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SECTION 6 POSTPONEMENT OF ELECTION (Case Digests) Ten days lapsed without the Comelec responding to the letter of Montesclaros.

Subsequently, petitioners received a copy of Comelec En Banc Resolution No. 4763 dated
(Republic Act No. 6679) AN ACT TO AMEND REPUBLIC ACT NO. 6653 TO POSTPONE February 5, 2002 recommending to Congress the postponement of the SK elections to
THE BARANGAY ELECTIONS TO MARCH 28, 1989, PRESCRIBING ADDITIONAL November 2002 but holding the Barangay elections in May 2002 as scheduled.
RULES GOVERNING THE CONDUCT OF BARANGAY ELECTIONS AND FOR OTHER
PURPOSES On March 6, 2002, the Senate and the House of Representatives passed their respective
bills postponing the SK elections. On March 11, 2002, the Bicameral Conference
Section 2. When for any serious cause such as rebellion, insurrection, violence, Committee (Bicameral Committee) of the Senate and the House came out with a
terrorism, loss or destruction of election paraphernalia, and any analogous causes of Report recommending approval of the reconciled bill consolidating Senate Bill No.
such nature that the holding of a free, orderly and honest election should become 2050 and House Bill No. 4456. The Bicameral Committees consolidated bill reset the SK
impossible in any barangay, the Commission on Elections motu propio or upon sworn and Barangay elections to July 15, 2002 and lowered the membership age in the SK to at
petition of ten (10) registered voters of a barangay, after summary proceedings of the least 15 but not more than 18 years of age.
existence of such grounds, shall suspend or postpone the election therein to a date
reasonably close to the date of the election that is not held or is suspended or postponed, On March 11, 2002, petitioners filed the instant petition.
or which resulted in a failure to elect, but not later than thirty (30) days after the
cessation of the cause for such suspension or postponement of the election or failure to On March 11, 2002, the Senate approved the Bicameral Committees consolidated bill
elect, and in all cases not later than ninety (90) days from the date of the original and on March 13, 2002, the House of Representatives approved the same. The President
election. signed the approved bill into law on March 19, 2002.

1. Sumbing vs. Davide, G.R. Nos. 86850-51, July 20, 1989 Issue:

2. ANTONIETTE V.C. MONTESCLAROS, MARICEL CARANZO, JOSEPHINE ATANGAN, Won respondents acted with grave abuse of discretion, amounting to lack or excess of
RONALD ATANGAN and CLARIZA DECENA, and OTHER YOUTH OF THE LAND jurisdiction when they:
SIMILARLY SITUATED vs. COMMISSION ON ELECTIONS, ET AL., G.R. No. 152295, July (I) Intended to postpone the SK elections.
9, 2002 (II) Intended to discriminate, disenfranchise, single out and dismember the SK members
who are 18 but not less than 21 years old composed of about 7 million youth.
Facts: (III) Willfully failed to fund the SK election purportedly to postpone the same in order to
implement their illegal scheme and machination in spite of the fact that there are
Before us is a petition for certiorari, prohibition and mandamus with prayer for a available funds for the purpose.
temporary restraining order or preliminary injunction. (IV) Wanted to perpetually sit on their respective offices contrary to the envision of the
creation of the SK organization, hence, in violation of law and constitution.
Petitioners pray for the issuance of a temporary restraining order or preliminary
injunction. Ruling:

The first SK elections took place on December 4, 1992. RA No. 7808 reset the SK The petition is bereft of merit.
elections to the first Monday of May of 1996 and every three years thereafter. RA No.
7808 mandated the Comelec to supervise the conduct of the SK elections under rules the The Courts power of judicial review may be exercised in constitutional cases only if all
Comelec shall promulgate. Accordingly, the Comelec on December 4, 2001 issued the following requisites are complied with, namely: (1) the existence of an actual and
Resolution Nos. 4713 and 4714 to govern the SK elections on May 6, 2002. appropriate case or controversy; (2) a personal and substantial interest of the party
raising the constitutional question; (3) the exercise of judicial review is pleaded at the
On February 18, 2002, petitioner Antoniette V.C. Montesclaros (Montesclaros) sent a earliest opportunity; and (4) the constitutional question is the lis mota of the case.
letter to the Comelec, demanding that the SK elections be held as scheduled on May 6,
2002. Montesclaros also urged the Comelec to respond to her letter within 10 days upon In the instant case, there is no actual controversy requiring the exercise of the power of
receipt of the letter, otherwise, she will seek judicial relief. judicial review. While seeking to prevent a postponement of the May 6, 2002 SK
elections, petitioners are nevertheless amenable to a resetting of the SK elections to any
On February 20, 2002, Chairman Benipayo expressed that it was operationally difficult to date not later than July 15, 2002. RA No. 9164 has reset the SK elections to July 15, 2002,
hold both elections (SK and Brgy) on May 2002 and to postpone the SK elections to a date acceptable to petitioners.
November 2002. the recommendation is currently a pending bill proposed by Franklin
Drilon.
Petitioners prayer to prevent Congress from enacting into law a proposed bill lowering SECTION 7 FAILURE OF ELECTION (Case Digests)
the membership age in the SK does not present an actual justiciable controversy. A
proposed bill is not subject to judicial review because it is not a law. The power of (Republic Act No. 7166) AN ACT PROVIDING FOR SYNCHRONIZED NATIONAL AND
judicial review cannot be exercised in vacuo. The second paragraph of Section 1, Article LOCAL ELECTIONS AND FOR ELECTORAL REFORMS, AUTHORIZING
VIII of the Constitution states APPROPRIATIONS THEREFOR, AND FOR OTHER PURPOSES

Judicial power includes the duty of the courts of justice to settle actual controversies Section 4. Postponement, Failure of Election and Special Elections. - The
involving rights which are legally demandable and enforceable, and to determine postponement, declaration of failure of election and the calling of special elections as
whether or not there has been a grave abuse of discretion amounting to lack or excess of provided in Sections 5, 6 and 7 of the Omnibus Election Code shall be decided by the
jurisdiction on the part of any branch or instrumentality of the Government. Commission sitting en banc by a majority vote of its members. The causes for the
declaration of a failure of election may occur before or after the casting of votes or on the
Under RA No. 9164, Congress merely restored the age requirement in PD No. 684, the day of the election.
original charter of the SK, which fixed the maximum age for membership in the SK to In case a permanent vacancy shall occur in the Senate or House of Representatives at
youths less than 18 years old. Petitioners do not have a vested right to the permanence least one (1) year before the expiration of the term, the Commission shall call and hold a
of the age requirement under Section 424 of the Local Government Code of 1991. Every special election to fill the vacancy not earlier than sixty (60) days nor longer than ninety
law passed by Congress is always subject to amendment or repeal by Congress. The (90) days after the occurrence of the vacancy. However, in case of such vacancy in the
Court cannot restrain Congress from amending or repealing laws, for the power to make Senate, the special election shall be held simultaneously with the succeeding regular
laws includes the power to change the laws. Petitioners remedy is legislation, not election.
judicial intervention.
Section 6. Nomination and Selection of Official Candidates. - No political convention
In the instant case, petitioners seek to enforce a right originally conferred by law on or meeting for the nomination or selection of the official candidates of any political party
those who were at least 15 but not more than 21 years old. With the passage of RA No. or organization or political groups or coalition thereof shall be held earlier than the
9164, this right is limited to those who on the date of the SK elections are at least 15 but following periods:
less than 18 years old. The new law restricts membership in the SK to this specific age (a) For President, Vice-President and Senators, one hundred sixty-five (165) days before
group. Not falling within this classification, petitioners have ceased to be members of the the day of the election; and
SK and are no longer qualified to participate in the July 15, 2002 SK elections. Plainly, (b) For Members of the House of Representatives and elective provincial, city or
petitioners no longer have a personal and substantial interest in the SK elections. municipal officials, seventy-five (75) days before the day of the election.

