Questions properly cognizable in an election protest 3.
3. Under date of 29 January 1988, PENAFLORIDA and the Lakas filed with the COMELEC an
G.R. No. 86362-63 October 27, 1989
RAMON D. DUREMDES, petitioner,
vs.
COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF ILOILO, LAKAS NG
BANSA and CIPRIANO B. PENAFLORIDA, respondents.
Panganiban, Benitez, Barinaga & Bautista Law Offices, Lead Counsel for petitioner.
Nery D. Duremdes Co-counsel for petitioner.
Brillantes, Nachura, Navarro & Arcilla Law Offices for private respondent.
MELENCIO-HERRERA, J.:
At stake in this election controversy is the Vice-gubernatorial position of the Province of
Iloilo.
The chronology of the facts and of the case follows:
1. In the 18 January 1988 elections, petitioner Ramon D. DUREMDES, private respondent
Cipriano B. PENAFLORIDA, and Rufino Palabrica ran for the office of Vice-Governor of the
Province of Iloilo.
DUREMDES was the official candidate of the Liberal Party (LP) and PDP-Laban coalition,
while PENAFLORIDA was the official candidate of the Lakas ng Bansa (Lakas).
2. During the canvass of votes by the Provincial Board of Canvassers of Iloilo, which lasted
from 20 January to 31 January 1988, PENAFLORIDA objected verbally to some 110 election
returns from various precincts, which he followed up with written objections. The Board
overruled the same in separate Orders either because they were not timely filed or that the
formal defects did not affect the genuineness of the returns, or that in case of allegations of
tampering, no evidence was presented to support the charge. The Board thus ordered the
inclusion of the questioned election returns. This was reflected in a separate column under
the heading "Contested/Deferred Votes" in the "Certificate of Votes of Candidates" (Form
No. 13A, Annex "K," Petition, p. 60 Rollo).
"Appeal by Way of a Petition for Review," from the aforesaid rulings of the Board pleading,
among others, for the exclusion of the questioned election returns and for PENAFLORIDA's
proclamation as the elected Vice-Governor of Iloilo (Annex "L," Ibid., p. 62, Rollo).
4. On 30 January 1988, PENAFLORIDA filed, also with the COMELEC, a Petition seeking the
annulment of election returns and the suspension of the proclamation of any candidate ,
docketed as SPC Case No. 88-448 (Annex "Q," Ibid., p. 96, Rollo).
5. On 31 January 1988, in a "Certification of Canvass of Votes and Proclamation of the
Winning Candidates for Provincial Offices" (Form No. 26, Annex "N," Ibid., p. 84, Rollo), the
Board proclaimed DUREMDES as the duly elected Vice- Governor, together with the duly
elected Governor and only eight (8) members of the Sangguniang Panlalawigan of Iloilo.
Certified to was that DUREMDES had garnered 157,361 votes (the number of his
uncontested votes) in 2,377 precincts.
Apparently, the Board had made the proclamation upon DUREMDES' "Manifestation and
Motion," dated the same day, 31 January 1988, that "the contested returns will not
adversely affect the uncontested results of the election (See Section 245, Omnibus Election
Code) ... because of the absolute certainty that candidate Ramon Duremdes has obtained
the highest number of votes, whether or not the contested votes were excluded."
6. The tabulated data in the Certificate of Votes of Candidates (Annex "K," Petition) is
reproduced below in so far as the protagonists herein are concerned, with the totals and/or
remainders supplied by us:
Non-Contested
Contested/
Grand
Deferred
Total 8. On 12 February 1988, Perla S. Zulueta (also an Intervenor in SPC Case No. 88-448), filed
SPC Case No. 88-653 pleading that she be proclaimed as one of the winning candidates in
the 10-member Iloilo Sangguniang Panlalawigan.

9. On 8 March 1988, PENAFLORIDA filed an Amended Petition challenging, in addition, the

legality of the composition of the Provincial Board of Canvassers, "a ground just known
Votes lately," and praying for a recanvassing of the objected election returns.

10. On 4 April 1988, the COMELEC granted a Motion for the consolidation of SPC Case No.
88-653 with SPC Case No. 88-448.
DUREMDES
11. On 20 June 1988, PENAFLORIDA filed with the COMELEC a Supplemental Petition ('in
157,361 amplification of the Amended petition for verification and correction") charging, among
others, that DUREMDES was proclaimed "on the basis of increased votes in the unofficial
13,373 and separately tallied Statement of Votes, more than what was actually reflected in the
Election Returns."
171,734
12. On 20 September 1988, the COMELEC (Second Division), after hearing, issued a Per
PENAFLORIDA Curiam Resolution, sustaining the rulings of the Board of Canvassers on PENAFLORIDA's
objections as well as DUREMDES' proclamation. The decretal portion of that Resolution
150,075 reads:

+ 4,427 WHEREFORE, IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered:

-154,602 1. Sustaining and affirming the rulings of the Provincial Board of Canvassers of Iloilo on the
objections interposed by petitioner on the inclusion in the canvass of the questioned
returns;

7,286 2. Sustaining the proclamation of the winning candidate for Vice- Governor;

