II.
Election Law
A. Suffrage
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
A.M. No. 74-MJ July 30, 1976
SALVADOR LACSON, JR., complainant,
vs.
RAMON POSADAS, Municipal Judge, of Talisay, Negros
Occidental, respondent.
ANTONIO, J:
Respondent Municipal Judge Ramon Posadas, of Talisay
Negros Occidental, is charged in a verified complaint by
Salvador Lacson, Jr. with (a) ignorance of the law, (b)
partiality, and (c) violation of the Election Code of 1971.
The Executive Judge, to whom this case was referred for
investigation, report and recommendation, found the
charges of ignorance of the law and partiality to be without
factual basis. He, however, found that respondent Judge
has failed to comply with the requirements of Section 136 of
the Election Code of 1971, which provides:
Any person who has been refused registration
or whose name has been stricken out from the
permanent list of voters may at any time
except sixty (60) days before a regular election
or twenty-five (25) days before a special
election, apply to the proper court for an order
directing the election registration board or the
board of inspectors as the case may be, to
include or reinstate his name in the permanent
list of voters, attaching to his application for
inclusion the certificate of the Electron
registration board or the board of inspectors
regarding his case and proof of service of a
copy of his application and of the notice of
hearing thereof upon a member of the said
board (Emphasis supplied.)
In his report of July 17, 1972, the Investigating Judge stated:
Respondent disregarded this requirement and
none of the petitions for inclusion based on
lack of forms contains the attached certificate
of the Chairman or any member of the Board
of Inspectors of the precinct concerned to the
effect that petitioner or petitioners applied for
registration on October 9, 1971 but were
refused registration for lack of registration
forms. While it may be true that the various;
petitions for inclusion contained the sworn
statement of Eduardo Belbes that a copy of
the petition had been served on the members
of the Board of Inspectors of the
corresponding precinct, yet this notice applied
to the original dates of hearing stated in the
Petition and it is reasonable to assume that on
the dates at which the petitions were ordered
reset for hearing by respondent Judge, to wit:
On October 18 for the petitions filed on
October 14; and on October 20 for the
petitions filed on October 19, the Board of
Inspectors were not notified. This is impliedly
admitted by respondent when he expressed
the belief that notice to the Election
Registration Board alone was sufficient, and
that the certificate of the Board of Inspectors to
the effect that the petitioners applied for
registration in the corresponding precinct on
October 9, 1971, but were refused registration
for lack of forms was not necessary inasmuch
as he relied on the testimonies of the
petitioners themselves on that point. Also,
even if respondent was motivated by a desire
to adhere strictly to the requirement of
Comelec Resolution No. RR-938 that inclusion
cases be decided within two (2) days from the
filing of the petition, it would seem that
respondent acted rather hastily in resetting the
inclusion cases filed in the afternoon of
October 19, 1971 for hearing immediately the
following morning or on October 20, 1971. This
is especially true of Election Cases Nos. 93 to
172, except Cases Nos. 162 to 172 (Exhs. 8A
to 8K inasmuch as Mrs. Efren admittedly
informed respondent of the filing of the cases
right the same morning of October 20. Hence it
is not likely that the various members of the
Board of Inspectors could have been notified
to appear and testify that petitioners in fact
appeared before their respective precincts and
were denied registration for lack of forms.
caution dictated that this requirement or this
procedure be followed as this was one sure
way of Identifying the petitioners and
ascertaining whether in fact they applied for
and were refused registration for lack of forms.
True, inclusion and exclusion cases are
summary in nature but the procedure adopted
by respondent Judge provided no safeguard
whatsoever against indiscriminate inclusion.
For he admitted that as long as the petitioners
were present when he called the inclusion
cases for hearing and the respondent Election
Registration Board or the members of the
Board of Inspectors of the precincts concerned
were not present he considered the latter in
default and summarily granted the petition.
This could be the only reason why practically
all the inclusion cases resulted in the issuance
of orders directing the inclusion of the
petitioners now marked as Exhs 'B', 'B-l' to 'B-
54' and, as it turned out, on appeal most of the
petitions were dismissed either for failure of
the petitioners to appear or, as in Cases Nos.
136-153, because the Court found on the
basis of the testimony of the Chairman of
Precinct No, 41 of Talisay that he even had a
surplus of seventeen (17) application forms. 1
In extenuation the Investigating Judge found also that
respondent, in his aforesaid actuations, did so without
improper motive but in good faith.
In our republican system of government, the exercise by the
people of their right of suffrage is the expression of their
sovereign will. It is, therefore, absolutely essential that the
free and voluntary use of this right be effectively protected
by the law and by governmental authority. As stated in an
earlier case: 2
* * * The people in clothing a citizen with the
elective franchise for the purpose of securing a
consistent and perpetual administration of the
government they ordain, charge him with the
performance of a duty in the nature of a public
trust, and in that respect constitute him a
representative of the whole people. This duty
requires that the privilege thus bestowed
should be exercise, not exclusively for the
benefit of the citizen or class of citizens
professing it, but in good faith and with an
 intelligent zeal for the general benefit and Concepcion Jr., J., is on leave.
welfare of the state. (U.S. vs. Cruikshank 92
U.S. 588.) In the last analysis, therefore, the Martin, J., was designated to sit in the Second Division.
inclusion in or exclusion from the permanent
electoral list of any voter concerns not only the
latter in his individual capacity but the public in
general.

In the light of the statutory purpose, the seriousness of

respondent's failure to comply with the requirements of
Section 136 of the electoral law becomes evident. His good
faith or lack of malice is of no avail, considering that in
crimes which are mala prohibita the act alone irrespective of
its motives, constitutes the offense. It appears, however,
that on April 8, 1974, the President of the Philippines
promulgated Presidential Decree No. 433, which grants
general amnesty under certain conditions to public school
teachers, other government officials and employees,
members of the armed forces of the Philippines and other
persons for violation of election laws and other related
statutes in connection with the elections of 1965, 1967,
1969, 1971, and the election of delegates to the
Constitutional Convention.

There is no question that as a consequence of the general

amnesty all persons who violated the election law on the
dates and occasions therein mentioned are relieved of their
criminal liability. 3 In the case at bar, respondent is relieved
of any criminal liability for his aforecited infraction; however,
in the public interest he should be admonished.

WHEREFORE, respondent is hereby admonished that he

should exercise greater care in the observance of the
provisions of existing laws in the discharge of his judicial
duty, and warned that any subsequent misconduct shall be
dealt with more severely.

Fernando (Chairman), Barredo and Aquino, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-33541 January 20, 1972
ABDULGAFAR PUNGUTAN, petitioner,
vs.
BENJAMIN ABUBAKAR, COMMISSION ON ELECTIONS,
and THE PROVINCIAL BOARD OF CANVASSERS OF
SULU. respondents.
Jose W. Diokno and Manuel M. Gonzales for petitioner.
Salonga, Ordoñez, Yap, Sicat and Associates for
respondent Benjamin Abubakar.
Teaño, Garcia and Apostol for respondent COMELEC, etc.
FERNANDO, J.:p
The resolution of respondent Comelec1 now assailed in this
petition for review, was undoubtedly motivated by the
objective of insuring free, orderly and honest elections in the
discharge of its constitutional function to enforce and
administer electoral laws.2 It excluded from the canvass for
the election of delegates for the lone district of the province
of Sulu the returns from 107 precincts of Siasi, 56 precincts
of Tapul, 67 precincts of Parang and 60 precincts of Luuk for
being spurious or manufactured and therefore no returns at
all. Unless set aside then, petitioner Abdulgafar Pungutan,
who otherwise would have been entitled to the last
remaining seat for delegates to the Constitutional
Convention, there being no question as to the election of the
other two delegates,3 would lose out to respondent
Benjamin Abubakar. Petitioner would thus dispute the power
of respondent Commission to exclude such returns as a
result of oral testimony as well as the examination of the
fingerprints and signatures of those who allegedly voted as
the basis for the holding that no election in fact did take
place. This contention is, however, unavailing, in the light of
our holding last month in Usman v. Comelec.4 The other
principal question raised is whether the recognition of such
prerogative on the part of respondent Commission would
contravene the constitutional provision that it cannot pass on
the right to vote. The appropriate answer as will be made
clear is likewise adverse to petitioner. Hence, respondent
Commission must be sustained.
The case had its origin from a petition filed on December 16,
1970, by respondent Abubakar and the other
candidates,5 superseding an earlier one dated December 7,
1970 alleging that in the towns of Siasi, Tapul, Parang and
Luuk, no elections were in effect held in view of massive
violence, terrorism and fraud.6 The respondents named
therein, including now petitioner Pungutan, answered on
December 18, 1970 to the effect that the elections were duly
held in the above-mentioned municipalities and denied the
allegation as to the existence of massive fraud, terrorism
and serious irregularities. The case was duly heard, with
oral testimony from five chairmen of certain precincts in
Tapul, five teachers from Parang, five teachers from Luuk
and three teachers from Siasi, followed by an examination of
the precinct book of voters from said towns and the
fingerprints and signatures of those who voted, as shown at
the back of CE Form No. 1 and CE Form No. 39 for the
1970 elections for the Constitutional Convention.
After reciting the relevant facts, respondent Commission
came to this conclusion: "In the light of the foregoing
findings of the Commission with respect to the manner in
which the elections were conducted in Siasi, Tapul, Parang
and Luuk, the Commission is of the opinion that the
elections in said municipalities were just as bad if not worse
than the elections in Karomatan, Lanao del Norte. Actually
no elections were held in said municipalities as the voting
was done by persons other than the registered voters while
armed men went from precinct to precinct, prepared the
ballots and dictated how the election returns were to be
prepared. The same reasons which compelled the
Commission to reject the returns from Karomatan and to
consider said returns as no returns at all or spurious or
manufactured returns not one notch above returns prepared
at gunpoint (again paraphrasing in the reverse the second
Pacis case) compel us with much greater justification to find
that the returns from Siasi, Tapul, Parang and Luuk are
spurious returns or manufactured returns and no returns at
all and that the elections in said municipalities are
sham."7 The above findings of fact found support in the light
of the competent and credible evidence sustaining that the
most flagrant irregularities did attend the so-called elections
in Siasi, Tapul, Parang and Luuk.
As to Siasi: "In Siasi where there were 21,688 registered
voters it was made to appear that 20,970 had voted.
However, the result of the examination of the thumbmarks
and signatures of those who voted compared with the
fingerprints of the registered voters appearing in their
registration record, CE Form 1 showed that only 460 of the
registered voters had been definitely established to have
actually voted, 131 identified through the thumbmarks and
329 by their signatures. The 11,154 of those who voted
were found to be substitute voters: 7,557 were discovered to
be voters voting in substitution of the registered voters
through their thumbmarks and 3,597 through their
signatures. No opinion was made with respect to the rest of
the votes cast because not all of the 13,282 voters whose
thumbprints could not be analyzed were referred to the NBI
for signature examination. Only 4,631 of these blurred
thumbprints from 28 precincts were referred to the NBI for
signature examination. Examination of these 4,631
signatures revealed that 3,597 were by persons other than
the registered voters, only 329 were by the register voters
and no opinion could be rendered with respect to 705 for
lack of sufficient basis of comparison. In 26 precincts of
Siasi there was 100% voting but not necessarily by the
registered voters. The overall average for the whole town is
96.6% voting. There were 80 persons who were able to vote
without any CE Form 1 or without voting in the name of the
voters registered in the precinct."8
With respect to Tapul: "In Tapul where there were 12,223
registered voters it appeared that 11,575 votes were cast.
197 persons were able to vote without CE Form No. 1
without using the names of registered voters in the precinct.
When the thumbprints corresponding to the 11,575 votes
cast were examined by the Fingerprint Identification Division
of the Commission, only 3 were found to be identical with
the thumbprints of the registered voters in their registration
record: one each in Precincts 8, 29 and 20-A. 5,300
thumbmarks were found to be not identical with the
corresponding thumbmarks of the registered voters in their
registration records, CE Form 1. 6,199 thumbmarks,
however, could not be analyzed because they were blurred,
smudged or faint. Of these 6,199 blurred thumbprints from
56 precincts, 4,187 from 31 precincts were referred to the
NBI handwriting experts for signature examination. The
result of said examination by the NBI of these 4,187
signatures showed that only 13 were found to be identical
with the signatures of the registered voters in their
registration record, CE Form 1, while 2,897 were those of
persons other than the registered voters. No opinion could
be rendered on 1,277 signatures for lack of sufficient basis
of comparison."9 Further: "It appeared, therefore, that in the
whole town of Tapul out of the 11,575 votes cast only 13
were definitely established as cast by the registered voters.
8,197 were definitely established as cast by substitute
voters. No opinion could be rendered with respect to 1,277
for lack of sufficient basis, 2,012 were not examined
anymore since these were in precincts where the number of
substitute voting had been found to constitute a very high
percentage. It has been also established that on Election
Day about one hundred men armed with long arms were
seen going around from precinct to precinct in Tapul driving
away the voters and instructing the teachers-inspectors on
how to prepare the election returns. Some of the ballot
boxes were seen to have been brought to the Municipal
Treasurer's office early in the afternoon of Election Day
hours before the closing of voting. Nineteen (19) precincts of
Tapul reported 100% voting while the over-all percentage of
voting in the whole municipality was 94.5%." 10
Then came the recital as to Parang: "In Parang, where there
were 11,761 registered voters in 67 precincts, it was made
to appear that 11,083 votes were cast. 66 voters who were
not registered in the precinct were able to vote illegally
without even using the names of the registered voters
therein. An examination of the thumbprints of those who
voted appearing in CE Form 39 or at the back of CE Form 1
compared with the corresponding thumbprints of the
registered voters appearing in their registration record in CE
Form 1 showed that only 39 thumbprints of the registered
voters in his CE Form 1, while 4,698 were different from
those of the registered voters. 6,539 thumbmarks could not
be analyzed because they were blurred, smudged or faint.
However, only 2,647 of these 6,539 smudged thumbprints
were referred to the NBI for signature examination since the
rest of said blurred thumbmarks were in precincts where a
high percentage of non-identical thumbmarks was already
discovered. 1,573 signatures were found to be by persons
other than the registered voters and only 83 were found to
be identical with those of the registered voters. No opinion
could be rendered with respect to 991 signatures for lack of
sufficient basis. In 20 precincts it was made to appear that
all the registered voters had voted. The overall percentage
for the whole town of Parang was 94%. The evidence also
showed that in a number of precincts in Parang armed men
had entered the polling places and prepared the ballots. The
registered voters were not able to vote." 11 Lastly, as to
Luuk: "In Luuk where there were 13,124 registered voters,
12,263 votes were cast. 281 persons who were not
registered voters in this precinct were able to vote illegally
without even using the names of the registered voters. The
thumbprints of those who voted appearing in their voting
record either in CE Form 1 or in CE Form 39 compared with
the thumbprints of the registered voters appearing in the
voter's registration record in CE Form 1 showed that only 22
of the thumbmarks of those who voted were identical with
the thumbmarks of the registered voters, while 6,021 were
found to be different from those of the registered voters.
6,134 thumbmarks could not, however, be analyzed
because they were found to be blurred, smudged or faint.
However, the signatures of those who voted in 13 precincts
were examined by the NBI and it was found that the said
signatures were written by just a few persons as explained
with greater particularity in the earlier pages of this
resolution." 12
In the light of the above and finding no need to determine
how the election was in fact conducted as to Pata, Patikul,
Indanan, Panamao, South Ubian, Balimbing, Bongao and
Tandubas, it was the holding of the Commission in the
resolution of May 14, 1971: "1. To rule by unanimous vote
that the returns from the 107 precincts of Siasi, 56 precincts
of Tapul, 67 precincts of Parang and 60 precincts of Luuk
are spurious and/or manufactured returns or no returns at all
and as such should be excluded from the canvass for the
election of delegates for the lone congressional district of
the province of Sulu; 2. To hold also by unanimous vote that
further hearings on the petition of [Benjamin Abubakar, et al]
for the rejection or exclusion from the canvass of the returns
from Indanan, Panamao, Pata, Tandubas South Ubian,
Patikul, Bongao and Balimbing would no longer be
necessary, it appearing that the results of the election would
no longer be affected by the returns from said municipalities
after the rejection of the returns from the four towns of Siasi,
Tapul, Parang and Luuk and, therefore, for the purpose of
the completion of the canvass, to direct the Board of
Canvassers to include the returns from said municipalities in
the canvass; 3. By majority vote of the members of the
Commission to direct the Provincial Board of Canvassers of
Sulu to reconvene in Jolo and complete the canvass
excluding from said canvass the returns from the towns of
Siasi, Parang, Tapul, and Luuk and to proclaim the 3rd
winning candidate at 5:00 P.M. on May 28, 1971, unless
restrained by the Supreme Court." 13 On May 22, 1971, this
petition for the review of the above resolution of May 14,
1971 of respondent Commission was filed. Three days later,
a resolution was adopted by this Court requiring
respondents to file an answer not later than June 4, 1971.
Both respondent Commission on Elections and respondent
Abubakar duly filed their answers on said date. Respondent
Commission took pains to explain with even more detail why
such a resolution had to be issued considering the "massive
voting anomalies ranging from substitute voting to grabbing
of ballots to preparation of election returns and other
election documents at gunpoint" thus justifying its
conclusion that the elections in the four towns amounted to
a sham. The case was heard on June 8, 1971 with petitioner
Pungutan represented by Attorney Jose W. Diokno.
Respondent Abubakar, represented by Attorney Jovito R.
Salonga, sought permission to submit a memorandum,
which was received by this Court on June 28, 1971.
Petitioner was given the opportunity to reply thereto, and he
did so in his memorandum filed with this Court on October
18, 1971. The case was deemed submitted on December 3,
1971. It is the decision of this Court, as noted at the outset,
after a careful study of the pleadings and in the light of our
decision last month in Usman v. Commission on
Elections 14 that the challenged resolution of respondent
Commission of May 14, 1971 is in accordance with law. The
petition must therefore fail.
1. There is no merit to the contention that respondent
Commission is devoid of power to disregard and annul the
alleged returns from 107 precincts of Siasi, 56 precincts of
Tapul, 67 precincts of Parang and 60 precincts of Luuk for
being spurious or manufactured. So we have held on facts
analogous in character in the above Usman decision
rendered last month. Nor is it to be wondered at. Any other
view would indict itself for lack of fealty to reason and to the
realities of the situation. It goes without saying that what is
contemplated in the law is that the electors in the exercise of
their free will can go to the polls and exercise their right of
suffrage, with the boards of inspectors crediting each
candidate with the votes duly obtained after an honest
count. It is on that basis that election returns are to be
made. Where no such election was in fact held as was
found by respondent Commission with respect to the four
towns, it is not only justified but it is its clear duty to
stigmatize the alleged returns as clearly spurious and
manufactured and therefore bereft of any value. The words
of Justice Castro, in the Usman decision, referring to the
election returns from Karomatan, considered as likewise not
entitled to credit because of their lack of integrity and
authenticity, are opposite: "These circumstances definitely
point, not merely to a few isolated instances of irregularities
affecting the integrity and authenticity of the election returns,
but to an organized, well-directed large-scale operation to
make a mockery of the elections in Karomatan. We find and
so hold that the election returns from the 42 precincts in
question were prepared under circumstances conclusively
showing that they are false, and are so devoid of value as to
be completely unworthy of inclusion in the canvass. We
have no alternative but to affirm the Comelec's finding that
they are spurious and manufactured." 15 Nor is it to be lost
sight of that the power to reject returns of such a character
has been exercised most judiciously. Even a cursory perusal
of the mode and manner of inquiry conducted by respondent
Commission resulting in the challenged resolution should
suffice to remove any doubt as to the absence of any
impropriety or improvidence in the exercise of such a
prerogative. Clearly, there was care and circumspection to
assure that the constitutional objective of insuring that an
election be "free, orderly and honest" be realized. If, under
the circumstances disclosed, a different conclusion were
arrived at, then certainly there is a frustration of such an
ideal. Moreover, this Court has not displayed any reluctance
in yielding the imprimatur of its approval to the action taken
by respondent Commission in the discharge of its
constitutional function of the enforcement of all laws relative
to the conduct of elections. The long line of decisions
especially so since Cauton v. Commission on Elections, 16 is
not susceptible of any other interpretation. Only thus may
there be an assurance that the canvassing and proclamation
reflect with fidelity and accuracy the true results of an
election, in fact actually held. We do so again. As a matter of
fact, such a sympathetic approach to the results arrived at in
the discharge of its functions started with the leading case
of Sumulong v. Commission on Elections. 17 As was so well
put by Justice, later Chief Justice, Abad Santos: "The
Commission on Elections is a constitutional body. It is
intended to play a distinct and important part in our scheme
of government. In the discharge of its functions, it should not
be hampered with restrictions that would be fully warranted
in the case of a less responsible organization. The
Commission may err, so may this Court also. It should be
allowed considerable latitude in devising means and
methods that will insure the accomplishment of the great
objective for which it was created -- free, orderly and honest
elections. We may not agree fully with its choice of means,
but unless these are clearly illegal or constitute gross abuse
of discretion, this court should not interfere." 18 The same
approach is reflected in the opinion of the Chief Justice
in Lucman v. Dimaporo when as he pointed out if "pursuant
to our Administrative Law, the findings of fact of
administrative organs created by ordinary legislation will not
be disturbed by courts of justice, except when there is
absolutely no evidence or no substantial evidence in support
of such findings ... there is no reason to believe that the
framers of our Constitution intended to place the
Commission on Elections — created and explicitly made
'independent' by the Constitution itself — on a lower level
than said statutory administrative organs; ... ." 19
2. The right to vote has reference to a constitutional
guarantee of the utmost significance. It is a right without
which the principle of sovereignty residing in the people
becomes nugatory. 20 In the traditional terminology, it is a
political right enabling every citizen to participate in the
process of government to assure that it derives its power
from the consent of the governed. What was so eloquently
expressed by Justice Laurel comes to mind: "As long as
popular government is an end to be achieved and
safeguarded, suffrage, whatever may be the modality and
form devised, must continue to be the means by which the
great reservoir of power must be emptied into the
receptacular agencies wrought by the people through their
Constitution in the interest of good government and the
common weal. Republicanism, in so far as it implies the
adoption of a representative type of government, necessarily
points to the enfranchised citizen as a particle of popular
sovereignty and as the ultimate source of the established
authority."21
How such a right is to be exercised is regulated by the
Election Code. 22 Its enforcement under the Constitution is,
as noted, vested in respondent Commission. Such a power,
however, is purely executive or administrative. So it was
characterized by the Chief Justice in Abcede v.
Imperial: 23 "Lastly, as the branch of the executive
department — although independent of the President — to
which the Constitution has given the 'exclusive charge' of
the 'enforcement and administration of all laws relative to
the conduct of elections,' the power of decision of the
Commission is limited to purely 'administrative questions.'
...."
It becomes obvious then why the right to vote, a denial of
which should find redress in the judiciary as the guardian of
constitutional rights, is excluded from the authority vested in
respondent Commission. If the exclusion of the returns from
the four towns in Sulu involved a question as to such a right,
then, clearly, what the Commission did was beyond its
competence. Such is not the case however. What is
deemed outside such a sphere is the determination of
whether or not a person can exercise or is precluded from
exercising the right of suffrage. Thus, the question of
inclusion or exclusion from the list of voters is properly
judicial. 24 As to whether or not an election has been held is
a question of a different type. It is properly within the
administrative jurisdiction of respondent Commission. If, as
is our decision, no such voting did take place, considering
the massive irregularities that attended it in the four towns,
then the exclusion of the alleged returns is not tainted by
infirmity. In that sense, the second issue raised by petitioner
that in so acting the respondent Commission exceeded its
constitutional power by encroaching on terrain properly
judicial, the right to vote being involved, is likewise to be
resolved against him. At any rate, what was set forth by
Justice J.B.L. Reyes in Diaz v. Commission on
Elections 25 would likewise dispose of such a contention
adverse to petitioner. Thus: "It is pleaded by respondents
that the rejection of the Sagada returns would result in the
disfranchisement of a large number of legitimate voters. But
such disfranchisement would only be provisional, subject to
the final determination of the validity of the votes at the
protest that may be filed with the Constitutional
Convention." 26
power of respondent Commission is sustained, a special
election be called by it in all the 290 precincts in the four
municipalities of Siasi, Tapul, Parang and Luuk, it suffices to
refer to our ruling in Usman v. Commission on
Elections, where a similar point was raised without success.
So it should be in this case. We see no reason to order such
a special election. 27
WHEREFORE, the petition is dismissed and the resolution
of the Commission on Elections dated May 14, 1971 is
affirmed. The Commission on Elections is directed to order
the board of canvassers to convene without delay and
forthwith proceed with and complete the canvass of the
election returns from all the precincts of Sulu, excluding
therefrom all the election returns from 107 precincts of Siasi,
56 precincts of Tapul, 67 precincts of Parang and 60
precincts of Luuk, and thereafter proclaim the winning
candidate for the third Constitutional Convention seat
allotted to the said province. This decision is hereby
declared immediately executory. No pronouncement as to
costs.
Concepcion, C.J., Reyes, J.B.L., Makalintal, Zaldivar,
Castro, Teehankee, Villamor and Makasiar, JJ., concur.

3. As to the plea in the prayer of the petition that in the event

that the challenged resolution of May 14, 1971 as to the
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 90336 August 12, 1991
RUPERTO TAULE, petitioner,
vs.
SECRETARY LUIS T. SANTOS and GOVERNOR
LEANDRO VERCELES, respondents.
Balgos & Perez and Bugaring, Tugonon & Associates Law
Offices for petitioner.
Juan G. Atencia for private respondent.
GANCAYCO, J.:
The extent of authority of the Secretary of Local
Government over the katipunan ng mga barangay or the
barangay councils is brought to the fore in this case.
On June 18,1989, the Federation of Associations of
Barangay Councils (FABC) of Catanduanes, composed of
eleven (11) members, in their capacities as Presidents of
the Association of Barangay Councils in their respective
municipalities, convened in Virac, Catanduanes with six
members in attendance for the purpose of holding the
election of its officers.
Present were petitioner Ruperto Taule of San Miguel, Allan
Aquino of Viga, Vicente Avila of Virac, Fidel Jacob of
Panganiban, Leo Sales of Caramoran and Manuel Torres of
Baras. The Board of Election Supervisors/Consultants was
composed of Provincial Government Operation Officer
(PGOO) Alberto P. Molina, Jr. as Chairman with Provincial
Treasurer Luis A. Manlapaz, Jr. and Provincial Election
Supervisor Arnold Soquerata as members.
When the group decided to hold the election despite the
absence of five (5) of its members, the Provincial Treasurer
and the Provincial Election Supervisor walked out.
The election nevertheless proceeded with PGOO Alberto P.
Molina, Jr. as presiding officer. Chosen as members of the
Board of Directors were Taule, Aquino, Avila, Jacob and
Sales.
Thereafter, the following were elected officers of the FABC:
President — Ruperto Taule
Vice-President — Allan Aquino
Secretary — Vicente Avila
Treasurer — Fidel Jacob
Auditor — Leo Sales1
On June 19, 1989, respondent Leandro I. Verceles,
Governor of Catanduanes, sent a letter to respondent Luis
T. Santos, the Secretary of Local Government, * protesting
the election of the officers of the FABC and seeking its
nullification in view of several flagrant irregularities in the
manner it was conducted.2
In compliance with the order of respondent Secretary,
petitioner Ruperto Taule as President of the FABC, filed his
comment on the letter-protest of respondent Governor
denying the alleged irregularities and denouncing said
respondent Governor for meddling or intervening in the
election of FABC officers which is a purely non-partisan
affair and at the same time requesting for his appointment
as a member of the Sangguniang Panlalawigan of the
province being the duly elected President of the FABC in
Catanduanes.3
On August 4, 1989, respondent Secretary issued a
resolution nullifying the election of the officers of the FABC
in Catanduanes held on June 18, 1989 and ordering a new
one to be conducted as early as possible to be presided by
the Regional Director of Region V of the Department of
Local Government.4
Petitioner filed a motion for reconsideration of the resolution
of August 4, 1989 but it was denied by respondent Secretary
in his resolution of September 5, 1989.5
In the petition for certiorari before Us, petitioner seeks the
reversal of the resolutions of respondent Secretary dated
August 4, 1989 and September 5, 1989 for being null and
void.
Petitioner raises the following issues:
1) Whether or not the respondent Secretary has jurisdiction
to entertain an election protest involving the election of the
officers of the Federation of Association of Barangay
Councils;
2) Whether or not the respondent Governor has the legal
personality to file an election protest;
3) Assuming that the respondent Secretary has jurisdiction
over the election protest, whether or not he committed grave
abuse of discretion amounting to lack of jurisdiction in
nullifying the election;
The Katipunan ng mga Barangay is the organization of
all sangguniang barangays in the following levels: in
municipalities to be known as katipunang bayan; in
cities, katipunang panlungsod; in provinces, katipunang
panlalawigan; in regions, katipunang pampook; and on the
national level, katipunan ng mga barangay.6
The Local Government Code provides for the manner in
which the katipunan ng mga barangay at all levels shall be
organized:
Sec. 110. Organization. — (1) The katipunan at all
levels shall be organized in the following manner:
(a) The katipunan in each level shall elect a board of
directors and a set of officers. The president of each
level shall represent the katipunan concerned in the
next higher level of organization.
(b) The katipunan ng mga barangay shall be
composed of the katipunang pampook, which shall in
turn be composed of the presidents of the katipunang
panlalawigan and the katipunang panlungsod. The
presidents of the katipunang bayan in each province
shall constitute the katipunang panlalawigan. The
katipunang panlungsod and the katipunang bayan
shall be composed of the punong barangays of cities
and municipalities, respectively.
The respondent Secretary, acting in accordance with the
provision of the Local Government Code empowering him to
"promulgate in detail the implementing circulars and the
rules and regulations to carry out the various administrative
actions required for the initial implementation of this Code in
such a manner as will ensure the least disruption of on-
going programs and projects7 issued Department of Local
Government Circular No. 89-09 on April 7, 1989,8 to provide
the guidelines for the conduct of the elections of officers of
the Katipunan ng mga Barangay at the municipal, city,
provincial, regional and national levels.
It is now the contention of petitioner that neither the
constitution nor the law grants jurisdiction upon the
respondent Secretary over election contests involving the
election of officers of the FABC, the katipunan ng mga
barangay at the provincial level. It is petitioner's theory that
under Article IX, C, Section 2 of the 1987 Constitution, it is
the Commission on Elections which has jurisdiction over all
contests involving elective barangay officials.
On the other hand, it is the opinion of the respondent
Secretary that any violation of the guidelines as set forth in
said circular would be a ground for filing a protest and would
vest upon the Department jurisdiction to resolve any protest
that may be filed in relation thereto.
Under Article IX, C, Section 2(2) of the 1987 Constitution,
the Commission on Elections shall 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." The 1987
Constitution expanded the jurisdiction of the COMELEC by
granting it appellate jurisdiction over all contests involving
elective municipal officials decided by trial courts of general
jurisdiction or elective barangay officials decided by trial
courts of limited jurisdiction.9
The jurisdiction of the COMELEC over contests involving
elective barangay officials is limited to appellate jurisdiction
from decisions of the trial courts. Under the law,10 the sworn
petition contesting the election of a barangay officer shall be
filed with the proper Municipal or Metropolitan Trial Court by
any candidate who has duly filed a certificate of candidacy
and has been voted for the same office within 10 days after
the proclamation of the results. A voter may also contest the
election of any barangay officer on the ground of ineligibility
or of disloyalty to the Republic of the Philippines by filing a
sworn petition for quo warranto with the Metropolitan or
Municipal Trial Court within 10 days after the proclamation
of the results of the election.11 Only appeals from decisions
of inferior courts on election matters as aforestated may be
decided by the COMELEC.
The Court agrees with the Solicitor General that the
jurisdiction of the COMELEC is over popular elections, the
elected officials of which are determined through the will of
the electorate. An election is the embodiment of the popular
will, the expression of the sovereign power of the people.12 It
involves the choice or selection of candidates to public office
by popular vote.13 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 the
votes14 which do not characterize the election of officers in
the Katipunan ng mga barangay. "Election contests" would
refer to adversary proceedings by which matters involving
the title or claim of title to an elective office, made before or
after proclamation of the winner, is settled whether or not
the contestant is claiming the office in dispute15 and in the
case of elections of barangay officials, it is restricted to
proceedings after the proclamation of the winners as no pre-
proclamation controversies are allowed.16
The jurisdiction of the COMELEC does not cover protests
over the organizational set-up of the katipunan ng mga
barangay composed of popularly elected punong
barangays as prescribed by law whose officers are voted
upon by their respective members. The COMELEC
exercises only appellate jurisdiction over election contests
involving elective barangay officials decided by the
Metropolitan or Municipal Trial Courts which likewise have
limited jurisdiction. The authority of the COMELEC over
the katipunan ng mga barangay is limited by law to
supervision of the election of the representative of
the katipunan concerned to the sanggunian in a particular
level conducted by their own respective organization.17
However, the Secretary of Local Government is not vested
with jurisdiction to entertain any protest involving the
election of officers of the FABC.
There is no question that he is vested with the power to
promulgate rules and regulations as set forth in Section 222
of the Local Government Code.
Likewise, under Book IV, Title XII, Chapter 1, See. 3(2) of
the Administrative Code of 1987, ** the respondent Secretary
has the power to "establish and prescribe rules, regulations
and other issuances and implementing laws on the general
supervision of local government units and on the promotion
of local autonomy and monitor compliance thereof by said
units."
Also, the respondent Secretary's rule making power is
provided in See. 7, Chapter II, Book IV of the Administrative
Code, to wit:
(3) Promulgate rules and regulations necessary to
carry out department objectives, policies, functions,
plans, programs and projects;
Thus, DLG Circular No. 89-09 was issued by respondent
Secretary in pursuance of his rule-making power conferred
by law and which now has the force and effect of law.18
Now the question that arises is whether or not a violation of
said circular vests jurisdiction upon the respondent
Secretary, as claimed by him, to hear a protest filed in
relation thereto and consequently declare an election null
and void.
It is a well-settled principle of administrative law that unless
expressly empowered, administrative agencies are bereft of
quasi- judicial powers.19 The jurisdiction of administrative
authorities is dependent entirely upon the provisions of the
statutes reposing power in them; they cannot confer it upon
themselves.20 Such jurisdiction is essential to give validity to
their determinations.21
There is neither a statutory nor constitutional provision
expressly or even by necessary implication conferring upon
the Secretary of Local Government the power to assume
jurisdiction over an election protect involving officers of
the katipunan ng mga barangay. An understanding of the
extent of authority of the Secretary over local governments
is therefore necessary if We are to resolve the issue at
hand.
Presidential power over local governments is limited by the
Constitution to the exercise of general supervision22 "to
ensure that local affairs are administered according to
law."23 The general supervision is exercised by the
President through the Secretary of Local Government.24
In administrative law, supervision means overseeing or the
power or authority of an officer to see that the subordinate
officers perform their duties. If the latter fails or neglects to
fulfill them the former may take such action or step as
prescribed by law to make them perform their duties.
Control, on the other hand, means the power of an officer to
alter or modify or nullify or set aside what a subordinate
officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter.
The fundamental law permits the Chief Executive to wield no
more authority than that of checking whether said local
government or the officers thereof perform their duties as
provided by statutory enactments. Hence, the President
cannot interfere with local governments so long as the same
or its officers act within the scope of their
authority.25 Supervisory power, when contrasted with
control, is the power of mere oversight over an inferior body;
it does not include any restraining authority over such
body.26
Construing the constitutional limitation on the power of
general supervision of the President over local
governments, We hold that respondent Secretary has no
authority to pass upon the validity or regularity of the
election of the officers of the katipunan. To allow respondent
Secretary to do so will give him more power than the law or
the Constitution grants. It will in effect give him control over
local government officials for it will permit him to interfere in
a purely democratic and non-partisan activity aimed at
strengthening the barangay as the basic component of local
governments so that the ultimate goal of fullest autonomy
may be achieved. In fact, his order that the new elections to
be conducted be presided by the Regional Director is a clear
and direct interference by the Department with the political
affairs of the barangays which is not permitted by the
limitation of presidential power to general supervision over
local governments.27
Indeed, it is the policy of the state to ensure the autonomy of
local governments.28 This state policy is echoed in the Local
Government Code wherein it is declared that "the State shall
guarantee and promote the autonomy of local government
units to ensure their fullest development as self-reliant
communities and make them more effective partners in the
pursuit of national development and social progress."29 To
deny the Secretary of Local Government the power to
review the regularity of the elections of officers of the
katipunan would be to enhance the avowed state policy of
promoting the autonomy of local governments.
Moreover, although the Department is given the power to
prescribe rules, regulations and other issuances, the
Administrative Code limits its authority to merely "monitoring
compliance" by local government units of such
issuances.30 To monitor means "to watch, observe or
check.31 This is compatible with the power of supervision of
the Secretary over local governments which as earlier
discussed is limited to checking whether the local
government unit concerned or the officers thereof perform
their duties as provided by statutory enactments. Even the
Local Government Code which grants the Secretary power
to issue implementing circulars, rules and regulations is
silent as to how these issuances should be enforced. Since
the respondent Secretary exercises only supervision and not
control over local governments, it is truly doubtful if he could
enforce compliance with the DLG Circular.32 Any doubt
therefore as to the power of the Secretary to interfere with
local affairs should be resolved in favor of the greater
autonomy of the local government.
Thus, the Court holds that in assuming jurisdiction over the
election protest filed by respondent Governor and declaring
the election of the officers of the FABC on June 18, 1989 as
null and void, the respondent Secretary acted in excess of
his jurisdiction. The respondent Secretary not having the
jurisdiction to hear an election protest involving officers of
the FABC, the recourse of the parties is to the ordinary
courts. The Regional Trial Courts have the exclusive original
jurisdiction to hear the protest.33
The provision in DLG Circular No. 89-15 amending DLG
Circular No. 89-09 which states that "whenever the
guidelines are not substantially complied with, the election
shall be declared null and void by the Department of Local
Government and an election shall conduct and being
invoked by the Solicitor General cannot be applied. DLG
Circular No. 89-15 was issued on July 3, 1989 after the June
18, 1989 elections of the FABC officers and it is the rule in
statutory construction that laws, including circulars and
regulations34 cannot be applied retrospectively.35Moreover,
such provision is null and void for having been issued in
excess of the respondent Secretary's jurisdiction, inasmuch
as an administrative authority cannot confer jurisdiction
upon itself.
As regards the second issue raised by petitioner, the Court
finds that respondent Governor has the personality to file the
protest. Under Section 205 of the Local Government Code,
the membership of the sangguniang panlalawiganconsists of
the governor, the vice-governor, elective members of the
said sanggunian and the presidents of the katipunang
panlalawigan and the kabataang barangay provincial
federation. The governor acts as the presiding officer of
the sangguniang panlalawigan.36
As presiding officer of the sagguniang panlalawigan, the
respondent governor has an interest in the election of the
officers of the FABC since its elected president becomes a
member of the assembly. If the president of the FABC
assumes his presidency under questionable circumstances
and is allowed to sit in the sangguniang panlalawiganthe
official actions of the sanggunian may be vulnerable to
attacks as to their validity or legality. Hence, respondent
governor is a proper party to question the regularity of the
elections of the officers of the FABC.
As to the third issue raised by petitioner, the Court has
already ruled that the respondent Secretary has no
jurisdiction to hear the protest and nullify the elections.
Nevertheless, the Court holds that the issue of the validity of
the elections should now be resolved in order to prevent any
unnecessary delay that may result from the commencement
of an appropriate action by the parties.
The elections were declared null and void primarily for
failure to comply with Section 2.4 of DLG Circular No. 89-09
which provides that "the incumbent FABC President or the
Vice-President shall preside over the reorganizational
meeting, there being a quorum." The rule specifically
provides that it is the incumbent FABC President or Vice-
President who shall preside over the meeting. The word
"shall" should be taken in its ordinary signification, i.e., it
must be imperative or mandatory and not merely
permissive,37 as the rule is explicit and requires no other
interpretation. If it had been intended that any other official
should preside, the rules would have provided so, as it did in
the elections at the town and city levels38 as well as the
regional level..39
It is admitted that neither the incumbent FABC President nor
the Vice-President presided over the meeting and elections
but Alberto P. Molina, Jr., the Chairman of the Board of
Election Supervisors/Consultants. Thus, there was a clear
violation of the aforesaid mandatory provision. On this
ground, the elections should be nullified.
Under Sec. 2.3.2.7 of the same circular it is provided that a
Board of Election Supervisors/Consultants shall be
constituted to oversee and/or witness the canvassing of
votes and proclamation of winners. The rules confine the
role of the Board of Election Supervisors/Consultants to
merely overseeing and witnessing the conduct of elections.
This is consistent with the provision in the Local
Government Code limiting the authority of the COMELEC to
the supervision of the election.40
In case at bar, PGOO Molina, the Chairman of the Board,
presided over the elections. There was direct participation
by the Chairman of the Board in the elections contrary to
what is dictated by the rules. Worse, there was no Board of
Election Supervisors to oversee the elections in view of the
walk out staged by its two other members, the Provincial
COMELEC Supervisor and the Provincial Treasurer. The
objective of keeping the election free and honest was
therefore compromised.
The Court therefore finds that the election of officers of the
FABC held on June 18, 1989 is null and void for failure to
comply with the provisions of DLG Circular No. 89-09.
Meanwhile, pending resolution of this petition, petitioner filed
a supplemental petition alleging that public respondent Local
Government Secretary, in his memorandum dated June 7,
1990, designated Augusto Antonio as temporary
representative of the Federation to the sangguniang
panlalawigan of Catanduanes.41 By virtue of this
memorandum, respondent governor swore into said office
Augusto Antonio on June 14, 1990.42
The Solicitor General filed his comment on the supplemental
petition43 as required by the resolution of the Court dated
September 13,1990.
In his comment, the Solicitor General dismissed the
supervening event alleged by petitioner as something
immaterial to the petition. He argues that Antonio's
appointment was merely temporary "until such time that the
provincial FABC president in that province has been elected,
appointed and qualified."44 He stresses that Antonio's
appointment was only a remedial measure designed to cope
with the problems brought about by the absence of a
representative of the FABC to the "sanggunian ang
panlalawigan."
Sec. 205 (2) of the Local Government Code (B.P. Blg. 337)
provides-
(2) The sangguniang panlalawigan shall be
composed of the governor, the vice-governor,
elective members of the said sanggunian and the
presidents of the katipunang panlalawigan and the
kabataang barangay provincial federation who shall
be appointed by the President of the Philippines.
(Emphasis supplied.)
Batas Pambansa Blg. 51, under Sec. 2 likewise states:
The sangguniang panlalawigan of each province shall
be composed of the governor as chairman and
presiding officer, the vice-governor as presiding
officer pro tempore, the elective sangguniang
panlalawigan members, and the appointive members
consisting of the president of the provincial
association of barangay councils, and the president
of the provincial federation of the kabataang
barangay. (Emphasis supplied.)
In Ignacio vs. Banate Jr.45 the Court, interpreting similarly
worded provisions of Batas Pambansa Blg. 337 and Batas
Pambansa Blg. 51 on the composition of the sangguniang
panlungsod,46 declared as null and void the appointment of
private respondent Leoncio Banate Jr. as member of
the Sangguniang Panlungsod of the City of Roxas
representing the katipunang panlungsod ng mga
barangay for he lacked the elegibility and qualification
required by law, not being a barangay captain and for not
having been elected president of the association of
barangay councils. The Court held that an unqualified
person cannot be appointed a member of the sanggunian,
even in an acting capacity. In Reyes vs. Ferrer,47 the
appointment of Nemesio L. Rasgo Jr. as representative of
the youth sector to the sangguniang panlungsod of Davao
City was declared invalid since he was never the president
of the kabataang barangay city federation as required by
Sec. 173, Batas Pambansa Blg. 337.
In the present controversy involving the sangguniang
panlalawigan, the law is likewise explicit. To be appointed by
the President of the Philippines to sit in the sangguniang
panlalawigan is the president of the katipunang
panlalawigan. The appointee must meet the qualifications
set by law.48 The appointing power is bound by law to
comply with the requirements as to the basic qualifications
of the appointee to the sangguniang panlalawigan. The
President of the Philippines or his alter ego, the Secretary of
Local Government, has no authority to appoint anyone who The election of the officials of the ABC Federation held on
does not meet the minimum qualification to be the president June 18, 1989 is hereby annulled.1âwphi1 A new election of
of the federation of barangay councils. officers of the federation is hereby ordered to be conducted
immediately in accordance with the governing rules and
Augusto Antonio is not the president of the federation. He is regulations.
a member of the federation but he was not even present
during the elections despite notice. The argument that The Supplemental petition is hereby GRANTED. The
Antonio was appointed as a remedial measure in the appointment of Augusto Antonio as representative to
exigency of the service cannot be sustained. Since Antonio the Sangguniang Panlalawigan in a temporary capacity is
does not meet the basic qualification of being president of declared null and void. No costs.
the federation, his appointment to the sangguniang
panlalawigan is not justified notwithstanding that such
appointment is merely in a temporary capacity. If the
intention of the respondent Secretary was to protect the
interest of the federation in the sanggunian, he should have
appointed the incumbent FABC President in a hold-over
capacity. For even under the guidelines, the term of office of
officers of the katipunan at all levels shall be from the date
of their election until their successors shall have been duly
elected and qualified, without prejudice to the terms of their
appointments as members of the sanggunian to which they
may be correspondingly appointed.49 Since the election is
still under protest such that no successor of the incumbent
has as yet qualified, the respondent Secretary has no choice
but to have the incumbent FABC President sit as member of
the sanggunian. He could even have appointed petitioner
since he was elected the president of the federation but not
Antonio. The appointment of Antonio, allegedly the protege
of respondent Governor, gives credence to petitioner's
charge of political interference by respondent Governor in
the organization. This should not be allowed. The barangays
should be insulated from any partisan activity or political
intervention if only to give true meaning to local autonomy.

