CHAPTER 10 Under Section 3, Rule 35 of the COMELEC Rules of Procedure, an
election protest should be filed within 10 days from the date of
PRE-PROCLAMATION CONTROVERSIES
SECTION 241. Definition.
A pre-proclamation controversy refers to any question pertaining to
or affecting the proceedings of the board of canvassers which may be
raised by any candidate or by any registered political party or coalition
of political parties before the board or directly with the Commission, or
any matter raised under Sections 233, 234, 235 and 236 in relation to
the preparation, transmission, receipt, custody and appreciation of the
election returns.
PURPOSE: to ascertain the winner of the election on the basis of
election returns duly authenticated; ascertain sovereign will
- Prevent the nefarious practice known as Grab the proclamation,
prolonging the protest
JURISDICTION: COMELEC Exclusive Jurisdiction
- no pre-proclamation case allowed for: National Position: President,
Vice President, Senators, Congress (Sec. 15, RA 7166)
SECTION 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
Section 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.
CASES:
a. VILLAMOR v. COMELEC [G.R. No. 169865. July 21, 2006.]
This petition for certiorari under Rule 65 of the Rules of Court seeks to
annul the April 11, 2005 Resolution of the Second Division of the
Commission on Elections (COMELEC) in EAC No. A-11-2004 as well as
the Order of the COMELEC En Banc dated August 5, 2005. The assailed
resolution affirmed the Order dated July 23, 2004 of the Regional Trial
Court of Danao City, Branch 25 in Case No. EP-2004-02 which
reconsidered its Order dated June 24, 2004 dismissing the election
protest filed by respondent Amytis De Dios-Batao.
FACTS: On May 13, 2004, petitioner Virginio Villamor was proclaimed
as mayor of Carmen, Cebu, by the Municipal Board of Canvassers
(MBC) in the elections held on May 10, 2004 over his opponent,
respondent Amytis De Dios-Batao.
On May 17, 2004, respondent filed a petition to annul the proclamation
of petitioner alleging as grounds the illegal composition of the MBC
and its proceedings. The case was docketed as SPC No. 04-083 and
raffled to the COMELEC Second Division.
Subsequently, or on May 24, 2004, respondent filed an election protest
with the Regional Trial Court of Danao City which was docketed as Case
No. EP-2004-02 and raffled to Branch 25 thereof. Petitioner filed
his Answer to the Petition with Counter Protest on June 7, 2004.
However, in its Order dated June 24, 2004, the trial court dismissed
the election protest for lack of jurisdiction because it was filed one-
day late.
proclamation of the results of the election. Since petitioner was
proclaimed on May 13, 2004, respondent had until May 23, 2004 to file
an election protest. However, respondent filed the same only on May 24,
2004, thus, it was dismissed by the trial court in an Order dated June 24,
2004.
In the meantime, COMELEC issued on May 9, 2005 a Resolution in SPC
No. 04-083 which is the petition to annul the proclamation of petitioner,
the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Petition To Declare Null And
Void Proclamation dated 17 May 2004 filed by petitioners Amythis De
Dios Batao, et al., is hereby DISMISSED for lack of merit. SO
ORDERED. Hence, this petition.
ISSUE: (1) whether the trial court can act on a motion for reconsideration
in an election protest;
(2) whether the trial court prematurely admitted respondent's election
protest pending a pre-proclamation controversy.
HELD: We shall first discuss the second issue.
As a general rule, the proper remedy after the proclamation of the
winning candidate for the position contested would be to file a regular
election protest or a petition for quo warranto. The filing of an election
protest or a petition for quo warranto precludes the subsequent filing of
a pre-proclamation controversy or amounts to the abandonment of one
earlier filed, thus depriving the COMELEC of the authority to inquire into
and pass upon the title of the protestee or the validity of his
proclamation. The reason is that once the competent tribunal has
acquired jurisdiction of an election protest or a petition for quo warranto,
all questions relative thereto will have to be decided in the case itself
and not in another proceeding. This procedure will prevent confusion
and conflict of authority.
Moreover, not all actions seeking the annulment of proclamation
suspend the running of the period for filing an election protest or a
petition for quo warranto. For it is not the relief prayed for which
distinguishes actions under 248 from an election protest or quo
warranto proceedings, but the grounds on which they are based.
In the case at bar, respondent's petition to annul the proclamation rested
mainly on the alleged illegal composition of the municipal board of
canvassers and its proceedings which is an issue that may be properly
raised in a pre-proclamation controversy.
Under paragraph (b) of Section 5 of Rule 27 of the COMELEC Rules
of Procedure, if the petition involves the illegal composition of the
board of canvassers, it must be filed immediately when the board
begins to act as such, or at the time of the appointment of the
member whose capacity to sit as such is objected to if it comes
after the canvassing of the board, or immediately at the point where
the proceedings are or begin to be illegal.
Thus, we held in Laodenio v. Commission on Elections that when the
issue involves the illegal composition of the Board, the same cannot be
questioned after the proclamation of the winner, to wit:
Although Sec. 17 of R.A. 7166 and Sec. 5 par. (a)(1) (not Sec. 4 as
erroneously cited by petitioner), of Rule 27 of the COMELEC Rules of
Procedure also allow filing of a petition directly with respondent
COMELEC when the issue involves the illegal composition of the Board,
Sec. 5, par. (b), of the same Rule requires that it must be filed
immediately when the Board begins to act as such, or at the time of the
appointment of the member whose capacity to sit as such is objected to
if it comes after the canvassing of the Board, or immediately at the point
where the proceedings are or begin to be illegal.
In the instant case, respondent's petition to annul petitioner's
proclamation based on the alleged illegal composition of the board of
canvassers is a pre-proclamation controversy which should have been
filed prior to petitioner's proclamation. However, respondent filed the
petition on May 17, 2004 only or four days after petitioner's
proclamation. As such, the filing of the petition to annul the proclamation
of petitioner did not suspend the running of the reglementary period
within which to file an election protest and inevitably, it did not suspend
the latter's period to file an Answer with Counter Protest. Accordingly,
the subsequent filing of the election protest on May 24, 2004 by
respondent amounted to the abandonment of the pre-proclamation
controversy earlier filed.
WHEREFORE, The Order dated June 24, 2004 of the Regional Trial
Court dismissing respondent's election protest for lack of jurisdiction is
REINSTATED.
b. LAGUMBAY v. COMELEC [G.R. No. L-25444. January 31, 1966.]
1. ELECTION LAWS; JURISDICTION; ELECTION FRAUDS. Frauds
in the holding of election should be settled by the corresponding courts
or electoral tribunals where testimonial or documentary evidence is
necessary; but where the fraud is so palpable from the return itself, there
is no reason to give it prima facie value.
2. ID.; ID.; FALSE OR FABRICATED RETURNS; DUTY OF THE
COMMISSION ON ELECTIONS TO REJECT THEM. Where the
returns were obviously false or fabricated, the Commission on Elections
has the power and duty to reject them.
FACTS: This petition prays for revision of an order of the Commission
on Elections declining to reject the returns of certain precincts of some
municipalities in Mindanao. The Constitution provides for review by this
Court of the rulings of the said Commission.
The matter being urgent, and having reached the conclusion that the
returns of certain questioned precincts were "obviously manufactured"
within the meaning of pertinent jurisprudence, particularly
Mitchell vs. Stevens, we issued on December 24, 1965, a short
resolution upholding the Commission's power and duty to reject the
returns of about fifty precincts.
"It appearing therein that contrary to all statistical probabilities in
the first set, in each precinct the number of registered voters equaled
the number of ballots and the number of votes reportedly cast and
tallied for each and every candidate of the Liberal Party, the party in
power; whereas, all the candidates of the Nacionalista Party got exactly
zero; and in the second set, again contrary to all statistical
probabilities all the reported votes were for candidates of the Liberal
Party, all of whom were credited with exactly the same number of votes
in each precinct, ranging from 240 in one precinct to 650 in another
precinct; whereas, all the candidates of the Nacionalista Party were
given exactly zero in all said precincts."
DOCTRINE: We opined that the election result in said precincts as
reported, was utterly improbable and clearly incredible. For it is not
likely, in the ordinary course of things, that all the electors of one
precinct would, as one man, vote for all the eight candidates of the
Liberal Party, without giving a single vote to one of the eight
candidates of the Nacionalista Party. Such extraordinary
coincidence was quite impossible to believe, knowing that the
Nacionalista Party had and has a nationwide organization, with
branches in every province, and was, in previous years, the party
in power in these islands.
We also know from our experience in examining ballots in the three
Electoral Tribunals (Presidential, Senate, and House) that a large
portion of the electors do not fill all the blanks for senators in their ballots.
Indeed, this observation is confirmed by the big differences in the votes
received by the eight winning senators in this as well as in previous
national elections; almost a million votes between the first place and the
eight.
Furthermore, in 1965, the total number of electors who cast their votes
was 6,833,369 (more or less). If every voter had written eight names on
his ballot, the total number of votes cast for all the candidates would be
that number multiplied by 8, namely 54,666,952. But the total number of
votes tallied for the candidates for senator amounted to 49,374,942 only.
The difference between the two sums represents the number of
ballots that did not contain eight names for senators. In other
words, some 5 million ballots did not carry eight names. Of course, this
is a rough estimate, because some ballots may have omitted more
names, in which case, the number of incomplete ballots would be less.
But the general idea and the statistical premise is there.
The same statistical result is deducible from the 1963 election data: total
number of electors who voted, 7,712,019; if each of them named eight
senators, the total votes tallied should have been 61,696,152, and yet
the total number tallied for all the senatorial candidates was 45,812,470
only. A greater number of incomplete ballots.
It must be noted that this is not an instance wherein one return gives
to one candidate all the votes in the precinct, even as it gives
exactly zero to the other. This is not a case where some senatorial
candidates obtain zero exactly, while some others receive a
few scattered votes. Here, all the eight candidates of one party
garnered all the votes, each of them receiving exactly the same number;
whereas all the eight candidates of the other party got precisely nothing.
The main point to remember is that there is no blockvoting nowadays.
What happened to the vote of the Nacionalista inspector? There was
one in every precinct. Evidently, either he became a traitor to his party,
or was made to sign a false return by force or other illegal means. If he
signed voluntarily, but in breach of faith, the Nacionalista inspector
betrayed his party; and, any voting or counting of ballots therein, was a
sham and a mockery of the national suffrage.
Hence, denying prima facie recognition to such returns on the ground
that they are manifestly fabricated or falsified, would constitute a
practical approach to the Commission's mission to insure free and
honest elections.
These returns were obviously false or fabricated prima facie. Let us
take for example, precinct No. 3 of Andong, Lanao del Sur. There were
648 registered voters. According to such return all the eight candidates
of the Liberal Party got 648 each, and the eight Nacionalista candidates
got exactly zero.
We hold such return to be evidently fraudulent or false because of
the inherent improbability of such a result against statistical
probabilities especially because at least one vote should have been
received by the Nacionalista candidates, i. e., the vote of the
Nacionalista inspector. It is, of course, "possible" that such inspector did
not like his party's senatorial line-up; but it is not probable that he
disliked all of such candidates, and it is not likely that he favored all the
eight candidates of the Liberal Party. Therefore, most probably, he was
made to sign an obviously false return, or else he betrayed his party, in
which case, the election therein if any was no more than a
barefaced fraud and a brazen contempt of the popular polls.
Of course, we agree that frauds in the holding of the election should be
handled and finally settled by the corresponding courts or electoral
tribunals. That is the general rule, where testimonial or documentary
evidence, is necessary; but where the fraud is so palpable from the
return itself (res ipsa loquitur the thing speaks for itself), there is no
reason to accept it and give it prima facie value.
At any rate, fraud or no fraud, the verdict in these fifty precincts may
ultimately be ascertained before the Senate Electoral Tribunal. All we
hold now, is that the returns show "prima facie" that they do not reflect
true and valid reports of regular voting. The contrary may be shown by
candidate Climaco in the corresponding election protest.
The well-known delay in the adjudication of election protests often gave
the successful contestant a mere pyrrhic victory, i.e., a vindication when
the term of office is about to expire, or has expired. And so the notion
has spread among candidates for public office that the "important thing"
is the proclamation; and to win it, they or their partisans have tolerated
or abetted the tampering or the "manufacture" of election returns just to
get the proclamation, and then let the victimized candidate to file the
protest, and spend his money to work for an empty triumph.
It is generally admitted that the practice has prevailed in all previous
elections. Never was the point pressed upon us in a more clear-cut
manner. And without, in any way, modifying our stand as outlined in the
Nacionalista Party vs. Commission decision, we feel the mores of the
day require application even extension of the principle in the
Mitchel decision, which is realistic and commonsensical even as it
strikes a blow at such pernicious "grab-the- proclamation-prolong-the-
protest" slogan of some candidates or parties.
c. ESPALDON v. COMELEC
"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-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."
d. CASTROMAYOR v. COMELEC [G.R. No. 120426. November 23,
1995.]
POLITICAL LAW; ELECTION LAW; COMMISSION ON ELECTIONS;
RULES OF PROCEDURE; SECTION 7 RULE 27 THEREOF;
CORRECTION OF ERRORS IN TABULATION OR TALLYING OF
RESULTS BY BOARD OF CANVASSERS; APPLICABLE IN CASES
WHERE THE VALIDITY OF THE PROCLAMATION IS IN QUESTION.
The proceedings before the Municipal Board of Canvassers (MBC)
should be summary. Should any party be dissatisfied with the ruling of
the MBC, the party concerned shall have a right to appeal to the
COMELEC en banc, in accordance with Rule 27, Section 7 of the
COMELEC Rules of Procedure. Although this provision applies to pre-
proclamation controversies and here the proclamation of petitioner has
already been made, there is nothing to suggest that it cannot be applied
to cases like the one at bar, in which the validity of the proclamation
is precisely in question.
On the contrary, in Duremdes v. COMELEC, (178 SCRA 746 [1989])
this Court sustained the power of the COMELEC en banc to order a
correction of the Statement of Votes to make it conform to the election
returns in accordance with a procedure similar to the procedure now
embodied in Rule 27, Section 7. If the Rule was not applied, it was only
because it was adopted after that case had arisen. Otherwise, as we
said there, this procedure "best recommends itself specially considering
that the Statement of Votes is a vital component in the electoral
process." Indeed, since the Statement of Votes forms the basis of the
Certificate of Canvass and of the proclamation, any error in the
statement ultimately affects the validity of the proclamation. It begs the
question, therefore, to say that this is not a preproclamation controversy
and the procedure for pre-proclamation controversies cannot be applied
to the correction in the computation of the totals in the Statement of
Votes.
It should be pointed out, in this connection, that what is involved here is
a simple problem of arithmetic. The Statement of Votes is merely a
tabulation per precinct of the votes obtained by the candidates as
reflected in the election returns. In making the correction in computation,
the MBC will be acting in an administrative capacity, under the control
and supervision of the COMELEC. Hence any question pertaining to the
proceedings of the MBC may be raised directly to the COMELEC en
banc in the exercise of its constitutional function to decide questions
affecting elections.
What has just been said also disposes of petitioner's other contention
that because his proclamation has already been made, any remedy of
the losing party is an election protest. As held in the Duremdes case: It
is DUREMDES' further submission that his proclamation could not be
declared null and void because a pre-proclamation controversy is not
proper after a proclamation has been made, the proper recourse being
an election protest. This is on the assumption, however, that there has
been a valid proclamation. Where a proclamation is null and void, the
proclamation is no proclamation at all and the proclaimed
candidate's assumption of office cannot deprive the COMELEC of
the power to declare such nullity and annul the proclamation.
FACTS: This is a petition for certiorari, prohibition,
and mandamus seeking to set aside a resolution of the COMELEC
which directs the Municipal Board of Canvassers of Calinog, Iloilo to
reconvene for the purpose of annulling the proclamation of petitioner
Nicolas C. Castromayor as councilor of that municipality and of
proclaiming the winner after a recomputation of the votes.
Petitioner was a candidate for a seat in the eight-member Sangguniang
Bayan of the municipality of Calinog, Iloilo in the elections held on May
8, 1995.
After the votes had been cast, the Municipal Board of Canvassers (MBC)
convened at 6:00 p.m. of that day and began the canvass of the election
returns from the different precincts in the municipality. The canvassing
lasted well into the night of May 9, 1995. The totals of the votes cast
were checked by the Municipal Accountant who acted as recorder of
votes.
On May 10, 1995, the winners were proclaimed on the basis of the
results of the canvass which showed that petitioner received 5,419 votes
and took eighth place in the election for members of the Sangguniang
Bayan.
However, when Alice M. Garin, Chairman of the MBC, rechecked the
totals in the Statement of Votes the following day, she discovered that
the number of votes cast for Nilda C. Demorito, as member of the
Sangguniang Bayan, was 62 more than that credited to her. As Garin
later explained to the Provincial Election Supervisor, the returns from
one precinct had been overlooked in the computation of the totals. Two
employees of the Treasurer's Office, who were assigned to post the
returns on the tally board outside the municipal building, also discovered
the error and reported it to Garin.
As matters stood, therefore, the total number of votes cast for Demorito
was 5,470, or 51 more than the 5,419 votes cast for petitioner.
Garin reported the matter to the Regional Election Director, Atty. Rodolfo
Sarroza, who advised her to request authority from the COMELEC to
reconvene for the purpose of correcting the error.
On May 13, 1995, a fax letter was sent to the Law Department of the
COMELEC in Manila. The letter explained the problem and asked for
authority for the MBC to reconvene in order to correct the error, annul
the proclamation of petitioner and proclaim Demorito as the eighth
member of the Sangguniang Bayan.
Petitioner protested the proposed action in a letter dated June 5, 1995
to COMELEC Executive Director Resurreccion A. Borra. He questioned
the legality of the actuations of Garin as stated in her letter.
On June 9, 1995, the MBC was informed by fax of the COMELEC's
action on its request.
Accordingly, on June 14, 1995, the MBC sent notices to the parties
concerned that it was going to reconvene on June 22, 1995, at 10:00
a.m., at the Session Hall of the Sangguniang Bayan, to make a
correction of errors. Hence this petition to annul COMELEC Resolution
No. 95-2414.
ISSUE:
Petitioner complains that the COMELEC en banc issued the resolution
in question without notice and hearing, solely on the basis of the fax
letter of the MBC. He claims that even if the matter were treated as a
pre-proclamation controversy, there would nonetheless be a need for
hearing, with notice to him and an opportunity to refute any contrary
argument which might be presented. He invokes the ruling of this Court
in Bince, Jr. v. COMELEC that the COMELEC is "without power to
partially or totally annul a proclamation or suspend the effects of a
proclamation without notice and hearing."
Petitioner's contention is well taken. That is why upon the filing of the
petition in this case, we issued a temporary restraining order against
respondents enjoining them from enforcing the resolution of the
COMELEC. Public respondents, through the Solicitor General, now
claim, however, that said resolution merely stated the purpose of the
reconvening of respondent Board, and that the process and hearing for
the annulment of petitioner's proclamation, due to mistake in computing
the votes of Sangguniang Bayan candidate Nilda Demorito, will formally
take place when respondent Board reconvenes, at which time and place,
petitioner was already informed of xxx xxx xxx
In the aforesaid reconvening, petitioner would have been free to
interpose all his objections, and discuss his position regarding the
matter.
To be sure, the COMELEC did not itself annul the proclamation of
petitioner, but, by "direct[ing] the Municipal Board of Canvassers of said
municipality to reconvene to annul the proclamation of Nicolas C.
Castromayor," the COMELEC in effect did so. After all, the authority of
the COMELEC was sought because, without such authority, the MBC
would not have the power to annul the proclamation of petitioner.
Be that as it may and in order to obviate the necessity of remanding this
case to the COMELEC for further proceedings in accordance with due
process, we will accept this representation of the public respondents that
what the COMELEC resolution contemplates is a hearing before the
MBC at which petitioner will be heard on his objection and that only if
warranted will the MBC be authorized to set aside the proclamation of
petitioner previously made on May 10, 1995. We find this to be the
expedient course of action to take, considering that, after all, in its notice
to the candidates, the MBC did not state that it was going to reconvene
to annul petitioner's proclamation and make a new one but only that it
was going to do so "for the correction of the errors noted in the
Statement of Votes Per Precinct/Municipality."
The proceedings before the MBC should be summary. Should any party
be dissatisfied with the ruling of the MBC, the party concerned shall have
a right to appeal to the COMELEC en banc, in accordance with Rule 27,
7 of the COMELEC Rules of Procedure, which provides as follows:
7. Correction of Errors in Tabulation or Tallying of Results by the Board
of Canvassers. (a) Where it is clearly shown before proclamation that
manifest errors were committed in the tabulation or tallying of election
returns, or certificates of canvass, during the canvassing as where (1) a
copy of the election returns of one precinct or two or more copies of a
certificate of canvass were tabulated more than once, (2) two copies of
the election returns or certificate of canvass were tabulated separately,
(3) there was a mistake in the adding or copying of the figures into the
certificate of canvass or into the statement of votes by precinct, or (4)
so-called election returns from non-existent precincts were included in
the canvass, the board may motu proprio, or upon verified petition by
any candidate, political party, organization or coalition of political
parties, after due notice and hearing, correct the errors committed.
(b) The order for correction must be made in writing and must be
promulgated.
(c) Any candidate, political party, organization or coalition of political
parties aggrieved by said order may appeal therefrom to the
Commission within twenty-four (24) hours from the promulgation.
(d) Once an appeal is made, the board of canvassers shall not proclaim
the winning candidates, unless their votes are not affected by the
appeal.
(e) The appeal must implead as respondents the Board of Canvassers
concerned and all parties who may be adversely affected thereby.
(f) Upon receipt of the appeal, the Clerk of Court concerned shall
forthwith issue summons, together with a copy of the appeal, to the
respondents.
(g) The Clerk of Court concerned shall immediately set the appeal for
hearing.
(h) The appeal shall be heard and decided by the Commission en banc.
Although this provision applies to pre-proclamation controversies and
here the proclamation of petitioner has already been made, there is
nothing to suggest that it cannot be applied to cases like the one at bar,
in which the validity of the proclamation is precisely in question.
On the contrary, in Duremdes v. COMELEC, this Court sustained the
power of the COMELEC en banc to order a correction of the Statement
of Votes to make it conform to the election returns in accordance with a
procedure similar to the procedure now embodied in Rule 27, 7. If the
Rule was not applied, it was only because it was adopted after that case
had arisen. Otherwise, as we said there, this procedure "best
recommends itself specially considering that the Statement of Votes is
a vital component in the electoral process."
Indeed, since the Statement of Votes forms the basis of the Certificate
of Canvass and of the proclamation, any error in the statement ultimately
affects the validity of the proclamation. It begs the question, therefore,
to say that this is not a pre-proclamation controversy and the procedure
for pre-proclamation controversies cannot be applied to the correction in
the computation of the totals in the Statement of Votes.
It should be pointed out, in this connection, that what is involved here is
a simple problem of arithmetic. The Statement of Votes is merely a
tabulation per precinct of the votes obtained by the candidates as
reflected in the election returns. In making the correction in computation,
the MBC will be acting in an administrative capacity, under the control
and supervision of the COMELEC. Hence any question pertaining to the
proceedings of the MBC may be raised directly to the COMELEC en
banc in the exercise of its constitutional function to decide questions
affecting elections.
What has just been said also disposes of petitioner's other contention
that because his proclamation has already been made, any remedy of
the losing party is an election protest. As held in the Duremdes case: It
is DUREMDES' further submission that his proclamation could not be
declared null and void because a pre-proclamation controversy is not
proper after a proclamation has been made, the proper recourse being
an election protest. This is on the assumption, however, that there has
been a valid proclamation. Where a proclamation is null and void, the
proclamation is no proclamation at all and the proclaimed candidate's
assumption of office cannot deprive the COMELEC of the power to
declare such nullity and annul the proclamation.
WHEREFORE, the petition is DISMISSED and the Temporary
Restraining Order previously issued is hereby LIFTED.
SECTION 244. Contested composition or proceedings of the board.
When the composition or proceedings of the board of canvassers are
contested, the board of canvassers shall, within twenty-four hours, make
a ruling thereon with notice to the contestant who, if adversely affected,
may appeal the matter to the Commission within five days after the ruling
with proper notice to the board of canvassers.
After due notice and hearing, the Commission shall decide the case
within ten days from the filing thereof.
During the pendency of the case, the board of canvassers shall suspend
the canvass until the Commission orders the continuation or resumption
thereof and citing their reasons or grounds therefor.
SECTION 245. Contested election returns.
Any candidate, political party or coalition of political parties, contesting
the inclusion or exclusion in the canvass of any election returns on any
of the grounds authorized under this article or in Sections 234, 235 and
236 of Article XIX shall submit their verbal objections to the chairman of
the board of canvassers at the time the questioned returns is presented
for inclusion or exclusion, which objections shall be noted in the minutes
of the canvassing.
The board of canvassers upon receipt of any such objections shall
automatically defer the canvass of the contested returns and shall
proceed to canvass the rest of the returns which are not contested by
any party.
Within twenty-four hours from and after the presentation of a verbal
objection, the same shall be submitted in written form to the board of
canvassers. Thereafter, the board of canvassers shall take up each
contested return, consider the written objections thereto and summarily
rule thereon. Said ruling shall be made oral initially and then reduced to
writing by the board within twenty-four hours from the time the oral ruling
is made.
Any party adversely affected by an oral ruling on its/his objection shall
immediately state orally whether it/he intends to appeal said ruling. The
said intent to appeal shall be stated in the minutes of the canvassing. If
a party manifests its intent to appeal, the board of canvassers shall set
aside the return and proceed to rule on the other contested returns.
When all the contested returns have been ruled upon by it, the board of
canvassers shall suspend the canvass and shall make an appropriate
report to the Commission, copy furnished the parties.
The board of canvassers shall not proclaim any candidate as winner
unless authorized by the Commission after the latter has ruled on the
objections brought to it on appeal by the losing party and any
proclamation made in violation hereof shall be void ab initio, unless the
contested returns will not adversely affect the results of the election.
SECTION 248. Effect of filing petition to annul or to suspend the
proclamation.
The filing with the Commission of a petition to annul or to suspend the
proclamation of any candidate shall suspend the running of the period
within which to file an election protest or quo warranto
proceedings.
CHARACTERISTICS OF PRE-PROCLAMATION CONTROVERSY
SECTION 242. Commission's exclusive jurisdiction of all pre-
proclamation controversies.
The Commission shall have exclusive jurisdiction of all pre-
proclamation controversies.
It may motu proprio or upon written petition, and after due notice and
hearing, order the partial or total suspension of the proclamation of any
candidate-elect or annual partially or totally any proclamation, if one has
been made, as the evidence shall warrant in accordance with the
succeeding sections.
Section 18. Summary Disposition of Pre-proclamation
Controversies. RA 7166
All pre-proclamation controversies on election returns or certificates of
canvass shall, on the basis of the records and evidence elevated to it by
the board of canvassers, be disposed of summarily by the Commission
within seven (7) days from receipt thereof. Its decisions shall be
executory after the lapse of seven (7) days for receipts by the losing
party of the decision of the Commission.
Section 15. Pre-proclamation Cases NOT Allowed in Elections for
President Vice-President, Senator, and Member of the House of
Representatives.
For purposes of the elections for President, Vice-President, Senator and
Member of the House of Representatives,
no pre-proclamation cases shall be allowed on matters relating to the
preparation, transmission, receipt, custody and appreciation of the
election returns or the certificates of canvass, as the case may be.
However, this does not preclude the authority of the appropriate
canvassing body motu propio or upon written complaint of an interested
person to correct manifest errors in the certificate of canvass or election
returns before it.
Questions affecting the composition or proceedings of the board of
canvassers may be initiated in the board or directly with the Commission
in accordance with Section 19 hereof.
Any objection on the election returns before the city or municipal board
of canvassers, or on the municipal certificates of canvass before the
provincial board of canvassers or district boards of canvassers in Metro
Manila Area, shall be specifically noticed in the minutes of their
respective proceedings.
Section 21. Partial Proclamation. RA 7166
Notwithstanding the pendency of any pre-proclamation controversy, the
Commission may summarily order the proclamation of other winning
candidates whose election will not be affected by the outcome of the
controversy.
CASES:
UTUTALUM v COMELEC [G.R. Nos. 84843-44. January 22, 1990.]
FACTS: 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 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.
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". 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" 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 1987, 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. 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.
Said Resolution was affirmed by this Court in Anni vs. COMELEC, G.R.
No. 81398, 26 January 1988. A new Registry List was subsequently
prepared yielding only 12,555 names.
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.
12. On 19 April 1988, in a consolidated Per Curiam Resolution, the
COMELEC 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. 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;
It is our considered view, however, that given the factual setting, it
cannot 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,
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:
"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."
"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
in a particular election.
