Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto G.R. No.

. 129040 November 17, 1997 NESTOR C. LIM, petitioner, vs. COMMISSION ON ELECTIONS, HON. FELIMON C. ABELITA, III, in his capacity as Presiding Judge of the Regional Trial Court of Masbate, Branch 44, and SALVADOR O. SANCHEZ, respondents. MENDOZA, J.: This is a petition for certiorari to annul the resolution dated April 17, 1997 of Commission on Election, sustaining the dismissal by the Regional Trial Court (Branch 44) of Masbate of petitioner's counterprotest against private respondent Salvadora O. Sanchez in connection with the mayoralty contest for Uson, Masbate. Petitioner Nestor C. Lim and private respondent Salvadora O. Sanchez were candidates for the office of mayor of the Municipality of Uson, Masbate in the May 8, 1995 elections. Petitioner was credited 7,532 votes against 7,193 votes for private respondent and declared winner by a margin of 339 votes. On May 11, 1995, he was proclaimed the duly-elected mayor of Uson, Masbate by the municipal board of canvassers. On May 22, 1995, private respondent filed an election protest alleging massive and rampant fraud committed by petitioner's camp in 32 polling precincts. Petitioner was required to answer. Summons and copies of the election protest were served on him on June 2, 1995. 1 On June 15, 1995, Atty. Renato M. Cervantes entered his appearance as counsel for petitioner and moved for an extension of 15 days from June 17, 1995 within which to file petitioner's answer. The trial court granted petitioner an extension of ten (10) days from June 16, 1995, i.e., until June 26, 1995, within which to file his answer. On June 22, 1995, petitioner instead filed a motion to dismiss the election protest on the ground that the protest was filed beyond the reglementary period of then (10) days counted from the proclamation of the results of the elections on May 11, 1995. On August 23, 1995, the trial court denied petitioner's motion to dismiss. Private respondent's protest, which was sent by registered mail on May 22, 1995, was held to have been filed on time, considering that May 21, 1995, the last day of the ten-day reglementary period, fell on a Sunday. A copy of the order of denial was received by the petitioner on August 31, 1995. Petitioner filed a motion for reconsideration, but the trial court denied his motion. He then questioned the orders in a petition for certiorari in the Court of Appeals. However, his petition was dismissed by the appellate court for want of jurisdiction. 2 Petitioner also filed a motion for a bill of particulars upon the denial of his motion to dismiss. Again, his motion was denied. Petitioner received a copy of the order of denial on November 8, 1995. On November 13, 1995, petitioner filed his answer with counterprotest by registered mail. The trial court thereafter ordered the parties to name their representatives to the revision committee. The revision of the ballots subject of private respondent's protest having been finished on June 10, 1996, petitioner, on June 13, 1996, moved for the revision of ballots subject of his counterprotest. But the trial court denied his motion in its order of August 7, 1996 on the ground that petitioner's answer with counterprotest was filed out of time. In its order dated September 9, 1996, it denied petitioner's motion for reconsideration. A copy of the order was received by the petitioner on September 21, 1996. Petitioner filed a petition for certiorari in the COMELEC which, in its resolution dated April 17, 1997, dismissed petitioner's petition for lack of merit. Petitioner received a copy of the resolution on the same day. On April 22, 1997, he filed a motion for reconsideration. Realizing that such motion was not allowed under Rule 13, 1(d) of the COMELEC Rules of Procedure, he brought this petition on May 17, 1997. Meantime, on May 8, 1997, the trial court rendered a decision annulling the proclamation of petitioner as the duly-elected mayor of Uson, Masbate and declaring in his place private respondent as winner of the mayoralty contest by a margin of 111 votes. 3 Petitioner contends that the COMELEC gravely abused its discretion in upholding the trial court's order denying his counterprotest. He argues that the Rules of Court, rather than those of the COMELEC, govern the requirements and periods for pleading in election contests cognizable by the Regional Trial Courts. He argues that his pleadings were filed within the periods prescribed by the Rules of Court. He avers that he filed a motion to dismiss the protest on June 22, 1995, within the extension to file an answer granted by the trial court; that he had fifteen (15) days to file an answer from August 31, 1995, the date he received notice of denial of his motion to dismiss; that, in accordance with the Rules of Court, he had up to September 4, 1995 within which to file a motion for a bill of particulars; and that upon denial of his motion, he had five (5) days from receipt of the order on November 8, 1995 within which to file his answer, which he did on November 13, 1995, as provided in Rule 12, 1(b) of the Rules of Court. After due consideration of the petition, to which an answer (comment) was filed by private respondent, we think the petition should be dismissed for lack of merit. The COMELEC correctly found that petitioner's counterprotest was filed out of time. The basic flaw in petitioner's theory is his insistence that because the election protest is cognizable by the Regional Trial Court, the period for filing pleadings is governed by the Rules of Court. The Omnibus Election Code (B.P. No. 881) provides: 254. Procedure in election contests. The Commission shall prescribe the rules to govern the procedure and other matters relating to the election contests pertaining to all national, regional, provincial, and city offices not later than thirty days before such elections. Such rules shall provide a simple and inexpensive procedure for the expeditious disposition of election contest and shall be published in at least two newspapers of general circulation. However, with respect to election contest involving municipal and barangay offices the following rules of procedure shall govern: (a) Notice of the protest contesting the election of a candidate for a municipal or barangay office shall be served upon the candidate by means of a summons at the postal address stated in his certificate of candidacy except when the protestee, without waiting for the summons, has made the court understand that he has been notified of the protest or has filed his answer hereto; (b) The protestee shall answer the protest within five days after receipt of the summons, or, in case there has been no summons from the date of his appearance and in all cases before the commencement of the hearing of the protest or contest. The answer shall deal only with the election in the polling places which are covered by the allegations of the contest; (c) Should the protestee desire to impugn the votes received by the protestant in other polling places, he shall file a counterprotest within the same period fixed for the answer serving a copy thereof upon the protestant by registered mail or by personal delivery of through the sheriff; (d) The protestant shall answer the counter-protest within five days after notices; (e) Within the period of five days counted from the filing of the protest any other candidate for the same office may intervene in
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Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto the case as other contestants and ask for affirmative relief in his favor by a petition in intervention, which shall be considered as another contest, except that it shall be substantiated within the same proceedings. The protestant or protestee shall answer the protest in intervention within five days after notice; (f) If no answer shall be filed to the contest, counter-protest, or to the protest in intervention, within the time limits respectively fixed, a general denial shall be deemed to have been entered; (g) In election contest proceedings, the permanent registry list of voters shall be conclusive in regard to the question as to who has the right to vote in said election. Conformably to these provision, the COMELEC Rules of Procedure likewise provides: PART VI PROVISIONS GOVERNING ELECTION CONTEST AND QUO WARRANTO CASES BEFORE TRIAL COURTS Rule 35 Election Contest Before Courts of General Jurisdiction xxx xxx xxx 7. Answer, Reply, Counter-Protest and Protest in Intervention. (a) Within five (5) days after receipt of notice of the filing of the petition and a copy of the petition, the respondent shall file his answer thereto specifying the nature of his defense, and serve a copy thereof upon the protestant. The answer shall deal only with the election in the precincts which are covered by the allegations of the protest. (b) Should the protestee desire to impugn the votes received by the protestant in other precincts, he shall file a counter-protest within the same period fixed for the filing of the answer, serving a copy thereof upon the protestant by registered mail or by personal delivery. In such a case, the counter-protest shall be verified. (c) The protestant shall answer the counter-protest within five (5) days after notice. (d) Within five (5) days from the filing of the protest, any other candidate for the same office may intervene in the case as other contestants and ask for affirmative relief in his favor by a verified petition in intervention, which shall be substantiated within the same proceeding. The protestant or protestee shall answer the protest-in-intervention within five (5) days after notice. (e) If no answer shall be filed to the protest, counter-protest, or protest-in-intervention within the time limits respectively fixed, a general denial shall be deemed to have been entered. It will thus be seen that Rule 35 of the COMELEC Rules of Procedure merely reproduced the provisions of Art. XXI, 254 of the Omnibus Election Code. There is no basis for petitioner's contention that the COMELEC has no power to prescribe the procedure for election contests filed in the Regional Trial Courts and those filed in the Municipal Trial Courts. 4 The timeliness of petitioner's protest must therefore be determined in accordance with the rule of the COMELEC. As already noted, petitioner received summons and copies of the election protest on June 2, 1995. In accordance with Art XXI, 254(b) of the Omnibus Election Code and Rule 35, 7(a) of the COMELEC Rules of Procedure, his answer should have been filed within five (5) days, i.e., on or before June 7, 1995. But petitioner did not file his answer on or before that date. On June 15, 1995, eight (8) days after the expiration of the period for filing his answer, his counsel filed a motion for an extension of fifteen (15) days within which to file an answer or any responsive pleading to the election protest. His motion was thus filed late. In Maliwanag v. Herrera, 5 the Court held that the provisions of the Rules of Court are suppletory to the provisions of the Election Law. Hence a motion for extension of time to file answer to the election protest should be filed before the expiration of the five-day reglementary period to answer, otherwise a general denial shall be deemed to have been entered against the protestee. 6 Petitioner's answer with counterprotest, which was filed on November 13, 1995, was therefore filed more than five months late. In the case of Maliwanag v. Herrera, 7 the Court rule that a counterprotest is equivalent of a counterclaim in a civil action and, therefore, must be presented as part of the answer within the time the protestee is required to answer the protest. In Kho v. COMELEC, 8 this Court reiterated the longstanding rule 9 that the counterprotest must be filed within the period provided by law, otherwise, the court acquires no jurisdiction to entertain it. Conformably to these cases, we hold that the COMELEC did not commit a grave abuse of discretion in upholding the trial court's refusal to conduct a revision of the ballots subject of petitioner's counterprotest since the answer with counterprotest was clearly filed out of time. The trial court had no jurisdiction to entertain the counterprotest. WHEREFORE, the petition is DISMISSED for lack of merit. SO ORDERED. G.R. No. 109713 April 6, 1995 JOSE M. MERCADO, petitioner, vs. BOARD OF ELECTION SUPERVISORS OF THE MUNICIPALITY OF IBAAN, PROVINCE OF BATANGAS, DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT, CRISANTO P. PANGILINAN and HON. CONRADO R. ANTONA, respondents. DAVIDE, JR., J.: The novel issues presented in this petition may be reduced (1) the legality and constitutionality of Section 24, Resolution No. 2499 of the Commission on Elections (COMELEC) creating, for purposes of the elections in the Sangguniang Kabataan (SK), the Boards of Election Supervisors (BES) and making it the final arbiter of all election protests, and (2) the jurisdiction of Regional Trial Courts over contests involving sangguniang kabataan elections. Petitioner Jose M. Mercado was proclaimed winner in the 4 December 1992 election for chairman of the SK of Barangay Mabalor, Ibaan, Batangas. The proclamation was made by the Board of Election Tellers (BET) acting as the Board of Canvassers, on the basis of its tally which showed Mercado winning by one vote(49 to 48) over his rival, private respondent Crisanto P. Pangilinan. 1 Mercado' s victory was, however, short-lived. Immediately after Mercado's proclamation as the winner by the BET, Pangilinan filed a formal protest with the BES questioning the results of the election. He alleged that the BET Chairman, drinking gin and Coke during the counting, had invalidated some votes without consulting the other board members. The BES ordered .the reopening of the ballot box and the recount of the votes for SK Chairman. The recount reversed the earlier tally to 51 to 49 in favor of Pangilinan, who was thereupon proclaimed the duly elected SK Chairman by the BES, which issued for that purpose its own Certificate of Canvass and Proclamation. Mercado then filed with the Regional Trial Court (RTC) of Batangas City a petition for certiorari and mandamuspraying for the annulment of Pangilinan's proclamation by the BES, and for the issuance of an order to compel the Department of Interior and Local Government (DILG) to recognize him as the duly elected SK Chairman of Barangay Mabalor and to allow him to take his oath of office and discharge his duties as such. In his petition docketed as Civil Case No. 3565, Mercado assailed the jurisdiction of the BES to act on the protest filed by Pangilinan as the ground cited therein was allegedly in the nature of an election protest properly cognizable by the Metropolitan or Municipal Trial Court in accordance with Section 252 of the Omnibus Election Code. He further claimed that, assuming that the BES has jurisdiction over the protest, the grounds raised
