Certificate of candidacy

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 115245 July 11, 1995
JUANITO C. PILAR, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.

QUIASON, J .:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court assailing the Resolution dated April 28, 1994 of the
Commission on Elections (COMELEC) in UND No. 94-040.
I
On March 22, 1992, petitioner Juanito C. Pilar filed his certificate of candidacy for the position of member of the Sangguniang
Panlalawigan of the Province of Isabela.
On March 25, 1992, petitioner withdrew his certificate of candidacy.
In M.R. Nos. 93-2654 and 94-0065 dated November 3, 1993 and February 13, 1994 respectively, the COMELEC imposed upon
petitioner the fine of Ten Thousand Pesos (P10,000.00) for failure to file his statement of contributions and expenditures.
In M.R. No. 94-0594 dated February 24, 1994, the COMELEC denied the motion for reconsideration of petitioner and deemed
final M.R. Nos. 93-2654 and 94-0065 (Rollo, p. 14).
Petitioner went to the COMELEC En Banc (UND No. 94-040), which denied the petition in a Resolution dated April 28, 1994
(Rollo, pp. 10-13).
Hence, this petition for certiorari.
We dismiss the petition.
II
Section 14 of R.A. No. 7166 entitled "An Act Providing for Synchronized National and Local Elections and for Electoral Reforms,
Authorizing Appropriations Therefor, and for Other Purposes" provides as follows:
Statement of Contributions and Expenditures: Effect of Failure to File Statement. Every candidate and
treasurer of the political party shall, within thirty (30) days after the day of the election, file in duplicate with
the offices of the Commission the full, true and itemized statement of all contributions and expenditures in
connection with the election.
No person elected to any public office shall enter upon the duties of his office until he has filed the
statement of contributions and expenditures herein required.
The same prohibition shall apply if the political party which nominated the winning candidate fails to file
the statement required herein within the period prescribed by this Act.
Except candidates for elective barangay office, failure to file the statements or reports in connection with
electoral contributions and expenditures as required herein shall constitute an administrative offense for
which the offenders shall be liable to pay an administrative fine ranging from One Thousand Pesos (
P1,000.00) to Thirty Thousand Pesos (P30,000.00), in the discretion of the Commission.
The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be
enforceable by a writ of execution issued by the Commission against the properties of the offender.
It shall be the duty of every city or municipal election registrar to advise in writing, by personal delivery or
registered mail, within five (5) days from the date of election all candidates residing in his jurisdiction to
comply with their obligation to file their statements of contributions and expenditures.
For the commission of a second or subsequent offense under this Section, the administrative fine shall be
from Two Thousand Pesos (P2,000.00) to Sixty Thousand Pesos (P60,000.00), in the discretion of the
Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office
(Emphasis supplied).
To implement the provisions of law relative to election contributions and expenditures, the COMELEC promulgated on January
13, 1992 Resolution No. 2348 (Re: Rules and Regulations Governing Electoral Contributions and Expenditures in Connection
with the National and Local Elections on
May 11, 1992). The pertinent provisions of said Resolution are:
Sec. 13. Statement of contributions and expenditures: Reminders to candidates to file statements. Within
five (5) days from the day of the election, the Law Department of the Commission, the regional election
director of the National Capital Region, the provincial election supervisors and the election registrars shall
advise in writing by personal delivery or registered mail all candidates who filed their certificates of
candidacy with them to comply with their obligation to file their statements of contributions and
expenditures in connection with the elections. Every election registrar shall also advise all
candidates residing in his jurisdiction to comply with said obligation (Emphasis supplied).
Sec. 17. Effect of failure to file statement. (a) No person elected to any public office shall enter upon the
duties of his office until he has filed the statement of contributions and expenditures herein required.
The same prohibition shall apply if the political party which nominated the winning candidates fails to file
the statement required within the period prescribed by law.
(b) Except candidates for elective barangay office, failure to file statements or reports in connection with
the electoral contributions and expenditures as required herein shall constitute an administrative offense
for which the offenders shall be liable to pay an administrative fine ranging from One Thousand Pesos
(P1,000) to Thirty Thousand Pesos (P30,000), in the discretion of the Commission.
The fine shall be paid within thirty (30) days from receipt of notice of such failure; otherwise, it shall be
enforceable by a writ of execution issued by the Commission against the properties of the offender.
For the commission of a second or subsequent offense under this section, the administrative fine shall be
from Two Thousand Pesos (P2,000) to Sixty Thousand Pesos (P60,000), in the discretion of the
Commission. In addition, the offender shall be subject to perpetual disqualification to hold public office.
Petitioner argues that he cannot be held liable for failure to file a statement of contributions and expenditures because he was a
"non-candidate," having withdrawn his certificates of candidacy three days after its filing. Petitioner posits that "it is . . . clear from
the law that candidate must have entered the political contest, and should have either won or lost" (Rollo, p. 39).
Petitioner's argument is without merit.
Section 14 of R.A. No. 7166 states that "every candidate" has the obligation to file his statement of contributions and
expenditures.
Well-recognized is the rule that where the law does not distinguish, courts should not distinguish, Ubi lex non distinguit nec nos
distinguere debemos (Philippine British Assurance Co. Inc. v. Intermediate Appellate Court, 150 SCRA 520 [1987]; cf Olfato v.
Commission on Elections, 103 SCRA 741 [1981]). No distinction is to be made in the application of a law where none is indicated
(Lo Cham v. Ocampo, 77 Phil. 636 [1946]).
In the case at bench, as the law makes no distinction or qualification as to whether the candidate pursued his candidacy or
withdrew the same, the term "every candidate" must be deemed to refer not only to a candidate who pursued his campaign, but
also to one who withdrew his candidacy.
The COMELEC, the body tasked with the enforcement and administration of all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall (The Constitution of the Republic of the Philippines, Art. IX(C), Sec. 2[1]),
issued Resolution No. 2348 in implementation or interpretation of the provisions of Republic Act No. 7166 on election
contributions and expenditures. Section 13 of Resolution No. 2348 categorically refers to "all candidates who filed their
certificates of candidacy."
Furthermore, Section 14 of the law uses the word "shall." As a general rule, the use of the word "shall" in a statute implies that
the statute is mandatory, and imposes a duty which may be enforced , particularly if public policy is in favor of this meaning or
where public interest is involved. We apply the general rule (Baranda v. Gustilo, 165 SCRA 757 [1988]; Diokno v. Rehabilitation
Finance Corporation, 91 Phil. 608 [1952]).
The state has an interest in seeing that the electoral process is clean, and ultimately expressive of the true will of the electorate.
One way of attaining such objective is to pass legislation regulating contributions and expenditures of candidates, and compelling
the publication of the same. Admittedly, contributions and expenditures are made for the purpose of influencing the results of the
elections (B.P. Blg. 881, Sec. 94; Resolution No. 2348, Sec. 1). Thus, laws and regulations prescribe what contributions are
prohibited (B.P. Blg. 881, Sec. 95, Resolution No. 2348, Sec. 4), or unlawful (B.P. Blg. 881, Sec. 96), and what expenditures are
authorized (B.P. Blg. 881, Sec. 102; R.A. No. 7166, Sec. 13; Resolution No. 2348, Sec. 7) or lawful (Resolution No. 2348, Sec.
8).
Such statutes are not peculiar to the Philippines. In "corrupt and illegal practices acts" of several states in the United States, as
well as in federal statutes, expenditures of candidates are regulated by requiring the filing of statements of expenses and by
limiting the amount of money that may be spent by a candidate. Some statutes also regulate the solicitation of campaign
contributions (26 Am Jur 2d, Elections 287). These laws are designed to compel publicity with respect to matters contained in
the statements and to prevent, by such publicity, the improper use of moneys devoted by candidates to the furtherance of their
ambitions (26 Am Jur 2d, Elections 289). These statutes also enable voters to evaluate the influences exerted on behalf of
candidates by the contributors, and to furnish evidence of corrupt practices for annulment of elections (Sparkman v. Saylor [Court
of Appeals of Kentucky], 180 Ky. 263, 202 S.W. 649 [1918]).
State courts have also ruled that such provisions are mandatory as to the requirement of filing (State ex rel. Butchofsky v.
Crawford [Court of Civil Appeals of Texas], 269 S.W. 2d 536 [1954]; Best v. Sidebottom, 270 Ky. 423,109 S.W. 2d 826 [1937];
Sparkman v. Saylor, supra.)
It is not improbable that a candidate who withdrew his candidacy has accepted contributions and incurred expenditures, even in
the short span of his campaign. The evil sought to be prevented by the law is not all too remote.
It is notesworthy that Resolution No. 2348 even contemplates the situation where a candidate may not have received any
contribution or made any expenditure. Such a candidate is not excused from filing a statement, and is in fact required to file a
statement to that effect. Under Section 15 of Resolution No. 2348, it is provided that "[i]f a candidate or treasurer of the party has
received no contribution, made no expenditure, or has no pending obligation, the statement shall reflect such fact."
Lastly, we note that under the fourth paragraph of Section 73 of the B.P. Blg. 881 or the Omnibus Election Code of the
Philippines, it is provided that "[t]he filing or withdrawal of certificate of candidacy shall not affect whatever civil, criminal or
administrative liabilities which a candidate may have incurred." Petitioner's withdrawal of his candidacy did not extinguish his
liability for the administrative fine.
WHEREFORE, the petition is DISMISSED.
Narvasa, C.J., Feliciano, Regalado, Davide, Jr., Romero, Bellosillo, Puno, Vitug, Mendoza and Francisco, JJ., concur.
Kapunan, J., is on leave.



Separate Opinions

MELO, J ., dissenting:
The majority opinion is to the effect that every candidate, including one who has withdrawn his certificate of candidacy, is obliged
to file his statement of contributions and expenditures in line with Section 14 of Republic Act No. 7166 vis-a-vis the pertinent
portions of Comelec Resolution No. 2348. I must concede that the use of the word "shall" in the main statute as well as the
implementing rules generally suggest mandatoriness as to cover all candidates.
But is an anspirant for public office who had a sudden change of heart, so to speak, still considered a candidate to begin with? I
am of the impression that he is not and is thus not bound to render an accounting subsequent to election for the simple reason
that the term 'candidate' is used to designate a person who actually submits himself and is voted for at our election (Santos vs.
Miranda, 35 Phil. 643, 648 (1916) citing State vs. Hirsch, 125 Ind., 207; 9 L.R.A. 107; Moreno, Philippine Law Dictionary, 1972
2nd ed., p. 84) Certainly, one who withdraws his certificate of candidacy 3 days after the filing thereof, can not be voted for at an
election. And considering the shortness of the period of 3 days from the filing to the withdrawal of the certificate of candidacy,
petitioner cannot be accused, as indeed there is no such charge, of utilizing his aborted candidacy for purposes to raise funds or
to extort money from other candidates in exchange for the withdrawal.
I, therefore, vote to grant the petition.
Padilla, J., concurs.

Separate Opinions
MELO, J ., dissenting:
The majority opinion is to the effect that every candidate, including one who has withdrawn his certificate of candidacy, is obliged
to file his statement of contributions and expenditures in line with Section 14 of Republic Act No. 7166 vis-a-vis the pertinent
portions of Comelec Resolution No. 2348. I must concede that the use of the word "shall" in the main statute as well as the
implementing rules generally suggest mandatoriness as to cover all candidates.
But is an aspirant for public office who had a sudden change of heart, so to speak, still considered a candidate to begin with? I
am of the impression that he is not and is thus not bound to render an accounting subsequent to election for the simple reason
that the term 'candidate' is used to designate a person who actually submits himself and is voted for at our election (Santos vs.
Miranda, 35 Phil. 643, 648 (1916) citing State vs. Hirsch, 125 Ind., 207; 9 L.R.A. 107; Moreno, Philippine Law Dictionary, 1972
2nd ed., p. 84) Certainly, one who withdraws his certificate of candidacy 3 days after the filing thereof, can not be voted for at an
election. And considering the shortness of the period of 3 days from the filing to the withdrawal of the certificate of candidacy,
petitioner cannot be accused, as indeed there is no such charge, of utilizing his aborted candidacy for purposes to raise funds or
to extort money from other candidates in exchange for the withdrawal.
I, therefore, vote to grant the petition.
Padilla, J., concurs.

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-54718 December 4, 1985
CRISOLOGO VILLANUEVA Y PARDES, petitioner,
vs.
COMMISSION ON ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF DOLORES, QUEZON, VIVENCIO G.
LIRIO respondents.
R E S O L U T I O N

TEEHANKEE, J.:
Upon consideration of petitioner's motion for reconsideration of the decision of May 3, 1983
1
(which dismissed his petition to set
aside respondent Comelec's resolutions of February 21, 1980 and July 31, 1980 denying his petition for annulment of the
proclamation of respondent Vivencio Lirio as the elected vice-mayor of Dolores, Quezon and for his proclamation instead as such
elected vice-mayor for having received the clear majority of the votes cast), the comments of public and private respondents and
petitioner's consolidated reply and manifestation and motion of June 25, 1985 (stating that respondent abandoned his claim to
the office and accepted and assumed on June 10, 1985, the position of municipal trial judge of Lucban and Sampaloc, Quezon,
as verified from the records of the Office of the Court Administrator), the Court Resolved to RECONSIDER and SET ASIDE its
aforesaid decision and to GRANT the petition at bar.
The undisputed facts show that one Narciso Mendoza, Jr. had filed on January 4, 1980, the last day for filing of certificates of
candidacy in the January 30, 1980 local elections, his sworn certificate of candidacy as independent for the office of vice-mayor
of the municipality of Dolores, Quezon. But later on the very same day, Mendoza filed an unsworn letter in his own handwriting
withdrawing his said certificate of candidacy "for personal reasons." Later on January 25, 1980, petitioner Crisologo Villanueva,
upon learning of his companion Mendoza's withdrawal, filed his own sworn "Certificate of Candidacy in substitution" of
Mendoza's for the said office of vice mayor as a one-man independent ticket. ... The results showed petitioner to be the clear
winner over respondent with a margin of 452 votes (3,112 votes as against his opponent respondent Lirio's 2,660 votes). But the
Municipal Board of Canvassers disregarded all votes cast in favor of petitioner as stray votes on the basis of the Provincial
Election Officer's erroneous opinion that since petitioner's name does not appear in the Comelec's certified list of candidates for
that municipality, it could be presumed that his candidacy was not duly approved by the Comelec so that his votes could not be
"legally counted. " ... The canvassers accordingly proclaimed respondent Vivencio G. Lirio as the only unopposed candidate and
as the duly elected vice mayor of the municipality of Dolores.
Respondent Comelec issued its questioned resolution on February 21, 1980 denying the petition on two grounds after citing the
pertinent legal provisions, as follows:
The 1978 Election Code provides:
SEC. 27. ... No certificate of candidacy duly filed shall be considered withdraw ... unless the candidate
files with the office which received the certificate ... or with the Commission a sworn statement of
withdrawal ...
SEC. 28. ... If, after last day for filing certificates of candidacy, a candidate with a certificate of candidacy
duly filed should ... withdraw ... any voter qualified for the office may file his certificate of candidacy for the
office for which ... the candidate who has withdrawn ... was a candidate on or before midday of election ...
Clearly, Petitioner Villanueva could not have substituted for Candidate Mendoza on the strength of
Section 28 of the 1978 Election Code which he invokes, For one thing, Mendoza's withdrawal of his
certificate is not under oath, as required under Section 27 of the Code; hence it produces no legal effect.
For another, said withdrawal was made not after the last day (January 4, 1980) for filing certificates of
candidacy, as contemplated under Sec. 28 of the Code, but on that very same day.(Emphasis copies)
Upon a restudy of the case, the Court finds merit in the reconsideration prayed for, which would respect the will of the electorate
instead of defeating the same through the invocation of formal or technical defects. (De Guzman vs. Board of Canvassers, 48
Phil. 211 [1925], citing Lino Luna vs. Rodriguez, 39 Phil. 208 (1918) Badelles vs. Cabili 27 SCRA 121 [1969]; Yra vs. Abano 52
Phil. 380 [1928]; Canceran vs. Comelec, 107 Phil. 607 (1960) Corocoro vs. Bascara, 9 SCRA 522 [1963], Pungutan vs.
Abubakar, 43 SCRA 11 [19721; and Lacson, Jr. vs. Posadas 72 SCRA 170 [19761).
The Court holds that the Comelec's first ground for denying due course to petitioner's substitute certificate of candidacy, i.e. that
Mendoza's withdrawal of his certificate of candidacy was not "under oath," should be rejected. It is not seriously contended by
respondent nor by the Comelec that Mendoza's withdrawal was not an actual fact and a reality, so much so that no votes were
cast for him at all, In fact, Mendoza's name, even though his candidacy was filed on the last day within the deadline, was not in
the Comelec's certified list of candidates. Hisunsworn withdrawal filed later on the same day had been accepted by the election
registrar without protest nor objection, On the other hand, since there was no time to include petitioner's name in the Comelec list
of registered candidates, because the election was only four days away, petitioner as substitute candidate circularized formal
notices of his candidacy to all chairmen and members of the citizens election committees in compliance with the suggestion of
the Comelec Law Manager, Atty. Zoilo Gomez.
The fact that Mendoza's withdrawal was not sworn is but a technicality which should not be used to frustrate the people's will in
favor of petitioner as the substitute candidate. In Guzman us, Board of Canvassers, 48 Phil. 211, clearly applicable, mutatis
mutandis this Court held that "(T)he will of the people cannot be frustrated by a technicality that the certificate of candidacy had
not been properly sworn to, This legal provision is mandatory and non-compliance therewith before the election would be fatal to
the status of the candidate before the electorate, but after the people have expressed their will, the result of the election cannot
be defeated by the fact that the candidate has not sworn to his certificate or candidacy." (See also Gundan vs. Court of First
Instance, 66 Phil. 125). As likewise ruled by this Court in Canceran vs. Comelec, 107 Phil. 607, the legal requirement that a
withdrawal be under oath will be held to be merely directory and Mendoza's failure to observe the requirement should be
"considered a harmless irregularity."
As to the second ground, Mendoza's withdrawal of his certificate of candidacy right on the very same day that he filed his
certificate of candidacy on January 4, 1980 which was the very last day for filing of certificates of candidacy shows that he was
not serious about his certificate of candidacy. But this could not be done to would bebonafide candidates, like petitioner who had
not filed his candidacy in deference to Mendoza's candidacy who was one of his " co-planners " with "some concerned citizens ...
(who) held causes to put up a slate that will run against the erstwhile unopposed KBL slate."
The Comelec's post-election act of denying petitioner's substitute candidacy certainly does not seem to be in consonance with
the substance and spirit of the law. Section 28 of the 1978 Election Code provides for such substitute candidates in case of
death. withdrawal or disqualification up to mid-day of the very day of the elections. Mendoza's withdrawal was filed on the last
hour of the last day for regular filing of candidacies on January 4, 1980, which he had filed earlier that same day. For all intents
and purposes, such withdrawal should therefore be considered as having been made substantially and in truth after the last day,
even going by the literal reading of the provision by the Comelec. Indeed, the statement of former Chief Justice Enrique M.
Fernando in his dissent that "the bona fides of petitioner Crisologo Villanueva y Paredes as a substitute candidate cannot, (in his
opinion), be successfully assailed. It follows that the votes cast in his favor must be counted. Such being the case, there is more
than sufficient justification for his proclamation as Vice Mayor...
ACCORDINGLY, the Court SETS ASIDE the questioned Resolutions of respondent Comelec and annuls the proclamation of
respondent Lirio as elected
vice-mayor of Dolores, Quezon and instead declares petitioner as the duly elected vice-mayor of said municipality and entitled
forthwith to assume said office, take the oath of office and discharge its functions. This resolution is IMMEDIATELY
EXECUTORY. SO ORDERED.
Concepcion, Jr, Abad Santos, Plana, Escolin, Gutierrez, Jr., De la Fuente, Cuevas, Alampay and Patajo, JJ., concur.
Melencio-Herrera and Relova, JJ., on leave.


Separate Opinions

AQUINO, C.J ., dissenting:
Vivencio G. Lirio of the Kilusang Bagong Lipunan was the candidate for vice mayor of Dolores, Quezon Province in the election
held on January 30, 1980.
The other candidate for vice mayor was Narciso L. Mendoza, Jr., who filed as certificate of candidacy on January 4, 1980, the
last day for filing certificates of candidacy. But at 7:27 in the evening of that day, Mendoza withdrew his candidacy by means of a
handwritten letter of withdrawal which was not under oath. He handed that letter to the election registrar of Dolores.
Five days before the election or on January 25, 1980, Crisologo Villanueva filed his certificate of candidacy for vice mayor in
substitution for Mendoza. On January 26 the election registrar transmitted Villanueva's certificate of candidacy and Mendoza's
withdrawal letter to the provincial election registrar who, in turn, indorsed the same to the Commission on Elections. These
papers were received by the Comelec Law Department only on February 11, 1980 or after the election and after the proclamation
of Lirio as the duly elected vice mayor.
Villanueva's name was not included in the official list of candidates. However, on the eve of the election or on January 29, he
addressed a letter to all chairmen and members of the board of election inspectors of Dolores wherein he informed them of his
candidacy in substitution for Mendoza. He requested them to count the votes cast in his favor.
The municipal election registrar asked the provincial election registrar to clarify the status of Villanueva's candidacy. On election
day, the provincial election registrar replied that since Villanueva's name was not included in the official list of candidates it could
be legally presumed that the Comelec did not approve his certificate of candidacy.
On January 31, 1980 the municipal board of canvassers proclaimed Lirio as the duly elected vice mayor. The votes cast for
Villanueva were not counted because he was not an official candidate. They were regarded as stray votes. It cannot be assumed
that he received 3,112 votes as against 2,600 votes for Lirio.
Villanueva filed a petition to annul Lirio's proclamation. The Comelec dismissed it on the grounds (1) that Mendoza's withdrawal
had no legal effect because it was not under oath as required in section 27 of the Election Code and (2) that even assuming that
it was effective, Villanueva's substitute candidacy was not valid under section 28 of the Election Code since Mendoza did not
withdraw after January 4 but on that very day.
Any votes cast for Villanueva were stray votes under section 155 (15) of the Election Code. It cannot be said that Villanueva
obtained more votes than Lirio, a reelectionist.
It is dangerous to rely on the so-called spirit of the law which we cannot see nor handle and which we do not know very much.
The Comelec resolution was affirmed by this Court. Villanueva filed a motion for reconsideration. I vote to deny said motion.


Separate Opinions
AQUINO, C.J ., dissenting:
Vivencio G. Lirio of the Kilusang Bagong Lipunan was the candidate for vice mayor of Dolores, Quezon Province in the election
held on January 30, 1980.
The other candidate for vice mayor was Narciso L. Mendoza, Jr., who filed as certificate of candidacy on January 4, 1980, the
last day for filing certificates of candidacy. But at 7:27 in the evening of that day, Mendoza withdrew his candidacy by means of a
handwritten letter of withdrawal which was not under oath. He handed that letter to the election registrar of Dolores.
Five days before the election or on January 25, 1980, Crisologo Villanueva filed his certificate of candidacy for vice mayor in
substitution for Mendoza. On January 26 the election registrar transmitted Villanueva's certificate of candidacy and Mendoza's
withdrawal letter to the provincial election registrar who, in turn, indorsed the same to the Commission on Elections. These
papers were received by the Comelec Law Department only on February 11, 1980 or after the election and after the proclamation
of Lirio as the duly elected vice mayor.
Villanueva's name was not included in the official list of candidates. However, on the eve of the election or on January 29, he
addressed a letter to all chairmen and members of the board of election inspectors of Dolores wherein he informed them of his
candidacy in substitution for Mendoza. He requested them to count the votes cast in his favor.
The municipal election registrar asked the provincial election registrar to clarify the status of Villanueva's candidacy. On election
day, the provincial election registrar replied that since Villanueva's name was not included in the official list of candidates it could
be legally presumed that the Comelec did not approve his certificate of candidacy.
On January 31, 1980 the municipal board of canvassers proclaimed Lirio as the duly elected vice mayor. The votes cast for
Villanueva were not counted because he was not an official candidate. They were regarded as stray votes. It cannot be assumed
that he received 3,112 votes as against 2,600 votes for Lirio.
Villanueva filed a petition to annul Lirio's proclamation. The Comelec dismissed it on the grounds (1) that Mendoza's withdrawal
had no legal effect because it was not under oath as required in section 27 of the Election Code and (2) that even assuming that
it was effective, Villanueva's substitute candidacy was not valid under section 28 of the Election Code since Mendoza did not
withdraw after January 4 but on that very day.
Any votes cast for Villanueva were stray votes under section 155 (15) of the Election Code. It cannot be said that Villanueva
obtained more votes than Lirio, a reelectionist.
It is dangerous to rely on the so-called spirit of the law which we cannot see nor handle and which we do not know very much.
The Comelec resolution was affirmed by this Court. Villanueva filed a motion for reconsideration. I vote to deny said motion.
Footnotes
1 Reported in 122 SCRA 636.

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EN BANC
[G.R. No. 147741. May 10, 2001]
REP. MA. CATALINA L. GO, petitioner, vs. COMMISSION ON
ELECTIONS, FELIPE V. MONTEJO and ARVIN V.
ANTONI, respondents.
D E C I S I O N
PARDO, J .:
The Case
In her petition for certiorari,
[1]
petitioner seeks to nullify the resolution of the Commission
on Elections (COMELEC) en banc declaring her disqualified to run for the office of governor of
Leyte and mayor of Baybay, Leyte, because she filed certificates of candidacy for both positions
and the withdrawal of her certificate of candidacy for mayor was filed late by twenty eight minutes
from the deadline.
Forthwith, we issued an order
[2]
to maintain the status quo ante, in effect allowing
petitioners certificate of candidacy for governor in the meantime.
In its Comment,
[3]
the COMELEC justified its resolution on the ground that petitioners
affidavit of withdrawal of her certificate of candidacy for mayor of Baybay, Leyte was
ineffectual because it was submitted twenty eight (28) minutes late at the office of the municipal
election officer at Baybay. The facsimile copy thereof was filed with said office at 12:28 a.m., 1
March 2001, and the original copy thereof was actually received by the office of the municipal
election officer of Baybay at 1:15 p.m., the same day. The provincial election supervisor of
Leyte, with office at Tacloban City, to whom petitioner filed her certificate of candidacy for
governor at 11:47 p.m., 28 February 2001, refused to accept the affidavit of withdrawal tendered
simultaneously therewith because, as he claimed, the affidavit must be filed with the office of the
municipal election officer of Baybay, Leyte where petitioner filed her certificate of candidacy for
mayor.
The Facts
Petitioner is the incumbent representative of the Fifth District, province of Leyte, whose
term of office will expire at noon on 30 June 2001.
On 27 February 2001, petitioner filed with the municipal election officer of the municipality
of Baybay, Leyte, a certificate of candidacy for mayor of Baybay, Leyte.
On 28 February 2001, at 11:47 p.m., petitioner filed with the provincial election supervisor
of Leyte, with office at Tacloban City, another certificate of candidacy for governor of the
province of Leyte. Simultaneously therewith, she attempted to file with the provincial election
supervisor an affidavit of withdrawal of her candidacy for mayor of the municipality of Baybay,
Leyte. However, the provincial election supervisor of Leyte refused to accept the affidavit of
withdrawal and suggested that, pursuant to a COMELEC resolution, she should file it with the
municipal election officer of Baybay, Leyte where she filed her certificate of candidacy for
mayor.
At that late hour, with only minutes left to midnight, the deadline for filing certificates of
candidacy or withdrawal thereof, and considering that the travel time from Tacloban to Baybay
was two (2) hours, petitioner decided to send her affidavit of withdrawal by fax
[4]
to her father at
Baybay, Leyte and the latter submitted the same to the office of the lection officer of Baybay,
Leyte at 12:28 a.m., 01 March 2001.
[5]
On the same day, at 1:15 p.m., the election officer of
Baybay, Leyte, received the original of the affidavit of withdrawal.
[6]

On 05 March 2001, respondent Montejo filed with the provincial election supervisor of
Leyte, at Tacloban City a petition to deny due course and/or to cancel the certificates of
candidacy of petitioner.
[7]
Respondent Antoni filed a similar petition to disqualify
petitioner.
[8]
The petitions were based on the ground that petitioner filed certificates of candidacy
for two positions, namely, that for mayor of Baybay, Leyte, and that for governor of Leyte, thus,
making her ineligible for both.
On 06 March 2001, Atty. Manuel L. Villegas, the provincial election supervisor of Leyte, by
1
st
indorsement, referred the cases to the Commission on Election, Manila, Law Department, on
the ground that he was inhibiting himself due to his prior action of refusing to receive the
petitioners affidavit of withdrawal tendered simultaneously with the filing of the certificate of
candidacy for governor on 28 February 2001.
[9]

In the meantime, the Law Department, COMELEC, under Director Jose P. Balbuena, made
a study of the cases without affording petitioner an opportunity to be heard or to submit
responsive pleadings. On 05 April 2001, they submitted a report and recommendation to the
COMELEC en banc.
[10]

The report and recommendation reads:
Submitted for due consideration is the petition filed by Atty. Felipe V. Montejo and
Atty. Arvin V. Antoni on March 5, 2001, before the Office of the Provincial Election
Supervisor of Leyte, seeking to deny due course and/or to cancel the certificate of
candidacy of Catalina L. Go for Governor of Leyte.
Both petitions which are exactly worded in the same language allege, as follows:
This petition is heretofore filed pursuant to the provisions of Rule 23 of the
COMELEC RULES OF PROCEDURE and Section 15, as well, of RESOLUTION
NO. 3253-A of the COMELEC EN BANC promulgated on November 20,
2000. Ditto, this petition is filed within the reglementary period following the last day
for the filing of certificates of candidacy on February 28, 2001.
Petitioner Atty. Felipe V. Montejo is of voting age, Filipino, Lawyer by profession,
married, and a resident of #50 Juan Luna Street, Tacloban City, of which locality he is
a registered voter.
Respondent re. Catalina L. Go, on the other hand is likewise of legal age, married,
resident of Baybay, Leyte, of which locality she is a registered voter, and the
incumbent Member of the House of Representatives representing the 5th
Congressional District of Leyte.
Respondent CATALINA L. GO filed a certificate of candidacy for the office of
Mayor of the Municipality of Baybay, Leyte on February 27, 2001. Without
cancelling or withdrawing the said certificate of candidacy this time for the office of
Provincial Governor of Leyte on February 28, 2001. However, before the expiration
of the period for the filing of certificates of candidacy, respondent indubitably failed
to declare under oath the office for which she desires to be eligible and cancel the
certificate of candidacy for the other office.
'Verily, at the time respondent filed her certificate of candidacy for Provincial
Governor, she knew fully well that she was ineligible for the said office, having filed,
a day earlier, a certificate of candidacy for Mayor of Baybay, Leyte. Hence,
respondent falsely represented in her certificate of candidacy for Provincial Governor,
and under oath, that she is ELIGIBLE for the said office; a material fact required by
law to be sworn to and contained in certificates of candidacy. In fine, respondent
likewise falsely represented in her certificates of candidacy, under oath, that she will
OBEY THE LAWS, ORDERS, DECRESS, RESOLUTIONS AND REGULATIONS
PROMULGATED AND ISSUED BY THE DULY CONSTITUTED
AUTHORITIES; a material fact required by law to be sworn to and contained in
certificates of candidacy.
"Petitioners' ground to deny due course and/or to cancel the said certificate of
candidacy is anchored on Section 73 of the Omnibus Election Code, quoted
hereunder.
'No person shall be eligible for any elective public office unless he files a sworn
certificate of candidacy within the period fixed herein.
'No person shall be eligible for more than one office to be filled in the same election,
and if he files his certificate of candidacy for more than one office, he shall not be
eligible for any of them. However, before the expiration of the period for the filing
of certificates of candidacy, the person who has filed more than one certificate of
candidacy may declare under oath the office for which he desires to be eligible and
cancel the certificate of candidacy for the other office or offices.
"In relation to Section (1) (b) of the Comelec Resolution No. 3253-A, to wit:
'SECTION 1. Certificate of Candidacy. x x x x x (b) No person shall be eligible for
more than one office to be filled in the same election. If he files a certificate of
candidacy for more than one office he shall not be eligible for either. However,
before the expiration of the period for the filing of certificate of candidacy, he may
declare under oath the office for which he desire to be eligible and cancel the
certificate of candidacy for the office or offices.'
"Moreover, petitioners contended that CATALINA LOPEZ LORETO-GO is
ineligible to run for either Mayor of Baybay, Leyte or Governor of Leyte Province.
"Based on the certified list of candidate for the provincial candidates of Leyte on
March 7, 2001, the certificate of candidacy of Catalina Lopez Loreto-Go for the
position of Governor of Leyte was filed with the Office of the Provincial Election
Supervisor on February 28, 2001 at 11:47 p.m. the last day for filing certificates of
candidacy.
"In support of the petitions of Atty. Montejo and Atty. Antoni, is a certified machine
copy of the affidavit of withdrawal of Catalina L. Loreto-Go, which was filed on
March 01, 2001 at the Office of the Election Officer of Baybay, Leyte, which she filed
on February 28, 2001.
"The affidavit of withdrawal of Catalina Loreto-Go, a portion of which reads:
"1. That last February 27, 2001 I filed my certificate of candidacy for Mayor for the
MUNICIPALITY OF BAYBAY, LEYTE;
"2. That due to political exigency and influence from my political leaders urging me
to run for Mayor of the Municipality of Baybay, Leyte, I have no other recourse but to
follow desire of my political constituents;
"3. That therefore, I am formally withdrawing my certificate of candidacy for Mayor
of the Municipality of Baybay, Leyte and in it stead I am formally filing my certificate
for Governor of Leyte.
"A careful scrutiny and examination of Catalina Loreto-Go certificate of candidacy
for Governor of Leyte Province, although filed on the last day of February 28, 2001,
her affidavit of withdrawal for Mayor of Baybay, Leyte, was filed only on March
1,2001 or one (1) day after the February 28, 2001 deadline. In other word, there are
two (2) certificates of candidacy filed by Catalina Loreto-Go, one for governor of
Leyte and the other for Mayor of Baybay, Leyte.
"Clearly, on March 1, 2001 when she filed her affidavit of withdrawal for Mayor of
Baybay, Leyte, both her certificates of candidacy for Mayor of Baybay, Leyte and
Governor of Leyte were still subsisting and effective making her liable for filing two
certificates of candidacy on different elective positions, thus, rendering her ineligible
for both positions, in accordance with Section (1) (b) of Comelec Resolution No.
3253-A.
"PREMISES CONSIDERED, the Law Department RECOMMENDS as follows:
"1.) To give due course to the petition of Atty. Felipe V. Montejo and Atty. Arvin V.
Antonio against the certificates of candidacy of Catalina Loreto-Go for Governor of
Leyte; and
"2.) To direct the Provincial Election Supervisor of Leyte and the Election Officer to
delete/cancel the name of CATALINA LOPEZ LORETO-GO from the certified list
of candidates for Governor of Leyte and Mayoralty candidates of Baybay, Leyte, and
to accordingly notify the parties and the above-named Comelec Officials."
[11]

On 23 April 2001, the COMELEC en banc approved the recommendation of the Director,
Law Department and adopted the resolution in question as set out in the opening paragraph of
this decision.
[12]

Hence, this petition.
[13]

The Issues
At the oral argument on 07 May 2001, at 3:00 p.m., we defined the following issues to be
addressed by the parties:
I. Is petitioner disqualified to be candidate for governor of Leyte and mayor of Baybay, Leyte
because she filed certificates of candidacy for both positions?
II. Was there a valid withdrawal of the certificate of candidacy for municipal mayor of Baybay,
Leyte?
(a) Must the affidavit of withdrawal be filed with the election officer of the
place where the certificate of candidacy was filed?
(b) May the affidavit of withdrawal be validly filed by fax?
II. Was there denial to petitioner of procedural due process of law?
The Court's Ruling
We grant the petition. We annul the COMELEC resolution declaring petitioner disqualified
for both positions of governor of Leyte and mayor of the municipality of Baybay, Leyte. The
filing of the affidavit of withdrawal with the election officer of Baybay, Leyte, at 12:28 a.m., 1
March 2001 was a substantial compliance with the requirement of the law.
[14]

We hold that petitioner's withdrawal of her certificate of candidacy for mayor of Baybay,
Leyte was effective for all legal purposes, and left in full force her certificate of candidacy for
governor.
[15]

Section 73, Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code,
provides that:
"SEC. 73. Certificate of candidacy.- No person shall be eligible for any elective
public office unless he files a sworn certificate of candidacy within the period fixed
herein.
"A person who has filed a certificate of candidacy may, prior to the election,
withdraw the same by submitting to the office concerned a written declaration under
oath.
"No person shall be eligible for more than one office to be filled in the same election,
and if he files his certificate of candidacy for more than one office, he shall not be
eligible for any of them. However, before the expiration of the period for the filing
of certificates of candidacy, the person who has filed more than one certificate of
candidacy may declare under oath the office for which he desires to be eligible
and cancel the certificate of candidacy for the other office or offices."
There is nothing in this Section which mandates that the affidavit of withdrawal must be
filed with the same office where the certificate of candidacy to be withdrawn was filed. Thus, it
can be filed directly with the main office of the COMELEC, the office of the regional election
director concerned, the office of the provincial election supervisor of the province to which the
municipality involved belongs, or the office of the municipal election officer of the said
municipality.
While it may be true that Section 12 of COMELEC Resolution No. 3253-A, adopted on 20
November 2000, requires that the withdrawal be filed before the election officer of the place
where the certificate of candidacy was filed,
[16]
such requirement is merely directory, and is
intended for convenience. It is not mandatory or jurisdictional. An administrative resolution can
not contradict, much less amend or repeal a law, or supply a deficiency in the law.
[17]
Hence, the
filing of petitioner's affidavit of withdrawal of candidacy for mayor of Baybay with the
provincial election supervisor of Leyte sufficed to effectively withdraw such candidacy. The
COMELEC thus acted with grave abuse of discretion when it declared petitioner ineligible for
both positions for which she filed certificates of candidacy.
There is another important moiety that affects the validity of the COMELEC resolution
canceling petitioner's certificates of candidacy. It is that petitioner was deprived of procedural
due process of law.
[18]
The petition to cancel her certificate of candidacy or to deny due course to
both were filed before the provincial election supervisor of Leyte who inhibited himself and
referred the cases to the Law Department, COMELEC, Manila. On 11 April 2001, the
COMELEC, First Division, acting on the first indorsement of Atty. Villegas approved his
inhibition and required the provincial election supervisor of Leyte to immediately forward his
copy of the records of these cases to the Regional Election Director, Region 08, at Tacloban,
Leyte, for hearing.
[19]
On 18 April 2001, Regional Election Director, Region 08, Atty. Adolfo A.
Ibaez issued summons/subpoena to petitioner Go to submit her consolidated answer to the
petitions and counter affidavits including position paper within three (3) days from notice.
[20]
On
23 April 2001, petitioner submitted her consolidated position paper.
[21]
On 25 April 2001, at 9:00
a.m., Director Ibaez set the cases for hearing for reception of evidence of the parties.
In the meantime, however, the Law Department, COMELEC conducted an ex-parte study of
the cases. It did not give petitioner an opportunity to be heard. Petitioner was not required to
submit a comment or opposition to the petitions for cancellation of her certificates of candidacy
and/or for disqualification. It did not set the cases for hearing. It was not even aware of the
proceedings before Director Ibanez in Tacloban. After an ex-parte study of the cases, on 05 April
2001, the Law Department submitted its report and recommendation, approved by Director
Balbuena, to the COMELEC en banc.
During the oral argument on 07 May 2001, Director Balbuena candidly admitted that the
COMELEC Rules of Procedure requires that notice be given to the respondent. Indeed, Section
3, Rule 23 of said Rules on petition to deny due course to or cancel certificates of candidacy
explicitly provides:
"Rule 23 - Petition to Deny Due Course to or Cancel Certificates of Candidacy
"x x x x
"Sec. 3. Summary Proceeding. - The petition shall be heard summarily after due
notice. (emphasis supplied)
Obviously, the COMELEC en banc in approving the report and recommendation of the Law
Department, deprived the petitioner of procedural due process of law.
[22]
The COMELEC, acting
as a quasi-judicial tribunal, cannot ignore the requirements of procedural due process in
resolving cases before it.
[23]

WHEREFORE, the Court GRANTS the petition. The Court ANNULS COMELEC
Resolution No. 3982, adopted on 23 April 2001, and DECLARES valid petitioner's certificate of
candidacy for Governor of Leyte. The Chairman, Commision on Elections, Manila, and the
provincial election supervisor of Leyte shall immediately order the inclusion of petitioner's name
in the certified list of candidates for Governor, province of Leyte, to be posted in each polling
place/voting booth in every precinct throughout the province of Leyte, in the voters information
sheet to be given to each registered voter therein, in the election returns, statement of votes by
precincts, and certificate of canvass, and all other election papers.
The status quo ante order heretofore issued is made permanent.
This decision is immediately executory. No motion for reconsideration shall be entertained.
No costs.
SO ORDERED.
Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Gonzaga-Reyes, De Leon,
Jr., and Sandoval-Gutierrez, JJ., concur.
Davide, Jr., C.J., and Mendoza, J., in the result.
Quisumbing, and Buena, JJ., on leave.
Ynares-Santiago, J., abroad on official time.



[1]
Filed on 27 April 2001, Rollo, pp. 3-18, under Rule 64 in relation to Rule 65, 1997 Rules of Civil Procedure, as
amended.
[2]
Issued on 2 May 2001, Rollo, pp. 61-62.
[3]
Filed on 04 May 2001, Rollo, pp. 103-112.
[4]
The municipal election officer, Baybay, Leyte, had no fax machine (Certification, Rollo, p. 146). With the
enactment of the E-Commerce Law, transmission by fax may be legal. R.A. No. 8792.
[5]
Manifestation/Compliance, Annex A, par. 5, Rollo, pp. 149-150, at p. 149.
[6]
Affidavit, Rollo, pp. 126, 151.
[7]
Petition, Annex A, Rollo, pp. 19-21.
[8]
Petition, Annex B, Rollo, pp. 22-24.
[9]
Petition, Annex "C", Rollo, pp. 25-26.
[10]
Agenda, Law Department, Rollo, pp. 114-117.
[11]
Petition, Annex I, Rollo, pp. 56-60, at pp. 56-59.
[12]
Petition, Annexes H and I, Rollo, pp. 51-60.
[13]
Filed on 27 April 2001. Rollo, pp. 3-18. On 2 May 2001, we required respondents to file comment on the
petition, not a motion to dismiss, not later than 4 May 2001, Rollo, pp. 61-62. We now give due course to petition.
[14]
Montinola v. Commission on Elections, 98 Phil. 220 [1956].
[15]
Ibid., at p. 223.
[16]
Comelec Resolution No. 3253-A, Sec. 12, promulgated on 20 November 2000.
[17]
Cf. Palanca v. Court of Appeals, 238 SCRA 593 [1994].
[18]
Off-quoted definition of Webster is that procedural due process requires a law that hears before it condemns,
proceeds upon inquiry, and renders judgment only after trial (Flores v. Buencamino, 74 SCRA 332 [1976];
Lorenzana v. Cayetano, 78 SCRA 485 [1977]; Loquias v. Rodriquez, 65 SCRA 659 [1975]; Romero v. Court of
Appeals, 147 SCRA 183 [1987]).
[19]
Order, dated 11 April 2001, Rollo, pp. 38-40.
[20]
Petition, Annex F, Rollo, p. 41.
Synopsis/Syllabi
EN BANC
[G.R. No. 135691. September 27, 1999]
EMMANUEL SINACA, petitioner, vs. MIGUEL MULA and COMMISSION
ON ELECTIONS, respondents.
D E C I S I O N
DAVIDE, JR., C.J .:
Before us is a special civil action for certiorari, mandamus and prohibition, with a prayer for
preliminary injunction and/or temporary restraining order assailing the Resolution of 6 October
1998, of respondent Commission on Elections (hereafter COMELEC) in SPA No. 98-292,
declaring as invalid the substitution of mayoralty candidate Teodoro F. Sinaca, Jr. by herein
petitioner Emmanuel D. Sinaca.
[1]

The records disclose that in the 11 May 1998 elections, the two opposing factions of the
ruling party LAKAS-NUCD-UMPD (hereafter LAKAS) filled in separate candidates for the
position of mayor of the Municipality of Malimano, Surigao del Norte. One faction headed by
Robert Z. Barbers (hereafter BARBERS Wing) nominated Grachil G. Canoy (hereafter
CANOY), while the other group lead by Francisco T. MATUGAS (hereafter MATUGAS
Wing) endorsed the candidacy of Teodoro F. Sinaca, Jr. (hereafter TEODORO).
Miguel H. Mula (hereafter MULA), a candidate for vice-mayor and belonging to the
BARBERS Wing, filed before the COMELEC a petition for disqualification against
TEODORO which was docketed as SPA 98-021. On 8 May 1998, the Second Division of the
COMELEC issued a resolution disqualifying TEODORO as candidate for mayor of the
Municipality of Malimono, Surigao del Norte and ordering the cancellation of his certificate of
candidacy because of prior conviction of bigamy, a crime involving moral turpitude.
[2]

On 10 May 1998, TEODORO filed a motion for reconsideration of the aforesaid
resolution. On even date, herein petitioner Emmanuel D. Sinaca, (hereafter EMMANUEL), an
independent candidate, withdrew his certificate of candidacy for Sangguniang Bayan Member,
joined and became a member of the LAKAS party and was nominated by the LAKAS
MATUGAS Wing as the substitute mayoralty candidate for the Municipality of Malimono,
Surigao del Norte. On the basis of said nomination, EMMANUEL filed his certificate of
candidacy
[3]
attached thereto is his certificate of nomination as LAKAS mayoralty candidate
signed by Governor Francisco T. MATUGAS (hereafter MATUGAS), as party provincial
chairman together with EMMANUEls written acceptance of the partys nomination.
[4]

On 11 May 1998, MULA filed through mail another petition for disqualification, this time
against EMMANUEL, which was received by the COMELEC on 14 May 1998 and was
docketed as SPA No. 98-292. In his petition MULA contended that the nomination of
EMMANUEL as substitute candidate is illegal on the following grounds:
a) The substitute, before he filed his Certificate of Candidacy as LAKAS candidate, was an
independent candidate. Being so, he cannot rightfully substitute the disqualified one;
b) The nomination of respondent substitute bears only the approval of Provincial Chairman
Matugas and without consultation and consent of the higher political hierarchy especially
Mr. Robert Ace Barbers who has also a say on nomination of candidates within his
jurisdiction, as evidenced by an authority hereto attached as Annex E;
c) Substitution generally takes place when by reason of a candidates disqualification the party
to which he belongs loses such representation. In the instant case, the disqualification did
not at all prejudice LAKAS NUCD-UMDP because Mr. Garchil G. Canoy is still there
representing the party after the disqualification. The substitution is a redundancy and not
necessary under the circumstances, more so that it was done with malice and without the
required consensus of the political hierarchy.
[5]

In his answer, EMMANUEL moved for the dismissal of the petition for the following
reasons:
a) The petition does not state a cause of action as it is not based on any of the grounds for
disqualification as provided under Sec. 68 of the Omnibus Election Code and Sec. 40(A) of
the Local Government Code of 1991;
b) The issue of who in LAKAS has the authority to nominate candidates for local officials, is
an intra-party matter hence beyond the jurisdiction of the Comelec;
c) Gov. Matugas was duly authorized by LAKAS as its Provincial Chairman and official
candidate for Provincial Governor to nominate the partys local candidates; and
d) The petition is already moot and academic because of the proclamation of EMMANUEL as
mayor of the Municipality of Malimono, Surigao del Norte.
[6]

On 28 May 1998, the COMELEC Second Division dismissed the petition for
disqualification and upheld the candidacy for mayor of EMMANUEL.
[7]
The pertinent part of
the resolution reads:
It is therefore clear, that candidate for governor Matugas was clothed with the
authority to nominate the respondent as substitute candidate for the position of mayor
of Malimono, Surigao del Norte, vice the disqualified candidate, Apropos thereto,
Section 77 of the Omnibus Election Code states:
x x x
Considering that on May 10, 1998 the proper nomination was issued by the official of
the party authorized therefor, it stands to reason that the substitution was valid,
respondent having accepted the nomination and his certificate of candidacy dated May
10, 1998, correspondingly filed.
Respondent is correct in stating that the question of nomination is a party concern
which is beyond the ambit of the Commission. What matters is, the candidate has
been certified as a party member and the nomination duly issued in his favor.
Be that as it may, the petition is rendered moot and academic by the proclamation of
respondent on May 12, 1998, as evidenced by the certificate of canvass and
proclamation of winning candidates for municipal offices with SN 16671298 and his
oath of office dated May 13, 1998, which forms part of the record of this case.
WHEREFORE, premises considered, the Commission (Second Division) RESOLVES
to DISMISS the instant petition for lack of merit.
MULA filed a motion for reconsideration raising in the main that the signature alone of
MATUGAS in the nomination was not sufficient because the partys authority to nominate was
given to both MATUGAS and Senator Robert S. Barbers (hereafter BARBERS), in their joint
capacity, and that the nomination of EMMANUEL is void since he was an independent
candidate prior to his nomination.
[8]

On 6 October 1998, the COMELEC en banc issued a Resolution
[9]
which set aside the
resolution dated 28 May 1998 of the Second Division and disqualified EMMANUEL, for the
following reasons:
In the motion for reconsideration, petitioner argues that the signature only of
Governor Matugas in the nomination was not sufficient because the partys authority
to nominate was given to both Governor Matugas and Senator Robert Barbers, in their
joint capacity.
We do not have to resolve this issue because the more important issue is whether
respondent is disqualified as a substitute candidate. He was an independent candidate
for councilor at the time he filed his certificate of candidacy for mayor as a substitute
of a disqualified candidate. Thus, he did not belong to the same political party as the
substituted candidate.
We sustain petitioners position. We declare that the substitution of disqualified
mayoralty candidate Teodoro F. Sinaca, Jr. by respondent Emmanuel D. Sinaca was
not valid because the latter was an independent candidate for councilor prior to his
nomination as substitute candidate in place of the withdrawing candidate who was a
Lakas party member.
IN VIEW WHEREOF, the Commission en banc hereby resolves to SET ASIDE the
Commission (Second Division)s resolution dated May 28, 1998. We declare
Emmanuel D. Sinaca DISQUALIFIED to be a substitute candidate for mayor of
Malimono, Surigao del Norte, and ANNUL his proclamation as such being void ab
initio. Upon finality of this resolution, he is ordered to vacate the position of mayor of
the municipality of Malimono, Surigao del Norte, to which the vice-mayor elected in
the May 11, 1998 elections shall succeed by operation of law.
Not satisfied therewith, EMMANUEL is now before us alleging that the COMELEC
committed grave abuse of discretion in issuing the assailed Resolution. EMMANUEL principally
contends that his nomination as a substitute candidate was regular and valid hence, his
proclamation as mayor of the Municipality of Malimono, Surigao del Norte must be upheld.
In the assailed resolution, the COMELEC disqualified EMMANUEL solely on the basis that
he was an independent candidate prior to his nomination as a substitute candidate.
The rule on substitution of an official candidate of a registered or accredited political party
who dies, withdraws or is disqualified for any cause after the last day for the filing of certificates
of candidacy is governed by Sec. 77 of the Omnibus Election Code which provides:
If after the last day for the filing of certificates of candidacy, an official candidate of a
registered or accredited political party dies, withdraws or is disqualified for any cause,
only a person belonging to, and certified by, the same political party may file a
certificate of candidacy to replace the candidate who died, withdrew or was
disqualified. The substitute candidate nominated by the political party concerned may
file his certificate of candidacy for the office affected in accordance with the
preceding sections not later than mid-day of the day of the election. If the death,
withdrawal or disqualification should occur between the day before the election and
mid-day of election day, said certificate maybe filed with any board of election
inspectors in the political subdivision where he is a candidate, or, in the case of
candidates to be voted for by the entire electorate of the country, with the
Commission.
Thus, under the said provision it is necessary, among others, that the substitute candidate
must be of the same political party as the original candidate and must be duly nominated as such
by the political party.
In the instant case, there was substantial compliance with the above said
requirements. EMMANUEL was properly nominated as substitute candidate by the LAKAS
party MATUGAS wing to which TEODORO, the disqualified candidate, belongs, as
evidenced by the Certificate of Nomination and Acceptance signed by MATUGAS, the Partys
provincial chairman.
[10]
That EMMANUEL is a bona fide member of the LAKAS party is shown
not only by the certificate of membership,
[11]
which is being controverted for having been
presented as new evidence for the first time before this court, but more importantly by his
certificate of candidacy filed before the COMELEC stating therein that he belongs to the
LAKAS party.
[12]

A certificate of candidacy is in the nature of a formal manifestation to the whole world of
the candidates political creed or lack of political creed.
[13]
It is a statement of a person seeking to
run for a public office certifying that he announces his candidacy for the office mentioned and
that he is eligible for the office, the name of the political party to which he belongs, if he belongs
to any, and his post-office address for all election purposes being as well stated.
[14]

The certificate of candidacy of EMMANUEL permitted the placing of his name before the
electorate. It constituted an authorized badge, which the voter could scrutinize before casting his
ballot. Thus, with the declaration of EMMANUEL in his certificate of candidacy that he is
affiliated with the LAKAS party, he was effectively voted by the electorate not as an
independent candidate, but as a member of the LAKAS party. His allegation in the certificate of
candidacy as to political party to which he belongs is sufficient to make the electorate conscious
of the platform of the said political party.
[15]

The fact that EMMANUEL was an independent candidate prior to his nomination is
immaterial. What is more significant is that he had previously withdrawn his certificate of
candidacy as independent candidate for Sangguniang member before he filed his certificate of
candidacy as a substitute for TEODORO at which time he was, for all intents and purposes,
already deemed a member of the LAKAS party MATUGAS wing. As such, EMMANUEL is
obliged to pursue and carry out the partys ideology, political ideas and platforms of
government. As the official candidate of an organized political party, he is bound by the partys
rule. He owes loyalty to the party, its tenet and its policies, its platforms and programs of
government. To the electorate he represents the party, its principles, ideals and objectives.
[16]

Even the fact that EMMANUEL only became a member of the LAKAS party after the
disqualification of TEODORO, will not affect the validity of the substitution. There is nothing
in the Constitution or the statute which requires as a condition precedent that a substitute
candidate must have been a member of the party concerned for a certain period of time before he
can be nominated as such. Section 77 of the Omnibus Election Code only mandates that a
substitute candidate should be a person belonging to and certified by the same political party as
the candidate to be replaced. We cannot provide for an additional requirement or condition not
provided under the said provision without encroaching into the domain of the legislative
department.
As aptly observed by Commissioner Teresita Dy-Liacco Flores in her dissenting opinion, to
wit:
x x x. With due respect to the majority opinion, I find that at the time the substitute
candidate filed his certificate of candidacy for mayor and at the time of his election as
such, he was an independent candidate no more. He was, at that time, a nominee of
the LAKAS NUCD-UMDP Political Party. This fact is evidenced by the Certificate
of Nomination and Acceptance dated 10 May 1998 executed by the Provincial
Chairman of the said party of Surigao del Norte and by herein respondent. This
certificate presupposes that respondent is a bonafide member of the said party. To
rule that respondent was still an independent candidate and not a member of the
LAKAS NUCD-UMDP political party at the time of filing his certificate of candidacy
as a substitute candidate for mayor is to arrogate upon this Commission what would
have been the sole and exclusive prerogative of any political organization -- to
determine party membership and its nominees to elective positions. It is an accepted
fact that, in this country, politicians switch party affiliations more frequently than the
ebb and flow of the tides.
[17]

The argument advanced by private respondent MULA that MATUGAS has no authority to
nominate a candidate without the concurrence of BARBERS is devoid of merit.
Firstly, MATUGAS, was designated by the LAKAS National Headquarters through its
Deputy Secretary General and National Secretariat Executive Director Reynaldo L. Maclang, as
the party officer authorized to nominate, sign, attest under oath, and issue Certificates of
Nomination and Acceptance for the Partys official candidates for the positions of Board
Members, City Councilors, Municipal Mayors, Vice-mayors and councilors for the Province of
Surigao del Norte.
[18]

This authorization which was dated March 26, 1998 replaced and/or modified the former
authorization given by the party to both BARBERS and MATUGAS.
[19]
Both BARBERS and
MATUGAS were given separate and distinct authorizations when the mother of BARBERS ran
for governor against MATUGAS.
Secondly, there are only two official candidates for mayor of Malimono, Surigao del Norte,
namely TEODORO and CANOY,
[20]
both of whom are members of the LAKAS party but from
different factions. TEODORO was indorsed by the MATUGAS wing and CANOY by the
BARBERS Wing. The certificates of candidacy of these candidates were never questioned
despite the fact that they belong to the same political party and were separately and
independently endorsed by either BARBERS or MATUGAS. Therefore, if the absence of a joint
nomination is to be considered fatal to the validity of the certificate of candidacy of TEODORO
or CANOY, then there would in effect no candidates running for mayor in the Municipality of
Malimono, Surigao del Norte.
Verily, it stands to reason that with the disqualification of TEODORO, who is a member of
the LAKAS MATUGAS wing, the substitute must come from the same faction as the
candidate to be substituted and since it was MATUGAS who indorsed the nomination of
TEODORO, then MATUGAS nomination of EMMANUEL in substitution of TEODORO is
sufficient and in order.
There is also no irregularity in the act of EMMANUEL in joining a political party. The right
of individuals to form an association as guaranteed by the fundamental law includes the freedom
to associate or refrain from association.
[21]
No man is compelled by law to become a member of a
political party; or after having become such, to remain a member. He may join such a party for
whatever reason seems good to him, and may quit the party for any cause, good, bad, or
indifferent, or without cause.
[22]
The decision of a candidate on whether to run as an independent
candidate or to join a political party, group or aggrupation is left entirely to his discretion.
[23]

We also agree with the contention of EMMANUEL that the decision as to which member a
party shall nominate as its candidate is a party concern which is not cognizable by the courts.
A political party has the right to identify the people who constitute the association and to
select a standard bearer who best represents the partys ideologies and preference.
[24]
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.
[25]
Thus, the rule is that the determination of disputes as to party nominations
rests with the party, in the absence of statutes giving the courts jurisdiction.
[26]

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.
[27]
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 party affairs, including nominations, in such manner as party rules
may establish.
[28]

An election in which the voters have fully, fairly, and honestly expressed their will is not
invalid even though an improper method is followed in the nomination of candidates.
[29]
This is
because in determining the effect of a particular irregularity in a party nomination for office on
the result of the general election, the pivotal issue is whether the irregularity complained of has
prevented a full, fair, and free expression of the public will. Thus, in the absence of a statutory
provision to the contrary, an election may not even be invalidated by the fact that the nomination
of the successful candidate was brought about by fraud, and not in the manner prescribed by the
statute, provided it appears that noncompliance with the law did not prevent a fair and free
vote.
[30]

None of the situations adverted to above are obtaining in the case at bar as to warrant this
Courts intervention in ascertaining the propriety of EMMANUELs nomination as a substitute
candidate by the LAKAS MATUGAS wing.
Finally, the issue as to the validity of EMMANUELs nomination as substitute candidate has
been rendered moot and academic by his proclamation on May 12, 1998, by the Board of
Canvassers of Malimono as the duly elected municipal mayor and after he has assumed into
office. The fact that the nomination of a substitute lacks the signature of one of the authorized
signatory is but a technicality which cannot be used to frustrate the will of the electorate.
It has been held that the provisions of the election law regarding certificates of candidacy,
such as signing and swearing on the same, as well as the information required to be stated
therein, are considered mandatory prior to the elections. Thereafter, they are regarded as merely
directory. With respect to election laws, it is an established rule of interpretation that mandatory
provisions requiring certain steps before election will be construed as directory after the
elections, to give effect to the will of the electorate. Thus, even if the certificate of candidacy
was not duly signed or if it does not contain the required data, the proclamation of the candidate
as winner may not be nullified on such ground. The defects in the certificate should have been
questioned before the election; they may not be questioned after the election without invalidating
the will of the electorate, which should not be done.
[31]
In Guzman v. Board of Canvassers,
[32]
the
Court held that the will of the people cannot be frustrated by a technicality that the certificate of
candidacy had not been properly sworn to. This legal provision is mandatory and non-
compliance therewith before the election would be fatal to the status of the candidate before the
electorate, but after the people have expressed their will, the result of the election cannot be
defeated by the fact that the candidate has not sworn to his certificate of candidacy.
Thus, were a candidate has received popular mandate, overwhelmingly and clearly
expressed, all possible doubts should be resolved in favor of the candidates eligibility for to rule
otherwise is to defeat the will of the people.
[33]
Above and beyond all, the determination of the
true will of the electorate should be paramount. It is their voice, not ours or of anyone else, that
must prevail. This, in essence, is the democracy we continue to hold sacred.
[34]

WHEREFORE, the petition is GRANTED. The assailed resolution of 6 October 1998 of
the COMELEC en banc is hereby REVERSED and SET ASIDE and another one rendered
declaring EMMANUEL SINACA as having been duly elected mayor of the Municipality of
Malimono, Surigao del Norte.
SO ORDERED.
Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima,
Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.
Pardo, J., no part. was Comelec Chair.



[1]

Annex O, Rollo 87-89.
[2]

Per Guiani, J., Comm., with Desamito, J., Pres. Comm. and Calderon, A., Comm., concurring. Annex
A, Rollo, 31-32.
[3]

Annex C, Id., 34.
[4]

Annex B, Id., 33.
[5]

Annex J, Rollo, 60-62.
[6]

Annex K, Id., 63-65.
[7]

Annex M, Rollo, 77-80. Per Desamito, J., Pres. Comm., with Guiani, J. and Calderon, A., Comms., concurring.
[8]

Annex N, Id., 81-85.
[9]

Supra note 1, with Commissioner Teresita Dy-Liacco Flores, dissenting.
[10]

Supra note 4.
[11]

Annex Q; Rollo, 90.
[12]

Supra note 3.
[13]

Papa v. Municipal Board of Manila, et al., 47 Phil. 694 [1925].
[14]

Ruperto G. Martin, The Revised Election Code with Annotations 41 (First Edition).
[15]

See supra note 13, at 702.
[16]

See Peralta v. COMELEC, 82 SCRA 30, 57 [1978].
[17]

Rollo, 112-113.
[18]

Annex P, Rollo, 89.
[19]

Dated 20 March 1998, Annex 1; Rollo, 66.
[20]

AnnexC; Rollo, 74.
[21]

Emerson, Freedom of Association, 74 Yale Law Journal,1, 4 [1964] as cited in the case of
Peralta v. Comelec, supra note 16.
[22]

Peralta v. COMELEC, ibid., citing 25 Am Jur. 2
nd
800.
[23]

Ibid., 56.
[24]

See 26 Am Jur 2d, Elections 255, 67.
[25]

Nielsen v. Kezer, 232 Conn 65, 652 A2d 1013.
[26]

Hunt v. Superior Court, 64 Ariz 325, 170 P2d 293. See also ONiel v OConnell, 300 Ky 707, 189 Sw2d 965,
169 ALR 1271, holding that courts have no power in the absence of a statute conferring jurisdiction to interfere with
operations of a political party.
[27]

25 Am Jur 2d, Elections 205, 982.
[28]

Tucker v. State Board of Alcoholic Control, 240 NC 177, 81 SE 2d 399; Brewster v. Massey (Tex Civ App) 232
SW2d 678, mand overr.
[29]

Howell v. Bain, 176 Or 187, 156 P2d 576.
[30]

Hooper v. Almand, 196 Ga 52, 25 SE2d 778.
[31]

Lambanao v. Terro, 15 SCRA 716 [1965]; Callado v. Alonzo, 15 SCRA 562 [1965]; See Villanueva v.
COMELEC, 140 SCRA 352 [1985].
[32]

48 Phil. 211 [1925].
[33]

Jaime Opinion and Ruben Agpalo, The Law on Elections 57 (1987 ed.); See also Avelino v. Rosales, 48 O.G.
No. 12, 5309 [6 Sept. 1952].
[34]

Mentang v. COMELEC, 229 SCRA 667 [1994].
EN BANC
[G.R. No. 154198. January 20, 2003]
PETRONILA S. RULLODA, petitioner, vs. COMMISSION ON
ELECTIONS (COMELEC), ELECTION OFFICER LUDIVICO L.
ASUNCION OF SANJACINTO, PANGASINAN; BARANGAY
BOARD OF CANVASSERS OF BRGY. STO. TOMAS, SAN
JACINTO, PANGASINAN, Board of Election Tellers of Prec. Nos.
30A/30A1, 31A, 31A1, and 32A1, and REMEGIO
PLACIDO, respondents.
D E C I S I O N
YNARES-SANTIAGO, J .:
In the barangay elections of July 15, 2002, Romeo N. Rulloda and Remegio L.
Placido were the contending candidates for Barangay Chairman of Sto. Tomas, San
Jacinto, Pangasinan. On June 22, 2002, Romeo suffered a heart attack and passed
away at the Mandaluyong City Medical Center.
[1]

His widow, petitioner Petronila Betty Rulloda, wrote a letter to the Commission on
Elections on June 25, 2002 seeking permission to run as candidate for Barangay
Chairman of Sto. Tomas in lieu of her late husband.
[2]
Petitioners request was
supported by the Appeal-Petition containing several signatures of people purporting to
be members of the electorate of Barangay Sto. Tomas.
[3]

On July 14, 2002, Election Officer Ludivico L. Asuncion issued a directive to the
Chairman and Members of the Barangay Board of Canvassers of Sto. Tomas as
follows:
Just in case the names BETTY or PETRONILA or the surname RULLODA is
written on the ballot, read the same as it is written but add the words NOT
COUNTED like BETTY NOT COUNTED or RULLODA NOT COUNTED.
[4]

Based on the tally of petitioners watchers who were allowed to witness the canvass
of votes during the July 15, 2002 elections, petitioner garnered 516 votes while
respondent Remegio Placido received 290 votes.
[5]
Despite this, the Board of
Canvassers proclaimed Placido as the Barangay Chairman of Sto. Tomas.
[6]

After the elections, petitioner learned that the COMELEC, acting on the separate
requests of Andres Perez Manalaysay and Petronila Rulloda to be substituted as
candidates for Barangay Chairman of Barangay La Fuente, Sta. Rosa, Nueva Ecija and
Barangay Sto. Tomas, San Jacinto, Pangasinan, respectively, issued Resolution No.
5217 dated July 13, 2002 which states:
PREMISES CONSIDERED, the Commission RESOLVED, as it hereby RESOLVES,
to ADOPT the recommendation of the Law Department as follows:
1. To deny due course the Certificates of Candidacy of ANDRES PEREZ
MANALAYSAY and PETRONILA S. RULLODA; and
2. To direct the Election Officer of Sta. Rosa, Nueva Ecija and San Jacinto,
Pangasinan to delete the name of ANDRES PEREZ MANALAYSAY, candidate for
Barangay Chairman in Barangay La Fuente, Sta. Rosa, Nueva Ecija; and the name
of PETRONILA S. RULLODA, candidate for Barangay Captain in Barangay Sto.
Tomas, San Jacinto, Pangasinan.
Let the Law Department implement this resolution.
SO ORDERED.
[7]

The above-quoted Resolution cited as authority the COMELECs Resolution No.
4801 dated May 23, 2002, setting forth the guidelines on the filing of certificates of
candidacy in connection with the July 15, 2002 synchronized Barangay and
Sangguniang Kabataan elections, more particularly Section 9 thereof which reads:
Sec. 9. Substitution of candidates. There shall be no substitution of candidates
for barangay and sangguniang kabataan officials.
[8]

Hence, petitioner filed the instant petition for certiorari, seeking to annul Section 9 of
Resolution No. 4801 and Resolution No. 5217, both of the COMELEC, insofar as they
prohibited petitioner from running as substitute candidate in lieu of her deceased
husband; to nullify the proclamation of respondent; and to proclaim her as the duly
elected Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan.
Private respondent Remegio Placido filed his Comment, arguing that since the
barangay election is non-partisan, substitution of candidates is not allowed. Moreover,
petitioner did not file any certificate of candidacy; hence, there was only one candidate
for Barangay Chairman of Sto. Tomas, namely, respondent Placido.
[9]

Public respondent COMELEC also filed its Comment. It contends that its
Resolution No. 4801 was issued not pursuant to its quasi-judicial functions but as an
incident of its inherent administrative functions over the conduct of the barangay
elections. Therefore, the same may not be the subject of review in a petition for
certiorari. Further, the COMELEC alleges that it did not commit grave abuse of
discretion in denying due course to petitioners certificate of candidacy and in
proclaiming respondent considering that he was the only candidate for Barangay
Chairman of Sto. Tomas.
[10]

We find merit in the petition.
At the outset, there is no dispute that petitioner garnered 516 votes while
respondent got only 290 votes. Respondents did not deny this in their respective
Comments.
In our jurisdiction, an election means the choice or selection of candidates to public
office by popular vote through the use of the ballot, and the elected officials which are
determined through the will of the electorate. An election is the embodiment of the
popular will, the expression of the sovereign power of the people. The winner is the
candidate who has obtained a majority or plurality of valid votes cast in the
election. 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.
[11]

Respondents base their argument that the substitution of candidates is not allowed
in barangay elections on Section 77 of the Omnibus Elections Code, which states:
Section 77. Candidates in case of death, disqualification or withdrawal of another.
If after the last day of the filing of certificates of candidacy, an official candidate of a
registered or accredited political party dies, withdraws or is disqualified for any cause,
only a person belonging to, and certified by the same political party may file a
certificate of candidacy to replace the candidate who died, withdrew or was
disqualified. The substitute candidate nominated by the political party concerned may
file his certificate of candidacy for the office affected in accordance with the
preceding sections not later than mid-day of the election. If the death, withdrawal or
disqualification should occur between the day before the election and mid-day of
election day, said certificate may be filed with any board of election inspectors in the
political subdivision where he is a candidate or, in the case of candidates to be voted
by the entire electorate of the country, with the Commission.
Private respondent argues that inasmuch as the barangay election is non-partisan,
there can be no substitution because there is no political party from which to designate
the substitute. Such an interpretation, aside from being non sequitur, ignores the
purpose of election laws which is to give effect to, rather than frustrate, the will of the
voters.
[12]
It is a solemn duty to uphold the clear and unmistakable mandate of the
people. It is well-settled that in case of doubt, political laws must be so construed as to
give life and spirit to the popular mandate freely expressed through the ballot.
[13]

Contrary to respondents claim, the absence of a specific provision governing
substitution of candidates in barangay elections can not be inferred as a prohibition
against said substitution. Such a restrictive construction cannot be read into the law
where the same is not written. Indeed, there is more reason to allow the substitution of
candidates where no political parties are involved than when political considerations or
party affiliations reign, a fact that must have been subsumed by law.
Private respondent likewise contends that the votes in petitioners favor can not be
counted because she did not file any certificate of candidacy. In other words, he was
the only candidate for Barangay Chairman. His claim is refuted by the Memorandum of
the COMELEC Law Department as well as the assailed Resolution No. 5217, wherein it
indubitably appears that petitioners letter-request to be allowed to run as Barangay
Chairman of Sto. Tomas in lieu of her late husband was treated as a certificate of
candidacy.
[14]

To reiterate, it was petitioner who obtained the plurality of votes in the contested
election. Technicalities and procedural niceties in election cases should not be made to
stand in the way of the true will of the electorate. 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.
[15]

Election contests involve public interest, and technicalities and procedural barriers
must yield if they constitute an obstacle to the determination of the true will of the
electorate in the choice of their elective officials. The Court frowns upon any
interpretation of the law 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.
[16]

WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The
assailed Resolution No. 5217 of the Commission on Elections, insofar as it denied due
course to petitioners certificate of candidacy, is declared NULL and VOID. The
proclamation of respondent Remegio L. Placido as Barangay Chairman of Sto. Tomas,
San Jacinto, Pangasinan is SET ASIDE, and the Board of Canvassers of the said
Barangay is ORDERED to proclaim petitioner as the duly elected Barangay Chairman
thereof.
SO ORDERED.
Bellosillo, Puno, Vitug, Mendoza, Sandoval-Gutierrez, Carpio , Austria-Martinez,
Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Davide, Jr., and Quisumbing, JJ., in the result, pro hac vice only.
Panganiban, J., in the result.



[1]
Rollo, p. 46.
[2]
Ibid., p. 47.
[3]
Ibid., pp. 49-64.
[4]
Ibid., p. 67.
[5]
Ibid., pp. 68-82.
[6]
Ibid., p. 83.
[7]
Ibid., pp. 42-43.
[8]
Ibid., pp. 33-39, at 38.
[9]
Ibid., pp. 122-125.
[10]
Ibid., pp. 133-137.
[11]
Carlos v. Angeles, 346 SCRA 571, 582 [2000].
[12]
Papandayan, Jr. v. COMELEC, et al., G.R. No. 147909. April 16, 2002.
[13]
Bengson III v. House of Representatives Electoral Tribunal, et al., Concurring Opinion of Justice
Artemio V. Panganiban, 357 SCRA 545, 566 [2001]; citing Frivaldo v. COMELEC, 257 SCRA 727 [1996].
[14]
Rollo, pp. 40-43.
[15]
Carlos v. Angeles, supra., citing Benito v. COMELEC, 235 SCRA 436, 442 [1994].
[16]
OHara v. COMELEC, et al., G.R. Nos. 148941-42, March 12, 2002.

Republic of the Philippines
Supreme Court
Manila


EN BANC


ABRAHAM KAHLIL B. MITRA,
Petitioner,




- versus -




COMMISSION ON ELECTIONS,
ANTONIO V. GONZALES,
andORLANDO R. BALBON, JR.,
Respondents.

G.R. No. 191938

Present:

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

Promulgated:

July 2, 2010
x-----------------------------------------------------------------------------------------x

D E C I S I O N

BRION, J .:

The minimum requirement under our Constitution
[1]
and election laws
[2]
for
the candidates residency in the political unit they seek to represent has never been
intended to be an empty formalistic condition; it carries with it a very specific
purpose: to prevent "stranger[s] or newcomer[s] unacquainted with the conditions
and needs of a community from seeking elective offices in that community.
[3]


The requirement is rooted in the recognition that officials of districts or
localities should not only be acquainted with the metes and bounds of their
constituencies; more importantly, they should know their constituencies and the
unique circumstances of their constituents their needs, difficulties, aspirations,
potentials for growth and development, and all matters vital to their common
welfare. Familiarity, or the opportunity to be familiar, with these circumstances
can only come with residency in the constituency to be represented.

The purpose of the residency requirement is best met by individuals who
have either had actual residence in the area for a given period or who have been
domiciled in the same area either by origin or by choice.
[4]
At the same time, the
constituents themselves can best know and evaluate the candidates qualifications
and fitness for office if these candidates have lived among them.
[5]


Read and understood in this manner, residency can readily be appreciated as
a requirement that goes into the heart of our democratic system; it directly supports
the purpose of representation electing those who can best serve the community
because of their knowledge and sensitivity to its needs. It likewise adds meaning
and substance to the voters freedom of choice in the electoral exercise that
characterizes every democracy.

In the present case, the respondent Commission on Elections (COMELEC)
canceled the certificate of candidacy (COC) of petitioner Abraham Kahlil B. Mitra
for allegedly misrepresenting that he is a resident of
the Municipality of Aborlan, Province of Palawan where he ran for the position of
Governor. Mitra came to this Court to seek the reversal of the cancellation.
[6]


The Antecedents

When his COC for the position of Governor of Palawan was declared
cancelled, Mitra was the incumbent Representative of the Second District of
Palawan. This district then included, among other territories,
the Municipality of Aborlan and Puerto Princesa City. He was elected
Representative as a domiciliary of Puerto Princesa City, and represented the
legislative district for three (3) terms immediately before the elections of 2010.
[7]


On March 26, 2007 (or before the end of Mitras second term as
Representative), Puerto Princesa City was reclassified as a highly urbanized city
and thus ceased to be a component city of the Province of Palawan. The direct
legal consequence of this new status was the ineligibility
of Puerto Princesa City residents from voting for candidates for elective provincial
officials.
[8]


On March 20, 2009, with the intention of running for the position of
Governor, Mitra applied for the transfer of his Voters Registration Record from
Precinct No. 03720 ofBrgy. Sta. Monica, Puerto Princesa City,
to Sitio Maligaya, Brgy. Isaub, Municipality of Aborlan, Province of Palawan. He
subsequently filed his COC for the position of Governor of Palawan as a resident
of Aborlan.
[9]


Soon thereafter, respondents Antonio V. Gonzales and Orlando R. Balbon,
Jr. (the respondents) filed a petition to deny due course or to cancel Mitras
COC.
[10]
They essentially argued that Mitra remains a resident
of Puerto Princesa City who has not yet established residence in Aborlan, and is
therefore not qualified to run for Governor of Palawan. Mitra insisted in his
Answer that he has successfully abandoned Puerto Princesa City as his domicile of
origin, and has established a new domicile in Aborlan since 2008.
[11]


The Parties Claims and Evidence


The respondents petition before the COMELEC claimed that Mitras COC
should be cancelled under the following factual premises: (a) Mitra bought, in June
2009, a parcel of land in Aborlan where he began to construct a house, but up to
the time of the filing of the petition to deny due course or to cancel Mitras COC,
the house had yet to be completed; (b) in the document of sale, Puerto Princesa
City was stated as Mitras residence (attached as Annex J of the Respondents
Petition before the COMELEC);
[12]
(c) Mitras Puerto Princesa City residence was
similarly stated in his application for a building permit (attached as Annex K of
the Respondents Petition before the COMELEC);
[13]
and (d) Mitras community
tax certificate states that his residence was Puerto Princesa City (attached as Annex
M of the Respondents Petition before the COMELEC).
[14]
The respondents
presented several affidavits attesting to the non-completion of the construction of
the house,
[15]
and asserted that without a fully constructed house, Mitra could not
claim residence in Aborlan.

Mitra denied the respondents allegations in his Answer. He claimed that
the respondents misled the COMELEC by presenting photographs of his
unfinished house on the land he purchased from a certain Rexter Temple. He
claimed, on the contrary, that his residence is located inside the premises of the
Maligaya Feedmill and Farm (Maligaya Feedmill) which the owner, Carme Caspe,
leased to him; and that he purchased a farm and presently has an experimental
pineapple plantation and a cock farm. The transfer of his residence, he claimed,
began in 2008.
[16]


He submitted the following: (a) the Sinumpaang Salaysay of Ricardo
Temple; Florame T. Gabrillo, the Punong Barangay of Isaub, Aborlan; Marissa U.
Zumarraga, Councilor of Aborlan; Virginia J. Agpao and Elsa M. Dalisay,
both Sangguniang Barangay members of Isaub, Aborlan, attesting that Mitra
resides in their locality;
[17]
(b) photographs of the residential portion of the
Maligaya Feedmill
[18]
where he claims to reside, and of his Aborlan experimental
pineapple plantation, farm, farmhouse and cock farm;
[19]
(c) the lease contract over
the Maligaya Feedmill;
[20]
(d) the community tax certificate he claims he himself
secured, stating that Aborlan is his residence;
[21]
and (e) an updated identification
card issued by the House of Representatives stating that Aborlan is his
residence.
[22]


To refute Mitras claimed residence in Aborlan specifically, that he resides
at the Maligaya Feedmill property the respondents additionally submitted: (a) the
affidavits of the 14 Punong Barangays of Aborlan and of six residents of Aborlan,
all stating that Mitra is not a resident of Aborlan and has never been seen in that
municipality; (b) a Certification from the Barangay Captain of Sta. Monica, Puerto
Princesa City stating that Mitra was a resident of that barangay as of November 16,
2009; (c) the affidavit of Commodore Nicanor Hernandez attesting that Mitra
continues to reside in Puerto Princesa City; and (d) 24 affidavits of former
employees, workers, Aborlan residents and a customer of the Maligaya Feedmill
attesting that they have never seen Mitra during the time he claimed to have lived
there and that the area where Mitra supposedly lives is, in fact, the office of the
feedmill and is unlivable due to noise and pollution.
[23]


The Ruling of the COMELECs First Division
[24]


The Law. The First Division defined the governing law with the statement
that residence means domicile under the Courts consistent rulings since 1928
in Nuval v. Guray.
[25]
Domicile imports not only the intent to reside in a fixed
place but also personal presence in that place, coupled with conduct indicative of
this intention.
[26]


To acquire a new domicile a domicile by choice the following must
concur: (1) residence or bodily presence in a new locality; (2) an intention to
remain there; and (3) an intention to abandon the old domicile. In other words,
there must be an animus non revertendi with respect to the old domicile, and
an animus manendi at the domicile of choice. The intent to remain in or at the
domicile of choice must be for an indefinite period of time and the acts of the
person must be consistent with this intent.
[27]


The First Divisions Evaluation of the Parties Evidence. Based on its
consideration of the submitted evidence (including various affidavits submitted by
both parties and the photographs of the room that Mitra claims to be his residence)
and citing jurisprudence, the First Division granted the respondents petition to
cancel Mitras COC.

To the First Division, Mitras submitted pictures are telling; they show a
small, sparsely furnished room that is evidently unlived in, located at the second
floor of a structure that appears to be a factory or a warehouse; the residence
appears hastily set-up, cold, and utterly devoid of any indication of Mitras
personality such as old family photographs and memorabilia collected through the
years. What the supposed residence lacks, in the First Divisions perception, are
the loving attention and details inherent in every home to make it ones residence;
perhaps, at most, this small room could have served as Mitras resting area
whenever he visited the locality, but nothing more than this.
[28]


These observations coupled with the statements from former employees
and customers of the Maligaya Feedmill that the claimed residence is located in an
unsavory location (for its noise and pollution), and that it had been in fact
Maligaya Feedmills office just a few months back militated against Mitras
claim. These pieces of information made it clear, to the First Division, that this
room is not the home that a residence is supposed to be.
[29]


A persons domicile of origin is not easily lost, the First Division further
said. The fact that Mitra registered as a voter in Aborlan, has a cock farm, a farm,
a rest house and an experimental pineapple plantation in Maligaya Feedmill, was
occasionally seen staying in Aborlan, and held meetings with Aborlan constituents
does not necessarily establish Mitras status as an Aborlan resident, or prove his
abandonment of his domicile of origin in Puerto Princesa City. Mere absence from
ones residence or domicile of origin to pursue studies, engage in business, or
practice ones vocation is not sufficient to constitute abandonment or loss of
domicile. Registration or voting in a place other than ones domicile does not
eliminate an individuals animus revertendi to his domicile of origin; the natural
desire and longing of every person to return to the place of birth and his strong
feeling of attachment to this place can only be shown to have been overcome by a
positive proof of abandonment of this place for another.
[30]


Also, the First Division said that Mitras witnesses sworn statements appear
to have been prepared by the same person, as they use similar wordings,
allegations, and contents; thus, putting into question the credibility of the
statements. Furthermore, the lease contract over the Maligaya Feedmill between
Mitra and Carme Caspe is effective only up to February 28, 2010, thus casting
doubt on Mitras claim of residency in Aborlan.
[31]



The COMELEC En Banc Ruling

The COMELEC en banc in a divided decision
[32]
subsequently denied
Mitras motion to reconsider the First Division ruling under the following outlined
reasons.

First, registration as a voter of Aborlan is not sufficient evidence that Mitra
has successfully abandoned his domicile of origin.
[33]


Second, mere intent cannot supplant the express requirement of the law; the
physical presence required to establish domicile connotes actual, factual
and bona fideresidence in a given locality. The COMELEC en banc agreed with
the First Divisions evidentiary findings on this point.
[34]


Third, the First Divisions Resolution was based on a careful and judicious
examination and consideration of all evidence submitted by the parties. The
summary nature of the proceedings is not necessarily offensive to a partys right to
due process.
[35]


Fourth, Fernandez v. House of Representatives Electoral Tribunal
[36]
is not
on all fours with the present case Fernandez stemmed from a quo warranto case
while the present case involves a petition to deny due course or cancel the
COC. Likewise, Fernandez successfully proved that his transfer to Sta. Rosa City,
Laguna several years prior to his candidacy was prompted by valid reasons, i.e.,
existence of his business in the area and the enrolment of his children at Sta. Rosa
schools, thereby erasing doubts as to thebona fide nature of his transfer. In the
present case, the COMELEC en banc found that Mitra admitted that his transfer to
Aborlan in 2008 was prompted by his plans to run for governor in the 2010
national and local elections. The COMELEC en banc also noted
that Fernandez involved an individual who had earned an overwhelming mandate
from the electorate. The COMELEC en bancs ruling on Mitras case, on the other
hand, came before the 2010 elections; thus, the people had not then voted.
[37]


In his Dissent,
[38]
Commissioner Sarmiento points out that the following acts
of Mitra, taken collectively, indubitably prove a change of domicile from Puerto
Princesa to Aborlan:

(a) in January 2008, [Mitra] started a pineapple growing project in a rented
farmland near Maligaya Feedmill and Farm located in Barangay Isaub,
Aborlan;

(b) in February 2008, [Mitra] leased the residential portion of the said Maligaya
Feedmill;

(c) in March 2008, after the said residential portion has been refurbished and
renovated, [Mitra] started to occupy and reside in the said premises;

(d) in 2009, [Mitra] purchased his own farmland in the same barangay but
continued the lease involving the Maligaya Feedmill, the contract of which
was even renewed until February 2010; and

(e) [Mitra] caused the construction of a house in the purchased lot which has
been recently completed.
[39]


The Petition

Mitra supports his petition with the following ARGUMENTS:

6.1 x x x COMELECs GRAVE ABUSE is most patent as IT forgets,
wittingly or unwittingly that the solitary GROUND to deny due course to a COC
is the DELIBERATE false material representation to DECEIVE, and not the issue
of the candidates eligibility which should be resolved in an appropriate QUO
WARRANTO proceedings post election.
[40]


6.2 Deny Due Course Petitions under Section 78 of the OEC, being
SUMMARILY decided and resolved, the same must be exercised most sparingly,
with utmost care and extreme caution; and construed most strictly against the
proponent/s, and liberally in favor of the candidate sought to be
eliminated. When exercised otherwise and with apparent biased in favor of the
proponents, as in this instance, GRAVE ABUSE OF DISCRETION necessarily
sets in.
[41]


6.3 The mandate to be extremely cautious and careful in the SUMMARY
exercise of the awesome power to simplistically cancel [ones]
candidacy x x x is further made manifest by the availability of a QUO
WARRANTO proceeding appropriately prosecuted post election.
[42]


6.4 Absent any formal HEARINGS and Presentation of Evidence;
Lacking the actual inspection and verification; and without actual confrontation of
affiants/alleged witnesses ALL the conclusions of COMELEC on the
RESIDENCE issue, were indeed predicted (sic) on sheer SPECULATION[.]
[43]


6.5 A grievous procedural flaw, FATAL in character. THE BURDEN OF
PROOF MUST ALWAYS BE PLACED ON THE SHOULDERS OF THE
PROPONENT/s. Not so in the present controversy, where COMELECs assailed
decision/s were devoted exclusively to the alleged weakness of MITRAs
submissions and COMELECs speculative conclusions, rather than on the
strength of proponents unverified and unconfirmed submissions and
unconfronted sworn statements of supposed affiants[.]
[44]



The petition also asks for ancillary injunctive relief. We granted the
application for injunctive relief by issuing a status quo ante order, allowing Mitra
to be voted upon in the May 10, 2010 elections.
[45]


The respondents Comment
[46]
states the following counter-arguments:

a. Procedural Arguments:
II. THE INSTANT PETITION FAILED TO ATTACH CERTIFIED TRUE
COPIES OF THE MATERIAL PORTIONS OF THE RECORDS REFERRED
TO THEREIN IN GROSS CONTRAVENTION OF SECTION 5 OF RULE 64
OF THE RULES OF COURT. CONSEQUENTLY, IT MUST BE DISMISSED
OUTRIGHT.

III. THE INSTANT PETITION RAISES MERE ERRORS OF JUDGMENT,
WHICH ARE OUTSIDE THIS HONORABLE COURTS CERTIORARI
JURISDICTION.

b. Arguments on the Merits

I. XXX

B. THE LAW, IN IMPOSING A RESIDENCY REQUIREMENT, MANDATES
NOT ONLY FAMILIARITY WITH THE NEEDS AND CONDITIONS OF
THE LOCALITY, BUT ALSO ACTUAL PHYSICAL, PERSONAL AND
PERMANENT RESIDENCE THEREIN. PETITIONERS SUPPOSED
FAMILIARITY WITH THE NEEDS, DIFFICULTIES, ASPIRATIONS,
POTENTIALS (SIC) FOR GROWTH AND ALL MATTERS VITAL TO
THE WELFARE OF HIS CONSTITUENCY WHICH CONSTITUTES
ONE/THIRD OF THE WHOLE PROVINCE OF PALAWAN AS A
THREE-TERM CONGRESSMAN ABSENT SUCH RESIDENCE DOES
NOT SUFFICE TO MEET THE RESIDENCY REQUIREMENT OF THE
LAW.

IV. FINDINGS OF FACTS OF ADMINISTRATIVE BODIES SUCH AS THE
COMELEC, ARE ACCORDED GREAT RESPECT, IF NOT FINALITY BY
THE COURTS, ESPECIALLY IF SUPPORTED BY SUBSTANTIAL
EVIDENCE. BECAUSE THE FINDINGS OF FACTS OF THE COMELEC IN
THE INSTANT CASE ARE OVERWHELMINGLY SUPPORTED BY
SUBSTANTIAL EVIDENCE, THIS HONORABLE COURT MAY NOT
REVERSE SUCH FINDINGS.

V. THE COMELEC DID NOT COMMIT ANY GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
ISSUING THE ASSAILED RESOLUTION DATED 04 MAY 2010.

A. THE COMELEC CORRECTLY RULED THAT PETITIONERS
REGISTRATION AS A VOTER IN ABORLAN, PALAWAN IS NOT
SUFFICIENT EVIDENCE THAT HE HAS SUCCESSFULLY
ABANDONED HIS DOMICILE OF ORIGIN AT PUERTO PRINCESA
CITY, PALAWAN.

B. THE COMELEC CORRECTLY RULED THAT PETITIONERS MERE
INTENT TO TRANSFER RESIDENCE TO ABORLAN, PALAWAN,
ABSENT ACTUAL, FACTUAL, AND BONA FIDE RESIDENCE
THEREIN DOES NOT SUFFICE TO PROVE HIS TRANSFER OF
RESIDENCE FROM PUERTO PRINCESA, PALAWAN TO
ABORLAN, PALAWAN.

C. THE COMELEC THOROUGHLY EVALUATED THE EVIDENCE, AND
CORRECTLY ARRIVED AT THE ASSAILED DECISION ONLY AFTER
MUCH DELIBERATION AND CAREFUL ASSESSMENT OF THE
EVIDENCE, ALBEIT THROUGH SUMMARY PROCEEDINGS
PARTICIPATED IN ACTIVELY BY PETITIONER. THE COMELEC
CORRECTLY DID NOT GIVE CREDENCE TO THE TESTIMONIES OF
PETITIONERS WITNESSES FOR BEING INCREDIBLE AND
CONTRARY TO THE PHYSICAL EVIDENCE, ESPECIALLY
PERTAINING TO HIS ALLEGED RESIDENCE AT THE FEEDMILL
PROPERTY.

D. THE COMELEC CORRECTLY RULED THAT PETITIONER HAS NOT
TRANSFERRED HIS RESIDENCE FROM PUERTO PRINCESA,
PALAWAN TO ABORLAN, PALAWAN.

E. THE ALLEGED LEASE OF THE RESIDENTIAL PORTION OF THE
FEEDMILL PROPERTY IS A SHAM.

VI. GIVEN HIS STATURE AS A MEMBER OF THE PROMINENT
MITRA CLAN OF PALAWAN, AND AS A 3-TERM CONGRESSMAN, IT IS
HIGHLY INCREDIBLE THAT A SMALL ROOM IN A FEEDMILL HAS
SERVED AS HIS RESIDENCE SINCE 2008.

VII. THE COMELEC CORRECTLY RULED THAT PETITIONER MAY
NOT INVOKE THE CASE OF FERNANDEZ V. HRET AS PETITIONER IS
NOT SIMILARLY SITUATED AS DAN FERNANDEZ.

VIII. THE MATERIAL STATEMENT IN PETITIONERS COC RESPECTING
HIS RESIDENCE HAS BEEN SHOWN TO BE FALSE. BY MAKING SUCH
FALSE STATEMENT, PETITIONER DELIBERATELY TRIED TO MISLEAD
AND TO MISINFORM THE ELECTORATE AS TO HIS ACTUAL
RESIDENCE. HENCE, HIS COC WAS CORRECTLY DENIED DUE
COURSE AND CANCELED.

In the recently concluded elections of May 10, 2010, Mitra obtained the
most number of votes for Governor and was accordingly proclaimed winner of
the Palawangubernatorial contest.
[47]


We required the respondents and the COMELEC to comment on the
petition.
[48]
They complied on May 6, 2010
[49]
and June 2, 2010,
respectively.
[50]
On May 17, 2010, the petitioner filed a Supplemental
Petition.
[51]


On May 26, 2010, the respondents filed a Supplemental Comment (with
Omnibus Motion to Annul Proclamation and for Early Resolution) to the
petitioners Supplemental Petition.
[52]
We deemed the case ready for resolution
on the basis of these submissions.

The Courts Ruling

We find the petition meritorious.


The Limited Review in Certiorari Petitions
under Rule 64, in relation to Rule 65 of the
Rules of Court

A preliminary matter before us is the respondents jurisdictional objection
based on the issues raised in the present petition. The respondents assert that the
questions Mitra brought to us are beyond our certiorari jurisdiction. Specifically,
the respondents contend that Mitras petition merely seeks to correct errors of the
COMELEC in appreciating the parties evidence a question we cannot entertain
under our limited certiorari jurisdiction.
Mitra brought his case before us pursuant to Rule 64, in relation to Rule 65
of the Rules of Court.
[53]
Our review, therefore, is based on a very limited ground
the jurisdictional issue of whether the COMELEC acted without or in excess of
its jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction.

Whether the COMELEC, by law, has jurisdiction over a case or matter
brought to it is resolved by considering the black-letter provisions of the
Constitution and pertinent election laws, and we see no disputed issue on this
point. Other than the respondents procedural objections which we will fully
discuss below, the present case rests on the allegation of grave abuse of discretion
an issue that generally is not as simple to resolve.

As a concept, grave abuse of discretion defies exact definition; generally,
it refers to capricious or whimsical exercise of judgment as is equivalent to lack
of jurisdiction; the abuse of discretion must be patent and gross as to amount to an
evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or
to act at all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion and hostility.
[54]
Mere abuse of
discretion is not enough; it must be grave.
[55]
We have held, too, that the use
of wrong or irrelevant considerations in deciding an issue is sufficient to taint a
decision-makers action with grave abuse of discretion.
[56]


Closely related with the limited focus of the present petition is the condition,
under Section 5, Rule 64 of the Rules of Court, that findings of fact of the
COMELEC, supported by substantial evidence, shall be final and non-
reviewable. Substantial evidence is that degree of evidence that a reasonable
mind might accept to support a conclusion.
[57]


In light of our limited authority to review findings of fact, we do
not ordinarily review in a certiorari case the COMELECs appreciation and
evaluation of evidence. Any misstep by the COMELEC in this regard generally
involves an error of judgment, not of jurisdiction.

In exceptional cases, however, when the COMELECs action on the
appreciation and evaluation of evidence oversteps the limits of its discretion to the
point of being grossly unreasonable, the Court is not only obliged, but has the
constitutional duty to intervene.
[58]
When grave abuse of discretion is present,
resulting errors arising from the grave abuse mutate from error of judgment to one
of jurisdiction.
[59]


Our reading of the petition shows that it is sufficient in form with respect to
the requisite allegation of jurisdictional error. Mitra clearly alleged the
COMELEC acts that were supposedly tainted with grave abuse of
discretion. Thus, we do not agree with the respondents contention that the petition
on its face raises mere errors of judgment that are outside
our certiorari jurisdiction. Whether the allegations of grave abuse are duly
supported and substantiated is another matter and is the subject of the discussions
below.

Nature of the Case under Review:
COC Denial/Cancellation Proceedings

The present petition arose from a petition to deny due course or to cancel
Mitras COC. This is the context of and take-off point for our review. From this
perspective, the nature and requisites of the COC cancellation proceedings are
primary considerations in resolving the present petition.
[60]


Section 74, in relation to Section 78, of the Omnibus Election Code (OEC)
governs the cancellation of, and grant or denial of due course to, COCs. The
combined application of these sections requires that the candidates stated facts in
the COC be true, under pain of the COCs denial or cancellation if any false
representation of a material fact is made. To quote these provisions:

SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall
state that the person filing it is announcing his candidacy for the office stated therein and
that he is eligible for said office; if for Member of the Batasang Pambansa, the province,
including its component cities, highly urbanized city or district or sector which he seeks
to represent; the political party to which he belongs; civil status; his date of birth;
residence; his post office address for all election purposes; his profession or occupation;
that he will support and defend the Constitution of the Philippines and will maintain true
faith and allegiance thereto; that he will obey the laws, legal orders, and decrees
promulgated by the duly constituted authorities; that he is not a permanent resident or
immigrant to a foreign country; that the obligation 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.

x x x x

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.


The false representation that these provisions mention must necessarily
pertain to a material fact. The critical material facts are those that refer to a
candidates qualifications for elective office, such as his or her citizenship and
residence. The candidates status as a registered voter in the political unit where he
or she is a candidate similarly falls under this classification as it is a requirement
that, by law (the Local Government Code), must be reflected in the COC. The
reason for this is obvious: the candidate, if he or she wins, will work for and
represent the political unit where he or she ran as a candidate.
[61]


The false representation under Section 78 must likewise be a deliberate
attempt to mislead, misinform, or hide a fact that would otherwise render a
candidate ineligible. Given the purpose of the requirement, it must be made with
the intention to deceive the electorate as to the would-be candidates qualifications
for public office.
[62]
Thus, the misrepresentation that Section 78 addresses cannot
be the result of a mere innocuous mistake, and cannot exist in a situation where the
intent to deceive is patently absent, or where no deception on the electorate results.
The deliberate character of the misrepresentation necessarily follows from a
consideration of the consequences of any material falsity: a candidate who falsifies
a material fact cannot run; if he runs and is elected, he cannot serve; in both cases,
he can be prosecuted for violation of the election laws.

Based on these standards, we find that Mitra did not commit any
deliberate material misrepresentation in his COC. The COMELEC gravely
abused its discretion in its appreciation of the evidence, leading it to conclude that
Mitra is not a resident of Aborlan, Palawan. The COMELEC, too, failed to
critically consider whether Mitra deliberately attempted to mislead, misinform or
hide a fact that would otherwise render him ineligible for the position of Governor
of Palawan.

Under the evidentiary situation of the case,
there is clearly no basis for the conclusion
that Mitra deliberately attempted to mislead
the Palawan electorate.

From the start, Mitra never hid his intention to transfer his residence
from Puerto Princesa City to Aborlan to comply with the residence requirement of
a candidate for an elective provincial office. Republic Act No. 7160, otherwise
known as the Local Government Code, does not abhor this intended transfer of
residence, as its Section 39 merely requires an elective local official to be a
resident of the local government unit where he intends to run for at least one (1)
year immediately preceding the day of the election. In other words, the law
itself recognizes implicitly that there can be a change of domicile or residence, but
imposes only the condition that residence at the new place should at least be for a
year. Of course, as a continuing requirement or qualification, the elected official
must remain a resident there for the rest of his term.

Mitras domicile of origin is undisputedly Puerto Princesa City. For him to
qualify as Governor in light of the relatively recent change of status of Puerto
Princesa City from a component city to a highly urbanized city whose residents can
no longer vote for provincial officials he had to abandon his domicile of origin
and acquire a new one within the local government unit where he intended to run;
this would be his domicile of choice. To acquire a domicile of choice,
jurisprudence, which the COMELEC correctly invoked, requires the following:

(1) residence or bodily presence in a new locality;
(2) an intention to remain there; and
(3) an intention to abandon the old domicile.
[63]


The contentious issues in Mitras case relate to his bodily presence, or the
lack of it, in Aborlan, and the declaration he made on this point. The respondents
anchor their cause of action on the alleged falsity of Mitras statement that he is a
resident of Aborlan. To support this contention, the respondents claim that the
construction of the supposed Mitra residence or house, other than the leased
premises in Maligaya Feedmill, has yet to be completed, leaving Mitra with no
habitable place in Aborlan. When Mitra successfully refuted this original claim,
the respondents presented sworn statements of Aborlan residents contradicting
Mitras claimed physical residence at the Maligaya Feedmill building in
Aborlan. They likewise point out, by sworn statements, that this alleged residence
could not be considered a house that Mitra could properly consider his residence,
on the view that the feedmill place is beneath what Mitra a three-term
congressman and a member of the Mitra political clan of Palawan would occupy.

Mitra, on the other hand, presented sworn statements of various persons
(including the seller of the land he purchased, the lessor of the Maligaya Feedmill,
and the Punong Barangay of the site of his residence) attesting to his physical
residence in Aborlan; photographs of the residential portion of Maligaya Feedmill
where he resides, and of his experimental pineapple plantation, farm, farmhouse
and cock farm; the lease contract over the Maligaya Feedmill; and the deed of sale
of the lot where he has started constructing his house. He clarified, too, that he
does not claim residence in Aborlan at the house then under construction; his
actual residence is the mezzanine portion of the Maligaya Feedmill building.

Faced with the seemingly directly contradictory evidence, the COMELEC
apparently grossly misread its import and, because it used wrong considerations,
was led into its faulty conclusion.

The seeming contradictions arose from the sworn statements of some
Aborlan residents attesting that they never saw Mitra in Aborlan; these are
controverted by similar sworn statements by other Aborlan residents that Mitra
physically resides in Aborlan. The number of witnesses and their conflicting
claims for and against Mitras residency appear to have sidetracked the
COMELEC. Substantial evidence, however, is not a simple question of number;
reason demands that the focus be on what these differing statements say.

For example, the sworn statements that Mitra has never been seen in
Aborlan border on the unbelievable and loudly speak of their inherent weakness as
evidence.
Mitra has established business interests in Aborlan, a fact which the
respondents have never disputed. He was then the incumbent three-term
Representative who, as early as 2008, already entertained thoughts of running for
Governor in 2010. It is not disputed, too, that Mitra has started the construction of
a house on a lot he bought from RexterTemple; the site is very near the Maligaya
Feedmill that he leased from its owner, Carme Caspe.

While Mitra might not have stayed in Aborlan nor in Palawan for most of
2008 and 2009 because his office and activities as a Representative were
in Manila, it is hardly credible that he would not be seen in Aborlan. In this
regard, the sworn statement of the Punong Barangay of Isaub, Aborlan should
carry a lot more weight than the statements of punong barangay officials
elsewhere since it is the business of a punong barangay to know who the residents
are in his own barangay. The COMELEC apparently missed all these because it
was fixated on the perceived coldness and impersonality of Mitras dwelling.

The parties submitted documentary evidence likewise requires careful
consideration for the correct appraisal of its evidentiary value. On the one hand,
the document of sale of the Temple property, the building permit for the house
under construction, and the community tax certificate used in these transactions all
stated that Mitras residence wasPuerto Princesa City. On the other hand, Mitra
introduced a notarized contract of lease supported by the sworn explanation of
the lessor (Carme Caspe) showing that he indeed leased Maligaya Feedmill. He
submitted, too, a residence certificate showing Aborlan as his residence, and an
identification card of the House of Representatives showing Aborlan as his
residence.

We cannot give full evidentiary weight to the contract of sale as evidence
relating to Mitras residence for two reasons. First, it is a unilateral
contract executed by the seller (Rexter Temple); thus, his statement and belief as
to Mitras personal circumstances cannot be taken as conclusive against the
latter. Second, the sale involved several vendees, including Mitras brother
(Ramon B. Mitra) and one Peter Winston T. Gonzales; his co-vendees still live in
Puerto Princesa City; hence, they were all loosely and collectively described to
have their residence in Puerto Princesa City.
[64]
Parenthetically, the document
simply stated: I, REXTER TEMPLE, of legal age, Filipino, single and resident of
Isaub, Aborlan, Palawan, hereby by these presents, x x x do
hereby SELL, TRANSFER and CONVEY unto the said Vendees, ABRAHAM
KAHLIL B. MITRA, single; RAMON B. MITRA, married to Mary Ann Mitra;
PETER WINSTON T. GONZALES, married to Florecita R. Gonzales, all of legal
ages and residents [of] Rancho Sta. Monica, Brgy. Sta.
Monica, Puerto Princesa City, their heirs and assigns.
[65]
Thus, the contract
contained a mere general statement that loosely described the vendees
as PuertoPrincesa City residents. This general statement solely came from the
vendor.

The building permit, on the other hand, was filed by Mitras representative,
an architect named John Quillope, who apparently likewise filled the form. That
Mitra only signed the building permit form is readily discernible from an
examination of the face of the form; even the statement on his community tax
certificate bearing a Puerto PrincesaCity residence does not appear in his
handwriting.
[66]
Significantly, Mitras secretary Lilia Camora attested that it
was she who secured the community tax certificate for Mitra in February 2009
without the latters knowledge.
[67]
Annex M of the respondents Petition before
the COMELEC indeed shows that the community tax certificate did not bear the
signature of Mitra.
[68]
Mitra secured his own certificate in Aborlan on March 18,
2009. This community tax certificate carries his own
signature.
[69]
Parenthetically, perCarme Caspes statement, Mitra leased the
feedmill residence in February 2008 and started moving in his belongings in March
2008, confirming the veracity of his Aborlan presence at the time he secured his
community tax certificate.
[70]
In these lights, the February 3, 2009 community tax
certificate, if at all, carries very little evidentiary value.

The respondents expectedly attacked the validity of the lease contract; they
contended in their Memorandum that the feedmill was situated in a forest land that
cannot be leased, and that the contract, while notarized, was not registered with the
required notarial office of the court.
[71]


The validity of the lease contract, however, is not the issue before us; what
concerns us is the question of whether Mitra did indeed enter into an agreement for
the lease, or strictly for the use, of the Maligaya Feedmill as his residence (while
his house, on the lot he bought, was under construction) and whether he indeed
resided there. The notarys compliance with the notarial law likewise assumes no
materiality as it is a defect not imputable to Mitra; what is important is the parties
affirmation before a notary public of the contracts genuineness and due execution.

A sworn statement that has no counterpart in the respondents evidence in so
far as it provides details (particularly when read with the statement
of Ricardo Temple)
[72]
is Carme Caspes statement
[73]
on how Mitras transfer of
residence took place. Read together, these statements attest that the transfer of
residence was accomplished, not in one single move but, through an incremental
process that started in early 2008 and was in place by March 2009, although the
house Mitra intended to be his permanent home was not yet then completed.
[74]


In considering the residency issue, the COMELEC practically focused solely
on its consideration of Mitras residence at Maligaya Feedmill, on the basis of
mere photographs of the premises. In the COMELECs view (expressly voiced out
by the Division and fully concurred in by the En Banc), the Maligaya Feedmill
building could not have been Mitras residence because it is cold and utterly
devoid of any indication of Mitras personality and that it lacks loving attention
and details inherent in every home to make it ones residence.
[75]
This was the
main reason that the COMELEC relied upon for its conclusion.

Such assessment, in our view, based on the interior design and furnishings of
a dwelling as shown by and examined only through photographs, is far from
reasonable; the COMELEC thereby determined the fitness of a dwelling as a
persons residence based solely on very personal and subjective assessment
standards when the law is replete with standards that can be used. Where a
dwelling qualifies as a residence i.e., the dwelling where a person permanently
intends to return to and to remain
[76]
his or her capacity or inclination to decorate
the place, or the lack of it, is immaterial.

Examined further, the COMELECs reasoning is not only intensely
subjective but also flimsy, to the point of grave abuse of discretion when compared
with the surrounding indicators showing the Mitra has indeed been physically
present in Aborlan for the required period with every intent to settle
there. Specifically, it was lost on the COMELEC majority (but not on the Dissent)
that Mitra made definite, although incremental transfer moves, as shown by the
undisputed business interests he has established in Aborlan in 2008; by the lease of
a dwelling where he established his base; by the purchase of a lot for his permanent
home; by his transfer of registration as a voter in March 2009; and by the
construction of a house all viewed against the backdrop of a bachelor
Representative who spent most of his working hours in Manila, who had a whole
congressional district to take care of, and who was establishing at the same time his
significant presence in the whole Province of Palawan.

From these perspectives, we cannot but conclude that the COMELECs
approach i.e., the application of subjective non-legal standards and the gross
misappreciation of the evidence is tainted with grave abuse of discretion, as the
COMELEC used wrong considerations and grossly misread the evidence in
arriving at its conclusion. In using subjective standards, the COMELEC
committed an act not otherwise within the contemplation of law on an evidentiary
point that served as a major basis for its conclusion in the case.

With this analysis and conclusion in mind, we come to the critical question
of whether Mitra deliberately misrepresented that his residence is in Aborlan to
deceive and mislead the people of the Province of Palawan.

We do not believe that he committed any deliberate misrepresentation given
what he knew of his transfer, as shown by the moves he had made to carry it
out. From the evidentiary perspective, we hold that the evidence confirming
residence in Aborlan decidedly tilts in Mitras favor; even assuming the worst for
Mitra, the evidence in his favor cannot go below the level of an equipoise,
i.e., when weighed, Mitras evidence of transfer and residence in Aborlan cannot
be overcome by the respondents evidence that he remained a Puerto Princesa City
resident. Under the situation prevailing when Mitra filed his COC, we cannot
conclude that Mitra committed any misrepresentation, much less a deliberate one,
about his residence.

The character of Mitras representation before the COMELEC is an aspect
of the case that the COMELEC completely failed to consider as it focused mainly
on the character of Mitras feedmill residence. For this reason, the COMELEC
was led into error one that goes beyond an ordinary error of judgment. By failing
to take into account whether there had been a deliberate misrepresentation in
Mitras COC, the COMELEC committed the grave abuse of simply assuming that
an error in the COC was necessarily a deliberate falsity in a material
representation. In this case, it doubly erred because there was no falsity; as the
carefully considered evidence shows, Mitra did indeed transfer his residence within
the period required by Section 74 of the OEC.

The respondents significantly ask us in this case to adopt the same faulty
approach of using subjective norms, as they now argue that given his stature as a
member of the prominent Mitra clan of Palawan, and as a three term
congressman, it is highly incredible that a small room in a feed mill has served as
his residence since 2008.
[77]


We reject this suggested approach outright for the same reason we
condemned the COMELECs use of subjective non-legal standards. Mitras feed
mill dwelling cannot be considered in isolation and separately from the
circumstances of his transfer of residence, specifically, his expressed intent to
transfer to a residence outside of Puerto Princesa City to make him eligible to run
for a provincial position; his preparatory moves starting in early 2008; his initial
transfer through a leased dwelling; the purchase of a lot for his permanent home;
and the construction of a house in this lot that, parenthetically, is adjacent to the
premises he leased pending the completion of his house. These incremental moves
do not offend reason at all, in the way that the COMELECs highly subjective non-
legal standards do.

Thus, we can only conclude, in the context of the cancellation proceeding
before us, that the respondents have not presented a convincing case sufficient to
overcome Mitras evidence of effective transfer to and residence in Aborlan and
the validity of his representation on this point in his COC, while the COMELEC
could not even present any legally acceptable basis to conclude that Mitras
statement in his COC regarding his residence was a misrepresentation.

Mitra has significant relationship with, and
intimate knowledge of, the constituency he
wishes to serve.

Citing jurisprudence, we began this ponencia with a discussion of the
purpose of the residency requirement under the law. By law, this residency can be
anywhere within the Province of Palawan, except for Puerto Princesa City because
of its reclassification as a highly urbanized city. Thus, residency in Aborlan is
completely consistent with the purpose of the law, as Mitra thereby declared and
proved his required physical presence in the Province of Palawan.

We also consider that even before his transfer of residence, he already had
intimate knowledge of the Province of Palawan, particularly of the whole
2
nd
legislative district that he represented for three terms. For that matter, even the
respondents themselves impliedly acknowledged that the Mitras, as a family, have
been identified with elective public service and politics in
the Province of Palawan.
[78]
This means to us that Mitra grew up in the politics
of Palawan.

We can reasonably conclude from all these that Mitra is not oblivious to the
needs, difficulties, aspirations, potential for growth and development, and all
matters vital to the common welfare of the constituency he intends to serve. Mitra
who is no stranger to Palawan has merely been compelled after serving three
terms as representative of the congressional district that
includes Puerto Princesa City and Aborlan by legal developments to transfer his
residence to Aborlan to qualify as a Province of Palawan voter. To put it
differently, were it not for the reclassification of Puerto Princesa City from a
component city to a highly urbanized city, Mitra would not have encountered any
legal obstacle to his intended gubernatorial bid based on his knowledge of and
sensitivity to the needs of the Palawan electorate.

This case, incidentally, is not the first that we have encountered where a
former elective official had to transfer residence in order to continue his public
service in another political unit that he could not legally access, as a candidate,
without a change of residence.

In Torayno, Sr. v. COMELEC,
[79]
former Governor Vicente Y. Emano re-
occupied a house he owned and had leased out in Cagayan de Oro City to qualify
as a candidate for the post of Mayor of that city (like Puerto Princesa City, a highly
urbanized city whose residents cannot vote for and be voted upon as elective
provincial officials). We said in that case that

In other words, the actual, physical and personal presence of herein private
respondent in Cagayan de Oro City is substantial enough to show his intention to
fulfill the duties of mayor and for the voters to evaluate his qualifications for the
mayorship. Petitioners' very legalistic, academic and technical approach to the
residence requirement does not satisfy this simple, practical and common-sense
rationale for the residence requirement.

In Asistio v. Hon. Trinidad Pe-Aguirre,
[80]
we also had occasion to rule on
the residency and right to vote of former Congressman Luis A. Asistio who had
been a congressman for Caloocan in 1992, 1995, 1998 and 2004, and, in the words
of the Decision, is known to be among the prominent political families
in Caloocan City.
[81]
We recognized Asistios position that a mistake had been
committed in his residency statement, and concluded that the mistake is not proof
that Asistio has abandoned his domicile in Caloocan City, or that he has
established residence outside of Caloocan City. By this recognition, we
confirmed that Asistio has not committed any deliberate misrepresentation in his
COC.

These cases are to be distinguished from the case of Velasco v.
COMELEC
[82]
where the COMELEC cancelled the COC of Velasco, a mayoralty
candidate, on the basis of his undisputed knowledge, at the time he filed his COC,
that his inclusion and registration as a voter had been denied. His failure to
register as a voter was a material fact that he had clearly withheld from the
COMELEC; he knew of the denial of his application to register and yet concealed
his non-voter status when he filed his COC. Thus, we affirmed the COMELECs
action in cancelling his COC.

If there is any similarity at all in Velasco and the present case, that similarity
is in the recognition in both cases of the rule of law. In Velasco, we recognized
based on the law that a basic defect existed prior to his candidacy, leading to his
disqualification and the vice-mayor-elects assumption to the office. In the present
case, we recognize the validity of Mitras COC, again on the basis of substantive
and procedural law, and no occasion arises for the vice-governor-elect to assume
the gubernatorial post.




Mitra has been proclaimed winner
in the electoral contest and has therefore
the mandate of the electorate to serve

We have applied in past cases the principle that the manifest will of the
people as expressed through the ballot must be given fullest effect; in case of
doubt, political laws must be interpreted to give life and spirit to the popular
mandate.
[83]
Thus, we have held that while provisions relating to certificates of
candidacy are in mandatory terms, it is an established rule of interpretation as
regards election laws, that mandatory provisions, requiring certain steps before
elections, will be construed as directory after the elections, to give effect to the will
of the people.
[84]


Quite recently, however, we warned against a blanket and unqualified
reading and application of this ruling, as it may carry dangerous significance to the
rule of law and the integrity of our elections. For one, such blanket/unqualified
reading may provide a way around the law that effectively negates election
requirements aimed at providing the electorate with the basic information for an
informed choice about a candidates eligibility and fitness for office.
[85]
Short of
adopting a clear cut standard, we thus made the following clarification:

We distinguish our ruling in this case from others that we have made in
the past by the clarification that COC defects beyond matters of form and that
involve material misrepresentations cannot avail of the benefit of our ruling that
COC mandatory requirements before elections are considered merely directory
after the people shall have spoken. A mandatory and material election law
requirement involves more than the will of the people in any given locality.
Where a material COC misrepresentation under oath is made, thereby violating
both our election and criminal laws, we are faced as well with an assault on the
will of the people of the Philippines as expressed in our laws. In a choice
between provisions on material qualifications of elected officials, on the one
hand, and the will of the electorate in any given locality, on the other, we believe
and so hold that we cannot choose the electorate will.
[86]


Earlier, Frivaldo v. COMELEC
[87]
provided the following test:

[T]his Court has repeatedly stressed the importance of giving effect to the
sovereign will in order to ensure the survival of our democracy. In any action
involving the possibility of a reversal of the popular electoral choice, this Court
must exert utmost effort to resolve the issues in a manner that would give effect to
the will of the majority, for it is merely sound public policy to cause elective
offices to be filled by those who are the choice of the majority. To successfully
challenge a winning candidate's qualifications, the petitioner must clearly
demonstrate that the ineligibility is so patently antagonistic to constitutional
and legal principles that overriding such ineligibility and thereby giving
effect to the apparent will of the people would ultimately create greater
prejudice to the very democratic institutions and juristic traditions that our
Constitution and laws so zealously protect and promote. [Emphasis supplied.]

With the conclusion that Mitra did not commit any material
misrepresentation in his COC, we see no reason in this case to appeal to the
primacy of the electorates will. We cannot deny, however, that the people
of Palawan have spoken in an election where residency qualification had been
squarely raised and their voice has erased any doubt about their verdict on Mitras
qualifications.

WHEREFORE, premises considered, we GRANT the petition
and ANNUL the assailed COMELEC Resolutions in Antonio V. Gonzales and
Orlando R. Balbon, Jr. v. Abraham Kahlil B. Mitra (SPA No. 09-038
[C]). We DENY the respondents petition to cancel Abraham Kahlil Mitras
Certificate of Candidacy. No costs.

SO ORDERED.


ARTURO D. BRION
Associate Justice





WE CONCUR:

I join the dissent of Mr. Justice Velasco
RENATO C. CORONA
Chief Justice




ANTONIO T. CARPIO
Associate Justice




PRESBITERO J. VELASCO, JR.
Associate Justice



TERESITA J. LEONARDO-DE CASTRO
Associate Justice




LUCAS P. BERSAMIN
Associate Justice




ROBERTO A. ABAD
Associate Justice




JOSE PORTUGAL PEREZ
Associate Justice



CONCHITA CARPIO
MORALES
Associate Justice




ANTONIO EDUARDO B. NACHURA
Associate Justice



DIOSDADO M. PERALTA
Associate Justice




MARIANO C. DEL CASTILLO
Associate Justice




MARTIN S. VILLARAMA, JR.
Associate Justice




JOSE CATRAL MENDOZA
Associate Justice







CERTIFICATION


Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.


RENATO C. CORONA
Chief
Justice



[1]
Section 3, Article X of the 1987 Constitution pertinently provides:

Section 3. The Congress shall enact a local government code which shall provide for the
qualifications, election, appointment and removal, term, salaries, powers and functions and duties
of local officials, and all other matters relating to the organization and operation of the local units.
[2]
Section 39 of the Local Government Code of 1991 states:

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 x x x 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.
[3]
Torayno, Sr. v. COMELEC, G.R. No. 137329, August 9, 2000, 337 SCRA 574, 584, citing Romualdez-
Marcos v. COMELEC, 248 SCRA 300, 313 (1995), per Kapunan, J.; citing Gallego v. Vera, 73 Phil. 453, 459
(1941).
[4]
Ibid.
[5]
Id. at 587.
[6]
Rollo, pp. 3-259.
[7]
Id. at 61.
[8]
Ibid.
[9]
Ibid.
[10]
Id. at 88-138.
[11]
Id. at 139-215.
[12]
Id. at 32-133.
[13]
Id. at 135.
[14]
Id. at 137.
[15]
Id. at 116-121.
[16]
Supra note 11.
[17]
Rollo, pp. 172-193.
[18]
Id. at 200-205.
[19]
Id. at 206-212.
[20]
Id. at 169-171.
[21]
Id. at 198.
[22]
Id. at 215.
[23]
See Attachments in the Respondents Memorandum filed before the COMELEC; and the Decision of the First
Division of the COMELEC, id. at 58-68.
[24]
Ibid.
[25]
52 Phil. 645, 651 (1928).
[26]
Rollo, p. 62.
[27]
Id. at 62-63.
[28]
Id. at 65-66.
[29]
Ibid.
[30]
Ibid.
[31]
Id. at 67.
[32]
Dated May 4, 2010. Chairman Jose A.R. Melo, no part; Commissioners Nicodemo T. Ferrer, Armando C.
Velasco, Elias R. Yusoph and Gregorio Y. Larrazabal, concurring; Commissioners Rene V. Sarmiento and
Lucenito N. Tagle, dissenting. Id. at 70-82.
[33]
Id. at 74-76.
[34]
Id. at 76-77.
[35]
Id. at 77-79.
[36]
G.R. No. 187478, December 21, 2009.
[37]
Rollo, pp. 79-81.
[38]
Id. at 83-85; supported by Commissioner Lucenito N. Tagle.
[39]
Id. at 84.
[40]
Id. at 17.
[41]
Id. at 21.
[42]
Id. at 25.
[43]
Id. at 28-29.
[44]
Id. at 42-43.
[45]
Resolution dated May 7, 2010; id. at 971-973.
[46]
Id. at 268-360.
[47]
See the Petitioners Manifestation dated May 24, 2010. The petitioner garnered 146, 847 votes while candidate
Jose C. Alvarez garnered the second highest with 131, 872 votes. Id. at 1012-1019. See also: COMELEC
Comment of June 2, 2010, attached to which is the Certificate of Proclamation for Mitra as Governor-elect. Id. at
1076-1078.
[48]
Supra note 45.
[49]
Supra note 46.
[50]
Id. at 1062-1080.
[51]
Id. at 1001-1005.
[52]
Id. at 1024-1061.
[53]
Section 2, Rule 64 of the Rules of Court states:
SEC. 2. Mode of review. A judgment or final order or resolution of the Commission on
Elections and the Commission on Audit may be brought by the aggrieved party to the Supreme
Court on certiorari under Rule 65, except as hereinafter provided.
[54]
Quintos v. COMELEC, 440 Phil. 1045 (2002).
[55]
Suliguin v. COMELEC, G.R. No. 166046, March 23, 2006, 485 SCRA 219.
[56]
Varias v. COMELEC, G.R. No. 189078, February 11, 2010.
[57]
Id., citing Section 5, Rule 134 of the Rules of Court.
[58]
Section 1, par. 2, Article VIII of the Constitution.
[59]
Supra note 56, citing De Guzman v. COMELEC, G.R. No. 159713, March 31, 2004, 426 SCRA 698.
[60]
See Velasco v. COMELEC, G.R. No. 180051, December 24, 2008, 575 SCRA 590, 602-603.
[61]
Id. at 603-604.
[62]
Id. at 604.
[63]
See Fernandez v. HRET, supra note 36.
[64]
Rollo, p. 132.
[65]
Ibid.
[66]
See Annex M of the Respondents Petition before the COMELEC dated December 5, 2009. Id. at 137.
[67]
In her Affidavit dated December 9, 2009, Lilia Camora alleged that:

2. Part of my duties as District Staff is to keep the records of Congressman Mitra including
the renewal of various documents, permits and license.
3. In February 2009, considering that there are documents requiring an updated
Community Tax Certificate of Congressman Mitra, I took it upon myself to secure a
Community Tax Certificate in Barangay Sta. Monica, PuertoPrincesa City for
Congressman Mitra without his knowledge and consent.
4. Although I am aware that he already changed his residence, considering that I do not
know the exact address of his new residence, I decided to place his old residence in
Puerto Princesa City in the Community Tax Certificate issued without any intention
of malice or to do harm to anyone but simply to comply with my record keeping duties.
5. In fact, the issued Community Tax Certificate does not bear any signature or thumbprint of
Congressman Mitra. [Emphasis supplied] Id. at 197.
[68]
Id. at 137.
[69]
Id. at 198.
[70]
Id. at 163.
[71]
See the Respondents Memorandum before the COMELEC en banc dated February 23, 2010. Id. at 925-930.
[72]
In his December 7, 2009 Sworn Statement, Ricardo Temple alleged that: (1) he is a Kagawad of Barangay
Isaub, Aborlan, Palawan; (2) he knew Congressman Abraham Kahlil B. Mitra (Cong. Mitra) since the year 2001;
(3) on January 2008, Cong. Mitra frequently visited Brgy. Isaub to establish his Pineapple Farm Project in a plot
of leased land near the Maligaya Feedmill; (4) in March 2008, Cong. Mitra told him that he intended to
permanently reside at Maligaya Feedmill and that he was interested in purchasing a lot where he could build his
new house; (5) after a few months, he sold a lot, belonging to his son located in Sitio Maligaya, Isaub, Aborlan,
Palawan which was situated near the Maligaya Feedmill and Farm to Cong. Mitra to which the latter paid in full
in April 2009; (6) on June 5, 2009, Rexter Temple and Cong. Mitra executed a Deed of Sale over the lot; (7)
starting April 2009, Cong. Mitra commenced the construction of a fence surrounding the lot, a farmhouse and a
water system; (8) in June 2009, Cong. Mitra initiated the construction of a concrete house on the lot; (9) in June
2009, Cong. Mitras fighting cocks arrived in Sitio Maligaya; and (10) at present, Cong. Mitra continues to reside
at Maligaya Feedmill pending the completion of his house in Sitio Maligaya. Id. at 172-173.
[73]
Id. at 163-164.
[74]
See also, in this regard, the Dissent of Commissioner Rene Sarmiento; id. at 83-85.
[75]
Supra note 23, at 65-66.
[76]
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, 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). Coquilla v. COMELEC, G.R. No. 151914, July 31, 2002, 385 SCRA 607,
616, citing Aquino v. COMELEC, 248 SCRA 400, 420 (1995).
[77]
See the Respondents Comment, supra note 46.
[78]
Supra note 45, at 333-336.
[79]
Supra note 3, at 587.
[80]
G.R. No. 191124, April 27, 2010.
[81]
Ibid.
[82]
Supra note 60.
[83]
Supra note 3, at 587-588.
[84]
Supra note 60.
[85]
Ibid.
[86]
Id. at 615.
[87]
G.R. Nos. 120295 and 123755, June 28, 1996, 257 SCRA 727, 771-772.
EN BANC
[G.R. No. 151914. July 31, 2002]
TEODULO M. COQUILLA, petitioner, vs. THE HON. COMMISSION ON
ELECTIONS and MR. NEIL M. ALVAREZ, respondents.
D E C I S I O N
MENDOZA, J .:
This is a petition for certiorari to set aside the resolution,
[1]
dated 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 COMELECen banc denying petitioners 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. 8171
[5]
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 petitioners
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 respondents 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
respondents petition and ordered the cancellation of petitioners certificate of candidacy
on the basis of the following findings:
Respondents 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 petitioners 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 COMELECs
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 same should be considered as having been filed late and should be dismissed.
Private respondents 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 COMELECs 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 petitioners 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 petitioners 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
movants 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,
[16]
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 petitioners 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 respondents petition
for cancellation of petitioners 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. COMELEC
[19]
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,
[21]
but 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 childs parents reside and continues until the same is
abandoned by acquisition of new domicile (domicile of choice).
[24]

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 13
[28]
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 petitioners 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 Elections
[33]
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 Courts 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 candidates lack of residency.
Petitioners 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 petitioners claim, are complete and intact in the records.
III.
The statement in petitioners 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
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.
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.
Indeed, it has been held that a candidates 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 so
[37]
or that the candidate was a natural-born Filipino when in fact he had
become an Australian citizen
[38]
constitutes a ground for the cancellation of a certificate
of candidacy. On the other hand, we held in Salcedo II v. COMELEC
[39]
that a candidate
who used her husbands 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 candidates qualification for an office for
which he filed the certificate of candidacy. This is a misrepresentation of a material fact
justifying the cancellation of petitioners certificate of candidacy. The cancellation of
petitioners 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.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Panganiban, Quisumbing,
Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona,
JJ., concur.



[1]
Per Presiding Commissioner Ralph C. Lantion and concurred in by Commissioners Mehol K. Sadain
and Florentino A. Tuazon, Jr.
[2]
The records do not disclose when petitioner became a U.S. citizen.
[3]
Records, pp. 167-169.
[4]
Petitioners U.S. passport for 1998-2008 shows the following dates of arrival in the Philippines and
dates of departure for the United States: arrival - October 15, 1998, departure - November 3, 1998; arrival
- December 20, 1998 (with no record of corresponding departure); arrival - October 16, 1999, departure -
November 1, 1999; arrival - June 23, 2000, departure - July 6, 2000; arrival - August 5, 2000 (Records,
pp. 227-228).
[5]
This law, entitled AN ACT PROVIDING FOR THE REPATRIATION OF FILIPINO WOMEN WHO HAVE
LOST THEIR PHILIPPINE CITIZENSHIP BY MARRIAGE TO ALIENS AND NATURAL-BORN
FILIPINOS, applies to former natural-born Filipinos who have lost their Philippine citizenship on account
of economic or political necessity. It would appear that petitioner was repatriated under this law on the
ground that he lost his Philippine citizenship on account of economic necessity.
[6]
Petition, Annex O, p. 56.
[7]
Id., Annex C, p. 34.
[8]
Id., Annex H, p. 46.
[9]
Resolution, p. 7-8; Rollo, pp. 30-31 (emphasis added).
[10]
Bulaong v. COMELEC, 220 SCRA 745 (1993).
[11]
Order, pp. 1-2; Rollo, pp. 32-33.
[12]
Siy v. Court of Appeals, 138 SCRA 536 (1985); Continental Cement Corporation v. Court of Appeals,
184 SCRA 728 (1990).
[13]
Guerra Enterprises Company, Inc. v. Court of First Instance of Lanao del Sur, 32 SCRA 314, 317
(1970).
[14]
Manila Trading v. Enriquez, 1 SCRA 1056 (1961); City of Cebu v. Mendoza, 62 SCRA 440 (1975);
Debuque v. Climaco, 99 SCRA 353 (1980); Garcia v. Echiverri, 132 SCRA 631 (1984); Commissioner of
Internal Revenue v. Island Garment Manufacturing Corporation, 153 SCRA 665 (1987); Vda. de
Espina v. Abaya, 196 SCRA 312 (1991).
[15]
A similar rule is found in Rule 19, 3 of the COMELEC Rules of Procedure.
[16]
Villarica v. Court of Appeals, 57 SCRA 24 (1974).
[17]
Jessena v. Hervas, 83 SCRA 799 (1978); Marikina Valley Development Corporation v. Flojo, 251
SCRA 87 (1995); Nieto v. De los Angeles, 109 SCRA 229 (1981).
[18]
Sembrano v. Ramirez, 166 SCRA 30 (1988); Pojas v. Gozo-Dadole, 192 SCRA 575 (1990); Bank of
the Philippine Islands v. Far East Molasses Corporation, 198 SCRA 689 (1991).
[19]
201 SCRA 253 (1991).
[20]
312 SCRA 447 (1999).
[21]
Uytengsu v. Republic, 95 Phil. 890, 894 (1954).
[22]
Nuval v. Guray, 52 Phil. 645 (1928); Gallego v. Verra, 73 Phil. 453 (1941); Romualdez v. RTC, Br. 7,
Tacloban City, 226 SCRA 408 (1993).
[23]
Aquino v. COMELEC, 248 SCRA 400, 420 (1995).
[24]
25 Am. Jur. 2d, 11.
[25]
191 SCRA 229 (1990).
[26]
Petition, p. 6; Rollo, p. 8.
[27]
Id., pp. 9-11; id., pp. 11-13.
[28]
This provision states:
Under the conditions set forth in this Act, there may be admitted in the Philippines immigrants, termed
quota immigrants not in excess of fifty (50) of any one nationality or without nationality for any one
calendar year, except that the following immigrants, termed nonquota immigrants, may be admitted
without regard to such numerical limitations.
The corresponding Philippine Consular representative abroad shall investigate and certify the eligibility of
a quota immigrant previous to his admission into the Philippines. Qualified and desirable aliens who are in
the Philippines under temporary stay may be admitted within the quota, subject to the provisions of the
last paragraph of section 9 of this Act.
(a) The wife or the husband or the unmarried child under twenty-one years of age of a Philippine citizen, if
accompanying or following to join such citizen;
(b) A child of alien parents born during the temporary visit abroad of the mother, the mother having been
previously lawfully admitted into the Philippine for permanent residence, if the child is accompanying or
coming to join a parent and applies for admission within five years from the date of its birth;
(c) A child born subsequent to the issuance of the immigration visa of the accompanying parent, the visa
not having expired;
(d) A woman who was citizen of the Philippines and who lost her citizenship because of her marriage to
an alien or by reason of the loss of Philippine citizenship by her husband, and her unmarried child under
twenty-one years of age, if accompanying or following to join her;
(e) A person previously lawfully admitted into the Philippines for permanent residence, who is returning
from a temporary visit abroad to an unrelinquished residence in the Philippines, (As amended by Sec. 5,
Rep. Act No. 503.)
(f) The wife or the husband or the unmarried child under twenty-one years of age, of an alien lawfully
admitted into the Philippines for permanent residence prior to the date on which this Act becomes
effective and who is resident therein, if such wife, husband, or child applies for admission within a period
of two years following the date on which this Act becomes effective;
(g) A natural born citizen of the Philippines, who has been naturalized in a foreign country, and is
returning to the Philippines for permanent residence, including the spouse and minor children, shall be
considered a non-quota immigrant for purposes of entering the Philippines (As amended by Rep. Act No.
4376, approved June 19, 1965).
[29]
See R. Ledesma, An Outline of Philippine Immigration and Citizenship Laws 135 (1999).
[30]
C.A. No. 63, 2.
[31]
Records, pp. 227-228.
[32]
The COMELEC considered November 10, 2000 as the date of petitioners repatriation. Section 2 of
R.A. No. 8171 provides, however, Repatriation shall be effected by taking the necessary oath of
allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau
of Immigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of
registration and issue the certificate of identification as Filipino citizen to the repatriated citizen.
[33]
257 SCRA 727 (1996).
[34]
G.R. No. 142840, May 7, 2001.
[35]
54 Phil. 645 (1928).
[36]
248 SCRA 400, 429 (1995).
[37]
Abella v. Larazabal, 180 SCRA 509 (1989); Abella v. COMELEC, 201 SCRA 253 (1991).
[38]
Labo, Jr. v. COMELEC, 211 SCRA 297 (1992).
[39]
312 SCRA 447 (1999).









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Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 119976 September 18, 1995
IMELDA ROMUALDEZ-MARCOS, petitioner,
vs.
COMMISSION ON ELECTIONS and CIRILO ROY MONTEJO, respondents.

KAPUNAN, J .:
A constitutional provision should be construed as to give it effective operation and suppress the mischief at which it is
aimed.
1
The 1987 Constitution mandates that an aspirant for election to the House of Representatives be "a registered voter in
the district in which he shall be elected, and a resident thereof for a period of not less than one year immediately preceding the
election."
2
The mischief which this provision reproduced verbatim from the 1973 Constitution seeks to prevent is the
possibility of a "stranger or newcomer unacquainted with the conditions and needs of a community and not identified with the
latter, from an elective office to serve that community."
3

Petitioner Imelda Romualdez-Marcos filed her Certificate of Candidacy for the position of Representative of the First District of
Leyte with the Provincial Election Supervisor on March 8, 1995, providing the following information in item no. 8:
4

RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO BE ELECTED IMMEDIATELY PRECEDING
THE ELECTION: __________ Years and seven Months.
On March 23, 1995, private respondent Cirilo Roy Montejo, the incumbent Representative of the First District of Leyte and a
candidate for the same position, filed a "Petition for Cancellation and Disqualification"
5
with the Commission on Elections alleging
that petitioner did not meet the constitutional requirement for residency. In his petition, private respondent contended that Mrs.
Marcos lacked the Constitution's one year residency requirement for candidates for the House of Representatives on the
evidence of declarations made by her in Voter Registration Record 94-No. 3349772
6
and in her Certificate of Candidacy. He
prayed that "an order be issued declaring (petitioner) disqualified and canceling the certificate of candidacy."
7

On March 29, 1995, petitioner filed an Amended/Corrected Certificate of Candidacy, changing the entry "seven" months to "since
childhood" in item no. 8 of the amended certificate.
8
On the same day, the Provincial Election Supervisor of Leyte informed
petitioner that:
[T]his office cannot receive or accept the aforementioned Certificate of Candidacy on the ground that it is filed
out of time, the deadline for the filing of the same having already lapsed on March 20, 1995. The
Corrected/Amended Certificate of Candidacy should have been filed on or before the March 20, 1995
deadline.
9

Consequently, petitioner filed the Amended/Corrected Certificate of Candidacy with the COMELEC's Head Office in Intramuros,
Manila on
March 31, 1995. Her Answer to private respondent's petition in SPA No. 95-009 was likewise filed with the head office on the
same day. In said Answer, petitioner averred that the entry of the word "seven" in her original Certificate of Candidacy was the
result of an "honest misinterpretation"
10
which she sought to rectify by adding the words "since childhood" in her
Amended/Corrected Certificate of Candidacy and that "she has always maintained Tacloban City as her domicile or
residence.
11
Impugning respondent's motive in filing the petition seeking her disqualification, she noted that:
When respondent (petitioner herein) announced that she was intending to register as a voter in Tacloban City
and run for Congress in the First District of Leyte, petitioner immediately opposed her intended registration by
writing a letter stating that "she is not a resident of said city but of Barangay Olot, Tolosa, Leyte. After
respondent had registered as a voter in Tolosa following completion of her six month actual residence therein,
petitioner filed a petition with the COMELEC to transfer the town of Tolosa from the First District to the Second
District and pursued such a move up to the Supreme Court, his purpose being to remove respondent as
petitioner's opponent in the congressional election in the First District. He also filed a bill, along with other Leyte
Congressmen, seeking the creation of another legislative district to remove the town of Tolosa out of the First
District, to achieve his purpose. However, such bill did not pass the Senate. Having failed on such moves,
petitioner now filed the instant petition for the same objective, as it is obvious that he is afraid to submit along
with respondent for the judgment and verdict of the electorate of the First District of Leyte in an honest, orderly,
peaceful, free and clean elections on May 8, 1995.
12

On April 24, 1995, the Second Division of the Commission on Elections (COMELEC), by a vote of 2 to 1,
13
came up with a
Resolution 1) finding private respondent's Petition for Disqualification in SPA 95-009 meritorious; 2) striking off petitioner's
Corrected/Amended Certificate of Candidacy of March 31, 1995; and 3) canceling her original Certificate of Candidacy.
14
Dealing
with two primary issues, namely, the validity of amending the original Certificate of Candidacy after the lapse of the deadline for
filing certificates of candidacy, and petitioner's compliance with the one year residency requirement, the Second Division held:
Respondent raised the affirmative defense in her Answer that the printed word "Seven" (months) was a
result of an "honest misinterpretation or honest mistake" on her part and, therefore, an amendment should
subsequently be allowed. She averred that she thought that what was asked was her "actual and
physical" presence in Tolosa and not residence of origin or domicile in the First Legislative District, to
which she could have responded "since childhood." In an accompanying affidavit, she stated that her
domicile is Tacloban City, a component of the First District, to which she always intended to return
whenever absent and which she has never abandoned. Furthermore, in her memorandum, she tried to
discredit petitioner's theory of disqualification by alleging that she has been a resident of the First
Legislative District of Leyte since childhood, although she only became a resident of the Municipality of
Tolosa for seven months. She asserts that she has always been a resident of Tacloban City, a
component of the First District, before coming to the Municipality of Tolosa.
Along this point, it is interesting to note that prior to her registration in Tolosa, respondent announced that
she would be registering in Tacloban City so that she can be a candidate for the District. However, this
intention was rebuffed when petitioner wrote the Election Officer of Tacloban not to allow respondent
since she is a resident of Tolosa and not Tacloban. She never disputed this claim and instead implicitly
acceded to it by registering in Tolosa.
This incident belies respondent's claim of "honest misinterpretation or honest mistake." Besides, the
Certificate of Candidacy only asks for RESIDENCE. Since on the basis of her Answer, she was quite
aware of "residence of origin" which she interprets to be Tacloban City, it is curious why she did not cite
Tacloban City in her Certificate of Candidacy. Her explanation that she thought what was asked was her
actual and physical presence in Tolosa is not easy to believe because there is none in the question that
insinuates about Tolosa. In fact, item no. 8 in the Certificate of Candidacy speaks clearly of "Residency in
the CONSTITUENCY where I seek to be elected immediately preceding the election." Thus, the
explanation of respondent fails to be persuasive.
From the foregoing, respondent's defense of an honest mistake or misinterpretation, therefore, is devoid
of merit.
To further buttress respondent's contention that an amendment may be made, she cited the case ofAlialy
v. COMELEC (2 SCRA 957). The reliance of respondent on the case of Alialy is misplaced. The case only
applies to the "inconsequential deviations which cannot affect the result of the election, or deviations from
provisions intended primarily to secure timely and orderly conduct of elections." The Supreme Court in
that case considered the amendment only as a matter of form. But in the instant case, the amendment
cannot be considered as a matter of form or an inconsequential deviation. The change in the number of
years of residence in the place where respondent seeks to be elected is a substantial matter which
determines her qualification as a candidacy, specially those intended to suppress, accurate material
representation in the original certificate which adversely affects the filer. To admit the amended certificate
is to condone the evils brought by the shifting minds of manipulating candidate, of the detriment of the
integrity of the election.
Moreover, to allow respondent to change the seven (7) month period of her residency in order to prolong
it by claiming it was "since childhood" is to allow an untruthfulness to be committed before this
Commission. The arithmetical accuracy of the 7 months residency the respondent indicated in her
certificate of candidacy can be gleaned from her entry in her Voter's Registration Record accomplished on
January 28, 1995 which reflects that she is a resident of Brgy. Olot, Tolosa, Leyte for 6 months at the time
of the said registration (Annex A, Petition). Said accuracy is further buttressed by her letter to the election
officer of San Juan, Metro Manila, dated August 24, 1994, requesting for the cancellation of her
registration in the Permanent List of Voters thereat so that she can be re-registered or transferred to Brgy.
Olot, Tolosa, Leyte. The dates of these three (3) different documents show the respondent's consistent
conviction that she has transferred her residence to Olot, Tolosa, Leyte from Metro Manila only for such
limited period of time, starting in the last week of August 1994 which on March 8, 1995 will only sum up to
7 months. The Commission, therefore, cannot be persuaded to believe in the respondent's contention that
it was an error.
xxx xxx xxx
Based on these reasons the Amended/Corrected Certificate of Candidacy cannot be admitted by this
Commission.
xxx xxx xxx
Anent the second issue, and based on the foregoing discussion, it is clear that respondent has not
complied with the one year residency requirement of the Constitution.
In election cases, the term "residence" has always been considered as synonymous with "domicile" which
imports not only the intention to reside in a fixed place but also personal presence in-that place, coupled
with conduct indicative of such intention. Domicile denotes a fixed permanent residence to which when
absent for business or pleasure, or for like reasons, one intends to return. (Perfecto Faypon vs. Eliseo
Quirino, 96 Phil 294; Romualdez vs. RTC-Tacloban, 226 SCRA 408). In respondent's case, when she
returned to the Philippines in 1991, the residence she chose was not Tacloban but San Juan, Metro
Manila. Thus, her animus revertendi is pointed to Metro Manila and not Tacloban.
This Division is aware that her claim that she has been a resident of the First District since childhood is
nothing more than to give her a color of qualification where she is otherwise constitutionally disqualified. It
cannot hold ground in the face of the facts admitted by the respondent in her affidavit. Except for the time
that she studied and worked for some years after graduation in Tacloban City, she continuously lived in
Manila. In 1959, after her husband was elected Senator, she lived and resided in San Juan, Metro Manila
where she was a registered voter. In 1965, she lived in San Miguel, Manila where she was again a
registered voter. In 1978, she served as member of the Batasang Pambansa as the representative of the
City of Manila and later on served as the Governor of Metro Manila. She could not have served these
positions if she had not been a resident of the City of Manila. Furthermore, when she filed her certificate
of candidacy for the office of the President in 1992, she claimed to be a resident of San Juan, Metro
Manila. As a matter of fact on August 24, 1994, respondent wrote a letter with the election officer of San
Juan, Metro Manila requesting for the cancellation of her registration in the permanent list of voters that
she may be re-registered or transferred to Barangay Olot, Tolosa, Leyte. These facts manifest that she
could not have been a resident of Tacloban City since childhood up to the time she filed her certificate of
candidacy because she became a resident of many places, including Metro Manila. This debunks her
claim that prior to her residence in Tolosa, Leyte, she was a resident of the First Legislative District of
Leyte since childhood.
In this case, respondent's conduct reveals her lack of intention to make Tacloban her domicile. She
registered as a voter in different places and on several occasions declared that she was a resident of
Manila. Although she spent her school days in Tacloban, she is considered to have abandoned such
place when she chose to stay and reside in other different places. In the case of Romualdez vs. RTC(226
SCRA 408) the Court explained how one acquires a new domicile by choice. There must concur: (1)
residence or bodily presence in the new locality; (2) intention to remain there; and (3) intention to
abandon the old domicile. In other words there must basically be animus manendi with animus non
revertendi. When respondent chose to stay in Ilocos and later on in Manila, coupled with her intention to
stay there by registering as a voter there and expressly declaring that she is a resident of that place, she
is deemed to have abandoned Tacloban City, where she spent her childhood and school days, as her
place of domicile.
Pure intention to reside in that place is not sufficient, there must likewise be conduct indicative of such
intention. Respondent's statements to the effect that she has always intended to return to Tacloban,
without the accompanying conduct to prove that intention, is not conclusive of her choice of residence.
Respondent has not presented any evidence to show that her conduct, one year prior the election,
showed intention to reside in Tacloban. Worse, what was evident was that prior to her residence in
Tolosa, she had been a resident of Manila.
It is evident from these circumstances that she was not a resident of the First District of Leyte "since
childhood."
To further support the assertion that she could have not been a resident of the First District of Leyte for more
than one year, petitioner correctly pointed out that on January 28, 1995 respondent registered as a voter at
precinct No. 18-A of Olot, Tolosa, Leyte. In doing so, she placed in her Voter Registration Record that she
resided in the municipality of Tolosa for a period of six months. This may be inconsequential as argued by the
respondent since it refers only to her residence in Tolosa, Leyte. But her failure to prove that she was a
resident of the First District of Leyte prior to her residence in Tolosa leaves nothing but a convincing proof that
she had been a resident of the district for six months only.
15

In a Resolution promulgated a day before the May 8, 1995 elections, the COMELEC en banc denied petitioner's Motion for
Reconsideration
16
of the April 24, 1995 Resolution declaring her not qualified to run for the position of Member of the House of
Representatives for the First Legislative District of Leyte.
17
The Resolution tersely stated:
After deliberating on the Motion for Reconsideration, the Commission RESOLVED to DENY it, no new
substantial matters having been raised therein to warrant re-examination of the resolution granting the petition
for disqualification.
18

On May 11, 1995, the COMELEC issued a Resolution allowing petitioner's proclamation should the results of the canvass show
that she obtained the highest number of votes in the congressional elections in the First District of Leyte. On the same day,
however, the COMELEC reversed itself and issued a second Resolution directing that the proclamation of petitioner be
suspended in the event that she obtains the highest number of votes.
19

In a Supplemental Petition dated 25 May 1995, petitioner averred that she was the overwhelming winner of the elections for the
congressional seat in the First District of Leyte held May 8, 1995 based on the canvass completed by the Provincial Board of
Canvassers on May 14, 1995. Petitioner alleged that the canvass showed that she obtained a total of 70,471 votes compared to
the 36,833 votes received by Respondent Montejo. A copy of said Certificate of Canvass was annexed to the Supplemental
Petition.
On account of the Resolutions disqualifying petitioner from running for the congressional seat of the First District of Leyte and the
public respondent's Resolution suspending her proclamation, petitioner comes to this court for relief.
Petitioner raises several issues in her Original and Supplemental Petitions. The principal issues may be classified into two
general areas:
I. The issue of Petitioner's qualifications
Whether or not petitioner was a resident, for election purposes, of the First District of Leyte for a period of
one year at the time of the May 9, 1995 elections.
II. The Jurisdictional Issue
a) Prior to the elections
Whether or not the COMELEC properly exercised its jurisdiction in disqualifying petitioner outside the
period mandated by the Omnibus Election Code for disqualification cases under Article 78 of the said
Code.
b) After the Elections
Whether or not the House of Representatives Electoral Tribunal assumed exclusive jurisdiction over the
question of petitioner's qualifications after the May 8, 1995 elections.
I. Petitioner's qualification
A perusal of the Resolution of the COMELEC's Second Division reveals a startling confusion in the application of settled
concepts of "Domicile" and "Residence" in election law. While the COMELEC seems to be in agreement with the general
proposition that for the purposes of election law, residence is synonymous with domicile, the Resolution reveals a tendency to
substitute or mistake the concept of domicile for actual residence, a conception not intended for the purpose of determining a
candidate's qualifications for election to the House of Representatives as required by the 1987 Constitution. As it were,
residence, for the purpose of meeting the qualification for an elective position, has a settled meaning in our jurisdiction.
Article 50 of the Civil Code decrees that "[f]or the exercise of civil rights and the fulfillment of civil obligations, the domicile of
natural persons is their place of habitual residence." In Ong vs. Republic
20
this court took the concept of domicile to mean an
individual's "permanent home", "a place to which, whenever absent for business or for pleasure, one intends to return, and
depends on facts and circumstances in the sense that they disclose intent."
21
Based on the foregoing, domicile includes the twin
elements of "the fact of residing or physical presence in a fixed place" and animus manendi, or the intention of returning there
permanently.
Residence, in its ordinary conception, implies the factual relationship of an individual to a certain place. It is the physical
presence of a person in a given area, community or country. The essential distinction between residence and domicile in law is
that residence involves the intent to leave when the purpose for which the resident has taken up his abode ends. One may seek
a place for purposes such as pleasure, business, or health. If a person's intent be to remain, it becomes his domicile; if his intent
is to leave as soon as his purpose is established it is residence.
22
It is thus, quite perfectly normal for an individual to have
different residences in various places. However, a person can only have a single domicile, unless, for various reasons, he
successfully abandons his domicile in favor of another domicile of choice. In Uytengsu vs. Republic,
23
we laid this distinction
quite clearly:
There is a difference between domicile and residence. "Residence" is used to indicate a place of abode,
whether permanent or temporary; "domicile" denotes a fixed permanent residence to which, when absent,
one has the intention of returning. A man may have a residence in one place and a domicile in another.
Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited
time. A man can have but one domicile for the same purpose at any time, but he may have numerous
places of residence. His place of residence is generally his place of domicile, but it is not by any means
necessarily so since no length of residence without intention of remaining will constitute domicile.
For political purposes the concepts of residence and domicile are dictated by the peculiar criteria of political laws. As these
concepts have evolved in our election law, what has clearly and unequivocally emerged is the fact that residence for election
purposes is used synonymously with domicile.
In Nuval vs. Guray,
24
the Court held that "the term residence. . . is synonymous with domicile which imports not only intention to
reside in a fixed place, but also personal presence in that place, coupled with conduct indicative of such intention."
25
Larena
vs. Teves
26
reiterated the same doctrine in a case involving the qualifications of the respondent therein to the post of Municipal
President of Dumaguete, Negros Oriental. Faypon vs. Quirino,
27
held that the absence from residence to pursue studies or
practice a profession or registration as a voter other than in the place where one is elected does not constitute loss of
residence.
28
So settled is the concept (of domicile) in our election law that in these and other election law cases, this Court has
stated that the mere absence of an individual from his permanent residence without the intention to abandon it does not result in
a loss or change of domicile.
The deliberations of the 1987 Constitution on the residence qualification for certain elective positions have placed beyond doubt
the principle that when the Constitution speaks of "residence" in election law, it actually means only "domicile" to wit:
Mr. Nolledo: With respect to Section 5, I remember that in the 1971 Constitutional Convention, there was
an attempt to require residence in the place not less than one year immediately preceding the day of the
elections. So my question is: What is the Committee's concept of residence of a candidate for the
legislature? Is it actual residence or is it the concept of domicile or constructive residence?
Mr. Davide: Madame President, insofar as the regular members of the National Assembly are concerned, the
proposed section merely provides, among others, "and a resident thereof", that is, in the district for a period of
not less than one year preceding the day of the election. This was in effect lifted from the 1973 Constitution, the
interpretation given to it was domicile.
29

xxx xxx xxx
Mrs. Rosario Braid: The next question is on Section 7, page 2. I think Commissioner Nolledo has raised
the same point that "resident" has been interpreted at times as a matter of intention rather than actual
residence.
Mr. De los Reyes: Domicile.
Ms. Rosario Braid: Yes, So, would the gentleman consider at the proper time to go back to actual
residence rather than mere intention to reside?
Mr. De los Reyes: But we might encounter some difficulty especially considering that a provision in the
Constitution in the Article on Suffrage says that Filipinos living abroad may vote as enacted by law. So, we
have to stick to the original concept that it should be by domicile and not physical residence.
30

In Co vs. Electoral Tribunal of the House of Representatives,
31
this Court concluded that the framers of the 1987 Constitution
obviously adhered to the definition given to the term residence in election law, regarding it as having the same meaning as
domicile.
32

In the light of the principles just discussed, has petitioner Imelda Romualdez Marcos satisfied the residency requirement
mandated by Article VI, Sec. 6 of the 1987 Constitution? Of what significance is the questioned entry in petitioner's Certificate of
Candidacy stating her residence in the First Legislative District of Leyte as seven (7) months?
It is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or not
and individual has satisfied the constitution's residency qualification requirement. The said statement becomes material only
when there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a
candidate ineligible. It would be plainly ridiculous for a candidate to deliberately and knowingly make a statement in a certificate
of candidacy which would lead to his or her disqualification.
It stands to reason therefore, that petitioner merely committed an honest mistake in jotting the word "seven" in the space
provided for the residency qualification requirement. The circumstances leading to her filing the questioned entry obviously
resulted in the subsequent confusion which prompted petitioner to write down the period of her actual stay in Tolosa, Leyte
instead of her period of residence in the First district, which was "since childhood" in the space provided. These circumstances
and events are amply detailed in the COMELEC's Second Division's questioned resolution, albeit with a different interpretation.
For instance, when herein petitioner announced that she would be registering in Tacloban City to make her eligible to run in the
First District, private respondent Montejo opposed the same, claiming that petitioner was a resident of Tolosa, not Tacloban City.
Petitioner then registered in her place of actual residence in the First District, which is Tolosa, Leyte, a fact which she
subsequently noted down in her Certificate of Candidacy. A close look at said certificate would reveal the possible source of the
confusion: the entry for residence (Item No. 7) is followed immediately by the entry for residence in the constituency where a
candidate seeks election thus:
7. RESIDENCE (complete Address): Brgy. Olot, Tolosa, Leyte
POST OFFICE ADDRESS FOR ELECTION PURPOSES: Brgy. Olot, Tolosa, Leyte
8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK TO
BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:_________ Years and Seven Months.
Having been forced by private respondent to register in her place of actual residence in Leyte instead of petitioner's claimed
domicile, it appears that petitioner had jotted down her period of stay in her legal residence or domicile. The juxtaposition of
entries in Item 7 and Item 8 the first requiring actual residence and the second requiring domicile coupled with the
circumstances surrounding petitioner's registration as a voter in Tolosa obviously led to her writing down an unintended entry for
which she could be disqualified. This honest mistake should not, however, be allowed to negate the fact of residence in the First
District if such fact were established by means more convincing than a mere entry on a piece of paper.
We now proceed to the matter of petitioner's domicile.
In support of its asseveration that petitioner's domicile could not possibly be in the First District of Leyte, the Second Division of
the COMELEC, in its assailed Resolution of April 24,1995 maintains that "except for the time when (petitioner) studied and
worked for some years after graduation in Tacloban City, she continuously lived in Manila." The Resolution additionally cites
certain facts as indicative of the fact that petitioner's domicile ought to be any place where she lived in the last few decades
except Tacloban, Leyte. First, according to the Resolution, petitioner, in 1959, resided in San Juan, Metro Manila where she was
also registered voter. Then, in 1965, following the election of her husband to the Philippine presidency, she lived in San Miguel,
Manila where she as a voter. In 1978 and thereafter, she served as a member of the Batasang Pambansa and Governor of
Metro Manila. "She could not, have served these positions if she had not been a resident of Metro Manila," the COMELEC
stressed. Here is where the confusion lies.
We have stated, many times in the past, that an individual does not lose his domicile even if he has lived and maintained
residences in different places. Residence, it bears repeating, implies a factual relationship to a given place for various purposes.
The absence from legal residence or domicile to pursue a profession, to study or to do other things of a temporary or semi-
permanent nature does not constitute loss of residence. Thus, the assertion by the COMELEC that "she could not have been a
resident of Tacloban City since childhood up to the time she filed her certificate of candidacy because she became a resident of
many places" flies in the face of settled jurisprudence in which this Court carefully made distinctions between (actual) residence
and domicile for election law purposes. In Larena vs. Teves,
33
supra, we stressed:
[T]his court is of the opinion and so holds that a person who has his own house wherein he lives with his
family in a municipality without having ever had the intention of abandoning it, and without having lived
either alone or with his family in another municipality, has his residence in the former municipality,
notwithstanding his having registered as an elector in the other municipality in question and having been
a candidate for various insular and provincial positions, stating every time that he is a resident of the latter
municipality.
More significantly, in Faypon vs. Quirino,
34
We explained that:
A citizen may leave the place of his birth to look for "greener pastures," as the saying goes, to improve his
lot, and that, of course includes study in other places, practice of his avocation, or engaging in business.
When an election is to be held, the citizen who left his birthplace to improve his lot may desire to return to
his native town to cast his ballot but for professional or business reasons, or for any other reason, he may
not absent himself from his professional or business activities; so there he registers himself as voter as he
has the qualifications to be one and is not willing to give up or lose the opportunity to choose the officials
who are to run the government especially in national elections. Despite such registration, the animus
revertendi to his home, to his domicile or residence of origin has not forsaken him. This may be the
explanation why the registration of a voter in a place other than his residence of origin has not been
deemed sufficient to constitute abandonment or loss of such residence. It finds justification in the natural
desire and longing of every person to return to his place of birth. This strong feeling of attachment to the
place of one's birth must be overcome by positive proof of abandonment for another.
From the foregoing, it can be concluded that in its above-cited statements supporting its proposition that petitioner was ineligible
to run for the position of Representative of the First District of Leyte, the COMELEC was obviously referring to petitioner's various
places of (actual) residence, not her domicile. In doing so, it not only ignored settled jurisprudence on residence in election law
and the deliberations of the constitutional commission but also the provisions of the Omnibus Election Code (B.P. 881).
35

What is undeniable, however, are the following set of facts which establish the fact of petitioner's domicile, which we lift verbatim
from the COMELEC's Second Division's assailed Resolution:
36

In or about 1938 when respondent was a little over 8 years old, she established her domicile in Tacloban,
Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to 1949 when she
graduated from high school. She pursued her college studies in St. Paul's College, now Divine Word
University in Tacloban, where she earned her degree in Education. Thereafter, she taught in the Leyte
Chinese School, still in Tacloban City. In 1952 she went to Manila to work with her cousin, the late
speaker Daniel Z. Romualdez in his office in the House of Representatives. In 1954, she married ex-
President Ferdinand E. Marcos when he was still a congressman of Ilocos Norte and registered there as a
voter. When her husband was elected Senator of the Republic in 1959, she and her husband lived
together in San Juan, Rizal where she registered as a voter. In 1965, when her husband was elected
President of the Republic of the Philippines, she lived with him in Malacanang Palace and registered as a
voter in San Miguel, Manila.
[I]n February 1986 (she claimed that) she and her family were abducted and kidnapped to Honolulu,
Hawaii. In November 1991, she came home to Manila. In 1992, respondent ran for election as President
of the Philippines and filed her Certificate of Candidacy wherein she indicated that she is a resident and
registered voter of San Juan, Metro Manila.
Applying the principles discussed to the facts found by COMELEC, what is inescapable is that petitioner held various residences
for different purposes during the last four decades. None of these purposes unequivocally point to an intention to abandon her
domicile of origin in Tacloban, Leyte. Moreover, while petitioner was born in Manila, as a minor she naturally followed the
domicile of her parents. She grew up in Tacloban, reached her adulthood there and eventually established residence in different
parts of the country for various reasons. Even during her husband's presidency, at the height of the Marcos Regime's powers,
petitioner kept her close ties to her domicile of origin by establishing residences in Tacloban, celebrating her birthdays and other
important personal milestones in her home province, instituting well-publicized projects for the benefit of her province and
hometown, and establishing a political power base where her siblings and close relatives held positions of power either through
the ballot or by appointment, always with either her influence or consent. These well-publicized ties to her domicile of origin are
part of the history and lore of the quarter century of Marcos power in our country. Either they were entirely ignored in the
COMELEC'S Resolutions, or the majority of the COMELEC did not know what the rest of the country always knew: the fact of
petitioner's domicile in Tacloban, Leyte.
Private respondent in his Comment, contends that Tacloban was not petitioner's domicile of origin because she did not live there
until she was eight years old. He avers that after leaving the place in 1952, she "abandoned her residency (sic) therein for many
years and . . . (could not) re-establish her domicile in said place by merely expressing her intention to live there again." We do
not agree.
First, minor follows the domicile of his parents. As domicile, once acquired is retained until a new one is gained, it follows that in
spite of the fact of petitioner's being born in Manila, Tacloban, Leyte was her domicile of origin by operation of law. This domicile
was not established only when her father brought his family back to Leyte contrary to private respondent's averments.
Second, domicile of origin is not easily lost. To successfully effect a change of domicile, one must demonstrate:
37

1. An actual removal or an actual change of domicile;
2. A bona fide intention of abandoning the former place of residence and establishing a new one; and
3. Acts which correspond with the purpose.
In the absence of clear and positive proof based on these criteria, the residence of origin should be deemed to continue. Only
with evidence showing concurrence of all three requirements can the presumption of continuity or residence be rebutted, for a
change of residence requires an actual and deliberate abandonment, and one cannot have two legal residences at the same
time.
38
In the case at bench, the evidence adduced by private respondent plainly lacks the degree of persuasiveness required to
convince this court that an abandonment of domicile of origin in favor of a domicile of choice indeed occurred. To effect an
abandonment requires the voluntary act of relinquishing petitioner's former domicile with an intent to supplant the former domicile
with one of her own choosing (domicilium voluntarium).
In this connection, it cannot be correctly argued that petitioner lost her domicile of origin by operation of law as a result of her
marriage to the late President Ferdinand E. Marcos in 1952. For there is a clearly established distinction between the Civil Code
concepts of "domicile" and "residence."
39
The presumption that the wife automatically gains the husband's domicile by operation
of law upon marriage cannot be inferred from the use of the term "residence" in Article 110 of the Civil Code because the Civil
Code is one area where the two concepts are well delineated. Dr. Arturo Tolentino, writing on this specific area explains:
In the Civil Code, there is an obvious difference between domicile and residence. Both terms imply relations
between a person and a place; but in residence, the relation is one of fact while in domicile it is legal or
juridical, independent of the necessity of physical presence.
40

Article 110 of the Civil Code provides:
Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from
living with the husband if he should live abroad unless in the service of the Republic.
A survey of jurisprudence relating to Article 110 or to the concepts of domicile or residence as they affect the female spouse
upon marriage yields nothing which would suggest that the female spouse automatically loses her domicile of origin in favor of
the husband's choice of residence upon marriage.
Article 110 is a virtual restatement of Article 58 of the Spanish Civil Code of 1889 which states:
La mujer esta obligada a seguir a su marido donde quiera que fije su residencia. Los Tribunales, sin embargo,
podran con justa causa eximirla de esta obligacion cuando el marido transende su residencia a ultramar o' a
pais extranjero.
Note the use of the phrase "donde quiera su fije de residencia" in the aforequoted article, which means wherever (the
husband) wishes to establish residence. This part of the article clearly contemplates only actual residence because it refers to a
positive act of fixing a family home or residence. Moreover, this interpretation is further strengthened by the phrase "cuando el
marido translade su residencia" in the same provision which means, "when the husband shall transfer his residence," referring to
another positive act of relocating the family to another home or place of actual residence. The article obviously cannot be
understood to refer to domicile which is a fixed,
fairly-permanent concept when it plainly connotes the possibility of transferring from one place to another not only once, but as
often as the husband may deem fit to move his family, a circumstance more consistent with the concept of actual residence.
The right of the husband to fix the actual residence is in harmony with the intention of the law to strengthen and unify the family,
recognizing the fact that the husband and the wife bring into the marriage different domiciles (of origin). This difference could, for
the sake of family unity, be reconciled only by allowing the husband to fix a single place of actual residence.
Very significantly, Article 110 of the Civil Code is found under Title V under the heading: RIGHTS AND OBLIGATIONS
BETWEEN HUSBAND AND WIFE. Immediately preceding Article 110 is Article 109 which obliges the husband and wife to live
together, thus:
Art. 109. The husband and wife are obligated to live together, observe mutual respect and fidelity and
render mutual help and support.
The duty to live together can only be fulfilled if the husband and wife are physically together. This takes into account the
situations where the couple has many residences (as in the case of the petitioner). If the husband has to stay in or transfer to any
one of their residences, the wife should necessarily be with him in order that they may "live together." Hence, it is illogical to
conclude that Art. 110 refers to "domicile" and not to "residence." Otherwise, we shall be faced with a situation where the wife is
left in the domicile while the husband, for professional or other reasons, stays in one of their (various) residences. As Dr.
Tolentino further explains:
Residence and Domicile Whether the word "residence" as used with reference to particular matters is
synonymous with "domicile" is a question of some difficulty, and the ultimate decision must be made from
a consideration of the purpose and intent with which the word is used. Sometimes they are used
synonymously, at other times they are distinguished from one another.
xxx xxx xxx
Residence in the civil law is a material fact, referring to the physical presence of a person in a place. A person
can have two or more residences, such as a country residence and a city residence. Residence is acquired by
living in place; on the other hand, domicile can exist without actually living in the place. The important thing for
domicile is that, once residence has been established in one place, there be an intention to stay there
permanently, even if residence is also established in some other
place.
41

In fact, even the matter of a common residence between the husband and the wife during the marriage is not an iron-clad
principle; In cases applying the Civil Code on the question of a common matrimonial residence, our jurisprudence has recognized
certain situations
42
where the spouses could not be compelled to live with each other such that the wife is either allowed to
maintain a residence different from that of her husband or, for obviously practical reasons, revert to her original domicile (apart
from being allowed to opt for a new one). In De la Vina vs. Villareal
43
this Court held that "[a] married woman may acquire a
residence or domicile separate from that of her husband during the existence of the marriage where the husband has given
cause for divorce."
44
Note that the Court allowed the wife either to obtain new residence or to choose a new domicile in such an
event. In instances where the wife actually opts, .under the Civil Code, to live separately from her husband either by taking new
residence or reverting to her domicile of origin, the Court has held that the wife could not be compelled to live with her husband
on pain of contempt. In Arroyo vs. Vasques de Arroyo
45
the Court held that:
Upon examination of the authorities, we are convinced that it is not within the province of the courts of this
country to attempt to compel one of the spouses to cohabit with, and render conjugal rights to, the other.
Of course where the property rights of one of the pair are invaded, an action for restitution of such rights
can be maintained. But we are disinclined to sanction the doctrine that an order, enforcible (sic) by
process of contempt, may be entered to compel the restitution of the purely personal right of consortium.
At best such an order can be effective for no other purpose than to compel the spouses to live under the
same roof; and he experience of those countries where the courts of justice have assumed to compel the
cohabitation of married people shows that the policy of the practice is extremely questionable. Thus in
England, formerly the Ecclesiastical Court entertained suits for the restitution of conjugal rights at the
instance of either husband or wife; and if the facts were found to warrant it, that court would make a
mandatory decree, enforceable by process of contempt in case of disobedience, requiring the delinquent
party to live with the other and render conjugal rights. Yet this practice was sometimes criticized even by
the judges who felt bound to enforce such orders, and in Weldon v. Weldon (9 P.D. 52), decided in 1883,
Sir James Hannen, President in the Probate, Divorce and Admiralty Division of the High Court of Justice,
expressed his regret that the English law on the subject was not the same as that which prevailed in
Scotland, where a decree of adherence, equivalent to the decree for the restitution of conjugal rights in
England, could be obtained by the injured spouse, but could not be enforced by imprisonment.
Accordingly, in obedience to the growing sentiment against the practice, the Matrimonial Causes Act
(1884) abolished the remedy of imprisonment; though a decree for the restitution of conjugal rights can
still be procured, and in case of disobedience may serve in appropriate cases as the basis of an order for
the periodical payment of a stipend in the character of alimony.
In the voluminous jurisprudence of the United States, only one court, so far as we can discover, has ever
attempted to make a preemptory order requiring one of the spouses to live with the other; and that was in
a case where a wife was ordered to follow and live with her husband, who had changed his domicile to
the City of New Orleans. The decision referred to (Bahn v. Darby, 36 La. Ann., 70) was based on a
provision of the Civil Code of Louisiana similar to article 56 of the Spanish Civil Code. It was decided
many years ago, and the doctrine evidently has not been fruitful even in the State of Louisiana. In other
states of the American Union the idea of enforcing cohabitation by process of contempt is rejected. (21
Cyc., 1148).
In a decision of January 2, 1909, the Supreme Court of Spain appears to have affirmed an order of the
Audiencia Territorial de Valladolid requiring a wife to return to the marital domicile, and in the alternative,
upon her failure to do so, to make a particular disposition of certain money and effects then in her
possession and to deliver to her husband, as administrator of the ganancial property, all income, rents,
and interest which might accrue to her from the property which she had brought to the marriage. (113 Jur.
Civ., pp. 1, 11) But it does not appear that this order for the return of the wife to the marital domicile was
sanctioned by any other penalty than the consequences that would be visited upon her in respect to the
use and control of her property; and it does not appear that her disobedience to that order would
necessarily have been followed by imprisonment for contempt.
Parenthetically when Petitioner was married to then Congressman Marcos, in 1954, petitioner was obliged by virtue of Article
110 of the Civil Code to follow her husband's actual place of residence fixed by him. The problem here is that at that time, Mr.
Marcos had several places of residence, among which were San Juan, Rizal and Batac, Ilocos Norte. There is no showing which
of these places Mr. Marcos did fix as his family's residence. But assuming that Mr. Marcos had fixed any of these places as the
conjugal residence, what petitioner gained upon marriage was actual residence. She did not lose her domicile of origin.
On the other hand, the common law concept of "matrimonial domicile" appears to have been incorporated, as a result of our
jurisprudential experiences after the drafting of the Civil Code of 1950, into the New Family Code. To underscore the difference
between the intentions of the Civil Code and the Family Code drafters, the term residence has been supplanted by the term
domicile in an entirely new provision (Art. 69) distinctly different in meaning and spirit from that found in Article 110. The provision
recognizes revolutionary changes in the concept of women's rights in the intervening years by making the choice of domicile a
product of mutual agreement between the spouses.
46

Without as much belaboring the point, the term residence may mean one thing in civil law (or under the Civil Code) and quite
another thing in political law. What stands clear is that insofar as the Civil Code is concerned-affecting the rights and obligations
of husband and wife the term residence should only be interpreted to mean "actual residence." The inescapable conclusion
derived from this unambiguous civil law delineation therefore, is that when petitioner married the former President in 1954, she
kept her domicile of origin and merely gained a new home, not a domicilium necessarium.
Even assuming for the sake of argument that petitioner gained a new "domicile" after her marriage and only acquired a right to
choose a new one after her husband died, petitioner's acts following her return to the country clearly indicate that she not only
impliedly but expressly chose her domicile of origin (assuming this was lost by operation of law) as her domicile. This "choice"
was unequivocally expressed in her letters to the Chairman of the PCGG when petitioner sought the PCGG's permission to
"rehabilitate (our) ancestral house in Tacloban and Farm in Olot, Leyte. . . to make them livable for the Marcos family to have a
home in our homeland."
47
Furthermore, petitioner obtained her residence certificate in 1992 in Tacloban, Leyte, while living in her
brother's house, an act which supports the domiciliary intention clearly manifested in her letters to the PCGG Chairman. She
could not have gone straight to her home in San Juan, as it was in a state of disrepair, having been previously looted by vandals.
Her "homes" and "residences" following her arrival in various parts of Metro Manila merely qualified as temporary or "actual
residences," not domicile. Moreover, and proceeding from our discussion pointing out specific situations where the female
spouse either reverts to her domicile of origin or chooses a new one during the subsistence of the marriage, it would be highly
illogical for us to assume that she cannot regain her original domicile upon the death of her husband absent a positive act of
selecting a new one where situations exist within the subsistence of the marriage itself where the wife gains a domicile different
from her husband.
In the light of all the principles relating to residence and domicile enunciated by this court up to this point, we are persuaded that
the facts established by the parties weigh heavily in favor of a conclusion supporting petitioner's claim of legal residence or
domicile in the First District of Leyte.
II. The jurisdictional issue
Petitioner alleges that the jurisdiction of the COMELEC had already lapsed considering that the assailed resolutions were
rendered on April 24, 1995, fourteen (14) days before the election in violation of Section 78 of the Omnibus Election
Code.
48
Moreover, petitioner contends that it is the House of Representatives Electoral Tribunal and not the COMELEC which
has jurisdiction over the election of members of the House of Representatives in accordance with Article VI Sec. 17 of the
Constitution. This is untenable.
It is a settled doctrine that a statute requiring rendition of judgment within a specified time is generally construed to be merely
directory,
49
"so that non-compliance with them does not invalidate the judgment on the theory that if the statute had intended
such result it would have clearly indicated it."
50
The difference between a mandatory and a directory provision is often made on
grounds of necessity. Adopting the same view held by several American authorities, this court in Marcelino vs. Cruz held that:
51

The difference between a mandatory and directory provision is often determined on grounds of
expediency, the reason being that less injury results to the general public by disregarding than enforcing
the letter of the law.
In Trapp v. Mc Cormick, a case calling for the interpretation of a statute containing a limitation of thirty
(30) days within which a decree may be entered without the consent of counsel, it was held that "the
statutory provisions which may be thus departed from with impunity, without affecting the validity of
statutory proceedings, are usually those which relate to the mode or time of doing that which is essential
to effect the aim and purpose of the Legislature or some incident of the essential act." Thus, in said case,
the statute under examination was construed merely to be directory.
The mischief in petitioner's contending that the COMELEC should have abstained from rendering a decision after the period
stated in the Omnibus Election Code because it lacked jurisdiction, lies in the fact that our courts and other quasi-judicial bodies
would then refuse to render judgments merely on the ground of having failed to reach a decision within a given or prescribed
period.
In any event, with the enactment of Sections 6 and 7 of R.A. 6646 in relation to Section 78 of B.P. 881,
52
it is evident that the
respondent Commission does not lose jurisdiction to hear and decide a pending disqualification case under Section 78 of B.P.
881 even after the elections.
As to the House of Representatives Electoral Tribunal's supposed assumption of jurisdiction over the issue of petitioner's
qualifications after the May 8, 1995 elections, suffice it to say that HRET's jurisdiction as the sole judge of all contests relating to
the elections, returns and qualifications of members of Congress begins only after a candidate has become a member of the
House of Representatives.
53
Petitioner not being a member of the House of Representatives, it is obvious that the HRET at this
point has no jurisdiction over the question.
It would be an abdication of many of the ideals enshrined in the 1987 Constitution for us to either to ignore or deliberately make
distinctions in law solely on the basis of the personality of a petitioner in a case. Obviously a distinction was made on such a
ground here. Surely, many established principles of law, even of election laws were flouted for the sake perpetuating power
during the pre-EDSA regime. We renege on these sacred ideals, including the meaning and spirit of EDSA ourselves bending
established principles of principles of law to deny an individual what he or she justly deserves in law. Moreover, in doing so, we
condemn ourselves to repeat the mistakes of the past.
WHEREFORE, having determined that petitioner possesses the necessary residence qualifications to run for a seat in the House
of Representatives in the First District of Leyte, the COMELEC's questioned Resolutions dated April 24, May 7, May 11, and May
25, 1995 are hereby SET ASIDE. Respondent COMELEC is hereby directed to order the Provincial Board of Canvassers to
proclaim petitioner as the duly elected Representative of the First District of Leyte.
SO ORDERED.
Feliciano, J., is on leave.