Moreover, the preparation of a voter's list is not a proceeding before the
Board of Canvassers. A pre-proclamation controversy is limited to
challenges directed against the Board of Canvassers, not the
Board of Election Inspectors (Sanchez vs. COMELEC, ante), and
such challenges should relate to specified election returns against which
petitioner should have made specific verbal objections (Sec. 245,
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.
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.
"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 before the proper forum.
Recourse to such remedy would settle the matter in controversy
conclusively and once and for all."
WHEREFORE, this Petition for Certiorari is hereby DISMISSED and
the assailed Resolutions are AFFIRMED. No costs.
CHAPTER 11
AFTER ELECTIONS
ELECTION CONTESTS
SECTION 249. Jurisdiction of the Commission.
The Commission shall be the sole judge of all contests relating
to the elections, returns, and qualifications of all Members of
the Batasang Pambansa, elective regional, provincial and city
officials. (Art. XII-C, Sec. 2(b), Const.; Art. XIV, Sec. 58, BP
697)
SECTION 250. Election contests for Batasang Pambansa,
regional, provincial and city offices.
A sworn petition contesting the election of any Member of
the Batasang Pambansa or any regional, provincial or city
official shall be filed with the Commission by any candidate who
has duly filed a certificate of candidacy and has been voted for
the same office, within ten days after the proclamation of the
results of the election. (Art. XIV, Sec. 59, BP 697)
SECTION 251. Election contests for municipal offices.
A sworn petition contesting the election of a municipal officer
shall be filed with the proper regional trial court by any candidate
who has duly filed a certificate of candidacy and has been voted
for the same office, within ten days after proclamation of the
results of the election. (Art. XVIII, Sec. 190, 1978 EC)
SECTION 252. Election contest for barangay offices.
A sworn petition contesting the election of a barangay officer
shall be filed with the proper municipal or metropolitan trial court
by any candidate who has duly filed a certificate of candidacy
and has been voted for the same office, within ten days after the
proclamation of the results of the election. The trial court shall
decide the election protest within fifteen days after the filing
thereof. The decision of the municipal or metropolitan trial court
may be appealed within ten days from receipt of a copy thereof
by the aggrieved party to the regional trial court which shall
decide the case within thirty days from its submission, and
whose decisions shall be final. (Art. XVIII, Sec.191, 1978 EC;
Sec. 20, BP 222)
JURISDICTION OVER ELECTION CONTESTS
POSITION ORIGINAL & EXCLUSIVE
PRES & VP SUPREME COURT
SENATOR SENATE ELECTORAL
TRIBUNAL
REPRESENTATIVE HOUSE OF
REPRESENTATIVES
ELECTORAL TRIBUNAL
REGIONAL, PROVINCIAL, COMELEC
AND CITY OFFICES
MUNICIPAL OFFICE RTC
BARANGAY OFFICE MTC
 DECISION APPELLATE
RTC in Municipal Decision COMELEC
Decisions of COMELEC SUPREME COURT
Decisions of Senate/HRET SUPREME COURT
*Senate Electoral Tribunal and HRET acquires jurisdiction when
one is proclaimed and has assumed his duties
REQUISITES OF AN ELECTION PROTEST:
1. Filed by any candidate who has duly filed a certificate of
candidacy and has been voted for the same office
2. On grounds of fraud, terrorism, irregularities or illegal acts
committed before, during or after the casting and counting of
votes
3. Filed within ten days after the proclamation of the results of
the election
4. Payment of docket fee
CASES:
1. TAN v. COMELEC
[G.R. Nos. 148575-76. December 10, 2003.]
ABDUSAKUR M. TAN, ABDULWAHID SAHIDULLA,
ABRAHAM
BURAHAN, petitioners, vs. COMMISSION ON ELECTIONS,
YUSOP H. JIKIRI, ABDEL S. ANNI, DEN RASHER I. SALIM,
TALIB L. HAYUDINI, RIZAL TINGKAHAN, BARLIE
NAHUDAN, ABRAHAM DAUD, LUKMAN OMAR, ONNIH
AHMAD and BASARON M. BURAHAN, respondents.
[G.R. Nos. 152882-83. December 10, 2003.]
YUSOP JIKIRI, ABDEL ANNI, ABRAHAM DAUD, LUKMAN
OMAR, ONNIH AHMAD, BASARON BURAHAN, DEN
RASHER SALIM, TALIB HAYUDINI, RIZAL TINGKAHAN, and
BARLIE
NAHUDAN, petitioners, vs. COMMISSION ON ELECTIONS,
ABDUSAKUR TAN, ABDULWAHID SAHIDULLA, MUNIB
ESTINO and ABRAHAM BURAHAN, respondents.
SYNOPSIS
Respondents filed before the COMELEC petitions for
declaration of failure of election in all the precincts in the
Municipality of Luuk, Sulu and the Municipalities of Parang and
Indanan, Sulu, docketed as SPA No. 01-257 and SPA No. 01-
265. Subsequently, they amended the petitions impleading
petitioners who were the winning candidates.
On the issue of whether the COMELEC En Banc has jurisdiction
to take cognizance of the amended petitions, the Court ruled in
the negative. There was no failure of elections when elections
had been conducted and winners had been already proclaimed.
The proper recourse of the respondents should have been to file
regular election protest cases to ventilate the veracity of the
alleged election fraud and irregularities of the election in the
subject precincts with the consequent determination and
declaration of the real winners in the election.
Anent the validity of the Order of the COMELEC where it
recalled the annulment of the proclamation of petitioners as
winning candidates, the Court ruled that respondents failed to
show grave abuse of discretion on the part of the COMELEC.
SYLLABUS
1. POLITICAL LAW; COMMISSION ON ELECTIONS;
JURISDICTION; ELECTION PROTEST CASES. The
amended petitions filed by the respondents herein are election
protest cases over which the public respondent has original
exclusive jurisdiction under Section 2(2), Article IX of the
Constitution. The public respondent assumed jurisdiction over
the amended petitions in the exercise of its quasi-judicial
powers. Section 4, Rep. Act No. 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 elections as provided in Section
6 of the Omnibus Election Code.
2. ID.; ID.; ID.; DETERMINED BY LAW AND THE
ALLEGATIONS IN THE PETITIONS. The long-standing rule
is that the nature of an action and the jurisdiction of the tribunal
are determined by law and the allegations in the petitions
regardless of whether or not the petitioners are entitled to the
relief sought. The caption of the petitions are not
determinative of the nature thereof. In their amended petitions
before the public respondent, the respondents herein
Abdusakur Tan, et al., the petitioners therein, substantially
alleged that the respondents therein who are the petitioners in
this case were the duly proclaimed winning candidates; that the
elections in the Municipalities of Luuk, Parang and Indanan,
Province of Sulu, were marred by massive
substitution of voters, fraud, terrorism and other anomalies,
impelling them to file their petitions (for
declaration of failure of election) pursuant to Section
4 of Rep. Act No. 7166 in relation to Section 6, Omnibus
Election Code, and reiterated in Section 2, Rule 26 of the 1993
COMELEC Rules ofProcedure, as amended.
3. ID.; ELECTION LAWS; OMNIBUS ELECTION CODE;
FAILURE OF ELECTION; WHEN MAY BE DECLARED.
Section 6 of the Omnibus Election Code lays 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 force majeure, violence,
terrorism, fraud or other analogous causes; or (3) after the voting
and during the preparation and transmission of the election
returns or in the custody or canvass thereof, such election
results in a failure to elect on account of force majeure, violence,
terrorism, fraud or other analogous causes. In all instances
there must have been 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
preparation and the transmission of the election returns, which
give rise to the consequence of failure to elect, must as
aforesaid be literally interpreted to mean that "nobody emerged
as a winner. "Hence, before the COMELEC can act on a verified
petition seeking to declare a failure of elections, 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. 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.
4. ID.; ID.; PROCLAMATION OF PETITIONERS AS WINNING
CANDIDATES; REGULARITY NOT AFFECTED BY
ALLEGATIONS WHICH CONSTITUTED GROUNDS FOR
DECLARATION OF FAILURE OF ELECTION. The
proclamation of the petitioners enjoys the
presumption of regularity and validity. To destroy the
presumption, the respondents must convincingly show that the
petitioners' victory was procured through extra-legal means.
This they tried to do by alleging matters in their petitions which
they believed constituted grounds
for a declaration of failure of election, such as massive
substitution of voters, fraud, terrorism,
disenfranchisement of voters, and other anomalies. The
attendance of the alleged fraud and irregularities in the elections
as catalogued by the respondents, however, constitute merely
the causes or events which may give rise to the grounds to
declare failure of elections, namely, (a) no election held on the
designated election date; (b) suspension of election before the
hour fixed by law for the closing of voting; and (c) election in any
polling place resulted in a failure to elect. But as aforesaid, the
grounds cited by the respondents do not fall under any of the
instances under Section 6 of Rep. Act No. 7166, the winning
candidates having been proclaimed by the PBC. While fraud
is a ground to declare a failure of election, the
commission of fraud must be such that it prevented or
suspended the holding of an election, including the preparation
and transmission of the election returns.
5. ID.; ID.; FAILURE OF ELECTION PROPER DESPITE
PROCLAMATION OF WINNING CANDIDATES IN THE
CASE OF SOLIVA V. COMELEC, NOT APPLICABLE.
Reliance by the respondents of the ruling of this Court
in Soliva v. COMELEC is misplaced. In that case, the Court
ruled that the petition to declare a failure of election fled with the
public respondent was proper despite the proclamation of the
winning candidates because the grounds alleged in the petitions
and proved during trial were that the counting of the votes and
the canvassing of the election returns were attended by fraud,
intimidation, terrors and harassment. In this case, there was no
allegation of fraud, terror, intimidation and harassment in the
counting of votes and the canvassing of election returns.
6. ID.; ID.; TECHNICAL EXAMINATION OF VOTERS
REGISTRATION RECORDS PROPER ONLY IN ACTION FOR
ANNULMENT OF ELECTION OR
DECLARATION OF FAILURE OF ELECTIONS In Loong v.
COMELEC, we held that "the COMELEC is duty-bound to
investigate allegations of fraud, terrorism, violence and other
analogous causes in actions for annulment of election results or
for declaration of failure of elections, as the Omnibus Election
Code denominates the same. Thus, the public respondent, in
the case of actions for annulment of election results or
declaration of failure ofelections, may conduct a technical
examination of election documents and compare and analyze
voters' signatures and fingerprints in order to determine whether
or not the elections had indeed been free, honest and clean."
However, the exercise of this authority presupposes that the
petition has properly been acted upon on account of the
existence of any of the grounds provided under Section 6 of the
Omnibus Election Code. Where, as in this case, elections had
been held and winners had been duly proclaimed, the proper
recourse of the respondents should have been to file regular
election protest cases to ventilate the veracity of the alleged
election fraud and irregularities of the election in the subject
precincts with the consequent determination and
declaration of the real winners in the elections.
7. ID.; ID.; SUSPENSION OR
ANNULMENT OF PROCLAMATION OF WINNING
CANDIDATES; WHEN PROPER. The public respondent may
suspend or annul a proclamation only in three instances,
including pre-proclamation controversies, but not in a petition
for a declaration of failure of an election. As held by us
in Dagloc v. COMELEC, thus: The filing of pre-proclamation
controversies under Section 248 of the Omnibus Election Code,
however, is not the only ground for the
suspension of proclamation. Two other instances are provided
in R.A. No. 6646, known as "The Electoral Reforms
Law of 1987," viz.: (1) Under Section 6 of the statute, the
COMELEC may, upon motion of the complainant in an action for
disqualification, suspend the proclamation of the winning
candidate if the evidence of his guilt is strong, and (2) under
Section 7 thereof, the COMELEC may likewise suspend the
proclamation of the winning candidate if there is ground for
denying or canceling his certificate of candidacy.
8. ID.; ID.; ID.; DISCRETIONARY TO THE COMELEC. The
OSG agreed that the public respondent is vested with authority
to suspend the proclamation of the winning candidates or to
annul such proclamation but contend that the public respondent
may in the exercise of its discretion allow such proclamation or
set aside its order annulling the proclamation of the winning
candidates, ratiocinating that: . . . While we agree with the
petitioner that the COMELEC can suspend the proclamation
pending the resolution of the petition to
declare a failure of election, the same order, however, is merely
provisional in nature and can be lifted when the evidence so
warrants. In Nolasco v. COMELEC, 275 SCRA 762 [1997], it is
said to be akin to atemporary restraining order which a court can
issue ex parte under exigent circumstances. We agree with the
OSG. The respondents failed to show that the public respondent
committed a grave abuse of its discretion amounting to excess
lack of jurisdiction in issuing its June 28, 2001 Order.
FACTS:
Before us are two consolidated petitions filed under Rule
65 of the Rules of Court, as amended, assailing the
Orders of the Commission on Elections En Banc dated June
28, 2001, October 3, 2001 and April 17, 2002 in SPA No. 01-
257 and SPA No. 01-265 for having been issued with grave
abuse of discretion amounting to lack or excess of jurisdiction.
In the May 14, 2001 elections, Abdusakur Tan and Abdulwahid
Sahidulla were candidates for Governor and Vice-Governor,
respectively, while Munib Estino and Abraham Burahan were
candidates for Congressman of the Second and First
District of Sulu, respectively. The other candidates for Governor
and Vice-Governor were Yusop Jikiri and Abdel Anni. The
candidates for the position of members of the Sangguniang
Panlalawigan of the First District ofSulu were Den Rasher
Salim, Talib Hayudini, Rizal Tingkahan and Barlie Nahudan,
while those for the Second District were Abraham Daud,
Lukman Omar, Onnih Ahmad and Basaron Burahan.
On May 17, 2001, Abdusakur Tan, Abdulwahid Sahidulla and
Abraham Burahan (Abdusakur Tan, et al. for brevity) filed with
the COMELEC (public respondent) a petition to "declare
failure of elections in all the precincts in the
Municipality of Luuk," Province of Sulu, which was docketed as
SPA No. 01-257. 1 The petitioners prayed that:
WHEREFORE, premises considered, it is respectfully prayed
that the Honorable
Commission DECLARE a FAILURE of ELECTIONS in all the
precincts in the Municipality of Luuk, Sulu where no voting was
actually held, as the registered voters never did their votes.
The petitioners further pray that pending final resolution of this
petition that an order be immediately issued directing the
Municipal Board ofCanvassers of Luuk, Sulu as well as the
Provincial Board of Canvassers of Sulu to suspend and desist
from continuing with, the CANVASSING of the election
returns and/or certificate of canvass.
Other relief consistent with law, justice and equity are also
prayed for. 2
The following day, the petitioners filed a petition to declare
failure of elections and/or to annul the elections or the
election results in the Municipalities of Parang and Indanan,
Province of Sulu, which was docketed as SPA No. 01-
265. 3 The petitioners prayed that:
WHEREFORE, petitioners respectfully pray that this petition be
granted and that an Order be issued:
1. Annulling and setting aside the elections and/or the election
results in the May 14, 2001 elections in the
municipalities of Indanan and Parang, Sulu, and
declaring a failure of elections therein;
2. Suspending the canvassing and the proclamation of any
and all alleged "winning" candidates in the
municipalities of Indanan and Parang, Sulu;
3. Calling for immediate special elections in the aforesaid areas
where failure of elections transpired;
4. Such other reliefs as may be just and equitable are likewise
prayed. 4
No respondents were impleaded in both petitions. The public
respondent took cognizance of and assumed jurisdiction over
the petitions.
On May 19, 2001, the petitioners therein filed "an urgent
reiterating motion to suspend proclamation." 5 Acting on the
said motion, the public respondent issued an order suspending
the proclamation of the winning candidates, viz.:
Acting on the Petition filed on May 17, 2001 in the above-
captioned case, including the reiterating motion of May 19,
2001, and finding the same to be sufficient to warrant the
issuance of a preliminary summary action, so as not to render
academic, the petition in the above case, let there be issued to
the Provincial Board of Canvassers of Sulu an Order/directive
for the suspension of proclamation of the winning candidates
for all elective provincial positions, until further order/s from this
Commission. 6
However, the Provincial Board of Canvassers (PBC) was not
served with a copy of the order of the public respondent.
On May 23, 2001, Yusop Jikiri, Abdel Anni, Abraham Daud,
Lukman Omar, Onnih Ahmad, Basaron Burahan, Den Rasher
Salim, Talib Hayudini, Rizal Tingkahan and Barlie Nahudan
were proclaimed as the winning candidates for Governor,
Vice-Governor and Board Members. 7
On May 30, 2001, the petitioners therein filed their Amended
Petitions in SPA Nos. 01-257 8 and 01-265 9 impleading for the
first time the winning candidates, Yusop Jikiri, et al., as party
respondents. The petitioners in SPA No. 01-257 prayed that:
WHEREFORE, premises considered, it is respectfully prayed
that the Honorable Commission
DECLARE a FAILURE OF ELECTION in all the precincts in the
Municipality of Luuk, Sulu where no voting was actually held as
the registered voters never did cast their votes. aHIEcS
Petitioners further pray that pending final resolution of this
petition that an order be immediately issued directing the
Municipal Board of Canvassersof Luuk, Sulu as well as the
Provincial Board of Canvassers of Sulu to suspend, and desist
from continuing with, the CANVASSING of the election returns
and/or certificate of canvass.
Other relief consistent with law, justice, and equity are also
prayed for. 10
The petitioners in SPA No. 01-265 prayed that:
WHEREFORE, petitioners respectfully pray that this petition be
granted and that an Order be issued:
1. Annulling and setting aside the elections and/or the election
results in the May 14, 2001 elections in the
municipalities of Indanan and Parang, Sulu and
declaring a failure of elections therein;
2. Calling for immediate special elections in the aforesaid areas
where failure of election transpired.
3. Such other reliefs as may be just and equitable are likewise
prayed. 11
On June 11 and 18, 2001, the respondents filed their respective
answers to the aforesaid amended petitions questioning in the
main the jurisdiction of the COMELEC En Banc to act on the
said amended petitions and the propriety of the recourse of the
petitioners in view of their valid, lawful and existing proclamation
as the winners. 12 The petitioners in turn filed an urgent motion
to annul the proclamation of the respondents as the winners.
The respondents opposed the motion, contending that such
motion was appropriate only in pre-proclamation controversies.
On June 20, 2001, the COMELEC En Banc issued an order
annulling the May 23, 2001 proclamation of the
respondents on its finding that the proclamation by the
PBC of the winning candidates was a defiance of its
Order of May 19, 2001. The public respondent forthwith set the
amended petitions for hearing. 13 In the meantime, the
respondents filed a motion for the recall of the June 20, 2001
Order of the COMELEC on the ground that the petitions before
it were merely petitions to declare a failure of election and do
not involve a pre-proclamation controversy. However, the
COMELEC failed to immediately resolve the pending incidents.
In the meantime, the petitioners pre-marked their evidence. The
respondents reserved the right to pre-mark their evidence
before the Clerk of Court of the COMELEC without prejudice to
the resolution of the pending motions.
On June 28, 2001, after due hearing, the COMELEC issued an
order recalling and setting aside its June 20, 2001 Order, and
affirming the May 23, 2001 proclamation of the respondents.
The order states inter alia that:
After due consideration and there being no valid pre-
proclamation issues pending before the Commission involving
the elective provincial officials of the Province of Sulu, and
considering further our ruling in SPA 01-323 and SPA 01-244
involving the elective provincial officials of the Province of
Maguindanao, the Commission RESOLVES, as it is hereby
RESOLVED, to recall its June 20, 2001 Order annulling the
proclamation of the elective provincial officials of the
Province of Sulu.
The defiance by the PBC of the order of suspension of the
Commission, though a valid concern, cannot and should not
deter the proclamation of the provincial officials of Sulu after the
result of the provincial canvassing showed that they were the
winning candidates.
WHEREFORE, premises considered, the June 20, 2001
Order of this Commission is hereby recalled and set aside and
the proclamation of the private respondents on May 23, 2001 is
hereby AFFIRMED.
This ORDER is without prejudice to the administrative case
referred by the Commission to the Law Department against the
PBC of Sulu. This ORDER is likewise without prejudice to a full
resolution of the main petition to declare failure of elections in
the municipalities of Luuk, Indanan and Parang. 14
Aggrieved, the petitioners filed on July 11, 2001 with this
Court a petition for certiorari, prohibition
and mandamus docketed as G.R. Nos. 148575-76 with prayer
for the issuance of a writ of injunction and/or temporary
restraining order and/or status quo ante order, assailing the
aforequoted June 28, 2001 Order of the public respondent; and
submitting for the Court's resolution the following threshold
issue:
The threshold issue in this petition is the
determination of whether the Comelec has the power to issue
an order suspending proclamation as a preliminary relief
in a petition for declaration of failure of election and/or
annulment of election results.
Corollary thereto, did respondent Comelec gravely abuse its
discretion when it issued its June 28, 2001 Questioned
Order recalling, and effectively reconsidering, the
suspension of proclamation it had previously promulgated? 15
In the meantime, acting on a series of motions filed by the
petitioners, the COMELEC issued an Order dated October 3,
2001 directing the technical examination of the voters
registration records in the Municipalities of Parang, Indanan and
Luuk, thus:
1. To direct the Election Officers of the Municipalities of Luuk,
Indanan and Parang, Sulu to produce before the Commission
the pertinent VOTERS REGISTRATION RECORDS showing
the thumbmarks and signatures of voters affixed during their
registration and during the voting in the May 14, 2001 elections
(CE Form No. 1) within ten (10) days from receipt hereof, to be
deposited at the Election Records and Statistics Department;
2. To require petitioner to defray the expenses for the
transportation to the main office of said election documents; and
to advance to the Election Officers concerned the necessary
amount for said transportation of documents;
3. Parties are entitled to watchers during the transport of these
documents at their own expense until duly received by the
Election Records and Statistics Department, this Commission.
4. To direct the Voters Identification Division to conduct
technical examination of said documents and to make a report
thereon to the Commission En Banc within fifteen (15) days;
5. Let the Deputy Executive Director for Operations implement
this Order.
Furnish copy of this Order to the Election Records and Statistics
Department, this Commission. 16
On October 12, 2001, the respondents filed with the COMELEC
an omnibus motion to resolve the issue of jurisdiction
with a prayer to recall and/or suspend implementation of the
Order dated October 3, 2001." 17
The respondents contended that based on the documentary
evidence, there was no failure of election; the proper
remedy of the petitioners was for them to file election
protest cases and not petitions to
declare a failure of election in view of their valid, lawful and
existing proclamation as the winning candidates confirmed
no less by the COMELEC. The respondents alleged that the
petitions before it being regular election protest cases disguised
as petitions to declare a failure of election should be heard
by a division of the COMELEC and not by the COMELEC En
Banc as provided for in Section 3, Article IX-C of the
Constitution. The respondents, likewise, argued that to direct the
technical examination of voluminous documents would be
repugnant to the summary nature of the cases before it and
violative of Section 6, Rule 26 of the COMELEC
Rules of Procedure which states that a petition for
declaration of failure of elections is summary.
On April 17, 2002, the COMELEC issued an order declaring that
it had jurisdiction over the amended petitions conformably with
Section 4 of Republic Act No. 7166; and denying the omnibus
motion of the respondents, thus:
WHEREFORE, premises considered, the Omnibus Motion and
the Motion to Suspend the Implementation of the October 3,
2001 Order of the Commission en banc is DENIED for
lack of merit. aCHDAE
The Commission en banc orders the Voters Identification
Division to continue the technical examination of the Voters
Registration Records of Luuk, Parang and Indanan, Sulu as
authorized in the October 3, 2001 en banc Order. 18
The COMELEC ruled that based on the allegations of the
amended petitions, there was no valid and legitimate elections
held or conducted in the three municipalities. It, likewise, ruled
that it had the authority to order a technical examination of the
VRR's in a petition to declare a failure of election citing the
ruling of this Court
in Loong v. Commission on Elections. 19 Hence, on April 29,
2002, the respondents therein filed with this Court a petition for
certiorari docketed as G.R. Nos. 15288283 with prayer for the
issuance of a temporary restraining order and/or
writ of preliminary injunction, praying for the nullification of the
public respondent's Orders dated October 3, 2001 and April 17,
2002 and for the dismissal of SPA Nos. 01-257 and 01-265 for
lack of jurisdiction. They argued that:
(a) ON JUNE 28, 2001, THE COMELEC ITSELF AFFIRMED
THE MAY 23, 2001 PROCLAMATION OF THE PETITIONERS
AS THE DULY ELECTED PROVINCIAL ELECTIVE
OFFICIALS OF THE PROVINCE OF SULU IN THE MAY 14,
2001 ELECTIONS. THEREFORE, IT IS A VALID AND
EXISTING PROCLAMATION. SUCH PROCLAMATION
PRESUPPOSES THAT AN ELECTION HAS BEEN
CONDUCTED. THUS, ANY ALLEGED IRREGULARITIES IN
THE POLLS ARE MATTERS OF ELECTION PROTEST.
(b) PETITIONERS HAVE ALREADY ASSUMED AND ARE
ALREADY EXERCISING THEIR DUTIES AND FUNCTIONS
AS ELECTIVE PROVINCIAL OFFICIALS SINCE JUNE 30,
2001. HENCE, THE REMEDY OF THE LOSING CANDIDATES
IS AN ELECTION PROTEST.
(c) ONCE PROCLAMATION IS MADE, THE
PROPRIETY OF FAILURE OF ELECTION ENDS AND THE
REALM OF ELECTION PROTEST BEGINS. THIS IS SO
BECAUSE THE DIVIDING LINE BETWEEN PETITION TO
DECLARE FAILURE OF ELECTION AND ELECTION
PROTEST IS PROCLAMATION. AND HERE, THE
PROCLAMATION IS VALID. IT WAS AFFIRMED BY THE
COMELEC EN BANC AFTER A HEARING WHERE ALL THE
PARTIES WERE GIVEN THE OPPORTUNITY TO BE HEARD.
(d) THERE BEING VALID AND EXISTING PROCLAMATION
AND SUCH PROCLAMATION HAVING BEEN AFFIRMED,
THERE WAS NO FAILURE OFELECTION AS WINNERS HAD
EMERGED. IN TYPOCO V. COMELEC, 319 SCRA 498
and BORJA V. COMELEC, 260 SCRA 604, IT WAS HELD
THAT FAILURE OF ELECTION SHOULD LITERALLY MEAN
"THAT NOBODY EMERGED AS A WINNER." IN THE
INSTANT CASE, WINNERS HAD EMERGED IN VIEW OF THE
VALID AND EXISTING PROCLAMATION OF THE
PETITIONERS, AFFIRMED BY THE COMELEC ITSELF.
HENCE, THERE WAS NO FAILURE OF ELECTION. THE
REMEDYOF PRIVATE RESPONDENTS IS AN ELECTION
PROTEST.
(e) THE QUESTIONED ORDER WOULD EVEN ALLOW THE
PIERCING OF THE VEIL OF ELECTION RETURNS SINCE
TECHNICAL EXAMINATION OFELECTION DOCUMENTS
COULD BE ALLOWED IN ALL KINDS OF PETITIONS WHICH
COULD NOW BE DISGUISED AS ONE FOR
FAILURE OF ELECTION. 20
On March 4, 2003, the Court granted the motion of the
petitioners in G.R. Nos. 15288283 for the
issuance of a temporary restraining order directing the
COMELEC to cease and desist from implementing its
questioned Orders dated October 3, 2001 and April 17, 2002
and from further proceeding thereon.
On April 29, 2003, the Court ordered the consolidation of G.R.
Nos. 148575-76 and G.R. Nos. 152882-83 since both petitions
arose from a common set of facts and raised similar issues.
For convenience, the Court shall delve into and resolve the
issues in both petitions simultaneously and will refer to Yusop
Jikiri, Abdel Anni, Abraham Daud, Lukman Omar, Onnih Ahmad,
Basaron Burahan, Den Rasher Salim, Talib Hayudini, Rizal
Tingkahan, and Barlie Nahudan as the petitioners; and,
Abdusakur M. Tan, Abdulwahid Sahidulla, and Abraham
Burahan as the respondents, without reference to the docket
numbers of the petitions respectively filed in this Court.
ISSUE:
The threshold issues for resolution are (1) whether the
COMELEC En Banc, now public respondent, is vested with
jurisdiction to take cognizance of and resolve the amended
petitions before it; (2) whether the public respondent acted with
grave abuse of its discretion amounting to excess or lack of
jurisdiction in issuing its Orders dated June 28, 2001, October
3, 2001, and April 17, 2002.
On the first issue, the petitioners aver that the respondents were
proscribed from filing their amended petition
for a declaration of failure of elections and/or for the
annulment of elections under Section 6, Republic Act No.
7166 for the reason that the petitioners had already been
proclaimed the winning candidates.
