copies outside the ballot box,
corresponding to each precinct. The Commission on Elections
may do this on its own initiative, or upon petition by the proper
party. Once it is found that the copy of the election return inside
the ballot box is untampered, the Commission on Elections would
then have accomplished two things, namely: (1) secured a basis
for the prosecution for the violation of the laws relative to
elections, and (2) afforded the party aggrieved by the alteration of
the election returns outside the ballot box a basis for a judicial
recount of the votes as provided for in Section 163 of the Revised
Election Code. Thus, the Commission on Elections has thereby
made available the proper and reliable basis for the canvass of
the votes that will lead to the proclamation by the board of
canvassers of the true winner in the elections. In so doing the
Commission on Elections, as we have said, had performed its
constitutional duty of administering and enforcing the laws relative
to the conduct of elections with a view to promoting clean and
honest elections — the very purpose for which the Commission
on Elections was created by constitutional mandate.

In the case now before Us, the Commission on Elections issued

the questioned resolution "after hearing the arguments of the
petitioner and the opposition thereto and considering that it has
been clearly established that the copies of the election returns for
the Municipal Treasurer, for the Commission on Elections and for
the Provincial Treasurer for the municipality of Sta. Cruz have
uniform alteration in the entries of the votes cast for
representative showing different number of votes compared with
the Liberal Party copies, while the copies of the election returns
for the Commission of Elections and the Provincial Treasurer for
the municipalities of Candon and Santiago have likewise uniform
alterations and showing different numbers compared with the
Liberal Party copies ..."5Indeed, in the face of this finding by the
Commission on Elections, which indicates a clear violation of the
election law, and which indicates an attempt to procure the
proclamation of the winner in the elections for Representative in
the second congressional district of Ilocos Sur by the use of
tampered election returns, can the Commission on Elections be
remiss in the performance of its duties as a constitutional body
committed with the exclusive charge of the enforcement and
administration of all laws relative to the conduct of elections? The
Revised Election Code gives to the Commission on Elections the
direct and immediate supervision over provincial, municipal and
city officials designated by law to perform duties relative to the
conduct of elections — and included among these officials are
members of the provincial board of canvassers.6The provincial
board of canvassers is enjoined by law to canvass all the votes
cast for Representatives on the basis of the election returns
produced by the provincial treasurer.7The Commission on
Elections has a duty to enforce this law and it has the duty to see
to it that the election returns to be used for canvassing must be
genuine and authentic, not falsified or tampered with. Where the
election returns produced by the provincial treasurer have been
shown to have been tampered, and all the other copies outside
the ballot boxes have also been shown to have been tampered or
falsified, it is certainly within the power of the Commission on
Elections to issue such order as would ascertain the existence of
the genuine, authentic and untampered election returns, and thus
open the way for the summary recount of the votes, in
accordance with law, for the purposes only of the canvass of the
votes and the proclamation of the candidate found to have
obtained the highest number of votes. In the case now before Us,
it is found by the Commission on Elections that no other copies
can be had except those deposited in the ballot boxes. Hence, the
necessity for the Commission to order the retrieving of the copies
of the election returns from the ballot boxes. An order to this effect
does not affect the right to vote or the validity of any vote cast, so
that it is perfectly within the power of the Commission on
Elections to issue such an order in the exercise of its exclusive
power to administer and enforce the laws relative to the conduct
of elections. It would indeed be absurd to say that the
Commission on Elections has a legal duty to perform and at the
same time it is denied the necessary means to perform said duty.

The purpose of the Revised Election Code is to protect the

integrity of elections and to suppress all evils that may violate its
purity and defeat the will of the voters.8The purity of the elections
is one of the most fundamental requisites of popular
government.9The Commission on Elections, by constitutional
mandate, must do everything in its power to secure a fair and
honest canvass of the votes cast in the elections. In the
performance of its duties, the Commission must be given a
considerable latitude in adopting means and methods that will
insure the accomplishment of the great objective for which it was
created — to promote free, orderly, and honest elections. The
choice of means taken by the Commission on Elections, unless
they are clearly illegal or constitute grave abuse of discretion,
should not be interfered with.10Technicalities, which are not
conducive to free, orderly and honest elections, but on the
contrary may defeat the will of the sovereign people as expressed
in their votes, should not be allowed to hamper the Commission
on Elections in the performance of its duties. To sustain the
petitioner in the present case is to deny the Commission on
Elections the power to retrieve the copies of the election returns
from the ballot boxes in order that the true number of votes cast
for a candidate may be known and thus permit a canvass on the
basis of election returns that are patently falsified. We cannot, and
We must not, sanction the stand of petitioner.

As We have adverted to, the Commission on Elections has the

power to inquire whether there exist discrepancies among the
various copies of the election returns.11Of all the copies prepared
by the board of inspectors the copy least susceptible to being
tampered with is the one deposited in the ballot box. Where the
three copies outside the ballot boxes appear to have been
uniformly altered, there is no plausible reason why the copy
deposited in the ballot box may not be used to determine whether
discrepancies exist in the various copies. Inasmuch as the
Commission on Elections has the right to determine whether said
discrepancies exist, it must also have the right to consult said
returns, which cannot be done unless the ballot boxes are
opened. It is noteworthy that the Revised Election Code does not
provide that it is the courts that have the power to order the
opening of the ballot box in a situation like this.

Section 157 of the Revised Election Code, on which petitioner

herein relies in support of his stand in the present case,
authorizes the opening of the ballot box whenever it is the subject
of an official investigation. It provides:

The municipal treasurer shall keep the boxes unopened in

his possession in a secure place and under his responsibility
for three months, unless they are the subject of an official
investigation, or a component court or tribunal shall demand
them sooner, or the competent authority shall order their
preservation for a longer time in connection with any pending
contest or investigation.

Under this section the ballot boxes may be opened in case there
is an election contest. They may also be opened even if there is
no election contest when their contents have to be used as
evidence in the prosecution of election frauds.12Moreover, they
may be opened when they are the subject of any official
investigation which may be ordered by a competent court or other
competent authority.13The "competent authority" must include the
Commission on Elections which is charged with the administration
and enforcement of the laws relative to the conduct of elections.
In the instant case the Commission on Elections found that it has
been clearly established that the election returns outside the
ballot boxes, in all the precincts in the municipalities of Candon,
Santiago and Sta. Cruz, have been tampered with. It is within the
power of the Commission to order the investigation of that
apparent anomaly that has connection with the conduct of
elections. The investigation may be in connection with the
prosecution for the violations of the election laws and at the same
time to ascertain the condition of the election returns inside the
ballot boxes as compared with the election returns outside the
ballot boxes, for the same precincts. The opening of the ballot
boxes may, therefore, be prayed for by a candidate who is
prejudiced by the apparent falsification of the election returns
outside the ballot boxes, and in ordering the opening of the ballot
boxes the purpose of the Commission is not to help a particular
candidate win an election but to properly administer and enforce
the laws relative to the conduct of elections.

From what has been said We hold that the order of December 22,
1965, being questioned by the petitioner in the present case, was
perfectly within the power of the Commission on Elections to
issue.

Wherefore, the petition for certiorari and prohibition in the present

case is dismissed, with costs against the petitioner. It is so
ordered.

G.R. No. 188456 September 10, 2009

H. HARRY L. ROQUE, JR., JOEL R. BUTUYAN, ROMEL R.

BAGARES, ALLAN JONES F. LARDIZABAL, GILBERT T.
ANDRES, IMMACULADA D. GARCIA, ERLINDA T. MERCADO,
FRANCISCO A. ALCUAZ, MA. AZUCENA P. MACEDA, and
ALVIN A. PETERS, Petitioners,
vs.
COMMISSION ON ELECTIONS, Represented by HON.
CHAIRMAN JOSE MELO, COMELEC SPECIAL BIDS and
AWARDS COMMITTEE, represented by its CHAIRMAN HON.
FERDINAND RAFANAN, DEPARTMENT OF BUDGET and
MANAGEMENT, represented by HON. ROLANDO ANDAYA,
TOTAL INFORMATION MANAGEMENT CORPORATION and
SMARTMATIC INTERNATIONAL
CORPORATION, Respondents.
PETE QUIRINO-QUADRA, Petitioner-in-Intervention.
SENATE OF THE PHILIPPINES, represented by its President,
JUAN PONCE ENRILE, Movant-Intervenor.

DECISION

VELASCO, JR., J.:

In a democratic system of government, the people’s voice is

sovereign. Corollarily, choosing through the ballots the men and
women who are to govern the country is perhaps the highest
exercise of democracy. It is thus the interest of the state to insure
honest, credible and peaceful elections, where the sanctity of the
votes and the secrecy of the ballots are safeguarded, where the
will of the electorate is not frustrated or undermined. For when the
popular will itself is subverted by election irregularities, then the
insidious seeds of doubt are sown and the ideal of a peaceful and
smooth transition of power is placed in jeopardy. To automate,
thus breaking away from a manual system of election, has been
viewed as a significant step towards clean and credible elections,
unfettered by the travails of the long wait and cheating that have
marked many of our electoral exercises.

The Commission on Elections (Comelec), private respondents,

the National Computer Center and other computer wizards are
confident that nationwide automated elections can be successfully
implemented. Petitioners and some skeptics in the information
technology (IT) industry have, however, their reservations, which
is quite understandable. To them, the automated election system
and the untested technology Comelec has chosen and set in
motion are pregnant with risks and could lead to a disastrous
failure of elections. Comelec, they allege, would not be up to the
challenge. Cheating on a massive scale, but this time facilitated
by a machine, is perceived to be a real possibility.

In this petition for certiorari, prohibition and mandamus with

prayer for a restraining order and/or preliminary injunction,
petitioners H. Harry L. Roque, Jr., et al., suing as taxpayers and
concerned citizens, seek to nullify respondent Comelec’s award of
the 2010 Elections Automation Project (automation project) to the
joint venture of Total Information Management Corporation (TIM)
and Smartmatic International Corporation (Smartmatic)1 and to
permanently prohibit the Comelec, TIM and Smartmatic from
signing and/or implementing the corresponding contract-award.

By Resolution2 of July 14, 2009, the Court directed the

respondents as well as the University of the Philippines (UP)
Computer Center, National Computer Center (NCC) and
Information Technology Foundation of the Philippines (Infotech,
hereinafter) to submit their collective or separate comments to the
petition on or before July 24, 2009. Before any of the comments
could actually be filed, Atty. Pete Quirino-Quadra sought leave to
intervene. In another resolution, the Court allowed the intervention
and admitted the corresponding petition-in-intervention.3

On July 29, 2009, the Court heard the principal parties in oral
arguments which was followed by the submission of their and the
resource persons’ instructive, albeit clashing, memoranda. The
Senate, through the Senate President, would later join the fray via
a Motion for Leave to Intervene. In a Resolution of August 25,
2009, the Court admitted the Senate’s comment-in-intervention.

From the petition, the separate comments thereon, with their

respective annexes, and other pleadings, as well as from
admissions during the oral arguments, the Court gathers the
following facts:

On December 22, 1997, Congress enacted Republic Act No. (RA)

8436 authorizing the adoption of an automated election system
(AES) in the May 11, 1998 national and local elections and
onwards. The 1998, 2001, and 2004 national and local polls,
however, came and went but purely manual elections were still
the order of the day. On January 23, 2007, the amendatory RA
93694 was passed authorizing anew the Comelec to use an AES.
Of particular relevance are Sections 6 and 10 of RA 9369––
originally Secs. 5 and 8, respectively of RA 8436, as amended––
each defining Comelec’s specific mandates insofar as automated
elections are concerned. The AES was not utilized in the May 10,
2000 elections, as funds were not appropriated for that purpose
by Congress and due to time constraints.

RA 9369 calls for the creation of the Comelec Advisory

Council5 (CAC). CAC is to recommend, among other functions,
the most appropriate, applicable and cost-effective technology to
be applied to the AES.6 To be created by Comelec too is the
Technical Evaluation Committee (TEC)7 which is tasked to certify,
through an established international certification committee, not
later than three months before the elections, by categorically
stating that the AES, inclusive of its hardware and software
components, is operating properly and accurately based on
defined and documented standards.8

In August 2008, Comelec managed to automate the regional polls

in the Autonomous Region of Muslim Mindanao9 (ARMM), using
direct recording electronics (DRE) technology10 in the province of
Maguindanao; and the optical mark reader/recording (OMR)
system, particularly the Central Count Optical Scan (CCOS),11 in
the rest of ARMM.12 What scores hailed as successful automated
ARMM 2008 elections paved the way for Comelec, with some
prodding from senators,13 to prepare for a nationwide
computerized run for the 2010 national/local polls, with the many
lessons learned from the ARMM experience influencing,
according to the NCC, the technology selection for the 2010
automated elections.14

Accordingly, in early March 2009, the Comelec released

the Request for Proposal (RFP), also known as Terms of
Reference (TOR), for the nationwide automation of the voting,
counting, transmission, consolidation and canvassing of votes for
the May 10, 2010 Synchronized National and Local Elections.
What is referred to also in the RFP and other contract documents
as the 2010 Elections Automation Project (Automation Project)
consists of three elaborate components, as follows:

Component 1: Paper-Based AES.15 1-A. Election

Management System (EMS); 1-B Precinct-Count Optic
Scan (PCOS) 16 System and 1-C. Consolidation/Canvassing
System (CCS);

Component 2: Provision for Electronic Transmission of

Election Results using Public Telecommunications Network;
and

Component 3: Overall Project Management

And obviously to address the possibility of systems failure, the

RFP required interested bidders to submit, among other things: a
continuity plan17 and a back-up plan. 18

Under the two-envelope system designed under the RFP,19 each

participating bidder shall submit, as part of its bid, an Eligibility
Envelope20 that should inter alia establish the bidder’s eligibility to
bid. On the other hand, the second envelope, or the Bid Envelope
itself, shall contain two envelopes that, in turn, shall contain the
technical proposal and the financial proposal, respectively.21
Subsequently, the Comelec Special Bids and Awards Committee
(SBAC), earlier constituted purposely for the aforesaid project,
caused the publication in different newspapers of the Invitation to
Apply for Eligibility and to Bid22 for the procurement of goods and
services to be used in the automation project.23 Meanwhile,
Congress enacted RA 9525 appropriating some PhP 11.3 billion
as supplemental budget for the May 10, 2010 automated national
and local elections.

Of the ten (10) invitation-responding consortia which obtained the

bid documents, only seven (7) submitted sealed applications for
eligibility and bids24 which, per Bid Bulletin No. 24, were to be
opened on a pre-set date, following the convening of the pre-bid
conference. Under the RFP, among those eligible to participate in
the bidding are manufacturers, suppliers and/or distributors
forming themselves into a joint venture. A joint venture is
defined as a group of two or more manufacturers, suppliers
and/or distributors that intend to be jointly and severally
responsible or liable for a particular contract.25

Among the submitted bids was that of the joint venture (JV) of
TIM and Smartmatic, the former incorporated under the
Corporation Code of the Philippines. Smartmatic, on the other
hand, was organized under the laws of Barbados.26 For a stated
amount, said JV proposed to undertake the whole automation
project, inclusive of the delivery of 82,200 PCOS machines. After
the conclusion of the eligibility evaluation process, only three
consortia27 were found and thus declared as eligible. Further on,
following the opening of the passing bidders’ Bid Envelope and
evaluating the technical and financial proposals therein contained,
the SBAC, per its Res. No. 09-001, s.-2009, declared the above-
stated bid of the JV of TIM-Smartmatic as the single complying
calculated bid.28 As required by the RFP, the bid envelope
contained an outline of the joint venture’s back-up and continuity
or contingency plans,29 in case of a systems breakdown or any
such eventuality which shall result in the delay, obstruction or
nonperformance of the electoral process.

After declaring TIM-Smartmatic as the best complying bidder, the

SBAC then directed the joint venture to undertake post-
qualification screening, and its PCOS prototype machines––the
Smarmatic Auditable Electronic System (SAES) 1800––to
undergo end-to-end30 testing to determine compliance with the
pre-set criteria.

In its Memorandum of June 01, 2009, on the Subject: Systems

Evaluation Consolidated Report and Status Report on the Post-
Qualification Evaluation Procedures, the SBAC Technical
Working Group (TWG) stated that it was undertaking a 4-day
(May 27 to May 30, 2009) test evaluation of TIM and Smartmatic’s
proposed PCOS project machines. Its conclusion: "The demo
systems presented PASSED all tests as required in the 26-item
criteria specified in the [RFP]" with 100% accuracy rating.31 The
TWG also validated the eligibility, and technical and financial
qualifications of the TIM-Smartmatic joint venture.

On June 9, 2009, Comelec, upon the recommendation of its

SBAC, the CAC and other stakeholders, issued Resolution No.
(Res.) 860832 authorizing the SBAC to issue, subject to well-
defined conditions, the notice of award and notice to proceed in
favor of the winning joint venture.

Soon after, TIM wrote Comelec expressing its desire to quit the
JV partnership. In time, however, the parties were able to patch
up what TIM earlier described as irreconcilable differences
between partners.

What followed was that TIM and Smartmatic, pursuant to the Joint
Venture Agreement (JVA),33 caused the incorporation of a joint
venture corporation (JVC) that would enter into a contract with the
Comelec. On July 8, 2009, the Securities and Exchange
Commission issued a certificate of incorporation in favor of
Smartmatic TIM Corporation. Two days after, or on July 10, 2009,
Comelec and Smartmatic TIM Corporation, as provider, executed
a contract34 for the lease of goods and services under the contract
for the contract amount of PhP 7,191,484,739.48, payable as the
"Goods and Services are delivered and/or progress is made in
accordance [with pre-set] Schedule of Payments."35 On the same
date, a Notice to Proceed36 was sent to, and received by,
Smartmatic TIM Corporation.

Meanwhile, or on July 9, 2009, petitioners interposed the instant

recourse which, for all intents and purposes, impugns the validity
and seeks to nullify the July 10, 2009 Comelec-Smartmatic-TIM
Corporation automation contract adverted to. Among others,
petitioners pray that respondents be permanently enjoined from
implementing the automation project on the submission that:

PUBLIC RESPONDENTS COMELEC AND COMELEC-SBAC

COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN AWARDING THE
2010 ELECTIONS AUTOMATION PROJECT TO PRIVATE
RESPONDENTS TIM AND SMARTMATIC FOR THE
FOLLOWING REASONS:

x x x COMELEC DID NOT CONDUCT ANY PILOT TESTING OF

THE x x x PCOS MACHINES OFFERED BY PRIVATE
RESPONDENTS SMARTMATIC AND TIM, IN VIOLATION OF
[RA] 8436 (AS AMENDED BY [RA] 9369)

THE [PCOS] MACHINES [THUS] OFFERED BY PRIVATE

RESPONDENTS x x x DO NOT SATISFY THE MINIMUM
SYSTEM CAPABILITIES SET BY [RA] NO. 8436 (AS AMENDED
BY [RA] 9369).

PRIVATE RESPONDENTS x x x DID NOT SUBMIT THE

REQUIRED DOCUMENTS DURING THE BIDDING PROCESS
THAT SHOULD ESTABLISH THE DUE EXISTENCE,
COMPOSITION, AND SCOPE OF THEIR JOINT VENTURE, IN
VIOLATION OF THE SUPREME COURT’S HOLDING
IN INFORMATION TECHNOLOGY FOUNDATION OF THE
PHILIPPINES, vs. COMELEC (G.R. No. 159139, Jan. 13, 2004).

THERE WAS NO VALID JOINT VENTURE AGREEMENT [JVA]

BETWEEN PRIVATE RESPONDENTS SMARTMATIC AND
TIM DURING THE BIDDING, IN VIOLATION OF THE SUPREME
COURT’S HOLDING IN INFORMATION TECHNOLOGY
FOUNDATION OF THE PHILIPPINES vs. COMELEC x x x
WHICH REQUIRES A JOINT VENTURE TO INCLUDE A COPY
OF ITS [JVA] DURING THE BIDDING.

THE ALLEGED JOINT VENTURE COMPOSED OF PRIVATE

RESPONDENTS SMARTMATIC AND TIM, DOES NOT SATISFY
THE SUPREME COURT’S DEFINITION OF A "JOINT
VENTURE" IN INFORMATION TECHNOLOGY FOUNDATION
OF THE PHILIPPINES vs. COMELEC x x x WHICH "REQUIRES
A COMMUNITY OF INTEREST IN THE PERFORMANCE OF
THE SUBJECT MATTER."

Filed as it was before contract signing, the petition

understandably did not implead Smartmatic TIM Corporation,
doubtless an indispensable party to these proceedings, an
incident that did not escape Comelec’s notice.37

As a preliminary counterpoint, either or both public and private

respondents question the legal standing or locus standi of
petitioners, noting in this regard that the petition did not even raise
an issue of transcendental importance, let alone a constitutional
question.

As an additional point, respondents also urge the dismissal of the

petition on the ground of prematurity, petitioners having failed to
avail themselves of the otherwise mandatory built-in grievance
mechanism under Sec. 55 in relation to Sec. 58 of RA 9184, also
known as the Government Procurement Reform Act, as shall be
discussed shortly.

PROCEDURAL GROUNDS

The Court is not disposed to dismiss the petition on procedural

grounds advanced by respondents.

Locus Standi and Prematurity

It is true, as postulated, that to have standing, one must, as a rule,

establish having suffered some actual or threatened injury as a
result of the alleged illegal government conduct; that the injury is
fairly traceable to the challenged action; and that the injury is
likely to be redressed by a favorable action.38 The prescription on
standing, however, is a matter of procedure. Hence, it may be
relaxed, as the Court has often relaxed the rule for non-traditional
plaintiffs, like ordinary citizens and taxpayers, when the public
interest so requires, such as when the matter is of transcendental
importance, of overarching significance to society, or of
paramount public interest.39 As we wrote in Chavez v.
PCGG,40 where issues of public importance are presented, there
is no necessity to show that the suitor has experienced or is in
actual danger of suffering direct and personal injury as the
requisite injury is assumed.

Petitioners’ counsel, when queried, hedged on what specific

constitutional proscriptions or concepts had been infringed by the
award of the subject automation project to Smartmatic TIM
Corporation, although he was heard to say that "our objection to
the system is anchored on the Constitution itself a violation [sic] of
secrecy of voting and the sanctity of the ballot."41 Petitioners also
depicted the covering automation contract as constituting an
abdication by the Comelec of its election-related mandate under
the Constitution, which is to enforce and administer all laws
relative to the conduct of elections. Worse still, according to the
petitioners, the abdication, with its anti-dummy dimension, is in
favor of a foreign corporation that will be providing the hardware
and software requirements.42 And when pressed further,
petitioners came out with the observation that, owing in part to the
sheer length of the ballot, the PCOS would not comply with Art. V,
Sec. 2 of the Constitution43 prescribing secrecy of voting and
sanctity of the ballot.44

There is no doubt in our mind, however, about the compelling

significance and the transcending public importance of the one
issue underpinning this petition: the success––and the far-
reaching grim implications of the failure––of the nationwide
automation project that will be implemented via the challenged
automation contract.

The doctrinal formulation may vary, but the bottom line is that the
Court may except a particular case from the operations of its rules
when the demands of justice so require.45 Put a bit differently,
rules of procedure are merely tools designed to facilitate the
attainment of justice.46 Accordingly, technicalities and procedural
barriers should not be allowed to stand in the way, if the ends of
justice would not be subserved by a rigid adherence to the rules
of procedure.47 This postulate on procedural technicalities applies
to matters of locus standi and the presently invoked principle of
hierarchy of courts, which discourages direct resort to the Court if
the desired redress is within the competence of lower courts to
grant. The policy on the hierarchy of courts, which petitioners
indeed failed to observe, is not an iron-clad rule. For indeed the
Court has full discretionary power to take cognizance and assume
jurisdiction of special civil actions for certiorari and mandamus
filed directly with it for exceptionally compelling reasons48 or if
warranted by the nature of the issues clearly and specifically
raised in the petition.49
The exceptions that justify a deviation from the policy on hierarchy
appear to obtain under the premises. The Court will for the nonce
thus turn a blind eye to the judicial structure intended, first and
foremost, to provide an orderly dispensation of justice.

Hierarchy of Courts

At this stage, we shall dispose of another peripheral issue before

plunging into the core substantive issues tendered in this petition.

Respondents contend that petitioners should have availed

themselves of the otherwise mandatory protest mechanism set
forth in Sections 55 and 58 of the procurement law (RA 9184) and
the counterpart provisions found in its Implementing Rules and
Regulations (IRR)-A before seeking judicial remedy. Insofar as
relevant, Sec. 55 of RA 9184 provides that decisions of the bids
and awards committee (BAC) in all stages of procurement may be
protested, via a "verified position paper," to the head of the
procuring agency. On the other hand, the succeeding Sec. 58
states that court action may be resorted to only after the protest
contemplated in Sec. 55 shall have been completed. Petitioners
except. As argued, the requirement to comply with the protest
mechanism, contrary to what may have been suggested in
Infotech, is imposed on the bidders.50

Petitioners’ position is correct. As a matter of common sense, only

a bidder is entitled to receive a notice of the protested BAC
action. Only a losing bidder would be aggrieved by, and ergo
would have the personality to challenge, such action. This
conclusion finds adequate support from the ensuing provisions of
the aforesaid IRR-A:

55.2. The verified position paper shall contain the following

documents:

a) The name of bidder;

 b) The office address of the bidder x x x.

SUBSTANTIVE ISSUES

We now turn to the central issues tendered in the petition which,

in terms of subject matter, revolved around two concerns, viz: (1)
the Joint Venture Agreement (JVA) of Smartmatic and TIM; and
(2) the PCOS machines to be used. Petitioners veritably
introduced another issue during the oral arguments, as amplified
in their memorandum, i.e. the constitutionality and statutory flaw
of the automation contract itself. The petition-in-intervention
confined itself to certain features of the PCOS machines.

The Joint Venture Agreement: Its Existence and Submission

The issue respecting the existence and submission of the TIM-

Smartmatic JVA does not require an extended disquisition, as
repairing to the records would readily provide a satisfactory
answer. We note in fact that the petitioners do not appear to be
earnestly pressing the said issue anymore, as demonstrated by
their counsel’s practically cavalier discussion thereof during the
oral argument. When reminded, for instance, of private
respondents’ insistence on having in fact submitted their JVA
dated April 23, 2009, petitioners’ counsel responded as follows:
"We knew your honor that there was, in fact, a joint venture
agreement filed. However, because of the belated discovery that
[there] were irreconcilable differences, we then made a view that
this joint venture agreement was a sham, at best pro forma
because it did not contain all the required stipulations in order to
evidence unity of interest x x x."51

Indeed, the records belie petitioners’ initial posture that TIM and
Smartmatic, as joint venture partners, did not include in their
submitted eligibility envelope a copy of their JVA. The
SBAC’s Post Qualification Evaluation Report (Eligibility) on TIM-
Smartmatic, on page 10, shows the following entry: "Valid Joint
Venture Agreement, stating among things, that the members are
jointly and severally liable for the whole obligation, in case of joint
venture – Documents verified compliance."52

Contrary to what the petitioners posit, the duly notarized JVA, as

couched, explained the nature and the limited purpose53 of the
joint venture and expressly defined, among other things, the
composition, scope, and the 60-40 capital structure of the
aggroupment.54 The JVA also contains provisions on the
management55 and division of profits.56 Article 357 of the JVA
delineates the respective participations and responsibilities of the
joint venture partners in the automation project.

Given the foregoing perspective, the Court is at a loss to

understand how petitioners can assert that the Smartmatic-TIM
consortium has failed to prove its joint venture existence and/or to
submit evidence as would enable the Comelec to know such
items as who it is dealing with, which between the partners has
control over the decision-making process, the amount of
investment to be contributed by each partner, the parties’ shares
in the profits and like details. Had petitioners only bothered to
undertake the usual due diligence that comes with good judgment
and examined the eligibility envelope of the Smartmatic-TIM joint
venture, they would have discovered that their challenge to and
arguments against the joint venture and its JVA have really no
factual basis.

It may be, as petitioners observed, that the TIM-Smartmatic joint

venture remained an unincorporated aggroupment during the bid-
opening and evaluation stages. It ought to be stressed, however,
that the fact of non-incorporation was without a vitiating effect on
the validity of the tender offers. For the bidding ground rules, as
spelled out primarily in the RFP and the clarificatory bid bulletins,
does not require, for bidding purposes, that there be an
incorporation of the bidding joint ventures or consortiums. In fact,
Bid Bulletin Nos. 19 and 20 recognize the existence and the
acceptability of proposals of unincorporated joint ventures. In
response to a poser, for example, regarding the 60% Filipino
ownership requirement in a joint venture arrangement, the SBAC,
in its Bid Bulletin No. 22, stated: "In an unincorporated joint
venture, determination of the required Filipino participation may
be made by examining the terms and conditions of the [JVA] and
other supporting financial documents submitted by the joint
venture." (Emphasis ours.) Petitioners, to be sure, have not
shown that incorporation is part of the pass/fail criteria used in
determining eligibility.

Petitioners have made much of the Court’s ruling in Information

Technology Foundation of the Philippines [Infotech] v.
Comelec,58 arguing in relation thereto that the partnership of
Smartmatic and TIM does not meet the Court’s definition of a joint
venture which requires "community of interest in the performance
of the subject matter."

Petitioners’ invocation of Infotech is utterly misplaced. Albeit

Infotech and this case are both about modernizing the election
process and bidding joint ventures, the relevant parallelism ends
there. Cast as they are against dissimilar factual milieu, one
cannot plausibly set Infotech side with and contextually apply to
this case the ratio of Infotech. Suffice it to delve on the most
glaring of differences. In Infotech, the winning bid pertained to the
consortium of Mega Pacific, a purported joint venture. Extant
records, however, do not show the formation of such joint venture,
let alone its composition. To borrow from the ponencia of then
Justice, later Chief Justice, Artemio Panganiban, "there is no sign
whatsoever of any [JVA], consortium agreement [or]
memorandum agreement x x x executed among the members of
the purported consortium."59 There was in fine no evidence to
show that the alleged joint venture partners agreed to constitute
themselves into a single entity solidarily responsible for the
entirety of the automation contract. Unlike the purported Mega
Pacific consortium in Infotech, the existence in this case of the
bidding joint venture of Smarmatic and TIM is properly
documented and spread all over the bid documents. And to
stress, TIM and Smartmatic, in their JVA, unequivocally agreed
between themselves to perform their respective undertakings.
And over and beyond their commitments to each other, they
undertook to incorporate, if called for by the bidding results, a JVC
that shall be solidarily liable with them for any actionable breach
of the automation contract.

In Infotech, the Court chastised the Comelec for dealing with an

entity, the full identity of which the poll body knew nothing about.
Taking a cue from this holding, petitioners tag the TIM-Smartmatic
JVA as flawed and as one that would leave the Comelec
"hanging" for the non-inclusion, as members of the joint venture,
of three IT providers. The three referred to are Jarltech
International, Inc. (Jarltech), a subsidiary of Smartmatic that
manufactures the Smartmatic voting machines; Dominion Voting
Systems (Domino), the inventor of said PCOS machines; and
2GO Transportation System Corporation (2GO), the
subcontractor responsible for the distribution of the PCOS
machines throughout the country.

Petitioners’ beef against the TIM-Smartmatic JVA is untenable.

First off, the Comelec knows the very entities whom they are
dealing with, which it can hold solidary liable under the
automation contract, should there be contract violation. Secondly,
there is no requirement under either RA 8436, as amended, or the
RFP, that all the suppliers, manufacturers or distributors involved
in the transaction should be part of the joint venture. On the
contrary, the Instruction to Bidders––as petitioners themselves
admit60––allows the bidder to subcontract portions of the goods or
services under the automation project.61
To digress a bit, petitioners have insisted on the non-existence of
a bona fide JVA between TIM and Smarmatic. Failing to gain
traction for their indefensible posture, they would thrust on the
Court the notion of an invalid joint venture due to the non-
inclusion of more companies in the existing TIM-Smartmatic joint
venture. The irony is not lost on the Court.

This brings us to the twin technical issues tendered herein

bearing on the PCOS machines of Smartmatic.

At its most basic, the petition ascribes grave abuse of discretion

to the Comelec for, among other things, awarding the automation
project in violation of RA 8436, as amended. Following their line,
no pilot test of the PCOS technology Smartmatic-TIM offered has
been undertaken; hence, the Comelec cannot conduct a
nationwide automation of the 2010 polls using the machines thus
offered. Hence, the contract award to Smartmatic-TIM with their
untested PCOS machines violated RA 8436, as amended by RA
9369, which mandates that with respect to the May 2010 elections
and onwards, the system procured must have been piloted in at
least 12 areas referred to in Sec. 6 of RA 8436, as amended.
What is more, petitioners assert, private respondents’ PCOS
machines do not satisfy the minimum system capabilities set by
the same law envisaged to ensure transparent and credible
voting, counting and canvassing of votes. And as earlier narrated,
petitioners would subsequently add the abdication angle in their
bid to nullify the automation contract.

Pilot Testing Not Necessary

Disagreeing, as to be expected, private respondents maintain that

there is nothing in the applicable law requiring, as a pre-requisite
for the 2010 election automation project award, that the prevailing
bidder’s automation system, the PCOS in this case, be subjected
to pilot testing. Comelec echoes its co-respondents’ stance on
pilot testing, with the added observation that nowhere in the
statutory provision relied upon are the words "pilot testing"
used.62 The Senate’s position and its supporting arguments match
those of private respondents.

The respondents’ thesis on pilot testing and the logic holding it

together are well taken. There can be no argument about the
phrase "pilot test" not being found in the law. But does it
necessarily follow that a pilot test is absolutely not contemplated
in the law? We repair to the statutory provision petitioners cited as
requiring a pilot run, referring to Sec. 6 of RA 8436, as amended
by RA 9369, reading as follows:

Sec. 5. Authority to use an Automated Election System.- To carry

out the above stated-policy, the [Comelec], x x x is hereby
authorized to use an automated election system or systems in the
same election in different provinces, whether paper-based or a
direct recording electronic election system as it may deem
appropriate and practical for the process of voting, counting of
votes and canvassing/consolidation and transmittal of results of
electoral exercises: Provided, that for the regular national and
local elections, which shall be held immediately after
the effectivity of this Act, the AES shall be used in at least two
highly urbanized cities and two provinces each in Luzon, Visayas,
and Mindanao to be chosen by the [Comelec]: Provided, further,
That local government units whose officials have been the subject
of administrative charges within sixteen (16) month prior to the
May 14, 2007 elections shall not be chosen. Provided, finally,
That no area shall be chosen without the consent of the
Sanggunian of the local government unit concerned. The term
local government unit as used in this provision shall refer to a
highly urbanized city or province. In succeeding regular national
or local elections, the AES shall be implemented. (Emphasis and
underscoring added.)
RA 9369, which envisages an AES, be it paper-based or direct-
recording electronic, took effect in the second week of February
2007 or thereabout.63 The "regular national and local elections"
referred to after the "effectivity of this Act" can be no other than
the May 2007 regular elections, during which time the AES shall,
as the law is worded, be used in at least two highly urbanized
cities and provinces in Luzon, Visayas and Mindanao. The Court
takes judicial notice that the May 2007 elections did not deploy
AES, evidently due to the mix of time and funding constraints.

To the petitioners, the underscored portion of the aforequoted

Sec. 6 of RA 8436 is the pilot-testing provision that Comelec
failed to observe.

We are not persuaded.

From the practical viewpoint, the pilot testing of the technology in

question in an actual, scheduled electoral exercise under harsh
conditions would have been the ideal norm in computerized
system implementation. The underscored proviso of Sec. 6 of RA
8436 is not, however, an authority for the proposition that the pilot
testing of the PCOS in the 2007 national elections in the areas
thus specified is an absolute must for the machines’ use in the
2010 national/local elections. The Court can concede that said
proviso, with respect to the May 2007 elections, commands the
Comelec to automate in at least 12 defined areas of the country.
But the bottom line is that the required 2007 automation, be it
viewed in the concept of a pilot test or not, is not a mandatory
requirement for the choice of system in, or a prerequisite for, the
full automation of the May 2010 elections.

As may be noted, Sec. 6 of RA 8436 may be broken into three

essential parts, the first partaking of the nature of a general policy
declaration: that Comelec is authorized to automate the entire
elections. The second part states that for the regular national and
local elections that shall be held in May 2007, Comelec shall use
the AES, with an option, however, to undertake automation,
regardless of the technology to be selected, in a limited area or, to
be more precise, in at least two highly urbanized cities and two
provinces each in Luzon, Visayas, and Mindanao to be chosen by
the Comelec. On the other hand, the last part, phrased sans
reference to the May 2007 elections, commands thus: "[I]n
succeeding regular national or local elections, the [automated
election system] shall be implemented." Taken in its proper
context, the last part is indicative of the legislative intent for the
May 2010 electoral exercise to be fully automated, regardless of
whether or not pilot testing was run in the 2007 polls.

To argue that pilot testing is a condition precedent to a full

automation in 2010 would doubtless undermine the purpose of
RA 9369. For, as aptly observed during the oral arguments, if
there was no political exercise in May 2007, the country would
theoretically be barred forever from having full automation.