17,800
17,232
6. On 2 February 1988, DUREMDES took his oath and assumed office (Annex "O," Ibid.).
7. Also on 2 February 1988, an "Intervention with Motion to Dismiss" was filed by
DUREMDES and two other candidates for the Sangguniang Panlalawigan, seeking the denial
of PENAFLORIDA's Petition for Annulment before the COMELEC, for lack of merit.
3. Directing the Provincial Board of Canvassers to immediately reconvene and to include in
the canvass the questioned election returns; and thereafter to proclaim the winning
candidates for the Ninth (9th) and Tenth (10th) slots for the Sangguniang Panlalawigan of
the Province of Iloilo; and
4. Directing the Law Department of the Commission to conduct a thorough investigation
into the matter of the reported falsification of the transcripts of the stenographic notes of
Stenographer Nelly C. Escana to determine the parties responsible therefor and to cause the
filing of the necessary criminal complaint against those probably guilty thereof as the
evidence may warrant, and if the assistance of the National Bureau of Investigation or any
other investigative arm of the Government for that purpose is necessary, to request for such
assistance.
No pronouncement as to costs. (pp. 137-138, Rollo) (Italics ours).
13. On 27 September 1988, PENAFLORIDA moved for reconsideration, whereupon, the
Second Division certified and elevated the case to the COMELEC en banc.
14. On 4 October 1988, PENAFLORIDA filed a Motion to Suspend Implementation of the
Second Division Resolution of 20 September 1988 pending resolution of his Motion for
Reconsideration, which suspension was granted by the COMELEC on 5 October 1988.
15. In the meantime, on 10 December 1988, the Board reconvened for the purpose of
proclaiming the 9th and 10th placers for the Sangguniang Panlalawigan of Iloilo. It was at
the scheduled promulgation of 15 December 1988 that the Chairman of the Board openly
admitted the existence of discrepancies between the entries of votes in the Statement of
Votes and the votes reflected in the questioned election returns (P. 6, COMELEC en banc
Decision).
16. On 12 January 1989, the COMELEC en banc rendered the assailed Per Curiam Decision
with the following disposition:
WHEREFORE, IN THE LIGHT OF ALL THE FOREGOING, judgment is hereby rendered:
1. Affirming the following parts of the dispositive portion of the Resolution of the Second
Division promulgated on 20 September 1988:
1. Sustaining and affirming the rulings of the Provincial Board of Canvassers of Iloilo on the
objections interposed by petitioner on the inclusion in the canvass of the questioned
returns.
2. Directing the Provincial Board of Canvassers to immediately reconvene and to include in
the canvass the questioned election returns and thereafter to proclaim the winning
candidates for the Ninth (9th) and Tenth (10th) slots for the Sangguniang Panlalawigan of
the Province of Iloilo; and
3. Directing the Law Department of the Commission to conduct a thorough investigation
into the matter of the reported falsification of the transcripts of the stenographic notes of
Stenographer Nelly Escana to determine the parties responsible therefor and to cause the
fling of the necessary criminal complaint against those probably guilty thereof as the
evidence may warrant, and if the assistance of the National Bureau of Investigation or any
other investigative arm of the Government for that purpose is necessary, to request for such
assistance.
2. Reversing that part of the dispositive portion which reads:
2. Sustaining the proclamation of the winning candidate for Vice- Governor and setting aside
the proclamation of Intervenor Ramon Duremdes as Vice-Governor of Iloilo.
3. Declaring as null and void the proclamation of Intervenor Ramon Duremdes;
4. Directing the Provincial Board of Canvassers of Iloilo to immediately reconvene and to
include in the canvass of votes for Vice-Governor the questioned/contested returns. For that
purpose, the Board shall make a formal tabulation of the results of the contested returns
and shall prepare a new Statement of Votes and Certificate of Canvass; and
5. Directing the Provincial Board of Canvassers to thereafter proclaim the winning candidate
for Vice-Governor of Iloilo (pp. 38-40, Rollo). (Italics ours)
His proclamation having been nullified by the COMELEC, DUREMDES avails of this recourse.
On 17 January 1989, the Court ordered that the status quo existing prior to the
promulgation of the above COMELEC en banc Decision be maintained until further orders.
DUREMDES faults the COMELEC with grave abuse of discretion for having disregarded the
well-settled doctrines (1) that matters of protest, objections or issues not originally raised
before the Board of Canvassers upon the opening of the returns, cannot be raised for the
first time before the COMELEC; and (2) that after a proclamation has been made, a pre-
proclamation controversy is no longer viable, the proper recourse, being an election protest.
It is true that, before the Board of Canvassers, PENAFLORIDA did not raise in issue the
matter of the discrepancies between the number of votes appearing in the Statement of
Votes and that in the Election Returns. As a matter of fact that matter is not even listed as
one of the issues that may be raised in pre-proclamation controversies under Section 243 of
the Omnibus Election Code.1
Nonetheless, as aptly stated in the assailed COMELEC en banc Decision:
Indeed, errors in the Statement of Votes do not indubitably appear to be issues that may be
raised in a pre-proclamation controversy under Section 243 of the Omnibus Election Code.
In this respect, the law is silent as to when the same may be raised. We are, however, not
unmindful of the fact that the statement of votes supports the certificate of canvass and
shall be the basis of proclamation (Sec. 231, paragraph 2). Consequently, any error in the
Statement of Votes would affect the proclamation made on the basis thereof. The true will
of the electorate may thus be not fully and faithfully reflected by the proclamation (at pp. 7-
8).
We find no grave abuse of discretion in the foregoing COMELEC pronouncement. The
Statement of Votes is a tabulation per precinct of the votes garnered by the candidates as
reflected in the election returns. Its preparation is an administrative function of the Board of
Canvassers. As pointed out by the Solicitor General, "it is a purely mechanical act of the
Board of Canvassers in the performance of which the Commission has direct control and
supervision," pursuant to Section 227 of the Omnibus Election Code.
Sec. 227. Supervision and control over board of canvassers. — The Commission shall have
direct control and supervision over the board of canvassers.
xxx xxx xxx
By virtue of that power, added to its overall function to "decide all questions affecting
elections" (Article IX[C] Section 2[3], 1987 Constitution), a question pertaining to the
proceedings of said Board may be raised directly with the COMELEC as a pre-proclamation
controversy.
Sec. 241. Definition. — A pre-proclamation controversy refers to any question pertaining to
or affecting the proceedings of the board of canvassers which may be raised by any
candidate or by any registered political party or coalition of political parties before the
board or directy with the Commission, or any matter raised under Sections 233, 234, 235
and 236 in relation to the exploration, transmission, receipt, custody and appreciation of the
election returns (Omnibus Election Code). (Italics supplied).
When so elevated, the COMELEC acts in the exercise of its original jurisdiction for which
reason it is not indispensable that the issue be raised before the Board of Canvassers during
the canvassing. The COMELEC is not discharging its appellate jurisdiction under Section 245
of the Omnibus Election Code, which has to do with contests regarding the inclusion or
exclusion in the canvass of any election returns, with a prescribed appellate procedure to
follow.2
Cognizance may also be taken of the fact that at the time PENAFLORIDA filed the
Supplemental Petition on 20 June 1988, there was no clear-cut rule on the matter. It was
only in the COMELEC Rules of Procedure, which took effect on 15 November 1988, wherein
it was provided under subparagraph (2), paragraph (a), Section 4 of Rule 27, that the matter
of correction of the statement of votes may be the subject of a pre-proclamation case which
may be filed directly with the Commission. Nonetheless, there should be no question,
considering the aforequoted Section 241 in relation to Section 227 of the Omnibus Election
Code, that the issue is one that can be raised directly with the COMELEC. It is a procedure
that best recommends itself specially considering that the Statement of Votes is a vital
component in the electoral process. It supports the Certificate of Canvass and is the basis for
proclamation.
SEC. 231. Canvass by the board. —
xxx xxx xxx
The respective board of canvassers shall prepare a certificate of canvass duly signed and
affixed with the imprint of the thumb of the right hand of each member, supported by a
statement of the votes received by each candidate in each polling place and, on the basis
thereof, shall proclaim as elected the candidates who obtained the highest number of votes
cast in the province, city, municipality or barangay. Failure to comply with this requirement
shall constitute an election offense.
xxx xxx xxx
DUREMDES also calls attention to Rule 13, Section 1 (g) of the COMELEC Rules of Procedure,
which does not allow the filing of supplemental pleadings. As stated heretofore, however,
these Rules took effect only on 15 November 1988, or five months after the Supplemental
Petition was filed. Said rule, therefore, cannot be given retroactive effect the legal truth
being that laws of procedure may be retroactively applied provided no substantial rights are
impaired (Bernardo vs. Court of Appeals, G.R. No. 30821, December 14,1988).
That discrepancies exist between the entries in the Statement of Votes and that reflected in
the questioned election returns, was openly admitted by the Chairman of the Board of
Canvassers at the scheduled promulgation on 15 December 1988 of the 9th and 10th placers
of the Sangguniang Panlalawigan (p. 6, COMELEC Decision). What is more, it is also admitted
by the parties except that PENAFLORIDA assails the correctness of the Statement of Votes,
while DUREMDES maintains its correctness but avers the possibility of the tampering of the
questioned election returns (p. 7, Ibid.).
Under the circumstances, therefore, and considering that any error in the Statement of
Votes would affect the proclamation made on the basis thereof, and primordially, in order
to determine the true will of the electorate, the COMELEC Decision ordering the Board of
Canvassers to reconvene and prepare a new Statement of Votes and Certificate of Canvass
should be upheld.
The Commission on Elections has ample power to see to it that elections are held in a clean
and orderly manner and it may decide all questions affecting the elections. It has original
jurisdiction on all matters relating to election returns, including the verification of the
number of votes received by opposing candidates in the election returns as compared to the
statement of votes in order to insure that the true will of the people is known. Such clerical
error in the statement of votes can be ordered corrected by the COMELEC (Villaroya vs.
Comelec, L-79646- 47,13 November 1987,155 SCRA 633).
It is DUREMDES' further submission that his proclamation could not be declared null and
void because a pre-proclamation controversy is not proper after a proclamation has been
made, the proper recourse being an election protest. This is on the assumption, however,
that there has been a valid proclamation. Where a proclamation is null and void, the
proclamation is no proclamation at all and the proclaimed candidate's assumption of office
cannot deprive the COMELEC of the power to declare such nullity and annul the
proclamation (Aguam vs. COMELEC, L- 28955, 28 May 1968, 23 SCRA 883).
DUREMDES' proclamation must be deemed to have been null and void. It was made on 31
January 1988 after PENAFLORIDA had filed with the COMELEC on 29 January 1988 an
"Appeal by Way of a Petition for Review" from the rulings of the Board, and on 30 January
1988, a Petition for the annulment of' election returns and the suspension of the
proclamation of any candidate (SPC Case No. 88-448). The COMELEC had not resolved either
Petition at the time the proclamation was made. Pursuant to Sections 245, supra, and 238 of
the Omnibus Election Code, therefore, the Board of Canvassers should not have proclaimed
any candidate without waiting for the authorization by the COMELEC. Any proclamation
thus made is void ab initio.
SEC. 238. Canvass of remaining or unquestioned returns to continue. — In cases under
Sections 233, 234, 235 and 236 hereof, the board of canvassers shall continue the canvass of
the remaining or unquestioned election returns. If, after the canvass of all the said returns, it
should be determined that the returns which have been set aside will affect the result of the
election, no proclamation shall be made except upon orders of the Commission after due
notice and hearing. Any proclamation made in violation hereof shall be null and void.
In this case, with 110 contested election returns and 25,930 ballots questioned (COMELEC
Resolution, September 20,1988, p. 4, p. 115, Rollo), DUREMDES' margin of 7,286 non-
contested votes could very well be off-set.
Moreover, DUREMDES' proclamation was made on the basis of an official canvass of the
votes cast in 2,377 precincts only (Annex "N," Petition), when there were actually 2,487
precincts. The votes in 110 precincts, therefore, were not included, which is exactly the
number of 110 election returns questioned by PENAFLORIDA. Further, DUREMDES was
certified to have garnered 157,361 votes (ibid.), which number represents the non-
contested votes only, and clearly excludes the totality of the "contested/deferred votes" of
the candidates concerned.
DUREMDES' proclamation having been based on an incomplete canvass, no grave abuse of
discretion can be ascribed to the COMELEC for directing the Provincial Board of Canvassers
of Iloilo "to immediately reconvene and to include in the canvass of votes for Vice-Governor
the questioned/contested returns." All the votes cast in an election must be considered
because to disregard returns is in effect to disenfranchise the voters (Mutuc vs. COMELEC, L-
28517, February 21, 1968, 22 SCRA 662). A canvass can not be reflective of the true vote of
the electorate unless all returns are considered and none is omitted (Datu Sinsuat vs.
Pendatun, L-31501, June 30, 1970, 33 SCRA 630).
Over and above all else, the determination of the true will of the electorate should be the
paramount consideration.
Election contests involve public interest. Technicalities and procedural barriers should not
be allowed to stand if they constitute an obstacle to the determination of the true will of the
electorate in the choice of their elective officials ... Laws governing election contests must
be liberally construed to the end that the will of the people in the choice of public officials
may not be defeated by mere technical objections. In an election case the court has an
imperative duty to ascertain by all means within its command who is the real candidate
elected by the electorate" (Juliano vs. CA and Sinsuat, 20 SCRA 808, 818-19, July 28,1967).
WHEREFORE, absent any grave abuse of discretion on the part of respondent Commission
on Elections, this Petition for certiorari is hereby DISMISSED. The status quo Order
heretofore issued is hereby ordered LIFTED. No costs.
SO ORDERED.
Questions properly cognizable in an election protest
G.R. No. 86117 May 7, 1990
DIMANGADAP DIPATUAN, petitioner,
vs.
THE COMMISSION ON ELECTIONS, ALEEM HOSAIN AMANODDIN, ALEEM ABBAS
MOHAMMAD HABIB, HADJI SALIC IMAM, IBRA P. BALI, MAMENTAL NAGA, CADAR G.
USMAN, MAGAUNDAR AMEROL, ALI MANGANDA, HOSARI ALOYOD, YUNOS MALIK,
respondents.
Pedro Q. Quadra for petitioner.
Ariraya P. Corot, Linang D. Mandangan, Mangorsi A. Mindalano and Tingaraan Bangkero for
private respondents.
RESOLUTION
Petitioner Dimangadap Dipatuan asks us to set aside the decision dated 8 November 1988 of
the respondent Commission on Elections (Comelec) Second Division which ordered the
inclusion of election returns from two (2) precincts (Precincts Nos. 15 and 17) of the
Municipality of Bacolod Grande, Province of Lanao del Sur, in the canvass of votes cast in
the 1988 local elections, as well as the decision of the Comelec En Banc dated 22 December
1988, affirming the decision of the Comelec Second Division.
Petitioner Dipatuan and private respondent Aleem Hosain Amanoddin were candidates for
Mayor of Bacolod Grande in the 1 February 1988 special local elections in Lanao del Sur. The
other private respondents were candidates for Vice-Mayor and Councilors in the same
municipality.
On 21 February 1988, the Municipal Board of Canvassers of Bacolod Grande, chaired by
Samuel Minalang, finished canvassing the votes but did not proclaim the winning
candidates. It did so on 29 February 1988, when private respondent Amanoddin was
proclaimed winner and elected Mayor.
Earlier, on 25 February 1988, petitioner Dipatuan was proclaimed Mayor by a separate
Board of Canvassers headed by one Mamacaog Manggray, after the said Board had excluded
the election returns from Precincts Nos. 15, 17 and 21 from its canvass.
The Comelec En Banc set aside both (a) the proclamation made by the Minalang Board for
being premature, the candidates not having been given the opportunity to appeal, and (b)
the proclamation by the Manggray Board on the ground that the latter Board had not been
properly constituted. A Special Board of Canvassers ("Special Board") was therefore
convened in Manila by the Comelec to recanvass the election returns from Bacolod Grande,
Lanao del Sur.
On 21 June 1988, during the recanvass, petitioner objected to the inclusion of the election
returns from Precincts Nos. 15 and 17, contending that the returns from the two (2)
precincts were spurious and manufactured". In this connection, petitioner seasonable
converted his oral objection into written form and submitted certified copies of the voting
records and voter's affidavits and affidavits of witnesses. The petitioner claimed that the
questioned returns were "obviously manufactured" within the eaning of Section 243 (c) of
the Omnibus Election Code and that therefore a pre-proclamation controversy existed
which must be resolved before proclamation of the winning candidates Petitioner
contended the following irregularities had attended at the Bacolod Grande local elections:
1. In Precinct No. 15. of the 248 persons who actually voted, 187 arrived in the precinct and
voted, according to the voting list, precisely in alphabetical and chronological order; of the
187 voters who voted in alphabetical and chronological order, 811 were illiterates as
reflected in their respective voter's affidavits,. but had suddenly learned how to write their
names in the voting list; many persons whose faces were covered by veils were allowed to
vote without their identities being verified.
2. In Precinct No. 17, 93 voters are listed as having voted in alphabetical and chronological
order, i.e., in the precise sequence of their listing in the voting records: 45 illiterate voters
suddenly learned to write their names in the voting records; many persons with their faces
covered were allowed to vote without confirmation of their identities.
3. In both Precincts Nos. 15 and 17, there were discrepancies between the signatures of
voters appearing in the voter's affidavits and the signatures appearing in the voting record;
and members of the Boards of Election Inspectors falsified the voting records by making it
appear that many or most of the registered voters had voted when in fact they had not.
The Special Board denied petitioner's objections and ordered the inclusion of the
questioned returns from Precincts Nos. 15 and 17 in the canvass.
On appeal, the Comelec Second Division sustained the Special Board's action, dismissed
petitioner's appeal and ordered the Special trial Board to proclaim the winning candidates.
On 22 December 1988, the Comelec En Banc affirmed the decision of the Comelec Second
Division Land denied petitioner's Motion for Reconsideration.
Hence the instant Petition for Certiorari, filed on 23 December 1988, with prayer for a writ
of preliminary injunction or temporary restraining order to enjoy proclamation of private
respondent Amanoddin as elected Mayor of Bacolod Grande.
On 10 January 1989, the, Court. issued a Temporary Restraining Order requiring Comelec to
cease and desist from proclaiming private respondents as the duly elected municipal
officials of Bacolod Grande. It attorney out, however, that pursuant to the Comelec decision
of 22 December 1988 and upon notice to petitioner, the Special Board had on 28 December
1988 already proclaimed private respondent Amanoddin and the, other private respondents
as the elected Municipal Mayor and Councilors of Bacolod Grande.
The Court, acting on petitioner's Motion to Annul Proclamation and/or Suspend Effects of
Proclamation and on the Lanao del Sur Provincial Governor's Urgent Request for
Clarificatory Order, issued a Resolution on 2 February 1989 directing that, pending
resolution on the merit of the instant Petition for Certiorari, private respondent Amanoddin,
having been procIaimed Municipal Mayor on 28 December 1988, should be recognized as
such Mayor and authorized to discharge the functions and duties of that office.
The central issue here posed is whether or not the questioned returns from Precincts Nos.
15 and 17 in the Municipality of Bacolod Grande, Province of Lanao del Sur, were "obviously
manufactured" such that the propriety or legality of their inclusion in the canvass by the
Special Board presented a pre-proclamation controversy to be resolved before proclamation
of this writing candidates.
Both the Comelec Division and the Comelec En Banc, in sustaining the Special Board's action
ordering the inclusion of the questioned returns in the recanvass, held that the assailed
returns were not "obviously manufactured" such that petitioner's contentions had not
generated a pre-proclamation controversy and that petitioner's proper recourse was rather
the bringing of an election contest where his contentions in respect of the assailed returns
could be properly ventilated and examined in detail.
1. We start by noting that the Comelec (both Second Division and the Commission En Banc)
correctly emphasized that, under the regime of the Omnibus Election Code, pre-
proclamation controversies are properly limited to challenges directed against the Board of
Canvassers and proceedings before such Board of Canvassers, and not the Board of Election
Inspectors nor proceedings before such latter Board 1 and that such challenges should
relate to particular election returns to which petitioner should have made specific verbal
objection subsequently confirmed in writing. 2 In a pre-proclamation controversy it is
axiomatic that the Comelec is not to look beyond or behind election returns which are on
their face regular and authentic returns. A party seeking to raise issues resolution of which
would compel the Comelec to pierce the veil, so to speak, of election returns prima facie
regular, has his proper remedy in a regular election protest. By their nature, and given the
obvious public interest in the speedy determination of the results of elections, pre-
proclamation controversies are to be resolved in summary proceedings. 3 The delicate
policy equilibrium here involved was explained by the Court in the following terms in Alonto
v. Commission on Elections: 4
[P]re-proclamation controversies should be summarily decided, consistent with the law's
desire that the canvass and proclamation be delayed as little as possible . . . [and that the
Comelec and the courts should guard both against proclamation grabbing through tampered
returns as well as against attempts to paralyze canvassing and proclamation in order to
prolong hold-overs.
2. Section 243 of the Omnibus Election Code provides, in relevant part:
Sec. 243. Issues that may be raised in pre-proclamation controversy. — The following shall
be the proper issues that may be raised in a pre-proclamation controversy:
xxx xxx xxx
(c) The election returns were prepared under duress, threats, coercion, or intimidation, or
they are obviously manufactured or not authentic; and . . . (Emphasis supplied)
Thus, in principle, the issues raised by petitioner do constitute issues properly raised in pre-
proclamation controversies. That the assailed returns were "obviously manufactured" must,
however, be evident from the face of the election returns themselves. In the case at bar,
petitioner does not claim that the election returns from Precincts Nos. 15 and 17 had not
been made or issued by the Board of Election Inspectors or that they had been
manufactured by some unknown third party or parties; petitioner does not, in other words,
claim that the returns themselves were not authentic. What petitioner in effect contends is
that where election returns, though genuine or authentic in character, are reflective of
fraudulent acts done before or carried out by the Board of Election Inspectors, the returns
should be deemed as "obviously manufactured."
Petitioner's contention does not persuade. In Ututalum v. Commission on Elections, et al., 5
petitioner Ututalum (represented by the same counsel who, in the Petition at bar,
represents petitioner) contended that the issues he had raised before the Comelec actually
referred to "obviously manufactured returns", a subject matter proper for a pre-
proclamation controversy and therefore cognizable by the Comelec. Petitioner Ututalum
claimed that the questioned election returns had been based upon a List of Voters which
was subsequently nullified by the Comelec "on the ground of massive irregularities
committed in the preparation thereof and being statistically improbable", and that the
Comelec then ordered a new registration of voters for the local elections of February 1988.
In dismissing the Petition, the Court, said, through Mme. Justice Herrera
That the padding of the of Voters may constitute fraud or that the Board of Election)
Inspectors may have fraudulently conspired in its preparation, would nut be a valid Basis for
a pre-proclamation controversy either. For whenever irregularities, such as fraud, are
asserted, the proper course of action is an election protest.
Such irregularities as fraud, vote-buying and terrorism are proper ground in an election
contest but may not as a rule be invoked to declare a failure of election and to
disenfranchise the greater number of the (electorate through the misdeeds, precisely, of
only a relative few. Otherwise, elections will never be carried out with the resultant
disenfranchisement of the innocent voters, for the losers will always cry fraud and terrorism
(GAD vs. COMELEC, G.R. No. 78302, May 26, 1987, 150 SCRA 665). 6
3. In the case at bar, the Comelec Second Division held that the apparent alphabetical and
chronological sequence in the voting was not necessarily proof of fraud that would justify
the exclusion of the assailed returns. The Comelec Second Division explained
1. Mere alphabetical and chronological voting does not itself constitute sufficient evidence
to establish fraud that would justify the setting aside of election returns. As counsel for
appellant had occasion to assert in Lucman v. Dirripio SPC No. 87-190, October 15, 1987,
"[I]t is unfair to conclude that alphabetical voting is indicative of fraud." and "[l]n some
precise of Lanao, alphabetical voting is imposed to promote an orderIy election," We do not
take such factual finding here. But the evidence is ambiguous and is susceptible of several
interpretations. For this reason we are bound by the presumption of regularity in the
performance of official functions. Rule 131, Sec. 5 (m) Rules of Court. 7
In the case of Lucman v. Dimaporo (SPC 87-190), petitioner Lucman raised before the
Comelec the same issue here raised by petitioner Dipatuan. Counsel for candidate Dimaporo
(again, the same counsel for petitioner Dipatuan) defended the same chronological and
alphabetical voting in the following comments:
It is unfair to conclude that alphabetical voting in Lanao del Sur is indicative of fraud. There
is evidence on record from the testimony of Lucman's own witness Elsa Sarip that
alphabetical voting is an honest procedure adopted by some Boards of Election Inspectors in
Lanao.
In some Precincts in Lanao del Sur, alphabetical voting is imposed to promote an orderly
election. Usually in the morning the bulk of the voters gather in the precincts What the
Board of Election Inspectors do is to call one by one the names of the voters in alphabetical
order to avoid overcrowding in the precincts. This procedure finds corroboration in the very
testimony of Lucman's witness Elsa Sarip. 8
Private respondents in the case at bar explained that Precincts Nos. 15 and 17 of Bacolod
Grande, Lanao del Sur, were located in the poblacion. Early in the morning of election day, 1
February 1988, voters of the two (2) precincts converged on their respective polling places
ready to cast their votes as soon as the precincts opened. In order to avoid trouble, since
everyone wanted to vote ahead of the others, the Boards of Election inspectors of the two
(2) precincts adopted voting by alphabetical order, calling out the names of voters in the
same sequence listed in the List of Voters. 9
4. Petitioner's complaints about supposed irregularities involving illiterate voters appear to
assume that it is improper or unlawful for a third person — e.g., the assistor who had helped
the illiterate to cast his vote 10 — write the name of the assisted illiterate in the voting
record. As the Comelec pointed out, however, the proper procedure for indicating that
illiterate voters have cast their votes has not been specifically set out in the Omnibus
Election Code:
2. The citation of signatures of alleged illiterate voters is not clear. For the procedure that
the Board of Election Inspectors followed with respect to them is not established. The law
itself is not too clear as to how it is to record the fact that an illiterate voter actually votes,
i.e., to do so by thumbmarking the voting record, or to allow the assistor to sign the name of
the illiterate voter. Sec. 196, B.P. Blg. 881. Again, the evidence is ambiguous and we are
bound by law to presume regularity. In addition, it must be pointed out that the illiterate
voters in the two questioned precincts are outnumbered by literate voters whose valid
votes will be invalidated by the setting aside of the returns. The disenfranchisement of
voters through the misdeeds of a few should be avoided. Grand Alliance for Democracy v.
Commission on Elections, supra. 11
5. Turning to the Affidavits relied upon by the petitioner Dipatuan, we need note only that
they do not appear to be the direct and conclusive evidence required in Pimentel v.
Comelec, 12 considering that said Affidavits had been executed by affiants allegedly closely
connected to petitioner and therefore expected to support his position, rather than by
independent and impartial witnesses. In any case, as pointed out in the decision of the
Comelec Second Division, to require the comparison of signatures and thumbmarks
appearing in the voting records and the voter's list and voter's affidavits would necessitate,
not a summary pre-proclamation proceeding, but a regular election protest. In so ruling, the
Comelec correctly relied upon the ruling of this Court in Dianalan v. Comelec. 13
We must conclude that petitioner has not shown any grave abuse of discretion or any act
without or in excess of jurisdiction on part of the Comelec in rendering the decisions dated 8
November 1988 and 22 December 1988.
WHEREFORE, this Petition for certiorari is hereby DISMISSED. No pronouncement as to
costs.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Padilla, Bidin, Sarmiento,
Cortes, Griño-Aquino, Medialdea and Regalado, JJ., concur.
Gancayco, J., is on leave.
Questions properly cognizable in an election protest
G.R. No. 122872 September 10, 1997
PENDATUN SALIH, petitioner,
vs.
COMMISSION ON ELECTIONS, OMARHASSIM ABDULMUNAP and FAWSI ALONZO,
respondents.
HERMOSISIMA, JR., J.:
In the May, 1995 elections, petitioner Pendatun Salih, private respondent Fawzi Alonzo and
private respondent Omarhassim Abdulmunap ran as candidates for the position of Mayor of
the Municipality of Tandubas, Province of Tawi-Tawi. Five of the election returns from the
said municipality were contested by the contending parties. The Municipal Board of
Canvassers of Tandubas, Tawi-Tawi ruled, however, to canvass these contested election
returns on the ground that no sufficient proof was proffered to warrant their exclusion as
defective or fraudulent returns. Just the same, said board did not proclaim any winner, its
ruling having been raised to the Commission on Elections (hereafter, COMELEC) on appeal
and the results of the elections being affected by the inclusion or exclusion of the
questioned returns. The Second Division of said commission, on appeal, ruled to include
three of the questioned election returns and to exclude the remaining two returns. As a
result, the Municipal Board of Canvassers of Tandubas, Tawi-Tawi proclaimed petitioner as
winner of the mayoralty elections in the said municipality. Such proclamation was, however,
nullified by the COMELEC en banc. Said commission en banc also ordered the inclusion of
the two election returns earlier excluded by the Second Division, and directed the Municipal
Board of Canvassers of Tandubas to reconvene, complete the canvass by including said two
election returns and accordingly proclaim the winning candidate for Mayor of the said
municipality.
Threatened to be unseated as Mayor of Tandubas, Tawi-Tawi on the strength of the
aforementioned decision of the COMELEC en banc, petitioner has come to us via this
petition for certiorari under Rule 65 seeking the nullification of the said en banc decision1
and a declaration of his status as the duly elected Mayor of Tandubas, Tawi-Tawi.
The antecedents of this case are not in dispute.
The present controversy traces its origin to three appealed cases, docketed as SPC No. 95-
234, SPC No. 95-237 and UND No. 95-232, the subject of all of which was the ruling of the
Municipal Board of Canvassers of Tandubas, Tawi-Tawi to include five (5) contested election
returns from five precincts, namely, Nos. 10, 10-A, 16, 21 and 21-A. These three cases were
resolved by the Second Division of the COMELEC in its Resolution dated June 28, 1995. Said
Second Division outrightly dismissed UND No. 95-232 for failure to pay docket fees while
disposing of the two other appealed cases in this wise:
. . . [T]he Commission (Second Division) . . . shall limit itself to the resolution of the five (5)
determined contested election returns coming from Precincts No. 10, 10-A, 16, 21 and 21-A.
The Commission (Second Division), also notes that one of the above appeals, namely, that
raised by Petitioner/Appellant Omarhassim Abdulmunap, has been docketed as UND No. 95-
232. There is no showing that the petitioner therein remitted the required docket/filing fees
for initiating the appeal. This Division is therefore constrained to order the outright dismissal
of the said UND No. 95-232 by reason of failure to pay the mandated filing fees under Sec. 2
(a) and (b) of Rule 40, Comelec Rules of Procedure.
The Commission (Second Division) will proceed to resolve the two (2) remaining validly
elevated appeals in SPC No. 95-234 and SPC No. 95-237.
SPC No. 95-234
This appeal refers to the contested election returns from Precinct 21 and 21A of Tandubas.
In Precinct 21 (involving Election Return No. 120612), the Ruling on appeal is one which
rejected the objection NOT to canvass the election return from this precinct. The ruling
states: "Petitioner failed to indicate either to include or exclude the election return for
canvassing, and that there is lack of factual basis." The objection itself does not establish
whether it seeks to include or exclude the return of Precinct No. 21. The document appears
to be an "Opposition to the Objection," and one cannot ascertain the objector's intention.
By reason of the vagueness of the document the Canvass Board was certainly correct when
it ruled that there was failure "to indicate . . . either to include or exclude the election
returns' and therefore the ruling to canvass the return should be sustained.
xxx xxx xxx
In regard to Precinct No. 21-A (Election Return No. 120614), the Municipal Canvass Board
also ruled to canvass the results of the same for the reason that there appears to be no
showing that the return concerned was spurious, falsified, and the results thereof,
statistically improbable. In fact, no supporting evidence was adduced and formally offered
by the objector to give credence to his claims, except the self-serving, joint affidavit also of
objector's very own watchers. Absent strong, clear and convincing evidence there can be no
legal basis to reverse the findings of the canvass board. The results for Precinct No. 21-A
must therefore be likewise included and canvassed as ruled.
SPC No. 95-237
In reference to Precinct No. 10 (Election Return No. 120601), there were several objections
interposed, not only by appellant Salih but also by the other candidate Abdulmunap, among
which were: That there was no actual voting in the said precinct, or if ever, there was
minimal attendance of voters, and tat the election return itself was prepared by the
followers of candidate Alonzo. Also, the returns were obviously manufactured, or were
falsified, and there was absent the required data as to the number of voters who actually
voted.
Reviewing the records elevated to this Commission, and without necessarily relying on the
allegations and evidence of the oppositors Salih and Abdulmunap, the Commission finds
that there are clear indications that the election return in the precinct is not reflective of the
actual voting thereat as shown by the fact that there were 602 voters who appeared to have
case their ballots for the gubernatorial candidates Salih and Matba . . . while the registered
voters of the said precincts, based on Comelec records number only 586 voters. The
existence of excess votes do manifest on its face the anomalous nature of the election
returns, and convey the manufacture and fabrication thereof. (Tagoranao vs. Comelec, 22
SCRA 978)
Considered in the light of the other anomalies in the other precinct in the same barangay of
SAPA, which is admittedly the home barangay of candidate Alonzo, Precinct No. 10-A, there
is every reason to conclude that the narrations and objections of the other candidates to the
inclusion of the above return [have] strong and valid basis. The election return from Precinct
10 cannot therefore be canvassed as a valid return, and should be excluded. The ruling of
the canvass board allowing the canvass of the said return is therefore reversed.
As regards Precinct No. 10-A (Election Return No. 120602), on record are numerous
objections interposed on the inclusion of this return. As in Precinct No. 10, the same was
allegedly prepared despite the fact that there was no voting there, and that said return was
prepared by the followers of candidate Alonzo, giving him an overwhelming lead. Further,
there were reliable reports that one entire PAD of official ballots was removed from the
precinct and filled up by unauthorized individuals, and that the original chairman left the
polling place and never returned to complete the work. Additionally, there were the
undisputed findings, admitted even by the BEI members that the election return was NOT
signed, but only thumbmarked by them. Then there is the abnormally high turnout of
registered voters where 544 out of the 546 registered voters were supposed to have cast
their ballots.
The Commission finds that the evidence of abnormality and irregularities in this precinct is
quite obvious, and thus, affects the validity and legitimacy of the results therein. The lack of
signature is a strong evidence of a falsified or a return that is not authentic. The fact that
there were thumbmarks thereon cannot dispense with the requirement of signatures,
especially where there is NO showing that the thumbmarks do or do not belong to the BEI
members.
One other very glaring anomaly admitted under oath by the BEI members themselves as
contained in their joint affidavit is their declaration that "Election Return No. 120602 of
Precinct No. 10-A was prepared and worked AFTER the counting of the ballots . . . ". Such a
process is in direct contravention of the mandatory requirement that the election return
MUST be prepared SIMULTANEOUSLY with the counting of the ballots . . . .
The unequivocal ADMISSION OF PREPARING THE ELECTION RETURN FOR PRECINCT 10-A
AFTER THE COUNTING is the best evidence that the said election return is anomalous and
was prepared in direct violation of law. Since the admission was executed under oath by the
BEI themselves, taken with the totality of circumstances surrounding the preparation of the
election returns, this election return from Precinct No. 10-A cannot be relied upon and
should be regarded as fictitious or manufactured and excluded from the canvass of the
votes cast for the different candidates in the Municipal[ity] of Tandubas.
xxx xxx xxx
In view hereof, the Commission has no alternative but to conclude that the questioned
return is illegal and cannot be considered for purposes of canvass. The ruling of the Canvass
Board must have to be, as it is hereby, reversed.
Precinct No. 16 (Election Return No. 120608) — The nature of the objection interposed on
this return is such that there is extreme difficulty in accepting the same as truthful in the
absence of supporting evidence. The claim that the ballot box of this precinct was snatched,
opened, and the ballot therein filled up by other persons, cannot be admitted in the absence
of clear and convincing evidence. On its face, the election return for this precinct appears to
be regular, such that there is no valid basis to overrule the findings of the Municipal Board
of Canvassers to include the same in the canvass.2
The Second Division of the COMELEC thus directed the Municipal Board of Canvassers of
Tandubas to complete the canvass of the returns by including those from Precinct Nos. 16,
21, and 21-A while excluding those from Precinct Nos. 10 and 10-A.
On June 30, 1995, said board proclaimed petitioner as winner of the electoral contest for
the position of Mayor of Tandubas, Tawi-Tawi, petitioner having been accredited with the
highest number of votes among all the mayoralty candidates.
On the same day that petitioner was proclaimed as Mayor, private respondent Abdulmunap
filed a Motion for Reconsideration and Suspension of Proclamation.3 Also on the same day,
private respondent Alonzo filed a Motion for Reconsideration4 praying for the reversal and
setting aside of the resolution of the Second Division.
On June 29, 1995, the COMELEC en banc promulgated an Omnibus Resolution on Pending
Cases items 1, 2 and 3 of which read:
1. All cases which were filed by private parties without timely payment of the proper filing
fee are hereby dismissed;
2. All cases which were filed beyond the reglementary period or not in the form prescribed
under appropriate provisions of the Omnibus Election Code, Republic Acts No. 6646 and
7166 are hereby likewise dismissed;
3. All other pre-proclamation cases which do not fall within the class of cases specified
under paragraphs (1) and (2) immediately preceding shall be deemed terminated pursuant
to Section 16, R A 7166. Hence, all the rulings of boards of canvassers concerned are
deemed affirmed. Such boards of canvassers are directed to reconvene forthwith, continue
their respective canvass and proclaim the winning candidates accordingly, if the proceedings
were suspended by virtue of pending pre-proclamation cases . . .5
Pursuant to the aforecited omnibus resolution of the commission en banc regarding the
dismissal of pending pre-proclamation cases, the Second Division of the COMELEC, in an
Order dated July 11, 1995,6 deemed as terminated SPC No. 95-234, UND No. 95-232 and
SPC No. 95-237. This, notwithstanding the fact that private respondents promptly filed their
respective motions for reconsideration of the Resolution of the Second Division dated June
28, 1995.
On July 13, 1995, private respondent Alonzo filed a Motion to Reconsider the Order Dated
July 11, 1995 and Motion to Elevate En Banc the Motion for Reconsideration Dated June 30,
1995.7
On July 21, 1995, the Second Division of the COMELEC issued an Order8 in SPC No. 95-237
whereby the aforementioned motions filed by private respondent Alonzo were certified and
ordered elevated to the COMELEC en banc for appropriate action.
On the same date, July 21, 1995, petitioner filed an Ex-Parte Manifestation before the
Second Division of the COMELEC. In said manifestation, petitioner informed the commission
that private respondent Abdulmunap had formally filed an election protest case before the
Regional Trial Court of Bongao, Tawi-Tawi.9 Acting on such manifestation, the Second
Division issued an Order dated August 4, 1995 noting said manifestation and referring the
same to the COMELEC en banc insofar as SPC No. 95-237 is concerned considering that the
said case had already been, on July 21, 1995, elevated to the commission en banc.
On December 15, 1995, the COMELEC en banc promulgated its decision in SPC No. 95-237
reversing the Second Division and ordering the inclusion of the contested election returns
from Precinct Nos. 10 and 10-A. The commission en banc reversed the Second Division in
this manner:
Peripherals aside, this case boils down to one proposition. Whether or not to include the
results of Precinct Nos. 10 and 10-A in the canvass.
The Commission (Second Division) was correct in dismissing the appeals/petitions in SPC No.
95-234 and UND No. 95-232, upholding the ruling of the MBC in the former and for failure
to pay the requisite fee in the latter. We have, however, our misgivings insofar as Precinct
Nos. 10 and 10-A are concerned.
The assailed resolution ruled to exclude the returns from these precincts premised on the
finding "that there was no actual voting in the said precinct, or, if ever, there was minimal
attendance of voters, and that the election return itself was prepared by the followers of
candidate Alonzo. Also, the returns were obviously manufactured or were falsified, and
there was absent the required data as to the number of voters who actually voted" in the
case of Precinct No. 10 . . . and the alleged missing pad of official ballots and the declaration
of the BEI of Precinct No. 10-A . . . .
These conclusions fall short of the criteria established for the proper and strict appreciation
of the evidence on record. The affidavits executed by the watchers of petitioner Salih, as
heretofore mentioned, were misleading and did not meet the standards for appropriate
consideration (Pimentel, Jr. vs. COMELEC, 140 SCRA 136). In short, there were no specific
evidence to prove the abnormality and irregularities allegedly committed in Precinct No. 10-
A. Neither is there basis to rule that there were excess votes in Precinct No. 10 because the
total registered voters for this precinct is 586 and the combined votes of the four (4)
mayoralty candidates is only 562 (Dorelo vs. COMELEC, 133 SCRA 376). Moreover, the
assertion against the BEI of Precinct 10-A is belied by the minutes of the Board and to
attribute wrongdoing in the preparation of the election return for this precinct is a
misinterpretation of the import of their joint affidavit which is but an error in semantics.
Going back to the Resolution of June 28, 1995 and the Order of July 11, 1995, it appears that
the Commission (Second Division) superseded its own directive to exclude Precinct Nos. 10
and 10-A by considering SPC No. 95-237 TERMINATED thereby affirming the ruling of the
MBC to include in the canvass the election returns from these two precincts. In essence, We
are merely confirming this rectification.
On the other hand, the ex parte manifestation of petitioner Salih, through counsel, filed on
August 4, 1995 "that therefore, the previous MOTION FOR RECONSIDERATION OF THE
RESOLUTION PROMULGATED ON JUNE 28, 1995 dated June 30, 1995 is not and must not be
included in the matters ELEVATED to the Commission En Banc, the case having been
terminated at the Division level", is rendered moot and academic by the en banc hearing of
the motion on August 24, 1995.
The most telling argument against petitioner's perorations is the fact that he was
proclaimed by the MBC of Tandubas during the pendency of a motion for reconsideration
filed by respondent Alonzo in SPC No. 95-237 and petitioner Abdulmunap in SPC Nos. 95-
234 and 95-237, it appearing that the results on Precinct Nos. 10 and 10-A would affect the
election (Section 245, Omnibus Election Code).
All told, We find no solid nor convincing evidence to warrant the exclusion of the election
returns of Precinct Nos. 10 and 10-A from the canvass and hereby ORDER their inclusion in
the canvass.
xxx xxx xxx
WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES to
annul the proclamation of Pendatun Salih . . . as mayor . . . of Tandubas, Tawi-Tawi . . . for
being based on an incomplete canvass and during the pendency of a motion for
reconsideration timely filed (Tatlonghari vs. COMELEC, July 31, 1991, 199 SCRA 849;
Mentang vs. COMELEC, 229 SCRA 666).
ACCORDINGLY, the Municipal Board of Canvassers of Tandubas is DIRECTED to bring to the
Commission, Manila, all the election records and documents in this case including the
Statement of Votes by Precincts and the Election Returns of Precinct Nos. 10 and 10-A, and
turnover said election records and documents to the newly-constituted Board of
Canvassers . . . which shall immediately RECONVENE, complete the CANVASS by including
the results in Precincts 10 and 10-A and thereafter, PROCLAIM the winning candidates for
Mayor . . . of the said Municipality.
It is significant to state at this juncture that Precinct Nos. 10 and 10-A are bailiwicks of
private respondent Alonzo. Predictably, therefore, petitioner, foreseeing his impending
ouster upon the completion of the canvass which is now to include the election returns from
private respondent Alonzo's bailiwicks, as ordered by the COMELEC en banc, filed the
instant petition.
On December 22, 1995, we issued a Temporary Restraining Order enjoining the COMELEC
from enforcing and/or implementing its en banc decision herein assailed during the
pendency of this case.
Petitioner mainly contends that the assumption by the COMELEC en banc of jurisdiction
over SPC No. 95-237, after the same had been deemed terminated by the Second Division of
the same commission in a duly promulgated resolution, is tainted with grave abuse of
discretion. As an indicia of such grave abuse of discretion, petitioner points out that all three
commissioners constituting the Second Division, have cast their dissenting votes to the
majority decision of the COMELEC en banc.
We, however, do not subscribe to petitioner's contentions. The records clearly bear out that
the order issued by the Second Division on the strength of which SPC No. 95-237 was
deemed terminated, came in the heels of private respondents' timely filed motions for
reconsideration. There was thus pending at least two motions for reconsideration of the
decision of the Second Division ordering the exclusion of the election returns from private
respondent Alonzo's bailiwicks that were Precinct Nos. 10 and 10-A. The pendency of such
motions rendered ineffective the resolution of the Second Division ordering the dismissal of
SPC No. 95-237, considering the inherent contradiction in such a situation involving pending
motions for reconsideration in a case that was being dismissed without the issuance of any
order finally disposing of the pending motions. The right of private respondents to ask for
reconsideration of a decision that aggrieved them, cannot be defeated by the mere
expediency or careless measure of ipso facto terminating the case without finally resolving
the pending motions for reconsideration. Rather than find the COMELEC en banc guilty of
grave abuse of discretion, we find the Second Division of the same commission to have
exceeded its powers in terminating an appealed case in which motions for reconsideration
were pending and remain unacted upon.
This petition is dismissible for the reasons above stated. However, the question as to
whether or not to include the election returns from Precinct Nos. 10 and 10-A, ought to be
categorically answered to foreclose any further debate on the matter. We shall therefore
proceed to rule on this question.
We agree with the COMELEC en banc in having included the election returns from Precinct
Nos. 10 and 10-A in the canvassing of the votes cast during the May, 1995 elections for the
position of Mayor of Tandubas, Tawi-Tawi.
The Second Division of the COMELEC excluded the returns from Precinct Nos. 10 and 10-A
on the grounds that no actual voting in the said precincts had taken place; that if there had
been actual voting, there was minimal attendance of voters; that the election returns were
prepared by the followers of private respondent Alonzo; that a missing pad of official ballots
was missing; that for these reasons, the election returns in question were obviously
manufactured or falsified, and that said returns lacked the data as to the number of voters
who actually voted.
On top of all these findings, however, the Second Division did not make any findings of
actual physical alterations or other forms of defects on the face of the questioned election
returns. The conclusion that they are manufactured, falsified or fraudulent necessitates the
premise that no actual voting occurred and/or that the followers of private respondent
Alonzo and not the members of the Board of Election Inspectors, were the persons who
prepared the questioned election returns. Even the finding of the Second Division to the
effect that the returns lacked data as to the actual number of voters, is imperatively
predicated on the premise that there had not been in fact such voting as the returns reflect
on their face or that there had in fact been minimal voting which was not, however,
reflected on the questioned returns, the same having been prepared by private respondent
Alonzo's followers.
In other words, the Second Division of the COMELEC believed that sham voting had taken
place in Precinct Nos. 10 and 10-A and considered the election returns therefrom a product
of fraud perpetrated by private respondent Alonzo in his bailiwicks.
The records of this case, however, are utterly wanting of evidence of such sham and
fraudulent voting. The Second Division of the COMELEC largely relied on the affidavit
executed by the members of the Board of Inspectors who alleged therein that they
prepared the returns after the counting of the votes. Proceeding therefrom, the Second
Division leaped to the conclusion that the questioned returns were fictitious, manufactured
or fraudulent and must, as such, be excluded from the canvass. This allegation, however,
barely makes out a valid pre-proclamation controversy on the ground of fictitious or
manufactured election returns, for ultimately, the grounds relied upon by the Second
Division in order to justify its order to exclude the election returns from Precinct Nos. 10 and
10-A, necessitate evidence of sham voting and such fraudulent schemes perpetrated by
private respondent Alonzo, but no such evidence was proffered and had there been so, the
same is hardly proper in a pre-proclamation controversy such as the instant case. In other
words, on the basis only of the election returns which, on their face, appear regular and
wanting of any physical signs of tampering, alteration, or other similar vice, the Second
Division could not justifiably exclude said returns on the occasion of a pre-proclamation
controversy whose office is limited to incomplete, falsified or materially defective returns
which appear as such on their face. If there had been sham voting or minimal voting which
was made to appear as normal through the falsification of the election returns by private
respondent Alonzo's followers, such grounds are properly cognizable in an election protest
and not in a pre-proclamation controversy. Our ruling in the landmark case of Gov. Tupay T .
Loong, et al. v. COMELEC, et al. and its companion cases, leaves no room for entertaining
such grounds in a pre-proclamation controversy. We instructed in that case:
Very few aspects of our law today can match the dynamism that has characterized the
formulation of our jurisprudential rule on pre-proclamation controversies. The debate has,
however, constantly revolved around whether or not the COMELEC may go beyond the face
of the election returns in determining their authenticity and genuineness. The rule first
established in illustrative cases like Nacionalista Party vs. Comelec and Dizon vs. Provincial
Board is that the COMELEC cannot go beyond the election returns in canvassing the same.
This rule, however, was eroded in subsequent cases since 1966, when in the cave of
Lagumbay vs. Comelec, we empowered the COMELEC to nullify certain contested returns on
the ground of statistical improbability . . . . And then in the 1971 case of Diaz, Sr. vs.
Commission on Elections, in the light of the allegations of petitioners therein to the effect
that the elections in question were tainted with fraud, terrorism and other irregularities, we
sanctioned the COMELEC's procedure of causing the examination by fingerprint and
handwriting experts and analysis of the signatures and fingerprints of the precinct books of
voter and the CE 39's and voting records, in order to determine whether the reported
elections were a sham amounting to no election at all and accordingly deny prima facie
value to the election returns and reject them as manufactured or false returns. We
reiterated this Ruling in Estaniel vs. Commission on Elections and amplified the same in
Usman vs. Commission on Elections. And in the cave of Olfato vs. Commission on Elections,
we went as far as to hold that the statutory enumeration of the grounds proper for filing a
pre-proclamation controversy is not exclusive.
xxx xxx xxx
The year 1987 marked the return to the previous rule that in pre-proclamation
controversies, allegations that clean, regular election returns are in fact sham returns
because no free and honest elections had at all been held due to fraud, terrorism and other
illegal electoral practices, are to be rejected and held to be inappropriate matters to be
raised in pre-proclamation cases, the same being properly the office of election contests
over which electoral tribunals have sole, exclusive jurisdiction. . . .
xxx xxx xxx
The policy consideration underlying the delimitation both of substantive ground and
procedure is the policy to determine as quickly as possible the result of the election on the
basis of canvass. Thus, in the case of Dipatuan vs. Commission on Elections, we categorically
ruled that in a pre-proclamation controversy, COMELEC is not to look beyond or behind
election returns which are on their face regular and authentic returns. A party seeking to
raise issues resolution of which would compel or necessitate COMELEC to pierce the veil of
election returns which are prima facie regular on their face, has his proper remedy in a
regular election protest. By their nature, and given the obvious public interest in the speedy
determination of the results of elections, pre-proclamation controversies are to be resolved
in summary proceedings without the need to present evidence aliunde and certainly
without having to go through voluminous documents and subjecting them to meticulous
technical examinations which take up considerable time.
. . . The prevailing doctrine in this jurisdiction, therefore, is that as long as the returns appear
to be authentic and duly accomplished on their face, the Board of Canvassers cannot look
beyond or behind them to verify allegations of irregularities in the casting or the counting of
the votes.10
As the election returns from Precinct Nos. 10 and 10-A, which were excluded by the Second
Division of the COMELEC, are undisputedly prima facie regular and untampered on their
face, the COMELEC en banc correctly reversed the Second Division and ordered the inclusion
of said returns in the canvass of the votes cast in the mayoralty elections in the Municipality
of Tandubas, Tawi-Tawi. As such, there is clearly no basis to ascribe grave abuse of
discretion to the COMELEC en banc.
WHEREFORE, the instant petition is hereby DISMISSED. The Temporary Restraining Order
heretofore issued is hereby DISSOLVED.
Costs against petitioner.
SO ORDERED.
Suspension of proclamation and filing of election protest
G.R. No. 138969 December 17, 1999
SALIPONGAN DAGLOC, petitioner,
vs.
THE COMMISSION ON ELECTIONS, HON. EMMANUEL BADOY, and SALAMBAI
AMBOLODTO, respondents.
MENDOZA, J.:
This is a petition for certiorari seeking to set aside the resolution, 1 dated June 29, 1999, of
the Commission on Elections en banc upholding the denial by the Regional Trial Court,
Branch 14, Cotabato City of petitioner's motion to dismiss the election protest filed by
private respondent and directing the continuance of the proceedings.
The antecedent facts are:
Private respondent Salambai Ambolodto and Sukarno Samad were mayoralty candidates in
the local elections held on May 11, 1998 in Kabuntalan, Maguindanao. Samad was declared
winner. He and herein petitioner Salipongan Dagloc, who was elected vice-mayor, were
proclaimed on May 14, 1998.
On May 23, 1998, private respondent filed a petition in the COMELEC entitled PETITION TO
DECLARE A FAILURE OF ELECTION AND/OR ANNUL THE ELECTION RESULTS IN THE
MUNICIPALITY OF KABUNTALAN, FIRST DISTRICT OF MAGUINDANAO, 2 docketed as SPA No.
98-356. In addition, on June 19, 1998, she filed an ELECTION PROTEST EX ABUNDANTI
CAUTELA, 3 docketed as Election Protest No. 38-98, in the RTC, Branch 14, Cotabato City.
On July 6, 1998, private respondent moved to withdraw SPA No. 98-356 in the COMELEC in
order to prosecute Election Protest No. 38-98 in the
RTC. 4 The COMELEC granted her motion in its order dated February 4,
1999. 5
Meanwhile, Samad filed his answer in Election Protest No. 38-98 in which he sought the
dismissal of the protest on the ground that it was filed more than 10 days from the date of
proclamation on May 14, 1998. He reiterated his motion to dismiss 6 in a subsequent
pleading, and, in addition, asked that it be resolved before private respondent's motion for
technical examination of C.E. Forms 1 and 2. In an order, dated August 18, 1998, the trial
court denied the motion to dismiss.
Samad then filed a petition for certiorari (SPR No. 37-98) in the COMELEC, assailing the
order of the RTC denying his motion to dismiss. While the case was pending, Samad died,
and herein petitioner, who had succeeded him as mayor of Kabuntalan, was substituted in
his place in the pending cases before the COMELEC (SPR No. 37-98) and the RTC (Election
Protest No. 38-98).
On June 29, 1999, the COMELEC en banc dismissed SPR No. 37-98 for lack of merit. It held
that while SPA No. 98-356 filed by Samad was denominated as PETITION TO DECLARE A
FAILURE OF ELECTION AND/OR TO ANNUL THE ELECTION RESULTS IN THE MUNICIPALITY OF
KABUNTALAN, FIRST DISTRICT OF MAGUINDANAO, the case was actually a petition for
annulment of proclamation which, under §248 of the Omnibus Election Code, suspended
the running of the period for filing an election protest. Consequently, the filing of Election
Protest No. 38-98 in the RTC on June 19, 1998 was timely as SPA No. 98-356, filed one day
before the lapse of the period for filing an election protest, prevented the expiration of said
period.
Hence, this petition. On August 10, 1999, we issued a temporary restraining order enjoining
the COMELEC from implementing its questioned resolution in SPR No. 37-98 and the RTC
from taking further action in Election Protest No. 38-98.
Petitioner contends that the COMELEC committed grave abuse of discretion in holding that
the filing of private respondent's petition for a declaration of a failure of election and for the
annulment of election results suspended the running of the reglemetary period for filing an
election protest. He maintains that what is contemplated in §248 of the Election Code is the
filing of a pre-proclamation controversy praying for annulment or suspension of
proclamation. In addition, petitioner questions the authority of COMELEC Commissioner
Abdul Gani M. Marohombsar who signed the COMELEC resolution in question on June 29,
1999, when his term had already expired on June 4, 1999.
Private respondent, on the other hand, contends that §248 of the Election Code is not
limited to the filing of a pre-proclamation controversy but includes as well a petition for a
declaration of the failure of election. She argues that "[f]or so long as there is a prayer for
the annulment of a proclamation in a petition filed with the COMELEC and within the
COMELEC's jurisdiction, the filing thereof suspends the running of the 10-day period to file
an election protest or quo wararranto proceedings. . . . Even the filing of a petition for
disqualification praying for the annulment of proclamation on the ground of ineligibility
would suspend the running of the period to file an electoral protest." She also claims that
the petition in SPR No. 37-98 filed by petitioner's predecessor should have been dismissed
by the COMELEC since it is actually based on the denial by the RTC of a motion to dismiss an
election protest, which motion is a prohibited pleading under Rule 13, §1 of the COMELEC
Rules of Procedure.
The primary issue in this case is whether §248 of the Election Code applies only to the filing
of a pre-proclamation controversy. On the resolution of this issue hinges the question of
whether private respondent's election protest was timely filed.
Sec. 248 reads:
Effect of filing petition to annul or to suspend the proclamation. — The filing with the
Commission [on Elections] of a petition to annul or to suspend the proclamation of any
candidate shall suspend the running of the period within which to file an election protest or
quo warranto proceedings.
There is no question that the above provision covers the filing of pre-proclamation
controversies. This is clear from §242 of the Election Code which reads:
Commission's exclusive jurisdiction of all pre-proclamation controversies. — The
Commission [on Elections] shall have exclusive jurisdiction of all pre-proclamation
controversies. It may motu proprio or upon written petition, and after due notice and
hearing, order the partial or total suspension of the proclamation of any candidate-elect or
annul partially or totally any proclamation, if one has been made, as the evidence shall
warrant in accordance with the succeeding sections.
The reason for this is that unless the proclamation of a winning candidate is suspended or, if
it has been held, set aside, the policy behind the allowance of pre-proclamation
controversies, i.e., to prevent losing candidates from grabbing the proclamation and
delaying the resolution of the electoral contest, will be defeated. Thus, in Esquivel v.
Commission on Elections, 7 it was held that the 10-day period for filing an election protest
under §289 of the former Election Code was suspended by the filing of a petition for
annulment of proclamation. This Court said:
The suspension of the l0-day statutory period for the filing of an election protest until such
time as the Commission on Elections has finally decided the pending pre-proclamation
controversy is but logical and just, since if the protestant prevails in the pre-proclamation
controversy, there would be no further need for him to file a regular election protest. . . .
This Court has since the case of Benjamin S. Abalos vs. Ernesto S. Domingo [G.R. No. 52665,
Resolution of February 29, 1980] deemed suspended the 10-day statutory period for the
filing of an election protest during the pendency of a pre-proclamation controversy and in all
subsequent cases, the latest of which is its decision of July 25, 1980 [G.R. No. 53532, Noli M.
Valenzuela v. Comelec] wherein the losing party in the pre-proclamation controversy was
granted "a period of ten [10] days from receipt of this Resolution [of dismissal] to file before
the proper court a quo warranto suit or election protest." 8
The filing of pre-proclamation controversies under §248 of the Omnibus Election Code,
however, is not the only ground for the suspension of proclamation. Two other instances
are provided in R.A. No. 6646, known as "The Electoral Reforms Law of 1987," viz.: (1) Under
§6 of the statute, the COMELEC may, upon motion of the complainant in an action for
disqualification, suspend the proclamation of the winning candidate if the evidence of his
guilt is strong, and (2) under §7 thereof, the COMELEC may likewise suspend the
proclamation of the winning candidate if there is ground for denying or canceling his
certificate of candidacy. Thus, §6 of R.A. No. 6646 provides:
Effect of Disqualification Case. — Any candidate who has been declared by final judgment to
be disqualified shah not be voted for, and the votes cast for him shall not be counted. If for
any reason a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such election,
the Court or Commission shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence
of his guilt is strong.
Sec. 7, on the other hand, states:
Petition to Deny Due Course to or Cancel a Certificate of Candidacy. — The procedure
hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of
candidacy provided in Section 78 of Batas Pambansa Blg. 881.
These actions are in the nature of pre-proclamation controversies and, thereof, like pre-
proclamation contests, their filing is a ground for the suspension of proclamation and,
consequently, of the period for filing either an election protest or a petition for quo
warranto.
However, petitioner is correct that SPA No. 98-356 is not a pre-proclamation controversy.
Much less is it a petition for disqualification or for the denial or cancellation of a certificate
of candidacy. Indeed, private respondent does not claim that her petition raises pre-
proclamation issues. She frankly admits that SPA No. 98-356 is a filed under §6 of the
Omnibus Election Code for a declaration of failure of election. 9 In fact, her petition clearly
states its nature, as it is denominated PETITION TO DECLARE A FAILURE OF ELECTION
AND/OR TO ANNUL THE ELECTION RESULTS IN THE MUNICIPALITY OF KABUNTALAN, FIRST
DISTRICT OF MAGUINDANAO, and alleges the following: 10
4.1 No valid and legitimate elections were actually held or conducted in the above-
mentioned municipality;
4.2 No valid and/or legitimate elections were actually held in the said municipality as
OFFICIAL BALLOTS were, in fact, PREPARED BY ONLY a few individuals. This fact will be
shown by the signatures and thumbmarks affixed in the Voting Registration Records of each
of the precincts in the municipality which do not belong to the registered voters;
4.3 The official ballots having been prepared by persons other than the registered voters,
the votes reflected in the election returns coming from the various precincts of the same
municipality are not truly reflective of the actual and true votes cast in the said precincts;
4.4 Widespread violence and intimidation were employed to force watchers of the
Petitioners to leave the polling places and thus, giving a chance for the representatives of
the respondent to perpetrate the above allegations.
Attached hereto and marked as Annexes are the sworn affidavits of witnesses of Petitioners
as well as certified true copies of the Voters Registration Records and the Voter's Voting
Records attesting to the facts of the allegations above-stated;
Please refer to the Annexes hereto attached.
The Voter's Registration Records duly certified by the Election Assistant of Kabuntalan,
Maguindanao, on May 19, 1998, shows that the Voting Record at the back thereof is
TOTALLY BLANK, meaning entries therein were not filled up. The Voter's Voting Record,
which is likewise, hereto attached, does not match with the Voter's Registration Record.
Even with our naked eye, one can already conclude that there was actually NO voting that
took place in the Municipality of Kabuntalan.
5. By reason of the above terrorism, fraud and violence committed by the respondent, her
supporters and sympathizers, there was failure of election in Kabuntalan, Maguindanao. Any
proclamation of the respondent is void ab initio there being a failure of election;
6. There is a need for technical examination of the Voter's Registration Records and the List
of Voters with Voting records for the purpose of determining the massive substitute voting
in the precincts in Kabuntalan, Maguindanao.
In Matalam v. COMELEC, 11 it was held that an action for a declaration of the failure of
election is not in the nature of a pre-proclamation controversy. The distinction between the
two actions was discussed by the Court in Loong v. COMELEC 12 in this wise:
While, however, the COMELEC is restricted, in pre-proclamation cases, to an examination of
the election returns on their face and is without jurisdiction to go beyond or behind them
and investigate election irregularities, the COMELEC is duty bound to investigate allegations
of fraud, terrorism, violence and other analogous causes in actions for annulment of
election results or for declaration of failure of elections, as the Omnibus Election Code
denominates the same. Thus, the COMELEC, in the case of actions for annulment of election
results or declaration of failure of elections, may conduct technical examination of election
documents and compare and analyze voters' signatures and fingerprints in order to
determine whether or not the elections had indeed been free, honest and clean. Needless
to say, a pre-proclamation controversy is not the same as an action for annulment of
election results or declaration of failure of elections.
Private respondent, on the other hand, contends that as long as there is a prayer for the
annulment of a proclamation, the filing of such petition effectively suspends the running of
the period for filing an election protest. This contention has no merit. Not all actions seeking
the annulment of proclamation suspend the running of the period for filing an election
protest or a petition for quo warranto. For it is not the relief prayed for which distinguishes
actions under §248 from an election protest or quo warranto proceedings, but the grounds
on which they are based.
The purpose for allowing pre-proclamation controversies is to put a stop to the pernicious
practice of unscrupulous candidates of "grabbing the proclamation and prolonging the
protest." Accordingly, grounds which are proper for electoral protests should not be allowed
to delay the proclamation of the winners. As this Court pointed out in Dimaporo v.
Commission on Elections: 13
It may well be true that public policy may occasionally permit the occurrence of "grab the
proclamation and prolong the protest" situations; that public policy, however, balances the
possibility of such situations against the shortening of the period during which no winners
are proclaimed, a period commonly fraught with tension and danger for the public at large.
In view of the foregoing, we hold that the filing by private respondent of a petition for
declaration of failure of election (SPA No. 98-356) did not suspend the running of the
reglementary period within which to file an election protest or quo warranto proceedings.
The period for private respondent to do so expired on May 24, 1998, 10 days from the
proclamation of Sukarno Samad and petitioner as mayor and vice-mayor, respectively. The
filing of private respondent's election protest in the RTC on June 19, 1998 was made out of
time.
However, petitioner's contention that the assailed resolution is invalid because
Commissioner Abdul Gani M. Marohombsar had no authority to sign the same, because his
term had expired when the resolution was promulgated, is without merit. It appears that
Commissioner Marohombsar's term expired on June 3, 1999 (not June 4, 1999 as alleged by
petitioner), while the assailed resolution was promulgated on June 29, 1999. The voting was
6-1. Even disregarding the vote of Commissioner Marohombsar there was still a majority.
The resolution in question is, therefore, valid.
On the other hand, private respondent contends that the petition in SPR No. 37-98 filed in
the COMELEC by Samad, petitioner's predecessor, should be dismissed and stricken out
since it is actually based on a motion to dismiss in Election Protest No. 38-98 in the RTC,
which is a prohibited pleading under the COMELEC Rules of Procedure.
The argument is also untenable. Private respondent apparently refers to the prohibition
found in Rule 13, §1 of the COMELEC Rules of Procedure, 14 under Part III entitled
INITIATION OF ACTIONS OR PROCEEDINGS BEFORE THE COMMISSION. As is evident from
the said heading, this provision is applicable only to actions or proceedings before the
COMELEC. Rule 1, §2 of the COMELEC Rules states:
These rules, except Part VI, shall apply to all actions and proceedings brought before the
Commission. Part VI shall apply to election contests and quo warranto cases cognizable by
courts of general or limited jurisdiction.
The prohibition, therefore, does not apply to the proceedings in the RTC where the motion
to dismiss was filed.
WHEREFORE, the resolution, dated June 29, 1999, of the Commission on Elections is SET
ASIDE and Election Protest No. 38-98 in the Regional Trial Court, Branch 14, Cotabato City is
ordered DISMISSED for having been filed out of time.
SO ORDERED.
Suspension of proclamation and filing of election protest
G.R. Nos. 148575-76 December 10, 2003
ABDUSAKUR M. TAN, ABDULWAHID SAHIDULLA, BRAHAM BURAHAN, petitioners,
vs.
COMMISSION ON ELECTIONS, YUSOP H. JIKIRI, ABDEL S. ANNI, DEN RASHER I. SALIM, TALIB
L. HAYUDINI, RIZAL TINGKAHAN, BARLIE NAHUDAN, ABRAHAM DAUD, LUKMAN OMAR,
ONNIH AHMAD and BASARON M. BURAHAN, respondents.
x-----------------------x
G.R. Nos. 152882-83
YUSOP JIKIRI, ABDEL ANNI, ABRAHAM DAUD, LUKMAN OMAR, ONNIH AHMAD, BASARON
BURAHAN, DEN RASHER SALIM, TALIB HAYUDINI, RIZAL TINGKAHAN, and BARLIE
NAHUDAN, petitioners,
vs.
COMMISSION ON ELECTIONS, ABDUSAKUR TAN, ABDULWAHID SAHIDULLA, MUNIB
ESTINO and ABRAHAM BURAHAN, respondents.
DECISION
CALLEJO, SR., J.:
Before us are two consolidated petitions filed under Rule 65 of the Rules of Court, as
amended, assailing the Orders of the Commission on Elections En Banc dated June 28, 2001,
October 3, 2001 and April 17, 2002 in SPA No. 01-257 and SPA No. 01-265 for having been
issued with grave abuse of discretion amounting to lack or excess of jurisdiction.
The factual antecedents insofar as pertinent to the instant petitions are as follows:
In the May 14, 2001 elections, Abdusakur Tan and Abdulwahid Sahidulla were candidates for
Governor and Vice-Governor, respectively, while Munib Estino and Abraham Burahan were
candidates for Congressman of the Second and First District of Sulu, respectively. The other
candidates for Governor and Vice-Governor were Yusop Jikiri and Abdel Anni. The
candidates for the position of members of the Sangguniang Panlalawigan of the First District
of Sulu were Den Rasher Salim, Talib Hayudini, Rizal Tingkahan and Barlie Nahudan, while
those for the Second District were Abraham Daud, Lukman Omar, Onnih Ahmad and
Basaron Burahan.
On May 17, 2001, Abdusakur Tan, Abdulwahid Sahidulla and Abraham Burahan (Abdusakur
Tan, et al. for brevity) filed with the COMELEC (public respondent) a petition to "declare
failure of elections in all the precincts in the Municipality of Luuk," Province of Sulu, which
was docketed as SPA No. 01-257.1 The petitioners prayed that:
WHEREFORE, premises considered, it is respectfully prayed that the Honorable Commission
DECLARE a FAILURE of ELECTIONS in all the precincts in the Municipality of Luuk, Sulu where
no voting was actually held, as the registered voters never did their votes.
The petitioners further pray that pending final resolution of this petition that an order be
immediately issued directing the Municipal Board of Canvassers of Luuk, Sulu as well as the
Provincial Board of Canvassers of Sulu to suspend and desist from continuing with, the
CANVASSING of the election returns and/or certificate of canvass.
Other relief consistent with law, justice and equity are also prayed for.2
The following day, the petitioners filed a petition to declare failure of elections and/or to
annul the elections or the election results in the Municipalities of Parang and Indanan,
Province of Sulu, which was docketed as SPA No. 01-265.3 The petitioners prayed that:
WHEREFORE, petitioners respectfully pray that this petition be granted and that an Order be
issued:
1. Annulling and setting aside the elections and/or the election results in the May 14, 2001
elections in the municipalities of Indanan and Parang, Sulu, and declaring a failure of
elections therein;
2. Suspending the canvassing and the proclamation of any and all alleged "winning"
candidates in the municipalities of Indanan and Parang, Sulu;
3. Calling for immediate special elections in the aforesaid areas where failure of elections
transpired;
4. Such other reliefs as may be just and equitable are likewise prayed.4
No respondents were impleaded in both petitions. The public respondent took cognizance
of and assumed jurisdiction over the petitions.
On May 19, 2001, the petitioners therein filed "an urgent reiterating motion to suspend
proclamation."5 Acting on the said motion, the public respondent issued an order
suspending the proclamation of the winning candidates, viz.:
Acting on the Petition filed on May 17, 2001 in the above-captioned case, including the
reiterating motion of May 19, 2001, and finding the same to be sufficient to warrant the
issuance of a preliminary summary action, so as not to render academic, the petition in the
above case, let there be issued to the Provincial Board of Canvassers of Sulu an
Order/directive for the suspension of proclamation of the winning candidates for all elective
provincial positions, until further order/s from this Commission.6
However, the Provincial Board of Canvassers (PBC) was not served with a copy of the order
of the public respondent. On May 23, 2001, Yusop Jikiri, Abdel Anni, Abraham Daud, Lukman
Omar, Onnih Ahmad, Basaron Burahan, Den Rasher Salim, Talib Hayudini, Rizal Tingkahan
and Barlie Nahudan were proclaimed as the winning candidates for Governor, Vice-
Governor and Board Members.7
On May 30, 2001, the petitioners therein filed their Amended Petitions in SPA Nos. 01-2578
and 01-2659 impleading for the first time the winning candidates, Yusop Jikiri, et al., as party
respondents. The petitioners in SPA No. 01-257 prayed that:
WHEREFORE, premises considered, it is respectfully prayed that the Honorable Commission
DECLARE a FAILURE OF ELECTION in all the precincts in the Municipality of Luuk, Sulu where
no voting was actually held as the registered voters never did cast their votes.
Petitioners further pray that pending final resolution of this petition that an order be
immediately issued directing the Municipal Board of Canvassers of Luuk, Sulu as well as the
Provincial Board of Canvassers of Sulu to suspend, and desist from continuing with, the
CANVASSING of the election returns and/or certificate of canvass.
Other relief consistent with law, justice, and equity are also prayed for.10
The petitioners in SPA No. 01-265 prayed that:
WHEREFORE, petitioners respectfully pray that this petition be granted and that an Order be
issued:
1. Annulling and setting aside the elections and/or the election results in the May 14, 2001
elections in the municipalities of Indanan and Parang, Sulu and declaring a failure of
elections therein;
2. Calling for immediate special elections in the aforesaid areas where failure of election
transpired.
3. Such other reliefs as may be just and equitable are likewise prayed.11
On June 11 and 18, 2001, the respondents filed their respective answers to the aforesaid
amended petitions questioning in the main the jurisdiction of the COMELEC En Banc to act
on the said amended petitions and the propriety of the recourse of the petitioners in view of
their valid, lawful and existing proclamation as the winners.12 The petitioners in turn filed
an urgent motion to annul the proclamation of the respondents as the winners. The
respondents opposed the motion, contending that such motion was appropriate only in pre-
proclamation controversies.
On June 20, 2001, the COMELEC En Banc issued an order annulling the May 23, 2001
proclamation of the respondents on its finding that the proclamation by the PBC of the
winning candidates was a defiance of its Order of May 19, 2001. The public respondent
forthwith set the amended petitions for hearing.13 In the meantime, the respondents filed a
motion for the recall of the June 20, 2001 Order of the COMELEC on the ground that the
petitions before it were merely petitions to declare a failure of election and do not involve a
pre-proclamation controversy. However, the COMELEC failed to immediately resolve the
pending incidents. In the meantime, the petitioners pre-marked their evidence. The
respondents reserved the right to pre-mark their evidence before the Clerk of Court of the
COMELEC without prejudice to the resolution of the pending motions.