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Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto therein were deemed waived by Pangilinan's failure to invoke them at the level of the BET, and that the BES acted with grave abuse of discretion amounting to lack or excess of jurisdiction in denying the petitioner of due process when it ordered the reopening of the ballot box and the recounting of the votes without affording him the opportunity to be heard. In its Order dated 13 January 1993, the RTC dismissed the petition for lack of jurisdiction, The trial court stated that it was not aware of any law by which it could act on the matters raised in Mercado's petition since Resolution No. 2499 of the COMELEC did not vest in the RTC jurisdiction over controversies affecting Sangguniang Kabataan elections; constituting instead the BES, which is under COMELEC jurisdiction , as the final arbiter of all election controversies within its level. Mercado moved for a reconsideration of the dismissal order. He argued that the RTC was competent to act on his petition because (a) one mode of seeking judicial review is through the writ of certiorari which may be issued by the RTC under B.P. Blg. 129;(b) under its Resolutions Nos. 2499 and 2520, the COMELEC was to provide only technical assistance in the conduct of the SK election and therefore could not grant any relief from the action of the BES; moreover, under said Resolution No. 2499, no appeal to a higher administrative level wash allowed from the action of the BES and (c) the principle of exhaustion of administrative remedies did not apply to the case at bar, the jurisdictional and due process issues raised therein being legal in nature. Unconvinced, the RTC, in its Order dated 2 March 1993, denied the motion for reconsideration for lack of merit. It ruled that the reopening of the ballot box for Barangay Mabalor and the recounting of the votes cast therein were perfectly within the ambit of the BES's authority, and that Mercado should have gone to the DILG which has direct control and supervision of the SK elections. Hence, Mercado's present petition under Rule 45 of the Rules of Court for the review on pure questions of law of the Orders of 13 January 1993 and 2 March 1993 of the Batangas RTC. He initially raises the same issues he presented in Civil Case No. 3565 on the competency of the BES to take cognizance of Pangilinan' s protest and his right to due process, and he reiterates the arguments he adduced in his motion for reconsideration regarding the jurisdiction of the RTC over Civil Case No. 3565. However, in refutation of the Solicitor General's defense of the BES jurisdiction as conferred by COMELEC Resolution No. 2499, Mercado, in his Consolidated Reply, now contends that COMELEC Resolution No. 2499 is null and void because: (a) it prescribes a separate set of rules for the election of the SK Chairman different from and inconsistent with that set forth in the Omnibus Election Code, thereby contravening Section 2, Article I of the said Code which explicitly provides that "it shall govern all elections of public officers"; and, (b) it constitutes a total, absolute, and complete abdication by the COMELEC of its constitutionally and statutorily mandated duty to enforce and administer all election laws as provided for in Section 2 (1), Article IX-C of the Constitution; Section 52, Article VIII of the Omnibus Election Code; and Section 2, Chapter 1, Subtitle C, Title I, Book V of the 1987 Administrative Code. The issues presented require a flashback into the history of the SK. It was initially organized by P.D. No. 684 (15 April 1975) as the Kabataang Barangay (KB), a youth organization composed of all barangay residents who were less than 18 years of age which aims to provide its members with the opportunity to express their views and opinions on issues of transcendental importance. Its affairs were administered by a barangay youth chairman together with six barangay youth leaders, who should at least be 15 years of age or over but less than 18 The then Secretary of Local Government and Community Development was authorized to promulgate the implementing rules and regulations. Pursuant to P.D. No. 1191 (1 September 1977), the Pambansang Katipunan ng Kabataang Barangay ng Pilipinas was constituted as "a body corporate" with "the powers and attributes of a corporation" and placed directly under the Office of the President. Its affairs were to be administered by the Executive Committee which was empowered to promulgate rules and regulations governing the KB. This youth organization was recognized in B.P. Blg. 337 (The Local Government Code), 2 which raised the maximum age requirement of the members from 18 to 21. Under R.A. No. 7160 (The Local Government Code of 1991), the Kabataang Barangay was changed to the Sangguniang Kabataan. 3 It remains as a youth organization in every barangay, composed of a chairman and seven members to be elected by the katipunan ng kabataan, and the secretary and the treasurer to be appointed by the SK chairman with the concurrence of the SK. 4 The katipunan ng kabataan is composed of all citizens of the Philippines actually residing in the barangay for at least six months who are 15 but not more than 21 and who are duly registered in the list of the SK or in the official barangay list in the custody of the barangay secretary. 5 The chairman, upon assumption of office, shall automatically become an exofficio member of the sangguniang barangay 6 Under subparagraph (5), paragraph (e) Article 203, Rule XXVII of the Rules and Regulations Implementing the Local Government Code of 1991 7 the conduct and administration of the elections for sangguniang kabataan members shall be governed by the rules promulgated by the COMELEC. Pursuant to such authority and for purposes of the SK election authorized under Section 532 of R.A. No. 7160, the COMELEC promulgated Resolution No. 2499 which closely followed the pattern set in the Constitution of the Kabataang Barangay providing for a Board of Election Supervisors and Board of Election Tellers, with the former having direct general supervision in the conduct of such election and as the final arbiter of all election protests. Article V of Resolution No. 2499 expressly provides: ARTICLE V BOARD OF ELECTION SUPERVISORS AND BOARD OF ELECTION TELLERS Sec. 24. Board of election supervisors. There shall be created aboard of election supervisors (BES) in every city or municipality composed of the following: a) city/municipal local government operations officer as chairman; b) city/municipal election officer as member; and c) city/municipal secretary as member. The board shall have direct general supervision in the conduct of elections for sangguniang kabataan in the barangay and shall act as final arbiter in the resolution of all election protests. No pre-proclamation cases shall be allowed on matters relating to the election of sangguniang kabataan chairman and members. The petitioner contends that COMELEC Resolution No. 2499 is illegal and unconstitutional because it makes the BES the final arbiter of election contests involving the SK in contravention of Section 252 of the Omnibus Election Code which vests in the proper metropolitan or municipal trial court original jurisdiction over such contests and, on a more fundamental ground, in contravention of Section 2, Article IX-C of the Constitution which lodges on. such courts exclusive original jurisdiction over contests involving elective barangay officials. 8 This contention is without merit for it assumes that the SK election is an election involving elective barangay officials within the purview of the aforesaid statutory and constitutional provisions. Section 252 of the Omnibus Election Code and that portion of paragraph (2), Section 2, Article IX-C of the Constitution on the COMELEC's exclusive appellate jurisdiction over contests involving elective barangay officials refer to the elective barangay officials under the pertinent laws in force at the time the Omnibus Election Code was enacted and upon the ratification of the Constitution. That law was B.P. Blg. 337, otherwise known as the Local Government Code, and the elective barangay officials referred to were the punong barangay and the six sangguniang bayan members. 9 They were to be elected by those qualified to exercise the right of suffrage. 10They are also the same officers referred to by the provisions of the Omnibus Election Code of the Philippines 11on election of barangay officials. 12 Metropolitan and municipal trial courts had exclusive original The jurisdiction over contests
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Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto relating to their election . The decisions of these courts were appealable to the Regional Trial Courts. 13 These were the laws on elective barangay officials which the Constitutional Commission took into account when it debated on that portion of paragraph (2), Section 2, Article IX-C of the Constitution relating to contests involving elective barangay officials. During such debates, the following discussions took place: MR. MAAMBONG: Madam President and members of the Committee, I understand from the sponsorship speech that in matters of contests of barangay, municipal and provincial officials, the jurisdiction is all exclusive to the Commission on Elections. Under the present law that we have, cases involving election contests of barangay officials are initiated in the municipal trial court or metropolitan trial court, subject to appeal to the Regional Trial Court whose decision is final. In other words, when it comes to barangay officials, the COMELEC has nothing to do at all with the election contest. In the case, however, of municipal officials, under the present law, the Omnibus Election Code, the original jurisdiction is with the Regional Trial Court, and the decision is appealable to the Commission on Elections. We are suggesting and we would like the Committee to take note of this that while we admit that in all contests, whether it be barangay, municipal, provincial or city officials, the sole authority should be the Commission on Elections that there should be a two-tiered resolution of cases in the sense that when it comes to barangay officials, the municipal trial court or the metropolitan trial court should have jurisdiction first, then it is appealable to the COMELEC. In the case of municipal officials, we are thinking that the regional trial court should have jurisdiction, and then it is appealable to the COMELEC. And in the case of provincial or city officials, the first jurisdiction, which is exclusive, would be the COMELEC. I wonder if the Committee would take that into consideration considering these facts. If we will allow the COMELEC to have executive [sic] jurisdiction over cases involving barangay and municipal officials, one can just imagine the difficulty of the COMELEC, considering that we have thousands of barangay and municipal officials. And as I understand from my private conversation with the Chairman of the COMELEC, the Honorable Ramon Felipe, when it comes to contests involving barangay and municipal officials, the COMELEC may have to send hearing officers; whereas if we will allow the municipal trial court and the metropolitan trial court to have jurisdiction over these cases, they will be given the proper consideration by the court. In the case of contest involving municipal officials, the regional trial court, which is also a court, should have jurisdiction, not the hearing officers of the COMELEC. So we have a two-tiered situation here which we lawyers think would be the best remedy considering again my allusion to the fact that there are so many barangays and municipalities all over the country. That is just my suggestion. I do not know if the Committee could respond to it so that we could perhaps present some amendments. REGALADO: In other words, insofar as the appellate jurisdiction of the Commission on Elections is concerned, it is still preseved despite the fact that it involves barangay, municipal, city or provincial officials. MR. MAAMBONG: MR. MAAMBONG: Yes we would rather insist on that because that is a constitutional mandate. MR. REGALADO: The Commissioner's proposal is only with respect to the original jurisdiction; that is, insofar as election contests involving barangay officials are concerned, the municipal trial courts have the original jurisdiction; whereas in the case of city and provincial officials, the original jurisdiction is vested in the regional trial courts. MR. MAAMBONG: No, Madam President. In the case of provincial and city officials, the original and exclusive jurisdiction should be with the Commission on Elections. MR. REGALADO: In the case of municipal officials, then it will be the regional trial courts which will exercise original jurisdiction. MR. MAAMBONG: That is correctly put, Madam President. Yes, Madam President. MR. REGALADO: Is it his concern that we vest in the municipal trial courts the matter of election contests for barangay officials and in the regional trial courts election contests involving municipal officials thereby requiring a judicial officer to handle these cases, heightened by the fact that the decisions of the municipal trial court or the regional trial court in those election contests involving barangay and municipal officials are final and immediately executory? MR. MAAMBONG: Under the present law, when it comes to appeals from the municipal trial court to the regional trial court, these become final and executory, and we feel that in this regard, the jurisdiction of the COMELEC has been diluted; And we do not like that, Madam President. MR. REGALADO: Thank you.
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MR. REGALADO: But altogether, in the ultimate analysis on appellate jurisdiction, they will all have to go to the Commission on Elections eventually. MR. MAAMBONG: Yes, Madam President. They will still be the sole judge of all election contests. 14 xxx xxx xxx MR. REGALADO: May I ask Commissioner Maambong a question?

