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BAGO P. PASANDALAN V. COMMISSION ON ELECTIONS and BAI SALAMONA L. ASUM

[G. R. No. 150312. July 18, 2002]
CARPIO, J.:
Doctrine:

A petition for declaration of failure of election must specifically allege the essential grounds that
would justify the exercise of this extraordinary remedy. Otherwise, the PASANDALANS can
dismiss outright the petition for lack of merit. No grave abuse of discretion can be attributed to the
PASANDALANS in such a case because the PASANDALANS must exercise with utmost
circumspection the power to declare a failure of election to prevent disenfranchising voters and
frustrating the electorates will.

FACTS: Bago Pasandalan and private respondent Bai Salamona L. Asum were candidates for mayor in the
Municipality of Lumbayanague, Lanao del Sur during the May 14, 2001 elections.
On May 23, 2001, Pasandalan filed a petition before public respondent PASANDALANS seeking to nullify the
election results in Barangay Cabasaran, Barangay Deromoyod, Lamin, Barangay Wago, Barangay Meniros,
Barangay Bualan, and Barangay Pantaon, all of Lumbayanague, Lanao del Sur.
Petitioner alleged that while voting was going on, some Cafgus stationed near Sultan Gunting Elementary School
indiscriminately fired their firearms causing the voters to panic and leave the polling center without casting their votes.
Taking advantage of the confusion, supporters of Asum allegedly took the official ballots, filled them up with the name
of Asum and placed them inside the ballot boxes. In another barangay, the members of the Board of Election
Inspectors (BEI) allegedly failed to sign their initials at the back of several official ballots and to remove the
detachable coupons. The BEI members allegedly affixed their initials only during the counting of votes. Pasandalan
claims that Asums supporters, taking advantage of the fistfight between Asums nephew and the supporters of
candidate Norania Salo, grabbed the official ballots and filled them up with the name of Asum, in another polling
place. Pasandalan contends that a technical examination of several official ballots from the contested precincts would
show that only a few persons wrote the entries.
On June 26, 2001, Asum filed an Answer denying Pasandalans allegation that the volley of shots fired on May 14,
2001 disrupted the voting. Private respondent countered that the gunshots were heard around 2:35 p.m. and not at
the start of the voting. On June 30, 2001, Asum was sworn into office and assumed the position of municipal mayor of
the Lumbayanague, Lanao del Sur.
On October 12, 2001, the PASANDALANS issued a Resolution dismissing the petition for lack of merit. The
PASANDALANS ruled that the power to declare a failure of election, being an extraordinary remedy, could be
exercised only in three instances: (1) the election is not held; (2) the election is suspended; or (3) the election results
in a failure to elect. The third instance is understood in its literal sense, that is, nobody was elected.
The PASANDALANS dismissed the petition because none of the grounds relied upon by Pasandalan falls under any
of the three instances justifying a declaration of failure of election. The PASANDALANS ruled that his allegations are
better ventilated in an election contest. It did not give credence to Pasandalans evidence in support of his allegations
of terrorism and fraud since the evidence consisted only of affidavits executed by Pasandalans own poll watchers.
The PASANDALANS considered these affidavits self-serving and insufficient to annul the results of the election.
ISSUE: Whether or not there was a failure of election--- There was none.
HELD: We rule that the petition is without merit. The PASANDALANS correctly dismissed the petition for declaration
of failure of election because the irregularities alleged in the petition should have been raised in an election protest,
not in a petition to declare a failure of election.
Under Republic Act No. 7166, otherwise known as The Synchronized Elections Law of 1991, the PASANDALANS en
banc is empowered to declare a failure of election under Section 6 of the Omnibus Election Code (B.P. Blg. 881).
Section 6 of the Code prescribes the conditions for the exercise of this power, thus:
SEC. 6. Failure of Election. - If, on account of force majeure, violence, terrorism, fraud or other analogous causes the
election in any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law
for closing of the voting, or after the voting and during the preparation and the transmission of the election returns or
in the custody or canvass thereof, such election results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition
by any interested party and after due notice and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.