WHEREFORE, the petition is GRANTED in that the

resolution of respondent Secretary dated August 4, 1989 is
hereby SET ASIDE for having been issued in excess of
jurisdiction.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 104960 September 14, 1993
PHILIP G. ROMUALDEZ, petitioner,
vs.
REGIONAL TRIAL COURT, BRANCH 7, TACLOBAN
CITY, DONATO ADVINCULA, BOARD OF ELECTION
INSPECTORS, PRECINCT No. 9, MALBOG, TOLOSA,
LEYTE, and the MUNICIPAL REGISTRAR COMELEC,
TOLOSA, LEYTE, respondents.
Otilia Dimayuga-Molo for petitioner.
The Solicitor General for respondents.
VITUG, J.:
An event in this decade, which future generations would
likely come to know simply as the "EDSA People's Power
Revolution of 1986," has dramatically changed the course of
our nation's history. So, too, not a few of our countrymen
have by it been left alone in their own personal lives. One
such case is that of the petitioner in this special civil action
for certiorari.
The petitioner is Philip Romualdez, a natural born citizen of
the Philippines, the son of the former Governor of Leyte,
Benjamin "Kokoy" Romualdez, and nephew of the then First
Lady Imelda Marcos. Sometime in the early part of 1980, the
petitioner, in consonance with his decision to establish his
legal residence at Barangay Malbog, Tolosa, Leyte,1 caused
the construction of his residential house therein. He soon
thereafter also served as Barangay Captain of the place. In
the 1984 Batasan Election and 1986 "snap" Presidential
Election, Romualdez acted as the Campaign Manager of the
Kilusang Bagong Lipunan (KBL) in Leyte where he voted.2
When the eventful days from the 21st to the 24th of
February, 1986, came or were about to come to a close,
some relatives and associates of the deposed President,
fearing for their personal safety, whether founded or not,
"fled" the country. Petitioner Romualdez, for one, together
with his immediate family, left the Philippines and sought
"asylum" in the United States which the United States (U.S.)
government granted.3 While abroad, he took special studies
on the development of Leyte-Samar and international
business finance.4
In the early part of 1987, Romualdez attempted to come
back to the Philippines to run for a congressional seat in
Leyte. On 23 March 1987, he finally decided to book a flight
back to the Philippines but the flight was somehow aborted.5
On 25 September 1991, Romualdez received a letter from
Mr. Charles Cobb, District Director of the U.S. Immigration
and Naturalization Service, informing him that he should
depart from the U.S. at his expense on or before 23 August
1992, thus:
. . . Failure to depart on or before the specified
date may result in the withdrawal of voluntary
departure and action being taken to effect your
deportation. In accordance with a decision
made to your case, you are required to depart
from the United States at your expense on or
before 23 August 1992.6
Upon receipt of the letter, Romualdez departed from the
U.S. for the Philippines, arriving on December 1991
apparently without any government document.7
When Romualdez arrived in the Philippines, he did not delay
his return to his residence at Malbog, Tolosa, Leyte. During
the registration of voters conducted by the Commission on
Election ("COMELEC") on 01 February 1992 for the
Synchronized National and Local Election scheduled for 11
May 1992, petitioner registered himself anew as a voter at
Precinct No. 9 of Malbog, Tolosa, Leyte. The chairman of
the Board of Election Inspectors, who had known
Romualdez to be a resident of the place and, in fact, an
elected Barangay Chairman of Malbog in 1982, allowed him
to be registered.
Romualdez's registration, however, was not to be
unquestioned. On 21 February 1992, herein private
respondent Donato Advincula ("Advincula") filed a petition
with the Municipal Trial Court of Tolosa, Leyte, praying that
Romualdez be excluded from the list of voters in Precinct
No. 9 of Malbog, Tolosa, Leyte, under BP 881 and RA
7166.8 Advincula alleged that Romualdez was a resident of
Massachusetts, U.S.A.; that his profession and occupation
was in the U.S.A.; that he had just recently arrived in the
Philippines; and that he did not have the required one-year
residence in the Philippines and the six-month residence in
Tolosa to qualify him to register as a voter in Barangay
Malbog, Tolosa, Leyte.9
On 25 February 1992, Romualdez filed an answer,
contending that he has been a resident of Tolosa, Leyte,
since the early 1980's, and that he has not abandoned his
said residence by his physical absence therefrom during the
period from 1986 up to the third week of December 1991. 10
After due hearing, the Municipal Court of Tolosa, Leyte
rendered a decision 11 on 28 February 1992, the dispositive
portion of which reads:
WHEREFORE PREMISES CONSIDERED,
the court finds the respondent to be a resident
of Brgy. Malbog, Tolosa, Leyte and qualified to
register as a voter thereat. Hence, the instant
petition for exclusion of Philip G. Romualdez
from the list of voter of Precinct No. 9, Malbog,
Tolosa, Leyte is hereby ordered DENIED and
petition DISMISSED.
SO ORDERED.
Upon receipt of the adverse decision, Advincula appealed
the case to the respondent court.
On 03 April 1992, the respondent court rendered the
assailed decision, 12 thus:
WHEREFORE, this Court finds respondent
Philip Romualdez disqualified to register as a
voter for the 1992 elections and hereby
reverses the decision of the lower court in toto.
The Municipal Registrar of the Commission on
Elections of Tolosa, Leyte, is hereby ordered
to delete and cancel the name of respondent
Philip G. Romualdez from the list of qualified
voters registered February 1, 1992, at Precinct
9, barangay Malbog, Tolosa, Leyte.
SO ORDERED.
Hence, this recourse.
On 7 May 1992, this Court issued a temporary restraining
order directing respondent Regional Trial Court Judge Pedro
Espino to cease and desist from enforcing questioned
decision.13
The petitioner has raised several issues which have been
well synthesized by the Solicitor General into —
(1) Whether or not the MTC and RTC acquired jurisdiction
over, respectively, Case No. 01-S. 1992 and Case No. 92-
03-42, the petition having been filed by one who did not
allege to be himself a registered voter of the municipality
concerned; and
(2) Whether or not the respondent court erred in finding the
petitioner to have voluntarily left the country and abandoned
his residence in Malbog, Tolosa, Leyte.
The petition is impressed with merit.
Anent the first issue, the petitioner assails for the first time
the jurisdiction of the respondent Court and the MTC of
Tolosa, Leyte, in taking cognizance of the case, despite an
absence of any allegation in the petition filed with the MTC
that Advincula was himself a registered voter in Precinct No.
9 of Barangay Malbog, Tolosa, Leyte conformably with
Section 142 of the Omnibus Election Code. 14
When respondent Advincula filed the petition with the MTC
for the exclusion of herein petitioner Romualdez, the latter
countered by filing his answer 15 and praying for the denial
of the petition, without raising the issue of jurisdiction. But
what can be telling is that when the MTC decision, denying
the petition for disqualification, went on appeal to the RTC,
Romualdez, in his own appeal-memorandum,
explicitly prayed that the MTC decision be affirmed. This
unassailable incident leads us to reiterate that "while lack of
jurisdiction may be assailed at any stage, a party's active
participation in the proceedings before a court without
jurisdiction will estop such party from assailing such lack of
jurisdiction." 16 Undoubtedly, the petitioner is now estopped
from questioning the jurisdiction of the respondent not only
by his active participation in the proceedings thereat but,
more importantly, in having sought an affirmative relief
himself when the appeal was made to the latter court whose
jurisdiction he, in effect, invoked. Furthermore, the question
is not really as much the jurisdiction of the courts below as
merely the locus standi of the complainant in the
proceedings, a matter that, at this stage, should be
considered foreclosed.
In any case, we consider primordial the second issue of
whether or not Romualdez voluntarily left the country and
abandoned his residence in Malbog, Tolosa, Leyte. Here,
this time, we find for the petitioner.
The Solicitor General himself sustains the view of petitioner
Romualdez. Expressing surprise at this stance given by the
Solicitor General, respondent Advincula posits non
sequitur argument 17 in his comment assailing instead the
person of Solicitor Edgar Chua. If it would have any value, at
all, in disabusing the minds of those concerned, it may well
be to recall what this Court said in Rubio vs. Sto. Tomas: 18
It is also incumbent upon the Office of the
Solicitor General to present to the Court the
position that will legally uphold the best
interest of the government, although it may run
counter to a client's position.
In election cases, the Court treats domicile and residence as
synonymous terms, thus: "(t)he term "residence" as used in
the election law is synonymous with "domicile", which
imports not only an intention to reside in a fixed place but
also personal presence in that place, coupled with conduct
indicative of such intention." 19 "Domicile" denotes a fixed
permanent residence to which when absent for business or
pleasure, or for like reasons, one intends to return. 20 That
residence, in the case of the petitioner, was established
during the early 1980's to be at Barangay Malbog, Tolosa,
Leyte. Residence thus acquired, however, may be lost by
adopting another choice of domicile. In order, in turn, to
acquire a new domicile by choice, there must concur (1)
residence or bodily presence in the new locality, (2) an
intention to remain there, and (3) an intention to abandon
the old domicile. 21 In other words, there must basically
be animus manendi coupled with animus non revertendi.
The purpose to remain in or at the domicile of choice must
be for an indefinite period of time; the change of residence
must be voluntary; and the residence at the place chosen for
the new domicile must be actual. 22
hereby REVERSED and SET ASIDE, and the Decision of
the Municipal Trial Court dated 28 February 1992 is hereby
REINSTATED and the Temporary Restraining Order issued
by the Court in this case is correspondingly made
PERMANENT. No pronouncement as to costs.
SO ORDERED.

The political situation brought about by the "People's Power Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr.,
Revolution" must have truly caused great apprehension to Romero, Nocon, Bellosillo, Melo, Quiason and Puno, JJ.,
the Romualdezes, as well as a serious concern over the concur.
safety and welfare of the members of their families. Their
going into self-exile until conditions favorable to them would Narvasa, C.J., and Feliciano, J., are on leave.
have somehow stabilized is understandable. Certainly, their
sudden departure from the country cannot be described as
"voluntary," or as "abandonment of residence" at least in the
context that these terms are used in applying the concept of
"domicile by choice."

We have closely examined the records, and we find not that

much to convince us that the petitioner had, in fact,
abandoned his residence in the Philippines and established
his domicile elsewhere.

It must be emphasized that the right to vote is a most

precious political right, as well as a bounden duty of every
citizen, enabling and requiring him to participate in the
process of government so as to ensure that the government
can truly be said to derive its power solely from the consent
of the governed. 23 We, therefore, must commend
respondent Advincula for spending time and effort even all
the way up to this Court, for as the right of suffrage is not to
be abridged, so also must we safeguard and preserve it but
only on behalf of those entitled and bound to exercise it.

