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ELECTION additional cases| 1

G.R. No. 166046 March 23, 2006


MARGARITO C. SULIGUIN, Petitioner, vs.THE COMMISSION ON ELECTIONS,
THE MUNICIPAL BOARD OF CANVASSERS OF NAGCARLAN, LAGUNA, and
ECELSON C. SUMAGUE, Respondents.// CALLEJO, SR., J.:
This is a Petition for Certiorari under Rule 65 of the Revised Rules of Court
seeking to reverse the Resolution
1
of the Commission on Elections (Comelec)
En Banc in SPC No. 04-209 dated November 18, 2004 which denied
petitioner Margarito Suliguins motion for reconsideration of the July 21,
2004 Resolution
2
of the Comelecs First Division. The Comelec nullified his
proclamation as the 8th Sangguniang Bayan member of Nagcarlan, Laguna.
The antecedents are as follows:
Petitioner Margarito Suliguin was one of the candidates for the Sangguniang
Bayan of Nagcarlan, Laguna during the May 10, 2004 elections. At around
6:00 p.m. on said date, respondent Municipal Board of Canvassers (MBOC)
convened to canvass the votes for all the candidates. Petitioner received
6,605 votes while respondent Ecelson Sumague received 6,647 votes.
However, in the Statement of Votes (SOV) covering Precincts 1A to 19A,
Sumague appears to have received only 644 votes when, in fact, he received
844 votes. The MBOC failed to notice the discrepancy and proclaimed the
winning candidates at around 7:00 p.m. of May 13, 2004. Petitioner was
proclaimed as the 8th Sangguniang Bayan member of Nagcarlan, Laguna,
garnering a total of 6,605 votes.
3

Thereafter, Sumague requested for a recomputation of the votes received
by him and Suliguin in a Letter
4
dated May 15, 2004, it appearing that there
was a mistake in adding the figures in the Certificate of Canvass of votes. He
pointed out that he officially garnered 6,647 votes, as against petitioners
6,605 votes.
The MBOC summoned petitioner and respondent Sumague to a conference.
Upon review, the MBOC discovered that it had, indeed, failed to credit
respondent Sumague his 200 votes from Precincts 1A to 19A, and that with
his 6,647 votes, he should have been proclaimed as the 8th Sangguniang
Bayan member of Nagcarlan, Laguna, instead of petitioner Suliguin.
On May 26, 2004, the MBOC filed before the Comelec a "Petition to Correct
Entries Made in the Statement of Votes" for Councilor. The error was
attributed to extreme physical and mental fatigue which the members of the
board experienced during the election and the canvassing of votes.
In the meantime, on June 9, 2004, petitioner took his oath of office before
Judge Renato B. Bercades.
5

On July 21, 2004, the Comelec (First Division) issued a Resolution
6
granting
the petition of the MBOC. The Commission nullified the proclamation of
petitioner Suliguin as the 8th Sangguniang Bayan member of Nagcarlan,
Laguna during the May 10, 2004 National and Local Elections "for being
based on an erroneous computation of votes." It then ordered the MBOC of
Nagcarlan, Laguna to reconvene and effect the necessary corrections in the
SOV, and forthwith proclaim Sumague as the 8th duly elected Sangguniang
Bayan member of Nagcarlan, Laguna.
7

Petitioner moved for the reconsideration of the resolution but the Comelec
En Banc denied the motion on November 18, 2004; hence, this petition.
Petitioner alleges that respondent Commission committed grave abuse of
discretion amounting to lack or excess of jurisdiction in ruling against him. In
support of his petition, he alleges that:
4.1 THE "PETITION TO CORRECT ENTRIES MADE IN THE STATEMENT OF
VOTES FOR COUNCILOR, NAGCARLAN, LAGUNA" WAS UNDISPUTEDLY FILED
OUT OF TIME, and
4.2 "THE PETITION TO CORRECT ENTRIES MADE IN THE STATEMENT OF
VOTES FOR COUNCILOR, NAGCARLAN, LAGUNA" WAS FILED BY THE
MUNICIPAL BOARD OF CANVASSERS IN DEFIANCE OF EXISTING COMELEC
RULES AND REGULATIONS AND WAS OBVIOUSLY BIAS IN FAVOR OF PRIVATE
RESPONDENT CANDICATE ECELSON C. SUMAGUE.
8

Petitioner argues that pursuant to Sections 35,
9
36(c) and (f)
10
of Comelec
Resolution No. 6669 (General Instructions for Municipal/City/Provincial and
District Boards of Canvassers in Connection with the May 10, 2004
Elections), the MBOC should not have entertained the letter-request of
respondent Sumague as it was filed only on May 17, 2004, or four (4) days
after the canvassing of votes was terminated and after he (petitioner) was
proclaimed winner as the 8th Sangguniang Bayan member of Nagcarlan,
Laguna. Furthermore, respondent Sumague never entered any objection
during the proceedings of the canvassing of votes. The MBOC itself filed the
"Petition to Correct Entries Made in the Statement of Votes" before the
Comelec only on May 26, 2004, 13 days after the canvassing of votes was
terminated. Petitioner maintains that the Comelec should have denied the
petition, since according to the Revised Comelec Rules, it should have been
filed not later than five (5) days following the date of the proclamation.
Petitioner likewise questions the personality of the MBOC itself to file the
petition before the Comelec. He further argues that upon the proclamation
of the winning candidates in the election, the MBOC adjourns sine die and
becomes functus officio.
The issue is whether or not respondent Comelec erred in granting the
petition of the MBOC to nullify petitioners proclamation as the 8th member
of the Sangguniang Bayan in Nagcarlan, Laguna.
The petition is bereft of merit.
In an election case, the Comelec is mandated to ascertain by all means
within its command who the real candidate elected by the electorate is. The
Court frowns upon any interpretation of the law or the rules that would
hinder in any way not only the free and intelligent casting of the votes in an
election but also the correct ascertainment of the results.
11
In the case at
bar, the simple mathematical procedure of adding the total number of votes
garnered by respondent Sumague as appearing in the Statement of Votes
submitted to the Comelec would readily reveal the result that he has forty-
two (42) votes more than petitioner. Such result would, in effect, dislodge
petitioner from said post, and entitle respondent Sumague to occupy the
eighth and last seat of the Sangguniang Bayan of Nagcarlan, Laguna.
Petitioner himself never disputed the discrepancy in the total number of
votes garnered by respondent Sumague, and instead questioned the
personality of the MBOC to file the petition and insisted that such petition
was not filed on time.
Sections 3
12
and 4
13
of Rule 1 of the Comelec Rules of Procedure explicitly
provide that such rules may be "liberally construed" in the interest of justice.
Indeed, the Comelec has the discretion to liberally construe its rules and, at
the same time, suspend the rules or any portion thereof in the interest of
justice.
14
Disputes in the outcome of elections involve public interest; as
such, technicalities and procedural barriers should not be allowed to stand if
they constitute an obstacle to the determination of the true will of the
electorate in the choice of their elective officials. Laws governing such
disputes must be liberally construed to the end that the will of the people in
the choice of public officials may not be defeated by mere technical
objections.
15

ELECTION additional cases| 2
What is involved in the present petition is the correction of a manifest error
in reflecting the actual total number of votes for a particular candidate.
Section 32, subparagraph 5 of Comelec Resolution No. 6669 includes
mistake in the addition of the votes of any candidate as a manifest error.
16

As correctly cited by the Comelec,
17
a manifest clerical error is "one that is
visible to the eye or obvious to the understanding and is apparent from the
papers to the eye of the appraiser and collector, and does not include an
error which may, by evidence dehors the record be shown to have been
committed."
The MBOC sought relief from the Comelec to reflect the true winner elected
by the voting public, to occupy the eighth position as member of the
Sangguniang Bayan of Nagcarlan, Laguna. In Carlos v. Angeles,
18
the Court
had the occasion to declare:
In this jurisdiction, an election means "the choice or selection of candidates
to public office by popular vote" through the use of the ballot, and the
elected officials of which are determined through the will of the electorate.
"An election is the embodiment of the popular will, the expression of the
sovereign power of the people." "Specifically, the term election, in the
context of the Constitution, may refer to the conduct of the polls, including
the listing of voters, the holding of the electoral campaign, and the casting
and counting of votes." The winner is the candidate who has obtained a
majority or plurality of valid votes cast in the election. "Sound policy dictates
that public elective offices are filled by those who receive the highest
number of votes cast in the election for that office. For, in all republican
forms of government the basic idea is that no one can be declared elected
and no measure can de declared carried unless he or it receives a majority
or plurality of the legal votes cast in the election."
19

We quote, with approval, the ruling of the Comelec (First Division) granting
the petition of the MBOC:
A careful perusal of the records show that there was, indeed, an honest
error committed by petitioner MBOC in the computation of votes for
candidate Ecelson Sumague which resulted in the erroneous proclamation of
respondent as one of the winners for the said office.
"A manifest clerical error is one that is visible to the eye or obvious to the
understanding and is apparent from the papers to the eye of the appraiser
and collector, and does not include an error which may, by evidence dehors
the record be shown to have been committed."
The contention of respondent that the instant petition should be dismissed
for being filed out of time cannot be given merit because his proclamation
was flawed. It must be stressed that "a proclamation based on faulty
tabulation of votes is flawed, and a petition to correct errors in tabulation
under Section 7, Rule 27 of the COMELEC Rules of Procedure, even if filed
out of time, may be considered, so as not to thwart the proper
determination and resolution of the case on substantial grounds and to
prevent a stamp of validity on a palpably void proclamation based on an
erroneous tabulation of votes."
Furthermore, "where the proclamation is flawed because it was based on a
clerical error or mathematical mistake in the addition of votes and not
through the legitimate will of the electorate, there can be no valid
proclamation to speak of and the same can be challenged even after the
candidate has assumed office."
There is no showing that petitioner MBOC acted with manifest bias and
committed a grave abuse of discretion. "Grave abuse of discretion implies
such capricious and whimsical exercise of judgment as is equivalent to lack
of jurisdiction, or where the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility which must be so patent
and gross as to amount to an invasion of positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of law."
Petitioner MBOC is merely doing its function that is mandated by law to
canvass votes in the election returns submitted to it in due form, adding or
compiling the votes cast for each candidate as shown in the face of such
returns and eventually proclaim the winning candidates. Respondent
miserably failed to prove that petitioner exhibited manifest bias thereby
thwarting his chances of winning the last slot for Sangguniang Bayan
Member. "Absent a strong showing to the contrary, the court must accept
the presumption of regularity in the performance of official duty and strong
evidence is necessary to rebut this presumption."
Likewise, it cannot be said that petitioner MBOC violated the sanctity of the
ballots. Unlike the Board of Election Inspectors which counts the votes from
the precinct levels, the MBOC computes the votes as appeared in the
election returns.
Finally, a subsequent annulment of the proclamation of the respondent
does not constitute a clear violation of his right. In the first place, there is no
valid proclamation to speak of. He was not elected by a majority or plurality
of voters. His alleged right was based on an erroneous proclamation. By any
mathematical formulation, the respondent cannot be construed to have
obtained such plurality of votes; otherwise, it would be sheer absurdity to
proclaim a repudiated candidate as the choice of the voters. "Where a
proclamation is null and void, the proclamation is no proclamation at all and
the proclaimed candidates assumption of office cannot deprive the
COMELEC of the power to make such declaration a nullity." Respondent also
cannot claim that he was denied of his right to due process of law since he
was given the opportunity to be heard. He was duly notified by petitioner
MBOC of the erroneous computation which resulted in his proclamation and
was afforded the opportunity to be heard by this Commission.
"The COMELEC exercises immediate supervision and control over the
members of the Boards of Election Inspectors and Canvassers. Its statutory
power of supervision and control includes the power to revise, reverse or
set aside the action of the boards, as well as to do what boards should have
done, even if questions relative thereto have not been elevated to it by an
aggrieved party, for such power includes the authority to initiate motu
proprio or by itself steps or actions that may be required pursuant to law."
20

Petitioner posits that the Comelecs reliance in the ruling of this Court in
Bince, Jr. v. Commission on Elections
21
is misplaced since, unlike the present
petition, petitioner therein was an affected candidate who filed his petition
on time.
The argument of petitioner does not persuade. The Court, in Bince, Jr. v.
Commission on Elections,
22
declared that:
Assuming for the sake of argument that the petition was filed out of time,
this incident alone will not thwart the proper determination and resolution
of the instant case on substantial grounds. Adherence to a technicality that
would put a stamp of validity on a palpably void proclamation, with the
inevitable result of frustrating the peoples will cannot be countenanced. In
Benito v. COMELEC, we categorically declared that:
x x x Adjudication of cases on substantive merits and not on technicalities
has been consistently observed by this Court. In the case of Juliano vs. Court
of Appeals (20 SCRA 808) cited in Duremdes v. Commission on Elections (178
SCRA 746), this Court had the occasion to declare that:
Well-settled is the doctrine that election contests involve public interest,
and technicalities and procedural barriers should not be allowed to stand if
they constitute an obstacle to the determination of the true will of the
electorate in the choice of their elective officials. And also settled is the rule
that laws governing election contests must be liberally construed to the end
that the will of the people in the choice of public officials may not be
ELECTION additional cases| 3
defeated by mere technical objections (Gardiner v. Romulo, 26 Phil. 521;
Galang v. Miranda, 35 Phil. 269; Jalandoni v. Sarcon, G.R. No. L-6496,
January 27, 1962; Macasunding v. Macalaang, G.R. No. L-22779, March 31,
1965; Cauton v. Commission on Elections, G.R. No. L-25467, April 27, 1967).
In an election case, the court has an imperative duty to ascertain by all
means within its command who is the real candidate elected by the
electorate. (Ibasco v. Ilao, G.R. No. L-17512, December 29, 1960). x x x
(Juliano vs. Court of Appeals, supra, pp. 818-819). (Italics ours)
In the later case of Rodriguez v. Commission on Elections (119 SCRA 465),
this doctrine was reiterated and the Court went on to state that:
Since the early case of Gardiner v. Romulo (26 Phil. 521), this Court has
made it clear that it frowns upon any interpretation of the law or the rules
that would hinder in any way not only the free and intelligent casting of the
votes in an election but also the correct ascertainment of the results. This
bent or disposition continues to the present. (Id., at p. 474).
The same principle still holds true today. Technicalities of the legal rules
enunciated in the election laws should not frustrate the determination of
the popular will.
Undoubtedly therefore, the only issue that remains unresolved is the
allowance of the correction of what are purely mathematical and/or
mechanical errors in the addition of the votes received by both candidates.
It does not involve the opening of ballot boxes; neither does it involve the
examination and/or appreciation of ballots. The correction sought by private
respondent and respondent MBCs of Tayug and San Manuel is correction of
manifest mistakes in mathematical addition. Certainly, this only calls for a
mere clerical act of reflecting the true and correct votes received by the
candidates by the MBCs involved. In this case, the manifest errors sought to
be corrected involve the proper and diligent addition of the votes in the
municipalities of Tayug and San Manuel, Pangasinan.
23

The Court made a similar pronouncement in Tatlonghari v. Commission on
Elections,
24
to wit:
The argument is devoid of merit. For one thing, records indicate that
respondents assumption of office was effected by a clerical error or simple
mathematical mistake in the addition of votes and not through the
legitimate will of the electorate. Thus, respondents proclamation was
flawed right from the very beginning. Having been based on a faulty
tabulation, there can be no valid proclamation to speak of insofar as
respondent Castillo is concerned. As this Court once said:
"x x x Time and again, this Court has given its imprimatur on the principle
that Comelec is with authority to annul any canvass and proclamation which
was illegally made. The fact that a candidate proclaimed has assumed office,
we have said, is no bar to the exercise of such power. It, of course, may not
be availed of where there has been a valid proclamation. Since private
respondents petition before the Comelec is precisely directed at the
annulment of the canvass and proclamation, we perceive that inquiry into
this issue is within the area allocated by the Constitution and law to
Comelec.
x x x
"We have but to reiterate the oft-cited rule that the validity of a
proclamation may be challenged even after the irregularly proclaimed
candidate has assumed office.
x x x
"It is, indeed, true that, after proclamation, the usual remedy of any party
aggrieved in an election is to be found in an election protest. But that is so
only on the assumption that there has been a valid proclamation. Where as
in the case at bar the proclamation itself is illegal, the assumption of office
cannot in any way affect the basic issues." (Aguam v. Commission on
Elections, 23 SCRA 883 [1968]; cited in Agbayani v. Commission on Elections,
186 SCRA 484 [1990]).
25