Sec. 6 of the amended RA 8436, as couched, therefore,

unmistakably conveys the idea of unconditional full automation in
the 2010 elections. A construal making pilot testing of the AES a
prerequisite or condition sine qua non to putting the system in
operation in the 2010 elections is tantamount to reading into said
section something beyond the clear intention of Congress, as
expressed in the provision itself. We reproduce with approval the
following excerpts from the comment of the Senate itself:

The plain wordings of RA 9369 (that amended RA 8436)

commands that the 2010 elections shall be fully automated, and
such full automation is not conditioned on "pilot testing" in the
May 2007 elections. Congress merely gave COMELEC the
flexibility to partially use the AES in some parts of the country for
the May 2007 elections.64

Lest it be overlooked, an AES is not synonymous to and ought not

to be confused with the PCOS. Sec. 2(a) of RA 8436, as
amended, defines an AES as "a system using appropriate
technology which has been demonstrated in the voting, counting,
consolidating, canvassing and transmission of election results,
and other electoral processes." On the other hand, PCOS refers
to a technology wherein an optical ballot scanner, into which
optical scan paper ballots marked by hand by the voter are
inserted to be counted.65 What may reasonably be deduced from
these definitions is that PCOS is merely one of several automated
voting, counting or canvassing technologies coming within the
term AES, implying in turn that the automated election system or
technology that the Comelec shall adopt in future elections need
not, as a matter of mandatory arrangement, be piloted in the
adverted two highly urbanized cities and provinces.

In perspective, what may be taken as mandatory prerequisite for

the full automation of the 2010 regular national/ local elections is
that the system to be procured for that exercise be a technology
tested either here or abroad. The ensuing Section 8 of RA 8436,
as amended, says so.

SEC 12. Procurement of Equipment and Materials.– To achieve

the purpose of this Act, the Commission is authorized to procure,
xxx, by purchase, lease, rent or other forms of acquisition,
supplies, equipment, materials, software, facilities, and other
services, from local or foreign sources xxx. With respect to the
May 10, 2010 elections and succeeding electoral exercises, the
system procured must have demonstrated capability and been
successfully used in prior electoral exercise here or abroad.
Participation in the 2007 pilot exercise shall not be conclusive of
the system’s fitness. (Emphasis supplied).

While the underscored portion makes reference to a "2007 pilot

exercise," what it really exacts is that, for the automation of the
May 2010 and subsequent elections, the PCOS or any AES to be
procured must have demonstrated its capability and success in
either a local or a foreign electoral exercise. And as expressly
declared by the provision, participation in the 2007 electoral
exercise is not a guarantee nor is it conclusive of the system’s
fitness. In this regard, the Court is inclined to agree with private
respondents’ interpretation of the underscored portion in question:
"The provision clearly conveys that the [AES] to be used in the
2010 elections need not have been used in the 2007 elections,
and that the demonstration of its capability need not be in a
previous Philippine election. Demonstration of the success and
capability of the PCOS may be in an electoral exercise in a
foreign jurisdiction."66 As determined by the Comelec, the PCOS
system had been successfully deployed in previous electoral
exercises in foreign countries, such as Ontario, Canada; and New
York, USA,67 albeit Smartmatic was not necessarily the system
provider. But then, RA 9369 does not call for the winning bidder of
the 2010 automation project and the deploying entity/provider in
the foreign electoral exercise to be one and the same entity.
Neither does the law incidentally require that the system be first
used in an archipelagic country or with a topography or a voting
population similar to or approximating that of the Philippines.

At any event, any lingering doubt on the issue of whether or not

full automation of the 2010 regular elections can validly proceed
without a pilot run of the AES should be put to rest with the
enactment in March 2009 of RA 9525,68 in which Congress
appropriated PhP 11.301 billion to automate the 2010 elections,
subject to compliance with the transparency and accuracy
requirements in selecting the relevant technology of the
machines, thus:

Sec. 2. Use of Funds.– x x x Provided, however, That

disbursement of the amounts herein appropriated or any part
thereof shall be authorized only in strict compliance with the
Constitution, the provisions of [RA] No. 9369 and other election
laws incorporated in said Act as to ensure the conduct of a free,
orderly, clean, honest and credible election and shall adopt such
measures that will guaranty transparency and accuracy in the
selection of the relevant technology of the machines to be used
on May 10, 2010 automated national and local elections.
(Emphasis added.)

It may safely be assumed that Congress approved the bill that

eventually became RA 9525, fully aware that the system using the
PCOS machines were not piloted in the 2007 electoral exercise.
The enactment of RA 9525 is to us a compelling indication that it
was never Congress’ intent to make the pilot testing of a particular
automated election system in the 2007 elections a condition
precedent to its use or award of the 2010 Automation Project. The
comment-in-intervention of the Senate says as much.

Further, the highly charged issue of whether or not the 2008

ARMM elections––covering, as NCC observed, three conflict-
ridden island provinces––may be treated as substantial
compliance with the "pilot test" requirement must be answered in
the affirmative. No less than Senator Richard J. Gordon himself,
the author of the law, said that "the system has been tried and
tested in the ARMM elections last year, so we have to proceed
with the total implementation of the law."69

We note, though, the conflicting views of the NCC70 and ITFP71 on

the matter. Suffice it to state at this juncture that the system used
in the 2008 ARMM election exercise bears, as petitioners to an
extent grudgingly admit, 72 a similarity with the PCOS. The
following, lifted from the Comelec’s comment, is to us a fair
description of how the two systems (PCOS and CCOS) work and
where the difference lies:

xxx the elections in the [ARMM] utilized the Counting Center

Optical Scan (CCOS), a system which uses the Optical Mark
Reader (OMR), the same technology as the PCOS.
Under the CCOS, the voters cast their votes by shading or
marking the circles in the paper ballots which corresponded to the
names of their chosen candidates [like in PCOS]. Thereafter, the
ballot boxes were brought to the counting centers where they
were scanned, counted and canvassed.

xxx Under the PCOS, the counting, consolidation and canvassing

of the votes are done at the precinct level. The election results at
the precincts are then electronically transmitted to the next level,
and so on. xxx PCOS dispenses with the physical transportation
of ballot boxes from the precincts to the counting centers.73

Moreover, it has been proposed that a partial automation be

implemented for the May 2010 elections in accordance with
Section 5 of RA 8436, as amended by RA 9369 instead of full
automation. The Court cannot agree as such proposition has no
basis in law. Section 5, as worded, does not allow for partial
automation. In fact, Section 5 clearly states that "the AES shall be
implemented nationwide."74 It behooves this Court to follow the
letter and intent of the law for full automation in the May 2010
elections.

PCOS Meets Minimum Capabilities Standards

As another ground for the nullification of the automation contract,

petitioners posit the view that the PCOS machines do not satisfy
the minimum system capabilities prescribed by RA 8436, as
amended. To a specific point, they suggest that the PCOS system
offered and accepted lacks the features that would assure
accuracy in the recording and reading of votes, as well as in the
tabulation, consolidation/canvassing, electronic transmission,
storage results and accurate ballot counting.75 In this particular
regard, petitioners allege that, based on Smartmatic’s website,
the PCOS has a margin of error of from 2% to 10%, way beyond
that of the required 99.99% accuracy in the counting of votes.76
The minimum system capabilities provision cited is Sec. 7 of RA
8436, as amended, and the missing features referred to by
petitioners are pars. (b) and (j). In full, Sec. 7 of RA 8436, as
amended, reads:

SEC. 6. Minimum System Capabilities. - The automated election

system must at least have the following functional capabilities:

(a) Adequate security against unauthorized access;

(b) Accuracy in recording and reading of votes as well as in

the tabulation, consolidation/canvassing, electronic
transmission, and storage of results;

(c) Error recovery in case of non-catastrophic failure of

device;

(d) System integrity which ensures physical stability and

functioning of the vote recording and counting process;

(e) Provision for voter verified paper audit trail;

(f) System auditability which provides supporting

documentation for verifying the correctness of reported
election results;

(g) An election management system for preparing ballots

and programs for use in the casting and counting of votes
and to consolidate, report and display election result in the
shortest time possible;

(h) Accessibility to illiterates and disabled voters;

(i) Vote tabulating program for election, referendum or

plebiscite;

(j) Accurate ballot counters;

 (k) Data retention provision;

(l) Provide for the safekeeping, storing and archiving of

physical or paper resource used in the election process;

(m) Utilize or generate official ballots as herein defined;

(a) Provide the voter a system of verification to find out

whether or not the machine has registered his choice; and

(o) Configure access control for sensitive system data and

function.

In the procurement of this system, the Commission shall develop

and adopt an evaluation system to ascertain that the above
minimum system capabilities are met. The evaluation system
shall be developed with the assistance of an advisory council.

From the records before us, the Court is fairly satisfied that the
Comelec has adopted a rigid technical evaluation mechanism, a
set of 26-item/check list criteria, as will be enumerated shortly, to
ensure compliance with the above minimum systems capabilities.

The SBAC Memorandum77 of June 03, 2009, as approved by

Comelec Res. 8608,78 categorically stated that the SBAC-TWG
submitted its report that TIM/Smartmatic’s proposed systems and
machines PASSED all the end-to-end demo tests using the
aforementioned 26-item criteria, inclusive of the accuracy rating
test of at least 99.955%. As appearing in the SBAC-TWG report,
the corresponding answers/remarks to each of the 26 individual
items are as herein indicated:79

ITEM REQUIREMENT REMARK/DESCRIPTION

1 Does the system allow Yes. The proposed PCOS
manual feeding of a ballot machine accepted the test
 into the PCOS machine?
2 Does the system scan a
ballot sheet at the speed
of at least 2.75 inches per
second?
3 Is the system able to
capture and store in an
encrypted format the
digital images of the ballot
for at least 2,000 ballot
sides (1,000 ballots, with
back to back printing)?
4 Is the system a fully
integrated single device
as described in item no. 4
of Component 1-B?
5 Does the system have a
scanning resolution of at
ballots which were
manually fed one at a time.
Yes. A 30-inch ballot was
used in this test. Scanning
the 30-inch ballot took 2.7
seconds, which translated
to 11.11inches per second.
Yes the system captured
the images of the 1,000
ballots in encrypted format.
Each of the 1,000 images
files contained the images
of the front and back sides
of the ballot, totaling to
2,000 ballot side.
To verify the captured
ballot images, decrypted
copies of the encrypted
files were also provided.
The same were found to
be digitized
representations of the
ballots cast.
Yes. The proposed PCOS
is a fully integrated single
device, with built-in printer
and built-in data
communications ports
(Ethernet and USB).
Yes. A portion of a filled up
marked oval was blown up
 least 200 dpi? using image editor
software to reveal the
number of dots per inch.
The sample image showed
200 dpi.

File properties of the

decrypted image file also
revealed 200 dpi.
6 Does the system scan in Yes. 30 shades of gray
grayscale? were scanned in the test
PCOS machine, 20 of
which were required,
exceeding the required 4-
bit/16 levels of gray as
specified in the Bid Bulletin
No. 19.
7 Does the system require Yes. The system required
authorization and the use of a security key
authentication of all with different sets of
operators, such as, but passwords/PINs for
not limited to, usernames Administrator and Operator
and passwords, with users.
multiple user access
levels?
8 Does the system have an Yes. The PCOS machine
electronic display? makes use of an LCD
display to show
information:

 if a ballot may be
inserted into the machine;

9 Does the system employ
error handling procedures,
including, but not limited
to, the use of error
prompts and other related
instructions?
10 Does the system count
the voter’s vote as marked
on the ballot with an
accuracy rating of at least
99.995%?
 if a ballot is being
processed; if a ballot is
being rejected;
 on other instructions
and information to the
voter/operator.
Yes. The PCOS showed
error messages on its
screen whenever a ballot
is rejected by the machine
and gives instructions to
the voter on what to do
next, or when there was a
ballot jam error.
Yes. The two rounds of
tests were conducted for
this test using only valid
marks/shades on the
ballots. 20,000 marks were
required to complete this
test, with only one (1)
allowable reading error.
625 ballots with 32 marks
each were used for this
test. During the
comparison of the PCOS-
generated results with the
manually
prepared/predetermined
results, it was found out
that there were seven (7)
 marks which were
inadvertently missed out
during ballot preparation
by the TWG. Although the
PCOS-generated results
turned out to be 100%
accurate, the 20,000-mark
was not met thereby
requiring the test to be
repeated.

To prepare for other

possible missed out
marks,650 ballots with
(20,800 marks) were used
for the next round of test,
which also yielded 100%
accuracy.
11 Does the system detect Yes. This test made use of
and reject fake or one (1) photocopied ballot
spurious, and previously and one (1) "re-created"
scanned ballots? ballot. Both were rejected
by the PCOS.
12 Does the system scan Yes. Four (4) ballots with
both sides of a ballot and valid marks were fed into
in any orientation in one the PCOS machine in the
pass? four (4) portrait orientations
specified in Bid Bulletin
No. 4 (either back or front,
upside down or right side
up), and all were
accurately captured.
13 Does the system have
necessary safeguards to
determine the authenticity
of a ballot, such as, but
not limited to, the use of
bar codes, holograms,
color shifting ink, micro
printing, to be provided on
the ballot, which can be
recognized by the
system?
14 Are the names of the
candidates pre-printed on
the ballot?
Yes. The system was able
to recognize if the security
features on the ballot are
"missing".
Aside from the test on the
fake or spurious ballots
(Item No. 11), three (3) test
ballots with tampered bar
codes and timing marks
were used and were all
rejected by the PCOS
machine.
The photocopied ballot in
the test for Item No. 11
was not able to replicate
the UV ink pattern on top
portion of the ballot
causing the rejection of the
ballot.
Yes. The Two sample test
ballots of different lengths
were provided: one (1) was
14 inches long while the
other was 30 inches long.
Both were 8.5 inches wide.
The first showed 108 pre-
printed candidate names
for the fourteen (14)
contests/positions,
including two (2) survey
questions on gender and
 age group, and a plebiscite
question.

The other showed 609 pre-

printed candidate names,
also for fourteen (14)
positions including three
(3) survey questions.
15 Does each side of the Yes. The 30-inch ballot,
ballot sheet accommodate which was used to test
at least 300 names of Item No. 2, contained 309
candidates with a names for the national
minimum font size of 10, positions and 300 names
in addition to other for local positions. The
mandatory information total pre-printed names on
required by law? the ballot totaled 609.

This type of test ballot was

also used for test voting by
the public, including
members of the media.

Arial Narrow, font size 10,

was used in the printing of
the candidate names.
16 Does the system Yes. The ballots used for
recognize full shade the accuracy test (Item No.
marks on the appropriate 10), which made use of full
space on the ballot shade marks, were also
opposite the name of the used in this test and were
candidate to be voted for? accurately recognized by
the PCOS machine.
17 Does the system Yes. Four (4) test ballots
recognize partial shade were used with one (1)
marks on the appropriate mark each per ballot
space on the ballot showing the following
opposite the name of the pencil marks:
candidate to be voted for?
 top half shade;

 bottom half shade;

 left half shade; and

 right half shade

These partial shade marks

were all recognized by the
PCOS machine
18 Does the system Yes. One (1) test ballot
recognize check (ü)marks with one check (ü) mark,
on the appropriate space using a pencil, was used
on the ballot opposite the for this test.
name of the candidate to
be voted for? The mark was recognized
successfully.
19 Does the system Yes. One (1) test ballot
recognize x marks on the with one x mark, using a
appropriate space on the pencil, was used for this
ballot opposite the name test.
of the candidate to be
voted for? The mark was recognized
successfully.
20 Does the system Yes. The 1000 ballots
recognize both pencil and used in the accuracy test
ink marks on the ballot? (Item No. 10) were marked
 using the proposed
marking pen by the bidder.

A separate ballot with one

(1) pencil mark was also
tested. This mark was also
recognized by the PCOS
machine. Moreover, the
tests for Items No. 17, 18
and 19 were made using
pencil marks on the
ballots.
21 In a simulation of a Yes. Five (5) ballots were
system shut down, does used in this test. The
the system have error power cord was pulled
recovery features? from the PCOS while the
3rd ballot was in the
middle of the scanning
procedure, such that it was
left "hanging" in the ballot
reader.

After resumption of regular

power supply, the PCOS
machine was able to
restart successfully with
notification to the operator
that there were two (2)
ballots already cast in the
machine. The "hanging"
3rd ballot was returned to
the operator and was able
to be re-fed into the PCOS
machine. The marks on all

22 Does the system have
transmission and
consolidation/canvassing
capabilities?
23 Does the system generate
a backup copy of the
generated reports, in a
removable data storage
device?
24 Does the system have
alternative power sources,
which will enable it to fully
operate for at least 12
hours?
five (5) were all accurately
recognized.
Yes. The PCOS was able
to transmit to the CCS
during the end-to-end
demonstration using
GLOBE prepaid Internet
kit.
Yes. The PCOS saves a
backup copy of the ERs,
ballot images, statistical
report and audit log into a
Compact Flash (CF) Card.
Yes. A 12 bolt 18AH
battery lead acid was used
in this test. The initial test
had to be repeated due to
a short circuit, after seven
(7) hours from start-up
without ballot scanning.
This was explained by
TIM-Smartmatic to be
caused by non-compatible
wiring of the battery to the
PCOS. A smaller wire than
what is required was
inadvertently used, likening
the situation to incorrect
wiring of a car battery. Two
(2) COMELEC electricians
were called to confirm TIM-
Smartmatic’s explanation.
 The PCOS machine was
connected to regular
power and started
successfully. The following
day, the "re-test" was
completed in 12 hours and
40 minutes xxx 984 ballots
were fed into the machine.
The ER, as generated by
the PCOS was compared
with predetermined result,
showed 100% accuracy.
25 Is the system capable of Yes. The PCOS prints
generating and printing reports via its built-in
reports? printer which includes:

1. Initialization Report; 2.
Election Returns (ER); 3.
PCOS Statistical Report; 4.
Audit Log.
26 Did the bidder Yes. An end-to-end
successfully demonstrate demonstration of all
EMS, voting counting, proposed systems was
consolidation/canvassing presented covering:
and transmission? importing of election data
into the EMS; creation of
election configuration data
for the PCOS and the CCS
using EMS; creation of
ballot faces using EMS;
configuring the PCOS and
the CCS using the EMS-
generated election
 configuration file;
initialization, operation,
generation of reports and
backup using the PCOS;
electronic transmission of
results to the: [1] from the
PCOS to city/municipal
CCS and the central
server. [2] from the
city/municipal CCS to the
provincial CCS. [3] from
the provincial CCS to the
national CCS; receipt and
canvass of transmitted
results: [1] by the
city/municipal CCS from
the PCOS. [2] by the
provincial CCS from the
city/municipal CCS. [3] by
the national CCS from the
provincial CCS; receipt of
the transmittal results by
the central server from the
PCOS.

Given the foregoing and absent empirical evidence to the

contrary, the Court, presuming regularity in the performance of
regular duties, takes the demo-testing thus conducted by SBAC-
TWG as a reflection of the capability of the PCOS machines,
although the tests, as Comelec admits,80 were done literally in
the Palacio del Governador building, where a room therein
simulated a town, the adjoining room a city, etc. Perusing the
RFP, however, the real worth of the PCOS system and the
machines will of course come after they shall have been
subjected to the gamut of acceptance tests expressly specified in
the RFP, namely, the lab test, field test, mock election test,
transmission test and, lastly, the final test and sealing procedure
of all PCOS and CCS units using the actual Election Day machine
configuration.811avvph!1

Apropos the counting-accuracy feature of the PCOS machines,

petitioners no less impliedly admit that the web page they
appended to their petition, showing a 2% to 10% failing rate, is no
longer current.82 And if they bothered to examine the current
website of Smartmatic specifically dealing with its SAES 1800, the
PCOS system it offered, they would have readily seen that the
advertised accuracy rating is over "99.99999%."83 Moreover, a
careful scrutiny of the old webpage of Smarmatic reveals that the
2% to 10% failure rate applied to "optical scanners" and not to
SAES. Yet the same page discloses that the SAES has "100%"
accuracy. Clearly, the alleged 2% to 10% failing rate is now
irrelevant and the Court need not belabor this and the equally
irrelevant estoppel principle petitioners impose on us.

Intervenor Cuadra’s concern relates to the auditability of the

election results. In this regard, it may suffice to point out that
PCOS, being a paper-based technology, affords audit since the
voter would be able, if need be, to verify if the machine had
scanned, recorded and counted his vote properly. Moreover, it
should also be noted that the PCOS machine contains an LCD
screen, one that can be programmed or configured to display to
the voter his votes as read by the machine. 84

No Abdication of Comelec’s Mandate and Responsibilty

As a final main point, petitioners would have the Comelec-

Smartmatic-TIM Corporation automation contract nullified since,
in violation of the Constitution, it constitutes a wholesale
abdication of the poll body’s constitutional mandate for election
law enforcement. On top of this perceived aberration, the
mechanism of the PCOS machines would infringe the
constitutional right of the people to the secrecy of the ballot which,
according to the petitioners, is provided in Sec. 2, Art. V of the
Constitution.85

The above contention is not well taken.

The first function of the Comelec under the Constitution86––and

the Omnibus Election Code for that matter––relates to the
enforcement and administration of all laws and regulations
relating to the conduct of elections to public office to ensure a
free, orderly and honest electoral exercise. And how did
petitioners come to their conclusion about their abdication theory?
By acceding to Art. 3.3 of the automation contract, Comelec
relinquished, so petitioners claim, supervision and control of the
system to be used for the automated elections. To a more specific
point, the loss of control, as may be deduced from the ensuing
exchanges, arose from the fact that Comelec would not be
holding possession of what in IT jargon are the public and private
keys pair.

CHIEF JUSTICE: Well, more specifically are you saying that the
main course of this lost of control is the fact that SMARTMATIC
holds the public and private keys to the sanctity of this system?

ATTY. ROQUE: Yes, Your Honor, as well as the fact that they
control the program embedded in the key cost that will read their
votes by which the electorate may verify that their votes were
counted.

CHIEF JUSTICE: You are saying that SMARTMATIC and not its
partner TIM who hold these public and private keys?

ATTY. ROQUE: Yes, Your Honor.

The Court is not convinced. There is to us nothing in Art 3.3 of the
automation contract, even if read separately from other
stipulations and the provisions of the bid documents and the
Constitution itself, to support the simplistic conclusion of
abdication of control pressed on the Court. Insofar as pertinent,
Art 3.3 reads:

3.3 The PROVIDER shall be liable for all its obligations under this
Project and the performance of portions thereof by other persons
or entities not parties to this Contract shall not relieve the
PROVIDER of said obligations and concomitant liabilities.

SMARTMATIC, as the joint venture partner with the greater

track record in automated elections, shall be in charge of the
technical aspects of the counting and canvassing software
and hardware, including transmission configuration and system
integration. SMARTMATIC shall also be primarily responsible for
preventing and troubleshooting technical problems that may arise
during the elections. (Emphasis added.)

The proviso designating Smartmatic as the joint venture partner in

charge of the technical aspect of the counting and canvassing
wares does not to us translate, without more, to ceding control of
the electoral process to Smartmatic. It bears to stress that the
aforesaid designation of Smartmatic was not plucked from thin air,
as it was in fact an eligibility requirement imposed, should the
bidder be a joint venture. Part 5, par. 5.4 (e) of the Instruction to
Bidders on the subject Eligible Bidders, whence the second
paragraph of aforequoted Art. 3.3 came from, reads:

5.4 A JV of two or more firms as partners shall comply with the

following requirements.

xxxx
(e) The JV member with a greater track record in automated
elections, shall be in-charge of the technical aspects of the
counting and canvassing software and hardware, including
transmission configuration and system integration

And lest it be overlooked, the RFP, which forms an integral part of

the automation contract,87 has put all prospective bidders on
notice of Comelec’s intent to automate and to accept bids that
would meet several needs, among which is "a complete solutions
provider… which can provide… effective overall nationwide
project management service… under COMELEC supervision and
control, to ensure effective and successful implementation of the
[automation] Project."88 Complementing this RFP advisory as to
control of the election process is Art. 6.7 of the automation
contract, providing:

6.7 Subject to the provisions of the General Instructions to be

issued by the Commission En Banc, the entire processes of
voting, counting, transmission, consolidation and canvassing of
votes shall be conducted by COMELEC’s personnel and officials,
and their performance, completion and final results according to
specifications and within the specified periods shall be the shared
responsibility of COMELEC and the PROVIDER. (Emphasis
added.)

But not one to let an opportunity to score points pass by,

petitioners rhetorically ask: "Where does Public Respondent
Comelec intend to get this large number of professionals, many of
whom are already gainfully employed abroad?"89 The Comelec,
citing Sec. 390 and Sec. 5 of RA 8436,91 as amended, aptly
answered this poser in the following wise:

x x x [P]ublic respondent COMELEC, in the implementation of the

automated project, will forge partnerships with various entities in
different fields to bring about the success of the 2010 automated
elections.
Public respondent COMELEC will partner with Smartmatic TIM
Corporation for the training and hiring of the IT personnel as well
as for the massive voter-education campaign. There is in fact a
budget allocation x x x for these undertakings. x x x

As regards the requirement of RA 9369 that IT-capable personnel

shall be deputized as a member of the BEI and that another IT-
capable person shall assist the BOC, public respondent
COMELEC shall partner with DOST and other agencies and
instrumentalities of the government.

In not so many words during the oral arguments and in their

respective Memoranda, public and private respondents
categorically rejected outright allegations of abdication by the
Comelec of its constitutional duty. The petitioners, to stress, are
strangers to the automation contract. Not one participated in the
bidding conference or the bidding proper or even perhaps
examined the bidding documents and, therefore, none really
knows the real intention of the parties. As case law tells us, the
court has to ferret out the real intent of the parties. What is fairly
clear in this case, however, is that petitioners who are not even
privy to the bidding process foist upon the Court their own view on
the stipulations of the automation contract and present to the
Court what they think are the parties’ true intention. It is a study of
outsiders appearing to know more than the parties do, but actually
speculating what the parties intended. The following is self-
explanatory:

CHIEF JUSTICE: Why did you say that it did not, did you talk with
the Chairman and Commissioners of COMELEC that they failed
to perform this duty, they did not exercise this power of control?

ATTY. ROQUE : Your Honor, I based it on the fact that it was the
COMELEC in fact that entered into this contract ….
CHIEF JUSTICE : Yes, but my question is – did you confront the
COMELEC officials that they forfeited their power of control in
over our election process?

ATTY. ROQUE : We did not confront, your Honor. We impugned

their acts, Your Honor.92

Just as they do on the issue of control over the electoral process,

petitioners also anchor on speculative reasoning their claim that
Smartmatic has possession and control over the public and
private keys pair that will operate the PCOS machines. Consider:
Petitioners’ counsel was at the start cocksure about Smartmatic’s
control of these keys and, with its control, of the electoral
process.93

Several questions later, his answers had a qualifying tone:

JUSTICE NACHURA: And can COMELEC under the contract not

demand that it have access, that it be given access to and in fact
generate its own keys independently with SMARTMATIC so that it
would be COMELEC and not SMARTMATIC that would have full
control of the technology insofar as the keys are concerned xxx?

ATTY. ROQUE: I do not know if COMELEC will be in a position to

generate these keys, xxx. 94

And subsequently, the speculative nature of petitioners’ position

as to who would have possession and control of the keys became
apparent.

CHIEF JUSTICE: Yes, but did you check with the COMELEC who
will be holding these two keys x x x did you check with COMELEC
whether this system is correct?

ATTY.ROQUE: We have not had occasion to do so, x x x Your

Honor.
xxxx

CHIEF JUSTICE: Why do you make that poor conclusion against

the COMELEC x x x May not the COMELEC hire the services of
experts in order for the institution to be able to discharge its
constitutional functions?

ATTY. ROQUE: That is true, but x x x there is too much reliance

on individuals who do not have the same kind of accountability as
public officers x x x

CHIEF JUSTICE: Are you saying that the COMELEC did not
consult with available I.T. experts in the country before it made
the bidding rules before it conducted the bidding and make the
other policy judgments?

ATTY. ROQUE: Your Honor, what I am sure is that they did not
confer with the I.T. Foundation x x x.

CHIEF JUSTICE: But is that foundation the only expert, does it

have a monopoly of knowledge?95

The Court, to be sure, recognizes the importance of the vote-

security issue revolving around the issuance of the public and
private keys pair to the Board of Election Inspectors, including the
digital signatures. The NCC comment on the matter deserves
mention, appearing to hew as it does to what appear on the
records. The NCC wrote:

The RFP/TOR used in the recent bidding for the AES to be used
in the 2010 elections specifically mandated the use of public key
cryptography. However, it was left to the discretion of the bidder
to propose an acceptable manner of utilization for
approval/acceptance of the Comelec. Nowhere in the RFP/TOR
was it indicated that COMELEC would delegate to the winning
bidder the full discretion, supervision and control over the manner
of PKI [Public Key Infrastructure] utilization.

With the view we take of the automation contract, the role of

Smartmatic TIM Corporation is basically to supply the goods
necessary for the automation project, such as but not limited to
the PCOS machines, PCs, electronic transmission devices and
related equipment, both hardware and software, and the technical
services pertaining to their operation. As lessees of the goods and
the back-up equipment, the corporation and its operators would
provide assistance with respect to the machines to be used by the
Comelec which, at the end of the day, will be conducting the
election thru its personnel and whoever it deputizes.

And if only to emphasize a point, Comelec’s contract is with

Smartmatic TIM Corporation of which Smartmatic is a 40%
minority owner, per the JVA of TIM and Smartmatic and the
Articles of Incorporation of Smartmatic TIM Corporation.
Accordingly, any decision on the part or on behalf of Smartmatic
will not be binding on Comelec. As a necessary corollary, the
board room voting arrangement that Smartmatic and TIM may
have agreed upon as joint venture partners, inclusive of the veto
vote that one may have power over the other, should really be the
least concern of the Comelec.

Parenthetically, the contention that the PCOS would infringe on

the secrecy and sanctity of the ballot because, as petitioners
would put it, the voter would be confronted with a "three feet" long
ballot,96 does not commend itself for concurrence. Surely, the
Comelec can put up such infrastructure as to insure that the voter
can write his preference in relative privacy. And as demonstrated
during the oral arguments, the voter himself will personally feed
the ballot into the machine. A voter, if so minded to preserve the
secrecy of his ballot, will always devise a way to do so. By the
same token, one with least regard for secrecy will likewise have a
way to make his vote known.

During the oral arguments, the notion of a possible violation of the

Anti-Dummy Law cropped up, given the RFP requirement of a
joint venture bidder to be at least be 60% Filipino. On the other
hand, the winning bidder, TIM-Smartmatic joint venture, has
Smartmatic, a foreign corporation, owning 40% of the equity in,
first, the joint venture partnership, and then in Smartmatic TIM
Corporation.

The Anti-Dummy Law97 pertinently states:

Section 1. Penalty. In all cases in which any constitutional or legal

provision requires Philippine or any other specific citizenship as a
requisite for the exercise or enjoyment of a right, franchise or
privilege, any citizen of the Philippines or of any other specific
country who allows his name or citizenship to be used for the
purpose of evading such provision, and any alien or foreigner
profiting thereby, shall be punished by imprisonment xxx and by a
fine xxx.

SECTION 2. Simulation of minimum capital stock – In all cases in

which a constitutional or legal provision requires that a
corporation or association may exercise or enjoy a right, franchise
or privilege, not less than a certain per centum of its capital must
be owned by citizens of the Philippines or any other specific
country, it shall be unlawful to falsely simulate the existence of
such minimum stock or capital as owned by such citizen for the
purpose of evading such provision. xxx

SECTION 2-A. Unlawful use, Exploitation or Enjoyment. Any

person, corporation, or association which, having in its name or
under its control, a right, franchise, privilege, property or business,
the exercise or enjoyment of which is expressly reserved by the
Constitution or the laws to citizens of the Philippines or of any
other specific country, or to corporations or associations at least
sixty per centum of the capital of which is owned by such citizens,
permits or allows the use, exploitation or enjoyment thereof by a
person, corporation, or association not possessing the requisites
prescribed by the Constitution or the laws of the Philippines; or
leases, or in any other way, transfers or conveys said right,
franchise, privilege, property or business to a person, corporation
or association not otherwise qualified under the Constitution xxx
shall be punished by imprisonment xxx (Emphasis added.)

The Anti-Dummy Law has been enacted to limit the enjoyment of

certain economic activities to Filipino citizens or corporations. For
liability for violation of the law to attach, it must be established that
there is a law limiting or reserving the enjoyment or exercise of a
right, franchise, privilege, or business to citizens of the Philippines
or to corporations or associations at least 60 per centum of the
capital of which is owned by such citizens. In the case at bench,
the Court is not aware of any constitutional or statutory provision
classifying as a nationalized activity the lease or provision of
goods and technical services for the automation of an election. In
fact, Sec. 8 of RA 8436, as amended, vests the Comelec with
specific authority to acquire AES from foreign sources, thus:

SEC 12. Procurement of Equipment and Materials.– To achieve

the purpose of this Act, the Commission is authorized to procure,
xxx, by purchase, lease, rent or other forms of acquisition,
supplies, equipment, materials, software, facilities, and other
services, from local or foreign sources xxx. (Emphasis added.)

Petitioners cite Executive Order No. (EO) 584,98 Series of 2006,

purportedly limiting "contracts for the supply of materials, goods
and commodities to government-owned or controlled corporation,
company, agency or municipal corporation" to corporations that
are 60% Filipino. We do not quite see the governing relevance of
EO 584. For let alone the fact that RA 9369 is, in relation to EO
584, a subsequent enactment and, therefore, enjoys primacy over
the executive issuance, the Comelec does fall under the category
of a government-owned and controlled corporation, an agency or
a municipal corporation contemplated in the executive order.

A view has been advanced regarding the susceptibility of the AES

to hacking, just like the voting machines used in certain precincts
in Florida, USA in the Gore-Bush presidential contests. However,
an analysis of post-election reports on the voting system thus
used in the US during the period material and the AES to be
utilized in the 2010 automation project seems to suggest stark
differences between the two systems. The first relates to the
Source Code, defined in RA 9369 as "human readable
instructions that define what the computer equipment will
do."99 The Source Code for the 2010 AES shall be available and
opened for review by political parties, candidates and the citizens’
arms or their representatives;100 whereas in the US precincts
aforementioned, the Source Code was alleged to have been kept
secret by the machine manufacture company, thus keeping the
American public in the dark as to how exactly the machines
counted their votes. And secondly, in the AES, the PCOS
machines found in the precincts will also be the same device that
would tabulate and canvass the votes; whereas in the US, the
machines in the precincts did not count the votes. Instead the
votes cast appeared to have been stored in a memory card that
was brought to a counting center at the end of the day. As a
result, the hacking and cheating may have possibly occurred at
the counting center.

Additionally, with the AES, the possibility of system hacking is

very slim. The PCOS machines are only online when they
transmit the results, which would only take around one to two
minutes. In order to hack the system during this tiny span of
vulnerability, a super computer would be required. Noteworthy
also is the fact that the memory card to be used during the
elections is encrypted and read-only––meaning no illicit program
can be executed or introduced into the memory card.

Therefore, even though the AES has its flaws, Comelec and
Smartmatic have seen to it that the system is well-protected with
sufficient security measures in order to ensure honest elections.

And as indicated earlier, the joint venture provider has formulated

and put in place a continuity and back-up plans that would
address the understandable apprehension of a failure of elections
in case the machines falter during the actual election. This over-
all fall-back strategy includes the provisions for 2,000 spare
PCOS machines on top of the 80,000 units assigned to an equal
number precincts throughout the country. The continuity and
back-up plans seek to address the following eventualities: (1) The
PCOS fails to scan ballots; (2) The PCOS scans the ballots, but
fails to print election returns (ERs); and/or (3) The PCOS prints
but fails to transmit the ERs. In the event item #1 occurs, a spare
PCOS, if available, will be brought in or, if not available, the
PCOS of another precinct (PCOS 2 for clarity), after observing
certain defined requirements,101 shall be used. Should all the
PCOS machines in the entire municipality/city fail, manual
counting of the paper ballots and the manual accomplishment of
ERs shall be resorted to in accordance with Comelec
promulgated rules on appreciation of automated ballots.102 In the
event item #2 occurs where the PCOS machines fail to print ERs,
the use of spare PCOS and the transfer of PCOS-2 shall be
effected. Manual counting of ERs shall be resorted to also if all
PCOS fails in the entire municipality. And should eventuality #3
transpire, the following back-up options, among others, may be
availed of: bringing PCOS-1 to the nearest precinct or polling
center which has a functioning transmission facility; inserting
transmission cable of functioning transmission line to PCOS-1
and transmitting stored data from PCOS-1 using functioning
transmission facility.
The disruption of the election process due to machine breakdown
or malfunction may be limited to a precinct only or could affect an
entire municipal/city. The worst case scenario of course would be
the wholesale breakdown of the 82,000 PCOS machines.
Nonetheless, even in this most extreme case, failure of all the
machines would not necessarily translate into failure of elections.
Manual count tabulation and transmission, as earlier stated, can
be done, PCOS being a paper-ballot technology. If the machine
fails for whatever reason, the paper ballots would still be there for
the hand counting of the votes, manual tabulation and
transmission of the ERs. Failure of elections consequent to voting
machines failure would, in fine, be a very remote possibility.

A final consideration.

The first step is always difficult. Hardly anything works, let alone
ends up perfectly the first time around. As has often been said, if
one looks hard enough, he will in all likelihood find a glitch in any
new system. It is no wonder some IT specialists and practitioners
have considered the PCOS as unsafe, not the most appropriate
technology for Philippine elections, and "easily hackable," even.
And the worst fear expressed is that disaster is just waiting to
happen, that PCOS would not work on election day.

Congress has chosen the May 2010 elections to be the maiden

run for full automation. And judging from what the Court has
heard and read in the course of these proceedings, the choice of
PCOS by Comelec was not a spur-of-moment affair, but the
product of honest-to-goodness studies, consultations with CAC,
and lessons learned from the ARMM 2008 automated elections.
With the backing of Congress by way of budgetary support, the
poll body has taken this historic, if not ambitious, first step. It
started with the preparation of the RFP/TOR, with a list of
voluminous annexes embodying in specific detail the bidding rules
and expectations from the bidders. And after a hotly contested
and, by most accounts, a highly transparent public bidding
exercise, the joint venture of a Filipino and foreign corporation
won and, after its machine hurdled the end-to-end demonstration
test, was eventually awarded the contract to undertake the
automation project. Not one of the losing or disqualified bidders
questioned, at least not before the courts, the bona fides of the
bidding procedures and the outcome of the bidding itself.

