G.R. No. 158359. March 23, 2004.* ABDULLAH D. DIMAPORO, petitioner, vs.

HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and ABDULLAH S. MANGOTARA, respondents. Election Law; Equal Protection Clause; Equal protection simply means that all persons and things similarly situated must be treated alike both as to the rights conferred and the liabilities imposed. We are not prepared to conclude that the assailed Resolutions of the HRET offend the equal protection clause. Equal protection simply means that all persons and things similarly situated must be treated alike both as to the rights conferred and the liabilities imposed. It follows that the existence of a valid and substantial distinction justifies divergent treatment. Same; Election Contests; Electoral Tribunals; The grant of a motion for technical examination is subject to the sound discretion of the Electoral Tribunal; The Constitution confers full authority on the electoral tribunals of the House of Representatives and the Senate as the sole judges of all contests relating to the election, returns and qualifications of their respective members.It should be emphasized that the grant of a motion for technical examination is subject to the sound discretion of the HRET. In this case, the Tribunal deemed it useful in the conduct of the revision proceedings to grant Mangotaras motion for technical examination. Conversely, it found Dimaporos motion unpersuasive and accordingly denied the same. In so doing, the HRET merely acted within the bounds of its Constitutionally-granted jurisdiction. After all, the Constitution confers full authority on the electoral tribunals of the House of Representatives and the Senate as the sole judges of all contests relating to the election, returns, and qualifications of their respective members. Such jurisdiction is original and exclusive. [Dimaporo vs. House of Representatives Electoral Tribunal, 426 SCRA 226(2004)] DECISION TINGA, J.: Before the Court is a petition brought by Congressman Abdullah D. Dimaporo (Dimaporo), as petitioner, seeking to nullify the twin Resolutions1 of the House of Representatives Electoral Tribunal (HRET) which denied his Motion for Technical Evaluation of the Thumbmarks and Signatures Affixed in the Voters Registration Records and Voting Records 2 and Motion for Reconsideration of Resolution No. 03-408 Denying the Motion for Technical Examination of Voting Records .3 A brief factual background is in order. On July 20, 2001, Dimaporo was proclaimed a Member of the House of Representatives, representing the 2ndLegislative District of Lanao del Norte. Pursuant to the 1998 Rules of the HRET (HRET Rules),4 congressional candidate Abdullah S. Mangotara (Mangotara) filed on July 30, 2001 a Petition of Protest (Ad Cautelam),5 seeking, among others, the technical examination of the signatures and thumbmarks appearing on the Voters Registration Records (VRRs)/Book of Voters and the List of Voters with Voting Records in all the protested precincts of the municipality of Sultan Naga Dimaporo (SND). Mangotara alleged that the massive substitution of voters and other electoral irregularities perpetrated by Dimaporos supporters will be uncovered and proven by the revision of ballots and the comparison between the signatures and thumbmarks appearing in the VRRs/Book of Voters and those appearing in the List of Voters with Voting Records used on election day or those affixed at the back of the VRRs. From this and other premises, he concluded that he is the duly-elected representative of the 2nd District of Lanao del Norte. On October 10, 2001, Dimaporo filed an Answer with Counter-Protest6 impugning all the ballots and votes counted in favor of Mangotara in all precincts of all the 15 municipalities of Lanao del Norte, except SND. He alleged that irregularities and electoral frauds, consisting of massive substitute voting, i.e., persons other than the registered voters voted in favor of Mangotara, were committed in the counter-protested precincts. Moreover, pairs or groups of ballots written by only one person were counted in favor of Mangotara. Accordingly, Dimaporo prayed for, among

others, the technical examination of the signatures and thumbmarks of the voters who allegedly voted in the questioned precincts. Before revision proceedings were conducted, Mangotara filed an Urgent Motion for Technical Examination7 dated May 3, 2002, praying for the technical examination of the signatures and thumbmarks appearing on the Registration Records/Book of Voters and List of Voters with Voting Records in all the precincts of SND. According to him, the fire that gutted all the ballot boxes used in SND made the revision of ballots in the said municipality physically impossible. Hence, technical examination was the only means by which the HRET can determine Mangotaras claim of massive substitute voting. Mangotara also argued that the Commission on Elections (Comelec) had started retrieving the election records needed for the forthcoming Sangguniang Kabataan (SK) elections. There was no assurance that the integrity of these records will be preserved. Thus, there was an urgent need for technical examination of the election records. Moreover, Mangotara averred that the results of the technical examination are determinative of the final resolution of the election protest in view of the fact that Dimaporos presumptive lead over him was only 5,487 votes. Dimaporo filed an Opposition to the Motion for Technical Examination on May 24, 2002. Noting that "the Tribunal cannot evaluate the questioned ballots because there are no ballots but only election documents to consider," the HRET granted Mangotaras motion and permitted the latter "to engage an expert to assist him in the prosecution of his case." 8 Accordingly, the National Bureau of Investigation conducted the technical examination of the signatures and thumbmarks of the voters of SND affixed in their VRRs and other voting records. After the completion of the revision of ballots, Dimaporo filed on November 11, 2002 a Motion for Technical Examination of the Thumbmarks and Signatures Affixed in the Voters Registration Records and Voting Records 9of: (a) 198 revised pilot counter-protested precincts; (b) 47 pilot counter-protested precincts; and (c) 36 precincts of the municipality of Tangcal (Tangcal). The motion was filed allegedly in order to substantiate Dimaporos claims that pairs or groups of ballots were written by only one person and that there was massive substitute voting in the counter-protested precincts. Dimaporo further alleged that, upon opening 47 ballot boxes of the 47 counter-protested precincts, it was discovered that the boxes did not contain any ballot. Hence, no revision could be made. Likewise, the ballots for 36 precincts of Tangcal could no longer be revised because the ballot boxes had been burned. Citing these circumstances as akin to those mentioned by Mangotara in his motion, Dimaporo moved that his request for technical examination be granted. The HRET denied Dimaporos motion in its assailed Resolution No. 03-408.10 The Tribunal declared that Dimaporos allegations that pairs or groups of ballots were written by only one person and that substitute voting took place in the first and second groups of precincts are matters which are "well within the judicial determination of the Tribunal and which may be determined without resort to technical examination."11 As regards the 36 precincts of Tangcal, the HRET found it physically impossible to conduct a technical examination of the signatures and thumbmarks of voters as found in the VRRs and Book of Voters due to the destruction of the pertinent election documents. In its questioned Resolution No. 03-166,12 the Tribunal denied Dimaporos Motion for Reconsideration of Resolution No. 03-408 Denying the Motion for Technical Examination of Voting Records. 13 Hence, Dimaporo filed the instant Petition for Certiorari and/or Mandamus with Prayer for the Issuance of a Writ of Preliminary Injunction on June 8, 2003.14 Dimaporo claims that the HRET deprived him of equal protection when the latter denied his motion for technical examination even as it had previously granted Mangotaras similar motion. According to him, his motion should have been granted because there is no valid distinction between the counter-protested precincts and the precincts in SND subject of Mangotaras motion since, in both instances, the ballots were no longer available for revision. He also asserts that the denial of his motion deprived him of procedural due process or the right to present scientific evidence to show the massive substitute voting committed in the counter-protested precincts. On July 21, 2003, Mangotara filed his Comment15 averring that the petition is an obvious dilatory tactic to render the election protest moot and academic by the expiration of the term involved. He points out that there are substantial

differences between his own motion for technical examination and that of petitioner. For instance, in SND, all the ballot boxes were destroyed by fire, whereas those of the 47 counter-protested precincts were not. In fact, except for the ballots themselves, the election documents and other paraphernalia remained intact. Another difference is that Mangotara specifically contested16 the election results in SND on the ground of substitution of voters, whereas massive substitute voting was allegedly a mere general averment in Dimaporos counter-protest. Moreover, Mangotara moved for technical examination even before the revision proceedings, whereas Dimaporos motion was anchored on Rule 4217 of the HRET Rules and was filed only after the revision of ballots. As regards the counterprotested precincts of Tangcal, Mangotara avers that destruction of the ballot boxes is not among the grounds for technical examination under Rule 42 of the HRET Rules, the provision cited by Dimaporo. Mangotara further claims that the former cannot ask for technical examination under Rule 42 of the HRET Rules in order to substantiate allegations of substitute voting because this was not cited as a ground for objection in the course of the revision of ballots. Rule 42 of the HRET Rules provides that the party moving for technical examination must specify the objections made in the course of the revision of ballots which the movant intends to substantiate with the results of the technical examination. Furthermore, Dimaporo was not deprived of his right to present evidence because the questioned Resolution No. 03-408 itself states that all election documents "are still subject to the scrutiny of the Tribunal during the appreciation of evidence." Hence, at the appropriate time and in accordance with HRET Rules, Dimaporo will be given an opportunity to present his evidence. The Solicitor General filed a Comment18 on July 29, 2003 arguing that there is a distinction between the motions filed by Mangotara and Dimaporo. Whereas Mangotaras motion was filed before the completion of the reviefore the completion of the reviro was filed after the revision of ballots. The HRET acted within the confines of its discretion. Hence, there is no need for this Court to exercise its extraordinary power of certiorari. Dimaporo filed a Consolidated Reply to the Comments of the Public and Private Respondent 19 on August 12, 2003. Thereafter, the parties filed their respective Memoranda20 as required by the Court. We are not prepared to conclude that the assailed Resolutions of the HRET offend the equal protection clause. Equal protection simply means that all persons and things similarly situated must be treated alike both as to the rights conferred and the liabilities imposed.21 It follows that the existence of a valid and substantial distinction justifies divergent treatment. It should be mentioned that Dimaporo does not question the HRET Rules but only the Tribunals exercise or implementation thereof as manifested in the questioned Resolutions. According to him, since the ballot boxes subject of his petition and that of Mangotara were both unavailable for revision, his motion, like Mangotaras, should be granted. This argument is rather simplistic. Purposely or not, it fails to take into account the distinctions extant in Mangotaras protest vis--vis Dimaporos counter-protest which validate the grant of Mangotaras motion and the denial of Dimaporos. First. The election results in SND were the sole subjects of Mangotaras protest. The opposite is true with regard to Dimaporos counter-protest as he contested the election results in all municipalities but SND. Significantly, the results of the technical examination of the election records of SND are determinative of the final outcome of the election protest against Dimaporo. The same cannot be said of the precincts subject of Dimaporos motion. The election results show that Mangotara won over Dimaporo in 10 out of 15 municipalities of Lanao del Norte. Dimaporo prevailed only in five (5) municipalities, including SND. His winning margin in four (4) of these municipalities was small, but in SND, Dimaporo obtained 22,358 votes as opposed to Mangotaras 477 votes. This means that Dimaporo won by a margin of 21,881 votes over Mangotara in SND. Further, the election results show that Mangotara was credited with zero (0) vote in 73 out of 130 precincts of the said municipality. That Dimaporo won the elections by a margin of 5,487 votes establishes the fact that the results of the election in SND handed the victory to him.22

The technical examination of the election records of SND and the consequent determination of the true will of the electorate therein, therefore, serves the interest not only of the parties but also of the constituency of the 2 ndDistrict of Lanao del Norte. Second. Mangotara filed a motion for technical examination before the start of the revision proceedings on the ground that the destruction of the ballot boxes of all precincts of SND rendered revision physically impossible. The urgency of technical examination was due to the impending SK elections and the resultant need for the Comelec to retrieve the election records of the municipality. On the other hand, Dimaporo filed a motion for technical examination after the revision of ballots. No circumstance of necessity or urgency was averred in the motion. Third. The HRET was informed and it is not disputed that the ballot boxes and other election documents pertaining to Tangcal were totally gutted by fire making technical examination an impossibility.23 On the other hand, although the ballot boxes of the precincts of SND were also destroyed by fire, the other election records, e.g., Lists of Voters with Voting Records and Voters Affidavits contained in the Book of Voters, were not. Thus, technical examination of the available election records could still be had. Fourth. With regard to the other counter-protested precincts, the HRET correctly pointed out that Dimaporos claims that pairs or groups of ballots were written by only one person and that massive substitute voting took place may be resolved by the Tribunal without need for technical examination. Although no ballots were found inside the ballot boxes of 47 counter-protested precincts, the election returns and tally boards were still intact. These documents may yet be considered by the Tribunal in its resolution of the election protest. Thus, technical examination was uncalled for as it was not absolutely necessary. It should be emphasized that the grant of a motion for technical examination is subject to the sound discretion of the HRET.24 In this case, the Tribunal deemed it useful in the conduct of the revision proceedings to grant Mangotaras motion for technical examination. Conversely, it found Dimaporos motion unpersuasive and accordingly denied the same. In so doing, the HRET merely acted within the bounds of its Constitutionally-granted jurisdiction.25 After all, the Constitution confers full authority on the electoral tribunals of the House of Representatives and the Senate as the sole judges of all contests relating to the election, returns, and qualifications of their respective members. Such jurisdiction is original and exclusive.26 Anent Dimaporos contention that the assailed Resolutions denied him the right to procedural due process and to present evidence to substantiate his claim of massive substitute voting committed in the counter-protested precincts, suffice it to state that the HRET itself may ascertain the validity of Dimaporos allegations without resort to technic al examination. To this end, the Tribunal declared that the ballots, election documents and other election paraphernalia are still subject to its scrutiny in the appreciation of evidence.27 Moreover, it should be noted that the records are replete with evidence, documentary and testimonial, presented by Dimaporo. He has, in fact, already filed a Formal Offer of Evidence on January 29, 200428 to which Mangotara filed a Comment29 on February 4, 2004. Hence, Dimaporos allegation of denial of due process is an indefensible pretense. For the reasons above-mentioned, we are not convinced that the Tribunal committed grave abuse of discretion, much less exceeded its jurisdiction in issuing the questioned Resolutions. WHEREFORE, the instant petition is DISMISSED for lack of merit. SO ORDERED. Davide, Jr., C.J., Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. Puno, J., no part.

Vitug, J., no part. On official leave. Panganiban, J., on leave. Quisumbing, J., no part. Sandoval-Gutierrez, J., no part. Footnotes
1

22

Preliminary Conference Resolution No. 01-361, HRET Records, vol. 1, p. 181.

23

Supra, note 2 at 29, re: Letter from Atty. Rey Sumalipao, PES of Lanao del Norte and 14 other election officers of the 2nd District of Lanao del Norte received by the HRET on March 5, 2003.
24

Resolution No. 03-408 dated March 20, 2003, Rollo, pp. 26-30; and Resolution No. 03-166 dated May 29, 2003, Id. at 31-32. 2 Id. at pp. 33-38, excluding annexes. 3 Id. at 67-72. 4 Rule 16, HRET Rules. 5 Supra, note 2 at 73-87. 6 Id. at 89-96. 7 Id. at 101-106. 8 Id. at 116-122, Resolution No. 02-173, June 6, 2002. 9 Supra, note 2. 10 Supra, note 1. 11 Id. at 28. 12 Ibid. 13 Supra, note 3. 14 Supra, note 2 at 3-24. 15 Id. at 128-147.
16

"Rule 43. Technical Examination; Time Limits. The motion for technical examination may be granted by the Tribunal in its discretion and under such conditions as it may impose. If granted, the movant shall schedule the technical examination, to start within ten (10) calendar days from the time he was notified of the resolution or order granting his motion, notifying the other party and the Secretary of the Tribunal at least five (5) days in advance thereof. The technical examination shall be completed within the period allowed by the Tribunal, but in no case to exceed twenty (20) working days, unless an extension is granted pursuant to Rule 46. The other party may attend the technical examination, either personally or through a representative, but the technical examination shall proceed with or without his attendance, provided due notice has been given him. Where more than one party would request for technical examinations, the examinations shall, as far as practicable, be conducted simultaneously. The technical examination shall be conducted at the expense of the movant, in the offices of the Tribunal or such other place as the Tribunal may designate and under the supervision of the Secretary of the Tribunal or his duly authorized representative."
25 26

In his election protest, Mangotara alleged that in at least 35 precincts of SND, the voter turn out was 100%. In some instances, the votes recorded even exceeded the voters who actually voted. Moreover, in 73 out of 130 precincts of SND, Dimaporo obtained 100% of the votes cast, while the rest of the congressional candidates, including Mangotara, got zero (0) vote; Id. at 138.
17

"Rule 42. Motion for Technical Examination; Contents. Within five (5) days after completion of revision, either party may move for a technical examination, specifying: (1) The nature of the technical examination requested (fingerprint examination, etc.), (2) The documents to be subjected to technical examination; (3) The objections made in the course of the revision of ballots which the movant intends to substantiate with the results of the technical examination; and (4) The ballots covered by such objections."
18

Sec. 17, Art. VI, 1987 Constitution. Santiago v. Guingona, 359 Phil. 276 (1998), citing Co v. HRET, G.R. Nos. 92191-92 and 92202-03, July 30, 1991, 199 SCRA 692 (1991) citing Lazatin v. HRET, 168 SCRA 391, G.R. No. L-84297, December 8, 1988. 27 Supra, note 2 at 28, citing Resolution No. 02-128 dated May 14, 2002, HRET Case No. 01-015, Carino v. Lanot. 28 HRET Records, vol. 4, p. 1772. 29 Id. at 1775-1794.

G.R. No. 164922. October 11, 2005.* RAYMOND P. ESPIDOL, petitioner, vs. COMMISSION ON ELECTIONS, WILFREDO TABAG & THE MUNICIPAL BOARD OF CANVASSERS OF RAMON, ISABELA, respondents. Election Law; Pre-Proclamation Controversy; Under Section 20 of R.A. No. 7166, the board of canvassers is mandated to grant an objecting party 24 hours from the time of the presentation of the oral objection to submit its opposition.Under Section 20 of R.A. No. 7166, the board of canvassers is mandated to grant an objecting party 24 hours from the time of the presentation of the oral objection to submit its evidence. Thereafter, the other party is also given 24 hours to submit its opposition. If no opposition has been filed, the board shall rule on the objections and enter its ruling in the prescribed form and authenticate the same with the signatures of the members of the board. Same; Same; Quo Warranto; It is also true that as a general rule, the proper remedy after the proclamation of the winning candidate for the position contested would be to file a regular election protest or quo warranto.It bears reiterating, at this point, that the Court has given its imprimatur on the principle that the COMELEC is with authority to annul any canvass and proclamation illegally made. The fact that a candidate illegally proclaimed has assumed office is not a bar to the exercise of such power. It is also true that as a general rule, the proper remedy after the proclamation of the winning candidate for the position contested would be to file a regular election protest or quo warranto. This rule, however, admits of exceptions and one of those is where the proclamation was null and void. In such a case, i.e., where the proclamation is null and void, the proclaimed candidates assumption of office cannot deprive the COMELEC of the power to declare such proclamation a nullity.

Supra, note 2 at 158-163. Id. at 166-176.

19

20

Memorandum of the Petitioner dated October 16, 2003, Rollo, pp. 194-207; Memorandum for Private Respondent Mangotara dated November 6, 2003; Manifestation Adopting the Comment of House of Representatives Electoral Tribunal (HRET) as its Memorandum dated October 27, 2003 filed by the Office of the Solicitor General.
21

Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian Reform, G.R. Nos. 78742, 79310, 79744, 79777, July 14, 1989, 175 SCRA 343, 375 (1989), citing Ichong v. Hernandez, 101 Phil. 1155. See also Regala v. Sandiganbayan, 330 Phil. 678 (1996); Basco v. PAGCOR, 274 Phil. 323 (1991).

