VII.

ELECTION CAMPAIGN AND PROPAGANDA

1. Penera vs. COMELEC and Andanar G.R. No. 181613, September 11, 2009

FACTS: Penera and private respondent Edgar T. Andanar were mayoralty candidates in
Sta. Monica, Surigao del Norte during the 14 May 2007 elections. On 2 April 2007,
Andanar filed before the Office of the Regional Election Director (ORED), Caraga
Region (Region XIII), a Petition for Disqualification against Penera, as well as the
candidates for Vice-Mayor and Sangguniang Bayan who belonged to her political party,
for unlawfully engaging in election campaigning and partisan political activity prior to the
commencement of the campaign period. Andanar claimed that on 29 March 2007 – a
day before the start of the authorized campaign period on 30 March 2007 – Penera and
her partymates went around the different barangays in Sta. Monica, announcing their
candidacies and requesting the people to vote for them on the day of the elections.
Penera alone filed an Answer denying the charges but admitted that a motorcade did
take place and that it was simply in accordance with the usual practice in nearby cities
and provinces, where the filing of certificates of candidacy (COCs) was preceded by a
motorcade, which dispersed soon after the completion of such filing. The COMELEC
disqualified Penera but absolved the other candidates from Penera’s party from
violation of section 80 and 68 of the Omnibus Election Code.

ISSUE: Whether or not the new definition of the term “candidate” in Section 15 of RA
8436 as amended by RA 9369 is in conflict with Section 80 of the Omnibus Election
Code such that premature campaigning may no longer be committed

RULING: In denying Penera’s petition, the Supreme Court, through Associate Justice
Minita V. ChicoNazario, found that Penera and her witnesses admitted that the vehicles,
consisting of two jeepneys and ten motorcycles, were festooned with multi-colored
balloons; the motorcade went around three barangays in Sta. Monica; and Penera and
her partymates waved their hands and threw sweet candies to the crowd. Thus, for
violating Section 80 of the Omnibus Election Code, proscribing election campaign or
partisan political activity outside the campaign period, Penera was disqualified from
holding the office of Mayor of Sta. Monica. The Court declared that “there is no absolute
and irreconcilable incompatibility between Section 15 of Republic Act No. 8436, as
amended, and Section 80 of the Omnibus Election Code, which defines the prohibited
act of premature campaigning. It is possible to harmonize and reconcile these two
provisions and, thus, give effect to both.” The Court held, further, that: “True, that
pursuant to Section 15 of Republic Act No. 8436, as amended, even after the filing of
the COC but before the start of the campaign period, a person is not yet officially
considered a candidate. Nevertheless, a person, upon the filing of his/her COC, already
explicitly declares his/her intention to run as a candidate in the coming elections. The
commission by such a person of any of the acts enumerated under Section 79(b) of the
Omnibus Election Code (i.e., holding rallies or parades, making speeches, etc.) can,
thus, be logically and reasonably construed as for the purpose of promoting his/her
intended candidacy. When the campaign period starts and said person proceeds with
his/her candidacy, his/her intent turning into actuality, we can already consider his/her
acts, after the filing of his/her COC and prior to the campaign period, as the promotion
of his/her election as a candidate, hence, constituting premature campaigning, for which
he/she may be disqualified. Also, conversely, if said person, for any reason, withdraws
his/her COC before the campaign period, then there is no point to view his/her acts prior
to said period as acts for the promotion of his/her election as a candidate. In the latter
case, there can be no premature campaigning as there is no candidate, whose
disqualification may be sought, to begin with. Third, in connection with the preceding
discussion, the line in Section 15 of Republic Act No. 8436, as amended, which
provides that “any unlawful act or omission applicable to a candidate shall take effect
only upon the start of the campaign period,” does not mean that the acts constituting
premature campaigning can only be committed, for which the offender may be
disqualified, during the campaign period. Contrary to the pronouncement in the dissent,
nowhere in the said proviso was it stated that campaigning before the start of the
campaign period is lawful, such that the offender may freely carry out the same with
impunity. As previously established, a person, after filing his/her COC but prior to
his/her becoming a candidate (thus, prior to the start of the campaign period), can
already commit the acts described under Section 79(b) of the Omnibus Election Code
as election campaign or partisan political activity. However, only after said person
officially becomes a candidate, at the beginning of the campaign period, can said acts
be given effect as premature campaigning under Section 80 of the Omnibus Election
Code. Only after said person officially becomes a candidate, at the start of the
campaign period, can his/her disqualification be sought for acts constituting premature
campaigning. Obviously, it is only at the start of the campaign period, when the person
officially becomes a candidate, that the undue and iniquitous advantages of his/her prior
acts, constituting premature campaigning, shall accrue to his/her benefit. Compared to
the other candidates who are only about to begin their election campaign, a candidate
who had previously engaged in premature campaigning already enjoys an unfair
headstart in promoting his/her candidacy. As can be gleaned from the foregoing
disquisition, harmony in the provisions of Sections 80 and 79 of the Omnibus Election
Code, as well as Section 15 of Republic Act No. 8436, as amended, is not only very
possible, but in fact desirable, necessary and consistent with the legislative intent and
policy of the law.” The September 21, 2009 Decision was a close fight with 8 votes in
favour and 7 against. Aggrieved, Mayor Penera filed a Motion for Reconsideration.
2. Penera v. COMELEC (Resolution of Motion for Reconsideration) G.R. No. 181613,
Nov. 25, 2009

FACTS: Penera and private respondent Edgar T. Andanar were mayoralty candidates in
Sta. Monica, Surigao del Norte during the 14 May 2007 elections. On 2 April 2007,
Andanar filed before the Office of the Regional Election Director (ORED), Caraga
Region (Region XIII), a Petition for Disqualification against Penera, as well as the
candidates for Vice-Mayor and Sangguniang Bayan who belonged to her political party,
for unlawfully engaging in election campaigning and partisan political activity prior to the
commencement of the campaign period. Andanar claimed that on 29 March 2007 – a
day before the start of the authorized campaign period on 30 March 2007 – Penera and
her partymates went around the different barangays in Sta. Monica, announcing their
candidacies and requesting the people to vote for them on the day of the elections.
Penera alone filed an Answer denying the charges but admitted that a motorcade did
take place and that it was simply in accordance with the usual practice in nearby cities
and provinces, where the filing of certificates of candidacy (COCs) was preceded by a
motorcade, which dispersed soon after the completion of such filing. The COMELEC
disqualified Penera but absolved the other candidates from Penera’s party from
violation of section 80 and 68 of the Omnibus Election Code.

ISSUE: Whether or not Penera is liable for premature campaigning?

RULING: NO. As explained by the Supreme Court in the case of Lanot vs. COMELEC,
a person who files a certificate of candidacy is not a candidate until the start of the
campaign period. Thus, the essential elements for violation of Section 80 of the
Omnibus Election Code are: (1) a person engages in an election campaign or partisan
political activity; (2) the act is designed to promote the election or defeat of a particular
candidate or candidates; (3) the act is done outside the campaign period. The second
element requires the existence of a “candidate.” Under Section 79(a), a candidate is
one who “has filed a certificate of candidacy” to an elective public office. Unless one has
filed his certificate of candidacy, he is not a “candidate.” The third element requires that
the campaign period has not started when the election campaign or partisan political
activity is committed. Assuming that all candidates to a public office file their certificates
of candidacy on the last day, which under Section 75 of the Omnibus Election Code is
the day before the start of the campaign period, then no one can be prosecuted for
violation of Section 80 for acts done prior to such last day. Before such last day, there is
no “particular candidate or candidates” to campaign for or against. On the day
immediately after the last day of filing, the campaign period starts and Section 80
ceases to apply since Section 80 covers only acts done “outside” the campaign period.
Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may
only apply to acts done on such last day, which is before the start of the campaign
period and after at least one candidate has filed his certificate of candidacy. This is
perhaps the reason why those running for elective public office usually file their
certificates of candidacy on the last day or close to the last day. The campaign period
for local officials began on 30 March 2007 and ended on 12 May 2007. Penera filed her
certificate of candidacy on 29 March 2007. Penera was thus a candidate on 29 March
2009 only for purposes of printing the ballots. On 29 March 2007, the law still did not
consider Penera a candidate for purposes other than the printing of ballots. Acts
committed by Penera prior to 30 March 2007, the date when she became a “candidate,”
even if constituting election campaigning or partisan political activities, are not
punishable under Section 80 of the Omnibus Election Code. Such acts are within the
realm of a citizen’s protected freedom of expression. Acts committed by Penera within
the campaign period are not covered by Section 80 as Section 80 punishes only acts
outside the campaign period. Congress has laid down the law — a candidate is liable
for election offenses only upon the start of the campaign period. This Court has no
power to ignore the clear and express mandate of the law that “any person who files his
certificate of candidacy within [the filing] period shall only be considered a candidate at
the start of the campaign period for which he filed his certificate of candidacy.” Neither
can this Court turn a blind eye to the express and clear language of the law that “any
unlawful act or omission applicable to a candidate shall take effect only upon the start of
the campaign period.” In layman’s language, this means that a candidate is liable for an
election offense only for acts done during the campaign period, not before. The law is
clear as daylight — any election offense that may be committed by a candidate under
any election law cannot be committed before the start of the campaign period. In ruling
that Penera is liable for premature campaigning for partisan political acts before the
start of the campaigning, the assailed Decision ignores the clear and express provision
of the law.
3. Chavez v. COMELEC, G.R. NO. 162777, August 31, 2004

FACTS: Petitioner Chavez, on various dates, entered into formal agreements with
certain establishments to endorse their products. Pursuant to these agreements, three
billboards were set up showing petitioner promoting the products of said
establishments. On December 30, 2003, however, petitioner filed his certificate of
candidacy for the position of Senator. On January 6, 2004, respondent COMELEC
issued Resolution No. 6520, which contained Section 32: Section 32. All propaganda
materials such as posters, streamers, stickers or paintings on walls and other materials
showing the picture, image, or name of a person, and all advertisements on print, in
radio or on television showing the image or mentioning the name of a person, who
subsequent to the placement or display thereof becomes a candidate for public office
shall be immediately removed by said candidate and radio station, print media or
television station within 3 days after the effectivity of these implementing rules;
otherwise, he and said radio station, print media or television station shall be presumed
to have conducted premature campaigning in violation of Section 80 of the Omnibus
Election Code. On January 21, 2004, petitioner was directed to comply with the said
provision by the COMELEC's Law Department. He replied, by requesting the
COMELEC that he be informed as to how he may have violated the assailed provision.
He sent another letter, this time asking the COMELEC that he be exempted from the
application of Section 32, considering that the billboards adverted to are mere product
endorsements and cannot be construed as paraphernalia for premature campaigning
under the rules. The COMELEC, however, ordered him to remove or cause the removal
of the billboards, or to cover them from public view pending the approval of his request.
Feeling aggrieved, petitioner Chavez filed a petition for prohibition with the SC, asking
that the COMELEC be enjoined from enforcing the assailed provision. He urges the
Court to declare the assailed provision unconstitutional as the same is allegedly (1) a
gross violation of the non-impairment clause; (2) an invalid exercise of police power; (3)
in the nature of an ex-post facto law; (4) contrary to the Fair Elections Act; and (5)
invalid due to overbreadth.

ISSUE: Is Section 2 of COMELEC Resolution No. 6520 unconstitutional?

RULING: Petitioner argues that the billboards, while they exhibit his name and image,
do not at all announce his candidacy for any public office nor solicit support for such
candidacy from the electorate. They are, he claims, mere product endorsements and
not election propaganda. Prohibiting, therefore, their exhibition to the public is not within
the scope of the powers of the COMELEC. Police power, as an inherent attribute of
sovereignty, is the power to prescribe regulations to promote the health, morals, peace,
education, good order, or safety, and the general welfare of the people. To determine
the validity of a police measure, two questions must be asked: (1) Does the interest of
the public in general, as distinguished from those of a particular class, require the
exercise of police power? and (2) Are the means employed reasonably necessary for
the accomplishment of the purpose and not unduly oppressive upon individuals? A
close examination of the assailed provision reveals that its primary objectives are to
prohibit premature campaigning and to level the playing field for candidates of public
office, to equalize the situation between popular or rich candidates, on one hand, and
lesser-known or poorer candidates, on the other, by preventing the former from enjoying
undue advantage in exposure and publicity on account of their resources and
popularity. Moreover, petitioner cannot claim that the subject billboards are purely
product endorsements and do not announce nor solicit any support for his candidacy.
Under the Omnibus Election Code, election campaign or partisan political activity is
defined as an act designed to promote the election or defeat of a particular candidate or
candidates to a public office. It includes directly or indirectly soliciting votes, pledges or
support for or against a candidate. It is true that when petitioner entered into the
contracts or agreements to endorse certain products, he acted as a private individual
and had all the right to lend his name and image to these products. However, when he
filed his certificate of candidacy for Senator, the billboards featuring his name and
image assumed partisan political character because the same indirectly promoted his
candidacy. Therefore, the COMELEC was acting well within its scope of powers when it
required petitioner to discontinue the display of the subject billboards. If the subject
billboards were to be allowed, candidates for public office whose name and image are
used to advertise commercial products would have more opportunity to make
themselves known to the electorate, to the disadvantage of other candidates who do not
have the same chance of lending their faces and names to endorse popular commercial
products as image models. Similarly, an individual intending to run for public office
within the next few months, could pay private corporations to use him as their image
model with the intention of familiarizing the public with his name and image even before
the start of the campaign period. This, without a doubt, would be a circumvention of the
rule against premature campaigning. Non-impairment of contract Section 32 is not a
gross violation of the non-impairment clause. The non-impairment clause of the
Constitution must yield to the loftier purposes targeted by the Government. Equal
opportunity to proffer oneself for public office, without regard to the level of financial
resources one may have at his disposal, is indeed of vital interest to the public. The
State has the duty to enact and implement rules to safeguard this interest. Time and
again, this Court has said that contracts affecting public interest contain an implied
reservation of the police power as a postulate of the existing legal order. This power can
be activated at anytime to change the provisions of the contract, or even abrogate it
entirely, for the promotion or protection of the general welfare. Such an act will not
militate against the impairment clause, which is subject to and limited by the paramount
police power. Ex post facto law Petitioner argued that the assailed provision makes an
individual criminally liable for an election offense for not removing such advertisement,
even if at the time the said advertisement was exhibited, the same was clearly legal.
Hence, it makes a person, whose name or image is featured in any such advertisement,
liable for premature campaigning under the Omnibus Election Code. Section 32,
although not penal in nature, defines an offense and prescribes a penalty for said
offense. Laws of this nature must operate prospectively, except when they are favorable
to the accused. It should be noted, however, that the offense defined in the assailed
provision is not the putting up of propaganda materials such as posters, streamers,
stickers or paintings on walls and other materials showing the picture, image or name of
a person, and all advertisements on print, in radio or on television showing the image or
mentioning the name of a person, who subsequent to the placement or display thereof
becomes a candidate for public office. Nor does it prohibit or consider an offense the
entering of contracts for such propaganda materials by an individual who subsequently
becomes a candidate for public office. One definitely does not commit an offense by
entering into a contract with private parties to use his name and image to endorse
certain products prior to his becoming a candidate for public office. The offense, as
expressly prescribed in the assailed provision, is the non-removal of the described
propaganda materials three (3) days after the effectivity of COMELEC Resolution No.
6520. If the candidate for public office fails to remove such propaganda materials after
the given period, he shall be liable under Section 80 of the Omnibus Election Code for
premature campaigning. Indeed, nowhere is it indicated in the assailed provision that it
shall operate retroactively. There is, therefore, no ex post facto law in this case. Fair
Elections Act Next, petitioner urges that Section 32 is a violation of the Fair Elections
Act. According to him, under this law, billboards are already permitted as lawful election
propaganda. He claims, therefore, that the COMELEC, in effectively prohibiting the use
of billboards as a form of election propaganda through the assailed provision, violated
the Fair Elections Act. Petitioners argument is not tenable. The Solicitor General rightly
points out that the assailed provision does not prohibit billboards as lawful election
propaganda. It only regulates their use to prevent premature campaigning and to
equalize, as much as practicable, the situation of all candidates by preventing popular
and rich candidates from gaining undue advantage in exposure and publicity on account
of their resources and popularity. Moreover, by regulating the use of such election
propaganda materials, the COMELEC is merely doing its duty under the law.
Overbreadth A statute or regulation is considered void for over breadth when it offends
the constitutional principle that a governmental purpose to control or prevent activities
constitutionally subject to State regulations may not be achieved by means that sweep
unnecessarily broadly and thereby invade the area of protected freedoms. The provision
in question is limited in its operation both as to time and scope. It only disallows the
continued display of a persons propaganda materials and advertisements after he has
filed a certificate of candidacy and before the start of the campaign period. Said
materials and advertisements must also show his name and image. There is no blanket
prohibition of the use of propaganda materials and advertisements. During the
campaign period, these may be used subject only to reasonable limitations necessary
and incidental to achieving the purpose of preventing premature campaigning and
promoting equality of opportunities among all candidates. The provision, therefore, is
not invalid on the ground of over breadth.