Assayed against the provisions of the Constitution, the enabling

automation law, RA 8436, as amended by RA 9369, the RFP and
even the Anti-Dummy Law, which petitioners invoked as an
afterthought, the Court finds the project award to have complied
with legal prescriptions, and the terms and conditions of the
corresponding automation contract in question to be valid. No
grave abuse of discretion, therefore, can be laid on the doorsteps
of respondent Comelec. And surely, the winning joint venture
should not be faulted for having a foreign company as partner.

The Comelec is an independent constitutional body with a distinct

and pivotal role in our scheme of government. In the discharge of
its awesome functions as overseer of fair elections, administrator
and lead implementor of laws relative to the conduct of elections,
it should not be stymied with restrictions that would perhaps be
justified in the case of an organization of lesser responsibility.103 It
should be afforded ample elbow room and enough wherewithal in
devising means and initiatives that would enable it to accomplish
the great objective for which it was created––to promote free,
orderly, honest and peaceful elections. This is as it should be for,
too often, Comelec has to make decisions under difficult
conditions to address unforeseen events to preserve the integrity
of the election and in the process the voice of the people. Thus, in
the past, the Court has steered away from interfering with the
Comelec’s exercise of its power which, by law and by the nature
of its office properly pertain to it. Absent, therefore, a clear
showing of grave abuse of discretion on Comelec’s part, as here,
the Court should refrain from utilizing the corrective hand
of certiorari to review, let alone nullify, the acts of that body. This
gem, while not on all fours with, is lifted from, the Court’s holding
in an old but oft-cited case:

x x x We may not agree fully with [the Comelec’s] choice of

means, but unless these are clearly illegal or constitute gross
abuse of discretion, this court should not interfere. Politics is a
practical matter, and political questions must be dealt with
realistically––not from the standpoint of pure theory [or
speculation]. x x x

xxxx

There are no ready-made formulas for solving public problems.

Time and experience are necessary to evolve patterns that will
serve the ends of good government. In the matter of the
administration of the laws relative to the conduct of elections, x x
x we must not by any excessive zeal take away from the
[Comelec] the initiative which by constitutional and legal
mandates properly belongs to it. Due regard to the independent
character of the Commission x x x requires that the power of this
court to review the acts of that body should, as a general
proposition, be used sparingly, but firmly in appropriate cases.104 x
xx

The Court, however, will not indulge in the presumption that

nothing would go wrong, that a successful automation election
unmarred by fraud, violence, and like irregularities would be the
order of the moment on May 10, 2010. Neither will it guarantee,
as it cannot guarantee, the effectiveness of the voting machines
and the integrity of the counting and consolidation software
embedded in them. That task belongs at the first instance to
Comelec, as part of its mandate to ensure clean and peaceful
elections. This independent constitutional commission, it is true,
possesses extraordinary powers and enjoys a considerable
latitude in the discharge of its functions. The road, however,
towards successful 2010 automation elections would certainly be
rough and bumpy. The Comelec is laboring under very tight
timelines. It would accordingly need the help of all advocates of
orderly and honest elections, of all men and women of goodwill, to
smoothen the way and assist Comelec personnel address the
fears expressed about the integrity of the system. Like anyone
else, the Court would like and wish automated elections to
succeed, credibly.

WHEREFORE, the instant petition is hereby DENIED.

G.R. No. 199082 July 23, 2013

JOSE MIGUEL T. ARROYO, Petitioner,

vs.
DEPARTMENT OF JUSTICE; COMMISSION ON ELECTIONS;
HON. LEILA DE LIMA, in her capacity as Secretary of the
Department of Justice; HON. SIXTO BRILLANTES, JR., in his
capacity as Chairperson of the Commission on Elections;
and the JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITTEE and FACT-FINDING
TEAM, Respondents.

x-----------------------x

G.R. No. 199085

BENJAMIN S. ABALOS, SR., Petitioner,

vs.
HON. LEILA DE LIMA, in capacity as Secretary of Justice;
HON. SIXTO S. BRILLANTES, JR., in his capacity as
COMELEC Chairperson; RENE V. SARMIENTO, LUCENITO N.
TAGLE, ARMANDO V. VELASCO, ELIAS R. YUSOPH,
CHRISTIAN ROBERT S. LIM AND AUGUSTO C. LAGMAN, in
their capacity as COMELEC COMMISSIONERS; CLARO A.
ARELLANO, GEORGE C. DEE, JACINTO G. ANG, ROMEO B.
FORTES AND MICHAEL D. VILLARET, in their capacity as
CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF THE
JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
COMMITTEE ON THE 2004 AND 2007 ELECTION
FRAUD, Respondents.

x-----------------------x

G.R. No. 199118

GLORIA MACAPAGAL-ARROYO, Petitioner,

vs.
COMMISSION ON ELECTIONS, represented by Chairperson
Sixto S. Brillantes, Jr., DEPARTMENT OF JUSTICE,
represented by Secretary Leila M. De Lima, JOINT DOJ-
COMELEC PRELIMINARY INVESTIGATION COMMITTEE,
SENATOR AQUILINO M. PIMENTEL III, and DOJ-COMELEC
FACT FINDING TEAM, Respondents.

RESOLUTION

PERALTA, J.:

For resolution are the separate motions for reconsideration filed

by movants Gloria Macapagal Arroyo (GMA)1 in G.R. No. 199118
and Jose Miguel T. Arroyo (Mike Arroyo )2 in G.R. No. 199082
praying that the Court take a second look at our September 18,
2012 Decision3 dismissing their petitions and supplemental
petitions against respondents Commission on Elections
(Comelec), the Department of Justice (DOJ), Senator Aquilino M.
Pimentel III (Senator Pimentel), Joint DOJ-Comelec Preliminary
Investigation Committee (Joint Committee) and DOJ-Comelec
Fact-Finding Team (Fact-Finding Team), et al.
For a better perspective, we briefly state the relevant factual and
procedural antecedents as found by the Court in the assailed
decision, to wit:

On August 15, 2011, the Comelec and the DOJ issued Joint
Order No. 001-2011 creating and constituting a Joint Committee
and Fact-Finding Team (referred to as Joint Panel) on the 2004
and 2007 National Elections electoral fraud and manipulation
cases. The Joint Committee was mandated to conduct the
necessary preliminary investigation on the basis of the evidence
gathered and the charges recommended by the Fact-Finding
Team. The Fact-Finding Team, on the other hand, was created
for the purpose of gathering real, documentary, and testimonial
evidence which can be utilized in the preliminary investigation to
be conducted by the Joint Committee. Pursuant to Section 74 of
the Joint Order, on August 23, 2011, the Joint Committee
promulgated its Rules of Procedure.

In its Initial Report5 dated October 20, 2011, the Fact-Finding

Team concluded that manipulation of the results in the May 14,
2007 senatorial elections in the provinces of North and South
Cotabato, and Maguindanao was indeed perpetrated.6 The Fact-
Finding Team recommended, among others, that petitioner
Benjamin S. Abalos, Sr. (Abalos) be subjected to preliminary
investigation for electoral sabotage for conspiring to manipulate
the election results in North and South Cotabato; that GMA and
Abalos be subjected to another preliminary investigation for
manipulating the election results in Maguindanao;7 and, that Mike
Arroyo be subjected to further investigation.8 The case was
docketed as DOJ-Comelec Case No. 001-2011.

Meanwhile, on October 17, 2011, Senator Pimentel filed a

ComplaintAffidavit9 for Electoral Sabotage against petitioners and
twelve others, and several John Does and Jane Does. The case
was docketed as DOJ-Comelec Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two subpoenas
against petitioners in DOJ-Comelec Case Nos. 001-2011 and
002-2011.10 On November 3, 2011, petitioners, through counsel,
appeared before the Joint Committee11 and respondents therein
were ordered to submit their Counter-Affidavits by November 14,
2011.12

Thereafter, petitioners filed before the Court separate Petitions for

Certiorari and Prohibition with Prayer for the Issuance of a
Temporary Restraining Order (TRO) and/or Writ of Preliminary
Injunction assailing the creation of the Joint Panel.13 The petitions
were eventually consolidated.

On November 14, 2011, Mike Arroyo filed a Motion to Defer

Proceedings14 before the Joint Committee, in view of the
pendency of his petition before the Court. On the same day, GMA
filed before the Joint Committee an Omnibus Motion Ad
Cautelam15 to require Senator Pimentel to furnish her with
documents referred to in his complaint-affidavit and for the
production of election documents as basis for the charge of
electoral sabotage. GMA prayed that she be allowed to file her
counter-affidavit within ten (10) days from receipt of the requested
documents.16 Petitioner Abalos, for his part, filed a Motion to
Suspend Proceedings (Ex Abundante Ad Cautelam),17 in view of
the pendency of his petition brought before the Court.

In an Order18 dated November 15, 2011, the Joint Committee

denied the aforesaid motions of petitioners. GMA, subsequently,
filed a motion for reconsideration.19

On November 16, 2011, the Joint Committee promulgated a Joint

Resolution which was later indorsed to the Comelec.20 On
November 18, 2011, the Comelec en banc issued a
Resolution21 approving and adopting the Joint Resolution subject
to modifications. The Comelec resolved, among others, that an
information for electoral sabotage be filed against GMA and
Abalos, while the charges against Mike Arroyo be dismissed for
insufficiency of evidence.

On even date, pursuant to the above Resolution, the Comelec’s

Law Department filed with the Regional Trial Court (RTC), Pasay
City, an Information against petitioner GMA, Governor Andal
Ampatuan, Sr., and Atty. Lintang H. Bedol, for violation of Section
42(b)(3) of Republic Act (RA) No. 9369, amending Section 27 (b)
of RA 6646, docketed as Criminal Case No. RPSY-11-04432-
CR.22 The case was raffled to Branch 112 and the corresponding
Warrant of Arrest was issued which was served on GMA on the
same day.23

On November 18, 2011, GMA filed with the RTC an Urgent

Omnibus Motion Ad Cautelam24 with leave to allow the Joint
Committee to resolve the motion for reconsideration filed by GMA,
to defer issuance of a warrant of arrest and a hold departure
order, and to proceed to judicial determination of probable cause.
She, likewise, filed with the Comelec a Motion to Vacate Ad
Cautelam25 praying that its Resolution be vacated for being null
and void. The RTC, nonetheless, issued a Warrant for her arrest
which was duly served. GMA was later arraigned and she entered
a plea of "not guilty." She was, for some time, on hospital arrest
but was able to obtain temporary liberty when her motion for bail
was granted. At present, she is again on hospital arrest by virtue
of a warrant issued in another criminal case.

On September 18, 2012, the Court rendered the assailed

Decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the petitions and

supplemental petitions are DISMISSED. Comelec Resolution No.
9266 dated August 2, 2011, Joint Order No. 001-2011 dated
August 15, 2011, and the Fact- Finding Team’s Initial Report
dated October 20, 2011, are declared VALID. However, the Rules
of Procedure on the Conduct of Preliminary Investigation on the
Alleged Election Fraud in the 2004 and 2007 National Elections is
declared INEFFECTIVE for lack of publication.

In view of the constitutionality of the Joint Panel and the

proceedings having been conducted in accordance with Rule 112
of the Rules on Criminal Procedure and Rule 34 of the Comelec
Rules of Procedure, the conduct of the preliminary investigation is
hereby declared VALID.

Let the proceedings in the Regional Trial Court of Pasay City,

Branch 112, where the criminal cases for electoral sabotage
against petitioners GMA and Abalos are pending, proceed with
dispatch.

SO ORDERED.26

Hence, these motions for reconsideration.

Issues

Mike Arroyo reiterates his arguments on the independence of the

Comelec as basis in nullifying the subject joint DOJ-Comelec
resolutions. Echoing Justice Arturo Brion in his Dissenting and
Concurring Opinion,27 Mike Arroyo insists that the creation of the
Joint Panel undermines the decisional independence of the
Comelec.28

Mike Arroyo also maintains that the DOJ should conduct

preliminary investigation only when deputized by the Comelec but
not exercise concurrent jurisdiction.29 Finally, as has been
repeatedly pointed out in his earlier pleadings before the Court,
Mike Arroyo claims that the proceedings involving the electoral
sabotage case were rushed because of pressures from the
executive branch of the government.30

For her part, GMA claims that in availing of the procedural

remedies available, she merely exercised her earnest efforts to
defend herself and should not have been deemed by the Court as
acts which purportedly tend to demonstrate that she either waived
or forfeited her right to submit her counter-affidavit and
countervailing evidence.31 Citing several cases decided by the
Court, she likewise faults the Court in not upholding her right to
ask for additional time within which to submit her counter-affidavit
and countervailing evidence.32 GMA highlights that the subject
Comelec Resolution creating the Joint Panel is different from the
previous Comelec resolutions requesting the DOJ Secretary to
assign prosecutors to assist the Comelec, as the latter emphasize
the role of the DOJ as deputized agency in the conduct of
preliminary investigation. She maintains that it is the Comelec and
not the Joint Committee that has the primary, if not exclusive,
authority to conduct preliminary investigation of election cases.33

In their Consolidated Comment,34 respondents defend the

creation of the Joint Committee and argue that it does not
undermine the independence of the Comelec as a constitutional
body because it is still the Comelec that ultimately determines
probable cause.35 As to the conduct of the preliminary
investigation, respondents maintain that no rights were violated as
GMA was afforded the opportunity to defend herself, submit her
counter-affidavit and other countervailing evidence.36 They, thus,
consider GMA’s claim of availing of the remedial measures as
"delaying tactics" employed to thwart the investigation of charges
against her by the Joint Committee.37

The Court’s Ruling

Clearly from the above discussion, movants raise issues that

have been thoroughly explained by the Court in the assailed
decision. The issues were all addressed and the explanation was
exhaustive, thus, we find no reason to disturb the Court’s
conclusions.
At any rate, if only to address the motions of the movants herein
and to put an end to the questions attached to the creation of the
Joint Panel and, consequently, to the performance of their
assigned tasks, we hereby reiterate our findings and conclusions
made in the assailed decision.

This is not the first time that the Court is confronted with the issue
of whether the Comelec has the exclusive power to investigate
and prosecute cases of violations of election laws. In Barangay
Association for National Advancement and Transparency
(BANAT) Party-List v. Commission on Elections,38 the
constitutionality of Section 4339 of RA 936940 had already been
raised by petitioners therein and addressed by the Court. While
recognizing the Comelec’s exclusive power to investigate and
prosecute cases under Batas Pambansa Bilang 881 or the
Omnibus Election Code, the Court pointed out that the framers of
the 1987 Constitution did not have such intention. This exclusivity
is thus a legislative enactment that can very well be amended by
Section 43 of RA 9369. Therefore, under the present law, the
Comelec and other prosecuting arms of the government, such as
the DOJ, now exercise concurrent jurisdiction in the investigation
and prosecution of election offenses.

Indeed, as aptly pointed out by GMA, there is a discrepancy

between Comelec Resolution No. 346741 dated January 12, 2001
and Joint Order No. 001-2011, dated August 15, 2011, creating
and constituting a Joint Committee and Fact-Finding Team on the
2004 and 2007 National Elections electoral fraud and
manipulation cases. However, GMA seemed to miss the date
when these two resolutions were promulgated by the Comelec. It
is noteworthy that Comelec Resolution No. 3467 was issued
when Section 265 of the Omnibus Election Code was still
effective, while Joint Order No. 001-2011 as well as Comelec
Resolution Nos. 873342 and 905743 mentioned in the assailed
decision but missed out by GMA in her motion, were issued
during the effectivity of Section 43 of RA 9369, giving the
Comelec and other prosecuting arms of the government the
concurrent jurisdiction to investigate and prosecute election
offenses. This amendment paved the way for the discrepancy. In
Comelec Resolution No. 3467, the Comelec maintained the
continuing deputation of prosecutors and the Comelec Law
Department was tasked to supervise the investigatory and
prosecutory functions of the task force pursuant to the mandate of
the Omnibus Election Code. However, with the amendment, the
Comelec likewise changed the tenor of the later resolutions to
reflect the new mandate of the Comelec and other prosecuting
arms of the government now exercising concurrent jurisdiction.
Thus, the Comelec Law Department and the Office of the Chief
State Prosecutor of the DOJ were tasked to jointly supervise the
investigatory and prosecutory functions of the Comelec-DOJ Task
Force. Considering, therefore, that the later resolutions, including
Joint Order No. 001-2011, were issued pursuant to Section 43 of
RA 9369 amending Section 265 of BP 881 which was declared
"constitutional" in Banat, there is no reason for us to declare
otherwise. To maintain the previous role of other prosecuting
arms of the government as mere deputies despite the amendment
would mean challenging Section 43 of RA 9369 anew which has
already been settled in Banat.

To be sure, the creation of a Joint Committee is not repugnant to

the concept of "concurrent jurisdiction" authorized by the
amendatory law. As we explained in our September 18, 2012
Decision:

x x x The doctrine of concurrent jurisdiction means equal

jurisdiction to deal with the same subject matter. Contrary to the
contention of the petitioners, there is no prohibition on
simultaneous exercise of power between two coordinate bodies.
What is prohibited is the situation where one files a complaint
against a respondent initially with one office (such as the
Comelec) for preliminary investigation which was immediately
acted upon by said office and the re-filing of substantially the
same complaint with another office (such as the DOJ). The
subsequent assumption of jurisdiction by the second office over
the cases filed will not be allowed. Indeed, it is a settled rule that
the body or agency that first takes cognizance of the complaint
shall exercise jurisdiction to the exclusion of the others.

xxxx

None of these problems would likely arise in the present case.

The Comelec and the DOJ themselves agreed that they would
exercise their concurrent jurisdiction jointly. Although the
preliminary investigation was conducted on the basis of two
complaints – the initial report of the Fact-Finding Team and the
complaint of Senator Pimentel – both complaints were filed with
the Joint Committee. Consequently, the complaints were filed with
and the preliminary investigation was conducted by only one
investigative body. Thus, we find no reason to disallow the
exercise of concurrent jurisdiction jointly by those given such
authority. This is especially true in this case given the magnitude
of the crimes allegedly committed by petitioners. The joint
preliminary investigation also serves to maximize the resources
and manpower of both the Comelec and the DOJ for the prompt
disposition of the cases.44

Notwithstanding the grant of concurrent jurisdiction, the Comelec

and the DOJ nevertheless included a provision in the assailed
Joint Order whereby the resolutions of the Joint Committee
finding probable cause for election offenses shall still be approved
by the Comelec in accordance with the Comelec Rules of
Procedure.45 With more reason, therefore, that we cannot
consider the creation of the Joint Committee as an abdication of
the Comelec’s independence enshrined in the 1987 Constitution.
Finally, we focus on the validity of the preliminary investigation
conducted by the Joint Committee.

The procedure in conducting the preliminary investigation is

governed by Rule 112 of the Revised Rules on Criminal
Procedure and Rule 34 of the Comelec Rules of Procedure.
Under both Rules,46 the respondent shall submit his counter-
affidavit and that of his witnesses and other supporting
documents relied upon for his defense, within ten (10) days from
receipt of the subpoena, with the complaint and supporting
affidavits and documents.47 Also in both Rules, respondent is
given the right to examine evidence, but such right of examination
is limited only to the documents or evidence submitted by
complainants which she may not have been furnished and to copy
them at her expense.48

As to the alleged denial of GMA’s right to examine documents, we

maintain that no right was violated in view of the limitation of such
right as set forth above. We reiterate our explanation in the
assailed decision, to wit:

While it is true that Senator Pimentel referred to certain election

documents which served as bases in the allegations of significant
findings specific to the protested municipalities involved, there
were no annexes or attachments to the complaint filed. As stated
in the Joint Committee’s Order dated November 15, 2011 denying
GMA’s Omnibus Motion Ad Cautelam, Senator Pimentel was
ordered to furnish petitioners with all the supporting evidence.
However, Senator Pimentel manifested that he was adopting all
the affidavits attached to the Fact-Finding Team’s Initial Report.
Therefore, when GMA was furnished with the documents
attached to the Initial Report, she was already granted the right to
examine as guaranteed by the Comelec Rules of Procedure and
the Rules on Criminal Procedure. Those were the only documents
submitted by the complainants to the Committee. If there are
other documents that were referred to in Senator Pimentel’s
complaint but were not submitted to the Joint Committee, the
latter considered those documents unnecessary at that point
(without foreclosing the relevance of other evidence that may later
be presented during the trial) as the evidence submitted before it
were considered adequate to find probable cause against her. x x
x491âwphi1

Neither was GMA’s right violated when her motion for extension
of time within which to submit her counter-affidavit and
countervailing evidence was consequently denied. The Rules use
the term "shall" in requiring the respondent to submit counter-
affidavit and other countervailing evidence within ten (10) days
from receipt of the subpoena. It is settled that the use of the word
"shall" which is a word of command, underscores the mandatory
character of the rule.50 As in any other rule, though, liberality in
the application may be allowed provided that the party is able to
present a compelling justification for the non-observance of the
mandatory rules. In the 2008 Revised Manual for Prosecutors,
investigating prosecutors allow or grant motions or requests for
extension of time to submit counter-affidavits when the interest of
justice demands that respondent be given reasonable time or
sufficient opportunity to engage the services of counsel; examine
voluminous records submitted in support of the complaint or
undertake research on novel, complicated or technical questions
or issues of law and facts of the case.51

In this case, GMA claimed that she could not submit her
counteraffidavit within the prescribed period because she needed
to examine documents mentioned in Senator Pimentel’s
complaint-affidavit. It appeared, however, that said documents
were not submitted to the Joint Committee and the only
supporting documents available were those attached to the Initial
Report of the Fact-Finding Team. Admittedly, GMA was furnished
those documents. Thus, at the time she asked for the extension of
time within which to file her counter-affidavit, she very well knew
that the documents she was asking were not in the record of the
case. Obviously, she was not furnished those documents
because they were not submitted to the Joint Committee.
Logically, she has no right to examine said documents. We
cannot, therefore, fault the Joint Committee in consequently
denying her motion for extension to file counter-affidavit as there
was no compelling justification for the non-observance of the
period she was earlier required to follow.

And as we held in the assailed decision:

There might have been overzealousness on the part of the Joint

Committee in terminating the investigation, endorsing the Joint
Resolution to the Comelec for approval, and in filing the
information in court.

However, speed in the conduct of proceedings by a judicial or

quasijudicial officer cannot per se be instantly attributed to an
injudicious performance of functions. The orderly administration of
justice remains the paramount consideration with particular regard
to the peculiar circumstances of each case. To be sure,
petitioners were given the opportunity to present countervailing
evidence. Instead of complying with the Joint Committee’s
directive, several motions were filed but were denied by the Joint
Committee. Consequently, petitioners’ right to submit counter-
affidavit and countervailing evidence was forfeited. Taking into
account the constitutional right to speedy disposition of cases and
following the procedures set forth in the Rules on Criminal
Procedure and the Comelec Rules of Procedure, the Joint
Committee finally reached its conclusion and referred the case to
the Comelec. The latter, in turn, performed its task and filed the
information in court. Indeed, petitioners were given the
opportunity to be heard. They even actively participated in the
proceedings and in fact filed several motions before the Joint
Committee. Consistent with the constitutional mandate of speedy
disposition of cases, unnecessary delays should be avoided.52

Finally, in our assailed decision, we already took judicial notice

that not only did GMA enter a plea of "not guilty," she also filed a
Motion for Bail and after due hearing, it was granted. Apparently,
she benefited from the RTC Order giving her temporary liberty. In
filing the motion before the RTC and actively participating therein,
she has chosen to seek judicial remedy before the RTC where the
electoral sabotage case is pending instead of the executive
remedy of going back to the Joint Committee for the submission
of her counter-affidavit and countervailing evidence. Besides, as
thoroughly discussed in the assailed decision, the irregularity or
even the absence of preliminary investigation does not impair the
validity of the information filed against her.

WHEREFORE, premises considered, the Motions for

Reconsideration are DENIED for lack of merit.

SO ORDERED.

G.R. No. 207264 October 22, 2013

REGINA ONGSIAKO REYES, Petitioner,

vs.
COMMISSION ON ELECTIONS and JOSEPH SOCORRO B.
TAN, Respondents.

RESOLUTION

PEREZ, J.:

This is a Motion for Reconsideration of the En Bane Resolution of

25 June 2013 which stated that: IN VIEW OF THE FOREGOING,
the instant petition is DISMISSED, finding no grave abuse of
discretion on the part of the Commission on Elections. The 14
May 2013 Resolution of the COMELEC En Banc affirming the 27
March 2013 Resolution of the COMELEC First Division is upheld."

In her Motion for Reconsideration, petitioner summarizes her

submission, thus:

"81. Stated differently, the Petitioner x x x is not asking the

Honorable Court to make a determination as regards her
qualifications, she is merely asking the Honorable Court to affirm
the jurisdiction of the HRET to solely and exclusively pass upon
such qualifications and to set aside the COMELEC Resolutions
for having denied Petitioner her right to due process and for
unconstitutionally adding a qualification not otherwise required by
the constitution."1 (as originally underscored)

The first part of the summary refers to the issue raised in the
petition, which is:

"31. Whether or not Respondent Comelec is without jurisdiction

over Petitioner who is duly proclaimed winner and who has
already taken her oath of office for the position of Member of the
House of Representatives for the lone congressional district of
Marinduque."2

Tied up and neatened the propositions on the COMELEC-or-

HRET jurisdiction go thus: petitioner is a duly proclaimed winner
and having taken her oath of office as member of the House of
Representatives, all questions regarding her qualifications are
outside the jurisdiction of the COMELEC and are within the HRET
exclusive jurisdiction.

The averred proclamation is the critical pointer to the correctness

of petitioner's submission. The crucial question is whether or not
petitioner could be proclaimed on 18 May 2013. Differently stated,
was there basis for the proclamation of petitioner on 18 May
2013?
Dates and events indicate that there was no basis for the
proclamation of petitioner on 18 May 2013. Without the
proclamation, the petitioner's oath of office is likewise baseless,
and without a precedent oath of office, there can be no valid and
effective assumption of office.

We have clearly stated in our Resolution of 5 June 2013 that:

"More importantly, we cannot disregard a fact basic in this

controversy – that before the proclamation of petitioner on 18 May
2013, the COMELEC En Banc had already finally disposed of the
issue of petitioner's lack of Filipino citizenship and residency via
its Resolution dated 14 May 2013. After 14 May 2013, there was,
before the COMELEC, no longer any pending case on petitioner's
qualifications to run for the position of Member of the House of
Representatives. x x x As the point has obviously been missed by
the petitioner who continues to argue on the basis of her due
proclamation, the instant motion gives us the opportunity to
highlight the undeniable fact we here repeat that the proclamation
which petitioner secured on 18 May 2013 was WITHOUT ANY
BASIS.

1. Four (4) days BEFORE the 18 May 2013 proclamation, or

on 14 May 2013, the COMELEC En Banc has already
denied for lack o merit the petitioner's motion to reconsider
the decision o the COMELEC First Division that
CANCELLED petitioner's certificate of candidacy.

2. On 18 May 2013, there was already a standing and

unquestioned cancellation of petitioner's certificate o
candidacy which cancellation is a definite bar to her
proclamation. On 18 May 2003, that bar has not been
removed, there was not even any attempt to remove it.
3. The COMELEC Rules indicate the manner by which the
impediment to proclamation may be removed. Rule 18,
Section 13 (b) provides:

"(b) In Special Actions and Special Cases a decision or

resolution of the Commission En Bane shall become final
and executory after five (5) days from its promulgation
unless restrained by the Supreme Court."

Within that five (5 days, petitioner had the opportunity to go

to the Supreme Court for a restraining order that will remove
the immediate effect of the En Banc cancellation of her
certificate of candidacy. Within the five (5) days the Supreme
Court may remove the barrier to, and thus allow, the
proclamation of petitioner. That did not happen. Petitioner
did not move to have it happen.

It is error to argue that the five days should pass before the
petitioner is barred from being proclaimed. Petitioner lost in
the COMELEC as of respondent. Her certificate of candidacy
has been ordered cancelled. She could not be proclaimed
because there was a final finding against her by the
COMELEC.3 She needed a restraining order from the
Supreme Court to avoid the final finding. After the five days
when the decision adverse to her became executory, the
need for Supreme Court intervention became even more
imperative. She would have to base her recourse on the
position that the COMELEC committed grave abuse of
discretion in cancelling her certificate of candidacy and that a
restraining order, which would allow her proclamation, will
have to be based on irreparable injury and demonstrated
possibility of grave abuse of discretion on the part of the
COMELEC. In this case, before and after the 18 May 2013
proclamation, there was not even an attempt at the legal
remedy, clearly available to her, to permit her proclamation.
 What petitioner did was to "take the law into her hands" and
secure a proclamation in complete disregard of the
COMELEC En Bane decision that was final on 14 May 2013
and final and executory five days thereafter.

4. There is a reason why no mention about notice was made

in Section 13(b) of Rule 18 in the provision that the
COMELEC En Bane or decision "SHALL become FINAL
AND EXECUTORY after five days from its promulgation
unless restrained by the Supreme Court." On its own the
COMELEC En Bane decision, unrestrained, moves from
promulgation into becoming final and executory. This is so
because in Section 5 of Rule 18 it is stated:

Section 5. Promulgation. -The promulgation of a decision or

resolutions of the Commission or a division shall be made on a
date previously fixed, of which notice shall be served in advance
upon the parties or their attorneys personally or by registered mail
or by telegram.

5. Apart from the presumed notice of the COMELEC En

Bane decision on the very date of its promulgation on 14
May 2013, petitioner admitted in her petition before us that
she in fact received a copy of the decision on 16 May 20
13.4 On that date, she had absolutely no reason why she
would disregard the available legal way to remove the
restraint on her proclamation, and, more than that, to in fact
secure a proclamation two days thereafter. The utter
disregard of a final COMELEC En Bane decision and of the
Rule stating that her proclamation at that point MUST be on
permission by the Supreme Court is even indicative of bad
faith on the part of the petitioner.

6. The indicant is magnified by the fact that petitioner would

use her tainted proclamation as the very reason to support
her argument that she could no longer be reached by the
jurisdiction of the COMELEC; and that it is the HRET that
has exclusive jurisdiction over the issue of her qualifications
for office.

7. The suggestions of bad faith aside, petitioner is in error in

the conclusion at which she directs, as well as in her
objective quite obvious from such conclusion. It is with her
procured proclamation that petitioner nullifies the
COMELEC's decision, by Division and then En Banc and
pre-empts any Supreme Court action on the COMELEC
decision. In other words, petitioner repudiates by her
proclamation all administrative and judicial actions thereon,
past and present. And by her proclamation, she claims as
acquired the congressional seat that she sought to be a
candidate for. As already shown, the reasons that lead to the
impermissibility of the objective are clear. She cannot sit as
Member of the House of Representatives by virtue of a
baseless proclamation knowingly taken, with knowledge of
the existing legal impediment.

8. Petitioner, therefore, is in error when she posits that at

present it is the HRET which has exclusive jurisdiction over
her qualifications as a Member of the House of
Representatives. That the HRET is the sole judge of all
contests relating to the election, returns and qualifications of
the Members of the House of Representatives is a written
constitutional provision. It is, however unavailable to
petitioner because she is NOT a Member of the House at
present. The COMELEC never ordered her proclamation as
the rightful winner in the election for such
membership.5 Indeed, the action for cancellation of
petitioner's certificate of candidacy, the decision in which is
the indispensable determinant of the right of petitioner to
proclamation, was correctly lodged in the COMELEC, was
completely and fully litigated in the COMELEC and was
finally decided by the COMELEC. On and after 14 May
2013, there was nothing left for the COMELEC to do to
decide the case. The decision sealed the proceedings in the
COMELEC regarding petitioner's ineligibility as a candidate
for Representative of Marinduque. The decision erected the
bar to petitioner's proclamation. The bar remained when no
restraining order was obtained by petitioner from the
Supreme Court within five days from 14 May 2013.

9. When petitioner finally went to the Supreme Court on 10

June 2013 questioning the COMELEC First Division ruling
and the 14 May 2013 COMELEC En Bane decision, her
baseless proclamation on 18 May 2013 did not by that fact of
promulgation alone become valid and legal. A decision
favorable to her by the Supreme Court regarding the
decision of the COMELEC En Bane on her certificate of
candidacy was indispensably needed, not to legalize her
proclamation on 18 May 2013 but to authorize a
proclamation with the Supreme Court decision as basis.

10. The recourse taken on 25 June 2013 in the form of an

original and special civil action for a writ of Certiorari through
Rule 64 of the Rules of Court is circumscribed by set rules
and principles.

a) The special action before the COMELEC which was

a Petition to Cancel Certificate of Candidacy was a
SUMMARY PROCEEDING or one heard summarily.
The nature of the proceedings is best indicated by the
COMELEC Rule on Special Actions, Rule 23, Section 4
of which states that the Commission may designate any
of its officials who are members of the Philippine Bar to
hear the case and to receive evidence. COMELEC Rule
17 further provides in Section 3 that when the
proceedings are authorized to be summary, in lieu of
 oral testimonies, the parties may, after due notice, be
required to submit their position paper together with
affidavits, counter-affidavits and other documentary
evidence; x x x and that this provision shall likewise
apply to cases where the hearing and reception of
evidence are delegated by the Commission or the
Division to any of its officials x x x.

b) The special and civil action of Certiorari is defined in

the Rules of Court thus:

When any tribunal, board or officer exercising judicial or quasi-

judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law, a
person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment
be rendered annulling or modifying the proceedings of such
tribunal, board or officer, and granting such incidental reliefs as
law and justice may require.

The accepted definition of grave abuse of discretion is: a

capricious and whimsical exercise of judgment so patent and
gross as to amount to an evasion of a positive duty or a virtual
refusal to perform a duty enjoined by law, as where the power is
exercised in an arbitrary and despotic manner because of passion
or hostility.6

It is the category of the special action below providing the

procedural leeway in the exercise of the COMELEC summary
jurisdiction over the case, in conjunction with the limits of the
Supreme Court's authority over the FINAL COMELEC ruling that
is brought before it, that defines the way petitioner's submission
before the Court should be adjudicated. Thus further explained,
the disposition of 25 June 2013 is here repeated for affirmation:
Petitioner alleges that the COMELEC gravely abused its
discretion when it took cognizance of "newly-discovered
evidence" without the same having been testified on and offered
and admitted in evidence. She assails the admission of the blog
article of Eli Obligacion as hearsay and the photocopy of the
Certification from the Bureau of Immigration. She likewise
contends that there was a violation of her right to due process of
law because she was not given the opportunity to question and
present controverting evidence.

Her contentions are incorrect.

It must be emphasized that the COMELEC is not bound to strictly

adhere to the technical rules of procedure in the presentation of
evidence. Under Section 2 of Rule I the COMELEC Rules of
Procedure shall be liberally construed in order x x x to achieve
just, expeditious and inexpensive determination and disposition of
every action and proceeding brought before the Commission. In
view of the fact that the proceedings in a petition to deny due
course or to cancel certificate of candidacy are summary in
nature, then the newly discovered evidence was properly
admitted by respondent COMELEC.

Furthermore, there was no denial of due process in the case at

bar as petitioner was given every opportunity to argue her case
before the COMELEC. From 10 October 2012 when Tan's petition
was filed up to 27 March 2013 when the First Division rendered its
resolution, petitioner had a period of five (5) months to adduce
evidence. Unfortunately, she did not avail herself of the
opportunity given her.

Also, in administrative proceedings, procedural due process only

requires that the party be given the opportunity or right to be
heard. As held in the case of Sahali v. COMELEC:
The petitioners should be reminded that due process does not
necessarily mean or require a hearing, but simply an opportunity
or right to be heard. One may be heard, not solely by verbal
presentation but also, and perhaps many times more creditably
and predictable than oral argument, through pleadings. In
administrative proceedings moreover, technical rules of procedure
and evidence are not strictly applied; administrative process
cannot be fully equated with due process in its strict judicial
sense. Indeed, deprivation of due process cannot be successfully
invoked where a party was given the chance to be he rd on his
motion for reconsideration. (Emphasis supplied)

As to the ruling that petitioner s ineligible to run for office on the

ground of citizenship, the COMELEC First Division, discoursed as
follows:

"x x x for respondent to reacquire her Filipino citizenship and

become eligible for public office the law requires that she must
have accomplished the following acts: (1) take the oath of
allegiance to the Republic of the Philippines before the Consul-
General of the Philippine Consulate in the USA; and (2) make a
personal and sworn renunciation of her American citizenship
before any public officer authorized to administer an oath.

In the case at bar, there s no showing that respondent complied

with the aforesaid requirements. Early on in the proceeding,
respondent hammered on petitioner's lack of proof regarding her
American citizenship, contending that it is petitioner's burden to
present a case. She, however, specifically denied that she has
become either a permanent resident or naturalized citizen of the
USA.

Due to petitioner's submission of newly-discovered evidence thru

a Manifestation dated February 7, 2013, however, establishing
the fact that respondent is a holder of an American passport
which she continues to use until June 30 2012 petitioner was able
to substantiate his allegations. The burden now shifts to
respondent to present substantial evidence to prove otherwise.
This, the respondent utterly failed to do, leading to the conclusion
inevitable that respondent falsely misrepresented in her COC that
she is a natural-born Filipino citizen. Unless and until she can
establish that she had availed of the privileges of RA 9225 by
becoming a dual Filipino-American citizen, and thereafter, made a
valid sworn renunciation of her American citizenship, she remains
to be an American citizen and is, therefore, ineligible to run for
and hold any elective public office in the Philippines." (Emphasis
in the original.)

