Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 73155 July 11, 1986
PATRICIO TAN, FELIX FERRER, JUAN M. HAGAD, SERGIO HILADO, VIRGILIO GASTON,
CONCHITA MINAYA, TERESITA ESTACIO, DESIDERIO DEFERIA, ROMEO GAMBOA,
ALBERTO LACSON, FE HOFILENA, EMILY JISON, NIEVES LOPEZ AND CECILIA
MAGSAYSAY, petitioners,
vs.
THE COMMISSION ON ELECTIONS and THE PROVINCIAL TREASURER OF NEGROS
OCCIDENTAL,respondents.
Gamboa & Hofilea Law Office for petitioners.

ALAMPAY, J.:
Prompted by the enactment of Batas Pambansa Blg. 885-An Act Creating a New Province in the
Island of Negros to be known as the Province of Negros del Norte, which took effect on December 3,
1985, Petitioners herein, who are residents of the Province of Negros Occidental, in the various
cities and municipalities therein, on December 23, 1985, filed with this Court a case for Prohibition
for the purpose of stopping respondents Commission on Elections from conducting the plebiscite
which, pursuant to and in implementation of the aforesaid law, was scheduled for January 3, 1986.
Said law provides:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of
Calatrava, Taboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and
Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby
separated from the province to be known as the Province of Negros del Norte.
SEC. 2. The boundaries of the new province shall be the southern limits of the City of
Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south
and the territorial limits of the northern portion to the Island of Negros on the west,
north and east, comprising a territory of 4,019.95 square kilometers more or less.
SEC. 3. The seat of government of the new province shall be the City of Cadiz.
SEC. 4. A plebiscite shall be conducted in the proposed new province which are the
areas affected within a period of one hundred and twenty days from the approval of
this Act. After the ratification of the creation of the Province of Negros del Norte by a
majority of the votes cast in such plebiscite, the President of the Philippines shall
appoint the first officials of the province.
SEC. 5. The Commission on Elections shall conduct and supervise the plebiscite
herein provided, the expenses for which shall be charged to local funds.

SEC. 6. This Act shall takeeffect upon its approval.(Rollo, pp. 23-24)
Petitioners contend that Batas Pambansa Blg. 885 is unconstitutional and it is not in
complete accord with the Local Government Code as in Article XI, Section 3 of our
Constitution, it is expressly mandated that
See. 3. No province, city, municipality or barrio may be created, divided, merged,
abolished, or its boundary substantially altered, except in accordance with the criteria
established in the local government code, and subject to the approval by a majority
of the votes in a plebiscite in the unit or units affected.
Section 197 of the Local Government Code enumerates the conditions which must exist to provide
the legal basis for the creation of a provincial unit and these requisites are:
SEC. 197. Requisites for Creation. A province may be created if it has a territory of at
least three thousand five hundred square kilometers, a population of at least five
hundred thousand persons, an average estimated annual income, as certified by the
Ministry of Finance, of not less than ten million pesos for the last three consecutive
years, and its creation shall not reduce the population and income of the mother
province or provinces at the time of said creation to less than the minimum
requirements under this section. The territory need not be contiguous if it comprises
two or more islands.
The average estimated annual income shall include the income alloted for both the
general and infrastructural funds, exclusive of trust funds, transfers and nonrecurring
income. (Rollo, p. 6)
Due to the constraints brought about by the supervening Christmas holidays during which the Court
was in recess and unable to timely consider the petition, a supplemental pleading was filed by
petitioners on January 4, 1986, averring therein that the plebiscite sought to be restrained by them
was held on January 3, 1986 as scheduled but that there are still serious issues raised in the instant
case affecting the legality, constitutionality and validity of such exercise which should properly be
passed upon and resolved by this Court.
The plebiscite was confined only to the inhabitants of the territory of Negros del N rte, namely: the
Cities of Silay, Cadiz, and San Carlos, and the municipalities of Calatrava, Taboso, Escalante,
Sagay, Manapla, Victorias, E.B. Magalona and Don Salvador Benedicto. Because of the exclusions
of the voters from the rest of the province of Negros Occidental, petitioners found need to change
the prayer of their petition "to the end that the constitutional issues which they have raised in the
action will be ventilated and given final resolution.'"At the same time, they asked that the effects of
the plebiscite which they sought to stop be suspended until the Supreme Court shall have rendered
its decision on the very fundamental and far-reaching questions that petitioners have brought out.
Acknowledging in their supplemental petition that supervening events rendered moot the prayer in
their initial petition that the plebiscite scheduled for January 3, 1986, be enjoined, petitioners plead,
nevertheless, that... a writ of Prohibition be issued, directed to Respondent Commission on Elections to
desist from issuing official proclamation of the results of the plebiscite held on
January 3, 1986.

Finding that the exclusion and non-participation of the voters of the Province of
Negros Occidental other than those living within the territory of the new province of
Negros del Norte to be not in accordance with the Constitution, that a writ of
mandamus be issued, directed to the respondent Commission on Elections, to
schedule the holding of another plebiscite at which all the qualified voters of the
entire Province of Negros Occidental as now existing shall participate, at the same
time making pronouncement that the plebiscite held on January 3, 1986 has no legal
effect, being a patent legal nullity;
And that a similar writ of Prohibition be issued, directed to the respondent Provincial
Treasurer, to desist from ordering the release of any local funds to answer for
expenses incurred in the holding of such plebiscite until ordered by the Court. (Rollo
pp. 9-10).
Petitioners further prayed that the respondent COMELEC hold in abeyance the
issuance of any official proclamation of the results of the aforestated plebiscite.
During the pendency of this case, a motion that he be allowed to appear as amicus curiae in this
case (dated December 27, 1985 and filed with the Court on January 2, 1986) was submitted by
former Senator Ambrosio Padilla. Said motion was granted in Our resolution of January 2, 1986.
Acting on the petition, as well as on the supplemental petition for prohibition with preliminary
injunction with prayer for restraining order, the Court, on January 7, 1986 resolved, without giving
due course to the same, to require respondents to comment, not to file a motion to dismiss.
Complying with said resolution, public respondents, represented by the Office of the Solicitor
General, on January 14, 1986, filed their Comment, arguing therein that the challenged statute.Batas Pambansa 885, should be accorded the presumption of legality. They submit that the said law
is not void on its face and that the petition does not show a clear, categorical and undeniable
demonstration of the supposed infringement of the Constitution. Respondents state that the powers
of the Batasang-Pambansa to enact the assailed law is beyond question. They claim that Batas
Pambansa Big. 885 does not infringe the Constitution because the requisites of the Local
Government Code have been complied with. Furthermore, they submit that this case has now
become moot and academic with the proclamation of the new Province of Negros del Norte.
Respondents argue that the remaining cities and municipalities of the Province of Negros Occidental
not included in the area of the new Province of Negros del Norte, de not fall within the meaning and
scope of the term "unit or units affected", as referred to in Section 3 of Art. XI of our Constitution. On
this reasoning, respondents maintain that Batas Pambansa Blg. 885 does not violate the
Constitution, invoking and citing the case of Governor Zosimo Paredes versus the Honorable
Executive Secretary to the President, et al. (G.R. No. 55628, March 2, 1984 (128 SCRA 61),
particularly the pronouncements therein, hereunder quoted:
1. Admittedly,this is one of those cases where the discretion of the Court is allowed
considerable leeway. There is indeed an element of ambiguity in the use of the
expression 'unit or units affected'. It is plausible to assert as petitioners do that when
certain Barangays are separated from a parent municipality to form a new one, all
the voters therein are affected. It is much more persuasive, however, to contend as
respondents do that the acceptable construction is for those voters, who are not from
the barangays to be separated, should be excluded in the plebiscite.
2. For one thing, it is in accordance with the settled doctrine that between two
possible constructions, one avoiding a finding of unconstitutionality and the other

yielding such a result, the former is to be preferred. That which will save, not that
which will destroy, commends itself for acceptance. After all, the basic presumption
all these years is one of validity. ...
3. ... Adherence to such philosophy compels the conclusion that when there are
indications that the inhabitants of several barangays are inclined to separate from a
parent municipality they should be allowed to do so. What is more logical than to
ascertain their will in a plebiscite called for that purpose. It is they, and they alone,
who shall constitute the new unit. New responsibilities will be assumed. New burdens
will be imposed. A new municipal corporation will come into existence. Its birth will be
a matter of choice-their choice. They should be left alone then to decide for
themselves. To allow other voters to participate will not yield a true expression of
their will. They may even frustrate it, That certainly will be so if they vote against it for
selfish reasons, and they constitute the majority. That is not to abide by the
fundamental principle of the Constitution to promote local autonomy, the preference
being for smaller units. To rule as this Tribunal does is to follow an accepted principle
of constitutional construction, that in ascertaining the meaning of a particular
provision that may give rise to doubts, the intent of the framers and of the people
may be gleaned from provisions in pari materia.
Respondents submit that said ruling in the aforecited case applies equally with force in the case at
bar. Respondents also maintain that the requisites under the Local Government Code (P.D. 337) for
the creation of the new province of Negros del Norte have all been duly complied with, Respondents
discredit petitioners' allegations that the requisite area of 3,500 square kilometers as so prescribed in
the Local Government Code for a new province to be created has not been satisfied. Petitioners
insist that the area which would comprise the new province of Negros del Norte, would only be about
2,856.56 square kilometers and which evidently would be lesser than the minimum area prescribed
by the governing statute. Respondents, in this regard, point out and stress that Section 2 of Batas
Pambansa Blg. 885 creating said new province plainly declares that the territorial boundaries of
Negros del Norte comprise an area of 4,019.95 square kilometers, more or less.
As a final argument, respondents insist that instant petition has been rendered moot and academic
considering that a plebiscite has been already conducted on January 3, 1986; that as a result
thereof, the corresponding certificate of canvass indicated that out of 195,134 total votes cast in said
plebiscite, 164,734 were in favor of the creation of Negros del Norte and 30,400 were against it; and
because "the affirmative votes cast represented a majority of the total votes cast in said plebiscite,
the Chairman of the Board of Canvassers proclaimed the new province which shall be known as
"Negros del Norte". Thus, respondents stress the fact that following the proclamation of Negros del
Norte province, the appointments of the officials of said province created were announced. On these
considerations, respondents urge that this case should be dismissed for having been rendered moot
and academic as the creation of the new province is now a "fait accompli."
In resolving this case, it will be useful to note and emphasize the facts which appear to be agreed to
by the parties herein or stand unchallenged.
Firstly, there is no disagreement that the Provincial Treasurer of the Province of Negros Occidental
has not disbursed, nor was required to disburse any public funds in connection with the plebiscite
held on January 3, 1986 as so disclosed in the Comment to the Petition filed by the respondent
Provincial Treasurer of Negros Occidental dated January 20, 1986 (Rollo, pp. 36-37). Thus, the
prayer of the petitioners that said Provincial Treasurer be directed by this Court to desist from
ordering the release of any public funds on account of such plebiscite should not longer deserve
further consideration.

Secondly, in Parliamentary Bill No. 3644 which led to the enactment of Batas Pambansa Blg. 885
and the creation of the new Province of Negros del Norte, it expressly declared in Sec. 2 of the
aforementioned Parliamentary Bill, the following:
SEC. 2. The boundaries of the new province shall be the southern limits of the City of
Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the South
and the natural boundaries of the northern portion of the Island of Negros on the
West, North and East, containing an area of 285,656 hectares more or less.
(Emphasis supplied).
However, when said Parliamentary Bill No. 3644 was very quickly enacted into Batas Pambansa
Blg. 885, the boundaries of the new Province of Negros del Norte were defined therein and its
boundaries then stated to be as follows:
SECTION 1. The Cities of Silay, Cadiz, and San Carlos and the municipalities of
Calatrava, Toboso, Escalante, Sagay, Manapla, Victorias, E.R. Magalona; and
Salvador Benedicto, all in the northern portion of the Island of Negros, are hereby
separated from the Province of Negros Occidental and constituted into a new
province to be known as the Province of Negros del Norte.
SEC. 1. The boundaries of the new province shall be the southern limits of the City of
Silay, the Municipality of Salvador Benedicto and the City of San Carlos on the south
and the territorial limits of the northern portion of the Island of Negros on the West,
North and East, comprising a territory of 4,019.95 square kilometers more or less.
Equally accepted by the parties is the fact that under the certification issued by Provincial Treasurer
Julian L. Ramirez of the Province of Negros Occidental, dated July 16, 1985, it was therein certified
as follows:
xxx xxx xxx
This is to certify that the following cities and municipalities of Negros Occidental have
the land area as indicated hereunder based on the Special Report No. 3, Philippines
1980, Population, Land Area and Density: 1970, 1975 and 1980 by the National
Census and Statistics Office, Manila.
Land Area
(Sq. Km.)
1. Silay City ...................................................................214.8
2. E.B. Magalona............................................................113.3
3. Victorias.....................................................................133.9
4. Manapla......................................................................112.9
5. Cadiz City ..................................................................516.5
6. Sagay .........................................................................389.6

7. Escalante ....................................................................124.0
8. Toboso.......................................................................123.4
9. Calatrava.....................................................................504.5
10. San Carlos City...........................................................451.3
11. Don Salvador Benedicto.................................... (not available)
This certification is issued upon the request of Dr. Patricio Y. Tan for whatever
purpose it may serve him.
(SGD.) JULIAN L. RAMIREZ
Provincial Treasurer (Exh. "C" of Petition, Rollo, p. 90).
Although in the above certification it is stated that the land area of the relatively new municipality of
Don Salvador Benedicto is not available, it is an uncontradicted fact that the area comprising Don
Salvador municipality, one of the component units of the new province, was derived from the City of
San Carlos and from the Municipality of Calatrava, Negros Occidental, and added thereto was a
portion of about one-fourth the land area of the town of Murcia, Negros Occidental. It is significant to
note the uncontroverted submission of petitioners that the total land area of the entire municipality of
Murcia, Negros Occidental is only 322.9 square kilometers (Exh. "D", Rollo, p. 91). One-fourth of this
total land area of Murcia that was added to the portions derived from the land area of Calatrava,
Negros Occidental and San Carlos City (Negros Occidental) would constitute, therefore, only 80.2
square kilometers. This area of 80.2 square kilometers if then added to 2,685.2 square kilometers,
representing the total land area of the Cities of Silay, San Carlos and Cadiz and the Municipalities of
E.R. Magalona, Victorias, Manapla, Sagay, Escalante, Taboso and Calatrava, will result in
approximately an area of only 2,765.4 square kilometers using as basis the Special Report,
Philippines 1980, Population, Land Area and Density: 1970, 1975 and 1980 of the National Census
and Statistics Office, Manila (see Exhibit "C", Rollo, p. 90).
No controversion has been made by respondent with respect to the allegations of petitioners that the
original provision in the draft legislation, Parliamentary Bill No. 3644, reads:
SEC. 4. A plebiscite shall be conducted in the areas affected within a period of one
hundred and twenty days from the approval of this Act. After the ratification of the
creation of the Province of Negros del Norte by a majority of the votes cast in such
plebiscite, the President shall appoint the first officials of the new province.
However, when Batas Pambansa Blg. 885 was enacted, there was a significant change in the above
provision. The statute, as modified, provides that the requisite plebiscite "shall be conducted in the
proposed new province which are the areas affected."
It is this legislative determination limiting the plebiscite exclusively to the cities and towns which
would comprise the new province that is assailed by the petitioners as violative of the provisions of
our Constitution. Petitioners submit that Sec. 3, ART XI thereof, contemplates a plebiscite that would
be held in the unit or units affected by the creation of the new province as a result of the consequent
division of and substantial alteration of the boundaries of the existing province. In this instance, the

voters in the remaining areas of the province of Negros Occidental should have been allowed to
participate in the questioned plebiscite.
Considering that the legality of the plebiscite itself is challenged for non-compliance with
constitutional requisites, the fact that such plebiscite had been held and a new province proclaimed
and its officials appointed, the case before Us cannot truly be viewed as already moot and
academic. Continuation of the existence of this newly proclaimed province which petitioners strongly
profess to have been illegally born, deserves to be inquired into by this Tribunal so that, if indeed,
illegality attaches to its creation, the commission of that error should not provide the very excuse for
perpetuation of such wrong. For this Court to yield to the respondents' urging that, as there has
been fait accompli then this Court should passively accept and accede to the prevailing situation is
an unacceptable suggestion. Dismissal of the instant petition, as respondents so propose is a
proposition fraught with mischief. Respondents' submission will create a dangerous precedent.
Should this Court decline now to perform its duty of interpreting and indicating what the law is and
should be, this might tempt again those who strut about in the corridors of power to recklessly and
with ulterior motives, create, merge, divide and/or alter the boundaries of political subdivisions, either
brazenly or stealthily, confident that this Court will abstain from entertaining future challenges to their
acts if they manage to bring about a fait accompli.
In the light of the facts and circumstances alluded to by petitioners as attending to the unusually
rapid creation of the instant province of Negros del Norte after a swiftly scheduled plebiscite, this
Tribunal has the duty to repudiate and discourage the commission of acts which run counter to the
mandate of our fundamental law, done by whatever branch of our government. This Court gives
notice that it will not look with favor upon those who may be hereafter inclined to ram through all
sorts of legislative measures and then implement the same with indecent haste, even if such acts
would violate the Constitution and the prevailing statutes of our land. It is illogical to ask that this
Tribunal be blind and deaf to protests on the ground that what is already done is done. To such
untenable argument the reply would be that, be this so, the Court, nevertheless, still has the duty
and right to correct and rectify the wrong brought to its attention.
On the merits of the case.
Aside from the simpler factual issue relative to the land area of the new province of Negros del
Norte, the more significant and pivotal issue in the present case revolves around in the interpretation
and application in the case at bar of Article XI, Section 3 of the Constitution, which being brief and
for convenience, We again quote:
SEC. 3. No province, city, municipality or barrio may be created, divided, merged
abolished, or its boundary substantially altered, except in accordance with the criteria
established in the local government code, and subject to the approval by a majority
of the votes in a plebiscite in the unit or units affected.
It can be plainly seen that the aforecited constitutional provision makes it imperative that there be
first obtained "the approval of a majority of votes in the plebiscite in the unit or units affected"
whenever a province is created, divided or merged and there is substantial alteration of the
boundaries. It is thus inescapable to conclude that the boundaries of the existing province of Negros
Occidental would necessarily be substantially altered by the division of its existing boundaries in
order that there can be created the proposed new province of Negros del Norte. Plain and simple
logic will demonstrate than that two political units would be affected. The first would be the parent
province of Negros Occidental because its boundaries would be substantially altered. The other
affected entity would be composed of those in the area subtracted from the mother province to
constitute the proposed province of Negros del Norte.

We find no way to reconcile the holding of a plebiscite that should conform to said constitutional
requirement but eliminates the participation of either of these two component political units. No
amount of rhetorical flourishes can justify exclusion of the parent province in the plebiscite because
of an alleged intent on the part of the authors and implementors of the challenged statute to carry
out what is claimed to be a mandate to guarantee and promote autonomy of local government units.
The alleged good intentions cannot prevail and overrule the cardinal precept that what our
Constitution categorically directs to be done or imposes as a requirement must first be observed,
respected and complied with. No one should be allowed to pay homage to a supposed fundamental
policy intended to guarantee and promote autonomy of local government units but at the same time
transgress, ignore and disregard what the Constitution commands in Article XI Section 3 thereof.
Respondents would be no different from one who hurries to pray at the temple but then spits at the
Idol therein.
We find no merit in the submission of the respondents that the petition should be dismissed because
the motive and wisdom in enacting the law may not be challenged by petitioners. The principal point
raised by the petitioners is not the wisdom and motive in enacting the law but the infringement of the
Constitution which is a proper subject of judicial inquiry.
Petitioners' discussion regarding the motives behind the enactment of B.P. Blg. 885 to say the least,
are most enlightening and provoking but are factual issues the Court cannot properly pass upon in
this case. Mention by petitioners of the unexplained changes or differences in the proposed
Parliamentary Bill No. 3644 and the enacted Batas Pambansa Blg. 885; the swift and surreptitious
manner of passage and approval of said law; the abrupt scheduling of the plebiscite; the reference to
news articles regarding the questionable conduct of the said plebiscite held on January 3, 1986; all
serve as interesting reading but are not the decisive matters which should be reckoned in the
resolution of this case.
What the Court considers the only significant submissions lending a little support to respondents'
case is their reliance on the rulings and pronouncements made by this Court in the case of Governor
Zosimo Paredes versus The Honorable Executive Secretary to the President, et al., G.R. No. 55628,
March 2, 1984 (128 SCRA 6). In said case relating to a plebiscite held to ratify the creation of a new
municipality from existing barangays, this Court upheld the legality of the plebiscite which was
participated in exclusively by the people of the barangay that would constitute the new municipality.
This Court is not unmindful of this solitary case alluded to by respondents. What is, however, highly
significant are the prefatory statements therein stating that said case is "one of those cases where
the discretion of the Court is allowed considerable leeway" and that "there is indeed an element of
ambiguity in the use of the expression unit or units affected." The ruling rendered in said case was
based on a claimed prerogative of the Court then to exercise its discretion on the matter. It did not
resolve the question of how the pertinent provision of the Constitution should be correctly
interpreted.
The ruling in the aforestated case of Paredes vs. The Honorable Executive Secretary, et al.
(supra) should not be taken as a doctrinal or compelling precedent when it is acknowledged therein
that "it is plausible to assert, as petitioners do, that when certain Barangays are separated from a
parent municipality to form a new one, all the voters therein are affected."
It is relevant and most proper to mention that in the aforecited case of Paredes vs. Executive
Secretary, invoked by respondents, We find very lucidly expressed the strong dissenting view of
Justice Vicente Abad Santos, a distinguished member of this Court, as he therein voiced his opinion,
which We hereunder quote:

2. ... when the Constitution speaks of "the unit or units affected" it means all of the
people of the municipality if the municipality is to be divided such as in the case at
bar or an of the people of two or more municipalities if there be a merger. I see no
ambiguity in the Constitutional provision.
This dissenting opinion of Justice Vicente Abad Santos is the forerunner of the ruling which We
now consider applicable to the case at bar, In the analogous case of Emilio C. Lopez, Jr., versus the
Honorable Commission on Elections, L-56022, May 31, 1985, 136 SCRA 633, this dissent was
reiterated by Justice Abad Santos as he therein assailed as suffering from a constitutional infirmity a
referendum which did not include all the people of Bulacan and Rizal, when such referendum was
intended to ascertain if the people of said provinces were willing to give up some of their towns to
Metropolitan Manila. His dissenting opinion served as a useful guideline in the instant case.
Opportunity to re-examine the views formerly held in said cases is now afforded the present Court.
The reasons in the mentioned cases invoked by respondents herein were formerly considered
acceptable because of the views then taken that local autonomy would be better promoted However,
even this consideration no longer retains persuasive value.
The environmental facts in the case before Us readily disclose that the subject matter under
consideration is of greater magnitude with concomitant multifarious complicated problems. In the
earlier case, what was involved was a division of a barangay which is the smallest political unit in the
Local Government Code. Understandably, few and lesser problems are involved. In the case at bar,
creation of a new province relates to the largest political unit contemplated in Section 3, Art. XI of the
Constitution. To form the new province of Negros del Norte no less than three cities and eight
municipalities will be subtracted from the parent province of Negros Occidental. This will result in the
removal of approximately 2,768.4 square kilometers from the land area of an existing province
whose boundaries will be consequently substantially altered. It becomes easy to realize that the
consequent effects cf the division of the parent province necessarily will affect all the people living in
the separate areas of Negros Occidental and the proposed province of Negros del Norte. The
economy of the parent province as well as that of the new province will be inevitably affected, either
for the better or for the worse. Whatever be the case, either or both of these political groups will be
affected and they are, therefore, the unit or units referred to in Section 3 of Article XI of the
Constitution which must be included in the plebiscite contemplated therein.
It is a well accepted rule that "in ascertaining the meaning of a particular provision that may give rise
to doubts, the intent of the framers and of the people, may be gleaned from the provisions in pari
materia." Parliamentary Bill No. 3644 which proposed the creation of the new province of Negros del
Norte recites in Sec. 4 thereof that "the plebiscite shall be conducted in the areas affected within a
period of one hundred and twenty days from the approval of this Act." As this draft legislation speaks
of "areas," what was contemplated evidently are plurality of areas to participate in the plebiscite.
Logically, those to be included in such plebiscite would be the people living in the area of the
proposed new province and those living in the parent province. This assumption will be consistent
with the requirements set forth in the Constitution.
We fail to find any legal basis for the unexplained change made when Parliamentary Bill No. 3644
was enacted into Batas Pambansa Blg. 885 so that it is now provided in said enabling law that the
plebiscite "shall be conducted in the proposed new province which are the areas affected." We are
not disposed to agree that by mere legislative fiat the unit or units affected referred in the
fundamental law can be diminished or restricted by the Batasang Pambansa to cities and
municipalities comprising the new province, thereby ignoring the evident reality that there are other
people necessarily affected.

In the mind of the Court, the change made by those responsible for the enactment of Batas
Pambansa Blg. 885 betrays their own misgivings. They must have entertained apprehensions that
by holding the plebiscite only in the areas of the new proposed province, this tactic will be tainted
with illegality. In anticipation of a possible strong challenge to the legality of such a plebiscite there
was, therefore, deliberately added in the enacted statute a self-serving phrase that the new province
constitutes the area affected. Such additional statement serves no useful purpose for the same is
misleading, erroneous and far from truth. The remaining portion of the parent province is as much an
area affected. The substantial alteration of the boundaries of the parent province, not to mention the
other adverse economic effects it might suffer, eloquently argue the points raised by the petitioners.
Petitioners have averred without contradiction that after the creation of Negros del Norte, the
province of Negros Occidental would be deprived of the long established Cities of Silay, Cadiz, and
San Carlos, as well as the municipality of Victorias. No controversion has been made regarding
petitioners' assertion that the areas of the Province of Negros Occidental will be diminished by about
285,656 hectares and it will lose seven of the fifteen sugar mills which contribute to the economy of
the whole province. In the language of petitioners, "to create Negros del Norte, the existing territory
and political subdivision known as Negros Occidental has to be partitioned and dismembered. What
was involved was no 'birth' but "amputation." We agree with the petitioners that in the case of Negros
what was involved was a division, a separation; and consequently, as Sec. 3 of Article XI of the
Constitution anticipates, a substantial alteration of boundary.
As contended by petitioners,
Indeed, the terms 'created', 'divided', 'merged', 'abolished' as used in the
constitutional provision do not contemplate distinct situation isolated from the
mutually exclusive to each other. A Province maybecreated where an existing
province is divided or two provinces merged. Such cases necessarily will involve
existing unit or units abolished and definitely the boundary being substantially
altered.
It would thus be inaccurate to state that where an existing political unit is divided or
its boundary substantially altered, as the Constitution provides, only some and not all
the voters in the whole unit which suffers dismemberment or substantial alteration of
its boundary are affected. Rather, the contrary is true.
It is also Our considered view that even hypothetically assuming that the merits of this case can
depend on the mere discretion that this Court may exercise, nevertheless, it is the petitioners' case
that deserve to be favored.
It is now time for this Court to set aside the equivocations and the indecisive pronouncements in the
adverted case of Paredes vs. the Honorable Executive Secretary, et al. (supra). For the reasons
already here express, We now state that the ruling in the two mentioned cases sanctioning the
exclusion of the voters belonging to an existing political unit from which the new political unit will be
derived, from participating in the plebiscite conducted for the purpose of determining the formation of
another new political unit, is hereby abandoned.
In their supplemental petition, dated January 4, 1986, it is prayed for by petitioners that a writ of
mandamus be issued, directing the respondent Commission on Elections, to schedule the holding of
another plebiscite at which all the qualified voters of the entire province of Negros Occidental as now
existing shall participate and that this Court make a pronouncement that the plebiscite held on
January 3, 1986 has no legal effect for being a patent nullity.

The Court is prepared to declare the said plebiscite held on January 3, 1986 as null and void and
violative of the provisions of Sec. 3, Article XI of the Constitution. The Court is not, however,
disposed to direct the conduct of a new plebiscite, because We find no legal basis to do so. With
constitutional infirmity attaching to the subject Batas Pambansa Big. 885 and also because the
creation of the new province of Negros del Norte is not in accordance with the criteria established in
the Local Government Code, the factual and legal basis for the creation of such new province which
should justify the holding of another plebiscite does not exist.
Whatever claim it has to validity and whatever recognition has been gained by the new province of
Negros del Norte because of the appointment of the officials thereof, must now be erased. That
Negros del Norte is but a legal fiction should be announced. Its existence should be put to an end as
quickly as possible, if only to settle the complications currently attending to its creation. As has been
manifested, the parent province of Negros del Norte has been impleaded as the defendant in a suit
filed by the new Province of Negros del Norte, before the Regional Trial Court of Negros (del Norte),
docketed as Civil Case No. 169-C, for the immediate allocation, distribution and transfer of funds by
the parent province to the new province, in an amount claimed to be at least P10,000,000.00.
The final nail that puts to rest whatever pretension there is to the legality of the province of Negros
del Norte is the significant fact that this created province does not even satisfy the area requirement
prescribed in Section 197 of the Local Government Code, as earlier discussed.
It is of course claimed by the respondents in their Comment to the exhibits submitted by the
petitioners (Exhs. C and D, Rollo, pp. 19 and 91), that the new province has a territory of 4,019.95
square kilometers, more or less. This assertion is made to negate the proofs submitted, disclosing
that the land area of the new province cannot be more than 3,500 square kilometers because its
land area would, at most, be only about 2,856 square kilometers, taking into account government
statistics relative to the total area of the cities and municipalities constituting Negros del Norte.
Respondents insist that when Section 197 of the Local Government Code speaks of the territory of
the province to be created and requires that such territory be at least 3,500 square kilometers, what
is contemplated is not only the land area but also the land and water over which the said province
has jurisdiction and control. It is even the submission of the respondents that in this regard the
marginal sea within the three mile limit should be considered in determining the extent of the territory
of the new province. Such an interpretation is strained, incorrect, and fallacious.
The last sentence of the first paragraph of Section 197 is most revealing. As so stated therein
the "territory need not be contiguous if it comprises two or more islands." The use of the
word territory in this particular provision of the Local Government Code and in the very last sentence
thereof, clearly reflects that "territory" as therein used, has reference only to the mass of land area
and excludes the waters over which the political unit exercises control.
Said sentence states that the "territory need not be contiguous." Contiguous means (a) in physical
contact; (b) touching along all or most of one side; (c) near, text, or adjacent (Webster's New World
Dictionary, 1972 Ed., p. 307). "Contiguous", when employed as an adjective, as in the above
sentence, is only used when it describes physical contact, or a touching of sides of two solid masses
of matter. The meaning of particular terms in a statute may be ascertained by reference to words
associated with or related to them in the statute (Animal Rescue League vs. Assessors, 138 A.L.R.
p. 110). Therefore, in the context of the sentence above, what need not be "contiguous" is the
"territory" the physical mass of land area. There would arise no need for the legislators to use the
word contiguous if they had intended that the term "territory" embrace not only land area but also
territorial waters. It can be safely concluded that the word territory in the first paragraph of Section
197 is meant to be synonymous with "land area" only. The words and phrases used in a statute

should be given the meaning intended by the legislature (82 C.J.S., p. 636). The sense in which the
words are used furnished the rule of construction (In re Winton Lumber Co., 63 p. 2d., p. 664).
The distinction between "territory" and "land area" which respondents make is an artificial or strained
construction of the disputed provision whereby the words of the statute are arrested from their plain
and obvious meaning and made to bear an entirely different meaning to justify an absurd or unjust
result. The plain meaning in the language in a statute is the safest guide to follow in construing the
statute. A construction based on a forced or artificial meaning of its words and out of harmony of the
statutory scheme is not to be favored (Helvering vs. Hutchings, 85 L. Ed., p. 909).
It would be rather preposterous to maintain that a province with a small land area but which has a
long, narrow, extended coast line, (such as La Union province) can be said to have a larger territory
than a land-locked province (such as Ifugao or Benguet) whose land area manifestly exceeds the
province first mentioned.
Allegations have been made that the enactment of the questioned state was marred by "dirty tricks",
in the introduction and passing of Parliamentary Bill No. 3644 "in secret haste" pursuant to sinister
designs to achieve "pure and simple gerrymandering; "that recent happenings more than amply
demonstrate that far from guaranteeing its autonomy it (Negros del Norte) has become the fiefdom
of a local strongman" (Rollo, p. 43; emphasis supplied).
It is not for this Court to affirm or reject such matters not only because the merits of this case can be
resolved without need of ascertaining the real motives and wisdom in the making of the questioned
law. No proper challenge on those grounds can also be made by petitioners in this proceeding.
Neither may this Court venture to guess the motives or wisdom in the exercise of legislative powers.
Repudiation of improper or unwise actions taken by tools of a political machinery rests ultimately, as
recent events have shown, on the electorate and the power of a vigilant people.
Petitioners herein deserve and should receive the gratitude of the people of the Province of Negros
Occidental and even by our Nation. Commendable is the patriotism displayed by them in daring to
institute this case in order to preserve the continued existence of their historic province. They were
inspired undoubtedly by their faithful commitment to our Constitution which they wish to be
respected and obeyed. Despite the setbacks and the hardships which petitioners aver confronted
them, they valiantly and unfalteringly pursued a worthy cause. A happy destiny for our Nation is
assured as long as among our people there would be exemplary citizens such as the petitioners
herein.
WHEREFORE, Batas Pambansa Blg. 885 is hereby declared unconstitutional. The proclamation of
the new province of Negros del Norte, as well as the appointment of the officials thereof are also
declared null and void.
SO ORDERED.
Abad Santos, Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz and Paras, JJ., concur.
Melencio-Herrera, J., concurs in the result.

Separate Opinions

TEEHANKEE, C.J., concurring:

I congratulate my brethren for the unanimous decision we issue today striking down an Act approved
in "deep secrecy and inordinate haste" apparently on the last day of session of the Batasang
Pambansa on December 3, 1985 and signed on the same day by the then President of the
authoritarian regime. The Act provided for the partitioning of the province of Negros Occidental and
would substantially alter its boundaries by lopping off the progressive cities of Silay, Cadiz and San
Carlos and municipality of Victorias with seven other municipalities to constitute the proposed new
province of Negros del Norte. Negros Occidental would thereby lose 4,019.95 square kilometers in
area and seven of fifteen sugar mills which contribute to the economic progress and welfare of the
whole province.
The discredited Commission on Elections of the time played its customary subservient role by
setting the plebiscite with equal "indecent haste" for January 3, 1986, notwithstanding that the Act
itself provided for an ample period of 120 days from its approval within which to inform the people of
the proposed dismemberment and allow them to freely express and discuss the momentous issue
and cast their vote intelligently. This was learned by petitioners through an item in the printed media
one day before they filed the present rush petition on December 23, 1985 to seek a restraining order
to atop the plebiscite, even as no printed copies of the Act as finally enacted and approved were
available to them and the Act had not been published, as required by law, for its effectivity. As
petitioners ruefully state: "it was in vain hope" for everything had apparently been timed for the
Christmas holidays; the Court was in Christmas recess and "there was no chance to have their plea
for a restraining order acted upon speedily enough." In fact, it was only on January 7, 1986 that the
Court took cognizance of the petition and required respondents' comment.
The scenario, as petitioners urgently asserted, was "to have the creation of the new Province a fait
accompli by the time elections are held on February 7, 1986. The transparent purpose is
unmistakably so that the new Governor and other officials shall by then have been installed in office,
ready to function for purposes of the election for President and Vice-President." Thus, the petitioners
reported after the event: "With indecent haste, the plebiscite was held; Negros del Norte was set up
and proclaimed by President Marcos as in existence; a new set of government officials headed by
Governor Armando Gustilo was appointed; and, by the time the elections were held on February 7,
1986, the political machinery was in place to deliver the 'solid North' to ex-President Marcos. The
rest is history. What happened in Negros del Norte during the elections-the unashamed use of
naked power and resources contributed in no small way to arousing 'people's power' and steel the
ordinary citizen to perform deeds of courage and patriotism that makes one proud to be a Filipino
today. (Record, pp. 9, 41).
The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts
complained of, viz. the plebiscite, the proclamation of a new province of Negros del Norte and the
appointment of its officials are equally void. The limited holding of the plebiscite only in the areas of
the proposed new province (as provided by Section 4 of the Act) to the exclusion of the voters of the
remaining areas of the integral province of Negros Occidental (namely, the three cities of Bacolod,
Bago and La Carlota and the Municipalities of La Castellana, Isabela, Moises Padilla, Pontevedra,
Hinigaran, Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan ,Hinoba-an
and Sipalay and Candoni), grossly contravenes and disregards the mandate of Article XI, section 3
of the then prevailing 1973 Constitution that no province may be created or divided or its boundary
substantially altered without "the approval of a majority of the votes in a plebiscite in the unit or units

affected." It is plain that all the cities and municipalities of the province of Negros Occidental, not
merely those of the proposed new province, comprise the units affected. It follows that the voters of
the whole and entire province of Negros Occidental have to participate and give their approval in the
plebiscite, because the whole province is affected by its proposed division and substantial alteration
of its boundary. To limit the plebiscite to only the voters of the areas to be partitioned and seceded
from the province is as absurd and illogical as allowing only the secessionists to vote for the
secession that they demanded against the wishes of the majority and to nullify the basic principle of
majority rule.
The argument of fait accompli viz. that the railroaded plebiscite of January 3, 1986 was held and can
no longer be enjoined and that the new province of Negros del Norte has been constituted, begs the
issue of invalidity of the challenged Act. This Court has always held that it "does not look with favor
upon parties 'racing to beat an injunction or restraining order' which they have reason to believe
might be forthcoming from the Court by virtue of the filing and pendency of the appropriate petition
therefor. Where the restraining order or preliminary injunction are found to have been properly
issued, as in the case at bar, mandatory writs shall be issued by the Court to restore matters to
thestatus quo ante." (Banzon v. Cruz, 45 SCRA 475, 506 [1972]). Where, as in this case, there was
somehow a failure to properly issue the restraining order stopping the holding of the illegal plebiscite,
the Court will issue the mandatory writ or judgment to restore matters to the status quo ante and
restore the territorial integrity of the province of Negros Occidental by declaring the
unconstitutionality of the challenged Act and nullifying the invalid proclamation of the proposed new
province of Negros del Norte and the equally invalid appointment of its officials.