Separate Opinions

PUNO, J ., concurring:
It was Aristotle who taught mankind that things that are alike should be treated alike, while things that are unalike should be
treated unalike in proportion to their unalikeness.
1
Like other candidates, petitioner has clearly met the residence requirement
provided by Section 6, Article VI of the Constitution.
2
We cannot disqualify her and treat her unalike, for the Constitution
guarantees equal protection of the law. I proceed from the following factual and legal propositions:
First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her parents were domiciled in Tacloban. Their
ancestral house is in Tacloban. They have vast real estate in the place. Petitioner went to school and thereafter worked there. I
consider Tacloban as her initial domicile, both her domicile of origin and her domicile of choice. Her domicile of origin as it was
the domicile of her parents when she was a minor; and her domicile of choice, as she continued living there even after reaching
the age of majority.
Second. There is also no question that in May, 1954, petitioner married the late President Ferdinand E. Marcos. By contracting
marriage, her domicile became subject to change by law, and the right to change it was given by Article 110 of the Civil Code
provides:
Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with
the husband if he should live abroad unless in the service of the Republic.
3
(Emphasis supplied)
In De la Via v. Villareal and Geopano,
4
this Court explained why the domicile of the wife ought to follow that of
the husband. We held: "The reason is founded upon the theoretic identity of person and interest between the
husband and the wife, and the presumption that, from the nature of the relation, the home of one is the home of
the other. It is intended to promote, strengthen, and secure their interests in this relation, as it ordinarily exists,
where union and harmony prevail."
5
In accord with this objective, Article 109 of the Civil Code also obligated the
husband and wife "to live together."
Third. The difficult issues start as we determine whether petitioner's marriage to former President Marcos ipso facto resulted in
the loss of her Tacloban domicile. I respectfully submit that her marriage by itself alone did not cause her to lose her Tacloban
domicile. Article 110 of the Civil Code merely gave the husband the right to fix the domicile of the family. In the exercise of the
right, the husband may explicitly choose the prior domicile of his wife, in which case, the wife's domicile remains unchanged. The
husband can also implicitly acquiesce to his wife's prior domicile even if it is different. So we held in de la Via,
6

. . . . When married women as well as children subject to parental authority live, with the acquiescence of
their husbands or fathers, in a place distinct from where the latter live, they have their
ownindependent domicile. . . .
It is not, therefore, the mere fact of marriage but the deliberate choice of a different domicile by the husband that
will change the domicile of a wife from what it was prior to their marriage. The domiciliary decision made by the
husband in the exercise of the right conferred by Article 110 of the Civil Code binds the wife. Any and all acts of a
wife during her coverture contrary to the domiciliary choice of the husband cannot change in any way the domicile
legally fixed by the husband. These acts are void not only because the wife lacks the capacity to choose her
domicile but also because they are contrary to law and public policy.
In the case at bench, it is not disputed that former President Marcos exercised his right to fix the family domicile and established
it in Batac, Ilocos Norte, where he was then the congressman. At that particular point of time and throughout their married life,
petitioner lost her domicile in Tacloban, Leyte. Since petitioner's Batac domicile has been fixed by operation of law, it was not
affected in 1959 when her husband was elected as Senator, when they lived in San Juan, Rizal and where she registered as a
voter. It was not also affected in 1965 when her husband was elected President, when they lived in Malacaang Palace, and
when she registered as a voter in San Miguel, Manila. Nor was it affected when she served as a member of the Batasang
Pambansa, Minister of Human Settlements and Governor of Metro Manila during the incumbency of her husband as President of
the nation. Under Article 110 of the Civil Code, it was only her husband who could change the family domicile in Batac and the
evidence shows he did not effect any such change. To a large degree, this follows the common law that "a woman on her
marriage loses her own domicile and by operation of law, acquires that of her husband, no matter where the wife actually lives or
what she believes or intends."
7

Fourth. The more difficult task is how to interpret the effect of the death on September 28, 1989 of former President Marcos on
petitioner's Batac domicile. The issue is of first impression in our jurisdiction and two (2) schools of thought contend for
acceptance. One is espoused by our distinguished colleague, Mr. Justice Davide, Jr., heavily relying on American
authorities.
8
He echoes the theory that after the husband's death, the wife retains the last domicile of her husband until she
makes an actual change.
I do not subscribe to this submission. The American case law that the wife still retains her dead husband's domicile is based
on ancient common law which we can no longer apply in the Philippine setting today. The common law identified the domicile of
a wife as that of the husband and denied to her the power of acquiring a domicile of her own separate and apart from him.
9
Legal
scholars agree that two (2) reasons support this common law doctrine. The first reason as pinpointed by the legendary
Blackstone is derived from the view that "the very being or legal existence of the woman is suspended during
the marriage, or at least is incorporated and consolidated into that of the husband."
10
The second reason lies in "the desirability
of having the interests of each member of the family unit governed by the same law."
11
Thepresumption that the wife retains the
domicile of her deceased husband is an extension of this common law concept. The concept and its extension have provided
some of the most iniquitous jurisprudence against women. It was under common law that the 1873 American case of Bradwell
v. Illinois
12
was decided where women were denied the right to practice law. It was unblushingly ruled that "the natural and
proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life . . . This is
the law of the Creator." Indeed, the rulings relied upon by Mr. Justice Davide in CJS
13
and AM JUR 2d
14
are American state
court decisions handed down between the years 1917
15
and 1938,
16
or before the time when women were accorded equality of
rights with men. Undeniably, the women's liberation movement resulted in far-ranging state legislations in the United States to
eliminate gender inequality.
17
Starting in the decade of the seventies, the courts likewise liberalized their rulings as they started
invalidating laws infected with gender-bias. It was in 1971 when the US Supreme Court in Reed v. Reed,
18
struck a big blow for
women equality when it declared as unconstitutional an Idaho law that required probate courts to choose male family members
over females as estate administrators. It held that mere administrative inconvenience cannot justify a sex-based
distinction. These significant changes both in law and in case law on the status of women virtually obliterated the iniquitous
common law surrendering the rights of married women to their husbands based on the dubious theory of the parties' theoretic
oneness. The Corpus Juris Secundum editors did not miss the relevance of this revolution on women's right as they observed:
"However, it has been declared that under modern statutes changing the status of married women and departing from the
common law theory of marriage, there is no reason why a wife may not acquire a separate domicile for every purpose known to
the law."
19
In publishing in 1969 the Restatement of the Law, Second (Conflict of Laws 2d), the reputable American Law Institute
also categorically stated that the view of Blackstone ". . . is no longer held. As the result of statutes and court decisions, a wife
now possesses practically the same rights and powers as her unmarried sister."
20

In the case at bench, we have to decide whether we should continue clinging to the anachronistic common law that demeans
women, especially married women. I submit that the Court has no choice except to break away from this common law rule, the
root of the many degradations of Filipino women. Before 1988, our laws particularly the Civil Code, were full of gender
discriminations against women. Our esteemed colleague, Madam Justice Flerida Ruth Romero, cited a few of them as follows:
21

xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that under the Civil Code, wives suffer under certain restrictions or
disabilities. For instance, the wife cannot accept gifts from others, regardless of the sex of the giver or the
value of the gift, other than from her very close relatives, without her husband's consent. She may accept
only from, say, her parents, parents-in-law, brothers, sisters and the relatives within the so-called fourth
civil degree. She may not exercise her profession or occupation or engage in business if her husband
objects on serious grounds or if his income is sufficient to support their family in accordance with their
social standing. As to what constitutes "serious grounds" for objecting, this is within the discretion of the
husband.
xxx xxx xxx
Because of the present inequitable situation, the amendments to the Civil Law being proposed by the
University of the Philippines Law Center would allow absolute divorce which severes the matrimonial ties,
such that the divorced spouses are free to get married a year after the divorce is decreed by the courts.
However, in order to place the husband and wife on an equal footing insofar as the bases for divorce are
concerned, the following are specified as the grounds for absolute divorce: (1) adultery or having a
paramour committed by the respondent in any of the ways specified in the Revised Penal Code or (2) an
attempt by the respondent against the life of the petitioner which amounts to attempted parricide under
the Revised Penal Code; (3) abandonment of the petitioner by the respondent without just cause for a
period of three consecutive years; or (4) habitual maltreatment.
With respect to property relations, the husband is automatically the administrator of the conjugal property
owned in common by the married couple even if the wife may be the more astute or enterprising partner.
The law does not leave it to the spouses to decide who shall act as such administrator. Consequently, the
husband is authorized to engage in acts and enter into transactions beneficial to the conjugal partnership.
The wife, however, cannot similarly bind the partnership without the husband's consent.
And while both exercise joint parental authority over their children, it is the father whom the law
designates as the legal administrator of the property pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted efforts, principally through legislations, to eliminate inequality
between men and women in our land. The watershed came on August 3, 1988 when our Family Code took effect
which, among others, terminated the unequal treatment of husband and wife as to their rights and
responsibilities.
22

The Family Code attained this elusive objective by giving new rights to married women and by abolishing sex-based privileges of
husbands. Among others, married women are now given the joint right to administer the family property, whether in the absolute
community system or in the system of conjugal partnership;
23
joint parental authority over their minor children, both over their
persons as well as their properties;
24
joint responsibility for the support of the family;
25
the right to jointly manage the
household;
26
and, the right to object to their husband's exercise of profession, occupation, business or activity.
27
Of particular
relevance to the case at bench is Article 69 of the Family Code which took away the exclusive right of the husband to fix the
family domicile and gave it jointly to the husband and the wife, thus:
Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall
decide.
The court may exempt one spouse from living with the other if the latter should live abroad or there are
other valid and compelling reasons for the exemption. However, such exemption shall not apply if the
same is not compatible with the solidarity of the family. (Emphasis supplied)
Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the husband and wife to live
together, former Madam Justice Alice Sempio-Diy of the Court of Appeals specified the instances when a wife
may now refuse to live with her husband, thus:
28

(2) The wife has the duty to live with her husband, but she may refuse to do so in certain cases like:
(a) If the place chosen by the husband as family residence is dangerous to her Life;
(b) If the husband subjects her to maltreatment or abusive conduct or insults, making
common life impossible;
(c) If the husband compels her to live with his parents, but she cannot get along with her
mother-in-law and they have constant quarrels (Del Rosario v. Del Rosario, CA, 46 OG
6122);
(d) Where the husband has continuously carried illicit relations for 10 years with different
women and treated his wife roughly and without consideration. (Dadivas v. Villanueva, 54
Phil. 92);
(e) Where the husband spent his time in gambling, giving no money to his family for food
and necessities, and at the same time insulting his wife and laying hands on her.
(Panuncio v. Sula, CA, 34 OG 129);
(f) If the husband has no fixed residence and lives a vagabond life as a tramp (1 Manresa
329);
(g) If the husband is carrying on a shameful business at home (Gahn v. Darby, 38 La.
Ann. 70).
The inescapable conclusion is that our Family Code has completely emancipated the wife from the control of the
husband, thus abandoning the parties' theoretic identity of interest. No less than the late revered Mr. Justice
J.B.L. Reyes who chaired the Civil Code Revision Committee of the UP Law Center gave this insightful view in
one of his rare lectures after retirement:
29

xxx xxx xxx
The Family Code is primarily intended to reform the family law so as to emancipate the wife from the
exclusive control of the husband and to place her at parity with him insofar as the family is concerned.The
wife and the husband are now placed on equal standing by the Code. They are now joint administrators of
the family properties and exercise joint authority over the persons and properties of their children. This
means a dual authority in the family. The husband will no longer prevail over the wife but she has to agree
on all matters concerning the family. (Emphasis supplied)
In light of the Family Code which abrogated the inequality between husband and wife as started and perpetuated
by the common law, there is no reason in espousing the anomalous rule that the wife still retains the domicile of
her dead husband. Article 110 of the Civil Code which provides the statutory support for this stance has been
repealed by Article 69 of the Family Code. By its repeal, it becomes a dead-letter law, and we are not free to
resurrect it by giving it further effect in any way or manner such as by ruling that the petitioner is still bound by the
domiciliary determination of her dead husband.
Aside from reckoning with the Family Code, we have to consider our Constitution and its firm guarantees of due process and
equal protection of
law.
30
It can hardly be doubted that the common law imposition on a married woman of her dead husband's domicile even
beyond his grave is patently discriminatory to women. It is a gender-based discrimination and is not rationally related to the
objective of promoting family solidarity. It cannot survive a constitutional challenge. Indeed, compared with our previous
fundamental laws, the 1987 Constitution is more concerned with equality between sexes as it explicitly commands that the
State ". . . shall ensure fundamental equality before the law of women and men." To be exact, section 14, Article II provides: "The
State recognizes the role of women in nation building, and shall ensure fundamental equality before the law of women and men.
We shall be transgressing the sense and essence of this constitutional mandate if we insist on giving our women the caveman's
treatment.
Prescinding from these premises, I respectfully submit that the better stance is to rule that petitioner reacquired her Tacloban
domicile upon the death of her husband in 1989. This is the necessary consequence of the view that petitioner's Batac dictated
domicile did not continue after her husband's death; otherwise, she would have no domicile and that will violate the universal rule
that no person can be without a domicile at any point of time. This stance also restores the right of petitioner to choose her
domicile before it was taken away by Article 110 of the Civil Code, a right now recognized by the Family Code and protected by
the Constitution. Likewise, I cannot see the fairness of the common law requiring petitioner to choose again her Tacloban
domicile before she could be released from her Batac domicile. She lost her Tacloban domicile not through her act but through
the act of her deceased husband when he fixed their domicile in Batac. Her husband is dead and he cannot rule her beyond the
grave. The law disabling her to choose her own domicile has been repealed. Considering all these, common law should not put
the burden on petitioner to prove she has abandoned her dead husband's domicile. There is neither rhyme nor reason for this
gender-based burden.
But even assuming arguendo that there is need for convincing proof that petitioner chose to reacquire her Tacloban domicile,
still, the records reveal ample evidence to this effect. In her affidavit submitted to the respondent COMELEC, petitioner averred:
xxx xxx xxx
36. In November, 1991, I came home to our beloved country, after several requests for my return were
denied by President Corazon C. Aquino, and after I filed suits for our Government to issue me my
passport.
37. But I came home without the mortal remains of my beloved husband, President Ferdinand E. Marcos,
which the Government considered a threat to the national security and welfare.
38. Upon my return to the country, I wanted to immediately live and reside in Tacloban City or in Olot,
Tolosa, Leyte, even if my residences there were not livable as they had been destroyed and cannibalized.
The PCGG, however, did not permit and allow me.
39. As a consequence, I had to live at various times in the Westin Philippine Plaza in Pasay City, a
friend's apartment on Ayala Avenue, a house in South Forbes Park which my daughter rented, and Pacific
Plaza, all in Makati.
40. After the 1992 Presidential Elections, I lived and resided in the residence of my brother in San Jose,
Tacloban City, and pursued my negotiations with PCGG to recover my sequestered residences in
Tacloban City and Barangay Olot, Tolosa, Leyte.
40.1 In preparation for my observance of All Saints' Day and All Souls' Day that year, I
renovated my parents' burial grounds and entombed their bones which had been
excalvated, unearthed and scattered.
41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol Gunigundo for permissions to

. . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse in Olot, Leyte . . . to
make them livable for us the Marcos family to have a home in our own motherland.
xxx xxx xxx
42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo, in his letter to Col. Simeon
Kempis, Jr., PCGG Region 8 Representative, allowed me to repair and renovate my Leyte residences. I
quote part of his letter:
Dear Col. Kempis,
Upon representation by Mrs. Imelda R. Marcos to this Commission, that she intends to
visit our sequestered properties in Leyte, please allow her access thereto. She may also
cause repairs and renovation of the sequestered properties, in which event, it shall be
understood that her undertaking said repairs is not authorization for her to take over said
properties, and that all expenses shall be for her account and not reimbursable. Please
extend the necessary courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live and stay in the Sto. Nio Shrine residence in Tacloban City
where I wanted to stay and reside, after repairs and renovations were completed. In August 1994, I
transferred from San Jose, Tacloban City, to my residence in Barangay Olot, Tolosa, Leyte, when PCGG
permitted me to stay and live there.
It is then clear that in 1992 petitioner reestablished her domicile in the First District of Leyte. It is not disputed that
in 1992, she first lived at the house of her brother in San Jose, Tacloban City and later, in August 1994, she
transferred her residence in Barangay Olot, Tolosa, Leyte. Both Tacloban City and the municipality of Olot are
within the First District of Leyte. Since petitioner reestablished her old domicile in 1992 in the First District of
Leyte, she more than complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of the election," i.e., the May 8, 1995
elections.
The evidence presented by the private respondent to negate the Tacloban domicile of petitioner is nil. He presented petitioner's
Voter's Registration Record filed with the Board of Election Inspectors of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein
she stated that her period of residence in said barangay was six (6) months as of the date of her filing of said Voter's Registration
Record on January 28, 1995.
31
This statement in petitioner's Voter's Registration Record is a non-prejudicial admission. The
Constitution requires at least one (1) year residence in the district in which the candidate shall be elected. In the case at bench,
the reference is the First District of Leyte. Petitioner's statement proved that she resided in Olot six (6) months before January
28, 1995 but did not disprove that she has also resided in Tacloban City starting 1992. As aforestated, Olot and Tacloban City
are both within the First District of Leyte, hence, her six (6) months residence in Olot should be counted not against, but in her
favor. Private respondent also presented petitioner's Certificate of Candidacy filed on March 8, 1995
32
where she placed seven
(7) months after Item No. 8 which called for information regarding "residence in the constituency where I seek to be elected
immediately preceding the election." Again, this original certificate of candidacy has no evidentiary value because an March 1,
1995 it was corrected by petitioner. In her Amended/Corrected Certificate of Candidacy,
33
petitioner wrote "since childhood" after
Item No. 8. The amendment of a certificate of candidacy to correct a bona fide mistake has been allowed by this Court as a
matter of course and as a matter of right. As we held in Alialy v. COMELEC,
34
viz.:
xxx xxx xxx
The absence of the signature of the Secretary of the local chapter N.P in the original certificate of
candidacy presented before the deadline September 11, 1959, did not render the certificate invalid.The
amendment of the certificate, although at a date after the deadline, but before the election, was
substantial compliance with the law, and the defect was cured.
It goes without saying that petitioner's erroneous Certificate of Candidacy filed on March 8, 1995 cannot be used
as evidence against her. Private respondent's petition for the disqualification of petitioner rested alone on these
two (2) brittle pieces of documentary evidence petitioner's Voter's Registration Record and her original
Certificate of Candidacy. Ranged against the evidence of the petitioner showing her ceaseless contacts with
Tacloban, private respondent's two (2) pieces of evidence are too insufficient to disqualify petitioner, more so, to
deny her the right to represent the people of the First District of Leyte who have overwhelmingly voted for her.
Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for any public office shall be free from any
form of harassment and discrimination."
35
A detached reading of the records of the case at bench will show that all forms of legal
and extra-legal obstacles have been thrown against petitioner to prevent her from running as the people's representative in the
First District of Leyte. In petitioner's Answer to the petition to disqualify her, she averred:
36

xxx xxx xxx
10. Petitioner's (herein private respondent Montejo) motive in filing the instant petition is devious. When
respondent (petitioner herein) announced that she was intending to register as a voter in Tacloban City
and run for Congress in the First District of Leyte, petitioner (Montejo) immediately opposed her intended
registration by writing a letter stating that "she is not a resident of said city but of Barangay Olot, Tolosa,
Leyte." (Annex "2" of respondent's affidavit, Annex "2"). After respondent (petitioner herein) had
registered as a voter in Tolosa following completion of her six-month actual residence therein, petitioner
(Montejo) filed a petition with the COMELEC to transfer the town of Tolosa from the First District to the
Second District and pursued such move up to the Supreme Court in G.R. No. 118702, his purpose being
to remove respondent (petitioner herein) as petitioner's (Montejo's) opponent in the congressional election
in the First District. He also filed a bill, along with other Leyte Congressmen, seeking to create another
legislative district, to remove the town of Tolosa out of the First District and to make it a part of the new
district, to achieve his purpose. However, such bill did not pass the Senate. Having, failed on such moves,
petitioner now filed the instant petition, for the same objective, as it is obvious that he is afraid to submit
himself along with respondent (petitioner herein) for the judgment and verdict of the electorate of the First
District of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995.
These allegations which private respondent did not challenge were not lost
to the perceptive eye of Commissioner Maambong who in his Dissenting Opinion,
37
held:
xxx xxx xxx
Prior to the registration date January 28, 1995 the petitioner (herein private respondent Montejo) wrote
the Election Officer of Tacloban City not to allow respondent (petitioner herein) to register thereat since
she is a resident of Tolosa and not Tacloban City. The purpose of this move of the petitioner (Montejo) is
not lost to (sic) the Commission. In UND No. 95-001 (In the matter of the Legislative Districts of the
Provinces of Leyte, Iloilo, and South Cotabato, Out of Which the New Provinces of Biliran, Guimaras and
Saranggani Were Respectively Created), . . . Hon. Cirilo Roy G. Montejo, Representative, First District of
Leyte, wanted the Municipality of Tolosa, in the First District of Leyte, transferred to the Second District of
Leyte. The Hon. Sergio A.F. Apostol, Representative of the Second District of Leyte, opposed the move of
the petitioner (Montejo). Under Comelec Resolution No. 2736 (December 29, 1994), the Commission on
Elections refused to make the proposed transfer. Petitioner (Montejo) filed "Motion for Reconsideration of
Resolution
No. 2736" which the Commission denied in a Resolution promulgated on February 1, 1995. Petitioner
(Montejo) filed a petition for certiorari before the Honorable Supreme Court (Cirilo Roy G. Montejo vs.
Commission on Elections, G.R. No. 118702) questioning the resolution of the Commission. Believing that
he could get a favorable ruling from the Supreme Court, petitioner (Montejo) tried to make sure that the
respondent (petitioner herein) will register as a voter in Tolosa so that she will be forced to run as
Representative not in the First but in the Second District.
It did not happen. On March 16, 1995, the Honorable Supreme Court unanimously promulgated a
"Decision," penned by Associate Justice Reynato S. Puno, the dispositive portion of which reads:
IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it transferred the
municipality of Capoocan of the Second District and the municipality of Palompon of the
Fourth District to the Third District of the province of Leyte, is annulled and set aside. We
also deny the Petition praying for the transfer of the municipality of Tolosa from the First
District to the Second District of the province of Leyte. No costs.
Petitioner's (Montejo's) plan did not work. But the respondent (petitioner herein) was constrained to
register in the Municipality of Tolosa where her house is instead of Tacloban City, her domicile. In any
case, both Tacloban City and Tolosa are in the First Legislative District.
All these attempts to misuse our laws and legal processes are forms of rank harassments and invidious
discriminations against petitioner to deny her equal access to a public office. We cannot commit any hermeneutic
violence to the Constitution by torturing the meaning of equality, the end result of which will allow the harassment
and discrimination of petitioner who has lived a controversial life, a past of alternating light and shadow. There is
but one Constitution for all Filipinos. Petitioner cannot be adjudged by a "different" Constitution, and the worst
way to interpret the Constitution is to inject in its interpretation, bile and bitterness.
Sixth. In Gallego v. Vera,
38
we explained that the reason for this residence requirement is "to exclude a stranger or newcomer,
unacquainted, with the conditions and needs of a community and not identified with the latter, from an elective office to serve that
community . . . ." Petitioner's lifetime contacts with the First District of Leyte cannot be contested. Nobody can claim that she is
not acquainted with its problems because she is a stranger to the place. None can argue she cannot satisfy the intent of the
Constitution.
Seventh. In resolving election cases, a dominant consideration is the need to effectuate the will of the electorate. The election
results show that petitioner received Seventy Thousand Four Hundred Seventy-one (70,471) votes, while private respondent got
only Thirty-Six Thousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is clearly the overwhelming choice of the
electorate of the First District of Leyte and this is not a sleight of statistics. We cannot frustrate this sovereign will on highly
arguable technical considerations. In case of doubt, we should lean towards a rule that will give life to the people's political
judgment.
A final point. The case at bench provides the Court with the rare opportunity to rectify the inequality of status between women
and men by rejecting the iniquitous common law precedents on the domicile of married women and by redefining domicile in
accord with our own culture, law, and Constitution. To rule that a married woman is eternally tethered to the domicile dictated by
her dead husband is to preserve the anachronistic and anomalous balance of advantage of a husband over his wife. We should
not allow the dead to govern the living even if the glories of yesteryears seduce us to shout long live the dead! The Family Code
buried this gender-based discrimination against married women and we should not excavate what has been entombed. More
importantly, the Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J ., concurring:
I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position of Representative of the First
Congressional District of Leyte. I wish, however, to express a few comments on the issue of petitioner's domicile.
Domicile has been defined as that place in which a person's habitation is fixed, without any present intention of removing
therefrom, and that place is properly the domicile of a person in which he has voluntarily fixed his abode, or habitation, not for a
mere special or temporary purpose, but with a present intention of making it his permanent home (28 C.J.S. 1). It denotes a
fixed permanent residence to which when absent for business, or pleasure, or for like reasons one intends to return, and
depends on facts and circumstances, in the sense that they disclose intent. (Ong Huan Tin v. Republic, 19 SCRA 966, 969)
Domicile is classified into domicile of origin and domicile of choice. The law attributes to every individual a domicile of origin,
which is the domicile of his parents, or of the head of his family, or of the person on whom he is legally dependent at the time of
his birth. While the domicile of origin is generally the place where one is born or reared, it maybe elsewhere (28 C.J.S. 5).
Domicile of choice, on the other hand, is the place which the person has elected and chosen for himself to displace his previous
domicile; it has for its true basis or foundation the intention of the person (28 C.J.S. 6). In order to hold that a person has
abandoned his domicile and acquired a new one called domicile of choice, the following requisites must concur, namely, (a)
residence or bodily presence in the new locality, (b) intention to remain there or animus manendi, and (c) an intention to abandon
the old domicile oranimus non revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408, 415). A third classification is
domicile by operation of law which attributes to a person a domicile independent of his own intention or actual residence,
ordinarily resulting from legal domestic relations, as that of the wife arising from marriage, or the relation of a parent and a child
(28 C.J.S. 7).
In election law, when our Constitution speaks of residence for election purposes it means domicile (Co v. Electoral Tribunal of the
House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To my mind, public respondent Commission
on Elections misapplied this concept, of domicile which led to petitioner's disqualification by ruling that petitioner failed to comply
with the constitutionally mandated one-year residence requirement. Apparently, public respondent Commission deemed as
conclusive petitioner's stay and registration as voter in many places as conduct disclosing her intent to abandon her established
domicile of origin in Tacloban, Leyte. In several decisions, though, the Court has laid down the rule that registration of a voter in a
place other than his place of origin is not sufficient to constitute abandonment or loss of such residence (Faypon v. Quirino, 96
Phil. 294, 300). Respondent Commission offered no cogent reason to depart from this rule except to surmise petitioner's intent of
abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin was supplanted by a new domicile due to her marriage, a domicile by
operation of law. The proposition is that upon the death of her husband in 1989 she retains her husband's domicile, i.e., Batac,
Ilocos Norte, until she makes an actual change thereof. I find this proposition quite untenable.
Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with another, i.e., Batac, Ilocos Norte, upon
her marriage in 1954 with then Congressman Marcos. By legal fiction she followed the domicile of her husband. In my view, the
reason for the law is for the spouses to fully and effectively perform their marital duties and obligations to one another.
1
The
question of domicile, however, is not affected by the fact that it was the legal or moral duty of the individual to reside in a given
place (28 C.J.S. 11). Thus, while the wife retains her marital domicile so long as the marriage subsists, she automatically loses
it upon the latter's termination, for the reason behind the law then ceases. Otherwise, petitioner, after her marriage was ended by
the death of her husband, would be placed in a quite absurd and unfair situation of having been freed from all wifely obligations
yet made to hold on to one which no longer serves any meaningful purpose.
It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte upon her husband's death without even
signifying her intention to that effect. It is for the private respondent to prove, not for petitioner to disprove, that petitioner has
effectively abandoned Tacloban, Leyte for Batac, Ilocos Norte or for some other place/s. The clear rule is that it is the party
(herein private respondent) claiming that a person has abandoned or lost his residence of origin who must show and prove
preponderantly such abandonment or loss (Faypon v. Quirino, supra at 298; 28 C.J.S. 16), because the presumption is strongly
in favor of an original or former domicile, as against an acquired one (28 C.J.S. 16). Private respondent unfortunately failed to
discharge this burden as the record is devoid of convincing proof that petitioner has acquired whether voluntarily or involuntarily,
a new domicile to replace her domicile of origin.
The records, on the contrary, clearly show that petitioner has complied with the constitutional one-year residence requirement.
After her exile abroad, she returned to the Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the Presidential Commission
on Good Government which sequestered her residential house and other properties forbade her necessitating her transient stay
in various places in Manila (Affidavit p.6, attached as Annex I of the Petition). In 1992, she ran for the position of president writing
in her certificate of candidacy her residence as San Juan, Metro Manila. After her loss therein, she went back to Tacloban City,
acquired her residence certificate
2
and resided with her brother in San Jose. She resided in San Jose, Tacloban City until August
of 1994 when she was allowed by the PCGG to move and reside in her sequestered residential house in Olot, Tolosa, Leyte
(Annex I, p. 6).
3
It was in the same month of August when she applied for the cancellation of her previous registration in San
Juan, Metro Manila in order to register anew as voter of Olot, Tolosa, Leyte, which she did on January 28, 1995. From this
sequence of events, I find it quite improper to use as the reckoning period of the one-year residence requirement the date when
she applied for the cancellation of her previous registration in San Juan, Metro Manila. The fact which private respondent never
bothered to disprove is that petitioner transferred her residence after the 1992 presidential election from San Juan, Metro Manila
to San Jose, Tacloban City, and resided therein until August of 1994. She later transferred to Olot, Tolosa, Leyte (Annex I, p. 7).
It appearing that both Tacloban City and Tolosa, Leyte are within the First Congressional District of Leyte, it indubitably stands
that she had more than a year of residence in the constituency she sought to be elected. Petitioner, therefore, has satisfactorily
complied with the one-year qualification required by the 1987 Constitution.
I vote to grant the petition.
ROMERO, J ., separate opinion:
Petitioner has appealed to this Court for relief after the COMELEC ruled that she was disqualified from running for
Representative of her District and that, in the event that she should, nevertheless, muster a majority vote, her proclamation
should be suspended. Not by a straightforward ruling did the COMELEC pronounce its decision as has been its unvarying
practice in the past, but by a startling succession of "reverse somersaults." Indicative of its shifting stance vis-a-vis petitioner's
certificate of candidacy were first, the action of its Second Division disqualifying her and canceling her original Certificate of
Candidacy by a vote of 2-1 on April 24, 1995; then the denial by the COMELEC en banc of her Motion for Reconsideration on
May 7, 1995, a day before the election; then because she persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the event that the results of the canvass should show
that she obtained the highest number of votes (obviously noting that petitioner had won overwhelmingly over her opponent), but
almost simultaneously reversing itself by directing that even if she wins, her proclamation should nonetheless be suspended.
Crucial to the resolution of the disqualification issue presented by the case at bench is the interpretation to be given to the one-
year residency requirement imposed by the Constitution on aspirants for a Congressional seat.
1

Bearing in mind that the term "resident" has been held to be synonymous with "domicile" for election purposes, it is important to
determine whether petitioner's domicile was in the First District of Leyte and if so, whether she had resided there for at least a
period of one year. Undisputed is her domicile of origin, Tacloban, where her parents lived at the time of her birth. Depending on
what theory one adopts, the same may have been changed when she married Ferdinand E. Marcos, then domiciled in Batac, by
operation of law. Assuming it did, his death certainly released her from the obligation to live with him at the residence fixed by
him during his lifetime. What may confuse the layman at this point is the fact that the term "domicile" may refer to "domicile of
origin," "domicile of choice," or "domicile by operation of law," which subject we shall not belabor since it has been amply
discussed by theponente and in the other separate opinions.
In any case, what assumes relevance is the divergence of legal opinion as to the effect of the husband's death on the domicile of
the widow. Some scholars opine that the widow's domicile remains unchanged; that the deceased husband's wishes perforce still
bind the wife he has left behind. Given this interpretation, the widow cannot possibly go far enough to sever the domiciliary tie
imposed by her husband.
It is bad enough to interpret the law as empowering the husband unilaterally to fix the residence or domicile of the family, as laid
down in the Civil Code,
2
but to continue giving obeisance to his wishes even after the rationale underlying the mutual duty of the
spouses to live together has ceased, is to close one's eyes to the stark realities of the present.
At the other extreme is the position that the widow automatically reverts to her domicile of origin upon the demise of her husband.
Does the law so abhor a vacuum that the widow has to be endowed somehow with a domicile? To answer this question which is
far from rhetorical, one will have to keep in mind the basic principles of domicile. Everyone must have a domicile. Then one must
have only a single domicile for the same purpose at any given time. Once established, a domicile remains until a new one is
acquired, for no person lives who has no domicile, as defined by the law be is subject to.
At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction, rendered more murky by the conflicting
opinions of foreign legal authorities. This being the state of things, it is imperative as it is opportune to illumine the darkness with
the beacon light of truth, as dictated by experience and the necessity of according petitioner her right to choose her domicile in
keeping with the enlightened global trend to recognize and protect the human rights of women, no less than men.
Admittedly, the notion of placing women at par with men, insofar as civil, political and social rights are concerned, is a relatively
recent phenomenon that took seed only in the middle of this century. It is a historical fact that for over three centuries, the
Philippines had been colonized by Spain, a conservative, Catholic country which transplanted to our shores the Old World
cultures, mores and attitudes and values. Through the imposition on our government of the Spanish Civil Code in 1889, the
people, both men and women, had no choice but to accept such concepts as the husband's being the head of the family and the
wife's subordination to his authority. In such role, his was the right to make vital decisions for the family. Many instances come to
mind, foremost being what is related to the issue before us, namely, that "the husband shall fix the residence of the
family."
3
Because he is made responsible for the support of the wife and the rest of the family,
4
he is also empowered to be the
administrator of the conjugal property, with a few exceptions
5
and may, therefore, dispose of the conjugal partnership property
for the purposes specified under the law;
6
whereas, as a general rule, the wife cannot bind the conjugal partnership without the
husband's consent.
7
As regards the property pertaining to the children under parental authority, the father is the legal
administrator and only in his absence may the mother assume his powers.
8
Demeaning to the wife's dignity are certain strictures
on her personal freedoms, practically relegating her to the position of minors and disabled persons. To illustrate a few: The wife
cannot, without the husband's consent, acquire any gratuitous title, except from her ascendants, descendants, parents-in-law,
and collateral relatives within the fourth degree.
9
With respect to her employment, the husband wields a veto power in the case
the wife exercises her profession or occupation or engages in business, provided his income is sufficient for the family, according
to its social standing and his opposition is founded on serious and valid grounds.
10
Most offensive, if not repulsive, to the liberal-
minded is the effective prohibition upon a widow to get married till after three hundred days following the death of her husband,
unless in the meantime, she has given birth to a child.
11
The mother who contracts a subsequent marriage loses the parental
authority over her children, unless the deceased husband, father of the latter, has expressly provided in his will that his widow
might marry again, and has ordered that in such case she should keep and exercise parental authority over their
children.
12
Again, an instance of a husband's overarching influence from beyond the grave.
All these indignities and disabilities suffered by Filipino wives for hundreds of years evoked no protest from them until the concept
of human rights and equality between and among nations and individuals found hospitable lodgment in the United Nations
Charter of which the Philippines was one of the original signatories. By then, the Spanish "conquistadores" had been overthrown
by the American forces at the turn of the century. The bedrock of the U.N. Charter was firmly anchored on this credo: "to reaffirm
faith in the fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women."
(Emphasis supplied)
It took over thirty years before these egalitarian doctrines bore fruit, owing largely to the burgeoning of the
feminist movement. What may be regarded as the international bill of rights for women was implanted in the
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) adopted by the U.N.
General Assembly which entered into force as an international treaty on September 3, 1981. In ratifying the
instrument, the Philippines bound itself to implement its liberating spirit and letter, for its Constitution, no less,
declared that "The Philippines. . . adopts the generally accepted principles of international law as part of the law
of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all
nations."
13
One such principle embodied in the CEDAW is granting to men and women "the same rights with
regard to the law relating to the movement of persons and the freedom to choose their residence and
domicile."
14
(Emphasis supplied).
CEDAW's pro-women orientation which was not lost on Filipino women was reflected in the 1987 Constitution of the Philippines
and later, in the Family Code,
15
both of which were speedily approved by the first lady President of the country, Corazon C.
Aquino. Notable for its emphasis on the human rights of all individuals and its bias for equality between the sexes are the
following provisions: "The State values the dignity of every human person and guarantees full respect for human rights"
16
and
"The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women
and men."
17

A major accomplishment of women in their quest for equality with men and the elimination of discriminatory provisions of law was
the deletion in the Family Code of almost all of the unreasonable strictures on wives and the grant to them of personal rights
equal to that of their husbands. Specifically, the husband and wife are now giventhe right jointly to fix the family
domicile;
18
concomitant to the spouses' being jointly responsible for the support of the family is the right and duty of both spouses
to manage the household;
19
the administration and the enjoyment of the community property shall belong to both spouses
jointly;
20
the father and mother shall now jointly exercise legal guardianship over the property of their unemancipated common
child
21
and several others.
Aware of the hiatus and continuing gaps in the law, insofar as women's rights are concerned, Congress passed a law popularly
known as "Women in Development and Nation Building Act"
22
Among the rights given to married women evidencing their
capacity to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain loans and execute security and credit arrangements under the same
conditions as men;
(2) Women shall have equal access to all government and private sector programs granting agricultural credit, loans and non
material resources and shall enjoy equal treatment in agrarian reform and land resettlement programs;
(3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and
(4) Married women shall have rights equal to those of married men in applying for passports, secure visas and other travel
documents, without need to secure the consent of their spouses.
As the world draws the curtain on the Fourth World Conference of Women in Beijing, let this Court now be the first to respond to
its clarion call that "Women's Rights are Human Rights" and that "All obstacles to women's full participation in decision-making at
all levels, including the family" should be removed. Having been herself a Member of the Philippine Delegation to the
International Women's Year Conference in Mexico in 1975, this writer is only too keenly aware of the unremitting struggle being
waged by women the world over, Filipino women not excluded, to be accepted as equals of men and to tear down the walls of
discrimination that hold them back from their proper places under the sun.
In light of the inexorable sweep of events, local and global, legislative, executive and judicial, according more rights to women
hitherto denied them and eliminating whatever pockets of discrimination still exist in their civil, political and social life, can it still
be insisted that widows are not at liberty to choose their domicile upon the death of their husbands but must retain the same,
regardless?
I submit that a widow, like the petitioner and others similarly situated, can no longer be bound by the domicile of the departed
husband, if at all she was before. Neither does she automatically revert to her domicile of origin, but exercising free will, she may
opt to reestablish her domicile of origin. In returning to Tacloban and subsequently, to Barangay Olot, Tolosa, both of which are
located in the First District of Leyte, petitioner amply demonstrated by overt acts, her election of a domicile of choice, in this case,
a reversion to her domicile of origin. Added together, the time when she set up her domicile in the two places sufficed to meet the
one-year requirement to run as Representative of the First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT the petition.
VITUG, J ., separate opinion:
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals and directions and render
steady our strides hence. It only looks back so as to ensure that mistakes in the past are not repeated. A compliant transience of
a constitution belittles its basic function and weakens its goals. A constitution may well become outdated by the realities of time.
When it does, it must be changed but while it remains, we owe it respect and allegiance. Anarchy, open or subtle, has never
been, nor must it ever be, the answer to perceived transitory needs, let alone societal attitudes, or the Constitution might lose its
very essence.
Constitutional provisions must be taken to be mandatory in character unless, either by express statement or by necessary
implication, a different intention is manifest (see Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the fundamental law. These provisions
read:
Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen
of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and
write, and, except the party-list representatives, a registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less than one year immediately preceding the day of the
election.
Sec. 17. The 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. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices
of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of
the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of
proportional representation from the political parties and the parties or organizations registered under the
party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.
The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all laws and regulations
relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that, there being nothing said to the contrary, should
include its authority to pass upon the qualification and disqualification prescribed by law ofcandidates to an elective office.
Indeed, pre-proclamation controversies are expressly placed under the COMELEC's jurisdiction to hear and resolve (Art. IX, C,
Sec. 3, Constitution).
The matter before us specifically calls for the observance of the constitutional one-year residency requirement. The issue
(whether or not there is here such compliance), to my mind, is basically a question of fact or at least inextricably linked to such
determination. The findings and judgment of the COMELEC, in accordance with the long established rule and subject only to a
number of exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what seems to me to be a plain matter. Generally, the term "residence" has
a broader connotation that may mean permanent (domicile), official (place where one's official duties may require him to stay)
or temporary (the place where he sojourns during a considerable length of time). For civil law purposes, i.e., as regards the
exercise of civil rights and the fulfillment of civil obligations, the domicile of a natural person is the place of his habitual residence
(see Article 50, Civil Code). In election cases, the controlling rule is that heretofore announced by this Court in Romualdez
vs. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term
"residence" as used in the election law is synonymous with "domicile," which imports not only an intention
to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such
intention." "Domicile" denotes a fixed permanent residence to which when absent for business or
pleasure, or for like reasons, one intends to return. . . . . Residence thus acquired, however, may be lost
by adopting another choice of domicile. In order, in turn, to acquire a new domicile by choice, there must
concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an
intention to abandon the old domicile. In other words, there must basically be animus manendi coupled
with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite
period of time; the change of residence must be voluntary; and the residence at the place chosen for the
new domicile must be actual.
Using the above tests, I am not convinced that we can charge the COMELEC with having committed grave abuse
of discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunal
concerned begins. It signifies that the protestee must have theretofore been duly proclaimed and has since become a "member"
of the Senate or the House of Representatives. The question can be asked on whether or not the proclamation of a candidate is
just a ministerial function of the Commission on Elections dictated solely on the number of votes cast in an election exercise. I
believe, it is not. A ministerial duty is an obligation the performance of which, being adequately defined, does not allow the use of
further judgment or discretion. The COMELEC, in its particular case, is tasked with the full responsibility of ascertaining all the
facts and conditions such as may be required by law before a proclamation is properly done.
The Court, on its part, should, in my view at least, refrain from any undue encroachment on the ultimate exercise of authority by
the Electoral Tribunals on matters which, by no less than a constitutional fiat, are explicitly within their exclusive domain. The
nagging question, if it were otherwise, would be the effect of the Court's peremptory pronouncement on the ability of the Electoral
Tribunal to later come up with its own judgment in a contest "relating to the election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of Section 6 of Republic Act
No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 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.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases and priority. The Commission and the courts shall give priority
to cases of disqualification by reason of violation of this Act to the end that a final decision shall be
rendered not later than seven days before the election in which the disqualification is sought.
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. Nevertheless, 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, his violation of the provisions of the preceding sections shall not prevent his
proclamation and assumption to office.
I realize that in considering the significance of the law, it may be preferable to look for not so much the specific instances they
ostensibly would cover as the principle they clearly convey. Thus, I will not scoff at the argument that it should be sound to say
that votes cast in favor of the disqualified candidate, whenever ultimately declared as such, should not be counted in his or her
favor and must accordingly be considered to be stray votes. The argument, nevertheless, is far outweighed by the rationale of
the now prevailing doctrine first enunciated in the case of Topacio vs. Paredes (23 Phil. 238 [1912]) which, although later
abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored,
along with the interim case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1 (1989]), Abella (201
SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito (235 SCRA 436 [1994]) rulings. Benito
vs.Comelec was a unanimous decision penned by Justice Kapunan and concurred in by Chief Justice Narvasa, Justices
Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz and Bellosillo
were on official leave). For easy reference, let me quote from the first Labo decision:
Finally, there is the question of whether or not the private respondent, who filed the quo warrantopetition,
can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second
highest number of votes in the election, he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740)
decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes
for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all
disregard as stray. In effect, the second placer won by default. That decision was supported by eight
members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la
Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad
Santos and Melencio-Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.)
One was on official leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier
case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and democratic rule.
That case, which reiterated the doctrine first announced in 1912 in Topacio v.Paredes, (23 Phil. 238) was
supported by ten members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos,
Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without
any dissent, although one reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two
others were on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held:
. . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed
right to suffrage if a candidate who has not acquired the majority or plurality of votes is
proclaimed a winner and imposed as the representative of a constituency, the majority of
which have positively declared through their ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is a fundamental idea in
all republican forms of government 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. (20 Corpus Juris 2nd, S 243, p. 676.)
The fact that the candidate who obtained the highest number of votes is later declared to be disqualified
or not eligible for the office to which he was elected does not necessarily entitle the candidate who
obtained the second highest number of votes to be declared the winner of the elective office. The votes
cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive,
qualified, or eligible, they should not be treated as stray, void or meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to vote for the dismissal of the petition.
MENDOZA, J ., separate opinion:
In my view the issue in this case is whether the Commission on Elections has the power to disqualify candidates on the ground
that they lack eligibility for the office to which they seek to be elected. I think that it has none and that the qualifications of
candidates may be questioned only in the event they are elected, by filing a petition for quo warranto or an election protest in the
appropriate forum, not necessarily in the COMELEC but, as in this case, in the House of Representatives Electoral Tribunal. That
the parties in this case took part in the proceedings in the COMELEC is of no moment. Such proceedings were unauthorized and
were not rendered valid by their agreement to submit their dispute to that body.
The various election laws will be searched in vain for authorized proceedings for determining a candidate's qualifications for an
office before his election. There are none in the Omnibus Election Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987
(R.A. No. 6646), or in the law providing for synchronized elections (R.A. No. 7166). There are, in other words, no provisions for
pre-proclamation contests but only election protests or quo warrantoproceedings against winning candidates.
To be sure, there are provisions denominated for "disqualification," but they are not concerned with a declaration of the
ineligibility of a candidate. These provisions are concerned with the incapacity (due to insanity, incompetence or conviction of an
offense) of a person either to be a candidate or to continue as a candidate for public office. There is also a provision for the
denial or cancellation of certificates of candidacy, but it applies only to cases involving false representations as to certain matters
required by law to be stated in the certificates.
These provisions are found in the following parts of the Omnibus Election Code:
12. Disqualifications. Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any
offense for which he has been sentenced to a penalty of more than eighteen months or for a crime
involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by
competent authority that said insanity or incompetence had been removed or after the expiration of a
period of five years from his service of sentence, unless within the same period he again becomes
disqualified. (Emphasis added)
68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by
final decision of a competent court guilty of, or found by the Commission of having (a) given money or
other material consideration to influence, induce or corrupt the voters or public officials performing
electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85,
86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of
or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code,
unless said person has waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws. (Emphasis added)
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. (Emphasis added)
the Electoral Reforms Law of 1987 (R.A. No. 6646):
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 for 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).
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.
and the Local Government Code of 1991 (R.A. No. 7160):
40. Disqualifications. The following persons are disqualified from running for any elective local
position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of on administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and
continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while entitled "For Cancellation and
Disqualification," contained no allegation that private respondent Imelda Romualdez-Marcos made material representations in
her certificate of candidacy which were false, it sought her disqualification on the ground that "on the basis of her Voter
Registration Record and Certificate of Candidacy, [she] is disqualified from running for the position of Representative,
considering that on election day, May 8, 1995, [she] would have resided less than ten (10) months in the district where she is
seeking to be elected." For its part, the COMELEC's Second Division, in its resolution of April 24, 1995, cancelled her certificate
of candidacy and corrected certificate of candidacy on the basis of its finding that petitioner is "not qualified to run for the position
of Member of the House of Representatives for the First Legislative District of Leyte" and not because of any finding that she had
made false representations as to material matters in her certificate of candidacy.
Montejo's petition before the COMELEC was therefore not a petition for cancellation of certificate of candidacy under 78 of the
Omnibus Election Code, but essentially a petition to declare private respondent ineligible. It is important to note this, because, as
will presently be explained, proceedings under 78 have for their purpose to disqualify a person from being a candidate,
whereas quo warranto proceedings have for their purpose to disqualify a person from holding public office. Jurisdiction over quo
warranto proceedings involving members of the House of Representatives is vested in the Electoral Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions for the cancellation of certificates of candidacy, the allegations
were that the respondent candidates had made false representations in their certificates of candidacy with regard to
their citizenship,
1
age,
2
or residence.
3
But in the generality of cases in which this Court passed upon the qualifications of
respondents for office, this Court did so in the context of election protests
4
or quo warranto proceedings
5
filed after the
proclamation of the respondents or protestees as winners.
Three reasons may be cited to explain the absence of an authorized proceeding for determining before electionthe qualifications
of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his eligibility for the
office. In contrast, whether an individual should be disqualified as a candidate for acts constituting election offenses (e.g., vote
buying, over spending, commission of prohibited acts) is a prejudicial question which should be determined lest he wins because
of the very acts for which his disqualification is being sought. That is why it is provided that if the grounds for disqualification are
established, a candidate will not be voted for; if he has been voted for, the votes in his favor will not be counted; and if for some
reason he has been voted for and he has won, either he will not be proclaimed or his proclamation will be set aside.
6

Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship or, as in this case, his domicile, may take
a long time to make, extending beyond the beginning of the term of the office. This is amply demonstrated in the companion case
(G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's residence was still pending in the
COMELEC even after the elections of May 8, 1995. This is contrary to the summary character of proceedings relating to
certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a ministerial duty of the COMELEC
and its officers.
7
The law is satisfied if candidates state in their certificates of candidacy that they are eligible for the position
which they seek to fill, leaving the determination of their qualifications to be made after the election and only in the event they are
elected. Only in cases involving charges of false representations made in certificates of candidacy is the COMELEC given
jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice President, Senators
and members of the House of Representatives. (R.A. No. 7166, 15) The purpose is to preserve the prerogatives of the House
of Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the Constitution of
the election, returns and qualifications of members of Congress or of the President and Vice President, as the case may be.
By providing in 253 for the remedy of quo warranto for determining an elected official's qualifications after the results of
elections are proclaimed, while being conspicuously silent about a pre-proclamation remedy based on the same ground, the
Omnibus Election Code, or OEC, by its silence underscores the policy of not authorizing any inquiry into the qualifications of
candidates unless they have been elected.
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC amended its
rules on February 15, 1993 so as to provide in Rule 25, 1 the following:
Grounds for disqualification. Any candidate who does not possess all the qualifications of a candidate
as provided for by the Constitution or by existing law or who commits any act declared by law to be
grounds for disqualification may be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such an act is
equivalent to the creation of a cause of action which is a substantive matter which the COMELEC, in the exercise of its
rulemaking power under Art. IX, A, 6 of the Constitution, cannot do. It is noteworthy that the Constitution withholds from the
COMELEC even the power to decide cases involving the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of voters. (Art. IX, C, 2(3))
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is contrary to the
evident intention of the law. For not only in their grounds but also in their consequences are proceedings for "disqualification"
different from those for a declaration of "ineligibility." "Disqualification" proceedings, as already stated, are based on grounds
specified in 12 and 68 of the Omnibus Election Code and in 40 of the Local Government Code and are for the purpose of
barring an individual from becoming a candidate or from continuing as a candidate for public office. In a word, their purpose is
to eliminate a candidate from the race either from the start or during its progress. "Ineligibility," on the other hand, refers to the
lack of the qualifications prescribed in the Constitution or the statutes for holding public office and the purpose of the proceedings
for declaration of ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public office does not imply that he is not disqualified from
becoming a candidate or continuing as a candidate for a public office and vice versa. We have this sort of dichotomy in our
Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in 2 of the law does not imply that he does
not suffer from any of disqualifications provided in 4.
Indeed, provisions for disqualifications on the ground that the candidate is guilty of prohibited election practices or offenses, like
other pre-proclamation remedies, are aimed at the detestable practice of "grabbing the proclamation and prolonging the election
protest,"
8
through the use of "manufactured" election returns or resort to other trickery for the purpose of altering the results of
the election. This rationale does not apply to cases for determining a candidate's qualifications for office before the election. To
the contrary, it is the candidate against whom a proceeding for disqualification is brought who could be prejudiced because he
could be prevented from assuming office even though in end he prevails.
To summarize, the declaration of ineligibility of a candidate may only be sought in an election protest or action forquo
warranto filed pursuant to 253 of the Omnibus Election Code within 10 days after his proclamation. With respect to elective
local officials (e.g., Governor, Vice Governor, members of the Sangguniang Panlalawigan, etc.) such petition must be filed either
with the COMELEC, the Regional Trial Courts, or Municipal Trial Courts, as provided in Art. IX, C, 2(2) of the Constitution. In
the case of the President and Vice President, the petition must be filed with the Presidential Electoral Tribunal (Art. VII, 4, last
paragraph), and in the case of the Senators, with the Senate Electoral Tribunal, and in the case of Congressmen, with the House
of Representatives Electoral Tribunal. (Art. VI, 17) There is greater reason for not allowing before the election the filing of
disqualification proceedings based on alleged ineligibility in the case of candidates for President, Vice President, Senators and
members of the House of Representatives, because of the same policy prohibiting the filing of pre-proclamation cases against
such candidates.
For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-009; that its proceedings in that
case, including its questioned orders, are void; and that the eligibility of petitioner Imelda Romualdez-Marcos for the office of
Representative of the First District of Leyte may only be inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the proceedings of the Commission on Elections in SPA No. 95-009,
including its questioned orders doted April 24, 1995, May 7, 1995, May 11, 1995 and May 25, 1995, declaring petitioner Imelda
Romualdez-Marcos ineligible and ordering her proclamation as Representative of the First District of Leyte suspended. To the
extent that Rule 25 of the COMELEC Rules of Procedure authorizes proceedings for the disqualification of candidates on the
ground of ineligibility for the office, it should considered void.
The provincial board of canvassers should now proceed with the proclamation of petitioner.
Narvasa, C.J., concurs.
PADILLA, J ., dissenting:
I regret that I cannot join the majority opinion as expressed in the well-written ponencia of Mr. Justice Kapunan.
As in any controversy arising out of a Constitutional provision, the inquiry must begin and end with the provision itself. The
controversy should not be blurred by what, to me, are academic disquisitions. In this particular controversy, the Constitutional
provision on point states that "no person shall be a member of the House of Representatives unless he is a natural-born
citizen of the Philippines, and on the day of the election, is at least twenty-five (25) years of age, able to read and write, and
except the party list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a
period of not less than one year immediately preceding the day of the election." (Article VI, section 6)
It has been argued that for purposes of our election laws, the term residence has been understood as synonymous with domicile.
This argument has been validated by no less than the Court in numerous cases
1
where significantly the factual
circumstances clearly and convincingly proved that a person does not effectively lose his domicile of origin if the intention to
reside therein is manifest with his personal presence in the place,coupled with conduct indicative of such intention.
With this basic thesis in mind, it would not be difficult to conceive of different modalities within which the phrase "a resident
thereof (meaning, the legislative district) for a period of not less than one year" would fit.
The first instance is where a person's residence and domicile coincide in which case a person only has to prove that he has been
domiciled in a permanent location for not less than a year before the election.
A second situation is where a person maintains a residence apart from his domicile in which case he would have the luxury of
district shopping, provided of course, he satisfies the one-year residence period in the district as the minimum period for eligibility
to the position of congressional representative for the district.
In either case, one would not be constitutionally disqualified for abandoning his residence in order to return to his domicile of
origin, or better still, domicile of choice; neither would one be disqualified for abandoning altogether his domicile in favor of his
residence in the district where he desires to be a candidate.
The most extreme circumstance would be a situation wherein a person maintains several residences in different districts. Since
his domicile of origin continues as an option as long as there is no effective abandonment (animus non revertendi), he can
practically choose the district most advantageous for him.
All these theoretical scenarios, however, are tempered by the unambiguous limitation that "for a period of not less than one year
immediately preceding the day of the election", he must be a resident in the district where he desires to be elected.
To my mind, the one year residence period is crucial regardless of whether or not the term "residence" is to be synonymous with
"domicile." In other words, the candidate's intent and actual presence in one district must in allsituations satisfy the length of time
prescribed by the fundamental law. And this, because of a definite Constitutional purpose. He must be familiar with the
environment and problems of a district he intends to represent in Congress and the one-year residence in said district would be
the minimum period to acquire such familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the now assailed decision of the Comelec
2nd Division dated 24 April 1995 (as affirmed by the Comelec en banc)
In or about 1938 when respondent was a little over 8 years old, she established her domicile in Tacloban,
Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to 1948 when she
graduated from high school. She pursued her college studies in St. Paul's College, now Divine Word
University of Tacloban, where she earned her degree in Education. Thereafter, she taught in the Leyte
Chinese High School, still in Tacloban City. In 1952 she went to Manila to work with her cousin, the late
Speaker Daniel Z. Romualdez in his office in the House of Representatives. In 1954, she married ex-
president Ferdinand Marcos when he was still a congressman of Ilocos Norte. She lived with him in
Batac, Ilocos Norte and registered there as a voter. When her husband was elected Senator of the
Republic in 1959, she and her husband lived together in San Juan, Rizal where she registered as a voter.
In 1965 when her husband was elected President of the Republic of the Philippines, she lived with him in
Malacanang Palace and registered as a voter in San Miguel, Manila.
During the Marcos presidency, respondent served as a Member of the Batasang Pambansa, Minister of
Human Settlements and Governor of Metro Manila. She claimed that in February 1986, she and her
family were abducted and kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila.
In 1992 respondent ran for election as President of the Philippines and filed her Certificate of Candidacy
wherein she indicated that she is a resident and registered voter of San Juan, Metro Manila. On August
24, 1994, respondent filed a letter with the election officer of San Juan, Metro Manila, requesting for
cancellation of her registration in the Permanent List of Voters in Precinct No. 157 of San Juan, Metro
Manila, in order that she may be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B,
Answer). On August 31, 1994, respondent filed her Sworn Application for Cancellation of Voter's Previous
Registration (Annex 2-C, Answer) stating that she is a duly registered voter in 157-A, Brgy. Maytunas,
San Juan, Metro that she intends to register at Brgy. Olot, Tolosa, Leyte.
On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte. She
filed with the Board of Election Inspectors CE Form No. 1, Voter Registration Record No. 94-3349772,
wherein she alleged that she has resided in the municipality of Tolosa for a period of 6 months (Annex A,
Petition).
On March 8, 1995, respondent filed with the Office of the Provincial Election Supervisor, Leyte, a
Certificate of Candidacy for the position of Representative of the First District of Leyte wherein she also
alleged that she has been a resident in the constituency where she seeks to be elected for a period of 7
months. The pertinent entries therein are as follows:
7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social Worker
8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte
Post Office Address for election purposes: Brgy. Olot, Tolosa, Leyte
9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE
ELECTED IMMEDIATELY PRECEDING ELECTION: ________
Years Seven Months
10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A
FOREIGN COUNTRY.
THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution of the Republic of the
Philippines and will maintain true faith and allegiance thereto; That I will obey the laws, legal orders and
decrees promulgated by the duly-constituted authorities; That the obligation imposed by my oath is
assumed voluntarily, without mental reservation or purpose of evasion; and That the facts stated herein
are true to the best of my knowledge.
(Sgd.) Imelda Romualdez-Marcos
(Signature of Candidate)
2

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisive component or seed of her
disqualification. It is contained in her answer under oath of "seven months" to the query of "residence in the constituency wherein
I seek to be elected immediately preceding the election."
It follows from all the above that the Comelec committed no grave abuse of discretion in holding that petitioner is disqualified from
the position of representative for the 1st congressional district of Leyte in the elections of
8 May 1995, for failure to meet the "not less than one-year residence in the constituency (1st district, Leyte) immediately
preceding the day of election
(8 May 1995)."
Having arrived at petitioner's disqualification to be a representative of the first district of Leyte, the next important issue to resolve
is whether or not the Comelec can order the Board of Canvassers to determine and proclaim the winner out of the remaining
qualified candidates for representative in said district.
I am not unaware of the pronouncement made by this Court in the case of Labo vs. Comelec, G.R. 86564, August 1, 1989, 176
SCRA 1 which gave the rationale as laid down in the early 1912 case of Topacio vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that public elective offices are filled by those who have received the highest
number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of
government 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. (20 Corpus Juris 2nd, S 243, p. 676)
The fact that the candidate who obtained the highest number of votes is later declared to be disqualified
or not eligible for the office to which he was elected does not necessarily entitle the candidate who
obtained the second highest number of votes to be declared the winner of the elective office. The votes
cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive,
qualified, or eligible, they should not be treated as stray, void or meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for other purposes) (84 O.G. 905, 22
February 1988) it is provided that:
. . . Any candidate who has been declared by final judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. 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.
There is no need to indulge in legal hermeneutics to sense the plain and unambiguous meaning of the provision quoted above.
As the law now stands, the legislative policy does not limit its concern with the effect of a final judgement of disqualification
only before the election, but even during or after the election. The law is clear that in all situations, the votes cast for a
disqualified candidate SHALL NOT BE COUNTED. The law has also validated the jurisdiction of the Court or Commission on
Election to continue hearing the petition for disqualification in case a candidate is voted for and receives the highest number of
votes, if for any reason, he is not declared by final judgment before an election to be disqualified.
Since the present case is an after election scenario, the power to suspend proclamation (when evidence of his guilt is strong) is
also explicit under the law. What happens then when after the elections are over, one is declared disqualified? Then, votes cast
for him "shall not be counted" and in legal contemplation, he no longer received the highest number of votes.
It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply because a "winning candidate
is disqualified," but that the law considers him as the candidate who had obtained the highest number of votes as a result of the
votes cast for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court should not re-examine and
consequently abandon the doctrine in the Jun Labo case. It has been stated that "the qualifications prescribed for elective office
cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of
ineligibility" most especially when it is mandated by no less than the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of Canvassers of Leyte to proclaim the
candidate receiving the highest number of votes, from among the qualified candidates, as the duly elected representative of the
1st district of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J ., dissenting:
While I agree with same of the factual bases of the majority opinion, I cannot arrive conjointly at the same conclusion drawn
therefrom Hence, this dissent which assuredly is not formulated "on the basis of the personality of a petitioner in a case."
I go along with the majority in their narration of antecedent facts, insofar as the same are pertinent to this case, and which I have
simplified as follows:
1. Petitioner, although born in Manila, resided during her childhood in the present Tacloban City, she
being a legitimate daughter of parents who appear to have taken up permanent residence therein. She
also went to school there and, for a time, taught in one of the schools in that city.
2. When she married then Rep. Ferdinand E. Marcos who was then domiciled in Batac, Ilocos Norte, by
operation of law she acquired a new domicile in that place in 1954.
3. In the successive years and during the events that happened thereafter, her husband having been
elected as a Senator and then as President, she lived with him and their family in San Juan, Rizal and
then in Malacanang Palace in San Miguel, Manila.
4. Over those years, she registered as a voter and actually voted in Batac, Ilocos Norte, then in San Juan,
Rizal, and also in San Miguel, Manila, all these merely in the exercise of the right of suffrage.
5. It does not appear that her husband, even after he had assumed those lofty positions successively,
ever abandoned his domicile of origin in Batac, Ilocos Norte where he maintained his residence and
invariably voted in all elections.
6. After the ouster of her husband from the presidency in 1986 and the sojourn of the Marcos family in
Honolulu, Hawaii, U.S.A., she eventually returned to the Philippines in 1991 and resided in different
places which she claimed to have been merely temporary residences.
7. In 1992, petitioner ran for election as President of the Philippines and in her certificate of candidacy she
indicated that she was then a registered voter and resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter for the cancellation of her registration in the Permanent List of
Voters in Precinct No. 157 of San Juan, Metro Manila in order that she may "be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte." On August 31, 1994, she followed this up with her Sworn
Application for Cancellation of Voter's Previous Registration wherein she stated that she was a registered
voter in Precinct No. 157-A, Brgy. Maytunas, San Juan, Metro Manila and that she intended to register in
Brgy. Olot, Tolosa, Leyte.
9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte, for
which purpose she filed with the therein Board of Election Inspectors a voter's registration record form
alleging that she had resided in that municipality for six months.
10. On March 8, 1995, petitioner filed her certificate of candidacy for the position of Representative of the
First District of Leyte wherein she alleged that she had been a resident for "Seven Months" of the
constituency where she sought to be elected.
11. On March 29, 1995, she filed an "Amended/Corrected Certificate of Candidacy" wherein her answer in
the original certificate of candidacy to item "8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK,
TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:" was changed or replaced with a new
entry reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of her candidacy, petitioner had complied with the residency requirement of
one year as mandated by no less than Section 6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my colleagues with a dissertation on the difference between residence and domicile.
We have had enough of that and I understand that for purposes of political law and, for that matter of international law, residence
is understood to be synonymous with domicile. That is so understood in our jurisprudence and in American Law, in
contradistinction to the concept of residence for purposes of civil, commercial and procedural laws whenever an issue thereon is
relevant or controlling.
Consequently, since in the present case the question of petitioner's residence is integrated in and inseparable from her domicile,
I am addressing the issue from the standpoint of the concept of the latter term, specifically its permutations into the domicile of
origin, domicile of choice and domicile by operation of law, as understood in American law from which for this case we have
taken our jurisprudential bearings.
My readings inform me that the domicile of the parents at the time of birth, or what is termed the "domicile of origin," constitutes
the domicile of an infant until abandoned, or until the acquisition of a new domicile in a different place.
1
In the instant case, we
may grant that petitioner's domicile of origin,
2
at least as of 1938, was what is now Tacloban City.
Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by birth, domicile by choice, and domicile
by operation of law. The first is the common case of the place of birth or domicilium originis, the second is that which is voluntarily
acquired by a party or domicilium propio motu; the last which is consequential, as that of a wife arising from marriage,
3
is
sometimes called domicilium necesarium. There is no debate that the domicile of origin can be lost or replaced by a domicile of
choice or a domicile by operation of law subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only international or American but of
our own enactment,
4
she acquired her husband's domicile of origin in Batac, Ilocos Norte and correspondingly lost her own
domicile of origin in Tacloban City.
Her subsequent changes of residence to San Juan, Rizal, then to San Miguel, Manila, thereafter to Honolulu, Hawaii, and
back to now San Juan, Metro Manila do not appear to have resulted in her thereby acquiring new domiciles of choice. In fact,
it appears that her having resided in those places was by reason of the fortunes or misfortunes of her husband and his
peregrinations in the assumption of new official positions or the loss of them. Her residence in Honolulu and, of course, those
after her return to the Philippines were, as she claimed, against her will or only for transient purposes which could not have
invested them with the status of domiciles of choice.
5

After petitioner's return to the Philippines in 1991 and up to the present imbroglio over her requisite residency in Tacloban City or
Olot, Tolosa, Leyte, there is no showing that she ever attempted to acquire any other domicile of choice which could have
resulted in the abandonment of her legal domicile in Batac, Ilocos Norte. On that score, we note the majority's own
submission
6
that, to successfully effect a change of domicile, one must demonstrate (a) an actual removal or an actual change of
domicile, (b) a bona fide intention of abandoning the former place of residence and establishing a new one, and (c) acts which
correspond with the purpose.
We consequently have to also note that these requirements for the acquisition of a domicile of choice apply whether what is
sought to be changed or substituted is a domicile of origin (domicilium originis) or a domicile by operation of law (domicilium
necesarium). Since petitioner had lost her domicilium originis which had been replaced by her domicilium necesarium, it is
therefore her continuing domicile in Batac, Ilocos Norte which, if at all, can be the object of legal change under the contingencies
of the case at bar.
To get out of this quandary, the majority decision echoes the dissenting opinion of Commissioner Regalado E. Maambong in
SPA 95-009 of the Commission on Elections,
7
and advances this novel proposition.
It may be said that petitioner lost her domicile of origin by operation of law as a result of her marriage to
the late President Ferdinand E. Marcos in 1952 (sic, 1954). By operation of law (domicilium necesarium),
her legal domicile at the time of her marriage became Batac, Ilocos Norte although there were no
indications of an intention on her part to abandon her domicile of origin. Because of her husband's
subsequent death and through the operation of the provisions of the New Family Code already in force at
the time, however, her legal domicile automatically reverted to her domicile of origin. . . . (Emphasis
supplied).
Firstly, I am puzzled why although it is conceded that petitioner had acquired a domicilium necesarium in Batac, Ilocos Norte, the
majority insists on making a qualification that she did not intend to abandon her domicile of origin. I find this bewildering since, in
this situation, it is the law that declares where petitioner's domicile is at any given time, and not her self-serving or putative intent
to hold on to her former domicile. Otherwise, contrary to their own admission that one cannot have more than one domicile at a
time,
8
the majority would be suggesting that petitioner retained Tacloban City as (for lack of a term in law since it does not exist
therein) the equivalent of what is fancied as a reserved, dormant, potential, or residual domicile.
Secondly, domicile once lost in accordance with law can only be recovered likewise in accordance with law. However, we are
here being titillated with the possibility of an automatic reversion to or reacquisition of a domicile of origin after the termination of
the cause for its loss by operation of law. The majority agrees that since petitioner lost her domicile of origin by her marriage, the
termination of the marriage also terminates that effect thereof. I am impressed by the ingeniousness of this theory which proves
that, indeed, necessity is the mother of inventions. Regretfully, I find some difficulty in accepting either the logic or the validity of
this argument.
If a party loses his domicile of origin by obtaining a new domicile of choice, he thereby voluntarily abandons the former in favor of
the latter. If, thereafter, he abandons that chosen domicile, he does not per se recover his original domicile unless, by
subsequent acts legally indicative thereof, he evinces his intent and desire to establish the same as his new domicile, which is
precisely what petitioner belatedly and, evidently just for purposes of her candidacy, unsuccessfully tried to do.
One's subsequent abandonment of his domicile of choice cannot automatically restore his domicile of origin, not only because
there is no legal authority therefor but because it would be absurd Pursued to its logical consequence, that theory of ipso
jure reversion would rule out the fact that said party could already very well have obtained another domicile, either of choice or by
operation of law, other than his domicile of origin. Significantly and obviously for this reason, the Family Code, which the majority
inexplicably invokes, advisedly does not regulate this contingency since it would impinge on one's freedom of choice.
Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice (unless we assume that she entered
into the marital state against her will) but, on top of that, such abandonment was further affirmed through her acquisition of a new
domicile by operation of law. In fact, this is even a case of both voluntary andlegal abandonment of a domicile of origin. With
much more reason, therefore, should we reject the proposition that with the termination of her marriage in 1989, petitioner had
supposedly per se and ipso facto reacquired her domicile of origin which she lost in 1954. Otherwise, this would be tantamount to
saying that during the period of marital coverture, she was simultaneously in possession and enjoyment of a domicile of origin
which was only in a state of suspended animation.
Thus, the American rule is likewise to the effect that while after the husband's death the wife has the right to elect her own
domicile,
9
she nevertheless retains the last domicile of her deceased husband until she makes an actual change.
10
In the
absence of affirmative evidence, to the contrary, the presumption is that a wife's domicile or legal residence follows that of her
husband and will continue after his death.
11

I cannot appreciate the premises advanced in support of the majority's theory based on Articles 68 and 69 of the Family Code. All
that is of any relevance therein is that under this new code, the right and power to fix the family domicile is now shared by the
spouses. I cannot perceive how that joint right, which in the first place was never exercised by the spouses, could affect the
domicile fixed by the law for petitioner in 1954 and, for her husband, long prior thereto. It is true that a wife now has the
coordinate power to determine the conjugal or family domicile, but that has no bearing on this case. With the death of her
husband, and each of her children having gotten married and established their own respective domiciles, the exercise of that joint
power was and is no longer called for or material in the present factual setting of this controversy. Instead, what is of concern in
petitioner's case was the matter of her having acquired or not her own domicile of choice.
I agree with the majority's discourse on the virtues of the growing and expanded participation of women in the affairs of the
nation, with equal rights and recognition by Constitution and statutory conferment. However, I have searched in vain for a specific
law or judicial pronouncement which either expressly or by necessary implication supports the majority's desired theory of
automatic reacquisition of or reversion to the domicilium originis of petitioner. Definitely, as between
the settled and desirable legal norms that should govern this issue, there is a world of difference; and, unquestionably, this
should be resolved by legislative articulation but not by the eloquence of the well-turned phrase.
In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not having automatically reacquired any
domicile therein, she cannot legally claim that her residency in the political constituency of which it is a part continued since her
birth up to the present. Respondent commission was, therefore, correct in rejecting her pretension to that effect in her
amended/corrected certificate of candidacy, and in holding her to her admission in the original certificate that she had actually
resided in that constituency for only seven months prior to the election. These considerations render it unnecessary to further
pass upon the procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.
DAVIDE, JR., J ., dissenting:
I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M. Kapunan, more particularly on the issue
of the petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings of the COMELEC may be brought to
this Court only by the special civil action for certiorari under Rule 65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251
[1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without or in excess of jurisdiction or with grave
abuse of discretion (Section 1, Rule 65, Rules of Court). Since the COMELEC has, undoubtedly, jurisdiction over the private
respondent's petition, the only issue left is whether it acted with grave abuse of discretion in disqualifying the petitioner.
My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the COMELEC Second Division and the En
Banc resolution of 7 May 1995 discloses total absence of abuse of discretion, much less grave abuse thereof. The resolution of
the Second Division dispassionately and objectively discussed in minute details the facts which established beyond cavil that
herein petitioner was disqualified as a candidate on the ground of lack of residence in the First Congressional District of Leyte. It
has not misapplied, miscomprehended, or misunderstood facts or circumstances of substance pertinent to the issue of her
residence.
The majority opinion, however, overturned the COMELEC's findings of fact for lack of proof that the petitioner has abandoned
Tolosa as her domicile of origin, which is allegedly within the First Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the COMELEC, either by admission or by documentary evidence,
overwhelming proof of the loss or abandonment of her domicile of origin, which is Tacloban City and not Tolosa, Leyte. Assuming
that she decided to live again in her domicile of origin, that became her second domicile of choice, where her stay, unfortunately,
was for only seven months before the day of the election. She was then disqualified to be a candidate for the position of
Representative of the First Congressional District of Leyte. A holding to the contrary would be arbitrary.
It may indeed be conceded that the petitioner's domicile of choice was either Tacloban City or Tolosa, Leyte. Nevertheless,
she lost it by operation of law sometime in May 1954 upon her marriage to the then Congressman (later, President) Ferdinand E.
Marcos. A domicile by operation of law is that domicile which the law attributes to a person, independently of his own intention or
actual residence, as results from legal domestic relations as that of the wife arising from marriage (28 C.J.S. Domicile 7, 11).
Under the governing law then, Article 110 of the Civil Code, her new domicile or her domicile of choice was the domicile of her
husband, which was Batac, Ilocos Norte. Said Article reads as follows:
Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living
with the husband if he should live abroad unless in the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino states:
Although the duty of the spouses to live together is mutual, the husband has a predominant right because
he is empowered by law to fix the family residence. This right even predominates over some rights
recognized by law in the wife. For instance, under article 117 the wife may engage in business or practice
a profession or occupation. But because of the power of the husband to fix the family domicile he may fix
it at such a place as would make it impossible for the wife to continue in business or in her profession. For
justifiable reasons, however, the wife may be exempted from living in the residence chosen by the
husband. The husband cannot validly allege desertion by the wife who refuses to follow him to a new
place of residence, when it appears that they have lived for years in a suitable home belonging to the
wife, and that his choice of a different home is not made in good faith. (Commentaries and Jurisprudence
on the Civil Code of the Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses her own domicile and, by operation of law, acquires that of her husband,
no matter where the wife actually lives or what she believes or intends. Her domicile is fixed in the sense that it is declared to be
the same as his, and subject to certain limitations, he can change her domicile by changing his own (25 Am Jur 2d Domicile 48,
37).
It must, however, be pointed out that under Article 69 of the Family Code, the fixing of the family domicile is no longer the sole
prerogative of the husband, but is now a joint decision of the spouses, and in case of disagreement the court shall decide. The
said article uses the term "family domicile," and not family residence, as "the spouses may have multiple residences, and the wife
may elect to remain in one of such residences, which may destroy the duty of the spouses to live together and its corresponding
benefits" (ALICIA V. SEMPIO-DIY, Handbook on the Family Code of the Philippines, [1988], 102).
The theory of automatic restoration of a woman's domicile of origin upon the death of her husband, which the majority opinion
adopts to overcome the legal effect of the petitioner's marriage on her domicile, is unsupported by law and by jurisprudence. The
settled doctrine is that after the husband's death the wife has a right to elect her own domicile, but she retains the last domicile of
her husband until she makes an actual change (28 C.J.S. Domicile 12, 27). Or, on the death of the husband, the power of the
wife to acquire her own domicile is revived, but until she exercises the power her domicile remains that of the husband at the time
of his death (25 Am Jur 2d Domicile 62, 45). Note that what is revived is not her domicile of origin but her power to acquire her
own domicile.
Clearly, even after the death of her husband, the petitioner's domicile was that of her husband at the time of his death which
was Batac, Ilocos Norte, since their residences in San Juan, Metro Manila, and San Miguel, Manila, were their residences for
convenience to enable her husband to effectively perform his official duties. Their residence in San Juan was a conjugal home,
and it was there to which she returned in 1991 when she was already a widow. In her sworn certificate of candidacy for the Office
of the President in the synchronized elections of May 1992, she indicated therein that she was a resident of San Juan, Metro
Manila. She also voted in the said elections in that place.
On the basis of her evidence, it was only on 24 August 1994 when she exercised her right as a widow to acquire her own
domicile in Tolosa, Leyte, through her sworn statement requesting the Election Officer of San Juan, Metro Manila, to cancel her
registration in the permanent list of voters in Precinct 157 thereat and praying that she be "re-registered or transferred to Brgy.
Olot, Tolosa, Leyte, the place of [her] birth and permanent residence" (photocopy of Exhibit "B," attached as Annex "2" of private
respondent Montejo's Comment). Notably, she contradicted this sworn statement regarding her place of birth when, in her Voter's
Affidavit sworn to on 15 March 1992 (photocopy of Exhibit "C," attached as Annex "3," Id.), her Voter Registration Record sworn
to on 28 January 1995 (photocopy of Exhibit "E," attached as Annex "5," Id.), and her Certificate of Candidacy sworn to on 8
March 1995 (photocopy of Exhibit "A," attached as Annex "1," Id.), she solemnly declared that she was born in Manila.
The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa, Leyte? In the affidavit attached to her
Answer to the petition for disqualification (Annex "I" of Petition), she declared under oath that her "domicile or residence is
Tacloban City." If she did intend to return to such domicile or residence of origin why did she inform the Election Officer of San
Juan that she would transfer to Olot, Tolosa, Leyte, and indicate in her Voter's Registration Record and in her certificate of
candidacy that her residence is Olot, Tolosa, Leyte? While this uncertainty is not important insofar as residence in the
congressional district is concerned, it nevertheless proves that forty-one years had already lapsed since she had lost or
abandoned her domicile of origin by virtue of marriage and that such length of time diminished her power of recollection or
blurred her memory.
I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil. 294 [1954]), and the subsequent cases
which established the principle that absence from original residence or domicile of origin to pursue studies, practice one's
profession, or engage in business in other states does not constitute loss of such residence or domicile. So is the reliance on
Section 117 of the Omnibus Election Code which provides that transfer of residence to any other place by reason of one's
"occupation; profession; employment in private and public service; educational activities; work in military or naval reservations;
service in the army, navy or air force, the constabulary or national police force; or confinement or detention in government
institutions in accordance with law" is not deemed as loss of original residence. Those cases and legal provision do not include
marriage of a woman. The reason for the exclusion is, of course, Article 110 of the Civil Code. If it were the intention of this Court
or of the legislature to consider the marriage of a woman as a circumstance which would not operate as an abandonment of
domicile (of origin or of choice), then such cases and legal provision should have expressly mentioned the same.
This Court should not accept as gospel truth the self-serving claim of the petitioner in her affidavit (Annex "A" of her Answer in
COMELEC SPA No. 95-009; Annex "I" of Petition) that her "domicile or residence of origin is Tacloban City," and that she "never
intended to abandon this domicile or residence of origin to which [she] always intended to return whenever absent." Such a claim
of intention cannot prevail over the effect of Article 110 of the Civil Code. Besides, the facts and circumstances or the vicissitudes
of the petitioner's life after her marriage in 1954 conclusively establish that she had indeed abandoned her domicile of origin and
had acquired a new oneanimo et facto (KOSSUTH KENT KENNAN, A Treatise on Residence and Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the petitioner's claim that she "merely committed an honest mistake" in writing
down the word "seven" in the space provided for the residency qualification requirement in the certificate of candidacy. Such a
claim is self-serving and, in the light of the foregoing disquisitions, would be all sound and fury signifying nothing. To me, she did
not commit any mistake, honest or otherwise; what she stated was the truth.
The majority opinion also disregards a basic rule in evidence that he who asserts a fact or the affirmative of an issue has the
burden of proving it (Imperial Victory Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of Appeals,
221 SCRA 19 [1993]). Having admitted marriage to the then Congressman Marcos, the petitioner could not deny the legal
consequence thereof on the change of her domicile to that of her husband. The majority opinion rules or at least concludes that
"[b]y operation of law (domicilium necesarium), her legal domicile at the time of her marriage automatically became Batac, Ilocos
Norte." That conclusion is consistent with Article 110 of the Civil Code. Since she is presumed to retain her deceased husband's
domicile until she exercises her revived power to acquire her own domicile, the burden is upon her to prove that she has
exercised her right to acquire her own domicile. She miserably failed to discharge that burden.
I vote to deny the petition.
Separate Opinions
PUNO, J ., concurring:
It was Aristotle who taught mankind that things that are alike should be treated alike, while things that are unalike should be
treated unalike in proportion to their unalikeness.
1
Like other candidates, petitioner has clearly met the residence requirement
provided by Section 6, Article VI of the Constitution.
2
We cannot disqualify her and treat her unalike, for the Constitution
guarantees equal protection of the law. I proceed from the following factual and legal propositions:
First. There is no question that petitioner's original domicile is in Tacloban, Leyte. Her parents were domiciled in Tacloban. Their
ancestral house is in Tacloban. They have vast real estate in the place. Petitioner went to school and thereafter worked there. I
consider Tacloban as her initial domicile, both her domicile of origin and her domicile of choice. Her domicile of origin as it was
the domicile of her parents when she was a minor; and her domicile of choice, as she continued living there even after reaching
the age of majority.
Second. There is also no question that in May, 1954, petitioner married the late President Ferdinand E. Marcos. By contracting
marriage, her domicile became subject to change by law, and the right to change it was given by Article 110 of the Civil Code
provides:
Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living with
the husband if he should live abroad unless in the service of the Republic.
3
(Emphasis supplied)
In De la Via v. Villareal and Geopano,
4
this Court explained why the domicile of the wife ought to follow that of
the husband. We held: "The reason is founded upon the theoretic identity of person and interest between the
husband and the wife, and the presumption that, from the nature of the relation, the home of one is the home of
the other. It is intended to promote, strengthen, and secure their interests in this relation, as it ordinarily exists,
where union and harmony prevail."
5
In accord with this objective, Article 109 of the Civil Code also obligated the
husband and wife "to live together."
Third. The difficult issues start as we determine whether petitioner's marriage to former President Marcos ipso facto resulted in
the loss of her Tacloban domicile. I respectfully submit that her marriage by itself alone did not cause her to lose her Tacloban
domicile. Article 110 of the Civil Code merely gave the husband the right to fix the domicile of the family. In the exercise of the
right, the husband may explicitly choose the prior domicile of his wife, in which case, the wife's domicile remains unchanged. The
husband can also implicitly acquiesce to his wife's prior domicile even if it is different. So we held in de la Via,
6

. . . . When married women as well as children subject to parental authority live, with the acquiescence of
their husbands or fathers, in a place distinct from where the latter live, they have their
ownindependent domicile. . . .
It is not, therefore, the mere fact of marriage but the deliberate choice of a different domicile by the husband that
will change the domicile of a wife from what it was prior to their marriage. The domiciliary decision made by the
husband in the exercise of the right conferred by Article 110 of the Civil Code binds the wife. Any and all acts of a
wife during her coverture contrary to the domiciliary choice of the husband cannot change in any way the domicile
legally fixed by the husband. These acts are void not only because the wife lacks the capacity to choose her
domicile but also because they are contrary to law and public policy.
In the case at bench, it is not disputed that former President Marcos exercised his right to fix the family domicile and established
it in Batac, Ilocos Norte, where he was then the congressman. At that particular point of time and throughout their married life,
petitioner lost her domicile in Tacloban, Leyte. Since petitioner's Batac domicile has been fixed by operation of law, it was not
affected in 1959 when her husband was elected as Senator, when they lived in San Juan, Rizal and where she registered as a
voter. It was not also affected in 1965 when her husband was elected President, when they lived in Malacaang Palace, and
when she registered as a voter in San Miguel, Manila. Nor was it affected when she served as a member of the Batasang
Pambansa, Minister of Human Settlements and Governor of Metro Manila during the incumbency of her husband as President of
the nation. Under Article 110 of the Civil Code, it was only her husband who could change the family domicile in Batac and the
evidence shows he did not effect any such change. To a large degree, this follows the common law that "a woman on her
marriage loses her own domicile and by operation of law, acquires that of her husband, no matter where the wife actually lives or
what she believes or intends."
7

Fourth. The more difficult task is how to interpret the effect of the death on September 28, 1989 of former President Marcos on
petitioner's Batac domicile. The issue is of first impression in our jurisdiction and two (2) schools of thought contend for
acceptance. One is espoused by our distinguished colleague, Mr. Justice Davide, Jr., heavily relying on American
authorities.
8
He echoes the theory that after the husband's death, the wife retains the last domicile of her husband until she
makes an actual change.
I do not subscribe to this submission. The American case law that the wife still retains her dead husband's domicile is based
on ancient common law which we can no longer apply in the Philippine setting today. The common law identified the domicile of
a wife as that of the husband and denied to her the power of acquiring a domicile of her own separate and apart from him.
9
Legal
scholars agree that two (2) reasons support this common law doctrine. The first reason as pinpointed by the legendary
Blackstone is derived from the view that "the very being or legal existence of the woman is suspended during
the marriage, or at least is incorporated and consolidated into that of the husband."
10
The second reason lies in "the desirability
of having the interests of each member of the family unit governed by the same law."
11
Thepresumption that the wife retains the
domicile of her deceased husband is an extension of this common law concept. The concept and its extension have provided
some of the most iniquitous jurisprudence against women. It was under common law that the 1873 American case of Bradwell
v. Illinois
12
was decided where women were denied the right to practice law. It was unblushingly ruled that "the natural and
proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life . . . This is
the law of the Creator." Indeed, the rulings relied upon by Mr. Justice Davide in CJS
13
and AM JUR 2d
14
are American state
court decisions handed down between the years 1917
15
and 1938,
16
or before the time when women were accorded equality of
rights with men. Undeniably, the women's liberation movement resulted in far-ranging state legislations in the United States to
eliminate gender inequality.
17
Starting in the decade of the seventies, the courts likewise liberalized their rulings as they started
invalidating laws infected with gender-bias. It was in 1971 when the US Supreme Court in Reed v. Reed,
18
struck a big blow for
women equality when it declared as unconstitutional an Idaho law that required probate courts to choose male family members
over females as estate administrators. It held that mere administrative inconvenience cannot justify a sex-based
distinction. These significant changes both in law and in case law on the status of women virtually obliterated the iniquitous
common law surrendering the rights of married women to their husbands based on the dubious theory of the parties' theoretic
oneness. The Corpus Juris Secundum editors did not miss the relevance of this revolution on women's right as they observed:
"However, it has been declared that under modern statutes changing the status of married women and departing from the
common law theory of marriage, there is no reason why a wife may not acquire a separate domicile for every purpose known to
the law."
19
In publishing in 1969 the Restatement of the Law, Second (Conflict of Laws 2d), the reputable American Law Institute
also categorically stated that the view of Blackstone ". . . is no longer held. As the result of statutes and court decisions, a wife
now possesses practically the same rights and powers as her unmarried sister."
20

In the case at bench, we have to decide whether we should continue clinging to the anachronistic common law that demeans
women, especially married women. I submit that the Court has no choice except to break away from this common law rule, the
root of the many degradations of Filipino women. Before 1988, our laws particularly the Civil Code, were full of gender
discriminations against women. Our esteemed colleague, Madam Justice Flerida Ruth Romero, cited a few of them as follows:
21

xxx xxx xxx
Legal Disabilities Suffered by Wives
Not generally known is the fact that under the Civil Code, wives suffer under certain restrictions or
disabilities. For instance, the wife cannot accept gifts from others, regardless of the sex of the giver or the
value of the gift, other than from her very close relatives, without her husband's consent. She may accept
only from, say, her parents, parents-in-law, brothers, sisters and the relatives within the so-called fourth
civil degree. She may not exercise her profession or occupation or engage in business if her husband
objects on serious grounds or if his income is sufficient to support their family in accordance with their
social standing. As to what constitutes "serious grounds" for objecting, this is within the discretion of the
husband.
xxx xxx xxx
Because of the present inequitable situation, the amendments to the Civil Law being proposed by the
University of the Philippines Law Center would allow absolute divorce which severes the matrimonial ties,
such that the divorced spouses are free to get married a year after the divorce is decreed by the courts.
However, in order to place the husband and wife on an equal footing insofar as the bases for divorce are
concerned, the following are specified as the grounds for absolute divorce: (1) adultery or having a
paramour committed by the respondent in any of the ways specified in the Revised Penal Code or (2) an
attempt by the respondent against the life of the petitioner which amounts to attempted parricide under
the Revised Penal Code; (3) abandonment of the petitioner by the respondent without just cause for a
period of three consecutive years; or (4) habitual maltreatment.
With respect to property relations, the husband is automatically the administrator of the conjugal property
owned in common by the married couple even if the wife may be the more astute or enterprising partner.
The law does not leave it to the spouses to decide who shall act as such administrator. Consequently, the
husband is authorized to engage in acts and enter into transactions beneficial to the conjugal partnership.
The wife, however, cannot similarly bind the partnership without the husband's consent.
And while both exercise joint parental authority over their children, it is the father whom the law
designates as the legal administrator of the property pertaining to the unemancipated child.
Taking the lead in Asia, our government exerted efforts, principally through legislations, to eliminate inequality
between men and women in our land. The watershed came on August 3, 1988 when our Family Code took effect
which, among others, terminated the unequal treatment of husband and wife as to their rights and
responsibilities.
22

The Family Code attained this elusive objective by giving new rights to married women and by abolishing sex-based privileges of
husbands. Among others, married women are now given the joint right to administer the family property, whether in the absolute
community system or in the system of conjugal partnership;
23
joint parental authority over their minor children, both over their
persons as well as their properties;
24
joint responsibility for the support of the family;
25
the right to jointly manage the
household;
26
and, the right to object to their husband's exercise of profession, occupation, business or activity.
27
Of particular
relevance to the case at bench is Article 69 of the Family Code which took away the exclusive right of the husband to fix the
family domicile and gave it jointly to the husband and the wife, thus:
Art. 69. The husband and wife shall fix the family domicile. In case of disagreement, the court shall
decide.
The court may exempt one spouse from living with the other if the latter should live abroad or there are
other valid and compelling reasons for the exemption. However, such exemption shall not apply if the
same is not compatible with the solidarity of the family. (Emphasis supplied)
Article 69 repealed Article 110 of the Civil Code. Commenting on the duty of the husband and wife to live
together, former Madam Justice Alice Sempio-Diy of the Court of Appeals specified the instances when a wife
may now refuse to live with her husband, thus:
28

(2) The wife has the duty to live with her husband, but she may refuse to do so in certain cases like:
(a) If the place chosen by the husband as family residence is dangerous to her Life;
(b) If the husband subjects her to maltreatment or abusive conduct or insults, making
common life impossible;
(c) If the husband compels her to live with his parents, but she cannot get along with her
mother-in-law and they have constant quarrels (Del Rosario v. Del Rosario, CA, 46 OG
6122);
(d) Where the husband has continuously carried illicit relations for 10 years with different
women and treated his wife roughly and without consideration. (Dadivas v. Villanueva, 54
Phil. 92);
(e) Where the husband spent his time in gambling, giving no money to his family for food
and necessities, and at the same time insulting his wife and laying hands on her.
(Panuncio v. Sula, CA, 34 OG 129);
(f) If the husband has no fixed residence and lives a vagabond life as a tramp (1 Manresa
329);
(g) If the husband is carrying on a shameful business at home (Gahn v. Darby, 38 La.
Ann. 70).
The inescapable conclusion is that our Family Code has completely emancipated the wife from the control of the
husband, thus abandoning the parties' theoretic identity of interest. No less than the late revered Mr. Justice
J.B.L. Reyes who chaired the Civil Code Revision Committee of the UP Law Center gave this insightful view in
one of his rare lectures after retirement:
29

xxx xxx xxx
The Family Code is primarily intended to reform the family law so as to emancipate the wife from the
exclusive control of the husband and to place her at parity with him insofar as the family is concerned.The
wife and the husband are now placed on equal standing by the Code. They are now joint administrators of
the family properties and exercise joint authority over the persons and properties of their children. This
means a dual authority in the family. The husband will no longer prevail over the wife but she has to agree
on all matters concerning the family. (Emphasis supplied)
In light of the Family Code which abrogated the inequality between husband and wife as started and perpetuated
by the common law, there is no reason in espousing the anomalous rule that the wife still retains the domicile of
her dead husband. Article 110 of the Civil Code which provides the statutory support for this stance has been
repealed by Article 69 of the Family Code. By its repeal, it becomes a dead-letter law, and we are not free to
resurrect it by giving it further effect in any way or manner such as by ruling that the petitioner is still bound by the
domiciliary determination of her dead husband.
Aside from reckoning with the Family Code, we have to consider our Constitution and its firm guarantees of due process and
equal protection of
law.
30
It can hardly be doubted that the common law imposition on a married woman of her dead husband's domicile even
beyond his grave is patently discriminatory to women. It is a gender-based discrimination and is not rationally related to the
objective of promoting family solidarity. It cannot survive a constitutional challenge. Indeed, compared with our previous
fundamental laws, the 1987 Constitution is more concerned with equality between sexes as it explicitly commands that the
State ". . . shall ensure fundamental equality before the law of women and men." To be exact, section 14, Article II provides: "The
State recognizes the role of women in nation building, and shall ensure fundamental equality before the law of women and men.
We shall be transgressing the sense and essence of this constitutional mandate if we insist on giving our women the caveman's
treatment.
Prescinding from these premises, I respectfully submit that the better stance is to rule that petitioner reacquired her Tacloban
domicile upon the death of her husband in 1989. This is the necessary consequence of the view that petitioner's Batac dictated
domicile did not continue after her husband's death; otherwise, she would have no domicile and that will violate the universal rule
that no person can be without a domicile at any point of time. This stance also restores the right of petitioner to choose her
domicile before it was taken away by Article 110 of the Civil Code, a right now recognized by the Family Code and protected by
the Constitution. Likewise, I cannot see the fairness of the common law requiring petitioner to choose again her Tacloban
domicile before she could be released from her Batac domicile. She lost her Tacloban domicile not through her act but through
the act of her deceased husband when he fixed their domicile in Batac. Her husband is dead and he cannot rule her beyond the
grave. The law disabling her to choose her own domicile has been repealed. Considering all these, common law should not put
the burden on petitioner to prove she has abandoned her dead husband's domicile. There is neither rhyme nor reason for this
gender-based burden.
But even assuming arguendo that there is need for convincing proof that petitioner chose to reacquire her Tacloban domicile,
still, the records reveal ample evidence to this effect. In her affidavit submitted to the respondent COMELEC, petitioner averred:
xxx xxx xxx
36. In November, 1991, I came home to our beloved country, after several requests for my return were
denied by President Corazon C. Aquino, and after I filed suits for our Government to issue me my
passport.
37. But I came home without the mortal remains of my beloved husband, President Ferdinand E. Marcos,
which the Government considered a threat to the national security and welfare.
38. Upon my return to the country, I wanted to immediately live and reside in Tacloban City or in Olot,
Tolosa, Leyte, even if my residences there were not livable as they had been destroyed and cannibalized.
The PCGG, however, did not permit and allow me.
39. As a consequence, I had to live at various times in the Westin Philippine Plaza in Pasay City, a
friend's apartment on Ayala Avenue, a house in South Forbes Park which my daughter rented, and Pacific
Plaza, all in Makati.
40. After the 1992 Presidential Elections, I lived and resided in the residence of my brother in San Jose,
Tacloban City, and pursued my negotiations with PCGG to recover my sequestered residences in
Tacloban City and Barangay Olot, Tolosa, Leyte.
40.1 In preparation for my observance of All Saints' Day and All Souls' Day that year, I
renovated my parents' burial grounds and entombed their bones which had been
excalvated, unearthed and scattered.
41. On November 29, 1993, I formally wrote PCGG Chairman Magtanggol Gunigundo for permissions to

. . . rehabilitate . . . (o)ur ancestral house in Tacloban and farmhouse in Olot, Leyte . . . to
make them livable for us the Marcos family to have a home in our own motherland.
xxx xxx xxx
42. It was only on 06 June 1994, however, when PCGG Chairman Gunigundo, in his letter to Col. Simeon
Kempis, Jr., PCGG Region 8 Representative, allowed me to repair and renovate my Leyte residences. I
quote part of his letter:
Dear Col. Kempis,
Upon representation by Mrs. Imelda R. Marcos to this Commission, that she intends to
visit our sequestered properties in Leyte, please allow her access thereto. She may also
cause repairs and renovation of the sequestered properties, in which event, it shall be
understood that her undertaking said repairs is not authorization for her to take over said
properties, and that all expenses shall be for her account and not reimbursable. Please
extend the necessary courtesy to her.
xxx xxx xxx
43. I was not permitted, however, to live and stay in the Sto. Nio Shrine residence in Tacloban City
where I wanted to stay and reside, after repairs and renovations were completed. In August 1994, I
transferred from San Jose, Tacloban City, to my residence in Barangay Olot, Tolosa, Leyte, when PCGG
permitted me to stay and live there.
It is then clear that in 1992 petitioner reestablished her domicile in the First District of Leyte. It is not disputed that
in 1992, she first lived at the house of her brother in San Jose, Tacloban City and later, in August 1994, she
transferred her residence in Barangay Olot, Tolosa, Leyte. Both Tacloban City and the municipality of Olot are
within the First District of Leyte. Since petitioner reestablished her old domicile in 1992 in the First District of
Leyte, she more than complied with the constitutional requirement of residence
". . . for a period of not less than one year immediately preceding the day of the election," i.e., the May 8, 1995
elections.
The evidence presented by the private respondent to negate the Tacloban domicile of petitioner is nil. He presented petitioner's
Voter's Registration Record filed with the Board of Election Inspectors of Precinct 10-A of Barangay Olot, Tolosa, Leyte wherein
she stated that her period of residence in said barangay was six (6) months as of the date of her filing of said Voter's Registration
Record on January 28, 1995.
31
This statement in petitioner's Voter's Registration Record is a non-prejudicial admission. The
Constitution requires at least one (1) year residence in the district in which the candidate shall be elected. In the case at bench,
the reference is the First District of Leyte. Petitioner's statement proved that she resided in Olot six (6) months before January
28, 1995 but did not disprove that she has also resided in Tacloban City starting 1992. As aforestated, Olot and Tacloban City
are both within the First District of Leyte, hence, her six (6) months residence in Olot should be counted not against, but in her
favor. Private respondent also presented petitioner's Certificate of Candidacy filed on March 8, 1995
32
where she placed seven
(7) months after Item No. 8 which called for information regarding "residence in the constituency where I seek to be elected
immediately preceding the election." Again, this original certificate of candidacy has no evidentiary value because an March 1,
1995 it was corrected by petitioner. In her Amended/Corrected Certificate of Candidacy,
33
petitioner wrote "since childhood" after
Item No. 8. The amendment of a certificate of candidacy to correct a bona fide mistake has been allowed by this Court as a
matter of course and as a matter of right. As we held in Alialy v. COMELEC,
34
viz.:
xxx xxx xxx
The absence of the signature of the Secretary of the local chapter N.P in the original certificate of
candidacy presented before the deadline September 11, 1959, did not render the certificate invalid.The
amendment of the certificate, although at a date after the deadline, but before the election, was
substantial compliance with the law, and the defect was cured.
It goes without saying that petitioner's erroneous Certificate of Candidacy filed on March 8, 1995 cannot be used
as evidence against her. Private respondent's petition for the disqualification of petitioner rested alone on these
two (2) brittle pieces of documentary evidence petitioner's Voter's Registration Record and her original
Certificate of Candidacy. Ranged against the evidence of the petitioner showing her ceaseless contacts with
Tacloban, private respondent's two (2) pieces of evidence are too insufficient to disqualify petitioner, more so, to
deny her the right to represent the people of the First District of Leyte who have overwhelmingly voted for her.
Fifth. Section 10, Article IX-C of the Constitution mandates that "bona fide candidates for any public office shall be free from any
form of harassment and discrimination."
35
A detached reading of the records of the case at bench will show that all forms of legal
and extra-legal obstacles have been thrown against petitioner to prevent her from running as the people's representative in the
First District of Leyte. In petitioner's Answer to the petition to disqualify her, she averred:
36

xxx xxx xxx
10. Petitioner's (herein private respondent Montejo) motive in filing the instant petition is devious. When
respondent (petitioner herein) announced that she was intending to register as a voter in Tacloban City
and run for Congress in the First District of Leyte, petitioner (Montejo) immediately opposed her intended
registration by writing a letter stating that "she is not a resident of said city but of Barangay Olot, Tolosa,
Leyte." (Annex "2" of respondent's affidavit, Annex "2"). After respondent (petitioner herein) had
registered as a voter in Tolosa following completion of her six-month actual residence therein, petitioner
(Montejo) filed a petition with the COMELEC to transfer the town of Tolosa from the First District to the
Second District and pursued such move up to the Supreme Court in G.R. No. 118702, his purpose being
to remove respondent (petitioner herein) as petitioner's (Montejo's) opponent in the congressional election
in the First District. He also filed a bill, along with other Leyte Congressmen, seeking to create another
legislative district, to remove the town of Tolosa out of the First District and to make it a part of the new
district, to achieve his purpose. However, such bill did not pass the Senate. Having, failed on such moves,
petitioner now filed the instant petition, for the same objective, as it is obvious that he is afraid to submit
himself along with respondent (petitioner herein) for the judgment and verdict of the electorate of the First
District of Leyte in an honest, orderly, peaceful, free and clean elections on May 8, 1995.
These allegations which private respondent did not challenge were not lost
to the perceptive eye of Commissioner Maambong who in his Dissenting Opinion,
37
held:
xxx xxx xxx
Prior to the registration date January 28, 1995 the petitioner (herein private respondent Montejo) wrote
the Election Officer of Tacloban City not to allow respondent (petitioner herein) to register thereat since
she is a resident of Tolosa and not Tacloban City. The purpose of this move of the petitioner (Montejo) is
not lost to (sic) the Commission. In UND No. 95-001 (In the matter of the Legislative Districts of the
Provinces of Leyte, Iloilo, and South Cotabato, Out of Which the New Provinces of Biliran, Guimaras and
Saranggani Were Respectively Created), . . . Hon. Cirilo Roy G. Montejo, Representative, First District of
Leyte, wanted the Municipality of Tolosa, in the First District of Leyte, transferred to the Second District of
Leyte. The Hon. Sergio A.F. Apostol, Representative of the Second District of Leyte, opposed the move of
the petitioner (Montejo). Under Comelec Resolution No. 2736 (December 29, 1994), the Commission on
Elections refused to make the proposed transfer. Petitioner (Montejo) filed "Motion for Reconsideration of
Resolution
No. 2736" which the Commission denied in a Resolution promulgated on February 1, 1995. Petitioner
(Montejo) filed a petition for certiorari before the Honorable Supreme Court (Cirilo Roy G. Montejo vs.
Commission on Elections, G.R. No. 118702) questioning the resolution of the Commission. Believing that
he could get a favorable ruling from the Supreme Court, petitioner (Montejo) tried to make sure that the
respondent (petitioner herein) will register as a voter in Tolosa so that she will be forced to run as
Representative not in the First but in the Second District.
It did not happen. On March 16, 1995, the Honorable Supreme Court unanimously promulgated a
"Decision," penned by Associate Justice Reynato S. Puno, the dispositive portion of which reads:
IN VIEW WHEREOF, Section 1 of Resolution No. 2736 insofar as it transferred the
municipality of Capoocan of the Second District and the municipality of Palompon of the
Fourth District to the Third District of the province of Leyte, is annulled and set aside. We
also deny the Petition praying for the transfer of the municipality of Tolosa from the First
District to the Second District of the province of Leyte. No costs.
Petitioner's (Montejo's) plan did not work. But the respondent (petitioner herein) was constrained to
register in the Municipality of Tolosa where her house is instead of Tacloban City, her domicile. In any
case, both Tacloban City and Tolosa are in the First Legislative District.
All these attempts to misuse our laws and legal processes are forms of rank harassments and invidious
discriminations against petitioner to deny her equal access to a public office. We cannot commit any hermeneutic
violence to the Constitution by torturing the meaning of equality, the end result of which will allow the harassment
and discrimination of petitioner who has lived a controversial life, a past of alternating light and shadow. There is
but one Constitution for all Filipinos. Petitioner cannot be adjudged by a "different" Constitution, and the worst
way to interpret the Constitution is to inject in its interpretation, bile and bitterness.
Sixth. In Gallego v. Vera,
38
we explained that the reason for this residence requirement is "to exclude a stranger or newcomer,
unacquainted, with the conditions and needs of a community and not identified with the latter, from an elective office to serve that
community . . . ." Petitioner's lifetime contacts with the First District of Leyte cannot be contested. Nobody can claim that she is
not acquainted with its problems because she is a stranger to the place. None can argue she cannot satisfy the intent of the
Constitution.
Seventh. In resolving election cases, a dominant consideration is the need to effectuate the will of the electorate. The election
results show that petitioner received Seventy Thousand Four Hundred Seventy-one (70,471) votes, while private respondent got
only Thirty-Six Thousand Eight Hundred Thirty-Three (36,833) votes. Petitioner is clearly the overwhelming choice of the
electorate of the First District of Leyte and this is not a sleight of statistics. We cannot frustrate this sovereign will on highly
arguable technical considerations. In case of doubt, we should lean towards a rule that will give life to the people's political
judgment.
A final point. The case at bench provides the Court with the rare opportunity to rectify the inequality of status between women
and men by rejecting the iniquitous common law precedents on the domicile of married women and by redefining domicile in
accord with our own culture, law, and Constitution. To rule that a married woman is eternally tethered to the domicile dictated by
her dead husband is to preserve the anachronistic and anomalous balance of advantage of a husband over his wife. We should
not allow the dead to govern the living even if the glories of yesteryears seduce us to shout long live the dead! The Family Code
buried this gender-based discrimination against married women and we should not excavate what has been entombed. More
importantly, the Constitution forbids it.
I vote to grant the petition.
Bellosillo and Melo, JJ., concur.
FRANCISCO, J ., concurring:
I concur with Mr. Justice Kapunan's ponencia finding petitioner qualified for the position of Representative of the First
Congressional District of Leyte. I wish, however, to express a few comments on the issue of petitioner's domicile.
Domicile has been defined as that place in which a person's habitation is fixed, without any present intention of removing
therefrom, and that place is properly the domicile of a person in which he has voluntarily fixed his abode, or habitation, not for a
mere special or temporary purpose, but with a present intention of making it his permanent home (28 C.J.S. 1). It denotes a
fixed permanent residence to which when absent for business, or pleasure, or for like reasons one intends to return, and
depends on facts and circumstances, in the sense that they disclose intent. (Ong Huan Tin v. Republic, 19 SCRA 966, 969)
Domicile is classified into domicile of origin and domicile of choice. The law attributes to every individual a domicile of origin,
which is the domicile of his parents, or of the head of his family, or of the person on whom he is legally dependent at the time of
his birth. While the domicile of origin is generally the place where one is born or reared, it maybe elsewhere (28 C.J.S. 5).
Domicile of choice, on the other hand, is the place which the person has elected and chosen for himself to displace his previous
domicile; it has for its true basis or foundation the intention of the person (28 C.J.S. 6). In order to hold that a person has
abandoned his domicile and acquired a new one called domicile of choice, the following requisites must concur, namely, (a)
residence or bodily presence in the new locality, (b) intention to remain there or animus manendi, and (c) an intention to abandon
the old domicile oranimus non revertendi (Romualdez v. RTC, Br. 7, Tacloban City, 226 SCRA 408, 415). A third classification is
domicile by operation of law which attributes to a person a domicile independent of his own intention or actual residence,
ordinarily resulting from legal domestic relations, as that of the wife arising from marriage, or the relation of a parent and a child
(28 C.J.S. 7).
In election law, when our Constitution speaks of residence for election purposes it means domicile (Co v. Electoral Tribunal of the
House of Representatives, 199 SCRA 692, 713; Nuval v. Guray, 52 Phil. 645, 651). To my mind, public respondent Commission
on Elections misapplied this concept, of domicile which led to petitioner's disqualification by ruling that petitioner failed to comply
with the constitutionally mandated one-year residence requirement. Apparently, public respondent Commission deemed as
conclusive petitioner's stay and registration as voter in many places as conduct disclosing her intent to abandon her established
domicile of origin in Tacloban, Leyte. In several decisions, though, the Court has laid down the rule that registration of a voter in a
place other than his place of origin is not sufficient to constitute abandonment or loss of such residence (Faypon v. Quirino, 96
Phil. 294, 300). Respondent Commission offered no cogent reason to depart from this rule except to surmise petitioner's intent of
abandoning her domicile of origin.
It has been suggested that petitioner's domicile of origin was supplanted by a new domicile due to her marriage, a domicile by
operation of law. The proposition is that upon the death of her husband in 1989 she retains her husband's domicile, i.e., Batac,
Ilocos Norte, until she makes an actual change thereof. I find this proposition quite untenable.
Tacloban, Leyte, is petitioner's domicile of origin which was involuntarily supplanted with another, i.e., Batac, Ilocos Norte, upon
her marriage in 1954 with then Congressman Marcos. By legal fiction she followed the domicile of her husband. In my view, the
reason for the law is for the spouses to fully and effectively perform their marital duties and obligations to one another.
1
The
question of domicile, however, is not affected by the fact that it was the legal or moral duty of the individual to reside in a given
place (28 C.J.S. 11). Thus, while the wife retains her marital domicile so long as the marriage subsists, she automatically loses
it upon the latter's termination, for the reason behind the law then ceases. Otherwise, petitioner, after her marriage was ended by
the death of her husband, would be placed in a quite absurd and unfair situation of having been freed from all wifely obligations
yet made to hold on to one which no longer serves any meaningful purpose.
It is my view therefore that petitioner reverted to her original domicile of Tacloban, Leyte upon her husband's death without even
signifying her intention to that effect. It is for the private respondent to prove, not for petitioner to disprove, that petitioner has
effectively abandoned Tacloban, Leyte for Batac, Ilocos Norte or for some other place/s. The clear rule is that it is the party
(herein private respondent) claiming that a person has abandoned or lost his residence of origin who must show and prove
preponderantly such abandonment or loss (Faypon v. Quirino, supra at 298; 28 C.J.S. 16), because the presumption is strongly
in favor of an original or former domicile, as against an acquired one (28 C.J.S. 16). Private respondent unfortunately failed to
discharge this burden as the record is devoid of convincing proof that petitioner has acquired whether voluntarily or involuntarily,
a new domicile to replace her domicile of origin.
The records, on the contrary, clearly show that petitioner has complied with the constitutional one-year residence requirement.
After her exile abroad, she returned to the Philippines in 1991 to reside in Olot, Tolosa, Leyte, but the Presidential Commission
on Good Government which sequestered her residential house and other properties forbade her necessitating her transient stay
in various places in Manila (Affidavit p.6, attached as Annex I of the Petition). In 1992, she ran for the position of president writing
in her certificate of candidacy her residence as San Juan, Metro Manila. After her loss therein, she went back to Tacloban City,
acquired her residence certificate
2
and resided with her brother in San Jose. She resided in San Jose, Tacloban City until August
of 1994 when she was allowed by the PCGG to move and reside in her sequestered residential house in Olot, Tolosa, Leyte
(Annex I, p. 6).
3
It was in the same month of August when she applied for the cancellation of her previous registration in San
Juan, Metro Manila in order to register anew as voter of Olot, Tolosa, Leyte, which she did on January 28, 1995. From this
sequence of events, I find it quite improper to use as the reckoning period of the one-year residence requirement the date when
she applied for the cancellation of her previous registration in San Juan, Metro Manila. The fact which private respondent never
bothered to disprove is that petitioner transferred her residence after the 1992 presidential election from San Juan, Metro Manila
to San Jose, Tacloban City, and resided therein until August of 1994. She later transferred to Olot, Tolosa, Leyte (Annex I, p. 7).
It appearing that both Tacloban City and Tolosa, Leyte are within the First Congressional District of Leyte, it indubitably stands
that she had more than a year of residence in the constituency she sought to be elected. Petitioner, therefore, has satisfactorily
complied with the one-year qualification required by the 1987 Constitution.
I vote to grant the petition.
ROMERO, J ., separate opinion:
Petitioner has appealed to this Court for relief after the COMELEC ruled that she was disqualified from running for
Representative of her District and that, in the event that she should, nevertheless, muster a majority vote, her proclamation
should be suspended. Not by a straightforward ruling did the COMELEC pronounce its decision as has been its unvarying
practice in the past, but by a startling succession of "reverse somersaults." Indicative of its shifting stance vis-a-vis petitioner's
certificate of candidacy were first, the action of its Second Division disqualifying her and canceling her original Certificate of
Candidacy by a vote of 2-1 on April 24, 1995; then the denial by the COMELEC en banc of her Motion for Reconsideration on
May 7, 1995, a day before the election; then because she persisted in running, its decision on
May 11, 1995 or three days after the election, allowing her proclamation in the event that the results of the canvass should show
that she obtained the highest number of votes (obviously noting that petitioner had won overwhelmingly over her opponent), but
almost simultaneously reversing itself by directing that even if she wins, her proclamation should nonetheless be suspended.
Crucial to the resolution of the disqualification issue presented by the case at bench is the interpretation to be given to the one-
year residency requirement imposed by the Constitution on aspirants for a Congressional seat.
1

Bearing in mind that the term "resident" has been held to be synonymous with "domicile" for election purposes, it is important to
determine whether petitioner's domicile was in the First District of Leyte and if so, whether she had resided there for at least a
period of one year. Undisputed is her domicile of origin, Tacloban, where her parents lived at the time of her birth. Depending on
what theory one adopts, the same may have been changed when she married Ferdinand E. Marcos, then domiciled in Batac, by
operation of law. Assuming it did, his death certainly released her from the obligation to live with him at the residence fixed by
him during his lifetime. What may confuse the layman at this point is the fact that the term "domicile" may refer to "domicile of
origin," "domicile of choice," or "domicile by operation of law," which subject we shall not belabor since it has been amply
discussed by theponente and in the other separate opinions.
In any case, what assumes relevance is the divergence of legal opinion as to the effect of the husband's death on the domicile of
the widow. Some scholars opine that the widow's domicile remains unchanged; that the deceased husband's wishes perforce still
bind the wife he has left behind. Given this interpretation, the widow cannot possibly go far enough to sever the domiciliary tie
imposed by her husband.
It is bad enough to interpret the law as empowering the husband unilaterally to fix the residence or domicile of the family, as laid
down in the Civil Code,
2
but to continue giving obeisance to his wishes even after the rationale underlying the mutual duty of the
spouses to live together has ceased, is to close one's eyes to the stark realities of the present.
At the other extreme is the position that the widow automatically reverts to her domicile of origin upon the demise of her husband.
Does the law so abhor a vacuum that the widow has to be endowed somehow with a domicile? To answer this question which is
far from rhetorical, one will have to keep in mind the basic principles of domicile. Everyone must have a domicile. Then one must
have only a single domicile for the same purpose at any given time. Once established, a domicile remains until a new one is
acquired, for no person lives who has no domicile, as defined by the law be is subject to.
At this juncture, we are confronted with an unexplored legal terrain in this jurisdiction, rendered more murky by the conflicting
opinions of foreign legal authorities. This being the state of things, it is imperative as it is opportune to illumine the darkness with
the beacon light of truth, as dictated by experience and the necessity of according petitioner her right to choose her domicile in
keeping with the enlightened global trend to recognize and protect the human rights of women, no less than men.
Admittedly, the notion of placing women at par with men, insofar as civil, political and social rights are concerned, is a relatively
recent phenomenon that took seed only in the middle of this century. It is a historical fact that for over three centuries, the
Philippines had been colonized by Spain, a conservative, Catholic country which transplanted to our shores the Old World
cultures, mores and attitudes and values. Through the imposition on our government of the Spanish Civil Code in 1889, the
people, both men and women, had no choice but to accept such concepts as the husband's being the head of the family and the
wife's subordination to his authority. In such role, his was the right to make vital decisions for the family. Many instances come to
mind, foremost being what is related to the issue before us, namely, that "the husband shall fix the residence of the
family."
3
Because he is made responsible for the support of the wife and the rest of the family,
4
he is also empowered to be the
administrator of the conjugal property, with a few exceptions
5
and may, therefore, dispose of the conjugal partnership property
for the purposes specified under the law;
6
whereas, as a general rule, the wife cannot bind the conjugal partnership without the
husband's consent.
7
As regards the property pertaining to the children under parental authority, the father is the legal
administrator and only in his absence may the mother assume his powers.
8
Demeaning to the wife's dignity are certain strictures
on her personal freedoms, practically relegating her to the position of minors and disabled persons. To illustrate a few: The wife
cannot, without the husband's consent, acquire any gratuitous title, except from her ascendants, descendants, parents-in-law,
and collateral relatives within the fourth degree.
9
With respect to her employment, the husband wields a veto power in the case
the wife exercises her profession or occupation or engages in business, provided his income is sufficient for the family, according
to its social standing and his opposition is founded on serious and valid grounds.
10
Most offensive, if not repulsive, to the liberal-
minded is the effective prohibition upon a widow to get married till after three hundred days following the death of her husband,
unless in the meantime, she has given birth to a child.
11
The mother who contracts a subsequent marriage loses the parental
authority over her children, unless the deceased husband, father of the latter, has expressly provided in his will that his widow
might marry again, and has ordered that in such case she should keep and exercise parental authority over their
children.
12
Again, an instance of a husband's overarching influence from beyond the grave.
All these indignities and disabilities suffered by Filipino wives for hundreds of years evoked no protest from them until the concept
of human rights and equality between and among nations and individuals found hospitable lodgment in the United Nations
Charter of which the Philippines was one of the original signatories. By then, the Spanish "conquistadores" had been overthrown
by the American forces at the turn of the century. The bedrock of the U.N. Charter was firmly anchored on this credo: "to reaffirm
faith in the fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women."
(Emphasis supplied)
It took over thirty years before these egalitarian doctrines bore fruit, owing largely to the burgeoning of the
feminist movement. What may be regarded as the international bill of rights for women was implanted in the
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) adopted by the U.N.
General Assembly which entered into force as an international treaty on September 3, 1981. In ratifying the
instrument, the Philippines bound itself to implement its liberating spirit and letter, for its Constitution, no less,
declared that "The Philippines. . . adopts the generally accepted principles of international law as part of the law
of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all
nations."
13
One such principle embodied in the CEDAW is granting to men and women "the same rights with
regard to the law relating to the movement of persons and the freedom to choose their residence and
domicile."
14
(Emphasis supplied).
CEDAW's pro-women orientation which was not lost on Filipino women was reflected in the 1987 Constitution of the Philippines
and later, in the Family Code,
15
both of which were speedily approved by the first lady President of the country, Corazon C.
Aquino. Notable for its emphasis on the human rights of all individuals and its bias for equality between the sexes are the
following provisions: "The State values the dignity of every human person and guarantees full respect for human rights"
16
and
"The State recognizes the role of women in nation-building, and shall ensure the fundamental equality before the law of women
and men."
17

A major accomplishment of women in their quest for equality with men and the elimination of discriminatory provisions of law was
the deletion in the Family Code of almost all of the unreasonable strictures on wives and the grant to them of personal rights
equal to that of their husbands. Specifically, the husband and wife are now giventhe right jointly to fix the family
domicile;
18
concomitant to the spouses' being jointly responsible for the support of the family is the right and duty of both spouses
to manage the household;
19
the administration and the enjoyment of the community property shall belong to both spouses
jointly;
20
the father and mother shall now jointly exercise legal guardianship over the property of their unemancipated common
child
21
and several others.
Aware of the hiatus and continuing gaps in the law, insofar as women's rights are concerned, Congress passed a law popularly
known as "Women in Development and Nation Building Act"
22
Among the rights given to married women evidencing their
capacity to act in contracts equal to that of men are:
(1) Women shall have the capacity to borrow and obtain loans and execute security and credit arrangements under the same
conditions as men;
(2) Women shall have equal access to all government and private sector programs granting agricultural credit, loans and non
material resources and shall enjoy equal treatment in agrarian reform and land resettlement programs;
(3) Women shall have equal rights to act as incorporators and enter into insurance contracts; and
(4) Married women shall have rights equal to those of married men in applying for passports, secure visas and other travel
documents, without need to secure the consent of their spouses.
As the world draws the curtain on the Fourth World Conference of Women in Beijing, let this Court now be the first to respond to
its clarion call that "Women's Rights are Human Rights" and that "All obstacles to women's full participation in decision-making at
all levels, including the family" should be removed. Having been herself a Member of the Philippine Delegation to the
International Women's Year Conference in Mexico in 1975, this writer is only too keenly aware of the unremitting struggle being
waged by women the world over, Filipino women not excluded, to be accepted as equals of men and to tear down the walls of
discrimination that hold them back from their proper places under the sun.
In light of the inexorable sweep of events, local and global, legislative, executive and judicial, according more rights to women
hitherto denied them and eliminating whatever pockets of discrimination still exist in their civil, political and social life, can it still
be insisted that widows are not at liberty to choose their domicile upon the death of their husbands but must retain the same,
regardless?
I submit that a widow, like the petitioner and others similarly situated, can no longer be bound by the domicile of the departed
husband, if at all she was before. Neither does she automatically revert to her domicile of origin, but exercising free will, she may
opt to reestablish her domicile of origin. In returning to Tacloban and subsequently, to Barangay Olot, Tolosa, both of which are
located in the First District of Leyte, petitioner amply demonstrated by overt acts, her election of a domicile of choice, in this case,
a reversion to her domicile of origin. Added together, the time when she set up her domicile in the two places sufficed to meet the
one-year requirement to run as Representative of the First District of Leyte.
In view of the foregoing expatiation, I vote to GRANT the petition.
VITUG, J ., separate opinion:
The case at bench deals with explicit Constitutional mandates.
The Constitution is not a pliable instrument. It is a bedrock in our legal system that sets up ideals and directions and render
steady our strides hence. It only looks back so as to ensure that mistakes in the past are not repeated. A compliant transience of
a constitution belittles its basic function and weakens its goals. A constitution may well become outdated by the realities of time.
When it does, it must be changed but while it remains, we owe it respect and allegiance. Anarchy, open or subtle, has never
been, nor must it ever be, the answer to perceived transitory needs, let alone societal attitudes, or the Constitution might lose its
very essence.
Constitutional provisions must be taken to be mandatory in character unless, either by express statement or by necessary
implication, a different intention is manifest (see Marcelino vs. Cruz, 121 SCRA 51).
The two provisions initially brought to focus are Section 6 and Section 17 of Article VI of the fundamental law. These provisions
read:
Sec. 6. No person shall be a Member of the House of Representatives unless he is a natural-born citizen
of the Philippines and, on the day of the election, is at least twenty-five years of age, able to read and
write, and, except the party-list representatives, a registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less than one year immediately preceding the day of the
election.
Sec. 17. The 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. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be Justices
of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of
the Senate or the House of Representatives, as the case may be, who shall be chosen on the basis of
proportional representation from the political parties and the parties or organizations registered under the
party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.
The Commission on Election (the "COMELEC") is constitutionally bound to enforce and administer "all laws and regulations
relative to the conduct of election . . ." (Art. IX, C, Sec. 2, Constitution) that, there being nothing said to the contrary, should
include its authority to pass upon the qualification and disqualification prescribed by law ofcandidates to an elective office.
Indeed, pre-proclamation controversies are expressly placed under the COMELEC's jurisdiction to hear and resolve (Art. IX, C,
Sec. 3, Constitution).
The matter before us specifically calls for the observance of the constitutional one-year residency requirement. The issue
(whether or not there is here such compliance), to my mind, is basically a question of fact or at least inextricably linked to such
determination. The findings and judgment of the COMELEC, in accordance with the long established rule and subject only to a
number of exceptions under the basic heading of "grave abuse of discretion," are not reviewable by this Court.
I do not find much need to do a complex exercise on what seems to me to be a plain matter. Generally, the term "residence" has
a broader connotation that may mean permanent (domicile), official (place where one's official duties may require him to stay)
or temporary (the place where he sojourns during a considerable length of time). For civil law purposes, i.e., as regards the
exercise of civil rights and the fulfillment of civil obligations, the domicile of a natural person is the place of his habitual residence
(see Article 50, Civil Code). In election cases, the controlling rule is that heretofore announced by this Court in Romualdez
vs. Regional Trial Court, Branch 7, Tacloban City (226 SCRA 408, 409); thus:
In election cases, the Court treats domicile and residence as synonymous terms, thus: "(t)he term
"residence" as used in the election law is synonymous with "domicile," which imports not only an intention
to reside in a fixed place but also personal presence in that place, coupled with conduct indicative of such
intention." "Domicile" denotes a fixed permanent residence to which when absent for business or
pleasure, or for like reasons, one intends to return. . . . . Residence thus acquired, however, may be lost
by adopting another choice of domicile. In order, in turn, to acquire a new domicile by choice, there must
concur (1) residence or bodily presence in the new locality, (2) an intention to remain there, and (3) an
intention to abandon the old domicile. In other words, there must basically be animus manendi coupled
with animus non revertendi. The purpose to remain in or at the domicile of choice must be for an indefinite
period of time; the change of residence must be voluntary; and the residence at the place chosen for the
new domicile must be actual.
Using the above tests, I am not convinced that we can charge the COMELEC with having committed grave abuse
of discretion in its assailed resolution.
The COMELEC's jurisdiction, in the case of congressional elections, ends when the jurisdiction of the Electoral Tribunal
concerned begins. It signifies that the protestee must have theretofore been duly proclaimed and has since become a "member"
of the Senate or the House of Representatives. The question can be asked on whether or not the proclamation of a candidate is
just a ministerial function of the Commission on Elections dictated solely on the number of votes cast in an election exercise. I
believe, it is not. A ministerial duty is an obligation the performance of which, being adequately defined, does not allow the use of
further judgment or discretion. The COMELEC, in its particular case, is tasked with the full responsibility of ascertaining all the
facts and conditions such as may be required by law before a proclamation is properly done.
The Court, on its part, should, in my view at least, refrain from any undue encroachment on the ultimate exercise of authority by
the Electoral Tribunals on matters which, by no less than a constitutional fiat, are explicitly within their exclusive domain. The
nagging question, if it were otherwise, would be the effect of the Court's peremptory pronouncement on the ability of the Electoral
Tribunal to later come up with its own judgment in a contest "relating to the election, returns and qualification" of its members.
Prescinding from all the foregoing, I should like to next touch base on the applicability to this case of Section 6 of Republic Act
No. 6646, in relation to Section 72 of Batas Pambansa Blg. 881, each providing thusly:
REPUBLIC ACT NO. 6646
xxx xxx xxx
Sec. 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.
BATAS PAMBANSA BLG. 881
xxx xxx xxx
Sec. 72. Effects of disqualification cases and priority. The Commission and the courts shall give priority
to cases of disqualification by reason of violation of this Act to the end that a final decision shall be
rendered not later than seven days before the election in which the disqualification is sought.
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. Nevertheless, 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, his violation of the provisions of the preceding sections shall not prevent his
proclamation and assumption to office.
I realize that in considering the significance of the law, it may be preferable to look for not so much the specific instances they
ostensibly would cover as the principle they clearly convey. Thus, I will not scoff at the argument that it should be sound to say
that votes cast in favor of the disqualified candidate, whenever ultimately declared as such, should not be counted in his or her
favor and must accordingly be considered to be stray votes. The argument, nevertheless, is far outweighed by the rationale of
the now prevailing doctrine first enunciated in the case of Topacio vs. Paredes (23 Phil. 238 [1912]) which, although later
abandoned in Ticzon vs. Comelec (103 SCRA 687 [1981]), and Santos vs. COMELEC (137 SCRA 740 [1985]), was restored,
along with the interim case of Geronimo vs. Ramos (136 SCRA 435 [1985]), by the Labo (176 SCRA 1 (1989]), Abella (201
SCRA 253 [1991]), Labo (211 SCRA 297 [1992]) and, most recently, Benito (235 SCRA 436 [1994]) rulings. Benito
vs.Comelec was a unanimous decision penned by Justice Kapunan and concurred in by Chief Justice Narvasa, Justices
Feliciano, Padilla, Bidin, Regalado, Davide, Romero, Melo, Quiason, Puno, Vitug and Mendoza (Justices Cruz and Bellosillo
were on official leave). For easy reference, let me quote from the first Labo decision:
Finally, there is the question of whether or not the private respondent, who filed the quo warrantopetition,
can replace the petitioner as mayor. He cannot. The simple reason is that as he obtained only the second
highest number of votes in the election, he was obviously not the choice of the people of Baguio City.
The latest ruling of the Court on this issue is Santos v. Commission on Elections, (137 SCRA 740)
decided in 1985. In that case, the candidate who placed second was proclaimed elected after the votes
for his winning rival, who was disqualified as a turncoat and considered a non-candidate, were all
disregard as stray. In effect, the second placer won by default. That decision was supported by eight
members of the Court then, (Cuevas, J., ponente, with Makasiar, Concepcion, Jr., Escolin, Relova, De la
Fuente, Alampay and Aquino, JJ., concurring.) with three dissenting (Teehankee, Acting C.J., Abad
Santos and Melencio-Herrera, JJ.) and another two reserving their vote. (Plana and Gutierrez, Jr., JJ.)
One was on official leave. (Fernando, C.J.)
Re-examining that decision, the Court finds, and so holds, that it should be reversed in favor of the earlier
case of Geronimo v. Ramos, (136 SCRA 435) which represents the more logical and democratic rule.
That case, which reiterated the doctrine first announced in 1912 in Topacio v.Paredes, (23 Phil. 238) was
supported by ten members of the Court, (Gutierrez, Jr., ponente, with Teehankee, Abad Santos,
Melencio-Herrera, Plana, Escolin, Relova, De la Fuente, Cuevas and Alampay, JJ., concurring) without
any dissent, although one reserved his vote, (Makasiar, J.) another took no part, (Aquino, J.) and two
others were on leave. (Fernando, C.J. and Concepcion, Jr., J.) There the Court held:
. . . it would be extremely repugnant to the basic concept of the constitutionally guaranteed
right to suffrage if a candidate who has not acquired the majority or plurality of votes is
proclaimed a winner and imposed as the representative of a constituency, the majority of
which have positively declared through their ballots that they do not choose him.
Sound policy dictates that public elective offices are filled by those who have received the
highest number of votes cast in the election for that office, and it is a fundamental idea in
all republican forms of government 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. (20 Corpus Juris 2nd, S 243, p. 676.)
The fact that the candidate who obtained the highest number of votes is later declared to be disqualified
or not eligible for the office to which he was elected does not necessarily entitle the candidate who
obtained the second highest number of votes to be declared the winner of the elective office. The votes
cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive,
qualified, or eligible, they should not be treated as stray, void or meaningless. (at pp. 20-21)
Considering all the foregoing, I am constrained to vote for the dismissal of the petition.
MENDOZA, J ., separate opinion:
In my view the issue in this case is whether the Commission on Elections has the power to disqualify candidates on the ground
that they lack eligibility for the office to which they seek to be elected. I think that it has none and that the qualifications of
candidates may be questioned only in the event they are elected, by filing a petition for quo warranto or an election protest in the
appropriate forum, not necessarily in the COMELEC but, as in this case, in the House of Representatives Electoral Tribunal. That
the parties in this case took part in the proceedings in the COMELEC is of no moment. Such proceedings were unauthorized and
were not rendered valid by their agreement to submit their dispute to that body.
The various election laws will be searched in vain for authorized proceedings for determining a candidate's qualifications for an
office before his election. There are none in the Omnibus Election Code (B.P. Blg. 881), in the Electoral Reforms Law of 1987
(R.A. No. 6646), or in the law providing for synchronized elections (R.A. No. 7166). There are, in other words, no provisions for
pre-proclamation contests but only election protests or quo warrantoproceedings against winning candidates.
To be sure, there are provisions denominated for "disqualification," but they are not concerned with a declaration of the
ineligibility of a candidate. These provisions are concerned with the incapacity (due to insanity, incompetence or conviction of an
offense) of a person either to be a candidate or to continue as a candidate for public office. There is also a provision for the
denial or cancellation of certificates of candidacy, but it applies only to cases involving false representations as to certain matters
required by law to be stated in the certificates.
These provisions are found in the following parts of the Omnibus Election Code:
12. Disqualifications. Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any
offense for which he has been sentenced to a penalty of more than eighteen months or for a crime
involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by
competent authority that said insanity or incompetence had been removed or after the expiration of a
period of five years from his service of sentence, unless within the same period he again becomes
disqualified. (Emphasis added)
68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by
final decision of a competent court guilty of, or found by the Commission of having (a) given money or
other material consideration to influence, induce or corrupt the voters or public officials performing
electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85,
86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of
or an immigrant to a foreign country shall not be qualified to run for any elective office under this Code,
unless said person has waived his status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the election laws. (Emphasis added)
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. (Emphasis added)
the Electoral Reforms Law of 1987 (R.A. No. 6646):
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 for 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).
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.
and the Local Government Code of 1991 (R.A. No. 7160):
40. Disqualifications. The following persons are disqualified from running for any elective local
position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of on administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and
continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
The petition filed by private respondent Cirilo Roy Montejo in the COMELEC, while entitled "For Cancellation and
Disqualification," contained no allegation that private respondent Imelda Romualdez-Marcos made material representations in
her certificate of candidacy which were false, it sought her disqualification on the ground that "on the basis of her Voter
Registration Record and Certificate of Candidacy, [she] is disqualified from running for the position of Representative,
considering that on election day, May 8, 1995, [she] would have resided less than ten (10) months in the district where she is
seeking to be elected." For its part, the COMELEC's Second Division, in its resolution of April 24, 1995, cancelled her certificate
of candidacy and corrected certificate of candidacy on the basis of its finding that petitioner is "not qualified to run for the position
of Member of the House of Representatives for the First Legislative District of Leyte" and not because of any finding that she had
made false representations as to material matters in her certificate of candidacy.
Montejo's petition before the COMELEC was therefore not a petition for cancellation of certificate of candidacy under 78 of the
Omnibus Election Code, but essentially a petition to declare private respondent ineligible. It is important to note this, because, as
will presently be explained, proceedings under 78 have for their purpose to disqualify a person from being a candidate,
whereas quo warranto proceedings have for their purpose to disqualify a person from holding public office. Jurisdiction over quo
warranto proceedings involving members of the House of Representatives is vested in the Electoral Tribunal of that body.
Indeed, in the only cases in which this Court dealt with petitions for the cancellation of certificates of candidacy, the allegations
were that the respondent candidates had made false representations in their certificates of candidacy with regard to
their citizenship,
1
age,
2
or residence.
3
But in the generality of cases in which this Court passed upon the qualifications of
respondents for office, this Court did so in the context of election protests
4
or quo warranto proceedings
5
filed after the
proclamation of the respondents or protestees as winners.
Three reasons may be cited to explain the absence of an authorized proceeding for determining before electionthe qualifications
of a candidate.
First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his eligibility for the
office. In contrast, whether an individual should be disqualified as a candidate for acts constituting election offenses (e.g., vote
buying, over spending, commission of prohibited acts) is a prejudicial question which should be determined lest he wins because
of the very acts for which his disqualification is being sought. That is why it is provided that if the grounds for disqualification are
established, a candidate will not be voted for; if he has been voted for, the votes in his favor will not be counted; and if for some
reason he has been voted for and he has won, either he will not be proclaimed or his proclamation will be set aside.
6

Second is the fact that the determination of a candidate's eligibility, e.g., his citizenship or, as in this case, his domicile, may take
a long time to make, extending beyond the beginning of the term of the office. This is amply demonstrated in the companion case
(G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of Aquino's residence was still pending in the
COMELEC even after the elections of May 8, 1995. This is contrary to the summary character of proceedings relating to
certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a ministerial duty of the COMELEC
and its officers.
7
The law is satisfied if candidates state in their certificates of candidacy that they are eligible for the position
which they seek to fill, leaving the determination of their qualifications to be made after the election and only in the event they are
elected. Only in cases involving charges of false representations made in certificates of candidacy is the COMELEC given
jurisdiction.
Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice President, Senators
and members of the House of Representatives. (R.A. No. 7166, 15) The purpose is to preserve the prerogatives of the House
of Representatives Electoral Tribunal and the other Tribunals as "sole judges" under the Constitution of
the election, returns and qualifications of members of Congress or of the President and Vice President, as the case may be.
By providing in 253 for the remedy of quo warranto for determining an elected official's qualifications after the results of
elections are proclaimed, while being conspicuously silent about a pre-proclamation remedy based on the same ground, the
Omnibus Election Code, or OEC, by its silence underscores the policy of not authorizing any inquiry into the qualifications of
candidates unless they have been elected.
Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC amended its
rules on February 15, 1993 so as to provide in Rule 25, 1 the following:
Grounds for disqualification. Any candidate who does not possess all the qualifications of a candidate
as provided for by the Constitution or by existing law or who commits any act declared by law to be
grounds for disqualification may be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such an act is
equivalent to the creation of a cause of action which is a substantive matter which the COMELEC, in the exercise of its
rulemaking power under Art. IX, A, 6 of the Constitution, cannot do. It is noteworthy that the Constitution withholds from the
COMELEC even the power to decide cases involving the right to vote, which essentially involves an inquiry
into qualifications based on age, residence and citizenship of voters. (Art. IX, C, 2(3))
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is contrary to the
evident intention of the law. For not only in their grounds but also in their consequences are proceedings for "disqualification"
different from those for a declaration of "ineligibility." "Disqualification" proceedings, as already stated, are based on grounds
specified in 12 and 68 of the Omnibus Election Code and in 40 of the Local Government Code and are for the purpose of
barring an individual from becoming a candidate or from continuing as a candidate for public office. In a word, their purpose is
to eliminate a candidate from the race either from the start or during its progress. "Ineligibility," on the other hand, refers to the
lack of the qualifications prescribed in the Constitution or the statutes for holding public office and the purpose of the proceedings
for declaration of ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public office does not imply that he is not disqualified from
becoming a candidate or continuing as a candidate for a public office and vice versa. We have this sort of dichotomy in our
Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in 2 of the law does not imply that he does
not suffer from any of disqualifications provided in 4.
Indeed, provisions for disqualifications on the ground that the candidate is guilty of prohibited election practices or offenses, like
other pre-proclamation remedies, are aimed at the detestable practice of "grabbing the proclamation and prolonging the election
protest,"
8
through the use of "manufactured" election returns or resort to other trickery for the purpose of altering the results of
the election. This rationale does not apply to cases for determining a candidate's qualifications for office before the election. To
the contrary, it is the candidate against whom a proceeding for disqualification is brought who could be prejudiced because he
could be prevented from assuming office even though in end he prevails.
To summarize, the declaration of ineligibility of a candidate may only be sought in an election protest or action forquo
warranto filed pursuant to 253 of the Omnibus Election Code within 10 days after his proclamation. With respect to elective
local officials (e.g., Governor, Vice Governor, members of the Sangguniang Panlalawigan, etc.) such petition must be filed either
with the COMELEC, the Regional Trial Courts, or Municipal Trial Courts, as provided in Art. IX, C, 2(2) of the Constitution. In
the case of the President and Vice President, the petition must be filed with the Presidential Electoral Tribunal (Art. VII, 4, last
paragraph), and in the case of the Senators, with the Senate Electoral Tribunal, and in the case of Congressmen, with the House
of Representatives Electoral Tribunal. (Art. VI, 17) There is greater reason for not allowing before the election the filing of
disqualification proceedings based on alleged ineligibility in the case of candidates for President, Vice President, Senators and
members of the House of Representatives, because of the same policy prohibiting the filing of pre-proclamation cases against
such candidates.
For these reasons, I am of the opinion that the COMELEC had no jurisdiction over SPA No. 95-009; that its proceedings in that
case, including its questioned orders, are void; and that the eligibility of petitioner Imelda Romualdez-Marcos for the office of
Representative of the First District of Leyte may only be inquired into by the HRET.
Accordingly, I vote to grant the petition and to annul the proceedings of the Commission on Elections in SPA No. 95-009,
including its questioned orders doted April 24, 1995, May 7, 1995, May 11, 1995 and May 25, 1995, declaring petitioner Imelda
Romualdez-Marcos ineligible and ordering her proclamation as Representative of the First District of Leyte suspended. To the
extent that Rule 25 of the COMELEC Rules of Procedure authorizes proceedings for the disqualification of candidates on the
ground of ineligibility for the office, it should considered void.
The provincial board of canvassers should now proceed with the proclamation of petitioner.
Narvasa, C.J., concurs.
PADILLA, J ., dissenting:
I regret that I cannot join the majority opinion as expressed in the well-written ponencia of Mr. Justice Kapunan.
As in any controversy arising out of a Constitutional provision, the inquiry must begin and end with the provision itself. The
controversy should not be blurred by what, to me, are academic disquisitions. In this particular controversy, the Constitutional
provision on point states that "no person shall be a member of the House of Representatives unless he is a natural-born
citizen of the Philippines, and on the day of the election, is at least twenty-five (25) years of age, able to read and write, and
except the party list representatives, a registered voter in the district in which he shall be elected, and a resident thereof for a
period of not less than one year immediately preceding the day of the election." (Article VI, section 6)
It has been argued that for purposes of our election laws, the term residence has been understood as synonymous with domicile.
This argument has been validated by no less than the Court in numerous cases
1
where significantly the factual
circumstances clearly and convincingly proved that a person does not effectively lose his domicile of origin if the intention to
reside therein is manifest with his personal presence in the place,coupled with conduct indicative of such intention.
With this basic thesis in mind, it would not be difficult to conceive of different modalities within which the phrase "a resident
thereof (meaning, the legislative district) for a period of not less than one year" would fit.
The first instance is where a person's residence and domicile coincide in which case a person only has to prove that he has been
domiciled in a permanent location for not less than a year before the election.
A second situation is where a person maintains a residence apart from his domicile in which case he would have the luxury of
district shopping, provided of course, he satisfies the one-year residence period in the district as the minimum period for eligibility
to the position of congressional representative for the district.
In either case, one would not be constitutionally disqualified for abandoning his residence in order to return to his domicile of
origin, or better still, domicile of choice; neither would one be disqualified for abandoning altogether his domicile in favor of his
residence in the district where he desires to be a candidate.
The most extreme circumstance would be a situation wherein a person maintains several residences in different districts. Since
his domicile of origin continues as an option as long as there is no effective abandonment (animus non revertendi), he can
practically choose the district most advantageous for him.
All these theoretical scenarios, however, are tempered by the unambiguous limitation that "for a period of not less than one year
immediately preceding the day of the election", he must be a resident in the district where he desires to be elected.
To my mind, the one year residence period is crucial regardless of whether or not the term "residence" is to be synonymous with
"domicile." In other words, the candidate's intent and actual presence in one district must in allsituations satisfy the length of time
prescribed by the fundamental law. And this, because of a definite Constitutional purpose. He must be familiar with the
environment and problems of a district he intends to represent in Congress and the one-year residence in said district would be
the minimum period to acquire such familiarity, if not versatility.
In the case of petitioner Imelda R. Marcos, the operative facts are distinctly set out in the now assailed decision of the Comelec
2nd Division dated 24 April 1995 (as affirmed by the Comelec en banc)
In or about 1938 when respondent was a little over 8 years old, she established her domicile in Tacloban,
Leyte (Tacloban City). She studied in the Holy Infant Academy in Tacloban from 1938 to 1948 when she
graduated from high school. She pursued her college studies in St. Paul's College, now Divine Word
University of Tacloban, where she earned her degree in Education. Thereafter, she taught in the Leyte
Chinese High School, still in Tacloban City. In 1952 she went to Manila to work with her cousin, the late
Speaker Daniel Z. Romualdez in his office in the House of Representatives. In 1954, she married ex-
president Ferdinand Marcos when he was still a congressman of Ilocos Norte. She lived with him in
Batac, Ilocos Norte and registered there as a voter. When her husband was elected Senator of the
Republic in 1959, she and her husband lived together in San Juan, Rizal where she registered as a voter.
In 1965 when her husband was elected President of the Republic of the Philippines, she lived with him in
Malacanang Palace and registered as a voter in San Miguel, Manila.
During the Marcos presidency, respondent served as a Member of the Batasang Pambansa, Minister of
Human Settlements and Governor of Metro Manila. She claimed that in February 1986, she and her
family were abducted and kidnapped to Honolulu, Hawaii. In November 1991, she came home to Manila.
In 1992 respondent ran for election as President of the Philippines and filed her Certificate of Candidacy
wherein she indicated that she is a resident and registered voter of San Juan, Metro Manila. On August
24, 1994, respondent filed a letter with the election officer of San Juan, Metro Manila, requesting for
cancellation of her registration in the Permanent List of Voters in Precinct No. 157 of San Juan, Metro
Manila, in order that she may be re-registered or transferred to Brgy. Olot, Tolosa, Leyte. (Annex 2-B,
Answer). On August 31, 1994, respondent filed her Sworn Application for Cancellation of Voter's Previous
Registration (Annex 2-C, Answer) stating that she is a duly registered voter in 157-A, Brgy. Maytunas,
San Juan, Metro that she intends to register at Brgy. Olot, Tolosa, Leyte.
On January 28, 1995 respondent registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte. She
filed with the Board of Election Inspectors CE Form No. 1, Voter Registration Record No. 94-3349772,
wherein she alleged that she has resided in the municipality of Tolosa for a period of 6 months (Annex A,
Petition).
On March 8, 1995, respondent filed with the Office of the Provincial Election Supervisor, Leyte, a
Certificate of Candidacy for the position of Representative of the First District of Leyte wherein she also
alleged that she has been a resident in the constituency where she seeks to be elected for a period of 7
months. The pertinent entries therein are as follows:
7. PROFESSION OR OCCUPATION: House-wife/ Teacher/ Social Worker
8. RESIDENCE (complete address): Brgy. Olot, Tolosa, Leyte
Post Office Address for election purposes: Brgy. Olot, Tolosa, Leyte
9. RESIDENCE IN THE CONSTITUENCY WHEREIN I SEEK TO BE
ELECTED IMMEDIATELY PRECEDING ELECTION: ________
Years Seven Months
10. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A
FOREIGN COUNTRY.
THAT I AM ELIGIBLE for said office; That I will support and defend the Constitution of the Republic of the
Philippines and will maintain true faith and allegiance thereto; That I will obey the laws, legal orders and
decrees promulgated by the duly-constituted authorities; That the obligation imposed by my oath is
assumed voluntarily, without mental reservation or purpose of evasion; and That the facts stated herein
are true to the best of my knowledge.
(Sgd.) Imelda Romualdez-Marcos
(Signature of Candidate)
2