On June 28, 2001, after due hearing, the COMELEC issued an order recalling and setting
aside its June 20, 2001 Order, and affirming the May 23, 2001 proclamation of the
respondents. The order states inter alia that:
After due consideration and there being no valid pre-proclamation issues pending before
the Commission involving the elective provincial officials of the Province of Sulu, and
considering further our ruling in SPA 01-323 and SPA 01-244 involving the elective provincial
officials of the Province of Maguindanao, the Commission RESOLVES, as it is hereby
RESOLVED, to recall its June 20, 2001 Order annulling the proclamation of the elective
provincial officials of the Province of Sulu.
The defiance by the PBC of the order of suspension of the Commission, though a valid
concern, cannot and should not deter the proclamation of the provincial officials of Sulu
after the result of the provincial canvassing showed that they were the winning candidates.
WHEREFORE, premises considered, the June 20, 2001 Order of this Commission is hereby
recalled and set aside and the proclamation of the private respondents on May 23, 2001 is
hereby AFFIRMED.
This ORDER is without prejudice to the administrative case referred by the Commission to
the Law Department against the PBC of Sulu. This ORDER is likewise without prejudice to a
full resolution of the main petition to declare failure of elections in the municipalities of
Luuk, Indanan and Parang.14
Aggrieved, the petitioners filed on July 11, 2001 with this Court a petition for certiorari,
prohibition and mandamus docketed as G.R. Nos. 148575-76 with prayer for the issuance of
a writ of injunction and/or temporary restraining order and/or status quo ante order,
assailing the aforequoted June 28, 2001 Order of the public respondent; and submitting for
the Court’s resolution the following threshold issue:
The threshold issue in this petition is the determination of whether the Comelec has the
power to issue an order suspending proclamation as a preliminary relief in a petition for
declaration of failure of election and/or annulment of election results.
Corollary thereto, did respondent Comelec gravely abuse its discretion when it issued its
June 28, 2001 Questioned Order recalling, and effectively reconsidering, the suspension of
proclamation it had previously promulgated?15
In the meantime, acting on a series of motions filed by the petitioners, the COMELEC issued
an Order dated October 3, 2001 directing the technical examination of the voters
registration records in the Municipalities of Parang, Indanan and Luuk, thus:
1. To direct the Election Officers of the Municipalities of Luuk, Indanan and Parang, Sulu to
produce before the Commission the pertinent VOTERS REGISTRATION RECORDS showing
the thumbmarks and signatures of voters affixed during their registration and during the
voting in the May 14, 2001 elections (CE Form No. 1) within ten (10) days from receipt
hereof, to be deposited at the Election Records and Statistics Department;
2. To require petitioner to defray the expenses for the transportation to the main office of
said election documents; and to advance to the Election Officers concerned the necessary
amount for said transportation of documents;
3. Parties are entitled to watchers during the transport of these documents at their own
expense until duly received by the Election Records and Statistics Department, this
Commission.
4. To direct the Voters Identification Division to conduct technical examination of said
documents and to make a report thereon to the Commission En Banc within fifteen (15)
days;
5. Let the Deputy Executive Director for Operations implement this Order.
Furnish copy of this Order to the Election Records and Statistics Department, this
Commission.16
On October 12, 2001, the respondents filed with the COMELEC an omnibus motion to
resolve the issue of jurisdiction with a prayer to recall and/or suspend implementation of
the Order dated October 3, 2001."17 The respondents contended that based on the
documentary evidence, there was no failure of election; the proper remedy of the
petitioners was for them to file election protest cases and not petitions to declare a failure
of election in view of their valid, lawful and existing proclamation as the winning candidates
confirmed no less by the COMELEC. The respondents alleged that the petitions before it
being regular election protest cases disguised as petitions to declare a failure of election
should be heard by a division of the COMELEC and not by the COMELEC En Banc as provided
for in Section 3, Article IX-C of the Constitution. The respondents, likewise, argued that to
direct the technical examination of voluminous documents would be repugnant to the
summary nature of the cases before it and violative of Section 6, Rule 26 of the COMELEC
Rules of Procedure which states that a petition for declaration of failure of elections is
summary.
On April 17, 2002, the COMELEC issued an order declaring that it had jurisdiction over the
amended petitions conformably with Section 4 of Republic Act No. 7166; and denying the
omnibus motion of the respondents, thus:
WHEREFORE, premises considered, the Omnibus Motion and the Motion to Suspend the
Implementation of the October 3, 2001 Order of the Commission en banc is DENIED for lack
of merit.
The Commission en banc orders the Voters Identification Division to continue the technical
examination of the Voters Registration Records of Luuk, Parang and Indanan, Sulu as
authorized in the October 3, 2001 en banc Order.18
The COMELEC ruled that based on the allegations of the amended petitions, there was no
valid and legitimate elections held or conducted in the three municipalities. It, likewise,
ruled that it had the authority to order a technical examination of the VRR’s in a petition to
declare a failure of election citing the ruling of this Court in Loong v. Commission on
Elections.19 Hence, on April 29, 2002, the respondents therein filed with this Court a
petition for certiorari docketed as G.R. Nos. 152882-83 with prayer for the issuance of a
temporary restraining order and/or writ of preliminary injunction, praying for the
nullification of the public respondent’s Orders dated October 3, 2001 and April 17, 2002 and
for the dismissal of SPA Nos. 01-257 and 01-265 for lack of jurisdiction. They argued that:
(a) ON JUNE 28, 2001, THE COMELEC ITSELF AFFIRMED THE MAY 23, 2001 PROCLAMATION
OF THE PETITIONERS AS THE DULY ELECTED PROVINCIAL ELECTIVE OFFICIALS OF THE
PROVINCE OF SULU IN THE MAY 14, 2001 ELECTIONS. THEREFORE, IT IS A VALID AND
EXISTING PROCLAMATION. SUCH PROCLAMATION PRESUPPOSES THAT AN ELECTION HAS
BEEN CONDUCTED. THUS, ANY ALLEGED IRREGULARITIES IN THE POLLS ARE MATTERS OF
ELECTION PROTEST.
(b) PETITIONERS HAVE ALREADY ASSUMED AND ARE ALREADY EXERCISING THEIR DUTIES
AND FUNCTIONS AS ELECTIVE PROVINCIAL OFFICIALS SINCE JUNE 30, 2001. HENCE, THE
REMEDY OF THE LOSING CANDIDATES IS AN ELECTION PROTEST.
(c) ONCE PROCLAMATION IS MADE, THE PROPRIETY OF FAILURE OF ELECTION ENDS AND
THE REALM OF ELECTION PROTEST BEGINS. THIS IS SO BECAUSE THE DIVIDING LINE
BETWEEN PETITION TO DECLARE FAILURE OF ELECTION AND ELECTION PROTEST IS
PROCLAMATION. AND HERE, THE PROCLAMATION IS VALID. IT WAS AFFIRMED BY THE
COMELEC EN BANC AFTER A HEARING WHERE ALL THE PARTIES WERE GIVEN THE
OPPORTUNITY TO BE HEARD.
(d) THERE BEING VALID AND EXISTING PROCLAMATION AND SUCH PROCLAMATION HAVING
BEEN AFFIRMED, THERE WAS NO FAILURE OF ELECTION AS WINNERS HAD EMERGED. IN
TYPOCO V. COMELEC, 319 SCRA 498 and BORJA V. COMELEC, 260 SCRA 604, IT WAS HELD
THAT FAILURE OF ELECTION SHOULD LITERALLY MEAN "THAT NOBODY EMERGED AS A
WINNER." IN THE INSTANT CASE, WINNERS HAD EMERGED IN VIEW OF THE VALID AND
EXISTING PROCLAMATION OF THE PETITIONERS, AFFIRMED BY THE COMELEC ITSELF.
HENCE, THERE WAS NO FAILURE OF ELECTION. THE REMEDY OF PRIVATE RESPONDENTS IS
AN ELECTION PROTEST.
(e) THE QUESTIONED ORDER WOULD EVEN ALLOW THE PIERCING OF THE VEIL OF ELECTION
RETURNS SINCE TECHNICAL EXAMINATION OF ELECTION DOCUMENTS COULD BE ALLOWED
IN ALL KINDS OF PETITIONS WHICH COULD NOW BE DISGUISED AS ONE FOR FAILURE OF
ELECTION.20
On March 4, 2003, the Court granted the motion of the petitioners in G.R. Nos. 152882-83
for the issuance of a temporary restraining order directing the COMELEC to cease and desist
from implementing its questioned Orders dated October 3, 2001 and April 17, 2002 and
from further proceeding thereon.
On April 29, 2003, the Court ordered the consolidation of G.R. Nos. 148575-76 and G.R. Nos.
152882-83 since both petitions arose from a common set of facts and raised similar issues.
For convenience, the Court shall delve into and resolve the issues in both petitions
simultaneously and will refer to Yusop Jikiri, Abdel Anni, Abraham Daud, Lukman Omar,
Onnih Ahmad, Basaron Burahan, Den Rasher Salim, Talib Hayudini, Rizal Tingkahan, and
Barlie Nahudan as the petitioners; and, Abdusakur M. Tan, Abdulwahid Sahidulla, and
Abraham Burahan as the respondents, without reference to the docket numbers of the
petitions respectively filed in this Court.
The threshold issues for resolution are (1) whether the COMELEC En Banc, now public
respondent, is vested with jurisdiction to take cognizance of and resolve the amended
petitions before it; (2) whether the public respondent acted with grave abuse of its
discretion amounting to excess or lack of jurisdiction in issuing its Orders dated June 28,
2001, October 3, 2001, and April 17, 2002.
On the first issue, the petitioners aver that the respondents were proscribed from filing their
amended petition for a declaration of failure of elections and/or for the annulment of
elections under Section 6, Republic Act No. 7166 for the reason that the petitioners had
already been proclaimed the winning candidates. They contend that a petition for
declaration of failure of elections or for the annulment of an election can no longer be filed
and prosecuted after the winning candidates had already been proclaimed by the PBC. They
aver that the proper recourse of the respondents was to file election protest cases against
the petitioners as the winning candidates. The petitioners also assert that the proceedings in
an election protest are not summary in nature and should be ventilated in a full-blown
hearing. The petitioners argue that the amended petitions of the respondents are election
protest cases over which the COMELEC assumes jurisdiction in the exercise of its quasi-
judicial powers and should be referred for hearing and resolution to a Division of the
COMELEC as mandated by Section 3, Article IX-C of the Constitution and Section 250 of the
Omnibus Election Code.
The respondents, for their part, aver that the public respondent took cognizance of the
amended petitions under Section 4, Rep. Act No. 7166 in its administrative capacity and not
as a quasi-judicial body. They also contend that the acts/omissions alleged in the amended
petitions are proper subjects for a petition for a declaration of a failure of election or for the
annulment of the elections. They assert that in a petition for a declaration of failure of
election, the public respondent does not exercise quasi-judicial functions because it does
not adjudicate any conflicting or adverse claims of the contending parties as there are no
rights to speak of under which adverse claims to such rights are made. They argue that in
taking cognizance of the amended petitions, the public respondent was merely performing
its duties as an administrative body tasked to ensure clean, honest, orderly and peaceful
elections. The said respondents cited the ruling of the Court in Loong v. COMELEC.21
The Office of the Solicitor General (OSG) is of the view that a petition to declare a failure of
election may be maintained even when a winner had already been proclaimed. The OSG
cited the ruling of this Court in Soliva v. COMELEC.22 The public respondent is mandated in
the exercise of its administrative powers under Section 2(3), Article IX of the Constitution, to
investigate allegations of fraud, terrorism, violence and other analogous causes of actions
for annulment of election results or declaration of a failure of election as the Omnibus
Election Code denominates. It also submits that the public respondent is mandated to
conduct an investigation as to the veracity of the allegations of the respondents of fraud,
terrorism, harassment and intimidation to ensure the conduct of free and impartial
elections.
We agree with the petitioners.
The amended petitions filed by the respondents herein are election protest cases over
which the public respondent has original exclusive jurisdiction under Section 2(2), Article IX
of the Constitution. The public respondent assumed jurisdiction over the amended petitions
in the exercise of its quasi-judicial powers.23 Section 4,24 Rep. Act No. 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 elections as provided in
Section 6 of the Omnibus Election Code. Said Section 6, in turn, provides that:
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 a verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of the election not held, suspended
or which resulted in a failure to elect on a date reasonably close to the date of the election
not held, suspended or which resulted in a failure to elect but not later than thirty days after
the cessation of the cause of such postponement or suspension of the election or failure to
elect.
The long-standing rule is that the nature of an action and the jurisdiction of the tribunal are
determined by law and the allegations in the petitions regardless of whether or not the
petitioners are entitled to the relief sought.25 The caption of the petitions are not
determinative of the nature thereof. In their amended petitions before the public
respondent, the respondents herein Abdusakur Tan, et al., the petitioners therein,
substantially alleged that the respondents therein who are the petitioners in this case were
the duly proclaimed winning candidates; that the elections in the Municipalities of Luuk,
Parang and Indanan, Province of Sulu, were marred by massive substitution of voters, fraud,
terrorism and other anomalies, impelling them to file their petitions pursuant to Section 4 of
Rep. Act No. 7166 in relation to Section 6, Omnibus Election Code, and reiterated in Section
2, Rule 2626 of the 1993 COMELEC Rules of Procedure, as amended. But Section 6 of the
Omnibus Election Code lays down three instances where a failure of election may be
declared, namely, (1) 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; (2) 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 (3) 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 cases. In all
instances there must have been a 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, the preparation and the transmission of the election returns, which give rise to the
consequence of failure to elect, must as aforesaid be literally interpreted to mean that
"nobody emerged as a winner."27
Hence, before the COMELEC can act on a verified petition seeking to declare a failure of
elections, 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.
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.28
In these cases, elections were held in the questioned municipalities. In fact, the very reason
why the respondents filed their amended petitions before the COMELEC on May 30, 2001
was to implead the petitioners as the respondents therein who had been proclaimed as the
winning candidates; hence, were indispensable parties to the petitions. In resolving the
amended petitions, the public respondent will have to rule on the validity of the
proclamation of the petitioners and their right to hold office and perform the duties
appurtenant thereto. The alleged fraud and irregularities, granting arguendo that they
indeed marred the elections, did not prevent or suspend the holding of the elections in the
aforementioned municipalities including the preparation and transmission of the election
returns. Indeed, these returns were duly canvassed by the respective municipal boards of
canvassers which prepared the corresponding certificates of canvass which were in turn
canvassed by the Provincial Board of Canvassers of Sulu which, after such canvass,
proclaimed the petitioners herein as the winning candidates in the May 14, 2001 elections.
In fine, elections had been conducted and winners had been already proclaimed. Even the
public respondent, no less, through the Office of the Solicitor General, stated in its comment
on the petition in G.R. Nos. 148575-76 that the amended petitions of the respondents did
not state a valid cause of action for a declaration of a failure of election and were
prematurely filed in this Court:
… After all the grounds relied upon by the petitioners in their petitions to declare a failure of
election, to wit: (1) voters were driven away through force and intimidation; (2) persons
other than registered voters filled up the official ballots; (3) flying voters were transported;
(4) voters were allowed to vote more than once; (5) watchers of the petitioners were not
allowed to exercise their rights and perform their duties; do not seem to clearly sustain a
declaration of a failure of election. It has been consistently held that there are only three (3)
instances where a failure of election may be declared, namely: (a) the election in any polling
place has not been held on the date fixed on account of force majeure, violence, terrorism,
fraud, or other analogous causes; (b) the election in any polling place had been suspended
before the hour fixed by law for the closing of the voting on account of force majeure,
violence, terrorism, fraud or other analogous causes; (c) after the voting and during the
preparation and transmission of the election returns or on 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 (Typoco, Jr. vs. COMELEC, 319 SCRA 498 [1999]).
In their two petitions, petitioners made no specific allegation as to the presence of any of
the three above-mentioned circumstances. They merely enumerated the various acts of
alleged terrorism and fraud. There was no allegation that due to said acts of terrorism and
fraud no election was actually held or that there was suspension of election or even if there
was election held, nobody emerged as a winner. On the contrary, it is apparent that there
was an actual election. What petitioners are saying is that it was not a valid and legitimate
elections. The issue is still pending determination of the COMELEC and the present petition
before this Honorable Court is therefore premature. This Court has made a pronouncement
in Bagatsing v. COMELEC, 320 SCRA 817 [1999] that it does not look with favor on the
practice of seeking remedy from the Supreme Court without waiting for the resolution of
the pending action before the tribunal below, absent extraordinary circumstances
warranting appropriate action by this Court.29
Moreover, the proclamation of the petitioners enjoys the presumption of regularity and
validity.30 To destroy the presumption, the respondents must convincingly show that the
petitioners’ victory was procured through extra-legal means. This they tried to do by alleging
matters in their petitions which they believed constituted grounds for a declaration of
failure of election, such as massive substitution of voters, fraud, terrorism,
disenfranchisement of voters, and other anomalies. The attendance of the alleged fraud and
irregularities in the elections as catalogued by the respondents, however, constitute merely
the causes or events which may give rise to the grounds to declare failure of elections,
namely, (a) no election held on the designated election date; (b) suspension of election
before the hour fixed by law for the closing of voting; and (c) election in any polling place
resulted in a failure to elect. But as aforesaid, the grounds cited by the respondents do not
fall under any of the instances under Section 6 of Rep. Act No. 7166, the winning candidates
having been proclaimed by the PBC. While fraud is a ground to declare a failure of election,
the commission of fraud must be such that it prevented or suspended the holding of an
election, including the preparation and transmission of the election returns.31 It behooved
the public respondent to dismiss the amended petitions:
… In the fairly recent case of Tomas T. Banaga, Jr. v. Commission on Elections, et al. with a
factual backdrop similar to this case, the Court held:
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.
Private respondent alleged in his petition with the COMELEC En Banc that the elections
ensued in the subject precincts and that petitioner herein emerged as the winner and was in
fact proclaimed as such by the Board of Election Inspectors.
In sum then, the grounds alleged by the private respondent in his petition before the
COMELEC are those for a regular election protest and are not proper in a pre-proclamation
controversy; nor is such petition one for annulment of the elections or for a declaration of
failure of elections in the municipality of Saguiaran, Lanao del Sur. The COMELEC should
have ordered the dismissal of the petition instead of issuing the assailed order. The
COMELEC thus committed a grave abuse of its discretion amounting to excess or lack of
jurisdiction in issuing the same. The error is correctible by the special civil action for
certiorari.32
Reliance by the respondents of the ruling of this Court in Soliva v. COMELEC33 is misplaced.
In that case, the Court ruled that the petition to declare a failure of election filed with the
public respondent was proper despite the proclamation of the winning candidates because
the grounds alleged in the petitions and proved during trial were that the counting of the
votes and the canvassing of the election returns were attended by fraud, intimidation,
terrors and harassment. In this case, there was no allegation of fraud, terror, intimidation
and harassment in the counting of votes and the canvassing of election returns.
Accordingly, the public respondent’s subsequent October 3, 2001 and April 17, 2002
Resolutions allowing the technical examination of the voters registration records for the
Municipalities of Parang, Indanan and Luuk were actions tainted with grave abuse of
discretion amounting to excess or lack of jurisdiction correctible by a cert writ.
We are not saying that the public respondent is precluded at all times from allowing the
technical examination of the voters registration records. In Loong v. COMELEC, we held that
"the COMELEC is duty-bound to investigate allegations of fraud, terrorism, violence and
other analogous causes in actions for annulment of election results or for declaration of
failure of elections, as the Omnibus election Code denominates the same. Thus, the public
respondent, in the case of actions for annulment of election results or declaration of failure
of elections, may conduct a technical examination of election documents and compare and
analyze voters’ signatures and fingerprints in order to determine whether or not the
elections had indeed been free, honest and clean."34 However, the exercise of this
authority presupposes that the petition has properly been acted upon on account of the
existence of any of the grounds provided under Section 6 of the Omnibus Election Code.
Where, as in this case, elections had been held and winners had been duly proclaimed, the
proper recourse of the respondents should have been to file regular election protest cases
to ventilate the veracity of the alleged election fraud and irregularities of the election in the
subject precincts with the consequent determination and declaration of the real winners in
the elections. The recall by the public respondent of its June 20, 2001 Order is justified by
case law. Thus, the public respondent may suspend or annul a proclamation only in three
instances, including pre-proclamation controversies, but not in a petition for a declaration of
failure of an election. As held by us in Dagloc v. COMELEC,35 thus:
The filing of pre-proclamation controversies under §248 of the Omnibus Election Code,
however, is not the only ground for the suspension of proclamation. Two other instances
are provided in R.A. No. 6646, known as "The Electoral Reforms Law of 1987," viz.: (1) Under
§6 of the statute, the COMELEC may, upon motion of the complainant in an action for
disqualification, suspend the proclamation of the winning candidate if the evidence of his
guilt is strong, and (2) under §7 thereof, the COMELEC may likewise suspend the
proclamation of the winning candidate if there is ground for denying or canceling his
certificate of candidacy.…36
Anent the validity of the Order of the public respondent dated June 28, 2001, the
respondents aver that the public respondent committed a grave abuse of its discretion in
recalling its order annulling the proclamation of the petitioners as the winning candidates.
The respondents insist that the public respondent is empowered to annul a proclamation of
the winning candidates or to suspend such proclamation. The OSG, for its part, agreed that
the public respondent is vested with authority to suspend the proclamation of the winning
candidates or to annul such proclamation but contend that the public respondent may in
the exercise of its discretion allow such proclamation or set aside its order annulling the
proclamation of the winning candidates, ratiocinating that:
The question now is whether the COMELEC can validly recall or set aside an earlier order to
suspend proclamation issued as preliminary relief in a petition for declaration of failure of
election and/or annulment of election results.
While we agree with the petitioner that the COMELEC can suspend the proclamation
pending the resolution of the petition to declare a failure of election, the same order,
however, is merely provisional in nature and can be lifted when the evidence so warrants. In
Nolasco v. COMELEC, 275 SCRA 762 [1997], it is said to be akin to a temporary restraining
order which a court can issue ex-parte under exigent circumstances.
The petitioner would like to impress upon the court that the COMELEC merely recalled its
earlier order of suspension of proclamation without any motion for reconsideration. Such is
not correct. During the hearing on June 28, 2001, when the parties pre-marked their
respective evidence, the respondents also raised the motion and prayer to recall and/or lift
the June 20, 2001 Order.1âwphi1 The parties then agreed to have the matter immediately
considered by the COMELEC in view of the proximity of the June 30, 2001 termination of the
term of office of the (then) incumbent elective officials of the Province of Sulu.37
We agree with the OSG. The respondents failed to show that the public respondent
committed a grave abuse of its discretion amounting to excess or lack of jurisdiction in
issuing its June 28, 2001 Order.
IN LIGHT OF ALL THE FOREGOING, the petitions in G.R. Nos. 148575-76 are DISMISSED. The
Order of the COMELEC dated June 28, 2001 is AFFIRMED.
The petitions in G.R. Nos. 152882-83 are GRANTED. The Orders of the COMELEC dated
October 3, 2001 and April 17, 2002 are SET ASIDE, and the COMELEC is directed to dismiss
SPA No. 01-257 and SPA No. 01-265. No costs.
SO ORDERED.
Distinction between an action for declaration of failure of election and a pre-proclamation
controversy
G.R. Nos. 152151-52 January 22, 2003
SAADUDDIN M. ALAUYA, JR., petitioner,
vs.
COMMISSION ON ELECTIONS, SHALIMAR H. TAMANO and USMAN T. SARANGANI,
respondents.
CARPIO, J.:
The Case
Before us is a petition for certiorari and prohibition with a prayer for the issuance of a writ
of preliminary injunction or temporary restraining order to nullify the Orders of the
Commission on Elections ("COMELEC" for brevity) en banc dated January 2, 2002 and
February 19, 2002 in SPA Nos. 01–454 and 01–455 (ARMM). The January 2, 2002 Order
directed the Provincial Board of Canvassers not to proclaim the winning candidates for
regional assemblyman in the 2nd District of Lanao del Sur, while the February 19, 2002
Order denied the motion to dismiss SPA Nos. 01–454 and 01–455 (ARMM).
The Facts
Regular elections for regional governor, regional vice-governor, and members of the
Regional Legislative Assembly for the Autonomous Region in Muslim Mindanao ("ARMM"
for brevity) were held on November 26, 2001. The first three (3) candidates for
assemblyman of the ARMM receiving the highest number of votes in each legislative district
of the province were to be proclaimed winners.
The 2nd District of the province of Lanao del Sur is composed of 21 municipalities. There
was a failure of election in the municipality of Lumbatan necessitating the holding of special
elections in Lumbatan on January 7, 2002. Nevertheless, the Provincial Board of Canvassers
proclaimed Alexander Menor ("Menor" for brevity), who garnered the highest number of
votes based on the results of the 20 other municipalities. Considering the number of
registered voters in Lumbatan, the special elections would not affect Menor's election as
regional assemblyman.
On December 21, 2001, private respondent Shalimar H. Tamano ("Tamano" for brevity) filed
two (2) petitions, docketed as SPA Nos. 01–454 and 01–455, to declare a failure of election
in the 5 municipalities of Madalum, Madamba, Sultan Gumander, Bacolod Kalawi, and
Bayang of the province of Lanao del Sur. Tamano claimed there was massive substitute
voting in these 5 municipalities. Tamano also claimed that in almost all of the precincts in
these 5 municipalities, either petitioner Saaddudin M. Alauya, Jr. ("Alauya" for brevity) or
private respondent Usman T. Sarangani ("Sarangani" for brevity) obtained 100% of the votes
such that their votes equalled the total number of registered voters. Tamano prayed for the
suspension of proclamation of the winning candidates. Alauya filed his Answer with Motion
to Dismiss. Sarangani filed his Answer and Opposition to the Suspension of Proclamation.
The special elections in Lumbatan proceeded as scheduled on January 7, 2002. The
Provincial Board of Canvassers canvassed the election returns. The results of the canvass of
Lumbatan and of the other 20 municipalities showed Menor as the No. 1 winning candidate
followed by Sarangani in the No. 2 spot and Alauya in the No. 3 spot, as follows:

On January 7, 2002, the COMELEC en banc issued the order directing "the Provincial Board
of Canvassers NOT to proclaim the alleged or supposed winners and to continue and
complete the canvass of election results in the Second District of Lanao del Sur."
On January 9, 2002, Alauya filed a Motion to Lift Suspension of Proclamation with the
COMELEC. Sarangani followed suit with a similar motion on January 28, 2002. Alauya filed
three (3) motions on January 24, 31, and February 6, 2002, praying for the resolution of the
Motion to Dismiss and the Motions to Lift the Suspension of Proclamation.
In its order dated February 19, 2002, the COMELEC resolved to assume jurisdiction and to
continue hearing SPA Nos. 01–454 and 01–455. The COMELEC also considered the motion to
lift suspension of proclamation submitted for resolution.
Alauya filed the present petition for certiorari and prohibition with a prayer for a writ of
preliminary injunction or temporary restraining order on March 1, 2002. On March 5, 2002,
the Court required the respondents to comment on the petition.
On March 12, 2002, Alauya filed a motion reiterating the prayer for the issuance of a
temporary restraining order. On March 19, 2002, the Court issued a temporary restraining
order directing the COMELEC "to CEASE and DESIST from implementing the order of January
7, 2002 in SPA No. 01–454 and SPA No. 01–455 which suspended the proclamation insofar
only as the petitioner (Alauya) is concerned."
Based on the restraining order of the Court, the Provincial Board of Canvassers proclaimed
Alauya who took his oath and has already assumed the position of Regional Assemblyman of
the Regional Legislative Assembly of the ARMM.
Meanwhile, Sarangani filed his comment joining Alauya in his petition praying for the
setting, aside of the subject COMELEC orders. Specifically, Sarangani prays that the order
suspending proclamation be extended to him so he may also take his oath and assume
office as regional assembly member.
The Issues
Alauya attributes grave abuse of discretion amounting to lack of or in excess of jurisdiction
to the COMELEC for the following reasons:
1. THE RESULTS OF THE 5 MUNICIPALITIES SOUGHT TO BE ANNULLED DO NOT AFFECT THE
ELECTION OF THE PETITIONER AS THE NO. 3 WINNING REGIONAL ASSEMBLYMAN OF THE
2ND DISTRICT OF LANAO DEL SUR. SEC. 20 (i) AND SEC. 21, OF R.A. 7166 SPECIFICALLY
PROVIDE THAT A WINNING CANDIDATE SHALL BE PROCLAIMED IF THE ISSUES RAISED DO
NOT AFFECT THE RESULTS OF THE ELECTION;
2. THE ORDER OF JANUARY 7, 2002 WAS ISSUED IN VIOLATION OF DUE PROCESS OF LAW.
SEC. 242 OF THE OMNIBUS ELECTION CODE PROVIDES THAT THE COMELEC COULD ONLY
SUSPEND PROCLAMATION "AFTER DUE NOTICE AND HEARING." x x x;
3. THE COMELEC HAS NO JURISDICTION OVER SPA NOS. 01–454 AND 01–455 SEEKING TO
ANNUL THE ELECTIONS OF THE 5 MUNICIPALITIES BECAUSE SEC. 3 OF R.A. 7647 PROHIBITS
"PRE-PROCLAMATION CASES" IN THE ELECTIONS OF REGIONAL ASSEMBLYMAN OF THE
AUTONOMOUS REGION OF MUSLIM MINDANAO.
Simply put, the issues posed for resolution by this Court are: (1) whether the Order dated
January 7, 2002 was issued in violation of due process of law; (2) whether the COMELEC has
jurisdiction over SPA Nos. 01–454 and 01–455; and (3) whether the order suspending
proclamation of the "alleged" winning candidates is void because the results of the 5
municipalities do not affect Alauya's election as No. 3 Regional Assemblyman of the ARMM.
The Solicitor General, for his part, maintains that the petition should be dismissed for lack of
merit for the following reasons: (1) there was no violation of due process since Section 242
of the Omnibus Election Code empowers the COMELEC to motu proprio suspend the
proclamation or annul the proclamation if one has already been made as the evidence shall
warrant; (2) Alauya confuses a pre-proclamation controversy with a petition to declare a
failure of election or to annul election results; and that (3) the COMELEC has the
constitutional authority to declare a failure of election pursuant to Article IX-C, Section 2 of
the 1987 Constitution and in accordance with Section 6 of the Omnibus Election Code and
Section 4 of R.A. 7166.
The Court's Ruling
First issue: whether the order dated January 7, 2002 was issued in violation of due process
of law.
Alauya claims that the COMELEC did not notify him of any hearing conducted prior to the
issuance of the order dated January 7, 2002 in violation of Section 242 1 which requires
notice and hearing prior to the suspension of proclamation.
A party cannot successfully invoke deprivation of due process if he was accorded the
opportunity of a hearing, through either oral arguments or pleadings. 2 There is no denial of
due process when a party is given an opportunity through his pleadings. 3
We find no breach of Alauya's right to due process. Contrary to Alauya's claim, it appears
that notices dated December 21, 2001 were given to all concerned parties requiring them to
file their answer to the petition and setting the case for hearing, on January 4, 2002. In an
Order dated January 4, 2002, the COMELEC noted that Alauya did not appear during the
hearing. Subsequently, Alauya filed his Answer with Motion to Dismiss to the petitions.
Verily, Alauya was given an opportunity to be heard during the hearing held on January 4,
2002 which he failed to attend and was in fact heard through the pleadings he filed with the
COMELEC.
Second issue: whether the COMELEC has jurisdiction over SPA Nos. 01–454 and 01–455.
Alauya questions the power and authority of the COMELEC to take cognizance and act on
SPA Nos. 01–454 and 01–455 on the ground that "pre-proclamation cases" in the election of
regional assemblyman in the ARMM are not allowed by Section 3 of R.A. 7647 4 and Section
15 of R.A. 7166. 5
Alauya erroneously considers SPA Nos. 01–454 and 01–455 as pre-proclamation
controversies. These petitions were filed under Section 6 of the Omnibus Election Code 6 for
a declaration of failure of election. The petitions clearly state their nature, as they are
denominated "IN THE MATTER OF THE PETITION TO DECLARE A FAILURE OF ELECTIONS OR
TO ANNUL THE RESULTS OF ELECTIONS IN THE MUNICIPALITIES OF SULTAN GUMANDER,
MADAMBA, BACOLOD KALAWI AND BAYANG, ALL IN THE 2ND DISTRICT OF THE PROVINCE
OF LANAO DEL SUR, AUTONOMOUS REGION OF MUSLIM MINDANAO" on account of the
"widespread, massive and rampant substitute voting and other electoral fraud, anomalies
and irregularities which prevented duly registered voters from actually voting in the regional
elections."
Dagloc v. Commission on Election 7 reiterates the well-settled rule that an action for
declaration of failure of election cannot be confused with a pre-proclamation controversy,
thus:
"In Matalam vs. COMELEC, it was held that an action for a declaration of the failure of
election is not in the nature of a pre-proclamation controversy. The distinction between the
two actions was discussed by the Court in Loong vs. COMELEC in this wise:
While, however, the COMELEC, is restricted in pre-proclamation cases, to an examination of
the election returns on their face and is without jurisdiction to go beyond or behind them
and investigate election irregularities, the COMELEC is duty bound to investigate allegations
of fraud, terrorism, violence and other analogous causes in actions for annulment of
election results or for declaration of failure of elections, as the Omnibus Election Code
denominates the same. Thus, the COMELEC, in the case of actions for annulment of election
results or declaration of failure of elections, may conduct technical examination of election
documents and compare and analyze voters' signatures and fingerprints in order to
determine whether or not the elections had indeed been free, honest and clean. Needless
to say, a pre-proclamation controversy is not the same as an action for annulment of
election results or declaration of failure of elections."
Hence, we find that the COMELEC did not commit grave abuse of discretion in assuming
jurisdiction over said petitions.
Third issue: whether the suspension of proclamation is void because the results
of the 5 municipalities do not affect Alauya's election.
According to Alauya, the results of the canvassing of the election returns from the 21
municipalities of the 2nd District of Lanao del Sur show that he is the No. 3 winning regional
assemblyman as follows:
The results of the canvassing of the election returns of the 5 municipalities sought to be
annulled by Tamano are as follows:

Alauya argues that the above results of the 5 municipalities do not affect his election as the
No. 3 winning Regional Assemblyman of the ARMM. Without the 5 municipalities, the
results are:
Alauya invokes Section 20 (i) 8 and Section 21 9 of R.A. 7166 which provide that a winning
candidate must be proclaimed if the issues raised do not affect the results of the election.
Moreover, he contends that the proclamation of the winning candidates will not deprive the
COMELEC of its authority to continue hearing the petitions to declare a failure of election in
the 5 municipalities.
These figures are not controverted by Tamano or the Solicitor General acting on behalf of
the COMELEC. However, simply deducting the election results of the 5 municipalities from
the election results of the other 16 municipalities does not necessarily establish Alauya's
theory that the over-all election results will not change. In case the COMELEC declares a
failure of election in the 5 municipalities, special elections will have to be conducted. We
cannot discount the possibility that the results of the special elections may still change the
standing of the candidates. There is no allegation as to how many registered voters there
are in the 5 municipalities. The number could not be determined from the figures submitted
by Alauya as some registered voters may have voted for three, two or only one candidate.
There is no certainty that the election results in the 5 municipalities, before or after the
special elections, will not affect the results in the 16 other municipalities absent any
allegation on the total number of registered voters in the contested municipalities.
Nevertheless, the COMELEC has already proclaimed Alexander Menor as the No. 1 winning
candidate. The court issued a temporary restraining order directing the COMELEC to cease
and desist from implementing the suspension of proclamation insofar as Alauya is
concerned. Thus, Alauya has since been proclaimed, took his oath and assumed office. This
Court has emphasized that public policy frowns on attempts to "grab-the-proclamation and
prolong-the protest." 10 However, this policy has to be balanced against the clear and
present dangers created by a lengthy period of non-proclamation of winners, a period
commonly fraught with tension and danger for the public at large. 11
Impleaded as private respondent in this petition, Sarangani, in his comment to the petition,
seeks, affirmative reliefs similar to those prayed for by Alauya, including the nullification of
the order suspending proclamation. The Court cannot grant Sarangani any affirmative relief
as he did not file a petition questioning the orders of the COMELEC. As Sarangani did not
contest the orders of the COMELEC before this Court through a petition for certiorari, no
affirmative relief can be sought by him. 12 It is axiomatic that a party who does not
ordinarily appeal, or as in this case file a petition for certiorari, from the orders of the
COMELEC, is not entitled to any affirmative relief. 13
WHEREFORE, the petition is DISMISSED, The COMELEC is directed to act with deliberate
speed in resolving the petitions to annul the elections or declare a failure of elections in the
5 municipalities. If the COMELEC does not declare a failure of election, the proclamation of
the winning candidates should be done with utmost dispatch based on the canvassed
election returns from the 21 municipalities of the 2nd District of Lanao del Sur.
SO ORDERED.
Remedy after winning candidate has been proclaimed
[G.R. No. 105227. September 18, 1992.]
LEANDRO I. VERCELES, Petitioners, v. COMMISSION ON ELECTIONS,
MUNICIPAL BOARD OF CANVASSERS OF VIRAC, CATANDUANES, and
THE PROVINCIAL BOARD OF CANVASSERS OF
CATANDUANES, Respondents.
[G.R. Nos. 105870-74. September 18, 1992.]
BENJAMIN U. BORJA, JR., Petitioner, v. COMMISSION ON ELECTIONS,
MUNICIPAL BOARD OF CANVASSERS OF PATEROS, METRO MANILA,
and JOSE T. CAPCO, JR., Respondents.
[G.R. No. 105939. September 18, 1992.]
ATTY. OMBAWA B. MADUM, Petitioner, v. COMMISSION ON
ELECTIONS, CITY BOARD OF CANVASSERS OF MARAWI, and ATTY.
ABBAS M. BASMAN, Respondents.
Romeo A. Tablizo for petitioner in G.R. No. 105227.
D. Dan-Rambo Macarambon for petitioner in G.R. No. 105939.
Delfin N. Gramata for petitioner in G.R. Nos. 105870-74
SYLLABUS
1. ELECTION LAW; PRE-PROCLAMATION CASES; SHALL BE DEEMED
TERMINATED WHEN THE PROCLAIMED ELECTED OFFICIALS COMMENCED
THEIR TERM. — It appearing that no restraining order was issued in theses
cases and the winning candidates have already been proclaimed, these pre-
proclamation issues have thereby been rendered moot and academic when
the proclaimed elected officials commenced their terms in the afternoon of
June 30, 1992, pursuant to Section 16 of R.A. 7166, which provides: "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."
cralaw virtua1aw library
2. ID.; ID.; MAY BE DISMISSED WITHOUT PREJUDICE TO FILING REGULAR
ELECTION PROTEST. — The petitions in case at bar to the extent that they
involve pre-proclamation controversies are hereby dismissed without
prejudice to filing regular election protests in accordance with Our resolution
in Sarmiento v. COMELEC and other cases of the same nature and
promulgated on the same date. The running of the period of filing protests
shall be deemed suspended by the pendency of these cases.
RESOLUTION
BELLOSILLO, J.:
In G.R. No. 105227, petitioner Leandro Verceles, candidate for Governor of
Catanduanes, seeks to annul Resolution No. 92-1485 of respondent
Commission on Elections (COMELEC) En Banc of May 14, 1992, which
enjoined the City/Municipal Board of Canvassers from ruling on objections to
election returns relating to provincial offices, for being violative of the
Omnibus Election Code and R.A. No. 7166.
In G.R. Nos. 105870-74, petitioner Benjamin Borja, Jr., candidate for mayor
of Pateros, seeks to set aside the Resolution of the COMELEC En Banc dated
June 27, 1992, which denied his appeals for exclusion of certain election
returns and directed the Municipal Board of Canvassers to complete canvass
and proclaim winners despite the pendency of disqualification proceedings
against respondent Capco, Jr. chanroblesvirtualawlibrary
In G.R. No. 105939, petitioner Ombawa Madum, a mayoralty candidate in
Marawi City, questions COMELEC Resolution No. 2489 of June 29, 1992,
which dismissed his petition for recount of votes in 35 precincts and to
declare failure of election in four others, paving the way for the proclamation
of respondent Basman as elected mayor.
These cases are consolidated as they involve pre-proclamation controversies,
to wit: G.R. No. 105227 assailing the legality of the proceedings of the
Municipal Board of Canvassers of Catanduanes; G.R. Nos. 105870-74 for
exclusion of certain election returns of Pateros, M.M.; and, G.R. No. 105939
for the recount of votes in 35 precincts in Marawi City.
It appearing that no restraining order was issued in theses cases and the
winning candidates have already been proclaimed, these pre-proclamation
issues have thereby been rendered moot and academic when the proclaimed
elected officials commenced their terms in the afternoon of June 30, 1992,
pursuant to Section 16 of R.A. 7166, which provides: cralawnad