Separate Opinions

TEEHANKEE, C.J., concurring:

I congratulate my brethren for the unanimous decision we issue today striking down an Act approved
in "deep secrecy and inordinate haste" apparently on the last day of session of the Batasang
Pambansa on December 3, 1985 and signed on the same day by the then President of the
authoritarian regime. The Act provided for the partitioning of the province of Negros Occidental and
would substantially alter its boundaries by lopping off the progressive cities of Silay, Cadiz and San
Carlos and municipality of Victorias with seven other municipalities to constitute the proposed new
province of Negros del Norte. Negros Occidental would thereby lose 4,019.95 square kilometers in
area and seven of fifteen sugar mills which contribute to the economic progress and welfare of the
whole province.
The discredited Commission on Elections of the time played its customary subservient role by
setting the plebiscite with equal "indecent haste" for January 3, 1986, notwithstanding that the Act
itself provided for an ample period of 120 days from its approval within which to inform the people of
the proposed dismemberment and allow them to freely express and discuss the momentous issue
and cast their vote intelligently. This was learned by petitioners through an item in the printed media
one day before they filed the present rush petition on December 23, 1985 to seek a restraining order
to atop the plebiscite, even as no printed copies of the Act as finally enacted and approved were
available to them and the Act had not been published, as required by law, for its effectivity. As
petitioners ruefully state: "it was in vain hope" for everything had apparently been timed for the
Christmas holidays; the Court was in Christmas recess and "there was no chance to have their plea
for a restraining order acted upon speedily enough." In fact, it was only on January 7, 1986 that the
Court took cognizance of the petition and required respondents' comment.

The scenario, as petitioners urgently asserted, was "to have the creation of the new Province a fait
accompli by the time elections are held on February 7, 1986. The transparent purpose is
unmistakably so that the new Governor and other officials shall by then have been installed in office,
ready to function for purposes of the election for President and Vice-President." Thus, the petitioners
reported after the event: "With indecent haste, the plebiscite was held; Negros del Norte was set up
and proclaimed by President Marcos as in existence; a new set of government officials headed by
Governor Armando Gustilo was appointed; and, by the time the elections were held on February 7,
1986, the political machinery was in place to deliver the 'solid North' to ex-President Marcos. The
rest is history. What happened in Negros del Norte during the elections-the unashamed use of
naked power and resources contributed in no small way to arousing 'people's power' and steel the
ordinary citizen to perform deeds of courage and patriotism that makes one proud to be a Filipino
today. (Record, pp. 9, 41).
The challenged Act is manifestly void and unconstitutional. Consequently, all the implementing acts
complained of, viz. the plebiscite, the proclamation of a new province of Negros del Norte and the
appointment of its officials are equally void. The limited holding of the plebiscite only in the areas of
the proposed new province (as provided by Section 4 of the Act) to the exclusion of the voters of the
remaining areas of the integral province of Negros Occidental (namely, the three cities of Bacolod,
Bago and La Carlota and the Municipalities of La Castellana, Isabela, Moises Padilla, Pontevedra,
Hinigaran, Himamaylan, Kabankalan, Murcia, Valladolid, San Enrique, Ilog, Cauayan ,Hinoba-an
and Sipalay and Candoni), grossly contravenes and disregards the mandate of Article XI, section 3
of the then prevailing 1973 Constitution that no province may be created or divided or its boundary
substantially altered without "the approval of a majority of the votes in a plebiscite in the unit or units
affected." It is plain that all the cities and municipalities of the province of Negros Occidental, not
merely those of the proposed new province, comprise the units affected. It follows that the voters of
the whole and entire province of Negros Occidental have to participate and give their approval in the
plebiscite, because the whole province is affected by its proposed division and substantial alteration
of its boundary. To limit the plebiscite to only the voters of the areas to be partitioned and seceded
from the province is as absurd and illogical as allowing only the secessionists to vote for the
secession that they demanded against the wishes of the majority and to nullify the basic principle of
majority rule.
The argument of fait accompli viz. that the railroaded plebiscite of January 3, 1986 was held and can
no longer be enjoined and that the new province of Negros del Norte has been constituted, begs the
issue of invalidity of the challenged Act. This Court has always held that it "does not look with favor
upon parties 'racing to beat an injunction or restraining order' which they have reason to believe
might be forthcoming from the Court by virtue of the filing and pendency of the appropriate petition
therefor. Where the restraining order or preliminary injunction are found to have been properly
issued, as in the case at bar, mandatory writs shall be issued by the Court to restore matters to
thestatus quo ante." (Banzon v. Cruz, 45 SCRA 475, 506 [1972]). Where, as in this case, there was
somehow a failure to properly issue the restraining order stopping the holding of the illegal plebiscite,
the Court will issue the mandatory writ or judgment to restore matters to the status quo ante and
restore the territorial integrity of the province of Negros Occidental by declaring the
unconstitutionality of the challenged Act and nullifying the invalid proclamation of the proposed new
province of Negros del Norte and the equally invalid appointment of its officials.

EN BANC

[G.R. No. 120318. December 5, 1997]

RICARDO "BOY" CANICOSA, petitioner, vs. COMMISSION

ELECTIONS, MUNICIPAL BOARD OF CANVASSERS
CALAMBA LAGUNA and SEVERINO LAJARA, respondents.

ON
OF

DECISION
BELLOSILLO, J.:

RICARDO "BOY" CANICOSA and SEVERINO LAJARA were candidates

for mayor in Calamba, Laguna, during the 8 May 1995 elections. After
obtaining a majority of some 24,000 votes Lajara was proclaimed winner by
the Municipal Board of Canvassers. On 15 May 1995 Canicosa filed
with the Commission on Elections (COMELEC)a Petition to Declare Failure of
Election and to Declare Null and Void the Canvass and Proclamation because
of alleged widespread frauds and anomalies in casting and counting of votes,
preparation of election returns, violence, threats, intimidation, vote buying,
unregistered voters voting, and delay in the delivery of election documents
and paraphernalia from the precincts to the Office of the Municipal
Treasurer. Canicosa particularly averred that: (a) the names of the registered
voters did not appear in the list of voters in their precincts; (b) more than onehalf of the legitimate registered voters were not able to vote with strangers
voting in their stead; (c) he was credited with less votes than he actually
received; (d) control data of the election returns was not filled up in some
precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer
were unsecured, i.e., without padlocks nor self-locking metal seals; and, (f)
there was delay in the delivery of election returns. But the COMELEC en
bancdismissed the petition on the ground that the allegations therein did not
justify a declaration of failure of election.
[1]

Indeed, the grounds cited by Canicosa do not warrant a declaration of

failure of election. Section 6 of BP Blg. 881, otherwise known as the Omnibus
Election Code,reads:
Sec. 6. Failure of election. - If, on account of force majeure, violence, terrorism,
fraud, or other analogous causes the election in any polling place has not been held on
the date fixed, or had been suspended before the hour fixed by law for the closing of

the voting, or after the voting and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such election results in a failure
to elect, and in any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or continuation
of the election not held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.
Clearly, there are only three (3) instances where a failure of election may
be declared, namely: (a) the election in any polling place has not been held on
the date fixedon account of force majeure, violence, terrorism, fraud, or other
analogous causes; (b) the election in any polling place had been suspended
before the hour fixed by law for the closing of the voting on account of force
majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the
voting and during the preparation and transmission of the election returns or in
the custody or canvass thereof, such election results in a failure to elect on
account of force majeure, violence, terrorism, fraud, or other analogous
causes.
None of the grounds invoked by Canicosa falls under any of those
enumerated.
Canicosa bewails that the names of the registered voters in the various
precincts did not appear in their respective lists of voters. But this is not a
ground to declare a failure of election. The filing of a petition for declaration of
failure of election therefore is not the proper remedy. The day following the
last day for registration of voters, the poll clerk delivers a certified list of voters
to the election registrar, election supervisor and the COMELEC, copies of
which are open to public inspection. On the same day, the poll clerk posts a
copy of the list of registered voters in each polling place. Each member of the
board of election inspectors retains a copy of the list which may be inspected
by the public in their residence or in their office during office hours.
[2]

Fifteen (15) days before the regular elections on 8 May 1995 the final list
of voters was posted in each precinct pursuant to Sec. 148 of RA No.
7166. Based on the lists thus posted Canicosa could have filed a petition for
inclusion of registered voters with the regular courts. The question of inclusion
or exclusion from the list of voters involves the right to vote which is not
within the power and authority of COMELEC to rule upon. The determination
of whether one has the right to vote is a justiciable issue properly cognizable
[3]

by our regular courts. Section 138, Art. XII, of the Omnibus Election
Code states:
Sec. 138. Jurisdiction in inclusion and exclusion cases. - The municipal and
metropolitan trial courts shall have original and exclusive jurisdiction over all matters
of inclusion and exclusion of voters from the list in their respective municipalities or
cities. Decisions of the municipal or metropolitan trial courts may be appealed directly
by the aggrieved party to the proper regional trial court within five days from receipts
of notice thereof, otherwise said decision of the municipal or metropolitan trial court
shall decide the appeal within ten days from the time the appeal was received and its
decision shall be immediately final and executory. No motion for reconsideration shall
be entertained by the courts (Sec. 37, PD 1896, as amended).
On the other hand, Canicosa could have also filed with the COMELEC a
verified complaint seeking the annulment of the book of voters pursuant to
Sec. 10, of RA No. 7166:
Sec. 10. Annulment of the List of Voters. - Any book of voters the preparation of
which has been affected with fraud, bribery, forgery, impersonation, intimidation,
force or any other similar irregularity or which is statistically improbable may be
annulled after due notice and hearing by the Commission motu propio or after the
filing of a verified complaint: Provided, that no order, ruling or decision annulling a
book of voters shall be executed within sixty (60) days before an election.
If indeed the situation herein described was common in almost all of the 557
precincts as alleged by Canicosa, then it was more expedient on his part to
avail of the remedies provided by law in order to maintain the integrity of the
election. Since Canicosa failed to resort to any of the above options, the
permanent list of voters as finally corrected before the election remains
conclusive on the question as to who had the right to vote in that election,
although not in subsequent elections.
[4]

[5]

Canicosa also avers that more than one-half (1/2) of the legitimate
registered voters were not able to vote, instead, strangers voted in their
behalf. Again, this is not a ground which warrants a declaration of failure of
election. Canicosa was allowed to appoint a watcher in every precinct. The
watcher is empowered by law to challenge any illegal voter. Thus, Secs. 199
and 202, Art. XVII, of the Omnibus Election Code, provide:
Sec. 199. Challenge of illegal voters. - (a) Any voter, or watcher may challenge any
person offering to vote for not being registered, for using the name of another or
suffering from existing disqualification. In such case, the board of election inspectors

shall satisfy itself as to whether or not the ground for the challenge is true by requiring
proof of registration or identity of the voter x x x x
Sec. 202. Record of challenges and oaths. - The poll clerk shall keep a prescribed
record of challenges and oaths taken in connection therewith and the resolution of the
board of election inspectors in each case and, upon the termination of the voting, shall
certify that it contains all the challenges made x x x x
The claim of Canicosa that he was credited with less votes than he
actually received and that the control data of the election returns was not filled
up should have been raised in the first instance before the board of election
inspectors or board of canvassers. Section 179, Art. XV, of the Omnibus
Election Code clearly provides for the rights and duties of watchers Sec. 179. Rights and duties of watchers. - x x x x The watchers x x x shall have the
right to witness and inform themselves of the proceedings of the board of election
inspectors x x x to file a protest against any irregularity or violation of law which they
believe may have been committed by the board of election inspectors or by any of its
members or by any persons, to obtain from the board of election inspectors a
certificate as to the filing of such protest and/or of the resolution thereon x x x and to
be furnished with a certificate of the number of votes in words and figures cast for
each candidate, duly signed and thumbmarked by the chairman and all the members of
the board of election inspectors x x x x
To safeguard and maintain the sanctity of election returns, Sec. 212, Art.
XVIII, of the Omnibus Election Code states Sec. 212. Election returns. - x x x x Immediately upon the accomplishment of the
election returns, each copy thereof shall be sealed in the presence of the watchers and
the public, and placed in the proper envelope, which shall likewise be sealed and
distributed as herein provided.
Furthermore, it is provided in Sec. 215 of the Omnibus Election Code that
Sec. 215. Board of election inspectors to issue a certificate of the number of votes
polled by the candidates for an office to the watchers. - After the announcement of the
results of the election and before leaving the polling place, it shall be the duty of the
board of election inspectors to issue a certificate of the number of votes received by a
candidate upon request of the watchers. All members of the board of election
inspectors shall sign the certificate.

Supplementing the preceding provisions, Secs. 16 and 17 of RA No. 6646

also require Sec. 16. Certification of votes. - After the counting of the votes cast in the precinct
and announcement of the results of the election, and before leaving the polling place,
the board of election inspectors shall issue a certificate of votes upon request of the
duly accredited watchers x x x x
Sec. 17. Certificate of Votes as Evidence. - The provisions of Secs. 235 and 236 of
Batas Pambansa Blg. 881 notwithstanding, the certificate of votes shall be admissible
in evidence to prove tampering, alteration, falsification or anomaly committed in the
election returns concerned x x x x
From the foregoing provisions, it is clear that in case of inconsistency as to
the number of votes written in the election returns and the certificate of votes,
a petition for correction of election returns must immediately be filed with
COMELEC by all or a majority of the members of the board of election
inspectors or any candidate affected by the error or mistake. In order to make
out a case for correction of election returns, there must be an error and at
least a majority of the members of the board of election inspectors agrees that
such error existed. Canicosa never mentioned that he petitioned for the
correction of the election returns before the COMELEC
Canicosa complains that the election returns were delivered late and the
ballot boxes brought to the Office of the Municipal Treasurer unsecured, i.e.,
without padlocks nor self-locking metal seals. These bare allegations cannot
impel us to declare failure of election. Assuming that the election returns were
delivered late, we still cannot see why we should declare a failure to
elect. The late deliveries did not convert the election held in Calamba into a
mockery or farce to make us conclude that there was indeed a failure of
election.
In fine, the grounds cited by Canicosa in his petition do not fall under any
of the instances enumerated in Sec. 6 of the Omnibus Election
Code. In Mitmug v. Commission on Elections we ruled that before
COMELEC can act on a verified petition seeking to declare a failure of
election, at least two (2) conditions must concur:(a) no voting has taken place
in the precincts on the date fixed by law, or even if there was voting, the
election nevertheless resulted in failure to elect; and, (b) the votes that were
not cast would affect the result of the election. From the face of the instant
petition, it is readily apparent than an election took place and that it did not
result in a failure to elect.
[6]

[7]

Canicosa finally insists that it was error on the part of COMELEC sitting en
banc to rule on his petition. He maintains that his petition should have first
been heard by a division of COMELEC and later by the COMELEC en
banc upon motion for reconsideration, pursuant to Sec. 3, Art. IX-C, of the
Constitution.
[8]

But this provision applies only when the COMELEC acts in the exercise of
its adjudicatory or quasi-judicial functions and not when it merely exercises
purely administrative functions. To reiterate, the grounds cited by Canicosa in
his petition are that: (a) the names of the registered voters did not appear in
the list of voters in their respective precincts; (b) more than one-half of the
legitimate registered voters were not able to vote with strangers voting in their
stead; (c) he was credited with less votes than he actually received; (d) the
control data of the election returns was not filled up in some precincts; (e)
ballot boxes brought to the Office of the Municipal Treasurer were unsecured,
i. e., without padlocks nor self-locking metal seals; and, (f) there was delay in
the delivery of election returns.
Clearly, all these matters require the exercise by the COMELEC of its
administrative functions. Section 2, Art. IX-C, of the 1987 Constitution grants
extensive administrative powers to the COMELEC with regard to the
enforcement and administration of all laws and regulations relative to the
conduct of elections. Likewise, Sec. 52 of BP Blg. 881, otherwise known as
the Omnibus Election Code, states:
Sec. 52. Powers and functions of the Commission on Elections. - In addition to the
powers and functions conferred upon it by the Constitution, the Commission shall
have exclusive charge of the enforcement and administration of all laws relative to the
conduct of elections for the purpose of ensuring free, orderly and honest elections x x
xx
Quite obviously, it is only in the exercise of its adjudicatory or quasi-judicial
powers that the COMELEC is mandated to hear and decide cases first by
Division and then, upon motion for reconsideration, by the COMELEC en
banc. This is when it is jurisdictional. In the instant case, as aforestated, the
issues presented demand only the exercise by the COMELEC of its
administrative functions.
The COMELEC exercises direct and immediate supervision and control
over national and local officials or employees, including members of any
national or local law enforcement agency and instrumentality of the
government required by law to perform duties relative to the conduct of
elections. Its power of direct supervision and control includes the power to

review, modify or set aside any act of such national and local officials. It
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
the 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 such steps or actions as may be
required pursuant to law.
[9]

[10]

Specifically, Canicosa alleged that he was credited with less votes than he
actually received. But he did not raise any objection before the Municipal
Board of Canvassers; instead, he went directly to the COMELEC. He now
claims, after the COMELEC en banc dismissed his petition, that it was error
on the part of COMELEC to rule on his petition while sitting en banc.
We have already disposed of this issue in Castromayor v. Commission on
Elections thus should be pinpointed out, in this connection, that what is
involved here is a simple problem of arithmetic. The Statement of Votes is
merely a tabulation per precinct of the votes obtained by the candidates as
reflected in the election returns. In making the correction in computation, the
MBC will be acting in an administrative capacity, under the control and
supervision of the COMELEC. Hence, any question pertaining to the
proceedings of the MBC may be raised directly to the COMELEC en banc in
the exercise of its constitutional function to decide questions affecting
elections.
[11]

Moreover, it is expressly provided in Rule 27, Sec. 7, of the Comelec

Rules of Procedure that any party dissatisfied with the ruling of the board of
canvassers shall have a right to appeal to the COMELEC en banc:
Sec. 7. Correction of Errors in Tabulation or Tallying of Results by the Board of
Canvassers. - (a) Where it is clearly shown before proclamation that manifest errors
were committed in the tabulation or tallying or election returns, or certificates of
canvass, during the canvassing as where (1) a copy of the election returns of one
precinct or two or more copies of a certificate of canvass were tabulated more than
once, (2) two copies of the election returns or certificate of canvass were tabulated
separately, (3) there was a mistake in the adding or copying of the
figures into the certificate of canvass or into the statement of votes by precinct, or (4)
so-called election returns from non-existent precincts were included in the canvass,
the board maymotu proprio, or upon verified petition by any candidate, political party,
organization or coalition of political parties, after due notice and hearing, correct the

errors committed x x x x (h) The appeal shall be heard and decided by the
Commission en banc.
In Tatlonghari v. Commission on Elections it was made to appear in
the Certificate of Canvass of Votes and Proclamation of the Winning
Candidates that respondent therein received 4,951 votes or more than what
he actually obtained. In resolving the case we ruled that the correction of the
manifest mistake in mathematical addition calls for a mere clerical task of the
board
of
canvassers. The
remedy
invoked
was
purely
administrative. In Feliciano v. Lugay we categorized the issue concerning
registration of voters, which Canicosa cited as a ground in his petition for
declaration of failure of election, as an administrative question. Likewise,
questions as to whether elections have been held or whether certain returns
were falsified or manufactured and therefore should be excluded from the
canvass do not involve the right to vote. Such questions are properly within
the administrative jurisdiction of COMELEC, hence, may be acted upon
directly by the COMELEC en banc without having to pass through any of its
divisions.
[12]

[13]

[14]

WHEREFORE, finding no grave abuse of discretion committed by public

respondent Commission on Elections, the petition is DISMISSED and its
Resolution en bancof 23 May 1995 dismissing the petition before it on the
ground that the allegations therein did not justify a declaration of failure of
election is AFFIRMED.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Melo, Puno, Vitug,
Kapunan, Francisco, Panganiban, and Martinez, JJ., concur.
Mendoza, J., on leave.

EN BANC

[G.R. No. 134096. March 3, 1999]

JOSEPH
PETER
S.
SISON, petitioner,
ELECTIONS, respondents.

vs. COMMISSION

ON

DECISION
ROMERO, J.:

Before this Court is a petition for certiorari under Rule 65 of the Revised Rules of Court
which impugns the Resolution[1] of public respondent Commission on Elections (COMELEC)
dated June 22, 1998 that dismissed petitioner Joseph Peter S. Sison's earlier petition[2] in SPC No.
98-134, entitled In the Matter of the Petition to Suspend the Canvassing of Votes and/or
Proclamation in Quezon City and to Declare a Failure of Elections.
It appears that while the election returns were being canvassed by the Quezon City Board of
Canvassers but before the winning candidates were proclaimed, petitioner commenced suit
before the COMELEC by filing a petition seeking to suspend the canvassing of votes and/or
proclamation in Quezon City and to declare a failure of elections. The said petition was
supposedly filed pursuant to Section 6[3] of the Omnibus Election Code (Batas Pambansa Blg.
881, as amended) on the ground of massive and orchestrated fraud and acts analogous thereto
which occurred after the voting and during the preparation of election returns and in the custody
or canvass thereof, which resulted in a failure to elect.[4]
In support of his allegation of massive and orchestrated fraud, petitioner cited specific
instances which are summarized and set forth below:
1. The Board of Canvassers announced that election returns with no inner seal would be
included in the canvass;
2. Board of Election Inspectors brought home copies of election returns meant for the City
Board of Canvassers;
3. Petitioner, through counsel, raised written objections to the inclusion in the canvass of
election returns which were either tampered with, altered or falsified, or otherwise not
authentic;
4. According to the minutes of the City Board of Canvassers, there were precincts with missing
election returns;
5. Several election returns with no data on the number of votes cast for vice mayoralty position;
6. Highly suspicious persons sneaking in some election returns and documents into the
canvassing area;

7. Concerned citizen found minutes of the counting, keys, locks and metal seal in the
COMELEC area for disposal as trash;
8. Board of Election Inspectors have volunteered information that they placed the copy of the
election returns meant for the City Board of Canvassers in the ballot boxes deposited with the
City Treasurer allegedly due to fatigue and lack of sleep;
9. Ballot boxes were never in the custody of the COMELEC and neither the parties nor their
watchers were allowed to enter the restricted area where these boxes passed through on the way
to the basement of the City Hall where they were supposedly kept; and
10. In the elections in Barangay New Era, there was a clear pattern of voting which would show
that the election returns were manufactured and that no actual voting by duly qualified voters
took place therein.

While the petition was pending before the COMELEC, the City Board of Canvassers
proclaimed the winners of the elections in Quezon City, including the winning candidate for the
post of vice mayor. On June 22, 1998, the COMELEC promulgated its challenged resolution
dismissing the petition before it on the ground (1) that the allegations therein were not supported
by sufficient evidence, and (2) that the grounds recited were not among the pre-proclamation
issues set fourth in Section 17 of Republic Act No. 7166.[5]
Hence, this petition.
Alleging that COMELEC overstepped the limits of reasonable exercise of discretion in
dismissing SPC No. 98-134, petitioner argues in the main that the electoral body failed to afford
him basic due process, that is, the right to a hearing and presentation of evidence before ruling on
his petition. He then proceeded to argue that the election returns themselves, as well as the
minutes of the canvassing committee of the City Board of Canvassers were, by themselves,
sufficient evidence to support the petition.
Upon a meticulous study of the parties arguments together with the pertinent statutory
provisions and jurisprudence, this Court is of the opinion that there is no compelling reason why
we should withhold our imprimatur from the questioned resolution.
At the outset, we notice that petitioner exhibits an ambivalent stand as to what exactly is the
nature of the remedy he availed of at the time he initiated proceedings before the COMELEC in
SPC No. 98-134. At the start, he anchors his initiatory petition under Section 6[6] of the Omnibus
Election Code regarding failure of elections but he later builds his case as a pre-proclamation
controversy which is covered by Sections 241-248 of the Omnibus Election Code, as amended
by R.A. No. 7166.[7] In this respect, the rule is, what conjointly determine the nature of a pleading
are the allegations therein made in good faith, the stage of the proceeding at which it is filed, and
the primary objective of the party filing the same.
In any case, petitioner nonetheless cannot succeed in either of the remedies he opted to
pursue. Recently, in Matalam v. Commission on Elections,[8] we have already declared that a
pre-proclamation controversy is not the same as an action for annulment of election results or
declaration of failure of elections, founded as they are on different grounds.
Under the pertinent codal provision of the Omnibus Election Code, there are only three (3)
instances where a failure of elections may be declared, namely: (a) the election in any polling
place has not been held on the date fixed on account of force majeure, violence, terrorism, fraud,

or other analogous causes; (b) the election in any polling place had been suspendedbefore the
hour fixed by law for the closing of the voting on account of force majeure, violence, terrorism,
fraud, or other analogous causes; or (c) after the voting and during the preparation and
transmission of the election returns or in the custody or canvass thereof, such election results in a
failure to elect on account of force majeure, violence, terrorism , fraud, or other analogous
causes.[9] (Underscoring supplied) We have painstakingly examined petitioners petition before
the COMELEC but found nothing therein that could support an action for declaration of failure
of elections. He never alleged at all that elections were either not held or
suspended. Furthermore, petitioners claim of failure to elect stood as a bare conclusion bereft of
any substantive support to describe just exactly how the failure to elect came about.
With respect to pre-proclamation controversy, it is well to note that the scope of preproclamation controversy is only limited to the issues enumerated under Section 243[10] of the
Omnibus Election Code, and the enumeration therein is restrictive and exclusive.[11] The reason
underlying the delimitation both of substantive ground and procedure is the policy of the election
law that pre-proclamation controversies should be summarily decided, consistent with the law's
desire that the canvass and proclamation be delayed as little as possible.[12] That is why such
questions which require more deliberate and necessarily longer consideration, are left for
examination in the corresponding election protest.[13]
However, with the proclamation of the winning candidate for the position contested, the
question of whether the petition raised issues proper for a pre-proclamation controversy is
already of no consequence since the well-entrench rule in such situation is that a preproclamation case before the COMELEC is no longer viable, the more appropriate remedies
being a regular election protest or a petition for quo warranto.[14] We have carefully reviewed all
recognized exceptions[15] to the foregoing rule but found nothing that could possibly apply to the
instant case based on the recitations of the petition. What is more, in paragraph 3 of the
COMELECs Omnibus Resolution No. 3049 (Omnibus Resolution on Pending Cases) dated June
29, 1998, it is clearly stated therein that All other pre-proclamation cases x x x shall be deemed
terminated pursuant to Section 16, R. A. 7166.[16] (Underscoring supplied). Section 16 which is
referred to in the aforecited omnibus resolution refers to the termination of pre-proclamation
cases when the term of the office involved has already begun, which is precisely what obtains
here. We are, of course, aware that petitioner cites the said omnibus resolution in maintaining
that his petition is one of those cases which should have remained active pursuant to paragraph 4
thereof. That exception, however, operates only when what is involved is not a pre-proclamation
controversy such as petitions for disqualification, failure of elections or analogous cases.But as
we have earlier declared, his petition, though assuming to seek a declaration of failure of
elections, is actually a case of pre-proclamation controversy and, hence, not falling within the
ambit of the exception. In any case, that omnibus resolution would not have been applied in the
first place because that was issued posterior to the date when the herein challenge resolution was
promulgated which is June 22, 1998. There was no provision that such omnibus resolution
should have retroactive effect.
Finally, as to petitioners claim that he was deprived of his right to due process in that he was
not allowed to present his evidence before the COMELEC to support his petition, the same must
likewise fail.

First, we note that his citation of Section 242 of the Omnibus Election Code as basis for his
right to present evidence is misplaced. The phrase after due notice refers only to a situation
where the COMELEC decides and, in fact, takes steps to either partially or totally suspend or
annul the proclamation of any candidate-elect. Verba legis non est recedendum. From the words
of the statute there should be no departure. The statutory provision cannot be expanded to
embrace any other situation not contemplated therein such as the one at bar where the
COMELEC is not taking any step to suspend or annul a proclamation.
Second, presentation of evidence before the COMELEC is not at all indispensable in order
to satisfy the demands of due process. Under the amendment introduced by R.A. No. 7166,
particularly Section 18 thereof, all that is required now is that the COMELEC shall dispose of
pre-proclamation controversies on the basis of the records and evidence elevated to it by the
board of canvassers. This is but in keeping with the policy of the law that cases of this nature
should be summarily decided and the will of the electorate as reflected on the election returns be
determined as speedily as possible. What exactly those records and evidence are upon which the
COMELEC based its resolution and how they have been appreciated in respect of their
sufficiency, are beyond this Courts scrutiny. But we have reason to believe, owing to the
presumption of regularity of performance of official duty and the precept that factual findings of
the COMELEC based on its assessments and duly supported by gathered evidence, are
conclusive upon the court, that the COMELEC did arrive at its conclusion with due regard to the
available evidence before it. That this is so can, in fact, be gleaned from petitioners own
allegation and admission in his petition that the election returns themselves as well as the
minutes of the Canvassing Committees and the City Board of Canvassers x x x are in the
possession of the COMELEC.[17] He even cites paragraph (g), Section 20 of the Omnibus
Election Code to validate such allegation. Hence, it is not really correct to say that the
COMELEC acted without evidentiary basis at all or that petitioner was deprived of his right to
due process.
WHEREFORE, finding no grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of public respondent Commission on Elections (COMELEC), the instant
petition is hereby DISMISSED. Consequently, the resolution of COMELEC in SPC No. 98-134
dated June 22, 1998 is AFFIRMED.
No costs.
SO ORDERED.

EN BANC

[G.R. No. 142907. November 29, 2000]

JOSE EMMANUEL L. CARLOS, petitioner, vs. HON. ADORACION G.

ANGELES, IN HER CAPACITY AS THE ACTING PRESIDING
JUDGE OF THE REGIONAL TRIAL COURT IN CALOOCAN CITY
(BRANCH 125) and ANTONIO M. SERAPIO, respondents.
DECISION
PARDO, J.:

The Case

The case before the Court is an original special civil action for certiorari and
prohibition with preliminary injunction or temporary restraining order seeking to annul
the decision of the Regional Trial Court, Caloocan City, Branch 125, the dispositive
portion of which reads as follows:

WHEREFORE, premises considered, the proclamation of the Protestee, Jose

Emmanuel Carlos, by the Board of Canvassers is accordingly SET ASIDE.
The Court hereby FINDS the Protestant, ANTONIO SERAPIO, as the DULY
ELECTED MAYOR OF VALENZUELA CITY.
SO ORDERED.

[1]

The Facts

Petitioner Jose Emmanuel L. Carlos and respondent Antonio M. Serapio were

candidates for the position of mayor of the municipality of Valenzuela, Metro Manila
(later converted into a City) during the May 11, 1998 elections.
On May 21, 1998, the Municipal Board of Canvassers, Valenzuela, Metro Manila
proclaimed petitioner as the duly elected mayor of Valenzuela having obtained 102,688
votes, the highest number of votes in the election returns.
On June 1, 1998, respondent Antonio M. Serapio who obtained 77,270 votes, the
second highest number of votes, filed with the Regional Trial Court, Valenzuela, Metro

Manila, an election protest challenging the results. Due to the inhibition of all judges of
the Regional Trial Court in Valenzuela, the case was ultimately assigned to the
Regional Trial Court, Caloocan City, Branch 125, presided over by respondent Judge
Adoracion G. Angeles.
On June 26, 1998, petitioner filed with the trial court an answer with affirmative
defenses and motion to dismiss. The court denied the motion to dismiss by order dated
January 14, 1999. Petitioner elevated the order to the Commission on Elections
(Comelec) on petition for certiorari and prohibition,[2] which, however, has remained
unresolved up to this moment.
In the course of the protest, the municipal treasurer of Valenzuela, who by law has
custody of the ballot boxes, collected the ballot boxes and delivered them to the
Regional Trial Court, Caloocan City. The trial court conducted a pre-trial conference of
the parties but it did not produce a substantial result as the parties merely paid
superficial service and only agreed on the following:
1. Both parties admit their capacity to sue and be sued;
2. Both parties admit that the protestant was a candidate during the May 11, 1998
election;
3. Both parties admit that the protestee has been proclaimed as the elected mayor of
Valenzuela, Metro Manila, on May 21, 1998;
4. Both parties admit that the protestee allegedly obtained 102,688 votes while the
protestant obtained 77,270 votes per canvass of election returns of the Board of
Canvassers.

The pre-trial was then concluded and the parties agreed to the creation of seven (7)
revision committees consisting of a chairman designated by the court and two members
representing the protestant and the protestee.
Meantime, on May 12, 1999, petitioner filed a consolidated motion that included a
prayer for authority to photocopy all the official copies of the revision reports in the
custody of the trial court. However, the trial court denied the issuance of such
authorization.[3] The court likewise denied a motion for reconsideration of the
denial.[4] Then petitioner raised the denial to the COMELEC on petition for certiorari and
mandamus,[5] which also remains unresolved until this date.
The Revision Results

The revision of the ballots showed the following results:

(1) Per physical count of the ballots:

(a) protestant Serapio - 76,246 votes.
(b) protestee Carlos - 103,551 votes.

(2) Per revision, the court invalidated 9,697 votes of the protestant but
validated 53 stray votes in his favor.
The court invalidated 19,975 votes of the protestee and validated 33 stray
votes in his favor.
The final tally showed:
(a) protestant Serapio - 66,602 votes.
(b)

protestee Carlos
of 17,007 votes.

- 83,609 votes,

giving

the

latter

winning

margin

The Trial Courts Ruling

Nevertheless, in its decision, the trial court set aside the final tally of valid votes
because of its finding of significant badges of fraud, namely:
1. The keys turned over by the City Treasurer to the court did not fit into the padlocks
of the ballot boxes that had to be forcibly opened;
2. Seven (7) ballot boxes did not contain any ballot and two (2) ballot boxes out of the
seven (7) ballot boxes did not contain any election returns;
3. Some schools where various precincts were located experienced brownouts during
the counting of votes causing delay in the counting although there was no undue
commotion or violence that occurred;
4. Some of the assigned watchers of protestant were not in their posts during the
counting of votes.

On the basis of the foregoing badges of fraud, the trial court declared that there was
enough pattern of fraud in the conduct of the election for mayor in Valenzuela. The court
held that the fraud was attributable to the protestee who had control over the election
paraphernalia and the basic services in the community such as the supply of electricity.
On April 24, 2000, the trial court rendered a judgment ruling that the perpetuation of
fraud had undoubtedly suppressed the true will of the electorate of Valenzuela and
substituted it with the will of the protestee. Notwithstanding the plurality of valid votes in
favor of the protestee, the trial court set aside the proclamation of protestee Jose
Emmanuel Carlos by the Municipal Board of Canvassers and declared protestant
Antonio M. Serapio as the duly elected mayor of Valenzuela City.[6]
Hearing news that the protestant had won the election protest, the protestee
secured a copy of the decision from the trial court on May 4, 2000. On the other hand,
notice of the decision was received by the protestant on May 03, 2000.

On May 4, 2000, protestant filed with the trial court a motion for execution pending
appeal.[7] On May 4, 2000, the trial court gave protestee five (5) days within which to
submit his comment or opposition to the motion.[8]
Petitioners Appeal to Comelec

Meantime, on May 04, 2000, petitioner filed a notice of appeal from the decision of
the trial court to the Commission on Elections.[9]
The Petition at bar

On May 8, 2000, petitioner filed the present recourse.[10]

Petitioner raised the following legal basis:
(1) The Supreme Court has original jurisdiction to entertain special civil actions of
certiorari and prohibition;
(2) There are important reasons and compelling circumstances which justify petitioners
direct recourse to the Supreme Court;
(3) Respondent judge committed grave abuse of discretion when she declared
respondent Serapio as the duly elected mayor of Valenzuela despite the fact that
she found that petitioner obtained 17,007 valid votes higher than the valid votes of
respondent Serapio;
(4) The assailed decision is contrary to law, based on speculations and not supported
by the evidence as shown in the decision itself.[11]

The Issues

The issues raised are the following:

1. Whether the Supreme Court has jurisdiction to review, by petition for certiorari as a
special civil action, the decision of the regional trial court in an election protest case
involving an elective municipal official considering that it has no appellate jurisdiction
over such decision.
2. Whether the trial court acted without jurisdiction or with grave abuse of discretion
when the court set aside the proclamation of petitioner and declared respondent
Serapio as the duly elected mayor of Valenzuela City despite its finding that
petitioner garnered 83,609 valid votes while respondent obtained 66,602 valid votes,
or a winning margin of 17,007 votes.

TRO Issued

On May 8, 2000, we issued a temporary restraining order ordering respondent court

to cease and desist from further taking cognizance of Election Protest No. 14-V-98 more
specifically from taking cognizance of and acting on the Motion for Execution Pending
Appeal filed by respondent Serapio on May 4, 2000.[12]
Respondents Position

On May 15, 2000, respondent Serapio filed his comment with omnibus motion to lift
the temporary restraining order and to declare petitioner in contempt of court for
violating the rule against forum shopping.[13] He submitted that Comelec and not the
Supreme Court has jurisdiction over the present petition for certiorari assailing the
decision dated April 24, 2000 of the regional trial court. Assuming that this Court and
Comelec have concurrent jurisdiction and applying the doctrine of primary jurisdiction,
the Comelec has jurisdiction since petitioner has perfected his appeal therewith before
the filing of the instant petition. Certiorari cannot be a substitute for an appeal; the
present petition is violative of Revised Circular No. 28-91 on forum-shopping; issues
raised are factual, not correctible by certiorari; and that the temporary restraining order
should be lifted, the petition dismissed, and petitioner and counsel should be made to
explain why they should not be punished for contempt of court.
The Courts Ruling

We find the petition impressed with merit.[14]

I. The Supreme Court is vested with original jurisdiction to issue writs of certiorari,
prohibition and mandamus against the decision of the regional trial court in the
election protest case before it, regardless of whether it has appellate jurisdiction
over such decision.