WHEREFORE, finding merit on the petition the same is

hereby GRANTED DUE COURSE; of the Decision of the
respondent Regional Trial Court dated 03 April 1992 is
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-29333 February 27, 1969
MARIANO LL. BADELLES, protestant-appellant,
vs.
CAMILO P. CABILI, protegee-appellee.
--------------------------
G.R. No. L-29334 February 27, 1969
BONIFACIO P. LEGASPI and CECILlO T.
BARAZON protestants-appellants,
vs.
FELIX Z. ACTUB, PROVIDENCIO P. ABRAGAN, MANUEL
F. CELDRAN, CASIMERO P. CABIGON and BENITO
ONG, protestees-appellees.
Bonifacio P. Legaspi for and in his own behalf.
Camilo P. Cabili. Gerardo B. Padilla and Ignacio Español
and Voltaire I. Roviro for protestees-appellees.
FERNANDO, J.:
Two election protests against the duly proclaimed Mayor
and Councilors of Iligan City, after the Nov. 14, 1967
elections, based on the allegations of flagrant violations of
certain mandatory provisions of the Election Code, to be
more specifically set forth hereafter, were dismissed in a
single order by the Court of First Instance of Lanao del
Norte, the Honorable Teodulo C. Tandayag presiding. The
cases are now before us on appeal.
In one of them, 1 the election of Honorable Camilo P. Cabili
to the Office of City Mayor of Iligan City, was contested by
protestant, now appellant, Mariano Badelles. In the
other, 2 the protestants are the now appellants, Bonifacio P.
Legaspi and Cecilia T. Barazon who along with the five
protestees 3 were among those who were registered
candidates voted for in such election for councilors in the
City of Iligan, with the protestees being credited with the five
highest number of votes, with protestants Legaspi and
Barazon obtaining sixth and seventh places, respectively.
In such order of dismissal, it was admitted that while
irregularities as well as misconduct on the part of election
officers were alleged in the election protests filed, there was
however an absence of an allegation that they would
change the result of the election in favor of the protestants
and against the protestees, that such irregularities would
destroy the secrecy and integrity of the ballots cast, or that
the protestees knew of or participated in the commission
thereof. For the lower court then, the lack of a cause of
action was rather evident.
Hence the order of dismissal of March 23, 1968, which was
sought to be fortified by the invocation of the doctrines that
voters should not be deprived of their right to vote
occasioned by the failure of the election officials to comply
with the formal prerequisites to the exercise of the right of
suffrage and that the rules and regulations for the conduct of
elections while mandatory before the voting should be
considered directory thereafter. The validity of such order of
dismissal is now to be inquired into by us in this appeal.
In the petition of protestant Badelles, dated December 8,
1967, and marked as received the next day by the Clerk of
Court of the Court of First Instance of Lanao del Norte, 15th
Judicial District, it was stated that both he and protestee
Camilo P. Cabili were the duly registered candidates for the
Office of City Mayor of Iligan City, both having filed their
respective certificates of candidacy in accordance with law
and as such candidates voted for in the November 14, 1967
election. It was then alleged that the Board of Canvassers,
on November 25, 1967, proclaimed as elected protestee for
having obtained 11,310 votes while protestant was credited
with 8,966 votes. Protestant would impugn the election of
Cabili on the ground that there were "flagrant violation of
mandatory provisions of law relating to or governing
elections ...." in that more than 200 voters were registered
per precinct contrary to the provision limiting such number of
200 only and that no publication of the list of voters for each
precinct was made up to the election day itself, enabling
persons who under the law could not vote being allowed to
do so. As a result of such alleged "flagrant violations of the
laws relation to or governing elections" around 8,300
individuals were allowed to vote illegally.
It was likewise asserted that not less than 8,000 qualified
voters were unable to exercise their right of suffrage in view
of their failure, without any fault on their part, to have the
proper identification cards or the non-listing of their names in
the list of voters. It was stated further that even in the case
of those individuals provided with identification cards with
their names included in the list of voters, they could not avail
themselves of their right of suffrage as their applications for
registration could not be found. Mention was also made of
the fact that the final lists of voters and the applications for
registration were delivered to their respective precincts late
on election day itself thus preventing them from voting.
Moreover, confusion, so it was alleged, was caused by the
excessive number of voters being listed and many having
been assigned to precincts other than the correct ones.
What was thus objected to is the fact that illegal votes were
cast by those not qualified to do so, numbering 8,300 or
more and that an approximately equal number, who were
duly registered with the Commission on Elections, Iligan
City, were unable to vote due to the above circumstances.
The proclamation then could not have reflected the true will
of the electorate as to who was the mayor elected, as the
majority of protestee Cabili over the protestant consisted of
only 2,344 votes.
The prayer was among others for the proclamation of
protestee as well as other candidates for elective positions
in the City of Iligan being set aside and declared null and
void, protestant pleading further that he be granted other
such relief as may be warranted in law and equity.
The protest of the candidates for councilor Legaspi and
Barazon in the other case against protestees 4 was in
substance similarly worded. The prayer was for the setting
aside and declaring null and void the proclamation of
protestees with protestants seeking such other relief which
should be theirs according to law and to equity.
In the first case, protestee Cabili moved to dismiss the
petition on the following grounds: "1. That the protest was
filed beyond the reglementary period allowed by the Revised
Election Code; 2. That [the lower court] has no jurisdiction
over the subject matter of the present case, the Commission
on Elections being the proper body to hear the same; 3.
That the complaint states no cause of action." 5 This very
same grounds were relied upon in a motion to dismiss by
protestees Actub and Cabigon, filed in the other suit.
As above noted, in a single order of March 23, 1968, the two
above election protests were dismissed, the lower court
being of the opinion that neither petition alleged a cause of
action "to justify [it] to try the same." The first ground of the
motion to dismiss to the effect that the protests in both
cases were filed beyond the reglementary period was
rejected. The claim as to lack of jurisdiction was likewise
held to be without merit. The single order of dismissal in
both cases as indicated was based on the lack of a cause of
action.
The reasoning followed by the lower court in reaching the
above conclusion that there was no cause of action,
proceeded along these lines: "Mere irregularities or
misconduct on the part of election officers which do not tend
to affect the result of the elections are not of themselves
either ground for contest or for proper matters of inquiry...
There is no allegation in the protest that the alleged
irregularities committed by the election officers would tend to
change the result of the election in favor of the protestants
and against the protestees. There is no allegation in the
petition that the 8,000 voters who failed to vote were all
voters of protestants and the 8,300 illegal voters who voted
were for the protestees. There is, therefore, no legal and
practical justification for the court to inquire into the
irregularities committed by the election officials, as alleged
in the petition, for it would not give any benefit in favor of the
protestants to the end that they will be declared the duly
elected mayor and councilors, respectively, of this City."6
It was further stated in such order of dismissal: "There is no
allegation in the petition that the irregularities committed by
the election officials have destroyed the secrecy and
integrity of the ballots cast. There is no allegation in the
petition that the non-compliance of the election officials of
the provisions of the election laws regarding the registration
of voters were intentional on their part for the purpose of
committing frauds for the benefit of the protestees. There is
no allegation in the petition that because of the alleged
irregularities committed by the election officials in not
following the provisions of the election laws regarding the
registration of voters and the distribution of the precincts,
that all the votes cast during said elections are illegal, nor is
there an allegation in the protests that the irregularities
committed by the election officials would affect the election
in favor of the protestees." 7
A greater regard for the cause of accuracy ought to have
admonished the lower court from asserting in an
uncompromising tone the absence of an allegation that the
protestants in both cases failed to allege that if the facts
pleaded by them were proved the result would not have
been different. It is true the complaints could have been
more explicitly worded, but as they stood, the absence of
such a claim could not be so confidently asserted.
To repeat, both protests were dismissed. We do not
discount a certain degree of plausibility attaching to the line
of reasoning thus pursued by the lower court. We are not
unaware of the undeniable fact that both petitions were not
distinguished by skill in their drafting or precision in their
terminology. Nonetheless the seriousness and gravity of the
imputed failure to have the elections conducted freely and
honestly, with such irregularities alleged, give rise to doubts,
rational and honest, as to who were the duly elected
officials. Such allegations, it is to be stressed, would have to
be accepted at their face value for the purpose of
determining whether there is a cause of action, a motion to
dismiss amounting to a hypothetical admission of facts thus
pleaded. We cannot in law and in conscience then sustain
the order of dismissal.
Without the lower court having so intended, the dismissal
would amount to judicial abnegation of a sworn duty to
inquire into and pass upon in an appropriate proceeding
allegations of misconduct and misdeeds of such character.
Accordingly, we reverse.
Abes v. Commission on Elections 8 points the way, but the
lower court was apparently impervious to its teaching. It may
not be controlling, but it furnishes more than a hint. It would
seem, though, that for the court below, its message did not
ring out loud and clear.
The opinion in the Abes case, penned by Justice Sanchez,
starts thus: "Petitioner's cry for relief, so their petition avers,
is planted upon the constitutional mandate of free, orderly,
and honest elections. Specifically, they list a number of
repressible acts." Among those mentioned were that blank
official registration forms were taken from the office of the
Quezon City Comelec Register several weeks before
election day, November 14, 1967; that active campaigning
within the polling places by Nacionalista leaders or
sympathizers of Nacionalista candidates were allowed; that
voters were permitted to vote on mere mimeographed
notices of certain Nacionalista candidates; that voters were
compelled to fill their official ballots on open tables, desks
and in many precincts outside the polling places; that
thousands of voters sympathetic to the Nacionalista
candidates were allowed to vote beyond the hours for voting
allowed by law; that identification cards were delivered by
partisan leaders of respondents Nacionalista candidates,
and those who did not signify their preference for
Nacionalista candidates were not given such cards; that the
precinct books of voters were not sealed within the deadline
fixed by law; and that the resulting effect of irregularities was
to prevent full fifty-one per cent of the registered voters from
voting.
One of the issues raised on the above facts is whether or
not the Commission on Elections could annul the aforesaid
election in Quezon City on the above allegations of fraud,
terrorism and other illegal practices committed before and
during the election. The petition did not prosper; it was
dismissed. The remedy, we held, lay not with the
Commission on Elections but with the courts of justice in an
election protest.
In the language of Justice Sanchez: "The boundaries of the
forbidden area into which Comelec may not tread are also
marked by jurisprudence. That Comelec is not the proper
forum to seek annulment of an election based on terrorism,
frauds and other illegal practices, is a principle emphasized
in decisions of this Court." For as announced in Nacionalista
Party v. Commission on Elections, 9 assuming that there be
a failure to conduct an election in a free, orderly and honest
manner, "the duty to cure or remedy the resulting evil" did
not rest with the Commission on Elections but in "some
other agencies of the Government." More specifically, with
reference to provincial and municipal officials, election
contests "are entrusted to the courts." Then came this
express affirmation: "The power to decide election contests
necessarily includes the power to determine the validity or
nullity of the votes questioned by either of the contestants." .
As so emphatically observed in the Abes opinion, "there has
been neither deviation nor retreat from the foregoing
pronouncement." After which came the following: "The
ratiocination advanced that there was failure of election due
to rampancy of terrorism, frauds, and other irregularities,
before and during elections, such that allegedly about 51%
of the registered voters were not able to vote, will not carry
the day for petitioners. For, in the first place, this is
grounded upon bare assertions. Respondents contest the
correctness thereof. And in the answer of respondents
Amoranto, Mathay and others, they aver that out of 162,457
registered voters in Quezon City, 100,382 voters actually
cast their votes — about 62% of the registered voters. But
above all, as pointed out in City Board of Canvassers vs.
Moscoso, [the] nullity of an election for municipal officials
should be determined in a petition contesting the election of
municipal officers-elect to be filed before the Court of First
Instance."
Why an election protest is more fitly and appropriately the
procedure for determining whether irregularities or serious
violations of the electoral law vitiated the conduct of
elections was clearly and succinctly explained in the
Moscoso decision above cited, the opinion coming from
Justice Makalintal. 10 Thus: "The question of whether or not
there had been terrorism, vote-buying and other
irregularities in the 1959 elections in Tacloban City should
be ventilated in a regular election protest, pursuant to
section 174 of the Election Code, and not in a petition to
enjoin the city board of canvassers from canvassing the
election returns and proclaiming the winning candidates for
municipal offices."
It would follow then that if the grievance relied upon is the
widespread irregularities and the flagrant violations of the
election law, the proper remedy is the one availed of here,
the protest.
That such should be the case should occasion no surprise.
Time and time again, 11 we have stressed the importance of
preserving inviolate the right of suffrage. If that right be
disregarded or frittered away, then popular sovereignty
becomes a myth.
As Justice Laurel correctly pointed out: "As long as popular
government is an end to be achieved and safeguarded,
suffrage, whatever may be the modality and form devised,
must continue to be the means by which the great reservoir
of power must be emptied into the receptacular agencies
wrought by the people through their Constitution in the
interest of good government and the common weal.
Republicanism, in so far as it implies the adoption of a
representative type of government, necessarily points to the
enfranchised citizen as a particle of popular sovereignty and
as the ultimate source of the established authority." 12
A republic then to be true to its name requires that the
government rests on the consent of the people, consent
freely given, intelligently arrived at, honestly recorded, and
thereafter counted. Only thus can they be really looked upon
as the ultimate sources of established authority. It is their
undeniable right to have officials of their unfettered choice.
The election law has no justification except as a means for
assuring a free, honest and orderly expression of their
views. It is of the essence that corruption and irregularities
should not be permitted to taint the electoral process.
It may not always be thus unfortunately. That should be the
ideal however. If there be a failure to observe the mandates
of the Election Code, the aggrieved parties should not be left
remediless. Under the law as it stands, it is precisely an
election protest that fitly serves that purpose.lawphi1.nêt
It was sought to be thus utilized in these two cases, perhaps
in a rather awkward and far from entirely satisfactory
manner. Than itself is no reason for the courts to slam the
door against any opportunity for redress. Yet, that is what
would happen if the order of dismissal complained of were
not set aside.
Hence the inevitability of its reversal. The scope of our
decision must not be misinterpreted however. All that it
directs is that the protetees in both cases be required to
answer. Thereafter, if, as is not unlikely, there be a denial of
the serious imputations made as to the alleged irregularities,
the lower court could properly inquire into what actually
transpired. After the facts are thus ascertained in
accordance with the accepted procedural rules, then the
appropriate law could be applied.
It must be clearly emphasized that we do not at this stage
intimate any view as to the merit, or lack of it, of either
protest. That would be premature to say the least. All we do
is to set aside the order of dismissal.
WHEREFORE, the order of dismissal of March 23, 1968, is
reversed and the two cases remanded to the lower court for
proceeding and trial in accordance with this opinion and the
law. Without costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar,
Sanchez, Castro, Capistrano and Teehankee, JJ., concur.
 B. Powers of the Commission on Elections
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 104848 January 29, 1993
ANTONIO GALLARDO, ANTONIO AREVALO,
CRESENCIO ECHAVES, EMMANUEL ARANAS,
PALERMO SIA, RONNIE RAMBUYON, PRIMO
NAVARRO, and NOEL NAVARRO, petitioners,
vs.
HON. SINFOROSO V. TABAMO, JR., in his capacity as
Presiding Judge of Branch 28 of the Regional Trial
Court of Mambajao, Camiguin, and PEDRO P.
ROMUALDO, respondents.
Villarama & Cruz for petitioners.
Marciano LL. Aparte, Jr. for private respondents.
DAVIDE, JR., J.:
This is a petition for certiorari and prohibition under Rule 65
of the Revised Rules of Court. Petitioners would have Us
prohibit, restrain and enjoin public respondent Sinforoso V.
Tabamo, Jr., Presiding Judge of Branch 28 of the Regional
Trial Court (RTC) of Mambajao, Camiguin, from continuing
with the proceedings in a petition for injunction, prohibition
and mandamus with a prayer for a writ of preliminary
injunction and restraining order filed as a taxpayer's suit,
docketed therein as Special Civil Action No. 465 and entitled
"Pedro P. Romualdo, Jr. versus Gov. Antonio Gallardo, et
al." Petitioners likewise seek to prohibit the enforcement of
the Temporary Restraining Order (TRO), issued by the
respondent Judge on 10 April 1992, on the ground that the
latter acted whimsically, capriciously and without jurisdiction
when he took cognizance of the case and issued the said
order. It is the petitioners' thesis that the said case
principally involves an alleged violation of the provisions of
the Omnibus Election Code the jurisdiction over which is
exclusively vested in the Commission on Elections
(COMELEC). It is additionally averred that the action is
completely baseless, that the private respondent is not a
real party in interest and that the public respondent acted
with undue haste, manifest partiality and evident bias in
favor of the private respondent in issuing the TRO.
In Our Resolution of 20 April 1992, We required the
respondents to comment on the petition and issued a
Temporary Restraining Order directing the respondent
Judge to cease and desist from implementing and enforcing
the challenged Order of 10 April 1922, and from continuing
with the proceedings in Special Civil Action No. 465.
At the time of the filing of both the special civil action and the
instant petition, petitioner Antonio Gallardo was the
incumbent Governor of the Province of Camiguin and was
seeking re-election in the 11 May 1992 synchronized
elections. Petitioners Antonio Arevalo, Cresencio Echaves,
Emmanuel Aranas and Palermo Sia are the provincial
treasurer, provincial auditor, provincial engineer and
provincial budget officer of Camiguin, respectively. Their co-
petitioners Ronnie Rambuyon, Primo Navarro and Noel
Navarro are all government project laborers. On the other
hand, the private respondent was the incumbent
Congressman of the lone Congressional District of
Camiguin, a candidate for the same office in the said
synchronized elections and the Regional Chairman of the
Laban ng Demokratikong Pilipino (LDP) in Region X.
The antecedents of this case are not complicated.
On 10 April 1992, private respondent filed his
Petition 1 (Special Civil Action No. 465) before the court a
quo against petitioners Gallardo, Arevalo, Echaves, Aranas
and Sia to prohibit and restrain them from pursuing or
prosecuting certain public works projects; from releasing,
disbursing and/or spending any public funds for such
projects; and from issuing, using or availing of treasury
warrants or any device for the future delivery of money,
goods and other things of value chargeable against public
funds in connection with the said projects as (1) said
projects were undertaken in violation of the 45-day ban on
public works imposed by the Omnibus Election Code (Batas
Pambansa Blg. 881) because although they were initiated a
few days before 27 March 1992, the date the ban took
effect, they were not covered by detailed engineering plans,
specifications or a program of work which are preconditions
for the commencement of any public works project; hence,
they could not have been lawfully and validly undertaken; (2)
the hiring of hundreds of laborers in the different projects
continues unabated in flagrant violation of paragraphs (a),
(b), (v) and (w), Section 261 of the Omnibus Election Code;
(3) the projects were undertaken in violation of the
provisions of the Local Government Code2 governing the
use and expenditure of the twenty percent (20%)
development fund of the Province of Camiguin; (4) these
projects, which are "Locally-Funded", were pursued without
the requisite approval of the provincial budget by the
Regional Office of Budget and Management as required by
Section 326 of the Local Government Code; (5) some of the
projects which are "Foreign-Assisted" and funded by the
Spanish Assistance for Integrated Livelihood Program
(SAIL) lack the required building permits and are without any
relevance to those livelihood projects envisioned by the
SAIL; and (6) more importantly, as alleged in paragraph VII
of his Petition:3
. . . the illegal prosecution of these public work
projects requiring massive outlay of public
funds during this election period has been and
is being done maliciously and intentionally for
the purpose of corrupting the voters and
inducing them to support the candidacy of
Respondent Gallardo and his candidates in the
coming May 11, 1992 election.
In support of his prayer for a restraining order to be issued
upon the filing of the petition and a writ of preliminary
injunction immediately thereafter, herein private respondent
alleges in paragraph XV of his Petition:
That unless the illegal acts of Respondents are
enjoined or restrained immediately first by the
issuance of the restraining order upon the filing
of this Petition and immediately after that a
Writ of Preliminary Injunction, great or
irreparable loss and injury shall be caused not
only to Petitioner himself, as a candidate and
as a taxpayer, but also to the entire LDP slate
of candidates, whose supporters are being
corrupted and illegally induced to vote for
Respondent Antonio A. Gallardo and his
candidates in consideration of their
employment in these projects, but (sic) most of
all the greatest and most irreparable loss,
damage and injury, in terms of wanton,
irresponsible, excessive, abusive and flagrant
waste of public money, is now being caused
and shall continue to be caused, primarily and
principally to the sixty-thousand or more
taxpayers of the Province of Camiguin, whom
Petitioner represents as Congressman and
whose interests Petitioner is sworn to uphold,
promote and protect.4
The questioned projects are classified into two (2)
categories: (a ) those that are Locally-Funded, consisting of
twenty-nine (29) different projects for the maintenance or
concreting of various roads, the rehabilitation of the
Katibawasan Falls and the construction of the Capitol
Building, and (b) those designated as Foreign-Assisted,
consisting of fifteen (15) projects which include the
construction of the Human Resource Development Center,
various Day Care cum Production Centers and waterworks
systems; the extension and renovation of various buildings;
the acquisition of hospital and laboratory equipment; and the
rehabilitation of office and equipment.5
On the same day that the private respondent filed his
petition, public respondent Judge issued the questioned
TRO,6 the pertinent portion of which reads:
It appearing from the verified petition in this
case that great and irreparable damage and/or
injury shall be caused to the petitioner as
candidate and taxpayer, such damage and
injury taking the form and shape occasioned
by the alleged wanton, excessive, abusive and
flagrant waste of public money, before the
matter can be heard on notice, the
respondents are hereby Temporarily
Restrained from pursuing or prosecuting the
projects itemized in Annexes "A" and "A-1" of
the petition; from releasing, disbursing and/or
spending any public funds for such projects;
from issuing, using or availing of treasury
warrants or any device undertaking future
delivery of money, goods or other things of
value chargeable against public funds in
connection with said projects. (Emphasis
supplied).
In the same order, the public respondent directed the
petitioners to file their Answer within ten (10) days from
receipt of notice and set the hearing on the application for
the issuance of the writ of preliminary injunction for 24 April
1992. Instead of filing the Answer, the petitioners filed the
instant special civil action for certiorari and prohibition, with
a prayer for a writ of preliminary injunction and/or temporary
restraining order, alleging as grounds therefor the following:
I
PUBLIC RESPONDENT HAS NO
JURISDICTION OVER SPECIAL CIVIL
ACTION NO. 465, BEING (sic) A SUIT
INTENDED TO ENJOIN AN ALLEGED
VIOLATION OF THE OMNIBUS ELECTION
CODE.
II
REGIONAL TRIAL COURT'S JURISDICTION
IS LIMITED TO CRIMINAL ACTIONS FOR
VIOLATION OF THE OMNIBUS ELECTION
CODE.
III
THE REGIONAL TRIAL COURT HAS NO
JURISDICTION TO TAKE COGNIZANCE OF
COMPLAINTS/PETITION BASED ON
ELECTION OFFENSES PRIOR TO THE
CONDUCT OF PRELIMINARY
INVESTIGATION BY THE COMMISSION ON
ELECTIONS; FURTHER, PRIVATE
RESPONDENT HAS NO RIGHT TO FILE
SPECIAL CIVIL ACTION NO. 465 SINCE THE
AUTHORITY TO PROSECUTE ELECTION
OFFENSES BELONGS TO THE
COMMISSION ON ELECTIONS.
 IV
PRIVATE RESPONDENT FAILED TO
EXHAUST ALL HIS ADMINISTRATIVE
REMEDIES
V PETITIONERS IN ISSUING THE
THE PETITION DATED 09 APRIL 1992 FILED
WITH PUBLIC RESPONDENT IS
COMPLETELY BASELESS SINCE:
A. THE PUBLIC WORKS PROJECTS BEING
UNDERTAKEN BY PETITIONERS ARE EXEMPTED FROM
THE PUBLIC WORKS BAN ENFORCED BY THE
COMELEC.
B. THE PUBLIC WORKS PROJECTS WERE
COMMENCED ONLY AFTER APPROVAL OF THE
DETAILED ENGINEERING PLANS AND SPECIFICATIONS
AND PROGRAM OF WORK.
C. THE PUBLIC WORKS PROJECTS WERE PROPERLY
SUPPORTED BY A BUDGET DULY PASSED AND
APPROVED BY THE SANGGUNIANG PANLALAWIGAN.
D. THE DEVELOPMENT FUND MAY VALIDLY BE USED
TO FINANCE THE MAINTENANCE OF PROVINCIAL
ROADS.
VI
THE TAXPAYER'S SUIT FILED BY PRIVATE
RESPONDENT IS IMPROPER SINCE HE IS
NOT A REAL PARTY IN INTEREST.
VI
THE PUBLIC RESPONDENT ACTED WITH
UNDUE HASTE, MANIFEST PARTIALITY
AND EVIDENT BIAS IN FAVOR OF PRIVATE
RESPONDENT AND AGAINST
TEMPORARY RESTRAINING ORDER.7
As adverted to earlier, We issued a Temporary Restraining
Order on 20 April 1992.
After considering the allegations, issues and arguments
adduced in the Petition, the Comment thereto and the Reply
to the Comment, We gave due course8 to this Petition and
required the parties to submit their respective Memoranda
which they complied with.
The main issue in this case is whether or not the trial court
has jurisdiction over the subject matter of Special Civil
Action No. 465. The material operative facts alleged in the
petition therein inexorably link the private respondent's
principal grievance to alleged violations of paragraphs (a),
(b), (v) and (w), Section 261 of the Omnibus Election Code
(Batas Pambansa Blg. 881). There is particular emphasis on
the last two (2) paragraphs which read:
Sec. 261. Prohibited Acts. — The following
shall be guilty of an election offense:
(a) Vote-buying and vote-selling. —
xxx xxx xxx
(b) Conspiracy to bribe voters. —
xxx xxx xxx
 (v) Prohibition against release, disbursement
or expenditure of public funds. Any public
official or employee including barangay
officials and those of government-owned or
controlled corporations and their subsidiaries,
who, during forty-five days before a regular
election and thirty days before a special
election, releases, disburses or expends any
public funds for:
(1) Any and all kinds of public works, except
the following:
xxx xxx xxx
(w) Prohibition against construction of public
works, delivery of materials for public works
and issuance of treasury warrants and similar
devices. — During the period of forty-five days
preceding a regular election and thirty days
before a special election, any person who (a)
undertakes the construction of any public
works, except for projects or works exempted
in the preceding paragraph; or (b) issues, uses
or avails of treasury warrants or any device
undertaking future delivery of money, goods or
other things of value chargeable against public
funds.
Private respondent likewise focuses on Resolution No. 2332
(not 2322 as erroneously stated in page 10 of his Petition) of
the COMELEC, promulgated on 2 January 1992,
implementing the aforesaid paragraphs (v) and (w) of
Section 261 and fixing the duration of the 45-day ban for
purposes of the synchronized elections from 27 March 1992
to 11 May 1922.
Essentially, therefore, Civil Case No. 465 before the trial
court is for the enforcement of laws involving the conduct of
elections; corollarily, the issue that is logically provoked is
whether or not the trial court has jurisdiction over the same.
If the respondent Judge had only hearkened to this Court's
teaching about a quarter of a century earlier, this case would
not have reached Us and taken away from more deserving
cases so much precious time.
Zaldivar vs. Estenzo,9 decided by this Court on 3 May 1968,
had squarely resolved the issue above posed. Speaking
through then Associate Justice Enrique Fernando (who later
became Chief Justice), this Court explicitly ruled that
considering that the Commission on Elections is vested by
the Constitution with exclusive charge of the enforcement
and administration of all laws relative to the conduct of
elections, the assumption of jurisdiction by the trial court
over a case involving the enforcement of the Election Code
"is at war with the plain constitutional command, the
implementing statutory provisions, and the hospitable scope
afforded such grant of authority so clear and unmistakable in
recent decisions."10
Said case was decided under the aegis of the 1935
Constitution and R.A. No. 180, otherwise known as the
Revised Election Code, which took effect on 21 June 1947.
The present Constitution and extant election laws have
further strengthened the foundation for the above doctrine;
there can be no doubt that the present COMELEC has
broader powers than its predecessors. While under the 1935
Constitution it had "exclusive charge of the enforcement and
administration of all laws relative to the conduct of
elections," exercised "all other functions . . . conferred upon
it by law"11 and had the power to deputize all law
enforcement agencies and instrumentalities of the
Government for the purpose of insuring free, orderly and
honest elections,12 and under the 1973 Constitution it
had, inter alia, the power (a) "[E]nforce and administer all
laws relative to the conduct of elections"13 (b) "[D]eputize,
with the consent or at the instance of the Prime Minister, law
enforcement agencies and instrumentalities of the
Government, including the Armed Forces of the Philippines,
for the purpose of ensuring free, orderly, and honest
elections,"14 and (c) "[P]erform such other functions as may
be provided by law,"15 it was not expressly vested with the
power to promulgate regulations relative to the conduct of
an election. That power could only originate from a special
law enacted by Congress; this is the necessary implication
of the above constitutional provision authorizing the
Commission to "[P]erform such other functions as may be
provided by law."
The present Constitution, however, implicitly grants the
Commission the power to promulgate such rules and
regulations. The pertinent portion of Section 2 of Article IX-C
thereof reads as follows:
Sec. 2. The Commission on Elections shall
exercise the following powers and functions:
(1) Enforce and administer all laws
and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and
recall. (Emphasis supplied).
xxx xxx xxx
The word regulations is not found in either the 1935 or 1973
Constitutions. It is thus clear that its incorporation into the
present Constitution took into account the Commission's
power under the Omnibus Election Code (Batas Pambansa
Blg. 881), which was already in force when the said
Constitution was drafted and ratified, to:
xxx xxx xxx
Promulgate rules and regulations
implementing the provisions of this Code or
other laws which the Commission is required
to enforce and administer, . . . .16
Hence, the present Constitution upgraded to a
constitutional status the aforesaid statutory authority
to grant the Commission broader and more flexible
powers to effectively perform its duties and to insulate
it further from legislative intrusions. Doubtless, if its
rule-making power is made to depend on statutes,
Congress may withdraw the same at any time.
Indeed, the present Constitution envisions a truly
independent Commission on Elections committed to
ensure free, orderly, honest, peaceful and credible
elections,17 and to serve as the guardian of the
people's sacred right of suffrage — the citizenry's
vital weapon in effecting a peaceful change of
government and in achieving and promoting political
stability.
Additionally, by statutory mandate, the present Commission
on Elections possesses, inter alia, the following powers:
l) Exercise 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. In addition, it may authorize CMT
cadets eighteen years of age and above to act
as its deputies for the purpose of enforcing its
orders.
The Commission may relieve any officer or
employee referred to in the preceding
paragraph from the performance of his duties
 relating to electoral processes who violates the
election law or fails to comply with its
instructions, orders, decisions or rulings, and
appoint his substitute. Upon recommendation
of the Commission, the corresponding proper
authority shall suspend or remove from office
any or all of such officers or employees who
may, after due process, be found guilty of such
violation or failure.18
2) To stop any illegal election activity, or
confiscate, tear down, and stop any unlawful,
libelous, misleading or false election
propaganda, after due notice and hearing.19
Needless to say, the acts sought to be restrained in Special
Civil Action No. 465 before the court a quo are matters
falling within the exclusive jurisdiction of the Commission. As
a matter of fact, the specific allegations in the petition
therein of violations of paragraphs (a), (b), (v) and (w),
Section 261 of the Omnibus Election Code provide a
stronger basis and reason for the application of
the Zaldivar doctrine. At most, the facts in the latter case do
not illustrate as clearly the announced doctrine as the facts
in this case do. In Zaldivar, no specific provision of the
Revised Election Code then in force was alleged to have
been violated. What was sought to be enjoined was the
alleged wielding by Zaldivar, then a municipal mayor, of the
power, by virtue of his office, to appoint special policemen or
agents to terrorize voters into supporting the congressional
candidate of his choice. In holding that the then Court of
First Instance did not have jurisdiction over the case, this
Court considered the constitutional power of the
Commission on Elections to have exclusive charge of the
enforcement and administration of all laws relative to the
conduct of elections and to exercise all other functions
which may be conferred by law. We likewise relied on the
provisions of the Revised Election Code vesting upon the
COMELEC (a) direct and immediate supervision over
municipal, city and provincial officials designated by law to
perform duties relative to the conduct of elections and (b)
authority to suspend them from the performance of such
duties for failure to comply with its instructions, orders,
decisions or rulings and recommend to the President their
removal if found guilty of non-feasance, malfeasance or
misfeasance in connection with the performance of their
duties relative to the conduct of elections.20
Under the present law, however, except in case of urgent
need, the appointment or hiring of new employees or the
creation or filling up of new positions in any government
office, agency or instrumentality, whether national or local,
including government-owned or controlled corporations, is
banned during the period of forty-five (45) days before a
regular election and thirty (30) days before a special election
if made without the prior authority of the Commission on
Elections. A violation thereof constitutes an election
offense.21 Then too, no less than the present Constitution —
and not just the Election Law as was the case at the time
of Zaldivar — expressly provides that the Commission may
"[R]ecommend to the President the removal of any officer or
employee it has deputized, or the imposition of any other
disciplinary action, for violation or disregard of, or
disobedience to its directive, order, or decision."22
Moreover, the present Constitution also invests the
Commission with the power to "investigate and, where
appropriate, prosecute cases of violations of election laws,
including acts or omissions constituting election frauds,
offenses, and malpractices."23
It may thus be said without fear of contradiction that this vast
array of powers and functions now enjoyed by the
Commission under the present Constitution provides a
stronger foundation for, and adds vigor and vitality to,
the Zaldivar doctrine.
The rationale of the said doctrine needs to be stressed here
so that henceforth, no judge will lose his bearings when
confronted with the same issue. Otherwise, he should be
held to account for either the sheer ignorance of the law or
the callous disregard of pronouncements by this Court to
accommodate partisan political feelings. We declared in the
said case:
The question may be asked: Why should not
the judiciary be a
co-participant in this particular instance of
enforcing the Election Code as its authority
was invoked? The obvious answer is the literal
language of the Constitution which empowers
the Commission on Elections to "have
exclusive charge of the enforcement and
administration of all laws relative to the
conduct of the elections." Moreover, as was so
aptly observed by the then Justice Frankfurter,
although the situation confronting the United
States Supreme Court was of a different
character: "Nothing is clearer than that this
controversy concerns matters that brings
courts into immediate and active relations with
party contests. From the determination of such
issues this Court has traditionally held aloof. It
is hostile to a democratic system to involve the
judiciary in the politics of the people. And it is
not less pernicious if such judicial intervention
in an essentially political contest be dressed
up in the abstract phrases of the law."24 Then,
too, reference by analogy may be made to the
principle that sustains Albano v. Arranz. For
even without the express constitutional
prescription that only this Court may review the
decisions, orders and rulings of the
Commission on Elections, it is easy to
understand why no inference whatsoever with
the performance of the Commission on
Elections of its functions should be allowed
unless emanating from this Court. The
observation of Acting Chief Justice J.B.L.
Reyes in Albano v. Arranz,25 while not
precisely in point, indicates the proper
approach. Thus: "It is easy to realize the chaos
that would ensue if the Court of First Instance
of each and every province were to arrogate
unto itself the power to disregard, suspend, or
contradict any order of the Commission on
Elections; that constitutional body would be
speedily reduced to impotence."
This conclusion finds' support from a
consideration of weight and influence. What
happened in this case could be repeated
elsewhere. It is not improbable that courts of
first instance would be resorted to by leaders
of candidates or political factions entertaining
the belief whether rightly or wrongly that local
officials would employ all the power at their
command to assure the victory of their
candidates. Even if greater care and
circumspection, than did exist in this case,
would be employed by judges thus appealed
to, it is not unlikely that the shadow of
suspicion as to alleged partisanship would fall
on their actuations, whichever way the matter
before them is decided. It is imperative that the
faith in the impartiality of the judiciary be
preserved unimpaired. Whenever, therefore,
the fear may be plausibly entertained that an
assumption of jurisdiction would lead to a
lessening of the undiminished trust that should
be reposed in the courts and the absence of
authority discernible the from the wording of
applicable statutory provisions and the trend of
 judicial decisions, even if no constitutional
mandate as that present in this case could be
relied upon, there should be no hesitancy in
declining to act.26
The foregoing disquisitions should have rendered
unnecessary the resolution of the remaining collateral issues
raised in this petition. In view, however, of their importance,
they will be dealt with in a general way.
It is not true that, as contended by the petitioners, the
jurisdiction of the Regional Trial Court under the election
laws is limited to criminal actions for violations of the
Omnibus Election Code. The Constitution itself grants to it
exclusive original jurisdiction over contests involving elective
municipal officials.27 Neither can We agree with the
petitioners' assertion that the Special Civil Action filed in the
court below involves the prosecution of election offenses;
the said action seeks some reliefs incident to or in
connection with alleged election offenses; specifically, what
is sought is the prevention of the further commission of
these offenses which, by their alleged nature, are
continuing.
There is as well no merit in the petitioners' claim that the
private respondent has no legal standing to initiate the filing
of a complaint for a violation of the Omnibus Election Code.
There is nothing in the law to prevent any citizen from
exposing the commission of an election offense and from
filing a complaint in connection therewith. On the contrary,
under the COMELEC Rules of Procedure, initiation of
complaints for election offenses may be done motu
propio by the Commission on Elections or upon written
complaint by any citizen, candidate or registered political
party or organization under the party-list system or any of
the accredited citizens arms of the Commission.28However,
such written complaints should be filed with the "Law
Department of the Commission; or with the offices of the
Election Registrars, Provincial Election Supervisors or
Regional Election Directors, or the State Prosecutor,
Provincial Fiscal or City Fiscal."29 As earlier intimated, the
private respondent was not seriously concerned with the
criminal aspect of his alleged grievances. He merely sought
a stoppage of the public works projects because of their
alleged adverse effect on his candidacy. Indeed, while he
may have had reason to fear and may have even done the
right thing, he committed a serious procedural misstep and
invoked the wrong authority.
We have, therefore, no alternative but to grant this petition
on the basis Our resolution of the principal issue.
Nevertheless, it must be strongly emphasized that in so
holding that the trial court has no jurisdiction over the
subject matter of Special Civil Action No. 465, We are not to
be understood as approving of the acts complained of by the
private respondent. If his charges for the violation of
paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus
Election Code are true, then no one should be spared from
the full force of the law. No government official should flout
laws designed to ensure the holding of free, orderly, honest,
peaceful and credible elections or make a mockery of our
electoral processes. The bitter lessons of the past have
shown that only elections of that nature or character can
guarantee a peaceful and orderly change. It is then his duty
to respect, preserve and enhance an institution which is vital
in any democratic society.
WHEREFORE, the instant Petition is hereby GRANTED.
The challenged order of respondent Judge of 10 April 1992
in Special Civil Action No. 465 is SET ASIDE and said Civil
Case is hereby ordered DISMISSED, without prejudice on
the part of the private respondent to file, if he is so minded,
the appropriate complaint for an election offense pursuant to
the COMELEC Rules of Procedure.
Costs against the private respondents.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 112093 October 4, 1994
ANTONIO V.A. TAN, petitioner,
vs.
COMMISSION ON ELECTIONS, RUSTICO T. ILAGAN,
Regional Election Director, Commission on Elections,
Region XI, Davao City, and SENFORIANO B.
ALTERADO, respondents.
Leonido C. Delante for petitioner.
Eduardo C. de Vera for Atty. S.B. Alterado.
VITUG, J.:
On 10 May 1992, petitioner, as incumbent city Prosecutor of
Davao City, was designated by the Commission on
Elections ("COMELEC") as
Vice-Chairman of the City Board of Canvassers of Davao
City for the 11th May 1992 synchronized national and local
elections conformably with the provisions of Section 20(a) of
Republic Act No. 6646 and Section 221(b) of the Omnibus
Election Code (B.P. Blg. 881).
On the basis of the votes canvassed by the Board of
Canvassers, Manuel Garcia was proclaimed the winning
candidate for a congressional seat to represent the Second
District of Davao City in the House of Representatives.
Private respondent Alterado, himself a candidate for the
position, filed a number of cases questioning the validity of
the proclamation of Manuel Garcia and accusing the
members of the City Board of Canvassers of "unlawful,
erroneous, incomplete and irregular canvass." Meanwhile,
the electoral protest of private respondent Alterado was
dismissed by the House of Representatives Electoral
Tribunal ("HRET"). The criminal complaint for "Falsification
of Public Documents and Violation of the Anti-Graft and
Corrupt Practices Act" before the Office of the Ombudsman
was likewise dismissed on the ground of lack of criminal
intent on the part of therein respondents. Still pending is an
administrative charge, the case now before us, instituted in
the COMELEC against the City Board of Canvassers,
including herein petitioner, for "Misconduct, Neglect of Duty,
Gross Incompetence and Acts Inimical to the Service."
Petitioner moved to dismiss the administrative complaint
against him for alleged lack of jurisdiction of the COMELEC
thereover, he being under the Executive Department of the
government. The COMELEC denied petitioner's motion to
dismiss.
Hence, the instant petition.
Petitioner contends that the COMELEC has committed
grave abuse of discretion and acted without jurisdiction in
continuing to take action on the administrative case. He
argues that —
1) Petitioner is the City Prosecutor of Davao
City. His office belongs to the executive branch
of the government, more particularly to the
Department of Justice. As such, he is under
the administrative jurisdiction of the said
department and not of respondent COMELEC.
 2) The Civil Service Law provides that
department heads "shall have jurisdiction to
investigate and decide matters involving
disciplinary action against officers under their
jurisdiction" (Section 47[b], P.D. 807).
3) Section 2, Article IX of the 1987 Constitution
which authorizes respondent COMELEC to
deputize public officers belonging to the
executive department is for the purpose of
insuring free, orderly and honest elections. It
does not include and comprehend
administrative disciplinary jurisdiction over
officials belonging to the executive branch of
government. That jurisdiction over deputized
executive officers cannot be deemed to
include such powers as would allow
encroachment into the domain of the executive
branch under guise of administering laws
relative to elections.
4) Section 38 of P.D. 807 cited by respondents
COMELEC and Ilagan as basis for their
authority to investigate petitioner (Annex G)
offers no help to said respondents. The said
provision merely lays down the procedure for
administrative cases against non-presidential
appointees. Petitioner here, the city prosecutor
for Davao City is a presidential appointee.1
We find ourselves being unable to sustain the petition.
The COMELEC's authority under Section 2(6-8), Article IX,
of the Constitution is virtually all-encompassing when it
comes to election matters. In respect particularly to
sanctions against election offenses, we quote:
Sec. 2. The Commission on Elections shall
exercise the following powers and functions:
(6) File, upon a verified complaint, or on its
own initiative, petitions in court for inclusion or
exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of
election laws, including acts or omission
constituting election frauds, offenses, and
malpractices.
(8) Recommend to the President the removal
of any officer or employee it has deputized or
the imposition of any other disciplinary action,
for violation or disregard of, or disobedience to
its directive, order, or decision.
Additionally, Section 52, Article VII, of the Omnibus Election
Code, provides:
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 insuring
free, orderly and honest elections, and shall:
a. Exercise 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. In addition, it may authorize CMP
Cadets eighteen years of age and above to act
 as its deputies for the purpose of enforcing its
orders.
The Commission may relieve any officer or
employee referred to in the preceding
paragraph from the performance of his duties
relating to electoral processes who violates the
election law or fails to comply with its
instructions, orders, decisions or rulings, and
appoint his substitute. Upon recommendation
of the Commission, the corresponding proper
authority shall suspend or remove from office
any or all of such officers or employees who
may, after due process, be found guilty of such
violation or failure.
It should be stressed that the administrative case against
petitioner, taken cognizance of by, and still pending with, the
COMELEC, is in relation to the performance of his duties as
an election canvasser and not as a city prosecutor. The
COMELEC's mandate includes its authority to exercise
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. In order to help ensure that such
duly deputized officials and employees of government carry
out their respective assigned tasks, the law has also
provided than upon the COMELEC's recommendation, the
corresponding proper authority (the Secretary of the
Department of Justice in the case at bar) shall take
appropriate action, either to suspend or remove from office
the officer or employee who may, after due process, be
found guilty of violation of election laws or failure to comply
with instructions, orders, decision or rulings of the
COMELEC.
Unavoidably, the COMELEC, prior to making its
recommendation, must first satisfy itself that there indeed
has been an infraction of the law, or of its directives issued
conformably therewith, by the person administratively
charged. It also stands to reason that it is the COMELEC,
being in the best position to assess how its deputized
officials and employees perform or have performed in their
duties, that should conduct the administrative inquiry. To say
that the COMELEC is without jurisdiction to look into
charges of election offenses committed by officials and
employees of government outside the regular employ of the
COMELEC would be to unduly deny to it the proper and
sound exercise of such recommendatory power and,
perhaps more than that, even a possible denial of due
process to the official or employee concerned.
Observe, nevertheless, that the COMELEC merely may
issue a recommendation for disciplinary action but that it is
the executive department to which the charged official or
employee belongs which has the ultimate authority to
impose the disciplinary penalty. The law then does not
detract from, but is congruent with, the general
administrative authority of the department of government
concerned over its own personnel.
Petitioner's assertion that private respondent Alterado has
resorted to forum-shopping is unacceptable. The
investigation then being conducted by the Ombudsman on
the criminal case for falsification and violation of the Anti-
Graft and Corrupt Practices Act, on the one hand, and the
inquiry into the administrative charges by the COMELEC, on
the other hand, are entirely independent proceedings.
Neither would the results in one conclude the other. Thus,
an absolution from a criminal charge is not a bar to an
administrative prosecution (Office of the Court Administrator
vs. Enriquez, 218
SCRA 1), or vice versa. So, also, the dismissal by the
COMELEC of SPC Case No. 92-232 on the ground that the
case constituted an electoral protest within the jurisdiction of
the HRET and not of the COMELEC (affirmed by this Court
in G.R. No. 106452) does not necessarily foreclosure the
matter of possible liability, if warranted, of those who might
have improperly acted in the canvass of votes.

There are other issues, mainly factual, that are raised and
averred to show petitioner's innocence from the
administrative charges. Petitioner's allegations may well be
true but this petition at bench may not preempt the
determination of those factual matters yet to be passed
upon in the pending administrative proceedings.

WHEREFORE, the instant petition is DISMISSED. No costs.

SO ORDERED.

Narvasa, C.J., Cruz, Feliciano, Regalado, Davide, Jr.,

Romero, Bellosillo, Melo, Quiason, Puno, Kapunan and
Mendoza, JJ., concur.

Padilla and Bidin, JJ., are on leave.