Let us look into the events that led to this petition: In moving for
the cancellation of petitioner's COC, respondent submitted
records of the Bureau of Immigration showing that petitioner is a
holder of a US passport, and that her status is that of a
balikbayan. At this point, the burden of proof shifted to petitioner,
imposing upon her the duty to prove that she is a natural-born
Filipino citizen and has not lost the same, or that she has re-
acquired such status in accordance with the provisions of R.A.
No. 9225. Aside from the bare allegation that she is a natural-born
citizen, however, petitioner submitted no proof to support such
contention. Neither did she submit any proof as to the
inapplicability of R.A. No. 9225 to her.

Notably, in her Motion for Reconsideration before the COMELEC

En Bane, petitioner admitted that she is a holder of a US
passport, but she averred that she is only a dual Filipino-
American citizen, thus the requirements of R.A. No. 9225 do not
apply to her. Still, attached to the said motion is an Affidavit of
Renunciation of Foreign Citizenship dated 24 September 2012.
Petitioner explains that she attached said Affidavit if only to show
her desire and zeal to serve the people and to comply with rules,
even as a superfluity. We cannot, however, subscribe to
petitioner's explanation. If petitioner executed said Affidavit if only
to comply with the rules, then it is an admission that R.A. No.
9225 applies to her. Petitioner cannot claim that she executed it to
address the observations by the COMELEC as the assailed
Resolutions were promulgated only in 2013, while the Affidavit
was executed in September 2012.1âwphi1

Moreover, in the present petition, petitioner added a footnote to

her oath of office as Provincial Administrator, to this effect: This
does not mean that Petitioner did not, prior to her taking her oath
of office as Provincial Administrator, take her oath of allegiance
for purposes of re-acquisition of natural-born Filipino status, which
she reserves to present in the proper proceeding. The reference
to the taking of oath of office is in order to make reference to what
is already part of the records and evidence in the present case
and to avoid injecting into the records evidence on matters of fact
that was not previously passed upon by Respondent COMELEC.
This statement raises a lot of questions -Did petitioner execute an
oath of allegiance for re-acquisition of natural-born Filipino status?
If she did, why did she not present it at the earliest opportunity
before the COMELEC? And is this an admission that she has
indeed lost her natural-born Filipino status?

To cover-up her apparent lack of an oath of allegiance as required

by R.A. No. 9225, petitioner contends that, since she took her
oath of allegiance in connection with her appointment as
Provincial Administrator of Marinduque, she is deemed to have
reacquired her status as a natural-born Filipino citizen.

This contention is misplaced. For one, this issue is being

presented for the first time before this Court, as it was never
raised before the COMELEC. For another, said oath of allegiance
cannot be considered compliance with Sec. 3 of R.A. No. 9225 as
certain requirements have to be met as prescribed by
Memorandum Circular No. AFF-04-01, otherwise known as the
Rules Governing Philippine Citizenship under R.A. No. 9225 and
Memorandum Circular No. AFF-05-002 (Revised Rules) and
Administrative Order No. 91, Series of 2004 issued by the Bureau
of Immigration. Thus, petitioner s oath of office as Provincial
Administrator cannot be considered as the oath of allegiance in
compliance with R.A. No. 9225.

These circumstances, taken together, show that a doubt was

clearly cast on petitioner s citizenship. Petitioner, however, failed
to clear such doubt.7

11. It may need pointing out that there is no conflict between

the COMELEC and the HRET insofar as the petitioner s
being a Representative of Marinduque is concerned. The
COMELEC covers the matter of petitioner s certificate of
candidacy, and its due course or its cancellation, which are
the pivotal conclusions that determines who can be legally
proclaimed. The matter can go to the Supreme Court but not
as a continuation of the proceedings in the COMELEC,
which has in fact ended, but on an original action before the
Court grounded on more than mere error of judgment but on
error of jurisdiction for grave abuse of discretion. At and after
the COMELEC En Bane decision, there is no longer any
certificate cancellation matter than can go to the HRET. In
that sense, the HRET s constitutional authority opens, over
the qualification of its MEMBER, who becomes so only upon
a duly and legally based proclamation, the first and
unavoidable step towards such membership. The HRET
jurisdiction over the qualification of the Member of the House
of Representatives is original and exclusive, and as such,
proceeds de novo unhampered by the proceedings in the
COMELEC which, as just stated has been terminated. The
HRET proceedings is a regular, not summary, proceeding. It
will determine who should be the Member of the House. It
must be made clear though, at the risk of repetitiveness, that
no hiatus occurs in the representation of Marinduque in the
 House because there is such a representative who shall sit
as the HRET proceedings are had till termination. Such
representative is the duly proclaimed winner resulting from
the terminated case of cancellation of certificate of
candidacy of petitioner. The petitioner is not, cannot, be that
representative. And this, all in all, is the crux of the dispute
between the parties: who shall sit in the House in
representation of Marinduque, while there is yet no HRET
decision on the qualifications of the Member.

12. As finale, and as explained in the discussion just done,

no unwarranted haste can be attributed, as the dissent does
so, to the resolution of this petition promulgated on 25 June
2013. It was not done to prevent the exercise by the HRET
of its constitutional duty. Quite the contrary, the speedy
resolution of the petition was done to pave the way for the
unimpeded performance by the HRET of its constitutional
role. The petitioner can very well invoke the authority of the
HRET, but not as a sitting member of the House of
Representatives.8

The inhibition of this ponente was moved for. The reason for the
denial of the motion was contained in a letter to the members of
the Court on the understanding that the matter was internal to the
Court. The ponente now seeks the Courts approval to have the
explanation published as it is now appended to this Resolution.

The motion to withdraw petition filed AFTER the Court has acted
thereon, is noted. It may well be in order to remind petitioner that
jurisdiction, once acquired, is not lost upon the instance of the
parties, but continues until the case is terminated.9 When
petitioner filed her Petition for Certiorari jurisdiction vested in the
Court and, in fact, the Court exercised such jurisdiction when it
acted on the petition. Such jurisdiction cannot be lost by the
unilateral withdrawal of the petition by petitioner.
More importantly, the Resolution dated 25 June 2013, being a
valid court issuance, undoubtedly has legal consequences.
Petitioner cannot, by the mere expediency of withdrawing the
petition, negative and nullify the Court's Resolution and its legal
effects. At this point, we counsel petitioner against trifling with
court processes. Having sought the jurisdiction of the Supreme
Court, petitioner cannot withdraw her petition to erase the ruling
adverse to her interests. Obviously, she cannot, as she designed
below, subject to her predilections the supremacy of the law.

WHEREFORE, The Motion for Reconsideration is DENIED. The

dismissal of the petition is affirmed. Entry of Judgment is ordered.

SO ORDERED.

[ G.R. No. 205505. September 29, 2015 ]

ATTY. ISIDRO Q. LICO, RAFAEL A. PUENTESPINA,
PROCULO T. SARMEN, AMELITO L. REVUELTA, WILLIAM C.
YBANEZ, SILVERIO J. SANCHEZ, GLORIA G. FUTALAN,
HILARIO DE GUZMAN, EUGENE M. PABUALAN, RODOLFO
E. PEREZ, HIPOLITO R. QUILLAN, MARIO ARENAS, TIRSO C.
BUENAVENTURA, LYDIA B. TUBELLA, REYNALDO C.
GOLO& JONATHAN DEQUINA IN THEIR INDIVIDUAL
CAPACITIES, AND AS LEGITIMATE MEMBERS AND
OFFICERS OF ADHIKAING TINATAGUYOD NG
KOOPERATIBA (ATING KOOP PARTY LIST), PETITIONERS,
VS. THE COMMISSION ON ELECTIONS EN BANC AND THE
SELF-STYLED SHAM ATING KOOP PARTYLIST
REPRESENTED BY AMPARO T. RIMAS, RESPONDENTS.

DECISION
SERENO, C.J.:
The pivotal and interrelated issues before Us in this case involve
the seemingly elementary matter of the Commission on Elections'
(COMELEC) jurisdiction over the expulsion of a sitting party-list
representative: from the House of Representatives, on the one
hand; and from his party-list organization, on the other.

The instant case involves two rival factions of the same party-list
organization, the Adhikaing Tinataguyod ng Kooperatiba (Ating
Koop). One group is headed by petitioner Atty. Isidro Q. Lico (the
Lico Group), who represents the organization in the House of
Representatives, and the other group by Amparo T. Rimas
(respondents herein, or the Rimas Group).
THE CASE

Before Us is a Petition for Certiorari under Rule 64[1] in relation to

Rule 65,[2] seeking to annul the Resolutions in E.M. No. 12-039
dated 18 July 2012 and 31 January 2013 of the COMELEC.
THE ANTECEDENT FACTS

Ating Koop is a multi-sectoral party-list organization which was

registered on 16 November 2009 under Republic Act (R.A.) No.
7941, also known as the Party-List System Act (Party-List Law).

Under Ating Koop's Constitution and By-Laws, its highest

policymaking body is the National Convention. The Central
Committee, however, takes over when the National Convention is
not in session.[3]

On 30 November 2009, Ating Koop filed its Manifestation of Intent

to Participate in the Party-List System of Representation for the
10 May 2010 Elections.[4] On 6 March 2010, it filed with the
COMELEC the list of its nominees, with petitioner Lico as first
nominee and Roberto Mascarina as second nominee.

On 8 December 2010, COMELEC proclaimed Ating Koop as one

of the winning party-list groups.[5] Based on the procedure
provided in BANAT Party-List v. COMELEC,[6] Ating Koop earned
a seat in the House of Representatives. Petitioner Lico
subsequently took his oath of office on 9 December 2010 before
the Secretary-General of the House of Representatives,[7] and
thereafter assumed office.

Several months prior to its proclamation as one of the winning

party-list organizations, or on 9 June 2010, Ating Koop issued
Central Committee Resolution 2010-01, which incorporated a
term-sharing agreement signed by its nominees.[8] Under the
agreement, petitioner Lico was to serve as Party-list
Representative for the first year of the three-year term.[9]

On 14 May 2011, Ating Koop held its Second National

Convention, during which it introduced amendments to its
Constitution and By-laws. Among the salient changes was the
composition of the Central Committee,[10] which would still be
composed of 15 representatives but with five each coming from
Luzon, Visayas and Mindanao (5-5-5 equal representation).
[11]
The amendments likewise mandated the holding of an election
of Central Committee members within six months after the
Second National Convention.[12]

In effect, the amendments cut short the three-year term of the

incumbent members (referred to hereafter as the Interim Central
Committee) of the Central Committee.[13] The Interim Central
Committee was dominated by members of the Rimas Group.

On 5 December 2011, or almost one year after petitioner Lico had

assumed office, the Interim Central Committee expelled him from
Ating Koop for disloyalty.[14] Apart from allegations of malversation
and graft and corruption, the Committee cited petitioner Lico's
refusal to honor the term-sharing agreement as factual basis for
disloyalty and as cause for his expulsion under Ating Koop's
Amended Constitution and By-laws.[15]
On 8 December 2011, Congressman Lico filed a Motion for
Reconsideration with the Interim Central Committee,[16] which
subsequently denied the same in a Resolution dated 29
December 2011.[17]

While petitioner Lico's Motion for Reconsideration was pending,

the Lico Group held a special meeting in Cebu City (the Cebu
meeting) on 19 December 2011. At the said meeting, new
members of the Central Committee, as well as a new set of
officers, were elected.[18] The election was purportedly held for the
purpose of implementing the 5-5-5 equal representation
amendment made during the Second National Convention.[19]

On 21 January 2012, the Rimas Group held a Special National

Convention in Parañaque City[20] (the Parañaque convention), at
which a new Central Committee and a new set of officers were
constituted.[21] Members of the Rimas Group won the election and
occupied all the corresponding seats.
PROCEEDINGS BEFORE THE COMELEC
SECOND DIVISION

On 16 March 2012, the Rimas Group, claiming to represent Ating

Koop, filed with COMELEC a Petition against petitioner Lico
docketed as E.M. No. 12-039.[22] The said Petition, which was
subsequently raffled to the Second Division, prayed that petitioner
Lico be ordered to vacate the office of Ating Koop in the House of
Representatives, and for the succession of the second nominee,
Roberto Mascarina as Ating Koop's representative in the House.

The Rimas Group thereafter filed an Amended Petition with the

COMELEC on 14 May 2012, this time impleading not only
petitioner Lico but the entire Lico Group. The Amended Petition
also prayed that the COMELEC nullify the election conducted at
the Cebu meeting and recognize the Paranaque convention.

In both the Petition and the Amended Petition, the Rimas Group
alleged that Ating Koop had expelled Congressman Lico for acts
inimical to the party-list group, such as malversation, graft and
corruption, and that he had "boldly displayed his recalcitrance to
honor party commitment to be upright and consistently honest,
thus violating basic principles of the Ating Koop."[23] The Amended
Petition stated further that the Cebu meeting held by the Lico
Group violated notice and quorum requirements.[24]

In a Resolution dated 18 July 2012,[25] the COMELEC Second

Division upheld the expulsion of petitioner Lico from Ating Koop
and declared Mascarina as the duly qualified nominee of the
party-list group.[26] The Second Division characterized the issue of
the validity of the expulsion of petitioner Lico from Ating Koop as
an intra-party leadership dispute, which it could resolve as an
incident of its power to register political parties.[27]
PROCEEDINGS BEFORE THE COMELEC
EN BANC

Consequently, the Lico Group filed a Motion for Reconsideration

from the Second Division's Resolution, which the COMELEC En
Banc denied on 31 January 2013. The dispositive portion of its
Resolution reads:
WHEREFORE, premises considered, the Commission (En
Banc) RESOLVES, as it hereby RESOLVED, to:
a. DISMISS the instant Petition to Expel Respondent Atty. Isidro
Q. Lico in the House of Representatives and to Sanction the
Immediate Succession of the Second Nominee of ATING KOOP
Party List, Mr. Roberto C. Mascarina as its Party Representative,
for lack of jurisdiction;
b. UPHOLD the Expulsion of Respondent Atty. Isidro Lico from
ATING KOOP Party-list Group; [and]

c. UPHOLD the ATING KOOP Party-list Group represented by its

President, Amparo T. Rimas, as the legitimate Party-list Group
accredited by the Commission on Elections, to the exclusion of
respondents Atty. Isidro Q. Lico, Rafael A. Puentespina, Proculo
T. Sarmen, Amelito L. Revuelta, William C. Ybanez, Silverio J.
Sanchez, Gloria G. Futalan, Hilario De Guzman, Eugene M.
Pabualan, Rodolfo E. Perez, Hipolito R. Quillan, Mario Arenas,
Tirso C. Buenaventura, Lydia B. Tubella, and Jonathan Dequina.
[28]

In arriving at its Resolution, the COMELEC En Banc held that it

had no jurisdiction to expel Congressman Lico from the House of
Representatives, considering that his expulsion from Ating Koop
affected his qualifications as member of the House, and therefore
it was the House of Representatives Electoral Tribunal (HRET)
that had jurisdiction over the Petition.

At the same time, the COMELEC upheld the validity of petitioner

Lico's expulsion from Ating Koop, explaining that when the Interim
Central Committee ousted him from Ating Koop, the said
Committee's members remained in hold-over capacity even after
their terms had expired;[29] and that the COMELEC was not in a
position to substitute its judgment for that of Ating Koop with
respect to the cause of the expulsion.[30]

Finally, the COMELEC En Banc recognized the Rimas Group as

the legitimate representative of Ating Koop considering that: 1) it
found nothing in the records to show that the Lico Group made a
valid call for the special election of Central Committee members
as required under the Amended Constitution and By-Laws;[31] 2)
there is nothing on record indicating that a minimum of 100
attended the Cebu meeting;[32] and 3) the Parañaque convention
was in accordance with Ating Koop's Amended Constitution and
By-Laws.[33]

Hence, this Petition: the Lico Group now comes before Us,
praying for a review of the COMELEC Resolutions.
The Court's Ruling

On the COMELEC's jurisdiction over

the expulsion of a Member of the House
of Representatives from his party-list
organization

We find that while the COMELEC correctly dismissed the Petition

to expel petitioner Lico from the House of Representatives for
being beyond its jurisdiction, it nevertheless proceeded to rule
upon the validity of his expulsion from Ating Koop - a matter
beyond its purview.

The COMELEC notably characterized the Petition for expulsion of

petitioner Lico from the House of Representatives and for the
succession of the second nominee as party-list representative as
a disqualification case. For this reason, the COMELEC dismissed
the petition for lack of jurisdiction, insofar as it relates to the
question of unseating petitioner Lico from the House of
Representatives.

Section 17, Article VI of the 1987 Constitution[34] endows the

HRET with jurisdiction to resolve questions on the qualifications of
members of Congress. In the case of party-list representatives,
the HRET acquires jurisdiction over a disqualification case upon
proclamation of the winning party-list group, oath of the nominee,
and assumption of office as member of the House of
Representatives.[35] In this case, the COMELEC proclaimed Ating
Koop as a winning party-list group; petitioner Lico took his oath;
and he assumed office in the House of Representatives. Thus, it
is the HRET, and not the COMELEC, that has jurisdiction over the
disqualification case.

What We find to be without legal basis, however, is the action of

the COMELEC in upholding the validity of the expulsion of
petitioner Lico from Ating Koop, despite its own ruling that the
HRET has jurisdiction over the disqualification issue. These
findings already touch upon the qualification requiring a party-list
nominee to be a bona fide member of the party-list group sought
to be represented.

The COMELEC justified its Resolution on the merits of the

expulsion, by relying on the rule that it can decide intra-party
matters as an incident of its constitutionally granted powers and
functions. It cited Lokin v. COMELEC, where We held that when
the resolution of an intra-party controversy is necessary or
incidental to the performance of the constitutionally-granted
functions of the COMELEC, the latter can step in and exercise
jurisdiction over the intra-party matter.[36] The Lokin case,
however, involved nominees and not incumbent members of
Congress. In the present case, the fact that petitioner Lico was a
member of Congress at the time of his expulsion from Ating Koop
removes the matter from the jurisdiction of the COMELEC.

The rules on intra-party matters and on the jurisdiction of the

HRET are not parallel concepts that do not intersect. Rather, the
operation of the rule on intra-party matters is circumscribed by
Section 17 of Article VI of the 1987 Constitution and jurisprudence
on the jurisdiction of electoral tribunals. The jurisdiction of the
HRET is exclusive. It is given full authority to hear and decide the
cases on any matter touching on the validity of the title of the
proclaimed winner.[37]
In the present case, the Petition for petitioner Lico's expulsion
from the House of Representatives is anchored on his expulsion
from Ating Koop, which necessarily affects his title as member of
Congress. A party-list nominee must have been, among others,
a bona fide member of the party or organization for at least ninety
(90) days preceding the day of the election.[38] Needless to
say, bona fide membership in the party-list group is
a continuing qualification. We have ruled that qualifications for
public office, whether elective or not, are continuing requirements.
They must be possessed not only at the time of appointment or
election, or of assumption of office, but during the
officer's entire tenure.[39]

This is not the first time that this Court has passed upon the issue
of HRET jurisdiction over the requirements for bona
fide membership in a party-list organization. In Abayon v. HRET,
[40]
it was argued that the petitioners did not belong to the
marginalized and under-represented sectors that they should
represent; as such, they could not be properly considered bona
fide members of their respective party-list organizations. The
Court held that it was for the HRET to interpret the meaning of the
requirement of bona fide membership in a party-list organization.
It reasoned that under Section 17, Article VI of the Constitution,
the HRET is the sole judge of all contests when it comes to
qualifications of the members of the House of
Representatives.[41]

Consequently, the COMELEC failed to recognize that the issue

on the validity of petitioner Lico's expulsion from Ating Koop is
integral to the issue of his qualifications to sit in Congress. This is
not merely an error of law but an error of jurisdiction correctible by
a writ of certiorari;[42] the COMELEC should not have encroached
into the expulsion issue, as it was outside its authority to do so.

Distinguished from Reyes v. COMELEC

Our ruling here must be distinguished from Regina Ongsiako
Reyes v. Commission on Elections.[43] In that case, We upheld the
disqualification by the COMELEC of petitioner Reyes, even as
she was already proclaimed winner in the elections at the time
she filed her petition with the High Court. In doing so, We rejected
the argument that the case fell within the exclusive jurisdiction of
the HRET.

In Reyes, the petitioner was proclaimed winner of the 13 May

2013 Elections, and took her oath of office before the Speaker of
the House of Representatives. However, the Court ruled on her
qualifications since she was not yet a member of the House of
Representatives: petitioner Reyes had yet to assume office, the
term of which would officially start at noon of 30 June 2013, when
she filed a Petition for Certiorari with Prayer for Temporary
Restraining Order and/or Preliminary Injunction and/or Status Quo
Ante Order dated 7 June 2013 assailing the Resolutions ordering
the cancellation of her Certificate of Candidacy. In the present
case, all three requirements of proclamation, oath of office, and
assumption of office were satisfied.

Moreover, in Reyes, the COMELEC En Banc Resolution

disqualifying petitioner on grounds of lack of Filipino citizenship
and residency had become final and executory when petitioner
elevated it to this Court.[44] It should be mentioned that when
petitioner Reyes filed her petition with the Court, the
COMELEC En Banc had, as early as 5 June 2013, already issued
a Certificate of Finality over its 14 May 2013 Resolution
disqualifying her. Therefore, there was no longer any pending
case on the qualifications of petitioner Reyes to speak of. Here,
the question of whether petitioner Lico remains a member of the
House of Representatives in view of his expulsion from Ating
Koop is a subsisting issue.
Finally, in Reyes, We found the question of jurisdiction of the
HRET to be a non-issue, since the recourse of the petitioner to
the Court appeared to be a mere attempt to prevent the
COMELEC from implementing a final and executory judgment.
We said that the petitioner therein took an inconsistent, if not
confusing, stance, considering that she sought remedy before the
Court, and yet asserted that it is the HRET which had jurisdiction
over the case.[45] In this case, the question on the validity of
petitioner Lico's expulsion from Ating Koop is a genuine issue that
falls within the jurisdiction of the HRET, as it unmistakably affects
his qualifications as party-list representative.

On which group legitimately represents

Ating Koop

We now pass upon the question of which, between the two

contending groups, is the legitimate leadership of Ating Koop.

At the outset, We reject the Lico Group's argument that the

COMELEC has no jurisdiction to decide which of the feuding
groups is to be recognized, and that it is the Regional Trial Court
which has jurisdiction over intra-corporate controversies. Indeed,
the COMELECs jurisdiction to settle the struggle for leadership
within the party is well established. This power to rule upon
questions of party identity and leadership is exercised by the
COMELEC as an incident of its enforcement powers.[46]

That being said, We find the COMELEC to have committed grave

abuse of discretion in declaring the Rimas Group as the legitimate
set of Ating Koop officers for the simple reason that the
amendments to the Constitution and By-laws of Ating Koop
were not registered with the COMELEC. Hence, neither of the
elections held during the Cebu meeting and the Paranaque
conference pursuant to the said amendments, were valid.
Both the Lico Group and the Rimas Group indeed assert that their
respective elections were conducted pursuant to the amendment
introduced in the Second National Convention held on 14 May
2011. In particular, Section 1 of Article VI of Ating Koop's By-laws
called for the conduct of an election of Central Committee
members within six months after the Second National Convention.
[47]

There is no showing, however, that the amendments were

actually filed with the COMELEC.

A party-list organization owes its existence to the State and the

latter's approval must be obtained through its agent, the
COMELEC. In the 2013 case of Dayao v. COMELEC,[48] We
declared that it is the State, acting through the COMELEC, that
breathes life to a party-list organization. The implication,
therefore, is that the State, through the COMELEC, is a party to
the principal contracts entered into by the party-list organization
and its members - the Constitution and By-laws - such that any
amendment to these contracts would constitute a novation
requiring the consent of all the parties involved. An amendment to
the bylaws of a party-list organization should become effective
only upon approval by the COMELEC.

Such a prerequisite is analogous to the requirement of filing of the

amended by-laws and subsequent conformity thereto of the
Securities and Exchange Commission (SEC) under corporation
law. Under the Corporation Code, an amendment to a by-law
provision must be filed with the SEC. The amendment shall be
effective only upon the issuance by the SEC of a certification that
it is not inconsistent with the Corporation Code.[49]

There being no showing that the amendments on the by-laws of

Ating Koop were filed with and subsequently approved by the
COMELEC, any election conducted pursuant thereto may not be
considered valid. Without such requisite proof, neither the Lico
Group nor the Rimas Group can claim to be the legitimate set of
officers of Ating Koop.

Even assuming arguendo that the amendment calling for a

special election were effective, this Court still cannot declare any
of the feuding groups as the legitimate set of officers considering
that the respective sets of evidence presented were evenly
balanced. With respect to the Lico Group's Cebu meeting, the
COMELEC correctly found - and the records bear out - that the
notices sent were deficient and that there was no sufficient proof
of quorum. Hence, the Cebu meeting was held to be invalid. On
the other hand, the COMELEC failed to appreciate the fact that
the Paranaque convention suffered from the same infirmity, the
records of the said convention, consisting merely of the Minutes
thereof, likewise fail to establish due notice and a quorum.[50]

Accordingly, as neither group can sufficiently lay claim to

legitimacy, the equipoise doctrine comes into play. This rule
provides that when the evidence in an issue of fact is in
equipoise, that is, when the respective sets of evidence of both
parties are evenly balanced, the party having the burden of proof
fails in that issue. Since neither party succeeds in making out a
case, neither side prevails. The courts are left with no other option
but to leave them as they are. The consequence, therefore, is the
dismissal of the complaint/petition.[51]

The Rimas Group, being the petitioner before the COMELEC, had
the burden of proving that it is the petitioner, and not the Lico
Group, that is the legitimate group. As the evidence of both
parties are in equipoise, the Rimas Group failed to discharge its
burden. The COMELEC should have dismissed the petition of the
Rimas Group insofar as it sought to be declared the legitimate
group representing Ating Koop.
Yet, the COMELEC held that the Paranaque convention
"appeared to be in conformity" with Ating Koop's Amended
Constitution and By-Laws.[52] It should be stressed that the
COMELEC did not even substantiate this conclusion.[53]

The Court ordinarily refrains from reviewing the COMELEC s

appreciation and evaluation of the evidence.[54] But when the
COMELECs assessment of the evidence is so grossly
unreasonable that it turns into an error of jurisdiction, the Court is
compelled to intervene and correct the error.[55]

As seen in the above discussions, neither of the parties was able

to establish its legitimacy. The evaluation of the evidence by the
COMELEC in deciding the issue of which group legitimately
represents Ating Koop was therefore grossly unreasonable, which
amounts to a jurisdictional error that may be remedied by
certiorari under Rule 65.

The final, and most important question to be addressed is: if

neither of the two groups is the legitimate leadership of Ating
Koop, then who is?

We find such legitimate leadership to be the Interim Central

Committee, whose members remain as such in a hold-over
capacity.

In Seneres v. COMELEC,[56] the validity of the Certificate of

Nomination filed by Buhay Party-List through its President, Roger
Robles, was questioned on the ground that his term had expired
at the time it was filed. The Court applied by analogy the default
rule in corporation law to the effect that officers and directors of a
corporation hold over after the expiration of their terms until such
time as their successors are elected or appointed.
[57]
Señeres ruled that the hold-over principle applies in the
absence of a provision in the constitution or by-laws of the party-
list organization prohibiting its application.

In the present case, We have gone through the Constitution and

Bylaws of Ating Koop and We do not see any provision forbidding,
either expressly or impliedly, the application of the hold-over rule.
Thus, in accordance with corporation law, the existing Interim
Central Committee is still a legitimate entity with full authority to
bind the corporation and to carry out powers despite the lapse of
the term of its members on 14 November 2011, since no
successors had been validly elected at the time, or since.

WHEREFORE, premises considered, the Petition is GRANTED.

The COMELEC En Banc Resolution dated 31 January 2013 and
the COMELEC Second Division Resolution dated 18 July 2012 in
E.M. No. 12-039 are hereby ANNULLED and SET ASIDE insofar
as it declares valid the expulsion of Congressman Lico from Ating
Koop and it upholds the ATING KOOP Party-list Group
represented by its President, Amparo T. Rimas, as the legitimate
Party-list Group.

A new one is entered DECLARING that the legitimate Central

Committee and set of officers legitimately representing Ating
Koop are the Interim Central Committee and set of officers prior to
the split of Ating Koop.

SO ORDERED.

G.R. No. 193808 June 26, 2012

LUISK. LOKIN, JR. and TERESITA F. PLANAS, Petitioners,

vs.
COMMISSION ON ELECTIONS (COMELEC), CITIZENS’
BATTLE AGAINST CORRUPTION PARTY LIST represented
by VIRGINIA S. JOSE SHERWIN N. TUGNA, and CINCHONA
CRUZ-GONZALES, Respondents,
 DECISION

SERENO, J.:

The present petition having been flied beyond the reglementary

period, Rule 64 of the Rules of Court compels a dismissal on this
basis alone. Despite petitioner's inexplicable disregard of basic
concepts, this Court deems it appropriate to reiterate the specific
procedure for the review of judgments made by the Commission
on Elections (COMELEC) as laid down in Rule 64, and how it is
differentiated from the more general remedy afforded by Rule 65.

On 5 July 2010, the COMELEC First Division issued a

Resolution1 expunging the Certificate of Nomination which
included herein petitioners as representatives of the party-list
group known as Citizens’ Battle Against Corruption (CIBAC). The
COMELEC en banc affirmed the said Resolution, prompting Luis
Lokin, Jr. and Teresita F. Planas to file the present Petition for
Certiorari. Petitioners allege grave abuse of discretion on the part
of the COMELEC in issuing both Resolutions, praying that they be
recognized as the legitimate nominees of CIBAC party-list, and
that petitioner Lokin, Jr. be proclaimed as the CIBAC party-list
representative to the House of Representatives.

Respondent CIBAC party-list is a multi-sectoral party

registered2 under Republic Act No. (R.A.) 7941, otherwise known
as the Party- List System Act. As stated in its constitution and
bylaws, the platform of CIBAC is to fight graft and corruption and
to promote ethical conduct in the country’s public service.3 Under
the leadership of the National Council, its highest policymaking
and governing body, the party participated in the 2001, 2004, and
2007 elections.4 On 20 November 2009, two different entities,
both purporting to represent CIBAC, submitted to the COMELEC
a "Manifestation of Intent to Participate in the Party-List System of
Representation in the May 10, 2010 Elections." The first
Manifestation5 was signed by a certain Pia B. Derla, who claimed
to be the party’s acting secretary-general. At 1:30 p.m. of the
same day, another Manifestation6 was submitted by herein
respondents Cinchona Cruz-Gonzales and Virginia Jose as the
party’s vice-president and secretary-general, respectively.

On 15 January 2010, the COMELEC issued Resolution No.

87447 giving due course to CIBAC’s Manifestation, "WITHOUT
PREJUDICE …TO the determination which of the two factions of
the registered party-list/coalitions/sectoral organizations which
filed two (2) manifestations of intent to participate is the official
representative of said party-list/coalitions/sectoral organizations
xxx."8

On 19 January 2010, respondents, led by President and

Chairperson Emmanuel Joel J. Villanueva, submitted the
Certificate of Nomination9 of CIBAC to the COMELEC Law
Department. The nomination was certified by Villanueva and
Virginia S. Jose. On 26 March 2010, Pia Derla submitted a
second Certificate of Nomination,10 which included petitioners Luis
Lokin, Jr. and Teresita Planas as party-list nominees. Derla
affixed to the certification her signature as "acting secretary-
general" of CIBAC.

Claiming that the nomination of petitioners Lokin, Jr. and Planas

was unauthorized, respondents filed with the COMELEC a
"Petition to Expunge From The Records And/Or For
Disqualification," seeking to nullify the Certificate filed by Derla.
Respondents contended that Derla had misrepresented herself as
"acting secretary-general," when she was not even a member of
CIBAC; that the Certificate of Nomination and other documents
she submitted were unauthorized by the party and therefore
invalid; and that it was Villanueva who was duly authorized to file
the Certificate of Nomination on its behalf.11

In the Resolution dated 5 July 2010, the COMELEC First Division

granted the Petition, ordered the Certificate filed by Derla to be
expunged from the records, and declared respondents’ faction as
the true nominees of CIBAC.12 Upon Motion for Reconsideration
separately filed by the adverse parties, the COMELEC en
banc affirmed the Division’s findings. In a per curiam Resolution
dated 31 August 2010,13 the Commission reiterated that Pia Derla
was unable to prove her authority to file the said Certificate,
whereas respondents presented overwhelming evidence that
Villanueva deputized CIBAC Secretary General Virginia Jose to
submit the Certificate of Nomination pursuant to CIBAC’s
Constitution and bylaws.

Petitioners now seek recourse with this Court in accordance with

Rules 64 and 65 of the Rules of Court, raising these issues: I)
Whether the authority of Secretary General Virginia Jose to file
the party’s Certificate of Nomination is an intra-corporate matter,
exclusively cognizable by special commercial courts, and over
which the COMELEC has no jurisdiction; and II) Whether the
COMELEC erred in granting the Petition for Disqualification and
recognizing respondents as the properly authorized nominees of
CIBAC party-list.

As earlier stated, this Court denies the petition for being filed
outside the requisite period. The review by this Court of
judgments and final orders of the COMELEC is governed
specifically by Rule 64 of the Rules of Court, which states:

Sec. 1. Scope. This rule shall govern the review of judgments and
final orders or resolutions of the Commission on Elections and the
Commission on Audit.

Sec. 2. Mode of review. A judgment or final order or resolution of

the Commission on Elections and the Commission on Audit may
be brought by the aggrieved party to the Supreme Court on
certiorari under Rule 65, except as hereinafter provided.
The exception referred to in Section 2 of this Rule refers precisely
to the immediately succeeding provision, Section 3
thereof,14 which provides for the allowable period within which to
file petitions for certiorari from judgments of both the COMELEC
and the Commission on Audit. Thus, while Rule 64 refers to the
same remedy of certiorari as the general rule in Rule 65, they
cannot be equated, as they provide for different reglementary
periods.15 Rule 65 provides for a period of 60 days from notice of
judgment sought to be assailed in the Supreme Court, while
Section 3 expressly provides for only 30 days, viz:

SEC. 3. Time to file petition.—The petition shall be filed within

thirty (30) days from notice of the judgment or final order or
resolution sought to be reviewed. The filing of a motion for new
trial or reconsideration of said judgment or final order or
resolution, if allowed under the procedural rules of the
Commission concerned, shall interrupt the period herein fixed. If
the motion is denied, the aggrieved party may file the petition
within the remaining period, but which shall not be less than five
(5) days in any event, reckoned from notice of denial.

Petitioner received a copy of the first assailed Resolution on 12

July 2010. Upon the Motion for Reconsideration filed by
petitioners on 15 July 2010, the COMELEC en banc issued the
second assailed Resolution on 31 August 2010. This per curiam
Resolution was received by petitioners on 1 September
2010.16 Thus, pursuant to Section 3 above, deducting the three
days it took petitioners to file the Motion for Reconsideration, they
had a remaining period of 27 days or until 28 September 2010
within which to file the Petition for Certiorari with this Court.

However, petitioners filed the present Petition only on 1 October

2010, clearly outside the required period. In Pates v. Commission
on Elections and Domingo v. Commission on Elections,17 we have
established that the fresh-period rule used in Rule 65 does not
similarly apply to the timeliness of petitions under Rule 64. In
Pates, this Court dismissed the

Petition for Certiorari on the sole ground that it was belatedly filed,
reasoning thus:

x x x. While it is true that a litigation is not a game of

technicalities, it is equally true that every case must be
prosecuted in accordance with the prescribed procedure to
ensure an orderly and speedy administration of justice. There
have been some instances wherein this Court allowed a
relaxation in the application of the rules, but this flexibility was
"never intended to forge a bastion for erring litigants to violate the
rules with impunity."

xxx xxx xxx

Under this unique nature of the exceptions, a party asking for the
suspension of the Rules of Court comes to us with the heavy
burden of proving that he deserves to be accorded exceptional
treatment. Every plea for a liberal construction of the Rules must
at least be accompanied by an explanation of why the party-
litigant failed to comply with the rules and by a justification for the
requested liberal construction.

xxx xxx xxx

x x x. Section 3, Article IX-C of the Constitution expressly requires

that the COMELEC’s rules of procedure should expedite the
disposition of election cases. This Court labors under the same
command, as our proceedings are in fact the constitutional
extension of cases that start with the COMELEC.

Based on these considerations, we do not find convenience and

uniformity to be reasons sufficiently compelling to modify the
required period for the filing of petitions for certiorari under Rule
64. While the petitioner is correct in his historical data about the
Court’s treatment of the periods for the filing of the different
modes of review, he misses out on the reason why the period
under Section 3, Rule 64 has been retained. The reason, as
made clear above, is constitutionally-based and is no less than
the importance our Constitution accords to the prompt
determination of election results.18 x x x. (Emphasis supplied,
footnotes omitted.)

In this case, petitioners do not even attempt to explain why the

Petition was filed out of time. Clearly, they are aware of the
applicable period for filing, as they themselves invoke the remedy
under Rule 64 in conjunction with Rule 65. Hence, there is no
acceptable reason for their failure to comply with the proper
procedure. But even if this Court were to apply liberality and take
cognizance of the late Petition, the arguments therein are
flawed. The COMELEC has jurisdiction over cases pertaining
to party leadership and the nomination of party-list
representatives.