Thus, the Comelec was correct in annulling the proclamation of petitioner
for being based on an erroneous computation of votes. As the Court
declared in Espidol v. Commission on Elections,
26
where the proclamation is
null and void, the proclaimed candidates assumption of office cannot
deprive the Commission the power to declare such proclamation a nullity.
We emphasized that a defeated candidate cannot be deemed elected to the
office.
27

In fine, the Comelec did not commit grave abuse of discretion in annulling
the proclamation of petitioner. In a special civil action for certiorari, the
burden is on the part of petitioner to prove not merely reversible error, but
grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of the public respondent issuing the impugned order. Grave abuse of
discretion means a capricious and whimsical exercise of judgment as is
equivalent to lack of jurisdiction. Mere abuse of discretion is not enough, it
must be so grave as when the power is exercised in an arbitrary or despotic
manner by reason of passion or personal hostility, and must be so patent
and so gross as to amount to an evasion of a positive duty or to a virtual
refusal to perform the duty enjoined or to act at all in contemplation of
law.
28

To the credit of the MBOC, when it realized that it made a mistake in
computing the total number of votes for respondent Sumague, it took swift
action and called the attention of the Comelec by filing the Petition to
Correct Entries Made in the Statement of Votes for Councilor.
IN LIGHT OF ALL THE FOREGOING, the Resolutions of the Commission on
Elections in SPC No. 04-209 dated July 21, 2004 and November 18, 2004 are
AFFIRMED. The Status Quo Order issued by the Court dated January 11,
2005 is LIFTED. SO ORDERED.
G.R. No. 186224 August 25, 2009
CONSTANCIO D. PACANAN, JR., Petitioner, vs.
COMMISSION ON ELECTIONS and FRANCISCO M. LANGI, SR., Respondents.
/ LEONARDO-DE CASTRO, J.:
Before the Court is a petition for certiorari which seeks to set aside 1) the
Order
1
dated March 17, 2008 of the Commission on Elections (Comelec) First
Division and 2) the Resolution
2
dated January 21, 2009 of the Comelec En
Banc dismissing petitioner Constancio D. Pacanan, Jr.s appeal from the
Decision
3
of the Regional Trial Court (RTC), Branch 27, Catbalogan, Samar, in
Election Case No. 07-1, which declared private respondent Francisco M.
Langi, Sr. as the winning Mayor of Motiong, Samar.
In the Order of March 17, 2008, the Comelec First Division dismissed the
appeal for failure to pay the correct appeal fee as prescribed by the Comelec
Rules of Procedure within the five-day reglementary period.
In the assailed Resolution dated January 21, 2009, the Comelec En Banc
denied petitioners motion for reconsideration, declaring that the Comelec
did not acquire jurisdiction over the appeal because of the non-payment of
the appeal fee on time, and that the Comelec First Division was correct in
dismissing the said appeal.
The antecedent facts are as follows:
Petitioner Constancio D. Pacanan, Jr. and private respondent Francisco M.
Langi, Sr. were candidates for mayor in the municipality of Motiong, Samar
during the May 14, 2007 elections. After the canvassing of votes, the
Municipal Board of Canvassers (MBC) of Motiong, Samar proclaimed
petitioner as the duly elected mayor, having garnered a total of 3,069 votes
against private respondents 3,066 votes.
ELECTION additional cases| 4
Thereafter, private respondent filed with the RTC a Protest
4
dated May 25,
2007 which was docketed as Election Case No. 07-1, contesting the results
of the elections in ten (10) of the forty-nine (49) precincts in Motiong,
Samar, and alleging acts of violence and intimidation and other election
irregularities in the appreciation of the votes by the MBC. Thereafter,
petitioner filed his Verified Answer with Counter-Protest
5
dated June 4,
2007, asserting that private respondents allegations of threat and
intimidation, fraud and other irregularities in the conduct of elections were
mere allegations unsupported by any documentary evidence. Petitioner also
disputed the election results with respect to seven (7) precincts.
On January 7, 2008, the RTC rendered a decision
6
in Election Case 07-1,
which declared private respondent as the winner in the May 14, 2007
mayoralty race for Motiong, Samar with a plurality of six (6) votes, viz:
Wherefore, in view of the foregoing Protestant Francisco M. Langi, Sr.
having obtained the over all total votes of 3,074 and the Protestees 3,068
total and final votes is declared the winner in the Mayoralty contest in
Motiong, Samar with a plurality of (6) votes. Therefore the proclamation on
May 17, 2007 is hereby annulled and declared Francisco Langi, Sr. y Maceren
as the duly elected Mayor of Motiong, Samar. The winner is awarded the
amount of P 32,510 as actual damages and no evidence aliunde for damages
for the court to award. xxx
On January 10, 2008, petitioner filed a notice of appeal and paid P3,000.00
appeal fee per Official Receipt No. 6822663 before the RTC, Branch 27,
Catbalogan, Samar. He also appealed the RTC decision dated January 7, 2008
to the Comelec which docketed the case as EAC No. A-13-2008. Out of the
P3,000.00 appeal fee required by Section 3, Rule 40 of the Comelec Rules of
Procedure, petitioner only paid the amount of P1,000.00 (plus P200.00 to
cover the legal research/bailiff fees) to the Cash Division of the Comelec, per
Official Receipt No. 0510287. The said payment was made on February 14,
2008.
7

On March 17, 2008, the Comelec First Division issued an Order
8
dismissing
the appeal, viz.:
Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of Procedure
which provide for the payment of appeal fee in the amount of P3,000.00
within the period to file the notice of appeal, and Section 9 (a), Rule 22 of
the same Rules which provides that failure to pay the correct appeal fee is a
ground for the dismissal of the appeal, the Commission (First Division)
RESOLVED as it hereby RESOLVES to DISMISS the instant case for Protestee-
Appellants failure to pay the correct appeal fee as prescribed by the
Comelec Rules of Procedure within the five-(5)-day reglementary period.
SO ORDERED.
On March 28, 2008, petitioner filed a Motion for Reconsideration
9
which the
Comelec En Banc denied in the Resolution
10
dated January 21, 2009,
declaring that the appeal was not perfected on time for non-payment of the
complete amount of appeal fee and for late payment as well. The Comelec
En Banc held that the Comelec did not acquire jurisdiction over the appeal
because of the non-payment of the appeal fee on time. Thus, the Comelec
First Division correctly dismissed the appeal.
Hence, the instant petition for certiorari raising the following grounds:
The respondent COMELEC committed grave abuse of discretion amounting
to lack or excess of jurisdiction in holding that the correct appeal fee was not
paid on time.
The respondent COMELEC committed grave abuse of discretion amounting
to lack or excess of jurisdiction in failing to consider that assuming that the
correct appeal fee was not paid on time, the alleged non-payment of the
correct appeal fee is not in anyway attributable to herein petitioner.
The respondent COMELEC committed grave abuse of discretion amounting
to lack or excess of jurisdiction in failing to consider that assuming that the
correct appeal fee was not paid on time, there are highly justifiable and
compelling reasons to resolve the subject case on the merits in the interest
of justice and public interest.
Petitioner further claims that he paid a total of P4,215.00 for his appeal, as
follows:
a. To RTC on January 10, 2008 ------ P3,000.00