 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 118702 March 16, 1995
CIRILO ROY G. MONTEJO, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
SERGIO A.F. APOSTOL, intervenor.
PUNO, J.:
More than political fortunes are at stake in the case at
bench. Petitioner Cirilo Roy G. Montejo, representing the
First District of Leyte, pleads for the annulment of section 1
of Resolution No. 2736 of the COMELEC, redistricting
certain municipalities in Leyte, on the ground that it violates
the principle of equality of representation. To remedy the
alleged inequity, petitioner seeks to transfer the municipality
of Tolosa from his district to the Second District of the
province. Intervenor Sergio A.F. Apostol, representing the
Second District, vigorously opposed the inclusion
of Tolosa in his district. We gave due course to the petition
considering that, at bottom, it involves the validity of the
unprecedented exercise by the COMELEC of the legislative
power of redistricting and reapportionment.
The province of Leyte with the cities of Tacloban and Ormoc
is composed of five (5) legislative districts.1
The first district2 covers Tacloban City and the municipalities
of Alangalang, Babatngon, Palo, San Miguel, Sta. Fe,
Tanauan and Tolosa.
The second district3 is composed of the municipalities of
Barugo, Barauen, Capoocan, Carigara, Dagami, Dulag,
Jaro, Julita, La Pat, Mayorga, MacArthur, Pastrana,
Tabontabon, and Tunga.
The third district4 is composed of the municipalities of
Almeria, Biliran, Cabucgayan, Caibiran, Calubian, Culaba,
Kawayan, Leyte, Maripipi, Naval, San Isidro, Tabango, and
Villaba.
The fourth district5 is composed of Ormoc City and the
municipalities of Albuera, Isabel, Kananga, Matagob,
Merida, and Palompon.
The fifth district6 is composed of the municipalities of
Abuyog, Bate, Baybay, Hilongos, Hindang, Inopacan, Javier,
Mahaplag, and Matalom.
Biliran, located in the third district of Leyte , was made its
sub-province by virtue of Republic Act No. 2141 Section 1 of
the law spelled out enacted on April 8, 1959.7
Section 1 of the law spelled out the municipalities
comprising the sub-province, viz.: "Almeria, Biliran,
Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi and
Naval and all the territories comprised therein."
On January 1, 1992, the Local Government Code took
effect. Pursuant to its Section 462, the sub-province of
Biliran became a regular province. It provides:
Existing sub-provinces are hereby converted into regular
provinces upon approval by a majority of the votes cast in a
plebiscite to be held in the sub-provinces and the original
provinces directly affected. The plebiscite shall be
conducted by the COMELEC simultaneously with the
national elections following the effectivity of this code. The
new legislative districts created as a result of such
conversion shall continue to be represented in Congress by 5. San Miguel, 13,438 8,167
the duly-elected representatives of the original districts out 6. Sta. Fe, 12,119 7,497
of which said new provinces or districts were created until 7. Tanauan and, 38,033 22,357
their own representatives shall have been elected in the 8. Tolosa; 13,299 7,700
next regular congressional elections and qualified. ———— ————
TOTAL 303,349 178,688
The conversion of Biliran into a regular province was
approved by a majority of the votes cast in a plebiscite held Second District: Population
on May 11, 1992. As a consequence of the conversion, Registered
eight (8) municipalities of the Third District composed the Voters
new province of Biliran, i.e., Almeria, Biliran, Cabucgayan, (1990) (1994)
Caibiran, Culaba, Kawayan, Maripipi, and Naval. A further
consequence was to reduce the Third District to five (5) 1. Barugo, 23,817 13,237
municipalities with a total population of 145,067 as per the 2. Barauen, 46,029 23,307
1990 census. 3. Carigara 38,863 22,036
4. Dagami, 25,606 16,519
To remedy the resulting inequality in the distribution of 5. Dulag, 33,020 19,375
inhabitants, voters and municipalities in the province of 6. Jaro, 31,727 17,139
Leyte, respondent COMELEC held consultation meetings 7. Julita, 9,944 6,196
with the incumbent representatives of the province and other 8. La Paz, 14,311 9,003
interested parties. On December 29, 1994, it promulgated 9. Mayorga, 10,530 5,868
Resolution No. 2736 where, among others, it transferred the 10. Mac Arthur, 13,159 8,628
municipality of Capoocan of the Second District and the 11. Pastrana, 12,565 7,348
municipality of Palompon of the Fourth District to the Third 12. Tabontabon, and 7,183 4,419
District of Leyte. The composition of the First District which 13. Tunga; 5,413 3,387
includes the municipality of Tolosa and the composition of ———— ————
the Fifth District were not disturbed. After the movement of TOTAL 272,167 156,462
municipalities, the composition of the five (5) legislative
districts appeared as follows: Third District: Population
Registered
First District: Population Registered Voters
Voters (1990) (1994)
(1990) (1994)
1. Calubian, 25,968 16,649
1. Tacloban City, 137,190 81,679 2. Leyte, 32,575 16,415
2. Alangalang, 33,375 20,543 3. San Isidro, 24,442 14,916
3. Babatngon, 17,795 9,929 4. Tabango, 29,743 15,48
4. Palo, 38,100 20,816 5. Villaba, 32,339 21,227
 6. Capoocan, and 23,687 13,595
7. Palompon; 45,745 27,474
———— ————
TOTAL 214,499 125,763
Fourth District: Population
Registered
Voters
(1990) (1994)
1. Ormoc City, 129,456 75,140
2. Albuera, 32,395 17,493
3. Isabel, 33,389 21,889
4. Kananga, 36,288 19,873
5. Matagob, 15,474 9,407
6. Merida, and 22,345 12,474
———— ————
TOTAL 269,347 155,995
Fifth District: Population
Registered
Voters
(1990) (1994)
1. Abuyog, 47,265 28,682
2. Bato, 28,197 116,13
3. Baybay, 82,281 47,923
4. Hilongos, 48,617 26,871
5. Hindang, 16,272 9,659
6. Inopacan, 16,894 10,401
7. Javier, 18,658 11,713
8. Mahaplag, and 22,673 13,616
9. Matalom 28,291 16,247
———— ————
TOTAL 309,148 181,242
Petitioner Montejo filed a motion for reconsideration calling
the attention of respondent COMELEC, among others, to
the inequitable distribution of inhabitants and voters
between the First and Second Districts. He alleged that the
First District has 178,688 registered voters while the Second
District has 156,462 registered voters or a difference of
22,226 registered voters. To diminish the difference, he
proposed that the municipality of Tolosa with 7,7000
registered voters be transferred from the First to the Second
District. The motion was opposed by intervenor, Sergio A.F.
Apostol. Respondent Commission denied the motion ruling
that: (1) its adjustment of municipalities involved the least
disruption of the territorial composition of each district; and
(2) said adjustment complied with the constitutional
requirement that each legislative district shall comprise, as
far as practicable, contiguous, compact and adjacent
territory.
In this petition, petitioner insists that Section I of Resolution
No. 2736 violates the principle of equality of representation
ordained in the Constitution. Citing Wesberry
v. Sanders,8 he argues that respondent COMELEC violated
"the constitutional precept that as much as practicable one
man's vote in a congressional election is to be worth as
much as another's." The Solicitor General, in his Comment,
concurred with the views of the petitioner. The intervenor,
however, opposed the petition on two (2) grounds: (1)
COMELEC has no jurisdiction to promulgate Resolution No.
2736; and (2) assuming it has jurisdiction, said Resolution is
in accord with the Constitution. Respondent COMELEC filed
its own Comment alleging that it acted within the parameters
of the Constitution.
We find section 1 of Resolution No. 2736 void.
While the petition at bench presents a significant issue, our
first inquiry will relate to the constitutional power of the
respondent COMELEC9 to transfer municipalities from one
legislative district to another legislative district in the
province of Leyte. The basic powers of respondent
COMELEC, as enforcer and administrator of our election
laws, are spelled out in black and white in section 2(c),
Article IX of the Constitution. Rightly, respondent COMELEC
does not invoke this provision but relies on the Ordinance
appended to the 1987 Constitution as the source of
its power of redistricting which is traditionally regarded as
part of the power to make laws. The Ordinance is entitled
"Apportioning the Seats of the House of Representatives of
the Congress of the Philippines to the Different Legislative
Districts in Provinces and Cities and the Metropolitan Manila
Area." Its substantive sections state:
Sec. 1. For purposes of the election of
Members of the House of Representatives of
the First Congress of the Philippines under the
Constitution proposed by the 1986
Constitutional Commission and subsequent
elections, and until otherwise provided by law,
the Members thereof shall be elected from
legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila
Area as follows:
xxx xxx xxx
Sec. 2. The Commission on Elections is
hereby empowered to make minor
adjustments of the reapportionment herein
made.
Sec. 3. Any province that may hereafter be
created, or any city whose population may
hereafter increase to more than two hundred
fifty thousand shall be entitled in the
immediately following election to at least one
Member or such number of Members as it may
be entitled to on the basis of the number of its
inhabitants and according to the standards set
forth in paragraph (3), Section 5 of Article VI of
the Constitution. The number of
Members apportioned to the province out of
which such new province was created or
where the city, whose population has so
increased, is geographically located shall be
correspondingly adjusted by the Commission
on Elections but such adjustment shall not be
made within one hundred and twenty days
before the election. (Emphasis supplied)
The Ordinance was made necessary because Proclamation
No. 3 10 of President Corazon C. Aquino, ordaining the
Provisional Constitution of the Republic of the Philippines,
abolished the Batasang Pambansa. 11 She then exercised
legislative powers under the Provisional Constitution.12
The Ordinance was the principal handiwork of then
Commissioner Hilario G. Davide, Jr., 13 now a distinguished
member of this Court. The records reveal that the
Constitutional Commission had to resolve several prejudicial
issues before authorizing the first congressional elections
under the 1987 Constitution. Among the vital issues were:
whether the members of the House of Representatives
would be elected by district or by province; who shall
undertake the apportionment of the legislative districts;
and, how the apportionment should be
made.14Commissioner Davide, Jr. offered three (3) options
for the Commission to consider: (1) allow President Aquino
to do the apportionment by law; (2) empower the COMELEC
to make the apportionment; or (3) let the Commission
exercise the power by way of an Ordinance appended to the
Constitution. 15 The different dimensions of the options were
discussed by Commissioners Davide, Felicitas S. Aquino
and Blas F. Ople. We quote the debates in extenso, viz.:16
xxx xxx xxx
MR. PADILLA. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir).
Commissioner Padilla is recognized.
MR. PADILLA. I think I have filed a very simple
motion by way of amendment by substitution
and this was, I believe, a prior or a proposed
amendment. Also, the chairman of the
Committee on the Legislative said that he was
proposing a vote first by the Chamber on the
concept of whether the election is by province
and cities on the one hand, or by legislative
districts on the other. So I propose this simple
formulation which reads: "FOR THE FIRST
ELECTION UNDER THIS CONSTITUTION
THE LEGISLATIVE DISTRICTS SHALL BE
APPORTIONED BY THE COMMISSION ON
ELECTIONS." I hope the chairman will accept
the proposed amendment.
SUSPENSION OF SESSION
MR. DAVIDE. The effect is, more or less, the
same insofar as the apportionment is
concerned, but the Bernas-Sarmiento et al.
proposal would also provide for a mandate for
the apportionment later, meaning after the first
election, which will in effect embody what the
Commission had approved, reading as follows:
"Within three years following the return of
every census, the Congress shall make a
reapportionment of legislative districts based
on the standards provided in this section."
So, Mr. Presiding Officer, may I request for a
suspension of the session, so that all the
proponents can work together.
THE PRESIDING OFFICER (Mr. Jamir). The
session is suspended.
It was 3:33 p.m.
RESUMPTION OF SESSION
At 3:40 p.m., the session was resumed.
THE PRESIDING OFFICER (Mr. Jamir). The
session is resumed.
Commissioner Davide is recognized.
MR. DAVIDE. Mr. Presiding Officer, as a
compromise, I wonder if the Commission will
allow this. We will just delete the proposed
subparagraph (4) and all the capitalized words
in paragraph (5). So that in paragraph (5),
what would be left would only be the following:
"Within three years following the return of
every census, the Congress shall make a
reapportionment of legislative districts based
on the standards provided in this section."
But we shall have an ordinance appended to
the new Constitution indicating specifically the
following: "FOR PURPOSES OF THE
ELECTION OF MEMBERS OF THE HOUSE
OF REPRESENTATIVES IN THE FIRST
CONGRESSIONAL ELECTION
IMMEDIATELY FOLLOWING THE
RATIFICATION OF THIS CONSTITUTION
PROPOSED BY THE 1986
CONSTITUTIONAL COMMISSION AND
SUBSEQUENT ELECTIONS AND UNTIL
OTHERWISE PROVIDED BY LAW, THE
MEMBERS OF THE HOUSE OF
REPRESENTATIVES SHALL BE ELECTED
FROM LEGISLATIVE DISTRICTS
APPORTIONED AMONG THE PROVINCES,
CITIES AND THE METROPOLITAN MANILA
AREA AS FOLLOWS."
And what will follow will be the allocation of
seats to Metropolitan Manila Area, to the
provinces and to the cities, without indicating
the municipalities comprising each of the
districts. Then, under Section 2, we will
mandate the COMELEC to make the actual
apportionment on the basis of the number of
seats provided for and allocated to each
province by us.
MS. AQUINO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir).
Commissioner Aquino is recognized.
MS. AQUINO. I have to object to the provision
which will give mandate to COMELEC to do
the redistricting. Redistricting is vitally linked to
the baneful practices of cutting up areas or
spheres of influence; in other words,
gerrymandering. This Commission, being a
nonpartisan, a nonpolitical deliberative body, is
in the best possible situation under the
circumstances to undertake that responsibility.
We are not wanting in expertise and in time
because in the first place, the Committee on
the Legislative has prepared the report on the
basis of the recommendation of the
COMELEC.
MR. OPLE. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir).
Commissioner Ople is recognized.
MR. OPLE. I would like to support the position
taken by Commissioner Aquino in this respect.
We know that the reapportionment of
provinces and cities for the purpose of
redistricting is generally inherent in the
constituent power or in the legislative power.
And I would feel very uncertain about
delegating this to a quasi-judicial body even if
it is one of the constitutional offices created
under this Constitution. We have the
assurance of Commissioner Davide, as
chairman of the Committee on the Legislative,
that even given the very short time remaining
in the life of this Commission, there is no
reason why we cannot complete the work of
reapportionment on the basis of the
COMELEC plan which the committee has
already thoroughly studied and which remains
available to the Constitutional Commission.
So, I support the position taken by
Commissioner Aquino, Mr. Presiding Officer. I
think, it is the safest, the most reasonable, and
the most workable approach that is available
to this Commission.
THE PRESIDING OFFICER (Mr. Jamir). What
does Commissioner Davide say:
MR. DAVIDE. The issue now is whether this
body will make the apportionment itself or
whether we will leave it to the COMELEC. So,
there arises, therefore, a prejudicial question
for the body to decide. I would propose that
the Commission should now decide what body
should make the apportionment. Should it be
the Commission or should it be the
COMELEC? And the Committee on the
Legislative will act accordingly on the basis of
the decision.
MR. BENGZON. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir).
Commissioner Bengzon is recognized.
MR. BENGZON. Apropos of that, I would like
to inform the body that I believe the Committee
on the Legislative has precisely worked on this
matter and they are ready with a list of
apportionment. They have, in fact, apportioned
the whole country into various districts based
on the recommendation of the COMELEC. So
they are ready with the list and if this body
would wish to apportion the whole country by
district itself, then I believe we have the time to
do it because the Committee on the Legislative
is ready with that particular report which need
only to be appended to the Constitution. So if
this body is ready to accept the work of the
Committee on the Legislative we would have
no problem. I just would like to give that
information so that the people here would be
guided accordingly when they vote.
MR. RODRIGO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir)
Commissioner Rodrigo is recognized.
MR. RODRIGO. I just would like to ask
Commissioner Davide some questions.
THE PRESIDING OFFICER (Mr. Jamir).
Commissioner Davide may yield if he so
desires.
MR. DAVIDE. Gladly.
MR. RODRIGO. Will this apportionment which
we are considering apply only to the first
election after the enactment of the
Constitution?
MR. DAVIDE. On the basis of the Padilla
proposal, it will be for the first election; on the
basis of the Sarmiento proposal, it will only
apply to the first election.
MR. RODRIGO. And after that, Congress will
have the power to reapportion.
MR. DAVIDE. Yes.
MR. RODRIGO. So, if we attach this to the
Constitution — the reapportionment based on
the COMELEC study and between the
approval of the Constitution and the first
election — the COMELEC no longer has the
power to change that even a bit.
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Jamir)
Commissioner Regalado is recognized.
MR. REGALADO. May I address a clarificatory
question to Commissioner Davide?
THE PRESIDING OFFICER (Mr. Jamir).
Gentleman will please proceed.
MR. REGALADO. On the basis of the
Commissioner's proposed apportionment and
considering the fact that there will be a
corresponding reduction to 183 seats, would
there be instances representation of under
non-representation?
MR. DAVIDE. None at all, Mr. Presiding
Officer. I can assure the Commission that
there will be no case of inequitable distribution.
It will come out to be one for every 350 to
400,000 inhabitants.
MR. REGALADO. And that would be within the
standard that we refer.
MR. DAVIDE. Yes, Mr. Presiding Officer.
MR. REGALADO. Thank you.
MR. RAMA. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir). The
Floor Leader is recognized.
MR. RAMA. The parliamentary situation is that
there was a motion by Commissioner
Sarmiento to mandate COMELEC to do the
redistricting. This was also almost the same
motion by Commissioner Padilla and I think we
have had some kind of meeting of minds. On
the other hand, there seems to be a prejudicial
question, an amendment to the amendment as
suggested by Commissioner Aquino, that
instead of the COMELEC, it should be this
Commission that shall make the redistricting.
So may I ask Commissioner Aquino, if she
insists on that idea, to please formulate it into
a motion so we can vote on that first as an
amendment to the amendment.
THE PRESIDING OFFICER (Mr.
Jamir).Commissioner Aquino is recognized.
MS . AQUINO. The motion is for this
Commission to undertake the apportionment of
the legislative districts instead of the proposal
that COMELEC be given the mandate to
undertake the responsibility.
xxx xxx xxx
MR. SARMIENTO. May I be clarified, Mr.
Presiding Officer. Is it the motion or the
proposed amendment?
THE PRESIDING OFFICER (Mr. Jamir). The
proposed amendment.
MR. SARMIENTO. May we move for the
approval of this proposed amendment which
we substitute for paragraphs 4 and 5.
MR. DAVIDE. May I request that it should be
treated merely as a motion to be followed by a
deletion of paragraph 4 because that should
not really appear as a paragraph in Section 5;
otherwise, it will appear very ugly in the
Constitution where we mandate a Commission
that will become functus officio to have the
authority. As a matter of fact, we cannot
exercise that authority until after the ratification
of the new Constitution.
THE PRESIDING OFFICER (Mr. Jamir). What
does Commissioner Sarmiento say?
MR. SARMIENTO. It is accepted, Mr.
Presiding Officer. So, may I move for the
approval of this proposed amendment.
MS. AQUINO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir).
Commissioner Aquino is recognized.
MS. AQUINO. Would that require a two-thirds
vote or a simple plurality to adopt that motion?
THE PRESIDING OFFICER (Mr. Jamir). That
will require a two-thirds vote.
MS. AQUINO. Thank you. Mr. Presiding
Officer.
MR. SARMIENTO. May I restate the motion,
Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir) The
Gentleman may proceed.
MR. SARMIENTO. May I move that this
Commission do the reapportionment legislative
districts.
MS. AQUINO. Mr. Presiding Officer.
THE PRESIDING OFFICER (Mr. Jamir). What
is the pleasure of Commissioner Aquino?
MS. AQUINO. May I be clarified again on the
motion. Is Commissioner Sarmiento, therefore,
adopting my motion? Would it not be right for
him to move that the COMELEC be
mandated?
MR. SARMIENTO. No, we accepted the
amendment. It is already the Commission that
will be mandated.
MS. AQUINO. So, the Gentlemen has
accepted the amendment the amendment.
Thank you.
MR. SARMIENTO. I am voting that this
Commission do the reapportionment.
VOTING
THE PRESIDING OFFICER (Mr. Jamir). Let
us proceed to vote.
As many as are in favor, please raise their
hand. (Several Members raised their hand.)
As many as are against, please raise their
hand. (No Member raised his hand.)
The results show 30 votes in favor and none
against; the motion is approved.
Clearly then, the Constitutional Commission denied to the
COMELEC the major power of legislative apportionment as
it itself exercised the power. Section 2 of the Ordinance only
empowered the COMELEC "to make minoradjustments of
the reapportionment herein made." The meaning of the
phrase "minor adjustments was again clarified in the
debates 17 of the Commission, viz.:
xxx xxx xxx
MR. GUINGONA. This is just clarificatory, Mr.
Presiding Officer. In Section 2, the
Commission on Elections is empowered to
make minor adjustments on the apportionment
made here.
MR. DAVIDE. Yes, Mr. Presiding Officer.
MR. GUINGONA. We have not set any time
limit for this.
MR. DAVIDE. We should not set a time limit
unless during the period of amendments a
proposal is made. The authority conferred
would be on minor corrections or
amendments, meaning to say, for instance,
that we may have forgotten an intervening
municipality in the enumeration, which ought to
be included in one district. That we shall
consider a minor amendment.
MR. GUINGONA. Thank you.
xxx xxx xxx
THE PRESIDING OFFICER (Mr. Romulo).
Commissioner de Castro is recognized.
MR. DE CASTRO. Thank you.
I was about to ask the committee the meaning
of minor adjustment. Can it be possible that
one municipality in a district be transferred to
another district and call it a minor adjustment?
MR. DAVIDE. That cannot be done,
Mr. Presiding Officer. Minor, meaning, that
there should be no change in the allocations
per district. However, it may happen that we
have forgotten a municipality in between which
is still in the territory of one assigned district, or
there may be an error in the correct name of a
particular municipality because of changes
made by the interim Batasang Pambansa and
the Regular Batasang Pambansa. There were
many batas pambansa enacted by both the
interim and the Regular Batasang Pambansa
changing the names of municipalities.
MR. DE CASTRO. So, the minor adjustment
may be made only if one of the municipalities
is not mentioned in the ordinance appended
to, and it will be up for the COMELEC now to
adjust or to put such municipality to a certain
district.
MR. DAVIDE. Yes, Mr. Presiding Officer. For
instance, we may not have the data regarding
a division of a municipality by the interim
Batasang Pambansa or the Regular Batasang
Pambansa into two municipalities, meaning, a
mother municipality and the new municipality,
but still actually these are within the
geographical district area.
MR. DE CASTRO. So the minor adjustment
which the COMELEC cannot do is that, if, for
example, my municipality is in the First District
of Laguna, they cannot put that in any other
district.
MR. DAVIDE. That is not even a minor
correction. It is a substantive one.
MR. DE CASTRO. Thank you.
Consistent with the limits of its power to make minor
adjustments, Section 3 of the Ordinance did not also give
the respondent COMELEC any authority to IN VIEW WHEREOF, section 1 of Resolution No. 2736
transfer municipalities from one legislative district to another insofar as it transferred the municipality of Capoocan of the
district. The power granted by Section 3 to the respondent Second District and the municipality of Palompon of the
COMELEC is to adjust the number of members (not Fourth District to the Third District of the province of Leyte,
municipalities) "apportioned to the province out of which is annulled and set aside. We also deny the Petition praying
such new province was created. . . ." for the transfer of the municipality of Tolosa from the First
District to the Second District of the province of Leyte. No
Prescinding from these premises, we hold that respondent costs.
COMELEC committed grave abuse of discretion amounting
to lack of jurisdiction when it promulgated section 1 of its SO ORDERED.
Resolution No. 2736 transferring the municipality of
Capoocan of the Second District and the municipality of Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide,
Palompon of the Fourth District to the Third District of Leyte. Jr., Romero, Bellosillo, Melo, Quiason, Vitug, Kapunan,
Mendoza and Francisco, JJ., concur.
It may well be that the conversion of Biliran from a sub-
province to a regular province brought about an imbalance
in the distribution of voters and inhabitants in the five (5)
legislative districts of the province of Leyte. This imbalance,
depending on its degree, could devalue a citizen's vote in
violation of the equal protection clause of the Constitution.
Be that as it may, it is not proper at this time for petitioner to
raise this issue using the case at bench as his legal vehicle.
The issue involves a problem of reapportionment of
legislative districts and petitioner's remedy lies with
Congress. Section 5(4), Article VI of the Constitution
categorically gives Congress the power to reapportion, thus:
"Within three (3) years following the return of every census,
the Congress shall make a reapportionment of legislative
districts based on the standards provided in this section."
In Macias v. COMELEC, 18 we ruled that the validity of a
legislative apportionment is a justiciable question. But while
this Court can strike down an unconstitutional
reapportionment, it cannot itself make the reapportionment
as petitioner would want us to do by directing respondent
COMELEC to transfer the municipality of Tolosa from the
First District to the Second District of the province of Leyte.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 124521 January 29, 1998
MICHAEL O. MASTURA, petitioner,
vs.
COMMISSION ON ELECTIONS (Second Division), THE
NEW MUNICIPAL BOARD OF CANVASSERS OF
MATANOG, MAGUINDANAO, THE NEW PROVINCIAL
BOARD OF CANVASSERS OF MAGUINDANAO and
DIDAGEN P. DILANGALEN, respondents.
BELLOSILLO, J.:
This Petition for Certiorari, Prohibition and Mandamus with
prayer for preliminary injunction and/or restraining order
seeks to reverse, annul or set aside: (a) the 29 February
1996 Order of public respondent Commission on Elections
(COMELEC) which annulled and set aside the canvass
made by the original Municipal Board of Canvassers of
Matanog, Maguindanao, created a new set of municipal and
provincial boards of canvassers and directing them to
recanvass the votes using the COMELEC copy of the
election returns and to proclaim the duly elected Member of
the House of Representatives, First District of Maguindanao;
(b) the 5 March 1996 Order of the COMELEC Second
Division which merely noted the Urgent Motion to Examine
and Verify the Canvassed MBC Copies of Election Returns,
COMELEC Copy of the Certificate of Canvass and the
accompanying Statement of Votes; (c) the 14 March 1996
Order denying the Urgent Motion to Defer Implementation of
the 29 February 1996 Order; and, (d) the 20 March 1996
order denying Masturas Motion for Reconsideration of the
29 February 1996 Order.
Petitioner Michael O. Mastura and private respondent
Didagen P. Dilangalen were congressional candidates for
the first district of Maguindanao during the 8 May 1995
elections. In the canvassing of votes, Dilangalen objected to
the inclusion of the Certificate of Canvass of the Municipality
of Matanog on the ground that the same was allegedly
tampered. Acting on the objection, the COMELEC Second
Division ordered the production and examination of the
election returns of the Municipality of Matanog. In the course
of the examination four (4) ballot boxes were produced and
opened. Ballot Box No. 1 contained the MTC Judge copy of
the election returns, Ballot Box No. 2 the Provincial Board of
Canvassers copy of the election returns, Ballot Box No. 3
the COMELEC copy of the election returns, and Ballot Box
No. 4 the Provincial Board of Canvassers copy of the
municipal Certificate of Canvass of Matanog with its
supporting Statement of Votes.
Upon examination and comparison of the copies of the
election returns of the MTC Judge and the COMELEC, the
COMELEC Second Division found that, indeed, the
Certificate of Canvass of the Municipality of Matanog had
been tampered with. Consequently, the COMELEC Second
Division issued the herein assailed Order of 29 February
1996 annulling the Certificate of Canvass of Matanog thus
—
After comparing the fifty-seven (57) election
returns, Municipal Trial Court copy (Judge
copy) with the Comelec copy as to the number
of votes obtained by candidates Didagen P.
Dilangalen and Michael O. Mastura, both in
words and figures and the taras . . . the
Second Division, finding that no
inconsistencies exist between the two (2)
copies of the election returns, and finding
further that the Statement of Votes submitted
by the Municipal Board of Canvassers of
 Matanog, Maguindanao is not reflective of the
true votes obtained in the election returns per
verification, hereby annuls the canvass made
by the Municipal Board of Canvassers of
Matanog, Maguindanao.
WHEREFORE, the canvass conducted by the
Municipal Board of Canvassers for the position
of Member, House of Representatives (First
District) is hereby ANNULLED and SET
ASIDE.
A new Municipal Board of Canvassers for the
Municipality of Matanog, Maguindanao is
hereby constituted . . . to conduct a new
recanvassing at the Comelec Session Hall at
Intramuros, Manila, prepare a new Certificate
of Canvass using the Comelec copy of the
election returns and, thereafter, to immediately
submit the new Certificate of Canvass to the
new Provincial Board of Canvassers as herein
constituted . . . .1
The following day, Mastura filed an Urgent Motion to
Examine and Verify the Canvassed MBC Copies of the
Election Returns and the COMELEC Copy of the Certificate
of Canvass and Accompanying Statement of Votes. The
COMELEC Second Division merely noted the motion in view
of the 29 February 1996 Order.2
Thereafter Mastura filed an Urgent Motion to Defer
Implementation of the 29 February 1996 Order. Mastura
argued that the 29 February 1996 Order was issued
precipitately and prematurely considering that some other
documents, particularly the Certificate of Canvass of
Matanog which he considered necessary for the resolution
of the issue, was yet to be produced and examined. The
COMELEC Second Division denied the motion —
. . . (I)t appearing that when the Commission
opened the election returns for Matanog,
Maguindanao, particularly the Judge copy and
the Comelec copy and made comparison
thereof to ascertain the actual votes of
candidates Didagen P. Dilangalen and Michael
O. Mastura per precinct which consists of fifty-
seven (57) precincts, in compliance with the
Supreme Court resolution, the results thereof,
fully convinced the Commission of the
manifest irregularity committed in the
Statement of Votes by precincts. Thus, it
annuls the canvass made by the Municipal
Board of Canvassers of Matanog,
Maguindanao.
Clearly, on the basis of the results of the
primary documents, there is no need for the
examination and opening of other documents
mentioned in the motion of private respondent.
Besides, the opening of other documents will
entail more delay in the proclamations of the
rightful winner for the position of Member,
House of Representatives, First District of
Maguindanao.3
Meanwhile, the new Municipal Board of Canvassers
convened and recanvassed the votes. During the
proceedings Mastura objected to the inclusion of fifty (50)
out of the fifty-seven (57) elections returns on the ground
that the COMELEC copy of the election returns was not
reflective of the true results unless compared with the copy
of the original Municipal Board of Canvassers. But the new
Municipal Board of Canvassers believed otherwise; hence, it
included in the canvass the fifty (50) election returns
objected to by Mastura who thereafter walked out while the
new Municipal Board of Canvassers continued with the
canvassing.
After the proceedings in the Municipal Board of Canvassers,
the Provincial Board of Canvassers convened and prepared
the Certificate of Canvass and Statement of Votes of the
Municipality of Matanog. As a result, private respondent
Dilangalen was proclaimed the duly elected member of the
House of Representatives, First District of Maguindanao.
Mastura now comes to us imputing to public respondent
COMELEC Second Division grave abuse of discretion
amounting to lack of jurisdiction in issuing its Orders of 29
February 1996, 5 March 1996, 14 March 1996, and 20
March 1996.
We find no grave abuse of discretion on the part of
respondent COMELEC. It is settled jurisprudence that
COMELEC can suspend the canvass of votes pending its
inquiry whether there exists a discrepancy between the
various copies of election returns from the disputed voting
centers. Corollarily, once the election returns were found to
be falsified or tampered with, the COMELEC can annul the
illegal canvass and order the Board of Canvassers to
reconvene and proclaim the winners on the basis of the
genuine returns or, if it should refuse, replace the members
of the board or proclaim the winners itself.4
This was exactly what happened in the in the instant
petition. Dilangalen objected to the inclusion of the
Certificate of Canvass of the Municipality of Matanog and,
acting on the objection, COMELEC ordered the production
and examination of the MTC Judge copy and the COMELEC
copy of the election returns. Based on the comparison, the
COMELEC Second Division found and concluded that
indeed the Certificate of Canvass of the Municipality of
Matanog was tampered with. Consequently, it ordered its
annulment and created a new set of Municipal and
Provincial Boards of Canvassers to recanvass the votes.
After the recanvassing, Dilangalen emerged as the winner
and was thereafter proclaimed the duly elected member of
the House of Representatives, First District of Maguindanao.
That the Certificate of Canvass of the Municipality of
Matanog was tampered with is a factual finding of the
COMELEC. Absent any showing of abuse of discretion
amounting to lack of jurisdiction, this Court should refrain
from reviewing the same, and must accord it instead the
respect it deserves. The rule that factual findings of
administrative bodies will not be disturbed by courts of
justice except when there is absolutely no evidence or no
substantial evidence in support of such findings should be
applied with greater force when it concerns the COMELEC,
as the framers of the Constitution intended to place the
COMELEC — created and explicitly made independent by
the Constitution itself — on a level higher than statutory
administrative organs. The COMELEC has broad powers to
ascertain the true results of the election by means available
to it. For the attainment of that end, it is not strictly bound by
the rules of evidence. 5
Pursuant to its administrative functions, the COMELEC
exercises direct supervision and control over the
proceedings before the Board of Canvassers. In Aratuc
v. Commission on Elections 6 we held —
While nominally, the procedure of bringing to
the Commission objections to the actuations of
boards of canvassers has been quite loosely
referred to in certain quarters, even by the
Commission and by this Court . . . as an
appeal, the fact of the matter is that the
authority of the Commission in reviewing such
actuations does not spring from any appellant
jurisdiction conferred by any specific provision
of law, for there is none such provision
anywhere in the Election Code, but from the
plenary prerogative of direct control and
 supervision endowed to it by the above-quoted
provisions of Section 168. And in
administrative law, it is a too well settled
postulate to need any supporting citation here,
that a superior body or office having
supervision and control over another may do
directly what the latter is supposed to do or
ought to have done . . . .
Also in Lucman v. Dimaporo7 we ruled —
The function of a canvassing board in the
canvass of the returns is purely ministerial in
nature. Equally ministerial, therefore, is the
function of the Commission on Elections, in the
exercise of its supervisory power over said
Board, pursuant to our Constitution and laws.
So long as the election returns have been
accomplished in due form, the Board, and on
appeal therefrom, the Commission on
Elections must include said returns in the
canvass.
In Abes v. Commission on Elections8 we emphasized
— any finding of grave abuse of discretion, judicial interference
. . . (T)he board of canvassers is a ministerial
body. It is enjoined by law to canvass all votes
on election returns submitted to it in due form.
It has been said, and properly, that its powers
are limited generally to the mechanical or
mathematical function of ascertaining and
declaring the apparent result of the election by
adding or compiling the votes cast for each
candidate as shown on the face of the returns
before them, and then declaring or certifying
the result so ascertained. Comelec is the
constitutional body charged with the duty to
enforce all laws relative to elections, duty
bound to see to it that the board of canvassers
perform its proper function.
Pertinent rulings of this Court have since
defined Comele's powers in pursuance of its
supervisory or administrative authority over
officials charged with specific duties under the
election code. It is within the legitimate
concerns of Comelec to annul a canvass or
proclamation based on incomplete returns, or
on incorrect or tampered returns; annul a
canvass or proclamation made in an
unauthorized meeting of the board of
canvassers either because it lacked a quorum
or because the board did not meet at all.
Neither Constitution nor statute has granted
Comelec or board of canvassers the power, in
the canvass of election returns, to look beyond
the face thereof, once satisfied of their
authenticity.
The assailed Orders having been issued pursuant to
COMELEC's administrative powers and in the absence of
is therefore unnecessary and uncalled for. Consequently,
the questioned Orders must perforce be upheld.
Additionally, Secs. 27, 28 and 29 of R.A. No. 7166 9 provide
—
Sec. 27. Number of Copies of Election Returns
and Their Distribution. — The board of election
inspectors shall prepare in handwriting the
election returns in their respective polling
places, in the number of copies herein
provided and in the form to be prescribed and
provided by the Commission.
The copies of the election returns shall be
distributed as follows: (a) In the election of . . .
members of the House of Representatives: 1)
The first copy shall be delivered to the city or
municipal board of canvassers; 2) The second
copy, to the Congress, directed to the
President of the Senate; 3) The third copy, to
the Commission; 4) The fourth copy, to the
provincial board of canvassers; 5) The fifth
copy, to . . . the city or municipal treasurer; 6)
The sixth copy shall be given to the city or
municipal trial court judge or in his absence to
any official who may be designated by the
Commission. The city or municipal trial court
judge or the official designated by the
Commission shall keep his copies of the
election returns sealed and unopened. Said
copy may be opened only during the canvass
upon order of the board of canvassers for
purposes of comparison with other copies of
the returns whose authenticity is in question;
and, 7) The seventh copy shall be deposited
inside the compartment of the ballot box for
valid ballots . . . .
Sec. 28. Canvassing by Provincial, City,
District and Municipal Boards of Canvassers.
— (a) The city or municipal board of
canvassers shall canvass the election returns
for . . . members of the House of
Representatives and/or elective provincial and
city or municipal officials. Upon completion of
the canvass, it shall prepare the certificate of
canvass for . . . Members of the House of
Representatives . . . .
Sec. 29. Number of Copies of Certificate of
Canvass and their Distribution. — (a) The
certificate of canvass for . . . Members of the
House of Representatives . . . shall be
prepared in seven (7) copies by the city or
municipal board of canvassers and distributed
as follows: 1) The first copy shall be delivered
to the provincial board of canvassers . . . ; 2)
The second copy shall be sent to the
Commission; 3) The third copy shall be kept by
the chairman of the board; 4) The fourth copy
shall be given to the citizens arm designated
by the Commission to conduct a media-based
unofficial count; and, 5) The fifth, sixth and
seventh copies shall be given to the
representatives of any three (3) of the six (6)
major political parties in accordance with the
voluntary agreement of the parties . . . .
In the instant petition, petitioner Mastura argues that the
COMELEC Second Division should have made use of the
Municipal Board of Canvassers copy of the election returns
for the simple reason that it is the original copy. This is a
misconception. All the seven (7) copies of the election
returns are all original copies, although the copy for the
Municipal Board of Canvassers is designated as
the first copy. This designation is only for the purpose of
distribution and does not in any way accord said copy the
status of being the onlyoriginal copy. Consequently, it was
properly within the exercise of its discretion when
COMELEC ordered the production and examination of the
MTC Judge copy and the COMELEC copy of the election
returns. COMELEC is not required to retrieve and examine
all the seven (7) copies of the election returns.
Additionally, Sec. 15 of R.A. No. 7166 does not in any way
specify that the COMELEC should use the Municipal Board
of Canvassers copy in correcting manifest error. COMELEC
is in fact given enough leeway in this regard —
 Sec. 15. Pre-Proclamation Cases Not Allowed Mendoza, J., took no part.
in Elections for President, Vice-President,
Senator and Member of the House of
Representatives. — For purposes of the
elections for President, Vice-President,
Senator and Member of the House of
Representatives, no pre-proclamation cases
shall be allowed on matters relating to the
preparation, transmission, receipt, custody and
appreciation of the election returns or the
certificate of canvass, as the case may be.
However, this does not preclude the authority
of the appropriate canvassing body motu
proprioor upon written complaint of an
interested person to correct manifest errors in
the certificate of canvass or election returns
before it . . . .

There is another reason for denying the instant petition.

When petitioner's motion for reconsideration of the 29
February 1996 Order was denied for being interlocutory in
nature, petitioner should have sought prior recourse from
the COMELEC en banc before coming to this Court,
pursuant to Sec. 3, Art. IX-C, of the Constitution.

WHEREFORE, finding no grave abuse of discretion

committed by public respondent COMMISSION ON
ELECTIONS Second Divisions, the instant petition is
DISMISSED. The assailed Orders of 29 February 1996, 5
March 1996, 14 March 1996 and 20 March 1996 of the
COMELEC Second Division are AFFIRMED.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Melo, Puno,

Vitug, Kapunan, Francisco and Martinez, JJ., concur.

Panganiban, J., concurs in the result.

 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:
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 Parañaque 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
"3. xxx the local elections for the office of Vice-Mayor
in the City of Parañaque, 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 Parañaque,
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
Parañaque, appear to be altered, falsified or
fabricated.
4. The will of the legitimate voters of the City of
Parañaque 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 Parañaque 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 Parañaque, 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 Parañaque, 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 Parañaque.
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 Parañaque has been denigrated. The elections for
the office of the Vice-Mayor in the City of Parañaque,
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 Vice-Mayor
in the City of Parañaque.
xxx
10. Finally, what seriously casts doubt on the
legitimacy of the elections for the office of the Vice-
Mayor in the City of Parañaque 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 Parañaque. 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
Parañaque, Metro Manila;
 1.2. Annulling the proclamation of the
respondent as the elected Vice-Mayor of the
City of Parañaque, Metro Manila, during the 11
May 1998 elections; and
1.3. Declaring that special elections should be
held for the office of Vice-Mayor in the City of
Parañaque, 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 Parañaque 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 Vice-Mayor 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 Parañaque, Metro Manila be
annulled;
3.2. The petitioner, TOMAS T. BANAGA, JR.,
be adjudged as the duly elected Vice-Mayor in
the City of Parañaque, 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 petitioner’s
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
COMELEC’s 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 petition motu
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 petitioner’s petition, in the light of petitioner’s
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, petitioner’s 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 petitioner’s
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 Parañaque 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 petitioner’s action as a
petition to declare failure of elections or to annul election
results.
The COMELEC’s 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 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. 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 vice-
mayor of Parañaque 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
petitioner’s 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 petitioner’s 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.1âwphi1 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 Santiago, and De Leon, Jr., JJ., concur.
treated his prayer for annulment of elections as a prayer for Bellosillo, J., on official leave.
declaration of failure of elections.16 This argument is plainly Pardo, J., no part.
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 petitioner’s 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.

Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza,

Panganiban, Purisima, Buena, Gonzaga-Reyes, Ynares-

EN BANC
G.R. No. 163756 January 26, 2005
GEORGIDI B. AGGABAO, petitioner,
vs.
THE COMMISSION ON ELECTIONS, the PROVINCIAL
BOARD of CANVASSERS of ISABELA, and ANTHONY
MIRANDA, respondents.
DECISION
YNARES-SANTIAGO, J.:
This Petition for Certiorari1 seeks to annul and set aside as
having been issued with grave abuse of discretion
Resolution No. 7233 of the COMELEC En Banc and the
proclamation of private respondent Anthony Miranda as
Congressman for the 4th District of Isabela.2
Petitioner Georgidi B. Aggabao and private respondent
Anthony Miranda were rival congressional candidates for the
4th District of Isabela during the May 10, 2004 elections.
During the canvassing of the certificates of canvass of votes
(COCV) for the municipalities of Cordon and San Agustin,
Miranda moved for the exclusion of the 1st copy of the
COCV on grounds that it was tampered with; prepared
under duress; differed from other authentic copies and
contained manifest errors.3
Aggabao objected arguing that the grounds raised by
Miranda are proper only for a pre-proclamation controversy
which is not allowed in elections for Members of the House
of Representatives.4
On May 22, 2004, the reconstituted Provincial Board of
Canvassers (PBC) excluded from canvass the contested
COCVs and used instead the 4th and 7th copies of the
COCVs.5 Based on the results, Miranda garnered the
highest number of votes for the position of Congressman.
On appeal with the COMELEC,6 petitioner asserted that the
PBC acted without jurisdiction7 when it heard Miranda’s
Petition for Exclusion. Even assuming that the PBC had
jurisdiction over the petition, it still erred in excluding the
contested COCVs as they appeared regular and properly
authenticated.8
On June 6, 2004, private respondent filed a Very Urgent
Motion for Proclamation9 which was opposed10 by petitioner
who contended that the pendency of his appeal with the
COMELEC Second Division is a bar to Miranda’s
proclamation.
In a Memorandum dated June 8, 2004, Commissioner
Mehol K. Sadain, commissioner in-charge for Regions II and
III, approved the proclamation of the remaining winning
candidates for the province of Isabela.11
On June 9, 2004, the COMELEC En Banc issued Resolution
No. 7233 likewise directing the proclamation of the
remaining winning candidates in Isabela.12 On the same
day, petitioner filed with the COMELEC an Urgent Motion
to Set Aside the Notice of Proclamation with Prayer for the
Issuance of a Temporary Restraining Order.13
On June 14, 2004, Miranda was proclaimed as the duly
elected Congressman for the 4th District of Isabela.14
Two days after the proclamation, Aggabao filed this petition
assailing Resolution No. 7233. He claimed that the
COMELEC En Banc acted without jurisdiction when it
ordered Miranda’s proclamation considering that the Second
Division has not yet resolved the appeal.
In his Comment,15 Miranda moved for the dismissal of the
petition considering that the issue raised by Aggabao is best
addressed to the House of Representatives Electoral
Tribunal (HRET).16
On August 27, 2004, the petitioner filed a Consolidated
Motion for Early Resolution; Manifestation that the
COMELEC Second Division Issued a Resolution Sustaining
the Appeal of the Petitioner; and Reply to the
Comment.17 He manifested that on August 16, 2004, the
COMELEC Second Division gave due course to his pending
appeal.18 At the same time, he bewailed the failure of the
COMELEC Second Division to annul the proclamation.19
The basic issue for resolution is whether we can take
cognizance of this petition.
Certiorari as a special civil action can be availed of only if
there is concurrence of the essential requisites, to wit: (a)
the tribunal, board or officer exercising judicial functions has
acted without or in excess of jurisdiction or with grave abuse
of discretion amounting to lack of jurisdiction, and (b) there
is no appeal, nor any plain, speedy and adequate remedy in
the ordinary course of law for the purpose of annulling or
modifying the proceeding. There must be capricious,
arbitrary and whimsical exercise of power for it to prosper.20
Article VI, Section 17 of the 1987 Constitution provides:
Sec. 17. The Senate and the House of Representatives
shall each have an Electoral Tribunal which shall be the sole
judge of all contests relating to the election, returns, and
qualifications of their respective Members. Each Electoral
Tribunal shall be composed of nine Members, three of
whom shall be Justices of the Supreme Court to be
designated by the Chief Justice, and the remaining six shall
be Members of the Senate or the House of Representatives,
as the case may be, who shall be chosen on the basis of
proportional representation from the political parties and the
parties or organization registered under the party-list system
represented therein. The senior Justice in the Electoral
Tribunal shall be its Chairman.
In Pangilinan v. Commission on Elections21 we ruled that:
The Senate and the House of Representatives now have
their respective Electoral Tribunals which are the "sole judge
of all contests relating to the election, returns, and
qualifications of their respective Members, thereby divesting
the Commission on Elections of its jurisdiction under the
1973 Constitution over election cases pertaining to the
election of the Members of the Batasang Pambansa
(Congress). It follows that the COMELEC is now bereft of
jurisdiction to hear and decide pre-proclamation
controversies against members of the House of
Representatives as well as of the Senate.
The HRET has sole and exclusive jurisdiction over all
contests relative to the election, returns, and qualifications of
members of the House of Representatives. Thus, once a
winning candidate has been proclaimed, taken his oath, and
assumed office as a Member of the House of
Representatives, COMELEC’s jurisdiction over election
contests relating to his election, returns, and qualifications
ends, and the HRET’s own jurisdiction begins.22
It is undisputed that Miranda has already been proclaimed,
taken his oath and assumed office on June 14, 2004. As
such, petitioner’s recourse would have been to file an
electoral protest before the HRET. His remedy is not this
petition for certiorari. Thus:
Finally, the private respondent Feliciano Belmonte, Jr. has
already been proclaimed as the winner in the congressional
elections in the fourth district of Quezon City. He has taken
his oath of office and assumed his duties as representative;
hence, the remedy open to the petitioner was to have filed
an electoral protest with the Electoral Tribunal of the House
of Representatives.23
The allegation that Miranda’s proclamation is null and void
ab initio does not divest the HRET of its jurisdiction. Thus:
(I)n an electoral contest where the validity of the
proclamation of a winning candidate who has taken his oath
of office and assumed his post as Congressman is raised,
that issue is best addressed to the HRET. The reason for
this ruling is self-evident, for it avoids duplicity of
proceedings and a clash of jurisdiction between
constitutional bodies, with due regard to the people’s
mandate.24
In Lazatin v. Commission on Elections25 we ruled that, upon
proclamation of the winning candidate and despite its
alleged invalidity, the COMELEC is divested of its
jurisdiction to hear the protest. Thus:
The petition is impressed with merit because the petitioner
has been proclaimed winner of the Congressional elections
in the first district of Pampanga, has taken his oath of office
as such, and assumed his duties as Congressman. For this
Court to take cognizance of the electoral protest against him
would be to usurp the functions of the House Electoral
Tribunal.l^vvphi1.net The alleged invalidity of the
proclamation (which has been previously ordered by the
COMELEC itself) despite alleged irregularities in connection
therewith, and despite the pendency of the protests of the
rival candidates, is a matter that is also addressed,
considering the premises, to the sound judgment of the
Electoral Tribunal.
In this case, certiorari will not lie considering that there is an
available and adequate remedy in the ordinary course of law
for the purpose of annulling or modifying the proceedings
before the COMELEC. After the proclamation, petitioner’s
remedy was an electoral protest before the HRET. The
resolution of the issues presented in this petition is best
addressed to the sound judgment and discretion of the
electoral tribunal.
WHEREFORE, in view of the foregoing, the instant Petition
for Certiorari is DISMISSED for lack of merit. No
pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
Carpio-Morales, Azcuna, Tinga, Chico-Nazario, and Garcia,
JJ., concur.
Callejo, Sr., J., on official leave.