They contend that a petition for
declaration of failure of elections or for the
annulment of an election can no longer be filed and
prosecuted after the winning candidates had already been
proclaimed by the PBC. They aver that the proper
recourse of the respondents was to file election protest cases
against the petitioners as the winning candidates. The
petitioners also assert that the proceedings in an election protest
are not summary in nature and should be ventilated in a full-
blown hearing. The petitioners argue that the amended
petitions of the respondents are election protest cases over
which the COMELEC assumes jurisdiction in the exercise of its
quasi-judicial powers and should be referred for hearing and
resolution to a Division of the COMELEC as mandated by
Section 3, Article IX-C of the Constitution and Section 250 of the
Omnibus Election Code.
The respondents, for their part, aver that the public respondent
took cognizance of the amended petitions under Section 4,
Rep. Act No. 7166 in its administrative capacity and not
as a quasi-judicial body. They also contend that the
acts/omissions alleged in the amended petitions are proper
subjects for a petition for a declaration of a failure of election or
for the annulment of the elections. They assert that in a petition
for a declaration of failure of election, the public respondent
does not exercise quasi-judicial functions because it does not
adjudicate any conflicting or adverse claims of the contending
parties as there are no rights to speak of under which adverse
claims to such rights are made. They argue that in taking
cognizance of the amended petitions, the public respondent
was merely performing its duties as an administrative body
tasked to ensure clean, honest, orderly and peaceful elections.
The said respondents cited the ruling of the Court
in Loong v. COMELEC. 21
The Office of the Solicitor General (OSG) is of the view
that a petition to declare a failure of election may be maintained
even when a winner had already been proclaimed. The OSG
cited the ruling of this Court in Soliva v. COMELEC. 22 The
public respondent is mandated in the exercise of its
administrative powers under Section 2(3), Article IX of the
Constitution, to investigate allegations of fraud, terrorism,
violence and other analogous causes of actions for
annulment of election results or
declaration of a failure of election as the Omnibus Election
Code denominates. It also submits that the public respondent is
mandated to conduct an investigation as to the veracity of the
allegations of the respondents of fraud, terrorism, harassment
and intimidation to ensure the conduct of free and impartial
elections.
HELD:
We agree with the petitioners.
The amended petitions filed by the respondents herein are
election protest cases over which the public respondent has
original exclusive jurisdiction under Section 2(2), Article
IX of the Constitution. The public respondent assumed
jurisdiction over the amended petitions in the exercise of its
quasi-judicial powers. 23 Section 4, 24 Rep. Act No.
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
elections as provided in Section 6 of the Omnibus Election
Code. Said Section 6, in turn, provides that: CSEHcT
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 election returns or in the
custody or canvass thereof, such election results in a failure to
elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the
Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the
holding or continuation of the election not held, suspended or
which resulted in a failure to elect on a date reasonably close to
the date of the election not held, suspended or which resulted
in a failure to elect but not later than thirty days after the
cessation of the cause of such postponement
suspension of the election or failure to elect.
The long-standing rule is that the nature of an action and the
jurisdiction of the tribunal are determined by law and the
allegations in the petitions regardless of whether or not the
petitioners are entitled to the relief sought. 25 The caption of the
petitions are not determinative of the nature thereof. In their
amended petitions before the public respondent, the
respondents herein Abdusakur Tan, et al., the petitioners
therein, substantially alleged that the respondents therein who
are the petitioners in this case were the duly proclaimed winning
candidates; that the elections in the Municipalities of Luuk,
Parang and Indanan, Province of Sulu, were marred by massive
substitution of voters, fraud, terrorism and other anomalies,
impelling them to file their petitions pursuant to Section
4 of Rep. Act No. 7166 in relation to Section 6, Omnibus
Election Code, and reiterated in Section 2, Rule 26 26 of the
1993 COMELEC Rules of Procedure, as amended. But Section
6 of the Omnibus Election Code lays 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 force majeure, violence, terrorism, fraud or
other analogous causes; or (3) 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 cases. 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 preparation and the
transmission of the election returns, which give rise to the
consequence of failure to elect, must as aforesaid be literally
interpreted to mean that "nobody emerged as a winner." 27
Hence, before the COMELEC can act on a verified petition
seeking to declare a failure of elections, 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. 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. 28
In these cases, elections were held in the questioned
municipalities. In fact, the very reason why the
respondents filed their amended petitions before the COMELEC
on May 30, 2001 was to implead the petitioners as the
respondents therein who had been proclaimed as the winning
candidates; hence, were indispensable parties to the petitions.
In resolving the amended petitions, the public respondent will
have to rule on the validity of the proclamation of the petitioners
and their right to hold office and perform the duties appurtenant
thereto. The alleged fraud and irregularities, granting
arguendo that they indeed marred the elections, did not prevent
or suspend the holding of the elections in the aforementioned
municipalities including the preparation and transmission of the
election returns. Indeed, these returns were duly canvassed by
the respective municipal boards of canvassers which prepared
the corresponding certificates of canvass which were in turn
canvassed by the Provincial Board of Canvassers of Sulu
or
which, after such canvass, proclaimed the petitioners herein as
the winning candidates in the May 14, 2001 elections. In fine,
elections had been conducted and winners had been already
proclaimed. Even the public respondent, no less, through the
Office of the Solicitor General, stated in its comment on the
petition in G.R. Nos. 148575-76 that the amended
petitions of the respondents did not state a valid cause of action
for a declaration of a failure of election and were
prematurely filed in this Court:
. . . After all the grounds relied upon by the petitioners in their
petitions to declare a failure of election, to wit: (1) voters were
driven away through force and intimidation; (2) persons other
than registered voters filled up the official ballots; (3) flying
voters were transported; (4) voters were allowed to vote more
than once; (5) watchers of the petitioners were not allowed to
exercise their rights and perform their duties; do not seem to
clearly sustain a declaration of a failure of election. It has been
consistently held that there are only three (3) 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 had been
suspended before the hour fixed by law for the closing of the
voting on account of force majeure, violence, terrorism, fraud or
other analogous causes; (c) after the voting and during the
preparation and transmission of the election returns or on 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 (Typoco, Jr. vs. COMELEC, 319 SCRA
498 [1999]).
In their two petitions, petitioners made no specific allegation as
to the presence of any of the three above-mentioned
circumstances. They merely enumerated the various
acts of alleged terrorism and fraud. There was no allegation that
due to said acts of terrorism and fraud no election was actually
held or that there was suspension of election or even if there
was election held, nobody emerged as a winner. On the
contrary, it is apparent that there was an actual election. What
petitioners are saying is that it was not a valid and legitimate
elections. The issue is still pending determination of the
COMELEC and the present petition before this Honorable Court
is therefore premature. This Court has made a pronouncement
in Bagatsing v.COMELEC, 320 SCRA 817 [1999] that it does
not look with favor on the practice of seeking remedy from the
Supreme Court without waiting for the resolution of the pending
action before the tribunal below, absent extraordinary
circumstances warranting appropriate action by this Court. 29
Moreover, the proclamation of the petitioners enjoys the
presumption of regularity and validity. 30 To destroy the
presumption, the respondents must convincingly show that the
petitioners' victory was procured through extra-legal means.
This they tried to do by alleging matters in their petitions which
they believed constituted grounds
for a declaration of failure of election, such as massive
substitution of voters, fraud, terrorism, disenfranchisement of
voters, and other anomalies. The attendance of the alleged
fraud and irregularities in the elections as catalogued by the
respondents, however, constitute merely the causes or events
which may give rise to the grounds to declare
failure of elections, namely, (a) no election held on the
designated election date; (b) suspension of election before the
hour fixed by law for the closing of voting; and (c) election in any
polling place resulted in a failure to elect. But as aforesaid, the
grounds cited by the respondents do not fall under any of the
instances under Section 6 of Rep. Act No. 7166, the winning
candidates having been proclaimed by the PBC. While fraud
is a ground to declare a failure of election, the
commission of fraud must be such that it prevented or
suspended the holding of an election, including the preparation
and transmission of the election returns. 31 It behooved the
public respondent to dismiss the amended petitions:
. . . In the fairly recent case of Tomas T. Banaga,
Jr. v. Commission on Elections, et al. with a factual backdrop
similar to this case, the Court held:
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. EHSITc
Private respondent alleged in his petition with the COMELEC En
Banc that the elections ensued in the subject precincts and that
petitioner herein emerged as the winner and was in fact
proclaimed as such by the Board of Election Inspectors.
In sum then, the grounds alleged by the private respondent
in his petition before the COMELEC are those for a regular
election protest and are not proper in a pre-proclamation
controversy; nor is such petition one for annulment of the
elections or for a declaration of failure of elections in the
municipality of Saguiaran, Lanao del Sur. The COMELEC
should have ordered the dismissal of the petition
instead of issuing the assailed order. The COMELEC thus
committed a grave abuse of its discretion amounting to excess
or lack of jurisdiction in issuing the same. The error is correctible
by the special civil action for certiorari. 32
Reliance by the respondents of the ruling of this Court
in Soliva v. COMELEC 33 is misplaced. In that case, the Court
ruled that the petition to declare a failure of election filed with
the public respondent was proper despite the
proclamation of the winning candidates because the grounds
alleged in the petitions and proved during trial were that the
counting of the votes and the canvassing of the election returns
were attended by fraud, intimidation, terrors and harassment. In
this case, there was no allegation of fraud, terror, intimidation
and harassment in the counting of votes and the canvassing of
election returns.
Accordingly, the public respondent's subsequent October 3,
2001 and April 17, 2002 Resolutions allowing the technical
examination of the voters registration records for the
Municipalities of Parang, Indanan and Luuk were actions tainted
with grave abuse of discretion amounting to excess or lack
of jurisdiction correctible by a cert writ.
We are not saying that the public respondent is precluded at all
times from allowing the technical examination of the voters
registration records. In Loong v. COMELEC, we held that "the
COMELEC is duty-bound to investigate allegations of fraud,
terrorism, violence and other analogous causes in actions for
annulment of election results or for
declaration of failure of elections, as the Omnibus Election
Code denominates the same. Thus, the public respondent, in
the case of actions for annulment of election results or
declaration of failure of elections, may conduct a technical
examination of election documents and compare and analyze
voters' signatures and fingerprints in order to determine whether
or not the elections had indeed been free, honest and
clean." 34 However, the exercise of this authority presupposes
that the petition has properly been acted upon on account of the
existence of any of the grounds provided under Section 6 of the
Omnibus Election Code. Where, as in this case, elections had
been held and winners had been duly proclaimed, the proper
recourse of the respondents should have been to file regular
election protest cases to ventilate the veracity of the alleged
election fraud and irregularities of the election in the subject
precincts with the consequent determination and
declaration of the real winners in the elections. The recall by the
public respondent of its June 20, 2001 Order is justified by case
law. Thus, the public respondent may suspend or annul a
proclamation only in three instances, including pre-proclamation
controversies, but not in a petition
for a declaration of failure of an election. As held by us
in Dagloc v. COMELEC, 35 thus:
The filing of pre-proclamation controversies under 248 of the
Omnibus Election Code, however, is not the only ground for the
suspension of proclamation. Two other instances are provided
in R.A. No. 6646, known as "The Electoral Reforms
Law of 1987," viz.: (1) Under 6 of the statute, the COMELEC
may, upon motion of the complainant in an action for
disqualification, suspend the proclamation of the winning
candidate if the evidence of his guilt is strong, and (2) under 7
thereof, the COMELEC may likewise suspend the
proclamation of the winning candidate if there is ground for
denying or canceling his certificate of candidacy. . . . 36
Anent the validity of the Order of the public respondent dated
June 28, 2001, the respondents aver that the public respondent
committed a grave abuse of its discretion in recalling its order
annulling the proclamation of the petitioners as the winning
candidates. The respondents insist that the public respondent is
empowered to annul a proclamation of the winning candidates
or to suspend such proclamation. The OSG, for its part, agreed
that the public respondent is vested with authority to suspend
the proclamation of the winning candidates or to annul such
proclamation but contend that the public respondent may in the
exercise of its discretion allow such proclamation or set aside its
order annulling the proclamation of the winning candidates,
ratiocinating that:
The question now is whether the COMELEC can validly recall or
set aside an earlier order to suspend proclamation issued as
preliminary relief in a petition for declaration of failure of election
and/or annulment of election results.
While we agree with the petitioner that the COMELEC can
suspend the proclamation pending the resolution of the petition
to declare a failure of election, the same order, however, is
merely provisional in nature and can be lifted when the evidence
so warrants. In Nolasco v. COMELEC, 275 SCRA 762 [1997], it
is said to be akin to a temporary restraining order which a court
can issue ex-parte under exigent circumstances.
The petitioner would like to impress upon the court that the
COMELEC merely recalled its earlier
order of suspension of proclamation without any motion for
reconsideration. Such is not correct. During the hearing on June
28, 2001, when the parties pre-marked their respective
evidence, the respondents also raised the motion and prayer to
recall and/or lift the June 20, 2001 Order. The parties then
agreed to have the matter immediately considered by the
COMELEC in view of the proximity of the June 30, 2001
termination of the term of office of the (then) incumbent elective
officials of the Province of Sulu. 37
We agree with the OSG. The respondents failed to show that
the public respondent committed a grave abuse of its discretion
amounting to excess or lack of jurisdiction in issuing its June 28,
2001 Order.
IN LIGHT OF ALL THE FOREGOING, the petitions in G.R. Nos.
148575-76 are DISMISSED. The Order of the COMELEC dated
June 28, 2001 is AFFIRMED.
The petitions in G.R. Nos. 152882-83 are GRANTED. The
Orders of the COMELEC dated October 3, 2001 and April 17,
2002 are SET ASIDE, and the COMELEC is directed to dismiss
SPA No. 01-257 and SPA No. 01-265. No costs.
2. ARAO v. COMELEC
[G.R. No. 103877. June 23, 1992.]
BENJAMIN F. ARAO, petitioner, vs. COMMISSION ON
ELECTIONS AND WARLITO PULMONES, respondents.
4. POLITICAL LAW; ELECTION LAWS; ELECTION PROTEST;
POWER OF COMELEC TO RULE ON ISSUES NOT
SPECIFIED BY PARTY; CASE AT BAR.
The failure or omission of protestant to raise the question of
identical handwriting or of impugning the validity of the ballots
on that ground, resulting in the invalidation of 466 ballots for
petitioner, does not preclude respondent COMELEC from
rejecting them on that ground. Unlike an ordinary suit, an
election protest is of utmost public concern. The rights of the
contending parties in the position aspired for must yield to the
far greater interest of the citizens in the sanctity of the electoral
process. This being the case, the choice of the people to
represent them may not be bargained away by the sheer
negligence of a party, nor defeated by technical rules of
procedure.
Thus, COMELEC cannot just close its eyes to the illegality
of the ballots brought before it, where the ground for the
invalidation was omitted by the protestant.
As held in Yalung v. Atienza: 52 Phil. 781 (1929) ". . . Inasmuch
as it is not necessary to specify in detail in the motion of protest
in which of the ballots the frauds and irregularities were
committed, such a procedure being well-nigh impossible, and it
being enough to allege in what the fraud and irregularity
consisted, and that had it not been for such anomalies, the result
of the election would have been otherwise, all of which have
been alleged in the motion of protest in question, the court or the
commissioners appointed by the same may revise all the
ballots, admitting the valid and legal ones and rejecting the
others, with a view to arriving at the lawfully expressed will of the
electors. The institution of popular suffrage is one of public
interest and not a private interest of the candidates, so that if in
the revision of the ballots some illegal ballots are found which
have not been specifically impugned in the motion of protest, the
court may reject them motu proprio, since it is not essential that
the contestant set forth the grounds of his contest with the same
precision required of a pleading in ordinary civil cases (20
Corpus Juris, 227; emphasis supplied).
5. ID.; ID.; ID.; JURISDICTIONAL DEFECT NOT BROUGHT
IMMEDIATELY TO THE ATTENTION OF COMELEC, DEEMED
WAIVED; CASE AT BAR. Petitioner did not question this
alleged irregularity by bringing the matter to the attention of
COMELEC (First Division) immediately after the promulgation of
its Resolution. The Resolution containing the alleged
jurisdictional defect was promulgated on December 11, 1991.
However, it was not until he filed his petition on February 17,
1992, that petitioner complained for the first time. Certainly, that
Resolution having been rendered by a division of COMELEC
could have been subject of a motion for reconsideration.
Admittedly, petitioner did not take steps to have the matter
reconsidered by public respondent before coming to Us. Having
been declared winner in the Resolution of December 11, 1991,
petitioner would not ordinarily be expected to initiate a motion
for reconsideration. Nonetheless, he could have brought up his
objections in his Memorandum in opposition to the Protestant's
Motion for Reconsideration so that public respondent could have
properly ruled thereon. Consequently, petitioner may be
deemed to have waived his right to question the Resolution
when he failed to act accordingly despite the opportunity to do
so. He should not be permitted, in other words, to remain mute
and unaffected in the face of a perceived jurisdictional defect
and, worse, profit from his quiescence, only to grumble in the
end when it turns out to be prejudicial to his interest. As it has
been said, "[n]either equity nor the law relieves those who seek
aid in Court merely to avoid the effects of their own negligence .
. ." (Lipscomb v. Talbott, 243 Mo 1, 36 [1912]).
FACTS:
This petition for certiorari 1 seeks to set aside, for having
allegedly been issued with grave abuse of discretion and/or in
excess of jurisdiction, the Decision of respondent Commission
on Elections (COMELEC) in EPC No. 88-1, 2 promulgated
January 23, 1992, which reconsidered the Resolution of its First
Division of December 11, 1991, 3 finding petitioner (protestee
therein) "winner of the election protest by a margin of 378 votes
in lieu of the original lead of protestee of 417 votes over
protestant at the time of the former's proclamation by the City
Board of Canvassers of Pagadian City," and declaring instead
private respondent (protestant therein) duly elected mayor
thereof.
FACTS:
Petitioner Benjamin Arao and private respondent Warlito
Pulmones were candidates for the Office of City Mayor of
Pagadian City in the January 18, 1988, local elections. After
canvass, petitioner was shown to have garnered 12,447 votes,
while private respondent, only 12,030 votes 4 , or a margin of
417 votes in favor of petitioner. Consequently, on January 21,
1988, petitioner was proclaimed City Mayor-elect of Pagadian
City. 5
On January 28, 1988, private respondent filed his Protest with
COMELEC 6 more particularly alleging that "while fraud and
anomalies were rampant in practically all the voting centers of
Pagadian City, the violations were glaringly and notably
perpetrated in the following districts and/or precincts, to wit: (a)
[I]n all the three (3) precincts of Kawit District . . . (b) [I]n Tuburan
District . . . particularly in Precincts 77 and 80 . . . (c) (I)n
Bonifacio District, particularly Precinct 69 . . . (d) [I)n Sta. Lucia
District, particularly Precinct No. 42 . . . (e) [I)n all of the seven
(7) precincts in Sto Nio District . . . (f) [I)n San Jose District,
particularly Precinct No. 32 . . . (g) [I)n Precinct No. 33 of San
Jose District . . . (h) [I)n Precinct No. 34 of San Jose District . . .
(i) [I)n all the precincts in San Pedro District . . . (j) [I)n Precincts
19 and 22 of Gatas District . . . (k) . . . in all the precincts in
Balangasa District but more notably in Precincts 8 and 11 . . ."
On February 8, 1988, petitioner filed his Answer with
Counterprotest. 7 However, COMELEC (First Division)
dismissed the counterprotest per its Resolution of February 7,
1991, for failure to pay the required filing fee with the
reglementary period. 8
On February 15, 1988, or after the 10-day period to file an
election protest, private respondent filed an Amended Protest
enumerating therein thirteen (13) precincts which were not
previously specified: Precincts 1-A, 4, 6, 9, 17, 20, 21, 30, 31,
35, 36, 50 and 70.
On February 7, 1991, COMELEC (First Division) issued the
following Resolution: LexLib
"Apparently, the Commission taking into consideration the
comments and observations of protestee, was convinced that
the amended protest was not admissible as the record failed to
yield any formal order admitting the amended protest." 12
On December 11, 1991 COMELEC (First Division) issued a
Resolution par. 4 of which states:
"4. Protestant filed his Amended Protest on February 15, 1988,
although there is nothing on record that shows the same was
duly admitted; the record shows, however, that the Protestee
submitted his 'Comments and Observations on the Amended
Protest' in a formal document dated March 3, 1988 and received
by this Commission on April 4, 1988." 13
In holding that there was nothing on record showing that
Protestant's Amended Protest was duly admitted, public
respondent's First Division apparently overlooked its Order of
April 7, 1988, which reads:
"For consideration is the Protestee's Comments and
Observations on the Amended Protest dated March 3, 1988,
filed by Counsel for Protestee praying that the amended protest
dated February 15, 1988, filed by Protestant be denied
admission. It appearing from the records of the case that
Protestant's Amended Protest was filed in accordance with Sec.
17, Rule X of COMELEC Resolution No. 1996, the Commission
hereby denies the herein Protestee's Comments and
Observations on the Protestant's Amended Protest."
In the Resolution En Banc of this Court dated September 7,
1989, in G.R. No. 88036, where petitioner questioned the
"transfer of the questioned ballot boxes to Cagayan de Oro in
view of the serious peace and order problem in Pagadian City",
it clearly appears that the Amended Protest was in fact admitted,
thus
". . . Besides, the Order of April 7, 1988, admitting the amended
protest was questioned only on May 11, 1989, when the herein
petition was filed, or way beyond the 30-day reglementary
period prescribed in Article IX-A, Section 7, of the Constitution."
On December 11, 1991, after revision of ballots and hearing,
COMELEC (First Division) promulgated a Resolution the
dispositive portion of which reads:
"WHEREFORE . . . the Commission (First Division)
RESOLVES, as it hereby RESOLVES, to DISMISS Election
Protest Case No. 88-1 and DECLARES protestee winner of the
election protest by a margin of 378 votes in lieu of the original
lead of protestee by 417 votes over protestant at the time of the
former's proclamation by the City Board of Canvassers of
Pagadian City." 14
On December 16, 1991, private respondent filed his Motion for
Reconsideration. 15
Petitioner claims that on January 15, 1992, he filed a
Memorandum in Opposition to the Motion for Reconsideration of
private respondent 16 raising the following points:
(a) examination and appreciation of ballots should have been
confined to 31 protested precincts per original protest filed
January 28, 1988, considering that amended protest was
decreed as "not admissible" in the February 7, 1991, Resolution
of COMELEC (First Division);
(b) examination of ballots to determine identical handwritings
should be limited to Precincts 19, 22, 8 and 11 as alleged in the
original protest;
(c) it was contrary to basic rules for COMELEC to pass upon
ballots (in favor of protestee) as identical with each other when
they were not even questioned by protestant, thus depriving
protestee the right to present controverting evidence;
(d) COMELEC failed to consider its records showing that there
were 139 assisted illiterate or disabled voters, hence, to
invalidate their votes is technically a disenfranchisement and a
subversion of sovereign will;
(e) it is statistically improbable for a candidate to have utilized
332 groups (persons) to write 723 ballots (a ratio of 1 person for
2 ballots);
(f) mathematical computation of protestant in his motion for
reconsideration is erroneous and self-serving; and,
(g) COMELEC should have credited 10 more votes for protestee
as affirmed/admitted during the revision of ballots.
However, in his Comment, private respondent Pulmones denies
all these averments of petitioner, and claims that they contain
"baseless and unfounded" allegations which are precisely to be
rejected in this petition.
On January 23, 1992, COMELEC En Banc promulgated its
Decision thus
"ACCORDINGLY, the Commission En Banc hereby renders
judgment: a. GRANTING Protestant Pulmones' Motion for
Reconsideration; b. DENYING Protestee Arao's Manifestation
for the dismissal of Protestant's Motion for Reconsideration; c.
AFFIRMING the factual findings of the Commission (First
Division) relative to the examination of the contested ballots of
both Protestant and Protestee; d. DECLARING Protestant
Warlito Pulmones as the duly elected Mayor of Pagadian City in
the January 18, 1988 elections with a margin of 516 votes
against Protestee Benjamin F. Arao; and, e. ORDERING
Protestee Arao to VACATE his office and surrender the same to
Protestant Pulmones once this decision becomes final and
executory." 17
Meanwhile, on February 28, 1992, acting on the motion of
Pulmones, respondent COMELEC granted the issuance of a
writ of execution to enforce its Decision of January 23, 1992.
On March 4, 1992, petitioner filed with Us an urgent motion for
the issuance of a writ of preliminary injunction or a temporary
restraining order against the February 28, 1992, Order of public
respondent. LLphil
On March 5, 1992, this Court issued a temporary restraining
order as prayed for by petitioner, and required private
respondent to comment thereon.
ISSUE:
In his petition, Arao raises five issues which nevertheless may
simply be reduced into whether respondent COMELEC gravely
abused its discretion or exceeded its jurisdiction: (1) when it
examined and invalidated 426 ballots for petitioner in precincts
not included in the original protest but only in the amended
protest filed beyond the ten-day period; (2) when it invalidated
466 ballots for petitioner as having identical handwritings
although protestant did not raise such issues, nor impugn
the validity of the ballots on such ground; and, (3) when it
concluded that certain ballots were with identical handwritings,
some marked, and others stray, and deducting them from the
total votes of petitioner without stating the grounds therefor.
Before resolving these issues, a distinction should at the outset
be drawn between an original action for certiorari, as in this case
brought under Sec. 7, Art. IX-A, 1987 Constitution, and an
appeal by certiorari or petition for review. In the special civil
action for certiorari, the main issue is lack of jurisdiction or grave
abuse of discretion amounting to excess of jurisdiction, while an
appeal by certiorari or petition for review is limited to the
consideration of questions of law. Thus, in the oft-cited case
of Padilla vs. COMELEC, 18 We ruled:
"The principal relief sought by petitioner is predicated on the
certiorari jurisdiction of this Court as provided in Section 11,
Article XII-C, 1973Constitution. It is, as explained in Aratuc vs.
Commission on Elections (88 SCRA 251), 'not as broad as it
used to be' under the old Constitution and it 'should be confined
to instances of grave abuse of discretion amounting to patent
and substantial denial of due process' . . . Moreover, the
legislative construction . . . of the constitutional provision has
narrowed down 'the scope and extent of the inquiry the Court is
supposed to undertake to what is strictly the office
of certiorari as distinguished from review.' And in Lucman vs.
Dimaporo . . . a case decided under the Constitution of 1935,
this Court, speaking through then Chief Justice Concepcion,
ruled that 'this Court cannot . . . review rulings or findings of
fact of the Commission on Elections' . . . as there is 'no reason
to believe that the framers of our Constitution intended to place
the [said] Commission created and explicitly
madeindependent by the Constitution itself on a lower level'
than statutory administrative organs (whose factual findings are
'not disturbed by courts of justice, except when there
is absolutely no evidence or no substantial evidence in support
of such findings') . . . Factual matters were deemed not proper
for consideration in proceedings brought either 'as an original
action for certiorari or as an appeal for certiorari . . . [for] the main
issue in . . . certiorari is one of jurisdiction lack of jurisdiction
or grave abuse of discretion amounting to excess of jurisdiction'
while 'petitions for review on certiorari are limited to the
consideration of questions of law.'
The aforementioned rule was reiterated in the cases of Ticzon
and Bashier . . . Indeed, as early as the year 1938, applying
Section 4, Article VI of the 1935 Constitution . . . this Court held
that the Electoral Commission's 'exclusive jurisdiction' being
clear from the language of the provision, 'judgment rendered . .
. in the exercise of such an acknowledged power is beyond
judicial interference, except . . . 'upon a clear showing of
such arbitrary andimprovident use of the power as will constitute
a denial of due process of law' . . . Originally lodged in the
legislature that exclusive function of being the 'sole judge' of
contests 'relating to the election, returns and qualifications' of
members of the legislature was transferred in its totality' to the
Electoral Commission by the 1935 Constitution. That grant of
power, to use the language of late Justice Jose P. Laurel, 'was
intended to be as completeand unimpaired as if it had remained
originally in the legislature . . .' These observations remain valid
and applicable to the exercise of that function, as now vested in
the respondent Commission by the 1973 Constitution."
Earlier, in Sidro v. Commission on Elections, 19 it was held
". . . This Court has invariably followed the principle that in the
absence of any jurisdictional infirmity or an error of law of the
utmost gravity, the conclusion reached by the respondent
Commission on a matter that falls within its competence is
entitled to the utmost respect. So it has been reiterated time and
time again."
Although the Padillacase hereinbefore quoted was decided
under the 1973 Constitution, the doctrine therein enunciated in
still applicable under the 1987 Constitution considering
that Sec. 11, Art. XII-C of the 1973 Constitution, invoked therein
has been retained in the 1987 Constitution except for the
limitation "as may be provided by this Constitution or by law."