10.00
5.00

TOTAL P3,015.00
b. To Comelec on February 14, 2008 -- P1,000.00

50.00
150.00

TOTAL P1,200.00
Petitioner submits that it is incumbent upon the RTC to transmit to the
Comelec the entire P3,000.00 appeal fee that he paid on January 10, 2008.
Petitioner also advances another interpretation of the Comelec Rules that
the RTC is under obligation to remit to the Comelec the P2,000.00
representing the excess amount of the P1,000.00 appeal fee. Thus,
petitioner claims that he must be deemed to have complied, in full or at
least substantially, with the Comelec Rules on the payment of appeal fees.
Petitioner maintains that the alleged non-payment of the correct appeal fee
is not due to his own fault or negligence. He claims that the laws on appeals
in election protest cases are not yet well-established, thus, he must not be
made to suffer for an oversight made in good faith. The Resolution No. 8486
of July 15, 2008 adopted by the Comelec to clarify the rules on compliance
with the required appeal fees in election cases should not be applied
retroactively to the subject election protest.
Lastly, petitioner invokes liberality in the application of the election law. He
asserts that the popular will of the people expressed in the election of public
officers should not be defeated by reason of sheer technicalities. Petitioner
argues that the true will of the people of Motiong in the May 14, 2007
elections should be determined by ordering the Comelec to give due course
to his appeal and to resolve the same on the merits.
In his Comment, respondent Langi, Sr. states that the petition was just a
mere rehash of the Motion for Reconsideration that petitioner filed with the
Comelec En Banc. Respondent maintains that for the Comelec to exercise its
authority to administer proceedings, grant leniency, issue orders, and pass
judgment on issues presented, it must first be shown that it has acquired the
requisite jurisdiction over the subject matter pursuant to the initiatory acts
and procedural compliance set as conditions precedent.
Respondent also argues that the negligence and mistakes of petitioners
counsel bind petitioner. He then reiterates the cases where this Court held
that the non-payment or insufficiency of payment of filing fees is a valid
ground for the dismissal of the appeal and that the subsequent full payment
thereof does not cure the jurisdictional defect.
ELECTION additional cases| 5
We grant the petition.
Section 3, Rule 22 (Appeals from Decisions of Courts in Election Protest
Cases) of the Comelec Rules of Procedure mandates that the notice of
appeal must be filed within five (5) days after promulgation of the decision,
thus:
SEC. 3. Notice of Appeal. Within five (5) days after promulgation of the
decision of the court, the aggrieved party may file with said court a notice of
appeal, and serve a copy thereof upon the attorney of record of the adverse
party.
Moreover, Sections 3 and 4, Rule 40 of the Comelec rules require the
payment of appeal fees in appealed election protest cases, the amended
amount of which was set at P3,200.00 in Comelec Minute Resolution No. 02-
0130,
11
to wit:
SEC. 3. Appeal Fees. The appellant in election cases shall pay an appeal fee
as follows:
(a) For election cases appealed from Regional Trial
Courts.P3,000.00 (per appellant)
(b) For election cases appealed from courts of limited
jurisdiction..P3,000.00 (per appellant)
SEC. 4. Where and When to Pay. The fees prescribed in Sections 1, 2 and 3
hereof shall be paid to, and deposited with, the Cash Division of the
Commission within a period to file the notice of appeal.
Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC
12
also provide the
procedure for instituting an appeal and the required appeal fees to be paid
for the appeal to be given due course, to wit:
SEC. 8. Appeal. An aggrieved party may appeal the decision to the
Commission on Elections, within five days after promulgation, by filing a
notice of appeal with the court that rendered the decision, with copy served
on the adverse counsel or party if not represented by counsel.
SEC. 9. Appeal fee. The appellant in an election contest shall pay to the
court that rendered the decision an appeal fee of One Thousand Pesos
(P1,000.00), simultaneously with the filing of the notice of appeal.
A reading of the foregoing provisions reveals that two different tribunals
(the trial court that rendered the decision and the Comelec) require the
payment of two different appeal fees for the perfection of appeals of
election cases. This requirement in the payment of appeal fees had caused
much confusion, which the Comelec addressed through the issuance of
Comelec Resolution No. 8486.
13
Thus, to provide clarity and to erase any
ambiguity in the implementation of the procedural rules on the payment of
appeal fees for the perfection of appeals of election cases, the resolution
provides:
WHEREAS, the Commission on Elections is vested with appellate jurisdiction
over all contests involving elective municipal officials decided by trial courts
of general jurisdiction, and those involving elective barangay officials,
decided by trial courts of limited jurisdiction;
WHEREAS, Supreme Court Administrative Order No. 07-4-15 (Rules of
Procedure in Election Contests Before the Courts Involving Elective
Municipal and Barangay Officials) promulgated on May 15, 2007 provides in
Sections 8 and 9, Rule 14 thereof the procedure in instituting the appeal and
the required appeal fees to be paid for the appeal to be given due course, to
wit:
Section 8. Appeal. An aggrieved party may appeal the decision to the
Commission on Elections, within five days after promulgation, by filing a
notice of appeal with the court that rendered the decision, with copy served
on the adverse counsel or party if not represented by counsel.
Section 9. Appeal Fee. The appellant in an election contest shall pay to the
court that rendered the decision an appeal fee of One Thousand Pesos
(P1,000.00), simultaneously with the filing of the notice of appeal.
WHEREAS, payment of appeal fees in appealed election protest cases is also
required in Section 3, Rule 40 of the COMELEC Rules of Procedure the
amended amount of which was set at P3,200.00 in COMELEC Minute
Resolution No. 02-0130 made effective on September 18, 2002.
WHEREAS, the requirement of these two appeal fees by two different
jurisdictions had caused confusion in the implementation by the
Commission on Elections of its procedural rules on payment of appeal fees
for the perfection of appeals of cases brought before it from the Courts of
General and Limited Jurisdictions.
WHEREAS, there is a need to clarify the rules on compliance with the
required appeal fees for the proper and judicious exercise of the
Commissions appellate jurisdiction over election protest cases.
WHEREFORE, in view of the foregoing, the Commission hereby RESOLVES to
DIRECT as follows:
1. That if the appellant had already paid the amount of P1,000.00 before the
Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court or lower
courts within the five-day period, pursuant to Section 9, Rule 14 of the Rules
of Procedure in Election Cases Before the Courts Involving Elective Municipal
and Barangay Officials (Supreme Court Administrative Order No. 07-4-15)
and his Appeal was given due course by the Court, said appellant is required
to pay the Comelec appeal fee of P3,200.00 at the Commissions Cash
Division through the Electoral Contests Adjudication Department (ECAD) or
by postal money order payable to the Commission on Elections through
ECAD, within a period of fifteen days (15) from the time of the filing of the
Notice of Appeal with the lower court. If no payment is made within the
prescribed period, the appeal shall be dismissed pursuant to Section 9(a) of
Rule 22 of the COMELEC Rules of Procedure, which provides:
Sec. 9. Grounds for Dismissal of Appeal. The appeal may be dismissed upon
motion of either party or at the instance of the Commission on any of the
following grounds:
(a) Failure of the appellant to pay the correct appeal fee; xxx
2. That if the appellant failed to pay the P1,000.00 appeal fee with the
lower court within the five (5) day period as prescribed by the Supreme
Court New Rules of Procedure but the case was nonetheless elevated to the
Commission, the appeal shall be dismissed outright by the Commission, in
accordance with the aforestated Section 9(a) of Rule 22 of the Comelec
Rules of Procedure.
The Education and Information Department is directed to cause the
publication of this resolution in two (2) newspapers of general circulation.
This resolution shall take effect on the seventh day following its publication.
SO ORDERED.
ELECTION additional cases| 6
Our ruling in the very recent case of Aguilar v. Comelec,
14
quoted hereunder,
squarely applies to the instant case:
Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC provide for the following
procedure in the appeal to the COMELEC of trial court decisions in election
protests involving elective municipal and barangay officials:
SEC. 8. Appeal. An aggrieved party may appeal the decision to the
Commission on Elections, within five days after promulgation, by filing a
notice of appeal with the court that rendered the decision, with copy served
on the adverse counsel or party if not represented by counsel.
SEC. 9. Appeal fee. The appellant in an election contest shall pay to the
court that rendered the decision an appeal fee of One Thousand Pesos
(P1,000.00), simultaneously with the filing of the notice of appeal.
Section 8 was derived from Article IX-C, Section 2(2) of the Constitution and
Rule 40, Section 3, par. 1 and Rule 41, Section 2(a) of the Rules of Court.
Section 9 was taken from Rule 141, Sections 7(1) and 8(f) of the Rules of
Court.
It should be noted from the afore-quoted sections of the Rule that the
appeal fee of P1,000.00 is paid not to the COMELEC but to the trial court
that rendered the decision. Thus, the filing of the notice of appeal and the
payment of the P1,000.00 appeal fee perfect the appeal, consonant with
Sections 10 and 11 of the same Rule. Upon the perfection of the appeal, the
records have to be transmitted to the Electoral Contests Adjudication
Department of the COMELEC within 15 days. The trial court may only
exercise its residual jurisdiction to resolve pending incidents if the records
have not yet been transmitted and before the expiration of the period to
appeal.
With the promulgation of A.M. No. 07-4-15-SC, the previous rule that the
appeal is perfected only upon the full payment of the appeal fee, now
pegged at P3,200.00, to the COMELEC Cash Division within the period to
appeal, as stated in the COMELEC Rules of Procedure, as amended, no
longer applies.
It thus became necessary for the COMELEC to clarify the procedural rules on
the payment of appeal fees. For this purpose, the COMELEC issued on July
15, 2008, Resolution No. 8486, which the Court takes judicial notice of. The
resolution pertinently reads:
x x x x x x x x x
The foregoing resolution is consistent with A.M. No. 07-4-15-SC and the
COMELEC Rules of Procedure, as amended. The appeal to the COMELEC of
the trial courts decision in election contests involving municipal and
barangay officials is perfected upon the filing of the notice of appeal and the
payment of the P1,000.00 appeal fee to the court that rendered the decision
within the five-day reglementary period. The non-payment or the
insufficient payment of the additional appeal fee of P3,200.00 to the
COMELEC Cash Division, in accordance with Rule 40, Section 3 of the
COMELEC Rules of Procedure, as amended, does not affect the perfection of
the appeal and does not result in outright or ipso facto dismissal of the
appeal. Following, Rule 22, Section 9 (a) of the COMELEC Rules, the appeal
may be dismissed. And pursuant to Rule 40, Section 18 of the same rules, if
the fees are not paid, the COMELEC may refuse to take action thereon until
they are paid and may dismiss the action or the proceeding. In such a
situation, the COMELEC is merely given the discretion to dismiss the appeal
or not.
Accordingly, in the instant case, the COMELEC First Division, may dismiss
petitioners appeal, as it in fact did, for petitioners failure to pay the
P3,200.00 appeal fee.
Be that as it may, the Court finds that the COMELEC First Division gravely
abused its discretion in issuing the order dismissing petitioners appeal. The
Court notes that the notice of appeal and the P1,000.00 appeal fee were,
respectively, filed and paid with the MTC of Kapatagan, Lanao del Norte on
April 21, 2008. On that date, the petitioners appeal was deemed perfected.
COMELEC issued Resolution No. 8486 clarifying the rule on the payment of
appeal fees only on July 15, 2008, or almost three months after the appeal
was perfected. Yet, on July 31, 2008, or barely two weeks after the issuance
of Resolution No. 8486, the COMELEC First Division dismissed petitioners
appeal for non-payment to the COMELEC Cash Division of the additional
P3,200.00 appeal fee.1avvphi1
Considering that petitioner filed his appeal months before the clarificatory
resolution on appeal fees, petitioners appeal should not be unjustly
prejudiced by COMELEC Resolution No. 8486. Fairness and prudence dictate
that the COMELEC First Division should have first directed petitioner to pay
the additional appeal fee in accordance with the clarificatory resolution, and
if the latter should refuse to comply, then, and only then, dismiss the
appeal. Instead, the COMELEC First Division hastily dismissed the appeal on
the strength of the recently promulgated clarificatory resolution which had
taken effect only a few days earlier. This unseemly haste is an invitation to
outrage.
The COMELEC First Division should have been more cautious in dismissing
petitioners appeal on the mere technicality of non-payment of the
additional P3,200.00 appeal fee given the public interest involved in election
cases. This is especially true in this case where only one vote separates the
contending parties. The Court stresses once more that election law and rules
are to be interpreted and applied in a liberal manner so as to give effect, not
to frustrate, the will of the electorate.
WHEREFORE, premises considered, the petition for certiorari is GRANTED.
The July 31, September 4 and October 6, 2008 Orders and the October 16
2008 Entry of Judgment issued by the COMELEC First Division in EAC (BRGY)
No. 211-2008 are ANNULLED and SET ASIDE. The case is REMANDED to the
COMELEC First Division for disposition in accordance with this Decision.
SO ORDERED. (Emphasis supplied)
From the foregoing discussion, it is clear that the appeal from the trial court
decision to the Comelec is perfected upon the filing of the notice of appeal
and the payment of the P1,000.00 appeal fee to the trial court that rendered
the decision. With the promulgation of A.M. No. 07-4-15-SC, the perfection
of the appeal no longer depends solely on the full payment of the appeal fee
to the Comelec.
In the instant case, when petitioner filed his Notice of Appeal and paid the
appeal fee of P3,015.00 to the RTC on January 10, 2008, his appeal was
deemed perfected. However, Comelec Resolution No. 8486 also provides
that if the appellant had already paid the amount of P1,000.00 before the
trial court that rendered the decision, and his appeal was given due course
by the court, said appellant is required to pay the Comelec appeal fee of
P3,200.00 to the Comelecs Cash Division through the Electoral Contests
Adjudication Department (ECAD) or by postal money order payable to the
Comelec, within a period of fifteen (15) days from the time of the filing of
the Notice of Appeal with the lower court. However, if no payment is made
within the prescribed period, the appeal shall be dismissed pursuant to
Section 9 (a), Rule 22 of the Comelec Rules of Procedure, which provides:
SEC. 9. Grounds for Dismissal of Appeal. The appeal may be dismissed
upon motion of either party or at the instance of the Commission on any of
the following grounds:
(a) Failure of the appellant to pay the correct appeal fee; xxx
ELECTION additional cases| 7
Thus, when petitioners appeal was perfected on January 10, 2008, within
five (5) days from promulgation, his non-payment or insufficient payment of
the appeal fee to the Comelec Cash Division should not have resulted in the
outright dismissal of his appeal. The Comelec Rules provide in Section 9 (a),
Rule 22, that for failure to pay the correct appeal fee, the appeal may be
dismissed upon motion of either party or at the instance of the Comelec.
Likewise, Section 18, Rule 40
15
thereof also prescribes that if the fees are not
paid, the Comelec may refuse to take action on the appeal until the said fees
are paid and may dismiss the action or the proceeding.
Here, petitioner paid P1,200.00 to the Comelec on February 14, 2008.
Unfortunately, the Comelec First Division dismissed the appeal on March 17,
2008 due to petitioners failure to pay the correct appeal fee within the five-
day reglementary period. In denying petitioners motion for reconsideration,
the Comelec En Banc, in the Resolution dated January 21, 2009, declared
that the Comelec did not acquire jurisdiction over the appeal because of the
non-payment of the appeal fee on time.
However, during the pendency of petitioners Motion for Reconsideration
dated March 27, 2008, the Comelec promulgated Resolution No. 8486 to
clarify the implementation of the Comelec Rules regarding the payment of
filing fees. Thus, applying the mandated liberal construction of election
laws,
16
the Comelec should have initially directed the petitioner to pay the
correct appeal fee with the Comelec Cash Division, and should not have
dismissed outright petitioners appeal. This would have been more in
consonance with the intent of the said resolution which sought to clarify the
rules on compliance with the required appeal fees.
In Barroso v. Ampig, Jr.,
17
we ruled, thus:
xxx An election contest, unlike an ordinary civil action, is clothed with a
public interest. The purpose of an election protest is to ascertain whether
the candidate proclaimed by the board of canvassers is the lawful choice of
the people. What is sought is the correction of the canvass of votes, which
was the basis of proclamation of the winning candidate. An election contest
therefore involves not only the adjudication of private and pecuniary
interests of rival candidates but paramount to their claims is the deep public
concern involved and the need of dispelling the uncertainty over the real
choice of the electorate. And the court has the corresponding duty to
ascertain by all means within its command who is the real candidate elected
by the people.
Moreover, the Comelec Rules of Procedure are subject to a liberal
construction. This liberality is for the purpose of promoting the effective and
efficient implementation of the objectives of ensuring the holding of free,
orderly, honest, peaceful and credible elections and for achieving just,
expeditious and inexpensive determination and disposition of every action
and proceeding brought before the Comelec. Thus we have declared:
It has been frequently decided, and it may be stated as a general rule
recognized by all courts, that statutes providing for election contests are to
be liberally construed to the end that the will of the people in the choice of
public officers may not be defeated by mere technical objections. An
election contest, unlike an ordinary action, is imbued with public interest
since it involves not only the adjudication of the private interests of rival
candidates but also the paramount need of dispelling the uncertainty which
beclouds the real choice of the electorate with respect to who shall
discharge the prerogatives of the office within their gift. Moreover, it is
neither fair nor just to keep in office for an uncertain period one whose right
to it is under suspicion. It is imperative that his claim be immediately cleared
not only for the benefit of the winner but for the sake of public interest,
which can only be achieved by brushing aside technicalities of procedure
which protract and delay the trial of an ordinary action.
WHEREFORE, the petition is granted. The Order dated March 17, 2008 of the
Comelec First Division and the Resolution dated January 21, 2009 of the
Comelec En Banc in EAC No. A-13-2008 are ANNULLED and SET ASIDE.
Accordingly, let the case be REMANDED to the Comelec First Division for
further proceedings, in accordance with the rules and with this disposition.
The Regional Trial Court, Branch 27 of Catbalogan, Samar is DIRECTED to
refund to petitioner Constancio D. Pacanan, Jr., the amount of Two
Thousand Pesos (P2,000.00) as the excess of the appeal fee per Official
Receipt No. 6822663 paid on January 10, 2008. SO ORDERED.
G.R. No. 185140 June 30, 2009
JERRY B. AGUILAR, Petitioner, vs.THE COMMISSION ON ELECTIONS and
ROMULO R. INSOY, Respondents. / NACHURA, J.:
This petition for certiorari under Rules 64 and 65, which stems from
pertinent facts and proceedings narrated below, assails the issuances of the
Commission on Elections (COMELEC) in EAC (BRGY) No. 211-2008.
In the October 2007 barangay elections, petitioner Aguilar won the
chairmanship of Brgy. Bansarvil 1, Kapatagan, Lanao del Norte, over private
respondent Insoy by a margin of one vote. Not conceding his defeat, Insoy
timely instituted a protest docketed as Election Case No. 516 in the
Municipal Trial Court (MTC) of Kapatagan.
1
On April 17, 2008, the MTC
rendered its Decision
2
finding Insoy, who, during the revision garnered 265
votes as against Aguilars 264 votes, as the duly elected punong barangay.
The trial court consequently nullified the proclamation of Aguilar and
directed him to vacate the office.
Aggrieved, Aguilar filed on April 21, 2008 his notice of appeal
3
and paid to
the trial court the appeal fee of P1,000.00
4
in accordance with Rule 14,
Sections 8 and 9 of the recently promulgated A.M. No. 07-4-15-SC or the
Rules of Procedure in Election Contests Before the Courts Involving Elective
Municipal and Barangay Officials.
5

When the COMELEC received the records elevated by the trial court, its First
Division issued on July 31, 2008 the first assailed Order
6
which pertinently
reads:
Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of Procedure
which provide for the payment of appeal fee in the amount of P/3,000.00
within the period to file the notice of appeal, and Section 9(a), Rule 22 of the
same Rules, which provides that failure to pay the correct appeal fee is a
ground for the dismissal of the appeal, the Commission (First Division)
RESOLVED as it hereby RESOLVES to DISMISS the instant appeal for
Protestant-Appellants (sic) failure to pay the appeal fee as prescribed by the
Comelec Rules of Procedure within the five-(5)-day reglementary period.
SO ORDERED.
7

Adversely affected, Aguilar moved for reconsideration, arguing that the
newly promulgated A.M. No. 07-4-15-SC only requires the payment of
P1,000.00 as appeal fee.
8
The COMELEC First Division, however, issued on
September 4, 2008 the second assailed Order
9
stating
Acting on the "Motion for Reconsideration" filed by protestee-appellant
Jerry B. Aguilar, through registered mail on 13 August 2008 and received by
this Commission on 21 August 2008, seeking reconsideration of this
Commissions (First Division) Order dated 31 July 2008, this Commission
(First Division) RESOLVES to DENY the instant motion for movants (sic)
failure to pay the complete P700.00 motion fee.
SO ORDERED.
10

ELECTION additional cases| 8
Unperturbed, Aguilar filed another motion for reconsideration, contending,
among others, that the order was null and void because it was issued in
violation of the rule that motions for reconsideration should be resolved by
the COMELEC en banc. On October 6, 2008, the COMELEC First Division
issued the third assailed Order,
11
which reads in part:
Applying suppletorily Section 2, Rule 52 of the Rules of Court, the second
motion for reconsideration filed by protestee-appellant Jerry Aguilar on 25
September 2008 is hereby DENIED for being a prohibited pleading. And
considering that the Motion for Reconsideration filed by protestee-appellant
was denied per Order dated 4 September 2008 by the Commission (First
Division) for movants failure to pay the complete motion fee, the Order
dated 31 July 2008 is now final and executory.
WHEREFORE, let entry of judgment be issued in the instant case. The Judicial
Records Division-ECAD, this Commission, is hereby directed to remand
within three (3) days from receipt hereof the entire records of this case to
the court of origin for its proper disposition and return to the protestee-
appellant the Postal Money Order representing her motion fee in the
amount of one thousand one hundred pesos (P/1,100.00) pesos.
SO ORDERED.
12

On October 16, 2008, the COMELEC First Division issued the Entry of
Judgment.
13

Faced with imminent ouster from office, petitioner instituted the instant
petition to assail the aforementioned issuances of the COMELEC First
Division.
Readily discernable is that the challenged September 4 and October 6, 2008
Orders
14
were issued not by the COMELEC en banc but by one of its
divisions, the First Division. Settled is the rule that it is the decision, order or
ruling of the COMELEC en banc which, in accordance with Article IX-A,
Section 7
15
of the Constitution, may be brought to this Court on certiorari.
16

But this rule should not apply when a division of the COMELEC arrogates
unto itself, and deprives the en banc of the authority to rule on a motion for
reconsideration, as in this case. Further, the rule is not ironclad; it admits of
exceptions as when the decision or resolution sought to be set aside, even if
it were merely a Division action, is an absolute nullity.
17

The invalidity of the September 4 and October 6, 2008 Orders arises from
the very fact that they were issued by a division of the COMELEC. The
Constitution explicitly establishes, in Article IX-C, Section 3, the procedure
for the resolution of election cases by the COMELEC, thus:
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.
18

The COMELEC Rules of Procedure,
19
complementing the constitutional
provision, also details the course of action to be undertaken in the event
motions for reconsideration are filed; thus, Rule 19, Sections 5 and 6 provide
that
Sec. 5. How Motion for Reconsideration Disposed Of.Upon the filing of a
motion to reconsider a decision, resolution, order or ruling of a Division, the
Clerk of Court concerned shall, within twenty-four (24) hours from the filing
thereof, notify the Presiding Commissioner. The latter shall within two (2)
days thereafter certify the case to the Commission en banc.
Sec. 6. Duty of Clerk of Court of Commission to Calendar Motion for
Reconsideration.The Clerk of Court concerned shall calendar the motion
for reconsideration for the resolution of the Commission en banc within ten
(10) days from the certification thereof.
20

In this case, petitioners motion for reconsideration of the order dismissing
his appeal was not resolved by the COMELEC en banc, but by the COMELEC
First Division, in obvious violation of the provisions of the Constitution and
the COMELEC Rules of Procedure. Stated differently, the division, after
dismissing petitioners appeal, arrogated unto itself the en bancs function
of resolving petitioners motion for reconsideration. In Soriano, Jr. v.
Commission on Elections,
21
we emphasized the rule that a motion to
reconsider a decision, resolution, order or ruling of a COMELEC division,
except with regard to interlocutory orders, shall be elevated to the
COMELEC en banc. Here, there is no doubt that the order dismissing the
appeal is not merely an interlocutory, but a final order.
22
It was, therefore,
incumbent upon the Presiding Commissioner of the COMELEC First Division
to certify the case to the COMELEC en banc within two days from
notification of the filing of the motion.
This rule should apply whether the motion fee has been paid or not, as what
happened in Olanolan v. Commission on Elections.
23
Indeed, Rule 40, Section
18
24
of the COMELEC Rules of Procedure gives discretion to the COMELEC, in
this case, to the en banc and not to the division, either to refuse to take
action until the motion fee is paid, or to dismiss the action or proceeding.
25