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Based on the foregoing provision, three instances justify a declaration of failure of election. These are:
(a) the election in any polling place has not been held on the date fixed on account of force majeure, violence,
terrorism, fraud or other analogous causes;
(b) the election in any polling place has been suspended before the hour fixed by law for the closing of the voting on
account of force majeure, violence, terrorism, fraud or other analogous causes; or
(c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass
thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud or other
analogous causes.
What is common in these three instances is the resulting failure to elect which means nobody emerged as a winner.
Pasandalans allegations do not fall under any of the instances that would justify the declaration of failure of election.
The election was held in the 16 protested precincts as scheduled. At no point was the election in any of the precincts
suspended. Nor was there a failure to elect because of force majeure, violence, terrorism, fraud or other analogous
causes during the preparation, transmission, custody and canvass of the election returns. The alleged terrorism was
not of such scale and prevalence to prevent the holding of the election or to cause its suspension. In fact, the casting
and counting of votes, the preparation, transmission and canvassing of election returns and the proclamation of the
winning candidate took place in due course.
Courts exercise the power to declare a failure of election with deliberate caution so as not to disenfranchise the
electorate. Pasandalans allegations of terrorism and fraud are not sufficient to warrant a nullification of the election in
the absence of any of the three instances justifying a declaration of failure of election.
To warrant a declaration of failure of election on the ground of fraud, the fraud must prevent or suspend the holding of
an election, or mar fatally the preparation, transmission, custody and canvass of the election returns . The allegations
of massive substitution of voters, multiple voting, and other electoral anomalies should be resolved in a proper
election protest in the absence of any of the three instances justifying a declaration of failure of election.
The nullification of elections or declaration of failure of elections is an extraordinary remedy. The party who seeks the
nullification of an election has the burden of proving entitlement to this remedy.
In the instant case, it is apparent that the allegations do not constitute sufficient grounds for the nullification of the
election. Pasandalan even failed to substantiate his allegations of terrorism and irregularities. His evidence consisted
of mere affidavits which are insufficient.
Pasandalan bewails the PASANDALANSs dismissal of his petition without first conducting a technical examination of
the questioned precincts. The PASANDALANS is not mandated to conduct a technical examination before it
dismisses a petition for nullification of election when the petition is, on its face, without merit. In Typoco, petitioner
Typoco buttressed his petition with independent evidence that compelled the PASANDALANS to conduct a technical
examination of the questioned returns. In the present case, Pasandalan failed to attach independent and objective
evidence other than the self-serving affidavits of his own poll watchers. In Mitmug v. PASANDALANS, we ruled that
the PASANDALANS could dismiss outright a petition for nullification of election if it is plainly groundless and the
allegations therein could be better ventilated in an election protest.
Clearly, the fact that a verified petition is filed with the PASANDALANS does not necessarily mean that a technical
examination or a hearing on the case should be conducted first before the PASANDALANS can act on the petition.
There is no grave abuse of discretion if the PASANDALANS dismisses the petition even without a technical
examination or hearing if the petition fails to show on its face the existence of any of the three instances required by
law to declare a failure of election. The PASANDALANS in this case correctly dismissed the petition.
Pasandalan believes that notwithstanding the fact that actual voting took place in the questioned precincts, the
election in this case, just like in Basher v. Commission on Elections, was illegal, irregular, and void. Citing Basher,
Pasandalan argues that the peculiar set of facts in this case do not merely show a failure of election but the absence
of a valid electoral exercise. The fact that an election is actually held prevents as a rule a declaration of failure of
election. It is only when the election is attended by patent and massive irregularities and illegalities that this Court will
annul the election
Basher does not apply to this case. Unlike in Basher, the election in this case proceeded as scheduled, in accordance
with law and PASANDALANS rules. None of the extreme circumstances that marred the election in Basher is present
in this case. We have ruled that there is failure of election only if the will of the electorate is muted and cannot be
ascertained. If the will of the people is determinable, the same must be respected as much as possible.
JESUS O. TYPOCO, JR. V. PASANDALANS EN BANC, AND JESUS EMMANUEL PIMENTEL