Petitioners contend that the COMELEC never should have taken

cognizance of respondents’ Petition to Expunge and/or for
Disqualification. They have reached this conclusion by
characterizing the present matter as an intra-corporate dispute
and, thus, cognizable only by special commercial courts,
particularly the designated commercial court in this case, the
Regional Trial Court in Pasig City.19 Pia Derla purportedly filed the
Certificate of Nomination pursuant to the authority granted by the
Board of Trustees of the "CIBAC Foundation, Inc.," the non-stock
entity that is registered with the Securities and Exchange
Commission (SEC).20

Thus, petitioners insist that the group that participated in the

party-list system in the 2004 and 2007 elections was the SEC-
registered entity, and not the National Council, which had
allegedly become defunct since 2003. That was the year when
CIBAC Foundation, Inc. was established and registered with the
SEC.21 On the other hand, respondents counter that the
foundation was established solely for the purpose of acting as
CIBAC’s legal and financial arm, as provided by the party’s
Constitution and bylaws. It was never intended to substitute for, or
oust CIBAC, the party-list itself.22

Even as petitioners insisted on the purely intra-corporate nature of

the conflict between "CIBAC Foundation" and the CIBAC Sectoral
Party, they submitted their Certificate of Nomination and
Manifestation of Intent to participate in the party-list elections.
Precisely, petitioners were seeking the COMELEC’s approval of
their eligibility to participate in the upcoming party-list elections. In
effect, they invoke its authority under the Party-List System
Act.23 Contrary to their stance that the present dispute stemmed
from an intra-corporate matter, their submissions even recognize
the COMELEC’s constitutional power to enforce and administer
all laws relative to the conduct of an election, plebiscite, initiative,
referendum, and recall.24 More specifically, as one of its
constitutional functions, the COMELEC is also tasked to "register,
after sufficient publication, political parties, organizations, or
coalitions which, in addition to other requirements, must present
their platform or program of government."25

In any case, the COMELEC’s jurisdiction to settle the struggle for

leadership within the party is well established. This singular power
to rule upon questions of party identity and leadership is
exercised by the COMELEC as an incident to its enforcement
powers. In Laban ng Demokratikong Pilipino v. Commission on
Elections,26 the Court held:

x x x. Corollary to the right of a political party "to identify the

people who constitute the association and to select a standard
bearer who best represents the party’s ideologies and preference"
is the right to exclude persons in its association and to not lend its
name and prestige to those which it deems undeserving to
represent its ideals. A certificate of candidacy makes known to the
COMELEC that the person therein mentioned has been
nominated by a duly authorized political group empowered to act
and that it reflects accurately the sentiment of the nominating
body. A candidate’s political party affiliation is also printed
followed by his or her name in the certified list of candidates. A
candidate misrepresenting himself or herself to be a party’s
candidate, therefore, not only misappropriates the party’s name
and prestige but foists a deception upon the electorate, who may
unwittingly cast its ballot for him or her on the mistaken belief that
he or she stands for the party’s principles. To prevent this
occurrence, the COMELEC has the power and the duty to step in
and enforce the law not only to protect the party but, more
importantly, the electorate, in line with the Commission’s broad
constitutional mandate to ensure orderly elections.27 (Emphasis
supplied.)

Similar to the present case, Laban delved into the issue of

leadership for the purpose of determining which officer or member
was the duly authorized representative tasked with filing the
Certificate of Nomination, pursuant to its Constitution and bylaws,
to wit:

The only issue in this case, as defined by the COMELEC itself, is

who as between the Party Chairman and the Secretary General
has the authority to sign certificates of candidacy of the official
candidates of the party. Indeed, the petitioners’ Manifestation and
Petition before the

COMELEC merely asked the Commission to recognize only those

certificates of candidacy signed by petitioner Sen. Angara or his
authorized representative, and no other.28
In the 2010 case Atienza v. Commission on Elections,29 it was
expressly settled that the COMELEC possessed the authority to
resolve intra-party disputes as a necessary tributary of its
constitutionally mandated power to enforce election laws and
register political parties. The Court therein cited Kalaw v.
Commission on Elections and Palmares v. Commission on
Elections, which uniformly upheld the COMELEC’s jurisdiction
over intra-party disputes:

The COMELEC’s jurisdiction over intra-party leadership disputes

has already been settled by the Court. The Court ruled in Kalaw v.
Commission on Elections that the COMELEC’s powers and
functions under Section 2, Article IX-C of the Constitution,
"include the ascertainment of the identity of the political party and
its legitimate officers responsible for its acts." The Court also
declared in another case that the COMELEC’s power to register
political parties necessarily involved the determination of the
persons who must act on its behalf. Thus, the COMELEC may
resolve an intra-party leadership dispute, in a proper case brought
before it, as an incident of its power to register political parties.30

Furthermore, matters regarding the nomination of party-list

representatives, as well as their individual qualifications, are
outlined in the Party-List System Law. Sections 8 and 9 thereof
state: Sec. 8. Nomination of Party-List Representatives. Each
registered party, organization or coalition shall submit to the
COMELEC not later than forty-five (45) days before the election a
list of names, not less than five (5), from which party-list
representatives shall be chosen in case it obtains the required
number of votes.

A person may be nominated in one (1) list only. Only persons who
have given their consent in writing may be named in the list. The
list shall not include any candidate for any elective office or a
person who has lost his bid for an elective office in the
immediately preceding election. No change of names or alteration
of the order of nominees shall be allowed after the same shall
have been submitted to the COMELEC except in cases where the
nominee dies, or withdraws in writing his nomination, becomes
incapacitated in which case the name of the substitute nominee
shall be placed last in the list. Incumbent sectoral representatives
in the House of Representatives who are nominated in the party-
list system shall not be considered resigned.

Sec. 9. Qualifications of Party-List Nominees. No person shall be

nominated as party-list representative unless he is a natural-born
citizen of the Philippines, a registered voter, a resident of the
Philippines for a period of not less than one (1)year immediately
preceding the day of the election, able to read and write, a bona
fide member of the party or organization which he seeks to
represent for at least ninety (90) days preceding the day of the
election, and is at least twenty-five (25) years of age on the day of
the election.

By virtue of the aforesaid mandate of the Party-List Law vesting

the COMELEC with jurisdiction over the nomination of party-list
representatives and prescribing the qualifications of each
nominee, the COMELEC promulgated its "Rules on
Disqualification Cases Against Nominees of Party-List Groups/
Organizations Participating in the 10 May 2010 Automated
National and Local Elections."31 Adopting the same qualifications
of party-list nominees listed above, Section 6 of these Rules also
required that:

The party-list group and the nominees must submit documentary

evidence in consonance with the Constitution, R.A. 7941 and
other laws to duly prove that the nominees truly belong to the
marginalized and underrepresented sector/s, the sectoral party,
organization, political party or coalition they seek to represent,
which may include but not limited to the following:
 a. Track record of the party-list group/organization showing
active participation of the nominee/s in the undertakings of
the party-list group/organization for the advancement of the
marginalized and underrepresented sector/s, the sectoral
party, organization, political party or coalition they seek to
represent;

b. Proofs that the nominee/s truly adheres to the advocacies

of the party-list group/organizations (prior declarations,
speeches, written articles, and such other positive actions on
the part of the nominee/s showing his/her adherence to the
advocacies of the party-list group/organizations);

c. Certification that the nominee/s is/are a bona fide member

of the party-list group/ organization for at least ninety (90)
days prior to the election; and

d. In case of a party-list group/organization seeking

representation of the marginalized and underrepresented
sector/s, proof that the nominee/s is not only an advocate of
the party-list/organization but is/are also a bona fide
member/s of said marginalized and underrepresented
sector.

The Law Department shall require party-list group and nominees

to submit the foregoing documentary evidence if not complied
with prior to the effectivity of this resolution not later than three (3)
days from the last day of filing of the list of nominees.

Contrary to petitioners’ stance, no grave abuse of discretion is

attributable to the COMELEC First Division and the COMELEC en
banc.1âwphi1 The tribunal correctly found that Pia Derla’s alleged
authority as "acting secretary-general" was an unsubstantiated
allegation devoid of any supporting evidence. Petitioners did not
submit any documentary evidence that Derla was a member of
CIBAC, let alone the representative authorized by the party to
submit its Certificate of Nomination.32 The COMELEC ruled:

A careful perusal of the records readily shows that Pia B. Derla,

who has signed and submitted, as the purported Acting Secretary
General of CIBAC, the Certificates of Nomination of Respondents,
has no authority to do so. Despite Respondents’ repeated claim
that Ms. Derla is a member and officer of CIBAC, they have not
presented any proof in support of the same. We are at a loss as
to the manner by which Ms. Derla has assumed the post, and We
see nothing but Respondents’ claims and writings/certifications by
Ms. Derla herself that point to that alleged fact. Surely, We cannot
rely on these submissions, as they are the very definition of self-
serving declarations.

On the other hand…We cannot help but be convinced that it was

Emmanuel Joel J. Villanueva, as the Party President and
Chairman, who had been given the sole authority, at least for the
10 May 2010 Elections, to submit the list of nominees for the
Party. The records would show that, in accordance with the
Party’s Constitution and by-laws, its National Council, the highest
policymaking and governing body of the Party, met on 12
November 2009 and there being a quorum, then proceeded to
elect its new set of officers, which included Mr. Villanueva as both
Party President and Party Chairman, and Virginia S. Jose as
Party Secretary General. During the same meeting, the Party’s
New Electoral Congress, which as per the CIBAC’s Constitution
and By-Laws, was also composed of the National Council
Members and had the task of choosing the nominees for the Party
in the Party-List Elections, unanimously ruled to delegate to the
Party President such latter function. This set of facts, which had
not been belied by concrete contrary evidence, weighed heavily
against Respondents and favorably for Petitioner.33
Pia Derla, who is not even a member of CIBAC, is thus a virtual
stranger to the party-list, and clearly not qualified to attest to
petitioners as CIBAC nominees, or certify their nomination to the
COMELEC. Petitioners cannot use their registration with the SEC
as a substitute for the evidentiary requirement to show that the
nominees, including Derla, are bona fide members of the party.
Petitioners Planas and Lokin, Jr. have not even presented
evidence proving the affiliation of the so-called Board of Trustees
to the CIBAC Sectoral Party that is registered with COMELEC.

Petitioners cannot draw authority from the Board of Trustees of

the SEC-registered entity, because the Constitution of CIBAC
expressly mandates that it is the National Council, as the
governing body of CIBAC, that has the power to formulate the
policies, plans, and programs of the Party, and to issue decisions
and resolutions binding on party members and officers.34 Contrary
to petitioners’ allegations, the National Council of CIBAC has not
become defunct, and has certainly not been replaced by the
Board of Trustees of the SEC-registered entity. The COMELEC
carefully perused the documents of the organization and outlined
the process followed by the National Council before it complied
with its task of choosing the party’s nominees.This was based on
the "Minutes of Meeting of CIBAC Party-List National Council"
held on 12 November 2009, which respondents attached to their
Memorandum.35

For its part, the COMELEC en banc also enumerated the

documentary evidence that further bolstered respondents’ claim
that it is Chairman Villanueva and Secretary General Virginia
Jose who were duly authorized to submit the Certificate of
Nomination to the COMELEC.36 These include:

a. The Joint Affidavit of Resolutions of the CIBAC National

Council and the National Electoral Congress of CIBAC dated
12 November 2009;
 b. Certificate of Deputization and Delegation of Authority
issued to CIBAC Secretary-General Virginia S. Jose by the
CIBAC President;

c. Constitution and By-Laws of CIBAC as annexed to its

Petition for Registration as Sectoral Organization Under the
Party-List System filed by CIBAC on 13 November 2000;
and

d. Manifestation dated 8 January 2010 by CIBAC’s Secretary

General Virginia S. Jose providing the official list of officers
of CIBAC.37

WHEREFORE , finding no grave abuse of discretion on the part

of the COMELEC in issuing the assailed Resolutions, the instant
Petition is DISMISSED. This Court AFFIRMS the judgment of the
COMELEC expunging from its records the Certificate of
Nomination filed on 26 March 2010 by Pia B. Derla. The
nominees, as listed in the Certificate of Nomination filed on 19
January 2010 by Emmanuel Joel J. Villanueva, President and
Chairman of Citizens’ Battle Against Corruption (CIBAC) Party
List, are recognized as the legitimate nominees of the said party.

SO ORDERED.

omeo M. Estrella vs. COMMISSION ON ELECTIONS G.R. No.

160465. May 27, 2004. CARPIO MORALES, J p:||

DOCTRINE:

The COMELEC En Banc shall decide a case or matter brought

before it by a majority vote of “all its members,” and NOT
majority of the members who deliberated and voted thereon.

FACTS:
(This case stemmed from the case of Romeo Estrella vs.
Rolando Salvador: Rolando Salvador was proclaimed winner in
a mayoralty race in May 14, 2001 elections. His opponent, Romeo
Estrella, filed before Regional Trial Court (RTC) an election
protest which consequently annulled Salvador‘s proclamation and
declared Estrella as the duly elected mayor and eventually issued
writ of execution.)

In this case, Petitioner Romeo M. Estrella sought the

nullification of the Status Quo Ante Order issued by
the Commission on Elections (COMELEC) En Banc in “Romeo
M. Estrella v. Rolando F. Salvador,” directing the “parties to
maintain the status quo ante order, which is the condition
prevailing before the issuance” by the Regional Trial Court of
Malolos of a writ of execution for the enforcement of said court’s
decision declaring petitioner as the duly elected mayor of Baliwag,
Bulacan.

In the issuance of the questioned COMELEC En Banc Status

Quo Ante Order, five (5) of the then incumbent seven 7 members
of the COMELEC participated: Commissioners Benjamin Abalos,
Sr., Luzviminda Tangcangco, Rufino S.B. Javier, Resurreccion Z.
Borra and Ralph C. Lantion.

Commissioners Abalos, Tangcangco, Javier and Lantion voted for

the issuance of said order, while Commissioner Borra dissented.

In the COMELEC En Banc Status Quo Ante Order, Commissioner

Lantion stated in his handwriting that “his previous voluntary
inhibition is only in the SPR cases and not in the EAC” and that
“as further agreed in the Second Division, [he] will not participate
in the Division deliberations but will vote when the case is
elevated [to the] en banc.”
In this Court’s Resolution, now the subject of private respondent’s
Motion for Reconsideration, it was held that:

Commissioner Lantion’s voluntary piecemeal inhibition cannot

be countenanced. Nowhere in the COMELEC Rules does it allow
a Commissioner to voluntarily inhibit with reservation. To allow
him to participate in theEn Banc proceedings when he previously
inhibited himself in the Division is, absent any satisfactory
justification, not only judicially unethical but legally improper
and absurd.

Since Commissioner Lantion could not participate and vote in the

issuance of the questioned order, thus leaving three (3) members
concurring therewith, the necessary votes of four (4) or majority of
the members of the COMELEC was not attained. The order thus
failed to comply with the number of votes necessary for the
pronouncement of a decision or order, as required under Rule
3, Section 5(a) of the COMELEC Rules of Procedure.

In seeking a reconsideration of the above-quoted Resolution,

private respondent cites Cua v. Commission on Elections, which
provides three (3) votes would have been sufficient to constitute a
majority to carry the decision of the COMELEC En Banc as
provided by the Constitution and the appropriate rules.

ISSUE:

Whether or not cases filed before the COMELEC should be

decided by a majority vote of all it’s members.

HELD:
YES. Section 5(a) of the COMELEC Rules of Procedure was lifted
from Section 7, Article IX-A of the Constitution which provides:

SECTION 7. Each Commission shall decide by a majority

vote of all its members any case or matter brought before it
within sixty days from the date of its submission for decision or
resolution. . . . (Emphasis and italics supplied)

The provision of the Constitution is clear that it should be the

majority vote of all its members and not only those who
participated and took part in the deliberations. Under the rules of
statutory construction, it is to be assumed that the words in which
constitutional provisions are couched express the objective
sought to be attained. 5 Since the above-quoted constitutional
provision states “all of its members,” without any qualification, it
should be interpreted as such.

In the case at bar, following the clear provision of the Constitution,

counting out Commissioner Lantion’s vote from the questioned
COMELEC En Banc resolution would leave just three (3) votes
out of “all” seven (7) members of the COMELEC and “[t]hree is
not the majority of seven.”||||

For the foregoing reasons then, this Court hereby abandons the
doctrine laid down in Cua and holds that the COMELEC En Banc
shall decide a case or matter brought before it by a majority vote
of “all its members,” and NOT majority of the members who
deliberated and voted thereon.|||

.R. No. 160465 May 27, 2004

ROMEO M. ESTRELLA, petitioner,

vs.
COMMISSION ON ELECTIONS, HON. COMMISSIONER
RALPH C. LANTION and ROLANDO F.
SALVADOR, respondents.

RESOLUTION

CARPIO MORALES, J.:

From this Court’s Resolution of April 28, 2004, private respondent

Rolando F. Salvador seeks a reconsideration.

In his petition for certiorari filed before this Court, petitioner

Romeo M. Estrella sought the nullification of the November 5,
2003 Status Quo Ante Order1 issued by the Commission on
Elections (COMELEC) En Banc in EAC No. A-10-2002, "Romeo
M. Estrella v. Rolando F. Salvador," directing the "parties to
maintain the status quo ante order, which is the condition
prevailing before the issuance" by the Regional Trial Court of
Malolos of a writ of execution for the enforcement of said court’s
decision declaring petitioner as the duly elected mayor of Baliwag,
Bulacan.

In the issuance of the questioned COMELEC En Banc Status

Quo Ante Order, five (5) of the then incumbent seven (7)
members of the COMELEC participated: Commissioners
Benjamin Abalos, Sr., Luzviminda Tangcangco, Rufino S.B.
Javier, Ressureccion Z. Borra and Ralph C. Lantion.

Commissioners Abalos, Tangcangco, Javier and Lantion voted for

the issuance of said order, while Commissioner Borra dissented.

Commissioner Lantion previously inhibited in SPR No. 21-2002, a

case pending before the COMELEC Second Division involving the
same parties, thus necessitating the issuance of an order
designating Commissioner Borra as his substitute. The
substitution order was subsequently adopted in EAC No. A-10-
2002. Parenthetically, petitioner had previously filed a Motion for
Inhibition of Commissioner Lantion before the Second Division in
SPR No. 21-2002 which was denied, albeit on Motion for
Reconsideration the Second Division, in its Resolution of May 7,
2002, noted that "Com[missioner] Lantion indicated for the record
that he is no longer taking part in the proceedings in this case."

In the COMELEC En Banc Status Quo Ante Order, Commissioner

Lantion stated in his handwriting that "his previous voluntary
inhibition is only in the SPR cases and not in the EAC" and that
"as further agreed in the Second Division, [he] will not participate
in the Division deliberations but will vote when the case is
elevated [to the] en banc."

In this Court’s Resolution2 of April 28, 2004 now the subject of

private respondent’s Motion for Reconsideration, it was held that:

Commissioner Lantion’s voluntary piecemeal inhibition cannot be

countenanced. Nowhere in the COMELEC Rules does it allow a
Commissioner to voluntarily inhibit with reservation. To allow him
to participate in the En Banc proceedings when he previously
inhibited himself in the Division is, absent any satisfactory
justification, not only judicially unethical but legally improper and
absurd.

Since Commissioner Lantion could not participate and vote in the

issuance of the questioned order, thus leaving three (3) members
concurring therewith, the necessary votes of four (4) or majority of
the members of the COMELEC was not attained. The order thus
failed to comply with the number of votes necessary for the
pronouncement of a decision or order, as required under Rule 3,
Section 5(a) of the COMELEC Rules of Procedure which
provides:

Section 5. Quorum; Votes Required. – (a) When sitting en banc,

four (4) Members of the Commission shall constitute a quorum for
the purpose of transacting business. The concurrence of a
majority of the Members of the Commission shall be necessary
for the pronouncement of a decision, resolution, order or ruling.

WHEREFORE, the instant petition is GRANTED. The Status Quo

Ante Order dated November 5, 2003 issued by the COMELEC En
Banc is hereby NULLIFIED. This Resolution is IMMEDIATELY
EXECUTORY. (Emphasis and underscoring supplied)

In seeking a reconsideration of the above-quoted Resolution,

private respondent cites Cua v. Commission on
Elections3 wherein this Court ruled:

After considering the issues and the arguments raised by the

parties, the Court holds that the 2-1 decision rendered by the First
Division was a valid decision under Article IX-A, section 7 of the
Constitution. Furthermore, the three members who voted to affirm
the First Division constituted a majority of the five members who
deliberated and voted thereon en banc and their decision is also
valid under the aforecited constitutional provision. x x x (Italics in
the original; emphasis supplied)

Private respondent argues that "[f]ollowing the doctrine laid out in

Cua, three (3) votes would have been sufficient to constitute a
majority to carry the decision of the COMELEC En Banc as
provided by the Constitution and the appropriate rules."4

Section 5(a) of the COMELEC Rules of Procedure was lifted from

Section 7, Article IX-A of the Constitution which provides:

SECTION 7. Each Commission shall decide by a majority vote of

all its members any case or matter brought before it within sixty
days from the date of its submission for decision or resolution. x x
x (Emphasis and underscoring supplied)

The provision of the Constitution is clear that it should be the

majority vote of all its members and not only those who
participated and took part in the deliberations. Under the rules of
statutory construction, it is to be assumed that the words in which
constitutional provisions are couched express the objective
sought to be attained.5 Since the above-quoted constitutional
provision states "all of its members," without any qualification, it
should be interpreted as such.

In the case at bar, following the clear provision of the Constitution,

counting out Commissioner Lantion’s vote from the questioned
COMELEC En Banc resolution would leave just three (3) votes
out of "all" seven (7) members of the COMELEC.

Even former Constitutional Commissioner Fr. Joaquin Bernas, SJ,

questions the Cua ruling in light of Section 7, which says "majority
of all the Members." He thus concludes that "[t]hree is not the
majority of seven."6

Had the framers intended that it should be the majority of the

members who participated or deliberated, it would have clearly
phrased it that way as it did with respect to the Supreme Court in
Section 4(2), Article VIII of the Constitution:

SECTION 4(2) x x x all other cases which under the Rules of

Court are required to be heard en banc, x x x shall be decided
with the concurrence of a majority of the members who actually
took part in the deliberations on the issues in the case and voted
thereon. (Italics in the original; emphasis and underscoring
supplied).

For the foregoing reasons then, this Court hereby abandons the
doctrine laid down in Cua and holds that the COMELEC En
Banc shall decide a case or matter brought before it by a
majority vote of "all its members," and NOT majority of the
members who deliberated and voted thereon.
WHEREFORE, private respondent’s motion for reconsideration is
hereby DENIED.

SO ORDERED.

G.R. No. 203833 March 19, 2013

MAMERTO T. SEVILLA, JR. Petitioner,

vs.
COMMISSION ON ELECTIONS and RENATO R.
SO, Respondents.

RESOLUTION

BRION, J.:

Before this Court is the petition for certiorari, with prayer for the
issuance of a Writ of Preliminary Injunction and/or Status Quo
Ante Order,1 filed by petitioner Mamerto T. Sevilla, Jr., to nullify
the May 14, 2012 Resolution2 of the Commission on Elections
(Comelec) Second Division and the October 6, 2012
Resolution3 of the Comelec en banc in SPR (BRGY-SK) No. 70-
2011. These assailed Resolutions reversed and set aside the May
4, 2011 Order of the Muntinlupa City Metropolitan Trial Court,
Branch 80

(MeTC), dismissing respondent Renato R. So’s election protest

against Sevilla.

The Facts

Sevilla and So were candidates for the position of Punong

Barangay of Barangay Sucat, Muntinlupa City during the October
25, 2010 Barangay and Sangguniang Kabataan Elections. On
October 26, 2010, the Board of Election Tellers proclaimed Sevilla
as the winner with a total of 7,354 votes or a winning margin of
628 votes over So’s 6,726 total votes. On November 4, 2010, So
filed an election protest with the MeTC on the ground that Sevilla
committed electoral fraud, anomalies and irregularities in all the
protested precincts. So pinpointed twenty percent (20%) of the
total number of the protested precincts. He also prayed for a
manual revision of the ballots.4

Following the recount of the ballots in the pilot protested

precincts, the MeTC issued an Order dated May 4, 2011
dismissing the election protest. On May 9, 2011, So filed a motion
for reconsideration from the dismissal order instead of a notice of
appeal; he also failed to pay the appeal fee within the
reglementary period. On May 17, 2011, the MeTC denied the
motion for reconsideration on the ground that it was a prohibited
pleading pursuant to Section 1, Rule 6 of A.M. No. 07-04-15-SC.5

In response, So filed a petition for certiorari on May 31, 2011 with

the Comelec, alleging grave abuse of discretion on the part of the
MeTC Judge. So faults the MeTC for its non-observance of the
rule that in the appreciation of ballots, there should be a clear and
distinct presentation of the specific details of how and why a
certain group of ballots should be considered as having been
written by one or two persons.6

The Comelec Second Division Ruling

In its May 14, 2012 Resolution, the Comelec Second Division

granted So’s petition. The Comelec Second Division held that
certiorari can be granted despite the availability of appeals when
the questioned order amounts to an oppressive exercise of
judicial authority, as in the case before it. It also ruled that the
assailed Order was fraught with infirmities and irregularities in the
appreciation of the ballots, and was couched in general terms:
"these are not written by one person observing the different
strokes, slant, spacing, size and indentation of handwriting and
the variance in writing."7
 The Comelec En Banc Ruling

The Comelec en banc, by a vote of 3-3,8 affirmed the Comelec

Second Division’s ruling in its October 6, 2012 Resolution whose
dispositive portion reads:

WHEREFORE, premises considered, the Motion for

Reconsideration is hereby DENIED for lack of merit. Respondent
judge is directed to conduct another revision of the contested
ballots in Election Protest Case No. SP-6719 with dispatch.9

It ruled that where the dismissal was capricious, certiorari lies as

the petition challenges not the correctness but the validity of the
order of dismissal. The Comelec en banc emphasized that
procedural technicalities should be disregarded for the immediate
and final resolution of election cases inasmuch as ballots should
be read and appreciated with utmost liberality so that the will of
the electorate in the choice of public officials may not be defeated
by technical infirmities.

It found that the MeTC Judge committed grave abuse of

discretion amounting to lack of jurisdiction when she did not
comply with the mandatory requirements of Section 2(d), Rule 14
of A.M. No. 07-4-15-SC on the form of the decision in election
protests involving pairs or groups of ballots written by two
persons. It noted that based on the general and repetitive
phraseology of the Order, the MeTC Judge’s findings were "copy-
pasted" into the decision and ran counter to the mandate of the
aforementioned rule. Also, the MeTC Judge failed to mention in
her appreciation of the ballots that she examined the Minutes of
Voting and Counting to ascertain whether there were illiterate
voters or assisted voters in the protested precincts.10

Commissioner Lim’s Dissent 11

The dissent posited that So’s petition should be dismissed
outright as it was mired in procedural errors. First, So should have
filed an appeal within five (5) days from receipt of the MeTC’s
Order; a motion for reconsideration was improper as the Order
amounted to the final disposition of the protest. Second, So
should not have filed the motion for reconsideration even if he
believed that the Order was interlocutory since a motion for
reconsideration is a prohibited pleading. Also, he could have
simply filed the petition for certiorari without the necessity of filing
the motion for reconsideration. Third, the petition for certiorari
cannot be a substitute for the lost appeal. The Comelec could not
even treat the certiorari as an appeal since the petition was filed
25 days after So received the assailed Order; thus, the Order
already attained finality. Finally, procedural rules should not be
lightly shunned in favor of liberality when, as in this case, So did
not give a valid excuse for his errors.

The Petition

The Comelec gravely abused its discretion when it gave due

course to the petition for certiorari

Sevilla argues that the Comelec gravely abused its discretion

when it entertained So’s petition despite its loss of jurisdiction to
entertain the petition after the court a quo’s dismissal order
became final and executory due to So’s wrong choice of remedy.
Instead of filing an appeal within five (5) days from receipt of the
Order and paying the required appeal fee, So filed a motion for
reconsideration – a prohibited pleading that did not stop the
running of the prescriptive period to file an appeal. Sevilla also
emphasizes that So’s petition for certiorari should not have been
given due course since it is not a substitute for an appeal and
may only be allowed if there is no appeal, nor any plain, speedy
and adequate remedy in the ordinary course of law.12

The dismissal of the election protest was proper

Sevilla also contends that the dismissal was not tainted with grave
abuse of discretion since the MeTC Judge complied with the
rules; she made clear, specific and detailed explanations
pertaining to the specific strokes, figures or letters showing that
the ballots had been written by one person. Granting that the
decision was tainted with errors, certiorari would still not lie
because a mere error of judgment is not synonymous with grave
abuse of discretion. Lastly, a liberal application of the rules cannot
be made to a petition which offers no explanation for the non-
observance of the rules.13

On November 13, 2012,14 the Court resolved to require the

Comelec and the respondent to comment on the petition and to
observe the status quo prevailing before the issuance of the
assailed Comelec Second Division’s Resolution of May 14, 2012
and the Comelec en banc’s Resolution of October 6, 2012.15

In his Comment, the respondent contends that the petition was

filed prematurely. He emphasizes that the October 6, 2012
Resolution of the Comelec en banc was not a majority decision
considering that three Commissioners voted for the denial of the
motion for reconsideration and the three others voted to grant the
same. So notes that the assailed October 6, 2012 Resolution was
deliberated upon only by six (6) Commissioners because the 7th

Commissioner had not yet been appointed by the President at

that time. Considering that the October 6, 2012 Resolution was
not a majority decision by the Comelec en banc, So prays for the
dismissal of the petition so that it can be remanded to the
Comelec for a rehearing by a full and complete Commission.16

The Court’s Ruling

We resolve to DISMISS the petition for having been prematurely

filed with this Court, and remand the case to the COMELEC for its
appropriate action.
The October 6, 2012 Comelec en banc’s Resolution lacks legal
effect as it is not a majority decision required by the Constitution
and by the Comelec Rules of Procedure

Section 7, Article IX-A of the Constitution requires that "each

Commission shall decide by a majority vote of all its members,
any case or matter brought before it within sixty days from the
date of its submission for decision or resolution."17 Pursuant to
this Constitutional mandate, the Comelec provided in Section
5(a), Rule 3 of the Comelec Rules of Procedure the votes
required for the pronouncement of a decision, resolution, order or
ruling when the Comelec sits en banc, viz.:

Section 5. Quorum; Votes Required. - (a) When sitting en banc,

four (4) Members of the Commission shall constitute a quorum for
the purpose of transacting business. The concurrence of a
majority of the Members of the Commission shall be necessary
for the pronouncement of a decision, resolution, order or ruling.
[italics supplied; emphasis ours]

We have previously ruled that a majority vote requires a vote of

four members of the Comelec en banc. In Marcoleta v.
Commission on Elections,18 we declared "that Section 5(a) of Rule
3 of the Comelec Rules of Procedure and Section 7 of Article IX-A
of the Constitution require that a majority vote of all the members
of the Comelec en banc, and not only those who participated and
took part in the deliberations, is necessary for the pronouncement
of a decision, resolution, order or ruling."

In the present case, while the October 6, 2012 Resolution of the

Comelec en banc appears to have affirmed the Comelec Second
Division’s Resolution and, in effect, denied Sevilla’s motion for
reconsideration, the equally divided voting between three
Commissioners concurring and three Commissioners dissenting
is not the majority vote that the Constitution and the Comelec
Rules of Procedure require for a valid pronouncement of the
assailed October 6, 2012 Resolution of the Comelec en banc.

In essence, based on the 3-3 voting, the Comelec en banc did not
sustain the Comelec Second Division’s findings on the basis of
the three concurring votes by Commissioners Tagle, Velasco and
Yusoph; conversely, it also did not overturn the Comelec Second
Division on the basis of the three dissenting votes by Chairman
Brillantes, Commissioner Sarmiento and Commissioner Lim, as
either side was short of one (1) vote to obtain a majority decision.
Recall that under Section 7, Article IX-A of the Constitution, a
majority vote of all the members of the Commission en banc is
necessary to arrive at a ruling. In other words, the vote of four (4)
members must always be attained in order to decide, irrespective
of the number of Commissioners in attendance. Thus, for all
intents and purposes, the assailed October 6, 2012 Resolution of
the Comelec en banc had no legal effect whatsoever except to
convey that the Comelec failed to reach a decision and that
further action is required.

The October 6, 2012 Comelec en banc’s Resolution must be

reheard pursuant to the Comelec Rules of Procedure

To break the legal stalemate in case the opinion is equally divided

among the members of the Comelec en banc, Section 6, Rule 18
of the Comelec Rules of Procedure mandates a rehearing where
parties are given the opportunity anew to strengthen their
respective positions or arguments and convince the members of
the Comelec en banc of the merit of their case.19 Section 6, Rule
18 of the Comelec Rules of Procedure reads:

Section 6. Procedure if Opinion is Equally Divided. - When the

Commission en banc is equally divided in opinion, or the
necessary majority cannot be had, the case shall be reheard, and
if on rehearing no decision is reached, the action or proceeding
shall be dismissed if originally commenced in the Commission; in
appealed cases, the judgment or order appealed from shall stand
affirmed; and in all incidental matters, the petition or motion shall
be denied. [emphasis ours; italics supplied]

In Juliano v. Commission on Elections,20 only three members of

the Comelec en banc voted in favor of granting Estrelita Juliano’s
motion for reconsideration (from the Decision of the Comelec
Second Division dismissing her petition for annulment of
proclamation of Muslimin Sema as the duly elected Mayor of
Cotabato City), three members dissented, and one member took
no part. In ruling that the Comelec acted with grave abuse of
discretion when it failed to order a rehearing required by the
Comelec Rules of Procedure, the Court ruled:

Section 6, Rule 18 of the Comelec Rules of Procedure specifically

states that if the opinion of the Comelec En Banc is equally
divided, the case shall be reheard. The Court notes, however, that
the Order of the Comelec En Banc dated February 10, 2005
clearly stated that what was conducted was a mere "re-
consultation."

A "re-consultation" is definitely not the same as a "rehearing."

A consultation is a "deliberation of persons on some subject;"

hence, a re-consultation means a second deliberation of persons
on some subject.

Rehearing is defined as a "second consideration of cause for

purpose of calling to court’s or administrative board’s attention
any error, omission, or oversight in first consideration. A retrial of
issues presumes notice to parties entitled thereto and opportunity
for them to be heard." (italics supplied). But as held in Samalio v.
Court of Appeals,

A formal or trial-type hearing is not at all times and in all instances

essential.1âwphi1 The requirements are satisfied where the
parties are afforded fair and reasonable opportunity to explain
their side of the controversy at hand.

Thus, a rehearing clearly presupposes the participation of the

opposing parties for the purpose of presenting additional
evidence, if any, and further clarifying and amplifying their
arguments; whereas, a re-consultation involves a re-evaluation of
the issues and arguments already on hand only by the members
of the tribunal, without the participation of the parties.

In Belac v. Comelec, when the voting of the Comelec En Banc on

therein petitioner’s motion for reconsideration was equally divided,
the Comelec En Banc first issued an order setting the case for
hearing and allowed the parties to submit their respective
memoranda before voting anew on therein petitioner’s motion for
reconsideration. This should have been the proper way for the
Comelec En Banc to act on herein petitioner’s motion for
reconsideration when the first voting was equally divided. Its own
Rules of Procedure calls for a rehearing where the parties would
have the opportunity to strengthen their respective positions or
arguments and convince the members of the Comelec En Banc of
the merit of their case. Thus, when the Comelec En Banc failed to
give petitioner the rehearing required by the Comelec Rules of
Procedure, said body acted with grave abuse of
discretion.21 (italics supplied; emphases ours)

To the same effect, in Marcoleta v. Commission on

Elections,22 the Court ruled that the Comelec en banc did not
gravely abuse its discretion when it ordered a rehearing of its
November 6, 2007 Resolution for failing to muster the required
majority voting. The Court held:

The Comelec, despite the obvious inclination of three

commissioners to affirm the Resolution of the First Division,
cannot do away with a rehearing since its Rules clearly provide
for such a proceeding for the body to have a solicitous review of
the controversy before it. A rehearing clearly presupposes the
participation of the opposing parties for the purpose of presenting
additional evidence, if any, and further clarifying and amplifying
their arguments.

To reiterate, neither the assenters nor dissenters can claim a

majority in the En Banc Resolution of November 6, 2007. The
Resolution served no more than a record of voters, lacking in
legal effect despite its pronouncement of reversal of the First
Division Resolution. According, the Comelec did not commit any
grave abuse of discretion in ordering a rehearing.23 (italics
supplied; citation omitted)

In the present case, it appears from the records that the Comelec
en banc did not issue an Order for a rehearing of the case in view
of the filing in the interim of the present petition for certiorari by
Sevilla. In both the cases of Juliano and Marcoleta, cited above,
we remanded the cases to the Comelec en banc for the conduct
of the required rehearing pursuant to the Comelec Rules of
Procedure. Based on these considerations, we thus find that a
remand of this case is necessary for the Comelec en banc to
comply with the rehearing requirement of Section 6, Rule 18 of
the Comelec Rules of Procedure.

WHEREFORE, we hereby DISMISS the petition and REMAND

SPR (BR GY-SK) No. 70-2011 to the Comelec en bane for the
conduct of the required rehearing under the Comelec Rules of
Procedure. The Comelec en bane is hereby ORDERED to
proceed with the rehearing with utmost dispatch.

No costs.

SO OR.R. No. 192289 January 8, 2013

KAMARUDIN K. IBRAHIM, Petitioner,

vs.
COMMISSION ON ELECTIONS and ROLAN G.
BUAGAS, Respondents.

DECISION

REYES, J.:

Before us is a Petition for Certiorari and Prohibition with Prayer for

the Issuance of a Writ of Preliminary Injunction and/or Temporary
Restraining Order1 filed under Rule 64 of the Rules of Court
assailing the following resolutions of the public respondent
Commission on Elections (COMELEC):

(a) Minute Resolution No. 09-09462 (December 22, 2009

Resolution), dated December 22, 2009, disqualifying the
petitioner herein, Kamarudin K. Ibrahim (Ibrahim), from the
2010 Vice-Mayoralty race in Datu Unsay, Maguindanao for
supposedly not being a registered voter of the said
municipality; and

(b) Resolution3 (May 6, 2010 Resolution) issued on May 6,

2010, relative to SPA Case No. 10-002 (MP) LOCAL,
denying Ibrahim’s opposition4 to Resolution No. 09-0946.