"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."
cralaw virtua1aw library
While the issue of failure of election in G.R. No. 105939 may proceed
conformably with Our ruling in Jardiel v. COMELEC and Aves, 1 the same
must, nevertheless, be dismissed as it does not appear from the petition that
the number of votes affected by the annulment of election in four (4)
precincts would materially alter the result of the elections.
WHEREFORE, the foregoing petitions to the extent that they involve pre-
proclamation controversies are hereby dismissed without prejudice to filing
regular election protests in accordance with Our resolution in Sarmiento v.
COMELEC and other cases of the same nature and promulgated on the same
date. 2 The running of the period of filing protests shall be deemed
suspended by the pendency of these cases.
G.R. No. 105939, insofar as the issue of failure of election is concerned, is
dismissed for lack of merit.
Narvasa, C.J., Padilla, Bidin, Griño-Aquino, Medialdea, Regalado, Davide, Jr.,
Romero, Nocon and Melo, JJ., concur.
Gutierrez, Jr., Cruz and Feliciano, JJ., are on leave.
Campos, Jr., J., took no part.
Remedy after winning candidate has been proclaimed
A.M. No. MTJ-00-1250 February 28, 2001
[Formerly OCA IPI No. 97-332-MTJ]
RIMEO S. GUSTILO, complainant,
vs.
HON. RICARDO S. REAL, SR., Presiding Judge, 2nd Municipal Circuit Trial Court of Victorias-
Manapla, Negros Occidental, respondent.
QUISUMBING, J.:
In a verified complaint1 dated June 15, 1997, Rimeo S. Gustilo charged respondent Judge
Ricardo S. Real, Sr., of the Municipal Circuit Trial Court of Victorias-Manapla, Negros
Occidental with gross misconduct, gross incompetence, gross ignorance of the law, and
violation of the Anti-Graft and Corrupt Practices Act relative to Civil Case No. 703-M entitled
"Weddy C. Libo-on v. Rimeo S. Gustilo, et al. " for recounting of ballots of Precinct Nos. 27
and 27-A, Barangay Punta Mesa, Manapla, Negros Occidental.
Complainant avers that he was a candidate for punong barangay of Barangay Punta Mesa,
Manapla, Negros Occidental in the May 12, 1997 elections. His lone opponent was Weddy C.
Libo-on, then the incumbent punong barangay and the representative of the Association of
Barangay Captains (ABC) to the Sangguniang Bayan of Manapla and the Sangguniang
Panlalawigan of Negros Occidental. Both complainant and Libo-on garnered eight hundred
nineteen (819) votes during the elections, resulting in a tie. The breaking of the tie by the
Board of Canvassers was in complainant's favor and he was proclaimed duly elected punong
barangay of Punta Mesa, Manapla.2
On May 20, 1997, his opponent filed an election protest case, docketed as Civil Case No.
703-M, before the MCTC of Victorias-Manapla, Negros Occidental. Libo-on sought the
recounting of ballots in two precincts, preliminary prohibitory injunction, and
damages.1âwphi1.nêt
On May 21, 1997, respondent ordered the issuance of summons to the parties and set the
hearing on June 6, 1997.3
On May 27, 1997, however, Libo-on filed a motion to advance the hearing to May 29 and 30,
1997.
The next day, respondent granted Libo-on's motion. The hearing was advanced to May 29
and 30, 1997 cancelling the hearing for June 6, 1997.4 Complainant avers that he was not
furnished a copy of this Order dated May 28, 1997.
On May 29, 1997, respondent judge issued a temporary restraining order (TRO) and
annulled the proclamation of complainant as the duly elected punong barangay of Punta
Mesa, Manapla.5 Complainant declares that no copy of this Order dated May 29, 1997 was
served on him. That same day, however, he was able to secure copies of the orders of
respondent dated May 28 and May 29, 1997 from the COMELEC Registrar of Manapla,
Negros Occidental and the Department of Interior and Local Government (DILG). Moreover,
it was only in the afternoon of May 29, 1997 that complainant received a copy of Libo-on's
petition in Civil Case No. 703-M and respondent's Order dated May 21, 1997.
On May 30, 1997, complainant took his oath of office as punong barangay.6 That same day,
he also filed a petition for certiorari before the Regional Trial Court of Silay City, Negros
Occidental, Branch 69 docketed as Special Civil Action No. 1936-69.
On June 5, 1997, the RTC lifted the TRO issued by respondent and declared as null and void
the order nullifying complainant's proclamation as duly elected punong barangay.7
Believing that respondent could not decide Civil Case No. 703-M impartially, complainant
moved for his inhibition.
On June 11, 1997, respondent denied complainant's motion for inhibition and after hearing
Libo-on's motion for permanent injunction, issued a second TRO "to maintain the status quo
between the contending parties."8
Complainant argues that by issuing the second TRO, respondent reversed the order of the
RTC of Silay City dated June 5, 1997. He also claims that by preventing him from assuming
office, he was excluded by the DILG from participating in the election of the Liga ng Mga
Barangay on June 14, 1997.
In his Comment, respondent denied the allegations. He claimed that when Libo-on filed his
motion to advance the hearing of the prayer for injunction on May 27, 1997 in Civil Case No.
703-M, complainant was served a copy by registered mail as shown by the registry receipts
attached to said motion. Considering the urgency of the matter and since there was
substantial compliance with due process, he issued the Order of May 28, 1997 which
cancelled the hearing set for June 6, 1997 and advanced it to May 29 and 30, 1997.
Respondent claims that on May 29, 1997, Libo-on and his counsel appeared but complainant
did not, despite due notice. The hearing then proceeded, with Libo-on presenting his
evidence. As a result, he issued the TRO prayed for and annulled complainant's
proclamation. Respondent admits that the Order of May 29, 1997, particularly the
annulment of complainant's proclamation, was outside the jurisdiction of his court. But
since the COMELEC ignored Libo-on's petition for correction of erroneous tabulation and
Libo-on had no other remedy under the law, he was constrained to annul complainant's
proclamation, which from the very beginning was illegal. He justified his action by our
rulings in Bince, Jr. v. COMELEC, 312 Phil. 316 (1995) and Tatlonghari v. COMELEC, 199 SCRA
849 (1991), which held that a faulty tabulation cannot be the basis of a valid proclamation.
Respondent also faults the RTC of Silay City for issuing the Order dated June 5, 1997, which
lifted the TRO he issued and declared void his nullification of complainant's proclamation.
Respondent contends that complainant should first have exhausted all remedies in his court
before resorting to the special civil action for certiorari with the RTC. The latter court, in
turn, should have dismissed the action for certiorari for failure to exhaust judicial remedies.
With respect to his Order of June 11, 1997, respondent explains that it was never meant to
reverse the Order of the RTC of Silay City dated June 5, 1997. He points out that both parties
in Civil Case No. 703-M were present during the hearing after due notice. After receiving
their evidence, he found that unless a TRO was issued, Libo-on would suffer a grave injustice
and irreparable injury .He submits that absent fraud, dishonesty, or corruption, his acts,
even if erroneous, are not the subject of disciplinary action.
In its evaluation and recommendation report dated November 29, 1999, the Office of the
Court Administrator (OCA) found that respondent's errors were not honest mistakes in the
performance of his duties. Rather, his actions showed a bias in favor of Libo-on and "evinced
a pattern to prevent the complainant from assuming office as the duly elected punong
barangay despite his having been proclaimed as such by the Board of Canvassers." The OCA
recommends that respondent be fined P20,000.00 and warned that a repetition of similar
acts in the future will be dealt with more severely.
Supreme Court Administrative Circular No. 20-95 provides:
2. The application for a TRO shall be acted upon only after all parties are heard in a summary
hearing conducted within twenty-four (24) hours after the records are transmitted to the
branch selected by raffle. The records shall be transmitted immediately after raffle
(Emphasis supplied).
xxx
4. With the exception of the provisions which necessarily involve multiple-sala stations,
these rules shall apply to single-sala stations especially with regard to immediate notice to
all parties of all applications for TRO.
The foregoing clearly show that whenever an application for a TRO is filed, the court may act
on the application only after all parties have been notified and heard in a summary hearing.
In other words, a summary hearing may not be dispensed with.9 In the instant case,
respondent admits that he issued the injunctive writ sought on May 29, 1997 after receiving
the applicant's evidence ex parte. His failure to abide by Administrative Circular No. 20-95 in
issuing the first TRO is grave abuse of authority, misconduct, and conduct prejudicial to the
proper administration of justice.
Worse, he compounded the infraction by annulling complainant's proclamation as the duly
elected punong barangay of Punta Mesa, Manapla and prohibiting him from assuming
office. Respondent admits that his court was not vested with the power or jurisdiction to
annul the proclamation, but seeks to justify his action on the ground that the proclamation
was void ab initio. In so doing, respondent wantonly usurped a power exclusively vested by
law in the COMELEC.10 A judge is expected to know the jurisdictional boundaries of courts
and quasi-judicial bodies like the COMELEC as mapped out by the Constitution and statutes
and to act only within said limits. A judge who wantonly arrogates unto himself the
authority and power vested in other agencies not only acts in oppressive disregard of the
basic requirements of due process, but also creates chaos and contributes to confusion in
the administration of justice. Respondent, in transgressing the jurisdictional demarcation
lines between his court and the COMELEC, clearly failed to realize the position that his court
occupies in the interrelation and operation of the country's justice system. He displayed a
marked ignorance of basic laws and principles. Rule 3.01 of the Code of Judicial Conduct
provides that a "judge shall be faithful to the law and maintain professional competence."
By annulling complainant's proclamation as the duly elected punong barangay, despite
being aware of the fact that his court had no power to do so, not only is respondent guilty of
grave' abuse of authority, he also manifests unfaithfulness to a basic legal rule as well as
injudicious conduct.
Moreover, in willfully nullifying complainant's proclamation despite his court's want of
authority, respondent knowingly issued an unjust order.
Note that the RTC of Silay City corrected respondent's errors by declaring null and void his
Order dated May 29, 1997. Nonetheless, he compounded his previous errors of judgment by
proceeding to hear Libo-on's motion for permanent injunction and issuing a second TRO on
June 11, 1997 on the ground that "extreme urgency" and "grave injustice and irreparable
injury will arise" if no injunctive remedy were granted. Respondent insists that his act did
not reverse the Order of the RTC in Special Civil Action No.1936-69, since the second TRO he
issued satisfied the notice and hearing requirements of Circular No. 20-95.
Before an injunctive writ can be issued, it is essential that the following requisites be
present: (1) there must be aright in esse or the existence of a right to be protected; and (2)
the act against which injunction to be directed is a violation of such right.11 The onus
probandi is on movant to show that there exists a right to be protected, which is directly
threatened by the act sought to be enjoined. Further, there must be a showing that the
invasion of the right is material and substantial and that there is an urgent and paramount
necessity for the writ to prevent a serious damage.12 In this case, complainant had been
duly proclaimed as the winning candidate for punong barangay. He had taken his oath of
office. Unless his election was annulled, he was entitled to all the rights of said office. We do
not see how the complainant's exercise of such rights would cause an irreparable injury or
violate the right of the losing candidate so as to justify the issuance of a temporary
restraining order "to maintain the status quo." We see no reason to disagree with the
finding of the OCA that the evident purpose of the second TRO was to prevent complainant
from participating in the election of the Liga ng mga Barangay. Respondent must be held
liable for violating Rule 3.02 of the Code of Judicial Conduct which provides that, "In every
case, a judge shall endeavor diligently to ascertain the facts and the applicable law
unswayed by partisan interests, public opinion, or fear of criticism."
In a similar case, a judge was fined P5,000.00 for failure to observe the requirements of
Administrative Circular No. 20-95 when he issued a TRO enjoining a duly proclaimed
barangay captain from participating in the elections of officers of the ABC of Tart, Eastern
Samar.13 Note, however, that in the instant case, the respondent's infractions are not
limited to the mere issuance of a restraining order without conducting the summary
conference required by Administrative Circular No. 20-95. He also annulled the
proclamation of the complainant knowing very well that he had no such authority. When his
first restraining order was set aside and nullification of complainant's proclamation was
declared null and void by the RTC of Silay City, a superior court, he again issued a TRO, which
showed his partiality to complainant's political rival. Respondent is thus guilty of violating
Rules 3.01 and 3.02 of the Code of Judicial Conduct; knowingly rendering an unjust order;
gross ignorance of the law or procedure; as well as bias and partiality. All of the foregoing
are serious charges under Rule 140, Section 3 of the Rules of Court. We agree with the
sanction recommended by the OCA, finding it to be in accord with Rule 140, Section 10 (A)
of the Rules of Court.1âwphi1.nêt
WHEREFORE, this COURT finds respondent judge GUILTY of violating Rules 3.01 and 3.02 of
the Code of Judicial Conduct, knowingly rendering an unjust order, gross ignorance of the
law and procedure, and bias and partiality. Accordingly, a fine of Twenty Thousand Pesos
(P20,000.00) is hereby imposed upon respondent with a STERN WARNING that a repetition
of the same or similar acts will be dealt with more severely.
SO ORDERED.
Bellosillo, Mendoza, Buena, and De Leon, Jr., JJ., concur.
 The members of the MBC were summoned and directed to file their verified answer to
Remedy after winning candidate has been proclaimed Talib’s petition.2 They failed to file their Answer and, despite notice, they also failed to
attend the scheduled hearing of SPC No. 04-169. They also failed to submit the
G.R. No. 174551 March 7, 2007 memorandum required by the COMELEC.3 Talib, however, presented an affidavit4 signed by
Daryl Kinazo and Roy M. Cuevas, Chairman and Vice-Chairman, respectively, of the MBC of
MAYOR SALIP ALOY JAINAL, Petitioner, Indanan, Sulu to the effect that Indanan, Sulu was not their original station; that the stations
vs. of COMELEC personnel were re-shuffled and they were re-assigned to Indanan, Sulu
COMMISSION ON ELECTIONS, JULHATAB J. TALIB, and HUSSIN AHAJAN, CALLEJO, SR.,* because the election officer originally
Respondents.
assigned there for canvassing was nowhere to be found; that when they assumed their
DECISION duties as members of the MBC, they noticed that some election returns canvassed by them
were materially incomplete while others bore erasures.
TINGA, J.:
On 22 March 2005, the COMELEC (2nd Division) issued a Resolution,5 the dispositive portion
Before this Court is a Special Civil Action for Certiorari under Rule 65 of the Rules of Court of which reads:
involving certain issuances of the Commission on Elections (COMELEC) with prayer for the
issuance of temporary restraining order (TRO), status quo ante order and/or writ of WHEREFORE, premises considered, the instant petition is granted in part. The election
preliminary injunction. returns from the following precincts are hereby annulled:

Petitioner Mayor Salip Aloy Jainal and private respondent Julhatab J. Talib (Talib) were duly 1. Precinct 33A (Barangay Kagay)
certified candidates for Mayor of Indanan, Sulu in the 10 May 2004 elections. During the
canvassing, Talib objected to the inclusion of certain returns before the Municipal Board of 2. Precinct 34A (Barangay Kagay)
Canvassers (MBC). On 20 May 2004, petitioner was proclaimed by the MBC as the winning
candidate with an alleged margin of 1,018 votes. 3. Precinct 17A (Barangay Buansa)

