ELEC SET 2

1. Velasco v. COMELEC Resolution dated July 6, 2007 of the Second Division of the Commission on Elections
(COMELEC) and [2] the Resolution dated October 15, 2007 of the COMELEC en banc,
NARDO M. VELASCO, in SPA Case No. 07-148 entitled Mozart P. Panlaqui v. Nardo M. Velasco. The assailed
resolutions denied due course to the Certificate of Candidacy (COC) Velasco had filed
Petitioner, for the position of Mayor of the Municipality of Sasmuan, Pampanga.

- versus -
THE ANTECEDENTS
COMMISSION ON ELECTIONS and MOZART P. PANLAQUI,

Respondents.
Velasco was born in San Antonio, Sasmuan, Pampanga on June 22, 1952 to Arsenio
G.R. No. 180051 Velasco and Lucia Mangalindan. He married Evelyn D. Castillo on June 29, 1975 at the
Roman Catholic Church of Sasmuan. In 1983, he moved to and worked in the United
Present: States of America where he subsequently became a citizen.

PUNO, C.J., Sometime in 2006, Velasco applied for dual citizenship under Republic Act No. 9225,
QUISUMBING, otherwise known as the Citizenship Retention and Re-Acquisition Act of 2003. His
YNARES-SANTIAGO, application was approved on July 31, 2006. On the same day, he took his oath of
CARPIO, allegiance to the Republic of the Philippines before the Philippine Consulate General
AUSTRIA-MARTINEZ, in San Francisco. He returned to the Philippines on September 14, 2006 and has not
CORONA,* left since, except for a 3-day Hongkong trip from September 26, 2006 to September 29,
CARPIO MORALES, 2009.
AZCUNA,
TINGA, Soon thereafter or on October 13, 2006, Velasco applied for registration as a voter of
CHICO-NAZARIO, Sasmuan, Pampanga. The Election Registration Board (ERB) denied his application.
VELASCO, JR., Thereupon, Velasco filed a petition for the inclusion of his name in the list of voters with
NACHURA, the Municipal Trial Court of Sasmuan (MTC). The MTC, finding no evidence of Velascos
REYES, change of domicile, granted Velascos petition on February 9, 2007; it reversed the
LEONARDO-DE CASTRO, and ERBs decision and ordered Velascos inclusion in the List of Voters of Sasmuan.
BRION, JJ.
On March 1, 2007, Branch 52 of the Regional Trial Court of Guagua, Pampanga (RTC)
Promulgated: reversed and set aside, on appeal, the MTC decision. The RTC reasoned out that
Velasco lost his domicile of origin [Sasmuan, Pampanga] when he became a US
citizen; under Philippine immigration laws, he could only stay in the Philippines as a
December 24, 2008 visitor or as a resident alien. Velasco, according to the RTC, only regained or
reacquired his Philippine residency on July 31, 2006 when he reacquired his Filipino
x ----------------------------------------------------------------------------------------------x citizenship. The RTC based this conclusion on our ruling in Caasi v. Court of Appeals[1]
that naturalization in a foreign country results in the abandonment of domicile in the
Philippines. Thus, the RTC found that Velasco failed to comply with the residency
DECISION requirement under the Constitution, making him ineligible to vote in the May 14, 2007
elections.
BRION, J.:
Velasco appealed the RTC decision to the Court of Appeals (CA) via a petition for
review under Rule 42 of the Rules of Court; the appeal was docketed as CA-G.R. SP
No. 98259.
This petition for certiorari filed by Nardo M. Velasco (Velasco) under Rule 64, in relation
with Rule 65, of the Revised Rules of Court seeks to set aside and annul [1] the

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ELEC SET 2
It was against this factual backdrop that Velasco filed on March 28, 2007 his COC for
the position of Mayor of Sasmuan. Velascos COC contains, among others, the required
information that he is a registered voter of Precinct No. 103-A of Sasmuan, Pampanga.
He executed on even date an Affidavit renouncing, abandoning, and relinquishing his
American citizenship.
The next day, private respondent Mozart Panlaqui (Panlaqui), who also filed his COC
for the position of Mayor of Sasmuan, filed a Petition to Deny Due Course To and/or To
Cancel Velascos COC, claiming that: (1) contrary to Velascos claim, he is not a
registered voter of Precinct No. 103-A, as his name is not included in the list of voters;
(2) the RTC has rendered a decision denying Velascos petition for inclusion as voter;
(3) Velasco does not possess the constitutional requirement of legal residency (i.e.,
one year residency in the Philippines immediately preceding the election as provided
under Section 1, Article V of the Constitution) to register as voter; he arrived in the
Philippines only last September 14, 2006; and (4) Velasco is not eligible to run for office
since he is not a qualified voter. Panlaqui asked for the annulment, revocation and
cancellation of, or denial of due course to, Velascos COC that allegedly contained
obvious and gross material misrepresentation. The case was docketed as SPA Case
No. 07-148.
In his Answer, Velasco denied the allegations of Panlaquis petition and claimed in
defense that: (1) he possesses all the qualifications of a voter of Sasmuan, as he is a
domiciliary and permanent resident of the Philippines and Sasmuan since birth; that,
when he took his oath of allegiance on July 31, 2006, he is considered not to have lost
his Philippine citizenship and therefore continues to enjoy full civic and political rights
under the Constitution and the statutes; (2) the appeal or review of the RTC decision is
pending resolution with the Court of Appeals; (3) he did not act with malice, bad faith
and gross misrepresentation when he stated that he is a registered voter of Precinct
No. 103-A of Sasmuan in his COC, as the MTC decision has not been reversed with
finality; (4) he has renounced his American citizenship on March 29, 2007 or prior to
the filing of his COC, making him eligible to seek elective public office pursuant to
Republic Act No. 9255; and (5) he possesses all the qualifications of a voter of
Sasmuan and of a candidate for Municipal Mayor, Sasmuan being his domicile of origin
and permanent residence. He claimed that he is qualified to vote and seek public office
until a final judgment is rendered saying otherwise; hence, he did not commit any
misrepresentation and Panlaquis petition should be dismissed.
Velasco garnered 7,822 votes [the most number] for the position of Mayor of Sasmuan
in the May 14, 2007 election. As the COMELEC failed to resolve Panlaquis petition
prior to the election, Velasco was proclaimed Mayor of Sasmuan on May 16, 2007. He
took his oath of office and assumed the powers and functions of the office on June 30,
2007.
On July 6, 2007, the Second Division of the COMELEC issued a Resolution the first of
the interrelated resolutions assailed in the present petition canceling Velascos COC
and declaring his proclamation as Mayor of Sasmuan null and void. Citing Section 138
of the Omnibus Election Code (OEC)[2] which declared the decision of the RTC in the
voters inclusion/exclusion proceedings final and executory, the Second Division of the
COMELEC found Velasco guilty of material misrepresentation when he claimed in his
COC filed on March 28, 2007 that he is a registered voter of Sasmuan, Pampanga.
This defect, according to the Second Division, effectively voided Velascos COC.
Velasco moved to reconsider the Second Divisions Resolution, but the COMELEC en
banc in a Resolution dated October 15, 2007 (also assailed in this petition) denied the
motion. The COMELEC en banc essentially affirmed the Second Divisions ruling.
Additionally, the COMELEC pointed out that in the absence of a writ or order issued by
the CA (where the appeal from the RTC decision in the inclusion/exclusion case was
then pending) enjoining the enforcement of the RTC decision, it had to apply Section
138 of the OEC. Velasco responded to this development by filing the present petition
with this Court.
THE PETITION, COMMENTS AND RELATED DEVELOPMENTS
The petition is based on the following grounds/arguments:
1. Respondent Comelec committed grave abuse of discretion when it decided the
issue on petitioners right to vote despite its apparent lack of jurisdiction on this issue
and the pendency of such prejudicial issue before the CA.
2. Respondent Comelec committed grave abuse of discretion when it ruled that the
March 1, 2008 decision of the RTC of Guagua, Pampanga reversing the earlier decision
of the MTC of Sasmuan, Pampanga is already final and executory.
3. Respondent COMELEC committed grave abuse of discretion when it annulled
the proclamation of the petitioner without notice and hearing.
4. Respondent Comelec committed grave abuse of discretion when it ruled that
petitioner committed material misrepresentation in his COC by merely relying on private
respondents baseless allegations in the petition to deny due course to petitioners COC
without taking into consideration that petitioner possesses all the qualifications and
none of the disqualification of a voter.
In his comment, Panlaqui asserts that: (1) Velasco committed forum shopping, as
another case involving the same issues is on appeal and pending resolution with the
CA; and (2) in light of this appeal, not all the requisites for a petition for certiorari are
present; in the alternative and assuming certiorari to be proper, the COMELEC did not
commit grave abuse of discretion, as the RTC decision is final, executory, and non-
appealable.
The Office of the Solicitor General (OSG) filed a Comment in behalf of the COMELEC.
The OSG argues that the COMELEC did not commit grave abuse of discretion. The
COMELEC has jurisdiction under Section 78 of Batas Pambansa Blg. 881, as
amended, or the OEC over petitions to deny due course and/or cancel a COC (COC-
denial/cancellation). There was likewise no denial of due process; Velasco filed an
Answer to Panlaquis petition and was fully heard before the COMELEC denied due
course to his COC. The OSG also argues that Velascos immigration to the United
States and subsequent acquisition of US citizenship constituted an abandonment of his
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ELEC SET 2
Philippine domicile and residence. Finally, the OSG claims that Velasco committed
misrepresentation in declaring his residence at Sasmuan in his COC a ground for the
cancellation of COC under Section 78 of the OEC. The real issue, according to the
OSG, is not Velascos right to vote, but the misrepresentation he committed when he
filed his COC.
On March 5, 2008, the COMELEC issued a writ of execution to implement the assailed
resolutions. The CA, on the other hand, rendered on March 13, 2008 its decision in CA-
GR SP No. 98259 granting Velascos appeal, thereby reversing and setting aside the
RTC decision. The appellate court ruled that, contrary to the RTCs finding, Velasco
effectively reacquired his residence when he decided to relocate in the Philippines for
good in 2003; from 2003-2006, Velasco stayed in the Philippines for a total of almost
two (2) years for the last three (3) years immediately preceding the May 14, 2007
election; from the totality of these acts, Velasco revealed his intention to reacquire his
rights as a Filipino citizen. Citing Macalintal v. Commission on Elections,[3] the CA
considered Velasco a qualified voter.
On Velascos motion, we issued a status quo ante order enjoining the COMELEC from
implementing the assailed resolutions.
In an interesting twist, the CA issued on August 19, 2008 an Amended Decision in
response to a motion for reconsideration of its earlier decision dismissing Velascos
Rule 42 petition for lack of jurisdiction. It reversed its earlier ruling that it has jurisdiction
to entertain the appeal, explicitly stating that the jurisprudence it cited to support its
appellate jurisdiction in voters inclusion/exclusion proceeding is no longer good law
because of the amendments to the election law on which its cited jurisprudence was
based. It declared that Section 138 of the OEC being explicit that the decision on appeal
by the RTC in inclusion and exclusion cases is immediately final and executory appears
to be a clear mandate for this Court (the CA) not to entertain instant petition for lack of
jurisdiction.
Based on these submissions, we are called upon to resolve the following issues: (1)
whether Velasco forum-shopped; and (2) whether the COMELEC gravely abused its
discretion in canceling Velascos COC.
THE COURTS RULING
We find the petition devoid of merit.
Grave Abuse of Discretion.
The well-settled rule is that this Court will not interfere with a COMELEC decision unless
the COMELEC is shown to have committed grave abuse of discretion.[4] Correctly
understood, grave abuse of discretion is such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, or [an] exercise of power in an arbitrary
and despotic manner by reason of passion or personal hostility, or an exercise of
judgment so patent and gross as to amount to an evasion of a positive duty or to a
virtual refusal to perform the duty enjoined, or to act in a manner not at all in
contemplation of law.[5]
Velasco imputes grave abuse of discretion on the COMELEC for canceling his COC on
the sole ground that he committed false representation when he claimed that he is a
registered voter of Precinct No. 103-A. This imputation directly poses to us the question:
was the COMELEC ruling capriciously, whimsically, and arbitrarily made?
In answering this question, we recognize at the outset that together with the
cancellation of the COC that is directly before us, we have to consider the effect and
impact of the inclusion/exclusion proceedings that Velasco brought before the MTC
which, on appeal to the RTC, ultimately led to the denial of his listing as a voter in
Sasmuan. While this inclusion/exclusion case is not before us, it was the ruling in this
proceeding that the COMELEC cited as ground for the cancellation of Velascos COC
after Velasco claimed that he is a registered voter of Precinct No. 103-A of Sasmuan,
Pampanga.
The COC Denial/Cancellation Proceedings.
Section 74, in relation with Section 78 of the OEC governs the cancellation of, and grant
or denial of due course to, COCs. The combined application of these sections requires
that the facts stated in the COC by the would-be candidate be true, as any false
representation of a material fact is a ground for the COCs cancellation or the
withholding of due course. To quote these provisions:
SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall state
that the person filing it is announcing his candidacy for the office stated therein and that
he is eligible for said office; if for Member of the Batasang Pambansa, the province,
including its component cities, highly urbanized city or district or sector which he seeks
to represent; the political party to which he belongs; civil status; his date of birth;
residence; his post office address for all election purposes; his profession or
occupation; that he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and
decrees promulgated by the duly constituted authorities; that he is not a permanent
resident or immigrant to a foreign country; that the obligation assumed by his oath is
assumed voluntarily, without mental reservation or purpose of evasion; and that the
facts stated in the certificate of candidacy are true to the best of his knowledge.
xxxx
SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed
by any person exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false. The petition may be filed at any
time not later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing not later than fifteen days
before the election.
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ELEC SET 2
The false representation that these provisions mention must necessarily pertain to a
material fact, not to a mere innocuous mistake. This is emphasized by the
consequences of any material falsity: a candidate who falsifies a material fact cannot
run; if he runs and is elected, cannot serve; in both cases, he or she can be prosecuted
for violation of the election laws. Obviously, these facts are those that refer to a
candidates qualification for
elective office, such as his or her citizenship and residence.[6] The candidates status
as a registered voter similarly falls under this classification as it is a requirement that,
by law (the Local Government Code), must be reflected in the COC. The reason for this
is obvious: the candidate, if he or she wins, will work for and represent the local
government under which he is running.
Separately from the requirement of materiality, a false representation under Section 78
must consist of a deliberate attempt to mislead, misinform, or hide a fact which would
otherwise render a candidate ineligible. In other words, it must be made with the
intention to deceive the electorate as to the would-be candidates qualifications for
public office.[7]
The Voters Inclusion/Exclusion Proceedings.
The process of voters inclusion/exclusion, as part of the voters registration process, is
provided and defined under Sections 138, 139 and 143 of the OEC. These sections
provide:
Sec. 138. Jurisdiction in inclusion and exclusion cases. The Municipal and Metropolitan
Trial Courts shall have original and exclusive jurisdiction over all cases of inclusion and
exclusion of voters from the list in their respective cities or municipalities. Decisions of
the Municipal or Metropolitan Trial Courts may be appealed by the aggrieved party to
the Regional Trial Courts within five (5) days from receipt of notice thereof. Otherwise,
said decision shall become final and executory. The regional trial court shall decide the
appeal within ten (10) days from the time it is received and the decision shall become
final and executory. No motion for reconsideration shall be entertained [As amended
by Section 33 of Republic Act No. 8189 (RA 8189)].
Sec. 139. Petition for inclusion of voters in the list. Any person whose application for
registration has been disapproved by the Board or whose name has been stricken out
from the list may file with the court a petition to include his name in the permanent list
of voters in his precinct at any time except one hundred five (105) days prior to a regular
election or seventy-five (75) days prior to a special election. It shall be supported by a
certificate of disapproval of his application and proof of service of notice of his petition
upon the Board. The petition shall be decided within fifteen (15) days after its filing.
If the decision is for the inclusion of voters in the permanent list of voters, the Board
shall place the application for registration previously disapproved in the corresponding
book of voters and indicate in the application for registration the date of the order of
inclusion and the court which issued the same [As amended by Section 34 of RA 8189].
Section 143. Common rules governing judicial proceedings in the matter of inclusion,
exclusion and correction of names of voters.
(a) Petition for inclusion, exclusion, or correction of names of voters shall be filed during
office hours;
(b) Notice of the place, date and time of the hearing of the petition shall be served upon
the members of the Board and the challenged voter upon the filing of the petition.
Service of such notice may be made by sending a copy thereof by personal delivery or
by leaving it in the possession of a person of sufficient discretion in the residence of the
challenged voter, or by registered mail. Should the foregoing procedures be not
practicable, the notice shall be posted in the bulletin board of the city or municipal hall
and in two (2) other conspicuous places within the city or municipality;
xxx
(c) A petition shall refer only one to one (1) precinct and implead the Board as
respondents;.
(d) No costs shall be assessed against any party in these proceedings. However, if the
court should find that the application has been filed solely to harass the adverse party
and cause him to incur expenses, it shall order the culpable party to pay the costs and
incidental expenses.
(e) Any voter, candidate or political party who may be affected by the proceedings may
intervene and present his evidence.
(f) The decision shall be based on the evidence presented and in no case rendered
upon a stipulation of facts. x x x
(g) The petition shall be heard and decided within ten (10) days from the date of its
filing. Cases appealed to the Regional Trial Court shall be decided within ten (10) days
from receipt of the appeal. In all, cases, the court shall decide these petitions not later
than fifteen (15) days before the election and the decision shall be immediately final
and executory. [As amended by Section 32 of RA 8189]
Inclusion/exclusion proceedings essentially involve the simple issue of whether a
petitioner shall be included in or excluded from the list of voters based on the
qualifications required by law and the facts presented to show possession of these
qualifications.
The Proceedings Compared.
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ELEC SET 2
In terms of purpose, voters inclusion/exclusion and COC denial/cancellation are
different proceedings; one refers to the application to be registered as a voter to be
eligible to vote, while the other refers to the application to be a candidate. Because of
their differing purposes, they also involve different issues and entail different reliefs
although the facts on which they rest may have commonalities where they may be said
to converge or interface. One such commonality is on the matter of residence. Section
9 of Republic Act 8189, otherwise known as the Voters Registration Act (VRA), requires
that voters shall have resided in the Philippines for at least one (1) year, and in the
place wherein they propose to vote, at least six (6) months immediately preceding the
election. The OEC, on the other hand, requires under its Section 74 that the would-be
candidate state material facts such as, among others, his residence. Under the
combined application of Section 65 of the OEC and Section 39 of the Local Government
Code (LGC), a local official must among others have the same residency requirement
as required under the VRA. Another point of convergence is on the candidates status
as a registered voter; a candidate for a local government position must be a registered
voter in the barangay, municipality, province, or city where he or she intends to run for
office.
The remedies available in the two proceedings likewise differ. Velascos remedy from
the adverse decision in his petition for inclusion as voter is as provided under Section
138 of the OEC quoted above. From the MTC, the recourse is to the RTC whose
decision is final and executory, correctible by the Court of Appeals only by a writ of
certiorari based on grave abuse of discretion amounting to lack of jurisdiction. On the
other hand, the approval of a certificate of candidacy or its denial is a matter directly
cognizable by the COMELEC, with the decision of its Division reviewable by the
COMELEC en banc whose decision is in turn reviewable by this Court under Rule 64
of the Rules of Court and Section 7, of Article IX-A of the 1987 Constitution.
No Grave Abuse of Discretion.
In the present case, the ERB denied Velascos registration as a voter, which denial the
RTC subsequently supported. As already mentioned, this denial by the RTC is, by law,
final and executory. Since Velascos knowledge of the RTC decision at the time he filed
his COC is not disputed, the COMELEC concluded that he committed a material
misrepresentation when he stated under oath in his COC that he is a registered voter
of Sasmuan.
Under these facts and legal situation, we cannot hold that the COMELECs conclusion
is legally erroneous, much less that it is tainted by grave abuse of discretion. It is a
matter of record, appearing in a final RTC judgment no less, that Velasco was not a
registered voter of Sasmuan at the time he filed his COC. His claim in this regard was
therefore false and was a material misrepresentation. Other than his active
misrepresentation, Velasco likewise was inexplicably silent about, and thus knowingly
omitted any mention of, the denial of his registration. As the COMELEC did, we can
only conclude that he deliberately concealed the existence of the final and executory
RTC ruling when he filed his COC. He could not disclose this fact as the unavoidable
consequence of disclosure was to render him unqualified to be a candidate.[8]
That the COMELEC relied on the RTC ruling in canceling the COC of Velasco cannot
likewise be a legal error as Section 138 of the OEC is clear and categorical in its terms:
Decisions of the Municipal or Metropolitan Trial Courts may be appealed by the
aggrieved party to the Regional Trial Courts within five (5) days from receipt of notice
thereof. Otherwise, said decision shall become final and executory. The regional trial
court shall decide the appeal within ten days from the time the appeal was received
and its decision shall be final and executory. We note that when Velasco sought
recourse with the Court of Appeals, he did so by way of appeal under Rule 42 of the
Rules of Court a recourse that was not available to him because an RTC ruling in an
inclusion/exclusion is final and executory. This led the appellate court to recognize in
its Amended Decision of August 19, 2008, albeit on motion for reconsideration, that it
had no jurisdiction to entertain Velascos appeal.
The Right to Vote
The above discussions, particularly on the distinctions between inclusion/exclusion
proceedings and COC denial/cancellation proceedings, refute and belie Velascos
position that the COMELEC improperly ruled on his right to vote when it cancelled his
COC. The tribunals given authority by law and who actually ruled on whether Velasco
should have the right to vote in Sasmuan, Pampanga were the ERB, the MTC, and
subsequently, the RTC. The COMELEC did not so rule; it merely recognized the RTCs
final and executory ruling on the matter.
This conclusion is not a hairsplitting sophistry, but one based on clear distinctions
drawn by the law. As above pointed out, inclusion/exclusion and COC
denial/cancellation proceedings, while they may ultimately have common factual bases,
are still proceedings poles apart in terms of the issues, reliefs, and remedies involved.
That at some point they may converge (as in this case, where the COC
denial/cancellation proceeding relied on and used the results of the voters
inclusion/exclusion proceeding) does not erase the distinctions between them. In the
context of this case, it does not mean that the COMELEC commonly with the ERB, the
MTC and the RTC ruled on Velascos right to vote because the COMELEC relied on the
latters ruling.
In Domino v. COMELEC[9] where this Court faced the contention that the decision of
the first level court in an exclusion proceeding on the issue of residence is final and
conclusive on the COMELEC hearing a COC denial/cancellation proceeding under
Section 78 of the OED we ruled that the factual findings of the trial court and its resultant
conclusions in the inclusion/exclusion proceedings on matters other than the right to
vote in the precinct within its territorial jurisdiction are not conclusive on and do not rise
to the level of a res judicata ruling with respect to the COMELEC.[10] The reason is
that inclusion/exclusion proceedings, while judicial in character, are summary
proceedings.[11] We further added that a decision in an inclusion/exclusion proceeding
does not operate as a bar to any future action in any other election that a party may
take concerning his right to be registered as a voter.[12] Otherwise stated, a ruling on
the right to vote by the trial court for a specific election is binding on the COMELEC. By
clear implication, the COMELEC itself does not rule on the right to vote by recognizing
5
ELEC SET 2
in a Sec. 78 COC denial/cancellation proceeding the final and executory ruling by a
court, as mandated by law, in an inclusion/exclusion proceeding.
Velascos Qualifications/Disqualifications as a Voter
Whether Velasco possesses all the qualifications and none of the disqualifications to
register as a voter of Sasmuan, Pampanga is a matter that is not directly before us as
his inclusion as a Sasmuan voter is not before us. As the COMELEC did, we rely on
the final and executory RTC ruling excluding Velasco from the Sasmuan voters list. We
observe, however, that at the time he filed his application for registration with the
COMELEC local office on October 13, 2006, Velasco was a dual citizen. The records
show that Velasco renounced his American citizenship only on March 28, 2007,[13]
although he secured his dual citizenship status as early as July 31, 2006 at the
Philippine Consulate in San Francisco, California.[14] Under his dual citizenship status,
he possessed the right to vote in Philippine elections through the absentee voting
scheme under Republic Act No. 9189 (the Oversees Absentee Voting Law or the
OAVL)[15] as we ruled in Nicolas-Lewis v. COMELEC.[16] In Macalintal v.
COMELEC,[17] we significantly said that absentee voters are exempted from the
constitutional residency requirement for regular Philippine voters. Thus, the residency
requirements we cited above under the VRA and the LGC do not apply to Velasco,
assuming he registered as a dual citizen/absentee voter.
By law, however, the right of dual citizens who vote as absentee voters pertains only to
the election of national officials, specifically: the president, the vice-president, the
senators, and party-list representatives.[18] Thus, Velasco was not eligible to vote as
an absentee voter in the local election of 2007. In fact, the records do not show that
Velasco ever registered as an absentee voter for the 2007 election.[19]
On the other hand, Velasco could not have registered as a regular voter because he
did not possess the residency requirement of one-year stay in the Philippines and six-
months stay in the municipality where he proposed to vote at the time of the election.
The records show that he arrived in the Philippines only on September 14, 2006 and
applied for registration on October 13 of that year[20] for the election to be held in May
of the following year (2007). To hark back and compare his case to a similar case,
Coquilla v. COMELEC,[21] Velasco, before acquiring his dual citizenship status, was
an American citizen who had lost his residency and domiciliary status in the Philippines;
whose sojourn in the Philippines was via a visitors visa; and who never established
permanent residence in the Philippines. Like Coquilla before him, Velasco could not
have therefore validly registered as a regular voter eight months before the May 2007
local elections.
The Due Process Issue.
Finally, we see no merit in Velascos argument that the COMELEC annulled his
proclamation as Mayor without due process. The nullification of his proclamation as a
winning candidate was an outcome - a necessary legal consequence of the cancellation
of his COC pursuant to Section 78 of the OEC. A COC cancellation proceeding
essentially partakes of the nature of a disqualification case.[22] In the present case,
Velasco filed an Answer to Panlaquis petition to cancel or deny due course to his
(Velascos) COC; hence, he was afforded the opportunity to be heard in the cancellation
of his COC.
Under the combined application of Sections 6[23] and 7[24] of Republic Act No.
6646,[25] candidates who are disqualified by final judgment before the election shall
not be voted for and the votes cast for them shall not be counted. If the disqualification
or COC cancellation/denial case is not resolved before election day, the proceedings
shall continue even after the election and the proclamation of the winner.[26] In the
meanwhile, the candidate may be voted for and be proclaimed if he or she wins, but
the COMELECs jurisdiction to deny due course and cancel his or her COC continues.
This rule applies even if the candidate facing disqualification is voted for and receives
the highest number of votes,[27] and even if the candidate is proclaimed and has taken
his oath of office.[28] The only exception to this rule is in the case of congressional or
senatorial candidates with unresolved disqualification or COC denial/cancellation cases
after the elections. Pursuant to Section 17 of Article VI of the Constitution, the
COMELEC ipso jure loses jurisdiction over these unfinished cases in favor of the
respective Senate or the House of Representatives electoral tribunals after the
candidates take their oath of office.[29]
Under these circumstances, Velascos claim of denial of due process is misplaced since
he was given the opportunity to be heard in a proceeding that would result in the
annulment of his proclamation; due process was duly served because its essence is
the opportunity to be heard and this was fully given to Velasco.[30]
In sum, the COMELEC resolutions canceling Velascos COC are procedurally and
substantively correct, thus negating the grave abuse of discretion that Velasco alleges.
As our final point, we are aware that Velasco won the May 14, 2007 mayoralty election
in Sasmuan. We recognize, too, that we have ruled in the past that a candidates victory
in the election may be considered a sufficient basis to rule in favor of the candidate
sought to be disqualified if the main issue involves defects in the candidates certificate
of candidacy. We said that while provisions relating to certificates of candidacy are
mandatory in terms, it is an established rule of interpretation as regards election laws,
that mandatory provisions requiring certain steps before elections will be construed as
directory after the elections, to give effect to the will of the people. We so ruled in Quizon
v. COMELEC and Saya-ang v. COMELEC.[31]
The present case perhaps presents the proper time and opportunity to fine-tune our
above ruling. We say this with the realization that a blanket and unqualified reading and
application of this ruling can be fraught with dangerous significance for the rule of law
and the integrity of our elections. For one, such blanket/unqualified reading may provide
a way around the law that effectively negates election requirements aimed at providing
the electorate with the basic information to make an informed choice about a candidates
eligibility and fitness for office.
The first requirement that may fall when an unqualified reading is made is Section 39
of the LGC which specifies the basic qualifications of local government officials. Equally
6
ELEC SET 2

susceptive of being rendered toothless is Section 74 of the OEC that sets out what 2. Asistio v. Aguirre
should be stated in a COC. Section 78 may likewise be emasculated as mere delay in
the resolution of the petition to cancel or deny due course to a COC can render a LUIS A. ASISTIO,
Section 78 petition useless if a candidate with false COC data wins. To state the Petitioner,
obvious, candidates may risk falsifying their COC qualifications if they know that an
election victory will cure any defect that their COCs may have. Election victory then
becomes a magic formula to bypass election eligibility requirements.
- versus -
In the process, the rule of law suffers; the clear and unequivocal legal command,
framed by a Congress representing the national will, is rendered inutile because the
people of a given locality has decided to vote a candidate into office despite his or her
lack of the qualifications Congress has determined to be necessary. HON. THELMA CANLAS TRINIDAD-PE AGUIRRE, Presiding Judge, Regional Trial
Court, Caloocan City, Branch 129; HON. ARTHUR O. MALABAGUIO, Presiding Judge,
In the present case, Velasco is not only going around the law by his claim that he is Metropolitan Trial Court, Caloocan City, Branch 52; ENRICO R. ECHIVERRI, Board of
registered voter when he is not, as has been determined by a court in a final judgment. Election Inspectors of Precinct 1811A, Barangay 15, Caloocan City; and the CITY
Equally important is that he has made a material misrepresentation under oath in his ELECTION OFFICER, Caloocan City,
COC regarding his qualification. For these violations, he must pay the ultimate price Respondents.
the nullification of his election victory. He may also have to account in a criminal court
for making a false statement under oath, but this is a matter for the proper authorities
to decide upon.
G.R. No. 191124
We distinguish our ruling in this case from others that we have made in the past by the
clarification that COC defects beyond matters of form and that involve material Present:
misrepresentations cannot avail of the benefit of our ruling that COC mandatory PUNO, C.J.,
requirements before elections are considered merely directory after the people shall CARPIO,
have spoken. A mandatory and material election law requirement involves more than CORONA,
the will of the people in any given locality. Where a material COC misrepresentation CARPIO MORALES,
under oath is made, thereby violating both our election and criminal laws, we are faced VELASCO, JR.,
as well with an assault on the will of the people of the Philippines as expressed in our NACHURA,
laws. In a choice between provisions on material qualifications of elected officials, on LEONARDO-DE CASTRO,
the one hand, and the will of the electorate in any given locality, on the other, we believe BRION,
and so hold that we cannot choose the electorate will. The balance must always tilt in PERALTA,
favor of upholding and enforcing the law. To rule otherwise is to slowly gnaw at the rule BERSAMIN,
of law. DEL CASTILLO,
ABAD,
WHEREFORE, we DISMISS the petition for lack of merit. The Status Quo Order we VILLARAMA, JR.,
issued is hereby ordered IMMEDIATELY LIFTED. We DECLARE that there is no more PEREZ, and
legal impediment or obstacle to the implementation of the assailed COMELEC MENDOZA, JJ.
resolutions. No costs.
Promulgated:

SO ORDERED. April 27, 2010

x-----------------------------------------------------------------------------------------x

RESOLUTION

NACHURA, J.:

7
ELEC SET 2
This is a petition[1] for certiorari, with prayer for the issuance of a status quo ante order,
under Rule 65 of the Rules of Court, assailing the Order[2] dated February 15, 2010
issued, allegedly with grave abuse of discretion amounting to lack or excess of
jurisdiction, by public respondent Judge Thelma Canlas Trinidad-Pe Aguirre (Judge
Aguirre) of the Regional Trial Court (RTC), Branch 129, Caloocan City in SCA No. 997.
The petition likewise ascribes error in, and seeks to nullify, the decision dated February
5, 2010, promulgated by the Metropolitan Trial Court (MeTC), Branch 52, Caloocan
City in SCA No. 10-582.
The Antecedents
On January 26, 2010, private respondent Enrico R. Echiverri (Echiverri) filed against
petitioner Luis A. Asistio (Asistio) a Petition[3] for Exclusion of Voter from the
Permanent List of Voters of Caloocan City (Petition for Exclusion) before the MeTC,
Branch 52, Caloocan City. Public respondent Judge Arthur O. Malabaguio (Judge
Malabaguio) presides over MeTC Branch 52. The petition was docketed as SCA No.
10-582, entitled Atty. Enrico R. Echiverri v. Luis Aquino Asistio, the Board of Election
Inspectors of Precinct No. 1811A, Barangay 15, Caloocan City and the City Election
Officer of Caloocan.
In his petition, Echiverri alleged that Asistio is not a resident of Caloocan City,
specifically not of 123 Interior P. Zamora St., Barangay 15, Caloocan City, the address
stated in his Certificate of Candidacy (COC) for Mayor in the 2010 Automated National
and Local Elections. Echiverri, also a candidate for Mayor of Caloocan City, was the
respondent in a Petition to Deny Due Course and/or Cancellation of the Certificate of
Candidacy filed by Asistio. According to Echiverri, when he was about to furnish Asistio
a copy of his Answer to the latters petition, he found out that Asistios address is non-
existent. To support this, Echiverri attached to his petition a Certification[4] dated
December 29, 2009 issued by the Tanggapan ng Punong Barangay of Barangay 15
Central, Zone 2, District II of Caloocan City. He mentioned that, upon verification of the
2009 Computerized Voters List (CVL) for Barangay 15, Asistios name appeared under
voter number 8, with address at 109 Libis Gochuico, Barangay 15, Caloocan City.[5]
Echiverri also claimed that Asistio was no longer residing in this address, since what
appeared in the latters COC for Mayor[6] in the 2007 elections was No. 110 Unit 1, P.
Zamora St., Barangay 15, Caloocan City,[7] but that the address used in Asistios
current COC is situated in Barangay 17. He said that, per his verification, the voters[8]
duly registered in the 2009 CVL using the address No. 123 P. Zamora St., Barangay
17, Caloocan City did not include Asistio.[9]
On January 28, 2010, the MeTC issued a Notice of Hearing[10] notifying Asistio,
through Atty. Carlos M. Caliwara, his counsel of record in SPA No. 09-151 (DC), entitled
Asistio v. Echiverri, before the Commission on Elections (COMELEC), of the scheduled
hearings of the case on February 1, 2 and 3, 2010.
On February 2, 2010, Asistio filed his Answer Ex Abundante Ad Cautelam with
Affirmative Defenses.[11] Asistio alleged that he is a resident of No. 116, P. Zamora
St., Caloocan City, and a registered voter of Precinct No. 1811A because he mistakenly
relied on the address stated in the contract of lease with Angelina dela Torre Tengco
(Tengco), which was 123 Interior P. Zamora St., Barangay 15, Caloocan City.[12]
Trial on the merits ensued, after which Judge Malabaguio directed the parties to file
their respective position papers on or before February 4, 2010.
Echiverri filed his Memorandum[13] on February 4, 2010. Asistio, on the other hand,
failed to file his memorandum since the complete transcripts of stenographic notes
(TSN) were not yet available.[14]
On February 5, 2010, Judge Malabaguio rendered a decision,[15] disposing, as follows
WHEREFORE, premises considered, the Election Registration Board, Caloocan City
is hereby directed to remove the name of LUIS AQUINO ASISTIO from the list of
permanent voters of Caloocan City.
SO ORDERED.[16]
Meanwhile, on January 26, 2010, Echiverri filed with the COMELEC a Petition for
Disqualification,[17] which was docketed as SPA No. 10-013 (DC). The Petition was
anchored on the grounds that Asistio is not a resident of Caloocan City and that he had
been previously convicted of a crime involving moral turpitude. Asistio, in his Answer
with Special and Affirmative Defenses (Com Memorandum),[18] raised the same
arguments with respect to his residency and also argued that the President of the
Philippines granted him an absolute pardon.
On February 10, 2010, Asistio filed his Notice of Appeal[19] and his Appeal (from the
Decision dated February 5, 2010)[20] and paid the required appeal fees through postal
money orders.[21]
On February 11, 2010, Echiverri filed a Motion[22] to Dismiss Appeal, arguing that the
RTC did not acquire jurisdiction over the Appeal on the ground of failure to file the
required appeal fees.
On the scheduled hearing of February 15, 2010, Asistio opposed the Motion and
manifested his intention to file a written comment or opposition thereto. Judge Aguirre
directed Echiverris counsel to file the appropriate responsive pleading to Asistios
appeal in her Order[23] of same date given in open court.
Judge Aguirre, however, cancelled her February 15, 2010 Order, and issued an
Amended Order[24] on that date holding in abeyance the filing of the responsive
pleading of Echiverris counsel and submitting the Motion for resolution.
In another Order also dated February 15, 2010, Judge Aguirre granted the Motion on
the ground of non-payment of docket fees essential for the RTC to acquire jurisdiction
over the appeal. It stated that Asistio paid his docket fee only on February 11, 2010 per
the Official Receipt of the MeTC, Office of the Clerk of Court.
8
ELEC SET 2
Hence, this petition.
Per Resolution[25] dated February 23, 2010, this Court required the respondents to
comment on the petition, and issued the Status Quo Ante Order prayed for.
On March, 8, 2010, Echiverri filed his Comment to the Petition (with Motion to Quash
Status Quo Ante Order). Departing from Echiverris position against the Petition, the
Office of the Solicitor General (OSG), on March 30, 2010, filed its Comment via
registered mail. The OSG points out that Asistios family is known to be one of the
prominent political families in Caloocan City, and that there is no indication whatsoever
that [Asistio] has ever intended to abandon his domicile, Caloocan City. Further, the
OSG proposes that the issue at hand is better resolved by the people of Caloocan City.
In all, the OSG propounds that technicalities and procedural niceties should bow to the
sovereign will of the people of Caloocan City.
Our Ruling
In her assailed Order, Judge Aguirre found
The payment of docket fees is an essential requirement for the perfection of an appeal.
The record shows that Respondent-Appellant paid his docket fee only on February 11,
2010, evidenced by O.R. No. 05247240 for Php1,510.00 at the Metropolitan Trial Court,
Office of the Clerk of Court, yet the Notice of Appeal was filed on February 10, 2010, at
5:30 p.m., which is way beyond the official office hours, and a copy thereof was filed at
the Office of the Clerk of Court, Metropolitan Trial Court at 5:00 p.m. of February 10,
2010. Thus, it is clear that the docket fee was not paid simultaneously with the filing of
the Notice of Appeal.
It taxes the credulity of the Court why the Notice of Appeal was filed beyond the regular
office hours, and why did respondent-appellant had to resort to paying the docket fee
at the Mall of Asia when he can conveniently pay it at the Office of the Clerk of Court,
Metropolitan Trial Court along with the filing of the Notice of Appeal on February 10,
2010 at 5:30 p.m. at the Metropolitan Trial Court, which is passed [sic] the regular office
hours.
The conclusion is then inescapable that for failure to pay the appellate docket fee, the
Court did not acquire jurisdiction over the case.[26]
This Court observes, that while Judge Aguirre declares in her Order that the appellate
docket fees were paid on February 11, 2010, she conveniently omits to mention that
the postal money orders obtained by Asistio for the purpose were purchased on
February 10, 2010.[27] It is noteworthy that, as early as February 4, 2010, Asistio
already manifested that he could not properly file his memorandum with the MeTC due
to the non-availability of the TSNs. Obviously, these TSNs were needed in order to
prepare an intelligent appeal from the questioned February 5, 2010 MeTC Order.
Asistio was able to get copies of the TSNs only on February 10, 2010, the last day to
file his appeal, and, naturally, it would take some time for him to review and incorporate
them in his arguments on appeal. Understandably, Asistio filed his notice of appeal and
appeal, and purchased the postal money orders in payment of the appeal fees on the
same day. To our mind, Asistio, by purchasing the postal money orders for the purpose
of paying the appellate docket fees on February 10, 2010, although they were tendered
to the MeTC only on February 11, 2010, had already substantially complied with the
procedural requirements in filing his appeal.
This appeal to the RTC assails the February 5, 2010 MeTC Order directing Asistios
name to be removed from the permanent list of voters [in Precinct 1811A] of Caloocan
City. The Order, if implemented, would deprive Asistio of his right to vote.
The right to vote is a most precious political right, as well as a bounden duty of every
citizen, enabling and requiring him to participate in the process of government to ensure
that it can truly be said to derive its power solely from the consent of its constituents.[28]
Time and again, it has been said that every Filipinos right to vote shall be respected,
upheld, and given full effect.[29] A citizen cannot be disenfranchised for the flimsiest of
reasons. Only on the most serious grounds, and upon clear and convincing proof, may
a citizen be deemed to have forfeited this precious heritage of freedom.
In this case, even if we assume for the sake of argument, that the appellate docket fees
were not filed on time, this incident alone should not thwart the proper determination
and resolution of the instant case on substantial grounds. Blind adherence to a
technicality, with the inevitable result of frustrating and nullifying the constitutionally
guaranteed right of suffrage, cannot be countenanced.[30]
On more than one occasion, this Court has recognized the emerging trend towards a
liberal construction of procedural rules to serve substantial justice. Courts have the
prerogative to relax rules of even the most mandatory character, mindful of the duty to
reconcile both the need to speedily end litigation and the parties right to due process.
It is true that, faced with an appeal, the court has the discretion whether to dismiss it or
not. However, this discretion must be sound; it is to be exercised pursuant to the tenets
of justice, fair play and equity, in consideration of the circumstances obtaining in each
case. Thus, dismissal of appeals on purely technical grounds is frowned upon as the
policy of the Court is to encourage resolution of cases on their merits over the very rigid
and technical application of rules of procedure used only to help secure, not override,
substantial justice. Verily, it is far better and more prudent for the court to excuse a
technical lapse and afford the parties a review of the case on appeal rather than dispose
of it on a technicality that would cause grave injustice to the parties.[31]
The primordial issue in this case is whether Asistio should be excluded from the
permanent list of voters of [Precinct 1811A] of Caloocan City for failure to comply with
the residency required by law.
Section 117 of The Omnibus Election Code (Batas Pambansa Bilang 881) states:
9
ELEC SET 2
SECTION 117. Qualifications of a voter.Every citizen of the Philippines, not otherwise
disqualified by law, eighteen years of age or over, who shall have resided in the
Philippines for one year and in the city or municipality wherein he proposes to vote for
at least six months immediately preceding the election, may be registered as a voter.
Any person who transfers residence to another city, municipality or country solely by
reason of his occupation; profession; employment in private or public service;
educational activities; work in military or naval reservations; service in the army, navy
or air force; the constabulary or national police force; or confinement or detention in
government institutions in accordance with law, shall be deemed not to have lost his
original residence.
This provision is echoed in Section 9 of The Voters Registration Act of 1996 (Republic
Act No. 8189), to wit:
SEC. 9. Who May Register.All citizens of the Philippines not otherwise disqualified by
law who are at least eighteen (18) years of age and who shall have resided in the
Philippines for at least one (1) year and in the place wherein they propose to vote for
at least six (6) months immediately preceding the election, may register as a voter.
Any person who temporarily resides in another city, municipality or country solely by
reason of his occupation, profession, employment in private or public service,
educational activities, work in the military or naval reservations within the Philippines,
service in the Armed Forces of the Philippines, the National Police Force, or
confinement or detention in government institutions in accordance with law, shall not
be deemed to have lost his original residence.
Any person who, on the day of registration may not have reached the required age or
period of residence but who, on the day of election shall possess such qualifications,
may register as a voter.
From these provisions, the residency requirement of a voter is at least one (1) year
residence in the Philippines and at least six (6) months in the place where the person
proposes or intends to vote. Residence, as used in the law prescribing the qualifications
for suffrage and for elective office, is doctrinally settled to mean domicile, importing not
only an intention to reside in a fixed place but also personal presence in that place,
coupled with conduct indicative of such intention[32] inferable from a persons acts,
activities, and utterances.[33] Domicile denotes a fixed permanent residence where,
when absent for business or pleasure, or for like reasons, one intends to return.[34] In
the consideration of circumstances obtaining in each particular case, three rules must
be borne in mind, namely: (1) that a person must have a residence or domicile
somewhere; (2) once established, it remains until a new one is acquired; and (3) that a
person can have but one residence or domicile at a time.[35]
Domicile is not easily lost. To successfully effect a transfer thereof, one must
demonstrate: (1) an actual removal or change of domicile; (2) a bona fide intention of
abandoning the former place of residence and establishing a new one; and (3) acts
which correspond with that purpose.[36] There must be animus manendi coupled with
animus non revertendi. The purpose to remain in or at the domicile of choice must be
for an indefinite period of time; the change of residence must be voluntary; and the
residence at the place chosen for the new domicile must be actual.[37]
Asistio has always been a resident of Caloocan City since his birth or for more than 72
years. His family is known to be among the prominent political families in Caloocan
City. In fact, Asistio served in public office as Caloocan City Second District
representative in the House of Representatives, having been elected as such in the
1992, 1995, 1998, and 2004 elections. In 2007, he also sought election as City Mayor.
In all of these occasions, Asistio cast his vote in the same city. Taking these
circumstances into consideration, gauged in the light of the doctrines above
enunciated, it cannot be denied that Asistio has qualified, and continues to qualify, as
a voter of Caloocan City. There is no showing that he has established domicile
elsewhere, or that he had consciously and voluntarily abandoned his residence in
Caloocan City. He should, therefore, remain in the list of permanent registered voters
of Precinct No. 1811A, Barangay 15, Caloocan City.
That Asistio allegedly indicated in his Certificate of Candidacy for Mayor, both for the
2007 and 2010 elections, a non-existent or false address, or that he could not be
physically found in the address he indicated when he registered as a voter, should not
operate to exclude him as a voter of Caloocan City. These purported
misrepresentations in Asistios COC, if true, might serve as basis for an election offense
under the Omnibus Election Code (OEC),[38] or an action to deny due course to the
COC.[39] But to our mind, they do not serve as proof that Asistio has abandoned his
domicile in Caloocan City, or that he has established residence outside of Caloocan
City.
With this disquisition, we find no necessity to discuss the other issues raised in the
petition.
WHEREFORE, the petition is GRANTED. The assailed Order dated February 15, 2010
of the Regional Trial Court, Branch 129, Caloocan City in SCA No. 997 and the decision
dated February 5, 2010 of the Metropolitan Trial Court, Branch 52, Caloocan City in
SCA No. 10-582 are REVERSED and SET ASIDE. Petitioner Luis A. Asistio remains a
registered voter of Precinct No. 1811A, Barangay 15, Caloocan City. The Status Quo
Ante Order issued by this Court on February 23, 2010 is MADE PERMANENT.
SO ORDERED.
3. Ututalum v. COMELEC
G.R. No. 84843-44 January 22, 1990
NURHUSSEIN A. UTUTALUM, petitioner,
vs.
COMMISSION ON ELECTIONS and ARDEN S. ANNI, respondents.
10
ELEC SET 2
Pedro Q. Quadra for petitioner.
Brillantes, Nachura, Navarro & Arcilla Law Offices for private respondent.
MELENCIO-HERRERA, J.:
Petitioner, Nurhussein A. Ututalum, prays for the reversal, on the ground of grave abuse
of discretion, of the 19 April and 31 August 1988 Resolutions of public respondent
Commission on Elections (COMELEC), in Case Nos. SP 87-469 and 87-497, which
declined to reject the election returns from all the precincts of the Municipality of Siasi,
Sulu, in the last 30 May 1987 Congressional elections and to annul respondent Arden
S. Anni's proclamation.
The undisputed facts follow:
1. Petitioner Ututalum and private respondent, Arden S. Anni, were among the
candidates in the last 30 May 1987 Congressional elections for the Second District of
Sulu. 30 May was the date reset by the COMELEC from the 11 May 1987 elections.
2. The election returns from Siasi showed that Petitioner Ututalum obtained four
hundred and eighty-two (482) votes while respondent Anni received thirty-five thousand
five hundred and eighty-one (35,581) votes out of the thirty-nine thousand eight
hundred and one (39,801) registered voters (pp. 13, 187, Rollo). If the returns of Siasi
were excluded, Petitioner Ututalum would have a lead of 5,301 votes.
3. On 4 June 1987, during the canvass of votes, Petitioner Ututalum, without
availing of verbal objections, filed written objections to the returns from Siasi on the
ground that they "appear to be tampered with or falsified" owing to the "great excess of
votes" appearing in said returns. He then claimed that multiplying the 42 precincts of
Siasi by 300 voters per precinct, there should have been only 12,600 registered voters
and not 36,663 voters who cast their votes, thereby exceeding the actual authorized
voters by 23,947 "ghost voters." (In his Petition, however, he admits that an error was
committed since "in the May 30,1987 elections, Siasi had 148 precincts" (p. 6, Rollo).
He then prayed for the exclusion from the canvass of any election returns from Siasi.
4. On the same day, 4 June, the Provincial Board of Canvassers of Sulu
dismissed petitioner's objections because they had been "filed out of time or only after
the Certificate of Canvass had already been canvassed by the Board and because the
grounds for the objection were not one of those enumerated in Section 243 of the
Election Code" (See Order, p. 155, Rollo). Also on the same day, 4 June 1987,
petitioner filed with the Board of Canvassers his Notice of Appeal from said Resolution
to the COMELEC.
5. On 5 June 1987, petitioner filed his first Petition with the COMELEC seeking
a declaration of failure of elections in the Municipality of Siasi and other mentioned
municipalities; that the COMELEC annul the elections in Siasi and conduct another
election thereat; and order the Provincial Board of Canvassers to desist from
proclaiming any candidate pending a final determination of the Petition.
6. On 8 June 1987, the Provincial Board of Canvassers forwarded Petitioner's
appeal as well as its Order dismissing the written objections to the COMELEC, with the
request for authority to proclaim Respondent Anni as the winning candidate.
7. On 11 June l987, in Case No. SPC 87-180, the COMELEC resolved that there
was no failure of elections in the 1st and 2nd Districts of Sulu except in specified
precincts in the 1st District.
8. On 14 June 1987, the Sulu Provincial Board of Canvassers proclaimed
respondent Anni as the winner. He subsequently took his oath of office and entered
upon the discharge of its functions in July 1987.
9. On 16 June 1987, petitioner filed a second Petition with the COMELEC
praying for the annulment of Respondent Anni's proclamation and for his own
proclamation as Congressman for the Second District of Sulu.
10. While those two petitions were pending, one Lupay Loong, a candidate for
Governor of Sulu, filed a verified Petition with the COMELEC to annul the List of Voters
of Siasi, for purposes of the election of local government officials (docketed as SPC
Case No. 87-624, p. 9, Rollo). This Petition was opposed by Respondent Anni.
Petitioner Ututalum was not a party to this proceeding.
On 16 January 1988, the COMELEC issued, in said SPC 87-624, a Resolution
annulling the Siasi List of Voters "on the ground of massive irregularities committed in
the preparation thereof and being statistically improbable", and ordering a new
registration of voters for the local elections of 15 February 1988 (p. 41 Rollo).
Said Resolution was affirmed by this Court in Anni vs. COMELEC, G.R. No. 81398, 26
January 1988 (p. 43, Rollo). A new Registry List was subsequently prepared yielding
only 12,555 names (p. 228, Rollo).
11. Immediately after having been notified of the annulment of the previous Siasi
List of Voters, Petitioner Ututalum filed a supplemental pleading with the COMELEC
entreating that such annulment be considered and applied by the Commission in
resolving his two Petitions against Respondent Anni (p. 319, Rollo).
12. On 19 April 1988, in a consolidated Per Curiam Resolution, the COMELEC
(First Division) denied Petitioner Ututalum's two Petitions "for lack of merit, with the
advise (sic) that he may file an election contest before the proper forum, if so desired."
Declared the COMELEC inter alia:
While we believe that there was padding of the registry list of voters in Siasi, yet to
annul all the votes in this municipality for purposes of the May 30, 1987 elections would
disenfranchise the good or valid votes. As held in Espaldon vs. Comelec (G.R. No. L-
11
ELEC SET 2
78987, August 25, 1987), this Commission is not the proper forum nor is it a proper
ground in a pre-proclamation controversy, to wit:
Padded voter's list, massive fraud and terrorism is clearly not among the issues that
may be raised in a pre-proclamation controversy. They are proper grounds for an
election protest.
Petitioner Ututalum is now before us assailing the foregoing Resolution.
Petitioner contends that the issue he raised before the COMELEC actually referred to
"obviously manufactured returns," a proper subject matter for a pre-proclamation
controversy and, therefore, cognizable by the COMELEC, in accordance with Section
243 of the Omnibus Election Code, which provides:
Sec 243. The following shall be the issues that may be raised in a pre-proclamation
controversy:
xxx xxx xxx
c) The election returns were prepared under duress, threats, coercion or
intimidation or they are obviously manufactured or not authentic; (emphasis supplied)
xxx xxx xxx
Further, that the election returns from Siasi should be excluded from the canvass of the
results since its original List of Voters had already been finally annulled; and, lastly, that
there is no need to re-litigate in an election protest the matter of annulment of the
Registry List, this being already a "fait accompli."
It is our considered view, however, that given the factual setting, it can not justifiably be
contended that the Siasi returns, per se, were "obviously manufactured" and, thereby,
a legitimate issue in a pre-proclamation controversy. It is true that in Lagumbay vs.
COMELEC (L-2544, 31 January 1966, 16 SCRA 175), relied upon heavily by Petitioner
Ututalum, this Court ruled that the returns are obviously manufactured where they show
a great excess of votes over what could have been legally cast. The Siasi returns
however, do not show prima facie that on the basis of the old List of Voters, there is
actually a great excess of votes over what could have been legally cast considering
that only 36,000 persons actually voted out of the 39,801 voters. Moreover, the
Lagumbay case dealt with the "manufacture" of returns by those charged with their
preparation as shown prima facie on the questioned returns themselves. Not so in this
case which deals with the preparation of the registry list of voters, a matter that is not
reflected on the face of said returns.
Basically, therefore, petitioner's cause of action is the padding of the Siasi List of Voters,
which, indeed, is not a listed ground for a pre- proclamation controversy.
Sec. 243. Issues that may be raised in pre-proclamation controversy.The
following shall be proper issues that may be raised in a pre-proclamation controversy:
(a) Illegal composition or proceedings of the board of canvassers;
(b) The canvassed election returns are incomplete, contain material defects,
appear to be tampered with or falsified, or contain discrepancies in the same returns or
in other authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of
this Code;
(c) The election returns were prepared under duress, threats, coercion, or
intimidation, or they are obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in controverted polling places were
canvassed, the results of which materially affected the standing of the aggrieved
candidate or candidates.
As pointed out in Espaldon vs. COMELEC, L-78987, 25 August 1987:
Padded voters' list, massive fraud, and terrorism are clearly not among the issues that
may be raised in a pre-proclamation controversy. They are proper grounds for an
election protest.
And as held in the case of Bautista vs. COMELEC, G.R. No. 78994, March 10, 1988:
The scope of pre-proclamation controversy is limited to the issues enumerated under
Section 243 of the Omnibus Election Code. The enumeration therein of the issues that
may be raised in a pre-proclamation controversy is restrictive and exclusive (see also
Sanchez vs. COMELEC, G.R. No. L-78461, 12 August 1987, 153 SCRA 67).
But petitioner insists that the new Registry List should be considered and applied by
the COMELEC as the legal basis in determining the number of votes which could be
legally cast in Siasi. To allow the COMELEC to do so retroactively, however, would be
to empower it to annul a previous election because of the subsequent annulment of a
questioned registry in a proceeding where petitioner himself was not a party. This
cannot be done. In the case of Bashier vs. COMELEC (L-33692, 24 February 1972, 43
SCRA 238), this Court categorically ruled:
The subsequent annulment of the voting list in a separate proceeding initiated motu
proprio by the Commission and in which the protagonists here were not parties, cannot
retroactively and without due process result in nullifying accepted election returns in a
previous election simply because such returns came from municipalities where the
precinct books of voters were ordered annulled due to irregularities in their preparation.
Besides, the List of Voters used in the 1987 Congressional elections was then a validly
existing and still unquestioned permanent Registry List. Then, it was the only legitimate
roster which could be used as basis for voting. There was no prior petition to set it aside
for having been effected with fraud, intimidation, force, or any other similar irregularity
in consonance with Section 145 of the Omnibus Election Code. 1 That list must then
be considered conclusive evidence of persons who could exercise the right of suffrage
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ELEC SET 2

in a particular election (Abendante vs. Relato 94 Phil. 8; Medenilla vs. Kayanan, L- before the proper forum. Recourse to such remedy would settle the matter in
28448-49, 30 July 1971, 40 SCRA 154). controversy conclusively and once and for all.

Moreover, the preparation of a voter's list is not a proceeding before the Board of Having arrived at the foregoing conclusions, a discussion of the other peripheral issues
Canvassers. A pre-proclamation controversy is limited to challenges directed against raised has been rendered unnecessary.
the Board of Canvassers, not the Board of Election Inspectors (Sanchez vs.
COMELEC, ante), and such challenges should relate to specified election returns WHEREFORE, this Petition for Certiorari is hereby DISMISSED and the assailed
against which petitioner should have made specific verbal objections (Sec. 245, Resolutions are AFFIRMED. No costs.
Omnibus Election Code; Pausing vs. Yorac, et al., G.R. No. 82700, 4 August 1988,
Endique vs. COMELEC, G.R. Nos. 82020-21, 22 November 1988), but did not. SO ORDERED.

That the padding of the List of Voters may constitute fraud, or that the Board of Election
Inspectors may have fraudulently conspired in its preparation, would not be a valid
basis for a pre-proclamation controversy either. For, whenever irregularities, such as
fraud, are asserted, the proper course of action is an election protest.

Such irregularities as fraud, vote-buying and terrorism are proper grounds in an election
contest but may not as a rule be invoked to declare a failure of election and to
disenfranchise the greater number of the electorate through the misdeeds, precisely,
of only a relative few. Otherwise, elections will never be carried out with the resultant
disenfranchisement of the innocent voters, for the losers will always cry fraud and
terrorism (GAD vs. COMELEC, G.R. No. 78302, May 26, 1987, 150 SCRA 665).

Petitioner Ututalum's other submission is that the Siasi returns should be excluded
since the List of Voters on which it was based has been conclusively annulled. He thus
asks for the application of the rule on res judicata. This is neither possible. Aside from
the fact that the indispensable requisites of res judicata, namely, identity of parties, of
subject matter, and of cause of action are not all present, the ruling desired would, as
the COMELEC had opined, disenfranchise the good and valid votes in the
Congressional elections of 30 May 1987.

Finally, this Petition has to fail if only on the basis of the equally important doctrine
enunciated in Padilla vs. COMELEC (L-68351-52, 9 July 1985, 137 SCRA 424),
reiterated in Baldo vs. COMELEC (G.R. No. 83205,14 July 1988) that:

Where the respondent had already been proclaimed as the elected representative of
the contested congressional district, and has long assumed office and has been
exercising the powers, functions, and duties appurtenant to said office, the remedy of
the petitioner lies with the House of Representatives Electoral Tribunal. The pre-
proclamation controversy becomes moot and academic.

and in the more recent case of Antonio vs. COMELEC (G.R. No. 84678, 29 March
1989):

Where the winning candidates have been proclaimed, the pre-proclamation

controversies cease. A pre-proclamation controversy is no longer viable at this point in
time and should be dismissed. The proper remedy thereafter is an election protest

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