Antecedent Facts

On December 1, 2009, Ibrahim filed his certificate of candidacy to

run as Vice-Mayor of Datu-Unsay in the May 10, 2010 elections.
Thereafter, respondent Rolan G. Buagas (Buagas), then Acting
Election Officer in the said municipality, forwarded to the
COMELEC’s Law Department (Law Department) the names of 20
candidates who were not registered voters therein. The
list5 included Ibrahim’s name, along with those of two candidates
for mayor, one for vice-mayor and 16 for councilor.

In a Memorandum6 dated December 10, 2009, the Law

Department brought to the attention of the COMELEC en banc
the names of 56 candidates running for various posts in
Maguindanao and Davao del Sur who were not registered voters
of the municipalities where they sought to be elected. The Law
Department recommended the retention of the said names in the
Certified List of Candidates, but for the COMELEC to motu propio
institute actions against them for disqualification and for violation
of election laws. Thereafter, the COMELEC en banc issued the
herein assailed December 22, 2009 Resolution approving, but
with modification, the Law

Department’s recommendation in the following wise:

1. to disqualify the foregoing candidates for not being

registered voters of the respective municipalities where they
seek to be elected without prejudice to their filing of an
opposition within two (2) days from publication hereof; and

2. to file election offense cases against said candidates for

violation of Sec. 74 in relation to Sec. 262 of the Omnibus
Election Code.7 (Italics ours)

On January 8, 2010, Ibrahim and 50 other candidates filed a

Petition/Opposition8 to assail the Resolution dated December 22,
2009. In the Petition/Opposition, which was docketed as SPA 10-
002 (MP) LOCAL, it was stressed that some of those affected by
the Resolution dated December 22, 2009 had participated as
candidates in the 2004 and 2007 elections. If indeed they were
not registered voters, they should have been disqualified then.
Further, it was emphasized that the candidates who filed the
Petition/Opposition were permanent residents and were domiciled
at the place where they sought to be elected.

The COMELEC en banc denied the Petition/Opposition through

the herein assailed Resolution dated May 6, 2010. The
COMELEC declared that the Resolution dated December 22,
2009 was anchored on the certification, which was issued by
Buagas and Acting Provincial Election Supervisor of
Maguindanao, Estelita B. Orbase, stating that Ibrahim, among
other candidates, were not registered voters of Datu Unsay,
Maguindanao. The certification was issued in the performance of
official duty, hence, the presumption of regularity attached to it in
the absence of contrary evidence. Ibrahim and company failed to
adduce evidence proving their allegations of registration and
residence.

In the May 10, 2010 elections, during which time the Resolution
dated May 6, 2010 had not yet attained finality, Ibrahim obtained
446 votes, the highest number cast for the Vice-Mayoralty race in
Datu Unsay.9 However, the Municipal Board of Canvassers
(MBOC), which was then chaired by Buagas, suspended
Ibrahim’s proclamation on the basis of Section 5, Rule 2510 of the
COMELEC Rules of Procedure.11

Issue

Whether or not the COMELEC en banc acted with grave abuse of

discretion amounting to lack or excess of jurisdiction when it
issued the Resolutions dated December 22, 2009 and May 6,
2010.

Arguments in Support of the Instant Petition

Ibrahim posits that the MBOC is a ministerial body created merely

"to take the returns as made from the different voting precincts,
add them up and declare the result."12 As long as the returns are
on their face genuine and are signed by the proper officers, sans
indications of being spurious and forged, they cannot be rejected
on the ground of alleged questions on the qualifications of voters
and the existence of electoral frauds and irregularities. Further,
since Ibrahim received the highest number of votes for Vice-
Mayor, all possible doubts should be resolved in favor of his
eligibility, lest the will of the electorate, which should be the
paramount consideration, be defeated.13

In its Manifestation and Motion in Lieu of Comment,14 the Office of

the Solicitor General (OSG) proposes for the instant Petition to be
granted. The OSG points out that in Cipriano v. Commission on
Elections,15 this court nullified, for lack of proper proceedings
before their issuance, the resolutions issued by the COMELEC
relative to the cancellation of a certificate of candidacy. The OSG
emphasizes that similarly, Ibrahim was disqualified as a candidate
without prior notice and hearing and he was given the chance to
file an opposition only after the issuance of the Resolution dated
December 22, 2009.

Further citing Bautista v. Comelec,16 the OSG argues that

jurisdiction over petitions to cancel a certificate of candidacy
pertains to the COMELEC sitting in division and not to the
COMELEC en banc. The COMELEC en banc can only take
cognizance of petitions to cancel a certificate of candidacy when
the required number of votes for a division to reach a decision,
ruling, order or resolution is not obtained, or when motions for
reconsideration are filed to assail the said issuances of a division.

The OSG likewise refers to Section 4(B)(3)17 of Resolution No.

869618 to stress that generally, the COMELEC cannot motu propio
file petitions for disqualification against candidates. Section 519 of
the same resolution, however, provides the only exception to the
foregoing, to wit, that certificates of candidacy of those running for
the positions of President, Vice-President, Senator and Party-List
maybe denied due course and canceled motu propio by the
COMELEC based on grounds enumerated therein. While there
was a Petition for Disqualification20 filed by Bai Reshal S.
Ampatuan against Ibrahim and company, it was not the basis for
the COMELEC en banc’s issuance of the Resolutions dated
December 22, 2009 and May 6, 2010. Instead, the certification
issued by Buagas was the basis for the subsequent actions of the
Law Department and the COMELEC en banc leading to the
issuance of the herein assailed resolutions.

The OSG also invokes Section 1621 of COMELEC Resolution No.

867822 to assert that the MBOC had no authority to order the
suspension of Ibrahim’s proclamation. Upon motion, the
suspension of a winning candidate’s proclamation can be ordered
during the pendency of a disqualification case before the
COMELEC. However, only the COMELEC, as a tribunal, has the
authority to issue orders relative to cases pending before it. The
MBOC cannot substitute its own judgment for that of the
COMELEC’s. The MBOC can suspend a winning candidate’s
proclamation only when an actual issue within the Board’s
jurisdiction arises in the course of conducting a canvass. The
aforementioned issues include the commission of violent and
terrorist acts or the occurrence of a calamity at the canvassing
site. Absent any determination of irregularity in the election
returns, as well as an order enjoining the canvassing and
proclamation of the winner, it is a mandatory and ministerial duty
of the MBOC concerned to count the votes based on such returns
and declare the result.23

It is also the OSG’s position that Section 5, Rule 2524 of the

COMELEC Rules of Procedure was irregularly worded for using
the word "shall" when Section 625 of Republic Act (R.A.) No.
6646,26 which the rules seek to implement, merely employed the
word "may". The use of the word "may" indicates that the
suspension of a proclamation is merely directory and permissive
in nature and operates to confer discretion.27

The COMELEC’s Contentions

In the Compliance28 filed with the court, the COMELEC assails as

improper Ibrahim’s immediate resort to the instant Petition for
Certiorari under Rule 64 of the Rules of Court. Despite the
issuance of the herein assailed resolutions, Ibrahim’s name was
not stricken off from the certified list of candidates during the May
10, 2010 elections and the votes cast for him were counted.
Hence, no actual prejudice was caused upon him as the
COMELEC did not even direct the MBOC to suspend his
proclamation. It was the MBOC’s ruling which resulted to the
suspension of his proclamation. Such being the case, Ibrahim
should have instead filed a pre-proclamation controversy before
the COMELEC anchored on the supposed illegality of the
MBOC’s proceedings. Section 241 of Batas Pambansa Blg. 881
(BP 881), otherwise known as the Omnibus Election Code (OEC),
defines pre-proclamation controversies as referring to any
questions "pertaining to or affecting the proceedings of the board
of canvassers which may be raised by any candidate or by any
registered political party or coalition of political parties before the
board or directly with the Commission, or any matter raised xxx in
relation to the preparation, transmission, receipt, custody and
appreciation of the election returns." Had Ibrahim instituted
instead a pre-proclamation controversy, the COMELEC could
have corrected the MBOC’s ruling, if indeed, it was erroneous.

The COMELEC further argues that Ibrahim was not denied due
process as he and the other candidates referred to in the
Resolutions dated December 22, 2009 and May 6, 2010 were
given the opportunity to file their opposition. Ibrahim did file his
Petition/Opposition and sought reliefs from the COMELEC en
banc. Now, he should not be allowed to repudiate the
proceedings merely because the result was adverse to him.
Moreover, the OSG’s invocation of the doctrines enunciated in
Bautista v. Comelec29 is misplaced because in the said case,
there was a total absence of notice and hearing.

The COMELEC emphasizes that Ibrahim was undeniably not a

registered voter in Datu Unsay when he ran as Vice-Mayor in the
May 10, 2010 elections. He cannot possess any mandate to serve
as an elected official as by his act and willful misrepresentations,
he had deceived the electorate.

Our Ruling

We grant the instant Petition.

Before resolving the merits of the petition, the court shall first
dispose of the procedural issue raised by the COMELEC.

Ibrahim properly resorted to the instant Petition filed under Rule

64 of the Rules of Court to assail the Resolutions dated
December 22, 2009 and May 6, 2010 of the COMELEC en banc.

The COMELEC seeks the dismissal of the instant Petition on the

basis of a technical ground, to wit, that Ibrahim’s resort to a
petition for certiorari filed under Rule 64 of the Rules of Court to
challenge the Resolutions dated December 22, 2009 and May 6,
2010 is improper. Ibrahim should have instead filed before the
COMELEC a pre-proclamation controversy to allow the latter to
correct the MBOC’s ruling if it was indeed erroneous.

The claim fails to persuade.

Section 7, Article IX of the 1987 Constitution in part substantially

provides that any decision, order or ruling of any of the
Constitutional Commissions may be brought for review to the
Supreme Court on certiorari within 30 days from receipt of a copy
thereof. The orders, ruling and decisions rendered or issued by
the COMELEC en banc must be final and made in the exercise of
its adjudicatory or quasi-judicial power.30 Further, Section 1, Rule
64 of the Rules of Court states that it shall govern the review of
final judgments and orders or resolutions of the COMELEC and
the Commission on Audit.

A pre-proclamation controversy is defined in Section 241 of the

OEC as referring to "any question pertaining to or affecting the
proceedings of the board of canvassers which may be raised by
any candidate or by any registered political party or coalition of
parties before the board or directly with the Commission, or any
matter raised under Sections 233,31 234,32 23533 and 23634 in
relation to the preparation, transmission, receipt, custody and
appreciation of the election returns." Section 243 of the OEC
restrictively enumerates as follows the issues which can be raised
in a pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of

canvassers;

(b) The canvassed election returns are incomplete, contain

material defects, appear to be tampered with or falsified, or
contain discrepancies in the same returns or in other
authentic copies thereof as mentioned in Sections 233, 234,
235 and 236 of this Code;

(c) The election returns were prepared under duress,

threats, coercion, or intimidation, or they are obviously
manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted

polling places were canvassed, the results of which
materially affected the standing of the aggrieved candidate
or candidates.

The illegality of the proceedings of the board of canvassers is the

first issue which may be raised in a pre-proclamation controversy.
To illustrate, the proceedings are to be considered as illegal when
the board is constituted not in accordance with law, or is
composed of members not enumerated therein, or when business
is transacted sans a quorum.

In the case at bar, the now assailed Resolutions dated December

22, 2009 and May 6, 2010 were issued with finality by the
COMELEC en banc. Under the Constitution and the Rules of
Court, the said resolutions can be reviewed by way of filing before
us a petition for certiorari. Besides, the issues raised do not at all
relate to alleged irregularities in the preparation, transmission,
receipt, custody and appreciation of the election returns or to the
composition and proceedings of the board of canvassers. What
the instant Petition challenges is the authority of the MBOC to
suspend Ibrahim’s proclamation and of the COMELEC en banc to
issue the assailed resolutions. The crux of the instant Petition
does not qualify as one which can be raised as a pre-
proclamation controversy.

The COMELEC en banc is devoid of authority to disqualify

Ibrahim as a candidate for the position of Vice-Mayor of Datu
Unsay.

Section 3(C), Article IX of the 1987 Constitution explicitly

provides:

Sec. 3. The Commission on Elections may sit en banc or in two

divisions, and shall promulgate its rules of procedure in order to
expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided
in division, provided that motions for reconsideration of decisions
shall be decided by the Commission en banc. (Italics ours)

Further, the circumstances obtaining in Bautista v.

Comelec35 cited by the OSG in its Manifestation are similar to
those attendant to the instant Petition. In Bautista, the election
officer reported to the Law Department that Bautista was ineligible
to run as a candidate by reason of his being an unregistered
voter. The Law Department recommended to the COMELEC en
banc to deny due course or cancel Bautista’s certificate of
candidacy. The COMELEC en banc adopted the recommendation
and consequently issued a resolution. In the said case, this Court
discussed the COMELEC en banc’s jurisdiction over petitions for
disqualification, for denial of due course, or cancellation of
certificates of candidacy in the following wise:

In Garvida v. Sales, Jr., the Court held that it is the COMELEC

sitting in division and not the COMELEC en banc which has
jurisdiction over petitions to cancel a certificate of candidacy. The
Court held:

The Omnibus Election Code, in Section 78, Article IX, governs the
procedure to deny due course to or cancel a certificate of
candidacy, viz:

"Sec.78. Petition to deny due course to or cancel a certificate of

candidacy.1âwphi1  A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by any
person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false.
The petition may be filed at any time not later than twenty-five
days from the time of filing of the certificate of candidacy and shall
be decided, after due notice and hearing, not later than fifteen
days before election."

In relation thereto, Rule 23 of the COMELEC Rules of Procedure

provides that a petition to deny due course to or cancel a
certificate of candidacy for an elective office may be filed with the
Law Department of the COMELEC on the ground that the
candidate has made a false material representation in his
certificate. The petition may be heard and evidence received by
any official designated by the COMELEC after which the case
shall be decided by the COMELEC itself.

Under the same Rules of Procedure, jurisdiction over a petition to

cancel a certificate of candidacy lies with the COMELEC sitting in
Division, not en banc. Cases before a Division may only be
entertained by the COMELEC en banc when the required number
of votes to reach a decision, resolution, order or ruling is not
obtained in the Division. Moreover, only motions to reconsider
decisions, resolutions, orders or rulings of the COMELEC in
Division are resolved by the COMELEC en banc.

xxxx

Under Section 3, Rule 23 of the 1993 COMELEC Rules of

Procedure, a petition for the denial or cancellation of a certificate
of candidacy must be heard summarily after due notice. It is thus
clear that cancellation proceedings involve the exercise of the
quasi-judicial functions of the COMELEC which the COMELEC in
division should first decide. More so in this case where the
cancellation proceedings originated not from a petition but from a
report of the election officer regarding the lack of qualification of
the candidate in the barangay election. The COMELEC en banc
cannot short cut the proceedings by acting on the case without a
prior action by a division because it denies due process to the
candidate.36 (Citation omitted and italics ours)

In the case at bar, the COMELEC en banc, through the herein

assailed resolutions, ordered Ibrahim’s disqualification even when
no complaint or petition was filed against him yet. Let it be
stressed that if filed before the conduct of the elections, a petition
to deny due course or cancel a certificate of candidacy under
Section 78 of the OEC is the appropriate petition which should
have been instituted against Ibrahim considering that his allegedly
being an unregistered voter of Datu Unsay disqualified him from
running as Vice-Mayor. His supposed misrepresentation as an
eligible candidate was an act falling within the purview of Section
78 of the OEC. Moreover, even if we were to assume that a
proper petition had been filed, the COMELEC en banc still acted
with grave abuse of discretion when it took cognizance of a
matter, which by both constitutional prescription and
jurisprudential declaration, instead aptly pertains to one of its
divisions.
Ibrahim is not estopped from challenging the COMELEC en
banc’s jurisdiction to issue the assailed resolutions.

In Republic v. Bantigue Point Development Corporation,37 we

stated:

The rule is settled that lack of jurisdiction over the subject matter
may be raised at any stage of the proceedings. Jurisdiction over
the subject matter is conferred only by the Constitution or the law.
It cannot be acquired through a waiver or enlarged by the
omission of the parties or conferred by the acquiescence of the
court. Consequently, questions of jurisdiction may be cognizable
even if raised for the first time on appeal.

The ruling of the Court of Appeals that "a party may be estopped
from raising such jurisdictional question if he has actively taken
part in the very proceeding which he questions, belatedly
objecting to the court’s jurisdiction in the event that the judgment
or order subsequently rendered is adverse to him" is based on the
doctrine of estoppel by laches. We are aware of that doctrine first
enunciated by this Court in Tijam v. Sibonghanoy. In Tijam, the
party-litigant actively participated in the proceedings before the
lower court and filed pleadings therein. Only 15 years thereafter,
and after receiving an adverse Decision on the merits from the
appellate court, did the party-litigant question the lower court’s
jurisdiction. Considering the unique facts in that case, we held
that estoppel by laches had already precluded the party-litigant
from raising the question of lack of jurisdiction on appeal. In
Figueroa v. People, we cautioned that Tijam must be construed
as an exception to the general rule and applied only in the most
exceptional cases whose factual milieu is similar to that in the
latter case.38 (Citations omitted and italics ours)

As enunciated above, estoppel by laches can only be invoked in

exceptional cases with factual circumstances similar to those in
Tijam.39 In the case now before us, the assailed resolutions were
issued on December 22, 2009 and May 6, 2010. The instant
Petition, which now raises, among others, the issue of the
COMELEC en banc’s jurisdiction, was filed on June 3, 2010. With
the prompt filing of the instant Petition, Ibrahim can hardly be
considered as guilty of laches.

Ibrahim was not denied due process.

Interminably, we have declared that deprivation of due process

cannot be successfully invoked where a party was given the
chance to be heard on his motion for reconsideration.40

In the case before us, Ibrahim was afforded the chance to file an
opposition to the assailed resolutions. Nonetheless, even if due
process was substantially observed, the assailed resolutions
remain null and void for want of authority on the part of the
COMELEC en banc to take cognizance of a matter which should
have instead been referred to one of its divisions.

The MBOC has no authority to suspend Ibrahim’s proclamation

especially since the herein assailed resolutions, upon which the
suspension was anchored, were issued by the COMELEC en
banc outside the ambit of its jurisdiction.

Mastura v. COMELEC41 is emphatic that:

(T)he board of canvassers is a ministerial body. It is enjoined by

law to canvass all votes on election returns submitted to it in due
form. It has been said, and properly, that its powers are limited
generally to the mechanical or mathematical function of
ascertaining and declaring the apparent result of the election by
adding or compiling the votes cast for each candidate as shown
on the face of the returns before them, and then declaring or
certifying the result so ascertained. x x x.42 (Italics ours)
The simple purpose and duty of the canvassing board is to
ascertain and declare the apparent result of the voting while all
other questions are to be tried before the court or other tribunal
for contesting elections or in quo warranto proceedings.43

In the case at bar, the MBOC motu propio suspended Ibrahim’s

proclamation when the issue of the latter’s eligibility is a matter
which the board has no authority to resolve. Further, under
Section 644 of R.A. 6646, the COMELEC and not the MBOC has
the authority to order the suspension of a winning candidates’s
proclamation. Such suspension can only be ordered upon the
motion of a complainant or intervenor relative to a case for
disqualification, or a petition to deny due course or cancel a
certificate of candidacy pending before the COMELEC, and only
when the evidence of the winning candidate’s guilt is strong.
Besides, the COMELEC en banc itself could not have properly
ordered Ibrahim’s disqualification because in taking cognizance of
the matter, it had already exceeded its jurisdiction.

WHEREFORE, IN VIEW OF THE FOREGOING, the instant

petition is GRANTED. The December 22, 2009 and May 6, 2010
Resolutions issued by the COMELEC en banc is ANNULLED and
SET ASIDE. Consequently, the suspension by the MBOC of
Ibrahim’s proclamation on the basis of the herein assailed
resolutions is likewise ANNULLED and SET ASIDE. In the
absence of a judgment, order or resolution relative to another
action or petition finally disqualifying Ibrahim, denying due course
or cancelling his certificate of candidacy, the MBOC of Datu
Unsay is directed to convene within ten (10) days from receipt
hereof and to proclaim Ibrahim as the duly-elected Vice-Mayor of
the said municipality.

SO ORDERED

DERED.
G.R. No. 155717 October 23, 2003

ALBERTO JARAMILLA, petitioner,

vs.
COMMISSION ON ELECTIONS, ANTONIO SUYAT,
MUNICIPAL BOARD OF CANVASSERS OF STA. CRUZ,
ILOCOS SUR, THE NEW MUNICIPAL BOARD OF
CANVASSERS (COMELEC), AND IRENEO
CORTEZ, respondents.

DECISION

AZCUNA, J.:

For review before the Court is the instant petition

for certiorari1 with prayer for temporary restraining order and
preliminary injunction ascribing grave abuse of discretion to public
respondent Commission on Elections (COMELEC) in issuing
its en banc resolution dated October 24, 2002.

The antecedent facts, as summarized in the COMELEC

resolution,2 are as follows:

[Respondent] Antonio Suyat and [petitioner] Alberto J. Jaramilla

both ran for the position of Member of the Sangguniang Bayan in
the Municipality of Sta. Cruz, Ilocos Sur in the May 14, 2001
elections.

On May 16, 2001, the Municipal Board of Canvassers of Sta.

Cruz, proclaimed the winning candidates for the offices of Mayor,
Vice-Mayor and eight (8) members of the Sangguniang Bayan.
The Certificate of Canvass of Votes and Proclamation shows the
following results and ranking with respect to the members of the
Sangguniang Bayan, to wit:

Name of Candidates Total Votes Obtained

 1. RAGUCOS, Ma. Luisa
6,324
Laxamana
2. ABAYA, Juan Jr., Andaquig 6,013
3. GINES, Fidel Cudiamat 5,789
4. QUILOP, Renato Avila 5,227
5. BILIGAN, Osias Depdepen 5,130
6. RUIZ, Agustin Turgano 4,972
7. JARAMILLA, Alberto Jimeno 4,815
8. CORTEZ, Ireneo Habon 4,807

In the tabulated results issued by the Election Officer and

Chairperson of the Municipal Board of Canvassers of Sta. Cruz, it
is shown that [respondent Suyat] obtained Four thousand seven
hundred seventy nine (4,779) votes and was ranked no. 9.

Upon review by [respondent Suyat], he discovered that [petitioner]

was credited with only twenty three (23) votes per Election Return
from Precinct No. 34A1. However, when the figures were
forwarded to the Statement of Votes by Precinct, [petitioner] was
credited with seventy three (73) votes for Precinct No. 34A1 or
fifty (50) votes more than what he actually obtained. If the entry
were to be corrected, the affected candidates would be ranked as
follows:

7. CORTEZ, Ireneo Habon – 4,807

8. SUYAT, Antonio – 4,779
9. JARAMILLA, Alberto – 4,765

On June 13, 2001, respondent Suyat filed before the

COMELEC en banc an Urgent Motion for Issuance of Order to
Reconvene,3 which the latter treated as a Petition for Correction of
Manifest Error. Petitioner countered in his Answer4 that said
petition should be dismissed for having been filed out of time and
for lack of the required certification of non-forum shopping.

On October 24, 2002, COMELEC en banc issued the assailed

resolution, the dispositive portion of which reads:5

WHEREFORE, premises considered, the Motion/Petition is

hereby GRANTED. The proclamation of Respondent ALBERTO
J. JARAMILLA [herein petitioner] is ANNULLED. A New Municipal
Board of Canvassers is hereby created composed of the
following:

Atty. NELIA AUREUS – Chairman

Atty. MICHAEL D. DIONEDA – Vice Chairman

Atty. ALLEN FRANCIS F. ABAYA – Member

The New Board is hereby directed to immediately convene at the

Comelec Session Hall, Intramuros, Manila, after due notice to
parties and effect a correction in the entry in the Statement of
Votes by Precinct particularly the votes for Respondent Alberto
Jaramilla [herein petitioner], who should be credited with twenty
three (23) votes only. Thereafter, the New Board shall prepare a
corrected Certificate of Canvass and Proclamation on the basis of
the New Statement of Votes and proclaim the Petitioner [herein
private respondent Suyat] as the eighth (8th) Board Member of
Sta. Cruz, Ilocos Sur. Mr. Ireneo Habon Cortez shall be declared
the 7th Municipal Board Member. The New Board shall use the
Comelec copies of the election returns and Statement of Votes
pertaining to the instant case.

SO ORDERED.
Hence the present recourse by petitioner anchored on the
following grounds:

I. THAT THE COMMISSION ON ELECTION ERRED IN NOT

DISMISSING THE CASE CONSIDERING THAT THE PETITION
FILED BEFORE THE COMELEC WAS FILED BEYOND THE
PRESCRIPTIVE PERIOD AS SET FORTH IN THE COMELEC
RULES OF PROCEDURE.

II. THAT THE COMMISSION ON ELECTION ERRED IN GIVING

DUE COURSE TO THE PETITION INSTEAD OF DISMISSING IT
CONSIDERING THAT THE PETITION LACKED A
CERTIFICATION AGAINST FORUM-SHOPPING.

III. THAT THE COMMISSION ON ELECTION ERRED IN NOT

DISMISSING THE CASE FOR FAILURE TO PAY THE DOCKET
OR FILING FEE ON TIME.6

Before discussing the merits, although not raised in the petition,

the Court deems it appropriate to discuss the jurisdiction of the
COMELEC en banc in election cases. Article IX-C of the
Constitution states in part that:

Sec. 3. The Commission on Elections may sit en banc or in two

divisions, and shall promulgate its rules of procedure in order to
expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided
in division, provided that motions for reconsideration of decisions
shall be decided by the Commission en banc.7

As stated in the provision, and in line with the Court’s recent

pronouncement in Milla v. Balmores-Laxa,8 election cases
including pre-proclamation controversies should first be heard and
decided by a division of the COMELEC, and then by the
commission en banc if a motion for reconsideration of the division
is filed.1a\^/phi1.net
It must be noted however that this provision applies only in cases
where the COMELEC exercises its adjudicatory or quasi-judicial
powers, and not when it merely exercises purely administrative
functions. This doctrine was laid out in Castromayor v.
COMELEC,9 and reiterated in subsequent cases.10 Accordingly,
when the case demands only the exercise by the COMELEC of its
administrative functions, such as the correction of a manifest
mistake in the addition of votes or an erroneous tabulation in the
statement of votes, the COMELEC en banc can directly act on it
in the exercise of its constitutional function to decide questions
affecting elections.11

The Petition for Correction of Manifest Errors in the case at bar

alleges an erroneous copying of figures from the election return to
the Statement of Votes by Precinct. Such an error in the
tabulation of the results, which merely requires a clerical
correction without the necessity of opening ballot boxes or
examining ballots, demands only the exercise of the
administrative power of the COMELEC. Hence, the
Commission en banc properly assumed original jurisdiction over
the aforesaid petition.

Now we proceed to the merits of the case.

Petitioner bewails the fact that the COMELEC took cognizance of

respondent Suyat’s petition for correction despite its having been
filed beyond the 5-day reglementary period fixed in the
COMELEC Rules of Procedure and its lack of certification against
forum-shopping.12

Petitioner overlooks the fact that the COMELEC has the

discretion to suspend its rules or any portion thereof in the interest
of justice. Section 4, Rule 1 of the COMELEC Rules expressly
provides that:
SEC. 4. Suspension of the Rules – In the interest of justice and in
order to obtain speedy disposition of all matters pending before
the commission, these rules or any portion thereof may be
suspended by the Commission.

The COMELEC therefore has authority to suspend the

reglementary periods provided by the rules, or the requirement of
certification of non-forum shopping for that matter, in the interest
of justice and speedy resolution of the cases before it.13

Petitioner next points out respondent Suyat’s omission to pay the

prescribed filing fees.1a\^/phi1.net

As correctly pointed out by the Office of the Solicitor General, the

COMELEC is not constrained to dismiss a case before it by
reason of non-payment of filing fees.14 Section 18, Rule 40 the
COMELEC Rules of Procedure states:

SEC 18. Nonpayment of Prescribed Fees – If the fees above

prescribed are not paid, the Commission may refuse to take
action thereon until they are paid and may dismiss the action or
the proceeding.15

The use of the word "may" in the aforecited provision readily

shows that the COMELEC is conferred the discretion whether to
entertain the petition or not in case of non-payment of legal
fees.16 And even if it were not afforded such discretion, as
discussed above, it is authorized to suspend its rules or any
portion thereof in the interest of justice.17

It is noteworthy that petitioner only raised issues on the foregoing

technicalities, without questioning the COMELEC’s finding of
manifest error in the tabulation of votes. Even at the COMELEC
stage, his denial in his Answer18 was unsubstantiated by any
rebuttal evidence to disprove the submitted photocopies of the
election returns and statement of votes, which clearly showed the
erroneous addition of 50 votes in his favor. The COMELEC’s
unquestioned findings of fact are therefore sustained. The Court
reiterates that factual findings of the COMELEC based on its own
assessments and duly supported by evidence, are given
conclusive weight in the absence of arbitrariness or grave abuse
of discretion.19

Laws governing election contests must be liberally construed to

the end that the will of the people in the choice of public officials
may not be defeated by mere technical objections.20 Adherence to
technicality that would put a stamp on a palpably void
proclamation, with the inevitable result of frustrating the people’s
will, can never be countenanced.21

WHEREFORE, finding no grave abuse of discretion committed by

public respondent COMELEC, its Resolution en banc dated
October 24, 2002 is AFFIRMED. The petition is DISMISSED.

No pronouncement as to costs.

SO ORDERED.

G.R. No. 155717 October 23, 2003

ALBERTO JARAMILLA, petitioner,

vs.
COMMISSION ON ELECTIONS, ANTONIO SUYAT,
MUNICIPAL BOARD OF CANVASSERS OF STA. CRUZ,
ILOCOS SUR, THE NEW MUNICIPAL BOARD OF
CANVASSERS (COMELEC), AND IRENEO
CORTEZ, respondents.

DECISION

AZCUNA, J.:
For review before the Court is the instant petition
for certiorari1 with prayer for temporary restraining order and
preliminary injunction ascribing grave abuse of discretion to public
respondent Commission on Elections (COMELEC) in issuing
its en banc resolution dated October 24, 2002.

The antecedent facts, as summarized in the COMELEC

resolution,2 are as follows:

[Respondent] Antonio Suyat and [petitioner] Alberto J. Jaramilla

both ran for the position of Member of the Sangguniang Bayan in
the Municipality of Sta. Cruz, Ilocos Sur in the May 14, 2001
elections.

On May 16, 2001, the Municipal Board of Canvassers of Sta.

Cruz, proclaimed the winning candidates for the offices of Mayor,
Vice-Mayor and eight (8) members of the Sangguniang Bayan.
The Certificate of Canvass of Votes and Proclamation shows the
following results and ranking with respect to the members of the
Sangguniang Bayan, to wit:

Name of Candidates Total Votes Obtained

1. RAGUCOS, Ma. Luisa
6,324
Laxamana
2. ABAYA, Juan Jr., Andaquig 6,013
3. GINES, Fidel Cudiamat 5,789
4. QUILOP, Renato Avila 5,227
5. BILIGAN, Osias Depdepen 5,130
6. RUIZ, Agustin Turgano 4,972
7. JARAMILLA, Alberto Jimeno 4,815
8. CORTEZ, Ireneo Habon 4,807
In the tabulated results issued by the Election Officer and
Chairperson of the Municipal Board of Canvassers of Sta. Cruz, it
is shown that [respondent Suyat] obtained Four thousand seven
hundred seventy nine (4,779) votes and was ranked no. 9.

Upon review by [respondent Suyat], he discovered that [petitioner]

was credited with only twenty three (23) votes per Election Return
from Precinct No. 34A1. However, when the figures were
forwarded to the Statement of Votes by Precinct, [petitioner] was
credited with seventy three (73) votes for Precinct No. 34A1 or
fifty (50) votes more than what he actually obtained. If the entry
were to be corrected, the affected candidates would be ranked as
follows:

7. CORTEZ, Ireneo Habon – 4,807

8. SUYAT, Antonio – 4,779
9. JARAMILLA, Alberto – 4,765

On June 13, 2001, respondent Suyat filed before the

COMELEC en banc an Urgent Motion for Issuance of Order to
Reconvene,3 which the latter treated as a Petition for Correction of
Manifest Error. Petitioner countered in his Answer4 that said
petition should be dismissed for having been filed out of time and
for lack of the required certification of non-forum shopping.

On October 24, 2002, COMELEC en banc issued the assailed

resolution, the dispositive portion of which reads:5

WHEREFORE, premises considered, the Motion/Petition is

hereby GRANTED. The proclamation of Respondent ALBERTO
J. JARAMILLA [herein petitioner] is ANNULLED. A New Municipal
Board of Canvassers is hereby created composed of the
following:
 Atty. NELIA AUREUS – Chairman

Atty. MICHAEL D. DIONEDA – Vice Chairman

Atty. ALLEN FRANCIS F. ABAYA – Member

The New Board is hereby directed to immediately convene at the

Comelec Session Hall, Intramuros, Manila, after due notice to
parties and effect a correction in the entry in the Statement of
Votes by Precinct particularly the votes for Respondent Alberto
Jaramilla [herein petitioner], who should be credited with twenty
three (23) votes only. Thereafter, the New Board shall prepare a
corrected Certificate of Canvass and Proclamation on the basis of
the New Statement of Votes and proclaim the Petitioner [herein
private respondent Suyat] as the eighth (8th) Board Member of
Sta. Cruz, Ilocos Sur. Mr. Ireneo Habon Cortez shall be declared
the 7th Municipal Board Member. The New Board shall use the
Comelec copies of the election returns and Statement of Votes
pertaining to the instant case.

SO ORDERED.

Hence the present recourse by petitioner anchored on the

following grounds:

I. THAT THE COMMISSION ON ELECTION ERRED IN NOT

DISMISSING THE CASE CONSIDERING THAT THE PETITION
FILED BEFORE THE COMELEC WAS FILED BEYOND THE
PRESCRIPTIVE PERIOD AS SET FORTH IN THE COMELEC
RULES OF PROCEDURE.

II. THAT THE COMMISSION ON ELECTION ERRED IN GIVING

DUE COURSE TO THE PETITION INSTEAD OF DISMISSING IT
CONSIDERING THAT THE PETITION LACKED A
CERTIFICATION AGAINST FORUM-SHOPPING.
III. THAT THE COMMISSION ON ELECTION ERRED IN NOT
DISMISSING THE CASE FOR FAILURE TO PAY THE DOCKET
OR FILING FEE ON TIME.6

Before discussing the merits, although not raised in the petition,

the Court deems it appropriate to discuss the jurisdiction of the
COMELEC en banc in election cases. Article IX-C of the
Constitution states in part that:

Sec. 3. The Commission on Elections may sit en banc or in two

divisions, and shall promulgate its rules of procedure in order to
expedite disposition of election cases, including pre-proclamation
controversies. All such election cases shall be heard and decided
in division, provided that motions for reconsideration of decisions
shall be decided by the Commission en banc.7

As stated in the provision, and in line with the Court’s recent

pronouncement in Milla v. Balmores-Laxa,8 election cases
including pre-proclamation controversies should first be heard and
decided by a division of the COMELEC, and then by the
commission en banc if a motion for reconsideration of the division
is filed.1a\^/phi1.net

It must be noted however that this provision applies only in cases

where the COMELEC exercises its adjudicatory or quasi-judicial
powers, and not when it merely exercises purely administrative
functions. This doctrine was laid out in Castromayor v.
COMELEC,9 and reiterated in subsequent cases.10 Accordingly,
when the case demands only the exercise by the COMELEC of its
administrative functions, such as the correction of a manifest
mistake in the addition of votes or an erroneous tabulation in the
statement of votes, the COMELEC en banc can directly act on it
in the exercise of its constitutional function to decide questions
affecting elections.11
The Petition for Correction of Manifest Errors in the case at bar
alleges an erroneous copying of figures from the election return to
the Statement of Votes by Precinct. Such an error in the
tabulation of the results, which merely requires a clerical
correction without the necessity of opening ballot boxes or
examining ballots, demands only the exercise of the
administrative power of the COMELEC. Hence, the
Commission en banc properly assumed original jurisdiction over
the aforesaid petition.

Now we proceed to the merits of the case.

Petitioner bewails the fact that the COMELEC took cognizance of

respondent Suyat’s petition for correction despite its having been
filed beyond the 5-day reglementary period fixed in the
COMELEC Rules of Procedure and its lack of certification against
forum-shopping.12

Petitioner overlooks the fact that the COMELEC has the

discretion to suspend its rules or any portion thereof in the interest
of justice. Section 4, Rule 1 of the COMELEC Rules expressly
provides that:

SEC. 4. Suspension of the Rules – In the interest of justice and in

order to obtain speedy disposition of all matters pending before
the commission, these rules or any portion thereof may be
suspended by the Commission.