Consequently, unless it is shown that the Constitution itself or
any law modifies the provision that ". . . any decision, order, or
ruling of each Commission 20 may be brought to the Supreme
Court on certiorari by the aggrieved party within thirty days from
receipt of a copy thereof," and none is pointed to Us, our
interpretation of the pertinent provisions adverted to in both
Constitutions, as well as our adherence thereto, cannot be any
less firm and faithful.
What is certain from the above disquisition is that the
extraordinary power of this Court to pass upon an order or
decision of COMELEC should be exercised restrictively, with
care and caution, while giving it the highest regard and respect
due a constitutional body. For, not every abuse of discretion
justifies the original action of certiorari; it must be grave. Nor any
denial of due process within its ambit; it must be patent and it
must be substantial. The test therefore is whether petitioner has
demonstrated convincingly that COMELEC has committed
grave abuse of discretion or exceeded its jurisdiction amounting
to patent and substantial denial of due process in issuing the
challenged decision. Here, petitioner has utterly failed.
HELD:
As regards the first issue of petitioner, it appears that the original
Protest of private respondent Pulmones did in fact cover all the
forty-five (45) precincts the COMELEC took cognizance of in
resolving EPC No. 88-1. As alleged in par. 5 of his Protest
"5. That while fraud and anomalies were rampant in practically
all the voting centers of Pagadian City, the violations were
glaringly and notably perpetrated in the following districts and/or
precincts . . ."
The prayer in the same Protest also confirms that it refers to
forty-five (45) precincts as it seeks the "opening and recounting
of votes case in all 3precincts in Kawit District; Precs. 77 and 80
in Tuburan District; Precs. 77, 42, 58, 80 and 70 all of Pagadian
City; Prec. 69 of Bonifacio District; Prec. 42 andall precincts in
Sta. Lucia District; all seven precincts in the District of Sto. Nio;
Precs. 32, 33 and 34, and all precincts of San Jose
District; all the precincts in San Pedro District; Precs. 19 and 32
and all other precincts in the Gatas district; and Prec. 8 and 11
and all other precincts of Balangasan District, all of Pagadian
City" (underscoring supplied). Specifically, the precincts
covered are: (a) all precincts of Kawit (63, 64 and 65; (b) two in
Tuburan (77 and 80); (c) one in Bonifacio (69); (d) all in Sta.
Lucia (42 and 50); (e) all in Sto. Nio (11-A, 12, 13-A, 14, 15 and
16); (f) all in San Jose (30, 31, 32, 33, 34, 35 and 36); (g) all in
San Pedro (52, 53, 54, 55, 56, 57, 58, 59, 60, 61 and 62); (h) all
in Gatas (17, 18, 19, 20, 21 and 22); (i) all in Balangasan (1-A,
4, 6, 8, 9 and 11); and, (j) Prec. 70 (unspecified district). The
sum total of these precincts is forty-five (45), which tallies with
the total number of precincts contested by protestant, now
private respondent.
It may be noted that while protestant did attempt to introduce
new precincts in his Amended Protest filed on February 15,
1988, namely, Precincts Nos. 101, 111, 112, 113, 121, 122, 129,
137, 143, 153, 108 and 131, which were not enumerated in the
original Protest, these precincts were not taken into
consideration by COMELEC in deciding EPC No. 88-1. Hence,
the first issue clearly appears to be based on a wrong
premise. LLpr
On the second issue, the failure or omission of protestant to
raise the question of identical handwriting or of impugning
the validity of the ballots on that ground, resulting in the
invalidation of 466 ballots for petitioner, does not preclude
respondent COMELEC from rejecting them on that ground.
Unlike an ordinary suit, an election protest is of utmost public
concern. The rights of the contending parties in the position
aspired for must yield to the far greater interest of the citizens in
the sanctity of the electoral process. This being the case, the
choice of the people to represent them may not be bargained
away by the sheer negligence of a party, nor defeated by
technical rules of procedure. Thus, COMELEC cannot just close
its eyes to the illegality of the ballots brought before it, where the
ground for the invalidation was omitted by the protestant. As
held in Yalung v. Atienza: 21
". . . Inasmuch as it is not necessary to specify in detail in the
motion of protest in which of the ballots the frauds and
irregularities were committed, such a procedure being well-nigh
impossible, and it being enough to allege in what the fraud and
irregularity considered, and that had it not been for such
anomalies, the result of the election would have been otherwise,
all of which have been alleged in the motion of protest in
question, the court or the commissioners appointed by the
same may revise all the ballots, admitting the valid and
legal ones and rejecting the others, with a view to arriving
at the lawfully expressed will of the electors. The institution
of popular suffrage is one of public interest and not a
private interest of the candidates, so that if in the revision
of the ballots some illegal ballots are found which have not
been specifically impugned in the motion of protest, the
court may reject them motu propio, since it is not essential
that the contestant set forth the grounds of his contest with
the same precision required of a pleading in ordinary civil
cases (20 Corpus Juris, 227; emphasis supplied).
"In the case of Lucero vs. De Guzman (45 Phil. 852), this court
stated the following: 'The purpose of the legislature in declaring
that contests should not be conducted upon pleadings or by
action was to free the courts as far as possible from the
technicalities incident to ordinary proceeding by action and to
enable the courts to administer justice speedily and without
complication."
"The trial court, then, did not err in taking into account in the
revision of the ballots, irregularities not set forth in the motion of
protest."
With regard to the third issue, the complaint of petitioner against
the alleged omission of COMELEC to state the reasons for its
conclusion that certain ballots were with identical handwritings,
some marked and others stray, does not in any magnitude
diminish the straightforward statement of the public respondent
that "it painstakingly examined and appreciated individually the
contested ballots for both protestant and protestee in
accordance with existing norms . . ." 22
Petitioner did not question this alleged irregularity by bringing
the matter to the attention of COMELEC (First Division)
immediately after the promulgation of its Resolution. The
Resolution containing the alleged jurisdictional defect was
promulgated on December 11, 1991. However, it was not until
he filed his petition on February 17, 1992, that petitioner
complained for the first time. Certainly, that Resolution having
been rendered by a division of COMELEC could have been
subject of a motion for reconsideration. Admittedly, petitioner did
not take steps to have the matter reconsidered by public
respondent before coming to Us.
Having been declared winner in the Resolution of December 11,
1991, petitioner would not ordinarily be expected to initiate a
motion for reconsideration. Nonetheless, he could have brought
up his objections in his Memorandum in opposition to the
Protestant's Motion for Reconsideration so that public
respondent could have properly ruled thereon. Consequently,
petitioner may be deemed to have waived his right to question
the Resolution when he failed to act accordingly despite the
opportunity so to do. He should not be permitted, in other words,
to remain mute and unaffected in the face of a perceived
jurisdictional defect and, worse, profit from his quiescence, only
to grumble in the end when it turns out to be prejudicial to his
interest. As it has been said, "[n]either equity not the law relieves
those who seek aid in Court merely to avoid the effects of their
own negligence . . ." (Lipscomb v. Talbott, 243 Mo 1, 36 [1912]).
WHEREFORE, finding no abuse of discretion, much less grave,
patent and substantial, the petition is DENIED. llcd
The temporary restraining order issued by this Court on March
3, 1992, is hereby lifted and set aside.
3. GATCHALIAN v. COMELEC
FIRST DIVISION
[G.R. No. 107979. June 19, 1995.]
DANILO F. GATCHALIAN, petitioner, vs. COURT OF
APPEALS, JUDGE IBARRA S. VIGILIA (BRANCH 17, RTC of
BULACAN) and GREGORIO N. ARUELO, JR., respondents.
SYLLABUS
1. ELECTION LAW; ELECTION PROTEST; PERIOD TO FILE
PETITION THEREFOR; SUSPENDED BY THE FILING OF
PRE-PROCLAMATION CASE. Gatchalian claims that the
election protest was filed only on June 2, 1992 or nineteen days
after his proclamation on May 13, 1992 as Vice Mayor of
Balagtas, Bulacan in violation of Section 3, Rule 35 of the
COMELEC Rules of Procedure. Petitioner's contention is
without merit . Said Section 3, Rule 35 provides as follows:
"Period to file petition. The petition shall be filed within ten
(10) days following the date of proclamation of the results of the
election." Under the above-cited section, Aruelo had ten days
from May 13, 1992 to file an election protest. Instead of filing an
election protest, Aruelo filed with the COMELEC a pre-
proclamation case against Gatchalian on May 22, 1992, or nine
days after May 13, 1992. The filing of the pre-proclamation case
suspended the running of the period within which to file an
election protest or quo warranto proceedings (B.P. Blg. 881,
Sec. 248). Aruelo received the COMELEC resolution denying
his pre-proclamation petition on June 22, 1992. Hence, Aruelo
had only one day left after June 22, 1992 within which to file an
election protest. However, it will be noted that Aruelo filed on
June 2, 1992 with the trial court an election protest ex abudante
cautela.
2. ID.; ID.; SHALL BE DISMISSED FOR FAILURE TO PAY
FILING FEE. Under Section 9, Rule 35 of the COMELEC
Rules of Procedure, a protestant has to pay the following: a)
filing fee of P300.00; b) legal research fee; and c) additional filing
fee if there be a claim for damages or attorney's fees. Aruelo,
upon filing the election protest with the trial court on June 2,
1992, paid the following amounts:
O.R. No. Amount
2084419-R P450.00 Docket Fee-Judiciary
Development Fund
8760129S 150.00 General Fund
1407317 10.00 Legal Research
1406063 5.60 Summons Fee
2084420 46.00 Summons Fee
From the above itemization, it is clear that Aruelo failed to pay
the filing fee of P300.00 for the election protest prescribed by
the COMELEC Rules of Procedure. The amount of P600.00,
consisting of P450.00 (Judiciary Development Fund) and
P150.00 (General Fund), refers to the docket fee for Aruelo's
claim for attorney's fees in the amount of P100,000.00 in
accordance with the schedule provided for in Section 7(a), Rule
141 of the Revised Rules of Court (Cf. Rule 35, Section 9, third
paragraph, COMELEC Rules of Procedure). The trial court
cannot simply deduct from the P600.00 the filing fee of P300.00
because the amount is specifically allocated by law (P.D. No.
1949) and by Supreme Court Administrative Circular No. 31-90
dated October 15, 1990 to the Judiciary Development Fund and
the General Fund. A separate set of receipts is used for the
collection of docket fees. It is the payment of the filing fee that
vests jurisdiction of the court over the election protest, not the
payment of the docket fees for the claim of damages and
attorney's fees. For failure to pay the filing fee prescribed under
Section 9, Rule 35 of the COMELEC Rules of Procedure, the
election protest must be dismissed. Under Section 9, Rule 35 of
the COMELEC Rules of Procedure, "[n]o protest . . . shall be
given due course without the payment of a filing fee in the
amount of three hundred pesos (P300.00) for each interest."
In Pahilan v. Tabalba, 230 SCRA 205 (1994), we had occasion
to rule as follows: "In the case now before us, and in election
cases in general, it is not the amount of damages, if any, that is
sought to be recovered which vests in the courts the jurisdiction
to try the same. Rather, it is the nature of the action which is
determinative of jurisdiction."
DECISION
QUIASON, J p:
This is a petition for certiorari and prohibition to set aside the
Decision of the Court of Appeals in CA-G.R. SP No. 28621.
FACTS:
Danilo F. Gatchalian and Gregorio N. Aruelo, Jr. were rival
candidates for the office of the Vice Mayor of Balagtas, Bulacan
in the May 11, 1992 elections.
On May 13, 1992, the Municipal Board of Canvassers
proclaimed Gatchalian as the duly elected Vice Mayor of
Balagtas, Bulacan by a margin of four votes.
On May 22, 1992, Aruelo filed with the Commission on Elections
(COMELEC) a verified petition docketed as SPC No. 92-130
seeking to annul the proclamation of Gatchalian.
On June 2, 1992, Aruelo filed with the Regional Trial Court,
Branch 17, Malolos, Bulacan, an election protest docketed as
Civil Case No. 343-M-92. In said election protest, Aruelo alleged
that the protest was filed ex abudante cautela, there being a
pending pre-proclamation case before the COMELEC. It
likewise contained a claim for damages in the amount of
P100,000.00 by way of attorney's fees. On the same date,
Aruelo paid the amount of P610.00 as filing fees.
On June 10, 1992, Gatchalian received an amended summons
from the clerk of court of the trial court, giving him five days
within which to answer.
Instead of filing an answer, Gatchalian filed a motion to dismiss
on June 15, 1992 on the following grounds: (a) the petition was
filed out of time; (b) there was a pending pre-proclamation
case before the COMELEC, and hence the protest was
premature; and (c) Aruelo failed to pay the prescribed filing
fees and cash deposit upon filing of the petition. Aruelo filed
an opposition to the motion to dismiss, to which Gatchalian filed
a reply.
Meanwhile, on June 17, 1992, the COMELEC denied Aruelo's
pre-proclamation case.
In its Order dated July 10, 1992, the trial court denied
Gatchalian's motion to dismiss and ordered him to file his
answer within five days from notice thereof. Gatchalian's motion
for reconsideration was denied on August 3, 1992.
On August 6, 1992, Gatchalian filed before the Court of Appeals,
a petition for certiorari (CA -G.R. SP No. 28621) alleging grave
abuse of discretion on the part of the trial court in denying
petitioner's motion to dismiss as well as his motion for
reconsideration.
On November 24, 1992, the Court of Appeals rendered its
decision concluding that there was no grave abuse of discretion
on the part of the trial court in denying Gatchalian's motion to
dismiss. It further ruled that the election protest was timely filed
and that Gatchalian's averment that the election protest should
be dismissed on the ground of non-payment of filing fee was
devoid of merit.
Hence, this petition.
ISSUE:
Gatchalian claims that the election protest was filed only on June
2, 1992 or nineteen days after his proclamation on May 13, 1992
as Vice Mayor of Balagtas, Bulacan in violation of Section 3,
Rule 35 of the COMELEC Rules of Procedure.
HELD:
Petitioner's contention is without merit .
Said Section 3, Rule 35 provides as follows:
"Period to file petition. The petition shall be filed within ten
(10) days following the date of proclamation of the results of the
election."
Under the above-cited section, Aruelo had ten days from May
13, 1992 to file an election protest. Instead of filing an election
protest, Aruelo filed with the COMELEC a pre-proclamation
case against Gatchalian on May 22, 1992, or nine days after
May 13, 1992. The filing of the pre-proclamation case
suspended the running of the period within which to file an
election protest or quo warranto proceedings (B.P. Blg. 881,
Sec. 248). Aruelo received the COMELEC resolution denying
his pre-proclamation petition on June 22, 1992. Hence, Aruelo
had only one day left after June 22, 1992 within which to file an
election protest. However, it will be noted that Aruelo filed on
June 2, 1992 with the trial court an election protest ex abudante
cautela.
Gatchalian further contends that the Court of Appeals
should have dismissed the election protest for failure of
Aruelo to pay the filing fee of P300.00 as required by Rule
35, Section 9 of the COMELEC Rules of Procedure.
This contention of petitioner is meritorious.
Section 9, Rule 35 of the COMELEC Rules of Procedure
provides:
"Filing fee. No protest, counter-protest, or protest-in-
intervention shall be given due course without the payment of a
filing fee in the amount of three hundred pesos (P300.00) for
each interest.
Each interest shall further pay the legal research fee as required
by law.
If a claim for damages and attorney's fees are set forth in a
protest, counter-protest or protest-in-intervention, an additional
filing fee shall be paid in accordance with the schedule provided
for in the Rules of Court in the Philippines."
Under said Rule, a protestant has to pay the following: a) filing
fee of P300.00; b) legal research fee; and c) additional filing fee
if there be a claim for damages or attorney's fees.
Aruelo, upon filing the election protest with the trial court on June
2, 1992, paid the following amounts:
O.R. NO. Amount
2084419-R P450.00 Docket Fee-Judiciary
Development Fund
8760129S 150.00 General Fund
1407317 10.00 Legal Research
1406063 5.60 Summons Fee
2084420 46.00 Summons Fee
From the above itemization, it is clear that Aruelo failed to
pay the filing fee of P300.00 for the election protest
prescribed by the COMELEC Rules of Procedure.
The amount of P600.00, consisting of P450.00 (Judiciary
Development Fund) and P150.00 (General Fund), refers to the
docket fee for Aruelo's claim for attorney's fees in the amount of
P100,000.00 in accordance with the schedule provided for
in Section 7(a), Rule 141 of the Revised Rules of Court (Cf. Rule
35, Section 9, third paragraph, COMELEC Rules of Procedure).
The trial court cannot simply deduct from the P600.00 the filing
fee of P300.00 because the amount is specifically allocated by
law (P.D. No. 1949) and by Supreme Court Administrative
Circular No. 31-90 dated October 15, 1990 to the Judiciary
Development Fund and the General Fund. A separate set of
receipts is used for the collection of docket fees.
It is the payment of the filing fee that vests jurisdiction of the
court over the election protest, not the payment of the docket
fees for the claim of damages and attorney's fees. For failure
to pay the filing fee prescribed under Section 9, Rule 35 of
the COMELEC Rules of Procedure, the election protest
must be dismissed. Under Section 9, Rule 35 of the
COMELEC Rules of Procedure, "[n]o protest . . . shall be given
due course without the payment of a filing fee in the amount of
three hundred pesos (P300.00) for each interest."
In Pahilan v. Tabalba, 230 SCRA 205 (1994), we had occasion
to rule as follows:
"In the case now before us, and in election cases in general, it
is not the amount of damages, if any, that is sought to be
recovered which vests in the courts the jurisdiction to try the
same. Rather, it is the nature of the action which is determinative
of jurisdiction."
WHEREFORE, the petition is GRANTED. The decision of the
Court of Appeals in CA-G.R. No. SP No. 28621 is SET ASIDE.
Civil Case No. 343-M-92 of the Regional Trial Court, Branch 17,
Malolos, Bulacan is DISMISSED.
4. SOLLER v. COMELEC
EN BANC
[G.R. No. 139853. September 5, 2000.]
FERDINAND THOMAS M.
SOLLER, petitioner, vs. COMMISSION ON ELECTIONS,
REGIONAL TRIAL COURT OF PINAMALAYAN, ORIENTAL
MINDORO (Branch 42) and ANGEL M.
SAULONG, respondents.
De Mesa and Ochoa Law Offices for petitioner.
Brillantes Navarro Jumamil Arcilla Escolin and Martinez Law
Offices and The Solicitor General for respondents.
SYNOPSIS
Petitioner Ferdinand Thomas M. Soller and private respondent
Angel M. Saulong were both candidates for mayor of the
Municipality of Bansud, Oriental Mindoro in the May 11, 1998,
elections. On May 14, 1998, Soller was proclaimed by the
municipal board of canvassers as the duly elected mayor. On
May 19, 1998, Saulong filed with the COMELEC a petition for
annulment of the proclamation/exclusion of election return. On
May 25, 1998, Saulong also filed an election protest before the
Regional Trial Court of Pinamalayan, Oriental Mindoro. Soller
moved to dismiss Saulong's protest on the ground of lack of
jurisdiction, forum-shopping and failure to state a cause of
action. On July 3, 1998, the COMELEC dismissed the petition
filed by Saulong. On the other hand, the trial court denied
Soller's motion to dismiss. His motion for reconsideration was
also denied. Soller then filed a petition for certiorari with the
COMELEC contending that respondent RTC acted without or in
excess of jurisdiction or with grave abuse of discretion in not
dismissing private respondent's election protest. On August 31,
1999, the COMELEC en banc dismissed the said petition.
Hence, Soller filed the instant petition. ESAHca
This Court found that petitioner's petition with the COMELEC
was not referred to a division of that Commission but was,
instead, submitted directly to the Commission en banc. The
petition for certiorari assailed the trial court's order denying the
motion to dismiss private respondent's election protest. The
questioned order of the trial court is interlocutory because it does
not end the trial court's task of adjudicating the parties'
contentions and determining their rights and liabilities as regards
each other. The authority to resolve a petition
for certiorari involving incidental issues of election protest, like
the questioned order of the trial court; falls within the division of
the COMELEC and not on the COMELEC en banc. Clearly, the
COMELEC en banc acted without jurisdiction in taking
cognizance of petitioner's petition in the first instance.
In order to write finis to the controversy at bar, the Court
resolved the issues raised by petitioner. A close scrutiny of the
receipts will show that private respondent failed to pay the
filing fee of P300.00 for his protest as prescribed by the
COMELEC rules. A court acquires jurisdiction over any
case only upon the payment of the prescribed docket fee.
Patently, the trial court did not acquire jurisdiction over private
respondent's election protest. Therefore, COMELEC gravely
erred in not ordering the dismissal of private respondent's
protest case. The Court noted that the verification of aforesaid
protest was defective. Since the petition lacked proper
verification, it should be treated as an unsigned pleading and
must be dismissed. Further, the Court found that private
respondent did not comply with the required certification against
forum shopping. Private respondent successively filed a
"petition for annulment of the proclamation/exclusion of election
return" and an election protest. Yet, he did not disclose in his
election protest that he earlier filed a petition for annulment of
proclamation/exclusion of election returns.
The instant petition was GRANTED.
SYLLABUS
3. REMEDIAL LAW; COURTS; JURISDICTION; ACQUIRED
ONLY UPON PAYMENT OF THE PRESCRIBED DOCKET
FEE; NOT COMPLIED WITH IN CASE AT BAR. Close
scrutiny of the receipts will show that private respondent failed
to pay the filing fee of P300.00 for his protest as prescribed by
the COMELEC rules. The amount of P368.00 for which OR
7023752 was issued for the Judiciary Development Fund as
shown by the entries in the cash book of the clerk of court. Thus,
only P32.00 with OR 7022478 credited to the general fund could
be considered as filing fee paid by private respondent for his
protest. A court acquires jurisdiction over any case only upon July 3, 1998. Before the dismissal, said case was legally still
the payment of the prescribed docket fee. Patently, the trial court pending resolution.
did not acquire jurisdiction over private respondent's election
protest.

4. ID.; ID.; ID.; ID.; ERRORS IN THE PAYMENT OF FILING 8. ID.; ID.; ID.; THE FACT THAT ELECTION PROTEST WAS
FEES IN ELECTION CASES ARE NO LONGER EXCUSABLE. NOT BASED ON SAME CAUSE OF ACTION AS THE PRE-
We have in a string of cases had the occasion to rule on this PROCLAMATION CASE IS NOT A VALID EXCUSE FOR NON-
matter. In Loyola vs. COMELEC, the clerk of court assessed COMPLIANCE THEREWITH. [T]he fact that private
private respondent therein the incorrect filing fee of P32.00 at respondent's protest was not based on the same cause of action
the time of filing of the election protest. Upon filing his counter- as his pre-proclamation case is not a valid excuse for not
protest, petitioner was assessed to pay the same amount. complying with the required disclosure in the certification against
Subsequently, the trial court remedied the situation by directing forum shopping.
the parties to pay the balance of P268.00. On review, we held
9. ID.; ID.; ID.; MANDATORY. The requirement to file a
that the lapse was not at all attributable to private respondent
certificate of non-forum shopping is mandatory. Failure to
and there was substantial compliance with the filing fee
comply with this requirement cannot be excused by the fact that
requirement. The error lies in the Clerk's misapplication and
a party is not guilty of forum shopping. The rule applies to any
confusion regarding application of Section 9 of Rule 35 of the
complaint, petition, application or other initiatory pleading,
COMELEC Rules of Procedure and this Court's resolution dated
regardless of whether the party filing it has actually committed
September 4, 1990 amending Rule 141 of the Rules of Court.
forum shopping. Every party filing any initiatory pleading is
An election protest falls within the exclusive original jurisdiction
required to swear under oath that he has not and will not commit
of the Regional Trial Court, in which case the Rules of Court will
forum shopping. Otherwise we would have an absurd situation,
apply, and that the COMELEC Rules of Procedure is primarily
as in this case, where the parties themselves would be the judge
intended to govern election cases before that tribunal. But the
of whether their actions constitute a violation of the rule, and
Court declared that this decision must not provide relief to
compliance therewith would depend on their belief that they
parties in future cases involving inadequate payment of filing
might or might not have violated the requirement. Such
fees in election cases. Our decisions
interpretation of the requirement would defeat the very purpose
in Pahilan and Gatchalianbar any claim of good faith, excusable
of the rule.
negligence or mistake in any failure to pay the full amount of
filing fees in election cases. . . . Clearly then, error in the 10. POLITICAL LAW; ELECTION LAWS; PRE-
payment of filing fees in election cases is no longer excusable. PROCLAMATION CONTROVERSIES; SHOULD NOT BE
ENTERTAINED BY THE COMELEC AFTER THE WINNING
5. POLITICAL LAW; ELECTION LAWS; ELECTION PROTEST;
CANDIDATES WERE PROCLAIMED. It could be argued that
PETITION THAT LACKS PROPER VERIFICATION SHOULD
private respondent's petition for annulment of
BE TREATED AS AN UNSIGNED PLEADING AND MUST BE
proclamation/exclusion of election returns was a pre-
DISMISSED. We note that the verification of aforesaid protest
proclamation case. The issues raised in that petition pertain to
is defective. In the verification, private respondent merely stated
the preparation and appreciation of election returns and the
that he caused the preparation of his petition and he has read
proceedings of the municipal board of canvassers. But note that
and understood all the allegations therein. Certainly, this is
such petition was filed after the proclamation of petitioner as the
insufficient as private respondent failed to state that the contents
winning candidate, thus, the petition was no longer viable, for
of his election protest are true and correct of his personal
pre-proclamation controversies may no longer be entertained by
knowledge. Since the petition lacks proper verification, it should
the COMELEC after the winning candidates have been
be treated as an unsigned pleading and must be dismissed.
proclaimed. cCAIES
6. REMEDIAL LAW; SUPREME COURT ADMINISTRATIVE RESOLUTION
CIRCULAR No. 04-94; CERTIFICATE OF NON-FORUM
SHOPPING; NOT COMPLIED WITH IN CASE AT BAR. [W]e QUISUMBING, J p:
find that private respondent did not comply with the required
certification against forum shopping. Private respondent This special civil action for certiorari seeks to annul the
successively filed a "petition for annulment of the resolution promulgated on August 31, 1999, in COMELEC
proclamation/exclusion of election return" and an election special relief case SPR No. 10-99. The resolution dismissed
protest. Yet, he did not disclose in his election protest that he petitioner's petition to set aside the orders of the Regional Trial
earlier filed a petition for annulment of proclamation/exclusion of Court of Pinamalayan, Oriental Mindoro, dated October 1, 1998
election returns. IcaEDC and February 1, 1999, which denied petitioner's motion to
dismiss the election protest filed by private respondent against
7. ID.; ID.; ID.; PARTY'S BELIEF THAT HE NO LONGER HAD petitioner and the motion for reconsideration, respectively.
A PENDING CASE BEFORE THE COMELEC BECAUSE HE
DEEMED THE PRE-PROCLAMATION CASE ABANDONED FACTS:
UPON FILING OF ELECTION PROTEST IS NOT A VALID
Petitioner and private respondent were both candidates for
REASON FOR NON-DISCLOSURE. [P]rivate respondent's
mayor of the municipality of Bansud, Oriental Mindoro in the May
belief that he no longer had a pending case before the
11, 1998 elections. On May 14, 1998, the municipal board of
COMELEC because he deemed it abandoned upon filing of his
canvassers proclaimed petitioner Ferdinand Thomas Soller duly
protest is not a valid reason for non-disclosure of the pendency
elected mayor.
of said pre-proclamation case. Note that the COMELEC
dismissed private respondent's pre-proclamation case only on
On May 19, 1998, private respondent Angel Saulong filed with
the COMELEC a 'petition for annulment of the
proclamation/exclusion of election return". 1On May 25, 1998,
private respondent filed with the Regional Trial Court of
Pinamalayan, Oriental Mindoro, an election protest against
petitioner docketed as EC-31-98.
On June 15, 1998, petitioner filed his answer with counter-
protest. Petitioner also moved to dismiss private respondent's
protest on the ground of lack of jurisdiction, forum-shopping, and
failure to state cause of action. 2
On July 3, 1998, COMELEC dismissed the pre-proclamation
case filed by private respondent.
On October 1, 1998, the trial court denied petitioner's motion to
dismiss. Petitioner moved for reconsideration but said motion
was denied. Petitioner then filed with the COMELEC a petition
for certiorari contending that respondent RTC acted without or
in excess of jurisdiction or with grave abuse of discretion in not
dismissing private respondent's election protest.
On August 31, 1999, the COMELEC en banc dismissed
petitioner's suit. The election tribunal held that private
respondent paid the required filing fee. It also declared that the
defect in the verification is a mere technical defect which should
not bar the determination of the merits of the case. The election
tribunal stated that there was no forum shopping to speak
of. ADSTCI
Under the COMELEC Rules of Procedure, a motion for
reconsideration of its en banc ruling is prohibited except in a
case involving an election offense. 3Since the present
controversy involves no election offense, reconsideration is not
possible and petitioner has no appeal or any plain, speedy and
adequate remedy in the ordinary course of law. Accordingly,
petitioner properly filed the instant petition for certiorari with this
Court.