Same; Same; Words and Phrases; A pre-proclamation controversy is defined as referring to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns.A pre-proclamation controversy is defined as referring to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. Administrative Law; Due Process; In administrative proceedings, the essence of due process is simply an opportunity to be heard, or an opportunity to explain ones side or opportunity to seek a reconsideration of the action or ruling complained of.In administrative proceedings, the essence of due process is simply an opportunity to be heard, or an opportunity to explain ones side or opportunity to seek a reconsideration of the action or ruling complained of. Clearly, petitioner Espidol was given full opportunity to present his side on the petition for annulment filed by private respondent Tabag. [Espidol vs. Commission on Elections, 472 SCRA 380(2005)] DECISION CALLEJO, SR., J.:

Together with the After-Incident-Report, De Guzman submitted to Commissioner Sadain another Memorandum[11] requesting for a transfer of the canvassing venue to Manila citing as reason the volatile peace and order situation in Ramon, Isabela. On May 13, 2004, Commissioner Sadain denied De Guzmans request for a change of venue in view of the opposition of the other members of the MBC who refu ted De Guzmans claims of intimidation and harassment.[12] On May 14, 2004, the MBC reconvened and resumed the canvassing of the election returns. The canvassing continued until the evening of May 15, 2005. During the said proceedings, private respondent Tabag, through his lawyers, orally sought the exclusion of several election returns from the following precincts, namely: Precinct Nos. 2A, 4A/7A, 10A, 49A, 52A, 57A, 66A, 93A, 95/96A, 97A/98A, 103A, 112A, 15A, 24A, 47A&B, 63A, 88A, 92A/94, 50A, 56A, 60A/62A, 74A, 83A, 121A, 123A, 114A. Private respondent Tabag objected to the inclusion of these election returns on the following grounds: (1) that the security envelopes containing the election returns did not have the proper seals as required by Section 212 of the Omnibus Election Code (OEC); (2) that the election returns did not bear the signature of the chairman of the Board of Election Inspectors (BEI) as required by the same law; and (3) that the election returns did not have the thumbprints of the members of the BEI in the box provided for the purpose, and in some, the thumbprints and signatures of the BEI at the close of each entry or at the end of each tally/taras of each candidate were superimposed on the said tally/taras, thereby obscuring the number of votes obtained by each at the end of every entry.[13] Despite these objections, and without any formal or written ruling thereon, the MBC included the contested election returns. The canvassing was concluded at about 9:30 p.m. of May 15, 2004.[14] In the morning of May 16, 2004, private respondent Tabag, through counsel, filed a petition with the MBC vigorously opposing the impending proclamation on the ground that the proceedings of the board were irregular. De Guzman read the petition aloud. Nonetheless, at 9:00 a.m. of the same day, or barely twelve (12) hours after the conclusion of the canvassing of votes, the MBC proceeded to proclaim petitioner Espidol as the winning candidate for mayor, along with the vice-mayor and eight councilors.[15] Petitioner Espidol obtained 8,647 votes as against his closest rival, private respondent Tabag, who obtained 6,635 votes, or a margin of 2,012 votes. [16] Minutes after the proclamation, the counsel of private respondent Tabag submitted to the MBC his written objections to the inclusion in the canvass of the contested election returns. The MBC did not make a formal or written ruling thereon.[17] On May 24, 2004, private respondent Tabag filed with the COMELEC a petition for annulment of proclamation.[18] Named respondents therein were MBC Chairman De Guzman, and petitioner Espidol. The petition was docketed as SPC 04-180 and raffled to the COMELEC Second Division. In support of his petition, private respondent Tabag alleged that: 1. The MBOC acted in violation of RA 7166 and Comelec Resolution No. 2962 (6669) and with grave abuse of discretion amounting to lack of jurisdiction, in proclaiming private respondent (Espidol) as winner despite the pending and unresolved appeals before it, the railroading of petitions for exclusion without any hearing and written rulings thereon, and the petitions for exclusion which were not acted and ruled upon by it, considering that the contested returns will adversely affect the results of the election. 2. The proclamation by the board of private respondent as winner, is vitiated by duress, coercion, intimidation and threats and the mob rule, and the preparation of the election returns in certainbarangays of the municipality is likewise vitiated by intimidation and threats resulting to falsified and materially defective returns and failure of elections and, therefore, not made freely and voluntarily as the true will of the electorate, considering that the contested returns will affect the results of the election. 3. The integrity, genuineness and sanctity of the contested election returns have been violated because the security envelopes containing the election returns do not have the proper seals provided by the commission for the purpose when prepared by the BEI until the same

Before the Court is the petition for certiorari and prohibition filed by Raymond P. Espidol seeking to nullify the Resolution[1] dated August 30, 2004 of the Commission on Elections (COMELEC) en banc in SPC No. 04180. The said resolution affirmed the COMELEC Second Division Resolution[2] dated July 16, 2004 annulling the petitioners proclamation as the duly-elected municipal mayor of Ramon, Isabela, during the May 10, 2004 elections. The Antecedents Petitioner Raymond P. Espidol and private respondent Wilfredo L. Tabag were rival candidates for Mayor of the Municipality of Ramon, Isabela, in the May 10, 2004 synchronized national and local elections.[3] Petitioner Espidol, a re-electionist, was the official candidate of the Lakas ng Bansa (Lakas)-Christian Muslim Democrats (CMD) coalition,[4] while private respondent Tabag was the official candidate of the Partidong Demokratiko ng Pilipinas-Laban (PDP-Laban).[5] The municipality had a total of 117 precincts.[6] At about 6:00 p.m. of May 10, 2004, the Municipal Board of Canvassers (MBC) of Ramon, consisting of Chairman Atty. Agripino A. De Guzman, Jr., Vice-Chairman Pedro L. Gueco and Member-Secretary Rosalinda B. Doroni, convened at the municipalitys Barangay Training Center to commence the canvassing.[7] Actual canvassing started at around 3:00 a.m. of the following day or May 11, 2004, and formally adjourned at about 8:30 p.m., with the MBC scheduling the resumption of the canvass at 9:00 a.m. of the next day. [8] However, no canvassing took place on May 12 and 13, 2004 because MBC Chairman De Guzman failed to report for work at the canvassing center. [9] In his After-Incident-Report Memorandum for Commissioner Mehol K. Sadain, Commissioner-in-Charge for Regions II and III, De Guzman reported that, in the evening of May 11, 2004, just after the adjournment of the canvassing proceedings, he and his group of tabulators were harassed and intimidated by allies and political supporters of petitioner Espidol. De Guzman further averred that on their way to Santiago City where they were temporarily billeted, their car was tailed by a vehicle belonging to petitioner Espidols camp. Fearing for their safety, De Guzman immediately requested protection from the local police. This did not allay the fears of his staff because the next day, his group of tabulators fled back to Manila. [10]

were subsequently transmitted to and canvassed by the MBOC, the election returns did not bear the signature of the chairman of the BEIs, the election returns do not have the thumbmarks/thumbprints of the members of the BEI in the boxes provided for the purpose, and in some, the thumbmarks and signatures of the BEI at the close of each entry or at the end of each tally/taras of each candidate were superimposed on the said tally/ taras thereby obscuring the number of votes obtained by each at the end of every entry.

Mayor of Ramon, Isabela. Private respondent Tabag also prayed that petitioner Espidol be cited for contempt for blatantly disregarding the June 23, 2004 Order.[26] On June 29, 2004, the COMELEC Second Division, acting on the urgent motion, issued an Order, the fallo of which stated thus WHEREFORE, premises considered, respondent [referring to petitioner Espidol] is hereby directed to submit his comment to the above motion within five (5) days from notice. A stern warning is further directed upon respondent to refrain from committing acts which are in contravention of the Commissions June 23, 2004 Order and which tend to obstruct the proper resolution by the Commission of the present controversy, lest a severe sanction shall be imposed upon the same. SO ORDERED.[27] Notwithstanding the two orders, on June 30, 2004 the beginning of the term of office of all elective officials Espidol assumed office as Mayor of Ramon, Isabela and has since been discharging its functions and duties. On July 16, 2004, the COMELEC Second Division promulgated the Resolution[28] declaring petitioner Espidols proclamation illegal. It held that the MBC failed to give private respondent Tabag 24 hours from the time of his oral objections to submit his evidence in support thereof, in gross violation of Section 20 (c) of Republic Act (R.A.) No. 7166. Worse, the MBC acted without authority when it proclaimed petitioner Espidol as the duly elected Mayor of Ramon, Isabela, without making any written rulings on the objections raised by private respondent Tabag, in gross violation of paragraph (i) of the same provision. It further ruled that MBC was pressured, coerced, threatened and intimidated by petitioner Espidol in order to proclaim him. Further, the COMELEC Second Division opined that since the number of the votes cast for the mayoralty position exceeded the number of registered voters who actually voted by 858 as reflected in the Statement of Votes (SOV), there was enough basis to annul petitioner Es pidols proclamation. The dispositive portion of the resolution reads: WHEREFORE, premises considered, the Petition to Annul the Proclamation of Respondent Raymond P. Espidol, as Mayor of Ramon, Isabela, is hereby GRANTED; consequently, the proclamation of Respondent Raymond P. Espidol is hereby declared NULL and VOID. A Municipal Board of Canvassers shall be reconstituted to conduct a re-canvassing of the election returns strictly adhering to the prescribed procedures for canvassing and in handling contested election returns; meanwhile, the Vice-Mayor elect shall temporarily assume the mayoralty post as Acting Mayor, until further notice; furthermore, the Provincial Commanding Officer of the Philippine National Police in the Province of Isabela is hereby deputized, together with the Chief of Police of the Municipality of Ramon, Isabela, to assist the Election Officer of the same municipality, in ensuring that this resolution be immediately enforced. Let a copy of this resolution be furnished to the Department of Interior and Local Government for their information and guidance in implementing the provision on temporary succession in the local government as provided in the Local Government Code. The charge of indirect contempt against respondent Raymond P. Espidol shall be treated as a separate case and subjected to a hearing in compliance with the requirements of due process. Petitioner is further advised that the appropriate complaint for election offense against the alleged offenders be filed with the Commission. SO ORDERED.[29]

4. Discrepancy in the statement of votes by precinct of the MBOC where the sum total of the number of votes obtained by the three (3) mayoralty candidates is greater than the number of those who actually voted in all the 117 precincts of the municipality of Ramon, Isabela.[19]

On June 9, 2004, the COMELEC Second Division issued summonses with notice of hearing on June 17, 2004. During the said hearing, the parties made their respective manifestations. Subsequently, petitioner Espidol was given five (5) days to file his Answer-Memorandum, while private respondent Tabag and De Guzman were also given the same period to file their respective memoranda. On June 21, 2004, private respondent Tabag filed his Memorandum, while petitioner Espidol and De Guzman filed their respective Answer-Memoranda on June 22, 2004.[20] In his Answer-Memorandum,[21] petitioner Espidol contended that the grounds raised by private respondent Tabag were not proper for a pre-proclamation controversy. Moreover, the latter did not raise his objections properly. Petitioner Espidol also refuted private respondent Tabags allegations of massive vote buying, threats and intimidation. For his part, MBC Chairman De Guzman, in his Answer-Memorandum,[22] admitted that the board did not make any formal or written rulings on the objections raised by private respondent Tabag. De Guzman averred that there were persistent threats and intimidation which constrained him to hastily finish the canvassing. In fact, two of the tabulators with him (De Guzman) who were from Manila went home without finishing their task of tabulating because of fear for their safety. These tabulators from Manila, were replaced with local municipal employees. Acting on the pleadings filed by the parties, the COMELEC Second Division issued the Order [23] dated June 23, 2004 suspending the effects of petitioner Espidols proclamation: Due to the seriousness of the allegation that the Board of Canvassers issued the proclamation even before questions involving the validity of returns which will affect the result of the election are resolved by the Commission, which is clearly in violation of the above mandated procedure, and, further, that the proclamation of private respondent [referring to Espidol] as the Mayor-elect of the Municipality of Ramon, Isabela was allegedly issued under duress, and with intimidation, coercion and threats, the Commission (Second Division) hereby orders that the effect of the proclamation of private respondent Raymond P. Espidol be suspended until the issues raised on the irregularities and alleged duress in the issuance of the proclamation be resolved on the merit. WHEREFORE, premises considered, the Second Division of the Commission hereby SUSPENDS THE EFFECT OF THE PROCLAMATION of private respondent Raymond P. Espidol, with the note that the instant petition shall be resolved on the merit with dispatch. SO ORDERED.[24]

In defiance of the said order, petitioner Espidol took his oath of office as Mayor of Ramon, Isabela on June 25, 2004.[25] Consequently, on June 26, 2004, private respondent Tabag filed with the COMELEC an urgent motion to annul the oath of petitioner Espidol and to restrain him from assuming the duties and functions of the Municipal

On July 21, 2004, petitioner Espidol filed a motion for reconsideration with the COMELEC Second Division.[30]

On August 30, 2004, the COMELEC en banc promulgated its Resolution[31] affirming in toto the COMELEC Second Divisions Resolution of July 16, 2004. The dispositive portion of the COMELEC en bancs resolution reads: WHEREFORE, premises considered, the Commission En Banc hereby DENIES the Motion for Reconsideration of Private Respondent for lack of merit and AFFIRMS the Resolution of the Second Division of the Commission ANNULLING THE PROCLAMATION of Private Respondent Raymond Espidol. We further AFFIRM the Second Divisions issuance of the interlocutory order SUSPENDING THE EFFECT OF THE PROCLAMATION of Private Respondent Raymond Espidol. We further emphasize that private respondent Raymond Espidol has no authority to assume the Office of the Mayor from the very beginning or on June 30, 2004, his proclamation being null and void ab initio. Private respondent Raymond Espidol is hereby directed to physically vacate the Office of the Mayor for having no authority to assume and remain therein. Accordingly, as provided in the Local Government Code, the Vice-Mayor is hereby directed to assume the Office of the Mayor temporarily until the controversy as to who shall assume the post shall have been resolved. Let a copy of this resolution be issued to the Department of Interior and Local Government and the Philippine National Police for their information and guidance. Furthermore, the Provincial Commander of the Philippine National Police of the Province of Isabela, as assisted by the Municipal Chief of Police of Ramon, Isabela is hereby DEPUTIZED TO ASSIST the Election Officer of Ramon, Isabela or any authorized representative of the Commission on Elections, and ENSURE that this resolution be ENFORCED. SO ORDERED.[32] The COMELEC en banc affirmed the findings of the Second Division as it held that the proclamation of petitioner Espidol is null and void for having been made amidst questionable circumstances, particularly by railroading the proclamation, as admitted by the Chairman of the MBC, when he failed or refused to follow the canvassing procedure, especially the issuance of written rulings in the disposition of objected election returns. This fact, according to the COMELEC en banc, is also revealed by the minutes of the board of canvassers when no report was made that written rulings were issued in the disposition of the objections to the election returns. The COMELEC en banc thus ruled that the Second Division was correct in preliminarily suspending the effects of petitioner Espidols proclamation and eventually annulling the same. The COMELEC en banc opined that while it is true that after a winning candidate has been proclaimed, the remedy of a losing candidate is to file an election protest, such rule is applicable only when there has been a valid proclamation. It likewise debunked petitioner Espidols interpretation of Section 20(c) of R.A. No. 7166 that oral and written objections on election returns must be simultaneously, i.e., without interval of time, submitted to the board. It characterized this interpretation as too constricting. Rather, the COMELEC en banc ratiocinated, an objecting candidate may still submit his written objection and evidence in support thereof within 24 hours from making the oral objection. It concluded that election cases are imbued with public interest and laws governing election contests must be liberally construed to the end that the true wishes of the electorate prevail. Commissioner Virgilio O. Garcillano dissented from the COMELEC en bancs Resolution of August 30, 2004 as he voted to reconsider the Resolution of the Second Division. Commissioner Garcillano was of the view that the [b]oard correctly included the contested election returns in the canvass as they did not suffer any serious infirmities affecting their integrity.[33] Aggrieved, petitioner Espidol sought recourse to the Court by filing the present Petition for Certiorari and Prohibition with Prayer for Temporary Restraining Order, Maintenance of Status quo and/or Writ of Preliminary Injunction. In the Resolution[34] dated September 7, 2004, the Court directed the parties to observe the status quo prevailing before the filing of the petition.

Petitioner Espidol proffers the following issues for the Courts resolution: I Did respondent COMELEC commit grave abuse of discretion amounting to lack or excess of jurisdiction when it resolved to affirm the 16 July 2004 Resolution of the COMELEC Second Division which erroneously held that the MBC of Ramon, Isabela did not follow the prescribed procedure in disposing the private respondents objection to certain ERs[?] II Did respondent COMELEC commit grave abuse of discretion amounting to lack or excess of jurisdiction when it held that the petitioners proclamation was vitiated by threat, intimidation, coercion and duress[?] III Did respondent COMELEC commit grave abuse of discretion [a]mounting to lack or excess of jurisdiction when it suspended the effects of the petitioners proclamation[?][35] Petitioner Espidol contends that De Guzmans tale of threats and intimid ation should have been taken by the COMELEC with a grain of salt. It being patently baseless and totally fabricated, the COMELEC gravely abused its discretion in swallowing the same hook, line and sinker. Petitioner Espidol also assails the COMELEC Second Divisions interlocutory order suspending the effects of his proclamation, claiming that the same was issued without the required notice and hearing. Petitioner Espidol further argues that the grounds invoked by private respondent Tabag, i.e., lack of inner paper seals, lack of signature of BEI chairman, absence of thumbmarks on the election returns, among others, are merely defects in form and not proper subjects of a pre-proclamation controversy. Citing jurisprudence, petitioner Espidol emphatically asserts that the enumeration in Section 243 of the Omnibus Election Code (OEC) of the issues that may be raised in a pre-proclamation controversy is restrictive and exclusive. He maintains that even assuming that the grounds relied upon by private respondent Tabag were proper issues in a pre-proclamation controversy, the MBC, nonetheless, correctly included the orally objected election returns in the canvassing since the latters oral objections were not reduced into writing and simultaneously filed wit h the board as required by Section 20 of R.A. No. 7166. Petitioner Espidol posits that Section 245 of the OEC, which allows the filing of the written objection within 24 hours from the time the oral objection was made, has been amended by Section 20 of R.A. No. 7166 which now requires both oral and written objections to be simultaneously filed with the MBC. Thus, there was allegedly no need for the MBC to make any written rulings on the objections made by private respondent Tabag because these were not raised properly or in the manner prescribed by Section 20 of R.A. No. 7166. Petitioner Espidol points out that private respondent Tabags remedy is not the exclusion of the contested election returns, but that provided under Section 234 of the OEC, thus Section 234. Material defects in the election returns. If it should clearly appear that some requisites in form or data had been omitted in the election returns, the board of canvassers shall call for all members of the board of election inspectors concerned by the most expeditious means, for the same board to effect the correction. Provided, That in case of the omission in the election returns of the name of any candidate and/or his corresponding votes, the board of canvassers shall require the board of election inspectors concerned to complete the necessary data in the election returns and affix therein their initials: Provided, further, That if the votes omitted in the returns cannot be ascertained by other means except by recounting the ballots, the Commission, after satisfying itself that the identity and integrity of the ballot box have not been violated, shall order the board of election inspectors to open the ballot box, and, also after satisfying itself that the integrity of

the ballots therein has been duly preserved, order the board of election inspectors to count the votes for the candidate whose votes have been omitted with notice thereof to all candidates for the position involved and thereafter complete the returns. The right of a candidate to avail of this provision shall not be lost or affected by the fact that an election protest is subsequently filed by any of the candidates. In his Comment,[36] private respondent Tabag supports the findings of the COMELEC. In addition, he avers that the petition is defective since it failed to implead Vice-Mayor Mercedez M. Vizcarra, who is now the Acting Mayor of Ramon, Isabela. He argues that Vice-Mayor Vizcarra is an indispensable party without whom no final determination of the action may be had.

appeal; and within an unextendible period of five (5) days thereafter, an appeal may be taken to the Commission. (g) Immediately upon receipt of the notice of appeal, the board shall make an appropriate report to the Commission, elevating therewith the complete records and evidence submitted in the canvass, and furnishing the parties with copies of the report. (h) On the basis of the records and evidence elevated to it by the board, the Commission shall decide summarily the appeal within seven (7) days from receipt of the said records and evidence. Any appeal brought before the Commission on the ruling of the board, without the accomplished forms and the evidence appended thereto, shall be summarily dismissed. The decision of the Commission shall be executory after the lapse of seven (7) days from receipt thereof by the losing party. (i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election. [37]

The petition is bereft of merit.

Section 20 of R.A. No. 7166 outlines the procedure for the disposition of contested election returns, thus: SECTION 20. Procedure in Disposition of Contested Election Returns. (a) Any candidate, political party or coalition of political parties contesting the inclusion or exclusion in the canvass of any election returns on any of the grounds authorized under Article XX or Section 234, 235 and 236 of Article XIX of the Omnibus Election Code shall submit their oral objection to the chairman of the board of canvassers at the time the questioned return is presented for inclusion in the canvass. Such objection shall be recorded in the minutes of the canvass. (b) Upon receipt of any such objection, the board of canvassers shall automatically defer the canvass of the contested returns and shall proceed to canvass the returns which are not contested by any party. (c) Simultaneous with the oral objection, the objecting party shall also enter his objection in the form for written objections to be prescribed by the Commission. Within twentyfour (24) hours from and after the presentation of such an objection, the objecting party shall submit the evidence in support of the objection, which shall be attached to the form for written objections. Within the same period of twenty-four (24) hours after presentation of the objection, any party may file a written and verified opposition to the objection in the form also to be prescribed by the Commission, attaching thereto supporting evidence, if any. The board shall not entertain any objection or opposition unless reduced to writing in the prescribed forms. The evidence attached to the objection or opposition submitted by the parties, shall be immediately and formally admitted into the records of the board by the chairman affixing his signature at the back of each and every page thereof. (d) Upon receipt of the evidence, the board shall take up the contested returns, consider the written objections thereto and opposition, if any, and summarily and immediately rule thereon. The board shall enter its ruling on the prescribed form and authenticate the same by the signatures of its members. (e) Any party adversely affected by the ruling of the board shall immediately inform the board if he intends to appeal said ruling. The board shall enter said information in the minutes of the canvass, set aside the returns and proceed to consider the other returns. (f) After all the uncontested returns have been canvassed and the contested returns ruled upon by it, the board shall suspend the canvass. Within forty-eight (48) hours therefrom, any party adversely affected by the ruling may file with the board a written and verified notice of

In the present case, private respondent Tabag, through his lawyers, sought during the canvassing the exclusion of several election returns on various grounds, among them: lack of inner paper seals, lack of signature of the Chairman of the BEI, absence of thumbmarks of the members of the BEI, etc. These objections were tabulated[38] as follows: Precinct Number 2A Number of Votes Cast 151

4A/7A

10A

49A

52A

57A

66A

93A

95/96A

- petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; verbally appealed while written Notice of Appeal was not acted upon. - petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; verbally appealed while written Notice of Appeal was not acted upon. - petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; verbally appealed while written Notice of Appeal was not acted upon. - petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; verbally appealed while written Notice of Appeal was not acted upon. - petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; verbally appealed while written Notice of Appeal was not acted upon. - petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; verbally appealed while written Notice of Appeal was not acted upon. - petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; verbally appealed while written Notice of Appeal was not acted upon. - petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; verbally appealed while written Notice of Appeal was not acted upon. - petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; verbally appealed while written Notice of Appeal was not acted upon.