Article VIII, Section 5 (1) of the 1987 Constitution provides that:

Sec. 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other
public ministers and consuls, and over petitions
for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.
xxx
Rule 65, Section 1 of the 1997 Rules of Civil Procedure, as amended, provides that:

SECTION 1. Petition for certiorari.When any tribunal, board or officer

exercising judicial or quasi-judicial functions has acted without or in excess of
its or his jurisdiction, or with grave abuse of discretion amounting to lack or

excess of jurisdiction, and there is no appeal, or any plain, speedy, and

adequate remedy in the course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or modifying the proceedings of
such tribunal, board or officer, and granting such incidental reliefs as law and
justice may require.
The petition shall be accompanied by a certified true copy of the judgment,
order or resolution subject thereof, copies of all pleadings and documents
relevant and pertinent thereto, and a sworn certification of non-forum
shopping as provided in the third paragraph of section 3, Rule 46.
By Constitutional fiat, the Commission on Election (Comelec) has appellate
jurisdiction over election protest cases involving elective municipal officials decided by
courts of general jurisdiction, as provided for in Article IX (C), Section 2 of the 1987
Constitution:

Sec. 2. The Commission on Elections shall exercise the following powers and
functions:
(1) x x x.
(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns and qualifications of all elective regional, provincial, and city
officials, and appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.
In like manner, the Comelec has original jurisdiction to issue writs of certiorari,
prohibition and mandamus involving election cases in aid of its appellate
jurisdiction.[15]This point has been settled in the case of Relampagos vs.
Cumba,[16] where we held:

In the face of the foregoing disquisitions, the court must, as it now does,
abandon the ruling in the Garcia and Uy and Veloria cases. We now hold that
the last paragraph of Section 50 of B. P. Blg. 697 providing as follows:
The Commission is vested with exclusive authority to hear and decide
petitions for certiorari, prohibition and mandamus involving election cases.
remains in full force and effect but only in such cases where, under paragraph
(2), Section 1, Article IX-C of the Constitution, it has exclusive appellate
jurisdiction. Simply put, the COMELEC has the authority to issue the

extraordinary writs of certiorari, prohibition, and mandamus only in aid

of its appellate jurisdiction. (Emphasis ours).
Consequently, both the Supreme Court and Comelec have concurrent jurisdiction to
issue writs of certiorari, prohibition, and mandamus over decisions of trial courts of
general jurisdiction (regional trial courts) in election cases involving elective municipal
officials. The Court that takes jurisdiction first shall exercise exclusive jurisdiction over
the case.[17]
Ergo, this Court has jurisdiction over the present petition of certiorari as a special
civil action expressly conferred on it and provided for in the Constitution.
Relative to the appeal that petitioner filed with the COMELEC, the same would not
bar the present action as an exception to the rule because under the circumstances,
appeal would not be a speedy and adequate remedy in the ordinary course of
law.[18] The exception is sparingly allowed in situations where the abuse of
discretion is not only grave and whimsical but also palpable and patent, and
the invalidity of the assailed act is shown on its face.
II. Certiorari lies. The trial court acted with grave abuse of discretion amounting to lack
or excess of jurisdiction. Its decision is void.

The next question that arises is whether certiorari lies because the trial court
committed a grave abuse of discretion amounting to lack or excess of jurisdiction in
deciding the way it did Election Protest Case No. 14-V-98, declaring respondent
Serapio as the duly elected mayor of Valenzuela, Metro Manila.
In this jurisdiction, an election means the choice or selection of candidates to public
office by popular vote[19] through the use of the ballot, and the elected officials of which
are determined through the will of the electorate.[20] An election is the embodiment of the
popular will, the expression of the sovereign power of the people. [21]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.[22] The winner is the candidate who has obtained a majority or plurality
of valid votes cast in the election.[23] 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 be declared carried unless he or it receives a
majority or plurality of the legal votes cast in the election.[24] In case of protest, a revision
or recount of the ballots cast for the candidates decides the election protest case. The
candidate receiving the highest number or plurality of votes shall be proclaimed the
winner. Even if the candidate receiving the majority votes is ineligible or disqualified, the
candidate receiving the next highest number of votes or the second placer, can not be
declared elected.[25] The wreath of victory cannot be transferred from the disqualified
winner to the repudiated loser because the law then as now only authorizes a
declaration of election in favor of the person who has obtained a plurality of votes and
does not entitle a candidate receiving the next highest number of votes to be declared
elected.[26] In other words, a defeated candidate cannot be deemed elected to the
office.[27]

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. Laws governing election
contests must be liberally construed to the end that the will of the people in the choice of
public officials may not be defeated by mere technical objections. 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. The Supreme 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.[28]

In this case, based on the revision of ballots, the trial court found that:
First, by canvass of the Municipal Board of Canvassers the results were:
Carlos - 102,668 votes
Serapio - 77,270 votes, or a winning margin of 25,418 votes
Ramon Ignacio - 20 votes.
and consequently, the Board of Canvassers proclaimed petitioner Carlos the duly
elected mayor of Valenzuela, Metro Manila.
Second, by physical count of the ballots, the results were:

Carlos - 103,551 votes

Serapio - 76,246 votes, or a winning margin of 27,305 votes.
Third, by revision of the ballots, the trial court found in a final tally that the valid
votes obtained by the candidates were as follows:

Carlos - 83,609 votes

Serapio - 66,602 votes, or a winning margin of 17,007 votes.
Consequently, the final tally clearly showed petitioner Carlos as the overwhelming
winner in the May 11, 1998 elections.
However, the trial court set aside the final tally of votes because of what the trial
court perceived to be significant badges of fraud attributable to the protestee.[29] These
are:
First: The failure of the keys turned over by the City Treasurer to the trial court to fit
the padlocks on the ballot boxes that compelled the court to forcibly open the

padlocks. The trial court concluded that the real keys were lost or the padlocks
substituted pointing to possible tampering of the contents of the ballot boxes.
Procedurally, the keys to the ballot boxes were turned over by the Board of Election
Inspectors from the precinct level to the Municipal Board of Canvassers and finally to
the municipal treasurer for safekeeping. The three-level turn-over of the keys will not
prevent the possibility of these keys being mixed up. This is an ordinary occurrence
during elections. The mere inability of the keys to fit into the padlocks attached to the
ballot boxes does not affect the integrity of the ballots. At any rate, the trial court easily
forced open the padlocks and found valid votes cast therein;
Second: Seven (7) ballot boxes were found empty. Thus, the trial court concluded
that there were missing ballots and missing election returns. This is pure speculation
without factual basis. The sea of suspicion has no shore, and the court that embarks
upon it is without rudder or compass.[30] On the other hand, the Summary of Votes as
revised does not show any unaccounted precinct or whether there was any precinct
without any ballot or election returns. It is a standard procedure of the Commission on
Elections (Comelec) to provide extra empty ballot boxes for the use of the Board of
Election Inspectors or the Board of Canvassers, in case of necessity.
The empty ballot boxes found could be the empty reserve ballot boxes that were not
used by the Board of Election Inspectors or the Board of Canvassers since therewas
neither proof nor even a claim of missing ballots or missing election returns.
Third: Some schoolhouses experienced brownout during the counting of votes.
There was nothing extraordinary that would invite serious doubts or suspicion that fraud
was committed during the brownout that occurred. Indeed, one witness stated that it
was the first time that he observed brownout in Dalandanan Elementary School and
another stated that the brownout was localized in Coloong Elementary School. Since
counting of votes lasted until midnight, the brownouts had caused only slight delay in
the canvassing of votes because the election officials availed themselves of candles,
flashlights and emergency lights. There were no reports of cheating or tampering of the
election returns. In fact, witnesses testified that the counting of votes proceeded
smoothly and no commotion or violence occurred. So, the brownouts had no effect on
the integrity of the canvass.
Fourth: The absence of watchers for candidate Serapio from their posts during the
counting of votes. This cannot be taken against candidate Carlos since it is the
candidates own look-out to protect his interest during the counting of votes and
canvassing of election returns. As long as notices were duly served to the parties, the
counting and canvassing of votes may validly proceed in the absence of
watchers. Otherwise, candidates may easily delay the counting of votes or canvassing
of returns by simply not sending their watchers. There was no incomplete canvass of
returns, contrary to what the trial court declared. The evidence showed complete
canvass in Valenzuela, Metro Manila.[31]
We cannot allow an election protest on such flimsy averments to prosper,
otherwise, the whole election process will deteriorate into an endless stream of crabs
pulling at each other, racing to disembank from the water.[32]

Assuming for the nonce that the trial court was correct in holding that the final tally
of valid votes as per revision report may be set aside because of the significant badges
of fraud, the same would be tantamount to a ruling that there were no valid votes cast at
all for the candidates, and, thus, no winner could be declared in the election protest
case. In short, there was failure of election.
In such case, the proper remedy is an action before the Commission on
Elections en banc to declare a failure of election or to annul the election. [33] However, the
case below was an election protest case involving an elective municipal position which,
under Section 251 of the Election Code, falls within the exclusive original jurisdiction of
the appropriate regional trial court.[34]
Nonetheless, the annulment of an election on the ground of fraud, irregularities and
violations of election laws may be raised as an incident to an election contest. Such
grounds for annulment of an election may be invoked in an election protest case.
However, an election must not be nullified and the voters disenfranchised whenever it is
possible to determine a winner on the basis of valid votes cast, and discard the illegally
cast ballots. In this case, the petitioner admittedly received 17,007 valid votes more than
the protestee, and therefore the nullification of the election would not lie. The power to
nullify an election must be exercised with the greatest care with a view not to
disenfranchise the voters, and only under circumstances that clearly call for such drastic
remedial measure.[35]
As heretofore stated, in this jurisdiction, elections are won on the basis of a majority
or plurality of votes cast and received by the candidates. The right to hold an elective
office is rooted on electoral mandate, not perceived entitlement to the office.[36]
More importantly, the trial court has no jurisdiction to declare a failure of election. [37]
Section 6 of the Omnibus Election Code provides that:

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 of canvass thereof, such
election results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election,
the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or
continuation of the election not held, suspended or which resulted in a failure
to elect on a date reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not later than thirty (30)
days after the cessation of the cause of such postponement or suspension of
the election or failure to elect. (Emphasis supplied)
Likewise, RA 7166 provides that:

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 vote of
its members. The causes for the declaration of a failure of election may occur
before or after the casting of votes or on the day of the election. (Emphasis
supplied)
It is the Commission (Comelec) sitting en banc that is vested with exclusive
jurisdiction to declare a failure of election.[38]
In a petition to annul an election under Section 6, Batas Pambansa Blg. 881, two
conditions must be averred in order to support a sufficient cause of action. These are:
(1) the illegality must affect more than 50% of the votes cast and (2) the good votes
can be distinguished from the bad ones. It is only when these two conditions are
established that the annulment of the election can be justified because the remaining
votes do not constitute a valid constituency.[39]
We have held that: To declare a failure of election, two (2) conditions must occur:
first, no voting has taken place in the precincts concerned on the date fixed by law or,
even if there were voting, the election nevertheless resulted in a failure to elect; and,
second, the votes not cast would affect the result of the election.[40] Neither of these
conditions was present in the case at bar.
More recently, we clarified that, Under the pertinent codal provision of the Omnibus
Election Code, there are only three (3) instances where a failure of elections may be
declared, namely: (a) the election in any polling place has not been held on the date
fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes;
(b) the election in any polling place had been suspended before the hour fixed by law
for the closing of the voting on account of force majeure, violence, terrorism, fraud, or
other analogous causes; or (c) after the voting and during the preparation and
transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect on account of force majeure, violence, terrorism,
fraud, or other analogous causes.[41]
Thus, the trial court in its decision actually pronounced a failure of election by
disregarding and setting aside the results of the election. Nonetheless, as herein-above
stated, the trial court erred to the extent of ousting itself of jurisdiction because the
grounds for failure of election were not significant and even non-existent. More
importantly, the commission of fraud can not be attributed to the protestee. There was
no evidence on record that protestee had a hand in any of the irregularities that
protestant averred. It is wrong for the trial court to state that the protestee had control
over the election paraphernalia or over electric services. The Commission on Elections
has control over election paraphernalia, through its officials and deputies.[42] The
Comelec can deputize with the concurrence of the President, law enforcement agencies
and instrumentalities of the government, including the Armed Forces of the Philippines,
for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible

elections.[43] On the other hand, electric utility services in Metro Manila, including
Valenzuela are under the control of its franchise holder, particularly the Manila Electric
Company, a public service company, certainly not owned or controlled by the
protestee. In fact, during election period, Comelec has control over such utilities as
electric and even telephone service.[44] What is important, however, is that the voters of
Valenzuela were able to cast their votes freely and fairly. And in the election protest
case, the trial court was able to recount and determine the valid votes cast.
Assuming that the trial court has jurisdiction to declare a failure of election, the
extent of that power is limited to the annulment of the election and the calling of special
elections.[45] The result is a failure of election for that particular office. In such case, the
court can not declare a winner.[46] A permanent vacancy is thus created. In such
eventuality, the duly elected vice-mayor shall succeed as provided by law.[47]
We find that the trial court committed a grave abuse of discretion amounting to lack
or excess of jurisdiction in rendering its decision proclaiming respondent Serapio the
duly elected mayor of Valenzuela, Metro Manila, on the basis of its perception of the
voice of the people of Valenzuela, even without a majority or plurality votes cast in his
favor. In fact, without a single vote in his favor as the trial court discarded all the
votes. Thus, the decision is not supported by the highest number of valid votes cast in
his favor. This violated the right to due process of law of petitioner who was not heard
on the issue of failure of election, an issue that was not raised by the protestant. A
decision is void for lack of due process if, as a result, a party is deprived of the
opportunity of being heard.[48] The trial court can not decide the election protest case
outside the issues raised. If it does, as in this case, the trial court is ousted of its
jurisdiction. Likewise, it is a basic principle that a decision with absolutely nothing to
support it is void.[49] A void decision may be assailed or impugned at any time either
directly or collaterally, by means of a petition filed in the same case or by means of a
separate action, or by resisting such decision in any action or proceeding where it is
invoked.[50] Here, the trial court indulged in speculations on its view of the voice of the
people, and decided the case disregarding the evidence, but on its own intuition, ipse
dixit.[51] How was this voice communicated to the trial court? Certainly not by competent
evidence adduced before the court as it should be, but by extra-sensory
perception. This is invalid in law. Contrary to its own finding that petitioner obtained
83,600 valid votes against 66,602 valid votes for the respondent as second placer, or a
plurality of 17,007 votes, the trial court declared the second placer as the winner.This is
a blatant abuse of judicial discretion by any account. It is a raw exercise of judicial
function in an arbitrary or despotic manner, amounting to evasion of the positive duty to
act in accord with law.[52]
In a special civil action for certiorari, the burden is on 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 Judge. By grave abuse of discretion is meant
capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction.
Mere abuse of discretion is not enough. It must be grave abuse of discretion 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.[53] We must emphasize that election to office is determined by the

highest number of votes obtained by a candidate in the election.
The Judgment

WHEREFORE, the Court GRANTS the petition. The Court ANNULS and
DECLARES VOID the decision dated April 24, 2000 of the trial court in Election Protest
Case No. V-14-98.
The temporary restraining order we issued on May 8, 2000, is made permanent.
Let Election Protest Case No. V-14-98 be remanded to the trial court for decision
within a non-extendible period of fifteen (15) days from notice of this decision. The judge
shall report to this Court on the decision rendered within five (5) days from rendition
submitting a copy thereof to the Office of the Clerk of Court en banc.
This decision is immediately executory.
No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Melo, J., in the result.

EN BANC

[G.R. No. 151914. July 31, 2002]

TEODULO M. COQUILLA, petitioner, vs. THE HON. COMMISSION ON

ELECTIONS and MR. NEIL M. ALVAREZ, respondents.
DECISION
MENDOZA, J.:

This is a petition for certiorari to set aside the resolution,[1] dated July 19, 2001, of
the Second Division of the Commission on Elections (COMELEC), ordering the
cancellation of the certificate of candidacy of petitioner Teodulo M. Coquilla for the
position of mayor of Oras, Eastern Samar in the May 14, 2001 elections and the order,
dated January 30, 2002, of the COMELEC en banc denying petitioners motion for
reconsideration.
The facts are as follows:
Petitioner Coquilla was born on February 17, 1938 of Filipino parents in Oras,
Eastern Samar. He grew up and resided there until 1965, when he joined the United
States Navy. He was subsequently naturalized as a U.S. citizen. [2] From 1970 to 1973,
petitioner thrice visited the Philippines while on leave from the U.S. Navy. [3]Otherwise,
even after his retirement from the U.S. Navy in 1985, he remained in the United States.
On October 15, 1998, petitioner came to the Philippines and took out a residence
certificate, although he continued making several trips to the United States, the last of
which took place on July 6, 2000 and lasted until August 5, 2000.[4] Subsequently,
petitioner applied for repatriation under R.A. No. 8171 [5] to the Special Committee on
Naturalization. His application was approved on November 7, 2000, and, on November
10, 2000, he took his oath as a citizen of the Philippines. Petitioner was issued
Certificate of Repatriation No. 000737 on November 10, 2000 and Bureau of
Immigration Identification Certificate No. 115123 on November 13, 2000.
On November 21, 2000, petitioner applied for registration as a voter of Butnga,
Oras, Eastern Samar. His application was approved by the Election Registration Board
on January 12, 2001.[6] On February 27, 2001, he filed his certificate of candidacy stating
therein that he had been a resident of Oras, Eastern Samar for two (2) years.[7]
On March 5, 2001, respondent Neil M. Alvarez, who was the incumbent mayor of
Oras and who was running for reelection, sought the cancellation of petitioners
certificate of candidacy on the ground that the latter had made a material
misrepresentation in his certificate of candidacy by stating that he had been a resident
of Oras for two years when in truth he had resided therein for only about six months
since November 10, 2000, when he took his oath as a citizen of the Philippines.

The COMELEC was unable to render judgment on the case before the elections on
May 14, 2001. Meanwhile, petitioner was voted for and received the highest number of
votes (6,131) against private respondents 5,752 votes, or a margin of 379 votes. On
May 17, 2001, petitioner was proclaimed mayor of Oras by the Municipal Board of
Canvassers.[8] He subsequently took his oath of office.
On July 19, 2001, the Second Division of the COMELEC granted private
respondents petition and ordered the cancellation of petitioners certificate of candidacy
on the basis of the following findings:

Respondents frequent or regular trips to the Philippines and stay in Oras,

Eastern Samar after his retirement from the U.S. Navy in 1985 cannot be
considered as a waiver of his status as a permanent resident or immigrant . . .
of the U.S.A. prior to November 10, 2000 as would qualify him to acquire the
status of residency for purposes of compliance with the one-year residency
requirement of Section 39(a) of the Local Government Code of 1991 in
relation to Sections 65 and 68 of the Omnibus Election Code. The one (1)
year residency requirement contemplates of the actual residence of a Filipino
citizen in the constituency where he seeks to be elected.
All things considered, the number of years he claimed to have resided or
stayed in Oras, Eastern Samar since 1985 as an American citizen and
permanent resident of the U.S.A. before November 10, 2000 when he
reacquired his Philippine citizenship by [repatriation] cannot be added to his
actual residence thereat after November 10, 2000 until May 14, 2001 to cure
his deficiency in days, months, and year to allow or render him eligible to run
for an elective office in the Philippines. Under such circumstances, by
whatever formula of computation used, respondent is short of the one-year
residence requirement before the May 14, 2001 elections.
[9]

Petitioner filed a motion for reconsideration, but his motion was denied by the
COMELEC en banc on January 30, 2002. Hence this petition.
I.

Two questions must first be resolved before considering the merits of this case: (a)
whether the 30-day period for appealing the resolution of the COMELEC was
suspended by the filing of a motion for reconsideration by petitioner and (b) whether the
COMELEC retained jurisdiction to decide this case notwithstanding the proclamation of
petitioner.
A. With respect to the first question, private respondent contends that the petition in
this case should be dismissed because it was filed late; that the COMELEC en
banc had denied petitioners motion for reconsideration for being pro forma; and that,
pursuant to Rule 19, 4 of the COMELEC Rules of Procedure, the said motion did not
suspend the running of the 30-day period for filing this petition. He points out that

petitioner received a copy of the resolution, dated July 19, 2001, of the COMELECs
Second Division on July 28, 2001, so that he had only until August 27, 2001 within
which to file this petition. Since the petition in this case was filed on February 11, 2002,
the same should be considered as having been filed late and should be dismissed.
Private respondents contention has no merit.
Rule 19 of the COMELEC Rules of Procedure provides in pertinent parts:

Sec. 2. Period for Filing Motions for Reconsideration. A motion to reconsider a

decision, resolution, order, or ruling of a Division shall be filed within five days
from the promulgation thereof. Such motion, if not pro-forma, suspends the
execution for implementation of the decision, resolution, order, or ruling.
Sec. 4. Effect of Motion for Reconsideration on Period to Appeal. A motion to
reconsider a decision, resolution, order, or ruling, when not pro-forma,
suspends the running of the period to elevate the matter to the Supreme
Court.
The five-day period for filing a motion for reconsideration under Rule 19, 2 should
be counted from the receipt of the decision, resolution, order, or ruling of the COMELEC
Division.[10] In this case, petitioner received a copy of the resolution of July 19, 2001 of
the COMELECs Second Division on July 28, 2001. Five days later, on August 2, 2001,
he filed his motion for reconsideration. On February 6, 2002, he received a copy of the
order, dated January 30, 2002, of the COMELEC en banc denying his motion for
reconsideration. Five days later, on February 11, 2002, he filed this petition for
certiorari. There is no question, therefore, that petitioners motion for reconsideration of
the resolution of the COMELEC Second Division, as well as his petition for certiorari to
set aside of the order of the COMELEC en banc, was filed within the period provided for
in Rule 19, 2 of the COMELEC Rules of Procedure and in Art. IX(A), 7 of the
Constitution.
It is contended, however, that petitioners motion for reconsideration before the
COMELEC en banc did not suspend the running of the period for filing this petition
because the motion was pro forma and, consequently, this petition should have been
filed on or before August 27, 2001. It was actually filed, however, only on February 11,
2002. Private respondent cites the finding of the COMELEC en banc that

An incisive examination of the allegations in the Motion for Reconsideration

shows that the same [are] a mere rehash of his averments contained in
his Verified Answerand Memorandum. Neither did respondent raise new
matters that would sufficiently warrant a reversal of the assailed resolution of
the Second Division. This makes the said Motion pro forma.
[11]

We do not think this contention is correct. The motion for reconsideration was not
pro forma and its filing did suspend the period for filing the petition for certiorari in this

case. The mere reiteration in a motion for reconsideration of the issues raised by the
parties and passed upon by the court does not make a motion pro forma; otherwise, the
movants remedy would not be a reconsideration of the decision but a new trial or some
other remedy.[12] But, as we have held in another case:[13]

Among the ends to which a motion for reconsideration is addressed, one is

precisely to convince the court that its ruling is erroneous and improper,
contrary to the law or the evidence; and in doing so, the movant has to dwell
of necessity upon the issues passed upon by the court. If a motion for
reconsideration may not discuss these issues, the consequence would be that
after a decision is rendered, the losing party would be confined to filing only
motions for reopening and new trial.
Indeed, in the cases where a motion for reconsideration was held to be pro
forma, the motion was so held because (1) it was a second motion for
reconsideration,[14] or (2) it did not comply with the rule that the motion must specify the
findings and conclusions alleged to be contrary to law or not supported by the
evidence,[15] or (3) it failed to substantiate the alleged errors,[16] or (4) it merely alleged
that the decision in question was contrary to law,[17] or (5) the adverse party was not
given notice thereof.[18]The 16-page motion for reconsideration filed by petitioner in the
COMELEC en banc suffers from none of the foregoing defects, and it was error for the
COMELEC en bancto rule that petitioners motion for reconsideration was pro forma
because the allegations raised therein are a mere rehash of his earlier pleadings or did
not raise new matters. Hence, the filing of the motion suspended the running of the 30day period to file the petition in this case, which, as earlier shown, was done within the
reglementary period provided by law.
B. As stated before, the COMELEC failed to resolve private respondents petition for
cancellation of petitioners certificate of candidacy before the elections on May 14, 2001.
In the meantime, the votes were canvassed and petitioner was proclaimed elected with
a margin of 379 votes over private respondent. Did the COMELEC thereby lose
authority to act on the petition filed by private respondent?
R.A. No. 6646 provides:

SECTION 6. Effect of Disqualification Case. Any candidate who has been

declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of the action, inquiry,
or protest and, upon motion of the complainant or any intervenor, may during
the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong. (Emphasis added)

SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of

Candidacy. The procedure hereinabove provided shall apply to petitions to
deny due course to or cancel a certificate of candidacy as provided in Section
78 of Batas Pambansa Blg. 881.
The rule then is that candidates who are disqualified by final judgment before the
election shall not be voted for and the votes cast for them shall not be counted. But
those against whom no final judgment of disqualification had been rendered may be
voted for and proclaimed, unless, on motion of the complainant, the COMELEC
suspends their proclamation because the grounds for their disqualification or
cancellation of their certificates of candidacy are strong. Meanwhile, the proceedings for
disqualification of candidates or for the cancellation or denial of certificates of
candidacy, which have been begun before the elections, should continue even after
such elections and proclamation of the winners. In Abella v. COMELEC[19] and Salcedo II
v. COMELEC,[20] the candidates whose certificates of candidacy were the subject of
petitions for cancellation were voted for and, having received the highest number of
votes, were duly proclaimed winners. This Court, in the first case, affirmed and, in the
second, reversed the decisions of the COMELEC rendered after the proclamation of
candidates, not on the ground that the latter had been divested of jurisdiction upon the
candidates proclamation but on the merits.
II.

On the merits, the question is whether petitioner had been a resident of Oras,
Eastern Samar at least one (1) year before the elections held on May 14, 2001 as he
represented in his certificate of candidacy. We find that he had not.
First, 39(a) of the Local Government Code (R.A No. 7160) provides:

Qualifications. - (a) An elective local official must be a citizen of the

Philippines; a registered voter in the barangay, municipality, city, or province
or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be
elected; a resident therein for at least one (1) year immediately preceding the
day of the election; and able to read and write Filipino or any other local
language or dialect. (Emphasis added)
The term residence is to be understood not in its common acceptation as referring
to dwelling or habitation,[21] but rather to domicile or legal residence,[22] that is, the place
where a party actually or constructively has his permanent home, where he, no matter
where he may be found at any given time, eventually intends to return and remain
(animus manendi).[23] A domicile of origin is acquired by every person at birth. It is
usually the place where the childs parents reside and continues until the same is
abandoned by acquisition of new domicile (domicile of choice).[24]
In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S.
citizen after enlisting in the U.S. Navy in 1965. From then on and until November 10,

2000, when he reacquired Philippine citizenship, petitioner was an alien without any
right to reside in the Philippines save as our immigration laws may have allowed him to
stay as a visitor or as a resident alien.
Indeed, residence in the United States is a requirement for naturalization as a U.S.
citizen. Title 8, 1427(a) of the United States Code provides:

Requirements of naturalization . Residence

(a) No person, except as otherwise provided in this subchapter, shall be
naturalized unless such applicant, (1) immediately preceding the date of filing
his application for naturalization has resided continuously, after being lawfully
admitted for permanent residence, within the United States for at least five
years and during the five years immediately preceding the date of filing his
petition has been physically present therein for periods totaling at least half of
that time, and who has resided within the State or within the district of the
Service in the United States in which the applicant filed the application for at
least three months, (2) has resided continuously within the United States from
the date of the application up to the time of admission to citizenship, and (3)
during all the period referred to in this subsection has been and still is a
person of good moral character, attached to the principles of the Constitution
of the United States, and well disposed to the good order and happiness of
the United States. (Emphasis added)
In Caasi v. Court of Appeals,[25] this Court ruled that immigration to the United States by
virtue of a greencard, which entitles one to reside permanently in that country,
constitutes abandonment of domicile in the Philippines. With more reason then does
naturalization in a foreign country result in an abandonment of domicile in the
Philippines.
Nor can petitioner contend that he was compelled to adopt American citizenship
only by reason of his service in the U.S. armed forces.[26] It is noteworthy that petitioner
was repatriated not under R.A. No. 2630, which applies to the repatriation of those who
lost their Philippine citizenship by accepting commission in the Armed Forces of the
United States, but under R.A. No. 8171, which, as earlier mentioned, provides for the
repatriation of, among others, natural-born Filipinos who lost their citizenship on account
of political or economic necessity. In any event, the fact is that, by having been
naturalized abroad, he lost his Philippine citizenship and with it his residence in the
Philippines. Until his reacquisition of Philippine citizenship on November 10, 2000,
petitioner did not reacquire his legal residence in this country.
Second, it is not true, as petitioner contends, that he reestablished residence in this
country in 1998 when he came back to prepare for the mayoralty elections of Oras by
securing a Community Tax Certificate in that year and by constantly declaring to his
townmates of his intention to seek repatriation and run for mayor in the May 14, 2001
elections.[27] The status of being an alien and a non-resident can be waived either

separately, when one acquires the status of a resident alien before acquiring Philippine
citizenship, or at the same time when one acquires Philippine citizenship. As an alien,
an individual may obtain an immigrant visa under 13[28] of the Philippine Immigration Act
of 1948 and an Immigrant Certificate of Residence (ICR)[29] and thus waive his status as
a non-resident. On the other hand, he may acquire Philippine citizenship by
naturalization under C.A. No. 473, as amended, or, if he is a former Philippine national,
he may reacquire Philippine citizenship by repatriation or by an act of Congress, [30] in
which case he waives not only his status as an alien but also his status as a nonresident alien.
In the case at bar, the only evidence of petitioners status when he entered the
country on October 15, 1998, December 20, 1998, October 16, 1999, and June 23,
2000 is the statement Philippine Immigration [] Balikbayan in his 1998-2008 U.S.
passport. As for his entry on August 5, 2000, the stamp bore the added inscription good
for one year stay.[31] Under 2 of R.A. No. 6768 (An Act Instituting a Balikbayan Program),
the term balikbayan includes a former Filipino citizen who had been naturalized in a
foreign country and comes or returns to the Philippines and, if so, he is entitled, among
others, to a visa-free entry to the Philippines for a period of one (1) year (3(c)). It would
appear then that when petitioner entered the country on the dates in question, he did so
as a visa-free balikbayan visitor whose stay as such was valid for one year only. Hence,
petitioner can only be held to have waived his status as an alien and as a non-resident
only on November 10, 2000 upon taking his oath as a citizen of the Philippines under
R.A. No. 8171.[32] He lacked the requisite residency to qualify him for the mayorship of
Oras, Eastern, Samar.
Petitioner invokes the ruling in Frivaldo v. Commission on Elections[33] in support of
his contention that the residency requirement in 39(a) of the Local Government Code
includes the residency of one who is not a citizen of the Philippines. Residency,
however, was not an issue in that case and this Court did not make any ruling on the
issue now at bar. The question in Frivaldo was whether petitioner, who took his oath of
repatriation on the same day that his term as governor of Sorsogon began on June 30,
1995, complied with the citizenship requirement under 39(a). It was held that he had,
because citizenship may be possessed even on the day the candidate assumes office.
But in the case of residency, as already noted, 39(a) of the Local Government Code
requires that the candidate must have been a resident of the municipality for at least
one (1) year immediately preceding the day of the election.
Nor can petitioner invoke this Courts ruling in Bengzon III v. House of
Representatives Electoral Tribunal.[34] What the Court held in that case was that, upon
repatriation, a former natural-born Filipino is deemed to have recovered his original
status as a natural-born citizen.
Third, petitioner nonetheless says that his registration as a voter of Butnga, Oras,
Eastern Samar in January 2001 is conclusive of his residency as a candidate because
117 of the Omnibus Election Code requires that a voter must have resided in the
Philippines for at least one year and in the city or municipality wherein he proposes to
vote for at least six months immediately preceding the election. As held in Nuval v.

Guray,[35] however, registration as a voter does not bar the filing of a subsequent case
questioning a candidates lack of residency.
Petitioners invocation of the liberal interpretation of election laws cannot avail him
any. As held in Aquino v. Commission on Elections:[36]

A democratic government is necessarily a government of laws. In a republican

government those laws are themselves ordained by the people. Through their
representatives, they dictate the qualifications necessary for service in
government positions. And as petitioner clearly lacks one of the essential
qualifications for running for membership in the House of Representatives, not
even the will of a majority or plurality of the voters of the Second District of
Makati City would substitute for a requirement mandated by the fundamental
law itself.
Fourth, petitioner was not denied due process because the COMELEC failed to act
on his motion to be allowed to present evidence. Under 5(d), in relation to 7, of R.A. No.
6646 (Electoral Reforms Law of 1987), proceedings for denial or cancellation of a
certificate of candidacy are summary in nature. The holding of a formal hearing is thus
not de rigeur. In any event, petitioner cannot claim denial of the right to be heard since
he filed a Verified Answer, a Memorandum and a Manifestation, all dated March 19,
2001, before the COMELEC in which he submitted documents relied by him in this
petition, which, contrary to petitioners claim, are complete and intact in the records.
III.

The statement in petitioners certificate of candidacy that he had been a resident of

Oras, Eastern Samar for two years at the time he filed such certificate is not true. The
question is whether the COMELEC was justified in ordering the cancellation of his
certificate of candidacy for this reason. We hold that it was. Petitioner made a false
representation of a material fact in his certificate of candidacy, thus rendering such
certificate liable to cancellation. The Omnibus Election Code provides:

SEC. 74. Contents of certificate of candidacy. The certificate of candidacy

shall state that the person filing it is announcing his candidacy for the office
stated therein and that he is eligible for said office; if for Member of the
Batasang Pambansa, the province, including its component cities, highly
urbanized city or district or sector which he seeks to represent; the political
party to which he belongs; civil status; his date of birth; residence; his post
office address for all election purposes; his profession or occupation; that he
will support and defend the Constitution of the Philippines and will maintain
true faith and allegiance thereto; that he will obey the laws, legal orders, and
decrees promulgated by the duly constituted authorities; that he is not a
permanent resident or immigrant to a foreign country; that the obligation
imposed by his oath is assumed voluntarily, without mental reservation or

purpose of evasion; and that the facts stated in the certificate of candidacy are
true to the best of his knowledge.
SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. A
verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof
is false. The petition may be filed at any time not later than twenty-five days
from the time of the filing of the certificate of candidacy and shall be decided,
after due notice and hearing, not later than fifteen days before the election.
Indeed, it has been held that a candidates statement in her certificate of candidacy
for the position of governor of Leyte that she was a resident of Kananga, Leyte when
this was not so[37] or that the candidate was a natural-born Filipino when in fact he had
become an Australian citizen[38] constitutes a ground for the cancellation of a certificate
of candidacy. On the other hand, we held in Salcedo II v. COMELEC[39] that a candidate
who used her husbands family name even though their marriage was void was not
guilty of misrepresentation concerning a material fact. In the case at bar, what is
involved is a false statement concerning a candidates qualification for an office for
which he filed the certificate of candidacy. This is a misrepresentation of a material fact
justifying the cancellation of petitioners certificate of candidacy. The cancellation of
petitioners certificate of candidacy in this case is thus fully justified.
WHEREFORE, the petition is DISMISSED and the resolution of the Second Division
of the Commission on Elections, dated July 19, 2001, and the order, dated January 30,
2002 of the Commission on Elections en banc are AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Panganiban, Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
Carpio,
Austria-Martinez, and Corona,
JJ., concur

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 78461 August 12, 1987
AUGUSTO S. SANCHEZ, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
No. 79146 August 12,1987
JUAN PONCE ENRILE, petitioner,
vs.
COMMISSION ON ELECTIONS AND SANTANINA RASUL, respondents.
No. 79212 August 12,1987
JUAN PONCE ENRILE, petitioner,
vs.
COMMISSION ON ELECTIONS AND AUGUSTO S. SANCHEZ, respondents.

PER CURIAM:
In G.R. No. 78461, candidate Augusto S. Sanchez (Sanchez) filed his petition on May 28, 1987
praying that respondent Commission on Elections (Comelec) after due hearing, be directed to
conduct a recount of the votes cast three months ago in the May 11, 1987 senatorial elections to
determine the true number of votes to be credited to him and prayed further for a restraining order
directing the Comelec to withhold the proclamation of the last four (4) winning candidates on the
ground that votes intended for him were declared as astray votes because of the sameness of his
surname with that of disqualified candidate Gil Sanchez, whose name had not been crossed out
from the Comelec election returns and other election forms.
Sanchez further alleged that on May 12, 1987, he filed an "Urgent Petition to Recount and/or Reappreciate Ballots" with the Comelec; acting on the petition, the Comelec ordered Sanchez to submit
a Bill of Particulars where votes for "Sanchez" were not counted in his favor. Sanchez' compliance
asserted that the invalidation of "Sanchez" votes occurred in all regions where the assailed Comelec
forms were distributed and cited specific precincts in Quezon City, Batangas, Pampanga, Cebu,
Caloocan, Manila and Iloilo as examples, without any particulars as to the number of votes.
The Court in its Resolutions of June 25, 1987 and July 10, 1987 sustained Comelec's position that it
be allowed to complete the canvass of the returns of the senatorial elections, (estimated at about
240,000 votes as of June 25, 1987) which would be subject thereafter to its resolution of Sanchez'
therein pending petition for recount on the basis of the merits and relevant facts thereof, and
therefore found no basis to issue the restraining order prayed for by Sanchez.