On September 21, 1999, we required the parties to maintain
the status quo ante prevailing as of September 17, 1999, the
date of filing of this petition.
Before us, petitioner asserts that the COMELEC committed
grave abuse of discretion amounting to lack or excess of
jurisdiction:
[I]
. . . IN AFFIRMING RESPONDENT RTC'S REFUSAL TO
DISMISS PRIVATE RESPONDENT'S ELECTION PROTEST
DESPITE HIS (sic) LACK OF JURISDICTION OVER THE
SAME BY REASON OF THE FAILURE OF THE PRIVATE
RESPONDENT TO PAY ALL THE REQUISITE FILING FEES.
[II]
. . . IN AFFIRMING RESPONDENT'S RTC'S REFUSAL TO
DISMISS PRIVATE RESPONDENT'S ELECTION PROTEST
DESPITE THE INSUFFICIENCY OF HIS PETITION IN FORM
AND SUBSTANCE AND ITS FAILURE TO STATE A CAUSE
OF ACTION.
[III]
. . . IN AFFIRMING RESPONDENT RTC'S REFUSAL TO
DISMISS THE ELECTION PROTEST BELOW ON THE
GROUNDS OF FORUM-SHOPPING AND FAILURE TO
COMPLY WITH THE SUPREME COURT CIRCULAR
REQUIRING A TRUTHFUL CERTIFICATION OF NON-FORUM
SHOPPING DESPITE INCONTROVERTIBLE EVIDENCE
THEREOF. 4
ISSUE:
In our view, notwithstanding petitioner's formulation of issues,
the principal question presented for our resolution is whether or
not public respondent COMELEC gravely abused its discretion
amounting to lack or excess of jurisdiction in not ordering the
dismissal of private respondent's election protest.
At the outset, even if not squarely raised as an issue, this Court
needs to resolve the question concerning COMELEC's
jurisdiction. Unless properly resolved, we cannot proceed further
in this case.
Section 3, Subdivision C of Article IX of the Constitution reads:
"The Commission on Elections may sit en banc or in two
divisions, and shall promulgate its rules of procedure in order to
expedite the disposition of election cases, including pre-
proclamation controversies. All such election cases shall be
heard and decided in division, provided that motions for
reconsideration of decision shall be decided by the
Commission en banc." EIDATc
Thus, in Sarmiento vs. COMELEC 5 and in subsequent
cases, 6 we ruled that the COMELEC, sitting en banc, does not
have the requisite authority to hear and decide election cases
including pre-proclamation controversies in the first instance.
This power pertains to the divisions of the Commission. Any
decision by the Commission en banc as regards election cases
decided by it in the first instance is null and void.
As can be gleaned from the proceedings aforestated,
petitioner's petition with the COMELEC was not referred to a
division of that Commission but was, instead, submitted directly
to the Commission en banc. The petition for certiorari assails
the trial court's order denying the motion to dismiss private
respondent's election protest. The questioned order of the trial
court is interlocutory because it does not end the trial court's task
of adjudicating the parties' contentions and determining their
rights and liabilities as regards each other. 7 In our view, the
authority to resolve petition for certiorari iinvolving incidental
issues of election protest, like the questioned order of the trial
court, falls within the division of the COMELEC and not on the
COMELEC en banc. Note that the order denying the motion to
dismiss is but an incident of the election protest. If the principal
case, once decided on the merits, is cognizable on appeal by a
division of the COMELEC, then, there is no reason why petitions
for certiorari relating to incidents of election protest should not
be referred first to a division of the COMELEC for resolution.
Clearly, the COMELEC en banc acted without jurisdiction in
taking cognizance of petitioner's petition in the first instance.
Since public respondent COMELEC had acted without
jurisdiction in this case, the petition herein is without doubt
meritorious and has to be granted. But in order to write finis to
the controversy at bar, we are constrained to also resolve the
issues raised by petitioner, seriatim.
Petitioner contends that private respondent's protest should
have been dismissed outright as the latter failed to pay the
amount of P300.00 filing fee required under the COMELEC
rules. 8 Petitioner's contention is supported by Section 9, Rule
35 of the COMELEC Rules of Procedure 9 and corresponding
receipts 10 itemized as follows:
P 368.00 Filing fee in EC 31-98, O.R. 7023752;
P 32.00 Filing fee in EC 31-98, O.R. 7022478;
P 46.00 Summons fee in EC 31-98, O.R. 7023752;
P 4.00 Summons fee in EC 31-98, O.R. 4167602;
P 10.00 Legal Research Fund fee, O.R. 2595144, and;
P 5.00 Victim Compensation Fund, O.R. 4167979
P465.00
Close scrutiny of the receipts will show that private
respondent failed to pay the filing fee of P300.00 for his
protest as prescribed by the COMELEC rules. The amount of
P368.00 for which OR 7023752 was issued for the Judiciary
Development Fund as shown by the entries in the cash book of
the clerk of court. 11 Thus, only P32.00 with OR 7022478
credited to the general fund could be considered as filing fee
paid by private respondent for his protest. A court acquires
jurisdiction over any case only upon the payment of the
prescribed docket fee. 12 Patently, the trial court did not
acquire jurisdiction over private respondent's election
protest. Therefore, COMELEC gravely erred in not ordering
the dismissal of private respondent's protest case.
We have in a string of cases 13 had the occasion to rule on this
matter. In Loyola vs. COMELEC, the clerk of court assessed
private respondent therein the incorrect filing fee of P32.00 at
the time of filing of the election protest. Upon filing his counter-
protest, petitioner was assessed to pay the same amount.
Subsequently, the trial court remedied the situation by directing
the parties to pay the balance of P268.00. On review, we held
that the lapse was not at all attributable to private respondent
and there was substantial compliance with the filing fee
requirement. The error lies in the Clerk's misapplication and
confusion regarding application of Section 9 of Rule 35 of the
COMELEC Rules of Procedure and this Court's resolution dated
September 4, 1990 amending Rule 141 of the Rules of Court.
An election protest falls within the exclusive original jurisdiction
of the Regional Trial Court, in which case the Rules of Court will
apply, and that the COMELEC Rules of Procedure is primarily
intended to govern election cases before that tribunal. But the
Court declared that this decision must not provide relief to
parties in future cases involving inadequate payment of filing
fees in election cases. Our decisions
in Pahilan and Gatchalian bar any claim of good faith,
excusable negligence or mistake in any failure to pay the full
amount of filing fees in election cases.
In Miranda vs. Castillo, private respondents each paid per
assessment the amount of P465.00 as filing fees. Of this
amount, P414.00 was allocated for the JDF, P10.00 for legal
research fund, P5.00 for victim compensation fee, and only the
amount of P32.00 was regarded as filing fee. The Court
considered the amount as partial payment of the P300.00 filing
fee under the COMELEC rules and required payment of the
deficiency in the amount of P268.00. But then again, the Court
reiterated the caveat that in view of Pahilan, Gatchalian,
and Loyola cases we would no longer tolerate any mistake in
the payment of the full amount of filing fees for election cases
filed after the promulgation of the Loyola decision on March 27,
1997.
Clearly then, error in the payment of filing fees in election cases
is no longer excusable. And the dismissal of the present case
for that reason is, in our view, called for. HCEcaT
Besides, there is another reason to dismiss private respondent's
election protest. We note that the verification of aforesaid protest
is defective. In the verification, private respondent merely stated
that he caused the preparation of his petition and he has read
and understood all the allegations therein.14 Certainly, this is
insufficient as private respondent failed to state that the contents
of his election protest are true and correct of his personal
knowledge. 15 Since the petition lacks proper verification, it
should be treated as an unsigned pleading and must be
dismissed. 16
Further, we find that private respondent did not comply with the
required certification against forum shopping. Private
respondent successively filed a "petition for annulment of the
proclamation/exclusion of election return" and an election
protest. Yet, he did not disclose in his election protest that he
earlier filed a petition for annulment of proclamation/exclusion of
election returns.
It could be argued that private respondent's petition for
annulment of proclamation/exclusion of election returns was a
pre-proclamation case. The issues raised in that petition pertain
to the preparation and appreciation of election returns and the
proceedings of the municipal board of canvassers. But note that
such petition was filed after the proclamation of petitioner as the
winning candidate, thus, the petition was no longer viable, for
pre-proclamation controversies may no longer be entertained by
the COMELEC after the winning candidates have been
proclaimed. It might even be claimed with some reason that
private respondent, by resorting to the wrong remedy,
abandoned his pre-proclamation case earlier filed. 17
Nonetheless, private respondent's belief that he no longer had
a pending case before the COMELEC because he deemed it
abandoned upon filing of his protest is not a valid reason for non-
disclosure of the pendency of said pre-proclamation case. Note
that the COMELEC dismissed private respondent's pre-
proclamation case only on July 3, 1998. Before the dismissal,
said case was legally still pending resolution. Similarly, the fact
that private respondent's protest was not based on the same
cause of action as his pre-proclamation case is not a valid
excuse for not complying with the required disclosure in the
certification against forum shopping. The requirement to file a
certificate of non-forum shopping is mandatory. Failure to
comply with this requirement cannot be excused by the fact that
a party is not guilty of forum shopping. The rule applies to any
complaint, petition, application or other initiatory pleading,
regardless of whether the party filing it has actually committed
forum shopping. Every party filing any initiatory pleading is
required to swear under oath that he has not and will not commit
forum shopping. Otherwise we would have an absurd situation,
as in this case, where the parties themselves would be the judge
of whether their actions constitute a violation of the rule, and
compliance therewith would depend on their belief that they
might or might not have violated the requirement. Such
interpretation of the requirement would defeat the very purpose
of the rule. 18
Taking into account all the foregoing circumstances in this case,
we are persuaded that respondent Regional Trial Court erred
and committed grave abuse of discretion in failing to dismiss
private respondent's election protest against petitioner. And to
reiterate, respondent COMELEC en banc had no jurisdiction to
affirm the refusal of respondent trial court to dismiss private
respondent's election protest.
WHEREFORE, the instant petition is GRANTED. The assailed
RESOLUTION of public respondent COMELEC is hereby
ANNULLED AND SET ASIDE. The temporary restraining order
issued by this Court on September 21, 1999, is made
permanent. The Regional Trial Court of Pinamalayan, Oriental
Mindoro, Branch 42, is hereby ordered to DISMISS election
protest EC No. 31-98. Costs against private respondent.
SO ORDERED.
REQUISITES OF QUO WARRANTO:
1. File by any registered voter in the constituency
2. On the ground of ineligibility or of disloyalty to the Republic of
the Philippines
3. Filed within 10 days after the proclamation of the results of
the election
SECTION 253. Petition for quo warranto.
Any voter contesting the election of any Member of
the Batasang Pambansa, regional, provincial, or city officer on
the ground of ineligibility or of disloyalty to the Republic of the
Philippines shall file a sworn petition for quo warranto with the
Commission within ten days after the proclamation of the results
of the election. (Art. XIV, Sec. 60, BP 697; Art. XVIII, Sec. 189,
par. 2, 1978 EC)
Any voter contesting the election of any municipal
or barangay officer on the ground of ineligibility or of disloyalty
to the Republic of the Philippines shall file a sworn petition
for quo warranto with the regional trial court or metropolitan or
municipal trial court, respectively, within ten days after the
proclamation of the results of the election. (Art. XVIII, Sec. 189,
par. 2, 1978 EC)
CASE:
OCAMPO v. HRET
[G.R. No. 158466. June 15, 2004.]
PABLO V. OCAMPO, petitioner, vs. HOUSE OF
REPRESENTATIVES ELECTORAL TRIBUNAL AND MARIO
B. CRESPO a.k.a. MARK JIMENEZ,respondents.
The wreath of victory cannot be transferred from the disqualified
winner to the repudiated loser because the law then as now only
authorizes a declaration of election in favor of the person who
obtained a plurality of votes and does not entitle a candidate
receiving the next highest number of votes to be declared
elected. 1
This is a petition for certiorari under Rule 65 of the 1997 Rules
of Civil Procedure, as amended, filed by petitioner Pablo V.
Ocampo. He alleged that the House of Representatives
Electoral Tribunal (HRET), herein public respondent, committed
grave abuse of discretion in issuing in HRET Case No. 01-
024,Pablo Ocampo vs. Mario "Mark Jimenez" Crespo,
the (a) Resolution 2 dated March 27, 2003 holding that
"protestant" (herein petitioner) cannot be proclaimed the duly
elected Representative of the 6th District of Manila since being
a second placer, he "cannot be proclaimed the first among the
remaining qualified candidates"; and (b) Resolution 3 dated
June 2, 2003 denying his motion for reconsideration.
The facts are uncontroverted:
On May 23, 2001, the Manila City Board of Canvassers
proclaimed private respondent Mario B. Crespo, a.k.a. Mark
Jimenez, the duly elected Congressman of the 6th District of
Manila pursuant to the May 14, 2001 elections. He was credited
with 32,097 votes or a margin of 768 votes over petitioner who
obtained 31,329 votes.
On May 31, 2001, petitioner filed with the HRET an electoral
protest 4 against private respondent, impugning the election in
807 precincts in the 6th District of Manila on the following
grounds: (1) misreading of votes garnered by
petitioner; (2) falsification of election returns; (3) substitution of
election returns; (4) use of marked, spurious, fake and stray
ballots; and (5) presence of ballots written by one person or two
persons. The case was docketed asHRET Case No. 01-024.
Petitioner prayed that a revision and appreciation of the ballots
in the 807 contested precincts be conducted; and that,
thereafter, he be proclaimed the duly elected Congressman of
the 6th District of Manila.
On June 18, 2001, private respondent filed his answer with
counter-protest 5 vehemently denying that he engaged in
massive vote buying. He also opposed petitioner's allegation
that there is a need for the revision and appreciation of ballots.
After the preliminary conference between the parties on July 12,
2001, the HRET issued a Resolution 6 limiting the issues
to: first, whether massive vote-buying was committed by private
respondent; and second, whether petitioner can be proclaimed
the duly elected Representative of the 6th District of Manila.
Meanwhile, on March 6, 2003, the HRET, in HRET Cases
Nos. 01-020, Bienvenido Abante & Prudencio Jalandoni
vs. Mario Crespo, and 01-023, Rosenda Ann M. Ocampo
vs. Mario Crespo, issued Resolutions declaring that private
respondent is "ineligible for the Office of Representative of
Sixth District of Manila for lack of residence in the district"
and ordering "him to vacate his office." 7 Private respondent
filed a motion for reconsideration but was denied. 8
On March 12, 2003, petitioner filed a motion to
implement Section 6 of Republic Act No. 6646, 9 which reads:
"Section 6. Effects of Disqualification Case. Any candidate
who has been declared by final judgment to be disqualified shall
not be voted for, and the votes cast for him shall not be counted.
If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and
receives the winning number of votes in such election, the Court
or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or
any intervenor, may during the pendency thereof, order the
suspension of the proclamation of such candidate whenever the
evidence of guilt is strong."
Petitioner averred that since private respondent was
declared disqualified in HRET Cases Nos. 01-020 and 01-
023, the votes cast for him should not be counted. And
having garnered the second highest number of votes, he
(petitioner) should be declared the winner in the May 14, 2001
elections and proclaimed the duly elected Congressman of the
6th District of Manila.
On March 26, 2003, private respondent filed an opposition to
petitioner's motion to implement the afore-quoted provision.
On March 27, 2003, the HRET issued a Resolution holding that
private respondent was guilty of vote-buying and disqualifying
him as Congressman of the 6th District of Manila. Anent the
second issue of whether petitioner can be proclaimed the duly
elected Congressman, the HRET held:
". . . Jurisprudence has long established the doctrine that a
second placer cannot be proclaimed the first among the
remaining qualified candidates.The fact that the candidate who
obtained the highest number of votes is later declared to be
disqualified or not eligible for the office to which he was elected
does not necessarily give the candidate who obtained the
second highest number of votes the right to be declared the
winner of the elective office. . . .
It is of no moment that there is only a margin of 768 votes
between protestant and protestee. Whether the margin is ten or
ten thousand, it still remains that protestant did not receive the
mandate of the majority during the elections. Thus, to proclaim
him as the duly elected representative in the stead of protestee
would be anathema to the most basic precepts of republicanism
and democracy as enshrined within our Constitution. In effect,
we would be advocating a massive disenfranchisement of the
majority of the voters of the sixth district of Manila.
Congressional elections are different from local government
elections. In local government elections, when the winning
candidate for governor or mayor is subsequently disqualified,
the vice-governor or the vice-mayor, as the case may be,
succeeds to the position by virtue of the Local Government
Code. It is different in elections for representative. When a voter
chooses his congressional candidate, he chooses only one. If
his choice is concurred in by the majority of voters, that
candidate is declared the winner. Voters are not afforded the
opportunity of electing a 'substitute congressman' in the
eventuality that their first choice dies, resigns, is disqualified, or
in any other way leaves the post vacant. There can only be one
representative for that particular legislative district. There are no
runners-up or second placers. Thus, when the person vested
with the mandate of the majority is disqualified from holding the
post he was elected to, the only recourse to ascertain the new
choice of the electorate is to hold another election. . . .
This does not mean that the Sixth Legislative District of Manila
will be without adequate representation in Congress. Article VI,
Section 9 of the Constitution, and Republic Act No. 6645 allows
Congress to call a special election to fill up this vacancy. There
are at least 13 months until the next congressional elections,
which is more than sufficient time within which to hold a special
election to enable the electorate of the Sixth District of Manila to
elect their representative.
For this reason, the Tribunal holds that protestant cannot be
proclaimed as the duly elected representative of the Sixth
legislative District of Manila.
In view of the conclusion herein reached, it is unnecessary to
rule on the recount and revision of ballots in the protested and
counter-protested precincts.
WHEREFORE, the Tribunal Resolved to:
xxx xxx xxx
2) DENY protestant's (petitioner) Motion to Implement Section
6, Republic Act No. 6646 by declaring the votes cast for Mario
Crespo as stray votes."
Petitioner filed a partial motion for reconsideration but was
denied. Hence, the present petition for certiorari.
Petitioner contends that the HRET committed grave abuse of
discretion when it ruled that "it is unnecessary to rule on the
recount and revision of ballots in the protested and counter-
protested precincts." He maintains that it is the ministerial duty
of the HRET to implement the provisions of Section 6, R.A. No.
6646 specifically providing that "any candidate who has been
declared by final judgment to be disqualified shall not be voted
for, and the votes cast for him shall not be counted."
In his comment, private respondent counters that what the law
requires is that the disqualification by final judgment takes place
before the election. Here, the HRET Resolutions disqualifying
him as Representative of the 6th District of Manila were
rendered long after the May 14, 2001 elections. He also claims
that the Resolutions are not yet final and executory because
they are the subjects of certiorari proceedings before this Court.
Hence, all his votes shall be counted and none shall be
considered stray.
The HRET, in its comment, through the Office of the Solicitor
General, merely reiterates its ruling.
The petition must be dismissed.
The issues here are: (1) whether the votes cast in favor of
private respondent should not be counted pursuant to Section 6
of R.A. No. 6646; and (2)whether petitioner, a second placer in
the May 14, 2001 congressional elections, can be proclaimed
the duly elected Congressman of the 6th District of Manila.
The issues raised are not novel. In Codilla, Sr. vs. De
Venecia, 10 we expounded on the application of Section 6, R.A.
No. 6646. There, we emphasized that there must be a final
judgment before the election in order that the votes of a
disqualified candidate can be considered "stray", thus:
"Section 6 of R.A. No. 6646 and section 72 of the Omnibus
Election Code require a final judgment before the election for
the votes of a disqualified candidate to be considered "stray."
Hence, when a candidate has not yet been disqualified by final
judgment during the election day and was voted for, the votes
cast in his favor cannot be declared stray. To do so would
amount to disenfranchising the electorate in whom sovereignty
resides."
The obvious rationale behind the foregoing ruling is that in voting
for a candidate who has not been disqualified by final judgment
during the election day, the people voted for him bona fide,
without any intention to misapply their franchise, and in the
honest belief that the candidate was then qualified to be the
person to whom they would entrust the exercise of the powers
of government. 11
In the present case, private respondent was declared
disqualified almost twenty-two (22) months after the May 14,
2001 elections. Obviously, the requirement of final judgment
before election" is absent. Therefore, petitioner can not invoke
Section 6 of R.A. No. 6646.
Anent the second issue, we revert back to the settled
jurisprudence that the subsequent disqualification of a candidate
who obtained the highest number of votes does not entitle the
candidate who garnered the second highest number of votes to
be declared the winner. 12 This principle has been reiterated in
a number our decisions, such as Labo,
Jr. vs. COMELEC, 13 Abella vs. COMELEC, 14 Benito
vs. COMELEC 15 and Domino vs. COMELEC . 16 As a matter
of fact, even as early as 1912, it was held that the candidate who
lost in an election cannot be proclaimed the winner in the event
that the candidate who won is found to be ineligible for the office
for which he was elected. 17
In Geronimo vs. Ramos, 18 if the winning candidate is not
qualified and cannot qualify for the office to which he was
elected, a permanent vacancy is thus created. The second
placer is just that, a second placer he lost in the elections, he
was repudiated by either the majority or plurality of voters. He
could not be proclaimed winner as he could not be considered
the first among the qualified candidates. To rule otherwise is to
misconstrue the nature of the democratic electoral process and
the sociological and psychological underpinnings behind voters'
preferences. 19
At any rate, the petition has become moot and academic. The
Twelfth Congress formally adjourned on June 11, 2004. And on
May 17, 2004, the City Board of Canvassers proclaimed
Bienvenido Abante the duly elected Congressman of the Sixth
District of Manila pursuant to the May 10, 2004 elections.
In the recent case of Enrile vs. Senate Electoral Tribunal, 20 we
ruled that a case becomes moot and academic when there is no
more actual controversy between the parties or no useful
purpose can be served in passing upon the merits. Worth
reiterating is our pronouncement in Gancho-on vs. Secretary of
Labor and Employment, thus: 21
"It is a rule of universal application, almost, that courts of justice
constituted to pass upon substantial rights will not consider
questions in which no actual interests are involved; they decline
jurisdiction of moot cases. And where the issue has become
moot and academic, there is no justiciable controversy, so that
a declaration thereon would be of no practical use or value.
There is no actual substantial relief to which petitioner would be
entitled and which would be negated by the dismissal of the
petition."
WHEREFORE, the petition is hereby DISMISSED.
QUO WARRANTO IN
ELECTIVE OFFICE APPOINTIVE OFFICE
BASIS
SEC. 253, BP 881 SEC. 6, RULE 68, ROC
Special civil action, any voter Special civil action, filed by a
person who has a claim over
the position
ISSUE
Eligibility of the officer-elect, Legality of the appointment
lacks qualification
EFFECT OF FAVORABLE DECISION
Person obtaining the 2nd Court determines who is
highest votes cannot be entitled to the position
proclaimed winner, he is
deemed rejected by the
electorate
ARTICLE XXII
Election Offenses
SECTION 261. Prohibited Acts.
The following shall be guilty of an election offense:
(a) Vote-buying and vote-selling.
(1) Any person who gives, offers or promises money or anything
of value, gives or promises any office or employment, franchise
or grant, public or private, or makes or offers to make an
expenditure, directly or indirectly, or cause an expenditure to be
made to any person, association, corporation, entity, or
community in order to induce anyone or the public in general to
vote for or against any candidate or withhold his vote in the
election, or to vote for or against any aspirant for the nomination
or choice of a candidate in a convention or similar selection
process of a political party.
(2) Any person, association, corporation, group or community
who solicits or receives, directly or indirectly, any expenditure or
promise of any office or employment, public or private, for any
of the foregoing considerations. (Par. (a), Sec. 178, 1978 EC)
(b) Conspiracy to bribe voters.
Two or more persons, whether candidates or not, who come to
an agreement concerning the commission of any violation of
paragraph (a) of this section and decide to commit it. (Par. (b),
Id.)
(c) Wagering upon result of election.
Any person who bets or wagers upon the outcome of, or any
contingency connected with an election. Any money or thing of
value or deposit of money or thing of value situated anywhere in
the Philippines put as such bet or wager shall be forfeited to the
government. (Par. (c), Id.)
(d) Coercion of subordinates.
(1) Any public officer, or any officer of any public or private
corporation or association, or any head, superior, or
administrator of any religious organization, or any employer or
land-owner who coerces or intimidates or compels, or in any
manner influence, directly or indirectly, any of his subordinates
or members or parishioners or employees or house helpers,
tenants, overseers, farm helpers, tillers, or lease holders to aid,
campaign or vote for or against any candidate or any aspirant
for the nomination or selection of candidates.
(2) Any public officer or any officer of any commercial, industrial, Any public official who makes or causes any transfer or detail
agricultural, economic or social enterprise or public or private whatever of any officer or employee in the civil service including
corporation or association, or any head, superior or public school teachers, within the election period except upon
administrator of any religious organization, or any employer or prior approval of the Commission. (Par. (g), Id.)
landowner who dismisses or threatens to dismiss, punishes or
threatens to punish by reducing his salary, wage or (i) Intervention of public officers and employees.
compensation, or by demotion, transfer, suspension,
Any officer or employee in the civil service, except those holding
separation, excommunication, ejectment, or causing him
political offices; any officer, employee, or member of the Armed
annoyance in the performance of his job or in his membership,
Forces of the Philippines, or any police force, special forces,
any subordinate member or affiliate, parishioner, employee or
home defense forces, barangay self-defense units and all other
house helper, tenant, overseer, farm helper, tiller, or lease
para-military units that now exist or which may hereafter be
holder, for disobeying or not complying with any of the acts
organized who, directly or indirectly, intervenes in any election
ordered by the former to aid, campaign or vote for or against any
campaign or engages in any partisan political activity, except to
candidate, or any aspirant for the nomination or selection of
vote or to preserve public order, if he is a peace officer. (Par. (jjj),
candidates. (Par. (d), Id.)
Id.)
(e) Threats, intimidation, terrorism, use of fraudulent device
(j) Undue influence.
or other forms of coercion.
It is unlawful for any person to promise any office or
Any person who, directly or indirectly, threatens, intimidates or
employment, public or private, or to make or offer to make an
actually causes, inflicts or produces any violence, injury,
expenditure, directly or indirectly, or to cause an expenditure to
punishment, damage, loss or disadvantage upon any person or
be made to any person, association, corporation or entity, which
persons or that of the immediate members of his family, his
may induce anyone or the public in general either to vote or
honor or property, or uses any fraudulent device or scheme to
withhold his vote, or to vote for or against any candidate in any
compel or induce the registration or refraining from registration
election or any aspirant for the nomination or selection of an
of any voter, or the participation in a campaign or refraining or
official candidate in a convention of a political party. It is likewise
desistance from any campaign, or the casting of any vote or
unlawful for any person, association, corporation or community,
omission to vote, or any promise of such registration, campaign,
to solicit or receive, directly or indirectly, any expenditure or
vote, or omission therefrom. (Par. (e), Id.)
promise or any office, or employment, public or private, for any
(f) Coercion of election officials and employees. of the foregoing considerations. (Sec. 53, 1971 EC)

Any person who, directly or indirectly, threatens, intimidates,
terrorizes or coerces any election official or employee in the
performance of his election functions or duties. (New)
(g) Appointment of new employees, creation of new
position, promotion, or giving salary increases.
During the period of forty-five days before a regular election and
thirty days before a special election, (1) any head, official or
appointing officer of a government office, agency or
instrumentality, whether national or local, including government-
owned or controlled corporations, who appoints or hires any new
employee, whether provisional, temporary or casual, or creates
and fills any new position, except upon prior authority of the
Commission. The Commission shall not grant the authority
sought unless, it is satisfied that the position to be filled is
essential to the proper functioning of the office or agency
concerned, and that the position shall not be filled in a manner
that may influence the election.
As an exception to the foregoing provisions, a new employee
may be appointed in case of urgent need: Provided, however,
That notice of the appointment shall be given to the Commission
within three days from the date of the appointment. Any
appointment or hiring in violation of this provision shall be null
and void.
(2) Any government official who promotes, or gives any increase
of salary or remuneration or privilege to any government official
or employee, including those in government-owned or controlled
corporations. (Par. (f), Sec. 178, 1978 EC)
(h) Transfer of officers and employees in the civil service.
(k) Unlawful electioneering.
It is unlawful to solicit votes or undertake any propaganda on the
day of registration before the board of election inspectors and
on the day of election, for or against any candidate or any
political party within the polling place and with a radius of thirty
meters thereof. (Sec. 56, 1971 EC)
(l) Prohibition against dismissal of employees, laborers, or
tenants.