Presidential Electoral Tribunal
P.E.T. CASE No. 002 March 29, 2005
RONALD ALLAN POE a.k.a. FERNANDO POE,
JR., Protestant,
vs.
GLORIA MACAPAGAL-ARROYO, Protestee.
RESOLUTION
QUISUMBING, J.:
The moving finger writes, says Omar Khayyam in the
Rubayyat, and having writ, moves on. Nor all your piety nor
wit, adds the poet, could lure it back to cancel half a line; nor
all your tears wash out a word of it.
Such is my view on the providential case for our
consideration.
Before this Electoral Tribunal, composed pursuant to the
Constitution, by all the fifteen members of the Supreme
Court, is a matter of first impression. We are tasked not only
to determine, as originally prayed for, who between the
Protestant and the Protestee was the true winner in the May
10, 2004 Presidential Elections, but also to decide now
whether the Protestant’s widow (Mrs. Jesusa Sonora Poe,
popularly known as the cinema star Susan Roces) could
intervene and/or substitute for the deceased party,
assuming arguendo that the protest could survive his death.
If one were guided by folk wisdom expressed in the adage
that in a democracy, the voice of the people is the voice of
God, then it would appear our task had been made easy by
fateful events. Past midnight, in the early hours of June 24,
2004, the Congress as the representatives of the sovereign
people and acting as the National Board of Canvassers, in a
near-unanimous roll-call vote, proclaimed Mrs. Gloria
Macapagal Arroyo (GMA) the duly elected President of the
Philippines. She obtained 12,905,808 votes, as against
11,782,232 votes for the second-placer, the movie actor
Fernando Poe, Jr. (FPJ).1 She took her Oath of Office
before the Chief Justice of the Supreme Court on June 30,
2004.
Refusing to concede defeat, the second-placer in the
elections, Mr. FPJ, filed seasonably an election protest
before this Electoral Tribunal on July 23, 2004. Mrs. GMA,
through counsel, filed her Answer with Counter Protest on
August 5, 2004. As counsels for the parties exchanged lively
motions to rush the presentation of their respective positions
on the controversy, an act of God intervened. On December
14, 2004, the Protestant died in the course of his medical
treatment at St. Luke’s Hospital. The medical certificate,
filed by counsel as part of the Notice of Death of the
Protestant, showed that he died of cardio-pulmonary arrest,
secondary to cerebral infarction.
However, neither the Protestee’s proclamation by Congress
nor the death of her main rival as a fortuitous intervening
event, appears to abate the present controversy in the
public arena. Instead, notice may be taken of periodic mass
actions, demonstrations, and rallies raising an outcry for this
Tribunal to decide the electoral protest of Mr. FPJ against
Mrs. GMA once and for all. The oracular function of this
Tribunal, it would appear, needs to be fully exercised to
make manifest here and abroad who is the duly elected
leader of the Filipino nation. All these, despite the fact that
the submissions by the parties on their respective sides in
the protest and the counter-protest are thus far, far from
completed.
Needless to stress, this Tribunal cannot shirk its
constitutional duty. Yet, neither could it go beyond its
mandate under the Constitution and the law. Further, this
Tribunal is guided by its Rules, as well as the Rules of Court
in a suppletory manner. Considering the transcendental
importance of the electoral contest involving the Presidency,
a rush to judgment is simply out of the question. Yet decide
the matter we must, without further delay, to prevent popular
unrest and avoid further destabilization of government at the
highest level.
Together with the formal Notice of the Death of Protestant,
his counsel has submitted to the Tribunal, dated January 10,
2005, a "MANIFESTATION with URGENT
PETITION/MOTION to INTERVENE AS A SUBSTITUTE
FOR DECEASED PROTESTANT FPJ," by the widow, Mrs.
Jesusa Sonora Poe, who signed the verification and
certification therein.
As movant/intervenor, Mrs. FPJ claims that because of the
untimely demise of her husband and in representation not
only of her deceased husband but more so because of the
paramount interest of the Filipino people, there is an urgent
need for her to continue and substitute for her late husband
in the election protest initiated by him to ascertain the true
and genuine will of the electorate in the 2004 elections. In
support of her assertion, she cites De Castro v. Commission
on Elections,2 and Lomugdang v. Javier,3 to the effect that
the death of the protestant does not constitute a ground for
the dismissal of the contest nor oust the trial court of the
jurisdiction to decide the election contest. She stresses
nevertheless that even if the instant protest case succeeds,
she is cognizant that as a mere substitute she cannot
succeed, assume or be entitled to said elective office, and
her utmost concern is not personal but one that involves the
public’s interest. She prays, however, that if subsequently
determined that the protestee Gloria Macapagal-Arroyo did
not get the highest number of votes for president, for
protestee to be disallowed from remaining in office, and thus
prevented from exercising the powers, duties,
responsibilities and prerogatives reserved only to the duly-
elected president or her legitimate successor.
In her Comment, the Protestee, Mrs. GMA, relying on Vda.
de De Mesa v. Mencias4 and subsequent cases including
analogous cases decided by the House of Representatives
Electoral Tribunal (HRET), asserts that the widow of a
deceased candidate is not the proper party to replace the
deceased protestant since a public office is personal and not
a property that passes on to the heirs. She points out that
the widow has no legal right to substitute for her husband in
an election protest, since no such right survives the
husband, considering that the right to file an election protest
is personal and non-transmissible.
Protestee also contends Mrs. FPJ cannot substitute for her
deceased husband because under the Rules of the
Presidential Electoral Tribunal, only the registered
candidates who obtained the 2nd and 3rd highest votes for
the presidency may contest the election of the president and
patently, Mrs. FPJ did not receive the 2nd and 3rd highest
votes for she was not even a candidate for the presidency in
the election that is being contested.
Citing pertinent PET Rules, protestee also stresses that this
Tribunal has no jurisdiction over actions of surviving
spouses to ascertain the vote of the electorate as the
Tribunal has jurisdiction only over election protests and quo
warranto cases.
According to protestee, movant/intervenor Mrs. FPJ cannot
use "the public interest" to justify her request to be
substituted for her husband. "Public interest", i.e. the need
to dispel uncertainty over the real choice of the electorate, is
applicable only in election contests, not in an action to
merely "ascertain the true and genuine will of the people."
She asserts that the only case herein cognizable by this
Tribunal is an election protest involving a protestant and a
protestee, not between the electorate and the protestee.
Citing analogous HRET cases, protestee avers that in a
case where the protestant, the primary adversary in an
election protest case dies, the public interest in said protest
dies with him.
Protestee also contends that in the adversarial nature of a
protest case where one of the parties dies, a correct ruling
cannot be had because the dead protestant could no longer
refute his adversary’s allegations because death has
rendered him hors de combat.
Further citing Defensor-Santiago v. Ramos,5 protestee
points out that this Tribunal, nonetheless, confirmed its
power to dismiss an electoral case on technical grounds.
She adds that if the Tribunal can do so on a technicality, all
the more it could for a stronger reason, that of protestant’s
death.
In her Reply, movant/intervenor argues that reference of
protestee to the HRET case of Abadilla v. Ablan,6 was
erroneous inasmuch as said case was a congressional
protest and the controlling case is De Castro. She likewise
contends that protestant failed to distinguish between a right
to an office which protestant concedes is personal and non-
transmissible vis-à-vis the right to pursue the process which
is not personal but imbued with public interest. She likewise
stresses that the death of the protestant abolished the
personal/private character of the protest, as protestant’s
right to assume if he prevails, necessarily disappears, and
the same cannot be transferred to anyone else, protestant’s
widow included. She insists, however, that the public
interest remains. Further, movant/intervenor posits that the
protest having been commenced cannot be abated by the
death of the protestant and the only real issue is the
determination of the proper substitute. She avers that the
Tribunal’s rule is clear on who can commence and initiate a
protest compared to the persons who can initiate a quo
warranto. She admits that in the former, only the second and
third placers in the presidential election are authorized to
commence the contest, while in the latter, any voter may
initiate the petition. She contends that with no personal
interest involved, any registered voter can continue the duly-
commenced protest as the real-party-in-interest which is
analogous to a quo warranto. She contradicts protestee and
insists that allowing "any voter" to substitute just like in
a quo warranto will not open the floodgate to whimsical
protests, and the imagined political instability feared by
protestee will even more be pronounced if the protest is
dismissed. Movant/intervenor reiterates that the issue at
hand involves just the continuation of proceedings by
allowing substitution and the taking over by the substitute of
the prosecution of the protest already "duly commenced."
Plainly, the issue here is: May the widow
substitute/intervene for the protestant who died during the
pendency of the latter’s protest case?
The fundamental rule applicable in a presidential election
protest is Rule 14 of the PET Rules. It provides,
Rule 14. Election Protest.–Only the registered
candidate for President or for Vice-President of the
Philippines who received the second or third highest
number of votes may contest the election of the
President or the Vice-President, as the case may be,
by filing a verified petition with the Clerk of the
 Presidential Electoral Tribunal within thirty (30) days
after the proclamation of the winner.
Pursuant to this rule, only two persons, the 2nd and
3rd placers, may contest the election. By this express
enumeration, the rule makers have in effect determined the
real parties in interest concerning an on-going election
contest. It envisioned a scenario where, if the declared
winner had not been truly voted upon by the electorate, the
candidate who received that 2nd or the 3rd highest number of
votes would be the legitimate beneficiary in a successful
election contest.
This Tribunal, however, does not have any rule on
substitution nor intervention but it does allow for the
analogous and suppletory application of the Rules of Court,
decisions of the Supreme Court, and the decisions of the
electoral tribunals.7
Rule 3, Section 16 is the rule on substitution in the Rules of
Court.8 This rule allows substitution by a legal
representative. It can be gleaned from the citation of this
rule that movant/intervenor seeks to appear before this
Tribunal as the legal representative/substitute of the late
protestant prescribed by said Section 16. However, in our
application of this rule to an election contest, we have every
time ruled that a public office is personal to the public officer
and not a property transmissible to the heirs upon
death.9 Thus, we consistently rejected substitution by the
widow or the heirs in election contests where the protestant
dies during the pendency of the protest. In Vda. de De Mesa
v. Mencias,10 we recognized substitution upon the death of
the protestee but denied substitution by the widow or heirs
since they are not the real parties in interest. Similarly, in the
later case of De la Victoria v. Commission on Elections,11 we
struck down the claim of the surviving spouse and children
of the protestee to the contested office for the same reason.
Even in analogous cases before other electoral
tribunals,12 involving substitution by the widow of a
deceased protestant, in cases where the widow is not a real
party in interest, we denied substitution by the wife or heirs.
This is not to say that death of the protestant necessarily
abates the pending action. We have held as early as Vda.
de De Mesa (1966) that while the right to a public office is
personal and exclusive to the public officer, an election
protest is not purely personal and exclusive to the protestant
or to the protestee such that the death of either would oust
the court of all authority to continue the protest
proceedings.13 Hence, we have allowed substitution and
intervention but only by a real party in interest. A real party
in interest is the party who would be benefited or injured by
the judgment, and the party who is entitled to the avails of
the suit.14 In Vda. de De Mesa v. Mencias15 and Lomugdang
v. Javier,16 we permitted substitution by the vice-mayor
since the vice-mayor is a real party in interest considering
that if the protest succeeds and the protestee is unseated,
the vice-mayor succeeds to the office of the mayor that
becomes vacant if the one duly elected cannot assume
office. In contrast, herein movant/intervenor, Mrs. FPJ,
herself denies any claim to the august office of President.
Thus, given the circumstances of this case, we can
conclude that protestant’s widow is not a real party in
interest to this election protest.
We are not unaware that a contest before election tribunals
has two aspects. First, it is in pursuit of one’s right to a
public office, and second, it is imbued with public interest.
Indeed the personal aspect of the case is inextricably linked
with the public interest. For an election protest involves not
merely conflicting private aspirations but is imbued with
public interest which raises it into a plane over and above
ordinary civil actions.17 But herein movant/intervenor, Mrs.
FPJ, has overly stressed that it is with the "paramount public
interest" in mind that she desires "to pursue the process"
commenced by her late husband. She avers that she is Acting on the protest and considering the Notice of the
"pursuing the process" to determine who truly won the Death, submitted by counsel of protestant RONALD ALLAN
election, as a service to the Filipino people. We laud her POE, a.k.a. FERNANDO POE, JR., we also resolve that
noble intention and her interest to find out the true will of the Presidential Electoral Tribunal Case No. 002,
electorate. However, nobility of intention is not the point of entitled Ronald Allan Poe a.k.a. Fernando Poe, Jr. v. Gloria
reference in determining whether a person may intervene in Macapagal-Arroyo, should be as it is hereby DISMISSED on
an election protest. Rule 19, Section 1 of the Rules of the ground that no real party in interest has come forward
Court18 is the applicable rule on intervention in the absence within the period allowed by law, to intervene in this case or
of such a rule in the PET Rules. In such intervention, the be substituted for the deceased protestant.
interest which allows a person to intervene in a suit must be
in the matter of litigation and of such direct and immediate No pronouncement as to costs.
character that the intervenor will either gain or lose by the
effect of the judgment. In this protest, Mrs. FPJ will not SO ORDERED.
immediately and directly benefit from the outcome should it
be determined that the declared president did not truly get Davide, Jr., C.J., Puno, Panganiban, Ynares-Santiago,
the highest number of votes. We fully appreciate counsel’s Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona,
manifestation that movant/intervenor herself claims she has Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario,
no interest in assuming the position as she is aware that she and Garcia, JJ., concur.
cannot succeed to the presidency, having no legal right to it.
Yet thus far, in this case, no real parties such as the vice-
presidential aspirants in the 2004 elections, have come
forward to intervene, or to be substituted for the deceased
protestant. In our view, if persons not real parties in the
action could be allowed to intervene, proceedings will be
unnecessarily complicated, expensive and interminable –
and this is not the policy of the law.19 It is far more prudent
to abide by the existing strict limitations on intervention and
substitution under the law and the rules.

Conformably then with the law, the rules and prevailing

jurisprudence, this Tribunal finds no justifiable reason to
grant the petition/motion for intervention and substitution.

WHEREFORE, the motion of movant/intervenor JESUSA

SONORA POE a.k.a. SUSAN ROCES to intervene and
substitute for the deceased protestant is DENIED for lack of
merit.
 Republic of the Philippines
SUPREME COURT
Manila
PRESIDENTIAL ELECTORAL TRIBUNAL
P.E.T. Case No. 003 January 18, 2008
LOREN B. LEGARDA, protestant,
vs.
NOLI L. DE CASTRO, protestee.
RESOLUTION
QUISUMBING, J.:
On June 23, 2004, Congress sitting as the National Board of
Canvassers (NBC) proclaimed1 protestee Noli L. de Castro
the duly elected Vice-President of the Republic of the
Philippines. The official count of the votes cast for Vice-
President in the May 10, 2004 elections showed that the
protestee obtained the highest number of votes, garnering
15,100,431 votes as against the 14,218,709 votes garnered
by the protestant Loren B. Legarda, who placed second, in a
field consisting of four candidates for Vice-President.
On July 23, 2004, the protestant filed this protest with this
Tribunal praying for the annulment of the protestee's
proclamation as the duly elected Vice-President of the
Republic of the Philippines.2
The protest has two main parts. The First Aspect originally
covered "all the erroneous, if not manipulated, and falsified
results as reflected in the final canvass documents" for
9,007 precincts in six provinces, one city and five
municipalities.3 Protestant avers that the correct results
appearing in the election returns were not properly
transferred and reflected in the subsequent election
documents and ultimately, in the final canvass of documents
used as basis for protestee's proclamation. Protestant seeks
the recomputation, recanvass and retabulation of the
election returns to determine the true result.
The Second Aspect required revision of ballots in 124,404
precincts specified in the protest.4
The Tribunal confirmed its jurisdiction over the protest and
denied the motion of protestee for its outright dismissal.
Protestee filed a motion for reconsideration arguing in the
main that the Tribunal erred in ruling that the protest alleged
a cause of action sufficient to contest protestee's victory in
the May 2004 elections.5
On March 31, 2005, the Tribunal ruled that:
On the matter of sufficiency of the protest, protestee
failed to adduce new substantial arguments to
reverse our ruling. We hold that while Peña v. House
of Representatives Electoral Tribunal on requisites of
sufficiency of election protest is still good law, it is
inapplicable in this case. We dismissed the petition
in Peña because it failed to specify the contested
precincts. In the instant protest, protestant
enumerated all the provinces, municipalities and
cities where she questions all the results in all the
precincts therein. The protest here is sufficient in
form and substantively, serious enough on its face to
pose a challenge to protestee's title to his office. In
our view, the instant protest consists of alleged
ultimate facts, not mere conclusions of law, that need
to be proven in due time.
Considering that we find the protest sufficient in form
and substance, we must again stress that nothing as
yet has been proved as to the veracity of the
allegations. The protest is only sufficient for the
Tribunal to proceed and give the protestant the
opportunity to prove her case pursuant to Rule 61 of
the PET Rules. Although said rule only pertains to
revision of ballots, nothing herein prevents the
Tribunal from allowing or including the correction of
manifest errors, pursuant to the Tribunal's rule-
making power under Section 4, Article VII of the
Constitution.
On a related matter, the protestant in her reiterating
motion prays for ocular inspection and inventory-
taking of ballot boxes, and appointment of watchers.
However, the Tribunal has already ordered the
protection and safeguarding of the subject ballot
boxes; and it has issued also the appropriate
directives to officials concerned. At this point, we find
no showing of an imperative need for the relief
prayed for, since protective and safeguard measures
are already being undertaken by the custodians of
the subject ballot boxes.
WHEREFORE, protestee's motion for reconsideration
is hereby DENIED WITH FINALITY for lack of merit.
Protestant's reiterating motion for ocular inspection
and inventory-taking with very urgent prayer for the
appointment of watchers is also DENIED for lack of
showing as to its actual necessity.
Further, the protestant LOREN B. LEGARDA
is ORDERED to specify, within ten (10) days from
notice, the three (3) provinces best exemplifying the
manifest errors alleged in the first part of her protest,
and three (3) provinces best exemplifying the frauds
and irregularities alleged in the second part of her
protest, for the purpose herein elucidated.
Lastly, the Tribunal hereby ORDERS the Commission
on Elections to SUBMIT, within 30 days hereof, the
official project of precincts of the May 2004 Elections.
SO ORDERED.6
On April 11, 2005, protestant identified three (3) provinces
as pilot areas best exemplifying her grounds for the First
Aspect of the protest. She chose the provinces of Lanao del
Sur, Lanao del Norte, and Surigao del Sur with the following
number of protested precincts: 1,607, 2,346 and 350,
respectively, or a total of 4,303 out of the original 9,007
precincts.7
On June 21, 2005, the Tribunal ascertained8 the number of
ballot boxes subject of the protest, to wit:
The Tribunal Resolved to NOTE the Letter dated 30
May 2005 filed by Executive Director Pio Jose S.
Joson, COMELEC, in compliance with the Letter
dated 14 April 2005 of Atty. Luzviminda D. Puno,
Acting Clerk of the Tribunal, informing the Tribunal
that one thousand four hundred fifty-four (1,454)
ballot boxes are involved in the precincts of the
province of Surigao del Sur which the protestant has
identified to the Tribunal as best exemplifying the
irregularities in connection with the 10 May 2004
National and Local Elections.
Accordingly, without prejudice to its recomputation,
the number of ballot boxes involved in the precincts
of the provinces which the protestant has identified to
the Tribunal as best exemplifying the irregularities in
connection with the said elections are as follows:
Lanao del Sur - 1,568
Lanao del Norte - 2,317
 Surigao del Sur - 1,454
Cebu City - 10,127
Pampanga - 5,458
Maguindanao - 1,755
Total - 22,679 ballot boxes involved in the precincts
x P500.00
P11,339,500.00
On November 2, 2005 protestant moved to withdraw and
abandon almost all pilot precincts in the First Aspectexcept
those in the province of Lanao del Sur.9 On November 22,
2005, the Tribunal granted the said motion withdrawing and
abandoning the protest involving the manifest errors in the
municipalities of Lanao del Norte and Surigao del Sur.10
Thereafter, proceedings duly ensued concerning both
the First and Second Aspects. Former Associate Justice
Bernardo P. Pardo as Hearing Commissioner11 heard the
presentation of evidence of both parties for the First Aspect.
Subpoenas were issued to the witnesses of the protestant,
e.g.
the President/General Manager of Ernest Printing
Corporation12 and then Commission on Elections Chairman
Benjamin Abalos.13 On August 28, 2006, a preliminary
conference was called by Hearing Commissioner Bernardo
P. Pardo to schedule the presentation of evidence. The
latter then ordered as follows:
Pursuant to the Resolution of the Tribunal dated 22
August 2006, setting the preliminary conference of
the parties with the Hearing Commissioner today, the
designated Hearing Commissioner called the
preliminary conference in order to consider the order
of hearing and presentation of evidence of the parties
according to the procedure prescribed in the
Resolution of the Tribunal of 1 August 2006, under
paragraph B (1 and 2).
The following are the appearances:
1) Protestant Loren B. Legarda, in person;
2) Atty. Sixto S. Brillantes, Jr. and Atty. Jesus
P. Casila, for the protestant;
3) Protestee Noli L. de Castro did not appear;
4) Atty. Armando M. Marcelo and Atty. Carlo
Vistan, for the protestee.
Atty. Brillantes manifested that the protestant is ready
to adduce testimonial and documentary evidence on
a date to be scheduled and agreed upon by the
parties; they have about seven witnesses to testify on
the first aspect as indicated in the Tribunal's
Resolution of 1 August 2006. He suggested 6
September 2006 as the initial date of the hearing.
Atty. Marcelo stated that he was leaving for abroad
on 6 September 2006 for one month and suggested a
hearing after his return in October 2006. At any rate,
protestee has a pending motion for reconsideration of
the Tribunal's Resolution of 22 August 2006
designating a retired Justice of the Supreme Court as
Hearing Commissioner. They wanted an incumbent
Justice of the Supreme Court or an official of the
Tribunal who is a member of the Bar to be the
designated Hearing Commissioner.
The undersigned Hearing Commissioner suggested
that the initial hearing be held on 4 September 2006,
at 10:00 a.m., when protestee's counsel will still be in
 town, without prejudice to the resolution of the
Tribunal on his motion for reconsideration.
The undersigned Hearing Commissioner suggested
to protestant's counsel to submit by this afternoon the
list of the names of the proposed witnesses and
documents to be produced so that the proper process
may be issued to them.
The undersigned Hearing Commissioner set the initial
hearing tentatively on Monday, 4 September 2006, at
10:00 a.m., at the same venue, subject to the
Tribunal's ruling on protestee's motion for
reconsideration of the person of the Hearing
Commissioner, and protestant to submit by this
afternoon the list of witnesses and documents to be
produced at the hearing.
IT IS SO ORDERED.14
Several hearings on the First Aspect were held wherein the
protestant adduced evidence and the protestee interposed
his continuing objection to such in the form of motions and
comments. Months of continuous trial took place until the
Hearing Commissioner made his final report of the
proceedings for detailed consideration by the Tribunal.
On January 31, 2006, while the case was sub judice, the
Tribunal ordered both parties to refrain from sensationalizing
the case in the media. Its extended resolution on the matter
reads as follows:
On December 12, 2005, the re-tabulation of election
returns (ERs) from the ten (10) protested
municipalities of Lanao del Sur commenced.
According to the report submitted by the Acting Clerk
of the Tribunal, Atty. Maria Luisa D. Villarama, the
correction team was able to re-tabulate only the ERs
from four (4) of the ten (10) protested municipalities
of Lanao del Sur, namely, Balindong, Masiu, Mulondo
and Taraka. The ERs of the other six (6) protested
municipalities were not found inside the ballot boxes
collected from the House of Representatives, but
found were the ERs from municipalities not subject of
the protest.
Therefore, acting on the aforementioned report of the
Acting Clerk, the Tribunal resolves to REQUIRE Hon.
Roberto Nazareno, Secretary General of the House
of Representatives and Atty. Artemio Adasa, Jr.,
Deputy Secretary General for Operation, of the
House of Representatives, within a non-extendible
period of five (5) days from notice, to
(a) DELIVER to the Tribunal the election
returns and other election
documents/paraphernalia used in the May
2004 National/Local elections for the
remaining six (6) protested municipalities of
Lanao del Sur, namely (1) Bacolod-Kalawi; (2)
Ganassi; (3) Kapai; (4) Sultan Gumander; (5)
Tamparan; and (6) Wao;
(b) EXPLAIN why the election returns and
other election documents and paraphernalia
which were turned over to the PET Retrieval
Team are incomplete when compared to the
COMELEC's total number of clustered
precincts for Lanao del Sur; and
(c) SUBMIT to the Tribunal the complete list of
all the election returns, Provincial/District
Certificates of Canvass and Statements of
Votes and other election documents and
paraphernalia used in the May 2004 National
 and Local Elections for the province of Lanao
del Sur which were in its official custody.
In the resolution dated December 6, 2005, the
Tribunal granted protestant's motion to suspend the
remittance of additional cash deposit amounting
to P3,882,000 as required in the resolution of
November 22, 2005. Protestant also manifested in
said motion that she will make the required cash
deposit sometime in the year 2006. Thus, the
Tribunal resolves to REQUIRE protestant to comply
with the resolution of November 22, 2005 requiring
her to make additional cash deposit of P3,882,000
within ten (10) days.
On another matter, the Presidential Electoral Tribunal
notes the following news reports:
(1) In an article entitled "Recount shows fraud,
says Legarda" appearing in the December 13,
2005 issue of The Manila Times, protestant
Legarda said that the election returns from
Congress had been tampered after initial
retabulation of votes by the Tribunal showed
that the lead of protestee De Castro over her
has widened. She added that this discovery
confirmed her claim of massive poll fraud in
favor of protestee in the 2004 election.
(2) In an article entitled "Intel feelers offer proof
of poll fraud to Loren" published in the
December 13, 2005 issue of The Daily
Tribune, sources from protestant's legal team
said that feelers from the military's intelligence
service arm have reached their camp offering
videotapes of cheating in the 2004 elections
for a price they cannot afford.
(3) In another article entitled "Election returns
altered inside Congress-Loren" published in
the December 15, 2005 issue of Philippine
Daily Inquirer, protestant claimed that the
altering of election returns from Lanao del Sur
occurred right inside Congress as borne out by
the "spurious" returns being retabulated by the
Tribunal. She said the crime could have been
perpetrated by the operatives of protestee.
(4) In a news article entitled "Cebu recount
shows Noli, Loren votes tally with NBC"
appearing in the January 6, 2006 issue of The
Manila Times, Atty. Romulo Macalintal,
counsel of protestee, stated that "the initial
recount in Lapu-lapu showed that there was no
tampering of the ballot boxes in the city," and
further noted that the four (4) out of the 40
ballot boxes "contained tampered or spurious
ballots, but these are not connected to the
protest of Senator Legarda but on local
protests."
(5) In an article entitled "Noli condemns
tampering of ballots" appearing in the January
6, 2006 issue of Manila Standard Today, Atty.
Armando Marcelo said that their revisors at the
PET discovered that several ballots of Legarda
had been substituted with fake and spurious
ballots. Atty. Macalintal added that "the
substitution of ballots was so clear, that the
security markings of the substitute ballots were
not reflected or visible or that the ultraviolet
markings of the COMELEC seal do not appear
or are not present", and that "these ultraviolet
markings are readily visible in a genuine ballot
once lighted with an ultraviolet light."
 (6) In an article entitled "No cheating in Cebu,
Noli's lawyer insists," published in the January
19, 2006 issue of Philippine Daily Inquirer,
Atty. Macalintal said that "the results of the
actual count of the ballots for Legarda and De
Castro from the cities of Mandaue and Lapu-
lapu tallied with the results as reflected in the
election returns and tally boards. There was no
sign of any tampering of the results of the
ballot count as well as the votes reflected on
the returns and tally boards." He also said that
protestant Legarda is already estopped from
questioning the results of the election in these
cities since she failed to object to the returns.
(7) In an article entitled "GMA-Noli poll win in
Cebu affirmed," published in the January 19,
2006 issue of The Philippine Star, it was
reported that Atty. Macalintal, in his speech
before the Rotary Club of Pasay City, denied
protestant's claim that 90 percent of the ballots
from two major cities of the province were
found to be spurious by the Tribunal. He
added that "if a candidate would allow himself
to be cheated by 90 percent, then he or she
has no business to be in politics."
(8) In an article entitled "Why Noli is
unacceptable" appearing in the January 20,
2006 issue of The Daily Tribune, protestant
"told the media that the real ballots from
Mandaue City and Lapu-lapu City were 'clearly
substituted with fakes so that they would
correspond with the similarly spurious results
reflected in the election returns (ERs).'"
Surely, the parties do not harbor the idea that the re-
tabulation of election returns and revision of ballots is
the end of the election protest. They are merely the
first phase of the process and must still pass closer
scrutiny by the Tribunal.
The great public interest at stake behooves the
Tribunal to exercise its power and render judgment
free from public pressure and uninterrupted by the
parties' penchant for media mileage. Therefore, in
view of the foregoing reports where press statements
of both parties appeared as an attempt to influence
the proceedings, convince the public of their version
of facts, and create bias, prejudice and sympathies,
the Tribunal resolves to WARN both parties and
counsels from making public comments on all matters
that are sub judice.
Finally, acting on the pleadings filed in this electoral
protest case, the Tribunal further Resolves to
(a) NOTE the Comment on Protestee's Motion
to Allow Revisors to Examine All Ballots dated
January 24, 2006, filed by counsel for
protestant Legarda, in compliance with the
resolution of January 17, 2006, informing the
Tribunal that she interposes no objection and
opposition to the motion and GRANT the
aforesaid motion of the protestee;
(b) DIRECT all Head Revisors to ALLOW the
parties to examine the ballots within a
reasonable time;
(c) NOTE the Manifestation dated January 24,
2006, filed by counsel for protestant relative to
the Motion to Intervene filed by
Intervenor/Movant Amytis D. Batao, informing
the Tribunal that she is not waiving the revision
of the thirty-five (35) ballot boxes subject of the
 electoral protest for the mayoralty post of
Carmen, Cebu, and proposing that priority be
given and extended to the same so that upon
completion of the revision by the Tribunal, said
ballot boxes can be returned to the Regional
Trial Court of Mandaue City, at the earliest
time possible; and
(d) DENY the above Motion to Intervene of
Intervenor/Movant Amytis D. Batao, with
regard to the return of the ballot boxes
considering that the Tribunal has priority in
their possession and examination." Ynares
Santiago, J., no part.15
Revision of ballots was also conducted for the Second
Aspect in the Tribunal's premises by the duly designated
officials and trained personnel with both parties duly
represented. After ten months of continuous work by twenty-
four revision teams, under the supervision of Atty. Orlando
Cariño as the designated Consultant, the revision of the
ballots from the pilot province of Cebu was completed.
Revision also started for the second pilot province of
Pampanga, but was suspended after the Tribunal granted
the protestee's Motion for Partial Determination of Election
Protest Based on the Results of the Revision of Ballots of
the Province of Cebu and the Recanvass of Election
Returns from Lanao Del Sur and to Hold in Abeyance
Revision of Ballots from Pampanga.16
On May 3, 2007, the protestant was required to
deposit P3,914,500 for expenses necessary for the
continuation of the revision of ballots.17 But protestant failed
to pay on the due date. Thus, protestee moved to dismiss
the protest. The Tribunal extended the period for protestant
to make the necessary deposit. Even with this extension,
she still failed to pay. Thus, in a Resolution dated June 5,
2007, the Tribunal partially granted the protestee's motion to
dismiss pursuant to Rule 3318 of PET rules, and ordered the
dismissal of the Second Aspect of the protest as follows:
PET Case No. 003 (Loren B. Legarda vs. Noli L. de
Castro). - Acting on the protestee's Motion to Dismiss
dated May 9, 2007, the Tribunal Resolved to
(a) PARTIALLY GRANT the aforesaid motion
pursuant to Rule 33 of the 2005 PET Rules;
and
(b) DISMISS the second aspect of the protest
(revision of ballots), for protestant's failure to
make the required deposit.
The Tribunal further Resolved to DENY the request of
Atty. Eric C. Reginaldo in his letter dated May 29,
2007 that he be furnished with a copy of the petition
in this case for case study, as he is neither a party
nor a counsel of any party in this protest.19
On June 13, 2007, Hearing Commissioner Bernardo P.
Pardo submitted to the Tribunal a Report of the Proceedings
of the First Aspect.20
On June 18 2007, protestant filed an Urgent Motion to
Resolve First Aspect of the Protest, stating that she formally
moved for the immediate resolution of the submitted portion
of the First Aspect of the protest.21 Protestee did not
interpose any objection to this motion.
On July 10, 2007, the Tribunal resolved to note the report of
the Hearing Commissioner. In response to the motion filed
by the protestant, the Tribunal required the parties to submit
their respective memoranda within twenty days from notice,
pursuant to Rule 6122 of the PET Rules.23
On August 2, 2007, by counsel protestant submitted her
memorandum.24 On August 16, 2007, also by counsel
protestee filed his memorandum.25
On October 1, 2007, Hearing Commissioner Bernardo P.
Pardo submitted his Final Report of the Proceedings on
the First Aspect. After a thorough analysis of the parties'
memoranda and the results of the proceedings on the
protest, he recommended the dismissal of the First Aspect.26
For her part, protestant filed a memorandum stating that
based on the pieces of evidence she presented, both
documentary and testimonial, she has shown that electoral
fraud or cheating was committed through the so-
called dagdag-bawas strategy in the elections for President
and Vice-President held last May 14, 2004. Protestant in
particular submitted that electoral fraud was perpetuated as
follows:
1. That the correct votes of the parties were properly
recorded and tabulated in the election returns (ERs),
wherein she garnered a higher number of votes over
protestee De Castro;27
2. That when the ERs were canvassed at the
municipal level, the ER results were "wrongly and
erroneously" transposed and transferred to the
Statement of Votes by Precinct (SOV-P), such that
the protestee was given a higher number of votes;28
3. That the inaccurate results shown in the SOV-P
were totaled and transferred to the Municipal
Certificate of Canvass (MCOC), with protestee
prevailing over protestant;29
4. That the MCOC, with incorrect totals, was
transmitted to the Provincial Board of Canvassers,
wherein the inaccurate MCOC totals were transposed
to the Statement of Votes by Municipalities (SOV-
M);30
5. That the numbers reflected in the individual SOV-
Ms were totaled, and the sum for the whole province
was indicated in the Provincial Certificate of Canvass
(PCOC);31
6. That the PCOCs, with the erroneously transposed
totals stemming from the incorrect SOV-Ps, were the
ones canvassed by Congress, acting as the National
Board of Canvassers for the presidential and vice-
presidential positions;32 and
7. That Congress, sitting as the National Board of
Canvassers, merely "noted" and denied protestant's
request to view the precinct-source ERs, and
proceeded to canvass the "already-
manipulated/dagdag-bawas" PCOCs, resulting in the
flawed and farcical victory of protestee De Castro.33
Protestant avers that fraud, by means of the anomalous
election practices, was sufficiently proven by using her
sample-pilot precincts in two municipalities in Lanao del Sur,
particularly Balindong and Taraka. She likewise alleges that
the "dagdag-bawas" scheme, which was perpetrated
through the deliberate and erroneous transposition of results
from the authentic ERs to the SOV-Ps, was further
aggravated by an alleged cover-up operation to hide the
same. According to protestant, the Congress-retrieved
copies of the ERs which tally with the SOV-Ps, were fake
and spurious; they were intended to cover-up the electoral
fraud committed. Protestant submits that the correct voting
results are those reflected in the COMELEC and
NAMFREL's copies of the ERs, not those in the copies
retrieved from Congress.
Protestant further claims that while she presented pieces of
evidence, both testimonial and documentary, in only two
municipalities of Lanao del Sur, i.e., Balindong and Taraka,
to prove the electoral fraud perpetrated through the dagdag-
bawas strategy, she could have shown that such fraudulent
machination was replicated in several other municipalities of
Lanao del Sur and other provinces, such as Basilan, Sulu,
Tawi-Tawi, Maguindanao, Sultan Kudarat, and Lanao del
Sur if she had enough time.
Protestee, for his part, argues that the Congress-retrieved
ERs are public documents as defined under Section 19
(a),34 Rule 132 of the Rules of Court, and thus, they enjoy
the presumption of regularity accorded thereto, and they
are prima facie evidence of the facts stated therein. He
avers that there is prima facie presumption that the
Congress-retrieved copies of the ERs are genuine, authentic
and duly executed. Protestee submits that protestant has
failed to rebut such presumption with clear and convincing
evidence.
Protestee adds that a blank or unused ER form duly
authenticated by the COMELEC, with the correct and
complete set of security features and markings, should have
been marked and offered as evidence, to serve as basis for
comparison with the various sets of ERs presented to prove
the genuiness of the security features and markings in the
ER forms. On this score, according to protestee, the
protestant's counsel has failed in his task. At any rate,
protestee points out that the witnesses presented by
protestant, i.e., COMELEC Chairman Benjamin S. Abalos
and Mr. Robert Payongayong of the Ernest Printing
Corporation, testified that they were able to discern security
features and markings in the Congress-retrieved copies of
the ERs. Protestee also claims that when Mr. Payongayong
testified about the security features on the Congress' copies,
he was shown only a sample set thereof, and was not able
to examine all Congress' copies being contested. Protestee
thus concludes that the Tribunal cannot rely on the
testimonies of the protestant's witnesses debunking the
authenticity of the Congress-retrieved copies vis-à-vis the
other sets of ER copies.
Protestee further contends that, assuming arguendo that the
results reflected in the COMELEC, NAMFREL and
MBOC's35 copies of the ERs are re-tabulated, in lieu of the
results in the Congress-retrieved copies, or even if all the
votes in the 497 precincts included in the pilot areas, as well
as in the remaining protested precincts in the First Aspect,
are counted in favor of protestant, said votes would be
insufficient to overcome the lead of the protestee totaling
881,722 votes. Hence, in view of the failure of the protestant
to make out her case for the First Aspect of the protest, the
same and ultimately the protest in its entirety, must be
dismissed without consideration of the other provinces
mentioned.
The Hearing Commissioner further recommended, following
the precedent set in Defensor-Santiago v. Ramos,36that the
protest be dismissed for being moot and academic due to
abandonment and withdrawal resulting from protestant's
election and assumption of office as senator. He also
emphasized that assuming that dagdag-bawashad indeed
occurred and that the results in the COMELEC's ER copies
indicated in Annex "A" were to be used for re-tabulation,
protestant would be entitled to an additional 4,912 votes for
the municipality of Taraka and 5,019 votes for Balindong, or
a total of 9,931 votes, which is not adequate to surpass
protestee's lead of 881,722 votes over protestant.
On protestant's charges of electoral fraud allegedly
aggravated by a cover-up operation that switched or
exchanged the Congress' ER copies with spurious ones, the
Hearing Commissioner stressed that the Congress-retrieved
ERs are public documents which enjoy the presumption of
regularity and are prima facie evidence of the facts stated
therein. He concluded that the protestant failed to
adequately and convincingly rebut the presumption. The
Hearing Commissioner also emphasized that protestant
failed to substantiate sufficiently her claim that the
Congress-retrieved ERs are spurious and were switched
with the authentic copies during an alleged break-in at the
storage area of the House of Representatives as no
evidence was presented to prove such break-in. Hence, the
alleged discrepancies found in NAMFREL, MBOC and
COMELEC's copies of the ERs are insufficient to exclude
the Congress-retrieved ER copies from the re-tabulation.
The Hearing Commissioner also observed that in 11 out of
the 51 precincts in Balindong, Lanao del Sur, there are
similar entries in the Congress-retrieved ERs and in the
COMELEC's copies of the ERs, where protestant garnered
a higher number of votes over protestee, while the entries in
the respective SOV-Ms are different in that the protestee
received more votes, belying protestant's assertion that the
Congress-retrieved ERs should all be disregarded since the
results therein differ from those in the COMELEC's copies of
ERs and that they have been manipulated to favor
protestee. Consequently, according to the Hearing
Commissioner's report, protestant failed to make out her
case.
Thus, the Hearing Commissioner recommended that the
protestant's Motion to Resolve the First Aspect of the
Protest under consideration should be denied, and
consequently, the protest itself, be dismissed for lack of
legal and factual basis, as the pilot-tested revision of ballots
or re-tabulation of the certificates of canvass would not
affect the winning margin of the protestee in the final
canvass of the returns, in addition to the ground of
abandonment or withdrawal by reason of her candidacy for,
election and assumption of office as Senator of the
Philippines.37
After thorough deliberation and consideration of the issues
in this case, this Tribunal finds the abovestated
recommendations of its Hearing Commissioner well-taken,
and adopts them for its own.
Further, we are also in agreement that the protestant, in
assuming the office of Senator and discharging her duties
as such, which fact we can take judicial notice of,38 has
effectively abandoned or withdrawn her protest, or
abandoned her determination to protect and pursue the
public interest involved in the matter of who is the real
choice of the electorate. The most relevant precedent on
this issue is Defensor-Santiago v. Ramos,39 a decision
rendered by this Tribunal, which held that:
The term of office of the Senators elected in the 8
May 1995 election is six years, the first three of which
coincides with the last three years of the term of the
President elected in the 11 May 1992 synchronized
elections. The latter would be Protestant Santiago's
term if she would succeed in proving in the instant
protest that she was the true winner in the 1992
elections. In assuming the office of Senator then, the
Protestant has effectively abandoned or withdrawn
this protest, or at the very least, in the language
of Moraleja, abandoned her "determination to protect
and pursue the public interest involved in the matter
of who is the real choice of the electorate." Such
abandonment or withdrawal operates to render moot
the instant protest. Moreover, the dismissal of this
protest would serve public interest as it would
dissipate the aura of uncertainty as to the results of
the 1992 presidential election, thereby enhancing the
all-[too] crucial political stability of the nation during
this period of national recovery.
It must also be stressed that under the Rules of the
Presidential Electoral Tribunal, an election protest
 may be summarily dismissed, regardless of the public
policy and public interest implications thereof, on the
following grounds:
(1) The petition is insufficient in form and
substance;
(2) The petition is filed beyond the periods
provided in Rules 14 and 15 hereof;
(3) The filing fee is not paid within the periods
provided for in these Rules;
(4) The cash deposit, or the first P100,000.00
thereof, is not paid within 10 days after the
filing of the protest; and
(5) The petition or copies thereof and the
annexes thereto filed with the Tribunal are not
clearly legible.
Other grounds for a motion to dismiss, e.g., those
provided in the Rules of Court which apply in a
suppletory character, may likewise be pleaded as
affirmative defenses in the answer. After which, the
Tribunal may, in its discretion, hold a preliminary
hearing on such grounds. In sum, if an election
protest may be dismissed on technical grounds, then
it must be, for a decidedly stronger reason, if it has
become moot due to its abandonment by the
Protestant.40
In the case at bar, protestant's tenure in the Senate
coincides with the term of the Vice-Presidency 2004-2010,
that is the subject of her protest. In Defensor-Santiago v.
Ramos, the protestant's tenure in the Senate also coincided
with the term of the Presidency she was vying for. Like the
protestant in the aforementioned case, the protestant in the
case at bar filed her certificate of candidacy for the Senate,
campaigned for the office, assumed office after election, and
discharged the duties and functions of said office. Thus, we
agree concerning the applicability of the Defensor-
Santiago case as a precedent in the resolution of the
present protest, though they differ in that Defensor-
Santiago's case involves the Presidency while Legarda's
protest concerns only the Vice-Presidency.
On the matter of the alleged spurious ER copies, we agree
with the protestee that the protestant had not adequately
and convincingly rebutted the presumption that as public
documents, the Congress-retrieved ER copies, used for the
proclamation of the protestee by the NBC, are authentic and
duly executed in the regular course of official business. The
evidence adduced by protestee to show that the supposed
security features and markings in the Congress-retrieved
ERs and the COMELEC/NAMFREL's copies are different,
did not categorically establish that the Congress-retrieved
ERs are fake and spurious. To overcome the presumption of
regularity, there must be evidence that is clear, convincing
and more than merely preponderant. Absent such
convincing evidence, the presumption must be upheld.41 In
fact, the records show that even the witnesses presented by
the protestant testified that they were able to discern
security features and markings in the Congress-retrieved
ERs. The records also show that witnesses were not made
to examine all Congress-retrieved ERs in making
observations relative to security features and markings, but
only a sample set thereof was utilized, resulting in grave
insufficiency in the evidence presented by protestant.
As to the alleged break-in in Congress, which allegedly
facilitated the switching of ERs, no conclusive evidence has
been given. One of the protestant's own witnesses, Atty.
Artemio Adasa, Deputy General for Legislative Operations
of the House of Representatives, categorically denied that a
break-in and a switching of ERs had occurred in Congress.42
At any rate, as pointed out by protestee, even WHEREFORE, the First Aspect of the protest is
assuming arguendo that all the votes in the 497 precincts hereby DISMISSED for lack of legal and factual basis, as
included in the pilot areas for the First Aspect with the pilot-tested revision of ballots or re-tabulation of the
approximately 99,400 votes are considered in favor of certificates of canvass would not affect the winning margin
protestant, still the protestant would not be able to overcome of the protestee in the final canvass of the returns, in
the lead of the protestee. The margin in favor of protestee addition to the ground of abandonment or withdrawal by
adds up to a total of 881,722 votes, and it would take much reason of protestant's candidacy for, election to and
more than a hundred thousand votes to overcome this lead. assumption of the office of Senator of the Philippines.
This is what the protestant had set out to do in her protest The Second Aspect, having been already DISMISSED on
before the Tribunal, but unfortunately she failed to make out June 5, 2007, pursuant to Rule 33 of this Tribunal, the entire
her case.43 In fact, Taraka and Balindong, the only two Protest is now deemed DISMISSED and TERMINATED.
municipalities on which protestant anchors her arguments
for the First Aspect, would only yield an additional 9,931 SO ORDERED.
votes (4,912 votes for Taraka and 5,019 votes for
Balindong), a mere fraction of the lead of protestee over Puno, C.J., Ynares-Santiago, Sandoval-Gutierrez, Carpio,
protestant. To say that she could have shown that such Austria-Martinez, Corona, Carpio-Morales, Azcuna, Tinga,
fraudulent machination was replicated in several other Nachura, Reyes, Leonardo-de-Castro, JJ., concur.
municipalities of Lanao del Sur and other provinces, such as Chico-Nazario, J., on official leave.
Basilan, Sulu, Tawi-Tawi, Maguindanao, Sultan Kudarat and Velasco, Jr., J., on leave.
Lanao del Sur if she had enough time, is mere conjecture
and can not be considered convincing by this Tribunal. It is
the protestant herself who admits that she was able to
adduce evidence only in Taraka and Balindong, for lack of
time. But this Tribunal has been liberal in granting her plea
for time extension. To say that the protestant had shown
enough evidence to prove that the whole or even half
(440,862)44 of the lead of the protestee over the protestant
is spurious, would go against the grain of the evidence on
hand. One cannot say that half a million votes were illegally
obtained based on unclear evidence of cheating in less than
ten thousand. The protestant has been afforded ample
opportunity to adduce evidence in her behalf for the First
Aspect of the protest but the evidence presented is simply
insufficient to convince the Tribunal to render invalid all or
even half of the 881,722 votes that protestee had over her in
the last elections for Vice-President.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G. R. No. 105628 August 6, 1992
RODULFO SARMIENTO, petitioner,
vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF
CANVASSERS OF VIRAC and JOSE "CITO" ALBERTO
II, respondents.
G.R. No. 105725 August 6, 1992
EMMANUEL R. ALFELOR, petitioner,
vs.
COMMISSION ON ELECTIONS, THE CITY BOARD OF
CANVASSERS OF IRIGA CITY and JOSE C.
VILLANUEVA, respondents.
G.R. No. 105727 August 6, 1992
LEANDRO I. VERCELES, SR., petitioner,
vs.
COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF
CANVASSERS OF CATANDUANES and ROSALIE
ALBERTO-ESTACIO, respondents.
G.R. No. 105730 August 6, 1992
JESUS TYPOCO, JR., petitioner,
vs.
COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF
CANVASSERS OF CAMARINES NORTE, and
MUNICIPAL BOARD OF CANVASSERS OF JOSE
PANGANIBAN, CAMARINES NORTE, respondents.
G.R. No. 105771 August 6, 1992
ALBERTO U. GENOVA, JR., petitioner,
vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF
CANVASSERS OF CABUSAO, NEBRIDO F. SANTIAGO,
and EUGENIO AGUILAR, respondents.
G.R. No. 105778 August 6, 1992
MARIO S. MANLICLIC, petitioner,
vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF
CANVASSERS OF GEN. NATIVIDAD, NUEVA ECIJA,
BOARD OF ELECTION INSPECTORS OF PRECINCT
NOS. 12-A AND 13, BARANGAY MATAAS NA KAHOY,
GEN. NATIVIDAD, NUEVA ECIJA; BOARD OF ELECTION
INSPECTORS OF PRECINCT NOS. 15-A, BARANGAY
PICALEON, GEN. NATIVIDAD, NUEVA ECIJA;
PRECINCT NO. 25-A OF SAPANG BATO, GEN.
NATIVIDAD, NUEVA ECIJA; THE ELECTION
REGISTRAR and APOLONIO PASCUAL, respondents.
G.R. No. 105797 August 6, 1992
FRANCISCO G. RABAT, petitioner,
vs.
COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF
CANVASSERS OF DAVAO ORIENTAL and ROSALIND
YBASCO LOPEZ, respondents.
G-R. No. 105919 August 6, 1992
DATU MOHAMMAD A. SINSUAT, petitioner,
vs.
COMMISSION ON ELECTIONS, DATU MICHAEL
SINSUAT and ATTY. RUBEN PLATON, respondents.
G.R. No. 105977 August 6, 1992
ROSARIO A. VELASCO, petitioner,
vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF
CANVASSERS OF TERNATE, CAVITE, and CONDRADO
LINDO, respondents.
RESOLUTION
DAVIDE, JR., J.:
The special civil actions for certiorari hereby jointly resolved,
filed under Rule 65 of the Rules of Court, seek to set aside
the Resolutions of respondent Commission on Elections
(COMELEC) in the following Special Cases (SPC):
1) G.R. No. 105628 — SPC No. 92-266
granting the appeal from the ruling of the
Municipal Board of Canvassers of Virac,
Catanduanes which ordered the exclusion
from the canvass of one (1) election return;
2) G.R. No. 105725 — SPC No. 92-323
reversing the ruling of the City Board of
Canvassers of Iriga City which ordered the
exclusion from the canvass of six (6) election
returns and in UND No. 92-243 ordering the
said Board of Canvassers to include in the
canvass the election returns involved therein;
3) G.R. No. 105727 — SPC No. 92-288
dismissing the appeal of petitioner from the
ruling of the Provincial Board of Canvassers of
Catanduanes which ordered the inclusion in
the canvass the certificate of canvass for the
municipality of Virac, excluding the returns
from 48 precincts;
4) G.R. No. 105730 — SPC No. 92-315
affirming the ruling of the Municipal Board of
Canvassers of Jose Panganiban, Camarines
Norte which dismissed petitioner's opposition
to the composition of the said Municipal Board
of Canvassers;
5) G.R. No. 105771 — SPC No. 92-271
affirming the ruling of the Municipal Board of
Canvassers of Cabusao, Camarines Sur
which, among others, rejected petitioner's
objection to certain election returns;
6) G.R. No. 105778 — SPC No. 92-039
dismissing said case for non-compliance with
Section 20 of R.A. No. 7166;
7) G.R. No. 105797 — SPC No. 92-153
affirming the rulings of the Provincial Board of
Canvassers of Davao Oriental which rejected
petitioner's objections to the canvass of some
certificates of canvass;
8) G.R. No. 105919 — SPC No. 92-293
dismissing petitioner's appeal from the ruling of
the Municipal Board of Canvassers of Upi
Nuro, Maguindanao;
9) G.R. No. 105977 — SPC No. 92-087
denying the amended pre-proclamation
petition, which is an appeal from the rulings of
the Municipal Board of Canvassers of Ternate,
Cavite, and denying a subsequent motion to
resolve the issues raised in said amended
petition.
Comments had been filed only in G.R. No. 105727 and G.R.
No. 105797. This Court dispenses with the Comments in the
other cases.
Petitioners impugn the challenged resolutions above
specified as having been issued with grave abuse of
discretion in that, inter alia, the Commission, sitting en banc,
took cognizance of and decided the appeals without first
referring them to any of its Divisions.
Section 3, subdivision C, Article IX of the 1987 Constitution
expressly provides:
Sec. 3. The Commission on Elections may
sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to
expedite disposition of election cases,
including pre-proclamation controversies. All
such election cases shall be heard and
decided in division, provided that motions for
reconsideration of decisions shall be decided
by the Commission en banc. (Emphasis
supplied).
The 1973 Constitution prescribed another rule. Its Section 3,
subdivision C of Article XII provided as follows:
Sec. 3. The Commission on Elections may
sit en banc or in three divisions. All election
cases may be heard and decided by divisions,
except contests involving Members of the
Batasang Pambansa, which shall be heard
and decided en banc. . . .
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. In the COMELEC
RULES OF PROCEDURE, pre-proclamation cases are
classified as Special Cases 1 and, in compliance with the
above provision of the Constitution, the two (2) Divisions of
the Commission are vested with the authority to hear and
decide these Special Cases. 2 Rule 27 thereof governs
Special Cases; specifically, Section 9 of the said Rule
provides that appeals from rulings of the Board of
Canvassers are cognizable by any of the Divisions to which
they are assigned and not by the Commission en banc. Said
Section reads:
Sec. 9. Appeals from rulings of Board of
Canvassers. — (a) A party aggrieved by an
oral ruling of the board of canvassers who had
stated orally his intent to appeal said ruling
shall, within five days following receipt of a
copy of the written ruling of the board of
canvassers, file with the Commission a verified
appeal, furnishing a copy thereof to the board
of canvassers and the adverse party.
(b) The appeal filed with the Commission shall
be docketed by the Clerk of Court concerned.
(c) The answer/opposition shall be verified.
(d) The Division to which the case is assigned
shall immediately set the case for hearing.
(Emphasis supplied)
xxx xxx xxx
A motion to reconsider the decision or resolution of the
Division concerned may be filed within five (5) days from its
promulgation. 3 The Clerk of Court of the Division shall,
within twenty-four (24) hours from the filing thereof, notify
the Presiding Commissioner of such fact; in turn, the latter
shall certify the case to the Commission en
banc. 4Thereafter, the Clerk of Court of the Commission
shall calendar the motion for reconsideration for the
resolution of the Commission en banc within ten (10) days
from the certification. 5
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.
A resolution directing the COMELEC to assign said Special
Cases to the Divisions pursuant to Section 8, Rule 3 of its
Rules on assignment of cases would, logically, be in order.
However, Section 16 of R.A. No. 7166 6 provides that all
pre-proclamation cases pending before it shall be deemed
terminated at the beginning of the term of the office
involved. The said section provides as follows:
All pre-proclamation cases pending before the
Commission shall be deemed terminated at
the beginning of the term of the office involved
and the rulings of the boards of canvassers
concerned shall be deemed affirmed, without
prejudice to the filing of a regular election
protest by the aggrieved party. However,
proceedings may continue when on the basis
of the evidence thus far presented, the
Commission determines that the petition
appears meritorious and accordingly issues an
order for the proceeding to continue or when
an appropriate order has been issued by the
Supreme Court in a petition for certiorari.
The terms of the offices involved in the Special Cases
subject of these petitions commenced at noon of 30 June
1992. 7 These cases have thus been rendered moot and
such a resolution would only be an exercise in futility.
Accordingly, the instant petitions are DISMISSED without
prejudice to the filing by petitioners of regular election
protests. If the winning candidates for the positions involved
in the Special Cases subject of these petitions have already
been proclaimed, the running of the period to file the
protests shall be deemed suspended by the pendency of
such cases before the COMELEC and of these petitions
before this Court.
The Temporary Restraining Orders issued in G.R. No.
105727, G.R. No. 105730 and G.R. No. 105797 are hereby
LIFTED.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Padilla, Bidin, Griño-Aquino,
Medialdea, Regalado, Romero, Nocon and Bellosillo, JJ.
concur.
Separate Opinions
CRUZ, J., concurring:
My brother Feliciano submits powerfully persuasive
arguments, as usual, and I am tempted to join him except
for the prescription of the Constitution. Article IX-C, Section
3, says quite clearly:
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.
The language of the provision suggests that it is
jurisdictional and not merely directory and therefore requires
that all election cases be heard first by the division, whose
decision may be reconsidered only by the Commission en
banc.
The Supreme Court itself cannot consider in the first
instance cases coming under the exclusive original
jurisdiction of a lower court, like a petition for declaratory
relief. Even in the interest of a speedy administration of
justice, we can exercise only appellate jurisdiction over such
a case under Article VIII, Section 5(2) of the Constitution.
I find the quoted provision ill-considered, to say the least, in
view of the practical difficulties it may spawn. But we are
dealing with a mandatory provision of the Constitution
which, unless amended (corrected may be a better word),
must be observed.
FELICIANO, J., concurring and dissenting
I concur in the result reached by the majority in the
captioned cases, i.e., the dismissal of the various Petitions
for Certiorari in the cases disposed of by this Joint
Resolution.
I am, however, compelled to dissent from the Joint
Resolution to the extent that Resolution holds that the
Comelec En Banc acted without jurisdiction, or with grave
abuse of discretion, when it dismissed, for instance, the
appeal from the Municipal Board of Canvassers of Cabusao,
Camarines Sur, of petitioner Genova, among others, without
first referring such appeal to either of its Divisions, and
holding such dismissal as null and void and setting the same
aside.
Article IX(C)(3) of the 1987 Constitution reads as follows:
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.
It is important to start with the general proposition that the
Comelec may sit En Banc or in two (2) divisions. It is also
helpful to note that the powers and functions of the
Commission as specified in Article IX(C)(2) of the
Constitution are lodged in "The Commission on Elections"
as a whole; Section 2 did not try to distinguish between
powers and functions which are to be exercised En
Banc and those to be exercised by Divisions.
The second important constitutional principle is that the
fundamental objective of the above-quoted Article IX(C)(3)
is the expediting of the disposition of both election cases
and pre-proclamation controversies. We have, in many
cases, stressed heavily the need for disposing of election
protests as rapidly as possible. 1 We have also many times
ruled that pre-proclamation controversies are administrative
and summary in character and are to be resolved with the
utmost dispatch subject, of course, to the requirements of
notice to the parties and fairness in procedure. 2
Thirdly, I submit it is clear that the term "election cases" in
the last sentence of Article IX(C)(3) is properly read as
referring to election contests or election protests, and not to
all proceedings or controversies arising out of or relating to
elections. Article IX(C)(3), in its first sentence, clearly
distinguishes "election cases" from "pre-proclamation
controversies," and extends the constitutional objective of
expeditious disposition not only to "election cases" but also
to "pre-proclamation controversies." Thus, while the second
sentence of Article IX(C)(3) speaks of "all such election
cases," there is no indiscriminate lumping together of
election protests or election cases properly so-called with
pre-proclamation controversies.
It is pointed out by my distinguished brother in the Court,
Davide, J., that Rule 3(3) of the Rules of Procedure of the
Comelec (Comelec Rules) provides that:
Sec. 3. The Commission sitting in divisions. —
The Commission shall sit in two (2) divisions
to hear and decide protests or petitions in
ordinary actions, special actions, special
cases, provisional remedies, contempt and
special proceedings except in accreditation of
citizen's arms of the Commission. (Emphasis
supplied)
that "special cases" embrace pre-proclamation
controversies (Rule 27, Comelec Rules), and that
Rule 27(9) of the Comelec Rules states, among other
things, that
(d) the Division to which [the appeal from
rulings of a Board of Canvassers] is assigned
shall immediately set the case for hearing.
The majority is here, of course, trying to interpret
Article IX(C)(3) of the 1987 Constitution by referring
to relevant provisions of the Comelec Rules adopted
after the 1987 Constitution went into effect. From the
foregoing, my learned brother Davide concludes that
[i]t is clear from [Article IX(C)(3) 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 en
banc does not have the authority to hear and
decide it at the first instance. . . .
It seems to me, however, that Rules 3(3) and 27(9)(d) of the
Comelec Rules were not intended to establish a wall of
separation between the Divisions and the Commission En
Banc. Thus, for instance, while election cases properly so-
called are designated as "ordinary actions" and assigned to
the Divisions, the Comelec Rules authorize the Commission
itself to intervene or act in such ordinary actions. For
instance:
Rule 20 — Election Protests
xxx xxx xxx
Sec. 6. Revision of ballots. — When the
allegations in a protest or counter-protest so
warrant, orwhenever in the opinion of the
Commission or Division the interest of justice
so demands, it shall immediately order the
ballot boxes containing ballots and their keys,
list of voters with voting records, book of
voters, and other documents used in the
election to be brought before the Commission,
and shall order the revision of the ballots. For
this purpose, the Commission may constitute a
committee on the revision of ballots, to be
composed of a chairman, who shall be a
lawyer from the Commission, and two
members, one member and his substitute to
be proposed by the protestant, and the other
member and his substitute by the protestee.
The revision of the ballots shall be made in the
office of the Clerk of Court concerned at such
places as the Commission or the Division shall
designate, and shall be completed within three
(3) months from the date of the order, unless
otherwise directed by the Commission.
Sec. 7. Partial determination of the case. —
The Commission or the Division
concerned may direct the protestant and, in
case there is a counter-protest, the counter-
protestant, to state and designate in writing his
or their choice of the precincts, numbering not
more than twenty-five (25%) per centum of the
total number of precincts involved in the
protest and counter-protest, if any, whose
ballot boxes shall first be opened, and shall
thereafter make a partial determination of the
case . . .
xxx xxx xxx
Rule 30 — Injunction.
Sec. 1. Preliminary Injunction. — The
Commission or any of its Divisions may grant
preliminary injunction in any ordinary action,
special action, special case, or special relief
pending before it.
xxx xxx xxx
(Emphasis supplied)
Another difficulty with the position taken by the majority is
that under the Comelec Rules, not all pre-proclamation
controversies are necessarily assigned to a Division. There
are certain pre-proclamation controversies which, under the
Comelec Rules, are to be filed directly with the Commission
and to be heard and decided by the Commission En Banc:
Rule 27 — Pre-Proclamation Controversies
xxx xxx xxx
Sec. 4. Pre-proclamation controversies which
may be filled directly with the Commission.—
(a) Thefollowing pre-proclamation
controversies may be filed directly with the
Commission:
(1) When the issue involves the
illegal composition or
proceedings of the board of
canvassers as when a majority
or all the of the members do not
hold legal appointments or are in
fact usurpers; or when the
canvassing has been a mere
ceremony that was pre-
determined and manipulated to
result in nothing but a sham as
where there was convergence of
circumstances of precipitate
canvassing, terrorism, lack of
sufficient notice to the members
of the board of canvassers and
disregard of manifest
irregularities on the facts of the
questioned returns or certificates
of canvass in appropriate cases;
 (2) When the issue involves the
correction of manifest errors in
the tabulation or tallying of the
results during the canvassing as
where (1) a copy of the election
returns or certificate of canvass
was tabulated more than once,
(2) two or more copies of the
election returns of one precinct,
or two or more copies of
certificate of canvass were
tabulated separately, (3) there
had been a mistake in the
copying of the figures into the
statement of votes or into the
certificate of canvass, or (4) so-
called returns from non-existent
precincts were included in the
canvass, but such errors could
not have been discovered during
the canvassing despite the
exercise of due diligence and
proclamation of the winning
candidates had already been
made.
xxx xxx xxx
(d) The Clerk of Court concerned shall
immediately set the petition for hearing.
(e) The petition shall be heard and decided by
the Commission en banc.
xxx xxx xxx
(Emphasis supplied)
There is another factor which needs to be considered. The
appeals of the various petitioners in these cases from
rulings of the several Boards of Canvassers involved
(whether municipal or provincial) were resolved by the
Commission directly. Since all the members of the
Commission En Banc (and therefore, all the members of
each of the two [2] Divisions of the Commission) were
present when these cases were disposed of and dismissed,
it will be seen that, literally, the several appeals were heard
by all the members of a Division and at the same time by all
the members of the Commission En Banc. It may be seen
then that the second sentence of Article IX(C)(3) of the 1987
Constitution, quoted above, has been literally and effectively
complied with. To say, therefore, that the cases here
involved must first be decided by a Division and then only
referred to the Commission En Banc by a motion for
reconsideration, appears to be an exaltation of form over
substance. The present situation must be distinguished from
a situation where a constitutional or statutory provision
requires a matter to be resolved by a Commission En
Banc but is instead resolved only by a Division of that
Commission or body. In this latter situation, the decision of a
Division of the Commission or other agency
is not reasonably to be equated with the decision of the
Commission En Banc; for the latter is necessarily composed
of more commissioners than constitute one division thereof.
Finally, assuming arguendo that the majority have correctly
read Article IX(C)(3) of the 1987 Constitution, it should still
be pointed out that most, if not all, of the cases or
proceedings at bar, and the other seven hundred (700) plus
cases or proceedings which the Commission En
Banc summarily and similarly disposed of, are not even
genuine pre-proclamation controversies. Only certain
statutorily defined grounds or issues may be raised in a pre-
proclamation controversy. In the case(s) at bar, the grounds
or issues sought to be raised by the individual petitioners
are so insubstantial in nature as to fall considerably short of
a genuine pre-proclamation controversy. Indeed, in most if
not all of the cases at bar, the grounds raised and the
evidence submitted are so slight and tenuous as to lead to
the belief that they were initiated for no more edifying reason
than to delay the proclamation of the winners (per
canvassing) in the elections sought to be disputed. Had the
Commission En Banc taken seriously (undeservedly, in my
view) the seven hundred (700) plus proceedings before it
and required each to be heard first by Division and then by
the Commission En Banc on a motion for reconsideration,
several years would doubtless have been required to
dispose of all those proceedings, had Section 16 of R.A. No.
7166 not been enacted.
literal terms used in that provision, as encompassing only
election cases properly so called, i.e., election protests, and
not pre-proclamation controversies.
For all the foregoing, I reach the conclusion that the
Commission En banc did not act with grave abuse of
discretion nor without or in excess of jurisdiction in
dismissing the alleged pre-proclamation controversies at
bar, without first requiring each and everyone of them to be
heard in Division.