xxx xxx xxx

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Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto MR. MAAMBONG: In that case, Madam President, may I proceed to propose this amendment in collaboration and with the advice and consent of Commissioner de los Reyes and Commissioner Rodrigo. THE PRESIDENT: What is the amendment? MA. MAAMBONG: On line 9, Section 2(2), delete the words "Be the sole judge of" and in its instead insert the words EXERCISE EXCLUSIVE JURISDICTION OVER. On line 11, before the word "provincial," insert the word REGIONAL and a comma (,). After the word "provincial" on line 11, insert the word AND. After the word "city," delete the comma (,) and the words "municipal and barangay." After the word "official," place a comma (,) and insert the following: AND OF ALL CONTESTS INVOLVING MUNICIPAL AND BARANGAY OFFICIALS ON APPEAL FROM THE REGIONAL TRIAL COURTS AND FROM THE METROPOLITAN OR MUNICIPAL TRIAL COURTS, RESPECTIVELY . I move for the approval of the amendment, Madam President. THE PRESIDENT: Is this amendment accepted by the Committee? MR. REGALADO: Yes, Madam President. THE PRESIDENT: So, this is an amendment jointly submitted by Commissioners Rodrigo, Maambong and de los Reyes. MR. MAAMBONG: Yes, Madam President. THE PRESIDENT: WHEREFORE, the instant petition is GRANTED The assailed orders of the Regional Trial Court of Batangas City, Branch 4, in Civil Case No. 3565 are hereby REVERSED and SET ASIDE. Civil Case No. 3565 is REINSTATED for further proceedings The Hon. Judge Conrado R. Antona is directed to Is there any objection to the amendment on Section 2(2), line 9 and 11? (Silence) The Chair hears none; the amendment is approved. 16 In the light of the foregoing, it is indisputable that contests involving elections of SK (formerly KB) officials do not fall within Section 252 of the Omnibus Election Code and paragraph 2, Section 2, Article IX-C of the Constitution and that no law in effect prior to the ratification of the Constitution had made the SK chairman an elective barangay official. His being an exofficio member of the sangguniang barangay does not make him one for the law specifically provides who are its elective members, viz., the punong barangay and the seven regular sangguniang barangay members 17 who are elected at large by those who are qualified to exercise the right of suffrage under Article V of the Constitution and who are duly registered voters of the barangay. The Court recognizes the consequences of the quasi-judicial acts performed by the BES pursuant to Section 24 of COMELEC Resolution No. 2499 under the operative fact doctrine; thus, we hold that the Regional Trial Court is competent to review the decision of the BES in election controversies within its level. As correctly stated by the petitioner, it is a basic principle in administrative law that the absence of a provision for the review of an administrative action does not preclude recourse to the courts. It is generally understood that as to administrative agencies exercising quasi-judicial or legislative power there is an underlying power in the courts to scrutinize the acts of such agencies on questions of law and jurisdiction even though no right of review is given by statute. The purpose of judicial review is to keep the administrative agency within its jurisdiction and protect substantial rights of parties affected by its decisions. it is part of the system of checks and balances which restricts the separation of powers and forestalls arbitrary and unjust adjudications. 18 The Court further holds that there was no need for the petitioner to exhaust administrative remedies; firstly, because Section 24 of COMELEC Resolution No. 2499 did not provide for recourse to a higher administrative body; and secondly, the petitioner's cause falls within the exception to the rule in that his petition in Civil Case No. 3565, aside from raising pure questions of law and jurisdiction. 19 also alleges deprivation of due process. 20 proceed with the case with deliberate dispatch, and if necessary, to conduct a recount of the ballots to determine once and for all the true winner in the 4 December 1992 Sangguniang Kabataan Elections in Barangay Mabalor, Ibaan, Batangas. This decision is immediately executory. No pronouncement as to cost. SO ORDERED. G.R. No. 134340 November 25, 1999 LININDING PANGANDAMAN, petitioner, vs. COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF CANVASSERS OF LANAO DEL SUR, MAHED MUTILAN, ALEEM, AMERRODIN SARANGANI and NARRA ABDUL JABBAR JIALIL, respondents. YNARES-SANTIAGO, J.: Recently, this Court emphatically stated that "[U]pholding the sovereignty of the people is what democracy is all about. When the sovereignty of the people expressed thru the ballot is at stake, it is not enough for this Court to make a statement but it should do everything to have that sovereignty obeyed by all. Well done is always better than well said." 1 Corollarily, laws and statutes governing election contests especially the appreciation of ballots must be liberally construed to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. 2 These standards will be the legal matrix within which this controversy will be adjudged. Challenged in this petition for certiorari and prohibition with prayer for temporary restraining order and preliminary injunction is the Omnibus Order of the Commission on Elections (COMELEC) en banc dated July 14, 1998, 3 the dispositive portion of which reads as follows: WHEREFORE, premises considered, special elections for the municipalities, namely Butig Lumbayabague Kapatagan Sultan Dumalondong Maguing Sultan Gumander Masiu Marawi City
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Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto Lumbabayabao shall be held on 18 July 1998. During the pre-trial of the above cases, it was shown and admitted by the parties that total failure of election[s] took place in the following municipalities: 1. Butig 7. Maguing 2. Kapatagan 8. Masiu Ganassi Lumbatan 3. Lumbatan 9. Sultan Dumalondong Malabang Pagayawan 4. Lumba Bayabao 10. Sultan Gumander Marantao Tubaran 5. Lumbayanague 11. Tubaran There shall be machine counting and consolidation of votes for all municipalities except Maguing and those precincts where ballots for manual count will be used. The Education and Information Department, the Acting PES of Lanao del Sur and the Election Officers in these municipalities are hereby directed to cause the immediate publication of this Omnibus Order in their respective municipality ( sic). Schedule for special elections in the municipalities of Madalum and Tugaya is temporarily withheldpending unresolved issues before the Commission. Let the Executive Director for Operation[s] of the Commission execute this order with dispatch. SO ORDERED. The COMELEC's challenged Omnibus Order summarizes the relevant facts of the controversy thus: The instant cases were filed by petitioners praying that the Commission declare [a] failure of elections in their respective municipalities and to hold special elections thereafter. The petitions were reinforced by reports received by the Commission from its field officers and deputies. A pre-trial for all cases in Lanao del Sur involving failure of elections was set and parties, their counsels, and the election officers of concerned municipalities appeared. 6. Madalum 12. Tugaya No precinct in the above towns was able to function on election day. It was also shown and admitted by the parties that in the following municipalities, partial failure of election[s] took place as follows: 1. Ganassi 2. Malabang 3. Marantao 4. Pagayawan 5. Marawi City The PNP, thru the Criminal Investigation Group in Region XII is similarly directed to initiate an investigation on the conduct of Camad Benito in contributing to the failure of election[s] in Kapatagan. In Election Case No. 571, the Municipal Circuit Trial Court of Kapatagan, Lanao del Sur issued an order dated April 30, 1998 ordering the Election Officer of Kapatagan, Lanao del Sur to delete, erase, and cancel all Voters Registration Records with serial numbers 3676001 to 3676500 after finding that said VRRs were received only on December 15, 1998 by EA Camal Calandada from Atty. Muslemin Tahir. And yet, said VRRs appeared to be filled up, used and dated 14 December 1997. A copy of said order was received on 10 May 1998 by the Election Officer. The court having found by implication that said VRRs were irregularly/unlawfully issued, and its order having become final, this Commission in compliance with said court order hereby orders the Election Officer of Kapatagan to delete from the records said VRRs with serial nos. from 36767001 to 3676500. Pursuant to said order, the Law Department is directed to conduct a joint investigation administrative and preliminary investigation for election offenses against Camal Calandada and Muslemin Tahir to determine their criminal and administrative liability and to submit to the Commission its findings and recommendation within sixty (60) days from receipt of this Order. 2. KAPATAGAN allegedly, Camad Benito, husband of mayoralty candidate Bailo Benito, terrorized the Acting Municipal Treasurer Okuo Macaumbas thus preventing the distribution of ballots and other election paraphernalia to the members of the Board of Election Inspectors (BEIs for brevity). Similarly, there were only twenty two (22) public school teachers who were available as BEIs and eighteen (18) of them were disqualified to act due to relationship to candidates within the prohibited degree.

Special elections shall also be held on July 25 , 1998 for the

municipalities of

TOTAL FAILURE OF ELECTIONS

It was found that the cause of failure of election[s] in the twelve municipalities where there was total failure of election[s] as follows: 1. BUTIG armed confrontation of opposing political groups and vehement disagreement on the clustering of precincts. + Acting election officer reported that all election paraphernalia are available except for 200 ballots for precinct 5A.

+ All election paraphernalia are available. 3. LUMBATAN all the members of the different Board of Inspectors are disqualified to act as such by reason of relationship either by consanguinity or affinity, within the prohibited degree. + All election paraphernalia for 39 precincts are intact and available.

Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto 4. LUMBABAYABAO candidates could not agree on the venue of the distribution of the election supplies and there was vehement disagreement on the clustering of precincts. + All election paraphernalia for fifty nine (59) precincts are available. 5. LUMBAYANAGUE there was non-completion of the composition of the BEIs in all precincts because almost all appointed members of [the] BEI are disqualified by reason of relationship either by affinity or consanguinity, within the prohibitive degree. + All election paraphernalia for the 35 precincts are available. 6. MADALUM the twenty (20) appointed teachers to act as members of the different BEIs did not arrive on election day. The issue on the existence of alleged ghost barangays/precincts is not yet resolved by the Commission considering that the alleged ghost precincts are being investigated and an ocular inspection is being made by an investigating team. The issue being factual and the findings determinative of a clean, honest and credible elections, it is the desire of the Commission that the issue on ghost precincts be resolved first before a special election in Madalum shall be scheduled. + All election paraphernalia are available. 7. MAGUING no members of the different Boards of Election Inspectors arrived in all precincts. + There is a need to print new ballots for all forty-nine (49) precincts and other election forms due to the inadvertent non inclusion of a candidate's name in the original ballots. 8. MASIU the Municipal Treasurer did not get the election paraphernalia from the Provincial Treasurer. Neither could the Municipal Treasurer be located on election day. Hence, there was nothing to distribute to the BEIs on election day. Similarly, the Acting Election Officer, EA Cayansalam Benaning, on her admission during the pre-trial hearing on June 25, 1998, arrived only at 7:00 A.M. of election day thus preventing the distribution of election paraphernalia from her office. Some parties claim in fact that she was only seen at noontime of election day while she was in the house of the incumbent mayor of Masiu. + All election paraphernalia for eighty (80) precincts are available. 9. SULTAN DUMALONDONG Municipal Treasurer did not appear on May 10 & 11, 1998 at the office of the Provincial Treasurer to receive the ballots and other election paraphernalia for distribution to the BEIs so there was no election supplies for distribution on election day. + All election paraphernalia for 16 precincts are available. 10. SULTAN GUMANDER no BEIs appeared on election day because most of them are disqualified by law to act as such; the remaining 12 who are not disqualified also did not appear; there was also disagreement on the venue of distribution of election supplies. + All election paraphernalia for 51 precincts are available. 11. TUBARAN non-appearance of all the members of the different BEIs due to intense rivalry among the opposing candidates. + All election supplies are intact and available. 12. TUGAYA widespread terrorism causing intimidation of the electorate to cast their vote. The order of inclusion by the Municipal Court of Tugaya, covering 4,075 voters, will be the subject of a petition to declare its nullity to be filed by the Law Department of the Commission before the Regional Trial Court in Marawi City. It is the desire of the Commission to put to rest the issue on the controversy surrounding the 4,075 voters to allow honest election in this municipality. After the controversy is put to rest, then the special election shall be scheduled. 1. Poblacion 1A2 1A3/1A4 2. Baya 8A 3. Linuk 14A 14A1 14A2 4. Macaguiling 18A 18A1 18A2 There was also failure of election in precinct 1A1 and 17A1 due to ballot box snatching. The ballot box containing official ballots and other election paraphernalia for precinct 17A1, Brgy. Macabao whose polling place was at Ganassi Central Elementary School was snatched allegedly by the incumbent mayor of Ganassi, Maning Diangka and his armed escorts. In precinct 2A in Brgy. Bagoingud, failure of election is declared and special election shall be held considering that the ballot box, official ballots and other election paraphernalia were illegally brought to a private dwelling in said barangay and voting irregularly took place therein despite the fact that the designated polling place was Gadungan Elementary School at Gadungan. This could not take place unless the BEIs assigned in Precinct 2A cooperated in these acts. The acts complained of against Ex-Mayor Maning Diangka shall be referred to the Provincial Prosecutor of Lanao del Sur for possible prosecution. Similarly, the Election Officer of Ganassi is directed to inform the Commission of the identity of the BEIs for precinct 2A for possible prosecution. Considering the charge of Maimona Diangka in SPA 98-404 that Baguio Macapodi, candidate for Vice Mayor of the Ompia Party and his cohort Bai Sa Ganassi terrorized registered voters in Precincts 32, 32A, 32A1, and 32A2 in Barangay Taliogan, Ganassi and that they were allegedly aided by the Barangay Chairman therein, said
7

PARTIAL FAILURE OF ELECTION

In the following municipalities and City of Marawi, there was partial failure of election in the specified precincts due to the following reasons: 1. GANASSI members of the BEIs for nine precincts as herein below enumerated did not appear thus election supplies were not distributed on election day for the following precincts: Barangay Name Precinct No.

Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto acts shall be referred immediately to the office of the Provincial Prosecutor of Lanao del Sur for investigation. During the special election, the members of the Municipal Board of Canvassers of Ganassi are hereby directed to suspend the proclamation of Baguio Macapodi for vice mayor, if winning, until further orders from this Commission. + All election paraphemalia for the nine (9) precincts where there was non-appearance of BEIs are available. The Commission shall cause the printing of ballots and other election forms for precincts 1A1 (Poblacion), 17A1 (Brgy. Macabao), and 2A (Brgy. Bagoingud) for use in the special election since the snatched ballot box were not recovered. 2. MALABANG twenty three (23) precincts failed to function due to shooting incidents. Ballot boxes containing election paraphernalia for five precincts out of these 23 precincts were snatched and never recovered. The following are the precincts that failed to function on election day or whose ballot boxes were snatched: Barangay Name Precinct No. 1. Banday 4A2 2. Betayan 5A/5A1 3. BPS Billage 7A2/7A3 4. Bunkhouse < 8A1 5. Calumbog 11A/11A1 6. Campo Muslim < 12A2 7. Chinatown 13A 8. -do- 13A4 9. Curahab 14A 10. Diamaru 15A 11. -do- 15A1 12. Matampay < 26A 13. Pasir < 29A 14. -do- 29A1 15. -do- 29A2 16. Sumbagarogong 33A 17. -do- 33A1 18. Tacub < 34A 19. Tiongcop 36A 20. -do- 36A1/36A2 21. Tubok 37A2 22. -do- 37A5 23. -do- 37A6 < ballot box snatched + All election paraphernalia for eighteen precincts are intact and available. The Commission will cause the printing of 1,000 ballots and other election forms for five precincts (8A1, 12A2, 26A, 34A). 3. MARANTAO thirty-five (35) precincts failed to function due to terrorism in the area. Out of these 35, eight (8) precincts lost to armed groups their ballot boxes, ballots and other election paraphernalia. These eight are: Name of Barangay Precinct No. 1. Daana Ingud Proper 3A 2. -do- 3A1/3A2 3. Tuca Kialdan 7A 4. -do- 7A1 5. Banga Pantar 22A/22A-1 6. Inudaran Campong 29A 7. -do- 29A-2 8. Mapantao Goo 34A-2 Ballots are to be printed for these precincts by the Commission. Canvassing forms and other paraphernalia shall also be provided. In Precincts No. 12A, 24A and 24A-1, ballots were cast but were not yet counted due to complaints that their integrity had been violated. There being no proof that the integrity of the ballots had been violated in these precincts, the members of the Municipal Board of Canvassers of Marantao are directed to include the same in the canvass. 4. PAGAYAWAN casting of votes was aborted due to widespread terrorism. Fifteen (15) precincts failed to function. + All election paraphernalia are available. However, in precinct 5A/5A1, some commotion took place. Eleven voters out of two hundred and sixty-eight (268) have already cast their votes at the time but only one ballot was found inside the ballot box after the commotion. The Commission deems it proper that the casting of votes by the eleven voters be annulled and a special election shall be conducted therein. 5. Marawi City there was partial failure of election in sixteen precincts (16), namely Name of Barangay Precinct No. 1. Brgy. Banggolo 6A2 2. -do- 6A3 3. Brgy. Lilod Madaya 42A-4 4. Brgy. South Madaya 85A
8

Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto 5. Brgy. Sangkai Dansalan 83A-3 6. Brgy. Raya Madaya I 74A-6 7. Brgy. Bacolod Chico 3A 8. -do- 3A-1 9. -do- 3A-2 10. Brgy. Raya Saduc 76A 11. Brgy. Guimba 38A 12. -do- 38A-1/38A-2 13. Brgy. Lolod Saduc 73A-5 14. Brgy. Bangco 5A-5A-1 15. Brgy. Timbangalan 88A 16. -do- 88A-1/88A-2 due to non-appearance of the BEIs. All election paraphernalia are in order and available except for one ballot box intended for Precinct 5A/5A-1 in Brgy. Banco which is missing or undelivered or without ballots contained therein. The petition for declaration of failure of election in the municipality of Calanogas, Lanao del Sur will be covered by a different resolution. e. Considering the complaints received by the Commission against certain actuations of the Provincial Board of Canvassers, the same shall be replaced with a new Provincial Board of Canvassers whose members shall be designated by the Commission; f. The PNP, thru the Criminal Investigation Group in Region XII and the Prosecution Offices in Lanao del Sur shall actively help in the filing of criminal complaint for election offenses committed during the election period. Petitioner asserts that the COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction in issuing the assailed Omnibus Order 1.] By insisting on holding special elections on July 18 and 25, 1998 more than thirty (30) days after the failure to elect, in certain municipalities, in contravention of the clear and explicit provisions of Section 6 of the Omnibus Election Code; 2.] By failing to declare a total failure of elections in the entire province of Lanao del Sur and to certify the same to the President Considering that under-aged persons succeeded in registering voters, a complaint that is common in many areas in Lanao del Sur, the BEIs are given explicit authority to prevent from voting all those registered voters who are visibly under-aged and shall reflect their names and VRR numbers in the Minutes of Voting for future prosecution. For this purpose, all poll watchers are encouraged to provide themselves with camera and provide indubitable proof of underaged voters. b. Election officers from areas outside of Lanao del Sur shall be tapped to act as Election Officers, while the regular election officers in Lanao del Sur shall perform such duties as directed by the Acting PES; c. The special election in the municipality of Madalum shall be scheduled only after the Investigating Team aforementioned has finished its investigation of alleged ghost precincts therein and the Commission has acted on their findings of facts and recommendation(s); d. The special election in the municipality of Tugaya shall be scheduled after the controversy on the four thousand and seventyfive (4,075) voters shall have been settled; of the Philippines and Congress so that the necessary legislation may be enacted for the holding of a special election; 3.] By ordering only elements of the Armed Forces of the Philippines and the Philippine National Police who are not assigned to the affected areas as members of the Board of Election Inspectors, in contravention of Sections 166, 170, 175 and 176 of the Omnibus Election Code; 4.] By insisting on machine counting despite the proven unreliability and undependability of the counting of votes with use of computer machines. In support of his cause, petitioner insists on a strict compliance with the holding of special elections not later than thirty (30) days after failure to elect pursuant to Section 6 of the Omnibus Election Code which provides that: Sec. 6. Failure of elections. If, on account of force majeure, violence, terrorism, fraud or other analogous causes the election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the voting, or after the voting and during the preparation and transmission of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such postponement or suspension of the election or failure to elect. Petitioner argues that the above-quoted provision is mandatory because of the word "shall". He further asserts that the prescribed time frame actually "delimits" COMELEC's authority to call for a special election and that instead, the power to call for a special election after the 30th day now resides in Congress. The provision invoked can not be construed in the manner as argued by petitioner for it would defeat the purpose and spirit for which the law was enacted. It is a basic precept in statutory construction that a statute should be interpreted in harmony with the Constitution and that the spirit, rather than
9

To avoid the risk of another failure of elections and to encourage

public trust in the process and results of the special elections, the following changes shall be undertaken: a. Only elements of the Armed Forces of the Philippines and the Philippine National Police who are assigned to the affected areas shall serve as members of the Board of Election Inspectors (BEIs). The Acting Provincial Election Supervisor (PES) of Lanao del Sur, Atty. Suharto Ambolodto, shall ensure that said BEIs are given adequate briefing for this task;

Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto the letter of the law determines its construction; for that reason, a statute must be read according to its spirit and intent. 4 Thus, a too literal interpretation of the law that would lead to absurdity prompted this Court to . . . [a]dmonish against a too-literal reading of the law as this is apt to constrict rather than fulfill its purpose and defeat the intention of its authors. That intention is usually found not in "the letter that killeth but in the spirit that vivifieth" . . . 5 Sec. 2 (1) of Article IX (C) of the Constitution gives the COMELEC the broad power to "enforce and administer all laws and regulations relative to the conduct of an election, plebiscite initiative, referendum and recall." There can hardly be any doubt that the text and intent of this constitutional provision is to give COMELEC all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful and credible elections. Pursuant to this intent, this Court has been liberal in defining the parameters of the COMELEC's powers in conducting elections. As stated in the old but nevertheless still very much applicable case of Sumulong v.COMELEC: 6 Politics is a practical matter, and political questions must be dealt with realistically not from the standpoint of pure theory. The Commission on Elections, because of its fact-finding facilities, its contacts with political strategists, and its knowledge derived from actual experience in dealing with political controversies, is in a peculiarly advantageous position to decide complex political questions . . . . There are no ready made formulas for solving public problems. Time and experience are necessary to evolve patterns that will serve the ends of good government. In the matter of the administration of laws relative to the conduct of election . . . we must not by any excessive zeal take away from the Commission on Elections that initiative which by constitutional and legal mandates properly belongs to it. More pointedly, this Court recently stated in Tupay Loong v. COMELEC, et al., 7 that "[O]ur elections are not conducted under laboratory conditions. In running for public offices, candidates do not follow the rules of Emily Post. Too often, COMELEC has to make snap judgments to meet unforeseen circumstances that threaten to subvert the will of our voters. In the process, the actions of COMELEC may not be impeccable, indeed, may even be debatable. We cannot, however, engage in a swivel chair criticism of these actions often taken under very difficult circumstances." The purpose of the governing statutes on the conduct of elections . . . [i]s to protect the integrity of elections to suppress all evils that may violate its purity and defeat the will of the voters. The purity of the elections is one of the most fundamental requisites of popular government. The Commission on Elections, by constitutional mandate, must do everything in its power to secure a fair and honest canvass of the votes cast in the elections. In the performance of its duties, the Commission must be given a considerable latitude in adopting means and methods that will insure the accomplishment of the great objective for which it was created to promote free, orderly, and honest elections. The choice of means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not be interfered with. 8 Guided by the above-quoted pronouncement, the legal compass from which the COMELEC should take its bearings in acting upon election controversies is the principle that "clean elections control the appropriateness of the remedy." 9 In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be later than thirty (30) days after the cessation of the cause of the postponement or suspension of the election or the failure to elect; and, 2.] it should be reasonably close to the date of the election not held, suspended or which resulted in the failure to elect. The first involves a question of fact. The second must be determined in the light of the peculiar circumstances of a case. 10 Thus, the holding of elections within the next few months from the cessation of the cause of the postponement, suspension or failure to elect may still be considered "reasonably close to the date of the election not held." 11 In this case, the COMELEC can hardly be faulted for tardiness. The dates set for the special elections were actually the nearest dates from the time total/partial failure of elections was determined, which date fell on July 14, 1998, the date of promulgation of the challenged Omnibus Order. Needless to state, July 18 and 25, the dates chosen by the COMELEC for the holding of special elections were only a few days away from the time a total/partial failure of elections was declared and, thus, these were "dates reasonably close" thereto, given the prevailing facts herein. Furthermore, it bears stressing that in the exercise of the plenitude of its powers to protect the integrity of elections, the COMELEC should not and must not be straitjacketed by procedural rules in the exercise of its discretion to resolve election disputes. 12 Petitioner's argument that respondent COMELEC gravely abused its discretion by failing to declare a total failure of elections in the entire province of Lanao del Sur and to certify the same to the President and Congress so that the necessary legislation may be enacted for the holding of a special election, likewise fails to persuade. No less than petitioner himself concedes that there was total failure of elections in twelve (12) municipalities and partial failure in eleven (11). Yet he now insists a total failure of elections should have been declared in the entire province of Lanao del Sur. Suffice it to state that the propriety of declaring whether or not there has been a total failure of elections in the entire province of Lanao del Sur is a factual issue which this Court will not delve into considering that the COMELEC, through its deputized officials in the field, is in the best position to assess the actual conditions prevailing in that area. Absent any showing of grave abuse of discretion, the findings of fact of the COMELEC or any administrative agency exercising particular expertise in its field of endeavor, are binding on the Court. 13 There is no cogent reason to depart from the general rule in this case. The insistence of petitioner that the COMELEC violated Sections 166, 170, 175 and 176 of the Omnibus Election Code when it ordered elements of the Armed Forces of the Philippines (AFP) and the Philippine National Police (PNP) who are not assigned to the affected areas as members of the Board of Election Inspectors (BEIs) is likewise unconvincing vis--vis the underlying reason of the public respondent to have an effective and impartial military presence "to avoid the risk of another failure of election." So too must fall the argument that machine counting being allegedly "undependable and unreliable" should not be resorted to as the reasoning of petitioner, by itself, invokes the answer. If the COMELEC saw it fit to order a machine counting of votes in the municipalities enumerated, it could only mean that the decree of R.A. No. 8436 could be implemented without the interference of the claimed "unreliability, inaccuracy and undependability" of the computer sets. The absence of any satisfactory proof to support petitioner's allegations to the contrary reduces them to mere self-serving claims. Be that as it may, we agree with the Solicitor General that the petition has been rendered moot by supervening events. For one, it seeks to enjoin the holding of special elections scheduled for July 18 and 25, 1998. However, petitioner himself admits that special elections were "conducted on a staggered basis" on July 4, 18 and 25, 1998.14 For another, the petition questions the membership of the Board of Election Inspectors for being composed of elements of the Armed Forces of the Philippines and the Philippine National Police as well as the machine counting of the votes when these events have been superseded by the recent issuance of the Certificates Of Canvass Of Votes And Proclamation Of The Winning Candidates For Provincial Offices dated August 7, 1998. 15 In face of these supervening events, the arguments proffered by the petitioner to seek the annulment of the challenged Omnibus Order rings hollow. Verily At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to elections; literal or liberal; the letter or the spirit; the naked provision or its ultimate purpose; legal syllogism or
10

Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voter's obvious choice. In applying election laws, it would be far better to err in The first district 2 covers Tacloban City and the municipalities of Alangalang, Babatngon, Palo, San Miguel, Sta. Fe, Tanauan and Tolosa. The second district 3 is composed of the municipalities of Barugo, Barauen, Capoocan, Carigara, Dagami, Dulag, Jaro, Julita, La Pat, Mayorga, MacArthur, Pastrana, Tabontabon, and Tunga. The third district 4 is composed of the municipalities of Almeria, Biliran, Cabucgayan, Caibiran, Calubian, Culaba, Kawayan, Leyte, Maripipi, Naval, San Isidro, Tabango, and Villaba. The fourth district 5 is composed of Ormoc City and the municipalities of Albuera, Isabel, Kananga, Matagob, Merida, and Palompon. The fifth district 6 is composed of the municipalities of Abuyog, Bate, Baybay, Hilongos, Hindang, Inopacan, Javier, Mahaplag, and Matalom. Third District to five (5) municipalities with a total population of 145,067 as per the 1990 census. To remedy the resulting inequality in the distribution of inhabitants, voters and municipalities in the province of Leyte, respondent COMELEC held consultation meetings with the incumbent representatives of the province and other interested parties. On December 29, 1994, it promulgated Resolution No. 2736 where, among others, it transferred the municipality of Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third District of Leyte. The composition of the First District which includes the municipality of Tolosaand the composition of the Fifth District were not disturbed. After the movement of municipalities, the composition of the five (5) legislative districts appeared as follows:

favor of popular sovereignty than to be right in complex but little understood legalisms. 16

Indeed, to embark upon the costly electoral exercise insisted upon by petitioner in terms of time and taxpayer's money is an unwarranted imposition on the people of the affected areas and is an unacceptable option to the judicial conscience. WHEREFORE, in view of all the foregoing, the petition is DISMISSED for lack of merit. SO ORDERED.