A public office is not a property right. As the Constitution expressly states, a Public 1. BENJAMIN T. LOONG vs. COMMISSION ON ELECTIONS, NURSHUSSEIN UTUTALUM
office is a public trust. No one has a vested right to any public office, much less a vested and ALIM BASHIR EDRIS, G.R. No. 93986, December 22, 1992
right to an expectancy of holding a public office.
Facts:
The petition must also fail because no grave abuse of discretion attended the
postponement of the SK elections. Petitioners are not even assailing the constitutionality On 15 January 1990, petitioner filed with COMELEC his certificate of candidacy for the
of RA No. 9164. RA No. 9164 enjoys the presumption of constitutionality and will apply position of Vice-Governor of the Mindanao Autonomous Region in the election held on 17
to the July 15, 2002 SK elections. The presumption remains that the decision of the February 1990 (15 January 1990 being the last day for filing said certificate); herein two
Comelec to recommend to Congress the postponement of the elections was made in good (2) private respondents (Ututalum and Edris) were also candidates for the same
faith in the regular course of its official duties While RA No. 9164 contains a hold-over position.
provision, incumbent SK officials can remain in office only until their successors have
been elected or qualified. On July 15, 2002, when the SK elections are held, the hold-over On 5 March 1990 (or 16 days after the election), respondent Ututalum filed before the
period expires and all incumbent SK officials automatically cease to hold their SK offices COMELEC a petition to disqualify petitioner for the office of Regional Vice-Governor, on
and their ex-officio public offices. the ground that the latter made a false representation in his certificate of candidacy as to
his age. Respondent Edris, the other candidate, also filed a "Petition in Intervention" in
WHEREFORE, the petition is DISMISSED for utter lack of merit. SO ORDERED. the said petition, raising therein issues similar to those raised by respondent Ututalum in
his main petition.

Petitioner Loong sought the dismissal of the petition on the ground that the respondent
COMELEC has no jurisdiction. The motion to dismiss was denied by the COMELEC in a
resolution which is the subject of this petition. It held that it has jurisdiction to try the SEC. 12. Disqualification. Any person who has been declared by
petition denying the petitioner's motion to dismiss. competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any
Petitioner was proclaimed as the duly elected Vice-Governor of the Mindanao offense for which he was sentenced to a penalty of more than eighteen
Autonomous Region. Hence, he filed a special civil action of certiorari to annul the months or for a crime involving moral turpitude, shall be disqualified
aforesaid resolution. In his petition, petitioner Loong contended that the petition to to be a candidate and to hold any office, unless he has been given
cancel his certificate of candidacy was filed out of time because it was filed beyond the plenary pardon or granted amnesty
25-day period prescribed by Section 78 of the Omnibus Election Code.
SEC. 68. Disqualifications. Any candidate who, in an action or
On the other hand, private respondent Ututalum alleged that the petition, though filed protest in which he is a party is declared by final decision of a
only on 5 March 1990, was filed when no proclamation of winner had as yet been made competent court guilty of, or found by the Commission of having (a)
and that the petition is deemed filed on time as Section 3, Rule 25 of the Comelec Rules of given money or other material consideration to influence, induce or
Procedure states that the petition to disqualify a candidate on grounds of ineligibility corrupt the voters or public official performing electoral functions; (b)
"shall be filed any day after the last day for filing of certificates of candidacy but not later committed acts of terrorism to enhance his candidacy; (c) spent in his
than the date of proclamation." election compaign an amount in excess of that allowed by
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
On the part of respondent Commission, it held in its assailed resolution that the petition violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v,
to disqualify the Petitioner was timely filed for such petition may be filed even beyond and cc, sub-paragraph 6, shall be disqualified from continuing as a
the 25-day period prescribed by Sec. 78 of the Omnibus Election Code, applying Sections candidate, or if he has been elected, from holding the office. Any
6 and 7 of Republic Act No. 6646, Section 2, Rule 23 of the Comelec Rules of Procedure, person who is a permanent resident of or an immigrant to foreign
and the ruling provided in the case Frivaldo vs. Comelec, 174 SCRA 245. country shall not be qualified to run for any elective office under this
Code, unless said or immigrant of a foreign country in accordance
Issue: with the residence requirement provided for in the election law.

Whether or not the petition of the private respondent to disqualify the petitioner was The petition filed by private respondent Ututalum with the respondent COMELEC to
filed within the period prescribed by law. disqualify petitioner Loong on the ground that the latter made a false representation in
his certificate of candidacy as to his age, clearly does not fall under the grounds of
Ruling: disqualification as provided for in Rule 25 but is expressly covered by Rule 23 of the
Comelec Rules of Procedure governing petitions to cancel certificate of candidacy.
NO. Section 78 of the Omnibus Election Code states that in case a person filing a Moreover, Section 3, Rule 25 which allows the filing of the petition at any time after the
certificate of candidacy has committed false representation, a petition to cancel the last day for the filing of certificates of candidacy but not later than the date of
certificate of the aforesaid person may be filed within twenty-five (25) days from the proclamation, is merely a procedural rule issued by respondent Commission which,
time the certificate was filed. although a constitutional body, has no legislative powers. Thus, it cannot supersede
Section 78 of the Omnibus Election Code which is a legislative enactment.
Clearly, the petition to disqualify the petitioner was filed beyond the 25-day period
prescribed by Section 78 of the Omnibus Election Code. We also do not find merit in the contention of respondent Commission that in the light of
the provisions of Section 6 and 7 of Rep. Act No. 6646, a petition to deny due course to or
We do not agree with private respondent Ututalum's contention that the petition for cancel a certificate of candidacy may be filed even beyond the 25 -day period prescribed
disqualification, as in the case at bar, may be filed at any time after the last day for filing a by Section 78 of the Code, as long as it is filed within a reasonable time from the
certificate of candidacy but not later than the date of proclamation, applying Section 3, discovery of the ineligibility.
Rule 25 of the Comelec Rules of Procedures.
Section 6 and 7 of Rep. Act No. 6646 are here re-quoted:
Rule 25 of the Comelec Rules of Procedure refers to Disqualification of Candidates; and
Section 1 of said rule provides that any candidate who commits any act declared by law SEC. 6. Effect of Disqualification Case. any candidate who has been
to be a ground for disqualification may be disqualified from continuing as a candidate. declared by final judgment to be disqualified shall not be voted for,
The grounds for disqualification as expressed in Sections 12 and 68 of the Code are the and the votes cast for him shall not be declared by final judgment
following: before an election to be disqualified and he is voted for and receives
the winning number of votes in such election, the Court of
Commission shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or any tampering and substitution of ballots. But on 13 July 1992, COMELEC considered the
intervenor, may during the pendency thereof order the suspension of petition moot since the votes in the subject precincts were already counted.
the proclamation of such candidate whenever the evidence of his guilt
is strong. Other petitions seeking the declaration of failure of election in some or all precincts of
Lumba-Bayabao were also filed with COMELEC by other mayoralty candidates. Datu
SEC. 7. Petition to Deny Due Course To or Cancel a Certificate of Gamba Dagalangit filed an urgent petition for special elections in Precinct No. 22-A
Candidacy. The procedure hereinabove provided shall apply to wherein the ballot box was opened, ballots were already torn to pieces. Special election
petitions to deny due course to or cancel a certificate of candidacy as was conducted on 25 July 1992. Datu Elias Abdusalam, filed a petition to declare failure
provided in Section 78 of Batas Pambansa Blg. 881." of election in 29 more precincts as a result of alleged tampering of ballots and clustering
of precincts. His petition was dismissed. COMELEC ruled that there must be a situation
It will be noted that nothing in Sections 6 or 7 modified or alters the 25-day period where there is absolute inability to vote before a failure of election can be declared. Since
prescribed by Section 78 of the Code for filing the appropriate action to cancel a voting was actually conducted in the contested precincts, there was no basis for the
certificate of candidacy on account of any false representation made therein. On the petition. Respondent filed another petition, this time seeking to exclude from the
contrary, said Section 7 affirms and reiterates Section 78 of the Code. counting the ballots cast in 6 precincts on the ground that the integrity of the ballot
boxes therein was violated. Again, on 14 July 1992, COMELEC considered the petition
We are aware that in Frivaldo vs. Comelec, this Court held that a petition to disqualify an moot, as the issue raised therein was already set aside as moot. Datu Bagato Khalid
elective official, on the ground that he is not a Filipino citizen, may be file at anytime, Lonta, filed a petition which in the main sought the declaration of failure of election in all
even beyond the period prescribed by law, and office and in fact had long been 67 precincts because of massive disenfranchisement of voters. However it was
discharging the duties of said office. But we disagree with respondent Commission that dismissed, ruling that the allegations therein did not support a case of failure of election.
the Frivaldo ruling applied to the case at bar in all its connotations and implications. For
one, the ground for which disqualification is sought in the present case is On 8 July 1992, petitioner filed a motion to intervene in these four (4) petitions. But
misrepresentation as to the required age of the candidate, whereas, in Frivaldo the COMELEC treated the same as a motion for reconsideration and promptly denied it
ground for disqualification was lack of Philippine citizenship. This is an overriding and considering that under the COMELEC Rules of Procedure such motion was a prohibited
fundamental desideratum matched perhaps only by disloyalty to the Republic of the pleading.
Philippines.
Thereafter, a new board of Election Inspectors was formed to conduct the special
WHEREFORE, the petition is GRANTED. The resolution of respondent Commission, dated election set for 25 July 1992. Petitioner impugned the creation of this Board.
15 May 1990 and 3 July 1990, rendered in SPA No. 90-006 are hereby SET ASIDE. SO Nevertheless, on 30 July 1992, the new Board convened and began the canvassing of
ORDERED. votes. Finally, on 31 July 1992, Dagalangit was proclaimed the duly elected Mayor of
Lumba-Bayabao, Lanao del Sur. Petitioner instituted the instant proceedings seeking the
2. SULTAN MOHAMAD L. MITMUG, petitioner, vs. COMMISSION ON ELECTIONS, declaration of failure of election in 49 precincts where less than a quarter of the
MUNICIPAL BOARD OF CANVASSERS OF LUMBA-BAYABAO, LANAO DEL SUR, and electorate were able to cast their votes. He also prayed for the issuance of a temporary
DATU GAMBAI DAGALANGIT, G.R. No. 106270-73, February 10, 1994 restraining order to enjoin private respondent from assuming office. On 10 August 1992,
petitioner lodged an election protest with the Regional trial Court of Lanao del Sur
Facts: disputing the result not only of some but all the precincts of Lumba-Bayabao, del Sur.

Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU GAMBAI Issue:
DAGALANGIT were among the candidates for the mayoralty position of Lumba-Bayabao
during the 11 May 1992 election. There were sixty-seven (67) precincts in the The main issue is whether respondent COMELEC acted with grave abuse of discretion
municipality. amounting to lack of jurisdiction in denying motu proprio and without due notice and
hearing the petitions seeking to declare a failure of election in some or all of the precincts
As was heretofore stated, voter turnout was 22.26%, roughly 2,330 out of 9,830 in Lumba-Bayabao, Lanao del Sur.
registered voters therein cast their votes. Five (5) of these precincts did not conduct
actual voting at all. Consequently, COMELEC ordered the holding of a special election on Ruling:
30 May 1992 in the five (5) precincts which failed to function during Election Day. And
on 30 July 1992 another special election was held for a sixth precinct. Under the COMELEC Rules of Procedure, within twenty-four (24) hours from the filing of
a verified petition to declare a failure to elect, notices to all interested parties indicating
In the interim, petitioner filed a petition seeking the annulment of the special election therein the date of hearing should be served through the fastest means available.
conducted on 30 May 1992 alleging various irregularities such as the alteration,
Based on the foregoing, the clear intent of the law is that a petition of this nature must be must be elected by a plurality of valid votes, regardless of the actual number of ballots
acted upon with dispatch only after hearing thereon shall have been conducted. Since cast. Thus, even if less than 25% of the electorate in the questioned precincts cast their
COMELEC denied the other petitions which sought to include forty-three (43) more votes, the same must still be respected.
precincts in a special election without conducting any hearing, it would appear then that
there indeed might have been grave abuse of discretion in denying the petitions. WHEREFORE, there being no grave abuse of discretion, the Petition for Certiorari is
DISMISSED.
However, a closer examination of the COMELEC Rules of Procedure, particularly Sec. 2,
Rule 26, thereof which was lifted from Sec. 6, B.P. 881, otherwise known as the Omnibus 3. WILMAR P. LUCERO vs. COMMISSION ON ELECTIONS and JOSE L. ONG, JR., G.R. No.
Election Code of the Philippines, indicates otherwise. It reads 113107, July 20, 1994

Sec. 2. Failure of election. If, on account of force majeure, violence, terrorism, Facts:
fraud or other analogous causes the election in any precinct has not been held
on the date fixed, or had been suspended before the hour fixed by law for the Petitioners were two of the 5 candidates for the second Legislative District in Northern
closing of the voting, or after the voting and during the preparation and the Samar in the synchronized national and local elections held on 11 May 1992. The canvass
transmission of the election returns or in the custody of canvass thereof, such of the Provincial Board of Canvassers (PBC) of Northern Samar credited Ong with 24,272
election results in a failure to elect, and in any of such cases the failure or votes and Lucero with 24,068 votes, or a lead of 204 votes. However, this tally did not
suspension of election would affect the result of the election, the Commission include the results of Precincts No. 7 (illegible election returns) of the Municipality of
shall, on the basis of a verified petition by any interested party and after due Silvino Lobos, Precinct No. 13 (ballot boxes were snatched and no election was held, and
notice and hearing, call for the holding or continuation of the election not held, Precinct No. 13 (missing election returns). Upon Luceros manifestation, COMELEC
suspended or which resulted in a failure to elect on a date reasonably close to directed PBC to suspend the canvassing on 2 June 1992. Ong moved to lift the
the date of the election not held, suspended or which resulted in a failure to suspension to which Lucero opposed. On 13 June 1992, COMELEC en banc promulgated
elect but not later than thirty (30) days after the cessation of the cause of such a resolution ordering the Provincial Election Supervisor of Northern Samar to bring to
postponement or suspension of the election or failure to elect. the Commission the ballot boxes from Precincts 7 and 16 of Silvino Lobos. On 15 June
1992, Lucero filed an urgent motion for the recounting of the ballots of Precincts 7 and
Before COMELEC can act on a verified petition seeking to declare a failure of election, 16 to which the COMELEC granted. On 20 June 1992, Ong filed with the SC a petition
two (2) conditions must concur: first, no voting has taken place in the precinct or (G.R. 105717) for certiorari questioning the order of recount. On 23 December 1992, SC
precincts on the date fixed by law or, even if there was voting, the election nevertheless granted the petition, nullified the resolutions of COMELEC dated June 2 and June 13,
results in failure to elect; and, second, the votes not cast would affect the result of the 1992, and ordered the Commission to call a special election in Precinct No. 13 of Silvino
election. Lobos, among others. On 7 January 1994, COMELEC en banc promulgated a resolution
directing the special PBC of Northern Samar to include in the municipal certificate of
In the case before us, it is indubitable that the votes not cast will definitely affect the canvass the 43 votes of Lucero and 2 votes of Ong, to enter in the provincial certificate of
outcome of the election. But, the first requisite is missing, i.e., that no actual voting took canvass 2,537 votes for Lucero (for the Municipality of Las Navas, as reflected in the
place, or even if there is, the results thereon will be tantamount to a failure to elect. Since Statement of Votes) instead of 2,517, to issue an order for a special election in Precinct
actual voting and election by the registered voters in the questioned precincts have No. 13 (Brgy Cusaran). Both Lucero and Ong went to SC to challenge the resolution.
taken place, the results thereof cannot be disregarded and excluded. COMELEC therefore
did not commit any abuse of discretion, much less grave, in denying the petitions Issues:
outright. There was no basis for the petitions since the facts alleged therein did not
constitute sufficient grounds to warrant the relief sought. For, the language of the law 1. Whether there should first be a count of the ballots of Precinct No. 7 before
expressly requires the concurrence of these conditions to justify the calling of a special determining the necessity of calling a special election in the Precinct No. 13;
election. The verified petition must still show on its face that the conditions to declare a 2. Whether COMELEC acted with grave abuse of discretion in ordering the correction
failure to elect are present. In the absence thereof, the petition must be denied outright. of the alleged manifest error in the Municipal Certificate of Canvass of Las Navas;
Considering that there is no concurrence of the 2 conditions in the petitions seeking to and
declare failure of election in 43 more, precincts, there is no more need to receive 3. Whether COMELEC acted with grave abuse of discretion in calling for a special
evidence on alleged election irregularities. election in Precinct No. 13 after almost 2 years from the regular election.