4. ABS-CBN v. COMELEC, G.R. No. 133486, January 28, 2000

FACTS: The petitioner filed a petition for certiorari under Rule 65 of the Rules of Court
assailing COMELEC Res. No. 98-1419 which resolved to approve the issuance of
restraining order to stop the petitioner or any groups, its agents or representatives from
conducting exit survey. The electoral body believed that the exit survey might conflict
with the official COMELEC count, as well as the unofficial quick count of the National
Movement for Free Elections (NAMFREL). It also had not authorized or deputized
petitioner to undertake the exit survey. The petitioner filed for a temporary restraining
order which was granted by the court on May 9, 1998. Solicitor General contends that
the petition is already moot and academic because the May 11, 1998 elections has
already been held and done with and there is no longer any actual controversy. SG
further contends that the Petition should be dismissed for petitioner’s failure to exhaust
available remedies before issuing forum, especially the filling of a motion for
reconsideration. The Court believed that the issue is not totally moot because of the
basic feature of our democratic government which is the periodic elections where exit
polling is said to be tied with it. The Court ruled that the procedural requirement may be
glossed over to prevent a miscarriage of justice when the need for relief is extremely
urgent and certiorari is the only adequate and speedy remedy available. The Court
based its judgment on the span of time the instant petition was filed by the respondent
and the time when the petitioner got hold of a copy thereof. Under the circumstances,
the court believed that there was hardly enough opportunity to move for reconsideration
and to obtain a swift resolution in time for the May 11, 1998 elections. Moreover, not
only is time of the essence; the Petition involves transcendental constitutional issues.
And the court also resolved to settle the issue because the fundamental freedoms of
speech and of the press are being invoked. The petitioner argues that holding of exit
polls and the nationwide reporting of their results are valid exercises of the freedoms of
speech and of the press.That the COMELEC gravely abuse its discretion and grossly
violated the petitioner’s constitutional right. Argument of the Respondent: It insists that
the issuance was "pursuant to its constitutional and statutory powers to promote a
clean, honest, orderly and credible May 11, 1998 elections" and "to protect, preserve
and maintain the secrecy and sanctity of the ballot." That "exit surveys indirectly violate
the constitutional principle to preserve the sanctity of the ballots," as the "voters are
lured to reveal the contents of ballots," in violation of Section 2, Article V of the
Constitution; and relevant provisions of the Omnibus Election Code. That the exit poll
has a clear and present danger of destroying the credibility and integrity of the electoral
process

ISSUE: Whether or not the respondent acted with grave abuse of discretion amounting
to a lack or excess of jurisdiction when it approved the issuance of a restraining order
enjoining the petitioner or any other group, its agents or representatives from
conducting exit polls during the May 11, 1998 elections.
RULING: Validity of Conducting Exit Polls: No law prohibits the holding and the
reporting of exit polls. Nature and Scope of Freedoms of Speech and of the Press:
Freedom of expression is a fundamental principle of our democratic government. Our
Constitution clearly mandates that no law shall be passed abridging the freedom of
speech or of the press. Limitation: a limitation on the freedom of expression may be
justified only by a danger of such substantive character that the state has a right to
prevent. Even though the government’s purpose is legitimate and substantial, they
cannot be pursued by means that broadly conceal fundamental liberties, when the end
can be more narrowly achieved. Secrecy of the Ballots The Court noted that the
COMELEC has the duty to secure the secrecy of the ballot and to preserve the sanctity
and the integrity of the electoral process. However, in order to justify a restriction of the
people's freedoms of speech and of the press, the state's responsibility of ensuring
orderly voting must far outweigh them. The Court contends that the contention of public
respondent that exit polls indirectly violated the sanctity of the ballot is off-tangent to the
real issue. The reason behind the principle of ballot secrecy is to avoid vote buying
through voter identification. What is forbidden is the association of voters with their
respective votes, for the purpose of assuring that the votes have been casted in
accordance with the instruction of a third party. In exit polls, the contents of the official
ballot are not actually exposed. Moreover, the revelation of whom an elector has voted
for is not compulsory, but VOLUNTARY. On the contention of the COMELEC that exit
poll has a clear and present danger of destroying the credibility and integrity of the
electoral process, the court ruled that such arguments are purely speculative and clearly
untenable. Because: 1) the participants are selected at random; 2) the survey result is
not meant to replace or be at par with the official COMELEC count. It is merely an
opinion. 3) credibility and integrity of the elections are not at stake here. The holding
and the reporting of the results of exit polls cannot undermine those of the elections,
since the exit poll is only part of the election. The Court argues that the COMELEC has
other valid and reasonable ways and means to avoid or minimize disorder and
confusion that may be brought about by exit surveys. The petition is granted and the
temporary restraining order issued by the court is made permanent. Resolution No. 98-
1419 issued by the COMELEC is nullified and set aside.
5. G.R. No. 147571 May 5, 2001 SOCIAL WEATHER STATIONS, INCORPORATED
and KAMAHALAN PUBLISHING CORPORATION, doing business as MANILA
STANDARD, petitioners, vs. COMMISSION ON ELECTIONS, respondent.

FACTS : Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-
profit social research institution conducting surveys in various fields, including
economics, politics, demography, and social development, and thereafter processing,
analyzing, and publicly reporting the results thereof. On the other hand, petitioner
Kamahalan Publishing Corporation publishes the Manila Standard, a newspaper of
general circulation, which features news- worthy items of information including election
surveys Petitioners brought this action for prohibition to enjoin the Commission on
Elections from enforcing §5.4 of RA. No.9006 (Fair Election Act), which provides:
Surveys affecting national candidates shall not be published fifteen (15) days before an
election and surveys affecting local candidates shall not be published seven (7) days
be- fore an election. Petitioner SWS states that it wishes to conduct an election survey
throughout the period of the elections both at the national and local levels and release
to the media the results of such survey as well as publish them directly. Petitioner
Kamahalan Publishing Corporation, on the other hand, states that it intends to publish
election survey results up to the last day of the elections on May 14,2001

ISSUE: Whether Sec. 4 of R.A. No. 9006 constitutes an unconstitutional abridgment of

freedom of speech, expression, and the press.

RULING: What test should then be employed to determine the constitutional validity of
5.4? The United States Supreme Court, through Chief Justice Warren, held in United
States v. O 'Brien: Government regulation is sufficiently justified if it is within the
constitutional power of the Government; if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated to the suppression of
free expression; and if the incidental restriction on alleged First Amendment freedoms
[of speech, expression and press is no greater than is essential to the furtherance of
that interest. This is so far the most influential test for distinguishing content-based from
content neutral regulations and is said to have "become canonical in the review of such
laws." is noteworthy that the O 'Brien test has been applied by this Court in at least two
cases First. Sec. 5.4 fails to meet criterion of the O 'Brien test because the causal
connection of expression to the asserted governmental interest makes such interest
"not related to the suppression of free expression." By prohibiting the publication of
election survey results because of the possibility that such publication might undermine
the integrity of the election, 5.4 actually suppresses a whole class of expression, while
allowing the expression of opinion concerning the same subject matter by newspaper
columnists, radio and TV commentators, armchair theorists, and other opinion takers
Even if the governmental interest sought to be promoted is unrelated to the suppression
of speech and the resulting restriction of free expression is only incidental, 5.4
nonetheless fails to meet criterion of the O'Brien test, namely, that the restriction be not
greater than is necessary to further the governmental interest. As already stated, 5.4
aims at the prevention of lastminute pressure on voters, the creation of bandwagon
effect, "junking" of weak or "losing" candidates, and resort to the form of election
cheating called "dagdag-bawas." Praiseworthy as these aims of the regulation might be,
they cannot be attained at the sacrifice of the fundamental right of expression, when
such aim can be more narrowly pursued by punishing unlawful acts, rather than
speechbecause of apprehension that such speech creates the danger of such evils To
summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on
the freedom of expression, (2) it is a direct and total suppression of a category of
expression even though such suppression is only for a limited period, and (3) the
governmental interest sought to be promoted can be achieved by means other than
suppression of freedom of expression.
VIII. ELECTORAL CONTRIBUTIONS AND PROPAGANDA 1.[ GR No. L-30482, Jun
16, 1978 ] EMILIA V. VDA. DE HALILI v. CA

FACTS: The administratrix of the estate of the late Fortunato F. Halili appealed from the
decision of the Court of Appeals, holding that four promissory notes and the lease
contract executed by Federico Suntay were void because their object or purpose was
illegal for being in contravention of sections 47 and 48 of the Revised Election Code
which, respectively, deal with prohibited contributions and limit the expenses of
candidates in an election campaign. In that same decision, Halili was ordered to pay
Suntay the sum of P8,000 as annual rental for the latter's fishpond from October 1, 1955
until the possession thereof is restored to Suntay (Suntay vs. Halili, CA-G. R. No.
30136-R, February 27, 1969 [per Concepcion Jr., J., Villamor and Mojica, JJ.,
concurring]). The facts and relevant legal provisions supporting that decision are as
follows: Federico Suntay was the official gubernatorial candidate of the Liberal Party in
Bulacan in the 1951 elections. Fortunato F. Halili, the incumbent governor and the head
of the Liberal Party in Bulacan, was Suntay's campaign manager. At the same time,
Halili was a public utility operator. Suntay needed funds to finance his campaign, funds
that Halili, as campaign manager, would disburse. Suntay found that Halili, apparently
an affluent politician-businessman, could solve his financial problem. Out of friendship,
Halili agreed to make cash advances to Suntay.

ISSUE: Whether or not section 48 applies to a non-candidate; whether or not section 47

applies to a natural person; assuming arguendo that Halili violated sections 47 and 48,
whether he was in pari delicto with Suntay or he was less guilty than him, and whether
or not affirmative relief was properly granted to Suntay although he and Halili were
allegedly in pari delicto.

RULING: That factual contention is devoid of merit because Halili admitted the
allegations in Suntay's complaint that Halili was aware that Suntay would incur
campaign expenses exceeding the governor's annual salary and that Suntay's
disbursements exceeded that amount (pp. 4 and 34, Record on Appeal). Moreover, the
Court of Appeals found that "Halili was fully aware of the purpose and objective in
consummating the lease contract and the promissory notes, that is, to sustain the
campaign funds of plaintiff Suntay" and that "Halili cannot feign lack of knowledge" of
that purpose. Halili, as governor and as Suntay's campaign manager, could not have
been ignorant of the fact that under section 48 Suntay's campaign expenses should not
exceed P5,000. The Court of Appeals found as a fact that the rental of P32,000 and the
loans amounting to P55,000 were "evidently designed to promote an unlawful object, to
wit, to be spent in Suntay's political campaign" and that it was in excess of the
governor's salary for one year. Those factual findings are conclusive and cannot be
reviewed in this appeal. So, the rule that an agreement is illegal if it involves the
commission of a crime applies to this case (17 C. J.S. 986). Appellant's contention that
section 48 does not apply to a non-candidate like Halili is not tenable under section 184
of the Revised Election Code which speaks of principals and accomplices. Halili was no
ordinary lender and lessee. He knew that the rental and the loans would be spent for
Suntay's candidacy. He was not only Suntay's financial backer but, as campaign
manager, he had a hand in the expenditure of the funds supplied by him to Suntay. He
was Suntay's co-principal. There is a ruling that money knowingly loaned to be corruptly
used in an election cannot be recovered (Brock vs. Wilson, 161 S. W. 2nd 637, 290 Ky.
425). The knowledge of the lender and the borrower to a promissory note that the
money borrowed from the payee was to be used, and was actually used, to bring the
electors to vote for the maker was held to be a good defense to an action on the note
(Rose vs. Finley's Executor, 63 S. W. 2nd 948, 250 Ky. 769).
2. Pilar v. COMELEC, G.R. No. 115245, July 11, 1995

FACTS: On March 22, 1992, petitioner Juanito C. Pilar filed his certificate of candidacy
for the position of member of the Sangguniang Panlalawigan of the Province of Isabela.
On March 25, 1992, petitioner withdrew his certificate of candidacy. In M.R. Nos. 93-
2654 and 94-0065 dated November 3, 1993 and February 13, 1994 respectively, the
COMELEC imposed upon petitioner the fine of Ten Thousand Pesos (P10,000.00) for
failure to file his statement of contributions and expenditures. In M.R. No. 94-0594 dated
February 24, 1994, the COMELEC denied the motion for reconsideration of petitioner
and deemed final M.R. Nos. 93-2654 and 94-0065. Petitioner went to the COMELEC En
Banc (UND No. 94-040), which denied the petition in a Resolution dated April 28, 1994.
Petition for certiorari was subsequently filed to the Supreme Court. Petitioner argues
that he cannot be held liable for failure to file a statement of contributions and
expenditures because he was a “non-candidate,” having withdrawn his certificates of
candidacy three days after its filing. Petitioner posits that “it is . . . clear from the law that
candidate must have entered the political contest, and should have either won or lost”
under Section 14 of R.A. 7166 entitled “An Act Providing for Synchronized National and
Local Elections and for Electoral Reforms, Authorizing Appropriations Therefor, and for
Other Purposes”.