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GR 136191, November 29, 1999
FACTS: Jesus O. Typoco and Jesus Emmanuel Pimentel were both candidates for the position of Governor in
Camarines Norte during the May 11, 1998 elections. On June 10, 1998, TYPOCO filed a petition alleging that
massive fraud and irregularities attended the preparation of the election returns considering that upon technical
examination, 305 election returns were found to have been prepared in group by one person. A report by the
PASANDALANSs ERSD Voters Identification Division disclosed, among others, that the handwritten entries on278
PASANDALANS copies of election returns particularly under the columns Congressman/Governor/ViceGovernor/Nickname or Stage Name, were written by one and the same person in groups. The PASANDALANS En
Banc
promulgated a resolution dismissing TYPOCOs petition for the Declaration of Failure of Elections and/or Annulment
of Elections in Camarines Norte for lack of merit, claiming that the grounds cited by TYPOCO do not fall under any of
the instances enumerated in Section 6 of the Omnibus Election Code.
ISSUE:
Whether or not the findings of the ERSD Voters Identification Division can warrant the declaration of a Failure of
Elections and/or Annulment of Elections?
HELD:
NO. First, the Court pointed to Section 4 of Republic Act No. 7166, otherwise known as The Synchronized Elections
Law of 1991, from which the PASANDALANS derives its authority to declare a failure of elections. Second, the court
quoted Section 6 of the same law, which enumerates the causes for a declaration of a Failure of Election. These are
explained in the case of Mitmug v. Commission on Elections, wherein the Court held that two conditions must concur:
(1) no voting has taken place in the precincts concerned on the date fixed by law, or even if there was voting,
the election nevertheless resulted in a failure to election; and
(2) the votes cast would affect the result of the election.
In Loong v. Commission on Elections, the Court added that the cause of such failure of election should have
been any of the following: force majeur, violence, terrorist, fraud of other analogous cases.
Further in Borja, Jr. v. Commission on Elections, the Court stated that The PASANDALANS can call for the holding
or continuation of election by reason of failure of election only when the election is not held, is suspended or results in
a failure to elect. The latter phrase, in turn, must be understood in its literal sense, which is nobody was
elected.Clearly then, the Court held that there are only three instances where a failure of election may be declared,
namely:
(a) the election in any polling place has not been held on the date fixed on account of force majeure
,violence, terrorism, fraud, or other analogous cases;
(b) the election in any polling place had been suspended before the hour fixed by law for the closing of the voting on
account of force majeure,, violence, terrorism, fraud or other analogous causes;
(c) after the voting and during the preparation and transmission of the election returns or in the custody or canvass
thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud, or other
analogous causes. In all instances there must have been failure to elect.
This is obvious in the first scenario where the election was not held and the second where the election was
suspended. As to the third scenario, the preparation and transmission of the election returns, which gave rise to the
consequence of a failure to elect must as aforesaid be literally interpreted to mean that nobody emerged as a winner.
While fraud is a ground to declare a failure of election, the commission of fraud must be such that it prevented or
suspended the holding of an election including the preparation and transmission of the election returns. The ground
invoked by TYPOCO is not proper in a declaration of failure of election. TYPOCOs relief was for PASANDALANS to
order a recount of the votes cast, on account of the falsified election returns, which is properly the subject of an
election contest. The PASANDALANS, therefore, had no choice but to dismiss TYPOCOs petition in accordance
with clear provisions of the law and jurisprudence.