Instead, the question of whether there have been terrorism and other irregularities is Ruling:
better ventilated in an election contest. There can be failure of election in a political unit
only if the will of the majority has been defiled and cannot be ascertained. But, if it can be 1. Yes. A special election may be held in Precinct No. 13 only if the failure of election
determined, it must be accorded respect. All the law requires is that a winning candidate therein would affect the result of the election - the result of the election in the rest
of the precincts in a given constituency, such that if the margin of a leading candidate In an Order dated May 28, 1995, the COMELEC Team re-scheduled the elections in these
over that of his closest rival in the later precincts is less than the total number of precincts for May 29, 1995 at Liangan Elementary (Arabic) School, which is 15
votes in the precinct where there was failure of election. Consequently, the holding kilometers away from the designated polling places.
of a special election in Precinct No. 13 can only be determined after the votes in
Precinct No. 7 must, perforce, precede the special election in Precinct No. 13. On May 29, 1995, the members of the Board did not again report for duty. Hence, the
COMELEC Team was constrained to appoint police/military personnel to act as
2. No. The order of COMELEC for the correction of the manifest error in the municipal substitute members so as to push through with the elections.
certificate of canvass of Las Navas was made pursuant to the declaration made by
the SC in G.R. No. 105717. Such decision became final since no MR was filed. In the May 8 elections, the results for the Office of the Vice-Mayor were as follows:
1. MANGONDAYA HASSAN - 884
3. No. There are 2 requisites for the holding of special elections under Section 6 of OEC: 2. OSOP KIRAM - 816
a) there is a failure of election; b) such failure would affect the results of the election. 3. PETITIONER HASSAN - 801
The parties admit that the failure of the election in Precinct No. 13 was due to ballot- 4. ESRA S. ANGNI - 340
box snatching (violence or any analogous causes). On the basis of the additional 5. IBRAHIM ALAWI - 185
votes credited so far to the parties, the following computation is in order: to Ong's
24,272 votes will be added 2 more from Precinct No. 16, to make a total of 24,274, In the May 29 special elections held in Precinct Nos. 9, 9-A, 10, 13 and 14 the following
while to Lucero's 24,068 votes will be added 20 more from Las Navas and 43 from votes were obtained.
Precinct No. 16, for a total of 24,131. Ong's earlier lead will thus be reduced to 143, 1. M. HASSAN - 214
which is admitted less than the 213 registered voters of Precinct No. 13. 2. OSOP KIRAM - 17
3. N. HASSAN - 78
In fixing the date of special election, COMELEC should see to it that: a) it should be 4. ANGNI ESRA - 1
not later than thirty days after the cessation of the cause of the postponement; b) it 5. IBRAHIM ALAWI - 0
should be reasonably close to the date of the election not held. Considering that the
petitioners must share the blame for the delay, and taking into account the fact that Hence the final results are as follows:
the term of office of the contested position is only 3 years, the holding of a special 1. MANGONDAYA HASSAN - 1,098
election in Precinct 13 within the next few months may still be considered 2. PETITIONER NOR HASSAN - 879
reasonably close to the date of the election not held. 3. OSOP KIRAM - 833
4. ANGNI ESRA - 341
4. HADJI NOR BASHER L. HASSAN vs. COMMISSION ON ELECTIONS, ET AL., G.R. No. 5. IBRAHIM ALAWI - 185
124089, November 13, 1996
On June 10, 1995, petitioner Hadji Nor Basher L. Hassan filed a petition with the
Facts: COMELEC docketed as SPA 95-283 assailing the validity of the May 29 re-scheduled
special elections on the following grounds:
Petitioner, Hadji Nor Basher L. Hassan, and private respondent, Mangondaya P. Hassan a) The voting which started at 10:00 A.M. was forcibly ended at around 2:00
Buatan were candidates for the Office of the Vice-Mayor while the other private p.m. because of exchanges of rapid gunfiring and grenade launching between unknown
respondents were candidates for councilors in Madalum, Lanao del Sur in the last regular elements and the Army or PNP soldiers;
local elections of May 8, 1995. However, due to threats of violence and terrorism in the b) The voting was moved to Liangan Elementary (Arabic) School, located about 15
area there was failure of elections in six out of twenty-four precincts in Madalum. kilometers away from the respective polling places;
c) Notices in the transfer of venue of the voting was sent only on the night of May 28,
The ballot boxes were burned and there were threats by unidentified persons in Precinct 1995 and only to a few but not to all concerned;
No. 7-A. In Precinct Nos. 9, 9-A, 10, 13, and 14, elections did not take place because the d) Only 328 out of the 1,645 registered voters of said 5 precincts were able to vote
members of the Board of Election Inspectors (BEI) failed to report to their respective constituting only about 21.1% and disenfranchising 78% of the registered voters
polling places. thereof; and
e) The regular members of the BEI did not report for duty and were substituted by
Thus, the Monitoring Supervising Team (COMELEC Team) headed by Regional Election military personnel.
Director Virgilio O. Garcillano recommended to the COMELEC the holding of special
elections in said precincts. The special elections were thereby set on May 27, 1995. On In February 21, 1996 the COMELEC en banc issued a resolution denying the petition for a
said date, however, the members of the BEI again failed to report for duty in their declaration of failure of elections and to call special elections in Precinct Nos. 7-A
respective polling places. (Abaga), 9, 9-A, 10, 13 and 14, in Madalum, Lanao del Sur. It disposed of the consolidated
petitions (SPA 95-283 and SPA 95-286) by directing the Regional Election Director of the two (2) previous elections. To require the voters to come to the polls on such short
Region XII in consultation with the Commissioner-in-Charge of Region XII to reconstitute notice was highly impracticable. In a place marred by violence, it was necessary for the
the Municipal Board of Canvassers of Madalum, Lanao del Sur, of which shall convene voters to be given sufficient time to be notified of the changes and prepare themselves
forthwith and complete the canvass by proclaiming the winning vice-mayoralty for the eventuality.
candidate, Mangondaya P. Hassan Buatan, and eight winning candidates for member,
Sangguniang Bayan of that municipality. It is essential to the validity of the election that the voters have notice in some form,
either actual or constructive of the time, place and purpose thereof. The time for holding
Issue: it must be authoritatively designated in advance. The requirement of notice even
becomes stricter in cases of special elections where it was called by some authority after
Whether or not suspension of election was proper. the happening of a condition precedent, or at least there must be a substantial
compliance therewith so that it may fairly and reasonably be said that the purpose of the
Ruling: statute has been carried into effect. The sufficiency of notice is determined on whether
the voters generally have knowledge of the time, place and purpose of the elections so as
SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or to give them full opportunity to attend the polls and express their will or on the other
other analogous causes the election in any polling place has not been held on the date hand, whether the omission resulted in depriving a sufficient number of the qualified
fixed, or had been suspended before the hour fixed by law for the closing of the voting, or electors of the opportunity of exercising their franchise so as to change the result of the
after the voting and during the preparation and the transmission of the election returns election.
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, From the foregoing, it is not difficult for us to rule that there was insufficiency of notice
the Commission shall, on the basis of a verified petition by any interested party and after given as to the time and transfer of the polling places. The low turnout of voters is more
due notice and hearing, call for the holding or continuation of the election not held, than sufficient proof that the elections conducted on that day was vitiated. A less than a
suspended or which resulted in a failure to elect on a date reasonably close to the date of days notice of time and transfer of polling places 15 kilometers away from the original
the election not held, suspended or which resulted in a failure to elect but not later than polls certainly deprived the electors the opportunity to participate in the elections.
thirty days after the cessation of the cause of such postponement or suspension of the
election or failure to elect. (Sec. 7, 1978 EC) Respondents argue that since voting actually occurred on May 29, the substantial
requirement of notice was complied with, which should not necessarily invalidate the
In several cases, the Court has ruled that the pre-conditions for declaring a failure of elections; more so, if the votes not cast therein suffice to affect the results of the
election are: (1) that no voting has been held in any precinct or precincts because of force elections.
majeure, violence or terrorism, and (2) that the votes not cast therein suffice to affect the
results of the elections. The concurrence of these two (2) circumstances are required to We disagree. It was quite sweeping and illogical for the COMELEC to state that the votes
justify the calling of a special election. uncast would not have in any way affected the results of the elections. While the
difference between the two candidates is only 219 out of the votes actually cast, the
Mindful of these two (2) requirements, we rule in favor of the petitioner. COMELEC totally ignored the fact that there were more than a thousand registered
voters who failed to vote. Aside from Precinct 7-A where the ballot box had been burned
The COMELEC explained that: and which had 219 voters, the COMELEC failed to consider the disenfranchisement of
Jurisprudence holds that terrorism may not as a rule be invoked to declare a failure about 78% of the registered voters in the five (5) precincts of Madalum. Out of the 1,546
of elections and to disenfranchise the greater number of the electorate through the registered voters, only 328 actually voted because of the insufficient and ineffectual
misdeeds of only a relative few. Otherwise elections will never be carried out with notice given of the time and place of elections. Whether or not another special election
the resultant disenfranchisement of the innocent voters, for the losers will always would turn the tide in petitioners favor is of no moment because what is more important
cry fraud and terrorism. It has been ruled that annulment of election results and is that the electors should not have been deprived of their right to vote which was rather
consequent disenfranchisement of voters is a very stringent one. The power to apparent in the case at bar.
annul an election should be exercised with the greatest care and circumspection
and only in extreme cases and under circumstances which demonstrate beyond
doubt and to the fullest degree of fundamental and wanton disregard of the law.
(Grand Alliance for Democracy [GAD] vs. Comelec, 150 SCRA 665; Reyes vs.Mamba,
HRET Case No. 92-022, September 14, 1994).