The COMELEC First Divisions unceremonious departure from this
constitutionally mandated procedure in the disposition of election cases
must have brought confusion to the parties, so much so, that petitioner filed
a second motion for reconsideration raising this issue. Yet, the COMELEC
First Division, in the further assailed October 6, 2008 Order, committed
another obvious error when it again usurped the en bancs authority to
resolve motions for reconsideration.
Being a violation of the Constitution and the COMELEC Rules of Procedure,
the assailed September 4 and October 6, 2008 Orders are null and void.
They were issued by the COMELEC First Division with grave abuse of
discretion. By grave abuse of discretion is meant such capricious and
whimsical exercise of judgment equivalent to lack of jurisdiction. Mere
abuse of discretion is not enough. It must be grave, as when it is exercised
arbitrarily or despotically by reason of passion or personal hostility. The
abuse must be so patent and so gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined or to act at
all in contemplation of law.
26
Clearly, by arrogating unto itself a power
constitutionally lodged in the Commission en banc, the COMELEC First
Division, in this case, exercised judgment in excess of, or without,
jurisdiction.
However, instead of remanding this case to the COMELEC en banc for
appropriate action on petitioners motion for reconsideration, we will
resolve the propriety of the appeals dismissal, considering the urgent need
for the resolution of election cases, and considering that the issue has, after
all, been raised in this petition.
Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC
27
provide for the following
procedure in the appeal to the COMELEC of trial court decisions in election
protests involving elective municipal and barangay officials:
SEC. 8. Appeal. An aggrieved party may appeal the decision to the
Commission on Elections, within five days after promulgation, by filing a
notice of appeal with the court that rendered the decision, with copy served
on the adverse counsel or party if not represented by counsel.
ELECTION additional cases| 9
SEC. 9. Appeal fee. The appellant in an election contest shall pay to the
court that rendered the decision an appeal fee of One Thousand Pesos
(P1,000.00), simultaneously with the filing of the notice of appeal.
Section 8 was derived from Article IX-C, Section 2(2)
28
of the Constitution
and Rule 40, Section 3, par. 1
29
and Rule 41, Section 2(a)
30
of the Rules of
Court.
31
Section 9 was taken from Rule 141,
32
Sections 7(l)
33
and 8(f)
34
of the
Rules of Court.
35

It should be noted from the afore-quoted sections of the Rule that the
appeal fee of P1,000.00 is paid not to the COMELEC but to the trial court
that rendered the decision. Thus, the filing of the notice of appeal and the
payment of the P1,000.00 appeal fee perfect the appeal, consonant with
Sections 10 and 11 of the same Rule. Upon the perfection of the appeal, the
records have to be transmitted to the Electoral Contests Adjudication
Department of the COMELEC within 15 days. The trial court may only
exercise its residual jurisdiction to resolve pending incidents if the records
have not yet been transmitted and before the expiration of the period to
appeal.
36

With the promulgation of A.M. No. 07-4-15-SC, the previous rule that the
appeal is perfected only upon the full payment of the appeal fee, now
pegged at P3,200.00, to the COMELEC Cash Division within the period to
appeal, as stated in the COMELEC Rules of Procedure, as amended,
37
no
longer applies.
It thus became necessary for the COMELEC to clarify the procedural rules on
the payment of appeal fees. For this purpose, the COMELEC issued on July
15, 2008, Resolution No. 8486,
38
which the Court takes judicial notice
of.1avvphi1 The resolution pertinently reads:
WHEREAS, the Commission on Elections is vested with appellate jurisdiction
over all contests involving elective municipal officials decided by trial courts
of general jurisdiction, and those involving elective barangay officials,
decided by trial courts of limited jurisdiction;
WHEREAS, Supreme Court Administrative Order No. 07-4-15 (Rules of
Procedure in Election Contests Before the Courts Involving Elective
Municipal and Barangay Officials) promulgated on May 15, 2007 provides in
Sections 8 and 9, Rule 14 thereof the procedure for instituting the appeal
and the required appeal fees to be paid for the appeal to be given due
course, to wit:
Section 8. Appeal. - An aggrieved party may appeal the decision to the
Commission on Elections, within five days after promulgation, by filing a
notice of appeal with the court that rendered the decision, with copy served
on the adverse counsel or party if not represented by counsel.
Section 9. Appeal fee. - The appellant in an election contest shall pay to the
court that rendered the decision an appeal fee of One Thousand Pesos
(P1,000.00), simultaneously with the filing of the notice of appeal.
WHEREAS, payment of appeal fees in appealed election protest cases is also
required in Section 3, Rule 40 of the COMELEC Rules of Procedure the
amended amount of which was set at P3,200.00 in COMELEC Minute
Resolution No. 02-0130 made effective on September 18, 2002.
WHEREAS, the requirement of these two appeal fees by two different
jurisdictions had caused confusion in the implementation by the
Commission on Elections of its procedural rules on payment of appeal fees
for the perfection of appeals of cases brought before it from the Courts of
General and Limited Jurisdictions.
WHEREAS, there is a need to clarify the rules on compliance with the
required appeal fees for the proper and judicious exercise of the
Commission's appellate jurisdiction over election protest cases.
WHEREFORE, in view of the foregoing, the Commission hereby RESOLVES to
DIRECT as follows:
1. That if the appellant had already paid the amount of P1,000.00 before the
Regional Trial Court, Metropolitan Trial Court, Municipal Trial Court or lower
courts within the five-day period, pursuant to Section 9, Rule 14 of the Rules
of Procedure in Election Contests Before the Courts Involving Elective
Municipal and Barangay Officials (Supreme Court Administrative Order No.
07-4-15) and his Appeal was given due course by the Court, said appellant is
required to pay the Comelec appeal fee of P3,200.00 at the Commission's
Cash Division through the Electoral Contests Adjudication Department
(ECAD) or by postal money order payable to the Commission on Elections
through ECAD, within a period of fifteen days (15) from the time of the filing
of the Notice of Appeal with the lower court. If no payment is made within
the prescribed period, the appeal shall be dismissed pursuant to Section 9(a)
of Rule 22 of the COMELEC Rules of Procedure, which provides:
Sec. 9. Grounds for Dismissal of Appeal. The appeal may be dismissed upon
motion of either party or at the instance of the Commission on any of the
following grounds:
(a) Failure of the appellant to pay the correct appeal fee; x x x
2. That if the appellant failed to pay the P1,000.00 - appeal fee with the
lower court within the five (5) day period as prescribed by the Supreme
Court New Rules of Procedure but the case was nonetheless elevated to the
Commission, the appeal shall be dismissed outright by the Commission, in
accordance with the aforestated Section 9(a) of Rule 22 of the Comelec
Rules of Procedure.
The Education and Information Department is directed to cause the
publication of this resolution in two (2) newspapers of general circulation.
This resolution shall take effect on the seventh day following its publication.
SO ORDERED.
39

The foregoing resolution is consistent with A.M. No. 07-4-15-SC and the
COMELEC Rules of Procedure, as amended. The appeal to the COMELEC of
the trial courts decision in election contests involving municipal and
barangay officials is perfected upon the filing of the notice of appeal and the
payment of the P1,000.00 appeal fee to the court that rendered the decision
within the five-day reglementary period. The non-payment or the
insufficient payment of the additional appeal fee of P3,200.00 to the
COMELEC Cash Division, in accordance with Rule 40, Section 3 of the
COMELEC Rules of Procedure, as amended, does not affect the perfection of
the appeal and does not result in outright or ipso facto dismissal of the
appeal. Following, Rule 22, Section 9(a) of the COMELEC Rules, the appeal
may be dismissed. And pursuant to Rule 40, Section 18
40
of the same rules, if
the fees are not paid, the COMELEC may refuse to take action thereon until
they are paid and may dismiss the action or the proceeding. In such a
situation, the COMELEC is merely given the discretion to dismiss the appeal
or not.
41

Accordingly, in the instant case, the COMELEC First Division, may dismiss
petitioners appeal, as it in fact did, for petitioners failure to pay the
P3,200.00 appeal fee.
Be that as it may, the Court still finds that the COMELEC First Division gravely
abused its discretion in issuing the order dismissing petitioners appeal. The
Court notes that the notice of appeal and the P1,000.00 appeal fee were,
ELECTION additional cases| 10
respectively, filed and paid with the MTC of Kapatagan, Lanao del Norte on
April 21, 2008. On that date, the petitioners appeal was deemed perfected.
COMELEC issued Resolution No. 8486 clarifying the rule on the payment of
appeal fees only on July 15, 2008, or almost three months after the appeal
was perfected. Yet, on July 31, 2008, or barely two weeks after the issuance
of Resolution No. 8486, the COMELEC First Division dismissed petitioners
appeal for non-payment to the COMELEC Cash Division of the additional
P3,200.00 appeal fee.
Considering that petitioner filed his appeal months before the clarificatory
resolution on appeal fees, petitioners appeal should not be unjustly
prejudiced by COMELEC Resolution No. 8486. Fairness and prudence dictate
that the COMELEC First Division should have first directed petitioner to pay
the additional appeal fee in accordance with the clarificatory resolution, and
if the latter should refuse to comply, then, and only then, dismiss the
appeal. Instead, the COMELEC First Division hastily dismissed the appeal on
the strength of the recently promulgated clarificatory resolutionwhich had
taken effect only a few days earlier. This unseemly haste is an invitation to
outrage.
The COMELEC First Division should have been more cautious in dismissing
petitioners appeal on the mere technicality of non-payment of the
additional P3,200.00 appeal fee given the public interest involved in election
cases. This is especially true in this case where only one vote separates the
contending parties. The Court stresses once more that election law and rules
are to be interpreted and applied in a liberal manner so as to give effect, not
to frustrate, the will of the electorate.
42

WHEREFORE, premises considered, the petition for certiorari is GRANTED.
The July 31, September 4 and October 6, 2008 Orders and the October 16,
2008 Entry of Judgment issued by the COMELEC First Division in EAC (BRGY)
No. 211-2008 are ANNULLED and SET ASIDE. The case is REMANDED to the
COMELEC First Division for disposition in accordance with this Decision. SO
ORDERED.
G.R. No. 184801 July 30, 2009
JONAS TAGUIAM, Petitioner, vs. COMMISSION ON ELECTIONS and
ANTHONY C. TUDDAO, Respondents./ YNARES-SANTIAGO, J.:
This petition for certiorari with prayer for issuance of a temporary
restraining order and writ of preliminary injunction
1
assails the December
20, 2007 Resolution
2
of the Second Division of the Commission on Elections
(COMELEC) in SPC No. 07-171 which granted private respondent Anthony C.
Tuddaos Petition for Correction of Manifest Error and Annulment of
Proclamation of petitioner Jonas Taguiam as the 12th winning candidate for
the Sangguniang Panglungsod of Tuguegarao City, Cagayan. Also assailed is
the October 9, 2008 Resolution
3
of the COMELEC En Banc denying
petitioners Motion for Reconsideration.
4

Petitioner and private respondent were candidates for the position of
Sangguniang Panglungsod of Tuguegarao City in Cagayan during the 2007
National and Local Elections. On May 19, 2007, petitioner was proclaimed by
the City Board of Canvassers (CBOC) as the 12th ranking and winning
candidate for the said position with 10,981 votes.
5
Private respondent
obtained 10,971 votes
6
and was ranked no. 13.
On May 25, 2007, private respondent filed with the COMELEC a petition for
correction of manifest errors in the Election Returns and Statement of Votes
for 27 clustered precincts
7
and for the annulment of the proclamation of the
affected winning candidate in Tuguegarao City. He alleged that he was
credited with less votes in several Statements of Votes by Precincts (SOVP)
as compared with the tally of his votes in the election returns ERs), whereas
petitioner was credited with more votes. Private respondent offered
evidence in the following nine precincts: 0035A/0036A, 0061A/0063A,
69A/69B, 87A/87B, 192A/192B, 264A/265A, 324A/325B, 326A, and 328B.
Petitioner denied the allegations of private respondent and argued that the
petition should be dismissed for having been filed late or six days after the
proclamation of the winning candidates.
8
Meanwhile, the members of the
CBOC of Tuguegarao City denied private respondents allegations of
manifest errors in the SOVP; maintained that petitioner garnered more
votes than those obtained by private respondent; and that they have
properly performed their duties and functions.
9

On December 20, 2007, the Second Division of the COMELEC issued the
assailed Resolution, to wit:
IN VIEW OF THE FOREGOING, the instant Petition filed by Anthony Tuddao
for Correction of Manifest Error and Annulment of Proclamation of Jonas
Taguiam is hereby GRANTED.
ACCORDINGLY, the City Board of Canvassers of Tuguegarao, Cagayan is
hereby DIRECTED to (i) RECONVENE after giving due notice to the concerned
parties, (ii) CORRECT the errors in the Statement of Votes by Precinct
(SOVP), and thereafter proclaim the 12th winning candidate for the
Sangguniang Panlungsod of Tuguegarao, Cagayan.1avvphi1
Let the City Board of Canvassers of Tuguegarao, Cagayan implement this
Resolution with dispatch.
SO ORDERED.
10

The COMELEC held that the belated filing of private respondents petition
cannot deter its authority to ascertain the true will of the electorate and
thereafter affirm such will. Thus, after due proceedings, the COMELEC found
private respondents allegations duly substantiated with material evidence
and confirmed the following:
A. With regard to the votes of private respondent:
Precinct # SOVP No. ER No. Votes in
SOVP
Votes
in ER
Votes
Affected
1 69A/69B 15327 9602679 27 27 0
2 87A/87B 10543 9602699 13 13 0
3 192A/192B 10531 9602801 20 19 -1
4 326A 10532 9602921 43 53 +10
TOTAL +9
B. With regard to the votes of petitioner:
Precinct No. SOVP
No.
ER No. Votes in
SOVP
Votes
in ER
Votes
Affected
1 35A/36A 10543 9602647 40 33 -7
2 61A/63A 10539 9602672 55 50 -5
3 264A/265A 10528 9602871 39 29 -10
4 324A/325A 10533 9602920 62 61 -1
5 328B 10527 9602924 33 32 -1
TOTAL -24