My ultimate submission is that we must read the second

sentence of Article IX(C)(3) of the 1987 Constitution in such
a manner as to avoid handcuffing, as it were, the Comelec
and denying it the essential flexibility it badly needs to be
able to carry out the basic constitutional mandate of
"expedit[ing] disposition of election [protests and] pre-
proclamation controversies." This teleological or purpose-
oriented reading may be achieved by regarding that second
sentence as directory and not mandatory (or jurisdictional) in
character. The legal distinction between directory and
mandatory provisions is as applicable to fundamental as it is
to statutory laws. 3 The characterization of a constitutional or
statutory provision as directory rather than mandatory is not
determined simply by the particular grammatical terms
employed; indeed, the problem of distinguishing between
directory and mandatory language would not arise if the use
of "will" or "shall" instead of "may" were regarded as
conclusive. That characterization is most rationally made on
the basis of the major purpose or objective which shines
through the constitutional language and which must be
given effect.

Alternatively, the second sentence of Article IX(C)(3) of the

1987 Constitution may be read, without departing from the
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
[G.R. No. 150946. October 23, 2003]
MUNICIPAL BOARD OF CANVASSERS OF GLAN,
ENRIQUE B. YAP, JR., VENANCIO S. WATA, JR.,
GILDO VILLORENTE, SR., JING MUSA,
BENEDICTO L. RUIZ, ANANIAS S. EMNACE,
VANNEVAR B. ALEGADO, ALITO ARNOLD
CARIO, SATURNINO BAG, JR., and FEDERICO J.
TANGAN, petitioners, vs. COMMISSION ON
ELECTIONS, (En Banc) and FLORA L.
BENZONAN, respondents.
DECISION
AZCUNA, J.:
The present petition for certiorari, under Rule 65 of the
Rules of Court, originated from SPC No. 01-032, a pre-
proclamation controversy instituted by respondent Flora L.
Benzonan with the Commission on Election (COMELEC) en
banc. Benzonan, who was a mayoralty candidate in the
Municipality of Glan, Sarangani during the May 14, 2001
elections, sought to declare null and void the canvass
conducted by the Municipal Board of Canvassers (MBC) of
Glan, Sarangani and to recall the proclamation of petitioners
Enrique B. Yap, Jr., Venancio S. Wata, Jr., Gildo Villorente,
Sr., Ting Musa, Benedicto L. Ruiz, Ananias S. Emnace,
Vannevar B. Alegado, Alito Arnold Carino, Saturnino Bag,
Jr. and Federico J. Tangan, as duly elected Mayor, Vice-
Mayor and members of the Sangguniang Bayan of Glan,
Sarangani, respectively.
Benzonan argued her pre-proclamation case on the
grounds that: a) after the original and second MBC had
resigned, the third MBC was illegally constituted as its
Chairman, Vice-Chairman and Secretary are not qualified
under the Omnibus Election Code;[1] b) the canvassing
proceedings, which were initially held in the Session Hall of
the Sangguniang Bayan of Glan, were later transferred to
the Provincial Capitol of Danao Province, contrary to
COMELEC Resolution No. 3848;[2] c) the Secretary of the
MBC failed to record the minutes of the canvassing
proceedings since the start of the canvass; d) neither
Benzonan nor her representatives were notified of the last
three days of the canvassing proceedings and,
consequently, they were not able to participate therein; e) a
substantial number of the election returns had been
tampered with or falsified; and f) the MBC had falsified the
certificate of canvass votes.[3]
On December 4, 2001, the COMELEC en banc issued a
resolution[4] finding that, based on the evidence presented,
the canvass of votes had been conducted in a place other
than the previous venue at the inception of the proceedings
to which all were notified. Thus, the proclamations of the
winning candidates were declared null and void and a re-
canvass of the election returns was ordered.
To reverse the COMELEC en bancs resolution,
petitioners filed the present petition with a prayer for a
temporary restraining order and preliminary prohibitory
injunction.[5] On December 21, 2001, the Court issued a
temporary restraining order directing the COMELEC to
cease and desist from implementing its December 4,
2001 resolution.
Although not raised as an issue, the Court is compelled
to resolve whether the COMELEC has jurisdiction over this
case.
 Section 3 (c) of Article IX-C of the Constitution reads: categorically stated that it is not disputed that what is
involved here is a pre-proclamation controversy.
The Commission on Elections may sit en banc or in two
Also undisputed is the fact that Benzonan filed her pre-
divisions, and shall promulgate its rules of procedure in
proclamation case directly with the COMELEC en banc and
order to expedite the disposition of election cases, including
that the case was subsequently decided by the COMELEC,
pre-proclamation controversies. All such election cases shall
sitting en banc. As aforestated, the COMELEC en banc is
be heard and decided in division, provided that motions for
without jurisdiction to decide cases involving these types of
reconsideration of decisions shall be decided by the
controversies in the first instance. Thus, the procedure taken
Commission en banc.
by Benzonan resulted in a resolution in her favor that the
Court must declare null and void and set aside.
Beginning with Sarmiento v. COMELEC[6] and reiterated
in subsequent cases,[7] the most recent being Balindong v. WHEREFORE, in view of the foregoing, the petition
COMELEC,[8] the Court has upheld this constitutional is GRANTED. The resolution of the COMELEC en
mandate and consistently ruled that the COMELEC banc dated December 4, 2001 in SPC No. 01-032 is hereby
sitting en banc does not have the requisite authority to hear declared null and void and set aside, and the COMELEC is
and decide election cases in the first instance. This power directed to assign SPC No. 01-032 to a division.
pertains to the divisions of the Commission and any decision
No costs.
by the Commission en banc as regards election cases
decided by it in the first instance is null and void for lack of SO ORDERED.
jurisdiction.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban,
It is important to clarify, however, that not all cases Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez,
relating to election laws filed before the COMELEC are Corona, Carpio-Morales, Callejo, Sr., and Tinga, JJ., concur.
required to be first heard by a division. Under the Ynares-Santiago, on official leave.
Constitution, the COMELEC exercises both administrative
and quasi-judicial powers. The COMELEC en banc can act
directly on matters falling within its administrative powers. It
is only when the exercise of quasi-judicial powers are
involved that the COMELEC is mandated to decide cases
first in division, and then, upon motion for
reconsideration, en banc.[9]
It is clear that SPC No. 01-032 is one that involves a
pre-proclamation controversy that requires the exercise of
the COMELECs quasi-judicial powers, as the illegality of the
composition and proceedings of the MBC, including the
falsification of election returns and certificate of canvass,
were alleged to be in issue.[10] Furthermore, in her comment
to the petition dated January 9, 2000,[11] Benzonan