No employee or laborer shall be dismissed, nor a tenant be
ejected from his landholdings for refusing or failing to vote for
any candidate of his employer or landowner. Any employee,
laborer or tenant so dismissed or ejected shall be reinstated and
the salary or wage of the employee or laborer, or the share of
the harvest of the tenant, shall be restored to the aggrieved party
upon application to the proper court. (Sec. 74, 1971 EC)
(m) Appointment or use of special policemen, special
agents, confidential agents or the like.
During the campaign period, on the day before and on election
day, any appointing authority who appoints or any person who
utilizes the services of special policemen, special agents,
confidential agents or persons performing similar functions;
persons previously appointed as special policemen, special
agents, confidential agents or persons performing similar
functions who continue acting as such, and those who fail to turn
over their firearms, uniforms, insignias and other badges of
authority to the proper officer who issued the same.
At the start of the aforementioned period,
the barangay chairman, municipal mayor, city mayor, provincial
governor, or any appointing authority shall submit to the
Commission a complete list of all special policemen, special
agents, confidential agents or persons performing similar
functions in the employ of their respective political subdivisions,
with such particulars as the Commission may require. (Par. (h),
Sec. 178, 1978 EC)
(n) Illegal release of prisoners before and after election.
The Director of the Bureau of Prisons, any provincial warden,
the keeper of the jail or the person or persons required by law to
keep prisoners in their custody who illegally orders or allows any
prisoner detained in the national penitentiary, or the provincial,
city or municipal jail to leave the premises thereof sixty days
before and thirty days after the election. The municipal or city
warden, the provincial warden, the keeper of the jail or the
person or persons required by law to keep prisoners in their
custody shall post in three conspicuous public places a list of the
prisoners or detention prisoners under their care. Detention
prisoners must be categorized as such. (Par. (i), Id.) acd
(o) Use of public funds, money deposited in trust,
equipment, facilities owned or controlled by the
government for an election campaign.
Any person who uses under any guise whatsoever, directly or
indirectly, (1) public funds or money deposited with, or held in
trust by, public financing institutions or by government offices,
banks, or agencies; (2) any printing press, radio, or television
station or audio-visual equipment operated by the Government
or by its divisions, sub-divisions, agencies or instrumentalities,
including government-owned or controlled corporations, or by
the Armed Forces of the Philippines; or (3) any equipment,
vehicle, facility, apparatus, or paraphernalia owned by the
government or by its political subdivisions, agencies including
government-owned or controlled corporations, or by the Armed
Forces of the Philippines for any election campaign or for any
partisan political activity. (Par. (j) Id.)
(p) Deadly weapons.
Any person who carries any deadly weapon in the polling place
and within a radius of one hundred meters thereof during the
days and hours fixed by law for the registration of voters in the
polling place, voting, counting of votes, or preparation of the
election returns. However, in cases of affray, turmoil, or disorder,
any peace officer or public officer authorized by the Commission
to supervise the election is entitled to carry firearms or any other
weapon for the purpose of preserving order and enforcing the
law. (Par. (k), Id.)
(q) Carrying firearms outside residence or place of
business.
Any person who, although possessing a permit to carry firearms,
carries any firearms outside his residence or place of business
during the election period, unless authorized in writing by the
Commission: Provided, That a motor vehicle, water or air craft
shall not be considered a residence or place of business or
extension hereof. (Par. (l), Id.)
This prohibition shall not apply to cashiers and disbursing
officers while in the performance of their duties or to persons
who by nature of their official duties, profession, business or
occupation habitually carry large sums of money or valuables.
(r) Use of armored land, water or air craft.
Any person who uses during the campaign period, on the day
before and on election day, any armored land, water or air craft,
provided with any temporary or permanent equipment or any
other device or contraption for the mounting or installation of
cannons, machine guns and other similar high caliber firearms,
including military type tanks, half trucks, scout trucks, armored
trucks, of any make or model, whether new, reconditioned,
rebuilt or remodelled: Provided, That banking or financial
institutions and all business firms may use not more than two
armored vehicles strictly for, and limited to, the purpose of
transporting cash, gold bullion or other valuables in connection
with their business from and to their place of business, upon
previous authority of the Commission. (Par. (m), Id.)
(s) Wearing of uniforms and bearing arms.
During the campaign period, on the day before and on election
day, any member of security or police organization of
government agencies, commissions, councils, bureaus, offices,
or government-owned or controlled corporations, or privately-
owned or operated security, investigative, protective or
intelligence agencies, who wears his uniform or uses his
insignia, decorations or regalia, or bears arms outside the
immediate vicinity of his place of work: Provided, That this
prohibition shall not apply when said member is in pursuit of a
person who has committed or is committing a crime in the
premises he is guarding; or when escorting or providing security
for the transport of payrolls, deposits, or other valuables; or
when guarding the residence of private persons or when
guarding private residences, buildings or offices: Provided,
further, That in the last case prior written approval of the
Commission shall be obtained. The Commission shall decide all
applications for authority under this paragraph within fifteen
days from the date of the filing of such application. (Par. (n), Id.)
During the same period, and ending thirty days thereafter any
member of the Armed Forces of the Philippines, special, forces,
home defense forces,barangay self-defense units and all other
para-military units that now exist or which may hereafter be
organized who wears his uniform or bears arms outside the
camp, garrison or barracks to which he is assigned or detailed
or outside their homes, in case of members of para-military
units, unless (1) the President of the Philippines shall have given
previous authority therefor, and the Commission notified thereof
in writing, or (2) the Commission authorizes him to do so, which
authority it shall give only when necessary to assist it in
maintaining free, orderly and honest elections, and only after
notice and hearing. All personnel of the Armed Forces
authorized by the President or the Commission to bear arms or
wear their uniforms outside their camps and all police and peace
officers shall bear their true name, rank and serial number, if
any, stitched in block letters on a white background on the left
breast of their uniform, in letters and numbers of a clearly legible
design at least two centimeters tall, which shall at all times
remain visible and uncovered. (Sec. 64, par. (a), BP 697)
During the election period, whenever the Commission finds it
necessary for the promotion of free, orderly, honest and
peaceful elections in a specific area, it shall confiscate or order
the confiscation of firearms of any member or members of the
Armed Forces of the Philippines, police forces, home defense
forces, barangay self-defense units, and all other para-military
units that now exist, or which may hereafter be organized, or any
member or members of the security or police organization,
government ministries, commissions, councils, bureaus, offices,
instrumentalities, or government-owned or controlled
corporations and other subsidiaries, or of any member or
members of privately owned or operated security, investigative,
protective or intelligence agencies performing identical or similar
functions. (Id.)
(t) Policemen and provincial guards acting as bodyguards
or security guards.
During the campaign period, on the day before and on election
day, any member of the city or municipal police force, any
provincial or sub-provincial guard, any member of the Armed
Forces of the Philippines, special forces, home defense
forces, barangay self-defense units and all other para-military
units that now exist or which may hereafter be organized who
acts as bodyguard or security guard of any public official,
candidate or any other person, and any of the latter who utilizes
the services of the former as bodyguard or security
guard: Provided, That, after due notice and hearing, when the
life and security of a candidate is in jeopardy, the Commission
is empowered to assign at the candidate's choice, any member
of the Philippine Constabulary or the police force of any
municipality within the province to act as his bodyguard or
security guard in a number to be determined by the Commission
but not to exceed three per candidate: Provided, however, That
when the circumstances require immediate action, the
Commission may issue a temporary order allowing the
assignment of any member of the Philippine Constabulary or the
local police force to act as bodyguard or security guard of the
candidate, subject to confirmation or revocation. (Par. (o),
Sec. 178, 1978 EC)
(u) Organization or maintenance of reaction forces, strike
forces, or other similar forces.
Any person who organizes or maintains a reaction force, strike
force or similar force during the election period.
The heads of all reaction forces, strike forces, or similar forces
shall, not later than forty-five days before the election, submit to
the Commission a complete list of all members thereof with such
particulars as the Commission may require. (Sec. 65, 1971 EC;
Sec. 64 (b) BP 697)
(v) Prohibition against release, disbursement or
expenditure of public funds.
Any public official or employee including barangay officials and
those of government-owned or controlled corporations and their
subsidiaries, who, during forty-five days before a regular
election and thirty days before a special election, releases,
disburses or expends any public funds for:
(1) Any and all kinds of public works, except the following:
(a) Maintenance of existing and/or completed public works
project: Provided, That not more than the average number of
laborers or employees already employed therein during the six-
month period immediately prior to the beginning of the forty-five
day period before election day shall be permitted to work during
such time: Provided, further, That no additional laborers shall be
employed for maintenance work within the said period of forty-
five days;
(b) Work undertaken by contract through public bidding held, or
by negotiated contract awarded, before the forty-five day period
before election:Provided, That work for the purpose of this
section undertaken under the so-called "takay" or "paquiao"
system shall not be considered as work by contract;
(c) Payment for the usual cost of preparation for working
drawings, specifications, bills of materials, estimates, and other
procedures preparatory to actual construction including the
purchase of materials and equipment, and all incidental
expenses for wages of watchmen and other laborers employed
for such work in the central office and field storehouses before
the beginning of such period: Provided, That the number of such
laborers shall not be increased over the number hired when the
project or projects were commenced; and
(d) Emergency work necessitated by the occurrence of a public
calamity, but such work shall be limited to the restoration of the
damaged facility.
No payment shall be made within five days before the date of
election to laborers who have rendered services in projects or
works except those falling under subparagraphs (a), (b), (c), and
(d), of this paragraph.
This prohibition shall not apply to ongoing public works projects
commenced before the campaign period or similar projects
under foreign agreements. For purposes of this provision, it shall
be the duty of the government officials or agencies concerned
to report to the Commission the list of all such projects being
undertaken by them.
(2) The Ministry of Social Services and Development and any
other office in other ministries of the government performing
functions similar to said ministry, except for salaries of
personnel, and for such other routine and normal expenses, and
for such other expenses as the Commission may authorize after
due notice and hearing. Should a calamity or disaster occur, all
releases normally or usually coursed through the said ministries
and offices of other ministries shall be turned over to, and
administered and disbursed by, the Philippine National Red
Cross, subject to the supervision of the Commission on Audit or
its representatives, and no candidate or his or her spouse or
member of his family within the second civil degree of affinity or
consanguinity shall participate, directly or indirectly, in the
distribution of any relief or other goods to the victims of the
calamity or disaster; and acd
(3) The Ministry of Human Settlements and any other office in
any other ministry of the government performing functions
similar to said ministry, except for salaries of personnel and for
such other necessary administrative or other expenses as the
Commission may authorize after due notice and hearing.
(w) Prohibition against construction of public works,
delivery of materials for public works and issuance of
treasury warrants and similar devices.
During the period of forty-five days preceding a regular election
and thirty days before a special election, any person who (a)
undertakes the construction of any public works, except for
projects or works exempted in the preceding paragraph; or (b)
issues, uses or avails of treasury warrants or any device
undertaking future delivery of money, goods or other things of
value chargeable against public funds. (Sec. 64 (d), BP 697)
(x) Suspension of elective provincial, city, municipal or
barangay officer.
The provisions of law to the contrary notwithstanding during the
election period, any public official who suspends, without prior
approval of the Commission, any elective provincial, city,
municipal or barangay officer, unless said suspension will be for
purposes of applying the "Anti-Graft and Corrupt Practices Act"
in relation to the suspension and removal of elective officials; in
which case the provisions of this section shall be inapplicable.
(Sec. 64 (o), Id.)
(y) On Registration of Voters:
(1) Any person who, having all the qualifications and none of the
disqualifications of a voter, fails without justifiable excuse to
register as a voter in an election, plebiscite or referendum in
which he is qualified to vote. (Par. (p), Sec. 178, 1978 EC)
(2) Any person who knowingly makes any false or untruthful
statement relative to any of the data or information required in
the application for registration. (Par. (q), Id.)
(3) Any person who deliberately imprints or causes the
imprinting of blurred or indistinct fingerprints on any of the copies
of the application for registration or on the voter's affidavit; or
any person in charge of the registration of voters who
deliberately or through negligence, causes or allows the
imprinting of blurred or indistinct fingerprints on any of the
aforementioned registration forms, or any person who tampers
with the fingerprints in said registration records. (Sec. 231
(5), 1971 EC)
(4) Any member of the board of election inspectors who
approves any application which on its face shows that the
applicant does not possess all the qualifications prescribed by
law for a voter; or who disapproves any application which on its
face shows that the applicant possesses all such qualifications.
(Par. (r), Sec. 178, 1978 EC)
(5) Any person who, being a registered voter, registers anew
without filing an application for cancellation of his previous
registration. (Par. (s), Id.)
(6) Any person who registers in substitution for another whether
with or without the latter's knowledge or consent. (Par. (t), Id.)
(7) Any person who tampers with or changes without authority
any data or entry in any voter's application for registration.
(Par. (u), Id.)
(8) Any person who delays, hinders or obstructs another from
registering. (Par. (v), Id.)
(9) Any person who falsely certifies or identifies another as
a bona fide resident of a particular place or locality for the
purpose of securing the latter's registration as a voter. (Par. (w),
Id.)
(10) Any person who uses the voter's affidavit of another for the
purpose of voting, whether or not he actually succeeds in voting.
(Par.(aa), Sec. 178, 1978 EC)
(11) Any person who places, inserts or otherwise includes, as
approved application for registration in the book of voters or in
the provincial or national central files of registered voters, the
application of any fictitious voter or any application that has not
been approved; or removes from, or otherwise takes out of the
book of voters or the provincial or national central files of
registered voters any duly approved voter's application, except
upon lawful order of the Commission, or of a competent court or
after proper cancellation as provided in Sections 122, 123, 124
and 125 hereof. (Par. (bb), Sec. 178, 1978 EC)
(12) Any person who transfers or causes the transfer of the
registration record of a voter to the book of voters of another
polling place, unless said transfer was due to a change of
address of the voter and the voter was duly notified of his new
polling place. (New) cd
(13) Any person who asks, demands, takes, accepts or
possesses, directly or indirectly, the voter's affidavit of another,
in order to induce the latter to withhold his vote, or to vote for or
against any candidate in an election or any issue in a plebiscite
or referendum. It shall be presumed prima facie that the asking,
demanding, taking, accepting, or possessing is with such intent
if done within the period beginning ten days before election day
and ending ten days after election day, unless the voter's
affidavit of another and the latter are both members of the same
family. (Par. (cc), Id.)
(14) Any person who delivers, hands over, entrusts, gives,
directly or indirectly his voter's affidavit to another in
consideration of money or other benefit or promises thereof, or
takes or accepts such voter's affidavit directly or indirectly, by
giving or causing the giving of money or other benefit or making
or causing the making of a promise thereof. (Par. (a), Subpar. 8,
Sec. 231, 1971 EC)
(15) Any person who alters in any manner, tears, defaces,
removes or destroys any certified list of voters. (Par. (dd),
Sec. 178, 1978 EC)
(16) Any person who takes, carries or possesses any blank or
unused registration form already issued to a city or municipality
outside of said city or municipality except as otherwise provided
in this Code or when directed by express order of the court or of
the Commission. (Par. (a), Subpar. 15, Sec. 231, 1971 EC)
(17) Any person who maliciously omits, tampers or transfers to
another list the name of a registered voter from the official list of
voters posted outside the polling place.
(z) On voting:
(1) Any person who fails to cast his vote without justifiable
excuse. (Par. (ee), Sec. 178, 1978 EC)
(2) Any person who votes more than once in the same election,
or who, not being a registered voter, votes in an election.
(Par. (ff), Id.)
(3) Any person who votes in substitution for another whether
with or without the latter's knowledge and/or consent. (Par. (gg),
Id.)
(4) Any person who, not being illiterate or physically disabled,
allows his ballot to be prepared by another, or any person who
prepares the ballot of another who is not illiterate or physically
disabled, with or without the latter's knowledge and/or consent
(Par. (a), Subpar. 24, Sec. 231, 1971 EC with amendments)
(5) Any person who avails himself of any means of scheme to
discover the contents of the ballot of a voter who is preparing or
casting his vote or who has just voted. (Par. (hh),
Sec. 178, 1978 EC)
(6) Any voter who, in the course of voting, uses a ballot other
than the one given by the board of election inspectors or has in
his possession more than one official ballot. (Par. (ii), Id.)
(7) Any person who places under arrest or detains a voter
without lawful cause, or molests him in such a manner as to
obstruct or prevent him from going to the polling place to cast
his vote or from returning home after casting his vote, or to
compel him to reveal how he voted. (Par. (jj), Id.)
(8) Any member of the board of election inspectors charged with
the duty of reading the ballot during the counting of votes who
deliberately omits to read the vote duly written on the ballot, or
misreads the vote actually written thereon or reads the name of
a candidate where no name is written on the ballot. (Par. (kk),
Id.) cdt
(9) Any member of the board of election inspectors charged with
the duty of tallying the votes in the tally board or sheet, election
returns or other prescribed form who deliberately fails to record
a vote therein or records erroneously the votes as read, or
records a vote where no such vote has been read by the
chairman. (Par. (ll), Id.)
(10) Any member of a board of election inspectors who has
made possible the casting of more votes than there are
registered voters.
(11) Any person who, for the purpose of disrupting or obstructing
the election process or causing confusion among the voters,
propagates false and alarming reports or information or
transmits or circulates false orders, directives or messages
regarding any matter relating to the printing of official ballots, the
postponement of the election, the transfer of polling place or the
general conduct of the election. (Par. (oo), Id.)
(12) Any person who, without legal authority, destroys,
substitutes or takes away from the possession of those having
legal custody thereof, or from the place where they are legally
deposited, any election form or document or ballot box which
contains official ballots or other documents used in the election.
(Par. (qq), Sec. 178, 1978 EC)
(13) Any person having legal custody of the ballot box
containing the official ballots used in the election who opens or
destroys said box or removes or destroys its contents without or
against the order of the Commission or who, through his
negligence, enables any person to commit any of the
aforementioned acts, or takes away said ballot box from his
custody. (Par. (rr), Id.)
(14) Any member of the board of election inspectors who
knowingly uses ballots other than the official ballots, except in
those cases where the use of emergency ballots is authorized.
(Par. (tt), Id.)
(15) Any public official who neglects or fails to properly preserve
or account for any ballot box, documents and forms received by
him and kept under his custody. (Par. (uu), Id.)
(16) Any person who reveals the contents of the ballot of an
illiterate or disabled voter whom he assisted in preparing a
ballot. (Par. (vv), Id.)
(17) Any person who, without authority, transfers the location of
a polling place. (Par. (ww), Id.)
(18) Any person who, without authority, prints or causes the
printing of any ballot or election returns that appears as official
ballots or election returns or who distributes or causes the same
to be distributed for use in the election, whether or not they are
actually used. (Par. (aaa), Id.)
(19) Any person who, without authority, keeps, uses or carries
out or causes to be kept, used or carried out, any official ballot
or election returns or printed proof thereof, type-form mould,
electro-type printing plates and any other plate, numbering
machines and other printing paraphernalia being used in
connection with the printing of official ballots or election returns.
(Par. (bbb), Id.)
(20) Any official or employee of any printing establishment or of
the Commission or any member of the committee in charge of
the printing of official ballots or election returns who causes
official ballots or election returns to be printed in quantities
exceeding those authorized by the Commission or who
distributes, delivers, or in any manner disposes of or causes to
be distributed, delivered, or disposed of, any official ballot or
election returns to any person or persons not authorized by law
or by the Commission to receive or keep official ballots or
election returns or who sends or causes them to be sent to any
place not designated by law or by the Commission. (Par. (ccc),
Id.)
(21) Any person who, through any act, means or device, violates
the integrity of any official ballot or election returns before or
after they are used in the election. (Par. (ddd), Id.)
(22) Any person who removes, tears, defaces or destroys any
certified list of candidates posted inside the voting booths during
the hours of voting. (New)
(23) Any person who holds or causes the holding of an election
on any other day than that fixed by law or by the Commission,
or stops any election being legally held. (Par. (pp), Id.) asia dc
(24) Any person who deliberately blurs his fingerprint in the
voting record. (New)
(aa) On Canvassing:
(1) Any chairman of the board of canvassers who fails to give
due notice of the date, time and place of the meeting of said
board to the candidates, political parties and/or members of the
board.
(2) Any member of the board of canvassers who proceeds with
the canvass of the votes and/or proclamation of any candidate
which was suspended or annulled by the Commission. (New)
(3) Any member of the board of canvassers who proceeds with
the canvass of votes and/or proclamation of any candidate in the
absence of quorum, or without giving due notice of the date, time
and place of the meeting of the board to the candidates, political
parties, and/or other members of the board. (New)
(4) Any member of the board of canvassers who, without
authority of the Commission, uses in the canvass of votes and/or
proclamation of any candidate any document other than the
official copy of the election returns. (New)
(bb) Common to all boards of election inspectors and
boards of canvassers:
(1) Any member of any board of election inspectors or board of
canvassers who deliberately absents himself from the meetings
of said body for the purpose of obstructing or delaying the
performance of its duties or functions. (Par. (zz), Sec. 178, 1978
EC)
(2) Any member of any board of election inspectors or board of
canvassers who, without justifiable reason, refuses to sign and
certify any election form required by this Code or prescribed by
the Commission although he was present during the meeting of
the said body. (Par. (yy), Id.)
(3) Any person who, being ineligible for appointment as member
of any board of election inspectors or board of canvassers,
accepts an appointment to said body, assumes office, and
actually serves as a member thereof, or any public officer or any
person acting in his behalf who appoints such ineligible person
knowing him to be ineligible. (Par. (xx), Id.)
(4) Any person who, in the presence or within the hearing of any
board of election inspectors or board of canvassers during any
of its meetings, conducts himself in such a disorderly manner as
to interrupt or disrupt the work or proceedings to the end of
preventing said body from performing its functions, either partly
or totally. (Par. (nn), Id.)
(5) Any public official or person acting in his behalf who relieves
any member of any board of election inspectors or board of
canvassers or who changes or causes the change of the
assignments of any member of said board of election inspectors
or board of canvassers without authority of the Commission.
(Par. (ss), Id.) cdt
(cc) On candidacy and campaign:
(1) Any political party which holds political conventions or
meetings to nominate its official candidates earlier than the
period fixed in this Code. (Par. (eee), Sec. 178, 1978 EC)
(2) Any person who abstracts, destroys or cancels any
certificate of candidacy duly filed and which has not been
cancelled upon order of the Commission. (Par. (fff), Id.)
(3) Any person who misleads the board of election inspectors by
submitting any false or spurious certificate of candidacy or
document to the prejudice of a candidate. (Par. (fff), Id.)
(4) Any person who, being authorized to receive certificates of
candidacy, receives any certificate of candidacy outside the
period for filing the same and makes it appear that said
certificate of candidacy was filed on time; or any person who, by
means of fraud, threat, intimidation, terrorism or coercion,
causes or compels the commission of said act. (New)
(5) Any person who, by any device or means, jams, obstructs
or interferes with a radio or television broadcast of any lawful
political program. (Par. (ggg), Id.)
(6) Any person who solicits votes or undertakes any
propaganda, on the day of election, for or against any candidate
or any political party within the polling place or within a radius of
thirty meters thereof. (Par. (hhh), Id.)
(dd) Other prohibitions:
(1) Any person who sells, furnishes, offers, buys, serves or takes
intoxicating liquor on the days fixed by law for the registration of
voters in the polling place, or on the day before the election or
on election day: Provided, That hotels and other establishments
duly certified by the Ministry of Tourism as tourist oriented and
habitually in the business of catering to foreign tourists may be
exempted for justifiable reasons upon prior authority of the
Commission: Provided, further, That foreign tourists taking
intoxicating liquor in said authorized hotels or establishments
are exempted from the provisions of this subparagraph. asia dc
(2) Any person who opens in any polling place or within a radius
of thirty meters thereof on election day and during the counting
of votes, booths or stalls of any kind for the sale, dispensing or
display of wares, merchandise or refreshments, whether solid or
liquid, or for any other purposes.
(3) Any person who holds on election day, fairs, cockfights,
boxing, horse races, jai-alai or any other similar sports. (Par. (iii),
Id.)
(4) Refusal to carry election mail matter. Any operator or
employee of a public utility or transportation company operating
under a certificate of public convenience, including government-
owned or controlled postal service or its employees or deputized
agents who refuse to carry official election mail matters free of
charge during the election period. In addition to the penalty
prescribed herein, such refusal shall constitute a ground for
cancellation or revocation of certificate of public convenience or
franchise. (Par. (kkk), Id.)
(5) Prohibition against discrimination in the sale of air time.
Any person who operates a radio or television station who
without justifiable cause discriminates against any political party,
coalition or aggroupment of parties or any candidate in the sale
of air time. In addition to the penalty prescribed herein, such
refusal shall constitute a ground for cancellation or revocation of
the franchise.
SECTION 262. Other election offenses. Violation of the
provisions, or pertinent portions, of the following sections of this
Code shall constitute election offenses: Sections 9, 18, 74, 75,
76, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 95, 96, 97, 98, 99, 100,
101, 102, 103, 104, 105, 106 107, 108, 109, 110, 111, 112, 122,
123, 127, 128, 129, 132, 134, 135, 145, 148, 150, 152, 172, 173,
174, 178, 180, 182, 184, 185, 186, 189, 190, 191, 192, 194, 195,
196, 197, 198, 202, 203, 204, 205, 206, 207, 208, 209, 210, 211,
212, 213, 214, 215, 216, 217, 218, 219, 220, 223, 229, 230, 231,
233, 234, 235, 236, 239 and 240.
CASES:
PEOPLE v. FERRER (VOTE BUYING)
[G.R. No. L-8957. April 29, 1957.]
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellant, vs.
ANDRES O. FERRER, defendant-appellee.
2. REVISED ELECTION LAW; DISTRIBUTION OF THINGS OF
VALUE DISTINGUISHED FROM ELECTIONEERING; WHO
MAY COMMIT THE VIOLATIONS. Causing cigarettes which
are things of value to be distributed, made unlawful by section
51 and punished by section 183 of the Revised Election Code,
cannot be deemed a necessary means to commit the lesser
violation of section 64 of the same law were the penalty attached
to it taken into consideration. The rule in the case of People vs.
Buenviaje, 47 Phil. 536, has no application to the case, because
there the defendant, who was not a duly licensed physician,
gave medical assistance and treatment to a certain person and
advertised himself and offered services as a physician by means
of cards and letterheads and advertisements in the newspapers,
the latter being a means to commit the former, and both
violations are punishable with the same penalty, whereas in the
present case causing cigarettes or things of value to be
distributed by the defendant to the people who attended a
political meeting is a violation distinct from that of electioneering
committed by a classified civil service officer or employee. The
former has no connection with the latter. A violation of Section
51 may be committed by any candidate, political committee,
voter or any other person, whereas a violation of Section 54 may
only be committed by a justice, judge, fiscal, treasurer or
assessor of any province, officer or employee of the Army,
member of the national, provincial, city, municipal or rural police
force, and classified civil service officer or employee.
DECISION
PADILLA, J p:
This is an appeal from an order of the Court of First Instance of
Pangasinan, the dispositive part of which states:
Five (5) days after receipt of a copy of this Order by the
prosecution, the information in this case shall be deemed
quashed and the bond for the provisional release of the accused
deemed cancelled and released, unless in the meantime the
prosecution amends the information so as to allege sufficient
facts constituting an offense under section 51 of our
Revised Election Code.
The information held defective by the trial court reads as follows:
The undersigned Provincial Fiscal of Pangasinan and the
Provincial Fiscals of Nueva Ecija and Batanes, on special detail
in Pangasinan by Administrative Orders Nos. 6 and 13, dated
January 12 and 27, 1954, respectively, of the Secretary of
Justice, accuse Andres G. Ferrer of the offense of violation of
Sections 51 and 54 in relation to Sections 183, 184 and 185 of
the Revised Election Code, committed as follows:
That on or about the 10th day of November, 1953,
(Election Day), and for sometime prior thereto, in the
municipality of Binmaley, province of Pangasinan, Philippines,
and within the jurisdiction of this Honorable Court, the above-
named accused, Andres G. Ferrer, being then and there a
Foreign Affairs Officer, Class III, Department of Foreign Affairs,
and a classified civil service officer, duly qualified and appointed
as such, did then and there wilfully, unlawfully, feloniously and
knowingly, in utter disregard and defiance of the specific and
several legal prohibitions on the subject, and in disregard of the
civil service rules and regulations, induce, influence, sway and
make the electors vote in favor of the candidates of the
Liberal Party in the following manner, to wit: (1) that
sometime before the elections on November 10, 1953, the said
accused, Andres G. Ferrer, delivered a speech during a political
rally of the Liberal Party in Barrio Caloocan Norte, Binmaley,
Pangasinan, inducing the electors to vote for the candidates of
the Liberal Party but more particularly for President Quirino and
Speaker Perez; that during said political meeting the said
accused caused to be distributed to the people who attended
said meeting cigarettes and pamphlets concerning the Liberal
Party; and (2) that the said accused, Andres G.Ferrer, sometime
prior to the last elections campaigned in the Barrio of Caloocan
Norte, of the said municipality of Binmaley, going from house to
house and induced the electors to whom he distributed sample
ballots of the Liberal Party to vote for the candidates of said
Party.