The COMELEC concluded that nine votes should be added to the total
number of votes garnered by private respondent; while 24 votes should be
deducted from the total number of votes obtained by petitioner. Thus, the
total number of votes obtained by private respondent was 10,980, while the
total number of votes received by petitioner was 10,957. As such, private
respondent was rightfully the 12th winning candidate for the Sangguniang
Panglungsod of Tuguegarao City, Cagayan.
ELECTION additional cases| 11
Petitioner filed a motion for reconsideration which was denied by the
COMELEC En Banc on October 9, 2008.
Hence, this Petition for Certiorari
11
raising the issue of whether or not the
COMELEC committed grave abuse of discretion amounting to lack or excess
of jurisdiction when it took cognizance of private respondents petition for
correction of manifest errors in the Election Returns and Statement of Votes
despite its late filing.
Petitioner avers that private respondents petition for correction of manifest
errors should have been dismissed outright for failure to show any
justification for its late filing; that, if the petition had been properly
dismissed, private respondent had other remedies available, such as an
election protest.
Rule 27, Section 5 of the 1993 COMELEC Rules of Procedure expressly states
that:
Pre-proclamation Controversies Which May Be Filed Directly with the
Commission
(a) The following pre-proclamation controversies may be filed directly with
the Commission:
x x x x
2) When the issue involves the correction of manifest errors in the
tabulation or tallying of the results during the canvassing as where (1) a copy
of the election returns or certificate of canvass was tabulated more than
once, (2) two or more copies of the election returns of one precinct, or two
or more copies of certificate of canvass were tabulated separately, (3) there
has been a mistake in the copying of the figures into the statement of votes
or into the certificate of canvass, or (4) so-called returns from non-existent
precincts were included in the canvass, and such errors could not have been
discovered during the canvassing despite the exercise of due diligence and
proclamation of the winning candidates had already been made.
x x x x
If the petition is for correction, it must be filed not later than five (5) days
following the date of proclamation and must implead all candidates who
may be adversely affected thereby.
While the petition was indeed filed beyond the 5-day reglementary period,
the COMELEC however has the discretion to suspend its rules of procedure
or any portion thereof. Sections 3 and 4 of Rule 1 of the COMELEC Rules of
Procedure state, to wit:
Sec. 3. Construction. These rules shall be liberally construed in order to
promote the effective and efficient implementation of the objectives of
ensuring the holding of free, orderly, honest, peaceful and credible elections
and to achieve just, expeditious and inexpensive determination and
disposition of every action and proceeding brought before the Commission.
Sec. 4. Suspension of the Rules. In the interest of justice and in order to
obtain speedy disposition of all matters pending before the Commission,
these rules or any portion thereof may be suspended by the Commission.
Certainly, such rule of suspension is in accordance with the spirit of Section
6, Article IX-A of the Constitution which bestows upon the COMELEC the
power to "promulgate its own rules concerning pleadings and practice
before it or before any of its offices" to attain justice and the noble purpose
of determining the true will of the electorate.
12

In Jaramilla v. Commission on Elections
13
and Dela Llana v. Commission on
Elections,
14
the Court affirmed the COMELECs suspension of its rules of
procedure regarding the late filing of a petition for correction of manifest
error and annulment of proclamation in view of its paramount duty to
determine the real will of the electorate. We have consistently employed
liberal construction of procedural rules in election cases to the end that the
will of the people in the choice of public officers may not be defeated by
mere technical objections.
15

In the instant case, records show that petitioner was declared the 12th
winning candidate based on SOVPs containing mathematical and clerical
errors. The total number of votes in the SOVPs of the identified precincts are
markedly different from the votes tabulated in their respective ERs, i.e.,
petitioner was given additional votes, while private respondents votes were
reduced, which altered the outcome of the election. Petitioner was declared
the last winning candidate for the position of Sangguniang Panglungsod of
Tuguegarao City, instead of private respondent.
In Torres v. Commission on Elections,
16
the Court reiterated that while the
remedy of the losing party is an election protest after his opponent has
already been proclaimed as winning candidate, such recourse is on the
assumption, however, that there has been a valid proclamation. Where a
proclamation is null and void, the proclamation is no proclamation at all and
the proclaimed candidate's assumption of office cannot deprive the
COMELEC of the power to declare such nullity and annul the proclamation.
17

It is significant to note that petitioner did not assail the factual findings of
the COMELEC of manifest error in the tabulation of votes but only raised
issues on the foregoing technicalities. Hence, the COMELECs unrebutted
findings of fact are therefore sustained.
Grave abuse of discretion arises when a lower court or tribunal violates the
Constitution, the law or existing jurisprudence. Grave abuse of discretion
means such capricious and whimsical exercise of judgment as would amount
to lack of jurisdiction; it contemplates a situation where the power is
exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, so patent and gross as to amount to an evasion of positive
duty or a virtual refusal to perform the duty enjoined by, or to act at all in
contemplation of law. In a certiorari proceeding, as in the instant case, it is
imperative for petitioner to show caprice and arbitrariness on the part of
the court or agency whose exercise of discretion is being assailed.
18

For acting pursuant to its Constitutional mandate of determining the true
will of the electorate with substantiated evidence, the Court finds no grave
abuse of discretion on the part of COMELEC in annulling the proclamation of
petitioner. Said proclamation is flawed from the beginning because it did not
reflect the true and legitimate will of the electorate. Having been based on a
faulty tabulation, there can be no valid proclamation to speak of.
19

WHEREFORE, this petition for certiorari is DISMISSED for lack of merit. The
December 20, 2007 Resolution of the Second Division of the Commission on
Elections (COMELEC) and the October 9, 2008 Resolution of the COMELEC En
Banc are hereby AFFIRMED. SO ORDERED.









ELECTION additional cases| 12
G.R. No. 129783 December 22, 1997
MARCELINO C. LIBANAN, petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and JOSE T.
RAMIREZ, respondents.

VITUG, J.:
The 28th May 1997 decision of the House of Representatives Electoral
Tribunal ("HRET"), which affirmed the proclamation of herein private
respondent Jose Tan Ramirez declaring him to be the duly elected
Representative of Eastern Samar for having obtained the plurality of votes
over petitioner Marcelino Libanan, and the 20th June 1997 resolution of the
HRET, which denied with finality petitioner's motion for reconsideration, are
sought to be annulled in this special civil action for certiorari.
Petitioner Marcelino Libanan and private respondent Jose Ramirez were
among the candidates for the lone congressional seat of Eastern Samar in
the May 1995 elections. After the canvass of the returns was made on 13
May 1995, the Provincial Board of Canvassers of Eastern Samar proclaimed
respondent Ramirez to have been duly elected Representative of the District
with a total of forty-one thousand five hundred twenty-three (41,523) votes,
compared to petitioner's forty thousand eight hundred sixty-nine (40,869)
votes, or a margin of six hundred fifty-four(654) votes over those of
petitioner.
Petitioner Libanan seasonably filed an election protest before the HRET
claiming, among other things, that the 08th May 1995 elections in Eastern
Samar were marred by massive electoral irregularities perpetrated or
instigated by respondent Ramirez, as well as his leaders and followers, in the
twenty-three (23) municipalities of the lone district of Eastern Samar with
the aid, in various instances, of peace officers supposedly charged with
maintaining an orderly and honest election. Petitioner contested seventy-
nine (79) precincts in five (5) municipalities. He also maintained that the
election returns and/or ballots in certain precincts were tampered with,
substituted, or systematically marked in favor of respondent Ramirez.
Libanan prayed that, after due proceedings, the HRET should issue an order
to annul the election and proclamation of Ramirez and to thereafter so
proclaim petitioner as the duly elected Representative of the Lone District of
Eastern Samar.
In his answer and counter-protest, with a petition for preliminary hearing on
the special and affirmative defenses, respondent Ramirez denied the
charges. He counter-protested the results of the elections in certain
precincts where, he claimed, Libanan engaged in massive vote
buying, lansadera, terrorism and tearing of the list of voters to
disenfranchise voters therein listed. Accordingly, he prayed, inter alia, for
the dismissal of the protest and the confirmation of his election as the duly
elected representative of the Lone District of Eastern Samar.
After some peripheral issues were settled by the HRET, the revision of
ballots in the protested precincts commenced on 20 February 1996. The
HRET noted that Libanan contested a total of seventy-nine (79) precincts. It
was noted during the revision, however, that six (6) of the contested
precincts, namely, Precincts Nos. 14, 15, 16, 18, 19 and 20 of Arteche, were
found to have been merged during the 08 May 1995 elections into three (3)
precincts, i.e., Precincts Nos. 14 and 19, Precincts Nos. 15 and 16 and
Precincts Nos. 18 and 20. Thus, only seventy-six (76) ballot boxes were
actually opened for revision, one of which, Precinct No. 4-1 of Guiuan, did
not contain any ballot.
On 22 February 1996, while the revision of the counter-protested precincts
was being held, Ramirez filed an "Urgent Motion to Withdraw/Abandon
Counter-Protest in Specific Municipalities/Precincts" praying that he be
granted leave to withdraw and abandon partially his counter-protest in
certain precincts.
1
Libanan filed an opposition thereto but the motion was
eventually granted by the Chairman of the HRET and subsequently
confirmed in a resolution by the tribunal.
On 21 March 1996, the HRET designated a Hearing Commissioner and a
Deputy Hearing Commissioner for the reception of evidence. Following that
reception, the respective memoranda of Libanan and Ramirez were filed.
The evidence and the issues submitted by the parties for consideration by
the HRET related mainly to the proper appreciation of the ballots objected
to, or claimed by, the parties during the revision. No evidence was
presented in support of the other allegations of the protest (like the alleged
tampering of election returns) and of the counter-protest (such as the
alleged tearing of some of the pages of the computerized list of voters to
disenfranchise legitimate voters and the use of goons to terrorize and
compel voters to vote for Libanan), nor were these issues discussed in the
memoranda of the parties. The HRET thus concentrated, such as can be
rightly expected, its attention to the basic appreciation of ballots.
2

The particular matter focused in this petition deals with what petitioner
claims to be spurious ballots; on this score, the HRET has explained:
No spurious ballot was found in this case. For a ballot to be
rejected for being spurious, the ballot must not have any of the
following authenticating marks: a) the COMELEC watermark; b)
the signatures or initial of the BEI Chairman at the back of the
ballot; and c) red and blue fibers. In the present case, all the
ballots examined by the Tribunal had COMELEC watermarks.
The Tribunal did not adopt protestant's submission in his
Memorandum that the absence of thumbmark or BEI Chairman's
signature at the back of the ballot rendered the ballot spurious.
The applicable law on this issue is Sec. 24, R.A. 7166. It reads:
In every case before delivering an official
ballot to the voter, the Chairman of the
Board of Election Inspectors shall, in the
presence of the voter, affix his signature at
the back thereof. Failure to so authenticate
shall be noted in the minutes of the board of
election offense punishable under Section
263 and 264 of the Omnibus Election Code.
As may be gleaned above, unlike the provision of Section 210 of
the Omnibus Election Code where the BEI Chairman was required
to affix his right thumbmark at the back of the ballot immediately
after it was counted, the present law no longer requires the same.
Anent the BEI Chairman's signature, while Section 24 of R.A. 7166
provides that failure to authenticate the ballot shall constitute an
election offense, there is nothing in the said law which provides
that ballots not so authenticated shall be considered invalid. In
fact, the members of the Committee on Suffrage and Electoral
Reforms agreed during their deliberation on the subject that the
absence of the BEI Chairman's signature at the back of the ballot
will not per se make a ballot spurious.
Moreover, while Rep. Palacol, then Chairman of the Committee
on Suffrage and Electoral Reforms, mentioned during his
sponsorship speech that one of the salient features of the bill filed
was "to require the chairman of the Board of Election Inspectors
ELECTION additional cases| 13
to authenticate a ballot given to a voter by affixing his signature
on (sic) the back thereof and to consider any ballot as spurious,"
R.A. 7166, as approved, does not contain any provision to that
effect. Clearly, therefore, the Congress as a whole (House of
Representatives and Senate) failed to adopt the proposal of Rep.
Palacol that ballots without the BEI Chairman's signature at the
back will be declared spurious. What is clearly provided under the
said law is the sanction imposable upon an erring Chairman of the
BEI, and not the disenfranchisement of the voter.
3

In its assailed decision, the HRET ruled in favor of respondent Ramirez; it
concluded:
WHEREFORE, in light of the foregoing, the Tribunal Resolved to
DISMISS the instant election protest, including the parties' mutual
claims for damages and attorney's fee; AFFIRM the proclamation
of Protestee Jose Tan Ramirez; and DECLARE him to be the duly
elected Representative of the Lone District of Eastern Samar, for
having obtained a plurality of 143 votes over second placer
Protestant Marcelino Libanan.
4

Petitioner Libanan moved for a reconsideration of the decision of the HRET
arguing, among other grounds,
5
that the absence of the BEI Chairman's
signature at the back of the ballots could not but indicate that the ballots
were not those issued to the voters during the elections. He averred that the
law would require the Chairman of the BEI to authenticate or sign the ballot
before issuing it to the voter. Acting on the petitioner's motion for
reconsideration, the HRET credited petitioner Libanan with thirty (30) votes
because of the error in the computation of the base figure and rejected
twelve (12) ballots for respondent Ramirez. Respondent Ramirez,
nevertheless, remained to be the winner with a lead of ninety-nine (99)
votes in his favor. As regards the absence of BEI Chairman's signature at the
back of the ballots, the HRET stressed:
Fraud is not presumed. It must be sufficiently established.
Moreover, Section 211 of the Omnibus Election Code provides in
part that "in the reading and appreciation of ballots, every ballot
shall be presumed to be valid unless there is clear and good
reason to justify its rejection." In the instant case, there is no
evidence to support protestant's allegation that the ballots he
enumerated in his Motion for Reconsideration are substitute
ballots. The absence of the BEI Chairman's signature at the back
of the ballot cannot be an indication of ballot switching or
substitution. At best, such absence of BEI Chairman's signature is
a prima facie evidence that the BEI Chairmen concerned were
derelict in their duty of authenticating the ballots. Such omission,
as stated in the Decision, is not fatal to the validity of the ballots.
6

Thus, the present recourse.
A perusal of the grounds raised by petitioner to annul the HRET decision and
resolution boils down to the issue of whether or not the HRET committed
grave abuse of discretion in ruling that the absence of the signature of the
Chairman of the BEI in the ballots did not render the ballots spurious.
Petitioner Libanan contends that the three hundred eleven (311) ballots
(265 of which have been for private respondent Ramirez) without the
signature of the Chairman of the BEI, but which had the COMELEC water-
marks and/or colored fibers, should be invalidated. It is the position of
petitioner that the purpose of the law in requiring the BEI Chairman to affix
his signature at the back of the ballot when he issues it to the voter is "to
authenticate" the ballot and, absent that signature, the ballot must be
considered spurious.
Prefatorily, the Court touches base on its jurisdiction to review and pass
upon decisions or resolutions of the electoral tribunals.
The Constitutions mandates that the House of Representatives Electoral
Tribunal and the Senate Electoral Tribunal shall each, respectively, be
the sole judge of all contests relating to the election, returns and
qualifications of their respective members.
7
In Lazatin vs. HRET ,
8
the Court
has observed that
The use of the word "sole" emphasizes the exclusive character of
the jurisdiction conferred. The exercise of the power by the
Electoral Commission under the 1935 Constitution has been
described as "intended to be as complete and unimpaired as if it
had remained originally in the legislature." Earlier this grant of
power to the legislature was characterized by Justice Malcolm
as "full, clear and complete." Under the amended 1935
Constitution, the power was unqualifiedly reposed upon the
Electoral Tribunal and it remained as full, clear and complete as
that previously granted the Legislature and the Electoral
Commission. The same may be said with regard to the jurisdiction
of the Electoral Tribunals under the 1987 Constitution.
9