On 23 May 2004, Talib filed a pre-proclamation case with the COMELEC, docketed as SPC 4. Precinct 18A (Barangay Buansa)
No. 04-169, praying for the annulment of election returns pertaining to twenty-one (21)
precincts, representing 3,788 votes, and for his proclamation as the Mayor of Indanan, Sulu. 5. Precinct 19A (Barangay Buansa)
Talib claimed that his official watchers were asked to leave the precincts before the counting
and the preparation of the election returns. Furthermore, the election returns for these 6. Precinct 20A (Barangay Buansa)
precincts did not bear the signatures of the members of the Board of Election
7. Precinct 21A (Barangay Buansa)
Inspectors (BEI) and his official watchers, a fact which indicates that said election returns
were manufactured. Talib also noted that the number of votes cast exceeded the number of 8. Precinct 22A (Barangay Buansa)
voters in Precinct Nos. 33A and 34A.
9. Precinct 9A/9B (Barangay Adjid)
Petitioner, in his memorandum,1 prayed for the dismissal of the Talib petition, contending
that the latter’s allegations were the proper subject of an election protest in the proper trial
court.
The proclamation of respondent Salip Aloy Jainal is likewise annulled. The vacancy in the
position of Indanan Mayor will be filled up pursuant to the applicable provisions of the Local
Government Code.
The Election Officer of Indanan is ordered to convene the Board of Election Inspectors in the
abovementioned precincts, after notifying the parties concerned and after ensuring that the
integrity of the ballot boxes and the ballots are not compromised, in order to recount the
ballots cast in the abovementioned precincts. After the recount, the new results will be
canvassed and the mayoralty winner proclaimed. If a recount is deemed not possible, he is
to make a report to the Commission so that a special election may be immediately
scheduled in the affected precincts.
Let a copy of this resolution be forwarded to the presiding judge of the Regional Trial Court
of Jolo, Sulu hearing Election Protest Case No. 5-4-04.6
SO ORDERED.7
On 1 April 2005, petitioner filed a Motion for Reconsideration8 of the COMELEC 2nd
Division’s 22 March 2005 Resolution. On 18 September 2006, the COMELEC en banc denied
reconsideration but modified the resolution of its 2nd Division by declaring the election
return pertaining to Precinct 9A9 of Barangay Adjid as valid.10 Hence, petitioner filed the
instant petition, including Hussi Ahajan (Ahajan) as private respondent in his capacity as
Vice-Mayor who, under the provisions of the Local Government Code, will fill up the vacancy
created by the annulment of petitioner’s proclamation.
On 8 November 2006 and 2 February 2007, Talib11 and Ahajan12 filed their Comments on
the Petition, respectively. On 5 December 2006, acting upon the Manifestation and Motion
filed by the Office of the Solicitor General, this Court excused it from filing a comment on
behalf of the COMELEC in accordance with Sec. 5, Rule 65 of the Rules of Court.13
The issues for resolution of this Court may be summarized as follows: (1) whether Talib
should have followed the procedure outlined in Sec. 20 of Republic Act (R.A.) No. 7166 for
contesting
election returns; (2) whether the order of the Regional Trial Court of Jolo, Sulu in Election
Protest Case No. 5-4-04 upholding petitioner’s proclamation as Mayor of Indanan, Sulu
precludes the COMELEC from issuing the assailed resolutions; (3) whether the COMELEC
observed the procedure outlined in Sec. 235 of Batas Pambansa Blg. 881 (Omnibus Election
Code) for annulling election returns; and (4) whether it was proper for the COMELEC to
"pierce-the-veil" of election returns.
In his Comment,14 Ahajan questions, as an additional issue, the validity of the 5 October
2006 Order of the COMELEC which directed him, as Vice-Mayor, or any ranking councilor to
cease and desist from assuming the position of Acting Mayor. Said Order was issued during
the pendency of the present petition and after Ahajan had already taken his oath and
assumed office as Acting Mayor15 pursuant to the COMELEC resolutions of 22 March 2005
and 18 September 2006.
On the first issue, petitioner contends that Talib should have followed the mandatory terms
of Sec. 20 of R.A. No. 716616 for contesting election returns by appealing to the COMELEC
with all the attached evidence and forms within the reglementary period.
Indeed, Sec. 20 of R.A. No. 7166 provides for the steps, outlined below, to be undertaken by
a party contesting the inclusion or exclusion of any election return:
1) Submitting oral objections and thereupon entering the objections in the form for written
objections to be prescribed by the COMELEC;
2) Submitting evidence in support of the objections within twenty-four (24) hours;
3) Informing the MBC of his intention to appeal from the MBC ruling on his objections;
4) Filing with the MBC a written and verified notice of appeal within forty-eight (48) hours
from suspension of the canvass, and taking an appeal to the COMELEC within an
inextendible period of five (5) days from filing the notice of appeal.
However, the provision also requires the MBC to perform certain acts, to wit:
1) Recording the oral objections in the minutes of the canvass;
2) Automatically deferring the canvass of the contested returns and proceeding to canvass
the uncontested returns;
3) Summarily and immediately ruling on the objections upon receipt of the evidence;
4) Entering its ruling in the prescribed form and authenticating the same;
5) Entering in the minutes of the canvass a party’s signified intention to appeal the ruling to
the COMELEC;
6) Suspending the canvass after canvassing all the uncontested returns and ruling upon the
contested returns; and
7) Making an appropriate report to the COMELEC immediately upon receipt of the notice of
appeal, elevating therewith the complete records and evidence submitted in the canvass,
and furnishing the parties with copies of the report.
Apparently relying on his bare allegation, petitioner does not state in what respect and on
what basis Talib failed to comply with Sec. 20 of R.A. No. 7166. It is incumbent upon
petitioner to prove the alleged non-compliance. In the absence of such proof, there is no
aspect in the proceedings before the MBC which legally precludes Talib from filing his
petition before the COMELEC in accordance with the COMELEC Rules of Procedure. In fact,
petitioner did not even raise this issue of non-compliance with Sec. 20 of R.A. No. 7166 in his
Answer17 and Memorandum18 filed before the COMELEC.
There is no dispute that Talib had objected to the inclusion of the election returns in
question before the MBC. Petitioner admitted this in his petition before this Court and in his
Memorandum submitted to the COMELEC.19 Petitioner further admitted that the MBC had
denied Talib’s petition to exclude the election returns. But the MBC thereafter proceeded to
canvass the election returns, including even the contested ones, contrary to Sec. 20 (b) of
R.A. No. 7166, which requires it to automatically defer the canvass of the contested returns.
And, as may be gathered from the results of such canvass, the MBC proceeded to proclaim
petitioner as the winner of the elections.20
Clearly, Talib did what was required of him by Sec. 20 of R.A. No. 7166 as far as the
circumstances would allow. He made oral objections to the inclusion of the election returns.
It was then incumbent on the MBC to immediately make a categorical ruling on the said
objections, even without the benefit of additional evidence considering that Talib’s basic
evidence consists of the questioned election returns themselves, as they clearly depict on
their face the stark absence of the printed names and signatures of the members of the BEI
in violation of Sec. 21221 of the Omnibus Election Code. Res ipsa loquitur. The thing speaks
for itself.
In view of the absence of the names and signatures of the members of the BEI on the
returns, the MBC was further duty bound to comply with Section 212 and Section 23422 of
the Omnibus Election Code. Said provisions respectively allow and require the MBC to
summon the members of the BEI to complete the election returns and/or correct the same
should it appear that some requisites in form or data are omitted in the election returns.
Assuming, however, that Sec. 20 of R.A. No. 7166 was not complied with, Talib cannot be
faulted or made to suffer for such non-compliance as it was the MBC who did not comply
with its duties under Sec. 20 of R.A. No. 7166. When Talib made his objections to the
inclusion of the contested election returns, there was no other recourse for the MBC except
to rule on the objections, suspend the canvass of the contested election returns, and
suspend the proclamation of petitioner, in that sequence. Instead of doing so, the MBC,
after ruling on the objections, included the contested returns in the canvass and
immediately proclaimed petitioner.
These actions of the MBC rendered it impossible for Talib to comply with Sec. 20 of R.A. No.
7166 any further. It should be noted that the forty-eight (48)-hour period for filing a verified
notice of appeal with the MBC is reckoned from suspension of the canvass. The appeal to
the COMELEC is also reckoned five (5) days from suspension of the canvass. Understandably,
Talib had no other recourse but to go directly to the COMELEC.
It is worthy of note that what was filed with and resolved by the poll body is a pre-
proclamation case. Pre-proclamation cases refer to any question pertaining to or affecting
the proceedings of the board of canvassers which may be raised by any candidate or by any
registered political party or coalition of political parties before the board or directly with the
Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the
preparation, transmission, receipt, custody and appreciation of election returns.23
The general rule is that a pre-proclamation case before the COMELEC is, logically, no longer
viable after a proclamation has been made.24 However, this rule admits of exceptions,25 as
when the proclamation is null and void. The proclamation of petitioner in this case is void
for three (3) reasons: (1) it was based on a canvass that should have been suspended with
respect to the contested election returns; (2) it was done without prior COMELEC
authorization which is required in view of the unresolved objections of Talib to the inclusion
of certain returns in the canvass; and (3) it was predicated on a canvass that included
unsigned election returns involving such number of votes as will affect the outcome of the
election. In this regard, it has long been recognized that among the reliefs that the COMELEC
may grant is to nullify a proclamation or suspend the effects of one.26
Parenthetically, the absence of the required signatures and thumbmarks rendered the
election returns concerned materially defective. The crucial circumstance also served as a
proper subject of a pre-proclamation controversy, particularly falling under paragraph (b) of
Section 243 of the Omnibus Election Code,27 which the COMELEC resolved in the assailed
issuances.
On the second issue, petitioner calls the attention of this Court to the 3 March 2005 order of
the Regional Trial Court of Jolo, Sulu in Election Protest Case No. 5-4-0428 upholding
petitioner’s proclamation as Mayor of Indanan, Sulu.29 He claims that the COMELEC en banc
should not have ignored the existence of the order in his motion for reconsideration
considering that the order is a judicial affirmation of his proclamation as such Mayor.
Note that Election Protest Case No. 5-4-04 is an election protest case filed by Isnaji, the third
candidate for the position of Mayor against petitioner and Talib. Being an election protest or
a post-proclamation case, it is markedly different from the case filed by Talib before the
COMELEC which is a pre-proclamation case.
Verily, the order of the trial court in the election protest case does not conflict with nor
diminish the legal effect of the COMELEC en banc Resolution of 18 September 2006,
invalidating eight (8) of the nine (9) questioned election returns. Particularly, the order is not
inconsistent with the directive of the COMELEC to the Election Officer of Indanan to convene
the BEI in the concerned precincts for a recount, after notice to the parties and after
ensuring that the integrity of the ballot boxes are not compromised. The order of the trial
court directed a dismissal of the election protest on a technicality, that is, for failure of Isnaji
as protestant to prosecute the protest.30 No election returns were examined and no ballots
revised. The questioned election returns could not have been examined before the trial
court because they were already with the COMELEC at that time in connection with Talib’s
pre-proclamation case. The trial court perfunctorily considered the report of the Revision
Committee and on that basis concluded that it was no longer necessary to continue with the
case because of petitioner’s "enormous lead" over Isnaji, not Talib.
Although denominated as a respondent in Election Protest Case No. 5-4-04, Talib could not
be expected to participate therein because of his pending pre-proclamation case with the
COMELEC. Had he participated in the election protest, his pre-proclamation case would have
been deemed abandoned because the general rule is that the filing of an election protest or
a petition for quo warranto precludes the subsequent filing of a pre-proclamation
controversy, or amounts to the abandonment of one earlier filed.31 Without a doubt, the
dismissal of Election Protest Case No. 5-4-04 could not have cast an adverse or prejudicial
effect on Talib’s pending pre-proclamation case.
On the third issue, petitioner contends that the COMELEC acted prematurely and
precipitately in annulling the questioned election returns as well as his proclamation as
Mayor, without first observing the procedure outlined in Sec. 235 of the Omnibus Election
Code. Said provision states:
Sec. 235. When election returns appear to be tampered with or falsified. ─ If the election
returns submitted to the board of canvassers appear to be tampered with, altered or
falsified after they have left the hands of the board of election inspectors, or otherwise not
authentic, or were prepared by the board of election inspectors under duress, force,
intimidation, or prepared by persons other than the member of the board of election
inspectors, the board of canvassers shall use the other copies of said election returns and, if
necessary, the copy inside the ballot box which upon previous authority given by the
Commission may be retrieved in accordance with Section 220 hereof. If the other copies of
the returns are likewise tampered with, altered, falsified, not authentic,
prepared under duress, force, intimidation, or prepared by persons other than the members
of the board of election inspectors, the board of canvassers or any candidate affected shall
bring the matter to the attention of the Commission. The Commission shall then, after giving
notice to all candidates concerned and after satisfying itself that nothing in the ballot box
indicates that its identity and integrity have been violated, order the opening of the ballot
box and, likewise after satisfying itself that the integrity of the ballots therein has been duly
preserved shall order the board of election inspectors to recount the votes of the candidates
affected and prepare a new return which shall then be used by the board of canvassers as
basis of the canvass.
Contrary to petitioner’s contention, the COMELEC fully complied with this Court’s
exhortation in Dagloc v. COMELEC32 that the above-quoted provision be followed to
ascertain the will of the electorate. Indeed, the COMELEC did not instantaneously nullify the
questioned election returns as claimed by petitioner. Utilizing the first procedure contained
in the first sentence of Sec. 235, the COMELEC used other copies of said suspect election
returns, namely the election returns submitted by Talib. When this was not enough, it even
resorted to an examination of the COMELEC copies. And when it was evident that the
election returns for the nine (9)33 precincts were manufactured or fabricated because the
printed names and signatures of the members of the BEI were absent, it was only then that
the COMELEC annulled the said election returns34 and petitioner’s proclamation.35 The
COMELEC thereafter ordered the Election
Officer of Indanan to convene the BEI in the concerned precincts for a recount, if possible, or
to report to the COMELEC the impossibility of a recount so that a special election can be
immediately scheduled. Clearly, the issuances of the COMELEC can hardly be described as
precipitate and premature.
Finally, the fourth issue. Petitioner claims that in the absence of strong evidence, the
election returns must be accorded prima facie status as bona fide reports on the count.
It is a well-entrenched rule in jurisprudence that in a pre-proclamation controversy, the
board of canvassers and the COMELEC are not to look beyond or behind election returns
which are on their face regular and authentic returns.36 In Chu v. COMELEC,37 aside from
reiterating the rule against piercing the veil of returns, this Court intimated that a pre-
proclamation case is the proper remedy if the defects and irregularities are apparent from a
physical inspection of the election returns.
In the case at bar, the COMELEC did not have to look at other evidence to conclude that the
election returns were manufactured because the defects were apparent on the face of the
election returns themselves. In fact, a detailed description of each questioned election
return was provided in the Resolution of the COMELEC (2nd Division).38
Before we close, we note with disapproval the action taken by petitioner when, on 3
October 2006, he filed with the COMELEC en banc the Extreme Urgent Ex-Parte
Manifestation, praying for an order suspending the implementation and execution of the 22
March 2005 and 18 September 2006 COMELEC resolutions. Clearly, the move is violative of
the prohibition against forum-shopping.
There is forum-shopping when a party seeks to obtain remedies in an action in one court,
which had already been solicited, and in other courts and other proceedings in other
tribunals.39 Forum-shopping, an act of malpractice, is considered as trifling with the courts
and abusing their processes. It is improper conduct and degrades the administration of
justice. If the act of the party or its counsel clearly constitutes willful and deliberate forum-
shopping, the same shall constitute direct contempt, and a cause for administrative
sanctions, as well as a ground for the summary dismissal of the case with prejudice.40
In the case at bar, the relief sought in the Extreme Urgent Ex-Parte Manifestation is basically
the same as the prayer for a temporary restraining order in the present petition which was
still pending resolution by this Court at the time the Extreme Urgent Ex-Parte Manifestation
was filed before the COMELEC. However, for as long as the present petition, including the
prayer for injunctive relief, pends before this Court, the assailed COMELEC resolutions
remain presumptively valid. With the filing of the present petition, only this Court has
jurisdiction to nullify the COMELEC resolutions or suspend their enforcement.
Another violation of the ban against forum-shopping lies in petitioner’s failure to inform this
Court of its filing of the Extreme Urgent Ex-Parte Manifestation with the COMELEC. Such
undertaking is prescribed by Sec. 5,41 Rule 8 of the Rules of Court and conformably with
such prescription, petitioner assumed the undertaking by executing the certification against
forum-shopping in the present petition.42
What is worse than petitioner’s forum-shopping is the poll body’s favorable action on
petitioner’s Extreme Urgent Ex-Parte Manifestation despite knowledge of the pending
petition with this Court. Such action on the part of COMELEC should not be countenanced
and deserves disapprobation.
Under Sec. 13, Rule 18 of the COMELEC Rules of Procedure, a decision or resolution of the
Commission en banc in Special Actions and Special Cases43 shall become final and executory
after five (5) days from its promulgation unless restrained by this Court. Clearly, the effects
of the 22 March 2005 and 18 September 2006 resolutions can no longer be suspended not
only because the resolutions are already final and executory but also because the power to
suspend enforcement lies only with this Court. Thus, in granting the motion and ordering
the Vice-Mayor or any ranking councilor to cease and desist from assuming the position of
Acting Mayor of Indanan, Sulu, it committed what amounts to a usurpation of this Court’s
prerogative that is to issue the TRO which is precisely one of the reliefs sought in the
present petition. It behooved the COMELEC en banc to deny or at least refuse to take action
on the Extreme Urgent Ex-Parte Manifestation.
Quite plainly, the 5 October 2006 order of the COMELEC En banc is null and void for having
been issued with grave abuse of discretion, without jurisdiction and in usurpation of this
Court’s prerogative and jurisdiction. Consequently, the COMELEC should be taken to task for
entertaining the Extreme Urgent Ex-Parte Manifestation and granting an injunctive relief
asked for therein despite a clear showing and despite its foreknowledge, of the forum-
shopping.44
With the nullification of petitioner’s proclamation, the position of Municipal Mayor of
Indanan, Sulu is vacant. The Local Government Code is clear on the matter of succession.
Sec. 44 of R.A. No. 7160 and Art. 83, Rule XIV of the Implementing Rules of the Local
Government Code governing vacancies and succession, quoted below, apply:
Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and
Vice Mayor. ─ If a permanent vacancy occurs in the office of the governor or mayor, the
vice-governor or vice-mayor concerned shall become the governor or mayor. If a permanent
vacancy occurs in the offices of the governor, vice governor, mayor or vice mayor, the
highest ranking sanggunian member or, in case of his permanent inability, the second
highest-ranking sanggunian member, shall become the governor, vice governor, mayor or
vice mayor as the case may be. Subsequent vacancies in the said office shall be filled
automatically by the other sanggunian members according to their ranking as defined
herein:
(b) If a permanent vacancy occurs in the office of the punong barangay, the highest ranking
sanggunian barangay member or, in case of his permanent inability, the second highest
ranking sanggunian member, shall become the punong barangay.
(c) A tie between or among the highest ranking sanggunian members shall be resolved by
the drawing of lots.
(d) The successors as defined herein shall serve only the unexpired terms of their
predecessors.
For purposes of this Chapter, a permanent vacancy arises when an elective local official fills
a higher vacant office, refuses to assume office, fails to qualify, dies, is removed from office,
voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of
his office.
For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be
determined on the basis of the proportion of votes obtained by each winning candidate to
the total number of registered voters in each district in the immediately preceding local
election. [Emphasis supplied.]
The Implementing Rules of the Local Government Code provides in Art. 83, Rule XIV:
Art. 83. Vacancies and Succession of Elective Local Officials. ─ (a) What constitutes
permanent vacancy - A permanent vacancy arises when an elective local official fills a higher
vacant office, refuses to assume office, fails to qualify, dies, is removed from office,
voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of
his office.
(b) Permanent vacancies in the offices of the governor, vice governor, mayor and vice mayor
–
(1) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor
or vice mayor concerned shall ipso facto become the governor or mayor. If a permanent
vacancy occurs in the offices of the governor, vice governor, mayor, or vice mayor, the
highest ranking sanggunian member or, in case of his permanent inability, the second
highest ranking sanggunian member, shall ipso facto become the governor, vice governor,
mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be
filled automatically by the other sanggunian members according to their ranking as defined
in this Article.
x x x x [Emphasis Supplied.]
Verily, the vacancy created by the nullification of petitioner’s proclamation is in the nature
of a permanent vacancy and may be qualified as a "permanent incapacity to discharge the
functions of his office." Ahajan’s assumption of the office of Mayor should be understood as
subject to the result of the recount to be conducted in accordance with the issuances of the
COMELEC. Thus, there is an immediate need for the COMELEC to speedily ascertain the true
will of the electorate in the eight (8) precincts whose election returns were nullified.
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1) The instant petition for certiorari is DISMISSED;
2) The Commission on Elections (2nd Division) Resolution dated 22 March 2005, as modified
by the Commission on Election (en banc) Resolution of 18 September 2006 in SPC No. 04-
169 is AFFIRMED;
3) The Commission on Elections is ORDERED to IMPLEMENT its RESOLUTION of 22 March
2005 as modified by its Resolution of 18 September 2006, and thereupon to REPORT on
such implementation to this Court, with deliberate dispatch;
4) The 5 October 2006 Order of the Commission on Elections en banc is NULLIFIED and SET
ASIDE, and the Commission on Elections is ADMONISHED to be more circumspect and
deferential to the standing and dignity of this Court in its dealings with the Court;
5) Private respondent Hussin Ahajan is ORDERED to assume the position of Acting Mayor of
Indanan, Sulu, pursuant to the applicable provisions of the Local Government Code, but
subject to the outcome of the recount to be concluded in accordance with the above-
mentioned Resolutions of the Commission on Elections; and
6) Petitioner and his counsel are REQUIRED to show cause, within five (5) days from notice,
why they should not be held in contempt by this Court for committing forum-shopping.
In view of the proximity of the next elections, this Decision is declared FINAL and
IMMEDIATELY EXECUTORY.
SO ORDERED.
Procedure in disposition of contested election returns
G.R. No. 134826 July 6, 1999
RENE CORDERO, petitioner,
vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF ESTANCIA, ILOILO;
and TRUMAN LIM, respondents.
RESOLUTION
PANGANIBAN, J.:
In pre-proclamation controversies, objections to the inclusion or exclusion of election
returns in the canvass must be reduced to writing in the form prescribed by the Commission
on Elections (Comelec). This requirement prescribed by Republic Act No. 7166 is mandatory;
any appeal of a ruling of the board of canvassers shall be summarily dismissed by the
Comelec, unless the accomplished forms and the supporting evidence are appended
thereto.
The Case
Before us is a petition for Certiorari under Rules 64 and 65 of the Rules of Court assailing the
Resolution 1 of the Commission on Elections (Second Division) 2 dated July 28, 1998, the
dispositive portion of which reads:
WHEREFORE, premises considered, this Commission (SECOND DIVISION), RESOLVES to
AFFIRM the rulings of the respondent Municipal Board of Canvassers including in its canvass
the election returns from the contested precincts. Respondent board is hereby DIRECTED to
RECONVENE and FINISH the canvassing of the remaining or uncontested returns and
thereafter, PROCLAIM the winning mayoralty candidate of Estancia, Iloilo.
In its Resolution 3 dated August 13, 1998, the Comelec en banc4 denied petitioner's motion
for reconsideration and affirmed the assailed Resolution.
Hence, this Petition. 5
The Facts
In the May 1998 elections, Rene Cordero and Truman Lim were candidates for mayor in the
Municipality of Estancia, Iloilo. During the canvassing of votes by the municipal board of
canvassers (MBOC), Petitioner Cordero contested, through his counsel, the inclusion of the
election returns from several precincts. 6 He objected on the ground that the returns were
tampered with, altered, manufactured and/or lacked material data. Despite these
objections, the MBOC included in the canvass the questioned election returns.1âwphi1.nêt
On May 25, 1998, petitioner appealed the MBOC action to the Comelec. On July 11, 1998,
he appealed another MBOC order for the inclusion of a different set of contested election
returns 7 in the canvass. In both appeals, he sought the exclusion of such returns.
Ruling of the Comelec
After finding that petitioner failed to comply with the procedure mandated in Section 36,
paragraphs c and h, of Comelec Resolution No. 2962 promulgated January 5, 1998, the
Comelec (Second Division) issued the assailed Resolution, affirming the MBOC rulings to
include in the canvass the election returns from the contested precincts. Pursuant to said
Resolution 2962, parties objecting to the inclusion of election returns in the canvass must
submit their written objections in the form prescribed by the Comelec, with the evidence in
support thereof; any appeal brought before the Comelec without the accomplished forms
and the evidence attached thereto shall be summarily dismissed. According to the Comelec,
the petitioner failed to attach to his appeals his written objections and the evidence in
support thereof. The dismissal of his appeals was therefore warranted. The poll body further
directed the MBOC of Estancia, Iloilo, to reconvene and finish the canvass and thereafter to
proclaim the winning candidate.
Petitioner filed a motion for reconsideration which, as earlier stated, the Comelec en banc
denied in its August 13, 1998 Resolution. Meanwhile, the MBOC of Estancia reconvened,
pursuant to the directive in the July 28, 1998 Resolution.
In his Petition filed before this Court, petitioner also prays for the issuance of a temporary
restraining order and/or a writ of preliminary injunction, to enjoin public respondent from
including in its canvass the contested election returns from the enumerated precincts and
from proclaiming the winning mayoralty candidate. Petitioner further seeks (1) the
nullification of the Comelec Resolution dated July 28, 1998; (2) the exclusion of the election
returns coming from the protested precincts, particularly Precinct Nos. 50-A, 50-A-1, 62-A
and 62-A-1, 64-A, 59-A and 60-A, 46-A, 56-A, 34-A, 51-A, 61-A, and 67-A; and (3) the
proclamation by the MBOC of the winning candidate based on the election returns that have
not been excluded.
On August 25, 1998, this Court issued a temporary restraining order commanding public
respondent "to CEASE and DESIST from proclaiming private respondent or the winning
mayoralty candidate for the Municipality of Estancia, Iloilo." But since private respondent
and the other winning municipal candidates had already been proclaimed as early as August
21, 1998, petitioner filed a motion before this Court to suspend the effects of the
proclamation of Private Respondent Lim as the duly elected mayor and to prevent him from
exercising the powers and the prerogatives of the Office of the Mayor. Conformably, this
Court, on September 1, 1998, issued another restraining order for "Respondent Truman Lim
to CEASE AND DESIST from assuming the office of the mayor of Estancia, Iloilo or should he
be presently occupying said office, to VACATE the same immediately."
Issues
Imputing errors to the Comelec Resolution, petitioner alleges:
a) That the Respondent Comelec erred in ordering that the protested election returns be
included in the canvass
b) That the Respondent Comelec erred in ruling that the appeal to the Comelec from the
ruling of the MBOC should be summarily dismissed because it is without the accomplished
forms and the evidence appended thereto
c) That the Respondent Comelec erred in finding that the petitioner failed to justify the
exclusion of the contested returns
d) That the Respondent Comelec erred in ignoring the affidavits submitted by the petitioner
in support of his appeals before the Respondent Comelec
e) That the Respondent Comelec erred in ordering the respondent MBOC Estancia to include
in the canvass the election returns from the contested precincts
In brief, the pivotal issue boils down to whether the Comelec gravely abused its discretion
(not "erred") 8 in dismissing the petitioner's appeals on the ground that he failed to attach
his written objections and other supporting evidence.
This Court's Ruling
The petition is devoid of merit.
Pivotal Issue:
Procedure in the Appeal of
Rulings of the Board of Canvassers
Petitioner asserts that the two separate appeals should not have been dismissed on the
basis of lack of supporting evidence, because at the time the first appeal was filed, the
MBOC had not yet issued any ruling that could be attached to the appeal. He adds that the
appeals were made precisely because the MBOC irregularly included in the canvass the
election returns that he had sought to be excluded.
In pre-proclamation controversies, the rules on presenting evidence and appealing the
rulings of the board of canvassers are mandatory. 9 The plain and simple procedure
prescribed is outlined in detail in Section 20 of Republic Act No. 7166, which reads:
Sec. 20. Procedure in Disposition of Contested Election Returns. — (a) Any candidate,
political party or coalition of political parties contesting the inclusion or exclusion in the
canvass of any election returns on any of the grounds authorized under Article XX or
Sections 234, 235 and 236 of Article XIX of the Omnibus Election Code shall submit their oral
objection to the chairman of the board of canvassers at the time the questioned return is
presented for inclusion in the canvass. Such objection shall be recorded in the minutes of
the canvass.
(b) Upon receipt of any such objection, the board of canvassers shall automatically defer the
canvass of the contested returns and shall proceed to canvass the returns which are not
contested by any party.
(c) Simultaneous with the oral objection, the objecting party shall also enter his objection in
the form for written objections to be prescribed by the Commission. Within twenty-four (24)
hours from and after the presentation of such an objection, the objecting party shall submit
the evidence in support of the objection, which shall be attached to the form for written
objections. Within the same period of twenty-four (24) hours after presentation of the
objection, any party may file a written and verified opposition to the objection in the form
also to be prescribed by the Commission, attaching thereto supporting evidence, if any. The
board shall not entertain any objection or opposition unless reduced to writing in the
prescribed forms.
The evidence attached to the objection or opposition, submitted by the parties, shall be
immediately and formally admitted into the records of the board by the chairman affixing
his signature at the back of each and every page thereof.