Petitioner's aforestated certificate of candidacy filed on 8 March 1995 contains the decisive component or seed of her
disqualification. It is contained in her answer under oath of "seven months" to the query of "residence in the constituency wherein
I seek to be elected immediately preceding the election."
It follows from all the above that the Comelec committed no grave abuse of discretion in holding that petitioner is disqualified from
the position of representative for the 1st congressional district of Leyte in the elections of 8 May 1995, for failure to meet the "not
less than one-year residence in the constituency (1st district, Leyte) immediately preceding the day of election (8 May 1995)."
Having arrived at petitioner's disqualification to be a representative of the first district of Leyte, the next important issue to resolve
is whether or not the Comelec can order the Board of Canvassers to determine and proclaim the winner out of the remaining
qualified candidates for representative in said district.
I am not unaware of the pronouncement made by this Court in the case of Labo vs. Comelec, G.R. 86564, August 1, 1989, 176
SCRA 1 which gave the rationale as laid down in the early 1912 case of Topacio vs. Paredes, 23 Phil. 238 that:
. . . . Sound policy dictates that public elective offices are filled by those who have received the highest
number of votes cast in the election for that office, and it is a fundamental idea in all republican forms of
government 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. (20 Corpus Juris 2nd, S 243, p. 676)
The fact that the candidate who obtained the highest number of votes is later declared to be disqualified
or not eligible for the office to which he was elected does not necessarily entitle the candidate who
obtained the second highest number of votes to be declared the winner of the elective office. The votes
cast for a dead, disqualified, or non-eligible person may not be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in the sincere belief that the candidate was alive,
qualified, or eligible, they should not be treated as stray, void or meaningless.
Under Sec. 6 RA 6646, (An Act Introducing Additional Reforms in the Electoral System and for other purposes) (84 O.G. 905, 22
February 1988) it is provided that:
. . . Any candidate who has been declared by final judgment to be disqualified shall not be voted for,
and the votes cast for him shall not be counted. 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.
There is no need to indulge in legal hermeneutics to sense the plain and unambiguous meaning of the provision quoted above.
As the law now stands, the legislative policy does not limit its concern with the effect of a final judgement of disqualification
only before the election, but even during or after the election. The law is clear that in all situations, the votes cast for a
disqualified candidate SHALL NOT BE COUNTED. The law has also validated the jurisdiction of the Court or Commission on
Election to continue hearing the petition for disqualification in case a candidate is voted for and receives the highest number of
votes, if for any reason, he is not declared by final judgment before an election to be disqualified.
Since the present case is an after election scenario, the power to suspend proclamation (when evidence of his guilt is strong) is
also explicit under the law. What happens then when after the elections are over, one is declared disqualified? Then, votes cast
for him "shall not be counted" and in legal contemplation, he no longer received the highest number of votes.
It stands to reason that Section 6 of RA 6646 does not make the second placer the winner simply because a "winning candidate
is disqualified," but that the law considers him as the candidate who had obtained the highest number of votes as a result of the
votes cast for the disqualified candidate not being counted or considered.
As this law clearly reflects the legislative policy on the matter, then there is no reason why this Court should not re-examine and
consequently abandon the doctrine in the Jun Labo case. It has been stated that "the qualifications prescribed for elective office
cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of
ineligibility" most especially when it is mandated by no less than the Constitution.
ACCORDINGLY, I vote to DISMISS the petition and to order the Provincial Board of Canvassers of Leyte to proclaim the
candidate receiving the highest number of votes, from among the qualified candidates, as the duly elected representative of the
1st district of Leyte.
Hermosisima, Jr. J., dissent.
REGALADO, J ., dissenting:
While I agree with same of the factual bases of the majority opinion, I cannot arrive conjointly at the same conclusion drawn
therefrom Hence, this dissent which assuredly is not formulated "on the basis of the personality of a petitioner in a case."
I go along with the majority in their narration of antecedent facts, insofar as the same are pertinent to this case, and which I have
simplified as follows:
1. Petitioner, although born in Manila, resided during her childhood in the present Tacloban City, she
being a legitimate daughter of parents who appear to have taken up permanent residence therein. She
also went to school there and, for a time, taught in one of the schools in that city.
2. When she married then Rep. Ferdinand E. Marcos who was then domiciled in Batac, Ilocos Norte, by
operation of law she acquired a new domicile in that place in 1954.
3. In the successive years and during the events that happened thereafter, her husband having been
elected as a Senator and then as President, she lived with him and their family in San Juan, Rizal and
then in Malacanang Palace in San Miguel, Manila.
4. Over those years, she registered as a voter and actually voted in Batac, Ilocos Norte, then in San Juan,
Rizal, and also in San Miguel, Manila, all these merely in the exercise of the right of suffrage.
5. It does not appear that her husband, even after he had assumed those lofty positions successively,
ever abandoned his domicile of origin in Batac, Ilocos Norte where he maintained his residence and
invariably voted in all elections.
6. After the ouster of her husband from the presidency in 1986 and the sojourn of the Marcos family in
Honolulu, Hawaii, U.S.A., she eventually returned to the Philippines in 1991 and resided in different
places which she claimed to have been merely temporary residences.
7. In 1992, petitioner ran for election as President of the Philippines and in her certificate of candidacy she
indicated that she was then a registered voter and resident of San Juan, Metro Manila.
8. On August 24, 1994, she filed a letter for the cancellation of her registration in the Permanent List of
Voters in Precinct No. 157 of San Juan, Metro Manila in order that she may "be re-registered or
transferred to Brgy. Olot, Tolosa, Leyte." On August 31, 1994, she followed this up with her Sworn
Application for Cancellation of Voter's Previous Registration wherein she stated that she was a registered
voter in Precinct No. 157-A, Brgy. Maytunas, San Juan, Metro Manila and that she intended to register in
Brgy. Olot, Tolosa, Leyte.
9. On January 28, 1995, petitioner registered as a voter at Precinct No. 18-A of Olot, Tolosa, Leyte, for
which purpose she filed with the therein Board of Election Inspectors a voter's registration record form
alleging that she had resided in that municipality for six months.
10. On March 8, 1995, petitioner filed her certificate of candidacy for the position of Representative of the
First District of Leyte wherein she alleged that she had been a resident for "Seven Months" of the
constituency where she sought to be elected.
11. On March 29, 1995, she filed an "Amended/Corrected Certificate of Candidacy" wherein her answer in
the original certificate of candidacy to item "8. RESIDENCE IN THE CONSTITUENCY WHERE I SEEK,
TO BE ELECTED IMMEDIATELY PRECEDING THE ELECTION:" was changed or replaced with a new
entry reading "SINCE CHILDHOOD."
The sole issue for resolution is whether, for purposes of her candidacy, petitioner had complied with the residency requirement of
one year as mandated by no less than Section 6, Article VI of the 1987 Constitution.
I do not intend to impose upon the time of my colleagues with a dissertation on the difference between residence and domicile.
We have had enough of that and I understand that for purposes of political law and, for that matter of international law, residence
is understood to be synonymous with domicile. That is so understood in our jurisprudence and in American Law, in
contradistinction to the concept of residence for purposes of civil, commercial and procedural laws whenever an issue thereon is
relevant or controlling.
Consequently, since in the present case the question of petitioner's residence is integrated in and inseparable from her domicile,
I am addressing the issue from the standpoint of the concept of the latter term, specifically its permutations into the domicile of
origin, domicile of choice and domicile by operation of law, as understood in American law from which for this case we have
taken our jurisprudential bearings.
My readings inform me that the domicile of the parents at the time of birth, or what is termed the "domicile of origin," constitutes
the domicile of an infant until abandoned, or until the acquisition of a new domicile in a different place.
1
In the instant case, we
may grant that petitioner's domicile of origin,
2
at least as of 1938, was what is now Tacloban City.
Now, as I have observed earlier, domicile is said to be of three kinds, that is, domicile by birth, domicile by choice, and domicile
by operation of law. The first is the common case of the place of birth or domicilium originis, the second is that which is voluntarily
acquired by a party or domicilium propio motu; the last which is consequential, as that of a wife arising from marriage,
3
is
sometimes called domicilium necesarium. There is no debate that the domicile of origin can be lost or replaced by a domicile of
choice or a domicile by operation of law subsequently acquired by the party.
When petitioner contracted marriage in 1954 with then Rep. Marcos, by operation of law, not only international or American but of
our own enactment,
4
she acquired her husband's domicile of origin in Batac, Ilocos Norte and correspondingly lost her own
domicile of origin in Tacloban City.
Her subsequent changes of residence to San Juan, Rizal, then to San Miguel, Manila, thereafter to Honolulu, Hawaii, and
back to now San Juan, Metro Manila do not appear to have resulted in her thereby acquiring new domiciles of choice. In fact,
it appears that her having resided in those places was by reason of the fortunes or misfortunes of her husband and his
peregrinations in the assumption of new official positions or the loss of them. Her residence in Honolulu and, of course, those
after her return to the Philippines were, as she claimed, against her will or only for transient purposes which could not have
invested them with the status of domiciles of choice.
5

After petitioner's return to the Philippines in 1991 and up to the present imbroglio over her requisite residency in Tacloban City or
Olot, Tolosa, Leyte, there is no showing that she ever attempted to acquire any other domicile of choice which could have
resulted in the abandonment of her legal domicile in Batac, Ilocos Norte. On that score, we note the majority's own
submission
6
that, to successfully effect a change of domicile, one must demonstrate (a) an actual removal or an actual change of
domicile, (b) a bona fide intention of abandoning the former place of residence and establishing a new one, and (c) acts which
correspond with the purpose.
We consequently have to also note that these requirements for the acquisition of a domicile of choice apply whether what is
sought to be changed or substituted is a domicile of origin (domicilium originis) or a domicile by operation of law (domicilium
necesarium). Since petitioner had lost her domicilium originis which had been replaced by her domicilium necesarium, it is
therefore her continuing domicile in Batac, Ilocos Norte which, if at all, can be the object of legal change under the contingencies
of the case at bar.
To get out of this quandary, the majority decision echoes the dissenting opinion of Commissioner Regalado E. Maambong in
SPA 95-009 of the Commission on Elections,
7
and advances this novel proposition.
It may be said that petitioner lost her domicile of origin by operation of law as a result of her marriage to
the late President Ferdinand E. Marcos in 1952 (sic, 1954). By operation of law (domicilium necesarium),
her legal domicile at the time of her marriage became Batac, Ilocos Norte although there were no
indications of an intention on her part to abandon her domicile of origin. Because of her husband's
subsequent death and through the operation of the provisions of the New Family Code already in force at
the time, however, her legal domicile automatically reverted to her domicile of origin. . . . (Emphasis
supplied).
Firstly, I am puzzled why although it is conceded that petitioner had acquired a domicilium necesarium in Batac, Ilocos Norte, the
majority insists on making a qualification that she did not intend to abandon her domicile of origin. I find this bewildering since, in
this situation, it is the law that declares where petitioner's domicile is at any given time, and not her self-serving or putative intent
to hold on to her former domicile. Otherwise, contrary to their own admission that one cannot have more than one domicile at a
time,
8
the majority would be suggesting that petitioner retained Tacloban City as (for lack of a term in law since it does not exist
therein) the equivalent of what is fancied as a reserved, dormant, potential, or residual domicile.
Secondly, domicile once lost in accordance with law can only be recovered likewise in accordance with law. However, we are
here being titillated with the possibility of an automatic reversion to or reacquisition of a domicile of origin after the termination of
the cause for its loss by operation of law. The majority agrees that since petitioner lost her domicile of origin by her marriage, the
termination of the marriage also terminates that effect thereof. I am impressed by the ingeniousness of this theory which proves
that, indeed, necessity is the mother of inventions. Regretfully, I find some difficulty in accepting either the logic or the validity of
this argument.
If a party loses his domicile of origin by obtaining a new domicile of choice, he thereby voluntarily abandons the former in favor of
the latter. If, thereafter, he abandons that chosen domicile, he does not per se recover his original domicile unless, by
subsequent acts legally indicative thereof, he evinces his intent and desire to establish the same as his new domicile, which is
precisely what petitioner belatedly and, evidently just for purposes of her candidacy, unsuccessfully tried to do.
One's subsequent abandonment of his domicile of choice cannot automatically restore his domicile of origin, not only because
there is no legal authority therefor but because it would be absurd Pursued to its logical consequence, that theory of ipso
jure reversion would rule out the fact that said party could already very well have obtained another domicile, either of choice or by
operation of law, other than his domicile of origin. Significantly and obviously for this reason, the Family Code, which the majority
inexplicably invokes, advisedly does not regulate this contingency since it would impinge on one's freedom of choice.
Now, in the instant case, petitioner not only voluntarily abandoned her domicile of choice (unless we assume that she entered
into the marital state against her will) but, on top of that, such abandonment was further affirmed through her acquisition of a new
domicile by operation of law. In fact, this is even a case of both voluntary andlegal abandonment of a domicile of origin. With
much more reason, therefore, should we reject the proposition that with the termination of her marriage in 1989, petitioner had
supposedly per se and ipso facto reacquired her domicile of origin which she lost in 1954. Otherwise, this would be tantamount to
saying that during the period of marital coverture, she was simultaneously in possession and enjoyment of a domicile of origin
which was only in a state of suspended animation.
Thus, the American rule is likewise to the effect that while after the husband's death the wife has the right to elect her own
domicile,
9
she nevertheless retains the last domicile of her deceased husband until she makes an actual change.
10
In the
absence of affirmative evidence, to the contrary, the presumption is that a wife's domicile or legal residence follows that of her
husband and will continue after his death.
11

I cannot appreciate the premises advanced in support of the majority's theory based on Articles 68 and 69 of the Family Code. All
that is of any relevance therein is that under this new code, the right and power to fix the family domicile is now shared by the
spouses. I cannot perceive how that joint right, which in the first place was never exercised by the spouses, could affect the
domicile fixed by the law for petitioner in 1954 and, for her husband, long prior thereto. It is true that a wife now has the
coordinate power to determine the conjugal or family domicile, but that has no bearing on this case. With the death of her
husband, and each of her children having gotten married and established their own respective domiciles, the exercise of that joint
power was and is no longer called for or material in the present factual setting of this controversy. Instead, what is of concern in
petitioner's case was the matter of her having acquired or not her own domicile of choice.
I agree with the majority's discourse on the virtues of the growing and expanded participation of women in the affairs of the
nation, with equal rights and recognition by Constitution and statutory conferment. However, I have searched in vain for a specific
law or judicial pronouncement which either expressly or by necessary implication supports the majority's desired theory of
automatic reacquisition of or reversion to the domicilium originis of petitioner. Definitely, as between
the settled and desirable legal norms that should govern this issue, there is a world of difference; and, unquestionably, this
should be resolved by legislative articulation but not by the eloquence of the well-turned phrase.
In sum, petitioner having lost Tacloban City as her domicile of origin since 1954 and not having automatically reacquired any
domicile therein, she cannot legally claim that her residency in the political constituency of which it is a part continued since her
birth up to the present. Respondent commission was, therefore, correct in rejecting her pretension to that effect in her
amended/corrected certificate of candidacy, and in holding her to her admission in the original certificate that she had actually
resided in that constituency for only seven months prior to the election. These considerations render it unnecessary to further
pass upon the procedural issues raised by petitioner.
ON THE FOREGOING PREMISES, I vote to DISMISS the petition for lack of merit.
DAVIDE, JR., J ., dissenting:
I respectfully dissent from the opinion of the majority written by Mr. Justice Santiago M. Kapunan, more particularly on the issue
of the petitioner's qualification.
Under Section 7, Subdivision A, Article IX of the Constitution, decisions, orders, or rulings of the COMELEC may be brought to
this Court only by the special civil action for certiorari under Rule 65 of the Rules of Court (Aratuc vs. COMELEC, 88 SCRA 251
[1979]; Dario vs. Mison, 176 SCRA 84 [1989]).
Accordingly, a writ of certiorari may be granted only if the COMELEC has acted without or in excess of jurisdiction or with grave
abuse of discretion (Section 1, Rule 65, Rules of Court). Since the COMELEC has, undoubtedly, jurisdiction over the private
respondent's petition, the only issue left is whether it acted with grave abuse of discretion in disqualifying the petitioner.
My careful and meticulous perusal of the challenged resolution of 24 April 1995 of the COMELEC Second Division and the En
Banc resolution of 7 May 1995 discloses total absence of abuse of discretion, much less grave abuse thereof. The resolution of
the Second Division dispassionately and objectively discussed in minute details the facts which established beyond cavil that
herein petitioner was disqualified as a candidate on the ground of lack of residence in the First Congressional District of Leyte. It
has not misapplied, miscomprehended, or misunderstood facts or circumstances of substance pertinent to the issue of her
residence.
The majority opinion, however, overturned the COMELEC's findings of fact for lack of proof that the petitioner has abandoned
Tolosa as her domicile of origin, which is allegedly within the First Congressional District of Leyte.
I respectfully submit that the petitioner herself has provided the COMELEC, either by admission or by documentary evidence,
overwhelming proof of the loss or abandonment of her domicile of origin, which is Tacloban City and not Tolosa, Leyte. Assuming
that she decided to live again in her domicile of origin, that became her second domicile of choice, where her stay, unfortunately,
was for only seven months before the day of the election. She was then disqualified to be a candidate for the position of
Representative of the First Congressional District of Leyte. A holding to the contrary would be arbitrary.
It may indeed be conceded that the petitioner's domicile of choice was either Tacloban City or Tolosa, Leyte. Nevertheless,
she lost it by operation of law sometime in May 1954 upon her marriage to the then Congressman (later, President) Ferdinand E.
Marcos. A domicile by operation of law is that domicile which the law attributes to a person, independently of his own intention or
actual residence, as results from legal domestic relations as that of the wife arising from marriage (28 C.J.S. Domicile 7, 11).
Under the governing law then, Article 110 of the Civil Code, her new domicile or her domicile of choice was the domicile of her
husband, which was Batac, Ilocos Norte. Said Article reads as follows:
Art. 110. The husband shall fix the residence of the family. But the court may exempt the wife from living
with the husband if he should live abroad unless in the service of the Republic.
Commenting thereon, civilist Arturo M. Tolentino states:
Although the duty of the spouses to live together is mutual, the husband has a predominant right because
he is empowered by law to fix the family residence. This right even predominates over some rights
recognized by law in the wife. For instance, under article 117 the wife may engage in business or practice
a profession or occupation. But because of the power of the husband to fix the family domicile he may fix
it at such a place as would make it impossible for the wife to continue in business or in her profession. For
justifiable reasons, however, the wife may be exempted from living in the residence chosen by the
husband. The husband cannot validly allege desertion by the wife who refuses to follow him to a new
place of residence, when it appears that they have lived for years in a suitable home belonging to the
wife, and that his choice of a different home is not made in good faith. (Commentaries and Jurisprudence
on the Civil Code of the Philippines, vol. 1, 1985 ed., 339).
Under common law, a woman upon her marriage loses her own domicile and, by operation of law, acquires that of her husband,
no matter where the wife actually lives or what she believes or intends. Her domicile is fixed in the sense that it is declared to be
the same as his, and subject to certain limitations, he can change her domicile by changing his own (25 Am Jur 2d Domicile 48,
37).
It must, however, be pointed out that under Article 69 of the Family Code, the fixing of the family domicile is no longer the sole
prerogative of the husband, but is now a joint decision of the spouses, and in case of disagreement the court shall decide. The
said article uses the term "family domicile," and not family residence, as "the spouses may have multiple residences, and the wife
may elect to remain in one of such residences, which may destroy the duty of the spouses to live together and its corresponding
benefits" (ALICIA V. SEMPIO-DIY, Handbook on the Family Code of the Philippines, [1988], 102).
The theory of automatic restoration of a woman's domicile of origin upon the death of her husband, which the majority opinion
adopts to overcome the legal effect of the petitioner's marriage on her domicile, is unsupported by law and by jurisprudence. The
settled doctrine is that after the husband's death the wife has a right to elect her own domicile, but she retains the last domicile of
her husband until she makes an actual change (28 C.J.S. Domicile 12, 27). Or, on the death of the husband, the power of the
wife to acquire her own domicile is revived, but until she exercises the power her domicile remains that of the husband at the time
of his death (25 Am Jur 2d Domicile 62, 45). Note that what is revived is not her domicile of origin but her power to acquire her
own domicile.
Clearly, even after the death of her husband, the petitioner's domicile was that of her husband at the time of his death which
was Batac, Ilocos Norte, since their residences in San Juan, Metro Manila, and San Miguel, Manila, were their residences for
convenience to enable her husband to effectively perform his official duties. Their residence in San Juan was a conjugal home,
and it was there to which she returned in 1991 when she was already a widow. In her sworn certificate of candidacy for the Office
of the President in the synchronized elections of May 1992, she indicated therein that she was a resident of San Juan, Metro
Manila. She also voted in the said elections in that place.
On the basis of her evidence, it was only on 24 August 1994 when she exercised her right as a widow to acquire her own
domicile in Tolosa, Leyte, through her sworn statement requesting the Election Officer of San Juan, Metro Manila, to cancel her
registration in the permanent list of voters in Precinct 157 thereat and praying that she be "re-registered or transferred to Brgy.
Olot, Tolosa, Leyte, the place of [her] birth and permanent residence" (photocopy of Exhibit "B," attached as Annex "2" of private
respondent Montejo's Comment). Notably, she contradicted this sworn statement regarding her place of birth when, in her Voter's
Affidavit sworn to on 15 March 1992 (photocopy of Exhibit "C," attached as Annex "3," Id.), her Voter Registration Record sworn
to on 28 January 1995 (photocopy of Exhibit "E," attached as Annex "5," Id.), and her Certificate of Candidacy sworn to on 8
March 1995 (photocopy of Exhibit "A," attached as Annex "1," Id.), she solemnly declared that she was born in Manila.
The petitioner is even uncertain as to her domicile of origin. Is it Tacloban City or Tolosa, Leyte? In the affidavit attached to her
Answer to the petition for disqualification (Annex "I" of Petition), she declared under oath that her "domicile or residence is
Tacloban City." If she did intend to return to such domicile or residence of origin why did she inform the Election Officer of San
Juan that she would transfer to Olot, Tolosa, Leyte, and indicate in her Voter's Registration Record and in her certificate of
candidacy that her residence is Olot, Tolosa, Leyte? While this uncertainty is not important insofar as residence in the
congressional district is concerned, it nevertheless proves that forty-one years had already lapsed since she had lost or
abandoned her domicile of origin by virtue of marriage and that such length of time diminished her power of recollection or
blurred her memory.
I find to be misplaced the reliance by the majority opinion on Faypon vs. Quirino (96 Phil. 294 [1954]), and the subsequent cases
which established the principle that absence from original residence or domicile of origin to pursue studies, practice one's
profession, or engage in business in other states does not constitute loss of such residence or domicile. So is the reliance on
Section 117 of the Omnibus Election Code which provides that transfer of residence to any other place by reason of one's
"occupation; profession; employment in private and public service; educational activities; work in military or naval reservations;
service in the army, navy or air force, the constabulary or national police force; or confinement or detention in government
institutions in accordance with law" is not deemed as loss of original residence. Those cases and legal provision do not include
marriage of a woman. The reason for the exclusion is, of course, Article 110 of the Civil Code. If it were the intention of this Court
or of the legislature to consider the marriage of a woman as a circumstance which would not operate as an abandonment of
domicile (of origin or of choice), then such cases and legal provision should have expressly mentioned the same.
This Court should not accept as gospel truth the self-serving claim of the petitioner in her affidavit (Annex "A" of her Answer in
COMELEC SPA No. 95-009; Annex "I" of Petition) that her "domicile or residence of origin is Tacloban City," and that she "never
intended to abandon this domicile or residence of origin to which [she] always intended to return whenever absent." Such a claim
of intention cannot prevail over the effect of Article 110 of the Civil Code. Besides, the facts and circumstances or the vicissitudes
of the petitioner's life after her marriage in 1954 conclusively establish that she had indeed abandoned her domicile of origin and
had acquired a new oneanimo et facto (KOSSUTH KENT KENNAN, A Treatise on Residence and Domicile, [1934], 214, 326).
Neither should this Court place complete trust on the petitioner's claim that she "merely committed an honest mistake" in writing
down the word "seven" in the space provided for the residency qualification requirement in the certificate of candidacy. Such a
claim is self-serving and, in the light of the foregoing disquisitions, would be all sound and fury signifying nothing. To me, she did
not commit any mistake, honest or otherwise; what she stated was the truth.
The majority opinion also disregards a basic rule in evidence that he who asserts a fact or the affirmative of an issue has the
burden of proving it (Imperial Victory Shipping Agency vs. NLRC, 200 SCRA 178 [1991]; P.T. Cerna Corp. vs. Court of Appeals,
221 SCRA 19 [1993]). Having admitted marriage to the then Congressman Marcos, the petitioner could not deny the legal
consequence thereof on the change of her domicile to that of her husband. The majority opinion rules or at least concludes that
"[b]y operation of law (domicilium necesarium), her legal domicile at the time of her marriage automatically became Batac, Ilocos
Norte." That conclusion is consistent with Article 110 of the Civil Code. Since she is presumed to retain her deceased husband's
domicile until she exercises her revived power to acquire her own domicile, the burden is upon her to prove that she has
exercised her right to acquire her own domicile. She miserably failed to discharge that burden.
I vote to deny the petition.
Footnotes
1 Jarrolt v. Mabberly, 103 U.S. 580 (1881).
2 CONST, art. VI, states:
Sec. 6. No person shall be a member of the House of Representatives unless he is a natural-born
citizen of the Philippines and, on the day of the election, is at least twenty-five years of age, able
to read and write, and except the party-list representatives, a registered voter in the district in
which he shall be elected, and a resident thereof for a period of not less than one year
immediately preceding the day of the election.
See, Jarrolt v. Mabberly, supra, note 1.
3 Gallego vs. Vera, 73 Phil. 453 (1941).
4 Rollo, p. 114, Annex "D".
5 Rollo, p. 110, Annex "D".
6 Rollo, p. 113.
7 Rollo, p. 111.
8 Rollo, p. 115, Annex "E".
9 Signed by Virgilo S. Oledan, Provincial Election Supervisor IV, Leyte; Rollo,
p. 116, Annex "F".
10 Rollo, p. 117, Annex "G". Petitioner explained the circumstances surrounding the filling up of
the original certificate thus:
1. On March 8, 1995, I filed my certificate of candidacy for Member of the House of
Representatives (Congresswoman) of the First Legislative District of the province of Leyte, which
was drafted by Mr. Filomeno A. Zeta.
2. I learned lately that Congressman Cirilo Montejo wants to disqualify me as I allegedly lack
residence in the constituency because of the entry of the word "SEVEN" in Item No. 8 of my
certificate of candidacy.
3. I read my certificate of candidacy before signing it and thought of the word "RESIDENCE" to
mean actual or physical residence, and the word "SEVEN" merely reflected my actual and
physical residence in Barangay Olot, Tolosa, Leyte.
3.1. The word "SEVEN" was placed on my certificate of candidacy to indicate that at lease one (1)
month had passed from my registration as voter of Tolosa, Leyte, on January 28, 1995, when I
wrote "06" months under "PERIOD OF RESIDENCE" as my actual or physical residence in the
town.
4. I thought then that the sense in Item No. 10 of my certificate of candidacy stating "THAT I AM
eligible for said Office" was sufficient to affirm that I possess all the qualifications, including my
residence, for Member of the House of Representatives for which I am aspiring in the May 8, 1995
elections.
5. The fact, however, is that my domicile or residence of origin is Tacloban City, a component city
of the First Legislative District of Leyte I never intended to abandon this domicile or residence of
origin to which I always intended to return whenever absent; indeed in 1992, I returned to
Tacloban City to live and stay there. On November 5, 1992; I bought my Residence Certificate No.
15226186L there, which is made an integral part hereof as Annex "I" (Annex "2" hereof).
11 Id., at p. 120. See also, Rollo, p. 130-133, Annex "I", petitioner's Affidavit explaining her
residence:
13. I established my domicile, however in Tacloban, Leyte (Tacloban City in 1938, when was little
over eight (8) years old. Shortly after my mother died on April 7, 1938, my widowed father, Vicente
Orestes Romualdez, brought me and my brothers. . .and my sisters to Tacloban, Leyte (now
Tacloban City) his hometown.
xxx xxx xxx
18. I have always considered Tacloban City as my permanent residence or residence of origin
have not abandoned and have never intended to abandon my permanent residence or residence
of origin there. To it I always intend to return whenever absent.
19. In 1952, I went to Manila to work with my cousin, the late speaker
Daniel Z. Romualdez in his office in the House of Representatives.
20. In May, 1954, I married President Ferdinand E. Marcos when he was still the congressman of
Ilocos, Norte.
21. As a dutiful wife who loved him deeply, I lived with him in Batac, Ilocos Norte and registered
as a voter there.
22. In 1965, my husband was elected President of the Republic of the Philippines. Together, we
lived in Malacaang Palace and I registered as a voter in San Miguel, Manila.
23. My registration as voter in Batac, Ilocos Norte; San Juan, Rizal (now San Juan, Metro Manila);
and San Miguel, Manila, was for convenience because I had to live with my husband to serve him
when he was congressman, Senator and President of the Republic of the Philippines. During
those years however, I never intended nor desired to abandon my domicile or residence of origin
in Tacloban City, which I established since I was a child.
xxx xxx xxx
33. Throughout the Marcos Presidency, I spent most of my birthday anniversaries and attended
the Sto. Nini Fiesta in Tacloban City. I regularly visited my domicile or residence of origin in Leyte
and even held important functions and entertained guests and foreign dignitaries there.
34. After President Ferdinand E. Marcos and I, together with our children and innocent
grandchildren were abducted and kidnapped to Honolulu, Hawaii, in February, 1986, my Leyte
properties were sequestered by the PCGG, and were destroyed and cannibalized.
xxx xxx xxx
38. Upon my return to the country, I wanted to immediately live and reside in Tacloban City or in
Olot, Tolosa, Leyte even if my residences there were not livable as they had been destroyed and
cannibalized. The PCGG, however, did not permit and allow me.
xxx xxx xxx
40. After the 1992 Presidential Elections, I lived and resided in the residence of my brother in San
Jose, Tacloban City, and pursued my negotiations with PCGG to recover my sequestered
residences in Tacloban City and Barangay Olot, Tolosa, Leyte.
12 Rollo, p. 122.
13 Commissioners Manolo B. Gorospe and Teresita Dy-Liaco Flores formed the majority opinion.
Commissioner Remedies A. Salazar-Fernando dissented.
14 Rollo, p. 64.
15 Rollo, p. 57-64.
16 Petitioner filed a "Motion to Recall Resolution Promulgated on April 24, 1995 and to Dismiss
the Petition Because of Lapse of Jurisdiction; Alternatively, Motion for Reconsideration." The
Commission's May 7, 1995 Resolution treated the same simply as a Motion for Reconsideration.
17 Commissioners Regalado E. Maambong, Remedios A. Salazar-Fernando and Julio F.
Desamito dissented. All filed separate dissenting opinions. In disqualifying petitioner, the majority
held:
As it stands now, only the Certificate of Candidacy respondent filed on March 8, 1995, stands, and
on the basis of the entries therein, she is disqualified to run for failure to meet the constitutional
requirement of one (1) year of residence in the place where she wanted to be elected.
18 Rollo, p. 78, Annex "B".
19 Rollo, Annex "D".
20 19 SCRA 966 (1967). See also, Corre v. Corre, 100 Phil. 221 (1956).
21 Id. at 969.
22 Uytengsu v. Republic, 95 Phil. 890 (1954).
23 Id.
24 52 Phil. 645 (1928).
25 Citing People v. Bender 144 N.Y.S., 145.
26 61 Phil. 36 (1934).
27 96 Phil. 294 (1954).
28 Id, see also Ujano v. Republic, 17 SCRA 147 (1966); Nuval v. Guray, supra
note 22.
29 II RECORD OF THE 1987 CONSTITUTIONAL CONVENTION, 110 (July 22, 1986).
30 Id.
31 199 SCRA 692 (1991).
32 Id, at 714.
33 61 Phil. 36 (1934).
34 96 Phil. 294, 299-300 (1954).
35 B.P. 881, sec. 117 states:
xxx xxx xxx
Any person who transfers residence to another city, municipality or country solely by reason of his
occupation; profession; employment in private or public service; educational activities; work in
military or naval reservations; service in the army, navy or air force; the constabulary or national
police force; or confinement or detention in government institutions in accordance with law shall
not be deemed to have lost his original residence.
36 Rollo, p. 38.
37 18 Am Jur 219-220.
38 20 Am Jur 71.
39 TOLENTINO 1 COMMENTARIES & JURISPRUDENCE ON THE CIVIL CODE, 220 (1987).
40 Id.
41 TOLENTINO, 1 COMMENTARIES AND JURISPRUDENCE ON CIVIL CODE, 220 (1987).
42 Under modern laws, it is clear that many exceptions to the rule that the domicile of the wife is
determined by that of her husband must obtain. Accordingly, the wife may acquire another and
separate domicile from that of her husband where the theoretical unity of the husband and wife is
dissolved, as it is by the institution of divorce proceedings; or where the husband has given cause
for divorce; or where there is a separation of the parties by agreement, or a permanent separation
due to desertion of the wife by the husband or attributable to cruel treatment on the part of the
husband; or where there has been a forfeiture by the wife of the benefit of the husband's domicile.
9 R.C.L., 545, cited in De La Vina, supra. If the law allows the wife to automatically revert to her
original domicile or acquire a new domicile under these situations, all the more should it sanction
a reversion or the acquisition of a new domicile by the wife upon the death of her husband.
43 41 Phi. 13 (1920).
44 The rule that the wife automatically acquires or follows her husband's domicile is not an
absolute one. A specific situation recognized in Spanish jurisprudence involves the one in which
husband acquiesces (1 Manresa 223) or gives his tacit consent (Scaevola, Civil Code; 354.)
45 42 Phil. 54 (1921).
46 Justice Alicia Sempio-Diy recognizes the same Civil Code distinction. However, taking another
approach, she writes:
(6) The above Article (Article 69, FC) uses the term "family domicile" instead of family residence
because the spouses may have multiple residences, and the wife may elect to remain in one of
such residences, which may destroy the duty of the spouses to live together and its corresponding
benefits. SEMPIO-DIY, HANDBOOK ON THE FAMILY CODE OF THE PHILIPPINES, 102 (1988).
47 Rollo, pp. 132-133.
48 The provision reads: Section 78. Petition to deny due course or to 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 filing of the certificate of candidacy and shall be decided after due notice and
hearing, not later than fifteen days before the election.
49 Marcelino vs. Cruz, 121 SCRA 51 (1983).
50 American Tupe Founders Co. v. Justice's Court, 133 Cal. 819, 65 Pac. 742; Heillen v.
Phillipps, 88 Cal. 557, 26 Pac. 366; Drake v. Bagley, 69 Mo. App. 39; State v. Davis, 194 Mo. 585.
51 Supra, note 39, citing Huffines v. Gold 154 Tenn. 583, 588; 288 S.W. 353, 354.
52 Sec. 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 thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.
Sec. 7 Petition to Deny Due Course or to Cancel a Certificate 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.
53 CONST., art. VI, sec. 11 states:
The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the
sole judge of all questions relating to the election, returns, and qualifications of their respective
Members. . . .
PUNO, J., concurring:
1 Aristotle, Ethica Nichomachea, bk., v. 3, 1131 (a) (W. Ross translation, 1925 ed).
2 It provides: "No person shall be a member of the House of Representatives unless he is a
natural born citizen of the Philippines and on the day of the election, is at least twenty-five years of
age, able to read and write, and except the party list representatives, a registered voter in the
district in which he shall be elected, and a resident thereof for a period of not less than one year
immediately preceding the day of the election." (Emphasis supplied)
3 There are two (2) other instances when a married woman may have a domicile different from
the husband: (1) if they are legally separated pursuant to par. 1, Art. 106 of the Civil Code, and (2)
if the husband forcibly ejects the wife from the conjugal home to have illicit relations with another.
(De la Via v. Villareal and Geopano, 41 Phil. 13 [1920]).
4 Op cit.
5 Id., at pp. 16-17.
6 Id., at p. 20, citing 1 Manresa 223.
7 25 AM JUR 2nd S. 48, p. 37.
8 28 CJS on Domicile, S. 12, 27; 25 AM JUR 2nd on Domicile S. 62, 46.
9 28 CJS, S. 12, p. 24.
10 Restatement of the Law, 2d, Conflict of Laws 2d., S. 21, p. 84.
11 Ibid.
12 83 U.S. 442; 21 Law Ed. 442; S.C. 16 Wall 130.
13 Supra.
14 Supra.
15 In re Green's Estate, 191 N.Y.S. 757, 117 Misc. 800, 165 N.Y.S. 1063, 99 Misc. 582.
16 Clark et al. v. Baker et al., 196 SE 750, 186 Ga 65.
17 Lefcourt, Women and The Law, 1990 ed.
18 404 US 71.
19 28 CJS S. 12, p. 25 citing Shute v. Sargent, 36 A 282, 67 N.H. 305.
20 Op cit., p. 84.
21 Women's Status in Philippine Society, UP Law Center, 1979, pp. 4-6.
22 In submitting the draft of the Family Code to President Corazon Aquino, the Civil Code
Revision Committee stated:
Close to forty years of experience under the Civil Code adopted in 1949 and changes and
developments in all aspects of Filipino Life since then have revealed the unsuitability of certain
provisions of that Code, implanted from foreign sources, to Philippine culture; the unfairness,
unjustness, and gaps or inadequacies of others; and the need to attune them to contemporary
developments and trends.
In particular to cite only a few instances (1) the property regime of conjugal partnership of
gains is not in accord with Filipino custom, especially in the rural areas, which is more congenial
to absolute community of property; (2) there have considerably been more grounds for annulment
of marriage by the Church than those provided by the Code, thus giving rise to the absurd
situation of several marriages already annulled under Canon Law but still considered subsisting
under the Civil Law and making it necessary to make the grounds for annulment under both laws
to coincide; (3) unequal treatment of husband and wife as to rights and responsibilities, which
necessitates a response to the long-standing clamor for equality between men and women now
mandated as a policy to be implemented under the New Constitution; (4) the inadequacy of the
safeguards for strengthening marriage and the family as basic social institutions recognized as
such by the New Constitution; (5) recent developments have shown the absurdity of limiting the
grounds for legal separation to the antiquated two grounds provided under the Civil Code; (6) the
need for additional safeguards to protect our children in the matter of adoption by foreigners; and
(7) to bring our law on paternity and filiation in step with or abreast of the latest scientific
discoveries." (Emphasis supplied)
23 Article 96, Family Code.
24 Article 225, Family Code.
25 Article 70, Family Code.
26 Article 71, Family Code.
27 Article 73, Family Code.
28 Op cit., Handbook on the Family Code of the Philippines, pp. 98-99.
29 As cited in Diy, Handbook on the Family Code of the Philippines, pp. 184-185.
30 Section 1, Article III of the Constitution provides: "No person shall be deprived of life, liberty, or
property without due process of law, nor shall any person be denied the equal protection of the
laws."
31 Exhibit "E"; see also Exhibit "B" in SPA No. 95-001.
32 Exhibit "A" in SPA No. 95-009.
33 Exhibit "2" in SPA No. 95-009.
34 2 SCRA 957, 960 (1961); See Canceran v. COMELEC, 107 Phil. 607 (1960); Gabaldon v.
COMELEC, 99 Phil. 898 (1956).
35 Section 26, Article II of the Constitution also provides: "The State shall guarantee equal access
to opportunities for public service . . . ."
36 Annex "G," Petition.
37 Petition, Annex "B-1" pp. 6-7.
38 73 Phil. 453, 459 (1951).
FRANCISCO, J., concurring:
1 See Articles 68-73 of E.O. 209, as amended, otherwise known as The Family Code of the
Philippines.
2 Residence Certificate No. 15226186L, dated Nov. 5, 1992.
3 PCGG Chairman Gunigundo's letter addressed to Col. Kempis.
ROMERO, J., separate opinion:
1 Art. VI, Sec. 6, Const.: "No person shall be a Member of the House of Representatives unless
he is a natural-born citizen of the Philippines and, on the day of the election, is at least twenty-five
years of age, able to read and write, and, except the party-list representatives, a registered voter
in the district in which he shall be elected, and a resident thereof for a period not less than one
year immediately preceding the day of the election."
2 Art. 110: "The husband shall fix the residence of the family. But the court may exempt the wife
from living with the husband if he should live abroad unless in the service of the Republic.
3 Art. 110, Civil Code.
4 Art. 111, Civil Code.
5 Art. 112, Civil Code.
6 Art. 171, Civil Code.
7 Art. 172, Civil Code.
8 Art. 320, Civil Code.
9 Art. 114, Civil Code.
10 Art. 117, Civil Code.
11 Art. 84, Civil Code.
12 Art. 328, Civil Code.
13 Art. II, Sec. 2, Const.
14 Part IV, Art. 15, Paragraph 4, CEDAW.
15 Executive Order No. 209, July 6, 1987, as amended by Executive Order No. 227, July 17,1987,
which took effect on August 3, 1988.
16 Art. II Sec. 11, Const.
17 Art. II, Sec. 14, Const.
18 Art. 69, Family Code.
19 Art. 71, Family Code.
20 Art. 96, Family Code.
21 Art. 225, Family Code.
22 Republic Act No. 7192 approved February 12, 1992.
23 Ibid., Sec. 5.
MENDOZA, J., separate opinion:
1 Labo, Jr. v. COMELEC, 211 SCRA 297 (1992) (for mayor).
2 Loong v. COMELEC, 216 SCRA 760 (1992) (for regional vice governor).
3 Abella v. Larrazabal, 180 SCRA 509 (1989); Abella v. COMELEC, 201 SCRA 253 (1991) (for
provincial governor).
4 Co. v. HRET, 199 SCRA 692 (1991) (election protest against a Congressman).
5 Faypon v. Quirino, 96 Phil. 294 (1954) (quo warranto against a governor); Gallego v. Verra, 73
Phil. 453 (1941) (quo warranto against a mayor); Larena v. Teves, 61 Phil. 36 (1934) (quo
warranto against a provincial board member); Tanseco v. Arteche, 57 Phil. 227 (1932) (quo
warranto against a governor): Yra v. Abao, 52 Phil. 380 (1928) (quo warranto against a municipal
president); Vivero v. Murillo, 52 Phil. 694 (1929) (quo warranto against a municipal
president). Cf. Aznar v. COMELEC, 185 SCRA 703 (1990) (quo warranto although prematurely
filed, against a governor-elect).
6 R.A. No. 6646, 6; Labo, Jr. v. COMELEC, supra note 1.
7 OEC, 76.
8 Lagumbay v. COMELEC, 16 SCRA 175 (1966).
PADILLA, J., dissenting:
1 Nuval vs. Guray, G.R. No. 30241, December 29, 1928; Larena vs. Teves, G.R.
No. 42439, December 10, 1934; Gallego vs. Verra, G.R. No. 48641, November 24, 1941; De los
Reyes vs. Solidum, G.R. No. 42798. August 31, 1935; but see Romualdez vs. RTC, Br. 7
Tacloban City, where a sudden departure from the country was not deemed "voluntary" so as to
constitute abandonment of domicile both in fact and in law.
2 Annex "A" Petition, pp. 2-4.
REGALADO, J., dissenting:
1 Struble vs. Struble, Tex. Civ. App., 177 S.W. 2d, 279, 283.
2 This is also referred to as natural domicile or domicile by birth (Johnson vs. Twenty-One Bales,
13 Fed. Cas. 863).
3 Story, Conflict of Laws, Sec. 46; Railroad Co. vs. Kimbrough, 115 Ky 512, 74 S.W. 229; and
Johnson vs. Harvey, 261 Ky. 522, 88 S.W. 2d 42, 46, 47, as cited in Black's Law Dictionary, 4th
ed.
4 Article 110, Civil Code.
5 Towson vs. Towson, 126 Va. 640, 102 S.E. 48, 52; Fisher vs. Jordan, C.C.A. Tex., 116 F. 2d.
183, 186; Minick vs. Minick, 111 Fla. 469, 149 So. 483, 488; Hartzler vs. Radeka, 265 Mich. 451,
251 N.W. 554.
6 Citing 18 Am. Jur. 219-220.
7 Montejo vs. Marcos, En Banc, May 10, 1995.
8 Citing 20 Am. Jur. 71.
9 Cheely vs. Clayton, D.C., 110 U.S. 701, L. Ed. 298.
10 In re Gates' Estate, 191 N.Y.S. 757, 117 Misc. 800 In re Green's Estate, 164 N.Y.S. 1063,
99 Misc. 582, affirmed 165 N.Y.S. 1088, 179 App. Div. 890, as reported in 28 C.J.S. 27.
11 Clark vs. Baker, 196 S.E. 750, 186 Ga. 65, op. cit. 37.

The Lawphil Project - Arellano Law Foundation


EN BANC
[G.R. No. 133944. October 28, 1999]
MARCITA MAMBA PEREZ, petitioner, vs. COMMISSION ON
ELECTIONS and RODOLFO E. AGUINALDO, respondents.
D E C I S I O N
MENDOZA, J .:
This is a petition for certiorari to annul the resolution, dated May 10, 1998, of the First
Division of the Commission on Elections, dismissing petitioner Marcita Mamba Perezs petition
for the disqualification of private respondent Rodolfo E. Aguinaldo as a candidate for
Representative of the Third District of Cagayan in the May 11, 1998 elections, as well as the
resolution of the COMELEC en banc, dated June 11, 1998, denying petitioners motion for
reconsideration.
The facts are not in dispute.
On March 26, 1998, private respondent filed his certificate of candidacy for Representative
of the Third District of Cagayan in the May 11, 1998 elections. Four days later, on March 30,
1998, petitioner, as a voter and citizen, filed in the COMELEC a petition for the disqualification
of private respondent as a candidate on the ground that he had not been a resident of the district
for at least one (1) year immediately before the day of the elections as required by Art. VI, 6 of
the Constitution.
In support of her claim, petitioner presented private respondents certificates of
candidacy
[1]
for governor of Cagayan in the 1988, 1992, and 1995 elections; his voters
affidavit
[2]
which he used in the 1987, 1988, 1992, 1995, and 1997 elections; and his voter
registration record dated June 22, 1997,
[3]
in all of which it is stated that he is a resident of
Barangay Calaoagan Dackel, Municipality of Gattaran, which is outside the Third District of
Cagayan. Petitioner alleged that private respondent filed an application
[4]
for the transfer of his
registration as voter from Gattaran, Cagayan (First District) to Tuguegarao, Cagayan (Third
District) only on December 17, 1997 and that said application was approved only on January 7,
1998. Petitioner prayed that in the event the case was not finally decided before the elections
and private respondent obtained the highest number of votes, the latters proclamation be
suspended.
In his answer, private respondent claimed that while he had been a resident of Gattaran,
Cagayan in 1990, he transferred his residence to Tuguegarao, Cagayan by renting an apartment
at No. 13-E Magallanes St., Tuguegarao, Cagayan, in order to hide his mistress from public view
because, at that time, his marriage to his former wife was still subsisting. In support of his claim,
he presented the affidavit
[5]
of the owner of the apartment, Engineer Alfredo Ablaza, in which it
is stated that private respondent had been his lessee since July 1990. In addition, private
respondent presented the contract of lease
[6]
of another residential apartment at Kamias Street,
Tanza, Tuguegarao, Cagayan, for the period July 1, 1995 to June 30, 1996, between him, as
lessee, and Tomas T. Decena, as lessor; his marriage license dated January 7, 1997;
[7]
the
marriage certificate between him and his present wife, Lerma Dumaguit, dated January 18,
1998;
[8]
the birth certificate
[9]
of their daughter, Geniah Laureen D. Aguinaldo; and various
letters,
[10]
all of which show that he had been a resident of Tuguegarao, Cagayan for at least one
(1) year before the May 11, 1998 elections.
On May 10, 1998, the First Division of the COMELEC, in a unanimous
resolution,
[11]
dismissed the petition for disqualification, finding private respondent Aguinaldo
qualified to run as representative for the Third District of Cagayan.
On May 11, 1998, private respondent was elected Representative of the Third District of
Cagayan, with 65,058 votes over his rival Manuel N. Mambas 58,507 votes.
[12]
Accordingly, on
May 16, 1998, he was proclaimed elected and, on May 17, 1998, he was sworn in office.
On May 22, 1998, petitioner filed a motion for reconsideration reiterating her allegation that
private respondent lacked the requisite residency in the Third District of Cagayan and arguing
that the proclamation of private respondent was not a legal impediment to the continuation of the
hearing on her motion in view of R.A. No. 6646, 6. Her motion was, however, denied by the
COMELEC en banc in its resolution of June 11, 1998. Hence, this petition.
Petitioner contends that the COMELEC committed grave abuse of discretion in holding that
private respondent had been a resident of Tuguegarao, Cagayan since July 1990 when he rented
an apartment there in order to hide his mistress. Petitioner contends that transfer of residence to
the place where private respondent is keeping his mistress cannot amount to a change of
domicile because ones domicile is the place where one and ones legitimate family resides. She
also argues that private respondent could not have changed his residence to Tuguegarao in 1990
considering that his certificates of candidacy for governor of Cagayan in the 1988, 1992, and
1995 elections, as well as his voter registration records, the latest of which was made on June 22,
1997, indicate that he is a resident of Gattaran, which is in the First District of
Cagayan. Petitioner avers that in the absence of clear and positive proof, ones domicile of
origin should be deemed to continue and that to successfully effect a change of domicile, one
must prove an actual change of domicile, a bonafide intention of abandoning the former place of
residence and of establishing a new one, and unequivocal acts which correspond with the
intention.
On the other hand, private respondent asks that the instant petition be dismissed. He argues
that after his proclamation on May 16, 1998 and his assumption of office on June 30, 1998, the
COMELEC lost jurisdiction to pass upon his qualifications for the office of Representative. He
argues further that this case should have been filed with the House of Representatives Electoral
Tribunal which has jurisdiction over the subject matter of the case.
In a supplemental pleading,
[13]
petitioner replies that the COMELEC retained jurisdiction
over the case because she filed the petition for disqualification on March 30, 1998, before the
elections on May 11, 1998, and that pursuant to R.A. No. 6646, 6, the COMELEC could
continue the proceedings for the determination of the disqualification of private respondent.
The threshold issue, therefore, is whether the Court has jurisdiction to entertain the instant
petition for certiorari and eventually pass upon private respondents eligibility for the office of
Representative of the Third District of Cagayan. Petitioner, in sustaining the affirmative side of
the question, invokes the following provision of R.A. No. 6646:
Sec. 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 (COMELEC) 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.
As already stated, the petition for disqualification against private respondent was decided by
the First Division of the COMELEC on May 10, 1998. The following day, May 11, 1998, the
elections were held. Notwithstanding the fact that private respondent had already been
proclaimed on May 16, 1998 and had taken his oath of office on May 17, 1998, petitioner still
filed a motion for reconsideration on May 22, 1998, which the COMELEC en banc denied on
June 11, 1998. Clearly, this could not be done. Sec. 6 of R.A. No. 6646 authorizes the
continuation of proceedings for disqualification even after the elections if the respondent has not
been proclaimed. The COMELEC en banc had no jurisdiction to entertain the motion because
the proclamation of private respondent barred further consideration of petitioners action. In the
same vein, considering that at the time of the filing of this petition on June 16, 1998, private
respondent was already a member of the House of Representatives, this Court has no jurisdiction
over the same. Pursuant to Art. VI, 17 of the Constitution, the House of Representatives
Electoral Tribunal has the exclusive original jurisdiction over the petition for the declaration of
private respondents ineligibility. As this Court held in Lazatin v. House of Representatives
Electoral Tribunal:
[14]

The use of the word sole emphasizes the exclusive character of the jurisdiction
conferred. The exercise of the power by the Electoral Commission under the 1935
Constitution has been described as intended to be as complete and unimpaired as if it
had remained originally in the legislature. Earlier, this grant of power to the
legislature was characterized by Justice Malcolm as full, clear and complete. Under
the amended 1935 Constitution, the power was unqualifiedly reposed upon the
Electoral Tribunal and it remained as full, clear and complete as that previously
granted the legislature and the Electoral Commission. The same may be said with
regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution.
Petitioners remedies should have been (1) to reiterate her prayer in the petition for
disqualification, and move for the issuance of an order by the COMELEC suspending the
proclamation of private respondent pending the hearing of the said petition and, in the event the
motion was denied before the proclamation of private respondent, file a petition for certiorari in
this Court with a prayer for a restraining order to enjoin the proclamation of private respondent;
or (2) to file a petition for quo warranto in the House of Representatives Electoral Tribunal
within ten (10) days after the proclamation of private respondent as Representative-elect on May
16, 1998.
[15]
Obviously, neither of these remedies can be availed of now.
In any event, even assuming that the Court has jurisdiction to resolve the instant petition
for certiorari, we find no merit in petitioners allegation that private respondent is ineligible for
the office of Representative of the Third District of Cagayan.
Art. VI, 6 of the Constitution states:
No person shall be a Member of the House of Representatives unless he is a natural-
born citizen of the Philippines and, on the day of the election, is at least twenty-five
years of age, able to read and write, and, except the party-list representatives, a
registered voter in the district in which he shall be elected, and a resident thereof for a
period of not less than one year immediately preceding the day of the election.
The meaning and purpose of the residency requirement were explained recently in our
decision in Aquino v. COMELEC,
[16]
as follows:
. . . [T]he 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, i.e., his domicile, is that to which the Constitution refers when it
speaks of residence for the purposes of election law. The manifest purpose of this
deviation from the usual conceptions of residency in law as explained in Gallego vs.
Vera is to exclude strangers or newcomers unfamiliar with the conditions and needs
of the community from taking advantage of favorable circumstances existing in that
community for electoral gain. While there is nothing wrong with the practice of
establishing residence in a given area for meeting election law requirements, this
nonetheless defeats the essence of representation, which is to place through the assent
of voters those most cognizant and sensitive to the needs of a particular district, if a
candidate falls short of the period of residency mandated by law for him to
qualify. That purpose could be obviously best met by individuals who have either had
actual residence in the area for a given period or who have been domiciled in the same
area either by origin or by choice.
In the case at bar, the COMELEC found that private respondent changed his residence from
Gattaran to Tuguegarao, the capital of Cagayan, in July 1990 on the basis of the following: (1)
the affidavit of Engineer Alfredo Ablaza, the owner of the residential apartment at 13-E
Magallanes St., Tuguegarao, Cagayan, where private respondent had lived in 1990; (2) the
contract of lease between private respondent, as lessee, and Tomas T. Decena, as lessor, of a
residential apartment at Kamias St., Tanza, Tuguegarao, Cagayan, for the period July 1, 1995 to
June 30, 1996; (3) the marriage certificate, dated January 18, 1998, between private respondent
and Lerma Dumaguit; (4) the certificate of live birth of private respondents second daughter;
and (5) various letters addressed to private respondent and his family, which all show that private
respondent was a resident of Tuguegarao, Cagayan for at least one (1) year immediately
preceding the elections on May 11, 1998.
There is thus substantial evidence supporting the finding that private respondent had been a
resident of the Third District of Cagayan and there is nothing in the record to detract from the
merit of this factual finding.
Petitioner contends that the fact that private respondent was a resident of Gattaran, at least
until June 22, 1997, is shown by the following documentary evidence in the record, to wit: (1)
his certificates of candidacy for governor of Cagayan in the 1988, 1992 and 1995 elections; (2)
his voters registration records, the latest of which was made on June 22, 1997; and (3) the fact
that private respondent voted in Gattaran, Cagayan, in the elections of 1987, 1988, 1992 and
1995.
The contention is without merit. The fact that a person is registered as a voter in one district
is not proof that he is not domiciled in another district. Thus, in Faypon v. Quirino,
[17]
this Court
held that the registration of a voter in a place other than his residence of origin is not sufficient to
consider him to have abandoned or lost his residence.
Nor is it of much importance that in his certificates of candidacy for provincial governor in
the elections of 1988, 1992, and 1995, private respondent stated that he was a resident of
Gattaran. Under the law,
[18]
what is required for the election of governor is residency in the
province, not in any district or municipality, one year before the election.
Moreover, as this Court said in Romualdez-Marcos v. COMELEC:
[19]

It is the fact of residence, not a statement in a certificate of candidacy, which ought to
be decisive in determining whether or not an individual has satisfied the constitutions
residency qualification requirement. The said statement becomes material only when
there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact
which would otherwise render a candidate ineligible.
In this case, although private respondent declared in his certificates of candidacy prior to the
May 11, 1998 elections that he was a resident of Gattaran, Cagayan, the fact is that he was
actually a resident of the Third District not just for one (1) year prior to the May 11, 1998
elections but for more than seven (7) years since July 1990. His claim that he had been a
resident of Tuguegarao since July 1990 is credible considering that he was governor from 1988
to 1998 and, therefore, it would be convenient for him to maintain his residence in Tuguegarao,
which is the capital of the province of Cagayan.
As always, the polestar of adjudication in cases of this nature is Gallego v. Vera,
[20]
in which
this Court held: [W]hen the evidence on the alleged lack of residence qualification is weak or
inconclusive and it clearly appears, as in the instant case, that the purpose of the law would not
be thwarted by upholding the right to the office, the will of the electorate should be respected.
In this case, considering the purpose of the residency requirement, i.e., to ensure that the person
elected is familiar with the needs and problems of his constituency, there can be no doubt that
private respondent is qualified, having been governor of the entire province of Cagayan for ten
years immediately before his election as Representative of that provinces Third District.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago, and De
Leon, Jr., JJ., concur.
Vitug, and Panganiban, JJ., in the result.
Pardo, J., no part.
Bellosillo, Kapunan, and Quisumbing, JJ., on official leave.



[1]

Rollo, pp. 39-42; Annexes A, B, and C of the Petition for Disqualification, Annex D, Petition.
[2]

Id., p. 43; Annex D, id.
[3]

Id., p. 44; Annex E, id.
[4]

Id., p. 88; Annex F, id.
[5]

Id., p. 66; Annex 3, Answer to Petition for Disqualification.
[6]

Id., pp. 67-69; Annex 4, id.
[7]

Id., p. 73; Annex 6, id.
[8]

Id., p. 74; Annex 7, id.
[9]

Id., p. 75; Annex 8, id.
[10]

Id., pp. 76-84; Annexes 9 to 11, id.
[11]

Per Commissioner Teresita Dy-Liacco Flores and concurred in by Presiding Commissioner Manolo B. Gorospe
and Commissioner Evelyn I. Fetalino.
[12]

Rollo, p. 117; Annex 1, Comment.
[13]

Rollo, pp. 158-166.
[14]

168 SCRA 391, 401 (1988).
[15]

Revised Rules of the House of Representatives Electoral Tribunal, Rule 17.
[16]

248 SCRA 400, 420-421 (1995).
[17]

96 Phil. 294 (1954).
[18]

LGC, 39(a).
[19]

248 SCRA 301, 326 (1995).
[20]

73 Phil. 453, 459 (1941).

EN BANC
[G.R. No. 137329. August 9, 2000]
ROGELIO M. TORAYNO SR., GENEROSO ELIGAN and JACQUELINE
M. SERIO, petitioners, vs. COMMISSION ON ELECTIONS and
VICENTE Y. EMANO, respondents.
D E C I S I O N
PANGANIBAN, J .:
The Constitution and the law requires residence as a qualification for seeking and
holding elective public office, in order to give candidates the opportunity to be familiar
with the needs, difficulties, aspirations, potentials for growth and all matters vital to the
welfare of their constituencies; likewise, it enables the electorate to evaluate the office
seekers' qualifications and fitness for the job they aspire for. Inasmuch as Vicente Y.
Emano has proven that he, together with his family, (1) had actually resided in a house
he bought in 1973 in Cagayan de Oro City; (2) had actually held office there during his
three terms as provincial governor of Misamis Oriental, the provincial capitol being
located therein; and (3) has registered as voter in the city during the period required by
law, he could not be deemed "a stranger or newcomer" when he ran for and was
overwhelmingly voted as city mayor. Election laws must be liberally construed to give
effect to the popular mandate.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court seeking to
set aside the January 18, 1999 Resolution
[1]
of the Commission on Elections (Comelec)
en banc in SPA No. 98-298, which upheld the July 14, 1998 Resolution
[2]
of the
Comelec First Division. The assailed Resolutions ruled that Private Respondent
Vicente Y. Emano possessed the minimum period of residence to be eligible to vote in
Cagayan de Oro City, as well as be voted mayor thereof.
The Facts
The pertinent facts of the case, as culled from the records, are as follows.
During the 1995 elections, Vicente Y. Emano ran for, was elected, and proclaimed
provincial governor of Misamis Oriental. It was his third consecutive term as governor
of the province. In his Certificate of Candidacy dated March 12, 1995, his residence
was declared to be in Tagoloan, Misamis Oriental.
On June 14, 1997, while still the governor of Misamis Oriental, Emano executed a
Voter Registration Record in Cagayan de Oro City (geographically located in the
Province of Misamis Oriental), a highly urbanized city, in which he claimed 20 years of
residence. On March 25, 1998, he filed his Certificate of Candidacy for mayor of the
city, stating therein that his residence for the preceding two years and five months was
at 1409 San Jose Street, Capistrano Subdivision, Gusa, Cagayan de Oro City.
Among those who ran for the mayorship of the city in 1998, along with Emano, was
Erasmo B. Damasing, counsel of herein petitioners. On May 15, 1998, Petitioners
Rogelio M. Torayno Sr., Generoso Q. Eligan and Jacqueline M. Serio, all residents of
Cagayan de Oro City, filed a Petition before the Comelec, docketed as SPA No. 98-298,
in which they sought the disqualification of Emano as mayoral candidate, on the ground
that he had allegedly failed to meet the one-year residence requirement. Prior to the
resolution of their Petition, the Comelec proclaimed private respondent as the duly
elected city mayor. Thus, on May 29, 1998, petitioners filed another Petition before the
Comelec, this time for quo warranto,
[3]
in which they sought (1) the annulment of the
election of private respondent; and (2) the proclamation of Erasmo B. Damasing, who
had garnered the next highest number of votes, as the duly elected mayor of the city.
In its Resolution dated July 14, 1998, the Comelec First Division denied the Petition
for Disqualification. Upon petitioners' Motion for Reconsideration and Motion for
Consolidation, the two cases were consolidated.
[4]

Ruling of the Comelec
As earlier stated, the Comelec en banc upheld the findings and conclusions of the
First Division, holding that "[t]he records clearly show that the respondent is an actual
resident of Cagayan de Oro City for such a period of time necessary to qualify him to
run for mayor therein. This fact is clearly established by the respondent having a house
in the city which has been existing therein since 1973 and where his family has been
living since then."
Additionally, it ruled:
"There is nothing in the law which bars an elected provincial official from
residing and/or registering as a voter in a highly urbanized city whose
residents are not given the right to vote for and be elected to a position in the
province embracing such highly urbanized city as long as he has complied
with the requirements prescribed by law in the case of a qualified voter.
"Neither can the list of voters submitted as evidence for the petitioners
showing that the respondent was a registered voter as of March 13, 1995 in
Precinct No. 12, Barangay Poblacion, Tagoloan, Misamis Oriental bolster the
petitioner's argument that the respondent is not a resident [or a] registered
voter in Cagayan de Oro City since registration in said Precinct No. 12 does
not preclude the respondent from registering anew in another place."
Hence, this recourse
[5]
before this Court.
Issues
In their Memorandum,
[6]
petitioners submit that the main issue is whether the
"Comelec gravely abused its discretion amounting to lack of jurisdiction in issuing the
questioned Resolutions." Allegedly, the resolution of this issue would depend on the
following:
[7]

"1. Whether or not private respondent Emano's
(a) remaining as governor of Misamis Oriental until he filed his certificate of
candidacy for mayor of Cagayan de Oro City on March 25, 1998 in the May
11, 1998 election;
(b) asserting under oath [that he was] qualified to act as governor of said
province until said date; and
(c) admitting, in sworn statements, [that he was] a resident of Misamis
Oriental,
precluded him from acquiring a bona fide domicile of choice for at least one
(1) year in Cagayan de Oro City prior to the May 11, 1998 elections, as to
disqualify him for being a candidate for city mayor of said City.
2. Differently stated, whether or not Emano's securing a residence certificate
in Cagayan de Oro City, holding offices as governor of Misamis Oriental in the
Capitol Building located in Cagayan de Oro City and having a house therein
where [he had] stay[ed] during his tenure as governor, and registering as a
voter in said City in June 1997, would be legally sufficient, as against the
undisputed facts above enumerated, to constitute a change of his domicile of
birth in Tagoloan, Misamis Oriental in favor of a new domicile of choice in
Cagayan de Oro City for at least one (1) year for purposes of qualifying him to
run for city mayor in the May 11, 1998 elections.
3. Whether or not Erasmo Damasing, the candidate for mayor of Cagayan de
Oro City in the May 11, 1998 elections, who received the second highest
number of votes, can be declared winner, considering that respondent Emano
was disqualified to run for and hold said office and considering that his
disqualification or ineligibility had been extensively brought to the attention
and consciousness of the voters prior to the May 11, 1998 election as to attain
notoriety, notwithstanding which they still voted for him."
Petitioners are seeking the resolution of essentially two questions: (1) whether
private respondent had duly established his residence in Cagayan de Oro City at least
one year prior to the May 11, 1998 elections to qualify him to run for the mayorship
thereof; and (2) if not, whether Erasmo Damasing, the candidate who had received the
second highest number of votes, should be proclaimed mayor of the city.
The Courts Ruling
The Petition has no merit.
Preliminary Matter: Locus Standi of Petitioners
Although not raised by the parties, the legal standing of the petitioners was
deliberated upon by the Court. We note that petitioners pray, among others, for
judgment "declaring Atty. Erasmo B. Damasing as entitled to be proclaimed winner as
mayor in the May 11, 1998 elections in Cagayan de Oro City."
[8]
And yet, Damasing is
not a party to the instant "Petition for Certioraripursuant to Rule[s] 64 and 65" brought
before us.
Under the Rules of Court, a quo warranto may be brought only by (1) the solicitor
general or (2) a public prosecutor or (3) a person claiming to be entitled to the public
office or position usurped or unlawfully held or exercised by another.
[9]
A reading of the
Rules shows that petitioners, none of whom qualify under any of the above three
categories, are without legal standing to bring this suit.
However, the present Petition finds its root in two separate cases filed before the
Comelec: (1) SPC 98-298 for disqualification and (2) EPC 98-62 for quo
warranto. Under our election laws and the Comelec Rules of Procedure, any voter may
file a petition to disqualify a candidate on grounds provided by law,
[10]
or to contest the
election of a city officer on the ground of ineligibility or disloyalty to the Republic.
[11]
The
petitioners herein, being "duly-registered voters" of Cagayan de Oro City, therefore
satisfy the requirement of said laws and rules.
[12]

Main Issue: Residence Qualification for Candidacy
Petitioners argue that private respondent maintains his domicile in Tagoloan,
Misamis Oriental, not in Cagayan de Oro City, as allegedly shown by the following
facts: (1) he had run and won as governor of the province of Misamis Oriental for three
consecutive terms immediately preceding the 1998 elections; (2) in the pleadings he
filed in connection with an election protest against him relating to the 1995 election, he
had stated that he was a resident of Tagoloan, Misamis Oriental; (3) he had fully
exercised the powers and prerogatives of governor until he filed his Certificate of
Candidacy for mayor on March 25, 1998.
Petitioners claim that in discharging his duties as provincial governor, private
respondent remained a resident of the province. They aver that residence is a
continuing qualification that an elective official must possess throughout his term. Thus,
private respondent could not have changed his residence to Cagayan de Oro City while
he was still governor of Misamis Oriental.
Petitioners further contend that the following were not sufficient to constitute a
change of domicile: having a house in Cagayan de Oro City, residing therein while
exercising one's office as governor (the city being the seat of government of the
province), securing a residence certificate and registering as voter therein.
Private respondent, on the other hand, alleges that he actually and physically
resided in Cagayan de Oro City while serving as provincial governor for three
consecutive terms, since the seat of the provincial government was located at the heart
of that city.
[13]
He also avers that one's choice of domicile is a matter of intention, and it
is the person concerned who would be in the best position to make a choice. In this
case, Emano decided to adopt Cagayan de Oro City as his place of residence after the
May 1995 elections. In fact, in January 1997, he secured his Community Tax Certificate
at the City Treasurer's Office, stating therein that he was a resident of 1409 San Jose
Street, Capistrano Subdivision, Gusa, Cagayan de Oro City. During the general
registration of voters in June 1997, he registered in one of the precincts of Gusa,
Cagayan de Oro City. This meant that, at the time, Emano had been a voter of the city
for the minimum period required by law. No one has ever challenged this fact before
any tribunal.
Private respondent contends further that his transfer of legal residence did not ipso
facto divest him of his position as provincial governor. First, there is no law that
prevents an elected official from transferring residence while in office. Second, an
elective official's transfer of residence does not prevent the performance of that official's
duties, especially in private respondent's case in which the seat of government became
his adopted place of residence. Third, as ruled in Frivaldo v. Comelec,
[14]
the loss of any
of the required qualifications for election merely renders the official's title or right to
office open to challenge. In Emano's case, no one challenged his right to the Office of
Provincial Governor when he transferred his residence to Cagayan de Oro
City. Naturally, he continued to discharge his functions as such, until he filed his
candidacy for mayor in March 1998.
Lastly, Emano urges that the sanctity of the people's will, as expressed in the
election result, must be respected. He is not, after all, a stranger to the city, much less
to its voters. During his three terms as governor of Misamis Oriental, his life and
actuations have been closely interwoven with the pulse and beat of Cagayan de Oro
City.
Public Respondent Comelec relies essentially on Romualdez-Marcos v.
Comelec
[15]
in its Memorandum
[16]
which supports the assailed Resolutions, and which
has been filed in view of the solicitor general's Manifestation and Motion in Lieu of
Comment.
[17]
Thus, the poll body argues that "x x x the fact of residence x x x ought to
be decisive in determining whether or not an individual has satisfied the Constitution's
residency qualification requirement."
Law on Qualifications of Local Elective Officials

The pertinent provision sought to be enforced is Section 39 of the Local
Government Code (LGC) of 1991,
[18]
which provides for the qualifications of local
elective officials, as follows:
"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 x
x x 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."
Generally, in requiring candidates to have a minimum period of residence in the
area in which they seek to be elected, the Constitution or the law intends to prevent the
possibility of a "stranger or newcomer unacquainted with the conditions and needs of a
community and not identified with the latter from [seeking] an elective office to serve
that community."
[19]
Such provision is aimed at excluding outsiders "from taking
advantage of favorable circumstances existing in that community for electoral
gain."
[20]
Establishing residence in a community merely to meet an election law
requirement defeats the purpose of representation: to elect through the assent of voters
those most cognizant and sensitive to the needs of the community. This purpose is
"best met by individuals who have either had actual residence in the area for a given
period or who have been domiciled in the same area either by origin or by choice."
[21]

Facts Showing Change of Residence

In the recent en banc case Mamba-Perez v. Comelec,
[22]
this Court ruled that private
respondent therein, now Representative Rodolfo E. Aguinaldo of the Third District of
Cagayan, had duly proven his change of residence from Gattaran, Cagayan (part of the
First District) to Tuguegarao, Cagayan (part of the Third District in which he sought
election as congressman). He proved it with the following facts: (1) in July 1990, he
leased and lived in a residential apartment in Magallanes Street, Tuguegarao, Cagayan;
(2) in July 1995, he leased another residential apartment in Kamias Street, Tanza,
Tuguegarao, Cagayan; (3) the January 18, 1998 Certificate of Marriage between
Aguinaldo and his second wife, Lerma Dumaguit; (4) the Certificate of Live Birth of his
second daughter; and (5) various letters addressed to him and his family showed that
he had been a resident of Tuguegarao for at least one year immediately preceding the
May 1998 elections. The Court also stated that it was not "of much importance that in
his [Aguinaldo's] certificates of candidacy for provincial governor in the elections of
1988, 1992, and 1995, private respondent stated that he was a resident of Gattaran."
[23]

In the case at bar, the Comelec found that private respondent and his family had
actually been residing in Capistrano Subdivision, Gusa, Cagayan de Oro City, in a
house he had bought in 1973. Furthermore, during the three terms (1988-1998) that he
was governor of Misamis Oriental, he physically lived in that city, where the seat of the
provincial government was located. In June 1997, he also registered as voter of the
same city. Based on our ruling in Mamba-Perez, these facts indubitably prove that
Vicente Y. Emano was a resident of Cagayan de Oro City for a period of time sufficient
to qualify him to run for public office therein. Moreover, the Comelec did not find any
bad faith on the part of Emano in his choice of residence.
Petitioners put much emphasis on the fact that Cagayan de Oro City is a highly
urbanized city whose voters cannot participate in the provincial elections. Such political
subdivisions and voting restrictions, however, are simply for the purpose of parity in
representation. The classification of an area as a highly urbanized or independent
component city, for that matter, does not completely isolate its residents, politics,
commerce and other businesses from the entire province -- and vice versa -- especially
when the city is located at the very heart of the province itself, as in this case.
Undeniably, Cagayan de Oro City was once an integral part of Misamis Oriental and
remains a geographical part of the province. Not only is it at the center of the province;
more important, it is itself the seat of the provincial government. As a consequence, the
provincial officials who carry out their functions in the city cannot avoid residing therein;
much less, getting acquainted with its concerns and interests. Vicente Y. Emano,
having been the governor of Misamis Oriental for three terms and consequently residing
in Cagayan de Oro City within that period, could not be said to be a stranger or
newcomer to the city in the last year of his third term, when he decided to adopt it as his
permanent place of residence.
Significantly, the Court also declared in Mamba-Perez that "although private
respondent declared in his certificates of candidacy prior to the May 11, 1998 elections
that he was a resident of Gattaran, Cagayan, the fact is that he was actually a resident
of the Third District not just for one (1) year prior to the May 11, 1998 elections but for
more than seven (7) years since July 1990. His claim that he ha[s] been a resident of
Tuguegarao since July 1990 is credible considering that he was governor from 1988 to
1998 and, therefore, it would be convenient for him to maintain his residence in
Tuguegarao, which is the capital of the province of Cagayan."
Similarly in the instant case, private respondent was actually and physically residing
in Cagayan de Oro City while discharging his duties as governor of Misamis
Oriental. He owned a house in the city and resided there together with his family. He
even paid his 1998 community tax and registered as a voter therein. To all intents and
purposes of the Constitution and the law, he is a resident of Cagayan de Oro City and
eligible to run for mayor thereof.
To petitioners' argument that Emano could not have continued to qualify as
provincial governor if he was indeed a resident of Cagayan de Oro City, we respond
that the issue before this Court is whether Emano's residence in the city qualifies him to
run for and be elected as mayor, not whether he could have continued sitting as
governor of the province. There was no challenge to his eligibility to continue running
the province; hence, this Court cannot make any pronouncement on such
issue. Considerations of due process prevent us from adjudging matters not properly
brought to us. On the basis, however, of the facts proven before the Comelec, we hold
that he has satisfied the residence qualification required by law for the mayorship of the
city.
We stress that the residence requirement is rooted in the desire that officials of
districts or localities be acquainted not only with the metes and bounds of their
constituencies but, more important, with the constituents themselves -- their needs,
difficulties, aspirations, potentials for growth and development, and all matters vital to
their common welfare. The requisite period would give candidates the opportunity to be
familiar with their desired constituencies, and likewise for the electorate to evaluate the
former's qualifications and fitness for the offices they seek.
In other words, the actual, physical and personal presence of herein private
respondent in Cagayan de Oro City is substantial enough to show his intention to fulfill
the duties of mayor and for the voters to evaluate his qualifications for the
mayorship. Petitioners' very legalistic, academic and technical approach to the
residence requirement does not satisfy this simple, practical and common-sense
rationale for the residence requirement.
Interpretation to Favor Popular Mandate

There is no question that private respondent was the overwhelming choice of the
people of Cagayan de Oro City. He won by a margin of about 30,000 votes.
[24]
Thus, we
find it apt to reiterate the principle that the manifest will of the people as expressed
through the ballot must be given fullest effect. In case of doubt, political laws must be
interpreted to give life and spirit to the popular mandate.
[25]
Verily, in Frivaldo v.
Comelec,
[26]
the Court held:
"x x x [T]his Court has repeatedly stressed the importance of giving effect to
the sovereign will in order to ensure the survival of our democracy. In any
action involving the possibility of a reversal of the popular electoral choice, this
Court must exert utmost effort to resolve the issues in a manner that would
give effect to the will of the majority, for it is merely sound public policy to
cause elective offices to be filled by those who are the choice of the
majority. To successfully challenge a winning candidate's qualifications, the
petitioner must clearly demonstrate that the ineligibility is so patently
antagonistic to constitutional and legal principles that overriding such
ineligibility and thereby giving effect to the apparent will of the people would
ultimately create greater prejudice to the very democratic institutions and
juristic traditions that our Constitution and laws so zealously protect and
promote."
In the same vein, we stated in Alberto v. Comelec
[27]
that "election cases involve
public interest; thus, 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."
Indeed, "it would be far better to err in favor of popular sovereignty than to be right
in complex but little understood legalisms."
[28]

In sum, we hold that Respondent Comelec cannot be faulted with abuse, much less
grave abuse, of discretion in upholding private respondent's election.
Corollary Issue: Effect of Disqualification of Winner on Second Placer
With the resolution of the first issue in the positive, it is obvious that the second one
posited by petitioners has become academic and need not be ruled upon.
WHEREFORE, the Petition is DISMISSED and the assailed Comelec
Resolutions AFFIRMED. Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon Jr., JJ., concur.
Bellosillo, J., abroad on official business.



[1]

Rollo, pp. 47-51; signed by Comms. Luzviminda G. Tancangco (officer-in-charge), Manolo B. Gorospe, Julio F.
Desamito, Teresita Dy-Liacco Flores and Japal M. Guiani.
[2]

Ibid., pp. 52-55; signed by Comms. Manolo B. Gorospe (presiding commissioner) and Teresita Dy-Liacco Flores.
[3]

Docketed as EPC No. 98-62.
[4]

Rollo, pp. 124-25.
[5]

This case was deemed submitted for resolution upon this Court's receipt of private respondent's Memorandum on
April 26, 2000.
[6]

Rollo, pp. 264 et seq.
[7]

Petitioners' Memorandum, pp. 9-10, signed by Attys. Ruben E. Agpalo and Renato B. Damasing.
[8]

Petition, p. 38; rollo, p. 41.
[9]

2, 3 & 5, Rule 66, Rules of Court.
[10]

2, Rule 25, Comelec Rules of Procedure, in rel. to 78, Omnibus Election Code, as amended.
[11]

253, Omnibus Election Code, as amended.
[12]

The Court desisted from further discussing whether Congress could constitutionally and by law change
procedures in mandamus or disqualification proceedings, since such constitutional issue had not specifically been
raised.
[13]

See private respondent's Memorandum, signed by Attys. Frederico M. Gapuz and Armando S. Kho who
erroneously labeled their law firm as "counsel for the petitioner."
[14]

174 SCRA 245, June 23, 1989.
[15]

248 SCRA 300, September 18, 1995.
[16]

Signed by Atty. Jose P. Balbuena.
[17]

Rollo pp. 185-190; this pleading was signed by Solicitor General Ricardo P. Galvez, Asst. Sol. Gen. Cecilio O.
Estoesta and Sol. Zenaida Hernandez Perez.
[18]

RA 7160.
[19]

Romualdez-Marcos v. Comelec, 248 SCRA 300, 313, September 18, 1995 per Kapunan, J.; citing Gallego v.
Vera, 73 Phil 453, 459, November 24, 1941.
[20]

Aquino v. Comelec, 248 SCRA 400, 420-21, September 18, 1995, per Kapunan, J.
[21]

Ibid.
[22]

GR No. 133944, October 28, 1999, per Mendoza, J.
[23]

Ibid., p. 10.
[24]

To be exact, 29,273. See private respondent's Memorandum, p. 18. This claim was not disputed by petitioners.
[25]

Garay v. Comelec, 261 SCRA 222, 234, August 28, 1996.
[26]

Supra, p. 769.
[27]

311 SCRA 215, 222, July 27, 1999, per Romero, J. See also Punzalan v. Comelec, 289 SCRA 702, 720, April
27, 1998.
[28]

Frivaldo v. Comelec, 257 SCRA 727, 771-772, June 28, 1996, per Panganiban, J.
EN BANC
[G.R. No. 147909. April 16, 2002]
MAUYAG B. PAPANDAYAN, JR., petitioner, vs. THE COMMISSION ON
ELECTIONS and FAHIDA P. BALT, respondents.
D E C I S I O N
MENDOZA, J .:
This is a petition for certiorari to annul the resolution, dated May 8, 2001, of the Second
Division
[1]
of the Commission on Elections (COMELEC), disqualifying petitioner Mauyag B.
Papandayan, Jr. as a candidate for municipal mayor of the Municipality of Tubaran, Province of
Lanao del Sur in the May 14, 2001 elections, and the resolution of the COMELEC en banc,
dated May 12, 2001, denying petitioners motion for reconsideration.
In the May 14, 2001 elections, three candidates ran for the position of mayor of Tubaran,
Lanao del Sur, namely: petitioner Mauyag B. Papandayan, Jr., respondent Fahida P. Balt, who
was the incumbent mayor seeking reelection, and Maiko Hassan Bantuas. Respondent Balt
sought the disqualification of petitioner in SPC Case No. 01-114 of the COMELEC, alleging that
petitioner was not a resident of Barangay Tangcal in Tubaran, Lanao del Sur but a permanent
resident of Bayang, Lanao del Sur.
In support of her allegation, respondent submitted the joint affidavit,
[2]
dated February 14,
2001, of Barangay Chairman Hadji Bashir Ayonga and two members of the Sangguniang
Barangay of Tangcal, Tubaran, Hadji Taher Batawe and Saadori Buat, stating that petitioner
never resided in Barangay Tangcal, Tubaran as they personally knew all the registered voters of
the said barangay; that petitioner omitted to own nor lease any house in Barangay Tangcal; and
that petitioners father, the late Mauyag Papandayan, Sr., who was a school superintendent, and
his family were permanent residents of Bayang, Lanao del Sur. Respondent also submitted a
similar affidavit,
[3]
dated February 17, 2001, of Samoranao Sarip, a member of the Sangguniang
Barangay of Tangcal. She averred that petitioner did not state in his Voter Registration
Record,
[4]
accomplished on May 8, 1999, the number of years and months (Annex D-1) he had
been a resident of the Municipality of Tubaran.
In his answer,
[5]
petitioner claimed that he was a resident of No. 13 Barangay Tangcal in
Tubaran; that he was the son of the late Mauyag Capal Papandayan, Sr., a former school
superintendent, and Hadja Khalida Magangcong Balt; that both the Capal and Papandayan clans
were natives of Tangcal, Tubaran, and the Magangcong clan were from Boribid, Tubaran while
most of the Balt clan were residents of Bayang; that in 1990, he transferred his domicile from
Bayang to Tangcal and stayed there with his wife Raina Guina Dimaporo, whose family and
relatives were residents and natives of Tangcal, Tubaran; that he managed an agricultural land in
Tubaran which he co-owned with his family; and that he filed in 1998 his certificate of
candidacy for the position of municipal mayor of Tubaran, which he later withdrew.
To support his allegations, petitioner presented the following:
1. Affidavit,
[6]
dated March 8, 2001, of Taha C. Ali, Municipal Election Officer of the Office
of the Assistant Regional Election Director of the COMELEC, Region XII, Iligan City, stating
that, based on the continuous verification of household members in Tubaran, petitioner and his
wife lived at No. 13 Barangay Tangcal, Tubaran.
2. Affidavit of Witness,
[7]
dated March 8, 2001, of Delgado Caontongan, stating that he was
an elementary school teacher of Tubaran and that he was appointed Chairman of the Board of
Election Inspectors (BEI) of Precinct No. 28-A in Tangcal, Tubaran in the May 8, 1999
registration of voters; that he personally received the Voter Registration Record of petitioner
whom he knew to be a resident of Tubaran; and that he knew petitioner to be a qualified voter
and, for that reason, he approved petitioners Voter Registration Record and included his name
in the master list of voters in Precinct No. 28-A.
3. Certificate of Candidacy for Mayor
[8]
of petitioner, filed on January 11, 2001, with the
COMELEC stating, among other things, that he was born on October 14, 1964; that his place of
birth was Marawi City; that he was employed as a municipal employee of a local government
unit in Bayang; that he was a resident of Tangcal, Tubaran, Lanao del Sur; that he was a
registered voter of Precinct No. 28-A in Barangay Tangcal, Tubaran, Lanao del Sur; and that his
length of residency in the Philippines was 36 years and 10 months (Annex 3-A).
4. Affidavit of Witness,
[9]
dated March 8, 2001, of Rafael Guina Dimaporo (brother of
petitioners wife), stating that his family and the family of petitioner were residents of Tangcal,
Tubaran; that his relatives on the maternal side (the Andag and the Guina clans) were natives of
Barangays Tangcal and Datumanong, both in the Municipality of Tubaran; and that during the
May 11, 1992 national and local elections, he was one of the mayoralty candidates who garnered
the second highest number of votes.
5. Affidavit of Witness,
[10]
dated March 8, 2001, of Sobair Tagtal, stating that he was a
farmer and one of the share tenants of an agricultural land located in Tubaran, co-owned by
petitioner and the latters siblings; that petitioner had been managing the land and residing in
Tangcal, Tubaran since 1990; and that he knew petitioner filed his certificate of candidacy in the
1998 mayoralty election in Tubaran.
6. Certification,
[11]
dated March 7, 2001, by Salem Buzar, Election Officer in Bayang, Lanao
del Sur, certifying that petitioner was not registered as a voter of Bayang in the May 11, 1998
and May 14, 2001 elections.
7. Affidavit of Desistance,
[12]
dated March 8, 2001, of Hadji Bashir Ayonga, stating that he
was withdrawing the joint affidavit, dated February 14, 2001, which he had earlier executed,
together with Hadji Taher Batawe and Saadori Buat, as he did not understand the consequences
of signing the said affidavit and its contents had not been explained to him; that he did not know
that the affidavit would be used in a disqualification case against petitioner who was a first
cousin of his grandchildren; that he knew petitioner to be a registered voter and a candidate for
municipal mayor in Tubaran; and that petitioner is a native of Tubaran because he is a
descendant of Datu Sa Tatarikun Tangcal (Sumowa) on the paternal side and a legitimate
member of the Sultanate of Boribid in Tubaran on the maternal side.
8. Affidavit of Desistance,
[13]
dated March 8, 2001, of Samoranao Sarip, stating that he was
withdrawing the affidavit, dated February 17, 2001, which he had earlier executed, as he did not
understand the consequences of signing the said affidavit and its contents had not been explained
to him; that he did not know that the affidavit would be used in a disqualification case against
petitioner; that he knew petitioner to be a registered voter and a candidate for municipal mayor of
Tubaran; and that petitioner is a native of Tubaran because he is a descendant of Datu Sa
Tatarikun Tangcal (Sumowa) on the paternal side and a legitimate member of the Sultanate of
Boribid in Tubaran on the maternal side.
In its resolution, dated May 8, 2001, the COMELEC (Second Division) in SPA No. 01-114
declared petitioner to be disqualified and ordered his name to be stricken off the list of
candidates and all votes cast in his favor not to be counted but considered as stray votes. Citing
the joint affidavit, dated February 14, 2001, of Hadji Bashir Ayonga, Hadji Taher Batawe, and
Saadori Buat and the affidavit of Samoranao Sarip stating that petitioner had not at any time been
a resident of Tangcal, Tubaran, the COMELEC ruled that it was the fact of petitioners
residence, not the statement in his certificate of candidacy, which determined whether or not he
had satisfied the residency requirement of one (1) year preceding the May 14, 2001 elections. In
finding that petitioner never intended to relinquish his former domicile in Bayang, the
COMELEC took note of the testimony of petitioner in the exclusion proceedings against him
before the municipal trial court (Election Case Nos. 2001-237-T to 2001-244-T), in which
petitioner stated that he was living in Marawi City where he was the private secretary of Mayor
Abdillah Ampatua.
On May 14, 2001, elections were held in Tubaran. Petitioner was among those voted by the
electorate for the position of municipal mayor. On May 15, 2001, he received a telegram
[14]
from
the COMELEC notifying him of the resolution, dated May 12, 2001, of the COMELEC en
banc which denied his motion for reconsideration.
On May 17, 2001, he filed the present petition for certiorari with prayer for the issuance of a
temporary restraining order and/or writ of preliminary injunction.
Meanwhile, on May 19, 2001, petitioner filed a petition with the COMELEC (First
Division) in SPC No. 01-039 seeking the issuance of an order directing the Board of Election
Inspectors (BEI) of Tubaran to count and tally the ballots cast in his favor during the May 14,
2001 elections pursuant to COMELEC Resolution N. 4116. The said resolution provides that if
the disqualification case has not become final and executory on the day of the election, the BEI
shall tally and count the votes of the candidate declared disqualified.
On the other hand, respondent filed a pre-proclamation case (SPC No. 01-259) in the
COMELEC.
On May 29, 2001, the First Division of the COMELEC (in SPC No. 01-039) issued an order
suspending the proclamation of petitioner as the duly elected mayor of Tubaran pending the
resolution of this present petition. However, despite the said order (in SPC No. 01-039), the
Municipal Board of Canvassers of Tubaran proceeded with the proclamation of petitioner on
June 3, 2001. Upon motion of respondent, therefore, the COMELEC (First Division), in an
order, dated June 25, 2001, set aside the proclamation of petitioner, without prejudice to the
filing of the appropriate charges against the members of the Board responsible for the
proclamation.
[15]
Thereafter, the COMELEC en banc issued a resolution, dated January 30, 2002,
sustaining the annulment of the proclamation of petitioner and dismissing SPC No. 01-039 for
being moot and academic. It appears that, as a consequence thereof, the incumbent Vice-Mayor
of Tubaran assumed the position of mayor pursuant to the COMELEC en banc resolution dated
January 30, 2002.
On May 22, 2001, this Court required the COMELEC and respondent Fahida Balt to
comment on the petition and, upon the posting of a bond by petitioner in the amount
of P10,000.00, issued a temporary restraining order enjoining the COMELEC from
implementing its resolutions of May 8 and May 12, 2001.
In a manifestation,
[16]
dated May 28, 2001, petitioner submitted the certificates of votes
(Annexes A to A-30), duly signed by the BEI Chairman and his two members, showing that in
the 31 precincts of Tubaran, he obtained 1,744 votes [should be 1,730] votes, while respondent
Balt and Bantuas obtained 1,528 votes [should be 1,540 votes] and 974 votes [should be 967
votes], respectively. Respondent countered that, despite these results, petitioner could not be
proclaimed mayor as she had appealed from the ruling of the Municipal Board of Canvassers of
Tubaran, wherein she sought the exclusion and the annulment of the election returns from certain
precincts in Tubaran because of massive fraud, terrorism, and substitution of registered voters.
After canvass of the election returns, the Municipal Board of Canvassers issued a Municipal
Certificate of Canvass
[17]
showing the following results:
Petitioner Papandayan 1,744 votes
Respondent Balt 1,540 votes
Maiko Hassan Bantuas 968 votes
The Office of the Solicitor General filed a motion in lieu of a comment, recommending that
this Court grant the present petition. It contends that the joint affidavit, dated February 14, 2001,
of Barangay Chairman Hadji Bashir Ayonga and Sangguniang Barangay members Hadji Taher
Batawe and Saadori Buat, stating that petitioner had not at any time been a resident of Tubaran,
constituted hearsay evidence as the three affiants were never presented during the proceedings of
the case. In fact, one of the affiants, Hadji Bashir Ayonga, later executed an Affidavit of
Desistance, dated March 8, 2001, retracting his earlier statements. As for the statements made
by petitioner in Election Case Nos. 2001-237-T to 2001-244-T, pending before the municipal
trial court, that he was then not residing in Bayang but in Tubaran, Lanao del Sur although
living in Marawi City, the Solicitor General says that the same does not necessarily mean that
petitioner was not a resident of Tubaran as such answer merely means that he was previously
living in Marawi City.
In her comment, respondent insists that petitioner was not a resident of Tubaran but of
Bayang. She contends that petitioner made misrepresentations in claiming that he filed his
certificate of candidacy for mayor of Tubaran in the May 11, 1998 elections and that he was a
registered voter in the May 11, 1998 elections; that when petitioner registered as a voter in
Precinct No. 28-A in Tangcal, Tubaran on May 8, 1999, he refused to fill out the space
corresponding to the period of his residency in Tubaran; that it was unusual for the BEI
Chairman to execute an affidavit, stating therein that he allowed the registration of the petitioner
because he had known the latter to be a legitimate resident of [Tubaran] even prior to the May
8, 1999 registration; that it was doubtful if the election officer of Tubaran really conducted a
continuous verification of household members of Tubaran; and that the certification of the
election officer of Bayang that petitioner was not a registered voter in Bayang during the May
11, 1998 and May 14, 2001 elections does not prove that he was a registered voter in
Tubaran. Respondent argues that the COMELEC did not commit any error of jurisdiction to
justify the grant of this petition for certiorari but, if at all, only an error of judgment, which is
correctible by ordinary appeal.
In his reply to respondents comment, petitioner points out that respondent did not appear at
the March 9, 2001 hearing of the disqualification case before the COMELEC; that of the six
witnesses whom respondent said she was presenting, only two Hadji Taher Batawe and
Saadori Buat appeared, and both merely affirmed their joint affidavit; that, although the cross-
examination of the two was reset on March 12, 2001, they nevertheless failed to appear and thus
deprived petitioners counsel of the opportunity to cross-examine them; that respondents four
other witnesses Hadji Bashir Ayonga, Sultan Sarip Bilao, Osio Balbal, and Puno
Balbal did not appear either; that instead Sultan Sarip Bilao later executed an
affidavit
[18]
denying his earlier statement that the petitioner was not a resident of Tubaran; and
that the Second Division of the COMELEC and the COMELEC en banc did not conduct any
hearing in the disqualification case and merely relied on the recommendations submitted by the
hearing officer. According to petitioner, while he filed his certificate of candidacy for mayor of
Tubaran in the May 11, 1998 elections, the same was later withdrawn on his behalf by Casim A.
Guro, his brother-in-law. This fact was corroborated by Macawaris P. Masanang, a sultan in
Tubaran, who stated that he had been an Election Assistant of the COMELEC since 1978 and
that, as such, he received petitioners certificate of candidacy, which was later withdrawn by
Casim A. Guro on behalf of petitioner.
After reviewing the records, we find the foregoing allegations of petitioner to be
correct. Hence, his petition should be granted.
First. Petitioner contends that the resolution, dated May 12, 2001, of the COMELEC en
banc was not yet final and executory when the elections were held on May 14, 2001.
Consequently, the Board of Election Inspectors of Tubaran, in the exercise of its ministerial duty,
had to count the votes cast in his favor. Respondent, on the other hand, avers that the assailed
resolution, dated May 12, 2001, of the COMELEC en banc had attained finality five (5) days
thereafter, on May 17, 2001, as its enforcement had not been restrained by this Court within the
said period. The temporary restraining order should thus be set aside, the same having been
issued by this Court only on May 22, 2001.
At the time the elections were held in May 14, 2001, the assailed resolution, dated May 12,
2001, had not become final and executory. Hence, the Board of Election Inspectors (BEI) was
duty bound to tally and count the votes cast in favor of petitioner. As R.A. No. 6646, 6
provides:
Effect of disqualification. 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.
On the other hand, COMELEC Resolution No. 4116, promulgated on May 7, 2001, in
pertinent parts reads:
RESOLUTION NO. 4116
This pertains to the finality of decisions or resolutions of the Commission en banc or
division, particularly on Special Actions (Disqualification cases).
Sec. 13, Rule 18, of the COMELEC Rules of Procedure on Finality of Decisions or
Resolutions provides:
Sec. 13. Finality of Decisions or Resolutions. (a) In ordinary actions, special
proceedings, provisional remedies, and special reliefs, a decision or resolution of the
Commission en banc shall become final and executory after thirty (30) days from its
promulgation.
(b) In Special Actions and Special cases, a decision or resolution of the
Commission en banc shall become final and executory after five (5) days from its
promulgation unless restrained by the Supreme Court.
(c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of
a Division shall become final and executory after the lapse of five (5) days in Special
Actions and Special cases and after fifteen (15) days in all other actions or
proceedings, following its promulgation.
Special Actions cases refer to the following:
a) Petition to deny due course to certificate of candidacy;
b) Petition to declare a candidate as nuisance candidate;
c) Petition to disqualify a candidate; and
d) Petition to postpone or suspend an election.
. . . .
Considering the foregoing and in order to guide field officials on the finality of
decisions or resolutions on Special Actions cases (disqualification cases); the
Commission RESOLVED, as it hereby RESOLVED, as follows:
1. the decision or resolution of the en banc of the Commission on disqualification
cases shall become final and executory after five (5) days from its promulgation
unless restrained by the Supreme Court;
2. the decision or resolution of a Division on disqualification cases shall become final
and executory after the lapse of five (5) days unless a motion for reconsideration is
seasonably filed;
3. where the ground for the disqualification case is by reason of non-residence,
citizenship, violation of election laws and other analogous cases and on the day of the
election the resolution has not become final and executory, the BEI shall tally and
count the votes of such disqualified candidate. (Emphasis supplied)
Respondent, therefore, is in error in assuming that the issuance of a temporary restraining
order by this Court within five (5) days after the date of the promulgation of the assailed
resolution on May 12, 2001, of the COMELEC en banc is the operative act that prevents it from
attaining finality. The purpose of temporary restraining order was to enjoin the May 12, 2001
resolution of the COMELEC from being enforced despite the fact that, pursuant to COMELEC
Resolution No. 4116, par. 3, as above quoted, the said resolution had not attained finality.
Second. Petitioner alleges that the COMELEC gravely abused its discretion in declaring him
disqualified on the ground that he is not a resident of Tubaran. On the other hand, respondent
argues that whether or not petitioner is a resident of Tubaran is a factual issue which has been
thoroughly passed upon and determined by the Second Division of the COMELEC and later by
the COMELEC en banc. Respondent echoes the ruling of the COMELEC in its resolution of
May 12, 2001, which said that, as an administrative body and a specialized constitutional body
charged with the enforcement and administration of all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and recall, it has more than enough
expertise in its field, and its findings or conclusions are generally respected and even given
finality.
With due regard for the expertise of the COMELEC, we find the evidence to be insufficient
to sustain its resolution. We agree with the Solicitor General, to the contrary, that petitioner has
duly proven that, although he was formerly a resident of the Municipality of Bayang, he later
transferred residence to Tangcal in the Municipality of Tubaran as shown by his actual and
physical presence therein for 10 years prior to the May 14, 2001 elections.
Section 39 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 panglungsod, 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 language or dialect.
Our decisions have applied certain tests and concepts in resolving the issue of whether or not
a candidate has complied with the residency requirement for elective positions. The principle
of animus revertendi has been used to determine whether a candidate has an intention to return
to the place where he seeks to be elected. Corollary to this is a determination whether there has
been an abandonment of his former residence which signifies an intention to depart
therefrom. In Caasi v. Court of Appeals,
[19]
this Court set aside the appealed orders of the
COMELEC and the Court of Appeals and annulled the election of the respondent as Municipal
Mayor of Bolinao, Pangasinan on the ground that respondents immigration to the United States
in 1984 constituted an abandonment of his domicile and residence in the Philippines. Being a
green card holder, which was proof that he was a permanent resident or immigrant of the United
States, and in the absence of any waiver of his status as such before he ran for election on
January 18, 1988, respondent was held to be disqualified under 68 of the Omnibus Election
Code of the Philippines (Batas Pambansa Blg. 881).
In Co v. Electoral Tribunal of the House of Representatives,
[20]
respondent Jose Ong, Jr. was
proclaimed the duly elected representative of the 2
nd
District of Northern Samar. The House of
Representatives Electoral Tribunal (HRET) upheld his election against claims that he was not a
natural born Filipino citizen and a resident of Laoang, Northern Samar. In sustaining the ruling
of the HRET, this Court, citing Faypon v. Quirino,
[21]
applied the concept of animus revertendi or
intent to return, stating that his absence from his residence in order to pursue studies or
practice his profession as a certified public accountant in Manila or his registration as a voter
other than in the place where he was elected did not constitute loss of residence. The fact that
respondent made periodical journeys to his home province in Laoang revealed that he always
hadanimus revertendi.
In Abella v. Commission on Elections and Larrazabal v. Commission on Elections,
[22]
it was
explained that the determination of a persons legal residence or domicile largely depends upon
the intention that may be inferred from his acts, activities, and utterances. In that case, petitioner
Adelina Larrazabal, who had obtained the highest number of votes in the local elections of
February 1, 1988 and who had thus been proclaimed as the duly elected governor, was
disqualified by the COMELEC for lack of residence and registration qualifications, not being a
resident nor a registered voter of Kananga, Leyte. The COMELEC ruled that the attempt of
petitioner Larrazabal to change her residence one year before the election by registering at
Kananga, Leyte to qualify her to run for the position of governor of the province of Leyte was
proof that she considered herself a resident of Ormoc City. This Court affirmed the ruling of the
COMELEC and held that petitioner Larrazabal had established her residence in Ormoc City, not
in Kananga, Leyte, from 1975 up to the time that she ran for the position of Provincial Governor
of Leyte on February 1, 1988. There was no evidence to show that she and her husband
maintained separate residences, i.e., she at Kananga, Leyte and her husband at Ormoc City. The
fact that she occasionally visited Kananga, Leyte through the years did not signify an intention to
continue her residence after leaving that place.
In Romualdez v. RTC, Br. 7, Tacloban City,
[23]
the Court held that domicile and
residence are synonymous. The term residence, as used in the election law, imports not only
an intention to reside in a fixed place but also personal presence in that place, coupled with
conduct indicative of such intention. Domicile denotes a fixed permanent residence to which
when absent for business or pleasure, or for like reasons, one intends to return. In that case,
petitioner Philip G. Romualdez established his residence during the early 1980s in Barangay
Malbog, Tolosa, Leyte. It was held that the sudden departure from the country of petitioner,
because of the EDSA Peoples Power Revolution of 1986, to go into self-exile in the United
States until favorable conditions had been established, was not voluntary so as to constitute an
abandonment of residence. The Court explained that in order to acquire a new domicile by
choice, there must concur (1) residence or bodily presence in the new locality, (2) an intention to
remain there, and (3) an intention to abandon the old domicile. There must be animus
manendi coupled with animus non revertendi. The purpose to remain in or at the domicile of
choice must be for an indefinite period of time; the change of residence must be voluntary; and
the residence at the place chosen for the new domicile must be actual.
The record shows that when petitioner and his wife Raida Guina Dimaporo got married in
1990, they resided in Tangcal, Tubaran. From then on, there was manifest intention on the part
of petitioner to reside in Tubaran, which he deemed to be the place of his conjugal abode with
his wife. The fact that he and his wife transferred residence from Bayang to Tubaran shows that
petitioner was relinquishing his former place of residence in Bayang and that he intended
Tubaran to be his place of domicile. Although petitioner worked as a private secretary of the
mayor of Bayang, he went home to Tubaran everyday after work. This is proof ofanimus
manendi.
Further, the evidence shows that in the May 11, 1998 election, petitioner was registered as a
voter in Tubaran and that in fact he filed his certificate of candidacy although he later withdrew
the same. In the May 8, 1999 registration of voters, he was again registered as a voter in Precinct
No. 28-A of Barangay Tangcal in Tubaran.
In addition, the following bolster petitioners claim that since 1990 he has been a resident of
Tubaran: (a) the continuous verification of household members in Tubaran conducted by the
election officer showed that petitioner and his wife were members of household No. 13 in
Barangay Tangcal, Tubaran; (b) petitioner co-owned an agricultural land in Tubaran; and (c)
Hadji Bashir Ayonga and Samoranao Sarip retracted their previous affidavits which they had
earlier executed and said that they did not understand the contents thereof and did not know that
the affidavits would be used in a disqualification case against petitioner.
Indeed, it is the fact of residence that is the decisive factor in determining whether or not an
individual has satisfied the Constitutions residency qualification requirement. In holding
petitioner not to be a resident of Tubaran, the COMELEC said:
Three (3) disinterested senior citizens, Hadji Bashir Ayonga, Hadji Taher Batawe and
Saadori Buat, all from Tangcal, Tubaran executed a joint affidavit (Exhibits A to A-1)
stating that the respondent has not at any time resided or lived in said
barangay. Moreover, in Election Case Nos. 2001-237-T to 2001-244-T, the
respondent admitted that he was living in Marawi City and was private secretary to
Mayor Abdillah Ampatua (T.S.N., Election Case Nos. 2001-237-T to 2001-244-
T). As opined by Hearing Officer Atty. Cristeto J. Limbaco, these statements made
by the respondent in open court are considered judicial admissions which do not
require proof and cannot be contradicted unless proved to have been made through
palpable mistake, citing Sta. Ana vs. Maliwat (L-23-23, August 31, 1968). On May 3,
2001, respondent through counsel submitted a Motion to Admit Supplemental
Memorandum alleging that respondent could be a domicile of Tubaran even if he has
lived and maintained residences in different places citing the case of Marcos vs.
COMELEC, 248 SCRA 300, 302. The fact remains though that respondent in open
court admitted that he was living in Marawi City. (T.S.N. of Election Case Nos.
2001-237-T to 2001-244-T).
[24]

A candidate running for an elective office should at least have resided in the place
where he seeks election for at least one (1) year immediately preceding the day of the
election. Herein respondent is wanting in this respect.
In citing the joint affidavit of Hadji Bashir Ayonga, Hadji Taher Batawe and Saadori Buat,
the COMELEC overlooked the fact that Hadji Bashir Ayonga subsequently repudiated his
affidavit on the ground that the same had not been explained to him and he did not know that it
would be used to disqualify petitioner. Hadji Bashir Ayonga affirmed that petitioner was a
resident of Tubaran. Indeed, in its findings of fact, the COMELEC stated:
On March 8, 2001, witness for petitioner Hadji Bashir Ayonga executed an Affidavit
of Desistance thereby withdrawing his affidavit and stated that he did not know the
consequences of signing the affidavit he executed on February 14, 2001 as the same
was not explained to him and would be used in a disqualification case against the
respondent. A similar affidavit was also filed by Samoranao Sarip withdrawing his
prior affidavit and stating that he did not know the consequences of his signing said
affidavit of February 17, 2001.
[25]

Apparently, the COMELEC (Second Division) forgot its own findings.
Respondent claims that in Election Case Nos. 2001-237-T to 2001-244-T for exclusion of
petitioner as a voter of Tubaran, petitioner admitted that he was not a resident of that
municipality but of Marawi City. Petitioners testimony is as follows:
Atty. P. Dimaampao: MAUYAG PAPANDAYAN, Jr., what is your job now?
WITNESS: Im the private Secretary of Mayor Abdillah Ampatua.
Atty. P. Dimaampao: For how long?
WITNESS: Since he was elected Mayor of Bayang, Lanao del Sur.
Atty. P. Dimaampao: Are you residing in Bayang, Lanao del Sur.
WITNESS: No, Im in Tubaran, Lanao del Sur. And I was living in Marawi City.
[26]

Petitioners statement that [he] was living in Marawi City cannot be read as saying he was
a resident of Marawi City, because, when asked whether he was residing in Bayang, Lanao del
Sur, he replied: No, Im in Tubaran, Lanao del Sur. What he seems to be saying is that
although he worked as a private secretary of the Mayor of Bayang, he was not a resident of
Bayang, because he was living in Tubaran.
When the evidence of the alleged lack of residence qualification of a candidate for an
elective position is weak or inconclusive and it clearly appears that the purpose of the law would
not be thwarted by upholding the victors right to the office, the will of the electorate should be
respected.
[27]
For the purpose of election laws is to give effect to, rather than frustrate, the will of
the voters.
[28]
To successfully challenge petitioners disqualification, respondent must clearly
demonstrate that petitioners ineligibility is so patently antagonistic to constitutional and legal
principles that overriding such ineligibility and thereby giving effect to the apparent will of the
people would ultimately create greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and promote.
[29]
Respondent failed
to substantiate her claim that petitioner is ineligible to be mayor of Tubaran.
WHEREFORE, the petition is GRANTED and the assailed resolution of the COMELEC
(Second Division), dated May 8, 2001, disqualifying petitioner Mauyag B. Papandayan, Jr. as a
candidate for municipal mayor in Tubaran, Lanao del Sur, and the resolution, dated May 12,
2001, of the COMELEC en banc, denying petitioners motion for reconsideration, are hereby
ANNULLED and SET ASIDE. The temporary restraining order heretofore issued is made
PERMANENT.
SO ORDERED.
Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, De Leon, Jr., Sandoval-
Gutierrez, and Carpio, JJ., concur.
Davide, Jr., C.J., Melo, Kapunan, and Austria-Martinez, on official leave.
Corona, J., took no part in deliberation of this case.



[1]
Per Presiding Commissioner Ralph C. Lantion and concurred in by Commissioner Florentino A. Tuason, Jr.
[2]
Rollo, pp. 50-51; Annex C to C-1 of respondents Petition for Disqualification (of petitioner).
[3]
Id., p. 52; Annex C-2 of respondents Petition for Disqualification (of petitioner).
[4]
Id., p. 53; Annex D of respondents Petition for Disqualification (of petitioner).
[5]
Id., pp. 54-59; Annex E of Petition.
[6]
Id., p. 60, Annex 1 of petitioners Answer (to respondents Petition for Disqualification).
[7]
Id., p. 61; Annex 2 of petitioners Answer (to respondents Petition for Disqualification).
[8]
Id., p. 62; Annex 3 of petitioners Answer (to respondents Petition for Disqualification).
[9]
Id., p. 63; Annex 4 of petitioners Answer (to respondents Petition for Disqualification).
[10]
Id., p. 64; Annex 5 of petitioners Answer (to respondents Petition for Disqualification).
[11]
Id., p. 65; Annex 6 of petitioners Answer (to respondents Petition for Disqualification).
[12]
Id., p. 66; Annex 7 of petitioners Answer (to respondents Petition for Disqualification).
[13]
Id., p. 67; Annex 8 of petitioners Answer (to respondents Petition for Disqualification).
[14]
Id., p. 40; Annex C of Petition.
[15]
Per Commissioner Rufino S.B. Javier and concurred in by Commissioners Luzviminda G. Tancangco and
Resurreccion Z. Borra.
[16]
Rollo, pp. 101-104.
[17]
Id., p. 179.
[18]
Id., pp. 214-215; Annex C of Reply to the Comment of the Private Respondent.
[19]
191 SCRA 229 (1990).
[20]
199 SCRA 692 (1991).
[21]
96 Phil. 294 (1954).
[22]
201 SCRA 253 (1991).
[23]
226 SCRA 408 (1993).
[24]
COMELEC (Second Division) Resolution dated May 8, 2002; Rollo, p. 28.
[25]
Id.; Rollo, p. 27.
[26]
Rollo, pp. 76-77; Annex G to G-1 of Petition.
[27]
Perez v. Commission on Elections, 317 SCRA 641 (1999) citing Gallego v. Vera, 73 Phil. 453, 459 (1941).
[28]
Millare v. Gironella, 122 SCRA 623 (1983); Pacis v. COMELEC, 25 SCRA 377 (1968); Cauton v. COMELEC,
19 SCRA 912 (1967); Silverio v. Castro, 19 SCRA 520 (1967); Canceran v. COMELEC, 107 Phil. 607 (1960).
[29]
Torayno, Sr. v. Commission on Elections, 337 SCRA 574 (2000) citing Frivaldo v. COMELEC, 257 SCRA 727
(1996).
EN BANC
[G.R. No. 151891. November 18, 2002]
MAUYAG B. PAPANDAYAN, JR., petitioner, vs. COMMISSION ON
ELECTIONS and FAHIDA P. BALT, respondents.
R E S O L U T I O N
CARPIO MORALES, J .:
The petition at bar has been rendered moot for the most part by our Decision of
April 16, 2002 in G. R. No. 147909, also titled Mauyag B. Papandayan, Jr. v.
Commission on Elections and Fahida P. Balt (the disqualification case), which reversed
the Resolutions of the Commission on Elections (COMELEC) declaring petitioner
disqualified to run for the position of Mayor of Tubaran, Lanao del Sur. The void
proclamation of petitioner as duly elected mayor, however, necessitated this Resolution.
Petitioner Mauyag B. Papandayan, Jr. and respondent Fahida P. Balt were among
the contenders for the post of Municipal Mayor of Tubaran, Lanao del Sur in the May
14, 2001 elections. Respondent Balt sought the disqualification of petitioner before the
COMELEC on the ground that he was not a resident of Tubaran.
By Resolution of May 8, 2001, the COMELEC declared petitioner disqualified and
accordingly ordered that his name be stricken off the list of candidates for mayor and
that all votes cast in his favor should not be counted but considered as
stray. Petitioners motion for reconsideration of the said May 8, 2001 Resolution was,
by Resolution of May 12, 2001, denied.
Petitioner, however, received the highest number of votes for mayor of Tubaran in
the elections held on May 14, 2001. He thus filed with this Court on May 17, 2001 the
disqualification case, a petition for Certiorari with prayer for the issuance of a temporary
restraining order (TRO) and/or writ of preliminary injunction, praying for the annulment
of the COMELEC Resolutions of May 8 and 12, 2001 disqualifying him as a candidate.
Petitioner subsequently filed on May 19, 2001 with the COMELEC a petition,
docketed as SPC No. 01-039, praying that the Board of Election Inspectors (BEI) of
Tubaran be ordered to count and tally the votes cast in his favor pursuant to COMELEC
Resolution No. 4116 dated May 7, 2001 mandating that if the disqualification had not
become final and executory on the day of the elections, the BEI shall tally and count the
votes of the disqualified candidate.
Respondent Balt in turn filed a pre-proclamation case before the COMELEC against
petitioner, docketed as SPC No. 01-259 (the pre-proclamation case), for exclusion of
election returns.
In the interim or on May 22, 2001, this Court issued in the disqualification case a
TRO enjoining the COMELEC to desist from implementing its Resolutions of May 8 and
12, 2001 disqualifying petitioner as a candidate.
By Order of May 29, 2001, the COMELEC granted the petition in SP No. 01-039 of
petitioner to count and tally the ballots cast in his favor with the qualification that in the
event he wins, his proclamation be suspended pending the resolution by this Court of
the disqualification case. The COMELEC disposed thus:
WHEREFORE, premises considered, the Petition is hereby granted. The Board of
Canvassers of Tuburan, Lanao del Sur is ordered to count and tally the ballots cast in
favor of the Petitioner. However, pending the resolution of the case for certiorari filed
by the Petitioner with the Supreme Court, the same board is directed to immediately
suspend the proclamation of the Petitioner, if winning, as mayor of Tuburan, Lanao
del Sur.
[1]

Petitioner filed a motion for reconsideration of the above-said COMELEC May 29,
2001 Order in SP No. 01-039 insofar as it ordered the suspension of his proclamation,
he arguing that the same constituted an unlawful interference with process or
proceedings of the High Court in [the disqualification case]. Pending the resolution by
the COMELEC of petitioners said motion for reconsideration or on June 3, 2001, the
Municipal Board of Canvassers of Tuburan proceeded with petitioners
proclamation. Respondent Balt thus filed a motion dated June 19, 2001 for the
annulment of the proclamation, which the COMELEC granted by Order of June 25,
2001, it holding that:
x x x. Clearly, the act of proclamation is in violation of the May 29, 2001 Order of
this Commission (First Division). Moreover, the fact that the pre-proclamation case is
also pending with the Commission, the Board should have deferred its proceedings
pursuant to the provision of the Section 245 of the Omnibus Election Code as regards
contested election returns, the pertinent portion which is quoted as follows:
x x x
The board of canvassers shall not proclaim any candidate as winner unless authorized
by the Commission after the latter has ruled on the objections brought to it on appeal
by the losing party and any proclamation made in violation hereof shall be void ab
initio, unless the contested returns will not adversely affect the results of the election.
Wherefore, premises considered, this Commission (First Division) hereby sets aside
the proclamation of Petitioner Mauyag B. Papandayan Jr., last June 3, 2001 without
prejudice to the filing of appropriate charges against the members of the Board who
made the illegal proclamation.
[2]
(Underscoring supplied).
Petitioner filed a motion for reconsideration of the COMELEC Order of June 25,
2001.
Meanwhile or on June 29, 2001, the COMELEC promulgated Resolution No. 4493
(Omnibus Resolution on Pending Cases) considering as terminated certain classes of
pre-proclamation cases under which the pre-proclamation case filed by respondent Balt
was classified.
By Resolution of January 30, 2002, the COMELEC, in SP No. 01-039, denied
petitioners Motion for Reconsideration of its Order of January 25, 2001 annulling his
proclamation. Citing, among other grounds, Section 6 of Republic Act No. 6646
[3]
which
reads:
Sec. 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 of 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,
the COMELEC held that the evidence of guilt of the petitioner is strong in view of the
resolution dated May 8, 2001 of the Second Division (this Commission) disqualifying the
petitioner to run as mayor in the May 14, 2001 elections, as affirmed by the Commission
en banc in its resolution dated May 12, 2001.
[4]
And citing Section 245 of the Omnibus
Election Code, the COMELEC reiterated its directive enjoining the Municipal Board of
Canvassers from proclaiming any candidate as winner in view of the pendency of the
pre-proclamation case filed before it (the COMELEC) by respondent Balt.
Hence, the present petition for Certiorari filed on February 8, 2002 before this Court
against the COMELEC and Baht, petitioner raising the issue of whether the COMELEC
has jurisdiction and authority to suspend [his] proclamation . . . on the ground that the
evidence of his guilt of lack of residence is . . . strong, he contending that the
COMELEC May 29, 2001 Order suspending his proclamation, the June 25, 2001 Order
annulling his proclamation, and the June 30, 20001 En Banc Resolution denying his
Motion for Reconsideration were issued with grave abuse of discretion amounting to
lack of jurisdiction.
In compliance with this Courts Resolution of February 12, 2002, both respondents
COMELEC and Baht filed their respective comments on the petition.
As earlier stated, this Court rendered in the disqualification case its Decision of April
16, 2002 reversing the COMELEC Resolutions declaring petitioner disqualified to run for
mayor. Thus this Court disposed:
WHEREFORE, the petition is GRANTED and the assailed resolution of the
COMELEC (Second Division), dated May 8, 2001, disqualifying petitioner Mauyag
B. Papandayan, Jr. as a candidate for municipal mayor in Tubaran, Lanao del Sur, and
the resolution, dated May 12, 2001, of the COMELEC en banc, denying petitioners
motion for reconsideration, are hereby ANNULLED and SET ASIDE. The temporary
restraining order heretofore issued is made PERMANENT.
Respondent Balts motion for reconsideration of this Courts decision in the
disqualification case was later to be denied by Resolution of June 25, 2002.
On April 30, 2002, petitioner filed a Manifestation that the Honorable Court Already
Decided the [Disqualification Case], he stating that [the] decision of the Honorable
Court [in the disqualification case] has in effect rendered ineffective
and functus oficio the orders of the COMELEC dated May 29, 2001 [suspending his
proclamation], June 25, 2001 [annulling his proclamation], and January 30, 2002
[denying the motions for reconsideration] since the disqualification of the petitioner by
the COMELEC has already been set aside.
The Court agrees in part.
The grounds for the issuance of the herein assailed COMELEC Orders of June 25,
2001 and January 30, 2002 rest mainly upon the pendency before this Court of the
disqualification case and partly on the pending pre-proclamation case filed by
respondent Balt before the COMELEC. The COMELEC Order dated May 29, 2001
suspending the proclamation of petitioner in the event he wins the election is premised
on the pendency of the [disqualification case] in the Supreme Court. The Order dated
June 25, 2001 annulling the proclamation, in turn, is premised on its alleged violation of
the May 29, 2001 Order and the pendency of the pre-proclamation case.
As mentioned above, the COMELEC January 30, 2002 Resolution, citing Section 6
of R. A. No. 6646, ruled that the suspension of petitioners proclamation was warranted
since the evidence of guilt of the petitioner is strong in view of [its] resolution dated May
8, 2001 disqualifying him and or ordering the striking off of his name as mayoral
candidate.
The disqualification case having been decided by this Court in petitioners favor, the
annulment of the herein challenged order suspending petitioners proclamation follows
as a necessary legal consequence. Such effect is deemed read into the decision
5
in
the disqualification case notwithstanding the fact that petitioner did not specifically pray
for such above-said relief.
That leaves as the only matter for consideration petitioners proclamation. The
Court upholds, in light of Section 20 (i) of Republic Act No. 7166,
6
the COMELECs
assailed June 25, 2001 Order setting aside the proclamation of petitioner by the
Tubaran Board of Canvassers. For, at the time of the proclamation, the COMELEC had
yet to rule on the objections interposed by the losing party. There was no showing that
the contested returns would not have adversely affected the results of the election. In
view, however, of above-mentioned COMELEC Resolution No. 4493 dated June 29,
2001 considering terminated certain pre-proclamation cases under which that filed by
respondent Balt falls, there no longer exists any impediment to petitioners
proclamation.
WHEREFORE, the COMELEC is hereby ordered to direct the Tubaran Municipal
Board of Canvassers to proclaim petitioner, Mauyag B. Papandayan, Jr., as duly
elected Mayor of Tubaran, Lanao del Sur.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing,
Ynares-Santiago, Sandoval-Gutierrez, Carpio, Corona, Callejo, Sr., and Azcuna,
JJ., concur.
Austria-Martinez, J., on leave.



[1]
Rollo, p. 46.
[2]
Id., at 48.
[3]
AN ACT INTRODUCING ADDITIONAL REFORMS IN THE ELECTORAL SYSTEM AND FOR OTHER
PURPOSES
[4]
Id., at 57.
5
vide Cristobal vs. Melchor, 101 SCRA 857 (1980).
6
An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing
Appropriations Therefor, and for other purposes. Section 245 of the Omnibus Election Code cited
by the COMELEC has been expressly repealed by Section 39, R.A. No. 7166. The portions of
Section 245 of the Omnibus Election Code pertinent to this case, however, are reproduced
almost verbatim in Section 20 (i), R.A. No. 7166 as follows:
(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the
Commission after the latter has ruled on the objections brought to it on appeal by the losing party.
Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will
not adversely affect the results of the election.
EN BANC
[G.R. No. 150605. December 10, 2002]
EUFROCINO M. CODILLA, SR., petitioner, vs. HON. JOSE DE
VENECIA, ROBERTO P. NAZARENO, in their official capacities
as Speaker and Secretary-General of the House of
Representatives, respectively, and MA. VICTORIA L.
LOCSIN, respondents.
D E C I S I O N
PUNO, J .:
In a democracy, the first self-evident principle is that he who has been rejected by
the people cannot represent the people. Respondent Ma. Victoria L. Locsin lost to
petitioner Eufrocino M. Codilla, Sr. by 17,903 votes in the May 14, 2001 elections as
Representative of the 4
th
legislative district of Leyte. The most sophisticated legal
alchemy cannot justify her insistence that she should continue governing the people of
Leyte against their will. The enforcement of the sovereign will of the people is not
subject to the discretion of any official of the land.
This is a Petition for Mandamus and Quo Warranto directed against respondents
Speaker Jose De Venecia and Secretary-General Roberto P. Nazareno of the House of
Representatives to compel them to implement the decision of the Commission on
Elections en banc by (a) administering the oath of office to petitioner as the duly-elected
Representative of the 4
th
legislative district of Leyte, and (b) registering the name of the
petitioner in the Roll of Members of the House of Representatives, and against
respondent Ma. Victoria L. Locsin for usurping, intruding into, and unlawfully holding
and exercising the said public office on the basis of a void proclamation.
The facts are uncontroverted. Petitioner and respondent Locsin were candidates for
the position of Representative of the 4
th
legislative district of Leyte during the May 14,
2001 elections. At that time, petitioner was the Mayor of Ormoc City while respondent
Locsin was the sitting Representative of the 4
th
legislative district of Leyte. On May 8,
2001, one Josephine de la Cruz, a registered voter of Kananga, Leyte, filed directly with
the COMELEC main office a Petition for Disqualification
[1]
against the petitioner for
indirectly soliciting votes from the registered voters of Kananga and Matag-ob, Leyte, in
violation of Section 68 (a) of the Omnibus Election Code. It was alleged that the
petitioner used the equipments and vehicles owned by the City Government of Ormoc
to extract, haul and distribute gravel and sand to the residents of Kananga and Matag-
ob, Leyte, for the purpose of inducing, influencing or corrupting them to vote for him.
Attached to the petition are the (a) Affidavits of Basilio Bates,
[2]
Danilo D.
Maglasang,
[3]
Cesar A. Laurente;
[4]
(b) Joint Affidavit of Agripino C. Alferez and Rogelio
T. Salvera;
[5]
(c) Extract Records from the Police Blotter executed by Police
Superintendent Elson G. Pecho;
[6]
and (d) Photographs showing government dump
trucks, haulers and surfacers and portions of public roads allegedly filled-in and
surfaced through the intercession of the respondent.
[7]
The case was docketed as SPA
No. 01-208 and assigned to the COMELECs Second Division.
On May 10, 2001, the COMELEC Second Division issued an Order delegating the
hearing and reception of evidence on the disqualification case to the Office of the
Regional Director of Region VIII.
[8]
On May 11, 2001, the COMELEC Second Division
sent a telegram informing the petitioner that a disqualification case was filed against him
and that the petition was remanded to the Regional Election Director for investigation.
[9]

At the time of the elections on May 14, 2001, the Regional Election Director
had yet to hear the disqualification case. Consequently, petitioner was included in
the list of candidates for district representative and was voted for. The initial results
showed that petitioner was the winning candidate.
On May 16, 2001, before the counting could be finished, respondent Locsin joined
as intervenor in SPA No. 128 and filed a Most Urgent Motion to Suspend
Proclamation of Respondent [herein petitioner] with the COMELEC Second
Division.
[10]
Respondent Locsin alleged that the evidence on record against respondent
is very strong and unless rebutted remains. She urged the Commission to set the
hearing of the disqualification case and prayed for the suspension of the proclamation of
the respondent so as not to render the present disqualification case moot and
academic. A copy of the Motion was allegedly served on petitioner by registered
mail but no registry receipt was attached thereto.
[11]

On May 18, 2001, respondent Locsin filed a Second Most Urgent Motion to
Suspend Proclamation of Respondent stating there is clear and convincing
evidence showing that the respondent is undoubtedly guilty of the charges against him
and this remains unrebutted by the respondent. A copy of the Motion was sent to the
petitioner and the corresponding registry receipt was attached to the pleading.
[12]
The
records, however, do not show the date the petitioner received the motion.
On the same day, May 18, 2001, the COMELEC Second Division issued an Ex-
Parte Order
[13]
directing the Provincial Board of Canvassers of Leyte to suspend the
proclamation of petitioner in case he obtains the highest number of votes by reason of
the seriousness of the allegations in the petition for disqualification.
[14]
It also directed
the Regional Election Director to speed up the reception of evidence and to forward
immediately the complete records together with its recommendation to the Office of the
Clerk of the Commission.
[15]
As a result, petitioner was not proclaimed as winner even
though the final election results showed that he garnered 71,350 votes as against
respondent Locsins 53,447 votes.
[16]

At the time that the COMELEC Second Division issued its Order suspending his
proclamation, the petitioner has yet to be summoned to answer the petition for
disqualification. Neither has said petition been set for hearing. It was only on May 24,
2001 that petitioner was able to file an Answer to the petition for his disqualification with
the Regional Election Director, alleging that: (a) he has not received the summons
together with the copy of the petition; (b) he became aware of the matter only by virtue
of the telegram sent by the COMELEC Second Division informing him that a petition
was filed against him and that the Regional Election Director was directed to investigate
and receive evidence therewith; and (c) he obtained a copy of the petition from the
COMELEC Regional Office No. 8 at his own instance.
[17]
Petitioner further alleged that
the maintenance, repair and rehabilitation of barangay roads in the municipalities of
Matag-ob and Kananga were undertaken without his authority, participation or directive
as City Mayor of Ormoc. He attached in his Answer the following: (a) Affidavit of Alex B.
Borinaga;
[18]
(b) Copy of the Excerpt from the Minutes of the Regular Session of
Barangay Monterico;
[19]
(c) Affidavit of Wilfredo A. Fiel;
[20]
(d) Supplemental Affidavit of
Wilfredo A. Fiel;
[21]
and (e) Affidavit of Arnel Y. Padayao.
[22]

On May 25, 2001, petitioner filed a Motion to Lift Order of Suspension,
[23]
alleging
that (a) he did not receive a copy of the Motion to Suspend his Proclamation and hence,
was denied the right to rebut and refute the allegations in the Motion; (b) that he did not
receive a copy of the summons on the petition for disqualification and after personally
obtaining a copy of the petition, filed the requisite answer only on May 24, 2001; and (c)
that he received the telegraph Order of the COMELEC Second Division suspending his
proclamation only on May 22, 2001. He attached documentary evidence in support of
his Motion to Lift the Suspension of his proclamation, and requested the setting of a
hearing on his Motion.
[24]

On May 30, 2001, an oral argument was conducted on the petitioners Motion and
the parties were ordered to submit their respective memoranda.
[25]
On June 4, 2001,
petitioner submitted his Memorandum
[26]
in support of his Motion assailing the
suspension of his proclamation on the grounds that: (a) he was not afforded due
process; (b) the order has no legal and factual basis; and (c) evidence of his guilt is
patently inexistent for the purpose of suspending his proclamation. He prayed that his
proclamation as winning congressional candidate be expediently made, even while the
disqualification case against him continue upon due notice and hearing. He attached the
following additional evidence in his Memorandum: (a) Copy of certification issued by
PNP Senior Inspector Benjamin T. Gorre;
[27]
(b) Certification issued by Elena S. Aviles,
City Budget Officer;
[28]
(c) Copy of certification issued by Wilfredo A. Fiel, City Engineer
of Ormoc;
[29]
(d) Joint Affidavit of Antonio Patenio and Pepito Restituto;
[30]
and (e)
Affidavits of Demetrio Brion,
[31]
Igmedio Rita
[32]
and Gerardo Monteza.
[33]
Respondent
Locsins memorandum also contained additional affidavits of his witnesses.
[34]

Petitioners Motion to Lift the Order of Suspension, however, was not
resolved. Instead, on June 14, 2001, the COMELEC Second Division promulgated
its Resolution
[35]
in SPA No. 01-208 which found the petitioner guilty of indirect
solicitation of votes and ordered his disqualification. It directed the immediate
proclamation of the candidate who garnered the highest number of votes xxx. A
copy of said Resolution was sent by fax to the counsel of petitioner in Cebu City in the
afternoon of the following day.
[36]

By virtue of the said Resolution, the votes cast for petitioner, totaling 71,350,
were declared stray even before said Resolution could gain finality. On June 15,
2001, respondent Locsin was proclaimed as the duly elected Representative of the
4
th
legislative district of Leyte by the Provincial Board of Canvassers of Leyte. It issued
a Certificate of Canvass of Votes and Proclamation of the Winning Candidates for
Member of the House of Representatives stating that MA. VICTORIA LARRAZABAL
LOCSIN obtained a total of FIFTY THREE THOUSAND FOUR HUNDRED FORTY
SEVEN (53,447) votes representing the highest number of votes legally cast in the
legislative district for said office.
[37]
Respondent Locsin took her oath of office on
June 18, 2001 and assumed office on June 30, 2001.
On June 20, 2001, petitioner seasonably filed with the COMELEC en banc a
Motion for Reconsideration
[38]
from the June 14, 2001 Resolution of the COMELEC
Second Division which ordered his disqualification, as well as an Addendum to the
Motion for Reconsideration.
[39]
Petitioner alleged in his Motion for Reconsideration that
the COMELEC Second Division erred: (1) in disqualifying petitioner on the
basis solely of the dubious declaration of the witnesses for respondent Locsin; (2) in
adopting in toto the allegations of the witnesses for respondent Locsin; and (3) in
promulgating the resolution in violation of its own rules of procedure and in directing
therein the immediate proclamation of the second highest vote getter. Respondent
Locsin and her co-petitioner in SPA No. 01-208 filed a joint Opposition to the Motion for
Reconsideration.
[40]

On June 21, 2001, petitioner filed with the COMELEC en banc a Petition for
Declaration of Nullity of Proclamation,
[41]
docketed as SPC No. 01-324, assailing the
validity of the proclamation of respondent Locsin who garnered only the second
highest number of votes. Respondent Locsin filed her Answer alleging that: (1) the
Commission lost jurisdiction to hear and decide the case because of the proclamation of
Locsin and that any question on the election, returns, and qualification of Locsin can
only be taken cognizance of by the House of Representatives Electoral Tribunal
(HRET); (2) the case should be filed and heard in the first instance by a Division of the
Commission and not directly by the Commission en banc; and (3) the proclamation of
Locsin was valid because she received the highest number of valid votes cast, the votes
of Codilla being stray.
On June 28, 2001, petitioner filed an Urgent Manifestation
[42]
stating that he was
deprived of a fair hearing on the disqualification case because while the documentary
evidence adduced in his Memorandum was in support of his Motion for the lifting
of the suspension of his proclamation, the COMELEC Second Division instead
ruled on the main disqualification case. In consonance with his prayer that a full-
dress hearing be conducted on the disqualification case, he submitted Affidavits of
additional witnesses
[43]
which he claims would refute and substantially belie the
allegations of petitioners/intervenors witnesses. A Reply,
[44]
Rejoinder
[45]
and Sur-
Rejoinder
[46]
were respectively filed by the parties. Consequently, the motion for
reconsideration in SPA No. 01-208 and the petition for declaration of nullity in SPC No.
01-324 were submitted for resolution.
From the records, it appears that initially, a Resolution penned by Commissioner
Rufino S.B. Javier, dated July 24, 2001, was submitted to the Office of the Chairman,
dismissing the petition for declaration of nullity for lack of jurisdiction and denying the
motion for reconsideration filed by petitioner Codilla.
[47]
Commissioners Florentino A.
Tuason, Jr. and Resurreccion Z. Borra submitted their respective dissenting
opinions
[48]
to the Javier resolution. It bears emphasis that Commissioner Tuason, Jr.
was the ponente of the Resolution of the COMELEC Second Division which ordered the
disqualification of petitioner but after considering the additional evidence presented by
the latter, he concluded that the totality of the evidence was clearly in petitioners favor.
Equally worth mentioning is the fact that Commissioner Ralph C. Lantion, who was the
Presiding Commissioner of the Second Division, also dissented and voted to grant
Codillas motion for reconsideration on the ground that [T]he people of Leyte have
spoken and I respect the electorates will. x x x.
[49]

On August 29, 2001, then COMELEC Chairman Alfredo L. Benipayo issued a Vote
and Opinion and Summary of Votes reversing the resolution of the Second Division
and declaring the proclamation of respondent Locsin as null and void. The
dispositive portion reads:
JUDGMENT
WHEREFORE, in view of all the foregoing considerations, I concur with Commissioner
Resurreccion Z. Borra, Commissioner Florentino A. Tuason, Jr. and Commissioner
Ralph C. Lantion, in SPA No. 01-208, to GRANT the motion for reconsideration and to
REVERSE the resolution of the Commission (Second Division) promulgated on June 1,
2001, disqualifying Codilla; and subsequently, in SPC No. 01-324, to GRANT the
petition of Eufrocino M. Codilla, Sr., and declare as null and void the proclamation of
losing candidate Locsin.
Accordingly:
1. On the Motion for Reconsideration of the disqualification resolution against
Codilla, promulgated by the Commission (Second Division) on June 14, 2001 (SPA No.
01-208), I vote:
(a) to GRANT the Motion for Reconsideration of respondent-movant
Eufrocino M. Codilla, Sr., and to REVERSE the Resolution of the
Commission (Second Division) promulgated on June 14, 2001, for
insufficiency of evidence;
(b) to lift the order of suspension of proclamation of petitioner Codilla, issued
by the Commission (Second Division) on May 18, 2001, having been
issued without hearing and without any finding that the evidence of guilt
of petitioner Codilla is strong and, thus, null and void;
(c) to nullify the order contained in the Resolution of the Commission
(Second Division) promulgated on June 14, 2001, for (t)he immediate
proclamation of the candidate who garnered the highest number of votes,
to the exclusion of respondent and the concurrent order for the
Provincial Board of Canvasser (sic) of Leyte to immediately reconvene
and thereafter proclaim forthwith the candidate who obtained the highest
number of votes counting out the Respondent the same being violative
of election laws, established jurisprudence, and resolutions of the
Commission;
(d) to nullify the ruling contained in the Resolution of the Commission
(Second Division) promulgated o June 14, 2001, that the votes of
respondent Codilla are considered stray and invalid said ruling being
issued on the basis of an inapplicable decision, and contrary to
established jurisprudence;
(e) to order the Provincial Board of Canvassers of Leyte, upon the finality of
this resolution, to reconvene and proclaim petitioner Codilla as the
winning candidate for Representative of the Fourth Legislative district of
Leyte to comply with its ministerial duty to proclaim the candidate who
garnered the highest number of votes in the elections for that position;
and
(f) to order intervenor-oppositor Locsin, upon the finality of this resolution, to
vacate the office of Representative of the House of Representatives
representing the Fourth legislative district of Leyte and, for this purpose,
to inform the House of Representatives through the Honorable Speaker
of this resolution for its attention and guidance; and
2. On the petition for Declaration of Nullity of proclamation of respondent Ma.
Victoria L. Locsin (SPC No. 01-324), I vote:
(a) to GRANT the petition of Eufrocino M. Codilla, Sr., and declare as null
and void the proclamation of losing candidate Locsin, the proclamation
being violative of election laws, established jurisprudence, and
resolutions of the Commission on Elections;
(b) to lift the order of suspension of proclamation of petitioner Codilla, issued
by the Commission (Second Division) on May 18, 2001, in SPA No. 01-
208, having been issued without hearing and without any finding that the
evidence of guilt of petitioner Codilla is strong and, thus, null and void;
(c) to nullify the order contained in the Resolution of the Commission
(Second Division) promulgated on June 14, 2001, in SPA No. 01-208, for
(t)he immediate proclamation of the candidate who garnered the highest
number of votes, to the exclusion of respondent and the concurrent
order for the provincial Board of Canvasser (sic) of Leyte to immediately
reconvene and thereafter proclaim forthwith the candidate who obtained
the highest number of votes counting out the Respondent the same
being violative of election laws, established jurisprudence, and
resolutions of the Commission;
(d) to nullify the ruling contained in the Resolution of the Commission
(Second Division) promulgated on June 14, 2001, in SPA No. 01-208,
that the votes of respondent Codilla are considered stray and invalid
said ruling being issued on the basis of an inapplicable decision, and
contrary to established jurisprudence;
(e) to order the provincial Board of Canvassers of Leyte, upon the finality of
this resolution, to reconvene and proclaim petitioner Codilla as the
winning candidate for Representative of the Fourth legislative district of
Leyte he (sic) having garnered the highest number of votes in the
elections for the position; and
(f) to order respondent Locsin, upon the finality of this resolution, to vacate
the office of Representative of the House of Representatives representing
the Fourth Legislative district of Leyte and, for this purpose, to inform the
House of Representatives through the Honorable Speaker of this
resolution for its attention and guidance.
Summary of Votes
Considering the FOUR (4) VOTES of the Chairman and Commissioners Resurreccion
Z. Borra, Florentino A. Tuason, Jr., and Ralph C. Lantion, to grant the Motion for
Reconsideration of Codilla and reverse the disqualification Resolution of the
Commission (Second Division) in SPA No. 01-208, promulgated on June 14, 2001, and
as an inevitable consequence, in voting to grant the petition for declaration of nullity of
the proclamation of Ma. Victoria L. Locsin in SPC No. 01-324, the verdict/opinion of the
Chairman and the three (3) Commissioners taken together now stands, as it is, the
MAJORITY DECISION of the Commission En Banc in both cases; and the Resolution
submitted by three (3) Commissioners, namely, Commissioner Rufino S.B. Javier,
Commissioner Luzviminda G. Tancangco, and Commissioner Mehol K. Sadain, is
considered, as it is, the MINORITY DECISION of the Commission En Banc in both
cases.
The MAJORTIY DECISION was arrived at after proper consultation with those who
joined the majority. The Chairman and the three (3) Commissioners comprising the
majority decided that no one will be assigned to write a Majority Decision. Instead, each
one will write his own separate opinion. Commissioners Borra, Tuason, Jr. and the
undersigned Chairman submitted separate opinions. Commissioner Lantion wrote an
explanation on his vote.
[50]

The aforequoted judgment was adopted in a Vote of Adoption signed by
Commissioners Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason, Jr.
[51]

Respondent Locsin did not appeal from this decision annulling her
proclamation. Instead, she filed a Comment and Manifestation
[52]
with the
COMELEC en banc questioning the procedure and the manner by which the decision
was issued. In addition, respondent Locsin requested and was issued an opinion by
House of Representatives Executive Director and Chief Legal Counsel Leonardo B.
Palicte III declaring that the COMELEC has no jurisdiction to nullify the proclamation of
respondent Locsin after she had taken her oath and assumed office since it is the HRET
which is the sole judge of election, returns and qualifications of Members of the
House.
[53]
Relying on this opinion, respondent Locsin submitted a written privileged
speech to the House during its regular session on September 4, 2001, where she
declared that she will not only disregard but will openly defy and disobey the COMELEC
en banc resolution ordering her to vacate her position.
[54]

On September 6, 2001, the COMELEC en banc issued an Order
[55]
constituting the
members of the Provincial Board of Canvassers of Leyte to implement the aforesaid
decision. It likewise ordered the Board to reconvene and proclaim the candidate who
obtained the highest number of votes in the district, as the duly-elected Representative
of the Fourth Legislative district of Leyte, and accordingly issue a Certificate of Canvass
and Proclamation of Winning Candidate for Member of the House of Representatives x
x x, based on the city/municipal certificates of canvass submitted beforehand to the
previous Provincial Board of Canvassers of Leyte x x x.
On September 12, 2001, petitioner Codilla was proclaimed by the Provincial
Board of Canvassers as the duly-elected Representative of the 4
th
legislative
district of Leyte, having obtained a total of 71,350 votes representing the highest
number of votes cast in the district.
[56]
On the same day, petitioner took his oath of office
before Executive Judge Fortunito L. Madrona of the Regional Trial Court of Ormoc
City.
[57]

On September 14, 2001, petitioner wrote the House of Representatives, thru
respondent Speaker De Venecia, informing the House of the August 29, 2001
COMELEC en banc resolution annulling the proclamation of respondent Locsin, and
proclaiming him as the duly-elected Representative of the 4
th
legislative district of
Leyte.
[58]
Petitioner also served notice that I am assuming the duties and responsibilities
as Representative of the fourth legislative district of Leyte to which position I have been
lawfully elected and proclaimed. On behalf of my constituents, I therefore expect that all
rights and privileges intended for the position of Representative of the fourth legislative
district of Leyte be accorded to me, including all physical facilities and staff
support. On the basis of this letter, a Memorandum
[59]
dated October 8, 2001 was
issued by Legal Affairs Deputy Secretary-General Gaudencio A. Mendoza, Jr., for
Speaker De Venecia, stating that there is no legal obstacle to complying with the duly
promulgated and now final and executory COMELEC Decision of August 29, 2001 x
x x.
These notwithstanding, and despite receipt by the House of Representatives of a
copy of the COMELEC en banc resolution on September 20, 2001,
[60]
no action was
taken by the House on the letter-appeal of petitioner. Hence, petitioner sought the
assistance of his party, LAKAS-NUCD-UMDP, which sent a letter
[61]
addressed to
respondent Speaker De Venecia, dated October 25, 2001, and signed by Party
President Teofisto T. Guingona, Jr., Secretary-General Heherson T. Alvarez, and
Region VIII Party Chairman Sergio Antonio F. Apostol, requesting the House of
Representatives to act decisively on the matter in order that petitioner can avail of
whatever remedy is available should their action remain unfavorable or otherwise
undecisive.
In response, Speaker De Venecia sent a letter
[62]
dated October 30, 2001, stating
that:
We recognize the finality of the COMELEC decision and we are inclined to sustain
it. However, Rep. Locsin has officially notified the HOUSE in her privilege speech,
inserted in the HOUSE Journal dated September 4, 2001, that she shall openly defy
and disobey the COMELEC ruling. This ultimately means that implementing the
decision would result in the spectacle of having two (2) legislators occupying the same
congressional seat, a legal situation, the only consideration, that effectively deters the
HOUSEs liberty to take action.
In this light, the accepted wisdom is that the implementation of the COMELEC
decision is a matter that can be best, and with finality, adjudicated by the
Supreme Court, which, hopefully, shall act on it most expeditiously. (emphases
supplied)
Hence, the present petition for mandamus and quo warranto.
Petitioner submits that by virtue of the resolution of the COMELEC en banc which
has become final and executory for failure of respondent Locsin to appeal therefrom, it
has become the ministerial duty: (1) of the Speaker of the House of Representatives, as
its Administrative Head and Presiding Officer, to implement the said resolution of the
COMELEC en banc by installing him as the duly-elected Representative of the
4
th
legislative district of Leyte; and (2) of the Secretary-General, as official custodian of
the records of the House, to formally register his name in the Roll of Members of the
House and delete the name of respondent Locsin therefrom. Petitioner further contends
that respondent Locsin has been usurping and unlawfully holding the public office of
Representative of the 4
th
legislative district of Leyte considering that her premature
proclamation has been declared null and void by the COMELEC en banc. He alleges
that the action or inaction of public respondents has deprived him of his lawful right to
assume the office of Representative of the 4
th
legislative district of Leyte.
In his Comment,
[63]
public respondent Speaker De Venecia alleged that mandamus
will not lie to compel the implementation of the COMELEC decision which is not merely
a ministerial duty but one which requires the exercise of discretion by the Speaker of the
House considering that: (1) it affects the membership of the House; and (2) there is
nothing in the Rules of the House of Representatives which imposes a duty on the
House Speaker to implement a COMELEC decision that unseats an incumbent House
member.
In his Comment,
[64]
public respondent Secretary-General Nazareno alleged that in
reading the name of respondent Locsin during the roll call, and in allowing her to take
her oath before the Speaker-elect and sit as Member of the House during the Joint
Session of Congress, he was merely performing official acts in compliance with the
opinions
[65]
rendered by House of Representatives Chief Counsel and Executive Director
Leonardo C. Palicte III stating that the COMELEC has no jurisdiction to declare the
proclamation of respondent Locsin as null and void since it is the HRET which is the
sole judge of all election, returns and qualifications of Members of the House. He also
contends that the determination of who will sit as Member of the House of
Representatives is not a ministerial function and cannot, thus, be compelled by
mandamus.
Respondent Locsin, in her Comment,
[66]
alleged that the Supreme Court has no
original jurisdiction over an action for quo warranto involving a member of the House of
Representatives for under Section 17, Article VI of the Constitution it is the HRET which
is the sole judge of all contests relating to the election, returns and qualifications of
Members of the House of Representatives. She likewise asserts that this Court cannot
issue the writ of mandamus against a co-equal legislative department without grossly
violating the principle of separation of powers. She contends that the act of recognizing
who should be seated as a bona fide member of the House of Representatives is not a
ministerial function but a legislative prerogative, the performance of which cannot be
compelled by mandamus. Moreover, the prayer for a writ of mandamus cannot be
directed against the Speaker and Secretary-General because they do not have the
authority to enforce and implement the resolution of the COMELEC.
Additionally, respondent Locsin urges that the resolution of the COMELEC en
banc is null and void for lack of jurisdiction. First, it should have dismissed the case
pending before it after her proclamation and after she had taken her oath of
office. Jurisdiction then was vested in the HRET to unseat and remove a Member of the
House of Representatives. Second, the petition for declaration of nullity is clearly a pre-
proclamation controversy and the COMELEC en banc has no original jurisdiction to
hear and decide a pre-proclamation controversy. It must first be heard by a COMELEC
Division. Third, the questioned decision is actually a hodge-podge decision because
of the peculiar manner in which the COMELEC disposed of the case.
Finally, respondent Locsin asserts that the matter of her qualification and eligibility
has been categorically affirmed by the HRET when it dismissed the quo warranto case
filed against her, docketed as HRET Case No. 01-043, entitled Paciano Travero vs.
Ma. Victoria Locsin, on the ground that the allegations stated therein are not proper
grounds for a petition for quo warrantoagainst a Member of the House of
Representatives under section 253 of the Omnibus Election Code and Rule 17 of the
HRET Rules, and that the petition was filed late.
[67]

In his Reply,
[68]
petitioner asserts that the remedy of respondent Locsin from the
COMELEC decision was to file a petition for certiorari with the Supreme Court, not to
seek an opinion from the Chief Legal Counsel of the House of Representatives; that the
HRET has no jurisdiction over a petition for declaration of nullity of proclamation which
is based not on ineligibility or disloyalty, but by reason that the candidate proclaimed as
winner did not obtain the highest number of votes; that the petition for annulment of
proclamation is a pre-proclamation controversy and, hence, falls within the exclusive
jurisdiction of the COMELEC pursuant to section 242 of B.P. Blg. 881
[69]
and section 3,
Article IX (C) of the Constitution; that respondent Speaker De Venecia himself
recognizes the finality of the COMELEC decision but has decided to refer the matter to
the Supreme Court for adjudication; that the enforcement and implementation of a final
decision of the COMELEC involves a ministerial act and does not encroach on the
legislative power of Congress; and that the power to determine who will sit as Member
of the House does not involve an exercise of legislative power but is vested in the
sovereign will of the electorate.
The core issues in this case are: (a) whether the proclamation of respondent Locsin
by the COMELEC Second Division is valid; (b) whether said proclamation divested the
COMELEC en banc of jurisdiction to review its validity; and (c) assuming the invalidity of
said proclamation, whether it is the ministerial duty of the public respondents to
recognize petitioner Codilla, Sr. as the legally elected Representative of the
4
th
legislative district of Leyte vice respondent Locsin.
I
Whether the proclamation of respondent Locsin is valid.
After carefully reviewing the records of this case, we find that the proclamation of
respondent Locsin is null and void for the following reasons:
First. The petitioner was denied due process during the entire proceedings
leading to the proclamation of respondent Locsin.
COMELEC Resolution Nos. 3402
[70]
sets the procedure for disqualification cases
pursuant to section 68 of the Omnibus Election Code, viz:
C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE
OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK OF
QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR
DISQUALIFICATION
(1) The verified petition to disqualify a candidate pursuant to Sec. 68 of the
Omnibus Election Code and the verified petition to disqualify a candidate for
lack of qualifications or possessing same grounds for disqualification, may
be filed any day after the last day for filing of certificates of candidacy but not
later than the date of proclamation.
(2) The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus
Election Code shall be filed in ten (10) legible copies by any citizen of voting
age, or duly registered political party, organization or coalition of political
parties against any candidate who in an action or protest in which he is a
party is declared by final decision of a competent court guilty of, or found by
the Commission of:
2.a having given money or other material consideration to influence, induce
or corrupt the voters or public officials performing electoral functions;
2.b having committed acts of terrorism to enhance his candidacy;
2.c having spent in his election campaign an amount in excess of that
allowed by the Omnibus Election Code;
2.d having solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104 of the Omnibus Election Code;
2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e,
k, v, and cc, sub-paragraph 6 of the Omnibus Election Code, shall be
disqualified from continuing as a candidate, or if he has been elected,
from holding the office.
x x x x x
x x x x
(4) Upon payment of the filing fee of P1,000.00 and legal research fee of
P20.00, the offices concerned shall docket the petition and assign to it a
docket number which must be consecutive, according to the order of receipt
and must bear the year and prefixed as SPA with the corresponding initial of
the name of the office, i.e. SPA (RED) No. C01-001; SPA (PES) No. C01-
001;
(5) Within three (3) days from filing of the petitions, the offices concerned shall
issue summons to the respondent candidate together with a copy of the
petition and its enclosures, if any;
(6) The respondent shall be given three (3) days from receipt of summons
within which to file his verified answer (not a motion to dismiss) to the petition
in ten (10) legible copies, serving a copy thereof upon the petitioner.
Grounds for Motion to Dismiss may be raised as an affirmative defense;
(7) The proceeding shall be summary in nature. In lieu of the testimonies, the
parties shall submit their affidavits or counter-affidavits and other
documentary evidences including their position paper;
(8) The hearing must be completed within ten (10) days from the date of the
filing of the answer. The hearing officer concerned shall submit to the Clerk
of the Commission through the fastest means of communication, his findings,
reports and recommendations within five (5) days from the completion of the
hearing and reception of evidence together with the complete records of the
case;
(9) Upon receipt of the records of the case of the findings, reports and
recommendation of the hearing officer concerned, the Clerk of the
Commission shall immediately docket the case consecutively and calendar
the same for raffle to a division;
(10) The division to whom the case is raffled, shall after consultation, assign the
same to a member who shall pen the decision, within five (5) days from the
date of consultation.
Resolution No. 3402 clearly requires the COMELEC, through the Regional Election
Director, to issue summons to the respondent candidate together with a copy of the
petition and its enclosures, if any, within three (3) days from the filing of the petition for
disqualification. Undoubtedly, this is to afford the respondent candidate the opportunity
to answer the allegations in the petition and hear his side. To ensure compliance with
this requirement, the COMELEC Rules of Procedure requires the return of the
summons together with the proof of service to the Clerk of Court of the COMELEC
when service has been completed, viz:
Rule 14. Summons
x x x x x
x x x x
Section 5. Return.- When the service has been completed by personal service, the
server shall give notice thereof, by registered mail, to the protestant or his counsel and
shall return the summons to the Clerk of Court concerned who issued it, accompanied
with the proof of service.
Section 6. Proof of Service.- Proof of service of summons shall be made in the manner
provided for in the Rules of Court in the Philippines.
Thereafter, hearings, to be completed within ten (10) days from the filing of the
Answer, must be conducted. The hearing officer is required to submit to the Clerk of the
Commission his findings, reports and recommendations within five (5) days from the
completion of the hearing and reception of evidence together with the complete records
of the case.
(a) Petitioner was not notified of the petition for his disqualification through the
service of summons nor of the Motions to suspend his proclamation.
The records of the case do not show that summons was served on the
petitioner. They do not contain a copy of the summons allegedly served on the
petitioner and its corresponding proof of service. Furthermore, private respondent
never rebutted petitioners repeated assertion that he was not properly notified of the
petition for his disqualification because he never received summons.
[71]
Petitioner claims
that prior to receiving a telegraphed Order from the COMELEC Second Division on May
22, 2001, directing the District Board of Canvassers to suspend his proclamation, he
was never summoned nor furnished a copy of the petition for his disqualification. He
was able to obtain a copy of the petition and the May 22 Order of the COMELEC
Second Division by personally going to the COMELEC Regional Office on May 23,
2001. Thus, he was able to file his Answer to the disqualification case only on May 24,
2001.
More, the proclamation of the petitioner was suspended in gross violation of section
72 of the Omnibus Election Code which provides:
Sec. 72. Effects of disqualification cases and priority.- The Commission and the courts
shall give priority to cases of disqualification by reason of violation of this Act to the
end that a final decision shall be rendered not later than seven days before the
election in which the disqualification is sought.
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. Nevertheless, 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, his violation of the provisions of the preceding sections shall not
prevent his proclamation and assumption to office. (emphases supplied)
In the instant case, petitioner has not been disqualified by final judgment when the
elections were conducted on May 14, 2001. The Regional Election Director has yet to
conduct hearing on the petition for his disqualification. After the elections, petitioner was
voted in office by a wide margin of 17,903. On May 16, 2001, however, respondent
Locsin filed a Most Urgent Motion for the suspension of petitioners proclamation. The
Most Urgent Motion contained a statement to the effect that a copy was served to the
petitioner through registered mail. The records reveal that no registry receipt was
attached to prove such service.
[72]
This violates COMELEC Rules of Procedure requiring
notice and service of the motion to all parties, viz:
Section 4. Notice.- Notice of a motion shall be served by the movant to all parties
concerned, at least three (3) days before the hearing thereof, together with a copy of the
motion. For good cause shown, the motion may be heard on shorter notice, especially
on matters which the Commission or the Division may dispose of on its own motion.
The notice shall be directed to the parties concerned and shall state the time and place
of the hearing of the motion.
Section 5. Proof of Service.- No motion shall be acted upon by the Commission
without proof of service of notice thereof, except when the Commission or a Division is
satisfied that the rights of the adverse party or parties are not affected.
Respondents Most Urgent Motion does not fall under the exceptions to notice and
service of motions. First, the suspension of proclamation of a winning candidate is not a
matter which the COMELEC Second Division can dispose of motu proprio. Section 6 of
R.A. No. 6646
[73]
requires that the suspension must be upon motion by the complainant
or any intervenor, viz:
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 (COMELEC) shall continue with
the trial or 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. (emphases supplied)
Second, the right of an adverse party, in this case, the petitioner, is clearly
affected. Given the lack of service of the Most Urgent Motion to the petitioner, said
Motion is a mere scrap of paper.
[74]
It cannot be acted upon by the COMELEC Second
Division.
On May 18, 2001 at exactly 5:00 p.m.,
[75]
respondent Locsin filed a Second Most
Urgent Motion for the suspension of petitioners proclamation. Petitioner was served a
copy of the Second Motion again by registered mail. A registry receipt
[76]
was attached
evidencing service of the Second Most Urgent Motion to the petitioner but it does not
appear when the petitioner received a copy thereof. That same day, the COMELEC
Second Division issued an Order suspending the proclamation of petitioner. Clearly, the
petitioner was not given any opportunity to contest the allegations contained in the
petition for disqualification. The Order was issued on the very same day the Second
Most Urgent Motion was filed. The petitioner could not have received the Second Most
Urgent Motion, let alone answer the same on time as he was served a copy thereof by
registered mail.
Under section 6 of R.A. No. 6646, the COMELEC can suspend proclamation only
when evidence of the winning candidates guilt is strong. In the case at bar, the
COMELEC Second Division did not make any specific finding that evidence of
petitioners guilt is strong. Its only basis in suspending the proclamation of the
petitioner is the seriousness of the allegations in the petition for disqualification.
Pertinent portion of the Order reads:
Without giving due course to the petition xxx the Commission (2
nd
Division), pursuant to
Section 72 of the Omnibus Election Code in relation to Section 6, Republic Act No. 6646
xxx andconsidering the serious allegations in the petition, hereby directs the
Provincial Board of Canvassers of Leyte to suspend the proclamation of
respondent, if winning, until further orders.
[77]
(emphases supplied)
We hold that absent any finding that the evidence on the guilt of the petitioner is
strong, the COMELEC Second Division gravely abused its power when it suspended his
proclamation.
(b) The COMELEC Second Division did not give ample opportunity to the
petitioner to adduce evidence in support of his defense in the petition for his
disqualification.
All throughout the proceeding, no hearing was conducted on the petition for
disqualification in gross violation of section 6 of R.A. No. 6646 which specifically enjoins
the COMELEC to continue with the trial or hearing of the action, inquiry, or
protest. This is also in violation of COMELEC Resolution No. 3402 requiring the
Regional Election Director to complete the hearing and reception of evidence within
ten (10) days from the filing of the Answer, and to submit his findings, reports, and
recommendations within the five (5) days from completion of the hearing and the
reception of evidence.
Petitioner filed a Motion to Lift the Order of Suspension of his proclamation on
May 25, 2001. Although an oral argument on this Motion was held, and the parties were
allowed to file their respective memoranda, the Motion was not acted upon. Instead, the
COMELEC Second Division issued a Resolution on the petition for disqualification
against the petitioner. It was based on the following evidence: (a) the affidavits
attached to the Petition for Disqualification; (b) the affidavits attached to the Answer;
and (c) the respective memoranda of the parties.
On this score, it bears emphasis that the hearing for Motion to Lift the Order of
Suspension cannot be substituted for the hearing in the disqualification case. Although
intrinsically linked, it is not to be supposed that the evidence of the parties in the main
disqualification case are the same as those in the Motion to Lift the Order of
Suspension. The parties may have other evidence which they may deem proper to
present only on the hearing for the disqualification case. Also, there may be evidence
which are unavailable during the hearing for the Motion to Lift the Order of Suspension
but which may be available during the hearing for the disqualification case.
In the case at bar, petitioner asserts that he submitted his Memorandum merely to
support his Motion to Lift the Order of Suspension. It was not intended to answer and
refute the disqualification case against him. This submission was sustained by the
COMELEC en banc. Hence, the members of the COMELEC en banc concluded, upon
consideration of the additional affidavits attached in his Urgent Manifestation, that the
evidence to disqualify the petitioner was insufficient. More specifically, the ponente of
the challenged Resolution of the COMELEC Second Division held:
Indeed, I find from the records that the May 30, 2001 hearing of the COMELEC
(Second Division) concerns only the incident relating to the Motion to Lift Order of
Suspension of Proclamation. It also appears that the order for the submission of the
parties respective memoranda was in lieu of the parties oral argument on the motion.
This would explain the fact that Codillas Memorandum refers mainly to the validity of
the issuance of the order of suspension of proclamation. There is, however, no record of
any hearing on the urgent motion for the suspension of proclamation. Indeed,it was
only upon the filing of the Urgent Manifestation by Codilla that the Members of
the Commission (Second Division) and other Members of the Commission en
banc had the opportunity to consider Codillas affidavits. This time, Codilla was
able to present his side, thus, completing the presentation of evidentiary
documents from both sides.
[78]
(emphases supplied)
Indeed, careful reading of the petitioners Memorandum shows that he confined his
arguments in support of his Motion to Lift the Order of Suspension. In said
Memorandum, petitioner raised the following issues: (a) he was utterly deprived of
procedural due process, and consequently, the order suspending his proclamation is
null and void; (b) the said order of suspension of proclamation has no legal and factual
basis; and (c) evidence of guilt on his part is patently inexistent for the purpose of
directing the suspension of his proclamation.
[79]
He urged the COMELEC Second
Division to conduct a full dress hearing on the main disqualification case should the
suspension be lifted.
[80]

(c) the Resolution of the COMELEC Second Division disqualifying the petitioner
is not based on substantial evidence.
The Resolution of the COMELEC Second Division cannot be considered to be
based on substantial evidence. It relied merely on affidavits of witnesses attached to
the petition for disqualification. As stressed, the COMELEC Second Division gave
credence to the affidavits without hearing the affiants. In reversing said Resolution, the
COMELEC en banc correctly observed:
Lacking evidence of Codilla, the Commission (Second Division) made its decisions
based mainly on the allegation of the petitioner and the supporting affidavits. With this
lopsided evidence at hand, the result was predictable. The Commission (Second
Division) had no choice. Codilla was disqualified.
[81]

Worse, the Resolution of the COMELEC Second Division, even without the
evidence coming from the petitioner, failed to prove the gravamen of the offense for
which he was charged.
[82]

Petitioner allegedly violated section 68 (a) of the Omnibus Election Code which
reads:
Section 68. Disqualifications.- Any candidate who, in action or protest in which he is a
party is declared by final decision of a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing official functions, xxx shall be
disqualified from continuing as candidate, or if he has been elected, from holding office
To be disqualified under the above-quoted provision, the following elements must
be proved: (a) the candidate, personally or through his instructions, must have given
money or other material consideration; and (b) the act of giving money or other material
consideration must be for the purpose of influencing, inducing, or corrupting the voters
or public officials performing electoral functions.
In the case at bar, the petition for disqualification alleged that (a) petitioner ordered
the extraction, hauling and distribution of gravel and sand, and (b) his purpose was to
induce and influence the voters of Kananga and Matag-ob, Leyte to vote for him.
Pertinent portion of the petition reads:
[T]he respondent [herein petitioner], within the election period, took advantage of his
current elective position as City Mayor of Ormoc City by illegally and unlawfully using
during the prohibited period, public equipments and vehicles belonging to and owned by
the City Government of Ormoc City in extracting, hauling and distributing gravel and
sand to the residents and voters of the Municipalities of Kananga and Matag-ob Leyte,
well within the territorial limits of the 4
th
Congressional District of Leyte, which acts were
executed without period, and clearly for the illicit purpose of unduly inducing or directly
corrupting various voters of Kananga and Matag-ob, within the 4
th
legislative district of
Leyte, for the precise purpose of inducing and influencing the voters/beneficiaries of
Kananga and Matag-ob, Leyte to cast their votes for said respondent.
[83]

The affidavits relied upon by the COMELEC Second Division failed to prove these
allegations. For instance, Cesar A. Laurente merely stated that he saw three (3) ten-
wheeler dump trucks and a Hyundai Payloader with the markings Ormoc City
Government extracting and hauling sand and gravel from the riverbed adjacent to the
property owned by the Codilla family.
[84]

Agripino C. Alferez and Rogelio T. Sulvera in their Joint Affidavit merely stated that
they saw white trucks owned by the City Government of Ormoc dumping gravel and
sand on the road of Purok 6, San Vicente, Matag-ob, Leyte. A payloader then scattered
the sand and gravel unloaded by the white trucks.
[85]

On the other hand, Danilo D. Maglasang, a temporary employee of the City
Government of Ormoc assigned to check and record the delivery of sand and gravel for
the different barangays in Ormoc, stated as follows:
3. That on April 20, 2001, I was ordered by Engr. Arnel Padayo, an employee of the
City Engineering Office, Ormoc City to go to Tagaytay, Kangga (sic), Leyte as that will
be the source of the sand and gravel. I inquired why we had to go to Kananga but Engr.
Padayao said that its not a problem as it was Mayor Eufrocino M. Codilla, Sr. who
ordered this and the property is owned by the family of Mayor Codilla. We were to
deliver sand and gravel to whoever requests from Mayor Codilla.
[86]

Similarly, the Affidavit of Basilio Bates cannot prove the offense charged against the
petitioner. He alleged that on April 18, 2001, a white truck with the marking City
Government of Ormoc came to his lot at Montebello, Kananga, Leyte and unloaded
mixed sand and that the driver of the truck told him to vote for Codilla as
a (sic) congressman during election.
[87]
His statement is hearsay. He has no personal
knowledge of the supposed order of the petitioner to distribute gravel and sand for the
purpose of inducing the voters to vote for him. The same could be said about the
affidavits of Randy T. Merin,
[88]
Alfredo C. De la Pea,
[89]
Miguel P. Pandac,
[90]
Paquito
Bregeldo, Cristeta Alferez , Glicerio Rios,
[91]
Romulo Alkuino, Sr.,
[92]
Abner Casas,
[93]
Rita
Trangia,
[94]
and Judith Erispe
[95]
attached to respondent Locsins Memorandum on the
Motion to Lift the Suspension of Proclamation.
Also valueless are the affidavits of other witnesses
[96]
of respondent Locsin, all
similarly worded, which alleged that the petitioner ordered the repair of the road in
Purok 6, Barangay San Vicente, Matag-ob, Leyte and the flattening of the area where
the cockfights were to be held. These allegations are extraneous to the charge in the
petition for disqualification. More importantly, these allegations do not constitute a
ground to disqualify the petitioner based on section 68 of the Omnibus Election Code.
To be sure, the petition for disqualification also ascribed other election offenses
against the petitioner, particularly section 261 of the Omnibus Election Code, viz:
Section 261. Prohibited Acts.- The following shall be guilty of an election offense:
(a) Vote-buying and vote-selling.- (1) Any person who gives, offers or promises money
or anything of value, gives or promises any office or employment, franchise or grant,
public or private, or make or offers to make an expenditure, directly or indirectly, or
cause an expenditure to be made to any person, association, corporation, entity or
community in order to induce anyone or the public in general, to vote for or against
any candidate or withhold his vote in the election, or to vote for or against any
aspirant for the nomination or choice of a candidate in a convention or similar
selection process of a political party.
x x x x x
x x x x
(o) Use of public funds, money deposited in trust, equipment, facilities owned or
controlled by the government for an election campaign.- Any person who uses
under any guise whatsoever directly or indirectly, xxx (3) any equipment, vehicle,
facility, apparatus, or paraphernalia owned by the government or by its political
subdivisions, agencies including government-owned or controlled corporations, or
by the Armed Forces of the Philippines for any election campaign or for any partisan
political activity x x x.
However, the jurisdiction of the COMELEC to disqualify candidates is limited to
those enumerated in section 68 of the Omnibus Election Code. All other election
offenses are beyond the ambit of COMELEC jurisdiction.
[97]
They are criminal and not
administrative in nature. Pursuant to sections 265 and 268 of the Omnibus Election
Code, the power of the COMELEC is confined to the conduct of preliminary
investigation on the alleged election offenses for the purpose of prosecuting the alleged
offenders before the regular courts of justice, viz:
Section 265. Prosecution.- The Commission shall, through its duly authorized legal
officers, have the exclusive power to conduct preliminary investigation of all election
offenses punishable under this Code, and to prosecute the same. The Commission may
avail of the assistance of other prosecuting arms of the government: Provided,
however, That in the event that the Commission fails to act on any complaint within four
months from his filing, the complainant may file the complaint with the office of the fiscal
or with the Ministry of Justice for proper investigation and prosecution, if warranted.
x x x x x
x x x x
Section 268. Jurisdiction.- The regional trial court shall have the exclusive original
jurisdiction to try and decide any criminal action or proceeding for violation of this Code,
except those relating to the offense of failure to register or failure to vote which shall be
under the jurisdictions of metropolitan or municipal trial courts. From the decision of the
courts, appeal will lie as in other criminal cases.
The COMELEC Second Division grievously erred when it decided the
disqualification case based on section 261 (a) and (o), and not on section 68 of the
Omnibus Election Code.
(d) Exclusion of the votes in favor of the petitioner and the proclamation of
respondent Locsin was done with undue haste.
The COMELEC Second Division ordered the exclusion of the votes cast in favor of
the petitioner, and the proclamation of the respondent Locsin, without affording the
petitioner the opportunity to challenge the same. In the morning of June 15, 2001, the
Provincial Board of Canvassers convened, and on the strength of the said Resolution
excluding the votes received by the petitioner, certified that respondent Locsin received
the highest number of votes. On this basis, respondent Locsin was proclaimed.
Records reveal that the petitioner received notice of the Resolution of the
COMELEC Second Division only through his counsel via a facsimile message in the
afternoon of June 15, 2001
[98]
when everything was already fait accompli. Undoubtedly,
he was not able to contest the issuance of the Certificate of Canvass and the
proclamation of respondent Locsin. This is plain and simple denial of due process.
The essence of due process is the opportunity to be heard. When a party is
deprived of that basic fairness, any decision by any tribunal in prejudice of his rights is
void.
Second. The votes cast in favor of the petitioner cannot be considered stray
and respondent cannot be validly proclaimed on that basis.
The Resolution of the COMELEC Second Division in SPA No. 01-208 contains two
dispositions: (1) it ruled that the petitioner was disqualified as a candidate for the
position of Congressman of the Fourth District of Leyte; and (2) it ordered the immediate
proclamation of the candidate who garnered the highest number of votes, to the
exclusion of the respondent [herein petitioner].
As previously stated, the disqualification of the petitioner is null and void for being
violative of due process and for want of substantial factual basis. Even assuming,
however, that the petitioner was validly disqualified, it is still improper for the COMELEC
Second Division to order the immediate exclusion of votes cast for the petitioner as
stray, and on this basis, proclaim the respondent as having garnered the next highest
number of votes.
(a) The order of disqualification is not yet final, hence, the votes cast in favor of
the petitioner cannot be considered stray.
Section 6 of R.A. No. 6646 and section 72 of the Omnibus Election Code require
a final judgment before the election for the votes of a disqualified candidate to be
considered stray. Hence, when a candidate has not yet been disqualified by final
judgment during the election day and was voted for, the votes cast in his favor cannot
be declared stray. To do so would amount to disenfranchising the electorate in whom
sovereignty resides.
[99]
For in voting for a candidate who has not been disqualified by
final judgment during the election day, the people voted for him bona fide, without any
intention to misapply their franchise, and in the honest belief that the candidate was
then qualified to be the person to whom they would entrust the exercise of the powers of
government.
[100]

This principle applies with greater force in the case at bar considering that
the petitioner has not been declared by final judgment to be disqualified not only
before but even after the elections. The Resolution of the COMELEC Second
Division disqualifying the petitioner did not attain finality, and hence, could not be
executed, because of the timely filing of a Motion for Reconsideration. Section 13, Rule
18 of the COMELEC Rules of Procedure on Finality of Decisions and Resolutions
reads:
Sec. 13. Finality of Decisions or Resolutions.- (a) In ordinary actions, special
proceedings, provisional remedies and special reliefs, a decision or resolution of the
Commission en banc shall become final and executory after thirty (30) days from its
promulgation.
(b) In Special Actions and Special Cases a decision or resolution of the Commission
en banc shall become final and executory after five (5) days in Special Actions
and Special Cases and after fifteen (15) days in all other proceedings, following
their promulgation.
(c) Unless a motion for reconsideration is seasonably filed, a decision or
resolution of a Division shall become final and executory after the lapse of
five (5) days in Special Actions and Special Cases and after fifteen (15)
days in all other actions or proceedings, following its promulgation.
(emphasis supplied)
In this wise, COMELEC Resolution No. 4116,
[101]
issued in relation to the finality of
resolutions or decisions in disqualification cases, provides:
This pertains to the finality of decisions or resolutions of the Commission en banc or
division, particularly on Special Actions (Disqualification Cases).
Special Action cases refer to the following:
(a) Petition to deny due course to a certificate of candidacy;
(b) Petition to declare a candidate as a nuisance candidate;
(c) Petition to disqualify a candidate; and
(d) Petition to postpone or suspend an election.
Considering the foregoing and in order to guide field officials on the finality of decisions
or resolutions on special action cases (disqualification cases) the Commission,
RESOLVES, as it is hereby RESOLVED, as follows:
(1) the decision or resolution of the En Banc of the Commission on
disqualification cases shall become final and executory after five (5) days
from its promulgation unless restrained by the Supreme Court;
(2) the decision or resolution of a Division on disqualification cases shall
become final and executory after the lapse of five (5) days unless a motion
for reconsideration is seasonably filed;
(3) where the ground for disqualification case is by reason of non-residence,
citizenship, violation of election laws and other analogous cases and on the
day of the election the resolution has not become final and executory the BEI
shall tally and count the votes for such disqualified candidate;
(4) the decision or resolution of the En Banc on nuisance candidates,
particularly whether the nuisance candidate has the same name as the bona
fide candidate shall be immediately executory;
(5) the decision or resolution of a DIVISION on nuisance candidate, particularly
where the nuisance candidate has the same name as the bona fide
candidate shall be immediately executory after the lapse of five (5) days
unless a motion for reconsideration is seasonably filed. In which case, the
votes cast shall not be considered stray but shall be counted and tallied for
the bona fide candidate.
All resolutions, orders and rules inconsistent herewith are hereby modified or repealed.
Considering the timely filing of a Motion for Reconsideration, the COMELEC
Second Division gravely abused its discretion in ordering the immediate disqualification
of the petitioner and ordering the exclusion of the votes cast in his favor. Section 2, Rule
19 of the COMELEC Rules of Procedure is very clear that a timely Motion for
Reconsideration shall suspend the execution or implementation of the resolution, viz:
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a
decision, resolution, order, or ruling of a Division shall be filed within five (5) days from
the promulgation thereof. Such motion, if not pro forma, suspends the execution or
implementation of the decision, resolution, order or ruling. (emphases supplied)
(b) Respondent Locsin, as a mere second placer, cannot be proclaimed.
More brazen is the proclamation of respondent Locsin which violates the settled
doctrine that the candidate who obtains the second highest number of votes may not be
proclaimed winner in case the winning candidate is disqualified.
[102]
In every election, the
peoples choice is the paramount consideration and their expressed will must at all
times be given effect. When the majority speaks and elects into office a candidate by
giving him the highest number of votes cast in the election for the office, no one can be
declared elected in his place.
[103]
In Domino v. COMELEC,
[104]
this Court ruled, viz:
It would be extremely repugnant to the basic concept of the constitutionally guaranteed
right to suffrage if a candidate who has not acquired the majority or plurality of votes is
proclaimed winner and imposed as representative of a constituency, the majority of
which have positively declared through their ballots that they do not choose him. To
simplistically assume that the second placer would have received that (sic) other votes
would be to substitute our judgment for the mind of the voters. He could not be
considered the first among the qualified candidates because in a field which excludes
the qualified candidate, the conditions would have substantially changed.
x x x x x
x x x x
The effect of a decision declaring a person ineligible to hold an office is only that the
election fails entirely, that 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 in favor of the person who has obtained a plurality of votes, and does not
entitle the candidate receiving the next highest number of votes to be declared elected.
In such case, the electors have failed to make a choice and the election is a nullity. To
allow the defeated and repudiated candidate to take over the elective position despite
his rejection by the electorate is to disenfranchise the electorate without any fault on
their part and to undermine the importance and meaning of democracy and the peoples
right to elect officials of their choice.
[105]

Respondent Locsin proffers a distinction between a disqualification based on
personal circumstances such as age, residence or citizenship and disqualification based
on election offenses. She contends that the election of candidates later disqualified
based on election offenses like those enumerated in section 68 of the Omnibus Election
Code should be invalidated because they violate the very essence of suffrage and as
such, the votes cast in his favor should not be considered.
[106]

This contention is without merit. In the recent case of Trinidad v. COMELEC,
[107]
this
Court ruled that the effect of a judgment disqualifying a candidate, after winning the
election, based on personal circumstances or section 68 of the Omnibus Election Code
is the same: the second placer could not take the place of the disqualified winner.
II
Whether the proclamation of respondent Locsin divested the COMELEC en
banc of jurisdiction to review its validity.
Respondent Locsin submits that the COMELEC en banc has no jurisdiction to annul
her proclamation. She maintains that the COMELEC en banc was been divested of
jurisdiction to review the validity of her proclamation because she has become a
member of the House of Representatives. Thus, she contends that the proper forum to
question her membership to the House of Representatives is the House of
Representative Electoral Tribunal (HRET).
We find no merit in these contentions.
First. The validity of the respondents proclamation was a core issue in the
Motion for Reconsideration seasonably filed by the petitioner.
In his timely Motion for Reconsideration with the COMELEC en banc, petitioner
argued that the COMELEC Second Division erred thus:
(1) in disqualifying petitioner on the basis solely of the dubious declaration of
the witnesses for respondent Locsin;
(2) in adopting in toto the allegations of the witnesses for respondent Locsin;
and
(3) in promulgating the resolution in violation of its own rules of
procedure and in directing therein the immediate proclamation of the
second highest vote getter.(emphases supplied)
In support of his third assignment of error, petitioner argued that the Second
Divisions directive for the immediate proclamation of the second highest vote-getter is
premature considering that the Resolution has yet to become final and
executory.
[108]
Clearly, the validity of respondent Locsins proclamation was made a
central issue in the Motion for Reconsideration seasonably filed by the petitioner.
Without doubt, the COMELEC en banc has the jurisdiction to rule on the issue.
The fact that the Petition for Nullity of Proclamation was filed directly with the
COMELEC en banc is of no moment. Even without said Petition, the COMELEC en
banc could still rule on the nullity of respondents proclamation because it was properly
raised in the Motion for Reconsideration.
Section 3, Article IX-C of the 1987 Constitution empowers the COMELEC en
banc to review, on motion for reconsideration, decisions or resolutions decided by a
division, viz:
Sec. 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 decision shall be
decided by the Commission en banc.
Pursuant to this Constitutional mandate, the COMELEC Rules of Procedure
provides:
Rule 19. Motions for Reconsideration.-
Section 1. Grounds for Motion for Reconsideration.- A motion for reconsideration may
be filed on the grounds that the evidence is insufficient to justify the decision, order or
ruling, or that the said decision, order or ruling is contrary to law.
Section 2. Period for filing Motion for Reconsideration.- A motion to reconsider a
decision, resolution, order, or ruling of a Division shall be filed within five (5) days from
the promulgation thereof. Such motion, if not pro forma, suspends the execution or
implementation of the decision, resolution, order or ruling.
Section 3. Form and Contents of Motion for Reconsideration.- The motion shall be
verified and shall point out specifically the findings or conclusions of the decision,
resolution, order or ruling which are not supported by the evidence or which are contrary
to law, making express reference to the testimonial or documentary evidence or to the
provisions of law alleged to be contrary to such findings or resolutions.
Section 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.
Section 5. How Motion for Reconsideration Disposed Of.- Upon the filing of a motion to
reconsider a decision, resolution, order or ruling of a Division, the Clerk of Court
concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding
Commissioner. The latter shall within two (2) days thereafter certify the case to the
Commission en banc.
Section 6. Duty of the Clerk of Court of the Commission to set Motion for Hearing.- The
Clerk of Court concerned shall calendar the motion for reconsideration for the resolution
of the Commission en banc within ten (10) days from the certification
thereof. (emphases supplied)
Since the petitioner seasonably filed a Motion for Reconsideration of the Order of
the Second Division suspending his proclamation and disqualifying him, the
COMELEC en banc was not divested of its jurisdiction to review the validity of the said
Order of the Second Division. The said Order of the Second Division was yet
unenforceable as it has not attained finality; the timely filing of the motion for
reconsideration suspends its execution. It cannot, thus, be used as the basis for the
assumption in office of the respondent as the duly elected Representative of the
4
th
legislative district of Leyte.
Second. It is the House of Representatives Electoral Tribunal (HRET) which
has no jurisdiction in the instant case.
Respondent contends that having been proclaimed and having taken oath as
representative of the 4
th
legislative district of Leyte, any question relative to her election
and eligibility should be brought before the HRET pursuant to section 17 of Article VI of
the 1987 Constitution.
[109]

We reject respondents contention.
(a) The issue on the validity of the Resolution of the COMELEC Second Division
has not yet been resolved by the COMELEC en banc.
To stress again, at the time of the proclamation of respondent Locsin, the validity of
the Resolution of the COMELEC Second Division was seasonably challenged by the
petitioner in his Motion for Reconsideration. The issue was still within the exclusive
jurisdiction of the COMELEC en banc to resolve. Hence, the HRET cannot assume
jurisdiction over the matter.
In Puzon vs. Cua,
[110]
even the HRET ruled that the doctrinal ruling that once a
proclamation has been made and a candidate-elect has assumed office, it is this
Tribunal that has jurisdiction over an election contest involving members of the House of
Representatives, could not have been immediately applicable due to the issue
regarding the validity of the very COMELEC pronouncements themselves. This is
because the HRET has no jurisdiction to review resolutions or decisions of the
COMELEC, whether issued by a division or en banc.
(b) The instant case does not involve the election and qualification of respondent
Locsin.
Respondent Locsin maintains that the proper recourse of the petitioner is to file a
petition for quo warranto with the HRET.
A petition for quo warranto may be filed only on the grounds of ineligibility and
disloyalty to the Republic of the Philippines.
[111]
In the case at bar, neither the eligibility of
the respondent Locsin nor her loyalty to the Republic of the Philippines is in
question. There is no issue that she was qualified to run, and if she won, to assume
office.
A petition for quo warranto in the HRET is directed against one who has been duly
elected and proclaimed for having obtained the highest number of votes but whose
eligibility is in question at the time of such proclamation. It is evident that respondent
Locsin cannot be the subject of quo warranto proceeding in the HRET. She lost the
elections to the petitioner by a wide margin. Her proclamation was a patent nullity. Her
premature assumption to office as Representative of the 4
th
legislative district of Leyte
was void from the beginning. It is the height of absurdity for the respondent, as a loser,
to tell petitioner Codilla, Sr., the winner, to unseat her via a quo warranto proceeding.
III
Whether it is the ministerial duty of the public respondents to
recognize petitioner Codilla, Sr. as the legally elected Representative
of the 4
th
legislative district of Leyte vice respondent Locsin.
Under Rule 65, section 3 of the 1997 Rules of Civil Procedure, any person may file
a verified petition for mandamus when any tribunal, corporation, board, officer or
person unlawfully neglects the performance of an act which the law specifically enjoins
as a duty resulting from an office, trust, or station, or unlawfully excludes another from
the use and enjoyment of a right or office to which such other is entitled, and there is no
other plain, speedy and adequate remedy in the ordinary course of law.
[112]
For a petition
for mandamus to prosper, it must be shown that the subject of the petition for
mandamus is a ministerial act or duty, and not purely discretionary on the part of the
board, officer or person, and that the petitioner has a well-defined, clear and certain
right to warrant the grant thereof.
The distinction between a ministerial and discretionary act is well delineated. A
purely ministerial act or duty is one which an officer or tribunal performs in a given state
of facts, in a prescribed manner, in obedience to the mandate of a legal authority,
without regard to or the exercise of his own judgment upon the propriety or impropriety
of the act done. If the law imposes a duty upon a public officer and gives him the right to
decide how or when the duty shall be performed, such duty is discretionary and not
ministerial. The duty is ministerial only when the discharge of the same requires neither
the exercise of official discretion or judgment.
[113]

In the case at bar, the administration of oath and the registration of the petitioner in
the Roll of Members of the House of Representatives representing the 4
th
legislative
district of Leyte is no longer a matter of discretion on the part of the public respondents.
The facts are settled and beyond dispute: petitioner garnered 71,350 votes as against
respondent Locsin who only got 53, 447 votes in the May 14, 2001 elections. The
COMELEC Second Division initially ordered the proclamation of respondent Locsin; on
Motion for Reconsideration the COMELEC en banc set aside the order of its Second
Division and ordered the proclamation of the petitioner. The Decision of the
COMELEC en banc has not been challenged before this Court by respondent Locsin
and said Decision has become final and executory.
In sum, the issue of who is the rightful Representative of the 4
th
legislative district of
Leyte has been finally settled by the COMELEC en banc, the constitutional body with
jurisdiction on the matter. The rule of law demands that its Decision be obeyed by
all officials of the land. There is no alternative to the rule of law except the reign
of chaos and confusion.
IN VIEW WHEREOF, the Petition for Mandamus is granted. Public Speaker of the
House of Representatives shall administer the oath of petitioner EUFROCINO M.
CODILLA, SR., as the duly-elected Representative of the 4
th
legislative district of Leyte.
Public respondent Secretary-General shall likewise register the name of the petitioner in
the Roll of Members of the House of Representatives after he has taken his oath of
office. This decision shall be immediately executory.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Vitug, Mendoza, Panganiban, Quisumbing, Ynares-
Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo,
Sr., and Azcuna, JJ.,concur.
Carpio, J., no part.



