1
Cayetano vs. Monsod
1. Constitutional Law; Qualifications of COMELEC
Chairman; “Practice of law” defined.-
Practice of law means any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and experience.
“To engage in the practice of law is to perform those acts which are
characteristics of the profession. Generally, to practice law is to give notice
or render any kind of service, which device or service requires the use in
any degree of legal knowledge or skill.” (111 ALR 23) Interpreted in the light
of the various definitions of the term “practice of law”, particularly the
modern concept of law practice, and taking into consideration the liberal
construc-tion intended by the framers of the Constitution, Atty. Monsod’s
past work experiences as a lawyer-economist, a lawyer-manager, a
lawyerentrepreneur of industry, a lawyer-negotiator of contracts, and a
lawyer-legislator of both the rich and the poor—verily more than satisfy the
constitutional requirement—that he has been engaged in the practice of law
for at least ten years.
2. Constitutional Law; Qualifications of COMELEC Chairman; Judicial
review of judgments rendered by the Commission on Appointments.+
3. Constitutional Law; Qualifications of COMELEC
Chairman; Definition of “Practice of Law".-
What constitutes practice of law? As commonly understood, “practice”
refers to the actual performance or application of knowledge as
distinguished from mere possession of knowledge; it connotes an active,
habitual, repeated or customary action. To “practice” law, or any profession
for that matter, means, to exercise or pursue an employment or profession
actively, habitually, repeatedly or customarily. Therefore, a doctor of
medicine who is employed and is habitually performing the tasks of a
nursing aide, cannot be said to be in the “practice of medicine.” A certified
public accountant who works as a clerk, cannot be said to practice his
profession as an accountant. In the same way, a lawyer who is employed
as a business executive or a corporate manager, other than as head or
attorney of a Legal Department of a corporation or a governmental agency,
cannot be said to be in the practice of law.
4. Constitutional Law; Qualifications of COMELEC
Chairman; Definition of “Practice of Law".-
The Constitution uses the phrase “engaged in the practice of law for at least
ten years.” The deliberate choice of words shows that the practice
envisioned is active and regular, not isolated, occasional, accidental,
intermittent, incidental, seasonal, or extemporaneous. To be “engaged” in
an activity for ten years requires committed participation in something
which is the result of one’s decisive choice. It means that one is occupied
and involved in the enterprise; one is obliged or pledged to carry it out with
intent and attention during the ten-year period.
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON
APPOINTMENT, and HON. GUILLERMO CARAGUE, in his capacity as
Secretary of Budget and Management, respondents.
We are faced here with a controversy of far-reaching proportions. While
ostensibly only legal issues are involved, the Court's decision in this case
would indubitably have a profound effect on the political aspect of our
national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six
Commissioners who shall be natural-born citizens of the Philippines and, at
the time of their appointment, at least thirty-five years of age, holders of a
college degree, and must not have been candidates for any elective position
in the immediately preceding -elections. However, a majority thereof,
including the Chairman, shall be members of the Philippine Bar who have
been engaged in the practice of law for at least ten years. (Emphasis
supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the
1973 Constitution which similarly provides:
There shall be an independent Commission on Elections composed of a
Chairman and eight Commissioners who shall be natural-born citizens of the
Philippines and, at the time of their appointment, at least thirty-five years of
age and holders of a college degree. However, a majority thereof, including
the Chairman, shall be members of the Philippine Bar who have been
engaged in the practice of law for at least ten years.' (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what
constitutes practice of law as a legal qualification to an appointive office.
Black defines "practice of law" as:
The rendition of services requiring the knowledge and the application of legal
principles and technique to serve the interest of another with his consent. It is
not limited to appearing in court, or advising and assisting in the conduct of
litigation, but embraces the preparation of pleadings, and other papers
incident to actions and special proceedings, conveyancing, the preparation of
legal instruments of all kinds, and the giving of all legal advice to clients. It
embraces all advice to clients and all actions taken for them in matters
connected with the law. An attorney engages in the practice of law by
maintaining an office where he is held out to be-an attorney, using a
letterhead describing himself as an attorney, counseling clients in legal
matters, negotiating with opposing counsel about pending litigation, and
fixing and collecting fees for services rendered by his associate. (Black's Law
Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title
Abstract and Trust Co. v. Dworken, 129 Ohio St. 23, 193 N.E. 650) A person
is also considered to be in the practice of law when he:
... for valuable consideration engages in the business of advising person,
firms, associations or corporations as to their rights under the law, or appears
in a representative capacity as an advocate in proceedings pending or
prospective, before any court, commissioner, referee, board, body,
committee, or commission constituted by law or authorized to settle
controversies and there, in such representative capacity performs any act or
acts for the purpose of obtaining or defending the rights of their clients under
the law. Otherwise stated, one who, in a representative capacity, engages in
the business of advising clients as to their rights under the law, or while so
engaged performs any act or acts either in court or outside of court for that
purpose, is engaged in the practice of law. (State ex. rel. Mckittrick v..C.S.
Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil.
173,176-177) stated:
The practice of law is not limited to the conduct of cases or litigation in court;
it embraces the preparation of pleadings and other papers incident to actions
and special proceedings, the management of such actions and proceedings
on behalf of clients before judges and courts, and in addition, conveying. In
general, all advice to clients, and all action taken for them in matters
connected with the law incorporation services, assessment and
condemnation services contemplating an appearance before a judicial body,
 2
the foreclosure of a mortgage, enforcement of a creditor's claim in Section I is that "They must be Members of the Philippine Bar" — I am
bankruptcy and insolvency proceedings, and conducting proceedings in quoting from the provision — "who have been engaged in the practice of law
attachment, and in matters of estate and guardianship have been held to for at least ten years".
constitute law practice, as do the preparation and drafting of legal
instruments, where the work done involves the determination by the trained
legal mind of the legal effect of facts and conditions. (5 Am. Jr. p. 262, 263).
(Emphasis supplied) To avoid any misunderstanding which would result in excluding members of
the Bar who are now employed in the COA or Commission on Audit, we
would like to make the clarification that this provision on qualifications
regarding members of the Bar does not necessarily refer or involve actual
Practice of law under modem conditions consists in no small part of work practice of law outside the COA We have to interpret this to mean that as
performed outside of any court and having no immediate relation to long as the lawyers who are employed in the COA are using their legal
proceedings in court. It embraces conveyancing, the giving of legal advice knowledge or legal talent in their respective work within COA, then they are
on a large variety of subjects, and the preparation and execution of legal qualified to be considered for appointment as members or commissioners,
instruments covering an extensive field of business and trust relations and even chairman, of the Commission on Audit.
other affairs. Although these transactions may have no direct connection
with court proceedings, they are always subject to become involved in
litigation. They require in many aspects a high degree of legal skill, a wide
experience with men and affairs, and great capacity for adaptation to This has been discussed by the Committee on Constitutional Commissions
difficult and complex situations. These customary functions of an attorney and Agencies and we deem it important to take it up on the floor so that this
or counselor at law bear an intimate relation to the administration of justice interpretation may be made available whenever this provision on the
by the courts. No valid distinction, so far as concerns the question set forth qualifications as regards members of the Philippine Bar engaging in the
in the order, can be drawn between that part of the work of the lawyer which practice of law for at least ten years is taken up.
involves appearance in court and that part which involves advice and
drafting of instruments in his office. It is of importance to the welfare of the
public that these manifold customary functions be performed by persons
MR. OPLE. Will Commissioner Foz yield to just one question.
possessed of adequate learning and skill, of sound moral character, and
acting at all times under the heavy trust obligations to clients which rests
upon all attorneys. (Moran, Comments on the Rules of Court, Vol. 3 [1953
ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, MR. FOZ. Yes, Mr. Presiding Officer.
quoted in Rhode Is. Bar Assoc. v. Automobile Service Assoc. [R.I.] 179 A.
139,144). (Emphasis ours)

The University of the Philippines Law Center in conducting orientation
briefing for new lawyers (1974-1975) listed the dimensions of the practice of
law in even broader terms as advocacy, counselling and public service.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is
equivalent to the requirement of a law practice that is set forth in the Article
on the Commission on Audit?

One may be a practicing attorney in following any line of employment in the
profession. If what he does exacts knowledge of the law and is of a kind
usual for attorneys engaging in the active practice of their profession, and
he follows some one or more lines of employment such as this he is a
practicing attorney at law within the meaning of the statute. (Barr v. Cardell,
155 NW 312)
MR. FOZ. We must consider the fact that the work of COA, although it is
auditing, will necessarily involve legal work; it will involve legal work. And,
therefore, lawyers who are employed in COA now would have the necessary
qualifications in accordance with the Provision on qualifications under our
provisions on the Commission on Audit. And, therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is
equivalent to the practice of law.

Practice of law means any activity, in or out of court, which requires the
application of law, legal procedure, knowledge, training and experience. "To
engage in the practice of law is to perform those acts which are MR. FOZ. Yes, Mr. Presiding Officer.
characteristics of the profession. Generally, to practice law is to give notice
or render any kind of service, which device or service requires the use in
any degree of legal knowledge or skill." (111 ALR 23)
MR. OPLE. Thank you.

The following records of the 1986 Constitutional Commission show that it

... ( Emphasis supplied)
has adopted a liberal interpretation of the term "practice of law."

MR. FOZ. Before we suspend the session, may I make a manifestation
which I forgot to do during our review of the provisions on the Commission
on Audit. May I be allowed to make a very brief statement?
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others,
that the Chairman and two Commissioners of the Commission on Audit (COA)
should either be certified public accountants with not less than ten years of
auditing practice, or members of the Philippine Bar who have been engaged
in the practice of law for at least ten years. (emphasis supplied)

THE PRESIDING OFFICER (Mr. Jamir).

Corollary to this is the term "private practitioner" and which is in many ways
synonymous with the word "lawyer." Today, although many lawyers do not
The Commissioner will please proceed. engage in private practice, it is still a fact that the majority of lawyers are
private practitioners. (Gary Munneke, Opportunities in Law Careers [VGM
Career Horizons: Illinois], [1986], p. 15).

MR. FOZ. This has to do with the qualifications of the members of the
Commission on Audit. Among others, the qualifications provided for by
 3
At this point, it might be helpful to define private practice. The term, as
commonly understood, means "an individual or organization engaged in the
business of delivering legal services." (Ibid.). Lawyers who practice alone
are often called "sole practitioners." Groups of lawyers are called "firms."
The firm is usually a partnership and members of the firm are the partners.
Some firms may be organized as professional corporations and the
members called shareholders. In either case, the members of the firm are
the experienced attorneys. In most firms, there are younger or more
inexperienced salaried attorneyscalled "associates." (Ibid.).
The test that defines law practice by looking to traditional areas of law
practice is essentially tautologous, unhelpful defining the practice of law as
that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West
Publishing Co.: Minnesota, 1986], p. 593). The practice of law is defined as
the performance of any acts . . . in or out of court, commonly understood to
be the practice of law. (State Bar Ass'n v. Connecticut Bank & Trust Co.,
145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v.
Payne, 128 Conn. 325, 22 A.2d 623, 626 [1941]). Because lawyers perform
almost every function known in the commercial and governmental realm,
such a definition would obviously be too global to be workable.(Wolfram, op.
cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the
most publicly familiar role for lawyers as well as an uncommon role for the
average lawyer. Most lawyers spend little time in courtrooms, and a large
percentage spend their entire practice without litigating a case. (Ibid., p.
593). Nonetheless, many lawyers do continue to litigate and the litigating
lawyer's role colors much of both the public image and the self perception of
the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects
history, not reality. (Ibid.). Why is this so? Recall that the late Alexander
SyCip, a corporate lawyer, once articulated on the importance of a lawyer
as a business counselor in this wise: "Even today, there are still uninformed
laymen whose concept of an attorney is one who principally tries cases
before the courts. The members of the bench and bar and the informed
laymen such as businessmen, know that in most developed societies today,
substantially more legal work is transacted in law offices than in the
courtrooms. General practitioners of law who do both litigation and
non-litigation work also know that in most cases they find themselves
spending more time doing what [is] loosely desccribe[d] as business
counseling than in trying cases. The business lawyer has been described
as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need
not [be] stress[ed] that in law, as in medicine, surgery should be avoided
where internal medicine can be effective." (Business Star, "Corporate
Finance Law," Jan. 11, 1989, p. 4).
from it some of the salient features of adversarial litigation. Of these special
roles, the most prominent is that of prosecutor. In some lawyers' work the
constraints are imposed both by the nature of the client and by the way in
which the lawyer is organized into a social unit to perform that work. The
most common of these roles are those of corporate practice and government
legal service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted
are emerging trends in corporate law practice, a departure from the
traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary
transformation in corporate law practice. Lawyers and other professional
groups, in particular those members participating in various legal-policy
decisional contexts, are finding that understanding the major emerging trends
in corporation law is indispensable to intelligent decision-making.
Constructive adjustment to major corporate problems of today requires an
accurate understanding of the nature and implications of the corporate law
research function accompanied by an accelerating rate of information
accumulation. The recognition of the need for such improved corporate legal
policy formulation, particularly "model-making" and "contingency planning,"
has impressed upon us the inadequacy of traditional procedures in many
decisional contexts.
In a complex legal problem the mass of information to be processed, the
sorting and weighing of significant conditional factors, the appraisal of major
trends, the necessity of estimating the consequences of given courses of
action, and the need for fast decision and response in situations of acute
danger have prompted the use of sophisticated concepts of information flow
theory, operational analysis, automatic data processing, and electronic
computing equipment. Understandably, an improved decisional structure
must stress the predictive component of the policy-making process, wherein
a "model", of the decisional context or a segment thereof is developed to test
projected alternative courses of action in terms of futuristic effects flowing
therefrom.
Although members of the legal profession are regularly engaged in predicting
and projecting the trends of the law, the subject of corporate finance law has
received relatively little organized and formalized attention in the philosophy
of advancing corporate legal education. Nonetheless, a cross-disciplinary
approach to legal research has become a vital necessity.

Certainly, the general orientation for productive contributions by those trained

In the course of a working day the average general practitioner wig engage
primarily in the law can be improved through an early introduction to
in a number of legal tasks, each involving different legal doctrines, legal
multi-variable decisional context and the various approaches for handling
skills, legal processes, legal institutions, clients, and other interested parties.
such problems. Lawyers, particularly with either a master's or doctorate
Even the increasing numbers of lawyers in specialized practice wig usually
degree in business administration or management, functioning at the legal
perform at least some legal services outside their specialty. And even within
policy level of decision-making now have some appreciation for the concepts
a narrow specialty such as tax practice, a lawyer will shift from one legal
and analytical techniques of other professions which are currently engaged in
task or role such as advice-giving to an importantly different one such as
similar types of complex decision-making.
representing a client before an administrative agency. (Wolfram, supra, p.
687).

Truth to tell, many situations involving corporate finance problems would

require the services of an astute attorney because of the complex legal
By no means will most of this work involve litigation, unless the lawyer is
implications that arise from each and every necessary step in securing and
one of the relatively rare types — a litigator who specializes in this work to
maintaining the business issue raised. (Business Star, "Corporate Finance
the exclusion of much else. Instead, the work will require the lawyer to have
Law," Jan. 11, 1989, p. 4).
mastered the full range of traditional lawyer skills of client counselling,
advice-giving, document drafting, and negotiation. And increasingly lawyers
find that the new skills of evaluation and mediation are both effective for
many clients and a source of employment. (Ibid.). In our litigation-prone country, a corporate lawyer is assiduously referred to
as the "abogado de campanilla." He is the "big-time" lawyer, earning big
money and with a clientele composed of the tycoons and magnates of
business and industry.
Most lawyers will engage in non-litigation legal work or in litigation work that
is constrained in very important ways, at least theoretically, so as to remove
 4
Despite the growing number of corporate lawyers, many people could not
explain what it is that a corporate lawyer does. For one, the number of
attorneys employed by a single corporation will vary with the size and type
of the corporation. Many smaller and some large corporations farm out all
their legal problems to private law firms. Many others have in-house
counsel only for certain matters. Other corporation have a staff large
enough to handle most legal problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles
the legal affairs of a corporation. His areas of concern or jurisdiction may
include, inter alia: corporate legal research, tax laws research, acting out as
corporate secretary (in board meetings), appearances in both courts and
other adjudicatory agencies (including the Securities and Exchange
Commission), and in other capacities which require an ability to deal with
the law.
At any rate, a corporate lawyer may assume responsibilities other than the
legal affairs of the business of the corporation he is representing. These
include such matters as determining policy and becoming involved in
management. ( Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated
from the action, or not understanding how one's work actually fits into the
work of the orgarnization. This can be frustrating to someone who needs to
see the results of his work first hand. In short, a corporate lawyer is
sometimes offered this fortune to be more closely involved in the running of
the business.
Moreover, a corporate lawyer's services may sometimes be engaged by a
multinational corporation (MNC). Some large MNCs provide one of the few
opportunities available to corporate lawyers to enter the international law
field. After all, international law is practiced in a relatively small number of
companies and law firms. Because working in a foreign country is perceived
by many as glamorous, tills is an area coveted by corporate lawyers. In
most cases, however, the overseas jobs go to experienced attorneys while
the younger attorneys do their "international practice" in law libraries.
(Business Star, "Corporate Law Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of
finance. To borrow the lines of Harvard-educated lawyer Bruce Wassertein,
to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one
who perceives the difficulties, and the excellent lawyer is one who
surmounts them." (Business Star, "Corporate Finance Law," Jan. 11, 1989,
p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm,"
so to speak. No longer are we talking of the traditional law teaching method
of confining the subject study to the Corporation Code and the Securities
Code but an incursion as well into the intertwining modern management
issues.
Such corporate legal management issues deal primarily with three (3) types
of learning: (1) acquisition of insights into current advances which are of
particular significance to the corporate counsel; (2) an introduction to usable
disciplinary skins applicable to a corporate counsel's management
responsibilities; and (3) a devotion to the organization and management of
the legal function itself.
These three subject areas may be thought of as intersecting circles, with a
shared area linking them. Otherwise known as "intersecting managerial
jurisprudence," it forms a unifying theme for the corporate counsel's total
learning.
Some current advances in behavior and policy sciences affect the counsel's
role. For that matter, the corporate lawyer reviews the globalization process,
including the resulting strategic repositioning that the firms he provides
counsel for are required to make, and the need to think about a corporation's;
strategy at multiple levels. The salience of the nation-state is being reduced
as firms deal both with global multinational entities and simultaneously with
sub-national governmental units. Firms increasingly collaborate not only with
public entities but with each other — often with those who are competitors in
other arenas.
Also, the nature of the lawyer's participation in decision-making within the
corporation is rapidly changing. The modem corporate lawyer has gained a
new role as a stakeholder — in some cases participating in the organization
and operations of governance through participation on boards and other
decision-making roles. Often these new patterns develop alongside existing
legal institutions and laws are perceived as barriers. These trends are
complicated as corporations organize for global operations. ( Emphasis
supplied)
The practising lawyer of today is familiar as well with governmental policies
toward the promotion and management of technology. New collaborative
arrangements for promoting specific technologies or competitiveness more
generally require approaches from industry that differ from older, more
adversarial relationships and traditional forms of seeking to influence
governmental policies. And there are lessons to be learned from other
countries. In Europe, Esprit, Eureka and Race are examples of collaborative
efforts between governmental and business Japan's MITI is world famous.
(Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate
Counsel comprises a distinct group within the managerial structure of all
kinds of organizations. Effectiveness of both long-term and temporary groups
within organizations has been found to be related to indentifiable factors in
the group-context interaction such as the groups actively revising their
knowledge of the environment coordinating work with outsiders, promoting
team achievements within the organization. In general, such external
activities are better predictors of team performance than internal group
processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer
vis-a-vis the managerial mettle of corporations are challenged. Current
research is seeking ways both to anticipate effective managerial procedures
and to understand relationships of financial liability and insurance
considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors are
apropos:
First System Dynamics. The field of systems dynamics has been found an
effective tool for new managerial thinking regarding both planning and
pressing immediate problems. An understanding of the role of feedback
loops, inventory levels, and rates of flow, enable users to simulate all sorts of
systematic problems — physical, economic, managerial, social, and
psychological. New programming techniques now make the system
dynamics principles more accessible to managers — including corporate
counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions
involving complexity and uncertainty. In the context of a law department, it
can be used to appraise the settlement value of litigation, aid in negotiation
settlement, and minimize the cost and risk involved in managing a portfolio of
cases. (Emphasis supplied)
 5
Third Modeling for Negotiation Management. Computer-based models can
be used directly by parties and mediators in all lands of negotiations. All
integrated set of such tools provide coherent and effective negotiation
support, including hands-on on instruction in these techniques. A simulation
case of an international joint venture may be used to illustrate the point.
[Be this as it may,] the organization and management of the legal function,
concern three pointed areas of consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that
comprise a major part of the general counsel's responsibilities. They differ
from those of remedial law. Preventive lawyering is concerned with
minimizing the risks of legal trouble and maximizing legal rights for such
legal entities at that time when transactional or similar facts are being
considered and made.
Managerial Jurisprudence. This is the framework within which are
undertaken those activities of the firm to which legal consequences attach.
It needs to be directly supportive of this nation's evolving economic and
organizational fabric as firms change to stay competitive in a global,
interdependent environment. The practice and theory of "law" is not
adequate today to facilitate the relationships needed in trying to make a
global economy work.
Organization and Functioning of the Corporate Counsel's Office. The
general counsel has emerged in the last decade as one of the most vibrant
subsets of the legal profession. The corporate counsel hear responsibility
for key aspects of the firm's strategic issues, including structuring its global
operations, managing improved relationships with an increasingly
diversified body of employees, managing expanded liability exposure,
creating new and varied interactions with public decision-makers, coping
internally with more complex make or by decisions.
This whole exercise drives home the thesis that knowing corporate law is
not enough to make one a good general corporate counsel nor to give him a
full sense of how the legal system shapes corporate activities. And even if
the corporate lawyer's aim is not the understand all of the law's effects on
corporate activities, he must, at the very least, also gain a working
knowledge of the management issues if only to be able to grasp not only the
basic legal "constitution' or makeup of the modem corporation. "Business
Star", "The Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more
than a passing knowledge of financial law affecting each aspect of their
work. Yet, many would admit to ignorance of vast tracts of the financial law
territory. What transpires next is a dilemma of professional security: Will the
lawyer admit ignorance and risk opprobrium?; or will he feign understanding
and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989,
p. 4).
Respondent Christian Monsod was nominated by President Corazon C.
Aquino to the position of Chairman of the COMELEC in a letter received by
the Secretariat of the Commission on Appointments on April 25, 1991.
Petitioner opposed the nomination because allegedly Monsod does not
possess the required qualification of having been engaged in the practice of
law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the
nomination of Monsod as Chairman of the COMELEC. On June 18, 1991,
he took his oath of office. On the same day, he assumed office as Chairman
of the COMELEC.
Challenging the validity of the confirmation by the Commission on
Appointments of Monsod's nomination, petitioner as a citizen and taxpayer,
filed the instant petition for certiorari and Prohibition praying that said
confirmation and the consequent appointment of Monsod as Chairman of the
Commission on Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the
bar examinations of 1960 with a grade of 86-55%. He has been a dues
paying member of the Integrated Bar of the Philippines since its inception in
1972-73. He has also been paying his professional license fees as lawyer for
more than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the bar,
Atty. Monsod worked in the law office of his father. During his stint in the
World Bank Group (1963-1970), Monsod worked as an operations officer for
about two years in Costa Rica and Panama, which involved getting
acquainted with the laws of member-countries negotiating loans and
coordinating legal, economic, and project work of the Bank. Upon returning to
the Philippines in 1970, he worked with the Meralco Group, served as chief
executive officer of an investment bank and subsequently of a business
conglomerate, and since 1986, has rendered services to various companies
as a legal and economic consultant or chief executive officer. As former
Secretary-General (1986) and National Chairman (1987) of NAMFREL.
Monsod's work involved being knowledgeable in election law. He appeared
for NAMFREL in its accreditation hearings before the Comelec. In the field of
advocacy, Monsod, in his personal capacity and as former Co-Chairman of
the Bishops Businessmen's Conference for Human Development, has
worked with the under privileged sectors, such as the farmer and urban poor
groups, in initiating, lobbying for and engaging in affirmative action for the
agrarian reform law and lately the urban land reform bill. Monsod also made
use of his legal knowledge as a member of the Davide Commission, a quast
judicial body, which conducted numerous hearings (1990) and as a member
of the Constitutional Commission (1986-1987), and Chairman of its
Committee on Accountability of Public Officers, for which he was cited by the
President of the Commission, Justice Cecilia Muñoz-Palma for "innumerable
amendments to reconcile government functions with individual freedoms and
public accountability and the party-list system for the House of
Representative. (pp. 128-129 Rollo) ( Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used
to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team, and
which is adequately constituted to meet the various contingencies that arise
during a negotiation. Besides top officials of the Borrower concerned, there
are the legal officer (such as the legal counsel), the finance manager, and an
operations officer (such as an official involved in negotiating the contracts)
who comprise the members of the team. (Guillermo V. Soliven, "Loan
Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2,
Central Bank of the Philippines, Manila, 1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays
down the law as far as the loan transaction is concerned. Thus, the meat of
any Loan Agreement can be compartmentalized into five (5) fundamental
parts: (1) business terms; (2) borrower's representation; (3) conditions of
closing; (4) covenants; and (5) events of default. (Ibid., p. 13).
In the same vein, lawyers play an important role in any debt restructuring
program. For aside from performing the tasks of legislative drafting and legal
advising, they score national development policies as key factors in
maintaining their countries' sovereignty. (Condensed from the work paper,
entitled "Wanted: Development Lawyers for Developing Nations," submitted
by L. Michael Hager, regional legal adviser of the United States Agency for
International Development, during the Session on Law for the Development
of Nations at the Abidjan World Conference in Ivory Coast, sponsored by the
World Peace Through Law Center on August 26-31, 1973). ( Emphasis
supplied)
 6
Loan concessions and compromises, perhaps even more so than purely
renegotiation policies, demand expertise in the law of contracts, in
legislation and agreement drafting and in renegotiation. Necessarily, a
sovereign lawyer may work with an international business specialist or an
economist in the formulation of a model loan agreement. Debt restructuring
contract agreements contain such a mixture of technical language that they
should be carefully drafted and signed only with the advise of competent
counsel in conjunction with the guidance of adequate technical support
personnel. (See International Law Aspects of the Philippine External Debts,
an unpublished dissertation, U.S.T. Graduate School of Law, 1987, p. 321).
( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract construction is the
set of terms and conditions which determines the contractual remedies for a
failure to perform one or more elements of the contract. A good agreement
must not only define the responsibilities of both parties, but must also state
the recourse open to either party when the other fails to discharge an
obligation. For a compleat debt restructuring represents a devotion to that
principle which in the ultimate analysis is sine qua non for foreign loan
agreements-an adherence to the rule of law in domestic and international
affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr.
once said: "They carry no banners, they beat no drums; but where they are,
men learn that bustle and bush are not the equal of quiet genius and serene
mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign
Investments," Integrated Bar of the Philippine Journal, Vol. 15, Nos. 3 and 4,
Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law".
particularly the modern concept of law practice, and taking into
consideration the liberal construction intended by the framers of the
Constitution, Atty. Monsod's past work experiences as a lawyer-economist,
a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of
contracts, and a lawyer-legislator of both the rich and the poor — verily
more than satisfy the constitutional requirement — that he has been
engaged in the practice of law for at least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143
SCRA 327, the Court said:
Appointment is an essentially discretionary power and must be performed
by the officer in which it is vested according to his best lights, the only
condition being that the appointee should possess the qualifications
required by law. If he does, then the appointment cannot be faulted on the
ground that there are others better qualified who should have been
preferred. This is a political question involving considerations of wisdom
which only the appointing authority can decide. (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service
Commission, 171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and all
the other legal requirements are satisfied, the Commission has no
alternative but to attest to the appointment in accordance with the Civil
Service Law. The Commission has no authority to revoke an appointment
on the ground that another person is more qualified for a particular position.
It also has no authority to direct the appointment of a substitute of its choice.
To do so would be an encroachment on the discretion vested upon the
appointing authority. An appointment is essentially within the discretionary
power of whomsoever it is vested, subject to the only condition that the
appointee should possess the qualifications required by law. ( Emphasis
supplied)
The appointing process in a regular appointment as in the case at bar,
consists of four (4) stages: (1) nomination; (2) confirmation by the
Commission on Appointments; (3) issuance of a commission (in the
Philippines, upon submission by the Commission on Appointments of its
certificate of confirmation, the President issues the permanent appointment;
and (4) acceptance e.g., oath-taking, posting of bond, etc. . . . (Lacson v.
Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p.
200)
The power of the Commission on Appointments to give its consent to the
nomination of Monsod as Chairman of the Commission on Elections is
mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which
provides:
The Chairman and the Commisioners shall be appointed by the President
with the consent of the Commission on Appointments for a term of seven
years without reappointment. Of those first appointed, three Members shall
hold office for seven years, two Members for five years, and the last
Members for three years, without reappointment. Appointment to any
vacancy shall be only for the unexpired term of the predecessor. In no case
shall any Member be appointed or designated in a temporary or acting
capacity.
Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his
definition of the practice of law is the traditional or stereotyped notion of law
practice, as distinguished from the modern concept of the practice of law,
which modern connotation is exactly what was intended by the eminent
framers of the 1987 Constitution. Moreover, Justice Padilla's definition would
require generally a habitual law practice, perhaps practised two or three
times a week and would outlaw say, law practice once or twice a year for ten
consecutive years. Clearly, this is far from the constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that
in my written opinion, I made use of a definition of law practice which really
means nothing because the definition says that law practice " . . . is what
people ordinarily mean by the practice of law." True I cited the definition but
only by way of sarcasm as evident from my statement that the definition of
law practice by "traditional areas of law practice is essentially tautologous" or
defining a phrase by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all
situations, most individuals, in making use of the law, or in advising others on
what the law means, are actually practicing law. In that sense, perhaps, but
we should not lose sight of the fact that Mr. Monsod is a lawyer, a member of
the Philippine Bar, who has been practising law for over ten years. This is
different from the acts of persons practising law, without first becoming
lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an
elected President of the Philippines, say, on the ground that he lacks one or
more qualifications. This matter, I greatly doubt. For one thing, how can an
action or petition be brought against the President? And even assuming that
he is indeed disqualified, how can the action be entertained since he is the
incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the public
hearings on Monsod's confirmation, implicitly determined that he possessed
the necessary qualifications as required by law. The judgment rendered by
the Commission in the exercise of such an acknowledged power is beyond
judicial interference except only upon a clear showing of a grave abuse of
discretion amounting to lack or excess of jurisdiction. (Art. VIII, Sec. 1
Constitution). Thus, only where such grave abuse of discretion is clearly
shown shall the Court interfere with the Commission's judgment. In the
instant case, there is no occasion for the exercise of the Court's corrective
 7
power, since no abuse, much less a grave abuse of discretion, that would
amount to lack or excess of jurisdiction and would warrant the issuance of
the writs prayed, for has been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the
President, may the Supreme Court reverse the Commission, and thus in
effect confirm the appointment? Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom the
Commission has confirmed? The answer is likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S.
Congress) decides to confirm a Presidential nominee, it would be incredible
that the U.S. Supreme Court would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth
life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of
Judea asked Delilah (who was Samson's beloved) for help in capturing
Samson. Delilah agreed on condition that —
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator
placed an iron rod burning white-hot two or three inches away from in front
of Samson's eyes. This blinded the man. Upon hearing of what had
happened to her beloved, Delilah was beside herself with anger, and fuming
with righteous fury, accused the procurator of reneging on his word. The
procurator calmly replied: "Did any blade touch his skin? Did any blood flow
from his veins?" The procurator was clearly relying on the letter, not the
spirit of the agreement.
In view of the foregoing, this petition is hereby DISMISSED.
SO ORDERED.
Zaldivar vs. Estenzo
1. Election law; Commission on Elections; Its functions and duties relative to
the conduct of elections and enforcement of election laws.-
Under the Constitution, the Commission on Elections has exclusive charge
of the enforcement and administration of all laws relative to the conduct of
elections and shall exercise all other functions which may be conferred
upon it by law. In the implementation of the above constitutional prerogative,
the Commission on Elections is vested under the Election Code with direct
and immediate supervision over the provincial, municipal, and city officials
designated by law to perform duties relative to the conduct of elections. It
could even suspend from the performance of said duties any of said officials
who shall fail to comply with its instructions, orders, decisions, or rulings and
appoint their temporary substitutes and, upon recommendation of the
Commission, the President of the Philippines may remove any or all such
officials who shall be found guilty of non-feasance, malfeasance, or
misfeasance in connection with the performance of their duties relative to the
conduct of elections.
2. Election law; The judiciary may not be a co-participant in the enforcement
of election laws; Reasons therefor.-
Why should not the judiciary be a co-participant in the enforcement of
election laws? The obvious answer is the literal language of the Constitution
which empowers the Commission on Elections to “have exclusive charge of
the enforcement and administration of all laws relative to the conduct of
elections. It is hostile to a democratic system to involve the judiciary in the
politics of the people.” And it is not less pernicious if such judicial intervention
in an essentially political contest be dressed up in the abstract phrases of the
law. It is easy to realize the chaos that would ensue if the Court of First
Instance of each and every province were to arrogate unto itself the power to
disregard, suspend, or contradict. any order of the Commission on Elections;
that constitutional body would be speedily reduced to impotence.
G.R. No. L-26065 May 3, 1968
GERONIMO B. ZALDIVAR, petitioner,
vs.
HON. NUMERIANO ESTENZO, Judge of the Court of First Instance of
Ormoc City, and SOTERO PEPITO,respondents.
Montalban-De Jesus and Associates for petitioner.
Francisco D. Abas for respondents.
FERNANDO, J.:
The specific question that confronts this Court in this petition
for certiorari with preliminary injunction, one that is novel and unique, is the
competence of a court of first instance to pass upon and entertain a special
civil action to prohibit municipal mayors, presumed to be partial to the
candidacy of a congressional candidate, from appointing special policemen,
and agents with the sole purpose, so it is alleged, to terrorize voters and thus
frustrate the basic objective of the Election Code, which is to assure the free
and honest expression of popular will. Respondent Judge, by no means free
from suspicion of sympathy for the other candidate, had no doubt about his
power to act in the premises. With unusual celerity and dispatch, he
granted ex-parte the preliminary injunction sought. This Court is of a different
mind.
Such an assumption of jurisdiction, considering that the Commission on
Elections is by the Constitution vested with "exclusive charge of the
enforcement and administration of all laws relative to the conduct of
elections ...,"1 is at war with the plain constitutional command, the
implementing statutory provisions, and the hospitable scope afforded such
grant of authority so clear and unmistakable in recent decisions. Moreover, if
respondent Judge were of a similar persuasion, the tradition of impartiality so
necessary and vital to maintain unimpaired respect for the judiciary would
have been upheld and the doubts, whether well-founded or not, as to a court
lending its prestige and its authority to favor a congressional aspirant would
not have arisen.
In the language of the petition, dated May 9, 1966, petitioner being Geronimo
Zaldivar and the principal respondent, Judge Numeriano Estenzo, of the
Court of First Instance of Ormoc City, it was filed "for the purpose of setting
aside (a) the decision dated April 28, 1966, rendered by the Honorable Judge
Numeriano Estenzo of the Court of First Instance of Leyte, 13th Judicial
District, Fifth Branch, Ormoc City, in Special Civil Case No. 753-0, entitled
'Luis Porcare and Sotero Pepito, petitioners, versus Feliciano Larrazabal, in
his official capacity as Mayor of Kananga, Leyte, and Geronimo Zaldivar, in
his official capacity as Mayor of Albuera, Leyte, respondents;' (b) the order
for the arrest of petitioner issued in said case on the same date that the
decision was promulgated; (c) the warrant of arrest issued pursuant to said
order; (d) the order issued in said case dated November 5, 1965, granting the
 8
issuance of a writ of preliminary injunction; and (e) the writ of preliminary assure that the right to vote on the part of each and every elector be
injunction so issued on the same date, on the ground that said decision, respected and safeguarded to the fullest extent.
orders, warrant of arrest and writ of preliminary injunction were issued by
the trial court without jurisdiction."2
Under the Constitution, the Commission on Elections has "exclusive charge
of the enforcement and administration of all laws relative to the conduct of
Petitioner was then the incumbent municipal mayor of Albuera, Leyte, elections and shall exercise all other functions which may be conferred upon
named respondent in the special civil case referred to, while the other it by law."9 In the implementation of the above constitutional prerogative, the
respondent, Sotero Pepito, was one of the petitioners in such case. The writ Commission on Elections is vested under the Election Code with "direct and
of preliminary injunction prayed for was granted by this Court in a resolution immediate supervision over the provincial, municipal, and city officials
of May 20, 1966, which gave due course to the petition. designated by law to perform duties relative to the conduct of elections."10 It
could even suspend "from the performance of said duties any of said officials
who shall fail to comply with its instructions, orders, decisions, or rulings and
While the answer of respondent Judge Estenzo, dated June 15, 1966,
appoint their temporary substitutes and, upon recommendation of the
contained his own version of the facts, there is no question that a decision
Commission, the President of the Philippines may remove any or all such
in favor of the petitioner, now respondent, Pepito, and against the
officials who shall be found guilty of non-feasance, malfeasance, or
respondent, now petitioner Zaldivar, in the above special civil action was
misfeasance in connection with the performance of their duties relative to the
rendered on April 28, 1966; 3 and ex-parte order for the issuance of a
conduct of elections."11
preliminary injunction and the writ itself were issued on the same day the
special civil action was filed;4 and the arrest of petitioner immediately
followed by a warrant of arrest were ordered by respondent Judge.5 In the special civil action for prohibition before respondent Judge, its
essentially political character is manifest, the main allegation being the
alleged utilization of the power of petitioner Zaldivar, as municipal mayor,
The decision assailed, as well as the challenged orders and actuations of
named respondent therein, to avail himself of the authority of his office to
respondent Judge, was the direct consequence of his assumption of
appoint special policemen or agents to terrorize voters so that they would
jurisdiction over the special civil action of prohibition with preliminary
support the congressional candidate of his choice. Both under the
injunction, filed in his court by now respondent Sotero Pepito, one of the
Constitution and the Revised Election Code, it is not so much the power, but
petitioners in that case, along with a certain Luis Porcare. As already
the duty of the Commission on Elections to exercise supervision over
indicated, had there been more hesitancy and doubt as to his competence
municipal officials precisely to enforce the Election Code. No other agency is
resulting in more circumspection and less eagerness to act on the matter,
better suited to preclude abuse of authority on the part of local officials, the
respondent Judge might have reached a contrary conclusion as to the
sanction being that it could recommend to the President their removal if
correctness of his assumption of jurisdiction. The wording of the petition for
found guilty of "non-feasance, malfeasance or misfeasance in connection
prohibition with preliminary injunction, considering the applicable law, ought
with the performance of their duties relative to the conduct of elections."12
to have warned and cautioned respondent Judge against a determination
that he could validly act on the premises.1ªvvphi1.nêt
Moreover, this Court, from the creation of the Commission on Elections, has
accorded full amplitude to the wide discretion vested in the Commission on
A recital of the contents of the petition will explain why. The petitioners, both
Elections in the performance of its constitutional functions. As early as 1941
of whom were municipal councilors and, according to their petition, "local
in Sumulong v. Commission on Elections,13 full recognition and awareness of
leaders and supporters of the candidacy for reelection of Congressman
the crucial role to be played by the Commission in the conduct of elections
Dominador M. Tan, ...," alleged that now petitioner Zaldivar, therein named
was evident, the language employed in the opinion of the then Justice Abad
as respondent, with the municipal mayor of another municipality, a certain
Santos being quite explicit. Thus: "The Commission on Elections is a
Feliciano Larrazabal, "acting in their official capacities as Municipal Mayors,
constitutional body. It is intended to play a distinct and important part in our
are known to be sympathetic to the candidacy of Rodolfo Rivilla, and with
scheme of government. In the discharge of its functions, it should not be
grave abuse of discretion have caused to appoint special policemen and
hampered with restrictions that would be fully warranted in the case of a less
agents to be paid from public funds and to be provided with uniforms and
responsible organization. The Commission may err, so may this court also. It
firearms for the sole purpose of utilizing said special policemen and agents
should be allowed considerable latitude in devising means and methods that
to terrorize and arrest electors sympathetic to Congressman Dominador M.
will insure the accomplishment of the great objective for which it was created
Tan during the elections of November 9, 1965, in the aforesaid
— free, orderly and honest elections. We may not agree fully with its choice
municipalities within the 4th District of Leyte;...."6 It was the contention of
of means, but unless these are clearly illegal or constitute gross abuse of
petitioners that respondents, as municipal mayors, acted "without and in
discretion, this court should not interfere. Politics is a practical matter, and
excess of their powers as executives of their respective jurisdictions, as no
political questions must be dealt with realistically — not from the standpoint
authority or sanction has been obtained from the Executive Secretary and
of pure theory. The Commission on Elections, because of its fact-finding
the Commission on Elections, and the exercise of such powers would be
facilities, its contacts with political strategists, and its knowledge derived from
detrimental to the interest of the electorate which they are bound to
actual experience in dealing with political controversies, is in a peculiarly
protect."7 From which it was their conclusion that such "consummation of
advantageous position to decide complex political questions."
the intended acts of respondents in their respective jurisdiction would
frustrate the will of the people to vote freely for the men of their choice
during the elections of November 9, 1965...."8 As noted earlier, respondent So it has continued up to the present. To speak of more recent cases, there
Judge, based on such a petition, decided that he had jurisdiction and saw to was stress laid in Lucas v. Cauton14 on its "constitutional duty of
it that an order for the issuance ex-parte of the preliminary injunction was administering and enforcing the laws relative to the conduct of elections with
handed down to be followed by the writ itself on November 5, 1965, the very a view to promoting clean and honest elections — the very purpose for which
same day the action was filed. the Commission on Elections was created by constitutional mandate." As
was emphatically observed by Justice Zaldivar, speaking for the Court: "It
would indeed be absurd to say that the Commission on Elections has a legal
It thus admits of no doubt that the grievance, if any, of respondent Pepito,
duty to perform and at the same time it is denied the necessary means to
as one of the petitioners in that special civil action before respondent Judge,
perform said duty." The same trend is evident in three decisions of this Court
arose from an alleged abuse of authority on the part of now petitioner,
in December, 1967: Espino v. Zaldivar,15 Demafiles v. Commission on
respondent therein, Zaldivar, as municipal mayor, in appointing "special
Elections,16 and Estrada vs. Navarro,17 and one in January, 1968, Ong v.
policemen and agents" so that they could be utilized solely for the purpose
Commission on Elections.18
of terrorizing and arresting voters sympathetic to one of the congressional
candidates and thus frustrating "the will of the people to vote freely for the
men of their choice" in the election to be held on November 9, 1965. The question may be asked: Why should not the judiciary be a co-participant
Nothing could be clearer then than that such an alleged abuse of power was in this particular instance of enforcing the Election Code as its authority was
inextricably linked with the poll to be held four days later. As noted in the invoked? The obvious answer is the literal language of the Constitution which
petition, if successful, such a scheme would be a denial of the right of the empowers the Commission on Elections to "have exclusive charge of the
electorate to give free expression to their convictions. It is indisputable, enforcement and administration of all laws relative to the conduct of the
therefore, that on its face, the petition sought the avoidance of acts that elections." Moreover, as was so aptly observed by the then Justice
would be violative of the Election Code which is designed primarily to Frankfurter, although the situation confronting the United States Supreme
Court was of a different character: "Nothing is clearer than that this
 9
controversy concerns matters that bring courts into immediate and active Caballero vs COMELEC
relations with party contests. From the determination of such issues this
Court has traditionally held aloof. It is hostile to a democratic system to
involve the judiciary in the politics of the people. And it is not less pernicious
if such judicial intervention in an essentially political contest be dressed up Election Law; COMELEC Rules of Procedure; The Commission on
in the abstract phrases of the law."19 Then, too, reference by analogy may Elections (COMELEC) may exercise its power to suspend its own rules as
be made to the principle that sustains Albano v. Arranz. For even without provided under Section 4, Rule 1 of their Rules of Procedure.-
the express constitutional prescription that only this Court may review the
—While private respondent failed to comply with the above mentioned
decisions, orders and rulings of the Commission on Elections, it is easy to
requirements, the settled rule, however, is that the COMELEC Rules of
understand why no interference whatsoever with the performance of the
Procedure are subject to liberal construction. Moreover, the COMELEC may
Commission on Elections of its functions should be allowed unless
exercise its power to suspend its own rules as provided under Section 4,
emanating from this Court. The observation of Acting Chief Justice J.B.L.
Rule 1 of their Rules of Procedure. Sec. 4. Suspension of the Rules.—In the
Reyes in Albano v. Arranz,20 while not precisely in point, indicates the
interest of justice and in order to obtain speedy disposition of all matters
proper approach. Thus: "It is easy to realize the chaos that would ensue if
pending before the Commission, these rules or any portion thereof may be
the Court of First Instance of each and every province were to arrogate unto
suspended by the Commission. Under this authority, the Commission is
itself the power to disregard, suspend, or contradict any order of the
similarly enabled to cope with all situations without concerning itself about
Commission on Elections; that constitutional body would be speedily
procedural niceties that do not square with the need to do justice, in any case
reduced to impotence."
without further loss of time, provided that the right of the parties to a full day
in court is not substantially impaired.
This conclusion finds support from a consideration of weight and influence.
What happened in this case could be repeated elsewhere. It is not
improbable that courts of first instance would be resorted to by leaders of
candidates or political factions entertaining the belief whether rightly or
wrongly that local officials would employ all the power at their command to
assure the victory of their candidates. Even if greater care and G.R. No. 209835, September 22, 2015
circumspection, than did exist in this case, would be employed by judges
thus appealed to, it is not unlikely that the shadow of suspicion as to alleged
partisanship would fall on their actuations, whichever way the matter before ROGELIO BATIN CABALLERO, Petitioner, v. COMMISSION ON
them is decided. It is imperative that the faith in the impartiality of the ELECTIONS AND JONATHAN ENRIQUE V. NANUD, JR., Respondents.
judiciary be preserved unimpaired. Whenever, therefore, the fear may be
plausibly entertained that an assumption of jurisdiction would lead to a
lessening of the undiminished trust that should be reposed in the courts in
the absence of authority discernible from the wording of applicable statutory DECISION
provisions and the trend of judicial decisions, even if no constitutional
mandate as that present in this case could be relied upon, there should be
no hesitancy in declining to act.
PERALTA, J.:

One last point. The norm expected of a judge, expressed in language both
lucid and forceful by Justice Dizon, bears restoration: "It has been said, in
fact, that due process of law requires a hearing before an impartial and
disinterested tribunal, and that every litigant is entitled to nothing less than
the cold neutrality of an impartial judge.... Moreover, second only to the duty
of rendering a just decision, is the duty of doing it in a manner that will not
arouse any suspicion as to its fairness and the integrity of the Judge."21 It is
difficult enough to attain the ideal of a presiding judge being "wholly free,
disinterested, impartial and independent," as was noted in the Gutierrez
decision. It becomes doubly difficult for such qualities to be in evidence
whenever the matter before him is so enmeshed and so intertwined with
partisan considerations that even if he could justly lay claim to such
attributes, he still would be susceptible to the suspicion, by whichever group
may feel that its just claim is rejected, that he acted not in accordance with
the cold dictates of reason, but with the promptings and urgings of his
sympathy and predilections in whatever direction they may lie. To repeat,
the conclusion reached as to the lack of jurisdiction of the courts of first
instance in litigations of this character would go far in fortifying and
bolstering the belief in the reality of a truly independent judiciary, free from
partisanship and aloof from politics.
WHEREFORE, the writ for certiorari prayed for is granted; the decision
rendered by respondent Judge on April 28, 1966, in Special Civil Case No.
753-0 in his sala, the order for the arrest of petitioner, the warrant of arrest,
the order dated November 5, 1966, granting the issuance of a writ of
preliminary injunction, and the writ of preliminary injunction so issued on the
same date set aside, and the preliminary injunction issued by this Court
dated May 26, 1966 made permanent. No special pronouncement as to
costs.
Before us is a petition for certiorari with prayer for issuance of a temporary
restraining order seeking to set aside the Resolution1 dated November 6,
2013 of the Commission on Elections (COMELEC) En Banc which affirmed in
toto the Resolution2 dated May 3, 2013 of the COMELEC First Division
canceling the Certificate of Candidacy (COC) of petitioner Rogelio Batin
Caballero.
Petitioner3 and private respondent Jonathan Enrique V. Nanud, Jr.4 were
both candidates for the mayoralty position of the Municipality of Uyugan,
Province of Batanes in the May 13, 2013 elections. Private respondent filed a
Petition5 to deny due course to or cancellation of petitioner's certificate of
candidacy alleging that the latter made a false representation when he
declared in his COC that he was eligible to run for Mayor of Uyugan, Batanes
despite being a Canadian citizen and a non-resident thereof.
During the December 10, 2012 conference, petitioner, through counsel,
manifested that he was not properly served with a copy of the petition and the
petition was served by registered mail not in his address in Barangay
Imnajbu, Uyugan, Batanes. He, however, received a copy of the petition
during the conference. Petitioner did not file an Answer but filed a
Memorandum controverting private respondent's substantial allegations in
his petition.

Petitioner argued that prior to the filing of his COC on October 3, 2012, he
Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro took an Oath of Allegiance to the Republic of the Philippines before the
and Angeles, JJ., Concur. Philippine Consul General in Toronto, Canada on September 13, 2012 and
became a dual Filipino and Canadian citizen pursuant to Republic Act (RA)
1äwphï1.ñët Concepcion, C.J., took no part. No. 9225, otherwise known as the Citizenship Retention and Reacquisition
Act of 2003. Thereafter, he renounced his Canadian citizenship and
executed an Affidavit of Renunciation before a Notary Public in Batanes on
Footnotes October 1, 2012 to conform with Section 5(2) of RA No. 9225.6 He claimed
that he did not lose his domicile of origin in Uyugan, Batanes despite
 10
becoming a Canadian citizen as he merely left Uyugan temporarily to
pursue a brighter future for him and his family; and that he went back to
Uyugan during his vacation while working in Nigeria, California, and finally
in Canada.
On May 3, 2013, the COMELEC First Division issued a Resolution finding
that petitioner made a material misrepresentation in his COC when he
declared that he is a resident of Barangay Imnajbu, Uyugan, Batanes within
one year prior to the election. The decretal portion of the resolution
reads:cralawlawlibrary
WHEREFORE, premises considered, this Commission RESOLVED, as it
hereby RESOLVES to GRANT the instant Petition. The Certificate of
Candidacy of respondent Caballero is hereby
CANCELLED.7chanrobleslaw
The COMELEC First Division did not discuss the procedural deficiency
raised by petitioner as he was already given a copy of the petition and also
in consonance with the Commission's constitutional duty of determining the
qualifications of petitioner to run for elective office. It found that while
petitioner complied with the requirements of RA No. 9225 since he had
taken his Oath of Allegiance to the Philippines and had validly renounced
his Canadian citizenship, he failed to comply with the other requirements
provided under RA No. 9225 for those seeking elective office, i.e., persons
who renounced their foreign citizenship must still comply with the one year
residency requirement provided for under Section 39 of the Local
Government Code. Petitioner's naturalization as a Canadian citizen resulted
in the abandonment of his domicile of origin in Uyugan, Batanes; thus,
having abandoned his domicile of origin, it is incumbent upon him to prove
that he was able to reestablish his domicile in Uyugan for him to be eligible
to run for elective office in said locality which he failed to do.
Elections were subsequently held on May 13, 2013 and the election returns
showed that petitioner won over private respondent.8 Private respondent
filed an Urgent Ex-parte Motion to Defer Proclamation.9
On May 14, 2013, petitioner was proclaimed Mayor of Uyugan, Batanes.
On May 16, 2013, petitioner filed a Motion for Reconsideration with the
COMELEC En Banc assailing the May 3, 2013 Resolution issued by the
COMELEC's First Division canceling his COC.
On May 17, 2013, private respondent filed a Petition to Annul
Proclamation.10
On November 6, 2013, the COMELEC En Banc issued its assailed
Resolution denying petitioner's motion for reconsideration.
Petitioner filed with us the instant petition for certiorari with prayer for the
issuance of a temporary restraining order.
In the meantime, private respondent filed a Motion for Execution11 of the
May 3, 2013 Resolution of the COMELEC First Division as affirmed by the
En Banc and prayed for the cancellation of petitioner's COC, the
appropriate correction of the certificate of canvas to reflect that all votes in
favor of petitioner are stray votes, declaration of nullity of petitioner's
proclamation and proclamation of private respondent as the duly-elected
Mayor of Uyugan, Batanes in the May 13, 2013 elections.
On December 12, 2013, COMELEC Chairman Sixto S. Brillantes, Jr. issued
a Writ of Execution.12 Private respondent took his Oath of Office13 on
December 20, 2013.
In the instant petition for certiorari, petitioner raises the following assignment
of errors, to wit:cralawlawlibrary
THE COMELEC EN BANC GRAVELY ERRED IN DISREGARDING THE
CLEAR IMPORT OF PROCEDURAL RULES PROVIDED FOR UNDER
COMELEC RESOLUTION NO. 9523 PROMULGATED ON 25 SEPTEMBER
2012.
THE COMELEC EN BANC GRAVELY ERRED IN FINDING THAT
PETITIONER ABANDONED HIS PHILIPPINE DOMICILE WHEN HE
WORKED IN SEVERAL FOREIGN COUNTRIES FOR "GREENER
PASTURE."
EVEN ASSUMING THAT PETITIONER HAS ABANDONED HIS
PHILIPPINE DOMICILE WHEN HE BECAME A CANADIAN CITIZEN, HIS
REACQUISITION OF HIS FILIPINO CITIZENSHIP, TAKING OATH OF
ALLEGIANCE TO THE PHILIPPINE GOVERNMENT NINE (9) MONTHS
PRIOR TO HIS ELECTION ON 13 MAY 2013, IS A SUBSTANTIAL
COMPLIANCE WITH THE LAW ON RESIDENCY.14chanrobleslaw
Petitioner contends that when private respondent filed a petition to deny due
course or to cancel his COC with the Office of the Municipal Election Officer
of Uyugan, Batanes, a copy thereof was not personally served on him; that
private respondent later sent a copy of the petition to him by registered mail
without an attached affidavit stating the reason on why registered mail as a
mode of service was resorted to. Petitioner argues that private respondent
violated Section 4, paragraphs (1)15 and (4),16 Rule 23 of the COMELEC
Rules of Procedure, as amended by COMELEC Resolution No. 9523, thus,
his petition to deny due course or cancel petitioner's certificate of candidacy
should have been denied outright.
We are not convinced.
While private respondent failed to comply with the above-mentioned
requirements, the settled rule, however, is that the COMELEC Rules of
Procedure are subject to liberal construction. Moreover, the COMELEC may
exercise its power to suspend its own rules as provided under Section 4,
Rule 1 of their Rules of Procedure.cralawlawlibrary
Sec. 4. Suspension of the Rules. - In the interest of justice and in order to
obtain speedy disposition of all matters pending before the Commission,
these rules or any portion thereof may be suspended by the
Commission.chanrobleslaw
Under this authority, the Commission is similarly enabled to cope with all
situations without concerning itself about procedural niceties that do not
square with the need to do justice, in any case without further loss of time,
provided that the right of the parties to a full day in court is not substantially
impaired.17
In Hayudini v. COMELEC,18 we sustained the COMELEC's liberal treatment
of respondent's petition to deny due course or cancel petitioner's COC
despite its failure to comply with Sections 2 and 4 of Rule 23 of the
COMELEC Rules of Procedure, as amended by Resolution No. 9523, i.e.,
pertaining to the period to file petition and to provide sufficient explanation as
 11
to why his petition was not served personally on petitioner, respectively, and xxxx
held that:cralawlawlibrary

When a case is impressed with public interest, a relaxation of the application

As a general rule, statutes providing for election contests are to be liberally of the rules is in order, x x x.
construed in order that the will of the people in the choice of public officers
may not be defeated by mere technical objections. Moreover, it is neither
fair nor just to keep in office, for an indefinite period, one whose right to it is
uncertain and under suspicion. It is imperative that his claim be immediately Unquestionably, the instant case is impressed with public interest which
cleared, not only for the benefit of the winner but for the sake of public warrants the relaxation of the application of the [R]ules of [P]rocedure,
interest, which can only be achieved by brushing aside technicalities of consistent with the ruling of the Supreme Court in several
procedure that protract and delay the trial of an ordinary action. This cases.20chanrobleslaw
principle was reiterated in the cases of Tolentino v. Commission on
Elections and De Castro v. Commission on Elections, where the Court held
that "in exercising its powers and jurisdiction, as defined by its mandate to
Petitioner next claims that he did not abandon his Philippine domicile. He
protect the integrity of elections, the COMELEC must not be straitjacketed
argues that he was born and baptized in Uyugan, Batanes; studied and had
by procedural rules in resolving election disputes."
worked therein for a couple of years, and had paid his community tax
certificate; and, that he was a registered voter and had exercised his right of
suffrage and even built his house therein. He also contends that he usually
Settled is the rule that the COMELEC Rules of Procedure are subject to comes back to Uyugan, Batanes during his vacations from work abroad, thus,
liberal construction. The COMELEC has the power to liberally interpret or his domicile had not been lost. Petitioner avers that the requirement of the
even suspend its rules of procedure in the interest of justice, including law in fixing the residence qualification of a candidate running for public office
obtaining a speedy disposition of all matters pending before it. This liberality is not strictly on the period of residence in the place where he seeks to be
is for the purpose of promoting the effective and efficient implementation of elected but on the acquaintance by the candidate on his constituents' vital
its objectives - ensuring the holding of free, orderly, honest, peaceful, and needs for their common welfare; and that his nine months of actual stay in
credible elections, as well as achieving just, expeditious, and inexpensive Uyugan, Batanes prior to his election is a substantial compliance with the law.
determination and disposition of every action and proceeding brought Petitioner insists that the COMELEC gravely abused its discretion in
before the COMELEC. Unlike an ordinary civil action, an election contest is canceling his COC.
imbued with public interest. It involves not only the adjudication of private
and pecuniary interests of rival candidates, but also the paramount need of
dispelling the uncertainty which beclouds the real choice of the electorate.
We are not persuaded.
And the tribunal has the corresponding duty to ascertain, by all means
within its command, whom the people truly chose as their rightful
leader.19chanrobleslaw
RA No. 9225, which is known as the Citizenship Retention and Reacquisition
Act of 2003, declares that natural-born citizens of the Philippines, who have
lost their Philippine citizenship by reason of their naturalization as citizens of
Here, we find that the issue raised, i.e., whether petitioner had been a
a foreign country, can re-acquire or retain his Philippine citizenship under the
resident of Uyugan, Batanes at least one (1) year before the elections held
conditions of the law.21 The law does not provide for residency requirement
on May 13, 2013 as he represented in his COC, pertains to his qualification
for the reacquisition or retention of Philippine citizenship; nor does it mention
and eligibility to run for public office, therefore imbued with public interest,
any effect of such reacquisition or retention of Philippine citizenship on the
which justified the COMELEC's suspension of its own rules. We adopt the
current residence of the concerned natural-born Filipino.22
COMELEC's s ratiocination in accepting the petition, to wit:cralawlawlibrary

RA No. 9225 treats citizenship independently of residence.23 This is only

This Commission recognizes the failure of petitioner to comply strictly with
logical and consistent with the general intent of the law to allow for dual
the procedure for filing a petition to deny due course to or cancel certificate
citizenship. Since a natural-born Filipino may hold, at the same time, both
of candidacy set forth in Section 4, Rule 23 of the COMELEC Rules of
Philippine and foreign citizenships, he may establish residence either in the
Procedure as amended by COMELEC Resolution No. 9523, which requires
Philippines or in the foreign country of which he is also a citizen.24 However,
service of a copy of the petition to respondent prior to its filing. But then, we
when a natural-born Filipino with dual citizenship seeks for an elective public
should also consider the efforts exerted by petitioner in serving a copy of his
office, residency in the Philippines becomes material. Section 5(2) of FLA No.
petition to respondent after being made aware that such service is
9225 provides:cralawlawlibrary
necessary. We should also take note of the impossibility for petitioner to
personally serve a copy of the petition to respondent since he was in
Canada at the time of its filing as shown in respondent's travel records.
SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or
reacquire Philippine citizenship under this Act shall enjoy full civil and political
rights and be subject to all attendant liabilities and responsibilities under
The very purpose of prior service of the petition to respondent is to afford
existing laws of the Philippines and the following conditions:
the latter an opportunity to answer the allegations contained in the petition
even prior to the service of summons by the Commission to him. In this xxxx
case, respondent was given a copy of the petition during the conference
held on 10 December 2012 and was ultimately accorded the occasion to
rebut all the allegations against him. He even filed a Memorandum
containing his defenses to petitioner's allegations. For all intents and (2) Those seeking elective public office in the Philippines shall meet the
purposes, therefore, respondent was never deprived of due process which qualifications for holding such public office as required by the Constitution
is the very essence of this Commission's Rules of Procedure. and existing laws and, at the time of the filing of the certificate of candidacy,
make a personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath.

Even the Supreme Court acknowledges the need for procedural rules to chanrobleslaw
bow to substantive considerations "through a liberal construction aimed at
promoting their objective of securing a just, speedy and inexpensive
disposition of every action and proceeding, x x x
 12
Republic Act No. 7160, which is known as the Local Government Code of
1991, provides, among others, for the qualifications of an elective local
official. Section 39 thereof states:cralawlawlibrary
SEC. 39. Qualifications. - (a) An elective local official must be a citizen of
the Philippines; a registered voter in the barangay, municipality, city or
province or, in the case of a member of the sangguniang panlalawigan,
sangguniang panlungsod, or sanggunian bayan, the district where he
intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write
Filipino or any other local language or dialect.chanrobleslaw
Clearly, the Local Government Code requires that the candidate must be a
resident of the place where he seeks to be elected at least one year
immediately preceding the election day. Respondent filed the petition for
cancellation of petitioner's COC on the ground that the latter made material
misrepresentation when he declared therein that he is a resident of Uyugan,
Batanes for at least one year immediately preceeding the day of elections.
The term "residence" is to be understood not in its common acceptation as
referring to "dwelling" or "habitation," but rather to "domicile" or legal
residence,25 that is, "the place where a party actually or constructively has
his permanent home, where he, no matter where he may be found at any
given time, eventually intends to return and remain (animus manendi)."26 A
domicile of origin is acquired by every person at birth. It is usually the place
where the child's parents reside and continues until the same is abandoned
by acquisition of new domicile (domicile of choice). It consists not only in the
intention to reside in a fixed place but also personal presence in that place,
coupled with conduct indicative of such intention.27
Petitioner was a natural born Filipino who was born and raised in Uyugan,
Batanes. Thus, it could be said that he had his domicile of origin in Uyugan,
Batanes. However, he later worked in Canada and became a Canadian
citizen. In Coquilla v. COMELEC28 we ruled that naturalization in a foreign
country may result in an abandonment of domicile in the Philippines. This
holds true in petitioner's case as permanent resident status in Canada is
required for the acquisition of Canadian citizenship.29 Hence, petitioner had
effectively abandoned his domicile in the Philippines and transferred his
domicile of choice in Canada. His frequent visits to Uyugan, Batanes during
his vacation from work in Canada cannot be considered as waiver of such
abandonment.
The next question is what is the effect of petitioner's retention of his
Philippine citizenship under RA No. 9225 on his residence or domicile?
In Japzon v. COMELEC,30 wherein respondent Ty reacquired his
Philippine citizenship under RA No. 9225 and run for Mayor of General
Macarthur, Eastern Samar and whose residency in the said place was put
in issue, we had the occasion to state, thus:cralawlawlibrary
[Petitioner's] reacquisition of his Philippine citizenship under Republic Act
No. 9225 had no automatic impact or effect on his residence/domicile. He
could still retain his domicile in the USA, and he did not necessarily regain
his domicile in the Municipality of General Macarthur, Eastern Samar,
Philippines. Ty merely had the option to again establish his domicile in the
Municipality of General Macarthur, Eastern Samar, Philippines, said place
becoming his new domicile of choice. The length of his residence therein
shall be determined from the time he made it his domicile of choice, and it
shall not retroact to the time of his birth.31chanrobleslaw
Hence, petitioner's retention of his Philippine citizenship under RA No. 9225
did not automatically make him regain his residence in Uyugan, Batanes.
He must still prove that after becoming a Philippine citizen on September 13,
2012, he had reestablished Uyugan, Batanes as his new domicile of choice
which is reckoned from the time he made it as such.
The COMELEC found that petitioner failed to present competent evidence to
prove that he was able to reestablish his residence in Uyugan within a period
of one year immediately preceding the May 13, 2013 elections. It found that it
was only after reacquiring his Filipino citizenship by virtue of RA No. 9225 on
September 13, 2012 that petitioner can rightfully claim that he re-established
his domicile in Uyugan, Batanes, if such was accompanied by physical
presence thereat, coupled with an actual intent to reestablish his domicile
there. However, the period from September 13, 2012 to May 12, 2013 was
even less than the one year residency required by law.
Doctrinally entrenched is the rule that in a petition for certiorari, findings of
fact of administrative bodies, such as respondent COMELEC in the instant
case, are final unless grave abuse of discretion has marred such factual
determinations/~ Clearly, where there is no proof of grave abuse of discretion,
arbitrariness, fraud or error of law in the questioned Resolutions, we may not
review the factual findings of COMELEC, nor substitute its own findings on
the sufficiency of evidence.33
Records indeed showed that petitioner failed to prove that he had been a
resident of Uyugan, Batanes for at least one year immediately preceding the
day of elections as required under Section 39 of the Local Government Code.
Petitioner's argument that his nine (9) months of actual stay in Uyugan,
Batanes, prior to the May 13, 2013 local elections is a substantial compliance
with the law, is not persuasive. In Aquino v. Commission on Elections,34 we
held:cralawlawlibrary
x x x A democratic government is necessarily a government of laws. In a
republican government those laws are themselves ordained by the people.
Through their representatives, they dictate the qualifications necessary for
service in government positions. And as petitioner clearly lacks one of the
essential qualifications for running for membership in the House of
Representatives, not even the will of a majority or plurality of the voters of the
Second District of Makati City would substitute for a requirement mandated
by the fundamental law itself.35chanrobleslaw
Petitioner had made a material misrepresentation by stating in his COC that
he is a resident of Uyugan, Batanes for at least one (1) year immediately
proceeding the day of the election, thus, a ground for a petition under Section
78 of the Omnibus Election Code. Section 74, in relation to Section 78, of the
OEC governs the cancellation of, and grant or denial of due course to COCs,
to wit:cralawlawlibrary
SEC. 74. Contents of certificate of candidacy. - The certificate of candidacy
shall state that the person filing it is announcing his candidacy for the office
stated therein and that he is eligible for said office; if for Member of the
Batasang Pambansa, the province, including its component cities, highly
urbanized city or district or sector which he seeks to represent; the political
party to which he belongs; civil status; his date of birth; residence; his post
office address for all election purposes; his profession or occupation; that he
will support and defend the Constitution of the Philippines and will maintain
true faith and allegiance thereto; that he will obey the laws, legal orders, and
decrees promulgated by the duly constituted authorities; that he is not a
permanent resident or immigrant to a foreign country; that the obligation
imposed by his oath is assumed voluntarily, without mental reservation or
purpose of evasion; and that the facts stated in the certificate of candidacy
are true to the best of his knowledge.
xxxx
 13
SEC. 78. Petition to deny due course to or cancel a certificate of candidacy.
- A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74
hereof is false. The petition may be filed at any time not later than
twenty-five days from the time of the filing of the certificate of candidacy and
shall be decided, after due notice and hearing, not later than fifteen days
before the election.chanrobleslaw
We have held that in order to justify the cancellation of COC under Section
78, it is essential that the false representation mentioned therein pertains to
a material matter for the sanction imposed by this provision would affect the
substantive rights of a candidate - the right to run for the elective post for
which he filed the certificate of candidacy.36 We concluded that material
representation contemplated by Section 78 refers to qualifications for
elective office, such as the requisite residency, age, citizenship or any other
legal qualification necessary to run for a local elective office as provided for
in the Local Government Code.37 Furthermore, aside from the requirement
of materiality, the misrepresentation must consist of a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a candidate
ineligible.38 We, therefore, find no grave abuse of discretion committed by
the COMELEC in canceling petitioner's COC for material misrepresentation.
WHEREFORE, the petition for certiorari is DISMISSED. The Resolution
dated May 3, 2013 of the COMELEC First Division and the Resolution
dated November 6, 2013 of the COMELEC En Banc and are hereby
AFFIRMED.
SO ORDERED.
G.R. No. 159139 January 13, 2004
INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES,
MA. CORAZON M. AKOL, MIGUEL UY, EDUARDO H. LOPEZ,
AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY
SALCEDO, and MANUEL ALCUAZ JR., petitioners,
vs.
COMMISSION ON ELECTIONS; COMELEC CHAIRMAN BENJAMIN
ABALOS SR.; COMELEC BIDDING and AWARD COMMITTEE
CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE
GUZMAN, JOSE F. BALBUENA, LAMBERTO P. LLAMAS, and
BARTOLOME SINOCRUZ JR.; MEGA PACIFIC eSOLUTIONS, INC.; and
MEGA PACIFIC CONSORTIUM, respondents.
PANGANIBAN, J.:
There is grave abuse of discretion (1) when an act is done contrary to the
Constitution, the law or jurisprudence;1 or (2) when it is executed
whimsically, capriciously or arbitrarily out of malice, ill will or personal
bias.2 In the present case, the Commission on Elections approved the
assailed Resolution and awarded the subject Contract not only in clear
violation of law and jurisprudence, but also in reckless disregard of its own
bidding rules and procedure. For the automation of the counting and
canvassing of the ballots in the 2004 elections, Comelec awarded the
Contract to "Mega Pacific Consortium" an entity that had not participated in
the bidding. Despite this grant, the poll body signed the actual automation
Contract with "Mega Pacific eSolutions, Inc.," a company that joined the
bidding but had not met the eligibility requirements.
Comelec awarded this billion-peso undertaking with inexplicable haste,
without adequately checking and observing mandatory financial, technical
and legal requirements. It also accepted the proferred computer hardware
and software even if, at the time of the award, they had undeniably failed to
pass eight critical requirements designed to safeguard the integrity of
elections, especially the following three items:
· They failed to achieve the accuracy rating criteria of 99.9995 percent
set-up by the Comelec itself
· They were not able to detect previously downloaded results at various
canvassing or consolidation levels and to prevent these from being inputted
again
· They were unable to print the statutorily required audit trails of the
count/canvass at different levels without any loss of data
Because of the foregoing violations of law and the glaring grave abuse of
discretion committed by Comelec, the Court has no choice but to exercise its
solemn "constitutional duty"3 to void the assailed Resolution and the subject
Contract. The illegal, imprudent and hasty actions of the Commission have
not only desecrated legal and jurisprudential norms, but have also cast
serious doubts upon the poll body’s ability and capacity to conduct
automated elections. Truly, the pith and soul of democracy -- credible, orderly,
and peaceful elections -- has been put in jeopardy by the illegal and gravely
abusive acts of Comelec.
The Case
Before us is a Petition4 under Rule 65 of the Rules of Court, seeking (1) to
declare null and void Resolution No. 6074 of the Commission on Elections
(Comelec), which awarded "Phase II of the Modernization Project of the
Commission to Mega Pacific Consortium (MPC);" (2) to enjoin the
implementation of any further contract that may have been entered into by
Comelec "either with Mega Pacific Consortium and/or Mega Pacific
eSolutions, Inc. (MPEI);" and (3) to compel Comelec to conduct a re-bidding
of the project.
The Facts
The following facts are not disputed. They were culled from official
documents, the parties’ pleadings, as well as from admissions during the
Oral Argument on October 7, 2003.
On June 7, 1995, Congress passed Republic Act 8046,5 which authorized
Comelec to conduct a nationwide demonstration of a computerized election
system and allowed the poll body to pilot-test the system in the March 1996
elections in the Autonomous Region in Muslim Mindanao (ARMM).
On December 22, 1997, Congress enacted Republic Act 84366 authorizing
Comelec to use an automated election system (AES) for the process of
voting, counting votes and canvassing/consolidating the results of the
national and local elections. It also mandated the poll body to acquire
automated counting machines (ACMs), computer equipment, devices and
materials; and to adopt new electoral forms and printing materials.
Initially intending to implement the automation during the May 11, 1998
presidential elections, Comelec -- in its Resolution No. 2985 dated February
9, 19987 -- eventually decided against full national implementation and
limited the automation to the Autonomous Region in Muslim Mindanao
(ARMM). However, due to the failure of the machines to read correctly some
automated ballots in one town, the poll body later ordered their manual count
for the entire Province of Sulu.8
In the May 2001 elections, the counting and canvassing of votes for both
national and local positions were also done manually, as no additional ACMs
had been acquired for that electoral exercise allegedly because of time
constraints.
On October 29, 2002, Comelec adopted in its Resolution 02-0170 a
modernization program for the 2004 elections. It resolved to conduct biddings
for the three (3) phases of its Automated Election System; namely, Phase I -
Voter Registration and Validation System; Phase II - Automated Counting
and Canvassing System; and Phase III - Electronic Transmission.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive
Order No. 172, which allocated the sum of P2.5 billion to fund the AES for the
May 10, 2004 elections. Upon the request of Comelec, she authorized the
release of an additional P500 million.
 14
On January 28, 2003, the Commission issued an "Invitation to Apply for
Eligibility and to Bid," which we quote as follows:
"INVITATION TO APPLY FOR ELIGIBILITY AND TO BID
"1.) Open to Filipino and foreign corporation duly registered and licensed to
do business and is actually doing business in the Philippines, subject to Sec.
43 of RA 9184 (An Act providing In the Modernization Standardization and
Regulation of the Procurement Activities of the Government and for other
purposes etc.)

The Commission on Elections (COMELEC), pursuant to the mandate of

2.) Track Record:
Republic Act Nos. 8189 and 8436, invites interested offerors, vendors,
suppliers or lessors to apply for eligibility and to bid for the procurement by
purchase, lease, lease with option to purchase, or otherwise, supplies, a) For counting machines – should have been used in at least one (1)
equipment, materials and services needed for a comprehensive Automated political exercise with no less than Twenty Million Voters;
Election System, consisting of three (3) phases: (a) registration/verification
of voters, (b) automated counting and consolidation of votes, and (c)
b) For verification of voters – the reference site of an existing data base
electronic transmission of election results, with an approved budget of TWO
installation using Automated Fingerprint Identification System (AFIS) with at
BILLION FIVE HUNDRED MILLION (Php2,500,000,000) Pesos.
least Twenty Million.

Only bids from the following entities shall be entertained:

3.) Ten percent (10%) equity requirement shall be based on the total project
cost; and
a. Duly licensed Filipino citizens/proprietorships;
4.) Performance bond shall be twenty percent (20%) of the bid offer.
b. Partnerships duly organized under the laws of the Philippines and of
which at least sixty percent (60%) of the interest belongs to citizens of the
RESOLVED moreover, that:
Philippines;

1) A. Due to the decision that the eligibility requirements and the rest of the
c. Corporations duly organized under the laws of the Philippines, and of
Bid documents shall be released at the same time, and the memorandum of
which at least sixty percent (60%) of the outstanding capital stock belongs
Comm. Resurreccion Z. Borra dated February 7, 2003, the documents to be
to citizens of the Philippines;
released on Friday, February 14, 2003 at 2:00 o’clock p.m. shall be the
eligibility criteria, Terms of Reference (TOR) and other pertinent documents;
d. Manufacturers, suppliers and/or distributors forming themselves into a
joint venture, i.e., a group of two (2) or more manufacturers, suppliers
B. Pre-Bid conference shall be on February 18, 2003; and
and/or distributors that intend to be jointly and severally responsible or liable
for a particular contract, provided that Filipino ownership thereof shall be at
least sixty percent (60%); and C. Deadline for the submission and receipt of the Bids shall be on March 5,
2003.
e. Cooperatives duly registered with the Cooperatives Development
Authority. 2) The aforementioned documents will be available at the following offices:

Bid documents for the three (3) phases may be obtained starting 10 a) Voters Validation: Office of Comm. Javier
February 2003, during office hours from the Bids and Awards Committee
(BAC) Secretariat/Office of Commissioner Resurreccion Z. Borra, 7th Floor,
b) Automated Counting Machines: Office of Comm. Borra
Palacio del Governador, Intramuros, Manila, upon payment at the Cash
Division, Commission on Elections, in cash or cashier’s check, payable to
the Commission on Elections, of a non-refundable amount of FIFTEEN c) Electronic Transmission: Office of Comm. Tancangco"10
THOUSAND PESOS (Php15,000.00) for each phase. For this purpose,
interested offerors, vendors, suppliers or lessors have the option to
On February 17, 2003, the poll body released the Request for Proposal (RFP)
participate in any or all of the three (3) phases of the comprehensive
to procure the election automation machines. The Bids and Awards
Automated Election System.
Committee (BAC) of Comelec convened a pre-bid conference on February
18, 2003 and gave prospective bidders until March 10, 2003 to submit their
A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at respective bids.
the Session Hall, Commission on Elections, Postigo Street, Intramuros,
Manila. Should there be questions on the bid documents, bidders are
Among others, the RFP provided that bids from manufacturers, suppliers
required to submit their queries in writing to the BAC Secretariat prior to the
and/or distributors forming themselves into a joint venture may be
scheduled Pre-Bid Conference.
entertained, provided that the Philippine ownership thereof shall be at least
60 percent. Joint venture is defined in the RFP as "a group of two or more
Deadline for submission to the BAC of applications for eligibility and bid manufacturers, suppliers and/or distributors that intend to be jointly and
envelopes for the supply of the comprehensive Automated Election System severally responsible or liable for a particular contract."11
shall be at the Session Hall, Commission on Elections, Postigo Street,
Intramuros, Manila on 28 February 2003 at 9:00 a.m.
Basically, the public bidding was to be conducted under a two-envelope/two
stage system. The bidder’s first envelope or the Eligibility Envelope should
The COMELEC reserves the right to review the qualifications of the bidders establish the bidder’s eligibility to bid and its qualifications to perform the acts
after the bidding and before the contract is executed. Should such review if accepted. On the other hand, the second envelope would be the Bid
uncover any misrepresentation made in the eligibility statements, or any Envelope itself. The RFP outlines the bidding procedures as follows:
changes in the situation of the bidder to materially downgrade the
substance of such statements, the COMELEC shall disqualify the bidder
"25. Determination of Eligibility of Prospective Bidders
upon due notice without any obligation whatsoever for any expenses or
losses that may be incurred by it in the preparation of its bid."9
"25.1 The eligibility envelopes of prospective Bidders shall be opened first to
determine their eligibility. In case any of the requirements specified in Clause
On February 11, 2003, Comelec issued Resolution No. 5929 clarifying
20 is missing from the first bid envelope, the BAC shall declare said
certain eligibility criteria for bidders and the schedule of activities for the
prospective Bidder as ineligible to bid. Bid envelopes of ineligible Bidders
project bidding, as follows:
shall be immediately returned unopened.
 15
"25.2 The eligibility of prospective Bidders shall be determined using simple
‘pass/fail’ criteria and shall be determined as either eligible or ineligible. If
the prospective Bidder is rated ‘passed’ for all the legal, technical and
financial requirements, he shall be considered eligible. If the prospective
Bidder is rated ‘failed’ in any of the requirements, he shall be considered
ineligible.
"26. Bid Examination/Evaluation
"26.1 The BAC will examine the Bids to determine whether they are
complete, whether any computational errors have been made, whether
required securities have been furnished, whether the documents have been
properly signed, and whether the Bids are generally in order.
"26.2 The BAC shall check the submitted documents of each Bidder against
the required documents enumerated under Clause 20, to ascertain if they
are all present in the Second bid envelope (Technical Envelope). In case
one (1) or more of the required documents is missing, the BAC shall rate
the Bid concerned as ‘failed’ and immediately return to the Bidder its Third
bid envelope (Financial Envelope) unopened. Otherwise, the BAC shall rate
the first bid envelope as ‘passed’.
"26.3 The BAC shall immediately open the Financial Envelopes of the
Bidders whose Technical Envelopes were passed or rated on or above the
passing score. Only Bids that are determined to contain all the bid
requirements for both components shall be rated ‘passed’ and shall
immediately be considered for evaluation and comparison.
"26.4 In the opening and examination of the Financial Envelope, the BAC
shall announce and tabulate the Total Bid Price as calculated. Arithmetical
errors will be rectified on the following basis: If there is a discrepancy
between words and figures, the amount in words will prevail. If there is a
discrepancy between the unit price and the total price that is obtained by
multiplying the unit price and the quantity, the unit price shall prevail and the
total price shall be corrected accordingly. If there is a discrepancy between
the Total Bid Price and the sum of the total prices, the sum of the total
prices prevail and the Total Bid Price shall be corrected accordingly.
"26.5 Financial Proposals which do not clearly state the Total Bid Price shall
be rejected. Also, Total Bid Price as calculated that exceeds the approved
budget for the contract shall also be rejected.
27. Comparison of Bids
27.1 The bid price shall be deemed to embrace all costs, charges and fees
associated with carrying out all the elements of the proposed Contract,
including but not limited to, license fees, freight charges and taxes.
27.2 The BAC shall establish the calculated prices of all Bids rated ‘passed’
and rank the same in ascending order.
xxxxxxxxx
"29. Postqualification
"29.1 The BAC will determine to its satisfaction whether the Bidder selected
as having submitted the lowest calculated bid is qualified to satisfactorily
perform the Contract.
"29.2 The determination will take into account the Bidder’s financial,
technical and production capabilities/resources. It will be based upon an
examination of the documentary evidence of the Bidder’s qualification
submitted by the Bidder as well as such other information as the BAC
deems necessary and appropriate.
"29.3 A bid determined as not substantially responsive will be rejected by
the BAC and may not subsequently be made responsive by the Bidder by
correction of the non-conformity.
"29.4 The BAC may waive any informality or non-conformity or irregularity in
a bid which does not constitute a material deviation, provided such waiver
does not prejudice or affect the relative ranking of any Bidder.
"29.5 Should the BAC find that the Bidder complies with the legal, financial
and technical requirements, it shall make an affirmative determination which
shall be a prerequisite for award of the Contract to the Bidder. Otherwise, it
will make a negative determination which will result in rejection of the
Bidder’s bid, in which event the BAC will proceed to the next lowest
calculated bid to make a similar determination of that Bidder’s capabilities to
perform satisfactorily."12
Out of the 57 bidders,13 the BAC found MPC and the Total Information
Management Corporation (TIMC) eligible. For technical evaluation, they were
referred to the BAC’s Technical Working Group (TWG) and the Department
of Science and Technology (DOST).
In its Report on the Evaluation of the Technical Proposals on Phase II, DOST
said that both MPC and TIMC had obtained a number of failed marks in the
technical evaluation. Notwithstanding these failures, Comelec en banc, on
April 15, 2003, promulgated Resolution No. 6074 awarding the project to
MPC. The Commission publicized this Resolution and the award of the
project to MPC on May 16, 2003.
On May 29, 2003, five individuals and entities (including the herein
Petitioners Information Technology Foundation of the Philippines,
represented by its president, Alfredo M. Torres; and Ma. Corazon Akol) wrote
a letter14 to Comelec Chairman Benjamin Abalos Sr. They protested the
award of the Contract to Respondent MPC "due to glaring irregularities in the
manner in which the bidding process had been conducted." Citing therein the
noncompliance with eligibility as well as technical and procedural
requirements (many of which have been discussed at length in the Petition),
they sought a re-bidding.
In a letter-reply dated June 6, 2003,15 the Comelec chairman -- speaking
through Atty. Jaime Paz, his head executive assistant -- rejected the protest
and declared that the award "would stand up to the strictest scrutiny."
Hence, the present Petition.16
The Issues
In their Memorandum, petitioners raise the following issues for our
consideration:
"1. The COMELEC awarded and contracted with a non-eligible entity; x x x
"2. Private respondents failed to pass the Technical Test as required in the
RFP. Notwithstanding, such failure was ignored. In effect, the COMELEC
changed the rules after the bidding in effect changing the nature of the
contract bidded upon.
"3. Petitioners have locus standi.
"4. Instant Petition is not premature. Direct resort to the Supreme Court is
justified."17
In the main, the substantive issue is whether the Commission on Elections,
the agency vested with the exclusive constitutional mandate to oversee
elections, gravely abused its discretion when, in the exercise of its
administrative functions, it awarded to MPC the contract for the second
phase of the comprehensive Automated Election System.
Before discussing the validity of the award to MPC, however, we deem it
proper to first pass upon the procedural issues: the legal standing of
petitioners and the alleged prematurity of the Petition.
This Court’s Ruling
The Petition is meritorious.
 16
First Procedural Issue:
Locus Standi of Petitioners
Respondents chorus that petitioners do not possess locus standi, inasmuch
as they are not challenging the validity or constitutionality of RA 8436.
Moreover, petitioners supposedly admitted during the Oral Argument that
no law had been violated by the award of the Contract. Furthermore, they
allegedly have no actual and material interest in the Contract and, hence,
do not stand to be injured or prejudiced on account of the award.
On the other hand, petitioners -- suing in their capacities as taxpayers,
registered voters and concerned citizens -- respond that the issues central
to this case are "of transcendental importance and of national interest."
Allegedly, Comelec’s flawed bidding and questionable award of the
Contract to an unqualified entity would impact directly on the success or the
failure of the electoral process. Thus, any taint on the sanctity of the ballot
as the expression of the will of the people would inevitably affect their faith
in the democratic system of government. Petitioners further argue that the
award of any contract for automation involves disbursement of public funds
in gargantuan amounts; therefore, public interest requires that the laws
governing the transaction must be followed strictly.
We agree with petitioners. Our nation’s political and economic future
virtually hangs in the balance, pending the outcome of the 2004 elections.
Hence, there can be no serious doubt that the subject matter of this case is
"a matter of public concern and imbued with public interest"; 18 in other
words, it is of "paramount public interest"19 and "transcendental
importance."20 This fact alone would justify relaxing the rule on legal
standing, following the liberal policy of this Court whenever a case involves
"an issue of overarching significance to our society."21 Petitioners’ legal
standing should therefore be recognized and upheld.
Moreover, this Court has held that taxpayers are allowed to sue when there
is a claim of "illegal disbursement of public funds,"22 or if public money is
being "deflected to any improper purpose";23 or when petitioners seek to
restrain respondent from "wasting public funds through the enforcement of
an invalid or unconstitutional law."24 In the instant case, individual
petitioners, suing as taxpayers, assert a material interest in seeing to it that
public funds are properly and lawfully used. In the Petition, they claim that
the bidding was defective, the winning bidder not a qualified entity, and the
award of the Contract contrary to law and regulation. Accordingly, they seek
to restrain respondents from implementing the Contract and, necessarily,
from making any unwarranted expenditure of public funds pursuant thereto.
Thus, we hold that petitioners possess locus standi.
Second Procedural Issue:
Alleged Prematurity Due to Non-Exhaustion of Administrative
Remedies
Respondents claim that petitioners acted prematurely, since they had not
first utilized the protest mechanism available to them under RA 9184, the
Government Procurement Reform Act, for the settlement of disputes
pertaining to procurement contracts.
Section 55 of RA 9184 states that protests against decisions of the Bidding
and Awards Committee in all stages of procurement may be lodged with the
head of the procuring entity by filing a verified position paper and paying a
protest fee. Section 57 of the same law mandates that in no case shall any
such protest stay or delay the bidding process, but it must first be resolved
before any award is made.
On the other hand, Section 58 provides that court action may be resorted to
only after the protests contemplated by the statute shall have been
completed. Cases filed in violation of this process are to be dismissed for
lack of jurisdiction. Regional trial courts shall have jurisdiction over final
decisions of the head of the procuring entity, and court actions shall be
instituted pursuant to Rule 65 of the 1997 Rules of Civil Procedure.
Respondents assert that throughout the bidding process, petitioners never
questioned the BAC Report finding MPC eligible to bid and recommending
the award of the Contract to it (MPC). According to respondents, the Report
should have been appealed to the Comelc en banc, pursuant to the
aforementioned sections of RA 9184. In the absence of such appeal, the
determination and recommendation of the BAC had become final.
The Court is not persuaded.
Respondent Comelec came out with its en banc Resolution No. 6074 dated
April 15, 2003, awarding the project to Respondent MPC even before the
BAC managed to issue its written report and recommendation on April 21,
2003. Thus, how could petitioners have appealed the BAC’s
recommendation or report to the head of the procuring entity (the chairman of
Comelec), when the Comelec en banc had already approved the award of
the contract to MPC even before petitioners learned of the BAC
recommendation?
It is claimed25 by Comelec that during its April 15, 2003 session, it received
and approved the verbal report and recommendation of the BAC for the
award of the Contract to MPC, and that the BAC subsequently re-affirmed its
verbal report and recommendation by submitting it in writing on April 21,
2003. Respondents insist that the law does not require that the BAC Report
be in writing before Comelec can act thereon; therefore, there is allegedly
nothing irregular about the Report as well as the en banc Resolution.
However, it is obvious that petitioners could have appealed the BAC’s report
and recommendation to the head of the procuring entity (the Comelec chair)
only upon their discovery thereof, which at the very earliest would have been
on April 21, 2003, when the BAC actually put its report in writing and finally
released it. Even then, what would have been the use of protesting/appealing
the report to the Comelec chair, when by that time the Commission en banc
(including the chairman himself) had already approved the BAC Report and
awarded the Contract to MPC?
And even assuming arguendo that petitioners had somehow gotten wind of
the verbal BAC report on April 15, 2003 (immediately after the en banc
session), at that point the Commission en banc had already given its
approval to the BAC Report along with the award to MPC. To put it bluntly,
the Comelec en banc itself made it legally impossible for petitioners to avail
themselves of the administrative remedy that the Commission is so impiously
harping on. There is no doubt that they had not been accorded the
opportunity to avail themselves of the process provided under Section 55 of
RA 9184, according to which a protest against a decision of the BAC may be
filed with the head of the procuring entity. Nemo tenetur ad impossible,26 to
borrow private respondents’ favorite Latin excuse.27
Some Observations on the BAC Report to the Comelec
We shall return to this issue of alleged prematurity shortly, but at this
interstice, we would just want to put forward a few observations regarding the
BAC Report and the Comelec en banc’s approval thereof.
First, Comelec contends that there was nothing unusual about the fact that
the Report submitted by the BAC came only after the former had already
awarded the Contract, because the latter had been asked to render its report
and recommendation orally during the Commission’s en banc session on
April 15, 2003. Accordingly, Comelec supposedly acted upon such oral
recommendation and approved the award to MPC on the same day, following
which the recommendation was subsequently reduced into writing on April 21,
2003. While not entirely outside the realm of the possible, this interesting and
unique spiel does not speak well of the process that Comelec supposedly
went through in making a critical decision with respect to a multi-billion-peso
contract.
We can imagine that anyone else standing in the shoes of the Honorable
Commissioners would have been extremely conscious of the overarching
need for utter transparency. They would have scrupulously avoided the
slightest hint of impropriety, preferring to maintain an exacting regularity in
the performance of their duties, instead of trying to break a speed record in
the award of multi-billion-peso contracts. After all, between April 15 and April
21 were a mere six (6) days. Could Comelec not have waited out six more
days for the written report of the BAC, instead of rushing pell-mell into the
arms of MPC? Certainly, respondents never cared to explain the nature of
 17
the Commission’s dire need to act immediately without awaiting the formal,
written BAC Report.
In short, the Court finds it difficult to reconcile the uncommon dispatch with
which Comelec acted to approve the multi-billion-peso deal, with its claim of
having been impelled by only the purest and most noble of motives.
At any rate, as will be discussed later on, several other factors combine to
lend negative credence to Comelec’s tale.
Second, without necessarily ascribing any premature malice or
premeditation on the part of the Comelec officials involved, it should
nevertheless be conceded that this cart-before-the-horse maneuver
(awarding of the Contract ahead of the BAC’s written report) would
definitely serve as a clever and effective way of averting and frustrating any
impending protest under Section 55.
Having made the foregoing observations, we now go back to the question of
exhausting administrative remedies. Respondents may not have realized it,
but the letter addressed to Chairman Benjamin Abalos Sr. dated May 29,
200328 serves to eliminate the prematurity issue as it was an actual written
protest against the decision of the poll body to award the Contract. The
letter was signed by/for, inter alia, two of herein petitioners: the Information
Technology Foundation of the Philippines, represented by its president,
Alfredo M. Torres; and Ma. Corazon Akol.
Such letter-protest is sufficient compliance with the requirement to exhaust
administrative remedies particularly because it hews closely to the
procedure outlined in Section 55 of RA 9184.
And even without that May 29, 2003 letter-protest, the Court still holds that
petitioners need not exhaust administrative remedies in the light of Paat v.
Court of Appeals.29 Paat enumerates the instances when the rule on
exhaustion of administrative remedies may be disregarded, as follows:
"(1) when there is a violation of due process,
(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal amounting to lack or
excess of jurisdiction,
(4) when there is estoppel on the part of the administrative agency
concerned,
(5) when there is irreparable injury,
(6) when the respondent is a department secretary whose acts as an alter
ego of the President bears the implied and assumed approval of the latter,
(7) when to require exhaustion of administrative remedies would be
unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land case proceedings,
(10) when the rule does not provide a plain, speedy and adequate remedy,
and
(11) when there are circumstances indicating the urgency of judicial
intervention."30
The present controversy precisely falls within the exceptions listed as Nos.
7, 10 and 11: "(7) when to require exhaustion of administrative remedies
would be unreasonable; (10) when the rule does not provide a plain, speedy
and adequate remedy, and (11) when there are circumstances indicating
the urgency of judicial intervention." As already stated, Comelec itself made
the exhaustion of administrative remedies legally impossible or, at the very
least, "unreasonable."
In any event, the peculiar circumstances surrounding the unconventional
rendition of the BAC Report and the precipitate awarding of the Contract by
the Comelec en banc -- plus the fact that it was racing to have its Contract
with MPC implemented in time for the elections in May 2004 (barely four
months away) -- have combined to bring about the urgent need for judicial
intervention, thus prompting this Court to dispense with the procedural
exhaustion of administrative remedies in this case.
Main Substantive Issue:
Validity of the Award to MPC
We come now to the meat of the controversy. Petitioners contend that the
award is invalid, since Comelec gravely abused its discretion when it did the
following:
1. Awarded the Contract to MPC though it did not even participate in the
bidding
2. Allowed MPEI to participate in the bidding despite its failure to meet the
mandatory eligibility requirements
3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC
despite the issuance by the BAC of its Report, which formed the basis of the
assailed Resolution, only on April 21, 200331
4. Awarded the Contract, notwithstanding the fact that during the bidding
process, there were violations of the mandatory requirements of RA 8436 as
well as those set forth in Comelec’s own Request for Proposal on the
automated election system
5. Refused to declare a failed bidding and to conduct a re-bidding despite the
failure of the bidders to pass the technical tests conducted by the Department
of Science and Technology
6. Failed to follow strictly the provisions of RA 8436 in the conduct of the
bidding for the automated counting machines
After reviewing the slew of pleadings as well as the matters raised during the
Oral Argument, the Court deems it sufficient to focus discussion on the
following major areas of concern that impinge on the issue of grave abuse of
discretion:
A. Matters pertaining to the identity, existence and eligibility of MPC as a
bidder
B. Failure of the automated counting machines (ACMs) to pass the DOST
technical tests
C. Remedial measures and re-testings undertaken by Comelec and DOST
after the award, and their effect on the present controversy
A.
Failure to Establish the Identity, Existence and Eligibility of the Alleged
Consortium as a Bidder
On the question of the identity and the existence of the real bidder,
respondents insist that, contrary to petitioners’ allegations, the bidder was not
Mega Pacific eSolutions, Inc. (MPEI), which was incorporated only on
February 27, 2003, or 11 days prior to the bidding itself. Rather, the bidder
was Mega Pacific Consortium (MPC), of which MPEI was but a part. As proof
thereof, they point to the March 7, 2003 letter of intent to bid, signed by the
president of MPEI allegedly for and on behalf of MPC. They also call
attention to the official receipt issued to MPC, acknowledging payment for the
 18
bidding documents, as proof that it was the "consortium" that participated in It thus follows that, prior the award of the Contract, there was no
the bidding process. documentary or other basis for Comelec to conclude that a consortium had
actually been formed amongst MPEI, SK C&C and WeSolv, along with
Election.com and ePLDT.33 Neither was there anything to indicate the exact
We do not agree. The March 7, 2003 letter, signed by only one signatory --
relationships between and among these firms; their diverse roles,
"Willy U. Yu, President, Mega Pacific eSolutions, Inc., (Lead Company/
undertakings and prestations, if any, relative to the prosecution of the project,
Proponent) For: Mega Pacific Consortium" -- and without any further proof,
the extent of their respective investments (if any) in the supposed consortium
does not by itself prove the existence of the consortium. It does not show
or in the project; and the precise nature and extent of their respective
that MPEI or its president have been duly pre-authorized by the other
liabilities with respect to the contract being offered for bidding. And apart from
members of the putative consortium to represent them, to bid on their
the self-serving letter of March 7, 2003, there was not even any indication
collective behalf and, more important, to commit them jointly and severally
that MPEI was the lead company duly authorized to act on behalf of the
to the bid undertakings. The letter is purely self-serving and uncorroborated.
others.

Neither does an official receipt issued to MPC, acknowledging payment for

So, it necessarily follows that, during the bidding process, Comelec had no
the bidding documents, constitute proof that it was the purported
basis at all for determining that the alleged consortium really existed and was
consortium that participated in the bidding. Such receipts are issued by
eligible and qualified; and that the arrangements among the members were
cashiers without any legally sufficient inquiry as to the real identity
satisfactory and sufficient to ensure delivery on the Contract and to protect
orexistence of the supposed payor.
the government’s interest.

To assure itself properly of the due existence (as well as eligibility and
Notwithstanding such deficiencies, Comelec still deemed the "consortium"
qualification) of the putative consortium, Comelec’s BAC should have
eligible to participate in the bidding, proceeded to open its Second Envelope,
examined the bidding documents submitted on behalf of MPC. They would
and eventually awarded the bid to it, even though -- per the Comelec’s own
have easily discovered the following fatal flaws.
RFP -- the BAC should have declared the MPC ineligible to bid and returned
the Second (Bid) Envelope unopened.
Two-Envelope,
Inasmuch as Comelec should not have considered MPEI et al. as comprising
Two-Stage System a consortium or joint venture, it should not have allowed them to avail
themselves of the provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the
Build-Operate-Transfer Law), as amended by RA 7718. This provision states
As stated earlier in our factual presentation, the public bidding system
in part that a joint venture/consortium proponent shall be evaluated based on
designed by Comelec under its RFP (Request for Proposal for the
the individual or collective experience of the member-firms of the joint
Automation of the 2004 Election) mandated the use of a two-envelope,
venture or consortium and of the contractor(s) that it has engaged for the
two-stage system. A bidder’s first envelope (Eligibility Envelope) was meant
project. Parenthetically, respondents have uniformly argued that the said IRR
to establish its eligibility to bid and its qualifications and capacity to perform
of RA 6957, as amended, have suppletory application to the instant case.
the contract if its bid was accepted, while the second envelope would be the
Bid Envelope itself.
Hence, had the proponent MPEI been evaluated based solely on its own
experience, financial and operational track record or lack thereof, it would
The Eligibility Envelope was to contain legal documents such as articles of
surely not have qualified and would have been immediately considered
incorporation, business registrations, licenses and permits, mayor’s permit,
ineligible to bid, as respondents readily admit.
VAT certification, and so forth; technical documents containing
documentary evidence to establish the track record of the bidder and its
technical and production capabilities to perform the contract; and financial At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily
documents, including audited financial statements for the last three years, failing to observe its own rules, policies and guidelines with respect to the
to establish the bidder’s financial capacity. bidding process, thereby negating a fair, honest and competitive bidding.

In the case of a consortium or joint venture desirous of participating in the Commissioners Not Aware of Consortium
bidding, it goes without saying that the Eligibility Envelope would
necessarily have to include a copy of the joint venture agreement, the
In this regard, the Court is beguiled by the statements of Commissioner
consortium agreement or memorandum of agreement -- or a business plan
Florentino Tuason Jr., given in open court during the Oral Argument last
or some other instrument of similar import -- establishing the due existence,
October 7, 2003. The good commissioner affirmed that he was aware, of his
composition and scope of such aggrupation. Otherwise, how would
own personal knowledge, that there had indeed been a written agreement
Comelec know who it was dealing with, and whether these parties are
among the "consortium" members,34 although it was an internal matter
qualified and capable of delivering the products and services being offered
among them,35 and of the fact that it would be presented by counsel for
for bidding?32
private respondent.36

In the instant case, no such instrument was submitted to Comelec during

However, under questioning by Chief Justice Hilario G. Davide Jr. and
the bidding process. This fact can be conclusively ascertained by
Justice Jose C. Vitug, Commissioner Tuason in effect admitted that, while he
scrutinizing the two-inch thick "Eligibility Requirements" file submitted by
was the commissioner-in-charge of Comelec’s Legal Department, he had
Comelec last October 9, 2003, in partial compliance with this Court’s
never seen, even up to that late date, the agreement he spoke of. 37 Under
instructions given during the Oral Argument. This file purports to replicate
further questioning, he was likewise unable to provide any information
the eligibility documents originally submitted to Comelec by MPEI allegedly
regarding the amounts invested into the project by several members of the
on behalf of MPC, in connection with the bidding conducted in March 2003.
claimed consortium.38 A short while later, he admitted that the Commission
Included in the file are the incorporation papers and financial statements of
had not taken a look at the agreement (if any).39
the members of the supposed consortium and certain certificates, licenses
and permits issued to them.
He tried to justify his position by claiming that he was not a member of the
BAC. Neither was he the commissioner-in-charge of the Phase II
However, there is no sign whatsoever of any joint venture agreement,
Modernization project (the automated election system); but that, in any case,
consortium agreement, memorandum of agreement, or business plan
the BAC and the Phase II Modernization Project Team did look into the
executed among the members of the purported consortium.
aspect of the composition of the consortium.

The only logical conclusion is that no such agreement was ever submitted
It seems to the Court, though, that even if the BAC or the Phase II Team had
to the Comelec for its consideration, as part of the bidding process.
taken charge of evaluating the eligibility, qualifications and credentials of the
consortium-bidder, still, in all probability, the former would have referred the
task to Commissioner Tuason, head of Comelec’s Legal Department. That
 19
task was the appreciation and evaluation of the legal effects and
consequences of the terms, conditions, stipulations and covenants
contained in any joint venture agreement, consortium agreement or a
similar document -- assuming of course that any of these was available at
the time. The fact that Commissioner Tuason was barely aware of the
situation bespeaks the complete absence of such document, or the utter
failure or neglect of the Comelec to examine it -- assuming it was available
at all -- at the time the award was made on April 15, 2003.
In any event, the Court notes for the record that Commissioner Tuason
basically contradicted his statements in open court about there being one
written agreement among all the consortium members, when he
subsequently referred40 to the four (4) Memoranda of Agreement (MOAs)
executed by them.41
At this juncture, one might ask: What, then, if there are four MOAs instead
of one or none at all? Isn’t it enough that there are these corporations
coming together to carry out the automation project? Isn’t it true, as
respondent aver, that nowhere in the RFP issued by Comelec is it required
that the members of the joint venture execute a single written agreement to
prove the existence of a joint venture. Indeed, the intention to be jointly and
severally liable may be evidenced not only by a single joint venture
agreement, but also by supplementary documents executed by the parties
signifying such intention. What then is the big deal?
The problem is not that there are four agreements instead of only one. The
problem is that Comelec never bothered to check. It never based its
decision on documents or other proof that would concretely establish the
existence of the claimed consortium or joint venture or agglomeration. It
relied merely on the self-serving representation in an uncorroborated letter
signed by only one individual, claiming that his company represented a
"consortium" of several different corporations. It concluded forthwith that a
consortium indeed existed, composed of such and such members, and
thereafter declared that the entity was eligible to bid.
True, copies of financial statements and incorporation papers of the alleged
"consortium" members were submitted. But these papers did not establish
the existence of a consortium, as they could have been provided by the
companies concerned for purposes other than to prove that they were part
of a consortium or joint venture. For instance, the papers may have been
intended to show that those companies were each qualified to be a
sub-contractor (and nothing more) in a major project. Those documents did
not by themselves support the assumption that a consortium or joint venture
existed among the companies.
In brief, despite the absence of competent proof as to the existence and
eligibility of the alleged consortium (MPC), its capacity to deliver on the
Contract, and the members’ joint and several liability therefor, Comelec
nevertheless assumed that such consortium existed and was eligible. It
then went ahead and considered the bid of MPC, to which the Contract was
eventually awarded, in gross violation of the former’s own bidding rules and
procedures contained in its RFP. Therein lies Comelec’s grave abuse of
discretion.
Sufficiency of the Four Agreements
Instead of one multilateral agreement executed by, and effective and
binding on, all the five "consortium members" -- as earlier claimed by
Commissioner Tuason in open court -- it turns out that what was actually
executed were four (4) separate and distinct bilateral
Agreements.42 Obviously, Comelec was furnished copies of these
Agreements only after the bidding process had been terminated, as these
were not included in the Eligibility Documents. These Agreements are as
follows:
· A Memorandum of Agreement between MPEI and SK C&C
· A Memorandum of Agreement between MPEI and WeSolv
· A "Teaming Agreement" between MPEI and Election.com Ltd.
· A "Teaming Agreement" between MPEI and ePLDT
In sum, each of the four different and separate bilateral Agreements is valid
and binding only between MPEI and the other contracting party, leaving the
other "consortium" members total strangers thereto. Under this setup, MPEI
dealt separately with each of the "members," and the latter (WeSolv, SK C&C,
Election.com, and ePLDT) in turn had nothing to do with one another, each
dealing only with MPEI.
Respondents assert that these four Agreements were sufficient for the
purpose of enabling the corporations to still qualify (even at that late stage)
as a consortium or joint venture, since the first two Agreements had allegedly
set forth the joint and several undertakings among the parties, whereas the
latter two clarified the parties’ respective roles with regard to the Project, with
MPEI being the independent contractor and Election.com and ePLDT the
subcontractors.
Additionally, the use of the phrase "particular contract" in the Comelec’s
Request for Proposal (RFP), in connection with the joint and several liabilities
of companies in a joint venture, is taken by them to mean that all the
members of the joint venture need not be solidarily liable for the entire project
or joint venture, because it is sufficient that the lead company and the
member in charge of a particular contract or aspect of the joint venture agree
to be solidarily liable.
At this point, it must be stressed most vigorously that the submission of the
four bilateral Agreements to Comelec after the end of the bidding process did
nothing to eliminate the grave abuse of discretion it had already committed
on April 15, 2003.
Deficiencies Have Not Been "Cured"
In any event, it is also claimed that the automation Contract awarded by
Comelec incorporates all documents executed by the "consortium" members,
even if these documents are not referred to therein. The basis of this
assertion appears to be the passages from Section 1.4 of the Contract, which
is reproduced as follows:
"All Contract Documents shall form part of the Contract even if they or any
one of them is not referred to or mentioned in the Contract as forming a part
thereof. Each of the Contract Documents shall be mutually complementary
and explanatory of each other such that what is noted in one although not
shown in the other shall be considered contained in all, and what is required
by any one shall be as binding as if required by all, unless one item is a
correction of the other.
"The intent of the Contract Documents is the proper, satisfactory and timely
execution and completion of the Project, in accordance with the Contract
Documents. Consequently, all items necessary for the proper and timely
execution and completion of the Project shall be deemed included in the
Contract."
Thus, it is argued that whatever perceived deficiencies there were in the
supplementary contracts -- those entered into by MPEI and the other
members of the "consortium" as regards their joint and several undertakings
-- have been cured. Better still, such deficiencies have supposedly been
prevented from arising as a result of the above-quoted provisions, from which
it can be immediately established that each of the members of MPC assumes
the same joint and several liability as the other members.
The foregoing argument is unpersuasive. First, the contract being referred to,
entitled "The Automated Counting and Canvassing Project Contract," is
between Comelec and MPEI, not the alleged consortium, MPC. To repeat, it
is MPEI -- not MPC -- that is a party to the Contract. Nowhere in that Contract
is there any mention of a consortium or joint venture, of members thereof,
much less of joint and several liability. Supposedly executed sometime in
May 2003,43 the Contract bears a notarization date of June 30, 2003, and
contains the signature of Willy U. Yu signing as president of MPEI (not for
and on behalf of MPC), along with that of the Comelec chair. It provides in
Section 3.2 that MPEI (not MPC) is to supply the Equipment and perform the
Services under the Contract, in accordance with the appendices thereof;
nothing whatsoever is said about any consortium or joint venture or
partnership.
 20
Second, the portions of Section 1.4 of the Contract reproduced above do and the consortium member concerned for the particular phase of the project.
not have the effect of curing (much less preventing) deficiencies in the This assertion is an absolute non sequitur.
bilateral agreements entered into by MPEI with the other members of the
"consortium," with respect to their joint and several liabilities. The term
Enforcement of Liabilities Under the Civil Code Not Possible
"Contract Documents," as used in the quoted passages of Section 1.4, has
a well-defined meaning and actually refers only to the following documents:
In any event, it is claimed that Comelec may still enforce the liability of the
"consortium" members under the Civil Code provisions on partnership,
· The Contract itself along with its appendices
reasoning that MPEI et al. represented themselves as partners and members
of MPC for purposes of bidding for the Project. They are, therefore, liable to
· The Request for Proposal (also known as "Terms of Reference") issued by the Comelec to the extent that the latter relied upon such representation.
the Comelec, including the Tender Inquiries and Bid Bulletins Their liability as partners is solidary with respect to everything chargeable to
the partnership under certain conditions.
· The Tender Proposal submitted by MPEI
The Court has two points to make with respect to this argument. First, it must
be recalled that SK C&C, WeSolv, Election.com and ePLDT never
In other words, the term "Contract Documents" cannot be understood as
represented themselves as partners and members of MPC, whether for
referring to or including the MOAs and the Teaming Agreements entered
purposes of bidding or for something else. It was MPEI alone that
into by MPEI with SK C&C, WeSolv, Election.com and ePLDT. This much is
represented them to be members of a "consortium" it supposedly headed.
very clear and admits of no debate. The attempt to use the provisions of
Thus, its acts may not necessarily be held against the other "members."
Section 1.4 to shore up the MOAs and the Teaming Agreements is simply
unwarranted.
Second, this argument of the OSG in its Memorandum44 might possibly apply
in the absence of a joint venture agreement or some other writing that
Third and last, we fail to see how respondents can arrive at the conclusion
discloses the relationship of the "members" with one another. But precisely,
that, from the above-quoted provisions, it can be immediately established
this case does not deal with a situation in which there is nothing in writing to
that each of the members of MPC assumes the same joint and several
serve as reference, leaving Comelec to rely on mere representations and
liability as the other members. Earlier, respondents claimed exactly the
therefore justifying a falling back on the rules on partnership. For, again, the
opposite -- that the two MOAs (between MPEI and SK C&C, and between
terms and stipulations of the MOAs entered into by MPEI with SK C&C and
MPEI and WeSolv) had set forth the joint and several undertakings among
WeSolv, as well as the Teaming Agreements of MPEI with Election.com and
the parties; whereas the two Teaming Agreements clarified the parties’
ePLDT (copies of which have been furnished the Comelec) are very clear
respective roles with regard to the Project, with MPEI being the independent
with respect to the extent and the limitations of the firms’ respective liabilities.
contractor and Election.com and ePLDT the subcontractors.

Obviously, given the differences in their relationships, their respective
liabilities cannot be the same. Precisely, the very clear terms and
stipulations contained in the MOAs and the Teaming Agreements -- entered
into by MPEI with SK C&C, WeSolv, Election.com and ePLDT -- negate the
idea that these "members" are on a par with one another and are, as such,
assuming the same joint and several liability.
Moreover, respondents have earlier seized upon the use of the term
"particular contract" in the Comelec’s Request for Proposal (RFP), in order
to argue that all the members of the joint venture did not need to be
solidarily liable for the entire project or joint venture. It was sufficient that the
lead company and the member in charge of a particular contract or aspect
of the joint venture would agree to be solidarily liable. The glaring lack of
consistency leaves us at a loss. Are respondents trying to establish the
same joint and solidary liability among all the "members" or not?
Enforcement of Liabilities Problematic
Next, it is also maintained that the automation Contract between Comelec
and the MPEI confirms the solidary undertaking of the lead company and
the consortium member concerned for each particular Contract, inasmuch
as the position of MPEI and anyone else performing the services
contemplated under the Contract is described therein as that of an
independent contractor.
The Court does not see, however, how this conclusion was arrived at. In the
first place, the contractual provision being relied upon by respondents is
Article 14, "Independent Contractors," which states: "Nothing contained
herein shall be construed as establishing or creating between the
COMELEC and MEGA the relationship of employee and employer or
principal and agent, it being understood that the position of MEGA and of
anyone performing the Services contemplated under this Contract, is that of
an independent contractor."
Obviously, the intent behind the provision was simply to avoid the creation
of an employer-employee or a principal-agent relationship and the
complications that it would produce. Hence, the Article states that the role
or position of MPEI, or anyone else performing on its behalf, is that of an
independent contractor. It is obvious to the Court that respondents are
stretching matters too far when they claim that, because of this provision,
the Contract in effect confirms the solidary undertaking of the lead company
In the case of WeSolv and SK C&C, their MOAs state that their liabilities,
while joint and several with MPEI, are limited only to the particular areas of
work wherein their services are engaged or their products utilized. As for
Election.com and ePLDT, their separate "Teaming Agreements" specifically
ascribe to them the role of subcontractor vis-à-vis MPEI as contractor and,
based on the terms of their particular agreements, neither Election.com nor
ePLDT is, with MPEI, jointly and severally liable to Comelec.45 It follows then
that in the instant case, there is no justification for anyone, much less
Comelec, to resort to the rules on partnership and partners’ liabilities.
Eligibility of a Consortium Based on the Collective Qualifications of Its
Members
Respondents declare that, for purposes of assessing the eligibility of the
bidder, the members of MPC should be evaluated on a collective basis.
Therefore, they contend, the failure of MPEI to submit financial statements
(on account of its recent incorporation) should not by itself disqualify MPC,
since the other members of the "consortium" could meet the criteria set out in
the RFP.
Thus, according to respondents, the collective nature of the undertaking of
the members of MPC, their contribution of assets and sharing of risks, and
the community of their interest in the performance of the Contract lead to
these reasonable conclusions: (1) that their collective qualifications should be
the basis for evaluating their eligibility; (2) that the sheer enormity of the
project renders it improbable to expect any single entity to be able to comply
with all the eligibility requirements and undertake the project by itself; and (3)
that, as argued by the OSG, the RFP allows bids from manufacturers,
suppliers and/or distributors that have formed themselves into a joint venture,
in recognition of the virtual impossibility of a single entity’s ability to respond
to the Invitation to Bid.
Additionally, argues the Comelec, the Implementing Rules and Regulations
of RA 6957 (the Build-Operate-Transfer Law) as amended by RA 7718 would
be applicable, as proponents of BOT projects usually form joint ventures or
consortiums. Under the IRR, a joint venture/consortium proponent shall be
evaluated based on the individual or the collective experience of the
member-firms of the joint venture/consortium and of the contractors the
proponent has engaged for the project.
Unfortunately, this argument seems to assume that the "collective" nature of
the undertaking of the members of MPC, their contribution of assets and
 21
sharing of risks, and the "community" of their interest in the performance of
the Contract entitle MPC to be treated as a joint venture or consortium; and
to be evaluated accordingly on the basis of the members’ collective
qualifications when, in fact, the evidence before the Court suggest
otherwise.
This Court in Kilosbayan v. Guingona46 defined joint venture as "an
association of persons or companies jointly undertaking some commercial
enterprise; generally, all contribute assets and share risks. It requires a
community of interest in the performance of the subject matter, a right to
direct and govern the policy in connection therewith, and [a] duty, which
may be altered by agreement to share both in profit and losses."
Going back to the instant case, it should be recalled that the automation
Contract with Comelec was not executed by the "consortium" MPC -- or by
MPEI for and on behalf of MPC -- but by MPEI, period. The said Contract
contains no mention whatsoever of any consortium or members thereof.
This fact alone seems to contradict all the suppositions about a joint
undertaking that would normally apply to a joint venture or consortium: that
it is a commercial enterprise involving a community of interest, a sharing of
risks, profits and losses, and so on.
Now let us consider the four bilateral Agreements, starting with the
Memorandum of Agreement between MPEI and WeSolv Open Computing,
Inc., dated March 5, 2003. The body of the MOA consists of just seven (7)
short paragraphs that would easily fit in one page! It reads as follows:
"1. The parties agree to cooperate in successfully implementing the Project
in the substance and form as may be most beneficial to both parties and
other subcontractors involved in the Project.
"2. Mega Pacific shall be responsible for any contract negotiations and
signing with the COMELEC and, subject to the latter’s approval, agrees to
give WeSolv an opportunity to be present at meetings with the COMELEC
concerning WeSolv’s portion of the Project.
"3. WeSolv shall be jointly and severally liable with Mega Pacific only for the
particular products and/or services supplied by the former for the Project.
"4. Each party shall bear its own costs and expenses relative to this
agreement unless otherwise agreed upon by the parties.
"5. The parties undertake to do all acts and such other things incidental to,
necessary or desirable or the attainment of the objectives and purposes of
this Agreement.
"6. In the event that the parties fail to agree on the terms and conditions of
the supply of the products and services including but not limited to the
scope of the products and services to be supplied and payment terms,
WeSolv shall cease to be bound by its obligations stated in the
aforementioned paragraphs.
"7. Any dispute arising from this Agreement shall be settled amicably by the
parties whenever possible. Should the parties be unable to do so, the
parties hereby agree to settle their dispute through arbitration in accordance
with the existing laws of the Republic of the Philippines." (Underscoring
supplied.)
Even shorter is the Memorandum of Agreement between MPEI and SK
C&C Co. Ltd., dated March 9, 2003, the body of which consists of only six (6)
paragraphs, which we quote:
"1. All parties agree to cooperate in achieving the Consortium’s objective of
successfully implementing the Project in the substance and form as may be
most beneficial to the Consortium members and in accordance w/ the
demand of the RFP.
"2. Mega Pacific shall have full powers and authority to represent the
Consortium with the Comelec, and to enter and sign, for and in behalf of its
members any and all agreement/s which maybe required in the
implementation of the Project.
"3. Each of the individual members of the Consortium shall be jointly and
severally liable with the Lead Firm for the particular products and/or services
supplied by such individual member for the project, in accordance with their
respective undertaking or sphere of responsibility.
"4. Each party shall bear its own costs and expenses relative to this
agreement unless otherwise agreed upon by the parties.
"5. The parties undertake to do all acts and such other things incidental to,
necessary or desirable for the attainment of the objectives and purposes of
this Agreement.
"6. Any dispute arising from this Agreement shall be settled amicably by the
parties whenever possible. Should the parties be unable to do so, the parties
hereby agree to settle their dispute through arbitration in accordance with the
existing laws of the Republic of the Philippines." (Underscoring supplied.)
It will be noted that the two Agreements quoted above are very similar in
wording. Neither of them contains any specifics or details as to the exact
nature and scope of the parties’ respective undertakings, performances and
deliverables under the Agreement with respect to the automation project.
Likewise, the two Agreements are quite bereft of pesos-and-centavos data
as to the amount of investments each party contributes, its respective share
in the revenues and/or profit from the Contract with Comelec, and so forth --
all of which are normal for agreements of this nature. Yet, according to public
and private respondents, the participation of MPEI, WeSolv and SK C&C
comprises fully 90 percent of the entire undertaking with respect to the
election automation project, which is worth about P1.3 billion.
As for Election.com and ePLDT, the separate "Teaming Agreements" they
entered into with MPEI for the remaining 10 percent of the entire project
undertaking are ironically much longer and more detailed than the MOAs
discussed earlier. Although specifically ascribing to them the role of
subcontractor vis-à-vis MPEI as contractor, these Agreements are, however,
completely devoid of any pricing data or payment terms. Even the appended
Schedules supposedly containing prices of goods and services are shorn of
any price data. Again, as mentioned earlier, based on the terms of their
particular Agreements, neither Election.com nor ePLDT -- with MPEI -- is
jointly and severally liable to Comelec.
It is difficult to imagine how these bare Agreements -- especially the first two
-- could be implemented in practice; and how a dispute between the parties
or a claim by Comelec against them, for instance, could be resolved without
lengthy and debilitating litigations. Absent any clear-cut statement as to the
exact nature and scope of the parties’ respective undertakings, commitments,
deliverables and covenants, one party or another can easily dodge its
obligation and deny or contest its liability under the Agreement; or claim that
it is the other party that should have delivered but failed to.
Likewise, in the absence of definite indicators as to the amount of
investments to be contributed by each party, disbursements for expenses,
the parties’ respective shares in the profits and the like, it seems to the Court
that this situation could readily give rise to all kinds of misunderstandings and
disagreements over money matters.
Under such a scenario, it will be extremely difficult for Comelec to enforce the
supposed joint and several liabilities of the members of the "consortium." The
Court is not even mentioning the possibility of a situation arising from a failure
of WeSolv and MPEI to agree on the scope, the terms and the conditions for
the supply of the products and services under the Agreement. In that
situation, by virtue of paragraph 6 of its MOA, WeSolv would perforce cease
to be bound by its obligations -- including its joint and solidary liability with
MPEI under the MOA -- and could forthwith disengage from the project.
Effectively, WeSolv could at any time unilaterally exit from its MOA with MPEI
by simply failing to agree. Where would that outcome leave MPEI and
Comelec?
To the Court, this strange and beguiling arrangement of MPEI with the other
companies does not qualify them to be treated as a consortium or joint
venture, at least of the type that government agencies like the Comelec
should be dealing with. With more reason is it unable to agree to the proposal
to evaluate the members of MPC on a collective basis.
 22
In any event, the MPC members claim to be a joint venture/consortium; and
4. Uninterruptible back-up power system, that will engage immediately to
respondents have consistently been arguing that the IRR for RA 6957, as
allow operation of at least 10 minutes after outage, power surge or
amended, should be applied to the instant case in order to allow a collective √
abnormal electrical occurrences?
evaluation of consortium members. Surprisingly, considering these facts,
respondents have not deemed it necessary for MPC members to comply
with Section 5.4 (a) (iii) of the IRR for RA 6957 as amended.

According to the aforementioned provision, if the project proponent is a joint

venture or consortium, the members or participants thereof are required
5. Machine to
reads two-sided ballots in one pass? √
submit a sworn statement that, if awarded the contract, they shall bind
themselves to be jointly, severally and solidarily liable for the project
proponent’s obligations thereunder. This provision was supposed to mirror
Section 5 of RA 6957, as amended, which states: "In all cases, a
consortium that participates in a bid must present proof that the members of
the consortium have bound themselves jointly and 6. severally
Machineto can
assume
detect previously counted ballots and prevent previously
responsibility for any project. The withdrawal of any member √
counted ballotsoffrom
thebeing counted more than once?
consortium prior to the implementation of the project could be a ground for
the cancellation of the contract." The Court has certainly not seen any joint
and several undertaking by the MPC members that even approximates the
tenor of that which is described above. We fail to see why respondents
should invoke the IRR if it is for their benefit, but refuse to comply with it
otherwise. 7. Stores results of counted votes by precinct in external (removable)
√
storage device?
B.

DOST Technical Tests Flunked by the Automated Counting Machines

Let us now move to the second subtopic, which deals with the substantive
issue: the ACM’s failure to pass the tests of the Department of Science and
Technology (DOST).
8. Data stored in external media is encrypted? √

After respondent "consortium" and the other bidder, TIM, had submitted
their respective bids on March 10, 2003, the Comelec’s BAC -- through its
Technical Working Group (TWG) and the DOST -- evaluated their technical
proposals. Requirements that were highly technical in nature and that
required the use of certain equipment in the evaluation process
9. Physical were
key or similar device allows, limits, or restricts operation of the
referred to the DOST for testing. The Department reported thus: √ √
machine?

TEST RESULTS MATRIX47

10. CPU speed is at least 400mHz? √
Technical Evaluation of Automated Counting Machine

MEGA-PACIFIC TOTAL
CONSORTIUM INFORMATION
MENTS 11. Port to allow use of dot-matrix printers?
MANAGEMENT √ √

YES 12. NO
Generates printouts of the
YESelection
NOreturns in a format specified by the
COMELEC?

hine have an accuracy rating of at least 99.995 percent √ √

Generates printouts √ √

nmental condition √ √
In format specified by COMELEC √

ironmental conditions √ √
13. Prints election returns without any loss of data during generation of
√ √
such report?
onmental conditions

14. Generates an audit trail of the counting machine, both hard copy and
cords and reports the date and time of the start and end of soft copy?
√ √
ts per precinct?

Hard copy √ √
returns without any loss of date during generation of such
√ √

Soft copy √
 23

particular
requirement
needs
further
verification

√
23. Does the system consolidate results from all precincts in the
ty/Municipal Canvassing System consolidate results from provincial/district/ national using theNote:
data storage
This device from different √
in it using the encrypted soft copy of the data generated by √ levels of consolidation? particular
chine and stored on the removable data storage device? requirement
needs
further
verification

ty/Municipal Canvassing System consolidate results from √

24. Is the system 100% accurate? Note: This √
in it using the encrypted soft copy of the data generated by
chine and transmitted through an electronic transmission particular
Note: This particular
requirement
requirement needs
needs
further verification
further
verification

stem output a Zero City/Municipal Canvass Report, which 25. Is the Program able to detect previously downloaded precinct results
√
ection day prior to the conduct of the actual canvass and prevent these from being inputtedNote: Thisthe System?
again into
√ particular
hows that all totals for all the votes for all the candidates
ation, are indeed zero or null? requirement
needs
further
verification
26. The System is able to print the specified reports and the audit trail
√
without any loss of data during generation of the abovementioned reports?

system consolidate results from all precincts in the Note: This

Prints specified reports √
using the data storage device coming from the counting √ particular
requirement
needs
further
verification
Audit Trail √
√

Note: This
ne 100% accurate? √ particular
requirement
needs
further
verification
27. Can the results of the provincial/district/national consolidation be stored
√
in a data storage device? √

am able to detect previously downloaded precinct results Note: This

√ particular
se from being inputted again into the System?
requirement
needs
further
According to respondents, it was only after the TWG and the DOST had
verification
conducted their separate tests and submitted their respective reports that the
BAC, on the basis of these reports formulated its
is able to print the specified reports and the audit trail comments/recommendations on the bids of the consortium and TIM.
of data during generation of the above-mentioned reports?

The BAC, in its Report dated April 21, 2003, recommended that the Phase II
eports √ √
project involving the acquisition of automated counting machines be awarded
to MPEI. It said:

√ √
"After incisive analysis of the technical reports of the DOST and the
Technical Working Group for Phase II – Automated Counting Machine, the
BAC considers
√ adaptability to advances in modern technology to ensure an
ult of the city/municipal consolidation be stored in a data effective and efficient method, as well as the security and integrity of the
√
system.
Note: This
particular
 24
"The results of the evaluation conducted by the TWG and that of the DOST
(14 April 2003 report), would show the apparent advantage of Mega-Pacific
over the other competitor, TIM.
"The BAC further noted that both Mega-Pacific and TIM obtained some
‘failed marks’ in the technical evaluation. In general, the ‘failed marks’ of
Total Information Management as enumerated above affect the counting
machine itself which are material in nature, constituting non-compliance to
the RFP. On the other hand, the ‘failed marks’ of Mega-Pacific are mere
formalities on certain documentary requirements which the BAC may waive
as clearly indicated in the Invitation to Bid.
"In the DOST test, TIM obtained 12 failed marks and mostly attributed to the
counting machine itself as stated earlier. These are requirements of the
RFP and therefore the BAC cannot disregard the same.
"Mega-Pacific failed in 8 items however these are mostly on the software
which can be corrected by reprogramming the software and therefore can
be readily corrected.
"The BAC verbally inquired from DOST on the status of the retest of the
counting machines of the TIM and was informed that the report will be
forthcoming after the holy week. The BAC was informed that the retest is on
a different parameters they’re being two different machines being tested.
One purposely to test if previously read ballots will be read again and the
other for the other features such as two sided ballots.
"The said machine and the software therefore may not be considered the
same machine and program as submitted in the Technical proposal and
therefore may be considered an enhancement of the original proposal.
"Advance information relayed to the BAC as of 1:40 PM of 15 April 2003 by
Executive Director Ronaldo T. Viloria of DOST is that the result of the test in
the two counting machines of TIM contains substantial errors that may lead
to the failure of these machines based on the specific items of the RFP that
DOST has to certify.
OPENING OF FINANCIAL BIDS
"The BAC on 15 April 2003, after notifying the concerned bidders opened
the financial bids in their presence and the results were as follows:
Mega-Pacific:
Option 1 – Outright purchase: Bid Price if Php1,248,949,088.00
Option 2 – Lease option:
70% Down payment of cost of hardware or Php642,755,757.07
Remainder payable over 50 months or a total of Php642,755,757.07
Discount rate of 15% p.a. or 1.2532% per month.
Total Number of Automated Counting Machine – 1,769 ACMs (Nationwide)
TIM:
Total Bid Price – Php1,297,860,560.00
Total Number of Automated Counting Machine – 2,272 ACMs (Mindanao
and NCR only)
"Premises considered, it appears that the bid of Mega Pacific is the lowest
calculated responsive bid, and therefore, the Bids and Awards Committee
(BAC) recommends that the Phase II project re Automated Counting
Machine be awarded to Mega Pacific eSolutions, Inc."48
The BAC, however, also stated on page 4 of its Report: "Based on the 14
April 2003 report (Table 6) of the DOST, it appears that both Mega-Pacific
and TIM (Total Information Management Corporation) failed to meet some of
the requirements. Below is a comparative presentation of the requirements
wherein Mega-Pacific or TIM or both of them failed: x x x." What followed was
a list of "key requirements," referring to technical requirements, and an
indication of which of the two bidders had failed to meet them.
Failure to Meet the Required Accuracy Rating
The first of the key requirements was that the counting machines were to
have an accuracy rating of at least 99.9995 percent. The BAC Report
indicates that both Mega Pacific and TIM failed to meet this standard.
The key requirement of accuracy rating happens to be part and parcel of the
Comelec’s Request for Proposal (RFP). The RFP, on page 26, even states
that the ballot counting machines and ballot counting software "must have an
accuracy rating of 99.9995% (not merely 99.995%) or better as certified by a
reliable independent testing agency."
When questioned on this matter during the Oral Argument, Commissioner
Borra tried to wash his hands by claiming that the required accuracy rating of
99.9995 percent had been set by a private sector group in tandem with
Comelec. He added that the Commission had merely adopted the accuracy
rating as part of the group’s recommended bid requirements, which it had not
bothered to amend even after being advised by DOST that such standard
was unachievable. This excuse, however, does not in any way lessen
Comelec’s responsibility to adhere to its own published bidding rules, as well
as to see to it that the consortium indeed meets the accuracy
standard. Whichever accuracy rating is the right standard -- whether 99.995
or 99.9995 percent -- the fact remains that the machines of the so-called
"consortium" failed to even reach the lesser of the two. On this basis alone, it
ought to have been disqualified and its bid rejected outright.
At this point, the Court stresses that the essence of public bidding is violated
by the practice of requiring very high standards or unrealistic specifications
that cannot be met -- like the 99.9995 percent accuracy rating in this case --
only to water them down after the bid has been award. Such scheme, which
discourages the entry of prospective bona fide bidders, is in fact a sure
indication of fraud in the bidding, designed to eliminate fair competition.
Certainly, if no bidder meets the mandatory requirements, standards or
specifications, then no award should be made and a failed bidding declared.
Failure of Software to Detect Previously Downloaded Data
Furthermore, on page 6 of the BAC Report, it appears that the "consortium"
as well as TIM failed to meet another key requirement -- for the counting
machine’s software program to be able to detect previously downloaded
precinct results and to prevent these from being entered again into the
counting machine. This same deficiency on the part of both bidders
reappears on page 7 of the BAC Report, as a result of the recurrence of their
failure to meet the said key requirement.
That the ability to detect previously downloaded data at different canvassing
or consolidation levels is deemed of utmost importance can be seen from the
fact that it is repeated three times in the RFP. On page 30 thereof, we find the
requirement that the city/municipal canvassing system software must be able
to detect previously downloaded precinct results and prevent these from
being "inputted" again into the system. Again, on page 32 of the RFP, we
read that the provincial/district canvassing system software must be able to
detect previously downloaded city/municipal results and prevent these from
being "inputted" again into the system. And once more, on page 35 of the
RFP, we find the requirement that the national canvassing system software
must be able to detect previously downloaded provincial/district results and
prevent these from being "inputted" again into the system.
Once again, though, Comelec chose to ignore this crucial deficiency, which
should have been a cause for the gravest concern. Come May 2004,
unscrupulous persons may take advantage of and exploit such deficiency by
repeatedly downloading and feeding into the computers results favorable to a
particular candidate or candidates. We are thus confronted with the grim
prospect of election fraud on a massive scale by means of just a few
key strokes. The marvels and woes of the electronic age!
 25
Inability to Print the Audit Trail
But that grim prospect is not all. The BAC Report, on pages 6 and 7,
indicate that the ACMs of both bidders were unable to print the audit
trail without any loss of data. In the case of MPC, the audit trail system was
"not yet incorporated" into its ACMs.
This particular deficiency is significant, not only to this bidding but to the
cause of free and credible elections. The purpose of requiring audit trails is
to enable Comelec to trace and verify the identities of the ACM operators
responsible for data entry and downloading, as well as the times when the
various data were downloaded into the canvassing system, in order to
forestall fraud and to identify the perpetrators.
Thus, the RFP on page 27 states that the ballot counting machines and
ballot counting software must print an audit trail of all machine operations
for documentation and verification purposes. Furthermore, the audit trail
must be stored on the internal storage device and be available on demand
for future printing and verifying. On pages 30-31, the RFP also requires that
the city/municipal canvassing system software be able to print an audit trail
of the canvassing operations, including therein such data as the date and
time the canvassing program was started, the log-in of the authorized users
(the identity of the machine operators), the date and time the canvass data
were downloaded into the canvassing system, and so on and so forth. On
page 33 of the RFP, we find the same audit trail requirement with respect to
the provincial/district canvassing system software; and again on pages
35-36 thereof, the same audit trail requirement with respect to
the national canvassing system software.
That this requirement for printing audit trails is not to be lightly brushed
aside by the BAC or Comelec itself as a mere formality or technicality can
be readily gleaned from the provisions of Section 7 of RA 8436, which
authorizes the Commission to use an automated system for elections.
The said provision which respondents have quoted several times, provides
that ACMs are to possess certain features divided into two classes: those
that the statute itself considers mandatory and other features or capabilities
that the law deems optional. Among those considered mandatory are
"provisions for audit trails"! Section 7 reads as follows: "The
System shall contain the following features: (a) use of appropriate ballots;
(b) stand-alone machine which can count votes and an automated system
which can consolidate the results immediately; (c) with provisions for
audit trails; (d) minimum human intervention; and (e) adequate
safeguard/security measures." (Italics and emphases supplied.)
In brief, respondents cannot deny that the provision requiring audit trails is
indeed mandatory, considering the wording of Section 7 of RA 8436.
Neither can Respondent Comelec deny that it has relied on the BAC Report,
which indicates that the machines or the software was deficient in that
respect. And yet, the Commission simply disregarded this shortcoming and
awarded the Contract to private respondent, thereby violating the very law it
was supposed to implement.
C.
Inadequacy of Post Facto Remedial Measures
Respondents argue that the deficiencies relating to the detection of
previously downloaded data, as well as provisions for audit trails, are mere
shortcomings or minor deficiencies in software or programming, which can
be rectified. Perhaps Comelec simply relied upon the BAC Report, which
states on page 8 thereof that "Mega Pacific failed in 8 items[;] however
these are mostly on the software which can be corrected by
re-programming x x x and therefore can be readily corrected."
The undersigned ponente’s questions, some of which were addressed to
Commissioner Borra during the Oral Argument, remain unanswered to this
day. First of all, who made the determination that the eight "fail" marks of
Mega Pacific were on account of the software -- was it DOST or TWG? How
can we be sure these failures were not the results of machine defects? How
was it determined that the software could actually be re-programmed and
thereby rectified? Did a qualified technical expert read and analyze
the source code49 for the programs and conclude that these could be saved
and remedied? (Such determination cannot be done by any other means
save by the examination and analysis of the source code.)
Who was this qualified technical expert? When did he carry out the study?
Did he prepare a written report on his findings? Or did the Comelec just make
a wild guess? It does not follow that all defects in software programs can be
rectified, and the programs saved. In the information technology sector, it is
common knowledge that there are many badly written programs, with
significant programming errors written into them; hence it does not make
economic sense to try to correct the programs; instead, programmers simply
abandon them and just start from scratch. There’s no telling if any of these
programs is unrectifiable, unless a qualified programmer reads the source
code.
And if indeed a qualified expert reviewed the source code, did he also
determine how much work would be needed to rectify the programs? And
how much time and money would be spent for that effort? Who would carry
out the work? After the rectification process, who would ascertain and how
would it be ascertained that the programs have indeed been properly rectified,
and that they would work properly thereafter? And of course, the most
important question to ask: could the rectification be done in time for the
elections in 2004?
Clearly, none of the respondents bothered to think the matter through.
Comelec simply took the word of the BAC as gospel truth, without even
bothering to inquire from DOST whether it was true that the deficiencies
noted could possibly be remedied by re-programming the software.
Apparently, Comelec did not care about the software, but focused only on
purchasing the machines.
What really adds to the Court’s dismay is the admission made by
Commissioner Borra during the Oral Argument that the software currently
being used by Comelec was merely the "demo" version, inasmuch as the
final version that would actually be used in the elections was still being
developed and had not yet been finalized.
It is not clear when the final version of the software would be ready for testing
and deployment. It seems to the Court that Comelec is just keeping its fingers
crossed and hoping the final product would work. Is there a "Plan B" in case it
does not? Who knows? But all these software programs are part and parcel
of the bidding and the Contract awarded to the Consortium. Why is it that the
machines are already being brought in and paid for, when there is as yet no
way of knowing if the final version of the software would be able to run them
properly, as well as canvass and consolidate the results in the manner
required?
The counting machines, as well as the canvassing system, will never work
properly without the correct software programs. There is an old adage that is
still valid to this day: "Garbage in, garbage out." No matter how powerful,
advanced and sophisticated the computers and the servers are, if the
software being utilized is defective or has been compromised, the results will
be no better than garbage. And to think that what is at stake here is the 2004
national elections -- the very basis of our democratic life.
Correction of Defects?
To their Memorandum, public respondents proudly appended 19
Certifications issued by DOST declaring that some 285 counting machines
had been tested and had passed the acceptance testing conducted by the
Department on October 8-18, 2003. Among those tested were some
machines that had failed previous tests, but had undergone adjustments and
thus passed re-testing.
Unfortunately, the Certifications from DOST fail to divulge in what manner
and by what standards or criteria the condition, performance and/or
readiness of the machines were re-evaluated and re-appraised and
thereafter given the passing mark. Apart from that fact, the remedial efforts of
respondents were, not surprisingly, apparently focused again on the
machines -- the hardware. Nothing was said or done about the software -- the
deficiencies as to detection and prevention of downloading and entering
previously downloaded data, as well as the capability to print an audit
trail. No matter how many times the machines were tested and re-tested, if
nothing was done about the programming defects and deficiencies, the same
 26
danger of massive electoral fraud remains. As anyone who has a modicum
of knowledge of computers would say, "That’s elementary!"
And only last December 5, 2003, an Inq7.net news report quoted the
Comelec chair as saying that the new automated poll system would be used
nationwide in May 2004, even as the software for the system remained
unfinished. It also reported that a certain Titus Manuel of the Philippine
Computer Society, which was helping Comelec test the hardware and
software, said that the software for the counting still had to be submitted on
December 15, while the software for the canvassing was due in early
January.
Even as Comelec continues making payments for the ACMs, we keep
asking ourselves: who is going to ensure that the software would be tested
and would work properly?
At any rate, the re-testing of the machines and/or the 100 percent testing of
all machines (testing of every single unit) would not serve to eradicate the
grave abuse of discretion already committed by Comelec when it awarded
the Contract on April 15, 2003, despite the obvious and admitted flaws in
the bidding process, the failure of the "winning bidder" to qualify, and the
inability of the ACMs and the intended software to meet the bid
requirements and rules.
Comelec’s Latest "Assurances" Are Unpersuasive
Even the latest pleadings filed by Comelec do not serve to allay our
apprehensions. They merely affirm and compound the serious violations of
law and gravely abusive acts it has committed. Let us examine them.
The Resolution issued by this Court on December 9, 2003 required
respondents to inform it as to the number of ACMs delivered and paid for,
as well as the total payment made to date for the purchase thereof. They
were likewise instructed to submit a certification from the DOST attesting to
the number of ACMs tested, the number found to be defective; and
"whether the reprogrammed software has been tested and found to have
complied with the requirements under Republic Act No. 8436."50
In its "Partial Compliance and Manifestation" dated December 29, 2003,
Comelec informed the Court that 1,991 ACMs had already been delivered
to the Commission as of that date. It further certified that it had already paid
the supplier the sum of P849,167,697.41, which corresponded to 1,973
ACM units that had passed the acceptance testing procedures conducted
by the MIRDC-DOST51 and which had therefore been accepted by the poll
body.
In the same submission, for the very first time, Comelec also disclosed to
the Court the following:
"The Automated Counting and Canvassing Project involves not only the
manufacturing of the ACM hardware but also the development of three (3)
types of software, which are intended for use in the following:
1. Evaluation of Technical Bids
2. Testing and Acceptance Procedures
3. Election Day Use."
Purchase of the First Type of Software Without Evaluation
In other words, the first type of software was to be developed solely for the
purpose of enabling the evaluation of the bidder’s technical bid. Comelec
explained thus: "In addition to the presentation of the ACM hardware, the
bidders were required to develop a ‘base’ software program that will enable
the ACM to function properly. Since the software program utilized during the
evaluation of bids is not the actual software program to be employed on
election day, there being two (2) other types of software program that will
still have to be developed and thoroughly tested prior to actual election day
use, defects in the ‘base’ software that can be readily corrected by
reprogramming are considered minor in nature, and may therefore be
waived."
In short, Comelec claims that it evaluated the bids and made the decision to
award the Contract to the "winning" bidder partly on the basis of the operation
of the ACMs running a "base" software. That software was therefore nothing
but a sample or "demo" software, which would not be the actual one that
would be used on election day. Keeping in mind that the Contract involves
the acquisition of not just the ACMs or the hardware, but also the software
that would run them, it is now even clearer that the Contract was awarded
without Comelec having seen, much less evaluated, the final product -- the
software that would finally be utilized come election day. (Not even the
"near-final" product, for that matter).
What then was the point of conducting the bidding, when the software that
was the subject of the Contract was still to be created and could conceivably
undergo innumerable changes before being considered as being in final form?
And that is not all!
No Explanation for Lapses in the Second Type of Software
The second phase, allegedly involving the second type of software, is simply
denominated "Testing and Acceptance Procedures." As best as we can
construe, Comelec is claiming that this second type of software is also to be
developed and delivered by the supplier in connection with the "testing and
acceptance" phase of the acquisition process. The previous pleadings,
though -- including the DOST reports submitted to this Court -- have not
heretofore mentioned any statement, allegation or representation to the
effect that a particular set of software was to be developed and/or delivered
by the supplier in connection with the testing and acceptance of delivered
ACMs.
What the records do show is that the imported ACMs were subjected to the
testing and acceptance process conducted by the DOST. Since the initial
batch delivered included a high percentage of machines that had failed the
tests, Comelec asked the DOST to conduct a 100 percent testing; that is, to
test every single one of the ACMs delivered. Among the machines tested on
October 8 to 18, 2003, were some units that had failed previous tests but had
subsequently been re-tested and had passed. To repeat, however, until now,
there has never been any mention of a second set or type of software
pertaining to the testing and acceptance process.
In any event, apart from making that misplaced and uncorroborated claim,
Comelec in the same submission also professes (in response to the
concerns expressed by this Court) that the reprogrammed software has
been tested and found to have complied with the requirements of RA
8436. It reasoned thus: "Since the software program is an inherent element in
the automated counting system, the certification issued by the MIRDC-DOST
that one thousand nine hundred seventy-three (1,973) units passed the
acceptance test procedures is an official recognition by the MIRDC-DOST
that the software component of the automated election system, which has
been reprogrammed to comply with the provisions of Republic Act No. 8436
as prescribed in the Ad Hoc Technical Evaluation Committee’s ACM Testing
and Acceptance Manual, has passed the MIRDC-DOST tests."
The facts do not support this sweeping statement of Comelec. A scrutiny of
the MIRDC-DOST letter dated December 15, 2003,52 which it relied upon,
does not justify its grand conclusion. For clarity’s sake, we quote in full the
letter-certification, as follows:
"15 December 2003
"HON. RESURRECCION Z. BORRA
Commissioner-in-Charge
Phase II, Modernization Project
Commission on Elections
Intramuros, Manila
 27
Attention: Atty. Jose M. Tolentino, Jr.
Project Director
"Dear Commissioner Borra:
"We are pleased to submit 11 DOST Test Certifications representing 11 lots
and covering 158 units of automated counting machines (ACMs) that we
have tested from 02-12 December 2003.
"To date, we have tested all the 1,991 units of ACMs, broken down as follow:
(sic)
1st batch - 30 units 4th batch - 438 units
2nd batch - 288 units 5th batch - 438 units
3rd batch - 414 units 6th batch - 383 units
"It should be noted that a total of 18 units have failed the test. Out of these
18 units, only one (1) unit has failed the retest.
"Thank you and we hope you will find everything in order.
"Very truly yours,
"ROLANDO T. VILORIA, CESO III
Executive Director cum
Chairman, DOST-Technical Evaluation Committee"
Even a cursory glance at the foregoing letter shows that it is completely
bereft of anything that would remotely support Comelec’s contention that
the "software component of the automated election system x x x has been
reprogrammed to comply with" RA 8436, and "has passed the
MIRDC-DOST tests." There is no mention at all of any software
reprogramming. If the MIRDC-DOST had indeed undertaken the supposed
reprogramming and the process turned out to be successful, that agency
would have proudly trumpeted its singular achievement.
How Comelec came to believe that such reprogramming had been
undertaken is unclear. In any event, the Commission is not forthright and
candid with the factual details. If reprogramming has been done, who
performed it and when? What exactly did the process involve? How can we
be assured that it was properly performed? Since the facts attendant to the
alleged reprogramming are still shrouded in mystery, the Court cannot give
any weight to Comelec’s bare allegations.
The fact that a total of 1,973 of the machines has ultimately passed the
MIRDC-DOST tests does not by itself serve as an endorsement of the
soundness of the software program, much less as a proof that it has been
reprogrammed. In the first place, nothing on record shows that the tests and
re-tests conducted on the machines were intended to address the serious
deficiencies noted earlier. As a matter of fact, the MIRDC-DOST letter does
not even indicate what kinds of tests or re-tests were conducted, their exact
nature and scope, and the specific objectives thereof. 53The absence of
relevant supporting documents, combined with the utter vagueness of the
letter, certainly fails to inspire belief or to justify the expansive confidence
displayed by Comelec. In any event, it goes without saying that remedial
measures such as the alleged reprogramming cannot in any way mitigate
the grave abuse of discretion already committed as early as April 15, 2003.
Rationale of Public Bidding Negated
by the Third Type of Software
Respondent Comelec tries to assuage this Court’s anxiety in these words:
"The reprogrammed software that has already passed the requirements of
Republic Act No. 8436 during the MIRDC-DOST testing and acceptance
procedures will require further customization since the following additional
elements, among other things, will have to be considered before the final
software can be used on election day: 1. Final Certified List of Candidates x x
x 2. Project of Precincts x x x 3. Official Ballot Design and Security Features x
x x 4. Encryption, digital certificates and digital signatures x x x. The certified
list of candidates for national elective positions will be finalized on or before
23 January 2004 while the final list of projects of precincts will be prepared
also on the same date. Once all the above elements are incorporated in the
software program, the Test Certification Group created by the Ad Hoc
Technical Evaluation Committee will conduct meticulous testing of the final
software before the same can be used on election day. In addition to the
testing to be conducted by said Test Certification Group, the Comelec will
conduct mock elections in selected areas nationwide not only for purposes of
public information but also to further test the final election day program.
Public respondent Comelec, therefore, requests that it be given up to 16
February 2004 to comply with this requirement."
The foregoing passage shows the imprudent approach adopted by Comelec
in the bidding and acquisition process. The Commission says that before the
software can be utilized on election day, it will require "customization"
through addition of data -- like the list of candidates, project of precincts, and
so on. And inasmuch as such data will become available only in January
2004 anyway, there is therefore no perceived need on Comelec’s part to rush
the supplier into producing the final (or near-final) version of the software
before that time. In any case, Comelec argues that the software needed for
the electoral exercise can be continuously developed, tested, adjusted and
perfected, practically all the way up to election day, at the same time that the
Commission is undertaking all the other distinct and diverse activities
pertinent to the elections.
Given such a frame of mind, it is no wonder that Comelec paid little attention
to the counting and canvassing software during the entire bidding process,
which took place in February-March 2003. Granted that the software was
defective, could not detect and prevent the re-use of previously downloaded
data or produce the audit trail -- aside from its other shortcomings --
nevertheless, all those deficiencies could still be corrected down the road. At
any rate, the software used for bidding purposes would not be the same one
that will be used on election day, so why pay any attention to its defects? Or
to the Comelec’s own bidding rules for that matter?
Clearly, such jumbled ratiocinations completely negate the rationale
underlying the bidding process mandated by law.
At the very outset, the Court has explained that Comelec flagrantly violated
the public policy on public biddings (1) by allowing MPC/MPEI to participate
in the bidding even though it was not qualified to do so; and (2) by eventually
awarding the Contract to MPC/MPEI. Now, with the latest explanation given
by Comelec, it is clear that the Commission further desecrated the law on
public bidding by permitting the winning bidder to change and alter the
subject of the Contract (the software), in effect allowing a substantive
amendment without public bidding.
This stance is contrary to settled jurisprudence requiring the strict application
of pertinent rules, regulations and guidelines for public bidding for the
purpose of placing each bidder, actual or potential, on the same footing. The
essence of public bidding is, after all, an opportunity for fair competition, and
a fair basis for the precise comparison of bids. In common parlance, public
bidding aims to "level the playing field." That means each bidder must bid
under the same conditions; and be subject to the same guidelines,
requirements and limitations, so that the best offer or lowest bid may be
determined, all other things being equal.
Thus, it is contrary to the very concept of public bidding to permit a variance
between the conditions under which bids are invited and those under which
proposals are submitted and approved; or, as in this case, the conditions
under which the bid is won and those under which the awarded Contract will
be complied with. The substantive amendment of the contract bidded out,
without any public bidding -- after the bidding process had been concluded --
is violative of the public policy on public biddings, as well as the spirit and
intent of RA 8436. The whole point in going through the public bidding
exercise was completely lost. The very rationale of public bidding was totally
subverted by the Commission.
 28
From another perspective, the Comelec approach also fails to make sense. For these reasons, the Court finds it totally unacceptable and unconscionable
Granted that, before election day, the software would still have to be to place its imprimatur on this void and illegal transaction that seriously
customized to each precinct, municipality, city, district, and so on, there still endangers the breakdown of our electoral system. For this Court to cop-out
was nothing at all to prevent Comelec from requiring prospective and to close its eyes to these illegal transactions, while convenient, would be
suppliers/bidders to produce, at the very start of the bidding process, the to abandon its constitutional duty of safeguarding public interest.
"next-to-final" versions of the software (the best software the suppliers had)
-- pre-tested and ready to be customized to the final list of candidates and
As a necessary consequence of such nullity and illegality, the purchase of
project of precincts, among others, and ready to be deployed thereafter.
the machines and all appurtenances thereto including the
The satisfaction of such requirement would probably have provided far
still-to-be-produced (or in Comelec’s words, to be "reprogrammed") software,
better bases for evaluation and selection, as between suppliers, than the
as well as all the payments made therefor, have no basis whatsoever in law.
so-called demo software.Respondents contend that the bidding suppliers’
The public funds expended pursuant to the void Resolution and Contract
counting machines were previously used in at least one political exercise
must therefore be recovered from the payees and/or from the persons who
with no less than 20 million voters. If so, it stands to reason that the
made possible the illegal disbursements, without prejudice to possible
software used in that past electoral exercise would probably still be
criminal prosecutions against them.
available and, in all likelihood, could have been adopted for use in this
instance. Paying for machines and software of that category (already tried
and proven in actual elections and ready to be adopted for use) would Furthermore, Comelec and its officials concerned must bear full responsibility
definitely make more sense than paying the same hundreds of millions of for the failed bidding and award, and held accountable for the electoral mess
pesos for demo software and empty promises of usable programs in the wrought by their grave abuse of discretion in the performance of their
future. functions. The State, of course, is not bound by the mistakes and illegalities
of its agents and servants.
But there is still another gut-level reason why the approach taken by
Comelec is reprehensible. It rides on the perilous assumption that nothing True, our country needs to transcend our slow, manual and archaic electoral
would go wrong; and that, come election day, the Commission and the process. But before it can do so, it must first have a diligent and competent
supplier would have developed, adjusted and "re-programmed" the electoral agency that can properly and prudently implement a well-conceived
software to the point where the automated system could function as automated election system.
envisioned. But what if such optimistic projection does not materialize?
What if, despite all their herculean efforts, the software now being hurriedly
At bottom, before the country can hope to have a speedy and fraud-free
developed and tested for the automated system performs dismally and
automated election, it must first be able to procure the proper computerized
inaccurately or, worse, is hacked and/or manipulated?54 What then will we
hardware and software legally, based on a transparent and valid system of
do with all the machines and defective software already paid for in the
public bidding. As in any democratic system, the ultimate goal of automating
amount of P849 million of our tax money? Even more important, what will
elections must be achieved by a legal, valid and above-board process of
happen to our country in case of failure of the automation?
acquiring the necessary tools and skills therefor. Though the Philippines
needs an automated electoral process, it cannot accept just any system
The Court cannot grant the plea of Comelec that it be given until February shoved into its bosom through improper and illegal methods. As the saying
16, 2004 to be able to submit a "certification relative to the additional goes, the end never justifies the means. Penumbral contracting will not
elements of the software that will be customized," because for us to do so produce enlightened results.
would unnecessarily delay the resolution of this case and would just give
the poll body an unwarranted excuse to postpone the 2004 elections. On
WHEREFORE, the Petition is GRANTED. The Court hereby
the other hand, because such certification will not cure the gravely abusive
declares NULL and VOID Comelec Resolution No. 6074 awarding the
actions complained of by petitioners, it will be utterly useless.
contract for Phase II of the AES to Mega Pacific Consortium (MPC). Also
declared null and void is the subject Contract executed between Comelec
Is this Court being overly pessimistic and perhaps even engaging in and Mega Pacific eSolutions (MPEI).55 Comelec is further ORDERED to
speculation? Hardly. Rather, the Court holds that Comelec should not have refrain from implementing any other contract or agreement entered into with
gambled on the unrealistic optimism that the supplier’s software regard to this project.
development efforts would turn out well. The Commission should have
adopted a much more prudent and judicious approach to ensure the
Let a copy of this Decision be furnished the Office of the Ombudsman which
delivery of tried and tested software, and readied alternative courses of
shall determine the criminal liability, if any, of the public officials (and
action in case of failure. Considering that the nation’s future is at stake here,
conspiring private individuals, if any) involved in the subject Resolution and
it should have done no less.
Contract. Let the Office of the Solicitor General also take measures to protect
the government and vindicate public interest from the ill effects of the illegal
Epilogue disbursements of public funds made by reason of the void Resolution and
Contract.
Once again, the Court finds itself at the crossroads of our nation’s history.
At stake in this controversy is not just the business of a computer supplier, SO ORDERED.
or a questionable proclamation by Comelec of one or more public officials.
Neither is it about whether this country should switch from the manual to the
Carpio, Austria-Martinez, Carpio-Morales, and Callejo, Sr., JJ., concur.
automated system of counting and canvassing votes. At its core is the
Davide, C.J., Jr., Vitug, Ynares-Santiago, JJ., see separate opinion.
ability and capacity of the Commission on Elections to perform properly,
Puno, J., concur, and also joins the opinion of J. Ynares-Santiago.
legally and prudently its legal mandate to implement the transition from
Quisumbing, J., in the result.
manual to automated elections.
Sandoval-Gutierrez, J., see concurring opinion.
Corona, Azcuna, JJ., joins the dissent of J. Tinga.
Unfortunately, Comelec has failed to measure up to this historic task. As Tinga, J., pls. see dissenting opinion.
stated at the start of this Decision, Comelec has not merely gravely abused
its discretion in awarding the Contract for the automation of the counting
and canvassing of the ballots. It has also put at grave risk the holding of
credible and peaceful elections by shoddily accepting electronic hardware
and software that admittedly failed to pass legally mandated technical Footnotes
requirements. Inadequate as they are, the remedies it proffers post facto do
not cure the grave abuse of discretion it already committed (1) on April 15,
2003, when it illegally made the award; and (2) "sometime" in May 2003
when it executed the Contract for the purchase of defective machines and
non-existent software from a non-eligible bidder.

G.R. No. 161265 February 24, 2004


LABAN NG DEMOKRATIKONG PILIPINO, represented by its Chairman
EDGARDO J. ANGARA
vs.
THE COMMISION ON ELECTIONS and AGAPITO A. AQUINO
TINGA, J.:
The Bible tells the story of how two women came to King Solomon to decide
who among them is the baby’s true mother. King Solomon, in his legendary
wisdom, awarded the baby to the woman who gave up her claim after he
threatened to split the baby into two.
It is fortunate that the two women did not ask the Commission on Elections
(COMELEC) to decide the baby’s fate; otherwise, it would have cut the
baby in half. For that is what the COMELEC exactly did in this case.
On December 8, 2003, the General Counsel of the Laban ng
Demokratikong Pilipino (LDP), a registered political party, informed the
COMELEC by way of Manifestation that only the Party Chairman, Senator
Edgardo J. Angara, or his authorized representative may endorse the
certificate of candidacy of the party’s official candidates. The same
Manifestation stated that Sen. Angara had placed the LDP Secretary
General, Representative Agapito A. Aquino, on "indefinite forced leave." In
the meantime, Ambassador Enrique A. Zaldivar was designated Acting
Secretary General. The Manifestation concluded with this prayer:
A. The Honorable Commission recognizes [sic] only those Certificates of
Candidacy to which are attached Certificates of Nomination executed by
LDP Party Chairman Edgardo J. Angara or by such other officers of the
LDP whom he may authorize in writing, and whose written authorizations
shall be deposited with the Honorable Commission by the LDP General
Counsel.
B. The Honorable Commission declares [sic] as a nullity, denies [sic] due
course or cancels [sic] all Certificates of Candidacy not endorsed by LDP
Party Chairman Angara or by such other LDP officials as may be authorized
by him.
C. The Honorable Commission takes [sic] note of the designation of
Ambassador Enrique "Ike" A. Zaldivar as Acting Secretary General of the
LDP, and for the Honorable Commission to honor and recognize the official
acts, to the exclusion of everyone, of Ambassador Zaldivar for and in behalf
of the LDP as Secretary General.1
On December 16, 2003, Rep. Aquino filed his Comment, contending that
the Party Chairman does not have the authority to impose disciplinary
sanctions on the Secretary General. As the Manifestation filed by the LDP
General Counsel has no basis, Rep. Aquino asked the COMELEC to
disregard the same.
On December 17, 2003, the parties agreed to file a joint manifestation
pending which the proceedings were deemed suspended. On December 22,
2003, however, only the LDP General Counsel filed an Urgent
Manifestationreiterating the contents of the December
2003 Manifestation. The COMELEC also received a Letter from Rep.
Aquino stating that the parties were unable to arrive at a joint manifestation.
The next day, the LDP General Counsel filed a Second Urgent
Manifestation disputing newspaper accounts that Rep. Aquino had
suspended Sen. Angara as Party Chairman.
On December 26, 2003, the COMELEC issued an Order requiring the
parties to file a verified petition. It turned out that, two days before, Sen.
Angara had submitted a verified Petition, in essence, reiterating the
contents of its previous Manifestations. Attached to the Petition was a
Resolution2 adopted by the LDP National Executive Council, stating:
WHEREAS, on September 25, 2003, the National Executive Council of the
Laban ng Demokratikong Pilipino (LDP) convened and unanimously passed
29
a resolution granting full authority to Party Chairman Edgardo J. Angara to
enter, negotiate and conclude a coalition agreement with other like-minded
opposition parties, aggrupations and interest groups with the sole purpose of
uniting the political opposition and fielding a unity ticket for the May 10, 2004
elections;
WHEREAS, on December 3, 2003, the LDP, together with the Puwersa ng
Masang Pilipino (PMP) and the Partido Demokratiko ng Pilipinas - LABAN
(PDP-LABAN) forged a coalition to form the Koalisyon ng Nagkakaisang
Pilipino(KNP);
WHEREAS, the Executive Committee of the KNP subsequently adopted its
resolution entitled: "Resolution Choosing Mr. Fernando Poe, Jr. as the
Standard Bearer of the Koalisyon ng Nagkakaisang Pilipino (KNP) for
President of the Republic of the Philippines in the May 10, 2004 National
Elections";
....
WHEREAS, the process of unification of the political opposition and the
actions taken in connection therewith by Chairman Angara and by other
governing bodies of the LDP required the taking of immediate and forceful
action by them to preserve and protect the integrity, credibility, unity and
solidarity of the LDP, and ensure the attainment of unification of the political
opposition;
WHEREAS, such immediate and forceful action include those that have to do
with pre-emptive efforts to diffuse the chaos, confusion and disunity projected
by the pronouncements and acts of some officers and members to the
general membership of the LDP and the electorate, such as the one taken by
the Regional Committee for Region VI (Western Visayas) on December 6,
2003; the enforcement of order in the LDP through the voice of a central
leadership in command in an otherwise extraordinary and emergency
situation, such as the one taken by Party Chairman Angara on December 6,
2003; the filing of the Manifestation with the COMELEC on the matter of the
authorized signatories for the nominations and, the adoption of resolutions by
the regional committees affirming their trust and confidence in Chairman
Angara, and authorizing him to choose the presidential standard bearer for
the May 10, 2004 elections; NOW THEREFORE, BE IT
RESOLVED, AS IT IS HEREBY RESOLVED, By the National Executive
Council, to ratify and confirm the Covenant of National Unity, the Declaration
of Unity entered into by Party Chairman Edgardo J. Angara, and all acts and
decisions taken by him to enforce and implement the same;
RESOLVED, FURTHER, To ratify and confirm all other acts and decisions of
Chairman Angara and other governing bodies to preserve the integrity,
credibility, unity and solidarity of the LDP; and,
RESOLVED, FINALLY, To reiterate the vote of confidence of the National
Executive Council in, and support to, the continued efforts of Chairman
Angara to unite the political opposition.3
Rep. Aquino filed his Answer to the Petition on December 30, 2003. The
COMELEC heard the parties on oral arguments on the same day, after which
the case was submitted for resolution.
8,
Pending resolution, a Certificate of Nomination of Sen. Panfilo Lacson as
LDP candidate for President was filed with the COMELEC. The Certificate of
Nomination was signed by Rep. Aquino as LDP Secretary General.
On January 6, 2004, the COMELEC came to a decision.
The Commission identified the sole issue as "who among the [LDP] officers
[are] authorized to authenticate before the Commission that the person filing
the certificate of candidacy as party nominee for a certain position is the
official candidate of the party chosen in accordance with its Constitution."4
The COMELEC recognized that it "has the authority to act on matters
pertaining to ‘the ascertainment of the identity of [a] political party and its
legitimate officers….’"5 In the same breath, however, it held that "internal
 30
party matters and wranglings [sic] are purely for the party members to settle
among themselves and any unsettled controversy should be brought to the
proper forum with jurisdiction." The "question of who was suspended by
whom" was thus left for such proper forum to resolve.6 Noting that "the
intramurals in the LDP as an internal party matter seems to be
irreconcilable for the present when the filing of Certificate of Candidacy and
Certificate of Nomination are about to reach the deadline," the COMELEC
disposed of the Petition in the following fashion:
WHEREFORE, premises considered, the petition is GRANTED with LEGAL
EQUITY for both Petitioner and Oppositor. The candidates for President
down to the last Sangguniang Bayan Kagawad nominated and endorsed by
LDP Chairman Edgardo J. Angara are recognized by the Commission as
official candidates of LDP "Angara Wing". The candidates from President
down to the last Sangguniang Bayan Kagawad as nominated and endorsed
by LDP Secretary General Agapito "Butz" Aquino are recognized as official
candidates of LDP "Aquino Wing".
Consequently, each faction or "Wing" is entitled to a representative to any
election committee to which it may be entitled as created by the
Commission for the May 10, 2004 elections. For the copies of the election
returns, the "Angara Wing" will be entitled to the copies corresponding to
odd number of precincts, that is, Precinct Nos. 1, 3, 5, etc., and for the
"Aquino Wing" to the even number of precincts, that is Precinct Nos. 2, 4, 6,
etc. This is on the assumption that the LDP or as a party within a registered
Political Coalition becomes a recognized and denominated as a Dormant
[sic] Minority Party under the Election Laws. The two LDP "Wings" are
further entitled to and be accorded the rights and privileges with
corresponding legal obligations under Election Laws.7
Commissioners Luzviminda G. Tancangco, Ralph C. Lantion, Resurreccion
Z. Borra and Florentino A. Tuason, Jr. concurred in the Resolution authored
by Commissioner Rufino S.B. Javier. Chair Benjamin S. Abalos, Sr., joined
by Commissioner Mehol K. Sadain, submitted dissenting opinions.
Sen. Angara thus filed the present petition for Certiorari8 assailing the
COMELEC Resolution for having been issued with grave abuse of
discretion.
Thereafter, Rep. Aquino filed his Comment.
The Office of the Solicitor General submitted a Manifestation and
Motion praying for the granting of the Petition. The COMELEC thus filed a
separate Comment to the Petition.
The COMELEC correctly stated that "the ascertainment of the identity of [a]
political party and its legitimate officers" is a matter that is well within its
authority. The source of this authority is no other than the fundamental law
itself, which vests upon the COMELEC the power and function to enforce
and administer all laws and regulations relative to the conduct of an
election.9 In the exercise of such power and in the discharge of such
function, the Commission is endowed with ample "wherewithal" and
"considerable latitude in adopting means and methods that will ensure the
accomplishment of the great objectives for which it was created to promote
free, orderly and honest elections."10
Thus, in Kalaw v. Commission on Elections which involved the leadership
fight in the Liberal Party, 11 this Court held:
… that the respondent [COMELEC] has jurisdiction to hear and decide SP
Case No. 85-021 [involving a petition to prohibit Eva Estrada Kalaw "from
usurping or using the title or position of President of the Liberal Party"] in
view of its powers under Article IX-C, Section 2, of the Constitution to,
among others, enforce and administer all laws relative to the conduct of
elections, decide all questions affecting elections, register and regulate
political parties, and insure orderly elections. These powers include the
determination of the conflicting claims made in SP Case No. 85-021, which
are likely to cause confusion among the electorate if not resolved.
Additionally, the COMELEC is mandated by the Election Code to inter
alia require candidates to specify their political party affiliation in their
certificates of candidacy, allow political parties to appoint watchers, limit the
expenditures of each political party, determine whether or not a political
party shall retain its registration on the basis of its showing in the preceding
elections, etc. These matters include the ascertainment of the identity of the
political party and its legitimate officers responsible for its acts and the
resolution of such controversies as the one now before it where one party
appears to be divided into two wings under separate leaders each claiming to
be the president of the entire party…. [Emphasis supplied.]
Likewise in Palmares v. Commission on Elections,12 to which the assailed
Resolution made reference and which involved the Nacionalista Party,13 this
Court ruled
… that the COMELEC has jurisdiction over the issue of leadership in a
political party. Under the Constitution, the COMELEC is empowered to
register political parties [Sec. 2(5), Article IX-C.] Necessarily, the power to act
on behalf of a party and the responsibility for the acts of such political party
must be fixed in certain persons acting as its officers. In the exercise of the
power to register political parties, the COMELEC must determine who these
officers are. Consequently, if there is any controversy as to leadership, the
COMELEC may, in a proper case brought before it, resolve the issue
incidental to its power to register political parties.
This Court then proceeded to quote from Kalaw, supra.
The two cited decisions find support in Sumulong v. Commission on
Elections14 and Sotto v. Commission on Elections,15 where this Court, in
resolving the issue as to who between the factions of a political party was
entitled to nominate election inspectors, necessarily settled claims to the
party’s leadership. Both cases were decided without question on the
COMELEC’s power to determine such claims. In conformity with
jurisprudence, this Court did not identify the COMELEC’s jurisdiction as an
issue when this case was heard on oral argument.
There is no inconsistency between the above cases on the one hand and this
Court’s more recent ruling in Sinaca v. Mula16 on the other. In the latter case,
this Court held:
A political party has the right to identify the people who constitute the
association and to select a standard bearer who best represents the party’s
ideologies and preference. Political parties are generally free to conduct their
internal affairs free from judicial supervision; this common-law principle of
judicial restraint, rooted in the constitutionally protected right of free
association, serves the public interest by allowing the political processes to
operate without undue interference. Thus, the rule is that the determination of
disputes as to party nominations rests with the party, in the absence of
statutes giving the court’s [sic] jurisdiction.
Quintessentially, where there is no controlling statute or clear legal right
involved, the court will not assume jurisdiction to determine factional
controversies within a political party, but will leave the matter for
determination by the proper tribunals of the party itself or by the electors at
the polls. Similarly, in the absence of specific constitutional or legislative
regulations defining how nominations are to be made, or prohibiting
nominations from being made in certain ways, political parties may handle
such affairs, including nominations, in such manner as party rules may
establish. [Emphasis supplied.]
Sinaca, unlike previous cases, did not involve the question of party identity or
leadership; hence, it was not necessary for the COMELEC to delve therein.
None of the candidates involved in that case were claiming to be the political
party’s sole candidate.
In the case at bar, the Party Chairman, purporting to represent the LDP,
contends that under the Party Constitution only he or his representative, to
the exclusion of the Secretary General, has the authority to endorse and sign
party nominations. The Secretary General vigorously disputes this claim and
maintains his own authority. Clearly, the question of party identity or
leadership has to be resolved if the COMELEC is to ascertain whether the
candidates are legitimate party standard bearers or not.
The repercussions of the question of party identity and leadership do not end
at the validity of the endorsement of the certificates of candidacy of persons
claiming to be the party’s standard bearer. The law grants a registered
political party certain rights and privileges,17 which, naturally, redound to the
benefit of its candidates. It is also for this significant dimension that Sinaca is
 31
not applicable in this case. As conceded in Sinaca itself, the Court will have
to assume jurisdiction to determine factional controversies within a political
party where a controlling statute or clear legal right is involved. 18 Verily,
there is more than one law, as well as a number of clear legal rights, that
are at stake in the case at bar.
The law accords special treatment to political parties. The dominant
majority party, the dominant minority party as determined by the COMELEC,
for instance, is entitled to a copy of the election returns.19 The six (6)
accredited major political parties may nominate the principal watchers to be
designated by the Commission.20 The two principal watchers representing
the ruling coalition and the dominant opposition coalition in a precinct shall,
if available, affix their signatures and thumbmarks on the election returns for
that precinct.21 Three (3) of the six accredited major political parties are
entitled to receive copies of the certificate of canvass. 22 Registered political
parties whose candidates obtained at least ten percent (10%) of the total
votes cast in the next preceding senatorial election shall each have a
watcher and/or representative in the procurement and watermarking of
papers to be used in the printing of election returns and official ballots and
in the printing, numbering, storage, and distribution thereof. 23Finally, a
candidate and his political party are authorized to spend more per voter
than a candidate without a political party.24
It is, therefore, in the interest of every political party not to allow persons it
had not chosen to hold themselves out as representatives of the party.
Corollary to the right of a political party "to identify the people who constitute
the association and to select a standard bearer who best represents the
party’s ideologies and preference"25 is the right to exclude persons in its
association and to not lend its name and prestige to those which it deems
undeserving to represent its ideals. A certificate of candidacy makes known
to the COMELEC that the person therein mentioned has been nominated by
a duly authorized political group empowered to act and that it reflects
accurately the sentiment of the nominating body.26 A candidate’s political
party affiliation is also printed followed by his or her name in the certified list
of candidates.27 A candidate misrepresenting himself or herself to be a
party’s candidate, therefore, not only misappropriates the party’s name and
prestige but foists a deception upon the electorate, who may unwittingly
cast its ballot for him or her on the mistaken belief that he or she stands for
the party’s principles. To prevent this occurrence, the COMELEC has the
power and the duty to step in and enforce the law not only to protect the
party but, more importantly, the electorate, in line with the Commission’s
broad constitutional mandate to ensure orderly elections.
Having revisited and clarified the jurisdiction of COMELEC to rule upon
questions of party identity and leadership as an incident to its enforcement
powers, this Court cannot help but be baffled by the COMELEC’s ruling
declining to inquire into which party officer has the authority to sign and
endorse certificates of candidacy of the party’s nominees.
The only issue in this case, as defined by the COMELEC itself, is who as
between the Party Chairman and the Secretary General has the authority to
sign certificates of candidacy of the official candidates of the party. Indeed,
the petitioners’ Manifestation and Petition before the COMELEC merely
asked the Commission to recognize only those certificates of candidacy
signed by petitioner Sen. Angara or his authorized representative, and no
other.
To resolve this simple issue, the COMELEC need only to turn to the Party
Constitution. It need not go so far as to resolve the root of the conflict
between the party officials. It need only resolve such questions as may be
necessary in the exercise of its enforcement powers.
The LDP has a set of national officers composed of, among others, the
Party Chairman and the Secretary General.28 The Party Chairman is the
Chief Executive Officer of the Party, whose powers and functions include:
(1) To represent the Party in all external affairs and concerns, sign
documents for and on its behalf, and call the meetings and be the
presiding officer of the National Congress and the National Executive
Council….29
The Secretary General, on the other hand, assists the Party Chairman in
overseeing the day-to-day operations of the Party. Among his powers and
functions is:
(1) When empowered by the Party Chairman, to sign documents for and
on behalf of the Party…. 30
The Secretary General’s authority to sign documents, therefore, is only a
delegated power, which originally pertains to the Party Chairman.
Rep. Aquino claims that he was authorized to exercise to sign the party
candidates’ certificates of candidacy in the previous elections. Indeed, the
COMELEC found that:
In fact, during the May 14, 2001 elections, oppositor Agapito "Butz’ Aquino,
as LDP Secretary General, was authorized by the LDP to sign for the
Certificates of Nomination of the LDP Senatorial Candidates, including the
Certificate of Nomination for Senatorial Candidate Edgardo J. Angara, a copy
of said Certificate of Nomination and a copy of the Certificate for Senator
Edgardo J. Angara are attached as Annexes A and B, respectively. This
action by Secretary General Aquino is in accordance with the Constitution
and By-laws of LDP, not questioned by the LDP signed by its Secretary
General. This revocation has not been revoked or recalled by the National
Congress of the LDP which is the one authorized to nominate candidates for
President and Vice-President, respectively.31
Assuming that Rep. Aquino previously had such authority, this Court cannot
share the COMELEC’s finding that the same "has not been revoked or
recalled." No revocation of such authority can be more explicit than the
totality of Sen. Angara’s Manifestations and Petition before the COMELEC,
through which he informed the Commission that Rep. Aquino’s had been
placed on indefinite forced leave and that Ambassador Zaldivar has been
designated Acting Secretary General, who "shall henceforth exercise all the
powers and functions of the Secretary General under the Constitution and
By-Laws of the LDP."32 As the prerogative to empower Rep. Aquino to sign
documents devolves upon Sen. Angara, so he may choose, at his discretion,
to withhold or revoke such power.
Both respondents Rep. Aquino and COMELEC also cited Section 6 of
COMELEC Resolution No. 645333 as basis for the Party Secretary General’s
authority to sign certificates of candidacy. Said Section 6 states:
SEC. 6. Certificate of nomination of official candidates by political party. –
The certificate of nomination of registered political parties or coalitions of
political parties of their official candidates shall be filed not later than the last
day for filing of certificates of candidacy, which is January 2, 2004 duly
signed and attested under oath by the party president, chairman,
secretary-general or any other duly authorized officer and shall bear the
acceptance of the nominee by affixing his signature in the space provided
therein. [Emphasis and underscoring supplied.]
Clearly, however, the above provision presupposes that the party president,
chairman or secretary-general has been "duly authorized" by the party to sign
the certificate of candidacy. COMELEC Resolution No. 6453 cannot grant a
party official greater authority than what the party itself grants, lest such
Resolution amount to a violation of the party’s freedom of association.
Neither does the Party Secretary General have the power to nominate the
official candidates of the LDP. That power resides in the governing bodies of
the Party.34 In particular, the National Congress, which is the highest
policy-making and governing body of the Party, has the power
(6) To nominate the official candidates of the Party for President, Vice
President, and Senators, and, whenever the corresponding conventions fail
to meet or to make the requisite nominations, to nominate the official
candidates for municipal city, congressional district, provincial and regional
elective offices….35
Not only does Rep. Aquino insist on his power to sign Certificates of
Candidacy on behalf of the LDP but he would also deny Sen. Angara that
power on account of the latter’s preventive suspension. It seems, however,
that respondent has abandoned this tack by the silence of
his Memorandum on the matter.
In any case, it appears that on November 28, 2003, Representative Rolex
Suplico, LDP Region VI Regional Chairman, filed a complaint with Rep.
 32
Aquino against Party Chairman Sen. Angara for disloyalty to the Party,
gross violation of the Party Constitution, and other divisive acts inimical to
the interest of the party and its members. Rep. Aquino, as Secretary
General, created a committee composed of three (3) members of the LDP
National Executive Council to investigate the complaint and recommend
appropriate action thereon. On December 12, 2003, the investigating
committee issued a resolution placing Sen. Angara under preventive
suspension effective immediately and directing him to refrain from
performing acts in behalf of the party until the committee finishes its
investigation and submits its final recommendations.
The authority to create the investigating committee supposedly rests on
Section 9 (4), Article VI of the LDP Constitution, which enumerates the
powers and functions of the Secretary General:
(4) With the concurrence of the Party Chairman, to enforce Party
discipline…. {Emphasis supplied.]
Evidently, just as Rep. Aquino has no power to sign and nominate
candidates in behalf of the LDP, neither does he have the power to enforce
Party discipline or, as an incident thereto, to create an investigating
committee, without the Party Chairman’s concurrence. Much less does the
investigating committee so created have the power to place the Party
Chairman under preventive suspension since its authority stems from a
nullity. Simply put, the spring has no source.
The lack of Rep. Aquino’s authority to sign documents or to nominate
candidates for the LDP would not result in the denial of due course to or the
cancellation of the certificates of candidacy he may have signed on behalf
of the LDP.36 The exclusive ground for the denial of due course to or the
cancellation of a certificate of candidacy for any elective office is that any
material representation contained therein as required by law is
false.37 Since the signature of Rep. Aquino was affixed either prior to, or on
the basis of, the challenged Resolution recognizing his authority to sign on
behalf of the LDP, the same would not constitute material representation
that is false. In such case, the candidates are simply deemed as not
nominated by the LDP and are considered independent candidates
pursuant to Section 7 of COMELEC Resolution No. 6453:
SEC. 7. Effect of filing certificate of nomination. – A candidate who has not
been nominated by a registered political party or its duly authorized
representative, or whose nomination has not been submitted by a
registered political party… shall be considered as an independent
candidate.
COMELEC Commissioner Sadain referred to the above provision in
his Dissenting Opinion, and this Court finds refreshing wisdom – so sorely
wanting in the majority opinion – in his suggestion that:
All other party members representing themselves to be candidates of the
party shall not be deprived of their right to file their respective certificates of
candidacy and run for office, if so qualified, but that they shall not be
accorded the rights and privileges reserved by election laws for official
nominees of registered political parties. Instead, they shall be treated as
independent candidates.38
From the foregoing, it is plain that the COMELEC misapplied equity in the
present case. For all its conceded merits, equity is available only in the
absence of law and not as its replacement.39 Equity is described as justice
without legality, which simply means that it cannot supplant, although it may,
as often happens, supplement the law.40 The COMELEC should have
decided the case on the basis of the party constitution and election laws. It
chose not to because of its irrational fear of treading, as respondent Aquino
put it, on "unchartered" territories.41 But, as shown above, these territories
have long been charted by jurisprudence and, in any case, the COMELEC
need not have sailed far from the shore to arrive at the correct conclusion.
In truth, the COMELEC Resolution is indecision in the guise of equity.
Worse, the COMELEC divided the LDP into "wings," each of which may
nominate candidates for every elective position. Both wings are also entitled
to representatives in the election committees that the Commission may
create. In the event that the LDP is accorded dominant minority party
election status, election returns of odd-numbered precincts shall be
furnished the Angara wing and those of even-numbered precincts, the
Aquino wing.
By creating the two wings, the COMELEC effectively diffused the LDP’s
strength and undeniably emasculated its chance of obtaining the
Commission’s nod as the dominant minority party.
By allowing each wing to nominate different candidates, the COMELEC
planted the seeds of confusion among the electorate, who are apt to be
confounded by two candidates from a single political party. In Recabo, Jr. v.
Commission on Elections,42 this Court declared that the electoral process
envisions one candidate from a political party for each position, and disunity
and discord amongst members of a political party should not be allowed to
create a mockery thereof. The admonition against mocking the electoral
process not only applies to political parties but with greater force to the
COMELEC.
By according both wings representatives in the election committees, the
COMELEC has eroded the significance of political parties and effectively
divided the opposition. The COMELEC has lost sight of the unique political
situation of the Philippines where, to paraphrase Justice Perfecto’s
concurring opinion in Sotto, supra, the administration party has always been
unnecessarily and dangerously too big and the opposition party too small to
be an effective check on the administration. The purpose of according
dominant status and representation to a minority party is precisely to serve
as an effective check on the majority. The COMELEC performed a disservice
to the opposition and, ultimately, to the voting public, as
its Resolution facilitated, rather than forestalled, the division of the minority
party.
By splitting copies of the election returns between the two factions, the
COMELEC has fractured both wings. The practical purpose of furnishing a
party with a copy of the election returns is to allow it to tally the results of the
elections at the precinct level. Ultimately, it is a guard against fraud. Thus,
resort to copies thereof may be had when the election returns are delayed,
lost or destroyed,43 or when they appear to be tampered or falsified.44 A split
party without a complete set of election returns cannot successfully help
preserve the sanctity of the ballot.
It bears reminding respondent Commission of this Court’s pronouncement
in Peralta v. Commission on Elections,45which, while made in the backdrop of
a parliamentary form of government, holds equally true under the present
government structure:
… political parties constitute a basic element of the democratic institutional
apparatus. Government derives its strength from the support, active or
passive, of a coalition of elements of society. In modern times the political
party has become the instrument for the organization of societies. This is
predicated on the doctrine that government exists with the consent of the
governed. Political parties perform an "essential function in the management
of succession to power, as well as in the process of obtaining popular
consent to the course of public policy. They amass sufficient support to
buttress the authority of governments; or, on the contrary, they attract or
organize discontent and dissatisfaction sufficient to oust the government. In
either case they perform the function of the articulation of the interests and
aspirations of a substantial segment of the citizenry, usually in ways
contended to be promotive of the national weal."
The assailed COMELEC Resolution does not advance, but subverts, this
philosophy behind political parties.
As if to rationalize its folly, the COMELEC invokes the constitutional policy
towards a free and open party system.46This policy, however, envisions a
system that shall "evolve according to the free choice of the people,"47 not
one molded and whittled by the COMELEC. When the Constitution speaks of
a multi-party system, it does not contemplate the COMELEC splitting parties
into two. For doing just that, this pretender to the throne of King Solomon
acted whimsically and capriciously. Certiorari lies against it, indeed.
WHEREFORE, the assailed COMELEC Resolution is ANNULLED and
the Petition is GRANTED IN PART. Respondent Commission on Elections is
directed to recognize as official candidates of the Laban ng Demokratikong
 33
Pilipino only those whose Certificates of Candidacy are signed by LDP
Party Chairman Senator Edgardo J. Angara or his duly authorized
representative/s.
SO ORDERED.
G.R. No. 164439 January 23, 2006
JEFFREY L. SANTOS, Petitioner,
vs.
COMMISSION ON ELECTIONS and MACARIO E. ASISTIO
III, Respondents.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for certiorari1 assailing the Resolution2 of the
Commission on Elections ("COMELEC") First Division in SPC No. 04-233
and Resolution No. 72573 of the COMELEC En Banc. The COMELEC
promulgated the two Resolutions on 29 June 2004.
The Antecedent Facts
Jeffrey L. Santos ("Santos") and Macario E. Asistio III ("Asistio") were
candidates for the position of Councilor for the Second District of Caloocan
City in the 10 May 2004 Elections. On 18 May 2004, the City Board of
Canvassers proclaimed Asistio as councilor-elect for the Second District of
Caloocan City. Based on the Canvass of Election Returns and the
Statement of Votes, Asistio garnered 45,163 votes and secured the sixth
and last slot for the position of Councilor while Santos placed seventh with
44,558 votes.
On 28 May 2004, Santos filed with the COMELEC a Petition, docketed SPC
No. 04-233, for Annulment of Proclamation on the Basis of Erroneous
Canvass/Tallies of Votes. Santos alleged that he was a victim
of "dagdag-bawas" and that his votes were reduced in the Statement of
Votes while Asistio’s votes were increased. Santos further alleged that
based on the certified true copies of the NAMFREL’s4 election returns as
well as the Certificates of Votes submitted by the poll watchers in the
Second District of Caloocan City, he obtained 46,361 votes while Asistio
garnered only 45,514 votes. Santos prayed for the nullification of the
proclamation of Asistio and for his declaration as the duly elected Councilor
of the Second District of Caloocan City.
The Ruling of the COMELEC First Division
In a Resolution promulgated on 29 June 2004, the COMELEC First Division
dismissed SPC No. 04-233 for lack of merit.
The COMELEC First Division ruled that: (1) Santos’ lack of watchers and
counsel during the early stages of the canvassing proceedings is not a
proper ground for the annulment of Asistio’s proclamation; (2) the
documents submitted by Santos, consisting of a compilation and tabulation
of votes which he himself prepared, and which he based on certified true
copies of NAMFREL’s election returns and the originals of various
Certificates of Votes submitted by the poll watchers, are not admissible in
evidence; and (3) Santos should have assailed the proceedings via a
pre-proclamation controversy, or through an election protest within ten days
after the proclamation of Asistio, instead of a petition for annulment of
proclamation.
On 29 June 2004, or on the same date of the promulgation of the
Resolution by the COMELEC First Division, the COMELEC En Banc
promulgated Resolution No. 7257, as follows:
RESOLUTION NO. 7257
(OMNIBUS RESOLUTION ON PENDING CASES)
WHEREAS, in connnection with the May 10, 2004 National and Local
Elections, various petitions docketed as Special Actions, Special Cases and
Special Proceeding Cases and other contentious cases were filed with the
Office of the Clerk of the Commission;
WHEREAS, the second paragraph of Sec. 16, Republic Act No. 7166,
provides:
"All pre-proclamation cases pending before the Commission shall be deemed
terminated at the beginning of the term of office involved and the rulings of
the boards of canvassers concerned shall be deemed affirmed, without
prejudice to the filing of a regular election protest by the aggrieved party.
However, proceedings may continue when on the basis of the evidence thus
far presented, the Commission determines that the petition appears
meritorious and accordingly issues an order for the proceeding to continue or
when appropriate order has been issued by the Supreme Court in a petition
for certiorari."
WHEREAS, the Commission has disposed of the pre-proclamation and other
cases brought before it for adjudication, except those whose disposition
requires proceedings extending beyond 30 June 2001;
NOW, THEREFORE, by virtue of its powers under the Constitution, the
Omnibus Election Code, Batas Pambansa Blg. 881, Republic Act Nos. 6646
and 7166, and other election laws, the Commission RESOLVED, as it hereby
RESOLVES:
1. All cases which were filed by private parties without timely payment of the
proper filing fee are hereby dismissed;
2. All cases which were filed beyond the reglementary period or not in the
form prescribed under appropriate provisions of the Omnibus Election Code,
Republic Act Nos. 6646 and 7166 are hereby likewise dismissed;
3. All other pre-proclamation cases which do not fall within the class of cases
specified under paragraphs (1) and (2) immediately preceding shall be
deemed terminated pursuant to Section 16, R.A. 7166 except those
mentioned in paragraph (4). Hence, all the rulings of boards of canvassers
concerned are deemed affirmed. Such boards of canvassers are directed to
reconvene forthwith, continue their respective canvass and proclaim the
winning candidates accordingly, if the proceedings were suspended by virtue
of pending pre-proclamation cases;
4. All remaining pre-proclamation cases, which on the basis of the evidence
thus far presented, appear meritorious and/or are subject of orders by the
Supreme Court or this Commission in petitions for certiorari brought
respectively to them shall likewise remain active cases, thereby requiring the
proceedings therein to continue beyond 30 June 2004, until they are finally
resolved; and
5. All petitions for disqualification, failure of elections or analogous cases, not
being pre-proclamation controversies and, therefore, not governed by
Sections 17, 18, 19, 20, 21, and particularly, by the second paragraph of Sec.
6, Republic Act No. 7166, shall remain active cases, the proceedings to
continue beyond June 30, 2004, until the issues therein are finally resolved
by the Commission;
ACCORDINGLY, it is hereby ordered that the proceedings in the cases
appearing on the list annexed and made an integral part hereof, be continued
to be heard and disposed of by the Commission.
This resolution shall take effect immediately.5
Annexed to Resolution No. 7257 is a list of cases6 that shall remain active
before the COMELEC until their final resolution. SPC No. 04-233 is not
included in the list.
On 9 July 2004, Santos filed with the COMELEC En Banc a motion for the
reconsideration assailing the COMELEC First Division’s Resolution.
 34
On 30 August 2004, Santos filed before this Court a petition
for certiorari assailing the 29 June 2004 Resolution of the COMELEC First
Division and Resolution No. 7257 of the COMELEC En Banc.
In his Comment on the petition, Asistio accused Santos of forum shopping.
Asistio informed the Court that the COMELEC En Banc only disposed of
Santos’ motion for reconsideration in its Order of 15 September 2004 when
it affirmed the 29 June 2004 Resolution of the COMELEC First Division.
Hence, at the time of the filing of the petition for certiorari before this Court,
Santos’ motion for reconsideration was still pending before the COMELEC
En Banc.
Santos, in his Reply to Asistio’s Comment, maintains that he is not guilty of
forum shopping because the petition before the Supreme Court only
challenges Resolution No. 7257 and not the 29 June 2004 Resolution of the
COMELEC First Division. Santos further argues that by excluding SPC No.
04-233 from the list of cases annexed to Resolution No. 7257, the
COMELEC En Banc effectively terminated the case to its finality. Santos
claims that he only learned on 22 July 2004 of the exclusion of SPC No.
04-233 from the list of cases, after the petition before this Court had been
filed. However, he admits that Resolution No. 7257 was published in the
Philippine Daily Inquirer on 30 June 2004.
The Issues
The issues for resolution of this Court are:
1. Whether Santos is guilty forum shopping;
2. Whether the COMELEC First Division committed grave abuse of
discretion in dismissing SPC No. 04-233;
3. Whether the COMELEC En Banc committed grave abuse of discretion in
excluding SPC No. 04-233 from the list of cases annexed to Resolution No.
7257.
The Ruling of This Court
The petition has no merit.
Santos is Guilty of Forum-Shopping
Forum shopping is an act of a party, against whom an adverse judgment or
order has been rendered in one forum, of seeking and possibly securing a
favorable opinion in another forum, other than by appeal or special civil
action for certiorari.7 It may also be the institution of two or more actions or
proceedings grounded on the same cause on the supposition that one or
the other court would make a favorable disposition.8
In this case, Santos filed the petition for certiorari before this Court during
the pendency of his motion for reconsideration with the COMELEC En Banc.
The petition clearly states that he is questioning the two Resolutions issued
by the COMELEC: the 29 June 2004 Resolution of the COMELEC First
Division in SPC No. 04-233 and the COMELEC En Banc Resolution No.
7257.9 It was only when Asistio, in his Comment, called the Court’s
attention that Santos now belatedly asserts that he only seeks to challenge
COMELEC Resolution No. 7257 and not the Resolution of the COMELEC
First Division.10
Santos stated in his petition before this Court that on 9 July 2004, he filed a
motion for reconsideration of the COMELEC First Division’s Resolution.
However, he did not disclose that at the time of the filing of his petition, his
motion for reconsideration was still pending before the COMELEC En Banc.
Santos did not also bother to inform the Court of the denial of his motion for
reconsideration by the COMELEC En Banc. Had Asistio not called this
Court’s attention, we would have ruled on whether the COMELEC First
Division committed grave abuse of discretion in dismissing SPC No. 04-233,
which is one of the issues raised by Santos in this petition. This act of
Santos alone constitutes a ground for this Court’s summary dismissal of his
petition.
The Resolution of the COMELEC First Division has attained Finality
Had this Court been apprised at the outset of the pendency of Santos’ motion
for reconsideration before the COMELEC En Banc, it would have dismissed
the petition outright for premature filing. When the COMELEC En Banc finally
resolved the motion for reconsideration, Santos no longer elevated the denial
of his motion before this Court. He could no longer do that without exposing
his act of forum shopping. Thus, by Santos’ inaction, the Order of the
COMELEC En Banc is now final and executory.
The Exclusion of SPC No. 04-233 in the List of Cases
Annexed To Resolution No. 7257 has become Moot
Contrary to Santos’ claim, the COMELEC En Banc did not dismiss outright
SPC No. 04-233 even though the case was excluded in the list annexed to
Resolution No. 7257. The COMELEC First Division in fact resolved SPC No.
04-233. When Santos filed a motion for reconsideration, the COMELEC En
Banc accepted, considered and disposed of the motion. Hence, the issue of
whether the COMELEC En Banc committed grave abuse of discretion in
excluding SPC No. 04-233 in the list of cases annexed to Resolution No.
7257 is now moot since the COMELEC in fact accepted, considered and
disposed of SPC No. 04-233.
WHEREFORE, we DISMISS the petition.
SO ORDERED.
G.R. No. 191084 March 25, 2010
JOSELITO R. MENDOZA, Petitioner,
vs.
COMMISSION ON ELECTIONS AND ROBERTO M.
PAGDANGANAN, Respondents.
DECISION
PEREZ, J.:
When the language of the law is clear and explicit, there is no room for
interpretation, only application. And if statutory construction be necessary,
the statute should be interpreted to assure its being in consonance with,
rather than repugnant to, any constitutional command or prescription. 1 It is
upon these basic principles that the petition must be granted.
The factual and procedural antecedents are not in dispute.
Petitioner Joselito R. Mendoza was proclaimed the winner of the 2007
gubernatorial election for the province of Bulacan, besting respondent
Roberto M. Pagdanganan by a margin of 15,732 votes. On 1 June 2007,
respondent filed the Election Protest which, anchored on the massive
electoral fraud allegedly perpetrated by petitioner, was raffled to the Second
Division of the Commission on Elections (COMELEC) as EPC No. 2007-44.
With petitioner’s filing of his Answer with Counter-Protest on 18 June 2007,
the COMELEC proceeded to conduct the preliminary conference and to
order a revision of the ballots from the contested precincts indicated in said
pleadings.
Upon the evidence adduced and the memoranda subsequently filed by the
parties, the COMELEC Second Division went on to render the 1 December
2009 Resolution, which annulled and set aside petitioner’s proclamation as
governor of Bulacan and proclaimed respondent duly elected to said position
by a winning margin of 4,321 votes. Coupled with a directive to the
Department of Interior and Local Government to implement the same, the
resolution ordered petitioner to immediately vacate said office, to cease and
desist from discharging the functions pertaining thereto and to cause a
peaceful turn-over thereof to respondent.
 35
Dissatisfied, petitioner filed a Motion for Reconsideration of the foregoing
resolution with the COMELEC En Banc. Against respondent’s Motion for
Execution of Judgment Pending Motion for Reconsideration, petitioner also
filed an Opposition to the Motion for Execution before the COMELEC
Second Division. On 8 February 2010, however, the COMELEC En Banc
issued a Resolution, effectively disposing of the foregoing motions/incidents
in this wise:
WHEREFORE, in view of the foregoing, the Commission En Banc DENIES
the Motion for Reconsideration for lack of merit. The Resolution of the
Commission (Second Division) promulgated on December 1, 2009
ANNULLING the proclamation of JOSELITO R. MENDOZA as the duly
elected Governor of Bulacan and DECLARING ROBERTO M.
PAGDANGANAN as duly elected to said Office is AFFIRMED with
modification.
Considering the proximity of the end of the term of office involved, this
Resolution is declared immediately executory.
ACCORDINGLY, the Commission En Banc hereby ISSUES a WRIT OF
EXECUTION directing the Provincial Election Supervisor of Bulacan, in
coordination with the DILG Provincial Operations Officer to implement the
Resolution of the Commission (Second Division) dated December 1, 2009
and this Resolution of the Commission En Banc by ordering JOSELITO R.
MENDOZA to CEASE and DESIST from performing the functions of
Governor of the Province of Bulacan and to VACATE said office in favor of
ROBERTO M. PAGDANGANAN.
Let a copy of this Resolution be furnished the Secretary of the Department
of Interior and Local Government, the Provincial Election Supervisor of
Bulacan, and the DILG Provincial Operations Officer of the Province of
Bulacan. (Underscoring supplied)
On 11 February 2010, petitioner filed before the COMELEC an Urgent
Motion to Recall the Resolution Promulgated on February 8, 2010 on the
following grounds: (a) lack of concurrence of the majority of the members of
the Commission pursuant to Section 5, Rule 3 of the COMELEC Rules of
Procedure; (b) lack of re-hearing pursuant to Section 6, Rule 18 of the
Rules; and (c) lack of notice for the promulgation of the resolution pursuant
to Section 5, Rule 18 of said Rules. Invoking Section 13, Rule 18 of the
same Rules, petitioner additionally argued that the resolution pertained to
an ordinary action and, as such, can only become final and executory after
30 days from its promulgation.
On 12 February 2010, petitioner filed the instant Petition for Certiorari with
an Urgent Prayer for the Issuance of a Temporary Restraining Order and/or
a Status Quo Order and Writ of Preliminary Injunction. Directed against the
8 February 2010 Resolution of the COMELEC En Banc, the petition is
noticeably anchored on the same grounds raised in petitioner’s urgent
motion to recall the same resolution before the COMELEC. In addition, the
petitioner disputes the appreciation and result of the revision of the
contested ballots.
In the meantime, it appears that the COMELEC En Banc issued a 10
February 2010 Order, scheduling the case for re-hearing on 15 February
2010, on the ground that "there was no majority vote of the members
obtained in the Resolution of the Commission En Banc promulgated on
February 8, 2010." At said scheduled re-hearing, it further appears that the
parties agreed to submit the matter for resolution by the COMELEC En
Banc upon submission of their respective memoranda, without further
argument. As it turned out, the deliberations which ensued again failed to
muster the required majority vote since, with three (3) Commissioners not
taking part in the voting, and only one dissent therefrom, the assailed 1
December 2009 Resolution of the COMELEC Second Division only
garnered three concurrences.
In their respective Comments thereto, both respondent and the Office of the
Solicitor General argue that, in addition to its premature filing, the petition at
bench violated the rule against forum shopping. Claiming that he received
the 10 February 2010 Order of the COMELEC En Banc late in the morning
of 12 February 2010 or when the filing of the petition was already underway,
petitioner argued that: (a) he apprised the Court of the pendency of his
Urgent Motion to Recall the Resolution Promulgated on 8 February 2010;
and, (b) that the writ of execution ensconced in said resolution compelled him
to resort to the petition for certiorari before us.
On 4 March 2010, the COMELEC En Banc issued an Order for the issuance
of a Writ of Execution directing the implementation of the 1 December 2009
Resolution of the COMELEC Second Division. While the COMELEC
Electoral Contests Adjudication Department (ECAD) issued the
corresponding Writ of Execution on 5 March 2010, the record shows that
COMELEC En Banc issued an Order on the same date, directing the ECAD
to deliver said 4 March 2010 Order and 5 March 2010 Writ of Execution by
personal service to the parties. Aggrieved, petitioner filed the following
motions with the COMELEC En Banc on 5 March 2010, viz.: (a) Urgent
Motion to Declare Null and Void and Recall Latest En Banc Resolution Dated
March 4, 2010; and, (b) Urgent Motion to Set Aside 4 March 2010 En Banc
Resolution Granting Protestant’s Motion for Execution Pending Motion for
Reconsideration.
On 8 March 2010, petitioner filed before us a Supplement to the Petition with
a Most Urgent Reiterating Motion for the Issuance of a Temporary
Restraining Order or a Status Quo Order. Contending that respondent’s
protest should have been dismissed when no majority vote was obtained
after the re-hearing in the case, petitioner argues that: (a) the 4 March 2010
Order and 5 March 2010 Writ of Execution are null and void; (b) no valid
decision can be rendered by the COMELEC En Banc without the
appreciation of the original ballots; (c) the COMELEC ignored the Court’s
ruling in the recent case of Corral v. Commission on Elections;2 and (d) the
foregoing circumstances are indicative of the irregularities which attended the
adjudication of the case before the Division and En Banc levels of the
COMELEC.
Despite receipt of respondent’s Most Respectful Urgent Manifestation which
once again called attention to petitioner’s supposed forum shopping, the
Court issued a Resolution dated 9 March 2010 granting the Status Quo Ante
Order sought in the petition. With respondent’s filing of a Manifestation and
Comment to said supplemental pleading on 10 March 2010, petitioner filed a
Manifestation with Motion to Appreciate Ballots Invalidated as Written by One
Person and Marked Ballot on 12 March 2010.
The submissions, as measured by the election rules, dictate that we grant the
petition, set aside and nullify the assailed resolutions and orders, and order
the dismissal of respondent’s election protest.
The Preliminaries
More than the justifications petitioner proffers for the filing of the petition at
bench, the public interest involved in the case militates against the dismissal
of the pleading on technical grounds like forum shopping. On the other hand,
to rule that petitioner should have filed a new petition to challenge the 4
March 2010 Order of the COMELEC En Banc is to disregard the liberality
traditionally accorded amended and supplemental pleadings and the very
purpose for which supplemental pleadings are allowed under Section 6, Rule
10 of the 1997 Rules of Civil Procedure.3 More importantly, such a course of
action would clearly be violative of the injunction against multiplicity of suits
enunciated in a long catena of decisions handed down by this Court.
The Main Matter
Acting on petitioner’s motion for reconsideration of the 1 December 2009
Resolution issued by the COMELEC Second Division, the COMELEC En
Banc, as stated, initially issued the Resolution dated 8 February 2010,
denying the motion for lack of merit and declaring the same resolution
immediately executory. However, even before petitioner’s filing of his Urgent
Motion to Recall the Resolution Promulgated on 8 February 2010 and the
instant Petition for Certiorari with an Urgent Prayer for the Issuance of a
Temporary Restraining Order and/or a Status Quo Order and Writ of
Preliminary Injunction, the record shows that the COMELEC En Banc issued
the 10 February 2010 Resolution, ordering the re-hearing of the case on the
ground that "there was no majority vote of the members obtained in the
Resolution of the Commission En Banc promulgated on February 8, 2010."
Having conceded one of the grounds subsequently raised in petitioner’s
Urgent Motion to Recall the Resolution Promulgated on February 8, 2010,
the COMELEC En Banc significantly failed to obtain the votes required under
Section 5(a), Rule 3 of its own Rules of Procedure4 for a second time.
 36
The failure of the COMELEC En Banc to muster the required majority vote
even after the 15 February 2010 re-hearing should have caused the
dismissal of respondent’s Election Protest. Promulgated on 15 February
1993 pursuant to Section 6, Article IX-A and Section 3, Article IX-C of the
Constitution, the COMELEC Rules of Procedure is clear on this matter.
Without any trace of ambiguity, Section 6, Rule 18 of said Rule categorically
provides as follows:
Sec. 6. Procedure if Opinion is Equally Divided. – When the Commission en
banc is equally divided in opinion, or the necessary majority cannot be had,
the case shall be reheard, and if on rehearing no decision is reached, the
action or proceeding shall be dismissed if originally commenced in the
Commission; in appealed cases, the judgment or order appealed from shall
stand affirmed; and in all incidental matters, the petition or motion shall be
denied.
The propriety of applying the foregoing provision according to its literal tenor
cannot be gainsaid. As one pertaining to the election of the provincial
governor of Bulacan, respondent’s Election Protest was originally
commenced in the COMELEC, pursuant to its exclusive original jurisdiction
over the case. Although initially raffled to the COMELEC Second Division,
the elevation of said election protest on motion for reconsideration before
the Commission En Banc cannot, by any stretch of the imagination, be
considered an appeal. Tersely put, there is no appeal within the COMELEC
itself. As aptly observed in the lone dissent penned by COMELEC
Commissioner Rene V. Sarmiento, respondent’s Election Protest was filed
with the Commission "at the first instance" and should be, accordingly,
considered an action or proceeding "originally commenced in the
Commission."
The dissent reads Section 6 of COMELEC Rule 18 to mean exactly the
opposite of what it expressly states. Thus was made the conclusion to the
effect that since no decision was reached by the COMELEC En Banc, then
the decision of the Second Division should stand, which is squarely in the
face of the Rule that when the Commission En Banc is equally divided in
opinion, or the necessary majority cannot be had, the case shall be
re-heard, and if on re-hearing, no decision is reached, the action or
proceeding shall be dismissed if originally commenced in the Commission.
The reliance is on Section 3, Article IX(C) of the Constitution which
provides:
Section 3. The Commission on Elections may sit En Banc or in two divisions,
and shall promulgate its rules of procedure in order to expedite 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 decisions shall be decided by the Commission En
Banc.
The dissent reasons that it would be absurd that for a lack of the necessary
majority in the motion for reconsideration before the COMELEC En Banc,
the original protest action should be dismissed as this would render
nugatory the constitutional mandate to authorize and empower a division of
the COMELEC to decide election cases.
We cannot, in this case, get out of the square cover of Section 6, Rule 18 of
the COMELEC Rules. The provision is not violative of the Constitution.
The Rule, in fact, was promulgated obviously pursuant to the Constitutional
mandate in the first sentence of Section 3 of Article IX(C). Clearly too, the
Rule was issued "in order to expedite disposition of election cases" such
that even the absence of a majority in a Commission En Banc opinion on a
case under reconsideration does not result in a non-decision. Either the
judgment or order appealed from "shall stand affirmed" or the action
originally commenced in the Commission "shall be dismissed."
It is easily evident in the second sentence of Section 3 of Article IX(C) that
all election cases before the COMELEC are passed upon in one integrated
procedure that consists of a hearing and a decision "in division" and when
necessitated by a motion for reconsideration, a decision "by the
Commission En Banc."
What is included in the phrase "all such election cases" may be seen in
Section 2(2) of Article IX(C) of the Constitution which states:
Section 2. The Commission on Elections shall exercise the following powers
and functions:
xxxx
(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial, and
city officials, and appellate jurisdiction over all contests involving elective
municipal of officials decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial courts of limited
jurisdiction.
Section 2(2) read in relation to Section 3 shows that however the jurisdiction
of the COMELEC is involved, either in the exercise of "exclusive original
jurisdiction" or an "appellate jurisdiction," the COMELEC will act on the case
in one whole and single process: to repeat, in division, and if impelled by a
motion for reconsideration, en banc.
There is a difference in the result of the exercise of jurisdiction by the
COMELEC over election contests. The difference inheres in the kind of
jurisdiction invoked, which in turn, is determined by the case brought before
the COMELEC. When a decision of a trial court is brought before the
COMELEC for it to exercise appellate jurisdiction, the division decides the
appeal but, if there is a motion for reconsideration, the appeal proceeds to
the banc where a majority is needed for a decision. If the process ends
without the required majority at the banc, the appealed decision stands
affirmed. Upon the other hand, and this is what happened in the instant case,
if what is brought before the COMELEC is an original protest invoking the
original jurisdiction of the Commission, the protest, as one whole process, is
first decided by the division, which process is continued in the banc if there is
a motion for reconsideration of the division ruling. If no majority decision is
reached in the banc, the protest, which is an original action, shall be
dismissed. There is no first instance decision that can be deemed affirmed.
It is easy to understand the reason for the difference in the result of the two
protests, one as original action and the other as an appeal, if and when the
protest process reaches the COMELEC En Banc. In a protest originally
brought before the COMELEC, no completed process comes to the banc. It
is the banc which will complete the process. If, at that completion, no
conclusive result in the form of a majority vote is reached, the COMELEC has
no other choice except to dismiss the protest. In a protest placed before the
Commission as an appeal, there has been a completed proceeding that has
resulted in a decision. So that when the COMELEC, as an appellate body,
and after the appellate process is completed, reaches an inconclusive result,
the appeal is in effect dismissed and resultingly, the decision appealed from
is affirmed.1avvphi1
To repeat, Rule 18, Section 6 of the COMELEC Rules of Procedure follows,
is in conformity with, and is in implementation of Section 3 of Article IX(C) of
the Constitution.
Indeed, the grave abuse of discretion of the COMELEC is patent in the fact
that despite the existence in its books of the clearly worded Section 6 of Rule
18, which incidentally has been acknowledged by this Court in the recent
case of Marcoleta v. COMELEC,5 it completely ignored and disregarded its
very own decree and proceeded with the questioned Resolution of 8
February 2010 and Order of 4 March 2010, in all, annulling the proclamation
of petitioner Joselito R. Mendoza as the duly elected governor of Bulacan,
declaring respondent Roberto M. Pagdanganan as the duly elected governor,
and ordering petitioner Joselito R. Mendoza to cease and desist from
performing the functions of the Governor of Bulacan and to vacate said office
in favor of respondent Roberto M. Pagdanganan.1avvphi1
The grave abuse of discretion of the COMELEC is underscored by the fact
that the protest that petitioner Pagdanganan filed on 1 June 2007 overstayed
with the COMELEC until the present election year when the end of the term
of the contested office is at hand and there was hardly enough time for the
re-hearing that was conducted only on 15 February 2010. As the hearing
time at the division had run out, and the re-hearing time at the banc was fast
running out, the unwanted result came about: incomplete appreciation of
ballots; invalidation of ballots on general and unspecific grounds; unrebutted
presumption of validity of ballots.
 37
WHEREFORE, the petition is GRANTED. The questioned Resolution of the
COMELEC promulgated on 8 February 2010 in EPC No. 2007-44 entitled
"Roberto M. Pagdanganan v. Joselito R. Mendoza," the Order issued on 4
March 2010, and the consequent Writ of Execution dated 5 March 2010 are
NULLIFIED and SET ASIDE. The election protest of respondent Roberto M.
Pagdanganan is hereby DISMISSED.
SO ORDERED.
The COMELEC First Division found that Maliksi obtained a total of 40,092
votes, broken down as follows: (a) 29,170 votes in the clustered precincts
not appealed as per statement of votes by precinct, and (b) 10,922 votes in
the appealed clustered precincts. On the other hand, Saquilayan obtained a
total of 48,521 votes, broken down as follows: (a) 35,908 votes in the
clustered precincts not appealed as per statement of votes by precinct, and
(b) 12,613 votes obtained in the appealed clustered precincts. Saquilayan
won over Maliksi by 8,429 votes. Thus, in a Resolution promulgated on 15
August 2012, the COMELEC First Division nullified the trial court’s decision
and declared Saquilayan as the duly-elected Municipal Mayor of Imus,
Cavite. The COMELEC First Division noted that Maliksi attached a
photocopy of an official ballot to his election protest. The COMELEC First
Division stated that unless one of the clustered precincts had a
photocopying machine, it could only mean that an official ballot was taken
out of the polling place to be photocopied, in violation of Section 30(a) of
COMELEC Resolution No. 8786.7The dispositive portion of the 15 August
2012 Resolution reads:
WHEREFORE, premises considered, the Commission RESOLVED, as it
hereby RESOLVES, to:
1. NULLIFY the pronouncement of the lower court that protestant-appellee
EMMANUEL L. MALIKSI is the duly-elected Municipal Mayor of Imus,
Cavite and HEREBY DECLARES HOMER T. SAQUILAYAN as the
duly-elected Municipal Mayor of the above-mentioned municipality;
2. Further, the Law Department is hereby DIRECTED:
i. To conduct an investigation as to who were responsible for the tampering
of the ballot boxes for purposes of filing the appropriate information for
violation of election laws; and
ii. To conduct an investigation as to possible violation of election laws and
Comelec Resolutions by herein protestant-appellee EMMANUEL L.
MALIKSI as to how he was able to secure a photocopy of the official ballot
which he attached in his Election Protest.
SO ORDERED.8
Maliksi filed a motion for reconsideration of the COMELEC First Division’s
Resolution and for the voluntary inhibition of Commissioners Sarmiento,
Velasco, and Lim from further acting on the case.
The Resolution of the COMELEC En Banc
In its 14 September 2012 Resolution, the COMELEC En Banc denied
Maliksi’s motion for reconsideration and affirmed the 15 August 2012
Resolution of the COMELEC First Division.
The COMELEC En Banc ruled that the COMELEC First Division did not err
in ordering the decryption, printing, and examination of the ballot images in
the CF cards instead of recounting the physical ballots. The COMELEC En
Banc stated that when the case was elevated to it on appeal, it immediately
noted an "unprecedented number of double-votes involving 8,387 ballots –
exclusively affecting the position of Mayor and specifically affecting the
ballots for Saquilayan."9 The COMELEC En Banc further noted:
x x x. Worth noting also is that these 8,387 ballots all came from 53
clustered precincts specifically pinpointed by Maliksi as his pilot precincts
(which is 20% of the total precincts he protested) – thereby affecting a total
of 33.38% or more than one-third (1/3) of the total ballots cast in those
precincts. We find this too massive to have not been detected on election
day, too specific to be random and too precise to be accidental – which
leaves a reasonable mind no other conclusion except that those 8,387 cases
of double-shading were purposely machinated. These dubious and highly
suspicious circumstances left us with no other option but to dispense with the
physical ballots and resort to their digital images. To recount the tampered
ballots will only yield us tampered results defeating the point of this appeal.10
The COMELEC En Banc also ruled that it is free to adopt procedures that will
ensure the speedy disposition of its cases as long as the parties are amply
heard on their opposing claims. The COMELEC En Banc ruled that the
decryption, printing, and examination of the ballot images in the CF cards are
not without basis since a Division, through its Presiding Commissioner, may
take such measures as he may deem proper to resolve cases pending before
it. The COMELEC En Banc ruled that Maliksi was not denied due process
because he never questioned the Order of decryption by the COMELEC First
Division nor did he raise any objection in any of his pleadings. Further, the
ballot images are not mere secondary images, as Maliksi claimed. The digital
images of the physical ballots, which are instantaneously written in the CF
cards by the PCOS11 machines the moment the ballots are read and counted,
are equivalent to the original for the purpose of the best evidence rule. The
COMELEC En Banc accorded higher evidentiary value to the ballot images
because their integrity are more secure for the following reasons:
(1) the digital images are encrypted to prevent unauthorized alteration or
access;
(2) the ballot images cannot be decrypted or in anyway accessed without the
necessary decryption key;
(3) the ballot images may only be decrypted using a special system designed
by the COMELEC and not by any ordinary operating system or computer;
(4) the CF cards storing the digital images of all the ballots used in the 10
May 2010 elections are kept in a secured facility within the Commission to
prevent unauthorized access.12
The COMELEC En Banc further ruled that the result of the revision
proceedings in the trial court could not be admitted because of the finding by
the COMELEC First Division that the recounted ballots were tampered.
The COMELEC En Banc explained:
The allegation of post-election fraud of Saquilayan was in fact confirmed by
the First Division when upon examination of the scanned digital images of all
the double-shaded ballots, they were found to bear no traces of
double-shading – instead they contain clear and unambiguous votes for
Saquilayan. This finding of the First Division proves that double-votes did not
exist when the PCOS machines counted them on election day, which in turn
proves that the ballots recounted and admitted by the trial court were
tampered and were clear products of post-election fraud. Under these
circumstances, the doctrines in Rosal v. COMELEC and Varias v. COMELEC
edict that the tampered revision result which was the basis of the appealed
decision cannot be admitted and cannot be used to overturn the the official
count.13 (Emphasis in the original; citations omitted)
Finally, the COMELEC En Banc ruled that Maliksi had no basis to call for the
inhibition of Commissioners Sarmiento and Velasco. Commissioner Lim
voluntarily inhibited himself from the case.
The dispositive portion of the COMELEC En Banc’s 14 September 2012
Resolution reads:
WHEREFORE, premises considered, the MOTION FOR
RECONSIDERATION of Protestant-Appellee EMMANUEL L. MALIKSI is
hereby DENIED for lack of merit. Consequently, we are AFFIRMING the
August 15, 2012 Resolution of the First Division NULLIFYING the November
15, 2011 Decision of the Regional Trial Court, Branch 22 of Imus, Cavite.
SO ORDERED.14
Hence, Maliksi filed the present petition before this Court.
 38
In a Resolution dated 11 October 2012, this Court issued a temporary
restraining order directing the COMELEC En Banc to desist from
implementing its 14 September 2012 Resolution.
The Issues
The overriding issue in this petition for certiorari is whether the COMELEC
En Banc committed grave abuse of discretion amounting to lack or excess
of jurisdiction in issuing its assailed Resolution dated 14 September 2012.
In resolving this issue, we shall examine:
(1) whether Maliksi was deprived of due process when the COMELEC First
Division ordered on appeal the decryption, printing, and examination of the
ballot images in the CF cards;
(2) whether the ballot images in the CF cards are mere secondary evidence
that should only be used when the physical ballots are not available;
(3) whether the issue of tampering of ballots and ballot boxes was belatedly
raised by Saquilayan; and
(4) whether there were grounds for the inhibition of Commissioners
Sarmiento and Velasco.
The Ruling of this Court
We dismiss the petition.
The Alleged Violation of Due Process
Maliksi alleged that he was denied due process when the COMELEC First
Division directed the decryption, printing, and examination of the ballot
images in the CF cards for the first time on appeal without notice to him,
thus depriving him of his right to be present and observe the decryption
proceedings.
The records point to the contrary.
In a Motion dated 21 March 2011 filed before the trial court, 15 Saquilayan
moved for the printing of the images of the ballots in the CF cards of the
contested clustered precincts. Thus, it cannot be said that Saquilayan
asked for decryption of the ballot images for the first time only on appeal.
Saquilayan had called the attention of the trial court to the unusually large
number of double-shaded ballots affecting only the position of Mayor, giving
rise to a strong suspicion of tampering of the ballots and ballot boxes.
However, the trial court did not immediately act on his motion, as shown by
Saquilayan’s Omnibus Motion To Resolve and For Issuance of
Order16 dated 14 April 2011.
In an Omnibus Order17 dated 3 May 2011, the trial court granted
Saquilayan’s motion for the printing of the ballot images in the CF cards.
The trial court gave Saquilayan a period of 30 days within which to
accomplish the printing of the ballot images. Saquilayan received a copy of
the Omnibus Order on 10 May 2011. On 11 May 2011, he sent a letter to
the COMELEC requesting it to forward at the soonest time the CF cards of
the protested precincts to the COMELEC Election Records and Statistics
Department (ERSD) to enable the decrypting and printing of the ballot
images. It turned out that the CF cards were still with the trial court. Thus, in
a Manifestation and Request18 dated 20 May 2011, Saquilayan asked the
trial court to forward the CF cards of the protested precincts to the ERSD to
enable the COMELEC to decrypt and print the ballot images.
In an Order19 dated 17 June 2011, the trial court noted that the ERSD
already specified the main and back-up CF cards that were used in the 10
May 2010 National and Local Elections in Imus, Cavite and the decryption
and copying of the ballot images was scheduled to start on 21 June 2011.
The trial court then requested the ERSD to specify the procedure that the
ERSD would undertake for the decryption of the ballot images. In a
letter20 dated 20 June 2011, Maliksi wrote the ERSD requesting that further
proceedings be deferred and held in abeyance in deference to the 17 June
2011 Order of the trial court requiring the ERSD to specify the procedure it
would undertake for the decryption.
Thereafter, Maliksi filed a Motion to Consider That Period Has Lapsed to
Print Ballot’s Picture Images,21 alleging that Saquilayan was only given a
maximum of 30 days within which to accomplish the printing of the ballot
images. Maliksi alleged that the period, which was until 22 June 2011, had
lapsed and Saquilayan should be considered barred from having access to
the electronic data in the COMELEC’s back-up server to print the ballot
images in the CF cards. The trial court granted Maliksi’s motion in its Order
dated 3 August 2011.22 The trial court stated that Saquilayan should have
included in his motion to have access to the electronic data a request for the
trial court to turn over to the COMELEC the CF cards in its possession. As it
turned out, the delay in the turn over of the CF cards likewise delayed the
printing of the ballot images in the CF cards.
It is clear from the foregoing events that the delay in the printing of the ballot
images could not be attributed to Saquilayan alone. In its 17 June 2011 Order,
the trial court set a conference on 27 June 2011 upon Maliksi’s motion to
request the ERSD to specify the procedure it would undertake in decrypting
the CF cards. Maliksi then requested for the deferment of the printing of the
ballot images in his 20 June 2011 letter to ERSD. However, during the 27
June 2011 hearing, Maliksi’s counsel filed in open court his Motion to
Consider That Period Has Lapsed to Print Ballot’s Picture Images. The trial
court acted on the motion by requiring Saguilayan’s counsel to comment
within five days. The original reason for the hearing, which was for ERSD to
specify the procedure it would undertake in decrypting the CF cards, was not
even taken up. The trial court eventually granted Maliksi’s motion and
declared that the period given to Saquilayan had lapsed. The failure of the
trial court to turn over the CF cards to the ERSD, as well as the move of
Maliksi for the ERSD to specify the procedure in decrypting the CF cards,
contributed significantly to the delay in the printing of the ballot images.
The records also showed that Maliksi was aware of the decryption, printing,
and examination of the ballot images by the COMELEC First Division. The
COMELEC First Division issued an Order23 dated 28 March 2012 directing
Saquilayan to deposit the required amount for expenses for the supplies,
honoraria, and fee for the decryption of the CF cards, and a copy of the Order
was personally delivered to Maliksi’s counsel.24 Maliksi’s counsel was
likewise given a copy of Saquilayan’s Manifestation of Compliance with the
28 March 2012 Order.25 In an Order26 dated 17 April 2012, the COMELEC
First Division directed Saquilayan to deposit an additional amount for
expenses for the printing of additional ballot images from four clustered
precincts, and a copy of the Order was again personally delivered to Maliksi’s
counsel.27 The decryption took weeks to finish.
Clearly, Maliksi was not denied due process.1âwphi1 He received notices of
the decryption, printing, and examination of the ballot images by the
COMELEC First Division. In addition, Maliksi raised his objections to the
decryption in his motion for reconsideration before the COMELEC En Banc.
The Court has ruled:
x x x. The essence of due process, we have consistently held, is simply the
opportunity to be heard; as applied to administrative proceedings, due
process is the opportunity to explain one’s side or the opportunity to seek a
reconsideration of the action or ruling complained of. A formal or trial-type
hearing is not at all times and in all instances essential. The requirement is
satisfied where the parties are afforded fair and reasonable opportunity to
explain their side of the controversy at hand. x x x.28
There is no denial of due process where there is opportunity to be heard,
either through oral arguments or pleadings.29 It is settled that "opportunity to
be heard" does not only mean oral arguments in court but also written
arguments through pleadings.30 Thus, the fact that a party was heard on his
motion for reconsideration negates any violation of the right to due
process.31 The Court has ruled that denial of due process cannot be invoked
where a party was given the chance to be heard on his motion for
reconsideration.32
Evidentiary Value of the Digital Ballot Images
 39
Maliksi assailed the use by the COMELEC First Division of the ballot can see the ciphertext, should not be able to determine anything about the
images in the CF cards. He alleged that the best and most conclusive original message. An authorized party, however, is able to decode the
evidence are the physical ballots themselves, and when they cannot be ciphertext using a decryption algorithm, that usually requires a secret
produced or when they are not available, the election returns would be the decryption key, that adversaries do not have access to."35 (Citations omitted)
best evidence of the votes cast.
Hence, the COMELEC First Division did not gravely abuse its discretion in
We do not agree. We have already ruled that the ballot images in the CF using the ballot images in the CF cards.
cards, as well as the printouts of such images, are the functional equivalent
of the official physical ballots filled up by the voters, and may be used in an
Maliksi further alleged that the ballot images in the CF cards should merely
election protest.
be considered as secondary evidence and should be resorted to only when
the physical ballots are not available or could not be produced.
In the recent consolidated cases of Vinzons-Chato v. House of
Representatives Electoral Tribunal and Panotes and Panotes v. House of
Maliksi is mistaken.
Representatives Electoral Tribunal and Vinzons-Chato,33 the Court ruled
that "the picture images of the ballots, as scanned and recorded by the
PCOS, are likewise ‘official ballots’ that faithfully capture in electronic form Rule 4 of A.M. No. 01-7-01-SC36 is clear on this issue. It states:
the votes cast by the voter, as defined by Section 2 (3) of R.A. No.
9369."34 The Court declared that the printouts of the ballot images in the CF
SECTION 1. Original of an Electronic Document. - An electronic document
cards "are the functional equivalent of the paper ballots filled out by the
shall be regarded as the equivalent of an original document under the Best
voters and, thus, may be used for purposes of revision of votes in an
Evidence Rule if it is a printout or output readable by sight or other means,
electoral protest." In short, both the ballot images in the CF cards and the
shown to reflect the data accurately.
printouts of such images have the same evidentiary value as the official
physical ballots filled up by the voters.
SECTION 2. Copies as equivalent of the originals. - When a document is in
two or more copies executed at or about the same time with identical
In Vinzons-Chato and Panotes, the Court explained in length:
contents, or is a counterpart produced by the same impression as the original,
or from the same matrix, or by mechanical or electronic recording, or by
Section 2 (3) of R.A. No. 9369 defines "official ballot" where AES is utilized chemical reproduction, or by other equivalent techniques which accurately
as the "paper ballot, whether printed or generated by the technology applied, reproduces the original, such copies or duplicates shall be regarded as the
that faithfully captures or represents the votes cast by a voter recorded or to equivalent of the original.
be recorded in electronic form."
Notwithstanding the foregoing, copies or duplicates shall not be admissible to
An automated election system, or AES, is a system using appropriate the same extent as the original if:
technology which has been demonstrated in the voting, counting,
consolidating, canvassing, and transmission of election result, and other
(a) a genuine question is raised as to the authenticity of the original; or
electoral process. There are two types of AES identified under R.A. No.
9369: (1) paper-based election system; and (2) direct recording electronic
system. A paper-based election system, such as the one adopted during (b) in the circumstances it would be unjust or inequitable to admit the copy in
the May 10, 2010 elections, is the type of AES that "use paper ballots, lieu of the original. (Emphasis supplied)
records and counts votes, tabulates, consolidates/canvasses and transmits
electronically the results of the vote count. On the other hand, direct
The ballot images, which are digital, are electronically generated and written
recording electronic election system "uses electronic ballots, records, votes
in the CF cards when the ballots are fed into the PCOS machine. The ballot
by means of a ballot display provided with mechanical or electro-optical
images are the counterparts produced by electronic recording which
component that can be activated by the voter, processes data by means of
accurately reproduce the original, and thus are the equivalent of the original.
computer programs, record voting data and ballot images, and transmits
As pointed out by the COMELEC, "the digital images of the physical ballots
voting results electronically.
are electronically and instantaneously generated by the PCOS machines
once the physical ballots are fed into and read by the machines."37 Hence,
As earlier stated, the May 10, 2010 elections used a paper-based the ballot images are not secondary evidence. The official physical ballots
technology that allowed voters to fill out an official paper ballot by shading and the ballot images in the CF cards are both original documents. The ballot
the oval opposite the names of their chosen candidates. Each voter was images in the CF cards have the same evidentiary weight as the official
then required to personally feed his ballot into the Precinct Count Optical physical ballots.
Scan (PCOS) machine which scanned both sides of the ballots
simultaneously, meaning, in just one pass. As established during the
The Court notes that Maliksi did not raise any allegation that the use of the
required demo tests, the system captured the images of the ballots in
ballot images falls under any of the exceptions under Section 2, Rule 4 of
encrypted format which, when decrypted for verification, were found to be
A.M. No. 01-7-01-SC that would make their use inadmissible as original
digitized representations of the ballots cast.
ballots.

We agree, therefore, with both the HRET and Panotes that the picture
images of the ballots, as scanned and recorded by the PCOS, are likewise
"official ballots" that faithfully captures (sic) in electronic form the votes cast
by the voter, as defined by Section 2 (3) of R.A. No. 9369. As such, the
printouts thereof are the functional equivalent of the paper ballots filled out
by the voters and, thus, may be used for purposes of revision of votes in an
electoral protest.
It bears stressing that the digital images of the ballots captured by the
PCOS machine are stored in an encrypted format in the CF cards.
"Encryption is the process of encoding messages (or information) in such a
way that eavesdroppers or hackers cannot read it, but that authorized
parties can. In an encryption scheme, the message or information (referred
to as plaintext) is encrypted using an encryption algorithm, turning it into an
unreadable ciphertext. This is usually done with the use of an encryption
key, which specifies how the message is to be encoded. Any adversary that
Tampering of Ballots and Ballot Boxes
Maliksi alleged that there was no allegation of ballot and ballot box tampering
before the trial court. He further alleged that the COMELEC First Division did
not explain how it came to the conclusion that the integrity of the ballot boxes
had been compromised or that there was ballot tampering.
The records reveal otherwise.
Contrary to Maliksi’s claim, Saquilayan questioned the integrity of the ballot
boxes and election paraphernalia before the trial court. In an Urgent
Manifestation of Concern and Objections38 dated 8 June 2010, Saquilayan
manifested his serious concern regarding the integrity of the ballot boxes and
election paraphernalia which remained under the effective control of Maliksi.
Saquilayan informed the trial court that his watchers were being limited to the
outside of the building where the ballot boxes and election paraphernalia
 40
were kept, thus preventing them from looking over the security of the ballot Yusoph did not take part in SPR (AE) No. 106-2011 does not mean he
boxes and election paraphernalia. In the same manifestation, Saquilayan should also take no part in EAC (AE) No. A-22-2011 considering that they
categorically stated that he was "questioning the integrity of the ballot boxes involve different issues.
and other election paraphernalia."39 Saquilayan also alleged in the same
manifestation that the trial court could have prescribed a procedure that
In sum, we find no grave abuse of discretion on the part of the COMELEC En
would allow his watchers to view the ballot boxes and other election
Bane when it issued the assailed Resolution of 14 September 2012.
paraphernalia that "would have prevented to some degree the tampering of
the boxes and election materials."40 Clearly, Saquilayan raised before the
trial court the issue of tampering of the ballots and ballot boxes. WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution
promulgated on 14 September 2012 by the Commission on Elections En
Bane which affirmed the 15 August 2012 Resolution of the Commission on
Further, the COMELEC En Banc clarified in its Comment 41 that the
Elections First Division declaring HOMER T. SAQUILA Y AN as the
COMELEC First Division ordered the decryption, printing, and examination
duly-elected Municipal Mayor of Imus, Cavite. We LIFT the temporary
of the digital images because the COMELEC First Division "discovered
restraining order issued on 11 October 2012. This decision is IMMEDIATELY
upon inspection that the integrity of the ballots themselves was
EXECUTORY considering that the remainder of Saquilayan' s term of office
compromised and that the ballot boxes were tampered."42 The COMELEC
is only less than five ( 5) months.
First Division properly invoked Section 6(f), Rule 2 of the COMELEC Rules
of Procedure which states:
SO ORDERED.
Sec. 6. Powers and Duties of the Presiding Commissioner. - The powers
and duties of the Presiding Commissioner of a Division when discharging its G.R. No. 123648 December 15, 1997
functions in cases pending before the Division shall be as follows:
ABDULLAH A. JAMIL, petitioner,
xxxx vs.
THE COMMISSION ON ELECTIONS, (New) MUNICIPAL BOARD OF
CANVASSERS OF SULTAN GUMANDER and ALINADER
(f) To take such other measures as he may deem proper upon consultation
BALINDONG, respondents.
with the other members of the Division.

In this case, the COMELEC En Banc categorically stated that the

recounting of the physical ballots in the revision before the trial court yielded
dubious results. The COMELEC En Banc stressed: KAPUNAN, J.:

x x x. Worth noting also is that these 8,387 ballots all came from 53
clustered precincts specifically pinpointed by Maliksi as his pilot precincts
(which is 20% of the total precincts he protested) – thereby affecting a total
of 33.38% or more than one-third (1/3) of the total ballots cast in those
precincts. We find this too massive to have not been detected on election
day, too specific to be random and too precise to be to be accidental –
which leaves a reasonable mind no other conclusion except that those
8,387 cases of double-shading were purposely machinated. These dubious
and highly suspicious circumstances left us with no other option but to
dispense with the physical ballots and resort to their digital images. To
recount the tampered ballots will only yield us tampered results defeating
the point of this appeal.43 (Emphasis supplied)
The tampering of the ballots and ballot boxes had been fully established
and it justified the decryption of the ballot images in the CF cards.
Inhibition of Commissioners Sarmiento and Velasco
Petitioner Abdullah A. Jamil and private respondent Alinader Balindong were
among the mayoralty candidates in the Municipality of Sultan Gumander,
Lanao del Sur, during the May 8, 1995 elections. Said municipality had a total
of thirty-two (32) precincts.
On May 20, 1995, during the canvassing of the election returns by the
Municipal Board of Canvassers (MBC) headed by Saadia Sansarona, private
respondent objected to the inclusion of four (4) election returns from Precinct
Nos. 5, 10-1, 20-1 and 20 on the following grounds: a) Precinct Nos. 5 and
10-1 — the election returns were prepared under duress; b) Precinct No.
20-1 — the election return was spurious, the Chairman, Poll Clerk and Third
Member of the Board of Election Inspectors did not sign the election return; c)
Precinct No. 20-the canvassed election return was not an authentic copy as
the original was missing.
On May 23, 1995, the Sansarona MBC issued its "rulings" on three (3) of the
said objections, thus:

Maliksi alleged that the COMELEC En Banc gravely abused its discretion WE, the undersigned Chairman and Members of the Board of Canvassers
when it included in the body of its 14 September 2012 Resolution a of Sultan Gumander, after deliberating on the objection to the
discussion of his motion for the inhibition of Commissioners Sarmiento and inclusion/exclusion of
Velasco instead of leaving it to their own discretion and prerogative.
ELECTION RETURN(S) NUMBER 661229 OF PRECINCT NUMBER 5
We see nothing wrong with the inclusion of the matter of inhibition in the
Resolution. Commissioners Sarmiento and Velasco signed the Resolution
of the City/Municipality of Sultan Gumander and admitting the supporting
which means they concurred with the COMELEC En Banc’s ruling that the
evidence consisting of
motion for their inhibition had no basis. Maliksi himself pointed out that the
matter of inhibition is better left to the Commissioner’s discretion and thus,
he could not impose the inhibition of Commissioners Sarmiento and EXHIBIT "A" Affidavit of Basir Sarip for petitioner; and
Velasco just because Commissioner Lim inhibited himself from the case.
Commissioners Sarmiento and Velasco are not even required, although
EXHIBIT "1" Affidavit of Basir Sarip withdrawing his previous affidavit
they are neither prohibited, to individually explain their vote or to individually
answer the motion for inhibition, like what Commissioner Lim did. In this
case, the COMELEC En Banc ruled on the motion for inhibition. Moreover, "2." Affidavit of Malic Solaiman for oppositor,
the dissent of Commissioners Lim and Velasco in SPR (AE) No. 106-2011
is not a prejudgment of EAC (AE) No. A-22-2011. While the two cases
hereby RULE as follows:
involved the same parties, the only issue in SPR (AE) No. 106-2011 is the
issuance of a temporary restraining order to stop the execution of the trial
court’s decision pending appeal. Contrary to Maliksi’s allegation, the ruling It created confusion on the part of the Board on whom to rely on the two (2)
in SPR (AE) No. 106-2011 on the temporary restraining order is not a contradicting affidavits of Basir Sarip, Chairman of Prec. No. 5, hence the
confirmation of the validity of the decision subject of the appeal in EAC (AE) election return is hereby set aside pursuant to paragraph E, Sec. 33 Comelec
No. A-22-2011. In the same manner, the fact that Commissioner Elias R. Res. No. 2756 for further investigation. 1
 41
xxx xxx xxx On May 25, 1995, the composition of the MBC was changed. Saadia
Sansarona was replaced by Casan T. Macadato as Chairman of the Board.
WE, the undersigned Chairman and Members of the Board of Canvassers
of Sultan Gumander, after deliberating on the objection to the On May 30, 1995, the Macadato MBC issued its ruling anent Election Return
inclusion/exclusion of No. 661252 of Precinct No. 20 as follows:

ELECTION RETURN(S) NUMBER 661236 WE, the undersigned Chairman and Members of the Board of Canvassers
of Sultan Gumander, after deliberating on the objection to the
inclusion/exclusion of
OF PRECINCT NUMBER 10-1

ELECTION RETURN(S) NUMBER 661252

of the City/Municipality of Sultan Gumander, and admitting the supporting
evidence consisting of
OF PRECINCT NUMBER 20
EXHIBIT "A-" Affidavit of Monaintan Maruhom
of the City/Municipality of Sultan Gumander, and admitting the supporting
evidence consisting of EXHIBIT "__"
B- ER661236

for petitioner; and

C- List of BEIs for petitioner; and

EXHIBIT "_"
EXHIBIT "1-" ER 661236

for oppositor,
2- Affidavit of Liling Adapun

hereby RULE as follows:

3- Affidavit of Farida Jamil for oppositor,

To deny the petition for the exclusion of Election Return No. 661252 for being
hereby RULE as follows:
without any factual and legal basis. And that Comelec Resolution No. 2756,
Sec. 24, says that when an Election Return is lost and destroyed, The Board
The election Return is hereby set aside to go deeper into contradicting of Canvassers upon prior authority from the Commission may use any of the
testimonies of the Chairman of Prec. No. 10-1 and watchers of the authentic copies of said return.4
respondent.2
On June 1, 1995, the Macadato Board convened and resumed its canvass
xxx xxx xxx using the Municipal Treasurer's copy of the election return from Precinct No.
20.
WE, the undersigned Chairman and Members of the Board of Canvassers
of Sultan Gumander, Lasur, after deliberating on the objection to the Said board, likewise, conducted its investigation with respect to the returns
inclusion/exclusion of from Precinct Nos. 5, 10-1 and 20-1. Said investigation yielded the report
dated June 5, 1995, to wit:
ELECTION RETURN(S) NUMBER 661251
MEMORANDUM FOR: The Honorable Chairman Commission on
Elections Manila
OF PRECINCT NUMBER 20-1

FROM: Acting Election Officer Sultan Gumander,

of the City/Municipality of Sultan Gumander Lanao Del Sur, and admitting
Lanao del Sur
the supporting evidence consisting of

DATE: June 5, 1995

EXHIBIT "A-" Affidavit of Basher Randa

S U B J E C T: INVESTIGATION REPORT
B- Appointment of Basher Randa

Respectfully forwarded to the Honorable Chairman, Commission on

C- ER No. 661251 for petitioner; and
EXHIBIT "1-" ER 661251
2- Affidavit of Baingcong Mandagla
3- Affidavit of Azisa Abdullah for oppositor,
hereby RULE as follows:
This Election returns is set aside and summons will be issued for the two (2)
BEIS who failed to affix their signatures and explain the alleged increase of
votes of a candidate and the use of unauthorized envelope without seal
containing ER and thereafter a ruling on the matter shall be rendered.3
No ruling was made with respect to Election Return No. 661252 of Precinct
20.
Elections the result of investigation in connection with Precinct Nos. 5, 10-1,
20 and 20-1.
The previous Municipal Board of Canvasser composed of Saadia Sansarona,
Saripali Benito and Ismael Maulay rendered rulings in the election returns in
Precinct Nos. 5, 10-1 and 20-1 as follows:
Precinct No. 5, ER No. 661229: SET ASIDE
a) Mr. Basir Sarip, Chairman, BEI executed two affidavits. In first affidavit
executed before Atty. Disalo, Mr. Sarip said that he was instructed to
accomplish the election return to make sure that Mayor Abdullah Amatonding
will win in the precinct. In second affidavit executed before Atty. Mortaba, Mr.
Sarip stated that he was forced to sign the first affidavit so he disown and
withdraw the first affidavit. Mr. Sarip also stated in the second affidavit that
the election in Precinct No. 5 is clean and the election return is the true result
of the election.
 42
b) On June 3, 1995, Mr. Sarip personally appeared BEFORE me and
executed sworn statement stating that he was forced by Taratingan
Balindong to sign the first affidavit at Banday, Malabang, Lanao del Sur and
was not allowed to read it. Mr. Sarip totally disowned the contents of the first
affidavit. Mr. Sarip also requested that his second affidavit contains the truth
that is that the election in Precinct 5 is clean and orderly and the election
returns contains the true result of election in Precinct No. 5 and said
election returns should be included in the canvass.
Recommendation: INCLUDE ER NO. 661229 IN THE CANVASS OF
VOTES IN SULTAN GUMANDER.
Precinct No. 10-1, ER No. 661236: SET ASIDE
a) Mrs. Monaintan Marohom, Chairman, BEI executed an affidavit that they
were ordered by Radia Balindong, Election Assistant to make sure Mayor
Abdullah Amatonding win in our precinct with threat that something will
happen if they do not follow.
b) A representative of Mayor Jamil submitted to me copy of another affidavit
of Mrs. Monaintan Marohom stating that she was forced to sign an affidavit
at the house of Mida Balindong at Campo Muslim, Malabang by her cousin
Yasser Macadato and she was not able to read it. Mrs. Marohom stated that
her first affidavit which she signed out of fear because of the threat of
Yasser Macadato is false because the truth is that the election in Precinct
10-1 is clean, orderly and honest.
c) The signature of Mrs. Marohom in her first affidavit is different from her
signature found in the election returns, while her signature in the second
affidavit executed before Atty. Mortaba is similar or identical with her
signature in the election returns.
Recommendation: INCLUDE ER NO. 661236 IN THE CANVASS
OF VOTES IN SULTAN GUMANDER NO
LEGAL BASIS TO EXCLUDE THE ELECTION
RETURNS WITH MERE AFFIDAVIT OF ONE
OF THE THREE MEMBERS OF THE BEI.
Precinct No. 20-1, ER No. 661251: SET ASIDE RULING TO BE
RENDERED AFTER BEI ARE SUMMONED
a) Mr. Basher Randa executed an affidavit that he is the Chairman of the
BEI in Precinct No. 20-1 but that when he went to the MSU Grandstand, the
election return is already being prepared by unauthorized persons.
b) Mrs. Baingcong Mandagla who appeared in the election returns to be the
Chairman of the BEI executed an affidavit that she is the Poll Clerk but that
Mr. Basir Randa did not show up when the election returns was to be
prepared so she was designated by the COMELEC Office to act as
Chairman. The appointment of Mrs. Mandagla shows the notation for her to
serve as Chairman;
c) The Poll Clerk, Monette Saripada and the third member, Azisa Abdullah
did not sign the election returns;
d) On May 26, 1995, Monette Saripada and Azisa Abdullah appeared
before the MBC and signed the election returns in the presence of the
watchers of various candidates and nobody objected to the signing of the
election returns which affirm that they are the persons who appeared in the
election returns to be the Poll Clerk and Third Member. The signing was
photographed by the representatives of Mayor Jamil.
Recommendation: INCLUDE ER NO. 661251 IN THE CANVASS OF
VOTES IN SULTAN GUMANDER.
The investigation was conducted because the previous MBC merely SET
ASIDE the three election returns for further Investigation. The newly
constituted MBC has to investigate for the guidance of higher authorities.
(Sgd.)
CASAN T. MACADATO
Chairman, Municipal Board of Canvassers5
On June 8, 1995, private respondent filed an appeal to the Commission on
Elections (COMELEC) from the ruling dated May 30, 1995 of the Macadato
Board denying his petition for exclusion of Election Return No. 661252 of
Precinct No. 20. The case was docketed as SPC No. 95-271. 6
On the same day, petitioner filed an appeal to the COMELEC challenging the
"rulings" dated May 23, 1995 of the Sansarona MBC setting aside for further
investigation or action with respect to the election returns from Precinct Nos.
5, 10-1 and 20-1. Petitioner maintained that the contested election returns
reflect the true will of the electorate. This case was docketed as SPC No.
95-272.7
On June 26, 1995, while the two (2) cases were still pending in the
COMELEC, the Macadato Board proclaimed petitioner Abdullah Jamil and
other winning candidates as the candidates obtaining the highest number of
votes in the preceding election.8
On July 11, 1995, the Second Division of the COMELEC issued the following
order, viz:
Considering the Omnibus Resolution on Pending Cases of the
Commission en banc promulgated on June 29, 1995, items 2 and 3 of which
read:
2. All cases which were filed beyond the reglementary period or not in the
form prescribed under appropriate provisions of the Omnibus Election Code,
Republic Acts No. 6646 and 7166 are hereby likewise dismissed;
3. All other pre-proclamation cases which do not fail within the class of cases
specified in paragraphs (1) and (2) immediately preceding shall be deemed
terminated pursuant to Sec. 16, R.A. 7166. Hence, all the rulings of board of
canvassers concerned are deemed affirmed. Such board of canvassers are
directed to reconvene forthwith, continue their respective canvass and
proclaim the winning candidates accordingly, if the proceedings were
suspended by virtue of pending pre-proclamation cases;
the Commission (Second Division), hereby ORDERS to note the report of the
acting Election Officer contained in SPC No. 95-271 and to consider SPC No.
95-272 TERMINATED.
WHEREFORE, the Municipal Board of Canvassers of Sultan Gumander,
Lanao del Sur is hereby DIRECTED to reconvene and proclaim the winning
candidate for mayor of the municipality of Sultan Gumander, Lanao del Sur.
SO ORDERED.9
On July 17, 1995, the Macadato Board submitted its report implementing the
July 11, 1995 Order of the Second Division of the COMELEC. Said report
reads:
Respectfully forwarded to the Honorable Chairman, Commission on
Elections, Manila, thru the Honorable Commissioner In Charge, Region XII,
the compliance of the board of canvassers with the Order dated July 11,
1995 of the Honorable Second Division, Commission on Elections in SPC
Nos. 95-271 and 95-272 directing the board of canvassers to reconvene and
proclaim the winning candidate for Mayor of Sultan Gumander, Lanao del
Sur:
A. The previous board of canvasser headed by Saadia Sansarona SET
ASIDE FOR FURTHER INVESTIGATION the election returns in Prec. Nos. 5,
10-1 and 20-a of Sultan Gumander, Lanao del Sur. The reconstituted board
of canvassers conducted an investigation and found no defect in the election
returns in the three precincts and submitted its INVESTIGATION REPORT
dated June 5, 1995 recommending the INCLUSION OF THE ELECTION
RETURNS IN PREC. NOS. 5 (661229), 10-1 (661236) and 20-1 (661252) in
the canvass, copies of the investigation report are attached as ANNEXES "A"
to "A-1" hereof.
 43
B. In addition to its report, the board of canvassers as respondent in SPC for mayor on the ground that the proclamation was without the authority of
No. 95-272 submitted its ANSWER dated June 9, 1995 indicating its the COMELEC, and to constitute a new Board of Canvassers. 11
findings in the investigation as shown by the INVESTIGATION REPORT,
and also submitted as part of its answer the SWORN STATEMENT dated
On August 24, 1995, the Second Division of the COMELEC, proceeding from
June 6, 1995 of MS. MONAINTAN MAROHOM, Chairman of Prec. No. 10-1
the premise that the election returns from Precincts Nos. 5, 10-1 and 20-1
executed before the Chairman of the board of canvassers stating under
were excluded by the Sansarona MBC applying the Omnibus Resolution of
oath that the election returns in said precinct is genuine and authentic and
the COMELEC dated June 29, 1995, 12 issued an order disposing thereby:
contains the true and correct votes of the candidates, copies of the Answer
are attached as ANNEXES "B" to "B-3" hereof and the sworn statement of
Ms. Marohom as ANNEXES "C" to "C-1" hereof. . . . the Commission (Second Division) RESOLVED, as it hereby RESOLVES
to ANNUL the proclamation of petitioner Abdullah A. Jamil made by the
Municipal Board of Canvassers of Sultan Gumander, Lanao del Sur on June
C. On June 12, 1995, MR. BASIR SARIP, Chairman of Prec. No. 5 and
10, 1995 and June 26, 1995, respectively, it being contrary to law and
MS. MONAINTAN MAROHOM, Chairman of Prec. No. 10-1 personally
jurisprudence; and, to RELIEVE the Municipal Board of Canvassers of Sultan
appeared before the HON. REMEDIOS SALAZAR-FERNANDO, Presiding
Gumander, Lanao del Sur, chaired by Mr. Casan Macadato of its duties and
Commissioner of the Second Division, COMELEC and in their SWORN
functions as such.
STATEMENTS dated June 13, 1995 affirmed before the Presiding
Commissioner, in the presence of Atty. Alioden Dalaig and Atty. Jacob
Malik, that the election returns in Prec. Nos. 5 and 10-1 respectively were ACCORDINGLY, the Regional Election Director, Region XII, Cotabato City,
genuine and authentic and contain the true and correct votes of the is hereby DIRECTED to constitute a new Municipal Board of Canvassers for
candidates, that their affidavits that were submitted by candidate Balindong the Municipality of Sultan Gumander, Lanao del Sur, which shall forthwith
to the board of canvassers was signed by them against their will for fear of RECONVENE and PROCLAIM candidate ALINADER B. ALINDONG as the
their lives and they DISOWNED or WITHDRAW all statements contained lawfully elected Mayor of the Municipality of Sultan Gumander, Lanao del
therein the same being false, and the board was furnished with copies of Sur.
said sworn statements, copies thereof are attached as ANNEXES "D" to
"D-1" (SS of Basir) and "E" to "E-1" (SS of Marohom) hereof.
SO ORDERED. 13

D. In the case of Prec. No. 20-1, the two members of the BEI who failed to
On August 31, 1995, petitioner filed an Urgent Ex-Parte Motion to Suspend
sign the election returns although they have thumbmarked the same,
Implementation of the Order dated August 24, 1995. 14
appeared before the board of canvassers and signed the election returns in
the presence of the watchers of the candidates, photographs of the signing
was submitted to the Honorable Commission through SPC No. 95-272 as On the same day, petitioner likewise filed his Motion for Reconsideration
part of the evidence therein. (With Prayer to Suspend Implementation of the Order dated August 24,
1995). 15
E. Due to the above developments, particularly the fact that Mr. Basir Sarip,
Chairman of Prec. No. 5 and Ms. Monaintan Marohom, Chairman of Prec. On September 5, 1995, pursuant to the August 24, 1995 Order of the
No. 10-1, appeared before the Honorable Presiding Commissioner of the COMELEC, the newly constituted Municipal Board of Canvassers, this time
Second Division and affirmed before her the authenticity, genuineness and headed by Darangina Cariga, proclaimed private respondent Alinader
accuracy of the election returns in Prec. Nos. 5 and 10-1, the fact that the Balindong winner in the election after having obtained a total of 2,499
two members of the BEI in Prec. No. 20-1, signed the election returns, and votes. 16
that the investigation of the board of canvassers shows that the election
returns in the three precincts has no defect, the board of canvassers in
On September 7, 1995, the COMELEC en banc issued the following
accordance with its sworn duty has to include in the canvass the election
order, viz:
returns in Prec. Nos. 5, 10-1 and 20-1.

Acting on the URGENT EX-PARTE MOTION filed on August 31, 1995 by

F. After including in the canvass the election returns in Prec. Nos. 5, 10-1
petitioner-appellant through counsel praying that an order be immediately
and 20-1, it shows that the votes in Prec. No. 10 (should be 20) which is the
issued, directing the newly constituted Municipal Board of Canvassers to
subject of appeal in SPC No. 95-271 will no longer affect the results of the
suspend the implementation of the Order of August 24, 1995, the
elections in Sultan Gumander, Lanao del Sur. Accordingly, the board of
Commission en banc, considering that a motion for reconsideration was filed
canvassers PROCLAIMED CANDIDATE ABDULLAH AL JAMIL ON JUNE
and that the entire records of these cases were already elevated to it, hereby
26, 1995 AS THE DULY ELECTED MAYOR of Sultan Gumander, Lanao
orders the newly constituted Municipal Board of Canvassers of Sultan
del Sur, copies of the Certificate of Canvass of Votes and Proclamation and
Gumander, Lanao del Sur to suspend the implementation of the order of the
the MINUTES OF THE PROCEEDINGS OF THE BOARD are attached as
Second Division dated August 24, 1995 until further orders.
ANNEXES "F" and "G" to "G-1" respectively.

G. The certificate of canvass of votes and proclamation duly signed,
thumbmarked and sealed in the prescribed envelope was submitted to the
Records and Statistics Division, COMELEC on July 5, 1995, copy of the
certificate of appearance of Casan Macadato, Chairman of the board when
he submitted the proclamation paper is attached as ANNEX "H" hereof.
In view of the above, the board of canvassers have complied with its duty to
proclaim the winning candidate for Mayor of Sultan Gumander in
accordance with the Order dated July 11, 1995.
(Sgd.) CASAN T. MACADATO (Sgd.) SARIPALI BENITO
Chairman Vice Chairman
SO ORDERED.17
On February 12, 1996, the COMELEC en banc by a vote of 3 - 3, issued a
Resolution which reads in full:
The record shows that the Commission deliberated on the motion for
reconsideration that petitioner appellant Abdullah A. Jamil (In SPC No.
95-272) filed on August 31, 1995, seeking to set aside the resolution of the
Second Division promulgated on August 24, 1995, authorizing the
reconstituted municipal board of canvassers, Sultan Gumander, Lanao del
Sur, to proclaim candidate Alinader Balindong as the lawfully elected mayor
of the said municipality.

Resolving the motion, the Commission members reached a consensus to

(SGD.) ESMAIL MAULAY
deny the petitioner Jamil's motion for reconsideration and to affirm the
Secretary 10
appealed order of the Second Division, dated August 24, 1995.

On July 24, 1995, private respondent filed an urgent motion before the
Accordingly, the Commission assigned Commissioner Gorospe to prepare
COMELEC to annul the proclamation of petitioner as the winning candidate
the corresponding resolution, which he did, and to which six (6)
Commissioners had affixed their signatures. When the resolution was
 44
referred to Commissioner Maambong, he asked for time to study the same
and to prepare his dissent, without asking for a reconsultation. He prepared
a dissenting opinion that he circulated to all the Commissioners.
Before the Commission could promulgate the majority resolution, four (4)
Commissioners, namely Commissioners Remedios A. Salazar-Fernando,
Graduacion A. Reyes Claravall, Julio F. Desamito and Teresita Dy-Liacco
Flores, indicated their desire to re-study the case. Thereafter,
Commissioners Fernando and Flores indicated that they would vote to set
aside the resolution of the second division and would join in the opinion of
Commissioner Maambong. However, Commissioner Fernando prepared
her own separate opinion. When the case was referred to Commissioner
Gorospe, he voted to affirm the appealed resolution and to maintain
his ponencia. Chairman Pardo and Commissioner Desamito voted to
continue their concurrence to the ponencia. Unfortunately, before
Commissioner Claravall could enter her final vote, she suffered a stroke
from which she did not recover and passed away on January 14, 1996.
Consequently, a this point, the members of the Commission are evenly
divided in their opinion, and pursuant to the Comelec Rules of Procedure,
the Commission re-heard the case and deliberated anew thereon After such
re-hearing and deliberation, the members was still evenly divided in opinion.
WHEREFORE, the Chairman hereby certifies that the members of the
Commission were evenly divided in their opinion on petitioner-appellant
Jamil's motion for reconsideration and pursuant to Rule 18, Section 6,
Comelec Rules of Procedure, the motion shall be DENIED.
ACCORDINGLY, the Commission hereby DENIES the motion for
reconsideration that petitioner-appellant Abdullah A. Jamil filed on August
31, 1995, and AFFIRMS the resolution of the Second Division, promulgated
on August 24, 1995.
This resolves all the pending incidents in the above cases.
SO ORDERED. 18
Hence, the present petition for certiorari brought before us contending that
the COMELEC en banc committed grave abuse of discretion in issuing its
February 12, 1996 Order because:
(a) Majority of the Commissioners-Members of the Second Division had
already decided to reverse their August 24, 1995 Order.19
(b) Petitioner's proclamation was based on complete canvass of returns
while the proclamation of private respondent was based on incomplete
returns. Thus, the proclamation of the petitioner should be sustained and
the proclamation of the private respondent must be annulled. 20
(c) The vote of Commissioner Claravall should have been considered in
favor of the petitioner considering that, before she died, she had already
expressed her opinion in favor of the petitioner. 21
From the foregoing enumeration of alleged errors committed by respondent
COMELEC, we are to resolve two issues, namely: First, which of the two (2)
proclamations made by two (2) different MBCs in Sultan Gumander, Lanao
del Sur is valid — the proclamation of petitioner Abdullah Jamil dated June
26, 1995 by the Macadato Board or the proclamation of private respondent
Alinader Balindong dated September 5, 1995 by the Cariga Board; Second,
whether the manner and procedure by which the members of respondent
COMELEC voted in the instant case was in accord with their own Rules of
Procedure.
I Macadato, chairman of the second MBC, conducted an investigation with
Petitioner Jamil insists that his proclamation by the Macadato Board as
winner in the mayoralty race of the said municipality was based on
a complete canvass, all election returns having been included therein, while
the proclamation of private respondent Balindong by the Cariga Board was
based merely on an incomplete canvass, as the three (3) election returns
from Precinct Nos. 5, 10-1 and 20-1 were excluded from the canvass. 22
We are not persuaded.
It may be recalled that after the May 8, 1995 elections, and during the
canvass of the election returns by the MBC of Sultan Gumander, Lanao del
Sur headed by Saadia Sansarona, private respondent Balindong objected to
the inclusion of four (4) election returns from Precinct Nos. 5, 10-1, 20-1 and
20 for various reasons already stated. Acting on the objections, the
Sansarona MBC issued its "rulings" on May 23, 1995 as follows: "setting
aside" the election returns from Precinct No. 5 for "further investigation;"
"setting aside" the returns from Precinct No. 10-1 "to go deeper into the
contradicting testimonies of the Chairman of Precinct No. 10-1 and the
watchers of the respondent;" and "setting aside" the election returns from
Precinct No. 20-1 in order to "summon the two BEIs who failed to affix their
signatures and explain the alleged increase of votes of a candidate and the
use of unauthorized envelope without seal containing the Election Returns
and thereafter a ruling on the matter shall be rendered." 23 No ruling was
made on the questioned election return from Precinct No. 20.
It is readily observed that the May 23, 1995 issuances cannot be considered
as "rulings" within the contemplation of law; 24 they are not definitive rulings
of exclusion by the MBC because they merely deferred the inclusion of the
election returns pending "further investigation." Hence, they are not "rulings"
of the board of canvassers that are deemed affirmed within the purview of
Comelec's Omnibus Resolution on pending cases dated June 29, 1995. 25
A few days later, Saadia Sansarona was replaced by Casan Macadato as
chairman of the MBC. Macadato, after discovering that there were no rulings
made on the disputed election returns, decided to conduct further
investigation or action as recommended in the Sansarona MBC "rulings." On
May 30, 1995, the Macadato MBC issued a ruling denying the exclusion of
the election returns from Precinct No. 20. Thereafter, Macadato submitted his
investigation report dated June 5, 1995, which he alone signed, to the
COMELEC simply recommending the inclusion of the election returns from
Precincts 5, 10-1 and 20-1 without issuing a positive ruling thereon as the
facts and circumstances would warrant.
As a consequence of the foregoing, private respondent Balindong appealed
to the COMELEC the ruling of the Macadato MBC denying the exclusion of
the election returns from Precinct No. 20, docketed as SPC No. 95-271 On
his part, petitioner Jamil appealed to the COMELEC the "rulings" of the
Sansarona MBC deferring action on the returns from Precincts 5, 10-1 and
20-1, docketed as SPC No. 95-272.
Meanwhile, on the basis of Macadato's investigation report to the COMELEC
dated June 5, 1995 which was apparently mistaken as a "ruling" for the
inclusion of the election returns from Precincts 5, 10-1 and 20-1, the
Macadato MBC on June 26, 1995 proclaimed petitioner Jamil as winner of
the mayoralty race. The proclamation was made during the pendency of the
two (2) cases before the COMELEC.
On August 24, 1995, the Second Division of the COMELEC upon private
respondent's motion, issued an order annulling the proclamation of petitioner
Jamil and directing the constitution of new MBC to proclaim private
respondent Balindong as the lawfully elected mayor of Sultan Gumander.
Against petitioner's protest, a new MBC headed by Darangina Cariga
reconvened and proclaimed private respondent Balindong winner of the May
8, 1995 elections in compliance with the COMELEC resolution of August 24,
1995. Thus, on February 12, 1996, the COMELEC en banc, in an evenly
divided (3-3) vote, resolved to deny petitioner Jamil's motion for
reconsideration.
It is our considered view that both proclamations of petitioner and private
respondent are invalid.
Clear it is that petitioner Jamil was proclaimed on June 26, 1995 after Casan
respect to the inclusion or exclusion of the returns from Precinct Nos. 5, 10-1
and 20-1 and after he submitted his investigation report, which he alone
signed, to the COMELEC on June 5, 1995 merely recommending the
inclusion of the three (3) returns in the canvass. As we have mentioned
above, said investigation report was not in form or substance a ruling of the
MBC because it did not make a definitive pronouncement or disposition
resolving the issues regarding the questioned returns but only a
recommendation to the COMELEC. There being no ruling on the inclusion or
 45
exclusion of the disputed returns, there could have been no complete and
valid canvass which is a prerequisite to a valid proclamation.
Another fatal infirmity that vitiated petitioner's proclamation was the violation
of Section 245 of the Omnibus Election Code which prohibits the
proclamation by the Board of Canvassers of a candidate as winner where
returns are contested, unless authorized by the COMELEC. 26 No authority
had been given by the COMELEC to the MBC for the proclamation of
petitioner Jamil.
The proclamation of private respondent Balindong for the same reason was
null and void, as it was not predicated on a complete and valid canvass, but
on supposed "rulings" of the Sansarona MBC which merely "set aside for
further investigation" the three (3) challenged election returns from Precinct
Nos. 5, 10-1 and 20-1. Said proclamation had clearly no basis in fact and in
law. It is a settled rule that an incomplete canvass of votes is illegal and
cannot be the basis of a valid proclamation. 27 All of the votes cast in the
election must be counted and all the returns presented to the board must be
considered as the disregard of the same would in effect disenfranchise the
voters affected. 28 A canvass cannot be reflective as the true vote of the
electorate unless all the returns are considered.29
II
On the matter of procedure, the vote of Commissioner Graduacion Claravall
could not have been considered when the COMELEC took evenly divided
(3-3) vote in its February 12, 1996 Resolution. Rule 18, Section 6 of the
1993 COMELEC Rules of Procedure clearly provides:
Sec. 6. Procedure if Opinion is Equally Divided. — When the
Commission en banc is equally divided in opinion; or the necessary majority
cannot be had, the case shall be reheard, and if rehearing no decision is
reached, the action or proceeding shall be dismissed if originally
commenced in the Commission; in appealed cases, the judgment or order
appealed from shall stand affirmed; and in all incidental matters, the petition
or motion shall be denied.
So that when COMELEC Chairman Bernardo Pardo and Commissioners
Manolo Gorospe and Julio Desamito voted to affirm the August 24, 1995
Resolution of the Second Division as against the dissent of Commissioners
Regalado Maambong, Remedios Salazar-Fernando and Teresita Dy-Liacco
Flores, no rules were breached as the motion for reconsideration was
deemed denied for having failed to get a majority vote in accordance with
the foregoing rule.
Moreover, it is immaterial whether Commissioner Claravall allegedly
expressed or signified her intention to vote for the granting of the motion for
reconsideration and thereafter affixed her signature on the questioned
resolutions. We take judicial notice of the fact that Commissioner Claravall
passed away on January 14, 1996, clearly twenty-nine (29) days prior to the
promulgation of the questioned resolution on February 12, 1996. A public
official ceases to hold office upon his death and all his rights, duties and
obligations pertinent to the office are extinguished thereby. A decision
becomes binding only after it is validly promulgated. Consequently, if at the
time of the promulgation of a decision or resolution, a judge or a member of
the collegiate court who had earlier signed or registered his vote, has
vacated his office, his vote is automatically withdrawn or cancelled.
The reason for the rule, which is logically applicable to decisions of
constitutional commissions and administrative bodies or agencies, is
cogently expressed in the case of Consolidated Bank and Trust Corporation
v. Intermediate Appellate Court: 30
xxx xxx xxx
A decision becomes binding only after it is validly promulgated and not
before. As we said only recently in In re Emiliano Jurado, "a decision or
resolution of the Court becomes such, for all legal intents and purposes,
only from the moment of its promulgation." According to Chief Justice
Moran in the landmark case of Araneta v. Dinglasan:
Accordingly, one who is no longer a member of this Court at the time a
decision is signed and promulgated, cannot validly take part in that decision.
As above indicated, the true decision of the Court is the decision signed by
the Justices and duly promulgated. Before that decision is so signed and
promulgated, there is no decision of the Court to speak of. The vote cast by a
member of the Court after the deliberation is always understood to be subject
to confirmation at the time he has to sign the decision that is to be
promulgated. That vote is of no value if it is not thus confirmed by the Justice
casting it. The purpose of this practice is apparent. Members of this Court,
even after they have cast their votes, wish to preserve their freedom of action
till the last moment when they have to sign the decision, so that they may
take full advantage of what they may believe to be the best fruit of their most
mature reflection and deliberation. In consonance with this practice, before a
decision is signed and promulgated, all opinions and conclusions stated
during and after the deliberation of the Court, remain in the breasts of the
Justices, binding upon no one, not even upon the Justice themselves. Of
course, they may serve for determining what the opinion of the majority
provisionally is and for designating a member to prepare the decision of the
Court, but in no way is that decision binding unless and until signed and
promulgated.
We add that at any time before promulgation, the ponencia may be changed
by theponente. Indeed, if any member of the court who may have already
signed it so desires, he may still withdraw his concurrence and register a
qualification or dissent as long as the decision has not yet been promulgated.
A promulgation signifies that on the date it was made the judge or judges
who signed the decision continued to support it.
If at the time of the promulgation, a judge or a member of a collegiate court
has already vacated his office, his vote is automatically withdrawn. This was
that happened in the Araneta case, where Justice Gregorio Perfecto's
signature on the original decision was disregarded when he died before it
could be promulgated. The decision remained valid, however, because it was
still supported by a majority of the Supreme Court then, and, no less
importantly, Justice Perfecto was not the ponente.
xxx xxx xxx 31
In fine, while it was correct for the COMELEC in its Order of August 24, 1995
(1) to annul the proclamation of petitioner Jamil for being null and void 32 and
(2) to order the constitution of a new board of canvassers, it committed grave
abuse of discretion in directing the proclamation of private respondent
Balindong for the reasons abovestated.
WHEREFORE, premises considered, judgment is hereby rendered as
follows:
1.) Sustaining the Order of the COMELEC dated August 24, 1995 annulling
the proclamation of petitioner Abdullah A. Jamil as Mayor of Sultan
Gumander, Lanao del Sur;
2.) Declaring the proclamation of private respondent Alinader Balindong as
Mayor of Sultan Gumander, Lanao del Sur, null and void;
3.) Ordering the COMELEC to resolve with dispatch the pending incidents in
SPC No. 95-271 and SPC No. 95-272, i.e., rule on the objection of inclusion
and/or exclusion brought to it on appeal and immediately thereafter, to create
a Special Municipal Board of Canvassers to proclaim, after proper canvass,
the mayor-elect of Sultan Gumander, Lanao del Sur.
The temporary restraining order issued by this Court on February 20, 1996 is
ordered LIFTED.
SO ORDERED.
G.R. No. 137266 December 5, 2001
ANTONIO M. BERNARDO, ERNESTO A. DOMINGO, JR. and JESUS C.
CRUZ, petitioners,
vs.
BENJAMIN S. ABALOS, SR., BENJAMIN "BENHUR" D. ABALOS, JR.,
 46
DR. EDEN C. DIAZ, ROMEO F. ZAPANTA, ARCADIO S. DE VERA and The Director4 of the Law Department of the COMELEC conducted a
THE COMMISSION ON ELECTIONS, respondents. preliminary investigation. All the private respondents filed separate
counter-affidavits5 with prayer to dismiss the complaint.
SANDOVAL-GUTIERREZ, J.:
On November 26, 1998, the Director of the Law Department submitted his
findings to the COMELEC En Bancrecommending that the complaint be
This is a petition for certiorari1 seeking the nullification of Resolution No.
dismissed for insufficiency of evidence.
98-3208 of the Commission on Elections (COMELEC) En
Banc promulgated on December 1, 1998 dismissing the complaint for vote
buying filed by petitioners against respondents.1âwphi1.nêt On December 1, 1998, the COMELEC En Banc issued the assailed
Resolution No. 98-32086 dismissing the complaint "for insufficiency of
evidence to establish a prima facie case,"
On April 21, 1998, petitioners Antonio M. Bernardo M. Bernardo, Ernesto A.
Domingo, Jr. and Jesus C. Cruz filed with the COMELEC a criminal
complaint against respondents Benjamin S. Abalos, Sr., Benjamin C. "Considering that this complaint, being criminal in nature, must have all its
Abalos, Jr., Dr. Eden C. Diaz, Romeo Zapanta and Arcadio de Vera for vote allegations supported by direct, strong, convincing and indubitable evidence;
buying in violation of Section 261, paragraphs (a), (b) and (j) of the Omnibus and that the submitted evidence of the complainant are mere self-serving
Election Code (OEC), in relation to Section 28 of Republic Act 6646 and statements and uncorroborated audio and visual recordings and a
Section 68 of the OEC. The complaint, docketed as E.O. Case No. photograph; and considering further that the evidence of the respondents
98-110,2 alleged that: have more probative value and believable than the evidence of said
complainants; and that the burden of proof lies with the complainants and not
with respondents."7
1. On April 14, 1998 (Tuesday), respondent Mandaluyong City Mayor
Benjamin S. Abalos, Sr., and his son respondent Benjamin "Benhur" C.
Abalos, Jr., candidate for City Mayor of the same city in the May 11, 1998 On February 09, 1999, petitioners, without first submitting a motion for
elections, conspiring with respondents Dr. Eden C. Diaz, Schools Division reconsideration, filed the instant petition with this Court.
Superintendent, Romeo F. Zapanta, Assistant Schools Division
Superintendent, and Arcadio de Vera, President, Mandaluyong Federation
They alleged thereon that the COMELEC En Banc, in issuing Resolution No.
of Public School Teachers, sponsored, arranged and conducted an
98-3208 dated December 1, 1998, acted "with apparent grave abuse of
all-expense-free transportation, food and drinks affair for the Mandaluyong
dicretion."8
City public school teachers, registered voters of said city, at the Tayabas
Bay Beach Resort, Sariaya, Quezon Province.
The petition must fail.
2. Among the identified public school teachers present, brought in around
twelve (12) buses, were Corazon Mayoya, principal of Highway Hills Petitioners did not exhaust all the remedies available to them at the
Elementary School, her Assistant Principal of Highway Hills Elementary COMELEC level. Specifically, they did not seek a reconsideration of the
School, her Assistant Principal and Mr. Dante del Remigio; Mrs. Diaz assailed COMELEC En Banc Resolution as required by Section 1, Rule 13 of
Principal of Mandaluyong City High School and Mr. Alvia; Mrs. Parillo, the 1993 COMELEC Rules of Procedure, thus:
Andres Bonifacio Elementary School; Mrs. Gregoria Ignacio, Principal of
Doña Pilar Gonzaga Elementary School; Ms. Magsalin, Principal of
"Section 1. What Pleadings are not Allowed. - The following pleadings are not
Mandaluyong Science High School and Mrs. Rita Bondayril; Mrs. De Vera,
allowed:
Fabella Elementary School; Ms. Anselmo, Principal of Isaac Lopez
Elementary School and Mrs. Fayton; Mrs. Sylvia Liwanag, District
Supervisor, District II, Mrs. Nalaonan, Principal of Amado T. Reyes xxx
Elementary School; Mrs. Teresita Vicencio, Mandaluyong City Elemtary
School; Officers of the Mandaluyong Federation of Public School Teachers
d) motion for reconsideration of an en banc ruling, resolution, order or
namely; Mrs. Erlinda Ilagan, Treasurer; Ms. Nancy de Leon, Auditor; Ms.
decision except in election offense cases;
Fortunata Gondran, PRO; Mr. Nenito Pumariga, Business Manager; Mr.
Jose Guerrero, Sgt.-at-arms; and Board Members Ms. Virginia Carillo, Ms.
Wilma Fernandez, Mr Arturo Morales and Mr. Teddy Angeles. x x x." (Emphasis ours)

3. During the whole-day affair, the background music loudly and repeatedly It is not disputed that petitioners' complaint before the COMELEC involves an
played over the sound system was the political jingle advertisement of election offense. But in this petition, they conveniently kept silent why they
Mandaluyong City candidate for Mayor, Benjamin "Benhur" Abalos, Jr., directly elevated to this Court the questioned Resolution without first filing a
sang to the tune of the song 'SHALALA LALA'. motion for reconsideration with the COMELEC En Banc. It was only after the
respondents had filed their comment on the petition and called this Court's
attention to petitioners' failure to comply with Section 1 of Rule 13 that they,
4. Some of the participants wore T-shirts with the name of candidate
in their Consolidated Reply, advanced the excuse that they "deemed it best
"Benhur" Abalos, Jr., printed in oversized colored letters.
not seek any further dilatory motion for reconsideration' …, even if allowed
by Sec. 1 (d) of COMELEC Rule 13."9
5. Mayor Benjamin Abalos, Sr. delivered a speech wherein he offered and
promised the Mandaluyong City public school teachers and employees a
Petitioners' failure to file the required motion for reconsideration utterly
"hazard" pay of P1,000.00, and increasing their allowances from P1,500.00
disregarded the COMELEC Rules intended "to achieve
to P2,000.00 for food, or with a total of P3,000.00 which they will get by the
an orderly, just, expeditious and inexpensive determination and
end of the month.
disposition of every action and proceeding brought before the
Commission."10
6. The offers and promises to said public school teachers, who are
members of the Board of Election Inspectors of Mandaluyong City and
Contrary to petitioners' statement that a resort to a motion for reconsideration
registered voters thereat, were made a few weeks before the election to
is "dilatory, " it bears stressing that the purpose of the said motion is to give
induce or unduly influence the said teachers and the public in general (the
the COMELEC an opportunity to correct the error imputed to it. 11 If the error
other guests) to vote for the candidacy of Benjamin "Benhur" Abalos, Jr.,
is immediately corrected by way of a motion for reconsideration, then it is the
most expeditious and inexpensive recourse. But if the COMELEC refuses to
7. The offers and promises of Mayor Abalos, Sr., and the enthusiastic correct a patently erroneous act, then it commits a grave abuse of discretion
acceptance of said monetary increase of allowances by the public school justifying a recourse by the aggrieved party to a petition for certiorari.
teachers and employees of Mandaluyong City, is a violation of Section 261
pars. (a), (b) and (j) of the Omnibus Election Code against vote-buying and
vote-selling.3
 47
A petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure,
as amended, can only be resorted to if "there is no appeal, or any plain,
speedy, and adequate remedy in the ordinary course of law."12 Having
failed to file the required motion for reconsideration of the challenged
Resolution, petitioners' instant petition is certainly premature.13 Significantly,
they have not raised any plausible reason for their direct recourse to this
Court.
In its assailed Resolution, the COMELEC cited a valid reason for dismissing
petitioners' complaint against private respondents for vote buying. The
COMELEC found that the evidence of the respondents have "more
probative value and believable than the evidence of the complainants;" and
that the evidence submitted by petitioners are "mere self-serving
statements and uncorroborated audio and visual recording and a
photograph."
Moreover, Section 28 of Republic Act 6646 provides:
"SEC. 28. Prosecution of Vote-buying and Vote-selling. - The
representation of a complaint for violations of paragraph (a) or (b) of Section
261 of Batas Pambansa Blg. 881 supported by affidavits of complaining
witnesses attesting to the offer or promise by or of the voter's
acceptance of money or other consideration from the relatives,
leaders or sympathizers of candidate, shall be sufficient basis for an
investigation to be immediately conducted by the Commission, directly or
through its duly authorized legal officers, under Section 68 or Section 265 of
said Batas Pambansa Blg. 881.1âwphi1.nêt
x x x." (Emphasis ours)
Petitioners' complaint expressly states that no supporting affidavits were
submitted by the complaining witness14 to sustain their charge of vote
buying. Suffice it to state that the absence of such supporting affidavits
shows the frailty of petitioners' complaint. Indeed, it is vulnerable to
dismissal.
WHEREFORE, the instant petition is DISMISSED.
SO ORDERED.
G.R. No. 151914 July 31, 2002
TEODULO M. COQUILLA, petitioner,
vs.
THE HON. COMMISSION ON ELECTIONS and MR. NEIL M.
ALVAREZ, respondents.
MENDOZA, J.:
This is a petition for certiorari to set aside the resolution,1dated July 19,
2001, of the Second Division of the Commission on Elections (COMELEC),
ordering the cancellation of the certificate of candidacy of petitioner Teodulo
M. Coquilla for the position of mayor of Oras, Eastern Samar in the May 14,
2001 elections and the order, dated January 30, 2002, of the COMELEC en
banc denying petitioner’s motion for reconsideration.
The facts are as follows:
Petitioner Coquilla was born on February 17, 1938 of Filipino parents in
Oras, Eastern Samar. He grew up and resided there until 1965, when he
joined the United States Navy. He was subsequently naturalized as a U.S.
citizen.2 From 1970 to 1973, petitioner thrice visited the Philippines while on
leave from the U.S. Navy.3 Otherwise, even after his retirement from the
U.S. Navy in 1985, he remained in the United States.
On October 15, 1998, petitioner came to the Philippines and took out a
residence certificate, although he continued making several trips to the
United States, the last of which took place on July 6, 2000 and lasted until
August 5, 2000.4 Subsequently, petitioner applied for repatriation under R.A.
No. 81715 to the Special Committee on Naturalization. His application was
approved on November 7, 2000, and, on November 10, 2000, he took his
oath as a citizen of the Philippines. Petitioner was issued Certificate of
Repatriation No. 000737 on November 10, 2000 and Bureau of Immigration
Identification Certificate No. 115123 on November 13, 2000.
On November 21, 2000, petitioner applied for registration as a voter of
Butnga, Oras, Eastern Samar. His application was approved by the Election
Registration Board on January 12, 2001.6 On February 27, 2001, he filed his
certificate of candidacy stating therein that he had been a resident of Oras,
Eastern Samar for "two (2) years."7
On March 5, 2001, respondent Neil M. Alvarez, who was the incumbent
mayor of Oras and who was running for reelection, sought the cancellation of
petitioner’s certificate of candidacy on the ground that the latter had made a
material misrepresentation in his certificate of candidacy by stating that he
had been a resident of Oras for two years when in truth he had resided
therein for only about six months since November 10, 2000, when he took his
oath as a citizen of the Philippines.
The COMELEC was unable to render judgment on the case before the
elections on May 14, 2001. Meanwhile, petitioner was voted for and received
the highest number of votes (6,131) against private respondent’s 5,752 votes,
or a margin of 379 votes. On May 17, 2001, petitioner was proclaimed mayor
of Oras by the Municipal Board of Canvassers.8 He subsequently took his
oath of office.
On July 19, 2001, the Second Division of the COMELEC granted private
respondent’s petition and ordered the cancellation of petitioner’s certificate of
candidacy on the basis of the following findings:
Respondent’s frequent or regular trips to the Philippines and stay in Oras,
Eastern Samar after his retirement from the U.S. Navy in 1985 cannot be
considered as a waiver of his status as a permanent resident or immigrant . . .
of the U.S.A. prior to November 10, 2000 as would qualify him to acquire the
status of residency for purposes of compliance with the one-year residency
requirement of Section 39(a) of the Local Government Code of 1991 in
relation to Sections 65 and 68 of the Omnibus Election Code. The one (1)
year residency requirement contemplates of the actual residence of a Filipino
citizen in the constituency where he seeks to be elected.
All things considered, the number of years he claimed to have resided or
stayed in Oras, Eastern Samar since 1985 as an American citizen and
permanent resident of the U.S.A. before November 10, 2000 when he
reacquired his Philippine citizenship by [repatriation] cannot be added to his
actual residence thereat after November 10, 2000 until May 14, 2001 to cure
his deficiency in days, months, and year to allow or render him eligible to run
for an elective office in the Philippines. Under such circumstances, by
whatever formula of computation used, respondent is short of the one-year
residence requirement before the May 14, 2001 elections.9
Petitioner filed a motion for reconsideration, but his motion was denied by the
COMELEC en banc on January 30, 2002. Hence this petition.
I.
Two questions must first be resolved before considering the merits of this
case: (a) whether the 30-day period for appealing the resolution of the
COMELEC was suspended by the filing of a motion for reconsideration by
petitioner and (b) whether the COMELEC retained jurisdiction to decide this
case notwithstanding the proclamation of petitioner.
A. With respect to the first question, private respondent contends that
the petition in this case should be dismissed because it was filed late; that the
COMELEC en banc had denied petitioner’s motion for reconsideration for
being pro forma; and that, pursuant to Rule 19, §4 of the COMELEC Rules of
Procedure, the said motion did not suspend the running of the 30-day period
for filing this petition. He points out that petitioner received a copy of the
resolution, dated July 19, 2001, of the COMELEC’s Second Division on July
28, 2001, so that he had only until August 27, 2001 within which to file this
petition. Since the petition in this case was filed on February 11, 2002, the
 48
same should be considered as having been filed late and should be
dismissed.
Private respondent’s contention has no merit.
Rule 19 of the COMELEC Rules of Procedure provides in pertinent parts:
Sec. 2. Period for Filing Motions for Reconsideration. – A motion to
reconsider a decision, resolution, order, or ruling of a Division shall be filed
within five days from the promulgation thereof. Such motion, if not pro-forma,
suspends the execution for implementation of the decision, resolution, order,
or ruling.
Sec. 4. Effect of Motion for Reconsideration on Period to Appeal. – A
motion to reconsider a decision, resolution, order, or ruling, when not
pro-forma, suspends the running of the period to elevate the matter to the
Supreme Court.
The five-day period for filing a motion for reconsideration under Rule 19, §2
should be counted from the receipt of the decision, resolution, order, or
ruling of the COMELEC Division.10 In this case, petitioner received a copy
of the resolution of July 19, 2001 of the COMELEC’s Second Division on
July 28, 2001. Five days later, on August 2, 2001, he filed his motion for
reconsideration. On February 6, 2002, he received a copy of the order,
dated January 30, 2002, of the COMELEC en banc denying his motion for
reconsideration. Five days later, on February 11, 2002, he filed this petition
for certiorari. There is no question, therefore, that petitioner’s motion for
reconsideration of the resolution of the COMELEC Second Division, as well
as his petition for certiorari to set aside of the order of the COMELEC en
banc, was filed within the period provided for in Rule 19, §2 of the
COMELEC Rules of Procedure and in Art. IX(A), §7 of the Constitution.
It is contended, however, that petitioner’s motion for reconsideration before
the COMELEC en banc did not suspend the running of the period for filing
this petition because the motion was pro forma and, consequently, this
petition should have been filed on or before August 27, 2001. It was actually
filed, however, only on February 11, 2002. Private respondent cites the
finding of the COMELEC en banc that —
An incisive examination of the allegations in the Motion for Reconsideration
shows that the same [are] a mere rehash of his averments contained in
his Verified Answer and Memorandum. Neither did respondent raise new
matters that would sufficiently warrant a reversal of the assailed resolution
of the Second Division. This makes the said Motion pro forma.11
We do not think this contention is correct. The motion for reconsideration
was not pro forma and its filing did suspend the period for filing the petition
for certiorari in this case. The mere reiteration in a motion for
reconsideration of the issues raised by the parties and passed upon by the
court does not make a motion pro forma; otherwise, the movant’s remedy
would not be a reconsideration of the decision but a new trial or some other
remedy.12 But, as we have held in another case:13
Among the ends to which a motion for reconsideration is addressed, one is
precisely to convince the court that its ruling is erroneous and improper,
contrary to the law or the evidence; and in doing so, the movant has to dwell
of necessity upon the issues passed upon by the court. If a motion for
reconsideration may not discuss these issues, the consequence would be
that after a decision is rendered, the losing party would be confined to filing
only motions for reopening and new trial.
Indeed, in the cases where a motion for reconsideration was held to be pro
forma, the motion was so held because (1) it was a second motion for
reconsideration,14 or (2) it did not comply with the rule that the motion must
specify the findings and conclusions alleged to be contrary to law or not
supported by the evidence,15 or (3) it failed to substantiate the alleged
errors,15 or (4) it merely alleged that the decision in question was contrary to
law,17 or (5) the adverse party was not given notice thereof. 18 The 16-page
motion for reconsideration filed by petitioner in the COMELEC en
banc suffers from none of the foregoing defects, and it was error for the
COMELEC en banc to rule that petitioner’s motion for reconsideration was
pro forma because the allegations raised therein are a mere "rehash" of his
earlier pleadings or did not raise "new matters." Hence, the filing of the
motion suspended the running of the 30-day period to file the petition in this
case, which, as earlier shown, was done within the reglementary period
provided by law.
B. As stated before, the COMELEC failed to resolve private respondent’s
petition for cancellation of petitioner’s certificate of candidacy before the
elections on May 14, 2001. In the meantime, the votes were canvassed and
petitioner was proclaimed elected with a margin of 379 votes over private
respondent. Did the COMELEC thereby lose authority to act on the petition
filed by private respondent?
R.A. No. 6646 provides:
SECTION 6. Effect 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 his guilt is strong. (Emphasis
added)
SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of
Candidacy. — The procedure hereinabove provided shall apply to petitions to
deny due course to or cancel a certificate of candidacy as provided in Section
78 of Batas Pambansa Blg. 881.
The rule then is that candidates who are disqualified by final judgment before
the election shall not be voted for and the votes cast for them shall not be
counted. But those against whom no final judgment of disqualification had
been rendered may be voted for and proclaimed, unless, on motion of the
complainant, the COMELEC suspends their proclamation because the
grounds for their disqualification or cancellation of their certificates of
candidacy are strong. Meanwhile, the proceedings for disqualification of
candidates or for the cancellation or denial of certificates of candidacy, which
have been begun before the elections, should continue even after such
elections and proclamation of the winners. In Abella v.
COMELEC19 and Salcedo II v. COMELEC,20 the candidates whose
certificates of candidacy were the subject of petitions for cancellation were
voted for and, having received the highest number of votes, were duly
proclaimed winners. This Court, in the first case, affirmed and, in the second,
reversed the decisions of the COMELEC rendered after the proclamation of
candidates, not on the ground that the latter had been divested of jurisdiction
upon the candidates’ proclamation but on the merits.
II.
On the merits, the question is whether petitioner had been a resident of Oras,
Eastern Samar at least one (1) year before the elections held on May 14,
2001 as he represented in his certificate of candidacy. We find that he had
not.
First, §39(a) of the Local Government Code (R.A No. 7160) provides:
Qualifications. - (a) An elective local official must be a citizen of the
Philippines; a registered voter in the barangay, municipality, city, or province
or, in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod, or sangguniang bayan, the district where he intends to be
elected; a resident therein for at least one (1) year immediately preceding the
day of the election; and able to read and write Filipino or any other local
language or dialect. (Emphasis added)
The term "residence" is to be understood not in its common acceptation as
referring to "dwelling" or "habitation,"21but rather to "domicile" or legal
residence,22 that is, "the place where a party actually or constructively has his
permanent home, where he, no matter where he may be found at any given
time, eventually intends to return and remain (animus manendi)."23 A
domicile of origin is acquired by every person at birth. It is usually the place
where the child’s parents reside and continues until the same is abandoned
by acquisition of new domicile (domicile of choice).24
 49
In the case at bar, petitioner lost his domicile of origin in Oras by becoming
a U.S. citizen after enlisting in the U.S. Navy in 1965. From then on and until
November 10, 2000, when he reacquired Philippine citizenship, petitioner
was an alien without any right to reside in the Philippines save as our
immigration laws may have allowed him to stay as a visitor or as a resident
alien.
Indeed, residence in the United States is a requirement for naturalization as
a U.S. citizen. Title 8, §1427(a) of the United States Code provides:
Requirements of naturalization. – Residence
(a) No person, except as otherwise provided in this subchapter, shall be
naturalized unless such applicant, (1) immediately preceding the date of
filing his application for naturalization has resided continuously, after being
lawfully admitted for permanent residence, within the United States for at
least five years and during the five years immediately preceding the date of
filing his petition has been physically present therein for periods totaling at
least half of that time, and who has resided within the State or within the
district of the Service in the United States in which the applicant filed the
application for at least three months, (2) has resided continuously within the
United States from the date of the application up to the time of admission to
citizenship, and (3) during all the period referred to in this subsection has
been and still is a person of good moral character, attached to the principles
of the Constitution of the United States, and well disposed to the good order
and happiness of the United States. (Emphasis added)
In Caasi v. Court of Appeals,25 this Court ruled that immigration to the
United States by virtue of a "greencard," which entitles one to reside
permanently in that country, constitutes abandonment of domicile in the
Philippines. With more reason then does naturalization in a foreign country
result in an abandonment of domicile in the Philippines.
Nor can petitioner contend that he was "compelled to adopt American
citizenship" only by reason of his service in the U.S. armed forces. 26 It is
noteworthy that petitioner was repatriated not under R.A. No. 2630, which
applies to the repatriation of those who lost their Philippine citizenship by
accepting commission in the Armed Forces of the United States, but under
R.A. No. 8171, which, as earlier mentioned, provides for the repatriation of,
among others, natural-born Filipinos who lost their citizenship on account of
political or economic necessity. In any event, the fact is that, by having been
naturalized abroad, he lost his Philippine citizenship and with it his
residence in the Philippines. Until his reacquisition of Philippine citizenship
on November 10, 2000, petitioner did not reacquire his legal residence in
this country.
Second, it is not true, as petitioner contends, that he reestablished
residence in this country in 1998 when he came back to prepare for the
mayoralty elections of Oras by securing a Community Tax Certificate in that
year and by "constantly declaring" to his townmates of his intention to seek
repatriation and run for mayor in the May 14, 2001 elections.27 The status of
being an alien and a non-resident can be waived either separately, when
one acquires the status of a resident alien before acquiring Philippine
citizenship, or at the same time when one acquires Philippine citizenship.
As an alien, an individual may obtain an immigrant visa under §1328 of the
Philippine Immigration Act of 1948 and an Immigrant Certificate of
Residence (ICR)29 and thus waive his status as a non-resident. On the
other hand, he may acquire Philippine citizenship by naturalization under
C.A. No. 473, as amended, or, if he is a former Philippine national, he may
reacquire Philippine citizenship by repatriation or by an act of Congress,30 in
which case he waives not only his status as an alien but also his status as a
non-resident alien.
In the case at bar, the only evidence of petitioner’s status when he entered
the country on October 15, 1998, December 20, 1998, October 16, 1999,
and June 23, 2000 is the statement "Philippine Immigration [–] Balikbayan"
in his 1998-2008 U.S. passport. As for his entry on August 5, 2000, the
stamp bore the added inscription "good for one year stay."31 Under §2 of
R.A. No. 6768 (An Act Instituting a Balikbayan Program), the
term balikbayan includes a former Filipino citizen who had been naturalized
in a foreign country and comes or returns to the Philippines and, if so, he is
entitled, among others, to a "visa-free entry to the Philippines for a period of
one (1) year" (§3(c)). It would appear then that when petitioner entered the
country on the dates in question, he did so as a visa-free balikbayan visitor
whose stay as such was valid for one year only. Hence, petitioner can only
be held to have waived his status as an alien and as a non-resident only on
November 10, 2000 upon taking his oath as a citizen of the Philippines under
R.A. No. 8171.32 He lacked the requisite residency to qualify him for the
mayorship of Oras, Eastern, Samar.
Petitioner invokes the ruling in Frivaldo v. Commission on Elections33 in
support of his contention that the residency requirement in §39(a) of the
Local Government Code includes the residency of one who is not a citizen of
the Philippines. Residency, however, was not an issue in that case and this
Court did not make any ruling on the issue now at bar. The question
in Frivaldo was whether petitioner, who took his oath of repatriation on the
same day that his term as governor of Sorsogon began on June 30, 1995,
complied with the citizenship requirement under §39(a). It was held that he
had, because citizenship may be possessed even on the day the candidate
assumes office. But in the case of residency, as already noted, §39(a) of the
Local Government Code requires that the candidate must have been a
resident of the municipality "for at least one (1) year immediately preceding
the day of the election."
Nor can petitioner invoke this Court’s ruling in Bengzon III v. House of
Representatives Electoral Tribunal.34 What the Court held in that case was
that, upon repatriation, a former natural-born Filipino is deemed to have
recovered his original status as a natural-born citizen.
Third, petitioner nonetheless says that his registration as a voter of Butnga,
Oras, Eastern Samar in January 2001 is conclusive of his residency as a
candidate because §117 of the Omnibus Election Code requires that a voter
must have resided in the Philippines for at least one year and in the city or
municipality wherein he proposes to vote for at least six months immediately
preceding the election. As held in Nuval v. Guray,35 however, registration as
a voter does not bar the filing of a subsequent case questioning a candidate’s
lack of residency.
Petitioner’s invocation of the liberal interpretation of election laws cannot
avail him any. As held in Aquino v. Commission on Elections:36
A democratic government is necessarily a government of laws. In a
republican government those laws are themselves ordained by the people.
Through their representatives, they dictate the qualifications necessary for
service in government positions. And as petitioner clearly lacks one of the
essential qualifications for running for membership in the House of
Representatives, not even the will of a majority or plurality of the voters of the
Second District of Makati City would substitute for a requirement mandated
by the fundamental law itself.
Fourth, petitioner was not denied due process because the COMELEC failed
to act on his motion to be allowed to present evidence. Under §5(d), in
relation to §7, of R.A. No. 6646 (Electoral Reforms Law of 1987),
proceedings for denial or cancellation of a certificate of candidacy are
summary in nature. The holding of a formal hearing is thus not de rigeur. In
any event, petitioner cannot claim denial of the right to be heard since he filed
a Verified Answer, a Memorandum and a Manifestation, all dated March 19,
2001, before the COMELEC in which he submitted documents relied by him
in this petition, which, contrary to petitioner’s claim, are complete and intact in
the records.
III.
The statement in petitioner’s certificate of candidacy that he had been a
resident of Oras, Eastern Samar for "two years" at the time he filed such
certificate is not true. The question is whether the COMELEC was justified in
ordering the cancellation of his certificate of candidacy for this reason. We
hold that it was. Petitioner made a false representation of a material fact in
his certificate of candidacy, thus rendering such certificate liable to
cancellation. The Omnibus Election Code provides:
SEC. 74. Contents of certificate of candidacy. – The certificate of candidacy
shall state that the person filing it is announcing his candidacy for the office
stated therein and that he is eligible for said office; if for Member of the
Batasang Pambansa, the province, including its component cities, highly
urbanized city or district or sector which he seeks to represent; the political
party to which he belongs; civil status; his date of birth; residence; his post
 50
office address for all election purposes; his profession or occupation; that 3. Edmundo P. Sano 8,720
he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal
4. Clementino Rudas 8,277
orders, and decrees promulgated by the duly constituted authorities; that he
is not a permanent resident or immigrant to a foreign country; that the
obligation imposed by his oath is assumed voluntarily, without mental 5. Francis Raymundo Realino 8,173
reservation or purpose of evasion; and that the facts stated in the certificate
of candidacy are true to the best of his knowledge.
6. Carmelita P. Piscos 7,898

SEC. 78. Petition to deny due course to or cancel a certificate of candidacy.

7. Marcelo G. Ganoza 7,835
– A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74 8. Dioscoro O. Angelia 7,765
hereof is false. The petition may be filed at any time not later than
twenty-five days from the time of the filing of the certificate of candidacy and
Private respondent, who received a total of 7,761 votes — four votes less
shall be decided, after due notice and hearing, not later than fifteen days
than those obtained by petitioner — ranked ninth among the candidates.
before the election.

Indeed, it has been held that a candidate’s statement in her certificate of
candidacy for the position of governor of Leyte that she was a resident of
Kananga, Leyte when this was not so37 or that the candidate was a
"natural-born" Filipino when in fact he had become an Australian
citizen38 constitutes a ground for the cancellation of a certificate of
candidacy. On the other hand, we held in Salcedo II v. COMELEC39 that a
candidate who used her husband’s family name even though their marriage
was void was not guilty of misrepresentation concerning a material fact. In
the case at bar, what is involved is a false statement concerning a
candidate’s qualification for an office for which he filed the certificate of
candidacy. This is a misrepresentation of a material fact justifying the
cancellation of petitioner’s certificate of candidacy. The cancellation of
petitioner’s certificate of candidacy in this case is thus fully justified.
WHEREFORE, the petition is DISMISSED and the resolution of the Second
Division of the Commission on Elections, dated July 19, 2001, and the order,
dated January 30, 2002 of the Commission on Elections en banc are
AFFIRMED.
SO ORDERED.
G.R. No. 135468 May 31, 2000
DIOSCORO O. ANGELIA, petitioner,
vs.
COMMISSION ON ELECTIONS and FLORENTINO R. TAN, respondents.
MENDOZA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Civil Procedure
to set aside the resolution, dated August 18, 1998, of the Commission on
Elections en banc annulling the proclamation of petitioner as member of the
Sangguniang Bayan of Abuyog, Leyte and ordering the Municipal Board of
Canvassers of said municipality to make the necessary corrections in the
election returns of Precinct Nos. 84-A/84-A-1 and Precinct No. 23-A and,
thereafter, proclaim the winning candidate or candidates for the
Sangguniang Bayan.
The facts of the instant case are as follows:
On May 25, 1998, private respondent filed a petition for quo warranto with the
Regional Trial Court, Abuyog, Leyte against petitioner, alleging that in
Precinct Nos. 84-A/84-A-1, he was credited with only 82 votes, when he
actually obtained 92, while in Precinct No. 23-A, petitioner was credited with
18 votes, when he actually garnered only 13 votes. According to private
respondent, he actually received a total of 7,771 votes, while petitioner
actually garnered 7,760 votes.
On June 12, 1998 petitioner took his oath and assumed office as member of
the Sangguniang Bayan.
On June 23, 1998, private respondent filed a motion to withdraw his petition.
Subsequently, he filed a petition for annulment of proclamation of petitioner
with the COMELEC. He attached to the petition a copy of Election Return No.
3700088 from Precinct Nos. 84-A/84-A-1, which he claims showed a tally of
92 votes for him but indicated a corresponding total in words and figures of
only 82 votes.2 He also submitted a copy of Election Return No. 3700023,
which allegedly showed a tally of only 13 votes for petitioner but indicated a
corresponding total in words and figures of 18 votes.3 He presented the
affidavit4 of Alma Duavis, the poll clerk of Precinct Nos. 84-A/84-A-1, stating
that she inadvertently entered in Election Return No. 3700088 only 82
instead of 92 as the total number of votes received by private respondent,
and the affidavit5 of Chona Fernando, the poll clerk of Precinct No. 23-A,
stating that through oversight, in Election Return No. 3700023, she indicated
18 instead of 13 as the total votes obtained by petitioner. In addition, private
respondent submitted to the COMELEC the affidavit6 of Susan Matugas, the
chairperson of the Board of Election Inspectors of Precinct Nos. 84-A/84-A-1,
corroborating the affidavit of Duavis.
In the resolution, dated August 18, 1998, the COMELEC annulled the
proclamation of petitioner as member of the Sangguniang Bayan and
ordered the Municipal Board of Canvassers to make the necessary
corrections in the election returns from Precinct Nos. 84-A/ 84-A-1 and
Precinct No. 23-A and, thereafter, to proclaim the winning candidate or
candidates on the basis of the amended results. The resolution of the
COMELEC reads:
On the basis of the documents thus presented and taking into consideration
the admission of the Board of Election Inspectors of Precinct Nos. 84-A and
84-A-1, Barangay Dingle, as well as the Chairman of the BEI of Precinct No.
23, the Commission En Banc hereby RULES to GRANT the Petition.
Petitioner had correctly availed of the procedure provided for under Section 5
Rule 27 of the COMELEC Rules which prescribes:

Petitioner Dioscoro O. Angelia and private respondent Florentino R. Tan

were candidates for the position of member of the Sangguniang Bayan of
Abuyog, Leyte in the elections held on May 11, 1998. After the canvass of
votes on May 13, 1998, the Municipal Board of Canvassers proclaimed the
following as the duly elected members of the Sangguniang Bayan:1
Winning Candidates Votes Obtained
1. Placido A. Deloy 9,681
2. Emmanuel L. Gacis 9,164
Pre-proclamation controversies which may be filed directly with the
Commission — (a) The following pre-proclamation controversies may be filed
directly with the Commission:
xxx xxx xxx
(2) When the issue involves the correction of manifest errors in the tabulation
or tallying of the results during the canvassing as . . . . (3) there had been a
mistake in the copying of the figures into the statement of votes or into the
certificate of canvass . . . and such errors could not have been discovered
during the canvassing despite the exercise of due diligence and proclamation
of the winning candidates had already been made.
 51
Indeed, the error committed is manifest in that in Resolution No. 2962
(General Instructions for Municipal/City/Provincial and District Boards of
Canvassers in Connection with the May 11, 1998 Elections) it was clearly
directed:
In case there exist discrepancies in the votes of any candidate in taras/tally
as against the votes obtained in words/figures in the same
returns/certificate, the votes in taras/tally shall prevail.
Clearly, rectification of the error is called for, if We are to give life to the will
of the electorate. Moreover, it is purely administrative and "It does not
involve any opening of the ballot box, examination and appreciation of
ballots and/or election returns. As said error was discovered after
proclamation, all that is required is to convene the board of canvassers to
rectify the error it inadvertently committed in order that the true will of the
voters will be effected." (Tatlonghari vs. Commission on Elections, 199
SCRA 849)
WHEREFORE, premises considered, the Commission En Banc hereby
ANNULS the proclamation of Dioscoro Angelia, the same being based on
an erroneous tally and DIRECTS the Municipal Board of Canvassers of
Abuyog, Leyte, to RECONVENE within five (5) days from receipt hereof and
effect the corrections in the total number of votes received by the
candidates in Precinct Nos. 84-A/84-A-1 (clustered) and Precinct No. 23-A
and thereafter PROCLAIM the winning candidate/s for Municipal Kagawad
based on the corrected results.
Accordingly, the Municipal Board of Canvassers reconvened on September
1, 1998 and, after making the necessary corrections in the election returns,
proclaimed private respondent a member of the Sangguniang Bayan.
Petitioner filed a motion for reconsideration alleging that he was not given
due notice and hearing. Then, without waiting for the resolution of his
motion, he filed the instant petition for certiorari, alleging, as the sole
assignment of error, the following:
WITH DUE RESPECT, PUBLIC RESPONDENT COMELEC GRAVELY
ERRED AND VIOLATED PETITIONER'S CONSTITUTIONAL RIGHT TO
DUE PROCESS WHEN IT PASSED THE AUGUST 18, 1998
RESOLUTION ANNULLING HIS PROCLAMATION AND RECONVENING
THE MUNICIPAL BOARD OF CANVASSERS WITHOUT PRIOR NOTICE
AND HEARING.
The petition has no merit and should be dismissed, but before we do so,
certain preliminary questions raised by the parties must first be disposed of.
First. Respondents contend that the instant petition should be dismissed for
being premature, because petitioner has a pending motion for
reconsideration of the resolution, dated August 18, 1998, of the COMELEC.
We hold that petitioner acted correctly in filing the present petition because
the resolution of the COMELEC in question is not subject to reconsideration
and, therefore, any party who disagreed with it had only one recourse, and
that was to file a petition for certiorari under Rule 65 of the Rules of Civil
Procedure.7 Rule 13, §1 of the COMELEC Rules of Procedure provides:
What Pleadings are Not Allowed. — The following pleadings are not
allowed:
xxx xxx xxx
d) motion for reconsideration of an en banc ruling, resolution, order or
decision except in election offense cases;
xxx xxx xxx
As the case before the COMELEC did not involve an election offense,
reconsideration of the COMELEC resolution was not possible and petitioner
had no appeal or any plain, speedy, and adequate remedy in the ordinary
course of law. For him to wait until the COMELEC denied his motion would
be to allow the reglementary period for filing a petition for certiorari with this
Court to run and expire.
The COMELEC contends that petitioner should not be allowed to speculate
on the outcome of his motion for reconsideration, which he has not formally
withdrawn. Indeed, it would have been more appropriate for petitioner to first
withdraw his motion for reconsideration in the COMELEC before filing the
present petition. Nevertheless, the filing by petitioner of the instant petition
and his reply to the comments of respondents — where he admitted that,
except in cases involving election offenses, a motion for reconsideration of a
decision of the COMELEC en banc is a prohibited pleading8 — sufficiently
indicated his intention to abandon his motion for reconsideration.
Second. Petitioner alleges that private respondent failed to serve him a copy
of the petition for annulment of proclamation filed with the COMELEC. In
reply, private respondent submitted the registry receipt and the return card9
to prove that a copy of the said petition was received on June 26, 1998 by a
certain Tudila M. Angelia on behalf of petitioner. Petitioner admits the receipt
of said mail, but avers that it did not contain a copy of the petition for
annulment of proclamation in the COMELEC but of the petition for quo
warranto filed by private respondent in the Regional Trial Court, Abuyog,
Leyte. 10 As private respondent points out, however, the petition for quo
warranto was filed by his former counsel, the Martinez & Martinez Law Office,
and a copy of said petition was already sent to petitioner. On the other hand,
the petition for annulment of proclamation was filed by his new counsel, the
Astorga & Macamay Law Office. Since a copy of the petition for quo
warranto had previously been served on petitioner, there could be no reason
for private respondent's new counsel to serve it again on petitioner.
Petitioner likewise claims that private respondent engaged in forum-shopping
because, after filing a petition for quo warranto with the Regional Trial Court,
Abuyog, Leyte, private respondent filed the present petition for annulment of
proclamation with the COMELEC.
This contention is bereft of merit. First, private respondent withdrew the quo
warranto case before filing the petition for annulment of proclamation.
Second, while the filing of a petition for quo warranto precludes the
subsequent filing of a pre-proclamation controversy, this principle admits of
several exceptions, such as when such petition is not the proper remedy. 11
Under §253 of the Omnibus Election Code, the grounds for a petition for quo
warranto are ineligibility or disloyalty to the Republic of the Philippines of the
respondent. Since in the present case, private respondent alleged the
existence of manifest errors in the preparation of election returns, clearly, the
proper remedy is not a petition for quo warranto but a petition for annulment
of proclamation.
Third. Petitioner further contends that he was denied procedural due process
because the COMELEC issued its resolution without notice and hearing.
Indeed, it appears that the Municipal Board of Canvassers and the
COMELEC did not comply with the procedure that should have been followed
in the instant case.
In Castromayor v. COMELEC, 12 the returns from a precinct were overlooked
by the Municipal Board of Canvassers in computing the total number of votes
obtained by the candidates for the position of member of the Sangguniang
Bayan, for which reason the COMELEC directed the Municipal Board of
Canvassers to make the necessary corrections. We held that, as the case
involved a manifest error, although the COMELEC erred in annulling the
proclamation of petitioner without notice and hearing, the expedient course of
action was for the Municipal Board of Canvassers to reconvene and, after
notice and hearing in accordance with Rule 27, §7 of the COMELEC Rules of
Procedure, to effect the necessary corrections on the certificate of canvass
and proclaim the winning candidate or candidates on the basis thereof.
Said Rule 27, §7 of the COMELEC Rules of Procedure states:
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
 52
or into the statement of votes by precinct, or (4) so-called election returns COMMISSION ON ELECTIONS and FLORENCIO M. BERNABE,
from non-existent precincts were included in the canvass, the board JR., respondents.
may motu proprio, or upon verified petition by any candidate, political party,
organization or coalition of political parties, after due notice and hearing,
DECISION
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.
QUISUMBING, J.:
This special civil action for certiorari seeks to annul the en banc resolution of
public respondent Commission on Elections promulgated on June 29, 1998,
in a COMELEC special action case, SPA No. 98-383.
The factual antecedents of this case are as follows:
Petitioner and private respondent were the candidates for vice-mayor of the
City of Parañaque in the May 11, 1998 election. On May 19, 1998, the city
board of canvassers proclaimed private respondent, Florencio M. Bernabe,
Jr., the winner for having garnered a total of Seventy One Thousand Nine
Hundred Seventy Seven (71,977) votes of the total votes cast for the
vice-mayoralty position. On the other hand, petitioner, Tomas T. Banaga, Jr.,
received the second highest number of votes for the said position, with Sixty
Eight Thousand Nine Hundred Seventy (68,970) of the total votes cast. Thus,
the difference between the votes received by the private respondent and the
petitioner is three thousand seven (3,007) votes.
Dissatisfied, petitioner filed with the COMELEC on May 29, 1998, an action
denominated as "Petition to Declare Failure of Elections and/or For
Annulment of Elections",1 alleging that:

This case likewise involves manifest errors. Election Return No. 3700088
"3. xxx the local elections for the office of Vice-Mayor in the City of
from Precinct Nos. 84-A/84-A-1 is claimed to show 92 votes in favor of
Parañaque, Metro Manila, held on 11 May 1998, amounts to a denigration of
private respondent but indicate a total in words and figures of only 82 votes.
the expression of the true will of the people, as it was tainted with widespread
On the other hand, Election Return No. 3700023 allegedly shows 13 votes
election anomalies which constitutes election fraud. The local elections for
for petitioner but indicates in words and figures 18 votes. These
the position of Vice-Mayor in the City of Parañaque, Metro Manila, was
discrepancies can be easily resolved without opening the ballot boxes and
replete with election offenses, specifically vote buying and flying voters being
recounting the ballots. COMELEC Resolution No. 2962 provides that "in
allowed to vote. Moreover, during the canvassing of votes before the Board
case there exist discrepancies in the votes of any candidate in taras/tally as
of Canvasser, numerous Election Returns were discovered to contain glaring
against the votes obtained in words/figures in the same returns/certificates,
discrepancies and are replete with blatant omissions, not to mention the fact
the votes in taras/tally shall prevail."
that numerous election returns appeared to be tampered with. All told, it is
readily apparent that the portion of the Election Returns pertaining to the
In the present case, although the COMELEC annulled the proclamation of position of Vice-Mayor in the City of Parañaque, appear to be altered,
petitioner, it merely directed the Municipal Board of Canvassers to falsified or fabricated.
"RECONVENE within five (5) days from receipt hereof and effect the
corrections in the total number of votes received by the candidates in
4. The will of the legitimate voters of the City of Parañaque were denigrated
Precinct Nos. 84-A/84-A-1 (clustered) and Precinct No. 23-A and thereafter
during the 11 May 1998 election as a consequence of the fact that an
PROCLAIM the winning candidate/s for Municipal Kagawad based on the
indeterminable number of flying voters were allowed to vote.
corrected results." It was the Municipal Board of Canvassers which the
COMELEC ordered to actually effect the necessary corrections, if any, in
the said election returns and, on the basis thereof, proclaim the winning xxx
candidate or candidates as member or members of the Sangguniang Bayan.
In accordance with our ruling in Castromayor, the expedient action to take is
5. The 11 May 1998 elections for local officials in the City of Parañaque has
to direct the Municipal Board of Canvassers to reconvene and, after notice
likewise been marred by massive vote buying. To cite but one example, in
and hearing in accordance with Rule 27, §7 of the COMELEC Rules of
Precinct Nos. 111-112 at the Tambo Elementary School in the City of
Procedure, to effect the necessary corrections, if any, in the election returns
Parañaque, a certain Dennis Sambilay Agayan ("Agayan") was arrested for
and, on the basis thereof, proclaim the winning candidate or candidates as
voting in substitution of registered voter Ramon Vizcarra. Agayan admitted
member or members of the Sangguniang Bayan.
before SPO1 Alberto V. Parena that he was paid One Hundred Fifty Pesos
(P150.00) to vote at precincts No. 111-112 and use the name Ramon
WHEREFORE, the en banc resolution, dated August 18, 1998 of the Vizcarra. As proof of the foregoing, attached hereto as Annex "E" is the
Commission on Elections is AFFIRMED with the MODIFICATION that the Information dated 11 May 1998 filed against Agayan.
Municipal Board of Canvassers of Abuyog, Leyte is ordered to reconvene
and, after notice to the parties and hearing in accordance with Rule 27, §7
The magnitude of the vote buying in the 11 May 1998 local elections in the
of the COMELEC Rules of Procedure, to effect the necessary corrections, if
City of Parañaque, is such that the voters involved number in the thousands.
any, in Election Return No. 3700088 from Precinct Nos. 84-A/84-A-1 and
Evidence in this regard shall be presented in the proper time.
Election Return No. 3700023 from Precinct No. 23-A and, based on the
amended results, proclaim the winning candidate or candidates as member
or members of the Sangguniang Bayan of said municipality. 6. Also, there have been several instances where purported voters were
depositing more than one (1) ballot inside the ballot box. As evidence thereof,
attached hereto as Annex "F" is the Affidavit of a certain Rosemarie Pascua
SO ORDERED.
of Barangay Baclaran, City of Parañaque.

G.R. No. 134696 July 31, 2000

7. The foregoing incidents alone actually suffices to establish that a failure of
elections should be declared on the ground that the will of the electorate of
TOMAS T. BANAGA, JR., petitioner, the City of Parañaque has been denigrated. The elections for the office of the
vs. Vice-Mayor in the City of Parañaque, on 11 May 1998 cannot be considered
 53
as reflective of the true will of the electorate. However, the anomalies do not
stop there.
8. In addition to the foregoing, during the canvassing of votes before the
Board of Canvassers, it was discovered that numerous election returns
contain glaring discrepancies and are replete with blatant omissions, not to
mention the fact that several election returns appeared to be tampered with
or appear to be fabricated. The Honorable Commission should seriously
consider these anomalies specially on account of the fact that the lead of
the respondent over the petitioner is a mere Three Thousand Seven (3,007)
votes.
xxx
9. Moreover, several Election Returns are found to have glaring
discrepancies which may materially alter the results of the election for the
office of Vice-Mayor in the City of Parañaque.
xxx
10. Finally, what seriously casts doubt on the legitimacy of the elections for
the office of the Vice-Mayor in the City of Parañaque is the fact that the
results thereof are statistically improbable. A case in point is precinct
number 483 where petitioner shockingly is supposed to have received zero
(0) votes. Petitioner is the incumbent Vice-Mayor of the City of Parañaque.
It is, thus, impossible that he will receive zero (0) votes in any given
precinct."2
Petitioner asked the COMELEC for the following reliefs:
"1. After trial, judgment be rendered as follows:
1.1 Declaring a failure of elections, or declaring the annulment of the
elections, for the office of the Vice-Mayor in the City of Parañaque, Metro
Manila;
1.2. Annulling the proclamation of the respondent as the elected
Vice-Mayor of the City of Parañaque, Metro Manila, during the 11 May 1998
elections; and
1.3. Declaring that special elections should be held for the office of
Vice-Mayor in the City of Parañaque, Metro Manila.
2. Alternatively, in the remote event that the Honorable Commission does
not render judgment as aforesaid, an order be issued to the Treasurer of the
City of Parañaque to bring and present before this Honorable Commission
on or before the day of the hearing of the Election Protest, the ballot boxes,
copies of the registry lists, election returns, the minutes of election in all
precincts, and the other documents used in the local elections for the Office
of the Vice-Mayor held on 11 May 1998 in the said City, for the Honorable
Commission to re-examine and revise the same; and
3. After due trial judgment be rendered as follows:
3.1. The election of respondent FLORENCIO M. BERNABE, JR., for the
office of Vice-Mayor in the City of Parañaque, Metro Manila be annulled;
3.2. The petitioner, TOMAS T. BANAGA, JR., be adjudged as the duly
elected Vice-Mayor in the City of Parañaque, during the 11 May 1998 local
elections; and
3.3. The expenses, costs and damages incurred in these proceedings be
assessed against the respondent.
Other just and equitable reliefs are likewise prayed for."3
On June 29, 1998, the COMELEC dismissed petitioner’s suit. It held that
the grounds relied upon by petitioner do not fall under any of the instances
enumerated in Section 6 of the Omnibus Election Code. The election
tribunal concluded that based on the allegations of the petition, it is clear that
an election took place and that it did not result in a failure to elect.4
Considering that a motion for reconsideration of a COMELEC en banc ruling
is prohibited, except in a case involving an election offense,5 and aggrieved
by the COMELEC’s dismissal of his suit, petitioner timely filed the instant
petition for certiorari with this Court.
Before us, petitioner now claims that the COMELEC committed grave abuse
of discretion amounting to lack or excess of jurisdiction when it dismissed his
petition motu propio without any basis whatsoever and without giving him the
benefit of a hearing. He contends that:
I
THE PETITION DATED 28 MAY 1998 IS ESSENTIALLY AN ELECTION
PROTEST. HENCE, THE COMELEC COULD NOT LEGALLY DISMISS THE
ENTIRE PETITION MERELY ON THE GROUND THAT THERE WAS
ALLEGEDLY NO FAILURE OF ELECTION IN THE CITY OF PARANAQUE
DURING THE 11 MAY 1998 ELECTIONS.
II
THE AUTHORITY RELIED UPON BY THE COMELEC AS BASIS FOR THE
DISMISSAL OF THE PETITION DATED 28 MAY 1998, THAT OF EDWIN
SAR[D]EA, ET. AL. V. COMELEC, ET. AL., AND MITMUG V. COMELEC,
ARE NOT APPLICABLE TO THE CASE AT BAR CONSIDERING THAT
ASIDE FROM BEING AN ELECTION PROTEST, THE SAID PETITION
SEEKS THE ANNULMENT OF AN ELECTION PURSUANT TO THE
DOCTRINE LAID DOWN BY THE HONORABLE SUPREME COURT
IN LOONG V. COMELEC.6
Clearly, the issue for our resolution is whether or not public respondent acted
with grave abuse of discretion in dismissing petitioner’s petition, in the light of
petitioner’s foregoing contentions.
While petitioner may have intended to institute an election protest by praying
that said action may also be considered an election protest, in our view,
petitioner’s action is a petition to declare a failure of elections or annul
election results. It is not an election protest.
First, his petition before the COMELEC was instituted pursuant to Section 4
of Republic Act No. 7166 in relation to Section 6 of the Omnibus Election
Code. Section 4 of RA 7166 refers to "postponement, failure of election and
special elections"7 while Section 6 of the Omnibus Election Code relates to
"failure of election". It is simply captioned as "Petition to Declare Failure of
Elections and/or For Annulment of Elections".
Second, an election protest is an ordinary action while a petition to declare a
failure of elections is a special action under the 1993 COMELEC Rules of
Procedure as amended. An election protest is governed by Rule 20 on
ordinary actions, while a petition to declare failure of elections is covered by
Rule 26 under special actions.
In this case, petitioner filed his petition as a special action and paid the
corresponding fee therefor. Thus, the petition was docketed as SPA-98-383.
This conforms to petitioner’s categorization of his petition as one to declare a
failure of elections or annul election results. In contrast, an election protest is
assigned a docket number starting with "EPC", meaning election protest
case.
Third, petitioner did not comply with the requirements for filing an election
protest. He failed to pay the required filing fee and cash deposits for an
election protest. Failure to pay filing fees will not vest the election tribunal
jurisdiction over the case. Such procedural lapse on the part of a petitioner
would clearly warrant the outright dismissal of his action.
Fourth, an en banc decision of COMELEC in an ordinary action becomes
final and executory after thirty (30) days from its promulgation, while an en
banc decision in a special action becomes final and executory after five (5)
days from promulgation, unless restrained by the Supreme Court.8 For that
 54
reason, a petition cannot be treated as both an election protest and a
petition to declare failure of elections.
Fifth, the allegations in the petition decisively determine its nature.
Petitioner alleged that the local elections for the office of vice-mayor in
Parañaque City held on May 11, 1998, denigrates the true will of the people
as it was marred with widespread anomalies on account of vote buying,
flying voters and glaring discrepancies in the election returns. He averred
that those incidents warrant the declaration of a failure of elections. 9
Given these circumstances, public respondent cannot be said to have
gravely erred in treating petitioner’s action as a petition to declare failure of
elections or to annul election results.
The COMELEC’s authority to declare a failure of elections is provided in our
election laws. Section 4 of RA 7166 provides that the COMELEC sitting en
banc by a majority vote of its members may decide, among others, the
declaration of failure of election and the calling of special election as
provided in Section 6 of the Omnibus Election Code. Said Section 6, in turn,
provides as follows:
Section 6. Failure of Elections. --- If, on account of force majeure, violence,
terrorism, fraud or other analogous causes the election in any polling place
has not been held on the date fixed, or had been suspended before the
hour fixed by law for the closing of the voting, or after the voting and during
the preparation and the transmission of the 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 verified petition
by any interested party and after due notice and hearing, call for the holding
or continuation of the election not held, suspended or which resulted in a
failure to elect on a date reasonably close to the date of the election not
held, suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause of such postponement or
suspension of the election or failure to elect."
There are three instances where a failure of election may be declared,
namely, (a) the election in any polling place has not been held on the date
fixed on account of force majeure, violence, terrorism, fraud or other
analogous causes; (b) the election in any polling place has been suspended
before the hour fixed by law for the closing of the voting on account of force
majeure, violence, terrorism, fraud or other analogous causes; or (c) after
the voting and during the preparation and transmission of the election
returns or in the custody or canvass thereof, such election results in a
failure to elect on account of force majeure, violence, terrorism, fraud or
other analogous causes. In these instances, there is a resulting failure to
elect. This is obvious in the first two scenarios, where the election was not
held and where the election was suspended. As to the third scenario, where
the preparation and the transmission of the election returns give rise to the
consequence of failure to elect must as aforesaid, is interpreted to mean
that nobody emerged as a winner.10
Before the COMELEC can act on a verified petition seeking to declare a
failure of election two conditions must concur, namely (1) no voting took
place in the precinct or precincts on the date fixed by law, or even if there
was voting, the election resulted in a failure to elect; and (2) the votes not
cast would have affected the result of the election.11 Note that the cause of
such failure of election could only be any of the following: force majeure,
violence, terrorism, fraud or other analogous causes.
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
Parañaque 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.
In Mitmug vs. COMELEC,12 petitioner instituted with the COMELEC an
action to declare failure of election in forty-nine precincts where less than a
quarter of the electorate were able to cast their votes. He also lodged an
election protest with the Regional Trial Court disputing the result of the
election in all precincts in his municipality. The COMELEC denied motu
propio and without due notice and hearing the petition to declare failure of
election despite petitioner’s argument that he has meritorious grounds in
support thereto, that is, massive disenfranchisement of voters due to
terrorism. On review, we ruled that the COMELEC did not gravely abuse its
discretion in denying the petition. It was not proven that no actual voting took
place. Neither was it shown that even if there was voting, the results thereon
would be tantamount to failure to elect. Considering that there is no
concurrence of the conditions seeking to declare failure of election, there is
no longer need to receive evidence on alleged election irregularities.
In Sardea vs. COMELEC,13 all election materials and paraphernalia with the
municipal board of canvassers were destroyed by the sympathizers of the
losing mayoralty candidate. The board then decided to use the copies of
election returns furnished to the municipal trial court. Petitioner therein filed a
petition to stop the proceedings of the board of canvassers on the ground
that it had no authority to use said election returns obtained from the
municipal trial court. The petition was denied. Next, he filed a petition
assailing the composition of the board of canvassers. Despite that petition,
the board of canvassers proclaimed the winning candidates. Later on,
petitioner filed a petition to declare a failure of election alleging that the
attendant facts would justify declaration of such failure. On review, we ruled
that petitioner’s first two actions involved pre-proclamation controversies
which can no longer be entertained after the winning candidates have been
proclaimed. Regarding the petition to declare a failure of election, we held
that the destruction and loss of copies of election returns intended for the
municipal board of canvassers on account of violence is not one of the
causes that would warrant the declaration of failure of election. The reason is
that voting actually took place as scheduled and other valid election returns
still existed. Moreover, the destruction or loss did not affect the result of the
election. We also declared that there is failure of elections only when the will
of the electorate has been muted and cannot be ascertained. If the will of the
people is determinable, the same must as far as possible be respected.
These aforecited cases are instructive in the resolution of the present case
because they involve similar actions and issues.1âwphi1 No error could be
attributed to public respondent for its reliance on these precedents.
In Loong vs. Comelec,14 the petition for annulment of election results or to
declare failure of elections in Parang, Sulu, on the ground of statistical
improbability and massive fraud was granted by the COMELEC. 15 Even
before the technical examination of election documents was conducted, the
COMELEC already observed badges of fraud just by looking at the election
results in Parang. Nevertheless, the COMELEC dismissed the petition for
annulment of election results or to declare failure of elections in the
municipalities of Tapul, Panglima Estino, Pata, Siasi and Kalinggalang
Calauag. The COMELEC dismissed the latter action on ground of
untimeliness of the petition, despite a finding that the same badges of fraud
evident from the results of the election based on the certificates of canvass of
votes in Parang, are also evident in the election results of the five mentioned
municipalities. We ruled that COMELEC committed grave abuse of discretion
in dismissing the petition as there is no law which provides for a reglementary
period to file annulment of elections when there is yet no proclamation. The
election resulted in a failure to elect on account of fraud. Accordingly, we
ordered the COMELEC to reinstate the aforesaid petition. Those
circumstances, however, are not present in this case, so that reliance
on Loong by petitioner Banaga is misplaced.
Petitioner argues that the COMELEC should not have treated his prayer for
annulment of elections as a prayer for declaration of failure of elections.16
This argument is plainly gratuitous as well as immaterial. A prayer to declare
failure of elections and a prayer to annul the election results for vice mayor in
this case are actually of the same nature. Whether an action is for declaration
of failure of elections or for annulment of election results, based on
allegations of fraud, terrorism, violence or analogous cause, the Omnibus
Election Code denominates them similarly.17 No positive gain will accrue to
petitioner’s cause by making a distinction without a difference.
Finally, petitioner claims that public respondent gravely abused its discretion
when it dismissed his petition motu propio. However, the fact that a verified
petition has been filed does not mean that a hearing on the case should first
 55
be held before COMELEC can act on it. The petition to declare a failure of
election and/or to annul election results must show on its face that the
conditions necessary to declare a failure to elect are present. In their
absence, the petition must be denied outright.18 Public respondent had no
recourse but to dismiss petition. Nor may petitioner now complain of denial
of due process, on this score, for his failure to properly file an election
protest. The COMELEC can only rule on what was filed before it. It
committed no grave abuse of discretion in dismissing his petition "to declare
failure of elections and/or for annulment of elections" for being groundless,
hence without merit.
WHEREFORE, the instant petition is DISMISSED. The assailed
RESOLUTION of public respondent is AFFIRMED. Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ.,
concur.
Bellosillo, J., on official leave.
Pardo, J., no part.
Footnotes
garnered by petitioner [now private respondent];" Private respondent alleged:
5. That in the said Statement of Votes by City/Municipality or Precinct or C.E.
Form No. 20-A, it is reflected therein that the total number of votes garnered
by the petitioner is only 858 votes, when in fact and in truth, after reviewing
and correcting the computation of the actual votes garnered by the petitioner
the total votes to be counted in his favor is 915 votes;
6. That the Municipal Board of Canvassers and the Election Registrar of
Naujan, Oriental Mindoro, after having been informed of the said
discrepancies, manifested in the presence of Municipal Trial Court Judge
TOMAS C. LEYNES, that it was an honest mistake committed in the
computation and the addition of the total number of votes appearing in C.E.
Form No. 20-A.;
7. That after correcting the total number of votes garnered by the petitioner, it
appears now that the total votes cast in his favor in all precincts is 7,233
votes which is more than 28 votes over the total of 7,205 votes garnered by
respondent Aquiles U. Reyes, who was proclaimed as Elected Sangguniang
Bayan Member of Naujan, Oriental Mindoro occupying the 8th position.
On June 4, 1992, petitioner filed a motion to dismiss private respondent's
petition on the ground that it was filed beyond the reglementary period of ten
days from proclamation. On June 15, 1992, however, the trial court denied
his motion.

On the other hand, the Municipal Board of Canvassers file its answer in
G.R. No. 108886 May 5, 1995
which it admitted that it had made a mistake in crediting private respondent
with only 858 votes when he was entitled to 915 votes in the Statement of
AQUILES U. REYES, petitioner, Votes (C.E. Form No. 20-A).
vs.
REGIONAL TRIAL COURT OF ORIENTAL MINDORO, BRANCH XXXIX,
On June 23, 1992, the trial court rendered its decision annuling the
COMMISSION ON ELECTIONS, ADOLFO G. COMIA, AND THE
proclamation of petitioner and declaring private respondent as the eighth
SANGGUNIANG BAYAN OF NAUJAN, ORIENTAL
winning candidate for the position of councilor of the Sangguniang Bayan of
MINDORO, respondents.
Naujan, Oriental Mindoro. A copy of the decision was served on petitioner on
June 26, 1992.

Petitioner filed a notice of appeal to the COMELEC. In addition, he filed a

MENDOZA, J.: petition for mandamus and prohibition in the Court of Appeals, to compel the
Sangguniang Bayan to recognize him as the duly proclaimed member of that
body and prohibit it from further recognizing private respondent.
This is a petition for certiorari, prohibition and mandamus which seeks (1)
the annulment of the decision, dated June 23, 1992, of the Regional Trial
Court (Br. 39) of Calapan, Oriental Mindoro, annuling the proclamation of On August 26, 1992, the Court of Appeals dismissed the petition because of
petitioner as the eighth member of the Sangguniang Bayan of Naujan, petitioner's pending appeal in the COMELEC. The appellate court cited
Oriental Mindoro; (2) the annulment of the decision of the Commission on Supreme Court Circular 28-91 which prohibits the filing of multiple petitions
Elections (COMELEC), dated January 22, 1993, dismissing petitioner's involving the same issues.
appeal from the trial court's decision; (3) the issuance of a writ
of mandamus to compel respondent Sangguniang Bayan to recognize
Petitioner filed a motion for reconsideration but his motion was denied. The
petitioner as the duly elected member thereof; and (4) the issuance of a writ
appellate court's decision became final and executory on December 10,
of prohibition against respondent Adolfo G. Comia, enjoining him from
1992.
continuing in office as member of the Sangguniang Bayan of Naujan,
Oriental Mindoro.
Meanwhile, the Sangguniang Bayan met in inaugural session on July 3, 1992,
during which private respondent was recognized as the eighth member of the
The facts are as follows:
body and thereafter allowed to assume office and discharge its functions. On
July 13, 1992, it informed petitioner that it had recognized the private
Petitioner Aquiles Reyes and private respondent Adolfo Comia were respondent as its member.
candidates for the position of member of the Sangguniang Bayan of Naujan,
Oriental Mindoro in the May 11, 1992 synchronized elections.
On the other hand, the COMELEC's First Division dismissed on January 22,
1993 petitioner's appeal on the ground that he had failed to pay the appeal
On May 13, 1992, during the proceedings of the Municipal Board of fee within the prescribed period.
Canvassers, private respondent moved for the exclusion of certain election
returns, on the ground of serious irregularity in counting in favor of petitioner
Petitioner then brought the present action. Petitioner contends that both the
Aquiles Reyes votes cast for "Reyes" only, considering that there was
trial court and the COMELEC's First Division committed a grave abuse of
another candidate (Epitacio Reyes) bearing the same surname. However,
discretion, the first, by assuming jurisdiction over the election contest filed by
without resolving his petition, the Municipal Board of Canvassers
private respondent despite the fact that the case was filed more than ten
proclaimed on the same day petitioner as the eighth winning candidate with
days after petitioner's proclamation, and the second i.e., the COMELEC's
7,205 votes. On May 25, 1992 petitioner took his oath of office.
First Division, by dismissing petitioner's appeal from the decision of the trial
court for late payment of the appeal fee.
On June 1, 1992, private respondent filed an election protest before the trial
court. He alleged that "a vital mistake [had been] committed by the Board of
We find the petition to be without merit.
Canvassers in the mathematical computation of the total number of votes
 56
First. The Solicitor General, in behalf of the COMELEC, raises a
fundamental question. He contends that the filing of the present petition,
without petitioner first filing a motion for reconsideration before the
COMELEC en banc, violates Art. IX, A, §7 of the Constitution1 because
under this provision only decisions of the COMELEC en banc may be
brought to the Supreme Court on certiorari.
This is correct. It is now settled that in providing that the decisions, orders
and rulings of COMELEC "may be brought to the Supreme Court
on certiorari" the Constitution in its Art. IX, A, §7 means the special civil
action of certiorari under Rule 65, §1.2 Since a basic condition for bringing
such action is that the petitioner first file a motion for reconsideration,3 it
follows that petitioner's failure to file a motion for reconsideration of the
decision of the First Division of the COMELEC is fatal to his present action.
Petitioner argues that this requirement may be dispensed with because the
only question raised in his petition is a question of law. This is not correct.
The questions raised by petitioner involve the interpretation of constitutional
and statutory provisions in light of the facts of this case. The questions
tendered are, therefore, not pure questions of law.
Moreover, that a motion for reconsideration before the COMELEC en
banc is required for the filing of a petition for certiorari is clear from the
following provisions of the Constitution:
Art. IX, C, §2. The Commission on Elections shall exercise the following
powers and functions:
xxx xxx xxx
(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial, and
city officials, and appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests
involving elective municipal and barangay offices shall be final, executory,
and not appealable.
Id. §3. The Commission on Elections may sit en banc or in two divisions,
and shall promulgate its rules of procedure in order to expedite 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 decisions shall be decided by the Commission en
banc.
Conformably to these provisions of the Constitution all election cases,
including pre-proclamation controversies, must be decided by the
COMELEC in division. Should a party be dissatisfied with the decision, he
may file a motion for reconsideration before the COMELEC en banc. It is,
therefore, the decision, order or ruling of the COMELEC en banc that, in
accordance with Art. IX, A, §7, "may be brought to the Supreme Court
on certiorari."4
Second Even on the merits we think the First Division of the COMELEC
properly dismissed petitioner's appeal from the decision of the trial court
because of his failure to pay the appeal fee within the time for perfecting an
appeal. Rule 22, §9 of the COMELEC Rules of Procedure expressly
provides:
Sec. 9. Grounds for dismissal of appeal. — The appeal may be dismissed
upon motion of either party or at the instance of the Commission on any of
the following grounds:
(a) Failure of the appellant to pay the appeal fee; . . .
In accordance with §2(b) of COMELEC Resolution No. 2108-A, the appeal
fee must be paid within the period to perfect the appeal. Thus:
Sec. 2. When docket and other fees shall be paid. —
xxx xxx xxx
(b) The appeal fees prescribed in section 3 of Rule 22 of the COMELEC
Rules of Procedures shall be paid within the period to perfect the appeal. . . .
The period to perfect the appeal is understood to be the period within which
to file the notice of appeal.
On the other hand, Rule 22, §3 of the Rules of Procedure of the COMELEC
provides:
Notice of Appeal. Within five (5) days after promulgation of the decision of the
court, the aggrieved party may file with said court a notice of appeal, and
serve a copy thereof upon the attorney of record of the adverse party.
This resolution, which was promulgated on July 14, 1989, superseded
COMELEC Resolution No. 14565 on which petitioner relies for his contention
that the fee is to be paid only upon the filing of the appeal brief.
The records show that petitioner received a copy of the decision of the trial
court on June 26, 1992. However, he paid the appeal fee of P1,020.00 only
on August 6, 1992. In other words, petitioner allowed forty (40) days to lapse
when the appeal fee should have been paid within five (5) days after
promulgation of the trial court's decision.
Petitioner claims that he acted on advice, presumably of COMELEC officials,
to wait until the records of the appealed case was received from the Regional
Trial Court, so that it could be docketed and given a case number before
paying the appeal fee. But there is nothing in the record to show this or that
petitioner offered to pay the appeal fee within the appeal period. He has not
identified the person who allegedly gave him the erroneous advice.
Petitioner also prays that a re-canvass be conducted in all the electoral
precincts of Naujan, Oriental Mindoro in view of the joint-affidavit executed by
the members of the Municipal Board of Canvassers on October 12, 1993 in
which they stated:
That the respondent Board, per verification from the Comelec records of
Naujan, after receipt of the sworn letter-complaint of Mr. Aquiles U. Reyes,
aside from the matters already alluded to above found that the "40" votes he
garnered in Precinct No. 37, and the "31" votes in Precinct 41-A that should
have been credited, transcribed or recorded in complainant's favor in the
Statement of Votes (C.E. Form No. 22-A) on the basis of the Election Returns
(C.E. Form No. 9), thru honest mistake was erroneously and inadvertently
transcribed or recorded in good faith and without malice due to mental and
physical fatigue and exhaustion by the Board of Canvassers and its staff in
favor of candidate Jeremias Nacorda of Sangguniang Bayan Member of the
Municipality of Naujan in the Statement of Votes (C.E. Form No. 22-A) of said
precincts, and what should have been credited and reflected as candidate
Nacorda's vote in the Statement of Votes (C.E. Form No. 22-A) on the basis
of the Election Returns (C.E. Form No. 9) are "9" votes in Precinct 37 not "40"
votes, and "8" votes in Precinct No. 41-A and not "31" votes, certification is
hereto attached issued by the Election Officer of Naujan that candidate
Nacorda per Comelec records shown in the Election Returns (C.E. Form No.
9) only garnered "9" votes in Precinct 37, and "8" votes in Precinct 41-A and
marked as Annex "1" and made as integral part of his joint-affidavit.
This issue was raised in the Addendum to Appellant's Brief 6 in the
COMELEC Case EAC No. 9-92. With the dismissal of that case by the
COMELEC's First Division, there is no basis for petitioner's present
contention.
Third. Petitioner also assails the decision of the trial court as having been
rendered without jurisdiction. He contends that the election protest of private
respondent was filed more than ten days after his (petitioner's) proclamation.
Petitioner is, however, estopped to raise this question now. He did not only
appeal from the decision of the trial court to the COMELEC raising this
question, but he also filed a petition for mandamus and prohibition in the
Court of Appeals. Having decided on this course of action, he should not be
allowed to file the present petition just because he lost in those cases.
 57
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 114795 July 17, 1996
LUCITA Q. GARCES, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, SALVADOR EMPEYNADO and
CLAUDIO CONCEPCION, respondents.
RESOLUTION
FRANCISCO, J.:p
Questioned in this petition for review is the decision 1 of the Court of
Appeals 2 (CA), as well as its resolution, which affirmed the decision of the
Regional Trial Court 3 (RTC) of Zamboanga del Norte in dismissing a
petition for mandamus against a Provincial Election Supervisor and an
incumbent Election Registrar.
The undisputed facts are as follows:
Petitioner Lucita Garces was appointed Election Registrar of Gutalac,
Zamboanga del Norte on July 27, 1986. She was to replace respondent
Election Registrar Claudio Concepcion who, in turn, was transferred to Liloy,
Zamboanga del Norte. 4 Correspondingly approved by the Civil Service
Commission, 5 both appointments were to take effect upon assumption of
office. Concepcion, however, refused to transfer post as he did not request
for it. 6 Garces, on the other hand, was directed by the Office of Assistant
Director for Operations to assume the Gutalac post. 7 But she was not able
to do so because of a Memorandum issued by respondent Provincial
Election Supervisor Salvador Empeynado that prohibited her from
assuming office in Gutalac as the same is not vacant. 8
On February 24, 1987, Garces was directed by the same Office of Assistant
Director to defer her assumption of the Gutalac post. On April 15, 1987, she
received a letter from the Acting Manager, Finance Service Department,
with an enclosed check to cover for the expenses on construction of polling
booths. It was addressed "Mrs. Lucita Garces E.R. Gutalac, Zamboanga del
Norte" which Garces interpreted to mean as superseding the deferment
order. 9 Meanwhile, since respondent Concepcion continued occupying the
Gutalac office, the COMELEC en banc cancelled his appointment to Liloy.
10
On February 26, 1988, Garces filed before the RTC a petition for
mandamus with preliminary prohibitory and mandatory injunction and
damages against Empeynado 11 and Concepcion, among others.
Meantime, the COMELEC en banc through a Resolution dated June 3,
1988, resolved to recognize respondent Concepcion as the Election
Registrar of Gutalac, 12 and ordered that the appointments of Garces to
Gutalac and of Concepcion to Liloy be cancelled. 13 In view thereof,
respondent Empeynado moved to dismiss the petition for mandamus
alleging that the same was rendered moot and academic by the said
COMELEC Resolution, and that the case is cognizable only by the
COMELEC under Sec. 7 Art. IX-A of the 1987 Constitution. The RTC,
thereafter, dismissed the petition for mandamus on two grounds, viz., (1)
that quo warranto is the proper remedy, 14 and (2) that the "cases" or
"matters" referred under the constitution pertain only to those involving the
conduct of elections. On appeal, respondent CA affirmed the RTC's dismissal
of the case. Hence, this petition
The issues raised are purely legal. First, is petitioner's action for mandamus
proper? And, second, is this case cognizable by the RTC or by the Supreme
Court?
On the first issue, Garces claims that she has a clear legal right to the
Gutalac post which was deemed vacated at the time of her appointment and
qualification. Garces insists that the vacancy was created by Section 2,
Article III of the Provisional Constitution. 15 On the contrary, Concepcion
posits that he did not vacate his Gutalac post as he did not accept the
transfer to Liloy.
Article III Section 2 of the Provisional Constitution provides:
All elective and appointive officials and employees under the 1973
Constitution shall continue in the office until otherwise provided by
proclamation or executive order or upon the designation or appointment and
qualification of their successors, if such is made within a period of one year
from February 25, 1986. (Emphasis supplied).
The above organic provision did not require any cause for removal of an
appointive official under the 1973 Constitution. 16 The transition period from
the old to the new Constitution envisioned an "automatic" vacancy; 17 hence
the government is not hard put to prove anything plainly and simply because
the Constitution allows it. 18 Mere appointment and qualification of the
successor removes an incumbent from his post. Nevertheless, the
government in an act of auto-limitation and to prevent indiscriminate
dismissal of government personnel issued on May 28, 1986, Executive Order
(E.O.) No. 17. This executive order, which applies in this case as it was
passed prior to the issuance of Concepcion's transfer order, enumerates five
grounds for separation or replacement of elective and appointive officials
authorized under Article III, Section 2 of the Provisional Constitution, to wit:
1. Existence of a case for summary dismissal pursuant to Section 40 of
the Civil Service Law;
2. Existence of the probable cause for violation of the Anti-Graft and
Corrupt Practices Act as determined by the Ministry Head concerned;
3. Gross incompetence or inefficiency in the discharge of functions;
4. Misuse of public office for partisan political purposes;
5. Any other analogous ground showing that the incumbent is unfit to
remain in the service or his separation/replacement is in the interest of the
service.
Not one of these grounds was alleged to exist, much less proven by
petitioner when respondent Concepcion was transferred from Gutalac to
Liloy. More, Concepcion was transferred without his consent. A transfer
requires a prior appointment. 19 If the transfer was made without the consent
of the official concerned, it is tantamount to removal without valid cause 20
contrary to the fundamental guarantee on non-removal except for cause. 21
Concepcion's transfer thus becomes legally infirm and without effect for he
was not validly terminated. His appointment to the Liloy post, in fact, was
 58
incomplete because he did not accept it. Acceptance, it must be
emphasized, it is indispensable to complete an appointment.22 Corollarily,
Concepcion's post in Gutalac never became vacant. It is a basic precept in
the law of public officers that "no person, no matter how qualified and
eligible he is for a certain position may be appointed to an office which is not
vacant. 23 There can be no appointment to a non-vacant position. The
incumbent must first be legally removed, or his appointment validly
terminated before one could be validly installed to succeed him. Further,
Garces' appointment was ordered to be deferred by the COMELEC. The
deferment order, we note, was not unequivocably lifted. Worse, her
appointment to Gutalac was even cancelled by the COMELEC en banc.
exercise of its adjudicatory or quasi-judicial powers 30 involving "elective
regional, provincial, and city officials." 31 In this case, what is being assailed
is the COMELEC's choice of an appointee to occupy the Gutalac Post which
is an administrative duty done for the operational set-up of an agency. 32 The
controversy involves an appointive, not an elective, official. Hardly can this
matter call for the certiorari jurisdiction of the Supreme Court. To rule
otherwise would surely burden the Court with trivial administrative questions
that are best ventilated before the RTC, a court which the law vests with the
power to exercise original jurisdiction over "all cases not within the exclusive
jurisdiction over of any court, tribunal, person or body exercising judicial or
quasi-judicial

functions." 33

These factors negate Garces' claim for a well-defined, clear, certain legal
right to the Gutalac post. On the contrary, her right to the said office is
manifestly doubtful and highly questionable. As correctly ruled by WHEREFORE, premises considered, the petition for review is hereby
respondent court, mandamus, which petitioner filed below, will not lie as this DENIED without prejudice to the filing of the proper action with the
remedy applies only where petitioner's right is founded clearly in law and appropriate body.
not when it is doubtful. 24 It will not issue to give him something to which he
is not clearly and conclusively entitled. 25 Considering that Concepcion
continuously occupies the disputed position and exercises the
Narvasa, C.J., Davide, Jr., Melo and Panganiban, JJ., concur.
corresponding functions therefor, the proper remedy should have been quo
warranto and not mandamus. 26 Quo warranto tests the title to one's office
claimed by another and has as its object the ouster of the holder from its
enjoyment, while mandamus avails to enforce clear legal duties and not to
try disputed titles. 27
G.R. No. L-31455 February 28, 1985

Garces' heavy reliance with the 1964 Tulawie 28 case is misplaced for
material and different factual considerations. Unlike in this case, the
disputed office of "Assistant Provincial Agriculturist" in the case of Tulawie
is clearly vacant and petitioner Tulawie's appointment was confirmed by the
higher authorities making his claim to the disputed position clear and certain.
Tulawie's petition for mandamus, moreover, was against the Provincial
Agriculturist who never claimed title to the contested office. In this case,
there was no vacancy in the Gutalac post and petitioner's appointment to
which she could base her claim was revoked making her claim uncertain.
FILIPINAS ENGINEERING AND MACHINE SHOP, petitioner,
vs.
HON. JAIME N. FERRER, LINO PATAJO and CESAR MIRAFLOR as
COMMITTEE CHAIRMAN EMILIO AGUILA and MEMBERS PACIENCIO B
LOMBOS; HON. JUDGE JOSE LEUTERIO of the Court of First I
COMPANY, respondents.

CUEVAS, J.:

Coming now to the second issue.

Appeal by certiorari from the Order dated November 15, 1969 issued by t
DISMISSING Civil Case No. 77972 entitled, "Filipinas Engineering and Machi
20, 1969 DENYING petitioner's motion for reconsideration.
The jurisdiction of the RTC was challenged by respondent Empeynado 29
contending that this is a "case" or "matter" cognizable by the COMELEC
In preparation for the national elections of November 11, 1969, then respo
under Sec. 7 Art. IX-A of the 1987 Constitution. The COMELEC resolution
INVITATION TO BID CALL No. 127 on September 16, 1969 calling for the sub
cancelling the appointment of Garces as Election Registrar of Gutalac, he
voting booths with the following specifications and descriptions, to wit:
argues, should be raised only on certiorari before the Supreme Court and
not before the RTC, else the latter court becomes a reviewer of an en banc
COMELEC resolution contrary to Sec. 7, Art. IX-A. 11,000 Units VOTING BOOTHS, easy to install and store. Must be of light but
sturdy. Each Unit shall consists of two (2) voting booths with overall measure
compartment measuring 75 cms. long x 75 cms. wide x 185 cms. high). The to
unit shall be without cover to serve as its opening (entrance). Each voting com
The contention is without merit. Sec. 7, Art. IX-A of the Constitution
provides:
Each unit shall be contained in individual wooden box.

Each commission shall decide by a majority vote of all its members any Bidders are required to submit finished sample.1
case or matter brought before it within sixty days from the date of its
submission for decision or resolution. A case or matter is deemed submitted Among the seventeen bidders who submitted proposals in response to the s
for decision or resolution upon the filing of the last pleading, brief, or Shop, (Filipinas for short) and the private respondent, Acme Steel Manufacturi
memorandum required by the rules of the commission or by the commission
itself. Unless otherwise provided by this constitution or by law, any decision,
order, or ruling of each commission may be brought to the supreme court on Filipinas' sealed proposal was as follows:
certiorari by the aggrieved party within thirty days from receipt of a copy
thereof.
Prices Per Brief Description
Unit
P128.00 Sample 2 — same in construction as
This provision is inapplicable as there was no case or matter filed before the sample 1, except that its siding and top
COMELEC. On the contrary, it was the COMELEC's resolution that cover is made of plywood (or lawanit if
triggered this controversy. The "case" or "matter" referred to by the available). 33.5 kilos in weight. Packed
constitution must be something within the jurisdiction of the COMELEC, i.e., in wooden box. 2
it must pertain to an election dispute. The settled rule is that "decision,
rulings, order" of the COMELEC that may be brought to the Supreme Court
on certiorari under Sec. 7 Art. IX-A are those that relate to the COMELEC's
 59
P123.00 Same as sample 2, except that it is
packed in corrogated carton box.
Acme's bid was
Prices Per Brief Description
Unit
P78.00 Made of steel, channel type frames
with steel sheet sidings, top cover and
table; painted, 51 kilos in weight. 3
On October 7, 1969, the respondent COMELEC Bidding Committee
Chairman and Members submitted their Memorandum on the proceedings
taken pursuant to the said Invitation to Bid which stated that Acme's bid had
to be rejected because the sample it submitted was "made of black iron
sheets, painted, and therefore not rust proof or rust resistant," and that, "it is
also heavy — 51 kilos in weight.4 The Committee instead recommended
that Filipinas be awarded the contract to manufacture and supply the voting
booths, but that an "ocular inspection be made by all members of the
Commission of all the samples before the final award be made."5
On October 9, 1969, after an ocular inspection of all the samples submitted
was conducted by the COMELEC Commissioners, and after the
Commissioners noted that Acme submitted the lowest bid, the COMELEC
issued a Resolution awarding the contract (for voting booths) to Acme,
subject to the condition, among others, that "(Acme) improves the sample
submitted in such manner as it would be rust proof or rust resistant. ... ." 6
On October 11, 1969, the COMELEC issued Purchase Order No. 682 for
the manufacture and supply of the 11,000 Units of voting booths in favor of
Acme. Acme accepted the terms of the purchase.
On October 16, 1969, Filipinas filed an Injunction suit with the then Court of
First Instance of Manila, docketed as Civil Case No. 77972, against herein
public respondents COMELEC Commissioners, chairman and members of
the Comelec Bidding Committee, and private respondent Acme.
Filipinas also applied for a writ of preliminary injunction. After hearing
petitioner's said application, the respondent Judge in an order dated
October 20, 1969 denied the writ prayed for.7
Thereafter or more specifically on October 29, 1969, the public respondents
filed a motion to Dismiss on the grounds that the lower court has no
jurisdiction over the nature of suit, and that the complaint states no cause of
action.8
Acting on the motion (to dismiss), the respondent Judge issued the
questioned Order dismissing Civil Case No. 77972. Filipinas' motion for
reconsideration was denied for lack of merit.
Hence, the instant appeal.
In the meantime, since no restraining order had been issued against the
holding of the national elections scheduled on November 11, 1969, Acme
complied with its contract with the COMELEC.
On this score alone, this petition should be dismissed for being moot and
academic. Considering however the nature and importance of the legal
questions raised, We have opted to discuss and resolve the same with
finality.
Two main issues are raised before Us, namely:
1. Whether or not the lower court has jurisdiction to take cognizance of a
suit involving an order of the COMELEC dealing with an award of contract
arising from its invitation to bid; and
2. Whether or not Filipinas, the losing bidder, has a cause of action under the
premises against the COMELEC and Acme, the winning bidder, to enjoin
them from complying with their contract.
We resolve the first issue in the affirmative.
By constitutional mandate-
The Commission on Elections shall have exclusive charge of the
enforcement and administration of all laws relative to the conduct of elections
and shall exercise all other functions which may be conferred upon it by law.
It shall decide, save those involving the right to vote, all administrative
questions affecting elections, including the determination of the number of
location of Polling places, and the appointment of election inspectors and of
other election officials. ... The decisions, orders and rulings of the
Commission shall be subject to review by the Supreme Court. (Section 2,
Article X, 1935 Philippine Constitution, which was then in force)
Section 5 of the Revised Election Code (Republic Act No. 180, approved
June 21, 1947, the election law then enforced) provided that, "(a) any
controversy submitted to the Commission on Elections shall be tried, heard
and decided by it within fifteen days counted from the time the corresponding
petition giving rise to said controversy is filed," and that, "any violation of any
final and executory decision, order, or ruling of the Commission shall"
constitute contempt of court Likewise, the same section provided that, "any
decision, order or ruling of the Commission on Elections may be reviewed by
the Supreme Court by writ of certiorari in accordance with the Rules of Court
or with such rules as may be promulgated by the Supreme Court.
Similarly, Section 17(5) of the Judiciary Act of 1948 (Republic Act No. 296),
as amended, provides that, "final awards, judgments, decisions or orders of
the Commission on Elections ..." fall within the exclusive jurisdiction of the
Supreme Court by way of certiorari. Section 1, Rule 43 of the 1964 Revised
Rules of Court prescribed the manner of appeal by certiorari to the Supreme
Court from a final ruling or decision of the Commission on Elections, among
other administrative bodies.
Hence it has been consistently held 9 that it is the Supreme Court, not the
Court of First Instance, which has exclusive jurisdiction to review on certiorari
final decisions, orders or rulings of the COMELEC relative to the conduct of
elections and enforcement of election laws.
We are however, far from convince that an order of the COMELEC awarding
a contract to a private party, as a result of its choice among various proposals
submitted in response to its invitation to bid comes within the purview of a
"final order" which is exclusively and directly appealable to this court on
certiorari. What is contemplated by the term "final orders, rulings and
decisions" of the COMELEC reviewable by certiorari by the Supreme Court
as provided by law are those rendered in actions or proceedings before the
COMELEC and taken cognizance of by the said body in the exercise of its
adjudicatory or quasi-judicial powers.
It cannot be gainsaid that the powers vested by the Constitution and the law
on the Commission on Elections may either be classified as those pertaining
to its adjudicatory or quasi-judicial functions, or those which are inherently
administrative and sometimes ministerial in character.
Thus in the case of Masangcay vs. Commission on Elections, G.R. No.
L-13827, September 28, 1962 (6 SCRA 27, 2829), We held that —
... (W)e had the occasion to stress in the case of Guevarra vs. Commission
on Elections (G.R. No. L-12596, July 31, 1958) that under the law and the
constitution, the Commission on Elections has not only the duty to enforce
and administer all laws relative to the conduct of elections, but also the power
to try, hear and decide any controversy that may be submitted to it in
connection with the elections. In this sense, We said the Commission,
although it cannot be classified as a court of justice within the meaning of the
Constitution (Sec. 30, Article VIII), for it is merely an administrative body, may,
however, exercise quasi-judicial functions insofar as controversies that by
express provision of law come under its jurisdiction. The difficulty lies in
drawing the demarcation line between the duty which inherently is
administrative in character and a function which calls for the exercise of the
quasi-judicial function of the Commission. In the same case, we also
 60
expressed the view that when the Commission exercises a ministerial
function it cannot exercise the power to punish for contempt because such
power is inherently judicial in nature. ... .
We agree with petitioner's contention that the order of the Commission
granting the award to a bidder is not an order rendered in a legal
controversy before it wherein the parties filed their respective pleadings and
presented evidence after which the questioned order was issued; and that
this order of the commission was issued pursuant to its authority to enter
into contracts in relation to election purposes. In short, the COMELEC
resolution awarding the contract in favor of Acme was not issued pursuant
to its quasi-judicial functions but merely as an incident of its inherent
administrative functions over the conduct of elections, and hence, the said
resolution may not be deemed as a "final order" reviewable by certiorari by
the Supreme Court. Being non-judicial in character, no contempt may be
imposed by the COMELEC from said order, and no direct and exclusive
appeal by certiorari to this Tribunal lie from such order. Any question arising
from said order may be well taken in an ordinary civil action before the trial
courts.
On the second issue, We rule that Filipinas, the losing bidder, has no cause
of action under the premises to enjoin the COMELEC from pursuing its
contract with Acme, the winning bidder.
While it may be true that the lower court has the jurisdiction over
controversies dealing with the COMELEC's award of contracts, the same
being purely administrative and civil in nature, nevertheless, herein
petitioner has no cause of action on the basis of the allegations of its
complaint.
Indeed, while the law requires the exercise of sound discretion on the part
of procurement authorities,10 and that the reservation to reject any or all
bids may not be used as a shield to a fraudulent award, 11 petitioner has
miserably failed to prove or substantiate the existence of malice or fraud on
the part of the public respondents in the challenged award.
The COMELEC's Invitation to Bid No. 127, dated September 16, 1969,
expressly stipulates —
8. AWARD OF CONTRACT
Subject to the rights herein reserved, award shall be made by the
Commission by resolution to the lowest and responsible bidder whose Offer
will best serve the interest of the Commission on Elections. The resolution
of the Commission shag be communicated in writing to the winning bidder.
The winning bidder or awardees shall enter into contract with the
Commission on Elections for the supply of the voting booths under the
terms and conditions embodied in the Invitation to Bid.
THE COMMISSION ON ELECTIONS RESERVES THE RIGHT TO
REJECT ANY OR ALL BIDS; TO WAIVE ANY INFORMATION THEREIN;
OR TO ACCEPT SUCH BID AS MAY IN ITS DISCRETION BE
CONSIDERED MOST REASONABLE AND ADVANTAGEOUS. The right is
also reserved to reject bids which are defective due to inadequate
preparation, omission or lacks sufficient data, guarantee and other
information required to be submitted, or bids without the accompanying
bond. The right is further reserved to reject the bid of a bidder who had
previously failed to perform properly or to deliver on nine materials covered
by contract of similar nature.
xxx xxx xxx
14. THIS CALL FORBIDS IS NO MORE THAN AN INVITATION TO MAKE
PROPOSALS AND THE COMMISSION ON ELECTIONS IS NOT BOUND
TO ACCEPT ANY BID, NOR SHALL THIS CALL FOR BIDS BY ITSELF
CONFER A RIGHT TO ANY BIDDER TO ACTION FOR DAMAGES OR
UNREALIZED OR EXPECTED PROFITS UNLESS THE BID IS DULY
ACCEPTED BY THERE SOLUTION OF THE COMMISSION ON
ELECTIONS. 12 (Emphasis supplied)
The "Bidders Tender Call No. 127", the form accomplished by the bidder
pursuant to Invitation to Bid No. 127, also categorically provide that the
bidder submits his proposals "subject to the conditions stated in the
invitation."13
It is crystal clear from the aforequoted conditions, that subject to the rights of
the COMELEC duly reserved in the said Invitation, award shall be made to
the lowest and responsible bidder whose offer will best serve the interest of
the COMELEC; that the COMELEC had reserved the right, among others, to
accept such bid, as may in its discretion, be considered most reasonable and
advantageous; and that the invitation was merely a call for proposals.
Consequently, the COMELEC was not under legal obligation to accept any
bid since "Advertisements for bidders are simply invitation to make proposals
and the advertiser is not bound to accept the highest or lowest bidder, unless
the contrary appears."14
Pursuant to COMELEC's Invitation to Bid No. 127, a bidder may have the
right to demand damages, or unrealized or expected profits, only when his
bid was accepted by resolution of the COMELEC. Filipinas' bid, although
recommended for award of contract by the bidding committee, was not the
winning bid. No resolution to that effect appeared to have been issued by the
COMELEC. Decidedly then, Filipinas has no cause of action.
In Leoquinco vs. Postal Savings Bank, 47 Phil. 772, 774775, this Court held:
... (A)ppellant set forth and admitted in his pleadings in the regulation
adopted by the Board of Directors authorizing the sale at public auction of the
land, as well as the notice announcing the auction that appellant had
expressly reserved to themselves the right to reject any and all bids. By
taking part in the auction and offering his bid, the appellant voluntarily
submitted to the terms and conditions of the auction sale announced in the
notice, and clearly acknowledged the right reserved to the appellees. The
appellees, making use of that right, rejected his offer. Clearly the appellant
has no ground of action to compel them to execute a deed of sale of the land
in his favor, nor to compel them to accept his bid or offer. ... .
In issuing the resolution awarding the contract for voting booths in Acme's
favor, the Commissioners of the COMELEC had taken into account that
Acme's bid was the lowest; that Acme was a responsible manufacturer; and
that upon an ocular inspection of the samples submitted by the bidders,
Acme's sample was favorable chosen subject to certain conditions cited in
the resolution. In fine, the public respondents properly exercised its sound
discretion in making the award.
Once more, We reiterate the dictum earlier laid down in the case of Jalandoni
vs. National Resettlement and Rehabilitation Administration, et al., G.R. No.
L-15198, May 30,1960 (108 Phil, 486, 491-492) that —
Neither can it be contended that the fact that appellant gave the lowest
quotation, which was favorably indorsed by the Committee on Bids, created a
vested right in favor of the said bidder. Admittedly, the offers were rejected by
the Board of Directors. It is clear therefore that there having no meeting of the
minds of the parties, there was no perfected contract between them which
could be the basis of action against the defendants-appellees.
The presentation by a reliable and responsible bidder of the lowest bid to
officials whose duty it is to let the contract to the lowest reliable and
responsible bidder, but who have the right and have given notice that they
reserve the right to reject any and an bids, does not constitute an agreement
that they will make a contract with such a bidder, nor vest in him such an
absolute right to the contract as against a higher bidder (Colorado Paving Co.
vs, Murphy, (CCA 8th) 78 F. 28, 37 LRA 630).
The mere determination of a public official or board to accept the proposal of
a bidder does not constitute a contract (Smithmeyer vs. United States, 147
U.S. 342, 37 L, ed. 196,13 S. Ct. 321); the decision must be communicated
to the bidder (Cedar Rapids Lumber Co. vs. Fischer, 129 Iowa 332,105 N.W.
595,4 LRA (NS) 177).
No contractual relation can arise merely from a bid, unless by the terms of
the statute and the advertisement, a bid in pursuance thereof is, as a matter
of law, an acceptance of an offer, wholly apart from any action on the part of
the municipality or any of its officers (Molloy vs. Rochelle, supra).
 61
WHEREFORE, finding the instant petition to be without merit aside from
being moot and academic, the same is hereby DISMISSED.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 105323 July 3, 1992
FRANCISCO I. CHAVEZ, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION
BIDIN, J.:
This case was originally an urgent petition ad cautelam praying, among
others, for the issuance of a temporary restraining order enjoining
respondent Commission on Elections (Comelec) from proclaiming the 24th
highest senatorial candidate.
The antecedents facts are as follows:
On May 5, 1992, this Court issued a Resolution in G.R. No. 104704, entitled
"Francisco Chavez v. Comelec, et al.," disqualifying Melchor Chavez,
private respondent therein, from running for the Office of Senator in the May
11, 1992 elections.
The above-mentioned resolution was received by respondent Comelec on
May 6, 1992. On the same day, petitioner filed an urgent motion with the
Comelec praying that it (1) disseminate through the fastest available means
this Court's Resolution dated May 5, 1992 to all regional election directors,
provincial election supervisors, city and municipal election registrars,
boards of election inspectors, the six (6) accredited political parties and the
general public; and (2) order said election officials to delete the name of
Melchor Chavez as printed in the certified list of candidates tally sheets,
election returns and "to count all votes cast for the disqualified Melchor
Chavez in favor of Francisco I. Chavez . . . ."
On May 8, 1992, the Comelec issued Res. No. 92-1322 which resolved to
delete the name of Melchor Chavez from the list of qualified candidates.
However, it failed to order the crediting of all "Chavez" votes in favor of
petitioner as well as the cancellation of Melchor Chavez' name in the list of
qualified candidates.
According to petitioner, the Comelec failed to perform its mandatory
function under Sec. 7, RA 7166 which states that if a candidate has been
disqualified, it shall be the duty of the Commission to instruct without delay
the deletion of the name of said candidate.
Thus, the name of Melchor Chavez remained undeleted in the list of
qualified candidates on election day.
Confusion arose, allegedly nationwide, as the "Chavez" votes were either
declared stray or invalidated by the Boards of Election Inspectors (BEIs).
On May 11, 1992, Commissioner Rama of respondent Comelec issued a
directive over radio and TV ordering all "Chavez" votes to be credited in
favor of petitioner. Petitioner contends that the radio and TV
announcements did not reach the BEI at the 170,354 precincts nationwide.
As a result, "Chavez" votes were not credited in favor of petitioner.
On May 12, 1992, Comelec issued another Resolution directing all municipal
and city election registrars throughout the country to examine the minutes of
voting submitted by the BEIs and to credit all the "Chavez" votes, which have
been declared stray or invalidated by the BEIs, in favor of petitioner.
Petitioner maintains that the said resolution proved futile because it did not
reach all the various BEIs of the 170,354 election precincts throughout the
country on time for implementation and that the minutes of voting did not
indicate the number of "Chavez" votes which were declared stray or
invalidated.
On May 14, 1992, petitioner sent a letter to the Comelec requesting the latter
to devise ways and means in crediting "Chavez" votes in his favor but the
respondent Commission failed to act on said letter/complaint.
On May 23, 1992, petitioner filed an urgent petition before the respondent
Comelec praying the latter to (1) implement its May 12, 1992 resolution with
costs de officio; (2) to re-open the ballot boxes in 13 provinces including the
National Capital Region involving some 80,348 precincts (p. 9 of petition) and
to scan for the "Chavez" votes for purposes of crediting the same in his favor;
(3) make the appropriate entries in the election returns/certificates of canvass;
and (4) to suspend the proclamation of the 24 winning candidates.
Dissatisfied with the failure of respondent Comelec to act on his petition,
petitioner filed, as aforesaid, this urgent petition for prohibition
and mandamus, with prayer for the issuance of a temporary restraining order,
enjoining the Comelec from proclaiming the 24th highest senatorial candidate,
without first implementing respondent Comelec's resolution of May 12, 1992
and acting upon petitioner's letter/complaint dated May 14, 1992 and urgent
petition dated May 22, 1992.
It is the submission of petitioner that assuming only ten (10) "Chavez" votes
were invalidated per precinct, he would have lost at least 1.7 million votes
(considering that there are more than 170,000 precincts nationwide); the
result of which will affect the 24 ranking senatorial candidates.
Petitioner alleges that respondent Comelec acted capriciously and
whimsically and with grave abuse of discretion and therefore prays that the
Comelec be enjoined from proclaiming the 24th winning senatorial candidate
until after his petition before the Commission is resolved.
On June 4, 1992, the Court issued a Temporary Restraining Order enjoining
respondent Comelec from proclaiming the 24th winning senatorial candidate
and set the case for hearing on June 9, 1992.
On the same day (June 4, 1992), petitioner filed a manifestation stating that
on May 30, 1992, his urgent petition dated May 22, 1992 was dismissed by
respondent Comelec and prayed that the petition ad cautelam at bar be
considered a regular petition.
On June 8, 1992, Senator Agapito Aquino ** filed a Motion for Leave to
Intervene with Comment in Intervention praying for the dismissal of the
instant petition on the ground that the law does not allow pre-proclamation
controversy involving the election of members of the Senate.
After hearing the arguments of the parties on June 9, 1992, the Court
resolved to lift the temporary restraining order in the afternoon of the same
day (June 9, 1992).
Coming now to the merits, We find the petition devoid of any.
As stated earlier, petitioner's urgent petition dated May 22, 1992 was
dismissed by respondent Comelec on May 30, 1992. Had it not been prayed
that the proclamation of the 24th winning senatorial candidate be suspended,
which this Court granted on June 4, 1992, the instant petition would have
been dismissed outright for having become moot and academic. But even
then, this Court could not have acted favorably on petitioner's plaint.
The alleged inaction of respondent Comelec in ordering the deletion of
Melchor Chavez's name in the list of qualified candidates does not call for the
exercise of the Court's function of judicial review. This Court can review the
 62
decisions or orders of the Comelec only in cases of grave abuse of
discretion committed by it in the discharge of its quasi-judicial powers and
not those arising from the exercise of its administrative functions.
Respondent Commission's alleged failure to implement its own resolution is
undoubtedly administrative in nature, hence, beyond judicial interference
(See Filipinas Engineering Co. v. Ferrer, 135 SCRA 25 [1985]; Aratuc v.
Commission on Elections, 88 SCRA 251 [1979]; see also Pungutan v.
Abubakar, 43 SCRA 1 [1972]). As aptly observed by the Solicitor
General, respondent Comelec can administratively undo what it has
administratively left undone(Manifestation, p. 2). Moreover, respondent
Comelec has in fact, on May 6, 1992 to be exact, ordered the deletion of
Melchor Chavez's name not only on the official list of candidates, but also
on the election returns, tally sheet and certificate of canvass (Comment, p.
7). Hence, petitioner's allegation that respondent Comelec failed to
implement Res. No. 92-132 does not hold water.
Be that as it may, there are other compelling reasons why the instant
petition is bound to fail.
A simple reading of the petition would readily show that petitioner has no
cause of action, the controversy presented being one in the nature of a
pre-proclamation. **
While the Commission has exclusive jurisdiction over pre-proclamation
controversies involving local elective officials (Sec. 242, Omnibus Election
Code), nevertheless, pre-proclamation cases are not allowed in elections
for President, Vice-President, Senator and Member of the House of
Representatives.
Sec. 15 of Republic Act 7166 provides:
Sec. 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 certificate of canvass, as the case may be. However, this
does not preclude the authority of the appropriate canvassing body motu
proprio or upon written complaint of an interested person to correct
manifest errors in the certificate of canvass or election returns before it.
(emphasis supplied)
xxx xxx xxx
"manifest error" in the certificates of canvass or election returns he desires to
be rectified. There being none, petitioner's proper recourse is to file a regular
election protest which, under the Constitution and the Omnibus Election
Code, exclusively pertains to the Senate Electoral Tribunal.
Thus, Sec. 17, Art. VI of the Constitution provides that "(t)he Senate and the
House of Representatives shall each have an Electoral Tribunal which shall
be the sole judge of all contests relating to the election, returns, and
qualifications of their respective Members. . . ." (emphasis supplied). The
word "sole" underscores the exclusivity of the Tribunals' jurisdiction over
election contests relating to their respective Members (Co v. Electoral
Tribunal of the House of Representatives, 199 SCRA 692 [1991]; Lazatin v.
House of Representatives Electoral Tribunal, 168 SCRA 391 [1988]; Angara
v. Electoral Commission, 63 Phil. 139 [1936]). It is therefore crystal clear that
this Court has no jurisdiction to entertain the instant petition. It is the Senate
Electoral Tribunal which has exclusive jurisdiction to act on the complaint of
petitioner involving, as it does, contest relating to the election of a member of
the Senate. As aforesaid, petitioner's proper recourse is to file a regular
election protest before the Senate Electoral Tribunal after the winning
senatorial candidates have been proclaimed.
Petitioner argues, on the other hand, that a recount before the Senate
Electoral Tribunal where he would be forced to shell out the expenses
imposes not only a property requirement for the enjoyment of the right to be
voted upon but also a price on the right of suffrage which would ultimately
stifle the sovereign will.
The argument, however, is beside the point. The law is very clear on the
matter and it is not right for petitioner to ask this Court to abandon settled
jurisprudence, engage in judicial legislation, amend the Constitution and alter
the Omnibus Election Code. The mandatory procedures laid down by the
existing law in cases like the one at bar must be faithfully followed lest we
allow anarchy to reign. The proper recourse is for petitioner to ask not this
Court but the Legislature to enact remedial measures.
Finally, the instant petition falls squarely with the case of Sanchez v.
Commission on Elections (153 SCRA 67 [1987]) and the disposition arrived
therein finds application in the case at bar, mutatis mutandis:
Sanchez anchors his petition for recount and/or reappreciation on Section
243, paragraph (b) of the Omnibus Election Code in relation to Section 234
thereof with regard to material defects in canvassed election returns. He
contends that the canvassed returns discarding "Sanchez" votes as stray
were "incomplete" and therefore warrant a recount or reappreciation of the
ballots under Section 234.

Any objection on the election returns before the city or municipal board of
xxx xxx xxx
canvassers, or on the municipal certificates of canvass before the provincial
boards of canvassers or district board of canvassers in Metro Manila Area,
shall be specifically noted in the minutes of their respective proceedings. . . . The fact that some votes written solely as "Sanchez" were declared stray
votes because of the inspectors' erroneous belief that Gil Sanchez had not
been disqualified as a candidate, involves an erroneous appreciation of the
It is clear from the above-quoted provision of the law that
ballots. It is established by the law as well as jurisprudence . . . that errors in
"pre-proclamation cases (are) not allowed in elections for President,
the appreciation of ballots by the board of inspectors are proper subject for
Vice-President, Senator and Member of the House of Representatives.''
election protest and not for recount or reappreciation of ballots.
What is allowed is the correction of "manifest errors in the certificate of
canvass or election returns." To be manifest, the errors must appear on the
face of the certificates of canvass or election returns sought to be corrected 2. The appreciation of the ballots cast in the precincts is not a "proceeding of
and/or objections thereto must have been made before the board of the board of canvassers" for purposes of
canvassers and specifically noted in the minutes of their respective pre-proclamation proceedings under Section 241, Omnibus Election Code,
proceedings. but of the boards of election inspectors who are called upon to count and
appreciate the votes in accordance with the rules of appreciation provided in
Section 211, Omnibus Election Code. Otherwise stated, the appreciation of
In the case at bar, however, petitioner prays not only for a restraining order
ballots is not part of the proceedings of the board of canvassers. The function
enjoining "the proclamation of the 24th highest ranking senatorial candidate
of ballots appreciation is performed by the boards of election inspectors at
without first acting upon petitioner's letter/complaint dated May 14, 1992
the precinct level. (Emphasis supplied)
and urgent petition dated May 22, 1992" but also prays that judgment be
rendered requiring the Comelec to re-open the ballot boxes in 80,348
precincts in 13 provinces therein enumerated (Petition, p. 9) including Metro 3. The scope of pre-proclamation controversy is limited to the issues
Manila, scan the ballots for "Chavez" votes which were invalidated or enumerated under Sec. 243 of the Omnibus Election Code. The enumeration
declared stray and credit said scanned "Chavez" votes in favor of petitioner. therein of the issues that may be raised in pre-proclamation controversy is
restrictive and exclusive. In the absence of any clear showing or proof that
the election returns canvassed are incomplete or contain material defects
It is quite obvious that petitioner's prayer does not call for the correction of
(sec. 234), appear to have been tampered with, falsified or prepared under
"manifest errors in the certificates of canvass or election returns" before the
duress (sec. 235) and/or contain discrepancies in the votes credited to any
Comelec but for the re-opening of the ballot boxes and appreciation of the
candidate, the difference of which affects the result of the election (sec. 236),
ballots contained therein. Indeed, petitioner has not even pointed to any
 63
which are the only instances where a
pre-proclamation recount may be resorted to, granted the preservation of
the integrity of the ballot box and its contents, Sanchez' petition must fail.
The complete election returns whose authenticity is not in question, must
be prima facie considered valid for the purpose of canvassing the same and
proclamation of the winning candidates.
xxx xxx xxx
7. The ground for recount relied upon by Sanchez is clearly not among the
issues that may be raised in pre-proclamation controversy. His allegation of
invalidation of "Sanchez" votes intended for him bear no relation to the
correctness and authenticity of the election returns canvassed. Neither the
Constitution nor statute has granted the Comelec or the board of
canvassers the power in the canvass of election returns to look beyond the
face thereof, once satisfied of their authenticity (Abes v. Comelec, 21 SCRA
1252, 1256).
In the case at bar, petitioner's allegation that "Chavez" votes were either
invalidated or declared stray has no relation to the correctness or
authenticity of the election returns canvassed. Otherwise stated, petitioner
has not demonstrated any manifest error in the certificates of canvass or
election returns before the Comelec which would warrant their correction.
As the authenticity of the certificates of canvass or election returns are not
questioned, they must be prima facie considered valid for purposes of
canvassing the same and proclamation of the winning candidates (Sanchez
v. Comelec, supra).
Premises considered, the Court Resolved to DISMISS the instant petition
for lack of merit.
SO ORDERED.
G.R. No. 132603 September 18, 2000
ELPIDIO M. SALVA, VILMA B. DE LEON, CLEMENTE M. MATIRA,
REGION P. DE LEON, MARILOU C. DE LEON, JAIME RELEVO, JOEY S.
VERGARA, CARMENCITA A. SALVA, DIONISIO B. DE LEON, JORGE S.
VERGARA, GORGONIO B. DE LEON, AND OTHERS TOO NUMEROUS
TO ENUMERATE AS A CLASS SUIT,petitioners,
vs.
HON. ROBERTO L. MAKALINTAL, Presiding Judge, Regional Trial
Court, Br. XI, Balayan, Batangas; HON. SANGGUNIANG PANGLALA
WIGAN OF BATANGAS, BATANGAS CITY; HON. SANGGUNIANG
PANGBAYAN, CALACA, BATANGAS; and HON. COMMISSION ON
ELECTIONS, respondents.
BUENA, J.:
This is an appeal by certiorari under Rule 45 of the Rules of Court seeking
the reversal of the Order dated February 25, 1998,1 of the Regional Trial
Court of Balayan, Batangas, Branch XI,2 in Civil Case No. 3442, denying
the issuance of a temporary restraining order and/or preliminary injunction
to enjoin the Commission on Elections (COMELEC) from holding the
plebiscite scheduled on February 28, 1998, on the ground of lack of
jurisdiction.
The facts are undisputed.
On February 23, 1998, petitioners, as officials and residents of barangay
San Rafael, Calaca, Batangas, filed a class suit against the Sangguniang
Panglalawigan of Batangas, Sangguniang Pambayan of Calaca, Batangas,
and the Commission on Elections (COMELEC), docketed as Civil Case No.
3442, before the Regional Trial Court of Balayan, Batangas, Branch XI, for
annulment of Ordinance No. 05 and Resolution No. 345, series of 1997,
both enacted by the Sangguniang Panglalawigan of Batangas, and
COMELEC Resolution No. 2987, series of 199S, with prayer for preliminary
injunction/temporary restraining order. Ordinance No. 05 3 declared the
abolition of barangay San Rafael and its merger with barangay Dacanlao,
municipality of Calaca, Batangas and accordingly instructed the COMELEC
to conduct the required plebiscite as provided under Sections 9 and 10 of
Republic Act No. 7160, otherwise known as the Local Government Code of
1991.4 On the other hand, Resolution No. 345 5 affirmed the effectivity of
Ordinance No. 05, thereby overriding the veto6 exercised by the governor of
Batangas.7 Ordinance No. 05 was vetoed by the governor of Batangas for
being ultra vires, particularly, as it was not shown that the essential
requirements under Section 9, in relation to Section 7, of Republic Act No.
7160, referring to the attestations or certifications of the Department of
Finance (DOF), National Statistics Office (NSO) and the Land Management
Bureau of the Department of Environment and Natural Resources (DENR),
were obtained. Pursuant to the foregoing ordinance and resolution, on
February 10, 1998, the COMELEC promulgated Resolution No. 2987,
providing for the rules and regulations governing the conduct of the required
plebiscite scheduled on February 28, 1998, to decide the issue of the
abolition of barangay San Rafael and its merger with barangay Dacanlao,
Calaca, Batangas.8Simultaneous with the filing of the action before the trial
court, petitioners also filed an ex parte motion for the issuance of a temporary
restraining order to enjoin respondents from enforcing Ordinance No. 05,
Resolution No. 345, and COMELEC Resolution No. 2987.
In an Order dated February 25, 1998, the trial court denied the ex
parte motion for the issuance of a temporary restraining order and/or
preliminary injunction for lack of jurisdiction. According to the trial court, the
temporary restraining order/injunction sought by petitioners is directed only to
COMELEC Resolution No. 2987. The trial court ruled that any petition or
action questioning an act, resolution or decision of the COMELEC must be
brought before the Supreme Court.9
On February 27, 1998, petitioners filed the instant petition with prayer for a
temporary restraining order, without filing a motion for reconsideration of the
trial court's Order dated February 25, 1998, claiming the urgency or
immediate necessity to enjoin the conduct of the plebiscite scheduled on
February 28, 1998.10
In a Resolution dated March 10, 1998, the Court directed the parties to
maintain the status quo prevailing at the time of the filing of the petition.11
On August 28, 1998, the Solicitor General filed a Manifestation and Motion
in lieu of Comment, declaring that he concurs with petitioners' cause and
recommending that the instant petition be given due course.12 Consequently,
the Court further resolved on September 29, 1998 to require the COMELEC
and the Sangguniang Panglalawigan of Batangas to submit their own
Comment on the petition.
In a Resolution dated June 15, 1999, the Court resolved to give due course
to the petition and require the parties to submit their respective
memoranda.13
In their Memorandum filed on October 26, 1999, petitioners submitted the
following issue for the resolution of this Court:
"WHETHER OR NOT THE RESPONDENT COURT HAS JURISDICTION
TO ENJOIN THE COMELEC FROM IMPLEMENTING ITS RESOLUTION
NO. 2987, SERIES OF 1998, WHICH PROVIDED FOR THE RULES AND
REGULATIONS FOR THE CONDUCT OF THE PLEBISCITE SCHEDULED
ON FEBRUARY 28, 1998 TO DECIDE ON THE ABOLITION OF
BARANGAY SAN RAFAEL AND ITS MERGER WITH BARANGAY
DACANLAO, CALACA, BATANGAS, PENDING THE DETERMINATION OF
CIVIL CASE NO. 3442 FOR THE ANNULMENT OF ORDINANCE NO. 05,
RESOLUTION NO. 345 AND COMELEC RESOLUTION NO. 2987."14
First, petitioners contend that the assailed Order dated February 25, 1998, of
the Regional Trial Court of Balayan, Batangas, Branch XI, encourages
multiplicity of suit[s] and splitting a single cause of action," contrary to Section
3, Rule 2, of the Rules of Court.15 Petitioners maintain that since COMELEC
Resolution No. 2987 was only issued pursuant to Ordinance No. 05 and
Resolution No. 345 of the Sangguniang Panglalawigan of Batangas, the
propriety of the issuance of COMELEC Resolution No. 2987 is dependent
upon the validity of the Ordinance No. 05 and Resolution No. 345. 16 And
considering that the jurisdiction of the trial court to hear and determine the
validity of Ordinance No. 05 and Resolution No. 345 is not disputed, the
assailed Order dated February 25, 1998, directing petitioners to seek the
preliminary injunction and/or temporary restraining order before this Court,
advances multiplicity of suits and splitting a single cause of action.
 64
Second, petitioners assert that when the COMELEC exercises its quasi
judicial functions under Section 52 of the Omnibus Election Code (Batas
Pambansa Blg. 881), its acts are subject to the exclusive review by this
Court; but when the COMELEC performs a purely ministerial but, such act
is subject to scrutiny by the Regional Trial Court,17citing Filipinas
Engineering and Machine Shop vs. Ferrer (135 SCRA 25 [1985]), thus:
"It cannot be gainsaid that the powers vested by the Constitution and the
law on the Commission on Elections may either be classified as those
pertaining to its adjudicatory or quasi-judicial functions, or those which are
inherently administrative and sometimes ministerial in character."'18
Corollary thereto, petitioners submit that "[t]he conduct of [a] plebiscite,
pursuant to Ordinance No. 05 and Resolution No. 345, is not adjudicatory
[or quasi judicial] in nature but simply ministerial or administrative in nature
[and only] in obedience to the aforesaid Ordinance and Resolution,"
citing Garces vs. Court of Appeals, 259 SCRA 99 (1996), thus:
". . . To rule otherwise would surely burden the Court with trivial
administrative questions that are best ventilated before the RTC [Regional
Trial Court], a court which the law vests with the power to exercise original
jurisdiction over 'all cases not within the exclusive jurisdiction of any court,
tribunal, person or body exercising judicial or quasi judicial functions'."19
Lastly, petitioners allege that while the plebiscite sought to be enjoined has
already been conducted on February 28, 1998, the instant petition is far
from being moot and academic, claiming that the actual holding of the said
plebiscite could not validate an otherwise invalid ordinance and resolution;20
that there are still substantial matters to be resolved; 21
assuming arguendo that this petition has become moot and academic, ". . .
courts will decide a question otherwise moot and academic if it is 'capable
of repetition, yet evading review"';22 and finally, petitioners maintain that this
Court has resolved to require the parties to maintain the status quo
prevailing at the time of the filing of the petition, that is, a day before the
plebiscite was scheduled to be conducted.23
Concurring with petitioners' arguments, the Solicitor General, in his
Memorandum filed on September 7, 1999, asserts that ". . . [I]t is already
settled in this jurisdiction that what is contemplated by the terms 'any
decision, order or ruling' of the COMELEC reviewable by certiorari to this
Honorable Court, as provided under Section 7, Article IX-A of the [1987]
Constitution, are those that relate to the COMELEC's exercise of
its adjudicatory or quasi-judicialpowers involving elective regional,
provincial and city officials." (Citations omitted.)24 The Solicitor General
further argues that the issuance of COMELEC Resolution No. 2987 is a
ministerial duty of the COMELEC in the exercise of its administrative
functions, hence, it is submitted that the aforecited constitutional provision
is inapplicable.
Public respondent Commission on Elections (COMELEC), on the other
hand, submits that the power to review or reverse COMELEC Resolution
No. 2987 solely belongs to this Court, citing the earlier cases of Zaldivar vs.
Estenzo(23 SCRA 533, 540-541[1968]); Luison vs. Garcia (L-10916, May
20, 1957); Macud vs. COMELEC (23 SCRA 224 [1968]); and Aratuc vs.
COMELEC (88 SCRA 251, 272 [1979]);25 thus:
". . . For even without the express constitutional prescription that only this
Court may review the decisions, orders and rulings of the Commission on
Elections, it is easy to understand why no interference whatsoever with the
performance of the Commission on Elections of its functions should be
allowed unless emanating from this Court. The observation of Acting Chief
Justice J.B.L. Reyes in Albano v. Arranz while not precisely in point,
indicates the proper approach. Thus: 'It is easy to realize the chaos that
would ensue if the Court of First Instance of each and every province were
to arrogate unto itself the power to disregard, suspend, or contradict any
order of the Commission on Elections; that constitutional body would be
speedily reduced to impotence."26
The COMELEC further argues that ". . . if a Regional Trial Court does not
have jurisdiction to issue writs against statutory agencies of government like
the ones cited above [referring to the former Court of Industrial Relations,
Philippine Patent Office, Public Service Commission, Social Security
Commission, National Electrification Administration and Presidential
Commission on Good Government], a fortiori it can not have any such
jurisdiction over the Commission on Elections, a constitutional independent
body expressly clothed by the 1987 Constitution with, among others,
quasi-judicial functions and tasked with one of the most paramount aspects
of a democratic government. . . ."27 Finally, the COMELEC contends that the
temporary restraining order sought by petitioners has been rendered moot
and academic by the actual holding of the plebiscite sought to be enjoined.28
The appeal is meritorious.
Section 7, Article IX-A of the 1987 Constitution provides in part that:
"SECTION 7. . . . . Unless otherwise provided by this Constitution or by law,
any decision, order, or ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within this days from
receipt of a copy thereof."
In Garces vs. Court of Appeals (259 SCRA 99 [1996]) and Filipinas
Engineering and Machine Shop vs. Ferrer (135 SCRA 25 [1985]), we found
occasion to interpret the foregoing provision in this wise:
". . . What is contemplated by the term 'final orders, rulings and decisions' of
the COMELEC reviewable by certiorari by the Supreme Court as provided by
law are those rendered in actions or proceedings before the COMELEC and
taken cognizance of by the said body in the exercise of its adjudicatory or
quasi-judicial powers."29
In Filipinas, we have likewise affirmed that powers vested by the Constitution
and the law on the Commission on Elections may either be classified as
those pertaining to its adjudicatory or quasi-judicial functions, or those which
are inherently administrative and sometimes ministerial in character. 30
As aptly explained by the Solicitor General, in the instant case, after the
COMELEC ascertained the issuance of the ordinance and resolution
declaring the abolition of barangay San Rafael, it issued COMELEC
Resolution No. 2987 calling for a plebiscite to be held in the
affected barangays, pursuant to the provisions of Section 10 of Republic Act
No. 7160. We agree with the Solicitor General that ". . . . [t]he issuance of
[COMELEC] Resolution No. 2987 is thus a ministerial duty of the COMELEC
that is enjoined by law and is part and parcel of its administrative functions. It
involves no exercise of discretionary authority on the part of respondent
COMELEC; let alone an exercise of its adjudicatory or quasi-judicial power to
hear and resolve controversies defining the rights and duties of party-litigants,
relative to the conduct of elections of public officers and the enforcement of
the election laws." (Citation omitted.)31Briefly, COMELEC Resolution No.
2987 which provides for the rules and regulations governing the conduct of
the required plebiscite, was not issued pursuant to the COMELEC's
quasi-judicial functions but merely as an incident of its inherent administrative
functions over the conduct of plebiscites, thus, the said resolution may not be
deemed as a "final order" reviewable by certiorari by this Court. Any question
pertaining to the validity of said resolution may be well taken in an ordinary
civil action before the trial courts.
Even the cases cited by the public respondent in support of its contention —
that the power to review or reverse COMELEC Resolution No. 2987 solely
belongs to this Court are simply not in point. Zaldivar vs. Estenzo32 speaks of
the power of the COMELEC to enforce and administer all laws relative to the
conduct of elections to the exclusion of the judiciary. In the present case,
petitioners are not contesting the exclusive authority of the COMELEC to
enforce and administer election laws. Luison vs. Garcia33 refers to this
Court's power to review "administrative decisions," particularly referring to a
COMELEC resolution declaring a certain certificate of candidacy null and
void, based on Article X, Section 2 of the 1935 Constitution. In Macud vs.
COMELEC,34 we reiterated that when a board of canvassers rejects an
election return on the ground that it is spurious or has been tampered with,
the aggrieved party may elevate the matter to the COMELEC for appropriate
relief, and if the COMELEC sustains the action of the board, the aggrieved
party may appeal to this Court. In both Luison and Macud, the assailed
COMELEC resolutions fall within the purview of "final orders, rulings and
decisions" of the COMELEC reviewable by certiorari by this Court.
In view of the foregoing, public respondent's other contentions deserve scant
consideration.
 65
WHEREFORE, the petition for review is hereby GRANTED, and the
assailed Order dated February 25, 1998, of the Regional Trial Court of
Balayan, Batangas, Branch XI is hereby SET ASIDE and ANNULLED. The
Regional Trial Court of Balayan, Batangas, Branch XI is ordered to proceed
with dispatch in resolving Civil Case No. 3442. The execution of the result of
the plebiscite held on February 28, 1998 shall be deferred depending on the
outcome of Civil Case No. 3442.
SO ORDERED.
G.R. No. 107987. March 31, 1993.
JOSE M. BULAONG, M.D., petitioner, vs. COMELEC, FIRST DIVISION,
and LUIS VILLAFUERTE, respondents.
Chaves, Hechanova & Lim Law Offices for petitioner.
Brillantes, Nachura, Navarro & Arcilla for private respondent.
Simando & Associates for intervenor.
SYLLABUS
1. POLITICAL LAW; COMMISSION ON ELECTIONS; REFERRAL OF
PENDING MOTIONS FOR RECONSIDERATION IN A DIVISION TO THE
COMELEC EN BANC, NOT MANDATORY; UNANIMOUS VOTE OF
DIVISION MEMBERS NECESSARY TO BE CONSIDERED EN BANC. — It
is not mandatory on the part of a division of the COMELEC to refer all
pending motions for reconsideration to the COMELEC en banc. Being an
interlocutory matter, the question now before us is whether or not the First
Division of the COMELEC committed grave abuse of discretion in refusing
to refer petitioner's motion for reconsideration to the COMELEC en banc. It
is our opinion that the COMELEC did not commit grave abuse of discretion.
For said motion to be considered en banc, it requires the unanimous vote of
the members of the division as mandated by Section 2 Rule 3 of the
COMELEC Rules. In the case at bar, there was an absence of such vote.
Instead of withholding its decision on such interlocutory matter, the First
Division of the COMELEC decided to exercise its power under Section 6 of
Rule 20 of the COMELEC Rules with states: "When the allegations in a
protest or counter-protest so warrant, or whenever in the opinion of the
Commission or Division the interest of justice so demands, it shall
immediately order the ballot boxes containing ballots and their keys, list of
voters with voting records, book of voters and other documents used in the
election to be brought before the Commission, and shall order the revision
of the ballots . . .
2. ID.; ID.; MANDAMUS DOES NOT LIE AGAINST A DISCRETIONARY
POWER OF THE COMELEC. — A mandamus proceeding involving a
discretionary power of the COMELEC does not lie. A perusal of the
aforecited section impliedly reveals the discretionary power of the
COMELEC Division or En Banc to order a revision of ballots. This can be
gleaned from the use of the phrase, "whenever in the opinion of the
Commission or Division the interest of justice so demand." Petitioner is to
be reminded that mandamus, as a remedy, is available to compel the doing
of an act specifically enjoined by law as a duty. It cannot compel the doing
of an act involving the exercise of discretion one way or the other.
Undoubtedly, the First Division of the COMELEC was within its powers in
designating Manila as the venue of the revision of ballots.
3. ID.; ID.; MOTIONS FOR RECONSIDERATIONS FILED WITHIN THE
FIVE (5) DAY REGLEMENTARY PERIOD PRESCRIBED BY SEC. 2,
RULE 19, COMELEC RULES, CAN BE REFERRED TO THE COMELEC
EN BANC. — Even if we are to consider the case at bar as falling within the
jurisdiction of the COMELEC en banc by virtue of Section 3 of Rule 5(c) of
the COMELEC Rules, it goes without saying that only motions for
reconsideration filed within the five (5) day reglementary period as
prescribed by Section 2 of Rule 19 of said Rules can be referred to the
COMELEC en banc. Petitioner should have filed his motion for
reconsideration on or before September 21, 1992 considering that he
received the COMELEC's order dated September 9, 1992 on September 16,
1992.
DECISION
ROMERO, J p:
Petitioner Jose M. Bulaong, M.D. and private respondent Luis Villafuerte
were both candidates for the office of the provincial governor of Camarines
Sur in the May 11, 1992 local elections. Petitioner, having obtained a total of
184,654 votes as against private respondent's vote of 155,359 or a difference
of 29,295 votes, was proclaimed by the Provincial Board of Canvassers as
the duly elected governor on June 30, 1992. Accordingly, petitioner took his
oath of office on July 1, 1992.
On July 9, 1992, private respondent filed an election protest questioning the
precinct results of ten (10) Municipalities of Baao, Buhi, Cabusao, Calabanga,
Libmanan, Pamplona, Pasacao, Pili, San Fernando and Sipocot end the City
of Iriga. Subsequently, on August 21, 1992, private respondent filed an
Omnibus Motion praying that the venue for the ballot revision proceedings be
conducted at the main office of the Commission on Elections in Intramuros,
Manila. 1 Petitioner opposed private respondent's prayer citing that ballot
revision proceedings need not be held in Manila since there was no untoward
incident that happened during the canvassing of votes from May 12 to May
30, 1992 in Naga City.
Acting on private respondent's prayer, the First Division of the COMELEC
through its order dated September 9, 1992 granted private respondent's
prayer for a revision of ballots to be held in Manila. 2 This order was received
by petitioner on September 16, 1992.
On September 21,1992, petitioner, fearing that his motion for reconsideration
might not be finished on time, filed an "Urgent Motion for One-day
Extension." 3 A day after or on September 22, 1992, petitioner filed his
motion for reconsideration dated September 21, 1992. 4
There being no resolution yet on his motion for extension, petitioner then filed
a "Supplement to Urgent Motion for One-day Extension," on October 6, 1992.
5
On October 12, 1992, petitioner received his copy of the COMELEC's order
dated October 6, 1992 denying petitioner's urgent motion for one day
extension. 6 On October 14, 1992, petitioner moved to reconsider. 7
On October 19,1992, the COMELEC thru its First Division denied petitioner's
motion for reconsideration dated September 21, 1992. 8 On the same day,
petitioner also filed an Omnibus motion praying that his two motions for
reconsideration (Annexes G and J) be certified to the COMELEC en banc
pursuant to Section 5 of Rule 19 of the COMELEC Rules of Procedure. 9
On October 30, 1992, petitioner filed with the COMELEC en banc a
manifestation end motion praying that his motions for reconsideration 10 and
his Omnibus Motion 11 filed with the First Division be ordered certified to it for
resolution. 12 On December 3, 1992, the First Division of the COMELEC
denied petitioner's manifestation that its motions for reconsiderations be
certified to the COMELEC en banc because the order directing the Provincial
Election Supervisor of Camarines Sur to immediately send the 649 ballot
boxes to Manila is merely interlocutory. 13
Hence, this instant petition for certiorari and mandamus with prayer for a
temporary restraining order to enjoin the order to the First Division of the
COMELEC dated September 9,1992. On December 14,1992, this Court
issued a temporary restraining order against public respondent.
On January 26, 1992, Marito Bernales, a candidate for the position of
provincial board member in Camarines Sur, filed a motion for intervention
alleging that the temporary restraining order we issued has affected the
outcome of his electoral protest with the COMELEC (EPC 92-38), his votes
being in the same contested ballots subject of the revision proceedings in the
case at bar. We granted movant's motion to intervene in our resolution dated
February 9, 1992.
The issue at hand is whether or not the First Division of the COMELEC
committed grave abuse of discretion when it refused to refer petitioner's
motions for reconsideration 14 to the COMELEC en banc notwithstanding the
 66
mandate of Section 5 of Rule 19 of the COMELEC Rules of Procedure Even if we are to consider the case at bar as falling within the jurisdiction of
(COMELEC Rules) which provides that: the COMELEC en banc by virtue of Section 3 of Rule 5(c) of the COMELEC
Rules, it goes without saying that only motions for reconsideration filed within
the five (5) day reglementary period as prescribed by Section 2 of Rule 19 20
"How motion for reconsideration disposed of — Upon the filing of a motion
of said Rules can be referred to the COMELEC en banc. Petitioner should
to reconsider a decision, resolution, order or ruling of a Division, the Clerk of
have filed his motion for reconsideration on or before September 21, 1992
Court concerned shall within twenty four (24) hours from the filing thereof,
considering that he received the COMELEC's order dated September 9,
notify the Presiding Commissioner. The latter shall within two (2) days
1992 on September 16, 1992. Petitioner may have been overly optimistic in
thereafter, certify the case to the Commission en banc."
expecting that his "urgent motion for one-day extension" would be granted
forthwith by the First Division, which it did not. Hence, upon the lapse of five
While petitioner concedes that the order of the COMELEC designating (5) days, the order of the COMELEC dated September 9, 1992 can no longer
Manila as the venue of the revision proceedings dated September 9, 1992 be questioned; much less can it be referred to the COMELEC en banc.
is interlocutory, petitioner nonetheless contends that a reading of Section 2
of Rule 3 15 in conjunction with Section 5 (c) of the same rule 16 would
WHEREFORE, the instant petition is hereby DISMISSED. The temporary
reveal that it is the duty of the First Division of the COMELEC to refer his
restraining order issued by this court against the First Division of the
motion for reconsideration to the COMELEC en banc, since the matter
COMELEC enjoining the transfer of ballot boxes to Manila is hereby LIFTED.
concerning the venue of the revision of ballots is a substantial issue which
the latter should review. 17
SO ORDERED.
Petitioner prays that a writ of mandamus he issued directing the First
Division of the COMELEC to certify and elevate his motions for G.R. No. 139853 September 5, 2000
reconsideration to the COMELEC en banc.
FERDINAND THOMAS M. SOLLER, petitioner,
We vote to dismiss the instant petition. It is not mandatory on the part of a vs.
division of the COMELEC to refer all pending motions for reconsideration to COMMISSION ON ELECTIONS, REGIONAL TRIAL COURT OF
the COMELEC en banc. PINAMALAYAN, ORIENTAL MINDORO (Branch 42) and ANGEL M.
SAULONG, respondents.
Admittedly, the order regarding the revision of ballots is an interlocutory
order because it still requires a party to perform certain acts leading to the RESOLUTION
final adjudication of a case. 18 The order in the case at bar is for the
Provincial Election Supervisor of Camarines Sur to transfer the ballot boxes
QUISUMBING, J.:
from Camarines Sur to Manila for a recount and revision of ballots, for the
purpose of determining who won the gubernatorial race in Camarines Sur.
This special civil action for certiorari seeks to annul the resolution
promulgated on August 31, 1999, in COMELEC special relief case SPR No.
Being an interlocutory matter, the question now before us is whether or not
10-99. The resolution dismissed petitioner's petition to set aside the orders of
the First Division of the COMELEC committed grave abuse of discretion in
the Regional Trial Court of Pinamalayan, Oriental Mindoro, dated October 1,
refusing to refer petitioner's motion for reconsideration to the COMELEC en
1998 and February 1, 1999, which denied petitioner's motion to dismiss the
banc. It is our opinion that the COMELEC did not commit grave abuse of
election protest filed by private respondent against petitioner and the motion
discretion.
for reconsideration, respectively.

For said motion to be considered en banc, it requires the unanimous vote of

Petitioner and private respondent were both candidates for mayor of the
the members of the division as mandated by Section 2 of Rule 3 of the
municipality of Bansud, Oriental Mindoro in the May 11, 1998 elections. On
COMELEC Rules. In the case at bar, there was an absence of such vote.
May 14, 1998, the municipal board of canvassers proclaimed petitioner
Instead of withholding its decision on such interlocutory matter, the First
Ferdinand Thomas Soller duly elected mayor.
Division of the COMELEC decided to exercise its power under Section 6 of
Rule 20 of the COMELEC Rules which states:
On May 19, 1998, private respondent Angel Saulong filed with the
COMELEC a "petition for annulment of the proclamation/exclusion of election
"When the allegations in a protest or counter-protest so warrant, or
return".1 On May 25, 1998, private respondent filed with the Regional Trial
whenever in the opinion of the Commission or Division the interest of justice
Court of Pinamalayan, Oriental Mindoro, an election protest against petitioner
so demands, it shall immediately order the ballot boxes containing ballots
docketed as EC-31-98.
and their keys, list of voters with voting records, book of voters and other
documents used in the election to be brought before the Commission, and
shall order the revision of the ballots . . . 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
"The revision of ballots shall be made in the office of the Clerk of Court
concerned or at such places as the Commission or Division shall designate,
and shall be completed within three (3) months from the date of the order, On July 3, 1998, COMELEC dismissed the pre-proclamation case filed by
unless otherwise directed by the Commission." (Emphasis provided) private respondent.

Similarly, a mandamus proceeding involving a discretionary power of the
COMELEC does not lie. A perusal of the aforecited section impliedly
reveals the discretionary power of the COMELEC Division or En Banc to
order a revision of ballots. This can be gleaned from the use of the phrase,
"whenever in the opinion of the Commission or Division the interest of
justice so demand." Although in most instances the revision of ballots takes
place in the office of the Clerk of Court concerned, revision of ballots may
also be held in "such places as the Commission or Division shall
designate." Petitioner is to be reminded that mandamus, as a remedy, is
available to compel the doing of an act specifically enjoined by law as a duty.
It cannot compel the doing of an act involving the exercise of discretion one
way or the other. 19 Undoubtedly, the First Division of the COMELEC was
within its powers in designating Manila as the venue of the revision of
ballots.
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.
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.3
 67
Since 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
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."
Thus, in Sarmiento vs. COMELEC5 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 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. 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 Procedure9 and corresponding
receipts10 itemized as follows:
P368.00 - 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 cases13 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.
 68
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, P 10.00 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, errors 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.
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 persoral knowledge.15Since 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.1âwphi1Private 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
G.R. No. 201796 January 15, 2013
GOVERNOR SADIKUL A. SAHALI and VICE-GOVERNOR RUBY M.
SAHALl, Petitioners,
vs.
COMMISSION ON ELECTIONS (FIRST DIVISION), RASHIDIN H. MA TBA
and JILKASI J. USMAN,Respondents.
RESOLUTION
REYES, J.:
This is a Petition for Certiorari under Rule 65 in relation to Rule 64 of the
Rules of Court filed by Sadikul A. Sahali (Sadikul) and Ruby M. Sahali (Ruby),
assailing the Order1 dated May 3, 2012 issued by the First Division of the
Commission on Elections (COMELEC) in EPC Nos. 2010-76 and 2010-77.
During the May 10, 2010 elections, Sadikul and private respondent Rashidin
H. Matba (Matba) were two of the four candidates who ran for the position of
governor in the Province of Tawi-Tawi while Ruby and private respondent
Jilkasi J. Usman (Usman) ran for the position of Vice-Governor.2
On May 14, 2010, the Provincial Board of Canvassers (PBOC) proclaimed
petitioners Sadikul and Ruby as the duly elected governor and vice-governor,
respectively, of the province of Tawi-Tawi. In the statement of votes issued
by the PBOC, petitioner Sadikul garnered a total of 59,417 as against private
respondent Matba’s 56,013,3 while petitioner Ruby prevailed over private
respondent Usman, with votes of 61,005 and 45,127, respectively.4
Alleging that the said elections in the Province of Tawi-Tawi were attended
by massive and wide-scale irregularities, Matba filed an Election Protest Ad
Cautelam5 with the COMELEC. Matba contested the results in 39 out of 282
clustered precincts that functioned in the province of Tawi-Tawi. The said
election protest filed by Matba was raffled to the First Division of the
COMELEC and was docketed as EPC No. 2010-76.
Usman also filed an Election Protest Ad Cautelam6 with the COMELEC,
contesting the results in 39 out of the 282 clustered precincts in the Province
of Tawi-Tawi. Usman’s election protest was likewise raffled to the First
Division of the COMELEC and was docketed as EPC No. 2010-77. The
respective election protests filed by private respondents Matba and Usman
prayed, inter alia, for the technical examination of the ballots, Election Day
Computerized Voters List (EDCVL), the Voters Registration Record (VRR),
and the Book of Voters in all the protested precincts of the province of
Tawi-Tawi.7
After Sadikul filed his Answer8 with counter-protest, a preliminary conference
was conducted by the COMELEC in EPC No. 2010-76. On November 24,
2011, the COMELEC issued a Preliminary Conference Order9 in EPC No.
2010-76. Thereafter, the COMELEC issued an Order10 dated November 23,
2011 which directed the retrieval and delivery of the 39 ballot boxes
containing the ballots in the 39 protested clustered precincts as well as the
election paraphernalia therein.
Meanwhile, in EPC No. 2010-77, the COMELEC, after Ruby’s filing of her
Answer11 with counter-protest, conducted a preliminary conference on
January 4, 2012. On January 20, 2012, the COMELEC issued its Preliminary
Conference Order12 in the said case.
On January 17, 2012, the COMELEC resolved to consolidate EPC No.
2010-76 and EPC No. 2010-77.
On February 9, 2012, the retrieval and delivery of the ballot boxes and other
election documents from the 39 protested precincts were completed. On
February 20, 2012, the COMELEC First Division ordered the recount of the
 69
contested ballots, directing the creation of five recount committees for the
said purpose.13
On February 24, 2012, Matba and Usman filed a Manifestation and
Ex-Parte Motion (Re: Order Dated 20 February 2012), requesting that they
be allowed to secure photocopies of the contested ballots. Further, they
moved for a technical examination of the EDCVL, the VRR and the Book of
Voters for the contested precincts in the province of Tawi-Tawi by
comparing the signature and the thumbmarks appearing on the EDCVL as
against those appearing on the VRRs and the Book of Voters.14
Private respondents Matba and Usman averred that, instead of recounting
the ballots in the pilot precincts constituting 20% of the protested precincts,
the COMELEC First Division should order the technical examination of the
said election paraphernalia from the 38 clustered precincts that are the
subject of both election protests filed by them.
On March 5, 2012, the COMELEC First Division issued an Order15 which
granted the said ex-parte motion filed by Matba and Usman. Thus, the
COMELEC First Division directed its Election Records and Statistics
Department (ERSD) to conduct a technical examination of the said election
paraphernalia by comparing the signature and thumbmarks appearing on
the EDCVL as against those appearing on the VRRs and the Book of
Voters.
On March 9, 2012, Sadikul and Ruby jointly filed with the COMELEC First
Division a Strong Manifestation of Grave Concern and Motion for
Reconsideration (Of the Order Dated March 5, 2012)16. They asserted that
the March 5, 2012 Order issued by the COMELEC First Division, insofar as
it directed the technical examination of the EDCVL, the VRR and the Book
of Voters, should be reversed on account of the following: first, the said
Order was issued without due process since the COMELEC First Division
did not allow them to oppose the said ex-parte motion; second, the
COMELEC First Division cannot just order a technical examination in the
absence of published rules on the matter; and third, the COMELEC First
Division could not just examine the said election paraphernalia without
violating the Precautionary Protection Order issued by the Presidential
Electoral Tribunal in the protest case between Manuel Roxas and Jejomar
Binay.
On March 15, 2012, Matba and Usman filed with the COMELEC First
Division their counter-manifestation17 to the said manifestation and motion
for reconsideration filed by Sadikul and Ruby. They asserted therein that
Sadikul and Ruby were not deprived of due process when the COMELEC
First Division issued its March 15, 2012 Order. They averred that their
respective election protests and the Preliminary Conference Orders issued
by the COMELEC First Division all indicated that they would move for the
technical examination of the said election paraphernalia. Nonetheless, they
pointed out that Sadikul and Ruby failed to express any objection to their
intended motion for technical examination of the said election
paraphernalia.
Further, Matba and Usman claimed that said motion for technical
examination is not a contentious motion since the intended technical
examination would not prejudice the rights of Sadikul and Ruby considering
that the same only included the EDCVL, the VRR and the Book of Voters,
and not the ballots.
On March 23, 2012, Sadikul and Ruby then filed with the COMELEC First
Division their Reply18 to the counter-manifestation filed by Matba and
Usman. In turn, Matba and Usman filed with the COMELEC First Division
their Rejoinder19 on March 30, 2012. On May 3, 2012, the COMELEC First
Division issued the herein assailed Order20which denied the said motion for
reconsideration of the March 5, 2012 Order filed by Sadikul and Ruby. The
COMELEC First Division maintained that Sadikul and Ruby were not
deprived of due process. It pointed out that the intention of Matba and
Usman to ask for the technical examination of the said election documents
had always been apparent from the filing of their separate election protests,
preliminary conference briefs and their intention to offer as evidence all
election documents and paraphernalia such as the EDCVL, VRRs and
Book of Voters on the protested precincts.
Further, the COMELEC First Division opined that the insinuation asserted
by Sadikul and Ruby that there are no published rules governing the
technical examination of election paraphernalia is untenable. It pointed out
that the technical examination of election paraphernalia is governed by
Section 1, Rule 18 of COMELEC Resolution No. 8804. As to the
Precautionary Protection Order issued in the protest case between Manuel
Roxas and Jejomar Binay, the COMELEC First Division averred that it would
request a clearance from the Presidential Electoral Tribunal for the conduct
of said technical examination.
Hence, petitioners Sadikul and Ruby filed the instant petition with this Court
essentially asserting that the COMELEC First Division committed grave
abuse of discretion amounting to lack or excess of jurisdiction when: first, it
did not give them the opportunity to oppose the motion for technical
examination filed by Matba and Usman; and second, it ordered the technical
examination of the said election paraphernalia despite the lack of sanction
and published rules governing such examination.
The petition is denied.
The petitioners’ resort to the extraordinary remedy of certiorari to assail an
interlocutory order issued by the COMELEC First Division is amiss. "A party
aggrieved by an interlocutory order issued by a Division of the COMELEC in
an election protest may not directly assail the order in this Court through a
special civil action for certiorari. The remedy is to seek the review of the
interlocutory order during the appeal of the decision of the Division in due
course."21
Under the Constitution, the power of this Court to review election cases
falling within the original exclusive jurisdiction of the COMELEC only extends
to final decisions or resolutions of the COMELEC en banc, not to
interlocutory orders issued by a Division thereof. Section 7, Article IX of the
Constitution mandates:
Sec. 7. Each Commission shall decide by a majority vote of all its Members
any case or matter brought before it within sixty days from the date of its
submission for decision or resolution. A case or matter is deemed submitted
for decision or resolution upon the filing of the last pleading, brief, or
memorandum required by the rules of the Commission or by the Commission
itself. Unless otherwise provided by this Constitution or by law, any decision,
order, or ruling of each Commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days from receipt of a copy
thereof. (Emphasis ours)
In Ambil, Jr. v. COMELEC,22 this Court elucidated on the import of the said
provision in this wise:
We have interpreted this provision to mean final orders, rulings and decisions
of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial
powers." This decision must be a final decision or resolution of the Comelec
en banc, not of a division, certainly not an interlocutory order of a division.
The Supreme Court has no power to review via certiorari, an interlocutory
order or even a final resolution of a Division of the Commission on Elections.
The mode by which a decision, order or ruling of the Comelec en banc may
be elevated to the Supreme Court is by the special civil action of certiorari
under Rule 65 of the 1964 Revised Rules of Court, now expressly provided in
Rule 64, 1997 Rules of Civil Procedure, as amended.
Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that
there be no appeal, or any plain, speedy and adequate remedy in the
ordinary course of law. A motion for reconsideration is a plain and adequate
remedy provided by law. Failure to abide by this procedural requirement
constitutes a ground for dismissal of the petition.
In like manner, a decision, order or resolution of a division of the Comelec
must be reviewed by the Comelec en banc via a motion for reconsideration
before the final en banc decision may be brought to the Supreme Court on
certiorari. The pre-requisite filing of a motion for reconsideration is mandatory.
x x x.23 (Citations omitted and emphasis supplied)
Here, the Orders dated March 5, 2012 and May 3, 2012 issued by the First
Division of the COMELEC were merely interlocutory orders since they only
disposed of an incident in the main case i.e. the propriety of the technical
 70
examination of the said election paraphernalia. Thus, the proper recourse
for the petitioners is to await the decision of the COMELEC First Division in
the election protests filed by Matba and Usman, and should they be
aggrieved thereby, to appeal the same to the COMELEC en banc by filing a
motion for reconsideration.24
The petitioners, citing the case of Kho v. COMELEC,25 nevertheless insist
that this Court may take cognizance of the instant Petition for Certiorari
since the COMELEC en banc is not the proper forum in which the said
interlocutory orders issued by the COMELEC First Division can be
reviewed.
The petitioners’ reliance on Kho is misplaced. In Kho, the issue was
whether a Division of the COMELEC may admit an answer with
counter-protest which was filed beyond the reglementary period. This Court
held that the COMELEC First Division gravely abused its discretion when it
admitted the answer with counter-protest that was belatedly filed.
On the propriety of a filing a Petition for Certiorari with this Court sans any
motion for reconsideration having been filed with the COMELEC en banc, it
was held therein that, as an exception, direct resort to this Court via
certiorari assailing an interlocutory order may be allowed when a Division of
the COMELEC commits grave abuse of discretion tantamount to lack of
jurisdiction. Thus:
As to the issue of whether or not the case should be referred to the
COMELEC en banc, this Court finds the respondent COMELEC First
Division correct when it held in its order dated February 28, 1996 that no
final decision, resolution or order has yet been made which will necessitate
the elevation of the case and its records to the Commission en banc. No
less than the Constitution requires that the election cases must be heard
and decided first in division and any motion for reconsideration of decisions
shall be decided by the commission en banc. Apparently, the orders dated
July 26, 1995, November 15 1995 and February 28, 1996 and the other
orders relating to the admission of the answer with counter-protest are
issuances of a Commission in division and are all interlocutory orders
because they merely rule upon an incidental issue regarding the admission
of Espinosa’s answer with counter-protest and do not terminate or finally
dispose of the case as they leave something to be done before it is finally
decided on the merits. In such a situation, the rule is clear that the authority
to resolve incidental matters of a case pending in a division, like the
questioned interlocutory orders, falls on the division itself, and not on the
Commission en banc. x x x
xxxx
Furthermore, a look at Section 2, Rule 3 of the COMELEC Rules of
Procedure confirms that the subject case does not fall on any of the
instances over which the Commission en banc can take cognizance of. It
reads as follows:
"Section 2. The Commission en banc. - The Commission shall sit en banc in
cases hereinafter specifically provided, or in pre-proclamation cases upon a
vote of a majority of the members of a Commission, or in all other cases
where a division is not authorized to act, or where, upon a unanimous vote
of all the members of a Division, an interlocutory matter or issue relative to
an action or proceeding before it is decided to be referred to the
Commission en banc." In the instant case, it does not appear that the
subject controversy is one of the cases specifically provided under the
COMELEC Rules of Procedure in which the Commission may sit en banc.
Neither is it shown that the present controversy a case where a division is
not authorized to act nor a situation wherein the members of the First
Division unanimously voted to refer the subject case to the Commission en
banc. Clearly, the Commission en banc, under the circumstances shown
above, can not be the proper forum which the matter concerning the
assailed interlocutory orders can be referred to.
In a situation such as this where the Commission in division committed
grave abuse of discretion or acted without or in excess of jurisdiction in
issuing interlocutory orders relative to an action pending before it and the
controversy did not fall under any of the instances mentioned in section 2,
Rule 3 of the COMELEC Rules of Procedure, the remedy of the aggrieved
party is not to refer the controversy to the Commission en banc as this is not
permissible under its present rules but to elevate it to this Court via a
petition for certiorari under Rule 65 of the Rules of Court.26(Citations omitted
and emphasis ours)
Thus, exceptionally, this Court may take cognizance of a certiorari action
directed against an interlocutory order issued by a Division of the COMELEC
when the following circumstances are present: first, the order was issued
without jurisdiction or in excess of jurisdiction or with grave abuse of
discretion tantamount to lack or excess of jurisdiction; and second, under the
COMELEC Rules of Procedure, the subject of the controversy is a matter
which (1) the COMELEC en banc may not sit and consider or (2) a Division is
not authorized to act or (3) the members of the Division unanimously vote to
refer to the COMELEC en banc.27
The exception in Kho does not apply in the instant case since the COMELEC
First Division is authorized to act on the ex-parte motion for the technical
examination of the said election paraphernalia. The COMELEC First Division
has already acquired jurisdiction over the election protests filed by Matba and
Usman. Concomitant with such acquisition of jurisdiction is the authority of
the COMELEC First Division to rule on the issues raised by the parties and
all incidents arising therefrom, including the authority to act on the ex-parte
motion for technical examination of said election paraphernalia.
In Kho, the COMELEC First Division did not acquire jurisdiction on the
answer with counter-protest since it was filed beyond the reglementary
period and, consequently, did not have any authority to act on the issues
raised therein and all incidents arising therefrom. Thus:
It is worthy to note that as early as in the case of Arrieta vs. Rodriguez, this
Court had firmly settled the rule that the counter-protest must be filed within
the period provided by law, otherwise, the forum loses its jurisdiction to
entertain the belatedly filed counter-protest. In the case at bar, there is no
question that the answer with counter-protest of Espinosa was filed outside
the reglementary period provided for by law. As such, the COMELEC First
Division has no jurisdictional authority to entertain the belated answer with
counter-protest much less pass upon and decide the issues raised therein. It
follows therefore that the order of July 26, 1995 which pertains to the
admission of the answer with counter-protest of Espinosa as well as the other
consequent orders implementing the order of admission issued by the
COMELEC First Division are void for having been issued without jurisdiction.
Even if petitioner Kho did not file a motion for reconsideration of the order
dated July 26, 1995 admitting the answer with counter-protest, the
jurisdictional infirmity, brought about by the late filing of the answer to the
protest, persist and can not be cured by the omission on the part of the
protestee-petitioner to seek a reconsideration of the order dated July 26,
1995.28 (Citation omitted and emphasis ours)
Even if this Court is to disregard the procedural lapse committed by the
petitioners and rule on the issues raised, the instant petition would still be
denied.
The petitioners claim that they were denied due process when the
COMELEC granted the motion for technical examination filed by Matba and
Usman without giving them the opportunity to oppose the said motion.
This Court does not agree.
It bears stressing that the COMELEC, in election disputes, is not duty-bound
to notify and direct a party therein to file an opposition to a motion filed by the
other party. It is incumbent upon the party concerned, if he/she deems it
necessary, to file an opposition to a motion within five days from receipt of a
copy of the same without awaiting for the COMELEC’s directive to do so. On
this score, Section 3, Rule 9 of COMELEC Resolution No. 880429 clearly
provides that:
Sec. 3. No hearings on motions. – Motions shall not be set for hearing unless
the Commission directs otherwise. Oral argument in support thereof shall be
allowed only upon the discretion of the Commission. The adverse party may
file opposition five days from receipt of the motion, upon the expiration of
which such motion is deemed submitted for resolution. The Commission shall
resolve the motion within five days. (Emphasis ours)
If the party concerned, despite receipt of a copy of the motion that was filed
with the COMELEC, did not file an opposition to the said motion, the motion
 71
would be deemed submitted for resolution upon the expiration of the period xxxx
to file an opposition thereto.
While Section 1, Rule 18 of COMELEC Resolution No. 8804 does not
It should be stressed that one of the factors that should be considered in explicitly provide for the rule on the technical examination of election
election protests is expediency. Proceedings in election protests are special paraphernalia, it does not mean, however, that the COMELEC First Division
and expeditious and the early resolution of such cases should not be does not have the power to order the conduct of such technical examination.
hampered by any unnecessary observance of procedural rules.30 "The
proceedings should not be encumbered by delays. All of these are because
The absence of a rule which specifically mandates the technical examination
the term of elective office is likewise short. There is the personal stake of
of the said election paraphernalia does not mean that the COMELEC First
the contestants which generates feuds and discords. Above all is the public
Division is barred from issuing an order for the conduct thereof. The power of
interest. Title to public elective office must not be left long under cloud.
the COMELEC First Division to order the technical examination election
Efficiency of public administration should not be impaired. It is thus
paraphernalia in election protest cases stems from its "exclusive original
understandable that pitfalls which may retard the determination of election
jurisdiction over all contest relating to the elections, returns and qualifications
contests should be avoided."31
of all elective regional, provincial and city officials".33

Here, the petitioners did not file an opposition to the said motion for
Otherwise stated, the express grant of power to the COMELEC to resolve
technical examination that was filed by Matba and Usman on February 24,
election protests carries with it the grant of all other powers necessary,
2012. It was only after the COMELEC First Division issued its March 5,
proper, or incidental to the effective and efficient exercise of the power
2012 Order that the petitioners decided to register their opposition to the
expressly granted. Verily, the exclusive original jurisdiction conferred by the
intended technical examination, albeit in the form of a motion for
constitution to the COMELEC to settle said election protests includes the
reconsideration of the said Order. Contrary to the petitioners’ claim, Section
authority to order a technical examination of relevant election paraphernalia,
3, Rule 9 of COMELEC Resolution No. 8804 gave them the opportunity to
election returns and ballots in order to determine whether fraud and
raise their objections to the said motion for technical examination. However,
irregularities attended the canvass of the votes.
for reasons known only to them, petitioners did not file any opposition to the
said motion. Accordingly, it is the petitioners themselves and not the
COMELEC First Division who should be faulted for their predicament. There is no gainsaying that the COMELEC is mandated by law to resolve
election cases expeditiously and promptly. "For in this specie of
controversies involving the determination of the true will of the electorate,
Further, this Court cannot see how due process was denied to the
time indeed is of paramount importance second to none perhaps, except
petitioners in the issuance of the COMELEC First Division’s March 5, 2012
for the genuine will of the majority. To be sure, an election controversy which
Order. The petitioners were able to present their opposition to the said
by its very nature touches upon the ascertainment of the people’s choice, as
motion for technical examination in their manifestation and motion for
gleaned from the medium of the ballot, should be resolved with utmost
reconsideration which they filed with the COMELEC First Division on March
dispatch, precedence and regard to due process."34
9, 2012. Indeed, the petitioners’ objections to the technical examination of
the said election paraphernalia were exhaustively discussed by the
COMELEC First Division in its May 3, 2012 Resolution. Having filed a Concomitant to the COMELEC’s duty to expeditiously resolve election cases
motion for reconsideration of the COMELEC First Division’s March 5, 2012 is the authority to resort to every reasonable and efficient means available to
Order, the petitioners’ claim of denial of due process is clearly unfounded. it to settle the controversy. The COMELEC is thus enjoined, "not only to
maintain its sense of urgency in resolving these cases, but also to explore
every reasonable and feasible means of ascertaining which candidate was
The petitioners should be reminded that due process does not necessarily
duly elected."35 Thus, this Court has declared:
mean or require a hearing, but simply an opportunity or right to be heard.
One may be heard, not solely by verbal presentation but also, and perhaps
many times more creditably and predictable than oral argument, through An election contest, unlike an ordinary civil action, is clothed with a public
pleadings. In administrative proceedings moreover, technical rules of interest. The purpose of an election protest is to ascertain whether the
procedure and evidence are not strictly applied; administrative process candidate proclaimed by the board of canvassers is the lawful choice of the
cannot be fully equated with due process in its strict judicial sense. Indeed, people. What is sought is the correction of the canvass of votes, which was
deprivation of due process cannot be successfully invoked where a party the basis of proclamation of the winning candidate. An election contest
was given the chance to be heard on his motion for reconsideration. 32 therefore involves not only the adjudication of private and pecuniary interests
of rival candidates but paramount to their claims is the deep public concern
involved and the need of dispelling the uncertainty over the real choice of the
Anent the issue on the technical examination of election paraphernalia, the
electorate. And the court has the corresponding duty to ascertain by all
petitioners contend that the COMELEC First Division cannot order a
means within its command who is the real candidate elected by the
technical examination of the said election paraphernalia since there is as
people.36 (Emphasis ours)
yet no published rule therefor. They assert that Section 1, Rule 18 of
COMELEC Resolution No. 8804, the rule relied upon by the COMELEC
First Division in ordering a technical examination, is vague as it failed to Here, the technical examination ordered by the COMELEC First Division, by
provide the documents that should be subjected to technical examination in comparing the signature and the thumbmarks appearing on the EDCVL as
election protest cases. against those appearing on the VRRs and the Book of Voters, is a
reasonable, efficient and expeditious means of determining the truth or falsity
of the allegations of fraud and irregularities in the canvass of the votes in the
At the core of the petitioners’ assertion is the power of the COMELEC First
province of Tawi-Tawi. Accordingly, the COMELEC First Division did not
Division to order the technical examination of the said election
commit any abuse of discretion when it allowed the technical examination of
paraphernalia. This Court agrees with the petitioners that Section 1, Rule 18
the said election paraphernalia.
of COMELEC Resolution No. 8804 does not expressly authorize the
conduct of technical examination of election paraphernalia as it merely
provides for the procedure to be followed in the presentation and reception WHEREFORE, in consideration of the foregoing disquisitions, the petition is
of evidence in election protest cases. DENIED. The assailed Order dated May 3, 2012 issued by the First Division
of the Commission on Elections in EPC Nos. 2010-76 and 2010-77 is
AFFIRMED.
Section 1, Rule 18 of COMELEC Resolution No. 8804, in part, reads:

SO ORDERED.
Sec. 1. Presentation and reception of evidence; order of hearing. - The
reception of evidence on all matters or issues raised in the protest and
counter-protests shall be presented and offered in a hearing upon G.R. No. 118118 August 14, 1995
completion of (a) the recount of ballots, or re-tabulation of election
documents, or (b) the technical examination, if warranted.
ALFREDO GUIEB, petitioner,
vs.
 72
HON. LUIS M. FONTANILLA, in his capacity as the Presiding Judge of
the RTC, Branch 42, Dagupan City, and MANUEL
ASUNCION, respondents.
DAVIDE, JR., J.:
Revealed in this case is the parties' and the lower court judges' unfamiliarity
with or ignorance of the constitutional provision on the appellate jurisdiction
of the Commission on Elections (COMELEC) in election contests involving
elective barangay officials and of the decision of this Court declaring
unconstitutional a provision of law vesting upon Regional Trial Courts
appellate jurisdiction over the said cases.
We find it unnecessary to resolve the issue raised by the
petitioner, viz., whether or not a vote for a candidate for an office to which
he did not seek to be elected is valid. We shall, instead, deal with the
validity of the challenged decision.
The antecedents are uncomplicated and uncontroverted.
The petitioner and the private respondent were candidates for the position
of Punong Barangay of Barangay Nilombot, Sta. Barbara, Pangasinan, in
the barangay election of 9 May 1994. After the canvass of votes in the said
barangay, the former was proclaimed as the winning candidate. The latter
then seasonably filed an election protest with the Municipal Trial Court
(MTC) of Sta. Barbara, Pangasinan.
On 27 May 1994, the MTC, per Judge Lilia C. Español, rendered a decision
confirming the proclamation of the petitioner and dismissing the protest of
the private respondent.1
The private respondent appealed the decision to the Regional Trial Court
(RTC) of Dagupan City. The case was assigned to Branch 42 thereof.
In its decision2 of 31 August 1994, the RTC, per respondent Judge Luis M.
Fontanilla, reversed the decision of the MTC, annulled the proclamation of
the petitioner, and declared the private respondent as the winning
candidate with a plurality of four votes over the petitioner.
After the petitioner's motion for reconsideration3 of the decision was
denied 4 on 25 November 1994, the private respondent immediately filed a
motion for the issuance of a writ of execution.
In its order of 8 December 1994,5 the RTC declared that the motion should
be properly filed with the court of origin and that the decision of 31 August
1994 had already become final; it then ordered the remand of the records of
the case to the MTC of Sta. Barbara, Pangasinan, for proper disposition.
On 12 December 1994, the petitioner filed with this Court a motion for
extension of time to file a petition for review on certiorari. On 29 December
1994, he sent by registered mail his petition, which this Court received only
on 25 January 1995. It turned out, however, that his motion for extension of
time to file a petition had already been denied on 4 January 1995 for his
failure to submit an affidavit of service of that motion. On 8 February 1995,
he filed a motion for the reconsideration of the denial.
Meanwhile, on 20 December 1994, the private respondent filed with the
MTC a motion for the issuance of a writ of execution. 6
In its order of 19 January 1995, the MTC deferred action on the said motion
and required the petitioner's counsel to inform the court of the status of his
petition with this Court.7 For failure of the petitioner's counsel to comply with
the said order, the court issued an order on 7 February 19958 granting the
issuance of a writ of execution. On 13 February 1995, however, the court
received the said counsel's Compliance dated 9 February 19959 wherein he
informed the court of the petitioner's motion to reconsider this Court's
resolution denying the motion for extension of time to file his petition.
In the resolution of 8 February 1995, this Court required the respondent to
comment on the petition.
On 16 February 1995, the petitioner filed with the MTC an Urgent Motion to
Stay and/or Suspend Execution. 10 This motion was, however,
denied 11 on the ground that the writ, having been hand-carried by the private
respondent to the office of the sheriff, must have already been implemented
and, therefore, the motion to stay or suspend the same has become moot
and academic.
On 20 March 1995, the sheriff returned the writ of execution with the
information that in the presence of a barangay kagawad and barangay
residents, he enforced the writ and proclaimed the private respondent
as Punong Barangay of Barangay Nilombot, Sta. Barbara, Pangasinan. 12
In view of the issue involved, we resolved to give due course to the petition.
The RTC had absolutely no jurisdiction over the appeal interposed by the
private respondent from the decision of the MTC.
Under paragraph (2), Section 2, subdivision C, Article IX of the
Constitution, 13 it is the COMELEC, and not the Regional Trial Courts, that
has exclusive jurisdiction over all contests involving elective barangay
officials decided by courts of limited jurisdiction, which are the Metropolitan
Trial Courts, Municipal Trial Courts and Municipal Circuit Trial
Courts. 14 In Flores vs. Commission on Elections, 15 this Court struck out as
unconstitutional that portion of Section 9 of R.A. No. 6679 vesting upon the
Regional Trial Courts appellate jurisdiction over such cases.
The private respondent should have appealed the decision of the MTC to the
COMELEC; the MTC should not have given due course to the appeal; and
the RTC should have dismissed outright the appeal for want of jurisdiction.
In accepting the appeal and deciding the case on its merits, the respondent
judge manifested either ignorance or palpable disregard of the aforesaid
constitutional provision and decision. It must be noted that a judge is
presumed to know the constitutional limits of the authority or jurisdiction of his
court. He is called upon to exhibit more than just a cursory acquaintance with
the laws; it is imperative that he be conversant with basic legal
principles. 16 Canon 4 of the Canons of Judicial Ethics requires that a judge
should be "studious of the principles of the law." Thus, if the respondent
judge were only aware of the aforementioned constitutional provision and
decision, he would have cut short the journey of a very simple case and put
an end to the litigation. What this Court stated in Aducayen
vs.Flores 17 deserves reiteration:
Nor is this all that has to be said. There is need, it does seem, to caution
anew judges of inferior courts, which according to the Constitution refer to all
those outside this Tribunal, to exercise greater care in the discharge of their
judicial functions. They are called upon to exhibit more than just a cursory
acquaintance with statutes and procedural rules. Moreover, while it becomes
hourly difficult to keep abreast of our ever-increasing decisions, a modicum of
effort should be exerted by them not to lag too far behind. Nor is it too much
to expect that they betray awareness of well-settled and authoritative
doctrines. If such were the case, then resort to us would be less frequent.
That way our time could be devoted to questions of greater significance. Not
only that, there would be on the part of party litigants less expense and
greater faith in the administration of justice, if there be a belief on their part
that the occupants of the bench cannot justly be accused of an apparent
deficiency in their grasp of legal principles. Such an indictment unfortunately
cannot just be dismissed as a manifestation of chronic fault-finding. The
situation thus calls for a more conscientious and diligent approach to the
discharge of judicial functions to avoid the imputation that there is on the part
of a number of judges less than full and adequate comprehension of the law.
WHEREFORE, the instant petition is GRANTED. The challenged decision of
31 August 1994 of Branch 42 of the Regional Trial Court of Dagupan City and
its order of 25 November 1994 denying the petitioner's motion for
reconsideration are hereby SET ASIDE and ANNULLED for lack of
jurisdiction on the part of the said court to entertain and decide the appeal.
The decision of 27 May 1994 of the Municipal Trial Court of Sta. Barbara,
Pangasinan, is hereby declared final for failure of the private respondent to
appeal the same before the proper forum, and the writ of execution to enforce
 73
the decision of the Regional Trial Court is hereby SET ASIDE and
ANNULLED.
Costs against the private respondent.
SO ORDERED.
G.R. No. 123673 June 19, 1997
PEDRO C. CALUCAG, petitioner,
vs.
COMMISSION ON ELECTIONS, Manila; THE MUNICIPAL TRIAL COURT,
BRANCH 04, TUGUEGARAO, CAGAYAN and CESAR
CARBONEL, respondents.
ROMERO, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court
questioning the dismissal of petitioner's appeal before the Commission on
Elections (COMELEC) on the ground of prescription of time for filing an
appeal.
Petitioner Pedro Calucag and private respondent Cesar Carbonell were
both candidates for Barangay Captain in Barangay Caritan Centro,
Tuguegarao, Cagayan during the May 9, 1994 elections. Petitioner
garnered 478 votes while private respondent obtained 477 votes or a
difference of one vote.
Private respondent filed an election protest with the Municipal Trial Court,
Branch 4 of Tuguegarao, Cagayan praying for the judicial recount of the
ballots cast and the annulment of the proclamation of petitioner. As agreed
upon by the parties, a recount/revision of the votes/ballots was made. As a
result, private respondent obtained 491 votes as against petitioner's 489
votes. On May 31, 1994, the MTC promulgated a decision in open court
declaring the former as the duly elected Barangay Captain of Caritan
Centro, Tuguegarao.1 Petitioner appealed this ruling to the Regional Trial
Court of Tuguegarao, Cagayan, Branch 3 which appeal was opposed by
private respondent in a Motion to Dismiss on the ground of lack of
jurisdiction, the proper forum being the Commission on Elections
(COMELEC).2 On July 18, 1994, the RTC issued an Order dismissing the
appeal based on such ground.3 Petitioner filed a motion for reconsideration
of the order of dismissal which was also seasonably
denied.4
On appeal, the COMELEC likewise dismissed petitioner's case for lack of
appellate jurisdiction in its order dated August 12, 1994, which
provided, inter alia:
Guided by the pronouncement of the Supreme Court in the case of Flores
v. COMELEC (GR No. 89604, April 20, 1990), We have disregarded the
detour of the appeal to the Regional Trial Court and considered this appeal
direct to the Commission from the Municipal Trial Court of Tuguegarao,
Cagayan, however, unlike in Flores case, this appeal was not perfected as
it is wanting on the required payment of appeal fees on time, hence the
appellate jurisdiction of this Commission does not attach.
ACCORDINGLY, the Commission (First Division) hereby DISMISSES the
instant appeal for lack of appellate jurisdiction.5 (Emphasis supplied)
A motion for reconsideration of said order was filed, but this was also
denied by the Commission en banc which found the motion to be devoid of
merit, not because of non-payment of appeal fees on proper time but
because the same was filed out of time.6
Hence, this petition.
The main issue which must be addressed herein is whether the COMELEC
has exclusive appellate jurisdiction over election contests involving elective
barangay officials decided by trial courts of limited jurisdiction.
It is high time that this question be settled definitively to obviate situations
similar to the one at bar.
The court has categorically pronounced in Flores v. Commission on
Elections that Section 9 of R.A. No. 6679, insofar as it provides that the
decision of the Municipal or Metropolitan Trial Court in a barangay election
case should be appealed to the Regional Trial Court, is unconstitutional.
Said pronouncement is hereby reiterated here. The section is in direct
contravention of Article IX-C, Section 2(2) of the Constitution, providing that
the COMELEC shall:
(e)xercise exclusive original jurisdiction over all contests relating to the
elections, returns and qualifications of all elective regional, provincial, and
city officials, and appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction, or
involving elective barangay officialsdecided by trial courts of limited
jurisdiction.
Petitioner wishes this Court to entertain his case and rule as it did in Flores.
This, however, cannot be done anymore even if the facts of this case were on
all fours with Flores because in said case, the petitioner, Roque Flores, was
proclaimed Punong Barangay in accordance with Section 5 of R.A. No.
66797 after having received the highest number of votes for Kagawad in the
March 28, 1989, elections. The private respondent, Nobelito Rapisora, filed
an election protest with the MTC of Tayum, Abra which sustained his
arguments and installed him in place of Flores as Punong Barangay. The
latter appealed to the RTC of Abra, which affirmed in toto the challenged
decision. Thereafter, Flores went to the COMELEC which dismissed his
appeal on the ground that it has no power to review the decision of the RTC.
Said ruling was based on Section 9 of R.A. No. 66798 which states that
decisions of RTC's in electoral contests brought to it on appeal from the MTC
regarding questions of fact shall be final and unappealable. In resolving the
petition for certiorari, the Court supported the dismissal of the appeal, not on
the basis of said provision but on Constitutional grounds. Section 9 of R.A.
No. 6679 was declared unconstitutional even if it was not squarely and
properly challenged by Flores. Despite the non-compliance by Flores with the
requisites of a judicial inquiry into a constitutional question,9 the Court felt
that it was fruitless to wait for the issue to be raised anew, perhaps in the next
barangay elections, before being resolved. Technical obstacles were
disregarded so that the defect in R.A. No. 6679 may be brought to the
attention of Congress and the same be corrected.
At the time Flores was resolved, there was as yet no pronouncement on the
constitutionality of said Section 9 of R.A. No. 6679, such that the Court held
that Flores had a right to rely on its presumed validity. He merely relied on
said law when he appealed the decision of the MTC to the RTC. His
subsequent appeal to the COMELEC was, therefore, considered to have
been made directly from the MTC, thereby disregarding the detour to the
RTC.
It follows that after the promulgation of Flores, the same arguments
propounded therein by the petitioner may no longer be employed. Article 8 of
the Civil Code states that "(j)udicial decisions applying or interpreting the
laws or the constitution shall form part of the legal system of the Philippines."
Said pronouncement of the Court, having formed part of the law of the land,
ignorance thereof can no longer be countenanced. Therefore, the COMELEC
is the proper appellate court clothed with jurisdiction to hear the appeal,
which appeal must be filed within five days after promulgation of the MTC's
decision.10 The erroneous filing of the appeal with the RTC did not toll the
running of the prescriptive period. Petitioner filed his notice of appeal only on
August 12, 1994, or one month and twenty six days from the time he received
a copy of the MTC's decision on June 16, 1994. The five-day period, having
expired without the aggrieved party filing the appropriate appeal before the
COMELEC, the statutory privilege of petitioner to appeal is deemed waived
and the appealed decision has become final and executory.
Petitioner's contention that the COMELEC erred in disallowing the case
based on sheer technicalities is likewise unmeritorious. The COMELEC
dismissed petitioner's appeal for lack of appellate jurisdiction, based on his
failure to perfect his appeal on time. That this is NOT A TECHNICALITY is
 74
correctly pointed out in the questioned order citing various jurisprudence. In the challenged resolution at bench, the respondent COMELEC adhered to
Granting that petitioner paid the appeal fees on time, he chose the wrong the affirmative view of the issue, citing as authority therefore its own decision
forum; the payment, therefor, having been done after the lapse of the of 29 July 1993 in Dictado vs. Cosico and the last paragraph of Section 50 of
reglementary period to appeal. In support of his arguments petitioner cites B. P. Blg. 697, which reads:
the case of Roleto Pahilan v. Rudy Tabalba,11 wherein the Court proceeded
to rule on the election protest brought to it which was dismissed in the trial
Sec. 50. Definition. —
court due to incomplete payment of docket fees. The Court stated that the
trial court had "no basis for the dismissal of petitioner's protest for the
simple reason that an election contest is not an ordinary civil action. xxx xxx xxx
Consequently, the rules governing ordinary civil actions are not necessarily
binding on special actions like an election contest wherein public interest
The Commission is hereby vested with exclusive authority to hear and decide
will be adversely affected. . . . . The rules which apply to ordinary civil
petitions for certiorariprohibition, and mandamus involving election cases.
actions may not necessarily serve the purpose of election cases, especially
if we consider the fact that election laws are to be accorded utmost liberality
in their interpretation and application, bearing in mind always that the will of The petitioner herein pleads that this resolution be set aside and nullified for
the people must be upheld. Ordinary civil actions would generally involved having been issued with grave abuse of discretion amounting to lack or
private interests while all election cases are, at all times, invested with excess of jurisdiction. He contends that while the COMELEC's position is
public interest which cannot be defeated by mere procedural and technical inherently compelling, it deserves scant consideration in view of Garcia and
infirmities." The Court, however, in Rodillas v. COMELEC12 categorically Uy and Veloria and the nature and purpose of B. P. Blg. 697 which was to
made a pronouncement that "the requirement of an appeal fee is by no govern solely the Batasang Pambansa election of 14 May 1984; hence, it
means a mere technicality of law or procedure. It is an essential was a temporary statute which self-destructed after such election.
requirement without which the decision to be appealed from would become
final and executory as if no appeal was filed at all. The right to appeal is a
The antecedent facts that led to the filing of this action are uncomplicated and
mere statutory privilege and may be exercised only in the manner
undisputed.
prescribed by, and in accordance with, the provision of the law."

In the synchronized elections of 11 May 1992, the petitioner and private

WHEREFORE, in view of the foregoing, the Order of the Commission on
respondent Rosita Cumba were candidates for the position of Mayor in the
Elections en banc dated February 1, 1996, DISMISSING the instant case
municipality of Magallanes, Agusan del Norte. The latter was proclaimed the
for lack of appellate jurisdiction, is hereby AFFIRMED. Cost against
winning candidate, with a margin of only twenty-two votes over the former.
petitioner.

Unwilling to accept defeat, the petitioner filed an election protest with the
SO ORDERED.
Regional Trial Court (RTC) of Agusan del Norte, which was assigned to
Branch 2 thereof in Butuan City.
G.R. No. 118861 April 27, 1995
On 29 June 1994, the trial court, per Judge Rosario F. Dabalos, found the
EMMANUEL M. RELAMPAGOS, petitioner, petitioner to have won with a margin of six votes over the private respondent
vs. and rendered judgement in favor of the petitioner as follows:
ROSITA C. CUMBA and the COMMISSION ON
ELECTIONS, respondents.
WHEREFORE, in view of the foregoing results, the court hereby declares the
protestant as having won the mayoralty election and as duly elected Mayor of
the Municipality of Magallanes, Agusan del Norte in the local election held on
May 11, 1992, the protestant having obtained six (6) votes more than that of
the protestee's votes.
DAVIDE, JR., J.:

Copies of the decision were sent to and received by the petitioner and the
This special civil action of certiorari under Rule 65 of the Rules of Court
private respondent on 1 July 1994.
revives the issue of whether or not the Commission on Elections
(COMELEC) has jurisdiction over petitions for, certiorari, prohibition,
and mandamus in election cases where it has exclusive appellate On 4 July 1994, the private respondent appealed the decision to the
jurisdiction In the split decision of 4 March 1992 in the consolidated cases COMELEC by filing her notice of appeal and paying the appellate docket
of Garcia vs. De Jesus and Uy vs. Commission on Elections,1 this Court fees.
ruled in the negative because of the absence of any specific conferment
upon the COMELEC, either by the constitution or by legislative fiat, of
On 8 July 1994, the trial court gave due course to the appeal.
jurisdiction to issue such extraordinary writs. It held that jurisdiction or the
legal power to hear and determine a cause or causes of action, must exist
as a matter of law, whether the jurisdiction is original or appellate, and since On 12 July 1994, the petitioner filed with the trial court a motion for execution
these two classes of jursdiction are exclusive of each other, each must pending appeal, which the private respondent opposed on 22 July 1994.
expressly conferred by law. One does not flow, nor is inferred, from the
other. This Court proceeded to state that in the Philippine setting, the
On 3 August 1994, the trial court granted the petitioner's motion for execution
authority to issue the aforesaid writs involves the exercise of original
pending appeal. The corresponding writ of execution was forthwith issued.
jurisdiction which has always been expressly conferred either by
Thereafter, the private respondent filed a motion for a reconsideration of the
Constitution or by law. It is never derived by implication. Although the
order of execution and the sheriff held in abeyance the implementation of the
Constitution grants the COMELEC appellate jurisdiction, it does not grant it
writ. This motion was denied on 5 August 1994.
any power to exercise original jurisdiction over petitions for certiorari,
prohibition, and mandamus unlike the case of this Court which is
specifically conferred with such authority in Section 5(1) of Article VIII. It The private respondent then filed with the respondent COMELEC a petition
also pointed out that the doctrines laid down in Pimentel vs. COMELEC2 — for certiorari to annul the aforesaid other of the trial court granting the motion
that neither the Constitution nor any law has conferred jurisdiction on the for execution pending appeal and the writ of execution. The petition was
COMELEC to issue such writs — still finds application under the 1987 docketed as SPR No. 1-94.
Constitution.
On 9 February 1995, the COMELEC promulgated its resolution granting the
In the decision of 29 July 1992 in Veloria vs. Commission on petition.4 The dispositive portion thereof reads as follows:
Elections, 3 this Court reiterated the Garcia and Uy doctrine.
 75
WHEREFORE, premises considered, the Commission RESOLVES that is
[sic] has exclusive authority to hear and decide petitions for certiorari,
prohibition and mandamus in election cases as authorized by law, and
therefore, assumes jurisdiction of the instant petition for certiorari which is
hereby GRANTED. The Order of the court a quo of August 3, 1994 is
hereby declared NULL and VOID and the Writ of Execution issued on
August 4, 1994 LIFTED.
Accordingly, petitioner Rosita Cumba is ordered restored to her position .as
Municipality Mayor of Magallanes, Agusan del Norte, pending resolution of
the appeal before this Commission in the case of Relampagos vs. Cumba in
EAC No. 108-94.
In upholding its jurisdiction in certiorari, prohibition, and mandamus cases,
the respondent COMELEC maintains that there is a special law granting it
such jurisdiction, viz., Section 50 of B.P. Blg. 697, which remains in full
force as it was not expressly repealed by the Omnibus Election Code (B.P.
Blg. 881),and that it is not exactly correct that this law self-destructed after
the May 1984 election. It further reasoned out that in the performance of its
judicial functions, the COMELEC, is the most logical body to issue the
extraordinary writs of certiorari, prohibition and mandamus in election cases
where it has appellate jurisdiction. It ratiocinated as follows:
It is therefore clear that if there is a law which specifically confers jurisdiction
to issue the prerogative Writs, then the Commission has jurisdiction.
Such a law exists. Section 50, B.P. Blg. 697 is that law.
B.P. Blg. 697, approved on March 14, 1984, is entitled "AN ACT TO
GOVERN THE ELECTION OF MEMBERS OF THE BATASANG
PAMBANSA ON MAY 14, 1984 AND THE SELECTION OF SECTORAL
REPRESENTATIVES THEREAFTER, APPROPRIATING FUNDS
THEREFOR AND FOR OTHER PURPOSES. Section 50 provides:
Sec. 50. Definition.— 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, political party or coalition of political parties
before the board or directly with the Commission.
The Commission Elections shall be the sole judge and shall have exclusive
jurisdiction over all pre-proclamation controversies.
The Commission is hereby vested with exclusive authority to hear and
decide petitions for certiorari, prohibition and mandamus involving election
cases.(Emphasis supplied).
We have debated among ourselves whether Section 50, B.P. Blg. 697, has
been repealed. We have come to the conclusion that it has not been
repealed. The repealing provision in the Omnibus Election Code (BP Blg.
881, December 3, 1985), provides:
Sec. 282. Repealing Clause. — Presidential Decree No. 1296 otherwise
known as the The 1978 Election Code, as amended, is hereby repealed. All
other election Laws, decrees, executive orders, rules and regulations or
parts thereof, inconsistent with the provisions of this Code is hereby
repealed, except Presidential Decree No. 1618 and Batas Pambansa Blg.
20 governing the election of the members of the Sangguniang Pampook of
Regions IX and XII. (Emphasis supplied).
B.P. Blg. 697 has not been expressly repealed, and Section 50 thereof is
not inconsistent with the provisions of the Omnibus Election Code. Besides,
in the cited Garcia/Uy cases, as reiterated in the Veloria case, the Supreme
Court itself said, reiterating previous cases, that implied repeal of statutes is
frowned upon, thus:
Just as implied repeal of statutes frowned upon, so also should the grant of
original jurisdiction by mere implication to a quasi-judicial body be tabooed.
(Garcia/Uy/Veloria Cases: Emphasis supplied).
xxx xxx xxx
It is equally clear that Executive Order No. 90 . . . did not modify or repeal,
whether expressly or impliedly, Section 23 of P.D. No. 1752. It is common
place Learning that implied repeal are not favored in Law and are not
casually to be assumed. The first effort of a court must always be to reconcile
or adjust the provisions of one statute with those of another so as to give
sensible effect to both provisions (Jalandoni vs. Andaya, 55 SCRA 261
(1974); Villegas vs. Subido, 41 SCRA 190, 196-197 (1971); National Power
Corporation vs. ARCA, 25 SCRA 931 (1968); U.S. vs. Palacios, 33 Phil. 208
(1916); and Iloilo Palay and Corn Planters Association, Inc. vs. Feliciano, 13
SCRA 377·(1965). Only when there is clear inconsistency and conflict
between the provisions of two (2) statutes, may a court hold that the
provisions later in point of time have impliedly repealed the earlier ones" that
(Philippine American Management Co., Inc., vs. Philippine American
Management Employees Association, 49 SCRA 194 (1973); and Villegas vs.
Subido, 41 SCRA 190 (1971) (Larga vs. Ranada, Jr., No. L-7976, August 3,
1984, 164 SCRA 25).
It was even suggested that Batas Pambansa Blg. 697 self-destructed after
the Batasang Pambansa elections of 1984; because of the provisions of
Section 1 (Title and Applicability) which provides: "This act shall be known
and cited as "The Law on the 1984 Batasang Pambansa Election." It shall
govern the election for the regular Batasang Pambansa which shall be held
on May 14, 1984, and the selection of sectoral representatives thereafter as
provided by the Constitution.
While that may be true with most of its provisions which were applicable only
for the particular election (like election and campaign periods, voting
constituency, etc.) most if not all of the remaining provisions could be
applicable to future elections. It is not lost to the Commission that B.P. Blg.
697 was passed also "for other purposes."
But the important consideration is that the authority granted to the
Commission under B.P. Blg. 697 is not inconsistent with our election laws. It
should be mentioned that the provisions of Republic Act No. 6638 which
governed the local elections of January 18, 1988, as to the number of
councilors in specified cities (Sec. 3) and the number of Sangguniang
members in different provinces and cities (Sec. 4) are still applicable up to
this day. In fact, it became one of the important controlling provision which
governed the May 11, 1992 elections. If provisions of Republic Act No. 6636
which are not inconsistent with the present election laws did not self-destruct,
why should Section 50 of B.P. Blg. 697?
Another provision which did not self-destruct is that which provides that "any
city or municipal judge, who includes or excludes any voter without any legal
basis in inclusion and exclusion proceedings, shall be guilty of an election
offense," although this provision is found in Section 10 of Executive Order No.
134 supposedly with limited application as the enabling act for the elections
for Members of Congress on May 11, 1987 and for other purposes.
Clearly the intent of the law, was to give certiorari, jurisdiction to the
Commission on Elections because the Pimentel case said there was none, to
fill a void in the law, and avoid an incongruous situation.
A statute's clauses and phrases must not be taken separately but in its
relation to the statute's totality. Each statute must, in fact, be construed as to
"harmonized it with the pre-existing body of laws." Unless clearly repugnant,
provisions of statutes must be reconciled. . . . (Commissioner of Customs vs.
ESSO Standard Eastern, Inc. L-28329, August 7, 1975, 66 SCRA 113).
xxx xxx xxx
The statutory construction rule is: "When the Legislature enacts provision, it
is understood that it is aware of previous statutes relating to the same subject
matter and that in the absence of any express repeal or amendment therein,
the new provision should be deemed enacted pursuant to the legislative
policy embodied in the prior statutes." (Legaspi vs. Executive Secretary,
L-36153, November 28, 1975, 68 SCRA 253).
The Commission is the most logical body whenever it performs judicial
functions to take jurisdiction of petitions for certiorari, prohibition
and mandamus because it has appellate jurisdiction in election cases
granted by the Constitution itself. The Court of Appeals has no more
appellate jurisdiction over such cases And in the case of the Supreme Court,
 76
Justice de Castro in the Pimentel case pointed out, in his dissenting opinion
that under the Constitution the certiorari jurisdiction of the Supreme Court in
election cases should properly be limited to decisions, orders or rulings of
the Commission on Elections, not from lower courts.
It was of course different under the Election Code of 1971 (R.A. No. 6388,
September 2, 1971) because the Supreme Court and the Court of Appeals
then had appellate jurisdiction in election case decided by the lower courts.
In the Veloria case, it now appears that only the Supreme Court and the
Court of Appeals have certiorari jurisdiction over election cases from the
lower courts because after reiterating the ruling in the Garcia and Uy cases,
the Supreme Court said:
In view of this pronouncement, an original civil action of certiorari,
prohibition or mandamus against a regional trial court in an election contest
may be filed only in the Court of Appeals or in this Court being the only
courts given such original jurisdiction under the Constitution and the Law.
(Emphasis supplied).
While these two appellate Courts do have the jurisdiction under the
Constitution and the law, it is most logical for the Commission whenever it
performs judicial functions to have the authority to issue these prerogative
writs. . . .
...
In traversing the first issue, we are citing our decision laid down in the case
of Antonio Dictado vs. Hon. Rodrigo N. Cosico and Emilio Tiongco
promulgated on July 29, 1993. In this case, the Commission en banc had
occasion to rule on the question of whether or not the Commission has the
authority to hear and decide petitions for certiorari in election cases.
The Commission En Banc, speaking through Hon. Commissioner Regalado
E. Maambong, ruled that there is [a] law which grants the Commission, the
exclusive authority to issue special writs of certiorari, prohibition
and mandamus in election cases, and there are also Supreme Court
decisions, recent in fact, which declare that the Commission has no such
authority precisely because; according to the decisions, there is no law
granting such authority, and without any hint whatsoever of the existence of
Sec. 50 of Batas vs. Pambansa Blg. 697.
As gleaned from the case of Dictado, respondents were arguing that Sec.
50 of BP Blg. 697 was repealed by the Omnibus Election Code (BP Blg. 881,
December 3, 1985). Furthermore, in their answer, respondents cited
Supreme Court decisions where it was declared that, indeed, the
Commission has no jurisdiction to issue special writs of certiorari,
prohibition and mandamus in aid of its appellate jurisdiction.
It is still the position of this Commission that Sec. 50, BP Blg. 697 has not
been repealed.
As defined in the Constitution, "Judicial power" includes the duty of the
Courts of Justice to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there
has been a grave abuse of discretion amounting to lack or excess, of
jurisdiction on the part of any branch or instrumentality of the government
(Sec. 1, par. 2, Art. VII).
Since the COMELEC, in discharging its appellate jurisdiction pursuant to
Sec. 2 (2), Art. IX-C, acts as a court of justice performing judicial power and
said power includes the determination of whether or not there has been
grave abuse of discretion amounting to lack or excess of jurisdiction, it
necessarily follows that the Comelec, by constitutional mandate, is vested
with jurisdiction to issue writs of certiorariin aid of its appellate jurisdiction. 5
It set aside, for having been issued with grave abuse of discretion, the trial
court's order of execution pending appeal and the writ of execution because
[a]t the time the Motion for Execution Pending Appeal was filed on July 12,
1994 the court a quo had already lost jurisdiction over the case for as early
as July 8, 1994, it had already acknowledged through its order issued on that
date, the perfection of the appeal of petitioner as in fact it ordered the
elevation of the records of the case to this Honorable Commission. 6
Aggrieved by the resolution, the petitioner filed the instant special civil action.
In the resolution of 21 February 1985, the Court required the respondents to
comment on the petition and issued a temporary restraining order enjoining
the respondent COMELEC to cease and desist from enforcing is challenged
resolution.
As naturally expected, the private respondent, in her Comment, opposed the
petition by invoking the very arguments adduced by the respondent
COMELEC in its challenged the resolution and the dissenting opinion in
the Garcia and Uy cases.
In its comment filed by the Office of the Solicitor General, the respondent
COMELEC postulates that it issued the said resolution after it had taken
cognizance of the appeal interposed by the private respondent from the RTC
decision, unlike in the Garcia and Uy cases, and therefore, in the exercise of
its appellate jurisdiction, thus:
it cannot be gainsaid that [it] possesses inherent powers to employ means
necessary to carry into effect the powers conferred upon it by law (Sec. 6,
Rule 135 of the Revised Rules of Court) and verily, there was no need for any
statutory grant for that purpose. Indeed, in annulling the Order of Execution
of the Regional Trial Court, public respondent did not exceed its jurisdiction
since its action in this regard was necessary to preserve the subject of the
appeal and to maintain the status quo of the parties pending the final
outcome of its review of the correctness of the appealed decision. 7
It tried to show that in Pimentel and Garcia, the trial courts still had
jurisdiction over the cases unlike in the instant case where the trial court had
already given due course to the appeal and elevated the records of the case
to the COMELEC which had taken cognizance of the appeal.
This Court resolved to give due course to this petition and to decide it on its
merits.
The contention of the respondent COMELEC as advanced by the Office of
the Solicitor General is unacceptable. It goes against its theory in the
assailed resolution and is not supported by the facts. The challenged
resolution involves a case which the COMELEC docketed as a special
relief case (SPR. No. 1-94). Under Rule 28 of its Rules of Procedure, the
special relief cases are petitions for certiorari, prohibition, mandamus, and
contempt proceedings. The ordinary appeal from the RTC decision was, as
disclosed in the challenged resolution; docketed as EAC No. 108-94.8 Clearly
then, the COMELEC had recognized and taken cognizance of two cases:
one, the ordinary appeal from the RTC decision (EAC No. 108-94), and two,
the special civil action for certiorari docketed as SPR No. 1-94. The two
cases were not consolidated. The dissimilarities between them need no
further elaboration. Since it issued the challenged resolution under the latter
case, it cannot now be heard to state that it issued it as an incident in the
former, the ordinary appeal. This erroneous contention of the Office of the of
the Solicitor General notwithstanding, the position taken by the COMELEC in
its resolution now in question paves the way for a re-examination of this
Court's pronouncement in the Garcia and Uy cases.
As earlier stated, in Garcia and Uy, 9 and later, in Veloria, 10 this Court ruled
that the COMELEC has no jurisdiction over the extraordinary writs
of certiorari, prohibition, and mandamus because there is no specific
constitutional or statutory conferment to it of such jurisdiction.
The respondent COMELEC, however, points out that Section 50 of B.P. Blg.
697 expressly granted it such jurisdiction. Indeed, it did. Nevertheless,
considering that the said law was, per Section 1 thereof, "to govern the
election for the regular Batasang Pambansa which shall be held on May 14,
1984, and the selection of sectoral representatives thereafter as provided by
the Constitution," and in view of the passage of the Omnibus Election Code
(B.P. Blg. 881) by the regular Batasang Pambansa, 11 this Court is then
confronted with the twin issues of whether said B.P. Blg. 697 became functus
officio after the 14 May 1984 election of members of the regular Batasang
 77
Pambansa or the selection thereafter of the sectoral representatives at the
latest, and whether it was repealed by the Omnibus Election Code.
The Court agrees with the respondent COMELEC that there are provisions
in B.P. Blg. 697 whose lifetime go beyond the 14 May 1984 election or the
subsequent selection of sectoral representatives. In fact, by the very
wording of the last paragraph of its Section 50, to: wit:
statute to be repealed indicates that the intent was not to repeal any existing
law on the matter, unless an irreconcilable inconsistency and repugnancy
exist in the terms of the new and the old laws.15
This being the case, the Court painstakingly examined the aforesaid last
paragraph of Section 50 of the Omnibus Election Code to determine if the
former is inconsistent with any of the provisions of the latter, It found none.

Sec. 50. Definition. — In the face of the foregoing disquisitions, the Court must, as it now does,
abandon the ruling in the Garcia and Uyand Veloria cases, We now hold that
the last paragraph of Section 50 of B.P. Blg. 697 providing as follows:
xxx xxx xxx

The Commission is hereby vested with exclusive authority to hear and decide
The Commission is hereby vested with the exclusive authority to hear and
petitions for certiorari, prohibition and mandamus involving election cases.
decide petitions for certiorari, prohibition and mandamus involving election
cases. (Emphasis supplied).
remains in full force and effect but only in such cases where, under
paragraph (2), Section 1, Article IX-C of the Constitution, it has exclusive
it is quite clear that the exercise of the power was not restricted within a
appellate jurisdiction. Simply put, the COMELEC has the authority to issue
specific period of time. Taken in the context of the conspicuous absence of
the extraordinary writs of certiorari, prohibition, and mandamus only in aid of
such jurisdiction as ruled in Pimentel vs. Commission on Elections, 12 it
its appellate jurisdiction.
seems quite obvious that the grant was intended as a remedial legislation to
eliminate the seeming incongruity or irrationality resulting in a splitting of
jurisdiction pointed out in the dissenting opinion of Justice De Castro in the The jurisdiction of the COMELEC having been settled, we now proceed to
said case. review the substance of the challenged resolution.

But did not the Omnibus Election Code (B.P. Blg. 881) repeal B.P. Blg. 697?
The repealing clause of the latter reads as follows:
Sec. 282. Repealing clause. — Presidential decree No. 1296, otherwise
known as The 1978 Election Code, as amended, is hereby repealed. All
other election laws, decrees, executive orders, rules and regulations, or
parts thereof, inconsistent with the provisions of this Code are hereby
repealed, except Presidential Decree No. 1618 .and Batas Pambansa Blg.
20 governing the election of the members of the Sangguniang Pampook of
Regions IX and XII.
The second sentence is in the nature of a general repealing clause. It has
been said:
An express general repealing clause to the effect that. all inconsistent
enactments are repealed; is in legal contemplation a nullity. Repeals must
either be expressed or result by implication. Although it has in some
instances been held to be an express recognition that there are acts in
conflict with the act in which it is included and as indicative of the legislative
intent to repeal such acts, a general repealing clause cannot be deemed an
express repeal because it fails to identify or designate any act to be
repealed. It cannot be determinative of an implied repeal for if does not
declare any inconsistency but conversely, merely predicates a repeal upon
the condition that a substantial conflict is found under application of the
rules of implied repeals. If its inclusion is more than mere mechahical
verbiage, it is more often a detriment than an aid to the establishment of a
repeal, for such clause is construed as an express limitation of the repeal to
inconsistent acts.13
That the trial court acted with palpable and whimsical abuse of discretion in
granting the petitioner's motion for execution pending appeal and in issuing
the writ of execution is all too obvious. Since both the petitioner and the
private respondent received copies of the decision on 1 July 1994, an appeal
therefrom may be filed within five days 16 from 1 July 1994, or on or before 6
July 1994. Any motion for execution pending appeal must be filed before the
period for the perfection of the appeal. Pursuant to Section 23 of the Interim
Rules Implementing B.P. Blg. 129, which is deemed to have supplementary
effect to the COMELEC Rules of Procedures pursuant to Rule 43 of the latter,
an appeal would be deemed perfected on the last day for any of the parties to
appeal,17 or on 6 July 1994. On 4 July 1994, the private respondent filed her
notice of appeal and paid the appeal fee. On 8 July 1994, the trial court gave
due course to the appeal and ordered the elevation of the records of the case
to the COMELEC. Upon the perfection of the appeal, the trial court was
divested of its jurisdiction over the case. 18 Since the motion for execution
pending appeal was filed only on 12 July 1994, or after the perfection of the
appeal, the trial court could no longer validly act thereon. It could have been
otherwise if the motion was filed before the perfection of the
appeal. 19 Accordingly, since the respondent COMELEC has the jurisdiction
to issue the extraordinary writs of certiorari, prohibition, and mandamus, then
it correctly set aside the challenged order granting the motion for execution
pending appeal and writ of execution issued by the trial court.
WHEREFORE, the instant petition is DENIED and the challenged resolution
of 9 February 1995 of the Commission on Elections in SPR No. 1-94 entitled
"Rosita Cumba vs. Manuel M. Relampagos, et al. " is AFFIRMED.
The temporary restraining order issued on 21 February 1995 is hereby
LIFTED.

This Court is not unaware of the equally settled rule in statutory construction
No pronouncemnt as to costs.
that in the revision or codification of laws, all parts and provisions of the old
laws that are omitted in the revised statute or code are deemed repealed,
unless the statute or code provides otherwise expressly or impliedly. 14 SO ORDERED.

By the tenor of its aforequoted Repealing Clause, it does not evidently G.R. No. 142907 November 29, 2000
appear that the Batasang Pambansa had intended to codify all prior election
statutes and to replace them with the new Code. It made, in fact, by the
JOSE EMMANUEL L. CARLOS, petitioner,
second sentence, a reservation that all prior election statutes or parts
vs.
thereof not inconsistent with any provisions of the Code shall remain in
HON. ADORACION G. ANGELES, IN HER CAPACITY AS THE ACTING
force. That sentence
PRESIDING JUDGE OF THE REGIONAL TRIAL COURT IN CALOOCAN
CITY (BRANCH 125) and ANTONIO M. SERAPIO, respondents.
predicates the intended repeal upon the condition that a substantial conflict
must be found on existing and prior acts of the same subject matter. Such
PARDO, J.:
being the case, the presumption against implied repeals and the rule on
strict construction regarding implied repeals apply ex proprio vigore. For the
legislature is presumed to know the existing laws so that, if repeal of The Case
particular or specific law or laws is intended, the proper step is to express it.
The failure to add a specific repealing clause particularly mentioning the
 78
The case before the Court is an original special civil action for certiorari and The revision of the ballots showed the following results:
prohibition with preliminary injunction or temporary restraining order
seeking to annul the decision of the Regional Trial Court, Caloocan City,
(1) Per physical count of the ballots:
Branch 125, the dispositive portion of which reads as follows:

(a) protestant Serapio - 76,246 votes.

"WHEREFORE, premises considered, the proclamation of the Protestee,
Jose Emmanuel Carlos, by the Board of Canvassers is accordingly SET
ASIDE. (b) protestee Carlos - 103,551 votes.

"The Court hereby FINDS the Protestant, ANTONIO SERAPIO, as the (2) Per revision, the court invalidated 9,697 votes of the protestant but
DULY ELECTED MAYOR OF VALENZUELA CITY. validated 53 stray votes in his favor.

"SO ORDERED."1 The court invalidated 19,975 votes of the protestee and validated 33 stray
votes in his favor.
The Facts
The final tally showed:
Petitioner Jose Emmanuel L. Carlos and respondent Antonio M. Serapio
were candidates for the position of mayor of the municipality of Valenzuela, (a) protestant Serapio - 66,602 votes.
Metro Manila (later converted into a City) during the May 11, 1998 elections.
(b) protestee Carlos - 83,609 votes, giving the latter a winning margin of
On May 21, 1998, the Municipal Board of Canvassers, Valenzuela, Metro 17,007 votes.
Manila proclaimed petitioner as the duly elected mayor of Valenzuela
having obtained 102,688 votes, the highest number of votes in the election
The Trial Court's Ruling
returns.

Nevertheless, in its decision, the trial court set aside the final tally of valid
On June 1, 1998, respondent Antonio M. Serapio who obtained 77,270
votes because of its finding of "significant badges of fraud," namely:
votes, the second highest number of votes, filed with the Regional Trial
Court, Valenzuela, Metro Manila, an election protest challenging the results.
Due to the inhibition of all judges of the Regional Trial Court in Valenzuela, 1. The keys turned over by the City Treasurer to the court did not fit into the
the case was ultimately assigned to the Regional Trial Court, Caloocan City, padlocks of the ballot boxes that had to be forcibly opened;
Branch 125, presided over by respondent Judge Adoracion G. Angeles.
2. Seven (7) ballot boxes did not contain any ballot and two (2) ballot boxes
On June 26, 1998, petitioner filed with the trial court an answer with out of the seven (7) ballot boxes did not contain any election returns;
affirmative defenses and motion to dismiss. The court denied the motion to
dismiss by order dated January 14, 1999. Petitioner elevated the order to
3. Some schools where various precincts were located experienced
the Commission on Elections (Comelec) on petition for certiorari and
brownouts during the counting of votes causing delay in the counting
prohibition,2 which, however, has remained unresolved up to this moment.
although there was no undue commotion or violence that occurred;

In the course of the protest, the municipal treasurer of Valenzuela, who by

law has custody of the ballot boxes, collected the ballot boxes and delivered
them to the Regional Trial Court, Caloocan City. The trial court conducted a
pre-trial conference of the parties but it did not produce a substantial result
as the parties merely paid superficial service and only agreed on the
following:
1. Both parties admit their capacity to sue and be sued;
4. Some of the assigned watchers of protestant were not in their posts during
the counting of votes.
On the basis of the foregoing badges of fraud, the trial court declared that
there was enough pattern of fraud in the conduct of the election for mayor in
Valenzuela. The court held that the fraud was attributable to the protestee
who had control over the election paraphernalia and the basic services in the
community such as the supply of electricity.

2. Both parties admit that the protestant was a candidate during the May 11,
On April 24, 2000, the trial court rendered a judgment ruling that the
1998 election;
perpetuation of fraud had undoubtedly suppressed the true will of the
electorate of Valenzuela and substituted it with the will of the protestee.
3. Both parties admit that the protestee has been proclaimed as the elected Notwithstanding the plurality of valid votes in favor of the protestee, the trial
mayor of Valenzuela, Metro Manila, on May 21, 1998; court set aside the proclamation of protestee Jose Emmanuel Carlos by the
Municipal Board of Canvassers and declared protestant Antonio M. Serapio
as the duly elected mayor of Valenzuela City.6
4. Both parties admit that the protestee allegedly obtained 102,688 votes
while the protestant obtained 77,270 votes per canvass of election returns
of the Board of Canvassers. Hearing news that the protestant had won the election protest, the protestee
secured a copy of the decision from the trial court on May 4, 2000. On the
other hand, notice of the decision was received by the protestant on May 03,
The pre-trial was then concluded and the parties agreed to the creation of
2000.
seven (7) revision committees consisting of a chairman designated by the
court and two members representing the protestant and the protestee.
On May 4, 2000, protestant filed with the trial court a motion for execution
pending appeal.7 On May 4, 2000, the trial court gave protestee five (5) days
Meantime, on May 12, 1999, petitioner filed a consolidated motion that
within which to submit his comment or opposition to the motion.8
included a prayer for authority to photocopy all the official copies of the
revision reports in the custody of the trial court. However, the trial court
denied the issuance of such authorization.3 The court likewise denied a Petitioner's Appeal to Comelec
motion for reconsideration of the denial.4 Then petitioner raised the denial
to the COMELEC on petition for certiorari and mandamus,5 which also
Meantime, on May 04, 2000, petitioner filed a notice of appeal from the
remains unresolved until this date.
decision of the trial court to the Commission on Elections.9

The Revision Results

 79
The Petition at bar
On May 8, 2000, petitioner filed the present recourse.10
Petitioner raised the following legal basis:
(1) The Supreme Court has original jurisdiction to entertain special civil
actions of certiorari and prohibition;
(2) There are important reasons and compelling circumstances which justify
petitioner's direct recourse to the Supreme Court;
(3) Respondent judge committed grave abuse of discretion when she
declared respondent Serapio as the duly elected mayor of Valenzuela
despite the fact that she found that petitioner obtained 17,007 valid votes
higher than the valid votes of respondent Serapio;
(4) The assailed decision is contrary to law, based on speculations and not
supported by the evidence as shown in the decision itself.11
The Issues
The issues raised are the following:
1. Whether the Supreme Court has jurisdiction to review, by petition for
certiorari as a special civil action, the decision of the regional trial court in an
election protest case involving an elective municipal official considering that
it has no appellate jurisdiction over such decision.
2. Whether the trial court acted without jurisdiction or with grave abuse of
discretion when the court set aside the proclamation of petitioner and
declared respondent Serapio as the duly elected mayor of Valenzuela City
despite its finding that petitioner garnered 83,609 valid votes while
respondent obtained 66,602 valid votes, or a winning margin of 17,007
votes.
TRO Issued
On May 8, 2000, we issued a temporary restraining order ordering
respondent court to cease and desist from further taking cognizance of
Election Protest No. 14-V-98 more specifically from taking cognizance of
and acting on the Motion for Execution Pending Appeal filed by respondent
Serapio on May 4, 2000.12
Respondent's Position
On May 15, 2000, respondent Serapio filed his comment with omnibus
motion to lift the temporary restraining order and to declare petitioner in
contempt of court for violating the rule against forum shopping.13 He
submitted that Comelec and not the Supreme Court has jurisdiction over the
present petition for certiorari assailing the decision dated April 24, 2000 of
the regional trial court. Assuming that this Court and Comelec have
concurrent jurisdiction and applying the doctrine of primary jurisdiction, the
Comelec has jurisdiction since petitioner has perfected his appeal therewith
before the filing of the instant petition. Certiorari cannot be a substitute for
an appeal; the present petition is violative of Revised Circular No. 28-91 on
forum-shopping; issues raised are factual, not correctible by certiorari; and
that the temporary restraining order should be lifted, the petition dismissed,
and petitioner and counsel should be made to explain why they should not
be punished for contempt of court.
The Court's Ruling
We find the petition impressed with merit.14
I. The Supreme Court is vested with original jurisdiction to issue writs of
certiorari, prohibition and mandamus against the decision of the regional
trial court in the election protest case before it, regardless of whether it has
appellate jurisdiction over such decision.
Article VIII, Section 5 (1) of the 1987 Constitution provides that:
"Sec. 5. The Supreme Court shall have the following powers:
"(1) Exercise original jurisdiction over cases affecting ambassadors, other
public ministers and consuls, and over petitions for certiorari, prohibition,
mandamus, quo warranto, and habeas corpus."
xxx xxx xxx
Rule 65, Section 1 of the 1997 Rules of Civil Procedure, as amended,
provides that:
"SECTION 1. Petition for certiorari.—When any tribunal, board or officer
exercising judicial or quasi-judicial functions has acted without or in excess of
its or his jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or modifying the proceedings of
such tribunal, board or officer, and granting such incidental reliefs as law and
justice may require.
The petition shall be accompanied by a certified true copy of the judgment,
order or resolution subject thereof, copies of all pleadings and documents
relevant and pertinent thereto, and a sworn certification of non-forum
shopping as provided in the third paragraph of section 3, Rule 46."
By Constitutional fiat, the Commission on Election (Comelec) has appellate
jurisdiction over election protest cases involving elective municipal officials
decided by courts of general jurisdiction, as provided for in Article IX (C),
Section 2 of the 1987 Constitution:
"Sec. 2. The Commission on Elections shall exercise the following powers
and functions:
"(1) x x x.
"(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns and qualifications of all elective regional, provincial, and
city officials, and appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction."
In like manner, the Comelec has original jurisdiction to issue writs of certiorari,
prohibition and mandamus involving election cases in aid of its appellate
jurisdiction.15 This point has been settled in the case of Relampagos vs.
Cumba,16 where we held:
"In the face of the foregoing disquisitions, the court must, as it now does,
abandon the ruling in the Garcia and Uy and Veloria cases. We now hold
that the last paragraph of Section 50 of B. P. Blg. 697 providing as follows:
The Commission is vested with exclusive authority to hear and decide
petitions for certiorari, prohibition and mandamus involving election cases.
remains in full force and effect but only in such cases where, under
paragraph (2), Section 1, Article IX-C of the Constitution, it has exclusive
appellate jurisdiction. Simply put, the COMELEC has the authority to issue
the extraordinary writs of certiorari, prohibition, and mandamus only in aid of
its appellate jurisdiction." (Emphasis ours).
Consequently, both the Supreme Court and Comelec have concurrent
jurisdiction to issue writs of certiorari, prohibition, and mandamus over
decisions of trial courts of general jurisdiction (regional trial courts) in election
cases involving elective municipal officials. The Court that takes
jurisdiction first shall exercise exclusive jurisdiction over the case.17
 80
Ergo, this Court has jurisdiction over the present petition of certiorari as a
special civil action expressly conferred on it and provided for in the
Constitution.
Relative to the appeal that petitioner filed with the COMELEC, the same
would not bar the present action as an exception to the rule because under
the circumstances, appeal would not be a speedy and adequate remedy in
the ordinary course of law.18 The exception is sparingly allowed in
situations where the abuse of discretion is not only grave and whimsical but
also palpable and patent, and the invalidity of the assailed act is shown on
its face.
II. Certiorari lies. The trial court acted with grave abuse of discretion
amounting to lack or excess of jurisdiction. Its decision is void.
The next question that arises is whether certiorari lies because the trial
court committed a grave abuse of discretion amounting to lack or excess of
jurisdiction in deciding the way it did Election Protest Case No. 14-V-98,
declaring respondent Serapio as the duly "elected" mayor of Valenzuela,
Metro Manila.
In this jurisdiction, an election means "the choice or selection of candidates
to public office by popular vote"19through the use of the ballot, and the
elected officials of which are determined through the will of the
electorate.20"An election is the embodiment of the popular will, the
expression of the sovereign power of the people."21"Specifically, the term
'election', in the context of the Constitution, may refer to the conduct of the
polls, including the listing of voters, the holding of the electoral campaign,
and the casting and counting of votes."22 The winner is the candidate who
has obtained a majority or plurality of valid votes cast in the election.23
"Sound policy dictates that public elective offices are filled by those who
receive the highest number of votes cast in the election for that office. For,
in all republican forms of government the basic idea is that no one can be
declared elected and no measure can be declared carried unless he or it
receives a majority or plurality of the legal votes cast in the election."24 In
case of protest, a revision or recount of the ballots cast for the candidates
decides the election protest case. The candidate receiving the highest
number or plurality of votes shall be proclaimed the winner. Even if the
candidate receiving the majority votes is ineligible or disqualified, the
candidate receiving the next highest number of votes or the second placer,
can not be declared elected.25 "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 has
obtained a plurality of votes and does not entitle a candidate receiving the
next highest number of votes to be declared elected."26 In other words, "a
defeated candidate cannot be deemed elected to the office."27
"Election contests involve public interest, and technicalities and procedural
barriers should not be allowed to stand if they constitute an obstacle to the
determination of the true will of the electorate in the choice of their elective
officials. Laws governing election contests must be liberally construed to the
end that the will of the people in the choice of public officials may not be
defeated by mere technical objections. In an election case, the court has an
imperative duty to ascertain by all means within its command who is the real
candidate elected by the electorate. The Supreme Court frowns upon any
interpretation of the law or the rules that would hinder in any way not only
the free and intelligent casting of the votes in an election but also the correct
ascertainment of the results."28
In this case, based on the revision of ballots, the trial court found that:
First, by canvass of the Municipal Board of Canvassers the results were:
Carlos - 102,668 votes
Serapio - 77,270 votes, or a winning margin of 25,418 votes
Ramon Ignacio - 20 votes.
and consequently, the Board of Canvassers proclaimed petitioner Carlos
the duly elected mayor of Valenzuela, Metro Manila.
Second, by physical count of the ballots, the results were:
Carlos - 103,551 votes
Serapio - 76,246 votes, or a winning margin of 27,305 votes.
Third, by revision of the ballots, the trial court found in a final tally that the
"valid" votes obtained by the candidates were as follows:
Carlos - 83,609 votes
Serapio - 66,602 votes, or a winning margin of 17,007 votes.
Consequently, the final tally clearly showed petitioner Carlos as the
overwhelming winner in the May 11, 1998 elections.
However, the trial court set aside the final tally of votes because of what the
trial court perceived to be "significant badges of fraud" attributable to the
protestee.29 These are:
First: The failure of the keys turned over by the City Treasurer to the trial
court to fit the padlocks on the ballot boxes that compelled the court to
forcibly open the padlocks. The trial court concluded that the real keys were
lost or the padlocks substituted pointing to possible tampering of the contents
of the ballot boxes.
Procedurally, the keys to the ballot boxes were turned over by the Board of
Election Inspectors from the precinct level to the Municipal Board of
Canvassers and finally to the municipal treasurer for safekeeping. The
three-level turn-over of the keys will not prevent the possibility of these keys
being mixed up. This is an ordinary occurrence during elections. The mere
inability of the keys to fit into the padlocks attached to the ballot boxes does
not affect the integrity of the ballots. At any rate, the trial court easily forced
open the padlocks and found valid votes cast therein;
Second: Seven (7) ballot boxes were found empty. Thus, the trial court
concluded that there were "missing ballots" and "missing election returns."
This is pure speculation without factual basis. "The sea of suspicion has no
shore, and the court that embarks upon it is without rudder or compass."30
On the other hand, the Summary of Votes as revised does not show any
unaccounted precinct or whether there was any precinct without any ballot or
election returns. It is a standard procedure of the Commission on Elections
(Comelec) to provide extra empty ballot boxes for the use of the Board of
Election Inspectors or the Board of Canvassers, in case of necessity.
The empty ballot boxes found could be the empty reserve ballot boxes that
were not used by the Board of Election Inspectors or the Board of
Canvassers since there was neither proof nor even a claim of missing ballots
or missing election returns.
Third: Some schoolhouses experienced brownout during the counting of
votes. There was nothing extraordinary that would invite serious doubts or
suspicion that fraud was committed during the brownout that occurred.
Indeed, one witness stated that it was the first time that he observed
brownout in Dalandanan Elementary School and another stated that the
brownout was localized in Coloong Elementary School. Since counting of
votes lasted until midnight, the brownouts had caused only slight delay in the
canvassing of votes because the election officials availed themselves of
candles, flashlights and emergency lights. There were no reports of cheating
or tampering of the election returns. In fact, witnesses testified that the
counting of votes proceeded smoothly and no commotion or violence
occurred. So, the brownouts had no effect on the integrity of the canvass.
Fourth: The absence of watchers for candidate Serapio from their posts
during the counting of votes. This cannot be taken against candidate Carlos
since it is the candidate's own look-out to protect his interest during the
counting of votes and canvassing of election returns. As long as notices were
duly served to the parties, the counting and canvassing of votes may validly
proceed in the absence of watchers. Otherwise, candidates may easily delay
the counting of votes or canvassing of returns by simply not sending their
watchers. There was no incomplete canvass of returns, contrary to what the
 81
trial court declared. The evidence showed complete canvass in Valenzuela,
Metro Manila.31
"We cannot allow an election protest on such flimsy averments to prosper,
otherwise, the whole election process will deteriorate into an endless
stream of crabs pulling at each other, racing to disembank from the
water."32
Assuming for the nonce that the trial court was correct in holding that the
final tally of valid votes as per revision report may be set aside because of
the "significant badges of fraud", the same would be tantamount to a ruling
that there were no valid votes cast at all for the candidates, and, thus, no
winner could be declared in the election protest case. In short, there was
failure of election.
In such case, the proper remedy is an action before the Commission on
Elections en banc to declare a failure of election or to annul the election.33
However, the case below was an election protest case involving an elective
municipal position which, under Section 251 of the Election Code, falls
within the exclusive original jurisdiction of the appropriate regional trial
court.34
Nonetheless, the annulment of an election on the ground of fraud,
irregularities and violations of election laws may be raised as an incident to
an election contest. Such grounds for annulment of an election may be
invoked in an election protest case. However, an election must not be
nullified and the voters disenfranchised whenever it is possible to determine
a winner on the basis of valid votes cast, and discard the illegally cast
ballots. In this case, the petitioner admittedly received 17,007 valid votes
more than the protestee, and therefore the nullification of the election would
not lie. The power to nullify an election must be exercised with the greatest
care with a view not to disenfranchise the voters, and only under
circumstances that clearly call for such drastic remedial measure. 35
As heretofore stated, in this jurisdiction, elections are won on the basis of a
majority or plurality of votes cast and received by the candidates. "The right
to hold an elective office is rooted on electoral mandate, not perceived
entitlement to the office."36
More importantly, the trial court has no jurisdiction to declare a failure of
election.37
Section 6 of the Omnibus Election Code provides that:
"Sec. 6. Failure of Election.—If, on account of force majeure, violence,
terrorism, fraud or other analogous causes the election in any polling place
has not been held on the date fixed, or had been suspended before the
hour fixed by law for the closing of the voting, or after the voting and during
the preparation and the transmission of the election returns or in the
custody of canvass thereof, such election results in a failure to elect, and in
any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified
petition by any interested party and after due notice and hearing, call for the
holding or continuation of the election not held, suspended or which
resulted in a failure to elect on a date reasonably close to the date of the
election not held, suspended or which resulted in a failure to elect but not
later than thirty (30) days after the cessation of the cause of such
postponement or suspension of the election or failure to elect." (Emphasis
supplied)
Likewise, RA 7166 provides that:
"Sec. 4. Postponement, Failure of Election and Special Elections".-- The
postponement, declaration of failure of election and the calling of special
elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code
shall be decided by the Commission sitting en banc by a majority vote of its
members. The causes for the declaration of a failure of election may occur
before or after the casting of votes or on the day of the election." (Emphasis
supplied)
It is the Commission (Comelec) sitting en banc that is vested with exclusive
jurisdiction to declare a failure of election.38
"In a petition to annul an election under Section 6, Batas Pambansa Blg. 881,
two conditions must be averred in order to support a sufficient cause of action.
These are: (1) the illegality must affect more than 50% of the votes cast and
(2) the good votes can be distinguished from the bad ones. It is only when
these two conditions are established that the annulment of the election can
be justified because the remaining votes do not constitute a valid
constituency."39
We have held that: "To declare a failure of election, two (2) conditions must
occur: first, no voting has taken place in the precincts concerned on the date
fixed by law or, even if there were voting, the election nevertheless resulted
in a failure to elect; and, second, the votes not cast would affect the result of
the election."40 Neither of these conditions was present in the case at bar.
More recently, we clarified that, "Under the pertinent codal provision of the
Omnibus Election Code, there are only three (3) instances where a failure of
elections 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; or (c) after the voting and during the preparation and
transmission of the election returns or in the custody or canvass thereof,
such election results in a failure to elect on account of force majeure,
violence, terrorism, fraud, or other analogous causes."41
Thus, the trial court in its decision actually pronounced a failure of election by
disregarding and setting aside the results of the election. Nonetheless, as
herein-above stated, the trial court erred to the extent of ousting itself of
jurisdiction because the grounds for failure of election were not significant
and even non-existent. More importantly, the commission of fraud can not be
attributed to the protestee. There was no evidence on record that protestee
had a hand in any of the irregularities that protestant averred. It is wrong for
the trial court to state that the protestee had control over the "election
paraphernalia" or over electric services. The Commission on Elections has
control over election paraphernalia, through its officials and deputies.42 The
Comelec can deputize with the concurrence of the President, law
enforcement agencies and instrumentalities of the government, including the
Armed Forces of the Philippines, for the exclusive purpose of ensuring free,
orderly, honest, peaceful, and credible elections.43 On the other hand,
electric utility services in Metro Manila, including Valenzuela are under the
control of its franchise holder, particularly the Manila Electric Company, a
public service company, certainly not owned or controlled by the protestee. In
fact, during election period, Comelec has control over such utilities as electric
and even telephone service.44 What is important, however, is that the voters
of Valenzuela were able to cast their votes freely and fairly. And in the
election protest case, the trial court was able to recount and determine the
valid votes cast.
Assuming that the trial court has jurisdiction to declare a failure of election,
the extent of that power is limited to the annulment of the election and the
calling of special elections.45 The result is a failure of election for that
particular office. In such case, the court can not declare a winner.46 A
permanent vacancy is thus created. In such eventuality, the duly elected
vice-mayor shall succeed as provided by law.47
We find that the trial court committed a grave abuse of discretion amounting
to lack or excess of jurisdiction in rendering its decision proclaiming
respondent Serapio the duly elected mayor of Valenzuela, Metro Manila, on
the basis of its perception of the voice of the people of Valenzuela, even
without a majority or plurality votes cast in his favor. In fact, without a single
vote in his favor as the trial court discarded all the votes. Thus, the decision is
not supported by the highest number of valid votes cast in his favor. This
violated the right to due process of law of petitioner who was not heard on the
issue of failure of election, an issue that was not raised by the protestant. "A
decision is void for lack of due process if, as a result, a party is deprived of
the opportunity of being heard."48 The trial court can not decide the election
protest case outside the issues raised. If it does, as in this case, the trial court
is ousted of its jurisdiction. Likewise, it is a basic principle that a decision with
absolutely nothing to support it is void.49 "A void decision may be assailed or
impugned at any time either directly or collaterally, by means of a petition
filed in the same case or by means of a separate action, or by resisting such
decision in any action or proceeding where it is invoked."50 Here, the trial
court indulged in speculations on its view of the voice of the people, and
decided the case disregarding the evidence, but on its own intuition, ipse
 82
dixit.51 How was this voice communicated to the trial court? Certainly not by
competent evidence adduced before the court as it should be, but by
extra-sensory perception. This is invalid in law. Contrary to its own finding
that petitioner obtained 83,600 valid votes against 66,602 valid votes for the
respondent as second placer, or a plurality of 17,007 votes, the trial court
declared the second placer as the winner. This is a blatant abuse of judicial
discretion by any account. It is a raw exercise of judicial function in an
arbitrary or despotic manner, amounting to evasion of the positive duty to
act in accord with law.52
In a special civil action for certiorari, the burden is on petitioner to prove not
merely reversible error, but grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of the public respondent Judge. "By grave
abuse of discretion is meant capricious and whimsical exercise of judgment
as is equivalent to lack of jurisdiction. Mere abuse of discretion is not
enough. It must be grave abuse of discretion as when the power is
exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and must be so patent and so gross as to amount to an
evasion of a positive duty or to a virtual refusal to perform the duty enjoined
or to act at all in contemplation of law."53 We must emphasize that election
to office is determined by the highest number of votes obtained by a
candidate in the election.
The Judgment
WHEREFORE, the Court GRANTS the petition. The Court ANNULS and
DECLARES VOID the decision dated April 24, 2000 of the trial court in
Election Protest Case No. V-14-98.
The temporary restraining order we issued on May 8, 2000, is made
permanent.
Let Election Protest Case No. V-14-98 be remanded to the trial court for
decision within a non-extendible period of fifteen (15) days from notice of
this decision. The judge shall report to this Court on the decision rendered
within five (5) days from rendition submitting a copy thereof to the Office of
the Clerk of Court en banc.
This decision is immediately executory.
No costs.
SO ORDERED.
[G.R. No. 88158. March 4, 1992.]
DANIEL GARCIA and TEODORO O’HARA, Petitioners, v. ERNESTO DE
JESUS and CECILIA DAVID, and THE COMMISSION ON
ELECTIONS, Respondents.
[G.R. Nos. 97108-09. March 4, 1992.]
TOMAS TOBON UY, Petitioner, v. COMMISSION ON ELECTIONS and
JOSE C. NEYRA, Respondents.
F .B. Santiago, Nalus, Magtalas, Catalan & Associates for petitioners
in 88158.
Dionisio E. Bala, Jr. and Julian de la Rosa for petitioner in 97108-09.
Francisco V . Marallag & Fred V . Marallag for private respondent in
97108-09.
SYLLABUS
1. POLITICAL LAW; COMMISSION ON ELECTIONS; WITHOUT
JURISDICTION TO ISSUE WRITS OF CERTIORARI. — In the absence of
any specific conferment upon the COMELEC, either by the Constitution or
by legislative fiat, the COMELEC is bereft of jurisdiction to issue said Writs. It
is the COMELEC alone, invoking its Constitutionally invested appellate
jurisdiction and rule-making power, that arrogated unto itself the authority to
issue Writs of Certiorari, Prohibition and Mandamus in Rule 28, Section 1, of
its Rules of Procedure. However, neither the appellate jurisdiction of the
COMELEC nor its rule-making power justifies such self-conferment of
authority.
2. REMEDIAL LAW; JURISDICTION; DEFINED AND CLASSIFICATION. —
Jurisdiction or the legal power to hear and determine a cause or causes of
action, must exist as a matter of law. It may be classified into original
jurisdiction and appellate jurisdiction. Original jurisdiction is the power of the
Court to take judicial cognizance of a case instituted for judicial action for the
first time under conditions provided by law. Appellate jurisdiction is the
authority of a Court higher in rank to re-examine the final order or judgment of
a lower Court which tried the case now elevated for judicial review (Remedial
Law Compendium, Regalado, Florenz D., Fifth Revised Edition, Vol. 1, p. 3).
Since the two jurisdictions are exclusive of each other, each must be
expressly conferred by law. One does not flow from, nor is inferred from, the
other.
3. ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; AUTHORITY TO ISSUE
WRIT INVOLVES THE EXERCISE OF ORIGINAL JURISDICTION;
COMELEC ONLY WITH APPELLATE JURISDICTION. — In the Philippine
setting, the authority to issue Writs of Certiorari, Prohibition and Mandamus
involves the exercise of original jurisdiction. Thus, such authority has always
been expressly conferred, either by the Constitution or by law. What the
Constitution granted the COMELEC was appellate jurisdiction. The
Constitution makes no mention of any power given the COMELEC to
exercise original jurisdiction over Petitions for Certiorari, Prohibition and
Mandamus unlike in the case of the Supreme Court which was specifically
conferred such authority (Art. VIII, Sec, 5[1]). The immutable doctrine being
that jurisdiction is fixed by law, the power to issue such Writs cannot be
implied from the mere existence of appellate jurisdiction. Just as implied
repeal of statutes are frowned upon, so also should the grant of original
jurisdiction by mere implication to a quasi-judicial body to tabooed. If
appellate jurisdiction has to be statutorily granted, how much more the
original jurisdiction to issue the prerogative Writs?
4. ID.; JURISDICTION; CONFERRED BY LAW AND NEVER DERIVED BY
IMPLICATION. — As a matter of fact, the well-settled rule is that jurisdiction
is conferred only by the Constitution or by law (Orosa, Jr. v. Court of Appeals,
G.R. Nos. 76826-32, 28 January 1991; Bacalso v. Ramolete, G.R. No.
L-22488, 26 October 1967, 21 SCRA 519). It is never derived by implication.
Indeed," (w)hile the power to issue the writ of certiorari is in some instance
conferred on all courts by constitutional or statutory provisions, ordinarily, the
particular courts which have such power are expressly designated" (J.
Aquino’s Concurring Opinion in Pimentel v. Comelec, G.R. Nos. 53581-83,
December 19, 1980, 101 SCRA 769, citing 14 C.J.S. 202; Emphasis ours).
5. POLITICAL LAW; COMMISSION ON ELECTIONS; ONLY WITH
APPELLATE JURISDICTION ABSENT ANY SPECIFIC CONFERMENT TO
ISSUE WRITS OF CERTIORARI, PROHIBITION AND MANDAMUS. —
Apparently, the COMELEC Rule on its Certiorari jurisdiction is patterned after
the previous authorization to the Court of Appeals to issue Writs of Certiorari,
Prohibition and Mandamus in aid of its appellate jurisdiction. That authority,
however, was not inherent in the Court of Appeals but was specifically
conferred by Section 30 of the Judiciary Act (Rep. Act No. 296) and Section
9(1) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129). It does not
follow that just because the 1987 Constitution vests the COMELEC with
appellate jurisdiction, without more, it can issue such Writs in aid of that
appellate jurisdiction.
6. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; VIEW THAT
WRITS ARE BUT COMMON-LAW WRITS, NOT APPLICABLE IN THIS
JURISDICTION. — The view that the subject Writs are but common-law
Writs not owing their existence to any constitutional provision or statutory
enactment may be true in foreign jurisdictions but not in the Philippine judicial
system where such Writs are specifically characterized as original Special
Civil Actions (Rule 65, Rules of Court). It is original jurisdiction, as contrasted
to appellate jurisdiction, that is exercised in the issuance of said Writs.
7. ID.; ID.; ID.; WRITS INHERENT TO JUDICIAL TRIBUNALS EXERCISING
APPELLATE JURISDICTION; DOES NOT COMPREHEND AGENCIES
EXERCISING ADMINISTRATIVE AND QUASI-JUDICIAL POWERS. —
Although there may be authorities in other jurisdictions which maintain that
such Writs are inherent in the power of higher Courts exercising appellate
jurisdiction, the same refers to judicial tribunals, which the COMELEC is not.
 83
What this agency exercises are administrative and quasi-judicial powers
(Filipinas Engineering and Machine Shop v. Ferrer, G.R. No. L-31455, 28
February 1985, 135 SCRA 25).
8. ID.; ID.; ID.; DEFINED. — As defined, Certiorari "is a writ from a superior
court to an inferior court or tribunal commanding the latter to send up the
record of a particular case" (Pimentel v. COMELEC, supra). The function of
a Writ of Certiorari is to keep an inferior Court within the bounds of its
jurisdiction or to prevent it from committing such a grave abuse of discretion
amounting to excess of jurisdiction (Central Bank of the Philippines v. Court
of Appeals, G.R. No. 41859, 8 March 1989, 171 SCRA 49).
9. POLITICAL LAW; COMMISSION ON ELECTIONS; GRANT OF
APPELLATE JURISDICTION THERETO DOES NOT NECESSARILY
MAKE IT A SUPERIOR COURT. — The grant of appellate jurisdiction to the
COMELEC does not necessarily make it a "superior Court" vis-a-vis
Regional Trial Courts. In fact, in People v. Delgado (G.R. Nos. 93419-32,18
September 1990, 189 SCRA 715), we ruled that Regional Trial Courts have
jurisdiction to review the actions taken by the COMELEC in criminal
prosecutions for violations of election laws. This, notwithstanding the grant
to the COMELEC of "exclusive power" to conduct preliminary investigations
of all election offenses punishable under Section 265 of the Omnibus
Election Code.
10. ID.; ID.; POWER TO PROMULGATE ITS OWN RULES OF
PROCEDURE, CANNOT INCLUDE THE CONFINEMENT UPON ITSELF
OF JURISDICTION TO ISSUE WRITS OF CERTIORARI. — The power
vested in the COMELEC to promulgate its Rules of Procedure neither
confers upon itself the jurisdiction to issue the prerogative Writs. Procedure,
as distinguished from jurisdiction, is the means by which the power or
authority of a Court to hear and decide a class of cases is put into action
(Manila Railroad Co. v. Attorney General, 20 Phil. 523). Rules of procedure
are remedial in nature and not substantive. They cover only rules on
pleadings and practice. And in respect of the COMELEC, the authority to
promulgate its rules of procedure was specifically "in order to expedite
disposition of cases" (Section 3, Article IX-C). That limited purpose can not
be expanded to include the conferment upon itself of jurisdiction which is
substantive in nature and can only be fixed by law.
11. ID.; ID.; ID.; DOCTRINE LAID DOWN IN PIMENTEL CASE,
REITERATED IN CASE AT BAR. — The doctrine laid down in Pimentel,
supra, holding that the COMELEC has not been invested with jurisdiction to
issue the Writs in question, therefore, still finds application under the 1987
Constitution. Said case also involved an elective municipal official except
that it was decided under the regime of the 1973 Constitution and the 1987
Election Code (Pres. Decree No. 1296). There is no gainsaying that, unlike
the 1987 Constitution, the 1973 Constitution did not grant appellate
jurisdiction to the COMELEC over election contests involving elective
municipal officials decided by trial courts of general jurisdiction.
Nonetheless, such appellate jurisdiction was conferred upon it by Section
196 of the 1987 Election Code (Pres. Decree No. 1296). Section 190
referred to in the first paragraph deals with election contests for municipal
and municipal district offices. Again, while the 1973 Constitution did not
empower the COMELEC to promulgate its own rules of procedure, Section
192 of the same 1978 Election Code granted it such powers. It would
appear, therefore, that what were merely statutory provisions under the
1978 Election Code became constitutional grants under the 1987
Constitution. Significantly, however, neither the 1973 Constitution nor the
1987 Constitution expressly confers upon the COMELEC the jurisdiction to
issue Writs of Certiorari, Prohibition and Mandamus. In essence, therefore,
the statutory set-up in the present Petition and in Pimentel, insofar as the
COMELEC power to issue those Writs is concerned, is on all fours.
12. ID.; CONGRESS; WITH POWER TO DEFINE JURISDICTION OF
VARIOUS COURTS AND QUASI-JUDICIAL BODIES. — There is no
specific grant to the COMELEC, either in the Constitution or by legislative
fiat, of jurisdiction over said petitions. In the last analysis, the remedy lies
with the legislature and not with this Court. It is Congress that has the power
to define, prescribe, and apportion the jurisdiction of the various Courts (Art.
VIII, Sec. 2, 1987 Constitution). That should include quasi-judicial bodies.
13. ID.; DUE PROCESS; OPPORTUNITY TO BE HEARD,
INDISPENSABLE. — Absence of hearing per se, does not necessarily
imply denial of due process. The fact that they were afforded reasonable
opportunity to explain their side of the controversy through their pleadings,
destroys the validity of their argument. As long as the parties were given the
opportunity to be heard before judgment was rendered, the demands of due
process are sufficiently met (Lindo v. COMELEC, G.R. No. 95016, 11
January 1991, 194 SCRA 25).
14. ID.; COMMISSION ON ELECTIONS; WITHOUT AUTHORITY TO
DEPRIVE REGIONAL COURTS OF POWER TO ORDER EXECUTION
PENDING APPEAL. — The COMELEC, however, is bereft of authority to
deprive Regional Trial Courts of the competence to order execution pending
appeal. For one, it is essentially a judicial prerogative. For another, it is a
pronouncement of the COMELEC alone in its procedural rules, without
benefit of statute, unlike in the past where it was specifically provided for in
Section 177 of the Revised Election Code (Rep. Act No. 180, as amended)
and Section 224 of the Election Code of 1971 (Rep. Act No. 6388) from
whence the rule was lifted verbatim. Significantly, however, when the
Election Code of 1971 (Rep. Act No. 6388) was superseded by the 1978
Election Code (Pres. Decree No. 1296), said clause was deleted therefrom. It
is likewise absent in the Electoral Reforms Law of 1987 (Rep. Act No. 6646)
and in the Omnibus Election Code (B.P. Blg. 881), which were the election
laws in effect during the 18 January 1988 local elections. There is no express
provision of law, therefore, disauthorizing executions pending appeal, and
the COMELEC, in its procedural rules alone, should not be allowed to divest
Regional Trial Courts of that authority. It deprives the prevailing party of a
substantive right to move for such relief contrary to the constitutional
mandate that those Rules can not diminish nor modify substantive rights
(Section 6, Article IX-A, 1987 Constitution).
15. ID.; REVISED ELECTION CODE; CLAUSE "AS SOON AS THE
JUDGMENT BECOMES FINAL," INTERPRETED AS DEFINING THE
EFFECT OF A FINAL JUDGMENT ON THE RIGHT OF A DE JURE
ELECTIVE OFFICIAL TO SERVE UP TO THE END OF THE TERM. — At
any rate, the clause "as soon as the judgment becomes final" had already
been interpreted by this Court as a general one defining the effect of a final
judgment on the right of the winner to assume the contested office as the de
jure elected official to serve up to the end of the term (Gahol v. Hon. Riodique,
G.R. No. L-40415, 27 June 1975, 64 SCRA 494 at p. 514). It does not
disallow Regional Trial Courts from ordering execution pending appeal.
16. REMEDIAL LAW; PROVISIONS OF THE RULES OF COURT, APPLIED
BY ANALOGY TO ELECTION CONTESTS. — Section 2, Rule 39 of the
Rules of Court, which allows Regional Trial Courts to order executions
pending appeal upon good reasons stated in a special order, may be made to
apply by analogy or suppletorily to election contests decided by them (Rule
43, Section 1, COMELEC Rules of Procedure).
17. POLITICAL LAW; ELECTION LAWS; COURT’S DECISION ON
PROCLAMATION CASES GIVEN PREFERENCE OVER PROCLAMATION
MADE BY THE BOARD OF CANVASSERS. — Indeed, as much recognition
should be given to the value of the decision of a judicial body as a basis for
the right to assume office as that given by law to the proclamation made by
the Board of Canvassers. To construe otherwise would be to bring back the
ghost of the "grab-the-proclamation-prolong-the-protest" techniques so often
resorted to by devious politicians in the past in their efforts to perpetuate their
hold to an elective office. This would, as a consequence, lay to waste the will
of the electorate (See Estrada v. Sto. Domingo, G.R. No. L-30570, 29 July
1969; Lagumbay v. COMELEC, G.R. No. L-25444, 31 January 1966, 16
SCRA 175).
CRUZ, J., concurring:chanrob1es virtual 1aw library
1. CONSTITUTIONAL LAW; CONGRESS; WITH POWER TO DEFINE
JURISDICTION OF VARIOUS COURTS. — It is only Congress that has the
power to "define, prescribe and apportion the jurisdiction of the various
courts," subject only to certain specified limitations. (Article VIII, Section 2).
Conformably, every judicial tribunal must trace its power to issue writs
of certiorari to an express authorization from the legislature and not to mere
inference. I know of no such tribunal that exercises this power on the sole
justification that it is an appellate court.
2. ID.; SUPREME COURT; POWER TO ISSUE WRITS OF CERTIORARI,
AN EXPRESS GRANT. — The Supreme Court itself derives its power to
issue writs of certiorari not by implication only from its appellate jurisdiction
but by an express grant in Article VIII, Section 5 of the Constitution.
Furthermore, it may exercise this power only "as the law or rules of Court
may provide" under paragraph 2 of that section, which means that the
conferment is not automatic or self-executing. Without such implementation,
this Court is powerless to issue writs of certiorari in the appealed cases
mentioned in that provision even if it is the highest court in the land.
3. ID.; COMMISSION ON ELECTIONS; AN ADMINISTRATIVE BODY
WITHOUT AUTHORITY TO ISSUE WRITS OF CERTIORARI. — We cannot
 84
be less strict with the Commission on Elections, which is essentially only an
administrative body. If even the Supreme Court itself can be so inhibited by
no less than the Constitution, I see no logic in allowing the Commission on
Elections a wider latitude in the exercise of what is clearly a judicial power.
And on such a fragile ground. While I may concede that this agency can
exercise the power if expressly allowed by the legislature, I reject the notion
that it can claim such jurisdiction by mere implication.
BIDIN, J., dissenting:chanrob1es virtual 1aw library
1. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; WRITS
MAY BE ISSUED IN THE EXERCISE OF NOT ONLY ORIGINAL BUT
ALSO IN AID OF APPELLATE JURISDICTION. — The writs
of certiorari may be issued not only in the exercise of original jurisdiction but
also in aid of appellate jurisdiction as now conferred upon the Court of
Appeals (Sec. 9 [1], BP 129). Inasmuch as the Court of Appeals had been
issuing writs of certiorari in aid of its appellate jurisdiction pursuant to Sec. 9
[1], BP 129, and before that Sec. 4, Rule 65, it cannot be said
that certiorari is limited to the exercise of original jurisdiction only.
2. POLITICAL LAW; ELECTIONS; COMMISSION ON ELECTIONS;
DOCTRINE LAID DOWN IN PIMENTEL CASE (101 SCRA 769 [1980])
THAT COMELEC DID NOT HAVE JURISDICTION OVER PETITIONS
FOR CERTIORARI, PROHIBITION OR MANDAMUS, DEEMED
ABANDONED UNDER THE 1987 CONSTITUTION. — In Pimentel, (101
SCRA 769 [1980]), this Court ruled that the COMELEC did not have
jurisdiction over petitions for certiorari, prohibition or mandamus in election
contests cognizable by the then Court of First Instance and appealable to
the Commission on the ground that such jurisdiction was not conferred to it
by constitutional or statutory enactment. It must be noted, however, that the
Pimentel case was decided under the 1973 Constitution which limited the
Commission’s jurisdiction over election contests relating to the members of
the Batasang Pambansa, elective provincial and city officials, and excluded
therefrom election contests involving municipal and barangay officials. Such
limitation no longer holds true under the present state of the law. Neither is
this a case where the COMELEC justifies its assumption of jurisdiction by
applying, by analogy, Sec. 4, Rule 65 of the Rules of Court as it did in the
case of Pimentel. Section 2 (2), Art. IX-C of the 1987 Constitution now
grants the COMELEC appellate jurisdiction over all contests involving
elective municipal official decided by trial courts of general jurisdiction or
involving elective barangay officials decided by trial courts of limited
jurisdiction. Taken in conjunction with Sec. 3, Art. IX-C, which empowers
the Commission to promulgate its rules of procedure, the above
constitutional grant of appellate jurisdiction to the COMELEC over election
cases cognizable by the trial courts of general or limited jurisdiction is broad
enough to cover petitions for certiorari, prohibition and mandamus in aid of
its appellate jurisdiction.
3. ID.; ID.; ID.; RULE-MAKING POWER UNDER THE 1987
CONSTITUTION IMPLIES AUTHORITY TO ISSUE WRITS OF
CERTIORARI, PROHIBITION AND MANDAMUS. — It is significant to note
that no similar provision granting respondent COMELEC with rule-making
power as provided in the present Constitution is found in the 1973
Constitution, the fundamental law in force when the Pimentel case was
decided. Such constitutional conferment of rule-making power in favor of
the COMELEC necessarily implies, if not in itself inherent, the authority of
the Commission to issue writs of certiorari, prohibition and mandamus in aid
of its appellate jurisdiction expressly conferred by the constitution.
4. REMEDIAL LAW; SPECIAL CIVIL ACTION; CERTIORARI; FUNCTION
OF THE WRIT. — It is elementary that the function of the writ is to keep an
inferior court within its jurisdiction or to prevent it from committing such a
grave abuse of discretion amounting to excess of jurisdiction (Central Bank
v. Court of Appeals, 171 SCRA 429 [1989]; Calagui v. Court of Appeals,
186 SCRA 564 [1990]; Brillo v. Buklatan, 87 Phil. 519 [1950]).
5. ID.; ID.; ID.; POWER TO ISSUE WRITS FLOWS FROM THE
EXISTENCE OF APPELLATE JURISDICTION; CASE AT BAR. — The
power to issue special writs also flows from the existence of appellate
jurisdiction is a doctrinal pronouncement and settled jurisprudence. It has
been held that "grant of jurisdiction implies that there is included in it the
power necessary to its effective exercise and to make all orders that will
preserve the subject of the action and give effect to the final determination
of the appeal" (Kjellander v. Kjellander (132 P 1170 [1913]). Premises
considered, the COMELEC may issue writs of certiorari in aid of its
appellate jurisdiction over all contests involving elective municipal officials
decided by trial courts of general jurisdiction or involving elective barangay
officials decided by trial courts of limited jurisdiction.
6. ID.; ID.; ID.; A COMMON LAW WRIT WHICH DOES NOT OWE ITS
EXISTENCE TO CONSTITUTIONAL PROVISION OR STATUTORY
ENACTMENT. — The Court must not lose sight of the fact of the origin and
historical development of the special writs as it was understood in common
law jurisdiction from where it evolved and carried over to the Philippine court
system (i.e., from Act 190 through RA 296 to BP 129) that" (t)he writ
of certiorari does not owe its existence to constitutional provision or statutory
enactment. It is a common law writ, of ancient origin, and one of the most
valuable and efficient remedies which came to us with that admirable system
of jurisprudence" (Tennessee Cent. R. Co. v. Campbell, 75 SW 1012 [1903]).
7. ID.; COURTS; ONE OF THE INHERENT POWERS OF AN APPELLATE
COURT IS TO MAKE USE OF ALL WRITS. —" (I)t is an essential doctrine
that one of the essential attributes of appellate jurisdiction, and one of the
inherent powers of the appellate court, is the right to make use of all writs
known to the common law, and, if necessary, to invent new writs or
proceedings in order to suitably exercise the jurisdiction conferred (Wheller v.
Northern Colorado Irrigation Co., 11 P 103 [1986]; citing Attorney General v.
Railroad Cos., 35 Wis. 425; Marbury v. Madison, 1 Cranch 137; U.S. v.
Commissioners, 1 Morris, (Iowa) 42; Attorney General v. Blossom, 1 Wis
277).
8. CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; WITH
JUDICIAL POWERS TO BE JUDGE OF ELECTION CONTESTS. — The
power to be the "judge . . . of . . . contests relating to the elections, returns
and qualifications of any public official is essentially judicial. As such, . . ., it
belongs exclusively to the judicial department, except only insofar as the
Constitution provides otherwise." (Lopez v. Roxas, 17 SCRA 756 [1966];
citing Matthews, American Constitutional System; Cooley, Thomas M., A
Treatise on Constitutional Limitations, Vol. I, pp. 270-271, 1927 ed.; 23 W &
P 147 [1965 Pocket Part]; State ex rel. Tanner v. Duncan, 10 So. 2d 507, 511,
23 W & P 148, supra). In granting the COMELEC with the powers and
functions to "exercise exclusive original jurisdiction over all contests relating
to the elections, returns and qualifications of all elective regional, provincial
and city officials, and appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction" (Sec.
2 [2], Art. IX-C, Constitution), the Constitution vested upon the COMELEC
judicial powers to decide all contests relating to elective local officials as
therein provided.
9. ID.; JUDICIAL POWER, DEFINED. — As defined in the Constitution,"
(j)udicial power includes the duty of the courts of justice to settle actual
controversies involving rights which are legally demandable and enforceable,
and to determine whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government" (Sec. 1, par. 2, Art, VIII).
10. ID.; COMMISSION ON ELECTIONS; WITH JURISDICTION TO ISSUE
WRITS OF CERTIORARI IN AID OF ITS APPELLATE JURISDICTION. —
Since the COMELEC, in discharging its appellate jurisdiction pursuant to Sec.
2 (2), Art. IX-C, acts a court of justice performing judicial power and said
power includes the determination of whether or not there has been grave
abuse of discretion amounting to lack or excess of jurisdiction, it necessarily
follows that the COMELEC, by constitutional mandate, is vested with
jurisdiction to issue writs of certiorari in aid of its appellate jurisdiction.
11. ID.; ID.; SHOULD NOT BE HAMPERED WITH RESTRICTIONS IN THE
DISCHARGE OF ITS DUTIES. — The Commission on Elections is a
constitutional body. It is intended to play a distinct and important part in our
scheme of government. In the discharge of its functions, it should not be
hampered with restriction that would be fully warranted in the case of a less
responsible organization. The Commission may err, so may this court also. It
should be allowed considerable latitude in devising means and methods that
will insure the accomplishment of the great objective for which it was created
— free, orderly and honest elections. We may not agree fully with its choice
of means, but unless these are clearly illegal or constitute gross abuse of
discretion, this court should not interfere. Politics is a practical matter . . .
(Sumulong v. COMELEC, 73 Phil. 288.)
DECISION
 85
MELENCIO-HERRERA, J.:
The jurisdiction of the Commission on Elections (COMELEC) to issue Writs
of Certiorari, Prohibition and Mandamus in electoral contests involving
municipal and barangay officials is the common question addressed in
these elections cases, hence, their consolidation.
The antecedent facts follow:chanrob1es virtual 1aw library
(1) G.R. No. 88158 (The Antipolo Case)
In the 18 January 1988 local elections, Petitioners Daniel GARCIA and
Teodoro O’HARA were the winning candidates for Mayor and Vice Mayor,
respectively, of Antipolo, Rizal. They were proclaimed as such on 22
January 1988.
On 1 February 1988, Private Respondents Ernesto DE JESUS and Cecilia
DAVID instituted an election protest before the Regional Trial Court of
Antipolo, Rizal, Branch 72 (RTC), docketed as Election Case No. 02-A,
where the results in twenty-five (25) precincts were put in issue.
On 25 July 1988, the RTC issued an Order directing the delivery to it of all
ballot boxes and other election paraphernalia used in the 25 protested
precincts so that the ballots could be examined and the votes recounted
After five (5) ballot boxes were already examined and revised, Petitioner’s
newly-hired counsel moved for the suspension of the hearing being
conducted on 18 September 1988 alleging that an error was committed in
the proceedings because there was no basis for the opening of the ballot
boxes. He contended that the irregularities alleged in the election protest do
not relate to the appreciation of ballots and thus, the opening of those boxes
would not affect the result of the election.
On 26 September 1988, Petitioners GARCIA and O’HARA filed before the
RTC a "Motion To Dismiss Opening Of Ballot Boxes and/or To Dismiss The
Protest" which was premised on the ground that the allegations in the
election protest were merely self-serving.chanroblesvirtualawlibrary
Acting on the aforesaid Motion, the RTC issued an Order dated 28 October
1988, amending its Order dated 25 July 1988, limiting the opening of ballot
boxes to only nine (9) precincts out of the 25 protested ones, and limiting
the examination of the ballot boxes only to those anomalies specified in the
annexes attached to the election protest by Respondents DE JESUS and
DAVID.
The latter moved for reconsideration thereof which was denied by the RTC,
in an Order dated 27 December 1988. On 9 January 1989, Respondents
DE JESUS and DAVID filed a Petition for Certiorari and Mandamus before
the COMELEC, docketed as SPR No. 289, which sought to nullify the RTC
Order limiting the examination of ballot boxes to only 9 precincts.
On 13 January 1989, respondent COMELEC temporarily restrained the
proceedings before the RTC and set for hearing Respondents DAVID and
DE JESUS’ application for Preliminary Injunction on 29 January 1989.
Petitioners GARCIA and O’HARA, meanwhile, registered their objection to
the assumption of jurisdiction by the COMELEC over the Petition
for Certiorari and Mandamus through their "Manifestation With Motion To
Dismiss." It was their contention that the COMELEC was not empowered to
take cognizance of Petitions for Certiorari, Prohibition and Mandamus.
After the parties had filed their respective pleadings, the COMELEC issued
the questioned Decision, dated 27 April 1989, which directed the RTC to
open all the ballot boxes in the 25 protested precincts.
(2) G.R. Nos. 97108-09 (The Isabela Case)
After the canvass of election returns was made in the same local elections,
Respondent Jose C. NEYRA was proclaimed Mayor of Gama, Isabela over
Petitioner Tomas TOBON UY, with a plurality of 28 votes.
Petitioner TOBON UY filed an election protest before the Regional Trial
Court of Ilagan, Isabela, Branch 16 (RTC), docketed as Election Case No.
369. On 7 January 1991, the RTC declared TOBON UY the winner "by a
majority of five (5) votes" over NEYRA (RTC Decision, p. 24).
On the same date that said RTC Decision was promulgated, NEYRA filed a
"Notice of Appeal," and TOBON UY, a "Motion for Execution Pending
Appeal," with the latter pleading set for hearing on 10 January 1991.
The day before, or on 9 January 1991, NEYRA filed before the COMELEC a
Petition for Certiorari and/or Prohibition, docketed as SPR No. 1-91, seeking
to enjoin the RTC from further acting on TOBON UY’s aforesaid "Motion for
Execution Pending Appeal."cralaw virtua1aw library
On 10 January 1991, the RTC, after due hearing, gave due course to
NEYRA’s appeal, granted execution pending appeal stating the special
reasons Therefor, and required TOBON UY to post a bond in the amount of
P300,000.00. On the same date, the COMELEC issued a Temporary
Restraining Order enjoining the RTC from further proceeding with the case.
NEYRA’s application for a Writ of Preliminary Injunction was likewise set for
hearing by the COMELEC on 24 January 1991.
On 15 January 1991, NEYRA filed a second Petition for Certiorari and/or
Prohibition before the COMELEC, docketed as SPR No. 2-91. This time, he
sought to set aside the RTC Order, dated 10 January 1991, which granted
TOBON UY’s "Motion for Execution Pending Appeal."cralaw virtua1aw library
The COMELEC took cognizance of both Certiorari Petitions and, on 15
February 1991, issued the questioned Resolution (in SPR Nos. 1-91 & 2-91),
declaring as null and void the Writ of Execution Pending Appeal granted by
the RTC, premised on Rule 35, Section 18, of its Rules of Procedure, and
enjoining TOBON UY from "assuming the office and performing in whatever
and however manner the duties of Mayor of Gamu, Isabela, until the final
disposition of the appeal."cralaw virtua1aw library
Principally, Petitioners GARCIA and O’HARA in G.R. No. 88158, and
Petitioner TOBON UY in G.R. Nos. 97108-09, question the arrogation unto
itself by the COMELEC of the power to issue Writs of Certiorari, Prohibition
and Mandamus. They invoke The previous ruling of this Court in Pimentel v.
COMELEC (G.R. Nos. 53581-83, 19 December 1980, 101 SCRA 769), which
maintained that no such jurisdiction was ever conferred on respondent
Commission by the 1973 Constitution or by law.cralawnad
On the other hand, all Respondents in the Antipolo Case (G.R. No. 88158)
and in the Isabela Case (G.R. Nos. 97108-09) contend that since the 1987
Constitution now expressly empowers the COMELEC to exercise "appellate
jurisdiction over all contests involving elective municipal officials decided by
trial courts of general jurisdiction" (Section 2[2], Article IX-C), and to
"promulgate its own rules concerning pleadings and practice before it"
provided they do "not diminish, increase, or modify substantive rights"
(Section 6, Article IX-A and Section 3, Article IX-C), the COMELEC validly
promulgated the rule which empowers it to issue the special Writs.
As a subsidiary issue, Petitioners GARCIA and O’HARA maintain that the
COMELEC denied them due process in the Antipolo Case (G.R. No. 88158)
when it rendered its questioned Decision without benefit of hearing. For his
part, TOBON UY, in the Isabela Case (G.R. Nos. 97108-09), raises the
question of whether or not Regional Trial Courts have the authority to order
execution pending appeal in election contests decided by it. His view is that
said Courts possess that authority. Respondent NEYRA contends otherwise.
In the absence of any specific conferment upon the COMELEC, either by the
Constitution or by legislative fiat, the COMELEC is bereft of jurisdiction to
issue said Writs.
It is the COMELEC alone, invoking its Constitutionally invested appellate
jurisdiction and rule-making power, that arrogated unto itself the authority to
issue Writs of Certiorari, Prohibition and Mandamus in Rule 28, Section 1, of
its Rules of Procedure, thus:jgc:chanrobles.com.ph
"SECTION 1. When available. — In aid of its appellate jurisdiction in election
cases before courts of general jurisdiction relating to the elections, returns
and qualifications of elective municipal officials, and before courts of limited
jurisdiction in cases relating to the elections, returns and qualifications of
elective barangay officials, the Commission en banc may hear and decide
petitions for certiorari, prohibition and mandamus."cralaw virtua1aw library
However, neither the appellate jurisdiction of the COMELEC nor its
rule-making power justifies such self-conferment of authority.
Jurisdiction, or the legal power to hear and determine a cause or causes of
action, must exist as a matter of law. It may be classified into original
 86
jurisdiction and appellate jurisdiction. Original jurisdiction is the power of the
Court to take judicial cognizance of a case instituted for judicial action for
the first time under conditions provided by law. Appellate jurisdiction is the
authority of a Court higher in rank to re-examine the final order or judgment
of a lower Court which tried the case now elevated for judicial review
(Remedial Law Compendium, Regalado, Florenz D., Fifth Revised Edition,
Vol. I, p. 3). Since the two jurisdictions are exclusive of each other, each
must be expressly conferred by law. One does not flow from, nor is inferred
from, the other.
In the Philippine setting, the authority to issue Writs of Certiorari, Prohibition
and Mandamus involves the exercise of original jurisdiction. Thus, such
authority has always been expressly conferred, either by the Constitution or
by law. As a matter of fact, the well-settled rule is that jurisdiction is
conferred only by the Constitution or by law (Orosa, Jr. v. Court of Appeals,
G.R. Nos. 76828-32, 28 January 1991; Bacalso v. Ramolete, G.R. No.
L-22488, 26 October 1967, 21 SCRA 519). It is never derived by implication.
Indeed," (w)hile the power to issue the writ of certiorari is in some instance
conferred on all courts by constitutional or statutory provisions, ordinarily,
the particular courts which have such power are expressly designated" (J.
Aquino’s Concurring Opinion in Pimentel, supra, citing 14 C.J.S. 202;
Emphasis ours).
Thus, our Courts exercise the power to issue Writs of Certiorari, Prohibition
and Mandamus by virtue of express constitutional grant or legislative
enactments. To enumerate:chanrobles virtual lawlibrary
(1) Section 5[1], Article VIII of the 1987 Constitution conferred upon this
Court such jurisdiction;
(2) Section 9[1] of Batas Pambansa Blg. 129, or the Judiciary
Reorganization Act of 1980, to the Court of Appeals (then Intermediate
Appellate Court);
(3) Section 21[1] of the said Act, to Regional Trial Courts;
(4) Section 5[1] of Republic Act No. 6734, or the Organic Act for the
Autonomous Region in Muslim Mindanao, to the newly created Shari’ah
Appellate Court; and
(5) Article 143[e], Chapter I, Title I, Book IV of Presidential Decree No. 1083,
or the Code of Muslim Personal Law, to Shari’ah District Courts.
Significantly, what the Constitution granted the COMELEC was appellate
jurisdiction. The Constitution makes no mention of any power given the
COMELEC to exercise original jurisdiction over Petitions for Certiorari,
Prohibition and Mandamus unlike in the case of the Supreme Court which
was specifically conferred such authority (Art. VIII, Sec, 5[1]). The
immutable doctrine being that jurisdiction is fixed by law, the power to issue
such Writs cannot be implied from the mere existence of appellate
jurisdiction. Just as implied repeal of statutes are frowned upon, so also
should the grant of original jurisdiction by mere implication to a
quasi-judicial body to tabooed. If appellate jurisdiction has to be statutorily
granted, how much more the original jurisdiction to issue the prerogative
Writs?
Apparently, the COMELEC Rule on its Certiorari jurisdiction is patterned
after the previous authorization to the Court of Appeals to issue Writs
of Certiorari, Prohibition and Mandamus in aid of its appellate jurisdiction.
That authority, however, was not inherent in the Court of Appeals but was
specifically conferred by Section 30 of the Judiciary Act (Rep. Act No. 296)
and Section 9(1) of the Judiciary Reorganization Act of 1980 (B.P. Blg. 129).
It does not follow that just because the 1987 Constitution vests the
COMELEC with appellate jurisdiction, without more, it can issue such Writs
in aid of that appellate jurisdiction.
The view that the subject Writs are but common-law Writs not owing their
existence to any constitutional provision or statutory enactment may be true
in foreign jurisdictions but not in the Philippine judicial system where such
Writs are specifically characterized as original Special Civil Actions (Rule 65,
Rules of Court). It is original jurisdiction, as contrasted to appellate
jurisdiction, that is exercised in the issuance of said Writs. And although
there may be authorities in other jurisdictions which maintain that such Writs
are inherent in the power of higher Courts exercising appellate jurisdiction,
the same refers to judicial tribunals, which the COMELEC is not. What this
agency exercises are administrative and quasi-judicial powers (Filipinas
Engineering and Machine Shop v. Ferrer, G.R. No. L-31455, 28 February
1985, 135 SCRA 25).
As defined, Certiorari "is a writ from a superior court to an inferior court or
tribunal commanding the latter to send up the record of a particular case"
(Pimentel v. COMELEC, supra). The function of a Writ of Certiorari is to keep
an inferior Court within the bounds of its jurisdiction or to prevent it from
committing such a grave abuse of discretion amounting to excess of
jurisdiction (Central Bank of the Philippines v. Court of Appeals, G.R. No.
41859, 8 March 1989, 171 SCRA 49). The grant of appellate jurisdiction to
the COMELEC does not necessarily make it a "superior Court" vis-a-vis
Regional Trial Courts. In fact, in People v. Delgado (G.R. Nos. 93419-32,18
September 1990, 189 SCRA 715), we ruled that Regional Trial Courts have
jurisdiction to review the actions taken by the COMELEC in criminal
prosecutions for violations of election laws. This, notwithstanding the grant to
the COMELEC of "exclusive power" to conduct preliminary investigations of
all election offenses punishable under Section 265 of the Omnibus Election
Code.chanroblesvirtualawlibrary
The power vested in the COMELEC to promulgate its Rules of Procedure
neither confers upon itself the jurisdiction to issue the prerogative Writs.
Procedure, as distinguished from jurisdiction, is the means by which the
power or authority of a Court to hear and decide a class of cases is put into
action (Manila Railroad Co. v. Attorney General, 20 Phil. 523). Rules of
procedure are remedial in nature and not substantive. They cover only rules
on pleadings and practice. And in respect of the COMELEC, the authority to
promulgate its rules of procedure was specifically "in order to expedite
disposition of cases" (Section 3, Article IX-C). That limited purpose can not
be expanded to include the conferment upon itself of jurisdiction which is
substantive in nature and can only be fixed by law.
The doctrine laid down in Pimentel, supra, holding that the COMELEC has
not been invested with jurisdiction to issue the Writs in question, therefore,
still finds application under the 1987 Constitution. Said case also involved an
elective municipal official except that it was decided under the regime of the
1973 Constitution and the 1978 Election Code (Pres. Decree No. 1296).
There is no gainsaying that, unlike the 1987 Constitution, the 1973
Constitution did not grant appellate jurisdiction to the COMELEC over
election contests involving elective municipal officials decided by trial courts
of general jurisdiction. Nonetheless, such appellate jurisdiction was conferred
upon it by Section 196 of the 1978 Election Code (Pres. Decree No. 1296),
reading:jgc:chanrobles.com.ph
"Section 196. Appeal. — From any decision rendered by the Court of First
Instance in the cases stated in Section 190 hereof, the aggrieved party may
appeal to the Commission within five days after receipt of a copy of the
decision; Provided, That no motion for reconsideration shall be entertained
by the court (Emphasis ours).
"The appeal shall proceed as in a criminal case and shall be decided within
sixty days after the case has been submitted for decision."cralaw virtua1aw
library
Section 190 referred to in the first paragraph deals with election contests for
municipal and municipal district offices.
Again, while the 1973 Constitution did not empower the COMELEC to
promulgate its own rules of procedure, Section 192 of the same 1978
Election Code granted it such powers. Thus:jgc:chanrobles.com.ph
"Section 192. 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, city, municipal
and barangay offices. Such rules shall provide a simple and inexpensive
procedure for the expeditious disposition of election contests" (Emphasis
ours).chanrobles virtual lawlibrary
It would appear, therefore, that what were merely statutory provisions under
the 1978 Election Code became constitutional grants under the 1987
Constitution. Significantly, however, neither the 1973 Constitution nor the
1987 Constitution expressly confers upon the COMELEC the jurisdiction to
issue Writs of Certiorari, Prohibition and Mandamus. In essence, therefore,
the statutory set-up in the present Petition and in Pimentel, insofar as the
COMELEC power to issue those Writs is concerned, is on all fours.
Then, as now, there is no specific grant to the COMELEC, either in the
Constitution or by legislative fiat, of jurisdiction over said petitions.
It may be that, as pointed out by the Solicitor General, division of authority
 87
between the Courts and the COMELEC could affect the expeditious
settlement of election contests. That is no justification, however, for
conferring a quasi-judicial body with original Certiorari jurisdiction. That
would place the COMELEC in a class by itself apart from similar
administrative and quasi-judicial agencies. Neither would there be "sharing
of appellate jurisdiction" thereby, since the issuance of the special Writs
involves the exercise of original jurisdiction.
In the last analysis, the remedy lies with the legislature and not with this
Court. It is Congress that has the power to define, prescribe, and apportion
the jurisdiction of the various Courts (Art. VIII, Sec. 2, 1987 Constitution).
That should include quasi-judicial bodies.
Considering that the COMELEC does not have jurisdiction over Petitions
for Certiorari, Prohibition and Mandamus, it would thus be moot and
academic to still pass upon GARCIA and O’HARA’s contention that they
were denied due process when the respondent Commission issued the
questioned Decision in the Antipolo Case. Suffice it to state that absence of
hearing per se, does not necessarily imply denial of due process. The fact
that they were afforded reasonable opportunity to explain their side of the
controversy through their pleadings, destroys the validity of their argument.
As long as the parties were given the opportunity to be heard before
judgment was rendered, the demands of due process are sufficiently met
(Lindo v. COMELEC, G.R. No. 95016, 11 January 1991, 194 SCRA 25).
We now come to the subsidiary issue raised by Petitioner TOBON UY in
G.R. Nos. 97108-09 of whether or not Regional Trial Courts can order
execution pending appeal in election contests decided by it involving
elective municipal officials.
The COMELEC Rules of Procedure would also deprive Regional Trial
Courts of the prerogative to order execution pending appeal in Rule 35,
Section 18, reading:jgc:chanrobles.com.ph
"SEC. 18. Decision on the contest. — The Court shall decide the election
contest within thirty (30) days from the date it is submitted for decision, but
in every case within six (6) months after its filing and shall declare who
among the parties has been elected, or in a proper case, that none of them
has been legally elected. The party who in the judgment has been declared
elected shall have the right to assume the office as soon as the judgment
becomes final." (Emphasis ours).
The COMELEC, however, is bereft of authority to deprive Regional Trial
Courts of the competence to order execution pending appeal. For one, it is
essentially a judicial prerogative. For another, it is a pronouncement of the
COMELEC alone in its procedural rules, without benefit of statute, unlike in
the past where it was specifically provided for in Section 177 of the Revised
Election Code (Rep. Act No. 180, as amended) 1 and Section 224 of the
Election Code of 1971 (Rep. Act No. 6388) 2 from whence the rule was
lifted verbatim. Significantly, however, when the Election Code of 1971
(Rep. Act No. 6388) was superseded by the 1978 Election Code (Pres.
Decree No. 1296), said clause was deleted therefrom. It is likewise absent
in the Electoral Reforms Law of 1987 (Rep. Act No. 6646) and in the
Omnibus Election Code (B.P. Blg. 881), which were the election laws in
effect during the 18 January 1988 local elections.
There is no express provision of law, therefore, disauthorizing executions
pending appeal, and the COMELEC, in its procedural rules alone, should
not be allowed to divest Regional Trial Courts of that authority. It deprives
the prevailing party of a substantive right to move for such relief contrary to
the constitutional mandate that those Rules can not diminish nor modify
substantive rights (Section 6, Article IX-A, 1987 Constitution).
At any rate, the clause "as soon as the judgment becomes final" had
already been interpreted by this Court as a general one defining the effect
of a final judgment on the right of the winner to assume the contested office
as the de jure elected official to serve up to the end of the term (Gahol v.
Hon. Riodique, G.R. No. L-40415, 27 June 1975, 64 SCRA 494 at p. 514). It
does not disallow Regional Trial Courts from ordering execution pending
appeal.
Admittedly, unlike in Section 218 of the Election Code of 1971, applied in
Gahol v. Hon. Riodique, supra, there is no express provision in the Electoral
Reforms Law (Rep. Act No. 6646) nor in the Omnibus Election Code (B.P.
Blg. 881) that would allow execution pending appeal. Said Section 218
reads:chanrobles.com.ph : virtual law library
"Sec. 218. Assumption of office notwithstanding an election contest. —
Every candidate for a provincial, city, municipal or municipal district office
duly proclaimed elected by the corresponding board of canvassers shall
assume office, notwithstanding the pendency in the courts of any contest
against his election, without prejudice to the final decision thereon and
applicable provisions of the Rules of Court regarding execution of judgment
pending appeal."cralaw virtua1aw library
Nonetheless, Section 2, Rule 39 of the Rules of Court, which allows Regional
Trial Courts to order executions pending appeal upon good reasons stated in
a special order, may be made to apply by analogy or suppletorily to election
contests decided by them (Rule 43, Section 1, COMELEC Rules of
Procedure). Indeed, as much recognition should be given to the value of the
decision of a judicial body as a basis for the right to assume office as that
given by law to the proclamation made by the Board of Canvassers. In the
words of Gahol v. Hon. Riodique, supra:jgc:chanrobles.com.ph
". . . why should the proclamation by the board of canvassers suffice as a
basis of the right to assume office, subject to future contingencies attendant
to a protest, and not the decision of a court of justice? Indeed, when it is
considered that the board of canvassers is composed of persons who are
less technically prepared to make an accurate appreciation of the ballots,
apart from their being more apt to yield to external considerations, and that
the board must act summarily, practically racing against time, while on the
other hand, the judge has the benefit of all the evidence the parties can offer
and of admittedly better technical preparation and background, apart from his
being allowed ample time for conscientious study and mature deliberation
before rendering judgment, one cannot but perceive the wisdom of allowing
the immediate execution of decisions in election cases adverse to the
protestees, notwithstanding the perfection and pendency of appeals
therefrom, as long as there are, in the sound discretion of the court, good
reasons therefor."cralaw virtua1aw library
To construe otherwise would be to bring back the ghost of the
"grab-the-proclamation-prolong-the-protest" techniques so often resorted to
by devious politicians in the past in their efforts to perpetuate their hold to an
elective office. This would, as a consequence, lay to waste the will of the
electorate (See Estrada v. Sto. Domingo, G.R. No. L-30570, 29 July 1969;
Lagumbay v. COMELEC, G.R. No. L-25444, 31 January 1966, 16 SCRA
175).
In retrospect, good reasons did, in fact, exist which justified the RTC Order,
dated 10 January 1991, granting execution pending appeal. Among others
mentioned by the RTC are the combined considerations of the near
expiration of the term of office, public interest, the pendency of the election
contest for more than three (3) years, and that TOBON UY had filed a bond in
the amount of P300,000.00 (Rollo, p. 46).
To recapitulate, in the absence of an express Constitutional or legislative
authorization, the COMELEC is devoid of competence to issue special Writs
simply on the basis of its appellate jurisdiction and its rule-making power.
Neither is the COMELEC empowered, through its procedural rules alone, to
deprive Regional Trial Courts of authority, in the exercise of their discretion,
to order execution pending appeal upon good reasons stated in a special
order.
It must be noted that the term of office of the contested positions is nearing
expiration. There is need, then, for this Decision to be immediately executory.
WHEREFORE, these consolidated Petitions for Certiorari and prohibition are
hereby GRANTED.chanrobles virtual lawlibrary
In G.R. No. 88158, the COMELEC Decision, dated 27 April 1989, in SPR No.
2-89 is hereby SET ASIDE, and the Order of the Regional Trial Court of
Antipolo, Rizal, Branch 72, dated 28 October 1988 in Election Case No. 02-A,
limiting the opening of ballot boxes to only nine (9) precincts, is hereby
REINSTATED, the case to proceed until final disposition.
In G.R. Nos. 97108-09, the COMELEC Resolution dated 15 February 1991,
in SPR Nos. 1-91 and 2-91, is likewise SET ASIDE, and the Order of the
Regional Trial Court of Ilagan, Isabela, Branch 16, dated 10 January 1991, in
Election Case No. 369 granting execution pending appeal, is hereby
REINSTATED, without prejudice to the disposition of respondent Jose
Neyra’s appeal before the COMELEC.
This Decision shall be immediately executory.
No costs.

SO ORDERED.
G.R. No. L-106091 December 17, 1993
JOSE "PEPING" NAVARRO, Petitioner, vs. COMMISSION
ELECTIONS AND JOSE "PEMPE" MIRANDA, Respondents.
Ramirez Law Office for petitioner.chanrobles virtual law library
Agustin J. Guillermo for private respondent.
QUIASON, J.:
This is a special civil action for certiorari with a prayer for the issuance of a
temporary restraining order or a preliminary mandatory injunction, to enjoin:
(a) respondent Commission on Elections (COMELEC) from implementing
its questioned Resolution dated June 29, 1992, and (b) the proclamation of
private respondent as Mayor of
Isabela.chanroblesvirtualawlibrarychanrobles virtual law library
Petitioner Jose "Peping" Navarro and private respondent Jose "Pempe"
Miranda were mayoralty candidates in Santiago, Isabela during the
synchronized elections held on May 11,
1992.chanroblesvirtualawlibrarychanrobles virtual law library
Petitioner lost to private respondent.chanroblesvirtualawlibrarychanrobles
virtual law library
On May 21, 1992, petitioner filed with the COMELEC an appeal under
Section 245 of the Omnibus Election Code, in relation to Section 20 of R.A.
No. 7166, to annul and set aside the rulings of the Board of Canvassers of
Santiago, Isabela and the order of Manuel Agpalo, the acting Provincial
Election Supervisor in the canvassing of votes in the mayoralty contest
(SPC No. 92-116). The petition alleged that:
1) The respondent Board erred in not issuing to the
appellant a written notice of the canvassing that took
place on May 12, 1992, in violation of Section 228 of
the Omnibus Election Code;chanrobles virtual law
library
2) The respondent Board erred in continuing with the
canvassing of the election returns despite appellant's
petition to disqualify Domingo Gorospe and Rodrigo
Santos to sit in the board of canvassers, whose
integrity have been assailed for obvious partiality
towards the candidacy of Jose Miranda;chanrobles
virtual law library
3) The respondent Board erred in continuing with the
canvassing of contested returns despite verbal and
written petitions to exclude, supported by clear and
convincing evidence;chanrobles virtual law library
4) The respondent Board erred in continuing with the
canvassing of contested election returns despite the
filing of notices of appeal by appellant and for failure
to observe the provisions of Section 20, R.A.
7166;chanrobles virtual law library
5) Respondent Agpalo erred in issuing an order
setting aside appellant's notice of appeal, a denial of
due process (Rollo, pp. 188-189).
In his Answer/Opposition, private respondent alleged that:
1) Petitioner failed to make a timely objection to the
118 returns from the 118 precincts subject matter of
the appeal (Rollo, p.
88
42).chanroblesvirtualawlibrarychanrobles virtual law
library
2) The affidavits submitted by petitioner in support of
his written objections to the 118 precincts do not make
out a prima facie case showing the existence of fraud,
ON
irregularity or other circumstances constituting the
ground for the objection (Rollo, p. 44).
In his Supplemental Answer, private respondent further alleged: a) that like
petitioner, he was not given a written notice by the Board of Canvassers of its
initial meeting; b) that two lawyers appeared in representation of petitioner at
the meeting of the Board of Canvassers; c) that said lawyers did not register
their objections to the regularity of the proceedings; d) that also present at the
meeting were several supporters of petitioner; and e) that, at any rate, such
failure of the Board of Canvassers to give notice of the initial meeting was not
his fault and a ground for a pre-proclamation controversy (Rollo, pp.
48-49).chanroblesvirtualawlibrarychanrobles virtual law library
In its Resolution dated June 29, 1992, the COMELEC en banc dismissed the
Santiago,
petition without prejudice to the filling of a regular electoral protest (Rollo, pp.
37-51).chanroblesvirtualawlibrarychanrobles virtual law library
Hence, this petition which alleges that the COMELEC has gravely abused its
discretion:
1) When it upheld the regularity of the canvassing of
the election returns inspite of the lack of due notice
thereof and the failure of the board of canvassers to
attach the proof of service of notice to the
records;chanrobles virtual law library
2) When it allowed the municipal board of canvassers
to continue with the canvassing despite the filing of the
motion to disqualify some of the members;chanrobles
virtual law library
3) When it upheld the illegal composition of the
board;chanrobles virtual law library
4) When it affirmed the anomalous membership of a
fourth member of the board, who prepared the minutes
under the Domingo board and Acierto board and
erased from said minutes petitioner's participation
during the proceedings; andchanrobles virtual law
library
5) When it arbitrarily ruled that the grounds raised for
excluding 118 returns are not grounds for
pre-proclamation (Rollo, pp. 151-152).
The COMELEC found that petitioner failed to make timely objections to the
alleged illegal acts committed by the Board of Canvassers, as well as to its
composition and proceedings.chanroblesvirtualawlibrarychanrobles virtual
law library
The COMELEC stated that:
In the light of the these conflicting claims, resort to the
minutes of the respondent board is
necessary.chanroblesvirtualawlibrarychanrobles virtual
law library
Significantly, nothing in the said minutes will show any
such objection by petitioner or his counsels of said
respondent Board's failure to send notices to the
candidates or political parties as required under
Section 228 of the Omnibus Election Code. Or that if
such objections were raised, the same was pursued to
the end. Neither is there in the Minutes any showing
that petitioner's objection to the composition of
 89
respondent Board particularly Chairman Gorospe and
Vice Chairman Santos was made pursuant to the
procedural requirement provided for by Section 19,
R.A. No. 7166. Failing thus, petitioner cannot now
raise and pursue said objections for the first time in
this appeal.chanroblesvirtualawlibrarychanrobles
virtual law library
In the absence of jurisdictional infirmity or error of law, the conclusion
reached by the COMELEC on a matter that falls within its competence is
entitled to utmost respect (Pimping v. Commission on Election, 140 SCRA
192 [1985] ).chanroblesvirtualawlibrarychanrobles virtual law library
Petitioner, more particularly, failed to follow the procedure laid down in
Section 244 of the Omnibus Election Code, which provides:

At this juncture, it needs re-stating that this instant

appeal is on the various rulings of respondent Board
on the following objections raised before it by the
Petitioner, to quote:chanrobles virtual law library
1. Misreading of ballots;chanrobles virtual law library
Parties adversely affected by a ruling of the board of
canvassers of questions affecting the composition or
proceeding of the board may appeal the matter to the
Commission within three (3) days from a ruling thereon.
The Commission shall summarily decide the case
within five days from the filing thereof.

2. Interchanging of results;chanrobles virtual law
library
3. Tampering/falsification of election
returns;chanrobles virtual law library
4. Discrepancies in the Returns;chanrobles virtual law
library
5. Election Returns prepared under duress; threats,
coercion or intimidations;chanrobles virtual law library
6. Substitute/fraudulent returns will materially affect
the standing of the aggrieved candidate (Annex "I",
"J" and "K").chanroblesvirtualawlibrarychanrobles
virtual law library
Petitioner's injection therefore of matters related to
the composition or proceedings of respondent Board
in the discussion of the instant appeal is a failed
attempt to resurrect an abandoned right. In fine,
petitioner/appellant raised, although belatedly and at
a time when estoppel had set in, grounds which could
have been proper for a pre-proclamation controversy
but for his failure to pursue it in a manner and within
the period provided for by law. This is
fatal.chanroblesvirtualawlibrarychanrobles virtual law
library
and Section 7 of the COMELEC Rules on Procedure, which provides:
Procedure before the Board of Canvassers when
composition or proceedings of the board are
contested.chanroblesvirtualawlibrarychanrobles virtual
law library
a) When the composition or proceedings of the board
of canvassers are contested, the board of canvassers
shall, within 24 hours, make a ruling thereon with notice
to the contestant who, if adversely affected, may
appeal the matter to the commission within 5 days after
the ruling with proper notice to the board of
canvassers.
With respect to the alleged mistakes committed by the Board of Canvassers
in the inclusion of certain returns, petitioner failed to follow the procedure laid
down in Section 245 of the Omnibus Election Code. This provision requires
that the party contesting the inclusion or exclusion in the canvass of any
election returns should interpose his verbal objections to the Chairman of the
Board of Canvassers at the time the questioned return is presented for
inclusion or exclusion.chanroblesvirtualawlibrarychanrobles virtual law library
As to Zenaida Taguba, the alleged fourth member of the Board of
Canvassers, there is nothing on record to show that she participated in the
proceedings of the said Board. At most, she merely acted as a secretary,
whose work involved the purely mechanical act of taking down notes of the
discussion.chanroblesvirtualawlibrarychanrobles virtual law library

WHEREFORE, the Court Resolved to DISMISS the

Going over the grounds relied upon in the instant
petition.chanroblesvirtualawlibrarychanrobles virtual law library
appeal, the Commission is not persuaded to consider
the same as appropriate in a pre-proclamation case.
Likewise, the evidence submitted does not warrant SO ORDERED.
such a finding (Rollo, pp. 49-51).

The main issue in this petition is whether or not petitioner made timely oral
objections as to the alleged illegal proceedings and composition of the
Board of Canvassers.chanroblesvirtualawlibrarychanrobles virtual law
library

The finding that petitioner failed to make timely objections to the

composition and the proceedings of the Board of Canvassers involves a
question of fact, which is left to the determination of the
COMELEC.chanroblesvirtualawlibrarychanrobles virtual law library

The Constitution did not intend to place the COMELEC - explicitly made
independent by the Constitution itself - on a lower level than that of statutory
administrative agencies, whose factual findings are generally not disturbed
by the courts except when there is no substantial evidence to support such
findings. Factual matters are not proper for consideration in proceedings
brought either as an original action for certiorari or as an appeal
by certiorari. The main issue in the former case is one of jurisdiction - lack of
jurisdiction or grave abuse of discretion amounting to excess of jurisdiction;
while in the latter case, the issues are limited to the consideration of
questions of law (Padilla v. Commission on Elections, 137 SCRA 424
[1985] ).chanroblesvirtualawlibrarychanrobles virtual law library