The Court has stressed that ". . . so long as the Constitution grants the HRET
the power to be the sole judge of all contests relating to the election,
returns and qualifications of members of the House of Representatives, any
final action taken by the HRET on a matter within its jurisdiction shall, as a
rule, not be reviewed by this Court . . . the power granted to the Electoral
Tribunal . . . excludes the exercise of any authority on the part of this Court
that would in any wise restrict it or curtail it or even affect the same."
The Court did recognize, of course, its power of judicial review in exceptional
cases. In Robles vs. HRET ,
10
the Court has explained that while the
judgments of the Tribunal are beyond judicial interference, the Court may
do so, however, but only, "in the exercise of this Court's so-called
extraordinary jurisdiction, . . . upon a determination that the Tribunal's
decision or resolution was rendered without or in excess of its jurisdiction,
or with grave abuse of discretion or paraphrasing Morrero, upon a clear
showing of such arbitrary and improvident use by the Tribunal of its power
as constitutes a denial of due process of law, or upon a demonstration of a
very clear unmitigated error, manifestly constituting such grave abuse of
discretion that there has to be remedy for such abuse."
In the old, but still relevant, case of Morrero vs. Bocar,
11
the Court has ruled
that the power of the Electoral Commission "is beyond judicial interference
except, in any event, upon a clear showing of such arbitrary and improvident
use of power as will constitute a denial of due process." The Court does not,
to paraphrase it in Co vs. HRET,
12
venture into the perilous area of the
correcting perceived errors of independent branches of the Government; it
comes in only when it has to vindicate a denial of due process or correct an
abuse of discretion so grave or glaring that no less than the Constitution
itself calls for remedial action.
In the instant controversy, it would appear that the HRET "reviewed and
passed upon the validity of all the ballots in the protested and counter-
protested precincts, including those not contested and claimed by the
parties."
13
The Tribunal, added, that "(t)his course of action was adopted
not only to give effect to the intent of each and every voter, but also to
rectify any mistake in appreciation, deliberate or otherwise, committed at
the precinct level and overlooked during the revision stage of this case."
14
In
holding that the absence of the signature of the Chairman of the BEI at the
back of the ballot does not invalidate it, the HRET has ratiocinated in this
wise:
No spurious ballot was found in this case. For a ballot to be
rejected for being spurious, the ballot must not have any of the
following authenticating marks: a) the COMELEC watermark; b)
ELECTION additional cases| 14
the signatures or initial of the BEI Chairman at the back of the
ballot; and c) red and blue fibers. In the present case, all the
ballots examined by the Tribunal had COMELEC watermarks.
xxx xxx xxx
Anent the BEI Chairman's signature, while Section 24 of R.A. 7166
provides that failure to authenticate the ballot shall constitute an
election offense, there is nothing in the said law which provides
that ballots not so authenticated shall be considered invalid. In
fact, the members of the Committee on Suffrage and Electoral
Reforms agreed during their deliberation on the subject that the
absence of the BEI Chairman's signature at the back of the ballot
will not per se make a ballot spurious.
Moreover, while Rep. Palacol, then Chairman of the Committee
on Suffrage and Electoral Reforms, mentioned during his
sponsorship speech that one of the salient features of the bill filed
was "to require the chairman of the Board of Election Inspectors
to authenticate a ballot given to a voter by affixing his signature
on (sic) the back thereof and to consider any ballot as spurious,"
R.A. 7166, as approved, does not contain any provision to that
effect. Clearly, therefore, the Congress as a whole (House of
Representatives and Senate) failed to adopt the proposal of Rep.
Palacol that ballots without the BEI Chairman's signature at the
back will be declared spurious. What is clearly provided under the
said law is the sanction imposable upon an erring Chairman of the
BEI, and not the disenfranchisement of the voter.
15

The pertinent provision of the law, Section 24 of R.A. No. 7166, provides:
Sec. 24. Signature of Chairman at the back of Every Ballot. In
every case before delivering an official ballot to the voter, the
Chairman of the Board of Election Inspector shall, in the presence
of the voter, affix his signature at the back thereof. Failure to
authenticate shall be noted in the minutes of the Board of
Election Inspectors and shall constitute an election offense
punishable under Section 263 and 264 of the Omnibus Election
Code.
There is really nothing in the above law to the effect that a ballot which is
not so authenticated shall thereby be deemed spurious. The law merely
renders the BEI Chairman accountable for such failure. The courts may not,
in the guise of interpretation, enlarge the scope of a statute and embrace
situations neither provided nor intended by the lawmakers. Where the
words and phrases of a statute are not obscure and ambiguous, the meaning
and intention of the legislature should be determined from the language
employed, and where there is no ambiguity in the words, there should be no
room for construction.
16

As so aptly observed by the Solicitor-General, House Bill ("HB") No. 34811
(which later become R.A. No. 7166), approved by the House of
Representatives on third reading, was a consolidation of different bills. Two
of the bills consolidated and considered in drafting H.B. No. 34811 were H.B.
34639 and H.B. No. 34660. Section 22 of the two latter bills provided that:
In every case before delivering an official ballot to the voter, the
chairman of the Board of Election Inspectors shall, in the presence
of the voter, affix his signature at the back thereof. Any ballot
which is not so authenticated shall be deemed spurious. Failure to
so authenticate shall constitute an election offense.
17

During the deliberation of the Committee on Suffrage and Electoral Reforms,
held on 08 August 1991, the members agreed to delete the phrase "Any
ballot which is not so authenticated shall be deemed spurious." Pertinent
portions of the transcript of stenographic notes ("TSN") taken during the
Meeting of the Committee on Suffrage and Electoral Reforms read:
THE CHAIRMAN. Yes, Congressman Mercado.
HON. MERCADO. I, think, Section 22, we go to the intent of the
provision. I think the intent here is to sanction the inspector so I
would propose a compromise. The ballot should not be deemed
as spurious. However, it would rather be failure of the inspector
to, or the chairman to affix his signature would rather be a
circumstance which would aggravate the crime, which would
aggravate the election offense, on the part of the inspector, but
not to disenfranchise the voter. Because the intention here is to
punish the election inspector for not affixing the signature. Why
should we punish the voter? So I think the compromise here. . .
THE CHAIRMAN. A serious election offense.
HON. MERCADO. Yes, it should be a serious election offense on
the part of the chairman for not affixing the signature, but not to
make the ballot spurious.
HON. RONO. Mr. Chairman.
THE CHAIRMAN. Yes, Congressman Rono.
HON. RONO. One thing that we have to guard against is when we
deal with the ballot and the right to suffrage, we should not really
make law that would prevent the flexibility of the Commission on
Elections, and the Supreme Court from getting other extraneous
efforts to confirm authenticity or the spuriousness of the ballot,
by making a provision that by that single mistake or inadvertence
of the chairman we make the ballot automatically spurious is
dangerous. It should be . . . what I'm saying is that the
Commission or the proper bodies by which this matter will be
taken up may consider it as one of the evidences of spuriousness
but notper se or ipso facto it becomes; it should look for other
extraneous evidence. So what I am suggesting is let us give them
this kind of flexibility before we determine or before we say that
this ballot is spurious, we give the COMELEC some flexibility in the
determination of other extraneous evidence.
HON. GARCIA. May I offer a suggestion?
THE CHAIRMAN. Yes, Congressman Garcia.
HON. GARCIA. That the fact that a ballot does
not contain the signature, I think, initial will
not be sufficient, the signature of the
Chairman should be noted in the minutes.
Noted in the minutes. So that in case of
protest, there is basis.
HON. RONO. OO, may basis na. Iyon lang. I
think that would solve our problem.
THE CHAIRMAN. Yes, Mr. Chairman.
MR. MONSOD. Your honor, we're willing to
accept that amendment. Take out that
sentence spurious, with the introduction of
the proposed measure . . .
18

ELECTION additional cases| 15
The TSN of the proceedings of the Bicameral conference Committee on
Election Law, held on 29 October 1991, in turn, would show these
exchanges;
CHAIRMAN GONZALEZ: Are there
anything more?
HON. ROCO. There is a section in
the Senate version about the
ballot being signed at the back.
CHAIRMAN GONZALEZ. Counter
side.
HON. ROCO. If it is not signed then
it is being spurious which is a very
dangerous, I (think) (it) is a very
dangerous provision and so . . .
MR. MONSOD. We agree with the
House version that anyway when
chairman of BEI doesn't sign
subject to an election offense. But
it should not be a basis for
disenfranchisement of the voter.
So, we believe we set this in the
hearings in the House that we
should strike out that sentence
that says that this ballot is
automatically spurious.
19

Thus the final draft, which was later to become R.A. No. 7166, no
longer included the provision "Any ballot not so authenticated
shall be deemed spurious." The intention of the legislature even
then was quite evident.
The reliance on Bautista vs. Castro
20
by petitioner, is misdirected.
It must be stressed that B.P. Blg. 222,
21
otherwise known as the
"Barangay Election Act of 1982," approved on 25 March 1982,
itself categorically expresses that it shall only be "applicable to the
election of barangay officials." Section 14 of B.P. Blg. 222 and its
implementing rule in Section 36 of COMELEC Resolution No. 1539
have both provided:
Section 14 of B.P. 222:
Sec. 14. Official barangay ballots. The official
barangay ballots shall be provided by the city or
municipality concerned of a size and color to be
prescribed by the Commission on Elections.
Such official ballot shall, before it is handed to the voter
at the voting center, be authenticated in the presence
of the voter, the other Tellers, and the watchers
present by the Chairman of the Board of Election
Tellers who shall affix his signature at the back thereof.
Section 36 of COMELEC Resolution No. 1539:
Sec. 36. Procedure in the casting of votes. . . .
b. Delivery of ballot. Before delivering the ballot to
the voter, the chairman shall, in the presence of the
voter, the other members of the board and the
watchers present, affix his signature at the back thereof
and write the serial number of the ballot in the space
provided in the ballot, beginning with No. "1" for the
first ballot issued, and so on consecutively for the
succeeding ballots, which serial number shall be
entered in the corresponding space of the voting
record. He shall the fold the ballot once, and without
removing the detachable coupon, deliver it to the
voter, together with a ball pen.
xxx xxx xxx
e. Returning the ballot. (1) In the presence of all the
members of the Board, the voter shall affix his right
hand thumbmark on the corresponding space in the
detachable coupon, and shall give the folded ballot to
the chairman. (2) The chairman shall without unfolding
the ballot or looking at its contents, and in the presence
of the voter and all the members of the Board, verify if
it bears his signature and the same serial number
recorded in the voting record. (3) If the ballot is found
to be authentic, the voter shall then be required to
imprint his right hand thumbmark on the proper space
in the voting record. (4) The chairman shall then detach
the coupon and shall deposit the folded ballot in the
compartment for valid ballot and the coupon in the
compartment for spoiled ballots. (5) The voter shall
then leave the voting center.
f. When ballot may be considered spoiled. Any ballot
returned to the chairman with its coupon already
detached, or which does not bear the signature of the
chairman, or any ballot with a serial number that does
not tally with the serial number of the ballot delivered
to the voter as recorded in the voting record, shall be
considered as spoiled and shall be marked and signed
by the members of the board and shall not be
counted.
22

The difference in the rules may not be too difficult to discern. The
stringent requirements in B.P. Blg. 222 should be justifiable
considering that the official barangay ballots would be provided
by the city or municipality concerned with the COMELEC merely
prescribing their size and color. Thus, the official ballots in B.P.
Blg. 222, being supplied and furnished by the local government
themselves, the possibility of the ballots being easily
counterfeited might not have been discounted. The absence of
authenticating marks prescribed by law, i.e., the signature of the
chairman of the Board of Election Tellers at the back of the ballot,
could have well been really thought of to be fatal to the validity of
the ballot.
Section 24 of R.A. No. 7166, upon the other hand, contains no
similar stringent provisions such as that seen in Section 36(f) of
COMELEC Resolution No. 1539. The pertinent part in Resolution
No. 2676 on the requirement of the signature of the chairman is
found in Section 73 thereof which merely provides:
Sec. 73. Signature of chairman at the back of every
ballot. In every case, the chairman of the board shall,
in the presence of the voter, authenticate every ballot
by affixing his signature at the back thereof before
delivering it to the voter. FAILURE TO SO
AUTHENTICATE SHALL BE NOTED IN THE MINUTES OF
ELECTION additional cases| 16
THE BOARD AND SHALL CONSTITUTE AN ELECTION
OFFENSE.
Again, in Resolution No. 2738,
23
promulgated by the COMELEC on
03 January 1995,
24
which implemented, among other election
laws, R.A. No. 7166 (that governed the election for Members of
the House of Representatives held on 08 May 1995), the relevant
provision is in Section 13 which itself has only stated:
Sec. 13. Authentication of the ballot. Before
delivering a ballot to the voter, the chairman of the
board shall, in the presence of the voter, affix his
signature at the back thereof.
It would appear evident that the ruling in Bautista vs. Castro was
prompted because of the express declaration in Section 36(f) of
COMELEC Resolution No. 1539, implementing Section 14 of B.P.
Blg. 222, that: "Any ballot returned to the chairman . . . which
does not bear the signature of the chairman . . . shall be
considered as spoiled . . . and shall not be counted." This Court
thus stated in Bautista:
The law (Sec 14 of B.P. Blg. 222,) and the rules
implementing it (Sec. 36 of Comelec Res. No. 1539)
leave no room for interpretation. The absence of the
signature of the Chairman of the Board of Election
Tellers in the ballot given to a voter as a required by
law and the rules as proof of the authenticity of said
ballot is fatal. This requirement is mandatory for the
validity of the said ballot.
It should be noteworthy that in an unsigned 03rd April 1990
resolution, in "Jolly Fernandez vs. COMELEC,"
25
the Court en
banc had the opportunity to debunk the argument that all ballots
not signed at the back thereof by the Chairman and the Poll Clerk
were to be considered spurious for non-compliance with Section
15 of R.A. No. 6646,
26
i.e., "The Electoral Reforms Law of 1987,"
reading as follows:
Sec. 15. Signature of Chairman and Poll Clerk at the
Back of Every Ballot. In addition to the preliminary
acts before the voting as enumerated in Section 191 of
Batas Pambansa Blg. 881, the chairman and the poll
clerk of the board of election inspector shall affix their
signatures at the back of each and every official ballot
to be used during the voting. A certification to that
effect must be entered in the minutes of the voting.
The Court declared:
The cardinal objective in the appreciation of the ballots
is to discover and give effect to the intention of the
voter. That intention would be nullified by the strict
interpretation of the said section as suggested by the
petitioner for it would result in the invalidation of the
ballot even if duly accomplished by the voter, and
simply because of an omission not imputable to him
but to the election officials. The citizen cannot be
deprived of his constitutional right of suffrage on the
specious ground that other persons were negligent in
performing their own duty, which in the case at bar was
purely ministerial and technical, by no means
mandatory but a mere antecedent measure intended
to authenticate the ballot. A contrary ruling would
place a premium on official ineptness
and make it possible for a small group of functionaries,
by their negligence or, worse, their deliberate
inaction to frustrate the will of the electorate.
27

Petitioner Libanan suggests that the Court might apply the
"ruling" of respondent HRET in the case of Yap vs. Calalay (HRET
Case No. 95-026). He states that "it is the HRET itself, ironically,
that deals the coup de grace to its ruling HRET Case No. 95-020."
The "ruling" cited by petitioner is actually a "Confidential
Memorandum,"
28
dated 28 April 1997, from a certain Atty.
Emmanuel Mapili addressed to "PA Committees in HRET Case No.
95-026 (Yap vs. Calalay)" which has for its subject "(n)ew rulings
to be followed in the appreciation of ballots in HRET Case No. 95-
026 (Yap vs. Calalay) and other concerns." Petitioner Libanan
quotes the pertinent portion of the said Memorandum, viz:
WHEREFORE, the Tribunal Resolved that the following
rules and guidelines on the appreciation of ballots shall
be given effect in the resolution of this case and shall
be applied prospectively to other pending cases:
1. The absence of the signature of
the BEI Chairman at the back of
the ballot shall nullify the same
and all the votes therein shall not
be counted in favor of any
candidate.
29

Reliance by petitioner on this alleged "ruling", obviously deserves
scant consideration. What should, instead, be given weight is the
consistent rule laid down by the HRET that a ballot is considered
valid and genuine for as long as it bears any one of these
authenticating marks, to wit: (a) the COMELEC watermark, or (b)
the signature or initials, or thumbprint of the Chairman of the BEI;
and, (c) in those cases where the COMELEC watermarks are
blurred or not readily apparent to the naked eye, the presence of
red and blue fibers in the ballots.
30
It is only when none of these
marks appears extant that the ballot can be considered spurious
and subject to rejection.
It is quite clear, in the opinion of the Court, that no grave abuse of
discretion has been committed by respondent House of
Representatives Electoral Tribunal in its issuance of the assailed
decision and resolution.
On other important point. Regarding the membership of certain
Justices of this Court in the HRET and their participation in the
resolution of the instant petition, the Court sees no conflict at all,
and it, therefore, rejects the offer of inhibition by each of the
concerned justices. As early as Vera vs. Avelino,
31
this Court,
confronted with a like situation, has said unequivocally:
. . . Mulling over this, we experience no qualmish
feelings about coincidence. Their designation to the
electoral tribunals deducted not a whit from their
functions as members of this Supreme Court, and did
not disqualify them in this litigation. Nor will their
deliverances hereat on a given question operate to
prevent them from voting in the electoral forum on
identical questions; because the Constitution,
establishing no incompatibility between the two roles,
naturally did not contemplate, nor want, justices
opining one way here, and thereafter holding
otherwise, pari materia, in the electoral tribunal, or
vice-versa.
32

ELECTION additional cases| 17
Such has thus been, and so it is to be in this petition, as well as in
the cases that may yet come before the Court.
WHEREFORE, the instant petition is DISMISSED.
IT IS SO ORDERED.
Narvasa C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Kapunan,
Mendoza, Francisco, Panganiban and Martinez, JJ., concur.