The COMELEC therefore has authority to suspend the

reglementary periods provided by the rules, or the requirement of
certification of non-forum shopping for that matter, in the interest
of justice and speedy resolution of the cases before it.13

Petitioner next points out respondent Suyat’s omission to pay the

prescribed filing fees.1a\^/phi1.net
As correctly pointed out by the Office of the Solicitor General, the
COMELEC is not constrained to dismiss a case before it by
reason of non-payment of filing fees.14 Section 18, Rule 40 the
COMELEC Rules of Procedure states:

SEC 18. Nonpayment of Prescribed Fees – If the fees above

prescribed are not paid, the Commission may refuse to take
action thereon until they are paid and may dismiss the action or
the proceeding.15

The use of the word "may" in the aforecited provision readily

shows that the COMELEC is conferred the discretion whether to
entertain the petition or not in case of non-payment of legal
fees.16 And even if it were not afforded such discretion, as
discussed above, it is authorized to suspend its rules or any
portion thereof in the interest of justice.17

It is noteworthy that petitioner only raised issues on the foregoing

technicalities, without questioning the COMELEC’s finding of
manifest error in the tabulation of votes. Even at the COMELEC
stage, his denial in his Answer18 was unsubstantiated by any
rebuttal evidence to disprove the submitted photocopies of the
election returns and statement of votes, which clearly showed the
erroneous addition of 50 votes in his favor. The COMELEC’s
unquestioned findings of fact are therefore sustained. The Court
reiterates that factual findings of the COMELEC based on its own
assessments and duly supported by evidence, are given
conclusive weight in the absence of arbitrariness or grave abuse
of discretion.19

Laws governing election contests must be liberally construed to

the end that the will of the people in the choice of public officials
may not be defeated by mere technical objections.20 Adherence to
technicality that would put a stamp on a palpably void
proclamation, with the inevitable result of frustrating the people’s
will, can never be countenanced.21
WHEREFORE, finding no grave abuse of discretion committed by
public respondent COMELEC, its Resolution en banc dated
October 24, 2002 is AFFIRMED. The petition is DISMISSED.

No pronouncement as to costs.

SO ORDERED.

.R. No. 209185 October 25, 2013

MARC DOUGLAS IV C. CAGAS, Petitioner,

vs.
COMMISSION ON ELECTIONS represented by its CHAIRMAN
ATTY. SIXTO BRILLANTES JR. and the PROVINCIAL
ELECTION OFFICER OF DAVAO DEL SUR, represented by
ATTY. MA. FEBES BARLAAN, Respondents.

RESOLUTION

CARPIO, J.:

This Resolution resolves the Petition for Prohibition,1 filed by Marc

Douglas IV C. Cagas (Cagas), in his capacity as taxpayer, to
prohibit the Commission on Elections (COMELEC) from
conducting a plebiscite for the creation of the province of Davao
Occidental simultaneously with the 28 October 2013 Barangay
Elections within the whole province of Davao del Sur, except in
Davao City.

Cagas, while he was representative of the first legislative district

of Davao del Sur, filed with Hon. Franklin Bautista, then
representative of the second legislative district of the same
province, House Bill No. 4451 (H.B. No. 4451), a bill creating the
province of Davao Occidental. H.B. No. 4451 was signed into law
as Republic Act No. 10360 (R.A. No. 10360), the Charter of the
Province of Davao Occidental.
Sections 2 and 7 of R.A. No. 10360 provide for the composition of
the new provinces of Davao Occidental and Davao del Sur:

Sec. 2. Province of Davao Occidental. – There is hereby created

a new province from the present Province of Davao del Sur to be
known as the Province of Davao Occidental, consisting of the
municipalities of Sta. Maria, Malita, Don Marcelino, Jose Abad
Santos and Sarangani. The territorial jurisdiction of the Province
of Davao Occidental shall be within the present metes and
bounds of all the municipalities that comprise the Province of
Davao Occidental.

xxxx

Sec. 7. Legislative District. – The Province of Davao Occidental

shall have its own legislative district to commence in the next
national and local elections after the effectivity of this Charter.
Henceforth, the municipalities of Sta. Maria, Malita, Don
Marcelino, Jose Abad Santos and Sarangani shall comprise the
Lone Legislative District of the Province of Davao Occidental
while the City of Digos and the municipalities of Malalag, Sulop,
Kiblawan, Padada, Hagonoy, Sta. Cruz, Matanao, Bansalan and
Magsaysay shall comprise the Lone Legislative District of the
Province of Davao del Sur.

xxxx

Section 46 of R.A. No. 10360 provides for the date of the holding
of a plebiscite.

Sec. 46. Plebiscite. – The Province of Davao Occidental shall be

created, as provided for in this Charter, upon approval by the
majority of the votes cast by the voters of the affected areas in a
plebiscite to be conducted and supervised by the Commission on
Elections (COMELEC) within sixty (60) days from the date of the
effectivity of this Charter.
The amount necessary for the conduct of the plebiscite shall be
borne by the COMELEC.

R.A. No. 10360 was passed by the House of Representatives on

28 November 2012, and by the Senate on 5 December 2012.
President Benigno S. Aquino III approved R.A. No. 10360 on 14
January 2013.2 R.A. No. 10360 was published in the Philippine
Star and the Manila Bulletin only on 21 January 2013.
Considering that R.A. No. 10360 shall take effect 15 days after its
publication in at least two newspapers of general and local
circulation,3 COMELEC, therefore, only had until 6 April 2013 to
conduct the plebiscite.4

As early as 27 November 2012, prior to the effectivity of R.A. No.

10360, the COMELEC suspended the conduct of all plebiscites as
a matter of policy and in view of the preparations for the 13 May
2013 National and Local Elections.5 On 9 July 2013, the
COMELEC extended

the policy on suspension of the holding of plebiscites by resolving

to defer action on the holding of all plebiscites until after the 28
October 2013 Barangay Elections.6 During a meeting held on 31
July 2013, the COMELEC decided to hold the plebiscite for the
creation of Davao Occidental simultaneously with the 28 October
2013 Barangay Elections to save on expenses7 . The COMELEC,
in Minute Resolution No. 13-0926, approved the conduct of the
Concept of Execution for the conduct of the plebiscite on 6 August
2013.8 On 14 August 2013, Bartolome J. Sinocruz, Jr., the Deputy
Executive Director for Operations of the COMELEC, issued a
memorandum furnishing a copy of Minute Resolution No. 13-0926
to Atty. Remlane M. Tambuang, Regional Election Director of
Region XI; Atty. Ma. Febes M. Barlaan, Provincial Election
Supervisor of Davao del Sur; and to all election officers of Davao
del Sur. On 6 September 2013, the COMELEC promulgated
Resolution Nos. 97719 and 9772.10 Resolution No. 9771 provided
for the following calendar of activities:

DATE/ ACTIVITIES PROHIBITED

PERIOD ACTS
SEPT. 09, Last day to constitute the
2013 (MON) Plebiscite Board of
Canvassers
SEPT. 28, PLEBISCITE PERIOD Bearing, carrying
2013 (SAT) – or transporting
NOV. 12, firearms or other
2013 (TUE) deadly weapons
(30 DAYS in public places,
BEFORE THE including any
DATE OF building, street,
PLEBISCITE park, private
AND 15 vehicle or public
DAYS conveyance, or
THEREAFTE even if licensed to
R possess or carry
the same, unless
authorized in
writing by the
Commission (Sec.
261 (p) (q) OEC,
as amended by
Sec. 32, RA
7166);
Suspension of
local elective
officials (Sec. 261
(x), OEC);
Transfer of
officers and
employees in the
civil service (Sec.
261 (h), OEC);
Alteration of
territory of a
precinct or
establishment of a
new precinct
(Sec. 5, R.A.
8189)
Organizing or
maintaining
reaction/strike
forces or similar
forces (Sec. 261,
(u), OEC);
Illegal release of
prisoners (Sec.
261 (n), OEC);
Use of security
personnel or
bodyguards by
candidates,
whether or not
such bodyguards
are regular
members or
officers of the
Philippine
 National Police or
Armed Forces of
the Philippines or
other law
enforcement
agency (Sec. 261
(t), OEC, as
amended by Sec.
33, RA 7166);

1
Release,
disbursement or
expenditures of
public funds (Sec.
261 (v),
OEC);Constructio
n of public works,
delivery of
materials for
public works and
issuance of
treasury warrants
or similar devices
for a future
undertaking
chargeable
against public
funds (Sec. 261,
(w) OEC).
SEPTEMBER INFORMATIONCAMPAI Making any
28, 2013 GN PERIOD donation or gift in
(SAT) to cash or in kind,
OCTOBER etc. (Sec. 104,
26, 2013 OEC);Use of
(SAT) armored/ land/
water/ air craft.
(Sec. 261 (r),
OEC);Appointing
or using special
policemen,
special/
confidential
agents or the like.
(Sec. 261 (m),
OEC);
SEPTEMBER Issuance of
28, 2013 appointments,
(SAT) to promotions,
OCTOBER creation of new
28, 2013 positions, or
(MON) giving of salary
increases.
OCTOBER EVE OF PLEBISCITE Campaigning
27, 2013 DAY (Sec. 3, OEC);
(SUN)
Giving, accepting
free
transportation,
foods, drinks, and
things of value
(Sec. 89, OEC);
Selling, furnishing,
offering, buying,
 serving or taking
intoxicating liquor
(Sec. 261 (dd),
(1), OEC).(NOTE:
Acts mentioned in
the three (3)
preceding
paragraphs are
prohibited until
election day.)
OCTOBER PLEBISCITE DAYCasting Vote-buying and
28, 2013 of votes- (from 7:00 a.m. vote selling (Sec.
(MON) to 3:00 p.m. simultaneous 261 (a),
with the voting for the OEC);Voting more
Barangay and SK than once or in
Elections)Counting of substitution of
votes shall be after the another (Sec. 261
counting of votes for (z) (2) and (3),
Barangay and SK OEC);Campaignin
Elections)Convening of g (Sec. 3,
the City Plebiscite Board OEC);Soliciting
of Canvassers – (6:00 votes or
p.m.) undertaking any
propaganda for or
against any
candidate or any
political party
within the polling
place or within
thirty (30) meters
thereof (Sec. 261
(cc) (6),
OEC);Selling,
 furnishing,
offering, buying,
serving or taking
intoxicating liquor,
etc. (Sec. 261
(dd) (1),
OEC);Opening of
booths or stalls for
the sale, etc., of
wares,
merchandise or
refreshments,
within thirty (30)
meters radius
from the polling
place. (Sec. 261
(dd) (2)
OEC);Giving
and/or accepting
free
transportation,
food, drinks and
things of value
(Sec. 89,
OEC);Holding of
fairs, cockfights,
boxing, horse
races or similar
sports. (Sec. 261
(dd) (3), OEC).

Resolution No. 9772, on the other hand, provided that copies of

R.A. No. 10360 be posted11 and that information campaigns be
conducted prior to the plebiscite.12
On 9 October 2013, Cagas filed the present petition for
prohibition. Cagas cites three causes of action:

1. COMELEC is without authority or legal basis to AMEND or

MODIFY Section 46 of Republic Act No. 10360 by mere MINUTE
RESOLUTION because it is only CONGRESS who can validly
amend, repel [sic] or modify existing laws, thus COMELEC [sic]
act in suspending the holding of a plebiscite is unconstitutional;13

2. COMELEC is without authority or legal basis to hold a

plebiscite this coming October 28, 2013 for the creation of the
Province of Davao Occidental because Section 46 of Republic Act
No. 10360 has already lapsed;14 and

3. Petitioner has no other adequate remedy to prevent the

COMELEC from holding the Plebiscite on October 28, 2013 for
the creation of the Province of Davao Occidental except through
the issuance of Temporary Restraining Order and Preliminary
Injunction because COMELEC had already commenced the
preparation for holding of the Plebiscite for the creation of the
Province of Davao Occidental synchronizing it with that of the
Barangay and SK elections this coming October 28, 2013.15

On 17 October 2013, we issued a Resolution requiring

respondents COMELEC, represented by its Chairperson, Hon.
Sixto Brillantes, Jr., and the Provincial Election Officer of Davao
del Sur, represented by Atty. Ma. Febes Barlaan, to file their
comment to Cagas’ petition not later than 21 October 2013.

The respondents, through the Office of the Solicitor General

(OSG), filed their comment on 21 October 2013. The OSG raises
the following arguments:

1. The 1987 Constitution does not fix the period to hold a

plebiscite for the creation of a local government unit;
 2. There was logistical and financial impossibility for the
COMELEC to hold a plebiscite at a mere two months’ notice;

3. Legislative intent is for R.A. No. 10360 to be implemented;

4. Public interest demands that the plebiscite be conducted;

and

5. The COMELEC did not abuse its discretion in issuing the

questioned Resolutions.16

In this Resolution, we simplify the issues raised by the parties,

thus: Did the COMELEC act without or in excess of its jurisdiction
or with grave abuse of discretion amounting to lack or excess of
jurisdiction when it resolved to hold the plebiscite for the creation
of the Province of Davao Occidental on 28 October 2013,
simultaneous with the Barangay Elections?

We answer in the negative.

The COMELEC’s power to administer elections

includes the power to conduct a plebiscite beyond the schedule

prescribed by law.

The conduct of a plebiscite is necessary for the creation of a

province. Sections 10 and 11 of Article X of the Constitution
provide that:

Sec. 10. No province, city, municipality, or barangay may be

created, divided, merged, abolished, or its boundary substantially
altered, except in accordance with the criteria established in the
local government code and subject to approval by a majority of
the votes cast in a plebiscite in the political units directly affected.
Sec. 11. The Congress may, by law, create special metropolitan
political subdivisions, subject to a plebiscite as set forth in Section
10 hereof. The component cities and municipalities shall retain
their basic autonomy and shall be entitled to their own local
executive and legislative assemblies. The jurisdiction of the
metropolitan authority that will thereby be created shall be limited
to basic services requiring coordination. Section 10, Article X of
the Constitution emphasizes the direct exercise by the people of
their sovereignty. After the legislative branch’s enactment of a law
to create, divide, merge or alter the boundaries of a local
government unit or units, the people in the local government unit
or units directly affected vote in a plebiscite to register their
approval or disapproval of the change.17

The Constitution does not specify a date as to when plebiscites

should be held. This is in contrast with its provisions for the
election of members of the legislature in Section 8, Article
VI18 and of the President and Vice-President in Section 4, Article
VII.19 The Constitution recognizes that the power to fix the date of
elections is legislative in nature, which is shown by the exceptions
in previously mentioned Constitutional provisions, as well as in
the election of local government officials.20

Section 10 of R.A. No. 7160 furnishes the general rule as to when

a plebiscite may be held:

Sec. 10. Plebiscite Requirement. – No creation, division, merger,

abolition, or substantial alteration of boundaries of local
government units shall take effect unless approved by a majority
of the votes cast in a plebiscite called for the purpose in the
political unit or units directly affected. Said plebiscite shall be
conducted by the Commission on Elections (COMELEC) within
one hundred twenty (120) days from the date of effectivity of the
law or ordinance effecting such action, unless said law or
ordinance fixed another date.
Section 46 of R.A. No. 10360, however, specifically provides that
the plebiscite for the creation of the province of Davao Occidental
be held within 60 days from the effectivity of R.A. No. 10360, or
until 6 April 2013.21 Cagas claims that R.A. No. 10360 "did not
confer express or implied power to COMELEC to exercise
discretion when the plebiscite for the creation of the Province of
Davao Occidental will be held. On the contrary, said law provides
a specific period when the COMELEC should conduct a
plebiscite."22 Cagas views the period "60 days from the effectivity"
in R.A. No. 10360 as absolute and mandatory; thus, COMELEC
has no legal basis to hold a plebiscite on 28 October 2013.

The Constitution, however, grants the COMELEC the power to

"enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum and
recall."23 The COMELEC has "exclusive charge of the
enforcement and administration of all laws relative to the conduct
of elections for the purpose of ensuring free, orderly and honest
elections."24 The text and intent of Section 2(1) of Article IX(C) is
to give COMELEC "all the necessary and incidental powers for it
to achieve the objective of holding free, orderly, honest, peaceful
and credible elections."25

Sections 5 and 6 of Batas Pambansa Blg. 881 (B.P. Blg. 881) the
Omnibus Election Code, provide the COMELEC the power to set
elections to another date.

Sec. 5. Postponement of election.- When for any serious cause

such as violence, terrorism, loss or destruction of election
paraphernalia or records, force majeure, and other analogous
causes of such a nature that the holding of a free, orderly and
honest election should become impossible in any political
subdivision, the Commission, motu proprio or upon a verified
petition by any interested party, and after due notice and hearing,
whereby all interested parties are afforded equal opportunity to be
heard, shall postpone the election therein to a date which should
be reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause for such postponement
or suspension of the election or failure to elect.

Sec. 6. Failure of election. - If, on account of force majeure,

violence, terrorism, fraud, or other analogous causes the election
in any polling place has not been held on the date fixed, or had
been suspended before the hour fixed by law for the closing of the
voting, or after the voting and during the preparation and the
transmission of the election returns or in the custody or canvass
thereof, such election results in a failure to elect, and in any of
such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a
verified petition by any interested party and after due notice and
hearing, call for the holding or continuation of the election not
held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended
or which resulted in a failure to elect but not later than thirty days
after the cessation of the cause of such postponement or
suspension of the election or failure to elect.

The tight time frame in the enactment, signing into law, and
effectivity of R.A. No. 10360 on 5 February 2013, coupled with the
subsequent conduct of the National and Local Elections on 13
May 2013 as mandated by the Constitution, rendered impossible
the holding of a plebiscite for the creation of the province of
Davao Occidental on or before 6 April 2013 as scheduled in R.A.
No. 10360. We also take judicial notice of the COMELEC’s
burden in the accreditation and registration of candidates for the
Party-List Elections.26 The logistic and financial impossibility of
holding a plebiscite so close to the National and Local Elections is
unforeseen and unexpected, a cause analogous to force majeure
and administrative mishaps covered in Section 5 of B.P. Blg. 881.
The COMELEC is justified, and did not act with grave abuse of
discretion, in postponing the holding of the plebiscite for the
creation of the province of Davao Occidental to 28 October 2013
to synchronize it with the Barangay Elections.

The OSG illustrated the COMELEC’s predicament in this manner:

To be sure, at the time R.A. No. 10360 was approved, the

COMELEC had to deliver and accomplish the following, among
many others, for the May 2013 National and Local Elections:

1. Preparation of the Project of Precincts indicating the total

number of established precincts and the number of
registered voters per precincts [sic] in a city or municipality.

2. Constitution of the Board of Election Inspectors including

the precincts where they will be assigned and the barangay
where the precinct is located.

3. Inspection, verification and sealing of the Book of Voters

containing the approved voter registration records of
registered voters in the particular precinct which must be
inspected, verified, and sealed.

4. Finalization and printing of the computerized voters list for

use on election day.

5. The preparation, bidding, printing and distribution of the

voters’ information.

6. Configuration, testing, and demonstration of the PCOS

machines and their distribution to the different precincts.

To comply with the 60-day period to conduct the plebiscite then,

as insisted, petitioner would have the COMELEC hold off all of its
above tasks. If COMELEC abandoned any of its tasks or did not
strictly follow the timetable for the accomplishment of these tasks
then it could have put in serious jeopardy the conduct of the May
2013 National and Local Elections. The COMELEC had to focus
all its attention and concentrate all its manpower and other
resources on its preparation for the May 2013 National and Local
Elections, and to ensure that it would not be derailed, it had to
defer the conduct of all plebiscites including that of R.A. No.
10360.

Parenthetically, for the COMELEC to hold the plebiscite for the

ratification of R.A. No. 10360 within the fixed period, it would have
to reconfigure for said purpose some of the PCOS machines that
were already configured for the May 2013 National and Local
Elections; or in the alternative, conduct the plebiscite manually.

However, conducting the plebiscite manually would require

another set of ballots and other election paraphernalia. Besides,
another set of election materials would also require additional
logistics for printing, checking, packing, and deployment thereof.
Lest it be forgotten, that all of these things should undergo public
bidding.

Since the plebiscite would be a separate undertaking, the

COMELEC would have to appoint separate sets of boards of
election inspectors, tellers, and other personnel to canvass the
result of the plebiscite – all of which would have entailed further
cost for the COMELEC whose budget had already been overly
stretched to cover the May 2013 National and Local Elections.

More importantly, it bears stressing that the COMELEC was not

given a special budget to defray the cost of the plebiscite. In fact,
the COMELEC had to take ₱11 million from its savings and from
the Barangay Elections budget to finance the plebiscite to ratify
R.A. No. 10360 on October 28, 2013.

The COMELEC’s questioned Resolution then directing the

holding of the plebiscite for the ratification of R.A. No. 10360
simultaneously with the Barangay Elections was not an abuse of
its discretion, as alleged, but simply an exercise of prudence,
because as the COMELEC itself noted, doing so "will entail less
expense than holding it separately." [p. 9, Resolution No. 13-
0926, Annex B, Petition.]

The determination of the feasibility of holding a plebiscite on a

given date is within the competence and discretion of the
COMELEC. Petitioner cannot therefore simply insist that the
COMELEC should have complied with the period specified in the
law when doing so would be virtually impossible under the
circumstances.27

This Court has rejected a too literal interpretation of election laws

in favor of holding free, orderly, honest, peaceful and credible
elections.

In Pangandaman v. COMELEC,28 Lining Pangandaman

(Pangandaman) filed a petition for certiorari and prohibition with
prayer for temporary restraining order and preliminary injunction
to challenge the Omnibus Order of the COMELEC En Banc. The
COMELEC En Banc ordered the conduct of special elections in
certain municipalities in Lanao del Sur on 18 and 25 July 1998, or
more than 30 days after the failure of elections on 11 May 1998.
Like Cagas, Pangandaman insisted on a strict compliance with
the schedule of the holding of special elections. Pangandaman
asserted that COMELEC’s authority to call a special election was
limited by the 30-day period and that Congress had the power to
call a special election after the 30th day. We admonished
Pangandaman against a too literal interpretation of the law, and
protected COMELEC’s powers against the straitjacketing by
procedural rules.

It is a basic precept in statutory construction that a statute should

be interpreted in harmony with the Constitution and that the spirit,
rather than the letter of the law determines its construction; for
that reason, a statute must be read according to its spirit and
intent. Thus, a too literal interpretation of the law that would lead
to absurdity prompted this Court to —

x x x admonish against a too-literal reading of the law as this is

apt to constrict rather than fulfill its purpose and defeat the
intention of its authors. That intention is usually found not in ‘the
letter that killeth but in the spirit that vivifieth’ x x x

Section 2(1) of Article IX(C) of the Constitution gives the

COMELEC the broad power to "enforce and administer all laws
and regulations relative to the conduct of an election, plebiscite,
initiative, referendum and recall." There can hardly be any doubt
that the text and intent of this constitutional provision is to give
COMELEC all the necessary and incidental powers for it to
achieve the objective of holding free, orderly, honest, peaceful
and credible elections.

Pursuant to this intent, this Court has been liberal in defining the
parameters of the COMELEC’s powers in conducting elections.
As stated in the old but nevertheless still very much applicable
case of Sumulong v. COMELEC:

Politics is a practical matter, and political questions must be dealt

with realistically — not from the standpoint of pure theory. The
Commission on Elections, because of its fact-finding facilities, its
contacts with political strategists, and its knowledge derived from
actual experience in dealing with political controversies, is in a
peculiarly advantageous position to decide complex political
questions x x x. There are no ready made formulas for solving
public problems. Time and experience are necessary to evolve
patterns that will serve the ends of good government. In the
matter of the administration of laws relative to the conduct of
election x x x we must not by any excessive zeal take away from
the Commission on Elections that initiative which by constitutional
and legal mandates properly belongs to it.
More pointedly, this Court recently stated in Tupay Loong v.
COMELEC, et al., that "Our elections are not conducted under
laboratory conditions. In running for public offices, candidates do
not follow the rules of Emily Post. Too often, COMELEC has to
make snap judgments to meet unforeseen circumstances that
threaten to subvert the will of our voters. In the process, the
actions of COMELEC may not be impeccable, indeed, may even
be debatable. We cannot, however, engage in a swivel chair
criticism of these actions often taken under very difficult
circumstances."

The purpose of the governing statutes on the conduct of elections

—

x x x is to protect the integrity of elections to suppress all evils that

may violate its purity and defeat the will of the voters. The purity
of the elections is one of the most fundamental requisites of
popular government. The Commission on Elections, by
constitutional mandate, must do everything in its power to secure
a fair and honest canvass of the votes cast in the elections. In the
performance of its duties, the Commission must be given a
considerable latitude in adopting means and methods that will
insure the accomplishment of the great objective for which it was
created — to promote free, orderly, and honest elections. The
choice of means taken by the Commission on Elections, unless
they are clearly illegal or constitute grave abuse of discretion,
should not be interfered with.

Guided by the above-quoted pronouncement, the legal compass

from which the COMELEC should take its bearings in acting upon
election controversies is the principle that " clean elections control
the appropriateness of the remedy."

In fixing the date for special elections the COMELEC should see
to it that: 1.] it should not be later than thirty (30) days after the
cessation of the cause of the postponement or suspension of the
election or the failure to elect; and, 2.] it should be reasonably
close to the date of the election not held, suspended or which
resulted in the failure to elect.1avvphi1 The first involves a
question of fact. The second must be determined in the light of
the peculiar circumstances of a case. Thus, the holding of
elections within the next few months from the cessation of the
cause of the postponement, suspension or failure to elect may still
be considered "reasonably close to the date of the election not
held."

In this case, the COMELEC can hardly be faulted for tardiness.

The dates set for the special elections were actually the nearest
dates from the time total/partial failure of elections was
determined, which date fell on July 14, 1998, the date of
promulgation of the challenged Omnibus Order. Needless to
state, July 18 and 25, the dates chosen by the COMELEC for the
holding of special elections were only a few days away from the
time a total/partial failure of elections was declared and, thus,
these were "dates reasonably close" thereto, given the prevailing
facts herein. Furthermore, it bears stressing that in the exercise of
the plenitude of its powers to protect the integrity of elections, the
COMELEC should not and must not be straitjacketed by
procedural rules in the exercise of its discretion to resolve election
disputes.29

In Sambarani v. COMELEC,30 petitioners were candidates for

punong barangay in different barangays in Lanao del Sur. There
was a failure of elections in the 15 July 2002 Synchronized
Barangay and Sangguniang Kabataan (SK) Elections, and special
elections were set on 13 August 2002 in the affected barangays.
No special elections were held on 13 August 2002, so petitioners
asked the COMELEC to declare a failure of elections in their
barangays and to hold another special election. The COMELEC,
however, directed the Department of Interior and Local
Government to appoint the Barangay Captains, Barangay
Kagawads, SK Chairmen, and SK

Kagawads in the affected barangays. The COMELEC stated that

it is no longer in a position to call for another special election
since Section 6 of the Omnibus Election Code provides that
"special elections shall be held on a date reasonably close to the
date of the election not held, but not later than thirty days after
cessation of the cause of such postponement."

We directed the COMELEC to conduct special elections and

stated that the deadline cannot defeat the right of suffrage of the
people.

The prohibition on conducting special elections after thirty days

from the cessation of the cause of the failure of elections is not
absolute.1âwphi1 It is directory, not mandatory, and the
COMELEC possesses residual power to conduct special elections
even beyond the deadline prescribed by law. The deadline in
Section 6 cannot defeat the right of suffrage of the people as
guaranteed by the Constitution. The COMELEC erroneously
perceived that the deadline in Section 6 is absolute. The
COMELEC has broad power or authority to fix other dates for
special elections to enable the people to exercise their right of
suffrage. The COMELEC may fix other dates for the conduct of
special elections when the same cannot be reasonably held within
the period prescribed by law.31

It is thus not novel for this Court to uphold the COMELEC’s broad
power or authority to fix other dates for a plebiscite, as in special
elections, to enable the people to exercise their right of suffrage.
The COMELEC thus has residual power to conduct a plebiscite
even beyond the deadline prescribed by law. The date 28 October
2013 is reasonably close to 6 April 2013, and there is no reason
why the plebiscite should not proceed as scheduled by the
COMELEC. The OSG points out that public interest demands that
the plebiscite be conducted.

At this point, there is nothing more for the COMELEC to do except

to hold the plebiscite as scheduled on October 18, [sic] 2013. In
fact, the COMELEC already scheduled the shipment and
deployment of the election paraphernalia to all the precincts in
Davao del Sur, except Davao City.

The COMELEC had put so much work and effort in its preparation
for the conduct of the plebiscite. A substantial amount of funds
have also been defrayed for the following election undertakings:

1 Bidding for election paraphernalia;

2 Cleansing of voters registration list;

3 Preparation, bidding, printing and distribution of the voters

information;

4 Preparation and completion of the projects of precincts;

5 Printing of ballots;

6 Constitution of the Board of Election Inspectors;

7 Training and assignment of personnel; and

8 Information dissemination campaign.

To demand now that the COMELEC desist from holding the

plebiscite would be an utter waste of time, effort and resources,
not to mention its detriment to public interest given that public
funds are involved.32

In election law, the right of suffrage should prevail over mere

scheduling mishaps in holding elections or plebiscites. Indeed,
Cagas insistence that only Congress can cure the alleged legal
infirmity in the date of holding the plebiscite for the creation of the
Province of Davao Occidental fails in light of the absence of
abuse of discretion of the COMELEC. Finally, this Court finds it
unacceptable to utilize more of our taxpayers time and money by
preventing the COMELEC from holding the plebiscite as now
scheduled.

WHEREFORE, we DISMISS the petition for lack of merit.

.R. No. 230249, April 24, 2018

ATTY. PABLO B. FRANCISCO, Petitioner, v. COMMISSION ON

ELECTIONS AND ATTY. JOHNIELLE KEITH P.
NIETO, Respondents.

DECISION

VELASCO JR., J.:

Nature of the Case

This treats of the petition for certiorari under Rule 64, in relation to
Rule 65, of the Rules of Court filed by Atty. Pablo B. Francisco
(Francisco), which seeks to nullify the February 2, 2017
Resolution1 of the public respondent Commission on Elections
(COMELEC) En Banc. The assailed ruling dismissed Francisco's
Petition for Disqualification against private respondent Atty.
Johnielle Keith P. Nieto (Nieto).
The Facts

Francisco is a registered voter in Cainta, Rizal, while Nieto was

elected as mayor of the same municipality in 2013. Nieto filed a
certificate of candidacy (COC) to signify his bid for re-election for
the 2016 National and Local Elections.
On April 8, 2016, Francisco filed before the COMELEC a Petition
for Disqualification against Nieto, docketed as SPA 16-062(DC),
alleging that on April 1-2, 2016, respondent made financial
contributions out of the government coffers for the asphalt-paving
of the road entrance along Imelda Avenue of Cainta Green Park
Village. This, according to petitioner, amounted to the expending
of public funds within forty-five (45) days before the 2016 polls
and to illegal contributions for road repairs, respectively
punishable under Sees. 261(v)2 and 1043 of Batas Pambansa Blg.
881, otherwise known as the Omnibus Election Code (OEC).
Petitioner further claimed that the said asphalt paving was one of
the accomplishments that respondent reported on his Facebook
page.

In his Answer filed on April 22, 2016, Nieto countered that the
questioned asphalting project was subjected to public bidding on
March 15, 2016, with a Notice of Award issued on March 21,
2016. Thus, the asphalting project falls within the excepted public
works mentioned in Sec. 261(v)(l)(b) of the OEC.

During the preliminary conference on May 5, 2016, the counsels

for the parties marked their respective pieces of evidence.
Thereafter, an Order was issued giving them ten (10) days to file
their respective memoranda. The COMELEC would receive
copies of the memoranda on May 16, 2016 and, thereafter, the
case was deemed submitted for resolution. In the interim, Nieto
would be re-elected as municipal mayor of Cainta, Rizal, having
garnered the plurality of votes upon the conclusion of the 2016
polls.
Ruling of the COMELEC

On August 16, 2016, the COMELEC Second Division

promulgated a Resolution4 dismissing the Petition for
Disqualification against Nieto, and ruled in the following wise:
From the foregoing, it is clear that a candidate cannot be
disqualified without a prior finding that he or she is suffering from
a disqualification provided by law or the Constitution. To be sure,
in order to disqualify a candidate there must be a declaration by a
final judgment of a competent court that the candidate sought to
be disqualified is guilty of or found by the Commission to be
suffering from any disqualification provided by law or the
Constitution.

In the instant case, this Commission (Second Division) finds no

such prior declaration by a final judgment of a competent court or
of a finding of the Commission that Respondent is guilty of the
acts complained of Whether or not the Respondent is guilty of the
alleged acts is a prejudicial question which should be determined
first in a proper proceedings (sic) before a tribunal with competent
jurisdiction. In the absence of such prior finding of a competent
tribunal, the Commission has no basis to disqualify Respondent.
That said, the case must be dismissed.

WHEREFORE, premises considered, the instant Petition

is DISMISSED.

SO ORDERED.5
The COMELEC Second Division anchored its ruling on the
Court's landmark decision in Poe-Llamanzares v.
COMELEC6 (Poe) wherein the Court enunciated thusly:
Clearly, the amendment done in 2012 is an acceptance of the
reality of absence of an authorized proceeding for
determining before election the qualifications of candidate. Such
that, as presently required, to disqualify a candidate there
must be a declaration by a final judgment of a competent
court that the candidate sought to be disqualified "is guilty of
or found by the Commission to be suffering from any
disqualification provided by law or the Constitution."
Insofar as the qualification of a candidate is concerned, Rule 25
and Rule 23 are flipsides of one to the other. Both do not allow,
are not authorizations, are not vestment of jurisdiction, for
the COMELEC to determine the qualification of a
candidate. The facts of qualification must beforehand be
established in a prior proceeding before an authority
properly vested with jurisdiction. The prior determination of
qualification may be by statute, by executive order or by a
judgment of a competent court or tribunal. (emphasis added)
On September 8, 2016, petitioner moved for reconsideration from
the COMELEC Second Division's Resolution before the
COMELEC En Banc, arguing in the main that there need not be a
final judgment by a competent court that the candidate sought to
be disqualified is guilty of or is suffering from any disqualification.
He also stressed that since the act complained of can only be
committed within forty-five (45) days before the election, it would
be impossible to secure a conviction prior to initiating the
disqualification proceedings.

Despite these strong asseverations, however, the COMELEC En

Banc found no reason to disturb the ruling of the Second Division.
Instead, the seven-person Commission echoed the
pronouncement that for a petition for disqualification to prosper,
there must be "a declaration by a final judgment of a competent
court that the candidate sought to be disqualified is guilty of or
found by the Commission to be suffering from any disqualification
provided by law or the Constitution." The COMELEC En
Banc then deemed that the denial of the petition is the only
course of action it could take under the premises. Thus, in its
assailed February 2, 2017 Resolution, the electoral tribunal held:
Although the ruling enunciated by the Supreme Court in [Poe] has
effectively emasculated the Commission's power under
COMELEC Resolution No. 9523 to disqualify a candidate, it
cannot decline to apply such ruling in view of the principle that
"judicial decisions applying or interpreting the laws or the
Constitution shall form a part of the legal system of the
Philippines."

As such, Petitioner's reliance on the cases cited in the Motion for

Reconsideration is misplaced, considering that the Poe case is
now the controlling doctrine on the matter having been decided in
2016 and thus supersedes any previous ruling on the matter.

xxxx

Consequently, having no leg to stand on, the instant Motion for

Reconsideration is DENIED and the Resolution of the
Commission (Second Division) is hereby AFFIRMED.7
Hence, the instant recourse.
The Issues

The issues to be resolved by this Court can be condensed to the

following:

I. Whether or not the COMELEC acted in grave abuse of

discretion in ruling that a petition for disqualification
under Sec. 68 of the OEC cannot prosper without a
prior judgment finding the respondent guilty of an
election offense.
II. Whether or not petitioner sufficiently established by
substantial evidence that respondent violated Secs.
261(v) and 104 of the OEC.

Petitioner bewails that the COMELEC abruptly dismissed the

disqualification case. According to petitioner, the situation
ushered in by the COMELEC ruling would render toothless
Section 68 of the OEC against election irregularities because of
the virtual impossibility of compliance with the prior ruling
requirement. He also asserts that Poe does not apply to
candidates for local posts.

In his Comment, respondent Nieto cited the Poe ruling and

averred that since there was no prior declaration by a final
judgment of a competent court or of a finding of the Commission
that he is guilty of the acts complained of, the COMELEC Second
Division had no basis to disqualify him. Nieto likens the
requirement of a prior ruling to a prejudicial question that must
first be determined in a proper proceeding before a tribunal with
competent jurisdiction.

Moreover, Nieto reiterated the defense that the asphalting project

is outside the ambit of the ban against the expenditure of public
funds since it was contracted prior to the 45-day period before the
scheduled elections. It was, thus, an infrastructure activity lawfully
entered into by the local government unit of Cainta. In addition, no
public funds were disbursed for the project during the ban since
all expenses were for the account of the winning bidder, Franzcor
Trading and Construction.

The Office of the Solicitor General (OSG), representing the

government, in its Comment took a stance different from that of
the COMELEC. The OSG argued that Article IX-C, Section 2(2)
and (3) of the Constitution granted the COMELEC the quasi-
judicial power to decide all questions affecting elections, except
those involving the right to vote. This power further finds legal
mooring in the dual aspect of the prohibited acts constituting the
grounds for disqualification under Section 68 of the OEC. Lastly,
the OSG posited that the context of the Poe ruling bars its
application to local elective officials since the discussions were
aptly made within the confines of a national candidate for the
presidency.
The Court's Ruling
Petitioner is correct in his contention that a prior judgment is not a
precondition to filing a Petition for Disqualification. Nevertheless,
the petition must necessarily fail for lack of substantial evidence to
establish that private respondent committed an election offense.