ISSUE: Whether or not Section 14 of R.A. No. 7166 excludes candidates who already
withdrew their candidacy for election.

RULING: NO. Petition was dismissed for lack of merit. Well-recognized is the rule that
where the law does not distinguish, courts should not distinguish, ubi lex non distinguit
nec nos distinguere debemus. In the case at bench, as the law makes no distinction or
qualification as to whether the candidate pursued his candidacy or withdrew the same,
the term “every candidate” must be deemed to refer not only to a candidate who
pursued his campaign, but also to one who withdrew his candidacy. Also, under the
fourth paragraph of Section 73 of the B.P. Blg. 881 or the Omnibus Election Code of the
Philippines, it is provided that “[t]he filing or withdrawal of certificate of candidacy shall
not affect whatever civil, criminal or administrative liabilities which a candidate may have
incurred.” Petitioner’s withdrawal of his candidacy did not extinguish his liability for the
administrative fine.
IX. CASTING OF VOTES AND ABSENTEE VOTING

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

FACTS: The 28th May 1997 decision of the House of Representatives Electoral
Tribunal ("HRET"), which affirmed the proclamation of herein private respondent Jose
Tan Ramirez declaring him to be the duly elected Representative of Eastern Samar for
having obtained the plurality of votes over petitioner Marcelino Libanan, and the 20th
June 1997 resolution of the HRET, which denied with finality petitioner's motion for
reconsideration, are sought to be annulled in this special civil action for certiorari.
Petitioner Marcelino Libanan and private respondent Jose Ramirez were among the
candidates for the lone congressional seat of Eastern Samar in the May 1995 elections.
After the canvass of the returns was made on 13 May 1995, the Provincial Board of
Canvassers of Eastern Samar proclaimed respondent Ramirez to have been duly
elected Representative of the District with a total of forty-one thousand five hundred
twenty-three (41,523) votes, compared to petitioner's forty thousand eight hundred sixty-
nine (40,869) votes, or a margin of six hundred fifty-four(654) votes over those of
petitioner. Petitioner Libanan seasonably filed an election protest before the HRET
claiming, among other things, that the 08th May 1995 elections in Eastern Samar were
marred by massive electoral irregularities perpetrated or instigated by respondent
Ramirez, as well as his leaders and followers, in the twenty-three (23) municipalities of
the lone district of Eastern Samar with the aid, in various instances, of peace officers
supposedly charged with maintaining an orderly and honest election. Petitioner
contested seventy-nine (79) precincts in five (5) municipalities. He also maintained that
the election returns and/or ballots in certain precincts were tampered with, substituted,
or systematically marked in favor of respondent Ramirez. Libanan prayed that, after due
proceedings, the HRET should issue an order to annul the election and proclamation of
Ramirez and to thereafter so proclaim petitioner as the duly elected Representative of
the Lone District of Eastern Samar. In his answer and counter-protest, with a petition for
preliminary hearing on the special and affirmative defenses, respondent Ramirez denied
the charges. He counter-protested the results of the elections in certain precincts where,
he claimed, Libanan engaged in massive vote buying, lansadera, terrorism and tearing
of the list of voters to disenfranchise voters therein listed. Accordingly, he prayed, inter
alia, for the dismissal of the protest and the confirmation of his election as the duly
elected representative of the Lone District of Eastern Samar. After some peripheral
issues were settled by the HRET, the revision of ballots in the protested precincts
commenced on 20 February 1996. The HRET noted that Libanan contested a total of
seventy-nine (79) precincts. It was noted during the revision, however, that six (6) of the
contested precincts, namely, Precincts Nos. 14, 15, 16, 18, 19 and 20 of Arteche, were
found to have been merged during the 08 May 1995 elections into three (3) precincts,
i.e., Precincts Nos. 14 and 19, Precincts Nos. 15 and 16 and Precincts Nos. 18 and 20.
Thus, only seventy-six (76) ballot boxes were actually opened for revision, one of which,
Precinct No. 4-1 of Guiuan, did not contain any ballot.

ISSUE: Is the ballots in question can be considered as spurious?

RULING: In the instant controversy, it would appear that the HRET "reviewed and
passed upon the validity of all the ballots in the protested and counter-protested
precincts, including those not contested and claimed by the parties."13 The Tribunal,
added, that "(t)his course of action was adopted not only to give effect to the intent of
each and every voter, but also to rectify any mistake in appreciation, deliberate or
otherwise, committed at the precinct level and overlooked during the revision stage of
this case."14 In holding that the absence of the signature of the Chairman of the BEI at
the back of the ballot does not invalidate it, the HRET has ratiocinated in this wise: No
spurious ballot was found in this case. For a ballot to be rejected for being spurious, the
ballot must not have any of the following authenticating marks: a) the COMELEC
watermark; b) the signatures or initial of the BEI Chairman at the back of the ballot; and
c) red and blue fibers. In the present case, all the ballots examined by the Tribunal had
COMELEC watermarks. xxx xxx xxx Anent the BEI Chairman's signature, while Section
24 of R.A. 7166 provides that failure to authenticate the ballot shall constitute an
election offense, there is nothing in the said law which provides that ballots not so
authenticated shall be considered invalid. In fact, the members of the Committee on
Suffrage and Electoral Reforms agreed during their deliberation on the subject that the
absence of the BEI Chairman's signature at the back of the ballot will not per se make a
ballot spurious. Moreover, while Rep. Palacol, then Chairman of the Committee on
Suffrage and Electoral Reforms, mentioned during his sponsorship speech that one of
the salient features of the bill filed was "to require the chairman of the Board of Election
Inspectors to authenticate a ballot given to a voter by affixing his signature on (sic) the
back thereof and to consider any ballot as spurious," R.A. 7166, as approved, does not
contain any provision to that effect. Clearly, therefore, the Congress as a whole (House
of Representatives and Senate) failed to adopt the proposal of Rep. Palacol that ballots
without the BEI Chairman's signature at the back will be declared spurious. What is
clearly provided under the said law is the sanction imposable upon an erring Chairman
of the BEI, and not the disenfranchisement of the voter.15 The pertinent provision of the
law, Section 24 of R.A. No. 7166, provides: Sec. 24. Signature of Chairman at the back
of Every Ballot. — In every case before delivering an official ballot to the voter, the
Chairman of the Board of Election Inspector shall, in the presence of the voter, affix his
signature at the back thereof. Failure to authenticate shall be noted in the minutes of the
Board of Election Inspectors and shall constitute an election offense punishable under
Section 263 and 264 of the Omnibus Election Code. There is really nothing in the above
law to the effect that a ballot which is not so authenticated shall thereby be deemed
spurious. The law merely renders the BEI Chairman accountable for such failure. The
courts may not, in the guise of interpretation, enlarge the scope of a statute and
embrace situations neither provided nor intended by the lawmakers. Where the words
and phrases of a statute are not obscure and ambiguous, the meaning and intention of
the legislature should be determined from the language employed, and where there is
no ambiguity in the words, there should be no room for construction.16 As so aptly
observed by the Solicitor-General, House Bill ("HB") No. 34811 (which later become
R.A. No. 7166), approved by the House of Representatives on third reading, was a
consolidation of different bills. Two of the bills consolidated and considered in drafting
H.B. No. 34811 were H.B. 34639 and H.B. No. 34660. Section 22 of the two latter bills
provided that: In every case before delivering an official ballot to the voter, the chairman
of the Board of Election Inspectors shall, in the presence of the voter, affix his signature
at the back thereof. Any ballot which is not so authenticated shall be deemed spurious.
Failure to so authenticate shall constitute an election offense.
2. De Guzman v. Sison, A.M. No. RTJ-01-1629, March 26, 2001

FACTS: On October 24, 1991, an Information for double murder was filed before the
Regional Trial Court (RTC) of Dagupan City, Branch 40, docketed as Crim. Case No. D-
10678, against Manolo Salcedo, Romulo Salcedo, Ricardo Samuco, Rolando Pingol
and one Joel Doe for the death of the brothers Mario and Tito Untalan on October 21,
1991. On November 8, 1991, the accused filed a petition for reinvestigation, which
respondent granted, giving the prosecution until December 23, 1991 to submit the result
of the reinvestigation. On December 21, 1991, a Saturday, the accused filed a petition
for bail, and served a copy thereof on the City Prosecutor's Office on the same day, and
set the petition for hearing on December 23, 1991 at 1:30 p.m. On December 23, 1991,
respondent granted the petition and fixed the bail bond at P40,000 for each of the
accused. On December 24, 1991, the prosecution filed an opposition to the petition for
bail on the ground that the sworn statements of several eyewitnesses, on which the
Information was based, constituted clear and strong evidence of guilt; and that the
accused should await the outcome of the reinvestigation they had requested for. On
January 7, 1992, the prosecution moved for the reconsideration of the Order of
December 23, 1991, arguing that due process requires that the prosecution must be
given an opportunity to present within a reasonable time all the evidence it may desire
to produce before the court resolves the motion for bail. Respondent denied the motion
for reconsideration on January 10, 1992. On February 17, 1992, the complainant, who
is a brother of the deceased in Crim. Case No. D-10678, filed this complaint against
respondent. On March 11, 1992, complainant, assisted by the Fourth Assistant
Prosecutor Joven M. Maramba, moved for the inhibition of respondent from the hearing
of the case because of respondent's haste in granting the petition for bail and approving
the bail bond, and the animosity that had developed between the complainant and
respondent.

ISSUE: Whether or not respondent committed gross ignorance of the law when he
granted bail to the accused in Crim. Case No. D-10678.

RULING: First, there was absence of the required three-day notice which is a violation
of Sec. 4, Rule 15 of the Rules of Court. The petition for bail was filed on December 21,
1991, a Saturday, with notice that it will be heard on Monday, December 23, 1991, at
1:30 p.m. A copy of the petition was served on the prosecution on the same day it was
filed. Clearly, there was no three-day notice to the prosecution. Second, respondent
granted bail to the accused, who were charged with a capital offense, without giving the
prosecution the opportunity to show that the evidence of guilt of the accused was
strong. The Investigating Justice stated: . . . The so-called hearing conducted by
respondent Judge was limited to a statement from counsel of [the] accused, a query
from respondent Judge to the prosecutor as to her view on the petition and the amount
of bail. There was no reception of evidence [for] the prosecution to show that the
evidence of guilt is strong. There was no inquiry into the character and reputation of the
accused, the probability of their appearing at trial, or whether or not they were fugitives
from justice. The order granting bail does not contain a summary of the evidence of the
prosecution and the court's conclusion on whether or not the evidence of guilt is strong.
Respondent contends that the prosecution never requested that it be given the
opportunity to demonstrate that the evidence of guilt against the accused is strong
although it could have done so in at least two instances. The first was when it filed an
opposition to the petition for bail, and the second was when it moved for the
reconsideration of his order granting bail. While the pleadings of the prosecution did not
specifically pray for the opportunity to prove that the evidence of guilt against [the]
accused is strong, enough appear therein which should have moved respondent Judge,
on his own, to require the prosecution to do so. In its opposition to the petition for bail,
the prosecution specifically alleged, "That the Information for Murder . . . was filed on
the strength of the sworn statement[s] of several eyewitnesses to the incident which
constitute a clear and strong evidence of guilt of all the . . . accused." In its motion for
reconsideration of the order granting bail, it alleged, "In cases where [the] grant of bail is
discretionary, due process requires that the prosecution must be given the opportunity
to present within reasonable time all the evidence it may desire to produce before the
court should resolve the motion for bail ([People] vs. Hon. Procopio Donato, G.R. No.
79269, June 5, 1991)." If these are not specific requests from the prosecution, they are,
at least, clear reminders to respondent Judge that he must give the prosecution every
opportunity to show the evidence of guilt against the accused is strong. Assuming,
however, that such a request could not be read into [the] said statements in the
prosecution's pleadings, nevertheless, respondent was duty-bound to require the
presentation of proof of the strength of the evidence of guilt against the accused
because without it he would have no basis for the exercise of his discretion on whether
or not bail should be granted. It may be pertinent to mention here that the orders of the
respondent granting bail to the accused and denying the prosecution's motion for
reconsideration thereof were nullified by the Court of appeals in CA-G.R. SP No. 28384,
19 January 1993, for having been issued with grave abuse of discretion . . . . It is
perhaps this lack of observance of the rules on the grant of bail which resulted in
accused jumping bail, thus compelling respondent to order their arrest. Up to the time
the respondent filed his memorandum on 24 February 1993, there was no report that
the accused had been apprehended. In short, complainants' worst fears were realized.
X. POSTPONEMENT OF ELECTIONS

1. Basher v. COMELEC, G.R. No. 139028, April 12, 2000

FACTS: Petitioner Hadji Rasul Batador Basher and Private Respondent Abulkair
Ampatua were both candidates for the position of Punong Barangay in Barangay
Maidan, Tugaya, Lanao del Sur during the May 12, 1997 barangay election. The
election was declared a failure and a special one was set for June 12, 1997. Again the
election failed and was reset to August 30, 1997. According to the Comelec, the voting
started only around 9:00 p.m. on August 30, 1997 because the prevailing tension in the
said locality. Election Officer Diana Datu-Imam reported that she was allegedly advised
by some religious leaders not to proceed with the election because "it might trigger
bloodshed." She also claimed the town mayor, "being too hysterical, yelled and
threatened me to declare [a] failure of election in Maidan." Subsequently, the armed
followers of the mayor pointed their guns at her military escorts, who responded in a like
manner towards the former. The parties were then pacified at the PNP headquarters.
With the arrival of additional troops, the election officer proceeded to Maidan to conduct
the election starting at 9:00 p.m. until the early morning of the following day. The holding
of the election at that particular time was allegedly announced "over the mosque." 4 The
tally sheet for the said "election" showed the following results: private respondent 250
votes; petitioner 15 votes; and Baulo Abdul Razul, a third candidate 10 votes. 5 Private
respondent was proclaimed winner. Petitioner then filed a Petition before the Comelec
praying that the election be declared a failure. Alleging that no election was conducted
in place and at the time prescribed by law, petitioner narrated that there was a dispute
that day (August 30, 1997) among the candidates regarding the venue of the election in
the lone voting precinct of the barangay. In order to avoid bloodshed, they ultimately
agreed that no election would be conducted. Accordingly, the election officer turned
over for safekeeping the ballot box containing election paraphernalia to the acting
station commander (OIC) of the Philippine National Police (PNP). The following day,
petitioner and the third candidate were surprised to learn that the election officer had
directed the Board of Election Tellers to conduct the election and to fill up the election
returns and certificates of canvass on the night of August 30, 1997 at the residence of
the former mayor. Petitioner also stated that no announcement to hold the election at
the former mayor's house that night was ever made. 6 As earlier stated, the Comelec
dismissed the Petition. Hence, this recourse to this Court. 7

ISSUE: Whether the "election" held on the date, at the time and in the place other than
those officially designated by the law and by the Comelec was valid.