[1]
Records, SPA No. 01-208, vol. I, pp. 1-7.
[2]
Id., Annex A-1, p. 8.
[3]
Id., Annex A-2, p. 9.
[4]
Id., Annex A-4, p. 11.
[5]
Id., Annex A-3, p. 10.
[6]
Id., Annexes A-5 to A-6, pp. 12-13.
[7]
Id., Annexes B-1 to B-5, pp. 14-18.
[8]
Id., p. 23.
[9]
Id., p. 21.
[10]
Id., pp. 24-26. From the Records, it appears that respondent Locsin did not file a separate Motion for
Intervention.
[11]
Id., p. 26.
[12]
Id., Registry Receipt No. 78660, p. 30.
[13]
Id., pp. 36-40.
[14]
Id., p. 39.
[15]
Id., pp. 39-40.
[16]
Id., p. 234.
[17]
Id., pp. 74-79.
[18]
Id., Annex 1, pp. 80-81.
[19]
Id., Annex 1-A, p. 82.
[20]
Id., Annex 2, pp. 83-84.
[21]
Id., Annex 2-A, pp. 122-123.
[22]
Id., Annex 3, pp. 124-125.
[23]
Id., pp. 41-46.
[24]
Id., p. 47.
[25]
Id., p. 71.
[26]
Id., pp. 211-233.
[27]
Id., Annex 4, p. 281.
[28]
Id., Annex 6, p. 283.
[29]
Id., Annex 7, p. 284.
[30]
Id., Annex 8, pp. 285-286.
[31]
Id., Annex 9, p. 287.
[32]
Id., Annex 10, p. 288.
[33]
Id., Annex 11, p. 421.
[34]
Id., pp. 92-93.
[35]
Records, SPA No. 01-208, vol II, pp. 6-20.
[36]
Id., Annexes B and C, pp. 57-76.
[37]
Id., Annex D-1, p. 138.
[38]
Id., pp. 23-41.
[39]
Id., p. 87.
[40]
Id., pp. 174-192.
[41]
Records, SPC No. 01-324, pp. 1-14.
[42]
Records, SPA No. 01-208, vol. II, pp. 163-165.
[43]
Id., pp. 166-173. Annex A contains the Affidavits of Edgardo Apuya, Carmelita Manongsong, Danilo
Pingoy, Rolando Viovicente, and Samuel Antipuesto; Annex B includes the Affidavits of Samuel
Antipuesto, Pastora Capuyan and Feliciano Apuya; Annex C consists of Affidavits of Agripino
Beltran, Taciana Beltran, Samuel Antipuesto, Buenaventura Tasan, Rustico Alogbate, Pastora
Capuyan, Feliciano Apuya, Ellen Pingoy and Joel Ranolas; Annex D contains the Affidavits of
Noel Gomez and Jovito Laurente; and Annex E contains the Affidavit of Roman Domasin.
[44]
Records, SPC No. 01-324, pp. 108-115.
[45]
Id., pp. 43-163.
[46]
Id., pp. 212-219.
[47]
Petition, Annex B-2; Rollo, pp. 149-159.
[48]
Petition, Annexes B-4 and B-5; Rollo, pp. 162-179.
[49]
Rollo, pp. 40-44.
[50]
Petition, Annex B; Rollo, pp. 40-146.
[51]
Id., Annex B-1; id., pp. 147-148.
[52]
Rollo, pp. 323-337.
[53]
Memorandum dated August 31, 2001; Rollo, pp. 403-407.
[54]
Petition, Annex D-1; Rollo, pp. 216-225.
[55]
Id., Annex E; id., pp. 226-233.
[56]
Id., Annex A; id., p. 34.
[57]
Id., Annex A-5; id., p. 39.
[58]
Id., Annex F; id., pp. 234-242.
[59]
Id., Annex H-1; id., pp. 245-249.
[60]
Id., Annex G; id., p. 243.
[61]
Id., Annex I; id., pp. 250-255.
[62]
Id., Annex J; id., pp. 256-257.
[63]
Rollo, pp. 281-287.
[64]
Id., pp. 382-401.
[65]
The first Memorandum of Chief Counsel Palicte III dated July 22, 2001 was issued at the instance of
Secretary General Nazareno on the basis of a Memorandum issued by COMELEC Chairman
Benipayo ordering the investigation of the Provincial Board of Canvassers and the Provincial
Election Supervisor of Leyte in connection with the proclamation of respondent Locsin, id., pp.
408-412. A second Memorandum reiterating his previous opinion was issued on August 31, 2001
pursuant to a request made by respondent Locsin relative to the COMELEC En Banc Resolution
of August 29, 2001, id., pp. 403-407.
[66]
Rollo, pp. 288-348.
[67]
Resolution dated October 18, 2001, HRET Case No. 01-043; Annex 5, Comment of Respondent
Locsin; Rollo, pp.377-379.
[68]
Rollo, pp. 426-454.
[69]
Omnibus Election Code of the Philippines, December 3, 1985.
[70]
Rules Delegating to COMELEC Field Officials the Hearing and Reception of Evidence of
Disqualification Cases Filed in Connection with the May 14, 2001 National and Local Elections,
December 15, 2000.
[71]
See petitioners Answer, Records, SPA No. 01-208, vol. I, p. 74; Motion to Lift Suspension of
Proclamation, id., p. 42; Memorandum, id., p. 343; Motion for Reconsideration, id., vol. II, p. 24.
[72]
Records, SPA No. 01-208, vol. I, p. 26.
[73]
The Electoral Reform Law of 1987, January 5, 1988.
[74]
Cledera vs. Sarmiento, 39 SCRA 562 (1971); Andra v. CA, 60 SCRA 379 (1979);
Sembrano v. Ramirez, 166 SCRA 30 (1988).
[75]
Records, SPA No. 01-208, vol. I, p. 27.
[76]
Id., p. 30, Registry Receipt No. 78660.
[77]
Id., pp. 36-40.
[78]
Rollo, p. 89.
[79]
Records, SPA No. 01-208, vol. I, pp. 214-228.
[80]
Id., pp. 229-231.
[81]
Rollo, p. 89.
[82]
Id., pp. 95-102.
[83]
Records, SPA No. 01-208, vol. I, p. 3.
[84]
Id., p. 11.
[85]
Id., p. 10.
[86]
Id., p. 9.
[87]
Id., p. 8.
[88]
Id., p. 304.
[89]
Id., p. 306
[90]
Id., p. 307.
[91]
Id., p. 310.
[92]
Id., p. 312.
[93]
Id., p. 313.
[94]
Id., p. 318.
[95]
Id., p. 319.
[96]
See Affidavits of Arnel Surillo, id., p. 308; Tolentino Denoy, id., p. 314; Jerome Ychon, id., p. 315;
Benjamin Aparis, id., p. 316; and Rene Maurecio, id., p. 317.
[97]
Rule 34 of the COMELEC Rules of Procedure states: Section 1. Authority of the Commission to
Prosecute Election Offenses.- The Commission shall have the exclusive power to conduct
preliminary investigation of all election offenses punishable under the election laws and to
prosecute the same, except as may otherwise be provided by law.
[98]
Copy of the facsimile message was attached to the petitioners Motion for Reconsideration. See
Records, SPA No. 01-208, vol. II, p. 57-76.
[99]
Labo v. COMELEC, 176 SCRA 1 (1989).
[100]
Reyes v. COMELEC, 254 SCRA 514 (1996); Nolasco v. COMELEC, 275 SCRA 762 (1997).
[101]
May 7, 2001.
[102]
Labo v. COMELEC, supra; Abella v. COMELEC, 201 SCRA 253 (1991); Aquino v. COMELEC, supra.
[103]
Benito v. COMELEC, 235 SCRA 546 (1994).
[104]
310 SCRA 546 (1999).
[105]
Id., pp. 573-574 (citations omitted).
[106]
Records, SPA No. 01-208, vol. II, p. 87.
[107]
315 SCRA 175 (1999).
[108]
Records, SPA No. 01-208, vol. II, p. 37.
[109]
The Senate and the House of Representatives shall have an Electoral Tribunal which shall be the
sole judge of all contests relating to the election, returns and qualifications of their respective
members.
[110]
HRET Case No. 42, July 25, 1988, 1 HRET 32-33.
[111]
Rule 17, Revised Rules of HRET provides: Quo Warranto.- A verified petition for quo
warranto contesting the election of a Member of the House of Representatives shall be filed by
any candidate who has duly filed a certificate of candidacy and has been voted for the same
office, within ten (10) days after the proclamation of the winner.
[112]
Section 3 of Rule 65, 1997 Rules of Civil Procedure.
[113]
Samson v. Barrios, 63 Phil. 198 (1936); Lemi v. Valencia, 26 SCRA 203 (1968); Meralco Securities
Corp. v. Savellano, et al., 177 SCRA 804 (1982), as cited in I Regalado, Remedial Law
Compendium 714 (1997).

EN BANC

CELESTINO A. MARTINEZ III,
Petitioner,
G.R. No. 189034








- versus -
Present:

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.
HOUSE OF REPRESENTATIVES
ELECTORAL TRIBUNAL AND
BENHUR L. SALIMBANGON,
Respondents.

Promulgated:

January 11, 2010
x-----------------------------------------------------------------------------------------x

D E C I S I O N

VILLARAMA, JR., J.:

This petition for certiorari under Rule 65 seeks to nullify the Decision
[1]
dated
May 28, 2009 of the House of Representatives Electoral Tribunal in HRET Case No.
07-035 dismissing the election protest and declaring private respondent as the
duly elected Representative of the Fourth Legislative District of Cebu, and the
Resolution
[2]
dated July 30, 2009 denying petitioner's motion for reconsideration
thereof.
The Facts

In the May 14, 2007 elections, petitioner Martinez and private respondent
Salimbangon were among the candidates for Representative in the Fourth
Legislative District of Cebu Province. On March 29, 2007, Edilito C. Martinez, a
resident of Barangay Tambongon, Daan-Bantayan, Cebu, filed his certificate of
candidacy for the same position.

On April 3, 2007, Martinez filed a petition to declare Edilito C. Martinez a
nuisance candidate.
[3]
However, the Commission on Elections Second Division
issued its Resolution declaring Edilito C. Martinez a nuisance candidate only on
June 12, 2007 or almost one (1) month after the elections.

On July 9, 2007, Salimbangon was proclaimed winner in the congressional
elections for the Fourth Legislative District of Cebu on the basis of official results
showing that he garnered sixty-seven thousand two hundred seventy-seven
(67,277) votes as against Martinez who garnered sixty-seven thousand one
hundred seventy-three (67,173) votes, or a difference of one hundred four (104)
votes.

Martinez filed an Election Protest Ad Cautelam on July 18, 2007 and on July
26, 2007, the HRET granted his motion to convert the same into a Regular Protest
of all one thousand one hundred twenty-nine (1,129) precincts of the Fourth
Legislative District of Cebu.

The election protest is based on three hundred (300) ballots more or less
with only "MARTINEZ" or "C. MARTINEZ" written on the line for Representative
which the Board of Election Inspectors (BEI) did not count for Martinez on the
ground that there was another congressional candidate (Edilito C. Martinez) who
had the same surname. Martinez further alleged that he lost several thousand
votes as a result of incorrect appreciation of ballots not counted in his favor while
clearly marked ballots, groups of ballots which appeared to have been prepared
by one (1) person, individual ballots which appeared to have been prepared by
two (2) or more persons, and fake and unofficial ballots were read and counted in
favor of Salimbangon. He also claimed that the votes reflected in the election
returns were unlawfully increased in favor of Salimbangon while votes in his favor
were unlawfully decreased.
[4]


Salimbangon filed his Answer with Counter-Protest stating that the Minutes
of Voting (MOV) inside the ballot boxes in all the protested precincts contain no
recorded objections regarding straying of votes claimed by Martinez, and that it
was very seldom, if at all, that there were ballots with only "MARTINEZ" or "C.
MARTINEZ" written on the line for Representative. He counter-protested 954
precincts on grounds of coercion/intimidation and duress; massive vote-buying;
"lansadera"; misreading/miscounting/misappreciation of votes; and other
electoral anomalies and irregularities.

During the revision, ballots with only "MARTINEZ" or "C. MARTINEZ" written
on the line for Representative were not counted and temporarily classified as
stray. These comprise majority of the 9,831 stray ballots claimed by Martinez.
[5]


HRET Ruling

In its Decision dated May 28, 2009, the HRET resolved each of the claims and
objections respectively raised by protestant and protestee applying the rules for
appreciation of ballots. The Tribunal recognized as most crucial the issue
of whether or not ballots with only "MARTINEZ" or "C. MARTINEZ" written on the
line for Representative should be counted in favor of Martinez. Thus, the election
protest "will rise or fall on how the Tribunal [appreciates said] ballots."
[6]


Ruling on the issue, the HRET sustained the BEI in considering the ballots as
stray in accordance with Sec. 211 (1) of the Omnibus Election Code which
provides:

"Where only the first name of a candidate or only his surname is written, the
vote for such candidate is valid, if there is no other candidate with the same first name
or surname for the same office."
[7]
[EMPHASIS SUPPLIED.]

Since the name of Edilito C. Martinez was still included in the official list of
candidates on election day (May 14, 2007), the HRET held that five thousand four
hundred one (5,401) ballots with "MARTINEZ" or "C. MARTINEZ" only written on
the line for Representative were properly denied on the ground that there was
no way of determining the real intention of the voter. These ballots were
included in the 7,544 ballots denied as votes for Martinez in 961 precincts.
[8]


Commiserating with Martinez on the delayed resolution of SPA Case No.
07-133 (PES), the HRET stated:

"We sympathize to (sic) the protestant that he is the victim of the inaction of the
Comelec in failing to decide the petition to disqualify Edilito C. Martinez as nuisance
candidate on or before the May 14, 2007 elections. After all, it appears that the latter
did not even lift a finger to oppose the petition for his declaration as nuisance candidate
and that per its decision rendered only twenty-nine (29) days after the May 14, 2007
elections, Edilito C. Martinez was indeed a nuisance candidate.

"As it is, the delay committed by the Comelec in deciding the petition to disqualify
Edilito C. Martinez as nuisance candidate on or before May 14, 2007 election did not
only cause injustice to herein protestant but worst, had resulted to (sic) the
disenfranchisement of five thousand four hundred one (5,401) electorates whose votes
could have changed the number of votes garnered by the parties herein if not changed
altogether the outcome of the election itself."
[9]


The final overall results of recount and appreciation of ballots, election
documents and other evidence in the entire 1,129 precincts as determined by the
HRET are as follows :
[10]


Overall Fourth District of Cebu Votes
PROTESTANT PROTESTEE
1] Votes per physical count* in 961
precincts where there was ballot
appreciation


57,758


57,132
2] Votes in 12 precincts** without
ballots found during revision (based
on election returns)


998


660
3] Votes per election returns in 156
precincts in which several spurious
ballots were placed after elections,
counting and/or canvassing of votes



9,937



7,815
68,693 65,607

Less: Objected ballots rejected*** 4,333 860
Add: Claimed ballots admitted*** 2,287 2,348
Unclaimed ballots admitted*** 8 11
Restored Ballots 2
Total Votes in the Contested
Precincts After Appreciation of
Evidence


66,655


67,108
PLURALITY OF PROTESTEE'S
VOTES



453

* Taken from Revision Reports
** Namely Precinct Nos. 51A, Daan-Bantayan, 40A, 56A, 79A, all of Bantayan,
15C, 19D, 66B/67A, 88A, 105A, all of Bogo, 40A/41A, 70A/71A, all of
Medellin, 30A, Sta. Fe.
*** During appreciation of ballots in 961 precincts.

On the basis of the foregoing, the HRET dismissed the election protest,
affirmed the proclamation of Salimbangon and declared him to be the duly
elected Representative of the Fourth Legislative District of Cebu, having won by a
plurality margin of 453 votes.

Martinez moved for reconsideration of the Decision, but the HRET denied it
by Resolution dated July 30, 2009.
[11]


The Petition

Petitioner alleges that the HRET gravely abused its discretion when it failed
to credit the "MARTINEZ" or "C. MARTINEZ" votes in his favor despite the finality
of the COMELEC resolution declaring Edilito C. Martinez a nuisance candidate.
Petitioner argues that the Decision disenfranchised 5,401 voters when it ruled
that said votes cannot be counted as votes for him since "there is no way of
determining the real intention of the voter", in utter disregard of the mandate of
Art. VIII, Sec. 14 of the Constitution. He maintains that there is no clear and good
reason to justify the rejection of those 5,401 ballots, and points out that at the
time private respondent was proclaimed by the Board of Canvassers, only 104
votes separated private respondent from him (private respondent was credited
with 67,277 votes as against 67,173 votes of petitioner, while nuisance candidate
Edilito C. Martinez got a measly 363 votes.)
[12]


Petitioner further alleges that the HRET invalidated ballots for him without
stating the legal and factual bases therefor, and on grounds other than the
objections raised by private respondent. He contends that the HRET erred in
concluding that the ruling in Bautista v. Commission on Elections
[13]
cannot be
applied in view of circumstances which supposedly distinguish the present case
from Bautista. Finally, petitioner cites the dissenting opinion of the Honorable
Associate Justice Antonio Eduardo B. Nachura who disagreed with the majority
ruling and posited that the final declaration by COMELEC that Edilito C. Martinez
was a nuisance candidate and the cancellation of his certificate of candidacy
should be deemed effective as of the day of the election.
[14]


In his Comment, private respondent assails the apparent desire of petitioner
for this Court to review the physical appreciation of ballots conducted by the
HRET when he assigned as issues the alleged erroneous invalidation by the HRET
of petitioner's ballots which were ruled as written by two (2) persons, and when
he even appreciated ballots that were declared by the HRET as marked ballots.
Private respondent details the mostly post-election anomalies and irregularities,
particularly in Bogo City, perpetrated by the petitioner as found by the HRET such
as tampering of election returns and statement of votes and vote
padding/tampering.

As to the "MARTINEZ" and "C. MARTINEZ" ballots, private respondent asserts
that the HRET correctly refused to credit petitioner with these votes, stressing
that there were admittedly three (3) candidates for the position of Representative
for the Fourth Legislative District of Cebu as of May 14, 2007. Not a single voter
in the district knew of any nuisance congressional candidate on election
day. Private respondent argues that it would be illogical and most unfair to count
the said ballots in favor of petitioner as it is erroneous to base the voter's intent
on the supervening circumstance which was inexistent on the date the ballot was
accomplished and cast. The HRET likewise did not err in holding that
the Bautista ruling is inapplicable, there being no announced declaration yet of
one (1) of the candidates as nuisance candidate when the voters cast their ballots
on election day.
The Issues

What then is the legal effect of declaring a nuisance candidate as such in a
final judgment after the elections? Should ballots containing only the similar
surname of two (2) candidates be considered as stray votes or counted in favor of
the bona fide candidate?

Our Ruling

The Court finds the petition meritorious.

Section 69 of the Omnibus Election Code provides:

"Section 69. Nuisance candidates. -- The Commission may motu proprio or upon
a verified petition of an interested party, refuse to give due course to or cancel a
certificate of candidacy if it is shown that said certificate has been filed to put the
election process in mockery or disrepute or to cause confusion among the voters by the
similarity of the names of the registered candidates or by other circumstances or acts
which clearly demonstrate that the candidate has no bona fide intention to run for the
office for which the certificate of candidacy has been filed and thus prevent a faithful
determination of the true will of the electorate."


Republic Act No. 6646, otherwise known as The Electoral Reforms Law of
1987" provides in Section 5 thereof:

"SEC. 5. Procedure in Cases of Nuisance Candidates. --

(a) A verified petition to declare a duly registered candidate as a nuisance
candidate under Section 69 of Batas Pambansa Blg. 881 shall be filed personally or
through duly authorized representative with the Commission by any registered
candidate for the same office within five (5) days from the last day for the filing of
certificates of candidacy. Filing by mail shall not be allowed.

"(b) Within three (3) days from the filing of the petition, the Commission shall
issue summons to the respondent candidate together with a copy of the petition and its
enclosures, if any.

"(c) The respondent shall be given three (3) days from receipt of the summons
within which to file his verified answer (not a motion to dismiss) to the petition, serving
copy thereof upon the petitioner. Grounds for a motion to dismiss may be raised as
affirmative defenses.

"(d) The Commission may designate any of its officials who are lawyers to hear
the case and receive evidence. The proceeding shall be summary in nature. In lieu of
oral testimonies, the parties may be required to submit position papers together with
affidavits or counter-affidavits and other documentary evidence. The hearing officer
shall immediately submit to the Commission his findings, reports, and
recommendations within five (5) days from the completion of such submission of
evidence. The Commission shall render its decision within five (5) days from receipt
thereof.

"(e) The decision, order, or ruling of the Commission shall, after five (5) days from
receipt of a copy thereof by the parties, be final and executory unless stayed by the
Supreme Court.

"(f) The Commission shall within twenty-four hours, through the fastest available
means, disseminate its decision or the decision of the Supreme Court to the city or
municipal election registrars, boards of election inspectors and the general public in the
political subdivision concerned." [EMPHASIS SUPPLIED.]


By their very nature, proceedings in cases of nuisance candidates require
prompt disposition. The declaration of a duly registered candidate as nuisance
candidate results in the cancellation of his certificate of candidacy. The law
mandates the Commission and the courts to give priority to cases of
disqualification to the end that a final decision shall be rendered not later than
seven days before the election in which the disqualification is sought.
[15]
In many
instances, however, proceedings against nuisance candidates remained pending
and undecided until election day and even after canvassing of votes had been
completed.

Here, petitioner sought to declare Edilito C. Martinez as a nuisance
candidate immediately after the latter filed his certificate of candidacy as an
independent candidate and long before the May 14, 2007 elections. Petitioner
averred that Edilito C. Martinez who was a driver of a motorcycle for hire, locally
known as "habal-habal", did not own any real property in his municipality, had
not filed his income tax return for the past years, and being an independent
candidate did not have any political machinery to propel his candidacy nor did he
have political supporters to help him in his campaign. Petitioner claimed that
Edilito C. Martinez after the filing of his certificate of candidacy, was never heard
of again and neither did he start an electoral campaign. Given such lack of bona
fide intention of Edilito C. Martinez to run for the office for which he filed a
certificate of candidacy, petitioner contended that his candidacy would just cause
confusion among the voters by the similarity of their surnames, considering that
petitioner was undeniably the frontrunner in the congressional district in the
Fourth Legislative District of Cebu as his mother, Rep. Clavel A. Martinez, was the
incumbent Representative of the district.
[16]


The COMELEC's Second Division granted the petition and declared Edilito C.
Martinez as a nuisance candidate. It noted that the failure of said candidate to
answer and deny the accusations against him clearly disclosed the fact that he
had no bona fide intention to run for public office. Thus, it concluded that his
only purpose for filing his certificate of candidacy was to put the election process
into mockery and cause confusion among the voters by the similarity of his
surname with that of petitioner.
[17]


No motion for reconsideration was filed by Edilito C. Martinez and neither
did he appeal before this Court the resolution declaring him a nuisance
candidate. Said decision had thus become final and executory after five (5) days
from its promulgation in accordance with the COMELEC Rules of
Procedure.
[18]
But having come too late, the decision was an empty victory for
petitioner who lost to private respondent by a slim margin of 104
votes. In his election protest, petitioner sought to have ballots with only
"MARTINEZ" or "C. MARTINEZ" written on the line for Representative counted
in his favor. The HRET, however, considered such ballots numbering 5,401 as
stray and rejected petitioner's argument that the ruling in Bautista v. Comelec
(supra) is applicable in this case.

Bautista involves a mayoralty candidate (Cipriano "Efren" Bautista) during
the May 11, 1998 elections who filed a petition to declare as nuisance candidate
Edwin "Efren" Bautista, who filed a certificate of candidacy for the same position
at the last minute. The COMELEC granted the petition, declared Edwin Bautista a
nuisance candidate and ordered the cancellation of his certificate of
candidacy. Consequently, Edwin Bautista's name was not included in the official
list of candidates for the position of mayor of Navotas City and copies of the list
were distributed to the boards of election inspectors (BEI). On May 8, 1998,
Edwin filed a motion for reconsideration and as a result, the Election Officer of
Navotas issued a directive to the BEI to include the name of Edwin Bautista in the
certified list of candidates, only to recall said order in the afternoon. In view of
the conflicting directives, counsel for petitioner requested the COMELEC that
instructions be given to the BEI to tally separately the votes for "EFREN
BAUTISTA", "EFREN", "E. BAUTISTA" and "BAUTISTA."

On May 13, 1998, the COMELEC denied Edwin Bautista's motion for
reconsideration. When the canvass of the election returns was commenced, the
Municipal Board of Canvassers refused to canvass as part of the valid votes of
petitioner the separate tallies of ballots on which were written "EFREN
BAUTISTA," "EFREN," "E. BAUTISTA" and "BAUTISTA." Petitioner then filed with
the COMELEC a petition to declare illegal the proceedings of the Municipal Board
of Canvassers. Meanwhile Edwin Bautista filed a petition for certiorari with this
Court assailing the actions of COMELEC declaring him a nuisance candidate and
ordering the cancellation of his certificate of candidacy. The Court dismissed said
petition finding no grave abuse of discretion committed by the COMELEC and
subsequently also denied with finality the motion for reconsideration filed by
Edwin Bautista.

As to the petition to declare as illegal the proceedings of the Municipal
Board of Canvassers for its refusal to include the stray votes in the separate tally
sheet, the COMELEC dismissed the same, citing Sec. 211 (4)
[19]
of the Omnibus
Election Code. Petitioner Bautista elevated the case to the Supreme Court which
ruled in his favor, thus:

"At the outset and initially setting aside all the ramifications of the substantive
issue of the instant petition, the primordial concern of the Court is to verify whether or
not on the day of the election, there was only one 'Efren Bautista' as a validly registered
candidate as far as the electorate was concerned.

"x x x

"Edwin Bautista moved for reconsideration on May 8, 1998. Unfortunately, said
motion was not resolved as of election day. Technically, the April 30, 1998 decision was
not yet final as of May 11, 1998, and this technicality created serious problems on
election day.

x x x

"An analysis of the foregoing incidents shows that the separate tallies were made
to remedy any prejudice that may be caused by the inclusion of a potential nuisance
candidate in the Navotas mayoralty race. Such inclusion was brought about by
technicality, specifically Edwin Bautista's filing of a motion for reconsideration, which
prevented the April 30, 1998 resolution disqualifying him from becoming final at that
time.

"Ideally, the matter should have been finally resolved prior to election day. Its
pendency on election day exposed petitioner to the evils brought about by the
inclusion of a then potential, later shown in reality to be nuisance candidate. We have
ruled that a nuisance candidate is one whose certificate of candidacy is presented and
filed to cause confusion among the electorate by the similarity of the names of the
registered candidate or by other names which demonstrate that the candidate has
no bona fide intention to run for the office for which the certificate of candidacy has
been filed and thus prevent a faithful determination of the true will of the electorate
(Fernandez vs. Fernandez, 36 SCRA 1 [1970]).

"It must be emphasized that the instant case involves a ground for disqualification
which clearly affects the voters' will and causes confusion that frustrates the same. This
is precisely what election laws are trying to protect. They give effect to, rather than
frustrate, the will of the voter. Thus, extreme caution should be observed before any
ballot is invalidated. Further, in the appreciation of ballots, doubts are resolved in favor
of their validity. (Silverio vs. Castro, 19 SCRA 521 [1967]).

x x x x

"As discussed in the COMELEC's April 30, 1998 decision, in accordance with
Section 69, Edwin Bautista was found to be a nuisance candidate. First and foremost, he
was running under the name of Edwin 'Efren' Bautista, when it had been established
that he was really known as 'Boboy' or 'Boboy Tarugo.' Second, the following
circumstances saliently demonstrate that he had no bona fide intention of running for
the office for which he filed his certificate of candidacy: He is said to be engaged in a
'buy and sell' business, but he has no license therefor. He declared that he had a
monthly income of P10,000.00 but with expenses totalling P9,000.00. He does not own
any real property. He did not file his income tax return for the years 1995 and 1996 and
when asked why, he said he did not have any net income and that he was only earning
enough to defray household expenses. He even violated COMELEC rules since he failed
to submit the names of individuals who paid for his campaign materials as well as the
printing press he dealt with. He did not have a political line-up and had no funds to
support his campaign expenses. He merely depended on friends whose names he did
not submit to the COMELEC. And as straightforwardly found by the COMELEC, he 'has
not demonstrated any accomplishment/achievement in his twenty-six (26) years of
existence as a person that would surely attract the electorate to choose him as their
representative in government.'

"In contrast, it was shown that petitioner had previously held under his name
Cipriano and appellation, 'Efren' Bautista, various elective positions, namely: Barangay
Captain of Navotas in 1962, Municipal Councilor of Navotas in 1970, and Vice-Mayor of
Navotas in 1980. He is a duly registered Naval Architect and Marine Engineer, and a
member of various civic organizations such as the Rotary Club of Navotas and the
Philippine Jaycees.
"It seems obvious to us that the votes separately tallied are not really stray
votes. Then COMELEC Chairman Bernardo P. Pardo himself, now a respected member
of the Court, in his May 14, 1998 Memorandum, allowed the segregation of the votes
for "Bautista," "Efren," and "Efren Bautista," and "E. Bautista" into a separate
improvised tally, for the purpose of later counting the votes. In fine, the COMELEC itself
validated the separate tallies since they were meant to be used in the canvassing later
on to the actual number of votes cast. These separate tallies actually made the will of
the electorate determinable despite the apparent confusion caused by a
potential nuisance candidate. What remained unsaid by the COMELEC Chairman was
the fact that as early as May 13, 1998, the COMELEC had already spoken and stated its
final position on the issue of whether or not Edwin Bautista is a nuisance candidate. It
had already denied Edwin's motion for reconsideration in its May 13, 1998 Order x x x
"x x x x
"This important detail only shows that as of May 14, 1998, when Chairman Pardo
issued the aforestated Memorandum, Edwin Bautista had already been finally
declared as a nuisancecandidate by the COMELEC. And when Edwin Bautista elevated
the matter to this Court, we upheld such declaration. How then can we consider valid
the votes for Edwin Bautista whom we finally ruled as disqualified from the 1998
Navotas mayoralty race? That is like saying one thing and doing another. These are
two incompatible acts the contrariety and inconsistency of which are all too
obvious."
[20]
[EMPHASIS SUPPLIED.]


Petitioner now invokes this Court's pronouncement in Bautista to the effect
that votes indicating only the surname of two (2) candidates should not be
considered as stray but counted in favor of the bona fide candidate after the
other candidate with a similar surname was declared a nuisance candidate. In
refusing to apply the ruling in Bautista, the HRET said that the factual
circumstances in said case are different, thus:
"Protestant strongly asserts that the 'MARTINEZ' or 'C. MARTINEZ' only votes be
counted in his favor invoking the ruling in the case of Bautista vs. Comelec, G.R. No.
133840, November 13, 1998 (298 SCRA 480) where the Supreme Court held that the
final and conclusive ruling on the declaration of a nuisance candidate retroacts on the
day of the election.
"We disagree.
"While the Bautista vs. Comelec case also involves a candidate declared as
nuisance by the Comelec, the case herein is not on all fours with it. x x x
"x x x
"It is clear from the foregoing facts of the Bautista case that the nuisance
candidate, Edwin Bautista, was declared as such on April 30, 1998, eleven (11) days
before the May 11, 1998 elections. Although the decision was not yet final on Election
Day because of a Motion for Reconsideration that Edwin Bautista had filed on May 8,
1998, nevertheless, his name was not included in the list of candidates for the position
of Mayor for Navotas. This is not the situation in the present case for Edilito C.
Martinez was not yet declared disqualified during the May 14, 2007 elections. There
were, therefore, two (2) congressional candidates on the day of the election with
"MARTINEZ" as surname, Celestino A. Martinez and Edilito C. Martinez.
"More importantly, in the Bautista case, while the Comelec's decision declaring
Edwin Bautista a nuisance candidate had not yet attained finality on election day, May
11, 1998, the voters of Navotas were informed of such disqualification by virtue of
newspaper releases and other forms of notification. The voters in said case had
constructive as well as actual knowledge of the action of the Comelec delisting Edwin
Bautista as a candidate for mayor. This is not so in the present case for Edilito C.
Martinez was not yet disqualified as nuisance candidate during the May 14, 2007
elections. There were no newspaper releases and other forms of notification to the
voters of the Fourth District of Cebu on or before May 14, 2007 elections that Edilito
C. Martinez was disqualified as a nuisance candidate."
[21]
[EMPHASIS SUPPLIED.]

It is clear that Bautista is anchored on the factual determination that the
COMELEC resolution declaring Edwin Bautista a nuisance candidate was already
final since his motion for reconsideration was already denied by the Commission
when canvassing of the votes started. Hence, the segregated and separately
tallied votes containing only the similar first names/nicknames and surnames of
the two (2) candidates were considered as not really stray votes. We held that
the separate tallies validated by the COMELEC actually made the will of the
electorate determinable despite the apparent confusion caused by a nuisance
candidate.

In the case at bar, there was no segregation or separate tally of votes for
petitioner. Unlike in Bautista, there was simply no opportunity for petitioner to
request the segregation and separate tally of expected ballots containing only
the surname "MARTINEZ" as the resolution granting his petition was
promulgated only a month later. The HRET, while not closing its eyes to the
prejudice caused to petitioner by COMELEC's inaction and delay, as well as the
disenfranchisement of the 5,401 voters, refused to credit him with those votes on
the ground that there was no way of determining the real intention of the voter.

We disagree.

The purpose of an election protest is to ascertain whether the candidate
proclaimed by the board of canvassers is the lawful choice of the people. What is
sought is the correction of the canvass of votes, which was the basis of
proclamation of the winning candidate. Election contests, therefore, involve the
adjudication not only of private and pecuniary interests of rival candidates, but
also of paramount public interest considering the need to dispel uncertainty over
the real choice of the electorate.
[22]


In controversies pertaining to nuisance candidates as in the case at bar, the
law contemplates the likelihood of confusion which the similarity of surnames of
two (2) candidates may generate. A nuisance candidate is thus defined as one
who, based on the attendant circumstances, has no bona fide intention to run for
the office for which the certificate of candidacy has been filed, his sole purpose
being the reduction of the votes of a strong candidate, upon the expectation that
ballots with only the surname of such candidate will be considered stray and not
counted for either of them.

In elections for national positions such as President, Vice-President and
Senator, the sheer logistical challenge posed by nuisance candidates gives
compelling reason for the Commission to exercise its authority to eliminate
nuisance candidates who obviously have no financial capacity or serious intention
to mount a nationwide campaign. Thus we explained in Pamatong v.
Commission on Elections
[23]
:

"The rationale behind the prohibition against nuisance candidates and the
disqualification of candidates who have not evinced a bona fide intention to run for
office is easy to divine. The State has a compelling interest to ensure that its electoral
exercises are rational, objective, and orderly. Towards this end, the State takes into
account the practical considerations in conducting elections. Inevitably, the greater the
number of candidates, the greater the opportunities for logistical confusion, not to
mention the increased allocation of time and resources in preparation for the
election. These practical difficulties should, of course, never exempt the State from the
conduct of a mandated electoral exercise. At the same time, remedial actions should be
available to alleviate these logistical hardships, whenever necessary and
proper. Ultimately, a disorderly election is not merely a textbook example of
inefficiency, but a rot that erodes faith in our democratic institutions. As the United
States Supreme Court held:

[T]here is surely an important state interest in requiring some
preliminary showing of a significant modicum of support before printing
the name of a political organization and its candidates on the ballot -- the
interest, if no other, in avoiding confusion, deception and even
frustration of the democratic [process].

"x x x x

"There is a need to limit the number of candidates especially in the
case of candidates for national positions because the election process
becomes a mockery even if those who cannot clearly wage a national
campaign are allowed to run. Their names would have to be printed in
the Certified List of Candidates, Voters Information Sheet and the Official
Ballots. These would entail additional costs to the government. x x x

"The preparation of ballots is but one aspect that would be affected by allowance
of "nuisance candidates" to run in the elections. Our election laws provide various
entitlements for candidates for public office, such as watchers in every polling place,
watchers in the board of canvassers, or even the receipt of electoral
contributions. Moreover, there are election rules and regulations the formulations of
which are dependent on the number of candidates in a given election.

"Given these considerations, the ignominious nature of a nuisance candidacy
becomes even more galling. The organization of an election with bona fide candidates
standing is onerous enough. To add into the mix candidates with no serious intentions
or capabilities to run a viable campaign would actually impair the electoral process. x x x

"x x x"
[24]
[EMPHASIS SUPPLIED]


Given the realities of elections in our country and particularly contests
involving local positions, what emerges as the paramount concern in barring
nuisance candidates from participating in the electoral exercise is the avoidance
of confusion and frustration of the democratic process by preventing a faithful
determination of the true will of the electorate, more than the practical
considerations mentioned in Pamatong. A report published by the Philippine
Center for Investigative Journalism in connection with the May 11, 1998 elections
indicated that the tactic of fielding nuisance candidates with the same surnames
as leading contenders had become one (1) "dirty trick" practiced in at least 18
parts of the country. The success of this clever scheme by political rivals or
operators has been attributed to the last-minute disqualification of nuisance
candidates by the Commission, notably its "slow-moving" decision-making.
[25]


As illustrated in Bautista, the pendency of proceedings against a nuisance
candidate on election day inevitably exposes the bona fide candidate to the
confusion over the similarity of names that affects the voter's will and frustrates
the same. It may be that the factual scenario in Bautista is not exactly the same
as in this case, mainly because the Comelec resolution declaring Edwin Bautista a
nuisance candidate was issued before and not after the elections, with the
electorate having been informed thereof through newspaper releases and other
forms of notification on the day of election. Undeniably, however, the adverse
effect on the voter's will was similarly present in this case, if not worse,
considering the substantial number of ballots with only "MARTINEZ" or "C.
MARTINEZ" written on the line for Representative - over five thousand -
which have been declared as stray votes, the invalidated ballots being more than
sufficient to overcome private respondent's lead of only 453 votes after the
recount.

Bautista upheld the basic rule that the primordial objective of election laws
is to give effect to, rather than frustrate, the will of the voter. The inclusion of
nuisance candidates turns the electoral exercise into an uneven playing field
where the bona fide candidate is faced with the prospect of having a significant
number of votes cast for him invalidated as stray votes by the mere presence of
another candidate with a similar surname. Any delay on the part of the
COMELEC increases the probability of votes lost in this manner. While political
campaigners try to minimize stray votes by advising the electorate to write the
full name of their candidate on the ballot, still, election woes brought by nuisance
candidates persist.

The Court will not speculate on whether the new automated voting system
to be implemented in the May 2010 elections will lessen the possibility of
confusion over the names of candidates. What needs to be stressed at this point
is the apparent failure of the HRET to give weight to relevant circumstances that
make the will of the electoratedeterminable, following the precedent
in Bautista. These can be gleaned from the findings of the Commission on the
personal circumstances of Edilito C. Martinez clearly indicating lack of serious
intent to run for the position for which he filed his certificate of candidacy,
foremost of which is his sudden absence after such filing. In contrast to petitioner
who is a well-known politician, a former municipal mayor for three (3) terms and
a strong contender for the position of Representative of the Fourth Legislative
District of Cebu (then occupied by his mother), it seems too obvious that Edilito
C. Martinez was far from the voters' consciousness as he did not even campaign
nor formally launch his candidacy. The HRET likewise failed to mention the total
number of votes actually cast for Edilito C. Martinez, which can support
petitioner's contention that the "MARTINEZ" and "C. MARTINEZ" votes could not
have been intended as votes for Edilito C. Martinez.

Petitioner should not be prejudiced by COMELEC's inefficiency and
lethargy. Nor should the absence of objection over straying of votes during the
actual counting bar petitioner from raising the issue in his election protest. The
evidence clearly shows that Edilito C. Martinez, who did not even bother to file
an answer and simply disappeared after filing his certificate of candidacy, was an
unknown in politics within the district, a "habal-habal" driver who had neither
the financial resources nor political support to sustain his candidacy. The
similarity of his surname with that of petitioner was meant to cause confusion
among the voters and spoil petitioner's chances of winning the congressional race
for the Fourth Legislative District of Cebu. As it turned out, there were thousands
of ballots with only "MARTINEZ" or "C. MARTINEZ" written on the line for
Representative, votes considered stray by the BEI and not counted in favor of
petitioner, and which the HRET affirmed to be invalid votes. Had the Commission
timely resolved the petition to declare Edilito C. Martinez a nuisance candidate,
all such ballots with "MARTINEZ" or "C. MARTINEZ" would have been counted in
favor of petitioner and not considered stray, pursuant to COMELEC Resolution
No. 4116,
[26]
issued in relation to the finality of resolutions or decisions in
disqualification cases, which provides:

This pertains to the finality of decisions or resolutions of the Commission en
banc or division, particularly on Special Actions (Disqualification Cases).

Special Action cases refer to the following:
(a) Petition to deny due course to a certificate of candidacy;
(b) Petition to declare a candidate as a nuisance candidate;
(c) Petition to disqualify a candidate; and
(d) Petition to postpone or suspend an election.

Considering the foregoing and in order to guide field officials on the finality of
decisions or resolutions on special action cases (disqualification cases) the Commission,
RESOLVES, as it is hereby RESOLVED, as follows:

(1) the decision or resolution of the En Banc of the Commission on disqualification
cases shall become final and executory after five (5) days from its promulgation unless
restrained by the Supreme Court;

x x x

(4) the decision or resolution of the En Banc on nuisance candidates, particularly
whether the nuisance candidate has the same name as the bona fide candidate shall be
immediately executory;

(5) the decision or resolution of a DIVISION on nuisance candidate, particularly
where the nuisance candidate has the same name as the bona fide candidate shall be
immediately executory after the lapse of five (5) days unless a motion for
reconsideration is seasonably filed. In which case, the votes cast shall not be
considered stray but shall be counted and tallied for the bona fide candidate.

All resolutions, orders and rules inconsistent herewith are hereby modified or
repealed. [EMPHASIS SUPPLIED.]


We held in several cases that the judgments of the Electoral Tribunals are
beyond judicial interference, unless rendered without or in excess of their
jurisdiction or with grave abuse of discretion.
[27]
The power of judicial review may
be invoked in exceptional cases upon a clear showing of such arbitrary and
improvident use by the Tribunal of its power as constitutes a clear denial of due
process of law, or upon a demonstration of a very clear unmitigated error,
manifestly constituting such grave abuse of direction that there has to be a
remedy for such abuse.
[28]
Grave abuse of discretion implies capricious and
whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and
despotic exercise of power because of passion or personal hostility. The grave
abuse of discretion must be so patent and gross as to amount to an evasion or
refusal to perform a duty enjoined by law.
[29]
Respondent HRET gravely abused
its discretion in affirming the proclamation of respondent Salimbangon as the
duly elected Representative of the Fourth Legislative District of Cebu despite the
final outcome of revision showing 5,401 ballots with only "MARTINEZ" or "C.
"MARTINEZ" written on the line for Representative, votes which should have been
properly counted in favor of petitioner and not nullified as stray votes, after
considering all relevant circumstances clearly establishing that such votes could
not have been intended for "Edilito C. Martinez" who was declared a nuisance
candidate in a final judgment.
Ensconced in our jurisprudence is the well-founded rule that laws and
statutes governing election contests especially appreciation of ballots must be
liberally construed to the end that the will of the electorate in the choice of public
officials may not be defeated by technical infirmities. An election protest is
imbued with public interest so much so that the need to dispel uncertainties
which becloud the real choice of the people is imperative.
[30]
The prohibition
against nuisance candidates is aimed precisely at preventing uncertainty
and confusion in ascertaining the true will of the electorate. Thus, in certain
situations as in the case at bar, final judgments declaring a nuisance candidate
should effectively cancel the certificate of candidacy filed by such candidate as
of election day. Otherwise, potential nuisance candidates will continue to put the
electoral process into mockery by filing certificates of candidacy at the last minute
and delaying resolution of any petition to declare them as nuisance candidates
until elections are held and the votes counted and canvassed.

We therefore hold that ballots indicating only the similar surname of two (2)
candidates for the same position may, in appropriate cases, be counted in favor of
the bona fidecandidate and not considered stray, even if the other candidate was
declared a nuisance candidate by final judgment after the elections. Accordingly,
the 5,401 votes for "MARTINEZ" or "C. MARTINEZ" should be credited to
petitioner giving him a total of 72,056 votes as against 67,108 total votes of
private respondent. Petitioner thus garnered more votes than private respondent
with a winning margin of 4,948 votes.

WHEREFORE, the petition is GRANTED. The Decision dated May 28, 2009
and Resolution dated July 30, 2009 of the House of Representatives Electoral
Tribunal in HRET Case No. 07-035 are ANNULLED and SET ASIDE. Petitioner
Celestino A. Martinez III is hereby declared the duly elected Representative of the
Fourth Legislative District of Cebu in the May 14, 2007 elections. This decision is
immediately executory.

Let a copy of the decision be served personally upon the parties and their
counsels.

No pronouncement as to costs.
SO ORDERED.

MARTIN S. VILLARAMA, JR.
Associate Justice

WE CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO
Associate Justice
RENATO C. CORONA
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
ROBERTO A. ABAD
Associate Justice
JOSE P. PEREZ
Associate Justice
JOSE C. MENDOZA
Associate Justice



CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.




REYNATO S. PUNO
Chief Justice





[1]
Rollo, Vol. II. 96-144.
[2]
Id., Vol. XVI, pp. 7186-7187.

[3]
Docketed as SPA Case No. 07-133 (PES).

[4]
HRET Decision, Rollo, pp. 97-98.

[5]
Id., pp. 99 and 117.

[6]
Id., p. 117.

[7]
Id., p. 119.

[8]
Id., pp. 120-121.

[9]
Id., pp. 119-120.

[10]
Id., pp. 140-141.

[11]
Rollo, Vol. XVI, pp. 7186-7187.

[12]
Id., Vol. I, pp. 9-10, 14-18.

[13]
G.R. No. 133840, November 13, 1998, 298 SCRA 480.

[14]
Rollo, pp. 10-14, 18-19.

[15]
Sec. 72, Omnibus Election Code (B.P. Blg. 881).

[16]
Rollo, Vol. XVI, pp. 7188-7190.

[17]
Id., pp. 7194-7198.

[18]
Rule 18, Sec. 13 (c), COMELEC Rules of Procedure.

[19]
Section 211. Rules for the appreciation of ballots. - In the reading and appreciation of ballots, every ballot
shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of
election inspectors shall observe the following rules, bearing in mind that the object of the election is to
obtain the expression of the voters' will:

x x x x

4. When two or more words are written on the same line on the ballot, all of which are the surnames of
two or more candidates, the same shall not be counted for any of them, unless one is a surname of an
incumbent who has served for at least one year in which case it shall be counted in favor of the latter.

When two or more words are written on different lines on the ballot all of which are the surnames of
two or more candidates bearing the same surname for an office for which the law authorizes the election of
more than one and there are the same number of such surnames written as there are candidates with that
surname, the vote shall be counted in favor of all the candidates bearing the surname.

x x x x
[20]
Bautista v. Commission on Elections, supra, at pp. 487-492.

[21]
Rollo, Vol. II, pp. 117-119.

[22]
Batul v. Bayron, G.R. Nos. 157687 and 158959, February 26, 2004, 424 SCRA 26, citing Barroso v. Hon.
Ampig, Jr., 385 Phil. 237 (2000).

[23]
G.R. No. 161872, April 13, 2004, 427 SCRA 96.

[24]
Id., pp. 104-105.

[25]
In the Playing Field of Local Politics, Dirty Tricks Win the Game published by the Philippine Center for
Investigative Journalism sourced from the Internet at <http://www.pcij.org/stories/1998/dirty.html.>

[26]
May 7, 2001.

[27]
Lazatin v. House Electoral Tribunal, No. L-84297, December 8, 1988, 168 SCRA 391, 404; Co v. Electoral
Tribunal of the House of Representatives, G.R. Nos. 92191-92 and 92202-03, July 30, 1991, 199 SCRA 692,
700; Libanan v. House of Representatives Electoral Tribunal, G.R. No. 129783, December 22, 1997, 283
SCRA 520, 529.

[28]
Robles v. House of Representative Electoral Tribunal, G.R. No. 86647, February 5, 1990, 181 SCRA 780,
785-786.

[29]
Abubakar v. House of Representatives Electoral Tribunal, G.R. Nos. 173310 & 173609, March 7, 2007, 517
SCRA 762, 776, citing Batul v. Bayron, G.R. Nos. 157687 & 158959, February 26, 2004, 424 SCRA 26, 41.

[30]
Punzalan v. Commission on Elections, G.R. Nos. 126669, 127900, 128800 and 132435, April 27, 1998, 289
SCRA 702, 720.



Republic of the Philippines
Supreme Court
Manila

EN BANC

SERGIO G. AMORA, JR.,
Petitioner,








- versus -









G.R. No. 192280

Present:

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
*

DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.

Promulgated:

January 25, 2011



COMMISSION ON ELECTIONS and
ARNIELO S. OLANDRIA,
Respondents.
x-----------------------------------------------------------------------------------------x

DECISION
NACHURA, J.:


Before us is a petition for certiorari under Rule 64, in relation to Rule 65, of
the Rules of Court, seeking to annul and set aside the Resolutions dated April 29,
2010
[1]
and May 17, 2010,
[2]
respectively, of the Commission on Elections
(COMELEC) in SPA No. 10-046 (DC).
First, the undisputed facts.

On December 1, 2009, petitioner Sergio G. Amora, Jr. (Amora) filed his
Certificate of Candidacy (COC) for Mayor of Candijay, Bohol. At that time, Amora
was the incumbent Mayor of Candijay and had been twice elected to the post, in
the years 2004 and 2007.

To oppose Amora, the Nationalist Peoples Coalition (NPC) fielded Trygve L.
Olaivar (Olaivar) for the mayoralty post. Respondent Arnielo S. Olandria
(Olandria) was one of the candidates for councilor of the NPC in the same
municipality.

On March 5, 2010, Olandria filed before the COMELEC a Petition for
Disqualification against Amora. Olandria alleged that Amoras COC was not
properly sworn contrary to the requirements of the Omnibus Election Code (OEC)
and the 2004 Rules on Notarial Practice. Olandria pointed out that, in executing
his COC, Amora merely presented his Community Tax Certificate (CTC) to the
notary public, Atty. Oriculo Granada (Atty. Granada), instead of presenting
competent evidence of his identity. Consequently, Amoras COC had no force and
effect and should be considered as not filed.

Amora traversed Olandrias allegations in his Answer cum Position
Paper.
[3]
He countered that:

1. The Petition for Disqualification is actually a Petition to Deny Due
Course or cancel a certificate of candidacy. Effectively, the petition of Olandria is
filed out of time;

2. Olandrias claim does not constitute a proper ground for the
cancellation of the COC;

3. The COC is valid and effective because he (Amora) is personally
known to the notary public, Atty. Granada, before whom he took his oath in filing
the document;

4. Atty. Granada is, in fact, a close acquaintance since they have been
members of the League of Muncipal Mayors, Bohol Chapter, for several years;
and

5. Ultimately, he (Amora) sufficiently complied with the requirement
that the COC be under oath.

As previously adverted to, the Second Division of the COMELEC granted the
petition and disqualified Amora from running for Mayor of Candijay, Bohol.

Posthaste, Amora filed a Motion for Reconsideration
[4]
before the
COMELEC en banc. Amora reiterated his previous arguments and emphasized the
asseverations of the notary public, Atty. Granada, in the latters affidavit,
[5]
to wit:

1. The COMELECs (Second Divisions) ruling is contrary to the objectives
and basic principles of election laws which uphold the primacy of the popular will;

2. Atty. Granada states that while he normally requires the affiant to
show competent evidence of identity, in Amoras case, however, he accepted
Amoras CTC since he personally knows him;

3. Apart from the fact that Amora and Atty. Granada were both
members of the League of Municipal Mayors, Bohol Chapter, the two consider
each other as distant relatives because Amoras mother is a Granada;

4. It is a matter of judicial notice that practically everybody
knows the Mayor, most especially lawyers and notaries public, who keep
themselves abreast of developments in local politics and have frequent dealings
with the local government; and

5. In all, the COC filed by Amora does not lack the required formality of
an oath, and thus, there is no reason to nullify his COC.

Meanwhile, on May 10, 2010, national and local elections were held.
Amora obtained 8,688 votes, equivalent to 58.94% of the total votes cast,
compared to Olaivars 6,053 votes, equivalent to only 41.06% thereof.
Subsequently, the Muncipal Board of Canvassers of Candijay, Bohol, proclaimed
Amora as the winner for the position of Municipal Mayor of Candijay, Bohol.
[6]


A week thereafter, or on May 17, 2010, in another turn of events, the
COMELEC en banc denied Amoras motion for reconsideration and affirmed the
resolution of the COMELEC (Second Division). Notably, three (3) of the seven (7)
commissioners dissented from the majority ruling. Commissioner Gregorio
Larrazabal (Commissioner Larrazabal) wrote a dissenting opinion, which was
concurred in by then Chairman Jose A.R. Melo and Commissioner Rene V.
Sarmiento.

In denying Amoras motion for reconsideration and upholding Olandrias
petition for disqualification of Amora, the COMELEC ratiocinated, thus:

[Amora] himself admitted in his Motion that the Second Division was correct in
pointing out that the CTC is no longer a competent evidence of identity for purposes of
notarization.

The COC therefore is rendered invalid when [petitioner] only presented his CTC to
the notary public. His defense that he is personally known to the notary cannot be given
recognition because the best proof [of] his contention could have been the COC itself.
However, careful examination of the jurat portion of the COC reveals no assertion by
the notary public that he personally knew the affiant, [petitioner] herein. Belated
production of an Affidavit by the Notary Public cannot be given weight because such
evidence could and should have been produced at the earliest possible opportunity.

The rules are absolute. Section 73 of the Election Code states:

Section 73. Certificate of Candidacy. No person shall be eligible for
any elective public office unless he files a sworn certificate of
candidacy within the period fixed herein.

Under the 2004 Rules on Notarial Practice of 2004 (Rules), the requirements of
notarization of an oath are:

Section 2. Affirmation or Oath. The term Affirmation or Oath refers
to an act in which an individual on a single occasion:

(a) appears in person before the notary public;

(b) is personally known to the notary public or identified by the notary
public through competent evidence of identity as defined by these
Rules; and

(c) avows under penalty of law to the whole truth of the contents
of the instrument or document.

The required form of identification is prescribed in [S]ection 12 of the same
Rules, to wit:

Section 12. Competent Evidence of Identity. The phrase competent
evidence of identity refers to the identification of an individual based
on:

(a) at least one current identification document issued by an
official agency bearing the photograph and signature of the individual. x
x x.

It is apparent that a CTC, which bears no photograph, is no longer a valid form of
identification for purposes of Notarization of Legal Documents. No less than the
Supreme Court itself, when it revoked the Notarial Commission of a member of the Bar
in Baylon v. Almo, reiterated this when it said:

As a matter of fact, recognizing the established unreliability of a
community tax certificate in proving the identity of a person who wishes
to have his document notarized, we did not include it in the list of
competent evidence of identity that notaries public should use in
ascertaining the identity of persons appearing before them to have their
documents notarized.

Seeking other remedies, [Amora] maintained that Section 78 of the Election Code
governs the Petition. Said section provides that:

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 the 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.

[Amora] however failed to note that the Petition relies upon an entirely different
ground. The Petition has clearly stated that it was invoking Section 73 of the Election
Code, which prescribes the mandatory requirement of filing a sworn certificate of
candidacy. As properly pointed out by [Olandria], he filed a Petition to Disqualify for
Possessing Some Grounds for Disqualification, which, is governed by COMELEC
Resolution No. 8696, to wit:

B. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SECTION 68
OF THE OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR
LACK OF QUALIFICATIONS OR POSSESSING SOME GROUNDS FOR
DISQUALIFICATION


1. A verified petition to disqualify a candidate pursuant to
Section 68 of the OEC and the verified petition to
disqualify a candidate for lack of qualifications
or possessing some grounds for disqualification may
be filed on any day after the last day for filing of
certificates of candidacy but not later than the date of
proclamation;

x x x x

3. The petition to disqualify a candidate for lack of
qualification or possessing some grounds for
disqualification, shall be filed in ten (10) legible copies,
personally or through a duly authorized representative,
by any person of voting age, or duly registered political
party, organization or coalition of political parties on the
ground that the candidate does not possess all the
qualifications as provided for by the Constitution or by
existing law or who possesses some grounds for
disqualification as provided for by the Constitution or by
existing law.

x x x x

Finally, we do not agree with [Amora] when he stated that the Second
Divisions Resolution practically supplanted congress by adding another ground for
disqualification, not provided in the omnibus election code or the local government
code. The constitution is very clear that it is congress that shall prescribe the
qualifications (and disqualifications) of candidates for local government positions.
These grounds for disqualification were laid down in both laws mentioned by [Amora]
and COMELEC Resolution 8696.
[7]



Hence, this petition for certiorari imputing grave abuse of discretion to the
COMELEC. On June 15, 2010, we issued a Status Quo Ante Order and directed
respondents to comment on the petition. As directed, Olandria and the COMELEC
filed their respective Comments
[8]
which uniformly opposed the petition.
Thereafter, Amora filed his Reply.
[9]


Amora insists that the Petition for Disqualification filed by Olandria is
actually a Petition to Deny Due Course since the purported ground for
disqualification simply refers to the defective notarization of the COC. Amora is
adamant that Section 73 of the OEC pertains to the substantive qualifications of a
candidate or the lack thereof as grounds for disqualification, specifically, the
qualifications and disqualifications of elective local officials under the Local
Government Code (LGC) and the OEC. Thus, Olandrias petition was filed way
beyond the reglementary period of twenty-five (25) days from the date of the
filing of the disputed COC.

Moreover, Amora maintains that his COC is properly notarized and not
defective, and the presentation of his CTC to the notary public to whom he was
personally known sufficiently complied with the requirement that the COC be
under oath. Amora further alleges that: (1) Olaivar, his opponent in the mayoralty
post, and likewise a member of the NPC, is purportedly a fraternity brother and
close associate of Nicodemo T. Ferrer (Commissioner Ferrer), one of the
commissioners of the COMELEC who disqualified him; and (2) Olaivar served as
Consultant for the COMELEC, assigned to the Office of Commissioner Ferrer.

Olandria and the COMELEC reiterated the arguments contained in the
COMELEC en banc resolution of May 17, 2010.

Amoras petition is meritorious.

We find that the COMELEC ruling smacks of grave abuse of discretion, a
capricious and whimsical exercise of judgment equivalent to lack of
jurisdiction. Certiorari lies where a court or any tribunal, board, or officer
exercising judicial or quasi-judicial functions has acted without or in excess of
jurisdiction or with grave abuse of discretion.
[10]


In this case, it was grave abuse of discretion to uphold Olandrias claim that
an improperly sworn COC is equivalent to possession of a ground for
disqualification. Not by any stretch of the imagination can we infer this as an
additional ground for disqualification from the specific wording of the OEC in
Section 68, which reads:

SEC. 68. Disqualifications. Any candidate who, in an action or protest in which
he is party is declared by final decision of a competent court guilty of, or found by the
Commission of having: (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign
an amount in excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of
Sections 80, 83, 85, 86, and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be
disqualified from continuing as a candidate, or if he has been elected, from holding the
office. Any person who is a permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this Code, unless said person
has waived his status as a permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the elections laws.


and of Section 40 of the LGC, which provides:

SEC. 40. Disqualifications. The following persons are disqualified from running
for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of imprisonment, within
two (2) years after serving sentence;

(b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to
the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired
the right to reside abroad and continue to avail of the same right after the
effectivity of this Code; and

(g) The insane or feeble-minded.

It is quite obvious that the Olandria petition is not based on any of the grounds
for disqualification as enumerated in the foregoing statutory provisions. Nowhere
therein does it specify that a defective notarization is a ground for the
disqualification of a candidate. Yet, the COMELEC would uphold that petition
upon the outlandish claim that it is a petition to disqualify a candidate for lack of
qualifications or possessing some grounds for disqualification.

The proper characterization of a petition as one for disqualification under
the pertinent provisions of laws cannot be made dependent on the designation,
correctly or incorrectly, of a petitioner. The absurd interpretation of Olandria,
respondent herein, is not controlling; the COMELEC should have dismissed his
petition outright.

A petition for disqualification relates to the declaration of a candidate as
ineligible or lacking in quality or accomplishment fit for the position of mayor. The
distinction between a petition for disqualification and the formal requirement in
Section 73 of the OEC that a COC be under oath is not simply a question of
semantics as the statutes list the grounds for the disqualification of a candidate.

Recently, we have had occasion to distinguish the various petitions for
disqualification and clarify the grounds therefor as provided in the OEC and the
LGC. We declared, thus:
To emphasize, a petition for disqualification on the one hand, can be premised
on Section 12 or 68 of the OEC, or Section 40 of the LGC. On the other hand, a petition
to deny due course to or cancel a CoC can only be grounded on a statement of a
material representation in the said certificate that is false. The petitions also have
different effects. While a person who is disqualified under Section 68 is merely
prohibited to continue as a candidate, the person whose certificate is cancelled or
denied due course under Section 78 is not treated as a candidate at all, as if he/she
never filed a CoC. Thus, inMiranda v. Abaya, this Court made the distinction that a
candidate who is disqualified under Section 68 can validly be substituted under Section
77 of the OEC because he/she remains a candidate until disqualified; but a person
whose CoC has been denied due course or cancelled under Section 78 cannot be
substituted because he/she is never considered a candidate.
[11]



Apart from the qualifications provided for in the Constitution, the power to
prescribe additional qualifications for elective office and grounds for
disqualification therefrom, consistent with the constitutional provisions, is vested
in Congress.
[12]
However, laws prescribing qualifications for and disqualifications
from office are liberally construed in favor of eligibility since the privilege of
holding an office is a valuable one.
[13]
We cannot overemphasize the principle that
where a candidate has received popular mandate, all possible doubts should be
resolved in favor of the candidates eligibility, for to rule otherwise is to defeat
the will of the people.
[14]


In stark contrast to the foregoing, the COMELEC allowed and confirmed the
disqualification of Amora although the latter won, and was forthwith proclaimed,
as Mayor of Candijay, Bohol.

Another red flag for the COMELEC to dismiss Olandrias petition is the fact
that Amora claims to personally know the notary public, Atty. Granada, before
whom his COC was sworn. In this regard, the dissenting opinion of Commissioner
Larrazabal aptly disposes of the core issue:


With all due respect to the well-written Ponencia, I respectfully voice my dissent.
The primary issue herein is whether it is proper to disqualify a candidate who, in
executing his Certificate of Candidacy (COC), merely presented to the Notary Public his
Community Tax Certificate.

The majority opinion strictly construed the 2004 Rules on Notarial Practice (the
2004 Notarial Rules) when it provided that valid and competent evidence of
identification must be presented to render Sergio G. Amora, Jr.s *petitioners+ COC
valid. The very wording of the 2004 Notarial Rules supports my view that the instant
motion for reconsideration ought to be granted, to wit:

Section 2. Affirmation or Oath . The term Affirmation or
Oath refers to an act in which an individual on a single occasion:

(a) appears in person before the notary public;

(b) is personally known to the notary public or identified by
the notary public through competent evidence of identity as defined by
these Rules; and

(c) avows under penalty of law to the whole truth of the
contents of the instrument or document.

As quoted supra, competent evidence of identity is not required in cases where
the affiant is personally known to the Notary Public, which is the case herein. The
records reveal that [petitioner] submitted to this Commission a sworn affidavit executed
by Notary Public Oriculo A. Granada (Granada), who notarized *petitioners+ COC,
affirming in his affidavit that he personally knows [petitioner].

[Respondent], on the other hand, presented no evidence to counter Granadas
declarations. Hence, Granada*s+ affidavit, which narrates in detail his personal relation
with [petitioner], should be deemed sufficient.

The purpose of election laws is to give effect to, rather than frustrate, the will of
the voters. The people of Candijay, Bohol has already exercised their right to suffrage on
May 10, 2010 where [petitioner] was one of the candidates for municipal mayor. To
disqualify [petitioner] at this late stage simply due to an overly strict reading of the 2004
Notarial Rules will effectively deprive the people who voted for him their rights to vote.

The Supreme Courts declaration in Petronila S. Rulloda v. COMELEC et al. must
not be taken lightly:

Technicalities and procedural niceties in election cases should not
be made to stand in the way of the true will of the electorate. 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.

Election contests involve public interest, and technicalities and
procedural barriers must yield if they constitute an obstacle to the
determination of the true will of the electorate in the choice of their
elective officials. The Court frowns upon any interpretation of the law
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.
[15]



Our ruling herein does not do away with the formal requirement that a COC
be sworn. In fact, we emphasize that the filing of a COC is mandatory and must
comply with the requirements set forth by law.
[16]


Section 2 of the 2004 Rules on Notarial Practice lists the act to which an
affirmation or oath refers:

Sec. 2. Affirmation or Oath. The term Affirmation or Oath refers to an act
in which an individual on a single occasion:

(a) appears in person before the notary public;

(b) is personally known to the notary public or identified by the notary
public through competent evidence of identity as defined by these
Rules; and

(c) avows under penalty of law to the whole truth of the contents of the
instrument or document.


In this case, however, contrary to the declarations of the COMELEC, Amora
complied with the requirement of a sworn COC. He readily explained that he and
Atty. Granada personally knew each other; they were not just colleagues at the
League of Municipal Mayors, Bohol Chapter, but they consider each other as
distant relatives. Thus, the alleged defect in the oath was not proven by Olandria
since the presentation of a CTC turned out to be sufficient in this instance. On the
whole, the COMELEC should not have brushed aside the affidavit of Atty. Granada
and remained inflexible in the face of Amoras victory and proclamation as Mayor
of Candijay, Bohol.

WHEREFORE, the petition is GRANTED. The Resolutions of the Commission
on Elections in SPA No. 10-046 (DC) dated April 29, 2010 and May 17, 2010,
respectively, are ANULLED and SET ASIDE.

SO ORDERED.



ANTONIO EDUARDO B. NACHURA
Associate Justice


WE CONCUR:



RENATO C. CORONA
Chief Justice



ANTONIO T. CARPIO
Associate Justice



CONCHITA CARPIO MORALES
Associate Justice




No part due to relationship to a party
PRESBITERO J. VELASCO, JR.
Associate Justice





TERESITA J. LEONARDO-DE CASTRO
Associate Justice



ARTURO D. BRION
Associate Justice



DIOSDADO M. PERALTA
Associate Justice




(on leave)
LUCAS P. BERSAMIN
Associate Justice





MARIANO C. DEL CASTILLO
Associate Justice







ROBERTO A. ABAD
Associate Justice

MARTIN S. VILLARAMA, JR.
Associate Justice



JOSE PORTUGAL PEREZ
Associate Justice



JOSE CATRAL MENDOZA
Associate Justice



MA. LOURDES P.A. SERENO
Associate Justice



C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.



RENATO C. CORONA
Chief Justice






*
On leave.
[1]
Rollo, pp. 59-64.
[2]
Id. at 65-72.
[3]
Id. at 96-102.
[4]
Id. at 115-136.
[5]
Id. at 77-78.
[6]
Id. at 144.
[7]
Id. at 68-72.
[8]
Id. at 161-172, 180-190.
[9]
Id. at 204-227.

[10]
RULES OF COURT, Rule 65, Sec. 1 .
[11]
Fermin v. COMELEC, G.R. Nos. 179695 and 182369, December 18, 2008, 574 SCRA 782, 796.
[12]
Dumlao v. COMELEC, 184 Phil. 369 (1980).
[13]
Agpalo, Comments on the Omnibus Election Code (2004), p. 144.
[14]
OHara v. COMELEC, G.R. Nos. 148941-42, March 12, 2002, 379 SCRA 247.
[15]
Rollo, pp. 73-75.
[16]
Omnibus Election Code, Secs. 73-74 .



Republic of the Philippines
Supreme Court
Manila

EN BANC

ALFAIS T. MUNDER,
Petitioner,






- versus -





COMMISSION ON ELECTIONS AND
ATTY. TAGO R. SARIP,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - x
ATTY. TAGO R. SARIP,
Petitioner,





- versus -



G.R. No. 194076












G.R. No. 194160

Present:

CORONA, C.J.,
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x


D E C I S I O N


SERENO, J.:

Jurisprudence has clearly established the doctrine that a petition for
disqualification and a petition to deny due course to or to cancel a certificate of
candidacy, are two distinct remedies to prevent a candidate from entering an
electoral race. Both remedies prescribe distinct periods to file the corresponding
petition, on which the jurisdiction of the Commission on Elections (Comelec) over
the case is dependent. The present case, assailing a resolution of the Comelec En
Banc, is not an exception. It must follow the rule set by law and jurisprudential
doctrine.

The consolidated cases before us stem from a controversy resolved by the
Comelec En Banc in SPA No. 10-086(DC) in its Resolution
*

promulgated on 04
October 2010.
[1]
The Comelec En Banc reversed the





earlier Resolution
[2]
of the Comelec Second Division and disqualified







petitioner Alfais T. Munder (Munder) from holding office as Mayor of







Bubong, Lanao del Sur.


The Antecedents

In the last national election, which included the election of local elective
officials, petitioner Munder ran as mayor of Bubong, Lanao del Sur, and filed his
certificate of candidacy (CoC) on 26 November 2009. The last day for filing the
certificate of candidacy was on 30 November 2009.
[3]
Under Sec. 4(A)(1) of
Comelec Resolution 8696, a petition to deny due course or to cancel a certificate
of candidacy must be filed within five days from the last day of the filing of the
certificate of candidacy but not later than twenty-five days from the filing
thereof.
[4]
Respondent Atty. Tago Sarip (Sarip) likewise filed a certificate of
candidacy and vied for the same position in the same municipality.





On 13 April 2010, Sarip filed a Petition for Disqualification
[5]
with the Comelec
on the ground that Munder was not a registered voter of Bubong, Lanao del Sur,
and that the latters application for candidacy was not accomplished in full.
Sarip corroborated his allegation that Munder was not a registered voter by
presenting a Certification from Amerah M. Hadji Sarip Election Officer of
Bubong, Lanao del Sur that, in the election list, there was no Alfais T. Munder
born on 7 May 1987.
[6]
He also presented a copy of a Voter Certification of one
Munder, Alfais Tocalo, residing at Rogero, Bubong, Lanao del Sur, whose date of
birth was 05/07/1984, and who was registered as a voter on 7/26/2003. The
said person was 18 years old at that time.
[7]
On the other hand, petitioner
Munders CoC for Mayor contained the name of a candidate as Munder, Alfais
Tocalo, 22 years old, with residence at Barangay Montia-an, Bubong, Lanao del
Sur, and whose date of birth was 05-07-1987.
[8]

Capitalizing on the seeming inconsistencies, Sarip argued that the candidate
Munder was different from the registered voter Munder, since they had different
birth years. Consequently, according to Sarip, Munder did not possess the
qualification to run as elective official and should be disqualified. Sarip also
maintained that Munder had committed dishonesty and falsity in stating that the
latter was a registered voter of Bubong, Lanao del Sur. Sarip filed his Petition for
Disqualification pursuant to Resolution No. 8696, Section 4 (B) 1 and argued that
he had timely filed the petition. Munder, on the other hand, countered that he
was a registered voter of Precinct No. 0033, Barangay Rogero, Municipality of
Bubong, Lanao del Sur.
[9]


In the 10 May 2010 elections, Munder won overwhelmingly. Garnering
4,793 votes, he had more than twice the number obtained by Sarip, who came in
second with 2,356 votes. The Municipal Board of Canvassers of Bubong, Lanao
del Sur, thus proclaimed Munder as mayor on 15 May 2010. He filed his answer
on 22 May 2010.

In his Answer with Affirmative Defenses,
[10]
Munder denied committing any
misrepresentation in his CoC. He also argued that false representations,
dishonesty and mockery of justice were not grounds for disqualification of a
candidate under Comelec Resolution No. 8696. In effect, he argued that Sarip
had availed himself of the wrong remedy and that the latters petition should be
treated as a Petition to Deny Due Course to or to Cancel Certificate of
Candidacy. At the time Sarip filed his petition, the said period had already
lapsed. Munder thus prayed for the dismissal of the formers petition against
him.



On 29 June 2010, the Comelec Second Division sustained Munders
arguments and dismissed Sarips Petition. It agreed with Munder that the
grounds invoked by Sarip were not proper for a petition for disqualification, and
that the latters petition was actually seeking the purging of Munders CoC. It
partly held:
...*I+t appears that the nucleus of petitioners cause of action to sustain his petition are
the misrepresentations (respondent not being a registered voter of Municipality of
Bubong, Lanao del Sur and the respondent was still a minor when he registered as a
voter of the said municipality) allegedly perpetrated by the respondent, and the failure
of the respondent to accomplish the formalities of his COC (the respondents failure to
indicate his precinct and to affix his thumbprint therein). We view all these
disputations raised by the petitioner inappropriate for the petition for
disqualification. These are not grounds for the petition for disqualification
contemplated by the rules. In quintessence (sic) of the action taken the petitioner is
actually seeking the denial or cancellation of the respondents COCinvoking false
material representation of the respondents qualification(s). However, the filing of a
petition under this remedy has a prescriptive period which must be strictly
followed. Under the rules, a verified petition to deny due course or to cancel
certificate of candidacy may be filed by any person within five (5) days from the last
day for the filing of certificate of candidacy but not later than twenty-five (25) days
from the filing of certificate of candidacy under Section 78 of the Omnibus Election
Code. Pursuant to the above rule, the petitioner has twenty-five (25) days after the
filing the assailed COC or until December 21, 2009 to file the petition. Since the
instant petition was filed only on March 13, 2010 or one hundred-seven (107) days
beyond the reglementary period to file a petition to deny due course or to cancel the
respondents COC, the petitioner miserably failed to file his petition within the
prescribed period.

A petition to deny due course or to cancel a certificate of candidacy
filed beyond the required period is filed out of time and may be not entertained. An
attempt to circumvent the rules on prescription of period to file a petition to deny due
course or to cancel COC in disguise of a petition for qualification will not be
countenanced in this jurisdiction.

Anent the contention of the petitioner vis-a-vis the failure of the
respondent to comply with the formalities of the COC, the law governing the contents
of the COC is Section 74 of the Omnibus Election Code. The alleged defect on the COC
of the respondent, which is, failure to indicate therein his precinct and his failure to
affix his thumbprint are not among those mandatory requirements enumerated under
the aforementioned law. Hence, those assailed flaw in the formalities of the
respondents COC does not warrant the invalidation of the same. At most, it can only
be considered as a minor inadvertence on the part of the respondent which does not
necessarily nullify his COC. It has been held that when the law does not provide
otherwise, a departure from the requirements of law which has been due to honest
mistake or misinterpretation of the law on the part of him who is obligated to observe
it and such departure has not been used as a means for fraudulent practices, will he
held directory and such departure will be considered a harmless
irregularity.
[11]
(Emphases supplied)

The outcome was, however, different when the Comelec En Banc, upon
Sarips Motion for Reconsideration,
[12]
reversed the ruling of the Second Division
and disqualified Munder in its 4 October 2010 Resolution. The Comelec ruled
directly on the substantive merit of the case, and not on the propriety of the
remedy taken by Sarip. It thus ruled on the question of the continuing possession
by Munder of one of the qualifications of the office of the Mayor being a
registered voter of the municipality where he runs as a candidate.
The Comelec En Banc decided the case on a single issue whether the
person described in the CoC and in the Certificate of Live Birth referred to the
same person in the Voters Certification, petitioner Alfais Tocalo Munder. The
Comelec En Banc ruled on this factual issue, stating that the said persons were
not one and the same, as they had different birth years. The Comelec held thus:
...It is difficult to reconcile that the ALFAIS TOCALO MUNDER who filed his COC,
showing his intent to run as municipal mayor of Bubong, Lanao del Sur is one and the
same person as that of ALFAIS TOCALO MUNDER who registered as voter of Barangay
Rogero, Bubong, Lanao del Sur when records show that the ALFAIS TOCALO MUNDER
who filed his COC indicated his date of birth as MAY 7, 1987 (as supported by the
Certificate of Live Birth issued by the NSO) while the ALFAIS TOCALO MUNDER who
registered as voter of Barangay Rogero, Bubong, Lanao del Sur indicated his date of
birth as MAY 7, 1984. No person can be born twice.
[13]

The Comelec also disregarded the fact that Munder had already been
proclaimed as mayor of Bubong, Lanao del Sur. Consequently, it ruled against
him and proceeded to declare him disqualified to hold the office of the mayor, for
which he had been elected. The Comelec En Banc held:
The Supreme Court has time and again ruled that qualifications for an elective office
are continuing requirements and once any of them is lost, title to the office is
forfeited. Munder lacking the requisite qualification of being a registered voter,
should be removed from office.
[14]



It ordered Munder to vacate the Office of the Mayor, and the elected vice-mayor
to assume the position of mayor. It further directed the Department of Interior
and Local Government and the Philippine National Police (PNP) to implement the
Resolution against Munder. From this Resolution originated the two petitions
filed by the two rivals for the mayoral position.

At the instance of Munder, we issued on 18 January 2011, a Temporary
Restraining Order against the Comelec, DILG and PNP from implementing the 4
October 2010 Resolution of the Comelec removing Munder from the
office.
[15]
The impending execution of the Comelecs Resolution created
divisiveness and disorder in the municipality of Bubong such that even the
military attested that they were on red alert due to the volatile political
situation in the area brought about by the possible ouster of Munder. The Vice
Mayor also prematurely assumed the office of the mayor and allegedly withdrew
the Internal Revenue Allocation without a resolution from the Sangguniang
Bayan. This aggravated the tension that had already been created by the election
dispute between the petitioners of these consolidated petitions. The Court, thus,
deemed a TRO justified to prevent disorder and bloodshed in Bubong.
In his petition, Munder argues that the Comelec acted without or in excess
of its jurisdiction in taking cognizance of Sarips petition which was filed
beyond the reglementary period provided by law. Munder claims that Sarip
should have instead filed a petition for quo warranto after the formers
proclamation as the winning candidate. Munder likewise asserts that the
Comelec committed grave abuse of discretion in effectively ruling upon his right
to vote, when it attacked his status as a registered voter, in order to disqualify
him from the mayoralty office.
Sarip, on the other hand, argues that the Comelec En Banc also acted with
grave abuse of discretion in not declaring him entitled to assume the office of the
municipal mayor of Bubong, Lanao del Sur after the disqualification of respondent
Munder.
Public respondent Comelec, through the Office of the Solicitor General,
chose to file its Comment only with respect to G.R. No. 194160, Sarips Petition. It
reiterated the legal doctrine that the second placer cannot be declared a winner
in case the candidate who obtained the highest number of votes is
disqualified. The OSG opposed Sarips prayer that he, instead of the Vice-Mayor,
be installed as Mayor of Bubong, Lanao del Sur.

The Issues

(1) May a petition filed as a Petition for Disqualification properly
invoke, as a ground, that the candidate sought to be disqualified
was not a registered voter and thus not be barred by the earlier
prescriptive period applicable to Petition to Deny Due Course to
or to Cancel Certificate of Candidacy?

(2) Did the Comelec commit grave abuse of discretion in
concluding that the Alfais Munder in the voters list is not the
same as Alfais Munder the candidate?

(3) Does Sarip have the right to be installed as Mayor of Bubong,
Lanao del Sur for having placed second in the electoral contest
therefor?

The Courts Ruling

The Comelec has the constitutional mandate to enforce and administer all
laws and regulations relative to the conduct of an election.
[16]
It has the power to
create its own rules and regulations, a power it exercised on 11 November 2009
in promulgating Resolution No. 8696, or the Rules on Disqualification of Cases
filed in Connection with the May 10, 2010 Automated National and Local
Elections. Section 4 thereof provides for the procedure to be followed in filing
the following petitions: 1) Petition to Deny Due Course to or Cancel Certificate of
Candidacy; 2) Petition to Declare a Nuisance Candidate, and 3) petition to
disqualify a candidate pursuant to Section 68 of the Election Code and petition to
disqualify for lack of qualifications or for possessing some grounds for
disqualification.

Resolution No. 8696 provides for the venue for the filing of the petitions and
the period within which they should be filed. The validity of the said Resolution
has been recognized by this Court in the fairly recent case of Amora v.
Comelec.
[17]


Munder alleges that Sarips petition with the Comelec should be considered
as one to deny due course to or to cancel a CoC, and not for disqualification. One
of the important differences between the two petitions is their prescriptive
periods. For a Petition to Deny Due Course or to Cancel a Certificate of
Candidacy, the period to file is within five days from the last day of the filing of
the certificate of candidacy, but not later than 25 days from the filing thereof. On
the other hand, a petition to disqualify a candidate may be filed at any day after
the last day of filing of the certificate of candidacy, but not later than the date of
proclamation.

It has been argued by Munder, who was earlier sustained by the Comelec
Second Division, that the petition for disqualification should be treated as a
petition to deny due course to or to cancel a certificate of candidacy, which had
already prescribed.
We agree with Munder as to the nature of the petition filed by Sarip. The
main ground of the said petition is that Munder committed dishonesty in
declaring that he was a registered voter of Barangay Rogero, Bubong, Lanao del
Sur, when in fact he was not. This ground is appropriate for a Petition to Deny
Due Course or to Cancel Certificate of Candidacy.
Amora v. Comelec is applicable to the present controversy. In that case,
similar to the present one, a mayoralty candidate was disqualified by the Comelec
pursuant to a Petition for Disqualification. The petition was filed by one of the
candidates for councilor in the same municipality, on the ground that the CoC had
not been properly sworn to. Amora won in the election, but was disqualified by
the Comelec after he was proclaimed as mayor of Candijay, Bohol. One of the
issues clarified in the said case was the distinction between a Petition for
Disqualification and a Petition to Deny Due Course or to Cancel Certificate of
Candidacy. The Court, in effect, held that the Comelec should have dismissed the
petition outright, since it was premised on a wrong ground. A Petition for
Disqualification has specific grounds different from those of a Petition to Deny
Due Course to or to Cancel Certificate of Candidacy. The latter is anchored on the
false representation by a candidate as to material information in the CoC.
[18]


For a petition for disqualification, the law expressly enumerates the grounds
in Section 68 of Batas Pambansa Blg. 881 as amended, and which was replicated
in Section 4(b) of Comelec Resolution No. 8696. The grounds stated by
respondent in his Petition for Disqualification that Munder was not qualified to
run for not being a registered voter therein was not included in the
enumeration of the grounds for disqualification. The grounds in Section 68 may
be categorized into two. First, those comprising prohibited acts of candidates;
and second, the fact of their permanent residency in another country when that
fact affects the residency requirement of a candidate according to the law.






In the earlier case of Fermin v. Comelec
[19]
, the Court clarified the two
remedies that may be availed of by a candidate to prevent another from running
in an electoral race. The Court held:
The ground raised in the Dilangalen petition is that Fermin allegedly lacked one of the
qualifications to be elected as mayor of Northern Kabuntalan, i.e., he had not
established residence in the said locality for at least one year immediately preceding
the election. Failure to meet the one-year residency requirement for the public office is
not a ground for the disqualification of a candidate under Section 68. The provision
only refers to the commission of prohibited acts and the possession of a permanent
resident status in a foreign country as grounds for disqualification.
. . .
To emphasize, a petition for disqualification, on the one hand, can be premised on
Section 12 or 68 of the [Omnibus Election Code], or Section 40 of the [Local
Government Code]. On the other hand, a petition to deny due course to or cancel a CoC
can only be grounded on a statement of a material representation in the said certificate
that is false. The petitions also have different effects. While a person who is disqualified
under Section 68 is merely prohibited to continue as a candidate, the person whose
certificate is cancelled or denied due course under Section 78 is not treated as a
candidate at all, as if he/she never filed a CoC.
[20]

In Fermin, the Court has debunked the interpretation that a petition for
disqualification covers the absence of the substantive qualifications of a candidate
(with the exception of the existence of the fact of the candidate's permanent
residency abroad). It has, in effect, even struck down a Comelec
Resolution Resolution No. 7800, which enumerated the grounds for a petition
for disqualification to include the non-registration of a candidate as voter in the
locality where he or she is running as a candidate. In ruling as such, Resolution
No. 7800 which was considered as infringement of the powers of the legislature,
the Court reiterated an earlier ruling:
A COMELEC rule or resolution cannot supplant or vary the legislative enactments that
distinguish the grounds for disqualification from those of ineligibility, and the
appropriate proceedings to raise the said grounds. In other words, Rule 25 and
COMELEC Resolution No. 7800 cannot supersede the dissimilar requirements of the law
for the filing of a petition for disqualification under Section 68, and a petition for the
denial of due course to or cancellation of CoC under Section 78 of the OEC.
[21]


Responding to the above ruling, the Comelecs subsequent Resolution on
the same matter deleted the enumerated grounds, interpreted by the Court as
improper for a petition for disqualification, found in Comelec Resolution 7800.
[22]

It is thus clear that the ground invoked by Sarip in his Petition for
Disqualification against Munder the latters alleged status as unregistered voter
in the municipality was inappropriate for the said petition. The said ground
should have been raised in a petition to cancel Munders CoC. Since the two
remedies vary in nature, they also vary in their prescriptive period. A petition to
cancel a CoC gives a registered candidate the chance to question the qualification
of a rival candidate for a shorter period: within 5 days from the last day of their
filing of CoCs, but not later than 25 days from the filing of the CoC sought to be
cancelled.
[23]
A petition for disqualification may be filed any day after the last day
of the filing of CoC but not later than the date of the proclamation.
[24]

The Comelec Second Division stated that the last day of filing of the CoCs
was on 21 December 2009. Thus, the period to file a Petition to Deny Due Course
or to Cancel Certificate of Candidacy had already prescribed when Sarip filed his
petition against Munder.
It was therefore grave abuse of discretion on the part of the Comelec En
Banc to gloss over the issue of whether the petition was one for disqualification
or for the cancellation of CoC. The nature of the petition will determine whether
the action has prescribed, and whether the Commission can take cognizance of
the petition. In directly tackling the factual issues without determining whether it
can properly take cognizance of the petition, the Comelec En Banc committed
grave abuse of discretion.
Assuming arguendo that the Comelec En Banc could answer the factual issue
of Munders non-registration as a voter in Bubong by considering it as a ground
for the disqualification of his candidacy, we find that the Comelec committed
grave abuse of discretion in concluding that Munder the voter was not Munder
the mayoralty candidate. We observe that the Comelec En Banc relied on the
Voter's Certification indicating one Alfaiz Tocalo Munder registering for the first
time in 2003, with 7 May 1984 as birth date, and stating therein that he was 18
years old at the time of the registration. We find this evidence insufficient to
impeach the fact that he

was a registered voter of Bubong, Lanao del Sur. In the first place, the
registration was in 2003, while the election was in 2010. The said evidence would
not negate the fact that in 2010, he had already attained eligibility to run for
mayor. In such a small municipality like Bubong, the likelihood of not being able
to know whether one has a namesake, especially when one is running for a public
office, is very slim. Sarip should have proved that another Alfais Tocalo Munder is
in existence, and that the latter is the registered voter and not herein
petitioner. In such a case, Sarip's remedy is not a Petition for Disqualification, but
a Petition to Deny Due Course or to Cancel Certificate of Candidacy which must
comply with the prescriptive period. Otherwise, his remedy, after Munder has
been proclaimed is to file a quo warranto action with the Regional Trial Court to
prove that Munder lacks the eligibility required by law.
It may be true that in 2003, Munder, who was still a minor, registered
himself as a voter and misrepresented that he was already of legal age. Even if it
was deliberate, we cannot review his past political acts in this petition. Neither
can the Comelec review those acts in an inappropriate remedy. In so doing, it
committed grave abuse of discretion, and the act resulting therefrom must be
nullified.
With this conclusion, Sarip's petition has become moot. There is no longer
any issue of whether to apply the rule on succession to an elective office, since
Munder is necessarily established in the position for which the people have
elected him.
IN VIEW OF THE FOREGOING, G.R. No. 194076 is hereby GRANTED. The
Comelec En Banc Resolution dated 4 October 2010 which granted the petition to
disqualify Alfais Tocalo Munder as Mayor of Bubong, Lanao del Sur is
hereby NULLIFIED and SET ASIDE. The Comelec Second Division Resolution dated
29 June 2010 dismissing the petition for disqualification filed by Atty. Tago R.
Sarip against Alfais Tocalo Munder is REINSTATED. G.R. No. 194160 is
hereby DISMISSED. For having been rendered moot by this Decision, the
Temporary Restraining Order we issued on 18 January 2011 in favor of Alfais
Tocalo Munder is hereby made permanent.

SO ORDERED.




MARIA LOURDES P. A. SERENO
Associate Justice



WE CONCUR:



RENATO C. CORONA
Chief Justice




ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice




TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice




DIOSDADO M. PERALTA LUCAS P. BERSAMIN
Associate Justice Associate Justice











MARIANO C. DEL CASTILLO ROBERTO A. ABAD
Associate Justice Associate Justice




MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ
Associate Justice Associate Justice




JOSE CATRAL MENDOZA BIENVENIDO L. REYES
Associate Justice Associate Justice





ESTELA M. PERLAS-BERNABE
Associate Justice



C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.



RENATO C. CORONA
Chief Justice




*
Penned by Commissioner Rene V. Sarmiento; with the concurrence of Chairman Jose A. R. Melo, Commissioners
Lucenito N. Tagle, Armando C. Velasco, Gregorio Y. Larrazabal; and the dissent of Nicodemo T. Ferrer, Elias R.
Yusoph.
[1]
Rollo (G.R. No. 194076) pp 48-54; Rollo (G.R. No. 194160) pp 32-38.
[2]
Rendered per curiam by the Second Division composed of Presiding Commissioner Nicodemo T. Ferrer, and
Commissioners Lucenito N. Tagle (on leave) and Elias R. Yusoph.
[3]
Comelec Resolution No. 8678, Guidelines on the Filing of Certificates of Candidacy and Nomination of Official
Candidates of Registered Political Parties in Connection with the May 10, 2010 National and Local Elections,
promulgated on 06 October 2009.
[4]
See also Section 78, Omnibus Election Code.
[5]
Rollo (G.R. No. 194076), pp 57-65; Rollo (G.R. No. 194169), pp 57-65.
[6]
Id. at 69; 53.
[7]
Id. at 70; 54.
[8]
Id. at 207; 52.
[9]
Rollo (G.R. No. 194076), pp 75-77.
[10]
Id. at 75-82.
[11]
Id. at 44-46.
[12]
Id. at 114-122.
[13]
Id at 51.
[14]
Id at 52-53.
[15]
Id. at 215-219.
[16]
1987 Constitution, Art. IX, Sec. 2(1).

[17]
G.R. No. 192280. January 25, 2011, 640 SCRA 473.
[18]
See Id. at 482-483.
[19]
G.R. No. 179695, 18 December 2008, 574 SCRA 782.
[20]
Id. at 794-796.
[21]
Id. at 798, citing Loong v. Commission on Elections, G.R. No. 93986, 22 December 1992, 216 SCRA 760, 767,
cited by Chief Justice Hilario G. Davide, Jr. (ret.) in his Dissenting Opinion in Aquino v. Commission on
Elections, G.R. No. 120265, 18 September 1995, 248 SCRA 400, 445-447.
[22]
See Comelec Resolution No. 8696.
[23]
OEC, Sec. 69.
[24]
Comelec Resolution No. 8696, Section 4(B).

EN BANC

FERNANDO V.
GONZALEZ,
Petitioner,
- versus -
G.R. No. 192856
Present:
CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,*
LEONARDO-DE CASTRO,
BRION,
*

PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
COMMISSION ON
ELECTIONS, RENO G.
LIM, STEPHEN C.
BICHARA and THE
SPECIAL
BOARD OF
CANVASSERS
constituted per Res.
dated July
23, 2010 of the
Commission on
Elections En Banc,
Respondents.
Promulgated:
March 8, 2011
x- - - - - - - - - -- - - - - - - - - - - - - - x
DECISION

VILLARAMA, JR., J.:
This is a petition for certiorari, prohibition and mandamus under Rule 65 in
relation to Rule 64 of the 1997 Rules of Civil Procedure, as amended,
assailing the Resolution[1] dated May 8, 2010 of the Commission on
Elections (COMELEC) Second Division and Resolution[2] dated July 23, 2010
of the Commission En Banc, in SPA No. 10-074 (DC).
The facts are uncontroverted.
Petitioner Fernando V. Gonzalez and private respondent Reno G. Lim both
filed certificates of candidacy for the position of Representative of the 3rd
congressional district of the Province of Albay in the May 10, 2010
elections. Lim was the incumbent congressman of the 3rd district while
Gonzalez was former Governor of Albay, having been elected to said position
in 2004 but lost his re-election bid in 2007.
On March 30, 2010, a Petition for Disqualification and Cancellation of
Certificate of Candidacy (COC)[3] was filed by Stephen Bichara [SPA No.
10-074 (DC)] on the ground that Gonzalez is a Spanish national, being the
legitimate child of a Spanish father and a Filipino mother, and that he failed
to elect Philippine citizenship upon reaching the age of majority in
accordance with the provisions of Commonwealth Act (C.A.) No. 625. It was
further alleged that Gonzalezs late registration of his certificate of birth with
the Civil Registry of Ligao City on January 17, 2006, even if accompanied by
an affidavit of election of Philippine citizenship, was not done within a
reasonable time as it was in fact registered 45 years after Gonzalez reached
the age of majority on September 11, 1961.
In his Answer,[4] Gonzalez denied having willfully made false and
misleading statement in his COC regarding his citizenship and pointed out
that Bichara had filed the wrong petition under Section 68 of the Omnibus
Election Code (OEC) to question his eligibility as a candidate. Gonzalez also
argued that the petition which should have been correctly filed under Section
78 of the OEC was filed out of time. He asserted that he is a Filipino citizen
as his Alien Certificate of Registration was issued during his
minority. However, he took an Oath of Allegiance to the Republic of the
Philippines before the Justice of the Peace in Ligao, Albay on his
21
st
birthday on September 11, 1961. Since then he had comported himself
as a Filipino considering that he is married to a Filipina; he is a registered
voter who voted during elections; he has been elected to various local
positions; he holds a Philippine passport; and most importantly, he has
established his life in the Philippines as a Filipino. Gonzalez contended that
he is deemed a natural-born Filipino citizen under the 1987
Constitution which includes in the definition of natural-born citizens [t]hose
born before January 17, 1973, of Filipino mothers, who elect Philippine
citizenship upon reaching the age of majority.
On May 8, 2010, the COMELECs Second Division issued the assailed
resolution which decreed:
WHEREFORE, premises considered, we resolve to, as we do hereby, GRANT
this Petition. Respondent Fernando Vallejo Gonzalez is hereby declared
disqualified to be a candidate for the position of Member of the House of
Representatives, 3
rd
District, Province of Albay, in the forthcoming National
and Local Elections on May 10, 2010.
SO ORDERED.[5]
Finding the petition to be both a petition for disqualification and cancellation
of COC, the Second Division ruled that the same was filed on time. On the
election of Philippine citizenship by Gonzalez, it held that what Gonzalez
submitted is a mere photocopy of his oath of allegiance which was not duly
certified by the National Statistics Office, and hence there was no compliance
with the requirement of filing with the nearest civil registry, the last act
required of a valid oath of allegiance under C.A. No. 625. Further, the
Second Division found that in the late registration of Gonzalezs birth on
January 17, 2006, he declared that he is a citizen of the Philippines; this at
best, was his own conclusion, and at worst, conflicts with his purported oath
of allegiance for it would have been a superfluity to express his choice of
Philippine citizenship by taking the oath of allegiance if he was already a
Filipino citizen. And the fact that Gonzalez attended formal schooling in this
country, worked in private firms and in the government service, should not
take the place of the stringent requirements of constitutional and statutory
provisions on acquisition of Philippine citizenship.[6]
Gonzalez thru counsel received a copy of the aforesaid resolution on May 11,
2010 at 5:20 p.m.[7] On even date, Lim petitioned the Provincial Board of
Canvassers (PBOC) to consider the votes cast for Gonzalez as stray or not
counted and/or suspend his proclamation, citing the Second Divisions May
8, 2010 resolution disqualifying Gonzalez as a candidate for the May 10,
2010 elections.[8] The PBOC, however, dismissed the petition stating that
the period for filing of a motion for reconsideration of the COMELEC
resolution has not yet lapsed, and hence the same is not yet final and
executory.[9] Lim appealed the PBOCs dismissal of his petition to the
COMELEC (SPC No. 10-006) but his appeal was eventually dismissed after
he filed a motion to withdraw the same.[10]
Based on the results of the counting and canvassing of votes, Gonzalez
emerged as the winner having garnered a total of 96,000 votes while Lim
ranked second with 68,701 votes. On May 12, 2010, the PBOC officially
proclaimed Gonzalez as the duly elected Representative of the 3
rd
district of
Albay. Gonzalez took his oath of office on the same day.[11] On May 13,
2010, Bichara filed a Very Urgent Motion to Suspend the Effects of the
Proclamation of Fernando V. Gonzalez.[12]
On May 14, 2010, Gonzalez filed a motion for reconsideration of the May 8,
2010 resolution. Gonzalez reiterated that the Second Divisions finding that
Bicharas petition is both a petition for disqualification and to cancel COC is
not borne by the petition itself and contrary to Section 68 of the OEC and
COMELEC Resolution No. 8696. Applying Section 78 of the OEC which is the
proper petition based on alleged deliberate misrepresentation and false
statement in the COC, Gonzalez contended that Bicharas petition was filed
out of time. It was further argued that the subsequent election,
proclamation and taking of oath of office of Gonzalez are events warranting
the dismissal of SPA No. 10-074 (DC). Stressing that the voice of the
people must be respected in this case, Gonzalez pointed out that his not
being a Filipino was never an issue in the previous elections where he ran
and won (Ligao City Mayor for three terms and Governor of Albay from
2004-2007). He claimed that the petition filed by Bichara, who ran against
Gonzalezs wife, Linda Passi Gonzalez (for re-election as Ligao City Mayor) in
the recently concluded elections was indicative of harassment considering
that a similar petition for disqualification and cancellation of COC was also
filed against his wife by Anna Marie C. Bichara, said to be a sister of the
petitioner in SPA No. 10-074 (DC).[13]
On May 22, 2010, Lim filed a Motion for Leave to Intervene as Petitioner
stating that being a candidate for the same position, he has legal interest in
the success of the petition in SPA No. 10-074 (DC).[14]
In its Resolution dated July 23, 2010, the COMELEC En Bancdenied the
motion for reconsideration and affirmed its finding that Gonzalez failed to
prove with sufficient evidence that he had fully complied with the
requirements for electing Philippine citizenship under C.A. No. 625. It
likewise emphasized that the motion for reconsideration filed by Gonzalez
was pro forma and hence it did not suspend the effects of the May 8, 2010
resolution disqualifying him as a candidate, conformably with Sections 1 and
4, Rule 19 of the COMELEC Rules of Procedure in relation to Section 7 of
COMELEC Resolution No. 8696. Invoking its power to suspend and set aside
the proclamation of winning candidates pursuant to Section 16 of COMELEC
Resolution No. 8678 in relation to Section 6 of Republic Act (R.A.) No.
6646,[15] the Commission held that the proclamation of Gonzalez by the
PBOC was premature and illegal. Finally, the motion to intervene filed by Lim
was found to be proper and was accordingly granted.
The dispositive portion of the resolution reads:
WHEREFORE, premises considered, the Commission (En Banc) RESOLVED
to, as it does hereby:
1. ANNUL the invalid proclamation of the respondent Fernando V. Gonzalez
as the elected Member of the House of Representative as he is
DISQUALIFIED to run and be voted for the position of Member of the House
of Representatives in the May 10, 2010 elections;
2. DENY for utter lack of merit the Motion for Reconsideration of respondent
FERNANDO V. GONZALEZ; and
3. AFFIRM the Resolution of the Second Division declaring respondent
Fernando V. Gonzalez DISQUALIFIED to run and be voted for as such.
4. Immediately CONSTITUTE a Special Provincial Board of Canvassers of
Albay who will PROCLAIM RENO G. LIM as the duly elected Member of the
House of Representative of the Third District of Albay for being the bona fide
candidate who garnered the highest number of votes in the May 10, 2010
elections.
SO ORDERED.[16]
Commissioner Rene V. Sarmiento dissented from the majority ruling denying
the motion for reconsideration of Gonzalez, stating that the people of the
3
rd
District of Albay has already spoken as to who is their choice of
Representative in the Lower House of Congress and in case of doubt as to
the qualification of the winning candidate, the doubt will be resolved in favor
of the will of the people.[17]
A separate opinion was written by Commissioner Armando C. Velasco stating
that the COMELEC no longer has jurisdiction to decide on the matter of the
qualifications of Gonzalez, the winning candidate who had already been
proclaimed, taken his oath and assumed the office as Representative of the
3
rd
District of Albay, for which reason the COMELECs jurisdiction ends and
that of the House of Representatives Electoral Tribunal (HRET) begins. He
likewise disagreed with the majoritys conclusion that Gonzalezs
proclamation was invalid considering that: (1) records are bereft of
indication that the PBOC had been ordered to suspend the proclamation of
Gonzalez; (2) the May 8, 2010 Resolution disqualifying Gonzalez had not yet
become final and executory; (3) the date of said resolution was not a
previously fixed date as required by Section 6 of COMELEC Resolution No.
8696, as the records do not show that the parties have been informed of
said date of promulgation beforehand; and (4) the three-day period for the
filing of a motion for reconsideration should be reckoned from the date of
receipt by Gonzalez of copy of the resolution which is May 11, 2010, hence
the PBOC acted well within its authority in proclaiming
Gonzalez. Commissioner Velasco also disagreed with the majority ruling
that Gonzalezs motion for reconsideration was pro forma, and maintained
that said motion was timely filed which effectively suspended the execution
of the May 8, 2010 Resolution. Lastly, he found the order to constitute a
Special Provincial Board of Canvassers for the purpose of proclaiming
intervenor Lim without basis. Since the May 8, 2010 Resolution was not yet
final on election day, the votes cast for Gonzalez cannot be considered stray.
Besides, a minority or defeated candidate like Lim cannot be deemed elected
to the office in cases where the winning candidate is declared ineligible.[18]
Gonzalez filed the instant petition on July 29, 2010 while Lim filed a Very
Urgent Motion For the Issuance of Writ of Execution which the COMELEC
granted on August 5, 2010.[19] On August 18, 2010, Lim was proclaimed
by a Special Board of Canvassers and subsequently took his oath of office
before Assistant State Prosecutor Nolibien N. Quiambao.[20]
In a letter dated August 23, 2010, Lim requested Speaker Feliciano R.
Belmonte, Jr. for the administration of his oath and registration in the Roll of
the House of Representatives representing the 3
rd
District of
Albay. However, Speaker Belmonte refused to grant Lims request saying
that the issue of qualification of Gonzalez for the position of Member of the
House of Representatives is within the exclusive jurisdiction of the HRET,
citing this Courts ruling in Limkaichong v. Commission on
Elections[21]/[22].
Gonzalez contends that the COMELEC gravely abused its discretion in issuing
the assailed resolutions insofar as
1. It would install the Respondent Reno G. Lim as the Third District of
Albays Representative even though Lim never won the election, and who
never became a legal party in the case;
2. It would hold that the petitioner Gonzalez is not a Filipino citizen;
3. It would go on to convene a Special Board of Canvassers of Albay
created for the sole purpose of proclaiming the respondent Lim as the actual
winner of the May 10 elections in the Third District of Albay;
x x x the Commissions resolutions, insofar as it was:
4. Issued with such great speed and haste that its mistakes are glaring;
5. Issued without the required (valid) certification;
6. Insofar as it did not hold that the respondent Reno [G.] Lim had
committed more than one act of forum-shopping.[23]
In his Comment,[24] the Solicitor General found no grave abuse of
discretion committed by the COMELEC in issuing the assailed resolutions
stating that the Commission correctly ruled that Gonzalez is not a natural-
born citizen of the Philippines by his failure to perfect his election of
Philippine citizenship in accordance with C.A. No. 625 and R.A. No. 562. He
likewise adopted the position of the COMELEC that Limkaichong is not
applicable to the present case and that the motion for reconsideration filed
by Gonzalez was pro forma.
The petition presents the following issues for resolution: (1) whether the
petition in SPA No. 10-074 (DC) was timely filed; (2) whether Gonzalez was
validly proclaimed as the duly elected Representative of the 3
rd
District of Albay in
the May 10, 2010 elections; and (3) whether the COMELEC had lost jurisdiction over the issue of Gonzalezs
citizenship.
We find the petition meritorious.
A petition to cancel a candidates COC may be filed under Section 78 of the
OEC which provides:
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. (Underlining supplied.)
A petition for disqualification of a candidate may also be filed pursuant to
Section 68 of the same Code which states:
SEC. 68. Disqualifications. -- Any candidate who, in an action or protest
in which he is a party is declared by final decision of a competent court
guilty of, or found by the Commission of having: (a) given money or other
material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in
excess of that allowed by this Code; (d) solicited, received or made any
contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and
cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or
if he has been elected, from holding the office. Any person who is a
permanent resident of or an immigrant to a foreign country shall not be
qualified to run for any elective office under this Code, unless said person
has waived his status as permanent resident or immigrant of a foreign
country in accordance with the residence requirement provided for in the
election laws.
The prohibited acts covered by Section 68 refer to election campaign or
political activity outside the campaign period (Section 80); removal,
destruction or defacement of lawful election propaganda (Section 83);
certain forms of election propaganda (Section 85); violation of rules and
regulations on election propaganda through mass media; coercion of
subordinates (Section 261 [d]); threats, intimidation, terrorism, use of
fraudulent device or other forms of coercion (Section 261 [e]); unlawful
electioneering (Section 261 [k]); release, disbursement or expenditure of
public funds (Section 261 [v]); solicitation of votes or undertaking any
propaganda on the day of the election (Section 261 [cc], sub-par.6).
As to the ground of false representation in the COC under Section 78, we
held in Salcedo II v. Commission on Elections[25] that in order to justify the
cancellation of COC, it is essential that the false representation mentioned
therein pertain 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. Although
the law does not specify what would be considered as a material
representation, the Court concluded that this refers to qualifications for
elective office. Citing previous cases in which the Court interpreted this
phrase, we held that Section 78 contemplates statements
regarding age,[26]residence[27] and citizenship or non-possession of
natural-born Filipino status.[28] Furthermore, aside from the requirement of
materiality, the false representation must consist of a deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a candidate
ineligible. In other words, it must be made with an intention to deceive the
electorate as to ones qualification for public office.[29]
Significantly, we pointed out in Salcedo II the two remedies available for
questioning the qualifications of a candidate, thus:
There are two instances where a petition questioning
thequalifications of a registered candidate to run for the office for
which his certificate of candidacy was filed can be raised under the
Omnibus Election Code (B.P. Blg. 881), to wit:
(1) Before election, pursuant to Section 78 thereof which provides that:
x x x
and
(2) After election, pursuant to Section 253 thereof, viz:
Sec. 253. Petition for quo warranto. - Any voter contesting the election of
any Member of the Batasang Pambansa, regional, provincial, or city officer
on the ground of ineligibility or of disloyalty to the Republic of the Philippines
shall file a sworn petition for quo warranto with the Commission within ten
days after the proclamation of the results of the election.
(emphasis supplied)
The only difference between the two proceedings is that, under Section 78,
the qualifications for elective office are misrepresented in the certificate of
candidacy and the proceedings must be initiated before the elections,
whereas a petition for quo warranto under Section 253 may be brought on
the basis of two grounds - (1) ineligibility or (2) disloyalty to the Republic of
the Philippines, and must be initiated within ten days after the proclamation
of the election results. Under Section 253, a candidate is ineligible if he is
disqualified to be elected to office, and he is disqualified if he lacks any of
the qualifications for elective office.[30] (Emphasis supplied.)
Clearly, the only instance where a petition questioning thequalifications of a
candidate for elective office can be filed before election is when the petition
is filed under Section 78 of the OEC.
The petition in SPA No. 10-074 (DC) based on the allegation that Gonzalez
was not a natural-born Filipino which was filed before the elections, is in the
nature of a petition filed under Section 78. The recitals in the petition in said
case, however, state that it was filed pursuant to Section 4 (b) of COMELEC
Resolution No. 8696 and Section 68 of the OEC to disqualify a candidate for
lack of qualifications or possessing some grounds for disqualification. The
COMELEC treated the petition as one filed both for
disqualification and cancellation of COC, with the effect that Section 68, in
relation to Section 3, Rule 25 of the COMELEC Rules of Procedure, is
applicable insofar as determining the period for filing the petition.
Rule 25 of the COMELEC Rules of Procedure on Disqualification of Candidates
provides:
Section 1. Grounds for Disqualification. Any candidate who does not
possess all the qualifications of a candidate as provided for by the
Constitution or by existing law or who commits any act declared by law to be
grounds for disqualification may be disqualified from continuing as a
candidate.
x x x x
Sec. 3. Period to File Petition. -- The petition shall be filed any day after the
last day for filing of certificates of candidacy butnot later than the date of
proclamation. (Emphasis supplied.)
On the other hand, the procedure for filing a petition for cancellation of COC
is covered by Rule 23 of the COMELEC Rules of Procedure, which provides:
Section 1. Grounds for Denial of Certificate of Candidacy. -- A petition to
deny due course to or cancel a certificate of candidacy for any elective office
may be filed with the Law Department of the Commission by any citizen of
voting age or a duly registered political party, organization, or coalition or
political parties on the exclusive ground that any material representation
contained therein as required by law is false.
Sec. 2. Period to File Petition. The petition must be filedwithin five (5)
days following the last day for the filing of certificate of candidacy.
x x x x (Emphasis supplied.)
In Loong v. Commission on Elections,[31] we categorically declared that the
period for filing a petition for cancellation of COC based on false
representation is covered by Rule 23 and not Rule 25 of the COMELEC Rules
of Procedure. Further, we held that Section 3 of Rule 25 allowing the filing
of a petition at any time after the last day for filing of COCs but not later
than the date of proclamation, is merely a procedural rule that cannot
supersede Section 78 of the OEC. We quote the following pertinent
discussion in said case:
x x x Section 78 of the same Code states that in case a person filing a
certificate of candidacy has committed false representation, a petition to
cancel the certificate of the aforesaid person may be filed within twenty-five
(25) days from the time the certificate was filed.
Clearly, SPA No. 90-006 was filed beyond the 25-day period prescribed by
Section 78 of the Omnibus Election Code.
We do not agree with private respondent Ututalums contention that the
petition for disqualification, as in the case at bar, may be filed at any time
after the last day for filing a certificate of candidacy but not later than the
date of proclamation, applying Section 3, Rule 25 of the Comelec Rules of
Procedure.
x x x x
The petition filed by private respondent Ututalum with the
respondent Comelec to disqualify petitioner Loong on the ground
that the latter made a false representation in his certificate of
candidacy as to his age, clearly does not fall under the grounds of
disqualification as provided for in Rule 25 but is expressly covered
by Rule 23 of the Comelec Rules of Procedure governing petitions to
cancel certificate of candidacy. Moreover, Section 3, Rule 25 which
allows the filing of the petition at any time after the last day for the
filing of certificates of candidacy but not later than the date of
proclamation, is merely a procedural rule issued by respondent
Commission which, although a constitutional body, has no legislative
powers. Thus, it can not supersede Section 78 of the Omnibus
Election Code which is a legislative enactment.
We also do not find merit in the contention of respondent Commission that
in the light of the provisions of Section 6 and 7 of Rep. Act No. 6646, a
petition to deny due course to or cancel a certificate of candidacy may be
filed even beyond the 25-day period prescribed by Section 78 of the Code,
as long as it is filed within a reasonable time from the discovery of the
ineligibility.
Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted:
SEC. 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.
SEC. 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.
It will be noted that nothing in Sections 6 or 7 modifies or alters the
25-day period prescribed by Section 78 of the Code for filing the
appropriate action to cancel a certificate of candidacy on account of
any false representation made therein. On the contrary, said Section
7 affirms and reiterates Section 78 of the Code.
We note that Section 6 refers only to the effects of a disqualification case
which may be based on grounds other than that provided under Section 78
of the Code. But Section 7 of Rep. Act No. 6646 also makes the effects
referred to in Section 6 applicable to disqualification cases filed under
Section 78 of the Code. Nowhere in Sections 6 and 7 of Rep. Act No.
6646 is mention made of the period within which these
disqualification cases may be filed. This is because there are
provisions in the Code which supply the periods within which a
petition relating to disqualification of candidates must be filed, such
as Section 78, already discussed, and Section 253 on petitions
for quo warranto.
Thus, if a person qualified to file a petition to disqualify a certain candidate
fails to file the petition within the 25-day period prescribed by Section 78 of
the Code for whatever reasons, the election laws do not leave him
completely helpless as he has another chance to raise the disqualification of
the candidate by filing a petition for quo warranto within ten (10) days from
the proclamation of the results of the election, as provided under Section
253 of the Code. x x x[32] (Additional emphasis supplied.)
COMELEC Resolution No. 8696 entitled Rules on Disqualification Cases Filed
in Connection with the May 10, 2010 Automated National and Local
Elections was promulgated on November 11, 2009. Section 4 thereof
provides:
SEC. 4. Procedure in filing petitions. For purposes of the preceding
sections, the following procedure shall be observed:
A. PETITION TO DENY DUE COURSE TO OR CANCEL CERTIFICATE OF
CANDIDACY
1. A verified petition to deny due course or to cancel certificate of candidacy
may be filed by any person within five (5) days from the last day for the
filing of certificate of candidacy but not later than twenty-five (25) days from
the filing of certificate of candidacy under Section 78 of the Omnibus Election
Code (OEC);
x x x x
B. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SECTION 68 OF
THE OMNIBUS ELECTION CODE AND PETITION TO DISQUALIFY FOR LACK
OF QUALIFICATIONS OR POSSESSING SOME GROUNDS FOR
DISQUALIFICATION
1. A verified petition to disqualify a candidate pursuant to Section 68 of the
OEC and the verified petition to disqualify a candidate for lack of
qualifications or possessing some grounds for disqualification may be filed on
any day after the last day for filing of certificates of candidacy but not later
than the date of proclamation;
x x x x
As can be gleaned, Section 4(B) of Resolution No. 8696 allowing a petition to
disqualify a candidate based on his lack ofqualifications for elective office
such as age, residence and citizenship to be filed on any day after the last
day for filing of certificates of candidacy but not later than the date of
proclamation (the period provided in Section 68 of the OEC), instead of the
period for filing under Section 78 (not later than twenty-five days from the
filing of the certificate of candidacy) is similar to Rule 25 of the COMELEC
Rules of Procedure. Following our ruling in Loong v. Commission on
Elections,[33]we find that Section 4(B) of Resolution No. 8696 represents
another attempt to modify by a mere procedural rule the statutory period
for filing a petition to cancel COC on the ground of false representation
therein regarding a candidatesqualifications. Like Rule 25 of the COMELEC
Rules of Procedure, Section 4(B) of Resolution No. 8696 would supplant the
prescribed period of filing of petition under Section 78 with that provided in
Section 68 even if the latter provision does not at all cover the false
representation regarding age, residence and citizenship which may be raised
in a petition under Section 78. Indeed, if the purpose behind this rule
promulgated by the COMELEC allowing a petition to cancel COC based on
the candidates non-compliance with constitutional and statutory
requirements for elective office, such as citizenship, to be filed even beyond
the period provided in Section 78 was simply to remedy a perceived
procedural gap though not expressly stated in Resolution No. 8696, the
Court had already rejected such justification. Thus, we declared in Loong:
It is true that the discovery of false representation as to material facts
required to be stated in a certificate of candidacy, under Section 74 of the
Code, may be made only after the lapse of the 25-day period prescribed by
Section 78 of the Code, through no fault of the person who discovers such
misrepresentations and who would want the disqualification of the candidate
committing the misrepresentation. It would seem, therefore, that there
could indeed be a gap between the time of the discovery of the
misrepresentation, (when the discovery is made after the 25-day period
under Sec. 78 of the Code has lapsed) and the time when the proclamation
of the results of the election is made. During this so-called gap the would-
be petitioner (who would seek the disqualification of the candidate) is left
with nothing to do except to wait for the proclamation of the results, so that
he could avail of a remedy against the misrepresenting candidate, that is, by
filing a petition for quo warranto against him. Respondent Commission sees
this gap in what it calls a procedural gap which, according to it, is
unnecessary and should be remedied.
At the same time, it can not be denied that it is the purpose and intent of
the legislative branch of the government to fix a definite time within which
petitions or protests related to eligibility of candidates for elective offices
must be filed, as seen in Sections 78 and 253 of the Code. Respondent
Commission may have seen the need to remedy this so-called
procedural gap, but it is not for it to prescribe what the law does
not provide, its function not being legislative. The question of
whether the time to file these petitions or protests is too short or
ineffective is one for the Legislature to decide and
remedy.[34] (Emphasis supplied.)
In the more recent case of Fermin v. Commission on Elections,[35] we
stressed that a petition filed under Section 78 must not be interchanged or
confused with one filed under Section 68. A petition which is properly a
Section 78 petition must therefore be filed within the period prescribed
therein, and a procedural rule subsequently issued by COMELEC cannot
supplant this statutory period under Section 78. We further distinguished
the two petitions as to their nature, grounds and effects, to wit:
Lest it be misunderstood, the denial of due course to or the cancellation of
the CoC is not based on the lack of qualifications but on a finding that the
candidate made a material representation that is false, which may relate to
the qualifications required of the public office he/she is running for. It is
noted that the candidate states in his/her CoC that he/she is eligible for the
office he/she seeks. Section 78 of the OEC, therefore, is to be read in
relation to the constitutional and statutory provisions
on qualifications or eligibility for public office. If the candidate
subsequently states a material representation in the CoC that is
false, the COMELEC, following the law, is empowered to deny due
course to or cancel such certificate. Indeed, the Court has already
likened a proceeding under Section 78 to a quo warranto proceeding under
Section 253 of the OEC since they both deal with the eligibility or
qualification of a candidate, with the distinction mainly in the fact that a
Section 78 petition is filed before proclamation, while a petition for quo
warranto is filed after proclamation of the winning candidate.
At this point, we must stress that a Section 78 petition ought not to be
interchanged or confused with a Section 68 petition. They are
different remedies, based on different grounds, and resulting in
different eventualities. Private respondents insistence, therefore, that the
petition it filed before the COMELEC in SPA No. 07-372 is in the nature of a
disqualification case under Section 68, as it is in fact captioned a Petition for
Disqualification, does not persuade the Court.
x x x x
Considering that the Dilangalen petition does not state any of these
grounds for disqualification, it cannot be categorized as a Section
68 petition.
x x x x
In support of his claim that he actually filed a petition for disqualification
and not a petition to deny due course to or cancel a CoC, Dilangalen takes
refuge in Rule 25 of the COMELEC Rules of Procedure, specifically Section 1
thereof, to the extent that it states, [a]ny candidate who does not possess
all the qualifications of a candidate as provided for by the Constitution or by
existing law x x x may be disqualified from continuing as a candidate, and
COMELEC Resolution No. 7800 (Rules Delegating to COMELEC Field Officials
the Authority to Hear and Receive Evidence in Disqualification Cases Filed in
Connection with the May 14, 2007 National and Local Elections x x x
x x x x
We disagree. A COMELEC rule or resolution cannot supplant or vary
the legislative enactments that distinguish the grounds for
disqualification from those of ineligibility, and the appropriate
proceedings to raise the said grounds. In other words, Rule 25 and
COMELEC Resolution No. 7800 cannot supersede the dissimilar
requirements of the law for the filing of a petition for
disqualification under Section 68, and a petition for the denial of
due course to or cancellation of CoC under Section 78 of the OEC. As
aptly observed by the eminent constitutionalist, Supreme Court Justice
Vicente V. Mendoza, in his separate opinion inRomualdez-Marcos v.
Commission on Elections:
x x x x
Having thus determined that the Dilangalen petition is one under Section 78
of the OEC, the Court now declares that the same has to comply with the
25-day statutory period for its filing.Aznar v. Commission on
Elections and Loong v. Commission on Elections give ascendancy to the
express mandate of the law that 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. Construed in relation to reglementary periods
and the principles of prescription, the dismissal of Section 78 petitions filed
beyond the 25-day period must come as a matter of course.
We find it necessary to point out that Sections 5 and 7 of Republic
Act (R.A.) No. 6646, contrary to the erroneous arguments of both
parties, did not in any way amend the period for filing Section 78
petitions. While Section 7 of the said law makes reference to Section 5 on
the procedure in the conduct of cases for the denial of due course to the
CoCs of nuisance candidates (retired Chief Justice Hilario G. Davide, Jr., in
his dissenting opinion in Aquino v. Commission on Elections explains that
the procedure hereinabove provided mentioned in Section 7 cannot be
construed to refer to Section 6 which does not provide for a procedure but
for the effects of disqualification cases, [but] can only refer to the procedure
provided in Section 5 of the said Act on nuisance candidates x x x.), the
same cannot be taken to mean that the 25-day period for filing Section 78
petitions under the OEC is changed to 5 days counted from the last day for
the filing of CoCs. The clear language of Section 78 certainly cannot be
amended or modified by the mere reference in a subsequent statute
to the use of a procedure specifically intended for another type of
action. Cardinal is the rule in statutory construction that repeals by
implication are disfavored and will not be so declared by the Court unless the
intent of the legislators is manifest. In addition, it is noteworthy
that Loong, which upheld the 25-day period for filing Section 78 petitions,
was decided long after the enactment of R.A. 6646. In this regard, we
therefore find as contrary to the unequivocal mandate of the law, Rule 23,
Section 2 of the COMELEC Rules of Procedure x x x.
x x x x
As the law stands, the petition to deny due course to or cancel a CoC
may be filed at any time not later than twenty-five days from the
time of the filing of the certificate of candidacy.
Accordingly, it is necessary to determine when Fermin filed his CoC in order
to ascertain whether the Dilangalen petition filed on April 20, 2007 was well
within the restrictive 25-day period. If it was not, then the COMELEC should
have, as discussed above, dismissed the petition outright.
x x x x[36] (Additional emphasis supplied.)
Since the petition in SPA No. 10-074 (DC) sought to cancel the COC filed by
Gonzalez and disqualify him as a candidate on the ground of false
representation as to his citizenship, the same should have been filed within
twenty-five days from the filing of the COC, pursuant to Section 78 of the
OEC. Gonzales filed his COC on December 1, 2009. Clearly, the petition for
disqualification and cancellation of COC filed by Lim on March 30, 2010 was
filed out of time. The COMELEC therefore erred in giving due course to the
petition.
Even assuming arguendo that the petition in SPA No. 10-074 (DC) was
timely filed, we find that the COMELEC gravely erred when it held that the
proclamation of Gonzalez by the PBOC of Albay on May 12, 2010 was
premature and illegal.
Section 72 of the OEC, was amended by Section 6 of R.A. No. 6646 which
reads:
Section 6. Effect of Disqualification Case. -- Any candidate who has been
declared by final judgmentupon 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 supplied.) 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,
In its July 23, 2010 Resolution, the COMELEC ruled that the motion for
reconsideration of the Second Divisions May 8, 2010 Resolution filed by
Gonzalez on May 14, 2010 was pro formaand hence did not suspend the
execution of the May 8, 2010 resolution disqualifying him as a candidate.
Section 7 of COMELEC Resolution No. 8696 provides:
SEC. 7. Motion for reconsideration. A motion to reconsider a Decision,
Resolution, Order or Ruling of a Division shall be filed within three (3) days
from the promulgation thereof. Such motion, if not pro-forma,
suspends the execution or implementation of the Decision,
Resolution, Order or Ruling.
Within twenty-four (24) hours from the filing thereof, the Clerk of the
Commission shall notify the Presiding Commissioner. The latter shall within
two (2) days thereafter, certify the case to the Commission en banc.
The Clerk of the Commission shall calendar the Motion for Reconsideration
for the resolution of the Commission en bancwithin three (3) days from the
certification thereof.
Section 13, Rule 18 of the COMELEC Rules of Procedure on the Finality of
Decisions or Resolutions provides that
(c) Unless a motion for reconsideration is seasonably filed, a decision or
resolution of a Division shall become final and executory after the lapse of
five (5) days in Special actions and Special cases and after fifteen (15) days
in all other actions or proceedings, following its promulgation.
Section 2, Rule 19 of the COMELEC Rules of Procedure also states:
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 (5) days from the promulgation thereof. Such motion, if not pro
forma, suspends the execution or implementation of the decision, resolution,
order or ruling.
The Commission En Banc in its July 23, 2010 Resolution said:
As found by this Commission, the motion for reconsideration merely
mentioned that respondent was already proclaimed as the winning candidate
for Representative of the 3
rd
District of Albay. Nothing was, however,
averred nor any document was submitted to attest to the fact that that
respondent has complied with all the legal requirements and procedure for
the election of Philippine citizenship as laid down in Commonwealth Act No.
625 which specifically requires that the oath of allegiance should be filed
with the nearest civil registry.[37]
We have held that mere reiteration of issues already passed upon by the
court does not automatically make a motion for reconsideration pro forma.
What is essential is compliance with the requisites of the Rules.[38] 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, 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, or (3) it failed to substantiate the alleged errors,
or (4) it merely alleged that the decision in question was contrary to law, or
(5) the adverse party was not given notice thereof.[39]
In the case at bar, the motion for reconsideration[40] filed by Gonzalez
failed to show that it suffers from the foregoing defects. Although the
motion repeatedly stressed that the people of the Third District of Albay had
spoken through the winning margin of votes for Gonzalez that they chose
the latter to represent them in the House of Representatives, it also
reiterated his position that the petition filed by Bichara is time-barred,
adding that it was just an act of political harassment. But the main
argument asserts that the evidence of petitioner Bichara was insufficient to
justify the Second Divisions ruling that Gonzalez is not a natural-born
Filipino and hence disqualified to be a candidate for the position of Member
of the House of Representatives. Verily, under prevailing jurisprudence, to
successfully challenge herein Gonzalezs disqualification, petitioner in SPA
No. 10-074 (DC) must clearly demonstrate that Gonzalezs ineligibility is so
patently antagonistic to constitutional and legal principles that overriding
such ineligibility and thereby giving effect to the apparent will of the people
would ultimately create greater prejudice to the very democratic institutions
and juristic traditions that our Constitution and laws so zealously protect and
promote.[41]The COMELEC thus seriously erred in ruling that Gonzalezs
motion for reconsideration was pro forma.
Petitioners motion for reconsideration of the May 8, 2010 resolution of the
Second Division having been timely filed, the said resolution had not become
final and executory. Considering that at the time of the proclamation of
Gonzalez who garnered the highest number of votes for the position of
Representative in the 3
rd
district of Albay, the said Division Resolution
declaring Gonzalez disqualified as a candidate for the said position was not
yet final, he had at that point in time remained qualified. Therefore, his
proclamation on May 12, 2010 by the PBOC was valid or
legal.[42] Moreover, the May 8, 2010 resolution cannot as yet be
implemented for not having attained finality.
Despite recourse to this Court, however, we cannot rule on the issue of
citizenship of Gonzalez. Subsequent events showed that Gonzalez had not
only been duly proclaimed, he had also taken his oath of office and assumed
office as Member of the House of Representatives. We have consistently
held that once a winning candidate has been proclaimed, taken his oath,
and assumed office as a member of the House of Representatives,
COMELECs jurisdiction over election contests relating to his election,
returns, and qualifications ends, and the HRETs own jurisdiction
begins.[43] In Perez v. Commission on Elections,[44] we declared that the
Court does not have jurisdiction to pass upon the eligibility of the private
respondent who was already a Member of the House of Representatives at
the time of filing of the petition for certiorari.[45]
Under Article VI, Section 17 of the 1987 Constitution, the HRET is the sole
judge of all contests relating to the election, returns, and qualifications of
the members of the House of Representatives. As this Court explained
in Lazatin v. House Electoral Tribunal[46]:
The use of the word sole emphasizes the exclusive character of the
jurisdiction conferred x x x. The exercise of the power by the Electoral
Commission under the 1935 Constitution has been described as intended to
be as complete and unimpairedas if it had remained originally in the
legislature x x x. Earlier, this grant of power to the legislature was
characterized by Justice Malcolm as full, clear and complete x x x. Under
the amended 1935 Constitution, the power was unqualifiedly reposed upon
the Electoral Tribunal x x x and it remained as full, clear and complete as
that previously granted the legislature and the Electoral Commission x x
x. The same may be said with regard to the jurisdiction of the Electoral
Tribunals under the 1987 Constitution.
Limkaichong v. Commission on Elections[47] recently reiterated this settled
rule on the COMELECs loss of jurisdiction over a petition questioning the
qualifications of a candidate upon his election, proclamation and assumption
of office. In said case, petitioner Limkaichong faced two disqualification
cases alleging that she is not a natural-born Filipino because her parents
were Chinese citizens at the time of her birth. The cases remained pending
by the time the May 14, 2007 elections were held in which Limkaichong
emerged as the winner with 65,708 votes

or by a margin of 7,746
votes. Subsequently, another congressional candidate (Olivia Paras) who
obtained the second highest number of votes filed a motion for leave to
intervene and to suspend the proclamation of Limkaichong, which the
COMELECs Second Division granted. The day after the PBOC suspended her
proclamation, the COMELEC issued Resolution No. 8062 adopting the policy-
guidelines of not suspending the proclamation of winning candidates with
pending disqualification cases which shall be without prejudice to the
continuation of the hearing and resolution of the cases. Accordingly,
Limkaichong moved to reconsider the resolution disqualifying her as a
candidate and to lift the order suspending her proclamation. In compliance
with Resolution No. 8062, the PBOC reconvened and proclaimed
Limkaichong as the duly elected Member of the House of Representatives for
the 1
st
district of Negros Oriental. Thereafter, Paras filed a petition to annul
Limkaichongs proclamation, which was dismissed by the COMELECs First
Division, upon the ground that the disqualification cases were not yet final
when Limkaichong was proclaimed. Her proclamation being valid or legal,
the COMELEC ruled that it effectively divested the Commission of jurisdiction
over the cases.
Limkaichong then moved to declare the disqualification cases as dismissed,
contending that with her proclamation, her having taken her oath of office
and her assumption of the position, the COMELEC was divested of
jurisdiction to hear the disqualification cases. Since the COMELEC did not
resolve her motion despite her repeated pleas, Limkaichong filed a petition
for certiorari before this Court. Said petition was consolidated with the
petition for prohibition and injunction filed by Louis C. Biraogo, petition for
certiorari and injunction filed by Renald F. Villando and the petition for quo
warranto, prohibition and mandamus with prayer for temporary restraining
order and preliminary injunction instituted by Paras.
By Decision dated April 1, 2009, this Court upheld the validity of
Limkaichongs proclamation and the HRETs jurisdiction over the issue of
disqualification of Limkaichong, as follows:
The Court has held in the case of Planas v. COMELEC, that at the time of the
proclamation of Defensor, the respondent therein who garnered the highest
number of votes, the Division Resolution invalidating his certificate of
candidacy was not yet final. As such, his proclamation was valid or legal, as
he had at that point in time remained qualified. Limkaichongs situation is
no different from that of Defensor, the former having been disqualified by a
Division Resolution on the basis of her not being a natural-born Filipino
citizen. When she was proclaimed by the PBOC, she was the winner
during the elections for obtaining the highest number of votes, and
at that time, the Division Resolution disqualifying her has not yet
became final as a result of the motion for reconsideration.
x x x x
In her petition x x x, Limkaichong argued that her proclamation on May 25,
2007 by the PBOC divested the COMELEC of its jurisdiction over all issues
relating to her qualifications, and that jurisdiction now lies with the HRET.
Biraogo, on the other hand, believed otherwise. He argued x x x that the
issue concerning Limkaichongs disqualification is still within the exclusive
jurisdiction of the COMELEC En Banc to resolve because when Limkaichong
was proclaimed on May 25, 2007, the matter was still pending resolution
before the COMELEC En Banc.
We do not agree. The Court has invariably held that once a winning
candidate has been proclaimed, taken his oath, andassumed office as
a Member of the House of Representatives,the COMELECs jurisdiction
over election contests relating to his election, returns, and
qualifications ends, and the HRETs own jurisdiction begins. It follows
then that the proclamation of a winning candidate divests the
COMELEC of its jurisdiction over matters pending before it at the
time of the proclamation. The party questioning his qualification
should now present his case in a proper proceeding before the HRET,
the constitutionally mandated tribunal to hear and decide a case involving a
Member of the House of Representatives with respect to the latters election,
returns and qualifications. The use of the word sole in Section 17, Article
VI of the Constitution and in Section 250 of the OEC underscores the
exclusivity of the Electoral Tribunals jurisdiction over election contests
relating to its members.
x x x x[48] (Additional emphasis supplied.)
Maintaining that it retains jurisdiction over SPA No. 10-074 (DC), the
COMELEC En Banc declared in its July 23, 2010 Resolution that the ruling
in Limkaichong v. Commission on Elections does not apply to the case of
Gonzalez since this Court found Limkaichongs proclamation to be valid
pursuant to COMELEC Resolution No. 8062 which adopted the policy
guideline, in connection with the May 14, 2007 elections, of not
suspending the proclamation of winning candidates with pending
disqualification cases which shall be without prejudice to the continuation of
the hearing and decision of the involved cases.
In the case of Gonzalez, the COMELEC said that the applicable rule is Section
16 of COMELEC Resolution No. 8678 promulgated on October 6, 2009 which
specifically governs the proceedings for the May 10, 2010 Automated
Elections. Said provision reads:
SEC. 16. Effects of Disqualification. -- Any candidate who has been
declared disqualified by final judgment shall not be voted for and the votes
cast in his favor shall not be counted. If, for any reason, he is not declared
disqualified by final judgment before the election and he is voted for and
receives the winning number of votes, the case shall continue and upon
motion of the petitioner, complainant, or intervenor, the proclamation of
such candidate may be ordered suspended during the pendency of the
said case whenever the evidence is strong.
a) where a similar complaint/petition is filed before the election and before
the proclamation of the respondent and the case is not resolved before the
election, the trial and hearing of the case shall continue and referred to the
Law Department for preliminary investigation.
b) where the complaint/petition is filed after the election and before the
proclamation of the respondent, the trial and hearing of the case shall be
suspended and referred to the Law Department for preliminary investigation.
In either case, if the evidence of guilt is strong, the
Commission may order the suspension of the proclamation of
respondent, and if proclaimed, to suspend the effects of
proclamation. (Emphasis supplied.)
Invoking the last paragraph of the foregoing provision which the COMELEC
said is in harmony with Section 6 of R.A. No. 6646 (Electoral Reforms Law of
1987), the COMELEC ruled that Gonzalezs proclamation was premature and
illegal, thus:
Third, as found by the Supreme Court in Limkaichong, the COMELEC en
banc on August 16, 2007 ruled on Limkaichongs manifestation and motion
for clarification, thus:
In view of the proclamation of Limkaichong and her subsequent assumption
of office on June 30, 2007, this Commission rules that all pending incidents
relating to the qualifications of Limkaichong should now be determined by
the House of Representatives Electoral Tribunal in accordance with the
above-quoted provision of the Constitution.
xxx
On the contrary, in the present case, the Second Division of the
Commission, in the exercise of its power to suspend such proclamation
under the aforequoted provisions of law, refused to set aside the
proclamation and the effects thereof.
Clearly, therefore, there is no taint of doubt that with the Resolution of
the Second Division disqualifying the respondent, his proclamation
by the Provincial Board of Canvassers was pre-mature and illegal
and should therefore be annulled. There is no question that this
Commission has the power to suspend such proclamation. Notably,
in several jurisprudence where the Supreme Court refused the
annulment of proclamation and held that the jurisdiction pertained
already to HRET, it was the Comelec itself that eventually allowed
the proclamation and the effects thereof, as shown in [the] Decision
of the Supreme Court above-referred to. In stark contrast with the
case at bar, this Commission itself is exercising its prerogative and
power to nullify an illegal and premature proclamation of the
respondent on the basis of the continued proceedings pursuant to
both Section 16 of Resolution 8678 and Section 6 of Republic Act
6646.
Lastly, it must be taken into consideration that, unlike in the previous
elections, the ballots were now already printed with the names of the
candidates as of the date of printing, and it was already impossible without
incurring tremendous expense and delay merely to remove the name of the
disqualified candidate and program the PCOS machines not to count the
votes cast in favor of the disqualified candidate in a short period of time
prior to the actual elections. For said reason, this Commission has ample
power to suspend the effects of, and ultimately annul, the proclamation of
the disqualified candidate whose votes should not have been counted in the
first place.
x x x x[49] (Emphasis supplied.)
We find the above ruling contrary to our pronouncement inLimkaichong and
jurisprudence interpreting Section 72 of the OEC and Section 6 of R.A. No.
6646 which amended said provision.
First, as already stated, there was no legal bar to the proclamation of
Gonzalez as the winning candidate on May 12, 2010 since the May 8, 2010
Resolution at that time had not yet become final; in fact Gonzalez received a
copy thereof only on May 11, 2010. We have held that the five-day period
for filing a motion for reconsideration under Rule 19, Section 2 of the
COMELEC Rules of Procedure should be counted from thereceipt of the
decision, resolution, order, or ruling of the COMELEC Division.[50] With his
filing of a motion for reconsideration within the three-day period provided in
Section 7 of COMELEC Resolution No. 8696, the execution of the said
resolution was effectively suspended.
Moreover, there is nothing in the May 8, 2010 Resolution of the Second
Division ordering the suspension of the proclamation of Gonzalez. From the
language of Section 6 of R.A. No. 6646 upon which the first paragraph of
Section 16 of COMELEC Resolution No. 8678 was based, the Commission can
order the suspension of the proclamation of the winning candidate onlyupon
motion during the pendency of the disqualification case. The Court has ruled
that the suspension of proclamation of a winning candidate is not a matter
which the COMELEC Second Division can dispose of motu proprio. Section 6
of R.A. No. 6646 requires that the suspension must be upon motion by the
complainant or any intervenor.[51]
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.[52] There being no final judgment of disqualification
yet at the time of his proclamation on May 12, 2010, it was grave error for
the COMELEC En Bancto rule that Gonzalezs proclamation was illegal and
premature. Also, the May 8, 2010 Resolution rendered by the Second
Division cannot be construed as an implicit exercise by the Commission of its
power to suspend the proclamation of Gonzalez as it could not have yet
ordered such suspension considering that Bichara (petitioner in SPA No. 10-
074 [DC]) filed his Urgent Motion to Stop/Suspend The Proclamation of
Fernando Vallejo Gonzalez only on May 11, 2010 after the promulgation of
the May 8, 2010 Resolution.[53] Moreover, the COMELEC En Banc did not
act on said motion of Bichara even after Gonzalez had been proclaimed by
the PBOC. Subsequently, Lim filed a motion for leave to intervene and
suspend the effects of proclamation of Gonzalez, which was followed by ten
very urgent motions for the COMELEC En Bancto resolve the same.[54]
Neither can the COMELEC anchor its ruling that the May 12, 2010
proclamation of Gonzalez was illegal and premature on the ground that
votes for said candidate, who was disqualified under the May 8, 2010
Resolution of the Second Division, should not have been counted. This is
apparent from the other reason cited by the COMELEC as one of the
circumstances distinguishing the present case from that
of Limkaichong, thus:
Lastly, it must be taken into consideration that, unlike the previous
elections, the ballots were now already printed with the names of the
candidates as of the date of printing, and it was already impossible
without incurring tremendous expense and delay merely to remove
the name of the disqualified candidate and program the PCOS
machines not to count the votes cast in favor of the disqualified
candidate in a short period of time prior to the actual elections. For
said reason, this Commission has ample power to suspend the effects of,
and ultimately annul, the proclamation of the disqualified candidate whose
votes should not have been counted in the first place.[55] (Emphasis
supplied.)
The above proposition is untenable. The advent of automated elections did
not make any difference in the application of Section 6 of R.A. No. 6646
insofar as the effects of disqualification are concerned. Even at the time
when ballots were physically read by the board of election inspectors and
counted manually, it had not been absolutely necessary to reprint the ballots
or remove the names of candidates who were disqualified before
election. The votes cast for such candidates considered as stray votes
even if read by the PCOS machines will have to be disregarded by the board
of canvassers upon proper order from the COMELEC.
In any case, the point raised by the COMELEC is irrelevant in resolving the
present controversy. It has long been settled that pursuant to Section 6 of
R.A. No. 6646, a final judgmentbefore the election is required for the votes
of a disqualified candidate to be considered stray. In the absence of any
final judgment of disqualification against Gonzalez, the votes cast in his
favor cannot be considered stray.[56]Limkaichong, any allegations as to the
invalidity of the proclamation will not prevent the HRET from assuming
jurisdiction over all matters essential to a members qualification to sit in the
House of Representatives.[57] After proclamation, taking of oath and assumption of office
by Gonzalez, jurisdiction over the matter of his qualifications, as well as questions regarding the
conduct of election and contested returns were transferred to the HRET as the constitutional body
created to pass upon the same. The Court thus does not concur with the COMELECs flawed assertion
of jurisdiction premised on its power to suspend the effects of proclamation in cases involving
disqualification of candidates based on commission of prohibited acts and election offenses. As we
held in
It must be noted that sub-paragraphs (a) and (b), Section 16 of COMELEC
Resolution No. 8678 which contemplate disqualification cases against
candidates over which the COMELEC retains jurisdiction even after those
candidates have won the elections, duly proclaimed and assumed
office, cannot be applied to petitions filed against candidates for the position
of Member of the House of Representatives questioning their constitutional
and statutory qualifications for the office under Section 78 of the OEC. The
law is explicit in vesting jurisdiction over such cases in the HRET. In our
Resolution dated July 20, 2009 denying the motion for reconsideration with
prayer for oral argument filed by Biraogo in the Limkaichong case, we
affirmed our ruling in our Decision of April 1, 2009 that the proper remedy
of those who may assail Limkaichongs disqualification based on citizenship
is to file before the HRET the proper petition at any time during
incumbency. That Lim had already withdrawn the petition for quo
warranto he had earlier filed before the HRET is of no consequence,
considering that citizenship is a continuing requirement for the holding of
office of Members of the House of Representatives.
Under the 1987 Constitution, Members of the House of Representatives must
be natural-born citizens not only at the time of their election but during their
entire tenure. Anyone who assails a Representatives citizenship or lack of it
may still question the same at any time, even beyond the ten-day
prescriptive period set in the 1998 HRET Rules.[58]
We also hold that there is no basis for the COMELECs order constituting a
Special Provincial Board of Canvassers for the purpose of proclaiming Lim
who got the next highest number of votes in the May 10, 2010 elections for
the position of Representative of the 3
rd
District of Albay. It is well-settled
that the ineligibility of a candidate receiving majority votes does not entitle
the eligible candidate receiving the next highest number of votes to be
declared elected. A minority or defeated candidate cannot be deemed
elected to the office. The votes intended for the disqualified candidate should
not be considered null and void, as it would amount to disenfranchising the
electorate in whom sovereignty resides.[59] The second placer is just that,
a second placer he lost in the elections and was repudiated by either the
majority or plurality of voters.[60]
Private respondent Lim argues that the second placer rule will not apply in
this case because Gonzalez was disqualified to be a candidate before election
under the assailed COMELEC resolutions which became final and executory
after five (5) days without a restraining order issued by this Court. The
effect of the ruling on Gonzalezs disqualification retroacts to the day of
election (May 10, 2010). As reflected in the recent Statement of Votes
prepared by the Special Board of Canvassers, the name of Fernando V.
Gonzalez has been delisted from the lists of official candidates for the
Members of the House of Representatives in the 3
rd
[61] District of Albay.
The exception to the second placer rule is predicated on the concurrence of
the following: (1) the one who obtained the highest number of votes is
disqualified; and (2) the electorate is fully aware in fact and in law of a
candidates disqualification so as to bring such awareness within the realm of
notoriety but would nonetheless cast their votes in favor of the ineligible
candidate.[62] These facts warranting the exception to the rule are not
present in the case at bar. As noted by Commissioner Velasco, the date of
promulgation of the resolution declaring Gonzalez disqualified to be a
candidate in the May 10, 2010 was not a previously fixed date as required
by Section 6[63] of COMELEC Resolution No. 8696 as the records do not
show that the parties were given prior notice thereof. In fact, Gonzalez
through his counsel received a copy of the May 8, 2010 Resolution only on
May 11, 2010, one day after the elections.
And as we held in Bautista v. Commission on Elections[64]
Thus, when the electorate voted for Bautista as Punong Barangay on 15 July
2002, it was under the belief that he was qualified. There is no presumption
that the electorate agreed to the invalidation of their votes as stray votes in
case of Bautistas disqualification. The Court cannot adhere to the theory of
respondent Alcoreza that the votes cast in favor of Bautista are stray
votes. A subsequent finding by the COMELEC en banc that Bautista is
ineligible cannot retroact to the date of elections so as to invalidate
the votes cast for him. As held in Domino v. COMELEC:
Contrary to the claim of INTERVENOR, petitioner was not notoriously known
by the public as an ineligible candidate.Although the resolution declaring
him ineligible as candidate was rendered before the election,
however, the same is not yet final and executory. In fact, it was no less
than the COMELEC in its Supplemental Omnibus Resolution No. 3046 that
allowed DOMINO to be voted for the office and ordered that the votes cast
for him be counted as the Resolution declaring him ineligible has not yet
attained finality. Thus the votes cast for DOMINO are presumed to have
been cast in the sincere belief that he was a qualified candidate, without any
intention to misapply their franchise. Thus, said votes can not be treated as
stray, void, or meaningless.[65](Emphasis supplied.)
We have declared that not even this Court has authority under any law to
impose upon and compel the people to accept a loser, as their
representative or political leader.[66] The wreath of victory cannot be
transferred from the disqualified winner to the repudiated loser.[67] The
COMELEC clearly acted with grave abuse of discretion in ordering the
proclamation of private respondent Lim who lost by a wide margin of 29,292
votes, after declaring Gonzalez, the winning candidate, disqualified to run as
Member of the House of Representatives.
WHEREFORE, the petition is GRANTED. The assailed Resolution of the
Second Division dated May 8, 2010 and COMELEC En Banc Resolution dated
July 23, 2010 in SPA No. 10-074 (DC) are hereby ANNULLED and SET
ASIDE. The Petition for Disqualification and Cancellation of Certificate of
Candidacy of Fernando V. Gonzalez is DISMISSED, without prejudice to the
filing of a proper petition before the House of Representatives Electoral
Tribunal raising the same question on the citizenship qualification of
Fernando V. Gonzalez.
No costs.
SO ORDERED.