G.R. No. 113107 July 20, 1994
WILMAR P. LUCERO, petitioner,
vs.
COMMISSION ON ELECTIONS and JOSE L. ONG, JR., respondents.

G.R. No. 113509 July 20, 1994
JOSE L. ONG, JR., petitioner,
vs.
COMMISSION ON ELECTIONS and WILMAR P. LUCERO, respondents.
Cesar A. Sevilla & Associates for Wilmar Lucero.
Napolean G. Rama and Remollo Melocoton & Associates for Jose L. Ong, Jr.

DAVIDE, JR., J.:
After the issues had been joined in these consolidated cases, the Court
resolved to give due course to the petitions therein and to decide the cases
on the merits. It can no longer allow the parties to delay these cases. Their
legal skirmishes, which have unduly magnified uncomplicated issues, have
effectively deprived the people of the Second Legislative District of Northern
Samar of representation in the House of Representatives for more than two
years now.
These cases are sequels to G. R. No. 105717, entitled "Jose L. Ong, Jr. vs.
Commission on Elections and Wilmar P. Lucero," which we finally resolved
on 22 April 1993.
1
The petitioners were two of the five candidates
2
for the
Second Legislative District of Northern Samar in the synchronized national
and local elections held on 11 May 1992.
The canvass of the Provincial Board of Canvassers (PBC) of Northern Samar
credited Jose L. Ong, Jr. with 24,272 votes and Wilmar P. Lucero with 24,068
votes, or a lead by Ong of 204 votes. However, this tally did not include the
results of Precinct No. 7 of the municipality of Silvino Lobos, where the
submitted election returns had not been canvassed because they were
illegible; of Precinct No. 13 of Silvino Lobos, where the ballot boxes were
snatched and no election was held; and of Precinct No. 16, also of Silvino
Lobos, where all copies of the election returns were missing.
On 22 May 1992, Lucero asked the Commission on Elections (COMELEC), in
SPA No. 92-282, to:
1. Forthwith order Respondent Provincial Board of
Canvassers for Northern Samar to suspend the
proclamation of Private Respondent Jose L. Ong, Jr.;
2. Direct Respondent Provincial Board of Canvassers for
Northern Samar to correct the Certificate of Canvass
(CEF 20) for Las Navas and, accordingly, to correct the
total votes so far counted by it for Petitioner from
24,068 to 24,088, thus reducing the margin it found in
favor of Private Respondent Jose L. Ong, Jr. from 204 to
184 votes only;
3. Order a special election in Precinct 13, Barangay
Gusaran, Silvino Lobos, pursuant to Section 6 of the
Omnibus Election Code;
4. Order a recount of the votes for Representative of
the Second District of Northern Samar in Precinct 16,
Barangay Tubgon, and Precinct 7, Barangay Camayaan,
both of Silvino Lobos, pursuant to Section 234 of the
Omnibus Election Code;
5. Order a recount of the votes for Representative in
the 52 precincts herein above enumerated in order to
correct "manifest errors" pursuant to Section 15 of
Republic Act 7166 and for this purpose order the
impounding and safekeeping of the ballot boxes of all
said precincts in order to preserve the integrity of the
ballots and other election paraphernalia contained
therein.
3

On 2 June 1992, the COMELEC, acting on Lucero's urgent manifestation,
directed the PBC to desist from reconvening until further orders.
On 8 June 1992, Ong moved to lift the suspension of the proceedings by the
PBC, which Lucero opposed on 10 June 1992 on the ground that the canvass
could not be completed even if the PBC were to reconvene because no
election was held in Precinct No. 13 (Barangay Gusaran) of Silvino Lobos and
there was no canvassing of the votes in Precinct No. 7 (Barangay Camayaan)
and Precinct No. 16 (Barangay Tubgon) both of Silvino Lobos.
On 13 June 1993, the COMELEC en banc promulgated a resolution, the
dispositive portion of which reads:
Accordingly, the Commission hereby orders
the Provincial Election Supervisor of
Northern Samar to bring to the Commission
within three (3) days from receipt hereof the
ballot boxes from Precinct 7 and 16 of Silvino
Lobos, to be escorted by representatives
from the petitioner and the respondents as
well as other parties who have an interest to
protect, and to notify said parties hereof. The
Municipal Treasurer of said town is directed
to turn over custody of said ballot boxes to
the Provincial Election Supervisor, and the
keys thereof shall likewise be turned over by
the appropriate officials in custody thereof to
the PES, who shall in turn give one key for
each ballot box to the duly authorized
representatives of the petitioner and the
respondent.
The Commission likewise orders the Election
Registrar of Silvino Lobos, Northern Samar,
ELECTION additional cases| 18
and the Chairman and members of the
Boards of Election Inspectors of Precincts 7
and 16 of said municipality to appear before
the Commission within three (3) days from
receipt hereof.
Below the signatures of the Chairman and the six Commissioners, however,
Chairman Christian S. Monsod and Commissioners Haydee B. Yorac, Dario C.
Rama and Regalado E. Maambong directed as follows:
We vote in favor of this resolution except
that portion which denied the correction of
the Certificate of Canvass for Las Navas.
Correction of the Certificate of Canvass for
Las Navas is in order in view of the testimony
of the election registrar of Las Navas to the
effect that Wilmar Lucero garnered 2,537
votes for Las Navas and not 2,517. Petition
for correction was duly filed by Lucero with
the Provincial Board of Canvassers of
Northern Samar on May 19, 1992. The
Provincial Board of Canvassers of Northern
Samar is therefore directed to retabulate the
total number of votes for Las Navas for
Lucero and enter the same in the Provincial
Certificate of Canvass.
4

On 15 June 1992, Lucero filed an urgent motion to constitute a Special Board
of Election Inspectors (SBEI) to count the votes of Precincts Nos. 7 and 16 of
Silvino Lobos.
5

On 20 June 1992, Ong, in a special civil action for certiorari filed with this
Court and subsequently docketed as G. R. No. 105717, questioned the order
for the recount of ballots in Precincts No. 7 and 16. Despite the pendency of
this petition, the COMELEC ordered the recount of the ballots in Precinct No.
16 by a SBEI which recorded 43 votes for Lucero and 2 votes for Ong.
6

On 25 June 1992, this Court issued in G. R. No. 105717 a temporary
restraining order against the implementation by the COMELEC of its Order
of 2 June 1992 and its Resolution of 13 June 1992.
On 23 December 1992, this Court promulgated its decision in G. R. No.
105717,
7
the dispositive portion of which reads:
WHEREFORE, the petition
for certiorari is GRANTED and a
writ of preliminary injunction is
hereby ISSUED directing the
COMELEC to CEASE and DESIST
from implementing its order of
June 2, 1992, and its resolution
dated June 13, 1992, and the same
are hereby declared NULLIFIED.
Consequently, the election returns
based on the recounted ballots
from Precinct 16 are hereby
DISCARDED and in lieu thereof,
authentic returns from said
precinct should instead be made a
basis for the canvassing. The
Provincial Board of Canvassers of
Northern Samar is hereby directed
to PROCEED WITH DISPATCH in the
canvassing of ballots until
completed and to PROCLAIM the
duly elected winner of the
congressional seat for the Second
District of Northern Samar.
This decision is immediately
executory.
8

Acting on the motions for reconsideration and clarification respectively filed
by the COMELEC and Lucero, this Court, on 22 April 1993, modified
9
its
aforesaid disposition in G. R. No. 105717 as follows;
IN VIEW OF ALL THE FOREGOING, the dispositive
portion of the December 23, 1992 Decision is hereby
MODIFIED to read as follows;
"WHEREFORE, THE PETITION IS
GRANTED. THE JUNE 2, 1992
ORDER OF RESPONDENT
COMMISSION ON ELECTIONS IN
SPA NO. 92-282 IS HEREBY
ANNULLED AND SET ASIDE. ITS
JUNE 13, 1992 RESOLUTION
THEREIN IS LIKEWISE ANNULLED
AND SET ASIDE INSOFAR AS IT
AFFECTS PRECINCT NO. 7 OF
SILVINO LOBOS, THE RECOUNT OF
VOTES IN THE 52 OTHER
PRECINCTS AND THE CORRECTION
OF THE CERTIFICATE OF CANVASS
OF LAS NAVAS, BUT IS AFFIRMED
WITH RESPECT TO THE ISSUE OF
HOLDING A SPECIAL ELECTION IN
PRECINCT NO. 13 AND THE
RECOUNT OF THE BALLOTS IN
PRECINCT
NO. 16.
THE RESPONDENT COMMISSION
ON ELECTIONS IS HEREBY
DIRECTED TO ASSIGN SPA NO. 92-
282 TO ANY OF ITS DIVISIONS
PURSUANT TO ITS RULE ON
RAFFLE OF CASES FOR IT TO
RESOLVE THE PRE-PROCLAMATION
ISSUES THEREIN, TAKING INTO
ACCOUNT THE ABOVE
PRONOUNCEMENTS AND THE
EXCEPTIONS PROVIDED FOR IN
SECTION 15 OF R. A. NO. 7166.
WHENEVER WARRANTED BY THE
CIRCUMSTANCES, THE
COMMISSION MAY (A) CALL A
SPECIAL ELECTION IN PRECINCT
NO. 13 OF SILVINO LOBOS,
NORTHERN SAMAR, AND (B)
RECONVENE THE SPECIAL
MUNICIPAL BOARD OF
CANVASSERS AND THE SPECIAL
PROVINCIAL BOARD OF
CANVASSERS IT HAD EARLIER
CONSTITUTED OR CREATE NEW
ONES.
ALL THE FOREGOING SHOULD BE
DONE WITH PURPOSEFUL
DISPATCH TO THE END THAT THE
ELECTION additional cases| 19
WINNING CANDIDATE FOR
CONGRESSMAN REPRESENTING
THE SECOND CONGRESSIONAL
DISTRICT OF NORTHERN SAMAR
MAY BE PROCLAIMED AS SOON AS
POSSIBLE."
10

As to the certificate of canvass of the municipality of Las Navas, this Court
explicitly stated;
The correction of the certificate of canvass of Las Navas
is likewise in order. Even though a pre-proclamation
issue is involved, the correction of the manifest error is
allowed under Section 15 of R. A. No. 7166.
11

Conformably with the aforesaid modified judgment in G. R. No. 105717, SPA
No. 92-282 was raffled to the First Division of the COMELEC which
conducted hearings thereon and received the arguments and evidence of
both parties who then submitted their respective memoranda on 25 June
1994. However, during the consultations on the case by the Members of the
First Division, the concurrence of at least two of them could not be
obtained; accordingly, pursuant to the COMELEC Rules, the case was
elevated for proper disposition to the COMELEC en banc to which the parties
submitted their respective memoranda on 19 November 1993.
12

On 7 January 1994, the COMELEC en banc promulgated a
resolution
13
whose dispositive portion reads as follows:
1. To direct the special Provincial Board of Canvassers
for Northern Samar (a) to include in the municipal
certificate of canvass of Silvino Lobos the forty-three
(43) votes of petitioner Lucero and the two (2) votes of
private respondent Ong as reflected in the election
returns of Precinct No. 16 (Barangay Tubgon) prepared
by the special Board of Election Inspectors constituted
by the Commission to recount the votes (ballots) in said
precinct, as canvassed by the special Municipal Board
of Canvassers for Silvino Lobos; (b) to include in the
municipal certificate of canvass of Silvino Lobos, the
sixty-one (61) votes of private respondent Ong and 29,
30, or 31 votes of petitioner Lucero as reflected in the
election returns (MBC Copy submitted as "Comelec
Copy") of Precinct No. 7 (Barangay Camaya-an), as
canvassed by the special Municipal Board of Canvassers
for Silvino Lobos; (c) to retabulate the total number of
votes of petitioner Lucero for the Municipality of Las
Navas and to enter in the provincial certificate of
canvass the correct total which is two thousand five
hundred thirty-seven (2,537) as reflected in the
Statement of Votes (C. E. Form 20-A) prepared and
submitted by the Municipal Board of Canvassers for Las
Navas; and (d) to submit to the Commission a
computation of the votes of the contending parties
including therein all the votes of petitioner Lucero (with
alternative totals) and private respondent Ong, in
Precinct Nos. 7 and 16 of Silvino Lobos and the total
votes of petitioner Lucero in the Municipality of Las
Navas as corrected. However, under no circumstances
should the Board proclaim any winning candidate until
instructed to do so by the Commission;
2. To issue an Order calling for a special election in the
last remaining Precinct No. 13 (Barangay Gusaran) of
the Municipality of Silvino Lobos if justified by the
result of the canvass by the Provincial Board of
Canvassers for Northern Samar, and to notify the
parties of the schedule of election activities for that
precinct; and
3. After including in the tabulation the results of the
special election of Precinct No. 13, to decide the issue
of the recount of the votes (ballots) of Precinct No. 7 of
Silvino Lobos, pursuant to Section 236 of the Omnibus
Election Code, to resolve the discrepancy of the votes
of petitioner Lucero in the same return, if such
discrepancy of votes of the candidates concerned
would affect the over-all results of the election after
the totality of the votes of the contending parties shall
have been determined.
Both Lucero and Ong have come to this Court by way of separate special civil
actions for certiorari to challenge the Resolution.
In G. R. No. 113107, Lucero maintains that (1) the count of the ballots in
Precinct No. 7 of Silvino Lobos must be unconditional because the election
returns therefrom are invalid; and (2) his chances in the special election in
Precinct No. 13 of Silvino Lobos would be spoiled if the returns for Precinct
No. 7 were to be included beforehand in the canvass.
In G. R. No. 113509, Ong questions (1) the authority of the COMELEC to
order the correction of the alleged manifest error in the Municipal
Certificate of Canvass of Las Navas despite the absence of any appeal; and
(2) the authority of the COMELEC to call for a special election in Precinct No.
13 almost two years after the regular election.
As we see it, the core issues in these consolidated cases are:
(1) Whether there should first be a count of the ballots of Precinct No. 7 of
Silvino Lobos before determining the necessity of holding a special election
in Precinct No. 13 of Silvino Lobos:
(2) Whether the COMELEC acted with grave abuse of discretion in ordering
the correction of the alleged manifest error in the Municipal Certificate of
Canvass of Las Navas; and
(3) Whether the COMELEC acted with grave abuse of discretion in calling for
a special election in Precinct No. 13 after almost two (2) years, or more
specifically after one (1) year and ten (10) months, following the day of the
synchronized elections.
We shall take up these issues seriatim.
I.
The answer to the first issue is in the affirmative.
We find the COMELEC's disposition regarding Precinct No. 7 to be unclear. In
the first paragraph of the dispositive portion of the challenged resolution, it
directs the Provincial Board of Canvassers "to include in the municipal
certificate of canvas of Silvino Lobos the sixty-one (61) votes of private
respondent Ong and 29, 30, or 31 votes of petitioner Lucero as reflected in
the election returns (MBC copy submitted as "COMELEC Copy") of Precinct
No. 7 (Barangay Camaya-an), as canvassed by the special Municipal Board of
Canvassers for Silvino Lobos," and "to submit to the Commission a
computation of the votes of the contending parties including therein all the
votes of petitioner Lucero (with alternative totals) and private respondent
Ong, in Precinct Nos. 7 and 16 of Silvino Lobos. . . ." On the other hand, in
the fourth paragraph of the said dispositive portion, it orders the Provincial
Board of Canvassers, after "including in the tabulation the results of the
special election of Precinct No. 13," to "decide the issue of the recount of
ELECTION additional cases| 20
the votes (ballots) of Precinct No. 7 of Silvino Lobos, pursuant to Section 236
of the Omnibus Election Code [and] to resolve the discrepancy of the votes
of petitioner Lucero in the same return, if such discrepancy of votes of the
candidate concerned would affect the over-all results of the election after
the totality of the votes of the contending parties shall have been
determined."
Obviously, instead of ordering an outright recount of the ballots of Precinct
No. 7, the COMELEC would first give full faith and credit to the questioned
election returns thereof, which it describes as the "Comelec Copy," and,
accordingly, direct the PBC to include in the municipal certificate of canvass
of Silvino Lobos the 61 votes for Ong and the uncertain votes for Lucero
29, 30, or 31. The recount would only be made if after a special election in
Precinct No. 13 shall have been held, it shall be determined that such a
recount would be necessary.
We fail to grasp the logic of the proposition. First, it is clear to us that the
COMELEC, which has in its possession the so-called "Comelec Copy" of the
questioned election returns of Precinct No. 7 and heard the witnesses who
testified thereon, doubts the authenticity of the so-called "Comelec Copy" of
the election returns of Precinct No. 7;
14
hence, it authorizes the PBC to
decide the issue of a recount "pursuant to Section 236 of the Omnibus
Election Code." Since it doubts such authenticity, it could not, without
arbitrariness and abuse of discretion, order the inclusion of the "votes" of
Ong and Lucero found in the doubtful "Comelec Copy" of the election
returns in the municipal certificate of canvass. Second, it is an
uncontroverted fact that an election was held in Precinct No. 7. None was
held in Precinct No. 13 for reasons the parties fully knew. Pursuant to
Section 6 of the Omnibus Election Code (B.P. Blg. 881), a special election
may be held in Precinct No. 13 only if the failure of the election therein
"would affect the result of the election." This "result of the election" means
the net result of the election in the rest of the precincts in a given
constituency, such that if the margin of a leading candidate over that of his
closest rival in the latter precincts is less than the total number of votes in
the precinct where there was failure of election, then such failure would
certainly affect "the result of the election"; hence, a special election must be
held. Consequently, the holding of a special election in Precinct No. 13 can
only be determined after the votes in Precinct No. 7 shall have been
included in the canvass by the Provincial Board of Canvassers.
We may further state that the so-called "Comelec Copy" of the election
returns of Precinct No. 7 can by no means be validly included in the
municipal canvass. The summary of the evidence in the "preparation" of the
election returns of Precinct No. 7, both in the challenged Resolution and in
the separate Concurring and Dissenting Opinion of Commissioners Gorospe
and Claravall, leaves no room for doubt that there was actually no
counting of the votes in Precinct No. 7. Quoted in the challenged Resolution
is a portion of the testimony of Sabina T. Jarito, Precinct Chairman of
Precinct No. 7, which clearly shows that on questions by COMELEC Chairman
Christian S. Monsod and Commissioner Vicente B. de Lima, the witness
candidly admitted that the election returns were prepared at
the "munisipyo" or municipal building and not at the polling place of
Precinct No. 7 in barangay Camaya-an.
15
This "munisipyo" is located at
the poblacion of Silvino Lobos. Under the law, the board of election
inspectors shall prepare the election returns simultaneously with the
counting of votes in the polling place.
16
There is no evidence whatsoever
that the COMELEC had, for valid reasons, authorized the transfer of venue of
the counting of the votes of Precinct No. 7 from the polling place in
barangay Camaya-an to the municipal building and that the counting did in
fact take place at the latter. Although in the Concurring and Dissenting
Opinion of Commissioners Gorospe and Claravall there is a reference to
Exhibit "E," the Joint Affidavit of Sabina Jarito and Mevilyn Surio wherein
they declare that after the voting the Board of Election Inspectors
unanimously approved to transfer the counting of votes to the Municipal
Building in the Poblacion of Silvino Lobos, which was allegedly concurred in
by all the watchers of political parties and the candidates present, the
alleged "counting" at the municipal building was denied by no less than the
Municipal Election Officer of Silvino Lobos, Antonio Tepace, and the
Municipal Treasurer thereof, Mr. Gabriel Basarte, in their affidavits marked
as Exhibit "F" and Exhibit "G,"
respectively.
17