174

138

135

136

146

137

168

198

97A/98A

103A

112A

15A 24A 47A & B 63A 88A 92A/94

50A

56A

60A/62A

74A

83A

121A

123A

114A

- petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; verbally appealed while written Notice of Appeal was not acted upon. - petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; verbally appealed while written Notice of Appeal was not acted upon. - petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; verbally appealed while written Notice of Appeal was not acted upon. - petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; no appeal from private respondent. - petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; no appeal from private respondent. - petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; no appeal from private respondent. - petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; no appeal from private respondent. - petition for exclusion filed by petitioner but inclusion was ordered by MBOC without written ruling; no appeal from private respondent. -canvass was deferred by MBOC for lack of summation on the first page of the ER but the inclusion thereafter was made without written ruling of the MBOC. - petition for exclusion with offer of evidence in writing was submitted in the morning but was not acted and not ruled upon, thereafter, MBOC proclaimed the respondent. - petition for exclusion with offer of evidence in writing was submitted in the morning but was not acted and not ruled upon, thereafter, MBOC proclaimed the respondent. - petition for exclusion with offer of evidence in writing was submitted in the morning but was not acted and not ruled upon, thereafter, MBOC proclaimed the respondent. - petition for exclusion with offer of evidence in writing was submitted in the morning but was not acted and not ruled upon, thereafter, MBOC proclaimed the respondent. - petition for exclusion with offer of evidence in writing was submitted in the morning but was not acted and not ruled upon, thereafter, MBOC proclaimed the respondent. - petition for exclusion with offer of evidence in writing was submitted in the morning but was not acted and not ruled upon, thereafter, MBOC proclaimed the respondent. - petition for exclusion with offer of evidence in writing was submitted in the morning but was not acted and not ruled upon, thereafter, MBOC proclaimed the respondent. - petition for exclusion with offer of evidence in writing was submitted in the morning but was not acted and not ruled upon, thereafter, MBOC proclaimed the respondent. 4,160

178

164

by the signatures of its members. De Guzman, the Chairman of the MBC, in his answer-memorandum filed with the COMELEC Second Division, admitted that the MBC did not make any written ruling vis--vis private respondent Tabags objections, even those made in writing. Petitioner Espidol maintains that the MBC could not be faulted for not making any written rulings on private respondent Tabags objections because most were not reduced to writing as required by paragraph (c) of Section 20 of R.A. No. 7166. Further, those objections made in writing were not allegedly simultaneously submitted with the oral objections. According to petitioner Espidol, the word simultaneous in Section 20 (c) of R.A. No. 7166 should be construed strictly in view of its mandatory nature. This proffered construction fails to persuade. As correctly ruled by the COMELEC en banc and the Second Division, the word simultaneous must not be given a strict and constricting meaning. Submission of the written objection within 24 hours from when the oral objection was made is substantial compliance with the law. The COMELEC en bancs ratiocination on this point is quoted with approval: There is no debate that an oral objection must be reduced into writing. Even the case laws cited by private respondent [referring to Espidol] assert the same requirement. However, there was never any discussion that the same shall be submitted at the same moment as the oral objection. The requirement therefore that written objections must be submitted simultaneously is just limited to the provision itself. To advance, therefore, the technical interpretation of the word simultaneous, is to require that written objections should be submitted at the same time with the oral objection. The fact that the rule speaks of an oral objection separate from the written contemplates that both forms may be submitted at different moments, as long as this is done within reasonable time. Hence, if a counsel submits his written objection an hour later, the same may be considered compliance with the rule. The same may be the situation if counsel may submit written objections at the end of the canvassing for the day. The question, therefore, is up to when reasonable time be in the submission of written objections. The interpretation must be put in the context of the whole process of disposing objected returns. Considering that the objections have to be ruled upon by the board of canvassers based on the evidence which are required to be submitted within twenty-four (24) hours, the board, therefore, has to wait for at least twenty-four (24) hours, before they could rule on the objection. Hence, even if the board already has written objections with them, they still cannot rule on the same until the evidence has been submitted within twenty-four (24) hours. It is therefore, the consideration of this Commission that the board of canvassers should not rule on the objections of the parties until the twenty-four-hour (24) period has lapsed, unless they already have with them the written objections as well as the evidence. In that case, submission of written objections within twenty-four (24) hours together with the evidence, may be considered substantial compliance with the rule.[39] Petitioner Espidol likewise justifies the MBCs failure to rule on the objections of private respondent Tabag by stating that these were not proper for pre-proclamation controversy; hence, the dismissal thereof by the MBC was proper. This contention deserves scant consideration. A pre-proclamation controversy is defined as referring to any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns.[40] Issues that may be raised in a pre-proclamation controversy are as follows: (a) Illegal composition or proceedings of the board of canvassers;

141

145 132* 242* 138* 164* 188*

158

149

210

144

145

169

149

161

Total Votes Cast on Contested Precincts

As shown above, in no single instance did the MBC make any written ruling on the numerous petitions for exclusion filed by private respondent Tabag. Even those objections made in writing by private respondent Tabag were not acted and ruled upon by the MBC; neither did it act on the several written notices of appeal filed by private respondent Tabag. Clearly, the MBC violated its duty under paragraph (d) of Section 20 of R.A. No. 7166 to enter its rulings, particularly on those objections that have been reduced to writing, on the prescribed form and authenticate the same

(b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in another authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;

prescribed form and authenticate the same with the signatures of the members of the board. As earlier opined, De Guzman, as Chairman of the MBC, admitted in his Answer-Memorandum that the board did not make any written rulings on the objections interposed by private respondent Tabag, including those reduced to writing.

(c) The election returns were prepared under duress, threats, coercion or intimidation, or they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controversy polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. [41] Admittedly, the Court had the occasion to state that lack of inner paper seals in the election returns does not justify their exclusion from canvassing and that such is not proper subject of a pre-proclamation controversy.[42] However, in the present case, aside from the lack of inner paper seals, private respondent Tabag raised other grounds for the exclusion of certain election returns, including lack of signature of the Chairman of the BEI and absence of thumbmarks of the members of the BEI. The signatures and thumbmarks of the BEI members are required to be affixed on the election returns under Section 212 of the OEC, which states in part: Sec. 212. Election returns. The board of election inspectors shall prepare the election returns simultaneously with the counting of the votes in the polling place as prescribed in Section 210 hereof. The return shall be prepared in sextuplicate. The recording of votes shall be made as prescribed in said section. The entry of votes in words and figures for each candidate shall be closed with the signature and the clear imprint of the thumbmark of the right hand of all the members, likewise to be affixed in full view of the public , immediately after the last vote recorded or immediately after the name of the candidate who did not receive any vote. If the signatures and/or thumbmarks of the members of the board of election inspectors or some as required in this provision are missing in the election returns, the board of canvassers may summon the members of the board of election inspectors concerned to complete the returns. In relation thereto, the pertinent proviso of Section 234 of the OEC is quoted anew: Sec. 234. Material defects in the election returns. If it should appear that some requisites in form or data had been omitted in the election returns, the board of canvassers shall call for all the members of the board of election inspectors concerned by the most expeditious means, for the same board to effect the correction Consequently, the absence of these signatures and thumbmarks rendered the said election returns materially defective and, therefore, proper subject of a pre-proclamation controversy particularly falling under paragraph (b) of Section 243 of the OEC which is quoted anew: (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in another authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code; Granting arguendo that the objections interposed by private respondent Tabag were not proper for a preproclamation controversy, nonetheless, the MBC should have made written rulings thereon. Under Section 20 of R.A. No. 7166, the board of canvassers is mandated to grant an objecting party 24 hours from the time of the presentation of the oral objection to submit its evidence. Thereafter, the other party is also given 24 hours to submit its opposition. If no opposition has been filed, the board shall rule on the objections and enter its ruling in the

The requirement that the board of canvassers reduce to writing its rulings is mandatory: It is clear from this provision that the board of canvassers is under the obligation to make a written ruling on the formal objections made by any of the parties, who may then appeal the same to the COMELEC. It is equally clear that the failure or refusal of the board of canvassers to discharge this obligation should not in any way prejudice the objecting partys right to elevate the matter to the COMELEC for proper review. Otherwise, all that a board of canvassers partial to one of the candidates has to do to favor him would be to refuse to make a written ruling on his opponents objections and thereby prevent their review by the COMELEC.[43] The Court notes that during the final day of the canvassing, or on May 15, 2004, private respondent Tabag made oral objections to the inclusion of several election returns. The canvassing concluded at about 9:30 p.m. of the said day. Barely 12 hours thereafter, or at 9:00 a.m. of May 16, 2004, the MBC proclaimed petitioner Espidol as the mayor-elect of Ramon, Isabela. By so doing, the MBC effectively deprived private respondent Tabag of the opportunity to seasonably substantiate his oral objections with evidence and submit the corresponding written objections. The proclamation of petitioner Espidol was clearly made with undue haste, considering that it was made even before the lapse of the 24-hour period given to private respondent Tabag under Section 20(c) of R.A. No. 7166 to submit the evidence and written objections in support of his oral objections. In other words, the MBC, without awaiting for or considering private respondent Tabags evidence and written objections to support his oral objections and, consequently, without any lawful ruling thereon, proclaimed petitioner Espidol. In the process, the MBC not only deprived private respondent Tabag of the right to appeal its ruling to the COMELEC, it likewise deprived the latter body to rule on the objections of private respondent Tabag. Such act of the MBC violated Section 20 (i) of R.A. No. 7166, quoted again below: (i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election. The following pronouncement in Jamil v. Comelec[44] is likewise instructive: It is our considered view that both proclamations of petitioner and private respondent are invalid. Clear it is that petitioner Jamil was proclaimed on June 26, 1995 after Casan Macadato, chairman of the second MBC, conducted an investigation with respect to the inclusion or exclusion of the returns from Precinct Nos. 5, 10-1 and 20-1 and after he submitted his investigation report, which he alone signed, to the COMELEC on June 5, 1995 merely recommending the inclusion of the three (3) returns in the canvass. As we have mentioned above, said investigation report was not in form or substance a ruling of the MBC because it did not make a definitive pronouncement or disposition resolving the issues regarding the questioned returns but only a recommendation to the COMELEC. There being no ruling on the inclusion or exclusion of the disputed returns, there could have been no complete and valid canvass which is a prerequisite to a valid proclamation.[45] In addition, it is significant to note that the COMELEC Second Division found a discrepancy between the number of votes cast for the mayoralty candidates and the number of registered voters who actually voted. Upon verification of the SOV, the COMELEC Second Division discovered that the total number of those who actually voted was 17,207; on the other hand, the total number of votes cast for the mayoralty candidates added up to 18,065,

hence, exceeding the total number of those who actually voted by 858. This finding was affirmed by the COMELEC en banc. Pertinently, in Duremdes v. COMELEC,[46] cited by the COMELEC Second Division, the Court affirmed the COMELECs nullification of the proclamation of a candidate for the Vice-Governor as there existed discrepancies between the number of votes appearing in the SOV and that in the election returns. According to the Court in the said case, any error in the Statement of Votes would affect the proclamation made on the basis thereof. The true will of the electorate may thus be not fully and faithfully reflected by the proclamation [47] Equally damaging to petitioner Espidols cause is the admission made by De Guzman in his Answer Memorandum of the presence of threats and intimidation that constrained him to hastily finish the canvassing and proclamation.[48] The following disquisition of the COMELEC Second Division with respect to the discrepancy in the SOV and the presence of threats and intimidation is apropos: The above discrepancy may not overturn the alleged lead of respondent [referring to Espidol] from petitioner [referring to Tabag] but such figure tells of the fact that a deliberate attempt to pad ones votes may have transpired, and the Commission cannot just close its eyes to this travesty of the integrity of the electoral process. In addition to this, when We consider all the other circumstances surrounding the canvassing of the returns in Ramon, Isabela, including the admission of the MBOC Chairman of the presence of threats and intimidation, as well as the irregularities in the accomplishment of the election returns as found during the canvassing, We are lead to conclude that the proceedings of the MBOC in Ramon, Isabela has been irregular and that the same has been vitiated with threats and intimidation, hence, annulment of Respondents proclamation is in order.[49] Under the foregoing circumstances, the COMELEC did not commit grave abuse of discretion when it nullified the proclamation of petitioner Espidol. In a long line of cases, the Court has affirmed the power of the COMELEC to annul an illegal canvass and proclamation.[50] Lastly, petitioner Espidol decries that he was deprived of due process when the COMELEC Second Division issued the Order dated June 23, 2004 suspending the effects of his proclamation. The records, however, belie this claim, as it has been shown that on June 9, 2004, the COMELEC issued summonses with notice of the hearing set on June 17, 2004; on the said date, respective counsel of petitioner Espidol and private respondent Tabag attended the hearing; after making their respective manifestations, petitioner Espidols counsel was given five (5) days to file his answer-memorandum; and on June 22, 2004, petitioner filed his Answer-Memorandum. The fact that the order of the COMELEC Second Division suspending the effects of petitioner Espidols proclamation was issued a day after he filed his Answer-Memorandum does not mean that the order was tainted with irregularity. As the COMELEC en banc explained The order to suspend the effect of private respondents [referring to petitioner Espidol] proclamation is an interlocutory order based on a prima facie finding that the allegations raised by the petitioner have merits. It is also intended to prevent private respondent from having the advantage of incumbency, hence, depriving him of the possibility of delaying the resolution of this case and of a possible election protest. If, on the other hand, private respondent is confident that he is the true winner of the election then such fact will come out during the re-canvassing of the election returns. However, if he has something to hide then his best strategy, indeed, is to grab the proclamation, assume the office and delay any controversy or protest filed against him until the end of the term of the subject office. Such interlocutory order was eventually justified by the actuation of private respondent of taking his oath of office and in actually assuming the post of Mayor despite the order suspending the effect of his proclamation. His counsel should have advised him to follow the order of the Commission and push for the immediate resolution of the controversy so that any doubt as

regards his proclamation will immediately be erased, unless, such doubt is corroborated during the re-canvassing of the election returns.[51]

In administrative proceedings, the essence of due process is simply an opportunity to be heard, or an opportunity to explain ones side or opportunity to seek a reconsideration of the action or ruling complained of.[52] Clearly, petitioner Espidol was given full opportunity to present his side on the petition for annulment filed by private respondent Tabag. It bears reiterating, at this point, that the Court has given its imprimatur on the principle that the COMELEC is with authority to annul any canvass and proclamation illegally made. [53] The fact that a candidate illegally proclaimed has assumed office is not a bar to the exercise of such power.[54] It is also true that as a general rule, the proper remedy after the proclamation of the winning candidate for the position contested would be to file a regular election protest or quo warranto.[55] This rule, however, admits of exceptions and one of those is where the proclamation was null and void.[56] In such a case, i.e., where the proclamation is null and void, the proclaimed candidates assumption of office cannot deprive the COMELEC of the power to declare such proclamation a nullity.[57] The rationale therefor is aptly elucidated thus: We draw from past experience. A pattern of conduct observed in past elections has been the pernicious grab-the-proclamation-prolong-the-protest-slogan of some candidates or parties. Really, were a victim of a proclamation to be precluded from challengin g the validity thereof after that proclamation and the assumption of office thereunder, baneful effects may easily supervene. It may not be out of place to state that in the long history of election contests in this country, as served in Lagumbay v. Climaco, successful contestant in an election protest often wins but a mere pyrrhic victory, i.e., a vindication when the term of office is about to expire or has expired. Protests, counter-protests, revisions of ballots, appeals, dilatory tactics, may well frustrate the will of the electorate. And what if the protestant may not have the resources and an unwavering determination with which to sustain a long drawn-out election contest? In this context therefore all efforts should be strained as far as is humanly possible to take election returns out of the reach of the unscrupulous; and to prevent illegal or fraudulent proclamation from ripening into illegal assumption of office.[58] All told, the COMELEC en banc did not commit grave abuse of discretion in affirming in toto the resolution of the Second Division annulling the proclamation of petitioner Espidol. WHEREFORE, the petition is DISMISSED. The Resolution dated August 30, 2004 of the COMELEC en banc in SPC No. 04-180 is AFFIRMED in toto. The status quo order issued on September 7, 2004 is hereby set aside. This decision is immediately executory. SO ORDERED.
[1] [2]

Rollo, p. 62. Rollo, p. 46. [3] Id. at 16. [4] Id. at 331. [5] Id. at 353. [6] Id. at 91. [7] Id. at 140. [8] Id. at 141-143. [9] Rollo, p. 143. [10] Id. at 63-64.

[11] [12]

Id. at 364. Id. at 154. [13] Rollo, pp. 89-90. [14] Id. at 150. [15] Rollo, p. 151. [16] Id. at 16. [17] Id. at 151. [18] Id. at 86. [19] Rollo, pp. 47-48. [20] Id. at 65. [21] Id. at 328. [22] Rollo, p. 323. [23] Id. at 105 [24] Id. at 107. [25] Rollo, p. 109. [26] Id. at 108. [27] Id. at 109. [28] Id. at 46. [29] Rollo, pp. 55-56. [30] Rollo, p. 110. [31] Id. at 62. [32] Id. at 79-80. [33] Rollo, p. 85. [34] Id. at 163. [35] Id. at 18. [36] Rollo, p. 164. [37] Underscoring supplied. [38] Concurring Opinion of Commissioner F.A. Tuason, Jr., COMELEC Second Division Resolution dated July 16, 2004; Rollo, pp. 58-59. [39] Rollo, pp 72-73. [40] Section 241 of the Omnibus Election Code. [41] Section 242, Id. [42] Bandala v. Commission on Elections, G.R. No. 159369, 3 March 2004, 424 SCRA 267. [43] Abella v. Larrazabal, G.R. Nos. 87721-30, 21 December 1989, 180 SCRA 509. See also Sema v. COMELEC, 347 SCRA 633 (2000). [44] G.R. No. 123648, 15 December 1997, 283 SCRA 349. [45] Underscoring supplied. [46] G.R. Nos. 86362-63, October 27, 1989, 178 SCRA 746. [47] G.R. Nos. 86362-63, October 27, 1989, 178 SCRA 746, p.754. [48] Rollo, p. 75. [49] Id. at 247. [50] Lorenzo v. COMELEC, G.R. No. 158371, 11 December 2003, 418 SCRA 448 citing Albano v. Arranz, 4 SCRA 386 (1962); Demafiles v. COMELEC, 21 SCRA 1461 (1967); Aguam v. COMELEC, 23 SCRA 883 (1968). [51] Rollo, p. 70. [52] Utto v. Comelec, G.R No. 150111, January 31, 2002, 375 SCRA 523. [53] Ibid. [54] Id. [55] Lorenzo v. COMELEC, supra. [56] Ibid. [57] Utto v. COMELEC, supra. [58] Id. citing Aguam v. COMELEC, 23 SCRA 883 (1968).

Election Law; Speedy Disposition of Cases; By their very nature and given the public interest involved in the determination of the results of an election, the controversies arising from the canvass must be resolved speedily, otherwise the will of the electorate would be frustrated.In Baltazar vs. Commission of Elections, we held: By their very nature and given the public interest involved in the determination of the results of an election, the controversies arising from the canvass must be resolved speedily, otherwise the will of the electorate would be frustrated. And the delay brought about by the tactics resorted to by petitioner is precisely the very evil sought to be prevented by election statutes and controlling case law on the matter. We thus find that the HRET did not commit grave abuse of discretion in dismissing petitioners election protest. If at all, she has only herself to blame for her predicament. [Hofer vs. House of Representatives Electoral Tribunal, 428 SCRA 383(2004)] DECISION SANDOVAL-GUTIERREZ, J.: Procedural rules in election cases are designed to achieve not only a correct but also an expeditiousdetermination of the popular will of the electorate.1 Unfortunately, the interpretation of said rules by the petitioner has prolonged the termination of the instant case. Before us is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, assailing the Resolutions2 dated March 27, 2003 and May 8, 2003 rendered by the House of Representatives Electoral Tribunal in HRET Case No. 01-006, entitled "Dulce Ann K. Hofer vs. Belma A. Cabilao." The antecedents of the present petition are as follows: Dulce Ann K. Hofer, herein petitioner, and Belma A. Cabilao, herein respondent, were congressional candidates in the lone congressional district of Zamboanga Sibugay3 during the May 14, 2001 national and local elections. On May 18, 2001, respondent was proclaimed the duly elected congressional representative with a total of 55,740 votes, as against petitioners 43,566, or a margin of 12,174 votes. Claiming that massive vote buying, tampering of election returns and other irregularities were committed in 671 precincts during the voting, counting of votes and canvassing of election returns, petitioner, on May 28, 2001, filed with the House of Representatives Electoral Tribunal (HRET) an election protest, docketed as HRET Case No. 01006. After the issues were joined, the case was set for preliminary conference on September 13, 2001. Subsequently or on July 22, 2002, the revision proceeding of contested ballots, pursuant to Section 35 of the 1998 HRET Rules, as amended, commenced with the identification by petitioner of the total contested precincts. On August 1, 2002, the revision of the ballots for 481 pilot contested precincts was completed. The Report of the Canvass Board Service on the results of the revision shows a reduction of votes for petitioner and respondent, thus:

Votes before Revision Protestant Protestee 18,138 23,793

Votes after Revision 17,799 23,492

Claims 1,094 1,425

Gain (+) Loss (-) 339 (-) 301 (-)

G.R. No. 158833. May 12, 2004.* DULCE ANN K. HOFER, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and BELMA C. CABILAO, respondents.

During the preliminary conference, both parties, through their respective counsel, agreed on the following dates of hearing: October 15, 16, 29, 30, November 5, 6 and 18, 2002 at 9:30 oclock in the morning and 1:30 oclock in the

afternoon. The Hearing Commissioner informed them that they could set succeeding dates later. However, the hearings set on October 15, 16, 30 and November 5 and 6, 2002 were cancelled at the instance of petitioner. Only the hearing on October 29, 2002 took place. On February 12, 2003, respondent filed a motion to dismiss the protest for petitioners failure to prosecute for an unreasonable period of time. In a Resolution dated March 27, 2003, the HRET granted the motion and dismissed petitioners election protest, ratiocinating thus: "We find the long delay in the prosecution of this election protest to be inexcusable. A perusal of the records reveal that out of the seven (7) hearing dates set by protestant for the reception of her evidence, six (6) settings were postponed through her instance. Only one hearing on the 29th of October 2002 proceeded, in which hearing the protestant presented documentary evidence consisting of election documents. It may be stressed that protestant, despite the lapse of more than six (6) months, reckoned from October 15, 2002, has not yet completed the presentation of her evidence. Having exhausted the period of twenty (20) days and having been granted an extension of ten (10) days without presenting all her evidence, protestant is deemed to have slept on her right. Her failure to take necessary steps to prosecute this case justify its dismissal. xxx Rule 59 of the 1998 HRET Rules lays down the period allotted to each party in the presentation of his evidence, thus: RULE 59. Time Limit for Presentation of Evidence. - Each party is given a period of twenty (20) working days, preferably successive, to complete the presentation of his evidence, including the formal offer thereof. This period shall begin to run from the first date set for the presentation of the partys evidence, either before the Tribunal or before a Hearing Commissioner. Once commenced, presentation of the evidence-in-chief shall continue every working day until completed or until the period granted for such purpose is exhausted. Upon motion based on meritorious grounds, the Tribunal may grant a ten-day extension of the period herein fixed. The hearing for any particular day or days may be postponed or cancelled upon the request of the party presenting evidence, provided, however; that the delay caused by such postponement or cancellation shall be charged to said partys period for presenting evidence. Simply stated, each party is given a limited period of twenty (20) days in the presentation of his evidence, including the formal offer thereof. This requirement in the presentation of evidence is prompted by the nature of election contest, which should be decided as soon as practicable. The period of 20 days given to each of the parties may be extended by the Tribunal upon meritorious grounds and on motion of the party concerned. This time limit prescribed by the Rules in the presentation of evidence contemplates not only actual period spent in presenting before the Tribunal, but also the period used in the taking of deposition of the witnesses under Rule 61 of the 1998 HRET Rules." Petitioner then filed with the HRET a motion for reconsideration but was denied in a Resolution dated May 8, 2003. Hence, this petition for certiorari. Petitioner contends that the HRET acted with grave abuse of discretion in dismissing her protest on mere technicalities, thus, depriving her of her right to due process.