First District: Population Registered Voters

(1990) (1994) 1. Tacloban City, 137,190 81,679 2. Alangalang, 33,375 20,543 3. Babatngon, 17,795 9,929 4. Palo, 38,100 20,816 5. San Miguel, 13,438 8,167 6. Sta. Fe, 12,119 7,497 7. Tanauan and, 38,033 22,357 8. Tolosa; 13,299 7,700 TOTAL 303,349 178,688

Biliran, located in the third district of Leyte , was made its sub-province by

virtue of Republic Act No. 2141 Section 1 of the law spelled out enacted on April 8, 1959. 7 G.R. No. 118702 March 16, 1995 CIRILO ROY G. MONTEJO, petitioner, vs. COMMISSION ON ELECTIONS, respondent. SERGIO A.F. APOSTOL, intervenor. PUNO, J.: More than political fortunes are at stake in the case at bench. Petitioner Cirilo Roy G. Montejo, representing the First District of Leyte, pleads for the annulment of section 1 of Resolution No. 2736 of the COMELEC, redistricting certain municipalities in Leyte, on the ground that it violates the principle of equality of representation. To remedy the alleged inequity, petitioner seeks to transfer the municipality of Tolosa from his district to the Second District of the province. Intervenor Sergio A.F. Apostol, representing the Second District, vigorously opposed the inclusion of Tolosa in his district. We gave due course to the petition considering that, at bottom, it involves the validity of the unprecedented exercise by the COMELEC of the legislative power of redistricting and reapportionment. The province of Leyte with the cities of Tacloban and Ormoc is composed of five (5) legislative districts. 1 Section 1 of the law spelled out the municipalities comprising the subprovince, viz.: "Almeria, Biliran, Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi and Naval and all the territories comprised therein." On January 1, 1992, the Local Government Code took effect. Pursuant to its Section 462, the sub-province of Biliran became a regular province. It provides:

Existing sub-provinces are hereby converted into regular provinces upon approval by a majority of the votes cast in a plebiscite to be
held in the sub-provinces and the original provinces directly affected. The plebiscite shall be conducted by the COMELEC simultaneously with the national elections following the effectivity of this code. The new legislative districts created as a result of such conversion shall continue to be represented in Congress by the duly-elected representatives of the original districts out of which said new provinces or districts were created until their own representatives shall have been elected in the next regular congressional elections and qualified.

Second District: Population Registered Voters

(1990) (1994)

The conversion of Biliran into a regular province was approved by a majority of the votes cast in a plebiscite held on May 11, 1992. As a consequence of the conversion, eight (8) municipalities of the Third District composed the new province of Biliran, i.e., Almeria, Biliran, Cabucgayan, Caibiran, Culaba, Kawayan, Maripipi, and Naval. A further consequence was to reduce the

1. Barugo, 23,817 13,237 2. Barauen, 46,029 23,307 3. Carigara 38,863 22,036 4. Dagami, 25,606 16,519 5. Dulag, 33,020 19,375 6. Jaro, 31,727 17,139 7. Julita, 9,944 6,196 8. La Paz, 14,311 9,003 9. Mayorga, 10,530 5,868 10. Mac Arthur, 13,159 8,628 11. Pastrana, 12,565 7,348 12. Tabontabon, and 7,183 4,419 13. Tunga; 5,413 3,387 TOTAL 272,167 156,462
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Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto

Third District: Population Registered Voters

(1990) (1994)

1. Calubian, 25,968 16,649 2. Leyte, 32,575 16,415 3. San Isidro, 24,442 14,916 4. Tabango, 29,743 15,48 5. Villaba, 32,339 21,227 6. Capoocan, and 23,687 13,595 7. Palompon; 45,745 27,474 TOTAL 214,499 125,763

diminish the difference, he proposed that the municipality of Tolosa with 7,7000 registered voters be transferred from the First to the Second District. The motion was opposed by intervenor, Sergio A.F. Apostol. Respondent Commission denied the motion ruling that: (1) its adjustment of municipalities involved the least disruption of the territorial composition of each district; and (2) said adjustment complied with the constitutional requirement that each legislative district shall comprise, as far as practicable, contiguous, compact and adjacent territory. In this petition, petitioner insists that Section I of Resolution No. 2736 violates the principle of equality of representation ordained in the Constitution. Citing Wesberry v. Sanders, 8 he argues that respondent COMELEC violated "the constitutional precept that as much as practicable one man's vote in a congressional election is to be worth as much as another's." The Solicitor General, in his Comment, concurred with the views of the petitioner. The intervenor, however, opposed the petition on two (2) grounds: (1) COMELEC has no jurisdiction to promulgate Resolution No. 2736; and (2) assuming it has jurisdiction, said Resolution is in accord with the Constitution. Respondent COMELEC filed its own Comment alleging that it acted within the parameters of the Constitution. We find section 1 of Resolution No. 2736 void. While the petition at bench presents a significant issue, our first inquiry will relate to the constitutional power of the respondent COMELEC 9 to transfer municipalities from one legislative district to another legislative district in the province of Leyte. The basic powers of respondent COMELEC, as enforcer and administrator of our election laws, are spelled out in black and white in section 2(c), Article IX of the Constitution. Rightly, respondent COMELEC does not invoke this provision but relies on the Ordinance appended to the 1987 Constitution as the source of itspower of redistricting which is traditionally regarded as part of the power to make laws. The Ordinance is entitled "Apportioning the Seats of the House of Representatives of the Congress of the Philippines to the Different Legislative Districts in Provinces and Cities and the Metropolitan Manila Area." Its substantive sections state: Sec. 1. For purposes of the election of Members of the House of Representatives of the First Congress of the Philippines under the Constitution proposed by the 1986 Constitutional Commission and subsequent elections, and until otherwise provided by law, the Members thereof shall be elected from legislative districts apportioned among the provinces, cities, and the Metropolitan Manila Area as follows: xxx xxx xxx Sec. 2. The Commission on Elections is hereby empowered to make minor adjustments of the reapportionment herein made.

Sec. 3. Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in paragraph (3), Section 5 of Article VI of the Constitution. The number of Members apportioned to the province out of which such new province was created or where the city, whose population has so increased, is geographically located shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred and twenty days before the election. (Emphasis supplied) The Ordinance was made necessary because Proclamation No. 3 10 of President Corazon C. Aquino, ordaining the Provisional Constitution of the Republic of the Philippines, abolished the Batasang Pambansa. 11 She then exercised legislative powers under the Provisional Constitution. 12 The Ordinance was the principal handiwork of then Commissioner Hilario G. Davide, Jr., 13 now a distinguished member of this Court. The records reveal that the Constitutional Commission had to resolve several prejudicial issues before authorizing the first congressional elections under the 1987 Constitution. Among the vital issues were: whether the members of the House of Representatives would be elected by district or by province; who shall undertake the apportionment of the legislative districts; and, how the apportionment should be made. 14Commissioner Davide, Jr. offered three (3) options for the Commission to consider: (1) allow President Aquino to do the apportionment by law; (2) empower the COMELEC to make the apportionment; or (3) let the Commission exercise the power by way of an Ordinance appended to the Constitution. 15 The different dimensions of the options were discussed by Commissioners Davide, Felicitas S. Aquino and Blas F. Ople. We quote the debates inextenso, viz.: 16 xxx xxx xxx MR. PADILLA. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Jamir). Commissioner Padilla is recognized. MR. PADILLA. I think I have filed a very simple motion by way of amendment by substitution and this was, I believe, a prior or a proposed amendment. Also, the chairman of the Committee on the Legislative said that he was proposing a vote first by the Chamber on the concept of whether the election is by province and cities on the one hand, or by legislative districts on the other. So I propose this simple formulation which reads: "FOR THE FIRST ELECTION
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Fourth District: Population Registered Voters

(1990) (1994) 1. Ormoc City, 129,456 75,140 2. Albuera, 32,395 17,493 3. Isabel, 33,389 21,889 4. Kananga, 36,288 19,873 5. Matagob, 15,474 9,407 6. Merida, and 22,345 12,474 TOTAL 269,347 155,995

Fifth District: Population Registered Voters

(1990) (1994)

1. Abuyog, 47,265 28,682 2. Bato, 28,197 116,13 3. Baybay, 82,281 47,923 4. Hilongos, 48,617 26,871 5. Hindang, 16,272 9,659 6. Inopacan, 16,894 10,401 7. Javier, 18,658 11,713 8. Mahaplag, and 22,673 13,616 9. Matalom 28,291 16,247 TOTAL 309,148 181,242 Petitioner Montejo filed a motion for reconsideration calling the attention of respondent COMELEC, among others, to the inequitable distribution of inhabitants and voters between the First and Second Districts. He alleged that the First District has 178,688 registered voters while the Second District has 156,462 registered voters or a difference of 22,226 registered voters. To

Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto UNDER THIS CONSTITUTION THE LEGISLATIVE DISTRICTS SHALL BE APPORTIONED BY THE COMMISSION ON ELECTIONS." I hope the chairman will accept the proposed amendment. SUSPENSION OF SESSION MR. DAVIDE. The effect is, more or less, the same insofar as the apportionment is concerned, but the Bernas-Sarmiento et al. proposal would also provide for a mandate for the apportionment later, meaning after the first election, which will in effect embody what the Commission had approved, reading as follows: "Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section." So, Mr. Presiding Officer, may I request for a suspension of the session, so that all the proponents can work together. THE PRESIDING OFFICER (Mr. Jamir). The session is suspended. And what will follow will be the allocation of seats to Metropolitan Manila Area, to the provinces and to the cities, without indicating the municipalities comprising each of the districts. Then, under Section 2, we will mandate the COMELEC to make the actual apportionment on the basis of the number of seats provided for and allocated to each province by us. MS. AQUINO. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is recognized. MS. AQUINO. I have to object to the provision which will give mandate to COMELEC to do the redistricting. Redistricting is vitally linked to the baneful practices of cutting up areas or spheres of influence; in other words, gerrymandering. This Commission, being a nonpartisan, a nonpolitical deliberative body, is in the best possible situation under the circumstances to undertake that responsibility. We are not wanting in expertise and in time because in the first place, the Committee on the Legislative has prepared the report on the basis of the recommendation of the COMELEC. MR. OPLE. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Jamir). Commissioner Ople is recognized. MR. OPLE. I would like to support the position taken by Commissioner Aquino in this respect. We know that the reapportionment of provinces and cities for the purpose of redistricting is generally inherent in the constituent power or in the legislative power. And I would feel very uncertain about delegating this to a quasi-judicial body even if it is one of the constitutional offices created under this Constitution. We have the assurance of Commissioner Davide, as chairman of the Committee on the Legislative, that even given the very short time remaining in the life of this Commission, there is no reason why we cannot complete the work of reapportionment on the basis of the COMELEC plan which the committee has already thoroughly studied and which remains available to the Constitutional Commission. LAW, THE MEMBERS OF THE HOUSE OF REPRESENTATIVES SHALL BE ELECTED FROM LEGISLATIVE DISTRICTS APPORTIONED AMONG THE PROVINCES, CITIES AND THE METROPOLITAN MANILA AREA AS FOLLOWS." So, I support the position taken by Commissioner Aquino, Mr. Presiding Officer. I think, it is the safest, the most reasonable, and the most workable approach that is available to this Commission. THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner Davide say: MR. DAVIDE. The issue now is whether this body will make the apportionment itself or whether we will leave it to the COMELEC. So, there arises, therefore, a prejudicial question for the body to decide. I would propose that the Commission should now decide what body should make the apportionment. Should it be the Commission or should it be the COMELEC? And the Committee on the Legislative will act accordingly on the basis of the decision. MR. BENGZON. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Jamir). Commissioner Bengzon is recognized. MR. BENGZON. Apropos of that, I would like to inform the body that I believe the Committee on the Legislative has precisely worked on this matter and they are ready with a list of apportionment. They have, in fact, apportioned the whole country into various districts based on the recommendation of the COMELEC. So they are ready with the list and if this body would wish to apportion the whole country by district itself, then I believe we have the time to do it because the Committee on the Legislative is ready with that particular report which need only to be appended to the Constitution. So if this body is ready to accept the work of the Committee on the Legislative we would have no problem. I just would like to give that information so that the people here would be guided accordingly when they vote. MR. RODRIGO. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Jamir) Commissioner Rodrigo is recognized. MR. RODRIGO. I just would like to ask Commissioner Davide some questions. THE PRESIDING OFFICER (Mr. Jamir). Commissioner Davide may yield if he so desires. MR. DAVIDE. Gladly.
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It was 3:33 p.m.