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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 93986 December 22, 1992
BENJAMIN T. LOONG, petitioner,
vs.
COMMISSION ON ELECTIONS, NURSHUSSEIN UTUTALUM and ALIM BASHIR EDRIS, respondents.

PADILLA, J .:
In this special civil action of certiorari, petitioner assails the Resolution dated 15 May 1990 of the Commission on Elections
(Second Division), issued SPA No. 90-006 entitled "Nur Hussein Ututalum, petitioner vs. Benjamin Loong, respondent," a petition
to disqualify Benjamin Loong, candidate for Regional Vice-Governor of the Autonomous Government in Muslim Mindanao. Said
assailed resolution ruled that the respondent Commission has jurisdiction to hear and decide SPA No. 90-006.
On 15 January 1990, petitioner filed with the respondent Commission his certificate of candidacy for the position of Vice-
Governor of the Mindanao Autonomous Region in the election held on 17 February 1990 (15 January 1990 being the last day for
filing said certificate); herein two (2) private respondents (Ututalum and Edris) were also candidates for the same position.
On 5 March 1990 (or 16 days after the election), respondent Ututalum filed before the respondent Commission (Second Division)
a petition (docketed as SPA Case No. 90-006) seeking to disqualify petitioner for the office of Regional Vice-Governor, on the
ground that the latter made a false representation in his certificate of candidacy as to his age.
On 7 March 1990, the other candidate, respondent Edris, filed a "Petition in Intervention" in the said SPA No. 90-006, raising
therein issues similar to those raised by respondent Ututalum in his main petition.
On 19 March 1990,
1
petitioner Loong filed in SPA No. 90-006 his answer to the petition, seeking the dismissal of the petition, and
alleging the following:
1. that it has not been the practice among the Muslim people in the community where respondent was
born to record the birth of a child with the Office of the Civil Registry; that following such practice,
respondent's parents did not also record his birth with the said office; that, to be sure of his age
qualification, respondent, before filing his certificate of candidacy consulted his mother and other persons
who have personal knowledge of his date of birth and all assured respondent that his correct date of birth
is July 4, 1954.
2. that respondent COMELEC has no jurisdiction because such petition is actually one which is to deny
due course to or cancel a certificate of candidacy which, under Section 78 of the Omnibus Election Code
(BP 881), as amended by Election Reforms Law of 1987, should have been filed within 5 days following
the last day for filing of the certificate of candidacy.
On 30 March 1990, petitioner Loong also filed his "Answer to Petition for Intervention."
2

On 15 May 1990, the respondent Commission (Second Division) rendered the now assailed Resolution
3
(with two (2)
Commissioners Yorac and Flores concurring, and one Commissioner Dimaampao dissenting), holding that:
WHEREFORE, on the basis of the foregoing, the Commission on Elections (Second Division) holds that it
has jurisdiction to try the instant petition and the respondent's motion to dismiss on the ground of lack of
jurisdiction is hereby denied.
In its questioned resolution, respondent Commission held that, in consonance with the ruling of this Court inFrivaldo vs.
COMELEC
4
to wit
The qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the
people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistaken
believed, as in this case, that the candidate was qualified.
Section 6 and 7 of Rep. Act No. 6646
5
(in relation to the said Frivaldo ruling) should now mean that:
1. When there is an allegation of falsification of an entry in a candidate's certificate of candidacy, and such
alleged falsification refers to a fact concerning the candidate's eligibility to run for and hold an elective
public office, a petition to declare such candidate ineligible is seasonable if it is brought within a
reasonable time of the discovery of ineligibility.
2. Such petition for a declaration of ineligibility is seasonable even if filed after the period prescribed by law for
attacking certificate of candidacy and before the proclamation of the candidate sought to be disqualified. The
substantive issue of qualification cannot be subordinated to or defeated by the gap in procedural rules. ..."
6

Denying petitioner's motion for reconsideration of the above-cited resolution, the respondent Commission issued Resolution
dated 3 July 1990,
7
stating among others that
While the Frivaldo case referred to the questioned of respondent's citizenship, we hold that the principle
applies to discovery of violation of requirements for eligibility, such as for instance the fact that a
candidate is a holder of a green card or other certificates of permanent residence in another country, or,
as in this case, that the candidate does not possess the age qualification for the office.
On 3 July 1990, petitioner was proclaimed as the duly elected Vice-Governor of the Mindanao Autonomous Region. 8 Hence, this
special civil action of certiorari filed by petitioner on 9 July 1990 to annul the aforesaid resolutions of respondent Commission
dated 15 May 1990 and 3 July 1990, issued in SPA No. 90-006.
The principal issue in the case at bar, as we see it, is whether or not SPA No. 90-006 (a petition to cancel the certificate of
candidacy of petitioner Loong) was filed within the period prescribed by law.
The undisputed facts are as follows: petitioner Loong filed his certificate of candidacy on 15 January 1990 (The last day for filing
the same), the election for officials of the Muslim Mindanao Autonomous Region being on 17 February 1990; but private
respondent Ututalum filed the petition (SPA 90-006) to disqualify candidate Loong only on 5 March 1990, or forty-nine (49) days
from the date Loong's certificate of candidacy was filed (i.e. 15 January 1990), and sixteen (16) days after the election itself.
Petitioner Loong contends that SPA No. 90-006 was filed out of time because it was filed beyond the 25-day period prescribed by
Section 78 of the Omnibus Election Code. On the other hand, private respondent Ututalum alleges that SPA No. 90-006, though
filed only on 5 March 1990, was filed when no proclamation of winner had as yet been made and that the petition is deemed filed
on time as Section 3, Rule 25 of the Comelec Rules of Procedure states that the petition to disqualify a candidate on grounds of
ineligibility "shall be filed any day after the last day for filing of certificates of candidacy but not later than the date of
proclamation."
On the part of respondent Commission, it held in its assailed resolution that the petition in SPA No. 90-006 was timely filed,
applying Sections 6 and 7 of Republic Act No. 6646,
9
and Section 2, Rule 23 of the Comelec Rules of Procedure which states
that the petition to deny due course to or cancel a certificate of candidacy must be filed within five (5) days following the last day
for the filing of a certificate of candidacy, both read in the light of theFrivaldo ruling of this Court.
We find the present petition to be meritorious.
Sections 3 and 4 of Rep. Act No. 6734 (entitled, "An Act Providing for an Organic Act for the Autonomous Region in Muslim
Mindanao") requires that the age of a person running for the office of Vice Governor for the autonomous region shall be at least
thirty-five (35) years on the day of the election. Private respondent Ututalum alleges that petitioner Loong falls short of this age
requirements, hence, on 5 march 1990, he filed a petition to disqualify the petitioner.
Section 74 of the Omnibus Election Code ("Code" for brevity) provides that the certificate of candidacy of the person filing it shall
state, among others, the date of birth of said person. Section 78 of the same Code states that is case a person filing a certificate
of candidacy has committed false representation, a petition to cancel the certificate of the aforesaid person may be filed within
twenty-five (25) days from the time the certificate was filed.
Clearly, SPA No. 90-006 was filed beyond the 25-day period prescribed by Section 78 of the Omnibus Election Code.
We do not agree with private respondent Ututalum's contention that the petition for disqualification, as in the case at bar, may be
filed at any time after the last day for filing a certificate of candidacy but not later than the date of proclamation, applying Section
3, Rule 25 of the Comelec Rules of Procedures.
Rule 25 of the Comelec Rules of Procedure refers to Disqualification of Candidates; and Section 1 of said rule provides that any
candidate who commits any act declared by law to be a ground for disqualification may be disqualified from continuing as a
candidate. The grounds for disqualification as expressed in Sections 12 and 68 of the Code are the following:
SEC. 12. Disqualification. Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion or for any
offense for which he was sentenced to a penalty of more than eighteen months or for a crime involving
moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given
plenary pardon or granted amnesty.
SEC. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared
by final decision of a competent court guilty of, or found by the Commission of having (a) given money or
other material consideration to influence, induce or corrupt the voters or public official performing electoral
functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election compaign an
amount in excess of that allowed by contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be
disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person
who is a permanent resident of or an immigrant to foreign country shall not be qualified to run for any
elective office under this Code, unless said or immigrant of a foreign country in accordance with the
residence requirement provided for in the election law.
The petition filed by private respondent Ututalum with the respondent Comelec to disqualify petitioner Loong on the ground that
the latter made a false representation in his certificate of candidacy as to his age, clearly does not fall under the grounds of
disqualification as provided for in Rule 25 but is expressly covered by Rule 23 of the Comelec Rules of Procedure governing
petitions to cancel certificate of candidacy. Moreover, Section 3, Rule 25 which allows the filing of the petition at nay time after
the last day for the filing of certificates of candidacy but not later than the date of proclamation, is merely a procedural rule issued
by respondent Commission which, although a constitutional body, has no legislative powers. Thus, it can not supersede Section
78 of the Omnibus Election Code which is a legislative enactment.
We also do not find merit in the contention of respondent Commission that in the light of the provisions of Section 6 and 7 of Rep.
Act No. 6646, a petition to deny due course to or cancel a certificate of candidacy may be filed even beyond the 25 -day period
prescribed by Section 78 of the Code, as long as it is filed within a reasonable time from the discovery of the ineligibility.
Section 6 and 7 of Rep. Act No. 6646 are here re-quoted:
SEC. 6. Effect of Disqualification Case. ny 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 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 of 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.
SEC. 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."
It will be noted that nothing in Sections 6 or 7 modified or alters the 25-day period prescribed by Section 78 of the Code for filing
the appropriate action to cancel a certificate of candidacy on account of any false representation made therein. On the contrary,
said Section 7 affirms and reiterates Section 78 of the Code.
We note that Section 6 refers only to the effects of a disqualification case which may be based on grounds other than that
provided under Section 78 of the Code. But Section 7 of Rep. Act No. 6646 also makes the effects referred to in Section 6
applicable to disqualification cases filed under Section 78 of the Code. Nowhere in Section 6 and 7 Rep. Act. No 6646 is
mentioned made of the period within which these disqualification cases may be filed. This is because there are provisions in the
Code which supply the periods within which a petition relating to disqualification of candidates must be filed, such as Section 78,
already discussed, and Section 253 on petitions for quo warranto.
Thus, if a person qualified to file a petition to disqualification a certain candidate fails to file the petition within the 25-day period
prescribed by Section 78 of the Code for whatever reasons, the election laws do not leave him completely helpless as he has
another chance to raise the disqualification of the candidate by filing a petition forquo warranto within ten (10) days from the
proclamation of the results of the election, as provided under Section 253 of the Code. Section 1 Rule 21 of the Comelec Rules
of procedure similarly provides that any voter contesting the election of any regional, provincial or city official on the ground of
ineligibility or of disloyalty to the Republic of the Philippines may file a petition for quo warranto with the Electoral Contest
Adjudication Department. The petition may be filed within ten (10)days from the date the respondent is proclaimed (Section 2).
It is true that the discovery of false representation as to material facts required to be stated in a certificate of candidacy, under
Section 74 of the Code, may be made only after the lapse of the 25-day period prescribed by Section 78 of the Code, through no
fault of the person who discovers such misrepresentations and who would want the disqualification of the candidate committing
the misrepresentations. It would seem, therefore, that there could indeed be a gap between the time of the discovery of the
misrepresentation, (when the discovery is made after the 25-day period under Sec. 78 of the Code has lapsed) and the time
when the proclamation of the results of the election is made. During this so-called "gap" the would-be petitioner (who would seek
the disqualification of the candidate) is left with nothing to do except to wait for the proclamation of the results, so that he could
avail of a remedy against the misrepresenting candidate, that is, by filing a petition for quo warranto against him. Respondent
Commission sees this "gap" in what it calls a procedural gap which, according to it, it unnecessary and should be remedied.
At the same time, it can not be denied that it is the purpose and intent of the legislative branch of the government to fix a definite
time within which petitions of protests related to eligibility of candidates for elective offices must be filed,
10
as seen in Section 78
and 253 of the Code. Respondent Commission may have seen the need to remedy this so-called "procedural gap", but it is not
for it to prescribed what the law does not provide, its function not being legislative. The question of whether the time to file these
petitions or protests is too short or ineffective is one for the Legislature to decide and remedy.
We are aware that in Frivaldo vs. Comelec,
11
this Court held that a petition to disqualify an elective official, on the ground that he
is not a Filipino citizen, may be file at anytime, even beyond the period prescribed by law, and office and in fact had long been
discharging the duties of said office. But we disagree with respondent Commission that the Frivaldo ruling applied to the case at
bar in all its connotations and implications. For one, the ground for which disqualification is sought in the present case is
misrepresentation as to the required age of the candidate,whereas, in Frivaldo the ground for disqualification was lack of
Philippine citizenship. This is an overriding and fundamental desideratum matched perhaps only by disloyalty to the Republic of
the Philippines.
Mr. Justice Gutierrez, Jr., in his concurring opinion in Frivaldo vs. Comelec
12
said:
It is an established rule of long standing that the period fixed by law for the filing of a protest
whether quo warranto or election contest is mandatory and jurisdictional.
As a rule, the quo warranto petition seeking to annul the petitioner's election and proclamation should
have been filed within ten days after the proclamation of election results. The purpose of the law in not
allowing the filing of protests beyond the period fixed by law is to have a certain and definite time within
which petitions against the results of an election should be filed and to provide summary proceedings for
the settlement of such disputes.
xxx xxx xxx
I must emphasize, however, that my concurrence is limited to a clear case of an alien holding an elective
public office. And perhaps in a clear case of disloyalty to the Republic of the Philippines. Where the
disqualification is based on age, residence, or any of the many grounds for ineligibility, I believe that the
ten-day period should be applied strictly.
In Aznar vs. Comelec,
13
the records show that private respondent filed his certificate of candidacy on 19 November 1987 and that
the petitioner filed his petition for disqualification of said private respondent on 22 January 1988. Since the petition for
disqualification was filed beyond the twenty five-day period required in Section 78 of the Code, it was clear that the said petition
had been filed out of time. The Court also ruled that the petition for the disqualification of private respondent could not also be
treated as a petition for quo warranto under Section 253 of the same Code as it was unquestionably premature, considering that
private respondent was proclaimed Provincial Governor of Cebu only on 3 March 1988. However, as a matter of public interest to
ascertain the respondent's citizenship and qualification to hold the public office to which he had been proclaimed elected, the
Court ruled on the merits of the case.
But the Court, in another case, in an EN BANC Resolution
14
affirmed the dismissal by the COMELEC of the petitions for
disqualification. It appeared that on 2 March 1990, a petition to disqualify Padilla Pundaodaya (SPA No. 90-004) was filed
because of an allegedly falsified certificate of candidacy which he could not have personally filed on 15 January 1990 since he
had been in Saudi Arabia since 24 July 1987 and arrived in Manila only on 24 January 1990. The Court held that the
disqualification petition was correctly treated by the Commission on Elections as a petition to cancel a defective certificate of
candidacy but the petition was filed out of time and could not anymore be entertained.
In sum, SPA No. 90-006 was filed by private respondent Ututalum beyond the 25-day period (from the filing by petitioner Loong
of the questioned certificate of candidacy) prescribed by Section 78 of the Code. It follows that the dismissal of said petition for
disqualification is warranted. Further it would appear that we can not treat SPA NO. 90-006 as a petition for quo
warranto (Section 253 of the Code) for when it was filed with the respondent Commission, no proclamation of election results had
as yet been made, it was premature.
WHEREFORE, the petition is GRANTED. The resolution of respondent Commission, dated 15 May 1990 and 3 July 1990,
rendered in SPA No. 90-006 are hereby SET ASIDE.
SO ORDERED.
Narvasa, Gutierrez, Jr., Cruz, Feliciano, Bidin, Grio-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo and
Campos, Jr., JJ., concur.

Footnotes
1 Rollo, p. 67
2 Rollo, p. 75
3 Rollo, p. 22
4 G.R. No. 87193, June 23, 1989, 174 SCRA 245
5 The Electoral Reforms Law of 1987 approved on January 5, 1988
6 Rollo, pp. 23-24
7 Rollo, p. 30
8 Rollo, p. 10
9 Section 6 and 7 of Rep. Act No. 6646 provide that:
SEC. 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."
SEC. 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."
10 Municipality of Masantol vs. Guevarra, 44 Phil. 580 (1963)
11 174 SCRA 245
12 Ibid., pp. 256-258
13 G.R. No. 83820, May 25, 1990, 185 SCRA 703
14 Dr. Tocod D. Macaraya, et al. vs. The Commission on Elections, et al., G.R. No. 93404; Zorayda Y.A.
Tamano, et al. vs. COMELEC, et al., G.R. No. 93405, August 2, 1990.

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 179695 December 18, 2008
MIKE A. FERMIN, petitioner,
vs.
COMMISSION ON ELECTIONS and UMBRA RAMIL BAYAM DILANGALEN, respondents.
G.R. No. 182369 December 18, 2008
MIKE A. FERMIN, petitioner,
vs.
COMMISSION ON ELECTIONS and UMBRA RAMIL BAYAM DILANGALEN, respondents.
D E C I S I O N
NACHURA, J .:
These consolidated petitions provide a welcome avenue for the Court to dichotomize, once and for all, two popular remedies to
prevent a candidate from running for an elective position which are indiscriminately interchanged by the Bench and the Bar,
adding confusion to the already difficult state of our jurisprudence on election laws.
For the Courts resolution are two petitions for certiorari under Rule 64 in relation to Rule 65 of the Rules of Court: (1) G.R. No.
179695, which assails the June 29, 2007 Resolution
1
of the Commission on Elections (COMELEC) 2
nd
Division in SPA No. 07-
372, and the September 20, 2007 Resolution
2
of the COMELEC En Banc affirming the said division resolution; and (2) G.R. No.
182369, which challenges the February 14, 2008 Resolution
3
of the COMELEC 1
st
Division in SPR No. 45-2007, the March 13,
2008 Order
4
of the COMELEC En Banc denying petitioners motion for reconsideration, and the March 26, 2008 Entry of
Judgment
5
issued by the Electoral Contests and Adjudication Department (ECAD) of the Commission in the said case.
The relevant facts and proceedings follow.
After the creation of Shariff Kabunsuan,
6
the Regional Assembly of the Autonomous Region in Muslim Mindanao (ARMM), on
November 22, 2006, passed Autonomy Act No. 205
7
creating the Municipality of Northern Kabuntalan in Shariff Kabunsuan. This
new municipality was constituted by separating Barangays Balong, Damatog, Gayonga, Guiawa, Indatuan, Kapinpilan, P. Labio,
Libungan, Montay, Sabaken and Tumaguinting from the Municipality of Kabuntalan.
8

Mike A. Fermin, the petitioner in both cases, was a registered voter of Barangay Payan, Kabuntalan. On December 13, 2006,
claiming that he had been a resident of Barangay Indatuan for 1 year and 6 months, petitioner applied with the COMELEC for the
transfer of his registration record to the said barangay.
9
In the meantime, the creation of North Kabuntalan was ratified in a
plebiscite on December 30, 2006,
10
formally makingBarangay Indatuan a component of Northern Kabuntalan.
Thereafter, on January 8, 2007, the COMELEC approved petitioner's application for the transfer of his voting record and
registration as a voter to Precinct 21A of Barangay Indatuan, Northern Kabuntalan.
11
On March 29, 2007, Fermin filed his
Certificate of Candidacy (CoC) for mayor of Northern Kabuntalan in the May 14, 2007 National and Local Elections.
12

On April 20, 2007, private respondent Umbra Ramil Bayam Dilangalen, another mayoralty candidate, filed aPetition
13
for
Disqualification [the Dilangalen petition] against Fermin, docketed as SPA (PES) No. A07-003 [re-docketed as SPA No. 07-372
before the COMELEC] with the Office of the Provincial Election Supervisor of Shariff Kabunsuan. The petition alleged that the
petitioner did not possess the period of residency required for candidacy and that he perjured himself in his CoC and in his
application for transfer of voting record. The pertinent portions of the petition follow:
1. THE PETITIONER is of legal age, a registered voter, resident and incumbent Municipal Mayor of the
Municipality of Northern Kabuntalan, holding office at Barangay Paulino Labio in the Municipality of Northern
Kabuntalan where he may be served summons and other legal processes.
2. THE PETITIONER is a candidate for election as Mayor in the same Municipality of Northern Kabuntalan, being
a resident of and domiciled in the Municipality since birth. The Respondent is also a candidate for the same
office, Mayor in the same Municipality of Northern Kabuntalan. He is, however, not a resident of the Municipality.
3. THE RESPONDENT perjured himself when he swore to the truth of his statement in his Certificate of
Candidacy of being a resident of the Municipality for the last 38 years, when in truth and in fact he simply
transferred his registration from the Municipality of Kabuntalan on 13 December 2006, wherein he stated that he
has relocated to that municipality a year and six months earlier, or no earlier than June 2005.
4. THE RESPONDENT perjured himself when he swore to the truth of his statement in his Certificate of
Candidacy of being a resident of the Municipality for the last 38 years, when in truth and in fact he has stayed for
at least 33 years in Barangay Payan, Municipality [of] Kabunt[a]lan.
5. THE RESPONDENT perjured himself when he swore to the truth of his statement in his Application for
Transfer that he is a resident of Barangay Indatuan on 13 December 2006, wherein he stated that he has
relocated to that municipality a year and six months earlier, or on or about June 2005, when in truth and in fact he
has never resided much less domiciled himself in Indatuan or anywhere else in the Municipality of Northern
Kabuntalan earlier than 14 May 2006.
6. THE RESPONDENT perjured himself when he swore to the truth of his statement in his Certificate of
Candidacy of being a resident of the Municipality for the last 38 years, when in truth and in fact he has never
resided in the Municipality, but was simply visiting the area whenever election is [f]ast approaching.
WHEREFORE, premises considered, it is most respectfully prayed that, [in consideration] of the Respondent not
possessing the residence required for candidacy, and having perjured himself in a number of times, the
Commission disqualify the Respondent.
14

Elections were held without any decision being rendered by the COMELEC in the said case. After the counting and canvassing
of votes, Dilangalen emerged as the victor with 1,849 votes over Fermins 1,640.
15
The latter subsequently filed an election
protest (Election Case No. 2007-022) with the Regional Trial Court (RTC), Branch 13 of Cotabato City.
16

G.R. No. 179695
On June 29, 2007, the COMELEC 2
nd
Division, in SPA No. 07-372, disqualified Fermin for not being a resident of Northern
Kabuntalan.
17
It ruled that, based on his declaration that he is a resident of Barangay Payan as of April 27, 2006 in his oath of
office before Datu Andal Ampatuan, Fermin could not have been a resident of BarangayIndatuan for at least one year.
18

The COMELEC En Banc, on September 20, 2007, affirmed the Division's ruling.
19

Thus, petitioner instituted G.R. No. 179695 before this Court raising the following issues:
A.
WHETHER OR NOT THE PETITION TO DISQUALIFY PETITIONER FROM SEEKING THE MAYORALTY POST
OF THE MUNICIPALITY OF NORTHERN KABUNTALAN SHOULD BE DISMISSED FOR HAVING BEEN FILED
OUT OF TIME.
B.
WHETHER OR NOT THE ONE (1) YEAR RESIDENCY REQUIREMENT AS PROVIDED BY ART. 56, PAR. NO.
3, RULE XIII, RULES AND REGULATIONS IMPLEMENTING THE LOCAL GOVERNMENT CODE OF THE
AUTONOMOUS REGION IN MUSLIM MINDANAO IS APPLICABLE TO PETITIONER, WHO TRANSFERRED
HIS VOTER'S REGISTRATION RECORD DUE TO CHANGE OF RESIDENCE FROM BARANGAY PAYAN TO
BARANGAY INDATUAN IN THE SAME MUNICIPALITY OF KABUNTALAN.
20

Petitioner contends that the Dilangalen petition is a petition to deny due course to or cancel a CoC under Section 78 of the
Omnibus Election Code (OEC).
21
Following Republic Act (R.A.) No. 6646, the same must be filed within 5 days from the last day
for the filing of CoC, which, in this case, is March 30, 2007, and considering that the said petition was filed by Dilangalen only on
April 20, 2007, the same was filed out of time. The COMELEC should have then dismissed SPA No. 07-372 outright.
22

Petitioner further argues that he has been a resident of Barangay Indatuan long before the creation of Northern Kabuntalan. This
change of residence prompted him to apply for the transfer of his voters registration record fromBarangay Payan
to Barangay Indatuan. Moreover, the one year residency requirement under the law is not applicable to candidates for elective
office in a newly created municipality, because the length of residency of all its inhabitants is reckoned from the effective date of
its creation.
23

In his comment, private respondent counters that the petition it filed is one for disqualification under Section 68 of the OEC which
may be filed at any time after the last day for filing of the CoC but not later than the candidates proclamation should he win in the
elections. As he filed the petition on April 20, 2007, long before the proclamation of the eventual winning candidate, the same
was filed on time.
24

Private respondent likewise posits that petitioner failed to comply with the one-year residency requirement for him to be able to
run for an elective office in Northern Kabuntalan. Petitioner applied for the transfer of his voting record on December 13, 2006,
and this was approved only on January 8, 2007.
25

G.R. No. 182369
During the pendency of G.R. No. 179695 with the Court, Dilangalen filed, on September 27, 2007, with the RTC of Cotabato a
motion to dismiss Election Case No. 07-022 on the ground that Fermin had no legal standing to file the said protest, the
COMELEC En Banc having already affirmed his disqualification as a candidate; and this Court, in the abovementioned case, did
not issue an order restraining the implementation of the assailed COMELEC resolutions.
The RTC, however, denied this motion on September 28, 2007. On motion for reconsideration, the trial court remained steadfast
in its stand that the election protest was separate and distinct from the COMELEC proceedings, and that, unless restrained by
the proper authority, it would continue hearing the protest.
26

Assailing the RTCs denial of his motions, Dilangalen filed a Petition for Certiorari and Prohibition
27
docketed as SPR No. 45-
2007 with the COMELEC. On February 14, 2008, the COMELEC 1
st
Division set aside the aforesaid orders of the trial court for
having been issued with grave abuse of discretion, prohibited the said court from acting on and proceeding with the protest, and
ordered it to dismiss the same.
28
The COMELEC En Banc, on March 13, 2008, denied petitioners motion for the reconsideration
of the divisions ruling on account of Fermins failure to pay the required fees. It further directed the issuance of an entry of
judgment in the said case.
29
On March 26, 2008, the ECAD recorded the finality of the ruling in SPR No. 45-2007 in the Book of
Entries of Judgments.
30

These developments prompted Fermin to file another certiorari petition before this Court, docketed as G.R. No. 182369. In this
petition, Fermin raises the following issues for our resolution:
A.
Whether or not public respondent has departed from the accepted and usual course of its rules of procedure, as
to call for an exercise of the power of supervision by the Honorable Court.
B.
Whether or not public respondent in taking cognizance of the certiorari and prohibition not in aid of its appellate
jurisdiction, acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or in
(sic) excess [of jurisdiction].
C.
Whether or not public respondent, in ordering Judge Ibrahim to dismiss the election protest case, acted without or
in excess of jurisdiction, or with grave abuse of discretion amounting to lack or in (sic) excess of jurisdiction.
D.
Whether or not public respondent, in not uniformly observing its process in the service of its resolution and/or
order, had denied to petitioner the equal protection of the law.
E.
Whether or not the petition for certiorari and prohibition is dismissible in view of the pendency of another action
and whereby the result of the first action is determinative of the second action in any event and regardless of
which party is successful.
F.
Whether or not there is forum shopping.
G.
Whether or not the public respondent, acting not in aid of its appellate jurisdiction, has authority to issue TRO
and/or Preliminary Injunction as ancillary remedy of the original action for certiorari and prohibition.
H.
Whether or not public respondent has jurisdiction to divest the Court of Judge Ibrahim of its jurisdiction on the
election protest case.
31

The Court, on April 29, 2008, initially dismissed the said petition.
32
Fermin subsequently filed in succession his motions for
reconsideration and for the consolidation of G.R. Nos. 179695 & 182369. Considering that the two petitions were interrelated, the
Court resolved to consolidate them.
The Issues
The primordial issues in these consolidated cases may be encapsulated, as follows:
(1) Whether or not the Dilangalen petition is one under Section 68 or Section 78 of the OEC;
(2) Whether or not it was filed on time;
(3) Whether or not the COMELEC gravely abuse its discretion when it declared petitioner as not a resident of the locality for at
least one year prior to the May 14, 2007 elections; and
(4) Whether or not the COMELEC gravely abuse its discretion when it ordered the dismissal of Election Case No. 07-022 on the
ground that Fermin had no legal standing to file the protest.
Our Ruling
I.
Pivotal in the ascertainment of the timeliness of the Dilangalen petition is its proper characterization.
As aforesaid, petitioner, on the one hand, argues that the Dilangalen petition was filed pursuant to Section 78 of the OEC; while
private respondent counters that the same is based on Section 68 of the Code.
After studying the said petition in detail, the Court finds that the same is in the nature of a petition to deny due course to or cancel
a CoC under Section 78
33
of the OEC. The petition contains the essential allegations of a "Section 78" petition, namely: (1) the
candidate made a representation in his certificate; (2) the representation pertains to a material matter which would affect the
substantive rights of the candidate (the right to run for the election for which he filed his certificate); and (3) the candidate made
the false representation with the intention to deceive the electorate as to his qualification for public office or deliberately
attempted to mislead, misinform, or hide a fact which would otherwise render him ineligible.
34
It likewise appropriately raises a
question on a candidates eligibility for public office, in this case, his possession of the one-year residency requirement under the
law.
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of qualifications but
on a finding that the candidate made a material representation that is false, which may relate to the qualifications required of the
public office he/she is running for. It is noted that the candidate states in his/her CoC that he/she is eligible for the office he/she
seeks. Section 78 of the OEC, therefore, is to be read in relation to the constitutional
35
and statutory
36
provisions
on qualifications or eligibility for public office. If the candidate subsequently states a material representation in the CoC
that is false, the COMELEC, following the law, is empowered to deny due course to or cancel such certificate.
37
Indeed,
the Court has already likened a proceeding under Section 78 to a quo warranto proceeding under Section 253
38
of the OEC since
they both deal with the eligibility or qualification of a candidate,
39
with the distinction mainly in the fact that a "Section 78" petition
is filed before proclamation, while a petition for quo warranto is filed after proclamation of the wining candidate.
At this point, we must stress that a "Section 78" petition ought not to be interchanged or confused with a "Section 68"
petition. They are different remedies, based on different grounds, and resulting in different eventualities. Private
respondents insistence, therefore, that the petition it filed before the COMELEC in SPA No. 07-372 is in the nature of a
disqualification case under Section 68, as it is in fact captioned a "Petition for Disqualification," does not persuade the Court.
The ground raised in the Dilangalen petition is that Fermin allegedly lacked one of the qualifications to be elected as mayor of
Northern Kabuntalan, i.e., he had not established residence in the said locality for at least one year immediately preceding the
election. Failure to meet the one-year residency requirement for the public office is not a ground for the "disqualification" of a
candidate under Section 68. The provision only refers to the commission of prohibited acts and the possession of a permanent
resident status in a foreign country as grounds for disqualification, thus:
SEC. 68. Disqualifications.Any candidate who, in an action or protest in which he is a party is declared by final
decision of a competent court guilty of, or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess of
that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95, 96,
97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, subparagraph 6,
shall be disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person
who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run for any elective
office under this Code, unless said person has waived his status as a permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided for in the election laws.
Likewise, the other provisions of law referring to "disqualification" do not include the lack of the one-year residency qualification
as a ground therefor, thus:
Sections 12 of the OEC
SEC. 12. Disqualifications.Any person who has been declared by competent authority insane or
incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion, or for any
offense for which he has been sentenced to a penalty of more than eighteen months or for a crime
involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has
been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by
competent authority that said insanity or incompetence had been removed or after the expiration of a
period of five years from his service or sentence, unless within the same period he again becomes
disqualified.
Section 40 of the Local Government Code (LGC)
40

SECTION 40. DisqualificationsThe following persons are disqualified from running for any elective local
position:
(a) Those sentence by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad
and continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded.
Considering that the Dilangalen petition does not state any of these grounds for disqualification, it cannot be categorized as a
"Section 68" petition.
To emphasize, a petition for disqualification, on the one hand, can be premised on Section 12 or 68 of the OEC, or Section 40 of
the LGC. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement of a material
representation in the said certificate that is false. The petitions also have different effects. While a person who is disqualified
under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is cancelled or denied due course
under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. Thus, in Miranda v. Abaya,
41
this Court made
the distinction that a candidate who is disqualified under Section 68 can validly be substituted under Section 77 of the OEC
because he/she remains a candidate until disqualified; but a person whose CoC has been denied due course or cancelled under
Section 78 cannot be substituted because he/she is never considered a candidate.
42

In support of his claim that he actually filed a "petition for disqualification" and not a "petition to deny due course to or cancel a
CoC," Dilangalen takes refuge in Rule 25 of the COMELEC Rules of Procedure,
43
specifically Section 1
44
thereof, to the extent
that it states, "[a]ny candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by
existing law x x x may be disqualified from continuing as a candidate," and COMELEC Resolution No. 7800
45
(Rules Delegating
to COMELEC Field Officials the Authority to Hear and Receive Evidence in Disqualification Cases Filed in Connection with the
May 14, 2007 National and Local Elections), which states in Section 5(C)(1) and (3)(a)(4) that:
Sec. 5. Procedure in filing petitions.For purposes of the preceding section, the following procedure shall be
observed:
x x x x
C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE OMNIBUS ELECTION CODE
AND PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SOME GROUNDS FOR
DISQUALIFICATION
1) A verified petition to disqualify a candidate pursuant to Sec. 68 of the OEC and the verified petition to disqualify
a candidate for lack of qualifications or possessing some grounds for disqualification may be filed on any day
after the last day for filing of certificates of candidacy but not later than the date of proclamation.
x x x x
3) The petition to disqualify a candidate for lack of qualification or possessing some grounds for disqualification,
shall be filed in ten (10) legible copies with the concerned office mentioned in Sec. 3 hereof, personally or through
a duly authorized representative by any person of voting age, or duly registered political party, organization or
coalition of political parties on the grounds that any candidate does not possess all the qualifications of a
candidate as provided for by the constitution or by existing law, or who possesses some grounds for
disqualification,
3.a. Disqualification under existing election laws:
1. For not being a citizen of the Philippines;
2. For being a permanent resident of or an immigrant to a foreign country;
3. For lack of the required age;
4. For lack of residence;
5. For not being a registered voter;
6. For not being able to read and write;
7. In case of a party-list nominee, for not being a bona fide member of the party or organization which he
seeks to represent for at least ninety (90) days immediately preceding the day of the election. [Emphasis
supplied.]
We disagree. A COMELEC rule or resolution cannot supplant or vary the legislative enactments that distinguish the grounds for
disqualification from those of ineligibility, and the appropriate proceedings to raise the said grounds. In other words, Rule 25 and
COMELEC Resolution No. 7800 cannot supersede the dissimilar requirements of the law for the filing of a petition for
disqualification under Section 68, and a petition for the denial of due course to or cancellation of CoC under Section 78 of the
OEC.
46
As aptly observed by the eminent constitutionalist, Supreme Court Justice Vicente V. Mendoza, in his separate opinion
in Romualdez-Marcos v. Commission on Elections:
47

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the
COMELEC amended its rules on February 15, 1993 so as to provide in Rule 25, 1 the following:
Grounds for disqualification. Any candidate who does not possess all the qualifications of a candidate
as provided for by the Constitution or by existing law or who commits any act declared by law to be
grounds for disqualification may be disqualified from continuing as a candidate.
The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere
rule. Such an act is equivalent to the creation of a cause of action which is a substantive matter which the
COMELEC, in the exercise of its rule-making power under Art. IX, A, 6 of the Constitution, cannot do. It is
noteworthy that the Constitution withholds from the COMELEC even the power to decide cases involving the right
to vote, which essentially involves an inquiry into qualifications based on age, residence and citizenship of voters.
[Art. IX, C, 2(3)]
The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for
disqualification is contrary to the evident intention of the law. For not only in their grounds but also in
their consequences are proceedings for "disqualification" different from those for a declaration of
"ineligibility." "Disqualification" proceedings, as already stated, are based on grounds specified in 12
and 68 of the Omnibus Election Code and in 40 of the Local Government Code and are for the purpose
of barring an individual from becoming a candidate or from continuing as a candidate for public office. In
a word, their purpose is to eliminate a candidate from the race either from the start or during its progress.
"Ineligibility," on the other hand, refers to the lack of the qualifications prescribed in the Constitution or
the statutes for holding public office and the purpose of the proceedings for declaration of ineligibility is
to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public office does not imply that he is
not disqualified from becoming a candidate or continuing as a candidate for a public office and vice-
versa. We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the
qualifications prescribed in 2 of the law does not imply that he does not suffer from any of [the] disqualifications
provided in 4.
Indeed, provisions for disqualifications on the ground that the candidate is guilty of prohibited election practices or
offenses, like other pre-proclamation remedies, are aimed at the detestable practice of "grabbing the
proclamation and prolonging the election protest," through the use of "manufactured" election returns or resort to
other trickery for the purpose of altering the results of the election. This rationale does not apply to cases for
determining a candidates qualifications for office before the election. To the contrary, it is the candidate against
whom a proceeding for disqualification is brought who could be prejudiced because he could be prevented from
assuming office even though in the end he prevails.
48

Furthermore, the procedure laid down in the said Rule 25 of the COMELEC Rules of Procedure cannot be used in "Section 78"
proceedings, precisely because a different rule, Rule 23,
49
specifically governs petitions to deny due course to or cancel CoCs.
II.
Having thus determined that the Dilangalen petition is one under Section 78 of the OEC, the Court now declares that the same
has to comply with the 25-day statutory period for its filing. Aznar v. Commission on Elections
50
andLoong v. Commission on
Elections
51
give ascendancy to the express mandate of the law that "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." Construed in relation to reglementary periods and the
principles of prescription, the dismissal of "Section 78" petitions filed beyond the 25-day period must come as a matter of course.
We find it necessary to point out that Sections 5 and 7
52
of Republic Act (R.A.) No. 6646,
53
contrary to the erroneous arguments
of both parties, did not in any way amend the period for filing "Section 78" petitions. While Section 7 of the said law makes
reference to Section 5 on the procedure in the conduct of cases for the denial of due course to the CoCs of nuisance
candidates
54
(retired Chief Justice Hilario G. Davide, Jr., in his dissenting opinion in Aquino v. Commission on
Elections
55
explains that "the procedure hereinabove provided mentioned in Section 7 cannot be construed to refer to Section 6
which does not provide for a procedure but for the effects of disqualification cases, [but] can only refer to the procedure provided
in Section 5 of the said Act on nuisance candidates x x x."), the same cannot be taken to mean that the 25-day period for filing
"Section 78" petitions under the OEC is changed to 5 days counted from the last day for the filing of CoCs. The clear language of
Section 78 certainly cannot be amended or modified by the mere reference in a subsequent statute to the use of a procedure
specifically intended for another type of action. Cardinal is the rule in statutory construction that repeals by implication are
disfavored and will not be so declared by the Court unless the intent of the legislators is manifest.
56
In addition, it is noteworthy
that Loong,
57
which upheld the 25-day period for filing "Section 78" petitions, was decided long after the enactment of R.A. 6646.
In this regard, we therefore find as contrary to the unequivocal mandate of the law, Rule 23, Section 2 of the COMELEC Rules of
Procedure which states:
Sec. 2. Period to File Petition.The petition must be filed within five (5) days following the last day for the filing of
certificates of candidacy.
As the law stands, the petition to deny due course to or cancel a CoC "may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy."
Accordingly, it is necessary to determine when Fermin filed his CoC in order to ascertain whether the Dilangalen petition filed on
April 20, 2007 was well within the restrictive 25-day period. If it was not, then the COMELEC should have, as discussed above,
dismissed the petition outright.
The record in these cases reveals that Fermin filed his CoC for mayor of Northern Kabuntalan for the May 14, 2007 National and
Local Elections on March 29, 2007.
58
It is clear therefore that the petition to deny due course to or cancel Fermins CoC was filed
by Dilangalen well within the 25-day reglementary period. The COMELEC therefore did not abuse its discretion, much more
gravely, when it did not dismiss the petition outright.
III.
However, the Court finds the COMELEC to have gravely abused its discretion when it precipitately declared that Fermin was not
a resident of Northern Kabuntalan for at least one year prior to the said elections.
In its assailed June 29, 2007 Resolution,
59
the COMELEC ruled as follows:
In the petitioners memorandum, an authenticated copy of the respondents oath of office subscribed and sworn
to before Datu Andal Ampatuan, Governor Maguindanao Province, it was stated that respondents residence is
at Barangay Payan, Maguindanao (sic) as of April 27, 2006. Clearly the respondent is not a resident of Northern
Kabuntalan earlier than 15 May 2006 as his very own oath of office would reveal that he is really a resident
of Barangay Payan, Kabuntalan less than 365 days immediately preceding the May 14, 2007 elections. He is a
resident of a barangay not a component of the local government unit in which he seeks to be elected as of May
15, 2006 and is therefore not qualified or eligible to seek election as mayor in the said municipality.
60

Obviously, the COMELEC relied on a single piece of evidence to support its finding that petitioner was not a resident
of Barangay Indatuan, Northern Kabuntalan, i.e., the oath of office subscribed and sworn to before Governor Datu Andal
Ampatuan, in which petitioner indicated that he was a resident of Barangay Payan, Kabuntalan as of April 27, 2006. However,
this single piece of evidence does not necessarily support a finding that petitioner was not a resident of Northern Kabuntalan as
of May 14, 2006, or one year prior to the May 14, 2007 elections.
61
Petitioner merely admitted that he was a resident of another
locality as of April 27, 2006, which was more than a year before the elections. It is not inconsistent with his subsequent claim that
he complied with the residency requirement for the elective office, as petitioner could have transferred to Barangay Indatuan after
April 27, 2006, on or before May 14, 2006.
Neither does this evidence support the allegation that petitioner failed to comply with the residency requirement for the transfer of
his voting record from Barangay Payan to Barangay Indatuan. Given that a voter is required to reside in the place wherein he
proposes to vote only for six months immediately preceding the election,
62
petitioners application for transfer on December 13,
2006 does not contradict his earlier admission that he was a resident of Barangay Payan as of April 27, 2006. Be that as it may,
the issue involved in the Dilangalen petition is whether or not petitioner made a material representation that is false in his CoC,
and not in his application for the transfer of his registration and voting record.
The foregoing considered, the Court finds that the Dilangalen petition does not make out a prima facie case. Its dismissal is
therefore warranted. We emphasize that the mere filing of a petition and the convenient allegation therein that a candidate does
not reside in the locality where he seeks to be elected is insufficient to effect the cancellation of his CoC. Convincing evidence
must substantiate every allegation.
63
A litigating party is said to have a prima facie case when the evidence in his favor is
sufficiently strong for his opponent to be called on to answer it. A prima facie case, then, is one which is established by sufficient
evidence and can be overthrown only by rebutting evidence adduced on the other side.
64

IV.
In light of the foregoing disquisition, the COMELECs order for the dismissal of Fermins election protest is tainted with grave
abuse of discretion, considering that the same is premised on Fermins alleged lack of legal standing to file the protest, which, in
turn, is based on Fermins alleged lack of residency qualification. With our disposition herein that the Dilangalen petition should
be dismissed, a disquisition that Fermin has no standing as a candidate would be reckless and improper.
WHEREFORE, premises considered, the petitions for certiorari are GRANTED. The assailed issuances of the COMELEC
are ANNULLED and SET ASIDE.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice

WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice
CONSUELO YNARES-SANTIAGO
Associate Justice
ANTONIO T. CARPIO
Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
*
RENATO C. CORONA
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice
*
ADOLFO S. AZCUNA
Associate Justice
DANTE O. TINGA
Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
RUBEN T. REYES TERESITA J. LEONARDO-DE CASTRO
Associate Justice Associate Justice
ARTURO D. BRION
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
*
On official leave.
1
Rollo (G.R. No. 179695), pp. 36-39.
2
Id. at 33-35.
3
Rollo (G.R. No. 182369), pp. 67-76.
4
Id. at 79-80.
5
Id. at 81.
6
The Court, in the recently promulgated Sema v. Commission on Elections, G.R. No. 177597, July 16, 2008,
declared as void Muslim Mindanao Autonomy Act No. 201 creating the Province of Shariff Kabunsuan, although
there is still a pending Motion for Reconsideration.
7
Rollo (G.R. No. 179695), pp. 51-53.
8
Id. at 51.
9
Id. at 44.
10
Id. at 46.
11
Id. at 45-47.
12
Rollo (G.R. No. 182369), p. 271.
13
Rollo (G.R. No. 179695), pp. 55-56.
14
Id. at 55.
15
Id. at 68.
16
Id. at 10.
17
Id. at 36-39.
18
Id. at 37-38.
19
Id. at 33-34.
20
Id. at 11-12.
21
Batas Pambansa Blg. 881, approved on December 3, 1985.
22
Rollo (G.R. No. 179695), pp. 12-15.
23
Id. at 15-20.
24
Id. at 112-121.
25
Id. at 121-125.
26
Rollo (G.R. No. 182369), pp. 97-98.
27
Id. at 82-95.
28
Id. at 75.
29
Id. at 79-80.
30
Id. at 81.
31
Id. at 13-18.
32
Id. at 229.
33
Section 78 of the Omnibus Election Code provides:
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 notice and hearing, not later than fifteen days before
the election.
34
Salcedo II v. Commission on Elections, 371 Phil. 377, 388-389 (1999).
35
Art. VI, Sec. 3 which provides that:
Section 3. No person shall be a Senator unless he is a natural-born citizen of the Philippines, and, on the
day of the election, is at least thirty-five years of age, able to read and write, a registered voter, and a
resident of the Philippines for not less than two years immediately preceding the day of the election.
Art. VI, Sec. 6 which provides that:
Section 6. No person shall be a Member of the House of Representatives unless he is a natural-born
citizen of the Philippines, and, on the day of the election, is at least twenty-five years of age, able to read
and write, and, except the party-list representatives, a registered voter in the district in which he shall be
elected, and a resident thereof for a period of not less than one year immediately preceding the day of the
election.
Art. VII, Sec. 2 which provides that:
Section 2. No person may be elected President unless he is a natural-born citizen of the Philippines, a
registered voter, able to read and write, at least forty years of age on the day of the election, and a
resident of the Philippines for at least ten years immediately preceding such election.
Art. VII, Sec. 3 which pertinently provides that:
Section 3. There shall be a Vice-President who shall have the same qualifications and term of office and
be elected with and in the same manner as the President. x x x x
36
Sec. 39 of the Local Government Code which provides:
SECTION 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 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 language or dialect.
(b) Candidates for the position of governor, vice-governor, or member of the sangguniang panlalawigan,
or mayor, vice-mayor or member of the sangguniang panlungsod of highly urbanized cities must be at
least twenty-one (21) years of age on election day.
(c) Candidates for the position of mayor or vice-mayor of independent component cities, component cities,
or municipalities must be at least twenty-one (21) years of age on election day.
(d) Candidates for the position of member of the sangguniang panlungsod or sangguniang bayan must be
at least eighteen (18) years of age on election day.
(e) Candidates for the position of punong barangay or member of the sangguniang barangay must be at
least eighteen (18) years of age on election day.
(f) Candidates for the sangguniang kabataan must be at least fifteen (15) years of age but not more than
twenty-one (21) years of age on election day.
37
Salcedo II v. Commission on Elections, supra note 34, at 454.
38
Sec. 253 of the OEC provides:
Sec. 253. Petition for quo warranto.Any voter contesting the election of any Member of the Batasang
Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic
of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the
proclamation of the results of the election.
Any voter contesting the election of any municipal or barangay officer on the ground of ineligibility or of
disloyalty to the Republic of the Philippines shall file a sworn petition for quo warranto with the regional
trial court or metropolitan trial court, respectively, within ten days after the proclamation of the results of
the election.
39
Salcedo II v. Commission on Elections, supra note 34, at 387.
40
Republic Act No. 7160, which became effective on January 1, 1992.
41
370 Phil. 642 (1999).
42
Id. at 659.
43
Approved on February 15, 1993.
44
Rule 25, Sec. 1 of the COMELEC Rules of Procedure reads in full:
SECTION 1. Grounds for Disqualification.Any candidate who does not possess all the qualifications of a
candidate as provided for by the Constitution or by existing law or who commits any act declared by law to
be grounds for disqualification may be disqualified from continuing as a candidate. [Italics supplied.]
45
Promulgated on January 5, 2007.
46
Loong v. Commission on Elections, G.R. No. 93986, December 22, 1992, 216 SCRA 760, 767, cited by former
Chief Justice Hilario G. Davide, Jr. in his Dissenting Opinion in Aquino v. Commission on Elections, G.R. No.
120265, September 18, 1995, 248 SCRA 400, 445-447.
47
G.R. No. 119976, September 18, 1995, 248 SCRA 300.
48
Id. at 397-398. (Emphasis supplied.)
49
Rule 23 of the COMELEC Rules of Procedure provides:
Rule 23 Petition to Deny Due Course to or Cancel Certificates of Candidacy
Section 1. Grounds for Denial of Certificate of Candidacy.A petition to deny due course to or cancel a
certificate of candidacy for any elective office may be filed with the Law Department of the Commission by
any citizen of voting age or a duly registered political party, organization, or coalition of political parties on
the exclusive ground that any material representation contained therein as required by law is false.
Sec. 2. Period to File Petition.The petition must be filed within five (5) days following the last day for the
filing of certificates of candidacy.
Sec. 3. Summary Proceeding.The petition shall be heard summarily after due notice.
Sec. 4. Delegation of Reception of Evidence.The Commission may designate any of its officials who are
members of the Philippine Bar to hear the case and to receive evidence.
50
G.R. No. 83820, May 25, 1990, 185 SCRA 703,708-709.
51
G.R. No. 93986, December 22, 1992, 216 SCRA 760, 765-766.
52
Sections 5 and 7 of R.A. No. 6646 reads:
"Sec. 5. Procedure in Cases of Nuisance Candidates. - (a) A verified petition to declare a duly registered
candidate as a nuisance candidate under Section 69 of Batas Pambansa Blg. 881 shall be filed
personally or through duly authorized representative with the Commission by any registered candidate for
the same office within five (5) days from the last day for the filing of certificates of candidacy. Filing by
mail shall not be allowed.
"(b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the
respondent candidate together with a copy of the petition and its enclosures, if any.
"(c) The respondent shall be given three (3) days from receipt of the summons within which to file his
verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the petitioner. Grounds
for a motion to dismiss may be raised as affirmative defenses.
"(d) The Commission may designate any of its officials who are lawyers to hear the case and receive
evidence. The proceeding shall be summary in nature. In lieu of oral testimonies, the parties may be
required to submit position papers together with affidavits or counter-affidavits and other documentary
evidence. The hearing officer shall immediately submit to the Commission his findings, reports, and
recommendations within five (5) days from the completion of such submission of evidence. The
Commission shall render its decision within five (5) days from receipt thereof.
"(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy
thereof by the parties, be final and executory unless stayed by the Supreme Court.
"(f) The Commission shall within twenty-four hours, through the fastest available means, disseminate its
decision or the decision of the Supreme Court to the city or municipal election registrars, boards of
election inspectors and the general public in the political subdivision concerned.
"x x x x
"Sec. 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."
53
Entitled "AN ACT INTRODUCING ADDITIONAL REFORMS IN THE ELECTORAL SYSTEM AND FOR OTHER
PURPOSES;" approved on January 5, 1988.
54
Section 69 of the OEC provides that: "The Commission may, motu propio or upon a verified petition of an
interested party, refuse to give due course to or cancel a certificate of candidacy if it is shown that said certificate
has been filed to put the election process in mockery or disrepute or to cause confusion among voters by the
similarity of the names of the registered candidates or by other circumstances or acts which clearly demonstrate
that the candidate has no bona fide intention to run for the office for which the certificate of candidacy has been
filed and thus prevent a faithful determination of the true will of the electorate."
55
G.R. No. 120265, September 18, 1995, 248 SCRA 400, 448.
56
Tan v. Perea, G.R. No. 149743, February 18, 2005, 452 SCRA 53, 68.
57
Supra note 46.
58
Rollo (G.R. No. 182369), p. 271.
59
Supra note 1.
60
Id. at 37-38.
61
Supra note 36.
62
Section 9 of Republic Act No. 8189 or "The Voters Registration Act of 1996" provides:
Sec. 9. Who may Register. - All citizens of the Philippines not otherwise disqualified by law who are at
least eighteen (18) years of age, and who shall have resided in the Philippines for at least one (1) year,
and in the place wherein they propose to vote, for at least six (6) months immediately preceding
the election, may register as a voter.
Any person who temporarily resides in another city, municipality or country solely by reason of his
occupation, profession, employment in private or public service, educational activities, work in the military
or naval reservations within the Philippines, service in the Armed Forces of the Philippines, the National
Police Forces, or confinement or detention in government institutions in accordance with law, shall not be
deemed to have lost his original residence.
Any person, who, on the day of registration may not have reached the required age or period of residence
but, who, on the day of the election shall possess such qualifications, may register as a voter. (Emphasis
ours.)
63
See Mutilan v. Commission on Elections, G.R. No. 171248, April 2, 2007, 520 SCRA 152, 163; Pasandalan v.
Commission on Elections, 434 Phil. 161, 173 (2002).
64
Republic v. Sandiganbayan, 325 Phil. 762, 809 (1996).

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Republic of the Philippines
Supreme Court
Manila
EN BANC
ASHARY M. ALAUYA,
Clerk of Court,
Sharia District Court,
Marawi City,
Complainant,
- versus -
JUDGE CASAN ALI L.
LIMBONA, Sharia
Circuit Court, Lanao
del Sur,
Respondent.
A.M. No. SCC-98-4
Present:
CORONA, C.J.,
CARPIO
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.
Promulgated:
March 22, 2011
x---------------------------------------------------
-----x
D E C I S I O N
PER CURIAM:
Before the Court is the present administrative matter
against Judge Casan Ali Limbona, Tenth Sharia Circuit
Court (10
th
SCC), Tamparan, Lanao del Sur. This matter
is the subject of the Memorandum/Report of the Office of
the Court Administrator (OCA) dated August 7, 2000.[1]

The Factual Antecedents

The facts of the case, culled from the OCA report and the
case record, are summarized below.
(1) The OCA received on July 31, 1998 a letter dated
July 13, 1998 addressed to then Court Administrator
Alfredo L. Benipayo,[2] signed by Datu Ashary M. Alauya
(Alauya), Clerk of Court, 10
th
SSC, Marawi City.
Alauya reported that numerous verbal complaints had
been received against Judge Casan Ali Limbona (Judge
Limbona) for: (a) not reporting to his station at the SCC
in Tamparan, Lanao del Sur; (b) having filed a certificate
of candidacy as a party-list candidate of the
Development Foundation of the Philippines (DFP) while
serving in the Judiciary and while receiving his salary as
a judge; and (c) obtaining from the post office, without
sufficient authority, checks representing benefits for
court employees.
(2) A request from a concerned citizen[3] that the
court in Tamparan, Lanao del Sur, be moved to Cotobato
City where Judge Limbona resided since the judge had
been reporting to Tamparan only once a year since 1994.
Upon the OCAs inquiry,[4] the Commission on Elections
(COMELEC) confirmed that based on their records, a
certain Casan Ali L. Limbona filed his certificate as a
party-list candidate of the DFP in the May 11, 1998
elections.[5]
The OCA confirmed, too, that Judge Limbona failed to
submit any notice or information about his candidacy; for
this reason, the Judge continued to draw his salary as a
judge. The OCA forthwith advised the Finance Services
Office to discontinue the payment of Judge Limbonas
salary.
On January 27, 1999, the Court resolved to: (1) treat
Alauyas letter as an administrative complaint against
Judge Limbona; (2) direct Judge Limbona to comment;
(3) explain why he did not inform the OCA that he ran
for public office in the May 1998 elections; and (4)
immediately refund the salaries/allowances he received
from March to November 1998.[6]
In a letter dated December 28, 1998 addressed to the
OCA, Judge Limbona denied that he consented to be a
nominee of DFP in the May 1998 elections. To prove his
point, he submitted the affidavit[7] of Datu Solaiman A.
Malambut, DFPs National President, admitting sole
responsibility for his honest mistake and malicious
negligence and act of desperation in including the name
of Judge Limbona among the partys list of nominees.
While Judge Limbona professed awareness of the rule
that appointed government officials are considered
resigned on the date of the filing of their certificates of
candidacy, he was not aware of any legal opinion or
ruling applicable to his case.
Alauya, on the other hand, denied authorship of the
letter against Judge Limbona and requested that his
name be stricken from the records as complainant in the
case.[8]
In his comment dated April 26, 1998,[9] Judge Limbona
branded as purely malicious and unfounded the
allegations that he and his staff were not reporting at the
10th SCC in Tamparan, Lanao del Sur. In support of his
claim, the judge submitted the joint affidavit[10] of
several members of his staff certifying that the public
had been transacting business daily with their office at
the Memorial Building in Tamparan. Members of his staff
also vouched for Judge Limbonas leadership,
intelligence, diligence and contributions to the welfare of
the community. The judge also submitted a certification
dated April 8, 1999[11] from the municipal mayor of
Tamparan, Datu Topa-an D. Disomimba, attesting that
the establishment of the 10
th
SCC in Tamparan has contributed to the
maintenance of peace and order in the area, and that Judge Limbonas leadership has
been excellent.
Judge Limbona reiterated his denial that he filed a
certificate of candidacy for the May 11, 1998
elections. He explained that he had no knowledge of his
supposed candidacy until he learned about it from the
OCA and this Court. Because he was never a candidate,
he continued performing his duties as a judge.
Also on April 26, 1999, Judge Limbona filed a motion for
reconsideration[12] of the Courts January 27, 1999
Resolution maintaining his lack of knowledge of the filing
of his candidacy. On May 10, 1999, Judge Limbona filed
another motion for reconsideration[13] of the same
Resolution, submitting fresh arguments as follows:
(1) his alleged certificate of candidacy and
acceptance bore discrepancies in the signature,
thumbprints and community tax certificate numbers;
(2) the Courts order withholding the release of his
salaries without giving him the opportunity to be heard
violated his right to due process; and
(3) the resolution of the Court ordering him to
refund the salaries he received from March 26, 1998 to
November 30, 1998 likewise deprived him of due
process as it meant he had already been adjudged guilty
of the charges.
In a Memorandum/Report dated October 18, 1999,[14]
the OCA apprised the Court of developments in the
case. The OCA noted that the charges against Judge
Limbona that needed to be addressed were: (1) Judge
Limbonas alleged filing of a certificate of candidacy as a
party-list representative in the May 1998 elections, in
violation of the rule on partisan political activity, and (2)
Judge Limbonas neglect of his duties as a judge.
On the first charge, the OCA disbelieved Judge Limbonas
assertion that he did not consent to the inclusion of his
name in the certificate of candidacy filed before the
COMELEC and that his inclusion was purely due to the
carelessness of the person who prepared the
certificate. The OCA nevertheless took the view that a
positive identification of the judges participation in the
filing of the certificate of candidacy was needed to fully
resolve the matter.
The OCA, however, found that the second charge of non-
performance or neglect of duty (due to absenteeism)
stood unsubstantiated and was, in fact, negated by the
joint affidavit[15] of the staff members of the 10
th
SCC
in Tamparan, Lanao del Sur and the certification[16] of
the municipal mayor vouching for the judges leadership,
diligence and contribution to the maintenance of peace
and order in the community.
The OCA recommended that the National Bureau of
Investigation (NBI) be asked to determine the
authenticity of Judge Limbonas signatures on the
certificate of candidacy as DFP representative in the May
1998 congressional elections, and that Judge Limbona be
suspended as a judge until the matter is finally resolved.
The Court (Third Division) approved the OCA
recommendation.[17]
On July 7, 2000, the NBI, through Deputy Director
Sancho K. Chan, Jr., submitted to the OCA its report on
the matter[18] with the following findings:
FINDINGS: Comparative examination of the specimens
received under the stereocopic microscope, hand lens
and with the aid of photographic enlargement reveals
significant similarities in habit handwriting characteristics
existing between the questioned and the standard
sample signatures of Casan Ali Limbona, to wit:
- structural pattern of letter elements -
- Directions of strokes
- Manner of execution
- Other identifying details
CONCLUSION: The questioned and the standard sample
signatures Casan Ali L. Limbona WERE WRITTEN by one
and the same person.
The NBI findings and conclusion that Judge Limbona
himself signed the certificate of candidacy validated the
OCAs initial doubts on Judge Limbonas avowals of
innocence about his participation in the May 1998
elections and his claim that the signatures appearing on
the certificate of candidacy were forged.
The OCA Recommendation and Related Incidents
The OCA recommended that Judge Limbona be found
guilty of dishonesty and be dismissed from the service
with forfeiture of retirement and other privileges, if any,
and be barred from re-employment in the public service,
and that he be made to refund all salaries/allowances he
received from March 26, 1998 to November 30, 1998
without prejudice to the filing of an appropriate case in
court.
In a related development, the Court (Second Division)
issued a Resolution dated June 16, 2003 in A.M. No.
SCC-03-08, entitledEmelyn A. Limbona v. Judge Casan
Ali Limbona, forwarding to the Third Division for
consideration under the present case, the charge that
the respondent judge continued to perform his functions
and to receive his salaries as judge after he had filed a
certificate of candidacy in the May 1998 elections.
The Courts Ruling
We find the OCAs recommendation to be well-
founded. Judge
Limbona committed grave offenses which rendered h
im unfit to continue as a member of the
Judiciary. When he was appointed as a judge,
he took an oath to uphold the law, yet in filing a
certificate of candidacy as a party-list representative in
the May 1998 elections without giving up his judicial
post, Judge Limbona violated not only the law, but the
constitutional mandate that no officer or employee in
the civil service shall engage directly or indirectly, in any
electioneering or partisan political campaign.[19]
The NBI investigation on the authenticity of Judge
Limbonas signatures on the certificate of candidacy
unqualifiedly established that the judge signed the
certificate of candidacy for the May 1998 elections, thus
negating his claim that his signatures were forged. The
filing of a certificate of candidacy is a partisan political
activity as the candidate thereby offers himself to the
electorate for an elective post.
For his continued performance of his judicial duties
despite his candidacy for a political post, Judge Limbona
is guilty of grave misconduct in office. While we cannot
interfere with Judge Limbonas political aspirations, we
cannot allow him to pursue his political goals while still
on the bench. We cannot likewise allow him to deceive
the Judiciary. We find relevant the OCAs observation on
this point:
x x x Judge Limbonas concealment of his direct
participation in the 1998 elections while remaining in the
judiciarys payroll and his vain attempt to mislead the
Court by his claim of forgery, are patent acts of
dishonesty rendering him unfit to remain in the
judiciary.
In light of the gravity of Judge Limbonas infractions,
we find OCAs recommended penalty of dismissal to be
appropriate. Under the Rules of Court, dishonesty and
gross misconduct are punishable by dismissal.[20] We
also approve the OCA recommendation that Judge
Limbona be made to refund the salaries/allowances he
received from March 26, 1998 to November 30, 1998.
With this ruling, we likewise resolve the charge against
Judge Limbona referred to us by the Courts Second
Division in its June 16, 2003 Resolution in A.M. No. SCC-
03-08 that the respondent judge continued to perform
judicial functions and to receive his salaries as judge
after he had filed a certificate of candidacy in the May
1998 elections.
WHEREFORE, premises considered, Judge Casan Ali L.
Limbona is declared GUILTY OF GROSS
MISCONDUCT andDISHONESTY and is
declared DISMISSED from the service effective March
26, 1998, the date of the filing of his certificate of
candidacy, with FORFEITURE of all accrued retirement
benefits and other monetary entitlements, if any. He
is BARREDfrom re-employment in the government,
including government-owned and controlled corporation.
Judge Limbona is DIRECTED TO REFUND the salaries,
allowances and other benefits he received from March
26, 1998 to November 30, 1998, within 10 days from the
finality of this Decision.
This Decision is without prejudice to appropriate criminal
and civil cases that may be filed against Judge Limbona
for the acts he committed. Let a copy of this Decision be
served on the Ombudsman for whatever action it may
deem appropriate.
SO ORDERED.
RENATO C. CORONA
Chief Justice
ANTONIO T. CARPIO CONCHITA CARPIO
MORALES
Associate Justice Associate Justice
PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO
B. NACHURA
Associate Justice Associate
Justice
TERESITA J. LEONARDO-DE
CASTRO ARTURO D. BRION
Associate Justice Associate
Justice


DIOSDADO M. PERALTA LUCAS P.
BERSAMIN
Associate Justice Associate Justice


MARIANO C. DEL
CASTILLO ROBERTO A. ABAD
Associate Justice Associate
Justice
MARTIN S. VILLARAMA, JR. JOSE PORTUGAL
PEREZ
Associate Justice Associate Justice
JOSE CATRAL MENDOZA MARIA LOURDES
P.A. SERENO
Associate Justice Associate Justice


[1] Rollo, pp. 129-135.
[2] Id. at 1.
[3] Id. at 2.
[4] Id. at 3; letter dated October 15, 1998.
[5] Id. at 4; letter dated November 5, 1998.
[6] Id. at 8; Resolution dated January 27, 1999.
[7] Id. at 28.
[8] Id. at 96.
[9] Id. at 60.
[10] Id. at 72-73.
[11] Id. at 48.
[12] Id. at 31-32; annexed to Judge Limbonas
Comment.
[13] Id. at 33-35.
[14] Id. at 100-104.
[15] Supra note 10.
[16] Supra note 11.
[17] Rollo, p. 107.
[18] Id. at 123-125.
[19] CONSTITUTION OF THE REPUBLIC OF THE
PHILIPPINES, Article IX B (4); see also Book V, Section
55.
[20] Rule 140, Sections 2 and 3.
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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 198742 August 10, 2012
TEODORA SOBEJANA-CONDON, Petitioner,
vs.
COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR and WILMA P. PAGADUAN,Respondents.
D E C I S I O N
REYES, J .:
Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2) of Republic Act (R.A.) No. 9225 renders
a dual citizen ineligible to run for and thus hold any elective public office.
The Case
At bar is a special civil action for certiorari
1
under Rule 64 of the Rules of Court seeking to nullify Resolution
2
dated September 6,
2011 of the Commission on Elections (COMELEC) en banc in EAC (AE) No. A-44-2010. The assailed resolution (a) reversed the
Order
3
dated November 30, 2010 of COMELEC Second Division dismissing petitioners appeal; and (b) affirmed the consolidated
Decision
4
dated October 22, 2010 of the Regional Trial Court (RTC), Bauang, La Union, Branch 33, declaring petitioner Teodora
Sobejana-Condon (petitioner) disqualified and ineligible to her position as Vice-Mayor of Caba, La Union.
The Undisputed Facts
The petitioner is a natural-born Filipino citizen having been born of Filipino parents on August 8, 1944. On December 13, 1984,
she became a naturalized Australian citizen owing to her marriage to a certain Kevin Thomas Condon.
On December 2, 2005, she filed an application to re-acquire Philippine citizenship before the Philippine Embassy in Canberra,
Australia pursuant to Section 3 of R.A. No. 9225 otherwise known as the "Citizenship Retention and Re-Acquisition Act of
2003."
5
The application was approved and the petitioner took her oath of allegiance to the Republic of the Philippines on
December 5, 2005.
On September 18, 2006, the petitioner filed an unsworn Declaration of Renunciation of Australian Citizenshipbefore the
Department of Immigration and Indigenous Affairs, Canberra, Australia, which in turn issued the Order dated September 27,
2006 certifying that she has ceased to be an Australian citizen.
6

The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007 elections. She lost in her bid. She again sought
elective office during the May 10, 2010 elections this time for the position of Vice-Mayor. She obtained the highest numbers of
votes and was proclaimed as the winning candidate. She took her oath of office on May 13, 2010.
Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan
7
and Luis M. Bautista,
8
(private respondents) all
registered voters of Caba, La Union, filed separate petitions for quo warranto questioning the petitioners eligibility before the
RTC. The petitions similarly sought the petitioners disqualification from holding her elective post on the ground that she is a dual
citizen and that she failed to execute a "personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath" as imposed by Section 5(2) of R.A. No. 9225.
The petitioner denied being a dual citizen and averred that since September 27, 2006, she ceased to be an Australian citizen.
She claimed that the Declaration of Renunciation of Australian Citizenship she executed in Australia sufficiently complied with
Section 5(2), R.A. No. 9225 and that her act of running for public office is a clear abandonment of her Australian citizenship.
Ruling of the RTC
In its consolidated Decision dated October 22, 2010, the trial court held that the petitioners failure to comply with Section 5(2) of
R.A. No. 9225 rendered her ineligible to run and hold public office. As admitted by the petitioner herself during trial, the personal
declaration of renunciation she filed in Australia was not under oath. The law clearly mandates that the document containing the
renunciation of foreign citizenship must be sworn before any public officer authorized to administer oath. Consequently, the
RTCs decision disposed as follows:
WHEREFORE, premises considered, the Court renders judgment in FAVOR of [private respondents] and AGAINST (petitioner):
1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON, disqualified and ineligible to hold the office of Vice-Mayor of
Caba, La Union;
2) NULLIFYING her proclamation as the winning candidate for Vice-Mayor of said municipality; and
3) DECLARING the position of Vice-Mayor in said municipality vacant.
SO ORDERED.
9

Ruling of the COMELEC
The petitioner appealed to the COMELEC but the appeal was dismissed by the Second Division in its Order
10
dated November
30, 2010 for failure to pay the docket fees within the prescribed period. On motion for reconsideration, the appeal was reinstated
by the COMELEC en banc in its Resolution
11
dated September 6, 2011. In the same issuance, the substantive merits of the
appeal were given due course. The COMELEC en bancconcurred with the findings and conclusions of the RTC; it also granted
the Motion for Execution Pending Appealfiled by the private respondents.
The decretal portion of the resolution reads:
WHEREFORE, premises considered the Commission RESOLVED as it hereby RESOLVES as follows:
1. To DISMISS the instant appeal for lack of merit;
2. To AFFIRM the DECISION dated 22 October 2010 of the court a quo; and
3. To GRANT the Motion for Execution filed on November 12, 2010.
SO ORDERED.
12
(Emphasis supplied)
Hence, the present petition ascribing grave abuse of discretion to the COMELEC en banc.
The Petitioners Arguments
The petitioner contends that since she ceased to be an Australian citizen on September 27, 2006, she no longer held dual
citizenship and was only a Filipino citizen when she filed her certificate of candidacy as early as the 2007 elections. Hence, the
"personal and sworn renunciation of foreign citizenship" imposed by Section 5(2) of R.A. No. 9225 to dual citizens seeking
elective office does not apply to her.
She further argues that a sworn renunciation is a mere formal and not a mandatory requirement. In support thereof, she cites
portions of the Journal of the House of Representatives dated June 2 to 5, 2003 containing the sponsorship speech for House
Bill (H.B.) No. 4720, the precursor of R.A. No. 9225.
She claims that the private respondents are estopped from questioning her eligibility since they failed to do so when she filed
certificates of candidacy for the 2007 and 2010 elections.
Lastly, she disputes the power of the COMELEC en banc to: (a) take cognizance of the substantive merits of her appeal instead
of remanding the same to the COMELEC Second Division for the continuation of the appeal proceedings; and (b) allow the
execution pending appeal of the RTCs judgment.
The Issues
Posed for resolution are the following issues: I) Whether the COMELEC en banc may resolve the merits of an appeal after ruling
on its reinstatement; II) Whether the COMELEC en banc may order the execution of a judgment rendered by a trial court in an
election case; III) Whether the private respondents are barred from questioning the qualifications of the petitioner; and IV) For
purposes of determining the petitioners eligibility to run for public office, whether the "sworn renunciation of foreign citizenship" in
Section 5(2) of R.A. No. 9225 is a mere pro-forma requirement.
The Courts Ruling
I. An appeal may be simultaneously
reinstated and definitively resolved
by the COMELEC en banc in a
resolution disposing of a motion for
reconsideration.
The power to decide motions for reconsideration in election cases is arrogated unto the COMELEC en banc by Section 3, Article
IX-C of the Constitution, viz:
Sec. 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.
A complementary provision is present in Section 5(c), Rule 3 of the COMELEC Rules of Procedure, to wit:
Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except
motions on interlocutory orders of the division which shall be resolved by the division which issued the order.
Considering that the above cited provisos do not set any limits to the COMELEC en bancs prerogative in resolving a motion for
reconsideration, there is nothing to prevent the body from directly adjudicating the substantive merits of an appeal after ruling for
its reinstatement instead of remanding the same to the division that initially dismissed it.
We thus see no impropriety much more grave abuse of discretion on the part of the COMELEC en banc when it proceeded to
decide the substantive merits of the petitioners appeal after ruling for its reinstatement.
Further, records show that, in her motion for reconsideration before the COMELEC en banc, the petitioner not only proffered
arguments on the issue on docket fees but also on the issue of her eligibility. She even filed a supplemental motion for
reconsideration attaching therewith supporting documents
13
to her contention that she is no longer an Australian citizen. The
petitioner, after obtaining an unfavorable decision, cannot be permitted to disavow the en bancs exercise of discretion on the
substantial merits of her appeal when she herself invoked the same in the first place.
The fact that the COMELEC en banc had remanded similar appeals to the Division that initially dismissed them cannot serve as a
precedent to the disposition of the petitioners appeal. A decision or resolution of any adjudicating body can be disposed in
several ways. To sustain petitioners argument would be virtually putting a straightjacket on the COMELEC en bancs
adjudicatory powers.
More significantly, the remand of the appeal to the COMELEC Second Division would be unnecessarily circuitous and repugnant
to the rule on preferential disposition of quo warranto cases espoused in Rule 36, Section 15 of the COMELEC Rules of
Procedure.
14

II. The COMELEC en banc has the
power to order discretionary
execution of judgment.
We cannot subscribe to petitioners submission that the COMELEC en banc has no power to order the issuance of a writ of
execution and that such function belongs only to the court of origin.
There is no reason to dispute the COMELECs authority to order discretionary execution of judgment in view of the fact that the
suppletory application of the Rules of Court is expressly sanctioned by Section 1, Rule 41 of the COMELEC Rules of
Procedure.
15

Under Section 2, Rule 39 of the Rules of Court, execution pending appeal may be issued by an appellate court after the trial
court has lost jurisdiction. In Batul v. Bayron,
16
we stressed the import of the provision vis--vis election cases when we held that
judgments in election cases which may be executed pending appeal includes those decided by trial courts and those rendered by
the COMELEC whether in the exercise of its original or appellate jurisdiction.
III. Private respondents are not
estopped from questioning
petitioners eligibility to hold public
office.
The fact that the petitioners qualifications were not questioned when she filed certificates of candidacy for 2007 and 2010
elections cannot operate as an estoppel to the petition for quo warranto before the RTC.
Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two instances where a petition questioning the
qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised, to wit:
(1) Before election, pursuant to Section 78 thereof which provides that:
Sec. 78. Petition to deny due course or to 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; and
(2) After election, pursuant to Section 253 thereof, viz:
Sec. 253. Petition for quo warranto. Any voter contesting the election of any Member of the Batasang
Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic
of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the
proclamation of the results of the election. (Emphasis ours)
Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the twenty-five (25)-day
period prescribed by Section 78 of the Omnibus Election Code for whatever reasons, the elections laws do not leave him
completely helpless as he has another chance to raise the disqualification of the candidate by filing a petition for quo
warranto within ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the Omnibus
Election Code.
17

The above remedies were both available to the private respondents and their failure to utilize Section 78 of the Omnibus Election
Code cannot serve to bar them should they opt to file, as they did so file, a quo warranto petition under Section 253.
IV. Petitioner is disqualified from
running for elective office for
failure to renounce her Australian
citizenship in accordance with
Section 5(2) of R.A. No. 9225.
R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for natural-born citizens who have lost their Philippine
citizenship
18
by taking an oath of allegiance to the Republic, thus:
Section 3. Retention of Philippine Citizenship. Any provision of law to the contrary notwithstanding, natural-born citizens of the
Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby
deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic:
"I, _____________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the
Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby
declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto;
and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their
Philippine citizenship upon taking the aforesaid oath.
The oath is an abbreviated repatriation process that restores ones Filipino citizenship and all civil and political rights and
obligations concomitant therewith, subject to certain conditions imposed in Section 5, viz:
Sec. 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire Philippine citizenship under this Act shall enjoy
full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and
the following conditions:
(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution,
Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by
the Constitution 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;
(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and
its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the
country where they took that oath;
(4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to
engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to,
those who:
(a) are candidates for or are occupying any public office in the country of which they are
naturalized citizens; and/or
(b) are in active service as commissioned or non-commissioned officers in the armed forces of the
country which they are naturalized citizens. (Emphasis ours)
Under the provisions of the aforementioned law, the petitioner has validly re-acquired her Filipino citizenship when she took an
Oath of Allegiance to the Republic of the Philippines on December 5, 2005. At that point, she held dual citizenship, i.e.,
Australian and Philippine.
On September 18, 2006, or a year before she initially sought elective public office, she filed a renunciation of Australian
citizenship in Canberra, Australia. Admittedly, however, the same was not under oath contrary to the exact mandate of Section
5(2) that the renunciation of foreign citizenship must be sworn before an officer authorized to administer oath.
To obviate the fatal consequence of her inutile renunciation, the petitioner pleads the Court to interpret the "sworn renunciation of
any and all foreign citizenship" in Section 5(2) to be a mere pro forma requirement in conformity with the intent of the Legislature.
She anchors her submission on the statement made by Representative Javier during the floor deliberations on H.B. No. 4720,
the precursor of R.A. No. 9225.
At the outset, it bears stressing that the Courts duty to interpret the law according to its true intent is exercised only when the law
is ambiguous or of doubtful meaning. The first and fundamental duty of the Court is to apply the law. As such, when the law is
clear and free from any doubt, there is no occasion for construction or interpretation; there is only room for application.
19
Section
5(2) of R.A. No. 9225 is one such instance.
Ambiguity is a condition of admitting two or more meanings, of being understood in more than one way, or of referring to two or
more things at the same time. For a statute to be considered ambiguous, it must admit of two or more possible meanings.
20

The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC,
21
we declared its categorical and single
meaning: a Filipino American or any dual citizen cannot run for any elective public position in the Philippines unless he or she
personally swears to a renunciation of all foreign citizenship at the time of filing the certificate of candidacy. We also expounded
on the form of the renunciation and held that to be valid, the renunciation must be contained in an affidavit duly executed before
an officer of the law who is authorized to administer an oath stating in clear and unequivocal terms that affiant is renouncing all
foreign citizenship.
The same meaning was emphasized in Jacot v. Dal,
22
when we held that Filipinos re-acquiring or retaining their Philippine
citizenship under R.A. No. 9225 must explicitly renounce their foreign citizenship if they wish to run for elective posts in the
Philippines, thus:
The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those who
reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public officer authorized to
administer an oath simultaneous with or before the filing of the certificate of candidacy.
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a foreign
country, but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic
Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally execute a personal and sworn
renunciation of any and all foreign citizenship before an authorized public officer prior or simultaneous to the filing of their
certificates of candidacy, to qualify as candidates in Philippine elections.
Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any and all foreign
citizenship) requires of the Filipinos availing themselves of the benefits under the said Act to accomplish an undertaking other
than that which they have presumably complied with under Section 3 thereof (oath of allegiance to the Republic of the
Philippines). This is made clear in the discussion of the Bicameral Conference Committee on Disagreeing Provisions of House
Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic Act No. 9225), where the Hon. Chairman
Franklin Drilon and Hon. Representative Arthur Defensor explained to Hon. Representative Exequiel Javier that the oath of
allegiance is different from the renunciation of foreign citizenship;
x x x x
The intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine citizenship under Republic Act No.
9225 to take their oath of allegiance to the Republic of the Philippines, but also to explicitly renounce their foreign citizenship if
they wish to run for elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only have
one citizenship, namely, Philippine citizenship.
23
(Citation omitted and italics and underlining ours)
Hence, in De Guzman v. COMELEC,
24
we declared petitioner therein to be disqualified from running for the position of vice-
mayor for his failure to make a personal and sworn renunciation of his American citizenship.
We find no reason to depart from the mandatory nature infused by the above rulings to the phrase "sworn renunciation". The
language of the provision is plain and unambiguous. It expresses a single, definite, and sensible meaning and must thus be read
literally.
25
The foreign citizenship must be formally rejected through an affidavit duly sworn before an officer authorized to
administer oath.
It is conclusively presumed to be the meaning that the Legislature has intended to convey.
26
Even a resort to the Journal of the
House of Representatives invoked by the petitioner leads to the same inference, viz:
INTERPELLATION OF REP. JAVIER
Rep. Javier initially inquired whether under the Bill, dual citizenship is only limited to natural-born Filipinos and not to naturalized
Filipinos.
Rep. Libanan replied in the affirmative.
Rep. Javier subsequently adverted to Section 5 of the Bill which provides that natural-born Filipinos who have dual citizenship
shall continue to enjoy full civil and political rights. This being the case, he sought clarification as to whether they can indeed run
for public office provided that they renounce their foreign citizenship.
Rep. Libanan replied in the affirmative, citing that these citizens will only have to make a personal and sworn renunciation of
foreign citizenship before any authorized public officer.
Rep. Javier sought further clarification on this matter, citing that while the Bill provides them with full civil and political rights as
Filipino citizens, the measure also discriminates against them since they are required to make a sworn renunciation of their other
foreign citizenship if and when they run for public office. He thereafter proposed to delete this particular provision.
In his rejoinder, Rep. Libanan explained that this serves to erase all doubts regarding any issues that might be raised pertaining
to the citizenship of any candidate. He subsequently cited the case of Afroyim vs. Rusk, wherein the United States considered a
naturalized American still as an American citizen even when he cast his vote in Israel during one of its elections.
Rep. Javier however pointed out that the matter of voting is different because in voting, one is not required to renounce his
foreign citizenship. He pointed out that under the Bill, Filipinos who run for public office must renounce their foreign citizenship.
He pointed out further that this is a contradiction in the Bill.
Thereafter, Rep. Javier inquired whether Filipino citizens who had acquired foreign citizenship and are now entitled to reacquire
their Filipino citizenship will be considered as natural-born citizens. As such, he likewise inquired whether they will also be
considered qualified to run for the highest elective positions in the country.
Rep. Libanan replied in the affirmative, citing that the only requirement is that they make a sworn renunciation of their foreign
citizenship and that they comply with the residency and registration requirements as provided for in the Constitution.
Whereupon, Rep. Javier noted that under the Constitution, natural-born citizens are those who are citizens at the time of birth
without having to perform an act to complete or perfect his/her citizenship.
Rep. Libanan agreed therewith, citing that this is the reason why the Bill seeks the repeal of CA No. 63. The repeal, he said,
would help
Filipino citizens who acquired foreign citizenship to retain their citizenship. With regard then to Section 5 of the Bill, he explained
that the Committee had decided to include this provision because Section 18, Article XI of the Constitution provides for the
accountability of public officers.
In his rejoinder, Rep. Javier maintained that in this case, the sworn renunciation of a foreign citizenship will only become a pro
forma requirement.
On further queries of Rep. Javier, Rep. Libanan affirmed that natural-born Filipino citizens who became foreign citizens and who
have reacquired their Filipino citizenship under the Bill will be considered as natural-born citizens, and therefore qualified to run
for the presidency, the vice-presidency or for a seat in Congress. He also agreed with the observation of Rep. Javier that a
natural-born citizen is one who is a citizen of the country at the time of birth. He also explained that the Bill will, in effect, return to
a Filipino citizen who has acquired foreign citizenship, the status of being a natural-born citizen effective at the time he lost his
Filipino citizenship.
As a rejoinder, Rep. Javier opined that doing so would be discriminating against naturalized Filipino citizens and Filipino citizens
by election who are all disqualified to run for certain public offices. He then suggested that the Bill be amended by not
considering as natural-born citizens those Filipinos who had renounced their Filipino citizenship and acquired foreign citizenship.
He said that they should be considered as repatriated citizens.
In reply, Rep. Libanan assured Rep. Javier that the Committee will take note of the latters comments on the matter. He however
stressed that after a lengthy deliberation on the subject, the Committees on Justice, and Foreign Affairs had decided to revert
back to the status of being natural-born citizens those natural-born Filipino citizens who had acquired foreign citizenship but now
wished to reacquire their Filipino citizenship.
Rep. Javier then explained that a Filipina who loses her Filipino citizenship by virtue of her marriage to a foreigner can regain her
repatriated Filipino citizenship, upon the death of her husband, by simply taking her oath before the Department of Justice (DOJ).
Rep. Javier said that he does not oppose the Bill but only wants to be fair to other Filipino citizens who are not considered
natural-born. He reiterated that natural-born Filipino citizens who had renounced their citizenship by pledging allegiance to
another sovereignty should not be allowed to revert back to their status of being natural-born citizens once they decide to regain
their Filipino citizenship. He underscored that this will in a way allow such Filipinos to enjoy dual citizenship.
On whether the Sponsors will agree to an amendment incorporating the position of Rep. Javier, Rep. Libanan stated that this will
defeat the purpose of the Bill.
Rep. Javier disagreed therewith, adding that natural-born Filipino citizens who acquired foreign citizenships and later decided to
regain their Filipino citizenship, will be considered as repatriated citizens.
Rep. Libanan cited the case of Bengzon vs. HRET wherein the Supreme Court had ruled that only naturalized Filipino citizens
are not considered as natural-born citizens.
In reaction, Rep. Javier clarified that only citizens by election or those whose mothers are Filipino citizens under the 1935
Constitution and who elected Filipino citizenship upon reaching the age of maturity, are not deemed as natural-born citizens.
In response, Rep. Libanan maintained that in the Bengzon case, repatriation results in the recovery of ones original nationality
and only naturalized citizens are not considered as natural-born citizens.
On whether the Sponsors would agree to not giving back the status of being natural-born citizens to natural-born Filipino citizens
who acquired foreign citizenship, Rep. Libanan remarked that the Body in plenary session will decide on the matter.
27

The petitioner obviously espouses an isolated reading of Representative Javiers statement; she conveniently disregards the
preceding and succeeding discussions in the records.
The above-quoted excerpts of the legislative record show that Representative Javiers statement ought to be understood within
the context of the issue then being discussed, that is whether former natural-born citizens who re-acquire their Filipino
citizenship under the proposed law will revert to their original status as natural-born citizens and thus be qualified to run for
government positions reserved only to natural-born Filipinos, i.e. President, Vice-President and Members of the Congress.
It was Representative Javiers position that they should be considered as repatriated Filipinos and not as natural-born citizens
since they will have to execute a personal and sworn renunciation of foreign citizenship. Natural-born citizens are those who
need not perform an act to perfect their citizenship. Representative Libanan, however, maintained that they will revert to their
original status as natural-born citizens. To reconcile the renunciation imposed by Section 5(2) with the principle that natural-born
citizens are those who need not perform any act to perfect their citizenship, Representative Javier suggested that the sworn
renunciation of foreign citizenship be considered as a mere pro forma requirement.
Petitioners argument, therefore, loses its point. The "sworn renunciation of foreign citizenship" must be deemed a formal
requirement only with respect to the re-acquisition of ones status as a natural-born Filipino so as to override the effect of the
principle that natural-born citizens need not perform any act to perfect their citizenship. Never was it mentioned or even alluded
to that, as the petitioner wants this Court to believe, those who re-acquire their Filipino citizenship and thereafter run for public
office has the option of executing an unsworn affidavit of renunciation.
It is also palpable in the above records that Section 5 was intended to complement Section 18, Article XI of the Constitution on
public officers primary accountability of allegiance and loyalty, which provides:
Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or
employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be
dealt with by law.
An oath is a solemn declaration, accompanied by a swearing to God or a revered person or thing, that ones statement is true or
that one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the
promise is broken. The legal effect of an oath is to subject the person to penalties for perjury if the testimony is false.
28

Indeed, the solemn promise, and the risk of punishment attached to an oath ensures truthfulness to the prospective public
officers abandonment of his adopted state and promise of absolute allegiance and loyalty to the Republic of the Philippines.
To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial purposes; it would also accommodate
a mere qualified or temporary allegiance from government officers when the Constitution and the legislature clearly demand
otherwise.
Petitioner contends that the Australian Citizenship Act of 1948, under which she is already deemed to have lost her citizenship, is
entitled to judicial notice. We disagree.
Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven.
29
To prove a foreign law,
the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court
which reads:
Sec. 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section 19, when admissible for
any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of
the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has
the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice- consul, or consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (Emphasis
ours)
Sec. 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of the
evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the
case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court.
The Court has admitted certain exceptions to the above rules and held that the existence of a foreign law may also be
established through: (1) a testimony under oath of an expert witness such as an attorney-at-law in the country where the foreign
law operates wherein he quotes verbatim a section of the law and states that the same was in force at the time material to the
facts at hand; and (2) likewise, in several naturalization cases, it was held by the Court that evidence of the law of a foreign
country on reciprocity regarding the acquisition of citizenship, although not meeting the prescribed rule of practice, may be
allowed and used as basis for favorable action, if, in the light of all the circumstances, the Court is "satisfied of the authenticity of
the written proof offered." Thus, in a number of decisions, mere authentication of the Chinese Naturalization Law by the Chinese
Consulate General of Manila was held to be a competent proof of that law.
30

The petitioner failed to prove the Australian Citizenship Act of 1948 through any of the above methods.1wphi 1 As uniformly observed
by the RTC and COMELEC, the petitioner failed to show proof of the existence of the law during trial. Also, the letter issued by
the Australian government showing that petitioner already renounced her Australian citizenship was unauthenticated hence, the
courts a quo acted judiciously in disregarding the same.
We are bound to arrive at a similar conclusion even if we were to admit as competent evidence the said letter in view of the
photocopy of a Certificate of Authentication issued by Consular Section of the Philippine Embassy in Canberra, Australia
attached to the petitioners motion for reconsideration.
We have stressed in Advocates and Adherents of Social Justice for School Teachers and Allied Workers (AASJS) Member v.
Datumanong
31
that the framers of R.A. No. 9225 did not intend the law to concern itself with the actual status of the other
citizenship.
This Court as the government branch tasked to apply the enactments of the legislature must do so conformably with the wisdom
of the latter sans the interference of any foreign law. If we were to read the Australian Citizen Act of 1948 into the application and
operation of R.A. No. 9225, we would be applying not what our legislative department has deemed wise to require. To do so
would be a brazen encroachment upon the sovereign will and power of the people of this Republic.
32

The petitioners act of running for public office does not suffice to serve as an effective renunciation of her Australian citizenship.
While this Court has previously declared that the filing by a person with dual citizenship of a certificate of candidacy is already
considered a renunciation of foreign citizenship,
33
such ruling was already adjudged superseded by the enactment of R.A. No.
9225 on August 29, 2003 which provides for the additional condition of a personal and sworn renunciation of foreign citizenship.
34

The fact that petitioner won the elections can not cure the defect of her candidacy. Garnering the most number of votes does not
validate the election of a disqualified candidate because the application of the constitutional and statutory provisions on
disqualification is not a matter of popularity.
35

In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their citizenship and seek elective office, to
execute a personal and sworn renunciation of any and all foreign citizenships before an authorized public officer prior to or
simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections.
36
The rule applies to all
those who have re-acquired their Filipino citizenship, like petitioner, without regard as to whether they are still dual citizens or not.
It is a pre-requisite imposed for the exercise of the right to run for public office.
Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-acquire their citizenship
under Section 3 of R.A. No. 9225. It is the operative act that restores their right to run for public office. The petitioner's failure to
comply therewith in accordance with the exact tenor of the law, rendered ineffectual the Declaration of Renunciation of Australian
Citizenship she executed on September 18, 2006. As such, she is yet to regain her political right to seek elective office. Unless
she executes a sworn renunciation of her Australian citizenship, she is ineligible to run for and hold any elective office in the
Philippines.
WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED. The Resolution dated September 6, 2011 of the
Commission on Elections en bane in EAC (AE) No. A-44-2010 is AFFIRMED in toto.
SO ORDERED.
BIENVENIDO L. REYES<br />Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Senior Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
ROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
JOSE CATRAL MENDOZA
Associate Justice
(On Official Leave)
MARIA LOURDES P.A. SERENO
*

Associate Justice
(On Official Leave)
ESTELA M. PERLAS-BERNABE
*

Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court.
ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

Footnotes
*
On Official Leave.
1
Rollo, pp. 3-54.
2
Id. at 59-72.
3
Id. at 74-75.
4
Under the sala of Judge Rose Mary R. Molina-Alim; id. at 76-86.
5
AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE FOREIGN CITIZENSHIP
PERMANENT. AMENDING FOR THE PURPOSE COMMONWEALTH ACT NO. 63, AS AMENDED AND FOR
OTHER PURPOSES. Enacted August 29, 2003.
6
Rollo, p. 79.
7
Docketed as SPL. CV. ACTION CASE No. 78-BG.
8
Docketed as SPL. CV. ACTION CASE No. 76-BG.
9
Rollo, p. 86.
10
Id. at 74-75.
11
Id. at 59-72.
12
Id. at 67-68.
13
(1) Photocopy of a Letter addressed to the COMELEC dated November 10, 2010 issued by the Department of
Immigration and Citizenship of Australia, containing an advise that as of September 27, 2006, the petitioner is no
longer an Australian citizen; and (2) photocopy of a Certificate of Authentication of the said letter dated November
23, 2010 issued by Grace Anne G. Bulos of the Consular Section of the Philippine Embassy in Canberra,
Australia. (Id. at 62.)
14
Rule 36, Sec. 15. Preferential Disposition of Quo Warranto Cases. The courts shall give preference to quo
warranto over all other cases, except those of habeas corpus.
15
"In the absence of any applicable provision in [said] Rules, the pertinent provisions of the Rules of Court in the
Philippines shall be applicable by analogy or in a suppletory character and effect."
16
468 Phil. 130 (2004).
17
Salcedo II v. COMELEC, 371 Phil. 377, 389 (1999).
18
1) natural-born citizens who have lost their Philippine citizenship by reason of their naturalization as citizens of
a foreign country; and 2) natural-born citizens of the Philippines who, after the effectivity of the law, become
citizens of a foreign country.
19
Abello v. Commissioner of Internal Revenue, 492 Phil. 303, 309-310 (2005).
20
Id. at 310.
21
G.R. No. 182701, July 23, 2008, 559 SCRA 696.
22
G.R. No. 179848, November 29, 2008, 572 SCRA 295.
23
Id. at 306-308.
24
G.R. No. 180048, June 19, 2009, 590 SCRA 149.
25
Lokin, Jr. v. COMELEC, G.R. Nos. 179431-32 and 180443, June 22, 2010, 621 SCRA 385, 406.
26
Id.
27
JOURNAL OF THE HOUSE OF REPRESENTATIVES, June 2 to 5, 2003; rollo, pp. 94-95.
28
Blacks Law Dictionary, Eighth Ed., p. 1101.
29
Manufacturers Hanover Trust Co. v. Guerrero, 445 Phil. 770, 777 (2003).
30
Asiavest Limited v. CA, 357 Phil 536, 551-552 (1998), citing Jovito Salonga, Private International Law, 101-102,
1995 ed..
31
G.R. No. 160869, May 11, 2007, 523 SCRA 108.
32
See Parado v. Republic of the Philippines, 86 Phil. 340, 344 (1950).
33
Valles v. COMELEC, 392 Phil. 327, 340 (2000); Mercado v. Manzano, 367 Phil. 132, 152-153 (1999).
34
Jacot v. Dal, supra note 22, at 308.
35
Lopez v. COMELEC, supra note 21, at 701.
36
Jacot v. Dal, supra note 22, at 306.

The Lawphil Project - Arellano Law Foundation




Republic of the Philippines
Supreme Court
Manila

EN BANC

EUSEBIO EUGENIO K. LOPEZ, G.R. No. 182701
Petitioner,
Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
- versus - CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

COMMISSION ON ELECTIONS Promulgated:
and TESSIE P. VILLANUEVA,
Respondents. July 23, 2008

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

R E S O L U T I O N


REYES, R.T., J .:


A Filipino-American or any dual citizen cannot run for any elective public
position in the Philippines unless he or she personally swears to a renunciation of
all foreign citizenship at the time of filing the certificate of candidacy.


This is a petition for certiorari under Rule 65, in relation to Rule 64 of the
Rules on Civil Procedure assailing the (1) Resolution
[1]
and (2) Omnibus Order
[2]
of
the Commission on Elections (COMELEC), Second Division, disqualifying petitioner
from running as Barangay Chairman.

Petitioner Eusebio Eugenio K. Lopez was a candidate for the position of
Chairman of Barangay Bagacay, San Dionisio, Iloilo City in the synchronized
Barangay and Sangguniang Kabataan Elections held on October 29, 2007.

On October 25, 2007, respondent Tessie P. Villanueva filed a
petition
[3]
before the Provincial Election Supervisor of the Province of Iloilo,
praying for the disqualification of petitioner on the ground that he is an American
citizen, hence, ineligible from running for any public office. In his
Answer,
[4]
petitioner argued that he is a dual citizen, a Filipino and at the same
time an American, by virtue of Republic Act (R.A.) No. 9225, otherwise known as
the Citizenship Retention and Re-acquisition Act of 2003.
[5]
He returned to
thePhilippines and resided in Barangay Bagacay. Thus, he said, he possessed all
the qualifications to run for Barangay Chairman.

After the votes for Barangay Chairman were canvassed, petitioner emerged
as the winner.
[6]


On February 6, 2008, COMELEC issued the assailed Resolution granting the
petition for disqualification, disposing as follows:



WHEREFORE, premises considered, the instant Petition for Disqualification is
GRANTED and respondent Eusebio Eugenio K. Lopez is DISQUALIFIED from running as
Barangay Chairman of Barangay Bagacay, San Dionisio, Iloilo.

SO ORDERED.
[7]


In ruling against petitioner, the COMELEC found that he was not able to
regain his Filipino citizenship in the manner provided by law. According to the
poll body, to be able to qualify as a candidate in the elections, petitioner should
have made a personal and sworn renunciation of any and all foreign
citizenship. This, petitioner failed to do.

His motion for reconsideration having been denied, petitioner resorted to
the present petition, imputing grave abuse of discretion on the part of the
COMELEC for disqualifying him from running and assuming the office of Barangay
Chairman.

We dismiss the petition.

Relying on Valles v. Commission on Elections,
[8]
petitioner argues that his
filing of a certificate of candidacy operated as an effective renunciation of foreign
citizenship.

We note, however, that the operative facts that led to this Courts ruling
in Valles are substantially different from the present case. In Valles, the
candidate, Rosalind Ybasco Lopez, was a dual citizen by accident of birth on
foreign soil.
[9]
Lopez was born of Filipino parents in Australia, a country which
follows the principle of jus soli. As a result, she acquired Australian citizenship by
operation of Australian law, but she was also considered a Filipino citizen under
Philippine law. She did not perform any act to swear allegiance to a country other
than the Philippines.

In contrast, petitioner was born a Filipino but he deliberately sought
American citizenship and renounced his Filipino citizenship. He later on became a
dual citizen by re-acquiring Filipino citizenship.

More importantly, the Courts 2000 ruling in Valles has been superseded by
the enactment of R.A. No. 9225
[10]
in 2003. R.A. No. 9225 expressly provides for
the conditions before those who re-acquired Filipino citizenship may run for a
public office in the Philippines. Section 5 of the said law states:

Section 5. Civil and Political Rights and Liabilities. Those who retain or re-
acquire Philippine citizenship under this Act shall enjoy full civil and political rights and
be subject to all attendant liabilities and responsibilities under existing laws of
the Philippines and the following conditions:

x x x x

(2) Those seeking elective public office in the Philippines shall meet the
qualification for holding such public office as required by the Constitution 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. (Emphasis added)

Petitioner re-acquired his Filipino citizenship under the cited law. This new
law explicitly provides that should one seek elective public office, he should first
make a personal and sworn renunciation of any and all foreign citizenship before
any public officer authorized to administer an oath.

Petitioner failed to comply with this requirement. We quote with approval
the COMELEC observation on this point:

While respondent was able to regain his Filipino Citizenship by virtue of the Dual
Citizenship Law when he took his oath of allegiance before the Vice Consul of the
Philippine Consulate Generals Office in Los Angeles, California, the same is not enough
to allow him to run for a public office. The above-quoted provision of law mandates
that a candidate with dual citizenship must make a personal and sworn renunciation of
any and all foreign citizenship before any public officer authorized to administer an
oath. There is no evidence presented that will show that respondent complied with
the provision of R.A. No. 9225. Absent such proof we cannot allow respondent to run
for Barangay Chairman of Barangay Bagacay.

For the renunciation to be valid, it must be contained in an affidavit duly executed
before an officer of law who is authorized to administer an oath. The affiant must state
in clear and unequivocal terms that he is renouncing all foreign citizenship for it to be
effective. In the instant case, respondent Lopezs failure to renounce his American
citizenship as proven by the absence of an affidavit that will prove the contrary leads
this Commission to believe that he failed to comply with the positive mandate of
law. For failure of respondent to prove that he abandoned his allegiance to the United
States, this Commission holds him disqualified from running for an elective position in
the Philippines.
[11]
(Emphasis added)

While it is true that petitioner won the elections, took his oath and began to
discharge the functions of Barangay Chairman, his victory can not cure the defect
of his candidacy. Garnering the most number of votes does not validate the
election of a disqualified candidate because the application of the constitutional
and statutory provisions on disqualification is not a matter of popularity.
[12]


In sum, the COMELEC committed no grave abuse of discretion in
disqualifying petitioner as candidate for Chairman in the Barangay elections of
2007.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.




RUBEN T. REYES
Associate Justice


WE CONCUR:




REYNATO S. PUNO
Chief Justice




LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO
Associate Justice Associate Justice




ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice




RENATO C. CORONA CONCHITA CARPIO MORALES
Associate Justice Associate Justice




ADOLFO S. AZCUNA DANTE O. TINGA
Associate Justice Associate Justice





MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice




ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO
Associate Justice Associate Justice




ARTURO D. BRION
Associate Justice




C E R T I F I C A T I O N


Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Resolution had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.




REYNATO S. PUNO
Chief Justice



[1]
SPA 07-198 (BGY), signed by Rene V. Sarmiento, as Presiding Commissioner, and Nicodemo T. Ferrer, as
Commissioner; rollo, pp. 16-20.
[2]
Signed by Jose A.R. Melo, as Chairman, and Romeo A. Brawner, Rene V. Sarmiento, and Nicodemo T. Ferrer,
as Commissioners.
[3]
Rollo, pp. 31-35.
[4]
Id. at 36-37.
[5]
Also known as the Dual Citizenship Law.
[6]
Rollo, pp. 6, 19.
[7]
Id. at 20.
[8]
G.R. No. 137000, August 9, 2000, 337 SCRA 543.
[9]
See Mercado v. Manzano, G.R. No. 135083, May 26, 1999, 307 SCRA 630.
[10]
See note 5.
[11]
Rollo, p. 19.
[12]
See Reyes v. Commission on Elections, G.R. No. 52699, May 15, 1980, 97 SCRA 500.

EN BANC

MOZART P. PANLAQUI,
Petitioner,






G.R. No. 188671

Present:

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
- versus -






COMMISSION ON ELECTIONS and
NARDO M. VELASCO,
Respondents.

VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

Promulgated:

February 24, 2010
x-----------------------------------------------------------------------------------------x


D E C I S I O N

CARPIO MORALES, J.:

The present petition is one for certiorari.

Petitioner Mozart Panlaqui (Panlaqui) assails the Commission on Elections
(Comelec) En Banc Resolution of June 17, 2009 denying his motion for
proclamation, which he filed after this Court affirmed in G.R. No. 180051
[1]
the
nullification of the proclamation of private respondent Nardo Velasco (Velasco) as
mayor of Sasmuan, Pampanga.

Velasco was born in Sasmuan on June 22, 1952 to Filipino parents. He
married Evelyn Castillo on June 29, 1975. In 1983, he moved to the United
States where he subsequently became a citizen.

Upon Velascos application for dual citizenship under Republic Act No.
9225
[2]
was approved on July 31, 2006, he took on even date his oath of allegiance
to the Republic of the Philippines and returned to the Philippines on September
14, 2006.

On October 13, 2006, Velasco applied for registration as a voter of Sasmuan,
which application was denied by the Election Registration Board (ERB). He thus
filed a petition for the inclusion of his name in the list of voters before the
Municipal Trial Court (MTC) of Sasmuan which, by Decision of February 9, 2007,
reversed the ERBs decision and ordered his inclusion in the list of voters of
Sasmuan.

On appeal, the Regional Trial Court (RTC) of Guagua, Pampanga, by Decision
of March 1, 2007, reversed
[3]
the MTC Decision, drawing Velasco to elevate the
matter via Rule 42 to the Court of Appeals which, by Amended
Decision
[4]
of August 19, 2008, dismissed the appeal for lack of jurisdiction.

In the meantime, Velasco filed on March 28, 2007 his Certificate of
Candidacy (COC) for mayor of Sasmuan, therein claiming his status as a registered
voter. Panlaqui, who vied for the same position, thereupon filed before the
Comelec a Petition to Deny Due Course To and/or To Cancel Velascos COC based
on gross material misrepresentation as to his residency and, consequently, his
qualification to vote.

In the electoral bout of May 2007, Velasco won over Panlaqui as mayor of
Sasmuan. As the Comelec failed to resolve Panlaquis petition prior to the
elections, Velasco took his oath of office and assumed the duties of the office.

Finding material misrepresentation on the part of Velasco, the Comelec
cancelled his COC and nullified his proclamation, by Resolutions of July 6,
2007 and October 15, 2007, which this Court affirmed in G.R. No. 180051.

Panlaqui thereafter filed a motion for proclamation which the Comelec
denied by the assailed Resolution, pointing out that the rule on succession does
not operate in favor of Panlaqui as the second placer because Velasco was not
disqualified by final judgment before election day.

Hence, the present petition which imputes grave abuse of discretion on the
part of the Comelec for not regarding the RTC March 1, 2007 Decision as the final
judgment of disqualification against Velasco prior to the elections, so as to fall
within the ambit of Cayat v. Commission on Elections
[5]
on the exception to the
doctrine on the rejection of the second placer.

Velasco filed his Comment of September 18, 2009 with motion to
consolidate the present case with G.R. No. 189336, his petition challenging the
Comelecs September 8, 2009 Order which directed him to vacate his mayoralty
post for the incumbent vice-mayor to assume office as mayor. A perusal of the
records of the petition shows, however, that it had already been dismissed by the
Court by Resolution of October 6, 2009.
[6]



In his present petition, Panlaqui implores this Court to apply in his favor the
case of Cayat where the Court affirmed, inter alia, the Comelec Order directing the
proclamation of the second placer as Mayor of Buguias, Benguet in this wise:


There is no doubt as to the propriety of Palilengs proclamation for two
basic reasons.

First, the COMELEC First Divisions Resolution of 12 April
2004 cancelling Cayats certificate of candidacy due to disqualification
became final and executory on 17 April 2004 when Cayat failed to pay the
prescribed filing fee. Thus, Palileng was the only candidate for Mayor of
Buguias, Benguet in the 10 May 2004 elections. Twentythree days before
election day, Cayat was alreadydisqualified by final judgment to run for Mayor
in the 10 May 2004 elections. As the only candidate, Palileng was not a second
placer. On the contrary, Palileng was the sole and only placer, second to
none. The doctrine on the rejection of the second placer, which triggers the rule
on succession, does not apply in the present case because Palileng is not a
second-placer but the only placer. Consequently, Palilengs proclamation as
Mayor of Buguias, Benguet is beyond question.

Second, there are specific requirements for the application of the doctrine
on the rejection of the second placer. The doctrine will apply in Bayacsans
favor, regardless of his intervention in the present case, if two conditions concur:
(1) the decision on Cayats disqualification remained pending on election
day, 10 May 2004, resulting in the presence of two mayoralty candidates for
Buguias, Benguet in the elections; and (2) the decision on Cayats
disqualification became final only after the elections.
[7]
(emphasis and italics in
the original; underscoring supplied)



Repackaging the present petition in Cayats fashion, Panlaqui asserts that the
RTC March 1, 2007 Decision in the voters inclusion proceedings must be
considered as the final judgment of disqualification against Velasco, which
decision was issued more than two months prior to the elections. Panlaqui posits
that when Velascos petition for inclusion was denied, he was also declared as
disqualified to run for public office.

Unwrapping the present petition, the Court finds that the true color of the
issue of distinction between a petition for inclusion of voters in the list and a
petition to deny due course to or cancel a certificate of candidacy has already been
defined in Velasco v. Commission on Elections
[8]
where the Court held that the two
proceedings may ultimately have common factual bases but they are poles apart in
terms of the issues, reliefs and remedies involved, thus:

In terms of purpose, voters inclusion/exclusion and COC denial/cancellation are
different proceedings; one refers to the application to be registered as a voter to be
eligible to vote, while the other refers to the application to be a
candidate. Because of their differing purposes, they also involve different issues
and entail different reliefs, although the facts on which they rest may have
commonalities where they may be said to converge or interface. x x
x
[9]
(underscoring supplied)


Voters inclusion/exclusion proceedings, on the one hand, essentially
involve the issue of whether a petitioner shall be included in or excluded from the
list of voters based on the qualifications required by law and the facts presented to
show possession of these qualifications.
[10]


On the other hand, COC denial/cancellation proceedings involve the issue of
whether there is a false representation of a material fact. The false representation
must necessarily pertain not to a mere innocuous mistake but to a material fact or
those that refer to a candidates qualifications for elective office. Apart from the
requirement of materiality, the false representation must consist of a deliberate
attempt to mislead, misinform, or hide a fact which would otherwise render a
candidate ineligible or, otherwise stated, with the intention to deceive the electorate
as to the would-be candidates qualifications for public office.
[11]


In Velasco, the Court rejected Velascos contention that the Comelec
improperly ruled on the right to vote when it cancelled his COC. The Court stated
that the Comelec merely relied on or recognized the RTCs final and executory
decision on the matter of the right to vote in the precinct within its territorial
jurisdiction.

In the present petition, it is Panlaquis turn to proffer the novel interpretation
that the RTC properly cancelled Velascos COC when it ruled on his right to
vote. The Court rejects the same.

It is not within the province of the RTC in a voters inclusion/exclusion
proceedings to take cognizance of and determine the presence of a false
representation of a material fact. It has no jurisdiction to try the issues of whether
the misrepresentation relates to material fact and whether there was an intention to
deceive the electorate in terms of ones qualifications for public office. The
finding that Velasco was not qualified to vote due to lack of residency requirement
does not translate into a finding of a deliberate attempt to mislead, misinform, or
hide a fact which would otherwise render him ineligible.

Assuming arguendo the plausibility of Panlaquis theory, the Comelec
correctly observed that when the RTC issued its March 1, 2007 Decision, there was
yet no COC to cancel because Velascos COC was filed only on March 28,
2007. Indeed, not only would it be in excess of jurisdiction but also beyond the
realm of possibility for the RTC to rule that there was deliberate concealment on
the part of Velasco when he stated under oath in his COC that he is a registered
voter of Sasmuan despite his knowledge of the RTC decision which was yet
forthcoming.

IN FINE, the Comelec did not gravely abuse its discretion when it denied
Panlaquis motion for proclamation. Since Velascos disqualification
as a candidate had not become final before the elections, the Comelec properly
applied the rule on succession.

x x x To simplistically assume that the second placer would have
received the other votes would be to substitute our judgment for the
mind of the voter. The second placer is just that, a second placer. He
lost the elections. He was repudiated by either a majority or plurality
of voters. He could not be considered the first among qualified
candidates because in a field which excludes the disqualified
candidate, the conditions would have substantially changed. We are
not prepared to extrapolate the results under such circumstances.

To allow the defeated and repudiated candidate to take over the
mayoralty despite his rejection by the electorate is to disenfranchise them
through no fault on their part, and to undermine the importance and the meaning
of democracy and the right of the people to elect officials of their choice.

Theoretically, the second placer could receive just one vote. In such a
case, it would be absurd to proclaim the totally repudiated candidate as the
voters choice. x x x
[12]



WHEREFORE, the petition is DISMISSED. The assailed June 17,
2009 Resolution of the Commission on Elections is AFFIRMED.

SO ORDERED.


CONCHITA CARPIO MORALES
Associate Justice



WE CONCUR:




REYNATO S. PUNO
Chief Justice








ANTONIO T. CARPIO
Associate Justice





PRESBITERO J. VELASCO, JR.
Associate Justice

RENATO C. CORONA
Associate Justice





ANTONIO EDUARDO B. NACHURA
Associate Justice







TERESITA J. LEONARDO-DE CASTRO
Associate Justice




DIOSDADO M. PERALTA
Associate Justice




ARTURO D. BRION
Associate Justice




LUCAS P. BERSAMIN
Associate Justice



MARIANO C. DEL CASTILLO
Associate Justice




ROBERTO A. ABAD
Associate Justice




MARTIN S. VILLARAMA, JR.
Associate Justice



JOSE PORTUGAL PEREZ
Associate Justice


JOSE C. MENDOZA
Associate Justice







CERTIFICATION


Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Court.


REYNATO S. PUNO
Chief Justice




[1]
Velasco v. Commission on Elections, G.R. No. 180051, December 24, 2008, 575 SCRA 590.
[2]
Citizenship Retention and Re-Acquisition Act of 2003 (August 29, 2003).
[3]
The RTC found that Velasco was ineligible to vote since he failed to comply with the residency
requirement, citing the rule that naturalization in a foreign country results in the abandonment of the
domicile in the Philippines.
[4]
The appellate court reversed its March 13, 2008 Decision granting Velascos appeal.
[5]
G.R. No. 163776, April 24, 2007, 522 SCRA 23, where the doctrine on the rejection of the second placer
found no application.
[6]
The Court likewise denied the motion for reconsideration, by Resolution of December 15, 2009.
[7]
Cayat v. Commission on Elections, supra note 5 at 43.
[8]
Supra note 1.
[9]
Id. at 606
[10]
Ibid.
[11]
Id. at 602-604.
[12]
Kare v. Commission on Elections, G.R. No. 157526, April 28, 2004, 428 SCRA 264, 274.

EN BANC

NARDO M. VELASCO,
Petitioner,




- versus -




COMMISSION ON ELECTIONS
and MOZART P. PANLAQUI,
Respondents.
G.R. No. 180051

Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
*

CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

Promulgated:


December 24, 2008

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

D E C I S I O N

BRION, J .:

This petition for certiorari filed by Nardo M. Velasco (Velasco) under Rule
64, in relation with Rule 65, of the Revised Rules of Court seeks to set aside and
annul [1] the Resolution dated July 6, 2007 of the Second Division of the
Commission on Elections (COMELEC) and [2] the Resolution dated October 15,
2007 of the COMELEC en banc, in SPA Case No. 07-148 entitled Mozart P.
Panlaqui v. Nardo M. Velasco. The assailed resolutions denied due course to the
Certificate of Candidacy (COC) Velasco had filed for the position of Mayor of
the Municipality of Sasmuan, Pampanga.

THE ANTECEDENTS

Velasco was born in San Antonio, Sasmuan, Pampanga on June 22, 1952 to
Arsenio Velasco and Lucia Mangalindan. He married Evelyn D. Castillo on June 29,
1975 at the Roman Catholic Church of Sasmuan. In 1983, he moved to and
worked in the United States of America where he subsequently became a citizen.

Sometime in 2006, Velasco applied for dual citizenship under Republic Act
No. 9225, otherwise known as the Citizenship Retention and Re-Acquisition Act of
2003. His application was approved on July 31, 2006. On the same day, he took
his oath of allegiance to the Republic of the Philippines before the Philippine
Consulate General in San Francisco. He returned to the Philippines on September
14, 2006 and has not left since, except for a 3-day Hongkong trip from September
26, 2006 to September 29, 2009.

Soon thereafter or on October 13, 2006, Velasco applied for registration as
a voter of Sasmuan, Pampanga. The Election Registration Board (ERB) denied his
application. Thereupon, Velasco filed a petition for the inclusion of his name in
the list of voters with the Municipal Trial Court of Sasmuan (MTC). The
MTC, finding no evidence of Velascos change of domicile, granted Velascos
petition on February 9, 2007; it reversed the ERBs decision and ordered Velascos
inclusion in the List of Voters of Sasmuan.

On March 1, 2007, Branch 52 of the Regional Trial Court of Guagua,
Pampanga (RTC) reversed and set aside, on appeal, the MTC decision. The RTC
reasoned out that Velasco lost his domicile of origin [Sasmuan, Pampanga] when
he became a US citizen; under Philippine immigration laws, he could only stay in
the Philippines as a visitor or as a resident alien. Velasco, according to the RTC,
only regained or reacquired his Philippine residency on July 31, 2006 when he
reacquired his Filipino citizenship. The RTC based this conclusion on our ruling
in Caasi v. Court of Appeals
[1]
that naturalization in a foreign country results in the
abandonment of domicile in the Philippines. Thus, the RTC found that Velasco
failed to comply with the residency requirement under the Constitution, making
him ineligible to vote in the May 14, 2007 elections.

Velasco appealed the RTC decision to the Court of Appeals (CA) via a
petition for review under Rule 42 of the Rules of Court; the appeal was docketed
as CA-G.R. SP No. 98259.

It was against this factual backdrop that Velasco filed on March 28,
2007 his COC for the position of Mayor of Sasmuan. Velascos COC contains,
among others, the required information that he is a registered voter of Precinct
No. 103-A of Sasmuan, Pampanga. He executed on even date an Affidavit
renouncing, abandoning, and relinquishing his American citizenship.

The next day, private respondent Mozart Panlaqui (Panlaqui), who also filed
his COC for the position of Mayor of Sasmuan, filed a Petition to Deny Due Course
To and/or To Cancel Velascos COC, claiming that: (1) contrary to Velascos
claim, he is not a registered voter of Precinct No. 103-A, as his name is not
included in the list of voters; (2) the RTC has rendered a decision denying
Velascos petition for inclusion as voter; (3) Velasco does not possess the
constitutional requirement of legal residency (i.e., one year residency in the
Philippines immediately preceding the election as provided under Section 1,
Article V of the Constitution) to register as voter; he arrived in the Philippines
only last September 14, 2006; and (4) Velasco is not eligible to run for office since
he is not a qualified voter. Panlaqui asked for the annulment, revocation and
cancellation of, or denial of due course to, Velascos COC that allegedly contained
obvious and gross material misrepresentation. The case was docketed as SPA
Case No. 07-148.

In his Answer, Velasco denied the allegations of Panlaquis petition and
claimed in defense that: (1) he possesses all the qualifications of a voter of
Sasmuan, as he is a domiciliary and permanent resident of the Philippines and
Sasmuan since birth; that, when he took his oath of allegiance on July 31, 2006,
he is considered not to have lost his Philippine citizenship and therefore continues
to enjoy full civic and political rights under the Constitution and the statutes; (2)
the appeal or review of the RTC decision is pending resolution with the Court of
Appeals; (3) he did not act with malice, bad faith and gross misrepresentation
when he stated that he is a registered voter of Precinct No. 103-A of Sasmuan in
his COC, as the MTC decision has not been reversed with finality; (4) he has
renounced his American citizenship on March 29, 2007 or prior to the filing of his
COC, making him eligible to seek elective public office pursuant to Republic Act
No. 9255; and (5) he possesses all the qualifications of a voter of Sasmuan and of
a candidate for Municipal Mayor, Sasmuan being his domicile of origin and
permanent residence. He claimed that he is qualified to vote and seek public
office until a final judgment is rendered saying otherwise; hence, he did not
commit any misrepresentation and Panlaquis petition should be dismissed.

Velasco garnered 7,822 votes [the most number] for the position of Mayor
of Sasmuan in the May 14, 2007 election. As the COMELEC failed to resolve
Panlaquis petition prior to the election, Velasco was proclaimed Mayor of
Sasmuan on May 16, 2007. He took his oath of office and assumed the powers
and functions of the office onJune 30, 2007.

On July 6, 2007, the Second Division of the COMELEC issued a Resolution
the first of the interrelated resolutions assailed in the present petition canceling
Velascos COC and declaring his proclamation as Mayor of Sasmuan null and
void. Citing Section 138 of the Omnibus Election Code (OEC)
[2]
which declared the
decision of the RTC in the voters inclusion/exclusion proceedings final and
executory, the Second Division of the COMELEC found Velasco guilty of material
misrepresentation when he claimed in his COC filed on March 28, 2007 that he is
a registered voter of Sasmuan, Pampanga. This defect, according to the Second
Division, effectively voided Velascos COC.

Velasco moved to reconsider the Second Divisions Resolution, but the
COMELEC en banc in a Resolution dated October 15, 2007 (also assailed in this
petition) denied the motion. The COMELEC en banc essentially affirmed the
Second Divisions ruling. Additionally, the COMELEC pointed out that in the
absence of a writ or order issued by the CA (where the appeal from the RTC
decision in the inclusion/exclusion case was then pending) enjoining the
enforcement of the RTC decision, it had to apply Section 138 of the OEC. Velasco
responded to this development by filing the present petition with this Court.

THE PETITION, COMMENTS AND RELATED DEVELOPMENTS

The petition is based on the following grounds/arguments:
1. Respondent Comelec committed grave abuse of discretion when it decided the
issue on petitioners right to vote despite its apparent lack of jurisdiction on this
issue and the pendency of such prejudicial issue before the CA.

2. Respondent Comelec committed grave abuse of discretion when it ruled that
the March 1, 2008 decision of the RTC of Guagua, Pampanga reversing the earlier
decision of the MTC of Sasmuan, Pampanga is already final and executory.

3. Respondent COMELEC committed grave abuse of discretion when it annulled the
proclamation of the petitioner without notice and hearing.

4. Respondent Comelec committed grave abuse of discretion when it ruled that
petitioner committed material misrepresentation in his COC by merely relying on
private respondents baseless allegations in the petition to deny due course to
petitioners COC without taking into consideration that petitioner possesses all
the qualifications and none of the disqualification of a voter.


In his comment, Panlaqui asserts that: (1) Velasco committed forum
shopping, as another case involving the same issues is on appeal and pending
resolution with the CA; and (2) in light of this appeal, not all the requisites for a
petition for certiorari are present; in the alternative and assuming certiorari to be
proper, the COMELEC did not commit grave abuse of discretion, as the RTC
decision is final, executory, and non-appealable.

The Office of the Solicitor General (OSG) filed a Comment in behalf of the
COMELEC. The OSG argues that the COMELEC did not commit grave abuse of
discretion. The COMELEC has jurisdiction under Section 78 of Batas Pambansa
Blg. 881, as amended, or the OEC over petitions to deny due course and/or
cancel a COC (COC-denial/cancellation). There was likewise no denial of due
process; Velasco filed an Answer to Panlaquis petition and was fully heard before
the COMELEC denied due course to his COC. The OSG also argues that Velascos
immigration to the United States and subsequent acquisition of US citizenship
constituted an abandonment of his Philippine domicile and residence. Finally, the
OSG claims that Velasco committed misrepresentation in declaring his residence
at Sasmuan in his COC a ground for the cancellation of COC under Section 78 of
the OEC. The real issue, according to the OSG, is not Velascos right to vote, but
the misrepresentation he committed when he filed his COC.

On March 5, 2008, the COMELEC issued a writ of execution to implement
the assailed resolutions. The CA, on the other hand, rendered on March 13,
2008 its decision in CA-GR SP No. 98259 granting Velascos appeal, thereby
reversing and setting aside the RTC decision. The appellate court ruled that,
contrary to the RTCs finding, Velasco effectively reacquired his residence when
he decided to relocate in the Philippines for good in 2003; from 2003-2006,
Velasco stayed in the Philippines for a total of almost two (2) years for the last
three (3) years immediately preceding the May 14, 2007 election; from the
totality of these acts, Velasco revealed his intention to reacquire his rights as a
Filipino citizen. Citing Macalintal v. Commission on Elections,
[3]
the CA considered
Velasco a qualified voter.

On Velascos motion, we issued a status quo ante order enjoining the
COMELEC from implementing the assailed resolutions.

In an interesting twist, the CA issued on August 19, 2008 an Amended
Decision in response to a motion for reconsideration of its earlier decision
dismissing Velascos Rule 42 petition for lack of jurisdiction. It reversed its earlier
ruling that it has jurisdiction to entertain the appeal, explicitly stating that the
jurisprudence it cited to support its appellate jurisdiction in voters
inclusion/exclusion proceeding is no longer good law because of the amendments
to the election law on which its cited jurisprudence was based. It declared that
Section 138 of the OEC being explicit that the decision on appeal by the RTC in
inclusion and exclusion cases is immediately final and executory appears to be a
clear mandate for this Court (the CA) not to entertain instant petition for lack of
jurisdiction.

Based on these submissions, we are called upon to resolve the following
issues: (1) whether Velasco forum-shopped; and (2) whether the COMELEC
gravely abused its discretion in canceling Velascos COC.


THE COURTS RULING

We find the petition devoid of merit.


Grave Abuse of Discretion.

The well-settled rule is that this Court will not interfere with a COMELEC
decision unless the COMELEC is shown to have committed grave abuse of
discretion.
[4]
Correctly understood, grave abuse of discretion is such capricious
and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or [an]
exercise of power in an arbitrary and despotic manner by reason of passion or
personal hostility, or an exercise of judgment so patent and gross as to amount to
an evasion of a positive duty or to a virtual refusal to perform the duty enjoined,
or to act in a manner not at all in contemplation of law.
[5]


Velasco imputes grave abuse of discretion on the COMELEC for canceling his
COC on the sole ground that he committed false representation when he claimed
that he is a registered voter of Precinct No. 103-A. This imputation directly poses
to us the question: was the COMELEC ruling capriciously, whimsically, and
arbitrarily made?

In answering this question, we recognize at the outset that together with
the cancellation of the COC that is directly before us, we have to consider the
effect and impact of the inclusion/exclusion proceedings that Velasco brought
before the MTC which, on appeal to the RTC, ultimately led to the denial of his
listing as a voter in Sasmuan. While this inclusion/exclusion case is not before us,
it was the ruling in this proceeding that the COMELEC cited as ground for the
cancellation of Velascos COC after Velasco claimed that he is a registered voter of
Precinct No. 103-A of Sasmuan, Pampanga.



The COC Denial/Cancellation Proceedings.

Section 74, in relation with Section 78 of the OEC governs the cancellation
of, and grant or denial of due course to, COCs. The combined application of these
sections requires that the facts stated in the COC by the would-be candidate be
true, as any false representation of a material fact is a ground for the COCs
cancellation or the withholding of due course. To quote these provisions:

SEC. 74. Contents of certificate of candidacy. The certificate of candidacy
shall state that the person filing it is announcing his candidacy for the office stated
therein and that he is eligible for said office; if for Member of the Batasang Pambansa,
the province, including its component cities, highly urbanized city or district or sector
which he seeks to represent; the political party to which he belongs; civil status; his date
of birth; residence; his post office address for all election purposes; his profession or
occupation; that he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and
decrees promulgated by the duly constituted authorities; that he is not a permanent
resident or immigrant to a foreign country; that the obligation assumed by his oath is
assumed voluntarily, without mental reservation or purpose of evasion; and that the
facts stated in the certificate of candidacy are true to the best of his knowledge.

x x x x

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.


The false representation that these provisions mention must necessarily pertain
to a material fact, not to a mere innocuous mistake. This is emphasized by the
consequences of any material falsity: a candidate who falsifies a material fact
cannot run; if he runs and is elected, cannot serve; in both cases, he or she can be
prosecuted for violation of the election laws. Obviously, these facts are those
that refer to a candidates qualification for
elective office, such as his or her citizenship and residence.
[6]
The candidates
status as a registered voter similarly falls under this classification as it is a
requirement that, by law (the Local Government Code), must be reflected in the
COC. The reason for this is obvious: the candidate, if he or she wins, will work for
and represent the local government under which he is running.

Separately from the requirement of materiality, a false representation under
Section 78 must consist of a deliberate attempt to mislead, misinform, or hide a
fact which would otherwise render a candidate ineligible. In other words, it
must be made with the intention to deceive the electorate as to the would-be
candidates qualifications for public office.
[7]


The Voters Inclusion/Exclusion Proceedings.

The process of voters inclusion/exclusion, as part of the voters registration
process, is provided and defined under Sections 138, 139 and 143 of the
OEC. These sections provide:

Sec. 138. Jurisdiction in inclusion and exclusion cases. The Municipal and
Metropolitan Trial Courts shall have original and exclusive jurisdiction over all cases of
inclusion and exclusion of voters from the list in their respective cities or
municipalities. Decisions of the Municipal or Metropolitan Trial Courts may be appealed
by the aggrieved party to the Regional Trial Courts within five (5) days from receipt of
notice thereof. Otherwise, said decision shall become final and executory. The regional
trial court shall decide the appeal within ten (10) days from the time it is received and
the decision shall become final and executory. No motion for reconsideration shall be
entertained [As amended by Section 33 of Republic Act No. 8189 (RA 8189)].

Sec. 139. Petition for inclusion of voters in the list. Any person whose
application for registration has been disapproved by the Board or whose name has been
stricken out from the list may file with the court a petition to include his name in the
permanent list of voters in his precinct at any time except one hundred five (105) days
prior to a regular election or seventy-five (75) days prior to a special election. It shall be
supported by a certificate of disapproval of his application and proof of service of notice
of his petition upon the Board. The petition shall be decided within fifteen (15) days
after its filing.

If the decision is for the inclusion of voters in the permanent list of voters, the
Board shall place the application for registration previously disapproved in the
corresponding book of voters and indicate in the application for registration the date of
the order of inclusion and the court which issued the same [As amended by Section 34
of RA 8189].

Section 143. Common rules governing judicial proceedings in the matter of
inclusion, exclusion and correction of names of voters.

(a) Petition for inclusion, exclusion, or correction of names of voters shall be
filed during office hours;

(b) Notice of the place, date and time of the hearing of the petition shall be
served upon the members of the Board and the challenged voter upon the filing of the
petition. Service of such notice may be made by sending a copy thereof by personal
delivery or by leaving it in the possession of a person of sufficient discretion in the
residence of the challenged voter, or by registered mail. Should the foregoing
procedures be not practicable, the notice shall be posted in the bulletin board of the city
or municipal hall and in two (2) other conspicuous places within the city or municipality;

x x x

(c) A petition shall refer only one to one (1) precinct and implead the Board as
respondents;.

(d) No costs shall be assessed against any party in these proceedings. However,
if the court should find that the application has been filed solely to harass the adverse
party and cause him to incur expenses, it shall order the culpable party to pay the costs
and incidental expenses.

(e) Any voter, candidate or political party who may be affected by the
proceedings may intervene and present his evidence.

(f) The decision shall be based on the evidence presented and in no case
rendered upon a stipulation of facts. x x x

(g) The petition shall be heard and decided within ten (10) days from the date of
its filing. Cases appealed to the Regional Trial Court shall be decided within ten (10) days
from receipt of the appeal. In all, cases, the court shall decide these petitions not later
than fifteen (15) days before the election and the decision shall be immediately final
and executory. [As amended by Section 32 of RA 8189]

Inclusion/exclusion proceedings essentially involve the simple issue of whether a
petitioner shall be included in or excluded from the list of voters based on the
qualifications required by law and the facts presented to show possession of
these qualifications.


The Proceedings Compared.

In terms of purpose, voters inclusion/exclusion and COC
denial/cancellation are different proceedings; one refers to the application to be
registered as a voter to be eligible to vote, while the other refers to the
application to be a candidate. Because of their differing purposes, they also
involve different issues and entail different reliefs although the facts on which
they rest may have commonalities where they may be said to converge or
interface. One such commonality is on the matter of residence. Section 9 of
Republic Act 8189, otherwise known as the Voters Registration Act (VRA),
requires that voters shall have resided in the Philippines for at least one (1) year,
and in the place wherein they propose to vote, at least six (6) months
immediately preceding the election. The OEC, on the other hand, requires under
its Section 74 that the would-be candidate state material facts such as, among
others, his residence. Under the combined application of Section 65 of the OEC
and Section 39 of the Local Government Code (LGC), a local official must among
others have the same residency requirement as required under the
VRA. Another point of convergence is on the candidates status as a registered
voter; a candidate for a local government position must be a registered voter in
the barangay, municipality, province, or city where he or she intends to run for
office.

The remedies available in the two proceedings likewise differ. Velascos
remedy from the adverse decision in his petition for inclusion as voter is as
provided under Section 138 of the OEC quoted above. From the MTC, the
recourse is to the RTC whose decision is final and executory, correctible by the
Court of Appeals only by a writ of certioraribased on grave abuse of discretion
amounting to lack of jurisdiction. On the other hand, the approval of a certificate
of candidacy or its denial is a matter directly cognizable by the COMELEC, with the
decision of its Division reviewable by the COMELEC en banc whose decision is in
turn reviewable by this Court under Rule 64 of the Rules of Court and Section 7, of
Article IX-A of the 1987 Constitution.

No Grave Abuse of Discretion.

In the present case, the ERB denied Velascos registration as a voter, which
denial the RTC subsequently supported. As already mentioned, this denial by the
RTC is, by law, final and executory. Since Velascos knowledge of the RTC decision
at the time he filed his COC is not disputed, the COMELEC concluded that he
committed a material misrepresentation when he stated under oath in his COC
that he is a registered voter of Sasmuan.

Under these facts and legal situation, we cannot hold that the COMELECs
conclusion is legally erroneous, much less that it is tainted by grave abuse of
discretion. It is a matter of record, appearing in a final RTC judgment no less, that
Velasco was not a registered voter of Sasmuan at the time he filed his COC. His
claim in this regard was therefore false and was a material
misrepresentation. Other than his active misrepresentation, Velasco likewise was
inexplicably silent about, and thus knowingly omitted any mention of, the denial
of his registration. As the COMELEC did, we can only conclude that he
deliberately concealed the existence of the final and executory RTC ruling when
he filed his COC. He could not disclose this fact as the unavoidable consequence
of disclosure was to render him unqualified to be a candidate.
[8]


That the COMELEC relied on the RTC ruling in canceling the COC of Velasco
cannot likewise be a legal error as Section 138 of the OEC is clear and categorical
in its terms: Decisions of the Municipal or Metropolitan Trial Courts may be
appealed by the aggrieved party to the Regional Trial Courts within five (5) days
from receipt of notice thereof. Otherwise, said decision shall become final and
executory. The regional trial court shall decide the appeal within ten days from the
time the appeal was received and its decision shall be final and executory. We
note that when Velasco sought recourse with the Court of Appeals, he did so by
way of appeal under Rule 42 of the Rules of Court a recourse that was not
available to him because an RTC ruling in an inclusion/exclusion is final and
executory. This led the appellate court to recognize in its Amended Decision
of August 19, 2008, albeit on motion for reconsideration, that it had no
jurisdiction to entertain Velascos appeal.

The Right to Vote

The above discussions, particularly on the distinctions between
inclusion/exclusion proceedings and COC denial/cancellation proceedings, refute
and belie Velascos position that the COMELEC improperly ruled on his right to
vote when it cancelled his COC. The tribunals given authority by law and who
actually ruled on whether Velasco should have the right to vote in Sasmuan,
Pampanga were the ERB, the MTC, and subsequently, the RTC. The COMELEC did
not so rule; it merely recognized the RTCs final and executory ruling on the
matter.

This conclusion is not a hairsplitting sophistry, but one based on clear
distinctions drawn by the law. As above pointed out, inclusion/exclusion and COC
denial/cancellation proceedings, while they may ultimately have common factual
bases, are still proceedings poles apart in terms of the issues, reliefs, and
remedies involved. That at some point they may converge (as in this case, where
the COC denial/cancellation proceeding relied on and used the results of the
voters inclusion/exclusion proceeding) does not erase the distinctions between
them. In the context of this case, it does not mean that the COMELEC
commonly with the ERB, the MTC and the RTC ruled on Velascos right to vote
because the COMELEC relied on the latters ruling.

In Domino v. COMELEC
[9]
where this Court faced the contention that the
decision of the first level court in an exclusion proceeding on the issue of
residence is final and conclusive on the COMELEC hearing a COC
denial/cancellation proceeding under Section 78 of the OED we ruled that the
factual findings of the trial court and its resultant conclusions in the
inclusion/exclusion proceedings on matters other than the right to vote in the
precinct within its territorial jurisdiction are not conclusive on and do not rise to
the level of a res judicata ruling with respect to the COMELEC.
[10]
The reason is
that inclusion/exclusion proceedings, while judicial in character, are summary
proceedings.
[11]
We further added that a decision in an inclusion/exclusion
proceeding does not operate as a bar to any future action in any other election
that a party may take concerning his right to be registered as a
voter.
[12]
Otherwise stated, a ruling on the right to vote by the trial court for a
specific election is binding on the COMELEC. By clear implication, the COMELEC
itself does not rule on the right to vote by recognizing in a Sec. 78 COC
denial/cancellation proceeding the final and executory ruling by a court, as
mandated by law, in an inclusion/exclusion proceeding.

Velascos Qualifications/Disqualifications as a Voter

Whether Velasco possesses all the qualifications and none of the
disqualifications to register as a voter of Sasmuan, Pampanga is a matter that is
not directly before us as his inclusion as a Sasmuan voter is not before us. As the
COMELEC did, we rely on the final and executory RTC ruling excluding Velasco
from the Sasmuan voters list. We observe, however, that at the time he filed his
application for registration with the COMELEC local office on October 13, 2006,
Velasco was a dual citizen. The records show that Velasco renounced his
American citizenship only on March 28, 2007,
[13]
although he secured his dual
citizenship status as early as July 31, 2006 at the Philippine Consulate in San
Francisco, California.
[14]
Under his dual citizenship status, he possessed the right
to vote in Philippine elections through the absentee voting scheme under
Republic Act No. 9189 (the Oversees Absentee Voting Law or the OAVL)
[15]
as we
ruled in Nicolas-Lewis v. COMELEC.
[16]
In Macalintal v. COMELEC,
[17]
we
significantly said that absentee voters are exempted from the constitutional
residency requirement for regular Philippine voters. Thus, the residency
requirements we cited above under the VRA and the LGC do not apply to
Velasco, assuming he registered as a dual citizen/absentee voter.

By law, however, the right of dual citizens who vote as absentee
voters pertains only to the election of national officials, specifically: the president,
the vice-president, the senators, and party-list representatives.
[18]
Thus, Velasco
was not eligible to vote as an absentee voter in the local election of 2007. In fact,
the records do not show that Velasco ever registered as an absentee voter for the
2007 election.
[19]


On the other hand, Velasco could not have registered as a regular voter
because he did not possess the residency requirement of one-year stay in
the Philippines and six-months stay in the municipality where he proposed to vote
at the time of the election. The records show that he arrived in
the Philippines only on September 14, 2006 and applied for registration on
October 13 of that year
[20]
for the election to be held in May of the following year
(2007). To hark back and compare his case to a similar case, Coquilla v.
COMELEC,
[21]
Velasco, before acquiring his dual citizenship status, was an
American citizen who had lost his residency and domiciliary status in
the Philippines; whose sojourn in the Philippines was via a visitors visa; and who
never established permanent residence in the Philippines. Like Coquilla before
him, Velasco could not have therefore validly registered as a regular voter eight
months before the May 2007 local elections.

The Due Process Issue.

Finally, we see no merit in Velascos argument that the COMELEC annulled
his proclamation as Mayor without due process. The nullification of his
proclamation as a winning candidate was an outcome - a necessary legal
consequence of the cancellation of his COC pursuant to Section 78 of the OEC. A
COC cancellation proceeding essentially partakes of the nature of a
disqualification case.
[22]
In the present case, Velasco filed an Answer to Panlaquis
petition to cancel or deny due course to his (Velascos) COC; hence, he was
afforded the opportunity to be heard in the cancellation of his COC.

Under the combined application of Sections 6
[23]
and 7
[24]
of Republic Act
No. 6646,
[25]
candidates who are disqualified by final judgment before the election
shall not be voted for and the votes cast for them shall not be counted. If the
disqualification or COC cancellation/denial case is not resolved before election
day, the proceedings shall continue even after the election and the proclamation
of the winner.
[26]
In the meanwhile, the candidate may be voted for and be
proclaimed if he or she wins, but the COMELECs jurisdiction to deny due course
and cancel his or her COC continues. This rule applies even if the candidate facing
disqualification is voted for and receives the highest number of votes,
[27]
and even
if the candidate is proclaimed and has taken his oath of office.
[28]
The only
exception to this rule is in the case of congressional or senatorial candidates with
unresolved disqualification or COC denial/cancellation cases after the
elections. Pursuant to Section 17 of Article VI of the Constitution, the
COMELECipso jure loses jurisdiction over these unfinished cases in favor of the
respective Senate or the House of Representatives electoral tribunals after the
candidates take their oath of office.
[29]


Under these circumstances, Velascos claim of denial of due process is
misplaced since he was given the opportunity to be heard in a proceeding that
would result in the annulment of his proclamation; due process was duly served
because its essence is the opportunity to be heard and this was fully given to
Velasco.
[30]


In sum, the COMELEC resolutions canceling Velascos COC are procedurally
and substantively correct, thus negating the grave abuse of discretion that Velasco
alleges.

As our final point, we are aware that Velasco won the May 14,
2007 mayoralty election in Sasmuan. We recognize, too, that we have ruled in
the past that a candidates victory in the election may be considered a sufficient
basis to rule in favor of the candidate sought to be disqualified if the main issue
involves defects in the candidates certificate of candidacy. We said that while
provisions relating to certificates of candidacy are mandatory in terms, it is an
established rule of interpretation as regards election laws, that mandatory
provisions requiring certain steps before elections will be construed as directory
after the elections, to give effect to the will of the people. We so ruled in Quizon v.
COMELEC and Saya-ang v. COMELEC.
[31]


The present case perhaps presents the proper time and opportunity to fine-
tune our above ruling. We say this with the realization that a blanket and
unqualified reading and application of this ruling can be fraught with dangerous
significance for the rule of law and the integrity of our elections. For one, such
blanket/unqualified reading may provide a way around the law that effectively
negates election requirements aimed at providing the electorate with the basic
information to make an informed choice about a candidates eligibility and fitness
for office.

The first requirement that may fall when an unqualified reading is made is
Section 39 of the LGC which specifies the basic qualifications of local government
officials. Equally susceptive of being rendered toothless is Section 74 of the OEC
that sets out what should be stated in a COC. Section 78 may likewise be
emasculated as mere delay in the resolution of the petition to cancel or deny due
course to a COC can render a Section 78 petition useless if a candidate with false
COC data wins. To state the obvious, candidates may risk falsifying their COC
qualifications if they know that an election victory will cure any defect that their
COCs may have. Election victory then becomes a magic formula to bypass
election eligibility requirements.

In the process, the rule of law suffers; the clear and unequivocal legal
command, framed by a Congress representing the national will, is rendered inutile
because the people of a given locality has decided to vote a candidate into office
despite his or her lack of the qualifications Congress has determined to be
necessary.

In the present case, Velasco is not only going around the law by his claim
that he is registered voter when he is not, as has been determined by a court in a
final judgment. Equally important is that he has made a material
misrepresentation under oath in his COC regarding his qualification. For these
violations, he must pay the ultimate price the nullification of his election
victory. He may also have to account in a criminal court for making a false
statement under oath, but this is a matter for the proper authorities to decide
upon.

We distinguish our ruling in this case from others that we have made in the
past by the clarification that COC defects beyond matters of form and that
involve material misrepresentations cannot avail of the benefit of our ruling that
COC mandatory requirements before elections are considered merely directory
after the people shall have spoken. A mandatory and material election law
requirement involves more than the will of the people in any given locality. Where
a material COC misrepresentation under oath is made, thereby violating both our
election and criminal laws, we are faced as well with an assault on the will of the
people of the Philippines as expressed in our laws. In a choice between provisions
on material qualifications of elected officials, on the one hand, and the will of the
electorate in any given locality, on the other, we believe and so hold that we
cannot choose the electorate will. The balance must always tilt in favor of
upholding and enforcing the law. To rule otherwise is to slowly gnaw at the rule
of law.

WHEREFORE, we DISMISS the petition for lack of merit. The Status Quo
Order we issued is hereby ordered IMMEDIATELY LIFTED. We DECLARE that there
is no more legal impediment or obstacle to the implementation of the assailed
COMELEC resolutions. No costs.

SO ORDERED.

ARTURO D. BRION
Associate Justice
WE CONCUR:

REYNATO S. PUNO
Chief Justice



LEONARDO A. QUISUMBING
Associate Justice



ANTONIO T. CARPIO
Associate Justice


(On leave)
RENATO C. CORONA
Associate Justice



ADOLFO S. AZCUNA
Associate Justice



MINITA V. CHICO-NAZARIO
Associate Justice



ANTONIO EDUARDO B. NACHURA
Associate Justice



CONSUELO YNARES-SANTIAGO
Associate Justice



MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice



CONCHITA CARPIO MORALES
Associate Justice



DANTE O. TINGA
Associate Justice



PRESBITERO J. VELASCO, JR.
Associate Justice



RUBEN T. REYES
Associate Justice

TERESITA J. LEONARDO-DE CASTRO
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Court.

REYNATO S. PU NO
Chief Justice



*
On leave.
[1]
G.R. No. 88831, November 8, 1990, 191 SCRA 229.
[2]
Sec. 138. J urisdiction in inclusion and exclusion cases. The Municipal and Metropolitan Trial Courts shall
have original and exclusive jurisdiction over all cases of inclusion and exclusion of voters from the list in their
respective cities or municipalities. Decisions of the Municipal or Metropolitan Trial Courts may be appealed by
the aggrieved party to the Regional Trial Courts within five (5) days from receipt of notice thereof. Otherwise,
said decision shall become final and executory. The regional trial court shall decide the appeal within ten (10)
days from the time it is received and the decision shall become final and executory. No motion for
reconsideration shall be entertained [As amended by Section 33 of Republic Act No. 8189].
[3]
G.R. No. 157013, July 10, 2003, 405 SCRA 614.
[4]
Leyley v. Commission on Elections, G.R. No. 160061, October 11, 2006, 504 SCRA 217, citing Sarangani v.
Commission on Elections, G.R. Nos. 155560-62, November 11, 2003, 415 SCRA 614.
[5]
See: Intestate Estate of Carmen de Luna vs. Intermediate Appellate Court, G. R. No. 72424, February13, 1989,
170 SCRA 246; Lalican vs. Vergara, G.R. No. 108619, July 31, 1997.
[6]
Ugdoracion v. Commission on Elections, G.R. No. 179851, April 18, 2008, citing Lluz v. COMELEC, G.R. No.
172840, June 7, 2007, 523 SCRA 456; Salcedo II v. COMELEC, G.R. No. 135886, August 16, 1999, 312 SCRA
447.
[7]
Ibid.
[8]
Section 39 of Republic Act No. 7160, otherwise known as the Local Government Code.
[9]
G.R. No. 134015, July 19, 1999, 310 SCRA 546, 564.
[10]
Ibid.
[11]
Tan-Cohon v. Election Registrar (G.R. No. L-29166, August 29, 1969, 29 SCRA 244) where we observed that it is
ridiculous to suppose that * + an important and intricate matter of citizenship may be passed upon and
determined with finality in such a summary and peremptory proceeding as that of inclusion and exclusion of
persons in the registry list of voters; even if the City Court had granted appellants petition for inclusion in the
permanent list of voters on the allegation that she is a Filipino citizen qualified to vote, her alleged Filipino
citizenship would still have been left open to question.
[12]
Ibid.
[13]
Rollo, p. 96.
[14]
Id., p. 93.
[15]
An Act Providing for a System of Overseas Absentee Voting by Qualified Citizens of the Philippines Abroad,
Appropriating Funds Therefor, and for Other Purposes, Enacted February 13, 2003.
[16]
G.R. No. 162759, August 4, 2006, 497 SCRA 649.
[17]
Supra note 3.
[18]
Sec. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified by law, at least
eighteen (18) years of age on the day of elections, may vote for president, vice-president, senators and party-
list representatives.
[19]
See Rollo, p. 49. There was no clear indicator that the registration is pursuant to, or in compliance with the
OAVL and its implementing rules COMELEC Resolution No. 6117 dated May 14, 2003 and COMELEC
Resolution No. 7447 dated March 18, 2005, as amended by COMELEC Resolution No. 7694, series of 2006.
[20]
Rollo, p. 49.

[21]
G.R. No. 151914, July 31, 2002, 385 SCRA 385.
[22]
See Salcedo II v. Commission on Elections, G.R. No. 135886 , August 1, 1999, 312 SCRA 447, 456-457.
[23]
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.
[24]
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.
[25]
An Act Introducing Additional Reforms in the Electoral System and for Other Purposes; Enacted January 5,
1988
[26]
Coquilla v. Commission on Elections, supra note 21.
[27]
Ibid.
[28]
Ibid, citing Abella v. Commission on Elections, G.R. No. 100710 September 3, 1991, 201 SCRA 253 and Salcedo II
v. Commission on Elections, supra note 22.
[29]
See Domino, supra note 9.
[30]
See Bautista v. Commission on Elections, G.R. Nos. 154796-97, October 23, 2003, 414 SCRA 299, 312-
313.
[31]
Quizon v. COMELEC, G.R. No. 177927, February 15, 2008, 545 SCRA 635, and Saya-ang, Sr. v. Commission
on Elections, G.R. No. 155807, November 28, 2003, 416 SCRA 650.