The Solicitor General, in his comment, maintains that the HRET did not gravely abuse its discretion in dismissing petitioners protest considering that she failed to prosecute it within the period allowed by the rules. Petitioner invokes our ruling in Arao vs. COMELEC4 that "the choice of the people to represent them may not be bargained away by sheer negligence of a party, nor defeated by technical rules of procedure." What she is saying is that the laws governing election contests, especially appreciation of ballots and returns, must be liberally interpreted to the end that the will of the electorate in the choice of public officials may not be defeated by technical infirmities. We are not convinced. The election protest filed by petitioner is a serious charge which, if true, could unseat protestee as Representative of her district. Hence, the observance of the HRET Rules in conjunction with our own Rules of Court, must be taken seriously. Section 59 of the 1998 HRET Rules, quoted earlier, is explicit. Unfortunately, petitioner did not comply with it. In fact, despite the lapse of six (6) months (starting October 15, 2002 initial date of hearing), she failed to present her evidence. Such inaction shows her utter lack of interest to prosecute her case. In Baltazar vs. Commission of Elections,5 we held: "By their very nature and given the public interest involved in the determination of the results of an election, the controversies arising from the canvass must be resolved speedily, otherwise the will of the electorate would be frustrated. And the delay brought about by the tactics resorted to by petitioner is precisely the very evil sought to be prevented by election statutes and controlling case law on the matter." We thus find that the HRET did not commit grave abuse of discretion in dismissing petitioners election protest. If at all, she has only herself to blame for her predicament. WHEREFORE, the petition is DISMISSED. No pronouncement as to costs. SO ORDERED. Davide, Jr., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, CarpioMorales, Callejo, Sr., Azcuna, and Tinga, JJ., concur. Footnote
1 2

Gementiza vs. Commission on Elections, G.R. No. 140884, March 6, 2001, 353 SCRA 724. Annexes "A" and "B", Petition for Certiorari, Rollo at 35-49. 3 Former Third District of Zamboanga del Sur. 4 G.R. No. 103877, June 23, 1992, 210 SCRA 290. 5 G.R. No. 140158, January 29, 2001, 350 SCRA 518, 526-527.

G.R. No. 167033. April 12, 2006.* ESTRELITA NENG JULIANO, petitioner, vs. COMMISSION ON ELECTIONS AND MUSLIMIN SEMA, respondents.

Election Law; Commission on Elections (COMELEC) Rules of Procedure; Grave Abuse of Discretion; Considering that the Resolution of the 2nd Division of the COMELEC was affirmed merely because the voting of the COMELEC En Banc was equally divided, the Supreme Court is compelled to look deeper into the case.It is well-settled that unless the COMELEC is shown to have committed grave abuse of discretion, its decision will not be interfered with by this Court. Considering, though, that the Resolution of COMELEC 2nd Division dated October 13, 2004 was affirmed merely because the voting of the COMELEC En Banc on the Resolution dated February 10, 2005 penned by Commissioner Rufino S.B. Javier (which reversed and set aside the Resolution dated October 13, 2004), was equally divided, this Court is compelled to look deeper into this case. Same; Same; Rehearing and Reconsultation; Words and Phrases; A re-consultation is definitely not the same as a re-hearing: Rehearing is defined as a second consideration of cause for purpose of calling to the courts or the administrative boards attention any error, omission or oversight in first consideration; Rehearing clearly presupposes the participation of the opposing parties for the purpose of presenting additional evidence if any, and further clarifying and amplifying their arguments; A reconsultation means a second deliberation of persons on some subject. Section 6, Rule 18 of the Comelec Rules of Procedure specifically states that if the opinion of the Comelec En Banc is equally divided, the case shall be re-heard. The Court notes, however, that the Order of the Comelec En Banc dated February 10, 2005 clearly stated that what was conducted was a mere re-consultation. A re-consultation is definitely not the same as a rehearing. A consultation is a deliberation of persons on some subject; hence, a re consultation means a second deliberation of persons on some subject. Rehearing is defined as a second consideration of cause for purpose of calling to courts or administrative boards attention any error, omission, or oversight in first consideration. A retrial of issues presumes notice to parties entitled thereto and opportunity for them to be heard (Emphasis supplied). But as held in Samalio v. Court of Appeals, 454 SCRA 462, 472 (2005), A formal or trial-type hearing is not at all times and in all instances essential. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. Thus, a rehearing clearly presupposes the participation of the opposing parties for the purpose of presenting additional evidence, if any, and further clarifying and amplifying their arguments; whereas, a re-consultation involves a re-evaluation of the issues and arguments already on hand only by the members of the tribunal, without the participation of the parties. Same; Same; Grave Abuse of Discretion; When the COMELEC En Banc fails to give a party the rehearing required by the COMELEC Rules of Procedure, said body acts with grave abuse of discretion. In Belac v. Comelec, 356 SCRA 394 (2001), when the voting of the Comelec En Banc on therein petitioners motion for reconsideration was equally divided, the Comelec En Banc first issued an order setting the case for hearing and allowed the parties to submit their respective memoranda before voting anew on therein petitioners motion for reconsideration. This should have been the proper way for the Comelec En Banc to act on herein petitioners motion for reconsideration when the first voting was equally divided. Its own Rules of Procedure calls for a rehearing where the parties would have the opportunity to strengthen their respective positions or arguments and convince the members of the Comelec En Banc of the merit of their case. Thus, when the Comelec En Banc failed to give petitioner the rehearing required by the Comelec Rules of Procedure, said body acted with grave abuse of discretion. [Juliano vs. Commission on Elections, 487 SCRA 263(2006)] DECISION AUSTRIA-MARTINEZ, J.: This resolves the petition for certiorari, filed by Estrelita "Neng" Juliano (petitioner), seeking to set aside the Order of the Commission on Elections En Banc (COMELEC En Banc) dated February 10, 2005 which affirmed the Resolution dated October 13, 2004 of the COMELEC 2nd Division dismissing the pre-proclamation controversy filed by petitioner Estrelita "Neneng" Juliano. A thorough scrutiny of the records reveals that the narration of the antecedent facts set forth in the COMELEC 2nd Division Resolution is undisputed; hence, portions thereof are reproduced hereunder:

The factual allegations of both parties reveal that Cotabato City has a total of five hundred seventy-seven (577) clustered polling precincts distributed among thirty-seven (37) barangays; that the first City Board of Canvassers chaired by Atty. Yogie Martirizar convened on May 10, 2004 and conducted its proceedings until May 16, 2004; that on May 12, 2004, however, petitioner filed an ex parte petition to replace membership of the first CBOC and was granted by the Commission; that the second CBOC was chaired by Atty. Jubil Surmieda and conducted canvassing proceedings from May 16 to 22, 2004; that petitioner also sought the transfer of the canvassing from the Session Hall of the Sangguniang Panlungsod to the 6th ID camp, Awang, Maguindanao; that the Surmieda Board also failed to finish the canvassing and was replaced by another CBOC chaired by Atty. Lintang Bedol, which conducted the canvassing from May 24 to May 29, 2004; that this canvassing was interrupted by another petition filed by Juliano praying for the transfer of the canvassing from Awang, Maguindanao to the Comelec main office in Manila, which was again granted by the Commission; that the new venue of the canvassing was held at the Session Hall of the Comelec main office in Manila; that a notice was issued on May 29, 2004 by the Bedol Board stating that the resumption of canvassing in Manila will be on "Wednesday, June 2, 2004, at 2:00 ocl ock in the afternoon"; that despite the notice, the Bedol Board resumed its canvassing on June 1, 2004 at 1:45 p.m. at the Comelec Session Hall, promulgated its rulings on all contested returns, denying all petitions for exclusion from canvass of the contested returns, canvassed the election returns, then entered and tallied into the statement of votes the figures and proclaimed the winning candidates; that the Bedol Board proclaimed respondent Sema as the duly elected Mayor of Cotabato City; that petitioner filed on June 2, 2004 a consolidated petition to nullify canvass proceedings and/or proclamation undertaken by the CBOC on June 1, 2004. Petitioner raised the following issues as a ground to nullify respondents proclamation, to wit: 1. Petitioner was never notified of the new and advanced schedule of the resumption of canvassing in the Comelec Main Office, Manila, hence, the proceedings was illegal; 2. There are 108 contested election returns which petitioner alleged to be spurious and manufactured, and will adversely affect the result of the election if the respective votes of the parties be deducted from the final tally; 3. In relation to issue number 2, CBOC should have suspended the proclamation as prescribed in Section 36, par. f of Resolution No. 6669 of the Commission; 4. There are 54 election returns included by the CBOC in the canvassing but which were not part of the inventory conducted by the Surmieda Board;1 (Emphasis supplied) The COMELEC 2nd Division issued its Resolution dated October 13, 2004 ruling that: x x x the allegations of the petitioner in relation to the 108 returns cannot be properly resolved in this preproclamation controversy as it would require the Commission to go beyond the face of the election returns, in order to find out that the same were really manufactured and spurious. Furthermore, upon perusal of the returns, We find the same to be in order. This finding is, however, without prejudice to the filing of the proper election protest in order that a thorough evaluation of the returns will be conducted, which may include the examination of the signatures of the Board of Election inspectors." 21avvphil.net With regard to the alleged lack of notice to petitioner of the June 1, 2004 canvassing, the COMELEC 2nd Division held that petitioner should be deemed notified of the June 1, 2004 canvassing because during said proceedings, one of petitioners counsel, Atty. Javines, was present along with petitioners watchers. Thus, the dispositive portion, to wit: WHEREFORE, premises considered, the present pre-proclamation controversy praying for the nullification of the proclamation of respondent Muslimin Sema is hereby DISMISSED for lack of merit, without prejudice, however, to the filing of the proper election protest.3

On October 23, 2004, petitioner filed a motion for reconsideration.1avvphil.net On January 17, 2005, she filed her own Affidavit of Disavowal, stating that she never engaged the legal services of Atty. Ronald Javines (Annex "H")4 and the Affidavit of Atty. Ronald Javines, corroborating petitioners statement in her affidavit (Annex "I"). 5 Petitioners motion for reconsideration was elevated to the COMELEC En Banc and Commissioner Rufino S.B. Javier was assigned as ponente. A Resolution under the ponencia of said Commissioner was issued on February 10, 2005, the dispositive portion of which reads as follows: WHEREFORE, premises considered, the Motion for Reconsideration is hereby GRANTED. The Resolution of the Commission (Second Division) promulgated last October 13, 2004 is REVERSED and SET ASIDE. The proclamation of Respondent Muslimin Sema is ANNULLED as the proceedings attendant thereto is illegal. The Election Records and Statistics Division is hereby directed to conduct an examination whether or not the one hundred eight (108) election returns involved in this case are, as claimed by the petitioner, written by one. The examination must be done within ten (10) days from receipt hereof and the ERSD should submit its report to the Commission en banc on the matter within ten (10) days from termination of the examination. Thereafter, the Commission en banc shall immediately evaluate the report and set the case for hearing if there is a need therefore. Forthwith, we shall issue a Resolution on the issue of exclusion of the contested election returns. In the meantime, the vice-mayor shall temporarily assume the position of Mayor of Cotabato City. 6 However, only three members7 of the COMELEC En Banc voted in favor of granting the Motion for Reconsideration, three members8 dissented, and one9 member took no part. Section 6, Rule 18 of the Comelec Rules of Procedure provides: Sec. 6. Procedure if Opinion is Equally Divided. When the Commission en banc is equally divided in opinion, or the necessary majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied. After "re-consultation", the members chose to maintain their votes. Upon failing to obtain a majority vote on the Resolution dated February 10, 2005, the COMELEC En Banc issued the Order also dated February 10, 2005, the dispositive portion of which reads as follows: PREMISES CONSIDERED, after due re-consultation of the results of the en banc voting which remains to be 3:3:1, pursuant to Sec. 6, Rule 18 of the Comelec Rules of Procedure, the resolution of the Second Division subject of the Motion for Reconsideration is hereby AFFIRMED. SO ORDERED.10 Hence, petitioner filed the present petition for certiorari raising the following issues: WHETHER OR NOT THE LACK OF NOTICE BY THE BEDOL BOARD TO PETITIONER AND/OR PETITIONERS COUNSEL ON THE RESUMPTION OF CANVASS ON JUNE 1, 2004 TO THE TRANSFERRED VENUE AT THE SESSION HALL OF THE MAIN OFFICE OF PUBLIC RESPONDENT IN INTRAMUROS, MANILA WAS CURED BY THE PRESENCE OF PETITIONERS WATCHER AND ATTY. RONALD B. JAVINES, WHO APPEARED AS COUNSEL FOR KNP/PMP CONGRESSIONAL CANDIDATE BAI ZENY G. DILANGALEN AND KNP/PNP [sic] SENATORIAL CANDIDATE DIDAGEN P. DILANGALEN; and WHETHER OR NOT PUBLIC RESPONDENT HAS THE POWER TO (i) DETERMINE AUTHENTICITY OF ELECTION RETURNS; (ii) INVESTIGATE BEYOND THE RETURNS; AND (iii) ADOPT MEANS AND METHODS TO ASCERTAIN AUTHENTICITY OF ELECTION RETURNS.|avvphi|.net

Respondent, on the other hand, argues that the petition should be dismissed outright because petitioner failed to allege grave abuse of discretion committed by the COMELEC En Banc and its 2nd Division. Indeed, it is well settled that "unless the COMELEC is shown to have committed grave abuse of discretion, its decision will not be interfered with by this Court."11 Considering, though, that the Resolution of COMELEC 2nd Division dated October 13, 2004 was affirmed merely because the voting of the COMELEC En Banc on the Resolution dated February 10, 2005 penned by Commissioner Rufino S.B. Javier (which reversed and set aside the Resolution dated October 13, 2004), was equally divided, this Court is compelled to look deeper into this case. Section 6, Rule 18 of the Comelec Rules of Procedure specifically states that if the opinion of the Comelec En Banc is equally divided, the case shall be reheard. The Court notes, however, that the Order of the Comelec En Banc dated February 10, 2005 clearly stated that what was conducted was a mere "re-consultation." A "re-consultation" is definitely not the same as a "rehearing". A consultation is a "deliberation of persons on some subject;"12 hence, a re-consultation means a second deliberation of persons on some subject. Rehearing is defined as a "second consideration of cause for purpose of calling to courts or administrative boards attention any error, omission, or oversight in first consideration. A retrial of issues presumes notice to parties entitled thereto and opportunity for them to be heard"13 (Emphasis supplied). But as held inSamalio v. Court Of Appeals,14 A formal or trial-type hearing is not at all times and in all instances essential. The requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. Thus, a rehearing clearly presupposes the participation of the opposing parties for the purpose of presenting additional evidence, if any, and further clarifying and amplifying their arguments; whereas, a re-consultation involves a re-evaluation of the issues and arguments already on hand only by the members of the tribunal, without the participation of the parties. In Belac v. Comelec,15 when the voting of the Comelec En Banc on therein petitioners motion for reconsideration was equally divided, the Comelec En Banc first issued an order setting the case for hearing and allowed the parties to submit their respective memoranda before voting anew on therein petitioners motion for reconsideration. This should have been the proper way for the Comelec En Banc to act on herein petitioners motion for reconsideration when the first voting was equally divided. Its own Rules of Procedure calls for a rehearing where the parties would have the opportunity to strengthen their respective positions or arguments and convince the members of the Comelec En Banc of the merit of their case. Thus, when the Comelec En Banc failed to give petitioner the rehearing required by the Comelec Rules of Procedure, said body acted with grave abuse of discretion. IN VIEW OF THE FOREGOING, the petition is GRANTED. The case is REMANDED to the COMELEC En Banc. The COMELEC En Banc is ORDERED to conduct forthwith the rehearing required under the COMELEC Rules of Procedure and render the appropriate decision thereon. SO ORDERED. Footnotes
1 2

Resolution dated October 13, 2004, Rollo, pp. 68-69 Id., p. 70. 3 Id., pp. 71-72. 4 Rollo, pp. 136-142.

5 6

Rollo, p. 143. Rollo, pp. 78-79. 7 Chairman Benjamin S. Abalos, Sr. and Commissioners Rufino S.B. Javier and Resurreccion Z. Borra. 8 Commissioners Mehol K. Sadain, Florentino A. Tuason, Jr. and Manuel A. Barcelona, Jr. 9 Commissioner Virgilio O. Garcillano. 10 Rollo, p. 91. 11 Sarangani vs. Commission on Elections, G.R. Nos. 155560-62, November 11, 2003, 415 SCRA 614, 623. 12 Blacks Law Dictionary, p. 286, 5th Ed. (1979) 13 Blacks Law Dictionary, p. 1157, 5th Ed. (1979), citing Yee v. State Board of Equalization of California, 16 Cal. App. 2nd 417, 60 P. 2d 322, 323. 14 G.R. No. 140079, March 31, 2005, 454 SCRA 462, 472. 15 G.R. No. 145802, April 4, 2001, 356 SCRA 394.

parties may litigate all the legal and factual issues raised by them inasmuch detail as they may deem necessary or appropriate. [Lucman vs. Commission on Elections, 462 SCRA 299(2005)] DECISION AUSTRIA-MARTINEZ, J.: Petitioner Bairansalam Laut Lucman and private respondent Mosama M. Pandi were mayoralty candidates in PoonaBayabao, Lanao del Sur, during the May 10, 2004 elections. During the canvassing of votes, private respondent objected to the inclusion of ten election returns, although only six of these are subjects of the present controversy, to wit: 1

G.R. No. 166229. June 29, 2005.* MS. BAIRANSALAM LAUT LUCMAN, petitioner, vs. COMMISSION ON ELECTIONS and MOSAMA M. PANDI, respondents. Election Law; Pre-Proclamation Controversies; Words and Phrases; A pre-proclamation controversy is any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political parties before the board or directly with COMELEC, or any matter raised under Sections 233, 234, 235 and 236 of the Omnibus Election Code in relation to the preparation, transmission, receipt, custody and appreciation of election returns.Section 241 of the Omnibus Election Code defines a pre-proclamation controversy as any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns. Under Section 243 of the same Code, the issues that may be raised in a pre-proclamation controversy, are as follows: SEC. 243. Issues that may be raised in pre-proclamation controversy.The following shall be proper issues that may be raised in a pre-proclamation controversy: (a) Illegal composition or proceedings of the board of canvassers; (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235, and 236 of this Code; (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. The foregoing enumeration is restrictive and exclusive. Same; Same; A pre-proclamation controversy is limited to an examination of the election returns on their face, and as a rule, the COMELEC is limited to an examination of the returns on their face; The proceedings in a preproclamation controversy are summary in nature.Pre-proclamation controversies are limited to challenges directed against the Board of Canvassers and proceedings before said Board relating to particular election returns to which private respondent should have made specific verbal objections subsequently reduced to writing. A pre-proclamation controversy is limited to an examination of the election returns on their face. As a rule, the COMELEC is limited to an examination of the election returns on their face. It is beyond the COMELECs jurisdiction to go beyond the face of the returns or investigate election irregularities. The proceedings in a pre-proclamation controversy are summary in nature. Reception of evidence aliunde, such as the List of Voters with Voting Record and the VRRs, is proscribed. Issues such as fraud or terrorism attendant to the election process, the resolution of which would compel or necessitate the COMELEC to pierce the veil of election returns which appear to be prima facie regular, on their face, are anathema to a pre-proclamation controversy. Such issues should be posed and resolved in a regular election protest, which is within the original jurisdiction of the Regional Trial Court (RTC). In a regular election protest, the

Precinct Number 1A

Election Returns Number 01201094

Objection/s 1) The election returns is obviously manufactured and/or falsified 2) It is not authentic 3) It contains alterations 1) Obviously manufactured 1) Obviously manufactured 2) Incomplete 1) Obviously manufactured and/or falsified 2) Incomplete 1) The election returns is obviously manufactured 2) It is incomplete, it lacks statistical data 1) Obviously manufactured