RULING: Election Situs Was Illegal First, the place where the voting was conducted
was illegal. Section 42 of the Omnibus Election Code provides that "[t]he chairman of
the board of election tellers shall designate the public school or any other public building
within the barangay to be used as polling place in case the barangay has one election
precinct . . .. " Petitioner, citing an Affidavit 13 supposedly executed by the members of
the Board of Election Tellers (BET) for Barangay Maidan, alleges that the election of
officials for said barangay was held at the residence of former Mayor Alang Sagusara
Pukunun, which is located at Barangay Pandarianao, instead of the officially designated
polling precinct at Cagayan Elementaryhool. If this allegation were true, such "election"
cannot be valid, as it was not held within the barangay of the officials who were being
elected. On the other hand, it is admitted that there was a public school or building in
Barangay Maidan the Cagayan Elementary School, which was the earlier validly
designated voting center. While the BET members later repudiated their Affidavit, they
could only claim that the election was held "in Barangay Maidan." 14 They, however,
failed to specify the exact venue. In fact, to this date, even the respondents have failed
to disclose where exactly the voting was conducted. This glaring omission definitely
raises serious questions on whether the election was indeed held in a place allowed by
law. Voting Time Was Likewise Irregular Second, as to the time for voting, the law
provides that "[t]he casting of votes shall start at seven o'clock in the morning and shall
end at three o'clock in the afternoon, except when there are voters present within thirty
meters in front of the polling place who have not yet cast their votes, in which case the
voting shall continue but only to allow said voters to cast their votes without
interruption." 15 Section 22, Article IV of Comelec Resolution No. 2971 also specifies
that the voting hours shall start promptly at 7:00 a.m. and end at 3:00 p.m. of the same
day. However, the "election" for Barangay Maidan officials was supposed to have been
held after 9:00 p.m. of August 30, 1997 until the wee hours of the following day.
Certainly, such schedule was not in accordance with law or the Comelec Rules. The
Comelec erred in relying on the second sentence of Section 22, Article IV of Comelec
Resolution 2971, which states that "[i]f at three o'clock [in the afternoon], there are still
voters within thirty meters in front of the polling place who have not cast their votes, the
voting shall continue to allow said voters to cast their votes without interruption." This
sentence presupposes that the election commenced during the official time and is
simply continued beyond 3:00 p.m. in order to accommodate voters who are within thirty
meters of the polling place, already waiting for their turn to cast their votes. This is
clearly the meaning and intent of the word continue "to go on in a specified course of
action or condition." 16 The action or condition already subsists and is allowed to go on.
Otherwise, the law should have stated instead that "the voting may also start even
beyond 3:00 p.m. if there are voters within thirty meters in front of the polling place." The
strained interpretation espoused by the Comelec encourages the conduct of clandestine
"elections," for it virtually authorizes the holding of elections beyond normal hours, even
at midnight when circumstances could be more threatening and conductive to unlawful
activities. On a doctrinal basis, such nocturnal electoral practice discourages the
people's exercise of their fundamental right of suffrage, by exposing them to the
dangers concomitant to the dead of night, especially in far-lung barangays constantly
threatened with rebel and military gunfires. Election Date Was Invalid Third, the
Comelec scheduled the special election on August 30, 1997. Any suspension or
postponement of an election is governed by Section 2 of RA 6679, 17 which states that
"[w]hen for any serious cause such as rebellion, insurrection, violence, terrorism, loss or
destruction of election paraphernalia, and any analogous causes of such nature that the
holding of a free, orderly and honest election should become impossible in any
barangay, the Commission on Election motu proprio or upon sworn petition of ten (10)
registered voters of a barangay, after summary proceedings of the existence of such
grounds, shall suspend or postpone the election therein to a date reasonably close to
the date of the election that is not held or is suspended or postponed, or which resulted
in a failure to elect, but not later than thirty (30) days after the cessation of the cause for
such suspension or postponement of the election or failure to elect, and in all cases not
later than ninety (90) days from the date of the original election." Election Officer Diana
Datu-Imam of Tugaya, Lanao del Sur practically postponed the election in Barangay
Maidan from the official original schedule of 7:00 a.m. to 3:00 p.m. of August 30, 1997
to 10:00 p.m. of August 30, 1997 until the early morning of August 31, 1997. She
attempted to justify her postponement of the election by citing threats of violence and
bloodshed in the said barangay. Allegedly because of the tension created by armed
escorts of the municipal mayor and the military, Datu-Imam declared a failure of election
in order "to ease their aggression." However, as election officer, she has no authority to
declare a failure of election. Indeed, only the Comelec itself has legal authority to
exercise such awesome power. An election officer alone, or even with the agreement of
the candidates, cannot validly postpone or suspend the elections. Election
Postponement Was Invalid Fourth, Datu-Imam did not follow the procedure laid down by
law for election postponement or suspension or the declaration of a failure of election.
She narrated the circumstances surrounding her declaration as follows: 18 When I
returned to [as]certain the situation in Maidan, the Mayor, being too hysterical, yelled
and threatened me to declare [a] failure of elections in Maidan. When I insisted to
personally confirm the probable cause of bloodshed (at Maidan), his armed
followers/escorts pointed their guns to me and my escorts. Likewise my military escorts
pointed their guns to the mayor and his men "Man to Man". The Datus and religious
leaders pacified us at the PNP Headquarters.

2. Cawasa v. COMELEC, G.R. No. 150469, July 3, 2002

FACTS: Jun Rascal Cawasa and private respondent Adbulmalik M. Manamparan were
among the candidates for mayor in the Municipality of Nunungan, Lanao Del Norte. Out
of the forty (40) precincts in Nunungan, only thirty-six (36) functioned, as there was a
failure of election in the remaining four (4) precincts. Thus the proclamation was
deferred as the number of registered voters would affect the election results. A special
election was set for the remaining (4) precincts. After the special election, Cawasa was
proclaimed Mayor. Manamparan filed an appeal and petition for the annulment of the
proclamation of petitioner Cawasa and for the annulment of the special election results.
The Comelec en banc promulgated a resolution annulling the results of the special
elections of the 4 precincts and annulling the proclamation of the winning candidates.

ISSUE: Whether or not the result of the special election was valid due to the transfer of
polling places in adjacent areas.

RULING; No. The Comelec ruled that the result of the special elections in the 4
contested precincts were declared annulled, so as the proclamation of the winning
candidates, as such election was not genuinely held and resulted in failure to elect on
account of fraud. As clearly provided by the law, the location of polling places shall be
the same as that of the preceding regular election. While the proclamation of a
candidate has the effect of terminating pre-proclamation issues, a proclamation that is a
result of an illegal act is void and cannot be ratified by such proclamation and
subsequent assumption of office.

XI. FAILURE OF ELECTIONS

1. G.R. No. 142907 November 29, 2000 JOSE EMMANUEL L. CARLOS, petitioner, vs.
HON. ADORACION G. ANGELES, IN HER CAPACITY AS THE ACTING PRESIDING
JUDGE OF THE REGIONAL TRIAL COURT IN CALOOCAN CITY (BRANCH 125) and
ANTONIO M. SERAPIO, respondents.

FACTS: Petitioner Carlos and respondent Serapio were candidates for the position of
mayor of the municipality of Valenzuela, Metro Manila during May 11, 1998 elections.
The petitioner was declared as the duly elected mayor. The respondent, having the
second highest number of votes, filed with the RTC Valenzuela an election protest
challenging the results. The trial court declared that there was enough pattern of fraud
in the conduct of the election for mayor in Valenzuela. It held that the fraud was
attributable to the protestee who had control over the election paraphernalia and the
basic services in the community such as the supply of electricity. Thus, notwithstanding
the plurality of valid votes in favor of the protestee, the trial court set aside the
proclamation of protestee Carlos and declared protestant Serapio as the duly elected
mayor of Valenzuela City. With this, the petitioner filed a notice of appeal to the
Commission on Elections. He also filed a petition before the Supreme Court. The
respondent submitted that Comelec and not the Supreme Court has jurisdiction over the
petition for certiorari.

ISSUE: Whether the respondent, having the second highest number of votes, can be
declared as the duly elected mayor Whether the trial court acted without jurisdiction or
with grave abuse of discretion when it set aside the proclamation of petitioner and
declared respondent Serapio as the duly elected mayor of Valenzuela City Whether the
Supreme Court has jurisdiction to review, by petition for certiorari as a special civil
action, the decision of the RTC in an election protest case involving an elective
municipal official considering that it has no appellate jurisdiction over such decision.

RULING: An election is the embodiment of the popular will, the expression of the
sovereign power of the people. The winner is the candidate who has obtained a majority
or plurality of valid votes cast in the election. Even if the candidate receiving the majority
votes is ineligible or disqualified, the candidate receiving the next highest number of
votes or the second placer, cannot be declared elected. The wreath of victory cannot be
transferred from the disqualified winner to the repudiated loser because the law then as
now only authorizes a declaration of election in favor of the person who has obtained a
plurality of votes and does not entitle a candidate receiving the next highest number of
votes to be declared elected. In other words, a defeated candidate cannot be deemed
elected to the office. The trial court has no jurisdiction to declare a failure of election. It
is the Comelec sitting en banc that is vested with exclusive jurisdiction to declare a
failure of election. In a petition to annul an election, two conditions must be averred in
order to support a sufficient cause of action. These are: (1) the illegality must affect
more than 50% of the votes cast and (2) the good votes can be distinguished from the
bad ones. It is only when these two conditions are established that the annulment of the
election can be justified because the remaining votes do not constitute a valid
constituency. There are only three (3) instances where a failure of elections may be
declared, namely: (a) the election in any polling place has not been held on the date
fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes;
(b) the election in any polling place had been suspended before the hour fixed by law
for the closing of the voting on account of force majeure, violence, terrorism, fraud, or
other analogous causes; or (c) after the voting and during the preparation and
transmission of the election returns or in the custody or canvass thereof, such election
results in a failure to elect on account of force majeure, violence, terrorism, fraud, or
other analogous causes. Thus, the trial court in its decision actually pronounced a
failure of election by disregarding and setting aside the results of the election.
Nonetheless, as herein-above stated, the trial court erred to the extent of ousting itself
of jurisdiction because the grounds for failure of election were not significant and even
non-existent. Assuming that the trial court has jurisdiction to declare a failure of election,
the extent of that power is limited to the annulment of the election and the calling of
special elections.The result is a failure of election for that particular office. In such case,
the court can not declare a winner. A permanent vacancy is thus created. In such
eventuality, the duly elected vice-mayor shall succeed as provided by law. Both the
Supreme Court and Comelec have concurrent jurisdiction to issue writs of certiorari,
prohibition, and mandamus over decisions of trial courts of general jurisdiction (regional
trial courts) in election cases involving elective municipal officials. The Court that takes
jurisdiction first shall exercise exclusive jurisdiction over the case.

2. Batabor v. COMELEC, G.R. NO. 160428, July 21, 2004

FACTS: Hadji Rasul Batabor, the incumbent Punong Barangay, and Mocasim Abangon
Batondiang ran as opposing candidates for the position of Punong Barangay in
Barangay Maidan, Tugaya, Lanao del Sur. The result of the election shows that
Batondiang won as Punong Barangay, garnering 123 votes, as against petitioners 94
votes, or a difference of 29 votes. Batondiang was subsequently proclaimed as the duly
elected Punong Barangay. Bewailing the outcome of the election, Batabor filed with the
COMELEC a petition to declare a failure of election. The petition alleges that during the
election, the voting started at around 8:30 oclock in the morning. It was temporarily
suspended during the lunch break but after lunch, the Chairwoman of the Board of
Election Inspectors (BEI) suddenly tore all the unused official ballots. Thus, the voting
was not continued. The BEI then padlocked the ballot boxes. At that time, Batabor was
not present. Despite the note of Election Officer Taha Casidar directing the BEI to
resume the voting, the latter did not allow the remaining voters to vote. Thus, petitioners
relatives and followers, numbering more than 100, were not able to cast their votes. In
his comment, Batondiang averred that petitioners allegations are not supported by
substantial evidence. It was petitioner who padlocked the ballot boxes as shown by the
affidavit of Comini Manalastas. During the counting of votes, petitioners wife, daughter
and son actually witnessed the same. Besides, Batabor’s allegations can be properly
ventilated in an election protest because the issues raised are not grounds for
declaration of a failure of election. On October 9, 2003, the COMELEC En Banc issued
the assailed Resolution[3] denying the petition. Petitioner contends in his petition for
certiorari before the SC that the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in denying his petition. The Solicitor General,
in his comment on the instant petition, vehemently disputes petitioners allegations and
prays that the petition be dismissed for lack of merit.