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HADJI RASUL BATADOR BASHER vs. COMMISSION ON ELECTIONS and ABULKAIR AMPATUA
EN BANC, [G.R. No. 139028. April 12, 2000]
PANGANIBAN, J.:
Doctrine: An election must be held at the place, date and time prescribed by law. Likewise, its suspension or
postponement must comply with legal requirements. Otherwise, it is irregular and void.
FACTS: Petitioner Hadji Rasul Batador Basher and Private Respondent Abulkair Ampatua were both candidates for
the position of Punong Barangay in Barangay Maidan, Tugaya, Lanao del Sur during the May 12, 1997 barangay
election. The election was declared a failure and a special one was set for June 12, 1997. Again, the election failed
and was reset to August 30, 1997.
Election Officer Diana DatuImam reported that she was allegedly advised by some religious leaders not to proceed
with the election because "it might trigger bloodshed." She also claimed that the town mayor yelled at and threatened
her to declare a failure of election in Maidan. Subsequently, the election officer proceeded to Maidan to conduct the
election starting at 9:00 p.m. until the early morning of the following day. The holding of the election at that particular
time was allegedly announced "over the mosque."
The tally sheet for the said "election" showed the following results: private respondent 250 votes; petitioner 15 votes;
and Baulo Abdul Razul, a third candidate 10 votes. Private respondent was proclaimed winner.
Petitioner then filed a Petition before the COMELEC praying that the election be declared a failure. Alleging that no
election was conducted in the place and at the time prescribed by law, petitioner narrated that there was a dispute
that day among the candidates regarding the venue of the election in the lone voting precinct of the barangay. In
order to avoid bloodshed, they ultimately agreed that no election would be conducted. Accordingly, the election officer
turned over for safekeeping the ballot box containing election paraphernalia to the acting station commander (OIC) of
the Philippine National Police (PNP). The following day, petitioner and the third candidate were surprised to learn that
the election officer had directed the Board of Election Tellers to conduct the election and to fill up the election returns
and certificates of canvass on the night of August 30, 1997 at the residence of the former mayor. Petitioner also
stated that no announcement to hold the election at the former mayors house that night was ever made.
As earlier stated, the COMELEC dismissed the Petition. The COMELEC ruled against a failure of election because
the two conditions laid down in Mitmug v. COMELEC were not established. It held that the "election was conducted
on the scheduled date. The precinct functioned. Actual voting took place, and it resulted not in a failure to elect."
ISSUE: Whether the "election" held on the date, at the time and in the place other than those officially designated by
the law and by the COMELEC was valid
HELD: No. Citing Mitmug v. COMELEC, the COMELEC points out that a failure of election requires the concurrence
of two conditions, namely (1) no voting took place in the precinct or precincts on the date fixed by law, or even if there
was voting, the election resulted in a failure to elect; and (2) the votes not cast would have affected the result of the
election. It ruled that these requirements were not met.
We do not agree. The peculiar set of facts in the present case show not merely a failure of election but the absence
of a valid electoral exercise. Otherwise stated, the disputed "election" was illegal, irregular and void.
a. Election Situs Was Illegal - The place where the voting was conducted was illegal. Section 42 of the Omnibus
Election Code provides that the chairman of the board of election tellers shall designate the public school or any other
public building within the barangay to be used as polling place in case the barangay has one election precinct.
Petitioner, citing an Affidavit supposedly executed by the members of the Board of Election Tellers (BET) for
Barangay Maidan, alleges that the election of officials for said barangay was held at the residence of former Mayor
Alang Sagusara Pukunun, which is located at Barangay Pandarianao, instead of the officially designated polling
precinct at Cagayan Elementary School. While the BET members later repudiated their Affidavit, however, they failed
to specify the exact venue. This glaring omission definitely raises serious questions on whether the election was
indeed held in a place allowed by law.
b. Voting Time Was Likewise Irregular - The law provides that the casting of votes shall start at seven o'clock in the
morning and shall end at three o'clock in the afternoon, except when there are voters present within thirty meters in
front of the polling place who have not yet cast their votes, in which case the voting shall continue but only to allow
said voters to cast their votes without interruption." Section 22, Article IV of COMELEC Resolution No. 2971 also
specifies that the voting hours shall start promptly at 7:00 a.m. and end at 3:00 p.m. of the same day.