1B/C 3A 8A 8B/8C 14A/14B

01201091 01201095 01201093 01201106 01201096

The Municipal Board of Canvassers (Board) overruled private respondents objections on the disputed returns,2and proclaimed petitioner as the winning candidate, as shown in the Certificate of Canvass of Votes and Proclamation of the Winning Candidates for Municipal Offices, signed on May 19, 2004.3 Petitioner won over private respondent by a margin of 16 votes. Private respondent filed with Commission on Elections (COMELEC) an appeal from the ruling of the Board, docketed as SPC 04-184, alleging massive fraud and irregularities in the conduct of the elections, e.g., force, threat and intimidation were employed on the voters, double voting, substitution of voters, snatching of ballots, padding of ballots and existence of flying voters.4 Private respondent also contended that the contested election returns should have been excluded from the canvass, and that the Board was precipitate in proclaiming petitioner as the winning candidate, as private respondent has manifested on record that he is intending to appeal the Boards ruling. 5 Private respondent admits that the exclusion of the contested returns is a ground for election protest, but he also argues that the COMELEC may go beyond the face of the returns to determine whether the elections in the precincts involved are a sham. Private respondent also filed a motion to annul proclamation and/or to suspend the effects of proclamation pendente lite.6 Petitioner filed his Comment and/or Answer to the appeal, arguing that the grounds relied upon by private respondent are not proper in a pre-proclamation controversy but in an election protest. Petitioner also argues that her

proclamation is valid; the petition is defective for failure to include indispensable parties; and that private respondent failed to inform the Board that he is appealing its ruling, as required by Section 20 of Republic Act No. 7166, or The Electoral Reforms Law of 1991.7 On June 16, 2004, a hearing on the appeal was held, wherein counsel for petitioner and private respondent, and several Board of Election Inspectors of Poona-Bayabao appeared, and Ms. Monera P. Macadato, Poll Clerk of Precinct 3A was called to the witness stand.8 Presiding Commissioner Resurreccion Z. Borra, for the First Division, then issued an order on the same date, requiring the parties to submit their simultaneous memoranda. 9 On September 30, 2004, the COMELECs First Division issued the assailed order, with the following dispositive portion: In order therefore to resolve the issues raised in this Appeal the Commission (FIRST DIVISION) hereby ORDERS the document examiners of the Commission on Elections to conduct an examination of the List of Voters with Voting Record of the precincts involved in this case as well as the VRRs pertaining to the contested precincts in the Municipality of Poonabayabao to determine whether or not actual voting by the duly registered voters of said precincts were conducted during the elections of May 10, 2004; Considering that we have annulled the proclamation of BAIRAMSALAM (sic) LAUT LUCMAN as duly elected mayor of Poonabayabao, Lanao del Sur, it is hereby ordered that the Vice-Mayor of said Municipality assumed (sic) the position pursuant to the provisions of the Local Government Code, until the final resolution of this petition. SO ORDERED.10 Commissioner Virgilio O. Garcillano dissented to the majority opinion on the ground that the petition involves issues proper to an election protest and not a pre-proclamation controversy.11 Petitioner moved to reconsider the assailed Order, and in an Order dated October 13, 2004, Commissioner Borra ordered and certified the motion for reconsideration to the Commission en banc. 12 Thereafter, the Commission en banc, in an Order dated October 14, 2004, issued a temporary restraining order and a status quo ante order, directing the parties to maintain the status prevailing before the issuance of the September 30, 2004 Resolution. On December 14, 2004, the COMELEC en banc issued the assailed Resolution denying petitioners motion for lack of merit.13 The dispositive portion of said Resolution reads: WHEREFORE, in view of the foregoing, the Commission (en banc) RESOLVED, as it hereby RESOLVES to DENY the Motion for Reconsideration for lack of merit. The Order of the Commission (First Division) dated 30 September 2004 is hereby AFFIRMED. Accordingly, in implementation of the directive therein, the document examiners of the Commission on Elections are hereby ordered to conduct an examination of the List of Voters with Voting Record of the precincts involved in this case as well as the VRRs pertaining to the contested precincts in the Municipality of Poonabayabao to determine whether or not actual voting by the duly registered voters of said precincts were conducted during the elections of May 10, 2004, and thereafter submit a report thereon. The Temporary Restraining Order/Status Quo Ante Order dated 14 October 2004 is hereby lifted. SO ORDERED.14 On December 17, 2004, Commissioner Mehol Sadain issued a Constancia protesting his lack of participation in the En Banc Resolution. Commissioner Sadain stated that although he was out on official business at the time the Resolution was routed to his office, he should have been allowed to vote thereon, or at least, informed of the urgency of its promulgation so that he may cast his vote or allow its promulgation without his signature.15

Petitioner then filed the present special civil action for certiorari and prohibition with prayer for the issuance of temporary restraining order/preliminary injunction, based on the following grounds: PUBLIC RESPONDENT ACTED WITHOUT, IN EXCESS OR WITH GRAVE ABUSE OF DISCRETION IN ANNULLING THE PROCLAMATION OF THE PETITIONER. PUBLIC RESPONDENT ACTED IN EXCESS OR WITH GRAVE ABUSE OF DISCRETION IN ORDERING THE DOCUMENT EXAMINERS TO EXAMINE THE LIST OF VOTERS WITH VOTING RECORDS AND THE VRRs. PUBLIC RESPONDENT ACTED WITHOUT, IN EXCESS OR WITH GRAVE OF DISCRETION (sic) IN TAKING COGNIZANCE OF THE APPEAL WITHOUT THE INDISPENSABLE PARTIES IMPLEADED AND WITHOUT THE MANDATORY REQUIREMENTS OF SECTION 20, RA 7166 COMPLIED. PUBLIC RESPONDENT ACTED WITHOUT JURISDICTION IN TAKING COGNIZANCE OF THE MOTION TO RECONSIDER THE CHALLENGED INTERLOCUTORY ORDER OF SEPTEMBER 30, 2004. 16 The pivotal issue in this case is whether the appeal from the Board of Canvassers to the COMELEC (First Division) interjected by private respondent makes a case for a pre-proclamation controversy. Section 241 of the Omnibus Election Code defines a pre-proclamation controversy as "any question pertaining to or affecting the proceedings of the board of canvassers which may be raised by any candidate or by any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of the election returns." Under Section 243 of the same Code, the issues that may be raised in a pre-proclamation controversy, are as follows: SEC. 243. Issues that may be raised in pre-proclamation controversy. - The following shall be proper issues that may be raised in a pre-proclamation controversy: (a) Illegal composition or proceedings of the board of canvassers; (b) The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234, 235, and 236 of this Code; (c) The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously manufactured or not authentic; and (d) When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially affected the standing of the aggrieved candidate or candidates. The foregoing enumeration is restrictive and exclusive.17 In the present case, the objections initially raised by private respondent before the Municipal Board of Canvassers were proper in a pre-proclamation controversy, i.e., the election returns is obviously manufactured and/or falsified, it is not authentic, it contains alterations. However, in his appeal to the COMELEC, he further alleged that the elections held in the precincts clustered in the Pooni Lomabao Central Elementary were tainted with massive election irregularities. According to private respondent, there were "massive substitution of voters, snatching of ballots from the voters by people identified with the Lucman who filled them up against the will of the voters, force or coercion,

threats, intimidation, casting of votes by double registrants in the same precincts (double entry), and flying voters "18 Private respondent also alleged that the counting of votes on May 11, 2004, were not prepared simultaneously with the appreciation of the ballots/counting of votes, in violation of Section 44 of COMELEC Resolution No. 6667 (March 16, 2004). Also, private respondents watchers were threatened by petitioners watchers, forcing them to leave the counting room, and that the Board of Election Inspectors merely copied the entries on the tally boards and records of votes made by petitioners watchers. Finally, private respondent alleged that the denial to his objections to the contested election returns were not made by the Municipal Board of Canvassers in the prescribed form, and that despite his manifestation that he will appeal the Boards ruling on the returns, it proceeded with petitioners proclamation.19 Obviously, the foregoing allegations pertain not only to the preparation, transmission, receipt, custody and appreciation of the election returns, but to the conduct of the elections as well. Pre-proclamation controversies are limited to challenges directed against the Board of Canvassers and proceedings before said Board relating to particular election returns to which private respondent should have made specific verbal objections subsequently reduced to writing. A pre-proclamation controversy is limited to an examination of the election returns on their face. As a rule, the COMELEC is limited to an examination of the election returns on their face.20 It is beyond the COMELECs jurisdiction to go beyond the face of the returns or investigate election irregularities.21 The proceedings in a pre-proclamation controversy are summary in nature.22 Reception of evidence aliunde, such as the List of Voters with Voting Record and the VRRs, is proscribed. 23 Issues such as fraud or terrorism attendant to the election process, the resolution of which would compel or necessitate the COMELEC to pierce the veil of election returns which appear to be prima facie regular, on their face, are anathema to a pre-proclamation controversy. Such issues should be posed and resolved in a regular election protest, which is within the original jurisdiction of the Regional Trial Court (RTC).24 In a regular election protest, the parties may litigate all the legal and factual issues raised by them inasmuch detail as they may deem necessary or appropriate. 25 In Macabago vs. COMELEC,26 the Court reiterated: That the padding of the List of Voters may constitute fraud, or that the Board of Election Inspectors may have fraudulently conspired in its preparation, would not be a valid basis for a pre-proclamation controversy either. For, whenever irregularities, such as fraud, are asserted, the proper course of action is an election protest. Such irregularities as fraud, vote-buying and terrorism are proper grounds in an election contest but may not as a rule be invoked to declare a failure of election and to disenfranchise the greater number of the electorate through the misdeeds, precisely, of only a relative few. Otherwise, elections will never be carried out with the resultant disenfranchisement of the innocent voters, for the losers will always cry fraud and terrorism ( GAD vs. COMELEC, G.R. No. 78302, May 26, 1987, 150 SCRA 665). Hence, as correctly argued by petitioner, private respondents cause of action before the COMELEC is proper for an election protest and not a pre-proclamation controversy, and the COMELEC committed grave abuse of discretion in entertaining private respondents petition/appeal. Consequently, all subsequent actions by the COMELEC in relation to private respondents appeal are null and void, and correctible by the present special civil action for certiorari. Following the disposition of the Court in Macabago vs. COMELEC,27 the dismissal of private respondents petition/appeal before the COMELEC is without prejudice to the filing of a regular election protest before the proper RTC, the period for the filing of which is deemed suspended by the filing of private respondents petition/appeal. In light of the foregoing ruling, the Court need not delve on the other issues posed by petitioner as these necessarily have been rendered moot and academic28 thereby.

WHEREFORE, the petition is GRANTED. The assailed Order dated September 30, 2004 of the First Division and Resolution En Banc dated December 14, 2004 are SET ASIDE on ground of lack of jurisdiction. Private respondents appeal to the First Division and the appeal to the COMELEC En Banc are DISMISSED, without prejudice to the filing of a regular election protest, the period for the filing of which is deemed suspended by the filing of the petition before the COMELEC until the finality of herein decision. The proclamation of petitioner by the Municipal Board of Canvassers is maintained and petitioner should be allowed to assume her office as mayor of Poona-Bayabao, Lanao del Sur. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona, CarpioMorales, Callejo, Sr., Azcuna, Tinga, Chico-Nazario, and Garcia, JJ., concur. Footnotes
1 2

Rollo, pp. 63-68, Annexes "E" to "E-5." Id., pp. 69-72, Annexes "F" to "F-3." 3 Id., pp. 73-74, Annexes "G" to "G-1." 4 Id., pp. 82-83, Petition/Appeal. 5 Id., pp. 83-85. 6 Id., pp. 100-108. 7 Id., pp. 113-120, Answer and/or Comment. 8 Id., p. 160. 9 Ibid. 10 Id., pp. 52-53. 11 Id., pp. 54-56. 12 Id., pp. 258-259. 13 Id., pp. 41-45. 14 Id., pp. 44-45. 15 Id., pp. 282-283. 16 Id., pp. 19-20. 17 Dagloc vs. COMELEC, G.R. Nos. 154442-47, December 10, 2003, 417 SCRA 574, 590. 18 Rollo, p. 77. 19 Id., pp. 76-81. 20 Bandala vs. COMELEC, G.R. No. 159369, March 3, 2004, 424 SCRA 267, 274. 21 Matalam vs. COMELEC, G.R. No. 123230, April 18, 1997, 271 SCRA 733, 745. 22 Chu vs. COMELEC, G.R. No. 135423, November 29, 1999, 319 SCRA 482, 491. 23 Macabago vs. COMELEC, G.R. No. 152163, November 18, 2002, 392 SCRA 178, 185. 24 Ibid., p. 186. 25 Supra., Bandala case, p. 276. 26 Supra., Macabago case, p. 186. 27 Supra., Macabago case, p. 189. 28 Supra., Chu case, p. 494.

G.R. No. 165491. March 31, 2005.* ROBERT E. OLANOLAN, petitioner, vs. COMMISSION ON ELECTIONS and CELSO A. TIZON, respondents. Certiorari; Words and Phrases; The term grave abuse of discre-tion in its judicial sense, connotes capricious, despotic, oppressive or whimsical exercise of judgment as is equivalent to lack of jurisdiction; The word capricious usually used in tandem with the term arbitrary, conveys the notion of willful and unreasoning action. The term grave abuse of discretion, in its juridical sense, connotes, as Litton Mills, Inc. vs. Galleon Trader, Inc., and a host of

other cases teach, capricious, despotic, oppressive or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse must be of such degree as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and capricious manner by reason of passion and hostility. The word capricious, usually used in tandem with the term arbitrary, conveys the notion of willful and unreasoning action. Thus, when seeking the corrective hand of certiorari, a clear showing of caprice and arbitrariness in the exercise of discretion is imperative. Same; Certiorari is limited to resolving errors of jurisdictionit is not a remedy to correct errors of judgment. Consequent to the COMELECs en banc Order declaring its Second Divisions Resolution of March 31, 2004 final and executory, the assailed issuance by the latter of the corresponding writ of execution to implement said resolution can be sustained as correct and doubtless within its jurisdiction. Accordingly, petitioner is not entitled to a writ of certiorari, certiorari being limited to resolving only errors of jurisdiction; it is not a remedy to correct errors of judgment, if such be the case. In all, this Court finds that the COMELEC en banc committed no error in denying, for reasons stated in its assailed Order dated September 8, 2004, petitioners motion for reconsid eration of the Second Divisions Resolution of March 31, 2004. Election Law; Moot and Academic Questions; An issue becomes moot and academic when it ceases to present a justiciable controversy so that a determination thereof would be without practical use and valuein such cases, there is no actual substantial relief to which a petitioner would be entitled to and which would be negated by the dismissal of the petition.Given the foregoing premises, there is hardly any need to delve into the question of whether grave abuse of discretion attended the issuance by the COMELEC of an Entry of Judgment on the assailed Second Divisions March 31, 2004 Resolution that led to the issuance of the corresponding writ of execution. Such issue has been rendered moot and academic by this disposition. An issue becomes moot and academic when it ceases to present a justifiable controversy so that a determination thereof would be without practical use and value. In such cases, there is no actual substantial relief to which a petitioner would be entitled to and which would be negated by the dismissal of the petition. [Olanolan vs. Commission on Elections, 454 SCRA 807(2005)] DECISION GARCIA, J.: Coming to this Court via this verified petition for certiorari, prohibition and mandamus under Rule 65 of the Rules of Court, with prayer for injunctive relief, petitioner Robert E. Olanolan urges us to nullify and set aside the en banc Order[1] dated September 8, 2004 of respondent Commission on Elections (COMELEC) in EAC No. 612003 denying his motion for reconsideration of an earlier Resolution[2] dated March 31, 2004 of the Commissions Second Division, the nullification of which, along with said Divisions other incidental issuances, are likewise sought in this recourse. The factual antecedents are, as follows: Petitioner Roberto E. Olanolan (Olanolan) and private respondent Celso A. Tizon (Tizon) were among the candidates for the position of punong barangay of Barangay 76-A, Bucana, Davao City in the July 15, 2002 barangay elections. After the voting exercise and canvass, Olanolan was proclaimed the winning candidate, having garnered a total of 4,278 votes as against the 4,268 votes for Tizon, the second placer, or a margin of ten (10) votes. Tizon attributed his loss to anomalies allegedly perpetrated by, among others, the chairperson, poll clerks and members of the Board of Election Inspectors (BEI). Accordingly, on July 25, 2002, he filed before the Municipal Trial Court in Cities (MTCC), Davao City an election protest,[3] docketed as Election Case No. 844-G-2002, which was eventually raffled to Branch 7 of the court. In it, Tizon prayed for the revision of ballots cast in seventy (72) two precincts located at Bucana Elementary School and thereafter the nullification of Olanolans proclamation and his (Tizons) proclamation as the elected punong barangay of Barangay 76-A, Bucana, Davao City. Inasmuch as Olanolans answer with counter-protest was belatedly filed, the MTCC would, as stated in its decision, infra, enter a general denial for him.

Subsequent developments saw the constitution by the MTCC of a 3-man revision committee which, after conducting a revision and recounting of ballots in the contested precincts, submitted a Revision Committee Report dated September 19, 2002.[4] During the protest proceedings, it was observed that the ballots used in two (2) of the contested precincts, i.e., Precincts No. 598-A and 608-A, were without COMELEC watermarks and other security features. In fact, page 6[5] of the revision report contained the following entries: B) In precinct 598A with a total number of 56 votes for OLANOLAN and 29 for TIZON was excluded from the recounting on the following grounds: 1) That the color of the ballots is different from the ballots which were already recounted taken from the previous boxes; That upon examination, the ballots in this precinct do not have security code shadow while in the other ballots which were already recounted from the previous ballot boxes have their security code shadow.

2)

In the same proceedings, the BEI chairman of Precinct No. 598-A, Benigno Silvosa, admitted to receiving from the Davao City Treasurers Office the election paraphernalia for that precinct the day before actual voting and then bringing home the same to his residence.[6] On December 18, 2002, the MTCC rendered judgment[7] dismissing Tizons election protest mainly on the strength of the following premises: In the case of Marcelino Libanan vs. House of Representatives Electoral Tribunal and Jose Ramirez, G.R. No. 129783, December 22, 1997, the court affirmed the ruling of the Tribunal in . . . HRET Case No. 95-020 to the effect that a ballot without BEI chairmans signature at the back is valid and not spurious, provided that it bears any of these other authenticating marks, to wit: (a) the COMELEC watermark (b) in cases where the COMELEC watermarks are blurred or not readily apparent, the presence of blue and red fibers in the ballot. In the instant action, petitioner [i.e.,Tizon] failed to show convincing proof that the absence of the COMELEC watermarks particularly on ballots belonging to Precinct 578-A [should have been Precinct 598-A] rendered the same invalid. Nonetheless, even if the COMELEC watermarks are not visible to the naked eye, the ballots under this precinct bore the initial of the BEI chairman at the back of the same. As held, it is only when none of these marks appears extant that the ballot can be considered spurious and subject to rejection. xxx xxx xxx

The allegation in the Petition . . . which refers to anomalous conduct of the Chairman of the BEI of Precinct 598-A . . . in the person of Ben Silvosa was unsubstantiated. The court is convinced the alleged anomaly did not exist. (Words in bracket added). In time, Tizon appealed to the COMELEC whereat his recourse was docketed as EAC No. 61-2003. On March 31, 2004, the Second Division of the COMELEC issued a Resolution,[8] setting aside the appealed decision of the MTCC and declaring Tizon, as protestant-appellant thereat, the duly elected Punong Barangay of Barangay 76-A, Bucana, Davao City in the July 15, 2002 barangay elections having obtained a total of 4,221 votes as against the protestee-appellees 4,196 or a margin of 25 votes. The Second Division ratiocinated: On the other hand, a cursory reading of the questioned decision of the court a quo reveals flaws and/or shortcomings that militate against the validity of the findings and conclusions contained in said decision. Predicated therefrom, we find it necessary to disabuse the minds of the parties anent their contentious allegations by examining and appreciating the ballots and all election documents the results hereunder discussed.

Petitioner Olanolan received a copy of the resolution on April 14, 2004. Two days thereafter, April 16, he filed, via registered mail, a Motion for Reconsideration.[9] For his part, private respondent Tizon sought, in an earlier motion,[10] the execution of the aforementioned March 31, 2004 Resolution of the COMELECs Second Division. Pursuant to an Order of April 26, 2004,[11] the Second Division elevated Olanolans Motion for Reconsideration (MR), together with the case records, to the COMELEC en banc, noting that only seven (7) sets of the said MR were filed and that no payment of the required motion fee was made by movant . In the same Order, the Second Division likewise elevated to the en banc Tizons motion for execution pending appeal. Barely a week after, or on May 4, 2004, petitioner Olanolan submitted a manifestation[12] enclosing therewith a postal money order in the amount of P500.00 to cover the required legal fees for his Motion for Reconsideration. In the herein assailed Order dated September 8, 2004,[13] the COMELEC en banc denied the desired reconsideration on account of Olanolans, as movant therein, failure to pay the motion fee and to submit the required number of copies of his motion for reconsideration. In the same Order, the COMELEC en banc directed the Second Divisions commission clerk to immediately issue an Entry of Judgment and the Chief of the Judicial Records Division to remand to the MTCC the records of the case, stating in this regard the following: Considering that there is no valid motion [for reconsideration] to speak of, the provision of Section 13 (c), Rule 18 of the COMELEC Rules of Procedure applies, to wit: Sec. 13. Finality of Decisions or Resolution. xxx

voters of Barangay 76-A, Bucana, Davao City. It is, he adds, thus gravely abusive of discretion on the part of the COMELEC en banc to predicate its assailed denial action on non-compliance with such technical requirements. We are not persuaded. The term grave abuse of discretion, in its juridical sense, connotes, as Litton Mills Inc. Inc. vs. Galleon Trader, Inc.,[17] and a host of other cases teach, capricious, despotic, oppressive or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse must be of such degree as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, as where the power is exercised in an arbitrary and capricious manner by reason of passion and hostility.[18] The word capricious, usually used in tandem with the term arbitrary, conveys the notion of willful and unreasoning action. Thus, when seeking the corrective hand of certiorari, a clear showing of caprice and arbitrariness in the exercise of discretion is imperative. As it were, the COMELEC en banc, in issuing its assailed Order dated September 8, 2004,[19] did no more than follow its own rules issued pursuant to no less than to its constitutional mandate to promulgate its rules of procedure to expedite disposition of election cases [20] as well as to issue its own rules concerning pleadings and practice before it or before any of its offices . . . . [21] The rules on payment of legal fees and submission of pleadings are embodied in the COMELEC Rules of Procedure, specifically Section 7(f) of Rule 40 and Section 1, Rule 7, thereof, pertinently providing, respectively, as follows: Rule 40, Section 7(f): Sec. 7. Legal Fees. The following legal fees shall be charged and collected.