Since there was no counting of the votes of Precinct No. 7, no valid election
returns could be made and any copy of election returns purporting to come
therefrom is a fabrication. A recount thereof, which presupposes a prior
count, would obviously be unwarranted.
Only a count then of the votes of Precinct No. 13 would heretofore be in
order. Sections 234, 235, and 236 of the Omnibus Election Code are thus still
inapplicable. And, in the light of what we stated before in relation to the
holding of a special election, such a count of the votes of Precinct No. 7
must, perforce, precede the special election in Precinct No. 13.
II.
Ong's first grievance in G. R. No. 113509 is without merit.
The order of the COMELEC for the correction of the manifest error in the
municipal certificate of canvass of Las Navas was made pursuant to the
declaration made by this Court in G. R. No. 105717 (Ong vs.
COMELEC)
18
that:
The correction of the certificate of
canvass of Las Navas is likewise in
order. Even though a pre-
proclamation issue is involved, the
correction of the manifest error is
allowed under Sec. 15 of R. A. No.
7166.
Since no motion for reconsideration was filed in that case, the decision
therein became final and entry of judgment was made on 4 August 1993.
Consequently, Ong cannot now re-litigate the issue of the correction of the
certificate of canvass of Las Navas.
III
On the authority of the COMELEC to order the holding of a special election,
Section 6 of the Omnibus Election Code provides:
Sec. 6. Failure of election. If, on account of force
majeure, violence, terrorism, fraud, or other analogous
causes the election in any polling place has not been
held on the date fixed, or had been suspended before
the hour fixed by law for the closing of the voting, or
after the voting and during the preparation and the
transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to
elect, and if in any of such cases the failure or
suspension of election would affect the result of the
election, the Commission shall, on the basis of a
verified petition by any interested party and after due
notice and hearing, call for the holding or continuation
of the election not held, suspended or which resulted in
a failure to elect on a date reasonably close to the date
of the election not held, suspended or which resulted in
a failure to elect but not later than thirty days after the
cessation of the cause of such postponement or
suspension of the election or failure to elect.
ELECTION additional cases| 21
The first paragraph of Section 4 of R. A. No. 7166 likewise
provides:
Sec. 4. Postponement, Failure of Election and Special
Elections. The postponement, declaration of failure
of election and the calling of special elections as
provided in Sections 5, 6 and 7 of the Omnibus Election
Code shall be decided by the Commission sitting en
banc by a majority votes of its members. The causes for
the declaration of a failure of election may occur before
or after the casting of votes or on the day of the
election.
There are, therefore, two requisites for the holding of special elections
under Section 6 of the Omnibus Election Code, viz., (1) that there is a failure
of election, and (2) that such failure would affect the results of the election.
The parties admit that the failure of the election in Precinct No. 13 was due
to ballot-box snatching and do not dispute the finding of the COMELEC as to
the necessity and inevitability of the holding of a special election in said
precinct, even if the result of Precinct No. 7 should be based on the
questionable "Comelec Copy" of its election returns. The COMELEC held:
Based on the adjudged correction
of the votes in favor of petitioner
Lucero in the Municipality of Las
Navas, the results of the recount
of votes (ballots) of Precinct No.
16 (Silvino Lobos), and the votes
reflected in the available copy of
the election returns for Precinct
No. 7 (Silvino Lobos), it is safe to
predict that when the special
Provincial Board of Canvassers will
reconvene to sum up the votes of
the contending parties, the
original lead of private respondent
Ong of two hundred four (204)
votes against petitioner Lucero
24,272 as against 24,068 will
be reduced to either 175 or 173
depending on whether Lucero will
be credited a low of 29 or a high of
31 votes as reflected in the
election returns of Precinct No. 7.
Without preempting the exact
figures which only the special
Provincial Board of Canvassers can
correctly determine, undoubtedly
it is inevitable that a special
election will have to be held in
Precinct No. 13 (Barangay
Gusaran) of the Municipality of
Silvino Lobos.
. . .
Given the established lead of
private respondent Ong over
petitioner Lucero, We answer in
the affirmative. According to
Comelec records, the number of
registered voters in Precinct No.
13 is two hundred thirteen
(213). Since the lead of respondent
Ong is less than the number of
registered voters, the votes in that
precinct could affect the existing
result because of the possibility
that petitioner Lucero might get a
majority over Ong in that precinct
and that majority might be more
than the present lead of Ong.
19

On the basis of the additional votes credited so far to the parties,
20
the
following computation is in order: to Ong's 24,272 votes will be added 2
more from Precinct No. 16, to make a total of 24,274, while to Lucero's
24,068 votes will be added 20 more from Las Navas and 43 from Precinct
No. 16, for a total of 24,131. Ong's earlier lead will thus be reduced to 143,
which is admittedly less than the 213 registered voters in Precinct No. 13.
21

The two requirements then for a special election under Section 6 of the
Omnibus Election Code have indeed been met.
In fixing the date of the special election, the COMELEC should see to it that:
(1) it should be not later than thirty days after the cessation of the cause of
the postponement or suspension of the election or the failure to elect, and
(2) it should be reasonably close to the date of the election not held,
suspended, or which resulted in failure to elect. The first involves questions
of fact. The second must be determined in the light of the peculiar
circumstances of a case. In the instant case, the delay was not attributable
to the poor voters of Precinct No. 13 or to the rest of the electorate of the
Second Legislative District of Northern Samar. The delay was, as stated in
the opening paragraph of this ponencia, primarily caused by the legal
skirmishes or maneuvers of the petitioners which muddled simple issues.
The Court takes judicial notice of the fact that G. R. No. 113509 is the third
case Ong has brought to this Court.
22
Considering then that the petitioners
themselves must share the blame for the delay, and taking into account the
fact that since the term of the office of the contested position is only three
years, the holding of a special election in Precinct No. 13 within the next few
months may still be considered "reasonably close to the date of the election
not held." Ong's postulation should then be rejected.
In the course of the deliberations on these cases, the Court considered the
possible application, by analogy, of Section 10, Article VII of the 1987
Constitution providing that no special election in the event of a vacancy in
the Offices of the President and Vice President "shall be called if the vacancy
occurs within eighteen months before the date of the next presidential
election," and of the second paragraph of Section 4 of R. A. No. 7166 which
provides:
In case a permanent vacancy shall
occur in the Senate or House of
Representatives at least one (1)
year before the expiration of the
term, the Commission shall call
and hold a special election to fill
the vacancy not earlier than sixty
(60) days nor longer than ninety
(90) days after the occurrence of
the vacancy. However, in case of
such vacancy in the Senate, the
special election shall be held
simultaneously with the next
succeeding regular election.
A view was expressed that we should not hold the special election
because the underlying philosophy for the prohibition to hold the
special election if the vacancy occurred within a certain period
before the next presidential election or the next regular election,
as the case may be, is obviously the avoidance of the expense to
be incurred in the holding of a special election when a regular
ELECTION additional cases| 22
election is, after all, less than a year away. The Court ultimately
resolved that the aforesaid constitutional and statutory
proscriptions are inapplicable to special elections which may be
called under Section 6 of the Omnibus Election Code. First, the
special election in the former is to fill permanent vacancies in the
Office of the President, Vice President, and Members of Congress
occurring after the election, while the special election under the
latter is due to or by reason of a failure of election. Second, a
special election under Section 6 would entail minimal costs
because it is limited to only the precincts involved and to the
candidates who, by the result of the election in a particular
constituency, would be affected by the failure of election. On the
other hand, the special election for the Offices of the President,
Vice President, and Senators would be nation-wide, and that of a
Representative, district-wide. Third, Section 6, when specifically
applied to the instant case, presupposes that no candidate had
been proclaimed and therefore the people of the Second
Legislative District of Northern Samar would be unrepresented in
the House of Representatives until the special election shall
ultimately determine the winning candidate, such that if none is
held, they would have no representation until the end of the
term. under the aforesaid constitutional and statutory provisions,
the elected officials have already served their constituencies for
more than one-half of their terms of office. Fourth, if the law had
found it fit to provide a specific and determinate time-frame for
the holding of a special election under Section 6, then it could
have easily done so in Section 4 of R. A. No. 7166.
Another serious obstacle to Ong's proposition is that, considering the
COMELEC's disposition of Precinct No. 7 in the challenged Resolution, he
would then be declared and proclaimed the duly elected Representative of
the Second Legislative District of Northern Samar despite the fact that as
earlier observed, there was no counting of the votes of Precinct No. 7, and
the results of the district elections for Representative would be affected by
the failure of the election in Precinct No. 13. To accept the proposition is to
allow a proclamation based on an incomplete canvass where the final result
would have been affected by the uncanvassed result of Precinct No. 7 and
by the failure of the election in Precinct No. 13 and to impose upon the
people of the Second Legislative District of Northern Samar a Representative
whose mandate is, at the very least, uncertain, and at the most, inexistent.
IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered:
I. DISMISSING, for lack of merit, the petition in G. R. No.
113509; and
II. In G. R. No. 113107, DIRECTING the respondent
Commission on Elections to:
(1) Reconvene, in its main office of Manila, within five
(5) days from notice hereof, the Special Board of
Canvassers of the municipality of Silvino Lobos,
Northern Samar, which shall then, as a special Board of
Election Inspectors of Precinct No. 7 of said
municipality, within forty-eight (48) hours from its
reconvening, count the ballots of said Precinct No. 7,
and deliver to the special Provincial Board of
Canvassers of the said Province a copy of the election
returns;
(2) Reconvene, in its main office in Manila, within the
same period as aforestated, the special Provincial
Board of Canvassers of Northern Samar which shall
then, within seventy-two (72) hours from its
reconvening:
(a) Include in the Municipal
Certificate of Canvass of Silvino
Lobos (1) the total number of
votes for petitioner Wilmar P.
Lucero and for petitioner Jose L.
Ong, Jr., respectively, in Precinct
No. 7 of Silvino Lobos as recorded
in the election returns submitted
by the aforementioned special
Municipal Board of Canvassers,
and (2) the forty-three (43) votes
for petitioner Wilmar P. Lucero
and the two (2) votes for
petitioner Jose L. Ong, Jr. as
reflected in the election returns of
Precinct No. 16 (Barangay Tubgon)
prepared, after a recount of the
ballots, by the special Board of
Canvassers; and after such
inclusions to enter the new totals
of the votes for the petitioners in
the Certificate of Provincial
Canvass;
(b) Retabulate the total number of
votes for Wilmar P. Lucero for the
Municipality of Las Navas,
Northern Samar, which shall be
two thousand and five hundred
thirty-seven (2,537) as reflected in
the Statement of Votes (C.E. Form
20-A) prepared and submitted by
the Municipal Board of Canvassers
of Las Navas, and to enter the
same in the Certificate of
Provincial Canvass;
(c) After the accomplishment of all
the foregoing, to sum up anew in
the Certificate of Provincial
Canvass the canvassed municipal
certificates of canvass of all the
municipalities of the Second
Legislative District of Northern
Samar and if the same would
establish that the difference in
votes between petitioner Wilmar
P. Lucero and petitioner Jose L.
Ong, Jr. is less than two hundred
and thirteen (213), hence the
failure of the election in Precinct
No. 13 would unavoidably and
inevitably affect then the result of
the election, to report to the
Commission on Elections such fact
and to furnish the latter with a
certified photocopy of the
Certificate of Provincial Canvass;
(3) Within three (3) days after receipt of the aforesaid
report from the special Provincial Board of Canvassers,
to CALL a special election in Precinct No. 13 of Silvino
Lobos, which shall be held not later than thirty (30)
days from such call; a copy of the election returns of
said special election shall forthwith be transmitted to
the Special Provincial Board of Canvassers of Northern
Samar, which shall then enter the results thereof in its
ELECTION additional cases| 23
canvass and make a final summation of the results in
the Certificate of Provincial Canvass, and thereafter,
pursuant to the Omnibus Election Code, pertinent
election laws and rules and resolutions of the
Commission, proclaim the winning candidate for
Representative of the Second Legislative District of
Northern Samar.
If for any reason whatsoever it would not be possible to
immediately reconvene the Special Municipal Board of
Canvassers of Silvino Lobos and the Special Provincial
Board of Canvassers of Northern Samar, the COMELEC
may create new ones.
No pronouncements as to costs.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado, Romero,
Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.
Bellosillo, J., is on leave.