In the interval, it appears that on June 26, 1987, candidate Santanina T. Rasul (Rasul) filed her
motion for intervention and opposition to Sanchez' petition for recount pending before respondent
Comelec. On July 2, 1987, Rasul also filed her Supplemental Opposition raising additional grounds
against the recount. On July 2 and 3, 1987, Rasul and candidate Juan Ponce Enrile (Enrile), then
ranked 24th and 23rd, respectively immediate filed a petition with respondent Comelec praying for
their immediate proclamation as duly-elected senators. The Comelec deferred action on these two
petitions per its resolution dated July 4, 1987, until after the remaining uncanvassed returns shall
have been completely canvassed. On July 11, 1987, Enrile also filed his motion for intervention and
a motion to dismiss the Sanchez petition for recount. On July 13, 1987, the Comelec granted the
motions for intervention filed by candidates Rasul and Enrile.
On July 16, 1987, the Comelec, by a vote of four to three, promulgated its decision dismissing
petitioner Sanchez' petition for recount. On July 20, 1987, petitioner Sanchez filed a motion for
reconsideration of the decision of July 16, 1987, which was opposed by intervenors Rasul and
Enrile.
On July 25, 1987, the Comelec proclaimed Rasul as the 23rd senator-elect. At that time, the lead of
Rasul over Enrile was 1,910 votes only while the lead of Enrile over Sanchez was 73,034 votes with
31,000 votes still to be canvassed in three (3) municipalities of Sulu, namely, Parang, Maimbung and
Patikul, and in 15 precincts in Lanao del Sur. In proclaiming Rasul as the 23rd senator-elect, the
Comelec, while admitting that it was mathematically possible for Enrile to overtake Rasul, justified its
action by rationalizing that "this is improbable, if not highly improbable" considering that the
untabulated returns come from Muslim areas or towns "which are all bailiwicks of candidate Rasul, "
and "between a Muslim candidate and a non-Muslim one, in all probability the Muslim candidate will
obtain a higher percentage of the votes cast."
On July 28, 1987, Enrile filed with this Court his petition [G.R. No. 79146 Juan Ponce Enrile v.
Comelec and Santanina Rasul] (1) to compel the Comelec to complete the canvass of votes cast for
senators in the May 11, 1987 elections to determine the 23rd and 24th placers in the senatorial race
and (2) to annul the proclamation of respondent Rasul or to suspend the effects of such
proclamation pending the determination of the 23rd and 24th placers, on the ground of mathematical
possibility that the uncanvassed votes would materially affect the 23rd and 24th rankings in the
senatorial race, while the Comelec's proclamation of the first 20 elected senators was predicated
upon a finding that the first 20 placers would no longer be affected by the certificates of canvass still
to be submitted to the Comelec; and that Comelec gave the same reason when it proclaimed
subsequently the 21st placer (Ernesto Herrera) and 22nd placer (Mamintal Tamano).
On July 24, 1987, however, respondent Comelec, by a vote of five to two, announced its second
decision reversing its earlier decision of July 16, 1987 of dismissal of Sanchez' petition and that it
was instead granting Sanchez' petition for recount and/or re-appreciation of ballots. Comelec
actually released this second decision on July 30, 1987.
On August 3, 1987, Enrile filed with this Court his second petition [G.R. No. 79212 Juan Ponce
Enrile v. Comelec and Augusto S. Sanchez] to (1) annul the Comelec decision granting Sanchez'
petition for recount; and (2) to compel it to proclaim Enrile as duly-elected senator, with prayer for
issuance of a temporary restraining order. Enrile alleged that the Comelec exceeded its jurisdiction
in granting Sanchez' petition for recount and abused its discretion in refusing to proclaim him (Enrile
on the ground that Sanchez' petition for recount is not a pre-proclamation controversy which involves
issues affecting extrinsic validity, and not intrinsic validity, of the said election returns and that as of
July 25, 1987 up to now, Rasul's lead over him was only 1,916 votes while his lead over Sanchez
was 73,034 votes, with only 31,000 votes remaining to be canvassed in the three (3) towns of Sulu
and fifteen (15) precincts in Lanao del Sur could not offset his lead over Sanchez.

In its resolution of August 4, 1987, the Court, inter alia, required respondents to comment on Enrile's
petition against the Comelec's recount decision, and directed the maintenance of the status quo. The
parties were heard in oral argument at the joint hearing held on August 6, 1987, and the cases were
thereafter submitted for resolution.
The basic issue at bar which Sanchez himself avers in his petition is "a case of first impression"
is whether his petition for recount and/or re-appreciation of ballots filed with the Comelec may be
considered a summary pre-proclamation controversy falling within the Comelec's exclusive
jurisdiction (Sec. 242, Omnibus Election Code) or properly pertains to the realm of election protest
falling within the exclusive jurisdiction of the Senate Electoral Tribunal as "the sole judge of all
contests relating to the election, returns and qualification of the [Senate's] members." (Art. VI, Sec.
17, Constitution)
Without prejudice to the issuance of an extended opinion and after taking into consideration the
applicable legal provisions and the contentions of the contending candidates as well as the two
conflicting decisions of the Comelec, the Court rules that Sanchez' petition for recount and/or reappreciation of the ballots cast in the senatorial elections does not present a proper issue for a
summary pre-proclamation controversy. Considerations of definition, usage, doctrinal jurisprudence
and public policy demand such a ruling.
1. Sanchez anchors his petition for recount and/or reappreciation on Section 243, paragraph (b) of
the Omnibus Election Code 1 in relation to Section 234 thereof 2 with regard to material defects in canvassed
election returns. He contends that the canvassed returns discarding "Sanchez" votes as stray were
"incomplete" and therefore warrant a recount or reappreciation of the ballots under Section 234. A simple
reading of the basic provisions of the cited Section shows readily its inapplicability. By legal definition and
by the very instructions of the Comelec (Res. No. 1865, Sec. 6, promulgated on March 11, 1987), an
election return is incomplete if there is "omission in the election returns of the name of any candidate
and/or his corresponding votes" (Sec. 234) or "in case the number of votes for a candidate has been
omitted." (Sec. 6, Res. No. 1865)

Here, the election returns are complete and indicate the name of Sanchez as well as the total
number of votes that were counted and appreciated as votes in his favor by the boards of inspectors.
The fact that some votes written solely as "Sanchez" were declared stray votes because of the
inspectors' erroneous belief that Gil Sanchez had not been disqualified as a candidate, involves an
erroneous appreciation of the ballots. It is established by the law as well as jurisprudence (the cited
section being a substantial reproduction of Section 172 of the 1978 Election Code and previous
election laws) that errors in the appreciation of ballots by the board of inspectors are proper subject
for election protest and not for recount or reappreciation of the ballots.
2. The appreciation of the ballots cast in the precincts is not a "proceeding of the board of
canvassers" for purposes of pre-proclamation proceedings under section 241, Omnibus Election
Code, but of the boards of election inspectors who are called upon to count and appreciate the votes
in accordance with the rules of appreciation provided in section 211, Omnibus Election Code.
Otherwise stated, the appreciation of ballots is not part of the proceedings of the board of
canvassers. The function of ballots appreciation is performed by the boards of election inspectors at
the precinct level.
3. The scope of pre-proclamation controversy is limited to the issues enumerated under sec. 243 of
the Omnibus Election Code. The enumeration therein of the issues that may be raised in preproclamation controversy, is restrictive and exclusive. In the absence of any clear showing or proof
that the election returns canvassed are incomplete or contain material defects (sec. 234), appear to
have been tampered with, falsified or prepared under duress (sec. 235) and/or contain discrepancies
in the votes credited to any candidate, the difference of which affects the result of the election (sec.

236), which are the only instances where a pre-proclamation recount maybe resorted to, granted the
preservation of the integrity of the ballot box and its contents, Sanchez' petition must fail. The
complete election returns whose authenticity is not in question, must be prima facie considered valid
for the purpose of canvassing the same and proclamation of the winning candidates.
4. To expand the issues beyond those enumerated under sec. 243 and allow a recount/reappreciation of votes in every instance where a claim of misdeclaration of stray votes is made would
open the floodgates to such claims and paralyze canvass and proclamation proceedings, given the
propensity of the loser to demand a recount. The law and public policy mandate that all preproclamation controversies shall be heard summarily by the Commission after due notice and
hearing and just as summarily decided. (Sec. 246, Omnibus Election Code)
5. The Court has always stressed as in Alonto vs. Comelec 3 that "the policy of the election law is that
pre-proclamation controversies should be summarily decided, consistent with the law's desire that the
canvass and proclamation be delayed as little as possible. As declared in Abes et al. vs. Commission on
Elections, L-28348, December 15, 1967, the powers of the Comelec are essentially executive and
administrative in nature, and the question of whether or not there had been terrorism, vote buying and
other irregularities in the election should be ventilated in a regular election protest, and the Commission
on Elections is not the proper forum for deciding such matters," and that the Comelec and the courts
should guard "both against proclamation grabbing through tampered returns" and "the equally pernicious
effects of excessive delay of proclamations" and "attempts to paralyze canvassing and proclamation." To
allow the recount here notwithstanding the multifarious administrative and financial problems of
conducting such a recount, as enumerated by the Comelec in its two decisions when now three
months after the elections the question of who is entitled to the 24th seat of the Senate would remain
unresolved for how long no one can tell is unthinkable and certainly contrary to public policy and the
mandate of the law that the results of the election be canvassed and reported immediately on the basis of
the authentic returns which must be accorded prima facie status as bona fide reports of the votes cast for
and obtained by the candidates. 4

6. Election cases involved not only the adjudication of the private interest 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 offices within their gift. They are imbued
with public interest (Vda. de Mesa v. Mencias, 18 SCRA 533, 538).
7. The ground for recount relied upon by Sanchez is clearly not among the issues that may be raised
in a pre- proclamation controversy. His allegation of invalidation of "Sanchez" votes intended for him
bear no relation to the correctness and authenticity of the election returns canvassed. Neither the
Constitution nor statute has granted the Comelec or the board of canvassers the power in the
canvass of election returns to look beyond the face thereof, once satisfied of their authenticity (Abes
v. Comelec, 21 SCRA 1252,1256).
8. In Grand Alliance for Democracy v. Comelec, et al., G.R. No. 78302, promulgated May 27, 1987,
the Court restated certain principles governing canvass proceedings, which are fully applicable
here, mutatis mutandis, to wit:
The Court has restated the settled doctrine in senatorial elections in Ilarde v.
Commission on Elections, 31 SCRA 72, thus: "Canvass proceedings are
administrative and summary in nature, and a strongprima facie case backed up by a
specific offer of evidence and indication of its nature and importance has to be made
out to warrant the reception of evidence aliunde and the presentation of witnesses
and the delays necessarily entailed thereby. Otherwise, the paralyzation of
canvassing and proclamation proceedings leading to a vacuum in so important and
sensitive an office as that of Senator of the Republic could easily be brought about

this time involving the eight place and next time involving perhaps all the eight
places, when it is considered that the position of senator is voted for, nationwide by
all the voters of the 66 provinces and 57 cities comprising the Philippines."
And in Anni v. Izquierdo 57 SCRA 692, the Court declared that. "The decisive factor
is that where it has been duly determined by Comelec after investigation and
examination of the voting and registration records that actual voting and election by
the registered voters had taken place in the questioned precincts, the election returns
cannot be disregarded and excluded with the resulting disenfranchisement of the
voters but must be accorded prima facie status as bona fide reports of the result of
the voting for canvassing and proclamation purposes."
As the Court stated in Anni v. Rasul, 46 SCRA 758, "The rule has been time-tested.
To allow a respondent in the Comelec to raise belated questions concerning returns
at any time during the pendency of the case on review before the Comelec
notwithstanding that he has not originally raised such questions before the
canvassing board and only when he finds his position endangered would mean
undue delays in pre-proclamation proceedings before the Comelec, ... The Court has
stressed that Comelec and the courts should guard both against the proclamation
grabbing through tampered and spurious returns as well as attempts and
machinations to paralyze canvassing and proclamation ...
It should be added that the other alleged irregularities, such as the omissions of the
Commission on Elections in the distribution and protection of the election forms and
paraphernalia, involve the discharge of its administrative duties and so do not come
under the jurisdiction of this Court, which can review the decisions, orders and
rulings of the body only in cases of grave abuse of discretion committed by it in the
discharge of its quasi-judicial powers (Aratuc v. Commission on Elections, 88 SCRA
251; Guevara v. Commission on Elections, G.R. No. L-12596, July 31, 1958;
Filipinas Engineering Co. v. Ferrer, 135 SCRA 25).
9. As of July 25, 1987, and as the canvassing results stand, Rasul as of her proclamation as the
23rd Senator-elect, had a lead over Enrile of 1,910 votes, while Enrile had a lead over Sanchez of
73,034 with only 31,000 votes still to be canvassed (in three municipalities of Sulu and in 15
precincts of Lanao del Sur.). Said uncanvassed votes (31,000) are clearly not sufficient in number to
offset the 73,034 votes lead of Enrile over Sanchez, even if awarded to the latter. There is no need
to wait for the canvass of the votes from the 3 municipalities of Sulu and the 15 precincts in Lanao
del Sur, which still remains up to this late day a big question mark of when and how they will finally
get canvassed, assuming their integrity has been preserved. Candidate Juan Ponce Enrile is
therefore entitled to proclamation as the 24th senator-elect in the May 11, 1987 elections. Enrile's
petition against Rasul has been rendered moot.
ACCORDINGLY, the Petition in G.R. No. 79212 (Juan Ponce Enrile v. Commission on Election and
Augusto Sanchez) is hereby GRANTED and the decision of respondent Commission on Elections
promulgated on July 30, 1987 granting Sanchez' petition for recount is hereby SET ASIDE. The
respondent Comelec is hereby ordered to proclaim petitioner Juan Ponce Enrile as a duly elected
senator in the May 11, 1987 elections. The petitions in G.R. No. 78461 (Augusto S. Sanchez v.
Commission on Election) and G.R. No. 79146 (Juan Ponce Enrile v. Commission on Elections and
Santanina T. Rasul) are both DISMISSED. This decision shall be IMMEDIATELY EXECUTORY
upon its promulgation.

EN BANC

[G. R. No. 150312. July 18, 2002]

BAGO P. PASANDALAN, petitioner, vs. COMMISSION ON ELECTIONS

and BAI SALAMONA L. ASUM, respondents.
DECISION
CARPIO, J.:

A petition for declaration of failure of election must specifically allege the essential
grounds that would justify the exercise of this extraordinary remedy. Otherwise, the
Comelec can dismiss outright the petition for lack of merit. No grave abuse of discretion
can be attributed to the Comelec in such a case because the Comelec must exercise
with utmost circumspection the power to declare a failure of election to prevent
disenfranchising voters and frustrating the electorates will.

The Case
Before us is a petition for review on certiorari of the Resolution [1] of the Commission
on Elections en banc dated October 12, 2001 dismissing petitioner Bago P.
Pasandalans (Pasandalan for brevity) petition to declare a failure of election.
Pasandalan and private respondent Bai Salamona L. Asum (Asum for brevity) were
candidates for mayor in the Municipality of Lumbayanague, Lanao del Sur during the
May 14, 2001 elections.
On May 23, 2001, Pasandalan filed a petition [2] before public respondent
Commission on Elections (Comelec for brevity) seeking to nullify the election results in
Barangay Cabasaran (Precinct Nos. 9A, 10A, 11A and 12A), Barangay Deromoyod
(Precinct Nos. 24A, 25A and 26A), Lamin (Precinct Nos. 29A and 30A), Barangay Wago
(Precinct Nos. 46A, 47A and 48A), Barangay Meniros (Precinct Nos. 32A, 33A and
34A), Barangay Bualan (Precinct Nos. 6A, 7A and 8A) and Barangay Pantaon (Precinct
Nos. 38A and 39A), all of Lumbayanague, Lanao del Sur.
Petitioner alleged that on May 14, 2001, while voting was going on, some Cafgus
stationed near Sultan Gunting Elementary School indiscriminately fired their firearms
causing the voters to panic and leave the polling center without casting their
votes. Taking advantage of the confusion, supporters of Asum allegedly took the official
ballots, filled them up with the name of Asum and placed them inside the ballot
boxes. The incident allegedly marred the election results in Precinct Nos. 9A-12A, 24A26A and 29A-30A.

In Precinct Nos. 46A, 47 and 48A, the members of the Board of Election Inspectors
(BEI for brevity) allegedly failed to sign their initials at the back of several official ballots
and to remove the detachable coupons. The BEI members allegedly affixed their initials
only during the counting of votes.
In Precinct Nos. 6A-8A, 32A-34A and 38A-39A, Pasandalan claims that Asums
supporters, taking advantage of the fistfight between Asums nephew and the supporters
of candidate Norania Salo, grabbed the official ballots and filled them up with the name
of Asum.
Pasandalan contends that a technical examination of several official ballots from the
contested precincts would show that only a few persons wrote the entries.
On June 26, 2001, Asum filed an Answer denying Pasandalans allegation that the
volley of shots fired on May 14, 2001 disrupted the voting. Private respondent countered
that the gunshots were heard around 2:35 p.m. and not at the start of the voting. On
June 30, 2001, Asum was sworn into office and assumed the position of municipal
mayor of the Lumbayanague, Lanao del Sur.
On October 12, 2001, the Comelec issued a Resolution dismissing the petition for
lack of merit.[3]
Hence, this petition.

The Comelecs Ruling

The Comelec ruled that the power to declare a failure of election, being an
extraordinary remedy, could be exercised only in three instances: (1) the election is not
held; (2) the election is suspended; or (3) the election results in a failure to elect. The
third instance is understood in its literal sense, that is, nobody was elected.
The Comelec dismissed the petition because none of the grounds relied upon by
Pasandalan falls under any of the three instances justifying a declaration of failure of
election. First, the elections in the questioned precincts were held as
scheduled. Second, the gunshots heard during the casting of votes did not suspend the
election as the voting continued normally. Third, Asum was elected by a plurality of
votes.
The authenticity and integrity of the election returns were left undisturbed
throughout the preparation, transmission, custody and canvass of the
returns. Pasandalan alleges fraud and terrorism, in that there was massive substitution
of voters, firing of guns to frighten the voters, and failure of the BEI members to sign at
the back of some official ballots and to remove the detachable coupons. The Comelec
ruled that these allegations are better ventilated in an election contest.
The Comelec did not give credence to Pasandalans evidence in support of his
allegations of terrorism and fraud since the evidence consisted only of affidavits
executed by Pasandalans own poll watchers. The Comelec considered these affidavits

self-serving and insufficient to annul the results of the election. Thus, the Comelec
dismissed the petition for lack of merit.

The Issues
Pasandalan now assails the Comelecs dismissal of his petition, raising the following
issues:

1. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR

IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
IN DISMISSING THE PETITION IN SPA NO. 01-305 FOR ALLEGED LACK
OF MERIT;
2. WHETHER THE COMMISSION ON ELECTIONS COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN
NOT ANNULING THE ELECTION OR DECLARING A FAILURE OF
ELECTION IN THE SIXTEEN (16) QUESTIONED PRECINCTS;
3. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR
IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN NOT DECLARING AS ILLEGAL, NULL AND VOID AB
INITIO THE PROCLAMATION OF THE PRIVATE RESPONDENT AS THE
DULY ELECTED MAYOR OF LUMBAYANAGUE, LANAO DEL SUR IN THE
LAST MAY 14, 2001 REGULAR ELECTIONS AND MAY 30, 2001 SPECIAL
ELECTIONS.
[4]

The Courts Ruling

We rule that the petition is without merit. The Comelec correctly dismissed the
petition for declaration of failure of election because the irregularities alleged in the
petition should have been raised in an election protest, not in a petition to declare a
failure of election.
Under Republic Act No. 7166, otherwise known as The Synchronized Elections Law of
1991,[5] the Comelec en banc is empowered to declare a failure of election under Section 6 of
the Omnibus Election Code (B.P. Blg. 881). Section 6 of the Code prescribes the conditions for
the exercise of this power, thus:

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 closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the result of the
election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or
continuation of the election not held, suspended or which resulted in a failure
to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.
Based on the foregoing provision, three instances justify a declaration of failure of
election. These are:

(a) the election in any polling place has not been held on the date fixed on
account of force majeure, violence, terrorism, fraud or other analogous
causes;
(b) the election in any polling place has been suspended before the hour fixed
by law for the closing of the voting on account of force majeure, violence,
terrorism, fraud or other analogous causes; or
(c) after the voting and during the preparation and transmission of the election
returns or in the custody or canvass thereof, such election results in a failure
to elect on account of force majeure, violence, terrorism, fraud or other
analogous causes.
[6]

What is common in these three instances is the resulting failure to elect. [7] In the first
instance, no election is held while in the second, the election is suspended.[8] In the third
instance, circumstances attending the preparation, transmission, custody or canvas of
the election returns cause a failure to elect. The term failure to elect means nobody
emerged as a winner. [9]
Pasandalan asserts that the conditions for the declaration of failure of election are
present in this case. The volley of shots from high-powered firearms allegedly forced the
voters to scamper away from the polling place, paving the way for Asums supporters to
write the name of Asum on the ballots. The gunfire also frightened Pasandalans poll
watchers. The heavy firing allegedly suspended or prevented the holding of elections in
the contested precincts, resulting in failure to elect. The victory of Asum is thus put in
serious doubt.
We do not agree. Pasandalans allegations do not fall under any of the instances
that would justify the declaration of failure of election. The election was held in the 16
protested precincts as scheduled. At no point was the election in any of the precincts
suspended. Nor was there a failure to elect because of force majeure, violence,
terrorism, fraud or other analogous causes during the preparation, transmission,

custody and canvass of the election returns. The alleged terrorism was not of such
scale and prevalence to prevent the holding of the election or to cause its
suspension. In fact, the casting and counting of votes, the preparation, transmission and
canvassing of election returns and the proclamation of the winning candidate took place
in due course.
Courts exercise the power to declare a failure of election with deliberate caution so
as not to disenfranchise the electorate.[10] The fact alone that actual voting took place
already militates against Pasandalans cause. Also, Pasandalans allegations of terrorism
and fraud are not sufficient to warrant a nullification of the election in the absence of any
of the three instances justifying a declaration of failure of election. Terrorism may not be
invoked to declare a failure of election and to disenfranchise the greater number of the
electorate through the misdeeds of only a few,[11] absent any of the three instances
specified by law.
To warrant a declaration of failure of election on the ground of fraud, the fraud must
prevent or suspend the holding of an election, or mar fatally the preparation,
transmission, custody and canvass of the election returns. [12] The conditions for the
declaration of failure of election are stringent. Otherwise, elections will never end for
losers will always cry fraud and terrorism.[13]
The allegations of massive substitution of voters, multiple voting, and other electoral
anomalies should be resolved in a proper election protest[14] in the absence of any of the
three instances justifying a declaration of failure of election. In an election protest, the
election is not set aside, and there is only a revision or recount of the ballots cast to
determine the real winner.[15]
The nullification of elections or declaration of failure of elections is an extraordinary
remedy.[16] The party who seeks the nullification of an election has the burden of proving
entitlement to this remedy. It is not enough that a verified petition is filed. The
allegations in the petition must make out a prima facie case for the declaration of failure
of election, and convincing evidence must substantiate the allegations. [17]
In the instant case, it is apparent that the allegations do not constitute sufficient
grounds for the nullification of the election. Pasandalan even failed to substantiate his
allegations of terrorism and irregularities. His evidence consisted only of affidavits. Mere
affidavits are insufficient,[18] more so in this case since the affidavits were all executed by
Pasandalans own poll watchers. Factual findings of the Comelec are binding on this
Court.[19] Accordingly, the following findings of the Comelec in the instant case must be
respected:
xxx There was an allegation in the amended petition that while voting was taking place
in Sultan Gunting Elementary School, gunshots were heard causing the voters to
scamper for safety and leave the polling center without having cast their
votes. However, other than his bare allegation and the pre-typed affidavits of his
watchers, petitioner did not present substantial and convincing evidence to support his
claim. On the other hand, 1 Lt. Frederick Galang Pa of the 29 th Infantry Battalion
assigned in Lumbayanague categorically declared in his affidavit that despite the
gunshots which were heard at around 2:35 PM when the polls were about to close, the

voting continued normally. This statement was bolstered by the narrative report of
Urangutan Mamailao, Election Officer of Lumbayanague, on the conduct of the election
in said municipality. The report was spontaneously prepared when the incident
happened. Taken in the light of the presumption of regularity in the performance of
official functions, these two affidavits carry great weight. Third, the authenticity and
integrity of the election returns are left undisturbed throughout the preparation,
transmission, custody and canvass thereof. There was no allegation, much less proof
that the sanctity of the election returns was defiled.

xxx
A thorough examination of the affidavits reveals that they suffer from both
extrinsic and intrinsic invalidity. The form and the contents of the affidavits
were pre-typed, and all the affiants had to do was to fill-up the blank spaces
for their names and precinct assignments. This clearly shows that some other
person prepared the affidavits and it is doubtful whether the affiants
understood the contents thereof before they signed them.
Also worth noting is the fact that the contents of the affidavits are identical. It
is highly questionable why different persons have exactly the same
observation of different incidents. Even persons confronted with the same
occurrence would have different observations of the same incident because
human perception is essentially affected by several factors like the senses,
mental condition, personal disposition, environment, etc.
Moreover, the affidavits contain inconsistent statements and incredible
allegations which bolster the conclusion that they were tailored to suit the
needs of the petitioner.For example, the joint-affidavit of Badjomura Calauto
and Macaruog Ampuan states that they were in Barangay Cabasaran during
the May 14 election when they saw the men of respondent fill-up the ballots in
Precinct Nos. 29A-30A of Barangay Lamin. The venue of voting for Barangay
Cabasaran was Sultan Gunting Central Elementary School while that of
Barangay Lamin was Lamin Primary School. How they were able to witness
said incident when they were miles away from where it happened is
mystifying. Besides, this is not the proper forum to challenge illegal
voters. Even at the precinct level, petitioners watchers are empowered to
question any irregularity which they think may have been committed by any
person or to challenge the capacity of any person offering to vote. Failing to
avail himself of this remedy, petitioner cannot now pass the burden to
innocent voters by calling for the annulment of the results of a validly held
election.
[20]

Pasandalan bewails the Comelecs dismissal of his petition without first conducting a
technical examination of the questioned precincts. Pasandalan claims that had the
Comelec made a technical examination of the questioned precincts, the Comelec would
have discovered massive substitution of voters, terrorism, violence, threats, coercion,
intimidation and other electoral frauds, resulting in a failure of election. Pasandalan
insists that a technical examination in this case would have been proper as inTypoco,
Jr. v. Commission on Elections,[21] which is also a case of failure of election.
The Comelec is not mandated to conduct a technical examination before it
dismisses a petition for nullification of election when the petition is, on its face, without
merit. In Typoco, petitioner Typoco buttressed his petition with independent evidence
that compelled the Comelec to conduct a technical examination of the questioned
returns.Typoco filed a Motion to Admit Evidence to prove that a substantial number of
election returns were manufactured. Typoco claimed that the returns were prepared by
only one person based on the report of Francisco S. Cruz, a licensed examiner of
questioned documents, who examined copies of the election returns of Lakas-NUCD. In
the present case, Pasandalan failed to attach independent and objective evidence other
than the self-serving affidavits of his own poll watchers.
In Mitmug v. Commission on Elections,[22] we ruled that the Comelec could dismiss
outright a petition for nullification of election if it is plainly groundless and the allegations
therein could be better ventilated in an election protest. In Banaga, Jr. v. Commission
on Elections,[23] we reiterated this doctrine, thus -

Finally, petitioner claims that public respondent gravely abused its discretion
when it dismissed his petition motu propio. However, the fact that a verified
petition has been filed does not mean that a hearing on the case should first
be held before Comelec can act on it. The petition to declare a failure of
election and/or to annul election results must show on its face that the
conditions necessary to declare a failure to elect are present. In their absence,
the petition must be denied outright. Public respondent had no recourse but to
dismiss the petition. Nor may petitioner now complain of denial of due
process, on this score, for his failure to properly file an election protest. The
Comelec can only rule on what was filed before it. It committed no grave
abuse of discretion in dismissing his petition to declare failure of elections
and/or for annulment of elections for being groundless, hence without merit.
Clearly, the fact that a verified petition is filed with the Comelec does not necessarily
mean that a technical examination or a hearing on the case should be conducted first
before the Comelec can act on the petition. There is no grave abuse of discretion if the
Comelec dismisses the petition even without a technical examination or hearing if the
petition fails to show on its face the existence of any of the three instances required by
law to declare a failure of election. The Comelec in this case correctly dismissed the
petition.

Pasandalan believes that notwithstanding the fact that actual voting took place in
the questioned precincts, the election in this case, just like in Basher v. Commission on
Elections,[24] was illegal, irregular, and void.[25] Citing Basher, Pasandalan argues that the
peculiar set of facts in this case do not merely show a failure of election but the absence
of a valid electoral exercise.[26]
The fact that an election is actually held prevents as a rule a declaration of failure of
election. It is only when the election is attended by patent and massive irregularities and
illegalities that this Court will annul the election. Basher is an example of such a case.
In Basher, after a series of failed elections in Barangay Maidan, Municipality of
Tugaya, Lanao del Sur during the 1997 barangay elections, the election was reset to
August 30, 1997. Due to the prevailing tension in the locality, the voting started only at
around 9 p.m. and lasted until the early morning of the following day. Basher filed a
petition for the nullification of election. The Comelec ruled against a failure of election
because actual voting had taken place. However, we overturned the Comelec ruling
because the election was unauthorized and invalid. The electorate was not given
sufficient notice that the election would push through after 9 p.m. of the same
day.Moreover, the voting did not comply with the procedure laid down by law and by
Comelec rules as to the time and place of voting. Thus, we held that the election was
illegal, irregular and void. Consequently, we annulled the proclamation of the winning
candidate and ordered a special election.
Basher does not apply to this case. Unlike in Basher, the election in this case
proceeded as scheduled, in accordance with law and Comelec rules. None of the
extreme circumstances that marred the election in Basher is present in this case. We
have ruled that there is failure of election only if the will of the electorate is muted and
cannot be ascertained.[27] If the will of the people is determinable, the same must be
respected as much as possible.[28] In this case, the will of the electorate is readily
discernible. Pasandalan should have filed an election protest to substantiate his
allegations of electoral anomalies, not a petition to declare a failure of election.
WHEREFORE, the instant petition is DISMISSED. The assailed Resolution of public
respondent Comelec is AFFIRMED. Costs against petitioner.
SO ORDERED.

EN BANC

[G.R. No. 136191. November 29, 1999]

JESUS O. TYPOCO, JR., petitioner, vs. COMMISSION ON ELECTIONS

(COMELEC)
EN
BANC,
and
JESUS
EMMANUEL
PIMENTEL,respondents.
DECISION
GONZAGA_REYES, J.:

Before us is a petition for certiorari and prohibition to annul and set aside the
resolution of the Commission on Elections (COMELEC) En Banc dated October 12,
1998 which dismissed herein petitioner Jesus Typoco, Jr.s (TYPOCO) petition for
Annulment of Election or Election Results and/or Declaration of Failure of Elections
docketed as SPA No. 98-413.
The factual antecedents insofar as pertinent to the instant petition are as follows:
TYPOCO and private respondent Jesus Pimentel (PIMENTEL) were both
candidates for the position of Governor in Camarines Norte during the May 11, 1998
elections. On May 22, 1998, TYPOCO together with Winifredo Oco (OCO), a
candidate for the position of Congressman of the Lone District of Camarines Norte
filed a Joint Appeal before the COMELEC docketed as SPC-No. 98-133. TYPOCO
and OCO questioned therein the ruling of the Provincial Board of Canvassers of
Camarines Norte which included in the canvass of votes the Certificate of Canvass of
the Municipality of Labo, Camarines Norte. TYPOCO also filed a Motion to Admit
Evidence to Prove That a Substantial Number of Election Returns Were Manufactured
as They Were Prepared by One Person based on the report of one Francisco S. Cruz, a
Licensed Examiner of Questioned Document, who examined copies of election
returns of the LAKAS-NUCD.
On June 4, 1998, COMELEC (Second Division) issued an Order dismissing the
Joint Appeal. Thereafter, TYPOCO filed a Motion for Reconsideration reiterating his
motion to admit evidence to prove the manufacturing and/or spurious character of the
questioned returns which were allegedly prepared in group by only one person and
which will materially affect the results of the election for the position of Governor.
In the meantime, on June 10, 1998, TYPOCO and OCO filed with the
COMELEC En Banc a separate petition for Annulment of Election or Election Results

and/or Declaration of Failure of Elections in several precincts, docketed as SPA No.

98-413, subject of the instant petition. The petition alleged that massive fraud and
irregularities attended the preparation of the election returns considering that upon
technical examination, 305 election returns were found to have been prepared in
group by one person.
On July 15, 1998, the COMELEC En Banc issued an Order directing the Voters
Identification Division of the Commissions Election Records and Statistics
Department (ERSD) to examine the COMELEC copies of the 305 election returns
questioned by TYPOCO.
On August 12, 1998, the COMELECs ERSD Voters Identification Division
submitted its Questioned Document Report to the COMELEC En Banc on the results
of its technical examination of the questioned election returns. The report disclosed,
among others, that the handwritten entries on 278 COMELEC copies of election
returns particularly under the columns Congressman/Governor/Vice-Governor
Nickname or Stage Name, were written by one and the same person in groups.[1]
On August 31, 1998, the COMELEC En Banc issued the resolution
denying petitioners motion for reconsideration in SPC No. 98-133 on the ground that
an election protest is the proper remedy.
TYPOCO then filed a petition for certiorari and prohibition under Rule 65 with
prayer for the issuance of a temporary restraining order and/or writ of preliminary
injunction assailing the Order dated June 4, 1998 and the Resolution dated August 31,
1998, respectively issued in SPC No. 98-133 by the COMELEC (Second Division)
and the COMELEC En Banc.[2] In a resolution dated September 22, 1998, this Court
dismissed the petition finding no grave abuse of discretion on the part of respondent
COMELEC in issuing the aforesaid assailed orders.TYPOCOs motion for
reconsideration was likewise denied by this Court with finality on September 29,
1998.
On October 12, 1998, the COMELEC En Banc promulgated a resolution in SPA
98-413, dismissing TYPOCOs petition for the Declaration of Failure of Elections
and/or Annulment of Elections in Camarines Norte for lack of merit, thus:
The grounds cited by petitioners do not fall under any of the instances enumerated in
Sec. 6 of the Omnibus Election Code.
In Mitmug vs. Commission on Elections, 230 SCRA 54, the Supreme Court ruled that
before the Comelec can act on a verified petition seeking to declare a failure of
elections, at least two (2) conditions must concur: (a) no voting has taken place in the
precincts on the date fixed by law, or even if there was voting, the election
nevertheless resulted in failure to elect; and (b) the votes that were not cast would

affect the result of the election. From the allegations of the petition in the instant
cases, it is clear that an election took place and that it did not result in a failure to
elect. In fact, by separate resolution, the Commission has authorized the provincial
board of canvassers to proclaim the winning candidates and this as been implemented.
WHEREFORE, the Commission hereby DISMISSES the petition in each of the above
cases, for lack of merit.[3]
Hence, the instant petition on the grounds that the COMELEC En Banc gravely
abused its discretion as follows: 1. in holding that the grounds cited by TYPOCO do
not fall under any of the instances enumerated in Section 6 of the Omnibus Election
Code; 2. in refusing to annul the election or the election results or to declare a failure
of election despite the fact that massive fraud and irregularities attended the
preparation of the election returns; 3. in failing to proclaim TYPOCO as the winning
candidate for Governor; 4. in failing to annul the proclamation of PIMENTEL which
is null and void from the beginning; 5. in ruling that an election protest is the proper
remedy and not an annulment of the election or election results and/or declaration of
failure of elections.[4]
Simply stated, did the COMELEC commit grave abuse of discretion in not
declaring a failure of elections for the position of Governor in Camarines Norte in the
May 11, 1998 elections?
In a Manifestation and Motion (In Lieu of Comment) filed by the Office of the
Solicitor General (OSG), the latter joins TYPOCOs prayer for affirmative relief. The
OSG explains thus:
13. The petition a quo (SPA No. 98-413) specifically prayed for annulment of election
returns and/or election results in the protested precincts where massive fraud and
irregularities were allegedly committed in the preparation of the election returns
which, upon technical examination of their authentic copies, were found to have been
prepared in groups by one person (Petition, Annex A, p.2).
14. On this score, it should be stressed that election returns are prepared separately
and independently by the Board of Election Inspectors assigned in each and every
precinct. Hence, uniformity in the handwritten entries in the election returns
emanating from different electoral precincts, as in this case speaks only of one thing -- THE ELECTION RETURNS WERE FABRICATED OR TAMPERED WITH.
Here, the COMELEC itself, through its own Voters Identification Department,
certified that out of the 305 election returns in the 12 municipalities of Camarines
Norte, 278 or 91.14% thereof were found to have been written by one person which
fact lucidly speaks of massive fraud in the preparation of election returns.

15. Precisely, massive fraud committed after the voting and during the preparation of
the election returns resulting in a failure to elect, is a ground for annulment of election
under Section 6 of the Omnibus Election Code. As such therefore, the case at bar falls
within the jurisdiction of COMELEC.
x x x x x x x x x.
18. At any rate, there is merit to petitioners claim that the votes in the subject election
returns, if correctly appreciated, will materially affect the results of the election for
Governor, i.e.,
TYPOCO PIMENTEL
Votes per PBC Canvass 53,454 64,358
Less: Votes obtained from
Fraudulent Returns 11,253 27,060
Difference 42,201 37,325
Vote Lead of Petitioner 4,876[5]
The authority of the COMELEC to declare a failure of elections is derived from
Section 4 of Republic Act No. 7166, otherwise known as, The Synchronized Elections
Law of 1991, which provides that the COMELEC sitting En Banc by a majority vote
of its members may decide, among others, the declaration of failure of election and
the calling of special elections as provided in Section 6 of the Omnibus Election
Code. Said Section 6, in turn, provides as follows:
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 the law for the closing of
the voting, or after the voting and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such election results in a failure
to elect, and in any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of verified petition by any
interested party and after due notice and hearing, call for the holding or continuation
of the election not held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.

The same provision is reiterated under Section 2, Rule 26 of the Revised

COMELEC Rules.
Based on the foregoing laws, the instant petition must fail because the allegations
therein do not justify a declaration of failure of election.
The COMELEC correctly pointed out that in the case of Mitmug vs. Commission
on Elections[6], this Court held that before COMELEC can act on a verified petition
seeking to declare a failure of election, two (2) conditions must concur: first, no
voting has taken place in the precincts concerned on the date fixed by law or, even if
there was voting, the election nevertheless resulted in a failure to elect; and second,
the votes cast would affect the result of the election. In Loong vs. Commission on
Elections[7], this Court added that the cause of such failure of election should have
been any of the following: force majeure, violence, terrorism, fraud of other
analogous cases. Further, in Borja, Jr. vs. Commission on Elections[8], we stated that:
The COMELEC can call for the holding or continuation of election by reason of
failure of election only when the election is not held, is suspended or results in a
failure to elect. The latter phrase, in turn, must be understood in its literal sense, which
is nobody was elected.
Clearly then, there are only three (3) instances where a failure of election may be
declared, namely: (a) the election in any polling place has not been held on the date
fixed on account of force majeure, violence, terrorism, fraud, or other analogous
causes; (b) the election in any polling place had been suspended before the hour fixed
by law for the closing of the voting on account of force majeure, violence, terrorism,
fraud or other analogous causes; (c) after the voting and during the preparation and
transmission of the election returns or in the custody or canvass thereof, such election
results in a failure to elect on account of force majeure, violence, terrorism, fraud, or
other analogous causes.[9] In all instances there must have been failure to elect; this is
obvious in the first scenario where the election was not held and the second where the
election was suspended. As to the third scenario, the preparation and transmission of
the election returns which give rise to the consequence of failure to elect must as
aforesaid be literally interpreted to mean that nobody emerged as a winner.
None of these circumstances is present in the case at bar. While the OSG joins
TYPOCO in pinpointing anomalies in the preparation of the election returns due to
the uniformity of the handwriting in the same, implying that fraud was committed at
that stage, the fact is that the casting and counting of votes proceeded up to the
proclamation of the winning candidate thus precluding the declaration of a failure of
election. While fraud is a ground to declare a failure of election, the commission of
fraud must be such that it prevented or suspended the holding of an election including
the preparation and transmission of the election returns.[10]

It can thus readily be seen that the ground invoked by TYPOCO is not proper in a
declaration of failure of election. TYPOCOs relief was for COMELEC to order a
recount of the votes cast, on account of the falsified election returns, which is properly
the subject of an election contest.[11]
The COMELEC, therefore, had no choice but to dismiss TYPOCOs petition in
accordance with clear provisions of the law and jurisprudence.
WHEREFORE, finding no grave abuse of discretion committed by public
respondent Commission on Elections, the petition is DISMISSED and its
Resolution En Banc of October12,1998 dismissing the petition before it on the ground
that the allegations therein do not justify a declaration of failure of election is
AFFIRMED.
SO ORDERED.