(c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special actions and Special cases andafter fifteen (15) days in all other actions or proceedings, following its promulgation. hence, the Resolution promulgated by this Commission (Second Division) on March 31, 2004, copy of which was received by protestee-appellees counsel on April 14, 2004, had become final and executory on April 15, 2004. (Italics and underlining in the original). After the decreed issuance of Entry of Judgment, the COMELECs Special Second Division, acting on Tizons earlier motion to execute the questioned March 31, 2004 Resolution of the Division, directed, in its Order of September 16, 2004,[14] the issuance of the corresponding writ, which the division clerk did issue on even date.[15] Hence, petitioner Olanolans present recourse, claiming in gist, that the COMELEC en banc acted in grave abuse of discretion amounting to lack or in excess of jurisdiction in 1. denying his motion for reconsideration of the March 31, 2004 Resolution of the Second Division on grounds of non-payment of legal fees and non-submission of the required copies of the motion; and 2. declaring the same Resolution as final and executory on April 15, 2004, or fifteen (15) from its promulgation on March 31, 2004, on the theory that his motion for reconsideration of such resolution is, for all intents and purposes, not filed. Petitioner Olanolan also imputes grave abuse of discretion on the part of the Second Division in reversing the MTCC decision and in ordering the issuance of a writ of execution that eventually led to the implementation of its (Second Divisions) March 31, 2004 Resolution. In the Courts en banc Resolution of November 9, 2004, we directed the parties to observe the status quo prevailing before the issuance of the assailed resolution and order of the COMELEC. [16] In compliance with this injunction, the Department of the Interior and Local Government took the necessary measures which eventually enabled petitioner Olanolan to actually assume the office of punong barangay on December 6, 2004. It is petitioners posture in this recourse that the twin requirements on payment of fee for motion for reconsideration and the submission of the necessary number of copies of such motion are not jurisdictional caveat, but partake of the nature of mere technical rules which should not be made to prevail over the collective will of the

xxx

xxx

xxx

(f) For filing of a motion for reconsideration on a decision, order or resolution . . . . . . . . . . . . . . . . . . . . . . . . . . . P500.00 (as amended) Rule 7, Section 1: Sec. 1. Filing of Pleadings. Every pleading, motion and other papers must be filed in ten (10) legible copies. xxx,. Complementing the aforequoted Section 7(f) of Rule 40 is the succeeding Section 18 of the same Rule, prescribing the COMELECs option in case of non-payment of prescribed fees, thus: Sec. 18. Non-payment of prescribed fees. If the fees above prescribed are not paid, the Commission may refuse to take action until they are paid and may dismiss the action or proceeding. Petitioners lament that what the COMELEC en banc did was improvidential as it could have merely refused to act on his motion for reconsideration until the required fees were paid, while understandable, is untenable. Rodillas vs. Commission on Elections[22] succinctly explains why: Petitioner cannot invoke to his aid the provision of Section 18, Rule 40 of the COMELEC Rules of Procedure for the simple reason that under said Rule, the COMELEC is precisely given the discretion, in a case where the prescribed fees are not paid, to either refuse to take action on the case until the fees are paid, or to dismiss the action or proceeding. The COMELEC, unfortunately for petitioner, chose to exercise the second option. The COMELEC, therefore, did not commit an abuse of discretion in dismissing the appeal. Consequent to the COMELECs en banc Order declaring its Second Divisions Resolution of March 31, 2004 final and executory, the assailed issuance by the latter of the corresponding writ of execution to implement said

resolution can be sustained as correct and doubtless within its jurisdiction. Accordingly, petitioner is not entitled to a writ of certiorari, certiorari being limited to resolving only errors of jurisdiction; it is not a remedy to correct errors of judgment,[23] if such be the case. In all, this Court finds that the COMELEC en banc committed no error in denying, for reasons stated in its assailed Order dated September 8, 2004, petitioners motion for reconsideration of the Second Divisions Resolution of March 31, 2004. Given the foregoing premises, there is hardly any need to delve into the question of whether grave abuse of discretion attended the issuance by the COMELEC of an Entry of Judgmenton the assailed Second Divisions March 31, 2004 Resolution that led to the issuance of the corresponding writ of execution. Such issue has been rendered moot and academic by this disposition. An issue becomes moot and academic when it ceases to present a justifiable controversy so that a determination thereof would be without practical use and value. [24] In such cases, there is no actual substantial relief to which a petitioner would be entitled to and which would be negated by the dismissal of the petition.[25] WHEREFORE, the petition is DISMISSED. Accordingly, the status quo ante order issued by this Court on November 9, 2004 is hereby RECALLED. SO ORDERED. Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, AustriaMartinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, and Chico-Nazario, JJ., concur.
[1]

Election Law; Local Government Code; Term of Office; Requisites for the Three-Term Limit for Elective Local Government Officials to Apply.For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has fully served three (3) consecutive terms. Same; Same; Same; Franciss assumption of office as Mayor of San Vicente Camarines Norte from July 1, 1998 to June 30, 2001 constitutes service for the full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions.There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July 1, 1995June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around the 19982001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Franciss assumption of office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to Jun e 30, 2001, may be considered as one full term service in the context of the consecutive three-term limit rule. We hold that such assumption of office constitutes, for Francis, service for the full term, and should be c ounted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, barring local elective officials from being elected and serving for more than three consecutive term for the same position. Same; Same; Same; Petitioner Francis contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, that it was Francis opponent (Alegre) who won in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired. Petitioner Francis contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule. Same; Same; Same; Substitution of Candidate; A candidate whose certificate of candidacy has been cancelled or not given due course cannot be substituted by another belonging to the same political party as that of the former. Not to be overlooked is the Courts holding in Miranda vs. Abaya, that a candidate whose certificate of candidacy has been cancelled or not given due course cannot be substituted by another belonging to the same political party as that of the former. [Ong vs. Alegre, 479 SCRA 473(2006)] DECISION GARCIA, J.: Before the Court are these two separate petitions under Rule 65 of the Rules of Court to nullify and set aside certain issuances of the Commission on Elections (COMELEC) en banc. The first, docketed as G.R. No. 163295, is a petition for certiorari with petitioner Francis G. Ong impugning the COMELEC en banc resolution1 dated May 7, 2004 in SPA Case No. 04-048, granting private respondent Joseph Stanley Alegre's motion for reconsideration of the resolution dated March 31, 20042 of the COMELECs First Division. The second, G.R. No. 163354, is for certiorari, prohibition and mandamus, with application for injunctive relief, filed by petitioner Rommel Ong, brother of Francis, seeking, among other things, to stop the COMELEC from enforcing and implementing its aforesaid May 7, 2004 en banc resolution in SPA Case No. 04-048 pending the outcome of the petition in G.R. No. 163295.

Annex C, Petition; Rollo, pp. 135-137. [2] Annex A, Petition; Rollo, pp. 99-105. [3] Annex G, Petition; Rollo, pp. 144-149. [4] Annex I, Petition; Rollo, pp. 158-167. [5] Rollo, p. 163. [6] TSN, November 13, 2002, p. 37. [7] Annex J, Petition; Rollo, pp. 168-174. [8] See Note 2, supra; Rollo, pp. 99-105. [9] Annex B, Petition; Rollo, pp. 107-133. [10] Annex N, Petition; Rollo, pp. 239-241. [11] Annex S, Petition; Rollo, p. 265. [12] Annex Q, Petition; Rollo, pp. 257-259. [13] See Note 1, supra; Rollo, pp. 135-137. [14] Annex W, Petition; Rollo, p. 278. [15] Annex X, Petition; Rollo, pp. 279-280. [16] Rollo, p. 594. [17] 163 SCRA 489 [1988]. [18] Butuan Bay Export Corp. vs. Court of Appeals, 97 SCRA 297 [1980]; Garcia vs. HRET, 312 SCRA 353 [1999]. [19] See Note 1, supra. [20] Art. IX (C), Sec. 3, 1987 Constitution. [21] Art. IX (A), Sec. 6, ibid. [22] 245 SCRA 702 [1995]. [23] People vs. Court of Appeals, 308 SCRA 687 [1999] [24] Philippine Airlines vs. Pascua, 409 SCRA 195 [2003]. [25] Vda. de Davao vs. Court of Appeals, 426 SCRA 91 [2004].

G.R. No. 163295. January 23, 2006.* FRANCIS G. ONG, petitioner, vs. JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, respondents. G.R. No. 163354. January 23, 2006.* ROMMEL G. ONG, petitioner, vs. JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, respondents.

Per its en banc Resolution of June 1, 2004, the Court ordered the consolidation of these petitions. The recourse stemmed from the following essential and undisputed factual backdrop: Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis Ong (Francis) were candidates who filed certificates of candidacy for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. Francis was then the incumbent mayor. On January 9, 2004, Alegre filed with the COMELEC Provincial Office a Petition to Disqualify, Deny Due Course and Cancel Certificate of Candidacy3 of Francis. Docketed as SPA Case No. 04-048, the petition to disqualify was predicated on the three-consecutive term rule, Francis having, according to Alegre, ran in the May 1995, May 1998, and May 2001 mayoralty elections and have assumed office as mayor and discharged the duties thereof for three (3) consecutive full terms corresponding to those elections. To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San Vicente, Camarines Norte, with the latter being subsequently proclaimed by COMELEC winner in that contest. Alegre subsequently filed an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest,4 albeit the decision came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elect of the municipality of San Vicente. Acting on Alegres petition to disqualify and to cancel Francis certificate of candidacy for the May 10, 2004 elections, the First Division of the COMELEC rendered on March 31, 2004 a resolution5 dismissing the said petition of Alegre, rationalizing as follows: We see the circumstances in the case now before us analogous to those obtaining in the sample situations addressed by the Highest Court in the Borja case. Herein, one of the requisites for the application of the three term rule is not present. Francis Ong might have indeed fully served the mayoral terms of 1995 to 1998; 1998 to 2001 and 2001 to 2004. The mayoral term however, from 1998 to 2001 cannot be considered his because he was not duly elected thereto. The [RTC] of Daet, Camarines Norte, Branch 41 has voided his election for the 1998 term when it held, in its decision that Stanley Alegre was the "legally elected mayor in the 1998 mayoralty election in San Vicente, Camarines Norte." This disposition had become final after the [COMELEC] dismissed the appeal filed by Ong, the case having become moot and academic. xxx xxx xxx On the basis of the words of the Highest Court pronounced in the Lonzanida case and applicable in the case at bench, Ong could not be considered as having served as mayor from 1998 to 2001 because "he was not duly elected to the post; he merely assumed office as a presumptive winner; which presumption was later overturned when [the RTC] decided with finality that [he] lost in the May 1998 elections." (Words in bracket and emphasis in the original). Undaunted, Alegre filed a timely motion for reconsideration, contending, in the main, that there was a misapplication of the three-term rule, as applied in the cited cases of Borja vs. Comelec and Lonzanida vs. Comelec, infra. On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a resolution6 reversing the March 31, 2004 resolution of the COMELECs First Division and thereby (a) declaring Francis " as disqualified to run for mayor of San Vicente, Camarines Norte in the May 10, 2004"; (b) ordering the deletion of Francis name from the official list of candidates; and (c) directing the concerned board of election inspectors not to count the votes cast in his favor. The following day, May 8, Francis received a fax machine copy of the aforecited May 7, 2004 resolution, sending him posthaste to seek the assistance of his political party, the Nationalist Peoples Coalition, which immediately

nominated his older brother, Rommel Ong (Rommel), as substitute candidate. At about 5:05 p.m. of the very same day - which is past the deadline for filing a certificate of candidacy, Rommel filed his own certificate of candidacy for the position of mayor, as substitute candidate for his brother Francis. The following undisputed events then transpired: 1. On May 9, 2004, or a day before the May 10 elections, Alegre filed a Petition to Deny Due Course to or Cancel Certificate of Rommel Ong. 2. Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a letter7 to Provincial Election Supervisor (PES) of Camarines Norte Liza Z. Cario and Acting Election Officer Emily G. Basilonia in which he appealed that, owing to the COMELECs inaction on Alegre's petition to cancel Rommels certificate of candidacy, the name "Rommel Ong" be included in the official certified list of candidates for mayor of San Vicente, Camarines Norte. The desired listing was granted by the PES Carino. 3. On May 10, 2004, Alegre wrote8 to then COMELEC Commissioner Virgilio Garcillano, Commissioner-inCharge for Regions IV and V, seeking clarification on the legality of the action thus taken by the PES Cario. Responding, Commissioner Garcillano issued a Memorandum under date May 10, 20049 addressed to PES Liza D. Zabala-Cario, ordering her to implement the resolution of the COMELEC en banc in SPA No. 04-048 promulgated on May 7, 2004.10 Said Memorandum partly stated: The undersigned ADOPTS the recommendation of Atty. Alioden D. Dalaig [Director IV, Law Department], which he quote your stand, "that substitution is not proper if the certificate of the substituted candidacy is denied due course. In the Resolution of the Commission En banc, the Certificate of candidacy of Francis Ong was denied due course," and elaborated further that: "x x x there is an existing policy of the Commission not to include the name of a substitute candidate in the certified list of candidates unless the substitution is approved by the Commission. In view, thereof, it is recommended that 1) the substitute certificate of candidacy of Rommel Ong Gan Ong, should be denied due course; and 2) the election officer be directed to delete his name from the list of candidates." The above position of the Commission was in line with the pronouncement of Supreme Court in Miranda vs. Abaya (311 SCRA 617) which states: "There can no valid substitution where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy." In view thereof, you are hereby directed to faithfully implement the said Resolution of the Commission En Banc in SPA No. 04-048 promulgated on May 7, 2004. (Emphasis in the original; words in bracket added]. 4. Owing to the aforementioned Garcillano Memorandum, it would seem that the Chairman of the Municipal Board of Canvasser of San Vicente issued an order enjoining all concerned not to canvass the votes cast for Rommel, prompting the latter to file a protest with that Board.11 5. On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre as the winning candidate for the mayoralty post in San Vicente, Camarines Norte.12 On May 12, 2004, Francis filed before the Court a petition for certiorari, presently docketed as G.R. No. 163295. His brother Rommels petition in G.R. No. 163354 followed barely a week after.

In our en banc resolution dated June 1, 2004, G.R. No. 163295 and G.R. No. 163354 were consolidated. 13 Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing private respondent Alegres Petition to Deny Due Course to or Cancel Certificate of Candidacy of Rommel Ong, for being moot and academic.14 The issues for resolution of the Court are: In G.R. No. 163295, whether the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its en banc resolution dated May 7, 2004 declaring petitioner Francis as disqualified to run for Mayor of San Vicente, Camarines Norte in the May 10, 2004 elections and consequently ordering the deletion of his name from the official list of candidates so that any vote cast in his favor shall be considered stray. In G.R. No. 163354, whether the COMELEC committed grave abuse of discretion when it denied due course to Rommels certificate of candidacy in the same mayoralty election as substitute for his brother Francis. A resolution of the issues thus formulated hinges on the question of whether or not petitioner Franciss assumption of office as Mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service for the purpose of the three-term limit rule. Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand, disagrees. He argues that, while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayor-elect in the May 1998 election was contested and eventually nullified per the decision of the RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida vs. Comelec15, that a proclamation subsequently declared void is no proclamation at all and one assuming office on the strength of a protested proclamation does so as a presumptive winner and subject to the final outcome of the election protest. The three-term limit rule for elective local officials is found in Section 8, Article X of the 1987 Constitution, which provides: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. Section 43 (b) of the Local Government Code restates the same rule as follows: Sec. 43. Term of Office. xxx xxx xxx (b) No local elective official shall serve for more than three consecutive years in the same position. Voluntary renunciation of the office for any length of time shall not be considered an interruption in the continuity of service for the full term for which the elective official concerned was elected. For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has fully served three (3) consecutive terms.16 With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again

in the May 2001 elections and serving the July 1, 1995- June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Franciss assumption of office as Mayor of San Vicent e, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the consecutive three-term limit rule. We hold that such assumption of office constitutes, for Francis, " service for the full term", and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local elective officials from being elected and serving for more than three consecutive term for the same position. It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, 17 that it was Francis opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired. Petiti oner Francis contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule. The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would under the three-term rule - be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election. Petitioner cites, but, to our mind, cannot seek refuge from the Courts ruling in, Lonzanida vs. Comelec,18 citingBorja vs. Comelec19. In Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections, won and discharged his duties as Mayor. However, his opponent contested his proclamation and filed an election protest before the RTC of Zambales, which, in a decision dated January 9, 1997, ruled that there was a failure of elections and declared the position vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran for mayor of the same town. A petition to disqualify, under the three-term rule, was filed and was eventually granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. As the Court pointedly observed, Lonzanida "cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration of the term." The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty election was declared a nullity for the stated reason of " failure of election", and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of service. On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was actually no interruption or break in the continuity of Francis service respecting the 1998 -2001 term. Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term.

The ascription, therefore, of grave abuse of discretion on the part of the COMELEC en banc when it disqualified Francis from running in the May 10, 2004 elections for the mayoralty post of San Vicente and denying due course to his certificate of candidacy by force of the constitutional and statutory provisions regarding the three-term limit rule for any local elective official cannot be sustained. What the COMELEC en banc said in its May 7, 2004 assailed Resolution commends itself for concurrence: As correctly pointed out by Petitioner-Movant [Alegre]in applying the ruling in the Borja and Lonzanida cases in the instant petition will be erroneous because the factual milieu in those cases is different from the one obtaining here. Explicitly, the three-term limit was not made applicable in the cases of Borja and Lonzanida because there was an interruption in the continuity of service of the three consecutive terms. Here, Respondent Ong would have served continuously for three consecutive terms, from 1995 to 2004. His full term from 1998 to 2001 could not be simply discounted on the basis that he was not duly elected thereto on account of void proclamation because it would have iniquitous effects producing outright injustice and inequality as it rewards a legally disqualified and repudiated loser with a crown of victory. (Word in bracket added; emphasis in the original) Given the foregoing consideration, the question of whether or not then Commissioner Virgilio Garcillano overstepped his discretion when he issued the May 10, 2004 Memorandum, ordering the implementation of aforesaid May 7, 2004 COMELEC en banc resolution even before its finality20 is now of little moment and need not detain us any longer. Just as unmeritorious as Francis petition in G.R. No. 163295 is Rommels petition in G.R. No. 163354 in which he (Rommel) challenges the COMELEC's act of not including his name as a substitute candidate in the official list of candidates for the May 10, 2004 elections. As it were, existing COMELEC policy21 provides for the non-inclusion of the name of substitute candidates in the certified list of candidates pending approval of the substitution. Not to be overlooked is the Courts holding in Miranda vs. Abaya,22 that a candidate whose certificate of candidacy has been cancelled or not given due course cannot be substituted by another belonging to the same political party as that of the former, thus: While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code. Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code. xxx xxx xxx A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all. xxx xxx xxx After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista [Bautista vs. Comelec, G.R. No. 133840, November 13, 1998] we ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably

cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course. In any event, with the hard reality that the May 10, 2004 elections were already pass, Rommel Ongs petition in G.R. No. 163354 is already moot and academic. WHEREFORE, the instant petitions are DISMISSED and the assailed en banc Resolution dated May 7, 2004 of the COMELEC, in SPA No. 04-048 AFFIRMED. Costs against petitioners. SO ORDERED. Footnotes

1 2 3

Rollo in G.R. No. 163295, pp. 29-34. Rollo in G.R. No. 163295, pp. 20-28. Annex "A", Francis Ong's Petition for Certiorari, Rollo in G.R. No. 163295, pp. 15-19. 4 Annex "D", Francis Ong's Petition for Certiorari, Rollo in G.R. No. 163295, pp. 35-41. 5 Annex "B", Francis Ong's Petition for Certiorari, Rollo in G.R. No. 163295, pp. 20-28. 6 Annex "C", Francis Ong's Petition for Certiorari, Rollo in G.R. No. 163295, pp. 29-34. 7 Annex "E", Rommel Ong's Petition for Certiorari, Rollo in G.R. No. 163354, p. 46. 8 Annex "3", Alegre's Comment on Rommel Ong's Petition for Certiorari, Rollo in G.R. No. 163354, pp. 113-114. 9 Annex "4", Alegre's Comment on Rommel Ong's Petition for Certiorari, Rollo in G.R. No. 163354, pp. 115-116. 10 Vide Note #7, supra. 11 Annex "J", Rommel Ong's Petition, Rollo in G.R. No. 163354, p. 53. 12 Annex "5" Alegre's Comment on Rommel Ong's Petition for Certiorari, Rollo in G. R. No. 163354, p. 117. 13 Rollo in G.R. No. 163354, p. 63. 14 Ibid, pp.124-125. 15 311 SCRA 602 [1999]. 16 Adormeo vs. Comelec, 376 SCRA 90 [2002] citing Lonzanida vs. Comelec, 311 SCRA 602 [1999]. 17 See Note # 4, supra. 18 See Note No. 15, supra. 19 295 SCRA 157 (1998).
20

Section 13, Rule 18 of the COMELEC Rules of Procedure on the Finality of its Decision provides: Sec. 13. Finality of Decision or Resolutions. - (a) In ordinary actions, special proceedings, provisional remedies, and special reliefs, a decision or resolution of the Commission en banc shall become final and executory after thirty (30) days from its promulgation. (b) In Special Actions and Special cases, [such as a petition to disqualify} a decision or resolution of the Commission en banc shall become final and executory after five (5) days from its promulgation unless restrained by the Supreme Court. (c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special Actions and Special cases and after fifteen (15) days in all other actions or proceedings, following its promulgation. 21 Cited in Commissioner Garcillanos Memorandum of May 10, 2004; see Note #9, supra. 22 G.R. No. 136351, July 28, 1999, 311 SCRA 617, 624-626.