ISSUE: Whether there was a failure of elections.

RULING: No. The power to declare a failure of election is vested exclusively upon the
COMELEC. Under Section 6 of the Omnibus Election Code, these two (2) conditions
must exist before a failure of election may be declared: (1) no voting has been held in
any precinct or precincts due to fraud, force majeure, violence or terrorism; and (2) the
votes not cast therein are sufficient to affect the results of the election. The cause of
such failure may arise before or after the casting of votes or on the day of the election.
While the alleged 100 votes of petitioners relatives and supporters, if cast during the
election, are sufficient to affect its result, however, he failed to prove that the voting did
not take place in precincts 3A, 4A and 5A. As found by the COMELEC, the Statement of
Votes and the Certificate of Canvass of Votes show that out of the 316 registered voters
in the questioned precincts, at least 220 actually voted. This simply shows that there
was no failure of election in the subject precincts. Moreover, petitioners allegation that
the voting was not resumed after lunch break, preventing 100 of his relatives and
followers to vote, is better ventilated in an election contest. We cannot also help but
notice that the instant petition seeks to declare a failure of elections and to annul solely
the proclamation of respondent Batondiang, the elected punong barangay. The prayer
for annulment of proclamation does not extend to all the elected and proclaimed
candidates in Barangay Maidan. The Commission may not, on the ground of failure of
elections, annul the proclamation of one candidate only, and thereafter call a special
election therefor, because failure of elections necessarily affects all the elective
positions in the place where there has been a failure of elections. To hold otherwise will
be discriminatory and violative of the equal protection of the laws. There can be failure
of election in a political unit only if the will of the majority has been defiled and cannot be
ascertained. But, if it can be determined, it must be accorded respect. After all, there is
no provision in our election laws which requires that a majority of registered voters must
cast their votes. All the law requires is that a winning candidate must be elected by a
plurality of valid votes. We reiterate our ruling in Benito vs. COMELEC that there is
failure of elections only when the will of the electorate has been muted and cannot be
ascertained. In the case at bar, this incident is not present.

3. Benito v. COMELEC, G.R. No. 134913, January 19, 2001

FACTS: Benito and private respondent Pagayawan were 2 of 8 candidates vying for the
position of municipal mayor in Calanogas, Lanao del Sur during the May 11, 1998
elections. 5 precincts clustered in the Sultan Disimban Elementary School were met
with violence when some 30 armed men appeared at the school premises and fired
shots into the air. This sowed panic among the voters and elections officials, causing
them to scatter in different directions. It happened before noon at the day of election. A
spot report reported the incident. Both parties are contending contrary facts. Petitioner
alleged that the voting never resumed even after the lawless elements left. On the other
hand, private respondent alleged that voting resumed when the armed men left around
1 pm in the afternoon. Petitioner is only asking, however, a declaration of failure of
elections on the first three precincts, not with the entire five precincts. During the
counting, the ballots from the three precincts were excluded. Nevertheless, the winner
was the private respondent. And even if the votes from the three excluded precincts
were added, private respondent still emerged as the winner.

ISSUE: Is the petitioner correct that he/she filed a petition to declare failure of election
and to call a special election. COMELEC however denied the petition and affirmed the
proclamation.

RULING: Petition Dismissed. 1. Two preconditions must exist before a failure of election
may be declared: (1) no voting has been held in any precinct due to force majeure,
violence or terrorism; and (2) the votes not cast therein are sufficient to affect the results
of the election. The cause of such failure may arise before or after the casting of votes
or on the day of the election. 2. Whether there was a resumption of voting is essentially
a question of fact. Such are not proper subjects of inquiry in a petition for certiorari
under Rule 65. 3. Voting in all five precincts resumed after peace and order was re-
established in the Disimban Elementary School. There was no objection raised to the
count of votes in the said two precincts during the counting of votes at the counting
center. So why a selective objection to the three precincts herein? 4. Petitioner equates
failure of elections to the low percentage of votes cast vis-à-vis the number of registered
voters in the subject election precincts. However, there can be a failure of election in a
political unit only if the will of the majority has been defiled and cannot be ascertained.
But if it can be determined, it must be accorded respect. After all, there is no provision in
our election laws which requires that a majority of registered voters must cast their
votes. All the law requires is that a winning candidate must be elected by a plurality of
valid votes, regardless of the actual number of ballots cast. 5. The power to throw out or
annul an election should be exercised with the utmost care and only under
circumstances which demonstrate beyond doubt either that the disregard of the law had
been so fundamental or so persistent and continuous that it is impossible to distinguish
what votes are lawful and what are unlawful, or to arrive at any certain result
whatsoever, or that the great body of voters have been prevented by violence,
intimidation and threats from exercising their franchise.
4. Sanchez v. COMELEC, G.R. No. 78461, August 12, 1987

FACTS: The Resolution of the Commission on Elections, dated May 15, 1980, in Pre-
Proclamation Case No. 41 entitled Virgilio Sanchez vs. Mayor Armando P. Biliwang and
the Municipal Board of Canvassers of San Fernando, Pampanga. In the local elections
held on January 30, 1980, Virgilio Sanchez was the official candidate of the Nacionalista
Party (NP) for Municipal Mayor of San Fernando, Pampanga, while Armando Biliwang
was the Kilusang Bagong Lipunan,s (KBL) official candidate for the same position. On
February 1, 1980, Sanchez filed with the Commission on Elections a Petition to declare
null and void the local elections in San Fernando, Pampanga due to alleged large scale
terrorism. On the same day, the COMELEC denied the Petition for lack of merit.
Sanchez moved for reconsideration. On February 8, 1980, the COMELEC recalled its
Resolution and required Biliwang and the Municipal Board of Canvassers to answer.
Hearings were conducted thereafter. On November 19, 1980, Sanchez filed a petition
for Certiorari with this court, docketed as G.R. No. 55513, wherein he seeks a
modification of the portion of the COMELEC Resolution of May 15, 1980 refusing to call
a special election. On December 6, 1980, Biliwang instituted, also with this Court, a
Petition for Certiorari, Prohibition and Mandamus, docketed as G.R. No. 55642,
assailing the same COMELEC Resolution and alleging that same body has no power to
annul an entire municipal election. These two Petitions were ordered consolidated and
were heard by the court en banc on July 28, 1981.

ISSUES: Does the COMELEC have the power to annul an entire municipal election on
the ground of post-election terrorism? Does the COMELEC have the authority to call for
a special election?

RULING: Biliwang Asserts that COMELEC lacks the power to annul elections of
municipal officials particularly so because, under Section 190 of the 1978 Election
Code, the power to try election contests relative to elective municipal officials is vested
in Courts of First Instance. Be that as it may, it should be recalled that what COMELEC
actually rejected were the sham and illegal returns in San Fernando, and that kind of
fraud and terrorism perpetrated thereat was sufficient cause for voiding the election as a
whole. Besides, COMELEC is empowered motu proprio to suspend and annul any
proclamation as, in fact, it did annul Biliwang’s proclamation. It may be true that there is
no specific provision vesting the COMELEC with authority to annul an election.
However, there is no doubt either relative to COMELEC’s extensive powers. Under the
Constitution, the COMELEC is tasked with the function to “enforce and administer all
laws relative to the conduct of elections.” The 1978 Election Code accords it exclusive
charge of the enforcement and administration of all laws relative to the conduct of
elections for the purpose of insuring free, orderly and honest elections. In other words,
in line with the plenitude of its powers and its function to protect the integrity of
elections, the COMELEC must be deemed possessed of authority to annul elections
where the will of the voters has been defeated and the purity of elections sullied. It
would be unreasonable to state that the COMELEC has a legal duty to perform and at
the same time deny it the wherewithal to fulfill that task. On this issue, the COMELEC
opined that it had no power to order the holding of new or special election. Thus, the
COMELEC deemed it imperative “to certify to the President/Prime Minister and the
Batasang Pambansa the failure of election in San Fernando, Pampanga, so that
remedial legislation may be enacted. Again, the foregoing Opinions were rendered
under the regime of the 1935 Constitution and the former Revised Election Code,
whereby there was no constitutional nor statutory precept that empowered the
COMELEC to direct a new election after one had already been held. Under Section 8 of
that former statute, authority was given to the President to postpone the election upon
the recommendation of the COMELEC. And Section 21 (c) of the same law authorized
the President to issue a proclamation calling a special election whenever the election for
a local office failed to take place on the date fixed by law. In other words, the
prerogative to postpone an election or call a special election, was formerly lodged with
the President. As the laws now stand, however, COMELEC has been explicitly vested
with the authority to “call for the holding or continuation of the election.” Clearly, under
Section 5 of Batas Pambansa Blg. 52, when the election “results in a failure to elect, the
COMELEC may call for the “holding or continuation of the election as soon as
practicable.” We construe this to include the calling of a special election in the event of a
failure to elect in order to make the COMELEC truly effective in the discharge of its
functions. In fact, Section 8 of the 1978 Election Code, supra, specifically allows the
COMELEC to call a special election for the purpose of fillinf the vacancy or a newly
created position, as the case may be. There should be no reason, therefore, for not
allowing it to call a special election when there is a failure to elect. RULING OF COURT:
WHEREFORE. 1) in G.R. No. 55513, the challenged Resolution of May 15, 1980 is
hereby modified, and the Commission on Elections hereby held empowered to call a
special election where there has been a failure to elect. That portion which certifies the
failure of election in San Fernando, Pampanga, to the President and the Batasang
Pambansa for the enactment of remedial measures, is hereby set aside. 2) In G.R. No.
55642, the Petition is hereby denied for lack of merit, and the authority of the
Commission on Elections to annul an election hereby upheld.
5. Hassan v. COMELEC, G.R. No. 124089, November 13, 1996

FACTS: Petitioner, Hadji Nor Basher L. Hassan, and private respondent, Mangondaya
P. Hassan Buatan were candidates for the Office of the Vice-Mayor while the other
private respondents were candidates for councilors in Madalum, Lanao del Sur in the
last regular local elections of May 8, 1995. However, due to threats of violence and
terrorism in the area there was failure of elections in six out of twenty-four precincts in
Madalum. The ballot boxes were burned and there were threats by unidentified persons
in Precinct No. 7-A. In Precinct Nos. 9, 9-A, 10, 13, and 14, elections did not take place
because the members of the Board of Election Inspectors (BEI) failed to report to their
respective polling places. Thus, the Monitoring Supervising Team (COMELEC Team)
headed by Regional Election Director Virgilio O. Garcillano recommended to the
COMELEC the holding of special elections in said precincts. The special elections were
thereby set on May 27, 1995. On said date, however, the members of the BEI again
failed to report for duty in their respective polling places. In an Order dated May 28,
1995, the COMELEC Team rescheduled the elections in these precincts for May 29,
1995 at Liangan Elementary (Arabic) School, which is 15 kilometers away from the
designated polling places. On May 29, 1995, the members of the Board did not again
report for duty. Hence, the COMELEC Team was constrained to appoint police/military
personnel to act as substitute members so as to push through with the elections.

ISSUE: Is the Commission on Elections correct in declaring that there is a failure of

elections?

RULING: In several cases, 5 the Court has ruled that the pre-conditions for declaring a
failure of election are: (1) that no voting has been held in any precinct or precincts
because of force majeure, violence or terrorism, and (2) that the votes not cast therein
suffice to affect the results of the elections. The concurrence of these two (2)
circumstances are required to justify the calling of a special election. Mindful of these
two (2) requirements, we rule in favor of the petitioner. The COMELEC explained that:
Jurisprudence holds that terrorism may not as a rule be invoked to declare a failure of
elections and to disenfranchise the greater number of the electorate through the
misdeeds of only a relative few. Otherwise elections will never be carried out with the
resultant disenfranchisement of the innocent voters, for the losers will always cry fraud
and terrorism. It has been ruled that annulment of election results and consequent
disenfranchisement of voters is a very stringent one. The power to annul an election
should be exercised with the greatest care and circumspection and only in extreme
cases and under circumstances which demonstrate beyond doubt and to the fullest
degree of fundamental and wanton disregard of the law. (Grand Alliance for Democracy
[GAD] vs. Comelec, 150 SCRA 665; Reyes vs. Mamba, HRET Case No. 92-022,
September 14, 1994). While we are aware of the aforesaid rule, the COMELEC can not
turn a blind eye to the fact that terrorism was so prevalent in the area, sufficient enough
to declare that no voting actually occurred on May 29, 1995 in the areas concerned. It
must be recalled that elections had to be set for the third time because no members of
the Board of Election Inspectors (BEI) reported for duty due to impending threats of
violence in the area. This then prompted COMELEC to deploy military men to act as
substitute members just so elections could be held, and to thwart these threats of
violence, the COMELEC Team, rnoreover, decided to transfer the polling places to
Liangan Elementary School which was 15 kilometers away from the polling place.
Nonetheless, voting on May 29 had to be suspended before the hour fixed by law for
the closing of the voting because of threats of violence, grenade launching and gunfires.
The Memorandum and Offer of Evidence submitted by the petitioner are quite revealing,
among which are the following: (1) EXH "A" - Memorandum of the respondent Comelec
Team, dated June 4, 1995, recommending the holding of special election in Pct 7-A,
because the ballot box with ballots were set on fire by unknown men amounting to
failure of election also; (2) EXH "B" - Certification by the Madalum Acting Election
Officer on the appointment of substitute members, who are military personnel, in the 5
precincts involved in this case, because of failure of the regular members thereof to
report for duty in the May 29, 1995 special election; (3) EXH "C" - Minutes of Voting for
Pct. 9, showing that 59 of the 418 registered voters voted; voting started at 11:40 a.m.
and ended at 2:25 p.m.; only 58 valid ballots were found inside the ballot box; and the
reported violence and terrorism, which reads: UNTOWARD INCIDENTS HAPPENED.
AT ABOUT 2:15 PM MAY 29, 1995, WHILE THE VOTING IS BEING CONDUCTED, AN
M-79 OR M203 GRENADE LAUNCHER WAS FIRED BEHIND THE WOODEN
SCHOOL BUILDING WHERE PRECINCT NO. 9, 9-A, AND 13, 14 WERE LOCATED.
THIS WAS FOLLOWED BY RAPID FIRE FROM THE UNIDENTIFIED GROUP. WE
PUT ALL THE ELECTION PARAPHERNALIA AND FORMS INSIDE THE BALLOT BOX
AND PADLOCKED THE SAME. THERE WERE ABOUT 5 GRENADE LAUNCHERS
WERE FIRED AT THE SCHOOL, THE MILITARY SECURITY EXCHANGED FIRE TO
THE GROUP. IT LASTED FOR ABOUT 30 MINUTES. WE LEFT THE SCHOOL
(LIANGAN ARABIC SCHOOL) AT ABOUT 2:45 PM AND PROCEEDED TO
MUNICIPAL HALL OF MADALUM. WE LEFT MADALUM AT 3:15 PM AND ARRIVED
AT MARAWI CITY AT ABOUT 5:00 PM (p. 4) xxx xxx xxx (8) EXH "H" — Joint Affidavit
of Hassan's watchers, dated June 11, 1995, corroborating that: 4. That at about 2:00
p.m. unidentified gunmen began indiscriminately fired their guns around the polling
place which provoked the military serving the precincts to close the ballot boxes and the
other military men guarding the polling place reacted and also fired their guns which
caused panic to the voters around; That to our evaluation at the closing of the voting at
2:00 p.m. only more or less 20 percent of the registered voters in each of the five
precincts have casted their votes;.
6. Sardea v. COMELEC, G.R. No. 106164, August 17, 1993