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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 179413 November 28, 2008
PRISCILA R. JUSTIMBASTE, petitioner,
vs.
COMMISSION ON ELECTIONS and RUSTICO B. BALDERIAN, respondents.
D E C I S I O N
CARPIO MORALES, J .:
On challenge via Certiorari and Prohibition is the Commission on Elections (COMELEC) en bancResolution of August 21,
2007
1
affirming the May 28, 2007
2
Resolution of its Second Division dismissing the petition for disqualification filed by
Priscila R. Justimbaste (petitioner) against Rustico B. Balderian (private respondent).
Gathered from the records of the case are the following antecedent facts:
On April 3, 2007, petitioner filed with the Office of the Leyte Provincial Election Supervisor a petition to disqualify private
respondent as a candidate for mayor of Tabontabon, Leyte during the May 14, 2007 elections. In the main, petitioner
alleged:
2.3. That the Respondent committed falsification and misinterpretation in his application for candidacy for
mayor as follows;
a. That while Respondent stated in the application [that] his name is Rustico Besa Balderian,his real
name is CHU TECK SIAO as shown in the Certificate of Birth issued by the National Statistic Office,
copy of which is hereto attached as "Annex B". (sic)
b. That the Respondent had been using as his middle name BESA, while his brother Bienvenido is
using the middle name SIAO, as shown by "Annexes C and D", a copy of which [is] hereto attached,
thereby confusing the public as to his identity.
c. That the Respondent is reportedly a U.S. citizen or Permanent resident of the United States and has
not reportedly relinquished his allegiance or residence to that foreign country, thus disqualified from
filing his application for Candidacy for mayor. (Emphasis and underscoring supplied)
3

Private respondent denied petitioners allegations, he asserting that he is a Filipino citizen.
In her Position Paper filed before the COMELEC, petitioner attached a record of private respondents travels from 1998 to
2006, as certified by the Bureau of Immigration;
4
a photocopy of private respondents Philippine Passport
5
issued on
November 6, 2002 by the Philippine Consulate in Los Angeles which shows his nationality as a Filipino; a Certification
from the National Statistics Office dated April 4, 2007 for one Rustico S. Balderian
6
and another for one Rustico B.
Balderian;
7
a Certification from the Office of the Civil Registrar of Tabontabon dated March 30, 2007 as to the fact of birth
of one Chu Teck Siao to Peter Siao and Zosima Balderian;
8
and a Certification from the Office of the Clerk of Court of the
Regional Trial Court, Tacloban City that the records of the Petition for Change of Name of private respondent "is (sic) not
available in the records of this office."
9

In the meantime, private respondent won and was proclaimed as mayor of Tabontabon.
By Resolution of May 28, 2007, the Second Division of the COMELEC denied the petition for disqualification, disposing as
follows:
WHEREFORE, premises considered the instant petition for disqualification is denied and the respondent
Rustico B. Balderian is considered a Filipino, having elected to be and is thus qualified to run as Mayor of
the Municipality of Tabontabon, Leyte. (Emphasis and underscoring supplied)
As reflected early on, petitioners Motion for Reconsideration of the COMELEC Second Division Resolution was denied by
the banc, hence, the present petition.
The issue in the main is whether private respondent committed material misrepresentation and falsification in his certificate
of candidacy.
Section 74 of the Omnibus Election Code (OEC) provides that the contents of the certificate of candidacy must be true to
the best of the candidates knowledge, thus:
SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing
it is announcing his candidacy for the office stated therein and that he is eligible for said office; if for
Member of the Batasang Pambansa, the province, including its component cities, highly urbanized city or
district or sector which he seeks to represent; the political party to which he belongs; civil status; his date of
birth; residence; his post office address for all election purposes; his profession or occupation; that he will
support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto; that
he will obey the laws, legal orders, and decrees promulgated by the duly constituted authorities; that he is not
a permanent resident or immigrant to a foreign country; that the obligation assumed by his oath is assumed
voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the certificate of
candidacy aretrue to the best of his knowledge. (Emphasis and underscoring supplied)
If the certificate contains a material representation which is false, Section 78 provides the procedure to challenge the same,
thus:
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.
(Emphasis and underscoring supplied)
Material misrepresentation as a ground to deny due course or cancel a certificate of candidacy refers to the falsity of a
statement required to be entered therein, as enumerated in above-quoted Section 74 of the Omnibus Election Code.
Concurrent with materiality is a deliberate intention to deceive the electorate as to ones qualifications. Thus Salcedo II v.
Commission on Elections
10
reiterates:
As stated in law, in order to justify the cancellation of the certificate of candidacy under Section 78, it is
essential that the false representation mentioned therein pertained 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.
11

x x x x
Therefore, it may be concluded that the material misrepresentation contemplated by Section 78 of the
Code refers to the qualifications for elective office. This conclusion is strengthened by the fact that the
consequences imposed upon a candidate guilty of having made a false representation in his certificate of
candidacy are grave to prevent the candidate from running or, if elected, from serving, or to prosecute him
for violation of election laws. It could not have been the intention of the law to deprive a person of such a
basic and substantive political right to be voted for a public office upon just any innocuous mistake.
12

x x x x
Aside from the requirement of materiality, a false representation under Section 78 must consist of
a"deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate
ineligible." In other words, it must be made with an intention to deceive the electorate as to ones
qualifications for public office. x x x
13
(Emphasis and underscoring supplied)
The pertinent provision of Republic Act No. 7160 or the Local Government Code (LGC) governing qualifications
for elective municipal officials
14
reads:
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 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 local language or dialect.
(b) Candidates for the position of governor, vice-governor or member of the sangguniang panlalawigan or
mayor, vice mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least
twenty three (23) years of age on election day."
x x x x (Emphasis in the original; underscoring supplied)
Petitioner asserts that private respondent committed material misrepresentation when he stated in his certificate of candidacy
that he is a Filipino citizen and that his name is Rustico Besa Balderian, instead of Chu Teck Siao. Further, petitioner asserts
that the immigration records of private respondent who frequently went to the United States from 1998 up to 2006 reflected
the acronyms "BB" and "RP" which petitioner takes to STAND FOR "Balikbayan" and "Re-entry Permit," thus showing that
private respondent either harbors dual citizenship or is a permanent resident of a foreign country in contravention of Section
40 of the LGC:
Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local
position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense
punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted of final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside
abroad and continue to avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded. (Emphasis in the original and supplied)
Upon the other hand, private respondent insists on his Filipino citizenship.
Republic Act 6768
15
provides that a balikbayan is
1. A Filipino citizen who has been continuously out of the Philippines for a period of at least one year;
2. A Filipino overseas worker; or
3. A former Filipino citizen and his or her family, who had been naturalized in a foreign country and comes or returns to the
Philippines.
Re-entry permits are, under the Philippine Immigration Act, issued to lawful resident aliens who depart temporarily from the
Philippines.
16

The record of the case yields no concrete proof to show that private respondent, who holds a Philippine passport, falls under
the third category of a balikbayan (former Filipino citizen).
As noted by public respondent:
[T]he Commission (Second Division) dismissed the instant petition since the same was based onmere
conjectures and surmises. Petitioner never presented clear and convincing evidence that respondent is indeed
an American citizen and a permanent resident of the United States of America. (Emphasis and underscoring
supplied)
As in petitioners petition before the COMELEC, as alleged above, she, in her present Petition, is uncertain of private
respondents citizenship or resident status, viz:
c. That the Respondent is reportedly a US citizen or Permanent resident of the United Statesand has
not reportedly relinquished his allegiance or residence to that foreign country, thus disqualified from filing
his application for Candidacy for mayor. (Emphasis, italics, and underscoring supplied)
17

Private respondents notarized photocopy of his Philippine Passport
18
issued in 2002, the genuineness and authenticity of
which is not disputed by petitioner, shows that he is a Filipino.
Petitioner insists, however, that private respondent is a Chinese national, following the nationality of his father, Peter Siao.
There are, however, conflicting documentary records bearing on the citizenship of private respondents father. Thus, in the
Certificate of Live Birth of private respondent on file at the Local Civil Registrar of Tabontabon,
19
the father is registered as
a Filipino. But in the Certificate of Live Birth of private respondents older brother Bienvenido Balderian,
20
the father is
registered as a Chinese.
In private respondents Certificate of Live Birth, the entry on the date, as well as the place of marriage of private
respondents parents, reads "no data available." In his brothers Certificate of Live Birth, the entry on the same desired
information is left blank. In light of these, absent any proof that private respondents parents Peter Siao and Zosima
Balderian
21
contracted marriage, private respondent is presumed to be illegitimate, hence, he follows the citizenship of his
mother who is a Filipino.
22
As will be reflected shortly, private respondent was, in a certified true copy of a decision dated
August 26, 1976 rendered by then Juvenile and Domestic Relations Court (JDRC) of Leyte and Southern Leyte, therein
noted, as gathered by the said court from the evidence presented, to be an illegitimate child.
Petitioner goes on to bring attention to private respondents filing of a petition for change of name from Chu Teck Siao to
Rustico B. Balderian, which petition, petitioner alleges, is not reflected in the records of the National Statistics Office as
shown by two Certifications from the said agency.
Responding, private respondent confirms that he indeed filed a verified petition for change of name in 1976, docketed as SP
Proc. JP-0121, with the then JDRC of Leyte and Southern Leyte which rendered a decision in his favor in the same year. He
adds that his previous counsel, Atty. Rufino Reyes, sought in 1986 to secure a certified true copy of the decision but no
court records thereof could be found, hence, Branch 7 of the Regional Trial Court (RTC) of Palo, Leyte, "reconstituted the
records" from the file copies of his counsel by Order of November 7, 1986.
23

The Court notes that by Order of November 21, 1986, Branch 7 of the Palo RTC, after conducting a hearing, directed the
issuance of a certified true copy of the judgment
24
rendered by the JDRC on August 26, 1976. The Order states:
"When this case came on [sic] hearing this morning, Assistant Provincial Fiscal Teresita S. Lopez of
Leyte who was then Clerk of Court of the JDRC of Leyte confirmed the genuineness of the file copy of
the aforesaid judgment of Judge Zoila M. Redoa of the JDRC of Leyte in SP Proc. JP-0121.
WHEREFORE, it is ordered that the clerk of this court issue a certified true copy of the aforesaid judgment in
SP Proc. JP-0121 dated August 26, 1986 (sic) the dispositive parts of which reads
"Premises considered, the court hereby allows the petitioner (sic) for Change of Name. The petitioner
henceforth shall carry the name of Rustico Balderian as prayed for."
Let a copy of this decision be furnished the Civil Registrar of McArthur, Leyte, for him to make of
record this judgment in his Civil Registry." (Emphasis and underscoring supplied)
25

In the certified true copy of the judgment of the JDRC, the following were noted:
At the hearing petitioner presented the following exhibits: "B" the order of the court setting the case for
hearing and ordering its publication; ordering also that a copy be served upon the Office of the Sol. Gen.
which was acknowledged having been received by said office on Nov. 11, 1975 as per return Registry
Receipt of the court attached to page 7 of the record; "C" the Affidavit of Publication of the Asst. Publisher
of the "The Reporter" the newspaper of general circulation which the order was published, "D" the issue of
"The Reporter" dated November 12, 1975 and "D-1" the page carried the order; "E" issue of same
newspaper dated November 19, 1975 and "E-1" the column carrying the order; "F" the issue of said
newspaper dated November 26, 1975, and the "F-1", the column carrying the order; "G" the certification of
the Local Civil Registrar; G-1, the place of birth of petitioner; G-2, his date of birth,; G-3, the name of
petitioners father Peter Siao; G-4, and his mothers name Zosima Balderian and G-5, the entry that
petitioner is an illegitimate child; which certification was issued on May 5, 1975 by said public official;
"H" petitioners Baptismal Certificate; "H-1" his date of birth; "H-2" his place of birth; "H-3" that his
parents are Peter Siao and Zosima Balderian. Exhibit "I" petitioners diploma from the Manila Central
University where he earned his degree of Optometry on April 6, 1975 and the name of Rustico Balderian; "J"
petitioners official rating issued by the Commissioner of Professional Regulation Commission under the
Board of Optometry issued January 13, 1976 under the name of Rustico B. Balderian; "K" petitioners
registration License No. 3374 with the Professional Regulation Commission for the practice of Optometry;
"L" petitioners Registration Card with the Manila Central University being enrolled in Pre-Medicine
Course as of June 1976; Exhibit "M" his registration card in the University of the East when he cross-
enrolled in the College of Law for the second year 1976-1977; Exhibit "N" Student Pilots License No.
758109 issued by the CAA to fly fixed wings; Exhibit "O" his Student Pilots License No. 75SH224 issued
by Civil Aeronautics Administration allowing him to fly a helicopter.
To the above school records which he earned under the name of Rustico Balderian, the name under which he
was baptized and hereon known to all since he can remember, he never used the alien name of Chua Teck
Siao by which he was registered. He has not been charged with any offense either criminally, civilly or
administratively.
His intention in filing the petition is to avoid undergoing the same difficulty and ordeal when he takes the
BAR examination and the Board examination in Medicine as he did when he took the Board Examination in
Optometry. After the latter Board allowed him to take the examination upon the submission of an affidavit of
two disinterested persons attesting to the fact that Chu Teck Siao and Rustico Balderian is one and the same
person, he was advised to petition for Change of Name to avoid confusion.
26
(Emphasis and underscoring
supplied)
That the records of the Tabontabon Civil Registry still show, by petitioners allegation, that private respondents name is
Chu Teck Siao does not necessarily mean that there was no such petition for change of name and that the certified true copy
of judgment thereon is spurious, especially given that, as highlighted in the above-quoted dispositive portion of the JDRC
decision, it was the Civil Registrar ofMcArthur, not Tabontabon, which was ordered to be copy-furnished the decision and
"to make of record [its] judgment in his Civil Registry."
AT ALL EVENTS, the use of a name other than that stated in the certificate of birth is not a material misrepresentation,
27
as
"material misrepresentation" under the earlier-quoted Section 78 of the Omnibus Election Code refers to "qualifications for
elective office." It need not be emphasized that there is no showing that there was an intent to deceive the electorate as to
private respondents identity, nor that by using his Filipino name the voting public was thereby deceived.
Petitioners compilation of online articles/data on private respondent puts on view his profile as Rustico B. Balderian.
Petitioner in fact has not claimed that the electorate did not know who they were voting for when they cast their ballots in
favor of private respondent or that they were deceived into voting for someone else other than him. Given that private
respondent and his family are members of the Colegio de Sta. Lourdes of Leyte Foundation, Inc. which operates a nursing
school in Tabontabon, it may safely be assumed that the electorate had been fully acquainted with him.
Petitioner finally assails the failure of public respondent to conduct hearings on her petition, citing Dayo v. Commission on
Elections
28
which held that "an election protest may not be disposed of by summary judgment."
29

Section 5 vis--vis Section 7 of Republic Act 6646
30
provides that the procedure in cases involving nuisance candidates shall
apply to petitions for cancellation of certificate of candidacy.
SECTION 5. Procedure in Cases of Nuisance Candidates.
(a) A Verified petition to declare a duly registered candidate as a nuisance candidate under Section 69
of Batas Pambansa Blg. 881 shall be filed personally or through duly authorized representative with
the Commission by any registered candidate for the same office within five (5) days from the last day
for the filing of certificates of candidacy. Filing by mail not be allowed.
(b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the
respondent candidate together with a copy of the petition and its enclosures, if any.
(c) The respondent shall be given three (3) days from receipt of the summons within which to file his
verified answer (not a motion to dismiss) to the petition, serving copy thereof upon the petitioner.
Grounds for a motion to dismiss may be raised as a affirmative defenses.
(d) The Commission may designate any of its officials who are lawyers to hear the case and receive
evidence. The proceeding shall be summary in nature. In lieu of oral testimonies, the parties may be
required to submit position papers together with affidavits or counter-affidavits and other
documentary evidence. The hearing officer shall immediately submit to the Commission his findings,
reports, and recommendations within five (5) days from the completion of such submission of
evidence. The Commission shall render its decision within five (5) days from receipt thereof.
(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy
thereof by the parties, be final and executory unless stayed by the Supreme Court.
(f) The Commission shall within twenty-four hours, through the fastest available means, disseminate
its decision or the decision of the Supreme Court to the city or municipal election registrars, boards of
election inspectors and the general public in the political subdivision concerned. (Underscoring
supplied)
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. (Emphasis in the original, underscoring supplied)
Petitioner is reminded that a petition for disqualification based on material misrepresentation in the certificate of candidacy
is different from an election protest. The purpose of an election protest is to ascertain whether the candidate proclaimed
elected by the board of canvassers is really the lawful choice of the electorate.
31

In fine, petitioner has not shown that public respondent, in issuing the assailed Resolution, committed grave abuse of
discretion amounting to lack or excess of jurisdiction.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice

WE CONCUR:
REYNATO S. PUNO
Chief Justice

LEONARDO A. QUISUMBING
Associate Justice
(On leave)
CONSUELO YNARES-SANTIAGO
Associate Justice
ANTONIO T. CARPIO
Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
RENATO C. CORONA
Associate Justice
ADOLFO S. AZCUNA
Associate Justice
DANTE O. TINGA
Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
RUBEN T. REYES
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
1
Rollo, pp. 115-117.
2
Id. at 105-109.
3
Id. at 5-6.
4
Id. at 48-52.
5
Id. at 53.
6
Id. at 74.
7
Id. at 75.
8
Id. at 76.
9
Id. at 77.
10
371 Phil. 377 (1999).
11
Id. at 386.
12
Id. at 389.
13
Id. at 390
14
Vide Omnibus Election Code, Sec. 65. Qualifications of elective local officials. The qualifications for
elective provincial, city, municipal and baranggay officials shall be those provided for in the Local
Government Code.
15
Entitled An Act Instituting a Balikbayan Program.
16
Sec 22. Any lawful resident alien about to depart temporarily from the Philippines who desires a re-entry
permit may apply to the Commissioner of Immigration for such permit. If the Commissioner finds that the
applicant has been lawfully admitted into the Philippines for permanent residence, he shall issue the permit
which shall be valid for a period not exceeding one year except that upon application for extension and good
cause therefore being shown by the applicant, it may be extended by the Commissioner for additional periods
not exceeding one year each. The Commissioner shall prescribe the form of permit. Applications for the
issuance or extension of permits shall be made under oath and in such form and manner, as the Commissioner
shall by regulations prescribe.
The permit, upon approval of the Commissioner of Immigration, may be made good for several trips
within the period of one year: Provided, however, That the holder thereof shall be required to pay the
fee required under section forty-two (a)(3) of the Act for every trip he makes. [Paragraph added
pursuant to Republic Act No. 503, Sec. 8]
17
Petition before this Court, rollo, p. 6.
18
Id. at 143.
19
Id. at 76.
20
Id. at 101.
21
Id. at 85 The verified petition for change of name filed by private respondent states that no marriage was
contracted between his parents. The birth certificate of private respondents brother bears no date of marriage
of the parents.
22
464 Phil.151 (2004).
23
Rollo, p. 78.
24
Id. at 79-84.
25
Id. at 91.
26
Id. at 79-81.
27
Supra at Salcedo II v. Commission on Elections.
28
G.R. No. 94681, July 18, 1991, 199 SCRA 449.
29
Id. at 452.
30
An Act Introducing Additional Reforms In The Electoral System And For Other Purposes.
31
387 Phil. 491, 511.

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 112889 April 18, 1995
BIENVENIDO O. MARQUEZ, JR., petitioner,
vs.
COMMISSION ON ELECTIONS and EDUARDO T. RODRIGUEZ, respondents.

VITUG, J .:
The Court is called upon, in this petition for certiorari, to resolve the conflicting claims of the parties on the meaning of the term
"fugitive from justice as that phrase is so used under the provisions of Section 40(e) of the Local Government Code (Republic Act
No. 7160). That law states:
Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local
position:
xxx xxx xxx
(e) Fugitive from justice in criminal or non-political cases here or abroad(.)
Bienvenido Marquez, a defeated candidate for the elective position for the elective position in the Province of Quezon in the 11th
May 1992 elections filed this petition for certiorari praying for the reversal of the resolution of the Commission on Elections
("COMELEC") which dismissed his petition for quo warranto against the winning candidate, herein private respondent Eduardo
Rodriguez, for being allegedly a fugitive from justice.
It is averred that at the time private respondent filed his certificate of candidacy, a criminal charge against him for ten (10) counts
of insurance fraud or grand theft of personal property was still pending before the Municipal Court of Los Angeles Judicial District,
County of Los Angeles, State of California, U.S.A. A warrant issued by said court for his arrest, it is claimed, has yet to be served
on private respondent on account of his alleged "flight" from that country.
Before the 11th May 1992 elections, a petition for cancellation (SPA 92-065) of respondent's certificate of candidacy, on the
ground of the candidate's disqualification under Section 40(e) of the Local Government Code, was filed by petitioner with the
COMELEC. On 08 May 1992, the COMELEC dismissed the petition.
Petitioner's subsequent recourse to this Court (in G.R. No. 105310) from the 08th May 1992 resolution of COMELEC was
dismissed without prejudice, however, to the filing in due time of a possible post-election quo warranto proceeding against private
respondent. The Court, in its resolution of 02 June 1992, held:
Evidently, the matter elevated to this Court was a pre-proclamation controversy. Since the private
respondent had already been proclaimed as the duly elected Governor of the Province of Quezon, the
petition below for disqualification has ceased to be a pre-proclamation controversy. In Casimiro
vs. Commission on Elections, G.R. Nos. 84462-63 and Antonio vs. Commission on Elections, G.R. Nos.
84678-79, jointly decided on 29 March 1989, 171 SCRA 468, this court held that a pre-proclamation
controversy is no longer viable at this point of time and should be dismissed. The proper remedy of the
petitioner is to pursue the disqualification suit in a separate proceeding.
ACCORDINGLY, the Court Resolved to DISMISS the petition, without prejudice to the filing of the appropriate
proceedings in the proper forum, if so desired, within ten (10) days from notice.
1

Private respondent was proclaimed Governor-elect of Quezon on 29 May 1992. Forthwith, petitioner instituted quo
warranto proceedings (EPC 92-28) against private respondent before the COMELEC. In its 02 February 1993 resolution, the
COMELEC (Second Division) dismissed the petition. The COMELEC En Banc, on 02 December 1993, denied a reconsideration
of the resolution.
Hence, this petition for certiorari, the core issue of which, such as to be expected, focuses on whether private respondent who, at
the time of the filing of his certificate of candidacy (and to date), is said to be facing a criminal charge before a foreign court and
evading a warrant for his arrest comes within the term "fugitive from justice" contemplated by Section 40(e) of the Local
Government Code and, therefore, disqualified from being a candidate for, and thereby ineligible from holding on to, an elective
local office.
Petitioner's position is perspicuous and to the point. The law, he asseverates, needs no further interpretation and construction.
Section 40(e) of Republic Act No. 7160, is rather clear, he submits, and it disqualifies "fugitive from justice" includes not only
those who flee after conviction to avoid punishment but likewise those who, after being charged flee to avoid prosecution. This
definition truly finds support from jurisprudence (Philippine Law Dictionary, Third Edition, p. 399, by F.B. Moreno; Black's Law
Dictionary, Sixth Edition, p. 671; King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103; Hughes vs. PFlanz, 138 Federal Reporter
980; Tobin vs. Casaus, 275 Pacific Reporter, 2d., p. 792), and it may be so conceded as expressing the general and ordinary
connotation of the term.
In turn, private respondent would have the Court respect the conclusions of the Oversight Committee which, conformably with
Section 533
2
of R.A. 7160, was convened by the President to "formulate and issue the appropriate rules and regulations
necessary for the efficient and effective implementation of any and all provisions of the Code to ensure compliance with the
principles of Local Autonomy.
Here are some excerpts from the committee's deliberations:
CHAIRMAN MERCADO. Session is resumed.
So, we are in agreement to retain Line 12, Page 36, as is. So next, Page 39.
CHAIRMAN DE PEDRO. Kay Benny Marquez.
REP. CUENCO: What does he want?
CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan. Bahala na kung kuwestiyunin
ang constitutionality nito before the Supreme Court later on.
REP. CUENCO. Anong nakalagay diyan?
CHAIRMAN DE PEDRO. Iyong disqualification to run for public office.
Any person who is a fugitive from justice in criminal or nonpolitical cases here or abroad.
Mabigat yung abroad. One who is facing criminal charges with the warrant of arrest
pending, unserved. . .
HONORABLE SAGUISAG. I think that is even a good point, ano what is a fugitive? It is
not defined. We have loose understanding. . .
CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms iyong fugitive.
Si Benny umalis na, with the understanding na okay na sa atin ito.
THE CHAIRMAN. Whether we have this rule or not she can run. She is not a fugitive from
justice. Mrs. Marcos can run at this point and I have held that for a long time ago. So can.
. .
MS. DOCTOR. Mr. Chairman. . .
THE CHAIRMAN. Yes.
MS. DOCTOR. Let's move to. . .
THE CHAIRMAN. Wait, wait, wait. Can we just agree on the wording, this is very
important. Manny, can you come up?
MR. REYES. Let's use the word conviction by final judgment.
THE CHAIRMAN. Fugitive means somebody who is convicted by final judgment. Okay,.
Fugitive means somebody who is convicted by final judgment. Insert that on Line 43 after
the semi-colon. Is that approved? No objection, approved (TSN, Oversight Committee, 07
May 1991).
xxx xxx xxx
THE CHAIRMAN. Andy, saan ba naman itong amendment on page 2? Sino ba ang
gumawa nito? Okay, on page 2, lines 43 and 44, "fugitive from justice". What "fugitive"?
Sino ba ang gumawa nito, ha?
MR. SANCHEZ. Yes, I think, well, last time, Mr. Chairman, we agree to clarify the word
"fugitive".
THE CHAIRMAN. "Fugitive from justice means a person" ba ito, ha?
MR. SANCHEZ. Means a person...
THE CHAIRMAN. Ha?
HON. REYES. A person who has been convicted.
THE CHAIRMAN; Yes, fugitive from justice, oo. Fugitive from justice shall mean or means
one who has been convicted by final judgment. It means one who has been convicted by
final judgment.
HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan.
THE CHAIRMAN. Ano? Sige, tingnan natin.
HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin siya?
THE CHAIRMAN. O, tama na yan, fugitive from justice. He has been convicted by final
judgment, meaning that if he is simply in jail and because he put up, post bail, but the case is
still being reviewed, that is not yet conviction by final judgment.
3

The Oversight Committee evidently entertained serious apprehensions on the possible constitutional infirmity of Section 40(e) of
Republic Act No. 7160 if the disqualification therein meant were to be so taken as to embrace those who merely were facing
criminal charges. A similar concern was expressed by Senator R. A. V. Saguisag who, during the bicameral conference
committee of the Senate and the House of Representatives, made this reservation:
. . . de ipa-refine lang natin 'yung language especially 'yung, the scope of fugitive. Medyo bothered ako doon, a.
4

The Oversight Committee finally came out with Article 73 of the Rules and Regulations Implementing the Local Government
Code of 1991. It provided:
Art. 73. Disqualifications. The following persons shall be disqualified from running for any elective local
position:
(a) . . .
(e) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from justice refers to a
person who has been convicted by final judgment.
5
(Emphasis supplied)
Private respondent reminds us that the construction placed upon law by the officials in charge of its enforcement deserves great
and considerable weight (Atlas Consolidated Mining and Development Corp. vs. CA, 182 SCRA 166, 181). The Court certainly
agrees; however, when there clearly is no obscurity and ambiguity in an enabling law, it must merely be made to apply as it is so
written. An administrative rule or regulation can neither expand nor constrict the law but must remain congruent to it. The Court
believes and thus holds, albeit with some personal reservations of the ponente (expressed during the Court's en
banc deliberations), that Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991, to the extent
that it confines the term "fugitive from justice" to refer only to a person (the fugitive) "who has been convicted by final judgment."
is an inordinate and undue circumscription of the law.
Unfortunately, the COMELEC did not make any definite finding on whether or not, in fact, private respondent is a "fugitive from
justice" as such term must be interpreted and applied in the light of the Court's opinion. The omission is understandable since the
COMELEC dismissed outrightly the petition for quo warranto on the basis instead of Rule 73 of the Rules and Regulations
promulgated by the Oversight Committee. The Court itself, not being a trier of facts, is thus constrained to remand the case to the
COMELEC for a determination of this unresolved factual matter.
WHEREFORE, the questioned resolutions of the Commission on Elections are REVERSED and SET ASIDE, and the case is
hereby REMANDED to the Commission which is DIRECTED to proceed and resolve the case with dispatch conformably with the
foregoing opinion. No special pronouncement on costs.
SO ORDERED.
Feliciano, Padilla, Melo, Quiason, Puno, Kapunan and Francisco, JJ., concur.



Separate Opinions

DAVIDE JR., J ., concurring:
Section 65 of the Omnibus Election Code (B.P. Blg. 881) states that the qualifications for elective provincial, city, municipal, and
barangay officials shall be those provided for in the Local Government Code. The quondam Local Government Code was B.P.
Blg. 337, which was superseded by R.A. No. 7160, otherwise known as the Local Government Code of 1991. Section 39 of the
latter provides for the qualifications and election of local elective officials. Section 40 enumerates those who are disqualified from
running for any elective local position, among whom is a:
(e) Fugitive from justice in criminal or non-political cases here or abroad.
The term "fugitive from justice" refers not only to those who flee after conviction to avoid punishment but also to those who, after
being charged, flee to avoid prosecution. In his ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the Oversight
Committee, i.e., "a person who has been convicted by final judgment," as appearing in Article 73 of the Rules and Regulations
Implementing the Local Government Code of 1991, as inordinate and as undue circumscription of the law. I agree.
But this is only one side of the coin. I further submit that it also unreasonably expands the scope of the disqualification in the
1991 Local Government Code because it disqualifies all those who have been convicted by final judgment, regardless of the
extent of the penalty imposed and of whether they have served or are serving their sentences or have evaded service of
sentence by jumping bail or leaving for another country. The definition thus disregards the true and accepted meaning of the
word fugitive. This new definition is unwarranted for nothing in the legislative debates has been shown to sustain it and the clear
language of the law leaves no room for a re-examination of the meaning of the term.
I do not share the doubt of Mr. Justice Vitug on the constitutionality of the disqualification based on the presumption of innocence
clause of the Bill of Rights. There are certain fundamental considerations which do not support the applications of the
presumption
Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to determine who are disqualified from
exercising the right of suffrage. Since the minimum requirement of a candidate for a public office is that he must be a qualified
voter, it logically follows that Congress has the plenary power to determine who are disqualified to seek election for a public
office.
Secondly, a public office is a public trust. Section 1, Article XI of the Constitution expressly provides:
Sec. 1. Public office is public trust. Public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.
A public office is not property. (ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101; JOAQUIN BERNAS, The Constitution of
the Republic of the Philippines, A Commentary, 1987 ed., 40, citing Cornejo vs. Gabriel, 41 Phil. 188 [1920]). Accordingly, stricter
qualifications for public office may thus be required by law.
Thirdly, the disqualification in guestion does not, in reality, involve the issue of presumption of innocence. Elsewise stated, one is
not disqualified because he is presumed guilty by the filing of an information or criminal complaint against him. He is disqualified
because he is a "fugitive from justice," i.e., he was not brought within the jurisdiction of the court because he had successfully
evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded
service of sentence because he had jumped bail or escaped. The disqualification then is based on his flight from justice. In the
face of the settled doctrine that flight is an indication of guilt, it may even be truly said that it is not the challenged disqualifying
provision which overcomes the presumption of innocence but rather the disqualified person himself who has proven his guilt.
Finally, Dumlao vs. COMELEC (95 SCRA 392 [1980]) cannot be invoked to cast doubt on the validity of the challenged
disqualification. Dumlao struck out as violative of the constitutional presumption of innocence that portion of the second
paragraph, Section 4 of B.P. Blg. 52 providing that "the filing of charges for the commission of such crimes before a civil court or
military tribunal after preliminary investigation shall be prima facie evidence of such fact." It is clear that the law challenged
therein did in fact establish a presumption of guilt from the mere filing of the information or criminal complaint, in violation of the
constitutional right to presumption of innocence.
Narvasa, C.J., Romero, Bellosillo and Mendoza, JJ., concur.


Separate Opinions
DAVIDE JR., J ., concurring:
Section 65 of the Omnibus Election Code (B.P. Blg. 881) states that the qualifications for elective provincial, city, municipal, and
barangay officials shall be those provided for in the Local Government Code. The quondam Local Government Code was B.P.
Blg. 337, which was superseded by R.A. No. 7160, otherwise known as the Local Government Code of 1991. Section 39 of the
latter provides for the qualifications and election of local elective officials. Section 40 enumerates those who are disqualified from
running for any elective local position, among whom is a:
(e) Fugitive from justice in criminal or non-political cases here or abroad.
The term "fugitive from justice" refers not only to those who flee after conviction to avoid punishment but also to those who, after
being charged, flee to avoid prosecution. In his ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the Oversight
Committee, i.e., "a person who has been convicted by final judgment," as appearing in Article 73 of the Rules and Regulations
Implementing the Local Government Code of 1991, as inordinate and as undue circumscription of the law. I agree.
But this is only one side of the coin. I further submit that it also unreasonably expands the scope of the disqualification in the
1991 Local Government Code because it disqualifies all those who have been convicted by final judgment, regardless of the
extent of the penalty imposed and of whether they have served or are serving their sentences or have evaded service of
sentence by jumping bail or leaving for another country. The definition thus disregards the true and accepted meaning of the
word fugitive. This new definition is unwarranted for nothing in the legislative debates has been shown to sustain it and the clear
language of the law leaves no room for a re-examination of the meaning of the term.
I do not share the doubt of Mr. Justice Vitug on the constitutionality of the disqualification based on the presumption of innocence
clause of the Bill of Rights. There are certain fundamental considerations which do not support the applications of the
presumption
Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to determine who are disqualified from
exercising the right of suffrage. Since the minimum requirement of a candidate for a public office is that he must be a qualified
voter, it logically follows that Congress has the plenary power to determine who are disqualified to seek election for a public
office.
Secondly, a public office is a public trust. Section 1, Article XI of the Constitution expressly provides:
Sec. 1. Public office is public trust. Public officers and employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.
A public office is not property. (ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101; JOAQUIN BERNAS, The Constitution of
the Republic of the Philippines, A Commentary, 1987 ed., 40, citing Cornejo vs. Gabriel, 41 Phil. 188 [1920]). Accordingly, stricter
qualifications for public office may thus be required by law.
Thirdly, the disqualification in guestion does not, in reality, involve the issue of presumption of innocence. Elsewise stated, one is
not disqualified because he is presumed guilty by the filing of an information or criminal complaint against him. He is disqualified
because he is a "fugitive from justice," i.e., he was not brought within the jurisdiction of the court because he had successfully
evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded
service of sentence because he had jumped bail or escaped. The disqualification then is based on his flight from justice. In the
face of the settled doctrine that flight is an indication of guilt, it may even be truly said that it is not the challenged disqualifying
provision which overcomes the presumption of innocence but rather the disqualified person himself who has proven his guilt.
Finally, Dumlao vs. COMELEC (95 SCRA 392 [1980]) cannot be invoked to cast doubt on the validity of the challenged
disqualification. Dumlao struck out as violative of the constitutional presumption of innocence that portion of the second
paragraph, Section 4 of B.P. Blg. 52 providing that "the filing of charges for the commission of such crimes before a civil court or
military tribunal after preliminary investigation shall be prima facie evidence of such fact." It is clear that the law challenged
therein did in fact establish a presumption of guilt from the mere filing of the information or criminal complaint, in violation of the
constitutional right to presumption of innocence.
Narvasa, C.J., Romero, Bellosillo and Mendoza, JJ., concur.
Footnotes
1 Rollo, p. 31.
2 Sec. 533. Formulation of Implementing Rules and Regulations.
(a) Within one (1) month after the approval of this Code, the President shall convene the Oversight
Committee as herein provided for. The said Committee shall formulate and issue the appropriate rules
and regulations necessary for the efficient and effective implementation of any and all provisions of this
Code, thereby ensuring compliance with the principles of local autonomy as defined under the
Constitution.
(b) The Committee shall be composed of the following:
1. The Executive Secretary, who shall be the Chairman;
2. Three (3) members of the Senate to be appointed by the President of the
Senate, to include the Chairman of the Committee on Local Government;
3. Three (3) members of the House of Representatives to be appointed by
the Speaker, to include the Chairman of the Committee on Local
Government;
4. The Cabinet, represented by the following:
(i) Secretary of the interior and Local Government;
(ii) Secretary of Finance;
(iii) Secretary of Budget and Management; and
5. One (1) representative from each of the following:
i. The League of Provinces;
ii. The League of Cities;
iii. The League of Municipalities; and
iv. The Liga ng mga Barangay.
(c) The Committee shall submit its report and recommendation to the President within two (2) months
after its organization. If the President fails to act within thirty (30) days from receipt thereof, the
recommendation of the Oversight Committee shall be deemed approved. Thereafter, the committee shall
supervise the transfer of such powers and functions mandated under this Code to the local government
units, together with the corresponding personnel, properties, assets and liabilities of the offices or
agencies concerned, with the least possible disruptions to existing programs and projects. The Committee
shall likewise recommend the corresponding appropriations necessary to effect the said transfer.
For this purpose, the services of a technical staff shall be enlisted from among the qualified employees of
Congress, the government offices, and the leagues constituting the Committee.
(d) The funding requirements and the secretariat of the Committee shall be provided by the Office of the
Executive Secretary.
(e) The sum of Five million pesos (P5,000,000.00), which shall be charged against the Contingent Fund,
is hereby allotted to the Committee to fund the undertaking of an information campaign on this Code. The
Committee shall formulate the guidelines governing the conduct of said campaign, and shall determine
the national agencies or offices to be involved for this purpose.
3 Rollo, pp. 221-223.
4 Rollo, p. 220.
5 Art. 73, Rule XIV, Rules and Regulations Implementing the Local Government Code of 1991.

The Lawphil Project - Arellano Law Foundation


SYLLABI/SYNOPSIS
EN BANC
[G.R. No. 132774. June 21, 1999]
RODOLFO E. AGUINALDO, FLORENCIO L. VARGAS, ROMEO I.
CALUBAQUIB, AMADO T. GONZALES, SILVERIO C.
SALVANERA, ALBERTA O. QUINTO, and AURORA V.
ESTABILLO, petitioners, vs. COMMISSION ON
ELECTIONS, respondents.
R E S O L U T I O N
QUISUMBING, J .:
Before us is a petition for prohibition under Rule 65 of the Revised Rules of Court, with a
prayer for the issuance of a writ of preliminary injunction and/or a temporary restraining order.
Petitioners, at the time of the filing of the petition, were incumbent provincial or municipal
officials in Cagayan. Petitioner Rodolfo E. Aguinaldo was governor; Florencio L. Vargas, vice
governor; Romeo I. Calubaquib, member of the Sangguniang Panlalawigan; Amado T.
Gonzales, member of the Sangguniang Panlalawigan; Silverio C. Salvanera, member of
the Sangguniang Panlalawigan; Alberta O. Quinto, mayor of the municipality of Peablanca;
and Aurora V. Estabillo, mayor of the municipality of Sta. Praxedes.
Petitioners seek to prevent the COMELEC from enforcing during the 1998 elections Section
67 of the Omnibus Election Code (B.P. Blg. 881) in accordance with its own tenor or as
modified by paragraph 3 of Section 11 of Republic Act No. 8436.
Section 67 of the Omnibus Election Code reads:
Sec. 67. Candidates holding elective office. -- Any elective official, whether national
or local, running for any office other than the one which he is holding in a permanent
capacity, except for President and Vice-President, shall be considered ipso facto
resigned from his office upon the filing of his certificate of candidacy.
On the other hand, the third paragraph of Section 11 of R.A. No. 8436 reads:
SEC. 11. Official Ballot. --
Provided, That any elective official, whether national or local, running for any
office other than the one he/she is holding in a permanent capacity, except for
president and vice-president, shall be deemed resigned only upon the start of the
campaign period corresponding to the position for which he/she is running;
Petitioners contend that Section 67, of the Omnibus Election Code is violative of the equal
protection clause of the Constitution, as its classification of persons running for office is not a
valid classification, following the guidelines laid down by the Court in People v.
Cayat.
[1]
According to the doctrine laid down in Cayat, for a classification to be valid, (1) it must be based upon
substantial distinctions, (2) it must be germane to the purpose of the law, (3) it must not be limited to existing
conditions only, and (4) it must apply equally to all members of the same class.
Petitioners contend that the classification in Section 67 is not based on substantial
distinctions and, thus, violative of the equal protection clause of the Constitution.
According to petitioners, candidates for elective office are classified into the following
groups under Section 67:
(a) First classification: an incumbent elective official who runs for the same position
as his present incumbency (and) another incumbent elective official running for
another position; and
(b) Second Classification: an incumbent elective official who runs for president or
vice-president(and) another incumbent elective [official] running for any other
position (i.e., not his incumbency nor for president or vice president)
[2]

Petitioners argue that, in the first classification, the reelectionist is given an undue
advantage since he is able to use the resources, prestige, and influence of his position. The same
is not available to one seeking an office different from the one he is presently holding. This,
according to petitioners, does not equalize the playing field for all candidates.
As regards the second classification, petitioners argue that there is no basis for giving
candidates for president or vice president the special privilege
[3]
of remaining in office.
Petitioners claim that the classifications result into absurd or unwanted and difficult
situations
[4]
and give the following examples: (1) a mayor who runs for president remains as mayor even though
he is physically absent from his city or municipality because he campaigns nationwide; (2) a councilor or vice
mayor who runs for mayor is considered resigned from his position although he remains physically present in his
locality; (3) a president -- a national official -- who runs for a lower position is considered resigned from office,
while the mayor -- a local official -- who runs for president is not.
Petitioners contend that the classifications could have been made without sufficient
study,
[5]
as the Omnibus Election Code was passed during the Marcos years, when no one could honestly believe
he could be elected president or even vice president.
[6]
Also during that time, members of the Batasang Pambansa
could run for reelection indefinitely so it was not likely for any of them to run for a lower position. Petitioners say
that Section 67 was largely ignored as an innocous (sic) oddity.
[7]
Their thesis therefore is that the provision did
not get sufficient attention and analysis that would have brought out its constitutional infirmities.
[8]

Petitioners also argue that Section 67 effectively shortens the terms of office of elected
officials, in violation of Article X, Section 8 of the Constitution, which provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for
more than three consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.
Petitioners lament that no relevant discussions
[9]
seem to have been made in relation to the re-
enactment of Section 67 of the Omnibus Election Code into Section 11 of R.A. No. 8436.
The COMELEC, on the other hand, asserts that the classification embodied in Section 67 is
reasonable and based on substantial distinction. It points out that incumbents running for the
same position are not considered resigned because the intention of the law is to allow them to
continue serving their constituents and avoid a disruption in the delivery of essential
services. Those running for different positions are considered resigned because they are
considered to have abandoned their present position by their act of running for other posts.
For his part, the Solicitor General points out that the issue regarding Section 67 had already
been passed upon by the Court in the case of Dimaporo v. Mitra, Jr.
[10]

Mohammad Ali Dimaporo was a congressman representing the second legislative district of
Lanao del Sur. On January 15, 1990, he filed a certificate of candidacy for the position of
governor of the Autonomous Region in Muslim Mindanao (ARMM). The COMELEC thereafter
informed the House of Representatives of this matter. Then House Speaker Ramon V. Mitra, Jr.
and the Secretary of the House of Representatives Camilo L. Sabio excluded his name from the
roll of members.
Dimaporo lost in the ARMM elections. He wrote Mitra a letter expressing his desire to
resume his functions as a member of the House of Representatives. It appears that this did not
materialize; thus, Dimaporo filed a petition with the Supreme Court praying for his
reinstatement.
Dimaporo claimed that his act of filing a certificate of candidacy for another position did not
divest him of his seat as a member of the House of Representatives. He alleged that Section 67
of the Omnibus Election Code was no longer operative as it is violative of the
Constitution. Dimaporo said Section 67 shortens the term of office of a congressman on a
ground not provided for under Article XVIII, Section 2 of the Constitution,
[11]
in relation to Article
VI, Section 7.
[12]

Dimaporo asserted that, as provided by law, the term of a member of the House of
Representatives may only be shortened through the following:
(1) Forfeiture of his seat by holding any other office or employment in the government or any
subdivision, agency or instrumentality thereof, including government-owned or controlled
corporations or subsidiaries;
[13]

(2) Expulsion as a disciplinary action for disorderly behavior;
[14]

(3) Disqualification as determined by resolution of the Electoral Tribunal in an election
contest;
[15]
and
(4) Voluntary renunciation of office.
[16]

The Court proceeded to trace the history and examine the rationale behind Section 67. We
then ruled:
... rather than cut short the term of office of elective public officials, this statutory
provision seeks to ensure that such officials serve out their entire term of office by
discouraging them from running for another public office and thereby cutting short
their tenure by making it clear that should they fail in their candidacy, they cannot go
back to their former position. This is consonant with the constitutional edict that all
public officials must serve the people with utmost loyalty and not trifle with the
mandate which they have received from their constituents.
[17]

Indeed, we have dealt squarely with the issue of the validity of Section 67 of the Omnibus
Election Code in Dimaporo v. Mitra, Jr.
Section 67 was crafted with the intention of giving flesh to the constitutional pronouncement
that public service is a public trust. The following portion of our ruling in Dimaporo is apropos:
Assemblyman Manuel M. Garcia, in answer to the query of Assemblyman Arturo
Tolentino on the constitutionality of Cabinet Bill No. 2,
[18]
said:
MR. GARCIA (M.M.):
Thank you, Mr. Speaker.
Mr. Speaker, on the part of the Committee, we made this proposal based on
constitutional grounds. We did not propose this amendment mainly on the rationale
as stated by the Gentlemen from Manila that the officials running for office other than
the ones they are holding will be considered resigned not because of abuse of facilities
of power or the use of office facilities but primarily because under our Constitution,
we have this new chapter on accountability of public officers...
xxx
...This only means that all elective public officials should honor the mandate they have gotten from the
people... a Batasan Member who hold (sic) himself out with the people and seek (sic) their support and
mandate should not be allowed to deviate or allow himself to run for any other position unless he
relinquishes or abandons his office. Because his mandate to the people is to serve for 6 years. Now, if
you allow a Batasan or a governor or a mayor who was mandated to serve for 6 years to file for an office
other than the one he was elected to, then, that clearly shows that he has not (sic) intention to service
the mandate of the people which was placed upon him and therefore he should be considered ipso facto
resigned. I think more than anything that is the accountability that the Constitution requires of elective
public officials...
[19]

Section 67 is not violative of the Constitution as it does not unduly cut short the term of
office of local officials. The situation that results with the application of Section 67 is covered
by the term voluntary renunciation.
Even then, the concept of voluntary renunciation of office under Section 7, Article
VI of the Constitution is broad enough to include the situation envisioned in Section
67, Article IX of B.P. Blg. 881. As discussed by the Constitutional Commissioners:
MR. MAAMBONG:
Could I address the clarificatory question to the Committee? The term voluntary renunciation does
not only appear in Section 3; it appears in Section 6.
MR. DAVIDE:
Yes.
MR. MAAMBONG:
It is also a recurring phrase all over the constitution. Could the Committee please enlighten us exactly
what voluntary renunciation means? Is this akin to abandonment?
MR. DAVIDE:
Abandonment is voluntary. In other words, he cannot circumvent the restriction by merely resigning
at any given time on the second term.
MR. MAAMBONG:
Is the Committee saying that the term voluntary renunciation is more general than abandonment and
resignation?
MR. DAVIDE:
It is more general, more embracing.
That the act, contemplated in Section 67, Article IX of B.P. Blg. 881, of filing a
certificate of candidacy for another office constitutes an overt, concrete act of
voluntary renunciation of the elective office presently being held is evident from this
exchange between the Members of Parliament Arturo Tolentino and Jose Roo:
MR. ROO:
My reasonable ground is this: if you will make the person ... my, shall we say, basis is that in one case
the person is intending to run for an office which is different from his own, and therefore it
should be considered, at least from the legal significance, an intention to relinquish his office.
MR. TOLENTINO:
Yes.
MR. ROO:
And in the other, because he is running for the same position, it is otherwise.
MR. TOLENTINO:
Yes, but what I cannot see is why are you going to compel a person to quit an office which he is only
intending to leave? A relinquishment of office must be clear, must be definite.
MR. ROO:
Yes, sir. Thats precisely, Mr. Speaker, what Im saying that while I do not disagree with the
conclusion that the intention cannot be enough, but I am saying that the filing of the certificate of
candidacy is an overt act of such intention. Its not just an intention: its already there.
[20]

Our foregoing ruling in Dimaporo is still applicable in this case.
Petitioners further assert that Section 67 could have been formulated without sufficient
study (emphasis supplied). Petitioners choice of words betray their own uncertainty as to
whether or not the implications of Section 67 were thoroughly analyzed before such section
became law. Unfortunately for petitioners, uncertainties do not justify nullification of a law.
Moreover, it must be pointed out that this present petition is one for prohibition which is a
preventive remedy. The act sought to be enjoined had already been accomplished with the
holding of the 1998 elections. Prohibition, as a rule, does not lie to restrain an act that is already
a fait accompli.
[21]

WHEREFORE, the instant petition is hereby dismissed for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Purisima, Pardo,
Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.
Puno and Panganiban, JJ., no part. On official leave.



[1]
68 Phil. 12 (1939).
[2]
Rollo, p. 10.
[3]
Id. at 12.
[4]
Ibid.
[5]
Rollo, p. 14.
[6]
Ibid.
[7]
Rollo, p. 15.
[8]
Ibid.
[9]
Ibid.
[10]
202 SCRA 779 (1991).
[11]
This provision reads, The Senators, Members of the House of Representatives, and the local officials first
elected under this Constitution shall serve until noon of June 30, 1992.
[12]
The Members of the House of Representatives shall be elected for a term of three years which shall begin,
unless otherwise provided by law, at noon on the thirtieth day of June next following their election. xxx
[13]
CONST., Art. VI, Sec. 13.
[14]
Id. at Sec. 16(3).
[15]
Id. at Sec. 17.
[16]
Id. at Sec. 7, par. 2.
[17]
Dimaporo v. Mitra, supra, at 790.
[18]
This cabinet bill became the basis for Section 67 of the Omnibus Election Code.
[19]
Dimaporo v. Mitra, Jr., supra, at 788-789.
[20]
Dimaporo v. Mitra, supra, at 792-793.
[21]
Vergara v. Rugue, 78 SCRA 312 (1977); Perez v. De la Cruz, 27 SCRA 587 (1969); Cabaero v. Torres, 61 Phil.
522 (1935).
EN BANC
[G.R. No. 125955. June 19, 1997]
WILMER GREGO, petitioner, vs. COMMISSION ON ELECTIONS and
HUMBERTO BASCO, respondents.
D E C I S I O N
ROMERO, J .:
The instant special civil action for certiorari and prohibition impugns the resolution of
the Commission on Elections (COMELEC) en banc in SPA No. 95-212 dated July 31,
1996, dismissing petitioners motion for reconsideration of an earlier resolution rendered
by the COMELECs First Division on October 6, 1995, which also dismissed the petition
for disqualification
[1]
filed by petitioner Wilmer Grego against private respondent
Humberto Basco.
The essential and undisputed factual antecedents of the case are as follows:
On October 31, 1981, Basco was removed from his position as Deputy Sheriff by no
less than this Court upon a finding of serious misconduct in an administrative complaint
lodged by a certain Nena Tordesillas. The Court held:
WHEREFORE, FINDING THE RESPONDENT DEPUTY SHERIFF HUMBERTO
BASCO OF THE CITY COURT OF MANILA GUILTY OF SERIOUS
MISCONDUCT IN OFFICE FOR THE SECOND TIME, HE IS HEREBY
DISMISSED FROM THE SERVICE WITH FORFEITURE OF ALL RETIREMENT
BENEFITS AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION
IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES
AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED
CORPORATIONS.
x x x x x
x x x x
[2]

Subsequently, Basco ran as a candidate for Councilor in the Second District of the
City of Manila during the January 18, 1988, local elections. He won and, accordingly,
assumed office.
After his term, Basco sought re-election in the May 11, 1992 synchronized national
elections. Again, he succeeded in his bid and he was elected as one of the six (6) City
Councilors. However, his victory this time did not remain unchallenged. In the midst of
his successful re-election, he found himself besieged by lawsuits of his opponents in the
polls who wanted to dislodge him from his position.
One such case was a petition for quo warranto
[3]
filed before the COMELEC by
Cenon Ronquillo, another candidate for councilor in the same district, who alleged
Bascos ineligibility to be elected councilor on the basis of the Tordesillas ruling. At
about the same time, two more cases were also commenced by Honorio Lopez II in the
Office of the Ombudsman and in the Department of Interior and Local Government.
[4]
All
these challenges were, however, dismissed, thus, paving the way for Bascos continued
stay in office.
Despite the odds previously encountered, Basco remained undaunted and ran
again for councilor in the May 8, 1995, local elections seeking a third and final
term. Once again, he beat the odds by emerging sixth in a battle for six councilor
seats. As in the past, however, his right to office was again contested. On May 13,
1995, petitioner Grego, claiming to be a registered voter of Precinct No. 966, District II,
City of Manila, filed with the COMELEC a petition for disqualification, praying for
Bascos disqualification, for the suspension of his proclamation, and for the declaration
of Romualdo S. Maranan as the sixth duly elected Councilor of Manilas Second District.
On the same day, the Chairman of the Manila City Board of Canvassers (BOC) was
duly furnished with a copy of the petition. The other members of the BOC learned about
this petition only two days later.
The COMELEC conducted a hearing of the case on May 14, 1995, where it ordered
the parties to submit simultaneously their respective memoranda.
Before the parties could comply with this directive, however, the Manila City BOC
proclaimed Basco on May 17, 1995, as a duly elected councilor for the Second District
of Manila, placing sixth among several candidates who vied for the seats.
[5]
Basco
immediately took his oath of office before the Honorable Ma. Ruby Bithao-Camarista,
Presiding Judge, Metropolitan Trial Court, Branch I, Manila.
In view of such proclamation, petitioner lost no time in filing an Urgent Motion
seeking to annul what he considered to be an illegal and hasty proclamation made on
May 17, 1995, by the Manila City BOC. He reiterated Bascos disqualification and
prayed anew that candidate Romualdo S. Maranan be declared the winner. As
expected, Basco countered said motion by filing his Urgent Opposition to: Urgent
Motion (with Reservation to Submit Answer and/or Motion to Dismiss Against Instant
Petition for Disqualification with Temporary Restraining Order).
On June 5, 1995, Basco filed his Motion to Dismiss Serving As Answer pursuant to
the reservation he made earlier, summarizing his contentions and praying as follows:
Respondent thus now submits that the petitioner is not entitled to relief for the
following reasons:
1. The respondent cannot be disqualified on the ground of Section 40 paragraph b
of the Local Government Code because the Tordesillas decision is barred by laches,
prescription, res judicata, lis pendens, bar by prior judgment, law of the case and stare
decisis;
2. Section 4[0] par. B of the Local Government Code may not be validly applied
to persons who were dismissed prior to its effectivity. To do so would make it ex post
facto, bill of attainder, and retroactive legislation which impairs vested rights. It is
also a class legislation and unconstitutional on the account.
3. Respondent had already been proclaimed. And the petition being a
preproclamation contest under the Marquez v. Comelec Ruling, supra, it should be
dismissed by virtue of said pronouncement.
4. Respondents three-time election as candidate for councilor constitutes implied
pardon by the people of previous misconduct (Aguinaldo v. Comelec G.R. 105128;
Rice v. State 161 SCRA 401; Montgomery v. Newell 40 SW 2d 4181; People v.
Bashaw 130 P. 2nd 237, etc.).
5. As petition to nullify certificate of candidacy, the instant case has prescribed; it
was premature as an election protest and it was not brought by a proper party in
interest as such protest.:
PRAYER
WHEREFORE it is respectfully prayed that the instant case be dismissed on instant
motion to dismiss the prayer for restraining order denied (sic). If this Honorable
Office is not minded to dismiss, it is respectfully prayed that instant motion be
considered as respondents answer. All other reliefs and remedies just and proper in
the premises are likewise hereby prayed for.
After the parties respective memoranda had been filed, the COMELECs First
Division resolved to dismiss the petition for disqualification on October 6, 1995, ruling
that the administrative penalty imposed by the Supreme Court on respondent Basco on
October 31, 1981 was wiped away and condoned by the electorate which elected him
and that on account of Bascos proclamation on May 17, 1965, as the sixth duly elected
councilor of the Second District of Manila, the petition would no longer be viable.
[6]

Petitioners motion for reconsideration of said resolution was later denied by the
COMELEC en banc in its assailed resolution promulgated on July 31, 1996.
[7]
Hence,
this petition.
Petitioner argues that Basco should be disqualified from running for any elective
position since he had been removed from office as a result of an administrative case
pursuant to Section 40 (b) of Republic Act No. 7160, otherwise known as the Local
Government Code (the Code), which took effect on January 1, 1992.
[8]

Petitioner wants the Court to likewise resolve the following issues, namely:
1. Whether or not Section 40 (b) of Republic Act No. 7160 applies retroactively to
those removed from office before it took effect on January 1, 1992;
2. Whether or not private respondents election in 1988, 1992 and in 1995 as City
Councilor of Manila wiped away and condoned the administrative penalty against him;
3. Whether or not private respondents proclamation as sixth winning candidate on
May 17, 1995, while the disqualification case was still pending consideration by COMELEC,
is void ab initio; and
4. Whether or not Romualdo S. Maranan, who placed seventh among the candidates
for City Councilor of Manila, may be declared a winner pursuant to Section 6 of Republic
Act No. 6646.
While we do not necessarily agree with the conclusions and reasons of the
COMELEC in the assailed resolution, nonetheless, we find no grave abuse of discretion
on its part in dismissing the petition for disqualification. The instant petition must,
therefore, fail.
We shall discuss the issues raised by petitioner in seriatim.
I. Does Section 40 (b) of Republic Act No. 7160 apply retroactively to those removed
from office before it took effect on January 1, 1992?
Section 40 (b) of the Local Government Code under which petitioner anchors
Bascos alleged disqualification to run as City Councilor states:
SEC. 40. Disqualifications. - The following persons are disqualified from running
for any elective local position:
x x x x x
x x x x
(b) Those removed from office as a result of an administrative case;
x x x x x
x x x x.
In this regard, petitioner submits that although the Code took effect only on January
1, 1992, Section 40 (b) must nonetheless be given retroactive effect and applied to
Bascos dismissal from office which took place in 1981. It is stressed that the provision
of the law as worded does not mention or even qualify the date of removal from office of
the candidate in order for disqualification thereunder to attach. Hence, petitioner
impresses upon the Court that as long as a candidate was once removed from office
due to an administrative case, regardless of whether it took place during or prior to the
effectivity of the Code, the disqualification applies.
[9]
To him, this interpretation is made
more evident by the manner in which the provisions of Section 40 are couched. Since
the past tense is used in enumerating the grounds for disqualification, petitioner strongly
contends that the provision must have also referred to removal from office occurring
prior to the effectivity of the Code.
[10]

We do not, however, subscribe to petitioners view. Our refusal to give retroactive
application to the provision of Section 40 (b) is already a settled issue and there exist no
compelling reasons for us to depart therefrom. Thus, in Aguinaldo vs.
COMELEC,
[11]
reiterated in the more recent cases of Reyes vs.
COMELEC
[12]
and Salalima vs. Guingona, Jr.,
[13]
we ruled, thus:
The COMELEC applied Section 40 (b) of the Local Government Code (Republic
Act 7160) which provides:
Sec. 40. The following persons are disqualified from running for any elective local
positions:
x x x x x
x x x x
(b) Those removed from office as a result of an administrative case.
Republic Act 7160 took effect only on January 1, 1992.
The rule is:
x x x x x
x x x x
x x x Well-settled is the principle that while the Legislature has the power to pass
retroactive laws which do not impair the obligation of contracts, or affect injuriously
vested rights, it is equally true that statutes are not to be construed as intended to have
a retroactive effect so as to affect pending proceedings, unless such intent is expressly
declared or clearly and necessarily implied from the language of the enactment. x x x
(Jones vs. Summers, 105 Cal. App. 51, 286 Pac. 1093; U.S. vs. Whyel 28 (2d) 30;
Espiritu v. Cipriano, 55 SCRA 533 [1974], cited in Nilo vs. Court of Appeals, 128
SCRA 519 [1974]. See also Puzon v. Abellera, 169 SCRA 789 [1989]; Al-Amanah
Islamic Investment Bank of the Philippines v. Civil Service Commission, et al., G.R.
No. 100599, April 8, 1992).
There is no provision in the statute which would clearly indicate that the same
operates retroactively.
It, therefore, follows that [Section] 40 (b) of the Local Government Code is not
applicable to the present case. (Underscoring supplied).
That the provision of the Code in question does not qualify the date of a candidates
removal from office and that it is couched in the past tense should not deter us from the
applying the law prospectively. The basic tenet in legal hermeneutics that laws operate
only prospectively and not retroactively provides the qualification sought by
petitioner. A statute, despite the generality in its language, must not be so construed as
to overreach acts, events or matters which transpired before its passage. Lex prospicit,
non respicit. The law looks forward, not backward.
[14]

II. Did private respondents election to office as City Councilor of Manila in the 1988,
1992 and 1995 elections wipe away and condone the administrative penalty against him,
thus restoring his eligibility for public office?
Petitioner maintains the negative. He quotes the earlier ruling of the Court
in Frivaldo v. COMELEC
[15]
to the effect that a candidates disqualification cannot be
erased by the electorate alone through the instrumentality of the ballot. Thus:
x x x (T)he qualifications prescribed for elective office cannot be erased by the
electorate alone. The will of the people as expressed through the ballot cannot cure
the vice of ineligibility, especially if they mistakenly believed, as in this
case, that the candidate was qualified. x x x
At first glance, there seems to be a prima facie semblance of merit to petitioners
argument. However, the issue of whether or not Bascos triple election to office cured
his alleged ineligibility is actually beside the point because the argument proceeds on
the assumption that he was in the first place disqualified when he ran in the three
previous elections. This assumption, of course, is untenable considering that Basco
was NOT subject to any disqualification at all under Section 40 (b) of the Local
Government Code which, as we said earlier, applies only to those removed from office
on or after January 1, 1992. In view of the irrelevance of the issue posed by petitioner,
there is no more reason for the Court to still dwell on the matter at length.
Anent Bascos alleged circumvention of the prohibition in Tordesillas against
reinstatement to any position in the national or local government, including its agencies
and instrumentalities, as well as government-owned or controlled corporations, we are
of the view that petitioners contention is baseless. Neither does petitioners argument
that the term any position is broad enough to cover without distinction both appointive
and local positions merit any consideration.
Contrary to petitioners assertion, the Tordesillas decision did not bar Basco from
running for any elective position. As can be gleaned from the decretal portion of the
said decision, the Court couched the prohibition in this wise:
x x x AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN
THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES
AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED
CORPORATIONS.
In this regard, particular attention is directed to the use of the term
reinstatement. Under the former Civil Service Decree,
[16]
the law applicable at the time
Basco, a public officer, was administratively dismissed from office, the term
reinstatement had a technical meaning, referring only to an appointive position. Thus:
ARTICLE VIII. PERSONNEL POLICIES AND STANDARDS.
SEC. 24. Personnel Actions. -
x x x x x
x x x x
(d) Reinstatement. - Any person who has been permanently APPOINTED to a
position in the career service and who has, through no delinquency or misconduct,
been separated therefrom, may be reinstated to a position in the same level for which
he is qualified.
x x x x x
x x x x.
(Emphasis and underscoring supplied).
The Rules on Personnel Actions and Policies issued by the Civil Service Commission
on November 10, 1975,
[17]
provides a clearer definition. It reads:
RULE VI. OTHER PERSONNEL ACTIONS.
SEC. 7. Reinstatement is the REAPPOINMENT of a person who was previously
separated from the service through no delinquency or misconduct on his part from a
position in the career service to which he was permanently appointed, to a position for
which he is qualified. (Emphasis and underscoring supplied).
In light of these definitions, there is, therefore, no basis for holding that Basco is
likewise barred from running for an elective position inasmuch as what is contemplated
by the prohibition inTordesillas is reinstatement to an appointive position.
III. Is private respondents proclamation as sixth winning candidate on May 17, 1995,
while the disqualification case was still pending consideration by COMELEC, void ab initio?
To support its position, petitioner argues that Basco violated the provisions of
Section 20, paragraph (i) of Republic Act No. 7166, Section 6 of Republic Act No. 6646,
as well as our ruling in the cases of Duremdes v. COMELEC,
[18]
Benito v.
COMELEC
[19]
and Aguam v. COMELEC.
[20]

We are not convinced. The provisions and cases cited are all misplaced and
quoted out of context. For the sake of clarity, let us tackle each one by one.
Section 20, paragraph (i) of Rep. Act 7166 reads:
SEC. 20. Procedure in Disposition of Contested Election Returns.-
x x x x x
x x x x
(i) The board of canvassers shall not proclaim any candidate as winner unless
authorized by the Commission after the latter has ruled on the objections brought to it
on appeal by the losing party. Any proclamation made in violation hereof shall be
void ab initio, unless the contested returns will not adversely affect the results of the
election.
x x x x x
x x x x.
The inapplicability of the abovementioned provision to the present case is very
much patent on its face considering that the same refers only to a void proclamation in
relation to contested returns and NOT to contested qualifications of a candidate.
Next, petitioner cites Section 6 of Rep. Act 6646 which states:
SEC. 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.
(Underscoring supplied).
This provision, however, does not support petitioners contention that the
COMELEC, or more properly speaking, the Manila City BOC, should have suspended
the proclamation. The use of the word may indicates that the suspension of a
proclamation is merely directory and permissive in nature and operates to confer
discretion.
[21]
What is merely made mandatory, according to the provision itself, is the
continuation of the trial and hearing of the action, inquiry or protest. Thus, in view of this
discretion granted to the COMELEC, the question of whether or not evidence of guilt is
so strong as to warrant suspension of proclamation must be left for its own
determination and the Court cannot interfere therewith and substitute its own judgment
unless such discretion has been exercised whimsically and capriciously.
[22]
The
COMELEC, as an administrative agency and a specialized constitutional body charged
with the enforcement and administration of all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and recall,
[23]
has more than
enough expertise in its field that its findings or conclusions are generally respected and
even given finality.
[24]
The COMELEC has not found any ground to suspend the
proclamation and the records likewise fail to show any so as to warrant a different
conclusion from this Court. Hence, there is no ample justification to hold that the
COMELEC gravely abused its discretion.
It is to be noted that Section 5, Rule 25 of the COMELEC Rules of
Procedure
[25]
states that:
SEC. 5. Effect of petition if unresolved before completion of canvass. - x x x (H)is
proclamation shall be suspended notwithstanding the fact that he received the winning
number of votes in such election.
However, being merely an implementing rule, the same must not override, but
instead remain consistent with and in harmony with the law it seeks to apply and
implement. Administrative rules and regulations are intended to carry out, neither to
supplant nor to modify, the law.
[26]
Thus, in Miners Association of the Philippines, Inc. v.
Factoran, Jr.,
[27]
the Court ruled that:
We reiterate the principle that the power of administrative officials to promulgate
rules and regulations in the implementation of a statute is necessarily limited only to
carrying into effect what is provided in the legislative enactment. The principle was
enunciated as early as 1908 in the case of United States v. Barrias. The scope of the
exercise of such rule-making power was clearly expressed in the case of United States
v. Tupasi Molina, decided in 1914, thus: Of course, the regulations adopted under
legislative authority by a particular department must be in harmony with the
provisions of the law, and for the sole purpose of carrying into effect its general
provisions. By such regulations, of course, the law itself can not be extended. So
long, however, as the regulations relate solely to carrying into effect the provision of
the law, they are valid.
Recently, the case of People v. Maceren gave a brief delineation of the scope of said
power of administrative officials:
Administrative regulations adopted under legislative authority by a particular
department must be in harmony with the provisions of the law, and should be for the
sole purpose of carrying into effect its general provisions. By such regulations, of
course, the law itself cannot be extended (U.S. v. Tupasi Molina, supra). An
administrative agency cannot amend an act of Congress (Santos v. Estenzo, 109 Phil.
419, 422; Teoxon vs. Members of the Board of Administrators, L-25619, June 30,
1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29,
1971, 42 SCRA 660; Deluao vs. Casteel, L-21906, August 29, 1969, 29 SCRA 350).
The rule-making power must be confined to details for regulating the mode or
proceeding to carry into effect the law as it has been enacted. The power cannot be
extended to amending or expanding the statutory requirements or to embrace matters
not covered by the statute. Rules that subvert the statute cannot be sanctioned
(University of Santo Tomas v. Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C.J.
845-46. As to invalid regulations, see Collector of Internal Revenue v. Villaflor, 69
Phil. 319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del Mar v. Phil. Veterans
Administration, L-27299, June 27, 1973, 51 SCRA 340, 349).
x x x x x
x x x x
x x x The rule or regulations should be within the scope of the statutory authority
granted by the legislature to the administrative agency (Davis, Administrative Law, p.
194, 197, cited in Victorias Milling Co., Inc. v. Social Security Commission, 114 Phil.
555, 558).
In case of discrepancy between the basic law and a rule or regulation issued to
implement said law, the basic law prevails because said rule or regulations cannot go
beyond the terms and provisions of the basic law (People v. Lim, 108 Phil. 1091).
Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule 25 of the
COMELEC Rules of Procedure seeks to implement, employed the word may, it is,
therefore, improper and highly irregular for the COMELEC to have used instead the
word shall in its rules.
Moreover, there is no reason why the Manila City BOC should not have proclaimed
Basco as the sixth winning City Councilor. Absent any determination of irregularity in
the election returns, as well as an order enjoining the canvassing and proclamation of
the winner, it is a mandatory and ministerial duty of the Board of Canvassers concerned
to count the votes based on such returns and declare the result. This has been the rule
as early as in the case of Dizon v. Provincial Board of Canvassers of Laguna
[28]
where
we clarified the nature of the functions of the Board of Canvassers, viz.:
The simple purpose and duty of the canvassing board is to ascertain and declare the
apparent result of the voting. All other questions are to be tried before the court or
other tribunal for contesting elections or in quo warranto proceedings. (9 R.C.L., p.
1110)
To the same effect is the following quotation:
x x x Where there is no question as to the genuineness of the returns or that all the
returns are before them, the powers and duties of canvassers are limited to the
mechanical or mathematical function of ascertaining and declaring the apparent result
of the election by adding or compiling the votes cast for each candidate as shown on
the face of the returns before them, and then declaring or certifying the result so
ascertained. (20 C.J., 200-201) [Underscoring supplied]
Finally, the cases of Duremdes, Benito and Aguam, supra, cited by petitioner are
all irrelevant and inapplicable to the factual circumstances at bar and serve no other
purpose than to muddle the real issue. These three cases do not in any manner refer to
void proclamations resulting from the mere pendency of a disqualification case.
In Duremdes, the proclamation was deemed void ab initio because the same was
made contrary to the provisions of the Omnibus Election Code regarding the
suspension of proclamation in cases of contested election returns.
In Benito, the proclamation of petitioner Benito was rendered ineffective due to the
Board of Canvassers violation of its ministerial duty to proclaim the candidate receiving
the highest number of votes and pave the way to succession in office. In said case, the
candidate receiving the highest number of votes for the mayoralty position died but the
Board of Canvassers, instead of proclaiming the deceased candidate winner, declared
Benito, a mere second-placer, the mayor.
Lastly, in Aguam, the nullification of the proclamation proceeded from the fact that it
was based only on advanced copies of election returns which, under the law then
prevailing, could not have been a proper and legal basis for proclamation.
With no precedent clearly in point, petitioners arguments must, therefore, be
rejected.
IV. May Romualdo S. Maranan, a seventh placer, be legally declared a winning
candidate?
Obviously, he may not be declared a winner. In the first place, Basco was a duly
qualified candidate pursuant to our disquisition above. Furthermore, he clearly received
the winning number of votes which put him in sixth place. Thus, petitioners emphatic
reference to Labo v. COMELEC,
[29]
where we laid down a possible exception to the rule
that a second placer may be declared the winning candidate, finds no application in this
case. The exception is predicated on the concurrence of two assumptions, namely: (1)
the one who obtained the highest number of votes is disqualified; and (2) the electorate
is fully aware in fact and in law of a candidates disqualification so as to bring such
awareness within the realm of notoriety but would nonetheless cast their votes in favor
of the ineligible candidate. Both assumptions, however, are absent in this
case. Petitioners allegation that Basco was well-known to have been disqualified in the
small community where he ran as a candidate is purely speculative and conjectural,
unsupported as it is by any convincing facts of record to show notoriety of his alleged
disqualification.
[30]

In sum, we see the dismissal of the petition for disqualification as not having been
attended by grave abuse of discretion. There is then no more legal impediment for
private respondents continuance in office as City Councilor for the Second District of
Manila.
WHEREFORE, the instant petition for certiorari and prohibition is hereby
DISMISSED for lack of merit. The assailed resolution of respondent Commission on
Elections (COMELEC) is SPA 95-212 dated July 31, 1996 is hereby AFFIRMED. Costs
against petitioner.
SO ORDERED.
Narvasa, CJ., Regalado, Davide, Jr., Melo, Puno, Vitug, Mendoza, Hermosisima,
Jr., Panganiban, and Torres, Jr., J., concur.
Padilla, Bellosillo, Kapunan, and Francisco, JJ., On Leave.



[1]
In re: Petition to Disqualify Candidate for Councilor, Humberto Basco, Second District, City of Manila,
in the May 8, 1995 Local Elections, Annex, A, Rollo, pp. 40-44.
[2]
Adm. Matter No. P-2363, 108 SCRA 551 (1981).
[3]
Docketed as SPC No. 92-93, Rollo, p. 183.
[4]
Rollo, p. 162.
[5]
Annex B, Rollo, p. 46. The names of the winning candidates and their corresponding votes are as
follows:
(1) NESTOR C. PONCE - 48,088
(2) MARLON M. LACSON - 41,611
(3) FLAVIANO F. CONCEPCION, JR. - 39,548
(4) FRANCISCO B. VARONA, JR. - 37,635
(5) ABELARDO C. VICEO - 37,183
(6) HUMBERTO B. BASCO - 34,358
[6]
Rollo, pp. 101-102.
[7]
Supra, note 1.
[8]
Both parties made errors in their respective pleadings as to the date of effectivity of Rep. Act 7160.
[9]
Rollo, p. 14.
[10]
Id.
[11]
G.R. Nos. 105128-30, promulgated on June 9, 1992.
[12]
254 SCRA 514 (1996).
[13]
257 SCRA 55 (1996).
[14]
R.E. AGPALO, STATUTORY CONSTRUCTION 254 (2nd ed., 1990), citing Laceste v. Santos, 56 Phil.
472. Cf. also Article 4, Civil Code.
[15]
174 SCRA 245 (1989).
[16]
Presidential Decree No. 807, issued on October 6, 1975. This law has been superseded by Subtitle A,
Title I, Book V of Executive Order No. 292, otherwise known as the Administative Code of 1987,
which took effect on November 29, 1989, or two years after its publication in the Official Gazette.
[17]
Implementing Rules of P.D. 807.
[18]
178 SCRA 746 (1989).
[19]
235 SCRA 436 (1994).
[20]
23 SCRA 883 (1968).
[21]
R.E. AGPALO, STATUTORY CONSTRUCTION 239 (2nd ed., 1990).
[22]
Provident Tree Farms, Inc. v. Batario, Jr., 231 SCRA 463 (1994).
[23]
Sec. 2, Sub-title C, Art. IX, 1987 Constitution.
[24]
Cf. Ting v. Court of Appeals, 237 SCRA 797 (1994); Sesbreno v. Ala, 208 SCRA 359 (1992); San
Miguel Corp. v. Javate, Jr., 205 SCRA 469 (1992).
[25]
Published in the Official Gazette on June 27, 1988, Vol. 84, No. 26.
[26]
Commissioner of Internal Revenue v. Court of Appeals, 240 SCRA 368 (1995).
[27]
240 SCRA 100 (1995).
[28]
52 Phil. 47.
[29]
211 SCRA 496 (1992).
[30]
Frivaldo v. COMELEC, 257 SCRA 727 (1996).









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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 83820 May 25, 1990
JOSE B. AZNAR (as Provincial Chairman of PDP Laban in Cebu), petitioner,
vs.
COMMISSION ON ELECTIONS and EMILIO MARIO RENNER OSMEA, respondents.
Rufino B. Requina for petitioner.
Angara, Abello, Concepcion, Regala & Cruz for private respondent.

PARAS, J .:
Before Us is a petition for certiorari assailing the Resolution of the Commission on Elections (COMELEC) dated June 11, 1988,
which dismissed the petition for the disqualification of private respondent Emilio "Lito" Osmea as candidate for Provincial
Governor of Cebu Province.
The facts of the case are briefly as follows:
On November 19, 1987, private respondent Emilio "Lito" Osmea filed his certificate of candidacy with the COMELEC for the
position of Provincial Governor of Cebu Province in the January 18, 1988 local elections.
On January 22, 1988, the Cebu PDP-Laban Provincial Council (Cebu-PDP Laban, for short), as represented by petitioner Jose
B. Aznar in his capacity as its incumbent Provincial Chairman, filed with the COMELEC a petition for the disqualification of private
respondent on the ground that he is allegedly not a Filipino citizen, being a citizen of the United States of America.
On January 27, 1988, petitioner filed a Formal Manifestation submitting a Certificate issued by the then Immigration and
Deportation Commissioner Miriam Defensor Santiago certifying that private respondent is an American and is a holder of Alien
Certificate of Registration (ACR) No. B-21448 and Immigrant Certificate of Residence (ICR) No. 133911, issued at Manila on
March 27 and 28, 1958, respectively. (Annex "B-1").
The petitioner also filed a Supplemental Urgent Ex-Parte Motion for the Issuance of a Temporary Restraining Order to
temporarily enjoin the Cebu Provincial Board of Canvassers from tabulating/canvassing the votes cast in favor of private
respondent and proclaiming him until the final resolution of the main petition.
Thus, on January 28, 1988, the COMELEC en banc resolved to order the Board to continue canvassing but to suspend the
proclamation.
At the hearing before the COMELEC (First Division), the petitioner presented the following exhibits tending to show that private
respondent is an American citizen: Application for Alien Registration Form No. 1 of the Bureau of Immigration signed by private
respondent dated November 21, 1979 (Exh. "B"); Alien Certificate of Registration No. 015356 in the name of private respondent
dated November 21, 1979 (Exh. "C"); Permit to Re-enter the Philippines dated November 21, 1979 (Exh. "D"); Immigration
Certificate of Clearance dated January 3, 1980 (Exh. "E"). (pp. 117-118, Rollo)
Private respondent, on the other hand, maintained that he is a Filipino citizen, alleging: that he is the legitimate child of Dr. Emilio
D. Osmea, a Filipino and son of the late President Sergio Osmea, Sr.; that he is a holder of a valid and subsisting Philippine
Passport No. 0855103 issued on March 25, 1987; that he has been continuously residing in the Philippines since birth and has
not gone out of the country for more than six months; and that he has been a registered voter in the Philippines since 1965. (pp.
107-108, Rollo)
On March 3, 1988, COMELEC (First Division) directed the Board of Canvassers to proclaim the winning candidates. Having
obtained the highest number of votes, private respondent was proclaimed the Provincial Governor of Cebu.
Thereafter, on June 11, 1988, COMELEC (First Division) dismissed the petition for disqualification for not having been timely filed
and for lack of sufficient proof that private respondent is not a Filipino citizen.
Hence, the present petition.
The petition is not meritorious.
There are two instances where a petition questioning the qualifications of a registered candidate to run for the office for which his
certificate of candidacy was filed can be raised under the Omnibus Election Code (B.P. Blg. 881), to wit:
(1) Before election, pursuant to Section 78 thereof which provides that:
'Section 78. Petition to deny due course or to 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 the notice and hearing, not later than fifteen days
before the election.
and
(2) After election, pursuant to Section 253 thereof, viz:
'Sec. 253. Petition for quo warranto. Any voter contesting the election of any Member of the Batasang
Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic
of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the
proclamation of the results of the election.
The records show that private respondent filed his certificate of candidacy on November 19, 1987 and that the petitioner filed its
petition for disqualification of said private respondent on January 22, 1988. Since the petition for disqualification was filed beyond
the twenty five-day period required in Section 78 of the Omnibus Election Code, it is clear that said petition was filed out of time.
The petition for the disqualification of private respondent cannot also be treated as a petition for quo warrantounder Section 253
of the same Code as it is unquestionably premature, considering that private respondent was proclaimed Provincial Governor of
Cebu only on March 3, 1988.
However, We deem it is a matter of public interest to ascertain the respondent's citizenship and qualification to hold the public
office to which he has been proclaimed elected. There is enough basis for us to rule directly on the merits of the case, as the
COMELEC did below.
Petitioner's contention that private respondent is not a Filipino citizen and, therefore, disqualified from running for and being
elected to the office of Provincial Governor of Cebu, is not supported by substantial and convincing evidence.
In the proceedings before the COMELEC, the petitioner failed to present direct proof that private respondent had lost his Filipino
citizenship by any of the modes provided for under C.A. No. 63. Among others, these are: (1) by naturalization in a foreign
country; (2) by express renunciation of citizenship; and (3) by subscribing to an oath of allegiance to support the Constitution or
laws of a foreign country. From the evidence, it is clear that private respondent Osmea did not lose his Philippine citizenship by
any of the three mentioned hereinabove or by any other mode of losing Philippine citizenship.
In concluding that private respondent had been naturalized as a citizen of the United States of America, the petitioner merely
relied on the fact that private respondent was issued alien certificate of registration and was given clearance and permit to re-
enter the Philippines by the Commission on Immigration and Deportation. Petitioner assumed that because of the foregoing, the
respondent is an American and "being an American", private respondent "must have taken and sworn to the Oath of Allegiance
required by the U.S. Naturalization Laws." (p. 81, Rollo)
Philippine courts are only allowed to determine who are Filipino citizens and who are not. Whether or not a person is considered
an American under the laws of the United States does not concern Us here.
By virtue of his being the son of a Filipino father, the presumption that private respondent is a Filipino remains. It was incumbent
upon the petitioner to prove that private respondent had lost his Philippine citizenship. As earlier stated, however, the petitioner
failed to positively establish this fact.
The cases of Juan Gallanosa Frivaldo v. COMELEC et al, (G.R. No. 87193, June 21, 1989) and Ramon L. Labo v. COMELEC et
al (G.R. No. 86564, August 1, 1989) are not applicable to the case at bar.
In the Frivaldo case, evidence shows that he was naturalized as a citizen of the United States in 1983 per certification from the
United States District Court, Northern District of California, as duly authenticated by Vice Consul Amado P. Cortez of the
Philippine Consulate General in San Francisco, California, U.S.A.
Frivaldo expressly admitted in his answer that he was naturalized in the United States but claimed that he was forced to embrace
American citizenship to protect himself from the persecution of the Marcos government. The Court, however, found this
suggestion of involuntariness unacceptable, pointing out that there were many other Filipinos in the United States similarly
situated as Frivaldo who did not find it necessary to abandon their status as Filipinos.
Likewise, in the case of Labo, records show that Labo was married to an Australian citizen and that he was naturalized as an
Australian citizen in 1976, per certification from the Australian Government through its Consul in the Philippines. This was later
affirmed by the Department of Foreign Affairs.
The authenticity of the above evidence was not disputed by Labo. In fact, in a number of sworn statements, Labo categorically
declared that he was a citizen of Australia.
In declaring both Frivaldo and Labo not citizens of the Philippines, therefore, disqualified from serving as Governor of the
Province of Sorsogon and Mayor of Baguio City, respectively, the Court considered the fact that by their own admissions, they
are indubitably aliens, no longer owing any allegiance to the Republic of the Philippines since they have sworn their total
allegiance to a foreign state.
In the instant case, private respondent vehemently denies having taken the oath of allegiance of the United States (p. 81, Rollo).
He is a holder of a valid and subsisting Philippine passport and has continuously participated in the electoral process in this
country since 1963 up to the present, both as a voter and as a candidate (pp. 107-108, Rollo). Thus, private respondent remains
a Filipino and the loss of his Philippine citizenship cannot be presumed.
In the learned dissent of Mr. Justice Teodoro Padilla, he stresses the fact that because Osmea obtained Certificates of Alien
Registration as an American citizen, the first in 1958 when he was 24 years old and the second in 1979, he, Osmea should be
regarded as having expressly renounced Philippine citizenship. To Our mind, this is a case of non sequitur (It does not follow).
Considering the fact that admittedly Osmea was both a Filipino and an American, the mere fact that he has a Certificate stating
he is an American does not mean that he is not still a Filipino. Thus, by way of analogy, if a person who has two brothers named
Jose and Mario states or certifies that he has a brother named Jose, this does not mean that he does not have a brother named
Mario; or if a person is enrolled as student simultaneously in two universities, namely University X and University Y, presents a
Certification that he is a student of University X, this does not necessarily mean that he is not still a student of University Y. In the
case of Osmea, the Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both
nationalities or citizenships. Indeed, there is no express renunciation here of Philippine citizenship; truth to tell, there is even no
implied renunciation of said citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be
"express", it stands to reason that there can be no such loss of Philippine 'citizenship when there is no renunciation either
"'express" or "implied".
Parenthetically, the statement in the 1987 Constitution that "dual allegiance of citizens is inimical to the national interest and shall
be dealt with by law"(Art. IV, Sec. 5) has no retroactive effect. And while it is true that even before the 1987 Constitution, Our
country had already frowned upon the concept of dual citizenship or allegiance, the fact is it actually existed. Be it noted further
that under the aforecited proviso, the effect of such dual citizenship or allegiance shall be dealt with by a future law. Said law has
not yet been enacted.
WHEREFORE, the petition for certiorari is hereby DISMISSED and the Resolution of the COMELEC is hereby AFFIRMED.
SO ORDERED.
Narvasa, Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur.
Feliciano, J., I concur. I also join in the concurring opinion of Justice Sarmiento.
Cortes, J., concur in the result.
Fernan, C.J., took no part.
Gancayco, J., is on leave.


Separate Opinions

SARMIENTO, J ., concurring:
The majority seems agreed that the private respondent has acquired American citizenship, only that he did not necessarily lose
his Filipino citizenship. The important question, however, inheres in how he obtained American citizenship. I find that there is a
dearth of facts here.
For, if the private respondent became an American by naturalization, he has lost Filipino citizenship (Com. Act No. 63; Frivaldo v.
COMELEC, G.R. No. 87193, June 21, 1989; Labo v. COMELEC, G.R. No. 86564, August 1, 1989). If he, however, became one
by the application of the principle of jus soli it is by force of circumstances rather than choice. But he does not lose his Filipino
citizenship, if he were otherwise born of Filipino parents.
In the absence of evidence, we can not presume that he had ceased to be a citizen of the Philippines, simply because he is, at
the same time. a citizen of the United States. There must be a clear showing that he lost his Filipino citizenship by any of the
means enumerated by Commonwealth Act No. 63. The fact that he had obtained an alien certificate of registration, standing
alone, does not amount to "express renunciation."

MELENCIO-HERRERA, J ., dissenting:
I join the dissent of Messrs. Justices Isagani A. Cruz and Teodoro R. Padilla.
While it may be that dual citizenship usually results from accident of birth, a choice will have to be made by the individual
concerned at some point in time in his life, involving as it does the priceless heritage of citizenship.
That election was made by private respondent when, in 1958, at the age of 24, and in 1979, at 45, he obtained Alien Certificates
of Registration. Registration as an alien is a clear and unambiguous act or declaration that one is not a citizen. If, in fact, private
respondent was merely compelled to so register because of the "uncooperativeness" of the past regime, he could have, under
the new dispensation, asked for the cancellation of those Alien Certificates and abandoned his alienage, specially before he ran
for public office in 1988.
The 1987 Constitution declares in no uncertain terms that "dual allegiance of citizens is inimical to the national interest and shall
be dealt with by law" (Article IV, Section 5). That statement is but a reaffirmation of an innate conviction shared by every Filipino.
The law referred to need not be awaited for one to consider giving up the legal convenience of dual citizenship.
Accordingly, I vote to grant the Petition.

CRUZ, J ., dissenting:
I join Mr. Justice Padilla in his dissent.
It seems to me that when a person voluntarily registers as an alien, he is in effect affirming that he is not a citizen. The terms
"citizen" and "alien" are mutually exclusive from the viewpoint of municipal law, which is what really matters in the case at bar.
Under this discipline, one is either a citizen of the local state or he is not; and the question is resolved on the basis of its own laws
alone and not those of any other state.
One of the several modes of losing Philippine citizenship under C.A. No. 63 is by "express renunciation" thereof. In the case
of Frivaldo v. Commission on Elections, G.R. No. 87193, June 23,1989, there was such renunciation when the petitioner took an
oath as a naturalized citizen of the United States in which he renounced all allegiance to all other states. In the case of Labo v.
Commission on Elections, G.R. No. 86546, August 1, 1989, the petitioner not only took a similar oath after his naturalization in
Australia but also executed other documents in which he stated that he was not a Filipino.
The fact that his naturalization was later revoked did not also invalidate his disavowal of Philippine citizenship. "Express
renunciation" is a separate mode of losing Philippine citizenship and is not necessarily dependent on "naturalization in a foreign
country," which is another and different mode.
When a person rejects and divorces his wife to enter into a second marriage, he cannot say he still loves her despite his
desertion. The undeniable fact is that he has left her for another woman to whom he has totally and solemnly transferred his
troth. It does him no credit when he protests he married a second time simply for material convenience and that his heart still
belongs to the wife he has abandoned. At worst, it would reveal his sordid and deceitful character.
By the same token, professing continued allegiance to the Philippines after renouncing it because of its meager resources, or for
other ulterior and equally base reasons, is to me a paltry form of patriotism. It is a sop to the repudiated state and a slight to the
adopted state. No matter how noble this attitude may appear to others, it is to me nothing less than plain and simple hypocrisy
that we should not condone, let alone extol.
Coming now to the case at bar, I note first of all that no naturalization is involved here as the private respondent claims to be a
citizen both of the Philippines and of the United States. The question I think we must answer is: Was there an express
renunciation of Philippine citizenship by the private respondent when he knowingly and voluntarily registered as an alien with the
Commission of Immigration and Deportation in 1958 and in 1979?
In Yu v. Commission of Immigration and Deportation, G.R. No. 83882, January 24, 1989, I made the following observations in a
separate opinion:
Regretfully, I cannot agree with the finding that the petitioner has expressly renounced his Philippine citizenship. The evidence
on this point is in my view rather meager. Express renunciation of citizenship as a made of losing citizenship under Com. Act No.
63 is an unequivocal and deliberate act with full awareness of its significance and consequences. I do not think the "commercial
documents he signed" suggest such categorical disclaimer.
That case is distinguished from the one before us now in that Yu did not ask the Philippine government to register him as an
alien. Gov. Osmea did.
It is my opinion that if the governor had confined himself to simply seeking and using an American passport, these acts could not
have by themselves alone constituted a repudiation of Philippine citizenship. The problem, though, is that he did more than enjoy
this legal convenience. What he actually did was register with the Philippine government as an alien within its own territory,
presumably so he could be insulated from the jurisdiction it exercises over its nationals. This was a voluntary act. As a citizen of
the Philippines, he was not required to register as an alien. Nevertheless, he chose to do so of his own free will. By this decision,
he categorically asked the Republic of the Philippines to treat him as an American and not a Filipino, choosing to be an alien in
this land that was willing to consider him its own.
C.A. No. 63 does not necessarily require that the express renunciation of Philippine citizenship be made in connection with the
naturalization of the erstwhile Filipino in a foreign country. Renunciation may be made independently of naturalization
proceedings. Moreover, no sacramental words are prescribed by the statute for the express renunciation of Philippine citizenship.
As long as the repudiation is categorical enough and the preference for the foreign state is unmistakable, as in the case at bar,
Philippine citizenship is lost.
The private respondent would have his cake and eat it too, but this can never be allowed where Philippine citizenship is involved.
It is a gift that must be deserved to be retained. The Philippines for all her modest resources compared to those of other states, is
a jealous and possessive mother demanding total love and loyalty from her children. It is bad enough that the love of the dual
national is shared with another state; what is worse is where he formally rejects the Philippines, and in its own territory at that,
and offers his total devotion to the other state.
I am aware of the praiseworthy efforts of Gov. Osmea to improve the province of Cebu, and also, I should add, of the
commendable record of Gov. Frivaldo and Mayor Labo in the administration of their respective jurisdictions. But that is not the
point. The point is that it is not lawful to maintain in public office any person who, although supported by the electorate, is not a
Filipino citizen. This is a relentless restriction we cannot ignore.
Regretfully, therefore, I must vote to GRANT the petition.

PADILLA, J ., dissenting:
I am constrained to dissent.
I start from the premise that the private respondent Emilio Mario Renner Osmea enjoyed at one time dual citizenship, i.e,,
Philippine and U.S. citizenships. He was born in the Philippines of a Filipino father and an American (U.S.) mother. However, his
sworn application for alien registration dated 21 November 1979 (Exh. B) filed with the Philippine immigration authorities was, in
my view, an express renunciation of his Philippine citizenship. As held in Board of Immigration Commissioners vs. Go
Callano
1
express renunciation means a renunciation that is made known distinctly and explicitly and not left to inference or
implication.
Nothing can be more distinct and explicit than when a dual citizenship holder-like the private respondent of age, and with full
legal capacity to act, voluntarily and under oath applies with the Philippine Government for registration as an alien, insofar as his
intention not to remain a Filipino citizen is concerned. And because of that distinct and explicit manifestation of desire to be
considered an alien in the Philippines, the Philippine immigration authorities issued to private respondent Alien Certificate of
Registration No. 015356 dated 21 November 1979 (Exh. C), Permit to Re- enter the Philippines No. 122018 dated 21 November
1979 (Exh. D) and Immigration Certificate of Clearance No. D-146483 dated 3 January 1980 (Exh E)
2

All the foregoing documents issued by the Philippine immigration authorities to the private respondent at his request are
predicated on the proposition that private respondent is an alien under Philippine laws. It should also be mentioned that, while
not marked as exhibit in the case at bar, private respondent was likewise issued in Cebu City Native Born Certificate of
Residence No. 115883 on 21 November 1979 (as verified from Immigration records). This document, copy of which is attached
hereto as Annex A, is again predicated on the proposition that private respondent is a duly-registered align (American) residing in
the Philippines.
Another relevant document that merits attention is the Application for Re-entry Permit executed and signed by private respondent
on 3 January 1980, again under oath, and verified from the records at the CID wherein private respondent expressly stated that
he is a U.S. national. The importance of this document cannot be underestimated For, if private respondent believed that he is a
Filipino citizen, he would not have executed said Application for Re-entry Permit, since it is the right of every Filipino citizen to
return to his country (the Philippines). The fact, therefore, that private respondent executed said sworn Application for Re-entry
Permit, copy of which is attached hereto as Annex B, is again an abundant proof that he himself, no less, believed that he was,
as he continuous to be, a resident alien (American) in the Philippines.
It will further be noted that earlier, or in 1958, private respondent had already registered as an alien with the Bureau of
Immigration under the Alien Registration Act of 1950 RA 562). Section 1 of said Act provides:
SECTION 1. Aliens residing in the Philippines shall, within thirty days after the approval of this Act, apply for
registration, in the case of those residing in the City of Manila, at the Bureau of Immigration and in the case of
those residing in other localities at the office of the city or municipal treasurers, or at any other office
designated by the President. ... .
3
(Emphasis supplied)
Accordingly, per certification of the Commissioner of Immigration and Deportation Miriam Defensor Santiago (Exh. A), issued on
26 January 1988, private respondent had been issued ACR No. B-21-448 and ICR No. 13391 on 27 and 28 March 1958
respectively. He, therefore, registered himself in the Philippines as an alien twice; first, in the year 1958, when he was 24 years
old and again in 1979, when he was 45 years old. By twice registering under oath as an alien with the Bureau of Immigration,
private respondent thereby clearly, distinctly and explicitly manifested and declared that he was an alien (and, therefore, not a
Filipino citizen) residing in the Philippines and under its laws.
At this point, and to be objectively fair to the private respondent, a clarification should be made. In his Comment on the Petition at
bar (Rollo, p. 81), it is stated by his counsel that he (private respondent) was born in 1934 hence, our mathematical conclusion
that when he first registered as an alien in 1958, he was 24 years old and in 1979 when he re-registered as an alien, he was 45
years old. However, private respondent's immigration records disclose that he was born in 1938 (not in 1934). On the assumption
that the year 1938 is the correct year of birth of private respondent (and that his alleged year of birth, 1934, as stated in his
Comment at bar is erroneous), then in 1958, when he first registered as an alien, he was 20 years old, while in 1979 when he re-
registered as an alien, he was 41 years old.
Still, his first registration as an alien (at age 20) has to be taken, in my view, as an express renunciation of his Philippine
citizenship, because (1) at that time, he was almost 21 years old the age of majority, and (2) more importantly, under the
applicable Alien Registration Act RA 562), an alien 14 years or over has to register in person (and not through his parents or
guardian). It provides:
The parent or legal guardian of an alien who is less than fourteen years of age, shall have the duty of
registering such alien: Provided, That whenever any such alien attains his fourteenth birthday in the
Philippines he shall, within fifteen days thereafter, apply in person for registration. (Sec. 1, par. 2)
I take the above provision to mean that the choice by a dual nationality holder on whether to remain a Filipino citizen or an alien
has to be made at age 14, and private respondent (although a bit late) made the notice in 1958 (at age 20) in favor of his U.S.
citizenship.
If all the foregoing acts of express renunciation of Philippine citizenship had been made or filed by private respondent elsewhere
(not with the Philippine Government), there could perhaps be some room for contention that vis-a- vis the Philippine Government,
private respondent had not renounced his Philippine citizenship. But said acts of express renunciation were filed with the
Philippine Government and done right in the Philippines. In turn the Philippine Government, through the immigration authorities,
accepted and acted on private respondent's aforesaid representations, and registered and documented him TWICE as an alien
under Philippine law.
The policy of our laws has been, and with laudable reason, to discourage dual citizenship, because this condition or status
assumes as a necessary complement thereof dual allegiance at the same time to two (2) different countries. As early as 16
September 1947, a unanimous Supreme Court, speaking thru Mr. Justice Sabino Padilla in the celebrated case of Tan Chong vs.
Secretary of Labor, rejected the principle of jus soli as determinative of Philippine citizenship, for the following reason, among
others:
... . Citizenship, the main integrate element of which is allegiance, must not be taken lightly. Dual allegiance
must be discouraged and prevented. But the application of the principle jus soli to persons born in this country
of alien parentage would encourage dual allegiance which in the long run would be detrimental to both
countries of which such persons might claim to be citizens.
4

This policy found later expression in the 1987 Constitution which now provides
Sec. 5. Dual allegiance of citizen is inimical to the national interest and shall be dealt with by law. (Article
IV)
Dual citizenship, in my considered opinion, must be eschewed. While having the "best of two (2) words" maybe the result of birth
or other factors accidentally brought about, the "dual citizen" has to make a choice at one time or another. Having two (2)
citizenships is, as I see it, similar in many ways to having two (2) legal spouses, when as a matter of principle and sound public
policy, fealty to only one (1) spouse is both compelling and certainly desirable.
Gordon and Rosenfield in their book on Immigration Law and Procedure state:
Dual nationality is universally recognized as an undesirable phenomenon. It inevitably results in questionable
loyalties and leads to international conflicts. Dual nationality also makes possible the use of citizenship as a
badge of convenience rather than of undivided loyalty. And it impairs the singleness of commitment which is
the hallmark of citizenship and allegiance. A person should have a right to choose his own nationality, and this
choice should be honored by all countries. However, he should not be entitled to claim more than one
nationality.
5
(Emphasis supplied)
Private respondent made a deliberate and decisive choice when he asked the Philippine Government which, like many other
countries, considers dual allegiance as against national or public interest to register him at least twice (and, therefore,
unmistakably) as an alien in this country. That choice pro tanto was a renunciation of his Philippine citizenship. The choice must
be respected as a conscious and knowledgeable act of a discerning, distinguished and respected person who must be presumed
to have known the full import of his acts.
Finally, the last thing that should be said against the Court is that it is inconsistent in its rulings. In the light of its recent decision in
G.R. No. 86565 (Ramon L. Labo, Jr. vs. The Commission on Elections, et al.) I see no valid justification for holding Mr. Labo an
alien upper Philippine law while holding private respondent herein a Filipino citizen. For, as the majority states: "In fact, in a
number of sworn statements, Labo categorically declared that he was a citizen of Australia" (p. 7, Decision). And is exactly what
private respondent did. In a number of sworn statements, he declared that he was a citizen of the United States.
To Mr. Labo, the Court said, "so be it, you are an Australian," yet to the private respondent, despite such sworn statements that
he is a U.S. citizen, the Court says, "never mind those sworn statements, you are still a Filipino." Sauce for the goose, as the
saying goes, is sauce for the gander. The doctrinal basis of the Court's decisions should be built on the merits, not on distinctions
that really make no difference.
ACCORDINGLY, I vote to GRANT the petition and to declare the private respondent not a Filipino citizen by his own acts of
express renunciation of such citizenship.

GUTIERREZ, JR., J ., dissenting:
My stand in the cases of Willie Yu vs. Miriam Defensor Santiago, et al. (G.R. No, 83882, January 24, 1989) andRamon Labo, Jr,
v. Commission on Elections (G.R. 86564, August 2, 1989) is clear. I regret, however, that I cannot participate in this case
because one of the principal counsel is my relative by affinity, within the fourth civil degree.



Separate Opinions

SARMIENTO, J ., concurring:
The majority seems agreed that the private respondent has acquired American citizenship, offly that he did not necessarily lose
his Filipino citizenship. The important question, however, inheres in how he obtained American citizenship. I find that there is a
dearth of facts here.
For, if the private respondent became an American by naturalization, he has lost Filipino citizenship (Com. Act No. 63; Frivaldo v.
COMELEC, G.R. No. 87193, June 21, 1989; Labo v. COMELEC, G.R. No. 86564, August 1, 1989). If he, however, became one
by the application of the principle of jus soli it is by force of circumstances rather than choice. But he does not lose his Filipino
citizenship, if he were otherwise born of Filipino parents.
In the absence of evidence, we can not presume that he had ceased to be a citizen of the Philippines, simply because he is, at
the same time. a citizen of the United States. There must be a clear showing that he lost his Filipino citizenship by any of the
means enumerated by Commonwealth Act No. 63. The fact that he had obtained an alien certificate of registration, standing
alone, does not amount to "express renunciation."

MELENCIO-HERRERA, J ., dissenting:
I join the dissent of Messrs. Justices Isagani A. Cruz and Teodoro R. Padilla.
While it may be that dual citizenship usually results from accident of birth, a choice will have to be made by the individual
concerned at some point in time in his life, involving as it does the priceless heritage of citizenship.
That election was made by private respondent when, in 1958, at the age of 24, and in 1979, at 45, he obtained Alien Certificates
of Registration. Registration as an alien is a clear and unambiguous act or declaration that one is not a citizen. If, in fact, private
respondent was merely compelled to so register because of the "uncooperativeness" of the past regime, he could have, under
the new dispensation, asked for the cancellation of those Alien Certificates and abandoned his alienage, specially before he ran
for public office in 1988.
The 1987 Constitution declares in no uncertain terms that "dual allegiance of citizens is inimical to the national interest and shall
be dealt with by law" (Article IV, Section 5). That statement is but a reaffirmation of an innate conviction shared by every Filipino.
The law referred to need not be awaited for one to consider giving up the legal convenience of dual citizenship.
Accordingly, I vote to grant the Petition.

CRUZ, J ., dissenting:
I join Mr. Justice Padilla in his dissent.
It seems to me that when a person voluntarily registers as an alien, he is in effect affirming that he is not a citizen. The terms
"citizen" and "alien" are mutually exclusive from the viewpoint of municipal law, which is what really matters in the case at bar.
Under this discipline, one is either a citizen of the local state or he is not; and the question is resolved on the basis of its own laws
alone and not those of any other state.
One of the several modes of losing Philippine citizenship under C.A. No. 63 is by "express renunciation" thereof. In the case
of Frivaldo v. Commission on Elections, G.R. No. 87193, June 23,1989, there was such renunciation when the petitioner took an
oath as a naturalized citizen of the United States in which he renounced all allegiance to all other states. In the case of Labo v.
Commission on Elections, G.R. No. 86546, August 1, 1989, the petitioner not only took a similar oath after his naturalization in
Australia but also executed other documents in which he stated that he was not a Filipino.
The fact that his naturalization was later revoked did not also invalidate his disavowal of Philippine citizenship. "Express
renunciation" is a separate mode of losing Philippine citizenship and is not necessarily dependent on "naturalization in a foreign
country," which is another and different mode.
When a person rejects and divorces his wife to enter into a second marriage, he cannot say he still loves her despite his
desertion. The undeniable fact is that he has left her for another woman to whom he has totally and solemnly transferred his
troth. It does him no credit when he protests he married a second time simply for material convenience and that his heart still
belongs to the wife he has abandoned. At worst, it would reveal his sordid and deceitful character.
By the same token, professing continued allegiance to the Philippines after renouncing it because of its meager resources, or for
other ulterior and equally base reasons, is to me a paltry form of patriotism. It is a sop to the repudiated state and a slight to the
adopted state. No matter how noble this attitude may appear to others, it is to me nothing less than plain and simple hypocrisy
that we should not condone, let alone extol.
Coming now to the case at bar, I note first of all that no naturalization is involved here as the private respondent claims to be a
citizen both of the Philippines and of the United States. The question I think we must answer is: Was there an express
renunciation of Philippine citizenship by the private respondent when he knowingly and voluntarily registered as an alien with the
Commission of Immigration and Deportation in 1958 and in 1979?
In Yu v. Commission of Immigration and Deportation, G.R. No. 83882, January 24, 1989, I made the following observations in a
separate opinion:
Regretfully, I cannot agree with the finding that the petitioner has expressly renounced his Philippine citizenship. The evidence
on this point is in my view rather meager. Express renunciation of citizenship as a made of losing citizenship under Com. Act No.
63 is an unequivocal and deliberate act with full awareness of its significance and consequences. I do not think the "commercial
documents he signed" suggest such categorical disclaimer.
That case is distinguished from the one before us now in that Yu did not ask the Philippine government to register him as an
alien. Gov. Osmea did.
It is my opinion that if the governor had confined himself to simply seeking and using an American passport, these acts could not
have by themselves alone constituted a repudiation of Philippine citizenship. The problem, though, is that he did more than enjoy
this legal convenience. What he actually did was register with the Philippine government as an alien within its own territory,
presumably so he could be insulated from the jurisdiction it exercises over its nationals. This was a voluntary act. As a citizen of
the Philippines, he was not required to register as an alien. Nevertheless, he chose to do so of his own free will. By this decision,
he categorically asked the Republic of the Philippines to treat him as an American and not a Filipino, choosing to be an alien in
this land that was willing to consider him its own.
C.A. No. 63 does not necessarily require that the express renunciation of Philippine citizenship be made in connection with the
naturalization of the erstwhile Filipino in a foreign country. Renunciation may be made independently of naturalization
proceedings. Moreover, no sacramental words are prescribed by the statute for the express renunciation of Philippine citizenship.
As long as the repudiation is categorical enough and the preference for the foreign state is unmistakable, as in the case at bar,
Philippine citizenship is lost.
The private respondent would have his cake and eat it too, but this can never be allowed where Philippine citizenship is involved.
It is a gift that must be deserved to be retained. The Philippines for all her modest resources compared to those of other states, is
a jealous and possessive mother demanding total love and loyalty from her children. It is bad enough that the love of the dual
national is shared with another state; what is worse is where he formally rejects the Philippines, and in its own territory at that,
and offers his total devotion to the other state.
I am aware of the praiseworthy efforts of Gov. Osmea to improve the province of Cebu, and also, I should add, of the
commendable record of Gov. Frivaldo and Mayor Labo in the administration of their respective jurisdictions. But that is not the
point. The point is that it is not lawful to maintain in public office any person who, although supported by the electorate, is not a
Filipino citizen. This is a relentless restriction we cannot ignore.
Regretfully, therefore, I must vote to GRANT the petition.

PADILLA, J ., dissenting:
I am constrained to dissent.
I start from the premise that the private respondent Emilio Mario Renner Osmea enjoyed at one time dual citizenship, i.e,,
Philippine and U.S. citizenships. He was born in the Philippines of a Filipino father and an American (U.S.) mother. However, his
sworn application for alien registration dated 21 November 1979 (Exh. B) filed with the Philippine immigration authorities was, in
my view, an express renunciation of his Philippine citizenship. As held in Board of Immigration Commissioners vs. Go
Callano
1
express renunciation means a renunciation that is made known distinctly and explicitly and not left to inference or
implication.
Nothing can be more distinct and explicit than when a dual citizenship holder-like the private respondent of age, and with full
legal capacity to act, voluntarily and under oath applies with the Philippine Government for registration as an alien, insofar as his
intention not to remain a Filipino citizen is concerned. And because of that distinct and explicit manifestation of desire to be
considered an alien in the Philippines, the Philippine immigration authorities issued to private respondent Alien Certificate of
Registration No. 015356 dated 21 November 1979 (Exh. C), Permit to Re- enter the Philippines No. 122018 dated 21 November
1979 (Exh. D) and Immigration Certificate of Clearance No. D-146483 dated 3 January 1980 (Exh E)
2

All the foregoing documents issued by the Philippine immigration authorities to the private respondent at his request are
predicated on the proposition that private respondent is an alien under Philippine laws. It should also be mentioned that, while
not marked as exhibit in the case at bar, private respondent was likewise issued in Cebu City Native Born Certificate of
Residence No. 115883 on 21 November 1979 (as verified from Immigration records). This document, copy of which is attached
hereto as Annex A, is again predicated on the proposition that private respondent is a duly-registered alien (American) residing in
the Philippines.
Another relevant document that merits attention is the Application for Re-entry Permit executed and signed by private respondent
on 3 January 1980, again under oath, and verified from the records at the CID wherein private respondent expressly stated that
he is a U.S. national. The importance of this document cannot be underestimated. For, if private respondent believed that he is a
Filipino citizen, he would not have executed said Application for Re-entry Permit, since it is the right of every Filipino citizen to
return to his country (the Philippines). The fact, therefore, that private respondent executed said sworn Application for Re-entry
Permit, copy of which is attached hereto as Annex B, is again an abundant proof that he himself, no less, believed that he was,
as he continuous to be, a resident alien (American) in the Philippines.
It will further be noted that earlier, or in 1958, private respondent had already registered as an alien with the Bureau of
Immigration under the Alien Registration Act of 1950 RA 562). Section 1 of said Act provides:
SECTION 1. Aliens residing in the Philippines shall, within thirty days after the approval of this Act, apply for
registration, in the case of those residing in the City of Manila, at the Bureau of Immigration and in the case of
those residing in other localities at the office of the city or municipal treasurers, or at any other office
designated by the President. ... .
3
(Emphasis supplied)
Accordingly, per certification of the Commissioner of Immigration and Deportation Miriam Defensor Santiago (Exh. A), issued on
26 January 1988, private respondent had been issued ACR No. B-21-448 and ICR No. 13391 on 27 and 28 March 1958
respectively. He, therefore, registered himself in the Philippines as an alien twice; first, in the year 1958, when he was 24 years
old and again in 1979, when he was 45 years old. By twice registering under oath as an alien with the Bureau of Immigration,
private respondent thereby clearly, distinctly and explicitly manifested and declared that he was an alien (and, therefore, not a
Filipino citizen) residing in the Philippines and under its laws.
At this point, and to be objectively fair to the private respondent, a clarification should be made. In his Comment on the Petition at
bar (Rollo, p. 81), it is stated by his counsel that he (private respondent) was born in 1934-hence, our mathematical conclusion
that when he first registered as an alien in 1958, he was 24 years old and in 1979 when he re-registered as an alien, he was 45
years old. However, private respondent's immigration records disclose that he was born in 1938 (not in 1934). On the assumption
that the year 1938 is the correct year of birth of private respondent (and that his alleged year of birth, 1934, as stated in his
Comment at bar is erroneous), then in 1958, when he first registered as an alien, he was 20 years old, while in 1979 when he re-
registered as an alien, he was 41 years old.
Still, his first registration as an alien (at age 20) has to be taken, in my view, as an express renunciation of his Philippine
citizenship, because (1) at that time, he was almost 21 years old the age of majority, and (2) more importantly, under the
applicable Alien Registration Act RA 562), an alien 14 years or over has to register in person (and not through his parents or
guardian). It provides:
The parent or legal guardian of an alien who is less than fourteen years of age, shall have the duty of
registering such alien: Provided, That whenever any such alien attains his fourteenth birthday in the
Philippines he shall, within fifteen days thereafter, apply in person for registration. (Sec. 1, par. 2)
I take the above provision to mean that the choice by a dual nationality holder on whether to remain a Filipino citizen or an alien
has to be made at age 14, and private respondent (although a bit late) made the notice in 1958 (at age 20) in favor of his U.S.
citizenship.
If all the foregoing acts of express renunciation of Philippine citizenship had been made or filed by private respondent elsewhere
(not with the Philippine Government), there could perhaps be some room for contention that vis-a- vis the Philippine Government,
private respondent had not renounced his Philippine citizenship. But said acts of express renunciation were filed with the
Philippine Government and done right in the Philippines. In turn the Philippine Government, through the immigration authorities,
accepted and acted on private respondent's aforesaid representations, and registered and documented him TWICE as an alien
under Philippine law.
The policy of our laws has been, and with laudable reason, to discourage dual citizenship, because this condition or status
assumes as a necessary complement thereof dual allegiance at the same time to two (2) different countries. As early as 16
September 1947, a unanimous Supreme Court, speaking thru Mr. Justice Sabino Padilla in the celebrated case of Tan Chong vs.
Secretary of Labor, rejected the principle of jus soli as determinative of Philippine citizenship, for the following reason, among
others:
... . Citizenship, the main integrate element of which is allegiance, must not be taken lightly. Dual allegiance
must be discouraged and prevented. But the application of the principle jus soli to persons born in this country
of alien parentage would encourage dual allegiance which in the long run would be detrimental to both
countries of which such persons might claim to be citizens.
4

This policy found later expression in the 1987 Constitution which now provides-
Sec. 5. Dual allegiance of citizen is inimical to the national interest and shall be dealt with by law. (Article
IV)
Dual citizenship, in my considered opinion, must be eschewed. While having the "best of two (2) words" maybe the result of birth
or other factors accidentally brought about, the "dual citizen" has to make a choice at one time or another. Having two (2)
citizenships is, as I see it, similar in many ways to having two (2) legal spouses, when as a matter of principle and sound public
policy, fealty to only one (1) spouse is both compelling and certainly desirable.
Gordon and Rosenfield in their book on Immigration Law and Procedure state:
Dual nationality is universally recognized as an undesirable phenomenon. It inevitably results in questionable
loyalties and leads to international conflicts. Dual nationality also makes possible the use of citizenship as a
badge of convenience rather than of undivided loyalty. And it impairs the singleness of commitment which is
the hallmark of citizenship and allegiance. A person should have a right to choose his own nationality, and this
choice should be honored by all countries. However, he should not be entitled to claim more than one
nationality.
5
(Emphasis supplied)
Private respondent made a deliberate and decisive choice when he asked the Philippine Government which, like many other
countries, considers dual allegiance as against national or public interest to register him at least twice (and, therefore,
unmistakably) as an alien in this country. That choice pro tanto was a renunciation of his Philippine citizenship. The choice must
be respected as a conscious and knowledgeable act of a discerning, distinguished and respected person who must be presumed
to have known the full import of his acts.
Finally, the last thing that should be said against the Court is that it is inconsistent in its rulings. In the light of its recent decision in
G.R. No. 86565 (Ramon L. Labo, Jr. vs. The Commission on Elections, et al.), I see no valid justification for holding Mr. Labo an
alien upper Philippine law while holding private respondent herein a Filipino citizen. For, as the majority states: "In fact, in a
number of sworn statements, Labo categorically declared that he was a citizen of Australia" (p. 7, Decision). And is exactly what
private respondent did. In a number of sworn statements, he declared that he was a citizen of the United States.
To Mr. Labo, the Court said, "so be it, you are an Australian," yet to the private respondent, despite such sworn statements that
he is a U.S. citizen, the Court says, "never mind those sworn statements, you are still a Filipino." Sauce for the goose, as the
saying goes, is sauce for the gander The doctrinal basis of the Court's decisions should be built on the merits, not on distinctions
that really make no difference.
ACCORDINGLY, I vote to GRANT the petition and to declare the private respondent not a Filipino citizen by his own acts of
express renunciation of such citizenship.

GUTIERREZ, JR., J ., separate opinion:
My stand in the cases of Willie Yu vs. Miriam Defensor Santiago, et al. (G.R. No, 83882, January 24, 1989) andRamon Labo, Jr,
v. Commission on Elections (G.R. 86564, August 2, 1989) is clear. I regret, however, that I cannot participate in this case
because one of the principal counsel is my relative by affinity, within the fourth civil degree.


Separate Opinions
SARMIENTO, J ., concurring:
The majority seems agreed that the private respondent has acquired American citizenship, offly that he did not necessarily lose
his Filipino citizenship. The important question, however, inheres in how he obtained American citizenship. I find that there is a
dearth of facts here.
For, if the private respondent became an American by naturalization, he has lost Filipino citizenship (Com. Act No. 63; Frivaldo v.
COMELEC, G.R. No. 87193, June 21, 1989; Labo v. COMELEC, G.R. No. 86564, August 1, 1989). If he, however, became one
by the application of the principle of jus soli it is by force of circumstances rather than choice. But he does not lose his Filipino
citizenship, if he were otherwise born of Filipino parents.
In the absence of evidence, we can not presume that he had ceased to be a citizen of the Philippines, simply because he is, at
the same time. a citizen of the United States. There must be a clear showing that he lost his Filipino citizenship by any of the
means enumerated by Commonwealth Act No. 63. The fact that he had obtained an alien certificate of registration, standing
alone, does not amount to "express renunciation."

MELENCIO-HERRERA, J ., dissenting:
I join the dissent of Messrs. Justices Isagani A. Cruz and Teodoro R. Padilla.
While it may be that dual citizenship usually results from accident of birth, a choice will have to be made by the individual
concerned at some point in time in his life, involving as it does the priceless heritage of citizenship.
That election was made by private respondent when, in 1958, at the age of 24, and in 1979, at 45, he obtained Alien Certificates
of Registration. Registration as an alien is a clear and unambiguous act or declaration that one is not a citizen. If, in fact, private
respondent was merely compelled to so register because of the "uncooperativeness" of the past regime, he could have, under
the new dispensation, asked for the cancellation of those Alien Certificates and abandoned his alienage, specially before he ran
for public office in 1988.
The 1987 Constitution declares in no uncertain terms that "dual allegiance of citizens is inimical to the national interest and shall
be dealt with by law" (Article IV, Section 5). That statement is but a reaffirmation of an innate conviction shared by every Filipino.
The law referred to need not be awaited for one to consider giving up the legal convenience of dual citizenship.
Accordingly, I vote to grant the Petition.

CRUZ, J ., dissenting:
I join Mr. Justice Padilla in his dissent.
It seems to me that when a person voluntarily registers as an alien, he is in effect affirming that he is not a citizen. The terms
"citizen" and "alien" are mutually exclusive from the viewpoint of municipal law, which is what really matters in the case at bar.
Under this discipline, one is either a citizen of the local state or he is not; and the question is resolved on the basis of its own laws
alone and not those of any other state.
One of the several modes of losing Philippine citizenship under C.A. No. 63 is by "express renunciation" thereof. In the case of
Frivaldo v. Commission on Elections, G.R. No. 87193, June 23,1989, there was such renunciation when the petitioner took an
oath as a naturalized citizen of the United States in which he renounced all allegiance to all other states. In the case of Labo v.
Commission on Elections, G.R. No. 86546, August 1, 1989, the petitioner not only took a similar oath after his naturalization in
Australia but also executed other documents in which he stated that he was not a Filipino.
The fact that his naturalization was later revoked did not also invalidate his disavowal of Philippine citizenship. "Express
renunciation" is a separate mode of losing Philippine citizenship and is not necessarily dependent on "naturalization in a foreign
country," which is another and different mode.
When a person rejects and divorces his wife to enter into a second marriage, he cannot say he still loves her despite his
desertion. The undeniable fact is that he has left her for another woman to whom he has totally and solemnly transferred his troth
It does him no credit when he protests he married a second time simply for material convenience and that his heart still belongs
to the wife he has abandoned. At worst, it would reveal his sordid and deceitful character.
By the same token, professing continued allegiance to the Philippines after renouncing it because of its meager resources, or for
other ulterior and equally base reasons, is to me a paltry form of patriotism. It is a sop to the repudiated state and a slight to the
adopted state. No matter how noble this attitude may appear to others, it is to me nothing less than plain and simple hypocrisy
that we should not condone, let alone extol.
Coming now to the case at bar, I note first of all that no naturalization is involved here as the private respondent claims to be a
citizen both of the Philippines and of the United States. The question I think we must answer is: Was there an express
renunciation of Philippine citizenship by the private respondent when he knowingly and voluntarily registered as an alien with the
Commission of Immigration and Deportation in 1958 and in 1979?
In Yu v. Commission of Immigration and Deportation, G.R. No. 83882, January 24, 1989, I made the following observations in a
separate opinion:
Regretfully, I cannot agree with the finding that the petitioner has expressly renounced his Philippine citizenship. The evidence
on this point is in my view rather meager. Express renunciation of citizenship as a made of losing citizenship under Com. Act No.
63 is an unequivocal and deliberate act with full awareness of its significance and consequences. I do not think the "commercial
documents he signed" suggest such categorical disclaimer.
That case is distinguished from the one before us now in that Yu did not ask the Philippine government to register him as an
alien. Gov. Osmea did.
It is my opinion that if the governor had confined himself to simply seeking and using an American passport, these acts could not
have by themselves alone constituted a repudiation of Philippine citizenship. The problem, though, is that he did more than enjoy
this legal convenience. What he actually did was register with the Philippine government as an alien within its own territory,
presumably so he could be insulated from the jurisdiction it exercises over its nationals. This was a voluntary act. As a citizen of
the Philippines, he was not required to register as an alien. Nevertheless, he chose to do so of his own free will. By this decision,
he categorically asked the Republic of the Philippines to treat him as an American and not a Filipino, choosing to be an alien in
this land that was willing to consider him its own.
C.A. No. 63 does not necessarily require that the express renunciation of Philippine citizenship be made in connection with the
naturalization of the erstwhile Filipino in a foreign country. Renunciation may be made independently of naturalization
proceedings. Moreover, no sacramental words are prescribed by the statute for the express renunciation of Philippine citizenship.
As long as the repudiation is categorical enough and the preference for the foreign state is unmistakable, as in the case at bar,
Philippine citizenship is lost.
The private respondent would have his cake and eat it too, but this can never be allowed where Philippine citizenship is involved.
It is a gift that must be deserved to be retained. The Philippines for all her modest resources compared to those of other states, is
a jealous and possessive mother demanding total love and loyalty from her children. It is bad enough that the love of the dual
national is shared with another state; what is worse is where he formally rejects the Philippines, and in its own territory at that,
and offers his total devotion to the other state.
I am aware of the praiseworthy efforts of Gov. Osmea to improve the province of Cebu, and also, I should add, of the
commendable record of Gov. Frivaldo and Mayor Labo in the administration of their respective jurisdictions. But that is not the
point. The point is that it is not lawful to maintain in public office any person who, although supported by the electorate, is not a
Filipino citizen. This is a relentless restriction we cannot ignore.
Regretfully, therefore, I must vote to GRANT the petition.

PADILLA, J ., dissenting:
I am constrained to dissent.
I start from the premise that the private respondent Emilio Mario Renner Osmea enjoyed at one time dual citizenship, i.e,,
Philippine and U.S. citizenships. He was born in the Philippines of a Filipino father and an American (U.S.) mother. However, his
sworn application for alien registration dated 21 November 1979 (Exh. B) filed with the Philippine immigration authorities was, in
my view, an express renunciation of his Philippine citizenship. As held in Board of Immigration Commissioners vs. Go
Callano
1
express renunciation means a renunciation that is made known distinctly and explicitly and not left to inference or
implication.
Nothing can be more distinct and explicit than when a dual citizenship holder-like the private respondent of age, and with full
legal capacity to act, voluntarily and under oath applies with the Philippine Government for registration as an alien, insofar as his
intention not to remain a Filipino citizen is concerned. And because of that distinct and explicit manifestation of desire to be
considered an alien in the Philippines, the Philippine immigration authorities issued to private respondent Alien Certificate of
Registration No. 015356 dated 21 November 1979 (Exh. C), Permit to Re- enter the Philippines No. 122018 dated 21 November
1979 (Exh. D) and Immigration Certificate of Clearance No. D-146483 dated 3 January 1980 (Exh E)
2

All the foregoing documents issued by the Philippine immigration authorities to the private respondent at his request are
predicated on the proposition that private respondent is an alien under Philippine laws. It should also be mentioned that, while
not marked as exhibit in the case at bar, private respondent was likewise issued in Cebu City Native Born Certificate of
Residence No. 115883 on 21 November 1979 (as verified from Immigration records). This document, copy of which is attached
hereto as Annex A, is again predicated on the proposition that private respondent is a duly-registered align (American) residing in
the Philippines.
Another relevant document that merits attention is the Application for Re-entry Permit executed and signed by private respondent
on 3 January 1980, again under oath, and verified from the records at the CID wherein private respondent expressly stated that
he is a U.S. national. The importance of this document cannot be underestimated For, if private respondent believed that he is a
Filipino citizen, he would not have executed said Application for Re-entry Permit, since it is the right of every Filipino citizen to
return to his country (the Philippines). The fact, therefore, that private respondent executed said sworn Application for Re-entry
Permit, copy of which is attached hereto as Annex B, is again an abundant proof that he himself, no less, believed that he was,
as he continuous to be, a resident alien (American) in the Philippines.
It will further be noted that earlier, or in 1958, private respondent had already registered as an alien with the Bureau of
Immigration under the Alien Registration Act of 1950 RA 562). Section 1 of said Act provides:
SECTION 1. Aliens residing in the Philippines shall, within thirty days after the approval of this Act, apply for
registration, in the case of those residing in the City of Manila, at the Bureau of Immigration and in the case of
those residing in other localities at the office of the city or municipal treasurers, or at any other office
designated by the President. ... .
3
(Emphasis supplied)
Accordingly, per certification of the Commissioner of Immigration and Deportation Miriam Defensor Santiago (Exh. A), issued on
26 January 1988, private respondent had been issued ACR No. B-21-448 and ICR No. 13391 on 27 and 28 March 1958
respectively. He, therefore, registered himself in the Philippines as an alien twice; first, in the year 1958, when he was 24 years
old and again in 1979, when he was 45 years old. By twice registering under oath as an alien with the Bureau of Immigration,
private respondent thereby clearly, distinctly and explicitly manifested and declared that he was an alien (and, therefore, not a
Filipino citizen) residing in the Philippines and under its laws.
At this point, and to be objectively fair to the private respondent, a clarification should be made. In his Comment on the Petition at
bar (Rollo, p. 81), it is stated by his counsel that he (private respondent) was born in 1934-hence, our mathematical conclusion
that when he first registered as an alien in 1958, he was 24 years old and in 1979 when he re-registered as an alien, he was 45
years old. However, private respondent's immigration records disclose that he was born in 1938 (not in 1934). On the assumption
that the year 1938 is the correct year of birth of private respondent (and that his alleged year of birth, 1934, as stated in his
Comment at bar is erroneous), then in 1958, when he first registered as an alien, he was 20 years old, while in 1979 when he re-
registered as an alien, he was 41 years old.
Still, his first registration as an alien (at age 20) has to be taken, in my view, as an express renunciation of his Philippine
citizenship, because (1) at that time, he was almost 21 years old the age of majority, and (2) more importantly, under the
applicable Alien Registration Act RA 562), an alien 14 years or over has to register in person (and not through his parents or
guardian). It provides:
The parent or legal guardian of an alien who is less than fourteen years of age, shall have the duty of
registering such alien: Provided, That whenever any such alien attains his fourteenth birthday in the
Philippines he shall, within fifteen days thereafter, apply in person for registration. (Sec. 1, par. 2)
I take the above provision to mean that the choice by a dual nationality holder on whether to remain a Filipino citizen or an alien
has to be made at age 14, and private respondent (although a bit late) made the notice in 1958 (at age 20) in favor of his U.S.
citizenship.
If all the foregoing acts of express renunciation of Philippine citizenship had been made or filed by private respondent elsewhere
(not with the Philippine Government), there could perhaps be some room for contention that vis-a- vis the Philippine Government,
private respondent had not renounced his Philippine citizenship. But said acts of express renunciation were filed with the
Philippine Government and done right in the Philippines. In turn the Philippine Government, through the immigration authorities,
accepted and acted on private respondent's aforesaid representations, and registered and documented him TWICE as an alien
under Philippine law.
The policy of our laws has been, and with laudable reason, to discourage dual citizenship, because this condition or status
assumes as a necessary complement thereof dual allegiance at the same time to two (2) different countries. As early as 16
September 1947, a unanimous Supreme Court, speaking thru Mr. Justice Sabino Padilla in the celebrated case of Tan Chong vs.
Secretary of Labor, rejected the principle of jus soli as determinative of Philippine citizenship, for the following reason, among
others:
... . Citizenship, the main integrate element of which is allegiance, must not be taken lightly. Dual allegiance
must be discouraged and prevented. But the application of the principle jus soli to persons born in this country
of alien parentage would encourage dual allegiance which in the long run would be detrimental to both
countries of which such persons might claim to be citizens.
4

This policy found later expression in the 1987 Constitution which now provides-
Sec. 5. Dual allegiance of citizen is inimical to the national interest and shall be dealt with by law. (Article
IV)
Dual citizenship, in my considered opinion, must be eschewed. While having the "best of two (2) words" maybe the result of birth
or other factors accidentally brought about, the "dual citizen" has to make a choice at one time or another. Having two (2)
citizenships is, as I see it, similar in many ways to having two (2) legal spouses, when as a matter of principle and sound public
policy, fealty to only one (1) spouse is both compelling and certainly desirable.
Gordon and Rosenfield in their book on Immigration Law and Procedure state:
Dual nationality is universally recognized as an undesirable phenomenon. It inevitably results in questionable
loyalties and leads to international conflicts. Dual nationality also makes possible the use of citizenship as a
badge of convenience rather than of undivided loyalty. And it impairs the singleness of commitment which is
the hallmark of citizenship and allegiance. A person should have a right to choose his own nationality, and this
choice should be honored by all countries. However, he should not be entitled to claim more than one
nationality.
5
(Emphasis supplied)
Private respondent made a deliberate and decisive choice when he asked the Philippine Government which, like many other
countries, considers dual allegiance as against national or public interest to register him at least twice (and, therefore,
unmistakably) as an alien in this country. That choice pro tanto was a renunciation of his Philippine citizenship. The choice must
be respected as a conscious and knowledgeable act of a discerning, distinguished and respected person who must be presumed
to have known the full import of his acts.
Finally, the last thing that should be said against the Court is that it is inconsistent in its rulings. In the light of its recent decision in
G.R. No. 86565 (Ramon L. Labo, Jr. vs. The Commission on Elections, et al., I see no valid justification for holding Mr. Labo an
alien upper Ph. Philippine law while holding private respondent herein a Filipino citizen. For, as the majority states: "In fact,, in a
number of sworn statements, Labo categorically declared that he was a citizen of Australia"(p. 7, Decision). And is exactly what
private respondent did. In a number of sworn statements, he declared that he was a citizen of the United States.
To Mr. Labo, the Court said, "so be it, you are an Australian," yet to the private respondent, despite such sworn statements that
he is a U.S. citizen, the Court says, "never mind those sworn statements, you are still a Filipino." Sauce for the goose, as the
saying goes, is sauce for the gender The doctrinal basis of the Court's decisions should be built on the merits, not on distinctions
that really make no difference.
ACCORDINGLY, I vote to GRANT the petition and to declare the private respondent not a Filipino citizen by his own acts of
express renunciation of such citizenship.

GUTIERREZ, JR., J ., separate opinion:
My stand in the cases of Willie Yu vs. Miriam Defensor Santiago, et al. (G.R. No, 83882, January 24, 1989) andRamon Labo, Jr,
v. Commission on Elections (G.R. 86564, August 2, 1989) is clear. I regret, however, that I cannot participate in this case
because one of the principal counsel is my relative by affinity, within the fourth civil degree.
Footnotes
1 G.R. No. L-24530, October 31, 1968, 25 SCRA 890.
2 Rollo, pp. 117-118.
3 46 OG 11, 5367.
4 79 Phil. 257.
5 Volume 4, Nationality, 1989 ed., p. 11-1 2.

The Lawphil Project - Arellano Law Foundation


SYLLABI/SYNOPSIS
EN BANC
[G.R. No. 135083. May 26, 1999]
ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO
and the COMMISSION ON ELECTIONS, respondents.
D E C I S I O N
MENDOZA, J .:
Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates
for vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel
V. Daza III. The results of the election were as follows:
Eduardo B. Manzano 103,853
Ernesto S. Mercado 100,894
Gabriel V. Daza III 54,275
[1]

The proclamation of private respondent was suspended in view of a pending petition for
disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a
citizen of the Philippines but of the United States.
In its resolution, dated May 7, 1998,
[2]
the Second Division of the COMELEC granted the
petition of Mamaril and ordered the cancellation of the certificate of candidacy of private
respondent on the ground that he is a dual citizen and, under 40(d) of the Local Government
Code, persons with dual citizenship are disqualified from running for any elective position. The
COMELECs Second Division said:
What is presented before the Commission is a petition for disqualification of Eduardo
Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in the May
11, 1998 elections. The petition is based on the ground that the respondent is an
American citizen based on the record of the Bureau of Immigration and
misrepresented himself as a natural-born Filipino citizen.
In his answer to the petition filed on April 27, 1998, the respondent admitted that he is
registered as a foreigner with the Bureau of Immigration under Alien Certificate of
Registration No. B-31632 and alleged that he is a Filipino citizen because he was born
in 1955 of a Filipino father and a Filipino mother. He was born in the United States,
San Francisco, California, on September 14, 1955, and is considered an American
citizen under US Laws. But notwithstanding his registration as an American citizen,
he did not lose his Filipino citizenship.
Judging from the foregoing facts, it would appear that respondent Manzano is both a
Filipino and a US citizen. In other words, he holds dual citizenship.
The question presented is whether under our laws, he is disqualified from the position
for which he filed his certificate of candidacy. Is he eligible for the office he seeks to
be elected?
Under Section 40(d) of the Local Government Code, those holding dual citizenship
are disqualified from running for any elective local position.
WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios
Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City.
On May 8, 1998, private respondent filed a motion for reconsideration.
[3]
The motion
remained pending even until after the election held on May 11, 1998.
Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the
COMELEC, the board of canvassers tabulated the votes cast for vice mayor of Makati City but
suspended the proclamation of the winner.
On May 19, 1998, petitioner sought to intervene in the case for
disqualification.
[4]
Petitioners motion was opposed by private respondent.
The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc
rendered its resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en
banc reversed the ruling of its Second Division and declared private respondent qualified to run
for vice mayor of the City of Makati in the May 11, 1998 elections.
[5]
The pertinent portions of
the resolution of the COMELEC en banc read:
As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco,
California, U.S.A. He acquired US citizenship by operation of the United States
Constitution and laws under the principle of jus soli.
He was also a natural born Filipino citizen by operation of the 1935 Philippine
Constitution, as his father and mother were Filipinos at the time of his birth. At the
age of six (6), his parents brought him to the Philippines using an American passport
as travel document. His parents also registered him as an alien with the Philippine
Bureau of Immigration. He was issued an alien certificate of registration. This,
however, did not result in the loss of his Philippine citizenship, as he did not renounce
Philippine citizenship and did not take an oath of allegiance to the United States.
It is an undisputed fact that when respondent attained the age of majority, he
registered himself as a voter, and voted in the elections of 1992, 1995 and 1998,
which effectively renounced his US citizenship under American law. Under
Philippine law, he no longer had U.S. citizenship.
At the time of the May 11, 1998 elections, the resolution of the Second Division,
adopted on May 7, 1998, was not yet final. Respondent Manzano obtained the highest
number of votes among the candidates for vice-mayor of Makati City, garnering one
hundred three thousand eight hundred fifty three (103,853) votes over his closest rival,
Ernesto S. Mercado, who obtained one hundred thousand eight hundred ninety four
(100,894) votes, or a margin of two thousand nine hundred fifty nine (2,959)
votes. Gabriel Daza III obtained third place with fifty four thousand two hundred
seventy five (54,275) votes. In applying election laws, it would be far better to err in
favor of the popular choice than be embroiled in complex legal issues involving
private international law which may well be settled before the highest court
(Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727).
WHEREFORE, the Commission en banc hereby REVERSES the resolution of the
Second Division, adopted on May 7, 1998, ordering the cancellation of the
respondents certificate of candidacy.
We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a
candidate for the position of vice-mayor of Makati City in the May 11, 1998,
elections.
ACCORDINGLY, the Commission directs the Makati City Board of Canvassers,
upon proper notice to the parties, to reconvene and proclaim the respondent Eduardo
Luis Barrios Manzano as the winning candidate for vice-mayor of Makati City.
Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the
evening of August 31, 1998, proclaimed private respondent as vice mayor of the City of Makati.
This is a petition for certiorari seeking to set aside the aforesaid resolution of the
COMELEC en banc and to declare private respondent disqualified to hold the office of vice
mayor of Makati City. Petitioner contends that
[T]he COMELEC en banc ERRED in holding that:
A. Under Philippine law, Manzano was no longer a U.S. citizen when he:
1. He renounced his U.S. citizenship when he attained the age of majority when he
was already 37 years old; and,
2. He renounced his U.S. citizenship when he (merely) registered himself as a
voter and voted in the elections of 1992, 1995 and 1998.
B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the
City of Makati;
C. At the time of the May 11, 1998 elections, the resolution of the Second Division
adopted on 7 May 1998 was not yet final so that, effectively, petitioner may not be
declared the winner even assuming that Manzano is disqualified to run for and hold
the elective office of Vice-Mayor of the City of Makati.
We first consider the threshold procedural issue raised by private respondent
Manzano whether petitioner Mercado has personality to bring this suit considering that he
was not an original party in the case for disqualification filed by Ernesto Mamaril nor was
petitioners motion for leave to intervene granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT

Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the
COMELEC in support of his claim that petitioner has no right to intervene and, therefore, cannot
bring this suit to set aside the ruling denying his motion for intervention:
Section 1. When proper and when may be permitted to intervene. Any person
allowed to initiate an action or proceeding may, before or during the trial of an action
or proceeding, be permitted by the Commission, in its discretion to intervene in such
action or proceeding, if he has legal interest in the matter in litigation, or in the
success of either of the parties, or an interest against both, or when he is so situated as
to be adversely affected by such action or proceeding.
. . . .
Section 3. Discretion of Commission. In allowing or disallowing a motion for
intervention, the Commission or the Division, in the exercise of its discretion, shall
consider whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and whether or not the intervenors
rights may be fully protected in a separate action or proceeding.
Private respondent argues that petitioner has neither legal interest in the matter in litigation nor
an interest to protect because he is a defeated candidate for the vice-mayoralty post of Makati
City [who] cannot be proclaimed as the Vice-Mayor of Makati City even if the private
respondent be ultimately disqualified by final and executory judgment.
The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the
proceedings before the COMELEC, there had already been a proclamation of the results of the
election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out
only second to private respondent. The fact, however, is that there had been no proclamation at
that time. Certainly, petitioner had, and still has, an interest in ousting private respondent from
the race at the time he sought to intervene. The rule in Labo v. COMELEC,
[6]
reiterated in
several cases,
[7]
only applies to cases in which the election of the respondent is contested, and the
question is whether one who placed second to the disqualified candidate may be declared the
winner. In the present case, at the time petitioner filed a Motion for Leave to File Intervention
on May 20, 1998, there had been no proclamation of the winner, and petitioners purpose was
precisely to have private respondent disqualified from running for [an] elective local position
under 40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally instituted the
disqualification proceedings), a registered voter of Makati City, was competent to bring the
action, so was petitioner since the latter was a rival candidate for vice mayor of Makati City.
Nor is petitioners interest in the matter in litigation any less because he filed a motion for
intervention only on May 20, 1998, after private respondent had been shown to have garnered
the highest number of votes among the candidates for vice mayor. That petitioner had a right to
intervene at that stage of the proceedings for the disqualification against private respondent is
clear from 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which
provides:
Any candidate who has been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an election to be disqualified and
he is voted for and receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry, or protest
and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the
evidence of guilt is strong.
Under this provision, intervention may be allowed in proceedings for disqualification even
after election if there has yet been no final judgment rendered.
The failure of the COMELEC en banc to resolve petitioners motion for intervention was
tantamount to a denial of the motion, justifying petitioner in filing the instant petition for
certiorari. As the COMELEC en banc instead decided the merits of the case, the present petition
properly deals not only with the denial of petitioners motion for intervention but also with the
substantive issues respecting private respondents alleged disqualification on the ground of dual
citizenship.
This brings us to the next question, namely, whether private respondent Manzano possesses
dual citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of
Makati City.
II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

The disqualification of private respondent Manzano is being sought under 40 of the Local
Government Code of 1991 (R.A. No. 7160), which declares as disqualified from running for
any elective local position: . . . (d) Those with dual citizenship. This provision is incorporated
in the Charter of the City of Makati.
[8]

Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides
with him in this case, contends that through 40(d) of the Local Government Code, Congress has
command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold
local elective office.
To begin with, dual citizenship is different from dual allegiance. The former arises when, as
a result of the concurrent application of the different laws of two or more states, a person is
simultaneously considered a national by the said states.
[9]
For instance, such a situation may arise
when a person whose parents are citizens of a state which adheres to the principle of jus
sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and
without any voluntary act on his part, is concurrently considered a citizen of both
states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the
following classes of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the
principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their
fathers country such children are citizens of that country;
(3) Those who marry aliens if by the laws of the latters country the former are considered
citizens, unless by their act or omission they are deemed to have renounced Philippine
citizenship.
There may be other situations in which a citizen of the Philippines may, without performing
any act, be also a citizen of another state; but the above cases are clearly possible given the
constitutional provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a person simultaneously
owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary,
dual allegiance is the result of an individuals volition.
With respect to dual allegiance, Article IV, 5 of the Constitution provides: Dual allegiance
of citizens is inimical to the national interest and shall be dealt with by law. This provision was
included in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained
its necessity as follows:
[10]

. . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I
have circulated a memorandum to the Bernas Committee according to which a dual
allegiance and I reiterate a dual allegiance is larger and more threatening than that
of mere double citizenship which is seldom intentional and, perhaps, never
insidious. That is often a function of the accident of mixed marriages or of birth on
foreign soil. And so, I do not question double citizenship at all.
What we would like the Committee to consider is to take constitutional cognizance of
the problem of dual allegiance. For example, we all know what happens in the
triennial elections of the Federation of Filipino-Chinese Chambers of Commerce
which consists of about 600 chapters all over the country. There is a Peking ticket, as
well as a Taipei ticket. Not widely known is the fact that the Filipino-Chinese
community is represented in the Legislative Yuan of the Republic of China in
Taiwan. And until recently, the sponsor might recall, in Mainland China in the
Peoples Republic of China, they have the Associated Legislative Council for
overseas Chinese wherein all of Southeast Asia including some European and Latin
countries were represented, which was dissolved after several years because of
diplomatic friction. At that time, the Filipino-Chinese were also represented in that
Overseas Council.
When I speak of double allegiance, therefore, I speak of this unsettled kind of
allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts,
may be said to be bound by a second allegiance, either to Peking or Taiwan. I also
took close note of the concern expressed by some Commissioners yesterday, including
Commissioner Villacorta, who were concerned about the lack of guarantees of
thorough assimilation, and especially Commissioner Concepcion who has always
been worried about minority claims on our natural resources.
Dual allegiance can actually siphon scarce national capital to Taiwan, Singapore,
China or Malaysia, and this is already happening. Some of the great commercial
places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese it is of
common knowledge in Manila. It can mean a tragic capital outflow when we have to
endure a capital famine which also means economic stagnation, worsening
unemployment and social unrest.
And so, this is exactly what we ask that the Committee kindly consider
incorporating a new section, probably Section 5, in the article on Citizenship which
will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND
SHALL BE DEALT WITH ACCORDING TO LAW.
In another session of the Commission, Ople spoke on the problem of these citizens with dual
allegiance, thus:
[11]

. . . A significant number of Commissioners expressed their concern about dual
citizenship in the sense that it implies a double allegiance under a double sovereignty
which some of us who spoke then in a freewheeling debate thought would be
repugnant to the sovereignty which pervades the Constitution and to citizenship itself
which implies a uniqueness and which elsewhere in the Constitution is defined in
terms of rights and obligations exclusive to that citizenship including, of course, the
obligation to rise to the defense of the State when it is threatened, and back of this,
Commissioner Bernas, is, of course, the concern for national security. In the course of
those debates, I think some noted the fact that as a result of the wave of
naturalizations since the decision to establish diplomatic relations with the Peoples
Republic of China was made in 1975, a good number of these naturalized Filipinos
still routinely go to Taipei every October 10; and it is asserted that some of them do
renew their oath of allegiance to a foreign government maybe just to enter into the
spirit of the occasion when the anniversary of the Sun Yat-Sen Republic is
commemorated. And so, I have detected a genuine and deep concern about double
citizenship, with its attendant risk of double allegiance which is repugnant to our
sovereignty and national security. I appreciate what the Committee said that this
could be left to the determination of a future legislature. But considering the scale of
the problem, the real impact on the security of this country, arising from, let us say,
potentially great numbers of double citizens professing double allegiance, will the
Committee entertain a proposed amendment at the proper time that will prohibit, in
effect, or regulate double citizenship?
Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional
Commission was not with dual citizens per se but with naturalized citizens who maintain their
allegiance to their countries of origin even after their naturalization. Hence, the phrase dual
citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as referring
to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this
disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict
process with respect to the termination of their status, for candidates with dual citizenship, it
should suffice if, upon the filing of their certificates of candidacy, they elect Philippine
citizenship to terminate their status as persons with dual citizenship considering that their
condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G.
Bernas, one of the most perceptive members of the Constitutional Commission, pointed out:
[D]ual citizenship is just a reality imposed on us because we have no control of the laws on
citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she
is considered a citizen of another country is something completely beyond our control.
[12]

By electing Philippine citizenship, such candidates at the same time forswear allegiance to
the other country of which they are also citizens and thereby terminate their status as dual
citizens. It may be that, from the point of view of the foreign state and of its laws, such an
individual has not effectively renounced his foreign citizenship. That is of no moment as the
following discussion on 40(d) between Senators Enrile and Pimentel clearly shows:
[13]

SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: Any person
with dual citizenship is disqualified to run for any elective local position. Under the present
Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is
a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural
born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship.
On the assumption that this person would carry two passports, one belonging to the country of his or
her father and one belonging to the Republic of the Philippines, may such a situation disqualify
the person to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he
would want to run for public office, he has to repudiate one of his citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the
country of the father claims that person, nevertheless, as a citizen? No one can renounce. There
are such countries in the world.
SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an
election for him of his desire to be considered as a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an
election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth,
a citizen without any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentlemans
example, if he does not renounce his other citizenship, then he is opening himself to
question. So, if he is really interested to run, the first thing he should do is to say in the
Certificate of Candidacy that: I am a Filipino citizen, and I have only one citizenship.
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He
will always have one citizenship, and that is the citizenship invested upon him or her in the
Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he
also acknowledges other citizenships, then he will probably fall under this disqualification.
This is similar to the requirement that an applicant for naturalization must renounce all
allegiance and fidelity to any foreign prince, potentate, state, or sovereignty
[14]
of which at the
time he is a subject or citizen before he can be issued a certificate of naturalization as a citizen of
the Philippines. In Parado v. Republic,
[15]
it was held:
[W]hen a person applying for citizenship by naturalization takes an oath that he
renounces his loyalty to any other country or government and solemnly declares that
he owes his allegiance to the Republic of the Philippines, the condition imposed by
law is satisfied and complied with. The determination whether such renunciation is
valid or fully complies with the provisions of our Naturalization Law lies within the
province and is an exclusive prerogative of our courts. The latter should apply the law
duly enacted by the legislative department of the Republic. No foreign law may or
should interfere with its operation and application. If the requirement of the Chinese
Law of Nationality were to be read into our Naturalization Law, we would be
applying not what our legislative department has deemed it wise to require, but what a
foreign government has thought or intended to exact. That, of course, is absurd. It
must be resisted by all means and at all cost. It would be a brazen encroachment upon
the sovereign will and power of the people of this Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco, California on
September 4, 1955, of Filipino parents. Since the Philippines adheres to the principle of jus
sanguinis, while the United States follows the doctrine of jus soli, the parties agree that, at birth
at least, he was a national both of the Philippines and of the United States. However, the
COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and 1998,
private respondent effectively renounced his U.S. citizenship under American law, so that now
he is solely a Philippine national.
Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is
not sufficient evidence of renunciation and that, in any event, as the alleged renunciation was
made when private respondent was already 37 years old, it was ineffective as it should have been
made when he reached the age of majority.
In holding that by voting in Philippine elections private respondent renounced his American
citizenship, the COMELEC must have in mind 349 of the Immigration and Nationality Act of
the United States, which provided that A person who is a national of the United States, whether
by birth or naturalization, shall lose his nationality by: . . . (e) Voting in a political election in a
foreign state or participating in an election or plebiscite to determine the sovereignty over foreign
territory. To be sure this provision was declared unconstitutional by the U.S. Supreme Court
in Afroyim v. Rusk
[16]
as beyond the power given to the U.S. Congress to regulate foreign
relations. However, by filing a certificate of candidacy when he ran for his present post, private
respondent elected Philippine citizenship and in effect renounced his American
citizenship. Private respondents certificate of candidacy, filed on March 27, 1998, contained the
following statements made under oath:
6. I AM A FILIPINO CITIZEN (STATE IF NATURAL-BORN OR
NATURALIZED) NATURAL-BORN
. . . .
10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN
LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR .
11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN
COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL
SUPPORT AND DEFEND THE CONSTITUTION OF THE PHILIPPINES AND WILL
MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE
LAWS, LEGAL ORDERS AND DECREES PROMULGATED BY THE DULY
CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND
THAT I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT
MENTAL RESERVATION OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT
THE FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL
KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce his American citizenship,
effectively removing any disqualification he might have as a dual citizen. Thus, in Frivaldo v.
COMELEC it was held:
[17]

It is not disputed that on January 20, 1983 Frivaldo became an American. Would the
retroactivity of his repatriation not effectively give him dual citizenship, which under
Sec. 40 of the Local Government Code would disqualify him from running for any
elective local position? We answer this question in the negative, as there is cogent
reason to hold that Frivaldo was really STATELESS at the time he took said oath of
allegiance and even before that, when he ran for governor in 1988. In his Comment,
Frivaldo wrote that he had long renounced and had long abandoned his American
citizenshiplong before May 8, 1995. At best, Frivaldo was stateless in the
interimwhen he abandoned and renounced his US citizenship but before he was
repatriated to his Filipino citizenship.
On this point, we quote from the assailed Resolution dated December 19, 1995:
By the laws of the United States, petitioner Frivaldo lost his American citizenship
when he took his oath of allegiance to the Philippine Government when he ran for
Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an
oath of allegiance to the Philippine Government.
These factual findings that Frivaldo has lost his foreign nationality long before the
elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic
that such findings of the Commission are conclusive upon this Court, absent any
showing of capriciousness or arbitrariness or abuse.
There is, therefore, no merit in petitioners contention that the oath of allegiance contained
in private respondents certificate of candidacy is insufficient to constitute renunciation of his
American citizenship. Equally without merit is petitioners contention that, to be effective, such
renunciation should have been made upon private respondent reaching the age of majority since
no law requires the election of Philippine citizenship to be made upon majority age.
Finally, much is made of the fact that private respondent admitted that he is registered as an
American citizen in the Bureau of Immigration and Deportation and that he holds an American
passport which he used in his last travel to the United States on April 22, 1997. There is no merit
in this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual
citizenship. The acts attributed to him can be considered simply as the assertion of his American
nationality before the termination of his American citizenship. What this Court said in Aznar v.
COMELEC
[18]
applies mutatis mutandis to private respondent in the case at bar:
. . . Considering the fact that admittedly Osmea was both a Filipino and an
American, the mere fact that he has a Certificate stating he is an American does not
mean that he is not still a Filipino. . . . [T]he Certification that he is an American does
not mean that he is not still a Filipino, possessed as he is, of both nationalities or
citizenships. Indeed, there is no express renunciation here of Philippine citizenship;
truth to tell, there is even no implied renunciation of said citizenship. When We
consider that the renunciation needed to lose Philippine citizenship must be express,
it stands to reason that there can be no such loss of Philippine citizenship when there
is no renunciation, either express or implied.
To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that
he is not a permanent resident or immigrant of another country; that he will defend and support
the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so
without mental reservation, private respondent has, as far as the laws of this country are
concerned, effectively repudiated his American citizenship and anything which he may have said
before as a dual citizen.
On the other hand, private respondents oath of allegiance to the Philippines, when
considered with the fact that he has spent his youth and adulthood, received his education,
practiced his profession as an artist, and taken part in past elections in this country, leaves no
doubt of his election of Philippine citizenship.
His declarations will be taken upon the faith that he will fulfill his undertaking made under
oath. Should he betray that trust, there are enough sanctions for declaring the loss of his
Philippine citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-
Santiago,
[19]
we sustained the denial of entry into the country of petitioner on the ground that,
after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese
passport and declared in commercial documents executed abroad that he was a Portuguese
national. A similar sanction can be taken against any one who, in electing Philippine citizenship,
renounces his foreign nationality, but subsequently does some act constituting renunciation of his
Philippine citizenship.
WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Quisumbing, Buena,
Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.
Panganiban, and Purisima, JJ., on leave.
Pardo, J., no part.



[1]
Petition, Rollo, p. 5.
[2]
Per Commissioner Amado M. Calderon and concurred in by Commissioners Julio F. Desamito and Japal M.
Guiani.
[3]
Id., Annex E, Rollo, pp. 50-63.
[4]
Rollo, pp. 78-83.
[5]
Per Chairman Bernardo P. Pardo and concurred in by Commissioners Manolo B. Gorospe, Teresita Dy-Liaco
Flores, Japal M. Guiani, and Luzviminda G. Tancangco. Commissioner Julio F. Desamito dissented.
[6]
176 SCRA 1 (1989).
[7]
Abella v. COMELEC, 201 SCRA 253 (1991); Benito v. COMELEC, 235 SCRA 436 (1994); Aquino v.
COMELEC, 248 SCRA 400 (1995); Frivaldo v. COMELEC, 257 SCRA 727 (1996).
[8]
R.A. No. 7854, the Charter of the City of Makati, provides: Sec. 20 The following are disqualifiedfrom
running for any elective position in the city: . . . (d) Those with dual citizenship.
[9]
JOVITO R. SALONGA, PRIVATE INTERNATIONAL LAW 166 (1995).
[10]
Id., at 361 (Session of July 8, 1986).
[11]
Id., at 233-234 (Session of June 25, 1986).
[12]
1 RECORD OF THE CONSTITUTIONAL COMMISSION 203 (Session of June 23, 1986).
[13]
Transcript, pp. 5-6, Session of Nov. 27, 1990.
[14]
C.A. No. 473, 12.
[15]
86 Phil. 340, 343 (1950).
[16]
387 U.S. 253, 18 L. Ed. 2d 757 (1967), overruling Perez v. Brownell, 356 U.S. 2 L. Ed. 2d 603 (1958).
[17]
257 SCRA 727, 759-760 (1996).
[18]
185 SCRA 703, 711 (1990). See also Kawakita v. United States, 343 U.S. 717, 96 L. Ed. 1249 (1952).
[19]
169 SCRA 364 (1989).

EN BANC
[G.R. No. 137000. August 9, 2000]
CIRILO R. VALLES, petitioner, vs. COMMISSION ON
ELECTIONS and ROSALIND YBASCO
LOPEZ, respondents.
D E C I S I O N
PURISIMA, J .:
This is a petition for certiorari under Rule 65, pursuant to Section 2, Rule 64
of the 1997 Rules of Civil Procedure, assailing Resolutions dated July 17, 1998
and January 15, 1999, respectively, of the Commission on Elections in SPA No.
98-336, dismissing the petition for disqualification filed by the herein petitioner,
Cirilo R. Valles, against private respondent Rosalind Ybasco Lopez, in the May
1998 elections for governor of Davao Oriental.
Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace,
Broome, Western Australia, to the spouses, Telesforo Ybasco, a Filipino citizen
and native of Daet, Camarines Norte, and Theresa Marquez, an Australian. In
1949, at the age of fifteen, she left Australia and came to settle in the
Philippines.
On June 27, 1952, she was married to Leopoldo Lopez, a Filipino citizen, at
the Malate Catholic Church in Manila. Since then, she has continuously
participated in the electoral process not only as a voter but as a candidate, as
well. She served as Provincial Board Member of the Sangguniang
Panlalawigan of Davao Oriental. In 1992, she ran for and was elected governor
of Davao Oriental. Her election was contested by her opponent, Gil Taojo, Jr.,
in a petition for quo warranto, docketed as EPC No. 92-54, alleging as ground
therefor her alleged Australian citizenship. However, finding no sufficient proof
that respondent had renounced her Philippine citizenship, the Commission on
Elections en banc dismissed the petition, ratiocinating thus:
A cursory reading of the records of this case vis-a-vis the impugned
resolution shows that respondent was able to produce documentary proofs of
the Filipino citizenship of her late father... and consequently, prove her own
citizenship and filiation by virtue of the Principle of Jus Sanguinis, the
perorations of the petitioner to the contrary notwithstanding.
On the other hand, except for the three (3) alleged important documents . . .
no other evidence substantial in nature surfaced to confirm the allegations of
petitioner that respondent is an Australian citizen and not a Filipino. Express
renunciation of citizenship as a mode of losing citizenship under
Commonwealth Act No. 63 is an equivocal and deliberate act with full
awareness of its significance and consequence. The evidence adduced by
petitioner are inadequate, nay meager, to prove that respondent contemplated
renunciation of her Filipino citizenship.
[1]

In the 1995 local elections, respondent Rosalind Ybasco Lopez ran for re-
election as governor of Davao Oriental. Her opponent, Francisco Rabat, filed a
petition for disqualification, docketed as SPA No. 95-066 before the COMELEC,
First Division, contesting her Filipino citizenship but the said petition was
likewise dismissed by the COMELEC, reiterating substantially its decision in
EPC 92-54.
The citizenship of private respondent was once again raised as an issue
when she ran for re-election as governor of Davao Oriental in the May 11, 1998
elections. Her candidacy was questioned by the herein petitioner, Cirilo Valles,
in SPA No. 98-336.
On July 17, 1998, the COMELECs First Division came out with a
Resolution dismissing the petition, and disposing as follows:
Assuming arguendo that res judicata does not apply and We are to dispose
the instant case on the merits trying it de novo, the above table definitely
shows that petitioner herein has presented no new evidence to disturb the
Resolution of this Commission in SPA No. 95-066. The present petition
merely restates the same matters and incidents already passed upon by this
Commission not just in 1995 Resolution but likewise in the Resolution of EPC
No. 92-54. Not having put forth any new evidence and matter substantial in
nature, persuasive in character or sufficiently provocative to compel reversal
of such Resolutions, the dismissal of the present petition follows as a matter
of course.
xxx....................................xxx....................................xxx
WHEREFORE, premises considered and there being no new matters and
issues tendered, We find no convincing reason or impressive explanation to
disturb and reverse the Resolutions promulgated by this Commission in EPC
92-54 and SPA. 95-066. This Commission RESOLVES as it hereby
RESOLVES to DISMISS the present petition.
SO ORDERED.
[2]

Petitioner interposed a motion for reconsideration of the aforesaid
Resolution but to no avail. The same was denied by the COMELEC in its en
banc Resolution of January 15, 1999.
Undaunted, petitioner found his way to this Court via the present petition;
questioning the citizenship of private respondent Rosalind Ybasco Lopez.
The Commission on Elections ruled that private respondent Rosalind
Ybasco Lopez is a Filipino citizen and therefore, qualified to run for a public
office because (1) her father, Telesforo Ybasco, is a Filipino citizen, and by
virtue of the principle of jus sanguinis she was a Filipino citizen under the 1987
Philippine Constitution; (2) she was married to a Filipino, thereby making her
also a Filipino citizen ipso jure under Section 4 of Commonwealth Act 473; (3)
and that, she renounced her Australian citizenship on January 15, 1992 before
the Department of Immigration and Ethnic Affairs of Australia and her Australian
passport was accordingly cancelled as certified to by the Australian Embassy in
Manila; and (4) furthermore, there are the COMELEC Resolutions in EPC No.
92-54 and SPA Case No. 95-066, declaring her a Filipino citizen duly qualified
to run for the elective position of Davao Oriental governor.
Petitioner, on the other hand, maintains that the private respondent is an
Australian citizen, placing reliance on the admitted facts that:
a) In 1988, private respondent registered herself with the Bureau of
Immigration as an Australian national and was issued Alien Certificate of
Registration No. 404695 dated September 19, 1988;
b) On even date, she applied for the issuance of an Immigrant Certificate of
Residence (ICR), and
c) She was issued Australian Passport No. H700888 on March 3, 1988.
Petitioner theorizes that under the aforestated facts and circumstances, the
private respondent had renounced her Filipino citizenship. He contends that in
her application for alien certificate of registration and immigrant certificate of
residence, private respondent expressly declared under oath that she was a
citizen or subject of Australia; and said declaration forfeited her Philippine
citizenship, and operated to disqualify her to run for elective office.
As regards the COMELECs finding that private respondent had renounced
her Australian citizenship on January 15, 1992 before the Department of
Immigration and Ethnic Affairs of Australia and had her Australian passport
cancelled on February 11, 1992, as certified to by the Australian Embassy here
in Manila, petitioner argues that the said acts did not automatically restore the
status of private respondent as a Filipino citizen. According to petitioner, for the
private respondent to reacquire Philippine citizenship she must comply with the
mandatory requirements for repatriation under Republic Act 8171; and the
election of private respondent to public office did not mean the restoration of her
Filipino citizenship since the private respondent was not legally
repatriated. Coupled with her alleged renunciation of Australian citizenship,
private respondent has effectively become a stateless person and as such, is
disqualified to run for a public office in the Philippines; petitioner concluded.
Petitioner theorizes further that the Commission on Elections erred in
applying the principle of res judicata to the case under consideration; citing the
ruling in Moy Ya Lim Yao vs. Commissioner of Immigration,
[3]
that:
xxx Everytime the citizenship of a person is material or indispensable in a
judicial or administrative case, whatever the corresponding court or
administrative authority decides therein as to such citizenship is generally
not considered as res adjudicata, hence it has to be threshed out again
and again as the occasion may demand. xxx
The petition is unmeritorious.
The Philippine law on citizenship adheres to the principle of jus
sanguinis. Thereunder, a child follows the nationality or citizenship of the
parents regardless of the place of his/her birth, as opposed to the doctrine of jus
soli which determines nationality or citizenship on the basis of place of birth.
Private respondent Rosalind Ybasco Lopez was born on May 16, 1934 in
Napier Terrace, Broome, Western Australia, to the spouses, Telesforo Ybasco,
a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez,
an Australian. Historically, this was a year before the 1935 Constitution took
into effect and at that time, what served as the Constitution of the Philippines
were the principal organic acts by which the United States governed the
country. These were the Philippine Bill of July 1, 1902 and the Philippine
Autonomy Act of August 29, 1916, also known as the Jones Law.
Among others, these laws defined who were deemed to be citizens of the
Philippine islands. The Philippine Bill of 1902 defined Philippine citizens as:
SEC. 4 xxx all inhabitants of the Philippine Islands continuing to reside
therein who were Spanish subjects on the eleventh day of April, eighteen
hundred and ninety-nine, and then resided in the Philippine Islands, and their
children born subsequent thereto, shall be deemed and held to be citizens of
the Philippine Islands and as such entitled to the protection of the United
States, except such as shall have elected to preserve their allegiance to the
Crown of Spain in accordance with the provisions of the treaty of peace
between the United States and Spain signed at Paris December tenth,
eighteen hundred and ninety-eight. (underscoring ours)
The Jones Law, on the other hand, provides:
SEC. 2 That all inhabitants of the Philippine Islands who were Spanish
subjects on the eleventh day of April, eighteen hundred and ninety-nine, and
then resided in said Islands, and their children born subsequent thereto, shall
be deemed and held to be citizens of the Philippine Islands, except such as
shall have elected to preserve their allegiance to the Crown of Spain in
accordance with the provisions of the treaty of peace between the United
States and Spain, signed at Paris December tenth, eighteen hundred and
ninety-eight, and except such others as have since become citizens of some
other country: Provided, That the Philippine Legislature, herein provided for,
is hereby authorized to provide by law for the acquisition of Philippine
citizenship by those natives of the Philippine Islands who cannot come within
the foregoing provisions, the natives of the insular possessions of the United
States, and such other persons residing in the Philippine Islands who are
citizens of the United States, or who could become citizens of the United
States under the laws of the United States if residing therein. (underscoring
ours)
Under both organic acts, all inhabitants of the Philippines who were Spanish
subjects on April 11, 1899 and resided therein including their children are
deemed to be Philippine citizens. Private respondents father, Telesforo
Ybasco, was born on January 5, 1879 in Daet, Camarines Norte, a fact duly
evidenced by a certified true copy of an entry in the Registry of Births. Thus,
under the Philippine Bill of 1902 and the Jones Law, Telesforo Ybasco was
deemed to be a Philippine citizen. By virtue of the same laws, which were the
laws in force at the time of her birth, Telesforos daughter, herein private
respondent Rosalind Ybasco Lopez, is likewise a citizen of the Philippines.
The signing into law of the 1935 Philippine Constitution has established the
principle of jus sanguinis as basis for the acquisition of Philippine citizenship, to
wit:
(1) Those who are citizens of the Philippine Islands at the time of the adoption of this
Constitution.
(2) Those born in the Philippine Islands of foreign parents who, before the adoption of
this Constitution had been elected to public office in the Philippine Islands.
(3) Those whose fathers are citizens of the Philippines.
(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of
majority, elect Philippine citizenship.
(5) Those who are naturalized in accordance with law.
So also, the principle of jus sanguinis, which confers citizenship by virtue of
blood relationship, was subsequently retained under the 1973
[4]
and
1987
[5]
Constitutions. Thus, the herein private respondent, Rosalind Ybasco
Lopez, is a Filipino citizen, having been born to a Filipino father. The fact of her
being born in Australia is not tantamount to her losing her Philippine
citizenship. If Australia follows the principle of jus soli, then at most, private
respondent can also claim Australian citizenship resulting to her possession of
dual citizenship.
Petitioner also contends that even on the assumption that the private
respondent is a Filipino citizen, she has nonetheless renounced her Philippine
citizenship. To buttress this contention, petitioner cited private respondents
application for an Alien Certificate of Registration (ACR) and Immigrant
Certificate of Residence (ICR), on September 19, 1988, and the issuance to her
of an Australian passport on March 3, 1988.
Under Commonwealth Act No. 63, a Filipino citizen may lose his
citizenship:
(1) By naturalization in a foreign country;
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the constitution or laws of a
foreign country upon attaining twenty-one years of age or more;
(4) By accepting commission in the military, naval or air service of a foreign country;
(5) By cancellation of the certificate of naturalization;
(6) By having been declared by competent authority, a deserter of the Philippine armed
forces in time of war, unless subsequently, a plenary pardon or amnesty has been
granted: and
(7) In case of a woman, upon her marriage, to a foreigner if, by virtue of the laws in
force in her husbands country, she acquires his nationality.
In order that citizenship may be lost by renunciation, such renunciation
must be express. Petitioners contention that the application of private
respondent for an alien certificate of registration, and her Australian passport, is
bereft of merit. This issue was put to rest in the case of Aznar vs.
COMELEC
[6]
and in the more recent case of Mercado vs. Manzano and
COMELEC.
[7]

In the case of Aznar, the Court ruled that the mere fact that respondent
Osmena was a holder of a certificate stating that he is an American did not
mean that he is no longer a Filipino, and that an application for an alien
certificate of registration was not tantamount to renunciation of his Philippine
citizenship.
And, in Mercado vs. Manzano and COMELEC, it was held that the fact that
respondent Manzano was registered as an American citizen in the Bureau of
Immigration and Deportation and was holding an American passport on April
22, 1997, only a year before he filed a certificate of candidacy for vice-mayor of
Makati, were just assertions of his American nationality before the termination
of his American citizenship.
Thus, the mere fact that private respondent Rosalind Ybasco Lopez was a
holder of an Australian passport and had an alien certificate of registration are
not acts constituting an effective renunciation of citizenship and do not militate
against her claim of Filipino citizenship. For renunciation to effectively result in
the loss of citizenship, the same must be express.
[8]
As held by this court in the
aforecited case of Aznar, an application for an alien certificate of registration
does not amount to an express renunciation or repudiation of ones
citizenship. The application of the herein private respondent for an alien
certificate of registration, and her holding of an Australian passport, as in the
case of Mercado vs. Manzano, were mere acts of assertion of her Australian
citizenship before she effectively renounced the same. Thus, at the most,
private respondent had dual citizenship - she was an Australian and a Filipino,
as well.
Moreover, under Commonwealth Act 63, the fact that a child of Filipino
parent/s was born in another country has not been included as a ground for
losing ones Philippine citizenship. Since private respondent did not lose or
renounce her Philippine citizenship, petitioners claim that respondent must go
through the process of repatriation does not hold water.
Petitioner also maintains that even on the assumption that the private
respondent had dual citizenship, still, she is disqualified to run for governor of
Davao Oriental; citing Section 40 of Republic Act 7160 otherwise known as the
Local Government Code of 1991, which states:
SEC. 40. Disqualifications. The following persons are disqualified from
running for any elective local position:
xxx....................................xxx....................................xxx
(d) Those with dual citizenship;
xxx....................................xxx....................................xxx
Again, petitioners contention is untenable.
In the aforecited case of Mercado vs. Manzano, the Court clarified dual
citizenship as used in the Local Government Code and reconciled the same
with Article IV, Section 5 of the 1987 Constitution on dual
allegiance.
[9]
Recognizing situations in which a Filipino citizen may, without
performing any act, and as an involuntary consequence of the conflicting laws
of different countries, be also a citizen of another state, the Court explained that
dual citizenship as a disqualification must refer to citizens with dual
allegiance. The Court succinctly pronounced:
xxx the phrase dual citizenship in R.A. No. 7160, xxx 40 (d) and in R.A. No.
7854, xxx 20 must be understood as referring to dual
allegiance. Consequently, persons with mere dual citizenship do not fall
under this disqualification.
Thus, the fact that the private respondent had dual citizenship did not
automatically disqualify her from running for a public office. Furthermore, it was
ruled that for candidates with dual citizenship, it is enough that they elect
Philippine citizenship upon the filing of their certificate of candidacy, to
terminate their status as persons with dual citizenship.
[10]
The filing of a
certificate of candidacy sufficed to renounce foreign citizenship, effectively
removing any disqualification as a dual citizen.
[11]
This is so because in the
certificate of candidacy, one declares that he/she is a Filipino citizen and that
he/she will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto. Such declaration, which is under
oath, operates as an effective renunciation of foreign citizenship. Therefore,
when the herein private respondent filed her certificate of candidacy in 1992,
such fact alone terminated her Australian citizenship.
Then, too, it is significant to note that on January 15 1992, private
respondent executed a Declaration of Renunciation of Australian Citizenship,
duly registered in the Department of Immigration and Ethnic Affairs of Australia
on May 12, 1992. And, as a result, on February 11, 1992, the Australian
passport of private respondent was cancelled, as certified to by Second
Secretary Richard F. Munro of the Embassy of Australia in Manila. As aptly
appreciated by the COMELEC, the aforesaid acts were enough to settle the
issue of the alleged dual citizenship of Rosalind Ybasco Lopez. Since her
renunciation was effective, petitioners claim that private respondent must go
through the whole process of repatriation holds no water.
Petitioner maintains further that when citizenship is raised as an issue in
judicial or administrative proceedings, the resolution or decision thereon is
generally not considered res judicata in any subsequent proceeding challenging
the same; citing the case of Moy Ya Lim Yao vs. Commissioner of
Immigration.
[12]
He insists that the same issue of citizenship may be threshed out
anew.
Petitioner is correct insofar as the general rule is concerned, i.e. the
principle of res judicata generally does not apply in cases hinging on the issue
of citizenship. However, in the case of Burca vs. Republic,
[13]
an exception to
this general rule was recognized. The Court ruled in that case that in order that
the doctrine of res judicata may be applied in cases of citizenship, the following
must be present:
1) a persons citizenship be raised as a material issue in a controversy where said
person is a party;
2) the Solicitor General or his authorized representative took active part in the
resolution thereof, and
3) the finding on citizenship is affirmed by this Court.
Although the general rule was set forth in the case of Moy Ya Lim Yao, the
case did not foreclose the weight of prior rulings on citizenship. It elucidated
that reliance may somehow be placed on these antecedent official findings,
though not really binding, to make the effort easier or simpler.
[14]
Indeed, there
appears sufficient basis to rely on the prior rulings of the Commission on
Elections in SPA. No. 95-066 and EPC 92-54 which resolved the issue of
citizenship in favor of the herein private respondent. The evidence adduced by
petitioner is substantially the same evidence presented in these two prior
cases. Petitioner failed to show any new evidence or supervening event to
warrant a reversal of such prior resolutions. However, the procedural issue
notwithstanding, considered on the merits, the petition cannot prosper.
WHEREFORE, the petition is hereby DISMISSED and the COMELEC
Resolutions, dated July 17, 1998 and January 15, 1999, respectively, in SPA
No. 98-336 AFFIRMED.
Private respondent Rosalind Ybasco Lopez is hereby adjudged qualified to
run for governor of Davao Oriental. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, Jr., JJ., concur.
Bellosillo, J., abroad on official business.



