94.

    GMA Network, Inc. v. Commission on Elections

G.R. Nos. 205357, 205374, 205592, 205852 & 206360 September 2, 2014

FACTS:

Petitioners ABS-CBN, ABC, GMA Network, Manila Broadcasting Company, Newsounds Broadcasting
Network, and Radio Mindanao Network (RMN) are owners/operators of radio and television networks in
the Philippines. Petitioner Kapisanan ng mga Brodkaster ng Pilipinas is the national organization of
broadcasting companies in the Philippines representing operators of radio and television stations and said
stations themselves.

The heart of the controversy in this case revolves upon the proper interpretation of the limitation on the
number of minutes that candidates may use for television and radio advertisements, as provided in
Section 6 of RA 9006 (Fair Election Act).
 
During the previous elections of May 14, 2007 and May 10, 2010, COMELEC interpreted Section 6 of
RA 9006, regarding airtime limitations, to mean that a candidate is entitled to the said number of minutes
“per station.”
 
For the May 2013 elections, however, respondent COMELEC promulgated Resolution No. 9615,
changing the interpretation of said candidates’ and political parties’ airtime limitation for political
campaigns or advertisements from a “per station” basis, to a “total aggregate” basis.
 
Petitioners assail the constitutionality of Section 9(a) of COMELEC Resolution No. 9615 limiting the
broadcast and radio advertisements of candidates and political parties for national election positions to an
aggregate total of one hundred twenty (120) minutes and one hundred eighty (180) minutes, respectively.
Petitioners allege that Resolutions No. 9615 and 9631, amending the earlier Resolution, are
unconstitutional and issued without jurisdiction or with grave abuse of discretion amounting to lack or
excess of jurisdiction.
 
ISSUE: WON the issuance of Resolution No. 9615 which changed airtime computation on an “aggregate
basis” to a “per station basis”, is within the power of the COMELEC.
 

HELD:
NO. The SC held that it is not within the power of the COMELEC to effect a drastic reduction of the
allowable minutes within which candidates and political parties would be able to campaign through the
air because it appears that the COMELEC did not have any other basis for coming up with a new manner
of determining allowable time limits except its own idea as to what should be the maximum number of
minutes based on its exercise of discretion as to how to level the playing field. (doctrine stated in the
answers to guide qs)
 

QUESTIONS:

1. What is the scope of COMELEC’s power in regulating airtime of political candidates in terms of
television ads?
  The issuance of Resolution No. 9615, changing airtime computation on an aggregate basis to
a per station basis is NOT within the power of COMELEC.
 Doctrine: COMELEC is the office constitutionally and statutorily authorized to enforce
election laws but it cannot exercise its powers without limitations or reasonable basis. It
could not simply adopt measures or regulations just because it feels that it is the right thing
to do, insofar as it might be concerned. It does have discretion, but such discretion is
something that must be exercised within the bounds and intent of the law. In this case,
COMELEC did not provide for any basis for coming up with the aggregate time limit except
its nonchalant exercise of its discretion.
o Furthermore, Resolution No. 9615 was adopted without prior hearing.

2.  What is the basis of this power?

 The authority of the COMELEC to impose airtime limits directly flows from the Fair Election
Act (R.A. No. 9006 [2001]) – one hundred (120) minutes of television advertisement and one-
hundred· eighty (180) minutes for radio advertisement. 

3.  Does COMELEC Resolution No. 9615 need prior hearing before adoption?

 Yes. COMELEC promulgated Resolution No. 9615 on January 15, 2013. It then conducted a
public hearing on January 31, 2013 to explain the aggregate-based airtime limits. As the new
Resolution introduced a radical change in the manner in which the rules on airtime for political
advertisements are to be reckoned, there is a need for adequate and effective means by which
they may be adopted, disseminated and implemented.
95.  Ejercito v. Commission on Elections,

G.R. No. 212398, November 25, 2014

FACTS: 

Three days prior to the May 13, 2013 National and Local Elections, a petition for disqualification was
filed by San Luis before the Office of the COMELEC Clerk in Manila against Ejercito, who was a fellow
gubernatorial candidate and, at the time, the incumbent Governor of the Province of Laguna. Alleged in
his Petition are as follows:

[Ejercito], during the campaign period for 2013 local election, distributed to the electorates of the
province of Laguna the so-called "Orange Card" with an intent to influence, induce or corrupt the voters
in voting for his favor. Copy thereof is hereto attached and marked as Annex "C" and made as an integral
part hereof;

"Orange Card" could be used in any public hospital within the Province of Laguna for their medical needs
as declared by the statements of witnesses which are hereto attached and marked as Annex "D" as integral
part hereof;

The so-called "Orange Card" is considered a material consideration in convincing the voters to cast their
votes for [Ejercito's] favor in clear violation of the provision of the Omnibus Election Code which
provides and I quote:

"Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is
declared by final decision by a competent court guilty of, or found by the Commission of having
(a) given money or other material consideration to influence, induce... or corrupt the voters or
public officials performing electoral functions;

Based on the records of the Provincial COMELEC, the Province of Laguna has a total of 1,525,522
registered electorate. A certification issued by the Provincial Election Supervisor is hereto attached and
marked as Annex "E" as an integral part hereof;

In this regard, par. (a), Section 5 of COMELEC Resolution No. 9615, otherwise known as the Rules and
Regulations Implementing FAIR ELECTION ACT provides and I quote:

"Authorized Expenses of Candidates and Parties. The aggregate amount that a candidate or party
may spent for election campaign shall be as follows:
For candidates Three pesos (P3.00) for every voter currently registered in the
constituency where the candidate filed his certificate of candidacy.
For other candidates without any political party and without any support from
any political party Five pesos (P5.00) for every voter currently registered in the
constituency where the candidate filed his certificate of candidacy.
For Political Parties and party-list groups Five pesos (P5.00) for every voter
currently registered in the constituency or constituencies where it has official candidates.
(underscoring mine for emphasis)
Accordingly, a candidate for the position of Provincial Governor of Laguna is only authorized to incur an
election expense amounting to FOUR MILLION FIVE HUNDRED SEVENTY-SIX THOUSAND FIVE
HUNDRED SIXTY-SIX (P4,576,566.00) PESOS.
However, in total disregard and violation of the afore-quoted provision of law, [Ejercito] exceeded his
expenditures in relation to his campaign for the 2013 election. For television campaign commercials
alone, [Ejercito] already spent the sum of PhP23,730.784 based on our... party's official monitoring on the
following dates[:] April 28, May 4 & May 5, 2013.

He exceeded in the total allowable expenditures for which he paid the sum of P16,611,549;
Subsequently, on May 16, 2013, San Luis filed a Very Urgent Ex-Parte Motion to Issue Suspension of
Possible Proclamation of Respondent and Supplemental to the Very Urgent Ex-Parte Motion to Issue
Suspension of Possible Proclamation of Respondent.