FACTS: On May 12, 1992, the respondent Municipal Board of Canvassers of Mauban,
Quezon, convened at the Municipal Hall and canvassed the first batch of election
returns for the just concluded May 11, 1992 elections in that municipality. At about 5:00
o'clock in the afternoon of May 13, 1992, while the canvassing of the election returns
was going on, some sympathizers of petitioner Edwin Sardea, a defeated mayoralty
candidate of LAKASNUCD, "stormed the municipal building" and "destroyed . . . all
election materials and paraphernalia including, among others, the copies of election
returns furnished to respondent Board . . ." (p. 86, Rollo). On May 14, 1992, the
respondent Municipal Board of Canvassers convened and assessed the extent of the
damage wrought by the demonstrators. It discovered that the election returns in the
possession of the MTC Judge of Mauban were intact, so it ordered the retrieval of said
election returns for use in the canvass. However, due to the absence of certain forms
needed for the canvass, the same was suspended and moved to May 17, 1992. Still, on
said date, the canvassing was not resumed because the Board had to determine first
the number of returns to be used in the canvass. The Municipal Board of Canvassers
reconvened on May 18, 1992, informed the parties that it would continue the canvassing
of the election returns based on the copies from the MTC of Mauban. Atty. Romeo
Devera, counsel of LAKAS-NUCD, objected. Later, he filed a petition in behalf of
petitioner Edwin Sardea to stop the proceedings of the Board of Canvassers on the
ground that it had no authority from the COMELEC to use the copies of the election
returns obtained from the MTC of Mauban. The Municipal Board of Canvassers
overruled Attorney Devera's objection and denied Sardea's petition to stop the
proceedings, citing the directive dated May 15, 1992 of the Provincial Election
Supervisor, Atty. Adolfo Ilagan. The directive was based on the authority given by
Acting Executive Director Resurreccion Bora of the COMELEC, "to order the Municipal
Trial Court Judge of Mauban, Quezon to make available the copy of election returns,
etc., in his possession for the use of the Municipal Board of Canvassers" (p. 86, Rollo).
As Sardea manifested that he would appeal the ruling, the Board of Canvassers
suspended the proceedings in order that he may formalize his appeal. On May 19,
1992, he filed a notice of appeal. On May 22, 1992, the COMELEC held a special
meeting and resolved "to authorize the Municipal Board of Canvassers of Mauban,
Quezon to reconvene and use the copies of the election returns of the Municipal Trial
Court Judge" (p. 87, Rollo).

ISSUE: Whether the COMELEC gravely abused its discretion in denying the petition to
declare a failure of election in Mauban, Quezon province.

RULING: In Usman vs. COMELEC (42 SCRA 667, 690), we held that the pre-conditions
for declaring a failure of election are: "(1) that no voting has been held in any precinct or
precincts because of force mejeure, violence or terrorism, and (2) that the votes not cast
therein suffice to affect the results of the elections. The language of the law clearly
requires the concurrence of the[se] two circumstances to justify the calling of a special
election." The destruction and loss of the copies of the election returns intended for the
Municipal Board of Canvassers on account of violence committed on May 13, 1992 is
not one of the causes that would warrant the declaration of a failure of election because
voting actually took place as scheduled on May 11, 1992 and other valid election
returns still existed. Moreover, the incident did not affect the result of the election. The
power to throw out or annul an election should be exercised with the utmost care and
only under circumstances which demonstrate beyond doubt either that the disregard of
the law had been so fundamental or so persistent and continuous that it is impossible to
distinguish and what votes are lawful and what are unlawful, or to arrive at any certain
result whatsoever, or that the great body of the voters have been prevented by violence,
intimidation and threats from exercising their franchise (20 C.J., pars. 179-181; Capalla
vs. Tabiana, 63 Phil. 95). The election is to be set aside when it is impossible from any
evidence within reach, to ascertain the true result - when neither from the returns nor
from other proof, nor from all together can the truth be determined (Law on Public
Officers and Election Law by Hector S. De Leon, p. 381, 1990 Ed., citing A Treatise on
the Law of Public Offices and Officers, by F. MECHEM, note 1 at p. 143). There is a
failure of elections only when the will of the electorate has been muted and cannot be
ascertained. If the will of the people is determinable, the same must as far as possible
be respected. Since in this case copies of the election returns submitted to the MTC of
Mauban, Quezon were extant, and their authenticity was not questioned, they were
properly used as basis for the canvass. This is expressly authorized by Section 233 of
the Omnibus Election Code (B.P. 881) which provides that "if said returns have been
lost or destroyed, the board of canvassers, upon prior authority of the Commission, may
use any of the authentic copies of said election returns or a certified copy of said
election returns issued by the Commission".
7. Mitmug v. COMELEC, G.R. No. 106270-73, February 10, 1994

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

ISSUE: Whether respondent COMELEC acted with grave abuse of discretion

amounting to lack of jurisdiction in denying motu proprio and without due notice and
hearing the petitions seeking to declare a failure of election in some or all of the
precincts in Lumba-Bayabao, Lanao del Sur. After all, petitioner argues, he has
meritorious grounds in support thereto, viz., the massive disenfranchisement of voters
due to alleged terrorism and unlawful clustering of precincts, which COMELEC should
have at least heard before rendering its judgment.

RULING: Incidentally, a petition to annul an election is not a pre-proclamation

controversy. Consequently, the proclamation of a winning candidate together with his
subsequent assumption of office is not an impediment to the prosecution of the case to
its logical conclusion.17 Under the COMELEC Rules of Procedure, within twenty-four
(24) hours from the filing of a verified petition to declare a failure to elect, notices to all
interested parties indicating therein the date of hearing should be served through the
fastest means available. 18 The hearing of the case will also be summary in nature.19
Based on the foregoing, the clear intent of the law is that a petition of this nature must
be acted upon with dispatch only after hearing thereon shall have been conducted.
Since COMELEC denied the other petitions 20 which sought to include forty-three (43)
more precincts in a special election without conducting any hearing, it would appear
then that there indeed might have been grave abuse of discretion in denying the
petitions. However, a closer examination of the COMELEC Rules of Procedure,
particularly Sec. 2, Rule 26, thereof which was lifted from Sec. 6, B.P. 881, otherwise
known as the Omnibus Election Code of the Philippines, indicates otherwise. It reads —
Sec. 2. Failure of election. — If, on account of force majeure, violence, terrorism, fraud
or other analogous causes the election in any precinct has not been held on the date
fixed, or had been suspended before the hour fixed by law for the closing of the voting,
or after the voting and during the preparation and the transmission of the election
returns or in the custody of canvass thereof, such election results in a failure to elect,
and in any of such cases the failure or suspension of election would affect the result of
the election, the Commission shall, on the basis of a verified petition by any interested
party and after due notice and hearing, call for the holding or continuation of the election
not held, suspended or which resulted in a failure to elect on a date reasonably close to
the date of the election not held, suspended or which resulted in a failure to elect but not
later than thirty (30) days after the cessation of the cause of such postponement or
suspension of the election or failure to elect. Before COMELEC can act on a verified
petition seeking to declare a failure of election, two (2) conditions must concur: first, no
voting has taken place in the precinct or precincts on the date fixed by law or, even if
there was voting, the election nevertheless results in failure to elect; and, second, the
votes not cast would affect the result of the election. 21 In the case before us, it is
indubitable that the votes not cast will definitely affect the outcome of the election. But,
the first requisite is missing, i.e., that no actual voting took place, or even if there is, the
results thereon will be tantamount to a failure to elect. Since actual voting and election
by the registered voters in the questioned precincts have taken place, the results
thereof cannot be disregarded and excluded. 22 COMELEC therefore did not commit
any abuse of discretion, much less grave, in denying the petitions outright. There was
no basis for the petitions since the facts alleged therein did not constitute sufficient
grounds to warrant the relief sought. For, the language of the law expressly requires the
concurrence of these conditions to justify the calling of a special election. 23 Indeed, the
fact that a verified petition is filed does not automatically mean that a hearing on the
case will be held before COMELEC will act on it. The verified petition must still show on
its face that the conditions to declare a failure to elect are present. In the absence
thereof, the petition must be denied outright.
8. Tan v. COMELEC, G.R. Nos. 166143-47, November 20, 2006

FACTS: Petitioners Abdusakur M. Tan and Basaron Burahan were the gubernatorial
and vicegubernatorial candidates, respectively, of Sulu Province in the May 10, 2004
national and local elections. On May 17, 2004, petitioners, together with other local
candidates for congressman, mayor, and vicemayor, filed with the COMELEC four (4)
Petitions for Declaration of Failure of Elections in the towns of Maimbung, Luuk, Tongkil,
and Panamao, all of Sulu Province, docketed as SPA Nos. 04-336,8 04- 337,9 04-
339,10 and 04-340, respectively. For the municipality of Luuk, Sulu, another Petition for
Declaration of Failure of Elections was filed by another gubernatorial candidate, Yusop
Jikiri, and it was docketed as SPA No. 04-334. Petitioners Tan and Burahan alleged
systematic fraud, terrorism, illegal schemes, and machinations allegedly perpetrated by
private respondents and their supporters resulting in massive disenfranchisement of
voters. Petitioners submitted various affidavits and photographs to substantiate their
allegations:13 In SPA No. 04-336 (Maimbung, Sulu), petitioners submitted the affidavits
of poll watchers Ramil P. Singson, Otal Ibba, Sahak P. Ibrahim, Randy J. Jurri, Hayudini
S. Jamuri, and municipal councilor candidate Jumdani Jumlail. In SPA No. 04-337
(Luuk, Sulu), petitioners submitted the affidavits of poll watchers Nijam Daud, Arsidan
Abdurahman, Bensali Kamlian, Gamar Basala, Najir Ahamad, Apal A. Emamil, Say
Abdurasi, Faizal Husbani, Sikal Lastam, Muktar Ailadja, Rujer Abdulkadil, Jurmin
Suraid, Bakkar Jamil, Musid Madong, Nasib Nurin, Jul-Islam Benhar, Basiri Hamsah,
and registered voters Sahaya Muksan, Juratol Asibon, Nuluddin Malihul, Tantung
Tarani, Jul Ambri Abbil, and Harahun Arola.15 In SPA No. 04-339 (Tongkil, Sulu),
petitioners submitted the affidavits of poll watchers Talib Usama, Lingbird Sabtal, Yusop
Mirih, Kasim Akol, Ammad Madon, Dayting Imamil, Nonoy T. Kiddang, Nilson Bakil, Boy
Sabtal, Reagan Bensali, Alguiser Abdulla, Gaming Talib, Munir Ukkang, Abdurahim
Sairil, Alcafon Talib, Rosefier Talib, Julbasil Sabtal, Darwin Lalik, Merinisa T. Abdurasid,
Lim Tingkahan, and Mujina G. Talib,16 over-all coordinators of Tongkil mayoralty
candidate Olum Sirail. Affiant poll watcher Merinisa T. Abdurasid attested to taking
seven (7) photographs17 allegedly showing electoral irregularities. In SPA No. 04-340
(Panamao, Sulu), petitioners submitted the affidavits of poll watchers Amina D. Undug,
Dinwaza Undug, Sitti Aiza Undug, Amina Undug, Indah Taas Undug, Fadzrama
Aukasa, Moreno Adjani, Nurhaida S. Undug, Nurjaina S. Abubakar, and Altimir A.
Julhani.18 Affiant poll watcher Altimir A. Julhani attested to taking five (5)
photographs19 allegedly showing electoral irregularities. Petitioners submitted
additional affidavits and photographs, particularly the affidavits of Maimbung, Sulu poll
watchers Aminkadra Abubakar, Abdulla Abubakar, Mhar Sappari, Nasirin Al-Najib,
Marvin Saraji, Naufal Abubakar, Rhino Gumbahali, Basik Abton, Abzara H. Mudahi,
Ayatulla Jakaria, Uttal Iba, Sin-sin Buklasan, Mardison I. Bakili, Abdurasmin
Abdurahman, Binnar Pitong, Mahrif Sumlahani, Albinar S. Asaad, including that of
photojournalist Alfred Jacinto-Corral20 who attested taking nine (9) photographs
showing election irregularities. Likewise, a report was submitted by Philippine Army 1Lt.
Arthur V. Gelotin, Commanding Officer of Alpha Company, 563rd Infantry (Matapat) BN
11D, Tanduh Patong, Maimbung, Sulu, which allegedly showed massive failure of
voters to cast their ballots.22 Meanwhile, the COMELEC Second Division, acting on the
Petitions for Declaration of Failure of Elections, issued its May 17, 2004 Order
suspending the proclamation of the winning gubernatorial candidate of Sulu,23 but lifted
the suspension three (3) days later. In the May 20, 2004 lifting Order, the COMELEC
Second Division directed the Sulu PBOC to complete the canvass of votes and "to bring
all canvass documents to Manila, and to proclaim the winning candidates for Governor
in Manila.