[1]
Rollo, p. 31.
[2]
Rollo, pp. 57-58.
[3]
141 SCRA 292, 367.
[4]
Article III, Section 1. The following are citizens of the Philippines:
1.....Those who are citizens of the Philippines at the time of the adoption of this Constitution.
2.....Those whose fathers or mothers are citizens of the Philippines.
3.....Those who elect Philippine citizenship pursuant to the provisions of the Constitution of nineteen hundred
and thirty-five.
4.....Those who are naturalized in accordance with law.
[5]
Article IV, Section 1. The following are citizens of the Philippines:
1.....Those who are citizens of the Philippines at the time of the adoption of this Constitution
2.....Those whose fathers and mothers are citizens of the Philippines.
3.....Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching
the age of majority; and
4.....Those who are naturalized in accordance with law.
[6]
185 SCRA 703.
[7]
G.R. No. 135083, May 26, 1999.
[8]
Commonwealth Act 63, Section 1.
[9]
Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.
[10]
Mercado vs. Manzano, supra.
[11]
Ibid.
[12]
41 SCRA 292, supra.
[13]
51 SCRA 248.
[14]
Moy Ya Lim Yao, supra, pp. 366-367.


Republic of the Philippines
Supreme Court
Manila

EN BANC

EUSEBIO EUGENIO K. LOPEZ, G.R. No. 182701
Petitioner,
Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
- versus - CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.

COMMISSION ON ELECTIONS Promulgated:
and TESSIE P. VILLANUEVA,
Respondents. July 23, 2008

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

R E S O L U T I O N


REYES, R.T., J .:


A Filipino-American or any dual citizen cannot run for any elective public
position in the Philippines unless he or she personally swears to a renunciation of
all foreign citizenship at the time of filing the certificate of candidacy.


This is a petition for certiorari under Rule 65, in relation to Rule 64 of the
Rules on Civil Procedure assailing the (1) Resolution
[1]
and (2) Omnibus Order
[2]
of
the Commission on Elections (COMELEC), Second Division, disqualifying petitioner
from running as Barangay Chairman.

Petitioner Eusebio Eugenio K. Lopez was a candidate for the position of
Chairman of Barangay Bagacay, San Dionisio, Iloilo City in the synchronized
Barangay and Sangguniang Kabataan Elections held on October 29, 2007.

On October 25, 2007, respondent Tessie P. Villanueva filed a
petition
[3]
before the Provincial Election Supervisor of the Province of Iloilo,
praying for the disqualification of petitioner on the ground that he is an American
citizen, hence, ineligible from running for any public office. In his
Answer,
[4]
petitioner argued that he is a dual citizen, a Filipino and at the same
time an American, by virtue of Republic Act (R.A.) No. 9225, otherwise known as
the Citizenship Retention and Re-acquisition Act of 2003.
[5]
He returned to
thePhilippines and resided in Barangay Bagacay. Thus, he said, he possessed all
the qualifications to run for Barangay Chairman.

After the votes for Barangay Chairman were canvassed, petitioner emerged
as the winner.
[6]


On February 6, 2008, COMELEC issued the assailed Resolution granting the
petition for disqualification, disposing as follows:



WHEREFORE, premises considered, the instant Petition for Disqualification is
GRANTED and respondent Eusebio Eugenio K. Lopez is DISQUALIFIED from running as
Barangay Chairman of Barangay Bagacay, San Dionisio, Iloilo.

SO ORDERED.
[7]


In ruling against petitioner, the COMELEC found that he was not able to
regain his Filipino citizenship in the manner provided by law. According to the
poll body, to be able to qualify as a candidate in the elections, petitioner should
have made a personal and sworn renunciation of any and all foreign
citizenship. This, petitioner failed to do.

His motion for reconsideration having been denied, petitioner resorted to
the present petition, imputing grave abuse of discretion on the part of the
COMELEC for disqualifying him from running and assuming the office of Barangay
Chairman.

We dismiss the petition.

Relying on Valles v. Commission on Elections,
[8]
petitioner argues that his
filing of a certificate of candidacy operated as an effective renunciation of foreign
citizenship.

We note, however, that the operative facts that led to this Courts ruling
in Valles are substantially different from the present case. In Valles, the
candidate, Rosalind Ybasco Lopez, was a dual citizen by accident of birth on
foreign soil.
[9]
Lopez was born of Filipino parents in Australia, a country which
follows the principle of jus soli. As a result, she acquired Australian citizenship by
operation of Australian law, but she was also considered a Filipino citizen under
Philippine law. She did not perform any act to swear allegiance to a country other
than the Philippines.

In contrast, petitioner was born a Filipino but he deliberately sought
American citizenship and renounced his Filipino citizenship. He later on became a
dual citizen by re-acquiring Filipino citizenship.

More importantly, the Courts 2000 ruling in Valles has been superseded by
the enactment of R.A. No. 9225
[10]
in 2003. R.A. No. 9225 expressly provides for
the conditions before those who re-acquired Filipino citizenship may run for a
public office in the Philippines. Section 5 of the said law states:

Section 5. Civil and Political Rights and Liabilities. Those who retain or re-
acquire Philippine citizenship under this Act shall enjoy full civil and political rights and
be subject to all attendant liabilities and responsibilities under existing laws of
the Philippines and the following conditions:

x x x x

(2) Those seeking elective public office in the Philippines shall meet the
qualification for holding such public office as required by the Constitution 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. (Emphasis added)

Petitioner re-acquired his Filipino citizenship under the cited law. This new
law explicitly provides that should one seek elective public office, he should first
make a personal and sworn renunciation of any and all foreign citizenship before
any public officer authorized to administer an oath.

Petitioner failed to comply with this requirement. We quote with approval
the COMELEC observation on this point:

While respondent was able to regain his Filipino Citizenship by virtue of the Dual
Citizenship Law when he took his oath of allegiance before the Vice Consul of the
Philippine Consulate Generals Office in Los Angeles, California, the same is not enough
to allow him to run for a public office. The above-quoted provision of law mandates
that a candidate with dual citizenship must make a personal and sworn renunciation of
any and all foreign citizenship before any public officer authorized to administer an
oath. There is no evidence presented that will show that respondent complied with
the provision of R.A. No. 9225. Absent such proof we cannot allow respondent to run
for Barangay Chairman of Barangay Bagacay.

For the renunciation to be valid, it must be contained in an affidavit duly executed
before an officer of law who is authorized to administer an oath. The affiant must state
in clear and unequivocal terms that he is renouncing all foreign citizenship for it to be
effective. In the instant case, respondent Lopezs failure to renounce his American
citizenship as proven by the absence of an affidavit that will prove the contrary leads
this Commission to believe that he failed to comply with the positive mandate of
law. For failure of respondent to prove that he abandoned his allegiance to the United
States, this Commission holds him disqualified from running for an elective position in
the Philippines.
[11]
(Emphasis added)

While it is true that petitioner won the elections, took his oath and began to
discharge the functions of Barangay Chairman, his victory can not cure the defect
of his candidacy. Garnering the most number of votes does not validate the
election of a disqualified candidate because the application of the constitutional
and statutory provisions on disqualification is not a matter of popularity.
[12]


In sum, the COMELEC committed no grave abuse of discretion in
disqualifying petitioner as candidate for Chairman in the Barangay elections of
2007.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.




RUBEN T. REYES
Associate Justice


WE CONCUR:




REYNATO S. PUNO
Chief Justice




LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO
Associate Justice Associate Justice




ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice




RENATO C. CORONA CONCHITA CARPIO MORALES
Associate Justice Associate Justice




ADOLFO S. AZCUNA DANTE O. TINGA
Associate Justice Associate Justice





MINITA V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice




ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO
Associate Justice Associate Justice




ARTURO D. BRION
Associate Justice




C E R T I F I C A T I O N


Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Resolution had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.




REYNATO S. PUNO
Chief Justice



[1]
SPA 07-198 (BGY), signed by Rene V. Sarmiento, as Presiding Commissioner, and Nicodemo T. Ferrer, as
Commissioner; rollo, pp. 16-20.
[2]
Signed by Jose A.R. Melo, as Chairman, and Romeo A. Brawner, Rene V. Sarmiento, and Nicodemo T. Ferrer,
as Commissioners.
[3]
Rollo, pp. 31-35.
[4]
Id. at 36-37.
[5]
Also known as the Dual Citizenship Law.
[6]
Rollo, pp. 6, 19.
[7]
Id. at 20.
[8]
G.R. No. 137000, August 9, 2000, 337 SCRA 543.
[9]
See Mercado v. Manzano, G.R. No. 135083, May 26, 1999, 307 SCRA 630.
[10]
See note 5.
[11]
Rollo, p. 19.
[12]
See Reyes v. Commission on Elections, G.R. No. 52699, May 15, 1980, 97 SCRA 500.

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 160869 May 11, 2007
AASJS (ADVOCATES AND ADHERENTS OF SOCIAL JUSTICE FOR SCHOOL TEACHERS AND ALLIED WORKERS)
MEMBER - HECTOR GUMANGAN CALILUNG, Petitioner,
vs.
THE HONORABLE SIMEON DATUMANONG, in his official capacity as the Secretary of Justice,Respondent.
D E C I S I O N
QUISUMBING, J .:
This is an original action for prohibition under Rule 65 of the 1997 Revised Rules of Civil Procedure.
Petitioner filed the instant petition against respondent, then Secretary of Justice Simeon Datumanong, the official tasked to
implement laws governing citizenship.
1
Petitioner prays that a writ of prohibition be issued to stop respondent from implementing
Republic Act No. 9225, entitled "An Act Making the Citizenship of Philippine Citizens Who Acquire Foreign Citizenship
Permanent, Amending for the Purpose Commonwealth Act No. 63, As Amended, and for Other Purposes." Petitioner avers that
Rep. Act No. 9225 is unconstitutional as it violates Section 5, Article IV of the 1987 Constitution that states, "Dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law."
Rep. Act No. 9225, signed into law by President Gloria M. Arroyo on August 29, 2003, reads:
SECTION 1. Short Title.-This Act shall be known as the "Citizenship Retention and Reacquisition Act of 2003."
SEC. 2. Declaration of Policy.-It is hereby declared the policy of the State that all Philippine citizens who become citizens of
another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act.
SEC. 3. Retention of Philippine Citizenship.-Any provision of law to the contrary notwithstanding, natural-born citizens of the
Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby
deemed to have reacquired Philippine citizenship upon taking the following oath of allegiance to the Republic:
"I ___________________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of
the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I
hereby declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance
thereto; and that I impose this obligation upon myself voluntarily without mental reservation or purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their
Philippine citizenship upon taking the aforesaid oath.
SEC. 4. Derivative Citizenship. - The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of
age, of those who reacquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines.
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 existing laws of the Philippines and
the following conditions:
(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article
V of the Constitution, Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of
2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the qualifications for holding such
public office as required by the Constitution 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;
(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the
Republic of the Philippines and its duly constituted authorities prior to their assumption of office: Provided,
That they renounce their oath of allegiance to the country where they took that oath;
(4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a
license or permit to engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised
by, or extended to, those who:
(a) are candidates for or are occupying any public office in the country of which they are naturalized
citizens; and/or
(b) are in the active service as commissioned or noncommissioned officers in the armed forces of the
country which they are naturalized citizens.
SEC. 6. Separability Clause. - If any section or provision of this Act is held unconstitutional or invalid, any other section or
provision not affected thereby shall remain valid and effective.
SEC. 7. Repealing Clause. - All laws, decrees, orders, rules and regulations inconsistent with the provisions of this Act are
hereby repealed or modified accordingly.
SEC. 8. Effectivity Clause. - This Act shall take effect after fifteen (15) days following its publication in the Official Gazette or two
(2) newspapers of general circulation.
In this petition for prohibition, the following issues have been raised: (1) Is Rep. Act No. 9225 unconstitutional? (2) Does this
Court have jurisdiction to pass upon the issue of dual allegiance?
We shall discuss these issues jointly.
Petitioner contends that Rep. Act No. 9225 cheapens Philippine citizenship. He avers that Sections 2 and 3 of Rep. Act No.
9225, together, allow dual allegiance and not dual citizenship. Petitioner maintains that Section 2 allows all Filipinos, either
natural-born or naturalized, who become foreign citizens, to retain their Philippine citizenship without losing their foreign
citizenship. Section 3 permits dual allegiance because said law allows natural-born citizens of the Philippines to regain their
Philippine citizenship by simply taking an oath of allegiance without forfeiting their foreign allegiance.
2
The Constitution, however,
is categorical that dual allegiance is inimical to the national interest.
The Office of the Solicitor General (OSG) claims that Section 2 merely declares as a state policy that "Philippine citizens who
become citizens of another country shall be deemed not to have lost their Philippine citizenship." The OSG further claims that the
oath in Section 3 does not allow dual allegiance since the oath taken by the former Filipino citizen is an effective renunciation and
repudiation of his foreign citizenship. The fact that the applicant taking the oath recognizes and accepts the supreme authority of
the Philippines is an unmistakable and categorical affirmation of his undivided loyalty to the Republic.
3

In resolving the aforecited issues in this case, resort to the deliberations of Congress is necessary to determine the intent of the
legislative branch in drafting the assailed law. During the deliberations, the issue of whether Rep. Act No. 9225 would allow dual
allegiance had in fact been the subject of debate. The record of the legislative deliberations reveals the following:
x x x x
Pursuing his point, Rep. Dilangalen noted that under the measure, two situations exist - - the retention of foreign citizenship, and
the reacquisition of Philippine citizenship. In this case, he observed that there are two citizenships and therefore, two allegiances.
He pointed out that under the Constitution, dual allegiance is inimical to public interest. He thereafter asked whether with the
creation of dual allegiance by reason of retention of foreign citizenship and the reacquisition of Philippine citizenship, there will
now be a violation of the Constitution
Rep. Locsin underscored that the measure does not seek to address the constitutional injunction on dual allegiance as inimical to
public interest. He said that the proposed law aims to facilitate the reacquisition of Philippine citizenship by speedy means.
However, he said that in one sense, it addresses the problem of dual citizenship by requiring the taking of an oath. He explained
that the problem of dual citizenship is transferred from the Philippines to the foreign country because the latest oath that will be
taken by the former Filipino is one of allegiance to the Philippines and not to the United States, as the case may be. He added
that this is a matter which the Philippine government will have no concern and competence over.
Rep. Dilangalen asked why this will no longer be the country's concern, when dual allegiance is involved.
Rep. Locsin clarified that this was precisely his objection to the original version of the bill, which did not require an oath of
allegiance. Since the measure now requires this oath, the problem of dual allegiance is transferred from the Philippines to the
foreign country concerned, he explained.
x x x x
Rep. Dilangalen asked whether in the particular case, the person did not denounce his foreign citizenship and therefore still owes
allegiance to the foreign government, and at the same time, owes his allegiance to the Philippine government, such that there is
now a case of dual citizenship and dual allegiance.
Rep. Locsin clarified that by swearing to the supreme authority of the Republic, the person implicitly renounces his foreign
citizenship. However, he said that this is not a matter that he wishes to address in Congress because he is not a member of a
foreign parliament but a Member of the House.
x x x x
Rep. Locsin replied that it is imperative that those who have dual allegiance contrary to national interest should be dealt with by
law. However, he said that the dual allegiance problem is not addressed in the bill. He then cited the Declaration of Policy in the
bill which states that "It is hereby declared the policy of the State that all citizens who become citizens of another country shall be
deemed not to have lost their Philippine citizenship under the conditions of this Act." He stressed that what the bill does is
recognize Philippine citizenship but says nothing about the other citizenship.
Rep. Locsin further pointed out that the problem of dual allegiance is created wherein a natural-born citizen of the Philippines
takes an oath of allegiance to another country and in that oath says that he abjures and absolutely renounces all allegiance to his
country of origin and swears allegiance to that foreign country. The original Bill had left it at this stage, he explained. In the
present measure, he clarified, a person is required to take an oath and the last he utters is one of allegiance to the country. He
then said that the problem of dual allegiance is no longer the problem of the Philippines but of the other foreign
country.
4
(Emphasis supplied.)
From the above excerpts of the legislative record, it is clear that the intent of the legislature in drafting Rep. Act No. 9225 is to do
away with the provision in Commonwealth Act No. 63
5
which takes away Philippine citizenship from natural-born Filipinos who
become naturalized citizens of other countries. What Rep. Act No. 9225 does is allow dual citizenship to natural-born Filipino
citizens who have lost Philippine citizenship by reason of their naturalization as citizens of a foreign country. On its face, it does
not recognize dual allegiance. By swearing to the supreme authority of the Republic, the person implicitly renounces his foreign
citizenship. Plainly, from Section 3, Rep. Act No. 9225 stayed clear out of the problem of dual allegiance and shifted the burden
of confronting the issue of whether or not there is dual allegiance to the concerned foreign country. What happens to the other
citizenship was not made a concern of Rep. Act No. 9225.
Petitioner likewise advances the proposition that although Congress has not yet passed any law on the matter of dual allegiance,
such absence of a law should not be justification why this Court could not rule on the issue. He further contends that while it is
true that there is no enabling law yet on dual allegiance, the Supreme Court, through Mercado v. Manzano,
6
already had drawn
up the guidelines on how to distinguish dual allegiance from dual citizenship.
7

For its part, the OSG counters that pursuant to Section 5, Article IV of the 1987 Constitution, dual allegiance shall be dealt with
by law. Thus, until a law on dual allegiance is enacted by Congress, the Supreme Court is without any jurisdiction to entertain
issues regarding dual allegiance.
8

To begin with, Section 5, Article IV of the Constitution is a declaration of a policy and it is not a self-executing provision. The
legislature still has to enact the law on dual allegiance. In Sections 2 and 3 of Rep. Act No. 9225, the framers were not
concerned with dual citizenship per se, but with the status of naturalized citizens who maintain their allegiance to their countries
of origin even after their naturalization.
9
Congress was given a mandate to draft a law that would set specific parameters of what
really constitutes dual allegiance.
10
Until this is done, it would be premature for the judicial department, including this Court, to
rule on issues pertaining to dual allegiance.
Neither can we subscribe to the proposition of petitioner that a law is not needed since the case of Mercado had already set the
guidelines for determining dual allegiance. Petitioner misreads Mercado. That case did not set the parameters of what constitutes
dual allegiance but merely made a distinction between dual allegiance and dual citizenship.
Moreover, in Estrada v. Sandiganbayan,
11
we said that the courts must assume that the legislature is ever conscious of the
borders and edges of its plenary powers, and passed laws with full knowledge of the facts and for the purpose of promoting what
is right and advancing the welfare of the majority. Hence, in determining whether the acts of the legislature are in tune with the
fundamental law, we must proceed with judicial restraint and act with caution and forbearance.
12
The doctrine of separation of
powers demands no less. We cannot arrogate the duty of setting the parameters of what constitutes dual allegiance when the
Constitution itself has clearly delegated the duty of determining what acts constitute dual allegiance for study and legislation by
Congress.
WHEREFORE, the petition is hereby DISMISSED for lack of merit.
SO ORDERED.
LEONARDO A. QUISUMBING
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
CONSUELO YNARES-SANTIAGO
Associate Justice
ANGELINA SANDOVAL-GUTIERREZ
Asscociate Justice

ANTONIO T. CARPIO
Associate Justice
(On leave)
MA. ALICIA AUSTRIA-MARTINEZ
Asscociate Justice
(On leave)
RENATO C. CORONA
Associate Justice

CONCHITA CARPIO MORALES
Asscociate Justice
ADOLFO S. AZCUNA
Associate Justice
DANTE O. TINGA
Asscociate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
CANCIO C. GARCIA
Asscociate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Asscociate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
1
Executive Order No. 292, also known as the "Administrative Code of 1987," Book IV, Title III, Chapter 1 (on the
Department of Justice), states:
x x x x
SEC. 3. Powers and Functions. - To accomplish its mandate, the Department shall have the following
powers and functions:
x x x x
(6) Provide immigration and naturalization regulatory services and implement the laws governing
citizenship and the admission and stay of aliens;
x x x x
2
Rollo, p. 9.
3
Id. at 48.
4
11 Journal, House of Representatives (August 26, 2003).
5
An Act Providing for the Ways in which Philippine Citizenship may be Lost or Reacquired. (Approved on October
21, 1936.)
x x x x
SECTION 1. How citizenship may be lost. - A Filipino citizen may lose his citizenship in any of the
following ways and/or events:
(1) By naturalization in a foreign country;
x x x x
6
G.R. No. 135083, May 26, 1999, 307 SCRA 630.
7
Id. at 643.
8
Rollo, pp. 55-56.
9
Supra note 7.
10
Records, Constitutional Commission 365 (July 8, 1986).
11
G.R. No. 148560, November 19, 2001, 369 SCRA 394.
12
Id. at 431.

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 198742 August 10, 2012
TEODORA SOBEJANA-CONDON, Petitioner,
vs.
COMMISSION ON ELECTIONS, LUIS M. BAUTISTA, ROBELITO V. PICAR and WILMA P. PAGADUAN,Respondents.
D E C I S I O N
REYES, J .:
Failure to renounce foreign citizenship in accordance with the exact tenor of Section 5(2) of Republic Act (R.A.) No. 9225 renders
a dual citizen ineligible to run for and thus hold any elective public office.
The Case
At bar is a special civil action for certiorari
1
under Rule 64 of the Rules of Court seeking to nullify Resolution
2
dated September 6,
2011 of the Commission on Elections (COMELEC) en banc in EAC (AE) No. A-44-2010. The assailed resolution (a) reversed the
Order
3
dated November 30, 2010 of COMELEC Second Division dismissing petitioners appeal; and (b) affirmed the consolidated
Decision
4
dated October 22, 2010 of the Regional Trial Court (RTC), Bauang, La Union, Branch 33, declaring petitioner Teodora
Sobejana-Condon (petitioner) disqualified and ineligible to her position as Vice-Mayor of Caba, La Union.
The Undisputed Facts
The petitioner is a natural-born Filipino citizen having been born of Filipino parents on August 8, 1944. On December 13, 1984,
she became a naturalized Australian citizen owing to her marriage to a certain Kevin Thomas Condon.
On December 2, 2005, she filed an application to re-acquire Philippine citizenship before the Philippine Embassy in Canberra,
Australia pursuant to Section 3 of R.A. No. 9225 otherwise known as the "Citizenship Retention and Re-Acquisition Act of
2003."
5
The application was approved and the petitioner took her oath of allegiance to the Republic of the Philippines on
December 5, 2005.
On September 18, 2006, the petitioner filed an unsworn Declaration of Renunciation of Australian Citizenshipbefore the
Department of Immigration and Indigenous Affairs, Canberra, Australia, which in turn issued the Order dated September 27,
2006 certifying that she has ceased to be an Australian citizen.
6

The petitioner ran for Mayor in her hometown of Caba, La Union in the 2007 elections. She lost in her bid. She again sought
elective office during the May 10, 2010 elections this time for the position of Vice-Mayor. She obtained the highest numbers of
votes and was proclaimed as the winning candidate. She took her oath of office on May 13, 2010.
Soon thereafter, private respondents Robelito V. Picar, Wilma P. Pagaduan
7
and Luis M. Bautista,
8
(private respondents) all
registered voters of Caba, La Union, filed separate petitions for quo warranto questioning the petitioners eligibility before the
RTC. The petitions similarly sought the petitioners disqualification from holding her elective post on the ground that she is a dual
citizen and that she failed to execute a "personal and sworn renunciation of any and all foreign citizenship before any public
officer authorized to administer an oath" as imposed by Section 5(2) of R.A. No. 9225.
The petitioner denied being a dual citizen and averred that since September 27, 2006, she ceased to be an Australian citizen.
She claimed that the Declaration of Renunciation of Australian Citizenship she executed in Australia sufficiently complied with
Section 5(2), R.A. No. 9225 and that her act of running for public office is a clear abandonment of her Australian citizenship.
Ruling of the RTC
In its consolidated Decision dated October 22, 2010, the trial court held that the petitioners failure to comply with Section 5(2) of
R.A. No. 9225 rendered her ineligible to run and hold public office. As admitted by the petitioner herself during trial, the personal
declaration of renunciation she filed in Australia was not under oath. The law clearly mandates that the document containing the
renunciation of foreign citizenship must be sworn before any public officer authorized to administer oath. Consequently, the
RTCs decision disposed as follows:
WHEREFORE, premises considered, the Court renders judgment in FAVOR of [private respondents] and AGAINST (petitioner):
1) DECLARING [petitioner] TEODORA SOBEJANA-CONDON, disqualified and ineligible to hold the office of Vice-Mayor of
Caba, La Union;
2) NULLIFYING her proclamation as the winning candidate for Vice-Mayor of said municipality; and
3) DECLARING the position of Vice-Mayor in said municipality vacant.
SO ORDERED.
9

Ruling of the COMELEC
The petitioner appealed to the COMELEC but the appeal was dismissed by the Second Division in its Order
10
dated November
30, 2010 for failure to pay the docket fees within the prescribed period. On motion for reconsideration, the appeal was reinstated
by the COMELEC en banc in its Resolution
11
dated September 6, 2011. In the same issuance, the substantive merits of the
appeal were given due course. The COMELEC en bancconcurred with the findings and conclusions of the RTC; it also granted
the Motion for Execution Pending Appealfiled by the private respondents.
The decretal portion of the resolution reads:
WHEREFORE, premises considered the Commission RESOLVED as it hereby RESOLVES as follows:
1. To DISMISS the instant appeal for lack of merit;
2. To AFFIRM the DECISION dated 22 October 2010 of the court a quo; and
3. To GRANT the Motion for Execution filed on November 12, 2010.
SO ORDERED.
12
(Emphasis supplied)
Hence, the present petition ascribing grave abuse of discretion to the COMELEC en banc.
The Petitioners Arguments
The petitioner contends that since she ceased to be an Australian citizen on September 27, 2006, she no longer held dual
citizenship and was only a Filipino citizen when she filed her certificate of candidacy as early as the 2007 elections. Hence, the
"personal and sworn renunciation of foreign citizenship" imposed by Section 5(2) of R.A. No. 9225 to dual citizens seeking
elective office does not apply to her.
She further argues that a sworn renunciation is a mere formal and not a mandatory requirement. In support thereof, she cites
portions of the Journal of the House of Representatives dated June 2 to 5, 2003 containing the sponsorship speech for House
Bill (H.B.) No. 4720, the precursor of R.A. No. 9225.
She claims that the private respondents are estopped from questioning her eligibility since they failed to do so when she filed
certificates of candidacy for the 2007 and 2010 elections.
Lastly, she disputes the power of the COMELEC en banc to: (a) take cognizance of the substantive merits of her appeal instead
of remanding the same to the COMELEC Second Division for the continuation of the appeal proceedings; and (b) allow the
execution pending appeal of the RTCs judgment.
The Issues
Posed for resolution are the following issues: I) Whether the COMELEC en banc may resolve the merits of an appeal after ruling
on its reinstatement; II) Whether the COMELEC en banc may order the execution of a judgment rendered by a trial court in an
election case; III) Whether the private respondents are barred from questioning the qualifications of the petitioner; and IV) For
purposes of determining the petitioners eligibility to run for public office, whether the "sworn renunciation of foreign citizenship" in
Section 5(2) of R.A. No. 9225 is a mere pro-forma requirement.
The Courts Ruling
I. An appeal may be simultaneously
reinstated and definitively resolved
by the COMELEC en banc in a
resolution disposing of a motion for
reconsideration.
The power to decide motions for reconsideration in election cases is arrogated unto the COMELEC en banc by Section 3, Article
IX-C of the Constitution, viz:
Sec. 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.
A complementary provision is present in Section 5(c), Rule 3 of the COMELEC Rules of Procedure, to wit:
Any motion to reconsider a decision, resolution, order or ruling of a Division shall be resolved by the Commission en banc except
motions on interlocutory orders of the division which shall be resolved by the division which issued the order.
Considering that the above cited provisos do not set any limits to the COMELEC en bancs prerogative in resolving a motion for
reconsideration, there is nothing to prevent the body from directly adjudicating the substantive merits of an appeal after ruling for
its reinstatement instead of remanding the same to the division that initially dismissed it.
We thus see no impropriety much more grave abuse of discretion on the part of the COMELEC en banc when it proceeded to
decide the substantive merits of the petitioners appeal after ruling for its reinstatement.
Further, records show that, in her motion for reconsideration before the COMELEC en banc, the petitioner not only proffered
arguments on the issue on docket fees but also on the issue of her eligibility. She even filed a supplemental motion for
reconsideration attaching therewith supporting documents
13
to her contention that she is no longer an Australian citizen. The
petitioner, after obtaining an unfavorable decision, cannot be permitted to disavow the en bancs exercise of discretion on the
substantial merits of her appeal when she herself invoked the same in the first place.
The fact that the COMELEC en banc had remanded similar appeals to the Division that initially dismissed them cannot serve as a
precedent to the disposition of the petitioners appeal. A decision or resolution of any adjudicating body can be disposed in
several ways. To sustain petitioners argument would be virtually putting a straightjacket on the COMELEC en bancs
adjudicatory powers.
More significantly, the remand of the appeal to the COMELEC Second Division would be unnecessarily circuitous and repugnant
to the rule on preferential disposition of quo warranto cases espoused in Rule 36, Section 15 of the COMELEC Rules of
Procedure.
14

II. The COMELEC en banc has the
power to order discretionary
execution of judgment.
We cannot subscribe to petitioners submission that the COMELEC en banc has no power to order the issuance of a writ of
execution and that such function belongs only to the court of origin.
There is no reason to dispute the COMELECs authority to order discretionary execution of judgment in view of the fact that the
suppletory application of the Rules of Court is expressly sanctioned by Section 1, Rule 41 of the COMELEC Rules of
Procedure.
15

Under Section 2, Rule 39 of the Rules of Court, execution pending appeal may be issued by an appellate court after the trial
court has lost jurisdiction. In Batul v. Bayron,
16
we stressed the import of the provision vis--vis election cases when we held that
judgments in election cases which may be executed pending appeal includes those decided by trial courts and those rendered by
the COMELEC whether in the exercise of its original or appellate jurisdiction.
III. Private respondents are not
estopped from questioning
petitioners eligibility to hold public
office.
The fact that the petitioners qualifications were not questioned when she filed certificates of candidacy for 2007 and 2010
elections cannot operate as an estoppel to the petition for quo warranto before the RTC.
Under the Batas Pambansa Bilang 881 (Omnibus Election Code), there are two instances where a petition questioning the
qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised, to wit:
(1) Before election, pursuant to Section 78 thereof which provides that:
Sec. 78. Petition to deny due course or to 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; and
(2) After election, pursuant to Section 253 thereof, viz:
Sec. 253. Petition for quo warranto. Any voter contesting the election of any Member of the Batasang
Pambansa, regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic
of the Philippines shall file a sworn petition for quo warranto with the Commission within ten days after the
proclamation of the results of the election. (Emphasis ours)
Hence, if a person qualified to file a petition to disqualify a certain candidate fails to file the petition within the twenty-five (25)-day
period prescribed by Section 78 of the Omnibus Election Code for whatever reasons, the elections laws do not leave him
completely helpless as he has another chance to raise the disqualification of the candidate by filing a petition for quo
warranto within ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the Omnibus
Election Code.
17

The above remedies were both available to the private respondents and their failure to utilize Section 78 of the Omnibus Election
Code cannot serve to bar them should they opt to file, as they did so file, a quo warranto petition under Section 253.
IV. Petitioner is disqualified from
running for elective office for
failure to renounce her Australian
citizenship in accordance with
Section 5(2) of R.A. No. 9225.
R.A. No. 9225 allows the retention and re-acquisition of Filipino citizenship for natural-born citizens who have lost their Philippine
citizenship
18
by taking an oath of allegiance to the Republic, thus:
Section 3. Retention of Philippine Citizenship. Any provision of law to the contrary notwithstanding, natural-born citizens of the
Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby
deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic:
"I, _____________________, solemnly swear (or affirm) that I will support and defend the Constitution of the Republic of the
Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of the Philippines; and I hereby
declare that I recognize and accept the supreme authority of the Philippines and will maintain true faith and allegiance thereto;
and that I imposed this obligation upon myself voluntarily without mental reservation or purpose of evasion."
Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their
Philippine citizenship upon taking the aforesaid oath.
The oath is an abbreviated repatriation process that restores ones Filipino citizenship and all civil and political rights and
obligations concomitant therewith, subject to certain conditions imposed in Section 5, viz:
Sec. 5. Civil and Political Rights and Liabilities. Those who retain or re-acquire Philippine citizenship under this Act shall enjoy
full civil and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and
the following conditions:
(1) Those intending to exercise their right of suffrage must meet the requirements under Section 1, Article V of the Constitution,
Republic Act No. 9189, otherwise known as "The Overseas Absentee Voting Act of 2003" and other existing laws;
(2) Those seeking elective public office in the Philippines shall meet the qualification for holding such public office as required by
the Constitution 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;
(3) Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and
its duly constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the
country where they took that oath;
(4) Those intending to practice their profession in the Philippines shall apply with the proper authority for a license or permit to
engage in such practice; and
(5) That right to vote or be elected or appointed to any public office in the Philippines cannot be exercised by, or extended to,
those who:
(a) are candidates for or are occupying any public office in the country of which they are
naturalized citizens; and/or
(b) are in active service as commissioned or non-commissioned officers in the armed forces of the
country which they are naturalized citizens. (Emphasis ours)
Under the provisions of the aforementioned law, the petitioner has validly re-acquired her Filipino citizenship when she took an
Oath of Allegiance to the Republic of the Philippines on December 5, 2005. At that point, she held dual citizenship, i.e.,
Australian and Philippine.
On September 18, 2006, or a year before she initially sought elective public office, she filed a renunciation of Australian
citizenship in Canberra, Australia. Admittedly, however, the same was not under oath contrary to the exact mandate of Section
5(2) that the renunciation of foreign citizenship must be sworn before an officer authorized to administer oath.
To obviate the fatal consequence of her inutile renunciation, the petitioner pleads the Court to interpret the "sworn renunciation of
any and all foreign citizenship" in Section 5(2) to be a mere pro forma requirement in conformity with the intent of the Legislature.
She anchors her submission on the statement made by Representative Javier during the floor deliberations on H.B. No. 4720,
the precursor of R.A. No. 9225.
At the outset, it bears stressing that the Courts duty to interpret the law according to its true intent is exercised only when the law
is ambiguous or of doubtful meaning. The first and fundamental duty of the Court is to apply the law. As such, when the law is
clear and free from any doubt, there is no occasion for construction or interpretation; there is only room for application.
19
Section
5(2) of R.A. No. 9225 is one such instance.
Ambiguity is a condition of admitting two or more meanings, of being understood in more than one way, or of referring to two or
more things at the same time. For a statute to be considered ambiguous, it must admit of two or more possible meanings.
20

The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC,
21
we declared its categorical and single
meaning: a Filipino American or any dual citizen cannot run for any elective public position in the Philippines unless he or she
personally swears to a renunciation of all foreign citizenship at the time of filing the certificate of candidacy. We also expounded
on the form of the renunciation and held that to be valid, the renunciation must be contained in an affidavit duly executed before
an officer of the law who is authorized to administer an oath stating in clear and unequivocal terms that affiant is renouncing all
foreign citizenship.
The same meaning was emphasized in Jacot v. Dal,
22
when we held that Filipinos re-acquiring or retaining their Philippine
citizenship under R.A. No. 9225 must explicitly renounce their foreign citizenship if they wish to run for elective posts in the
Philippines, thus:
The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those who
reacquired it, to make a personal and sworn renunciation of any and all foreign citizenship before a public officer authorized to
administer an oath simultaneous with or before the filing of the certificate of candidacy.
Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who have been naturalized as citizens of a foreign
country, but who reacquired or retained their Philippine citizenship (1) to take the oath of allegiance under Section 3 of Republic
Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally execute a personal and sworn
renunciation of any and all foreign citizenship before an authorized public officer prior or simultaneous to the filing of their
certificates of candidacy, to qualify as candidates in Philippine elections.
Clearly Section 5(2) of Republic Act No. 9225 (on the making of a personal and sworn renunciation of any and all foreign
citizenship) requires of the Filipinos availing themselves of the benefits under the said Act to accomplish an undertaking other
than that which they have presumably complied with under Section 3 thereof (oath of allegiance to the Republic of the
Philippines). This is made clear in the discussion of the Bicameral Conference Committee on Disagreeing Provisions of House
Bill No. 4720 and Senate Bill No. 2130 held on 18 August 2003 (precursors of Republic Act No. 9225), where the Hon. Chairman
Franklin Drilon and Hon. Representative Arthur Defensor explained to Hon. Representative Exequiel Javier that the oath of
allegiance is different from the renunciation of foreign citizenship;
x x x x
The intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine citizenship under Republic Act No.
9225 to take their oath of allegiance to the Republic of the Philippines, but also to explicitly renounce their foreign citizenship if
they wish to run for elective posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only have
one citizenship, namely, Philippine citizenship.
23
(Citation omitted and italics and underlining ours)
Hence, in De Guzman v. COMELEC,
24
we declared petitioner therein to be disqualified from running for the position of vice-
mayor for his failure to make a personal and sworn renunciation of his American citizenship.
We find no reason to depart from the mandatory nature infused by the above rulings to the phrase "sworn renunciation". The
language of the provision is plain and unambiguous. It expresses a single, definite, and sensible meaning and must thus be read
literally.
25
The foreign citizenship must be formally rejected through an affidavit duly sworn before an officer authorized to
administer oath.
It is conclusively presumed to be the meaning that the Legislature has intended to convey.
26
Even a resort to the Journal of the
House of Representatives invoked by the petitioner leads to the same inference, viz:
INTERPELLATION OF REP. JAVIER
Rep. Javier initially inquired whether under the Bill, dual citizenship is only limited to natural-born Filipinos and not to naturalized
Filipinos.
Rep. Libanan replied in the affirmative.
Rep. Javier subsequently adverted to Section 5 of the Bill which provides that natural-born Filipinos who have dual citizenship
shall continue to enjoy full civil and political rights. This being the case, he sought clarification as to whether they can indeed run
for public office provided that they renounce their foreign citizenship.
Rep. Libanan replied in the affirmative, citing that these citizens will only have to make a personal and sworn renunciation of
foreign citizenship before any authorized public officer.
Rep. Javier sought further clarification on this matter, citing that while the Bill provides them with full civil and political rights as
Filipino citizens, the measure also discriminates against them since they are required to make a sworn renunciation of their other
foreign citizenship if and when they run for public office. He thereafter proposed to delete this particular provision.
In his rejoinder, Rep. Libanan explained that this serves to erase all doubts regarding any issues that might be raised pertaining
to the citizenship of any candidate. He subsequently cited the case of Afroyim vs. Rusk, wherein the United States considered a
naturalized American still as an American citizen even when he cast his vote in Israel during one of its elections.
Rep. Javier however pointed out that the matter of voting is different because in voting, one is not required to renounce his
foreign citizenship. He pointed out that under the Bill, Filipinos who run for public office must renounce their foreign citizenship.
He pointed out further that this is a contradiction in the Bill.
Thereafter, Rep. Javier inquired whether Filipino citizens who had acquired foreign citizenship and are now entitled to reacquire
their Filipino citizenship will be considered as natural-born citizens. As such, he likewise inquired whether they will also be
considered qualified to run for the highest elective positions in the country.
Rep. Libanan replied in the affirmative, citing that the only requirement is that they make a sworn renunciation of their foreign
citizenship and that they comply with the residency and registration requirements as provided for in the Constitution.
Whereupon, Rep. Javier noted that under the Constitution, natural-born citizens are those who are citizens at the time of birth
without having to perform an act to complete or perfect his/her citizenship.
Rep. Libanan agreed therewith, citing that this is the reason why the Bill seeks the repeal of CA No. 63. The repeal, he said,
would help
Filipino citizens who acquired foreign citizenship to retain their citizenship. With regard then to Section 5 of the Bill, he explained
that the Committee had decided to include this provision because Section 18, Article XI of the Constitution provides for the
accountability of public officers.
In his rejoinder, Rep. Javier maintained that in this case, the sworn renunciation of a foreign citizenship will only become a pro
forma requirement.
On further queries of Rep. Javier, Rep. Libanan affirmed that natural-born Filipino citizens who became foreign citizens and who
have reacquired their Filipino citizenship under the Bill will be considered as natural-born citizens, and therefore qualified to run
for the presidency, the vice-presidency or for a seat in Congress. He also agreed with the observation of Rep. Javier that a
natural-born citizen is one who is a citizen of the country at the time of birth. He also explained that the Bill will, in effect, return to
a Filipino citizen who has acquired foreign citizenship, the status of being a natural-born citizen effective at the time he lost his
Filipino citizenship.
As a rejoinder, Rep. Javier opined that doing so would be discriminating against naturalized Filipino citizens and Filipino citizens
by election who are all disqualified to run for certain public offices. He then suggested that the Bill be amended by not
considering as natural-born citizens those Filipinos who had renounced their Filipino citizenship and acquired foreign citizenship.
He said that they should be considered as repatriated citizens.
In reply, Rep. Libanan assured Rep. Javier that the Committee will take note of the latters comments on the matter. He however
stressed that after a lengthy deliberation on the subject, the Committees on Justice, and Foreign Affairs had decided to revert
back to the status of being natural-born citizens those natural-born Filipino citizens who had acquired foreign citizenship but now
wished to reacquire their Filipino citizenship.
Rep. Javier then explained that a Filipina who loses her Filipino citizenship by virtue of her marriage to a foreigner can regain her
repatriated Filipino citizenship, upon the death of her husband, by simply taking her oath before the Department of Justice (DOJ).
Rep. Javier said that he does not oppose the Bill but only wants to be fair to other Filipino citizens who are not considered
natural-born. He reiterated that natural-born Filipino citizens who had renounced their citizenship by pledging allegiance to
another sovereignty should not be allowed to revert back to their status of being natural-born citizens once they decide to regain
their Filipino citizenship. He underscored that this will in a way allow such Filipinos to enjoy dual citizenship.
On whether the Sponsors will agree to an amendment incorporating the position of Rep. Javier, Rep. Libanan stated that this will
defeat the purpose of the Bill.
Rep. Javier disagreed therewith, adding that natural-born Filipino citizens who acquired foreign citizenships and later decided to
regain their Filipino citizenship, will be considered as repatriated citizens.
Rep. Libanan cited the case of Bengzon vs. HRET wherein the Supreme Court had ruled that only naturalized Filipino citizens
are not considered as natural-born citizens.
In reaction, Rep. Javier clarified that only citizens by election or those whose mothers are Filipino citizens under the 1935
Constitution and who elected Filipino citizenship upon reaching the age of maturity, are not deemed as natural-born citizens.
In response, Rep. Libanan maintained that in the Bengzon case, repatriation results in the recovery of ones original nationality
and only naturalized citizens are not considered as natural-born citizens.
On whether the Sponsors would agree to not giving back the status of being natural-born citizens to natural-born Filipino citizens
who acquired foreign citizenship, Rep. Libanan remarked that the Body in plenary session will decide on the matter.
27

The petitioner obviously espouses an isolated reading of Representative Javiers statement; she conveniently disregards the
preceding and succeeding discussions in the records.
The above-quoted excerpts of the legislative record show that Representative Javiers statement ought to be understood within
the context of the issue then being discussed, that is whether former natural-born citizens who re-acquire their Filipino
citizenship under the proposed law will revert to their original status as natural-born citizens and thus be qualified to run for
government positions reserved only to natural-born Filipinos, i.e. President, Vice-President and Members of the Congress.
It was Representative Javiers position that they should be considered as repatriated Filipinos and not as natural-born citizens
since they will have to execute a personal and sworn renunciation of foreign citizenship. Natural-born citizens are those who
need not perform an act to perfect their citizenship. Representative Libanan, however, maintained that they will revert to their
original status as natural-born citizens. To reconcile the renunciation imposed by Section 5(2) with the principle that natural-born
citizens are those who need not perform any act to perfect their citizenship, Representative Javier suggested that the sworn
renunciation of foreign citizenship be considered as a mere pro forma requirement.
Petitioners argument, therefore, loses its point. The "sworn renunciation of foreign citizenship" must be deemed a formal
requirement only with respect to the re-acquisition of ones status as a natural-born Filipino so as to override the effect of the
principle that natural-born citizens need not perform any act to perfect their citizenship. Never was it mentioned or even alluded
to that, as the petitioner wants this Court to believe, those who re-acquire their Filipino citizenship and thereafter run for public
office has the option of executing an unsworn affidavit of renunciation.
It is also palpable in the above records that Section 5 was intended to complement Section 18, Article XI of the Constitution on
public officers primary accountability of allegiance and loyalty, which provides:
Sec. 18. Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or
employee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be
dealt with by law.
An oath is a solemn declaration, accompanied by a swearing to God or a revered person or thing, that ones statement is true or
that one will be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the
promise is broken. The legal effect of an oath is to subject the person to penalties for perjury if the testimony is false.
28

Indeed, the solemn promise, and the risk of punishment attached to an oath ensures truthfulness to the prospective public
officers abandonment of his adopted state and promise of absolute allegiance and loyalty to the Republic of the Philippines.
To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial purposes; it would also accommodate
a mere qualified or temporary allegiance from government officers when the Constitution and the legislature clearly demand
otherwise.
Petitioner contends that the Australian Citizenship Act of 1948, under which she is already deemed to have lost her citizenship, is
entitled to judicial notice. We disagree.
Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven.
29
To prove a foreign law,
the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court
which reads:
Sec. 24. Proof of official record. The record of public documents referred to in paragraph (a) of Section 19, when admissible for
any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of
the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has
the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the
embassy or legation, consul general, consul, vice- consul, or consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (Emphasis
ours)
Sec. 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of the
evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the
case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court
having a seal, under the seal of such court.
The Court has admitted certain exceptions to the above rules and held that the existence of a foreign law may also be
established through: (1) a testimony under oath of an expert witness such as an attorney-at-law in the country where the foreign
law operates wherein he quotes verbatim a section of the law and states that the same was in force at the time material to the
facts at hand; and (2) likewise, in several naturalization cases, it was held by the Court that evidence of the law of a foreign
country on reciprocity regarding the acquisition of citizenship, although not meeting the prescribed rule of practice, may be
allowed and used as basis for favorable action, if, in the light of all the circumstances, the Court is "satisfied of the authenticity of
the written proof offered." Thus, in a number of decisions, mere authentication of the Chinese Naturalization Law by the Chinese
Consulate General of Manila was held to be a competent proof of that law.
30

The petitioner failed to prove the Australian Citizenship Act of 1948 through any of the above methods.1wphi 1 As uniformly observed
by the RTC and COMELEC, the petitioner failed to show proof of the existence of the law during trial. Also, the letter issued by
the Australian government showing that petitioner already renounced her Australian citizenship was unauthenticated hence, the
courts a quo acted judiciously in disregarding the same.
We are bound to arrive at a similar conclusion even if we were to admit as competent evidence the said letter in view of the
photocopy of a Certificate of Authentication issued by Consular Section of the Philippine Embassy in Canberra, Australia
attached to the petitioners motion for reconsideration.
We have stressed in Advocates and Adherents of Social Justice for School Teachers and Allied Workers (AASJS) Member v.
Datumanong
31
that the framers of R.A. No. 9225 did not intend the law to concern itself with the actual status of the other
citizenship.
This Court as the government branch tasked to apply the enactments of the legislature must do so conformably with the wisdom
of the latter sans the interference of any foreign law. If we were to read the Australian Citizen Act of 1948 into the application and
operation of R.A. No. 9225, we would be applying not what our legislative department has deemed wise to require. To do so
would be a brazen encroachment upon the sovereign will and power of the people of this Republic.
32

The petitioners act of running for public office does not suffice to serve as an effective renunciation of her Australian citizenship.
While this Court has previously declared that the filing by a person with dual citizenship of a certificate of candidacy is already
considered a renunciation of foreign citizenship,
33
such ruling was already adjudged superseded by the enactment of R.A. No.
9225 on August 29, 2003 which provides for the additional condition of a personal and sworn renunciation of foreign citizenship.
34

The fact that petitioner won the elections can not cure the defect of her candidacy. Garnering the most number of votes does not
validate the election of a disqualified candidate because the application of the constitutional and statutory provisions on
disqualification is not a matter of popularity.
35

In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their citizenship and seek elective office, to
execute a personal and sworn renunciation of any and all foreign citizenships before an authorized public officer prior to or
simultaneous to the filing of their certificates of candidacy, to qualify as candidates in Philippine elections.
36
The rule applies to all
those who have re-acquired their Filipino citizenship, like petitioner, without regard as to whether they are still dual citizens or not.
It is a pre-requisite imposed for the exercise of the right to run for public office.
Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-acquire their citizenship
under Section 3 of R.A. No. 9225. It is the operative act that restores their right to run for public office. The petitioner's failure to
comply therewith in accordance with the exact tenor of the law, rendered ineffectual the Declaration of Renunciation of Australian
Citizenship she executed on September 18, 2006. As such, she is yet to regain her political right to seek elective office. Unless
she executes a sworn renunciation of her Australian citizenship, she is ineligible to run for and hold any elective office in the
Philippines.
WHEREFORE, in view of all the foregoing, the petition is hereby DISMISSED. The Resolution dated September 6, 2011 of the
Commission on Elections en bane in EAC (AE) No. A-44-2010 is AFFIRMED in toto.
SO ORDERED.
BIENVENIDO L. REYES<br />Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Senior Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
ROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
JOSE CATRAL MENDOZA
Associate Justice
(On Official Leave)
MARIA LOURDES P.A. SERENO
*

Associate Justice
(On Official Leave)
ESTELA M. PERLAS-BERNABE
*

Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court.
ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)

Footnotes
*
On Official Leave.
1
Rollo, pp. 3-54.
2
Id. at 59-72.
3
Id. at 74-75.
4
Under the sala of Judge Rose Mary R. Molina-Alim; id. at 76-86.
5
AN ACT MAKING THE CITIZENSHIP OF PHILIPPINE CITIZENS WHO ACQUIRE FOREIGN CITIZENSHIP
PERMANENT. AMENDING FOR THE PURPOSE COMMONWEALTH ACT NO. 63, AS AMENDED AND FOR
OTHER PURPOSES. Enacted August 29, 2003.
6
Rollo, p. 79.
7
Docketed as SPL. CV. ACTION CASE No. 78-BG.
8
Docketed as SPL. CV. ACTION CASE No. 76-BG.
9
Rollo, p. 86.
10
Id. at 74-75.
11
Id. at 59-72.
12
Id. at 67-68.
13
(1) Photocopy of a Letter addressed to the COMELEC dated November 10, 2010 issued by the Department of
Immigration and Citizenship of Australia, containing an advise that as of September 27, 2006, the petitioner is no
longer an Australian citizen; and (2) photocopy of a Certificate of Authentication of the said letter dated November
23, 2010 issued by Grace Anne G. Bulos of the Consular Section of the Philippine Embassy in Canberra,
Australia. (Id. at 62.)
14
Rule 36, Sec. 15. Preferential Disposition of Quo Warranto Cases. The courts shall give preference to quo
warranto over all other cases, except those of habeas corpus.
15
"In the absence of any applicable provision in [said] Rules, the pertinent provisions of the Rules of Court in the
Philippines shall be applicable by analogy or in a suppletory character and effect."
16
468 Phil. 130 (2004).
17
Salcedo II v. COMELEC, 371 Phil. 377, 389 (1999).
18
1) natural-born citizens who have lost their Philippine citizenship by reason of their naturalization as citizens of
a foreign country; and 2) natural-born citizens of the Philippines who, after the effectivity of the law, become
citizens of a foreign country.
19
Abello v. Commissioner of Internal Revenue, 492 Phil. 303, 309-310 (2005).
20
Id. at 310.
21
G.R. No. 182701, July 23, 2008, 559 SCRA 696.
22
G.R. No. 179848, November 29, 2008, 572 SCRA 295.
23
Id. at 306-308.
24
G.R. No. 180048, June 19, 2009, 590 SCRA 149.
25
Lokin, Jr. v. COMELEC, G.R. Nos. 179431-32 and 180443, June 22, 2010, 621 SCRA 385, 406.
26
Id.
27
JOURNAL OF THE HOUSE OF REPRESENTATIVES, June 2 to 5, 2003; rollo, pp. 94-95.
28
Blacks Law Dictionary, Eighth Ed., p. 1101.
29
Manufacturers Hanover Trust Co. v. Guerrero, 445 Phil. 770, 777 (2003).
30
Asiavest Limited v. CA, 357 Phil 536, 551-552 (1998), citing Jovito Salonga, Private International Law, 101-102,
1995 ed..
31
G.R. No. 160869, May 11, 2007, 523 SCRA 108.
32
See Parado v. Republic of the Philippines, 86 Phil. 340, 344 (1950).
33
Valles v. COMELEC, 392 Phil. 327, 340 (2000); Mercado v. Manzano, 367 Phil. 132, 152-153 (1999).
34
Jacot v. Dal, supra note 22, at 308.
35
Lopez v. COMELEC, supra note 21, at 701.
36
Jacot v. Dal, supra note 22, at 306.

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 87193 June 23, 1989
JUAN GALLANOSA FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS AND THE LEAGUE OF MUNICIPALITIES, SORSOGON CHAPTER, HEREIN
REPRESENTED BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents.
J.L. Misa & Associates for petitioner.
Lladoc, Huab & Associates for private respondent.

CRUZ, J .:
Petitioner Juan G. Frivaldo was proclaimed governor-elect of the province of Sorsogon on January 22, 1988, and assumed office
in due time. On October 27, 1988, the League of Municipalities, Sorsogon Chapter (hereafter, League), represented by its
President, Salvador Estuye, who was also suing in his personal capacity, filed with the Commission on Elections a petition for the
annulment of Frivaldo; election and proclamation on the ground that he was not a Filipino citizen, having been naturalized in the
United States on January 20, 1983. In his answer dated May 22, 1988, Frivaldo admitted that he was naturalized in the United
States as alleged but pleaded the special and affirmative defenses that he had sought American citizenship only to protect
himself against President Marcos. His naturalization, he said, was "merely forced upon himself as a means of survival against the
unrelenting persecution by the Martial Law Dictator's agents abroad." He added that he had returned to the Philippines after the
EDSA revolution to help in the restoration of democracy. He also argued that the challenge to his title should be dismissed, being
in reality a quo warranto petition that should have been filed within ten days from his proclamation, in accordance with Section
253 of the Omnibus Election Code. The League, moreover, was not a proper party because it was not a voter and so could not
sue under the said section.
Frivaldo moved for a preliminary hearing on his affirmative defenses but the respondent Commission on Elections decided
instead by its Order of January 20, 1988, to set the case for hearing on the merits. His motion for reconsideration was denied in
another Order dated February 21, 1988. He then came to this Court in a petition forcertiorari and prohibition to ask that the said
orders be set aside on the ground that they had been rendered with grave abuse of discretion. Pending resolution of the petition,
we issued a temporary order against the hearing on the merits scheduled by the COMELEC and at the same time required
comments from the respondents.
In their Comment, the private respondents reiterated their assertion that Frivaldo was a naturalized American citizen and had not
reacquired Philippine citizenship on the day of the election on January 18, 1988. He was therefore not qualified to run for and be
elected governor. They also argued that their petition in the Commission on Elections was not really for quo warranto under
Section 253 of the Omnibus Election Code. The ultimate purpose was to prevent Frivaldo from continuing as governor, his
candidacy and election being null and void ab initio because of his alienage. Even if their petition were to be considered as one
for quo warranto, it could not have been filed within ten days from Frivaldo's proclamation because it was only in September 1988
that they received proof of his naturalization. And assuming that the League itself was not a proper party, Estuye himself, who
was suing not only for the League but also in his personal capacity, could nevertheless institute the suit by himself alone.
Speaking for the public respondent, the Solicitor General supported the contention that Frivaldo was not a citizen of the
Philippines and had not repatriated himself after his naturalization as an American citizen. As an alien, he was disqualified from
public office in the Philippines. His election did not cure this defect because the electorate of Sorsogon could not amend the
Constitution, the Local Government Code, and the Omnibus Election Code. He also joined in the private respondent's argument
that Section 253 of the Omnibus Election Code was not applicable because what the League and Estuye were seeking was not
only the annulment of the proclamation and election of Frivaldo. He agreed that they were also asking for the termination of
Frivaldo's incumbency as governor of Sorsogon on the ground that he was not a Filipino.
In his Reply, Frivaldo insisted that he was a citizen of the Philippines because his naturalization as an American citizen was not
"impressed with voluntariness." In support he cited the Nottebohm Case, [(1955 I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German
national's naturalization in Liechtenstein was not recognized because it had been obtained for reasons of convenience only. He
said he could not have repatriated himself before the 1988 elections because the Special Committee on Naturalization created
for the purpose by LOI No. 27C had not yet been organized then. His oath in his certificate of candidacy that he was a natural-
born citizen should be a sufficient act of repatriation. Additionally, his active participation in the 1987 congressional elections had
divested him of American citizenship under the laws of the United States, thus restoring his Philippine citizenship. He ended by
reiterating his prayer for the rejection of the move to disqualify him for being time-barred under Section 253 of the Omnibus
Election Code.
Considering the importance and urgency of the question herein raised, the Court has decided to resolve it directly instead of
allowing the normal circuitous route that will after all eventually end with this Court, albeit only after a, long delay. We cannot
permit this delay. Such delay will be inimical to the public interest and the vital principles of public office to be here applied.
It is true that the Commission on Elections has the primary jurisdiction over this question as the sole judge of all contests relating
to the election, returns and qualifications of the members of the Congress and elective provincial and city officials. However, the
decision on Frivaldo's citizenship has already been made by the COMELEC through its counsel, the Solicitor General, who
categorically claims that Frivaldo is a foreigner. We assume this stance was taken by him after consultation with the public
respondent and with its approval. It therefore represents the decision of the COMELEC itself that we may now review. Exercising
our discretion to interpret the Rules of Court and the Constitution, we shall consider the present petition as having been filed in
accordance with Article IX-A Section 7, of the Constitution, to challenge the aforementioned Orders of the COMELEC.
The basic question we must resolve is whether or not Juan G. Frivaldo was a citizen of the Philippines at the time of his election
on January 18, 1988, as provincial governor of Sorsogon. All the other issues raised in this petition are merely secondary to this
basic question.
The reason for this inquiry is the provision in Article XI, Section 9, of the Constitution that all public officials and employees owe
the State and the Constitution "allegiance at all times" and the specific requirement in Section 42 of the Local Government Code
that a candidate for local elective office must be inter alia a citizen of the Philippines and a qualified voter of the constituency
where he is running. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among other
qualifications, a citizen of the Philippines, this being an indispensable requirement for suffrage under Article V, Section 1, of the
Constitution.
In the certificate of candidacy he filed on November 19, 1987, Frivaldo described himself as a "natural-born" citizen of the
Philippines, omitting mention of any subsequent loss of such status. The evidence shows, however, that he was naturalized as a
citizen of the United States in 1983 per the following certification from the United States District Court, Northern District of
California, as duly authenticated by Vice Consul Amado P. Cortez of the Philippine Consulate General in San Francisco,
California, U.S.A.
OFFICE OF THE CLERK
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
September 23, 1988
TO WHOM IT MAY CONCERN:
Our records show that JUAN GALLANOSA FRIVALDO, born on October 20, 1915, was naturalized in this
Court on January 20, 1983, and issued Certificate of Naturalization No. 11690178.
Petition No. 280225.
Alien Registration No. A23 079 270.
Very truly yours,

WILLIAM L. WHITTAKER
Clerk
by:
(Sgd.)

ARACELI V. BAREN
Deputy Clerk
This evidence is not denied by the petitioner. In fact, he expressly admitted it in his answer. Nevertheless,
as earlier noted, he claims it was "forced" on him as a measure of protection from the persecution of the
Marcos government through his agents in the United States.
The Court sees no reason not to believe that the petitioner was one of the enemies of the Marcos
dictatorship. Even so, it cannot agree that as a consequence thereof he was coerced into embracing
American citizenship. His feeble suggestion that his naturalization was not the result of his own free and
voluntary choice is totally unacceptable and must be rejected outright.
There were many other Filipinos in the United States similarly situated as Frivaldo, and some of them
subject to greater risk than he, who did not find it necessary nor do they claim to have been coerced
to abandon their cherished status as Filipinos. They did not take the oath of allegiance to the United
States, unlike the petitioner who solemnly declared "on oath, that I absolutely and entirely renounce and
abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty of whom or which I
have heretofore been a subject or citizen," meaning in his case the Republic of the Philippines. The
martyred Ninoy Aquino heads the impressive list of those Filipinos in exile who, unlike the petitioner, held
fast to their Philippine citizenship despite the perils of their resistance to the Marcos regime.
The Nottebohm case cited by the petitioner invoked the international law principle of effective nationality
which is clearly not applicable to the case at bar. This principle is expressed in Article 5 of the Hague
Convention of 1930 on the Conflict of Nationality Laws as follows:
Art. 5. Within a third State a person having more than one nationality shall be treated as if
he had only one. Without prejudice to the application of its law in matters of personal
status and of any convention in force, a third State shall, of the nationalities which any
such person possesses, recognize exclusively in its territory either the nationality of the
country in which he is habitually and principally resident or the nationality of the country
with which in the circumstances he appears to be in fact most closely connected.
Nottebohm was a German by birth but a resident of Guatemala for 34 years when he applied for and
acquired naturalization in Liechtenstein one month before the outbreak of World War II. Many members of
his family and his business interests were in Germany. In 1943, Guatemala, which had declared war on
Germany, arrested Nottebohm and confiscated all his properties on the ground that he was a German
national. Liechtenstein thereupon filed suit on his behalf, as its citizen, against Guatemala. The
International Court of Justice held Nottebohm to be still a national of Germany, with which he was more
closely connected than with Liechtenstein.
That case is not relevant to the petition before us because it dealt with a conflict between the nationality
laws of two states as decided by a third state. No third state is involved in the case at bar; in fact, even
the United States is not actively claiming Frivaldo as its national. The sole question presented to us is
whether or not Frivaldo is a citizen of the Philippines under our own laws, regardless of other nationality
laws. We can decide this question alone as sovereign of our own territory, conformably to Section 1 of the
said Convention providing that "it is for each State to determine under its law who are its nationals."
It is also worth noting that Nottebohm was invoking his naturalization in Liechtenstein whereas in the
present case Frivaldo is rejecting his naturalization in the United States.
If he really wanted to disavow his American citizenship and reacquire Philippine citizenship, the petitioner
should have done so in accordance with the laws of our country. Under CA No. 63 as amended by CA
No. 473 and PD No. 725, Philippine citizenship may be reacquired by direct act of Congress, by
naturalization, or by repatriation.
While Frivaldo does not invoke either of the first two methods, he nevertheless claims he has reacquired
Philippine citizenship by virtue of a valid repatriation. He claims that by actively participating in the
elections in this country, he automatically forfeited American citizenship under the laws of the United
States. Such laws do not concern us here. The alleged forfeiture is between him and the United States as
his adopted country. It should be obvious that even if he did lose his naturalized American citizenship,
such forfeiture did not and could not have the effect of automatically restoring his citizenship in the
Philippines that he had earlier renounced. At best, what might have happened as a result of the loss of his
naturalized citizenship was that he became a stateless individual.
Frivaldo's contention that he could not have repatriated himself under LOI 270 because the Special
Committee provided for therein had not yet been constituted seems to suggest that the lack of that body
rendered his repatriation unnecessary. That is far-fetched if not specious Such a conclusion would open
the floodgates, as it were. It would allow all Filipinos who have renounced this country to claim back their
abandoned citizenship without formally rejecting their adoptedstate and reaffirming their allegiance to the
Philippines.
It does not appear that Frivaldo has taken these categorical acts. He contends that by simply filing his
certificate of candidacy he had, without more, already effectively recovered Philippine citizenship. But that
is hardly the formal declaration the law envisions surely, Philippine citizenship previously disowned is
not that cheaply recovered. If the Special Committee had not yet been convened, what that meant simply
was that the petitioner had to wait until this was done, or seek naturalization by legislative or judicial
proceedings.
The argument that the petition filed with the Commission on Elections should be dismissed for tardiness is
not well-taken. The herein private respondents are seeking to prevent Frivaldo from continuing to
discharge his office of governor because he is disqualified from doing so as a foreigner. Qualifications for
public office are continuing requirements and must be possessed not only at the time of appointment or
election or assumption of office but during the officer's entire tenure. Once any of the required
qualifications is lost, his title may be seasonably challenged. If, say, a female legislator were to marry a
foreigner during her term and by her act or omission acquires his nationality, would she have a right to
remain in office simply because the challenge to her title may no longer be made within ten days from her
proclamation? It has been established, and not even denied, that the evidence of Frivaldo's naturalization
was discovered only eight months after his proclamation and his title was challenged shortly thereafter.
This Court will not permit the anomaly of a person sitting as provincial governor in this country while owing
exclusive allegiance to another country. The fact that he was elected by the people of Sorsogon does not
excuse this patent violation of the salutary rule limiting public office and employment only to the citizens of
this country. The qualifications prescribed for elective office cannot be erased by the electorate alone.
The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they
mistakenly believed, as in this case, that the candidate was qualified. Obviously, this rule requires strict
application when the deficiency is lack of citizenship. If a person seeks to serve in the Republic of the
Philippines, he must owe his total loyalty to this country only, abjuring and renouncing all fealty and fidelity
to any other state.
It is true as the petitioner points out that the status of the natural-born citizen is favored by the
Constitution and our laws, which is all the more reason why it should be treasured like a pearl of great
price. But once it is surrendered and renounced, the gift is gone and cannot be lightly restored. This
country of ours, for all its difficulties and limitations, is like a jealous and possessive mother. Once
rejected, it is not quick to welcome back with eager arms its prodigal if repentant children. The returning
renegade must show, by an express and unequivocal act, the renewal of his loyalty and love.
WHEREFORE, the petition is DISMISSED and petitioner JUAN G. FRIVALDO is hereby declared not a
citizen of the Philippines and therefore DISQUALIFIED from serving as Governor of the Province of
Sorsogon. Accordingly, he is ordered to vacate his office and surrender the same to the duly elected Vice-
Governor of the said province once this decision becomes final and executory. The temporary restraining
order dated March 9, 1989, is LIFTED.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino,
Medialdea and Regalado, JJ., concur.
Sarmiento, J., took no part.
Cortes J., concurs in the result.

Separate Opinions
GUTIERREZ, JR., J ., concurring:
I concur in the pragmatic approach taken by the Court. I agree that when the higher interests of the State
are involved, the public good should supersede any procedural infinities which may affect a petition filed
with the Commission on Elections. I fail to see how the Court could allow a person who by his own
admissions is indubitably an alien to continue holding the office of Governor of any province.
It is an established rule of long standing that the period fixed by law for the filing of a protest whether
quo warranto or election contest is mandatory and jurisdictional.
1

As a rule, the quo warranto petition seeking to annul the petitioner's election and proclamation should
have been filed with ten days after the proclamation of election results.
2
The purpose of the law in not
allowing the filing of protests beyond the period fixed by law is to have a certain and definite time within
which petitions against the results of an election should be filed and to provide summary proceedings for
the settlement of such disputes.
3
The Rules of Court allow the Republic of the Philippines to file quo
warranto proceedings against any public officer who performs an act which works a forfeiture of his
office.
4
However, where the Solicitor General or the President feel that there are no good reasons to
commence quo warranto proceedings,
5
the Court should allow a person like respondent Estuye or his
league to bring the action.
I must emphasize, however, that my concurrence is limited to a clear case of an alien holding an elective
public office. And perhaps in a clear case of disloyalty to the Republic of the Philippines.
6
Where the
disqualification is based on age, residence, or any of the many grounds for ineligibility,
7
I believe that the
ten-day period should be applied strictly.
The pragmatic approach is also shown by the fact that the Court found it inexpedient to wait for the final
decision of COMELEC. This step is most unusual but considering the total lack of any serious grounds for
the petitioner's claim of having regained his Philippine citizenship, I am constrained to concur in the
procedure pro hac vice.

Separate Opinions
GUTIERREZ, JR., J ., concurring:
I concur in the pragmatic approach taken by the Court. I agree that when the higher interests of the State
are involved, the public good should supersede any procedural infinities which may affect a petition filed
with the Commission on Elections. I fail to see how the Court could allow a person who by his own
admissions is indubitably an alien to continue holding the office of Governor of any province.
It is an established rule of long standing that the period fixed by law for the filing of a protest whether
quo warranto or election contest is mandatory and jurisdictional.
1

As a rule, the quo warranto petition seeking to annul the petitioner's election and proclamation should
have been filed with ten days after the proclamation of election results.
2
The purpose of the law in not
allowing the filing of protests beyond the period fixed by law is to have a certain and definite time within
which petitions against the results of an election should be filed and to provide summary proceedings for
the settlement of such disputes.
3
The Rules of Court allow the Republic of the Philippines to file quo
warranto proceedings against any public officer who performs an act which works a forfeiture of his
office.
4
However, where the Solicitor General or the President feel that there are no good reasons to
commence quo warranto proceedings,
5
the Court should allow a person like respondent Estuye or his
league to bring the action.
I must emphasize, however, that my concurrence is limited to a clear case of an alien holding an elective
public office. And perhaps in a clear case of disloyalty to the Republic of the Philippines.
6
Where the
disqualification is based on age, residence, or any of the many grounds for ineligibility,
7
I believe that the
ten-day period should be applied strictly.
The pragmatic approach is also shown by the fact that the Court found it inexpedient to wait for the final
decision of COMELEC. This step is most unusual but considering the total lack of any serious grounds for
the petitioner's claim of having regained his Philippine citizenship, I am constrained to concur in the
procedure pro hac vice.
Footnotes
Gutierrez, Jr.
1 Ferrer v. Gutierrez and Lucot, 43 Phil. 795 [1922]; and Nisperos v. Araneta Diaz and
Flores, 47 Phil. 806 [1925].
2 Section 253, Omnibus Election Code, B.P. Blg. 881.
3 Municipal Council of Masantol v. Guevarra, 44 Phil. 580 [1923].
4 Rule 66, Section 1, Rules of Court.
5 Rule 66, Section 2.
6 Section 253, Omnibus Election Code; See Casin v. Caluag, 80 Phil. 758 [1948].
7 Among them are corrupting voters or election officials with money or other material
considerations (Section 68, B.P. 881); committing acts of terrorism to enhance one's
candidacy (id); over spending for election expenses (id); soliciting, receiving, or making
prohibited contributions (Sections 89, 95, 96, 97, and 104 of B.P. 881); the use of a void
certificate of candidacy (Section 78, id); engaging in partisan political activity outside of the
campaign period (Section 80, id); destroying or defacing lawful election propaganda
(Section 83, id); using prohibited forms of certificate election propaganda (Section 85, id);
unlawful use of mass media (Section 86, id); coercion by a public officer of subordinates to
campaign for or against a candidate (Section 261-d, id); using threats and intimidation to
force a person to campaign or to prevent him from campaigning for or against a candidate
(Section 261 -e, id); electioneering within the prohibited space around or inside a polling
place (Section 261 -k, id); use of public funds for certain election purposes (Section 261 -
u, id); and use of a void certificate of candidacy (Section 78). Under Section 2175 of the
Revised Administrative Code, certain persons like ecclesiastics and soldiers in the active
service are disqualified from running for elective municipal office.

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 104654 June 6, 1994
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
HON. ROSALIO G. DE LA ROSA, PRESIDING JUDGE OF THE REGIONAL TRIAL COURT, BRANCH 28, MANILA and
JUAN G. FRIVALDO, respondents.
G.R. No. 105715 June 6, 1994
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.
G.R. No. 105735 June 6, 1994
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.
The Solicitor General for petitioner in G.R. No. 104654.
Yolando F. Lim counsel for private respondent.

QUIASON, J .:
In Frivaldo v. Commission on Elections, 174 SCRA 245 (1989), this Court declared private respondent, Juan G. Frivaldo, an alien
and therefore disqualified from serving as Governor of the Province of Sorsogon.
Once more, the citizenship of private respondent is put in issue in
these petitions docketed as G.R. No.104654 and G.R. No. 105715 and G.R. No. 105735. The petitions were consolidated since
they principally involve the same issues and parties.
I
G.R. No. 104654
This is a petition for certiorari under Rule 45 of the Revised Rules of Court in relation to R.A. No. 5440 and Section 25 of the
Interim Rules, filed by the Republic of the Philippines: (1) to annul the Decision dated February 27, 1992 of the Regional Trial
Court, Branch 28, Manila, in SP Proc. No. 91-58645, which re-admitted private respondent as a Filipino citizen under the Revised
Naturalization Law (C.A. No. 63 as amended by C.A. No. 473); and (2) to nullify the oath of allegiance taken by private
respondent on February 27, 1992.
On September 20, 1991, petitioner filed a petition for naturalization captioned: "In the Matter of Petition of Juan G. Frivaldo to be
Re-admitted as a Citizen of the Philippines under Commonwealth Act No. 63" (Rollo, pp. 17-23).
In an Order dated October 7, 1991 respondent Judge set the petition for hearing on March 16, 1992, and directed the publication
of the said order and petition in the Official Gazette and a newspaper of general circulation, for three consecutive weeks, the last
publication of which should be at least six months before the said date of hearing. The order further required the posting of a
copy thereof and the petition in a conspicuous place in the Office of the Clerk of Court of the Regional Trial Court, Manila (Rollo,
pp. 24-26).
On January 14, 1992, private respondent filed a "Motion to Set Hearing Ahead of Schedule," where he manifested his intention to
run for public office in the May 1992 elections. He alleged that the deadline for filing the certificate of candidacy was March 15,
one day before the scheduled hearing. He asked that the hearing set on March 16 be cancelled and be moved to January 24
(Rollo, pp. 27-28).
The motion was granted in an Order dated January 24, 1992, wherein the hearing of the petition was moved to February 21,
1992. The said order was not published nor a copy thereof posted.
On February 21, the hearing proceeded with private respondent as the sole witness. He submitted the following documentary
evidence: (1) Affidavit of Publication of the Order dated October 7, 1991 issued by the publisher of The Philippine Star (Exh. "A");
(2) Certificate of Publication of the order issued
by the National Printing Office (Exh. "B"); (3) Notice of Hearing of Petition (Exh. "B-1"); (4) Photocopy of a Citation issued by the
National Press Club with private respondents picture (Exhs. "C" and "C-2"); (5) Certificate of Appreciation issued by the Rotary
Club of Davao (Exh. "D"); (6) Photocopy
of a Plaque of Appreciation issued by the Republican College, Quezon City (Exh. "E"); (7) Photocopy of a Plaque of Appreciation
issued by the Davao-Bicol Association (Exh. "F"); (8) Certification issued by the Records Management and Archives Office that
the record of birth of private respondent was not on file (Exh. "G"); and (8) Certificate of Naturalization issued by the United
States District Court (Exh. "H").
Six days later, on February 27, respondent Judge rendered the assailed Decision, disposing as follows:
WHEREFORE, the petition is GRANTED. Petitioner JUAN G. FRIVALDO, is re-admitted as a citizen of
the Republic of the Philippines by naturalization, thereby vesting upon him, all the rights and privileges of
a natural born Filipino citizen (Rollo, p. 33).
On the same day, private respondent was allowed to take his oath of allegiance before respondent Judge (Rollo, p. 34).
On March 16, a "Motion for Leave of Court to Intervene and to Admit Motion for Reconsideration" was filed by Quiterio H. Hermo.
He alleged that the proceedings were tainted with jurisdictional defects, and prayed for a new trial to conform with the
requirements of the Naturalization Law.
After receiving a copy of the Decision on March 18, 1992, the Solicitor General interposed a timely appeal directly with the
Supreme Court.
G.R. No. 105715
This is a petition for certiorari, mandamus with injunction under Rule 65 of the Revised Rules of Court in relation to Section 5(2)
of Article VIII of the Constitution with prayer for temporary restraining order filed by Raul R. Lee against the Commission on
Elections (COMELEC) and private respondent, to annul the en banc Resolution of the COMELEC, which dismissed his petition
docketed as SPC Case No. 92-273. The said petition sought to annul the proclamation of private respondent as Governor-elect
of the Province of Sorsogon.
Petitioner was the official candidate of the Laban ng Demokratikong Pilipino (LDP) for the position of governor of the Province of
Sorsogon in the May 1992 elections. Private respondent was the official candidate of the Lakas-National Union of Christian
Democrats (Lakas-NUCD) for the same position.
Private respondent was proclaimed winner on May 22, 1992.
On June 1, petitioner filed a petition with the COMELEC to annul the proclamation of private respondent as Governor-elect of the
Province of Sorsogon on the grounds: (1) that the proceedings and composition of the Provincial Board of Canvassers were not
in accordance with law; (2) that private respondent is an alien, whose grant of Philippine citizenship is being questioned by the
State in G.R. No. 104654; and (3) that private respondent is not a duly registered voter. Petitioner further prayed that the votes
case in favor of private respondent be considered as stray votes, and that he, on the basis of the remaining valid votes cast, be
proclaimed winner.
On June 10, the COMELEC issued the questioned en banc resolution which dismissed the petition for having been filed out of
time, citing Section 19 of R.A. No. 7166. Said section provides that the period to appeal a ruling of the board of canvassers on
questions affecting its composition or proceedings was three days.
In this petition, petitioner argues that the COMELEC acted with grave abuse of discretion when it ignored the fundamental issue
of private respondents disqualification in the guise of technicality.
Petitioner claims that the inclusion of private respondents name in the list of registered voters in Sta. Magdalena, Sorsogon was
invalid because at the time he registered as a voter in 1987, he was as American citizen.
Petitioner further claims that the grant of Filipino citizenship to private respondent is not yet conclusive because the case is still
on appeal before us.
Petitioner prays for: (1) the annulment of private respondents proclamation as Governor of the Province of Sorsogon; (2) the
deletion of private respondents name from the list of candidates for the position of governor; (3) the proclamation of the
governor-elect based on the remaining votes, after the exclusion of the votes for private respondent; (4) the issuance of a
temporary restraining order to enjoin private respondent from taking his oath and assuming office; and (5) the issuance of a writ
of mandamus to compel the COMELEC to resolve the pending disqualification case docketed as SPA Case No. 92-016, against
private respondent.
G.R. No. 105735
This is a petition for mandamus under Rule 65 of the Revised Rules of Court in relation to Section 5(2) of Article VIII of the
Constitution, with prayer for temporary restraining order. The parties herein are identical with the parties in G.R. No. 105715.
In substance, petitioner prays for the COMELECs immediate resolution of SPA Case No. 92-016, which is a petition for the
cancellation of private respondents certificate of candidacy filed on March 23, 1992 by Quiterio H. Hermo, the intervenor in G.R.
No. 104654 (Rollo, p. 18).
The petition for cancellation alleged: (1) that private respondent is an American citizen, and therefore ineligible to run as
candidate for the position of governor of the Province of Sorsogon; (2) that the trial courts decision
re-admitting private respondent as a Filipino citizen was fraught with legal infirmities rendering it null and void; (3) that assuming
the decision to be valid, private respondents oath of allegiance, which was taken on the same day the questioned decision was
promulgated, violated Republic Act No. 530, which provides for a two-year waiting period before the oath of allegiance can be
taken by the applicant; and (4) that the hearing of the petition on February 27, 1992, was held less than four months from the
date of the last publication of the order and petition. The petition prayed for the cancellation of private respondents certificate of
candidacy and the deletion of his name from the list of registered voters in Sta. Magdalena, Sorsogon.
In his answer to the petition for cancellation, private respondent denied the allegations therein and averred: (1) that Quiterio H.
Hermo, not being a candidate for the same office for which private respondent was aspiring, had no standing to file the petition;
(2) that the decision re-admitting him to Philippine citizenship was presumed to be valid; and (3) that no case had been filed to
exclude his name as a registered voter.
Raul R. Lee intervened in the petition for cancellation of private respondents certificate of candidacy (Rollo, p. 37.).
On May 13, 1992, said intervenor urged the COMELEC to decide the petition for cancellation, citing Section 78 of the Omnibus
Election Code, which provides that all petitions on matters involving the cancellation of a certificate of candidacy must be decided
"not later than fifteen days before election," and the case of Alonto v. Commission on Election, 22 SCRA 878 (1968), which ruled
that all pre-proclamation controversies should be summarily decided (Rollo,
p. 50).
The COMELEC concedes that private respondent has not yet reacquired his Filipino citizenship because the decision granting
him the same is not yet final and executory (Rollo, p. 63). However, it submits that the issue of disqualification of a candidate is
not among the grounds allowed in a
pre-proclamation controversy, like SPC Case No. 92-273. Moreover, the said petition was filed out of time.
The COMELEC contends that the preparation for the elections occupied much of its time, thus its failure to immediately resolve
SPA Case No. 92-016. It argues that under Section 5 of Rule 25 of the COMELEC Rules of Procedure, it is excused from
deciding a disqualification case within the period provided by law for reasons beyond its control. It also assumed that the same
action was subsequently abandoned by petitioner when he filed before it a petition for quo warranto docketed as EPC No. 92-35.
The quo warranto proceedings sought private respondents disqualification because of his American citizenship.
II
G.R. No. 104654
We shall first resolve the issue concerning private respondents citizenship.
In his comment to the States appeal of the decision granting him Philippine citizenship in G.R. No. 104654, private respondent
alleges that the precarious political atmosphere in the country during Martial Law compelled him to seek political asylum in the
United States, and eventually to renounce his Philippine citizenship.
He claims that his petition for naturalization was his only available remedy for his reacquisition of Philippine citizenship. He tried
to reacquire his Philippine citizenship through repatriation and direct act of Congress. However, he was later informed that
repatriation proceedings were limited to army deserters or Filipino women who had lost their citizenship by reason of their
marriage to foreigners (Rollo, pp. 49-50). His request to Congress for sponsorship of a bill allowing him to reacquire his Philippine
citizenship failed to materialize, notwithstanding the endorsement of several members of the House of Representatives in his
favor (Rollo, p. 51). He attributed this to the maneuvers of his political rivals.
He also claims that the re-scheduling of the hearing of the petition to an earlier date, without publication, was made without
objection from the Office of the Solicitor General. He makes mention that on the date of the hearing, the court was jam-packed.
It is private respondents posture that there was substantial compliance with the law and that the public was well-informed of his
petition for naturalization due to the publicity given by the media.
Anent the issue of the mandatory two-year waiting period prior to the taking of the oath of allegiance, private respondent
theorizes that the rationale of the law imposing the waiting period is to grant the public an opportunity to investigate the
background of the applicant and to oppose the grant of Philippine citizenship if there is basis to do so. In his case, private
respondent alleges that such requirement may be dispensed with, claiming that his life, both private and public, was well-known.
Private respondent cites his achievement as a freedom fighter and a former Governor of the Province of Sorsogon for six terms.
The appeal of the Solicitor General in behalf of the Republic of the Philippines is meritorious. The naturalization proceedings in
SP Proc. No. 91-58645 was full of procedural flaws, rendering the decision an anomaly.
Private respondent, having opted to reacquire Philippine citizenship thru naturalization under the Revised Naturalization Law, is
duty bound to follow the procedure prescribed by the said law. It is not for an applicant to decide for himself and to select the
requirements which he believes, even sincerely, are applicable to his case and discard those which be believes are inconvenient
or merely of nuisance value. The law does not distinguish between an applicant who was formerly a Filipino citizen and one who
was never such a citizen. It does not provide a special procedure for the reacquisition of Philippine citizenship by former Filipino
citizens akin to the repatriation of a woman who had lost her Philippine citizenship by reason of her marriage to an alien.
The trial court never acquired jurisdiction to hear the petition for naturalization of private respondent. The proceedings conducted,
the decision rendered and the oath of allegiance taken therein, are null and void for failure to comply with the publication and
posting requirements under the Revised Naturalization Law.
Under Section 9 of the said law, both the petition for naturalization and the order setting it for hearing must be published once a
week for three consecutive weeks in the Official Gazette and a newspaper of general circulation respondent cites his
achievements as a freedom fighter and a former Governor of the Province of Sorsogon for six terms.
The appeal of the Solicitor General in behalf of the Republic of
the Philippines is meritorious. The naturalization proceedings in SP Proc.
No. 91-58645 was full of procedural flaws, rendering the decision an anomaly.
Private respondent, having opted to reacquire Philippine citizenship thru naturalization under the Revised Naturalization Law, is
duty bound to follow the procedure prescribed by the said law. It is not for an applicant to decide for himself and to select the
requirements which he believes, even sincerely, are applicable to his case and discard those which he believes are inconvenient
or merely of nuisance value. The law does not distinguish between an applicant who was formerly a Filipino citizen and one who
was never such a citizen. It does not provide a special procedure for the reacquisition of Philippine citizenship by former Filipino
citizens akin to the repatriation of a woman who had lost her Philippine citizenship by reason of her marriage to an alien.
The trial court never acquired jurisdiction to hear the petition for naturalization of private respondent. The proceedings conducted,
the decision rendered and the oath of allegiance taken therein, are null and void for failure to comply with the publication and
posting requirements under the Revised Naturalization Law.
Under Section 9 of the said law, both the petition for naturalization and the order setting it for hearing must be published once a
week for three consecutive weeks in the Official Gazette and a newspaper of general circulation. Compliance therewith is
jurisdictional (Po Yi Bo v. Republic, 205 SCRA 400 [1992]). Moreover, the publication and posting of the petition and the order
must be in its full test for the court to acquire jurisdiction (Sy v. Republic, 55 SCRA 724 [1974]).
The petition for naturalization lacks several allegations required by Sections 2 and 6 of the Revised Naturalization Law,
particularly: (1) that the petitioner is of good moral character; (2) that he resided continuously in the Philippines for at least ten
years; (3) that he is able to speak and write English and any one of the principal dialects; (4) that he will reside continuously in
the Philippines from the date of the filing of the petition until his admission to Philippine citizenship; and (5) that he has filed a
declaration of intention or if he is excused from said filing, the justification therefor.
The absence of such allegations is fatal to the petition (Po Yi Bi v. Republic, 205 SCRA 400 [1992]).
Likewise, the petition is not supported by the affidavit of at least two credible persons who vouched for the good moral character
of private respondent as required by Section 7 of the Revised Naturalization Law. Private respondent also failed to attach a copy
of his certificate of arrival to the petition as required by Section 7 of the said law.
The proceedings of the trial court was marred by the following irregularities: (1) the hearing of the petition was set ahead of the
scheduled date of hearing, without a publication of the order advancing the date of hearing, and the petition itself; (2) the petition
was heard within six months from the last publication of the petition; (3) petitioner was allowed to take his oath of allegiance
before the finality of the judgment; and (4) petitioner took his oath of allegiance without observing the two-year waiting period.
A decision in a petition for naturalization becomes final only after 30 days from its promulgation and, insofar as the Solicitor
General is concerned, that period is counted from the date of his receipt of the copy of the decision (Republic v. Court of First
Instance of Albay, 60 SCRA 195 [1974]).
Section 1 of R.A. No. 530 provides that no decision granting citizenship in naturalization proceedings shall be executory until
after two years from its promulgation in order to be able to observe if: (1) the applicant has left the country; (2) the applicant has
dedicated himself continuously to a lawful calling or profession; (3) the applicant has not been convicted of any offense or
violation of government promulgated rules; and (4) the applicant has committed any act prejudicial to the interest of the country
or contrary to government announced policies.
Even discounting the provisions of R.A. No. 530, the courts cannot implement any decision granting the petition for naturalization
before its finality.
G.R. No. 105715
In view of the finding in G.R. No. 104654 that private respondent is not yet a Filipino citizen, we have to grant the petition in G.R.
No. 105715 after treating it as a petition for certiorari instead of a petition for mandamus. Said petition assails the en
banc resolution of the COMELEC, dismissing SPC Case No. 92-273, which in turn is a petition to annul private respondents
proclamation on three grounds: 1) that the proceedings and composition of the Provincial Board of Canvassers were not in
accordance with law; 2) that private respondent is an alien, whose grant of Filipino citizenship is being questioned by the State in
G.R. No. 104654; and 3) that private respondent is not a duly registered voter. The COMELEC dismissed the petition on the
grounds that it was filed outside the three-day period for questioning the proceedings
and composition of the Provincial Board of Canvassers under Section 19 of R.A. No. 7166.
The COMELEC failed to resolve the more serious issue the disqualification of private respondent to be proclaimed Governor
on grounds of lack of Filipino citizenship. In this aspect, the petition is one for quo warranto. In Frivaldo v. Commission on
Elections, 174 SCRA 245 (1989), we held that a petition for quo warranto, questioning the respondents title and seeking to
prevent him from holding office as Governor for alienage, is not covered by the ten-day period for appeal prescribed in Section
253 of the Omnibus Election Code. Furthermore, we explained that "qualifications for public office are continuing requirements
and must be possessed not only at the time of appointment or election or assumption of office but during the officers entire
tenure; once any of the required qualification is lost, his title may be seasonably challenged."
Petitioners argument, that to unseat him will frustrate the will of the electorate, is untenable. Both the Local Government Code
and the Constitution require that only Filipino citizens can run and be elected to public office. We can only surmise that the
electorate, at the time they voted for private respondent, was of the mistaken belief that he had legally reacquired Filipino
citizenship.
Petitioner in G.R. No. 105715, prays that the votes cast in favor of private respondent be considered stray and that he, being the
candidate obtaining the second highest number of votes, be declared winner. In Labo, Jr. v. COMELEC, 176 SCRA 1 (1989), we
ruled that where the candidate who obtained the highest number of votes is later declared to be disqualified to hold the office to
which he was elected, the candidate who garnered the second highest number of votes is not entitled to be declared winner (See
also Geronimo v. Ramos, 136 SCRA 435 [1985]; Topacio v. Paredes, 23 Phil. 238 [1912]).
G.R. No. 105735
In view of the discussions of G.R. No. 104654 and G.R. No. 105715, we find the petition in G.R. No. 105735 moot and academic.
WHEREFORE, the petitions in G.R. No. 104654 and G.R. No. 105715 are both GRANTED while the petition in G.R. No. 105735
is DISMISSED. Private respondent is declared NOT a citizen of the Philippines and therefore DISQUALIFIED from continuing to
serve as GOVERNOR of the Province of Sorsogon. He is ordered to VACATE his office and to SURRENDER the same to the
Vice-Governor of the Province of Sorsogon once this decision becomes final and executory. No pronouncement as to costs.
SO ORDERED.
Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug and Kapunan, JJ., concur.
Narvasa, C.J. and Cruz, J., took no part.

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Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-43938 April 15, 1988
REPUBLIC OF THE PHILIPPINES (DIRECTOR OF FOREST DEVELOPMENT), petitioner,
vs.
HON. COURT OF APPEALS (THIRD DIVISION) and JOSE Y. DE LA ROSA, respondents.
G.R. No. L-44081 April 15, 1988
BENGUET CONSOLIDATED, INC., petitioner,
vs.
HON. COURT OF APPEALS, JOSE Y. DE LA ROSA, VICTORIA, BENJAMIN and EDUARDO, all surnamed DE LA ROSA,
represented by their father JOSE Y. DE LA ROSA, respondents.
G.R. No. L-44092 April 15, 1988
ATOK-BIG WEDGE MINING COMPANY, petitioner,
vs.
HON. COURT OF APPEALS, JOSE Y. DE LA ROSA, VICTORlA, BENJAMIN and EDUARDO, all surnamed DE LA ROSA,
represented by their father, JOSE Y. DE LA ROSA, respondents.

CRUZ, J .:
The Regalian doctrine reserves to the State all natural wealth that may be found in the bowels of the earth even if the land where
the discovery is made be private.
1
In the cases at bar, which have been consolidated because they pose a common issue, this
doctrine was not correctly applied.
These cases arose from the application for registration of a parcel of land filed on February 11, 1965, by Jose de la Rosa on his
own behalf and on behalf of his three children, Victoria, Benjamin and Eduardo. The land, situated in Tuding, Itogon, Benguet
Province, was divided into 9 lots and covered by plan Psu-225009. According to the application, Lots 1-5 were sold to Jose de la
Rosa and Lots 6-9 to his children by Mamaya Balbalio and Jaime Alberto, respectively, in 1964.
2

The application was separately opposed by Benguet Consolidated, Inc. as to Lots 1-5, Atok Big Wedge Corporation, as to
Portions of Lots 1-5 and all of Lots 6-9, and by the Republic of the Philippines, through the Bureau of Forestry Development, as
to lots 1-9.
3

In support of the application, both Balbalio and Alberto testified that they had acquired the subject land by virtue of prescription
Balbalio claimed to have received Lots 1-5 from her father shortly after the Liberation. She testified she was born in the land,
which was possessed by her parents under claim of ownership.
4
Alberto said he received Lots 6-9 in 1961 from his mother, Bella
Alberto, who declared that the land was planted by Jaime and his predecessors-in-interest to bananas, avocado, nangka and
camote, and was enclosed with a barbed-wire fence. She was corroborated by Felix Marcos, 67 years old at the time, who
recalled the earlier possession of the land by Alberto's father.
5
Balbalio presented her tax declaration in 1956 and the realty tax
receipts from that year to 1964,
6
Alberto his tax declaration in 1961 and the realty tax receipts from that year to 1964.
7

Benguet opposed on the ground that the June Bug mineral claim covering Lots 1-5 was sold to it on September 22, 1934, by the
successors-in-interest of James Kelly, who located the claim in September 1909 and recorded it on October 14, 1909. From the
date of its purchase, Benguet had been in actual, continuous and exclusive possession of the land in concept of owner, as
evidenced by its construction of adits, its affidavits of annual assessment, its geological mappings, geological samplings and
trench side cuts, and its payment of taxes on the land.
8

For its part, Atok alleged that a portion of Lots 1-5 and all of Lots 6-9 were covered by the Emma and Fredia mineral claims
located by Harrison and Reynolds on December 25, 1930, and recorded on January 2, 1931, in the office of the mining recorder
of Baguio. These claims were purchased from these locators on November 2, 1931, by Atok, which has since then been in open,
continuous and exclusive possession of the said lots as evidenced by its annual assessment work on the claims, such as the
boring of tunnels, and its payment of annual taxes thereon.
9

The location of the mineral claims was made in accordance with Section 21 of the Philippine Bill of 1902 which provided that:
SEC. 21. All valuable mineral deposits in public lands in the philippine Islands both surveyed and
unsurveyed are hereby declared to be free and open to exploration, occupation and purchase and the
land in which they are found to occupation and purchase by the citizens of the United States, or of said
islands.
The Bureau of Forestry Development also interposed its objection, arguing that the land sought to be registered was covered by
the Central Cordillera Forest Reserve under Proclamation No. 217 dated February 16, 1929. Moreover, by reason of its nature, it
was not subject to alienation under the Constitutions of 1935 and 1973.
10

The trial court * denied the application, holding that the applicants had failed to prove their claim of possession and ownership of
the land sought to be registered.
11
The applicants appealed to the respondent court, * which reversed the trial court and
recognized the claims of the applicant, but subject to the rights of Benguet and Atok respecting their mining claims.
12
In other
words, the Court of Appeals affirmed the surface rights of the de la Rosas over the land while at the same time reserving the sub-
surface rights of Benguet and Atok by virtue of their mining claims.
Both Benguet and Atok have appealed to this Court, invoking their superior right of ownership. The Republic has filed its own
petition for review and reiterates its argument that neither the private respondents nor the two mining companies have any valid
claim to the land because it is not alienable and registerable.
It is true that the subject property was considered forest land and included in the Central Cordillera Forest Reserve, but this did
not impair the rights already vested in Benguet and Atok at that time. The Court of Appeals correctly declared that:
There is no question that the 9 lots applied for are within the June Bug mineral claims of Benguet and the
"Fredia and Emma" mineral claims of Atok. The June Bug mineral claim of plaintiff Benguet was one of
the 16 mining claims of James E. Kelly, American and mining locator. He filed his declaration of the
location of the June Bug mineral and the same was recorded in the Mining Recorder's Office on October
14, 1909. All of the Kelly claims ha subsequently been acquired by Benguet Consolidated, Inc. Benguet's
evidence is that it had made improvements on the June Bug mineral claim consisting of mine tunnels prior
to 1935. It had submitted the required affidavit of annual assessment. After World War II, Benguet
introduced improvements on mineral claim June Bug, and also conducted geological mappings,
geological sampling and trench side cuts. In 1948, Benguet redeclared the "June Bug" for taxation and
had religiously paid the taxes.
The Emma and Fredia claims were two of the several claims of Harrison registered in 1931, and which
Atok representatives acquired. Portions of Lots 1 to 5 and all of Lots 6 to 9 are within the Emma and
Fredia mineral claims of Atok Big Wedge Mining Company.
The June Bug mineral claim of Benguet and the Fredia and Emma mineral claims of Atok having been
perfected prior to the approval of the Constitution of the Philippines of 1935, they were removed from the
public domain and had become private properties of Benguet and Atok.
It is not disputed that the location of the mining claim under consideration was perfected
prior to November 15, 1935, when the Government of the Commonwealth was
inaugurated; and according to the laws existing at that time, as construed and applied by
this court in McDaniel v. Apacible and Cuisia (42 Phil. 749), a valid location of a mining
claim segregated the area from the public domain. Said the court in that case: The
moment the locator discovered a valuable mineral deposit on the lands located, and
perfected his location in accordance with law, the power of the United States Government
to deprive him of the exclusive right to the possession and enjoyment of the located claim
was gone, the lands had become mineral lands and they were exempted from lands that
could be granted to any other person. The reservations of public lands cannot be made so
as to include prior mineral perfected locations; and, of course, if a valid mining location is
made upon public lands afterwards included in a reservation, such inclusion or reservation
does not affect the validity of the former location. By such location and perfection, the land
located is segregated from the public domain even as against the Government. (Union Oil
Co. v. Smith, 249 U.S. 337; Van Mess v. Roonet, 160 Cal. 131; 27 Cyc. 546).
"The legal effect of a valid location of a mining claim is not only to segregate the area from
the public domain, but to grant to the locator the beneficial ownership of the claim and the
right to a patent therefor upon compliance with the terms and conditions prescribed by
law. Where there is a valid location of a mining claim, the area becomes segregated from
the public domain and the property of the locator." (St. Louis Mining & Milling Co. v.
Montana Mining Co., 171 U.S. 650; 655; 43 Law ed., 320, 322.) "When a location of a
mining claim is perfected it has the effect of a grant by the United States of the right of
present and exclusive possession, with the right to the exclusive enjoyment of all the
surface ground as well as of all the minerals within the lines of the claim, except as limited
by the extralateral right of adjoining locators; and this is the locator's right before as well
as after the issuance of the patent. While a lode locator acquires a vested property right
by virtue of his location made in compliance with the mining laws, the fee remains in the
government until patent issues."(18 R.C.L. 1152) (Gold Creek Mining Corporation v. Hon.
Eulogio Rodriguez, Sec. of Agriculture and Commerce, and Quirico Abadilla, Director of
the Bureau of Mines, 66 Phil. 259, 265-266)
It is of no importance whether Benguet and Atok had secured a patent for as held in the Gold Creek
Mining Corp. Case, for all physical purposes of ownership, the owner is not required to secure a patent as
long as he complies with the provisions of the mining laws; his possessory right, for all practical purposes
of ownership, is as good as though secured by patent.
We agree likewise with the oppositors that having complied with all the requirements of the mining laws, the
claims were removed from the public domain, and not even the government of the Philippines can take away
this right from them. The reason is obvious. Having become the private properties of the oppositors, they
cannot be deprived thereof without due process of law.
13

Such rights were not affected either by the stricture in the Commonwealth Constitution against the alienation of all lands of the
public domain except those agricultural in nature for this was made subject to existing rights. Thus, in its Article XIII, Section 1, it
was categorically provided that:
SEC. 1. All agricultural, timber and mineral lands of the public domain, waters, minerals, coal, petroleum
and other mineral oils, all forces of potential energy and other natural resources of the Philipppines
belong to the State, and their disposition, exploitation, development, or utilization shall be limited to
citizens of the Philippines or to corporations or associations at least 60% of the capital of which is owned
by such citizens, subject to any existing right, grant, lease or concession at the time of the inauguration of
the government established under this Constitution. Natural resources with the exception of public
agricultural lands, shall not be alienated, and no license, concession, or lease for the exploitation,
development or utilization of any of the natural resources shall be granted for a period exceeding 25
years, except as to water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, in which case beneficial use may be the measure and the limit of the grant.
Implementing this provision, Act No. 4268, approved on November 8, 1935, declared:
Any provision of existing laws, executive order, proclamation to the contrary notwithstanding, all locations
of mining claim made prior to February 8, 1935 within lands set apart as forest reserve under Sec. 1826
of the Revised Administrative Code which would be valid and subsisting location except to the existence
of said reserve are hereby declared to be valid and subsisting locations as of the date of their respective
locations.
The perfection of the mining claim converted the property to mineral land and under the laws then in force removed it from the
public domain.
14
By such act, the locators acquired exclusive rights over the land, against even the government, without need of
any further act such as the purchase of the land or the obtention of a patent over it.
15
As the land had become the private
property of the locators, they had the right to transfer the same, as they did, to Benguet and Atok.
It is true, as the Court of Appeals observed, that such private property was subject to the "vicissitudes of ownership," or even to
forfeiture by non-user or abandonment or, as the private respondents aver, by acquisitive prescription. However, the method
invoked by the de la Rosas is not available in the case at bar, for two reasons.
First, the trial court found that the evidence of open, continuous, adverse and exclusive possession submitted by the applicants
was insufficient to support their claim of ownership. They themselves had acquired the land only in 1964 and applied for its
registration in 1965, relying on the earlier alleged possession of their predecessors-in-interest.
16
The trial judge, who had the
opportunity to consider the evidence first-hand and observe the demeanor of the witnesses and test their credibility was not
convinced. We defer to his judgment in the absence of a showing that it was reached with grave abuse of discretion or without
sufficient basis.
17

Second, even if it be assumed that the predecessors-in-interest of the de la Rosas had really been in possession of the subject
property, their possession was not in the concept of owner of the mining claim but of the property asagricultural land, which it was
not. The property was mineral land, and they were claiming it as agricultural land. They were not disputing the lights of the mining
locators nor were they seeking to oust them as such and to replace them in the mining of the land. In fact, Balbalio testified that
she was aware of the diggings being undertaken "down below"
18
but she did not mind, much less protest, the same although she
claimed to be the owner of the said land.
The Court of Appeals justified this by saying there is "no conflict of interest" between the owners of the surface rights and the
owners of the sub-surface rights. This is rather doctrine, for it is a well-known principle that the owner of piece of land has rights
not only to its surface but also to everything underneath and the airspace above it up to a reasonable height.
19
Under the
aforesaid ruling, the land is classified as mineral underneath and agricultural on the surface, subject to separate claims of title.
This is also difficult to understand, especially in its practical application.
Under the theory of the respondent court, the surface owner will be planting on the land while the mining locator will be boring
tunnels underneath. The farmer cannot dig a well because he may interfere with the operations below and the miner cannot blast
a tunnel lest he destroy the crops above. How deep can the farmer, and how high can the miner, go without encroaching on each
other's rights? Where is the dividing line between the surface and the sub-surface rights?
The Court feels that the rights over the land are indivisible and that the land itself cannot be half agricultural and half mineral. The
classification must be categorical; the land must be either completely mineral or completely agricultural. In the instant case, as
already observed, the land which was originally classified as forest land ceased to be so and became mineral and completely
mineral once the mining claims were perfected.
20
As long as mining operations were being undertaken thereon, or
underneath, it did not cease to be so and become agricultural, even if only partly so, because it was enclosed with a fence and
was cultivated by those who were unlawfully occupying the surface.
What must have misled the respondent court is Commonwealth Act No. 137, providing as follows:
Sec. 3. All mineral lands of the public domain and minerals belong to the State, and their disposition,
exploitation, development or utilization, shall be limited to citizens of the Philippines, or to corporations, or
associations, at least 60% of the capital of which is owned by such citizens, subject to any existing right,
grant, lease or concession at the time of the inauguration of government established under the
Constitution.
SEC. 4. The ownership of, and the right to the use of land for agricultural, industrial, commercial,
residential, or for any purpose other than mining does not include the ownership of, nor the right to extract
or utilize, the minerals which may be found on or under the surface.
SEC. 5. The ownership of, and the right to extract and utilize, the minerals included within all areas for
which public agricultural land patents are granted are excluded and excepted from all such patents.
SEC. 6. The ownership of, and the right to extract and utilize, the minerals included within all areas for
which Torrens titles are granted are excluded and excepted from all such titles.
This is an application of the Regalian doctrine which, as its name implies, is intended for the benefit of the State, not of private
persons. The rule simply reserves to the State all minerals that may be found in public and even private land devoted to
"agricultural, industrial, commercial, residential or (for) any purpose other than mining." Thus, if a person is the owner of
agricultural land in which minerals are discovered, his ownership of such land does not give him the right to extract or utilize the
said minerals without the permission of the State to which such minerals belong.
The flaw in the reasoning of the respondent court is in supposing that the rights over the land could be used for both mining and
non-mining purposes simultaneously. The correct interpretation is that once minerals are discovered in the land, whatever the
use to which it is being devoted at the time, such use may be discontinued by the State to enable it to extract the minerals therein
in the exercise of its sovereign prerogative. The land is thus converted to mineral land and may not be used by any private party,
including the registered owner thereof, for any other purpose that will impede the mining operations to be undertaken therein, For
the loss sustained by such owner, he is of course entitled to just compensation under the Mining Laws or in appropriate
expropriation proceedings.
21

Our holding is that Benguet and Atok have exclusive rights to the property in question by virtue of their respective mining claims
which they validly acquired before the Constitution of 1935 prohibited the alienation of all lands of the public domain except
agricultural lands, subject to vested rights existing at the time of its adoption. The land was not and could not have been
transferred to the private respondents by virtue of acquisitive prescription, nor could its use be shared simultaneously by them
and the mining companies for agricultural and mineral purposes.
WHEREFORE, the decision of the respondent court dated April 30, 1976, is SET ASIDE and that of the trial court dated March
11, 1969, is REINSTATED, without any pronouncement as to costs.
SO ORDERED.
Teehankee, C.J., Narvasa, Gancayco and Grio-Aquino, JJ., concur.

Footnotes
1 Sec. 4, Commonwealth Act No. 137.
2 Original Records, Land Registration Case No. 146, pp. 1-4.
3 Ibid., pp. 33, 68, 241.
4 TSN, May 5, 1966, p. 61.
5 TSN, May 3, 1967, pp. 89-115.
6 Original Records, Exhs. "J," p. 24, "K," p. 26.
7 Original Record, Exhs. "I," p. 22, "K," p. 26.
8 Exhs. "8 (a-e)," "9 (a-e)," "9 (f-g)," "7," and "11."
9 Exh. "5," Atok; Exh. "6," Atok, Rollo (G.R. No. 44081), Annex "B," pp. 76-82.
10 Original Records, Land Registration Case No. 146, p, 291.
* Judge Feliciano Belmonte, CFI of Baguio, Benguet.
11 Ibid., p. 325.
** Leuterio J., ponente, with Vasquez and Escolin, JJ.
12 Rollo (GR No. 43938), pp. 38-51.
13 Ibid., pp. 40-42.
14 McDaniel v. Apacible, 42 Phil. 749; Salacot Mining Co. v. Rodriguez, 67 Phil. 97; Salacot Mining v.
Apacible, 67 Phil. 110; Benguet, Inc. v. Republic, 143 SCRA 466.
15 The respondents may claim, however, that inasmuch as a patent has not been issued to the petitioner,
he has acquired no property right in said mineral claims. But the Supreme Court of the United States, in
the cases of Union Oil Co. v. Smith (249 U.S. 337), and St. Louis Mining & Milling Co. v. Montana Mining
Co. (171 U.S. 650), held that even without a patent, the possessory right of a locator after discovery of
minerals upon the claim is a property right in the fullest sense, unaffected by the fact that the paramount
title to the land is in the United State. McDaniel v. Apacible, supra; Salacot Mining Co. v.
Rodriguez, supra.
16 Original Records, pp. 1-4.
17 Tan Hong v. Hon. Parades, G.R. No. 78627, Jan. 29, 1988; Pio Padilla v. CA, G.R. No. 75577, Jan.
29, 1988; Verdant Acres v. Ponciano Hernandez, G.R. No. 51352, Jan. 29, 1988; People v. Ancheta, 148
SCRA 178; People v. Delavin, 148 SCRA 257; People v. Alcantara, 151 SCRA 326.
18 TSN, Oct. 18, 1966, p. 79.
19 Article 437, new Civil Code.
20 Sec. 1, Presidential Legislative Act No. 4268.
21 Consolidated Mines Administrative Order, May 17, 1975, Secs. 10 & 11, as amended by Mines
Adrministrative Order No. MRD-15.

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 182867 November 25, 2008
ROBERTO LACEDA, SR., petitioner,
vs.
RANDY L. LIMENA and COMMISSION ON ELECTIONS, respondents.
R E S O L U T I O N
QUISUMBING, J .:
From this Court's June 10, 2008 Resolution
1
dismissing his petition for certiorari, petitioner Roberto Laceda, Sr. filed the
instant motion for reconsideration,
2
insisting that the Commission on Elections (COMELEC) committed grave abuse of
discretion in issuing the Resolutions dated January 15, 2008
3
and May 7, 2008
4
in SPA No. 07-028 (BRGY).
The facts are as follows:
Petitioner Roberto Laceda, Sr., and private respondent Randy L. Limena were candidates for Punong Barangay of Barangay
Panlayaan, West District, Sorsogon City, during the October 29, 2007 Barangay and Sangguniang Kabataan Elections. On
October 23, 2007, Limena filed a petition for disqualification and/or declaration as an ineligible candidate
5
against Laceda
before the COMELEC, contending that Laceda had already served as Punong Barangay for Brgy. Panlayaan for three
consecutive terms since 1994, and was thus prohibited from running for the fourth time under Section 2 of Republic Act No.
9164
6
which provides:
SEC. 2. Term of Office.-The term of office of all barangay and sangguniang kabataan officials after the
effectivity of this Act shall be three (3) years.
No barangay elective official shall serve for more than three (3) consecutive terms in the same
position: Provided, however, That the term of office shall be reckoned from the 1994 barangay elections.
Voluntary renunciation of office for any length of time shall not be considered as an interruption in the
continuity of service for the full term for which the elective official was elected.
Limena likewise attached the following certification from the Department of the Interior and Local Government:
THIS IS TO CERTIFY that per records in this office HON. ROBERTO LACEDA, SR., incumbent Punong
Barangay of Panlayaan, West District, Sorsogon City. was elected as Punong Barangay during the May 9,
1994, May 12, 1997 and July 15, 2002 Barangay Elections. He resigned from office on March 20, 1995 to
run as Municipal Councilor. Hence, he is covered by the three-term rule of paragraph 2, Section 2 of RA
9164 which provides that: "No barangay elective official shall serve for more than three (3) consecutive
terms in the same position: Provided, however, that the term of office shall be reckoned from the 1994
barangay elections. Voluntary renunciation of office [for] any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official was elected."
7

x x x x
In his Answer,
8
Laceda admitted having served as Punong Barangay of Panlayaan for three consecutive terms. However, he
asserted that when he was elected for his first two terms, Sorsogon was still a municipality, and that when he served his third
term, the Municipality of Sorsogon had already been merged with the Municipality of Bacon to form a new political unit,
the City of Sorsogon, pursuant to Republic Act No. 8806.
9
Thus, he argued that his third term was actually just his first in
the new political unit and that he was accordingly entitled to run for two more terms.
Laceda likewise argued that assuming he had already served three consecutive terms, Rep. Act No. 9164 which imposes the
three-term limit, cannot be made to apply to him as it would violate his vested right to office. He alleged that when he was
elected in 1994 the prohibition did not exist. Had he known that there will be a law preventing him to run for the fourth time,
he would not have run for office in 1994 as he was looking forward to the election in 2007.
10

On January 15, 2008, the COMELEC declared Laceda disqualified and cancelled his certificate of candidacy:
WHEREFORE, this Commission RESOLVED, as it hereby RESOLVED, to declare Respondent Roberto
Laceda, Sr. DISQUALIFIED from running as Punong Barangay of Panlayaan, West District, Sorsogon City
and consequently denies due course and cancels his Certificate of Candidacy.
SO ORDERED.
11

Laceda moved for reconsideration, but his motion was denied by the COMELEC in a Resolution dated May 7, 2008.
Aggrieved, Laceda filed a petition for certiorari before this Court.
On June 10, 2008, this Court dismissed the petition for failure to sufficiently show that any grave abuse of discretion was
committed by the COMELEC in rendering the assailed Resolutions of January 15, 2008 and May 7, 2008. Hence, this
motion for reconsideration.
Laceda insists that the COMELEC committed grave abuse of discretion in basing its decision on the requisites enunciated
in Lonzanida v. Commission on Elections
12
for the application of the three-term prohibition in Section 43
13
of the Local
Government Code.
14
Laceda argues that said case is inapplicable since it involved the position of municipal mayor while the
instant case concerned the position of Punong Barangay. He likewise insists that he served his third term in a new political
unit and therefore he should not be deemed already to have served a third term as Punong Barangay for purposes of applying
the three-term limit.
15

For reasons hereafter discussed, the motion for reconsideration cannot prosper.
Section 2 of Rep. Act No. 9164, like Section 43 of the Local Government Code from which it was taken, is primarily
intended to broaden the choices of the electorate of the candidates who will run for office, and to infuse new blood in the
political arena by disqualifying officials from running for the same office after a term of nine years. This Court has held that
for the prohibition to apply, two requisites must concur: (1) that the official concerned has been elected for three consecutive
terms in the same local government post and (2) that he or she has fully served three consecutive terms.
16

In this case, while it is true that under Rep. Act No. 8806 the municipalities of Sorsogon and Bacon were merged and
converted into a city thereby abolishing the former and creating Sorsogon City as a new political unit, it cannot be said that
for the purpose of applying the prohibition in Section 2 of Rep. Act No. 9164, the office of Punong Barangay of Barangay
Panlayaan, Municipality of Sorsogon, would now be construed as a different local government post as that of the office of
Punong Barangay of Barangay Panlayaan, Sorsogon City. The territorial jurisdiction of Barangay Panlayaan, Sorsogon City,
is the same as before the conversion. Consequently, the inhabitants of the barangay are the same. They are the same group of
voters who elected Laceda to be their Punong Barangay for three consecutive terms and over whom Laceda held power and
authority as their Punong Barangay. Moreover, Rep. Act No. 8806 did not interrupt Laceda's term.
In Latasa v. Commission on Elections,
17
which involved a similar question, this Court held that where a person has been
elected for three consecutive terms as a municipal mayor and prior to the end or termination of such three-year term the
municipality has been converted by law into a city, without the city charter interrupting his term until the end of the three-
year term, the prohibition applies to prevent him from running for the fourth time as city mayor thereof, there being no break
in the continuity of the terms.
Thus, conformably with the democratic intent of Rep. Act No. 9164 and this Court's ruling in Latasa v. Commission on
Elections, we hold that the prohibition in Section 2 of said statute applies to Laceda. The COMELEC did not err nor commit
any abuse of discretion when it declared him disqualified and cancelled his certificate of candidacy.
WHEREFORE, petitioner Roberto Laceda, Sr.'s Motion for Reconsideration
18
dated July 25, 2008 assailing this Court's
Resolution dated June 10, 2008 is DENIED with FINALITY.
SO ORDERED.
LEONARDO A. QUISUMBING
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice
*
CONSUELO YNARES-SANTIAGO
Associate Justice
ANTONIO T. CARPIO
Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
RENATO C. CORONA
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice
ADOLFO S. AZCUNA
Associate Justice
DANTE O. TINGA
Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
RUBEN T. REYES
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
*
On leave.
1
Rollo, p. 63.
2
Id. at 70-73. Dated July 25, 2008.
3
Id. at 25-30.
4
Id. at 56-62.
5
Id. at 14-17.
6
An Act Providing for Synchronized Barangay and Sangguniang Kabataan Elections, Amending Republic
Act No. 7160, as Amended, Otherwise Known as the "Local Government Code of 1991," and for Other
Purposes, approved on March 19, 2002.
7
Rollo, p. 18.
8
Id. at 20-23.
9
An Act Creating the City of Sorsogon by Merging the Municipalities of Bacon and Sorsogon in the
Province of Sorsogon and Appropriating Funds Therefor, approved on August 16, 2000.
10
Rollo, p. 21.
11
Id. at 29.
12
G.R. No. 135150, July 28, 1999, 311 SCRA 602.
13
SECTION. 43. Term of Office. -
(b) No local elective official shall serve for more than three (3) consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the elective official concerned was
elected.
x x x x
14
Republic Act No. 7160, also known as Local Government Code of 1991, approved on October 10, 1991.
15
Rollo, pp. 71-72.
16
Lonzanida v. Commission on Elections, supra at 611.
17
G.R. No. 154829, December 10, 2003, 417 SCRA 601.
18
Rollo, pp. 64-68.

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EN BANC
[G.R. No. 154829. December 10, 2003]
ARSENIO A. LATASA, petitioner, vs. COMMISSION ON ELECTIONS,
and ROMEO SUNGA, respondents.
D E C I S I O N
AZCUNA, J .:
This is a petition for certiorari under Rule 65 of the Rules of Court which seeks to
challenge the resolution issued by the First Division of the Commission on Elections
(COMELEC) dated April 27, 2001 in SPA Case No. 01-059 entitled, Romeo M. Sunga,
petitioner, versus Arsenio A. Latasa, respondent, and the Resolution of the
COMELEC en banc denying herein petitioners Motion for Reconsideration. The
assailed Resolution denied due course to the certificate of candidacy of petitioner
Arsenio A. Latasa, declaring him disqualified to run for mayor of Digos City, Davao del
Sur Province in the May 14, 2001 elections, ordering that all votes cast in his favor shall
not be counted, and if he has been proclaimed winner, declaring said proclamation null
and void.
The facts are fairly simple.
Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos, Davao
del Sur in the elections of 1992, 1995, and 1998. During petitioners third term,
the Municipality of Digoswas declared a component city, to be known as the City
of Digos. A plebiscite conducted on September 8, 2000 ratified Republic Act No. 8798
entitled, An Act Converting the Municipality of Digos, Davao del Sur Province into a
Component City to be known as the City of Digos or the Charter of the City of
Digos. This event also marked the end of petitioners tenure as mayor of
the Municipality of Digos. However, under Section 53, Article IX of the Charter,
petitioner was mandated to serve in a hold-over capacity as mayor of the new City of
Digos. Hence, he took his oath as the city mayor.
On February 28, 2001, petitioner filed his certificate of candidacy for city mayor for
the May 14, 2001 elections. He stated therein that he is eligible therefor, and likewise
disclosed that he had already served for three consecutive terms as mayor of the
Municipality of Digos and is now running for the first time for the position of city mayor.
On March 1, 2001, private respondent Romeo M. Sunga, also a candidate for city
mayor in the said elections, filed before the COMELEC a Petition to Deny Due Course,
Cancel Certificate of Candidacy and/ or For Disqualification
[1]
against petitioner
Latasa. Respondent Sunga alleged therein that petitioner falsely represented in his
certificate of candidacy that he is eligible to run as mayor of Digos City since petitioner
had already been elected and served for three consecutive terms as mayor from 1992
to 2001.
On March 5, 2001, petitioner Latasa filed his Answer,
[2]
arguing that he did not
make any false representation in his certificate of candidacy since he fully disclosed
therein that he had served as mayor of the Municipality of Digos for three consecutive
terms. Moreover, he argued that this fact does not bar him from filing a certificate of
candidacy for the May 14, 2001 elections since this will be the first time that he will be
running for the post of city mayor.
Both parties submitted their position papers on March 19, 2001.
[3]

On April 27, 2001, respondent COMELECs First Division issued a Resolution, the
dispositive portion of which reads, as follows:
Wherefore, premises considered, the respondents certificate of candidacy should be
cancelled for being a violation of the three (3)-term rule proscribed by the 1987
Constitution and the Local Government Code of 1991.
[4]

Petitioner filed his Motion for Reconsideration dated May 4, 2001,
[5]
which remained
unacted upon until the day of the elections, May 14, 2001. On May 16, 2001, private
respondent Sunga filed an Ex Parte Motion for Issuance of Temporary Restraining
Order Enjoining the City Board of Canvassers From Canvassing or Tabulating
Respondents Votes, and From Proclaiming Him as the Duly Elected Mayor if He Wins
the Elections.
[6]
Despite this, however, petitioner Latasa was still proclaimed winner
on May 17, 2001, having garnered the most number of votes. Consequently, private
respondent Sunga filed, on May 27, 2001, a Supplemental Motion
[7]
which essentially
sought the annulment of petitioners proclamation and the suspension of its effects.
On July 1, 2001, petitioner was sworn into and assumed his office as the newly
elected mayor of Digos City. It was only on August 27, 2002 that the COMELEC en
banc issued a Resolution denying petitioners Motion for Reconsideration.
Hence, this petition.
It cannot be denied that the Court has previously held in Mamba-Perez v.
COMELEC
[8]
that after an elective official has been proclaimed as winner of the
elections, the COMELEC has no jurisdiction to pass upon his qualifications. An
opposing partys remedies after proclamation would be to file a petition for quo
warranto within ten days after the proclamation.
On the other hand, certain peculiarities in the present case reveal the fact that its
very heart is something which this Court considers of paramount interest. This Court
notes from the very beginning that petitioner himself was already entertaining some
doubt as to whether or not he is indeed eligible to run for city mayor in the May 14,
2001 elections. In his certificate of candidacy, after the phrase I am eligible, petitioner
inserted a footnote and indicated:
*
Having served three (3) term[s] as municipal mayor and now running for the first
time as city mayor.
[9]

Time and again, this Court has held that rules of procedure are only tools designed
to facilitate the attainment of justice, such that when rigid application of the rules tend to
frustrate rather than promote substantial justice, this Court is empowered to suspend
their operation. We will not hesitate to set aside technicalities in favor of what is fair and
just.
[10]

The spirit embodied in a Constitutional provision must not be attenuated by a rigid
application of procedural rules.
The present case raises a novel issue with respect to an explicit Constitutional
mandate: whether or not petitioner Latasa is eligible to run as candidate for the position
of mayor of the newly-created City of Digos immediately after he served for three
consecutive terms as mayor of the Municipality of Digos.
As a rule, in a representative democracy, the people should be allowed freely to
choose those who will govern them. Article X, Section 8 of the Constitution is an
exception to this rule, in that it limits the range of choice of the people.
Section 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official shall serve
for more than three consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.
An examination of the historical background of the subject Constitutional provision
reveals that the members of the Constitutional Commission were as much concerned
with preserving the freedom of choice of the people as they were with preventing the
monopolization of political power. In fact, they rejected a proposal set forth by
Commissioner Edmundo Garcia that after serving three consecutive terms or nine
years, there should be no further re-election for local and legislative officials.
[11]
The
members, instead, adopted the alternative proposal of Commissioner Christian Monsod
that such officials be simply barred from running for the same position in the succeeding
election following the expiration of the third consecutive term:
MR. MONSOD: Madam President, I was reflecting on this issue earlier and I
asked to speak because in this draft Constitution, we are recognizing peoples
power. We have said that now there is a new awareness, a new kind of voter, a new
kind of Filipino. And yet at the same time, we are prescreening candidates among
whom they will choose. We are saying that this 48-member Constitutional
Commission has decreed that those who have served for a period of nine years are
barred from running for the same position.
The argument is that there may be other positions. But there are some people who are
very skilled and good at legislation, and yet are not of a national stature to be
Senators. They may be perfectly honest, perfectly competent and with
integrity. They get voted into office at the age of 25, which is the age we provide for
Congressmen. And at 34 years old we put them into pasture.
Second, we say that we want to broaden the choices of the people. We are talking
here only of congressional or senatorial seats. We want to broaden the peoples
choice but we are making prejudgment today because we exclude a certain number of
people. We are, in effect, putting an additional qualification for office that the
officials must have not have served a total of more than a number of years in their
lifetime.
Third, we are saying that by putting people to pasture, we are creating a reserve of
statesmen, but the future participation of these statesmen is limited. Their skills may
be only in some areas, but we are saying that they are going to be barred from running
for the same position.
Madam President, the ability and capacity of a statesman depend as well on the day-
to-day honing of his skills and competence, in intellectual combat, in concern and
contact with the people, and here we are saying that he is going to be barred from the
same kind of public service.
I do not think it is in our place today to make such a very important and momentous
decision with respect to many of our countrymen in the future who may have a lot
more years ahead of them in the service of their country.
If we agree that we will make sure that these people do not set up structures that will
perpetuate them, then let us give them this rest period of three years or whatever it
is. Maybe during that time, we would even agree that their fathers or mothers or
relatives of the second degree should not run. But let us not bar them for life after
serving the public for number of years.
[12]

The framers of the Constitution, by including this exception, wanted to establish
some safeguards against the excessive accumulation of power as a result of
consecutive terms. As Commissioner Blas Ople stated during the deliberations:
x x x I think we want to prevent future situations where, as a result of continuous
service and frequent re-elections, officials from the President down to the municipal
mayor tend to develop a proprietary interest in their positions and to accumulate these
powers and perquisites that permit them to stay on indefinitely or to transfer these
posts to members of their families in a subsequent election. x x x
[13]

An elective local official, therefore, is not barred from running again in for same local
government post, unless two conditions concur: 1.) that the official concerned has been
elected for three consecutive terms to the same local government post, and 2.) that he
has fully served three consecutive terms.
[14]

In the present case, petitioner states that a city and a municipality have separate
and distinct personalities. Thus they cannot be treated as a single entity and must be
accorded different treatment consistent with specific provisions of the Local Government
Code. He does not deny the fact that he has already served for three consecutive
terms as municipal mayor. However, he asserts that when Digos was converted from a
municipality to a city, it attained a different juridical personality. Therefore, when he filed
his certificate of candidacy for city mayor, he cannot be construed as vying for the same
local government post.
For a municipality to be converted into a city, the Local Government Code provides:
SECTION 450. Requisites for Creation. - (a) A municipality or a cluster of
barangays may be converted into a component city it has an average annual income,
as certified by the Department of Finance, of at least Twenty million pesos
(20,000,000.00) for the last two (2) consecutive years based on 1991 constant prices,
and if it has either of the following requisites:
(i) a contiguous territory of at least one hundred (100) square
kilometers, as certified by the Land Management Bureau; or,
(ii) a population of not less than one hundred fifty thousand
(150,000) inhabitants, as certified by the National Statistics Office.
Provided, That, the creation thereof shall not reduce the land area, population, and
income of the original unit or units at the time of said creation to less than the
minimum requirements prescribed herein.
(b) The territorial jurisdiction of a newly-created city shall be properly
identified by metes and bounds. The requirement on land are shall not apply where
the city proposed to be created is composed of one (1) or more island. The territory
need not be contiguous if it comprises two (2) or more islands.
(c) The average annual income shall include the income accruing to the
general fund, exclusive of special funds, transfers, and non-recurring income.
[15]

Substantial differences do exist between a municipality and a city. For one, there is
a material change in the political and economic rights of the local government unit when
it is converted from a municipality to a city and undoubtedly, these changes affect the
people as well.
[16]
It is precisely for this reason why Section 10, Article X of the
Constitution mandates that no province, city, municipality, or barangay may be created,
divided, merged, abolished, or its boundary substantially altered, without the approval
by a majority of the votes cast in a plebiscite in the political units directly affected.
As may be gleaned from the Local Government Code, the creation or conversion of
a local government unit is done mainly to help assure its economic viability. Such
creation or conversion is based on verified indicators:
Section 7. Creation and Conversion. --- As a general rule, the creation of a local
government unit or its conversion from one level to another shall be based on
verifiable indicators or viability and projected capacity to provide services, to wit:
(a) Income. --- It must be sufficient, based on acceptable standards, to provide for
all essential government facilities and services and special functions commensurate
with the size of its population, as expected of the local government unit concerned;
(b) Population. --- It shall be determined as the total number of inhabitants within
the territorial jurisdiction of the local government unit concerned; and
(c) Land Area. --- It must be contiguous, unless it comprises two (2) or more
islands or is separated by a local government unit independent of the others; properly
identified by metes and bounds with technical descriptions; and sufficient to provide
for such basic services and facilities to meet the requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the Department of
Finance (DOF), the National Statistics Office (NSO), and the Lands Management
Bureau (LMB) of the Department of Environment and Natural Resources (DENR).
[17]

On the other hand, Section 2 of the Charter of the City of Digos provides:
Section 2. The City of Digos --- The Municipality of Digos shall be converted into a
component city to be known as the City of Digos, hereinafter referred to as the City,
which shall comprise the present territory of theMunicipality of Digos, Davao del Sur
Province. The territorial jurisdiction of the City shall be within the present metes and
bounds of the Municipality of Digos. x x x
Moreover, Section 53 of the said Charter further states:
Section 53. Officials of the City of Digos. --- The present elective officials of
the Municipality of Digos shall continue to exercise their powers and functions until
such a time that a new election is held and the duly-elected officials shall have already
qualified and assumed their offices. x x x.
As seen in the aforementioned provisions, this Court notes that the delineation of
the metes and bounds of the City of Digos did not change even by an inch the land area
previously covered by the Municipality of Digos. This Court also notes that the elective
officials of the Municipality of Digos continued to exercise their powers and functions
until elections were held for the new cityofficials.
True, the new city acquired a new corporate existence separate and distinct from
that of the municipality. This does not mean, however, that for the purpose of applying
the subject Constitutional provision, the office of the municipal mayor would now be
construed as a different local government post as that of the office of the city mayor. As
stated earlier, the territorial jurisdiction of the City of Digos is the same as that of the
municipality. Consequently, the inhabitants of the municipality are the same as those in
the city. These inhabitants are the same group of voters who elected petitioner Latasa
to be their municipal mayor for three consecutive terms. These are also the same
inhabitants over whom he held power and authority as their chief executive for nine
years.
This Court must distinguish the present case from previous cases ruled upon this
Court involving the same Constitutional provision.
In Borja, Jr. v. COMELEC,
[18]
the issue therein was whether a vice-mayor who
became the mayor by operation of law and who served the remainder of the mayors
term should be considered to have served a term in that office for the purpose of the
three-term limit under the Constitution. Private respondent in that case was first elected
as vice-mayor, but upon the death of the incumbent mayor, he occupied the latters post
for the unexpired term. He was, thereafter, elected for two more terms. This Court
therein held that when private respondent occupied the post of the mayor upon the
incumbents death and served for the remainder of the term, he cannot be construed as
having served a full term as contemplated under the subject constitutional
provision. The term served must be one for which [the official concerned] was elected.
It must also be noted that in Borja, the private respondent therein, before he
assumed the position of mayor, first served as the vice-mayor of his local government
unit. The nature of the responsibilities and duties of the vice-mayor is wholly different
from that of the mayor. The vice-mayor does not hold office as chief executive over his
local government unit. In the present case, petitioner, upon ratification of the law
converting the municipality to a city, continued to hold office as chief executive of the
same territorial jurisdiction. There were changes in the political and economic rights of
Digos as local government unit, but no substantial change occurred as to petitioners
authority as chief executive over the inhabitants of Digos.
In Lonzanida v. COMELEC,
[19]
petitioner was elected and served two consecutive
terms as mayor from 1988 to 1995. He then ran again for the same position in the May
1995 elections, won and discharged his duties as mayor. However, his opponent
contested his proclamation and filed an election protest before the Regional Trial Court,
which ruled that there was a failure of elections and declared the position of mayor
vacant. The COMELEC affirmed this ruling and petitioner acceded to the order to
vacate the post. During the May 1998 elections, petitioner therein again filed his
certificate of candidacy for mayor. A petition to disqualify him was filed on the ground
that he had already served three consecutive terms. This Court ruled, however, that
petitioner therein cannot be considered as having been duly elected to the post in the
May 1995 elections, and that said petitioner did not fully serve the 1995-1998 mayoral
term by reason of involuntary relinquishment of office.
In the present case, petitioner Latasa was, without a doubt, duly elected as mayor in
the May 1998 elections. Can he then be construed as having involuntarily relinquished
his office by reason of the conversion of Digos from municipality to city? This Court
believes that he did involuntarily relinquish his office as municipal mayor since the said
office has been deemed abolished due to the conversion. However, the very instant he
vacated his office as municipal mayor, he also assumed office as city mayor. Unlike
in Lonzanida, where petitioner therein, for even just a short period of time, stepped
down from office, petitioner Latasa never ceased from acting as chief executive of the
local government unit. He never ceased from discharging his duties and responsibilities
as chief executive of Digos.
In Adormeo v. COMELEC,
[20]
this Court was confronted with the issue of whether or
not an assumption to office through a recall election should be considered as one term
in applying the three-term limit rule. Private respondent, in that case, was elected and
served for two consecutive terms as mayor. He then ran for his third term in the May
1998 elections, but lost to his opponent. In June 1998, his opponent faced recall
proceedings and in the recall elections of May 2000, private respondent won and served
for the unexpired term. For the May 2001 elections, private respondent filed his
certificate of candidacy for the office of mayor. This was questioned on the ground that
he had already served as mayor for three consecutive terms. This Court held therein
that private respondent cannot be construed as having been elected and served for
three consecutive terms. His loss in the May 1998 elections was considered by this
Court as an interruption in the continuity of his service as mayor. For nearly two years,
private respondent therein lived as a private citizen. The same, however, cannot be
said of petitioner Latasa in the present case.
Finally, in Socrates v. COMELEC,
[21]
the principal issue was whether or not private
respondent Edward M. Hagedorn was qualified to run during the recall
elections. Therein respondent Hagedorn had already served for three consecutive
terms as mayor from 1992 until 2001 and did not run in the immediately following
regular elections. On July 2, 2002, the barangay officials of Puerto Princesa convened
themselves into a Preparatory Recall Assembly to initiate the recall of the incumbent
mayor, Victorino Dennis M. Socrates. On August 23, 2002, respondent Hagedorn filed
his certificate of candidacy for mayor in the recall election. A petition for his
disqualification was filed on the ground that he cannot run for the said post during the
recall elections for he was disqualified from running for a fourth consecutive term. This
Court, however, ruled in favor of respondent Hagedorn, holding that the principle behind
the three-term limit rule is to prevent consecutiveness of the service of terms, and that
there was in his case a break in such consecutiveness after the end of his third term
and before the recall election.
It is evident that in the abovementioned cases, there exists a rest period or a break
in the service of the local elective official. In Lonzanida, petitioner therein was a private
citizen a few months before the next mayoral elections. Similarly,
in Adormeo and Socrates, the private respondents therein lived as private citizens for
two years and fifteen months respectively. Indeed, the law contemplates a rest period
during which the local elective official steps down from office and ceases to exercise
power or authority over the inhabitants of the territorial jurisdiction of a particular local
government unit.
This Court reiterates that the framers of the Constitution specifically included an
exception to the peoples freedom to choose those who will govern them in order to
avoid the evil of a single person accumulating excessive power over a particular
territorial jurisdiction as a result of a prolonged stay in the same office. To allow
petitioner Latasa to vie for the position of city mayor after having served for three
consecutive terms as a municipal mayor would obviously defeat the very intent of the
framers when they wrote this exception. Should he be allowed another three
consecutive terms as mayor of the City of Digos, petitioner would then be possibly
holding office as chief executive over the same territorial jurisdiction and inhabitants for
a total of eighteenconsecutive years. This is the very scenario sought to be avoided by
the Constitution, if not abhorred by it.
Finally, respondent Sunga claims that applying the principle in Labo v.
COMELEC,
[22]
he should be deemed the mayoralty candidate with the highest number of
votes. On the contrary, this Court held in Labo that the disqualification of a winning
candidate does not necessarily entitle the candidate with the highest number of votes to
proclamation as the winner of the elections. As an obiter, the Court merely mentioned
that the rule would have been different if the electorate, fully aware in fact and in law of
a candidates disqualification so as to bring such awareness within the realm of
notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such
case, the electorate may be said to have waived the validity and efficacy of their votes
by notoriously misapplying their franchise or throwing away their votes, in which case,
the eligible candidate obtaining the next higher number of votes may be deemed
elected. The same, however, cannot be said of the present case.
This Court has consistently ruled that the fact that a plurality or a majority of the
votes are cast for an ineligible candidate at a popular election, or that a candidate is
later declared to be disqualified to hold office, does not entitle the candidate who
garnered the second highest number of votes to be declared elected. The same merely
results in making the winning candidates election a nullity.
[23]
In the present case,
moreover, 13,650 votes were cast for private respondent Sunga as against the 25,335
votes cast for petitioner Latasa.
[24]
The second placer is obviously not the choice of the
people in that particular election. In any event, a permanent vacancy in the contested
office is thereby created which should be filled by succession.
[25]

WHEREFORE, the petition is DISMISSED. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo,
Sr., and Tinga, JJ., concur.



[1]
Annex D of Petition; Rollo, pp. 45-50.
[2]
Annex E of Petition; Rollo, pp. 56-68.
[3]
Annexes F and G of Petition; Rollo, pp. 69-97.
[4]
Annex A of the Petition; Rollo, pp. 22-25.
[5]
Annex C of the Petition; Rollo, pp. 34-40.
[6]
Annex H of the Petition; Rollo, pp. 98-100.
[7]
Annex J of the Petition; Rollo, pp. 105-110.
[8]
317 SCRA 641, 647-648 (1999).
[9]
Annex A of the Petition; Rollo, p. 51.
[10]
Valenzuela v. Court of Appeals, G.R. No. 131175, August 28, 2001.
[11]
Borja, Jr. v. Commission on Elections, 295 SCRA 157, 163 (1998) citing 2 RECORD OF THE
CONSTITUTIONAL COMMISSION 236-237 (Session of July 25, 1986) (Statement of
Commissioner Garcia).
[12]
2 RECORD OF THE CONSTITUTIONAL RECORD 238 (Session of July 25, 1986) (Statement of
Commissioner Monsod).
[13]
Id., at 239.
[14]
Lonzanida v. Commission on Elections, 311 SCRA 602, 611 (1999).
[15]
Section 450, Chapter 1, Title Three, Book III, Local Government Code.
[16]
Miranda v. Aguirre, 314 SCRA 603, 610 (1999).
[17]
Section 7, Chapter 2, Book I, Local Government Code.
[18]
Supra note 11.
[19]
Supra note 14.
[20]
376 SCRA 90 (2002).
[21]
G.R. Nos. 154512, 154683, 155083-84, November 12, 2002.
[22]
211 SCRA 297, 309 (1992).
[23]
Republic v. De la Rosa, 237 SCRA 785 (1994).
[24]
As certified by the City Election Officer, Annex K of the Petition; Rollo, p. 112.
[25]
Reyes v. COMELEC, 254 SCRA 514 (1996).
EN BANC
[G.R. No. 147927. February 4, 2002]
RAYMUNDO M. ADORMEO, petitioner, vs. COMMISSION ON
ELECTIONS and RAMON Y. TALAGA, JR., respondents.
D E C I S I O N
QUISUMBING, J .:
Before us is a petition for certiorari, with a prayer for a writ of preliminary injunction
and/or temporary restraining order, to nullify and set aside the resolution dated May 9,
2001 of public respondent Commission on Elections in Comelec SPA No. 01-055, which
granted the motion for reconsideration and declared private respondent Ramon Y.
Talaga, Jr., qualified to run for Mayor in Lucena City for the May 14, 2001
election. Petitioner prays that votes cast in private respondents favor should not be
counted; and should it happen that private respondent had been already proclaimed the
winner, his proclamation should be declared null and void.
The uncontroverted facts are as follows:
Petitioner and private respondent were the only candidates who filed their
certificates of candidacy for mayor of Lucena City in the May 14, 2001 elections. Private
respondent was then the incumbent mayor.
Private respondent Talaga, Jr. was elected mayor in May 1992. He served the full
term. Again, he was re-elected in 1995-1998. In the election of 1998, he lost to Bernard
G. Tagarao. In the recall election of May 12, 2000, he again won and served the
unexpired term of Tagarao until June 30, 2001.
On March 2, 2001, petitioner filed with the Office of the Provincial Election
Supervisor, Lucena City a Petition to Deny Due Course to or Cancel Certificate of
Candidacy and/or Disqualification of Ramon Y. Talaga, Jr., on the ground that the latter
was elected and had served as city mayor for three (3) consecutive terms as follows: (1)
in the election of May 1992, where he served the full term; (2) in the election of May
1995, where he again served the full term; and, (3) in the recall election of May 12,
2000, where he served only the unexpired term of Tagarao after having lost to Tagarao
in the 1998 election. Petitioner contended that Talagas candidacy as Mayor constituted
a violation of Section 8, Article X of the 1987 Constitution which provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for
more than three consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.
On March 9, 2001, private respondent responded that he was not elected City
Mayor for three (3) consecutive terms but only for two (2) consecutive terms. He
pointed to his defeat in the 1998 election by Tagarao. Because of his defeat the
consecutiveness of his years as mayor was interrupted, and thus his mayorship was not
for three consecutive terms of three years each. Respondent added that his service
from May 12, 2001 until June 30, 2001 for 13 months and eighteen (18) days was not a
full term, in the contemplation of the law and the Constitution. He citesLonzanida vs.
COMELEC, G.R. No. 135150, 311 SCRA 602, 611 (1999), as authority to the effect that
to apply disqualification under Section 8, Article X of the Constitution, two (2) conditions
must concur, to wit: (a) that the official concerned has been elected for three
consecutive terms in the same local government post, and (b) that he has fully served
three (3) consecutive terms.
On April 20, 2001, the COMELEC, through the First Division, found private
respondent Ramon Y. Talaga, Jr. disqualified for the position of city mayor on the
ground that he had already served three (3) consecutive terms, and his Certificate of
Candidacy was ordered withdrawn and/or cancelled.
On April 27, 2001, private respondent filed a motion for reconsideration reiterating
that three (3) consecutive terms means continuous service for nine (9) years and that
the two (2) years service from 1998 to 2000 by Tagarao who defeated him in the
election of 1998 prevented him from having three consecutive years of service. He
added that Tagaraos tenure from 1998 to 2000 could not be considered as a
continuation of his mayorship. He further alleged that the recall election was not a
regular election, but a separate special election specifically to remove incompetent local
officials.
On May 3, 2001, petitioner filed his Opposition to private respondents Motion for
Reconsideration stating therein that serving the unexpired term of office is considered
as one (1) term.
[1]
Petitioner further contended that Article 8 of the Constitution speaks of
term and does not mention tenure. The fact that private respondent was not elected
in the May 1998 election to start a term that began on June 30, 1998 was of no
moment, according to petitioner, and what matters is that respondent was elected to an
unexpired term in the recall election which should be considered one full term from June
30, 1998 to June 30, 2001.
On May 9, 2001, the COMELEC en banc ruled in favor of private respondent
Ramon Y. Talaga, Jr.. It reversed the First Divisions ruling and held that 1) respondent
was not elected for three (3) consecutive terms because he did not win in the May 11,
1998 elections; 2) that he was installed only as mayor by reason of his victory in the
recall elections; 3) that his victory in the recall elections was not considered a term of
office and is not included in the 3-term disqualification rule, and 4) that he did not fully
serve the three (3) consecutive terms, and his loss in the May 11, 1998 elections is
considered an interruption in the continuity of his service as Mayor of Lucena City.
On May 19, 2001, after canvassing, private respondent was proclaimed as the duly
elected Mayor of Lucena City.
Petitioner is now before this Court, raising the sole issue:
WHETHER OR NOT PUBLIC RESPONDENT COMELEC ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT ISSUED ITS RESOLUTION DATED MAY 9, 2001,
DECLARING PRIVATE RESPONDENT RAMON Y. TALAGA, JR., QUALIFIED
TO RUN FOR MAYOR IN LUCENA CITY FOR THE MAY 14, 2001
ELECTIONS.
[2]

Stated differently, was private respondent disqualified to run for mayor
of Lucena City in the May 14, 2001 elections?
[3]
This issue hinges on whether, as
provided by the Constitution, he had already served three consecutive terms in that
office.
Petitioner contends that private respondent was disqualified to run for city mayor by
reason of the three-term rule because the unexpired portion of the term of office he
served after winning a recall election, covering the period May 12, 2000 to June 30,
2001 is considered a full term. He posits that to interpret otherwise, private respondent
would be serving four (4) consecutive terms of 10 years, in violation of Section 8, Article
X of 1987 Constitution
[4]
and Section 43 (b) of R.A. 7160, known as the Local
Government Code.
Section 43. Term of Office.
x x x
(b) No local elective official shall serve for more than three (3) consecutive terms in
the same position. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of service for the full term for
which the elective official concerned was elected.
Private respondent, in turn, maintains that his service as city mayor of Lucena is not
consecutive. He lost his bid for a second re-election in 1998 and between June 30,
1998 to May 12, 2000, during Tagaraos incumbency, he was a private citizen, thus he
had not been mayor for 3 consecutive terms.
In its comment, the COMELEC restated its position that private respondent was not
elected for three (3) consecutive terms having lost his third bid in the May 11,
1998 elections, said defeat is an interruption in the continuity of service as city mayor of
Lucena.
The issue before us was already addressed in Borja, Jr. vs. COMELEC, 295 SCRA
157, 169 (1998), where we held,
To recapitulate, the term limit for elective local officials must be taken to refer to
the right to be elected as well as the right to serve in the same elective
position. Consequently, it is not enough that an individual hasserved three
consecutive terms in an elective local office, he must also have been elected to the
same position for the same number of times before the disqualification can
apply. This point can be made clearer by considering the following case or situation:
x x x
Case No. 2. Suppose B is elected mayor and, during his first term, he is twice
suspended for misconduct for a total of 1 year. If he is twice reelected after that, can
he run for one more term in the next election?
Yes, because he has served only two full terms successively.
x x x
To consider C as eligible for reelection would be in accord with the understanding of
the Constitutional Commission that while the people should be protected from the
evils that a monopoly of political power may bring about, care should be taken that
their freedom of choice is not unduly curtailed.
Likewise, in the case of Lonzanida vs. COMELEC, 311 SCRA 602, 611 (1999), we
said,
This Court held that the two conditions for the application of the disqualification must
concur: a) that the official concerned has been elected for three consecutive terms in
the same local government post and 2) that he has fully served three consecutive
terms.
Accordingly, COMELECs ruling that private respondent was not elected for three
(3) consecutive terms should be upheld. For nearly two years he was a private
citizen. The continuity of his mayorship was disrupted by his defeat in the 1998
elections.
Patently untenable is petitioners contention that COMELEC in allowing respondent
Talaga, Jr. to run in the May 1998 election violates Article X, Section 8 of 1987
Constitution.
[5]
To bolster his case, respondent adverts to the comment of Fr. Joaquin
Bernas, a Constitutional Commission member, stating that in interpreting said provision
that if one is elected representative to serve the unexpired term of another, that
unexpired, no matter how short, will be considered one term for the purpose of
computing the number of successive terms allowed.
[6]

As pointed out by the COMELEC en banc, Fr. Bernas comment is pertinent only to
members of the House of Representatives. Unlike local government officials, there is no
recall election provided for members of Congress.
[7]

Neither can respondents victory in the recall election be deemed a violation of
Section 8, Article X of the Constitution as voluntary renunciation for clearly it is not.
In Lonzanida vs. COMELEC, we said:
The second sentence of the constitutional provision under scrutiny states,
Voluntary renunciation of office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which he was
elected. The clear intent of the framers of the constitution to bar any attempt to
circumvent the three-term limit by a voluntary renunciation of office and at the same
time respect the peoples choice and grant their elected official full service of a term is
evident in this provision. Voluntary renunciation of a term does not cancel the
renounced term in the computation of the three term limit; conversely, involuntary
severance from office for any length of time short of the full term provided by law
amounts to an interruption of continuity of service. The petitioner vacated his post a
few months before the next mayoral elections, not by voluntary renunciation but in
compliance with the legal process of writ of execution issued by the COMELEC to
that effect. Such involuntary severance from office is an interruption of continuity of
service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.
[8]

WHEREFORE, the instant petition is hereby DISMISSED. The resolution of public
respondent Commission on Elections dated May 9, 2001, in Comelec SPA No. 01-055
is AFFIRMED. Costs against petitioner.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Pardo, Buena, Ynares-Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio,
JJ., concur.



[1]
Rollo, p. 57.
[2]
Id. at 119.
[3]
Id. at 141.
[4]
Supra, on p. 2.
[5]
Sec. 8 The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
[6]
Joaquin Bernas, The 1987 Constitution of the Republic of the Philippines: A Commentary, p. 637.
[7]
Rollo, pp. 83-84.
[8]
G.R. No. 135150, 311 SCRA 602, 613 (1999).
SYLLABI/SYNOPSIS
EN BANC
[G.R. No. 135150. July 28, 1999]
ROMEO LONZANIDA, petitioner, vs. THE HONORABLE COMMISSION
ON ELECTION and EUFEMIO MULI, repondents.
D E C I S I O N
GONZAGA-REYES, J .:
This petition for certiorari under Rule 65 of the Rules of Court seeks to set aside the
resolutions issued by the COMELEC First Division dated May 21, 1998 and by the COMELEC
En Banc dated August 11, 1998 in SPA 98-190 entitled, In the matter of the Petition to
Disqualify Mayoralty Candidate Romeo Lonzanida of San Antonio, Zambales. Eufemio Muli,
petitioner, vs. Romeo Lonzanida, respondent. The assailed resolutions declared herein petitioner
Romeo Lonzanida disqualified to run for Mayor in the municipality of San Antonio, Zambales in
the May 1998 elections and that all votes cast in his favor shall not be counted and if he has been
proclaimed winner the said proclamation is declared null and void.
Petitioner Romeo Lonzanida was duly elected and served two consecutive terms as
municipal mayor of San Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995
elections Lonzanida ran for mayor of San Antonio, Zambales and was again proclaimed
winner. He assumed office and discharged the duties thereof. His proclamation in 1995 was
however contested by his then opponent Juan Alvez who filed an election protest before the
Regional Trial Court of Zambales, which in a decision dated January 9, 1997 declared a failure
of elections. The court ruled:
PREMISES CONSIDERED, this court hereby renders judgment declaring the results
of the election for the office of the mayor in San Antonio, Zambales last May 8, 1995
as null and void on the ground that there was a failure of election.
Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales is
hereby declared vacant.
Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC resolved the
election protest filed by Alvez and after a revision and re-appreciation of the contested ballots
declared Alvez the duly elected mayor of San Antonio, Zambales by plurality of votes cast in his
favor totaling 1,720 votes as against 1,488 votes for Lonzanida. On February 27, 1998 the
COMELEC issued a writ of execution ordering Lonzanida to vacate the post, which obeyed, and
Alvez assumed office for the remainder of the term.
In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for mayor
of San Antonio. On April 21, 1998 his opponent Eufemio Muli timely filed a petition to
disqualify Lonzanida from running for mayor of San Antonio in the 1998 elections on the ground
that he had served three consecutive terms in the same post. On May 13, 1998, petitioner
Lonzanida was proclaimed winner. On May 21, 1998 the First Division of the COMELEC
issued the questioned resolution granting the petition for disqualification upon a finding that
Lonzanida had served three consecutive terms as mayor of San Antonio, Zambales and he is
therefore disqualified to run for the same post for the fourth time. The COMELEC found that
Lonzanidas assumption of office by virtue of his proclamation in May 1995, although he was
later unseated before the expiration of the term, should be counted as service for one full term in
computing the three term limit under the Constitution and the Local Government Code. The
finding of the COMELEC First Division was affirmed by the COMELEC En Banc in a
resolution dated August 11, 1998.
Petitioner Lonzanida challenges the validity of the COMELEC resolutions finding him
disqualified to run for mayor of San Antonio Zambales in the 1998 elections. He maintains that
he was duly elected mayor for only two consecutive terms and that his assumption of office in
1995 cannot be counted as service of a term for the purpose of applying the three term limit for
local government officials, because he was not the duly elected mayor of San Antonio in the
May 1995 elections as evidenced by the COMELEC decision dated November 13, 1997 in EAC
no. 6-97 entitled Juan Alvez, Protestant-Appellee vs. Romeo Lonzanida, Protestee-Appellant,
wherein the COMELEC declared Juan Alvez as the duly elected mayor of San Antonio,
Zambales. Petitioner also argues that the COMELEC ceased to have jurisdiction over the
petition for disqualification after he was proclaimed winner in the 1998 mayoral elections; as the
proper remedy is a petition for quo warranto with the appropriate regional trial court under Rule
36 of the COMELEC Rules of Procedure.
Private respondent Eufemio Muli filed comment to the petition asking this court to sustain
the questioned resolutions of the COMELEC and to uphold its jurisdiction over the petition for
disqualification. The private respondent states that the petition for disqualification was filed on
April 21, 1998 or before the May 1998 mayoral elections. Under section 6, RA 6646 and Rule
25 of the COMELEC Rules of Procedure petitions for disqualification filed with the COMELEC
before the elections and/or proclamation of the party sought to be disqualified may still be herd
and decided by the COMELEC after the election and proclamation of the said party without
distinction as to the alleged ground for disqualification, whether for acts constituting an election
offense or for ineligibility. Accordingly, it is argued that the resolutions of the COMELEC on
the merits of the petition for disqualification were issued within the commissions
jurisdiction. As regards the merits of the case, the private respondent maintains that the
petitioners assumption of office in 1995 should be considered as service of one full term
because he discharged the duties of mayor for almost three years until March 1, 1998 or barely a
few months before the next mayoral elections.
The Solicitor-General filed comment to the petition for the respondent COMELEC praying
for the dismissal of the petition. The Solicitor-General stressed that section 8, Art. X of the
Constitution and section 43 (b), Chapter I of the Local Government Code which bar a local
government official from serving more than three consecutive terms in the same position speaks
of service of a term and so the rule should be examined in this light. The public respondent
contends that petitioner Lonzanida discharged the rights and duties of mayor from 1995 to 1998
which should be counted as service of one full term, albeit he was later unseated, because he
served as mayor for the greater part of the term. The issue of whether or not Lonzanida served as
a de jure or de facto mayor for the 1995-1998 term is inconsequential in the application of the
three term limit because the prohibition speaks of service of a term which was intended by the
framers of the Constitution to foil any attempt to monopolize political power. It is likewise
argued by the respondent that a petition for quo warranto with the regional trial court is proper
when the petition for disqualification is filed after the elections and so the instant petition for
disqualification which was filed before the elections may be resolved by the COMELEC
thereafter regardless of the imputed basis of disqualification.
The petitioner filed Reply to the comment. It is maintained that the petitioner could not
have served a valid term from 1995 to 1998 although he assumed office as mayor for that period
because he was no t lawfully elected to the said office. Moreover, the petitioner was unseated
before the expiration of the term and so his service for the period cannot be considered as one
full term. As regards the issue of jurisdiction, the petitioner reiterated in his Reply that the
COMELEC ceased to have jurisdiction to hear the election protest after the petitioners
proclamation.
The petition has merit.
Section 8, Art. X of the Constitution provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law shall be three years and no such officials shall serve for
more than three consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.
Section 43 of the Local Government Code (R.A. No. 7160) restates the same rule:
Sec. 43. Term of Office.
(b) No local elective official shall serve for more than three consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which
the elective official concerned was elected.
The issue before us is whether petitioner Lonzanidas assumption of office as mayor of San
Antonio Zambales from May 1995 to March 1998 may be considered as service of one full term
for the purpose of applying the three-term limit for elective local government officials.
The records of the 1986 Constitutional Commission show that the three-term limit which is
now embodied in section 8, Art. X of the Constitution was initially proposed to be an absolute
bar to any elective local government official from running for the same position after serving
three consecutive terms. The said disqualification was primarily intended to forestall the
accumulation of massive political power by an elective local government official in a given
locality in order to perpetuate his tenure in office. The delegates also considered the need to
broaden the choices of the electorate of the candidates who will run for office, and to infuse new
blood in the political arena by disqualifying officials from running for the same office after a
term of nine years. The mayor was compared by some delegates to the President of the Republic
as he is a powerful chief executive of his political territory and is most likely to form a political
dynasty.
[1]
The drafters however, recognized and took note of the fact that some local
government officials run for office before they reach forty years of age; thus to perpetually bar
them from running for the same office after serving nine consecutive years may deprive the
people of qualified candidates to choose from. As finally voted upon, it was agreed that an
elective local government official should be barred from running for the same post after three
consecutive terms. After a hiatus of at least one term, he may again run for the same office.
[2]

The scope of the constitutional provision barring elective officials with the exception of
barangay officials from serving more than three consecutive terms was discussed at length in the
case of Benjamin Borja, Jr., vs. COMELEC and Jose Capco, Jr.
[3]
where the issue raised was
whether a vice-mayor who succeeds to the office of the mayor by operation of law upon the
death of the incumbent mayor and served the remainder of the term should be considered to have
served a term in that office for the purpose of computing the three term limit. This court pointed
out that from the discussions of the Constitutional Convention it is evident that the delegates
proceeded from the premise that the officials assumption of office is by reason of election. This
Court stated:
[4]

Two ideas emerge from a consideration of the proceedings of the Constitutional
Commission. The first is the notion of service of term, derived from the concern
about the accumulation of power as a result of a prolonged stay in office. The second
is the idea of election, derived from the concern that the right of the people to choose
those whom they wish to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the
Constitution did so on the assumption that the officials concerned were serving by
reason of election. This is clear from the following exchange in the Constitutional
Commission concerning term limits, now embodied in Art. VI sections 4 and 7 of the
Constitution, for members of Congress:
MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will
allow the Senator to rest for a period of time before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before-if the Gentlemen will remember-
was: How long will that period of rest be? Will it be one election which is three years or one
term which is six years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view that
during the election following the expiration of the first 12 years, whether such election will be on
the third year or on the sixth year thereafter, his particular member of the Senate can run. So it is
not really a period of hibernation for six years. That was the Committees stand.
xxxx xxxx xxxx
Second, not only historical examination but textual analysis as well supports the
ruling of the COMELEC that Art X, section 8 contemplates service by local officials
for three consecutive terms as a result of election. The first sentence speaks of the
term of office of elective local officials and bars such officials from serving for
more than three consecutive terms. The second sentence, in explaining when an
elective official may be deemed to have served his full term of office, states that
voluntary renunciation of the office for any length of time shall not be considered as
an interruption in the continuity of his service for the full term for which he was
elected. The term served must therefore be one for which the the official concerned
was elected. The purpose of the provision is to prevent a circumvention of the
limitation on the number of terms an elective official may serve.
This Court held that two conditions for the application of the disqualification must concur: 1)
that the official concerned has been elected for three consecutive terms in the same local
government post and 2) that he has fully served three consecutive terms. It stated:
To recapitulate, the term limit for elective local officials must be taken to refer to the
right to be elected as well as the right to serve in the same elective
position. Consequently, it is not enough that an individual has servedthree
consecutive terms in an elective local office, he must also have been elected to the
same position for the same number of times before the disqualification can apply.
It is not disputed that the petitioner was previously elected and served two consecutive terms
as mayor of San Antonio Zambales prior to the May 1995 mayoral elections. In the May 1995
elections he again ran for mayor of San Antonio, Zambales and was proclaimed winner. He
assumed office and discharged the rights and duties of mayor until March 1998 when he was
ordered to vacate the post by reason of the COMELEC decision dated November 13, 1997 on the
election protest against the petitioner which declared his opponent Juan Alvez, the duly elected
mayor of San Antonio. Alvez served the remaining portion of the 1995-1998 mayoral term.
The two requisites for the application of the three term rule are absent. First, the petitioner
cannot be considered as having been duly elected to the post in the May 1995 elections, and
second, the petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary
relinquishment of office. After a re-appreciation and revision of the contested ballots the
COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995
mayoral elections and his previous proclamation as winner was declared null and void. His
assumption of office as mayor cannot be deemed to have been by reason of a valid election but
by reason of a void proclamation. It has been repeatedly held by this court that a proclamation
subsequently declared void is no proclamation at all
[5]
and while a proclaimed candidate may
assume office on the strength of the proclamation of the Board of Canvassers he is only a
presumptive winner who assumes office subject to the final outcome of the election
protest.
[6]
Petitioner Lonzanida did not serve a term as mayor of San Antonio, Zambales from
May 1995 to March 1998 because he was not duly elected to the post; he merely assumed office
as presumptive winner, which presumption was later overturned by the COMELEC when it
decided with finality that Lonzanida lost in the May 1995 mayoral elections.
Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because
he was ordered to vacate his post before the expiration of the term. The respondents contention
that the petitioner should be deemed to have served one full term from May 1995-1998 because
he served the greater portion of that term has no legal basis to support it; it disregards the second
requisite for the application of the disqualification, i.e., that he has fully served three consecutive
terms. The second sentence of the constitutional provision under scrutiny states, Voluntary
renunciation of office for any length of time shall not be considered as an interruption in the
continuity of service for the full term for which he was elected. The clear intent of the framers
of the constitution to bar any attempt to circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the peoples choice and grant their elected
official full service of a term is evident in this provision. Voluntary renunciation of a term does
not cancel the renounced term in the computation of the three term limit; conversely, involuntary
severance from office for any length of time short of the full term porvided by law amounts to an
interruption of continuity of service. The petitioner vacated his post a few months before the
next mayoral elections, not by voluntary renunciation but in compliance with the legal process of
writ of execution issued by the COMELEC to that effect. Such involuntary severance from
office is an interruption of continuity of service and thus, the petitioner did not fully serve the
1995-1998 mayoral term.
In sum, the petitioner was not the duly elected mayor and that he did not hold office for the
full term; hence, his assumption of office from May 1995 to March 1998 cannot be counted as a
term for purposes of computing the three term limit. The Resolution of the COMELEC finding
him disqualified on this ground to run in the May 1998 mayoral elections should therefore be set
aside.
The respondents harp on the delay in resolving the election protest between petitioner and
his then opponent Alvez which took roughly about three years and resultantly extended the
petitioners incumbency in an office to which he was not lawfully elected. We note that such
delay cannot be imputed to the petitioner. There is no specific allegation nor proof that the delay
was due to any political maneuvering on his part to prolong his stay in office. Moreover,
protestant Alvez, was not without legal recourse to move for the early resolution of the election
protest while it was pending before the regional trial court or to file a motion for the execution of
the regional trial courts decision declaring the position of mayor vacant and ordering the vice-
mayor to assume office while the appeal was pending with the COMELEC. Such delay which is
not here shown to have been intentionally sought by the petitioner to prolong his stay in office
cannot serve as basis to bar his right to be elected and to serve his chosen local government post
in the succeeding mayoral election.
The petitioners contention that the COMELEC ceased to have jurisdiction over the petition
for disqualification after he was proclaimed winner is without merit. The instant petition for
disqualification was filed on April 21, 1998 or before the May 1998 elections and was resolved
on May 21, 1998 or after the petitioners proclamation. It was held in the case of Sunga vs.
COMELEC and Trinidad
[7]
that the proclamation nor the assumption of office of a candidate
against whom a petition for disqualification is pending before the COMELEC does not divest the
COMELEC of jurisdiction to continue hearing the case and to resolve it on the merits.
Section 6 of RA 6646 specifically mandates that:
Sec. 6. Effects of disqualification Case.- any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the court or commission shall continue with the trial
and hearing of the action, inquiry or protest and, upon motion of the complainant or
any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong.
This court held that the clear legislative intent is that the COMELEC should continue the
trial and hearing of the disqualification case to its conclusion i.e., until judgment is
rendered. The outright dismissal of the petition for disqualification filed before the election but
which remained unresolved after the proclamation of the candidate sought to be disqualified will
unduly reward the said candidate and may encourage him to employ delaying tactics to impede
the resolution of the petition until after he has been proclaimed.
The court stated:
Clearly, the legislative intent is that the COMELEC should continue the trial and
hearing of the disqualification case to its conclusion, i.e., until judgment is rendered
thereon. The word shall signified that this requirement of the law is mandatory,
operating to impose a positive duty which must be enforced. Theimplication is that
the COMELEC is left with no discretion but to proceed with the disqualification case
even after the election. Thus, in providing for the outright dismissal of the
disqualification case which remains unresolved after the election, Silvestre vs.
Duavit in effect disallows what R. A. No. 6646 imperatively requires. This amounts
to a quasi-judicial legislation by the COMELEC which cannot be countenanced and is
invalid for having been issued beyond the scope of its authority. Interpretative rulings
of quasi-judicial bodies or administrative agencies must always be in perfect harmony
with statutes and should be for the sole purpose of carrying their general provisions
into effect. By such interpretative or administrative rulings, of course, the scope of
the law itself cannot be limited. Indeed, a quasi-judicial body or an administrative
agency for that matter cannot amend an act of Congress. Hence, in case of a
discrepancy between the basic law and an interpretative or administrative ruling, the
basic law prevails.
Besides, the deleterious effect of the Silvestre ruling is not difficult to forsee. A
candidate guilty of election offenses would be undeservedly rewarded, instead of
punished, by the dismissal of thedisqualification case against him simply because the
investigating body was unable, for any reason caused upon it, to determine before the
election if the offenses were indeed committed by the candidate sought to be
disqualified. All that the erring aspirant would need to do is to employ delaying
tactics so that the disqualification case based on the commission of election offenses
would not be decided before the election. This scenario is productive of more fraud
which certainly is not the main intent and purpose of the law.
The fact that Trinidad was already proclaimed and had assumed the position of mayor
did not divest the COMELEC of authority and jurisdiction to continue the hearing and
eventually decide the disqualification case. In Aguam v. COMELEC this Court held-
Time and again this Court has given its imprimatur on the principle that COMELEC
is with authority to annul any canvass and proclamation which was illegally
made. The fact that a candidate proclaimed has assumed office, we have said, is no
bar to the exercise of such power. It of course may not be availed of where there has
been a valid proclamation. Since private respondents petition before the COMELEC
is precisely directed at the annulment of the canvass and proclamation, we perceive
that inquiry into this issue is within the area allocated by the Constitution and law to
COMELEC xxx Really, were a victim of a proclamation to be precluded from
challenging the validity thereof after that proclamation and the assumption of office
thereunder, baneful effects may easily supervene.
It must be emphasized that the purpose of a disqualification proceeding is to prevent
the candidate from running or, if elected. From serving, or to prosecute him for
violation of the election laws. Obviously, the fact that a candidate has been
proclaimed elected does not signify that his disqualification is deemed condoned and
may no longer be the subject of a separate investigation.
ACCORDINGLY, the petition is granted. The assailed resolutions of the COMELEC
declaring petitioner Lonzanida disqualified to run for mayor in the 1998 mayoral elections are
hereby set aside.
SO ORDERED.
Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Purisima, Buena, and Ynares-Santiago, JJ., concur.
Davide, Jr., CJ., on leave.
Pardo, J., no part.