ISSUE:

1. Could the COMELEC disqualify even if that was not prayed for in the petition?
 Yes. In the case at bar, the COMELEC First Division and COMELEC En Banc correctly
ruled that the petition filed by San Luis against Ejercito is not just for prosecution of
election offense but for disqualification as well. Indeed, the following are clear
indications:

 The averments of San Luis' petition rely on Section 68 (a) and (c) of the OEC as
grounds for its causes of action. Section 68 of the OEC precisely enumerates the
grounds for the disqualification of a candidate for elective position and provides,
as penalty, that the candidate shall be disqualified from continuing as such, or if
he or she has been elected, from holding the office.
 Paragraph 2 of San Luis' prayer in the petition states that "[in the event that
[Ejercito] will be able to get a majority vote of the electorate of the Province of
Laguna on May 13, 2013, his proclamation be suspended until further order of
the Honorable Commission." San Luis reiterated this plea when he later filed a
Very Urgent Ex-Parte Motion to Issue Suspension of Possible Proclamation of
Respondent and Supplemental to the Very Urgent Ex-Parte Motion to Issue
Suspension of Possible Proclamation of Respondent. The relief sought is actually
pursuant to Section 6 of R.A. No. 6646 and Section 5 Rule 25 of COMELEC
Resolution No. 9523, both of which pertain to the effect of a disqualification case
when the petition is unresolved by final judgment come election day.
 San Luis' Memorandum emphasized that the case is a "Special Action for
Disqualification," praying that "the Petition BE GRANTED and Ejercito BE
DISQUALIFIED, and PREVENTED from further holding office as Governor of
Laguna."
2. Can a candidate be disqualified for an act done by a third party who simply exercised its right to
free expression without the knowledge and consent of the candidate?
 Yes. Sec. 68 of the Omnibus Election Code. Disqualifications. — Any candidate who, in
an action or protest in which he is a party is declared by final decision by a competent
court guilty of, or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials performing
electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in
his election campaign an amount in excess of that allowed by this Code; (d) solicited,
received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or
(e) violated any of Sections 80, 83, 85, 86, and 261, paragraphs d, e, k, v, and cc,
subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified to run for any elective office under
this Code, unless said person has waived his status as permanent resident or immigrant of
a foreign country in accordance with the residence requirement provided for in the
election laws." 

3. If Ejercito was disqualified, who must succeed, the second placer or the vice-governor? Relate to
cases 83, 84, 85
 Rule on succession will apply. Section 6, Rule 25 of the COMELEC Resolution No.
9523, which governs Section 68 petitions for disqualification, enunciates the rule
succinctly, to wit:

Section 6. Effect of Granting of Petition. — In the event a Petition to disqualify a

candidate is granted by final judgment as defined under Section 8 of Rule 23 and
the disqualified candidate obtains the highest number of votes, the candidate with
the second highest number of votes cannot be proclaimed and the rule of
succession, if allowed by law, shall be observed. In the event the rule of
succession is not allowed, a vacancy shall exist for such position.
96. Dayao v. Commission on Elections

G.R. Nos. 193643 & 193704 January 29, 2013

FACTS:

LPGMA sought to advance its cause by seeking party-list accreditation with the COMELEC, through a
petition for registration as a sectoral organization for the purpose of participating in the May 10, 2010
elections the Party-List System Act.  LPGMA claimed that it has special interest in the LPG industry and
other allied concerns. Without any apparent opposition, LPGMA’s petition was approved by the
COMELEC in its Resolution dated January 5, 2010. Four (4) months thereafter, individual petitioners
lodged before the COMELEC a complaint for the cancellation of LPGMA’s registration as a party-list
organization.  They were later on joined by FPII as a complainant-in-intervention. The complaint
stemmed on the ground that LPGMA does not represent a marginalized sector of the society because its
incorporators, officers and members are not marginalized or underrepresented citizens since they are
actually marketers and independent re-fillers of LPG that control 45% of the national LPG retail market
and have significant ownership interests in various LPG refilling plants.

On the other hand, LPGMA countered that Section 5(2), Article VI of the 1987 Constitution does not
require that party-list representatives must be members of the marginalized and/or underrepresented
sector of the society. It also averred that the ground cited by the petitioners is not one of those mentioned
in Section 6 of R.A. No. 7941. COMELEC further added that LPGMA’s registration was approved as
early as 05 January 2010. Instead of opposing said registration or intervening therein after having been
constructively notified thereof by its publication, petitioners waited almost four (4) entire months before
filing the instant complaint. 

The COMELEC dismissed the complaint for two reasons. First, the ground for cancellation cited by the
petitioners is not among the exclusive enumeration in Section 6 of R.A. No. 7941. Second, the complaint
is actually a belated opposition to LPGMA’s petition for registration which has long been approved with
finality on January 5, 2010. The ruling was reiterated in the COMELEC Resolution dated September 6,
2010 denying the petitioners’ motions for reconsideration.

SUPREME COURT RULING:

There was no valid justification for the dismissal of the complaint for cancellation. However, in light of
COMELEC Resolution dated December 13, 2012, the present petitions ought to be dismissed.

An opposition to a petition for registration is not a condition precedent to the filing of a complaint for
cancellation.

Section 6, R.A. No. 7941 lays down the grounds and procedure for the cancellation of party-list
accreditation, viz:

Sec. 6. Refusal and/or Cancellation of Registration.

The COMELEC may, motu propio or upon verified complaint of any interested party, refuse or cancel, after
due notice and hearing, the registration of any national, regional or sectoral party, organization or
coalition on any of the following grounds:

(1) It is a religious sect or denomination, organization or association, organized for religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation, organization,
whether directly or through any of its officers or members or indirectly through third parties for partisan
election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%)
of the votes cast under the party-list system in the two (2) preceding elections for the constituency in
which it has registered.

For the COMELEC to validly exercise its statutory power to cancel the registration of a party-list
group, the law imposes only two (2) conditions: (1) due notice and hearing is afforded to the party-
list group concerned; and (2) any of the enumerated grounds for disqualification in Section 6 exists.

Section 6 clearly does not require that an opposition to the petition for registration be previously
interposed so that a complaint for cancellation can be entertained. Since the law does not impose such a
condition, the COMELEC, notwithstanding its delegated administrative authority to promulgate rules for
the implementation of election laws, cannot read into the law that which it does not provide. 

The distinctiveness of the two powers is immediately apparent from their basic definitions. To refuse is to
decline or to turn down, while to cancel is to annul or remove. Adopting such meanings within the
context of Section 6, refusal of registration happens during the inceptive stage when an organization seeks
admission into the roster of COMELEC-registered party-list organizations through a petition for
registration. Cancellation on the other hand, takes place after the fact of registration when an inquiry is
done by the COMELEC, motu propio or upon a verified complaint, on whether a registered party-list
organization still holds the qualifications imposed by law. Refusal is handed down to a petition for
registration while cancellation is decreed on the registration itself after the petition has been approved.

Consequently, the COMELEC’s conclusion that the complaint for cancellation, filed four (4) months after
the petition was approved, is actually a belated opposition, obliterates the distinction between the power
to register/refuse and the power to cancel. Since an opposition may only be sensibly interposed against a
petition for registration, the proceedings for which involve the COMELEC’s power to register, it is wrong
to impose it as a condition for the exercise of the COMELEC’s entirely separate power to cancel. As
such, the absence of an opposition to a petition for registration cannot serve to bar any interested party
from questioning, through a complaint for cancellation, the qualifications of a party-list group.
The Court has recognized the COMELEC’s cancellation power in several occasions.