RESUMPTION OF SESSION

At 3:40 p.m., the session was resumed .

THE PRESIDING OFFICER (Mr. Jamir). The session is resumed. Commissioner Davide is recognized. MR. DAVIDE. Mr. Presiding Officer, as a compromise, I wonder if the Commission will allow this. We will just delete the proposed subparagraph (4) and all the capitalized words in paragraph (5). So that in paragraph (5), what would be left would only be the following: "Within three years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section." But we shall have an ordinance appended to the new Constitution indicating specifically the following: "FOR PURPOSES OF THE ELECTION OF MEMBERS OF THE HOUSE OF REPRESENTATIVES IN THE FIRST CONGRESSIONAL ELECTION IMMEDIATELY FOLLOWING THE RATIFICATION OF THIS CONSTITUTION PROPOSED BY THE 1986 CONSTITUTIONAL COMMISSION AND SUBSEQUENT ELECTIONS AND UNTIL OTHERWISE PROVIDED BY

Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto MR. RODRIGO. Will this apportionment which we are considering apply only to the first election after the enactment of the Constitution? MR. DAVIDE. On the basis of the Padilla proposal, it will be for the first election; on the basis of the Sarmiento proposal, it will only apply to the first election. MR. RODRIGO. And after that, Congress will have the power to reapportion. MR. DAVIDE. Yes. MR. RODRIGO. So, if we attach this to the Constitution the reapportionment based on the COMELEC study and between the approval of the Constitution and the first election the COMELEC no longer has the power to change that even a bit. xxx xxx xxx THE PRESIDING OFFICER (Mr. Jamir) Commissioner Regalado is recognized. MR. REGALADO. May I address a clarificatory question to Commissioner Davide? THE PRESIDING OFFICER (Mr. Jamir). Gentleman will please proceed. MR. REGALADO. On the basis of the Commissioner's proposed apportionment and considering the fact that there will be a corresponding reduction to 183 seats, would there be instances representation of under non-representation? MR. DAVIDE. None at all, Mr. Presiding Officer. I can assure the Commission that there will be no case of inequitable distribution. It will come out to be one for every 350 to 400,000 inhabitants. MR. REGALADO. And that would be within the standard that we refer. MR. DAVIDE. Yes, Mr. Presiding Officer. MR. REGALADO. Thank you. THE PRESIDING OFFICER (Mr. Jamir). What does Commissioner Sarmiento say? MR. SARMIENTO. I am voting that this Commission do the reapportionment.
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MR. RAMA. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Jamir). The Floor Leader is recognized. MR. RAMA. The parliamentary situation is that there was a motion by Commissioner Sarmiento to mandate COMELEC to do the redistricting. This was also almost the same motion by Commissioner Padilla and I think we have had some kind of meeting of minds. On the other hand, there seems to be a prejudicial question, an amendment to the amendment as suggested by Commissioner Aquino, that instead of the COMELEC, it should be this Commission that shall make the redistricting. So may I ask Commissioner Aquino, if she insists on that idea, to please formulate it into a motion so we can vote on that first as an amendment to the amendment. THE PRESIDING OFFICER (Mr. Jamir).Commissioner Aquino is recognized. MS . AQUINO. The motion is for this Commission to undertake the apportionment of the legislative districts instead of the proposal that COMELEC be given the mandate to undertake the responsibility. xxx xxx xxx MR. SARMIENTO. May I be clarified, Mr. Presiding Officer. Is it the motion or the proposed amendment? THE PRESIDING OFFICER (Mr. Jamir). The proposed amendment. MR. SARMIENTO. May we move for the approval of this proposed amendment which we substitute for paragraphs 4 and 5. MR. DAVIDE. May I request that it should be treated merely as a motion to be followed by a deletion of paragraph 4 because that should not really appear as a paragraph in Section 5; otherwise, it will appear very ugly in the Constitution where we mandate a Commission that will become functus officioto have the authority. As a matter of fact, we cannot exercise that authority until after the ratification of the new Constitution.

MR. SARMIENTO. It is accepted, Mr. Presiding Officer. So, may I move for the approval of this proposed amendment. MS. AQUINO. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Jamir). Commissioner Aquino is recognized. MS. AQUINO. Would that require a two-thirds vote or a simple plurality to adopt that motion? THE PRESIDING OFFICER (Mr. Jamir). That will require a twothirds vote. MS. AQUINO. Thank you. Mr. Presiding Officer. MR. SARMIENTO. May I restate the motion, Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Jamir) The Gentleman may proceed. MR. SARMIENTO. May I move that this Commission do the reapportionment legislative districts. MS. AQUINO. Mr. Presiding Officer. THE PRESIDING OFFICER (Mr. Jamir). What is the pleasure of Commissioner Aquino? MS. AQUINO. May I be clarified again on the motion. Is Commissioner Sarmiento, therefore, adopting my motion? Would it not be right for him to move that the COMELEC be mandated? MR. SARMIENTO. No, we accepted the amendment. It is already the Commission that will be mandated. MS. AQUINO. So, the Gentlemen has accepted the amendment the amendment. Thank you.

Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto VOTING THE PRESIDING OFFICER (Mr. Jamir). Let us proceed to vote. As many as are in favor, please raise their hand. (Several Members raised their hand.) As many as are against, please raise their hand. (No Member raised his hand.) The results show 30 votes in favor and none against; the motion is approved. Clearly then, the Constitutional Commission denied to the COMELEC the major power of legislative apportionment as it itself exercised the power. Section 2 of the Ordinance only empowered the COMELEC "to make minoradjustments of the reapportionment herein made." The meaning of the phrase "minor adjustments was again clarified in the debates 17 of the Commission, viz.: xxx xxx xxx MR. GUINGONA. This is just clarificatory, Mr. Presiding Officer. In Section 2, the Commission on Elections is empowered to make minor adjustments on the apportionment made here. MR. DAVIDE. Yes, Mr. Presiding Officer. MR. GUINGONA. We have not set any time limit for this. MR. DAVIDE. We should not set a time limit unless during the period of amendments a proposal is made. The authority conferred MR. DE CASTRO. Thank you. I was about to ask the committee the meaning of minor adjustment. Can it be possible that one municipality in a district be transferred to another district and call it a minor adjustment ? MR. DAVIDE. That cannot be done, Mr. Presiding Officer. Minor, promulgated section 1 of its Resolution No. 2736 transferring the municipality of Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third District of Leyte. It may well be that the conversion of Biliran from a sub-province to a regular province brought about an imbalance in the distribution of voters and inhabitants in the five (5) legislative districts of the province of Leyte. This imbalance, depending on its degree, could devalue a citizen's vote in violation of the equal protection clause of the Constitution. Be that as it may, it is not proper at this time for petitioner to raise this issue using the case at bench as his legal vehicle. The issue involves a problem of reapportionment of legislative districts and petitioner's remedy lies with Congress. Section 5(4), Article VI of the Constitution categorically gives Congress the power to reapportion, thus: "Within three (3) years following the return of every census, the Congress shall make a reapportionment of legislative districts based on the standards provided in this section." In Macias v. COMELEC,18 we ruled that the validity of a legislative apportionment is a justiciable question. But while this Court can strike down an unconstitutional reapportionment, it cannot itself make the reapportionment as petitioner would want us to do by directing respondent COMELEC to transfer the municipality of Tolosa from the First District to the Second District of the province of Leyte. IN VIEW WHEREOF, section 1 of Resolution No. 2736 insofar as it transferred the municipality of Capoocan of the Second District and the municipality of Palompon of the Fourth District to the Third District of the province of Leyte, is annulled and set aside. We also deny the Petition praying for the transfer of the municipality of Tolosafrom the First District to the Second District of the province of Leyte. No costs. SO ORDERED. G.R. Nos. 107435-36 December 11, 1992 SAIDAMEN B. PAGARUNGAN, petitioner, vs. COMMISSION ON ELECTIONS and MAHID MUTILAN, respondents. DAVIDE, JR., J.: In this special civil action for certiorari under Rule 65 of the Rules of Court, in relation to Section 7, Article IX-A of the 1987 Constitution, petitioner would have this Court set aside and annul, for having been issued with grave abuse of discretion or lack of jurisdiction, (a) the 18 September 1992 1 joint Resolution of the First Division of respondent Commission on Election (COMELEC) in SPC No. 92-349, SPC No. 92-378-379, SPC No. 92-387, and SPC NO. 92-391, and (b) the 23 October 1992 2 en banc Resolution of the
15

meaning, that there should be no change in the allocations per district. However, it may happen that we have forgotten a municipality in between which is still in the territory of one assigned district, or there may be an error in the correct name of a particular municipality because of changes made by the interim
Batasang Pambansa and the Regular Batasang Pambansa. There were many batas pambansa enacted by both the interim and the Regular Batasang Pambansa changing the names of municipalities. MR. DE CASTRO. So, the minor adjustment may be made only if one of the municipalities is not mentioned in the ordinance appended to, and it will be up for the COMELEC now to adjust or to put such municipality to a certain district. MR. DAVIDE. Yes, Mr. Presiding Officer. For instance, we may not have the data regarding a division of a municipality by the interim Batasang Pambansa or the Regular Batasang Pambansa into two municipalities, meaning, a mother municipality and the new municipality, but still actually these are within the geographical district area. MR. DE CASTRO. So the minor adjustment which the COMELEC

cannot do is that, if, for example, my municipality is in the First District of Laguna, they cannot put that in any other district .
MR. DAVIDE. That is not even a minor correction. It is a substantive one. MR. DE CASTRO. Thank you.

would be on minor corrections or amendments, meaning to say, for instance, that we may have forgotten an intervening municipality in the enumeration, which ought to be included in one district. That we shall consider a minor amendment.
MR. GUINGONA. Thank you. xxx xxx xxx THE PRESIDING OFFICER (Mr. Romulo). Commissioner de Castro is recognized.

Consistent with the limits of its power to make minor adjustments, Section 3 of the Ordinance did not also give the respondent COMELEC any authority to transfer municipalities from one legislative district to another district. The power granted by Section 3 to the respondent COMELEC is to adjust the number of members (not municipalities) "apportioned to the province out of which such new province was created. . . ." Prescinding from these premises, we hold that respondent COMELEC committed grave abuse of discretion amounting to lack of jurisdiction when it

Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto COMELEC affirming, in SPC No. 92-349 3 and SPC No. 92-387, 4 the abovementioned 18 September 1992 Resolution of the First Division. In the Resolution of 29 October 1992, this Court required the respondents to Comment on the Petition within a non-extendible period of ten (10) days, and issued a temporary restraining order directing the respondent COMELEC to cease and desist from enforcing the questioned resolutions, more particularly the portion thereof which directs the Provincial Board of Canvassers to reconvene and prepare a new set of certificate of canvass on the basis of the results taken from the COMELEC's copies of the Election Returns for the uncontested 5 Provincial Elective Positions. On 6 November 1992, private respondent filed an Urgent Motion To Lift the Temporary Restraining Order to which, upon order of this Court, the petitioner filed a Comment. On 9 November 1992, respondent COMELEC, through the Office of the Solicitor General, filed its Comment to the petition. Although this Court granted the petitioner's motion to file a Reply to the public respondent's Comment on or before 22 November 1992, none has been filed as of the writing of this Decision. Considering the allegations and issues raised and the arguments adduced by the parties in the petition and the subsequent pleadings indicated above, this Court hereby resolves to consider the private respondent's Urgent Motion To Lift the Temporary Restraining Order as his Comment and Answer, and the Comment of respondent COMELEC as its Answer thereto; and to decide this case on its merits. These facts are not disputed. Petitioner and the private respondent were candidates for the Office of the Provincial Governor of Lanao del Sur in the synchronized elections of 11 May 1992. During the canvassing of the certificates of canvass for provincial offices by the Provincial Board of Canvassers (PBC) of Lanao de Sur, 6 private respondent objected to the inclusion of Certificate of Canvass (COC) No. 667635 of the Municipality of Madamba, Lanao del Sur; petitioner opposed this move. Consequently, both parties submitted their evidence to the PBC. Private respondent relied on the Investigation Report of Atty. Clarita Callar, the joint affidavit of Attys. Abdul Aguam, Marohombsar and Datu Dacula and other affidavits. Petitioner then formally offered documentary exhibits consisting of the Minutes of the PBC proceedings of 6 June 1992, and the joint affidavit, also dated 6 June 1992, of Alexander Dimaporo and Pendatun Panguinaguina members of the Municipal Board of Canvassers (MBC) of Madamba to support his opposition to the objection. 7 On 20 June 1992, the PBC handed down a unanimous ruling 8 the dispositive portion of which reads: The Provincial Board of Canvassers of Lanao del Sur, unanimously decided not to include in the count/canvass the Certificate of Canvass of Madamba said having ( sic) been substituted and spurious (sic). This ruling is based primarily on the Investigation Report of Atty. Clarita Callar who was directed by the Chairman of the PBC to investigate the Madamba incident. So far as is relevant to this case, two (2) appeals assailing the said ruling were interposed before the COMELEC. The first is an appeal of the herein petitioner, which was docketed as SPC No. 92-387, while the second is the appeal of Pala Dipatuan, which was docketed as SPC No. 92-391. Petitioner does not deny the allegation of the private respondent that he (petitioner) enclosed, in his appeal, all his documentary evidence and affidavits of his witnesses and that all the records and evidence submitted to the PBC were elevated to the COMELEC. 9 Instead of assigning SPC No. 92-387 and the related cases to a Division pursuant to pertinent provisions of its Rules, 10 the COMELEC en banc took cognizance thereof and set the case for hearing on 6 August 1992. At the said hearing, the parties, through their respective counsel, upon suggestion of the COMELEC en banc, agreed to submit their respective Position Papers. 11 On 8 August 1992, petitioner's counsel submitted a Consolidated Position Paper in SPC No. 92-349 and SPC No. 92-387 raising the following issues: A. WHETHER OR NOT THE PROCEEDINGS OF THE MBC LEADING TO THE PREPARATION AND SUBMISSION OF COC NO. 667635 AND THE SUPPORTING SOV ARE VALID AND BINDING? B. WHETHER THE PROCEEDINGS OF THE MBC COULD BE LEGALLY SET ASIDE OR ANNULED AFTER IT BECAME FUNCTUS OFFICIO? C. WHETHER PBC IS CLOTHE (sic) WITH AUTHORITY TO EXCLUDE MOTU PROPIO COC NO. 667635 AND THE SUPPORTING SOV? D. WHETHER THE PERSONAL PERCEPTION OR BELIEF OF THE MEMBERS OF THE PBC COULD BE A VALID BASIS FOR THE EXCLUSION MOTU PROPIO OF COC NO. 667635 BY THE PBC? E. WHETHER THE PBC ABUSED ITS DISCRETION IN EXCLUDING COC NO. 667635 AND THE SUPPORTING SOV? F. WHETHER THE COMMISSION EN BANC CAN EXERCISE ORIGINAL JURISDICTION OVER THE APPEALS, BY PASSING ( sic) THE COMELEC DIVISIONS IN VIOLATION OF ART. IX (C) SECTION 3 OF THE CONSTITUTION. G. WHETHER THE COMMISSION ACTED PROPERLY IN OPENING AND EXAMINING THE ELECTION RETURNS OF MADAMBA WITHOUT THE PRESENCE OF THE CONCERNED PARTIES? 12 and praying for the following reliefs: WHEREFORE, it is most respectfully prayed of the Honorable Commission En Banc that: 1. The REPORT/RULING ON THE MADAMBA CASE dated June 20, 1992 excluding COC No. 667635 of Madamba from the canvass be set aside, revoked or annuled; 2. The PBC be ordered to reconvene and to include in the canvass COC No. 667635 of Madamba; 3. SPC No. 92-349 filed by petitioners Dimaporo and Mutilan be dismissed for clear lack of merit and legal basis; 4. The (sic) above case be assigned to a DIVISION in conformity with the constitution and the duly promulgated ( sic) Rules of Procedure (sic) of the Commission; 5. That if true that the election returns are being inspected privately, absent the parties, that the same be discontinued immediately. 13 Taking heed of Our Resolution of 6 August 1992 in Sarmiento vs. Commission on Elections, et al, (G.R. No. 105628) and companion cases, the COMELEC raffled off SPC No. 92-387; as a result thereof the First Division got the case. It consolidated this case with SPC NO. 92-349, SPC Nos. 92-378/379 and SPC No. 92-391.
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Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto On 18 September 1992, the First Division promulgated a joint Resolution in these consolidated cases affirming the PBC's ruling which excluded COC No. 667635 of Madamba from the canvass and ordering the PBC to prepare a new set of certificate of canvass based on the COMELEC copies of the Election Returns for the uncontested (later changed to contested) Provincial Elective Positions. With respect to the latter, it made the following observations and conclusions: The above attendant circumstances, tend to establish the fact that the COC and SOV have not been regularly prepared, as such the same could not be made as a sound basis indetermining the true and genuine results of the votes casts ( sic) for the municipal and provincial candidates in Madama. In view of the foregoing, the physical examination of the Comelec's copy of the determine its genuineness and authenticity. That such an examination would not be in disregard of the summary nature of a pre-proclamation proceeding nor (sic) the provisions of Sec. 15 of RA 7166 with respect to the Congressional race as the COMELEC has been given ample power "to decide all questions affecting election returns including the verification of the number of votes received by opposing candidates in the election returns as compared to the statement of votes in order that the true will of the people is known." If there is clear evidence of discrepancy between the number of votes for a precinct as compared to the number of votes the candidates actually received during the counting at the precinct, it is the duty of the COMELEC to see to it that the matter should be verified from the election returns as a pre-proclamation controversy. It cannot wash its hands by asking the candidates to bring the matter to the electoral tribunal as an election protest. (Villamoyo vs. Comelec, G.R. No. 79646-67, November 13, 1987). Since the Commission has the power to direct that only genuine election returns and certificates of canvass be considered (Ong vs. Comelec, 22 SCRA 241), in the exercise of its constitutional power, the Commission may look, into the election returns of the Municipality of Madamba, Lanao del Sur. This is the most speedy and inexpensive remedy to settle this controversy. 14 The decretal portion of the Resolution reads: WHEREFORE, premises considered, this Division hereby RESOLVES the following: 1. AFFIRMS the Proclamation of the wining Mayoralty candidate in the Municipality of Madama, Lanao de Sur; 2. DIRECTS the Provincial Board of Canvassers to reconvene and prepare a new set of certificate of canvass on the basis of the results taken from the COMELEC's copy of the Election Returns for the uncontested Provincial Elective Positions; 3. DIRECTS the Provincial Board to Consolidated the COC of Madamba with all other uncontested COC's and thereafter Proclaim the Winning Candidates as the records warrant. SO ORDERED.
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representative, the above-named Municipal Treasurer and DECS Supervisor returned to the MSU gymnasium bring ( sic) with them another ballot box with Serial No. 8903946 whom ( sic) they attempted to mix with the other ballot boxes but which the military security placed apart to identify it from those previously received. Looking at the ballot box with Serial No. CE 9223696 previously submitted on June 5, 1992, it is very evident that it was really forcibly opened as shown by the destroyed cover and ballot ( sic) box with Serial No. CE 8903946 was brought to the MSU gymnasium only in the morning of June 6, 1992 which the Receiving Committee refused to receive under proper receipt since ballot (sic) box with Serial No. 9223696 was already submitted for the municipality of Madama. 16 This decision was not unanimous. In his dissent thereto, Commissioner Magdara Dimaampao pointed out that there was a violation of due process when the First Division, contrary to Section 2, Rule 27 of the COMELEC Rules of Procedure which requires summary hearing after due notice, accepted the Report of Atty. Callar without conducting any hearing to afford the petitioner the right or opportunity to confront the latter; Dimaampao further stressed that the election returns should be resorted to only if it is established through a hearing that the COC in question is indeed spurious. On 23 September 1992, petitioner filed under the caption of SPC No. 92-349 and SPC No. 91-387 only, a Motion For Reconsideration Ex Abundante Cautela 17 Alleging therein: 1. THAT THE FIRST DIVISION COMMITTED A VERY GRAVE ERROR WHEN IT RELIED SOLELY AND COMPLETELY ON THE "REPORT" OF A CERTAIN ATTY. CALLAR, AND THE SUBSEQUENT "RULING" OF THE PROVINCIAL BOARD OF CANVASSERS OF LANAO DEL SUR, WITHOUT EVEN VERIFYING FOR ITSELF THE WHO, THE HOW, THE WHY AND THE WHEN OF THE NUMEROUS INCIDENTS CONCERNING THE CONTROVERSY OF MADAMBA INVOLVING THE PREPARATION OF THE MUNICIPAL CERTIFICATE OF CANVASS OF MADAMBA, WHICH IT RULED TO BE DIRSREGARDED DESPITE ITS HAVING NO DEFECT WHATSOEVER; 2. THAT THE FIRST DIVISION WAS LIKEWISE IN GRAVE ERROR WHEN IT CASUALLY RESORTED TO THE ALLEGED RESULTS OF THE "COMELEC COPY" OF THE ELECTION RETURNS OF ALL PRECINCTS OF MADAMBA, BY EXAMINING AND INSPECTING ONLY ONE "SELECTED" COPY OF ITS CHOICE AND WITHOUT EVEN NOTIFYING AND ALLOWING THE PARTIES TO PARTICIPATE IN THE OPENING AND EXAMINATION THEREOF, ALL IN CLEAR CONTRAVENTION OF EXISTING JURISPRUDENCE AND IN VIOLATION OF THE EXPRESS PROVISION OF LAW; and
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The Callar report, as quoted in the Resolution, reads as follows: At about 10:30 p.m. June 5, 1992, Alexander Dimaporo Municipal Treasurer and Pendatun Punginagina, DECS Supervisor, both of Madamba, Lanao del Sur, in the company of 5 military personnels (sic) whom the affiants were able to identify as elements of the 39th IB because of the presence of M/Sgt. Purisima and Sgt. Amatorio whom they personally know to belong to the said IB, entered the gymnasium looking for Sgt. Francisco of the 5th IB on the pretext that their Commanding Officer has an order for him and since, the 5th IB is under the operational control of the 39th IB, the group was able to enter the said gymnasium and once inside, the Municipal Treasurer, Alexander Dimaporo went directly to where the ballot boxes are (sic) piled and forcibly opened one of them destroying the lid in the process which later turned out to be the ballot box with Serial No. CE 9223696 containing the Statement of Votes and Certificate of Canvass of the municipality of Madamba, and then and there in the presence of said military personnels (sic) of the 39th IB said Municipal Treasurer took out the Statement of Votes from the forcibly opened ballot box and handed it to one of his soldier companion ( sic) and when some of the watchers present tried to stop him, the soldiers with him got mad and one of then (sic) even hit one of the watchers while the others pointed their guns at the other watchers and party representatives to include (sic) the elements of the 15th IB which action almost ended in a shootout except for the intervention to (sic) the Commanding Officer of the 5th IB as well as of the Platoon leader 2nd Lt. Fernando Canes, who feared a ( sic) shootout may result in the hitting of innocent civilians who were inside the gymnasium at that time. But when the group however sensed that the elements of the 5th IB were ready to fight them by deploying themselves the group left hurriedly but only after bringing with them all the contents of the forcibly opened ballot box. The following day, May (June) 6, 1992 at about 9:30 a.m. per affidavit executed by Ibrahim Max Digadong, Nacionalist

Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto 3. THAT THE FIRST DIVISION GRIEVOUSLY ERRED WHEN IT DIRECTED THE PROCLAMATION OF WINNING CANDIDATES, WITHOUT AWAITING THE RESULTS OF OTHER MUNICIPALITIES WHICH ARE STILL PENDING BEFORE THE OTHER COMELEC DIVISION. 18 Pursuant to the Constitution and the COMELEC Rules of Procedure, the motion for reconsideration had to be resolved by the COMELEC en banc. 19 Before the latter could resolve the same, however, the petitioner filed on 21 October 1992 a Motion for the disqualification of Commissioner Haydee B. Yorac on the ground that for the past several weeks, she has been projected to the public as the Chairperson of the National Unification Committee (NUC); she has also presented herself to the public as such, that this public position or office is constitutionally incompatible with her present position as a Commissioner of the COMELEC. Hence, pursuant to Section 2, Article IX-A of the present Constitution which provided, inter alia, that "No member of a Constitutional Commission shall, during his tenure, hold any other office or employment," she is deemed resigned from her present position. On 23 October 1992, the COMELEC en banc promulgated the challenged Resolution 20 affirming the 18 September 1992 Resolution of the First Division and finding the errors imputed to the latter to be without merit. As to the report of Atty. Callar, the Acting Provincial Election Supervisor of North Cotabato, the COMELEC held that the same was prepared in the performance of official duty, per instruction of COMELEC Regional Director Teresita Llaban, and is therefore presumed to have been performed with regularity. The COMELEC further stated that it "would be so absurd for this Commission to have its field personnel perform their task and at the same time question their actuation." Citing Cauton vs. Comelec, 21 it asserted that if the Commission is convinced that the election returns in the hands of the board of canvassers do not constitute the proper basis in ascertaining the true result of the elections, it is duty bound to take the necessary steps in order that the proper basis for the canvass is made available; it would be absurd to say that the Commission has a legal duty to perform that duty. Thus, when the First Division issued the challenged Resolution, it merely performed its mandated duty under the Constitution to enforce and administer laws and regulations relative to the conduct of elections. As to the First Division's ruling on the matter of the COMELEC copies of the election returns being made the basis for the preparation of a new COC, the COMELEC en banc stated: When the First Division resorted to the Comelec's copy of the Election Returns of Madamba as contained in the ballot box No. CE-92 375697, its object was to determine the result of the elections based on the official election returns. "An order to this effect does not affect the right to vote or the validity of any vote cast, so that it is perfectly within the power of the COMMISSION to issue such an order in the exercise of its exclusive power to administer and enforce the laws relative to the conduct of elections. (Cauton vs. Comelec 19 SCRA 911) To sustain the petitioner-appellant in the present Motion for Reconsideration is to deny this Commission the power to retrieve the Comelec copies of the election returns in order that the true number of votes cast for a candidate may be known and thus permit a canvass on the basis of Certificate of Canvass that are reportedly falsified. Petitioner-Appellant contents that the basic election document provided for by law and the Comelec's own promulgated resolutions in proclaiming the winning candidates for provincial offices is none other than the Municipal Certificate of Canvass, accompanied by the supporting Statement of Votes. He stresses that in the case of Madamba, both the COC and the SOV are clean and untampered in (sic) their faces, thus should not have been excluded. This Commission is well aware of the foregoing rule. Had there been no reported incident of ballot box switching, this Commission would have completed relied on the alleged clean and untampered COC as allegedly reported by the Municipal Board of Madamba. But the mere fact that the same appears to be clean an ( sic) untampered is not also proof enough that they are genuine, bearing in mind the report of Atty. Callar which herein petitionerappellant also failed to prove that it is fabricated and or baseless. Technicalities, which are not conductive to free, orderly and honest elections, but in (sic) the contrary may defeat the will of the sovereign people as expressed in their votes, should not be allowed to hamper the Commission on Elections in the performance of its duties (Cauton vs. Comelec, 19 SCRA 911). "The choice of means taken by the Commission on Elections, unless they are clearly illegal or constitute grave abuse of discretion, should not be interferred with. (Sumulong vs. Comelec, 73 Phil. 288). Perusal of the resolution of the First Division as to the proclamation of the winning candidates show ( sic) that is it not absolute as shown by the phrase "as the records warrant." So much so that if there are still pending cases before the other division (sic) regarding the election of provincial elective positions in Lanao del Sur, then it follows that it cannot proclaim any winning candidates yet for definitely, the records do not warrant the same.22 Petitioner then filed the instant petition raising therein the following issues: (1) the total lack or absence of due process in the proceedings before the COMELEC's First Division when it, inter alia, resolved the appeal from the ruling of the PBC of Lanao del Sur without any semblance of a hearing to assess the factual findings of said PBC and merely on the basis of the report of Atty. Callar who was never interviewed, questioned or interrogated by the COMELEC; rejected and disregarded the clean, clear, authentic, duly signed and executed Municipal Certificate of Canvass for Madamba; and ruled to use and avail of selected copies of the election returns without any notice to and without the presence and participation of the parties; (2) the total disregard by the COMELEC en banc of its own Rules when it resolved the motion for reconsideration without any hearing as mandated by Section 6, Rule 19 of the COMELEC Rules of Procedure; and (3) the participation and vote of Commissioner Yorac who, as petitioner claims, is no longer a member of the Commission. We find no merit in the petition. No violation of due process, amounting to grave abuse of discretion or lack of jurisdiction, was committed by the COMELEC's First Division when it promulgated the Resolution of 18 September 1992 without any hearing, and by the COMELEC en banc when it likewise resolved petitioner's motion for reconsideration without a hearing. Before the subject cases were raffled off to the First Division, the parties, upon the suggestion of the COMELECen banc, agreed to submit the appeals on the basis of their position papers. Petitioner extensively discussed in his position paper the issues raised and the evidence to support the latter's thesis that the COC in question is clean, clear, authentic and duly signed and executed. Thus, the factual issue raised at that point was whether the questioned COC is spurious or not a question which must be resolved on the basis of the evidence adduced by the parties before the PBC pursuant to paragraph (e), Section 9, Rule 27 of the COMELEC Rules of Procedure, which provides: (e) At the hearing, no new evidence shall be received, unless for good reasons shown, it is clearly and convincingly established that the applicant was deprived of due process by the board of canvassers. and paragraph (h), Section 20 of R.A. No. 7166,
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which provides:

(h) On the basis of the records and evidence elevated to it by the board, the Commission shall decide summarily the appeal within seven (7) days from receipt of said records and evidence. Any appeal brought before the Commission on the ruling of the board, without the accomplished forms and the evidence appended thereto, shall be summarily dismissed. The decision of the Commission shall be executory after the lapse of seven (7) days from receipt thereof by the losing party.
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Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto The records do not disclose that the petitioner had moved before either the COMELEC en banc or its First Division that he be allowed to present new evidence on the ground that the was deprived of due process by the PBC. In any case, he could not have done that because the PBC had in fact allowed him to present his evidence. That he was not allowed to cross-examine Atty. Callar did not in any way whittle down the validity of the proceedings of the PBC for paragraph (e), Section 8, Rule 27 of the COMELEC Rules of Procedure provides that: (e) Where evidence is to be offered, reception thereof shall be done summarily. Oral testimonies shall be dispensed with and the parties shall be required to present their affidavits or counteraffidavits within twenty-four (24) hours from the presentation of the written objection. The evidence adduced shall form part of the proceedings of the Board. The PBC faithfully complied with the mandate of this provision; moreover, the parties voluntarily and unconditionally observed the same by submitting their evidence which included the affidavits of their respective witnesses. It is precisely for this reason, and his awareness of the legal consequences thereof, that the petitioner carefully avoided characterizing the Callar report as "hearsay". Nowhere in his pleadings are We to find any objections to the Callar report on that ground. Petitioner purposely omitted such argument because he knew only too well that the Callar report is an official act of an officer of the COMELEC made after an investigation conducted in the performance of a lawful official duty. It thus enjoys the presumption of regularity. 24 Besides, by the parties' compliance with the aforesaid paragraph (e), Section 8, Rule 27 of the COMELEC Rules of Procedure, petitioner was estopped from objecting to the admission in evidence of the Callar report, in effect leaving to the PBC and then the First Division of the COMELEC on appeal the determination of the factual issue concerning the validity of the COC in question. More importantly, the Callar report falls under Section 44, Rule 130 of the Rules of Court which provides for an exception to the hearsay rule. 25 The Rules of Court applies suppletorily to proceedings before the COMELEC. 26 By agreeing to submit his position paper for the resolution of the appeal, petitioner effectively agreed to dispense with with the formality of a hearing, the purpose or objective of which was better subserved by the submission of the position papers where the parties could incorporate all that they wanted to place on record; a formal hearing may not adequately achieve such purpose because of the time constraints, the unpreparedness of counsel, the emotions of the moment and the distracting atmosphere. Petitioner, however, tries to mock the solemnity and depreciate the value of this agreement by stating that the proceedings before the COMELEC en banc at the first instance were void because of Section 3, Article IX-C of the Constitution and Our ruling in Sarmiento vs. COMELEC and companion cases. 27 Such reasoning does not impress Us. The binding force of the agreement was not tainted by the fact that it was made before the COMELEC en banc before such body acquired jurisdiction over the cases. In the first place, petitioner voluntarily submitted his Position Paper in accordance with the agreement he freely entered into. Secondly, he did not question the validity of the agreement in the issues he raised and in the reliefs he prayed for therein. More pertinently, he only asks that the cases "be assigned to a DIVISION in conformity with the constitution and the duly promulgated ( sic) Rules of Procedure (sic) of the Commission." 28 This is a clear message of the irreversibility of his adherence to the agreement to submit the appeal for resolution on the basis of the evidence and records elevated by the PBC and the position papers submitted by the parties. In the third place, nowhere in his petition did the petitioner allege that his position paper was deemed withdrawn or at least rendered ineffective by the subsequent assignment of the appeal to the Division. He knew all along that the agreement would be binding until the resolution of the appeal, even if it would, following his view, be thereafter assigned to a Division to set the appeal for hearing. It could have already properly and validly resolved it, as in fact it did, on the basis of the evidence and the records elevated to it by the PBC, 29and the position paper of the parties. The First Division affirmed the PBC's ruling that the questioned COC is spurious, and found for itself that the attendant circumstances in this case "tend to established the fact that the COC and the SOV have not been regularly prepared, as such the same could not be made as a sound basis in determining the true and genuine results of the votes casts ( sic) for the municipal and provincial candidates in Madamba." 30 These are findings on a factual issue which this Court accords the highest respect. We have said, through then Chief Justice Concepcion in Lucman vs. Dimaporo , 31 that this Court cannot review rulings or findings of fact of the Commission on Elections as there is no reason to believe that the framers of the Constitution intended to place the Commission, created and explicitly made independent by the Constitution itself, on a lower level than ordinary administrative organs, the findings of which are not even disturbed by courts of justice except when there is absolutely no evidence or no substantial evidence to support the same. These exceptions, just as any other in respect to the rule on conclusiveness of findings of fact of the Court of Appeals, 32 which may equally apply to the findings of fact of the COMELEC, are not present in this case. Having thus made such findings, it was well within the power of the Commission, through the First Division, to determine what must be done to ascertain the elusive "true and genuine results of the votes casts ( sic) for provincial and municipal candidates in Madama." The documents which could logically be the basis therefor are any of the other available copies of the COC with the supporting Statement of Votes (SOV), and any other available copy of the election returns from all precincts in Madamba. The COC for President, Vice-President, Senators, Members of the House of Representatives and elective provincial officials are prepared in seven (7) copies to be distributed in the manner provided for in Section 27 of R.A. No. 7166. In the election of returns are prepared in six (6) copies to be distributed in the manner provided for in Section 27(a) of the said law. In every case, the COMELEC is provided with a copy. The COMELEC's judgment on this matter cannot be overturned by this Court unless it is clearly tainted with grave abuse of discretion. The COMELEC's First Division opted to resort directly to its copies of the election returns and ordered the whimsical, capricious or arbitrary. It is reasonable and impressed with wisdom. Between another copy of the COC and the election returns, the latter could provided a more accurate basis for the determination of the true and genuine results of the votes cast. This is obvious because the former constitutes a mere summary of the latter an errors, deliberate or otherwise, may be committed in entering therein the figures obtained from the election returns. Besides, among the copies of the election returns readily available to the Commission, those intended specifically for it are the least likely to be tampered with after leaving the hands of the board of election inspectors. Thus, the wisdom of using such copies is beyond question. Petitioner, however, insists that the First Division should have complied with Section 235 of the Omnibus Election Code which provides for the use of "the other copies of said election returns and, if necessary, the copy inside the ballot box." In short, he wants that all other copies of the election returns should be considered. This betrays an incorrect interpretation of the section. This quoted portion of the section he stresses clearly shows that even one of the copies that inside the ballot box is sufficient. Indeed, said section does not require that all the other copies of the election returns be taken into account and compared with one another before one of them, determined to be authentic, may be used or included in the canvass. If this is the interpretation to be followed, then the law would have required a condition which could be easily rendered impossible to comply with; in effect, the law would be practically meaningless or useless. As stated earlier, the election returns are to be prepared in six (6) copies. The first copy is the municipal, city or district board of canvassers' copy. If, for one reason or another, any of the remaining five (5) copies could not be obtained by the board, following the interpretation and logic of petitioner, the procedure laid down in Section 235 may no longer be availed of. Report to the COMELEC copies of the election returns of all the precincts of Madamba did not, however, foreclose the right of the petitioner to object, at the appropriate time, to the inclusion in the canvass of the PBC of any of said returns pursuant to the pertinent paragraphs of Section 243 of the Omnibus Election code. Neither did the COMELEC en banc commit any abuse of discretion, much less grave abuse thereof amounting to lack or excess of jurisdiction, when it promulgated its Resolution of 23 October 1992 affirming the Resolution of 18 September 1992 of the first Division. As earlier adverted to, the agreement to submit position papers dispensed with the formal hearing of the motion for reconsideration.

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Compiled by: Hernandez, Frauline Camille R. Election Laws set 1 Atty. Eliza Yamamoto As to the disqualification of Commissioner Yorac, the records do not show that the COMELEC, to which the motion for disqualification is addressed, has resolved it. Moreover, the motion itself reveals that neither a copy thereof nor a notice of its hearing was furnished Commissioner Yorac, the party sought to be disqualified. For this alone, the motion is nothing more than a mere scrap of paper. Under the COMELEC Rules of Procedure, notice of a motion shall be served by the movant to all parties concerned at least three (3) days before the hearing thereof, together with a copy of a motion. The notice shall be directed to the parties concerned and shall state the time and place of the hearing of the motion. No motion shall be acted upon by the Commission or a Division without proof of service of notice except when it is satisfied that the rights of the adverse party are not affected. 33 Finally, petitioner did not implead Commissioner Yorac as a respondent in this case. As the respondent in the motion for disqualification, she is an indispensable party whose personality in that respect is distinct and separate from that of the COMELEC of which she is a Member. Hence, the issue against her cannot be resolved in this case without infringing due process the Constitutional guaranty which petitioner himself insists upon, for his own benefit, from the beginning to the end of his petition. WHEREFORE, for lack of merit, the instant Petition is DISMISSED with costs against petitioner. The Temporary Restraining Order issued on 29 October 1992 is hereby lifted. This Decision is immediately executory. SO ORDERED.

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