We cannot agree with the COMELEC that petitioner, his followers or the constituents
must be charged with notice of the special elections to be held because of the failure of
5. BAGO P. PASANDALAN vs. COMMISSION ON ELECTIONS and BAI SALAMONA L. hearing, call for the holding or continuation of the election not held, suspended or
ASUM, G.R. No. 150312, July 18, 2002 which resulted in a failure to elect but not later than thirty days after the
cessation of the cause of such postponement or suspension of the election or
Facts: failure to elect.

Pasandalan and Asum were candidates for mayor in the Municipality of Lumbayanague, The Courts exercise the power to declare a failure of election with deliberate caution so
Lanao Del Sur during the May 14, 2001 elections. Pasandalan filed a petition before the as not to disenfranchise the electorate. The fact alone that actual voting took place
Comelec seeking to nullify the election results on certain barangays: already militates against Pasandalans cause. Also, Pasandalans allegations of terrorism
1) the Cafgus indiscriminately fired their firearms causing the voters to panic and leave and fraud are not sufficient to warrant a nullification of the election in the absence of any
the pooling percints; of the three instances justifying a declaration of failure of election. Terrorism may not be
2) the supporters of Asum allegedly took the official ballots, filled them up with the name invoked to declare a failure of election and to disenfranchise the greater number of the
of Asum; electorate through the misdeeds of only a few, absent any of the three instances specified
3) the Board of Election inspectors allegedly failed to sign their initials at the back of by law.
several official ballots but it only signed during the counting of votes; and a technical
examination would show that only a few persons who voted during the said election. To warrant a declaration of failure of election on the ground of fraud, the fraud must
prevent or suspend the holding of an election, or may fatally the preparation,
Respondent Asum denied the allegation on the ground that the gunshots were heard transmission, custody and canvass of the election returns.
around 2;35 p.m. and not at the start of the voting. On June 30, 2001, Asum was
proclaimed as a winner. The allegations of massive substitution of voters, multiple voting, and other electoral
anomalies should be resolved in a proper election protest in the absence of any of the
The Comelec ruled in favor of Asum stating that the power to declare a failure of election three instances justifying a declaration of failure of election.
could be exercised only in three instances: 1) the election is not held; 2) the election is
suspended; and 3) the election results in a failure to elect. None of these grounds relied The nullification of elections or declaration of failure of elections is an extraordinary
upon by Pasandalan justifying a declaration of failure of election. But Pasandalan alleges remedy. The party who seeks the nullification of an election has the burden of proving
that fraud and terrorism, massive distribution of voters, firing of guns and failure to sign entitlement to this remedy. It is not enough that a verified petition is filed. The
of the BEI. But the Comelec ruled that the said allegations are better ventilated in an allegations in the petition must make out a prima facie case for the declaration of failure
election contest. of election, and convincing evidence must substantiate the allegations. Pasandalans
evidence consisted only of affidavits by its poll watchers which are considered
Issue: insufficient because it suffered from both extrinsic and intrinsic invalidity, the contents
of the affidavits are identical, and the affidavits contain inconsistent statements.
WON the Comelec committed grave abuse of discretion amounting to lack of jurisdiction
in not annulling the election or declaring a failure of election. Thus, there is NO grave abuse of discretion on the part of the Comelec when the petition
was dismissed motu propio. The fact that a verified petition has been filed does not
Ruling. mean that a hearing on the case should first be held before Comelec can act on it. The
petition to declare a failure of election and/or to annul election results must show on its
The Comelec correctly dismissed the petition for declaration of failure of election face that the conditions necessary to declare a failure to elect are present. In their
because the irregularities alleged in the petition should have been raised in an election absence, the petition must be denied outright. Nor a petitioner can complain a denial of
protest, not in a petition to declare a failure of election. Under RA No. 7166 or due process, on this score, for his failure to properly file an election protest. The
Synchronized Elections Law of 991 states, the Comelec en Banc is empowered to declare Comelec can only rule on what was filed before it.
a failure of under Section 6 of the Omnibus Election Code prescribes the conditions, thus:
6. SABDULLAH T. MACABAGO vs. COMMISSION ON ELECTIONS and JAMAEL M.
Section 6. Failure of Election- If, on account of force majeure, violence, terrorism, SALACOP, G.R. No. 152163, November 18, 2002
fraud and 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 Facts:
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 On May 22, 2001, petitioner Sabdullah T. Macabago was proclaimed by the Municipal
election results in a failure to elect, and in any of such cases the failure or Board of Canvassers as the winning candidate for the position of Municipal Mayor of
suspension of election would affect the result of the election, the Commission shall, Saguiran, Lanao del Sur. Petitioner had a lead of 198 votes over his adversary, private
on the basis of a verified petition by any interested party and after due notice and respondent Jamael M. Salacop.
On June 1, 2001, private respondent filed a petition with the Commission on Elections data of some election returns were not filled up, the ballot boxes were brought to the
(COMELEC) against petitioner and the proclaimed Vice-Mayor and Municipal Councilors, municipal hall without padlocks and seals, and that there was a delay in the delivery of
as well as the members of the Municipal Board of Canvassers, docketed as SPC-01-234, to the election returns are not grounds for the declaration of failure of election.
annul the elections and the proclamation of candidates in the Municipality of Saguiaran,
Lanao del Sur. Private respondent alleged that there was a massive substitution of Therefore there was no failure of election.
voters, rampant and pervasive irregularities in voting procedures in Precincts Nos. 19,
20, 28 and 29, and a failure of the Board of Election Inspectors (BEI) to comply with Before the COMELEC can grant a verified petition seeking to declare a failure of election,
Sections 28 and 29 of Comelec Resolution No. 3743 and Section 193 of the Omnibus the concurrence of two (2) conditions must be established, namely: (a) no voting has
Election Code, thus rendering the election process in those precincts a sham and a taken place in the precincts concerned on the date fixed by law or, even if there was
mockery and the proclamation of the winning candidates a nullity. Private respondent voting, the election nevertheless resulted in a failure to elect; (b) the votes cast would
further averred that if his petition were to be given due course, he would win by a affect the result of the election.
margin of one hundred ninety-four (194) votes over the votes of petitioner.
The Court declared in Ricardo Canicosa vs. Commission on Elections, et al., that there are
He thus prayed: this Honorable Commission that the election results in Precincts 19, 20, only three (3) instances where a failure of election may be declared;