In Bello v. COMELEC, the Court confirmed that a complaint for the cancellation of party-list
registration, aside from a petition for the disqualification of the party-list nominee, provides a "plain,
speedy and adequate remedy", against a party-list organization alleged to have failed to comply with
Section 6 of COMELEC Resolution No. 880733 which requires a party-list group and its nominees to
submit documentary evidence to prove that they belong to a marginalized and underrepresented sector.

In the recent ABC (Alliance for Barangay Concerns) Party-List v. COMELEC,  the Court reiterated
that Section 6 of R.A. No. 7941 validates the authority of the COMELEC, not only to register political
parties, organizations or coalitions, but also to cancel their registration based on the same legal grounds.
Such authority emanates from no less than Section 2(5), Article IX-C of the Constitution, which states:

Sec. 2. The Commission on Elections shall exercise the following powers and functions:

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to
other requirements, must present their platform or program of government; and accredit citizens’ arms of
the Commission on Elections. Religious denominations and sects shall not be registered. Those which
seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this
Constitution, or which are supported by any foreign government shall likewise be refused registration.

Note should be taken of paragraph 5, which disqualifies a party or group for violation of or failure to
comply with election laws and regulations. These laws include Section 2 of RA 7941, which states that
the party-list system seeks to "enable Filipino citizens belonging to marginalized and underrepresented
sectors, organizations and parties x x x to become members of the House of Representatives." A party or
an organization, therefore, that does not comply with this policy must be disqualified.

All told, the COMELEC committed grave abuse of discretion in dismissing the complaint for cancellation
of LPGMA’s party-list accreditation. In the ordinary course of procedure, the herein complaint should be
remanded to the COMELEC considering that the poll body did not proceed to make a proximate
determination of the present circumstances of LPGMA’s qualifications. In view, however of superseding
incidents, the issue involved in the complaint for cancellation can be deemed to have been already settled
and a remand to the COMELEC would only be circuitous and dilatory.

DECISION:

Evidently, the COMELEC has already determined and declared that the present factual circumstances of
LPGMA meet the qualifications imposed by law on party-list groups. It will be a needless roundabout to
still remand the complaint to the COMELEC for it to determine anew the present state of LPGMA's
 qualifications. No useful purpose will be served thereby and it will just be a tedious process of hearing the
factual and evidentiary matters of LPGMA's qualifications again. The COMELEC in its Resolution dated
December 13, 2012 has passed upon the issue and all other relevant questions raised in the complaint.

QUESTIONS: The power of COMELEC to cancel the registration of any national, regional or sectoral
party, organization or coalition

    For the COMELEC to validly exercise its statutory power to cancel the registration of a party-list group,
the law imposes only two (2) conditions: (1) due notice and hearing is afforded to the party-list group
concerned; and (2) any of the enumerated grounds for disqualification in Section 6 exists.

Sec. 6. Refusal and/or Cancellation of Registration.

The COMELEC may, motu propio or upon verified complaint of any interested party, refuse or cancel,
after due notice and hearing, the registration of any national, regional or sectoral party, organization or
coalition on any of the following grounds:

(1) It is a religious sect or denomination, organization or association, organized for religious purposes;

(2) It advocates violence or unlawful means to seek its goal;

(3) It is a foreign party or organization;

(4) It is receiving support from any foreign government, foreign political party, foundation, organization,
whether directly or through any of its officers or members or indirectly through third parties for partisan
election purposes;

(5) It violates or fails to comply with laws, rules or regulations relating to elections;

(6) It declares untruthful statements in its petition;

(7) It has ceased to exist for at least one (1) year; or

(8) It fails to participate in the last two (2) preceding elections or fails to obtain at least two per centum (2%)
of the votes cast under the party-list system in the two (2) preceding elections for the constituency in
which it has registered.

Note should be taken of paragraph 5, which disqualifies a party or group for violation of or failure to
comply with election laws and regulations. These laws include Section 2 of RA 7941, which states that
the party-list system seeks to "enable Filipino citizens belonging to marginalized and underrepresented
sectors, organizations and parties x x x to become members of the House of Representatives." A party or
an organization, therefore, that does not comply with this policy must be disqualified.
97. Atienza v. Commission on Elections

G.R. No. 188920, February 16, 2010

FACTS:

The case revolves around two inter-party controversies within the Liberal Party, namely:

1.       The validity of Roxas’s election as LP’s president as well as the election of new party leaders.

2.       The validity of Atienza and some others’ expulsion as members of the LP 

On July 5, 2005 Drilon, as president of LP, announced his withdrawal of support for the President ArroyO
administration.  Atienza, as LP Chairman and some others denounced this move claiming that this was done
without the party’s consent.

In a meeting which took place on March 2, 2006, the assembly proceeded to declare all positions in the LP’s
ruling body vacant and elected new officers, with Atienza as President. Drilon filed a petition with
COMELEC for its nullification. Saying that his 3-year term was to end November 2007 and that the election
was illegal because the National Executive Council (NECO)and the National Political Council (NAPOLCO)
were not properly convened.

COMELEC annulled the elections and ordered a new one under COMELEC’s supervision. It ruled that the
election was invalid for not being convened according to the Salonga Constitution. But since the said
Constitution was not properly ratified Drilon’s Term may deemed to have ended.

The position of LP president thus was in a holdover capacity until a new one is elected.

Subsequently the LP held a NECO meeting to elect new party leaders before respondent Drilon’s term
expired. 51 out of 87 NECO members attended. Manuel Roxas II was elected as the new President of LP.

Atienza et al. filed a petition for mandatory and prohibitory injunction before the COMELEC against Roxas,
Drilon and Acosta to enjoin Roxas from assuming the Presidency. They claimed that the NECO assembly was
invalidly convened, as the list of NECO’s composition was supposed to be based on the Party’s 60 th

Anniversary Souvenir Program.  This was opposed by Roxas, saying that the list can no longer be used as a
basis, because some of those in the list died, resigned or had gone on leave. In other words NECO
membership was not fixed, I changed due to supervening circumstances.

Roxas also claimed that the Party deemed petitioners Atienza et al. resigned for holding the illegal for holding
the illegal elections of LP officers on March 2, 2006, pursuant to a 2006 NAPOLCO resolution ratified
subsequently by NECO.

COMELEC ruled that the NECO which elected Roxas as LP president was not properly convened. However
it ruled that it cannot decide on the validity of Atienza et al.’s expulsion from LP as it was a membership issue
that is within the political party and was a matter beyond its jurisdiction to resolve.
ISSUE: Whether or not COMELEC gravely abused its discretion when it resolved the issue concerning the
validity of the NECO membership that elected respondent Roxas as LP president but not resolving the issue
concerning Atienza et al’s expulsion

RULING:

The COMELEC’s jurisdiction over intra-party disputes is limited. It does not have blanket authority to
resolve any and all controversies involving political parties. Political parties are generally free to conduct their
activities without interference from the state. The COMELEC may intervene in disputes internal to a party
only when necessary to the discharge of its constitutional functions.

The COMELEC’s jurisdiction over intra-party leadership disputes has already been settled by the Court. The
Court ruled in Kalaw v. Commission on Elections that the COMELEC’s powers and functions under Section
16

2, Article IX-C of the Constitution, "include the ascertainment of the identity of the political party and its
legitimate officers responsible for its acts." The Court also declared in another case that the COMELEC’s
17

power to register political parties necessarily involved the determination of the persons who must act on its
behalf. Thus, the COMELEC may resolve an intra-party leadership dispute, in a proper case brought before it,
as an incident of its power to register political parties.