Petitioner failed to comply with the material date rule

Before We discuss the merits of the case, the Court observes that
petitioner failed to state the material dates to establish that the
instant recourse was timely interposed. The petitioner merely
stated that he received a copy of the COMELEC's Resolution
denying his motion for reconsideration on February 20, 2017, and
that he was filing this petition within thirty (30) days from the said
date on March 22, 2017.8

The allegation is not sufficient. Rule 64, Section 3 of the Rules of

Court prescribes the period for elevating the COMELEC's ruling to
this Court thusly:
Section 3. Time to file petition. - The petition shall be filed within
thirty (30) days from notice of the judgment or final order or
resolution sought to be reviewed. The filing of a motion for new
trial or reconsideration of said judgment or final order or
resolution, if allowed under the procedural rules of the
Commission concerned, shall interrupt the period herein fixed. If
the motion is denied, the aggrieved party may file the petition
within the remaining period, but which shall not be less than five
(5) days in any event, reckoned from notice of denial.
Clear from the provision is that the intervening period petitioner
utilized in moving for reconsideration before the COMELEC must
be deducted from the thirty (30)-day period for resorting to a Rule
64 petition. As held in Pates v. COMELEC,9 the fresh period rule
in Neypes v. Court of Appeals10 that resets the period of the fi1ing
of an appeal from the date of receipt of the ruling on
reconsideration is applicable only in civil cases, not in election
controversies. Filing a motion for reconsideration before the
COMELEC then almost guarantees that the full 30-day period
could not be availed of.

In the case at bar, petitioner failed to indicate when he received a

copy of the August 16, 2016 Resolution of the COMELEC Second
Division, from which he moved for reconsideration on September
8, 2016. The Court is then unable to determine how many days
should be deducted from his period for filing a Rule 64 petition
and, consequently, if the instant recourse had been filed on time.
The particular date of receipt is of utmost significance in this case
since petitioner cannot deny that he availed of the full 30-day
period from February 20, 2017 to March 22, 2017. This means
that unless petitioner filed his motion for reconsideration on the
very same day he received the COMELEC's August 16, 2016
Resolution, the instant petition had been filed out of time. In any
case, non-compliance with the material date rule, in itself, is
already a ground for dismissal.11

Revisiting Poe and strengthening the jurisdiction of the

COMELEC

Public respondent COMELEC relied heavily on the Court's

pronouncement in Poe when it dismissed the election
controversy. The Court, however, takes this opportunity to rectify
Our position in Poe and to uphold the jurisdiction of the
COMELEC as strengthened under the present Constitution.

For perspective, the COMELEC was never part of the original

version of the 1935 Constitution. Prior to its creation, it was the
then Department of Interior, through an Executive Bureau then
directly, that superintended the conduct of elections.12 The Courts
were charged with resolving questions affecting the right to vote
as well as contested elections of local elective officials, while the
Secretary of Interior was vested with the authority to enforce the
election laws and assign local authorities to perform ministerial
duties relative thereto.

The close official relationship between the President and the

Secretary of Interior, however, aroused suspicion that the latter
had been administering election statutes not for the purpose of
securing honest and free elections, but to serve the political
interest of the party in power to which they belonged. They were
never entirely free from suspicion of acting with partisan bias. And
this general dissatisfaction and distrust over the manner the
elections were conducted at that time impelled the National
Assembly to propose the creation of the COMELEC by
constitutional amendment.13

Through a plebiscite held on June 17, 1940, several amendments

were introduced to the 1935 Constitution: modifying the term of
office of the President and the Vice-President from six (6) years to
four (4) years, but with re-election for another term establishing a
bicameral Congress composed of the Senate as the upper house
and the House of Representatives as the lower house; and
creating an independent COMELEC.

Since its creation, the COMELEC's power had been increased in

each incarnation of the Constitution to reflect the country's
awareness of the need to provide greater regulation and
protection to our electoral processes and to ensure their
integrity.14 To demonstrate, Article X, Section 2 of the 1935
Constitution, as amended, declares the power of the electoral
commission thusly:
Section 2. The Commission on Elections shall have exclusive
charge of the enforcement and administration of all laws relative
to the conduct of elections and shall exercise all other functions
which may be conferred upon it by law. It shall decide, save
those involving the right to vote, all administrative
questions affecting elections, including the determination of the
number and location of polling places, and the appointment of
election inspectors and of other election officials. All law
enforcement agencies and instrumentalities of the Government,
when so required by the Commission, shall act as its deputies for
the purpose of insuring free, orderly, and honest election. The
decisions, orders, and rulings of the Commission shall be subject
to review by the Supreme Court.

No pardon, parole. or suspension of sentence for the violation of

any election law may be granted without the favorable
recommendation of the Commission. (emphasis added)
Thus, the administrative control over the conduct of elections
erstwhile exercised by the Secretary of Interior was shifted to the
COMELEC. Under its constitutional mandate, it was tasked with
"the enforcement and administration of all laws relative to the
conduct of elections" and bestowed the power to "decide save
those involving the right to vole, all administrative questions
affecting elections." But since its authority to decide was
circumscribed to administrative questions, the courts retained
their original powers over local election contests.

It was not until the enactment of the 1973 Constitution when the
power of the COMELEC to resolve election controversies was
institutionalized. Through Article XII (C), Section 2 of the 1973
Constitution. the powers of the COMELEC were expanded to the
following:
SEC. 2. The Commission on Elections shall have the following
powers and functions:

(1) Enforce and administer all laws relative to the conduct of

elections.

(2) Be the sole judge of all contests relating to the elections,

returns, and qualifications of all Members of the Batasang
Pambansa and elective provincial and city officials.
(3) Decide, save those involving the right to vote, administrative
questions affecting elections, including the determination of the
number and location of polling places, the appointment of election
officials and inspectors, and the registration of voters.

(4) Deputize, with the consent or at the instance of the President,

law enforcement agencies and instrumentalities of the
Government, including the armed forces of the Philippines, for the
purpose of ensuring free, orderly, and honest elections.

(5) Register and accredit political parties subject to the provisions

of Section eight hereof

(6) Recommend to the Batasang Pambansa effective measures

to minimize election expenses and prohibit all forms of election
frauds and malpractices, political opportunism, guest or nuisance
candidacy, or other similar acts.

(7) Submit to the President, the Prime Minister, and the Batasang
Pambansa a report on the conduct and manner of each election.

(8) Perform such other functions as may be provided by law.

(emphasis added)
As aptly observed in Mendoza v. COMELEC (Mendoza),15 these
powers of the COMELEC have been enhanced in scope and
details under the 1987 Constitution. Article X (C), Section 2 of the
Constitution embodies the myriad of powers bestowed upon the
polling body, viz:
SECTION 2. The Commission on Elections shall exercise the
following powers and functions:

(1) Enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and
recall.
(2) Exercise exclusive original jurisdiction over all contests
relating to the elections, returns, and qualifications of all elective
regional, provincial, and city officials, and appellate jurisdiction
over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, or involving elective barangay
officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election

contests involving elective municipal and barangay offices shall
be final, executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions
affecting elections, including determination of the number and
location of polling places, appointment of election officials and
inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law

enforcement agencies and instrumentalities of the Government,
including the Armed Forces of the Philippines, for the exclusive
purpose of ensuring free, orderly, honest, peaceful, and credible
elections.

(5) Register, after sufficient publication, political parties,

organizations, or coalitions which, in addition to other
requirements, must present their platform or program of
government and accredit citizens' arms of the Commission on
Elections. Religious denominations and sects shall not be
registered. Those which seek to achieve their goals through
violence or unlawful means, or refuse to uphold and adhere to this
Constitution, or which are supported by any foreign government
shall likewise be refused registration.

Financial contributions from foreign governments and their

agencies to political parties, organizations, coalitions, or
candidates related to elections constitute interference in national
affairs, and, when accepted, shall be an additional ground for the
cancellation of their registration with the Commission, in addition
to other penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions

in court for inclusion or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of election laws,
including acts or omissions constituting election frauds, offenses,
and malpractices.

(7) Recommend to the Congress effective measures to minimize

election spending, including limitation of places where
propaganda materials shall be posted, and to prevent and
penalize all forms of election frauds, offenses, malpractices, and
nuisance candidacies.

(8) Recommend to the President the removal of any officer or

employee it has deputized, or the imposition of any other
disciplinary action, for violation or disregard of, or disobedience to
its directive, order, or decision.

(9) Submit to the President and the Congress a com prehensive

report on the conduct of each election, plebiscite, initiative,
referendum, or recall. (emphasis added)
Significantly, the present Constitution clarifies that the COMELEC
retains its character as an administrative agency notwithstanding
its authority to resolve election contests. As held in Mendoza:
As will be seen on close examination, the 1973 Constitution used
the unique wording that the COMELEC shall be the sole judge of
all contests, thus giving the appearance that judicial power had
been conferred. This phraseology, however, was changed in the
1987 Constitution to give the COMELEC exclusive jurisdiction
over all contests, thus removing any vestige of exercising its
adjudicatory power as a court and correctly aligning it with what it
is a quasi-judicial body.16
As enunciated, the COMELEC's adjudicative function over
election contests is quasi-judicial in character since the
COMELEC is a governmental body, other than a court, that is
vested with jurisdiction to decide the specific class of
controversies it Is charged with resolving. In adjudicating the
rights of persons before it, the COMELEC is not just empowered
but is in fact required to investigate facts or ascertain the
existence of facts, hold hearings, weigh evidence, and draw
conclusions from them as basis for their official action and
exercise of discretion in a judicial nature.17 This is simply in
congruence with the concept of due process that all administrative
adjudicatory bodies are enjoined to observe.

The COMELEC is, thus, fully-clothed with authority to make

factual determinations in relation to the election contests before it.
This has been the thrust of the decades worth of constitutional
revisions that transformed the COMELEC from a purely
administrative body, whose scope of decision� making is
limited to those incidental to its duty to enforce election laws, to a
polling commission that also exercises original and exclusive, as
well as appellate, jurisdiction over election contests.

Considering the historical evolution of the COMELEC, the Court

now declares that the polling body has full adjudicatory powers to
resolve election contests outside the jurisdiction of the electoral
tribunals. To rule otherwise would be an act of regression,
contrary to the intent behind the constitutional innovations
creating and further strengthening the Commission. There is no
novelty in this pronouncement, but merely a reinstatement of Our
consistent jurisprudence prior to Poe.

In the landmark case of Aratea v. COMELEC,18 for instance, the

COC of Romeo D. Lonzanida was cancelled and declared void ab
initio because of his misrepresentation as to his eligibility. He
knew fully well that he had been elected, and had served, as
mayor of San Antonio, Zambales for more than three consecutive
terms yet he still certified that he was eligible to run for mayor for
the next succeeding term, thus constituting false material
representation. No prior judgment recognizing Lonzanida's
service for three terms was necessary to effect the cancellation of
his COC.

In Maquiling v. COMELEC,19 Linog G. Balua, through a petitiOn

treated as one for cancellation and/or denial of due course of
COC, contended that Rommel Arnado is not a resident of
Kauswagan, Lanao del Norte and that the latter is a foreigner
based on a certification by the Bureau of Immigration indicating
that Amado is American. The Court did not find issue in the
COMELEC's authority to make a factual determination as to
Amado's citizenship and residence, though We eventually
reversed the COMELEC En Banc's ruling and reinstated that of its
First Division based on Our own appreciation of the evidence on
record.

And in Cerafica v. COMELEC (Cerafica),20 the Court reversed the

COMELEC's mling not because of any alleged lack of authority to
make factual determinations as to the eligibility of a candidate,
but, quite the contrary, because it did not make use of the same
authority.

To reiterate, the COMELEC, as an adjunct to its adjudicatory

power. may investigate facts or ascertain the existence of facts,
hold hearings. weigh evidence, and draw conclusions from them
as basis for their official action. As held in Cerafica:21
The determination of whether a candidate is eligible for the
position he is seeking involves a determination of fact where
parties must be allowed to adduce evidence in support of their
contentions. We thus caution the Comelec against its practice of
impetuous cancellation of COCs via minute resolutions adopting
the recommendations of its Law Department when the situation
properly calls for the case's referral to a Division for summary
hearing.
It may be true that the sole ground for Petitions to Deny Due
Course or to Cancel COC is false material representation
compounded by intent to deceive on the part of the candidate and
that the intent to deceive or mislead will be difficult, if not
impossible, to ascertain absent an established fact that the
candidate deviated from. Contrary to Poe, the Court categorical1y
rules herein that the COMELEC can be the� proper� body to
make the pronouncement against which the truth or falsity of a
material representation in a COC can be measured. But lest it be
misunderstood, these disquisitions will not by any means alter the
outcome of Poe, for even if We dispense the requirement of a
predicate judgment therein and uphold the jurisdiction of the
COMELEC, the Court's conclusion would still find mooring on the
factual findings on Poe's Filipino blood relation and residency.22

A predicate judgment is not required in Petitions for

Disqualification

Moreover, the Commission gravely abused its discretion when it

failed to appreciate the characteristics that distinguish Poe from
the case at bar. It must be stressed that there is a world of
difference between the remedies availed of in Poe and in the
instant case. What is involved herein is a Petition for
Disqualification under Sec. 68 of the OEC, whereas Poe was
initiated by multiple Petitions to Deny Due Course or Cancel COC
under Sec. 78 of the OEC.23

The statutory bases for the two distinct remedies read:

Sec. 68. Disqualifications. - Any candidate who, in an action or
protest in which he is a party is declared by final decision of a
competent court guilty of, or found by the Commission of
having

xxxx

d. solicited, received or made any contribution prohibited

under Sections 89, 95, 96, 97 and 104; or
e. violated any of Sections 80, 83, 85, 86 and 261, paragraphs
d, e, k, v, and cc, subparagraph 6, shall be disqualified from
continuing as a candidate, or if he has been elected, from
holding the office. x x x

xxxx

Sec. 78. Petition to deny due course to or cancel a certificate

of candidacy. - A verified petition seeking to deny due course or
to cancel a certificate of candidacy may be filed by the
person exclusively on the ground that any material
representation contained therein as required under Section
74 hereof is false. The petition may be filed at any time not later
than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not
later than fifteen days before the election. (emphasis added)
The essence of a disqualification proceeding that invokes Sec. 68
of the OEC is to bar an individual from becoming a candidate or
from continuing as a candidate for public office based not on the
candidate's lack of qualification, but on his possession of a
disqualification as declared by a final decision of a competent
court, or as found by the Commission.24 The jurisdiction of the
COMELEC to disqualify candidates is limited to those enumerated
in Section 68 of the OEC. All other election offenses are beyond
the ambit of COMELEC jurisdiction.25

Meanwhile, for a Petition to Deny Due Course or to Cancel COC

under Sec. 78 of the OEC to prosper, the candidate must have
made a material misrepresentation involving his eligibility or
qualification for the office to which he seeks election, such as the
requisite residency, age, citizenship or any other legal
qualification necessary to run for elective office26 enumerated
under Sec. 74 of the OEC.27 Moreover, the false representation
under Sec. 78 must consist of a deliberate attempt to mislead,
misinform, or hide a fact which would otherwise render a
candidate ineligible.28 The relief is granted not because of the
candidate's lack of eligibility per se, but because of his or her
false misrepresentation of possessing the statutory qualifications.

The doctrine in Poe was never meant to apply to Petitions for

Disqualification. A prior court judgment is not required
before the remedy under Sec. 68 of the OEC can prosper.
This is highlighted by the provision itself, which
contemplates of two scenarios: first, there is a final decision
by a competent court that the candidate is guilty of an
election offense and second, it is the Commission itself that
found that the candidate committed any of the enumerated
prohibited acts. Noteworthy is that in the second scenario, it
is not required that there be a prior final judgment; it is
sufficient that the Commission itself made the determination.
The conjunction "or" separating "competent court" and "the
Commission" could only mean that the legislative intent was
for bot/1 bodies to be clothed with authority to ascertain
whether or not there is evidence that the respondent
candidate ought to be disqualified.

Furthermore, the quantum of proof necessary in election cases is,

as in all administrative cases, substantial evidence. This is
defined as such relevant evidence as a reasonable mind will
accept as adequate to support a conclusion.29 To impose prior
conviction of an election offense as a condition sine qua
non before a Petition for Disqualification can be launched would
be tantamount to requiring proof beyond reasonable doubt, which
is significantly beyond what our laws require.

Jurisprudence is rife with teachings on the separability of the

criminal prosecution for election offenses or even t he
determination for probable cause to criminally charge a candidate
for any election violation, from the administrative proceeding for
disqualification. The Court even elucidated on the concept of this
twin aspect in the case of Ejercito v. COMELEC,30 viz:
x x x It has been repeatedly underscored that an election offense
has its criminal and electoral aspects. While its criminal aspect to
determine the guilt or innocence of the accused cannot be the
subject of summary hearing, its electoral aspect to ascertain
whether the offender should be disqualified from office can be
determined in an administrative proceeding that is summary in
character. This Court said in Sunga [v. COMELEC]:

It is worth to note that an election offense has criminal as well as

electoral aspects. Its criminal aspect involves the ascertainment
of the guilt or innocence of the accused candidate. Like in any
other criminal case, it usually entails a full-blown hearing and the
quantum of proof required to secure a conviction is beyond
reasonable doubt. Its electoral aspect, on the other hand, is a
determination of whether the offender should be disqualified from
office. This is done through an administrative proceeding which is
summary in character and requires only a clear preponderance of
evidence. Thus, under Sec. 4 of the COMELEC Rules of
Procedure, petitions for disqualification "shall be heard summarily
after due notice." It is the electoral aspect that we are more
concerned with, under which an erring candidate may be
disqualified even without prior criminal conviction.

and equally in Lanot [v. COMELEC]:

�� �x x x The electoral aspect of a disqualification case

determines whether the offender should be disqualified from
being a candidate or from holding office. Proceedings are
summary in character and require only clear preponderance
of evidence. An erring candidate may be disqualified even
without prior determination of probable cause in a
preliminary investigation. The electoral aspect may proceed
independently of the criminal aspect, and vice-versa.

The criminal aspect of a disqualification case determines whether

there is probable cause to charge a candidate for an election
offense. The prosecutor is the COMELEC, through its Law
Department, which determines whether probable cause exists. If
there is probable cause, the COMELEC, through its Law
Department, files the criminal information before the proper court.
Proceedings before the proper court demand a full-blown hearing
and require proof beyond reasonable doubt to convict. A criminal
conviction shall result in the disqualification of the offender, which
may even include disqualification from holding a future public
office.
The Court's disquisitions in Sunga v. COMELEC31 and Lanot v.
COMELEC32 centered on whether or not the polling body has the
discretion to proceed with disqualification cases even after the
elections had been concluded.

In Sunga, petitioner Manuel C. Sunga was a mayoralty candidate

in the Municipality of Iguig, Cagayan in the May 1995 Elections.
He filed a complaint accusing respondent, then incumbent mayor
Ferdinand B. Trinidad, of using threats, intimidation, terrorism or
other forms of coercion, in violation of the OEC. The COMELEC
denied the complaint, ruling that petitions for disqualification filed
after the conduct of the elections ought to be dismissed. In
reversing the ruling of the tribunal, the Court held that neither the
conclusion of the elections nor Trinidad's proclamation and
assumption of office divested the COMELEC of authority and
jurisdiction to decide the disqualification case.
Meanwhile, in Lanot, therein petitioners led by Henry P. Lanot
filed a Petition for Disqualification against then incumbent Pasig
City Mayor Vicente P. Eusebio for allegedly violating Section
261(a) of the OEC on the prohibition against vote-buying. The
COMELEC First Division granted the petition, prompting Eusebio
to move for reconsideration. At the time of the elections, the
disqualification case was not yet resolved with finality. Thus,
Eusebio's votes were still counted and canvassed, and he was
proclaimed city mayor of Pasig. Thereafter, the COMELEC En
Banc annulled the COMELEC First Division's disqualification
order and referred the case to the COMELEC Law Department for
preliminary investigation.

The Court agreed with Lanot that the COMELEC En Banc gravely
abused its discretion when it ordered the dismissal of the
disqualification case because of Eusebio's proclamation as city
mayor and at the same time allowed the criminal aspect to
proceed with preliminary investigation. Lanot highlighted the
inconsistency by citing the teaching in Sunga that:
A candidate guilty of election offenses would be undeservedly
rewarded, instead of punished, by the dismissal of the
disqualification case against him simply because the investigating
body was unable, for any reason caused upon it, to determine
before the election if the offenses were indeed committed by the
candidate sought to be disqualified. All that the erring aspirant
would need to do is to employ delaying tactics so that the
disqualification case based on the commission of election
offenses would not be decided before the election. This scenario
is productive of more fraud which certainly is not the main intent
and purpose of the law.33
To then avoid the above-illustrated deleterious scenario, the Court
instructed that the COMELEC should continue the trial and
hearing of the disqualification case until judgment is rendered
thereon, and to treat the criminal aspect of the case as a separate
issue altogether.
The distinction between the electoral aspect from the criminal one
was further amplified in Ejercito. There, the Court rebuked therein
petitioner's assertion that the conduct of preliminary investigation
to determine whether the acts enumerated under Section 68 of
the OEC were indeed committed is a requirement prior to actual
disqualification. Resultantly, the Court upheld the COMELEC's
disqualification of petitioner Emilio Ramon Ejercito even though
there has yet to be any finding of probable cause, let alone guilt,
that he spent more than the threshold amount prescribed under
Sections I00-103 of the OEC, an election offense under Section
262 of the same code.

Neither a prior conviction nor even a determination of probable

cause is then a requirement before a Petition for Disqualification
can be lodged. Credit must be given to petitioner for his apt
observation that to rule otherwise would render inutile the remedy
under Section 68 of the OEC insofar as the specific ground raised
herein is concerned. Pertinently, Section 261(v) of the OEC and
Rule 25, Section 3 of the COMELEC Rules of Procedure read:
Section 261. Prohibited Acts. - The following shall be guilty of an
election offense:

xxxx

(v) Prohibition against release, disbursement or expenditure of

public funds. - Any public official or employee including barangay
officials and those of government-owned or controlled
corporations and their subsidiaries, who, during forty-five days
before a regular election and thirty days before a special
election, releases, disburses or expends any public funds x x x
(emphasis added)
Rule 25 - Disqualification of Candidates
xxxx

Section 3. Period to File Petition. - The Petition shall be filed

any day after the last day for filing of certificates of candidacy, but
not later than the date of proclamation. (emphasis added)
Clearly, the particular election offense and ground for
disqualification imputed on respondent must necessarily be
committed within forty-five (45) days before a regular election and
within thirty (30) days before a special election. Meanwhile, the
window for filing a Petition for Disqualification raising the same
ground is between the day after the filing of a certificate of
candidacy until the date of proclamation, which in the advent of
automated elections could only take less than a week for local
posts. Through its ruling, the COMELEC then effectively required
petitioner to secure against Nieto a final judgment of guilt within
the very limited timeframe, an almost impossible feat under the
normal course of legal procedure.

We are, therefore, constrained to rule that the COMELEC erred

when, relying on Poe, it imposed the requirement of a prior court
judgment before resolving the current controversy.

The records are bereft of evidence to hold that respondent

violated Secs. 261(v) and 104 of the Omnibus Election Code

Notwithstanding the COMELEC's error in applying Poe, the

petition must nevertheless fail. Though the COMELEC can
properly take cognizance of the Petition for Disqualification
without issue, petitioner miserably failed to tender evidence that
respondent committed the election offenses imputed.

The quantum of proof necessary in election cases is substantial

evidence, or such relevant evidence as a reasonable mind will
accept as adequate to support a conclusion.34 Corollarily, the rule
is that he who alleges must prove.35 Thus, the burden is on
Francisco to establish through substantial evidence that Nieto
unlawfully disbursed government funds during the election ban, a
burden that Francisco failed to discharge.

There is simply a dearth of evidence to support petitioner's claim

that respondent violated Sec. 261(v) of the OEC. To be sure,
petitioner merely submitted the following to support his
allegations:

1. Pictures of the asphalt-paving along Imelda Avenue of

Cainta Green Park Village, Barangay San Isidro,
Cainta, Rizal;
2. Picture of the Facebook page of the respondent
acknowledging the project as one of the
accomplishments of his administration; and
3. Picture of a tarpaulin banner expressing gratitude for
the asphalt-paving.

The photographs36 petitioner presented depicting the construction

and works done on the asphalting project would only prove the
fact of paving, which is not even contested. They do not, however,
establish that respondent expended public funds or made
financial contributions during the election prohibition.

On the other hand, respondent Nieto sufficiently parried the

alleged commission of the election offenses by proving that the
asphalting project squarely falls under the exception in Sec. 261
(v)(l)(b). The provision states:
v. Prohibition against release, disbursement or expenditure
of public funds. - Any public official or employee
including barangay officials and those of government-
owned or controlled corporations and their subsidiaries,
 who, during forty-five days before a regular
election and thirty days before a special election,
releases, disburses or expends any public funds for:

1. Any and all kinds of public works, except the

following:
xxxx
b. Work undertaken by contract
through public bidding held, or
by negotiated contract
awarded, before the forty-five
day period before
election: Provided, That work for
the purpose of this section
undertaken under the so-called
"takay" or "paquiao" system shall
not be considered as work by
contract; (emphasis added)
The Court is in concurrence with the observations of
Commissioners Luie Tito F. Guia and Ma. Rowena Amelia V.
Guanzon that the evidence on record sufficiently proved that the
expenditure for the road repair is exempted from the prohibition
under Sec. 261(v) of the OEC. Private respondent Nieto was able
to show with competent evidence that the bidding for and the
award of the subject project were regular and done consistent
with existing laws. The charge for illegal contribution under Sec.
104 of the OEC has even less leg to stand on. There was no
contribution to speak of since it was established that the
asphalting work was a government project and not a contribution.

Notably, private respondent adduced the following pieces of

evidence to support his contention:
 1. A copy of the posting of the project in the Philippine
Government� Electronic Procurement System
(PHILGEPS) website.37 This indicates that the Bid
Notice Abstract and Invitation to Bid for the subject
project were posted on the website on February 25,
2016;
2. A certified true copy of the Abstract of Bids38 attested by
the members of the Bids and Awards Committee,
indicating that the bidding for the asphalting project was
held on March 15, 2016;
3. A certified true copy of the Notice of Award39 stating
that, on March 21, 2016, the project was awarded in
favor of the winning bidder, contractor Franzcor Trading
and Construction;
4. A letter40 dated March 21, 2016 filed by respondent
Nieto with the Acting Regional Election Director of
COMELEC in Region IV-A submitting to the
Commission the list of the infrastructure projects bid
out, including the asphalting project, which were
awarded before March 25, 2016, the reckoning date of
the forty-five day prohibition period and
5. A certification41 from the Election Officer of the
COMELEC Region IV-A office acknowledging receipt of
the letter.

To cast doubt on the sufficiency of respondent Nieto's evidence,

petitioner Francisco points out that the followin g were never
offered in evidence: (a) an ordinance enacted by the
Sangguniang Bayan of Cainta authorizing the P6,000,000.00
expenditure for the project, (b) a certification from the proper
accounting official that there is an appropriation by law of such am
ou nt and that the fund is available, and (c) an affidavit from the
editor or publisher of a newspaper of general circulation that the
Invitation to Bid had been published. However, petitioner is not
excused from shifting the burden of proof to private respondent,
especially since the latter has the presumption of regularity in his
favor.42 bolstered by evidence proving that the project was
contracted outside the period of prohibition.

There being substantial evidence to support Nieto's defense that

the construction procurement for t he project was aboveboard,
there is then no reason to disturb public respondent's rulings. No
abuse of discretion, let alone one that is grave, can be attributed
to the COMELEC Second Division in dismissing the Petition for
Disqualification, nor to the COMELEC En Banc in denying
petitioner's motion for reconsideration.

WHEREFORE, premises considered, the instant petition

is DISMISSED for lack of merit. The Court declares that in a
Petition for Disqualification under Section 68 of the Omnibus
Election Code, a prior judgment by a competent court that
the candidate is guilty of an election offense is not required
before the said petition can be entertained or given due
course by the Commission on Elections.
Bañas-Nograles v. Commission on Elections, G.R. No.

246328 10 September 2019

[ G.R. No. 246328, September 10, 2019 ]

VICE MAYOR SHIRLYN L. BAÑAS-NOGRALES, ET AL.,

[*] PETITIONERS, V. COMMISSION ON ELECTIONS,
RESPONDENT.

RESOLUTION

CARANDANG, J.:
This instant Petition for Review1 under Rule 64 of the Rules of
Court assails Commission on Elections' (COMELEC) Resolution
No. 105242 dated April 11, 2019. The assailed Resolution
suspended the May 13, 2019 national and local elections (2019
general elections) for the Representative of the First Legislative
District of South Cotabato, including General Santos City
(1st District).

Factual Antecedents

On March 11, 2019, President Rodrigo Roa Duterte signed into

law Republic Act No. (R.A.) 11243.3 Under R.A. 11243, the
1st District was reapportioned, thereby creating the lone
legislative district of General Santos City. Under Section 1 of the
said law, the creation of the lone legislative district of General
Santos City was "to commence in the next national and local
elections after the effectivity of this Act." Consequently, R.A.
11243 took effect on April 4, 2019 - just over a month before the
2019 general elections.

The same law directed the incumbent Representatives of First

and Second Legislative Districts of South Cotabato to continue
representing their respective districts "until new representatives
shall have been elected and qualified."4 Thereafter, COMELEC
was mandated to issue the necessary rules and regulations to
implement R.A. 11243.5

On April 11, 2019, COMELEC issued the assailed Resolution, the

pertinent portions of which read:

Sec 3. First Regular Elections. - The electoral data for the position
of Member, House of Representatives for the First Legislative
District of South Cotabato, which included General Santos City,
as well as the names of the candidates for the said position, have
already been configured into the automated election system.
As configured, voters of the First Legislative District of the
Province of South Cotabato will vote for one (1) position for
Member, House of Representatives. This configuration is
inconsistent with Section 1 of R.A. 11243 which reapportioned the
First Legislative District of the Province of South Cotabato thereby
creating the Lone Legislative District of General Santos City.

The present configuration can no longer be revised or modified in

time for the May 13, 2019 national and local elections, without
jeopardizing the preparations for the election of other positions,
due to the following operational and logistical constraints, such as
but not limited to:

a) Filing of Certificates of Candidacy for the newly created

legislative districts;

b) Finalization of the list of candidates;

c) Finalization of the ballot face;

d) Printing of ballots.

In view of the above reasons, the Commission:

a) SUSPENDS the election of Representatives for the First

Legislative District, including General Santos City, in the Province
of South Cotabato, scheduled on May 13, 2019. In case the
position for Member, House of Representatives in the First
Legislative District, including General Santos City, is voted upon
in the May 13, 2019 elections, all votes for the said position shall
be considered stray; and

b) SETS the first regular election for the new Representatives of

the First and Third Legislative Districts of the Province of South
Cotabato, within six (6) months from May 13, 2019.
Sec. 4. Incumbent Representative. - The Incumbent
Representatives of the First and Second Legislative Districts of
the Province of South Cotabato shall continue to represent the
legislative districts until noon of June 30, 2019.

x x x x.6 (Emphasis in the original)

Petitioners contest the validity of the assailed Resolution for

violating R.A. 7166.7 Under R.A. 7166, the elections for elective
members of the House of Representatives shall be on the second
Monday of May, every three years.8 While they admitted that
special elections may be held, petitioners claim that none of the
exceptional circumstances are present to warrant the same.9

Petitioners also averred that scheduling the first regular election

"within six (6) months from May 13, 2019"10 violated R.A. 11243.
R.A. 11243 intended the reapportionment to commence in
the next national and local elections after the effectivity of the said
Act, or on the second Monday of May 2022 - not May 13, 2019.
According to petitioners, the legislators were well aware that the
election period for the 2019 general elections have already begun
at the time R.A. 11243 was passed. Furthermore, petitioners
doubted the feasibility of conducting a special election within six
months from May 13, 2019.11

Petitioners also questioned COMELEC's directive to consider

votes for the 1st District as stray votes in the 2019 general
elections. They claim that if the same were implemented, there
would be no representatives for the 1st District from July 1, 2019
until the time elections for such position are held. On the other
hand, to allow the 1st District's incumbent representative to
continue in a holdover capacity "would be extending his term of
office for another three years without being elected by the
people."12
Lastly, petitioners sought for the issuance of a Status Quo
Ante Order in order to "restor[e] the right of the people to vote for
their representative for the 1st District] in [the] upcoming May 13,
2019 Mid-term Elections[.]"13

Without issuing a Status Quo Ante Order, this Court ordered

COMELEC to file its comment on the petition in a
Resolution14 dated May 3, 2019.

The scheduled elections ensued on May 13, 2019. Inevitably,

votes were cast for the representative of the 1st District. Out of
the 284,35115 votes cast, 194,929 votes (68.55%) were for
Shirlyn L. Bañas-Nograles (Bañas-Nograles). However, following
Section 3 of the assailed Resolution, all the votes for the
1st District's representative were considered stray. Thus, Bañas-
Nograles was not proclaimed as the 1st District's representative-
elect.

As a result, Bañas-Nograles filed multiple manifestations on May

24,16 May 27,17 June 6,18 July 17,19 and August 22,
2019.20 praying for: (1) the petition to be granted; (2) her to be
proclaimed the winning candidate for the 1st District; and (3)
a Status Quo Ante Order be issued in the interim.21 Meanwhile,
COMELEC filed its Comment22 on May 24, 2019.

Petitioners likewise brought to this Court's attention the passage

of R.A. 11257, which was approved on April 5, 2019. In R.A.
11257, the Sixth Legislative District of the Province of Cebu was
reapportioned, thereby creating the Lone Legislative District of the
City of Mandaue. While both laws were passed during the election
period, there was a proclamation for the winning candidate of the
Sixth Legislative District of the Province of Cebu. The same
outcome allegedly arose for the Province of Southern Leyte after
the passage of R.A. 11198.23 Thus, petitioners cried foul over the
difference in treatment between the Provinces of Cebu and
Southern Leyte, on one hand, and the Province of South
Cotabato, on the other.24

For its part, COMELEC25 averred that the petition should be

dismissed. It claims to be authorized under Section 2(1),26 Article
IX-C of the 1987 Constitution, Section 527 of Batas Pambansa
Blg. (B.P.) 881, and its overall power of "ensuring free, orderly
and honest elections,"28 to postpone and to set the elections
relating to the legislative districts of the Province of South
Cotabato. Postponement was allegedly warranted because at the
time R.A. 11243 took effect: (1) COMELEC was already finished
with most of the pre-election activities; and (2) it had no time to
revise or modify electoral data in the automated election system
in the remaining 38 days before the 2019 general
elections.29 Given the logistical and financial impediments, it was
thus constrained to reset the elections for the First and Third
Legislative Districts for the Province of South Cotabato to a period
"within six months from May 13, 2019."30

Anent the assailed Resolution's declaration that incumbent

officials shall hold office only until June 30, 2019, COMELEC
reasoned that such was more in compliance with Section
7,31 Article VI of the 1987 Constitution.32

Our Ruling

The petition is meritorious.

In resolving the merits of the instant petition, We refer to Sections

7 and 8, Article VI of the 1987 Constitution, which provide:

Sec. 7. The Members of the House of Representatives shall be

elected for a term of three years which shall begin, unless
otherwise provided by law, at noon on the thirtieth day of June
next following their elections.
No Member of the House of Representatives shall serve for more
than three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an interruption in
the continuity of his service for the full term for which he was
elected.

Sec. 8. Unless otherwise provided by law, the regular election of

the Senators and the Members of the House of Representatives
shall be held on the second Monday of May.LaW㏗
iL (Underscoring ours)

The 1987 Constitution is clear: Elections for Congress should be

held on the 2nd Monday of May unless otherwise provided by law.
The term "unless otherwise provided by law" contemplates two
situations (1) when the law specifically states when the elections
should be held on a date other than the second Monday of May;
and (2) when the law delegates the setting of the date of the
elections to COMELEC.

Section 1 of R.A. 11243 categorically states that the

reapportionment of the 1st District shall "commence in
the next national and local elections after the effectivity of this
Act." R.A. 11243 did not specifically provide for a different date.
Neither did it delegate unto COMELEC the setting of a different
date.

COMELEC insists that R.A. 11243 contemplated the 2019

general elections to be the "next" elections. As a result,
COMELEC's act of adjusting the scheduled election to a date
"within six (6) months from May 13, 2019" was due to "logistic and
financial impossibility x x x analogous to force majeure and
administrative mishaps covered in Section 5 of [the OEC]."33

We need not discuss COMELEC's powers under Section 5 of the

Omnibus Election Code. The issue lies in ascertaining when
Congress intended R.A. No. 11243 to be
implemented.ℒαwρhi ৷ The law was passed with the view of
implementing the reapportionment of the First Legislative District
of the Province of South Cotabato at the most feasible and
practicable time, i.e., during the next elections on the second
Monday of May 2022. Congress could not have intended to
enforce R.A. 11243 during the 2019 general elections as the
election period had already begun when R.A. 11243 was enacted.
To require implementation last May 13, 2019 would lead
COMELEC to act precipitously.

Also, if We were to follow COMELEC's interpretation, an

incongruity would result as the winning candidate in COMELEC's
special elections34 would serve a term less than that provided for
in Section 7, Article VI of the 1987 Constitution. Similar to Section
8, the only exception is when another term is "otherwise provided
by law." Again, R.A. 11243 did not provide for a term less than
three years, as provided in the 1987 Constitution.

The elections for the First Legislative District of the Province of

South Cotabato scheduled on May 13, 2019 should not have
been suspended, and the candidate obtaining the most number of
votes for the said position must be proclaimed. Consequently, the
holdover provision under Section 2 of R.A. 11243 would be
inapplicable since there would already be a newly elected and
qualified Representative.

WHEREFORE, the instant petition is hereby GRANTED.

COMELEC Resolution No. 10524 is hereby
declared NULL and VOID. The elections for the representative of
the First Legislative District of South Cotabato, including General
Santos City is UPHELD. COMELEC is
hereby DIRECTED to CONVENE a Special Provincial Board of
Canvassers to PROCLAIM petitioner Shirlyn L. Bañas-Nograles,
the winning candidate, as Representative of the First Legislative
District of South Cotabato, including General Santos City.
SO ORDERED.