ISSUES: Whether [or not] the respondent COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction, in dismissing the consolidated
petitions despite the evident massive disenfranchisement of the voters. Whether [or not]
the proclamation of the respondents, albeit patently null and void, bars the filing of the
instant petitions for declaration of failure of elections.

RULING: The petitions are bereft of merit. Decision complete with the required majority
opinion The Court rules that a resolution or decision of the COMELEC is considered
complete and validly rendered or issued when there is concurrence by the required
majority of the Commissioners. There is nothing from the above constitutional proviso
nor in the COMELEC Rules of Procedure that requires the submission of a dissenting
opinion before a decision or resolution concurred by the required majority is validly
rendered, i.e. complete. Put otherwise, with the required majority vote, the majority
opinion embodied in a decision or resolution duly promulgated is validly rendered and
issued despite dissent or inhibition of the minority, and even if the reason for the dissent
or inhibition is submitted much later than its promulgation. In sum, the 30-day
reglementary period must be reckoned from the receipt of the decision, order or
resolution and not from the receipt of a dissenting opinion issued later. In the instant
case, the dissenting opinion was submitted and promulgated 36 days after the assailed
joint resolution. The 30-day reglementary period starts to run only upon the receipt by
the parties of the reserved extended opinion released within 15 days from the
promulgation of the resolution or decision. While we are sympathetic to the predicament
of petitioners, we however declare that Sections 3 and 4 of Rule 18, COMELEC Rules
of Procedure are unconstitutional and must perforce be struck down. The 1987
Constitution, under Article IX-A, Section 6 and Article IX-C, Section 3, grants and
authorizes the COMELEC to promulgate its own rules of procedures as long as such
rules concerning pleadings and practice do not diminish, increase or modify substantive
rights; on the other hand, this Court has a rule-making power provided in Article VIII,
Section 5, paragraph (5) "the constitutional prerogative and authority to strike down and
disapprove rules of procedure of special courts and quasijudicial bodies. The above
quoted constitutional proviso clearly posits the unequivocal scenario that a decision,
order, or ruling is issued complete with separate opinions duly incorporated upon its
promulgation. It does not envision what Sections 3 and 4 of Rule 18 provide an
unwarranted extension of the period to file an appeal on certiorari. Foregoing
considered, the instant petition was clearly filed out of time. Having received the joint
resolution on October 21, 2004 petitioners had until November 20, 2004, the last day of
the 30-day reglementary period, within which to file the petition for certiorari. For filing
the instant petition only on December 13, 2004 or 23 days beyond the 30-day
reglementary period, the instant petition must be dismissed for being filed out of time.
The records of the case from the COMELEC show that petitioners did not raise the
alleged abrupt change of polling place as an issue. The aforementioned issue is now
raised only for the first time on appeal before this Court. Settled is the rule that issues
not raised in the proceedings below (COMELEC en banc) cannot be raised for the first
time on appeal. Fairness and due process dictate that evidence and issues not
presented below cannot be taken up for the first time on appeal thus, in Matugas v.
Commission on Elections, we reiterated this rule, saying: The rule in appellate
procedure is that a factual question may not be raised for the first time on appeal, and
documents forming no part of the proofs before the appellate court will not be
considered in disposing of the issues of an action. This is true whether the decision
elevated for review originated from a regular court or an administrative agency or quasi-
judicial body, and whether it was rendered in a civil case, a special proceeding, or a
criminal case. Piecemeal presentation of evidence is simply not in accord with orderly
justice. Even granting arguendo that the issue of the alleged change and transfer of
polling places was raised before the COMELEC, it would still not justify a declaration of
failure of election in the subject municipalities. The records sufficiently shed light on this
issue and dispel any doubt as to the failure of election as alleged. It is apparent that the
May 9, 2004 approval of the change and transfer of polling places which was duly
disseminated to the parties, candidates, and voters was a mere formality to confirm
what was already set way before the May 10, 2004 elections. The April 13, 2004
COMELEC Resolution No. 6695 granted authority to the Commissioners-in Charge of
regions to decide on all administrative matters not covered by specific resolutions or
policies. Consequently, the concerned political parties, candidates, and registered
voters of Sulu Province had sufficient time to be informed about the location of the
polling places and the clustering of precincts before the May 10, 2004 elections.
Pursuant to COMELEC Resolution No. 6695 of April 13, 2004, Commissioner Barcelona
submitted for confirmation to the COMELEC en banc his memorandum[64] on the
approval of clustering of precincts in Sulu Province. Consequently, COMELEC
Resolution No. 6932 was issued on May 9, 2004 confirming Commissioner Barcelona's
prior approval of the clustering of precincts. Contrary to Commissioner Sadain's
Dissenting Opinion and what petitioners want us to believe, there was no lack of ample
notice to petitioners, their poll watchers and supporters, and the voters of the subject
municipalities in Sulu Province about the clustering of precincts and the transfer of
polling centers before the May 10, 2004 elections. As a matter of fact, petitioners had
their poll watchers in place, particularly those who executed affidavits on the alleged
irregularities. This explains why petitioners avoided raising this issue in their Petitions
for Declaration of Failure of Election before the COMELEC en banc. Thus, petitioners
cannot rely on this argument for support. Significantly, Commissioner Sadain approved
and signed COMELEC Resolution Nos. 6695 and 6932. No failure of election. The
COMELEC correctly dismissed the Petitions for Declaration of Failure of Election since
the electoral anomalies alleged in the petitions should have been raised in an election
protest, not in a petition to declare a failure of election. Under Republic Act No. 7166,
otherwise known as "The Synchronized Elections Law of 1991," the COMELEC en banc
is empowered to declare a failure of election under Section 6 of the Omnibus Election
Code. Section 6 of the Code prescribes the conditions for the exercise of this power
From the above-cited proviso, three (3) instances justify the declaration of failure of
election, to wit: (a) the election in any polling place has not been held on the date fixed
on account of force majeure, violence, terrorism, fraud, or other analogous causes; (b)
the election in any polling place had been suspended before the hour fixed by law for
the closing of the voting on account of force majeure, violence, terrorism, fraud, or other
analogous causes; or (c) after the voting and during the preparation and transmission of
the election returns or in the custody or canvass thereof, such election results in a
failure to elect on account of force majeure, violence, terrorism, fraud, or other
analogous causes.
9. Mutilan v. COMELEC, G.R. NO. 171248, April 2, 2007

FACTS: Dr. Mahid M. Mutilan (petitioner) and Zaldy Uy Ampatuan (private respondent)
were candidates for Governor during the election of regional officials held on 8 August
2005 in the Autonomous Region of Muslim Mindanao (ARMM). On 11 August 2005,
private respondent was proclaimed as the duly elected Governor of the ARMM. On 19
August 2005, petitioner filed an Electoral Protest and/or Petition to Annul the Elections.
The case was docketed as EPC No. 2005-3. Petitioner contested the results of the
elections in Maguindanao, Basilan, Tawi-Tawi, and Sulu on the ground that no actual
election was conducted in the precincts in these four provinces. Petitioner alleged that
the voters did not actually vote and that the ballots were filled up by non-registered
voters in the four provinces. Petitioner also contested the results in the municipalities of
Butig, Sultan Gumander, Calanogas, Tagoloan, Kapai, Masiu, and Maguing in Lanao
del Sur where massive substitute voting allegedly took place.

ISSUES: 1. Whether the COMELEC Second Division acted in excess of its jurisdiction
and with grave abuse of discretion amounting to lack or excess of jurisdiction in
dismissing the petition to annul elections and in not elevating the petition to the
COMELEC En Banc. 2. Whether the COMELEC En Banc acted in excess of its
jurisdiction and with grave abuse of discretion amounting to lack or excess of jurisdiction
in denying petitioner's motion for reconsideration for lack of verification.

RULING: The COMELEC Second Division is Not Prohibited from Elevating the Petition
to the COMELEC En Banc Petitioner alleges that the COMELEC Second Division
gravely abused its discretion in dismissing the petition for annulment of elections. Citing
Section 3, Article IX-C of the 1987 Constitution, petitioner alleges that "public
respondent en banc or in division possesses the jurisdiction conferred by the
Constitution in the entire public respondent as one whole collegial body or unit and such
jurisdiction continues to exist when the public respondent sits either en banc or in a
division."As such, the COMELEC Second Division has the "jurisdiction and authority to
take action on the petition x x x [and] to legally elevate the petition to public respondent
sitting en banc."9 Section 3, Article IX-C of the 1987 Constitution provides: The
Commission on Elections may sit en banc or in two divisions, and shall promulgate its
rules of procedure in order to expedite disposition of election cases, including pre-
proclamation controversies. All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall be decided by the
Commission en banc. Under Section 3, Article IX-C of the 1987 Constitution, all election
cases, including pre-proclamation controversies, must be heard and decided by a
division of the COMELEC. In his Electoral Protest and/or Petition to Annul the Elections,
petitioner seeks for a declaration of failure of elections in the contested areas.
Petitioner's counsel readily admitted during the initial hearing that the petition was for
annulment of elections. Under Section 4 of Republic Act No. 7166 (RA 7166),
jurisdiction over postponements, failure of elections and special elections vests in the
COMELEC En Banc. The jurisdiction of the COMELEC En Banc over a petition to
declare a failure of elections has been affirmed by this Court which ruled that a petition
to declare a failure of elections is neither a pre-proclamation controversy nor an election
case. A prayer to annul election results and a prayer to declare failure of elections
based on allegations of fraud, terrorism, violence or analogous causes are actually of
the same nature and are denominated similarly in the Omnibus Election Code. Thus,
the COMELEC Second Division has no jurisdiction over the petition to annul the
elections. Petitioner alleges that the docketing of the case as an election protest case
was based on the determination of the administrative docket staff. Petitioner argues that
the internal docketing should not prejudice his rights and should not divest the
COMELEC, sitting either En Banc or in Division, of its jurisdiction over the petition. The
argument has no merit. Petitioner filed an Electoral Protest and/or Petition to Annul the
Elections. Petitioner cannot put the blame on the docketing clerk because he clearly
tried to avail of two different remedies, each one falling under separate jurisdictions. The
COMELEC Second Division ruled that automatic elevation of the case to the En Banc is
not sanctioned by the rules or by jurisprudence. Petitioner argues that the COMELEC
Second Division should have elevated the petition to the COMELEC En Banc instead of
dismissing the petition for lack of jurisdiction. Section 3, Rule 19 of the COMELEC
Rules of Procedure requires that the motion for reconsideration be verified.23 The
COMELEC En Banc ruled that there was no valid motion for reconsideration because
petitioner failed to comply with Section 3, Rule 19 of the COMELEC Rules of Procedure.
The COMELEC En Banc ruled that the Order of the COMELEC Second Division had
become final and executory. Petitioner alleges that the absence of verification in his
motion for reconsideration constitutes a slight or minor lapse and defect. Petitioner
further alleges that the absence of verification is merely a formal defect and does not
affect the validity and efficacy of the pleading. Petitioner alleges that the motion for
reconsideration was filed within five days from receipt of the COMELEC Second
Division's Decision in accordance with Section 2, Rule 19 of the COMELEC Rules of
Procedure. Petitioner alleges that the motion for reconsideration was not verified
because he was then in Marawi City. Petitioner's verification did not arrive in Manila until
after the filing of the motion for reconsideration. Petitioner alleges that upon the arrival
of the verification in Manila, his counsel filed a Motion to Admit Verified Copies of
Motion for Reconsideration and explained the reason for the delayed submission of
petitioner's verification.
XII. SPECIAL ELECTIONS

1. Tolentino v. COMELEC, G.R. No. 148334, January 21, 2004

FACTS: Shortly after her succession to the Presidency in January 2001, President
Gloria MacapagalArroyo nominated then Senator Teofisto T. Guingona, Jr. ("Senator
Guingona") as Vice-President. Congress confirmed the nomination of Senator Guingona
who took his oath as Vice-President on 9 February 2001. Following Senator Guingona’s
confirmation, the Senate on 8 February 2001 passed Resolution No. 84 ("Resolution
No. 84") certifying to the existence of a vacancy in the Senate. Resolution No. 84 called
on COMELEC to fill the vacancy through a special election to be held simultaneously
with the regular elections on 14 May 2001. Twelve Senators, with a 6-year term each,
were due to be elected in that election.1Resolution No. 84 further provided that the
"Senatorial candidate garnering the 13th highest number of votes shall serve only for
the unexpired term of former Senator Teofisto T. Guingona, Jr.," which ends on 30 June
2004.2 On 5 June 2001, after COMELEC had canvassed the election results from all
the provinces but one (Lanao del Norte), COMELEC issued Resolution No. 01-005
provisionally proclaiming 13 candidates as the elected Senators. Resolution No. 01-005
also provided that "the first twelve (12) Senators shall serve for a term of six (6) years
and the thirteenth (13th) Senator shall serve the unexpired term of three (3) years of
Senator Teofisto T. Guingona, Jr. who was appointed Vice-President."3Respondents
Ralph Recto ("Recto") and Gregorio Honasan ("Honasan") ranked 12th and 13th,
respectively, in Resolution No. 01- 005. On 20 June 2001, petitioners Arturo Tolentino
and Arturo Mojica ("petitioners"), as voters and taxpayers, filed the instant petition for
prohibition, impleading only COMELEC as respondent. Petitioners sought to enjoin
COMELEC from proclaiming with finality the candidate for Senator receiving the 13th
highest number of votes as the winner in the special election for a single three-year
term seat. Accordingly, petitioners prayed for the nullification of Resolution No. 01-005
in so far as it makes a proclamation to such effect. Petitioners contend that COMELEC
issued Resolution No. 01-005 without jurisdiction because: (1) it failed to notify the
electorate of the position to be filled in the special election as required under Section 2
of Republic Act No. 6645 ("R.A. No. 6645");4 (2) it failed to require senatorial
candidates to indicate in their certificates of candidacy whether they seek election under
the special or regular elections as allegedly required under Section 73 of Batas
Pambansa Blg. 881;5 and, consequently, (3) it failed to specify in the Voters Information
Sheet the candidates seeking election under the special or regular senatorial elections
as purportedly required under Section 4, paragraph 4 of Republic Act No. 6646 ("R.A.
No. 6646").6 Petitioners add that because of these omissions, COMELEC canvassed all
the votes cast for the senatorial candidates in the 14 May 2001 elections without
distinction such that "there were no two separate Senate elections held simultaneously
but just a single election for thirteen seats, irrespective of term."7
ISSUE: Whether a special election to fill a vacant three-year term Senate seat was
validly held on 14 May 2001.