The validity of respondent Roxas’ election as LP president is a leadership issue that the COMELEC had to
settle. Under the amended LP Constitution, the LP president is the issuing authority for certificates of
nomination of party candidates for all national elective positions. It is also the LP president who can authorize
other LP officers to issue certificates of nomination for candidates to local elective posts. In simple terms, it is
the LP president who certifies the official standard bearer of the party.

The law also grants a registered political party certain rights and privileges that will redound to the benefit of
its official candidates. It imposes, too, legal obligations upon registered political parties that have to be carried
out through their leaders. The resolution of the leadership issue is thus particularly significant in ensuring the
peaceful and orderly conduct of the elections. 

QUESTIONS:

1. Does COMELEC possess jurisdiction over intra-party disputes? Does it have blanket authority to
resolve any and all controversies involving political parties?

Answer: The COMELEC’S jurisdiction over intra-party disputes is limited. It does not have
blanket authority to resolve any and all controversies involving political parties. The COMELEC
may intervene in disputes internal to a party only when necessary to the discharge of its
constitutional functions. 

Section 2, Article IX-C of the Constitution states that COMELEC’s powers and functions”include
the ascertainment of the identity of the political party and its legitimate officers responsible for its
acts.”

The validity of the election of the president of a party-list is a leadership issue that COMELEC has
to settle pursuant to the above mentioned constitutional function. The president of a party-list is
the issuing authority for certificates of nomination of party candidates for all national elections and
the one who can authorize other officers to issue certificates of nomination for candidates  to local
 elective posts. The law also accords to political parties certain rights, privileges and legal
obligations that have to be carried out by their leaders. 

Hence, the resolution of the leadership issue is thus a significant part in ensuring the peaceful and
orderly conduct of the elections. 

Membership issues on the other hand are deemed matters within a political party, which is not
within COMELEC’s jurisdiction. 
98. Basher v. Commission on Elections

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 of 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."
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."

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

ISSUE: WON there was a valid postponement of election

HELD:

NO. An election officer has no authority to declare a failure of election. Only COMELEC itself has legal
authority to exercise such power. An election officer alone, or even with the agreement of the candidates,
cannot validly postpone or suspend the elections. An announcement “over the mosque” was made at
around 8:30pm informing the public that the election will push through at 9:00pm at the incumbent
Mayor’s residence. To require the voters to come to the polls on such short notice was highly
impracticable. It is essential to the validity of the election that the voters have notice in some form, either
actual or constructive, of the time, place and purpose thereof. The time for holding it must be
authoritatively designated in advance. Moreover, he cannot conduct the elections from 9:00 p.m. until the
 wee hours of the following day for this in effect is postponing the elections beyond the time set by law
(i.e., 7:00 a.m. to 3:00 p.m.).

QUESTIONS:

1.  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.
 NO. First, the place where the voting was conducted was illegal. The Omnibus Election
Code provides that "The 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,
supposedly executed by the members of the Board of Election Tellers (BET) for
Barangay Maidan, alleges that the election of officials was held at the residence of the
former Mayor, which is located at Barangay Pandarianao, instead of the officially
designated polling precinct at Cagayan Elementary School. If this allegation were true,
such "election" cannot be valid, as it was not held within the barangay of the officials
who were being elected. While the BET members later repudiated their Affidavit, they
could only claim that the election was held "in Barangay Maidan." They, however, failed
to specify the exact venue. In fact, to this date, even the respondents have failed to
disclose where exactly the voting was conducted. This glaring omission definitely raises
serious questions on whether the election was indeed held in a place allowed by law.
 Second, as to the time for voting, the law provides that "The casting of votes shall start at
7:00AM and shall end at 3:00PM (on the same day), 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." However, the "election" for Barangay Maidan officials was
supposedly held after 9:00 p.m. of August 30, 1997 until the early morning of the
following day. Certainly, such a schedule was not in accordance with law or the Comelec
Rules.
 Third, the Comelec scheduled the special election on August 30, 1997. Any suspension or
postponement of an election is governed by RA 6679, which states that "when 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 COMELEC
motu proprio or upon sworn petition of 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 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 90 days from the date of the original
election."

Election Officer here in the case practically postponed the election from the official
original schedule of 7:00 a.m. to 3:00 p.m. to 10:00 p.m. until early morning of the
following day. She attempted to justify her postponement of the election by citing threats
of violence and bloodshed. Allegedly because of the tension created by armed escorts of
the municipal mayor and the military, the officer declared a failure of election in order
"to ease their aggression." However, an election officer has no authority to declare a
failure of election. 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.
  Fourth, the officer did not follow the procedure laid down by law for election
postponement or suspension or the declaration of a failure of election since it clearly
appears from the very report to the Comelec that she did not conduct any proceeding,
summary or otherwise, to find out whether any of the legal grounds for the suspension or
postponement or the declaration of failure of the election actually existed in the barangay
concerned.
 Finally and very significantly, the electorate was not given ample notice of the exact
schedule and venue of the election. In the case at bar, the announcement was made only
minutes before the supposed voting.

2.   Failure of election vs the absence of a valid electoral exercise.

 the Comelec points out that a failure of election requires the concurrence of two
conditions, namely (1) no voting took place in the precinct or precincts on the date fixed
by law, or even if there was voting, the election resulted in a failure to elect; and (2) the
votes not cast would have affected the result of the election.
 Absence of a valid electoral exercise: The disputed “election” was illegal, irregular, and
void. (i.e. Election situs was illegal, Voting time was irregular, Election postponement
was invalid, etc.) 

In the case at bar, The place where the voting was conducted was illegal. As to the time
of voting, the law provides that the casting of votes shall start at 7am and end at 3pm. The
election officer did not follow the procedure laid down by law for election postponement
or suspension or the declaration of a failure of election. The electorate was also not given
ample notice of the exact schedule and venue of the election.
6. Tan v. Commission on Elections, G.R. Nos. 166143-47 & 166891, [November 20, 2006], 537 PHIL
510-549       

FACTS:

These are two petitions under Rule 65 of the Rules of Court. The first is the Petition for Certiorari and
Prohibition with Prayer for the Issuance of a Writ of Preliminary Injunction and/or a Temporary
Restraining Order which seeks to set aside the October 18, 2004 Joint Resolution[4] of the COMELEC en
banc which rejected the prayer for declaration of failure of elections by petitioners Tan and Burahan.
The other is a Petition for Certiorari with Prayer for a Temporary Restraining Order and/or Writ of
Preliminary Injunction[5] which seeks to annul and set aside the December 14, 2004 and February 7,
2005 Orders of the COMELEC First Division, which denied petitioner Loong's motion to dismiss.
These two cases were consolidated because they arose substantially out of the same facts.

Petitioners Abdusakur M. Tan and Basaron Burahan were the gubernatorial and vice-gubernatorial
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 vice-mayor, 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 or the municipality of Luuk, Sulu, another Petition for
Declaration of Failure of Elections was filed by another gubernatorial candidate, Yusop Jikiri, 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.

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 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."