EN BANC
[G.R. No. 139028. April 12, 2000]
HADJI RASUL BATADOR BASHER, petitioner, vs. COMMISSION ON
ELECTIONS and ABULKAIR AMPATUA, respondents.
DECISION
PANGANIBAN, J.:
An election must be held at the place, date and time prescribed by law.
Likewise, its suspension or postponement must comply with legal
requirements. Otherwise, it is irregular and void. h Y
The Case
Petitioner assails before us the June 8, 1999 Resolution of the Commission
on Elections (Comelec) in SPA Case No. 97-276 which dismissed a Petition
to Declare a Failure of Election and to Call Special Election in Precinct No. 12,
Barangay Maidan, Tugaya, Lanao del Sur. The assailed Resolution disposed
as follows: Jksm
[1]

[2]

"In view of the foregoing considerations, We he[re]by hold that the

special elections in Barangay Maidan, Tugaya, Lanao del Sur on
August 30, 1997 did not fail. The result thereof must therefore be
accorded respect.
"WHEREFORE, premises considered, the Commission En
Banc RESOLVES to DISMISS the petition for lack of merit."

[3]

The Facts
Petitioner Hadji Rasul Batador Basher and Private Respondent Abulkair
Ampatua were both candidates for the position of Punong Barangay in
Barangay Maidan, Tugaya, Lanao del Sur during the May 12, 1997 barangay
election. The election was declared a failure and a special one was set for
June 12, 1997. Again, the election failed and was reset to August 30,
1997. Chief
According to the Comelec, the voting started only around 9:00 p.m. on August
30, 1997 because of the prevailing tension in the said locality. Election Officer

Diana DatuImam reported that she was allegedly advised by some religious
leaders not to proceed with the election because "it might trigger bloodshed."
She also claimed that the town mayor, "being too hysterical, yelled and
threatened me to declare [a] failure of election in Maidan." Subsequently, the
armed followers of the mayor pointed their guns at her and her military
escorts, who responded in like manner towards the former. The parties were
then pacified at the PNP headquarters. With the arrival of additional troops,
the election officer proceeded to Maidan to conduct the election starting at
9:00 p.m. until the early morning of the following day. The holding of the
election at that particular time was allegedly announced "over the mosque."
[4]

The tally sheet for the said "election" showed the following results: private
respondent 250 votes; petitioner 15 votes; and Baulo Abdul Razul, a third
candidate 10 votes. Private respondent was proclaimed winner.
[5]

Petitioner then filed a Petition before the Comelec praying that the election be
declared a failure. Alleging that no election was conducted in the place and at
the time prescribed by law, petitioner narrated that there was a dispute that
day (August 30, 1997) among the candidates regarding the venue of the
election in the lone voting precinct of the barangay. In order to avoid
bloodshed, they ultimately agreed that no election would be conducted.
Accordingly, the election officer turned over for safekeeping the ballot box
containing election paraphernalia to the acting station commander (OIC) of
the Philippine National Police (PNP). The following day, petitioner and the
third candidate were surprised to learn that the election officer had directed
the Board of Election Tellers to conduct the election and to fill up the election
returns and certificates of canvass on the night of August 30, 1997 at the
residence of the former mayor. Petitioner also stated that no announcement to
hold the election at the former mayors house that night was ever made.
[6]

As earlier stated, the Comelec dismissed the Petition. Hence, this recourse to
this Court.
[7]

Ruling of the Comelec

The Comelec ruled against a failure of election because the two conditions
laid down in Mitmug v. Comelec were not established. It held that the
"election was conducted on the scheduled date. The precinct functioned.
Actual voting took place, and it resulted not in a failure to elect."
[8]

[9]

In justifying the balloting at the dead of night, the poll body cited Section 22,
Article IV of Comelec Resolution 2971, which provided in part that "[i]f at three

oclock, there are still voters within thirty meters in front of the polling place
who have not cast their votes, the voting shall continue to allow said voters to
cast their votes without interruption. x x x" The Comelec then went on to state
that "experience had shown that even when there is a long delay in the
commencement of the voting, voters continue to stay within the area of the
polling place."
[10]

Issue
Petitioner submits the following questions for the consideration of the Court:
"1. Whether or not the election held at around 10:00 oclock in the
evening of August 30, 1997 after the Acting Election Officer had
verbally declared or announced a failure of election in Precinct
No. 12, Barangay Maidan, Tugaya, Lanao del Sur is contrary to
law, rule and jurisprudence;
"2. Whether or not the election held at the residence of an Exmayor far from the designated Polling Place of Precinct No. 12,
Barangay Maidan, Tugaya, Lanao del Sur is legal or valid;
"3. Whether or not the proclamation of the private respondent as
the duly elected Punong Barangay of Barangay Maidan and the
seven (7) Barangay Kagawads is illegal, null and void ab initio."

[11]

In the main, the crucial question that needs to be addressed is whether the
"election" held on the date, at the time and in the place other than those
officially designated by the law and by the Comelec was valid. Esm
The Courts Ruling
The Petition is meritorious.
Main Issue: Validity of the Special Election
Citing Mitmug v. Comelec, the Comelec points out that a failure of election
requires the concurrence of two conditions, namely (1) no voting took place in
the precinct or precincts on the date fixed by law, or even if there was voting,
the election resulted in a failure to elect; and (2) the votes not cast would have
affected the result of the election. It ruled that these requirements were not
met. Esmsc
[12]

We do not agree. The peculiar set of facts in the present case show not
merely a failure of election but the absence of a valid electoral exercise.
Otherwise stated, the disputed "election" was illegal, irregular and void. Esmmis
Election Situs Was Illegal
First, the place where the voting was conducted was illegal. Section 42 of the
Omnibus Election Code provides that "[t]he chairman of the board of election
tellers shall designate the public school or any other public building within the
barangay to be used as polling place in case the barangay has one election
precinct x x x." Petitioner, citing an Affidavit supposedly executed by the
members of the Board of Election Tellers (BET) for Barangay Maidan, alleges
that the election of officials for said barangay was held at the residence of
former Mayor Alang Sagusara Pukunun, which is located at Barangay
Pandarianao, instead of the officially designated polling precinct at Cagayan
Elementary School. If this allegation were true, such "election" cannot be
valid, as it was not held within the barangay of the officials who were being
elected. On the other hand, it is admitted that there was a public school or
building in Barangay Maidan -- the Cagayan Elementary School, which was
the earlier validly designated voting center.
[13]

While the BET members later repudiated their Affidavit, they could only claim
that the election was held "in Barangay Maidan." They, however, failed to
specify the exact venue. In fact, to this date, even the respondents have failed
to disclose where exactly the voting was conducted. This glaring omission
definitely raises serious questions on whether the election was indeed held in
a place allowed by law. Esmso
[14]

Voting Time Was Likewise Irregular

Second, as to the time for voting, the law provides that "[t]he casting of votes
shall start at seven o'clock in the morning and shall end at three o'clock in the
afternoon, except when there are voters present within thirty meters in front of
the polling place who have not yet cast their votes, in which case the voting
shall continue but only to allow said voters to cast their votes without
interruption." Section 22, Article IV of Comelec Resolution No. 2971 also
specifies that the voting hours shall start promptly at 7:00 a.m. and end at
3:00 p.m. of the same day. Msesm
[15]

However, the "election" for Barangay Maidan officials was supposed to have
been held after 9:00 p.m. of August 30, 1997 until the wee hours of the
following day. Certainly, such schedule was not in accordance with law or the

Comelec Rules. The Comelec erred in relying on the second sentence of

Section 22, Article IV of Comelec Resolution 2971, which states that "[i]f at
three o'clock [in the afternoon], there are still voters within thirty meters in front
of the polling place who have not cast their votes, the voting shall continue to
allow said voters to cast their votes without interruption." This sentence
presupposes that the election commenced during the official time and is
simply continued beyond 3:00 p.m. in order to accommodate voters who are
within thirty meters of the polling place, already waiting for their turn to cast
their votes. This is clearly the meaning and intent of the word continue -"to go on in a specified course of action or condition." The action or condition
already subsists and is allowed to go on. Otherwise, the law should have
stated instead that "the voting may also start even beyond 3:00 p.m. if there
are voters within thirty meters in front of the polling place."Exsm
[16]

The strained interpretation espoused by the Comelec encourages the conduct

of clandestine "elections," for it virtually authorizes the holding of elections
beyond normal hours, even at midnight when circumstances could be more
threatening and conducive to unlawful activities. On a doctrinal basis, such
nocturnal electoral practice discourages the people's exercise of their
fundamental right of suffrage, by exposing them to the dangers concomitant to
the dead of night, especially in far-flung barangays constantly threatened with
rebel and military gunfires. Kyle
Election Date Was Invalid
Third, the Comelec scheduled the special election on August 30, 1997. Any
suspension or postponement of an election is governed by Section 2 of RA
6679, which states that "[w]hen for any serious cause such as rebellion,
insurrection, violence, terrorism, loss or destruction of election paraphernalia,
and any analogous causes of such nature that the holding of a free, orderly
and honest election should become impossible in any barangay, the
Commission on Election motu proprio or upon sworn petition of ten (10)
registered voters of a barangay, after summary proceedings of the existence
of such grounds, shall suspend or postpone the election therein to a date
reasonably close to the date of the election that is not held or is suspended or
postponed, or which resulted in a failure to elect, but not later than thirty (30)
days after the cessation of the cause for such suspension or postponement of
the election or failure to elect, and in all cases not later than ninety (90) days
from the date of the original election." Kycalr
[17]

Election Officer Diana Datu-Imam of Tugaya, Lanao del Sur practically

postponed the election in Barangay Maidan from the official original schedule

of 7:00 a.m. to 3:00 p.m. of August 30, 1997 to 10:00 p.m. of August 30, 1997
until the early morning of August 31, 1997. She attempted to justify her
postponement of the election by citing threats of violence and bloodshed in
the said barangay. Allegedly because of the tension created by armed escorts
of the municipal mayor and the military, Datu-Imam declared a failure of
election in order "to ease their aggression." However, as election officer, she
has no authority to declare a failure of election. Indeed, only the Comelec
itself has legal authority to exercise such awesome power. An election officer
alone, or even with the agreement of the candidates, cannot validly postpone
or suspend the elections. Calrky
Election Postponement Was Invalid
Fourth, Datu-Imam did not follow the procedure laid down by law for election
postponement or suspension or the declaration of a failure of election. She
narrated the circumstances surrounding her declaration as follows:
[18]

"When I returned to [as]certain the situation in Maidan, the Mayor,

being too hysterical, yelled and threatened me to declare [a]
failure of elections in Maidan. When I insisted to personally
confirm the probable cause of bloodshed (at Maidan), his armed
followers/escorts pointed their guns to me and my escorts.
Likewise my military escorts pointed their guns to the mayor and
his men 'Man to Man'. The Datus and religious leaders pacified us
at the PNP Headquarters.
"After a couple of hours, the military officers and I agreed to adapt
another strategy just to pursue with the elections in Maidan [by]
hook or by crook. Considering that they forcibly took away from us
the ballot box containing paraphernalia of Maidan, I didn't have
any recourse but give them. I turned-over the ballot box to the
Acting Chief of Police, Malik Bantuas with proper receipt, taking
away from the box the CEF 2 & 2-A, declaring verbally a failure of
elections in Maidan just to ease their aggression and so that we
could pull-out of the place freely."
It clearly appears from the very report of Datu-Imam to the Comelec that she
did not conduct any proceeding, summary or otherwise, to find out whether
any of the legal grounds for the suspension or postponement or the
declaration of failure of the election actually existed in the barangay
concerned. Mesm

Notice Was Irregular

Finally and very significantly, the electorate was not given ample notice of the
exact schedule and venue of the election. The election officer herself relates:

[19]

"When the tension was slightly alleviated, I directed the military

personnel to pull-out of the Municipio and withdrew to a nearby
Barangay (for safety) where some of the militaries (sic) were
deployed. After planning and coordinating with the Batallion (sic)
Commander, we waited for the additional troups (sic) that arrived
at around 8:30 in the evening. At the stroke of 9:00 o'clock, we
started for Maidan via the national Highway thru the Municipality
of Balindong and others thru a short-cut way (sic) eastward of
Tugaya. Utilizing the election paraphernalia earlier shipped by the
Commission as I have requested (sic) and a ballot box from the
PES, we went on with the election (after announcing it over the
mosque) peacefully and orderly despite the tiredness (sic) and
exhaustion felt by the people the whole day waiting/expecting for
the election as I have assured them earlier (sic). x x x"
As can be gleaned easily from the above report, the electorate of Barangay
Maidan was not given due notice that the election would push through after
9:00 p.m. that same day. Apparently, the election officer's decision to hold the
election on the night of August 30, 1997 was precipitate. Only after additional
military troops had arrived at their site in a nearby barangay about 8:30 p.m.
did the election officers proceed to Barangay Maidan. Arriving at Maidan, they
allegedly proceeded to conduct the election "after announcing it over the
mosque."
Such abbreviated announcement "over the mosque" at such late hour did
NOT constitute sufficient notice to the electorate. Consequently, not the entire
electorate or even a respectable number could have known of the activity and
actually participated therein or voluntarily and discerningly chosen not to have
done so. Slx
Indeed, the Court in Hassan v. Comelec held that the notice given on the
afternoon of the election day resetting the election to the following day and
transferring its venue was "too short." We said that "[t]o require the voters to
come to the polls on such short notice was highly impracticable. x x x It is
essential to the validity of the election that the voters have notice in some
form, either actual or constructive, of the time, place and purpose
[20]

thereof. The time for holding it must be authoritatively designated in

advance."
[21]

[22]

In the case at bar, the announcement was made only minutes before the
supposed voting. If one-day notice was held to be insufficient in Hassan, the
much shorter notice in the present case should all the more be declared
wanting. It should in fact be equated with "no notice." Scslx
In sum, the "election" supposedly held for officials of Barangay Maidan cannot
be clothed with any form of validity. It was clearly unauthorized and invalid. It
had no legal leg to stand on. Not only did the suspension/postponement not
comply with the procedure laid down by law and the Comelec Rules, neither
was there sufficient notice of the time and date when and the place where it
would actually be conducted. It was thus as if no election was held at all.
Hence, its results could not determine the winning punong barangay. Slxsc
WHEREFORE, the Petition is hereby GRANTED and the assailed
Resolution SET ASIDE. The proclamation of private respondent as punong
barangay is hereby declaredVOID. Respondent Comelec is ORDERED to
conduct a special election for punong barangay of Maidan, Tugaya, Lanao del
Sur as soon as possible. No pronouncement as to costs. Slxmis
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 106270-73 February 10, 1994

SULTAN MOHAMAD L. MITMUG, petitioner,
vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF LUMBA-BAYABAO,
LANAO DEL SUR, and DATU GAMBAI DAGALANGIT, respondents.
Pimentel, Apostol, Layosa & Sibayan Law Office for petitioner.
Brillantes, Nachura, Navarro & Arcilla for private respondent.

BELLOSILLO, J.:
The turnout of voters during the 11 May 1992 election in Lumba-Bayabao, Lanao del Sur, was
abnormally low. As a result, several petitions were filed seeking the declaration of failure of election
in precincts where less than 25% of the electorate managed to cast their votes. But a special
election was ordered in precincts where no voting actually took place. The Commission on Elections
(COMELEC) ruled that for as long as the precincts functioned and conducted actual voting during
election day, low voter turnout would not justify a declaration of failure of election. We are now called
upon to review this ruling.
Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI DAGALANGIT
were among the candidates for the mayoralty position of Lumba-Bayabao during the 11 may 1992
election. There were sixty-seven (67) precincts in the municipality.
As was heretofore stated, voter turnout was rather low, particularly in forty-nine (49) precincts where
the average voter turnout was 22.26%, i.e., only 2,330 out of 9,830 registered voters therein cast
their votes. Five (5) of these precincts did not conduct actual voting at all. 1
Consequently, COMELEC ordered the holding of a special election on 30 May 1992 in the five (5)
precincts which failed to function during election day. On 30 July 1992 another special election was
held for a sixth precinct. 2
In the interim, petitioner filed a petition seeking the annulment of the special election conducted on
30 May 1992 alleging various irregularities such as the alteration, tampering and substitution of
ballots. But on 13 July 1992, COMELEC considered the petition moot since the votes in the subject
precincts were already counted. 3
Other petitions seeking the declaration of failure of election in some or all precincts of LumbaBayabao were also filed with COMELEC by other mayoralty candidates, to wit:

1. SPA No. 92-324: On 6 June 1992, private respondent Datu Gamba Dagalangit filed an urgent
petition praying for the holding of a special election in Precinct No. 22-A alleging therein that when
the ballot box was opened, ballots were already torn to pieces. On 14 July 1992, the petition was
granted and a special election for Precinct No. 22-A was set for 25 July 1992. 4
2. SPC No. 92-336: On 16 June 19992, Datu Elias Abdusalam, another mayoralty candidate, filed a
petition to declare failure of election in twenty-nine (29) more precincts as a result of alleged
tampering of ballots 5 and clustering of precincts. 6 On 16 July 1992, the petition was dismissed.
COMELEC ruled that there must be a situation where there is absolute inability to vote before a failure of
election can be declared. 7 Since voting was actually conducted in the contested precincts, there was no
basis for the petition.

3. SPA No 92-368: On 20 June 1992, private respondent filed another petition, this time seeking to
exclude from the counting the ballots cast in six (6) precincts on the ground that the integrity of the
ballot boxes therein was violated. 8Again, on 14 July 1992, COMELEC considered the petition moot, as
the issue raised therein was related to that of SPA No. 92-311 which on 9 July 1992 was already set
aside as moot. 9

4. SPA No. 92-347: On 1 July 1992, Datu Bagato Khalid Lonta, a fourth mayoralty candidate, filed a
petition which in the main sought the declaration of failure of election in all sixty-seven (67) precincts
of
Lumba-Bayabao, Lanao del Sur, on the ground of massive disenfranchisement of voters. 10 On 9 July
1992, COMELEC dismissed the petition, ruling that the allegations therein did not support a case of
failure of election. 11

On 8 July 1992, petitioner filed a motion to intervene in these four (4) petitions. 12 But COMELEC
treated the same as a motion for reconsideration and promptly denied it considering that under the
COMELEC Rules of Procedure such motion was a prohibited pleading. 13

Thereafter, a new board of Election Inspectors was formed to conduct the special election set for 25
July 1992. Petitioner impugned the creation of this Board. Nevertheless, on 30 July 1992, the new
Board convened and began the canvassing of votes. Finally, on 31 July 1992, private respondent
was proclaimed the duly elected Mayor of Lumba-Bayabao, Lanao del Sur.
On 3 August 1992, petitioner instituted the instant proceedings seeking the declaration of failure of
election in forty-nine (49) precincts where less than a quarter of the electorate were able to cast their
votes. He also prayed for the issuance of a temporary restraining order to enjoin private respondent
from assuming office.
On 10 August 1992, petitioner lodged an election protest with the Regional trial Court of Lanao del
Sur disputing the result not only of some but all the precincts of Lumba-Bayabao, del Sur. 14
Respondents, on the other hand, assert that with the filing of an election protest, petitioner is already
deemed to have abandoned the instant petition.
It may be noted that when petitioner filed his election protest with the Regional Trial Court of Lanao
del Sur, he informed the trial court of the pendency of these proceedings. Paragraph 3 of his protest
states "[T]hat on August 3, 1992, your protestant filed a Petition for Certiorari with the
Supreme Court . . . docketed as G.R. No. 106270 assailing the validity of the proclamation of the
herein protestee. . . ." 15 Evidently, petitioner did not intend to abandon his recourse with this Court. On
the contrary, he intended to pursue it. Where only an election protest ex abundante ad cautela is filed, the
Court retains jurisdiction to hear the petition seeking to annul an election. 16

The main issue is whether respondent COMELEC acted with grave abuse of discretion amounting to
lack of jurisdiction in denying motu proprio and without due notice and hearing the petitions seeking
to declare a failure of election in some or all of the precincts in Lumba-Bayabao, Lanao del Sur. After
all, petitioner argues, he has meritorious grounds in support thereto, viz., the massive
disenfranchisement of voters due to alleged terrorism and unlawful clustering of precincts, which
COMELEC should have at least heard before rendering its judgment.
Incidentally, a petition to annul an election is not a pre-proclamation controversy. Consequently, the
proclamation of a winning candidate together with his subsequent assumption of office is not an
impediment to the prosecution of the case to its logical conclusion. 17
Under the COMELEC Rules of Procedure, within twenty-four (24) hours from the filing of a verified
petition to declare a failure to elect, notices to all interested parties indicating therein the date of
hearing should be served through the fastest means available. 18 The hearing of the case will also be
summary in nature. 19

Based on the foregoing, the clear intent of the law is that a petition of this nature must be acted upon
with dispatch only after hearing thereon shall have been conducted. Since COMELEC denied the
other petitions 20 which sought to include forty-three (43) more precincts in a special election without
conducting any hearing, it would appear then that there indeed might have been grave abuse of
discretion in denying the petitions.

However, a closer examination of the COMELEC Rules of Procedure, particularly Sec. 2, Rule 26,
thereof which was lifted from Sec. 6, B.P. 881, otherwise known as the Omnibus Election Code of
the Philippines, indicates otherwise. It reads
Sec. 2. Failure of election. If, on account of force majeure, violence, terrorism,
fraud or other analogous causes the election in any precinct 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 of canvass thereof, such election results in a failure
to elect, and in any of such cases the failure or suspension of election would affect
the result of the election, the Commission shall, on the basis of a verified petition by
any interested party and after due notice and hearing, call for the holding or
continuation of the election not held, suspended or which resulted in a failure to elect
on a date reasonably close to the date of the election not held, suspended or which
resulted in a failure to elect but not later than thirty (30) days after the cessation of
the cause of such postponement or suspension of the election or failure to elect.
Before COMELEC can act on a verified petition seeking to declare a failure of election, two (2)
conditions must concur: first, no voting has taken place in the precinct or precincts on the date fixed
by law or, even if there was voting, the election nevertheless results in failure to elect; and, second,
the votes not cast would affect the result of the election. 21
In the case before us, it is indubitable that the votes not cast will definitely affect the outcome of the
election. But, the first requisite is missing, i.e., that no actual voting took place, or even if there is, the
results thereon will be tantamount to a failure to elect. Since actual voting and election by the
registered voters in the questioned precincts have taken place, the results thereof cannot be
disregarded and excluded. 22 COMELEC therefore did not commit any abuse of discretion, much less
grave, in denying the petitions outright. There was no basis for the petitions since the facts alleged therein
did not constitute sufficient grounds to warrant the relief sought. For, the language of the law expressly
requires the concurrence of these conditions to justify the calling of a special election. 23

Indeed, the fact that a verified petition is filed does not automatically mean that a hearing on the
case will be held before COMELEC will act on it. The verified petition must still show on its face that
the conditions to declare a failure to elect are present. In the absence thereof, the petition must be
denied outright.
Considering that there is no concurrence of the two (2) conditions in the petitions seeking to declare
failure of election in forty-three (43) more, precincts, there is no more need to receive evidence on
alleged election irregularities.
Instead, the question of whether there have been terrorism and other irregularities is better
ventilated in an election contest. These irregularities may not as a rule be invoked to declare a
failure of election and to disenfranchise the electorate through the misdeeds of a relative
few. 24 Otherwise, elections will never be carried out with the resultant disenfranchisement of innocent
voters as losers will always cry fraud and terrorism.

There can be failure of election in a political unit only if the will of the majority has been defiled and
cannot be ascertained. But, if it can be determined, it must be accorded respect. After all, there is no
provision in our election laws which requires that a majority of registered voters must cast their
votes. All the law requires is that a winning candidate must be elected by a plurality of valid votes,
regardless of the actual number of ballots cast. 25 Thus, even if less than 25% of the electorate in the
questioned precincts cast their votes, the same must still be respected. There isprima facie showing that
private respondent was elected through a plurality of valid votes of a valid constituency.

WHEREFORE, there being no grave abuse of discretion, the Petition for Certiorari is DISMISSED.
SO ORDERED.

EN BANC

[G.R. No. 134696. July 31, 2000]

TOMAS T. BANAGA, JR., petitioner, vs. COMMISSION ON ELECTIONS

and FLORENCIO M. BERNABE, JR., respondents.
DECISION
QUISUMBING, J.:

This special civil action for certiorari seeks to annul the en banc resolution of public
respondent Commission on Elections promulgated on June 29, 1998, in a COMELEC
special action case, SPA No. 98-383.
The factual antecedents of this case are as follows:
Petitioner and private respondent were the candidates for vice-mayor of the City of
Paraaque in the May 11, 1998 election. On May 19, 1998, the city board of canvassers
proclaimed private respondent, Florencio M. Bernabe, Jr., the winner for having
garnered a total of Seventy One Thousand Nine Hundred Seventy Seven (71,977)
votes of the total votes cast for the vice-mayoralty position. On the other hand,
petitioner, Tomas T. Banaga, Jr., received the second highest number of votes for the
said position, with Sixty Eight Thousand Nine Hundred Seventy (68,970) of the total
votes cast. Thus, the difference between the votes received by the private respondent
and the petitioner is three thousand seven (3,007) votes.
Dissatisfied, petitioner filed with the COMELEC on May 29, 1998, an action
denominated as Petition to Declare Failure of Elections and/or For Annulment of
Elections,[1] alleging that:

3. xxx the local elections for the office of Vice-Mayor in the City of Paraaque,
Metro Manila, held on 11 May 1998, amounts to a denigration of the
expression of the true will of the people, as it was tainted with widespread
election anomalies which constitutes election fraud. The local elections for the
position of Vice-Mayor in the City of Paraaque, Metro Manila, was replete with
election offenses, specifically vote buying and flying voters being allowed to
vote. Moreover, during the canvassing of votes before the Board of
Canvasser, numerous Election Returns were discovered to contain glaring
discrepancies and are replete with blatant omissions, not to mention the fact
that numerous election returns appeared to be tampered with. All told, it is
readily apparent that the portion of the Election Returns pertaining to the

position of Vice-Mayor in the City of Paraaque, appear to be altered, falsified

or fabricated.
4. The will of the legitimate voters of the City of Paraaque were denigrated
during the 11 May 1998 election as a consequence of the fact that an
indeterminable number of flying voters were allowed to vote.
xxx

5. The 11 May 1998 elections for local officials in the City of Paraaque has
likewise been marred by massive vote buying. To cite but one example, in
Precinct Nos. 111-112 at the Tambo Elementary School in the City of
Paraaque, a certain Dennis Sambilay Agayan (Agayan) was arrested for
voting in substitution of registered voter Ramon Vizcarra. Agayan admitted
before SPO1 Alberto V. Parena that he was paid One Hundred Fifty Pesos
(P150.00) to vote at precincts No. 111-112 and use the name Ramon
Vizcarra. As proof of the foregoing, attached hereto as Annex E is the
Information dated 11 May 1998 filed against Agayan.
The magnitude of the vote buying in the 11 May 1998 local elections in the
City of Paraaque, is such that the voters involved number in the
thousands. Evidence in this regard shall be presented in the proper time.
6. Also, there have been several instances where purported voters were
depositing more than one (1) ballot inside the ballot box. As evidence thereof,
attached hereto as Annex F is the Affidavit of a certain Rosemarie Pascua of
Barangay Baclaran, City of Paraaque.
7. The foregoing incidents alone actually suffices to establish that a failure of
elections should be declared on the ground that the will of the electorate of the
City of Paraaque has been denigrated. The elections for the office of the ViceMayor in the City of Paraaque, on 11 May 1998 cannot be considered as
reflective of the true will of the electorate. However, the anomalies do not stop
there.
8. In addition to the foregoing, during the canvassing of votes before the
Board of Canvassers, it was discovered that numerous election returns
contain glaring discrepancies and are replete with blatant omissions, not to
mention the fact that several election returns appeared to be tampered with or
appear to be fabricated. The Honorable Commission should seriously
consider these anomalies specially on account of the fact that the lead of the

respondent over the petitioner is a mere Three Thousand Seven (3,007)

votes.
xxx

9. Moreover, several Election Returns are found to have glaring discrepancies

which may materially alter the results of the election for the office of ViceMayor in the City of Paraaque.
xxx

10. Finally, what seriously casts doubt on the legitimacy of the elections for
the office of the Vice-Mayor in the City of Paraaque is the fact that the results
thereof are statistically improbable. A case in point is precinct number 483
where petitioner shockingly is supposed to have received zero (0)
votes. Petitioner is the incumbent Vice-Mayor of the City of Paraaque. It is,
thus, impossible that he will receive zero (0) votes in any given precinct.
[2]

Petitioner asked the COMELEC for the following reliefs:

1. After trial, judgment be rendered as follows:

1.1 Declaring a failure of elections, or declaring the annulment of the
elections, for the office of the Vice-Mayor in the City of Paraaque, Metro
Manila;
1.2. Annulling the proclamation of the respondent as the elected Vice-Mayor
of the City of Paraaque, Metro Manila, during the 11 May 1998 elections; and
1.3. Declaring that special elections should be held for the office of ViceMayor in the City of Paraaque, Metro Manila.
2. Alternatively, in the remote event that the Honorable Commission does not
render judgment as aforesaid, an order be issued to the Treasurer of the City
of Paraaque to bring and present before this Honorable Commission on or
before the day of the hearing of the Election Protest, the ballot boxes, copies
of the registry lists, election returns, the minutes of election in all precincts,
and the other documents used in the local elections for the Office of the ViceMayor held on 11 May 1998 in the said City, for the Honorable Commission to
re-examine and revise the same; and
3. After due trial judgment be rendered as follows:

3.1. The election of respondent FLORENCIO M. BERNABE, JR., for the office
of Vice-Mayor in the City of Paraaque, Metro Manila be annulled;
3.2. The petitioner, TOMAS T. BANAGA, JR., be adjudged as the duly elected
Vice-Mayor in the City of Paraaque, during the 11 May 1998 local elections;
and
3.3. The expenses, costs and damages incurred in these proceedings be
assessed against the respondent.
Other just and equitable reliefs are likewise prayed for.

[3]

On June 29, 1998, the COMELEC dismissed petitioners suit. It held that the
grounds relied upon by petitioner do not fall under any of the instances enumerated in
Section 6 of the Omnibus Election Code. The election tribunal concluded that based on
the allegations of the petition, it is clear that an election took place and that it did not
result in a failure to elect.[4]
Considering that a motion for reconsideration of a COMELEC en banc ruling is
prohibited, except in a case involving an election offense, [5] and aggrieved by the
COMELECs dismissal of his suit, petitioner timely filed the instant petition
for certiorari with this Court.
Before us, petitioner now claims that the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction when it dismissed his petitionmotu
propio without any basis whatsoever and without giving him the benefit of a hearing. He
contends that:
I

THE PETITION DATED 28 MAY 1998 IS ESSENTIALLY AN ELECTION

PROTEST. HENCE, THE COMELEC COULD NOT LEGALLY DISMISS
THE ENTIRE PETITION MERELY ON THE GROUND THAT THERE
WAS ALLEGEDLY NO FAILURE OF ELECTION IN THE CITY OF
PARANAQUE DURING THE 11 MAY 1998 ELECTIONS.
II

THE AUTHORITY RELIED UPON BY THE COMELEC AS BASIS FOR

THE DISMISSAL OF THE PETITION DATED 28 MAY 1998, THAT
OF EDWIN SAR[D]EA, ET. AL. V. COMELEC, ET. AL., AND MITMUG V.
COMELEC, ARE NOT APPLICABLE TO THE CASE AT BAR
CONSIDERING THAT ASIDE FROM BEING AN ELECTION PROTEST,
THE SAID PETITION SEEKS THE ANNULMENT OF AN ELECTION
PURSUANT TO THE DOCTRINE LAID DOWN BY THE HONORABLE
SUPREME COURT IN LOONG V. COMELEC.
[6]

Clearly, the issue for our resolution is whether or not public respondent acted with
grave abuse of discretion in dismissing petitioners petition, in the light of petitioners
foregoing contentions.
While petitioner may have intended to institute an election protest by praying that
said action may also be considered an election protest, in our view, petitioners action is
a petition to declare a failure of elections or annul election results. It is not an election
protest.
First, his petition before the COMELEC was instituted pursuant to Section 4 of
Republic Act No. 7166 in relation to Section 6 of the Omnibus Election Code. Section 4
of RA 7166 refers to postponement, failure of election and special elections [7] while
Section 6 of the Omnibus Election Code relates to failure of election. It is simply
captioned as Petition to Declare Failure of Elections and/or For Annulment of Elections.
Second, an election protest is an ordinary action while a petition to declare a failure
of elections is a special action under the 1993 COMELEC Rules of Procedure as
amended. An election protest is governed by Rule 20 on ordinary actions, while a
petition to declare failure of elections is covered by Rule 26 under special actions.
In this case, petitioner filed his petition as a special action and paid the
corresponding fee therefor. Thus, the petition was docketed as SPA-98-383. This
conforms to petitioners categorization of his petition as one to declare a failure of
elections or annul election results. In contrast, an election protest is assigned a docket
number starting with EPC, meaning election protest case.
Third, petitioner did not comply with the requirements for filing an election
protest. He failed to pay the required filing fee and cash deposits for an election
protest.Failure to pay filing fees will not vest the election tribunal jurisdiction over the
case. Such procedural lapse on the part of a petitioner would clearly warrant the outright
dismissal of his action.
Fourth, an en banc decision of COMELEC in an ordinary action becomes final and
executory after thirty (30) days from its promulgation, while an en banc decision in a
special action becomes final and executory after five (5) days from promulgation, unless
restrained by the Supreme Court.[8] For that reason, a petition cannot be treated as both
an election protest and a petition to declare failure of elections.
Fifth, the allegations in the petition decisively determine its nature. Petitioner alleged
that the local elections for the office of vice-mayor in Paraaque City held on May 11,
1998, denigrates the true will of the people as it was marred with widespread anomalies
on account of vote buying, flying voters and glaring discrepancies in the election
returns. He averred that those incidents warrant the declaration of a failure of elections.[9]
Given these circumstances, public respondent cannot be said to have gravely erred
in treating petitioners action as a petition to declare failure of elections or to annul
election results.
The COMELECs authority to declare a failure of elections is provided in our election
laws. Section 4 of RA 7166 provides that the COMELEC sitting en banc by a majority
vote of its members may decide, among others, the declaration of failure of election and

the calling of special election as provided in Section 6 of the Omnibus Election

Code. Said Section 6, in turn, provides as follows:

Section 6. Failure of Elections. --- If, on account of force majeure, violence,

terrorism, fraud or other analogous causes the election in any polling place
has not been held on the date fixed, or had been suspended before the hour
fixed by law for the closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the result of the
election, the Commission shall, on the basis of 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.
There are three instances where a failure of election may be declared, namely, (a)
the election in any polling place has not been held on the date fixed on account offorce
majeure, violence, terrorism, fraud or other analogous causes; (b) the election in any
polling place has been suspended before the hour fixed by law for the closing of the
voting on account of force majeure, violence, terrorism, fraud or other analogous
causes; or (c) after the voting and during the preparation and transmission of the
election returns or in the custody or canvass thereof, such election results in a failure to
elect on account of force majeure, violence, terrorism, fraud or other analogous
causes. In these instances, there is a resulting failure to elect. This is obvious in the first
two scenarios, where the election was not held and where the election was
suspended. As to the third scenario, where the preparation and the transmission of the
election returns give rise to the consequence of failure to elect must as aforesaid, is
interpreted to mean that nobody emerged as a winner.[10]
Before the COMELEC can act on a verified petition seeking to declare a failure of
election two conditions must concur, namely (1) no voting took place in the precinct or
precincts on the date fixed by law, or even if there was voting, the election resulted in a
failure to elect; and (2) the votes not cast would have affected the result of the
election.[11] Note that the cause of such failure of election could only be any of the
following: force majeure, violence, terrorism, fraud or other analogous causes.
We have painstakingly examined the petition filed by petitioner Banaga before the
COMELEC. But we found that petitioner did not allege at all that elections were either
not held or suspended. Neither did he aver that although there was voting, nobody was
elected. On the contrary, he conceded that an election took place for the office of vicemayor of Paraaque City, and that private respondent was, in fact, proclaimed elected to
that post. While petitioner contends that the election was tainted with widespread
anomalies, it must be noted that to warrant a declaration of failure of election the

commission of fraud must be such that it prevented or suspended the holding of an

election, or marred fatally the preparation and transmission, custody and canvass of the
election returns. These essential facts ought to have been alleged clearly by the
petitioner below, but he did not.
In Mitmug vs. COMELEC,[12] petitioner instituted with the COMELEC an action to
declare failure of election in forty-nine precincts where less than a quarter of the
electorate were able to cast their votes. He also lodged an election protest with the
Regional Trial Court disputing the result of the election in all precincts in his
municipality. The COMELEC denied motu propio and without due notice and hearing
the petition to declare failure of election despite petitioners argument that he has
meritorious grounds in support thereto, that is, massive disenfranchisement of voters
due to terrorism. On review, we ruled that the COMELEC did not gravely abuse its
discretion in denying the petition. It was not proven that no actual voting took
place. Neither was it shown that even if there was voting, the results thereon would be
tantamount to failure to elect. Considering that there is no concurrence of the conditions
seeking to declare failure of election, there is no longer need to receive evidence on
alleged election irregularities.
In Sardea vs. COMELEC,[13] all election materials and paraphernalia with the
municipal board of canvassers were destroyed by the sympathizers of the losing
mayoralty candidate. The board then decided to use the copies of election returns
furnished to the municipal trial court. Petitioner therein filed a petition to stop the
proceedings of the board of canvassers on the ground that it had no authority to use
said election returns obtained from the municipal trial court. The petition was
denied.Next, he filed a petition assailing the composition of the board of
canvassers. Despite that petition, the board of canvassers proclaimed the winning
candidates. Later on, petitioner filed a petition to declare a failure of election alleging
that the attendant facts would justify declaration of such failure. On review, we ruled that
petitioners first two actions involved pre-proclamation controversies which can no longer
be entertained after the winning candidates have been proclaimed. Regarding the
petition to declare a failure of election, we held that the destruction and loss of copies of
election returns intended for the municipal board of canvassers on account of violence
is not one of the causes that would warrant the declaration of failure of election. The
reason is that voting actually took place as scheduled and other valid election returns
still existed.Moreover, the destruction or loss did not affect the result of the election. We
also declared that there is failure of elections only when the will of the electorate has
been muted and cannot be ascertained. If the will of the people is determinable, the
same must as far as possible be respected.
These aforecited cases are instructive in the resolution of the present case because
they involve similar actions and issues. No error could be attributed to public respondent
for its reliance on these precedents.
In Loong vs. Comelec,[14] the petition for annulment of election results or to declare
failure of elections in Parang, Sulu, on the ground of statistical improbability and
massive fraud was granted by the COMELEC.[15] Even before the technical examination
of election documents was conducted, the COMELEC already observed badges of

fraud just by looking at the election results in Parang. Nevertheless, the COMELEC
dismissed the petition for annulment of election results or to declare failure of elections
in the municipalities of Tapul, Panglima Estino, Pata, Siasi and Kalinggalang
Calauag. The COMELEC dismissed the latter action on ground of untimeliness of the
petition, despite a finding that the same badges of fraud evident from the results of the
election based on the certificates of canvass of votes in Parang, are also evident in the
election results of the five mentioned municipalities. We ruled that COMELEC
committed grave abuse of discretion in dismissing the petition as there is no law which
provides for a reglementary period to file annulment of elections when there is yet no
proclamation. The election resulted in a failure to elect on account of fraud.Accordingly,
we ordered the COMELEC to reinstate the aforesaid petition. Those circumstances,
however, are not present in this case, so that reliance on Loong by petitioner Banaga is
misplaced.
Petitioner argues that the COMELEC should not have treated his prayer for
annulment of elections as a prayer for declaration of failure of elections. [16] This argument
is plainly gratuitous as well as immaterial. A prayer to declare failure of elections and a
prayer to annul the election results for vice mayor in this case are actually of the same
nature. Whether an action is for declaration of failure of elections or for annulment of
election results, based on allegations of fraud, terrorism, violence or analogous cause,
the Omnibus Election Code denominates them similarly.[17] No positive gain will accrue to
petitioners cause by making a distinction without a difference.
Finally, petitioner claims that public respondent gravely abused its discretion when it
dismissed his petition motu propio. However, the fact that a verified petition has been
filed does not mean that a hearing on the case should first be held before COMELEC
can act on it. The petition to declare a failure of election and/or to annul election results
must show on its face that the conditions necessary to declare a failure to elect are
present. In their absence, the petition must be denied outright. [18] Public respondent had
no recourse but to dismiss petition. Nor may petitioner now complain of denial of due
process, on this score, for his failure to properly file an election protest. The COMELEC
can only rule on what was filed before it. It committed no grave abuse of discretion in
dismissing his petition to declare failure of elections and/or for annulment of elections
for being groundless, hence without merit.
WHEREFORE, the instant petition is DISMISSED. The assailed RESOLUTION of
public respondent is AFFIRMED. Costs against petitioner.
SO ORDERED.