Contrary to sections 51 and 54 in relation to Sections 183, 184
and 185 of Republic Act No. 180, as amended. (Crim. Case No.
20320.).
The defendant moved to quash the information on the ground
that it charges more than one offense and that the facts alleged
in the information do not constitute a violation of either section
51 or section 54 of the Revised Election Code.
The trial court is of the opinion that causing cigarettes or
pamphlets concerning the Liberal Party to be distributed to
the people who attended a political meeting, charged against
the defendant, does not constitute a violation of section 51 of the
Revised Election Code, because it is not giving "food" for
tobacco is not food; nor does it constitute a violation of that part
of section 51 which makes unlawful the contributing or giving,
directly or indirectly, of money or things of value, because the
information merely charges the defendant with having caused
cigarettes, etc. to be distributed, and it does not state that the
cigarettes belonged to the defendant and were being given
away by him as his contribution for electioneering purposes.
True, cigarettes are not food, but they have and are of value and
the charge that the defendant caused cigarettes and pamphlets
concerning the Liberal Party to be distributed to the people who
attended a political meeting mentioned in the information is a
sufficient allegation that he gave or contributed things of value
for electioneering purposes. If the cigarettes did not belong to
him, that is a matter of defense. The trial court is also of the
opinion that the defendant is not a classified civil service officer
or employee, because to be such it is necessary that he be
assigned in the Department of Foreign Affairs under section 6,
Republic Act. No. 708 and if and when thus assigned he will for
purposes of civil service law and regulations, be considered as
first grade civil service eligible," and that even if the prosecution
could establish that the defendant at the time of the commission
of the violation charged was assigned in the Department of
Foreign Affairs under the section just mentioned, still such
assignment would not make him a classified civil service officer
embraced within the provisions of section 54 of the
Revised Election Code, for, according to the trial court, section
670 of the Revised Administrative Code provides that the
classified civil service embraces all persons not expressly
declared to be in the unclassified civil service and section 671
enumerates the persons embraced in the unclassified civil
service, and concludes that the defendant is in the unclassified
civil service under section 671, paragraph b, of the Revised
Administrative Code, because the defendant was appointed by
the President first as Foreign Affairs Officer, Class III,
Department of Foreign Affairs, and later on as Vice-Consul, the
last appointment having been duly confirmed by the
Commission on Appointments, and that the assignment or detail
in the Department of Foreign Affairs would make him by mere
legal fiction a first grade civil service eligible under section
6, Republic Act No. 708.
The reason advanced by the trial court are defense matters. The
allegation in the information that the defendant is "a classified
civil service officer, duly qualified and appointed as such," for
purposes of the motion to quash, is deemed admitted. The trial
court cannot go beyond the allegations of the information.
Nevertheless, the information is defective, because it charges
two violations of the Revised Election Code, to wit: section 51 to
which a heavier penalty is attached, and section 54 for which a
lighter penalty is provided. And the prosecuting attorneys had
that in mind when at the end of the information filed by them they
stated: "Contrary to Sections 51 and 54 in relation to Sections
183, 184 and 185 of Republic Act No. 180, as amended."
Causing cigarettes which are things of value to be
distributed, made unlawful by section 51 and punished by
section 183, cannot be deemed a necessary means to
commit the lesser violation of section 54 were the penalty
attached to it taken into consideration. The rule in the case
of Peoplevs. Buenviaje, 47 Phil., 536, cited and invoked by the
State, has no application to the case, because there the
defendant, who was not a duly licensed physician, gave medical
assistance and treatment to a certain person and advertised
himself and offered services as a physician by means of cards
and letterheads and advertisements in the newspapers, the
latter being a means to commit the former, and both violations
are punishable with the same penalty, whereas in the present
case causing cigarettes or things of value to be distributed by
the defendant to the people who attended a political meeting is
a violation distinct from that of electioneering committed by a
classified civil service officer or employee. The former has no
connection with the latter.
If the penalty provided for violation of sections 51 and 54 were
the same as in the case of the violation of the Medical Law, the
rule in the case of People vs. Buenviaje, supra, might be
invoked and applied.
That a violation of section 51 is distinct from that of section 54 is
further shown by the fact that a violation of the former may be
committed by any candidate, political committee, voter or any
other person, whereas a violation of the latter may only be
committed by a justice, judge, fiscal, treasurer or assessor of
any province, officer or employee of the Army, member of the
national, provincial, city, municipal or rural police force, and
classified civil service officer or employee.
Under the information in question, if the charges be proved, the
defendant may be convicted and sentenced under either section
or both. The rule enjoining the charging of two or more offenses
in an information has for aim to give the defendant the necessary
knowledge of the charge to enable him to prepare his defense.
The State should not heap upon the defendant two or more
charges which might confuse him in his defense.
The order appealed from is affirmed, not upon the grounds relied
upon by the trial court, but on the ground that the information
charges two different violations, without pronouncement as to
costs.
Bengzon, Montemayor, Reyes, A., Bautista Angelo, Labrador,
Concepcion, Reyes, J.B.L., Endencia and Felix, JJ., concur.
||| (People v. Ferrer, G.R. No. L-8957, [April 29, 1957], 101 PHIL
234-239)
MAPPALA v. JUDGE NUNEZ (DEADLY WEAPON)
FIRST DIVISION
[A.M. No. RTJ-94-1208. January 26, 1995.]
JACINTO MAPPALA, complainant, vs. JUDGE CRISPULO A.
NUEZ, Regional Trial Court, Branch 22, Cabagan,
Isabela, respondent.
SYLLABUS
1. LEGAL AND JUDICIAL ETHICS; JUDGES;
RESPONSIBILITY. The Court is not impressed with
respondents excuse that it took time to resolve the three
consolidated actions involving grave offenses. If respondent
required more time to resolve the cases, he is not without
recourse. He should have asked for more time to decide the
cases from this Court, giving the justification therefor.
2. CRIMINAL LAW; VIOLATION OF THE OMNIBUS ELECTION
CODE; ESTABLISHED IN CASE AT BENCH. In his decision,
respondent Judge found that Alejandro shot complainant herein
inside Precinct No. 2 located at the elementary school building
in Santo Tomas, Isabela, during the barangay elections on
March 28, 1989. Respondent also found that Alejandro was the
one who surrendered the gun. To respondent, the surrender of
the weapon was an implied admission that it was the one used
by Alejandro in shooting complainant. Inspite of all these
findings, respondent acquitted Alejandro of illegally carrying a
deadly weapon inside a precinct on the theory that the gun was
not seized from him while he was the inside the precinct.
According to respondent: ". . . With respect to the other accused
Alejandro Angoluan, although there is evidence to prove that he
shot the complainant Jacinto Mappala, the gun which he
allegedly used was surrendered by him two (2) days after the
incident and he was not apprehended in possession of the gun
within 100 meters radius of the precinct. This Court believes that
he should not be prosecuted (sic) in violation of Article 22,
Section 261, Subsection (p) of the Omnibus Election Code". To
support a conviction under Section 261(p) of the Omnibus
Election Code, it is not necessary that the deadly weapon should
have been seized from the accused while he was in the precinct
or within a radius of 100 meters therefrom. It is enough that the
accused carried the deadly weapon "in the polling place and
within a radius of one hundred meters thereof" during any of the
specified days and hours. After respondent himself had found
that the prosecution had established these facts, it is difficult to
understand why he acquitted Alejandro of the charge of violation
of Section 261(p) of the Omnibus Election Code.
DECISION
QUIASON, J p:
This is an administrative complaint filed by Jacinto Mappala
against Judge Crispulo A. Nuez, the presiding judge of the
Regional Trial Court, Branch 22, Cabagan, Isabela for gross
inefficiency, serious misconduct and violation of the code of
Judicial Ethics.
I
In 1989, the Provincial prosecutor of Isabela filed: (1) an
information against Alejandro Angoluan for illegal possession of
a firearm in violation of P.D. No. 1866 (Criminal Case No. 22-
954); (2) an information against Angoluan and five other co-
accused for frustrated murder (Criminal Case No. 22-955); and
(3) an information against Alejandro and Honorato Angoluan for
violation of the Omnibus Election Code (Criminal Case No. 22-
965). The complaining witness in Criminal Case No. 22-955 was
Jacinto Mappala, the complainant against respondent in this
administrative case. All the actions were consolidated and
assigned to the Regional Trial Court, Branch 22, Cabagan,
Isabela, presided by respondent.
On December 20, 1993, respondent rendered a consolidated
decision in the aforementioned cases, the dispositive portion of
which reads:cdasia
"WHEREFORE, in view of the foregoing facts and
considerations, in Criminal Case No. 955, this Court finds that
the accused ALEJANDRO ANGOLUAN is GUILTY beyond
reasonable doubt of the crime of Frustrated Homicide. The
prescribed penalty is six (6) years and one (1) day to twelve (12)
years ofprision mayor. Applying the Indeterminate Sentence
Law, the minimum should be taken from the penalty one (1)
degree lower which is prision correccional. He is therefore
sentenced to suffer imprisonment from TWO (2) YEARS and
FOUR (4) MONTHS of Prision Correccional as Minimum, to SIX
(6) YEARS and ONE (1) DAY of Prision Mayor as maximum and
to pay the complainant Jacinto Mappala the sum of P18,514.00
representing hospitalization and medical expenses; and to pay
the costs. The accused Honorato Angoluan, Bienvenido
Angoluan, Jr., Zaldy Angoluan, Teodoro Zipagan, Jr., and
Ramon Soriano are hereby ACQUITTED FOR INSUFFICIENCY
OF EVIDENCE.
"In Criminal Case No. 954, this Court finds the accused
ALEJANDRO ANGOLUAN "GUILTY" beyond reasonable doubt
of the crime of Illegal Possession of Firearms in Violation of
P.D. No. 1866.
"Presidential Decree No. 1866 is a special law. The penalty
imposed is governed by the Indeterminate Sentence Law,
Section 1 of which provides:
'Section 1. . . . If the offense is punished by other law, the court
shall sentence the accused to an indeterminate sentence, the
maximum of which shall not exceed the maximum fixed by law
and the minimum shall not be less than the minimum term
prescribed by the same.'cdasia
"The prescribed penalty for Illegal Possession of Firearms
under P.D. 1866 is Reclusion Temporal to Reclusion
Perpetua. The Court hereby sentences him to an imprisonment
from TWELVE (12) YEARS and ONE (1) DAY to SEVENTEEN
(17) YEARS, FOUR (4) MONTHS and ONE (1) DAY. The
firearm, Exhibit "H", is forfeited to the government.
"And in Criminal Case No. 965, for Violation of the Omnibus
Election Code against Alejandro Angoluan and Honorato
Angoluan, this Court finds both accused "NOT GUILTY" of the
crime and therefore are ACQUITTED" (Rollo, pp. 45-46).
The said decision is now on appeal before the Court of Appeals.
In his letter-complaint dated March 28, 1994, complainant
alleged that while the trial of the three cases was terminated in
December 1992 and the last pleading in the case, the
prosecution's memorandum, was submitted on May 27, 1993,
respondent rendered his decision only on December 20, 1993
(Rollo, p. 14).
Complainant charged respondent with: (1) gross inefficiency for
rendering the decision beyond the reglementary period of ninety
days or seven months after the cases were submitted for
decision; (2) serious misconduct for acquitting Alejandro
Angoluan of Violation of the Omnibus Election Code in Criminal
Case No. 22-965; and (3) violation of the Code of Judicial Ethics
for giving credence to the alibi of the accused Rizaldy Angoluan
in Criminal Case No. 22-955 in the absence of any corroborating
testimony of any witness (Rollo, pp. 10-11). Complainant
likewise accused respondent of accepting bribes in connection
with cases pending before him (Rollo, p. 11).
In his comment, respondent averred that the three actions
involved grave offenses that required more time in the
preparation of the decision. He alleged that he had to await the
memorandum of the public prosecutors who requested
additional time for the submission thereof (Rollo, p. 6).
He justified the acquittal of Alejandro of violation of the Election
Law in Criminal Case No. 965 on the ground that ". . . the firearm
was not taken from his person within the precinct but was taken
. . . more than 50 meters away from the precinct" (Rollo, p. 7).
Furthermore, he claimed that what the law considered as a
crime was the "carrying of firearms within (50) or 100 meters
away from the precinct. The firearm was not taken from the
accused within the 50 or 100 meters distance from the precinct
because in truth and in fact the said firearm was surrendered by
the accused two (2) days after the elections. The mistake in the
distance is merely a clerical error. But be it 50 meters or 100
meters, still the accused could not be convicted under the said
provision, specifically Section 261, Subsection (p) of Article XXII
of the Omnibus election Code" (Rollo, p. 7).
Respondent claimed that the charge of violation of the Code of
Judicial Ethics was utterly irresponsible and baseless, being the
handiwork of a disgruntled litigant with the purpose of
discrediting his reputation (Rollo, pp. 7-8).
Respondent denied having received bribes.
II
As to complainants charge of gross inefficiency, we find that
respondent rendered the decision beyond the reglementary
period of ninety days, reckoned from May 27, 1993, the date
when the last pleading was filed.
We are not impressed with respondents excuse that it took time
to resolve the three consolidated actions involving grave
offenses. If respondent required more time to resolve the cases,
he is not without recourse. He should have asked for more time
to decide the cases from this Court, giving the justification
therefor.
In Alfonso-Cortes v. Maglalang, 227 SCRA 482 (1993), we
emphasized "for the guidance of the judges manning our courts,
that cases pending before their salas must be decided within the
aforementioned period and that failure to observe said rule
constitutes a ground for administrative sanction against the
defaulting judge" (citing Marcelino v. Cruz, Jr., 121 SCRA 51
[1983]).
Respondent acquitted Alejandro Angoluan of violation
of Section 261 (p) of the Omnibus Election Code.
Said provision reads as follows:
"Deadly weapons. Any person who carries any deadly
weapon in the polling place and within a radius of one hundred
meters thereof during the days and hours fixed by law for the
registration of voters in the polling place, voting, counting of
votes, or preparation of the election returns. However, in cases
of affray, turmoil, or disorder, any peace officer or public officer
authorized by the Commission to supervise the election is
entitled to carry firearms or any other weapon for the purpose of
preserving and enforcing the law."
In his decision, respondent found that Alejandro shot
complainant herein inside Precinct No. 2 located at the
elementary school building in Santo Tomas, Isabela, during the
barangay elections on March 28, 1989. Respondent also found
that Alejandro was the one who surrendered the gun. To
respondent, the surrender of the weapon was an implied
admission that it was the one used by Alejandro in shooting
complainant. Inspite of all these findings, respondent acquitted
Alejandro of illegally carrying a deadly weapon inside a precinct
on the theory that the gun was not seized from him while he was
inside the precinct. According to respondent:
". . . With respect to the other accused Alejandro Angoluan,
although there is evidence to prove that he shot the complainant
Jacinto Mappala, the gun which he allegedly used was
surrendered by him two (2) days after the incident and he was
not apprehended in possession of the gun within 100 meters
radius of the precinct. This Court believes that he should not be
prosecuted (sic) in violation of Article 22, Section 261,
Subsection (p) of the Omnibus Election Code" (Rollo, p. 45;
Emphasis supplied).
To support a conviction under Section 261(p) of the Omnibus
Election Code, it is not necessary that the deadly weapon should
have been seized from the accused while he was in the precinct
or within a radius of 100 meters therefrom. It is enough that the
accused carried the deadly weapon "in the polling place and
within a radius of one hundred meters thereof" during any of the
specified days and hours. After respondent himself had found
that the prosecution had established these facts, it is difficult to
understand why he acquitted Alejandro of the charge of violation
of Section 261(p) of the Omnibus Election Code.
The charge of serious misconduct and violation of the Code of
Judicial Ethics in connection with the acquittal of Rizaldy
Angoluan after sustaining his defense of alibi pertains to
respondent's judicial functions in the appreciation and
evaluation of evidence. There is not enough evidence to set
aside said finding of fact.
For failure of complainant to substantiate his charge that
respondent accepted monetary favors in resolving the cases
pending before him, we dismiss the same. While the Judiciary is
in the process of cleansing its ranks, we do not favor complaints
based on mere hearsay.
WHEREFORE, respondent is FINED Five Thousand Pesos
(P5,000.00), to be paid within thirty days from receipt hereof,
with a WARNING that a repetition of the same or of acts calling
for disciplinary action will be dealt with more severely.
SO ORDERED.
Padilla, Davide, Jr., Bellosillo and Kapunan, JJ., concur.
||| (Mappala v. Nuez, A.M. No. RTJ-94-1208, [January 26,
1995], 310 PHIL 664-671)
PEOPLE v. REYES (TRANSFER OF GOVERNMENT
OFFICIAL)
SECOND DIVISION
[G.R. No. 115022. August 14, 1995.]
PEOPLE OF THE PHILIPPINES, petitioner, vs. HON.
WILFREDO D. REYES, Presiding Judge, RTC, Branch 36,
Manila and BUENAVENTURA C. MANIEGO, respondents.
The Solicitor General for plaintiff-appellee.
Romulo B. Macalintal for private respondent.
SYLLABUS
1. POLITICAL LAW; ELECTION LAW; BATAS PAMBANSA
BLG. 881; PROHIBITION AGAINST TRANSFER OF
OFFICERS AND EMPLOYEES IN THE CIVIL SERVICE
DURING THE ELECTION PERIOD; ELEMENTS THEREOF.
It ought to be immediately obvious that Section 261 (h) of B.P.
Blg. 881 does not per seoutlaw the transfer of a government
officer or employee during the election period. To be sure, the
transfer or detail of a public officer or employee is a prerogative
of the appointing authority. It is necessary to meet the
exigencies of public service sometimes too difficult to perceive
and predict. Without this inherent prerogative, the appointing
authority may not be able to cope with emergencies to the
detriment of public service. Clearly then, the transfer or detail of
a government officer or employee will not be penalized by
Section 261 (h) of B.P. Blg. 881 if done to promote efficiency in
the government service. Hence, Section 2 of Resolution No.
2333 provides that the COMELEC has to pass upon the reason
for the proposed transfer or detail, viz: "Any request for authority
to make or cause any transfer or detail of any officer or
employee in the civil service, including public school teachers,
shall be submitted in writing to the Commission indicating
therein the office and place to which the officer or employee is
proposed to be transferred or detailed, and stating the reason
therefor. Prescinding from this predicate, two (2) elements must
be established to prove a violation of Section 261 (h) of B.P. Blg.
881, viz: (1) The fact of transfer or detail of a public officer or
employee within the election period as fixed by the COMELEC,
and (2) the transfer or detail was effected without prior approval
of the COMELEC in accordance with its implementing rules and
regulations.
2. ID.; ID.; ID.; ID.; NOT VIOLATED IN CASE AT BAR. In the
case at bench, respondent Maniego transferred Ebio, then the
Customs Operations Chief, MICP to the Office of the Deputy
Collector of Customs for Operations as Special Assistant on
January 14, 1992. On this date, January 14, 1992, the election
period for the May 11, 1992 synchronized elections had already
been fixed to commence January 12, 1992 until June 10, 1992.
As aforestated, this election period had been determined by the
COMELEC in its Resolution No. 2314 dated November 20, 1991
and Resolution No. 2328 dated January 2, 1992. Nonetheless,
it was only in Resolution No. 2333 which took effect on January
15, 1992 that COMELEC promulgated the necessary rules on
how to get its approval on the transfer or detail of public officers
or employees during the election period. Before the effectivity of
these rules, it cannot be said that Section 261 (h) of B.P. Blg.
881, a penal provision, was already enforceable. Needless to
state, respondent Maniego could not be charged with failing to
secure the approval of the COMELEC when he transferred Ebio
on January 14, 1992 as on that day, the rules of the COMELEC
on the subject were yet inexistent.
DECISION
PUNO, J p:
This is a petition for certiorari and mandamus under Rule 65 of
the Revised Rules of Court to annul and set aside the orders
dated September 23, 1993 and January 25, 1994 of respondent
Judge Wilfredo D. Reyes, Regional Trial Court, Branch 36,
Manila in Criminal Case No. 93-120275.
The facts reveal that respondent Buenaventura C. Maniego,
Collector of Customs, Collection District II, Bureau of Customs,
Manila International Container Port (MICP), issued MICP
Customs Personnel Order No. 21-92 dated January 10, 1992
assigning Jovencio D. Ebio, Customs Operation Chief, MICP to
the Office of the Deputy Collector of Customs for Operations as
Special Assistant. 1 The actual transfer of Ebio was made on
January 14, 1992.
On May 4, 1992, Ebio filed with the Commission on Elections
(COMELEC) a letter-complaint protesting his transfer. Ebio
claimed that his new assignment violated COMELEC Resolution
No. 2333 and Section 261 (h) of B.P. Blg. 881, the Omnibus
Election Code, which prohibit the transfer of any employee in the
civil service 120 days before the May 11, 1992 synchronized
national and local elections.
After a preliminary investigation, the COMELEC filed on May 6,
1995 an information with the Regional Trial Court, Branch 36,
Manila charging respondent Maniego with a violation of Section
261 (h) of B.P. Blg. 881 committed as follows:
The basic law supposed to have been violated by respondent
Maniego is Section 261 (h) of B.P. Blg. 881 which reads as
follows:
"SECTION 261. Prohibited acts. The following shall be guilty
of any election offense:
xxx xxx xxx
(h) Transfer of officers and employees in the civil service. Any
public official who makes or causes any transfer or detail
whatever of any officer or employee in the civil service including
public school teachers, within the election period except upon
prior approval of the Commission." (Emphasis supplied).
The Constitution has fixed the election period for all elections to
commence ninety (90) days before the day of election and end
thirty (30) days thereafter, unless otherwise fixed in special
cases by the COMELEC. 5 For the May 11, 1992 synchronized
national and local elections, the COMELEC fixed a longer
election period of one hundred twenty (120) days before the
scheduled elections and thirty (30) days thereafter. It
issued Resolution No. 2314 on September 23, 1991 primarily
adopting therein a calendar of activities. In the process, it
designated January 12, 1992 to June 10, 1992 as the election
period, viz.:
"RESOLUTION NO. 2314
Pursuant to the powers vested in it by the Constitution of the
Republic of the Philippines, the Omnibus Election Code (B.P.
Blg. 881), and Republic Act No. 7166, the Commission on
Elections has RESOLVED to adopt, as it hereby adopts, the
following calendar of activities for the May 11, 1992 elections:

"That on or about January 14, 1992 which was within the Date/Period Activities
election period of the May 11, 1992 synchronized elections and
within the effectivity of the ban on transfer or detail of officers November 28, 1991 Start of the period of nomination
and employees in the civil service, in the City of Manila, and selection of official
Philippines, and within the jurisdiction of this Honorable Court, candidates for President, Vice-
the above-named accused, a public official, being the Collector President and Senators (165
of Customs VI, Manila International Container Port, Bureau of days, SEC. 6, R.A. 7166)
Customs, by taking advantage of his position and abuse of
January 2, 1992 Last day for appointment of members
authority, did, then and there, wilfully and unlawfully, transfer
of boards of election inspectors (Sec.
Jovencio D. Ebio, Chief of the Piers and Inspection Division,
164, OEC)
Manila International Container Port, Bureau of Customs, to
Special Assistant in the office of the Deputy Collector for (Subject to appointments which may
Operations, of the same office, without a prior written authority be extended later on account of lack of
from the Commission on Elections." 2 public school teachers and
disqualifications due to relationship to
Before the arraignment, respondent Maniego moved to quash
candidates.)
the information on the ground that the facts alleged do not
constitute an offense. He contended that the transfer of Ebio on January 12, 1992 ELECTION PERIOD
January 14, 1992 did not violate B.P. Blg. 881 because on that (Sunday) to (120 days, per Res. No. ___ )
date the act was not yet punishable as an election offense. It June 10, 1992
purportedly became punishable only on January 15, 1992, the (Wednesday) Bans on carrying of firearms,
date of effectivity of COMELEC Resolution No. 2333 suspension of elective local officials,
implementing Section 261 (h) of B.P. Blg. 881. Petitioner, organization of strike forces, etc.
through the COMELEC, opposed the motion to quash. (Sec. 261, OEC)." 6
On September 23, 1993, the trial court granted private xxx xxx xxx
respondent's motion to quash and dismissed Criminal Case No.
93-120275. 3 Petitioner moved to reconsider but the same was On January 2, 1992, the COMELEC promulgated Resolution
denied on January 25, 1995. 4 Petitioner forthwith elevated the No. 2328 for the sole and specific purpose of fixing for the said
case to this Court on a pure question of law. elections the election period from January 12, 1992 to June 10,
1992. 7 This Resolution was published in the January 5, 1992
We affirm.
issue of the Manila Times and the January 6, 1992 issue of
the Philippine Times Journal. 8
On January 2, 1992, the COMELEC also passed Resolution No.
2333 which promulgated the necessary rules to enforce Section
261 of B.P. Blg. 881. We quote its pertinent portions:
"RESOLUTION NO 2333
WHEREAS, the Omnibus Election Code of the Philippines
provides:
SECTION 261. Prohibited acts. The following shall be guilty
of an election offense:
xxx xxx xxx
(h) Transfer of officers and employees in the civil service. Any
public official who makes or causes any transfer or detail
whatever of any officer or employee in the civil service including
public school teachers, within the election period except upon
prior approval of the Commission.
xxx xxx xxx
WHEREAS, to enforce effectively the foregoing provisions,
there is need to promulgate the necessary rules for the guidance
of all concerned;
NOW, THEREFORE, pursuant to the power vested in it by the
Constitution, the Omnibus Election Code, Republic Act Nos.
6646 and 7166 and other election laws, the Commission has
RESOLVED to promulgate, as it hereby promulgates, the
following rules to implement the provisions of Sec. 261,
subsections (g), (h) and (x) of the Omnibus Election Code.
xxx xxx xxx
SECTION 2. Request for authority of the Commission. Any
request for authority to make or cause any transfer or detail of
any officer or employee in the civil service, including public
school teachers, shall be submitted in writing to the Commission
indicating therein the office and place to which the officer or
employee is proposed to be transferred or detailed, and stating
the reason therefor.
xxx xxx xxx
SECTION 6. Effectivity. This resolution shall take effect on
the seventh day after its publication in two (2) newspapers of
general circulation in the Philippines.
xxx xxx xxx
Resolution No. 2333 was published in the January 8,
1992 issues of Malaya and the Manila Standard. Hence, it took
effect on January 15, 1992, the seventh day after its publication.
It is undeniable that the transfer of complainant Ebio on January
14, 1992 was made during the election period. The question,
however, is whether this transfer ipso facto makes respondent
Maniego liable for an election offense under Section 261 (h)
of B.P. Blg. 881.
We rule in the negative.
We start with the constitutional injunction that no officer or
employee in the civil service shall engage, directly or indirectly,
in any electioneering or partisan political campaign. 9 This
prohibition is reiterated in the Administrative Code of
1987. 10 Section 261 (h) of B.P. Blg. 881 implements this
constitutional prohibition.
It ought to be immediately obvious that Section 261 (h) of B.P.
Blg. 881 does not per se outlaw the transfer of a government
officer or employee during the election period. To be sure, the
transfer or detail of a public officer or employee is a prerogative
of the appointing authority. 11 It is necessary to meet the
exigencies of public service sometimes too difficult to perceive
and predict. Without this inherent prerogative, the appointing
authority may not be able to cope with emergencies to the
detriment of public service. Clearly then, the transfer or detail of
a government officer or employee will not be penalized by
Section 261 (h) of B.P. Blg. 881 if done to promote efficiency in
the government service. Hence, Section 2 of Resolution No.
2333 provides that the COMELEC has to pass upon the reason
for the proposed transfer or detail, viz: "Any request for authority
to make or cause any transfer or detail of any officer or
employee in the civil service, including public school teachers,
shall be submitted in writing to the Commission indicating
therein the office and place to which the officer or employee is
proposed to be transferred or detailed, and stating the reason
therefor." 12
Prescinding from this predicate, two (2) elements must be
established to prove a violation of Section 261 (h) of B.P. Blg.
881, viz: (1) The fact of transfer or detail of a public officer or
employee within the election period as fixed by the COMELEC,
and (2) the transfer or detail was effected without prior approval
of the COMELEC in accordance with its implementing rules and
regulations.
In the case at bench, respondent Maniego transferred Ebio, then
the Customs Operation Chief, MICP to the Office of the Deputy
Collector of Customs for Operations as Special Assistant on
January 14, 1992. On this date, January 14, 1992, the election
period for the May 11, 1992 synchronized elections had already
been fixed to commence January 12, 1992 until June 10, 1992.