Even before the filing of the four (4) aforesaid petitions, Abdusakur M. Tan had filed four (4) other
petitions, one before the Municipal Board of Canvassers of Parang, Sulu for the exclusion of election
returns from several precincts docketed as SPA No. 04-138, and the other three before the Provincial
Board of Canvassers of Sulu to exclude certificates of canvass from Luuk, Panamao, and Parang.

All these petitions were dismissed by the Boards concerned, prompting petitioner Tan to file an appeal
with the COMELEC First Division which issued an Order on May 24, 2004 directing the concerned
boards of canvassers to suspend their proceedings and to refrain from proclaiming any winning candidate.
However, on the same day that the COMELEC First Division issued the said Order, private respondent
Benjamin Loong was proclaimed the winning governor of Sulu and he assumed office. This prompted
petitioner Tan to file a Petition for Annulment of the Proclamation with the COMELEC.

First Division
On June 21, 2004, the COMELEC First Division issued an Order [26] which granted the petition and
annulled the proclamation of respondent Loong as governor of Sulu Province.

In the meantime, on July 19, 2004, respondent Yusop H. Jikiri filed before the COMELEC a Petition of
Protest Ad Cautelam praying, inter alia, for the recount or revision of the ballots cast and the examination
of election returns in four (4) municipalities.
The COMELEC en banc, through its October 18, 2004 Joint Resolution, dismissed all five (5) petitions
filed on May 17, 2004 to declare a failure of elections. This prompted respondent Jikiri to immediately
convert his petition ad cautelam into a regular election protest which was granted by the COMELEC First
Division

On October 18, 2004, the COMELEC en banc, through a Joint Resolution,[29] dismissed the five (5)
Petitions to Declare Failure of Elections in the towns of Maimbung, Luuk, Tongkil, and Panamao, for
lack of merit.

The COMELEC held that none of the grounds relied upon by petitioners fall under any of the three
instances justifying a declaration of failure of election.
The COMELEC en banc ruled that the grounds raised by petitioners were best ventilated in an election
protest.

The COMELEC did not give credence to petitioners' evidence in support of their allegations of fraud and
terrorism since their evidence consisted mainly of affidavits executed by their own poll watchers.

The Commission considered the affidavits self-serving and insufficient to annul the results of the election.
Besides, it pointed out that petitioners presented only a single affidavit of an alleged disenfranchised
voter. Thus, on October 18, 2004, the COMELEC, through a Joint Resolution, dismissed the petitions for
lack of merit. Petitioners' counsel received a copy of the Joint Resolution on October 21, 2004.
However, the Joint Resolution was not concurred in by COMELEC Commissioner Mehol K. Sadain.
The Sadain Dissenting Opinion was released on November 23, 2004, and a copy of the opinion was
served on petitioners' counsel on November 24, 2004.

Petitioners filed the instant petition in G.R. Nos. 166143-47 on December 13, 2004, 19 days after they
received a copy of the Sadain Dissenting Opinion, and 53 days after they received a copy of the October
18, 2004 Joint Resolution.

After the dismissal of the petitions to declare failure of elections on October 18, 2004 and the conversion
of respondent Jikiri's protest ad cautelam to a regular election protest on October 28, 2004, petitioner
Benjamin T. Loong filed on November 8, 2004 his Answer with Motion to Dismiss and/or with Counter
Protest.

QUESTIONS:

1.    Whether the COMELEC has jurisdiction to entertain electoral protests filed beyond ten (10)
days after the proclamation of the results of an election for a given provincial office.

First Issue: Timeliness of election protest

Here, the petitioner's arguments on the belated filing of the respondent's election protest may merit
consideration had the petitions against him been only for the annulment of his May 24, 2004
proclamation. However, the numerous election-related petitions, which were filed against petitioner
Loong by the other Sulu gubernatorial candidates, sought to suspend his then impending
proclamation which, as turned out, was eventually made on May 24, 2004. And as events unfolded,
some of the petitions adverted to resulted in the issuance on May 17, 2004 of an Order suspending the
proclamation of the governor-elect of Sulu.[87] Petitioner Loong himself admitted as much: "x x x on
May 17, 2004, the COMELEC Second Division issued an Order suspending the proclamation of the
winning candidate for Governor of the province of Sulu."
Upon the foregoing considerations, the filing of the election protest ad cautelam on July 19, 2004 or
fifty-six (56) days after the May 24, 2004 proclamation was contextually on time. This is because the
10-day reglementary period to file such protest which ordinarily would have expired on June 3,
2004 did not start to run at all. It cannot be over-emphasized that the pre-proclamation controversies
Abdusakur Tan initiated right after the May 10, 2004 elections, that is, SPC Nos. 04-163, 04-164, and 04-
165, were only resolved on March 18, 2005.
Thus, the imputation of grave abuse of discretion, on the part of respondent COMELEC's First Division,
in refusing to dismiss respondent Jikiri's Petition of Protest Ad Cautelam (EPC No. 2004-66) on the stated
ground that he filed the same after the lapse of the period for filing an election protest is untenable.

1.   Whether the COMELEC has jurisdiction to entertain simultaneously pre-proclamation

controversies and electoral protests.

Second Issue: Simultaneous prosecution of pre-proclamation controversies and election protests there is
no law or rule prohibiting the simultaneous prosecution or adjudication of pre-proclamation controversies
and election protests. Allowing the simultaneous prosecution scenario may be explained by the fact
that pre-proclamation controversies and election... protests differ in terms of the issues involved
and the evidence admissible in each case[95] and the objective each seeks to achieve. Moreover, the
Court, under certain circumstances, even encourages the reinforcement of a pre-proclamation suit
with an election protest. As we held in Matalam v. Commission on Elections:[96]
The Court agonized over its inability to fully look into the election irregularities alleged by petitioner, due
to the very limited scope of pre-proclamation controversy. Thus, the Court reminds lawyers handling
election cases to make a careful choice of remedies.
Where it becomes apparent that a pre-proclamation suit is inadequate, they should immediately choose
another timely remedy, as a petition to annul the election results or to declare a failure of elections or
even an election protest, so that election irregularities may be... fully ventilated and properly adjudicated
by the competent tribunal.
For another, simultaneous adjudications offer more practical features than piecemeal adjudications in
expediting the resolution of cases. We must stress the importance of speedy disposition of election cases
because a late decision, such as one that comes out when the term of office in dispute is about to expire, is
a veritable useless scrap of paper.
It bears reiterating x x x that the COMELEC is with authority to annul any canvass and proclamation
illegally made. The fact that a candidate illegally proclaimed has assumed office is not a bar to the
exercise of such power. It is also true that as a general rule, the proper remedy after the proclamation of
the winning candidate for the position contested would be to file a regular election protest or quo
warranto. This rule, however, admits of exceptions and one of those is where the proclamation was null
and void. In such a case, i.e., where the proclamation is null and void, the proclaimed candidate's
assumption of office cannot deprive the COMELEC of the power to declare such proclamation a nullity.

7. Mutilan v. Commission on Elections,

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.

Petitoners counsel admitted that the case is not an election protest but an annulment of elections and
prayed that it be elevated to the COMELEC en banc and not the 2nd Division where it was originally in.
Petitioner argued that jurisdiction of this case may be heard by both division and en banc so the second
division can legally elevate the case to the Commission En Banc pursuant to its rules of procedure to
expedite disposition of election case.
 