EN BANC

[G. R. No. 149803. January 31, 2002]

DATU ANDAL S. AMPATUAN, BIMBO Q. SINSUAT, SR., IBRAHIM B.

BIRUAR, ALONTO B. DAUDIE, MICHAEKL B. DIRANGAREN,
ASNAWIS S. LIMBONA, RUSSMAN Q. SINSUAT, ZALNUDIN M.
ABUTAZIL, DATUWATA U. ADZIS, BORGIVA T. DATU-MANONG,
FREDDIE G. MANGUDADATU and ABBAS A. PENDATUN,
JR., petitioners, vs. COMMISSION ON ELECTIONS, DATU
ZACARIA A. CANDAO, DATU NORODIN M. MATALAM, KHARIS
M. BARAGUIR, PAGRAS D. BIRUAR, CAHAR PENDAT IBAY,
PATULA O. TIOLO, MARHOMSAL K. LAUBAN, MENTANG T.
KABAGANI, ELIZABETH C. MASUKAT, GAPOR A. RAJAMUDA,
SAID S. SALIK and LINTATO G. SANDIGAN, respondents.
DECISION
PARDO, J.:

The case is a petition for certiorari and prohibition under Rule 64 in

relation to Rule 65 of the Revised Rules of Court with preliminary injunction or
temporary restraining order to nullify and set aside two (2) orders dated July
26, 2001 and August 28, 2001 of the Commission on Elections
(COMELEC), ordering a random technical examination of pertinent election
paraphernalia and other documents in several municipalities in
the province of Maguindanao to determine a failure of elections.
[1]

[2]

[3]

Petitioners and respondents were candidates for the provincial elective

positions in the province of Maguindanao in the May 14, 2001 election.
Petitioner Ampatuanand respondent Candao contended for the position of
governor. The slate of Ampatuan emerged as winners as per election returns.
[4]

[5]

On May 23, 2001, respondents filed a petition with the Comelec for the
annulment of election results and/or declaration of failure of elections in
several municipalities in the province of Maguindanao. They claimed that the
elections were completely sham and farcical. The ballots were filled-up en
masse by a few persons the night before election day, and in some precincts,
the ballot boxes, official ballots and other election paraphernalia were not
delivered at all.
[6]

[7]

[8]

On May 25, 2001, the Comelec issued an order suspending the

proclamation of the winning candidates for congressman of the second
district, governor, vice-governor and board members of Maguindanao.
[9]

On May 30, 2001, petitioners filed with the Comelec a motion to lift the
suspension of proclamation. On June 14, 2001, the Comelec issued an order
lifting the suspension of proclamation of the winning candidates for governor,
vice-governor and board members of the first and second
districts. Consequently, the Provincial Board of Canvassers proclaimed
petitioners winners.
[10]

[11]

[12]

On June 16, 2001, respondents filed with the Supreme Court a petition to
set aside the Comelec order dated June 14, 2001, and preliminary injunction
to suspend the effects of the proclamation of the petitioners. Meantime,
petitioners assumed their respective offices on June 30, 2001. On July 17,
2001, the Court resolved to deny respondents petition.
[13]

[14]

Petitioners assumption into office notwithstanding, on July 26, 2001,

the Comelec ordered the consolidation of respondents petition for declaration
of failure of elections with SPA Nos. 01-244, 01-332, 01-360, 01-388 and 01390. The COMELEC further ordered a random technical examination on four
to seven precincts per municipality on the thumb-marks and signatures of the
voters who voted and affixed in their voters registration records, and forthwith
directed the production of relevant election documents in these
municipalities.
[15]

[16]

On August 28, 2001, the Comelec issued another order directing the
continuation of the hearing and disposition of the consolidated SPAs on the
failure of elections and other incidents related thereto. It likewise ordered the
continuation of the technical examination of election documents as authorized
in the July 26, 2001 order. OnSeptember 27, 2001, the Comelec issued an
order outlining the procedure to be followed in the technical examination.
[17]

[18]

On September 26, 2001, petitioners filed the present petition. They

claimed that by virtue of their proclamation pursuant to the June 14,
2001 order issued by theComelec, the proper remedy available to
respondents was not a petition for declaration of failure of elections but an
election protest. The former is heard summarily while the latter involves a fullblown trial. Petitioners argued that the manner by which the technical
examination is to be conducted would defeat the summary nature of a
petition for declaration of failure of elections.
[19]

[20]

On October 5, 2001, petitioners filed a motion reiterating their request for

a temporary restraining order to enjoin the implementation of the July 26,
2001 and August 28, 2001 Comelec orders.
[21]

On October 22, 2001, the Comelec issued an order suspending the

implementation of the two (2) assailed orders, the pertinent portion of which
reads as follows:
The Commission, in view of the pendency of G. R. No. 149803 xxx, requiring it to
comment within ten (10) days from notice, hereby suspends implementation of its
orders of July 26, 2001 and August 28, 2001 in deference to the resolution of said
court.
[22]

However, on November 13, 2001, the Comelec issued another order lifting
the suspension.
[23]

On November 20, 2001, we issued a temporary restraining order, to wit:

xxx the Court Resolved to (a) ISSUE the TEMPORARY RESTRAINING ORDER
prayed for, effective immediately and continuing until further orders from this Court,
ordering the respondent Commission on Elections to CEASE and DESIST from
ordering the lifting of the suspended implementation orders dated 26 July 2001 and 28
August 2001 in SPA No. 01-323xxx.
[24]

The main issue to be resolved is whether the Commission on Elections

was divested of its jurisdiction to hear and decide respondents petition for
declaration of failure of elections after petitioners had been proclaimed.
We deny the petition.
Petitioners submit that by virtue of their proclamation as winners, the only
remedy left for private respondents is to file an election protest, in which case,
original jurisdiction lies with the regular courts. Petitioners cited several rulings
that an election protest is the proper remedy for a losing candidate after the
proclamation of the winning candidate.
[25]

However, the authorities petitioners relied upon involved pre-proclamation

controversies. In Loong v. Commission on Elections, we ruled that a preproclamation controversy is not the same as an action for annulment of
election results, or failure of elections. These two remedies were more
specifically distinguished in this wise:
[26]

While, however, the Comelec is restricted, in pre-proclamation cases, to an

examination of the election returns on their face and is without jurisdiction to go

beyond or behind them and investigate election irregularities, the Comelec is duty
bound to investigate allegations of fraud, terrorism, violence, and other analogous
causes in actions for annulment of election results or for declaration of failure of
elections, as the Omnibus Election Code denominates the same. Thus, the Comelec,
in the case of actions for annulment of election results or declaration of failure of
elections, may conduct technical examination of election documents and compare
and analyze voters signatures and thumbprints in order to determine whether or not
the elections had indeed been free, honest and clean.
[27]

The fact that a candidate proclaimed has assumed office does not deprive
the Comelec of its authority to annul any canvass and illegal proclamation. In
the case at bar, we cannot assume that petitioners proclamation and
assumption into office on June 30, 2001, was legal precisely because the
conduct by which the elections were held was put in issue by respondents in
their petition for annulment of election results and/or declaration of failure of
elections.
[28]

Respondents allegation of massive fraud and terrorism that attended the

May 14, 2001 election in the affected municipalities cannot be taken lightly as
to warrant the dismissal of their petition by the Comelec on the simple pretext
that petitioners had been proclaimed winners. We are not unmindful of the fact
that a pattern of conduct observed in past elections has been the pernicious
grab-the-proclamation-prolong-the-protest slogan of some candidates or
parties such that even if the protestant wins, it becomes a mere pyrrhic
victory, i.e., a vindication when the term of office is about to expire or has
expired. xxx 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.
[29]

Petitioners likewise rely on the case of Typoco, Jr. v. Commission on

Elections. This Court held that Comelec committed no grave abuse of
discretion in dismissing a petition for declaration of failure of elections.
However, we made a pronouncement that the dismissal was proper since the
allegations in the petition did not justify a declaration of failure of
elections. Typocos relief was for Comelec to order a recount of the votes cast,
on account of the falsified election returns, which is properly the subject of an
election contest.
[30]

[31]

Respondents petition for declaration of failure of elections, from which the

present case arose, exhaustively alleged massive fraud and terrorism that, if
proven, could warrant a declaration of failure of elections. Thus:

4.1. The elections in at least eight (8) other municipalities xxx were completely sham
and farcical. There was a total failure of elections in these municipalities, in that in
most of these municipalities, no actual voting was done by the real, legitimate voters
on election day itself but voting was made only by few persons who prepared in
advance, and en masse, the ballots the day or the night before election and, in many
precincts, there was completely no voting because of the non-delivery of ballot boxes,
official ballots and other election paraphernalia; and in certain municipalities, while
some semblance of voting was conducted on election day, there was widespread
fraudulent counting and/or counting under very irregular circumstances and/or
tampering and manufacture of election returns which completely bastardized the
sovereign will of the people. These illegal and fraudulent acts of desecration of the
electoral process were perpetrated to favor and benefit respondents. These acts were,
by and large, committed with the aid and/or direct participation of military elements
who were deployed to harass, intimidate or coerce voters and the supporters or
constituents of herein petitioners, principally, of reelectionist Governor Datu Zacaria Candao. Military units and personnel visibly,
openly and flagrantly violated election laws and regulations by escorting people or
elements engaged in the illegal, advanced preparation of ballots and election returns
and, at times, manning the polling places or precincts themselves and/or staying
within the prohibited radius. Ballot boxes and other election paraphernalia were
brought not to the precincts or voting centers concerned but somewhere else where
massive manufacture of ballots and election documents were perpetrated.
[32]

The Comelec en banc has the authority to annul election results and/or
declare a failure of elections. Section 6 of the Omnibus Election Code further
provides that:
[33]

Section 6. Failure of election.- If, on account of force majeure, violence, terrorism,

fraud, or other analogous causes the election in any polling place has not been held on
the date fixed, or had been suspended before the hour fixed by law for the closing of
the voting, or after the voting and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such election results in a failure
to elect, and in any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or continuation
of the election not held, suspended or which resulted in a failure to elect but not later
than thirty days after the cessation of the cause of such postponement or suspension of
the election of failure to elect.
Elucidating on the concept of failure of election, we held that:

xxx before Comelec can act on a verified petition seeking to declare a failure of
election, two (2) conditions must concur: first, no voting has taken place in the
precincts concerned on the date fixed by law or, even if there was voting, the election
nevertheless resulted in a failure to elect; and second, the votes cast would affect the
result of the election. In Loong vs. Commission on Elections, this Court added that the
cause of such failure of election should have been any of the following: force majeure,
violence, terrorism, fraud or other analogous cases.
[34]

In another case, we ruled that while it may be true that election did take
place, the irregularities that marred the counting of votes and the canvassing
of the election returns resulted in a failure to elect.
[35]

In the case at bar, the Comelec is duty-bound to conduct an investigation

as to the veracity of respondents allegations of massive fraud and terrorism
that attended the conduct of the May 14, 2001 election. It is well to stress that
the Comelec has started conducting the technical examination on November
16, 2001. However, by an urgent motion for a temporary restraining order filed
by petitioners, in virtue of which we issued a temporary restraining order
on November 20, 2001, the technical examination was held in abeyance until
the present. In order not to frustrate the ends of justice, we lift the temporary
restraining order and allow the technical examination to proceed with
deliberate dispatch.
WHEREFORE, the petition is hereby DISMISSED. The temporary
restraining order issued on November 20, 2001 is DISSOLVED. The
Commission on Elections is directed to proceed with the hearing of the
consolidated petitions and the technical examination as outlined in
its September 27, 2001 order with deliberate dispatch. No costs.
SO ORDERED.

EN BANC

[G.R. No. 133676. April 14, 1999]

TUPAY T. LOONG, petitioner, vs. COMMISSION ON ELECTIONS and

ABDUSAKUR TAN, respondents, YUSOP JIKIRI, intervenor.
DECISION
PUNO, J.:

In a bid to improve our elections, Congress enacted R.A. No. 8436 on December
22, 1997 prescribing the adoption of an automated election system. The new system
was used in the May 11, 1998 regular elections held in the Autonomous Region in
Muslim Mindanao (ARMM) which includes the Province of Sulu. Atty. Jose Tolentino, Jr.
headed the COMELEC Task Force to have administrative oversight of the elections in
Sulu.
The voting in Sulu was relatively peaceful and orderly. [1] The problem started during
the automated counting of votes for the local officials of Sulu at the Sulu State
College. At about 6 a.m. of May 12, 1998, some election inspectors and watchers
informed Atty. Tolentino, Jr. of discrepancies between the election returns and the votes
cast for the mayoralty candidates in the municipality of Pata. Some ballots picked at
random by Atty. Tolentino, Jr. confirmed that votes in favor of a mayoralty candidate
were not reflected in the printed election returns. He suspended the automated counting
of ballots in Pata and immediately communicated the problem to the technical experts of
COMELEC and the suppliers of the automated machine. After consultations, the
experts told him that the problem was caused by the misalignment of the ovals
opposite the names of candidates in the local ballots. They found nothing wrong
with the automated machines. The error was in the printing of the local ballots, as a
consequence of which, the automated machines failed to read them correctly. [2]
At 12:30 p.m. of the same day, Atty. Tolentino, Jr. called for an emergency
meeting of the local candidates and the military-police officials overseeing the Sulu
elections. Those who attended were the various candidates for governor, namely,
petitioner Tupay Loong, private respondent Abdusakur Tan, intervenor Yusop Jikiri and
Kimar Tulawie. Also in attendance were Brig. Gen. Edgardo Espinosa, AFP, Marine
forces, Southern Philippines, Brig. Gen. Percival Subala, AFP, 3rd Marine Brigade,
Supt. Charlemagne Alejandrino, Provincial Director, Sulu, PNP Command and
congressional candidate Bensandi Tulawie.[3]
The meeting discussed how the ballots in Pata should be counted in light of the
misaligned ovals. There was lack of agreement. Those who recommended a shift to
manual count were Brig. Generals Espinosa and Subala, PNP Director Alejandrino,

gubernatorial candidates Tan and Tulawie and congressional candidate Bensandi

Tulawie. Those who insisted on an automated count were gubernatorial candidates
Loong and Jikiri. In view of their differences in opinion, Atty. Tolentino, Jr. requested the
parties to submit their written position papers.[4]
Reports that the automated counting of ballots in other municipalities in Sulu
was not working well were received by the COMELEC Task Force. Local ballots in
five (5) municipalities were rejected by the automated machines. These
municipalities were Talipao, Siasi, Tudanan, Tapul and Jolo. The ballots were
rejected because they had the wrong sequence code.[5]
Private respondent Tan and Atty. Tolentino, Jr. sent separate communications to
the COMELEC en banc in Manila. Still, on May 12, 1998, Tan requested for the
suspension of the automated counting of ballots throughout the Sulu province.[6] On the
same day, COMELEC issued Minute Resolution No. 98-1747 ordering a manual count
but only in the municipality of Pata. The resolution reads:[7]
"x x x x x x x x x

"In the matter of the Petition dated May 12, 1998 of Abdusakur Tan, Governor,
Sulu, to suspend or stop counting of ballots through automation (sic)
machines for the following grounds, quoted to wit
'1.. The Election Returns for the Municipality of Pata, Province of Sulu-District
II do not reflect or reveal the mandate of the voters:
'DISCUSSIONS
'That the watchers called the attention of our political leaders and candidates
regarding their discovery that the election returns generated after the last
ballots for a precinct is scanned revealed that some candidates obtained zero
votes, among others the Provincial Board Members, Mayor, Vice-Mayor, and
the councilors for the LAKAS-NUCD-UMDP;
'That the top ballot, however, reveals that the ballots contained votes for
Anton Burahan, candidate for Municipal Mayor while the Election Return
shows zero vote;
'That further review of the Election Return reveals that John
Masillam, candidate for Mayor under the LAKAS-NUCD-UMDP-MNLF
obtains (sic) 100% votes of the total number of voters who actually
voted;
'The foregoing discrepancies were likewise noted and confirmed by the
chairmen, poll clerks and members of the Board of Election Inspectors (BEI)

such as Rena Jawan, Matanka Hajirul, Dulba Kadil, Teddy Mirajuli, Rainer
Talcon, Mike Jupakal, Armina Akmad, Romulo Roldan and Lerma Marawali to
mention some;
'The Pata incident can be confirmed by no less than Atty. Jose Tolentino,
Head, Task Force Sulu, whose attention was called regarding the
discrepancies;
'The foregoing is a clear evidence that the automated machine (scanner)
cannot be relied upon as to truly reflect the contents of the ballots. If such
happened in the Municipality of Pata, it is very possible that the same is
happening in the counting of votes in the other municipalities of this
province. If this will not be suspended or stopped, the use of automated
machines will serve as a vehicle to frustrate the will of the sovereign people of
Sulu;
'Wherefore, the foregoing premises considered and in the interest of an
honest and orderly election, it is respectfully prayed of this Honorable
Commission that an Order be issued immediately suspending or stopping the
use of the automated machine (scanner) in the counting of votes for all the
eighteen (18) municipalities in the Province of Sulu and in lieu thereof, to
avoid delay, counting be done through the usual way known and tested by us.'
"While the commission does not agree with the conclusions stated in
the petition, and the failure of the machine to read the votes may have
been occasioned by other factors, a matter that requires
immediate investigation, but in the public interest, the Commission,
'RESOLVED to grant the Petition dated May 12, 1998 and to Order that
the counting of votes shall be done manually in the Municipality of
PATA, the only place in Sulu where the automated machine failed to
read the ballots, subject to notice to all parties concerned."'
Before midnight of May 12,1998, Atty. Tolentino, Jr. was able to send to the
COMELEC en banc his report and recommendation, urging the use of the manual count
in the entire Province of Sulu, viz:[8]

"The undersigned stopped the counting in the municipality of Pata since he

discovered that votes for a candidate for mayor was credited in favor of the
other candidate.Verification with the Sulu Technical Staff, including Pat
Squires of ES & S, reveals that the cause of the error is the way the ballot was
printed. Aside from misalignment of the ovals and use of codes assigned to

another municipality (which caused the rejection of all local ballots in one
precinct in Talipao), error messages appeared on the screen although the
actual condition of the ballots would have shown a different
message. Because of these, the undersigned directed that counting for all
ballots in Sulu be stopped to enable the Commission to determine the
problem and rectify the same. It is submitted that stopping the counting is
more in consonance with the Commission's mandate than proceeding with an
automated but inaccurate count.
"In view of the error discovered in Pata and the undersigned's order to
suspend the counting, the following documents were submitted to him.
"1. Unsigned letter dated May 12, 1998 submitted by Congressman Tulawie
for manual counting and canvassing;
"2. Petition of Governor Sakur Tan for manual counting;
"3. Position paper of Tupay Loong, Benjamin Loong and Asani Tamang for
automated count;
"4. MNLF Position for automated count; and
"5. Recommendation of General E.V. Espinosa, General PM Subala, and PD
CS Alejandrino for manual count;
"Additional marines have been deployed at the SSC. The undersigned is not
sure if it is merely intended to tame a disorderly crowd, inside and outside
SSC, or a show of force.
"It is submitted that since an error was discovered in a machine which is
supposed to have an error rate of 1: 1,000,000, not a few people would
believe that this error in Pata would extend to the other
municipalities. Whether or not this is true, it would be more prudent
to stay away from a lifeless thing that has sown tension and anxiety
among and between the voters of Sulu.
Respectfully submitted:
12 May 1998
(Sgd.) JOSE M. TOLENTINO,
JR."

The next day, May 13, 1998, COMELEC issued Resolution No. 98-1750 approving
Atty. Tolentino, Jr.'s recommendation and the manner of its implementation as
suggested by Executive Director Resurreccion Z. Borra. The Resolution reads:[9]

"In the matter of the Memorandum dated 13 May 1998 of Executive Director
Resurreccion Z. Borra, pertinent portion of which is quoted as follows:
"In connection with Min. Res. No. 98-1747 promulgated May 12, 1998 which
resolved to order that the counting of votes shall be done manually in the
municipality of Pata, the only place in Sulu where the automated counting
machine failed to read the ballots, subject to notice to all parties concerned,
please find the following:
"1. Handwritten Memo of Director Jose M. Tolentino, Jr., Task Force Head,
Sulu, addressed to the Executive Director on the subject counting and
canvassing in the municipality of Pata due to the errors of the counting of
votes by the machine brought about by the error in the printing of the ballot,
causing misalignment of ovals and use of codes assigned to another
municipality.
He recommended to revert to the manual counting of votes in the whole of
Sulu. He attached the stand of Congressman Tulawie, Governor Sakur Tan
and recommendation of Brigadier General Edgardo Espinosa, General
Percival Subla, P/Supt. Charlemagne Alejandrino for manual counting. The
position paper of former Governor Tupay Loong, Mr. Benjamin Loong and Mr.
Asani S. Tammang, who are candidates for Governor and Congressman of
1st and 2nd Districts respectively, who wanted the continuation of the
automated counting.
"While the forces of AFP are ready to provide arm (sic) security to our
Comelec officials, BEIs and other deputies, the political tensions and
imminent violenceand bloodshed may not be prevented, as per
report received, the MNLF forces are readying their forces to surround
the venue for automated counting andcanvassing in Sulu in order that
the automation process will continue.
"Director Borra recommends, that while he supports Minute Resolution No.
98-1747, implementation thereof shall be done as follows:
"1. That all the counting machines from Jolo, Sulu be transported back
by C130 to Manila and be located at the available space at PICC for
purposes of both automated and manual operations. This approach will

keep the COMELEC officials away from violence and bloodshed between
the two camps who are determined to slug each other as above
mentioned in Jolo, Sulu. Only authorized political party and candidate
watchers will be allowed in PICC with proper security, both inside and
outside the perimeters of the venue at PICC.
"2. With this process, there will be an objective analysis and supervision
of the automated and manual operations by both the MIS and Technical
Expert of the ES & S away from the thundering mortars and the sounds
of sophisticated heavy weapons from both sides of the warring factions.
"3. Lastly, it will be directly under the close supervision and control of
Commission on Elections En Banc.
"RESOLVED:
"1. To transport all counting machines from Jolo, Sulu by C130 to Manila
for purposes of both automated and manual operations, with notice to
all parties concerned;
"2. To authorize the official travel of the board of canvassers concerned
for the conduct of the automated and manual operations of the counting
of votes at PICC under the close supervision and control of the
Commission En Banc. For this purpose, to make available a designated
space at the PICC;
"3. To authorize the presence of only the duly authorized representative
of the political parties concerned and the candidates watchers both
outside and inside the perimeters of the venue at PICC."
Atty. Tolentino, Jr. furnished the parties with copies of Minute Resolution No.
98-1750 and called for another meeting the next day, May 14, 1998, to discuss the
implementation of the resolution.[10] The meeting was attended by the parties, by Lt.
Gen. Joselin Nazareno, then the Chief of the AFP Southern Command, the NAMFREL,
media, and the public. Especially discussed was the manner of transporting the ballots
and the counting machines to the PICC in Manila. They agreed to allow each political
party to have at least one (1) escort/ watcher for every municipality to acompany the
flight. Two C130s were used for the purpose.[11]
On May 15, 1998, the COMELEC en banc issued Minute Resolution No. 98-1796
laying down the rules for the manual count, viz:[12]

"In the matter of the Memorandum dated 15 May 1998 of Executive Director
Resurreccion Z. Borra, quoted to wit:

'In the implementation of COMELEC Min. Resolution No. 98-1750

promulgated 13 May 1998 in the manual counting of votes of Pata, Sulu, and
in view of the arrival of the counting machines, ballot boxes, documents and
other election paraphernalia for the whole province of Sulu now stored in
PICC, as well as the arrival of the Municipal Board of Canvassers of said
Municipality in Sulu, and after conference with some members of the Senior
Staff and Technical Committee of this Commission, the following are hereby
respectfully recommended:
'1. Manual counting of the local ballots of the automated election system in
Pata, Sulu;
'2. Automated counting of the national ballots considering that there are no
questions raised on the National Elective Officials as pre-printed in the marksensed ballots;
'3. The creation of the following Special Boards of Inspectors under the
supervision of Atty. Jose M. Tolentino, Jr., Task Force Head, Sulu, namely:
a) Atty. Mamasapunod M. Aguam
Ms. Gloria Fernandez
Ms. Esperanza Nicolas
b) Director Ester L. Villaflor-Roxas
Ms. Celia Romero
Ms. Rebecca Macaraya
c) Atty. Zenaida S. Soriano
Ms. Jocelyn Guiang
Ma. Jacelyn Tan
d) Atty. Erlinda C. Echavia
Ms. Theresa A. Torralba
Ms. Ma. Carmen Llamas
e) Director Estrella P. de Mesa
Ms. Teresita Velasco
Ms. Nelly Jaena
'4. Additional Special Board of Inspectors may be created when necesary.

'5. The Provincial Board of Canvassers which by standing Resolution is

headed by the Task Force Sulu Head shall consolidate the manual and
automated results as submitted by the Municipal Boards of Canvassers of the
whole province with two members composed of Directors Estrella P. de Mesa
and Ester L. Villaflor-Roxas;
'6. The political parties and the candidates in Sulu as well as the Party-List
Candidates are authorized to appoint their own watchers upon approval of the
Commission',
'RESOLVED to approve the foregoing recommendations in the
implementation of Min. Resolution No. 98-1750 promulgated on 13 May 1998
providing for the manual counting of votes in the municipality of Pata, Sulu.
'RESOLVED, moreover, considering the recommendation of Comm. Manolo
B. Gorospe, Commissioner-In-Charge, ARMM, to conduct a parallel manual
counting on all 18 municipalities of Sulu as a final guidance of the reliability of
the counting machine which will serve as basis for the proclamation of the
winning candidates and for future reference on the use of the automated
counting machine."'
On May 18, 1998, petitioner filed his objection to Minute Resolution No. 981796, viz:[13]

"1. The minute resolution under agenda No. 98-1796 violates the provisions of
Republic Act No. 8436 providing for an automated counting of the ballots in
the Autonomous Region in Muslim Mindanao. The automated counting is
mandatory and could not be substituted by a manual counting. Where the
machines are allegedly defective, the only remedy provided for by law is to
replace the machine. Manual counting is prohibited by law;
"2. There are strong indications that in the municipality of Pata the ballots of
the said municipality were rejected by the counting machine because the
ballots were tampered and/or the texture of the ballots fed to the counting
machine are not the official ballots of the Comelec;
"3. The automated counting machines of the Comelec have been designed in
such a way that only genuine official ballots could be read and counted by the
machine;
"4. The counting machines in the other municipalities are in order. In fact, the
automated counting has already started. The automated counting in the

municipalities of Lugus and Panglima Tahil has been completed. There is no

legal basis for the 'parallel manual counting' ordained in the disputed minute
resolution."
Nonetheless, COMELEC started the manual count on the same date, May 18,1998.
On May 25, 1998, petitioner filed with this Court a petition for certiorari and
prohibition under Rule 65 of the Rules of Court. He contended that: (a) COMELEC
issued Minute Resolution Nos. 98-1747, 98-1750, and 98-1798 without prior notice and
hearing to him; (b) the order for manual counting violated R.A. No. 8436; (c) manual
counting gave "opportunity to the following election cheatings," namely:

"(a) The counting by human hands of the tampered, fake and counterfeit
ballots which the counting machines have been programmed to reject
(Section 7, 8 & 9 of Rep. Act 8436).
"(b) The opportunity to substitute the ballots all stored at the PICC. In fact, no
less than the head of the COMELEC Task Force of Sulu, Atty. Jose M.
Tolentino, Jr. who recommended to the COMELEC the anomalous manual
counting, had approached the watchers of petitioners to allow the retrieval of
the ballots, saying "tayo, tayo lang mga watchers, pag-usapan
natin," dearly indicating overtures of possible bribery of the watchers of
petitioner (ANNEX E).
"(c) With the creation by the COMELEC of only 22 Boards of Election
Inspectors to manually count the 1,194 precincts, the manipulators are given
sufficient time to change and tamper the ballots to be manually counted.
"(d) There is the opportunity of delaying the proclamation of the winning
candidates through the usually dilatory moves in a pre-proclamation
controversy because the returns and certificates of canvass are already
human (sic) made. In the automated counting there is no room for any dilatory
pre-proclamation controversy because the returns and the MBC and PBC
certificates of canvass are machine made and immediate proclamation is
ordained thereafter."
Petitioner then prayed:

"WHEREFORE, it is most especially prayed of the Honorable Court that:

"1. upon filing of this petition, a temporary restraining order be issued
enjoining the COMELEC from conducting a manual counting of the ballots of
the 1,194 precincts of the 18 municipalities of the Province of Sulu but instead

proceed with the automated counting of the ballots, preparation of the election
returns and MBC, PBC certificates of canvass and proclaim the winning
candidates on the basis of the automated counting and consolidation of
results;
"2. this petition be given due course and the respondents be required to
answer;
"3. after due hearing, the questioned COMELEC En Banc Minute Resolutions
of May 12, 13, 15, and 17, 1998 be all declared null and void ab initio for
having been issued without jurisdiction and/or with grave abuse of discretion
amounting to lack of jurisdiction and for being in violation of due process of
law;
" 4. the winning candidates of the Province of Sulu be proclaimed on the basis
of the results of the automated counting, automated election returns,
automated MBC and PBC certificates of canvass;
"x x x."
On June 8, 1998, private respondent Tan was proclaimed governor- elect of
Sulu on the basis of the manual count.[14] Private respondent garnered 43,573
votes. Petitioner was third with 35,452 votes or a difference of 8,121 votes.
On June 23, 1998, this Court required the respondents to file their Comment to the
petition and directed the parties "to maintain the status quo prevailing at the time of the
filing of the petition."[15] The vice-governor elect was allowed to temporarily discharge the
powers and functions of governor.
On August 20, 1998, Yusop Jikiri, the LAKAS-NUCD-UMDP-MNLF candidate for
governor filed a motion for intervention and a Memorandum in Intervention. [16] The result
of the manual count showed he received 38,993 votes and placed second. Similarly, he
alleged denial of due process, lack of factual basis of the COMELEC resolutions and
illegality of manual count in light of R.A. No. 8436. TheCourt noted his intervention.[17] As
similar petition for intervention filed by Abdulwahid Sahidulla, a candidate for vicegovernor, on October 7, 1998 was denied as it was filed too late.
In due time, the parties filed their respective Comments. On September 25, 1998,
the Court heard the parties in oral arguments[18] which was followed by the submission
of their written memoranda.
The issues for resolution are the following:
1. Whether or not a petition for certiorari and prohibition under Rule 65 of the Rules of
Court is the appropriate remedy to invalidate the disputed COMELEC resolutions.

2. Assuming the appropriateness of the remedy, whether or not COMELEC committed

grave abuse of discretion amounting to lack of jurisdiction in ordering a manual
count.
2.a. Is there a legal basis for the manual count?
2-b. Are its factual bases reasonable?
2.c. Were the petitioner and the intervenor denied due process by the COMELEC
when it ordered a manual count?
3. Assuming the manual count is illegal and that its result is unreliable, whether or not it
is proper to call for a special election for the position of governor of Sulu.

We shall resolve the issues in seriatim.

First. We hold that certiorari is the proper remedy of the petitioner. Section 7, Article
IX(A) of the 1987 Constitution states that if "unless provided by this Constitution or by
law, any decision, order or ruling of each Commission may be brought to the Supreme
Court on certiorari by the aggrieved party within thirty days from receipt of a copy
thereof." We have interpreted this provision to mean final orders, rulings and decisions
of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial
powers.[19] Contrariwise, administrative orders of the COMELEC are not, as a general
rule, fit subjects of a petition for certiorari. The main issue in the case at bar is whether
the COMELEC gravely abused its discretion when it ordered a manual count of the
1998 Sulu local elections. A resolution of the issue will involve an interpretation of R.A.
No. 8436 on automated election in relation to the broad power of the COMELEC under
Section 2(1), Article IX(C) of the Constitution "to enforce and administer all laws and
regulations relative to the conduct of an election x x x." The issue is not only legal but
one of first impression and undoubtedly suffused with significance to the entire nation. It
is adjudicatory of the right of the petitioner, the private respondent and the intervenor to
the position of governor of Sulu. These are enough considerations to call for an exercise
of the certiorari jurisdiction of this Court.
Second. The big issue, one of first impression, is whether the COMELEC
committed grave abuse of discretion amounting to lack of jurisdiction when it ordered a
manual count in light of R.A. No. 8436. The post election realities on ground will show
that the order for a manual count cannot be characterized as arbitrary, capricious or
whimsical.
a. It is well established that the automated machines failed to read correctly the ballots
in the municipality of Pata. A mayoralty candidate, Mr. Anton Burahan, obtained
zero votes despite the representations of the Chairman of the Board of Election
Inspectors and others that they voted for him. Another candidate garnered 100% of
the votes.
b. It is likewise conceded that the automated machines rejected and would not count
the local ballots in the municipalities of Talipao, Siasi, Indanan, Tapal and Jolo.
c. These flaws in the automated counting of local ballots in the municipalities of Pata,
Talipao, Siasi, Indanan, Tapal and Jolo were carefully analyzed by the technical
experts of COMELEC and the supplier of the automated machines. All of them
found nothing wrong with the automated machines. They traced the problem to the

printing of local ballots by the National Printing Office. In the case of the municipality
of Pata, it was discovered that the ovals of the local ballots were misaligned and
could not be read correctly by the automated machines. In the case of the
municipalities of Talipao, Siasi, Indanan, Tapal and Jolo, it turned out that the local
ballots contained the wrong sequence code.Each municipality was assigned a
sequence code as a security measure. Ballots with the wrong sequence code were
programmed to be rejected by the automated machines.