As aforestated, this election period had been determined by the
COMELEC in its Resolution No. 2314 dated November 20, 1991
and Resolution No. 2328 dated January 2, 1992. Nonetheless,
it was only in Resolution No. 2333 which took effect on January
15, 1992 that COMELEC promulgated the necessary rules on
how to get its approval on the transfer or detail of public officers
or employees during the election period. Before the effectivity of
these rules, it cannot be said that Section 261 (h) of B.P. Blg.
881, a penal provision, was already enforceable. Needless to
state, respondent Maniego could not be charged with failing to
secure the approval of the COMELEC when he transferred Ebio
on January 14, 1992 as on that day, the rules of the COMELEC
on the subject were yet inexistent.
IN VIEW WHEREOF, the petition is dismissed and the orders
dated September 23, 1993 and January 25, 1995 of the
respondent judge in Criminal Case No. 93-120275 are affirmed.
SO ORDERED.
Narvasa, C .J ., Regalado, Mendoza, and Francisco,
JJ ., concur.
||| (People v. Reyes, G.R. No. 115022, [August 14, 1995], 317
PHIL 391-399)
CHARACTERISTICS OF ELECTION OFFICES:
1. Jurisdiction over election cases
SECTION 268. Jurisdiction of courts.
The regional trial court shall have the exclusive original
jurisdiction to try and decide any criminal action or proceedings
for violation of this Code, except those relating to the offense of
failure to register or failure to vote which shall be under the
jurisdiction of the metropolitan or municipal trial courts. From the
decision of the courts, appeal will lie as in other criminal cases.
(Sec. 184, Id.)
2. Preferential Disposition of election offenses
SECTION 269. Preferential disposition of election offenses.
The investigation and prosecution of cases involving violations
of the election laws shall be given preference and priority by the
Commission on Elections and prosecuting officials. Their
investigation shall be commenced without delay, and shall be
resolved by the investigating officer within five days from its
submission for resolution. The courts shall likewise give
preference to election offenses over all other cases, except
petitions for writ of habeas corpus. Their trial shall likewise be
commenced without delay, and shall be conducted continuously
until terminated, and the case shall be decided within thirty days
from its submission for decision. (P.D. 1676)
3. Good faith is not a defense
4. Prescriptive Period
SECTION 267. Prescription.
Election offenses shall prescribe after five years from the date
of their commission. If the discovery of the offense be made in
an election contest proceedings, the period of prescription shall
commence on the date on which the judgment in such
proceedings becomes final and executory. (Sec. 185, Id.)
CASES:
1. DE JESUS v. PEOPLE (JURISDICTION)
EN BANC
[G.R. No. L-61998. February 22, 1983.]
ROGELIO DE JESUS, petitioner, vs. PEOPLE OF THE
PHILIPPINES, et al., respondents.
Jaime G. Fortes for petitioner.
The Solicitor General for respondents.
SYLLABUS
1. ADMINISTRATIVE LAW; COMELEC; CONSTITUTIONAL
GRANT OF POWER TO ENFORCE AND ADMINISTER LAWS
RELATIVE TO THE CONDUCT OF ELECTION AND TO
INVESTIGATE AND PROSECUTE ELECTION OFFENSES.
The grant to the COMELEC of the power, among others, to
enforce and administer all laws relative to the conduct of election
and the concomitant authority to investigate and prosecute
election offenses is not without compelling reason. The evident
constitutional intendment in bestowing this power to the
COMELEC is to insure the free, orderly and honest conduct of
elections, failure of which would result in the frustration of the
true will of the people and make a mere idle ceremony of the
sacred right and duty of every qualified citizen to vote. To divest
the COMELEC of the authority to investigate and prosecute
offenses committed by public officials in relation to their office
would thus seriously impair its effectiveness in achieving this
clear constitutional mandate.
2. ID.; ID.; BESTOWAL UPON COMELEC AND COURT OF
FIRST INSTANCE TO INVESTIGATE, PROSECUTE AND
HEAR ELECTION OFFENSES, CATEGORICAL. From a
careful scrutiny of the constitutional provisions relied upon by
the Sandiganbayan, We perceive neither explicit nor implicit
grant to it and its prosecuting arm, the Tanodbayan, of the
authority to investigate, prosecute and hear election offenses
committed by public officers in relation to their office, as
contradistinguished from the clear and categorical bestowal of
said authority and jurisdiction upon the COMELEC and the
courts of first instance under Sections 182 and 184,
respectively, of the Election Code of 1978.
3. CONSTITUTIONAL LAW; STATUTORY CONSTRUCTION;
"AS MAY BE DETERMINED BY LAW," CONSTRUED. Under
the Constitution, the Sandiganbayan shall have jurisdiction over
". . .offenses committed by public officers . . . relation to their
office as may be determined by law" (Sec. 5, Art. XIII):while the
Office of the Tanodbayan shall "receive and investigate
complaints relative to public office." (Sec. 6, Art. XIII) The
clause, "as may be determined by law" is, to Our mind, imbued
with grave import. It called for a legislation that would define and
delineate the power and jurisdiction of both the Tanodbayan and
the Sandiganbayan, as what, in fact had been provided for in
Presidential Decree Nos. 1606 and 1607, creating the said
entities. Thus, under Section 4 of P.D. No. 1606, the
Sandiganbayan shall have jurisdiction over: (c) Other crimes or
offenses committed by public officers or employees, including
those employed in government-owned or controlled
corporations, in relation to their office." Plainly, the above quoted
paragraph (c) is but a re-statement of the constitutional provision
relating to the Sandiganbayan. It is also to be noted that it is
phrased in terms so broad and general that it cannot be
legitimately construed to vest said entity with exclusive
jurisdiction over election offenses committed by public officers
in relation to their office. Neither can it be interpreted to impliedly
repeal the exclusive and original jurisdiction granted by Section
184 of the Election Code of 1978 to the court of first instance to
hear and decide all election offenses, without qualification as to
the status of the accused.
4. ID.; STATUTORY CONSTRUCTION; SPECIFIC STATUTE
PREVAIL OVER GENERAL LAW. Apart from the fact that
repeals by implication are not favored, it is noted that while
Section 184 of the Election Code deals specifically with election
offenses, Section 4(c) of P. D. 1606 speaks generally of "other
crimes or offenses committed by public officers. . . in relation to
their office." Needless to state, as between specific and general
statute, the former must prevail since it evinces the legislative
intent more clearly than a general statute does. And where a
reconciliation between the statute is possible, as in the case at
bar, the former should be deemed an exception to the latter.
DECISION
ESCOLIN, J p:
The question of law posed for determination in this petition for
review on certiorari of the resolution of the Sandiganbayan may
be propounded thus: Which of these entities have the power to
investigate, prosecute and try election offenses committed by a
public officer in relation to his office the Commission on
Elections and the Court of First Instance [now the regional trial
court] or the Tanodbayan and the Sandiganbayan?
After the local elections of January 18, 1980, Ananias Hibo,
defeated candidate of the Nacionalista Party for the office of
mayor of the Municipality of Casiguran, Sorsogon filed with the
COMELEC a complaint charging petitioner Rogelio de Jesus,
then COMELEC registrar of Casiguran, with violation of the
1978 Election Code. Copy of the complaint was sent to the
Ministry of Justice which endorsed the same to the Provincial
Fiscal of Sorsogon for investigation. Noting that petitioner was
being charged in relation to his office, Asst. Fiscals Manuel
Genova and Delfin Tarog, in their capacity as deputized
Tanodbayan prosecutors, conducted an investigation.
Thereafter Fiscal Genova issued a resolution, finding the
existence of a prima facie case against petitioner for violation of
section 89 1 and sub-sections [x] 2 and [mm] 3 of Section 178
of the Election Code of 1978. After approval thereof by the
Tanodbayan, the following information, dated January 27, 1982,
was filed before the Sandiganbayan: llcd
"That on or about January 30, 1980 and sometime thereafter to
February 6, 1980, in the Municipality of Casiguran, Province of
Sorsogon, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused while discharging
the Office of the Election Registrar in the Municipality of
Casiguran, Province of Sorsogon, taking advantage and
abusing his official position, did then and there willfully,
unlawfully and feloniously by reason of his being a registrar
knowingly registered persons in order to vote on January 30,
1981 being an election day and at the same time issuing
identification cards during election day, thereby violating the
provision of the Election Code of 1978 and at the same time
tampering with the election reports by making it appear that
10,727 persons were the total number of registered voters for
the election of January 30, 1980, when in truth and in fact the
actual total number of voters as reported on January 27, 1980
by the accused was only 10,532 but then changed to 10,727,
thereby violating the provisions of Section '89' and Section. '178'
under Article XVI specifically sub-section 'X' and sub-section
'MM', which is a violation of the Election Code of 1978 to the
erosion of public faith and confidence."
The case, docketed as SB Criminal Case No. 5054, was raffled
to the Second Division of the Sandiganbayan.
Petitioner filed a motion to quash the information, contending
that neither the Tanodbayan nor the Sandiganbayan has the
authority to investigate, prosecute and try the offense.
xxx xxx xxx
[x] Any election registrar or any person acting in his behalf who
issues or causes the issuance of a voter's certificate of
registration or cancels or causes the cancellation thereof in
violation of the provisions of this Code.
xxx xxx xxx
[mm] Any person who, without authority, acts as, or assumes or
performs any function of a member of the election
committee, or the board of canvassers, or deputy of
representative of the Commission."
charged in the information, the same being an election offense
over which the power to investigate, prosecute and try is lodged
by law in the COMELEC and the Court of First Instance. In its
opposition, the prosecution maintained the Tanodbayan's
exclusive authority to investigate and prosecute offenses
committed by public officers and employees in relation to their
office, and consequently, the Sandiganbayan's jurisdiction to try
and decide the charges against petitioner.
The COMELEC, having learned of the pendency of the case,
entered its appearance as amicus curiae, and through its law
department manager, Atty. Zoilo Gomez, Jr., submitted a
memorandum supporting petitioner's stand. 4
On August 13, 1982, the Sandiganbayan issued the questioned
resolution denying the motion to quash. Petitioner's motion for
reconsideration was likewise denied. Hence, this petition for
review on certiorari. prLL
The legal question posed being one of first impression, this,
Court resolved to give due course to the petition, treating the
same as an original petition for certiorari under Rule 65 of the
Rules of Court, the proper mode by which relief from the
resolution of the Sandiganbayan could be obtained from this
Tribunal.
Petitioner and respondents rely on different provisions of the
1973 Constitution as bases for their respective contentions.
Petitioner invokes Section 2 of Article XII[c] of the
1973 Constitution which vests upon the COMELEC the power
"to enforce and administer all laws relative to the conduct of
elections," and its implementing legislation, Section 182 of the
1978 Election Code, which provides the following:
"Section 182 Prosecution. The Commission shall, thru its duly
authorized legal officer, have the power to conduct preliminary
investigation of all election offenses punishable under this Code
and to prosecute the same. The Commission may avail of the
assistance of other prosecuting arms of the government."
Petitioner further cites Section 184 of the same Code which
invests the court of first instance with "exclusive original
jurisdiction to try and decide any criminal action or proceedings
for violation of this Code, except those relating to the offense of
failure to register or failure to vote which shall be under the
jurisdiction of the city or municipal courts. . . ." The Solicitor
General supports the petitioner's views. 5
Upon the other hand, the Sandiganbayan, in its resolution of
August 13, 1982, 6 asserts its jurisdiction over Criminal Case
No. 5054 on the authority of Section 5, Article XIII of
the Constitution, which mandated the creation by the Batasan
Pambansa of "a special court, to be known as Sandiganbayan,
which shall have jurisdiction over criminal and civil cases
involving graft and corrupt practices, and such other offenses
committed by public officers and employees, including those in
government-owned and controlled corporations, in relation to
their office as may be determined by law."
To the Sandiganbayan, as set forth in the challenged resolution,
". . . the key phrase in the determination as to which of the
Sandiganbayan or the regular courts of first instance should take
cognizance of an election offense, is the phrase, 'in relation to
their office'." Thus, it would distinguish between election
offenses committed by public officers and employees in relation
to their office and those committed not in relation to their office,
in this manner:
"If the election offense is committed by a public officer or
employee NOT in relation to their office, generally, jurisdiction
will be assumed by the regular courts. If, on the other hand, the
offense was committed by a public officer or employee in relation
to their office, then there is no other tribunal vested with
jurisdiction to try such offense but this court, in consonance with
the mandate of the Constitution that the Sandiganbayan has
jurisdiction, 'over . . . offenses committed by public officers and
employees in relation to their office.'"
We find the position of the Sandiganbayan devoid of merit. Cdpr
The grant to the COMELEC of the power, among others, to
enforce and administer all laws relative to the conduct of election
and the concomittant authority to investigate and prosecute
election offenses is not without compelling reason. The evident
constitutional intendment in bestowing this power to the
COMELEC is to insure the free, orderly and honest conduct of
elections, failure of which would result in the frustration of the
true will of the people and make a mere idle ceremony of the
sacred right and duty of every qualified citizen to vote. To divest
the COMELEC of the authority to investigate and prosecute
offenses committed by public officials in relation to their office
would thus seriously impair its effectiveness in achieving this
clear constitutional mandate.
From a careful scrutiny of the constitutional provisions relied
upon by the Sandiganbayan, We perceive neither explicit nor
implicit grant to it and its prosecuting arm, the Tanodbayan, of
the authority to investigate, prosecute and hear election
offenses committed by public officers in relation to their office,
as contradistinguished from the clear and categorical bestowal
of said authority and jurisdiction upon the COMELEC and the
courts of first instance under Sections 182 and 184,
respectively, of the Election Code of 1978.
Under the Constitution, the Sandiganbayan shall have
jurisdiction over ". . . offenses committed by public officers . . . in
relation to their office as may be determined by law" [Sec. 5, Art.
XIII]; while the Office of the Tanodbayan shall "receive and
investigate complaints relative to public office." [Sec. 6, Art. XIII].
The clause, "as may be determined by law" is, to Our mind,
imbued with grave import. It called for a legislation that would
define and delineate the power and jurisdiction of both the
Tanodbayan and the Sandiganbayan, as what, in fact had been
provided for in Presidential Decree Nos. 1606 and 1607,
creating the said entities. Cdpr
Thus, under Section 4 of P.D. No. 1606, the Sandiganbayan
shall have jurisdiction over:
"[a] Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices
Act, and Republic Act No. 1379;
[b] Crimes committed by public officers and employees,
including those employed in government-owned or
controlled corporations, embraced in Title VII of the
Revised Penal Code, whether simple or complexed with
other crimes; and,
[c] Other crimes or offenses committed by public officers or
employees, including those employed in government-owned
or controlled corporations, in relation to their office."
Plainly, the above quoted paragraph [c] is but a re-statement of
the constitutional provision relating to the Sandiganbayan. It is
also to be noted that it is phrased in terms so broad and general
that it cannot be legitimately construed to vest said entity with
exclusive jurisdiction over election offenses committed by public
officers in relation to their office. Neither can it be interpreted to
impliedly repeal the exclusive and original jurisdiction granted by
Section 184 of the Election Code of 1978 to the court of first
instance to hear and decide all election offenses, without
qualification as to the status of the accused.
Apart from the fact that repeals by implication are not favored, it
is noted that while Section 184 of the Election Code deals
specifically with election offenses, Section 4[c] of P.D. No.
1606 speaks generally of "other crimes or offenses committed
by public officers . . . in relation to their office." Needless to state,
as between specific and general statute, the former must prevail
since it evinces the legislative intent more clearly than a general
statute does. 7And where a reconciliation between the statute is
possible, as in the case at bar, the former should be deemed an
exception to the latter. 8
The same principle of statutory construction should be applied
with respect to the powers vested upon the COMELEC and the
Tanodbayan in so far as election offenses are concerned. LLpr
Moreover, as aptly observed by the COMELEC as well as the
Solicitor General, splitting the jurisdiction over election offenses
would serve no beneficial purpose but would rather spawn much
controversy "complaints about unequal protection, about
inconsistent decisions, etc. (which are) not conducive to a fair
and speedy administration of justice." [p. 17, Comment, Solicitor
General].
WHEREFORE, the resolution of the Sandiganbayan Second
Division dated August 13, 1982 is hereby set aside and Criminal
Case No. 5054, entitled "People of the Philippines versus
Rogelio de Jesus" is ordered dismissed. The COMELEC is
hereby directed to forthwith conduct an investigation, and if the
evidence so warrants, to prosecute the complaint against
petitioner before the proper court of first instance. No costs.
SO ORDERED.
3. PEOPLE v. BAYONA (GOOD FAITH)
EN BANC
[G.R. No. 42288. February 16, 1935.]
THE PEOPLE OF THE PHILIPPINE ISLANDS, plaintiff-
appellee, vs. CORNELIO BAYONA, defendant-appellant.
Gervasio Diaz for appellant.
Solicitor-General Hilado for appellee.
SYLLABUS
1. ELECTIONS; CARRYING OF ARMS WITHIN FIFTY
METERS FROM A POLLING PLACE. The law which the
defendant violated is a statutory provision, and the intent with
which he violated it is immaterial. It may be conceded that the
defendant did not intend to intimidate any elector or to violate
the law in any other way, but when he got out of his automobile
and carried his revolver inside of the fence surrounding the
polling place, he committed the act complained of, and he
committed it willfully. The act prohibited by the Election Law was
complete. The intention to intimidate the voters or to interfere
otherwise with the election is not made an essential element of
the offense. Unless an offender actually makes use of his
revolver, it would be extremely difficult, if not impossible, to
prove that he intended to intimidate the voters.
2. ID.; ID.; INTENT TO COMMIT A CRIME AND INTENT TO
PERPETRATE THE ACT. The rule is that in acts mala in se
there must be a criminal intent, but in those mala prohibita it is
sufficient if the prohibited act was intentionally done. "Care must
be exercised in distinguishing the difference between the intent
to commit the crime and the intent to perpetrate the act. . . ."
(U.S. vs. Go Chico, 14 Phil., 128.)
DECISION
VICKERS, J p:
This is an appeal from a decision of Judge Braulio Bejasa in the
Court of First Instance of Capiz, finding the defendant guilty of a
violation of section 416 of the Election Law and sentencing him
to suffer imprisonment for thirty days and to pay a fine of P50,
with subsidiary imprisonment in case of insolvency, and to pay
the costs.
The facts as found by the trial judge are as follows:
"A eso de las once de la maana del dia 5 de junio de 1934,
mientras se celebrabanlas elecciones generales en el precinto
electoral numero 4, situado en el Barrio de Aranguel del
Municipio de Pilar, Provincia de Capiz, el aqui acusado fue
sorprendido por Jose E. Desiderio, que era entonces el
representante del Departamento del Interior para inspeccionar
las elecciones generales en la Provincia de Capiz, y por el
comandante de la Constabularia F. B. Agdamag que iba en
aquella ocasion con el citado Jose E. Desiderio, portando en su
cinto el revolver Colt de calibre 32, No. 195382, Exhibit A, dentro
del cerco que rodeaba el edificio destinado para el citado
colegio electoral numero 4 y a una distancia de 22 metros del
referido colegio electoral. Inmediatamente Jose E. Desiderio se
incauto del revolver en cuestion.
"La defensa, por medio del testimonio de Jose D. Benliro y de
Dioscoro Buenvenida, trato de establecer que el aqui acusado
paro en la calle que daba frente al colegio electoral numero 4 a
invitacion de dicho Jose D. Benliro y con el objeto de suplicarle
al mencionado acusado para llevar a su casa a los electores del
citado Jose D. Benliro que ya habian terminado de votar, y que
cuando llegaron Jose E. Desiderio y el comandante F. B.
Agdamag, el aqui acusado estaba en la calle. Desde el colegio
electoral hasta el sitio en que, segun dichos testigos, estaba el
acusado cuando se le quito el revolver Exhibit A, hay una
dustabcua de 27 metros."
Appellant's attorney makes the following assignments of error:
"1. El Juzgado a quo erro al declarar que el apelante fue
sorprendido con revolver dentro del cerco de la casa escuela
del Barrio de Aranguel, Municipio de Pilar, que fue habilitado
como colegio electoral.
2. El Juzgado a quo erro al declarar al apelante culpable de la
infraccion de la Ley Electoral querellada y, por consiguiente, al
condenarle a prision y multa."
As to the question of fact raised by the first assignment of error,
it is sufficient to say that the record shows that the record shows
that both Jose E. Desiderio, a representative of the Department
of the Interior, and Major Agdamag of the Philippine
Constabulary, who had been designated to supervise the
elections in the Province of Capiz, testified positively that the
defendant was within the fence surrounding the polling place
when Desiderio took possession of the revolver the defendant
was carrying. This also disposes of that part of the argument
under the second assignment of error based on the theory that
the defendant was in a public road, where he had a right to be,
when he was arrested. The latter part of the argument under the
second assignment of error is that if it be conceded that the
defendant went inside of the fence, he is nevertheless not guilty
of a violation of the Election Law, because he was called by a
friend and merely approached him to find out what he wanted
and had no interest in theelection; that there were
many people in the public road in front of the polling place, and
the defendant could not leave his revolver in his automobile,
which he himself was driving, without running the risk of losing
it and thereby incurring in a violation of the law.
As to the contention that the defendant could not leave his
revolver in his automobile without the risk of losing it because
he was alone, it is sufficient to say that under the circumstances
it was not necessary for the defendant to leave his automobile
merely because somebody standing near the polling place had
called him, nor does the record show that it was necessary for
the defendant to carry arms on that occasion.
The Solicitor-General argues that since the Government does
not especially construct buildings for electoral precincts but
merely utilizes whatever building there may be available, and
all election precincts are within fifty meters from some road, a
literal application of the law would be absurd, because members
of the police force or Constabulary in pursuit of a criminal would
be included in that prohibition and could not use the road in
question if they were carrying firearms; that people living in the
vicinity of electoral precincts would be prohibited from cleaning
or handling their firearms within their own residences on
registration and election days;.
That the object of the Legislature was merely to prohibit the
display of firearms with intention to influence in any way the free
and voluntary exercise of suffrage;.
That if the real object of the Legislature was to insure the free
exercise of suffrage, the prohibition in question should only be
applied when the facts reveal that the carrying of the firearms
was intended for the purpose of using them directly or indirectly
to influence the free choice of the electors (citing the decision of
this court in the case of People vs. Urdeleon [G. R. No. 31536,
promulgated November 20, 1929, not reported], where a
policeman, who had been sent to a polling place to preserve
order on the request of the chairman of the board
of election inspectors, was acquitted); that in the case at bar
there is no evidence that the defendant went to
the election precinct either to vote or to work for the candidacy
of anyone, but no the other hand the evidence shows that the
defendant had no intention to go to the electoral precinct; that
he was merely passing along the road in front of the building
where the election was being held when a friend of his called
him; that while in the strict, narrow interpretation of the law the
defendant is guilty, it would be inhuman and unreasonable to
convict him.
We cannot accept the reasons advanced by the Solicitor-
General for the acquittal of the defendant. The law which the
defendant violated is a statutory provision, and the intent with
which he violated it is immaterial. It may be conceded that the
defendant did not intend to intimidate any elector or to violate
the law in any other way, but when he got out of his automobile
and carried his revolver inside of the fence surrounding the
polling place, he committed the act complained of, and he
committed it willfully. The act prohibited by the Election Law was
complete. The intention to intimidate the voters or to interfere
otherwise with the election is not made an essential element of
the offense. Unless such an offender actually makes use of his
revolver, it would be extremely difficult, if not impossible, to
prove that he intended to intimidate the voters.
The rule is that in acts mala in se there must be a criminal intent,
but in those mala prohibita it is sufficient if the prohibited act was
intentionally done. "Care must be exercised in distinguishing the
difference between the intent to commit the crime and the intent
to perpetrate the act. . . ." (U. S.vs. Go Chico, 14 Phil., 128.).
"While it is true that, as a rule and a principles of abstract justice,
men are not and should not be held criminally responsible for
acts committed by them without guilty knowledge and criminal
or at least evil intent (Bishop's New Crim. Law, vol. I, sec. 286),
the courts have always recognized the power of the legislature,
on grounds of public policy and compelled by necessity, 'the
great master of things', to forbid in a limited class of cases the
doing of certain acts, and to make their commission criminal
without regard to the intent of the doer. (U. S. vs. Go Chico, 14
Phil., 128; U. S. vs. Ah Chong, 15 Phil., 488.) In such cases no
judicial authority has the power to require, in the enforcement of
the law, such knowledge or motive to be shown." (U. S. vs. Siy
Cong Bieng and Co Kong, 30 Phil., 577.)
The cases suggested by the Solicitor-General do not seem to us
to present any difficulty in the enforcement of the law. If a man
with a revolver merely passes along a public road
on election day, within fifty meters of a polling place, he does not
violate the provision of law in question, because he had no intent
to perpetrate the act prohibited, and the same thing would be
true of a peace officer in pursuing a criminal; nor would the
prohibition extend to persons living within fifty meters of a polling
place, who merely clean or handle their firearms within their own
residences onelection day, as they would not be carrying
firearms within the contemplation of the law; and as to the
decision in the case of People vs. Urdeleon,supra, we have
recently held in the case of People vs. Ayre, and Degracia (p.
169. ante), that a policeman who goes to a polling place on the
request of the board of election inspectors for the purpose of
maintaining order is authorized by law to carry his arms.
If we were to adopt the specious reasoning that the appellant
should be acquitted because it was not proved that he tried to
influence or intended to influence the mind of any voter, anybody
could sell intoxicating liquor or hold a cockfight or a horse race
on election day with impunity.
As to the severity of the minimum penalty provided by law for a
violation of the provision in question, that is a matter for the Chief
Executive or the Legislature.
For the foregoing reasons, the decision appealed from is
affirmed, with the costs against the appellant.
Avancea, C.J., Street, Abad Santos and Hull, JJ., concur.
SECTION 254. Procedure in election contests. The
Commission shall prescribe the rules to govern the procedure
and other matters relating to election contests pertaining to all
national, regional, provincial, and city offices not later than thirty
days before such elections. Such rules shall provide a simple
and inexpensive procedure for the expeditious disposition of
election contests and shall be published in at least two
newspapers of general circulation. (Art. XVIII, Sec. 192, 1978
EC; Art. XIV, Sec. 62, BP 697)
However, with respect to election contests involving municipal
and barangay offices the following rules of procedure shall
govern:
(a) Notice of the protest contesting the election of a candidate
for a municipal or barangay office shall be served upon the
candidate by means of a summons at the postal address stated
in his certificate of candidacy except when the protestee, without
waiting for the summons, has made the court understand that
he has been notified of the protest or has filed his answer hereto;
(b) The protestee shall answer the protest within five days after
receipt of the summons, or, in case there has been no summons
from the date of his appearance and in all cases before the
commencement of the hearing of the protest or contest. The
answer shall deal only with the election in the polling places
which are covered by the allegations of the contest;
(c) Should the protestee desire to impugn the votes received by
the protestant in other polling places, he shall file a counter-
protest within the same period fixed for the answer serving a
copy thereof upon the protestant by registered mail or by
personal delivery or through the sheriff;
(d) The protestant shall answer the counter-protest within five
days after notice;
(e) Within the period of five days counted from the filing of the
protest any other candidate for the same office may intervene in
the case as other contestants and ask for affirmative relief in his
favor by a petition in intervention, which shall be considered as
another contest, except that it shall be substantiated within the
same proceedings. The protestant or protestee shall answer the
protest in intervention within five days after notice;
(f) If no answer shall be filed to the contest, counter-protest, or
to the protest in intervention, within the time limits respectively
fixed, a general denial shall be deemed to have been entered;

(g) In election contest proceedings, the permanent registry list

of voters shall be conclusive in regard to the question as to who
had the right to vote in said election. cdasia

SECTION 255. Judicial counting of votes in election contest.

Where allegations in a protest or counter-protest so warrant, or
whenever in the opinion of the court the interests of justice so
require, it shall immediately order the book of voters, ballot
boxes and their keys, ballots and other documents used in the
election be brought before it and that the ballots be examined
and the votes recounted. (Sec. 221, 1971 EC)

SECTION 256. Appeals. Appeals from any decision

rendered by the regional trial court under Section 251 and
paragraph two, Section 253 hereof with respect to quo
warranto petitions filed in election contests affecting municipal
officers, the aggrieved party may appeal to the Intermediate
Appellate Court within five days after receipt of a copy of the
decision. No motion for reconsideration shall be entertained by
the court. The appeal shall be decided within sixty days after the
case has been submitted for decision. (Art. XVIII,
Sec. 196, 1978 EC)

SECTION 257. Decision in the Commission. The

Commission shall decide all election cases brought before it
within ninety days from the date of their submission for decision.
The decision of the Commission shall become final thirty days
after receipt of judgment. (Art. XII, C, Sec. 3, Const.; Art. XVIII,
Sec. 193, 1978 EC)