The COMELEC Second Division ruled that jurisdiction over petitions for annulment of elections is
vested in the COMELEC En Banc. However, the elevation of the case to the COMELEC En Banc is not
sanctioned by the rules or by jurisprudence. Thus, the COMELEC Second Division dismissed the petition
for lack of jurisdiction.

COMELEC En Banc denied the motion for reconsideration for petitioner’s failure to verify it in
accordance with Section 3, Rule 19 of the COMELEC Rules of Procedure. The COMELEC En Banc
ruled that the 21 November 2005 Order of the COMELEC Second Division had become final and
executory on 8 December 2005. Hence, the petition before this Court.
 

ISSUE: Whether or not COMELEC 2nd Division may elevate the petition for declaration of failure of
election which is properly under the jurisdiction of En Banc.
 

HELD:

Yes. 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.

SC agrees. While automatic elevation of a case erroneously filed with the Division to En Banc is not
provided in the COMELEC Rules of Procedure, such action is not prohibited. Section 4, Rule 2 of the
COMELEC Rules of Procedure provides:
 Means to Effect Jurisdiction. - All auxiliary writs, processes and other means necessary to carry into
effect its powers or jurisdiction may be employed by the Commission; and if the procedure to be followed
in the exercise of such power or jurisdiction is not specifically provided for by law or these rules, any
suitable process or proceeding may be adopted.

Hence, there is nothing in the COMELEC Rules of Procedure to prevent the COMELEC Second Division
from referring the petition to annul the elections to the COMELEC En Banc. 

QUESTIONS:

1.    Jurisdiction of a COMELEC division and en banc 

Section 3, Article IX-C of the 1987 Constitution provides, all election cases, including pre-proclamation
controversies, must be heard and decided by a division of the COMELEC.

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. 

By virtue of 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 supported 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 (electoral protest/post-proclamation) 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 and its dismissal of the case is
only proper as the authority to do so is with COMELEC En banc.
8. Doromal v. Biron,

G.R. No. 181809 February 17, 2010

FACTS:

Petitioner Rose Marie D. Doromal (Doromal) and private respondent Hernan G. Biron (Biron) were the vice
mayoralty candidates for the Municipality of Dumangas, Iloilo in the May 14, 2007 elections. Biron objected
to the inclusion of 25 election returns. Biron anchored his objections to the inclusion of the 21 returns on the
alleged missing taras (the line representing one vote in the counting of votes at the precinct level; Each vote
shall be recorded by a vertical line, except every fifth vote which shall be recorded by a diagonal line crossing
the previous four vertical lines) in Copy 4 of the contested returns, which he obtained as the standard bearer
of LAKAS-CMD, the recognized dominant majority party in said elections. As regards the remaining four
contested returns, Biron opposed their inclusion allegedly because there was a discrepancy between the
number of votes stated in the said returns and those stated in the certificate of votes issued by the Board of
Election Inspectors (BEI).

Municipal Board of Canvassers (MBC) denied the petitions for exclusion since there was no tampering on the
number of taras, and that the election return was complete with no material defect.

COMELEC Second Division: Partly granted the appeal and ordered that 11 of the contested returns be
excluded because they were allegedly tampered or falsified. It held that eight of the 11 subject returns showed
that the taras were either closed on the third or fourth vote, instead of on the fifth vote, resulting in a
discrepancy between the number of taras vis--vis the written figures and words in the said returns. With
regard to the remaining three returns, the Second Division noted a glaring dissimilarity between the votes
stated in the said returns and those stated in the certificate of votes. It lent credence to the affidavits of Birons
poll watchers stating that numerous irregularities attended the tallying of the votes at the precinct level.

Commissioner Sarmiento’s Dissent: the missing taras did not, by themselves, conclusively establish that the
subject returns were altered or tampered. Also, the affidavits of Birons poll watchers should not have been
given weight for being self-serving. In his view, the proper recourse was not to exclude the subject returns but
to order the correction of manifest errors so that the number of votes in figures and words would conform to
the number of taras in the subject return.

MBC reconvened and proceeded to canvass the returns according to the decision of the 2 division, Biron
nd

emerged as the winning candidate

COMELEC En Banc: affirmed 2 division. Second Division properly appreciated the affidavits of Birons poll
nd

watchers given the serious allegations of irregularities that attended the tallying of votes; that the use of the
certificate of votes to establish tampering in the subject returns was proper in a pre-proclamation controversy;
and that an examination of the records of this case supported the Second Divisions findings that the subject
returns were tampered or falsified.

ISSUES

1. The COMELEC gravely abused its discretion when it failed to compare the contested returns with
the other authentic copies thereof before ruling that there was tampering or falsification of the
said returns. - YES
 2. The COMELEC gravely abused its discretion when it used the certificate of votes to exclude the
three contested election returns considering that it cannot go beyond the face of the returns in
establishing that there was tampering or falsification and considering further that said certificates
did not comply with Section 17 of RA 6646. - YES

3. The COMELEC gravely abused its discretion when it gave credence to the self-serving affidavits
of private respondents poll watchers. - YES

4. The COMELEC gravely abused its discretion when it ordered the exclusion of the subject returns
because, in case of falsification or tampering, the procedure under Sections 235 and 236 of the
OEC should have been followed in order not to disenfranchise the voters. - YES

HELD:

COMELEC gravely abused its discretion amounting to lack or excess of jurisdiction in ordering the
exclusion of the subject returns. The ruling contravenes clear legal provisions as well as long standing
jurisprudence on the admissibility of the certificate of votes and the appreciation of election returns. The
refusal of the COMELEC to heed this Courts repeated pronouncements has again led to the
disenfranchisement of voters in this case. The writ, therefore, lies to correct this grossly abusive exercise
of discretion.

The certificates of votes are inadmissible to prove tampering, alteration or falsification for failure to
comply with Sections 16 and 17 of RA 6646.

In the instant case, the certificates of votes, 7 are defective, for they do not contain (1) the thumbmarks of
the members of the BEI, (2) the total number of voters who voted in the precinct, and (3) the time of the
issuance of the certificates, (4) the names, signatures and thumbmarks of the members of the BEI, (5) the
total number of voters who voted in the precinct, and (6) the time of the issuance of the certificate.

Aida Pineda, private respondents poll watcher in said precinct, claims that she prepared a certificate of
votes reflective of the true tally in the election return, but the members of the BEI refused to affix their
signatures thereto. Even if we were to concede that the BEI members unjustifiedly refused to sign, this
would not validate the said certificate. Private respondents remedy was to compel the BEI to issue the
certificate of votes under pain of prosecution for an election offense. At any rate, we cannot admit the
defective certificate because, by Pinedas own admission, she was the one who prepared the entries in the
said certificate and not the BEI as required by Section 16 of RA 6646, thus raising grave doubts as to its
accuracy.

The rationale of the law is perceptible. By requiring that the certificate of votes be duly authenticated by
at least two members of the BEI who issued the same, the law seeks to safeguard the integrity of the
certificate from the time it is issued by the BEI to the watcher after the counting of votes at the precinct
level up to the time that it is presented to the board of canvassers to prove tampering. The procedure is
consistent with the over-all policy of the law to place a premium on an election return, which appears
regular on its face, by imposing stringent requirements before the certificate of votes may be used to
controvert the election returns authenticity and operate as an exception to the general rule that in a pre-
proclamation controversy, the inquiry is limited to the four corners of the election return.
 The affidavits of private respondents poll watchers are self-serving and grossly inadequate to establish
the tampering of the subject returns. Similarly, the one, or, at most, two missing taras in each of the eight
subject returns, without more, does not establish tampering.