G.R. No. 161872. April 13, 2004.* REV. ELLY VELEZ PAMATONG, ESQUIRE, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

Election Law; Equal Access to Public Office; There is no constitutional right to run for or hold public office and, particularly, to seek the presidencywhat is recognized is merely a privilege subject to limitations imposed by law. Implicit in the petitioners invocation of the constitutional provision ensuring equal access to opportunities for public office is the claim that there is a constitutional right to run for or hold public office and, particularly in his case, to seek the presidency. There is none. What is recognized is merely a privilege subject to limitations imposed by law. Section 26, Article II of the Constitution neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is nothing in the plain language of the provision which suggests such a thrust or justifies an interpretation of the sort. Same; Same; Constitutional Law; Declaration of Principles and State Policies; The provisions under the Article are generally considered not self-executing, and there is no plausible reason for according a different treatment to the equal access provisionlike the rest of the policies enumerated in Article II, the provision does not contain any judicially enforceable constitutional right but merely specifies a guideline for legislative or executive action. The equal access provision is a subsumed part of Article II of the Constitution, entitled Declaration of Principles and State Policies. The provisions under the Article are generally considered not self -executing, and there is no plausible reason for according a different treatment to the equal access provision. Like the rest of the policies enumerated in Article II, the provision does not contain any judicially enforceable constitutional right but merely specifies a guideline for legislative or executive action. The disregard of the provision does not give rise to any cause of action before the courts. Same; Same; Same; Same; Statutory Construction; Words and Phrases; Words and phrases such as equal access, opportunities, and public service are susceptible to countless interpretations owing to their inherent impreciseness.The provision as written leaves much to be desired if it is to be regarded as the source of positive rights. It is difficult to interpret the clause as operative in the absence of legislation since its effective means and reach are not properly defined. Broadly written, the myriad of claims that can be subsumed under this rubric appear to be entirely open-ended. Words and phrases such as equal access opportunities and public service are susceptible to countless interpretations owing to their inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the people an operative but amorphous foundation from which innately unenforceable rights may be sourced. Same; Same; The privilege of equal access to opportunities to public office may be subjected to limitations; Equality is not sacrificed as long as the burdens engendered by the limitations are meant to be borne by any one who is minded to file a certificate of candidacy.As earlier noted, the privilege of equal access to opportunities to public office may be subjected to limitations. Some valid limitations specifically on the privilege to seek elective office are found in the provisions of the Omnibus Election Code on Nuisance Candidates and COMELEC Resolution No. 6452 dated December 10, 2002 outlining the instances wherein the COMELEC may motu proprio refuse to give due course to or cancel a Certificate of Candidacy. As long as the limitations apply to everybody equally without discrimination, however, the equal access clause is not violated. Equality is not sacrificed as long as the burdens engendered by the limitations are meant to be borne by any one who is minded to file a certificate of candidacy. In the case at bar, there is no showing that any person is exempt from the limitations or the burdens which they create. Same; Same; Nuisance Candidates; The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is easy to divine the State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly; Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the electiona disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions.The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not

to mention the increased allocation of time and resources in preparation for the election. These practical difficulties should, of course, never exempt the State from the conduct of a mandated electoral exercise. At the same time, remedial actions should be available to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions. As the United States Supreme Court held: [T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization and its candidates on the ballotthe interest, if no other, in avoiding confusion, deception and even frustration of the democratic [process]. Same; Same; Same; Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates and need not indulge in, as the song goes, their trips to the moon on gossamer wings.The preparation of ballots is but one aspect that would be af fected by allowance of nuisance candidates to run in the elections. Our election laws provide various entitlements for candidates for public office, such as watchers in every polling place, watchers in the board of canvassers, or even the receipt of electoral contributions. Moreover, there are election rules and regulations the formulations of which are dependent on the number of candidates in a given election. Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The organization of an election with bona fide candidates standing is onerous enough. To add into the mix candidates with no serious intentions or capabilities to run a viable campaign would actually impair the electoral process. This is not to mention the candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body would be bogged by irrelevant minutiae covering every step of the electoral process, most probably posed at the instance of these nuisance candidates. It would be a senseless sacrifice on the part of the State. Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates and need not indulge in, as the song goes, their trips to the moon on gossamer wings. Same; Same; Same; The determination of bona fide candidates is governed by the statutes, and the concept is satisfactorily defined in the Omnibus Election Code.The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State interest to ensure orderly and credible elections by excising impediments thereto, such as nuisance candidacies that distract and detract from the larger purpose. The COMELEC is mandated by the Constitution with the administration of elections and endowed with considerable latitude in adopting means and methods that will ensure the promotion of free, orderly and honest elections. Moreover, the Constitution guarantees that only bona fide candidates for public office shall be free from any form of harassment and discrimination. The determination of bona fide candidates is governed by the statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code. Same; Same; Same; The question of whether a candidate is a nuisance candidate or not is both legal and factual. Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing his credentials as an eligible candidate for the presidency. Yet this Court, not being a trier of facts, can not properly pass upon the reproductions as evidence at this level. Neither the COMELEC nor the Solicitor General appended any document to their respective Comments. The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of the factual determination is not before this Court. Thus, the remand of this case for the reception of further evidence is in order. [Pamatong vs. Commission on Elections, 427 SCRA 96(2004)] RESOLUTION TINGA, J.: Petitioner Rev. Elly Velez Pamatong filed his Certificate of Candidacy for President on December 17, 2003. Respondent Commission on Elections (COMELEC) refused to give due course to petitioners Certificate of Candidacy in its Resolution No. 6558 dated January 17, 2004. The decision, however, was not unanimous since Commissioners Luzviminda G. Tancangco and Mehol K. Sadain voted to include petitioner as they believed he had parties or movements to back up his candidacy.

On January 15, 2004, petitioner moved for reconsideration of Resolution No. 6558. Petitioners Motion for Reconsideration was docketed as SPP (MP) No. 04-001. The COMELEC, acting on petitioners Motion for Reconsideration and on similar motions filed by other aspirants for national elective positions, denied the same under the aegis of Omnibus Resolution No. 6604 dated February 11, 2004. The COMELEC declared petitioner and thirtyfive (35) others nuisance candidates who could not wage a nationwide campaign and/or are not nominated by a political party or are not supported by a registered political party with a national constituency. Commissioner Sadain maintained his vote for petitioner. By then, Commissioner Tancangco had retired. In this Petition For Writ of Certiorari, petitioner seeks to reverse the resolutions which were allegedly rendered in violation of his right to "equal access to opportunities for public service" under Section 26, Article II of the 1987 Constitution,1 by limiting the number of qualified candidates only to those who can afford to wage a nationwide campaign and/or are nominated by political parties. In so doing, petitioner argues that the COMELEC indirectly amended the constitutional provisions on the electoral process and limited the power of the sovereign people to choose their leaders. The COMELEC supposedly erred in disqualifying him since he is the most qualified among all the presidential candidates, i.e., he possesses all the constitutional and legal qualifications for the office of the president, he is capable of waging a national campaign since he has numerous national organizations under his leadership, he also has the capacity to wage an international campaign since he has practiced law in other countries, and he has a platform of government. Petitioner likewise attacks the validity of the form for theCertificate of Candidacy prepared by the COMELEC. Petitioner claims that the form does not provide clear and reasonable guidelines for determining the qualifications of candidates since it does not ask for the candidates bio -data and his program of government. First, the constitutional and legal dimensions involved. Implicit in the petitioners invocation of the constitutional provision ensuring "equal access to opportunities for public office" is the claim that there is a constitutional right to run for or hold public office and, particularly in his case, to seek the presidency. There is none. What is recognized is merely a privilege subject to limitations imposed by law. Section 26, Article II of the Constitution neither bestows such a right nor elevates the privilege to the level of an enforceable right. There is nothing in the plain language of the provision which suggests such a thrust or justifies an interpretation of the sort. The "equal access" provision is a subsumed part of Article II of the Constitution, entitled "Declaration of Principles and State Policies." The provisions under the Article are generally considered not self-executing,2 and there is no plausible reason for according a different treatment to the "equal access" provision. Like the rest of the policies enumerated in Article II, the provision does not contain any judicially enforceable constitutional right but merely specifies a guideline for legislative or executive action.3 The disregard of the provision does not give rise to any cause of action before the courts.4 An inquiry into the intent of the framers5 produces the same determination that the provision is not self-executory. The original wording of the present Section 26, Article II had read, "The State shall broaden opportunities to public office and prohibit public dynasties."6 Commissioner (now Chief Justice) Hilario Davide, Jr. successfully brought forth an amendment that changed the word "broaden" to the phrase "ensure equal access," and the substitution of the word "office" to "service." He explained his proposal in this wise: I changed the word "broaden" to "ENSURE EQUAL ACCESS TO" because what is important would be equal access to the opportunity. If you broaden, it would necessarily mean that the government would be mandated to create as many offices as are possible to accommodate as many people as are also possible. That is the meaning of broadening opportunities to public service. So, in order that we should not mandate the State to make the government the number one employer and to limit offices only to what may be necessary and expedient yet offering equal opportunities to access to it, I change the word "broaden."7 (emphasis supplied)

Obviously, the provision is not intended to compel the State to enact positive measures that would accommodate as many people as possible into public office. The approval of the "Davide amendment" indicates the design of the framers to cast the provision as simply enunciatory of a desired policy objective and not reflective of the imposition of a clear State burden. Moreover, the provision as written leaves much to be desired if it is to be regarded as the source of positive rights. It is difficult to interpret the clause as operative in the absence of legislation since its effective means and reach are not properly defined. Broadly written, the myriad of claims that can be subsumed under this rubric appear to be entirely open-ended.8 Words and phrases such as "equal access," "opportunities," and "public service" are susceptible to countless interpretations owing to their inherent impreciseness. Certainly, it was not the intention of the framers to inflict on the people an operative but amorphous foundation from which innately unenforceable rights may be sourced. As earlier noted, the privilege of equal access to opportunities to public office may be subjected to limitations. Some valid limitations specifically on the privilege to seek elective office are found in the provisions 9 of the Omnibus Election Code on "Nuisance Candidates" and COMELEC Resolution No. 645210 dated December 10, 2002 outlining the instances wherein the COMELEC may motu proprio refuse to give due course to or cancel aCertificate of Candidacy. As long as the limitations apply to everybody equally without discrimination, however, the equal access clause is not violated. Equality is not sacrificed as long as the burdens engendered by the limitations are meant to be borne by any one who is minded to file a certificate of candidacy. In the case at bar, there is no showing that any person is exempt from the limitations or the burdens which they create. Significantly, petitioner does not challenge the constitutionality or validity of Section 69 of the Omnibus Election Code and COMELEC Resolution No. 6452 dated 10 December 2003. Thus, their presumed validity stands and has to be accorded due weight. Clearly, therefore, petitioners reliance on the equal access clause in Section 26, Article II of the Constitution is misplaced. The rationale behind the prohibition against nuisance candidates and the disqualification of candidates who have not evinced a bona fide intention to run for office is easy to divine. The State has a compelling interest to ensure that its electoral exercises are rational, objective, and orderly. Towards this end, the State takes into account the practical considerations in conducting elections. Inevitably, the greater the number of candidates, the greater the opportunities for logistical confusion, not to mention the increased allocation of time and resources in preparation for the election. These practical difficulties should, of course, never exempt the State from the conduct of a mandated electoral exercise. At the same time, remedial actions should be available to alleviate these logistical hardships, whenever necessary and proper. Ultimately, a disorderly election is not merely a textbook example of inefficiency, but a rot that erodes faith in our democratic institutions. As the United States Supreme Court held: [T]here is surely an important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization and its candidates on the ballot the interest, if no other, in avoiding confusion, deception and even frustration of the democratic [process].11 The COMELEC itself recognized these practical considerations when it promulgated Resolution No. 6558 on 17 January 2004, adopting the study Memorandum of its Law Department dated 11 January 2004. As observed in the COMELECs Comment: There is a need to limit the number of candidates especially in the case of candidates for national positions because the election process becomes a mockery even if those who cannot clearly wage a national campaign are allowed to run. Their names would have to be printed in the Certified List of Candidates, Voters Information Sheet and the Official Ballots. These would entail additional costs to the government.

For the official ballots in automated counting and canvassing of votes, an additional page would amount to more or less FOUR HUNDRED FIFTY MILLION PESOS (P450,000,000.00). xxx[I]t serves no practical purpose to allow those candidates to continue if they cannot wage a decent campaign enough to project the prospect of winning, no matter how slim. 12 The preparation of ballots is but one aspect that would be affected by allowance of "nuisance candidates" to run in the elections. Our election laws provide various entitlements for candidates for public office, such as watchers in every polling place,13 watchers in the board of canvassers,14 or even the receipt of electoral contributions.15Moreover, there are election rules and regulations the formulations of which are dependent on the number of candidates in a given election. Given these considerations, the ignominious nature of a nuisance candidacy becomes even more galling. The organization of an election with bona fide candidates standing is onerous enough. To add into the mix candidates with no serious intentions or capabilities to run a viable campaign would actually impair the electoral process. This is not to mention the candidacies which are palpably ridiculous so as to constitute a one-note joke. The poll body would be bogged by irrelevant minutiae covering every step of the electoral process, most probably posed at the instance of these nuisance candidates. It would be a senseless sacrifice on the part of the State. Owing to the superior interest in ensuring a credible and orderly election, the State could exclude nuisance candidates and need not indulge in, as the song goes, "their trips to the moon on gossamer wings." The Omnibus Election Code and COMELEC Resolution No. 6452 are cognizant of the compelling State interest to ensure orderly and credible elections by excising impediments thereto, such as nuisance candidacies that distract and detract from the larger purpose. The COMELEC is mandated by the Constitution with the administration of elections16 and endowed with considerable latitude in adopting means and methods that will ensure the promotion of free, orderly and honest elections.17 Moreover, the Constitution guarantees that only bona fide candidates for public office shall be free from any form of harassment and discrimination. 18 The determination of bona fidecandidates is governed by the statutes, and the concept, to our mind is, satisfactorily defined in the Omnibus Election Code. Now, the needed factual premises. However valid the law and the COMELEC issuance involved are, their proper application in the case of the petitioner cannot be tested and reviewed by this Court on the basis of what is now before it. The assailed resolutions of the COMELEC do not direct the Court to the evidence which it considered in determining that petitioner was a nuisance candidate. This precludes the Court from reviewing at this instance whether the COMELEC committed grave abuse of discretion in disqualifying petitioner, since such a review would necessarily take into account the matters which the COMELEC considered in arriving at its decisions. Petitioner has submitted to this Court mere photocopies of various documents purportedly evincing his credentials as an eligible candidate for the presidency. Yet this Court, not being a trier of facts, can not properly pass upon the reproductions as evidence at this level. Neither the COMELEC nor the Solicitor General appended any document to their respective Comments. The question of whether a candidate is a nuisance candidate or not is both legal and factual. The basis of the factual determination is not before this Court. Thus, the remand of this case for the reception of further evidence is in order. A word of caution is in order. What is at stake is petitioners aspiration and offer to serve in the government. It deserves not a cursory treatment but a hearing which conforms to the requirements of due process. As to petitioners attacks on the validity of the form for the certificate of candidacy, suffice it to say that the form strictly complies with Section 74 of the Omnibus Election Code. This provision specifically enumerates what a

certificate of candidacy should contain, with the required information tending to show that the candidate possesses the minimum qualifications for the position aspired for as established by the Constitution and other election laws. IN VIEW OF THE FOREGOING, COMELEC Case No. SPP (MP) No. 04-001 is hereby remanded to the COMELEC for the reception of further evidence, to determine the question on whether petitioner Elly Velez Lao Pamatong is a nuisance candidate as contemplated in Section 69 of the Omnibus Election Code. The COMELEC is directed to hold and complete the reception of evidence and report its findings to this Court with deliberate dispatch. SO ORDERED. Davide, Jr., Puno, Vitug*, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. Footnotes
*

On Official Leave. Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. 2 See Basco v. PAGCOR, G.R. No. 91649, May 14, 1991, 197 SCRA 52, 68; Kilosbayan, Inc. v. Morato, G.R. No. 118910, 246 SCRA 540, 564. "A provision which lays down a general principle, such as those found in Art. II of the 1987 Constitution, is usually not self-executing." Manila Prince Hotel v. GSIS, G.R. No. 122156, 3 February 1997, 267 SCRA 408, 431. "Accordingly, [the Court has] held that the provisions in Article II of our Constitution entitled "Declaration of Principles and State Policies" should generally be construed as mere statements of principles of the State." Justice Puno, dissenting, Manila Prince Hotel v. GSIS, Id. at 474. 3 See Kilosbayan Inc. v. Morato, G.R. No. 118910, 16 November 1995, 250 SCRA 130, 138. Manila Prince Hotel v. GSIS, supra note 2 at 436. 4 Kilosbayan, Inc. v. Morato, supra note 2. 5 "A searching inquiry should be made to find out if the provision is intended as a present enactment, complete in itself as a definitive law, or if it needs future legislation for completion and enforcement. The inquiry demands a micro-analysis and the context of the provision in question." J. Puno, dissenting, Manila Prince Hotel v. GSIS, supra note 2. 6 J. Bernas, The Intent of the 1986 Constitution Writers (1995), p. 148. 7 IV Records of Proceedings and Debates, 1986 Constitutional Commission 945. 8 See J. Feliciano, concurring, Oposa v. Factoran, Jr., G.R. No. 101083, 30 July 1993, 224 SCRA 792, 815. 9 Section 69. Nuisance Candidates. The Commission may, motu proprio or upon a verified petition of an interested party, refuse to give due course or cancel a certificate of candidacy if it is shown that said certificate has been filed to put the election process in mockery or disrepute or to cause confusion among the voters by the similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been filed and thus prevent a faithful determination of the true will of the electorate. 10 SEC. 6. Motu Proprio Cases. The Commission may, at any time before the election, motu proprio refuse to give due course to or cancel a certificate of candidacy of any candidate for the positions of President, Vice-President, Senator and Party-list: I. The grounds: a. Candidates who, on the face of their certificate of candidacy, do not possess the constitutional and legal qualifications of the office to which they aspire to be elected; b. Candidate who, on the face of said certificate, filed their certificate of candidacy to put the election process in mockery or disrepute; c. Candidates whose certificate of candidacy could cause confusion among the voters by the similarity of names and surnames with other candidates; and
1

d. Candidates who have no bona fide intention to run for the office for which the certificate of candidacy had been filed or acts that clearly demonstrate the lack of such bona fide intention, such as: d.1 Candidates who do not belong to or are not nominated by any registered political party of national constituency; d.2 Presidential, Vice-Presidential [candi-dates] who do not present running mates for vice-president, respectively, nor senatorial candidates; d.3 Candidates who do not have a platform of government and are not capable of waging a nationwide campaign. 11 Jenness v. Fortson, 403 U.S. 431 (1971). 12 Rollo, pp. 469. 13 See Section 178, Omnibus Election Code, as amended. 14 See Section 239, Omnibus Election Code, as amended. 15 See Article XI, Omnibus Election Code, as amended. 16 See Section 2(1), Article IX, Constitution. 17 Sanchez v. COMELEC, 199 Phil. 617 (1987), citing Cauton v. COMELEC, L-25467, 27 April 1967, 19 SCRA 911. 18 See Section 9, Article IX, Constitution.

Election Law; House of Representatives Electoral Tribunal; The mandate of the House of Representatives Electoral Tribunal (HRET) to be the sole judge of all contests relating to the election, returns and qualifications of its members is constitutionally endowed.The mandate of the HRET to be the sole judge of all contests relating to the election, returns and qualifications of its members is constitutionally endowed. So long as the Constitution grants the HRET the power to be the sole judge of all contests relating to the election, returns, and qualifications of members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction shall, as a rule, not be reviewed by the Court. Same; Same; The dismissal of the petition, in effect, sustains the House of Representatives Electoral Tribunals finding regarding the invalidity of the COMELEC orders, which virtually gives authority to the House of Representatives Electoral Tribunal to rule upon the COMELECs issuances, a matter that is exclusively lodged with the Court.In exceptional cases, the Court had to exercise its power of judicial review, as when the HRETs decision or resolution was rendered without or in excess of its jurisdiction, or with grave abuse of discretion or upon a clear showing of a capricious, arbitrary and whimsical exercise of its power. I believe this case falls under the exception. It should be emphasized that the dismissal of the petition, in effect, sustains the HRETs finding regarding the invalidity of the COMELEC orders, which virtually gives authority to the HRET to rule upon the COMELECs issuances, a matter that is exclusively lodged with this Court. [Roces vs. House of Representatives Electoral Tribunal, 469 SCRA 681(2005)] DECISION PUNO, J.: If there is a right, there must be a remedy is an old legal adage. The case at bar provides the perfect setting for the application of this adage which is a demand for simple justice. The facts will show how the respondents right to run for a public office has been frustrated by unscrupulous officials in charge of the sanctity of our electoral process. Petitioner Miles Roces (Roces) and former Congressman Harry Ang Ping (Mr. Ang Ping) filed their respective certificates of candidacy (COCs) for the position of Representative for the 3 rd Congressional District of Manila in the May 2004 elections. On January 5, 2004, a registered voter of Manila named Alejandro Gomez questioned Mr. Ang Pings candidacy before the COMELEC through a petition to deny due course or cancel his COC.[1] The petition alleged that Mr. Ang Ping misrepresented himself to be a natural-born citizen, hence was disqualified for the position. Acting for the COMELEC First Division, Commissioner Virgilio O. Garcilliano issued an order on April 30, 2004 scheduling the promulgation of its resolution on May 5, 2004.[2] Two days before the scheduled promulgation or on May 3, 2004, Mr. Ang Ping filed with the COMELEC a Sworn Declaration of Withdrawal of his COC.[3] The next day, May 4, 2004, the General Counsel for the Nationalist Peoples Coalition, the political party of Mr. Ang Ping, sought that Mr. Ang Pings wife, Ma. Zenaida Ang Ping (Mrs. Ang Ping), substitute for him. [4] Mr. Ang Ping also filed a motion to cancel the scheduled promulgation and dismiss the petition to deny due course or cancel his COC on the same date.[5] On May 5, 2004, Commissioner Resurreccion Z. Borra deferred the promulgation for lack of quorum as he was the sole Commissioner in attendance.[6] Despite all these developments, the COMELEC First Division, through Commissioners Rufino S.B. Javier, Resurreccion Z. Borra, and Virgilio O. Garcilliano,issued a resolution granting the petition to deny due course to Mr. Ang Pings COC and ordering the Board of Election Inspectors of Manila not to count any vote cast in his favor.[7] It ruled that the resolution which was originally scheduled for promulgation by Commissioner

G.R. No. 167499. September 15, 2005.* MILES ANDREW MARI ROCES, petitioner, vs. HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and MARIA ZENAIDA B. ANG PING, respondents. Election Law; House of Representatives Electoral Tribunal (HRET); The House of Representatives Electoral Tribunal (HRET) has the power to hear and determine, or inquire into, the question of its own jurisdiction, both as to parties and as to subject matter, and to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction.The HRET is the sole judge of all contests relating to the election, returns, and qualifications of the members of the House of Representatives and has the power to promulgate procedural rules to govern proceedings brought before it. This exclusive jurisdiction includes the power to determine whether it has the authority to hear and determine the controversy presented, and the right to decide whether that state of facts exists which confers jurisdiction, as well as all other matters which arise in the case legitimately before it. Accordingly, it has the power to hear and determine, or inquire into, the question of its own jurisdiction, both as to parties and as to subject matter, and to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction. One of the three essential elements of jurisdiction is that proper parties must be present. Consequently, the HRET merely exercised its exclusive jurisdiction when it ruled that Mrs. Ang Ping was a proper party to contest the election of Roces. Same; Same; Nowhere is it provided in the law that the COMELEC en banc has the power to assume jurisdiction motu proprio over a petition to deny due course pending before a division of the Commission.To make matters worse, the COMELEC en banc usurped the jurisdiction of the COMELEC First Division when it issued Resolution No. 6823 on May 8, 2004 which ordered the deletion of Mr. Ang Pings name from the Certified List of Candidates and denied the spouses Ang Pings motions to withdraw and substitute despite the fact that: (1) the reglementary period of Mr. Ang Ping to appeal had not yet expired; and (2) Mr. Ang Ping had filed a motion for reconsideration of the preceding order on May 10, 2004 within the five-day reglementary period. Nowhere is it provided in the law that the COMELEC en banc has the power to assume jurisdiction motu proprio over a petition to deny due course pending before a division of the Commission. Diametrically opposed thereto are the provisions of the Constitution and COMELEC Rules of Procedure which provide that motions for reconsideration of the COMELEC divisions decisions, resolutions, orders or rulings must first be filed in the Divisions before the Commission en banc may take cognizance thereof. AUSTRIA-MARTINEZ, J., Dissenting Opinion:

Garcilliano on May 5, 2004 was instead promulgated on April 30, 2004, the same date that the notice of promulgation was issued.[8] The resolution was served on Mr. Ang Pings counsel on May 8, 2004.[9] Compounding the woes of Mr. Ang Ping, and despite the deferment of the promulgation by Commissioner Borra at a hearing on May 5, 2004, the COMELEC First Division issued on the same date an order denying Mr. Ang Pings motion to dismiss. It held that the motion to dismiss was filed after the promulgation of the April 30, 2004 resolution granting the petition to deny due course to Mr. Ang Pings COC.[10] On May 9, 2004, and before the expiration of the five-day reglementary period,[11] Mr. Ang Ping moved for reconsideration of the April 30, 2004 resolution and the case was elevated to the COMELEC en banc.[12] While the case was still with the COMELEC First Division, or on May 8, 2004, the COMELEC en banc issued Resolution No. 6823, declaring moot Mr. Ang Pings Affidavit of Withdrawal, denying due course to the substitute COC of Mrs. Ang Ping and ordering the Regional Election Director to delete Mr. Ang Pings name from the certified list of candidates.[13] Among the signatories to the Resolution were Commissioners Javier, Borra, and Garcilliano of the COMELEC First Division before which the petition to deny due course was still pending.[14] Mr. Ang Ping had no knowledge of the resolution. Racing against time or on May 11, 2004, the spouses Ang Ping repaired to this Court and filed a petition for certiorari with prayer for temporary restraining order, status quo order and/or writ of preliminary injunction docketed as G.R. No. 163259, assailing COMELEC Resolution No. 6823. [15] The next day or on May 12, 2004, this Court issued a resolution requiring Roces to comment and denied the issuance of an order suspending the proclamation.[16] On the election day itself, the Manila City Board of Canvassers resolved not to canvass the votes for Mr. or Mrs. Ang Ping citing COMELEC Resolution No. 6823.[17] On May 15, 2004, after counting only 6,347 votes out of the 150,387 registered voters in the district, it proclaimed Roces winner.[18] The spouses Ang Ping appealed the Board resolution to the COMELEC en banc[19] and filed a petition to annul the proclamation[20] but these were dismissed by COMELECs Resolution No. 7257 and Omnibus Order of July 6, 2004.[21] On May 19, 2004, Roces filed his Comment to the petition of spouses Ang Ping with this Court.[22] On May 25, 2004, this Court required the spouses Ang Ping to file their consolidated reply to the Comment. [23] On May 24, 2004, Mrs. Ang Ping filed an Election Protest Ad Cautelam with the House of Representatives Electoral Tribunal (HRET), which was docketed as HRET Case No. 04-004.[24] In her election protest, Mrs. Ang Ping alleged, among others, that COMELEC Resolution No. 6823 was a glaring case of deprivation of Mr. and Mrs. Ang Pings right to elevate SPC 04-224 to the Commission en banc and that the COMELECs April 30, 2004 resolution was irregularly promulgated. Roces filed his answer alleging, among others, that the HRET has no jurisdiction over the case.[25] On July 16, 2004, the spouses Ang Ping filed their consolidated reply with this Court. [26] On July 27, 2004, we required Mrs. Ang Ping to show cause why the petition in G.R. No. 163259 should not be dismissed in view of the filing and pendency of HRET Case No. 04-004.[27] In her Compliance filed on July 30, 2004, Mrs. Ang Ping explained that the issue of whether the COMELEC gravely abused its discretion in issuing the COMELEC Resolution No. 6823 may be ventilated as one of the issues to be settled in the HRET Election Protest since the non-canvassing of the Ang Ping votes and the proclamation of petitioner Roces were founded on COMELEC Resolution No. 6823 and were raised as the principal issues in the HRET Election Protest. This notwithstanding, the spouses Ang Ping manifested that they will submit to any disposal which this Honorable Court may find appropriate under the above circumstances and would defer and will accept any order/resolution of the Honorable Court that would resolve to

dismiss the instant petition/controversy, but allowing them to pursue and concentrate their time and effort in the above-mentioned Ad Cautela HRET Election Protest Case, which they intend to convert to a REGULAR PROTEST case, in such an event.[28] On August 10, 2004, this Court dismissed G.R. No. 163259 in view of the pending HRET protest filed by Mrs. Ang Ping.[29] The resolution eventually became final and executory.[30] Thereafter, Mrs. Ang Ping filed in the HRET a motion to convert the ad cautelam protest to a regular protest. The HRET granted the motion onSeptember 9, 2004.[31] In the HRET, Roces filed a motion to dismiss the protest, assailing in the main the personality of Mrs. Ang Ping to file the protest. It also raised the following issues: (1) whether the HRET has jurisdiction to review COMELEC Resolution No. 6823; (2) whether Mrs. Ang Ping can validly substitute for Mr. Ang Ping; (3) whether the protest may be resolved by mere canvass of election returns; (4) whether the proceeding is a protest considering that it questions proceedings held before the Manila City Board of Canvassers; (5) whether Mrs. Ang Ping could claim any right to the ballots cast considering she was not listed in the certified list of COMELEC candidates; (6) whether the petition is sufficient in form and substance despite failing to state the specific precincts protested; and (7) whether forum shopping was committed. After extensive oral arguments, the HRET denied Rocess motion to dismiss on March 3, 2005. It ruled that Mrs. Ang Ping was a proper party to file the protest against Roces since: (1) there was no final COMELEC resolution disqualifying or denying due course to the COC of Mr. Ang Ping, thus her substitution for the latter was legally permissible under the Omnibus Election Code; [32] (2) she was one of the candidates voted for during election day in the 3rd District of Manila;[33] and (3) the COMELEC Order of May 5, 2004 was of questionable validity for the reason that: (a) it was issued in violation of its April 30, 2004 resolution setting the promulgation for May 5, 2004 and despite the fact that the records had not yet reached the COMELEC en banc;[34] and (b) there was no prior notice and hearing in violation of Section 78 of the Omnibus Election Code. [35] Rocess motion for reconsideration of the HRET order was denied on March 21, 2005. Roces then filed the present petition for certiorari assailing the two preceding resolutions of the HRET.[36] The issues for resolution are: (1) whether or not the HRET committed grave abuse of discretion amounting to lack or excess of jurisdiction when it ruled that Mrs. Ang Ping is a proper party to file the election protest despite the denial in due course and cancellation of her COC under COMELEC Resolution No. 6823; and (2) whether or not HRET has jurisdiction to review a resolution or order of the COMELEC and/or declare the same as void and disregard or set it aside. After several months or on April 28, 2005, the COMELEC en banc issued a resolution denying Mr. Ang Pings motion for reconsideration of the COMELECs April 30, 2004 resolution for being moot and academic due to the petitioners proclamation, Mr. Ang Pings withdrawal of his candidacy and Mrs. Ang Pings attempt to substitute for her husband.[37] We hold that the HRET did not commit grave abuse of discretion amounting to lack or excess of jurisdiction when it denied the petitioners motion to dismiss for the following reasons: First. The HRET is the sole judge of all contests relating to the election, returns, and qualifications of the members of the House of Representatives[38] and has the power to promulgate procedural rules to govern proceedings brought before it.[39] This exclusive jurisdiction includes the power to determine whether it has the authority to hear and determine the controversy presented, and the right to decide whether that state of facts exists which confers jurisdiction, as well as all other matters which arise in the case legitimately before it.[40] Accordingly, it

has the power to hear and determine, or inquire into, the question of its own jurisdiction, both as to parties and as to subject matter, and to decide all questions, whether of law or fact, the decision of which is necessary to determine the question of jurisdiction.[41] One of the three essential elements of jurisdiction is that proper parties must be present.[42] Consequently, the HRET merely exercised its exclusive jurisdiction when it ruled that Mrs. Ang Ping was a proper party to contest the election of Roces. Second. There is no dispute that to support his motion to dismiss, Roces offered as evidence the COMELEC resolutions denying due course to Mrs. Ang Pings COC. In doing so, Roces submitted to the HRET the admissibility and validity of these resolutions and the HRET cannot be faulted in reviewing the said resolutions especially for the purpose of determining whether Roces was able to discharge his burden of proving that Mrs. Ang Ping is not the proper party to assail his election. In passing upon the COMELEC resolutions especially for that purpose, it cannot be said that the HRET usurped the jurisdiction of the COMELEC. On the merits of the HRET ruling, we hold that the HRET did not abuse its discretion in holding that Mrs. Ang Ping is a proper party to contest the election of Roces. Under COMELEC rules, the procedure of promulgation of a decision or resolution is as follows: SECTION 5. Promulgation. The promulgation of a decision or resolution of the Commission or a Division shall be made on a date previously fixed, of which notice shall be served in advance upon the parties or their attorneys personally or by registered mail or by telegram.[43] Promulgation is important because it determines when the reglementary period begins to toll. In the case at bar, Commissioner Garcilliano fixed the promulgation of its resolution whether to give due course to the candidacy of Mr. Ang Ping on May 5, 2004. For mysterious reasons, the COMELEC First Division of Commissioner Garcillano did not promulgate the resolution on May 5, 2004 in accordance with its notice of promulgation. In violation of the abovecited rule, and despite the deferment of the promulgation by Commissioner Borra to a date to be set by the COMELEC First Division, the resolution was deemed promulgated by the COMELEC on April 30, 2004 when it was filed with the clerk of court. The April 30, 2004 COMELEC resolution was received by Mr. Ang Pings counsel only on May 8, 2004.[44] The mysterious April 30, 2004 resolution was thereafter used to run roughshod over the rights of the Ang Pings. Thus, on May 5, 2004, the COMELEC First Division of Commissioner Garcilliano denied Mr. Ang Pings motion to dismiss. Allegedly, Mr. Ang Pings motion was filed after the April 30, 2004 resolution. To make matters worse, the COMELEC en banc usurped the jurisdiction of the COMELEC First Division when it issued Resolution No. 6823 on May 8, 2004which ordered the deletion of Mr. Ang Pings name from the Certified List of Candidates and denied the spouses Ang Pings motions to withdraw and substitute despite the fact that: (1) the reglementary period of Mr. Ang Ping to appeal had not yet expired; and (2) Mr. Ang Ping had filed a motion for reconsideration of the preceding order on May 10, 2004 within the five-day reglementary period. Nowhere is it provided in the law that the COMELEC en banc has the power to assume jurisdiction motu proprioover a petition to deny due course pending before a division of the Commission. Diametrically opposed thereto are the provisions of the Constitution and COMELEC Rules of Procedure which provide that motions for reconsideration of the COMELEC divisions decisions, resolutions, orders or rulings must first be filed in the Divisions before the Commission en banc may take cognizance thereof, viz.: SECTION 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure in order to expedite disposition of election cases,

including pre-proclamation controversies. All such election cases shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the Commission en banc.[45] SECTION 3. The Commission Sitting in Divisions. The Commission shall sit in two (2) Divisions to hear and decide protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special proceedings except in accreditation of citizens' arms of the Commission.[46] SECTION 5. How Motion for Reconsideration Disposed Of. Upon the filing of a motion to reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc. SECTION 6. Duty of Clerk of Court of Commission to Calendar Motion for Resolution. The Clerk of Court concerned shall calendar the motion for reconsideration for the resolution of the Commission en banc within ten (10) days from the certification thereof. (Emphases supplied)[47]

This premature COMELEC Resolution No. 6823 was then used on May 12, 2004, or on the election day itself, by the Manila City Board of Canvassers as the basis of its resolution not to canvass the votes for Mr. or Mrs. Ang Ping. It then proclaimed Roces the winner despite having counted only 6,347 votes out of the 150,387 registered voters of the district.[48] Following these highly suspect resolutions, Roces was proclaimed winner on May 15, 2004. All told, it cannot be denied that the effect of COMELEC en banc Resolution No. 6823 was to execute the April 30, 2004 resolution of its First Division which, at that time, had not yet become final and executory.These irregularities cannot be swept away by the belated COMELEC en bancs April 28, 2005 resolution denying Mr. Ang Pings motion for reconsideration dated May 10, 2004.[49] It is argued that Mrs. Ang Pings motions for reconsideration and appeals cured whatever defects occurred at the COMELEC. Citing T.H. Valderama & Sons, Inc. v. Drilon,[50] Roces points to the petition for certiorari filed with this Court on May 11, 2004 by Mrs. Ang Ping assailing COMELEC Resolution No. 6823 and her acquiescence to any appropriate action taken (by the Court) including the dismissal of the above petition. Contrary to Rocess posture, Valderama and its kin required that the aggrieved party be given an opportunity to be heard. In the case at bar, it ought to be emphasized that the private respondent was systematically denied the opportunity to be heard. The resolution of the COMELECs First Division was made before its priorily set date of promulgation, deemed final and executory by the COMELEC en banc in Resolution No. 6823 before expiry of the reglementary period, and executed by the Manila City Board of Canvassers. The petition for certiorari filed by Mrs. Ang Ping challenged these resolutions and could not have cured these blatant violations of her right to due process. In truth, this Court referred the case of Mrs. Ang Ping to the HRET where she has filed a protest ad cautelam. There is no iota of doubt that the COMELECs res olutions are void ab initio for violating Mrs. Ang Pings constitutional right to due process. Judgments entered in a proceeding failing to comply with procedural due process are void, as is one entered by a court acting in a manner inconsistent with due process.[51] A void judgment is defined as one that, from its inception, is a complete nullity and without legal effect. A void judgment is not entitled to the respect accorded to, and is attended by none of the consequences of, a valid adjudication. Indeed, a void judgment need not be recognized by anyone, but may be entirely disregarded or declared inoperative by any tribunal in which effect is sought to be given to it. It has no legal or binding force or efficacy for any purpose or at any place. It cannot affect, impair, or create rights, nor can any rights be based on it. All proceedings founded on the void judgment are themselves regarded as invalid and ineffective for any purpose.[52] Needless to stress, the HRET

did not commit grave abuse of discretion in assuming jurisdiction over the election protest as the COMELEC Resolution dated April 30, 2004, Order of May 5, 2004, and Resolution No. 6823 were void ab initio. Third. Petitioner contends that the HRET cannot review decisions of the COMELEC and that COMELEC decisions, orders, or rulings may be solely reviewed by the Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a copy thereof.[53] It is true that generally, the method of assailing a judgment or order of the COMELEC is via petition for certiorari.[54] As aforestated, however, it was petitioner who submitted these resolutions to the HRET as proofs that Mrs. Ang Ping was not a proper party. These same resolutions were collaterally attacked by Mrs. Ang Ping before the HRET when she alleged that these violated her right to due process.[55] A void judgment or resolution may be impeached through collateral attack.[56] A direct attack on a judgment or resolution is defined as an attempt to avoid or correct it in some manner provided by law, in a proceeding instituted for that very purpose, in the same action and in the same tribunal. Conversely, a collateral attack is an attempt to impeach the judgment or resolution by matters dehors the record, before a tribunal other than the one in which it was rendered, in an action other than that in which it was rendered; an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it; any proceeding which is not instituted for the express purpose of annulling, correcting, or modifying such decree; an objection, incidentally raised in the course of the proceeding, which presents an issue collateral to the issues made by the pleadings.[57] The rule that a void judgment or decree is subject to collateral attack at any time is based upon a court's inherent authority to expunge void acts from its records.[58] The void resolutions of the COMELEC, especially the April 30, 2004 resolution issued by its First Division, cannot oust the HRET of its jurisdiction over the case at bar. Fourth. We hasten to add that judgments, orders and resolutions should only be declared void in the most exceptional circumstances due to detrimental effects on the doctrine of finality of judgments. The circumstances of this case, however, are unique in that the private respondent was denied due process and was forced to seek justice in the HRET. In fact, it was this Court that referred the private respondent to the HRET when it dismissed the latters petition in G.R. No. 163259 on the ground of the pendency of HRET Case No. 04004. To grant the petition now would effectively foreclose the private respondents access to any remedy despite violation of her right to due process. IN VIEW WHEREOF, the petition is dismissed. The temporary restraining order previously issued by the Court is lifted. SO ORDERED.

[15] [16] [17] [18] [19] [20] [21] [22] [23] [24] [25] [26] [27] [28] [29] [30] [31] [32] [33] [34] [35] [36] [37] [38] [39]

[40]

[41]

[42]

[43] [44] [45] [46] [47] [48] [49] [50] [51] [1]

[2] [3] [4] [5] [6] [7] [8] [9] [10] [11] [12] [13] [14]

Rollo, G.R. No. 167499, pp. 105-111; Docketed as SPC No. 04-224 and raffled to the COMELEC First Division. Rollo, G.R. No. 163259, p. 36. Rollo, G.R. No. 167499, pp. 112-113; Rollo, G.R. No. 163259, pp. 37-39. Rollo, G.R. No. 167499, pp. 121-123; Rollo, G.R. No. 163259, pp. 47-48. Rollo, G.R. No. 163259, pp. 42-46. Rollo, G.R. No. 163259, pp. 49-54. Rollo, G.R. No. 163259, pp. 63-74. Rollo, G.R. No. 163259, p. 36. Rollo, G.R. No. 163259, pp. 63, 75. Rollo, G.R. No. 167499, pp. 119-120; Rollo, G.R. No. 163259, pp. 61-62. COMELEC Rules of Procedure, Rule 18, Section 13(b) (1993). Attachment 1 to Respondents Comment. Rollo, G.R. No. 167499, pp. 124-126; Rollo, G.R. No. 163259, pp. 32-34. Rollo, G.R. No. 163259, p. 34.

[52]

[53] [54] [55] [56]

[57] [58]

Rollo, G.R. No. 163259, pp. 3-31. Rollo, G.R. No. 163259, pp. 131, 156. Rollo, G.R. No. 167499, pp. 127-128; Rollo, G.R. No. 163259, pp. 93-94. Rollo, G.R. No. 167499, pp. 129-130; Rollo, G.R. No. 163259, p. 129; Respondents Comment, p. 8. Rollo, G.R. No. 163259, pp. 95-110; Docketed as SPC No. 04-016. Docketed as SPC No. 04-084. Respondents Comment, p. 9. Rollo, G.R. No. 163259, pp. 132-142, 161. Rollo, G.R. No. 163259, p. 161. Rollo, G.R. No. 167499, pp. 132-153. Rollo, G.R. No. 167499, pp. 154-160. Rollo, G.R. No. 163259, pp. 162-178. Rollo, G.R. No. 163259, pp. 180-181. Rollo, G.R. No. 163259, pp. 182-187. Rollo, G.R. No. 163259, p. 188. Rollo, G.R. No. 163259, p. 190. Rollo, G.R. No. 167499, pp. 161-163. Rollo, G.R. No. 167499, pp. 41, 49-50. Rollo, G.R. No. 167499, p. 50. Rollo, G.R. No. 167499, pp. 42-44. Rollo, G.R. No. 167499, p. 46. Rollo, G.R. No. 167499, pp. 3-30. Attachment 1 to Respondents Comment. Const., Article VI, Section 17 (1987). II Record of the 1986 Constitutional Commission, pp. 87-88; Bernas, The 1987 Constitution of the Republic of the Philippines, p. 731 (2003). 21 C.J.S. Courts 9 (2005) citing In re National Labor Relations Board, 58 S.Ct. 1001, 304 U.S. 486, 82 L.Ed. 1482; People ex rel. Carlstrom v. Shurtleff, 189 N.E. 291, 355 Ill. 210; Missouri-Kansas-Texas R. Co. v. Jones, Com.App., 24 S.W.2d 366. 21 C.J.S. Courts 88 (2005) citing State v. S & R Sanitation Services, Inc., 521 A.2d 1017, 202 Conn. 300; Miller v. Fortune Ins. Co., 484 So.2d 1221; Stoll v. Gottlieb, Ill., 59 S.Ct. 134, 305 U.S. 165, 83 L.Ed. 104 and other cases. 21 C.J.S. Courts 16 citing Noxon Chemical Products Co. v. Leckie, C.C.A.N.J., 39 F.2d 318; Telesco v. Telesco, 447 A.2d 752, 187 Conn. 715; Harder v. Johnson, 76 P.2d 763, 147 Kan. 440 and other cases. COMELEC Rules of Procedure, Rule 18, Section 5 (1993). Rollo, G.R. No. 163259, pp. 63, 75. Const., Article IX-C, Section 3 (1987). COMELEC Rules of Procedure, Rule 3, Section 3 (1993). COMELEC Rules of Procedure, Rule 19, Sections 5-6 (1993). Rollo, G.R. No. 163259, p. 129; Respondents Comment, p. 8. Attachment 1 to Respondents Comment. 181 SCRA 308 (1990). 49 C.J.S. Judgments 17 (2005); 11 Fed. Prac. & Proc. Civ.2d 2862, citing Simer v. Rios, C.A.7th, 1981, 661 F.2d 655, 663, 46 Am. Jur. 2d Judgments 31 (2005), citing Ripley v Bank of Skidmore, 355 Mo 897, 198 SW2d 861; Apple v Edwards, 123 Mont 135, 211 P2d 138 and other cases; 50 C.J.S. Judgments 499 (2005); Republic v. Court of Appeals, 309 SCRA 110 (1999); Paredes v. Moya, 61 SCRA 525 (1974). Const., Article IX, Section 7 (1987). 1997 Rules of Civil Procedure, Rule 64. Rollo, G.R. No. 167499, pp. 132-152. Gomez v. Concepcion, 47 Phil. 717 (1925); Dahl v. Grenier, 1 Dist., 467 N.E.2d 992, 81 Ill.Dec. 870, 126 Ill.App.3d 891; In re Petition of Stern (1954), 2 Ill.App.2d 311, 120 N.E.2d 62; Sherman & Ellis, Inc., v. Journal of Commerce, 259 Ill.App. 453. 50 C.J.S. Judgments 505 (2005). Dahl v. Grenier, 1 Dist., 467 N.E.2d 992, 81 Ill.Dec. 870, 126 Ill.App.3d 891; In re Petition of Stern (1954), 2 Ill.App.2d 311, 120 N.E.2d 62; Sherman & Ellis, Inc., v. Journal of Commerce, 259 Ill.App. 453.