It is plain that to continue with the automated count in these five (5) municipalities
would result in a grossly erroneous count. It cannot also be gainsaid that the count in
these five (5) municipalities will affect the local elections in Sulu. There was no need for
more sampling of local ballots in these municipalities as they suffered from the same
defects. All local ballots in Pata with misaligned ovals will be erroneously read by the
automated machines. Similarly, all local ballots in Talipao, Siasi, Indanan, Tapal and
Jolo with wrong sequence codes are certain to be rejected by the automated
machines. There is no showing in the records that the local ballots in these five (5)
municipalities are dissimilar which could justify the call for their greater sampling.
Third. These failures of automated counting created post election tension in Sulu, a
province with a history of violent elections. COMELEC had to act decisively in view of
the fast deteriorating peace and order situation caused by the delay in the counting of
votes. The evidence of this fragile peace and order cannot be downgraded. In his
handwritten report to the COMELEC dated May 12, 1998, Atty. Tolentino, Jr. stated:
"x x x

"Additional marines have been deployed at the SSC. The undersigned is not
sure if it is merely intended to tame a disorderly crowd inside and outside
SSC, or a show of force.
"It is submitted that since an error was discovered in a machine which is
supposed to have an error rate of 1:1,000,000, not a few people would believe
that this error in Pata would extend to the other municipalities. Whether or not
this is true, it would be more prudent to stay away from a lifeless thing
that has sown tension and anxiety among and between the voters of
Sulu."
Executive Director Resurreccion Z. Borra, Task Force Head, ARMM in his May 13,1998
Memorandum to the COMELEC likewise stated:
"x x x

"While the forces of AFP are ready to provide arm (sic) security to our
COMELEC officials, BEI's and other deputies, the political tensions and
imminent violence and bloodshed may not be prevented, as per
report received, the MNLF forces are readying their forces to surround

the venue for automated counting and canvassing in Sulu in order that
automation process will continue."
Last but not the least, the military and the police authorities unanimously recommended
manual counting to preserve peace and order. Brig. Gen. Edgardo V. Espinosa,
Commanding General, Marine Forces Southern Philippines, Brig. Gen. Percival M.
Subala, Commanding General, 3rd Marine Brigade, and Supt. Charlemagne S.
Alejandrino, Provincial Director, Sulu PNP Command explained that it "x x x will not only
serve the interest of majority of the political parties involved in the electoral process but
also serve the interest of the military and police forces in maintaining peace and order
throughout the province of Sulu."
An automated count of the local votes in Sulu would have resulted in a wrong count,
a travesty of the sovereignty of the electorate. Its aftermath could have been a
bloodbath. COMELEC avoided this imminent probability by ordering a manual count of
the votes. It would be the height of irony if the Court condemns COMELEC for aborting
violence in the Sulu elections.
Fourth. We also find that petitioner Loong and intervenor Jikiri were not denied due
process. The Tolentino memorandum clearly shows that they were given every
opportunity to oppose the manual count of the local ballots in Sulu. They were orally
heard. They later submitted written position papers. Their representatives escorted the
transfer of the ballots and the automated machines from Sulu to Manila. Their watchers
observed the manual count from beginning to end. We quote the Tolentino
memorandum, viz:
"x x x

"On or about 6:00 a.m. of May 12, 1998, while automated counting of all the
ballots for the province of Sulu was being conducted at the counting center
located at the Sulu State College, the COMELEC Sulu Task Force Head (TF
Head) proceeded to the room where the counting machine assigned to the
municipality of Pata was installed to verify the cause of the commotion therein.
"During the interview conducted by the TF Head, the members of the Board of
Election Inspectors (BEI) and watchers present in said room stated that the
counting machine assigned to the municipality of Pata did not reflect the true
results of the voting thereat. The members of the BEI complained that their
votes were not reflected in the printout of the election returns since per
election returns of their precincts, the candidate they voted for obtained
"zero". After verifying the printout of some election returns as against the
official ballots, the TF Head discovered that votes cast in favor of a mayoralty
candidate were credited in favor of his opponents.
"In his attempt to remedy the situation, the TF Head suspended the counting
of all ballots for said municipality to enable COMELEC field technicians to

determine the cause of the technical error, rectify the same, and thereafter
proceed with automated counting. In the meantime, the counting of the ballots
for the other municipalities proceeded under the automated system.
"Technical experts of the supplier based in Manila were informed of the
problem and after numerous consultations through long distance calls, the
technical experts concluded that the cause of the error was in the manner the
ballots for local positions were printed by the National Printing Office (NPO),
namely, that the ovals opposite the names of the candidates were not properly
aligned. As regards the ballots for national positions, no error was found.
"Since the problem was not machine-related, it was obvious that the use of
counting machines from other municipalities to count the ballots of the
municipality of Pata would still result in the same erroneous count. Thus, it
was found necessary to determine the extent of the error in the ballot printing
process before proceeding with the automated counting.
"To avoid a situation where proceeding with automation will result in an
erroneous count, the TF Head, on or about 11:45 a.m. ordered the
suspension of the counting of all ballots in the province to enable him to call a
meeting with the heads of the political parties which fielded candidates in the
province, inform them of the technical error, and find solutions to the problem.
"On or about 12:30 p.m., the TF Head presided over a conference at Camp
General Bautista (3rd Marine Brigade) to discuss the process by which the will
of the electorate could be determined. Present during the meeting were:
1. Brig. Gen. Edgardo Espinoza
Marine Forces, Southern Philippines
2. Brig. Gen. Percival Subala
3rd Marine Brigade
3. Provincial Dir. Charlemagne Alejandrino
Sulu PNP Command
4. Gubernatorial Candidate Tupay Loong
LAKAS-NUCD Loong Wing
5. Gubernatorial Candidate Abdusakur Tan
LAKAS-NUCD Tan Wing

6. Gubernatorial Candidate Yusop Jikiri

LAKAS-NUCD-MNLF Wing
7. Gubernatorial Candidate Kimar Tulawie
LAMMP
8. Congressional Candidate Bensaudi Tulawie
LAMMP
"During said meeting, all of the above parties verbally advanced their
respective positions. Those in favor of a manual count were:
1. Brig. Gen. Edgardo Espinoza
2. Brig. Gen. Percival Subala
3. Provincial Dir. Charlemagne Alenjandrino
4. Gubernatorial Candidate Abdusakur Tan
5. Gubernatorial Candidate Kimar Tulawie
6. Congressional Candidate Bensaudi Tulawie and those in favor of an
automated count were:
1. Gubernatorial Candidate Tupay Loong
2. Gubernatorial Candidate Yusop Jikiri

"Said parties were then requested by the TF Head to submit their

respective position papers so that the same may be forwarded to the
Commission en banc,together with the recommendations of the TF
Head.
'The TF Head returned to the counting center at the Sulu State College and
called his technical staff to determine the extent of the technical error and to
enable him to submit the appropriate recommendation to the Commission en
banc.
"Upon consultation with the technical staff, it was discovered that in the
Municipality of Talipao, some of the local ballots were rejected by the
machine. Verification showed that while the ballots were genuine, ballot paper

bearing a wrong "sequence code" was used by the NPO during the printing
process.
"Briefly, the following is the manner by which a sequence code" determined
genuineness of a ballot. A municipality is assigned a specific machine (except
for Jolo, which was assigned two (2) machines, and sharing of one (1)
machine by two (2) municipalities, namely, H.P. Tahil and Maimbung,
Pandami and K. Caluang, Pata and Tongkil and Panamao and Lugus). A
machine is then assigned a specific "sequence code" as one of the security
features to detect whether the ballots passing through it are genuine. Since a
counting machine is programmed to read the specific "sequence code"
assigned to it, ballots which bear a "sequence code" assigned to another
machine/municipality, even if said ballots were genuine, will be rejected by the
machine.
"Other municipalities, such as Siasi, Indanan, Tapul and Jolo also had the
same problem of rejected ballots. However, since the machine operators were
not aware that one of the reasons for rejection of ballots is the use of wrong
"sequence code", they failed to determine whether the cause for rejection of
ballots for said municipalities was the same as that for the municipality of
Talipao.
"In the case of 'misaligned ovals', the counting machine will not reject the
ballot because all the security features, such as "sequence code", are present
in the ballot, however, since the oval is misaligned or not placed in its proper
position, the machine will credit the shaded oval for the position where the
machine is programmed to "read" the oval. Thus, instead of rejecting the
ballot, the machine will credit the votes of a candidate in favor of his opponent,
or in the adjacent space where the oval should be properly placed.
"It could not be determined if the other municipalities also had the same
technical error in their official ballots since the "misaligned ovals" were
discovered only after members of the Board of Election Inspectors of the
Municipality of Pata complained that their votes were not reflected in the
printout of the election returns.
"As the extent or coverage of the technical errors could not be determined, the
TF Head, upon consultation with his technical staff, was of the belief that it
would be more prudent to count the ballots manually than to proceed with an
automated system which will result in an erroneous count.

"The TF Head thus ordered the indefinite suspension of counting of ballots

until such time as the Commission shall have resolved the petition/position
papers to be submitted by the parties. The TF Head and his staff returned to
Camp General Bautista to await the submission of the position papers of the
parties concerned.
"Upon receipt of the position papers of the parties, the TF Head faxed
the same in the evening of May 12, 1998, together with his handwritten
recommendation to proceed with a manual count." Attached are copies of
the recommendations of the TF Head (Annex "1"), and the position papers of
the Philippine Marines and Philippine National Police (Annex "2"), LAKASNUCD Tan Wing Annex (Annex "3"), Lakas-NUCD Loong Wing (Annex "4"),
LAKAS-NUCD-MNLF Wing (Annex "5") and LAMMP (Annex "6"). Said
recommendations and position papers were the bases for the promulgation of
COMELEC Minute Resolution No. 98-1750 dated May 13, 1998 (Annex "7"),
directing among other things, that the ballots and counting machines be
transported by C130 to Manila for both automated and manual operations.
"Minute Resolution No. 98-1750 was received by the TF Head through
fax on or about 5:30 in the evening of May 13, 1998. Copies were then
served throughpersonal delivery to the heads of the political
parties, with notice to them that another conference will be conducted at
the 3rd Marine Brigade on May 14, 1998 at 9:00 o'clock in the morning,
this time, with Lt. General Joselin Nazareno, then AFP Commander,
Southern Command. Attached is a copy of said notice (Annex
"8") bearing the signatures of candidates Tan (Annex "8-A") and Loong
(Annex "8-B"), and the representatives of candidates Tulawie (Annex "8C") and Jikiri (Annex "8-D").
"On May 14, 1998, the TF Head presided over said conference in the
presence of the heads of the political parties of Sulu, together with their
counsel, including Lt. Gen. Nazareno, Brig. Gen. Subala, representatives of
the NAMFREL, media and the public.
"After hearing the sides of all parties concerned, including that of
NAMFREL, the procedure by which the ballots and counting machines
were to be transported to Manila was finalized, with each political
party authorized to send at least one (1) escort/watcher for every
municipality to accompany the ballot boxes and counting machines
from the counting center at the Sulu State College to the Sulu Airport up
to the PICC, where the COMELEC was then conducting its

Senatorial Canvass. There being four parties, a total of seventy-two (72)

escorts/watchers accompanied the ballots and counting machines.
"Two C130s left Sulu on May 15, 1998 to transport all the ballot boxes
and counting machines, accompanied by all the authorized escorts. Said
ballots boxes reached the PICC on the same day, with all the
escorts/watchers allowed to station themselves at the ballot box
storage area. On May 17, 1998, another C130 left Sulu to ferry the
members of the board of canvassers."
Fifth. The evidence is clear that the integrity of the local ballots was safeguarded
when they were transferred from Sulu to Manila and when they were manually counted.
As shown by the Tolentino memorandum, representatives of the political parties
escorted the transfer of ballots from Sulu to PICC. Indeed, in his May 14, 1992 letter to
Atty. Tolentino, Jr., petitioner Tupay Loong himself submitted the names of his
representatives who would accompany the ballot boxes and other election
paraphernalia,viz:[20]

"Dear Atty. Tolentino:

"Submitted herewith are the names of escort(s) to accompany the ballot boxes
and other election pharaphernalia to be transported to COMELEC, Manila, to
wit:
1. Jolo - Joseph Lu
2. Patikul - Fathie B. Loong
3. Indanan - - Dixon Jadi
4. Siasi - Jamal Ismael
5. K. Kaluang - Enjimar Abam
6. Pata - Marvin Hassan
7. Parang - Siyang Loong
8. Pangutaran - Hji. Nasser Loong
9. Marunggas - Taib Mangkabong
10. Luuk - Jun Arbison
11. Pandami - Orkan Osman
12. Tongkil - Usman Sahidulla
13. Tapul - Alphawanis Tupay
14. Lugus - Patta Alih
15. Maimbong - Mike Bangahan
16. P. Estino - Yasir lbba
17. Panamao - Hamba Loong
18. Talipao - Ismael Sali

"Hoping for your kind and (sic) consideration for approval on this matter.
"Thank you.
Very truly yours,
(Sgd.) Tupay T. Loong
(Sgd.) Asani S. Tammang"
The ballot boxes were consistently under the watchful eyes of the parties'
representatives. They were placed in an open space at the PICC. The watchers
stationed themselves some five (5) meters away from the ballot boxes. They watched
24 hours a day and slept at the PICC.[21]
The parties' watchers again accompanied the transfer of the ballot boxes from PICC
to the public schools of Pasay City where the ballots were counted. After the counting
they once more escorted the return of the ballot boxes to PICC.[22]
In fine, petitioner's charge that the ballots could have been tampered with before the
manual counting is totally unfounded.
Sixth. The evidence also reveals that the result of the manual count is reliable.
It bears stressing that the ballots used in the case at bar were specially made to suit
an automated election. The ballots were uncomplicated. They had fairly large ovals
opposite the names of candidates. A voter needed only to check the oval opposite the
name of his candidate. When the COMELEC ordered a manual count of the votes, it
issued special rules as the counting involved a different kind of ballot, albeit, more
simple ballots. The Omnibus Election Code rules on appreciation of ballots cannot apply
for they only apply to elections where the names of candidates are handwritten in the
ballots. The rules were spelled out in Minute Resolution 98-1798, viz:[23]

"In the matter of the Memorandum dated 17 May 1998 of Executive Director
Resurreccion Z. Borra, re procedure of the counting of votes for Sulu for the
convening of the Board of Election Inspectors, the Municipal Board of
Canvassers and the Provincial Board of Canvassers on May 18, 1998 at 9:00
a.m. at the Philippine International Convention Center (PICC),
'RESOLVED to approve the following procedure for the counting of votes for
Sulu at the PICC:
'I. Common Provisions:

'1. Open the ballot box, retrieve the Minutes of Voting and the
uncounted ballots or the envelope containing the counted ballots
as the case may be;
'2. Segregate the national ballots from the local ballots;
'3. Count the number of pieces of both the national and local ballots
and compare the same with the number of votes who actually
voted as stated in the Minutes of Voting:
- If there is no Minutes of Voting, refer to the Voting Records at the
back of the VRRs to determine the number of voters who actually
voted.
- If there are more ballots than the number of voters who actually
voted, the poll clerk shall draw out as many local and national
ballots as may be equal to the excess and place them in the
envelope for excess ballots.
'II Counting of Votes
'A. National Ballots:
'1. If the national ballots have already been counted, return the same
inside the envelope for counted ballots, reseal and place the
envelope inside the ballot box;
'2. If the national ballots have not yet been counted, place them inside
an envelope and give the envelope through a liaison officer to the
machine operator concerned for counting and printing of the
election returns;
'3. The machine operator shall affix his signature and thumbmark
thereon, and return the same to the members of the BEI
concerned for their signatures and thumbmarks;
'4. The said returns shall then be placed in corresponding envelopes for
distribution;
'B. Local Ballots:
'1. Group the local ballots in piles of fifty (50);

'2. The Chairman shall read the votes while the poll clerk and the third
member shall simultaneously accomplish the election returns and
the tally board respectively.
'If the voters shaded more ovals than the number of positions
to be voted for, no vote shall be counted in favor of any
candidate.
'3. After all the local ballots shall have been manually counted, the
same shall be given to the machine operator concerned for
counting by the scanning machine.The machine operator shall
then save the results in a diskette and print out the election
returns for COMELEC reference.
'4. The BEI shall accomplish the certification portion of the election returns
and announce the results;
'5. Place the election returns in their respective envelopes and distribute them
accordingly;
'6. Return all pertinent election documents and paraphernalia inside the ballot
box.
'III. Consolidation of Results
'A. National Ballots
'1. The results of the counting for the national ballots for each
municipality shall be consolidated by using the ERs of the
automated election system;
'2. After the consolidation, the Machine Operator shall print the
certificate of canvass by municipality and statement of votes by
precinct;
'3. To consolidate the provincial results, the MO shall load all the diskettes
used in the scanner to the ERs;
'4. The MO shall print the provincial certificate of canvass and the SOV by
municipality;

'5. In case there is system failure in the counting and/or consolidation

of the results, the POBC/MOBC shall revert to manual
consolidation.
'B. Local Ballots
'1. - The consolidation of votes shall be done manually by the
Provincial/Municipal Board of Canvassers;
'2. The proclamation of winning candidates shall be based on the manual
consolidation.
'RESOLVED, moreover, that the pertinent provisions of COMELEC
Resolution Nos. 2971 and 3030 shall apply.
'Let the Executive Director implement this resolution."'
As aforestated, five (5) Special Boards were initially created under Atty. Tolentino,
Jr. to undertake the manual counting,[24] viz:

"a) Atty. Mamasapunod M. Aguam

Ms. Gloria Fernandez
Ms. Esperanza Nicolas
b) Director Ester L. Villaflor-Roxas
Ms. Celia Romero
Ms. Rebecca Macaraya
c) Atty. Zenaida S. Soriano
Ms. Jocelyn Guiang
Ma. Jocelyn Tan
d) Atty. Erlinda C. Echavia
Ms. Teresa A. Torralba
Ms. Ma. Carmen Llamas
e) Director Estrella P. de Mesa
Ms. Teresita Velasco
Ms. Nelly Jaena"
Later, the COMELEC utilized the services of 600 public school teachers from Pasay
City to do the manual counting. Five (5) elementary schools served as the venues of the
counting, viz:[25]

"1. Gotamco Elementary School, Gotamco Street, Pasay City - for the
municipalities of Indanan, Pangutaran, Panglima Tahil, Maimbung;
"2. Zamora Elementary School, Zamora Street, Pasay City - for the
municipalities of Jolo, Talipao, Panglima Estino, and Tapul;
"3. Epifanio Elementary School, Tramo Street, Pasay City - for the
municipalities of Parang, Lugus, Panamao;
"4. Burgos Elementary School, Burgos Street, Pasay City - for the
municipalities of Luuk and Tongkil;
5. Palma Elementary School - for the municipalities of Siasi and Kalingalang
Caluang."
From beginning to end, the manual counting was done with the watchers of
the parties concerned in attendance. Thereafter, the certificates of canvass were
prepared and signed by the City/Municipal Board of Canvassers composed of the
Chairman, Vice-Chairman, and Secretary. They were also signed by the
parties' watchers.[26]
The correctness of the manual count cannot therefore be doubted. There was no
need for an expert to count the votes. The naked eye could see the checkmarks
opposite the big ovals. Indeed, nobody complained that the votes could not be read and
counted. The COMELEC representatives had no difficulty counting the votes. The 600
public school teachers of Pasay City had no difficulty. The watchers of the parties had
no difficulty. Petitioner did not object to the rules on manual count on the ground that the
ballots cannot be manually counted. Indeed, in his original Petition, petitioner did not
complain that the local ballots could not be counted by a layman. Neither did the
intervenor complain in his petition for intervention. The allegation that it will take a
trained eye to read the ballots is more imagined than real.
This is not all. As private respondent Tan alleged, the manual count could not have
been manipulated in his favor because the results show that most of his political
opponents won. Thus, "the official results show that the two congressional seats in Sulu
were won by Congressman Hussin Amin of the LAKAS-MNLF Wing for the 1 District
and Congressman Asani Tammang of the LAKAS-Loong Wing for the 2nd District. In
the provincial level, of the eight (8) seats for the Sangguniang Panlalawigan, two (2)
were won by the camp of respondent Tan; three (3) by the camp of petitioner Loong;
two (2) by the MNLF; and one (1) by LAMMP. In the mayoral race, seven (7) out of
eighteen (18) victorious municipal mayors were identified with respondent Tan; four (4)
with petitioner Loong; three (3) with the MNLF; two (2) with LAMMP and one (1) with
REPORMA."[27] There is logic to private respondent Tan's contention that if the manual
count was tampered, his candidates would not have miserably lost.
st

Seventh. We further hold that petitioner cannot insist on automated counting under
R.A. No. 8436 after the machines misread or rejected the local ballots in five (5)
municipalities in Sulu. Section 9 of R.A. No. 8436 provides:

"SEC. 9. Systems Breakdown in the Counting Center. In the event of a

systems breakdown of all assigned machines in the counting center, the
Commission shall use any available machine or any component thereof from
another city/municipality upon approval of the Commission En Banc or any of
its divisions.
The transfer of such machines or any component thereof shall be undertaken
in the presence of representatives of political parties and citizens' arm of the
Commission who shall be notified by the election officer of such transfer.
There is a systems breakdown in the counting center when the machine fails
to read the ballots or fails to store/save results or fails to print the results after
it has read the ballots; or when the computer fails to consolidate election
results/reports or fails to print election results/reports after consolidation."
As the facts show, it was inutile for the COMELEC to use other machines to count the
local votes in Sulu. The errors in counting were due to the misprinting of ovals and the
use of wrong sequence codes in the local ballots. The errors were not machinerelated. Needless to state, to grant petitioner's prayer to continue the machine count of
the local ballots will certainly result in an erroneous count and subvert the will of the
electorate.
Eighth. In enacting R.A. No. 8436, Congress obviously failed to provide a remedy
where the error in counting is not machine-related for human foresight is not allseeing. We hold, however, that the vacuum in the law cannot prevent the COMELEC
from levitating above the problem. Section 2(1) of Article IX(C) of the Constitution gives
the COMELEC the broad power "to enforce and administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum and
recall."Undoubtedly, the text and intent of this provision is to have COMELEC all the
necessary and incidental powers for it to achieve the objective of holding free, orderly,
honest, peaceful, and credible elections. Congruent to this intent, this Court has not
been niggardly in defining the parameters of powers of COMELEC in the conduct of our
elections. Thus, we held in Sumulong v. COMELEC:[28]

"Politics is a practical matter, and political questions must be dealt with

realistically - not from the standpoint of pure theory. The Commission on
Elections, because of its fact-finding facilities, its contacts with political
strategists, and its knowledge derived from actual experience in dealing with
political controversies, is in a peculiarly advantageous position to decide
complex political questions x x x. There are no ready made formulas for

solving public problems. Time and experience are necessary to evolve

patterns that will serve the ends of good government. In the matter of the
administration of laws relative to the conduct of election, x x x we must not by
any excessive zeal take away from the Commission on Elections the initiative
which by constitutional and legal mandates properly belongs to it."
In the case at bar, the COMELEC order for a manual count was not only reasonable. It
was the only way to count the decisive local votes in the six (6) municipalities of Pata,
Talipao, Siasi, Tudanan, Tapul and Jolo. The bottom line is that by means of the manual
count, the will of the voters of Sulu was honestly determined. We cannot kick away the
will of the people by giving a literal interpretation to R.A. 8436. R.A. 8436 did not prohibit
manual counting when machine count does not work. Counting is part and parcel of the
conduct of an election which is under the control and supervision of the COMELEC. It
ought to be self-evident that the Constitution did not envision a COMELEC that cannot
count the result of an election.
Ninth. Our elections are not conducted under laboratory conditions. In running for
public offices, candidates do not follow the rules of Emily Post. Too often, COMELEC
has to make snap judgments to meet unforseen circumstances that threaten to subvert
the will of our voters. In the process, the actions of COMELEC may not be impeccable,
indeed, may even be debatable. We cannot, however, engage in a swivel chair criticism
of these actions often taken under very difficult circumstances.Even more, we cannot
order a special election unless demanded by exceptional circumstances. Thus, the plea
for this Court to call a special election for the governorship of Sulu is completely offline. The plea can only be grounded on failure of election. Section 6 of the Omnibus
Election Code tells us when there is a failure of election, viz:

"Sec. 6. Failure of election. - If on account of force majeure, terrorism, fraud,

or other analogous causes, the election in any polling place has not been held
on the date fixed, or had been suspended before the hour fixed by law for the
closing of the voting, or after the voting and during the preparation and the
transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the Commission
shall on the basis of a verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of the election, not held,
suspended or which resulted in a failure to elect but not later than thirty days
after the cessation of the cause of such postponement or suspension of the
election or failure to elect."
To begin with, the plea for a special election must be addressed to the COMELEC and
not to this Court. Section 6 of the Omnibus Election Code should be read in relation to
Section 4 of R.A. No. 7166 which provides:

"Sec. 4. Postponement, Failure of Election and Special Elections. - The

postponement, declaration of failure of elections 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 en banc by a majority vote of its
members. The causes for the declaration of a failure of election may occur
before or after casting of votes or on the day of the election."
The grounds for failure of election - force majeure, terrorism, fraud or other analogous
causes - clearly involve questions of fact. It is for this reason that they can only be
determined by the COMELEC en banc after due notice and hearing to the parties. In the
case at bar, petitioner never asked the COMILEC en banc to call for a special election
in Sulu. Even in his original petition with this Court, petitioner did not pray for a special
election. His plea for a special election is a mere afterthought. Too late in the day and
too unprocedural. Worse, the grounds for failure of election are inexistent. The records
show that the voters of Sulu were able to cast their votes freely and fairly. Their votes
were counted correctly, albeit manually. The people have spoken. Their sovereign will
has to be obeyed.
There is another reason why a special election cannot be ordered by this Court. To
hold a special election only for the position of Governor will be discriminatory and will
violate the right of private respondent to equal protection of the law. The records show
that all elected officials in Sulu have been proclaimed and are now discharging their
powers and duties. Thus, two (2) congressmen, a vice-governor, eight (8) members of
the Sangguniang Panlalawigan and eighteen (18) mayors, numerous vice-mayors and
municipal councilors are now serving in their official capacities. These officials were
proclaimed on the basis of the same manually counted votes of Sulu. If manual counting
is illegal, their assumption of office cannot also be countenanced. Private respondent's
election cannot be singled out as invalid for alikes cannot be treated unalikes.
A final word. Our decision merely reinforces our collective efforts to endow
COMELEC with enough power to hold free, honest, orderly and credible elections. A
quick flashback of its history is necessary lest our efforts be lost in the labyrinth of time.
The COMELEC was organized under Commonwealth Act No. 607 enacted on
August 22,1940. The power to enforce our election laws was originally vested in the
President and exercised through the Department of Interior. According to Dean
Sinco,[29] the view ultimately emerged that an independent body could better protect the
right of suffrage of our people. Hence, the enforcement of our election laws, while an
executive power, was transferred to the COMELEC.
From a statutory creation, the COMELEC was transformed to a constitutional body
by virtue of the 1940 amendments to the 1935 Constitution which took effect on
December 2, 1940. COMELEC was generously granted the power to "have exclusive
charge of the enforcement and administration of all laws relative to the conduct of
elections x x x."[30]
Then came the 1973 Constitution. It further broadened the powers of COMELEC by
making it the sole Judge of all election contests relating to the election, returns and

qualifications of members of the national legislature and elective provincial and city
officials.[31] In fine, the COMELEC was given judicial power aside from its traditional
administrative and executive functions.
The 1987 Constitution quickened this trend of strengthening the COMELEC. Today,
COMLEC enforces and administers all laws and regulations relative to the conduct of
elections, plebiscites, initiatives, referenda and recalls. Election contests involving
regional, provincial and city elective officials are under its exclusive original
jurisdiction. All contests involving elective municipal and barangay officials are under its
appellate jurisdiction.[32]
Our decisions have been in cadence with the movement towards empowering the
COMELEC in order that it can more effectively perform its duty of safeguarding the
sanctity of our elections. In Cauton vs. COMELEC,[33] we laid down this liberal
approach, viz:
xxx

'The purpose of the Revised Election Code is to protect the integrity of

elections and to suppress all evils that may violate its purity and defeat the will
of the voters. The purity of the elections is one of the most fundamental
requisites of popular government. The Commission on Elections, by
constitutional mandate, must do everything in its power to secure a fair and
honest canvass of the votes cast in the elections. In the performance of its
duties, the Commission must be given a considerable latitude in adopting
means and methods that will insure the accomplishment of the great objective
for which it was created -- to promote free, orderly, and honest elections. The
choice of means taken by the Commission on Elections, unless they are
clearly illegal or constitute grave abuse of discretion, should not be
interfered with."
In Pacis vs. COMELEC,[34] we reiterated the guiding principle that "clean elections
control the appropriateness of the remedy." The dissent, for all its depth, is out of step
with this movement. It condemns the COMELEC for exercising its discretion to resort to
manual count when this was its only viable alternative. It would set aside the results of
the manual count even when the results are free from fraud and irregularity. Worse, it
would set aside the judgment of the people electing the private respondent as
Governor. Upholding the sovereignty of the people is what democracy is all
about. When the sovereignty of the people expressed thru the ballot is at stake, it
is not enough for this Court to make a statement but it should do everything to
have that sovereignty obeyed by all. Well done is always better than well said.
IN VIEW WHEREOF, the petition of Tupay Loong and the petition in intervention of
Yusop Jikiri are dismissed, there being no showing that public respondent gravely
abused its discretion in issuing Minute Resolution Nos. 98-1748, 98-1750, 98-1796 and
98-1798. Our status quo order of June 23, 1998 is lifted. No costs. SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

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, 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 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 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; 14hence, 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.
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 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 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.

EN BANC

[G.R. No. 133495. September 3, 1998]

BENJAMIN U. BORJA, JR., petitioner vs. COMMISSION ON ELECTIONS

and JOSE T. CAPCO, JR., respondents.
DECISION
MENDOZA, J.:

This case presents for determination the scope of the constitutional provision barring
elective officials, with the exception of barangay officials, from serving more than three
consecutive terms. In particular, the question is whether a vice-mayor who succeeds to the office
of mayor by operation of law and serves the remainder of the term is considered to have served a
term in that office for the purpose of the three-term limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988
for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law,
upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor
for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected
mayor for another term of three years ending June 30, 1998.[1]
On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of
Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja, Jr., who was also a
candidate for mayor, sought Capcos disqualification on the theory that the latter would have
already served as mayor for three consecutive terms by June 30, 1998 and would therefore be
ineligible to serve for another term after that.
On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of
petitioner and declared private respondent Capco disqualified from running for reelection as
mayor of Pateros.[2] However, on motion of private respondent, the COMELEC en banc, voting
5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998
elections.[3] The majority stated in its decision:

In both the Constitution and the Local

Government Code, the three-term limitation
refers to the term of office for which the
local official was elected. It made no
reference to succession to an office to which
he was not elected. In the case before the
Commission, respondent Capco was not
elected to the position of mayor in the
January 18, 1988 local elections. He

succeeded to such office by operation of law

and served for the unexpired term of his
predecessor. Consequently, such succession
into office is not counted as one (1) term for
purposes of the computation of the threeterm limitation under the Constitution and
the Local Government Code.
Accordingly, private respondent was voted for in the elections. He received 16,558 votes
against petitioners 7,773 votes and was proclaimed elected by the Municipal Board of
Canvassers.
This is a petition for certiorari brought to set aside the resolution, dated May 7, 1998, of he
COMELEC and to seed a declaration that private respondent is disqualified to serve another term
as Mayor of Pateros, Metro Manila.
Petitioner contends that private respondent Capcos service as mayor from September 2,
1989 to June 30, 992 should be considered as service for full one term, and since he thereafter
served from 1992 to 1998 two more terms as mayor, he should be considered to have served
three consecutive terms within the contemplation of Art. X, 8 of the Constitution and 43(b) of the
Local Government Code. Petitioner stresses the fact that, upon the death of Mayor Cesar Borja
on September 2, 1989, private respondent became the mayor and thereafter served the remainder
of the term. Petitioner argues that it is irrelevant that private respondent became mayor by
succession because the purpose of the constitutional provision in limiting the number of terms
elective local officials may serve is to prevent a monopolization of political power.
This contention will not bear analysis. Article X, 8 of the Constitution provides:

SEC. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for
more than three consecutive terms. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected.
This provision is restated in 43(b) of the Local Government Code (R.A. No. 7160):

Sec. 43. Term of Office - . . .

(b) No local elective official shall serve for more than three (3) consecutive terms
in the same position. Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the continuity of service for the
full term for which the elective official concerned was elected.
First, to prevent the establishment of political dynasties is not the only policy embodied in
the constitutional provision in question. The other policy is that of enhancing the freedom of
choice of the people. To consider, therefore, only stay in office regardless of how the official

concerned came to that office whether by election or by succession by operation of law would be
to disregard one of the purposes of the constitutional provision in question.
Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals
that the members of the Constitutional Commission were as much concerned with preserving the
freedom of choice of the people as they were with preventing the monopolization of political
power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after
serving three consecutive terms or nine years there should be no further reelection for local and
legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian
Monsod that such officials be simply barred from running for the same position in the
succeeding election following the expiration of the third consecutive term.[4] Monsod warned
against prescreening candidates [from] whom the people will choose as a result of the
proposed absolute disqualification, considering that the draft constitution provision recognizing
peoples power.[5]
Commissioner Blas F. Ople, who supported the Monsod proposal, said:
The principle involved is really whether this Commission shall impose a temporary or a
perpetual disqualification on those who have served their terms in accordance with the limits on
consecutive service as decided by the Constitutional Commission. I would be very wary about
this Commission exercising a sort of omnipotent power in order to disqualify those who will
already have served their terms from perpetuating themselves in office. I think the Commission
achieves its purpose in establishing safeguards against the excessive accumulation of power as a
result of consecutive terms. We do put a cap on consecutive service in the case of the President,
six years; in the case of the Vice-President, unlimited; and in the case of the Senators, one
reelection. In the case of the Members of Congress, both from the legislative districts and from
the party list and sectoral representation, this is now under discussion and later on the policy
concerning local officials will be taken up by the Committee on Local Governments. The
principle remains the same. I think we want to prevent future situations where, as a result of
continuous service and frequent reelections, officials from the President down to the municipal
mayor tend to develop a proprietary interest in their position and to accumulate those powers and
perquisites that permit them to stay on indefinitely or to transfer these posts to members of their
families in a subsequent election. I think that is taken care of because we put a gap on the
continuity or the unbroken service of all of these officials. But where we now decide to put these
prospective servants of the people or politicians, if we want to use the coarser term, under a
perpetual disqualification, I have a feeling that we are taking away too much from the people,
whereas we should be giving as much to the people as we can in terms of their own freedom of
choice.[6]
Other commissioners went on record against perpetually disqualifying elective officials who
have served a certain number of terms as this would deny the right of the people to choose.As
Commissioner Yusup R. Abubakar asked, why should we arrogate unto ourselves the right to
decide what the people want?[7]
Commisioner Felicitas S. Aquino spoke in the same vein when she called on her colleagues
to "allow the people to exercise their own sense of proportion and [rely] on their own strength to
curtail power when it overreaches itself.[8]

Commissioner Teodoro C. Bacani stressed: Why should we not leave [perpetual

disqualification after serving a number of terms] to the premise accepted by practically
everybody here that our people are politically mature? Should we use this assumption only when
it is convenient for us, and not when it may also lead to a freedom of choice for the people and
for politicians who may aspire to serve them longer?[9]
Two ideas thus emerge from a consideration of the proceedings of the Constitutional
Commission. The first is the notion of service of term, derived from the concern about the
accumulation of power as a result of a prolonged stay in office. The second is the idea
of election, derived from the concern that the right of the people to choose those whom they wish
to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did
so on the assumption that the officials concerned were serving by reason of reelection. This is
clear from the following exchange in the Constitutional Commission concerning term limits,
now embodied in Art. VI 4 and 7 of the Constitution, for members of Congress:
MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will
allow the Senator to rest for a period of time before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before if the Gentlemen will rememberwas: How long will that period of rest be? Will it be one election which is three years or one term
which is six years?

MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view
that during the election following the expiration of the first 12 years, whether
such electionwill be on the third year or on the sixth year thereafter, this particular
member of the Senate can run. So it is not really a period of hibernation for six
years. That was the Committees stand.[10]
Indeed, a fundamental tenet of representative democracy is that the people should be
allowed to choose whom they please to govern them.[11] To bar the election of a local official
because he has already served three terms, although the first as a result of succession by
operation of law rather than election, would therefore be to violate this principle.
Second, not only historical examination but textual analysis as well supports the ruling of
the COMELEC that Art. X, 8 contemplates service by local officials for three consecutive terms
as a result of election. The first sentence speaks of the term of office of elective local officials
and bars such official[s] from serving for more than three consecutive terms. The second
sentence, in explaining when an elective local official may be deemed to have served his full
term of office, states that voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected. The term served must therefore be one for which [the official concerned] was
elected. The purpose of this provision is to prevent a circumvention of the limitation on the
number of terms an elective official may serve. Conversely, if he is not serving a term for which
he was elected because he is simply continuing the service of the official he succeeds, such
official cannot be considered to have fully served the term now withstanding his voluntary
renunciation of office prior to its expiration.

Reference is made to Commissioner Bernas comment on Art. VI, 7, which similarly bars
members of the House of Representatives from serving for more than three terms.Commissioner
Bernas states that if one is elected Representative to serve the unexpired term of another, that
unexpired term, no matter how short, will be considered one term for the purpose of computing
the number of successive terms allowed.[12]
This is actually based on the opinion expressed by Commissioner Davide in answer to a
query of Commissioner Suarez: For example, a special election is called for a Senator, and the
Senator newly elected would have to serve the unexpired portion of the term. Would that mean
that serving the unexpired portion of the term is already considered one term? So, half a term,
which is actually the correct statement, plus one term would disqualify the Senator concerned
from running? Is that the meaning of this provision on disqualification, Madam
President? Commissioner Davide said: Yes, because we speak of term and if there is a special
election, he will serve only for the unexpired portion of that particular term plus one more term
for the Senator and two more terms for the Members of the Lower House.[13]
There is a difference, however, between the case of a vice-mayor and that of a member of
the House of Representatives who succeeds another who dies, resigns, becomes incapacitated, or
is removed from office. The vice-mayor succeeds to the mayorship by operation of law.[14] On the
other hand, the Representative is elected to fill the vacancy.[15] In a real sense, therefore, such
Representative serves a term for which he was elected. As the purpose of the constitutional
provision is to limit the right ot be elected and to serve in Congress, his service of the unexpired
term is rightly counted as his first term. Rather than refute what we believe to be the intendment
of Art. X, 8 with regard to elective local officials, the case of a Representative who succeeds
another confirms the theory.
Petitioner also cites Art. VII, 4 of the Constitution which provides for succession of the
Vice-President to the Presidency in case of vacancy in that office. After stating that The
President shall not be eligible for any reelection, this provision says that No person who has
succeeded as President and has served as such for more than four years shall be qualified for
election to the same office at any time. Petitioner contends that, by analogy, the vice-mayor
should likewise be considered to have served a full term as mayor if he succeeds to the latters
office and serves for the remainder of the term.
The framers of the Constitution included such a provision because, without it, the VicePresident, who simply steps into the Presidency by succession would be qualified to run for
President even if he has occupied that office for more than four years. The absence of a similar
provision in Art. X, 8 on elective local officials throws in bold relief the difference between the
two cases. It underscores the constitutional intent to cover only the terms of office to which one
may have been elected for purpose of the three-term limit on local elective officials, disregarding
for this purpose service by automatic succession.
There is another reason why the Vice-President who succeeds to the Presidency and serves
in that office for more than four years is ineligible for election as President. The Vice-President
is elected primarily to succeed the President in the event of the latters death, permanent
disability, removal or resignation. While he may be appointed to the cabinet, his becoming so is
entirely dependent on the good graces of the President. In running for Vice-President, he may
thus be said to also seek the Presidency. For their part, the electors likewise choose as VicePresident the candidate who they think can fill the Presidency in the event it becomes

vacant. Hence, service in the presidency for more than four years may rightly be considered as
service for a full term.
This is not so in the case of the vice-mayor. Under the local Government Code, he is the
presiding officer of the sanggunian and he appoints all officials and employees of such local
assembly. He has distinct powers and functions, succession to mayorship in the event of vacancy
therein being only one of them.[16] It cannot be said of him, as much as of the Vice-President in
the event of a vacancy in the Presidency, that in running for vice-mayor, he also seeks the
mayorship. His assumption of the mayorship in the event of vacancy is more a matter of chance
than of design. Hence, his service in that office should not be counted in the application of any
term limit.
To recapitulate, the term limit for elective local officials must be taken to refer to the right to
be elected as well as the right to serve in the same elective position. Consequently, it is not
enough that an individual has served three consecutive terms in an elective local office, he must
also have been elected to the same position for the same number of times before the
disqualification can apply. This point can be made clearer by considering the following cases or
situations:

Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of
the incumbent. Six months before the next election, he resigns and is twice elected
thereafter. Can he run again for mayor in the next election.
Yes, because although he has already first served as mayor by succession and
subsequently resigned from office before the full term expired, he has not actually
served three full terms in all for the purpose of applying the term limit. Under Art. X,
8, voluntary renunciation of the office is not considered as an interruption in the
continuity of his service for the full term only if the term is one for which he was
elected. Since A is only completing the service of the term for which the deceased and
not he was elected. A cannot be considered to have completed one term. His
resignation constitutes an interruption of the full term.
Case No. 2. Suppose B is elected Mayor and, during his first term, he is twice
suspended for misconduct for a total of 1 year. If he is twice reelected after that, can
he run for one more term in the next election?
Yes, because he has served only two full terms successively.
In both cases, the mayor is entitled to run for reelection because the two conditions for the
application of the disqualification provisions have not concurred, namely, that the local official
concerned has been elected three consecutive times and that he has fully served three consecutive
terms. In the first case, even if the local official is considered to have served three full terms
notwithstanding his resignation before the end of the first term, the fact remains that he has not
been elected three times. In the second case, the local official has been elected three consecutive
times, but he has not fully served three consecutive terms.

Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a
total failure of the two conditions to concur for the purpose of applying Art. X
8. Suppose he is twice elected after that term, is he qualified to run again in the next
election?
Yes, because he was not elected to the office of the mayor in the first term but simply
found himself thrust into it by operation of law. Neither had he served the full term
because he only continued the service, interrupted by the death , of the deceased
mayor.
To consider C in the third case to have served the first term in full and therefore ineligible to
run a third time for reelection would be not only to falsify reality but also to unduly restrict the
right of the people to choose whom they wish to govern them. If the vice-mayor turns out to be a
bad mayor, the people can remedy the situation by simply not reelecting him for another
term. But if, on the other hand, he proves to be a good mayor, there will be no way the people
can return him to office (even if it is just the third time he is standing for reelection) if his service
of the first term is counted as one of the purpose of applying the term limit.
To consider C as eligible for reelection would be in accord with the understanding of the
Constitutional Commission that while the people should be protected from the evils that a
monopoly of political power may bring about, care should be taken that their freedom of choice
is not unduly curtailed.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.

EN BANC

[G.R. Nos. 153991-92. October 16, 2003]

ANWAR BERUA BALINDONG, petitioner, vs. COMMISSION ON

ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF THE
MUNICIPALITY OF MALABANG and AKLIMA JAAFAR
BALINDONG, respondents.
DECISION
TINGA, J.:

Before us is a petition where the petitioner, Anwar Balindong (Anwar), a

candidate for Mayor of Malabang, Lanao del Sur, seeks to set aside
the Resolution dated July 4, 2002 of the Commission on Elections (COMELEC) en
banc ordering the Municipal Board of Canvassers (MBC) to immediately
reconvene, totally exclude from canvass the election return for a certain precinct
and count eighty-eight (88) votes in the election return for another precinct, not in
favor of Anwar but another mayoralty candidate by the name of Amir-Oden
Balindong.
[1]

[2]

Petitioner, private respondent Aklima Jaafar Balindong (Aklima), and AmirOden Balindong are half brothers. They were three (3) of the nine (9)
candidates for the position of Mayor of the Municipality of Malabang in the
May 14, 2001 elections.
[3]

[4]

On May 17, 2001, the MBC convened with all parties represented by their
lawyers and/or authorized representative, so it stated. Before the start of the
canvassing, the lawyers of the candidates and political parties who were
present agreed that all election returns should be opened and appreciated
immediately so that they could determine the genuineness and authenticity
thereof. They stressed that they had to complete the canvass at the soonest
possible time because they had to attend the canvassing in the other
municipalities of Lanao del Sur, there being a shortage of lawyers in the
province.
[5]

[6]

[7]

During the canvassing on the same day, Aklima, through his

representative, Bassit Balindong (Bassit), filed an objection to the inclusion of
the election return for Precinct 127A/128A due to fraud and irregularity in the
conduct of election, being voted upon by those who are not registered thereof
[8]

(sic) and violence, threat and intimidation against watchers of our (their) party
and the registered voters thereof. Bassit also objected to the inclusion of the
election return for Precinct 18A for being voted upon by non-registered person
(sic) and non existent Barangay, all the registered voters are nonexistent. Also on the same day, Aklima filed a Petition to disqualify the
chairman of the MBC, Parok P. Asira, for alleged bias and partiality, but the
same was denied for lack of merit in the Order/Ruling of the MBC of even
date.
[9]

[10]

[11]

When the MBC reconvened on May 18, 2001, Atty. Badelles Macaan,
acting as counsel for Aklima, filed an objection to the inclusion of all the
election returns, invoking as grounds the illegal proceedings of the Board of
Canvassers and violation of Section 25(l) of COMELEC Resolution No.
3848. The MBC denied the objection, noting that Aklima as petitioner therein
was estopped from questioning the proceedings of the MBC since he
expressly agreed to and voluntarily participated in the proceedings and that he
did not assail the genuineness and accuracy of the election returns and the
votes reflected therein.
[12]

[13]

[14]

On the same day, Aklima filed before the MBC his Offer and Admission of
Evidence, attaching thereto the minutes of the MBC proceedings on May 17,
2001 to prove the illegality thereof, and a Notice of Appeal. Nevertheless, the
MBC proceeded with the canvassing of returns. Apparently, this prompted
Aklima to file before the COMELEC on May 21, 2001 an Appeal, urging that
the proceedings of the MBC be declared illegal and a new board of
canvassers constituted to canvass the election returns for the various
precincts of Malabang. This was docketed as SPC No. 01-063.
[15]

[16]

[17]

On May 24, 2001, the MBC proclaimed the winning municipal

candidates, with Anwar winning as Mayor by a margin of fifty-two (52) votes
over Aklima.
[18]

[19]

Aklima filed another Petition on May 28, 2001, praying that the MBC be
ordered to reconvene and re-canvass, this time, the election returns in 38
precincts only, without stating, however, their specific precinct numbers; the
proceedings of the MBC declared illegal; the municipal canvass transferred to
a safer venue; and, the proclamation of any municipal candidate suspended
or annulled. The petition was docketed as SPC No. 01-175.
[20]

In a bid to amend his petition in SPC No. 01-175, Aklima filed the
corresponding motion for leave. In his Amended Petition, Aklima further
whittled down the number of contested election returns, this time seeking the
annulment of the election results in five (5) precincts only, namely: Precincts
18A, 80A, 127A/128A, 133A/134A and 47A/48A. According to him, the
[21]

[22]

election returns in the five (5) precincts were products of fraud, forgery,
terrorism and other forms of irregularities. He likewise sought the annulment
of the proclamation of Anwar.
At the hearing on June 29, 2001, the COMELEC ordered the consolidation
of SPC No. 01-063 and 01-175.
Stressing that the petitions questioned the regularity of the canvassing and
the genuineness of the election returns for Precincts 80A and 47A/48A, the
COMELEC per the Order of October 15, 2001 concluded that the petitions
presented pre-proclamation controversies. Accordingly, the poll body ordered
that the cases be heard and directed the appearance of the chairmen of the
boards of election inspectors (BEIs) of the two precincts and the presentation
of the ballot box containing the copies of the election returns used by the
MBC. The COMELEC also ordered Aklima to amend his petition in SPC No.
01-175 to include the other proclaimed election winners as respondents.
[23]

At the scheduled hearing on December 13, 2001 before the COMELEC,

Anwar argued that since Aklima failed to object to the inclusion of the returns
for Precincts 80A and 47A/48A at the MBC, much less appeal the MBC ruling
to the COMELEC, which failure was fatal according to him, the COMELEC
could no longer exclude the returns. After the oral arguments, the
COMELEC examined the canvassing copies of the election returns for
Precincts 80A and 47A/48A which were used by the MBC. Thereafter, it
declared the cases submitted for resolution.
[24]

[25]

[26]

Nonetheless, Anwar filed an Opposition and Memorandum where he

posited that the COMELEC en banc had no jurisdiction over the petitions
which both involved pre-proclamation controversies in view of the
provision of the Constitution on the matter. He also reiterated his position
that the inclusion for canvass of the returns for Precincts 80A and 47A/48A
could no longer be assailed.
[27]

[28]

On
July
4,
2002,
the
COMELEC
promulgated
the
challenged Resolution, totally excluding the election return for Precinct 80A
with Serial No. 68210015 and awarding to candidate Amir-Oden Balindong all
the 88 votes in the election return for Precinct 47A/48A with Serial No.
6821008, which were earlier credited by the MBC to Anwar. The Resolution is
anchored on the following findings:
[29]

An examination of the Election Return with Serial No. 68210008 from Precinct No.
47A/48A reveals that it contains erasures with respect to the votes of private
respondent mayoralty candidate Amir-Oden S. Balindong (Amir-Oden). The number
of votes for him in taras and in figures and words was crossed-out while the zero (0)

vote for private respondent Anwar Balindong was superimposed and changed to
eighty-eight (88) in words and figures. Also, on the first column adjacent to the name
of Anwar Balindong, it is apparent that the figure zero (0) was superimposed by five
(5) bars. The members of the Board of Election Inspectors (BEI) should have
countersigned these alterations, assuming they were made for the purpose of
correction.
On the other hand, a perusal of the election return for Precinct No. 80A with Serial
No. 68210015 gives the impression that the votes obtained by private respondent
Amir-Oden Balindong as well as the signature of the member of the BEI reflected in
the columns were erased by a white substance. The same holds true even with respect
to the votes garnered by vice-mayoralty candidates Kamar Mauyag and Maongca
Paramata.
[30]

Thus, the COMELEC ordered the MBC to reconvene, take into account its
directives with respect to the two (2) returns and thereafter proclaim the
winning mayoralty candidate.
[31]

Not satisfied with the COMELEC Resolution, Anwar filed the present
petition. He faults the COMELEC for having acted with grave abuse of
discretion amounting to lack or excess of jurisdiction, firstly, in taking
cognizance of the consolidated cases in the first instance without referring
them to either one of its divisions, in violation of the Constitution; and
secondly, in taking action on the returns for Precincts 80A and 47A/48A
although Aklima did not object to their inclusion for canvass at the MBC level,
thereby violating Republic Act No. 7166 (R.A. No. 7166), aggravated at that
by its selective or disparate treatment of the two (2) returns. He adds that
even assuming that the COMELEC could take cognizance of the returns
despite
Aklimas
failure
to
object
thereto
at
the MBC level,
the proper course of action was to order the BEIs to recount the votes
in consonance with Section 235 of the Omnibus Election Code (OEC).
[32]

In his Comment dated August 19, 2002, Aklima insists that the
COMELEC en banc had jurisdiction to hear and decide the consolidated
cases by virtue of COMELEC Resolution No. 0046 dated January 19,
2000. Asserting that the COMELEC en banc did not commit grave abuse of
discretion for not ordering a recount of the ballots in Precincts 80A and
47A/48A, he posits that it is beyond the authority of the COMELEC to
order motu propio a recount of the ballots since under the law it is incumbent
upon the board of canvassers or any affected candidate to initiate the ballot
recount.
[33]

[34]

Subsequent to the filing of the present petition before this Court, on

August 21, 2002, the COMELEC issued an Order constituting a new
MBC. Anwar filed a motion to hold the implementation of the Order in
abeyance, which the COMELEC granted in its Order dated September 18,
2002.
[35]

[36]

[37]

The issues in this case are the following:

1) Whether the COMELEC en banc had jurisdiction over pre-proclamation
controversies at the first instance;
2) Whether the COMELEC had authority to pass upon the validity of the two
(2) election returns which were not objected to before the canvassing
board; and
3) Whether the COMELEC in this instance acted properly in declaring the
two (2) returns tampered and thereafter totally excluding the first return,
on one hand, and ordering the votes in the second return credited from
Anwar to another candidate, on the other, without examining the other
copies of the returns or ordering a recount of the ballots by the BEIs
concerned.
The first issue is both constitutional and jurisdictional.
The 1987 Constitution, in Section 3, Article IX-C thereof, has established
the two-tiered organizational and functional structure of the COMELEC. The
provision requires that election cases, including pre-proclamation
controversies, should be heard and decided first at the division level. It reads,
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. [Emphasis supplied]
This Court has consistently ruled that the requirement mandating the
hearing and decision of election cases, including pre-proclamation
controversies, at the first instance by a division of the COMELEC, and not by
the poll body as a whole, is mandatory and jurisdictional. Indeed, as the
above-quoted Constitutional provision is couched in simple language and
yields to no other interpretation than what its plain meaning presents, it is
imperative for this Court to enforce its indelible import and spirit to the fullest,

any decision, resolution or proceeding of the COMELEC which runs counter to

it notwithstanding.
In the definitive case of Sarmiento v. COMELEC, this Court explicitly held
that the COMELEC en banc does not have the requisite authority to hear and
decide pre-proclamation controversies at the first instance. The Court
declared:
[38]

It is clear from the abovequoted provision of the 1987 Constitution that election cases
include pre-proclamation controversies, and all such cases must first be heard and
decided by a Division of the Commission. The Commission sitting en banc, does not
have the authority to hear and decide the same at the first instance.
Indisputably then, the COMELEC en banc acted without jurisdiction, or with grave
abuse of discretion, when it resolved the appeals of petitioners in the abovementioned
Special Cases without first referring them to any of its Divisions. Said resolutions are,
therefore, null and void and must be set aside. Consequently, the appeals are deemed
pending before the Commission for proper referral to a Division.
[39]

The Sarmiento ruling has been reiterated in several cases. For instance,
in Abad
v.
COMELEC, the
Court
ruled
that
COMELEC
Resolution No. 2824, whichallows direct recourse to the COMELEC en
banc from decisions of Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts, is not in accord but in conflict with Section 3,
Article IX-C of the 1987 Constitution. Hence, the Court set aside the
Resolution of the COMELEC en banc and ordered the Commission to assign
the case to one of its divisions. Likewise, in Soller v. COMELEC, this Court
held that the power to hear and decide election cases, including preproclamation controversies, at the first instance pertains to the divisions of the
Commission and any decision by the Commission en banc as regards election
cases, including pre-proclamation controversies, and incidents thereof
decided or resolved by it at the first instance is null and void.
[40]

[41]

[42]

Simply put, the Commission en banc does not have jurisdiction in the first
instance, whether original or appellate, over election cases, pre-proclamation
controversies and incidents thereof. When such disputes are filed before or
elevated to the Commission, they have to be heard and adjudicated first at the
division level.
Doubtless, SPC No. 01-063 and 01-175 are pre-proclamation
controversies, involving as they do the alleged illegality of the canvassing
proceedings and the purported tampering of certain election returns. This is
clear from the OEC.
[43]

The COMELEC itself characterized the consolidated cases as preproclamation controversies in its Order of October 15, 2001 and in the
assailed Resolution.
[44]

[45]

Apparently, in assuming jurisdiction over the consolidated cases, the

COMELEC relied on its Resolution No. 00-0046 dated January 19, 2000,
which states, citingLaodenio v. COMELEC, that the COMELEC en banc may
directly assume jurisdiction over petitions to declare illegal the composition or
proceedings of the board of canvassers.
[46]

[47]

Significantly, however, in Laodenio the jurisdiction of the COMELEC en

banc to decide pre-proclamation controversies at the first instance was not
raised as an issue.In fact, the Court did not declare that the COMELEC en
banc has jurisdiction to hear and decide at the first instance pre-proclamation
controversies, including controversies relating to the illegal proceedings of the
board of canvassers. Thus, the reference to Laodenio in COMELEC
Resolution No. 00-0046 is utterly misplaced.
Moreover, it is worthy of note that Aklima has abandoned the alleged
illegality of the MBC proceedings as a ground for its invalidation. He filed an
amended petition in SPC No. 01-175, seeking at that time the exclusion of the
returns in five (5) precincts on the ground of electoral frauds and terrorism,
and deleting his earlier prayer for the annulment of the MBC proceedings. At
the hearing on December 13, 2001 before the COMELEC, Aklimas counsel
confirmed that their focus is on the returns for Precincts 80A and
47A/48A. He even attributed his failure to implead the other affected winning
candidates by way of amendment to the petition, as directed in theOrder of
October 15, 2001, to the elimination of the issue of whether the MBC
proceedings were illegal.
[48]

[49]

[50]

On its part, the COMELEC per the assailed Resolution in essence

similarly recognized that Aklimas petitions had metamorphosed into a simple
petition questioning the two (2) returns on the ground of fraud. In the same
breath, it declared that the procedure adopted by the MBC was not illegal per
se.
[51]

Nevertheless, the consolidated cases retained their pre-proclamation

character. As noted earlier, tampered or falsified election returns are among
the issues that may be raised in a pre-proclamation controversy. The
COMELEC itself confirmed this characterization.
[52]

[53]

Conformably with the Sarmiento ruling, it was incumbent upon the

COMELEC to refer the consolidated cases to a division thereof. As the
COMELEC failed to do so, we hold that it acted without jurisdiction in taking

cognizance of the consolidated cases at the first instance. Thus, the

assailed Resolution is null and void.
An order directing the COMELEC to assign the consolidated cases to
either one of its divisions for further proceedings is unmistakably in order. This
makes it relevant still, despite the earlier pronouncement herein that the
assailed COMELEC Resolution is void, to discuss the remaining issues for
they relate to the proper treatment which should be accorded to the
questioned returns at the COMELEC division level and the appropriate course
of action which should be taken at the canvassing board level or at the BEI, if
need be.
Under R.A. No. 7166, matters raised under Sections 233, 234, 235 and
236 of the OEC in relation to the preparation, transmission, receipt, custody
and appreciation of the election returns shall be brought in the first instance
before the board of canvassers only. Thus, in Siquian vs. COMELEC this
Court held:
[54]

[55]

Section 20 of R.A. No. 7166 and Section 36 of COMELEC Resolution 2962 require
that an oral objection to the inclusion or exclusion of election returns in the
canvassing shall be submitted to the Chairman of the Board of Canvassers at the time
the questioned return is presented for inclusion in the canvass. It is not denied by
petitioner that the objections interposed were made after the election returns in certain
precincts were included in the canvass. Such belated objections are fatal to petitioners
cause. Compliance with the period set for objections on exclusion and inclusion of
election returns is mandatory. Otherwise, to allow objections after the canvassing
would be to open the floodgates to schemes designed to delay the proclamation and
frustrate the electorates will by some candidates who feel that the only way to fight
for a lost cause is to delay the proclamation of the winner. It should be noted that
proceedings before the Board of Canvassers is summary in nature which is why the
law grants the parties a short period to submit objections and the Board a short period
to rule on matters brought to them
[56]

In the case at bar, at no instance did Aklima claim that he specifically

objected to the inclusion of the returns for Precincts 80A and 47A/48A at the
MBC level. Neither did he even dispute Anwars assertion that he failed to
make such claim before the canvassing board. In fact, it was only in the
amended petition in SPC No. 01-175 that he alleged that the election returns
for the two (2) precincts were falsified. Thus, it was beyond the authority of the
COMELEC to entertain the belated objections to the election returns.
Moreover, based on Section 235 of the OEC which this Court elucidated
on along with Section 236 in Patoray v. COMELEC, in cases where the
[57]

election returns appear to have been tampered with, altered or falsified, the
prescribed modality is for the COMELEC to examine the other copies of the
questioned returns and if the other copies are likewise tampered with, altered,
falsified, or otherwise spurious, after having given notice to all candidates and
satisfied itself that the integrity of the ballot box and of the ballots therein have
been duly preserved, to order a recount of the votes cast, prepare a new
return which shall be used by the board of canvassers as basis for the
canvass, and direct the proclamation of the winner accordingly.
The COMELEC failed to observe the foregoing procedure. As admitted in
its Order dated December 13, 2001, it examined only the election returns
used by the MBC, omitting to take a look at the other copies of the questioned
returns or ordering a pre-proclamation recount of the votes of the candidates
affected. The failure to take either step renders the poll bodys action
consisting of the outright exclusion of the return for Precinct 80A and the
award of 88 votes in the return for Precinct 47A/48A highly questionable.
[58]

The precipitate exclusion from canvass of the return for Precinct 80A
resulted in the unjustified disenfranchisement of the voters thereof. This could
have been avoided had the COMELEC availed of the other courses of action
mentioned in the law, namely: the examination of the other copies of the
return and the recount of the votes by the BEI.
As for the return for Precinct 47A/48A, the COMELECs move
unceremoniously deprived Anwar of 88 precious votes which were credited to
a non-contender, Amir-Oden Balindong. On record is the Joint Affidavit of
the members of the BEI of the precinct attesting to the fact that since it was
Anwar, not Amir-Oden Balindong, who garnered 88 votes they had to rectify
the mistaken entries they made on the lines in the return opposite the names
of Anwar and Amir-Oden Balindong and initial the corresponding corrections,
which they did. Also on record are the Statement of Votes covering the
canvass of the 84 election precincts of Malabang which show that Amir-Oden
Balindong garnered a total of 11 votes only in eight (8) precincts, receiving
zero (0) vote or no vote at all in the other 76 precincts, while Anwar garnered
votes in all the precincts, receiving as many as 125 votes in a single
precinct. All these should have prompted the COMELEC to examine the other
copies of the returns or order a vote recount, as ordained in Section 235 of the
OEC.
[59]

[60]

The COMELEC chose, however, to pursue a selective or disparate

approach to the two (2) returns. It excluded the return for Precinct 80A outright
but opted to deny Anwar all of the 88 votes in the return for Precinct

47A/48A. Obviously, the twin but divergent moves unless set aside could
make Aklima win according to the COMELECs abbreviated count.
In sum, the COMELEC acted without jurisdiction, exceeded its jurisdiction
and committed grave abuse of discretion in promulgating the
assailed Resolution.
WHEREFORE, the Petition is GRANTED. The Resolution of the
Commission on Elections dated July 4, 2002 is SET ASIDE. The Commission
is ordered to assign SPC No. 01-063 and SPC No. 01-175 to one of its
divisions, which is hereby directed to resolve the same with deliberate
dispatch in accordance with this Decision.
SO ORDERED.

EN BANC

[G.R. No. 124089. November 13, 1996]

HADJI NOR BASHER L. HASSAN, petitioner, vs. COMMISSION ON

ELECTIONS, MANGONDAYA P. HASSAN BUATAN; COMELEC
MONITORING AND SUPERVISING TEAM, REGION XII;
MADALUM ELECTION OFFICER; MADALUM MUNICIPAL BOARD
OF CANVASSERS; REGULAR and SUBSTITUTE MEMBERS,
BOARDS OF ELECTION INSPECTORS FOR PRECINCTS 7-A, 9,
9-A, 10, 13 and 14, MADALUM, care of REGIONAL ELECTION
DIRECTOR, REGION XII; CANDIDATES FOR VICE-MAYOR OSOP
KIRAM, ANGNI ERSA AND IBRAHIM ALAWI, and CANDIDATES
FOR COUNCILOR USNGAN MACASAMBIT, MALIK M. COSAIN,
FARIDA S. TANTAO, ALIM A. PATARANDANG, HALIL D.
DAISANGKAY, BINOLAWAN L. HASSAN, and ALEX M.
ASIZ, respondents.
DECISION
KAPUNAN, J.:

Petitioner, Hadji Nor Basher L. Hassan, and private respondent,

Mangondaya P. Hassan Buatan were candidates for the Office of the ViceMayor while the other private respondents were candidates for councilors in
Madalum, Lanao del Sur in the last regular local elections of May 8, 1995.
However, due to threats of violence and terrorism in the area there was failure
of elections in six out of twenty-four precincts in Madalum.
The ballot boxes were burned and there were threats by unidentified
persons in Precinct No. 7-A. In Precinct Nos. 9, 9-A, 10, 13, and 14, elections
did not take place because the members of the Board of Election Inspectors
(BEI) failed to report to their respective polling places.
Thus, the Monitoring Supervising Team (COMELEC Team) headed by
Regional Election Director Virgilio O. Garcillano recommended to the
COMELEC the holding of special elections in said precincts. The special
elections were thereby set on May 27, 1995. On said date, however, the
members of the BEI again failed to report for duty in their respective polling
places.

In an Order dated May 28, 1995, the COMELEC Team re-scheduled the
elections in these precincts for May 29, 1995 at Liangan Elementary (Arabic)
School, which is 15 kilometers away from the designated polling places.
On May 29, 1995, the members of the Board did not again report for duty.
Hence, the COMELEC Team was constrained to appoint police/military
personnel to act as substitute members so as to push through with the
elections.
In the May 8 elections, the results for the Office of the Vice-Mayor were as
follows:
1. MANGONDAYA HASSAN - 884
2. OSOP KIRAM - 816
3. PETITIONER HASSAN - 801
4. ESRA S. ANGNI - 340
5. IBRAHIM ALAWI - 185
In the May 29 special elections held in Precinct Nos. 9, 9-A, 10, 13 and 14
the following votes were obtained.
1. M. HASSAN - 214
2. OSOP KIRAM - 17
3. N. HASSAN - 78
4. ANGNI ESRA -

5. IBRAHIM ALAWI - 0
Hence the final results are as follows:
1. MANGONDAYA HASSAN - 1,098
2. PETITIONER NOR HASSAN - 879
3. OSOP KIRAM - 833
4. ANGNI ESRA - 341

5. IBRAHIM ALAWI - 185[1]

On June 10, 1995, petitioner Hadji Nor Basher L. Hassan filed a petition
with the COMELEC docketed as SPA 95-283 assailing the validity of the May
29 re-scheduled special elections on the following grounds:
a) The voting which started at 10:00 A.M. was forcibly ended at around 2:00
p.m. because of exchanges of rapid gunfiring and grenade launching between
unknown elements and the Army or PNP soldiers;
b) The voting was moved to Liangan Elementary (Arabic) School, located about 15
kilometers away from the respective polling places;
c) Notices in the transfer of venue of the voting was sent only on the night of May 28,
1995 and only to a few but not to all concerned;
d) Only 328 out of the 1,645 registered voters of said 5 precincts were able to vote constituting
only about 21.1%[2] and disenfranchising 78% of the registered voters thereof; and
e) The regular members of the BEI did not report for duty and were substituted by military
personnel.[3]

At the same time, private respondent Mangondaya P. Hassan Buatan also

filed a petition with the COMELEC (docketed as SPA 95-286) assailing the
inaction of the Municipal Board of Canvassers of Madalum on his petition to
be proclaimed the winning vice-mayoralty candidate.
On February 21, 1996 the COMELEC en banc issued a resolution denying
the petition for a declaration of failure of elections and to call special elections
in Precinct Nos. 7-A (Abaga), 9, 9-A, 10, 13 and 14, in Madalum, Lanao del
Sur. It disposed of the consolidated petitions (SPA 95-283 and SPA 95-286)
by directing the Regional Election Director of Region XII in consultation with
the Commissioner-in-Charge of Region XII to reconstitute the Municipal Board
of Canvassers of Madalum, Lanao del Sur, of which shall convene forthwith
and complete the canvass by proclaiming the winning vice-mayoralty
candidate, Mangondaya P. Hassan Buatan, and eight winning candidates for
member, Sangguniang Bayan of that municipality.[4]
Thus, petitioner went up to this Court assailing the aforesaid resolution
with a prayer for Temporary Restraining Order (TRO) to enjoin the
proclamation of the winning candidates.
On March 26, 1996, the Court issued a Temporary Restraining Order as
prayed for pending the resolution of the issue as to whether or not the

COMELEC erred in not declaring a failure of elections on May 29, 1995 in

Madalum, Lanao del Sur.
In its Resolution dated February 21, 1996, the COMELEC ruled that the
petition to declare a failure of elections in Madalum has no valid grounds since
the outcome of the special elections in the said precincts would nonetheless
not change the final results of the elections in petitioners favor.
The difference between the first and second place is only 219 votes. The
only precinct left which was not counted since the ballot box was burned was
Precinct 7-A and Precinct 7-A has 219 voters. The COMELEC opined that it
would be quite impossible for all 219 voters to have voted for petitioner.
Hence, whether or not a special election would be held, Mangondaya P.
Hassan Buatan would in all probability still come out the winner.
The authority of the COMELEC to declare a failure of election is provided
by Section 6 of the Omnibus Election Code, which reads:
SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud,
or other analogous causes the election in any polling place has not been held on the
date fixed, or had been suspended before the hour fixed by law for the closing of the
voting, or after the voting and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such election results in a failure
to elect, and in any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or continuation
of the election not held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect. (Sec. 7, 1978 EC)
In several cases,[5] the Court has ruled that the pre-conditions for declaring
a failure of election are: (1) that no voting has been held in any precinct or
precincts because of force majeure, violence or terrorism, and (2) that the
votes not cast therein suffice to affect the results of the elections. The
concurrence of these two (2) circumstances are required to justify the calling
of a special election.
Mindful of these two (2) requirements, we rule in favor of the petitioner.
The COMELEC explained that:
Jurisprudence holds that terrorism may not as a rule be invoked to declare a failure of elections
and to disenfranchise the greater number of the electorate through the misdeeds of only a relative
few. Otherwise elections will never be carried out with the resultant disenfranchisement of the

innocent voters, for the losers will always cry fraud and terrorism. It has been ruled that
annulment of election results and consequent disenfranchisement of voters is a very stringent
one. The power to annul an election should be exercised with the greatest care and
circumspection and only in extreme cases and under circumstances which demonstrate beyond
doubt and to the fullest degree of fundamental and wanton disregard of the law. (Grand Alliance
for Democracy [GAD] vs. Comelec, 150 SCRA 665; Reyes vs. Mamba, HRET Case No. 92-022,
September 14, 1994).[6]

While we are aware of the aforesaid rule, the COMELEC can not turn a
blind eye to the fact that terrorism was so prevalent in the area, sufficient
enough to declare that no voting actually occurred on May 29, 1995 in the
areas concerned.
It must be recalled that elections had to be set for the third time because
no members of the Board of Election Inspectors (BEI) reported for duty due to
impending threats of violence in the area. This then prompted COMELEC to
deploy military men to act as substitute members just so elections could be
held; and to thwart these threats of violence, the COMELEC Team, moreover,
decided to transfer the polling places to Liangan Elementary School which
was 15 kilometers away from the polling place. Nonetheless, voting on May
29 had to be suspended before the hour fixed by law for the closing of the
voting because of threats of violence, grenade launching and gunfires. The
Memorandum and Offer of Evidence submitted by the petitioner are quite
revealing, among which are the following:
(1) EXH. A Memorandum of the respondent Comelec Team, dated June 4, 1995,
recommending the holding of special election in Pct. 7-A, because the ballot box with
ballots were set on fire by unknown men amounting to failure of election also;
(2) EXH B Certification by the Madalum Acting Election Officer on the appointment
of substitute members, who are military personnel, in the 5 precincts involved in this
case, because of failure of the regular members thereof to report for duty in the May
29, 1995 special election;
(3) EXH. C Minutes of Voting for Pct. 9, showing that 59 of the 418 registered voters
voted; voting started at 11:40 a.m. and ended at 2:25 p.m.; only 58 valid ballots were
found inside the ballot box; and the reported violence and terrorism, which reads:
UNTOWARD INCIDENTS HAPPENED.
AT ABOUT 2: 15 PM MAY 29, 1995, WHILE THE VOTING IS BEING
CONDUCTED, AN M-79 OR M203 GRENADE LAUNCHER WAS FIRED
BEHIND THE WOODEN SCHOOL BUILDING WHERE PRECINCT NO. 9, 9-A,

AND 13, 14 WERE LOCATED. THIS WAS FOLLOWED BY RAPID FIRE FROM
THE UNIDENTIFIED GROUP. WE PUT ALL THE ELECTION
PARAPHERNALIA AND FORMS INSIDE THE BALLOT BOX AND
PADLOCKED THE SAME. THERE WERE ABOUT 5 GRENADE LAUNCHERS
WERE FIRED AT THE SCHOOL, THE MILITARY SECURITY EXCHANGED
FIRE TO THE GROUP. IT LASTED FOR ABOUT 30 MINUTES. WE LEFT THE
SCHOOL (LIANGAN ARABIC SCHOOL) AT ABOUT 2:45 PM AND
PROCEEDED TO MUNICIPAL HALL OF MADALUM. WE LEFT MADALUM
AT 3:15 PM AND ARRIVED AT MARAWI CITY AT ABOUT 5:00 PM (p. 4)
xxx
(8) EXH. H Joint Affidavit of Hassans watchers, dated June 11, 1995, corroborating
that:
4. That at about 2:00 p.m. unidentified gunmen began indiscriminately fired their guns
around the polling place which provoked the military serving the precincts to close the
ballot boxes and the other military men guarding the polling place reacted and also
fired their guns which caused panic to the voters around;
That to our evaluation at the closing of the voting at 2:00 p.m. only more or less 20 percent of the
registered voters in each of the five precincts have casted their votes;.[7]

The peculiar situation of Madalum can not be overstated. Notwithstanding,

the notice given on the afternoon of May 28 resetting the special elections to
May 29 and transferring the venue of the elections 15 kilometers away from
the farthest barangay/school was too short resulting to the disenfranchisement
of voters. Out of the 1,546 registered voters in the five (5) precincts only 328
actually voted. The COMELEC justified this short notice in this light:
x x x. Viewed from ordinary human experience and the election culture obtaining in the locality,
there can be no doubt that, the date on which special elections were to be held after one that
previously failed, was high in the agenda of concerns and interests of the constituents involved.
In Sabeniano, et al. vs. Comelec, 101 SCRA 289, 301 and Quilala vs. Comelec, 188 SCRA 502,
the Supreme Court, referring to election processes and incidents as matters directly affecting the
political fortunes of a candidate, held that it is a matter of judicial notice that the candidates, their
representatives and watchers station or deploy themselves among the various voting and
canvassing centers to watch the proceedings from the first hour of voting until the completion of
the canvassing. In instant case, the May 27 special elections failed and were reset for May 29,
1995. Petitioner Hassan cannot claim that the later notice was not good enough for him. He was
aware and ready for the May 27 special elections. He was just as alert and prepared for the May
29 special elections as these are matters directly affecting his political fortunes.[8]

We cannot agree with the COMELEC that petitioner, his followers or the
constituents must be charged with notice of the special elections to be held
because of the failure of the two (2) previous elections. To require the voters
to come to the polls on such short notice was highly impracticable. In a place
marred by violence, it was necessary for the voters to be given sufficient time
to be notified of the changes and prepare themselves for the eventuality.
It is essential to the validity of the election that the voters have notice in
some form, either actual or constructive of the time, place and purpose
thereof.[9] The time for holding it must be authoritatively designated in
advance. The requirement of notice even becomes stricter in cases of special
elections where it was called by some authority after the happening of a
condition precedent, or at least there must be a substantial compliance
therewith so that it may fairly and reasonably be said that the purpose of the
statute has been carried into effect.[10] The sufficiency of notice is determined
on whether the voters generally have knowledge of the time, place and
purpose of the elections so as to give them full opportunity to attend the polls
and express their will or on the other hand, whether the omission resulted in
depriving a sufficient number of the qualified electors of the opportunity of
exercising their franchise so as to change the result of the election.[11]
From the foregoing, it is not difficult for us to rule that there was
insufficiency of notice given as to the time and transfer of the polling places.
The low turnout of voters is more than sufficient proof that the elections
conducted on that day was vitiated. A less than a days notice of time and
transfer of polling places 15 kilometers away from the original polls certainly
deprived the electors the opportunity to participate in the elections.
Respondents argue that since voting actually occurred on May 29, the
substantial requirement of notice was complied with, which should not
necessarily invalidate the elections; more so, if the votes not cast therein
suffice to affect the results of the elections.
We disagree. It was quite sweeping and illogical for the COMELEC to
state that the votes uncast would not have in any way affected the results of
the elections. While the difference between the two candidates is only 219 out
of the votes actually cast, the COMELEC totally ignored the fact that there
were more than a thousand registered voters who failed to vote. Aside from
Precinct 7-A where the ballot box had been burned and which had 219 voters,
the COMELEC failed to consider the disenfranchisement of about 78% of the
registered voters in the five (5) precincts of Madalum. Out of the 1,546
registered voters, only 328 actually voted because of the insufficient and
ineffectual notice given of the time and place of elections. Whether or not

another special election would turn the tide in petitioners favor is of no

moment because what is more important is that the electors should not have
been deprived of their right to vote which was rather apparent in the case at
bar.
Finally, in Lucero v. COMELEC,[12] we stated that:
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.
The re-scheduling of the special elections from May 27 to May 29, was
done in uncommon haste and unreasonably too close for all voters to be
notified of the changes, not only as to the date but as to the designated polling
place. We must agree with the dissenting opinion that even in highly
urbanized areas, the dissemination of notices poses to be a problem. In the
absence of proof that actual notice of the special elections has reached a
great number of voters, we are constrained to consider the May 29 elections
as invalid. If only to ascertain the will of the people and to prevent that will
from being muted, it is necessary that a special election be held in view of the
failure of elections in Madalum, Lanao del Sur.
WHEREFORE, the petition is GRANTED.
(1) The COMELEC is hereby enjoined from proclaiming the winners for the Office of
Vice-Mayor and Councilors respectively; and
(2) The COMELEC is ORDERED to conduct special elections in Madalum, Lanao del
Sur as soon as possible.

SO ORDERED.