(d) Upon receipt of the evidence, the board shall take up the contested returns, consider the
written objections thereto and opposition, if any, and summarily and immediately rule
thereon. The board shall enter its ruling on the prescribed form and authenticate the same
by the signatures of its members.
(e) Any party adversely affected by the ruling of the board shall immediately inform the
board if he intends to appeal said ruling. The board shall enter said information in the
minutes of the canvass, set aside the returns and proceed to consider the other returns.
(f) After all the uncontested returns have been canvassed and the contested returns ruled
upon by it, the board shall suspend the canvass. Within forty-eight (48) hours therefrom,
any party adversely affected by the ruling may file with the board a written and verified
notice of appeal; and within an unextendible period of five (5) days thereafter, an appeal
may be taken to the Commission.
(g) Immediately upon receipt of the notice of appeal, the board shall make an appropriate
report to the Commission, elevating therewith the complete records and evidence
submitted in the canvass, and furnishing the parties with copies of the report.
(h) On the basis of the records and evidence elevated to it by the board, the Commission
shall decide summarily the appeal within seven (7) days from the receipt of said records and
evidence. Any appeal brought before the Commission on the ruling of the board, without
the accomplished forms and the evidence appended thereto, shall be summarily dismissed.
The decision of the Commission shall be executory after the lapse of seven (7) days from
receipt thereof by the losing party.
(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by
the Commission after the latter has ruled on the objections brought to it on appeal by the
losing party. Any proclamation made in violation hereof shall be void ab initio, unless the
contested returns will not adversely affect the results of the election.
Clearly, not only must the objecting party reduce his objections to writing in the form
prescribed by the Comelec; he must also present within 24 hours evidence in support
thereof. Under Subsection h, noncompliance with the mandatory procedure shall result in
the summary dismissal of the appeal, as in this case. In the petitioner lies the burden of
proving that he has a prima facie case and of presenting, at the same time, evidence that
the exclusion he seeks will change the results of the election. 10 A party's mere allegation
that an election return is spurious, altered or manufactured does not automatically operate
to exclude it from the canvassing. 11
The summary nature of a pre-proclamation controversy allows it to be resolved on the basis
of the argument as well as the evidence submitted by the parties 12 within the period
allowed by law. Thus, the importance of appending the evidence that will substantiate one's
objections. Absent any clear and convincing evidence, the election returns and the
canvassing proceedings must be upheld. Mere affidavits cannot be relied on. 13 Two years
ago, this Court had occasion to rule that election controversies based on flimsy averments
could not be allowed to prosper; "otherwise, the whole election process will deteriorate
into an endless stream of crabs pulling at each other, racing to disembark from the water."
14
Indeed, reducing the objections to writing and submitting them with the supporting
evidence is crucial to the delivery of speedy and equitable relief in pre-proclamation
controversies. Unless this requirement is meticulously observed, the Comelec will not be
able to determine the prima facie merit of the appeal, and the controversy will be unduly
prolonged.
Moreover, absent any showing of grave abuse of discretion, findings of facts of the Comelec,
or any other administrative agency exercising particular expertise in its field of endeavor,
are binding on this Court. 15 Accordingly, we sustain the following findings of the Comelec:
Based on the evidence adduced to support the appeal, appellant Cordero miserably failed to
justify the exclusion of the returns in the questioned precincts and we are not inclined to
rule for its exclusion by the simple expedient of submitting affidavits to attest to the veracity
of appellant's allegations. "In the absence of clearly convincing evidence, the election
returns and the canvassing proceedings must be upheld and besides, "reliance should not be
placed on mere affidavits" (Casimiro vs. Commission on Elections, 171 SCRA 468), which
affidavits do not sufficiently establish the truth in the allegations of appellant that the
returns were tampered with, contain[ed] material defects, manufactured and not authentic.
More so, appellant did not even attach evidence to his written objections to warrant the
exclusion of the returns. Said the Supreme Court in Anni vs. Izquierdo, 57 SCRA 692, "[A]
conclusion that an election return is obviously manufactured or false and consequently
should be disregarded in the canvass must be approached with extreme caution, and only
upon the most convincing proof."
WHEREFORE, the petition is DISMISSED for its failure to show grave abuse of discretion on
the part of the Commission on Elections. The assailed Resolutions are hereby AFFIRMED.
The Temporary Restraining Orders issued by the Court dated August 25, 1998 and
September 1, 1998 are hereby LIFTED. This Decision is immediately executory. Costs against
petitioner.1âwphi1.nêt
SO ORDERED.
Procedure in disposition of contested election returns
G.R. No. 125798 June 19, 1997
HADJI HAMID LUMNA PATORAY, petitioner,
vs.
COMMISSION ON ELECTIONS and TOPAAN D. DISOMIMBA, respondents.
PUNO, J.:
In this petition for certiorari and prohibition, with a prayer for the issuance of a temporary
restraining order (TRO), petitioner Hadji Hamid Lumna Patoray assails the June 28, 1996
Resolution of the COMELEC (Second Division) annulling his proclamation as mayor-elect of
Tamparan, Lanao del Sur, and the August 16, 1996 Order of COMELEC en banc holding in
abeyance the recanvassing of votes cast in election precinct numbers 16 and 20-A.
The facts. In the May 8, 1995 elections, petitioner HADJI HAMID LUMNA PATORAY and
private respondent TOPAAN D. DISOMIMBA were the closest rivals for the mayoralty post in
the municipality of Tamparan, Lanao del Sur. The counting of the ballots showed that
petitioner won over private respondent by a slim margin of twenty-five (25) votes, with
petitioner receiving 3,778 votes and private respondent garnering 3,573 votes.
During the canvass of the election returns, private respondent objected to the inclusion of
four (4) returns from precinct nos. 16, 17, 19 and 20-A. The municipal board of canvassers
(MBC) overruled his objections. Private respondent appealed to the COMELEC.
In its July 12, 1995 Resolution, the COMELEC modified the decision of the MBC and excluded
from the canvass only the two election returns from precinct nos. 16 and 20-A. With the
exclusion of these returns, the twenty-five (25) votes margin of petitioner was wiped out,
with private respondent now receiving the highest number of votes at 3,612 and petitioner
coming in second with 3,419 votes.
Accordingly, petitioner came to this Court on certiorari,1 impugning the July 12, 1995
Resolution of the COMELEC.
In our En Banc Decision,2 dated October 24, 1995, we noted that since there was a
discrepancy between the "taras" and the written figures of the votes received by the
candidates in the election return for precinct 16, the COMELEC (Second Division) should
have also ordered a recount of the ballots or used the Certificate of Votes cast in precinct
no. 16 to determine the true number of votes obtained by each party, after determining
that the ballot box has not been tampered with pursuant to Section 236 of the Omnibus
Election Code.3 As to the election return for precinct no. 20-A, we ruled that the COMELEC
erred in resorting to the Certificate of Votes in excluding the return in said precinct. Since
the return was incomplete for it lacked the data as to provincial and congressional
candidates, the applicable provision would be Section 234 of the Omnibus Election Code
which deals with materials defects in election returns. Thus, we ruled that the COMELEC
should have first determined the integrity of the ballot box, ordered the opening thereof
and recounted the ballots therein after satisfying itself that the integrity of the ballots is
intact.4 We then directed the COMELEC to issue another Order in accordance with said
Decision.
Accordingly, the COMELEC En Banc issued its January 18, 1996
Order5 implementing our Decision. However, without first ascertaining whether the
integrity of the ballots and ballot boxes were intact, COMELEC immediately ordered the
MBC to reconvence in the COMELEC Office, Manila, as a Special Board of Election Inspectors
and recount the ballots cast in precincts 16 and 20-A, prepare new election returns, enter
the new totals of the votes and then proclaim the winner.
Forthwith, private respondent filed a motion with the COMELEC to hold in abeyance the
recount of the ballots until after it has determined that the integrity of the ballot boxes and
the ballots therein had been duly preserved pursuant to Section 234 and 235 of the
Omnibus Election Code.
In an Order, dated January 25, 1996, the COMELEC denied said motion and held that there is
"no need to preliminarily determine that the identity and integrity of the ballots therein
have been duly preserved" for the recount of votes is not done upon the initiative this
Commission but upon orders of the Supreme Court.6 This Order was not challenged by
private respondent who even participated in the recount.
Pursuant to COMELEC's January 18, 1996 Order, the MBC, acting as the special Board of
Election Inspectors, reconvened on January 25, 1996 at the Comelec Office in Manila to
recount the ballots and recanvass the returns from precinct nos. 16 and 20-A. During the
canvass, private respondent objected to the inclusion of the ballots from precincts 16 and
20-A on the ground that "the election returns are manufactured, fabricated or not authentic
considering that the election returns include votes or ballots which are spurious, marked
and invalid ballots."7
The MBC rejected these objections holding that they cannot be considered in a pre-
proclamation case. In proceeded with the recounting and recanvassing of votes where
petitioner obtained a total of 3,778 votes as against private respondent's 3,753 votes. On
January 26, petitioner was proclaimed as the duly-elected mayor of Tamparan, Lanao del
Sur.8 On the same day, private respondent moved to declare the recount as null and void.9
Instead of definitively passing upon the issue of whether or not the integrity of the ballot
boxes and ballots for precincts 16 and 20-A was preserved, and thereafter rule on whether
or not the two returns should be excluded, the COMELEC en banc merely noted10 the
motion in view of petitioner's proclamation. On January 30, petitioner took his oath and
assumed the Office of the Mayor of Tamparan.
On February 5, 1996, private respondent filed an election protest with the RTC of Marawi
City. He also filed with the COMELEC (Second Division) a petition for the annulment of
petitioner's proclamation11 on the ground that the MBC did not comply with Section 20 of
R.A. 7166 in failing to rule on his objection during the canvass.
On June 28, 1996 the COMELEC (Second Division) issued a
Resolution12 granting the petition and annulling petitioner's proclamation. It held that the
MBC should have allowed private respondent to adduce evidence before it ruled on the
objections, as provided under Section 20 of R.A. 7166. It thus concluded that at the time of
the proclamation, private respondent's objections were still pending before the MBC.
COMELEC thus directed the MBC to reconvene and recanvass the two election returns,
observing strictly the requirements of Section 20, R.A. 7166, and proclaim the winner
accordingly.
Petitioner filed a motion for reconsideration13 with the COMELEC en banc alleging that the
procedure in R.A. 7166 on pre-proclamation cases apply only when there is a valid ground
for a pre-proclamation controversy. Petitioner claimed that since the objections raised by
private respondent pertained to the casting and appreciation of ballots, the proper remedy
was an election protest. Hence, private respondent's objection was correctly overruled by
the MBC.
On August 1, 1996, the COMELEC en banc issued an Order,14 thus:
Pending consideration of the Motion for Reconsideration, the Commission hereby orders as
follows:
1. To direct the parties to maintain the status quo prevailing prior to the filing of the petition
and this motion for reconsideration;
2. To direct the Municipal Board of Canvassers to reconvene and recanvass the election
returns pertaining to Precinct Nos. 16 and 20-A, strictly observing Section 20 of R.A. 7166;
3. To constitute a new Municipal Board of Canvassers of Tamparan, Lanao del Sur. . . ;
4. To direct the previous Municipal Board of Canvassers of Tamparan to turn over all
election documents pertaining to its canvass to the new Municipal Board of Canvassers
herein created.
SO ORDERED.
On August 13, 1996, private respondent filed a Motion for
Clarification15 with the COMELEC en banc. He pointed that after the COMELEC Division
annulled petitioner's proclamation and ordered a recanvassing of the two returns, petitioner
filed a motion for reconsideration with the en banc. Pending the resolution of this motion,
the en banc, in its August 1 Order, directed the parties to maintain the status quo prior to
the annulment of petitioner's proclamation, yet, at the same time, ordered the recanvassing
of the returns. Private respondent sought to clarify who, in the meantime, shall act as mayor
of Tamparan. He also pointed that the August 1 Order of the en banc was highly
questionable considering that by ordering a recanvass of the returns, the en banc in effect
sustained that portion of the June 28 Resolution of the Division directing a recount, without
resolving in its entirety the motion for reconsideration regarding the annulment of
petitioner's proclamation. He thus urged the COMELEC en banc to first resolve the motion
for reconsideration in its entirety before ordering a recount of the ballots.
On August 16, 1996, acting on the Motion for Clarification, the COMELEC en banc issued an
Order reversing its August 1 Order and holding in abeyance the recanvassing of the ballots
until the resolution of petitioner's pending motion for reconsideration.
In the meantime, at about 2:30 p.m. of the same date, pursuant to the August 1 Order16 of
the COMELEC en banc, the newly-constituted MBC reconvened at the session hall of the
COMELEC to recanvass the two election returns. Before the proceedings, however, the MBC
and the candidates received copies of the August 16 Order of the COMELEC en banc holding
in abeyance the reconvening of the MBC until resolution of petitioner's motion for
reconsideration. The August 16 Order of COMELEC was issued without giving petitioner a
chance to file his opposition thereto. In fact, petitioner's counsel was unaware of the filing
of private respondent's Motion for Clarification for he received a copy of the motion only at
about 3:00 p.m. of the same day. COMELEC, however, claimed that since the MBC was set to
reconvene on August 16, it had no choice but to issue its order on the same day suspending
the recanvassing and without awaiting Opposition from petitioner.
In view of the COMELEC order, the newly-constituted MBC adjourned its proceedings. The
August 16 Order showed on its face the Commissioner Maambong was on official business
but the latter denied this in a "Manifestation and Dissent"17 stating that he was not
informed that such order was the subject of consultation. He registered his dissent against
the August 16 Order since it would result in a piecemeal resolution of the case and could be
misinterpreted as a form of flip-flopping on the part of the COMELEC. Thus, petitioner
alleges that the August 16 Order was a falsified Order and issued by the COMELEC en banc
with grave abuse of discretion.
Hence this petition for certiorari and prohibition.18
We find the petition impressed with merit.
As correctly noted by the Solicitor General, this petition is a mere sequel to the earlier case
(G.R. No. 120823) between the same parties which was already decided by this Court on
October 24, 1995.19 The petition at bar actually involves a misinterpretation of our October
24, 1995 decision where we directed the COMELEC to order a recounting of ballots in
precincts 16 and 20-A but only after determining that the integrity and identity of the ballots
and ballot boxes were preserved, pursuant to Sections 234 and 236 of the Omnibus Election
Code. Instead of complying with this directive, the COMELEC, in its January 18, 1996
Order,20 immediately directed the MBC to reconvene and recount the ballots.
When private respondent filed a motion asking the COMELEC to first determine whether the
integrity of the ballot boxes and ballots were preserved prior to reconvening of the MBC,
COMELEC, in its order dated February 25, 1996,21 found "no need to preliminarily
determine" this issue. The recounting proceeded and private respondent even participated
therein. Hence, the February 25, 1996 Order of COMELEC became final and executory and
with the participation of private respondent in the recount, he is deemed to have waived his
right to impugn said order.
We come now to the propriety of the procedure adopted by the municipal board of
canvassers in refusing to consider the objections raised by private respondent to the
election returns from precincts 16 and 20-A.
Pursuant to Section 20 of R.A. 7166, private respondent filed before the municipal board of
canvassers (MBC) his written objection for the exclusion of returns for precincts 16 and 20-
A, worded as follows: "that the election returns are manufactured, fabricated or not
authentic, considering that the election returns includes votes on ballots which are spurious,
marked and invalid ballots."22 The MBC ruled that this is not a valid objection for a pre-
proclamation case. The COMELEC, however, did not categorically rule whether the objection
is valid in a pre-proclamation case. Instead, the COMELEC held that the MBC failed to follow
the procedure outlined in Section 20 of R.A. 7166 when it refused to rule on this objection,
continued with the canvassing and proclaimed petitioner as the winner.
Section 20 of R.A. 7166 provides for the procedure in the disposition of contested election
returns, thus: When a party contests the inclusion or exclusion of a return in the canvass, on
the grounds provided under Article XX or Sections 234-236, Articles XIX of the Omnibus
Election Code, the board of canvassers shall defer the canvass of the contested return, and
within 24 hours received the evidence of the objecting party. Within 24 hours, opposition to
the objection may be made by the other party. Upon receipt of the evidence, the board of
canvassers shall make a ruling thereon.
We find that the MBC did not err in refusing to consider the objections raised by private
respondent during the canvass of the returns. Section 20 of R.A. 7166 applies only where
the objection on the return being canvassed refers to issues proper in pre-proclamation
controversy. Under the Omnibus Election Code, pre-proclamation controversies are limited
to: (1) challenges directed against the composition or proceedings of the board of
canvassers (not the board of election inspectors), or (2) challenges related to election
returns to which a party must have made specified objections.
In the case at bar, private respondent objected to the two returns on the ground "that the
election returns are manufactured, fabricated or not authentic, considering that the election
returns includes votes on ballots which are spurious, marked and invalid ballots."23 The
objection, as worded, did not challenge the returns, but was directed primarily at the ballots
reflected in the returns. The issue of whether or not the ballots were manufactured,
fabricated or not authentic involves an appreciation thereof. It is settled that issues relative
to the appreciation of ballots cannot be raised in a pre-proclamation controversy.
Appreciation of ballots is the task of the board of election inspectors, not the board of
canvassers, and questions related thereto are proper only in election protests.24
In the case of Abella v. Larrazabal,25 we ruled that the objection raised before the board of
canvassers that certain votes reflected in certain returns are not valid votes as they should
not have been counted at all is not a valid ground for a pre-proclamation controversy. It is
beyond the competence of the board of canvassers; neither is it a pre-proclamation issue,
and the refusal of the boards of canvassers to consider such objection or rule on the same is
not erroneous.
Thus, in the case at bar, the MBC correctly ruled that private respondent's objections are
not proper in a pre-proclamation controversy. Thus, the procedure outlined in Section 20 of
R.A. 7166 would not apply in the disposition of returns from precincts 16 and 20-A, inclusion
of which was objected to by private respondent.
Private respondent's recourse now is to proceed with the election contest pending before
the RTC of Marawi City and there raise the issue relative to the alleged mistake in the
appreciation of the ballots included in the contested election returns.
IN VIEW WHEREOF, the temporary restraining order issued by this Court against public
respondent COMELEC directing it to desist from ruling on petitioner's motion for
reconsideration is made permanent. The June 28, 1996 COMELEC Resolution annulling
petitioner's proclamation is reversed and set aside, without prejudice to the final outcome
and resolution of the election protest filed by private respondent before the RTC of Marawi
City. No costs.
SO ORDERED.
Ruling by board of canvassers on objections
G.R. No. 87721-30 December 21, 1989
BENJAMIN P. ABELLA and SILVESTRE T. DE LA CRUZ, petitioners,
vs.
ADELINA INDAY LARRAZABAL, PROVINCIAL BOARD OF CANVASSERS OF LEYTE and
COMMISSION ON ELECTIONS, respondents.
G.R. No. 88004. December 21, 1989.
BENJAMIN P. ABELLA and SILVESTRE T. DE LA CRUZ, petitioners,
vs.
ADELINA LARRAZABAL and COMMISSION ON ELECTIONS, respondents.
CRUZ, J.:
The Court has ordered the consolidation of G.R. Nos. 87721-30 and G.R. No. 88004 involving
the same parties and the same election in 1988 for the office of provincial governor of Leyte.
Challenged in these petitions for certiorari are the resolutions of the respondent
Commission on Elections dismissing the pre-proclamation and disqualification cases filed by
the herein petitioners against private respondent Adelina Larrazabal.
Petitioner Benjamin P. Abella was the official candidate of the Liberal Party for provincial
governor of Leyte in the local election held on February 1, 1988. The private respondent is
the wife of Emeterio V. Larrazabal, the original candidate of the Lakas ng Bansa-PDP-Laban
who was disqualified by the Commission on Elections on January 18, 1988, for lack of
residence. 1 On January 31, 1988, the day before the election, she filed her own certificate
of candidacy in substitution other husband . 2 The following day, at about 9:30 o'clock in the
morning, Silvestre de la Cruz, a registered voter of Tacloban City, filed a petition with the
provincial election supervisor of Leyte to disqualify her for alleged false statements in her
certificate of candidacy regarding her residence. 3 This was immediately transmitted to the
main office of the Commission on Elections, which could not function, however, because all
but one of its members had not yet been confirmed by the Commission on Appointments.
De la Cruz then came to this Court, which issued a temporary restraining order on February
4, 1988, enjoining the provincial board of canvassers of Leyte "from proclaiming Adelina
Larrazabal as the winning candidate for the Office of the Governor in the province of Leyte,
in the event that she obtains the winning margin of votes in the canvass of election returns
of said province." 4 On March 1, 1988, the Commission on Elections having been fully
constituted, we remanded the petition thereto "for appropriate action, including
maintenance or lifting of the Court's temporary restraining order of February 4, 1 988.5
In the meantime, petitioner Abella, after raising various verbal objections (later duly
reduced to writing) during the canvass of the election returns, seasonably elevated them to
the Commission on Elections in ten separate appeals docketed as SPC Nos. 88-627 to 88-
627-I. Pending resolution of these cases, Abella intervened on March 7, 1988, in the
disqualification case, docketed as SPC No. 88-546, and the following day filed a criminal
complaint with the Law Department of the COMELEC charging the private respondent with
falsification and misrepresentation of her residence in her certificate of candidacy.
On March 22, 1988, the public respondent consolidated the pre-proclamation and
disqualification cases with the Second Division. On February 3, 1989, this Division
unanimously upheld virtually all the challenged rulings of the provincial board of canvassers,
mostly on th ground that the objections raised were merely formal and did not affect the
validity of the returns or the ballots, and ordered the proclamation of the winner after
completion of the canvass. 6 On that same date, the disqualification case was also dismissed
by a 2-1 decision, and the matter was referred to the Law Department for "preliminary
investigation for possible violation of Section 74 of the Omnibus Election Code. 7
The motion for reconsideration of the resolution on the pre-proclamation cases was denied
by the COMELEC en banc on April 13, 1989, with no dissenting vote. 8 These cases are the
subject of G.R. Nos. 87721-30, where we issued on April 18, 1989, another temporary
restraining order to the provincial board of canvassers of Leyte "to CEASE and DESIST from
resuming the canvass of the contested returns and/or from proclaiming private respondent
Adelina Larrazabal Governor of Leyte."
The motion for reconsideration of the resolution on the disqualification case was also
denied by the COMELEC en banc on May 4, 1989, but with three commissioners dissenting.
9 The dismissal of this case is the subject of G.R. No. 88004.
Our decision follows.
In G.R. Nos. 87721-30, the ruling of this Court is that the respondent Commission on
Elections committed no grave abuse of discretion in its decision dated February 3, 1989, and
in its en banc resolution dated April 13, 1989, denying reconsideration.
The petitioner contends that in refusing to consider the objections raised by him to 26
election returns (later reduced to 24) before the board of canvassers because the rulings
thereon were not in writing, the COMELEC has effectively and illegally denied him the right
to appeal through no fault of his.
The basis of such refusal is Section 245 of the Omnibus Election Code providing in part as
follows:
Sec. 245. Contested election returns.-...
xxx xxx xxx
Within twenty-four hours from and after the presentation of a verbal objection, the same
shall be submitted in written form to the board of canvassers. Thereafter, the board of
canvassers shall take up each contested return, consider the written objections thereto and
summarily rule thereon. Said rulings shall be made oral initially and then reduced to writing
by the board within twenty-four hours from the time. the oral ruling is made.
Any party adversely affected by an oral ruling on its/his objection shall immediately state
orally whether it/he intends to appeal said ruling. The said intent to appeal shall be stated in
the minutes of the canvassing. If a party manifests its intent to appeal, the board of
canvassers shall set aside the return and proceed to rule on the other contested returns.
When all the contested returns have been ruled upon by it, the board of canvassers shall
suspend the canvass and shall make an appropriate report to the Commission, copy
furnished the parties.
It is clear from this provision that the board of canvassers is under the obligation to make a
written ruling on the formal objections made by any of the parties, who may then appeal
the same to the COMELEC. It is equally clear that the failure or refusal of the board of
canvassers to discharge this obligation should not in any way prejudice the objecting party's
right to elevate the matter to the COMELEC for proper review. Otherwise, all that a board of
canvassers partial to one of the candidates has to do to favor him would be to refuse to
make a written ruling on his opponent's objections and thereby prevent their review by the
COMELEC.
In the case at bar, however, there does not appear to be any such prejudice. The issue is the
refusal of the COMELEC to consider objections to 24 election returns on which the board of
canvassers had not made a written ruling. But it would seem that, strictly speaking, no ruling
was necessary, or even proper. By the petitioners' own contention "in all those 24 returns,
the Christian name, nickname or maternal surname of private respondent's husband was
used with her Christian name or nickname which, as we will show at length infra did not
constitute a valid vote for private respondent. If so, the total 1,912 votes in these returns
credited for private respondent should be discounted. 10 This matter was obviously beyond
the competence of the board of canvassers to resolve. Neither was it cognizable in a pre-
proclamation controversy before the COMELEC as defined in Section 243 of the Omnibus
Election Code. This provision reads as follows:
Sec. 243.Issues that may be raised in pre-proclamation controversy the following shall be
proper issues that may be raised in a pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of canvassers;
(b) The canvassed election returns are incomplete, contain material defects, appear to be
tampered with or falsified, or contain discrepancies in the same returns or in other
authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;
(c) The election returns were prepared under duress, threats, coercion, or intimidation, or
they are obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in controverted polling places were canvassed,
the results of which materially affected the standing of the aggrieved candidate or
candidates.
The inclusion or exclusion in the canvass of certain election returns where votes allegedly
cast for Emeterio Larrazabal were counted for his wife is an issue appropriate in an election
contest and not in a pre-proclamation controversy. And it is also immaterial that, as also
contended, the inclusion of such votes would affect the over-all results of the election and
swing it in his favor. The accepted rule is that as long as the returns appear to be authentic
and duly accomplished, the board of canvassers cannot look beyond them to verify
allegations of irregularities in the casting or the counting of the votes. 11 These issues
cannot be resolved by the board of canvassers. A long line of decisions has established the
doctrine that the board of canvassers has only the ministerial task of tallying the votes as
reported in the election returns and cannot exercise the judicial power of deciding an
election contest. 12
Pre-proclamation controversies are summary in nature. According to Section 246 of the
Omnibus Election Code:
Sec. 246. Summary proceedings before the Commission. All pre- proclamation controversies
shall be heard summarily by the Commission after due notice and hearing, and its decisions
shall be executory after the lapse of five days from receipt by the losing party of the decision
of the Commission, unless restrained by the Supreme Court.
And the reason for this rule is obvious. As we stressed in Alonto v. COMELEC, 13 "the policy
of the election law is that pre-proclamation controversies should be summarily decided,
consistent with the law's desire that the canvass and proclamation be delayed as little as
possible." That is why such questions as those involving the appreciation of the votes and
the conduct of the campaign and the balloting, which require more deliberate and
necessarily longer consideration, are left for examination in the corresponding election
protest. The Court cannot accept the petitioner's averment that the public respondent made
short shrift of his objections and resolved them arbitrarily, without considering the evidence
submitted. We see no such arbitrariness. On the contrary, we find that the questioned
resolution of the COMELEC en banc, which unanimously affirmed the unanimous decision of
its Second Division, was based on the facts as assessed by the public respondent in the light
of the applicable election laws and jurisprudence. The basic decision of the Second Division
was 33 pages long and dealt in detail with the specific objections, the rulings of the board of
canvassers, and the action thereon of the COMELEC. 14
In Aratuc v. Commission on Elections, 15 speaking of the need to preserve the
"independence and all the needed concomitant powers" of the Commission on Elections,
Justice Antonio P. Barredo declared that "it is but proper that the Court should accord the
greatest measure of presumption of regularity to its course of action ... to the end it may
achieve its designed place in the democratic fabric of our government." There is no reason
for not applying that policy in the case before us.
The contention that the dismissal of the pre-proclamation controversy would render the
disqualification case moot and academic is also untenable. The two cases are independent
of each other and one may be resolved separately without affecting the other. The purpose
of a pre-proclamation controversy is to ascertain the winner or winners in the elections on
the basis of the election returns duly authenticated by the boards of inspectors and
admitted by the board of canvassers.
The purpose of a disqualification proceeding is to prevent the candidate from running or, if
elected, from serving, or to prosecute him for violation of the election laws. Obviously, the
mere fact that a candidate has been proclaimed elected does not signify that his
disqualification is deemed condoned and may no longer be the subject of a separate
investigation.
In SPC No. 88-546, the petitioners seek to disqualify the private respondent on the ground
that she misrepresented her residence in her certificate of candidacy as Kananga, Leyte. The
charge is that she was in fact and under the law a resident of Ormoc City like her husband,
who was disqualified precisely on that account from running for provincial governor of
Leyte.
In the course of the hearing on this issue, the private respondent moved for clarification of
the nature of the proceeding and asked the COMELEC to determine under what law her
qualifications were being challenged. That determination was embodied in the decision of
the Second Division dated February 3, 1989, and the en banc resolution dated May 4, 1989,
which are now assailed in G.R. No. 88004.
According to the COMELEC, the proceeding was not intended against an alleged nuisance
candidate under Section 69 of the Election Code as it was obvious that the private
respondent was a serious bona fide candidate, nor was it a petition for quo warranto under
Section 253 which could be filed only after the proclamation of the respondent. Neither
could it be considered a petition to deny due course to the certificate of candidacy under
Section 78 of the Code as this was not prayed for by the petitioners, besides the fact that
the petition was not filed before the election. Finally, it could also not be considered a
petition for disqualification under Section 68 of the Code because the private respondent
was not being charged with the commission of any of the election offenses mentioned in
that section. Concluding, the COMELEC held that the subject of the petition, to wit,
misrepresentation in the certificate of candidacy, was actually a violation of Section 74 and,
pursuant to its rules, should be prosecuted as an election offense under Section 262 of the
Code. It therefore dismissed SPC No. 88-564 and referred it to its Law Department for
proper action.
The Court holds that the dismissal was improper. The issue of residence having been
squarely raised before it, it should not have been shunted aside to the Law Department for a
roundabout investigation of the private respondent's qualification through the filing of a
criminal prosecution, if found to be warranted, with resultant disqualification of the accused
in case of conviction. The COMELEC should have opted for a more direct and speedy process
available under the law, considering the vital public interest involved and the necessity of
resolving the question at the earliest possible time for the benefit of the inhabitants of
Leyte.
In the view of the Court, the pertinent provision is Section 78 in relation to Section 6 of R.A.
No. 6646.
Section 78 provides:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy.-A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed by
any person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later
than twenty-five days from the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before the election.
Section 6 of R.A. 6646 states as follows:
Section 6.Effect of Disqualification Case. any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election
to be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong.
In rejecting this remedy, the COMELEC makes much of the fact that the petition was filed on
the very day of the election and not before the election as required by Section 78.
Disregarded, however, is the other more important fact that the private respondent's
certificate of candidacy was filed only on January 31, 1988, the day before the election, and
that the petition to disqualify her was filed almost immediately afterwards, in the morning
of election day itself. Under the circumstances, petitioner de la Cruz can hardly be faulted
for not having filed his challenge earlier, that is, during the remaining hours before midnight
of January 31, 1988. To make such an unreasonable requirement is to make a rather
strained reading of the law beyond its obvious purpose.
Interestingly, as Commissioner Haydee B. Yorac observed in her dissenting opinion, the
private respondent had all of eighteen days from her husband's disqualification to file her
own certificate of candidacy but waited to do so until practically the last day, and a Sunday
at that. This raises the not untenable conjecture that the filing was timed precisely to delay
until too late the expected challenge to her claimed residence and to thus foreclose all
inquiry into her credentials. In fairness, it may also be assumed that she had good reasons
for filing her certificate of candidacy one day before the election. In any event, given the
time allowance to file the challenge under normal circumstances (twenty-five days under
Section 78 and five days under COMELEC Res. No. 1928) 16 one cannot say that the
challenge in this case, although not filed earlier, was unseasonable.
The above-stressed circumstances should explain the necessity for continuing the
investigation of the private respondent's challenged disqualification even after the election
notwithstanding standing that such matter is usually resolved before the election.
Independently of these circumstances, such proceedings are allowed by Section 6 of R.A.
6646 "if for any reason a candidate is not declared by final judgment before an election to
be disqualified ...
The Court believes that, conformably to law and in the particular interest of the people of
Leyte, the question of the private respondent's residence should be resolved by the
respondent COMELEC directly and as soon as possible. To this end, SPC No. 88-546 should
be recalled from its Law Department and returned to the Second Division for the
resumption of the hearing thereon and the reception of the evidence of the parties. This
should be done with all deliberate dispatch so that the delay that has attended the
disposition of this case since the local election held on February 1, 1988 may at least be
ended.
Acting on the allegations contained in the petition, and in the exercise of its discretion, the
Court, as earlier related, issued a temporary restraining order that has held in abeyance the
canvass of the contested election returns and the proclamation by the provincial board of
canvassers of the private respondent as Governor of Leyte. This order is now referred to the
COMELEC. Pending the final disposition of the case, it may maintain or lift the said order
under Section 6 of R.A. 6646 on the basis of its own assessment of the evidence against the
private respondent.
WHEREFORE, judgment is hereby rendered as follows:
1. In G.R. Nos. 87721-30, the decision dated February 3, 1989, and the resolution dated April
13, 1989, are AFFIRMED and the petition is DISMISSED.
2. In G.R. No. 88004, the decision dated February 3, 1989, and the resolution dated May 4,
1989, are REVERSED and SET ASIDE. Respondent Commission on Elections is ORDERED to
directly hear and decide SPC Case No. 88-546 under Section 78 of the Omnibus Election
Code, with authority to maintain or lift our temporary restraining order of April 18, 1989,
according to its own assessment of the evidence against the private respondent.
The parties are enjoined to resolve this case with all possible speed, to the end that the
regular Governor of Leyte may be ascertained and installed without further delay.
SO ORDERED.
Ruling by board of canvassers on objections
G.R. No. 84673-74 February 2, 1989
FLORENCIO SALVACION, petitioner,
vs.
COMMISSION ON ELECTIONS and ROMEO YSIDORO respondents.
Brillantes, Nachura, Navarro & Arcilla Law Office for petitioner.
The Solicitor General for public respondent.
Joaquin O. Ilustre for private respondent.
GANCAYCO, J.:
The facts of this case are undisputed. In the postponed election that was held on February 1,
1988 in the Municipality of Leyte, Leyte, after all election returns from the various precincts
were canvassed, objections were raised to the inclusion and/or exclusion of four (4)
precincts, namely: the election returns from Precinct Nos. 12, 13, 14, and 26. Petitioner and
private respondents were candidates for election as mayor. The Municipal Board of
Canvassers conducted a formal investigation of the incidents relative thereto and after
twelve (12) consecutive days of trial, the Board issued an order dated February 21, 1988, the
dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Board reiterates its unanimous ruling to include,
as it hereby includes, in the canvass the election returns of Precint Nos. 14, 26 and 13; and
further rule (sic) to exclude as it hereby excludes, the election return of precinct No. 12 from
the canvass. (Emphasis supplied.) 1
On February 22, 1988, private respondent filed with public respondent Commission of
Elections (COMELEC) a notice of appeal from said ruling as to the exclusion of the election
return from Precinct No. 12. Petitioner also appealed the ruling as to the inclusion in the
canvass of the election returns from Precincts Nos. 13, 14 and 26.
Both appeals were heard by the First Division of public respondent. On May 30, 1988, a
Resolution was promulgated by said Division upholding the ruling of the Municipal Board of
Canvassers and directing it to reconvene and to complete the canvass of election returns
from all the precincts of Leyte, Leyte excluding therefrom the election return from Precinct
No. 12 and including therein the election returns from Precinct Nos. 13, 14 and 26; and on
the basis of such completed canvass, proclaim all the winning candidates for all the local
elective offices of the Municipality of Leyte in the election held thereat on February 1, 1988.
On June 3, 1988, the Municipal Board of Canvassers of the Municipality of Leyte, Leyte, after
due notice to all interested parties, reconvened and implemented said Resolution as a result
of which the official number of votes obtained by the parties was as follows:
Petitioner Salvacion-3,715 votes
Respondent Ysidoro-3,626 votes,
Said Board then immediately proclaimed petitioner as the duly elected mayor of said
municipality. Petitioner took his oath of office and assumed the position of Municipal Mayor
of Leyte, Leyte on the same day.
Private respondent filed a motion for reconsideration with the public respondent en banc to
which an opposition was filed by petitioner. On June 16, 1988, a hearing was held after
which the parties were given ten (10) days within which to file their respective memoranda,
and thereafter the case was considered submitted for resolution. On July 21, 1988, public
respondent en banc promulgated its resolution reversing the resolution of the First Division
by ordering the inclusion in the canvass the election return from Precinct No. 12. 2 Attached
thereto was the "Vote and Opinion" of Commissioner Dario Rama rendered on June 16,
1988. 3 Commissioner Leopoldo L. Africa wrote a separate dissenting opinion concurred in
by Commissioner Alfredo Abueg.
Petitioner filed a motion for reconsideration of said resolution. On August 23, 1988, public
respondent en banc promulgated its resolution, en banc denying the motion and affirming
in toto its resolution dated July 21, 1988. Three members dissented. 4
Hence the herein petition for certiorari and, prohibition with preliminary injunction and a
prayer for the issuance of a temporary restraining order wherein it is alleged that public
respondent committed a grave abuse of discretion in rendering its Resolution dated August
27, 1988. Petitioner seeks to prohibit public respondent from enforcing said resolution.
Petitioner contends that public respondent cannot disturb the findings of the Municipal
Board of Canvassers and of its First Division there being no showing of grave abuse of
discretion on their part. Petitioner adds that the finding made by the Board regarding the
election return of Precinct No. 12 is that "it was prepared under circumstances of duress,
threats, coercion and intimidation" so that the Board acted correctly in not counting any
votes from said precinct. It is also pointed out that contrary to the requirements of the law
that the election return shall be accomplished simultaneously or as the ballots are counted
by the Board of Election Inspectors, 5 the questioned election return was actually prepared
in another place, in a "shop" after all the ballots were counted by said Board of Election
Inspectors in another place.
Petitioner invoked the dissenting opinion of Commissioner Africa that a "return prepared
under duress, intimidation and coercion is, by reason of these circumstances, no return at
all, without regard to the genuineness or authenticity thereof."
Moreover, petitioner argues that inasmuch as he bad already been lawfully proclaimed and
bad assumed office, it was patently erroneous and highly irregular for public respondent to
now amend or alter the result of the election as announced and implemented by the
Municipal Board of Canvassers. Only through the intervention of the competent court in a
regular election contest can said results be altered or amended. 6
Petitioner opines that the vote of Commissioner Rama is void inasmuch as the same was
rendered immediately after the hearing of June 16, 1988 and before the memoranda of the
parties were submitted thereby showing that he prejudged the case. Petitioner also
observed that private respondent admitted the irregularity in the preparation of the election
return of Precinct No. 12 and its nullity when in his Notice of Appeal he declared he was
agreeable to the holding of a special election for said precinct. And that the least public
respondent should have done following Section 235 of the Omnibus Election Code was to
order the Board of Election Inspectors to recount the votes in Precinct No. 12, if only to
ascertain the true results. Finally, it is averred that private respondent failed to file his
statement of contributions and expenditures as required under Section 107 of the Omnibus
Election Code and Resolution No. 1939 of public respondent dated November 16, 1987, so
that private respondent has no lawful right to the position for which petitioner was
proclaimed.
The petition is devoid of merit.
In the questioned Resolution of public respondent dated August 23, 1988, its Resolution No.
88-783 promulgated on March 25, 1988 is reproduced:
RESOLVED, as it hereby resolves, to suspend the execution/ implementation of any decision
of a Division upon the filing of a motion for the reconsideration thereof. Provided, that the
said motion for reconsideration was filed on time.' (P. 29, Rollo)
Thus, it ruled that as private respondent's motion for reconsideration of the Resolution of
the First Division of public respondent of May 30, 1988 was filed within five (5) days from his
receipt of the same, the execution of said Resolution on the matter of the winning candidate
for Mayor was suspended. The alleged proclamation of petitioner was declared invalid.
In the Resolution of the public respondent dated July 21, 1988, the following disquisition
was made:
The only issue to be resolved is the correctness of the ruling of the Municipal Board of
Canvassers as sustained by the First Division to exclude from canvass the election returns
pertaining to Precinct No. 12 on the ground that the same was prepared under duress,
threats, intimidation or coercion.
We find for the petitioner.
While the statement of the legal doctrine on the board of canvassers' authority to exclude
from canvass election returns which are prepared under conditions of coercion or threats is
correct, the First Division failed to apply a crucial part of the doctrine that the circumstances
must affect the regularity or the genuineness of the contested returns. In other words, the
conditions of threat, intimidation, duress and coercion must have resulted in the
preparation of election returns that falsifies the true results of the voting at the precinct
level, as for example, candidate A obtained five (5) votes in a precinct, and by reason of
force or intimidation the Board of Election Inspectors was compelled to make an entry of
fifty (50) votes for such candidate. If the election returns reflects the results of the voting at
the precinct level, any coercion and intimidation that may have been committed in the
course of its preparation may give rise to legal, including criminal liability but will not justify
the exclusion of the returns.
This is quite clear from the ruling in Espino v. Zaldivar, L- 22325, December 11, 1967, 21
SCRA 1204, cited by the First Division, where the Supreme Court held:
We do not discern in the law a purpose to throw the burden on courts where it is patent —
as in the case here that tampering of the returns occurred after they had left the hands of
the election inspectors, just to pave the way for the proclamation of a candidate in whose
favor falsification was resorted to. To tie up the hands of the board of canvassers in the
situation here presented is to wink at a brazen form of wrong-doing to subvert the people's
will and in mockery crown the loser with victory. Correctly then, canvassers are given quasi-
judicial powers to determine whether the return is genuine and to disregard one which is
obviously a forgery. Along parallel lines this court in Nacionalista Party v. Commission on
Elections, 85 Phil. 149, 157, 158, declared that the canvassing board could accept as correct
those returns transmitted to it which are in due form, that they must "be satisfied of the
genuineness of the returns-namely, that the papers presented to them are not forged and
spurious"; and that "where the returns are obviously manufactured, ... the board will not be
compelled to canvass them," pp. 1212-1213. (Emphasis supplied.)
x x x x.
Sinsuat v. Pendatun, supra, also affirmed the propriety of rejection of election returns
whose entries were obviously false for being statistically improbable in accordance with the
tests established by Lagumbay v. Commission on Elections, L- 25444, January 31, 1986, 16
SCRA 175.
In both cases, the entries in the election returns rather than the external circumstances that
attended their preparation, were the decisive factors that brought about the exclusion of
the returns.
Great reliance was placed by the Board of Canvassers upon the testimony of Mrs. Elisa
Dagasdas, Chairman of the Board of Election Inspectors for Precinct 12, given in the course
of the seven (7) day hearing that the Municipal Board of Canvassers conducted in
connection with objections raised against four (4) contested election returns, including that
from Precinct No. 12.
We reproduce her testimony made on different dates on the alleged intimidation and
coercion perpetrated upon the Board of Election Inspectors:
xxxxx
It is thus clear that while partisans of petitioner used some threatening and harassing
language, this did not at all affect the correctness of the counting of votes and in Precinct
No. 12 or the correct and exact recording of the votes in said precinct in the election
returns. In fact the testimony of the principal witness Mrs. Dagasdas' is to the effect that
when she signed and thumbmarked each page of the election returns, there was no
interference whatsoever from any source and the entries were all correct. There is therefore
no basis for the exclusion of the returns from Precinct No. 12. (Emphasis supplied.) 7
We agree. While it may be true that duress, threats, intimidation or coercion attended the
preparation of the election return for Precinct No. 12, there is no showing that the same
affected the regularity or the genuineness of the contested election return. There is no
evidence presented to public respondent that the election return in question was falsified in
such a way that the true results of the voting had been altered. The court is bound by the
finding of public respondent as there is no showing that it committed a grave abuse of
discretion.
It appearing that the questioned Resolution of public respondent had already been
implemented and the private respondent had been proclaimed as the elected mayor of the
Municipality of Leyte, Leyte by the inclusion of the election return for Precinct No. 12 and
that he has taken his oath of office and assumed the duties of said Office, the remedy of the
petitioner is not a pre-proclamation contest but an electoral protest filed at the proper time
before the competent court.
WHEREFORE, the petition is DISMISSED for lack of merit. No costs.
SO ORDERED.
Pre-proclamation cases
G.R. No. 133842 January 26, 2000
FEDERICO S. SANDOVAL, petitioner,
vs.
COMMISSION ON ELECTIONS and CANUTO SENEN A. ORETA, respondents.
PUNO, J.:
The petition at bar assails the order of the Commission on Elections (COMELEC) en banc
dated June 2, 1998 nullifying and setting aside the proclamation of petitioner Federico S.
Sandoval as congressman-elect for the Malabon-Navotas legislative district.
The facts are as follows:
Petitioner Federico S. Sandoval and private respondent Canuto Senen Oreta, together with
Pedro Domingo, Mariano Santiago, Symaco Benito and Warren Serna, vied for the
congressional seat for the Malabon-Navotas legistative district during the election held on
May 11, 1998.
On election day, after the votes have been cast and counted in the various precincts in the
two municipalities, their respective board of canvassers convened to canvass the election
returns forwarded by the board of election inspectors.
In Malabon, a reception group and several canvassing committees were formed to expedite
the canvass. The reception group received, examined and recorded the sealed envelopes
containing the election returns, as well as the ballot boxes coming from the precincts. The
reception group then distributed the election returns among the canvassing committees.
The committees simultaneously canvassed the election returns assigned to them in the
presence of the lawyers and watchers of the candidates.
On May 16, 1998, counsels for private respondent made a written request upon Malabon
Election Officer Armando Mallorca to furnish them with a complete list of the statement of
votes so that they could verify whether all statements of votes have been tabulated.1 They
likewise requested for a complete list of precincts in the municipality together with the
number of canvassed votes for petitioner and private respondent as of May 16, 1998. They
also sought permission to conduct an audit of the tabulation reports made by the municipal
board of canvassers.2 These requests, however, were denied by the municipal board of
canvassers on the following grounds: (1) that any counsel for a candidate has neither
personality nor right to conduct an audit of the tabulation report as the proceedings of the
board are presumed to be regular, and (2) that the granting of the requests would delay the
proceedings of the board to the prejudice of the will of the people of Malabon.3
On May 17, 1998, the Malabon municipal board of canvassers concluded its proceedings.
The board issued a certificate of canvass of votes stating that it canvassed 804 out of 805
precincts in the municipality. The certificate of canvass showed that private respondent
obtained the highest number of votes in Malabon with 57,760 votes, with petitioner coming
in second with 42,892 votes.4
On the same day, after obtaining copies of the statements of votes, Ma. Rosario O. Lapuz,
authorized representative of private respondent wrote then COMELEC Chairman Bernardo
Pardo5 and informed him that several election returns were not included in the canvass
conducted by the Malabon municipal board of canvassers. She moved that the certificate of
canvass issued by said board be declared "not final."6
On May 19, 1998, Ms. Lapuz again wrote Chairman Pardo. The letter reiterated the
allegations in her letter dated May 17, 1998 and requested that the Malabon municipal
board of canvassers be ordered to canvass the election returns which it allegedly failed to
include in its canvass.7
On May 23, 1998, private respondent filed with the COMELEC an Urgent Petition entitled "In
re: Petition to Correct Manifest Error in Tabulation of Election Returns by the Municipal
Board of Canvassers of Malabon, NCR. Canuto Tito Oreta vs. Municipal Board of Canvassers
of Malabon." The petition was docketed as SPC No. 98-143. It alleged that while the
certificate of canvass showed that 804 election returns were canvassed and tabulated, only
790 election returns were actually canvassed. Private respondent contended that there was
a manifest error in the non-recording or copying of the results in 14 election returns from 14
precincts into the statement of votes. It prayed: (1) that the municipal board of canvassers
of Malabon be reconvened to correct said manifest error by entering the results of the
elections in the 14 election returns into the statement of votes and that the certificate of
canvass be corrected to reflect the complete results in 804 precincts; and (2) that the
canvass of the results for the congressional election by the district board of canvassers for
Malabon and Navotas be suspended until the alleged manifest error is corrected.8
Meanwhile, the proceedings of the municipal board of canvassers of Navotas were
disrupted by the riotous exchange of accusations by the supporters of the opposing
mayoralty candidates. The COMELEC had to move the venue to the Philippine International
Convention Center in Manila to finish the canvass. On May 27, 1998, Chairman Pardo issued
a memorandum to Atty. Ma. Anne V.G. Lacuesta, Chairman, District Board of Canvassers for
Malabon-Navotas, authorizing her to immediately reconvene the district board of
canvassers, complete the canvassing of the municipal certificate of canvass and supporting
statement of votes per municipality, and proclaim the winning candidate for the
congressional seat of the Malabon-Navotas legislative district.9
On May 28, 1998, private respondent filed with the COMELEC an Urgent
Manifestation/Motion in connection with SPC No. 98-143. It prayed that the canvass of the
results of the congressional election by the district board of canvassers be suspended until
the alleged manifest error in SPC No. 98-143 is corrected.10
At 4:15 in the afternoon on May 28, 1998, the district board of canvassers convened at the
Philippine International Convention Center. It took up private respondent's petition to
correct the manifest error arising from the non-inclusion of 19 election returns in the
canvass. After examining the statement of votes by precinct and the certificate of canvass
signed and thumbmarked by three watchers from different parties, the district board of
canvassers found that a total of 804 election returns were canvassed by the Malabon
municipal board of canvassers.11
The district board of canvassers then proceeded to canvass the certificates of canvass from
the two municipalities. Counsel for private respondent requested that the canvassing be
suspended until the Commission has resolved their petition for correction of manifest error
in the certificate of canvass of Malabon. The district board of canvasser, however, denied
the request for the following reasons:
1. absence of restraining order from the Commission;
2. order of the Chairman dated May 27, 1998 directing the district board to proceed with
the canvass and proclamation of winning candidates for the district of Malabon-Navotas;
3. there is no irregularity in the submitted certificate of canvass from both municipalities
and there were no objections raised for both certificates of canvass of the counsels present;
4. no report coming from the municipal board of canvassers from Malabon that there were
uncanvassed election return except for one;
5. the municipal board of canvassers of Malabon submitted to the district board of
canvassers certificate of canvass which indicated that the number of canvassed returns for
District I is 397 and 407 for District II for a total of 804 out of 805 election returns;
6. the board has only the ministerial duty to tally the votes as reflected on the certificate of
canvass supplemented by the statement of votes and has no authority to verify allegations
of irregularities in the preparation thereof; and
7. there is no pre-proclamation contest for the position of congressman.12
Private respondent's counsel sought reconsideration of the decision of the district board of
canvassers but it was likewise denied by the board.
After canvassing the municipal certificates of canvass, the district board of canvassers
proclaimed petitioner the duly elected congressman of the legislative district of Malabon-
Navotas. The board declared that petitioner obtained a total vote of 82,339 over private
respondent's 80,319 votes.13 Petitioner took his oath of office on the same day.14
The following day, on May 29, 1998, private respondent filed with the COMELEC in
connection with SPC No. 98-143 an "Urgent Appeal from the Decision of the Legislative
District Board of Canvassers for Malabon and Navotas with Prayer for the Nullification of the
Proclamation of Federico S. Sandoval as Congressman." It alleged that there was a verbal
order from the COMELEC Chairman to suspend the canvass and proclamation of the winning
candidate for congressman of the Malabon-Navotas legislative district; that the district
board of canvassers proceeded with the canvass and proclamation despite the verbal order;
and that the non-inclusion of the 19 election returns in the canvass would result in an
incomplete canvass of the election returns. It prayed that the decision of the district board
of canvassers be reversed and that the municipal board of canvassers of Malabon be
reconvened to complete its canvass. It also prayed that the proclamation of petitioner as
congressman be annulled.15
On May 30, 1998, private respondent filed with the COMELEC an Urgent Petition docketed
as SPC No. 98-206. The petition sought the annulment of petitioner's proclamation as
congressman. It alleged that at about 4:00 in the afternoon on May 28, 1998, the COMELEC
Chairman directed the district board of canvassers to suspend the canvass and proclamation
pending the resolution of the petition for correction of manifest error in the municipal
certificate of canvass of Malabon; that the district board of canvassers still proceeded with
the canvass in spite of the order; that the proclamation was made despite the non-inclusion
of election returns from 19 precincts in Malabon; and that the non-inclusion of these
election returns will materially affect the result of the election. Private respondent prayed
that the proclamation of petitioner as congressman be annulled and that the municipal
board of canvassers of Malabon be ordered to reconvene to include the 19 election returns
in the canvass.16
On June 2, 1998, the COMELEC en banc issued an order setting aside the proclamation of
petitioner. The COMELEC ruled that the proclamation by the district board of canvassers
was void because: (1) it was made in defiance of the verbal order by the COMELEC Chairman
relayed through Executive Director Resurrection Z. Borra to suspend the proclamation of the
winner in the congressional election until the Commission has resolved private respondent's
petition for correction of manifest error in the certificate of canvass; and (2) it was based on
an incomplete canvass. The dispositive portion of the order reads:
WHEREFORE, the proclamation made by the District Board of Canvassers of Malabon and
Navotas for the position of Congressman being void ab initio is no proclamation at all.
Meantime, it is hereby set aside.
Atty. Ma. Anne Lacuesta is hereby relieved as Chairman, District Board of Canvassers of
Malabon-Navotas, and Atty. Consuelo B. Diola is named Chairman of said Board. Atty. Diola
is directed to maintain the status quo prior to the Board's unauthorized proclamation, until
further orders.
Meantime, let these cases be set for hearing en banc on 09 June 1998 at 10:00 in the
morning.
SO ORDERED.17
On June 8, 1998, petitioner filed this petition for certiorari seeking the annulment and
reversal of said order. Petitioner contended:
1. Respondent COMELEC's annulment of petitioner Sandoval's proclamation as winner in the
election for congressman of Malabon-Navotas, without the benefit of prior hearing, is
grossly indecent and violates his right to due process of law.
2. Respondent COMELEC's action on respondent Oreta's petitions violates Republic Act 7166
which bars pre-proclamation cases in the elections of members of the House of
Representative.
3. Respondent Oreta's remedy for seeking correction of alleged manifest errors in the
certificate of canvass for members of Congress does not lie with respondent COMELEC but,
initially with the municipal board of canvassers.
4. At any rate, respondent Oreta's right to raise questions concerning alleged manifest
errors in the Malabon certificate of canvass is barred by his failure to raise such questions
before petitioner Sandoval's proclamation.
5. Respondent Oreta's recourse lies with the House of Representatives Electoral Tribunal
which is not precluded from passing upon the allegedly uncanvassed election returns in
Malabon.18
On June 9, 1998, we required the respondents to comment on the petition. We also issued a
temporary restraining order mandating the COMELEC to cease and desist from
implementing and enforcing the questioned order.19
The COMELEC nonetheless conducted a hearing on June 9, 1998 concerning SPC No. 98-143
and SPC No. 98-206.
Private respondent filed his comment20 on June 22, 1998. He argued:
1. Respondent COMELEC committed no jurisdictional error in declaring void ab initio the
proclamation of petitioner Sandoval as Congressman-elect for the Malabon-Navotas
legislative district.
a. The premature and hasty proclamation of respondent Sandoval made by the District
Board on the basis of an incomplete canvass is illegal, hence, null and void.
b. Respondent COMELEC substantially complied with the requirements of due process in
declaring the proclamation of respondent Sandoval an absolute nullity.
2. Respondent COMELEC properly took cognizance of respondent Oreta's petition to correct
manifest error in the certificate of canvass issued by the Malabon board.
a. While technically a pre-proclamation case, correction of manifest errors for purposes of
the congressional elections is within the power and authority of the COMELEC to order, in
the exercise of its appellate and original jurisdiction over such subject matter.
b. The failure of the Malabon board to tabulate the results of seventeen (17) election
returns and to record the votes supporting the certificate of canvass resulted in a manifest
error in the certificate of canvass which should be summarily corrected by ordering the
Malabon board to reconvene, canvass the 17 election returns, record the votes in the
statement of votes and prepare a new certificate of canvass.
On June 29, 1998, then Solicitor General Silvestre Bello III filed a Manifestation and Motion
in Lieu of Comment.21 He found the assailed order of the COMELEC null and void for the
following reasons:

1. Respondent COMELEC's motu propio and ex parte annulment of petitioner's proclamation
as winner in the election for congressman of Malabon-Navotas is tainted with grave abuse
of discretion amounting to lack or excess of jurisdiction and violated petitioner's right to due
process; and
2. Respondent COMELEC had no jurisdiction over the petitions filed by respondent Oreta,
hence its order dated June 2, 1998 annulling petitioner's proclamation is null and void.
In view of the Solicitor General's manifestation and motion, we required the COMELEC to
file its own comment.
The COMELEC filed its comment on August 11, 1998. It invoked its power of direct control
and supervision over the board of canvassers, allowing it to review, revise and reverse the
board's actions. It said that it rendered the questioned order upon finding that petitioner's
proclamation was illegal and therefore void ab initio. It cited two reasons to support its
findings: first, it was made in disregard of the Chairman's verbal order to suspend the
canvass and proclamation, and second, it was based on an incomplete canvass.22
On August 27, 1998, the new Solicitor General, Ricardo P. Galvez, filed a Manifestation and
Motion withdrawing the Manifestation and Motion filed by former Solicitor General Bello.
The Solicitor General, this time, upheld the validity of the assailed order. In essence, he
argued that the Malabon municipal board of canvassers failed to include 17 election returns
in its canvass; that such omission constitutes manifest error in the certificate of canvass
which must be corrected by the district board of canvassers; and that the proclamation of
petitioner was void ab initio because it was based on an incomplete canvass.23
Petitioner and private respondent subsequently filed their respective reply, rejoinder and
sur-rejoinder.
Considering the arguments raised by the parties, the issues that need to be resolved in this
case are:
1. whether the COMELEC has the power to take cognizance of SPC No. 98-143 and SPC No.
98-206, both alleging the existence of manifest error in the certificate of canvass issued by
the Malabon municipal board of canvassers and seeking to reconvene said board of
canvassers to allow it to correct the alleged error; and
2. whether the COMELEC's order to set aside petitioner's proclamation was valid.
On the first issue, we uphold the jurisdiction of the COMELEC over the petitions filed by
private respondent. As a general rule, candidates and registered political parties involved in
an election are allowed to file pre-proclamation cases before the COMELEC. Pre-
proclamation cases refer to any question pertaining to or affecting the proceedings of the
board of canvassers which may be raised by any candidate or by any registered political
party or coalition of political parties before the board or directly with the Commission, or
any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation,
transmission, receipt, custody and appreciation of election
returns.24 The COMELEC has exclusive jurisdiction over all pre-proclamation
controversies.25 As an exception, however, to the general rule, Section 15 of Republic Act
(RA) 716626 prohibits candidates in the presidential, vice-presidential, senatorial and
congressional elections from filing pre-proclamation cases.27 It states:
Sec. 15. Pre-proclamation Cases Not Allowed in Elections for President, Vice-President,
Senator, and Members of the House of Representatives. — For purposes of the elections for
President, Vice-President, Senator and Member of the House Representatives, no pre-
proclamation cases shall be allowed on matters relating to the preparation, transmission,
receipt, custody and appreciation of election returns or the certificates of canvass, as the
case may be. However, this does not preclude the authority of the appropriate canvassing
body motu propio or upon written complaint of an interested person to correct manifest
errors in the certificate of canvass or election returns before it.
The prohibition aims to avoid delay in the proclamation of the winner in the election, which
delay might result in a vacuum in these sensitive posts.28 The law, nonetheless, provides an
exception to the exception. The second sentence of Section 15 allows the filing of petitions
for correction of manifest errors in the certificate of canvass or election returns even in
elections for president, vice-president and members of the House of Representatives for the
simple reason that the correction of manifest error will not prolong the process of
canvassing nor delay the proclamation of the winner in the election. This rule is consistent
with and complements the authority of the COMELEC under the Constitution to "enforce
and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum and recall"29 and its power to "decide, except those involving the
right to vote, all questions affecting elections."30
Applying the foregoing rule, we hold that the Commission has jurisdiction over SPC No. 98-
143 and SPC No. 98-206, both filed by private respondent seeking to correct the alleged
manifest error in the certificate of canvass issued by the Malabon municipal board of
canvassers. These petitions essentially allege that there exists a manifest error in said
certificate of canvass as the board failed to include several election returns in the
canvassing. Private respondent prays that the board be reconvened to correct said error.
Section 15 of RA 7166 vests the COMELEC with jurisdiction over cases of this nature. We
reiterate the long-standing rule that jurisdiction is conferred by law and is determined by
the allegations in the petition regardless of whether or not the petitioner is entitled to the
relief sought.31
The authority to rule on petitions for correction of manifest error is vested in the COMELEC
en banc. Section 7 of Rule 27 of the 1993 COMELEC Rules of Procedure32 provides that if
the error is discovered before proclamation, the board of canvassers may motu proprio, or
upon verified petition by any candidate, political party, organization or coalition of political
parties, after due notice and hearing, correct the errors committed. The aggrieved party may
appeal the decision of the board to the Commission and said appeal shall be heard and
decided by the Commission en banc. Section 5, however, of the same rule states that a
petition for correction of manifest error may be filed directly with the Commission en banc
provided that such errors could not have been discovered during the canvassing despite the
exercise of due diligence and proclamation of the winning candidate had already been
made. Thus, we held in Ramirez vs. COMELEC:33
Although in Ong, Jr. v. COMELEC it was said that "By now it is settled that election cases
which include pre-proclamation controversies must first be heard and decided by a division
of the Commission" — and a petition for correction of manifest error in the Statement of
Votes, like SPC 95-198 is a pre-proclamation controversy—in none of the cases cited to
support this proposition was the issue the correction of a manifest error in the Statement of
Votes under Sec. 231 of the Omnibus Election Code (B.P. Blg. 881) or Sec. 15 of R.A. No.
7166. On the other hand, Rule 27, Sec. 5 of the 1993 Rules of the COMELEC expressly
provides that proclamation controversies involving, inter alia, manifest errors in the
tabulation or tallying of the results may be filed directly with the COMELEC en banc . . . .34
Petitioner nonetheless contends that SPC No. 98-143 and SPC No. 98-206 must be dismissed
because private respondent failed to raise the issue of manifest error before the
appropriate board of canvassers in accordance with the second sentence of Section 15 of RA
7166.
We disagree.
The issue of manifest error in the certificate of canvass for Malabon has been raised before
the district board of canvassers before petitioner could be proclaimed and said board has in
fact ruled on the issue.35 We find this as sufficient compliance with the law. The facts show
that it was impossible for private respondent to raise the issue before the Malabon
municipal board of canvassers as it still did not have a copy of the statement of votes and
the precinct list at the time of the canvassing in the municipal level. At that time, private
respondent still had no knowledge of the alleged manifest error. He, however, lost no time
in notifying the COMELEC Chairman and the district board of the alleged error upon
discovery thereof. We find petitioner's argument, therefore, to be devoid of merit.
We now go to the second issue. Although the COMELEC is clothed with jurisdiction over the
subject matter and issue of SPC No. 98-143 and SPC No. 98-206, we find the exercise of its
jurisdiction tainted with illegality. We hold that its order to set aside the proclamation of
petitioner is invalid for having been rendered without due process of law. Procedural due
process demands prior notice and hearing. Then after the hearing, it is also necessary that
the tribunal show substantial evidence to support its ruling.36 In other words, due process
requires that a party be given an opportunity to adduce his evidence to support his side of
the case and that the evidence should be considered in the adjudication of the case.37 The
facts show that COMELEC set aside the proclamation of petitioner without the benefit of
prior notice and hearing and it rendered the questioned order based solely on private
respondent's allegations. We held in Bince, Jr. vs. COMELEC:38
Petitioner cannot be deprived of his office without due process of law. Although public
office is not property under Section 1 of the Bill of Rights of the Constitution, and one
cannot acquire a vested right to public office, it is, nevertheless, a protected right. Due
process in proceedings before the COMELEC, exercising its quasi-judicial functions, requires
due notice and hearing, among others. Thus, although the COMELEC possesses, in
appropriate cases, the power to annul or suspend the proclamation of any candidate, We
had ruled in Farinas vs. Commission on Elections, Reyes vs. Commission on Elections and
Gallardo vs. Commission on Elections that the COMELEC is without power to partially or
totally annul a proclamation or suspend the effects of a proclamation without notice and
hearing.39
Citing Section 242 of the Omnibus Election Code, private respondent argues that the
COMELEC is authorized to annul an illegal proclamation even without notice and hearing
because the law states that it may motu proprio order a partial or total suspension of the
proclamation of any candidate-elect or annul partially or totally any proclamation, if one has
been made. We reject the argument. Section 242 of the Omnibus Election Code reads as:
Sec. 242. Commission's exclusive jurisdiction of all pre-proclamation controversies. — The
Commission shall have exclusive jurisdiction of all pre-proclamation controversies. It may
motu proprio or upon written petition, and after due notice and hearing, order the partial or
total suspension of the proclamation of any candidate-elect or annul partially or totally any
proclamation, if one has been made, as the evidence shall warrant in accordance with the
succeeding sections.
The phrase "motu proprio" does not refer to the annulment of proclamation but to the
manner of initiating the proceedings to annul a proclamation made by the board of
canvassers. The law provides two ways by which annulment proceedings may be initiated. It
may be at the own initiative of the COMELEC (motu proprio) or by written petition. In either
case; notice and hearing is required. This is clear from the language of the law.
We likewise reject private respondent's assertion that the hearing held on June 9, 1998
substantially satisfies the due process requirement. The law requires that the hearing be
held before the COMELEC rules on the petition. Here, the public respondent first issued an
order annulling the proclamation of petitioner and then set the date of the hearing. We
explained in Farinas vs. COMELEC 40 the pernicious effect of such procedure:
As aptly pointed out by the Solicitor General, "to sanction the immediate annulment or even
the suspension of the effects of a proclamation before the petition seeking such annulment
or suspension of its effects shall have been heard would open the floodgates of
unsubstantiated petitions after the results are known, considering the propensity of the
losing candidates to put up all sorts of obstacles in an open display of unwillingness to
accept defeat, or would encourage the filing of baseless petitions not only to the damage
and prejudice of winning candidates but also to the frustration of the sovereign will of the
electorate." (citations omitted)
the questioned certificate of canvass requires the COMELEC to act as an arbiter. It behooves
the Commission to hear both parties to determine the veracity of their allegations and to
decide whether the alleged error is a manifest error. Hence, the resolution of this issue calls
for the exercise by the COMELEC of its quasi-judicial power. It has been said that where a
power rests in judgment or discretion, so that it is of judicial nature or character, but does
not involve the exercise of functions of a judge, or is conferred upon an officer other than a
judicial officer, it is deemed quasi-judicial.41 The COMELEC therefore, acting as quasi-judicial
tribunal, cannot ignore the requirements of procedural due process in resolving the
petitions filed by private respondent.
IN VIEW WHEREOF, the COMELEC order dated June 2, 1998 in SPC No. 98-143 and SPC No.
98-206 is ANNULLED. This case is REMANDED to the COMELEC and the Commission is
hereby ordered to hold a hearing on the issues presented in SPC No. 98-143 and SPC No. 98-
206, and thereafter render a decision based on the evidence adduced and the applicable
laws. The incident of whether or not petitioner may continue discharging the functions of
the office of the congressman pending resolution of the case on its merit shall be addressed
by the COMELEC in the exercise of its reasonable discretion.
SO ORDERED.1âwphi1.nêt

Public respondent submits that procedural due process need not be observed in this case
because it was merely exercising its administrative power to review, revise and reverse the
actions of the board of canvassers. It set aside the proclamation made by the district board
of canvassers for the position of congressman upon finding that it was tainted with illegality.

We cannot accept public respondent's argument.

Taking cognizance of private respondent's petitions for annulment of petitioner's

proclamation; COMELEC was not merely performing an administrative function. The
administrative powers of the COMELEC include the power to determine the number and
location of polling places, appoint election officials and inspectors, conduct registration of
voters, deputize law enforcement agencies and government instrumentalities to ensure
free, orderly, honest, peaceful and credible elections, register political parties, organizations
or coalitions, accredit citizens' arms of the Commission, prosecute election offenses, and
recommend to the President the removal of or imposition of any other disciplinary action
upon any officer or employee it has deputized for violation or disregard of its directive,
order or decision. In addition, the Commission also has direct control and supervision over
all personnel involved in the conduct of election. However, the resolution of the adverse
claims of private respondent and petitioner as regards the existence of a manifest error in