In the absence of clearly convincing evidence, the validity of election returns must be upheld. A
conclusion that an election return is obviously manufactured or false and consequently should be
disregarded in the canvass must be approached with extreme caution and only upon the most convincing
proof. Corrolarily, any plausible explanation, one which is acceptable to a reasonable man in the light of
experience and of the probabilities of the situation, should suffice to avoid outright nullification, which
results in disenfranchisement of those who exercised their right of suffrage. COMELEC placed undue
reliance on the affidavits of Birons poll watchers to establish the irregularities and fraud allegedly
committed during the counting of votes. These affidavits are evidently self-serving.

In case of discrepancy in the other authentic copies of an election return, the procedure in Section 236 of
the Omnibus Election Code should be followed.

SECTION 236. Discrepancies in election returns. In case it appears to the board of canvassers that
there exists discrepancies in the other authentic copies of the election returns from a polling place or
discrepancies in the votes of any candidate in words and figures in the same return, and in either case
the difference affects the results of the election, the Commission, upon motion of the board of
canvassers or any candidate affected and after due notice to all candidates concerned, shall proceed
summarily to determine whether the integrity of the ballot box had been preserved, and once satisfied
thereof shall order the opening of the ballot box to recount the votes cast in the polling place solely for
the purpose of determining the true result of the count of votes of the candidates concerned. (Emphasis
supplied)

The paramount consideration has always been to protect the sanctity of the ballot; not to haphazardly
disenfranchise voters, especially where, as here, the election is closely contested. The COMELECs
constitutional duty is to give effect to the will of the electorate; not to becloud their choice by defying the
methods in the OEC designed to ascertain as far as practicable the true will of the sovereign people.
Verily, the strength and stability of our democracy depends to a large extent on the faith and confidence
of our people in the integrity of the electoral process where they participate as a particle of democracy.
That is the polestar that should have guided the COMELECs actions in this case.

QUESTION/S:

1.     How do we appreciate election returns?

In the absence of clearly convincing evidence, the validity of election returns must be upheld. A
conclusion that an election return is obviously manufactured or false and consequently should be
disregarded in the canvass must be approached with extreme caution and only upon the most convincing
proof. Corrolarily, any plausible explanation, one which is acceptable to a reasonable man in the light of
experience and of the probabilities of the situation, should suffice to avoid outright nullification, which
results in disenfranchisement of those who exercised their right of suffrage.
9. Brillantes, Jr. v. Commission on Elections
G.R. No. 163193, June 15, 2004

FACTS: 

Petitioner seeks to nullify Resolution 6712 approved by COMELEC captioned GENERAL

INSTRUCTIONS FOR THE ELECTRONIC TRANSMISSION AND CONSOLIDATION OF
ADVANCED RESULTS IN THE MAY 10, 2004 ELECTIONS. 

In 1997, Congress enacted RA 8436, authorizing the COMELEC to use an automated election system
(AES) for the process of voting, counting of votes and canvassing/consolidating the results of the national
and local elections. It also mandated the COMELEC to acquire automated counting machines (ACM),
computer equipment, devices and materials; and to adopt new electoral forms and printing materials. 

COMELEC initially intended to implement the automation during the 1998 presidential elections; failure
of the machines to read correctly some automated ballots deferred its implementation

In the 2001 elections, the counting and canvassing of votes for both national and local positions were also
done manually, as no additional ACMs had been acquired because of time constraints

In 2002, COMELEC adopted a modernization program for the 2004 elections consisting of 3 phases:

1.  Computerized system of registration and voters validation or the Biometrics system of
registration
2.     Computerized voting and counting of votes
3.     Electronic transmission of results
It also resolved to conduct biddings for the 3 phases

COMELEC promulgated Resolution No. 6074 awarding the contract for Phase 2 to Mega Pacific
Consortium (MPC) and correspondingly entered into a contract with the latter to implement the project.
On the same day, COMELEC entered into a contract with Phil Multi-Media System, Inc (PMSI); contract
pertains to Phase 3 of the modernization program

Meanwhile, the Information Technology Foundation of the PH (ITFP) filed a petition for certiorari and
prohibition for the nullification of Resolution 6074

In 2004, Court nullified Resolution 6074. Also voided was the subsequent contract entered into by
COMELEC with MPC for the purpose of implementing Phase 2; Phase 2 was thus scrapped (revert to
manual voting and counting system)

On the other hand, the validation scheme under Phase I of the AES encountered problems; COMELEC
made pronouncements prior to the elections that it was reverting to the old listing of voters. Despite the
scrapping of Phase 2, COMELEC nevertheless ventured to implement Phase 3 through an e-transmission
of advanced unofficial results of the 2004 elections (unofficial quick count)

Senate President Drilon wrote Chairman Abalos stating his opinion that the COMELEC should not
conduct a quick count on the results of the election for Pres and VP:
o   “Under Section 4 of Article VII of the Constitution, it is the Congress that has the sole and exclusive
authority to canvass the votes for President and Vice-President. Thus, any quick count to be conducted
by the Commission on said positions would in effect constitute a canvass of the votes of the President
and Vice-President, which not only would be pre-emptive of the authority of the Congress, but also
would be lacking of any Constitutional authority.”

Notwithstanding and despite the explicit specification in the project contract for Phase 3 that the same
was functionally intended to be an interface of Phases 1 and 2, COMELEC was determined to carry out
Phase 3 of the AES. 

COMELEC then met en banc to update itself on and resolve whether to proceed with its implementation
of Phase 3. COMELEC, 2 weeks before the national and local elections, approved the assailed resolution
declaring that it adopts the policy that the precinct election results of each city and municipality shall be
immediately transmitted electronically in advance to the COMELEC. The assailed resolution further
provides that written notices of the date, time and place of the e-transmission of advanced precinct results
shall be given. In addition, Section 13 provides that the encoding proceedings were ministerial and the
tabulations were advanced unofficial results.

In keeping with the unofficial character of the electronically transmitted precinct results, the assailed
resolution expressly provides that no print-outs shall be released, instead, consolidated and per-precinct
results shall be made available via the Internet, text messaging, and electronic billboards in designated
locations.

The National Citizens Movement for Free Elections (NAMFREL), and the heads of the major political
parties wrote the COMELEC detailing their concerns about the assailed resolution:

o   The Resolution disregards RA 8173, 8436, and 7166 which authorize only the citizens arm to use
an election return for an unofficial count

o   The conduct of an advanced count by the COMELEC may affect the credibility of the elections
because it will differ from the results obtained from canvassing.

ISSUE: Whether Resolution 6712 is void. 