RULING: Under Section 9, Article VI of the Constitution, a special election may be

called to fill any vacancy in the Senate and the House of Representatives "in the
manner prescribed by law," thus: In case of vacancy in the Senate or in the House of
Representatives, a special election may be called to fill such vacancy in the manner
prescribed by law, but the Senator or Member of the House of Representatives thus
elected shall serve only for the unexpired term. (Emphasis supplied) To implement this
provision of the Constitution, Congress passed R.A. No. 6645, which provides in
pertinent parts: SECTION 1. In case a vacancy arises in the Senate at least eighteen
(18) months or in the House of Representatives at least one (1) year before the next
regular election for Members of Congress, the Commission on Elections, upon receipt
of a resolution of the Senate or the House of Representatives, as the case may be,
certifying to the existence of such vacancy and calling for a special election, shall hold a
special election to fill such vacancy. If Congress is in recess, an official communication
on the existence of the vacancy and call for a special election by the President of the
Senate or by the Speaker of the House of Representatives, as the case may be, shall
be sufficient for such purpose. The Senator or Member of the House of Representatives
thus elected shall serve only for the unexpired term. SECTION 2. The Commission on
Elections shall fix the date of the special election, which shall not be earlier than forty-
five (45) days nor later than ninety (90) days from the date of such resolution or
communication, stating among other things the office or offices to be voted for:
Provided, however, That if within the said period a general election is scheduled to be
held, the special election shall be held simultaneously with such general election.
(Emphasis supplied) Section 4 of Republic Act No. 7166 subsequently amended
Section 2 of R.A. No. 6645, as follows: Postponement, Failure of Election and Special
Elections. – x x x In case a permanent vacancy shall occur in the Senate or House of
Representatives at least one (1) year before the expiration of the term, the Commission
shall call and hold a special election to fill the vacancy not earlier than sixty (60) days
nor longer than ninety (90) days after the occurrence of the vacancy. However, in case
of such vacancy in the Senate, the special election shall be held simultaneously with the
next succeeding regular election. (Emphasis supplied) Thus, in case a vacancy arises in
Congress at least one year before the expiration of the term, Section 2 of R.A. No.
6645, as amended, requires COMELEC: (1) to call a special election by fixing the date
of the special election, which shall not be earlier than sixty (60) days nor later than
ninety (90) after the occurrence of the vacancy but in case of a vacancy in the Senate,
the special election shall be held simultaneously with the next succeeding regular
election; and (2) to give notice to the voters of, among other things, the office or offices
to be voted for. Did COMELEC, in conducting the special senatorial election
simultaneously with the 14 May 2001 regular elections, comply with the requirements in
Section 2 of R.A. No. 6645? A survey of COMELEC’s resolutions relating to the conduct
of the 14 May 2001 elections reveals that they contain nothing which would amount to a
compliance, either strict or substantial, with the requirements in Section 2 of R.A. No.
6645, as amended. Thus, nowhere in its resolutions24 or even in its press releases25
did COMELEC state that it would hold a special election for a single three-year term
Senate seat simultaneously with the regular elections on 14 May 2001. Nor did
COMELEC give formal notice that it would proclaim as winner the senatorial candidate
receiving the 13th highest number of votes in the special election. The controversy thus
turns on whether COMELEC’s failure, assuming it did fail, to comply with the
requirements in Section 2 of R.A. No. 6645, as amended, invalidated the conduct of the
special senatorial election on 14 May 2001 and accordingly rendered Honasan’s
proclamation as the winner in that special election void. More precisely, the question is
whether the special election is invalid for lack of a "call" for such election and for lack of
notice as to the office to be filled and the manner by which the winner in the special
election is to be determined. For reasons stated below, the Court answers in the
negative.
XIII. COUNTING OF VOTES

1. Loong v. COMELEC, G.R. No. 133676, April 14, 1999

FACTS : On 15 January 1990, petitioner filed with the respondent Commission his
certificate of candidacy for the position of Vice-Governor of the Mindanao Autonomous
Region in the election held on 17 February 1990 (15 January 1990 being the last day for
filing said certificate); herein two (2) private respondents (Ututalum and Edris) were also
candidates for the same position. On 5 March 1990 (or 16 days after the election),
respondent Ututalum filed before the respondent Commission (Second Division) a
petition (docketed as SPA Case No. 90-006) seeking to disqualify petitioner for the
office of Regional Vice-Governor, on the ground that the latter made a false
representation in his certificate of candidacy as to his age. On 15 May 1990, the
respondent Commission (Second Division) rendered the now assailed Resolution 3
(with two (2) Commissioners — Yorac and Flores concurring, and one Commissioner —
Dimaampao dissenting), holding that: WHEREFORE, on the basis of the foregoing, the
Commission on Elections (Second Division) holds that it has jurisdiction to try the
instant petition and the respondent's motion to dismiss on the ground of lack of
jurisdiction is hereby denied. Denying petitioner's motion for reconsideration of the
above-cited resolution, the respondent Commission issued Resolution dated 3 July
1990, 7 stating among others that — While the Frivaldo case referred to the questioned
of respondent's citizenship, we hold that the principle applies to discovery of violation of
requirements for eligibility, such as for instance the fact that a candidate is a holder of a
green card or other certificates of permanent residence in another country, or, as in this
case, that the candidate does not possess the age qualification for the office. On 3 July
1990, petitioner was proclaimed as the duly elected Vice-Governor of the Mindanao
Autonomous Region. 8 Hence, this special civil action of certiorari filed by petitioner on
9 July 1990 to annul the aforesaid resolutions of respondent Commission dated 15 May
1990 and 3 July 1990, issued in SPA No. 90-006.

ISSUE : SPA No. 90-006 (a petition to cancel the certificate of candidacy of petitioner
Loong) was filed within the period prescribed by law.

RULING : The undisputed facts are as follows: petitioner Loong filed his certificate of
candidacy on 15 January 1990 (The last day for filing the same), the election for officials
of the Muslim Mindanao Autonomous Region being on 17 February 1990; but private
respondent Ututalum filed the petition (SPA 90-006) to disqualify candidate Loong only
on 5 March 1990, or forty-nine (49) days from the date Loong's certificate of candidacy
was filed (i.e. 15 January 1990), and sixteen (16) days after the election itself. Sections
3 and 4 of Rep. Act No. 6734 (entitled, "An Act Providing for an Organic Act for the
Autonomous Region in Muslim Mindanao") requires that the age of a person running for
the office of Vice Governor for the autonomous region shall be at least thirty-five (35)
years on the day of the election Section 74 of the Omnibus Election Code ("Code" for
brevity) provides that the certificate of candidacy of the person filing it shall state,
among others, the date of birth of said person. Section 78 of the same Code states that
is case a person filing a certificate of candidacy has committed false representation, a
petition to cancel the certificate of the aforesaid person may be filed within twenty-five
(25) days from the time the certificate was filed. Clearly, SPA No. 90-006 was filed
beyond the 25-day period prescribed by Section 78 of the Omnibus Election Code. We
do not agree with private respondent Ututalum's contention that the petition for
disqualification, as in the case at bar, may be filed at any time after the last day for filing
a certificate of candidacy but not later than the date of proclamation, applying Section 3,
Rule 25 of the Comelec Rules of Procedures. The petition filed by private respondent
Ututalum with the respondent Comelec to disqualify petitioner Loong on the ground that
the latter made a false representation in his certificate of candidacy as to his age,
clearly does not fall under the grounds of disqualification as provided for in Rule 25 but
is expressly covered by Rule 23 of the Comelec Rules of Procedure governing petitions
to cancel certificate of candidacy. Moreover, Section 3, Rule 25 which allows the filing of
the petition at nay time after the last day for the filing of certificates of candidacy but not
later than the date of proclamation, is merely a procedural rule issued by respondent
Commission which, although a constitutional body, has no legislative powers. Thus, it
can not supersede Section 78 of the Omnibus Election Code which is a legislative
enactment. We note that Section 6 refers only to the effects of a disqualification case
which may be based on grounds other than that provided under Section 78 of the Code.
But Section 7 of Rep. Act No. 6646 also makes the effects referred to in Section 6
applicable to disqualification cases filed under Section 78 of the Code. Nowhere in
Section 6 and 7 Rep. Act. No 6646 is mentioned made of the period within which these
disqualification cases may be filed. This is because there are provisions in the Code
which supply the periods within which a petition relating to disqualification of candidates
must be filed, such as Section 78, already discussed, and Section 253 on petitions for
quo warranto. Thus, if a person qualified to file a petition to disqualification a certain
candidate fails to file the petition within the 25-day period prescribed by Section 78 of
the Code for whatever reasons, the election laws do not leave him completely helpless
as he has another chance to raise the disqualification of the candidate by filing a petition
for quo warranto within ten (10) days from the proclamation of the results of the election,
as provided under Section 253 of the Code. Section 1 Rule 21 of the Comelec Rules of
procedure similarly provides that any voter contesting the election of any regional,
provincial or city official on the ground of ineligibility or of disloyalty to the Republic of
the Philippines may file a petition for quo warranto with the Electoral Contest
Adjudication Department. The petition may be filed within ten (10)days from the date the
respondent is proclaimed (Section 2). In sum, SPA No. 90-006 was filed by private
respondent Ututalum beyond the 25-day period (from the filing by petitioner Loong of
the questioned certificate of candidacy) prescribed by Section 78 of the Code. It follows
that the dismissal of said petition for disqualification is warranted. Further it would
appear that we can not treat SPA NO. 90-006 as a petition for quo warranto (Section
253 of the Code) for when it was filed with the respondent Commission, no proclamation
of election results had as yet been made, it was premature.
2. Dojillo v. COMELEC, G.R. No. 166542, July 25, 2006

FACTS: Petitioner and respondent were two of three candidates for Punong Barangay
of Nibaliw Vidal, San Fabian, Pangasinan in the 15 July 2002 synchronized elections for
the Barangay and the Sangguniang Kabataan. Respondent obtained 374 votes while
petitioner received 371 votes. The BET declared respondent as the elected Punong
Barangay by a plurality of three votes. Petitioner filed an election protest before the trial
court on 19 July 2002. Docketed as Election Protest No. 012 (SF-02), petitioner
questioned the election results in Precinct Nos. 84-A, 86-A1, and 87-A1 on grounds of
misappreciation of ballots and incorrect tallying of votes. On 24 July 2002, respondent
filed his answer with counter-protest on grounds of misappreciation of ballots, padding
of votes, and presence of flying voters. On 3 August 2002, the trial court issued an order
dismissing the counter-protest due to respondent's failure to pay the required filing fee
within the period of filing his answer. Respondent promptly filed a notice of appeal.
However, the Regional Trial Court denied respondent's appeal for lack of jurisdiction,
apart from the order being merely interlocutory. In his election protest, petitioner
objected to 26 ballots as marked ballots for respondent and claimed two ballots as
votes. For his part, respondent objected to 36 ballots as marked ballots for petitioner
and claimed five ballots as votes.

ISSUE: Are the COMELEC's Resolutions are not supported by substantial evidence and
are contrary to law and settled jurisprudence, COMELEC committed grave abuse of
discretion amounting to lack of or excess of jurisdiction.

RULING: Appreciation of Ballots A ballot indicates the voter's will. There is no

requirement that the entries in the ballot be written nicely or that the name of the
candidate be spelled accurately. In the reading and appreciation of ballots, every ballot
is presumed valid unless there is a clear reason to justify its rejection. The object in the
appreciation of ballots is to ascertain and carry into effect the intention of the voter, if it
can be determined with reasonable certainty.[18] Petitioner separates his question on
appreciation of ballots into two. First is the appreciation of ballots which petitioner
previously objected to as marked ballots and which the COMELEC should not have
counted in favor of respondent. Second is the appreciation of ballots which are stray
votes and which the COMELEC should not have counted in favor of respondent.
Petitioner appeals the COMELEC's ruling on the following ballots for being marked
ballots: Exhibits "1- J", "A-5", "B-1", "B-2", "3-8", "C", "C-1", "C-3" to "C-5." We relied on
the descriptions of the ballots given by the parties, the trial court, and the COMELEC,
and weighed their assertions. Based on jurisprudence, Section 211 of Batas Pambansa
Blg. 881, as amended ("Omnibus Election Code"), and Section 49 of COMELEC
Resolution No. 4846 ("Resolution 4846"), which enumerate the rules on appreciation of
ballots, we find that we have no reason to overturn the COMELEC's decision. We shall
refer to the pertinent rulings of the trial court and of the COMELEC Second Division and
COMELEC En Banc accordingly. We agree with petitioner that, as written, the Status
Quo Ante Order raised more questions than it solved the legal problems of the case.
The Status Quo Ante order had the nature of a temporary restraining order. We agree
with petitioner that the Status Quo Ante Order had a life span of more than 20 days
since the directive was qualified by the phrase "until further orders from this
Commission." In line with Repol v. Commission on Elections, the Status Quo Ante Order
automatically ceased to have effect on 19 May 2003 since the COMELEC En Banc did
not issue a writ of preliminary injunction. However, in contrast to Repol, no execution
pending appeal was ever issued to any party in the present case. Upon examination of
the events in this case, we find that respondent was proclaimed as the duly elected
Punong Barangay of Nibaliw Vidal, San Fabian, Pangasinan by the BET on 15 July
2002. This was the condition prevailing before the promulgation of the 8 August 2002
decision of the trial court. On the other hand, the trial court found that petitioner is the
duly elected Punong Barangay. Thus, if an execution pending appeal were issued by
the trial court, petitioner should have occupied the position of Punong Barangay. It is the
court's decision that should prevail between the determination by the trial court of whom
of the candidates won the elections and the finding of the Board of Canvassers as to
whom to proclaim. Nevertheless, the COMELEC's subsequent ruling in favor of
respondent and our succeeding affirmation of the COMELEC's ruling defeats the
execution pending appeal and brings us to the present situation: notwithstanding the
previous oaths of office taken by both parties, respondent is the duly elected Punong
Barangay of Nibaliw Vidal, San Fabian, Pangasinan.