EN BANC
G.R. No. 142527 March 1, 2001
ARSENIO ALVAREZ, petitioner,
vs.
COMMISSION ON ELECTIONS and LA RAINNE ABAD-
SARMIENTO, respondents.
RESOLUTION
QUISUMBING, J.:
This petition for certiorari assails the Resolution of the
Commission on Elections En Banc, denying the Motion for
Reconsideration of herein petitioner and affirming the
Resolution of the Second Division of the COMELEC that
modified the decision dated December 4, 1997 of the
Metropolitan Trial Court, Br. 40, of Quezon City in Election
Case No. 97-684. Said decision declared herein private
respondent La Rainne Abad-Sarmiento the duly elected
Punong Barangay of Barangay Doña Aurora, Quezon City
during the May 12, 1997 elections; directed the herein
petitioner to vacate and turnover the office of Punong
Barangay to private respondent upon the finality of the
resolution; and directed the Clerk of the COMELEC to notify
the appropriate authorities of the resolution upon final
disposition of this case, in consonance with the provisions of
Section 260 of B.P. Blg. 881 otherwise known as the
Omnibus Election Code, as amended.1
The facts of the case are as follows:
On May 12, 1997, petitioner was proclaimed duly elected
Punong Barangay of Doña Aurora, Quezon City. He
received 590 votes while his opponent, private respondent
Abad-Sarmiento, obtained 585 votes. Private respondent
filed an election protest claiming irregularities, i.e.
misreading and misappreciation of ballots by the Board of
Election Inspectors. After petitioner answered and the
issues were joined, the Metropolitan Trial Court ordered the
reopening and recounting of the ballots in ten contested
precincts. It subsequently rendered its decision that private
respondent won the election. She garnered 596 votes while
petitioner got 550 votes after the recount.2
On appeal, the Second Division of the COMELEC ruled that
private respondent won over petitioner. Private respondent,
meanwhile, filed a Motion for Execution pending appeal
which petitioner opposed. Both petitioner's Motion for
Reconsideration and private respondent's Motion for
Execution pending appeal were submitted for resolution.
The COMELEC En Banc denied the Motion for
Reconsideration and affirmed the decision of the Second
Division.3 It granted the Motion for Execution pending
appeal.
Petitioner brought before the Court this petition for Certiorari
alleging grave abuse of discretion on the part of the
COMELEC when:
(1) it did not preferentially dispose of the case;
(2) it prematurely acted on the Motion for Execution
pending appeal; and
 (3) it misinterpreted the Constitutional provision that
"decisions, final orders, or rulings of the Commission
on Election contests involving municipal and
barangay officials shall be final, executory and not
appealable".
First, petitioner avers that the Commission violated its
mandate on "preferential disposition of election contests" as
mandated by Section 3, Article IX-C, 1987 Constitution as
well as Section 257, Omnibus Election Code that the
COMELEC shall decide all election cases brought before it
within ninety days from the date of submission. He points
out that the case was ordered submitted for resolution on
November 15, 19994 but the COMELEC En Banc
promulgated its resolution only on April 4, 2000,5 four
months and four days after November 14, 1999.
We are not unaware of the Constitutional provision cited by
petitioner. We agree with him that election cases must be
resolved justly, expeditiously and inexpensively. We are also
not unaware of the requirement of Section 257 of the
Omnibus Election Code that election cases brought before
the Commission shall be decided within ninety days from the
date of submission for decision.6 The records show that
petitioner contested the results of ten (10) election precincts
involving scrutiny of affirmation, reversal, validity, invalidity,
legibility, misspelling, authenticity, and other irregularities in
these ballots. The COMELEC has numerous cases before it
where attention to minutiae is critical. Considering further
the tribunal's manpower and logistic limitations, it is sensible
to treat the procedural requirements on deadlines
realistically. Overly strict adherence to deadlines might
induce the Commission to resolve election contests
hurriedly by reason of lack of material time. In our view this
is not what the framers of the Code had intended since a
very strict construction might allow procedural flaws to
subvert the will of the electorate and would amount to
disenfranchisement of voters in numerous cases.
Petitioner avers the COMELEC abused its discretion when it
failed to treat the case preferentially. Petitioner misreads the
provision in Section 258 of the Omnibus Election Code. It
will be noted that the "preferential disposition" applies to
cases before the courts7and not those before the
COMELEC, as a faithful reading of the section will readily
show.
Further, we note that petitioner raises the alleged delay of
the COMELEC for the first time. As private respondent
pointed out, petitioner did not raise the issue before the
COMELEC when the case was pending before it. In fact,
private respondent points out that it was she who filed a
Motion for Early Resolution of the case when it was before
the COMELEC. The active participation of a party coupled
with his failure to object to the jurisdiction of the court or
quasi-judicial body where the action is pending, is
tantamount to an invocation of that jurisdiction and a
willingness to abide by the resolution of the case and will bar
said party from later impugning the court or the body's
jurisdiction.8 On the matter of the assailed resolution,
therefore, we find no grave abuse of discretion on this score
by the COMELEC.
Second, petitioner alleges that the COMELEC En Banc
granted the Motion for Execution pending appeal of private
respondents on April 2, 2000 when the appeal was no
longer pending. He claims that the motion had become
obsolete and unenforceable and the appeal should have
been allowed to take its normal course of "finality and
execution" after the 30-day period. Additionally, he avers it
did not give one good reason to allow the execution pending
appeal.
We note that when the motion for execution pending appeal
was filed, petitioner had a motion for reconsideration before
the Second Division. This pending motion for
reconsideration suspended the execution of the resolution of
the Second Division. Appropriately then, the division must
act on the motion for reconsideration. Thus, when the
Second Division resolved both petitioner's motion for
reconsideration and private respondent's motion for
execution pending appeal, it did so in the exercise of its
exclusive appellate jurisdiction. The requisites for the grant
of execution pending appeal are: (a) there must be a motion
by the prevailing party with notice to the adverse party; (b)
there must be a good reason for the execution pending
appeal; and (c) the good reason must be stated in a special
order.9 In our view, these three requisites were present. In
its motion for execution, private respondent cites that their
case had been pending for almost three years and the
remaining portion of the contested term was just two more
years. In a number of similar cases and for the same good
reasons, we upheld the COMELEC's decision to grant
execution pending appeal in the best interest of the
electorate.10 Correspondingly, we do not find that the
COMELEC abused its discretion when it allowed the
execution pending appeal.
Third, petitioner contends that the COMELEC misinterpreted
Section 2 (2), second paragraph, Article IX-C of the 1987
Constitution. He insists that factual findings of the
COMELEC in election cases involving municipal and
barangay officials may still be appealed. He cites
jurisprudence stating that such decisions, final orders or
rulings do not preclude a recourse to this Court by way of a
special civil action for certiorari,11 when grave abuse of
discretion has marred such factual determination,12 and
when there is arbitrariness in the factual findings.13
We agree with petitioner that election cases pertaining to
barangay elections may be appealed by way of a special
civil action for certiorari. But this recourse is available only
when the COMELEC's factual determinations are marred by
grave abuse of discretion. We find no such abuse in the
instant case. From the pleadings and the records, we
observed that the lower court and the COMELEC
meticulously pored over the ballots reviewed. Because of its
fact-finding facilities and its knowledge derived from actual
experience, the COMELEC is in a peculiarly advantageous
position to evaluate, appreciate and decide on factual
questions before it. Here, we find no basis for the allegation
that abuse of discretion or arbitrariness marred the factual
findings of the COMELEC. As previously held, factual
findings of the COMELEC based on its own assessments
and duly supported by evidence, are conclusive on this
Court, more so in the absence of a grave abuse of
discretion, arbitrariness, fraud, or error of law in the
questioned resolutions.14 Unless any of these causes are
clearly substantiated, the Court will not interfere with the
COMELEC's findings of fact.
WHEREFORE, the instant petition is DISMISSED, and the
En Banc Resolution of the Commission on Election is
AFFIRMED. Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Pardo, Buena, Gonzaga-Reyes,
Ynares-Santiago, De Leon, Jr., and Sandoval-Gutierrez,
JJ., concur.
 Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 199082 September 18, 2012
JOSE MIGUEL T. ARROYO, Petitioner,
vs.
DEPARTMENT OF JUSTICE; COMMISSION ON
ELECTIONS; HON. LEILA DE LIMA, in her capacity as
Secretary of the Department of Justice; HON. SIXTO
BRILLANTES, .JR., in his capacity as Chairperson of the
Commission on Elections; and the JOINT DOJ-
COMELEC PRELIMINARY INVESTIGATION COMMITTEE
and FACT-FINDING TEAM, Respondents.
x-----------------------x
G.R. No. 199085
BENJAMIN S. ABALOS, SR., Petitioner,
vs.
HON. LEILA DE LIMA, in her capacity as Secretary of
Justice; HON. SIXTO S. BRILLANTES, JR., in his
capacity as COMELEC Chairperson; RENE V.
SARMIENTO, LUCENITO N. TAGLE, ARMANDO V.
VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S.
LIM AND AUGUSTO C. LAGMAN, in their capacity as
COMELEC COMMISSIONERS; CLARO A. ARELLANO,
GEOUGE C. DEE, JACINTO G. ANG, ROMEO B. FORTES
AND MICHAEL D. VILLARET, in their capacity as
CHAIRPERSON AND MEMBERS, RESPECTIVELY, OF
THE JOINT DOJ-COMELEC PRELIMINARY
INVESTIGATION COMMITEE ON THE 2004 AND 2007
ELECTION FRAUD,Respondents.
x-----------------------x
G.R. No.199118
GLORIA MACAPAGAL-ARROYO, Petitioner,
vs.
COMMISSION ON ELECTIONS, represented by
Chairperson Sixto S. Brillantes, Jr., DEPARTMENT OF
JUSTICE, represented by Secretary Leila M. De Lima,
JOINT DOJ-COMELEC PRELIMINARY INVESTIGATION
COMMITTEE, SENATOR AQUILINO M. PIMENTEL III, and
DOJ-COMELEC FACT FINDING TEAM, Respondents.
DECISION
PERALTA, J.:
The Court is vested with the constitutional mandate to
resolve justiciable controversies by applying the rule of law
with due deference to the right to due process, irrespective
of the standing in society of the parties involved. It is an
assurance that in this jurisdiction, the wheels of justice turn
unimpeded by public opinion or clamor, but only for the
ultimate end of giving each and every member of society his
just due without distinction.
Before the Court are three (3) consolidated petitions and
supplemental petitions for Certiorari and Prohibition under
Rule 65 of the Rules of Court filed by Jose Miguel T. Arroyo
(Mike Arroyo) in G.R. No. 199082, Benjamin S. Abalos, Sr.
(Abalos) in G.R. No. 199085 and Gloria Macapagal
Arroyo (GMA) in G.R. No. 199118 assailing the following: (1)
Commission on Elections (Comelec) Resolution No. 9266
"In the Matter of the Commission on Elections and
Department of Justice Joint Investigation on the Alleged
Election Offenses Committed during the 2004 and 2007
Elections Pursuant to Law"1 dated August 2, 2011; (2) Joint
Order No. 001-2011 (Joint Order) "Creating and Constituting
a Joint DOJ-Comelec Preliminary Investigation Committee
[Joint Committee] and Fact-Finding Team on the 2004 and
2007 National Elections Electoral Fraud and
Manipulation Cases"2 dated August 15, 2011; (3) Rules of
Procedure on the Conduct of Preliminary Investigation on
the Alleged Election Fraud in the 2004 and 2007 National
Elections (Joint Committee Rules of Procedure)3 dated
August 23, 2011; and (4) Initial Report of the Fact-Finding
Team dated October 20, 2011.4 The consolidated petitions
and supplemental petitions likewise assail the validity of the
proceedings undertaken pursuant to the aforesaid
issuances.
The Antecedents
Acting on the discovery of alleged new evidence and the
surfacing of new witnesses indicating the occurrence of
massive electoral fraud and manipulation of election results
in the 2004 and 2007 National Elections, on August 2, 2011,
the Comelec issued Resolution No. 9266 approving the
creation of a committee jointly with the Department of
Justice (DOJ), which shall conduct preliminary investigation
on the alleged election offenses and anomalies committed
during the 2004 and 2007 elections.5
On August 4, 2011, the Secretary of Justice issued
Department Order No. 6406 naming three (3) of its
prosecutors to the Joint Committee.
On August 15, 2011, the Comelec and the DOJ issued Joint
Order No. 001-2011 creating and constituting a Joint
Committee and Fact-Finding Team on the 2004 and 2007
National Elections electoral fraud and manipulation cases.
The Joint Committee and the Fact-Finding Team are
composed of officials from the DOJ and the Comelec.
Section 2 of the Joint Order lays down the mandate of the
Joint Committee, to wit:
Section 2. Mandate. – The Committee shall conduct the
necessary preliminary investigation on the basis of the
evidence gathered and the charges recommended by the
Fact-Finding Team created and referred to in Section 4
hereof. Resolutions finding probable cause for election
offenses, defined and penalized under the Omnibus Election
Code and other election laws shall be approved by the
Comelec in accordance with the Comelec Rules of
Procedure. For other offenses, or those not covered by the
Omnibus Election Code and other election laws, the
corresponding criminal information may be filed directly with
the appropriate courts.7
The Fact-Finding Team,8 on the other hand, was created for
the purpose of gathering real, documentary, and testimonial
evidence which can be utilized in the preliminary
investigation to be conducted by the Joint Committee. Its
specific duties and functions as enumerated in Section 4 of
the Joint Order are as follows:
a) Gather and document reports, intelligence
information, and investigative leads from official as
well as unofficial sources and informants;
b) Conduct interviews, record testimonies, take
affidavits of witnesses, and collate material and
relevant documentary evidence, such as, but not
limited to, election documents used in the 2004 and
2007 national elections. For security reasons, or to
protect the identities of informants, the Fact-Finding
Team may conduct interviews or document
testimonies discreetly;
c) Assess and evaluate affidavits already executed
and other documentary evidence submitted or may
 be submitted to the Fact-Finding Team and/or
Committee;
d) Identify the offenders, their offenses and the
manner of their commission, individually or in
conspiracy, and the provisions of election and
general criminal laws violated, establish evidence for
individual criminal and administrative liability and
prosecution, and prepare the necessary
documentation, such as complaints and charge
sheets for the initiation of preliminary investigation
proceedings against said individuals to be conducted
by the Committee;
e) Regularly submit to the Committee, the Secretary
of Justice and the Chairman of the Comelec periodic
reports and recommendations, supported by real,
testimonial and documentary evidence, which may
then serve as the Committee’s basis for immediately
commencing appropriate preliminary investigation
proceedings, as provided under Section 6 of this Joint
Order; and
f) Upon the termination of its investigation, make a full
and final report to the Committee, the Secretary of
Justice, and the Chairman of the Comelec.9
Pursuant to Section 710 of the Joint Order, on August 23,
2011, the Joint Committee promulgated its Rules of
Procedure.
The members of the Fact-Finding Team unanimously
agreed that the subject of the Initial Report would be the
electoral fraud and manipulation of election results allegedly
committed during the May 14, 2007 elections. Thus, in its
Initial Report11 dated October 20, 2011, the Fact-Finding
Team concluded that manipulation of the results in the May
14, 2007 senatorial elections in the provinces of North and
South Cotabato and Maguindanao were indeed
perpetrated.12 The Fact-Finding Team recommended that
petitioner Abalos and ten (10) others13 be subjected to
preliminary investigation for electoral sabotage for
conspiring to manipulate the election results in North and
South Cotabato. Twenty-six (26)14persons, including
petitioners GMA and Abalos, were likewise recommended
for preliminary investigation for electoral sabotage for
manipulating the election results in Maguindanao.15 Several
persons were also recommended to be charged
administratively, while others,16 including petitioner Mike
Arroyo, were recommended to be subjected to further
investigation.17 The case resulting from the investigation of
the Fact-Finding Team was docketed as DOJ-Comelec
Case No. 001-2011.
Meanwhile, on October 17, 2011, Senator Aquilino Pimentel
III (Senator Pimentel) filed a Complaint-Affidavit18 for
Electoral Sabotage against petitioners and twelve
others19 and several John Does and Jane Does. The case
was docketed as DOJ-Comelec Case No. 002-2011.
On October 24, 2011, the Joint Committee issued two
subpoenas against petitioners in DOJ-Comelec Case Nos.
001-2011 and 002-2011.20 On November 3, 2011,
petitioners, through counsel, appeared before the Joint
Committee.21 On that preliminary hearing, the Joint
Committee consolidated the two DOJ-Comelec cases.
Respondents therein were likewise ordered to submit their
Counter-Affidavits by November 14, 2011.22
Thereafter, petitioners filed before the Court separate
Petitions for Certiorari and Prohibition with Prayer for the
Issuance of a Temporary Restraining Order (TRO) and/or
Writ of Preliminary Injunction assailing the creation of the
Joint Panel.23The petitions were eventually consolidated.
On November 14, 2011, petitioner Mike Arroyo filed a
Motion to Defer Proceedings24 before the Joint Committee,
in view of the pendency of his petition before the Court. On
the same day, petitioner GMA filed before the Joint
Committee an Omnibus Motion Ad Cautelam25 to require
Senator Pimentel to furnish her with documents referred to
in his complaint-affidavit and for the production of election
documents as basis for the charge of electoral sabotage.
GMA contended that for the crime of electoral sabotage to
be established, there is a need to present election
documents allegedly tampered which resulted in the
increase or decrease in the number of votes of local and
national candidates.26 GMA prayed that she be allowed to
file her counter-affidavit within ten (10) days from receipt of
the requested documents.27 Petitioner Abalos, for his part,
filed a Motion to Suspend Proceedings (Ex Abundante Ad
Cautelam),28 in view of the pendency of his petition brought
before the Court.
In an Order29 dated November 15, 2011, the Joint
Committee denied the aforesaid motions of petitioners. GMA
subsequently filed a motion for reconsideration.30
On November 16, 2011, the Joint Committee promulgated a
Joint Resolution which was later indorsed to the
Comelec.31On November 18, 2011, after conducting a
special session, the Comelec en banc issued a
Resolution32 approving and adopting the Joint Resolution
subject to modifications. The dispositive portion of the
Comelec Resolution reads:
WHEREFORE, premises considered, the Resolution of the
Joint DOJ-COMELEC Preliminary Investigation Committee
in DOJ-COMELEC Case No. 001-2011 and DOJ-COMELEC
Case No. 002-2011, upon the recommendation of the
COMELEC’s own representatives in the Committee, is
hereby APPROVED and ADOPTED, subject to the following
MODIFICATIONS:
1. That information/s for the crime of ELECTORAL
SABOTAGE under Section 42 (b) of R.A. 9369,
amending Section 27 (b) of R.A. 6646, be filed
against GLORIA MACAPAGAL-ARROYO,
BENJAMIN ABALOS, SR., LINTANG H. BEDOL,
DATU ANDAL AMPATUAN, SR. and PETER
REYES;
2. That the charges against MICHAEL C. ABAS,
NICODEMO FERRER, REUBEN BASIAO, JAIME
PAZ and NORIE K. UNAS be subjected to further
investigation;
3. That the charges against JOSE MIGUEL T.
ARROYO, BONG SERRANO, ALBERTO AGRA,
ANDREI BON TAGUM, GABBY CLAUDIO, ROMY
DAYDAY, JEREMY JAVIER, JOHN DOE a.k.a
BUTCH, be DISMISSED for insufficiency of evidence
to establish probable cause;
4. That the recommendation that ESTELITA B.
ORBASE, ELIZA A. GASMIN, ELSA Z. ATINEN,
SALIAO S. AMBA, MAGSAYSAY B. MOHAMAD,
SALONGA K. EDZELA, RAGAH D. AYUNAN,
SUSAN U. CANANBAN, RUSSAM H. MABANG,
ASUNCION CORAZON P. RENIEDO, NENA A.
ALID, MA. SUSAN L. ALBANO, ROHAIDA T.
KHALID, ARAW M. CAO, JEEHAN S. NUR, ALICE
A. LIM, NORIJEAN P. HANGKAL, CHRISTINA
ROAN M. DALOPE, and MACEDA L. ABO be
administratively charged be subjected to further
review by this Commission to determine the
appropriate charge/s that may be filed against them;
5. That the findings of lack of probable cause against
LILIAN S. SUAN-RADAM and YOGIE G.
MARTIRIZAR be REJECTED by reason of the
pendency of their respective cases before the
 Regional Trial Court of Pasay (Branch 114) and this
Commission for the same offense under
consideration.
In the higher interest of justice and by reason of manifest
attempts to frustrate the government’s right to prosecute and
to obtain speedy disposition of the present case pending
before the Commission, the Law Department and/or any
COMELEC legal officers as may be authorized by this
Commission is hereby ORDERED to IMMEDIATELY
PREPARE and FILE the necessary Information/s before the
appropriate court/s
SO ORDERED.33 (Emphasis supplied.)
On even date, pursuant to the above Resolution, the
Comelec’s Law Department filed with the Regional Trial
Court (RTC), Pasay City, an Information against petitioner
GMA, Governor Andal Ampatuan, Sr., and Atty. Lintang H.
Bedol, for violation of Section 42 (b)(3) of Republic Act
(R.A.) No. 9369, amending Section 27 (b) of R.A. No. 6646,
docketed as Criminal Case No. RPSY-11-04432-CR.34 The
case was raffled to Branch 112 and the corresponding
Warrant of Arrest was issued which was served on GMA on
the same day.35
On November 18, 2011, petitioner GMA filed with the RTC
an Urgent Omnibus Motion Ad Cautelam36 with leave to
allow the Joint Committee to resolve the motion for
reconsideration filed by GMA, to defer issuance of a warrant
of arrest and a Hold Departure Order, and to proceed to
judicial determination of probable cause. She, likewise, filed
with the Comelec a Motion to Vacate Ad Cautelam 37 praying
that its Resolution be vacated for being null and void. The
RTC nonetheless issued a warrant for her arrest which was
duly served. GMA thereafter filed a Motion for Bail which
was granted.
Issues
In G.R. No. 199082, petitioner Arroyo relies on the following
grounds:
A. THE CREATION OF THE JOINT COMMITTEE
VIA THE JOINT ORDER IS AT WAR WITH THE
DUE PROCESS AND EQUAL PROTECTION
CLAUSE OF THE CONSTITUTION, HAVING BEEN
CREATED WITH THE SOLE END IN VIEW OF
INVESTIGATING AND PROSECUTING CERTAIN
PERSONS AND INCIDENTS ONLY, SPECIFICALLY
THOSE INVOLVING THE 2004 AND 2007
ELECTIONS TO THE EXCLUSION OF OTHERS, IN
VIOLATION OF THE DOCTRINE IN BIRAOGO V.
TRUTH COMMISSION AND COMPANION CASE.
B. NO LAW OR RULE AUTHORIZES THE JOINT
COMMITTEE TO CONDUCT PRELIMINARY
INVESTIGATION.
C. THE CREATION OF THE JOINT COMMITTEE,
WHICH FUSES THE COMMISSION ON
ELECTIONS - A CONSTITUTIONALLY
INDEPENDENT BODY - WITH THE DEPARTMENT
OF JUSTICE – A POLITICAL AGENT OF THE
EXECUTIVE – DEMOLISHES THE
INDEPENDENCE OF THE COMMISSION ON
ELECTIONS AS PROVIDED IN ARTICLE IX(A),
SECTIONS 1 AND 2 AND IX(C) OF THE
CONSTITUTION.
D. IN VIEW OF THE NUMEROUS AND
PERSISTENT PUBLIC PRONOUNCEMENTS OF
THE PRESIDENT, HIS SPOKESPERSONS, THE
HEADS OF THE DOJ AND THE COMELEC, AND
MEMBERS OF THE JOINT COMMITTEE THAT
CASES SHOULD BE FILED AGAINST PETITIONER
 AND HIS FAMILY AND ALLEGED ASSOCIATES BY
THE END OF 2011, THE PROCEEDINGS
THEREOF SHOULD BE ENJOINED FOR BEING
PERSECUTORY, PURSUANT TO ALLADO V.
DIOKNO AND RELATED CASES.
E. THE CREATION AND CONSTITUTION OF THE
JOINT COMMITTEE TRAMPLES UPON
PETITIONER’S RIGHT TO A FAIR PROCEEDING
BY AN INDEPENDENT AND IMPARTIAL
TRIBUNAL.
F. THE COMELEC, AND SUBSEQUENTLY, THE
RTC OF PASAY CITY, HAVE ASSUMED
JURISDICTION OVER THE SUBJECT MATTER
SOUGHT TO BE INVESTIGATED BY THE JOINT
COMMITTEE, TO THE EXCLUSION OF ANY BODY,
INCLUDING THE JOINT COMMITTEE.38
In G.R. No. 199085, petitioner Abalos raises the following
issues:
I.
DOES JOINT ORDER NO. 001-2011, CREATING
THE JOINT DOJ-COMELEC FACT-FINDING TEAM
AND PRELIMINARY INVESTIGATON COMMITTEE
VIOLATE PETITIONER’S CONSTITUTIONAL RIGHT
TO EQUAL PROTECTION OF THE LAW?
II.
DID THE CONDUCT AND PROCEEDINGS OF THE
JOINT DOJ-COMELEC FACT-FINDING TEAM AND
PRELIMINARY INVESTIGATION COMMITTEE
VIOLATE PETITIONER’S CONSTITUTIONAL RIGHT
TO DUE PROCESS OF LAW?
III.
DID THE DOJ AND COMELEC VIOLATE THE
PRINCIPLE OF SEPARATION OF POWERS BY
CREATING THE JOINT DOJ-COMELEC FACT-
FINDING TEAM AND PRELIMINARY
INVESTIGATION COMMITTEE WHICH
ENCROACHED UPON THE POWERS OF THE
LEGISLATURE AND THE REGIONAL TRIAL
COURT?
IV.
DOES THE JOINT DOJ-COMELEC FACT-FINDING
TEAM AND PRELIMINARY INVESTIGATION
COMMITTEE HAVE THE POWER AND LEGAL
AUTHORITY TO CONDUCT A PRELIMINARY
INVESTIGATION OF THE SAME ELECTORAL
SABOTAGE CASES WHICH THE COMELEC HAD
ALREADY TAKEN COGNIZANCE OF?39
In G.R. No. 199118, petitioner GMA anchors her petition on
the following grounds:
I. THE EXECUTIVE DEPARTMENT, THROUGH
THE DOJ, OSTENSIBLY ACTING "JOINTLY" WITH
THE COMELEC, HAS ACTED BEYOND THE LIMITS
OF THE CONSTITUTION, IN THAT IT HAS
COMPROMISED THE INDEPENDENCE OF THE
COMELEC.
II. THE COMELEC HAS EFFECTIVELY ABDICATED
ITS CONSTITUTIONAL MANDATE "TO
INVESTIGATE AND, WHERE APPROPRIATE,
PROSECUTE CASES OF VIOLATIONS OF
ELECTION LAWS, INCLUDING ACTS OR
OMISSIONS CONSTITUTING ELECTION FRAUDS,
OFFENSES, AND MALPRACTICES" (ARTICLE IX-
 C, SECTION 26, 1987 CONSTITUTION OF THE
REPUBLIC OF THE PHILIPPINES) IN FAVOR OF
THE EXECUTIVE DEPARTMENT, ACTING
THROUGH RESPONDENT JUSTICE SECRETARY
DE LIMA.
III. DOJ-COMELEC JOINT ORDER NO. 001-2011
AND THE JOINT COMMITTEE RULES HAVE NOT
BEEN PUBLISHED PURSUANT TO TAÑADA V.
TUVERA, G.R. No. L-63915 (29 DECEMBER 1986).
AFTER ALL, AS THE HONORABLE COURT
LIKEWISE DECLARED IN REPUBLIC V. PILIPINAS
SHELL PETROLEUM CORPORATION, G.R. No.
173918 (08 APRIL 2008), (SIC)40
We deferred the resolution of petitioners’ Motion for the
Issuance of a TRO and, instead, required the respondents
to comment on the petitions.41
We likewise scheduled the consolidated cases for oral
argument for which the parties were directed to limit their
respective discussions to the following issues:
I. Whether or not Joint Order No. 001-2011 "Creating and
Constituting a Joint DOJ-COMELEC Preliminary
Investigation Committee and Fact-Finding Team on the
2004 and 2007 National Elections Electoral Fraud and
Manipulation Cases" is constitutional in light of the following:
A. The due process clause of the 1987 Constitution
B. The equal protection clause of the 1987
Constitution
C. The principle of separation of powers
D. The independence of the COMELEC as a
constitutional body
II. Whether or not the COMELEC has jurisdiction under the
law to conduct preliminary investigation jointly with the DOJ.
A. Whether or not due process was observed by the Joint
DOJ-COMELEC Fact-Finding Team and Preliminary
Investigation Committee, and the COMELEC in the conduct
of the preliminary investigation and approval of the Joint
Panel’s Resolution.42
The Court, thereafter, required the parties to submit their
respective Memoranda.43
The Court’s Ruling
Procedural Issues
Respondents claim that Mike Arroyo’s petition is moot and
that of GMA is moot and academic. They explain that the
Mike Arroyo petition presents no actual controversy that
necessitates the exercise by the Court of its power of judicial
review, considering that he was not among those indicted
for electoral sabotage in the 2007 national elections as the
Comelec dismissed the case against him for insufficiency of
evidence.44 Anent the 2004 national elections, the Fact-
Finding Team is yet to complete its investigation so Mike
Arroyo’s apprehensions are merely speculative and
anticipatory.45 As to the GMA petition, respondents aver that
any judgment of the Court will have no practical legal effect
because an Information has already been filed against her in
Branch 112, RTC of Pasay City.46 With the filing of the
Information, the RTC has already acquired jurisdiction over
the case, including all issues relating to the constitutionality
or legality of her preliminary investigation.47 Respondents
also claim that the issues relating to the constitutionality and
validity of the conduct of the preliminary investigation of
GMA are best left to the trial court, considering that it
involves questions of fact.48 Respondents add that
considering that the RTC has concurrent jurisdiction to
determine a constitutional issue, it will be practical for the
Court to allow the RTC to determine the constitutional
issues in this case.49
We do not agree.
Mootness
It cannot be gainsaid that for a court to exercise its power of
adjudication, there must be an actual case or controversy,
that is, one which involves a conflict of legal rights, an
assertion of opposite legal claims susceptible of judicial
resolution.50 The case must not be moot or academic or
based on extra-legal or other similar considerations not
cognizable by a court of justice.51
A case becomes moot and academic when it ceases to
present a justiciable controversy so that a declaration on the
issue would be of no practical use or value.52 However, a
case should not be dismissed simply because one of the
issues raised therein had become moot and academic by
the onset of a supervening event, whether intended or
incidental, if there are other causes which need to be
resolved after trial.53
Here, the consolidated cases are not rendered moot and
academic by the promulgation of the Joint Resolution by the
Joint Committee and the approval thereof by the Comelec. It
must be recalled that the main issues in the three petitions
before us are the constitutionality and legality of the creation
of the Joint Committee and the Fact-Finding Team as well
as the proceedings undertaken pursuant thereto. The
assailed Joint Order specifically provides that the Joint
Committee was created for purposes of investigating the
alleged massive electoral fraud during the 2004 and 2007
national elections. However, in the Fact-Finding Team’s
Initial Report, the team specifically agreed that the report
would focus on the irregularities during the 2007 elections.
Also, in its November 18, 2011 Resolution, the Comelec,
while directing the filing of information against petitioners
Abalos and GMA, ordered that further investigations be
conducted against the other respondents therein.
Apparently, the Fact-Finding Team’s and Joint
Committee’s respective mandates have not been fulfilled
and they are, therefore, bound to continue discharging their
duties set forth in the assailed Joint Order. Moreover,
petitioners question the validity of the proceedings
undertaken by the Fact-Finding Team and the Joint
Committee leading to the filing of information, on
constitutional grounds. We are not, therefore, barred from
deciding on the petitions simply by the occurrence of the
supervening events of filing an information and dismissal of
the charges.
Jurisdiction over the validity of the
conduct of the preliminary investigation
This is not the first time that the Court is confronted with the
issue of jurisdiction to conduct preliminary investigation and
at the same time with the propriety of the conduct of
preliminary investigation. In Cojuangco, Jr. v. Presidential
Commission on Good Government (PCGG),54 the Court
resolved two issues, namely: (1) whether or not the PCGG
has the power to conduct a preliminary investigation of the
anti-graft and corruption cases filed by the Solicitor General
against Eduardo Conjuangco, Jr. and other respondents for
the alleged misuse of coconut levy funds; and (2) on the
assumption that it has jurisdiction to conduct such a
preliminary investigation, whether or not its conduct
constitutes a violation of petitioner’s right to due process and
equal protection of the law.55 The Court decided these
issues notwithstanding the fact that Informations had
already been filed with the trial court.
In Allado v. Diokno,56 in a petition for certiorari assailing the
propriety of the issuance of a warrant of arrest, the Court
could not ignore the undue haste in the filing of the
information and the inordinate interest of the government in
filing the same. Thus, this Court took time to determine
whether or not there was, indeed, probable cause to warrant
the filing of information. This, notwithstanding the fact that
information had been filed and a warrant of arrest had been
issued. Petitioners therein came directly to this Court and
sought relief to rectify the injustice that they suffered.
Hierarchy of courts
Neither can the petitions be dismissed solely because of
violation of the principle of hierarchy of courts. This principle
requires that recourse must first be made to the lower-
ranked court exercising concurrent jurisdiction with a higher
court.57 The Supreme Court has original jurisdiction over
petitions for certiorari, prohibition, mandamus, quo warranto,
and habeas corpus. While this jurisdiction is shared with the
Court of Appeals and the RTC, a direct invocation of this
Court’s jurisdiction is allowed when there are special and
important reasons therefor, clearly and especially set out in
the petition, as in the present case.58 In the consolidated
petitions, petitioners invoke exemption from the observance
of the rule on hierarchy of courts in keeping with the Court’s
duty to determine whether or not the other branches of
government have kept themselves within the limits of the
Constitution and the laws, and that they have not abused
the discretion given to them.59
It is noteworthy that the consolidated petitions assail the
constitutionality of issuances and resolutions of the DOJ and
the Comelec. The general rule is that this Court shall
exercise only appellate jurisdiction over cases involving the
constitutionality of a statute, treaty or regulation.
However, such rule is subject to exception, that is, in
circumstances where the Court believes that resolving the
issue of constitutionality of a law or regulation at the first
instance is of paramount importance and immediately
affects the social, economic, and moral well-being of the
people.60
This case falls within the exception. An expeditious
resolution of the issues raised in the petitions is necessary.
Besides, the Court has entertained a direct resort to the
Court without the requisite motion for reconsideration filed
below or without exhaustion of administrative remedies
where there is an urgent necessity for the resolution of the
question and any further delay would prejudice the interests
of the government or of the petitioners and when there is an
alleged violation of due process, as in the present
case.61 We apply the same relaxation of the Rules in the
present case and, thus, entertain direct resort to this Court.
Substantive Issues
Bases for the Creation of the
Fact-Finding Team and Joint Committee
Section 2, Article IX-C of the 1987 Constitution enumerates
the powers and functions of the Comelec. Paragraph (6)
thereof vests in the Comelec the power to:
(6) File, upon a verified complaint, or on its own initiative,
petitions in court for inclusion or exclusion of voters;
investigate and, where appropriate, prosecute cases of
violations of election laws, including acts or omissions
constituting election frauds, offenses, and malpractices.
This was an important innovation introduced by the 1987
Constitution, because the above-quoted provision was not in
the 1935 and 1973 Constitutions.62
The grant to the Comelec of the power to investigate and
prosecute election offenses as an adjunct to the
enforcement and administration of all election laws is
intended to enable the Comelec to effectively insure to the
people the free, orderly, and honest conduct of elections.
The failure of the Comelec to exercise this power could
result in the frustration of the true will of the people and
make a mere idle ceremony of the sacred right and duty of
every qualified citizen to vote.63
The constitutional grant of prosecutorial power in the
Comelec was reflected in Section 265 of Batas Pambansa
Blg. 881, otherwise known as the Omnibus Election Code,
to wit:
Section 265. Prosecution. The Commission shall, through its
duly authorized legal officers, have the exclusive power to
conduct preliminary investigation of all election offenses
punishable under this Code, and to prosecute the same.
The Commission may avail of the assistance of other
prosecuting arms of the government: Provided, however,
That in the event that the Commission fails to act on any
complaint within four months from his filing, the complainant
may file the complaint with the office of the fiscal [public
prosecutor], or with the Ministry Department of Justice for
proper investigation and prosecution, if warranted.
Under the above provision of law, the power to conduct
preliminary investigation is vested exclusively with the
Comelec. The latter, however, was given by the same
provision of law the authority to avail itself of the assistance
of other prosecuting arms of the government.64 Thus, under
Section 2,65 Rule 34 of the Comelec Rules of Procedure,
provincial and city prosecutors and their assistants are given
continuing authority as deputies to conduct preliminary
investigation of complaints involving election offenses under
election laws and to prosecute the same. The complaints
may be filed directly with them or may be indorsed to them
by the petitioner or its duly authorized representatives.66
Thus, under the Omnibus Election Code, while the exclusive
jurisdiction to conduct preliminary investigation had been
lodged with the Comelec, the prosecutors had been
conducting preliminary investigations pursuant to the
continuing delegated authority given by the Comelec. The
reason for this delegation of authority has been explained in
Commission on Elections v. Español:67
The deputation of the Provincial and City Prosecutors is
necessitated by the need for prompt investigation and
dispensation of election cases as an indispensable part of
the task of securing fine, orderly, honest, peaceful and
credible elections. Enfeebled by lack of funds and the
magnitude of its workload, the petitioner does not have a
sufficient number of legal officers to conduct such
investigation and to prosecute such cases.68
Moreover, as we acknowledged in People v. Basilla,69 the
prompt and fair investigation and prosecution of election
offenses committed before or in the course of nationwide
elections would simply not be possible without the
assistance of provincial and city fiscals prosecutors and their
assistants and staff members, and of the state prosecutors
of the DOJ.70
Section 265 of the Omnibus Election Code was amended by
Section 43 of R.A. No. 9369,71 which reads:
Section 43. Section 265 of Batas Pambansa Blg. 881 is
hereby amended to read as follows:
SEC. 265. Prosecution. – The Commission shall, through its
duly authorized legal officers, have the power, concurrent
with the other prosecuting arms of the government, to
conduct preliminary investigation of all election offenses
punishable under this Code, and to prosecute the same.72
As clearly set forth above, instead of a mere delegated
authority, the other prosecuting arms of the government,
such as the DOJ, now exercise concurrent jurisdiction with
the Comelec to conduct preliminary investigation of all
election offenses and to prosecute the same.
It is, therefore, not only the power but the duty of both the
Comelec and the DOJ to perform any act necessary to
ensure the prompt and fair investigation and prosecution of
election offenses. Pursuant to the above constitutional and
statutory provisions, and as will be explained further below,
we find no impediment for the Comelec and the DOJ to
create the Joint Committee and Fact-Finding Team for the
purpose of conducting a thorough investigation of the
alleged massive electoral fraud and the manipulation of
election results in the 2004 and 2007 national elections
relating in particular to the presidential and senatorial
elections.73
Constitutionality of Joint-Order No. 001-2011
A. Equal Protection Clause
Petitioners claim that the creation of the Joint Committee
and Fact-Finding Team is in violation of the equal protection
clause of the Constitution because its sole purpose is the
investigation and prosecution of certain persons and
incidents. They argue that there is no substantial distinction
between the allegations of massive electoral fraud in 2004
and 2007, on the one hand, and previous and subsequent
national elections, on the other hand; and no substantial
distinction between petitioners and the other persons or
public officials who might have been involved in previous
election offenses. They insist that the Joint Panel was
created to target only the Arroyo Administration as well as
public officials linked to the Arroyo Administration. To bolster
their claim, petitioners explain that Joint Order No. 001-2011
is similar to Executive Order No. 1 (creating the Philippine
Truth Commission) which this Court had already nullified for
being
violative of the equal protection clause.
Respondents, however, refute the above contentions and
argue that the wide array of the possible election offenses
and broad spectrum of individuals who may have committed
them, if any, immediately negate the assertion that the
assailed orders are aimed only at the officials of the Arroyo
Administration.
We agree with the respondents.
The equal protection clause is enshrined in Section 1, Article
III of the Constitution which reads:
Section 1. No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be
denied the equal protection of the laws.74
The concept of equal protection has been laid down in
Biraogo v. Philippine Truth Commission of 2010:75
One of the basic principles on which this government was
founded is that of the equality of right which is embodied in
Section 1, Article III of the 1987 Constitution. The equal
protection of the laws is embraced in the concept of due
process, as every unfair discrimination offends the
requirements of justice and fair play. It has been embodied
in a separate clause, however, to provide for a more specific
guaranty against any form of undue favoritism or hostility
from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the
particular act assailed partakes of an unwarranted partiality
or prejudice, the sharper weapon to cut it down is the equal
protection clause.
According to a long line of decisions, equal protection simply
requires that all persons or things similarly situated should
be treated alike, both as to rights conferred and
responsibilities imposed. It requires public bodies and
institutions to treat similarly-situated individuals in a similar
manner. The purpose of the equal protection clause is to
secure every person within a state's jurisdiction against
intentional and arbitrary discrimination, whether occasioned
by the express terms of a statute or by its improper
execution through the state's duly-constituted authorities. In
other words, the concept of equal justice under the law
requires the state to govern impartially, and it may not draw
distinctions between individuals solely on differences that
are irrelevant to a legitimate governmental objective.76
Unlike the matter addressed by the Court’s ruling in Biraogo
v. Philippine Truth Commission of 2010, Joint Order No.
001-2011 cannot be nullified on the ground that it singles out
the officials of the Arroyo Administration and, therefore, it
infringes the equal protection clause. The Philippine Truth
Commission of 2010 was expressly created for the purpose
of investigating alleged graft and corruption during the
Arroyo Administration since Executive Order No.
177 specifically referred to the "previous administration";
while the Joint Committee was created for the purpose of
conducting preliminary investigation of election offenses
during the 2004 and 2007 elections. While GMA and Mike
Arroyo were among those subjected to preliminary
investigation, not all respondents therein were linked to
GMA as there were public officers who were investigated
upon in connection with their acts in the performance of their
official duties. Private individuals were also subjected to the
investigation by the Joint Committee.
The equal protection guarantee exists to prevent undue
favor or privilege. It is intended to eliminate discrimination
and oppression based on inequality. Recognizing the
existence of real differences among men, it does not
demand absolute equality. It merely requires that all persons
under like circumstances and conditions shall be treated
alike both as to privileges conferred and liabilities
enforced.78
We once held that the Office of the Ombudsman is granted
virtually plenary investigatory powers by the Constitution
and by law and thus may, for every particular investigation,
whether commenced by complaint or on its own initiative,
decide how best to pursue each investigation. Since the
Office of the Ombudsman is granted such latitude, its
varying treatment of similarly situated investigations cannot
by itself be considered a violation of any of the parties’ rights
to the equal protection of the laws.79 This same doctrine
should likewise apply in the present case.
Thus, as the constitutional body granted with the broad
power of enforcing and administering all laws and
regulations relative to the conduct of an election, plebiscite,
initiative, referendum and recall,80 and tasked to ensure free,
orderly, honest, peaceful, and credible elections,81 the
Comelec has the authority to determine how best to perform
such constitutional mandate. Pursuant to this authority, the
Comelec issues various resolutions prior to every local or
national elections setting forth the guidelines to be observed
in the conduct of the elections. This shows that every
election is distinct and requires different guidelines in order
to ensure that the rules are updated to respond to existing
circumstances.
Moreover, as has been practiced in the past, complaints for
violations of election laws may be filed either with the
Comelec or with the DOJ. The Comelec may even initiate,
motu proprio, complaints for election offenses.82
Pursuant to law and the Comelec’s own Rules,
investigations may be conducted either by the Comelec
itself through its law department or through the prosecutors
of the DOJ. These varying procedures and treatment do not,
however, mean that respondents are not treated alike. Thus,
petitioners’ insistence of infringement of their constitutional
right to equal protection of the law is misplaced.
B. Due Process
Petitioners claim that the Joint Panel does not possess the
required cold neutrality of an impartial judge because it is all
at once the evidence-gatherer, prosecutor and judge. They
explain that since the Fact-Finding Team has found
probable cause to subject them to preliminary investigation,
it is impossible for the Joint Committee to arrive at an
opposite conclusion. Petitioners likewise express doubts of
any possibility that the Joint Committee will be fair and
impartial to them as Secretary De Lima and Chairman
Brillantes had repeatedly expressed prejudgment against
petitioners through their statements captured by the media.
For their part, respondents contend that petitioners failed to
present proof that the President of the Philippines, Secretary
of Justice, and Chairman of the Comelec actually made the
statements allegedly prejudging their case and in the
context in which they interpreted them. They likewise
contend that assuming that said statements were made,
there was no showing that Secretary De Lima had tried to
intervene in the investigation to influence its outcome nor
was it proven that the Joint Committee itself had prejudged
the case. Lastly, they point out that Joint Order No. 001-
2011 created two bodies, the Fact-Finding Team and the
Joint Committee, with their respective mandates. Hence,
they cannot be considered as one.
We find for respondents.
It is settled that the conduct of preliminary investigation is,
like court proceedings, subject to the requirements of both
substantive and procedural due process.83 Preliminary
investigation is considered as a judicial proceeding wherein
the prosecutor or investigating officer, by the nature of his
functions, acts as a quasi-judicial officer.84 The authority of a
prosecutor or investigating officer duly empowered to
preside over or to conduct a preliminary investigation is no
less than that of a municipal judge or even an RTC
Judge.85 Thus, as emphasized by the Court in Ladlad v.
Velasco:86
x x x We cannot emphasize too strongly that prosecutors
should not allow, and should avoid, giving the impression
that their noble office is being used or prostituted, wittingly
or unwittingly, for political ends, or other purposes alien to,
or subversive of, the basic and fundamental objective of