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However, the "election" for Barangay Maidan officials was supposed to have been held after 9:00 p.m. of August 30,
1997 until the wee hours of the following day. Certainly, such schedule was not in accordance with law or the
COMELEC Rules. The COMELEC erred in relying on the second sentence of Section 22, Article IV of COMELEC
Resolution 2971, which states that "if at three o'clock in the afternoon, there are still voters within thirty meters in front
of the polling place who have not cast their votes, the voting shall continue to allow said voters to cast their votes
without interruption." This sentence presupposes that the election commenced during the official time and is simply
continued beyond 3:00 p.m. in order to accommodate voters who are within thirty meters of the polling place, already
waiting for their turn to cast their votes. This is clearly the meaning and intent of the word continue -- "to go on in a
specified course of action or condition." The strained interpretation espoused by the COMELEC encourages the
conduct of clandestine "elections," for it virtually authorizes the holding of elections beyond normal hours, even at
midnight when circumstances could be more threatening and conducive to unlawful activities.
c. Election Date Was Invalid - The COMELEC scheduled the special election on August 30, 1997. Any suspension or
postponement of an election is governed by Section 2 of RA 6679 which states that "when for any serious cause such
as rebellion, insurrection, violence, terrorism, loss or destruction of election paraphernalia, and any analogous causes
of such nature that the holding of a free, orderly and honest election should become impossible in any barangay, the
Commission on Election motu proprio or upon sworn petition of ten (10) registered voters of a barangay, after
summary proceedings of the existence of such grounds, shall suspend or postpone the election therein to a date
reasonably close to the date of the election that is not held or is suspended or postponed, or which resulted in a
failure to elect, but not later than thirty (30) days after the cessation of the cause for such suspension or
postponement of the election or failure to elect, and in all cases not later than ninety (90) days from the date of the
original election."
Election Officer Diana Datu-Imam of Tugaya, Lanao del Sur practically postponed the election in Barangay Maidan
from the official original schedule of 7:00 a.m. to 3:00 p.m. of August 30, 1997 to 10:00 p.m. of August 30, 1997 until
the early morning of August 31, 1997. She attempted to justify her postponement of the election by citing threats of
violence and bloodshed in the said barangay. However, as election officer, she has no authority to declare a failure of
election. Indeed, only the COMELEC itself has legal authority to exercise such awesome power. An election officer
alone, or even with the agreement of the candidates, cannot validly postpone or suspend the elections.
d. Election Postponement Was Invalid - Datu-Imam did not follow the procedure laid down by law for election
postponement or suspension or the declaration of a failure of election. It appeared from the very report of Datu-Imam
to the COMELEC that she did not conduct any proceeding, summary or otherwise, to find out whether any of the legal
grounds for the suspension or postponement or the declaration of failure of the election actually existed in the
barangay concerned.
e. Notice Was Irregular - The electorate was not given ample notice of the exact schedule and venue of the election,
as related by the election officer herself. As can be gleaned easily from her report, the electorate of Barangay
Maidan was not given due notice that the election would push through after 9:00 p.m. that same day. Apparently, the
election officer's decision to hold the election on the night of August 30, 1997 was precipitate. Only after additional
military troops had arrived at their site in a nearby barangay about 8:30 p.m. did the election officers proceed to
Barangay Maidan. Arriving at Maidan, they allegedly proceeded to conduct the election "after announcing it over the
mosque."
Such abbreviated announcement "over the mosque" at such late hour did NOT constitute sufficient notice to the
electorate. Consequently, not the entire electorate or even a respectable number could have known of the activity and
actually participated therein or voluntarily and discerningly chosen not to have done so.
Indeed, the Court in Hassan v. COMELEC held that the notice given on the afternoon of the election day resetting
the election to the following day and transferring its venue was "too short." In the case at bar, the announcement was
made only minutes before the supposed voting. If one-day notice was held to be insufficient in Hassan, the much
shorter notice in the present case should all the more be declared wanting. It should in fact be equated with "no
notice."
The "election" supposedly held for officials of Barangay Maidan cannot be clothed with any form of validity. It was
clearly unauthorized and invalid. It had no legal leg to stand on. Not only did the suspension/postponement not
comply with the procedure laid down by law and the COMELEC Rules, neither was there sufficient notice of the time
and date when and the place where it would actually be conducted. It was thus as if no election was held at all.
Hence, its results could not determine the winning punong barangay.
The Petition is GRANTED

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SULTAN MUHAMAD MITMUG vs. COMELEC, Municipal Board of Canvassers of Lumba-Bayabao, Lanao del Sur
and Datu Gambai Dagalangit
GR Nos. 106270-73, Feb 10, 1994
FACTS: Sultan Mitmug and Datu Dagalangit were among the candidates for the mayoralty position of LumbaBayabao during the 11 May 1992 election. Other candidates for the said position also included Datu Elias Abdusalam
and Datu Bagtao Khalid.
There were sixty-seven (67) precincts in the said municipality.
Voter turnout was rather low, particularly in forty-nine (49) precincts where the average voter turnout was 22.26%, i.e.,
only 2,330 out of 9,830registered voters therein cast their votes. Five (5) of these precincts did not conduct actual
voting at all.
Consequently, the COMELEC ordered the holding of a special election on 30 May 1992 in the five (5) precincts which
failed to function during election day. On 30 July 1992, another special election was held for a sixth precinct.
In the interim, Sultan Mitmug filed a petition seeking the annulment of the special election conducted on 30May 1992
alleging various irregularities such as the alteration, tampering and substitution of ballots. But on 13 July 1992,
COMELEC considered the petition moot since the votes in the subject precincts were already counted.
Other petitions seeking the declaration of failure of election in some or all precincts of Lumba-Bayabaowere also filed
with COMELEC by other mayoralty candidates.
1.

On 6 June 1992, Datu Gamba Dagalangit filed an urgent petition praying for the holding of a special election
in Precinct No. 22-A alleging therein that when the ballot box was opened, ballots were already torn to
pieces. On 14 July 1992, the petition was granted and a special election for Precinct No. 22-A wasset for 25
July 1992.

2.

On 16 June 19992, Datu Elias Abdusalam, another mayoralty candidate, filed a petition to declare failure of
election in twenty-nine (29) more precincts as a result of alleged tampering of ballots and clustering of
precincts. On 16 July 1992, the petition was dismissed. COMELEC ruled that there must be a situation
where there is absolute inability to vote before a failure of election can be declared. Since voting was
actually conducted in the contested precincts, there was no basis for the petition.

3.

On 20 June 1992, private respondent filed another petition, this time seeking to exclude from the counting
the ballots cast in six (6) precincts on the ground that the integrity of the ballot boxes therein was violated.
Again, on 14 July 1992, COMELEC considered the petition moot, as the issue raised therein was related to
that of SPA No. 92-311 which on 9 July 1992 was already set aside as moot.

4.

On 1 July 1992, Datu Bagato Khalid Lonta, a fourth mayoralty candidate, filed a petition which in the main
sought the declaration of failure of election in all sixty-seven (67) precincts of Lumba-Bayabao, Lanao del
Sur, on the ground of massive disenfranchisement of voters. On 9 July 1992, COMELEC dismissed the
petition, ruling that the allegations therein did not support a case of failure of election.

Subsequently, Sultan Mitmug filed a motion to intervene in these four (4) petitions but COMELEC treated the same as
a motion for reconsideration and promptly denied it considering that under the COMELEC Rules of Procedure such
motion was a prohibited pleading.
Thereafter, a new board of Election Inspectors was formed to conduct the special election set for 25 July1992. Sultan
Mitmug impugned the creation of this Board. Nevertheless, on 30 July 1992, the new Board convened and began the
canvassing of votes. Finally, on 31 July 1992, Datu Dagalangit was proclaimed the duly elected Mayor of LumbaBayabao,Lanao del Sur.
On August 3, 1992, Sultan Mitmug filed this petition for certiorari seeking the declaration of failure of election in fortynine (49) precincts where less than a quarter of the electorate were able to cast their votes. He also prayed for the
issuance of a temporary restraining order to enjoin Datu Dagalangit from assuming office.

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On August 10, 1992, Sultan Mitmug lodged an election protest with the Regional trial Court of Lanao del Sur disputing
the result not only of some but all the precincts of Lumba-Bayabao, del Sur. COMELEC et al. assert that with the filing
of an election protest, petitioner is already deemed to havea bandoned the instant petition.
ISSUE: WON the COMELEC acted with grave abuse of discretion amounting to lack of jurisdiction in denying
motu proprio and without due notice and hearing the petitions seeking to declare a failure of election in some or all of
the precincts in Lumba-Bayabao, Lanao del Sur
HELD: NO. Sultan Mitmug did not abandon this petition for certiorari when he filed an election protest.
When Sultan Mitmug filed his election protest with the Regional Trial Court of Lanao del Sur, he informed the trial
court of the pendency of these proceedings. Evidently, Sultan Mitmug did not intend to abandon his recourse with this
Court. On the contrary, he intended to pursue it.
Where only an election protest ex abundante ad cautela is filed, the Court retains jurisdiction to hear the petition
seeking to annul an election.
.
COMELEC did not commit grave abuse of discretion in dismissing the petitions outright
====
Under the COMELEC Rules of Procedure, within twenty-four (24) hours from the filing of a verified petition to declare
a failure to elect, notices to all interested parties indicating therein the date of hearing should be served through the
fastest means available. 18 The hearing of the case will also be summary in nature.
Based on the foregoing, the clear intent of the law is that a petition of this nature must be acted upon with dispatch
only after hearing thereon shall have been conducted. Since COMELEC denied the other petitions 20 which sought to
include forty-three (43) more precincts in a special election without conducting any hearing, it would appear then that
there indeed might have been grave abuse of discretion in denying the petitions.
However, a closer examination of the COMELEC Rules of Procedure, particularly Sec. 2, Rule 26, thereof which was
lifted from Sec. 6, B.P. 881, otherwise known as the Omnibus Election Code of the Philippines, indicates otherwise. It
reads
Sec. 2. Failure of election. If, on account of force majeure, violence, terrorism, fraud or other analogous causes
the election in any precinct has not been held on the date fixed, or had been suspended before the hour fixed by law
for the closing of the voting, or after the voting and during the preparation and the transmission of the election returns
or in the custody of canvass thereof, such election results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the Commission shall, on the basis of a verified petition
by any interested party and after due notice and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not later than thirty (30) days after the cessation of the cause of
such postponement or suspension of the election or failure to elect.
Before COMELEC can act on a verified petition seeking to declare a failure of election, two (2) conditions must
concur: first, no voting has taken place in the precinct or precincts on the date fixed by law or, even if there was
voting, the election nevertheless results in failure to elect; and, second, the votes not cast would affect the result of
the election.
There being no grave abuse of discretion, the Petition for Certiorari is DISMISSED.