28 and 29 be ordered set aside and considered excluded and the proclamation of the "x x x (a) the election in any polling place has not been held on the date fixed on
winning candidates in the said municipality be ANNULLED to reflect the genuine desire account of force majeure, violence, terrorism, fraud, or other analogous causes;
of the majority of the people. (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,
He attached photocopies of random Voters Registration Records (VRRs) evidencing the terrorism, fraud, or other analogous causes;
fraud and deceit that allegedly permeated the electoral process, as well as affidavits (c) after the voting and during the preparation and transmission of the election
tending to prove that serious irregularities were committed in the conduct of the returns or in the custody or canvass thereof, such election results in a failure to
elections in the subject precincts. elect on account of force majeure, violence, terrorism, fraud, or other analogous
causes."
The COMELEC En Banc took cognizance of the petition and on February 11, 2002, issued
an order directing the Election Officer of Saguiran, Lanao del Sur, to bring to and produce SECTION 7 CALL OF SPECIAL ELECTION (Case Digests)
before the COMELEC Office in Manila the original VRRs of the questioned precincts for
technical examination: COMELEC concluded that there was convincing proof of massive ARTICLE VI OF THE 1987 CONSTITUTION
fraud in the conduct of the elections in the four (4) precincts that necessitated a technical Section 9. In case of vacancy in the Senate or in the House of Representatives, a special
examination of the original copies of the VRRs and their comparison with the voters' election may be called to fill such vacancy in the manner prescribed by law, but the
signatures and fingerprints. The COMELEC further noted that since the lead of Macabago Senator or Member of the House of Representatives thus elected shall serve only for the
was only 124 votes vis--vis the 474 voters of the contested precincts, the outcome of the unexpired term.
petition would adversely affect the result of the elections in the Municipality.
1. JOSE MARI EULALIO C. LOZADA and ROMEO B. IGOT, petitioners, vs. THE
COMELEC declared that contrary to petitioner's claims, the petition did not allege a pre- COMMISSION ON ELECTIONS, G.R. No. L-59068, January 27, 1983
proclamation controversy. The Commission characterized the petition as one for the
annulment of the election or declaration of failure of election in the municipality Facts:

Issue: Lozada together with Igot filed a petition for mandamus compelling the COMELEC to
hold an election to fill the vacancies in the Interim Batasang Pambansa (IBP). They
Whether or not there is a failure of election on the grounds stated in the case. anchor their contention on Sec 5 (2), Art 8 of the 1973 Constitution which provides: In
case a vacancy arises in the Batasang Pambansa eighteen months or more before a
Ruling: regular election, the Commission on Election shall call a special election to be held within
sixty (60) days after the vacancy occurs to elect the Member to serve the unexpired
While fraud is a ground to declare a failure of election, such fraud must be one that term. COMELEC opposes the petition alleging, substantially, that 1) petitioners lack
prevents or suspends the holding of an election, including the preparation and standing to file the instant petition for they are not the proper parties to institute the
transmission of the election returns. "Failure to elect" must be understood in its literal action; 2) this Court has no jurisdiction to entertain this petition; and 3) Section 5(2),
sensewhich is, nobody emerges as a winner. The fact that the names of some Article VIII of the 1973 Constitution does not apply to the Interim Batasan Pambansa.
registered voters were omitted from the list of voters, strangers voted for some of the
registered voters, a candidate was credited with less votes than he received, the control
Issue: And even if the votes from the three excluded precincts were added, private respondent
still emerged as the winner.
Whether or not the SC can compel COMELEC to hold a special election to fill vacancies in
the legislature. Petitioner then filed a petition to declare failure of election and to call a special election.
COMELEC however denied the petition and affirmed the proclamation.
Ruling:
Issues:
The SCs jurisdiction over the COMELEC is only to review by certiorari the latters
decision, orders or rulings. This is as clearly provided in Article XII-C, Section 11 of the 1. Whether or not the COMELEC acted with grave abuse of discretion amounting to lack
New Constitution which reads: Any decision, order, or ruling of the Commission may be or excess of jurisdiction (a) in dismissing the petition of petitioner docketed as spa no.
brought to the Supreme Court on certiorari by the aggrieved party within thirty days 98-333 (including SPC 98-159 which was consolidated to spa 98-333 by order of the
from his receipt of a copy thereof. There is in this case no decision, order or ruling of the COMELEC on June 10, 1998) for lack of merit and (b) in declaring that the elections in
COMELEC which is sought to be reviewed by this Court under its certiorari jurisdiction precincts 6a & 6a1, 15a and 17a have continued an hour after they were suspended on
as provided for in the aforequoted provision, which is the only known provision the basis of the alleged final report of captain manquiquis;
conferring jurisdiction or authority on the Supreme Court over the COMELEC. 2. Whether or not the COMELEC acted with grave abuse of discretion amounting to lack
or excess of jurisdiction in not holding a special election in precinct nos. 15a, 6a & 6a1
It is obvious that the holding of special elections in several regional districts where and 17a on ground of failure of election or of a suspended election before the closing of
vacancies exist, would entail huge expenditure of money. Only the Batasang Pambansa the voting at 3:00 o'clock in the afternoon of the May 11, 1998 election day on ground of
(BP) can make the necessary appropriation for the purpose, and this power of the BP threats, violence and terrorism; and
may neither be subject to mandamus by the courts much less may COMELEC compel the 3. Whether or not the COMELEC acted with grave abuse of discretion amounting to lack
BP to exercise its power of appropriation. From the role BP has to play in the holding of or excess of jurisdiction in not annulling the certificate of proclamation of private
special elections, which is to appropriate the funds for the expenses thereof, it would respondent dated may 15, 1998.
seem that the initiative on the matter must come from the BP, not the COMELEC, even
when the vacancies would occur in the regular not IBP. The power to appropriate is the Ruling:
sole and exclusive prerogative of the legislative body, the exercise of which may not be
compelled through a petition for mandamus. What is more, the provision of Section 5(2), Petition Dismissed.
Article VIII of the Constitution was intended to apply to vacancies in the regular National
Assembly, now BP, not to the IBP. 1. Two preconditions must exist before a failure of election may be declared: (1) no
voting has been held in any precinct due to force majeure, violence or terrorism; and (2)
2. ZAIPAL D. BENITO vs. COMMISSION ON ELECTIONS, IBRAHIM PAGAYAWAN, and the votes not cast therein are sufficient to affect the results of the election. The cause of
the MUNICIPAL BOARD OF CANVASSERS OF CALANOGAS, LANAO DEL SUR, G.R. No. such failure may arise before or after the casting of votes or on the day of the election.
134913, January 19, 2001
2. Whether there was a resumption of voting is essentially a question of fact. Such are not
Facts: proper subjects of inquiry in a petition for certiorari under Rule 65.

Benito and private respondent Pagayawan were 2 of 8 candidates vying for the position 3. Voting in all five precincts resumed after peace and order was re-established in the
of municipal mayor in Calanogas, Lanao del Sur during the May 11, 1998 elections. 5 Disimban Elementary School. There was no objection raised to the count of votes in the
precincts clustered in the Sultan Disimban Elementary School were met with violence said two precincts during the counting of votes at the counting center. So why a selective
when some 30 armed men appeared at the school premises and fired shots into the air. objection to the three precincts herein?
This sowed panic among the voters and elections officials, causing them to scatter in
different directions. It happened before noon at the day of election. A spot report 4. Petitioner equates failure of elections to the low percentage of votes cast vis--vis the
reported the incident. number of registered voters in the subject election precincts. However, there can be a
failure of election in a political unit only if the will of the majority has been defiled and
Both parties are contending contrary facts. Petitioner alleged that the voting never cannot be ascertained. But if it can be determined, it must be accorded respect. After all,
resumed even after the lawless elements left. On the other hand, private respondent there is no provision in our election laws which requires that a majority of registered
alleged that voting resumed when the armed men left around 1 pm in the afternoon. voters must cast their votes. All the law requires is that a winning candidate must be
Petitioner is only asking, however, a declaration of failure of elections on the first three elected by a plurality of valid votes, regardless of the actual number of ballots cast.
precincts, not with the entire five precincts. During the counting, the ballots from the
three precincts were excluded. Nevertheless, the winner was the private respondent.
5. The power to throw out or annul an election should be exercised with the utmost care Villaber filed with this Court a petition for review on certiorari assailing the CAs
and only under circumstances which demonstrate beyond doubt either that the Decision. However, in its Resolution of October 26, 1992, this Court (Third Division)
disregard of the law had been so fundamental or so persistent and continuous that it is dismissed the petition. On February 2, 1993, our Resolution became final and executory.
impossible to distinguish what votes are lawful and what are unlawful, or to arrive at any Cagas also asserted that Villaber made a false material representation in his certificate of
certain result whatsoever, or that the great body of voters have been prevented by candidacy that he is Eligible for the office I seek to be elected which false statement is
violence, intimidation and threats from exercising their franchise. a ground to deny due course or cancel the said certificate pursuant to Section 78 of the
Omnibus Election Code.
SECTION 11 FAILURE TO ASSUME OFFICE
In his answer to the disqualification suit, Villaber countered mainly that his conviction
REVISED PENAL CODE has not become final and executory because the affirmed Decision was not remanded to
Article 234. Refusal to discharge elective office. - The penalty of arresto mayor or a the trial court for promulgation in his presence. Furthermore, even if the judgment of
fine not exceeding 1,000 pesos, or both, shall be imposed upon any person who, having conviction was already final and executory, it cannot be the basis for his disqualification
been elected by popular election to a public office, shall refuse without legal motive to be since violation of B.P. Blg. 22 does not involve moral turpitude.
sworn in or to discharge the duties of said office.
After the opposing parties submitted their respective position papers, the case was
SECTION 12 DISQUALIFICATIONS (Case Digests) forwarded to the COMELEC, Manila, for resolution.

(Republic Act No. 7160) LOCAL GOVERNMENT CODE OF 1991 On April 30, 2001, the COMELEC finding merit in Cagas petition, issued the challenged
Section 40. Disqualifications. - The following persons are disqualified from running for Resolution declaring Villaber disqualified as a candidate for and from holding any
any elective local position: elective public office and canceling his certificate of candidacy. The COMELEC ruled that
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an a conviction for violation of B.P Blg. 22 involves moral turpitude following the ruling of
offense punishable by one (1) year or more of imprisonment, within two (2) years after this Court en banc in the administrative case of People vs. Atty. Fe Tuanda. Villaber filed
serving sentence; a motion for reconsideration but was denied by the COMELEC en banc in a Resolution.
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic; Hence, this petition.
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad; Issue:
(f) Permanent residents in a foreign country or those who have acquired the right to
reside abroad and continue to avail of the same right after the effectivity of this Code; The sole issue for our Resolution is whether or not violation of B.P. Blg. 22 involves
and moral turpitude.
(g) The insane or feeble-minded.
Ruling:
1. PABLO C. VILLABER vs. COMMISSION ON ELECTIONS and REP. DOUGLAS R.
CAGAS, G.R. No. 148326, November 15, 2001 The COMELEC believes it is. In disqualifying petitioner Villaber from being a candidate
for Congressman, the COMELEC applied Section 12 of the Omnibus Election Code which
Facts: provides:

Petitioner Villaber and respondent Douglas R. Cagas were rival candidates for a Sec. 12. Disqualifications. Any person who has been declared by competent
congressional seat in the First District of Davao del Sur during the May 14, 2001 authority insane or incompetent, or has been sentenced by final judgment for
elections. Villaber filed his certificate of candidacy for Congressman on February 19, subversion, insurrection, rebellion, or for any offense for which he has been
2001, while Cagas filed his on February 28, 2001. sentenced to a penalty of more than eighteen months, or for a crime involving
moral turpitude, shall be disqualified to be a candidate and to hold any office,
On March 4, 2001, Cagas filed with the Office of the Provincial Election Supervisor of unless he has been given plenary pardon or granted amnesty.
COMELEC Davao del Sur, a consolidated petition to disqualify Villaber and to cancel the
latters certificate of candidacy due to the fact that Villaber was convicted by the RTC for The disqualifications to be a candidate herein provided shall be deemed removed upon
violation of BP22 and was sentenced to suffer 1 year imprisonment. The check that the declaration by competent authority that said insanity or incompetence had been
bounced was in the sum of P100,000.00. Cagas further alleged that this crime involves removed or after the expiration of a period of five years from his service of sentence,
moral turpitude; hence, under Section 12 of the Omnibus Election Code, he is disqualified unless within the same period he again becomes disqualified.
to run for any public office. On appeal, the CA affirmed the RTC Decision. Undaunted,
As to the meaning of moral turpitude, we have consistently adopted the definition in The presence of the second element manifests moral turpitude. We held that a conviction
Blacks Law Dictionary as an act of baseness, vileness, or depravity in the private duties for violation of B.P. Blg. 22 imports deceit and certainly relates to and affects the good
which a man owes his fellow men, or to society in general, contrary to the accepted and moral character of a person.Thus, paraphrasing Blacks definition, a drawer who
customary rule of right and duty between man and woman, or conduct contrary to issues an unfunded check deliberately reneges on his private duties he owes his fellow
justice, honesty, modesty, or good morals. men or society in a manner contrary to accepted and customary rule of right and duty,
justice, honesty or good morals.
In In re Vinzon,the term moral turpitude is considered as encompassing everything
which is done contrary to justice, honesty, or good morals. In fine, we find no grave abuse of discretion committed by respondent COMELEC in
issuing the assailed Resolutions.
We, however, clarified in Dela Torre vs. Commission on Elections that not every
criminal act involves moral turpitude, and that as to what crime involves moral WHEREFORE, the petition is DISMISSED. Costs against petitioner. SO ORDERED.
turpitude is for the Supreme Court to determine.We further pronounced therein that:
in International Rice Research Institute vs. NLRC, the Court admitted that it cannot 2. NESTOR B. MAGNO, petitioner, vs. COMMISSION ON ELECTIONS and CARLOS C.
always be ascertained whether moral turpitude does or does not exist by merely MONTES, G.R. No. 147904, October 4, 2002
classifying a crime as malum in se or as malum prohibitum. In the final analysis, whether
or not a crime involves moral turpitude is ultimately a question of fact and frequently Facts:
depends on the circumstances surrounding the case.
Carlos Montes filed a petition for the disqualification of Nestor Magno as mayoralty
In the case at bar, petitioner does not assail the facts and circumstances surrounding the candidate of San Isidro, Nueva Ecija during the May 14, 2001 elections on the ground
commission of the crime. In effect, he admits all the elements of the crime for which he that the latter was previously convicted by the Sandiganbayan of four counts of direct
was convicted. At any rate, the question of whether or not the crime involves moral bribery.
turpitude can be resolved by analyzing its elements alone, as we did in Dela Torre which
involves the crime of fencing punishable by a special law. COMELEC granted the petition and declared Magno disqualified from running for the
position of mayor since direct bribery is a crime involving moral turpitude, citing Section
Petitioner was charged for violating B.P. Blg. 22 under the following Information: 12 of the Omnibus Election Code which provides as follows:

That on or about February 13, 1986, in the City of Manila, Philippines, the said Sec. 12. Disqualifications. Any person who has been declared by competent
accused did then and there willfully, unlawfully and feloniously make or draw authority insane or incompetent, or has been sentenced by final judgment for
and issue to Efren D. Sawal to apply on account or for value Bank of Philippine subversion, insurrection, rebellion or for any offense for which he has been
Islands (Plaza Cervantes, Manila) Check No. 958214 dated February 13, 1986 sentenced to a penalty of more than eighteen (18) months, or for a crime
payable to Efren D. Sawal in the amount of P100,000.00, said accused well involving moral turpitude, shall be disqualified to be a candidate and to hold
knowing that at the time of issue he did not have sufficient funds in or credit any office, unless he has been given plenary pardon, or granted amnesty.
with the drawee bank for payment of such check in full upon its presentment,
which check, when presented for payment within ninety (90) days from the According to the COMELEC, inasmuch as Magno completed the service of his sentence on
date thereof, was subsequently dishonored by the drawee bank for March 5, 1998 when was discharged from probation, his five-year disqualification will
insufficiency of funds, and despite receipt of notice of such dishonor, said end only on March 5, 2003. COMELEC denied the motion for reconsideration. Hence, this
accused failed to pay said Efren D. Sawal the amount of said check or to make petition.
arrangement for full payment of the same within five (5) banking days after
receiving said notice. (Emphasis ours) Magno argued that direct bribery is not a crime involving moral turpitude. Likewise, he
claims that Section 40 of RA 7160, otherwise known as the Local Government Code of
The elements of the offense under the above provision are: 1991, is the law applicable to the case, not the Omnibus Election Code as claimed by the
1. The accused makes, draws or issues any check to apply to account or for value; COMELEC. Said provision reads:
2. The accused knows at the time of the issuance that he or she does not have sufficient
funds in, or credit with, the drawee bank for the payment of the check in full upon its Section 40. Disqualifications. - The following persons are disqualified from
presentment; and running for any elective local position:
3. The check is subsequently dishonored by the drawee bank for insufficiency of funds or (a) Those sentenced by final judgment for an offense involving moral turpitude
credit, or it would have been dishonored for the same reason had not the drawer, or for an offense punishable by one (1) year or more of imprisonment, within
without any valid reason, ordered the bank to stop payment. two (2) years after serving sentence.
xxx
Magno insists that he had already served his sentence as of March 5, 1998 when he was The Omnibus Election Code was enacted in 1985 while the Local Government Code
discharged from probation. Such being the case, the two-year disqualification period became a law in 1992. It is basic in statutory construction that in case of irreconcilable
imposed by Section 40 of the Local Government Code expired on March 5, 2000. Thus, conflict between two laws, the later enactment must prevail, being the more recent
he was qualified to run in the 2001 elections. expression of legislative will. Legis posteriores priores contrarias abrogant. In enacting
the later law, the legislature is presumed to have knowledge of the older law and
Issue: intended to change it.

Whether or not direct bribery is a crime involving moral turpitude Furthermore, the repealing clause of Section 534 of the Local Government Code states
that: (f) All general and special laws, acts, city charters, decrees, executive orders,
Ruling: proclamations and administrative regulations, or part or parts thereof which are
inconsistent with any provisions of this Code are hereby repealed or modified
Moral turpitude is defined as an act of baseness, vileness, or depravity in the private accordingly. In accordance therewith, Section 40 of the LGC is deemed to have repealed
duties which a man owes his fellow men, or to society in general, contrary to the Section 12 of the OEC.
accepted and customary rule of right and duty between man and woman or conduct
contrary to justice, honesty, modesty, or good morals. Furthermore, Article 7 of the Civil Code provides that laws are repealed only by
subsequent ones, and not the other way around. When a subsequent law entirely
However, not every criminal act involves moral turpitude. It frequently depends on the encompasses the subject matter of the former enactment, the latter is deemed repealed.
circumstances surrounding the violation of the law. In this case, by applying for The intent of the legislature to reduce the disqualification period of candidates for local
probation, Magno in effect admitted all the elements of the crime of direct bribery: positions from five to two years is evident. The cardinal rule in the interpretation of all
1. The offender is a public officer; laws is to ascertain and give effect to the intent of the law. The reduction of the
2. The offender accepts an offer or promise or receives a gift or present by himself or disqualification period from five to two years is the manifest intent.
through another;
3. Such offer or promise be accepted or gift or present be received by the public officer Therefore, although his crime of direct bribery involved moral turpitude, petitioner
with a view to committing some crime, or in consideration of the execution of an act nonetheless could not be disqualified from running in the 2001 elections. Article 12 of
which does not constitute a crime but the act must be unjust, or to refrain from doing the Omnibus Election Code (BP 881) must yield to Article 40 of the Local Government
something which it is his official duty to do; and Code (RA 7160). Petitioners disqualification ceased as of March 2000.
4. The act which the offender agrees to perform or which he executes is connected with
the performance of his official duties.

Moral turpitude can be inferred from the third element. The fact that the offender agrees
to accept a promise or gift and deliberately commits an unjust act or refrains from
performing an official duty in exchange for some favors, denotes a malicious intent on
the part of the offender to renege on the duties which he owes his fellowmen and society
in general.

Also, the fact that the offender takes advantage of his office and position is a betrayal of
the trust reposed on him by the public. It is a conduct clearly contrary to the accepted
rules of right and duty, justice, honesty and good morals. In all respects, direct bribery is
a crime involving moral turpitude.

Issue:

What law should apply in the case?

Ruling:

The Local Government Code.

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