serving the interest of justice evenhandedly, without fear or
favor to any and all litigants alike, whether rich or poor, weak
or strong, powerless or mighty. Only by strict adherence to
the established procedure may public's perception of the
impartiality of the prosecutor be enhanced.87
In this case, as correctly pointed out by respondents, there
was no showing that the statements claimed to have
prejudged the case against petitioners were made by
Secretary De Lima and Chairman Brillantes or were in the
prejudicial context in which petitioners claimed the
statements were made. A reading of the statements
allegedly made by them reveals that they were just
responding to hypothetical questions in the event that
probable cause would eventually be found by the Joint
Committee.
More importantly, there was no proof or even an allegation
that the Joint Committee itself, tasked to conduct the
requisite preliminary investigation against petitioners, made
biased statements that would convey to the public that the
members were favoring a particular party. Neither did the
petitioners show that the President of the Philippines, the
Secretary of Justice or the Chairman of the Comelec
intervened in the conduct of the preliminary investigation or
exerted undue pressure on their subordinates to tailor their
decision with their public declarations and adhere to a pre-
determined result.88 Moreover, insofar as the Comelec is
concerned, it must be emphasized that the constitutional
body is collegial. The act of the head of a collegial body
cannot be considered as that of the entire body itself.89 In
equating the alleged bias of the above-named officials with
that of the Joint Committee, there would be no arm of the
government credible enough to conduct a preliminary
investigation.90
It must also be emphasized that Joint Order No. 001-2011
created two bodies, namely: (1) the Fact-Finding Team
tasked to gather real, documentary and testimonial evidence
which can be utilized in the preliminary investigation to be
conducted by the Joint Committee; and (2) the Joint
Committee mandated to conduct preliminary investigation. It
is, therefore, inaccurate to say that there is only one body
which acted as evidence-gatherer, prosecutor and judge.
C. Separation of powers
Petitioners claim that the Joint Panel is a new public office
as shown by its composition, the creation of its own Rules of
Procedure, and the source of funding for its operation. It is
their position that the power of the DOJ to investigate the
commission of crimes and the Comelec’s constitutional
mandate to investigate and prosecute violations of election
laws do not include the power to create a new public office
in the guise of a joint committee. Thus, in creating the Joint
Panel, the DOJ and the Comelec encroached upon the
power of the Legislature to create public office.
Respondents dispute this and contend that the Joint
Committee and Fact-Finding Team are not new public
offices, but merely collaborations between two existing
government agencies sharing concurrent jurisdiction. This is
shown by the fact that the members of the Joint Panel are
existing officers of the DOJ and the Comelec who exercise
duties and functions that are already vested in them.
Again, we agree with respondents.
As clearly explained above, the Comelec is granted the
power to investigate, and where appropriate, prosecute
cases of election offenses. This is necessary in ensuring
free, orderly, honest, peaceful and credible elections. On the
other hand, the DOJ is mandated to administer the criminal
justice system in accordance with the accepted processes
thereof consisting in the investigation of the crimes,
prosecution of offenders and administration of the
correctional system.91 It is specifically empowered to
"investigate the commission of crimes, prosecute offenders
and administer the probation and correction system."92 Also,
the provincial or city prosecutors and their assistants, as
well as the national and regional state prosecutors, are
specifically named as the officers authorized to conduct
preliminary investigation.93 Recently, the Comelec, through
its duly authorized legal offices, is given the power,
concurrent with the other prosecuting arms of the
government such as the DOJ, to conduct preliminary
investigation of all election offenses.94
Undoubtedly, it is the Constitution, statutes, and the Rules of
Court and not the assailed Joint Order which give the DOJ
and the Comelec the power to conduct preliminary
investigation. No new power is given to them by virtue of the
assailed order. As to the members of the Joint Committee
and Fact-Finding Team, they perform such functions that
they already perform by virtue of their current positions as
prosecutors of the DOJ and legal officers of the Comelec.
Thus, in no way can we consider the Joint Committee as a
new public office.
D. Independence of the Comelec
Petitioners claim that in creating the Joint Panel, the
Comelec has effectively abdicated its constitutional mandate
to investigate and, where appropriate, to prosecute cases of
violation of election laws including acts or omissions
constituting election frauds, offenses, and malpractices in
favor of the Executive Department acting through the DOJ
Secretary. Under the set- up, the Comelec personnel is
placed under the supervision and control of the DOJ. The
chairperson is a DOJ official. Thus, the Comelec has
willingly surrendered its independence to the DOJ and has
acceded to share its exercise of judgment and discretion
with the Executive Branch.
We do not agree.
Section 1,95 Article IX-A of the 1987 Constitution expressly
describes all the Constitutional Commissions as
independent. Although essentially executive in nature, they
are not under the control of the President of the Philippines
in the discharge of their respective functions.96 The
Constitution envisions a truly independent Comelec
committed to ensure free, orderly, honest, peaceful, and
credible elections and to serve as the guardian of the
people’s sacred right of suffrage – the citizenry’s vital
weapon in effecting a peaceful change of government and in
achieving and promoting political stability.97
Prior to the amendment of Section 265 of the Omnibus
Election Code, the Comelec had the exclusive authority to
investigate and prosecute election offenses. In the
discharge of this exclusive power, the Comelec was given
the right to avail and, in fact, availed of the assistance of
other prosecuting arms of the government such as the
prosecutors of the DOJ. By virtue of this continuing
authority, the state prosecutors and the provincial or city
prosecutors were authorized to receive the complaint for
election offense and delegate the conduct of investigation to
any of their assistants. The investigating prosecutor, in turn,
would make a recommendation either to dismiss the
complaint or to file the information. This recommendation is
subject to the approval of the state, provincial or city
prosecutor, who himself may file the information with the
proper court if he finds sufficient cause to do so, subject,
however, to the accused’s right to appeal to the Comelec.98
Moreover, during the past national and local elections, the
Comelec issued Resolutions99 requesting the Secretary of
Justice to assign prosecutors as members of Special Task
Forces to assist the Comelec in the investigation and
prosecution of election offenses. These Special Task Forces
were created because of the need for additional lawyers to
handle the investigation and prosecution of election
offenses.
Clearly, the Comelec recognizes the need to delegate to the
prosecutors the power to conduct preliminary investigation.
Otherwise, the prompt resolution of alleged election
offenses will not be attained. This delegation of power,
otherwise known as deputation, has long been recognized
and, in fact, been utilized as an effective means of disposing
of various election offense cases. Apparently, as mere
deputies, the prosecutors played a vital role in the conduct
of preliminary investigation, in the resolution of complaints
filed before them, and in the filing of the informations with
the proper court.
As pointed out by the Court in Barangay Association for
National Advancement and Transparency (BANAT) Party-
List v. Commission on Elections,100 the grant of exclusive
power to investigate and prosecute cases of election
offenses to the Comelec was not by virtue of the
Constitution but by the Omnibus Election Code which was
eventually amended by Section 43 of R.A. 9369. Thus, the
DOJ now conducts preliminary investigation of election
offenses concurrently with the Comelec and no longer as
mere deputies. If the prosecutors had been allowed to
conduct preliminary investigation and file the necessary
information by virtue only of a delegated authority, they now
have better grounds to perform such function by virtue of the
statutory grant of authority. If deputation was justified
because of lack of funds and legal officers to ensure prompt
and fair investigation and prosecution of election offenses,
the same justification should be cited to justify the grant to
the other prosecuting arms of the government of such
concurrent jurisdiction.
In view of the foregoing disquisition, we find no impediment
for the creation of a Joint Committee. While the composition
of the Joint Committee and Fact-Finding Team is dominated
by DOJ officials, it does not necessarily follow that the
Comelec is inferior. Under the Joint Order, resolutions of the
Joint Committee finding probable cause for election offenses
shall still be approved by the Comelec in accordance with
the Comelec Rules of Procedure. This shows that the
Comelec, though it acts jointly with the DOJ, remains in
control of the proceedings. In no way can we say that the
Comelec has thereby abdicated its independence to the
executive department.
The text and intent of the constitutional provision granting
the Comelec the authority to investigate and prosecute
election offenses is to give the Comelec all the necessary
and incidental powers for it to achieve the objective of
holding free, orderly, honest, peaceful, and credible
elections.101 The Comelec should be allowed considerable
latitude in devising means and methods that will insure the
accomplishment of the great objective for which it was
created.102 We may not agree fully with its choice of means,
but unless these are clearly illegal or constitute gross abuse
of discretion, this Court should not interfere.103 Thus,
Comelec Resolution No. 9266, approving the creation of the
Joint Committee and Fact-Finding Team, should be viewed
not as an abdication of the constitutional body’s
independence but as a means to fulfill its duty of ensuring
the prompt investigation and prosecution of election
offenses as an adjunct of its mandate of ensuring a free,
orderly, honest, peaceful and credible elections.
Although it belongs to the executive department, as the
agency tasked to investigate crimes, prosecute offenders,
and administer the correctional system, the DOJ is likewise
not barred from acting jointly with the Comelec. It must be
emphasized that the DOJ and the Comelec exercise
concurrent jurisdiction in conducting preliminary
investigation of election offenses. The doctrine of concurrent
jurisdiction means equal jurisdiction to deal with the same
subject matter.104 Contrary to the contention of the
petitioners, there is no prohibition on simultaneous exercise
of power between two coordinate bodies. What is prohibited
is the situation where one files a complaint against a
respondent initially with one office (such as the Comelec) for
preliminary investigation which was immediately acted upon
by said office and the re-filing of substantially the same
complaint with another office (such as the DOJ). The
subsequent assumption of jurisdiction by the second office
over the cases filed will not be allowed. Indeed, it is a settled
rule that the body or agency that first takes cognizance of
the complaint shall exercise jurisdiction to the exclusion of
the others.105 As cogently held by the Court in Department of
Justice v. Hon. Liwag:106
To allow the same complaint to be filed successively before
two or more investigative bodies would promote multiplicity
of proceedings. It would also cause undue difficulties to the
respondent who would have to appear and defend his
position before every agency or body where the same
complaint was filed. This would lead hapless litigants at a
loss as to where to appear and plead their cause or
defense.
There is yet another undesirable consequence. There is the
distinct possibility that the two bodies exercising jurisdiction
at the same time would come up with conflicting resolutions
regarding the guilt of the respondents.
Finally, the second investigation would entail an
unnecessary expenditure of public funds, and the use of
valuable and limited resources of Government, in a
duplication of proceedings already started with the
Ombudsman.107
None of these problems would likely arise in the present
case. The Comelec and the DOJ themselves agreed that
they would exercise their concurrent jurisdiction jointly.
Although the preliminary investigation was conducted on the
basis of two complaints – the initial report of the Fact-
Finding Team and the complaint of Senator Pimentel – both
complaints were filed with the Joint Committee.
Consequently, the complaints were filed with and the
preliminary investigation was conducted by only one
investigative body. Thus, we find no reason to disallow the
exercise of concurrent jurisdiction jointly by those given such
authority. This is especially true in this case given the
magnitude of the crimes allegedly committed by petitioners.
The joint preliminary investigation also serves to maximize
the resources and manpower of both the Comelec and the
DOJ for the prompt disposition of the cases.
Citing the principle of concurrent jurisdiction, petitioners
insist that the investigation conducted by the Comelec
involving Radam and Martirizar bars the creation of the Joint
Committee for purposes of conducting another preliminary
investigation. In short, they claim that the exercise by the
Comelec of its jurisdiction to investigate excludes other
bodies such as the DOJ and the Joint Committee from
taking cognizance of the case. Petitioners add that the
investigation should have been conducted also by the
Comelec as the 2007 cases of Radam and Martirizar include
several John Does and Jane Does.
We do not agree.
While the Comelec conducted the preliminary investigation
against Radam, Martirizar and other unidentified persons, it
only pertains to election offenses allegedly committed in
North and South Cotabato. On the other hand, the
preliminary investigation conducted by the Joint Committee
(involving GMA) pertains to election offenses supposedly
committed in Maguindanao. More importantly, considering
the broad power of the Comelec to choose the means of
fulfilling its duty of ensuring the prompt investigation and
prosecution of election offenses as discussed earlier, there
is nothing wrong if the Comelec chooses to work jointly with
the DOJ in the conduct of said investigation. To reiterate, in
no way can we consider this as an act abdicating the
independence of the Comelec.
Publication Requirement
In the conduct of preliminary investigation, the DOJ is
governed by the Rules of Court, while the Comelec is
governed by the 1993 Comelec Rules of Procedure. There
is, therefore, no need to promulgate new Rules as may be
complementary to the DOJ and Comelec Rules.
As earlier discussed, considering that Joint Order No. 001-
2011 only enables the Comelec and the DOJ to exercise
powers which are already vested in them by the Constitution
and other existing laws, it need not be published for it to be
valid and effective. A close examination of the Joint
Committee’s Rules of Procedure, however, would show that
its provisions affect the public. Specifically, the following
provisions of the Rules either restrict the rights of or provide
remedies to the affected parties, to wit: (1) Section 1
provides that "the Joint Committee will no longer entertain
complaints from the public as soon as the Fact-Finding
Team submits its final report, except for such complaints
involving offenses mentioned in the Fact-Finding Team’s
Final Report"; (2) Section 2 states that "the Joint Committee
shall not entertain a Motion to Dismiss"; and (3) Section 5
provides that a Motion for Reconsideration may be availed
of by the aggrieved parties against the Joint Committee’s
Resolution. Consequently, publication of the Rules is
necessary.
The publication requirement covers not only statutes but
administrative regulations and issuances, as clearly outlined
in Tañada v. Tuvera:108 effectivity, which shall begin fifteen
days after publication unless a different effectivity date is
fixed by the legislature. Covered by this rule are presidential
decrees and executive orders promulgated by the President
in the exercise of legislative powers whenever the same are
validly delegated by the legislature or, at present, directly
conferred by the Constitution. Administrative rules and
regulations must also be published if their purpose is to
enforce or implement existing law pursuant also to a valid
delegation. Interpretative regulations and those merely
internal in nature, that is, regulating only the personnel of
the administrative agency and not the public, need not be
published. Neither is publication required of the so called
letters of instructions issued by administrative superiors
concerning the rules or guidelines to be followed by their
subordinates in the performance of their duties.109
As opposed to Honasan II v. The Panel of Investigating
Prosecutors of the Department of Justice,110 where the Court
held that OMB-DOJ Joint Circular No. 95-001 is only an
internal arrangement between the DOJ and the Office of the
Ombudsman outlining the authority and responsibilities
among prosecutors of both offices in the conduct of
preliminary investigation, the assailed Joint Committee’s
Rules of Procedure regulate not only the prosecutors of the
DOJ and the Comelec but also the conduct and rights of
persons, or the public in general. The publication
requirement should, therefore, not be ignored.
Publication is a necessary component of procedural due
process to give as wide publicity as possible so that all
persons having an interest in the proceedings may be
notified thereof.111 The requirement of publication is
intended to satisfy the basic requirements of due process. It
is imperative for it will be the height of injustice to punish or
otherwise burden a citizen for the transgressions of a law or
rule of which he had no notice whatsoever.112
Nevertheless, even if the Joint Committee’s Rules of
Procedure is ineffective for lack of publication, the
proceedings undertaken by the Joint Committee are not
rendered null and void for that reason, because the
preliminary investigation was conducted by the Joint
Committee pursuant to the procedures laid down in Rule
112 of the Rules on Criminal Procedure and the 1993
Comelec Rules of Procedure.
Validity of the Conduct of
Preliminary Investigation
In her Supplemental Petition,113 GMA outlines the incidents
that took place after the filing of the instant petition,
specifically the issuance by the Joint Committee of the Joint
Resolution, the approval with modification of such resolution
by the Comelec and the filing of information and the
issuance of a warrant of arrest by the RTC. With these
supervening events, GMA further assails the validity of the
proceedings that took place based on the following
additional grounds: (1) the undue and unbelievable haste
attending the Joint Committee’s conduct of the preliminary
investigation, its resolution of the case, and its referral to
and approval by the Comelec, taken in conjunction with the
statements from the Office of the President, demonstrate a
deliberate and reprehensible pattern of abuse of inalienable
rights and a blatant disregard of the envisioned integrity and
independence of the Comelec; (2) as it stands, the creation
of the Joint Committee was for the singular purpose of
railroading the proceedings in the prosecution of the
petitioner and in flagrant violation of her right to due process
and equal protection of the laws; (3) the proceedings of the
Joint Committee cannot be considered impartial and fair,
considering that respondents have acted as law enforcers,
who conducted the criminal investigation, gathered evidence
and thereafter ordered the filing of complaints, and at the
same time authorized preliminary investigation based on the
complaints they caused to be filed; (4) the Comelec became
an instrument of oppression when it hastily approved the
resolution of the Joint Committee even if two of its members
were in no position to cast their votes as they admitted to
not having yet read the voluminous records of the cases;
and (5) flagrant and repeated violations of her right to due
process at every stage of the proceedings demonstrate a
deliberate attempt to single out petitioner through the
creation of the Joint Committee.114
In their Supplement to the Consolidated
Comment,115 respondents accuse petitioners of violating the
rule against forum shopping. They contend that in filing the
Supplemental Petition before the Court, the Urgent Omnibus
Motion Ad Cautelam with the RTC, and the Motion to Vacate
Ad Cautelam with the Comelec, GMA raises the common
issue of whether or not the proceedings before the Joint
Committee and the Comelec are null and void for violating
the Constitution. Respondents likewise claim that the issues
raised in the supplemental petition are factual which is
beyond the power of this Court to decide.
We cannot dismiss the cases before us on the ground of
forum shopping.
Forum shopping is the act of a party against whom an
adverse judgment has been rendered in one forum, of
seeking another and possibly favorable opinion in another
forum other than by appeal or the special civil action of
certiorari.116There can also be forum shopping when a party
institutes two or more suits in different courts, either
simultaneously or successively, in order to ask the courts to
rule on the same and related causes and/or to grant the
same or substantially the same reliefs on the supposition
that one or the other court would make a favorable
disposition or increase a party’s chances of obtaining a
favorable decision or action.117
Indeed, petitioner GMA filed a Supplemental Petition before
the Court, an Urgent Omnibus Motion Ad Cautelam before
the RTC, and a Motion to Vacate Ad Cautelam before the
Comelec, emphasizing the unbelievable haste committed by
the Joint Committee and the Comelec in disposing of the
cases before them. However, a plain reading of the
allegations in GMA’s motion before the RTC would show
that GMA raised the issue of undue haste in issuing the
Joint Resolution only in support of her prayer for the trial
court to hold in abeyance the issuance of the warrant of
arrest, considering that her motion for reconsideration of the
denial of her motion to be furnished copies of documents
was not yet acted upon by the Joint Committee. If at all the
constitutional issue of violation of due process was raised, it
was merely incidental. More importantly, GMA raised in her
motion with the RTC the finding of probable cause as she
sought the judicial determination of probable cause which is
not an issue in the petitions before us. GMA’s ultimate
prayer is actually for the court to defer the issuance of the
warrant of arrest. Clearly, the reliefs sought in the RTC are
different from the reliefs sought in this case. Thus, there is
no forum shopping.
With respect to the Motion to Vacate Ad Cautelam filed with
the Comelec, while the issues raised therein are
substantially similar to the issues in the supplemental
petition which, therefore, strictly speaking, warrants outright
dismissal on the ground of forum shopping, we cannot do so
in this case in light of the due process issues raised by
GMA.118 It is worthy to note that the main issues in the
present petitions are the constitutionality of the creation of
the Joint Panel and the validity of the proceedings
undertaken pursuant thereto for alleged violation of the
constitutional right to due process. In questioning the
propriety of the conduct of the preliminary investigation in
her Supplemental Petition, GMA only raises her continuing
objection to the exercise of jurisdiction of the Joint
Committee and the Comelec. There is, therefore, no
impediment for the Court to rule on the validity of the
conduct of preliminary investigation.
In Uy v. Office of the Ombudsman,119 the Court explained
the nature of preliminary investigation, to wit:
A preliminary investigation is held before an accused is
placed on trial to secure the innocent against hasty,
malicious, and oppressive prosecution; to protect him from
an open and public accusation of a crime, as well as from
the trouble, expenses, and anxiety of a public trial. It is also
intended to protect the state from having to conduct useless
and expensive trials. While the right is statutory rather than
constitutional, it is a component of due process in
administering criminal justice. The right to have a
preliminary investigation conducted before being bound for
trial and before being exposed to the risk of incarceration
and penalty is not a mere formal or technical right; it is a
substantive right. To deny the accused's claim to a
preliminary investigation is to deprive him of the full measure
of his right to due process.120
A preliminary investigation is the crucial sieve in the criminal
justice system which spells for an individual the difference
between months if not years of agonizing trial and possibly
jail term, on the one hand, and peace of mind and liberty, on
the other hand. Thus, we have characterized the right to a
preliminary investigation as not a mere formal or technical
right but a substantive one, forming part of due process in
criminal justice.121
In a preliminary investigation, the Rules of Court guarantee
the petitioners basic due process rights such as the right to
be furnished a copy of the complaint, the affidavits, and
other supporting documents, and the right to submit counter-
affidavits, and other supporting documents in her
defense.122 Admittedly, GMA received the notice requiring
her to submit her counter-affidavit. Yet, she did not comply,
allegedly because she could not prepare her counter-
affidavit. She claimed that she was not furnished by Senator
Pimentel pertinent documents that she needed to
adequately prepare her counter-affidavit.
In her Omnibus Motion Ad Cautelam123 to require Senator
Pimentel to furnish her with documents referred to in his
complaint-affidavit and for production of election documents
as basis for the charge of electoral sabotage, GMA prayed
that the Joint Committee issue an Order directing the Fact-
Finding Team and Senator Pimentel to furnish her with
copies of the following documents:
a. Complaint-affidavit and other relevant documents
of Senator Aquilino Pimentel III filed before the
Commission on Elections against Attys. Lilia Suan-
Radam and Yogie Martirizar, as well as the
Informations filed in the Regional Trial Court of Pasay
City, Branch 114 in Criminal Case Nos. R-PSU-11-
03190-CR to R-PSU-11-03200-CR.
b. Records in the petitions filed by complainant
Pimentel before the National Board of Canvassers,
specifically in NBC Case Nos. 07-162, 07-168, 07-
157, 07-159, 07-161 and 07-163.
 c. Documents which served as basis in the
allegations of "Significant findings specific to the
protested municipalities in the Province of
Maguindanao."
d. Documents which served as basis in the
allegations of "Significant findings specific to the
protested municipalities in the Province of Lanao del
Norte."
e. Documents which served as basis in the
allegations of "Significant findings specific to the
protested municipalities in the Province of Shariff
Kabunsuan."
f. Documents which served as basis in the allegations
of "Significant findings specific to the protested
municipalities in the Province of Lanao del Sur."
g. Documents which served as basis in the
allegations of "Significant findings specific to the
protested municipalities in the Province of Sulu."
h. Documents which served as basis in the
allegations of "Significant findings specific to the
protested municipalities in the Province of Basilan."
i. Documents which served as basis in the allegations
of "Significant findings specific to the protested
municipalities in the Province of Sultan Kudarat."124
GMA likewise requested the production of election
documents used in the Provinces of South and North
Cotabato and Maguindanao.125
The Joint Committee, however, denied GMA’s motion which
carried with it the denial to extend the filing of her counter-
affidavit. Consequently, the cases were submitted for
resolution sans GMA’s and the other petitioners’ counter-
affidavits. This, according to GMA, violates her right to due
process of law.
We do not agree.
GMA’s insistence of her right to be furnished the above-
enumerated documents is based on Section 3 (b), Rule 112
of the Rules on Criminal Procedure, which reads:
(b) x x x
The respondent shall have the right to examine the evidence
submitted by the complainant which he may not have been
furnished and to copy them at his expense. If the evidence
is voluminous, the complainant may be required to specify
those which he intends to present against the respondent,
and these shall be made available for examination or
copying by the respondent at his expense,
Objects as evidence need not be furnished a party but shall
be made available for examination, copying or
photographing at the expense of the requesting party.126
Section 6 (a), Rule 34 of the Comelec Rules of Procedure
also grants the respondent such right of examination, to wit:
Sec. 6. Conduct of preliminary investigation. – (a) If on the
basis of the complaint, affidavits and other supporting
evidence, the investigating officer finds no ground to
continue with the inquiry, he shall recommend the dismissal
of the complaint and shall follow the procedure prescribed in
Sec. 8 (c) of this Rule. Otherwise, he shall issue a subpoena
to the respondent, attaching thereto a copy of the complaint,
affidavits and other supporting documents giving said
respondent ten (10) days from receipt within which to submit
counter-affidavits and other supporting documents. The
respondent shall have the right to examine all other
evidence submitted by the complainant.127
Clearly from the above-quoted provisions, the subpoena
issued against respondent therein should be accompanied
by a copy of the complaint and the supporting affidavits and
documents. GMA also has the right to examine documents
but such right of examination is limited only to the
documents or evidence submitted by the complainants
(Senator Pimentel and the Fact-Finding Team) which she
may not have been furnished and to copy them at her
expense.
While it is true that Senator Pimentel referred to certain
election documents which served as bases in the allegations
of significant findings specific to the protested municipalities
involved, there were no annexes or attachments to the
complaint filed.128 As stated in the Joint Committee’s Order
dated November 15, 2011 denying GMA’s Omnibus Motion
Ad Cautelam, Senator Pimentel was ordered to furnish
petitioners with all the supporting evidence129 However,
Senator Pimentel manifested that he was adopting all the
affidavits attached to the Fact-Finding Team’s Initial
Report.130Therefore, when GMA was furnished with the
documents attached to the Initial Report, she was already
granted the right to examine as guaranteed by the Comelec
Rules of Procedure and the Rules on Criminal Procedure.
Those were the only documents submitted by the
complainants to the Committee. If there are other
documents that were referred to in Senator Pimentel’s
complaint but were not submitted to the Joint Committee,
the latter considered those documents unnecessary at that
point (without foreclosing the relevance of other evidence
that may later be presented during the trial)131 as the
evidence submitted before it were considered adequate to
find probable cause against her.132 Anyway, the failure of the
complainant to submit documents supporting his allegations
in the complaint may only weaken his claims and eventually
works for the benefit of the respondent as these merely are
allegations unsupported by independent evidence.
We must, however, emphasize at this point that during the
preliminary investigation, the complainants are not obliged
to prove their cause beyond reasonable doubt. It would be
unfair to expect them to present the entire evidence needed
to secure the conviction of the accused prior to the filing of
information.133 A preliminary investigation is not the occasion
for the full and exhaustive display of the parties’ respective
evidence but the presentation only of such evidence as may
engender a well-grounded belief that an offense has been
committed and that the accused is probably guilty thereof
and should be held for trial.134 Precisely there is a trial to
allow the reception of evidence for the prosecution in
support of the charge.135
With the denial of GMA’s motion to be furnished with and
examine the documents referred to in Senator Pimentel’s
complaint, GMA’s motion to extend the filing of her counter-
affidavit and countervailing evidence was consequently
denied. Indeed, considering the nature of the crime for
which GMA was subjected to preliminary investigation and
the documents attached to the complaint, it is incumbent
upon the Joint Committee to afford her ample time to
examine the documents submitted to the Joint Committee in
order that she would be able to prepare her counter-
affidavit. She cannot, however, insist to examine documents
not in the possession and custody of the Joint Committee
nor submitted by the complainants. Otherwise, it might
cause undue and unnecessary delay in the disposition of the
cases. This undue delay might result in the violation of the
right to a speedy disposition of cases as enshrined in
Section 16, Article III of the Constitution which states that
"all persons shall have the right to a speedy disposition of
their cases before all judicial, quasi-judicial, or administrative
bodies." The constitutional right to speedy disposition of
cases is not limited to the accused in criminal proceedings
but extends to all parties in all cases, including civil and
administrative cases, and in all proceedings, including
judicial and quasi-judicial hearings.136 Any party to a case
has the right to demand on all officials tasked with the
administration of justice to expedite its disposition.137 Society
has a particular interest in bringing swift prosecutions, and
the society’s representatives are the ones who should
protect that interest.138
Even assuming for the sake of argument that the denial of
GMA’s motion to be furnished with and examine the
documents referred to in Senator Pimentel’s complaint
carried with it the denial to extend the filing of her counter-
affidavit and other countervailing evidence rendering the
preliminary investigation irregular, such irregularity would
not divest the RTC of jurisdiction over the case and would
not nullify the warrant of arrest issued in connection
therewith, considering that Informations had already been
filed against petitioners, except Mike Arroyo. This would only
compel us to suspend the proceedings in the RTC and
remand the case to the Joint Committee so that GMA could
submit her counter-affidavit and other countervailing
evidence if she still opts to. However, to do so would hold
back the progress of the case which is anathema to the
accused’s right to speedy disposition of cases.
It is well settled that the absence or irregularity of
preliminary investigation does not affect the court’s
jurisdiction over the case. Nor does it impair the validity of
the criminal information or render it defective. Dismissal is
not the remedy.139Neither is it a ground to quash the
information or nullify the order of arrest issued against the
accused or justify the release of the accused from
detention.140 The proper course of action that should be
taken is to hold in abeyance the proceedings upon such
information and to remand the case for the conduct of
preliminary investigation.141
In the landmark cases of Cojuangco, Jr. v. Presidential
Commission on Good Government (PCGG)142 and Allado v.
Diokno,143 we dismissed the criminal cases and set aside
the informations and warrants of arrest. In Cojuangco, we
dismissed the criminal case because the information was
filed by the PCGG which we declared to be unauthorized to
conduct the preliminary investigation and, consequently, file
the information as it did not possess the cold neutrality of an
impartial judge. In Allado, we set aside the warrant of arrest
issued against petitioners therein and enjoined the trial court
from proceeding further for lack of probable cause. For one,
there was serious doubt on the reported death of the victim
in that case since the corpus delicti had not been
established nor had his remains been recovered;and based
on the evidence submitted, there was nothing to incriminate
petitioners therein. In this case, we cannot reach the same
conclusion because the Information filed before the RTC of
Pasay City was filed by the Comelec en banc which had the
authority to file the information for electoral sabotage and
because the presence or absence of probable cause is not
an issue herein. As can be gleaned from their assignment of
errors/issues, petitioners did not question the finding of
probable cause in any of their supplemental petitions. It was
only in GMA’s memorandum where she belatedly included a
discussion on the "insufficiency" of the evidence supporting
the finding of probable cause for the filing of the Information
for electoral sabotage against her.144 A closer look at her
arguments, however, would show that they were included
only to highlight the necessity of examining the election
documents GMA requested to see before she could file her
counter-affidavit. At any rate, since GMA failed to submit her
counter-affidavit and other countervailing evidence within
the period required by the Joint Committee, we cannot
excuse her from non-compliance.
There might have been overzealousness on the part of the
Joint Committee in terminating the investigation, endorsing
the Joint Resolution to the Comelec for approval, and in
filing the information in court. However, speed in the conduct
of proceedings by a judicial or quasi-judicial officer cannot
per se be instantly attributed to an injudicious performance
of functions.145 The orderly administration of justice remains
the paramount consideration with particular regard to the
peculiar circumstances of each case.146 To be sure,
petitioners were given the opportunity to present
countervailing evidence. Instead of complying with the Joint
Committee’s directive, several motions were filed but were
denied by the Joint Committee. Consequently, petitioners’
right to submit counter-affidavit and countervailing evidence
was forfeited. Taking into account the constitutional right to
speedy disposition of cases and following the procedures
set forth in the Rules on Criminal Procedure and the
Comelec Rules of Procedure, the Joint Committee finally
reached its conclusion and referred the case to the
Comelec. The latter, in turn, performed its task and filed the
information in court. Indeed, petitioners were given the
opportunity to be heard. They even actively participated in
the proceedings and in fact filed several motions before the
Joint Committee. Consistent with the constitutional mandate
of speedy disposition of cases, unnecessary delays should
be avoided.
Finally, we take judicial notice that on February 23, 2012,
GMA was already arraigned and entered a plea of "not
guilty" to the charge against her and thereafter filed a Motion
for Bail which has been granted. Considering that the
constitutionality of the creation of the Joint Panel is
sustained, the actions of the Joint Committee and Fact-
Finding Team are valid and effective. As the information was
filed by the Commission authorized to do so, its validity is
sustained. Thus, we consider said entry of plea and the
Petition for Bail waiver on the part of GMA of her right to
submit counter-affidavit and countervailing evidence before
the Joint Committee, and recognition of the validity of the
information against her. Her act indicates that she opts to
avail of judicial remedies instead of the executive remedy of
going back to the Joint Committee for the submission of the
counter-affidavit and countervailing evidence. Besides, as
discussed earlier, the absence or irregularity of preliminary
investigation does not affect the court’s jurisdiction over the
case nor does it impair the validity of the criminal information
or render it defective.
It must be stressed, however, that this supervening event
does not render the cases before the Court moot and
academic as the main issues raised by petitioners are the
constitutionality of the creation of the Joint Committee and
the Fact-Finding Team and the validity of the proceedings
undertaken pursuant to their respective mandates.
The Court notes that the Joint Committee and the Comelec
have not disposed of the cases of the other respondents
subjects of the preliminary investigation as some of them
were subjected to further investigation. In order to remove
the cloud of doubt that pervades that petitioners are being
singled out, it is to the best interest of all the parties
concerned that the Joint Committee and the Comelec
terminate the proceedings as to the other respondents
therein and not make a piecemeal disposition of the cases.
A peripheral issue which nonetheless deserves our attention
is the question about the credibility of the Comelec brought
about by the alleged professional relationship between
Comelec Chairman Brillantes on one hand and the
complainant Senator Pimentel and Fernando Poe, Jr. (FPJ),
GMA’s rival in the 2004 elections, on the other hand; and by
the other Commissioners’147 reasons for their partial
inhibition. To be sure, Chairman Brillantes’ relationship with
FPJ and Senator Pimentel is not one of the grounds for the
mandatory disqualification of a Commissioner. At its most
expansive, it may be considered a ground for voluntary
inhibition which is indeed discretionary as the same was
primarily a matter of conscience and sound discretion on the
part of the Commissioner judge based on his or her rational
and logical assessment of the case.148 Bare allegations of
bias and prejudice are not enough in the absence of clear
and convincing evidence to overcome the presumption that
a judge will undertake his noble role to dispense justice
according to law and evidence without fear or favor.149 It
being discretionary and since Commissioner Brillantes was
in the best position to determine whether or not there was a
need to inhibit from the case, his decision to participate in
the proceedings, in view of higher interest of justice, equity
and public interest, should be respected. While a party has
the right to seek the inhibition or disqualification of a judge
(or prosecutor or Commissioner) who does not appear to be
wholly free, disinterested, impartial, and independent in
handling the case, this right must be weighed with his duty
to decide cases without fear of repression.150
Indeed, in Javier v. Comelec,151 the Court set aside the
Comelec’s decision against Javier when it was disclosed
that one of the Commissioners who had decided the case
was a law partner of Javier’s opponent and who had refused
to excuse himself from hearing the case. Javier, however, is
not applicable in this case. First, the cited case involves the
Comelec’s exercise of its adjudicatory function as it was
called upon to resolve the propriety of the proclamation of
the winner in the May 1984 elections for Batasang
Pambansa of Antique. Clearly, the grounds for
inhibition/disqualification were applicable. Second, the case
arose at the time where the purity of suffrage has been
defiled and the popular will scorned through the
confabulation of those in authority.152 In other words, the
controversy arose at the time when the public confidence in
the Comelec was practically nil because of its transparent
bias in favor of the administration.153Lastly, in determining
the propriety of the decision rendered by the Comelec, the
Court took into consideration not only the relationship (being
former partners in the law firm) between private respondents
therein, Arturo F. Pacificador, and then Comelec
Commissioner Jaime Opinion (Commissioner Opinion) but
also the general attitude of the Comelec toward the party in
power at that time. Moreover, the questioned Comelec
decision was rendered only by a division of the Comelec.
The Court thus concluded in Javier that Commissioner
Opinion’s refusal to inhibit himself divested the Comelec’s
Second Division of the necessary vote for the questioned
decision and rendered the proceedings null and void.154
On the contrary, the present case involves only the conduct
of preliminary investigation and the questioned resolution is
an act of the Comelec En Banc where all the
Commissioners participated and more than a majority (even
if Chairman Brillantes is excluded) voted in favor of the
assailed Comelec resolution. Unlike in 1986, public
confidence in the Comelec remains. The Commissioners
have already taken their positions in light of the claim of
"bias and partiality" and the causes of their partial inhibition.
Their positions should be respected confident that in doing
so, they had the end in view of ensuring that the credibility of
the Commission is not seriously affected.
To recapitulate, we find and so hold that petitioners failed to
establish any constitutional or legal impediment to the
creation of the Joint DOJ-Comelec Preliminary Investigation
Committee and Fact-Finding Team.
First, while GMA and Mike Arroyo were among those
subjected to preliminary investigation, not all respondents
therein were linked to GMA; thus, Joint Order No. 001-2011
does not violate the equal protection clause of the
Constitution.
Second, the due process clause is likewise not infringed
upon by the alleged prejudgment of the case as petitioners
failed to prove that the Joint Panel itself showed such bias
and partiality against them. Neither was it shown that the
Justice Secretary herself actually intervened in the conduct
of the preliminary investigation. More importantly,
considering that the Comelec is a collegial body, the
perceived prejudgment of Chairman Brillantes as head of
the Comelec cannot be considered an act of the body itself.
Third, the assailed Joint Order did not create new offices
because the Joint Committee and Fact-Finding Team
perform functions that they already perform by virtue of the
Constitution, the statutes, and the Rules of Court.1âwphi1
Fourth, in acting jointly with the DOJ, the Comelec cannot
be considered to have abdicated its independence in favor
of the executive branch of government. Resolution No. 9266
was validly issued by the Comelec as a means to fulfill its
duty of ensuring the prompt investigation and prosecution of
election offenses as an adjunct of its mandate of ensuring a
free, orderly, honest, peaceful, and credible elections. The
role of the DOJ in the conduct of preliminary investigation of
election offenses has long been recognized by the Comelec
because of its lack of funds and legal officers to conduct
investigations and to prosecute such cases on its own. This
is especially true after R.A. No. 9369 vested in the Comelec
and the DOJ the concurrent jurisdiction to conduct
preliminary investigation of all election offenses. While we
uphold the validity of Comelec Resolution No. 9266 and
Joint Order No. 001-2011, we declare the Joint Committee’s
Rules of Procedure infirm for failure to comply with the
publication requirement. Consequently, Rule 112 of the
Rules on Criminal Procedure and the 1993 Comelec Rules
of Procedure govern.
Fifth, petitioners were given the opportunity to be heard.
They were furnished a copy of the complaint, the affidavits,
and other supporting documents submitted to the Joint
Committee and they were required to submit their counter-
affidavit and countervailing evidence. As to petitioners Mike
Arroyo and Abalos, the pendency of the cases before the
Court does not automatically suspend the proceedings
before the Joint Committee nor excuse them from their
failure to file the required counter-affidavits. With the
foregoing disquisitions, we find no reason to nullify the
proceedings undertaken by the Joint Committee and the
Comelec in the electoral sabotage cases against petitioners.
WHEREFORE, premises considered, the petitions and
supplemental petitions are DISMISSED. Comelec
Resolution No. 9266 dated August 2, 2011, Joint Order No.
001-2011 dated August 15, 2011, and the Fact-Finding
Team’s Initial Report dated October 20, 2011, are declared
VALID. However, the Rules of Procedure on the Conduct of
Preliminary Investigation on the Alleged Election Fraud in
the 2004 and 2007 National Elections is declared
INEFFECTIVE for lack of publication.
In view of the constitutionality of the Joint Panel and the
proceedings having been conducted in accordance with
Rule 112 of the Rules on Criminal Procedure and Rule 34 of
the Comelec Rules of Procedure, the conduct of the
preliminary investigation is hereby declared VALID.
Let the proceedings in the Regional Trial Court of Pasay
City, Branch 112, where the criminal cases for electoral
sabotage against petitioners GMA and Abalos are pending,
proceed with dispatch.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice