Cases - 2nd Batch

EN BANC
28A-
11 May 1998
SUBJECT: Final Incident Report

[G.R. No. 134913. January 19, 2001]
TO:
Atty. Wynnie Asdala

Head, COMELEC Task Force Team
Marawi City
Acting Election Officer
Calanugas, Lanao del Sur
THRU:
ZAIPAL D. BENITO, petitioner, vs. COMMISSION ON ELECTIONS, IBRAHIM
PAGAYAWAN, and the MUNICIPAL BOARD OF CANVASSERS OF
CALANOGAS, LANAO DEL SUR, respondents.
1. 00A 111200H May 98, election held at Sultan Disimban Elementary

School comprising Brgys Laguna, Calalanoan, Pindulonan,
Tagoranao and Tambak all of Calanugas, Lanao del Sur was
suspended when more or less thirty (30) armed men equipped
with HPFAs including Cal. .30 LMG under Mayoralty Candidate
Jabbar Macapodi Maruhom fired shots on the air which cause the
voters and BEIs to scamper into different directions.
DECISION
DE LEON, JR., J.:
2. That about one (1) hour thereafter, the voting resumed in an orderly
and peaceful manner until about 1500H same day without any
trouble or untoward incident. After 1500H when no voter was in
the premises of the voting precincts, the casting of votes was
closed by the different BEIs.
Before us is a petition for certiorari under Rule 65 of the 1997 Rules of Civil
Procedure, seeking the reversal of an en banc Resolution[1] dated August 10, 1998 by
the public respondent Commission on Elections (COMELEC, for brevity) which
dismissed SPA No. 98-333, a petition to declare a failure of elections and to call for a
special elections in several precincts in the Municipality of Calanogas, Lanao del Sur.
The facts are:
signed)
Petitioner ZAIPAL D. BENITO and private respondent IBRAHIM PAGAYAWAN

were two (2) of eight (8) candidates vying for the position of municipal mayor in
Calanogas, Lanao del Sur during the May 11, 1998 elections. Of the municipalitys
election precincts, five (5) were clustered in Sultan Disimban Elementary
School. These were precincts 15A (Barangay Tagoranao), 6A/6A1 (Barangay
Luguna), 17A (Barangay Tambak), 2A/2A1 (Barangay Calalanoan), and 13A
(Barangay Pindulonan). The election in the first three (3), namely precincts 15A,
6A/6A1 and 17A are the subject of BENITOs petition to declare failure of elections
filed before the respondent COMELEC.
B
ENEDICTO S. MANQUIQUIS
C
apt
C
ommanding Officer
These turn of events, notwithstanding, the ballot boxes for the five (5) precincts
in Disimban Elementary School were taken together with those from the nineteen (19)
other precincts of Calanogas, to Marawi City for counting. The votes from precincts
15A, 6A/6A1 and 17A were excluded upon objection by petitioners counsel who, it is
claimed, arrived only after the ballots from the other nineteen (19) precincts had
already been tabulated.
On the day of the election, voting started peacefully at the polling

place. Shortly before noon, however, the proceedings were interrupted when some
thirty (30) armed men appeared at the school premises and fired shots into the
air. This sowed panic among the voters and election officials, causing them to scatter
in different directions. A spot report[2] issued by the commanding officer of the Alfa
Company, 28th Infantry Battalion, 4th Infantry Division of the Philippine Army, Captain
Benedicto S. Manquiquis summarized the incident in the following manner:
After counting, these results emerged:
00a 1113009 May 98, election held at Sultan Disimban Elem school comprising
Brgys Luguna, Calalanoan, Pindolonan, Tagoranao, and
Tambak. All of Calanogas Lanao del Sur was suspended when more or less
30 armed men with cal. 30 LMG under Mayoralty candidate Jabbar Macapodi
Maruhom fired shots on the air which cause the voters and BEIs to scamper in
different direction
(
signed)
B
ENEDICTO S. MANQUIQUIS
C
APT
(INF)
PA
C
O, A CO, ISIB, 4ID

Both parties contest alleged events transpiring after the interruption of the
voting. By petitioners account, the ballot boxes and other election materials were
taken to the municipal hall by the military forces providing security. From then on, the
voting allegedly never resumed, even when voters who had not yet cast their ballots
returned to their respective polling places after the lawless elements had left.
In direct opposition, private respondent avers that voting in fact
resumed when the
armed
men
left
at
about
1:00 oclock in the afternoon. There were no further untoward incidents until voting
closed at 3:00 oclock. As proof, private respondent submitted a Final Incident
Report[3] issued by the same Captain Manquiquis, the full text of which is hereunder
reproduced:
HEADQUARTERS
ALFA COMPANY, 28TH INFANTRY BATTALION, 4TH INF DIV, PA
Calanugas, Lanao del Sur
(INF) PA
C N
A O
N .
DI O
D F
AT V
E O
T
E
S
Ibr 9
ah 2
im 7
Pa 8
ga 7
ya 9
w 5
an 2
Za 4
ip (n
al o
Be d
nit at
o a
A a
mv
or ai
an la
M bl
ac e)
ab
or
od
Ja
bb
ar
M
ar
uh
o
m
OF JURISDICTION IN NOT ANNULLING THE CERTIFICATE OF

PROCLAMATION OF PRIVATE RESPONDENT DATED MAY 15,
1998.
It is the COMELEC en banc which has the exclusive power to postpone, to
declare a failure of election, or to call a special election. [8] In relation thereto, Section 6
of the Omnibus Election Code[9] provides:
Private respondent won over petitioner by forty-eight (48) votes.

On the other hand, the total votes cast for the three (3) excluded precincts
numbered forty-one (41) only, which is broken down as follows:
PRECINCT
15A
6A/6A1
17A
NO. OF REGISTERED VOTERS

177
225
188
TOTAL
590
Considering that private respondent would still lead petitioner by
seven (7) votes even if all forty-one (41) votes from the three (3) excluded precincts
were counted in the latters favor, private respondent was proclaimed mayor of
Calanogas.
On May 25, 1998, petitioner filed an amended petition [4] to declare failure of
election and to call a special elections in precincts 15A, 6A/6A1 and 17A, docketed as
SPA No. 98-333. He also filed a separate petition[5] for the annulment of the
proclamation of private respondent, docketed as SPC No. 98-159.
On June 10, 1998, the COMELEC issued an Order[6] consolidating SPC No.
98-159 with SPA No. 98-333. On June 29, 1998, it also issued Resolution No.
3049[7] wherein SPA No. 98-333 and SPA No. 98-159 were included among those
cases certified as active even beyond June 30, 1998.
Abbreviating the proceedings, after the parties had filed their respective
answers, replies, memoranda, and other related pleadings, on August 10, 1998, the
COMELEC issued the assailed resolution, the dispositive portion of which reads:
WHEREFORE, premises considered, the petition is hereby dismissed for lack of
merit. Precincts 6A/6A1, 15A and 17A functioned on 11 May 1998 elections. The
Municipal Board of Canvassers of Calanogas, Lanao del Sur is hereby ordered
to reconvene and count the remaining uncounted votes for the three precincts
aforementioned. Thereafter, they shall proclaim the three other un-proclaimed
municipal councilors and enter the correct votes garnered by the parties in the
Consolidation of Votes and Proclamation.
Considering that the remaining uncounted votes will no longer affect the lead of
the winning candidate for the position of mayor, the Commission hereby affirms
the proclamation made by the Municipal Board of Canvassers of Calanogas,
Lanao del Sur.
Hence, the instant petition.
The following issues are submitted for our resolution:
1. WHETHER OR NOT THE COMELEC ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION (A) IN DISMISSING THE PETITION OF
PETITIONER DOCKETED AS SPA NO. 98-333 (INCLUDING SPC
98-159 WHICH WAS CONSOLIDATED TO SPA 98-333 BY
ORDER OF THE COMELEC ON JUNE 10, 1998) FOR LACK OF
MERIT AND (B) IN DECLARING THAT THE ELECTIONS IN
PRECINCTS 6A & 6A1, 15A AND 17A HAVE CONTINUED AN
HOUR AFTER THEY WERE SUSPENDED ON THE BASIS OF
THE ALLEGED FINAL REPORT OF CAPTAIN MANQUIQUIS;
OF JURISDICTION IN NOT HOLDING A SPECIAL ELECTION IN
PRECINCT NOS. 15A, 6A & 6A1 AND 17A ON GROUND OF
FAILURE OF ELECTION OR OF A SUSPENDED ELECTION
BEFORE THE CLOSING OF THE VOTING AT 3:00 OCLOCK IN
THE AFTERNOON OF THE MAY 11, 1998 ELECTION DAY ON
GROUND OF THREATS, VIOLENCE AND TERRORISM; AND
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 the 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 such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or continuation of
the election not held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.
Elucidating on the aforesaid provision, we held in Hassan v. Commission on
Elections[10] that two (2) pre-conditions must exist before a failure of election may be
declared, thus: (1) no voting has been held in any precinct or precincts due to force
majeure, violence or terrorism; and (2) the votes not cast therein are sufficient to affect
the results of the election. The cause of such failure may arise before or after the
casting of votes or on the day of the election.[11]
Coming to the merits of the petition, we are not sufficiently persuaded that the
public respondent COMELEC gravely abused its discretion in denying BENITOs
petition to declare a failure of election in precincts 15A, 6A/6A1 and 17A of
Calanogas. Grave abuse of discretion means such capricious and whimsical exercise
of judgment as is equivalent to lack of jurisdiction, or, in other words where the power
is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility, and it must be so patent and gross as to amount to an evasion of positive
duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation
of law.[12] It is not sufficient that a tribunal, in the exercise of its power, abused its
discretion; such abuse must be grave.[13]
It is obvious at the outset that petitioner raises issues foreign to the remedy he
seeks. He avers that a failure of elections must be declared in the precincts in
question since the voting therein was interrupted by the sudden and threatening arrival
of armed goons of a rival candidate. He unequivocally states that there was never any
resumption of voting since the ballot boxes and other election materials were taken
into custody by the military and brought to the municipal hall. In contrast, it is private
respondents contention that, in truth, voting resumed peacefully at about one oclock
in the afternoon on election day or after the departure of the armed men. It is clear to
us that whether there was a resumption of voting is essentially a question of
fact. Such are not proper subjects of inquiry in a petition forcertiorari under Rule 65.[14]
In the same vein, neither may petitioner ask us to judge which of the two (2)
incident reports issued by Captain Manquiquis should be given more credence. In this
connection, it will not be amiss to point out that the purported inconsistency between
the two reports appear to be more imaginary than real. Petitioner characterizes the
final incident report as a product of falsification on the ground that its alleged time
and date of execution was at OOA 111200H May 98 whereas the handwritten spot
report was prepared at OOa 111300H May 98. How then, petitioner bewails, could
such a final report have been issued ahead of the initial report? We disagree with
petitioner; we have read the final incident report and conclude that the time stated
therein referred not to the time of execution of the said report but to the time of the
occurrence of the incident. We note that this is an approximation of the time when the
armed strangers appeared and disrupted the theretofore peaceful conduct of the
elections.
Similarly, nor would it be proper for us to pass upon the authenticity of the
contradictory affidavits supposedly executed by the members of the board of election
inspectors of the affected precincts. Both parties seek to introduce into evidence
affidavits ostensibly executed by the same persons yet whose recitations are
contradictory to each other. As regards the incident reports, evaluation of evidentiary
matters is beyond the province of a writ of certiorari.[15] In any event, we find that the
COMELEC did not gravely abuse its discretion in refusing to give credit to either
partys version. Naturally, petitioner and private respondent attest to the authenticity of
the affidavits favorable to them. To illustrate, petitioner insists that the genuineness of
the affidavits attached to the amended petition he filed before the COMELEC is
allegedly confirmed by the second set of affidavits[16] in turn repudiating those relied
upon by private respondent in his answer. [17] Just as the COMELEC was reluctant to
treat petitioners claim as gospel truth, so too do we hesitate to accord weight to this
rigmarole of sworn statements. As aptly held by the COMELEC,
In his reply, petitioner vehemently denied the allegation of respondent that the voting in
the three precincts continued. He again presented the affidavits of the members of the
different BEIs saying that they did not execute the affidavits presented by respondent
Pagayawan and that their signatures therein were forged. On its face, however, the
signatures appear to have been made by the same persons. This notwithstanding,
WE shall not base our resolution of this case on the affidavits submitted by the
members of the different BEIs for the reason that they are contradictory to each other
but rather on the merits of the pleadings and other evidences presented.
In dismissing BENITO's petition for lack of merit, the COMELEC further ruled
thus:
It is noteworthy to mention that of all the five precincts whose elections were held in
Disimban Elementary School, petitioner Benito claimed only three precincts failed to
function therein. In fact he reiterated this in his reply though averring that he has no
objection to Macaborods prayer that failure of election be likewise declared in precinct
nos. 2A/2A1 and 13A and that special election be also held therein. Records of the
case per pleadings of the parties show that results of the elections in nineteen (19)
precincts out of the twenty two (22) precincts were already counted. Verification on
the project of precincts also showed that there were actually five precincts whose
polling places were in Disimban Elementary School. Per report of the Acting Election
Officer of Calanogas, it was only the counting of votes in precincts 6A/6A1, 15A, and
17A which was actually objected to by the counsels of petitioner. The strong
objections to the counting of the three precincts prompted by Atty. Wynne Asdala
(COMELEC TASK FORCE) and Col. Atienza (PA) to suspend the counting of votes for
the municipality of Calanogas.
The Commission gives more weight to the report made by Captain Manquiquis whose
final report to the Commission says that the voting resumed an hour after the firing
occured which disrupted the voting in all the five precincts clustered in Disimban
Elementary School. His final report dated 11 May 1998 confirms that no failure of
elections in the five precincts occured. This is buttressed by the fact that counsels of
petitioner and all other parties and candidates during the counting did not question the
counting of votes for precincts 2A/2A1 and 13A whose polling place were also in the
same school. This fact gives us the impression that indeed voting in all the five
precincts resumed after peace and order was re-established in Disimban Elem.
School. There was no objection raised to the count of votes in the said two precincts
during the counting of votes at the counting center. So why a selective objection to the
three precincts herein? Even candidate Macaborod did not object to the count of the
other two precincts namely 2A/2A1 and 13A. If votes for precincts 2A/2A1 and 13A
were counted, the same must also be done for precincts 6A/6A1, 15A, and 17A
notwithstanding the fact that only very few voters cast their votes. The disruption of
voting in all these precincts was caused by the same act: firing guns to intimidate all
the voters therein to stop them from casting their votes. If voters in these precincts
really wanted to vote ,they could have done so after the cessation of the terroristic
acts. In precinct 15A, at 11:45 A.M., only one vote was cast therein. Lack of interest
may have been the problem herein that the cause alluded to by petitioner.
After a careful consideration of the parties submissions, we find that the
COMELEC did not gravely abuse its discretion in denying BENITOs petition to declare
a failure to election and to call a special election. It is indeed odd that petitioner
singles out only precincts 15A, 6A/6A1 and 17A as the subjects of his petition when
there were two (2) other precincts in the same school. [18] It was only in his reply with
memorandum[19] did he signify his lack of objection to a declaration of failure of election
in precincts 2A/2A1 and 13A, as prayed for by candidate Amoran Macaborods answer
with counter-petition.[20] Likewise, he never objected to the inclusion of the two (2)
other precincts during the canvassing and counting of votes.
Petitioner attempts to overcome the oversight by alleging that he had no
opportunity to object thereto because his counsel, Atty. Hussein N. Mambuay, was not
present, allegedly because the latter did not possess the prescribed identification for
lawyers. In this regard, we have reviewed the record and we concur with private
respondent that this claim of petitioner appears to be a mere afterthought. Petitioner
never raised this particular issue in his earlier pleadings filed with the COMELEC. Be
that as it may, his counsel should have exercised more prudence in securing
beforehand his proper identification papers.
In a sense, petitioner equates failure of elections to the low percentage of votes
cast vis--vis the number of registered voters in the subject election
precincts. However,
[t]here can be failure of election in a political unit only if the will of the majority
has been defiled and cannot be ascertained. But, if it can be determined, it
must be accorded respect. After all, there is no provision in our election laws
which requires that a majority of registered voters must cast their votes. All the
law requires is that a winning candidate must be elected by a plurality of valid
votes, regardless of the actual number of ballots cast. Thus, even if less than
25% of the electorate in the questioned precincts cast their votes, the same
must still be respected. xxxx[21]
As we also explained in Sardea v. Commission on Elections,[22]
The power to throw out or annul an election should be exercised with the utmost care
and only under circumstances which demonstrate beyond doubt either that the
disregard of the law had been so fundamental or so persistent and continuous that it is
impossible to distinguish what votes are lawful and what are unlawful, or to arrive at
any certain result whatsoever, or that the great body of voters have been prevented by
violence, intimidation and threats from exercising their franchise [citations omitted]
xxx
xxx
xxx
xx
x
There is failure of elections only when the will of the electorate has been muted and
cannot be ascertained. If the will of the people is determinable, the same must as far
as possible be respected.
A final observation: petitioner should not ask us to declare a failure of elections
in the questioned precincts simply because public respondent COMELEC declared a
failure in other precincts in Lanao del Sur. In the recently decided case
of Pangandaman v. Commission on Elections,[23] we unanimously[24] upheld the very
same Omnibus Order[25] dated July 14, 1998 relied upon by petitioner, on these
premises:
Petitioners argument that respondent COMELEC gravely
abused its discretion by failing to declare a total failure of elections
in the entire province of Lanao del Sur and to certify the same to
the President and Congress so that the necessary legislation may be
enacted for the holding of a special election, likewise fails to persuade.
No less than the petitioner himself concedes that there was total failure of elections in
twelve (12) municipalities and partial failure in eleven (11). Yet he now insists a total
failure of elections should have been declared in the entire province of Lanao del
Sur. Suffice it to state that the propriety of declaring whether or not there has been a
total failure of elections in the entire province of Lanao del Sur is a factual issue which
this Court will not delve into considering that the COMELEC, through its deputized
officials in the field, is in the best position to assess the actual conditions prevailing in
that area. Absent any showing of grave abuse of discretion, the findings of fact of the
COMELEC or any administrative agency exercising particular expertise in its field of
endeavor, are binding on the Court. There is no cogent reason to depart from the
general rule in this case.
Hence, in view of all the foregoing, we find no reason to disturb the Resolution
of COMELEC under review.
WHEREFORE, the petition for certiorari is hereby DENIED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Buena, Gonzaga-Reyes, Ynares-Santiago andSandovalGutierrez, JJ., concur.
Pardo J., no part. Was Comelec chair at the time of issue of resolution.
Case Digest on Benito v. COMELEC G.R. No. 134913 (Jan 19, 2001)
November 10, 2010
FACTS:
Benito and private respondent Pagayawan were 2 of 8 candidates vying for
the position of municipal mayor in Calanogas, Lanao del Sur during the May 11, 1998
elections. 5 precincts clustered in the Sultan Disimban Elementary School were met
with violence when some 30 armed men appeared at the school premises and fired
shots into the air. This sowed panic among the voters and elections officials, causing
them to scatter in different directions. It happened before noon at the day of election. A
spot report reported the incident.
Both parties are contending contrary facts. Petitioner alleged that the voting never
resumed even after the lawless elements left. On the other hand, private respondent
alleged that voting resumed when the armed men left around 1 pm in the afternoon.
Petitioner is only asking, however, a declaration of failure of elections on the first three
precincts, not with the entire five precincts. During the counting, the ballots from the
three precincts were excluded. Nevertheless, the winner was the private respondent.
And even if the votes from the three excluded precincts were added, private
respondent still emerged as the winner.
Petitioner then filed a petition to declare failure of election and to call a special
election. COMELEC however denied the petition and affirmed the proclamation.
HELD: Petition Dismissed.
1.
Two preconditions must exist before a failure of election may be declared: (1)
no voting has been held in any precinct due to force majeure, violence or terrorism;
and (2) the votes not cast therein are sufficient to affect the results of the election. The
cause of such failure may arise before or after the casting of votes or on the day of the
election.
2.
Whether there was a resumption of voting is essentially a question of fact.
Such are not proper subjects of inquiry in a petition for certiorari under Rule 65.
3.
Voting in all five precincts resumed after peace and order was re-established in
the Disimban Elementary School. There was no objection raised to the count of votes
in the said two precincts during the counting of votes at the counting center. So why a
selective objection to the three precincts herein?
4.
Petitioner equates failure of elections to the low percentage of votes cast vis--
vis the number of registered voters in the subject election precincts. However, there
can be a failure of election in a political unit only if the will of the majority has been
defiled and cannot be ascertained. But if it can be determined, it must be accorded
respect. After all, there is no provision in our election laws which requires that a
majority of registered voters must cast their votes. All the law requires is that a winning
candidate must be elected by a plurality of valid votes, regardless of the actual number
of ballots cast.
5.
The power to throw out or annul an election should be exercised with the
utmost care and only under circumstances which demonstrate beyond doubt either
that the disregard of the law had been so fundamental or so persistent and continuous
that it is impossible to distinguish what votes are lawful and what are unlawful, or to
arrive at any certain result whatsoever, or that the great body of voters have been
prevented by violence, intimidation and threats from exercising their franchise.
SECTION 6 OEC
EN BANC
[G.R. No. 134696. July 31, 2000]
The factual antecedents of this case are as follows:

Petitioner and private respondent were the candidates for vice-mayor of the
City of Paraaque in the May 11, 1998 election. On May 19, 1998, the city board of
canvassers proclaimed private respondent, Florencio M. Bernabe, Jr., the winner for
having garnered a total of Seventy One Thousand Nine Hundred Seventy Seven
(71,977) votes of the total votes cast for the vice-mayoralty position. On the other
hand, petitioner, Tomas T. Banaga, Jr., received the second highest number of votes
for the said position, with Sixty Eight Thousand Nine Hundred Seventy (68,970) of the
total votes cast. Thus, the difference between the votes received by the private
respondent and the petitioner is three thousand seven (3,007) votes.
Dissatisfied, petitioner filed with the COMELEC on May 29, 1998, an action
denominated as Petition to Declare Failure of Elections and/or For Annulment of
Elections,[1] alleging that:
3. xxx the local elections for the office of Vice-Mayor in the City of Paraaque, Metro
Manila, held on 11 May 1998, amounts to a denigration of the expression of the true
will of the people, as it was tainted with widespread election anomalies which
constitutes election fraud. The local elections for the position of Vice-Mayor in the City
of Paraaque, Metro Manila, was replete with election offenses, specifically vote
buying and flying voters being allowed to vote. Moreover, during the canvassing of
votes before the Board of Canvasser, numerous Election Returns were discovered to
contain glaring discrepancies and are replete with blatant omissions, not to mention
the fact that numerous election returns appeared to be tampered with. All told, it is
readily apparent that the portion of the Election Returns pertaining to the position of
Vice-Mayor in the City of Paraaque, appear to be altered, falsified or fabricated.
4. The will of the legitimate voters of the City of Paraaque were denigrated during the
11 May 1998 election as a consequence of the fact that an indeterminable number of
flying voters were allowed to vote.
xxx
5. The 11 May 1998 elections for local officials in the City of Paraaque has likewise
been marred by massive vote buying. To cite but one example, in Precinct Nos. 111112 at the Tambo Elementary School in the City of Paraaque, a certain Dennis
Sambilay Agayan (Agayan) was arrested for voting in substitution of registered voter
Ramon Vizcarra. Agayan admitted before SPO1 Alberto V. Parena that he was paid
One Hundred Fifty Pesos (P150.00) to vote at precincts No. 111-112 and use the
name Ramon Vizcarra. As proof of the foregoing, attached hereto as Annex E is the
Information dated 11 May 1998 filed against Agayan.
The magnitude of the vote buying in the 11 May 1998 local elections in the City of
Paraaque, is such that the voters involved number in the thousands. Evidence in this
regard shall be presented in the proper time.
6. Also, there have been several instances where purported voters were depositing
more than one (1) ballot inside the ballot box. As evidence thereof, attached hereto as
Annex F is the Affidavit of a certain Rosemarie Pascua of Barangay Baclaran, City of
Paraaque.
7. The foregoing incidents alone actually suffices to establish that a failure of elections
should be declared on the ground that the will of the electorate of the City of
Paraaque has been denigrated. The elections for the office of the Vice-Mayor in the
City of Paraaque, on 11 May 1998 cannot be considered as reflective of the true will
of the electorate. However, the anomalies do not stop there.
TOMAS T. BANAGA, JR., petitioner, vs. COMMISSION ON ELECTIONS and

FLORENCIO M. BERNABE, JR.,respondents.
8. In addition to the foregoing, during the canvassing of votes before the Board of
Canvassers, it was discovered that numerous election returns contain glaring
discrepancies and are replete with blatant omissions, not to mention the fact that
several election returns appeared to be tampered with or appear to be fabricated. The
Honorable Commission should seriously consider these anomalies specially on
account of the fact that the lead of the respondent over the petitioner is a mere Three
Thousand Seven (3,007) votes.
DECISION
xxx
QUISUMBING, J.:
This special civil action for certiorari seeks to annul the en banc resolution of
public respondent Commission on Elections promulgated on June 29, 1998, in a
COMELEC special action case, SPA No. 98-383.
9. Moreover, several Election Returns are found to have glaring discrepancies which
may materially alter the results of the election for the office of Vice-Mayor in the City of
Paraaque.
xxx
10. Finally, what seriously casts doubt on the legitimacy of the elections for the office
of the Vice-Mayor in the City of Paraaque is the fact that the results thereof are
statistically improbable. A case in point is precinct number 483 where petitioner
shockingly is supposed to have received zero (0) votes. Petitioner is the incumbent
Vice-Mayor of the City of Paraaque. It is, thus, impossible that he will receive zero
(0) votes in any given precinct.[2]
Petitioner asked the COMELEC for the following reliefs:
1. After trial, judgment be rendered as follows:
1.1 Declaring a failure of elections, or declaring the annulment of the elections, for the
office of the Vice-Mayor in the City of Paraaque, Metro Manila;
1.2. Annulling the proclamation of the respondent as the elected Vice-Mayor of the City
of Paraaque, Metro Manila, during the 11 May 1998 elections; and
1.3. Declaring that special elections should be held for the office of Vice-Mayor in the
City of Paraaque, Metro Manila.
2. Alternatively, in the remote event that the Honorable Commission does not render
judgment as aforesaid, an order be issued to the Treasurer of the City of Paraaque to
bring and present before this Honorable Commission on or before the day of the
hearing of the Election Protest, the ballot boxes, copies of the registry lists, election
returns, the minutes of election in all precincts, and the other documents used in the
local elections for the Office of the Vice-Mayor held on 11 May 1998 in the said City,
for the Honorable Commission to re-examine and revise the same; and
3. After due trial judgment be rendered as follows:
3.1. The election of respondent FLORENCIO M. BERNABE, JR., for the office of ViceMayor in the City of Paraaque, Metro Manila be annulled;
3.2. The petitioner, TOMAS T. BANAGA, JR., be adjudged as the duly elected ViceMayor in the City of Paraaque, during the 11 May 1998 local elections; and
3.3. The expenses, costs and damages incurred in these proceedings be assessed
against the respondent.
Other just and equitable reliefs are likewise prayed for.[3]
On June 29, 1998, the COMELEC dismissed petitioners suit. It held that the
grounds relied upon by petitioner do not fall under any of the instances enumerated in
Section 6 of the Omnibus Election Code. The election tribunal concluded that based
on the allegations of the petition, it is clear that an election took place and that it did
not result in a failure to elect.[4]
Considering that a motion for reconsideration of a COMELEC en banc ruling is
prohibited, except in a case involving an election offense, [5]and aggrieved by the
COMELECs dismissal of his suit, petitioner timely filed the instant petition
for certiorari with this Court.
Before us, petitioner now claims that the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction when it dismissed his
petition motu propio without any basis whatsoever and without giving him the benefit of
a hearing. He contends that:
I
THE PETITION DATED 28 MAY 1998 IS ESSENTIALLY AN ELECTION
PROTEST. HENCE, THE COMELEC COULD NOT LEGALLY DISMISS THE
ENTIRE PETITION MERELY ON THE GROUND THAT THERE WAS
ALLEGEDLY NO FAILURE OF ELECTION IN THE CITY OF PARANAQUE
DURING THE 11 MAY 1998 ELECTIONS.
II
THE AUTHORITY RELIED UPON BY THE COMELEC AS BASIS FOR THE

DISMISSAL OF THE PETITION DATED 28 MAY 1998, THAT OF EDWIN
SAR[D]EA, ET. AL. V. COMELEC, ET. AL., AND MITMUG V. COMELEC, ARE
NOT APPLICABLE TO THE CASE AT BAR CONSIDERING THAT ASIDE
FROM BEING AN ELECTION PROTEST, THE SAID PETITION SEEKS THE
ANNULMENT OF AN ELECTION PURSUANT TO THE DOCTRINE LAID
DOWN BY THE HONORABLE SUPREME COURT IN LOONG V. COMELEC.
[6]
Clearly, the issue for our resolution is whether or not public respondent acted
with grave abuse of discretion in dismissing petitioners petition, in the light of
petitioners foregoing contentions.
While petitioner may have intended to institute an election protest by praying
that said action may also be considered an election protest, in our view, petitioners
action is a petition to declare a failure of elections or annul election results. It is not an
election protest.
First, his petition before the COMELEC was instituted pursuant to Section 4 of
Republic Act No. 7166 in relation to Section 6 of the Omnibus Election Code. Section 4
of RA 7166 refers to postponement, failure of election and special elections[7] while
Section 6 of the Omnibus Election Code relates to failure of election. It is simply
captioned as Petition to Declare Failure of Elections and/or For Annulment of
Elections.
Second, an election protest is an ordinary action while a petition to declare a
failure of elections is a special action under the 1993 COMELEC Rules of Procedure
as amended. An election protest is governed by Rule 20 on ordinary actions, while a
petition to declare failure of elections is covered by Rule 26 under special actions.
In this case, petitioner filed his petition as a special action and paid the
corresponding fee therefor. Thus, the petition was docketed as SPA-98-383. This
conforms to petitioners categorization of his petition as one to declare a failure of
elections or annul election results. In contrast, an election protest is assigned a docket
number starting with EPC, meaning election protest case.
Third, petitioner did not comply with the requirements for filing an election
protest. He failed to pay the required filing fee and cash deposits for an election
protest. Failure to pay filing fees will not vest the election tribunal jurisdiction over the
case. Such procedural lapse on the part of a petitioner would clearly warrant the
outright dismissal of his action.
Fourth, an en banc decision of COMELEC in an ordinary action becomes final
and executory after thirty (30) days from its promulgation, while an en banc decision in
a special action becomes final and executory after five (5) days from promulgation,
unless restrained by the Supreme Court. [8] For that reason, a petition cannot be treated
as both an election protest and a petition to declare failure of elections.
Fifth, the allegations in the petition decisively determine its nature. Petitioner
alleged that the local elections for the office of vice-mayor in Paraaque City held on
May 11, 1998, denigrates the true will of the people as it was marred with widespread
anomalies on account of vote buying, flying voters and glaring discrepancies in the
election returns. He averred that those incidents warrant the declaration of a failure of
elections.[9]
Given these circumstances, public respondent cannot be said to have gravely
erred in treating petitioners action as a petition to declare failure of elections or to
annul election results.
The COMELECs authority to declare a failure of elections is provided in our
election laws. Section 4 of RA 7166 provides that the COMELEC sitting en banc by a
majority vote of its members may decide, among others, the declaration of failure of
election and the calling of special election as provided in Section 6 of the Omnibus
Election Code. Said Section 6, in turn, provides as follows:
Section 6. Failure of Elections. --- If, on account of force majeure, violence, terrorism,
fraud or other analogous causes the election in any polling place has not been held on
the date fixed, or had been suspended before the hour fixed by law for the closing of
the voting, or after the voting and during the preparation and the transmission of the
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 verified petition by any
There are 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 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
to elect on account of force majeure, violence, terrorism, fraud or other analogous
causes. In these instances, there is a resulting failure to elect. This is obvious in the
first two scenarios, where the election was not held and where the election was
suspended. As to the third scenario, where the preparation and the transmission of
the election returns give rise to the consequence of failure to elect must as aforesaid,
is interpreted to mean that nobody emerged as a winner.[10]
Kalinggalang Calauag. The COMELEC dismissed the latter action on ground of

untimeliness of the petition, despite a finding that the same badges of fraud evident
from the results of the election based on the certificates of canvass of votes in Parang,
are also evident in the election results of the five mentioned municipalities. We ruled
that COMELEC committed grave abuse of discretion in dismissing the petition as there
is no law which provides for a reglementary period to file annulment of elections when
there is yet no proclamation. The election resulted in a failure to elect on account of
fraud. Accordingly, we ordered the COMELEC to reinstate the aforesaid
petition. Those circumstances, however, are not present in this case, so that reliance
on Loong by petitioner Banaga is misplaced.
Before the COMELEC can act on a verified petition seeking to declare a failure
of election two conditions must concur, 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.[11] Note that the cause of such failure of election could only be any of the
following: force majeure, violence, terrorism, fraud or other analogous causes.
Petitioner argues that the COMELEC should not have treated his prayer for
annulment of elections as a prayer for declaration of failure of elections. [16] This
argument is plainly gratuitous as well as immaterial. A prayer to declare failure of
elections and a prayer to annul the election results for vice mayor in this case are
actually of the same nature. Whether an action is for declaration of failure of elections
or for annulment of election results, based on allegations of fraud, terrorism, violence
or analogous cause, the Omnibus Election Code denominates them similarly. [17] No
positive gain will accrue to petitioners cause by making a distinction without a
difference.
We have painstakingly examined the petition filed by petitioner Banaga before

the COMELEC. But we found that petitioner did not allege at all that elections were
either not held or suspended. Neither did he aver that although there was voting,
nobody was elected. On the contrary, he conceded that an election took place for the
office of vice-mayor of Paraaque City, and that private respondent was, in fact,
proclaimed elected to that post. While petitioner contends that the election was tainted
with widespread anomalies, it must be noted that to warrant a declaration of failure of
election the commission of fraud must be such that it prevented or suspended the
holding of an election, or marred fatally the preparation and transmission, custody and
canvass of the election returns. These essential facts ought to have been alleged
clearly by the petitioner below, but he did not.
Finally, petitioner claims that public respondent gravely abused its discretion
when it dismissed his petition motu propio. However, the fact that a verified petition
has been filed does not mean that a hearing on the case should first be held before
COMELEC can act on it. The petition to declare a failure of election and/or to annul
election results must show on its face that the conditions necessary to declare a failure
to elect are present. In their absence, the petition must be denied outright. [18] Public
respondent had no recourse but to dismiss petition. Nor may petitioner now complain
of denial of due process, on this score, for his failure to properly file an election
protest. The COMELEC can only rule on what was filed before it. It committed no
grave abuse of discretion in dismissing his petition to declare failure of elections
and/or for annulment of elections for being groundless, hence without merit.
In Mitmug vs. COMELEC,[12] petitioner instituted with the COMELEC an action

to declare failure of election in forty-nine precincts where less than a quarter of the
electorate were able to cast their votes. He also lodged an election protest with the
Regional Trial Court disputing the result of the election in all precincts in his
municipality. The COMELEC denied motu propio and without due notice and hearing
the petition to declare failure of election despite petitioners argument that he has
meritorious grounds in support thereto, that is, massive disenfranchisement of voters
due to terrorism. On review, we ruled that the COMELEC did not gravely abuse its
discretion in denying the petition. It was not proven that no actual voting took
place. Neither was it shown that even if there was voting, the results thereon would be
tantamount to failure to elect. Considering that there is no concurrence of the
conditions seeking to declare failure of election, there is no longer need to receive
evidence on alleged election irregularities.
WHEREFORE, the instant petition is DISMISSED. The assailed

RESOLUTION of public respondent is AFFIRMED. Costs against petitioner.
In Sardea vs. COMELEC,[13] all election materials and paraphernalia with the
municipal board of canvassers were destroyed by the sympathizers of the losing
mayoralty candidate. The board then decided to use the copies of election returns
furnished to the municipal trial court. Petitioner therein filed a petition to stop the
proceedings of the board of canvassers on the ground that it had no authority to use
said election returns obtained from the municipal trial court. The petition was
denied. Next, he filed a petition assailing the composition of the board of
canvassers. Despite that petition, the board of canvassers proclaimed the winning
candidates. Later on, petitioner filed a petition to declare a failure of election alleging
that the attendant facts would justify declaration of such failure. On review, we ruled
that petitioners first two actions involved pre-proclamation controversies which can no
longer be entertained after the winning candidates have been proclaimed. Regarding
the petition to declare a failure of election, we held that the destruction and loss of
copies of election returns intended for the municipal board of canvassers on account
of violence is not one of the causes that would warrant the declaration of failure of
election. The reason is that voting actually took place as scheduled and other valid
election returns still existed. Moreover, the destruction or loss did not affect the result
of the election. We also declared that there is failure of elections only when the will of
the electorate has been muted and cannot be ascertained. If the will of the people is
determinable, the same must as far as possible be respected.
These aforecited cases are instructive in the resolution of the present case
because they involve similar actions and issues. No error could be attributed to public
respondent for its reliance on these precedents.
In Loong vs. Comelec,[14] the petition for annulment of election results or to
declare failure of elections in Parang, Sulu, on the ground of statistical improbability
and massive fraud was granted by the COMELEC. [15] Even before the technical
examination of election documents was conducted, the COMELEC already observed
badges of fraud just by looking at the election results in Parang. Nevertheless, the
COMELEC dismissed the petition for annulment of election results or to declare failure
of elections in the municipalities of Tapul, Panglima Estino, Pata, Siasi and
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., on official leave.
Pardo, J., no part.
Republic Act 7166, Section 4. Postponement, Failure of Election and Special

Elections.--- The postponement, declaration of failure of election and the calling of
special elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code
shall be decided by the Commission sitting en banc by a majority vote of its
members. The cause for the declaration of a failure of election may occur before or
after the casting of votes or on the day of election. Xxx
[7]
Banaga V Comelec
BANAGA, JR. v. COMELEC

G.R. No. 134696, July 31, 2000
Facts: Petitioner Banaga, Jr. and respondent Bernabe, Jr. were both candidates for
vice-mayor of the City of Paraaque in the May 1998 election. In said election, the city
board of canvassers proclaimed respondent Bernabe, Jr., as the winner for having
garnered 71,977 votes over petitioner Banaga, Jr.s 68,970 votes. Dissatisfied with
the result, petitioner filed with the COMELEC on May 1998, a Petition to Declare
Failure of Elections and/or For Annulment of Elections, alleging that said election was
replete with election offenses, such as vote buying and flying voters. He also alleged
that numerous Election Returns pertaining to the position of Vice-Mayor in the City of
Paraaque appear to be altered, falsified or fabricated. In fact, there were people
[G.R. No. 133495. September 3, 1998]
arrested who admitted the said election offenses. Therefore, the incidents were
sufficient to declare a failure of elections because it cannot be considered as the true
will of the people.
BENJAMIN U. BORJA, JR., petitioner vs. COMMISSION ON ELECTIONS and

JOSE T. CAPCO, JR., respondents.
DECISION
Petitioner Banaga, Jr. is praying that he should be adjudged as the duly elected ViceMayor in the City of Paraaque, during the May 1998 local elections. Respondent
MENDOZA, J.:
COMELEC dismissed petitioners suit and held that the election offenses relied
upon by petitioner do not fall under any of the instances enumerated in Section 6 of
the Omnibus Election Code. The election tribunal concluded that based on the
allegations of the petition, it is clear that an election took place and that it did not result
in a failure to elect and therefore, cannot be viewed as an election protest.
Issue:
WON petition to declare a failure of elections and/or for annulment of election is
considered as an election protest.
WON respondent COMELEC acted with grave abuse of discretion in dismissing
petitioners petition, in the light of petitioners foregoing contentions.
Ruling:
1) No. Mr. Banaga, Jr.s petition docketed as SPA-98-383 before the COMELEC
was a special action under the 1993 COMELEC Rules of Procedure. An election
This case presents for determination the scope of the constitutional provision
barring elective officials, with the exception of barangay officials, from serving more
than three consecutive terms. In particular, the question is whether a vice-mayor who
succeeds to the office of mayor by operation of law and serves the remainder of the
term is considered to have served a term in that office for the purpose of the threeterm limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on
January 18, 1988 for a term ending June 30, 1992. On September 2, 1989, he
became mayor, by operation of law, upon the death of the incumbent, Cesar Borja. On
May 11, 1992, he ran and was elected mayor for a term of three years which ended on
June 30, 1995. On May 8, 1995, he was reelected mayor for another term of three
years ending June 30, 1998.[1]
On March 27, 1998, private respondent Capco filed a certificate of candidacy
for mayor of Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U.
Borja, Jr., who was also a candidate for mayor, sought Capcos disqualification on the
theory that the latter would have already served as mayor for three consecutive terms
by June 30, 1998 and would therefore be ineligible to serve for another term after that.
protest is an ordinary governed by Rule 20 on ordinary actions, while a petition to

declare failure of elections is covered by Rule 26 under special actions. Petitioner also
did not comply with the requirements for filing an election protest such as failing to pay
filing fee and cash deposits for an election protest.
2) No. Respondent COMELEC committed no grave abuse of discretion in dismissing
the petition to declare failure of elections and/or for annulment of elections for being
groundless. The petition to declare a failure of election and/or to annul election results
must show on its face that the conditions necessary to declare a failure to elect are
present. Respondent COMELEC only based its decision on the provisions of the
Omnibus Election Code with regard to declaring a failure of election. There are 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 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.
The instances being not present in the petition of Mr. Banaga, Jr. The respondent
COMELEC have no other recourse but to dismiss the petition.
EN BANC
On April 30, 1998, the Second Division of the Commission on Elections ruled in
favor of petitioner and declared private respondent Capco disqualified from running for
reelection as mayor of Pateros. [2] However, on motion of private respondent, the
COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to
run for mayor in the May 11, 1998 elections.[3] The majority stated in its decision:
In both the Constitution and the Local Government Code, the three-term limitation
refers to the term of office for which the local official was elected. It made no reference
to succession to an office to which he was not elected. In the case before the
Commission, respondent Capco was not elected to the position of mayor in the
January 18, 1988 local elections. He succeeded to such office by operation of law and
served for the unexpired term of his predecessor. Consequently, such succession into
office is not counted as one (1) term for purposes of the computation of the threeterm limitation under the Constitution and the Local Government Code.
Accordingly, private respondent was voted for in the elections. He received
16,558 votes against petitioners 7,773 votes and was proclaimed elected by the
Municipal Board of Canvassers.
This is a petition for certiorari brought to set aside the resolution, dated May 7,
1998, of he COMELEC and to seed a declaration that private respondent is
disqualified to serve another term as Mayor of Pateros, Metro Manila.
Petitioner contends that private respondent Capcos service as mayor from
September 2, 1989 to June 30, 992 should be considered as service for full one term,
and since he thereafter served from 1992 to 1998 two more terms as mayor, he should
be considered to have served three consecutive terms within the contemplation of Art.
X, 8 of the Constitution and 43(b) of the Local Government Code. Petitioner
stresses the fact that, upon the death of Mayor Cesar Borja on September 2, 1989,
private respondent became the mayor and thereafter served the remainder of the
term. Petitioner argues that it is irrelevant that private respondent became mayor by
succession because the purpose of the constitutional provision in limiting the number
of terms elective local officials may serve is to prevent a monopolization of political
power.
This contention will not bear analysis. Article X, 8 of the Constitution

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.
This provision is restated in 43(b) of the Local Government Code (R.A. No. 7160):
Sec. 43. Term of Office - . . .
(b) No local elective official shall serve for more than three (3) consecutive
terms in the same position. Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the continuity of service for the
full term for which the elective official concerned was elected.
First, to prevent the establishment of political dynasties is not the only policy
embodied in the constitutional provision in question. The other policy is that of
enhancing the freedom of choice of the people. To consider, therefore, only stay in
office regardless of how the official concerned came to that office whether by
election or by succession by operation of law would be to disregard one of the
purposes of the constitutional provision in question.
Thus, a consideration of the historical background of Art. X, 8 of the
Constitution reveals that the members of the Constitutional Commission were as much
concerned with preserving the freedom of choice of the people as they were with
preventing the monopolization of political power. Indeed, they rejected a proposal put
forth by Commissioner Edmundo F. Garcia that after serving three consecutive terms
or nine years there should be no further reelection for local and legislative
officials. Instead, they adopted the alternative proposal of Commissioner Christian
Monsod that such officials be simply barred from running for the same position in the
succeeding election following the expiration of the third consecutive term. [4] Monsod
warned against prescreening candidates [from] whom the people will choose as a
result of the proposed absolute disqualification, considering that the draft constitution
provision recognizing peoples power.[5]
Commissioner Blas F. Ople, who supported the Monsod proposal, said:
The principle involved is really whether this Commission shall impose a temporary or a
perpetual disqualification on those who have served their terms in accordance with the
limits on consecutive service as decided by the Constitutional Commission. I would be
very wary about this Commission exercising a sort of omnipotent power in order to
disqualify those who will already have served their terms from perpetuating
themselves in office. I think the Commission achieves its purpose in establishing
safeguards against the excessive accumulation of power as a result of consecutive
terms. We do put a cap on consecutive service in the case of the President, six
years; in the case of the Vice-President, unlimited; and in the case of the Senators,
one reelection. In the case of the Members of Congress, both from the legislative
districts and from the party list and sectoral representation, this is now under
discussion and later on the policy concerning local officials will be taken up by the
Committee on Local Governments. The principle remains the same. I think we want
to prevent future situations where, as a result of continuous service and frequent
reelections, officials from the President down to the municipal mayor tend to develop a
proprietary interest in their position and to accumulate those powers and perquisites
that permit them to stay on indefinitely or to transfer these posts to members of their
families in a subsequent election. I think that is taken care of because we put a gap
on the continuity or the unbroken service of all of these officials. But where we now
decide to put these prospective servants of the people or politicians, if we want to use
the coarser term, under a perpetual disqualification, I have a feeling that we are taking
away too much from the people, whereas we should be giving as much to the people
as we can in terms of their own freedom of choice.[6]
Other commissioners went on record against perpetually disqualifying

elective officials who have served a certain number of terms as this would deny the
right of the people to choose. As Commissioner Yusup R. Abubakar asked, why
should we arrogate unto ourselves the right to decide what the people want? [7]
Commisioner Felicitas S. Aquino spoke in the same vein when she called on
her colleagues to "allow the people to exercise their own sense of proportion and
[rely] on their own strength to curtail power when it overreaches itself.[8]
Commissioner Teodoro C. Bacani stressed: Why should we not leave
[perpetual disqualification after serving a number of terms] to the premise accepted by
practically everybody here that our people are politically mature? Should we use this
assumption only when it is convenient for us, and not when it may also lead to a
freedom of choice for the people and for politicians who may aspire to serve them
longer?[9]
Two ideas thus emerge from a consideration of the proceedings of the
Constitutional Commission. The first is the notion of service of term, derived from the
concern about the accumulation of power as a result of a prolonged stay in office. The
second is the idea of election, derived from the concern that the right of the people to
choose those whom they wish to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the
Constitution did so on the assumption that the officials concerned were serving by
reason of reelection. This is clear from the following exchange in the Constitutional
Commission concerning term limits, now embodied in Art. VI 4 and 7 of the
Constitution, for members of Congress:
MR. GASCON. I would like to ask a question with regard to the issue after the
second term. We will allow the Senator to rest for a period of time before
he canrun again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before if the Gentlemen
will remember- was: How long will that period of rest be? Will it be one
election which is three years or one term which is six years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed
the view that during the election following the expiration of the first 12
years, whether such election will be on the third year or on the sixth year
thereafter, this particular member of the Senate can run. So it is not really
a period of hibernation for six years. That was the Committees stand.[10]
Indeed, a fundamental tenet of representative democracy is that the people
should be allowed to choose whom they please to govern them. [11] To bar the election
of a local official because he has already served three terms, although the first as a
result of succession by operation of law rather than election, would therefore be to
violate this principle.
Second, not only historical examination but textual analysis as well supports
the ruling of the COMELEC that Art. X, 8 contemplates service by local officials for
three consecutive terms as a result of election. The first sentence speaks of the term
of office of elective local officials and bars such official[s] from serving for more than
three consecutive terms. The second sentence, in explaining when an elective local
official may be deemed to have served his full term of office, states that 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. The term served must therefore be one for which [the official concerned]
was elected. The purpose of this provision is to prevent a circumvention of the
limitation on the number of terms an elective official may serve. Conversely, if he is
not serving a term for which he was elected because he is simply continuing the
service of the official he succeeds, such official cannot be considered to have fully
served the term now withstanding his voluntary renunciation of office prior to its
expiration.
Reference is made to Commissioner Bernas comment on Art. VI, 7, which

similarly bars members of the House of Representatives from serving for more than
three terms. Commissioner Bernas states that if one is elected Representative to
serve the unexpired term of another, that unexpired term, no matter how short, will be
considered one term for the purpose of computing the number of successive terms
allowed.[12]
This is actually based on the opinion expressed by Commissioner Davide in
answer to a query of Commissioner Suarez: For example, a special election is called
for a Senator, and the Senator newly elected would have to serve the unexpired
portion of the term. Would that mean that serving the unexpired portion of the term is
already considered one term? So, half a term, which is actually the correct statement,
plus one term would disqualify the Senator concerned from running? Is that the
meaning of this provision on disqualification, Madam President? Commissioner
Davide said: Yes, because we speak of term and if there is a special election, he
will serve only for the unexpired portion of that particular term plus one more term for
the Senator and two more terms for the Members of the Lower House.[13]
There is a difference, however, between the case of a vice-mayor and that of a
member of the House of Representatives who succeeds another who dies, resigns,
becomes incapacitated, or is removed from office. The vice-mayor succeeds to the
mayorship by operation of law.[14] On the other hand, the Representative is elected to
fill the vacancy.[15] In a real sense, therefore, such Representative serves a term for
which he was elected. As the purpose of the constitutional provision is to limit the right
ot be elected and to serve in Congress, his service of the unexpired term is rightly
counted as his first term. Rather than refute what we believe to be the intendment of
Art. X, 8 with regard to elective local officials, the case of a Representative who
succeeds another confirms the theory.
of design. Hence, his service in that office should not be counted in the application of
any term limit.
To recapitulate, the term limit for elective local officials must be taken to refer to
the right to be elected as well as the right to serve in the same elective
position. Consequently, it is not enough that an individual has served three
consecutive terms in an elective local office, he must also have been elected to the
same position for the same number of times before the disqualification can apply. This
point can be made clearer by considering the following cases or situations:
Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death
of the incumbent. Six months before the next election, he resigns and is twice elected
thereafter. Can he run again for mayor in the next election.
Yes, because although he has already first served as mayor by succession and
subsequently resigned from office before the full term expired, he has not actually
served three full terms in all for the purpose of applying the term limit. Under Art. X,
8, voluntary renunciation of the office is not considered as an interruption in the
continuity of his service for the full term only if the term is one for which he was
elected. Since A is only completing the service of the term for which the deceased
and not he was elected. A cannot be considered to have completed one term. His
resignation constitutes an interruption of the full term.
Case No. 2. Suppose B is elected Mayor and, during his first term, he is twice
suspended for misconduct for a total of 1 year. If he is twice reelected after that, can
he run for one more term in the next election?
Yes, because he has served only two full terms successively.
Petitioner also cites Art. VII, 4 of the Constitution which provides for
succession of the Vice-President to the Presidency in case of vacancy in that
office. After stating that The President shall not be eligible for any reelection, this
provision says that No person who has succeeded as President and has served as
such for more than four years shall be qualified for election to the same office at any
time. Petitioner contends that, by analogy, the vice-mayor should likewise be
considered to have served a full term as mayor if he succeeds to the latters office and
serves for the remainder of the term.
The framers of the Constitution included such a provision because, without it,
the Vice-President, who simply steps into the Presidency by succession would be
qualified to run for President even if he has occupied that office for more than four
years. The absence of a similar provision in Art. X, 8 on elective local officials throws
in bold relief the difference between the two cases. It underscores the constitutional
intent to cover only the terms of office to which one may have beenelected for
purpose of the three-term limit on local elective officials, disregarding for this purpose
service by automatic succession.
There is another reason why the Vice-President who succeeds to the
Presidency and serves in that office for more than four years is ineligible for election as
President. The Vice-President is elected primarily to succeed the President in the
event of the latters death, permanent disability, removal or resignation. While he may
be appointed to the cabinet, his becoming so is entirely dependent on the good graces
of the President. In running for Vice-President, he may thus be said to also seek the
Presidency. For their part, the electors likewise choose as Vice-President the
candidate who they think can fill the Presidency in the event it becomes
vacant. Hence, service in the presidency for more than four years may rightly be
considered as service for a full term.
This is not so in the case of the vice-mayor. Under the local Government
Code, he is the presiding officer of the sanggunian and he appoints all officials and
employees of such local assembly. He has distinct powers and functions, succession
to mayorship in the event of vacancy therein being only one of them. [16] It cannot be
said of him, as much as of the Vice-President in the event of a vacancy in the
Presidency, that in running for vice-mayor, he also seeks the mayorship. His
assumption of the mayorship in the event of vacancy is more a matter of chance than
In both cases, the mayor is entitled to run for reelection because the two
conditions for the application of the disqualification provisions have not concurred,
namely, that the local official concerned has been elected three consecutive times and
that he has fully served three consecutive terms. In the first case, even if the local
official is considered to have served three full terms notwithstanding his resignation
before the end of the first term, the fact remains that he has not been electedthree
times. In the second case, the local official has been elected three consecutive times,
but he has not fully served three consecutive terms.
Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a
total failure of the two conditions to concur for the purpose of applying Art. X
8. Suppose he is twice elected after that term, is he qualified to run again in the next
election?
Yes, because he was not elected to the office of the mayor in the first term but simply
found himself thrust into it by operation of law. Neither had he served the full term
because he only continued the service, interrupted by the death , of the deceased
mayor.
To consider C in the third case to have served the first term in full and therefore
ineligible to run a third time for reelection would be not only to falsify reality but also to
unduly restrict the right of the people to choose whom they wish to govern them. If the
vice-mayor turns out to be a bad mayor, the people can remedy the situation by simply
not reelecting him for another term. But if, on the other hand, he proves to be a good
mayor, there will be no way the people can return him to office (even if it is just the
third time he is standing for reelection) if his service of the first term is counted as one
of the purpose of applying the term limit.
To consider C as eligible for reelection would be in accord with the
understanding of the Constitutional Commission that while the people should be
protected from the evils that a monopoly of political power may bring about, care
should be taken that their freedom of choice is not unduly curtailed.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Panganiban, Martinez, Quisumbing and Purisima, JJ., concur.
Regalado, J., on official leave.
he was elected.
To consider Capco to have served the first term in full (when he
succeeded the mayorship upon demise of Cesar Borja) and therefore
ineligible to run a third time for reelection would be not only to
falsify reality but also to unduly restrict the right of the people
to choose whom they wish to govern them.
Hence, petition id dismissed.
EN BANC
BORJA, JR. VS. COMELEC

Background:
According to Article X, Section 8 of the Constitution, the term of
elective officials, except for barangay officials, which shall be
determined by law, shall be three years and no such official shall
serve for more than three consecutive terms.
This provision was restated in the Section 43 of the Local
Government Code which states that No local elective official shall
serve for more than three consecutive terms in the same position.
Facts:
Private respondent Jose T. Capco, Jr. was elected Vice Mayor of
Pateros on January 18, 1988 for a term ending June 30, 1992.
On September 2, 1989, he became Mayor, by operation of law, upon the
death of the incumbent, Cesar Borja.
On May 11, 1992, he ran and was elected Mayor for a term of three
years which ended on June 30, 1995.
On May 8, 1995, he was re-elected Mayor for another term of three
years ending July 30, 1998.
On March 27, 1998, Capco filed a certificate of candidacy for Mayor
of pateros relative to the May 11, 1998 elections.
Petitioner Benjamin Borja, Jr., who was also a candidate for Mayor,
sought Capco's disqualification on the theory that the latter would
already have served as mayor for three consecutive terms by June 30,
1998 and would thereafter be ineligible to serve for another term
after that. (1989-1992 when he succeeded the deceased Mayor Cesar
Borja; 1992-1995 when he ran for Mayor and won; and 1995-1998 when
he was re-elected. Pag isasama yung period na nag-succeed siya
magiging three consecutive terms na, ibig sabihin nun, di na siya
ulit puedeng tumakbo for that position).
The COMELEC ruled in favor of Capco saying that "In both the
Constitution and the Local Government Code, the three-term
limitation refers to the term of office for which the local official
was elected. It made no reference to succession to an office to
which he was not elected."
Capco won in the elections against Borja.
Hence, this petition.
Issue: Whether a vice-mayor who succeeds to the office of mayor by
operation of law and serves the remainder of the term is considered
to have served a term in that office for the purpose of the threeterm limit.
Court said:
The term served must therefore be one "for which [the official
concerned] was elected. If he is not serving a term for which he was
elected because he is simply continuing the service of the official
he succeeds, such official cannot be considered to have fully served
the term notwithstanding his voluntary renunciation of office prior
to its expiration.
There is a difference between the case of a vice-mayor and that of a
member of the House of Representatives. Who succeeds another who
dies, resigns, becomes incapacitated, or is removed from office. The
vice-mayor succeeds to the mayorship by operation of law. On the
other hand, the Representative is elected to fill the vacancy. In a
real sense, therefore, such representative serves a term for which
[G. R. No. 150312. July 18, 2002]
BAGO P. PASANDALAN, petitioner, vs. COMMISSION ON ELECTIONS and BAI

SALAMONA L. ASUM,respondents.
DECISION
CARPIO, J.:
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 Comelec can dismiss outright the petition for lack
of merit. No grave abuse of discretion can be attributed to the Comelec in such a
case because the Comelec must exercise with utmost circumspection the power to
declare a failure of election to prevent disenfranchising voters and frustrating
the electorates will.
The Case
Before us is a petition for review on certiorari of the Resolution[1] of the

Commission on Elections en banc dated October 12, 2001 dismissing petitioner Bago
P. Pasandalans (Pasandalan for brevity) petition to declare a failure of election.
Pasandalan and private respondent Bai Salamona L. Asum (Asum for brevity)
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[2] before public respondent
Commission on Elections (Comelec for brevity) seeking to nullify the election results
in Barangay Cabasaran (Precinct Nos. 9A, 10A, 11A and 12A), Barangay Deromoyod
(Precinct Nos. 24A, 25A and 26A), Lamin (Precinct Nos. 29A and 30A), Barangay
Wago (Precinct Nos. 46A, 47A and 48A), Barangay Meniros (Precinct Nos. 32A, 33A
and 34A), Barangay Bualan (Precinct Nos. 6A, 7A and 8A) and Barangay Pantaon
(Precinct Nos. 38A and 39A), all of Lumbayanague, Lanao del Sur.
Petitioner alleged that on May 14, 2001, 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. The incident allegedly marred the election results in Precinct Nos. 9A-12A,
24A-26A and 29A-30A.
In Precinct Nos. 46A, 47 and 48A, the members of the Board of Election
Inspectors (BEI for brevity) 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.
In Precinct Nos. 6A-8A, 32A-34A and 38A-39A, 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.
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.
Under Republic Act No. 7166, otherwise known as The Synchronized

Elections Law of 1991,[5] the Comelec 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:
On October 12, 2001, the Comelec issued a Resolution dismissing the petition
for lack of merit.[3]
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
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.
Hence, this petition.
The Comelecs Ruling
The Comelec 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 Comelec 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. First, the elections in the questioned precincts were held as
scheduled. Second, the gunshots heard during the casting of votes did not suspend
the election as the voting continued normally. Third, Asum was elected by a plurality
of votes.
The authenticity and integrity of the election returns were left undisturbed
throughout the preparation, transmission, custody and canvass of the
returns. Pasandalan alleges fraud and terrorism, in that there was massive
substitution of voters, firing of guns to frighten the voters, and failure of the BEI
members to sign at the back of some official ballots and to remove the detachable
coupons. The Comelec ruled that these allegations are better ventilated in an election
contest.
The Comelec 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 Comelec considered these
affidavits self-serving and insufficient to annul the results of the election. Thus, the
Comelec dismissed the petition for lack of merit.
The Issues
Pasandalan now assails the Comelecs dismissal of his petition, raising the
following issues:
1. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN
EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN
DISMISSING THE PETITION IN SPA NO. 01-305 FOR ALLEGED LACK OF MERIT;
2. WHETHER THE COMMISSION ON ELECTIONS COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN NOT ANNULING
THE ELECTION OR DECLARING A FAILURE OF ELECTION IN THE SIXTEEN (16)
QUESTIONED PRECINCTS;
3. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN
EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN
NOT DECLARING AS ILLEGAL, NULL AND VOID AB INITIO THE PROCLAMATION
OF THE PRIVATE RESPONDENT AS THE DULY ELECTED MAYOR OF
LUMBAYANAGUE, LANAO DEL SUR IN THE LAST MAY 14, 2001 REGULAR
ELECTIONS AND MAY 30, 2001 SPECIAL ELECTIONS.[4]
The Courts Ruling
We rule that the petition is without merit. The Comelec 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.
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.[6]
What is common in these three instances is the resulting failure to elect.[7] In the first
instance, no election is held while in the second, the election is suspended. [8] In the
third instance, circumstances attending the preparation, transmission, custody or
canvas of the election returns cause a failure to elect. The term failure to elect means
nobody emerged as a winner. [9]
Pasandalan asserts that the conditions for the declaration of failure of election
are present in this case. The volley of shots from high-powered firearms allegedly
forced the voters to scamper away from the polling place, paving the way for Asums
supporters to write the name of Asum on the ballots. The gunfire also frightened
Pasandalans poll watchers. The heavy firing allegedly suspended or prevented the
holding of elections in the contested precincts, resulting in failure to elect. The victory
of Asum is thus put in serious doubt.
We do not agree. 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. [10] The fact alone that actual voting
took place already militates against Pasandalans cause. Also, 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. Terrorism may not be invoked to declare a failure of election and to
disenfranchise the greater number of the electorate through the misdeeds of only a
few,[11] absent any of the three instances specified by law.
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. [12] The conditions for the
declaration of failure of election are stringent. Otherwise, elections will never end for
losers will always cry fraud and terrorism.[13]
The allegations of massive substitution of voters, multiple voting, and other
electoral anomalies should be resolved in a proper election protest [14] in the absence of
any of the three instances justifying a declaration of failure of election. In an election
protest, the election is not set aside, and there is only a revision or recount of the
ballots cast to determine the real winner.[15]
The nullification of elections or declaration of failure of elections is an

extraordinary remedy.[16] The party who seeks the nullification of an election has the
burden of proving entitlement to this remedy. It is not enough that a verified petition is
filed. The allegations in the petition must make out a prima facie case for the
declaration of failure of election, and convincing evidence must substantiate the
allegations.[17]
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 only of
affidavits. Mere affidavits are insufficient,[18]more so in this case since the affidavits
were all executed by Pasandalans own poll watchers. Factual findings of the
Comelec are binding on this Court.[19] Accordingly, the following findings of the
Comelec in the instant case must be respected:
xxx There was an allegation in the amended petition that while voting was taking
place in Sultan Gunting Elementary School, gunshots were heard causing the voters
to scamper for safety and leave the polling center without having cast their
votes. However, other than his bare allegation and the pre-typed affidavits of his
watchers, petitioner did not present substantial and convincing evidence to support his
claim. On the other hand, 1 Lt. Frederick Galang Pa of the 29th Infantry Battalion
assigned in Lumbayanague categorically declared in his affidavit that despite the
gunshots which were heard at around 2:35 PM when the polls were about to close,
the voting continued normally. This statement was bolstered by the narrative report of
Urangutan Mamailao, Election Officer of Lumbayanague, on the conduct of the
election in said municipality. The report was spontaneously prepared when the
incident happened. Taken in the light of the presumption of regularity in the
performance of official functions, these two affidavits carry great weight. Third, the
authenticity and integrity of the election returns are left undisturbed throughout the
preparation, transmission, custody and canvass thereof. There was no allegation,
much less proof that the sanctity of the election returns was defiled.
xxx
A thorough examination of the affidavits reveals that they suffer from both extrinsic and
intrinsic invalidity. The form and the contents of the affidavits were pre-typed, and all
the affiants had to do was to fill-up the blank spaces for their names and precinct
assignments. This clearly shows that some other person prepared the affidavits and it
is doubtful whether the affiants understood the contents thereof before they signed
them.
Also worth noting is the fact that the contents of the affidavits are identical. It is highly
questionable why different persons have exactly the same observation of different
incidents. Even persons confronted with the same occurrence would have different
observations of the same incident because human perception is essentially affected by
several factors like the senses, mental condition, personal disposition, environment,
etc.
Moreover, the affidavits contain inconsistent statements and incredible allegations
which bolster the conclusion that they were tailored to suit the needs of the
petitioner. For example, the joint-affidavit of Badjomura Calauto and Macaruog
Ampuan states that they were in Barangay Cabasaran during the May 14 election
when they saw the men of respondent fill-up the ballots in Precinct Nos. 29A-30A
of Barangay Lamin. The venue of voting for Barangay Cabasaran was Sultan Gunting
Central Elementary School while that of Barangay Lamin was Lamin Primary
School. How they were able to witness said incident when they were miles away from
where it happened is mystifying. Besides, this is not the proper forum to challenge
illegal voters. Even at the precinct level, petitioners watchers are empowered to
question any irregularity which they think may have been committed by any person or
to challenge the capacity of any person offering to vote. Failing to avail himself of this
remedy, petitioner cannot now pass the burden to innocent voters by calling for the
annulment of the results of a validly held election.[20]
Pasandalan bewails the Comelecs dismissal of his petition without first
conducting a technical examination of the questioned precincts. Pasandalan claims
that had the Comelec made a technical examination of the questioned precincts, the
Comelec would have discovered massive substitution of voters, terrorism, violence,
threats, coercion, intimidation and other electoral frauds, resulting in a failure of
election. Pasandalan insists that a technical examination in this case would have been
proper as in Typoco, Jr. v. Commission on Elections,[21] which is also a case of failure
of election.
The Comelec 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 Comelec to conduct a technical examination of the questioned

returns. Typoco filed a Motion to Admit Evidence to prove that a substantial number of
election returns were manufactured. Typoco claimed that the returns were prepared
by only one person based on the report of Francisco S. Cruz, a licensed examiner of
questioned documents, who examined copies of the election returns of LakasNUCD. 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. Commission on Elections, [22] we ruled that the Comelec 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. In Banaga, Jr. v.
Commission on Elections,[23]we reiterated this doctrine, thus Finally, petitioner claims that public respondent gravely abused its discretion when it
dismissed his petition motu propio. However, the fact that a verified petition has been
filed does not mean that a hearing on the case should first be held before Comelec
can act on it. The petition to declare a failure of election and/or to annul election
results must show on its face that the conditions necessary to declare a failure to elect
are present. In their absence, the petition must be denied outright. Public respondent
had no recourse but to dismiss the petition. Nor may petitioner now complain of denial
of due process, on this score, for his failure to properly file an election protest. The
Comelec can only rule on what was filed before it. It committed no grave abuse of
discretion in dismissing his petition to declare failure of elections and/or for annulment
of elections for being groundless, hence without merit.
Clearly, the fact that a verified petition is filed with the Comelec does not
necessarily mean that a technical examination or a hearing on the case should be
conducted first before the Comelec can act on the petition. There is no grave abuse of
discretion if the Comelec 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 Comelec 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,[24] was illegal, irregular, and void.[25] 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.[26]
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 is an
example of such a case.
In Basher, after a series of failed elections in Barangay Maidan, Municipality of
Tugaya, Lanao del Sur during the 1997 barangay elections, the election was reset to
August 30, 1997. Due to the prevailing tension in the locality, the voting started only at
around 9 p.m. and lasted until the early morning of the following day. Basher filed a
petition for the nullification of election. The Comelec ruled against a failure of election
because actual voting had taken place. However, we overturned the Comelec ruling
because the election was unauthorized and invalid. The electorate was not given
sufficient notice that the election would push through after 9 p.m. of the same
day. Moreover, the voting did not comply with the procedure laid down by law and by
Comelec rules as to the time and place of voting. Thus, we held that the election
was illegal, irregular and void. Consequently, we annulled the proclamation of the
winning candidate and ordered a special election.
Basher does not apply to this case. Unlike in Basher, the election in this case
proceeded as scheduled, in accordance with law and Comelec 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.[27] If the will of the people is determinable, the same must be
respected as much as possible.[28] In this case, the will of the electorate is readily
discernible. Pasandalan should have filed an election protest to substantiate his
allegations of electoral anomalies, not a petition to declare a failure of election.
WHEREFORE, the instant petition is DISMISSED. The assailed Resolution of
public respondent Comelec is AFFIRMED. Costs against petitioner.
SO ORDERED.
Bellosillo, (Acting C.J.), Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, and Corona,
JJ., concur.
Davide, Jr., C.J., on leave.
Sec. 4. Postponement; Failure of Election and Special Elections. - The

postponement, declaration of failure of election and the calling of special elections as
provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the
Commission sitting en banc by a majority vote of its members. The causes or the
declaration of a failure of election may occur before or after the casting of votes on the
day of the election.
In her Answer dated May 24, 2004, respondent Dagalangit denied petitioners
allegations of the existence of fake ballots in the specified precincts. She averred that
during the May 12, 2004 special election, all the 39 precincts of Lumba-Bayabao
functioned in an orderly and peaceful manner; that the ballots have been properly
appreciated, counted and entered in the election returns duly accomplished by the
Board of Election Inspectors under the close scrutiny of the candidates watchers; and
that the use of fake ballots is not a valid ground for nullifying the elections. She then
prayed that SPA No. 04-348 be dismissed.1avvphil.net
Republic of the Philippines

SUPREME COURT
Manila
During the May 27, 2004 hearing, petitioner did not appear before the COMELEC En
Banc. Instead, he filed an "Urgent Ex-Parte Motion/Manifestation"5 stating that he was
already proclaimed as the winning candidate on May 20, 2004, thereby rendering his
petition "moot and academic;" and that he "has lost interest in the prosecution of the
same." He prayed that his petition be considered withdrawn.
[5]
EN BANC
G.R. No. 164225
April 19, 2006
JUHARY A. GALO, Petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS
OF LUMBA-BAYABAO, LANAO DEL SUR, and MINDA
DAGALANGIT, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
Before us for resolution is the Petition1 for Certiorari,2 assailing the Resolution3 dated
July 2, 2004 of the Commission on Elections
(COMELEC) En Banc in SPA No. 04-348.
Juhary A. Galo, petitioner, and Minda P. Dagalangit, private respondent, were among
the five candidates for mayor in the Municipality of Lumba-Bayabao, Lanao del Sur in
the May 10, 2004 national and local elections.
On May 10, 2004, however, there was a failure of election in Lumba-Bayabao due to
serious disagreements among the various local candidates involving the clustering of
precincts, the distribution of election paraphernalia, and the appointment of the
members of the various Boards of Election Inspectors. As a consequence, the
COMELEC scheduled and held a special election on May 12, 2004.
On May 19, 2004, petitioner Galo filed with the COMELEC En Banc a petition4 to
declare a failure of election and to annul the results of the May 12, 2004 special
election involving six precincts located in six Barangays of Lumba-Bayabao, namely:
Precinct Nos. 1A (Barangay Maribu), 34A (Barangay Sunggod), 29B (Barangay
Rumayas), 22A (Barangay Lubo Basara), 31A (Barangay Salaman), and 36A
(Barangay Tamlang). Galos petition, docketed as SPA No. 04-348, is based on his
claim that there were "serious and massive irregularities committed by the supporters
of Dagalangit, in conspiracy with members of the Board of Election Inspectors."
Specifically, petitioner alleged that respondent Dagalangits supporters succeeded in
placing fake ballots inside a ballot box in Precinct No. 1A (Barangay Maribo); that in
Precinct No. 34A (Barangay Sunggod), the voting was irregular because the election
inspectors hid a ballot box allegedly to protect it from being forcibly taken; that during
the counting of votes, fake ballots were found in the ballot boxes in Precinct Nos. 22A
(Barangay Lubo Basara), 29B (Barangay Rumayas), 31A (Barangay Salaman), 34A
(Barangay Sunggod), and 36A (Barangay Tamlang); that the election inspectors in the
said precincts refused to enter in the minutes their valid objections; that all the election
returns accomplished based on the fake ballots do not reflect the true will of the
electorate; and that the said irregularities justify the annulment of the election held.
Petitioner thus prayed that the COMELEC issue a temporary restraining order (TRO)
directing the Board of Canvassers to desist from canvassing the election returns from
the said precincts. Petitioner further prayed that after due hearing, the results of the
election be annulled; and that an immediate investigation of the anomalies committed
during the election be conducted.
On May 21, 2004, the COMELEC En Banc issued a TRO directing the Municipal
Board of Canvassers of Lumba-Bayabao to SUSPEND its proceedings, particularly the
proclamation of the winning candidates, until further orders.
Thereafter, pursuant to the order of the COMELEC En Banc, the contending parties
filed their respective memoranda.
On July 2, 2004, the COMELEC En Banc issued the assailed Resolution (1)
dismissing the petition for lack of merit; (2) annulling petitioners proclamation on May
20, 1994 for having been "made surreptitiously and in contravention of the May 21,
2004 Order of the Commission;" and (3) ordering the Municipal Board of Canvassers
of Lumba-Bayabao "to immediately convene, complete the canvass, and proclaim the
winning candidates." The COMELEC En Banc held that pursuant to the Omnibus
Election Code, the alleged use of fake ballots in the questioned precincts is not one of
the grounds for nullifying the election results. In fact, all the 39 precincts of LumbaBayabao functioned during the May 12, 2004 special elections.
On July 4, 2004, the Municipal Board of Canvassers of Lumba-Bayabao completed its
canvass proceedings and proclaimed respondent Dagalangit as the winning candidate
for mayor of that municipality.6
Petitioner now comes to this Court through the instant Petition for Certiorari alleging
that the COMELEC, in issuing the challenged Resolution, acted with grave abuse of
discretion amounting to lack or excess of jurisdiction.
Respondents, in their respective Comments, vehemently opposed the petition and
prayed that the same be dismissed for being utterly unmeritorious.
The petition is bereft of merit.
We cannot sustain petitioners contention that the COMELEC En Banc gravely abused
its discretion in dismissing his petition for a declaration of a failure of elections and for
the annulment of the election results. Section 6 of the Omnibus Election Code
prescribes the conditions for such a declaration, thus:
Section 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
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 the verified petition by any
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. (Underscoring supplied)
In Tan v. COMELEC,7 we held that the above provisions lay down three instances
where a failure of election may be declared, namely: (1) 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; (2) the election in any polling place has
been suspended before the hour fixed by law for the closing of the voting on account
of any of such causes; or (3) after the voting and during the preparation, transmission,
custody or canvass of the election returns, the election results in a failure to elect on
account of any of said aforementioned causes. In all instances, there must have
been a failure to elect. This is obvious in the first two scenarios, where the election
was not held and where the election was suspended. As to the third scenario, the
circumstances attending the preparation, transmission, custody or canvass of
the election returns cause a failure to elect. The term failure to elect means
"nobody emerges as a winner."8
The established rule is that the nature of an action and the jurisdiction of the tribunal
are determined by the law and the allegations in the petition regardless of whether or
not the petitioner is entitled to the relief sought.9 Here, it is not disputed that all the 39
precincts in Lumba-Bayabao functioned in the May 12, 2004 special elections. And as
correctly observed by respondent COMELEC En Banc, petitioner himself failed to
allege in his petition that no election was conducted; and that the use of fake ballots is
not a ground to declare a failure of elections.
In Mitmug v. Commission on Elections,10 we further held that before the COMELEC
can act on a verified petition seeking to declare a failure of election, two 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 a failure to
elect; and, second, the votes cast would affect the result of the election. In the case at
bar, both conditions are not present.
PRESBITERO J. VELASCO, JR.

Associate Justice
C E RTI F I CATI O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice
EN BANC
Petitioner himself admits in his petition that during the special election, voting took
place in the questioned precincts. He also failed to show that the votes cast would
affect the results of the election.
Petitioner also questions the COMELECs nullification of his proclamation on May 20,
2004 by the Municipal Board of Canvassers. We sustain the COMELEC En Bancs
action. As shown by the records, petitioner was proclaimed as mayor on the basis of
the results of "the elections held on May 10, 2004."11 As stated earlier, no election was
held on that day.
In fine, the COMELEC, in issuing the assailed Resolution, did not act with grave abuse
of discretion.
[G.R. No. 150469. July 3, 2002]
MAYOR JUN RASCAL CAWASA, COUNCILORS MAASIRAL DAMPA, H. ACKIL

MAMANTUC, MOMOLAWAN MACALI, ANDAR TALI, ALLAN
SANAYON,
and
AMIN
SANGARAN, petitioners,
vs. THE
COMMISSION
ON
ELECTIONS
and
ABDULMALIK
M.
MANAMPARAN, respondents.
DECISION
WHEREFORE, the petition is DISMISSED. Costs against petitioner.

CARPIO, J.:
SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
(On leave)
REYNATO S. PUNO
Associate Justice
CONSUELO YNARESSANTIAGO
Asscociate Justice
MA. ALICIA AUSTRIAMARTINEZ

Associate Justice
CONCHITA CARPIO
MORALES
Asscociate Justice
ADOLFO S. AZCUNA
Associate Justice
MINITA V. CHICO-NAZARIO
Asscociate Justice
LEONARDO A. QUISUMBING
Associate Justice
ANTONIO T. CARPIO
Asscociate Justice
RENATO C. CORONA
Associate Justice
ROMEO J. CALLEJO, SR.

Asscociate Justice
DANTE O. TINGA
Associate Justice
CANCIO C. GARCIA
Asscociate Justice
The Case
Before us is a Petition for Certiorari with prayer for the issuance of a writ of
preliminary injunction and a temporary restraining order under Rule 64 of the 1997
Rules of Civil Procedure[1] assailing the Resolution of the Commission on Elections
(Comelec for brevity) en banc[2] in SPC No. 01-276 dated October 24, 2001, the
dispositive portion of which reads:
WHEREFORE, premises considered, the instant petition is hereby GRANTED. The
results of special elections held on 30 May 2001 covering Precincts Nos. 2A, 2A1/2A2
in Barangay Bangko, Precinct No. 3A in Barangay Cabasaran and clustered Precinct
No. 10A/10A1 in Barangay Liangan are hereby ANNULLED.
Accordingly, the proclamation of all winning candidates insofar as the results in the
four (4) contested precincts affect the standing of candidates is hereby SET ASIDE
until the choice of the people is finally determined through another special election to
be authorized, conducted and supervised by this Commission as soon as possible
unless restrained.
Finally, the Law Department is hereby directed to investigate the election irregularities
that transpired in the Municipality of Nunungan, Lanao del Norte involving the Office of
the Election Officer and thereafter, file election offense case/s should there be finding
of probable cause and other appropriate cases if warranted under the circumstances.
SO ORDERED.[3]
The Facts
During the May 14, 2001 elections, petitioner Jun Rascal Cawasa (petitioner
Cawasa for brevity) and private respondent Adbulmalik M. Manamparan (private
respondent Manamparan for brevity) were among the candidates for mayor
in the Municipality of Nunungan, Lanao del Norte (Nunungan for brevity). Out of the
forty (40) precincts in Nunungan, only thirty-six (36) functioned, as there was a failure
of election in the remaining four (4) precincts. The following were the precincts,
barangays, polling places and number of registered voters where there was a failure of
election:
30,
PRECINCT NO. BARANGAY
POLLING PLACE
REG. VOTERS
2A
Bangko
Bangko Prim School
2A1/2A2
Bangko
-do-
3A
Cabasaran
Cabasaran Prim. Sch.
10A/10A1
Liangan
Liangan Prim. Sch.

Total
200
254
236
845
VII. Memorandum of Commissioner Mehol K. Sadain dated 19 May 2001.

MUNICIPALITY/PROVINCE
Nunu(n)gan, Lanao del Norte
Barangays:
1. Bangco
2. Cabasaran
3. Liangan
REASONS : disagreement of venue of election, tension of

BEIs, forcible taking of the ballot boxes and other election
paraphernalia.
Scheduled date:
Private Respondent
Manamparan
1,197
Petitioner
Cawasa
1,470
570
1,283
1,767
187
Margin . . .
. .
297
155
After canvassing the election returns from the 36 precincts, the Municipal Board of
Canvassers of Nunungan deferred the proclamation of all winning candidates due to
the failure of the said 4 precincts to function. Special elections were set on May 30,
2001 considering that the number of registered voters in the remaining four precincts
would affect the election results. The Comelec promulgated Resolution No. 4360 on
May 21, 2001 authorizing the conduct of special elections in the affected areas,
including barangays Bangko, Cabasaran and Liangan in Nunungan, the pertinent
portion of which states:
REGION
Region XII
Sub-Total of Votes
Sub-Total of votes
Grand
Obtained May 14, 2001
Obtained May
Total
Regular Elections
2001 Special Elections
As shown above, during the May 14, 2001 regular elections, the lead of
petitioner Cawasa was eighty six (86). After the May 30, 2001 special elections,
private respondent Manamparan overcame the margin with a lead of 297 votes.
Petitioner Cawasa was proclaimed mayor of Nunungan and his co-petitioners
Maasiral Dampa, H. Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon
and Amin Sangaran were also proclaimed as councilors of Nunungan.
On June 4, 2001, private respondent Manamparan filed an appeal and petition
to annul the proclamation of petitioner Cawasa docketed as SPC No. 01-252. The
appeal/petition was dismissed by the Comelec Second Division on September 26,
2001.
In the meantime, on June 8, 2001, private respondent Manamparan filed a
petition for Annulment of Election Results during the May 30, 2001 Special Elections
in Precincts No. 2A, 2A1/2A2, 3A, and 10A/10A1 of Nunungan, Lanao Del Norte, and
Annulment of Canvass and Proclamation with Prayer for Issuance of Temporary
Restraining Order and/or Writ of Preliminary Injunction docketed as SPC Case No.
01-276. Impleaded as respondents were petitioner Cawasa and the Municipal Board of
Canvassers composed of Mario Allan Ballesta,[5] Nedalyn S. Sebial[6] and Iluminada O.
Pegalan.[7]
As mentioned at the outset, on October 24, 2001, the Comelec en
banc promulgated a resolution annulling the results of the special elections of the 4
precincts (Precinct Nos. 2A, 2A1/2A2, 3A, 10A/10A1) held on May 30, 2001
conducted in the municipalities of Sultan Naga Dimaporo and Sapad. The Com
elec en banc also annulled the proclamation of all winning candidates insofar as the
results in the 4 contested precincts affect the standing of candidates.
May 30, 2001

The Comelec Ruling
xxx
In view of the foregoing the Commission RESOLVED, as it hereby RESOLVED, as
follows:
1. To schedule the special elections in the foregoing areas on
May 26 and 30, 2001 as herein specified;
xxx
Let the Executive Director, Deputy Executive Directors for Operations and all the
working Committees implement this resolution.
SO ORDERED.[4]
As scheduled, the special elections covering the 4 precincts were conducted
on May 30, 2001. The special elections for Precincts Nos. 2A, 2A1/2A2 of Barangay
Bangko were conducted in the Municipality of Sultan Naga Dimaporo, Lanao del
Norte. The special elections for Precinct No. 3A of Barangay Cabasara and Precinct
Nos. 10A/10A1 of Barangay Liangan were conducted in the Municipality of Sapad,
Lanao del Norte.
The Municipal Board of Canvassers of Nunungan canvassed the election
returns of the 4 precincts on May 31, 2001. After the canvassing of the election
returns, the Municipal Board of Canvassers proclaimed the winning candidates on the
basis of the earlier 36 election returns of the May 14, 2001 regular elections and the 4
election returns of the 4 precincts subject of the special elections.
The May 14, 2001 regular elections and the May 30, 2001 special elections
show the following results with respect to the position of mayor:
In granting the petition, the Comelec held that the special elections in the 4
contested precincts were not genuinely held and resulted in failure to elect on account
of fraud. The Comelecs ruling is summarized as follows:
First. The Comelec clarified that the Comelec en banc can take cognizance of
the petition for annulment of election results in accordance with Section 4 of RA
7166[8], otherwise known as the Synchronized Elections Law of 1991. It explained
that while the proclamation of a candidate has the effect of terminating preproclamation issues, a proclamation that is a result of an illegal act is void and cannot
be ratified by such proclamation and subsequent assumption of office. The Comelec
declared that there is no forum-shopping considering that SPC 01-252 pending before
the Second Division of the Comelec is a pre-proclamation controversy, [9] while SPC 01276 pending before the Comelec en banc is a case for annulment of election results.
Second. The Comelec found that the special elections were not held in the
designated polling places in Nunungan but were transferred to the municipalities of
Sapad and Sultan Naga Dimaporo without any authority from the Comelec. According
to the Comelec, the Election Officer, who happened to be the chairman of the
Municipal Board of Canvassers, caused the transfer of the polling places without
asking permission from the Comelec. The transfer was likewise in violation of the due
process requirements found in Section 153 of the Omnibus Election Code. Moreover, it
ruled that the unauthorized transfer of a polling place is also punishable as an election
offense under Section 261(z) (17) of the Same Code. We quote the pertinent portion
of the Comelec ruling thus:
The transfer of polling places cannot be done without due process. This is the explicit
rule of Section 153 of the Omnibus Election Code, x x x:
xxx
xxx
xxx
In the instant case, the Election Officer, who happened to be the Chairman of the
respondent Board, also caused the transfer of the polling places without asking the
permission of this Commission and in violation of the due process rule, thereby,
making the afore-quoted Section 153 inutile.
Considering these unwarranted acts of the official of this Commission, the sanctity of
the special elections therefore is suspect. Nothing in the records could show that
notice was given to the political candidates and to the registered voters affected
by the special elections of the said transfer of polling places. Who therefore
voted on the assailed special elections given these circumstances? This issue
has never been squarely addressed by the respondents.
We take judicial notice of the distance of the venues of voting which are more or
less 25 kilometers away from Nunungan, far from being accessible to the voters
given the time and material constraints. The panorama of what is supposed to
be a free and honest exercise of democracy is indeed rendered myopic by fraud
perpetrated by no other than the COMELEC officials concerned. [10]
Third. The Comelec found that the Municipal Board of Canvassers, headed by
Mario Allan Ballesta, preposterously feigned ignorance of the fact that during the said
special elections, members of the Philippine Army 26 th Infantry Battalion served as
election inspectors without authority from the Comelec.
Hence, the instant petition.
The Issues
Petitioners argue that the COMELEC en banc Resolution was issued without
jurisdiction and/or with grave abuse of discretion amounting to lack of jurisdiction for
the following reasons:
"1. The proclamation of the six (6) petitioners Maasiral Dampa, H.
Ackil Mamantuc, Momolawan Macali, Andar Tali, Allan Sanayon,
and Amin Sangaran were annulled and set aside in violation of due
process of law. They were not impleaded as respondents in the
petition to annul the election. They were not notified of the
proceedings. x x x.
2. The transfer of the venue of the special elections at Sultan Naga
Dimaporo and Sapad and the appointment of military personnel as
members of the Board of election Inspectors of the four (4)
precincts were agreed upon by the private respondent and the
municipal candidates and their respective political parties.
3. The election officer in the exercise of his discretion has authority to
transfer the venue of the special elections in view of the
agreement of the political parties and municipal candidates on the
transfer of the venue of the special elections. x x x.
4. There is substantial compliance with the provisions of Sec. 153 of
the Omnibus Election Code. The political parties and municipal
candidates of the municipality Nunungan were notified and in fact
agreed to the transfer of venue of the special elections.
5. The COMELEC en banc promulgated the October 24, 2001
resolution without requiring its election officer of Nunungan, the
provincial election supervisor of Lanao del Norte, and Regional
Election Director of Region XII to explain why the special elections
of the four (4) precincts were transferred to the municipalities of
Sultan Naga Dimaporo and Sapad. The petitioner Mayor Jun
Rascal Cawasa prayed that the case be set for trial and hearing in
order that the election officer of Nunungan be required to testify
and explain the circumstances of the special elections. The
COMELEC en banc did not act on the motion. It promulgated the
resolution of October 24, 2001 without investigating the
circumstances why the election officer transferred the venue of the
special elections to the municipalities of Sultan Naga Dimaporo
and Sapad. No hearing was conducted by the COMELEC en
banc.[11]
Simply put, the issues raised boil down to whether or not : (1) the transfer of
the polling places to the adjacent municipalities is legal; (2) the appointment of military
personnel as members of the board of election inspectors is legal; and (3) the
petitioners were accorded due process prior to the promulgation of the assailed
resolution in SPC No. 01-276.
The Courts Ruling
The petition is bereft of merit.

First Issue: Legality of the Transfer of Polling Places and Appointment
of Military Personnel as Members of the Board of Election Inspectors
There is no dispute that the venue of the special elections was transferred to
the adjacent municipalities of Sultan Naga Dimaporo and Sapad in lieu of the regular
polling places located in barangays Bangko, Cabasaran and Liangan. There is
likewise no dispute that military personnel were appointed as members of the Board of
Election Inspectors (BEI for brevity) in the 4 precincts. Petitioners and private
respondent Manamparan agree that the 4 precincts covered by the special elections
with a total of 845 registered voters will affect the result of the elections.
Petitioners insist on the validity of the conduct of the special elections
claiming that the political parties and the municipal candidates were notified and in
fact agreed on the transfer of venue and the appointment of military personnel as
members of the BEI. They contend that there is substantial compliance with the
provisions of Section 153 of the Omnibus Election Code considering that the election
officer as the representative of the Comelec reported the matter to the Provincial
Election Supervisor of Lanao del Norte and the transfer was not disapproved by the
Comelec. Petitioners claim that an election officer has authority to transfer the polling
places even four days before the scheduled election citing Balindong
vs. Comelec[12] and Alonto vs. Comelec.[13]
Petitioners fail to persuade. Sections 152, 153 and 154 of the Omnibus
Election Code shed light on this matter, to wit:
SEC. 152. Polling Place. A polling place is the building or place where the board of
election inspectors conducts its proceedings and where the voters shall cast their
votes.
SEC. 153. Designation of polling places. The location of polling places
designated in the preceding regular election shall continue with such changes as the
Commission may find necessary, after notice to registered political parties and
candidates in the political unit affected, if any, and hearing: provided, That no location
shall be changed within forty-five days before a regular election and thirty days before
a special election or a referendum or plebiscite, except in case it is destroyed or it
cannot be used.
SEC. 154. Requirements for polling places. Each polling place shall be, as far as
practicable, a ground floor and shall be of sufficient size to admit and comfortably
accommodate forty voters at one time outside the guard rail for the board of election
inspectors. The polling place shall be located within the territory of the precinct as
centrally as possible with respect to the residence of the voters therein and whenever
possible, such location shall be along a public road. No designation of polling
places shall be changed except upon written petition of the majority of the
voters of the precinct or agreement of all the political parties or by resolution of
the Commission upon prior notice and hearing.
A public having the requirements prescribed in the preceding paragraph shall be
preferred as polling place.[14]
The transfer was made not only in blatant disregard of Comelec Resolution No.
4360 issued on May 21, 2001 specifying the polling places but also Sections 153 and
154 of the Election Code. As clearly provided by the law, the location of polling places
shall be the same as that of the preceding regular election. However, changes may be
initiated by written petition of the majority of the voters of the precinct or agreement of
all the political parties or by resolution of the Comelec after notice and hearing. But
ultimately, it is the Comelec which determines whether a change is necessary after
notice and hearing.
The Comelec has unequivocally stated that nothing in the records showed that
notice was given to the political candidates and registered voters affected by the
transfer. Private respondent Manamparan has categorically denied petitioners claim
that all the political parties and municipal candidates agreed to the transfer of
venue. The Court discerns no substantiation of petitioners claim regarding the
agreement to transfer. There is then no cogent reason for us to disturb the findings of
the Comelec on this matter. Indeed, the factual findings of the Comelec supported by
substantial evidence shall be final and non-reviewable. [15] Thus, it has been held that
findings of fact of the Comelec based on its own assessments and duly supported by
evidence, are conclusive upon this Court, more so, in the absence of a substantiated
attack on the validity of the same. [16] Moreover, there is no question that the transfer of
venue was made within the prohibited period of thirty days before the special election.
Reliance on Balindong vs. Comelec[17] and Alonto vs. Comelec[18] is
misplaced. Alonto involved an entirely different factual scenario from the instant
case. In said case, the Court upheld the validity of the transfer of the counting and
tallying of the votes after the closing of the pollsfrom the precincts to the PC camps.
The Court held that the transfer was dictated by necessity and authorized by the
Comelec directly or by its provincial representative. The Court explained that while it
is highly desirable that the authority for the transfer of the counting should be directly
authorized by the Comelec itself, the latters denial of the petitioners motion for
reconsideration where this legal point was advanced was tantamount to a validation of
the authority issued by its provincial representatives.
On the other hand, the Court in Balindong[19] held that the mere fact that the
transfer of polling place was not made in accordance with law, particularly Secs. 152154 of the Omnibus Election Code, does not warrant a declaration of failure of election
and the annulment of the proclamation of the winning candidate, because the number
of uncast votes will not affect the result of the election. In the case at bar, there is no
dispute that the election returns from the 45 precincts will affect the results of the
elections.
Next, the appointment of military personnel as members of the BEI is another
grave electoral irregularity that attended the special elections held on May 30, 2001.
There was absolutely no legal basis for the appointment of military personnel as
members of the BEI. Verily, the appointments were devoid of any justification other
than the bare assertion, again, that the political parties and municipal candidates
agreed on the said arrangement. The pertinent provisions of the Omnibus Election
Code regarding the composition, appointments and substitution of the members of the
BEI are quoted as follows:
SEC. 164. Composition and appointments of board of election inspectors. - At
least thirty days before the date when the voters list is to be prepared in accordance
with this Code, in the case of a regular election or fifteen days before a special
election, the Commission shall, directly or through its duly authorized
representatives, constitute a board of election inspectors for each precinct to be
composed of a chairman and a poll clerk who must be public school teachers,
priority to be given to civil service eligibles, and two members, each
representing the two accredited political parties. The appointment shall state the
precinct to which they are assigned and the date of the appointment.
SEC. 165. Oath of the members of the board of election inspectors. - The
members of the board of election inspectors, whether permanent, substitute or
temporary, shall before assuming their office, take and sign an oath upon forms
prepared by the Commission, before an officer authorized to administer oaths or, in his
absence, before any other member of the board of election inspectors present, or in
case no one is present, they shall take it before any voter. The oaths shall be sent
immediately to the city or municipal treasurer. (Sec. 157, 1971 EC)
SEC. 166. Qualification of members of the board of election inspectors. - No
person shall be appointed chairman, member or substitute member of the board of
election inspectors unless he is of good moral character and irreproachable reputation,
a registered voter of the city or municipality, has never been convicted of any election
offense or of any other crime punishable by more than six months of imprisonment, or
if he has pending against him an information for any election offense. He must be able
to speak and write English or the local dialect. (Sec. 114, 1978 EC)
xxx
SEC. 170. Relief and substitution of members of the board of election
inspectors. - Public school teachers who are members of the board of election
inspectors shall not be relieved nor disqualified from acting as such members, except
for cause and after due hearing.
xxx
Section 13 of Republic Act No. 6646[20] modified Section 164 of the Omnibus
Election Code. Said section reads:
SEC. 13. Board of Election Inspectors. The board of election inspectors to be
constituted by the Commission under Section 164 of Batas Pambansa Blg. 881 shall
be composed of a chairman and two (2) members, one of whom shall be designated
as poll clerk, all of whom shall be public school teachers, giving preference to those
with permanent appointments. In case there are not enough public school teachers,
teachers in private schools, employees in the civil service, or other citizens of known
probity and competence who are registered voters of the city or municipality may be
appointed for election duty.
Clearly, the BEI shall be composed of a chairman and two members, all of
whom are public school teachers. If there are not enough public school teachers,
teachers in private schools, employees in the civil service or other citizens of known
probity and competence may be appointed. It was highly irregular to replace the duly
constituted members of the BEI, who were public school teachers. Nothing in
petitioners pleadings would even suggest that the substitution was made for cause
and after hearing. The importance of the constitution of the BEI to the conduct of free,
honest and orderly elections cannot be overemphasized. The Court has held that, the
members of the board of election inspectors are the front line election officers. They
perform such duties and discharge such responsibilities that make them, in a real
sense, foot soldiers who see to it that elections are free, honest and orderly. They are
essential to the holding of elections.[21]
Second Issue: Denial of Due Process
Petitioners claim that there was a clear violation of due process of law
because a hearing was not conducted on the circumstances of the special election.
Petitioners further claim that the Comelec rendered the assailed resolution without
requiring its field officers, specifically, the election officer, provincial election supervisor
and the regional election director to explain the transfer of the polling places. Lastly,
petitioners point out that none of the eight (8) proclaimed members of the
Sangguniang Bayan[22] of Nunungan, Lanao del Norte and the proclaimed Vice Mayor
were notified and impleaded as respondents in the petition to annul the election
results citing Velayo vs. Commission on Elections.[23]
Section 4 of Republic Act No. 7166 or The Synchronized Elections Law of
1991 provides that the Comelec sitting en banc by a majority vote of its members may
decide, among others, the declaration of failure of election and the calling of special
elections as provided in Section 6 of the Omnibus Election Code. Said Section 6, in
turn, provides as follows:
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 the closing
of the voting, or after the voting and during the preparation and the transmission of the
A prayer to annul election results, as in the instant case, and a prayer to
declare failure of elections based on allegations of fraud, terrorism, violence or
analogous causes, are actually of the same nature and the Election Code
denominates them similarly.[24] The Comelec may exercise the power to annul election
results or declare a failure of election motu proprio[25] or upon a verified petition.[26] The
hearing of the case shall be summary in nature. [27] A formal trial-type hearing is not at
all times and in all instances essential to due process it is enough that the parties are
given a fair and reasonable opportunity to explain their respective sides of the
controversy and to present evidence on which a fair decision can be based. [28] In fine,
a trial is not at all indispensable to satisfy the demands of due process.
The petition was heard by the Comelec en banc on June 27, 2001. During the
said hearing, the Comelec directed the parties, as agreed upon, to submit their
respective memoranda within five (5) days from date and after which, the case shall be
submitted for resolution. Petitioners were duly heard through their pleadings, thus,
there is no denial of procedural due process to speak of. Moreover, contrary to the
claim of petitioners, the Municipal Board of Canvassers of Nunungan, including
Election Officer Ballesta, were summoned to the hearing held on June 27, 2001 and
furnished a copy of the petition.
The pre-conditions for declaring a failure of election are: (1) that no voting has
been held in any precinct or precincts because of force majeure, violence, terrorism,
fraud or other analogous causes and (2) that the votes not cast therein are sufficient to
affect the results of the elections. The concurrence of these two circumstances justifies
the calling of special elections.[29] Here, the Comelec found that the special elections
were vitiated by fraud due to the illegal transfer of the polling places and the
appointment of military personnel as members of the BEI. Inevitably, the Comelec
could not ascertain who voted during the special elections. The circumstances were
such that the entire electoral process was not worthy of faith and credit, hence, in
practical effect no election was held.[30]
WHEREFORE, finding no grave abuse of discretion amounting to lack or

excess of jurisdiction on the part of public respondent Commission on Elections, the
instant petition is hereby DISMISSED. The resolution of the Commission on
Elections en banc in SPC No. 01-276 dated October 24, 20001 is hereby AFFIRMED.
In Velayo vs. Commission of Elections,[31] the Court held that the non-inclusion
of a proclaimed winner as respondent in a pre-proclamation controversy and his lack
of notice of the proceedings in the Comelec which resulted in the cancellation of his
proclamation constitute clear denial of due process. In the Velayo case, the
proclaimed mayor and the members of the Municipal Board of Canvassers were not
impleaded in the pre-proclamation cases brought before the Comelec. However, in
this case, petitioner Cawasa and the members of the Municipal Board of Canvassers
were in fact impleaded, notified and even heard by the Comelec in SPC No. 01-276. At
this late stage, public interest in the speedy disposition of this case will only be further
derailed by the re-opening of the case for the benefit of petitioners-councilors who did
not advance any new and substantial matters in this petition warranting the declaration
that the special elections were valid and untainted by fraud.
[8]
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban,

Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, andCorona, JJ., concur.
Quisumbing, J., on leave.
Sec. 4. Postponement, Failure of Election and Special Elections. The
postponement, declaration of failure of election and the calling of special elections as
provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the
Commission sitting en banc by a majority of votes of its members. The causes for the
declaration of a failure of election may occur before or after the casting of votes or on
the day of the election.

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EN BANC

SUBJECT: Final Incident Report

Atty. Wynnie Asdala

1. 00A 111200H May 98, election held at Sultan Disimban Elementary

The facts are:

Petitioner ZAIPAL D. BENITO and private respondent IBRAHIM PAGAYAWAN

On the day of the election, voting started peacefully at the polling

After counting, these results emerged:

O, A CO, ISIB, 4ID

OF JURISDICTION IN NOT ANNULLING THE CERTIFICATE OF

Private respondent won over petitioner by forty-eight (48) votes.

NO. OF REGISTERED VOTERS

SEC. 6. Failure of Election.If, on account of force majeure, violence, terrorism,

Benito and private respondent Pagayawan were 2 of 8 candidates vying for

Whether there was a resumption of voting is essentially a question of fact.

[G.R. No. 134696. July 31, 2000]

The factual antecedents of this case are as follows:

TOMAS T. BANAGA, JR., petitioner, vs. COMMISSION ON ELECTIONS and

THE AUTHORITY RELIED UPON BY THE COMELEC AS BASIS FOR THE

Kalinggalang Calauag. The COMELEC dismissed the latter action on ground of

We have painstakingly examined the petition filed by petitioner Banaga before

In Mitmug vs. COMELEC,[12] petitioner instituted with the COMELEC an action

WHEREFORE, the instant petition is DISMISSED. The assailed

Republic Act 7166, Section 4. Postponement, Failure of Election and Special

BANAGA, JR. v. COMELEC

[G.R. No. 133495. September 3, 1998]

BENJAMIN U. BORJA, JR., petitioner vs. COMMISSION ON ELECTIONS and

protest is an ordinary governed by Rule 20 on ordinary actions, while a petition to

This contention will not bear analysis. Article X, 8 of the Constitution

Other commissioners went on record against perpetually disqualifying

Reference is made to Commissioner Bernas comment on Art. VI, 7, which

BORJA, JR. VS. COMELEC

[G. R. No. 150312. July 18, 2002]

BAGO P. PASANDALAN, petitioner, vs. COMMISSION ON ELECTIONS and BAI

Before us is a petition for review on certiorari of the Resolution[1] of the

Under Republic Act No. 7166, otherwise known as The Synchronized

Hence, this petition.

The Comelecs Ruling

The Courts Ruling

Based on the foregoing provision, three instances justify a declaration of failure

The nullification of elections or declaration of failure of elections is an

that compelled the Comelec to conduct a technical examination of the questioned

Sec. 4. Postponement; Failure of Election and Special Elections. - The

Republic of the Philippines

April 19, 2006

JUHARY A. GALO, Petitioner,

PRESBITERO J. VELASCO, JR.

[G.R. No. 150469. July 3, 2002]

MAYOR JUN RASCAL CAWASA, COUNCILORS MAASIRAL DAMPA, H. ACKIL

WHEREFORE, the petition is DISMISSED. Costs against petitioner.

MA. ALICIA AUSTRIAMARTINEZ

ROMEO J. CALLEJO, SR.

Bangko Prim School

Cabasaran Prim. Sch.

Liangan Prim. Sch.

VII. Memorandum of Commissioner Mehol K. Sadain dated 19 May 2001.

REASONS : disagreement of venue of election, tension of

May 30, 2001

The Courts Ruling

The petition is bereft of merit.

Second Issue: Denial of Due Process

WHEREFORE, finding no grave abuse of discretion amounting to lack or

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban,

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