HELD:
Yes. COMELEC committed GAD in issuing Reso 6712. Petition granted. 
The assailed resolution usurps, under the guise of an unofficial tabulation of election results based on a
copy of the election returns, the sole and exclusive authority of Congress to canvass the votes for the
election of President and Vice-President. Article VII, Section 4 of the Constitution provides in part:
 
The returns of every election for President and Vice-President duly certified by the board of
canvassers of each province or city, shall be transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the certificates of canvass, the President of the Senate
shall, not later than thirty days after the day of the election, open all the certificates in the
presence of the Senate and the House of Representatives in joint public session, and the
Congress, upon determination of the authenticity and due execution thereof in the manner
provided by law, canvass the votes
  
Such resolution directly infringes the authority of Congress, considering that Section 4 thereof allows the
use of the third copy of the Election Returns (ERs) for the positions of President, Vice-President, Senators
and Members of the House of Representatives, intended for the COMELEC, as basis for the encoding and
transmission of advanced precinct results, and in the process, canvass the votes for the President and
Vice-President, ahead of the canvassing of the same votes by Congress.
 
The contention of the COMELEC that its tabulation of votes is not prohibited by the Constitution and
RA. 8436 as such tabulation is unofficial, is puerile and totally unacceptable. If the COMELEC is
proscribed from conducting an official canvass of the votes cast for the President and Vice-President, the
COMELEC is, with more reason, prohibited from making an unofficial canvass of said votes.

Respondent COMELEC is the sole body tasked to enforce and administer all laws and regulations relative
to the conduct of an election, plebiscite, initiative, referendum and recall and to ensure free, orderly,
honest, peaceful and credible elections is not questioned. However, the duties of the COMELEC under
the Constitution, RA 7166, and other election laws are to be carried out, at all times, in its official
capacity. 
 
There is no constitutional and statutory basis for the respondent COMELEC to undertake a separate and
an unofficial tabulation of results, whether manually or electronically, for in conducting such unofficial
tabulation of the results of the election, the COMELEC descends to the level of a private organization
and spends public funds for the purpose. As correctly pointed out by the petitioner, the AES process is
mutually dependent upon the other; one cannot exist if the others do not. Since the court has already
scrapped the contract for Phase II of the AES, the COMELEC cannot as of yet implement the Phase III of
the program.

[1]As to the procedural issues, SC ruled as follows:

o    that petitioner and PII have standing (resolution involves expenditure of funds, hence they have
standing as taxpayers/most of them are members of major political parties and some represent
NAMFREL, thus, they have direct interest in the manner COMELEC would conduct
elections/PII SP Drilon and SOH de Venecia are the heads of Congress who is exclusively
authorized to canvass the votes for Pres and VP, thus they have standing to prevent usurpation of
the Congress’ consti prerog) 

o   issue is not a political question, political questions are concerned with issues dependent upon the
wisdom, not legality of a particular measure; present petition does not merely concern the
wisdom of the assailed resolution but focuses on its alleged disregard for applicable statutory and
constitutional provisions.

QUESTION/S:

1. Does Reso 6712 preempt the sole and exclusive authority of Congress under Article VII, Section
4 of the Constitution to canvass the votes for President and Vice-President? 

YES. There has been no appropriation by Congress for the respondent COMELEC to conduct an
unofficial electronic transmission of results of the 2004 elections, any expenditure for the said purpose
contravenes the Constitution. There is no constitutional and statutory basis for the respondent COMELEC
to undertake a separate and an unofficial tabulation of results, whether manually or electronically. Indeed,
by conducting such unofficial tabulation of the results of the election, the COMELEC descends to the
level of a private organization, spending public funds for the purpose. Besides, it is absurd for the
COMELEC to conduct two kinds of electoral counts a slow but official count, and an alleged quicker but
unofficial count, the results of each may substantially differ.
100. Ong, Jr. v. Commission on Elections
G.R. No. 105717 December 23, 1992

FACTS:

Petitioner Ong and private respondent Lucero were candidates for the congressional seat of the second
district of Northern Samar during the May 1992 elections. Ong garnered 204 more votes than Lucero.
Subsequently, Lucero filed a petition with the COMELEC for the suspension of the proclamation of Ong
and for a recount of some precincts with prayer for the holding of special elections. Acting on the
petition, the COMELEC en banc ordered Provincial Board of Canvassers not to reconvene and to stop the
canvassing of votes, considering “the pendency of a pre-proclamation controversy before the
COMELEC.” In a subsequent resolution, the COMELEC also granted Lucero’s prayer for a recounting of
votes. Hence, Ong filed petition for certiorari 
 
ISSUE: Whether COMELEC en banc committed grave abuse of discretion in ordering the chairman of
the PBC of Northern Samar not to reconvene the board and in granting a recount of the ballots.
 
HELD: YES
 
(1)   The COMELEC en banc gravely abused its jurisdiction when it ordered a recount in the precincts
because these are matters which should have been first referred to its division.

(2)   The COMELEC indiscriminately issued the order of recount even before the remedies under the law
as stated in Sections 233 and 234 of the Omnibus Election Code have been complied with. Section
233 of the Omnibus Election Code does not authorize a recount. Indeed, nowhere in Section 233 is
there any mention of a recount of ballots. Instead, the remedy under said Section is a referral to other
authentic copies of election returns issued by the Commission. It bears stressing that under Sections
234, 235 and 236 of the Omnibus Election Code, an order for a recount shall be issued only as a last
resort and only if the Commission is satisfied that the identity and integrity of the ballots have not
been violated. 
 
(3)   The allegations of private respondent as contained in his petition for the suspension of the
proclamation of the winner of the second district of Northern Samar evidently involve pre-
proclamation issues, specifically on the preparation of election returns. Consequently, since for
purposes of elections, no pre-proclamation case is allowed against a candidate of the House of
Representatives as stated in Section 15 of Republic Act No. 7166, the COMELEC gravely abused its
discretion when it issued its order suspending the proclamation of the winner of the congressional
seat.
 
(4)   Private respondent’s reliance on the Lim v. COMELEC case, where the SC held that not all pre-
proclamation issues are barred by Section 15 of Republic Act No. 7166, must similarly fail because in
that case, petitioner Lim questioned the illegal composition of the Municipal Board of Canvassers
and the irregular appointment of the Board of Election Inspectors, a pre-proclamation ground which
evidently has no connection with the preparation, transmission, receipt, custody and appreciation of
election returns. As such, we ruled that the illegal composition of the Board of Canvassers under
Section 243 of the Omnibus Election Code may still be raised under Section 15 of Republic Act No.
7166, before either the Board of Canvassers or the COMELEC, in accordance with Section 19 of
Republic Act No. 7166. 

 
QUESTIONS:

2. Do election cases which include pre-proclamation controversies must first be heard and decided
by a division of the Commission? 

YES. It is well-settled that election cases which include pre- proclamation controversies must first be
heard and decided by a division of the Commission.·By now it is well-settled that election cases that
include pre-proclamation controversies must first be heard and decided by a division of the Commission.
The Commission en banc does not have the authority to hear and decide it in the first instance.

2. Does the Commission en banc possess the authority to hear and decide these controversies in the
first instance? 

NO. For purposes of elections, no pre- proclamation case is allowed against, among others, a candidate of
the House of Representatives as stated in Section 15 of Republic Act No. 7166. The COMELEC gravely
abused its discretion when it issued its June 2, 1992 order suspending the proclamation of the winner of
the congressional seat of the second district of Northern Samar and in ordering a recount of precincts 7
and 16 through a resolution dated June 13, 1992.

The COMELEC en banc, though it did not have the power to issue the order dated June 2, 1992, was
correct in classifying the issue at hand as a pre- proclamation controversy.