[1]

Records, Constitutional Commission, July 25, 1986, pp. 236, 238.
[2]

Ibid., pp. 236, 243-244; August 16, 1986, pp. 407-408.
[3]

G.R. No. 133495, September 3, 1998.
[4]

Ibid., pp. 7-8.
[5]

Torres vs. COMELEC, G.R. No. 121031, March 26, 1997; Ramirez vs. COMELEC, G.R. No. 122013, March 26,
1997.
[6]

Ramas vs. COMELEC, G. R. No. 130831, February 10, 1998.
[7]

G. R. No. 125629, March 25, 1998, 288 SCRA 76.
EN BANC
[G.R. No. 133495. September 3, 1998]
BENJAMIN U. BORJA, JR., petitioner vs. COMMISSION ON ELECTIONS
and JOSE T. CAPCO, JR., respondents.
D E C I S I O N
MENDOZA, J .:
This case presents for determination the scope of the constitutional provision barring
elective officials, with the exception of barangay officials, from serving more than three
consecutive terms. In particular, the question is whether a vice-mayor who succeeds to the office
of mayor by operation of law and serves the remainder of the term is considered to have served a
term in that office for the purpose of the three-term limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988
for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law,
upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor
for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected
mayor for another term of three years ending June 30, 1998.
[1]

On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of
Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja, Jr., who was also a
candidate for mayor, sought Capcos disqualification on the theory that the latter would have
already served as mayor for three consecutive terms by June 30, 1998 and would therefore be
ineligible to serve for another term after that.
On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of
petitioner and declared private respondent Capco disqualified from running for reelection as
mayor of Pateros.
[2]
However, on motion of private respondent, the COMELEC en banc, voting
5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998
elections.
[3]
The majority stated in its decision:
In both the Constitution and the Local
Government Code, the three-term limitation
refers to the term of office for which the
local official was elected. It made no
reference to succession to an office to which
he was not elected. In the case before the
Commission, respondent Capco was not
elected to the position of mayor in the
January 18, 1988 local elections. He
succeeded to such office by operation of law
and served for the unexpired term of his
predecessor. Consequently, such succession
into office is not counted as one (1) term for
purposes of the computation of the three-
term limitation under the Constitution and
the Local Government Code.
Accordingly, private respondent was voted for in the elections. He received 16,558 votes
against petitioners 7,773 votes and was proclaimed elected by the Municipal Board of
Canvassers.
This is a petition for certiorari brought to set aside the resolution, dated May 7, 1998, of he
COMELEC and to seed a declaration that private respondent is disqualified to serve another term
as Mayor of Pateros, Metro Manila.
Petitioner contends that private respondent Capcos service as mayor from September 2,
1989 to June 30, 992 should be considered as service for full one term, and since he thereafter
served from 1992 to 1998 two more terms as mayor, he should be considered to have served
three consecutive terms within the contemplation of Art. X, 8 of the Constitution and 43(b) of
the Local Government Code. Petitioner stresses the fact that, upon the death of Mayor Cesar
Borja on September 2, 1989, private respondent became the mayor and thereafter served the
remainder of the term. Petitioner argues that it is irrelevant that private respondent became
mayor by succession because the purpose of the constitutional provision in limiting the number
of terms elective local officials may serve is to prevent a monopolization of political power.
This contention will not bear analysis. Article X, 8 of the Constitution provides:
SEC. 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official shall serve
for more than three consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.
This provision is restated in 43(b) of the Local Government Code (R.A. No. 7160):
Sec. 43. Term of Office - . . .
(b) No local elective official shall serve for more than three (3) consecutive terms
in the same position. Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the continuity of service for the
full term for which the elective official concerned was elected.
First, to prevent the establishment of political dynasties is not the only policy embodied in
the constitutional provision in question. The other policy is that of enhancing the freedom of
choice of the people. To consider, therefore, only stay in office regardless of how the official
concerned came to that office whether by election or by succession by operation of law
would be to disregard one of the purposes of the constitutional provision in question.
Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals
that the members of the Constitutional Commission were as much concerned with preserving the
freedom of choice of the people as they were with preventing the monopolization of political
power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after
serving three consecutive terms or nine years there should be no further reelection for local and
legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian
Monsod that such officials be simply barred from running for the same position in the
succeeding election following the expiration of the third consecutive term.
[4]
Monsod warned
against prescreening candidates [from] whom the people will choose as a result of the
proposed absolute disqualification, considering that the draft constitution provision recognizing
peoples power.
[5]

Commissioner Blas F. Ople, who supported the Monsod proposal, said:
The principle involved is really whether this Commission shall impose a temporary or a
perpetual disqualification on those who have served their terms in accordance with the limits on
consecutive service as decided by the Constitutional Commission. I would be very wary about
this Commission exercising a sort of omnipotent power in order to disqualify those who will
already have served their terms from perpetuating themselves in office. I think the Commission
achieves its purpose in establishing safeguards against the excessive accumulation of power as a
result of consecutive terms. We do put a cap on consecutive service in the case of the
President, six years; in the case of the Vice-President, unlimited; and in the case of the Senators,
one reelection. In the case of the Members of Congress, both from the legislative districts and
from the party list and sectoral representation, this is now under discussion and later on the
policy concerning local officials will be taken up by the Committee on Local Governments. The
principle remains the same. I think we want to prevent future situations where, as a result of
continuous service and frequent reelections, officials from the President down to the municipal
mayor tend to develop a proprietary interest in their position and to accumulate those powers and
perquisites that permit them to stay on indefinitely or to transfer these posts to members of their
families in a subsequent election. I think that is taken care of because we put a gap on the
continuity or the unbroken service of all of these officials. But where we now decide to put these
prospective servants of the people or politicians, if we want to use the coarser term, under a
perpetual disqualification, I have a feeling that we are taking away too much from the people,
whereas we should be giving as much to the people as we can in terms of their own freedom of
choice.
[6]

Other commissioners went on record against perpetually disqualifying elective officials
who have served a certain number of terms as this would deny the right of the people to
choose. As Commissioner Yusup R. Abubakar asked, why should we arrogate unto ourselves
the right to decide what the people want?
[7]

Commisioner Felicitas S. Aquino spoke in the same vein when she called on her colleagues
to "allow the people to exercise their own sense of proportion and [rely] on their own strength to
curtail power when it overreaches itself.
[8]

Commissioner Teodoro C. Bacani stressed: Why should we not leave [perpetual
disqualification after serving a number of terms] to the premise accepted by practically
everybody here that our people are politically mature? Should we use this assumption only when
it is convenient for us, and not when it may also lead to a freedom of choice for the people and
for politicians who may aspire to serve them longer?
[9]

Two ideas thus emerge from a consideration of the proceedings of the Constitutional
Commission. The first is the notion of service of term, derived from the concern about the
accumulation of power as a result of a prolonged stay in office. The second is the idea
of election, derived from the concern that the right of the people to choose those whom they wish
to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did
so on the assumption that the officials concerned were serving by reason of reelection. This is
clear from the following exchange in the Constitutional Commission concerning term limits,
now embodied in Art. VI 4 and 7 of the Constitution, for members of Congress:
MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will
allow the Senator to rest for a period of time before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before if the Gentlemen will remember-
was: How long will that period of rest be? Will it be one election which is three years or one
term which is six years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view
that during the election following the expiration of the first 12 years, whether
such election will be on the third year or on the sixth year thereafter, this particular
member of the Senate can run. So it is not really a period of hibernation for six
years. That was the Committees stand.
[10]

Indeed, a fundamental tenet of representative democracy is that the people should be
allowed to choose whom they please to govern them.
[11]
To bar the election of a local official
because he has already served three terms, although the first as a result of succession by
operation of law rather than election, would therefore be to violate this principle.
Second, not only historical examination but textual analysis as well supports the ruling of
the COMELEC that Art. X, 8 contemplates service by local officials for three consecutive
terms as a result of election. The first sentence speaks of the term of office of elective local
officials and bars such official[s] from serving for more than three consecutive terms. The
second sentence, in explaining when an elective local official may be deemed to have served his
full term of office, states that voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of his service for the full term for which he
was elected. The term served must therefore be one for which [the official concerned] was
elected. The purpose of this provision is to prevent a circumvention of the limitation on the
number of terms an elective official may serve. Conversely, if he is not serving a term for which
he was elected because he is simply continuing the service of the official he succeeds, such
official cannot be considered to have fully served the term now withstanding his voluntary
renunciation of office prior to its expiration.
Reference is made to Commissioner Bernas comment on Art. VI, 7, which similarly bars
members of the House of Representatives from serving for more than three
terms. Commissioner Bernas states that if one is elected Representative to serve the unexpired
term of another, that unexpired term, no matter how short, will be considered one term for the
purpose of computing the number of successive terms allowed.
[12]

This is actually based on the opinion expressed by Commissioner Davide in answer to a
query of Commissioner Suarez: For example, a special election is called for a Senator, and the
Senator newly elected would have to serve the unexpired portion of the term. Would that mean
that serving the unexpired portion of the term is already considered one term? So, half a term,
which is actually the correct statement, plus one term would disqualify the Senator concerned
from running? Is that the meaning of this provision on disqualification, Madam
President? Commissioner Davide said: Yes, because we speak of term and if there is a
special election, he will serve only for the unexpired portion of that particular term plus one
more term for the Senator and two more terms for the Members of the Lower House.
[13]

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



[1]
Rollo, pp. 5-6, 124-125.
[2]
Id., pp. 63-71.
[3]
Id., pp. 30-32.
[4]
2 RECORD OF THE CONSTITUTIONAL COMMISSION 236-243 (Session of July 25, 1986) (hereafter cited
as RECORD)
[5]
Id., at 236.
[6]
Id., at 239-240.
[7]
Id., at 242.
[8]
Id., at 242.
[9]
Id., at 243.
[10]
Id., 590 (August 7, 1986).
[11]
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 131 L. Ed. 2d 881 (1995)
[12]
JOAQUIN BERNAS,THE 1987 CONSTITUTION 637 (1996).
[13]
2 RECORD 592 (Session of August 7, 1986).
[14]
LOCAL GOVERNMENT CODE of 1991, R.A. No. 7160, 44(a).
[15]
Art. VI, 8.
[16]
R.A. No. 7160, 445 (1991).
EN BANC


FRANCIS G. ONG, G.R. No.
163295 Petitioner,

Present:

PANGANIBAN, C.J.
PUNO,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
- versus - CARPIO
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO, and
GARCIA, JJ.

JOSEPH STANLEY ALEGRE and Promulgated:
COMMISSION ON ELECTIONS,
Respondents. January 23, 2006
x - - - - - - - - - - - - - - - - - - - - - x

ROMMEL G. ONG,
Petitioner,


- versus - G.R. No. 163354


JOSEPH STANLEY ALEGRE and
COMMISSION ON ELECTIONS,
Respondents.
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
D E C I S I O N


GARCIA, J.:


Before the Court are these two separate petitions under Rule 65 of
the Rules of Court to nullify and set aside certain issuances of the
Commission on Elections (COMELEC) en banc.

The first, docketed as G.R. No. 163295, is a petition
for certiorari with petitioner Francis G. Ong impugning the COMELEC en
banc resolution
[1]
dated May 7, 2004 in SPA Case No. 04-048, granting
private respondent Joseph Stanley Alegre's motion for reconsideration of
the resolution dated March 31, 2004
[2]
of the COMELECs First Division.

The second, G.R. No. 163354, is for certiorari, prohibition and
mandamus, with application for injunctive relief, filed by petitioner Rommel
Ong, brother of Francis, seeking, among other things, to stop the
COMELEC from enforcing and implementing its aforesaid May 7, 2004 en
banc resolution in SPA Case No. 04-048 pending the outcome of the
petition in G.R. No. 163295.

Per its en banc Resolution of June 1, 2004, the Court ordered the
consolidation of these petitions.

The recourse stemmed from the following essential and undisputed
factual backdrop:

Private respondent Joseph Stanley Alegre (Alegre) and
petitioner Francis Ong (Francis) were candidates who filed certificates of
candidacy for mayor of San Vicente, Camarines Norte in the May 10,
2004 elections. Francis was then the incumbent mayor.

On January 9, 2004, Alegre filed with the COMELEC Provincial Office
a Petition to Disqualify, Deny Due Course and Cancel Certificate of
Candidacy
[3]
of Francis. Docketed as SPA Case No. 04-048, the petition
to disqualify was predicated on the three-consecutive term rule, Francis
having, according to Alegre, ran in the May 1995, May 1998, and May 2001
mayoralty elections and have assumed office as mayor and discharged the
duties thereof for three (3) consecutive full terms corresponding to those
elections.

To digress a bit, the May 1998 elections saw both Alegre and Francis
opposing each other for the office of mayor of San Vicente, Camarines
Norte, with the latter being subsequently proclaimed by COMELEC winner
in that contest. Alegre subsequently filed an election protest, docketed as
Election Case No. 6850 before the Regional Trial Court (RTC) at Daet,
Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor
in that 1998 mayoralty contest,
[4]
albeit the decision came out only on July
4, 2001, when Francis had fully served the 1998-2001 mayoralty term and
was in fact already starting to serve the 2001-2004 term as mayor-
elect of the municipality of San Vicente.

Acting on Alegres petition to disqualify and to cancel Francis
certificate of candidacy for the May 10, 2004 elections, the First Division of
the COMELEC rendered on March 31, 2004 a resolution
[5]
dismissing the
said petition of Alegre, rationalizing as follows:

We see the circumstances in the case now before us analogous to those obtaining in the sample situations
addressed by the Highest Court in the Borja case. Herein, one of the requisites for the application of the three term rule is
not present. Francis Ong might have indeed fully served the mayoral terms of 1995 to 1998; 1998 to 2001 and 2001 to
2004. The mayoral term however, from 1998 to 2001 cannot be considered his because he was not duly elected
thereto. The [RTC] of Daet, Camarines Norte, Branch 41 has voided his election for the 1998 term when it held, in its
decision that Stanley Alegre was the legally elected mayor in the 1998 mayoralty election in San Vicente, Camarines
Norte. This disposition had become final after the [COMELEC] dismissed the appeal filed by Ong, the case having
become moot and academic.

xxx xxx xxx

On the basis of the words of the Highest Court pronounced in the Lonzanida case and applicable in the case at
bench, Ong could not be considered as having served as mayor from 1998 to 2001 because he was not duly elected to
the post; he merely assumed office as a presumptive winner; which presumption was later overturned when *the RTC+
decided with finality that *he+ lost in the May 1998 elections. (Words in bracket and emphasis in the original).


Undaunted, Alegre filed a timely motion for reconsideration,
contending, in the main, that there was a misapplication of the three-term
rule, as applied in the cited cases of Borja vs. Comelec and Lonzanida vs.
Comelec, infra.


On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a
resolution
[6]
reversing the March 31, 2004 resolution of the COMELECs First
Division and thereby (a) declaring Francis as disqualified to run for mayor
of San Vicente, Camarines Norte in the May 10, 2004; (b) ordering the
deletion of Francis name from the official list of candidates; and (c)
directing the concerned board of election inspectors not to count the votes
cast in his favor.

The following day, May 8, Francis received a fax machine copy of
the aforecited May 7, 2004 resolution, sending him posthaste to seek the
assistance of his political party, the Nationalist Peoples Coalition, which
immediately nominated his older brother, Rommel Ong (Rommel), as
substitute candidate. At about 5:05 p.m. of the very same day - which is
past the deadline for filing a certificate of candidacy, Rommel filed his own
certificate of candidacy for the position of mayor, as substitute candidate
for his brother Francis.

The following undisputed events then transpired:

1. On May 9, 2004, or a day before the May 10 elections, Alegre filed a Petition to Deny Due Course to or Cancel
Certificate of Rommel Ong.

2. Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a letter
[7]
to Provincial Election Supervisor (PES) of
Camarines Norte Liza Z. Cario and Acting Election Officer Emily G. Basilonia in which he appealed that, owing to the COMELECs
inaction on Alegre's petition to cancel Rommels certificate of candidacy, the name Rommel Ong be included in the official certified
list of candidates for mayor of San Vicente, Camarines Norte. The desired listing was granted by the PES Carino.

3. On May 10, 2004, Alegre wrote
[8]
to then COMELEC Commissioner Virgilio Garcillano, Commissioner-in-Charge for
Regions IV and V, seeking clarification on the legality of the action thus taken by the PES Cario. Responding, Commissioner
Garcillano issued a Memorandum under date May 10, 2004
[9]
addressed to PES Liza D. Zabala-Cario, ordering her to implement the
resolution of the COMELEC en banc in SPA No. 04-048 promulgated on May 7, 2004.
[10]
Said Memorandum partly stated:

The undersigned ADOPTS the recommendation of Atty. Alioden D. Dalaig [Director IV, Law Department],
which he quote your stand, "that substitution is not proper if the certificate of the substituted candidacy is denied due
course. In the Resolution of the Commission En banc, the Certificate of candidacy of Francis Ong was denied due course,"
and elaborated further that:

"x x x there is an existing policy of the Commission not to include the name of a
substitute candidate in the certified list of candidates unless the substitution is approved by the
Commission.

In view, thereof, it is recommended that 1) the
substitute certificate of candidacy of Rommel Ong Gan Ong,
should be denied due course; and 2) the election officer be directed to delete his name from
the list of candidates."

The above position of the Commission was in line with the pronouncement of Supreme Court in Miranda vs.
Abaya (311 SCRA 617) which states:

"There can no valid substitution where a candidate is excluded not only by
disqualification but also by denial and cancellation of his certificate of candidacy."

In view thereof, you are hereby directed to faithfully implement the said Resolution of the Commission En
Banc in SPA No. 04-048 promulgated on May 7, 2004. (Emphasis in the original; words in bracket added].


4. Owing to the aforementioned Garcillano Memorandum, it would seem that the Chairman of the Municipal Board of
Canvasser of San Vicente issued an order enjoining all concerned not to canvass the votes cast for Rommel, prompting the latter to
file a protest with that Board.
[11]


5. On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre as the winning candidate for the mayoralty
post in San Vicente, Camarines Norte.
[12]



On May 12, 2004, Francis filed before the Court a petition
for certiorari, presently docketed as G.R. No. 163295. His brother
Rommels petition in G.R. No. 163354 followed barely a week after.

In our en banc resolution dated June 1, 2004, G.R. No.
163295 and G.R. No. 163354 were consolidated.
[13]


Meanwhile, on June 4, 2004, the COMELEC issued an order
dismissing private respondent Alegres Petition to Deny Due Course to or
Cancel Certificate of Candidacy of Rommel Ong, for being moot and
academic.
[14]


The issues for resolution of the Court are:

In G.R. No. 163295, whether the COMELEC acted with grave abuse
of discretion amounting to lack or excess of jurisdiction in issuing its en
bancresolution dated May 7, 2004 declaring petitioner Francis as
disqualified to run for Mayor of San Vicente, Camarines Norte in the May
10, 2004 elections and consequently ordering the deletion of his name
from the official list of candidates so that any vote cast in his favor shall be
considered stray.

In G.R. No. 163354, whether the COMELEC committed grave abuse
of discretion when it denied due course to Rommels certificate of
candidacy in the same mayoralty election as substitute for his brother
Francis.

A resolution of the issues thus formulated hinges on the question of
whether or not petitioner Franciss assumption of office as Mayor of San
Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be
considered as full service for the purpose of the three-term limit rule.

Respondent COMELEC resolved the question in the affirmative.
Petitioner Francis, on the other hand, disagrees. He argues that, while he
indeed assumed office and discharged the duties as Mayor of San Vicente
for three consecutive terms, his proclamation as mayor-elect in the May
1998 election was contested and eventually nullified per the decision of the
RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point,
petitioner argues, citingLonzanida vs. Comelec
[15]
, that a proclamation
subsequently declared void is no proclamation at all and one assuming
office on the strength of a protested proclamation does so as a
presumptive winner and subject to the final outcome of the election
protest.

The three-term limit rule for elective local officials is found in Section
8, Article X of the 1987 Constitution, which provides:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law,
shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the
office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for
which he was elected.


Section 43 (b) of the Local Government Code restates the same rule
as follows:

Sec. 43. Term of Office.

xxx xxx xxx

(b) No local elective official shall serve for more than three consecutive years in the same position. Voluntary
renunciation of the office for any length of time shall not be considered an interruption in the continuity of service for the
full term for which the elective official concerned was elected.


For the three-term limit for elective local government officials to
apply, two conditions or requisites must concur, to wit: (1) that the official
concerned has been elected for three (3) consecutive terms in the same
local government post, and (2) that he has fully served three (3)
consecutive terms.
[16]


With the view we take of the case, the disqualifying requisites are
present herein, thus effectively barring petitioner Francis from running for
mayor of San Vicente, Camarines Norte in the May 10, 2004 elections.
There can be no dispute about petitioner Francis Ong having been duly
elected mayor of that municipality in the May 1995 and again in the May
2001 elections and serving the July 1, 1995- June 30, 1998 and the July 1,
2001-June 30, 2004 terms in full. The herein controversy revolves around
the 1998-2001 mayoral term, albeit there can also be no quibbling that
Francis ran for mayor of the same municipality in the May 1998 elections
and actually served the 1998-2001 mayoral term by virtue of a
proclamation initially declaring him mayor-elect of the municipality of San
Vicente. The question that begs to be addressed, therefore, is
whether or not Franciss assumption of office as Mayor of San
Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may
be considered as one full term service in the context of the
consecutive three-term limit rule.

We hold that such assumption of office constitutes, for Francis,
service for the full term, and should be counted as a full term served in
contemplation of the three-term limit prescribed by the constitutional and
statutory provisions, supra, barring local elective officials from being
elected and serving for more than three consecutive term for the same
position.

It is true that the RTC-Daet, Camarines Norte ruled in Election Protest
Case No. 6850,
[17]
that it was Francis opponent (Alegre) who won in the
1998 mayoralty race and, therefore, was the legally elected mayor of San
Vicente. However, that disposition, it must be stressed, was without
practical and legal use and value, having been promulgated after the term
of the contested office has expired. Petitioner Francis contention that he
was only a presumptive winner in the 1998 mayoralty derby as his
proclamation was under protest did not make him less than a duly elected
mayor. His proclamation by the Municipal Board of Canvassers of San
Vicente as the duly elected mayor in the 1998 mayoralty election coupled
by his assumption of office and his continuous exercise of the functions
thereof from start to finish of the term, should legally be taken as service
for a full term in contemplation of the three-term rule.

The absurdity and the deleterious effect of a contrary view is not
hard to discern. Such contrary view would mean that Alegre would under
the three-term rule - be considered as having served a term by virtue of a
veritably meaningless electoral protest ruling, when another actually served
such term pursuant to a proclamation made in due course after an
election.


Petitioner cites, but, to our mind, cannot seek refuge from the Courts
ruling in, Lonzanida vs. Comelec,
[18]
citing Borja vs.
Comelec
[19]
. In Lonzanida, petitioner Lonzanida was elected and served for
two consecutive terms as mayor of San Antonio, Zambales prior to the May
8, 1995 elections. He then ran again for the same position in the May
1995 elections, won and discharged his duties as Mayor. However, his
opponent contested his proclamation and filed an election protest before
the RTC of Zambales, which, in a decision dated January 9, 1997, ruled
that there was a failure of elections and declared the position vacant. The
COMELEC affirmed this ruling and petitioner Lonzanida acceded to the
order to vacate the post. Lonzanida assumed the office and performed his
duties up to March 1998 only. Now, during the May 1998 elections,
Lonzanida again ran for mayor of the same town. A petition to disqualify,
under the three-term rule, was filed and was eventually granted. There,
the Court held that Lonzanida cannot be considered as having been duly
elected to the post in the May 1995 election, and that he did not fully serve
the 1995-1998 mayoralty term by reason of involuntary relinquishment of
office. As the Court pointedly observed, Lonzanida cannot be deemed to
have served the May 1995 to 1998 term because he was ordered to vacate
[and in fact vacated] his post before the expiration of the term.

The difference between the case at bench and Lonzanida is at once
apparent. For one, in Lonzanida, the result of the mayoralty election was
declared a nullity for the stated reason of failure of election, and, as a
consequence thereof, the proclamation of Lonzanida as mayor-elect was
nullified, followed by an order for him to vacate the office of mayor. For
another, Lonzanida did not fully serve the 1995-1998 mayoral term, there
being an involuntary severance from office as a result of legal processes.
In fine, there was an effective interruption of the continuity of service.

On the other hand, the failure-of-election factor does not obtain in
the present case. But more importantly, here, there was actually no
interruption or break in the continuity of Francis service respecting the
1998-2001 term. Unlike Lonzanida, Francis was never unseated during the
term in question; he never ceased discharging his duties and
responsibilities as mayor of San Vicente, Camarines Norte for the entire
period covering the 1998-2001 term.

The ascription, therefore, of grave abuse of discretion on the part of
the COMELEC en banc when it disqualified Francis from running in the May
10, 2004 elections for the mayoralty post of San Vicente and denying due
course to his certificate of candidacy by force of the constitutional and
statutory provisions regarding the three-term limit rule for any local
elective official cannot be sustained. What the COMELEC en banc said in
its May 7, 2004 assailed Resolution commends itself for concurrence:

As correctly pointed out by Petitioner-Movant [Alegre]in applying the ruling in
the Borja and Lonzanida cases in the instant petition will be erroneous because the
factual milieu in those cases is different from the one obtaining here. Explicitly, the
three-term limit was not made applicable in the cases of Borja and Lonzanida because
there was an interruption in the continuity of service of the three consecutive
terms. Here, Respondent Ong would have served continuously for three consecutive
terms, from 1995 to 2004. His full term from 1998 to 2001 could not be simply
discounted on the basis that he was not duly elected thereto on account of void
proclamation because it would have iniquitous effects producing outright injustice and
inequality as it rewards a legally disqualified and repudiated loser with a crown of
victory. (Word in bracket added; emphasis in the original)


Given the foregoing consideration, the question of whether or not
then Commissioner Virgilio Garcillano overstepped his discretion when he
issued the May 10, 2004 Memorandum, ordering the implementation of
aforesaid May 7, 2004 COMELEC en banc resolution even before its
finality
[20]
is now of little moment and need not detain us any longer.

Just as unmeritorious as Francis petition in G.R. No. 163295 is
Rommels petition in G.R. No. 163354 in which he (Rommel) challenges the
COMELEC's act of not including his name as a substitute candidate in the
official list of candidates for the May 10, 2004 elections. As it were, existing
COMELEC policy
[21]
provides for the non-inclusion of the name of substitute
candidates in the certified list of candidates pending approval of
the substitution.

Not to be overlooked is the Courts holding in Miranda vs.
Abaya,
[22]
that a candidate whose certificate of candidacy has been
cancelled or not given due course cannot be substituted by another
belonging to the same political party as that of the former, thus:

While there is no dispute as to whether or not a nominee of a registered or
accredited political party may substitute for a candidate of the same party who
had been disqualified for any cause, this does not include those cases where the
certificate of candidacy of the person to be substituted had been denied due course
and cancelled under Section 78 of the Code.

Expressio unius est exclusio alterius. While the law enumerated the
occasions where a candidate may be validly substituted, there is no mention of the
case where a candidate is excluded not only by disqualification but also by denial
and cancellation of his certificate of candidacy. Under the foregoing rule, there
can be no valid substitution for the latter case, much in the same way that a
nuisance candidate whose certificate of candidacy is denied due course and/or
cancelled may not be substituted. If the intent of the lawmakers were otherwise,
they could have so easily and conveniently included those persons whose
certificates of candidacy have been denied due course and/or cancelled under the
provisions of Section 78 of the Code.

xxx xxx xxx

A person without a valid certificate of candidacy cannot be considered a
candidate in much the same way as any person who has not filed any certificate of
candidacy at all can not, by any stretch of the imagination, be a candidate at all.

xxx xxx xxx

After having considered the importance of a certificate of candidacy, it can
be readily understood why in Bautista [Bautista vs. Comelec, G.R. No. 133840,
November 13, 1998] we ruled that a person with a cancelled certificate is no
candidate at all. Applying this principle to the case at bar and considering that
Section 77 of the Code is clear and unequivocal that only an official candidate of
a registered or accredited party may be substituted, there demonstrably cannot be
any possible substitution of a person whose certificate of candidacy has been
cancelled and denied due course.


In any event, with the hard reality that the May 10, 2004 elections
were already pass, Rommel Ongs petition in G.R. No. 163354 is already
moot and academic.

WHEREFORE, the instant petitions are DISMISSED and the
assailed en banc Resolution dated May 7, 2004 of the COMELEC, in SPA
No. 04-048 AFFIRMED.

Costs against petitioners.

SO ORDERED.


CANCIO C. GARCIA
Associate Justice


WE CONCUR:



ARTEMIO V. PANGANIBAN
Chief Justice



REYNATO S. PUNO
Associate Justice



LEONARDO A. QUISUMBING
Associate Justice



CONSUELO YNARES-SANTIAGO
Associate Justice


ANGELINA SANDOVAL-GUTIERREZ
Associate Justice



ANTONIO T. CARPIO
Associate Justice



MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice



RENATO C. CORONA
Associate Justice



CONCHITA CARPIO MORALES
Associate Justice



ROMEO J. CALLEJO, SR.
Associate Justice



ADOLFO S. AZCUNA
Associate Justice



DANTE O. TINGA



MINITA V. CHICO-NAZARIO
Associate Justice Associate Justice


C E R T I F I C A T I O N

Pursuant to Article VIII, Section 13 of the Constitution, and the
Division Chairman's Attestation, it is hereby certified that the conclusions in
the above decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.



ARTEMIO V. PANGANIBAN
Chief Justice





[1]
Rollo in G.R. No. 163295, pp. 29-34.
[2]
Rollo in G.R. No. 163295, pp. 20-28.

[3]
Annex "A", Francis Ong's Petition for Certiorari, Rollo in G.R. No. 163295, pp. 15-19.
[4]
Annex "D", Francis Ong's Petition for Certiorari, Rollo in G.R. No. 163295, pp. 35-41.
[5]
Annex "B", Francis Ong's Petition for Certiorari, Rollo in G.R. No. 163295, pp. 20-28.
[6]
Annex "C", Francis Ong's Petition for Certiorari, Rollo in G.R. No. 163295, pp. 29-34.
[7]
Annex "E", Rommel Ong's Petition for Certiorari, Rollo in G.R. No. 163354, p. 46.
[8]
Annex "3", Alegre's Comment on Rommel Ong's Petition for Certiorari, Rollo in G.R. No. 163354, pp.
113-114.
[9]
Annex "4", Alegre's Comment on Rommel Ong's Petition for Certiorari, Rollo in G.R. No. 163354, pp.
115-116.
[10]
Vide Note #7, supra.
[11]
Annex "J", Rommel Ong's Petition, Rollo in G.R. No. 163354, p. 53.
[12]
Annex "5" Alegre's Comment on Rommel Ong's Petition for Certiorari, Rollo in G. R. No. 163354, p.
117.
[13]
Rollo in G.R. No. 163354, p. 63.
[14]
Ibid, pp.124-125.
[15]
311 SCRA 602 [1999].
[16]
Adormeo vs. Comelec, 376 SCRA 90 [2002] citing Lonzanida vs. Comelec, 311 SCRA 602 [1999].

[17]
See Note # 4, supra.
[18]
See Note No. 15, supra.
[19]
295 SCRA 157 (1998).
[20]
Section 13, Rule 18 of the COMELEC Rules of Procedure on the Finality of its Decision provides:
Sec. 13. Finality of Decision or Resolutions. - (a) In ordinary actions, special proceedings,
provisional remedies, and special reliefs, a decision or resolution of the Commission en banc shall
become final and executory after thirty (30) days from its promulgation. (b) In Special Actions
and Special cases, [such as a petition to disqualify} a decision or resolution of the Commission en
banc shall become final and executory after five (5) days from its promulgation unless restrained
by the Supreme Court.

(c) Unless a motion for reconsideration is seasonably filed, a decision or resolution of a
Division shall become final and executory after the lapse of five (5) days in Special Actions and
Special cases and after fifteen (15) days in all other actions or proceedings, following its
promulgation.
[21]
Cited in Commissioner Garcillanos Memorandum of May 10, 2004; see Note #9, supra.
[22]
G.R. No. 136351, July 28, 1999, 311 SCRA 617, 624-626.









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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 184836 December 23, 2009
SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N. TALABONG, Petitioners,
vs.
COMMISSION ON ELECTIONS AND WILFREDO F. ASILO, Respondents.
D E C I S I O N
BRION, J .:
Is the preventive suspension of an elected public official an interruption of his term of office for purposes of the three-term limit
rule under Section 8, Article X of the Constitution and Section 43(b) of Republic Act No. 7160 (RA 7160, or the Local
Government Code)?
The respondent Commission on Elections (COMELEC) ruled that preventive suspension is an effective interruption because it
renders the suspended public official unable to provide complete service for the full term; thus, such term should not be counted
for the purpose of the three-term limit rule.
The present petition
1
seeks to annul and set aside this COMELEC ruling for having been issued with grave abuse of discretion
amounting to lack or excess of jurisdiction.
THE ANTECEDENTS
The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three consecutive terms: for the 1998-2001,
2001-2004, and 2004-2007 terms, respectively. In September 2005 or during his 2004-2007 term of office, the Sandiganbayan
preventively suspended him for 90 days in relation with a criminal case he then faced.This Court, however, subsequently lifted
the Sandiganbayans suspension order; hence, he resumed performing the functions of his office and finished his term.
In the 2007 election, Asilo filed his certificate of candidacy for the same position. The petitioners Simon B. Aldovino, Jr., Danilo B.
Faller, and Ferdinand N. Talabong (the petitioners) sought to deny due course to Asilos certificate of candidacy or to cancel it on
the ground that he had been elected and had served for three terms; his candidacy for a fourth term therefore violated the three-
term limit rule under Section 8, Article X of the Constitution and Section 43(b) of RA 7160.
The COMELECs Second Division ruled against the petitioners and in Asilos favour in its Resolution of November 28, 2007. It
reasoned out that the three-term limit rule did not apply, as Asilo failed to render complete service for the 2004-2007 term
because of the suspension the Sandiganbayan had ordered.
The COMELEC en banc refused to reconsider the Second Divisions ruling in its October 7, 2008 Resolution; hence,
the PRESENT PETITION raising the following ISSUES:
1. Whether preventive suspension of an elected local official is an interruption of the three-term limit rule; and
2. Whether preventive suspension is considered involuntary renunciation as contemplated in Section 43(b) of RA
7160
Thus presented, the case raises the direct issue of whether Asilos preventive suspension constituted an interruption that allowed
him to run for a 4th term.
THE COURTS RULING
We find the petition meritorious.
General Considerations
The present case is not the first before this Court on the three-term limit provision of the Constitution, but is the first on the effect
of preventive suspension on the continuity of an elective officials term. To be sure, preventive suspension, as an interruption in
the term of an elective public official, has been mentioned as an example in Borja v. Commission on Elections.
2
Doctrinally,
however, Borja is not a controlling ruling; it did not deal with preventive suspension, but with the application of the three-term rule
on the term that an elective official acquired by succession.
a. The Three-term Limit Rule:
The Constitutional Provision Analyzed
Section 8, Article X of the Constitution states:
Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three
years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.
Section 43 (b) of RA 7160 practically repeats the constitutional provision, and any difference in wording does not assume any
significance in this case.
As worded, the constitutional provision fixes the term of a local elective office and limits an elective officials stay in office to no
more than three consecutive terms. This is the first branch of the rule embodied in Section 8, Article X.
Significantly, this provision refers to a "term" as a period of time three years during which an official has title to office and can
serve. Appari v. Court of Appeals,
3
a Resolution promulgated on November 28, 2007, succinctly discusses what a "term"
connotes, as follows:
The word "term" in a legal sense means a fixed and definite period of time which the law describes that an officer may
hold an office. According to Mechem, the term of office is the period during which an office may be held. Upon expiration of the
officers term, unless he is authorized by law to holdover, his rights, duties and authority as a public officer must ipso facto cease.
In the law of public officers, the most and natural frequent method by which a public officer ceases to be such is by the expiration
of the terms for which he was elected or appointed. [Emphasis supplied].1avvphi 1
A later case, Gaminde v. Commission on Audit,
4
reiterated that "[T]he term means the time during which the officer may claim to
hold office as of right, and fixes the interval after which the several incumbents shall succeed one another."
The "limitation" under this first branch of the provision is expressed in the negative "no such official shall serve for more than
three consecutive terms." This formulation no more than three consecutive terms is a clear command suggesting the
existence of an inflexible rule. While it gives no exact indication of what to "serve. . . three consecutive terms" exactly connotes,
the meaning is clear reference is to the term, not to the service that a public official may render.1awphi1 In other words, the limitation
refers to the term.
The second branch relates to the provisions express initiative to prevent any circumvention of the limitation through voluntary
severance of ties with the public office; it expressly states that voluntary renunciation of office "shall not be considered as an
interruption in the continuity of his service for the full term for which he was elected." This declaration complements
the term limitation mandated by the first branch.
A notable feature of the second branch is that it does not textually state that voluntary renunciation is the only actual interruption
of service that does not affect "continuity of service for a full term" for purposes of the three-term limit rule. It is a pure declaratory
statement of what does not serve as an interruption of service for a full term, but the phrase "voluntary renunciation," by itself, is
not without significance in determining constitutional intent.
The word "renunciation" carries the dictionary meaning of abandonment. To renounce is to give up, abandon, decline, or
resign.
5
It is an act that emanates from its author, as contrasted to an act that operates from the outside. Read with the definition
of a "term" in mind, renunciation, as mentioned under the second branch of the constitutional provision, cannot but mean an act
that results in cutting short the term, i.e., the loss of title to office. The descriptive word "voluntary" linked together with
"renunciation" signifies an act of surrender based on the surenderees own freely exercised will; in other words, a loss of title to
office by conscious choice. In the context of the three-term limit rule, such loss of title is not considered an interruption because it
is presumed to be purposely sought to avoid the application of the term limitation.
The following exchanges in the deliberations of the Constitutional Commission on the term "voluntary renunciation" shed further
light on the extent of the term "voluntary renunciation":
MR. MAAMBONG. Could I address the clarificatory question to the Committee? This term "voluntary renunciation" does not
appear in Section 3 [of Article VI]; it also appears in Section 6 [of Article VI].
MR DAVIDE. Yes.
MR. MAAMBONG. It is also a recurring phrase all over the Constitution. Could the Committee please enlighten us exactly what
"voluntary renunciation" mean? Is this akin to abandonment?
MR. DAVIDE. Abandonment is voluntary. In other words, he cannot circumvent the restriction by merely resigning at any given
time on the second term.
MR. MAAMBONG. Is the Committee saying that the term "voluntary renunciation" is more general than abandonment and
resignation?
MR. DAVIDE. It is more general, more embracing.
6

From this exchange and Commissioner Davides expansive interpretation of the term "voluntary renunciation," the framers intent
apparently was to close all gaps that an elective official may seize to defeat the three-term limit rule, in the way that voluntary
renunciation has been rendered unavailable as a mode of defeating the three-term limit rule. Harking back to the text of the
constitutional provision, we note further that Commissioner Davides view is consistent with the negative formulation of the first
branch of the provision and the inflexible interpretation that it suggests.
This examination of the wording of the constitutional provision and of the circumstances surrounding its formulation impresses
upon us the clear intent to make term limitation a high priority constitutional objective whose terms must be strictly construed and
which cannot be defeated by, nor sacrificed for, values of less than equal constitutional worth. We view preventive
suspension vis--vis term limitation with this firm mindset.
b. Relevant Jurisprudence on the
Three-term Limit Rule
Other than the above-cited materials, jurisprudence best gives us a lead into the concepts within the provisions contemplation,
particularly on the "interruption in the continuity of service for the full term" that it speaks of.
Lonzanida v. Commission on Elections
7
presented the question of whether the disqualification on the basis of the three-term limit
applies if the election of the public official (to be strictly accurate, the proclamation as winner of the public official) for his
supposedly third term had been declared invalid in a final and executory judgment. We ruled that the two requisites for the
application of the disqualification (viz., 1. that the official concerned has been elected for three consecutive terms in the same
local government post; and 2. that he has fully served three consecutive terms) were not present. In so ruling, we said:
The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation
of office and at the same time respect the peoples choice and grant their elected official full service of a term is evident in this
provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit;
conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an
interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by
voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such
involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-
1998 mayoral term. [Emphasis supplied]
Our intended meaning under this ruling is clear: it is severance from office, or to be exact, loss of title, that renders the three-term
limit rule inapplicable.
Ong v. Alegre
8
and Rivera v. COMELEC,
9
like Lonzanida, also involved the issue of whether there had been a completed term for
purposes of the three-term limit disqualification. These cases, however, presented an interesting twist, as their final judgments in
the electoral contest came after the term of the contested office had expired so that the elective officials in these cases were
never effectively unseated.
Despite the ruling that Ong was never entitled to the office (and thus was never validly elected), the Court concluded that there
was nevertheless an election and service for a full term in contemplation of the three-term rule based on the following premises:
(1) the final decision that the third-termer lost the election was without practical and legal use and value, having been
promulgated after the term of the contested office had expired; and (2) the official assumed and continuously exercised the
functions of the office from the start to the end of the term. The Court noted in Ong the absurdity and the deleterious effect of a
contrary view that the official (referring to the winner in the election protest) would, under the three-term rule, be considered to
have served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served the term pursuant
to a proclamation made in due course after an election. This factual variation led the Court to rule differently fromLonzanida.
In the same vein, the Court in Rivera rejected the theory that the official who finally lost the election contest was merely a
"caretaker of the office" or a mere "de facto officer." The Court obeserved that Section 8, Article X of the Constitution is violated
and its purpose defeated when an official fully served in the same position for three consecutive terms. Whether as "caretaker" or
"de facto" officer, he exercised the powers and enjoyed the perquisites of the office that enabled him "to stay on indefinitely."
Ong and Rivera are important rulings for purposes of the three-term limitation because of what they directly imply. Although the
election requisite was not actually present, the Court still gave full effect to the three-term limitation because of the constitutional
intent to strictly limit elective officials to service for three terms. By so ruling, the Court signalled how zealously it guards the
three-term limit rule. Effectively, these cases teach us to strictly interpret the term limitation rule in favor of limitation rather than
its exception.
Adormeo v. Commission on Elections
10
dealt with the effect of recall on the three-term limit disqualification. The case presented
the question of whether the disqualification applies if the official lost in the regular election for the supposed third term, but was
elected in a recall election covering that term. The Court upheld the COMELECs ruling that the official was not elected for three
(3) consecutive terms. The Court reasoned out that for nearly two years, the official was a private citizen; hence, the continuity of
his mayorship was disrupted by his defeat in the election for the third term.
Socrates v. Commission on Elections
11
also tackled recall vis--vis the three-term limit disqualification. Edward Hagedorn served
three full terms as mayor. As he was disqualified to run for a fourth term, he did not participate in the election that immediately
followed his third term. In this election, the petitioner Victorino Dennis M. Socrates was elected mayor. Less than 1 years after
Mayor Socrates assumed the functions of the office, recall proceedings were initiated against him, leading to the call for a recall
election. Hagedorn filed his certificate of candidacy for mayor in the recall election, but Socrates sought his disqualification on the
ground that he (Hagedorn) had fully served three terms prior to the recall election and was therefore disqualified to run because
of the three-term limit rule. We decided in Hagedorns favor, ruling that:
After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election
refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election,
like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is
no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary
interruption in the continuity of service.
When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether there
would be no further election after three terms, or whether there would be "no immediate reelection" after three terms.
x x x x
Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The
Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately
after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a
subsequent election but not an immediate reelection after the third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election
involving the same term of office. What the Constitution prohibits is a consecutive fourth term.
12

Latasa v. Commission on Elections
13
presented the novel question of whether a municipal mayor who had fully served for three
consecutive terms could run as city mayor in light of the intervening conversion of the municipality into a city. During the third
term, the municipality was converted into a city; the cityhood charter provided that the elective officials of the municipality shall, in
a holdover capacity, continue to exercise their powers and functions until elections were held for the new city officials. The Court
ruled that the conversion of the municipality into a city did not convert the office of the municipal mayor into a local government
post different from the office of the city mayor the territorial jurisdiction of the city was the same as that of the municipality; the
inhabitants were the same group of voters who elected the municipal mayor for 3 consecutive terms; and they were the same
inhabitants over whom the municipal mayor held power and authority as their chief executive for nine years. The Court said:
This Court reiterates that the framers of the Constitution specifically included an exception to the peoples freedom to choose
those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial
jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after
having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they
wrote this exception. Should he be allowed another three consecutive terms as mayor of the City of Digos, petitioner would then
be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of
eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it.
14

Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no three-term limit violation results if a
rest period or break in the service between terms or tenure in a given elective post intervened. In Lonzanida, the petitioner was a
private citizen with no title to any elective office for a few months before the next mayoral elections. Similarly,
in Adormeo and Socrates, the private respondents lived as private citizens for two years and fifteen months, respectively. Thus,
these cases establish that the law contemplates a complete break from office during which the local elective official steps down
and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit.
Seemingly differing from these results is the case of Montebon v. Commission on Elections,
15
where the highest-ranking
municipal councilor succeeded to the position of vice-mayor by operation of law. The question posed when he subsequently ran
for councilor was whether his assumption as vice-mayor was an interruption of his term as councilor that would place him outside
the operation of the three-term limit rule. We ruled that an interruption had intervened so that he could again run as councilor.
This result seemingly deviates from the results in the cases heretofore discussed since the elective official continued to hold
public office and did not become a private citizen during the interim. The common thread that identifies Montebon with the rest,
however, is that the elective official vacated the office of councilor and assumed the higher post of vice-mayor by operation of
law. Thus, for a time he ceased to be councilor an interruption that effectively placed him outside the ambit of the three-term
limit rule.
c. Conclusion Based on Law and Jurisprudence
From all the above, we conclude that the "interruption" of a term exempting an elective official from the three-term limit rule is one
that involves no less than the involuntary loss of title to office. The elective official must have involuntarily left his office for a
length of time, however short, for an effective interruption to occur. This has to be the case if the thrust of Section 8, Article X and
its strict intent are to be faithfully served, i.e., to limit an elective officials continuous stay in office to no more than three
consecutive terms, using "voluntary renunciation" as an example and standard of what does not constitute an interruption.
Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective interruption of service within a
term, as we held in Montebon. On the other hand, temporary inability or disqualification to exercise the functions of an elective
post, even if involuntary, should not be considered an effective interruption of a term because it does not involve the loss of title
to office or at least an effective break from holding office; the office holder, while retaining title, is simply barred from exercising
the functions of his office for a reason provided by law.
An interruption occurs when the term is broken because the office holder lost the right to hold on to his office, and cannot be
equated with the failure to render service. The latter occurs during an office holders term when he retains title to the office but
cannot exercise his functions for reasons established by law. Of course, the term "failure to serve" cannot be used once the right
to office is lost; without the right to hold office or to serve, then no service can be rendered so that none is really lost.
To put it differently although at the risk of repetition, Section 8, Article X both by structure and substance fixes an elective
officials term of office and limits his stay in office to three consecutive terms as an inflexible rule that is stressed, no less, by
citing voluntary renunciation as an example of a circumvention. The provision should be read in the context of interruption of
term, not in the context of interrupting the full continuity of the exercise of the powers of the elective position. The "voluntary
renunciation" it speaks of refers only to the elective officials voluntary relinquishment of office and loss of title to this office. It
does not speak of the temporary "cessation of the exercise of power or authority" that may occur for various reasons, with
preventive suspension being only one of them. To quote Latasa v. Comelec:
16

Indeed, [T]he law contemplates a rest period during which the local elective official steps down from office and ceases to
exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. [Emphasis
supplied].
Preventive Suspension and the Three-Term Limit Rule
a. Nature of Preventive Suspension
Preventive suspension whether under the Local Government Code,
17
the Anti-Graft and Corrupt Practices Act,
18
or the
Ombudsman Act
19
is an interim remedial measure to address the situation of an official who have been charged
administratively or criminally, where the evidence preliminarily indicates the likelihood of or potential for eventual guilt or liability.
Preventive suspension is imposed under the Local Government Code "when the evidence of guilt is strong and given the gravity
of the offense, there is a possibility that the continuance in office of the respondent could influence the witnesses or pose a threat
to the safety and integrity of the records and other evidence." Under the Anti-Graft and Corrupt Practices Act, it is imposed after a
valid information (that requires a finding of probable cause) has been filed in court, while under the Ombudsman Act, it is
imposed when, in the judgment of the Ombudsman, the evidence of guilt is strong; and (a) the charge involves dishonesty,
oppression or grave misconduct or neglect in the performance of duty; or (b) the charges would warrant removal from the
service; or (c) the respondents continued stay in office may prejudice the case filed against him.
Notably in all cases of preventive suspension, the suspended official is barred from performing the functions of his office and
does not receive salary in the meanwhile, but does not vacate and lose title to his office; loss of office is a consequence that only
results upon an eventual finding of guilt or liability.
Preventive suspension is a remedial measure that operates under closely-controlled conditions and gives a premium to the
protection of the service rather than to the interests of the individual office holder. Even then, protection of the service goes only
as far as a temporary prohibition on the exercise of the functions of the officials office; the official is reinstated to the exercise of
his position as soon as the preventive suspension is lifted. Thus, while a temporary incapacity in the exercise of power results, no
position is vacated when a public official is preventively suspended. This was what exactly happened to Asilo.
That the imposition of preventive suspension can be abused is a reality that is true in the exercise of all powers and prerogative
under the Constitution and the laws. The imposition of preventive suspension, however, is not an unlimited power; there are
limitations built into the laws
20
themselves that the courts can enforce when these limitations are transgressed, particularly when
grave abuse of discretion is present. In light of this well-defined parameters in the imposition of preventive suspension, we should
not view preventive suspension from the extreme situation that it can totally deprive an elective office holder of the prerogative
to serve and is thus an effective interruption of an election officials term.
Term limitation and preventive suspension are two vastly different aspects of an elective officials service in office and they do not
overlap. As already mentioned above, preventive suspension involves protection of the service and of the people being served,
and prevents the office holder from temporarily exercising the power of his office. Term limitation, on the other hand, is triggered
after an elective official has served his three terms in office without any break. Its companion concept interruption of a term
on the other hand, requires loss of title to office. If preventive suspension and term limitation or interruption have any
commonality at all, this common point may be with respect to the discontinuity of service that may occur in both. But even on this
point, they merely run parallel to each other and never intersect; preventive suspension, by its nature, is a temporary incapacity
to render serviceduring an unbroken term; in the context of term limitation, interruption of service occurs after there has been
abreak in the term.
b. Preventive Suspension and the Intent of the Three-Term Limit Rule
Strict adherence to the intent of the three-term limit rule demands that preventive suspension should not be considered an
interruption that allows an elective officials stay in office beyond three terms. A preventive suspension cannot simply be a term
interruption because the suspended official continues to stay in office although he is barred from exercising the functions and
prerogatives of the office within the suspension period.The best indicator of the suspended officials continuity in office is the
absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists.
To allow a preventively suspended elective official to run for a fourth and prohibited term is to close our eyes to this reality and to
allow a constitutional violation through sophistry by equating the temporary inability to discharge the functions of office with the
interruption of term that the constitutional provision contemplates. To be sure, many reasons exist, voluntary or involuntary
some of them personal and some of them by operation of law that may temporarily prevent an elective office holder from
exercising the functions of his office in the way that preventive suspension does. A serious extended illness, inability through
force majeure, or the enforcement of a suspension as a penalty, to cite some involuntary examples, may prevent an office holder
from exercising the functions of his office for a time without forfeiting title to office. Preventive suspension is no different because
it disrupts actual delivery of service for a time within a term. Adopting such interruption of actual service as the standard to
determine effective interruption of term under the three-term rule raises at least the possibility of confusion in implementing this
rule, given the many modes and occasions when actual service may be interrupted in the course of serving a term of office. The
standard may reduce the enforcement of the three-term limit rule to a case-to-case and possibly see-sawing determination of
what an effective interruption is.
c. Preventive Suspension and Voluntary Renunciation
Preventive suspension, because it is imposed by operation of law, does not involve a voluntary act on the part of the suspended
official, except in the indirect sense that he may have voluntarily committed the act that became the basis of the charge against
him. From this perspective, preventive suspension does not have the element of voluntariness that voluntary renunciation
embodies. Neither does it contain the element of renunciation or loss of title to office as it merely involves the temporary
incapacity to perform the service that an elective office demands. Thus viewed, preventive suspension is by its very nature
the exact opposite of voluntary renunciation; it is involuntary and temporary, and involves only the actual delivery of service, not
the title to the office. The easy conclusion therefore is that they are, by nature, different and non-comparable.
But beyond the obvious comparison of their respective natures is the more important consideration of how they affect the three-
term limit rule.
Voluntary renunciation, while involving loss of office and the total incapacity to render service, is disallowed by the Constitution as
an effective interruption of a term. It is therefore not allowed as a mode of circumventing the three-term limit rule.
Preventive suspension, by its nature, does not involve an effective interruption of a term and should therefore not be a reason to
avoid the three-term limitation. It can pose as a threat, however, if we shall disregard its nature and consider it an effective
interruption of a term. Let it be noted that a preventive suspension is easier to undertake than voluntary renunciation, as it does
not require relinquishment or loss of office even for the briefest time. It merely requires an easily fabricated administrative charge
that can be dismissed soon after a preventive suspension has been imposed. In this sense, recognizing preventive suspension
as an effective interruption of a term can serve as a circumvention more potent than the voluntary renunciation that the
Constitution expressly disallows as an interruption.
Conclusion
To recapitulate, Asilos 2004-2007 term was not interrupted by the Sandiganbayan-imposed preventive suspension in 2005, as
preventive suspension does not interrupt an elective officials term. Thus, the COMELEC refused to apply the legal command of
Section 8, Article X of the Constitution when it granted due course to Asilos certificate of candidacy for a prohibited fourth term.
By so refusing, the COMELEC effectively committed grave abuse of discretion amounting to lack or excess of jurisdiction; its
action was a refusal to perform a positive duty required by no less than the Constitution and was one undertaken outside the
contemplation of law.
21

WHEREFORE, premises considered, we GRANT the petition and accordingly NULLIFY the assailed COMELEC rulings. The
private respondent Wilfredo F. Asilo is declared DISQUALIFIED to run, and perforce to serve, as Councilor of Lucena City for a
prohibited fourth term. Costs against private respondent Asilo.
SO ORDERED.
ARTURO D. BRION
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO
Acting Chief Justice
CONCHITA CARPIO MORALES
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
RENATO C. CORONA
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
ROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
1
Filed under Rule 64, in relation with Rule 65 of the Rules of Court.
2
329 Phil. 409 (1996).
3
G.R. No. L-30057, January 31, 1984, 127 SCRA 231, 240.
4
401 Phil. 77, 88 (2000).
5
Websters Third New International Dictionary (1993), p. 1922.
6
II RECORD, Constitutional Commission 591 (August 1, 1986).
7
G.R. No. 135150, July 28, 1999, 311 SCRA 602.
8
G.R. No. 163295, January 23, 2006, 479 SCRA 473.
9
G.R. No. 167591, May 9, 2007, 523 SCRA 41.
10
426 Phil. 472 (2002).
11
440 Phil. 106 (2002).
12
Id. at 125-127.
13
G.R. No. 154829, December 10, 2003, 417 SCRA 601.
14
Id. at 312-313.
15
G.R. No. 180444, April 9, 2008, 551 SCRA 50.
16
Supra note 12.
17
RA 7160, Sections 63 and 64.
18
RA 3019, Section 13.
19
RA 6770, Sections 24 and 25.
20
See: Sec. 24, R.A. No. 6770; Sec. 63, R.A. No. 7160; Sec. 13, R.A. No. 3019.
21
Grave abuse of discretion defies exact definition, but it generally refers to "capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction the abuse of discretion must be patent and gross as to amount
to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation
of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility;
Quintos v. Commission on Elections, 440 Phil. 1045, 1064 (2002), citingSahali v. Commission on Elections, 381
Phil. 505 (2002).

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CONCURRING OPINION
LEONARDO-DE CASTRO, J .:
I concur with the well-written ponencia of Honorable Justice Arturo D. Brion which holds that "preventive suspension" is not
equivalent to an "involuntary renunciation" of a public office for the purpose of applying Section 8, Article X of the Constitution.
However, I wish to further elucidate my concurrence to the views of Justice Brion and give my reflections on the implications of
the outcome of the case for which an elective public official is suspended pendente lite, which I believe is relevant to the issue on
hand.
The aforementioned provision of Article X reads as follows:
Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three
years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.
The minority view considers "preventive suspension" as an "involuntary renunciation" of an elective public officials term of office,
such that even if he was elected thrice to serve for three (3) consecutive terms, he may still run for a fourth term because his
service was interrupted by his preventive suspension. However, according to this view, his continuation in office for such fourth
term will depend on his exoneration in the case where he was preventively suspended. In other words, the suspended public
official will be deemed disqualified to run for a fourth term only upon his conviction which will retroact to the date when he filed his
certificate of candidacy for his fourth term. This means that even if he runs and wins a fourth term and thereafter is convicted in
the case in which he was previously preventively suspended, he will be deemed to have renounced voluntarily his fourth term.
I concur with Justice Brions view that Borja v. Commission on Elections is not the controlling precedent on preventive
suspension because this matter was not squarely raised in the said case and that the consideration of preventive suspension
from the perspective of voluntary or involuntary renunciation is inappropriate.
Nonetheless, I would like to venture into the effect of the acquittal or conviction of the preventively suspended public officer to
further support my position that "preventive suspension" does not partake of the nature of "involuntary renunciation" of an office.
The language of Section 8, Article X of the Constitution implies that an interruption in the continuity of the service of elective
officials is a valid ground for him to run for a fourth consecutive term. The same provision of the Constitution is explicit and
categorical in its declaration that "voluntary renunciation" of elective position for any length of time is not to be considered as an
interruption in the continuity of service of an elective official. Conversely, "involuntary renunciation of office" can be deemed an
interruption in the continuity of the service of the elective official which would render him eligible to run for a fourth term.
In my opinion, preventive suspension cannot be considered as an "involuntary renunciation" of an elective position. One who has
been elected to a public office for three (3) consecutive terms is prohibited to run for the same position for a fourth term,
notwithstanding his preventive suspension during any of his first three (3) consecutive terms. Since preventive suspension is not
akin to involuntary renunciation, the rule should hold true irrespective of his acquittal or conviction in the case in which an elective
official was preventively suspended.
There is an inherent difference between "renunciation" and "preventive suspension" even if the former is involuntary. The former
connotes an act of abandonment or giving up of a position by a public officer which would result in the termination of his service,
whereas the latter means that a public officer is prevented by legal compulsion, not by his own volition, from discharging the
functions and duties of his office, but without being removed or separated from his office. The term of office of a preventively
suspended public officer subsists because preventive suspension does not create a vacancy in his office. As Justice Brion puts it,
he does not become a private citizen while he is under preventive suspension. The continuity of the term of the suspended
official during the period of his preventive suspension, whether rendered administrative or court proceedings, is recognized by
law and jurisprudence, such that a public officer who is acquitted of the charges against him, is entitled to receive the salaries
and benefits which he failed to receive during the period of his preventive suspension (Section 64, Local Government Code of
1991, Republic Act (R.A.) No. 7160; Section 13, R.A. 3019, as amended; Tan v. Department of Public Works and Highways,
G.R. No. 143289, Nov. 11, 2004, 442 SCRA 192, 202).
If the suspended public officer is convicted of the charges, still there is no interruption of service within the three (3) consecutive
terms, within the meaning of the Constitution which will warrant his running for a fourth term. Here, it is not the preventive
suspension but his having committed a wrongdoing, which gave ground for his removal from office or for forfeiture of the
remainder of his term which can be considered as voluntary renunciation of his office. The commission of a crime or an
administrative infraction which is a ground for the removal from office of a public officer is akin to his "voluntary renunciation" of
his office. He may be deemed, by his willful wrongdoing, which betrayed public trust, to have thereby voluntarily renounced his
office under the provision of Section 8, Article X of the Constitution.
I beg to disagree with the proposition that the suspended public official should be allowed to run for a fourth time and if convicted,
he should be considered to have voluntarily renounced his fourth term. My reason is that the crime was committed not during his
fourth term but during his previous term. The renunciation should refer to the term during which the crime was committed. The
commission of the crime is tantamount to his voluntary renunciation of the term he was then serving, and not any future term.
Besides, the electorate should not be placed in an uncertain situation wherein they will be allowed to vote for a fourth term a
candidate who may later on be convicted and removed from office by a judgment in a case where he was previously preventively
suspended.
In view of the foregoing, I reiterate my concurrence with the majority opinion that preventive suspension, regardless of the
outcome of the case in which an elective public officer has been preventively suspended, should not be considered as an
interruption of the service of the said public officer that would qualify him to run for a fourth term.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice

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SEPARATE CONCURRING OPINION
ABAD, J .:
I join the majority opinion and add a few thoughts of my own.
The Facts
Respondent Wilfredo F. Asilo won three consecutive elections as councilor of Lucena City, specifically from 1998 to 2001, from
2001 to 2004, and from 2004 to 2007. During his last term or on October 3, 2005, the Sandiganbayan ordered him placed under
preventive suspension for ninety days in connection with a crime of which he had been charged. After about thirty-seven days,
however, or on November 9, 2005, this Court lifted the order of suspension and allowed Asilo to resume the duties of his office.
Believing that his brief preventive suspension interrupted his full service in office and allowed him to seek a fourth term as
councilor because of it, Asilo filed a certificate of candidacy for the same office in the 2007 elections. When this was questioned,
both the Second Division of the Commission on Elections and its En Banc ruled that the three-term limit did not apply to Asilos
case since the Sandiganbayans order of preventive suspension did not allow him to complete the third term for which he was
elected in 2004.
The Issue
The issue in this case is whether or not respondent Asilos preventive suspension during his third term as councilor, which
shortened the length of his normal service by thirty-seven days, allowed him to run for a fourth consecutive term for the same
office.
Discussion
The issue in this case revolves around Section 8 of Article X of the 1987 Constitution:
The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and
no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of his service for the full term for which he was elected.
The first part states that no local official shall serve for more than three consecutive terms.
The second, on the other hand, states that voluntary renunciation of office shall not be considered an interruption in the continuity
of his service for the full term for which he was elected.
1

That the first part is a prohibitory rule is not in question. This is quite clear. It says that no local official can serve for more than
three terms. Traditionally, politicians find ways of entrenching themselves in their offices and the consensus is that this practice is
not ideal for good government. Indeed, the Constitution expresses through the three-term limit rule a determination to open
public office to others and bring fresh ideas and energies into government as a matter of policy. The mandate of this Court in this
case is to enforce such constitutionally established prohibition.
Actually, what creates the mischief is the statement in the second part of Section 8 that "voluntary renunciation" of office shall not
be considered an interruption in the continuity of his service for the full term for which the local official was elected. The
dissenting opinion infers from this that "any service short of full service of three consecutive terms, save for voluntary
renunciation of office, does not bar an elective local official from running again for the same local government post." In other
words, elected politicians whose services are cut in the course of any term by "involuntary renunciation" are eligible for a fourth
term.
Relying on its above inference, the dissenting opinion claims that preventive suspension is, by default, an "involuntary
renunciation" of an elective officials term of office since he does not choose to be preventively suspended. Preventive
suspension cuts into the full term of the elected official and gives him justification for seeking a fourth term.
But, there is in reality no such thing as "involuntary" renunciation. Renunciation is essentially "formal or voluntary." It is the act,
says Webster, "of renouncing; a giving up formally or voluntarily, often at a sacrifice, of a right, claim, title, etc."
2
If the dissenting
opinion insists on using the term "involuntary renunciation," it could only mean "coerced" renunciation, i.e., renunciation forced on
the elected official. With this meaning, any politician can simply arrange for someone to make him sign a resignation paper at gun
point. This will justify his running for a fourth term. But, surely, the law cannot be mocked in this way.
Parenthetically, there can be other causes for "involuntary renunciation," interruption of service that is not of the elected officials
making. For instance, through the fault of a truck driver, the elected officials car could fall into a ditch and put the official in the
hospital for a week, cutting his service in office against his will. Temporary illness can also interrupt service. Natural calamities
like floods and earthquakes could produce the same result. Since these are "involuntary renunciations" or interruptions in the
elective officials service, it seems that he would, under the dissenting opinions theory, be exempt from the three-year rule. But
surely, Section 8 could not have intended this for it would overwhelm the constitutional ban against election for more than three
consecutive terms.
Actually, though, "voluntary renunciation," the term that the law uses simply means resignation from or abandonment of office.
The elected official who voluntarily resigns or abandons his duties freely renounces the powers, rights, and privileges of his
position. The opposite of "voluntary renunciation" in this context would be "removal from office," a sanction imposed by some
duly authorized person or body, not an initiative of or a choice freely made by the elected official. Should "removal from office" be
the test, therefore, for determining interruption of service that will warrant an exception to the three-term limit rule?
Apparently not, since an elected official could be removed from office through recall (a judgment by the electorates that he is unfit
to continue serving in office),
3
criminal conviction by final judgment,
4
and administrative dismissal.
5
Surely, the Constitution could
not have intended to reward those removed in this way with the opportunity to skip the three-year bar.
The only interruption in the continuity of service of an elected official that does not amount to removal is termination of his service
by operation of law. This is exemplified in the case of Montebon v. COMELEC,
6
where this Court deemed the highest-ranking
councilors third term as such "involuntarily" interrupted when he succeeded as vice mayor by operation of law upon the latters
retirement. This Court considered the ranking councilor eligible to run again as councilor for the succeeding term.
But Montebon cannot be compared with Asilos case since Montebons term as councilor ended by operation of law when the
vice mayor retired and Montebon had to step into his shoes.
7
Asilos term, on the other hand, did not end when the
Sandiganbayan placed him under preventive suspension. He did not vacate his office. It merely enjoined him in the meantime
from performing his duties and exercising his powers. His term ran the full course; it was not cut.
It might be correct to say that the will of the electorates is for Asilo to serve the full term of his office. But, given the presumption
that the electorates knew of the law governing preventive suspension when they elected him, it must be assumed that they
elected him subject to the condition that he can be preventively suspended if the occasion warrants. Such suspension cannot,
therefore, be regarded as a desecration of the peoples will.
It does not matter that the preventive suspension imposed on the elected official may later on prove unwarranted. The law
provides the proper remedy for such error. Here, the Supreme Court supplied that remedy. It set aside the preventive suspension
imposed on Asilo by the Sandiganbayan. There is, on the other hand, no law that allows an elected official to tack to his term of
office the period of service he had lost by reason of preventive suspension just so he can make up for the loss. The dissenting
opinions position would create a rule that will allow Asilo, who lost thirty-seven days of service because of that suspension, a
right to be re-elected to a fourth consecutive term of one thousand ninety-five days (365 days x 3).
In Borja, Jr. v. COMELEC,
8
this Court cited a hypothetical situation where B is elected Mayor and, during his first term, he is twice
suspended for misconduct for a total of one year. If he is twice reelected after that, can he run for one more term in the next
election? This Court answered in the affirmative, stating as reason that B successfully served only two full terms.
9

But such interpretation of the law wounds its very spirit for, in effect, it would reward the elected official for his misconduct. Fr.
Joaquin G. Bernas, S.J., a recognized constitutionalist, is also not swayed by it. He points out that when an elected official is
suspended, he shortens neither his term nor his tenure. He is still seen as the rightful holder of the office and, therefore, must be
considered as having served a full term during the period of suspension.
10

ACCORDINGLY, I submit that preventive suspension did not interrupt Asilos term of office from 2004-2007 and it cannot be
considered an exception to the three-term limit rule. Thus, Asilo is disqualified from running in the 2007 elections for violation of
that rule pursuant to Section 8, Article X of the Constitution. I vote to GRANT the petition.
ROBERTO A. ABAD
Associate Justice

Footnotes
1
Socrates v. Commission on Elections, G.R. No. 154512, November 12, 2002, 391 SCRA 457, 467.
2
Websters New World College Dictionary, Third Edition, p. 1137.
3
R.A. No. 7160, Section 69. By Whom Exercised. - The power of recall for loss of confidence shall be exercised
by the registered voters of a local government unit to which the local elective official subject to such recall
belongs.
4
There are cases where an official is punished with the penalty of perpetual disqualification from public office
and, thus, the three-term rule ceases to be an issue. See R.A. No. 3019, Section 9 (a).
5
Under Section 40 (b) of R.A. No. 7160, those removed from office as a result of an administrative case are
disqualified from running for any elective local position. In this case, the three-term rule also ceases to be an
issue.
6
G.R. No. 180444, April 9, 2008, 551 SCRA 50.
7
R.A. No. 7160, Section 44. Permanent Vacancies in the Offices of the Governor, Vice Governor, Mayor, and
Vice Mayor. (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice governor or vice
mayor concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the
governor, vice governor, mayor or vice mayor, the highest ranking sanggunian member or, in case of his
permanent inability, the second highest ranking sanggunian member, shall become the governor, vice governor,
mayor or vice mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by
the other sanggunian members according to their ranking as defined herein. x x x.
8
G.R. No. 133495, September 3, 1998, 295 SCRA 157.
9
Id. at 169.
10
Bernas S.J., Joaquin. The 1987 Constitution of the Republic of the Philippines: A Commentary, 2003 Ed., pp.
1092-1093.

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EN BANC
[G.R. No. 133944. October 28, 1999]
MARCITA MAMBA PEREZ, petitioner, vs. COMMISSION ON
ELECTIONS and RODOLFO E. AGUINALDO, respondents.
D E C I S I O N
MENDOZA, J .:
This is a petition for certiorari to annul the resolution, dated May 10, 1998, of the First
Division of the Commission on Elections, dismissing petitioner Marcita Mamba Perezs petition
for the disqualification of private respondent Rodolfo E. Aguinaldo as a candidate for
Representative of the Third District of Cagayan in the May 11, 1998 elections, as well as the
resolution of the COMELEC en banc, dated June 11, 1998, denying petitioners motion for
reconsideration.
The facts are not in dispute.
On March 26, 1998, private respondent filed his certificate of candidacy for Representative
of the Third District of Cagayan in the May 11, 1998 elections. Four days later, on March 30,
1998, petitioner, as a voter and citizen, filed in the COMELEC a petition for the disqualification
of private respondent as a candidate on the ground that he had not been a resident of the district
for at least one (1) year immediately before the day of the elections as required by Art. VI, 6 of
the Constitution.
In support of her claim, petitioner presented private respondents certificates of
candidacy
[1]
for governor of Cagayan in the 1988, 1992, and 1995 elections; his voters
affidavit
[2]
which he used in the 1987, 1988, 1992, 1995, and 1997 elections; and his voter
registration record dated June 22, 1997,
[3]
in all of which it is stated that he is a resident of
Barangay Calaoagan Dackel, Municipality of Gattaran, which is outside the Third District of
Cagayan. Petitioner alleged that private respondent filed an application
[4]
for the transfer of his
registration as voter from Gattaran, Cagayan (First District) to Tuguegarao, Cagayan (Third
District) only on December 17, 1997 and that said application was approved only on January 7,
1998. Petitioner prayed that in the event the case was not finally decided before the elections
and private respondent obtained the highest number of votes, the latters proclamation be
suspended.
In his answer, private respondent claimed that while he had been a resident of Gattaran,
Cagayan in 1990, he transferred his residence to Tuguegarao, Cagayan by renting an apartment
at No. 13-E Magallanes St., Tuguegarao, Cagayan, in order to hide his mistress from public view
because, at that time, his marriage to his former wife was still subsisting. In support of his claim,
he presented the affidavit
[5]
of the owner of the apartment, Engineer Alfredo Ablaza, in which it
is stated that private respondent had been his lessee since July 1990. In addition, private
respondent presented the contract of lease
[6]
of another residential apartment at Kamias Street,
Tanza, Tuguegarao, Cagayan, for the period July 1, 1995 to June 30, 1996, between him, as
lessee, and Tomas T. Decena, as lessor; his marriage license dated January 7, 1997;
[7]
the
marriage certificate between him and his present wife, Lerma Dumaguit, dated January 18,
1998;
[8]
the birth certificate
[9]
of their daughter, Geniah Laureen D. Aguinaldo; and various
letters,
[10]
all of which show that he had been a resident of Tuguegarao, Cagayan for at least one
(1) year before the May 11, 1998 elections.
On May 10, 1998, the First Division of the COMELEC, in a unanimous
resolution,
[11]
dismissed the petition for disqualification, finding private respondent Aguinaldo
qualified to run as representative for the Third District of Cagayan.
On May 11, 1998, private respondent was elected Representative of the Third District of
Cagayan, with 65,058 votes over his rival Manuel N. Mambas 58,507 votes.
[12]
Accordingly, on
May 16, 1998, he was proclaimed elected and, on May 17, 1998, he was sworn in office.
On May 22, 1998, petitioner filed a motion for reconsideration reiterating her allegation that
private respondent lacked the requisite residency in the Third District of Cagayan and arguing
that the proclamation of private respondent was not a legal impediment to the continuation of the
hearing on her motion in view of R.A. No. 6646, 6. Her motion was, however, denied by the
COMELEC en banc in its resolution of June 11, 1998. Hence, this petition.
Petitioner contends that the COMELEC committed grave abuse of discretion in holding that
private respondent had been a resident of Tuguegarao, Cagayan since July 1990 when he rented
an apartment there in order to hide his mistress. Petitioner contends that transfer of residence to
the place where private respondent is keeping his mistress cannot amount to a change of
domicile because ones domicile is the place where one and ones legitimate family resides. She
also argues that private respondent could not have changed his residence to Tuguegarao in 1990
considering that his certificates of candidacy for governor of Cagayan in the 1988, 1992, and
1995 elections, as well as his voter registration records, the latest of which was made on June 22,
1997, indicate that he is a resident of Gattaran, which is in the First District of
Cagayan. Petitioner avers that in the absence of clear and positive proof, ones domicile of
origin should be deemed to continue and that to successfully effect a change of domicile, one
must prove an actual change of domicile, a bonafide intention of abandoning the former place of
residence and of establishing a new one, and unequivocal acts which correspond with the
intention.
On the other hand, private respondent asks that the instant petition be dismissed. He argues
that after his proclamation on May 16, 1998 and his assumption of office on June 30, 1998, the
COMELEC lost jurisdiction to pass upon his qualifications for the office of Representative. He
argues further that this case should have been filed with the House of Representatives Electoral
Tribunal which has jurisdiction over the subject matter of the case.
In a supplemental pleading,
[13]
petitioner replies that the COMELEC retained jurisdiction
over the case because she filed the petition for disqualification on March 30, 1998, before the
elections on May 11, 1998, and that pursuant to R.A. No. 6646, 6, the COMELEC could
continue the proceedings for the determination of the disqualification of private respondent.
The threshold issue, therefore, is whether the Court has jurisdiction to entertain the instant
petition for certiorari and eventually pass upon private respondents eligibility for the office of
Representative of the Third District of Cagayan. Petitioner, in sustaining the affirmative side of
the question, invokes the following provision of R.A. No. 6646:
Sec. 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 (COMELEC) 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.
As already stated, the petition for disqualification against private respondent was decided by
the First Division of the COMELEC on May 10, 1998. The following day, May 11, 1998, the
elections were held. Notwithstanding the fact that private respondent had already been
proclaimed on May 16, 1998 and had taken his oath of office on May 17, 1998, petitioner still
filed a motion for reconsideration on May 22, 1998, which the COMELEC en banc denied on
June 11, 1998. Clearly, this could not be done. Sec. 6 of R.A. No. 6646 authorizes the
continuation of proceedings for disqualification even after the elections if the respondent has not
been proclaimed. The COMELEC en banc had no jurisdiction to entertain the motion because
the proclamation of private respondent barred further consideration of petitioners action. In the
same vein, considering that at the time of the filing of this petition on June 16, 1998, private
respondent was already a member of the House of Representatives, this Court has no jurisdiction
over the same. Pursuant to Art. VI, 17 of the Constitution, the House of Representatives
Electoral Tribunal has the exclusive original jurisdiction over the petition for the declaration of
private respondents ineligibility. As this Court held in Lazatin v. House of Representatives
Electoral Tribunal:
[14]

The use of the word sole emphasizes the exclusive character of the jurisdiction
conferred. The exercise of the power by the Electoral Commission under the 1935
Constitution has been described as intended to be as complete and unimpaired as if it
had remained originally in the legislature. Earlier, this grant of power to the
legislature was characterized by Justice Malcolm as full, clear and complete. Under
the amended 1935 Constitution, the power was unqualifiedly reposed upon the
Electoral Tribunal and it remained as full, clear and complete as that previously
granted the legislature and the Electoral Commission. The same may be said with
regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution.
Petitioners remedies should have been (1) to reiterate her prayer in the petition for
disqualification, and move for the issuance of an order by the COMELEC suspending the
proclamation of private respondent pending the hearing of the said petition and, in the event the
motion was denied before the proclamation of private respondent, file a petition for certiorari in
this Court with a prayer for a restraining order to enjoin the proclamation of private respondent;
or (2) to file a petition for quo warranto in the House of Representatives Electoral Tribunal
within ten (10) days after the proclamation of private respondent as Representative-elect on May
16, 1998.
[15]
Obviously, neither of these remedies can be availed of now.
In any event, even assuming that the Court has jurisdiction to resolve the instant petition
for certiorari, we find no merit in petitioners allegation that private respondent is ineligible for
the office of Representative of the Third District of Cagayan.
Art. VI, 6 of the Constitution states:
No person shall be a Member of the House of Representatives unless he is a natural-
born citizen of the Philippines and, on the day of the election, is at least twenty-five
years of age, able to read and write, and, except the party-list representatives, a
registered voter in the district in which he shall be elected, and a resident thereof for a
period of not less than one year immediately preceding the day of the election.
The meaning and purpose of the residency requirement were explained recently in our
decision in Aquino v. COMELEC,
[16]
as follows:
. . . [T]he 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, i.e., his domicile, is that to which the Constitution refers when it
speaks of residence for the purposes of election law. The manifest purpose of this
deviation from the usual conceptions of residency in law as explained in Gallego vs.
Vera is to exclude strangers or newcomers unfamiliar with the conditions and needs
of the community from taking advantage of favorable circumstances existing in that
community for electoral gain. While there is nothing wrong with the practice of
establishing residence in a given area for meeting election law requirements, this
nonetheless defeats the essence of representation, which is to place through the assent
of voters those most cognizant and sensitive to the needs of a particular district, if a
candidate falls short of the period of residency mandated by law for him to
qualify. That purpose could be obviously best met by individuals who have either had
actual residence in the area for a given period or who have been domiciled in the same
area either by origin or by choice.
In the case at bar, the COMELEC found that private respondent changed his residence from
Gattaran to Tuguegarao, the capital of Cagayan, in July 1990 on the basis of the following: (1)
the affidavit of Engineer Alfredo Ablaza, the owner of the residential apartment at 13-E
Magallanes St., Tuguegarao, Cagayan, where private respondent had lived in 1990; (2) the
contract of lease between private respondent, as lessee, and Tomas T. Decena, as lessor, of a
residential apartment at Kamias St., Tanza, Tuguegarao, Cagayan, for the period July 1, 1995 to
June 30, 1996; (3) the marriage certificate, dated January 18, 1998, between private respondent
and Lerma Dumaguit; (4) the certificate of live birth of private respondents second daughter;
and (5) various letters addressed to private respondent and his family, which all show that private
respondent was a resident of Tuguegarao, Cagayan for at least one (1) year immediately
preceding the elections on May 11, 1998.
There is thus substantial evidence supporting the finding that private respondent had been a
resident of the Third District of Cagayan and there is nothing in the record to detract from the
merit of this factual finding.
Petitioner contends that the fact that private respondent was a resident of Gattaran, at least
until June 22, 1997, is shown by the following documentary evidence in the record, to wit: (1)
his certificates of candidacy for governor of Cagayan in the 1988, 1992 and 1995 elections; (2)
his voters registration records, the latest of which was made on June 22, 1997; and (3) the fact
that private respondent voted in Gattaran, Cagayan, in the elections of 1987, 1988, 1992 and
1995.
The contention is without merit. The fact that a person is registered as a voter in one district
is not proof that he is not domiciled in another district. Thus, in Faypon v. Quirino,
[17]
this Court
held that the registration of a voter in a place other than his residence of origin is not sufficient to
consider him to have abandoned or lost his residence.
Nor is it of much importance that in his certificates of candidacy for provincial governor in
the elections of 1988, 1992, and 1995, private respondent stated that he was a resident of
Gattaran. Under the law,
[18]
what is required for the election of governor is residency in the
province, not in any district or municipality, one year before the election.
Moreover, as this Court said in Romualdez-Marcos v. COMELEC:
[19]

It is the fact of residence, not a statement in a certificate of candidacy, which ought to
be decisive in determining whether or not an individual has satisfied the constitutions
residency qualification requirement. The said statement becomes material only when
there is or appears to be a deliberate attempt to mislead, misinform, or hide a fact
which would otherwise render a candidate ineligible.
In this case, although private respondent declared in his certificates of candidacy prior to the
May 11, 1998 elections that he was a resident of Gattaran, Cagayan, the fact is that he was
actually a resident of the Third District not just for one (1) year prior to the May 11, 1998
elections but for more than seven (7) years since July 1990. His claim that he had been a
resident of Tuguegarao since July 1990 is credible considering that he was governor from 1988
to 1998 and, therefore, it would be convenient for him to maintain his residence in Tuguegarao,
which is the capital of the province of Cagayan.
As always, the polestar of adjudication in cases of this nature is Gallego v. Vera,
[20]
in which
this Court held: [W]hen the evidence on the alleged lack of residence qualification is weak or
inconclusive and it clearly appears, as in the instant case, that the purpose of the law would not
be thwarted by upholding the right to the office, the will of the electorate should be respected.
In this case, considering the purpose of the residency requirement, i.e., to ensure that the person
elected is familiar with the needs and problems of his constituency, there can be no doubt that
private respondent is qualified, having been governor of the entire province of Cagayan for ten
years immediately before his election as Representative of that provinces Third District.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago, and De
Leon, Jr., JJ., concur.
Vitug, and Panganiban, JJ., in the result.
Pardo, J., no part.
Bellosillo, Kapunan, and Quisumbing, JJ., on official leave.



[1]

Rollo, pp. 39-42; Annexes A, B, and C of the Petition for Disqualification, Annex D, Petition.
[2]

Id., p. 43; Annex D, id.
[3]

Id., p. 44; Annex E, id.
[4]

Id., p. 88; Annex F, id.
[5]

Id., p. 66; Annex 3, Answer to Petition for Disqualification.
[6]

Id., pp. 67-69; Annex 4, id.
[7]

Id., p. 73; Annex 6, id.
[8]

Id., p. 74; Annex 7, id.
[9]

Id., p. 75; Annex 8, id.
[10]

Id., pp. 76-84; Annexes 9 to 11, id.
[11]

Per Commissioner Teresita Dy-Liacco Flores and concurred in by Presiding Commissioner Manolo B. Gorospe
and Commissioner Evelyn I. Fetalino.
[12]

Rollo, p. 117; Annex 1, Comment.
[13]

Rollo, pp. 158-166.
[14]

168 SCRA 391, 401 (1988).
[15]

Revised Rules of the House of Representatives Electoral Tribunal, Rule 17.
[16]

248 SCRA 400, 420-421 (1995).
[17]

96 Phil. 294 (1954).
[18]

LGC, 39(a).
[19]

248 SCRA 301, 326 (1995).
[20]

73 Phil. 453, 459 (1941).
EN BANC
[G.R. No. 134047. December 15, 1999]
AMADO S. BAGATSING, ERNESTO M. MACEDA, and JAIME
LOPEZ, petitioners, vs. COMMISSION ON ELECTIONS and JOSE L.
ATIENZA, respondents.
A M E N D E D D E C I S I O N
KAPUNAN, J .:
In this petition for certiorari petitioners seek to annul and set aside the Resolution dated
June 4, 1998 of the Commission on Elections (COMELEC) First Division directing the
proclamation of private respondent as Mayor of the City of Manila for having been issued with
grave abuse of discretion amounting to lack, or excess, of jurisdiction.
The backdrop of the instant case reveals the following antecedent facts:
Petitioners Amado S. Bagatsing, Ernesto M. Maceda and Jaime Lopez and herein private
respondent Jose L. Atienza were candidates for the position of Mayor of Manila in the May 11,
1998 elections.
On May 18, 1998, seven (7) days after the elections, petitioners filed with the COMELEC a
complaint for disqualification against private respondent, docketed as SPA No. 98-319, on the
ground that the latter allegedly caused the disbursement of public funds in the amount of Three
Million Three Hundred Seventy-Five Thousand (P3,375,000.00) Pesos, more or less, within the
prohibited forty-five-day period before the elections in violation of Article 22, Section 261 (g)
(2)
[1]
of Batas Pambansa Blg. 881, otherwise known as the Omnibus Election Code of the
Philippines. The alleged disbursement was intended to be distributed in the form of financial
assistance to the public school teachers of the City of Manila who manned the precinct polls in
that city during the elections.
On May 20, 1998, the COMELEC (First Division)
*
issued an order suspending the
proclamation of private respondent, the dispositive portion of which reads:
PREMISES CONSIDERED, it appearing that the evidence presented consisting of
disbursement voucher and the general payroll evidencing payment to the teachers in
the form of financial assistance dated May 5, 1998, in violation of Section 68 of the
Omnibus Election Code, which provides:
SEC. 68 Disqualifications. - Any candidate who in an action or protest in which he is
a party is declared by final decision of a competent court guilty of, or found by the
Commission of having (a) given money or other material consideration to influence,
induce or corrupt the voters or public officials performing electoral functions; (b)
committed acts of terrorism to enhance his candidacy, (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received or
made any contribution prohibited under Section 89, 95, 96, 97 and 104; or (e) violated
any Section 80, 83, 85, 86 and 261, paragraphs d, e, k, v and cc, sub-paragraph 6, shall
be disqualified from continuing as a candidate, or if he has been elected, from holding
the office. Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code, unless
said person has waived hi (sic) statues (sic) as permanent resident or immigrant of a
foreign country in accordance with the residence requirement provided for in the
election laws (Sec. 25, 1971 EC) (underscoring ours).
show a probable cause of commission of election offenses which are grounds for
disqualification, and the evidence in support of disqualification is strong, the City
Board of Canvassers of Manila is hereby directed to complete the canvassing of
election returns of the City of Manila, but to suspend proclamation of respondent Jose
L. Atienza, Jr. should he obtain the winning number of votes for the position of City
Mayor of Manila, until such time when the petition for disqualification against him
shall have been resolved.
The Executive Director of this Commission is directed to cause the immediate
implementation of this Order.
SO ORDERED.
[2]

On May 21, 1998, private respondent filed a Motion for Reconsideration and sought to set
aside the afore-quoted order directing the suspension of his proclamation as mayor.
On June 4, 1998, the COMELEC (First Division)
*
handed down a resolution granting the
motion for reconsideration, ratiocinating thusly:
The Commission En Banc finds correct respondent's reliance on COMELEC
Resolution No. 2050 for his cause. The Resolution, promulgated by the Commission
in order to formulate the rules governing the disposition of cases of disqualification
filed by virtue of Section 68 of the Omnibus Election Code in relation to Section 6 of
Republic Act 6646 otherwise known as the Electoral Reform Law of 1987, pertinently
provides:
2. Any complaint for disqualification based on Section 68 of the Omnibus Election
Code, filed after the elections against a candidate who has already been proclaimed
as winner shall be dismissed as a disqualification case. However, the complaint shall
be referred for preliminary investigation to the Law Department of the Commission.
Where a similar complaint is filed after the elections but before proclamation of the
respondent candidate, the complaint shall nevertheless, be dismissed as a
disqualification case. However, the complaint shall be referred for preliminary
investigation to the Law Department. If, before proclamation, the Law Department
makes a prima facie finding of guilt and the corresponding information has been filed
with the appropriate trial court, the complainant may file a petition for suspension of
the proclamation of the respondent with the Court before which the criminal case is
pending and the said Court may order the suspension of the proclamation, if the
evidence of guilt is strong.
The applicability of COMELEC Resolution No. 2050 on cases of such nature as the
one at bench, had been upheld by the Supreme Court in Lozano vs. Commission on
Elections, G.R. 94628, October 28, 1991, when it declared:
Resolution No. 2050 specifically mandates a definite policy and procedure for
disqualification cases. The COMELEC Rules of Procedure speak of special actions,
which include disqualification cases, in general. Hence, as between a specific and a
general rule, the former shall necessarily prevail.
It is thus, a good law which could govern this case.
Considering therefore, that the petition for disqualification was filed after the election
but before respondent's proclamation, the Commission En Banc, conformably with
Resolution No. 2050, hereby dismisses the same as a disqualification case but refers
Petitioners' charges of election offense against respondent to the Law Department for
appropriate action.
[3]

The decretal portion of the resolution reads:
WHEREFORE, in view of the foregoing, the Commission FIRST DIVISION hereby
GRANTS the Motion to lift the order of suspension of respondent's
proclamation. The Order of the First Division suspending respondent's proclamation
as City Mayor of Manila is SET ASIDE. The City Board of Canvassers of Manila is
hereby DIRECTED to CONVENE, COMPLETE the CANVASS and PROCLAIM
the candidate obtaining the highest number of votes for said position. Petitioners'
complaints against respondent for violation of the Omnibus Election Code is hereby
referred to the Law Department for preliminary investigation.
SO ORDERED.
[4]

That same day at around eleven oclock in the morning, petitioners filed a Motion to
Suspend Immediate Intended Proclamation of Respondent. In the afternoon of the same day,
petitioners likewise filed a Motion for Reconsideration and a Second Motion to Suspend
Immediate Intended Proclamation of Respondent before COMELEC en banc.
Meanwhile, the City Board of Canvassers of Manila reconvened at three oclock in the
afternoon of the same day, June 4, 1998, and proclaimed private respondent as the duly elected
Mayor of the City of Manila.
[5]

On June 25, 1999, without waiting for the resolution of their motion for reconsideration
pending before the COMELEC en banc, petitioners filed the instant petition to set aside the June
4, 1998 resolution of the COMELEC's First Division.
Records reveal, however, that said motion for reconsideration pending before the
COMELEC en banc was denied in its Order of July 2, 1998 at the instance of herein petitioners
themselves for the reason that they had already filed a petition before this Court docketed as G.R.
No. 134047.
[6]

The instant petition seeks to strike down as having been issued with grave abuse of
discretion COMELEC First Division Resolution dated June 4, 1998 dismissing the petition for
disqualification and referring the case to the COMELECs Law Department for preliminary
investigation, based on COMELEC Resolution No. 2050. Petitioners contend that Resolution
No. 2050 had already been nullified by the decision of this Court in Sunga vs. Comelec.
[7]
Such
being the case, petitioners argue that the COMELEC should be compelled by mandamus to
assume jurisdiction and continue to hear and decide the disqualification case.
COMELEC Resolution No. 2050, adopted on November 3, 1988, reads:
WHEREAS, there remain pending before the Commission, a number of cases of
disqualification filed by virtue of the provisions of Section 68 of the Omnibus
Election Code in relation to Section 6 of R.A. 6646, otherwise known as the Electoral
Reforms Law of 1987;
WHEREAS, opinions of the members of the Commission on matters of procedure in
dealing with cases of this nature and the manner of disposing of the same have not
been uniform;
WHEREAS, in order to avoid conflicts of opinion in the disposition or
disqualification cases contemplated under Section 68 of the Omnibus Election Code
in relation to Section 6 of Rep. Act 6646, there is a strongly felt need to lay down a
definite policy in the disposition of this specific class of disqualification cases;
NOW, THEREFORE, on motion duly seconded, the Commission en banc:
RESOLVED, as it hereby resolves, to formulate the following rules governing the
disposition of cases of disqualification filed by virtue of Section 68 of the Omnibus
Election Code in relation to Section 6 of R.A. No. 6646, otherwise known as the
Electoral Reforms Law of 1987:
1. Any complaint for the disqualification of a duly registered candidate based upon
any of the grounds specifically enumerated under Section 68 of the Omnibus Election
Code, filed directly with the Commission before an election in which the respondent
is a candidate, shall be inquired into by the Commission for the purpose of
determining whether the acts complained of have in fact been committed. Where the
inquiry by the Commission results in a finding before election, that the respondent
candidate did in fact commit the acts complained, the Commission shall order the
disqualification of the respondent candidate from continuing as such candidate.
In case such complaint was not resolved before the election, the Commission
may motu proprio, or an (sic) motion of any of the parties, refer the complaint to the
law Department of the Commission as the instrument of the latter in the exercise of its
exclusive power to conduct a preliminary investigation of all cases involving criminal
infractions of the election laws. Such recourse may be availed of irrespective of
whether the respondent has been elected or has lost in the election.
2. Any complaint for disqualification based on Section 68 of the Omnibus Election
Code in relation to Section 6 of Rep. Act No. 6646 filed after the election against a
candidate who has already been proclaimed as winner shall be dismissed as a
disqualification case. However, the complaint shall be referred for preliminary
investigation to the Law Department of the Commission.
Where a similar complaint is filed after election but before proclamation of the
respondent candidate, the complaint shall, nevertheless, be dismissed as a
disqualification case. However, the complaint shall be referred for preliminary
investigation to the Law Department. If, before proclamation, the Law Department
makes a prima facie finding of guilt and the corresponding information has been filed
with the appropriate trial court, the complainant may file a petition for suspension of
the proclamation of the respondent with the court before which the criminal case is
pending and the said court may order the suspension of the proclamation if the
evidence of guilt is strong.
3. The Law Department shall terminate the preliminary investigation within thirty
(30) days from receipt of the referral and shall submit its study, report and
recommendation to the Commission en banc within five (5) days from the conclusion
of the preliminary investigation. If it makes a prima facie finding of guilt, it shall
submit with such study the Information for filing with the appropriate court.
The above-quoted resolution covers two (2) different aspects:
First, as contemplated in paragraph 1, a complaint for disqualification filed before the
election which must be inquired into by the COMELEC for the purpose of determining whether
the acts complained of have in fact been committed. Where the inquiry results in a finding
before the election, the COMELEC shall order the candidate's disqualification. In case the
complaint was not resolved before the election, the COMELEC maymotu propio or on motion of
any of the parties, refer the said complaint to the Law Department of the COMELEC for
preliminary investigation.
Second, as laid down in paragraph 2, a complaint for disqualification filed after the
election against a candidate (a) who has not yet been proclaimed as winner, or (b) who has
already been proclaimed as winner. In both cases, the complaint shall be dismissed as a
disqualification case but shall be referred to the Law Department of the COMELEC for
preliminary investigation. However, if before proclamation, the Law Department makes
a prima facie finding of guilt and the corresponding information has been filed with the
appropriate trial court, the complainant may file a petition for suspension of the proclamation of
the respondent with the court before which the criminal case is pending and the said court may
order the suspension of the proclamation if the evidence of guilt is strong.
Petitioners contend that Resolution No. 2050, upon which the COMELEC anchored its
dismissal of the disqualification case, is no longer a good law since it has been nullified in
toto by this Court in Sunga v. COMELEC.
[8]

Contrary to petitioners' contention, nowhere did the Court strike down COMELEC
Resolution No. 2050 in Sunga. There, we held that:
xxx We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or
directing the dismissal of a disqualification case filed before the election but which
remained unresolved after the election. What the Resolution mandates in such a case
is for the Commission to refer the complaint to its Law Department for investigation
to determine whether the acts complained of have in fact been committed by the
candidate sought to be disqualified. The findings of the Law Department then
become the basis for disqualifying the erring candidate. This is totally different from
the other two situations contemplated by Resolution No. 2050, i.e., a disqualification
case filed after the election but before the proclamation of winners and that filed after
the election and the proclamation of winners, wherein it was specifically directed by
the same Resolution to be dismissed as a disqualification case.
Moreover, Resolution No. 2050 as interpreted in Silvestre v. Duavit infringes on Sec.
6 of RA No. 6646, which provides:
SEC. 6. Effects of Disqualification Case.--Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him
shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning
number of votes in such election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry or protest and, upon motion of the complainant
or any intervenor, may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his guilt is strong (italics
supplied).
Clearly, the legislative intent is that the COMELEC should continue the trial and
hearing of the disqualification case to its conclusion, i.e., until judgment is rendered
thereon. The word 'shall' signifies that this requirement of the law is mandatory,
operating to impose a positive duty which must be enforced. The implication is that
the COMELEC is left with no discretion but to proceed with the disqualification case
even after the election. Thus, in providing for the outright dismissal of the
disqualification case which remains unresolved after the election, Silvestre v.
Duavit in effect disallows what RA No. 6646 imperatively requires. xxx
[9]

The ruling in Sunga is not applicable to the case at bar. There, the complaint for
disqualification was filed prior to the May 8, 1995 elections. Under Section 6 of R.A. 6646,
where the complaint was filed before the election but for any reason, a candidate is not declared
by final judgment before the election to be disqualified and he is voted for and receives the
winning number of votes in such election, the COMELEC shall continue with the trial and
hearing of the case. Thus, the facts in Sunga fall under the contemplation of Section 6,
namely: (1) the complaint for disqualification was filed before the election; (2) for any reason,
the issue of disqualification was not finally resolved before the election; and (3) the candidate
sought to be disqualified is voted for and received the winning number of votes. Consequently,
the COMELEC should have continued with the hearing and decided the case on the
merits. Instead, COMELEC erroneously dismissed the disqualification case and referred the
matter to the Law Department for preliminary investigation of the criminal aspect of the
case. The deleterious effect of the premature and precipitate dismissal was pointed out by this
Court, thus:
xxx A candidate guilty of election offenses would be undeservedly rewarded, instead
of punished, by the dismissal of the disqualification case against him simply because
the investigating body was unable, for any reason caused upon it, to determine before
the election if the offenses were indeed committed by the candidate sought to be
disqualified. All that the erring aspirant would need to do is to employ delaying
tactics so that the disqualification case based on the commission of election offenses
would not be decided before the election. This scenario is productive of more fraud
which certainly is not the main intent and purpose of the law.
[10]

In sharp contrast, the complaint for disqualification against private respondent in the case at
bar was lodged on May 18, 1998 or seven (7) days after the 1998 elections. Pursuant to
paragraph 2 of Resolution No. 2050, the complaint shall be dismissed as a disqualification case
and shall be referred for preliminary investigation to the Law Department of the
COMELEC. Under this scenario, the complaint for disqualification is filed after the election
which may be either before or after the proclamation of the respondent candidate.
The COMELEC in Sunga obviously misapplied Resolution No. 2050 in dismissing the
disqualification case therein simply because it remained unresolved before the election and, in
lieu thereof, referring it to its Law Department for possible criminal prosecution of the
respondent for violation of the election laws. Notably, there is nothing in paragraph 1
of Resolution No. 2050 which directs the dismissal of the disqualification case not resolved
before the election. It says the COMELEC may motu propio or on motion of any of the parties,
refer the complaint to the Law Department of the Commission as an instrument of the latter in
the exercise of its exclusive power to conduct a preliminary investigation of all cases involving
criminal infractions of the election laws. The referral to the Law Department is discretionary on
the part of the COMELEC and in no way may it be interpreted that the COMELEC will dismiss
the disqualification case or will no longer continue with the hearing of the same. The reason for
this is that a disqualification case may have two (2) aspects, the administrative, which requires
only a preponderance of evidence to prove disqualification, and the criminal, which necessitates
proof beyond reasonable doubt to convict. Where in the opinion of the COMELEC, the acts
which are grounds for disqualification also constitute a criminal offense or offenses, referral of
the case to the Law Department is proper.
Petitioners argue that the COMELEC should have proceeded and continued with the trial of
SPA No. 98-319 and rendered judgment as the law and evidence would warrant, invoking
Section 6 of R.A. 6646.
We do not agree. Section 6 explicitly applies only to any candidate who has been declared
by final judgment to be disqualified before an election. The section provides further that 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 xxx. There
is no provision in R.A. 6646 that treats of a situation where the complaint for disqualification is
filed after the election. If the intention of the law is for the COMELEC to hear and decide
disqualification cases filed after the election, it would not have made a distinction between cases
filed before and after the election. Section 6 would not have used the word before preceding
an election. Thus, the need for implementing rules as embodied in Comelec Resolution No.
2050 which provide that any complaint for disqualification based on Section 6 of R.A. 6646 is
filed after the election against a candidate who has already been proclaimed as winner shall be
dismissed as a disqualification case, but the complaint shall be referred for preliminary
investigation to the Law Department of COMELEC.
The applicability of Resolution No. 2050 on disqualification cases was in fact upheld by this
Court in Lozano vs. Yorac,
[11]
the Court said:
xxx Resolution No. 2050 was passed by reason of the variance in opinions of the
members of respondent commission on matters of procedure in dealing with cases of
disqualification filed pursuant to Section 68 of the Omnibus Election code in relation
to Section 6 of Republic Act No. 6646, or the Electoral Reforms Law of 1987, and the
manner of disposing of the same had not been uniform. Hence, the COMELEC
decided to lay down a definite policy in the disposition of these disqualification
cases. With this purpose in mind, the commission en banc adopted Resolution No.
2050. xxx
xxx
xxx Resolution No. 2050 specifically mandates a definite policy and procedure for
disqualification cases. The COMELEC Rules of Procedure speak of special actions,
which include disqualification cases, in general. Hence, as between a specific and a
general rule, the former shall necessarily prevail.
xxx
[12]

It bears stressing that the Court in Sunga recognized the difference between a
disqualification case filed before and after an election when, as earlier mentioned, it stated that
the referral of the complaint for disqualification where the case is filed before election is totally
different from the other two situations contemplated by Resolution No. 2050, i.e., a
disqualification case filed after the election but before the proclamation of winners and that filed
after the election and the proclamation winners, wherein it was specifically directed by the same
Resolution to be dismissed as a disqualification case.
Why there is a difference between a petition for disqualification filed before and after the
election proceeds from the fact that before the election, the question of disqualification is
raised as an issue before the electorate and those who vote for the candidate assume the risk that
should said candidate be disqualified after the election, their votes would be declared stray or
invalid votes. Such would not be true in the case of one filed after the electorate has already
voted.
[13]

Petitioners further postulate that the proclamation of private respondent on June 4, 1998 is
void because it was made without awaiting for the lapse of the five-day period for the finality of
decisions rendered by a division in special actions," citing Sec. 13 (c) Rule 18 of the
COMELEC Rules of procedure providing that unless a motion for reconsideration is seasonably
filed, a decision or resolution of a Division shall become final and executory after the lapse of
five (5) days in Special actions and Special cases. xxx
We find this contention without merit.
The mere filing of a petition for disqualification is not a ground to suspend the proclamation
of the winning candidate. In the absence of an order suspending proclamation, the winning
candidate who is sought to be disqualified is entitled to be proclaimed as a matter of law. This
is clear from Section 6 of R.A. 6646 providing that the proclamation of the candidate sought to
be disqualified is suspended only if there is an order of the COMELEC suspending
proclamation. Here, there was no order suspending private respondents
proclamation. Consequently, private respondent was legally proclaimed on June 4, 1998.
Neither did the COMELEC err in not ordering the suspension of private respondent's
proclamation. The second paragraph of paragraph 2 of Resolution No. 2050 provides that where
a complaint is filed after the elections but before proclamation, as in this case, the complaint
must be dismissed as a disqualification case but shall be referred to the Law Department for
preliminary investigation. If before the proclamation, the Law Department makes a prima
facie finding of guilt and the corresponding information has been filed with the appropriate trial
court, the complainant may file a petition for suspension of the proclamation of respondent with
the court before which the criminal case is pending and that court may order the suspension of
the proclamation if the evidence of guilt is strong.
[14]
It appearing that none of the foregoing
circumstances obtain herein as there is no prima facie finding of guilt yet, a suspension of private
respondent's proclamation is not warranted. The mere pendency of a disqualification case
against a candidate, and a winning candidate at that, does not justify the suspension of his
proclamation after winning in the election. To hold otherwise would unduly encourage the filing
of baseless and malicious petitions for disqualification if only to effect the suspension of the
proclamation of the winning candidate, not only to his damage and prejudice but also to the
defeat of the sovereign will of the electorate, and for the undue benefit of undeserving third
parties.
[15]

Before we end, we take note that when petitioners filed the instant petition on June 25, 1999,
they had before the COMELEC en banc a pending motion for reconsideration of the June 4,
1998 resolution of the First Division. The Court does not look with favor the practice of seeking
remedy from this Court without waiting for the resolution of the pending action before the
tribunal below, absent extraordinary circumstances warranting appropriate action by this
Court. This makes a short shrift of established rules of procedure intended for orderly
administration of justice.
The COMELEC (First Division) in its June 4, 1998 resolution correctly referred petitioners
complaint for disqualification to its Law Division for appropriate action. There being no
temporary restraining order from this Court, that body as an instrument of the COMELEC
should have continued with its task of determining whether or not there exists probable cause to
warrant the criminal prosecution of those who may be liable for the alleged election offenses.
WHEREFORE, the instant petition is hereby DISMISSED. The respondent Commission
on Elections is hereby directed to RESOLVE with great dispatch the pending incident relative to
the preliminary investigation being conducted by its Law Department.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing,
Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Pardo, J., no part.



[1]
Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense:
x x x
"(g) Appointment of new employees, creation of new positions, promotion, or giving salary increases. - During the
period of forty-five days before a regular election and thirty days before a special election (1) x x x.
"(2) Any government official who promotes or gives any increase of salary or remuneration or privilege to any
government official or employees, including those in government-owned or controlled corporations."
*
Composed of Manolo B. Gorospe as Presiding Commissioner and Evalyn I. Fetalino and Teresita Dy-Liacco
Flores as Commissioners with the latter dissenting.
[2]
Rollo, pp. 44-45.
*
Composed of then Chairman Bernardo P. Pardo, Presiding Commissioner Manolo B. Gorospe and Commissioner
Teresita Dy-Liacco Flores.
[3]
Id., at 32-33.
[4]
Id., at 34.
[5]
Id., at 35.
[6]
Id., at 87.
[7]
288 SCRA 76 (1998).
[8]
288 SCRA 76 (1998).
[9]
Sunga v. COMELEC, supra, pp. 85-86.
[10]
Id., at 87.
[11]
203 SCRA 256 (1991).
[12]
Id., at 265-267.
[13]
Comments on the Omnibus Election Code, Ruben E. Agpalo, 1998 Revised Edition, p. 126.
[14]
See p. 8.
[15]
Singco v. COMELEC, 101 SCRA 420, 429 (1980).

EN BANC
[G.R. No. 133486. January 28, 2000]
ABS-CBN BROADCASTING CORPORATION, petitioner, vs. COMMISSION
ON ELECTIONS, respondent.
D E C I S I O N
PANGANIBAN, J .:
The holding of exit polls and the dissemination of their results through mass media constitute an
essential part of the freedoms of speech and of the press. Hence, the Comelec cannot ban them
totally in the guise of promoting clean, honest, orderly and credible elections. Quite the contrary,
exit polls -- properly conducted and publicized -- can be vital tools in eliminating the evils of
election-fixing and fraud. Narrowly tailored countermeasures may be prescribed by the Comelec
so as to minimize or suppress the incidental problems in the conduct of exit polls, without
transgressing in any manner the fundamental rights of our people.
The Case and the Facts
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court assailing Commission
on Elections (Comelec) en banc Resolution No. 98-1419
[1]
dated April 21, 1998. In the said
Resolution, the poll body
"RESOLVED to approve the issuance of a restraining order to stop ABS-CBN or
any other groups, its agents or representatives from conducting such exit survey
and to authorize the Honorable Chairman to issue the same."
The Resolution was issued by the Comelec allegedly upon "information from [a] reliable source
that ABS-CBN (Lopez Group) has prepared a project, with PR groups, to conduct radio-TV
coverage of the elections x x x and to make [an] exit survey of the x x x vote during the elections
for national officials particularly for President and Vice President, results of which shall be
[broadcast] immediately."
[2]
The electoral body believed that such project might conflict with the
official Comelec count, as well as the unofficial quick count of the National Movement for Free
Elections (Namfrel). It also noted that it had not authorized or deputized Petitioner ABS-CBN to
undertake the exit survey.
On May 9, 1998, this Court issued the Temporary Restraining Order prayed for by petitioner. We
directed the Comelec to cease and desist, until further orders, from implementing the assailed
Resolution or the restraining order issued pursuant thereto, if any. In fact, the exit polls were
actually conducted and reported by media without any difficulty or problem.
The Issues
Petitioner raises this lone issue: "Whether or not the Respondent Commission acted with grave
abuse of discretion amounting to a lack or excess of jurisdiction when it approved the issuance of
a restraining order enjoining the petitioner or any [other group], its agents or representatives
from conducting exit polls during the x x x May 11 elections."
[3]

In his Memorandum,
[4]
the solicitor general, in seeking to dismiss the Petition, brings up
additional issues: (1) mootness and (2) prematurity, because of petitioner's failure to seek a
reconsideration of the assailed Comelec Resolution.
The Court's Ruling
The Petition
[5]
is meritorious.
Procedural Issues: Mootness and Prematurity
The solicitor general contends that the petition is moot and academic, because the May 11, 1998
election has already been held and done with. Allegedly, there is no longer any actual
controversy before us.
The issue is not totally moot. While the assailed Resolution referred specifically to the May 11,
1998 election, its implications on the people's fundamental freedom of expression transcend the
past election. The holding of periodic elections is a basic feature of our democratic government.
By its very nature, exit polling is tied up with elections. To set aside the resolution of the issue
now will only postpone a task that could well crop up again in future elections.
[6]

In any event, in Salonga v. Cruz Pano, the Court had occasion to reiterate that it "also has the
duty to formulate guiding and controlling constitutional principles, precepts, doctrines, or rules.
It has the symbolic function of educating bench and bar on the extent of protection given by
constitutional guarantees."
[7]
Since the fundamental freedoms of speech and of the press are being
invoked here, we have resolved to settle, for the guidance of posterity, whether they likewise
protect the holding of exit polls and the dissemination of data derived therefrom.
The solicitor general further contends that the Petition should be dismissed for petitioner's failure
to exhaust available remedies before the issuing forum, specifically the filing of a motion for
reconsideration.
This Court, however, has ruled in the past that this procedural requirement may be glossed over
to prevent a miscarriage of justice,
[8]
when the issue involves the principle of social justice or the
protection of labor,
[9]
when the decision or resolution sought to be set aside is a nullity,
[10]
or when
the need for relief is extremely urgent and certiorari is the only adequate and speedy remedy
available.
[11]

The instant Petition assails a Resolution issued by the Comelec en banc on April 21, 1998, only
twenty (20) days before the election itself. Besides, the petitioner got hold of a copy thereof only
on May 4, 1998. Under the circumstances, there was hardly enough opportunity to move for a
reconsideration and to obtain a swift resolution in time for the May 11, 1998 elections.
Moreover, not only is time of the essence; the Petition involves transcendental constitutional
issues. Direct resort to this Court through a special civil action for certiorari is therefore
justified.
Main Issue: Validity of Conducting Exit Polls
An exit poll is a species of electoral survey conducted by qualified individuals or groups of
individuals for the purpose of determining the probable result of an election by confidentially
asking randomly selected voters whom they have voted for, immediately after they have
officially cast their ballots. The results of the survey are announced to the public, usually through
the mass media, to give an advance overview of how, in the opinion of the polling individuals or
organizations, the electorate voted. In our electoral history, exit polls had not been resorted to
until the recent May 11, 1998 elections.
In its Petition, ABS-CBN Broadcasting Corporation maintains that it is a responsible member of
the mass media, committed to report balanced election-related data, including "the exclusive
results of Social Weather Station (SWS) surveys conducted in fifteen administrative regions."
It argues that the holding of exit polls and the nationwide reporting of their results are valid
exercises of the freedoms of speech and of the press. It submits that, in precipitately and
unqualifiedly restraining the holding and the reporting of exit polls, the Comelec gravely abused
its discretion and grossly violated the petitioner's constitutional rights.
Public respondent, on the other hand, vehemently denies that, in issuing the assailed Resolution,
it gravely abused its discretion. It insists that the issuance thereof was "pursuant to its
constitutional and statutory powers to promote a clean, honest, orderly and credible May 11,
1998 elections"; and "to protect, preserve and maintain the secrecy and sanctity of the ballot." It
contends that "the conduct of exit surveys might unduly confuse and influence the voters," and
that the surveys were designed "to condition the minds of people and cause confusion as to who
are the winners and the [losers] in the election," which in turn may result in "violence and
anarchy."
Public respondent further argues that "exit surveys indirectly violate the constitutional principle
to preserve the sanctity of the ballots," as the "voters are lured to reveal the contents of ballots,"
in violation of Section 2, Article V of the Constitution;
[12]
and relevant provisions of the Omnibus
Election Code.
[13]
It submits that the constitutionally protected freedoms invoked by petitioner
"are not immune to regulation by the State in the legitimate exercise of its police power," such as
in the present case.
The solicitor general, in support of the public respondent, adds that the exit polls pose a "clear
and present danger of destroying the credibility and integrity of the electoral process,"
considering that they are not supervised by any government agency and can in general be
manipulated easily. He insists that these polls would sow confusion among the voters and would
undermine the official tabulation of votes conducted by the Commission, as well as the quick
count undertaken by the Namfrel.
Admittedly, no law prohibits the holding and the reporting of exit polls. The question can thus be
more narrowly defined: May the Comelec, in the exercise of its powers, totally ban exit polls? In
answering this question, we need to review quickly our jurisprudence on the freedoms of speech
and of the press.
Nature and Scope of Freedoms of Speech and of the Press
The freedom of expression is a fundamental principle of our democratic government. It "is a
'preferred' right and, therefore, stands on a higher level than substantive economic or other
liberties. x x x [T]his must be so because the lessons of history, both political and legal, illustrate
that freedom of thought and speech is the indispensable condition of nearly every other form of
freedom."
[14]

Our Constitution clearly mandates that no law shall be passed abridging the freedom of speech or
of the press.
[15]
In the landmark case Gonzales v. Comelec,
[16]
this Court enunciated that at the very
least, free speech and a free press consist of the liberty to discuss publicly and truthfully any
matter of public interest without prior restraint.
The freedom of expression is a means of assuring individual self-fulfillment, of attaining the
truth, of securing participation by the people in social and political decision-making, and of
maintaining the balance between stability and change.
[17]
It represents a profound commitment to
the principle that debates on public issues should be uninhibited, robust, and wide open.
[18]
It
means more than the right to approve existing political beliefs or economic arrangements, to lend
support to official measures, or to take refuge in the existing climate of opinion on any matter of
public consequence. And paraphrasing the eminent justice Oliver Wendell Holmes,
[19]
we stress
that the freedom encompasses the thought we hate, no less than the thought we agree with.
Limitations
The realities of life in a complex society, however, preclude an absolute exercise of the freedoms
of speech and of the press. Such freedoms could not remain unfettered and unrestrained at all
times and under all circumstances.
[20]
They are not immune to regulation by the State in the
exercise of its police power.
[21]
While the liberty to think is absolute, the power to express such
thought in words and deeds has limitations.
In Cabansag v. Fernandez
[22]
this Court had occasion to discuss two theoretical tests
in determining the validity of restrictions to such freedoms, as follows:
"These are the 'clear and present danger' rule and the 'dangerous tendency' rule.
The first, as interpreted in a number of cases, means that the evil consequence of
the comment or utterance must be 'extremely serious and the degree of imminence
extremely high' before the utterance can be punished. The danger to be guarded
against is the 'substantive evil' sought to be prevented. x x x"
[23]

"The 'dangerous tendency' rule, on the other hand, x x x may be epitomized as
follows: If the words uttered create a dangerous tendency which the state has a
right to prevent, then such words are punishable. It is not necessary that some
definite or immediate acts of force, violence, or unlawfulness be advocated. It is
sufficient that such acts be advocated in general terms. Nor is it necessary that the
language used be reasonably calculated to incite persons to acts of force, violence,
or unlawfulness. It is sufficient if the natural tendency and probable effect of the
utterance be to bring about the substantive evil which the legislative body seeks to
prevent."
[24]

Unquestionably, this Court adheres to the "clear and present danger" test. It implicitly did in its
earlier decisions in Primicias v. Fugoso
[25]
and American Bible Society v. City of Manila;
[26]
as well
as in later ones, Vera v. Arca,
[27]
Navarro v. Villegas,
[28]
Imbong v. Ferrer,
[29]
Blo Umpar Adiong v.
Comelec
[30]
and, more recently, in Iglesia ni Cristo v. MTRCB.
[31]
In setting the standard or test for
the "clear and present danger" doctrine, the Court echoed the words of justice Holmes: "The
question in every case is whether the words used are used in such circumstances and are of such
a nature as to create a clear and present danger that they will bring about the substantive evils
that Congress has a right to prevent. It is a question of proximity and degree."
[32]

A limitation on the freedom of expression may be justified only by a danger of
such substantive character that the state has a right to prevent. Unlike in the "dangerous
tendency" doctrine, the danger must not only be clear but also present. "Present" refers to the
time element; the danger must not only be probable but very likely to be inevitable.
[33]
The evil
sought to be avoided must be so substantive as to justify a clamp over one's mouth or a restraint
of a writing instrument.
[34]

J ustification for a Restriction
Doctrinally, the Court has always ruled in favor of the freedom of expression, and any restriction
is treated an exemption. The power to exercise prior restraint is not to be presumed; rather the
presumption is against its validity.
[35]
And it is respondent's burden to overthrow such
presumption. Any act that restrains speech should be greeted with furrowed brows,
[36]
so it has
been said.
To justify a restriction, the promotion of a substantial government interest must be clearly
shown.
[37]
Thus:
"A government regulation is sufficiently justified if it is within the constitutional
power of the government, if it furthers an important or substantial government
interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that interest."
[38]

Hence, even though the government's purposes are legitimate and substantial, they cannot be
pursued by means that broadly, stifle fundamental personal liberties, when the end can be more
narrowly achieved.
[39]

The freedoms of speech and of the press should all the more be upheld when what is sought to be
curtailed is the dissemination of information meant to add meaning to the equally vital right of
suffrage.
[40]
We cannot support any ruling or order "the effect of which would be to nullify so
vital a constitutional right as free speech."
[41]
When faced with borderline situations in which the
freedom of a candidate or a party to speak or the freedom of the electorate to know is invoked
against actions allegedly made to assure clean and free elections, this Court shall lean in favor of
freedom. For in the ultimate analysis, the freedom of the citizen and the State's power to regulate
should not be antagonistic. There can be no free and honest elections if, in the efforts to maintain
them, the freedom to speak and the right to know are unduly curtailed.
[42]

True, the government has a stake in protecting the fundamental right to vote by providing voting
places that are safe and accessible. It has the duty to secure the secrecy of the ballot and to
preserve the sanctity and the integrity of the electoral process. However, in order to justify a
restriction of the people's freedoms of speech and of the press, the state's responsibility of
ensuring orderly voting must far outweigh them.
These freedoms have additional importance, because exit polls generate important research
data which may be used to study influencing factors and trends in voting behavior. An absolute
prohibition would thus be unreasonably restrictive, because it effectively prevents the use of exit
poll data not only for election-day projections, but also for long-term research.
[43]

Comelec Ban on Exit Polling
In the case at bar, the Comelec justifies its assailed Resolution as having been issued pursuant to
its constitutional mandate to ensure a free, orderly, honest, credible and peaceful election. While
admitting that "the conduct of an exit poll and the broadcast of the results thereof [are] x x x an
exercise of press freedom," it argues that "[p]ress freedom may be curtailed if the exercise
thereof creates a clear and present danger to the community or it has a dangerous tendency." It
then contends that "an exit poll has the tendency to sow confusion considering the randomness of
selecting interviewees, which further make[s] the exit poll highly unreliable. The probability that
the results of such exit poll may not be in harmony with the official count made by the Comelec
x x x is ever present. In other words, the exit poll has a clear and present danger of destroying the
credibility and integrity of the electoral process."
Such arguments are purely speculative and clearly untenable. First, by the very nature of a
survey, the interviewees or participants are selected at random, so that the results will as much as
possible be representative or reflective of the general sentiment or view of the community or
group polled. Second, the survey result is not meant to replace or be at par with the official
Comelec count. It consists merely of the opinion of the polling group as to who the electorate in
general has probably voted for, based on the limited data gathered from polled individuals.
Finally, not at stake here are the credibility and the integrity of the elections, which are exercises
that are separate and independent from the exit polls. The holding and the reporting of the results
of exit polls cannot undermine those of the elections, since the former is only part of the latter. If
at all, the outcome of one can only be indicative of the other.
The Comelec's concern with the possible noncommunicative effect of exit polls -- disorder and
confusion in the voting centers -- does not justify a total ban on them. Undoubtedly, the assailed
Comelec Resolution is too broad, since its application is without qualification as to whether the
polling is disruptive or not.
[44]
Concededly, the Omnibus Election Code prohibits disruptive
behavior around the voting centers.
[45]
There is no showing, however, that exit polls or the means
to interview voters cause chaos in voting centers. Neither has any evidence been presented
proving that the presence of exit poll reporters near an election precinct tends to create disorder
or confuse the voters.
Moreover, the prohibition incidentally prevents the collection of exit poll data and their use for
any purpose. The valuable information and ideas that could be derived from them, based on the
voters' answers to the survey questions will forever remain unknown and unexplored. Unless the
ban is restrained, candidates, researchers, social scientists and the electorate in general would be
deprived of studies on the impact of current events and of election-day and other factors on
voters' choices.
In Daily Herald Co. v. Munro,
[46]
the US Supreme Court held that a statute, one of the purposes of
which was to prevent the broadcasting of early returns, was unconstitutional because such
purpose was impermissible, and the statute was neither narrowly tailored to advance a state
interest nor the least restrictive alternative. Furthermore, the general interest of the State in
insulating voters from outside influences is insufficient to justify speech regulation. Just as
curtailing election-day broadcasts and newspaper editorials for the reason that they might
indirectly affect the voters' choices is impermissible, so is regulating speech via an exit poll
restriction.
[47]

The absolute ban imposed by the Comelec cannot, therefore, be justified. It does not leave open
any alternative channel of communication to gather the type of information obtained through exit
polling. On the other hand, there are other valid and reasonable ways and means to achieve the
Comelec end of avoiding or minimizing disorder and confusion that may be brought about by
exit surveys.
For instance, a specific limited area for conducting exit polls may be designated. Only
professional survey groups may be allowed to conduct the same. Pollsters may be kept at a
reasonable distance from the voting center. They may be required to explain to voters that the
latter may refuse to be interviewed, and that the interview is not part of the official balloting
process. The pollsters may further be required to wear distinctive clothing that would show they
are not election officials.
[48]
Additionally, they may be required to undertake an information
campaign on the nature of the exercise and the results to be obtained therefrom. These measures,
together with a general prohibition of disruptive behavior, could ensure a clean, safe and orderly
election.
For its part, Petitioner ABS-CBN explains its survey methodology as follows: (1) communities
are randomly selected in each province; (2) residences to be polled in such communities are also
chosen at random; (3) only individuals who have already voted, as shown by the indelible ink on
their fingers, are interviewed; (4) the interviewers use no cameras of any sort; (5) the poll results
are released to the public only on the day after the elections.
[49]
These precautions, together with
the possible measures earlier stated, may be undertaken to abate the Comelec's fear, without
consequently and unjustifiably stilling the people's voice.
With the foregoing premises, we conclude that the interest of the state in reducing disruption is
outweighed by the drastic abridgment of the constitutionally guaranteed rights of the media and
the electorate. Quite the contrary, instead of disrupting elections, exit polls -- properly conducted
and publicized -- can be vital tools for the holding of honest, orderly, peaceful and credible
elections; and for the elimination of election-fixing, fraud and other electoral ills.
Violation of Ballot Secrecy
The contention of public respondent that exit polls indirectly transgress the sanctity and the
secrecy of the ballot is off-tangent to the real issue. Petitioner does not seek access to the ballots
cast by the voters. The ballot system of voting is not at issue here.
The reason behind the principle of ballot secrecy is to avoid vote buying through voter
identification. Thus, voters are prohibited from exhibiting the contents of their official ballots to
other persons, from making copies thereof, or from putting distinguishing marks thereon so as to
be identified. Also proscribed is finding out the contents of the ballots cast by particular voters or
disclosing those of disabled or illiterate voters who have been assisted. Clearly, what is forbidden
is the association of voters with their respective votes, for the purpose of assuring that the votes
have been cast in accordance with the instructions of a third party. This result cannot, however,
be achieved merely through the voters' verbal and confidential disclosure to a pollster of whom
they have voted for.
In exit polls, the contents of the official ballot are not actually exposed. Furthermore, the
revelation of whom an elector has voted for is not compulsory, but voluntary. Voters may also
choose not to reveal their identities. Indeed, narrowly tailored countermeasures may be
prescribed by the Comelec, so as to minimize or suppress incidental problems in the conduct of
exit polls, without transgressing the fundamental rights of our people.
WHEREFORE, the Petition is GRANTED, and the Temporary Restraining Order issued by the
Court on May 9, 1998 is made PERMANENT. Assailed Minute Resolution No. 98-1419 issued
by the Comelec en bancon April 21, 1998 is hereby NULLIFIED and SET ASIDE. No costs.
SO ORDERED.
Davide, Jr., CJ., Bellosillo, Puno, Quisumbing, Purisima, Buena, Gonzaga-Reyes, Ynares-
Santiago, and De Leon Jr., JJ., concur.
Melo, J., joins separate opinion of J. Vitug.
Vitug, J., see separate opinion.
Kapunan, J., see dissenting opinion.
Mendoza, J., joins separate opinion of J. Vitug.
Pardo, J., no part.



[1]
Rollo, p. 14.
[2]
Ibid. Words in parentheses in the original; those in brackets supplied.
[3]
Petition, p. 4.
[4]
Rollo, p. 78 et seq.
[5]
This case was deemed submitted for resolution on January 19, 1999, upon receipt by the Court of the
Memorandum for the Respondent
[6]
See Gamboa Jr. v. Aguirre Jr., GR No. 134213, July 20, 1999.
[7]
134 SCRA 438, 463, February 18, 1985; per Gutierrez Jr., J.
[8]
Solis v. NLRC, 263 SCRA 629, October 28, 1996.
[9]
Zurbano Sr. v. NLRC, 228 SCRA 556, December 17, 1993.
[10]
Alfante v. NLRC, 283 SCRA 340, December 15, 1997; Saldana v. Court of Appeals, 190 SCRA 386, October 11,
1990.
[11]
Republic v. Sandiganbayan, 269 SCRA 316, March 7, 1997; Gelmart Industries Phils., Inc. v. NLRC, 176 SCRA
295, August 10, 1989; Philippine Air Lines Employees Association v. Philippine Air Lines, Inc., 111 SCRA 215,
January 30, 1982.
[12]
"Sec. 2. The congress shall provide a system for securing the secrecy and sanctity of the ballot x x x."
[13]
Citing 195, 196, 207 and 261 (z-5, 7 & 16)
[14]
Salonga v. Cruz Pao, supra, pp. 458-459. See also Gonzales v. Comelec, 27 SCRA 835, 849, 856-857, April 18,
1969; Philippine Blooming Mills Employees Organization v. Philippine Blooming Mills Co., Inc., 51 SCRA 191,
June 5, 1973; National Press Club v. Comelec, 207 SCRA 1, 9, March 5, 1992; Blo Umpar Adiong v. Comelec, 207
SCRA 712, 715, March 31, 1992.
[15]
4, Art. III of the Constitution.
[16]
Supra, p. 856, per Fernando, J. (later CJ)
[17]
Ibid., p. 857; citing Emerson, toward a General Theory of the First Amendment (1966)
[18]
Ibid., citing New York Times Co. v. Sullivan, 376 US 254, 270 (1964)
[19]
US v. Schwimmer, 279 US 644 (1929)
[20]
Ibid., p. 858.
[21]
Badoy Jr. v. Comelec, 35 SCRA 285, 289, October 17, 1970.
[22]
102 Phil 152, October 18, 1957, per Bautista-Angelo, J.
[23]
Ibid., p. 161.
[24]
Ibid., citing Gitlow v. New York, 268 US 652, 69 L ed. 1138 (1925)
[25]
80 Phil 71 (1948)
[26]
101 Phil 386 (1957)
[27]
28 SCRA 351, May 26, 1969.
[28]
31 SCRA 731, February 26, 1970.
[29]
35 SCRA 28, September 11, 1970.
[30]
Supra.
[31]
259 SCRA 529, July 26, 1996.
[32]
Cabansag v. Fernandez, supra; citing Schenck v. US, 249 US 47 (1919)
[33]
Gonzales v. Comelec, supra, pp. 860-861.
[34]
Adiong v. Comelec, supra.
[35]
Iglesia ni Cristo v. Court of Appeals, supra; Gonzales v. Katigbak, 137 SCRA 717, July 22, 1985.
[36]
Iglesia ni Cristo v. Court of Appeals, supra, pp. 545-546; citing Near v. Minnesota, 283 US 697 (1931); Bantam
books, Inc. v. Sullivan, 372 US 58 (1963); and New York Times Co. v. Sullivan, supra.
[37]
Blo Umpar Adiong v. Comelec, supra. See also National Press Club v. Comelec, supra.
[38]
Adiong v. Comelec, supra.
[39]
Gonzales v. Comelec, supra, p. 871, citing Shelton v. Tucker, 364 US 479, 488.
[40]
Mutuc v. Comelec, 36 SCRA 228, 233-34, November 26, 1970; per Fernando, J. (later CJ)
[41]
Ibid., p. 236.
[42]
Adiong v. Comelec, supra.
[43]
Exit Polls and the First Amendment, 98 Harvard Law Review 1927 (1985)
[44]
See CBS v. Smith, 681 F. Supp. 794 (SD Fla. 1988)
[45]
See 261 (d, e, f, k & z-11). See also Arts. 148, 149 & 153 of the Revised Penal Code.
[46]
838 F 2d 380 (9th Cir. 1988)
[47]
Ibid., citing Mills v. Alabama, 384 US 214, 218-20, 86 S Ct. 1434, 1436-37, 16 L Ed. 2d 484 (1966); Vanasco v.
Schwartz, 401 F Supp. 87, 100 (SDNY 1975), affd mem., 423 Us 1041, 96 S Ct. 763, 46 L Ed. 2d 630 (1976)
[48]
Exit Polls and the First Amendment, supra, p. 1935.
[49]
Petitioners Memorandum, p. 15.
EN BANC
[G.R. No. 147571. May 5, 2001]
SOCIAL WEATHER STATIONS, INCORPORATED and
KAMAHALAN PUBLISHING CORPORATION, doing business as
MANILA STANDARD, petitioners, vs. COMMISSION ON
ELECTIONS, respondent.
D E C I S I O N
MENDOZA, J .:
Petitioner, Social Weather Stations, Inc. (SWS), is a private non-stock, non-profit social
research institution conducting surveys in various fields, including economics, politics,
demography, and social development, and thereafter processing, analyzing, and publicly
reporting the results thereof. On the other hand, petitioner Kamahalan Publishing Corporation
publishes the Manila Standard, a newspaper of general circulation, which features newsworthy
items of information including election surveys.
Petitioners brought this action for prohibition to enjoin the Commission on Elections from
enforcing 5.4 of R.A. No. 9006 (Fair Election Act), which provides:
Surveys affecting national candidates shall not be published fifteen (15) days before
an election and surveys affecting local candidates shall not be published seven (7)
days before an election.
The term election surveys is defined in 5.1 of the law as follows:
Election surveys refer to the measurement of opinions and perceptions of the voters as
regards a candidates popularity, qualifications, platforms or a matter of public
discussion in relation to the election, including voters preference for candidates or
publicly discussed issues during the campaign period (hereafter referred to as
Survey).
To implement 5.4, Resolution 3636, 24(h), dated March 1, 2001, of the COMELEC enjoins
Surveys affecting national candidates shall not be published fifteen (15) days before
an election and surveys affecting local candidates shall not be published seven (7)
days before an election.
Petitioner SWS states that it wishes to conduct an election survey throughout the period of
the elections both at the national and local levels and release to the media the results of such
survey as well as publish them directly. Petitioner Kamahalan Publishing Corporation, on the
other hand, states that it intends to publish election survey results up to the last day of the
elections on May 14, 2001.
Petitioners argue that the restriction on the publication of election survey results constitutes
a prior restraint on the exercise of freedom of speech without any clear and present danger to
justify such restraint. They claim that SWS and other pollsters conducted and published the
results of surveys prior to the 1992, 1995, and 1998 elections up to as close as two days before
the election day without causing confusion among the voters and that there is neither empirical
nor historical evidence to support the conclusion that there is an immediate and inevitable danger
to the voting process posed by election surveys. They point out that no similar restriction is
imposed on politicians from explaining their opinion or on newspapers or broadcast media from
writing and publishing articles concerning political issues up to the day of the election.
Consequently, they contend that there is no reason for ordinary voters to be denied access to the
results of election surveys which are relatively objective.
Respondent Commission on Elections justifies the restrictions in 5.4 of R.A. No. 9006 as
necessary to prevent the manipulation and corruption of the electoral process by unscrupulous
and erroneous surveys just before the election. It contends that (1) the prohibition on the
publication of election survey results during the period proscribed by law bears a rational
connection to the objective of the law, i.e., the prevention of the debasement of the electoral
process resulting from manipulated surveys, bandwagon effect, and absence of reply; (2) it is
narrowly tailored to meet the evils sought to be prevented; and (3) the impairment of freedom
of expression is minimal, the restriction being limited both in duration, i.e., the last 15 days
before the national election and the last 7 days before a local election, and in scope as it does not
prohibit election survey results but only require timeliness. Respondent claims that in National
Press Club v. COMELEC,
[1]
a total ban on political advertisements, with candidates being
merely allocated broadcast time during the so-called COMELEC space or COMELEC hour, was
upheld by this Court. In contrast, according to respondent, it states that the prohibition in 5.4 of
R.A. No. 9006 is much more limited.
For reasons hereunder given, we hold that 5.4 of R.A. No. 9006 constitutes an
unconstitutional abridgment of freedom of speech, expression, and the press.
To be sure, 5.4 lays a prior restraint on freedom of speech, expression, and the press by
prohibiting the publication of election survey results affecting candidates within the prescribed
periods of fifteen (15) days immediately preceding a national election and seven (7) days before
a local election. Because of the preferred status of the constitutional rights of speech, expression,
and the press, such a measure is vitiated by a weighty presumption of invalidity.
[2]
Indeed, any
system of prior restraints of expression comes to this Court bearing a heavy presumption against
its constitutional validity. . . . The Government thus carries a heavy burden of showing
justification for the enforcement of such restraint.
[3]
There is thus a reversal of the normal
presumption of validity that inheres in every legislation.
Nor may it be argued that because of Art. IX-C, 4 of the Constitution, which gives the
COMELEC supervisory power to regulate the enjoyment or utilization of franchise for the
operation of media of communication, no presumption of invalidity attaches to a measure like
5.4. For as we have pointed out in sustaining the ban on media political advertisements, the
grant of power to the COMELEC under Art. IX-C, 4 is limited to ensuring equal opportunity,
time, space, and the right to reply as well as uniform and reasonable rates of charges for the use
of such media facilities for public information campaigns and forums among candidates.
[4]
This
Court stated:
The technical effect of Article IX (C) (4) of the Constitution may be seen to be that no
presumption of invalidity arises in respect of exercises of supervisory or regulatory
authority on the part of the Comelec for the purpose of securing equal opportunity
among candidates for political office, although such supervision or regulation may
result in some limitation of the rights of free speech and free press.
[5]

MR. JUSTICE KAPUNAN dissents. He rejects as inappropriate the test of clear and
present danger for determining the validity of 5.4. Indeed, as has been pointed out in Osmea v.
COMELEC,
[6]
this test was originally formulated for the criminal law and only later appropriated
for free speech cases. Hence, while it may be useful for determining the validity of laws dealing
with inciting to sedition or incendiary speech, it may not be adequate for such regulations as the
one in question. For such a test is concerned with questions of the gravity and imminence of the
danger as basis for curtailing free speech, which is not the case of 5.4 and similar regulations.
Instead, MR. JUSTICE KAPUNAN purports to engage in a form of balancing by weighing
and balancing the circumstances to determine whether public interest [in free, orderly, honest,
peaceful and credible elections] is served by the regulation of the free enjoyment of the rights
(page 7). After canvassing the reasons for the prohibition, i.e., to prevent last-minute pressure on
voters, the creation of bandwagon effect to favor candidates, misinformation, the junking of
weak and losing candidates by their parties, and the form of election cheating called dagdag-
bawas and invoking the States power to supervise media of information during the election
period (pages 11-16), the dissenting opinion simply concludes:
Viewed in the light of the legitimate and significant objectives of Section 5.4, it may
be seen that its limiting impact on the rights of free speech and of the press is not
unduly repressive or unreasonable. Indeed, it is a mere restriction, not an absolute
prohibition, on the publication of election surveys. It is limited in duration; it applies
only during the period when the voters are presumably contemplating whom they
should elect and when they are most susceptible to such unwarranted persuasion.
These surveys may be published thereafter. (Pages 17-18)
The dissent does not, however, show why, on balance, these considerations should outweigh
the value of freedom of expression. Instead, reliance is placed on Art. IX-C, 4. As already
stated, the purpose of Art. IX-C, 4 is to ensure equal opportunity, time, and space and the right
of reply, including reasonable, equal rates therefor for public information campaigns and forums
among candidates. Hence the validity of the ban on media advertising. It is noteworthy that
R.A. No. 9006, 14 has lifted the ban and now allows candidates to advertise their candidacies
in print and broadcast media. Indeed, to sustain the ban on the publication of survey results
would sanction the censorship of all speaking by candidates in an election on the ground that the
usual bombasts and hyperbolic claims made during the campaigns can confuse voters and thus
debase the electoral process.
In sum, the dissent has engaged only in a balancing at the margin. This form of ad hoc
balancing predictably results in sustaining the challenged legislation and leaves freedom of
speech, expression, and the press with little protection. For anyone who can bring a plausible
justification forward can easily show a rational connection between the statute and a legitimate
governmental purpose. In contrast, the balancing of interest undertaken by then Justice Castro
in Gonzales v. COMELEC,
[7]
from which the dissent in this case takes its cue, was a strong one
resulting in his conclusion that 50-B of R.A. No. 4880, which limited the period of election
campaign and partisan political activity, was an unconstitutional abridgment of freedom of
expression.
Nor can the ban on election surveys be justified on the ground that there are other
countries 78, according to the Solicitor General, while the dissent cites 28 which similarly
impose restrictions on the publication of election surveys. At best this survey is inconclusive. It
is noteworthy that in the United States no restriction on the publication of election survey results
exists. It cannot be argued that this is because the United States is a mature democracy. Neither
are there laws imposing an embargo on survey results, even for a limited period, in other
countries. As pointed out by petitioners, the United Kingdom, Austria, Belgium, Denmark,
Estonia, Finland, Iceland, Ireland, Latvia, Malta, Macedonia, the Netherlands, Norway, Sweden,
and Ukraine, some of which are no older nor more mature than the Philippines in political
development, do not restrict the publication of election survey results.
What test should then be employed to determine the constitutional validity of 5.4? The
United States Supreme Court, through Chief Justice Warren, held in United States v. OBrien:
[A] government regulation is sufficiently justified [1] if it is within the
constitutional power of the Government; [2] if it furthers an important or
substantial governmental interest; [3] if the governmental interest is unrelated to
the suppression of free expression; and [4] if the incidental restriction on alleged
First Amendment freedoms [of speech, expression and press] is no greater than is
essential to the furtherance of that interest.
[8]

This is so far the most influential test for distinguishing content-based from content-neutral
regulations and is said to have become canonical in the review of such laws.
[9]
It is noteworthy
that the OBrien test has been applied by this Court in at least two cases.
[10]

Under this test, even if a law furthers an important or substantial governmental interest, it
should be invalidated if such governmental interest is not unrelated to the suppression of free
expression. Moreover, even if the purpose is unrelated to the suppression of free speech, the law
should nevertheless be invalidated if the restriction on freedom of expression is greater than is
necessary to achieve the governmental purpose in question.
Our inquiry should accordingly focus on these two considerations as applied to 5.4.
First. Sec. 5.4 fails to meet criterion [3] of the OBrien test because the causal connection
of expression to the asserted governmental interest makes such interest not unrelated to the
suppression of free expression. By prohibiting the publication of election survey results because
of the possibility that such publication might undermine the integrity of the election, 5.4
actually suppresses a whole class of expression, while allowing the expression of opinion
concerning the same subject matter by newspaper columnists, radio and TV commentators,
armchair theorists, and other opinion makers. In effect, 5.4 shows a bias for a particular subject
matter, if not viewpoint, by preferring personal opinion to statistical results. The constitutional
guarantee of freedom of expression means that the government has no power to restrict
expression because of its message, its ideas, its subject matter, or its content.
[11]
The inhibition
of speech should be upheld only if the expression falls within one of the few unprotected
categories dealt with in Chaplinsky v. New Hampshire,
[12]
thus:
There are certain well-defined and narrowly limited classes of speech, the prevention
and punishment of which have never been thought to raise any Constitutional
problem. These include the lewd and obscene, the profane, the libelous, and the
insulting or fighting words those which by their very utterance inflict injury or
tend to incite an immediate breach of the peace. [S]uch utterances are no essential part
of any exposition of ideas, and are of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the social interest in
order and morality.
Nor is there justification for the prior restraint which 5.4 lays on protected
speech. In Near v. Minnesota,
[13]
it was held:
[The] protection even as to previous restraint is not absolutely unlimited. But the
limitation has been recognized only in exceptional cases. . . . No one would question
but that a government might prevent actual obstruction to its recruiting service or the
publication of the sailing dates of transports or the number and location of troops. On
similar grounds, the primary requirements of decency may be enforced against
obscene publications. The security of the community life may be protected against
incitements to acts of violence and the overthrow by force of orderly government . . . .
Thus, contrary to the claim of the Solicitor General, the prohibition imposed by 5.4 cannot
be justified on the ground that it is only for a limited period and is only incidental. The
prohibition may be for a limited time, but the curtailment of the right of expression is direct,
absolute, and substantial. It constitutes a total suppression of a category of speech and is not
made less so because it is only for a period of fifteen (15) days immediately before a national
election and seven (7) days immediately before a local election.
This sufficiently distinguishes 5.4 from R.A. No. 6646, 11(b), which this Court found to
be valid in National Press Club v. COMELEC
[14]
and Osmea v. COMELEC.
[15]
For the ban
imposed by R.A. No. 6646, 11(b) is not only authorized by a specific constitutional
provision,
[16]
but it also provided an alternative so that, as this Court pointed out in Osmea, there
was actually no ban but only a substitution of media advertisements by the COMELEC space
and COMELEC hour.
Second. Even if the governmental interest sought to be promoted is unrelated to the
suppression of speech and the resulting restriction of free expression is only incidental, 5.4
nonetheless fails to meet criterion [4] of the OBrien test, namely, that the restriction be not
greater than is necessary to further the governmental interest. As already stated, 5.4 aims at the
prevention of last-minute pressure on voters, the creation of bandwagon effect, junking of
weak or losing candidates, and resort to the form of election cheating called dagdag-
bawas. Praiseworthy as these aims of the regulation might be, they cannot be attained at the
sacrifice of the fundamental right of expression, when such aim can be more narrowly pursued
by punishing unlawful acts, rather than speech because of apprehension that such speech creates
the danger of such evils. Thus, under the Administrative Code of 1987,
[17]
the COMELEC is
given the power:
To stop any illegal activity, or confiscate, tear down, and stop any unlawful,
libelous, misleading or false election propaganda, after due notice and hearing.
This is surely a less restrictive means than the prohibition contained in 5.4. Pursuant to this
power of the COMELEC, it can confiscate bogus survey results calculated to mislead voters.
Candidates can have their own surveys conducted. No right of reply can be invoked by
others. No principle of equality is involved. It is a free market to which each candidate brings
his ideas. As for the purpose of the law to prevent bandwagon effects, it is doubtful whether the
Government can deal with this natural-enough tendency of some voters. Some voters want to be
identified with the winners. Some are susceptible to the herd mentality. Can these be
legitimately prohibited by suppressing the publication of survey results which are a form of
expression? It has been held that [mere] legislative preferences or beliefs respecting matters of
public convenience may well support regulation directed at other personal activities, but be
insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of
democratic institutions.
[18]

To summarize then, we hold that 5.4 is invalid because (1) it imposes a prior restraint on
the freedom of expression, (2) it is a direct and total suppression of a category of expression even
though such suppression is only for a limited period, and (3) the governmental interest sought to
be promoted can be achieved by means other than the suppression of freedom of expression.
On the other hand, the COMELEC contends that under Art. IX-A, 7 of the Constitution, its
decisions, orders, or resolutions may be reviewed by this Court only by certiorari. The flaws in
this argument is that it assumes that its Resolution 3636, dated March 1, 2001 is a decision,
order, or resolution within the meaning of Art. IX-A, 7. Indeed, counsel for COMELEC
maintains that Resolution 3636 was rendered by the Commission. However, the Resolution
does not purport to adjudicate the right of any party. It is not an exercise by the COMELEC of
its adjudicatory power to settle the claims of parties. To the contrary, Resolution 3636 clearly
states that it is promulgated to implement the provisions of R.A. No. 9006. Hence, there is no
basis for the COMELECs claim that this petition for prohibition is inappropriate. Prohibition
has been found appropriate for testing the constitutionality of various election laws, rules, and
regulations.
[19]

WHEREFORE, the petition for prohibition is GRANTED and 5.4 of R.A. No. 9006 and
24(h) of COMELEC Resolution 3636, dated March 1, 2001, are declared unconstitutional.
SO ORDERED.
Davide, Jr., C.J., Vitug, and Gonzaga-Reyes, JJ., concur.
Bellosillo, Pardo, Ynares-Santiago, and Sandoval-Gutierrez, JJ., join the dissent of J.
Kapunan.
Melo, Puno, and Panganiban, JJ., see concurring opinion.
Kapunan, J., see dissenting opinion.
Quisumbing, Buena, and De Leon, Jr., JJ., on leave.



[1]
207 SCRA 1 (1992).
[2]
Ayer Productions Pty. Ltd. v. Capulong, 160 SCRA 861, 873 (1988).
[3]
New York Times v. United States, 403 U.S. 713, 714, 29 L.Ed. 2d 822, 824 (1971).
[4]
National Press Club v. COMELEC, 207 SCRA 1 (1992); Osmea v. COMELEC, 288 SCRA 447 (1998).
[5]
National Press Club v. COMELEC, supra at 9.
[6]
288 SCRA 447 (1998).
[7]
27 SCRA 835, 888 (1969) (Castro, J., concurring and dissenting).
[8]
391 U.S. 367, 377, 20 L.Ed.2d 672, 680 (1968) (bracketed numbers added).
[9]
G. Gunther & K. Sullivan, Constitutional Law 1217 (13th ed. 1997).
[10]
Adiong v. COMELEC, 207 SCRA 712 (1992); Osmea v. COMELEC, supra.
[11]
Police Dept. v. Moshley, 408 U.S. 92, 95, 33 L.Ed.2d 212, 216 (1972).
[12]
315 U.S. 568, 571-572, 86 L.Ed. 1031, 1035 (1942). See John Hart Ely, Flag Desecration: A Case Study in the
Roles of Categorization and Balancing in First Amendment Analysis, 88 Harv. L. Rev. 1482, 1497 (1975).
[13]
283 U.S. 697, 715-16, 75 L.Ed. 1357, 1367 (1931); See also New York Times v. United States, 403 U.S. 7-13,
29 L.Ed.2d 822 (1971).
[14]
Supra.
[15]
Supra.
[16]
Art. IX-C, 4.
[17]
Bk. V, Tit. I, Subtit. C, Ch. 1, 3 (1) (emphasis added).
[18]
Schneider v. Irvington, 308 U.S. 147, 161, 84 L.Ed. 155 (1939).
[19]
See, e.g., Mutuc v. COMELEC, 36 SCRA 228 (1970); Gonzales v. COMELEC, 27 SCRA 835 (1969).
EN BANC
[G.R. No. 162777. August 31, 2004]
FRANCISCO I. CHAVEZ, petitioner, vs. COMMISSION ON ELECTIONS,
represented by its Chairman, BENJAMIN S. ABALOS,
ESMERALDA AMORA-LADRA, in her capacity as Acting Director
IV, National Capital Judicial Region, Commission on Elections,
and the SOLICITOR GENERAL,respondents.
D E C I S I O N
AZCUNA, J .:
In this petition for prohibition with prayer for the issuance of a writ of preliminary
injunction, Francisco I. Chavez stands as a taxpayer and a citizen asking this Court to
enjoin the Commission on Elections (COMELEC) from enforcing Section 32 of its
Resolution No. 6520, dated January 6, 2004. The assailed provision is, as follows:
Section 32. All propaganda materials such as posters, streamers, stickers or paintings
on walls and other materials showing the picture, image, or name of a person, and all
advertisements on print, in radio or on television showing the image or mentioning the
name of a person, who subsequent to the placement or display thereof becomes a
candidate for public office shall be immediately removed by said candidate and radio
station, print media or television station within 3 days after the effectivity of these
implementing rules; otherwise, he and said radio station, print media or television
station shall be presumed to have conducted premature campaigning in violation of
Section 80 of the Omnibus Election Code.
Petitioner Chavez, on various dates, entered into formal agreements with certain
establishments to endorse their products. On August 18, 2003, he authorized a certain
Andrew So to use his name and image for 96 North, a clothing company. Petitioner
also signed Endorsement Agreements with Konka International Plastics Manufacturing
Corporation and another corporation involved in the amusement and video games
business, G-Box. These last two agreements were entered into on October 14,
2003 and November 10, 2003, respectively. Pursuant to these agreements, three
billboards were set up along the Balintawak Interchange of the North Expressway. One
billboard showed petitioner promoting the plastic products of Konka International
Plastics Manufacturing Corporation, and the other two showed petitioner endorsing the
clothes of 96 North. One more billboard was set up along Roxas Boulevard showing
petitioner promoting the game and amusement parlors of G-Box.
On December 30, 2003, however, petitioner filed his certificate of candidacy for the
position of Senator under Alyansa ng Pag-asa, a tripartite alliance of three political
parties: PROMDI, REPORMA, and Aksyon Demokratiko.
On January 6, 2004, respondent COMELEC issued Resolution No. 6520, which
contained Section 32, the provision assailed herein. On January 21, 2004, petitioner
was directed to comply with the said provision by the COMELECs Law Department. He
replied, on January 29, 2004, by requesting the COMELEC that he be informed as to
how he may have violated the assailed provision. He sent another letter dated February
23, 2004, this time asking the COMELEC that he be exempted from the application of
Section 32, considering that the billboards adverted to are mere product endorsements
and cannot be construed as paraphernalia for premature campaigning under the rules.
The COMELEC answered petitioners request by issuing another letter,
dated February 27, 2004, wherein it ordered him to remove or cause the removal of the
billboards, or to cover them from public view pending the approval of his request.
Feeling aggrieved, petitioner Chavez asks this Court that the COMELEC be
enjoined from enforcing the assailed provision. He urges this Court to declare the
assailed provision unconstitutional as the same is allegedly (1) a gross violation of the
non-impairment clause; (2) an invalid exercise of police power; (3) in the nature of an
ex-post facto law; (4) contrary to the Fair Elections Act; and (5) invalid due to
overbreadth.
Is Section 32 of COMELEC Resolution No. 6520 an invalid exercise of police
power? Petitioner argues that the billboards, while they exhibit his name and image, do
not at all announce his candidacy for any public office nor solicit support for such
candidacy from the electorate. They are, he claims, mere product endorsements and
not election propaganda. Prohibiting, therefore, their exhibition to the public is not
within the scope of the powers of the COMELEC, he concludes.
This Court takes a contrary view. Police power, as an inherent attribute of
sovereignty, is the power to prescribe regulations to promote the health, morals, peace,
education, good order, or safety, and the general welfare of the people.
[1]
To determine
the validity of a police measure, two questions must be asked: (1) Does the interest of
the public in general, as distinguished from those of a particular class, require the
exercise of police power? and (2) Are the means employed reasonably necessary for
the accomplishment of the purpose and not unduly oppressive upon individuals?
A close examination of the assailed provision reveals that its primary objectives are
to prohibit premature campaigning and to level the playing field for candidates of public
office, to equalize the situation between popular or rich candidates, on one hand, and
lesser-known or poorer candidates, on the other, by preventing the former from enjoying
undue advantage in exposure and publicity on account of their resources and
popularity. The latter is a valid reason for the exercise of police power as held in
National Press Club v. COMELEC,
[2]
wherein the petitioners questioned the
constitutionality of Section 11(b) of Republic Act No. 6646, which prohibited the sale or
donation of print space and air time for campaigning or other political purposes, except
to the COMELEC. The obvious intention of this provision is to equalize, as far as
practicable, the situations of rich and poor candidates by preventing the former from
enjoying the undue advantage offered by huge campaign war chests. This Court ruled
therein that this objective is of special importance and urgency in a country which, like
ours, is characterized by extreme disparity in income distribution between the economic
elite and the rest of society, and by the prevalence of poverty, with so many of our
population falling below the poverty line.
Moreover, petitioner cannot claim that the subject billboards are purely product
endorsements and do not announce nor solicit any support for his candidacy. Under the
Omnibus Election Code, election campaign or partisan political activity is defined as
an act designed to promote the election or defeat of a particular candidate or candidates
to a public office. Activities included under this definition are:
(1) Forming organizations, associations, clubs, committees, or other groups of
persons for the purpose of soliciting votes and/or undertaking any campaign for or
against a candidate
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other
similar assemblies, for the purpose of soliciting votes and/or undertaking any
campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for or
against the election of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support
or oppose the election of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a
candidate.
[3]
(underscoring ours)
It is true that when petitioner entered into the contracts or agreements to endorse
certain products, he acted as a private individual and had all the right to lend his name
and image to these products. However, when he filed his certificate of candidacy for
Senator, the billboards featuring his name and image assumed partisan political
character because the same indirectly promoted his candidacy. Therefore, the
COMELEC was acting well within its scope of powers when it required petitioner to
discontinue the display of the subject billboards. If the subject billboards were to be
allowed, candidates for public office whose name and image are used to advertise
commercial products would have more opportunity to make themselves known to the
electorate, to the disadvantage of other candidates who do not have the same chance
of lending their faces and names to endorse popular commercial products as image
models. Similarly, an individual intending to run for public office within the next few
months, could pay private corporations to use him as their image model with the
intention of familiarizing the public with his name and image even before the start of the
campaign period. This, without a doubt, would be a circumvention of the rule against
premature campaigning:
Sec. 80. Election campaign or partisan political activity outside campaign period. It
shall be unlawful for any person, whether or not a voter or candidate, or for any party,
or association of persons, to engage in an election campaign or partisan political
activity except during the campaign period. x x x
[4]

Article IX (C) (4) of the Constitution provides:
Sec. 4. The Commission may, during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the operation of transportation
and other public utilities, media of communication or information, all grants, special
privileges, or concessions granted by the Government or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation or
its subsidiary. Such supervision or regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates in connection with the
objective of holding free, orderly, honest, peaceful, and credible elections.
Under the abovementioned Constitutional provision, the COMELEC is expressly
authorized to supervise or regulate the enjoyment or utilization of all media
communication or information to ensure equal opportunity, time, and space. All these
are aimed at the holding of free, orderly, honest, peaceful, and credible elections.
Neither is Section 32 of Resolution No. 6520 a gross violation of the non-impairment
clause. The non-impairment clause of the Constitution must yield to the loftier purposes
targeted by the Government.
[5]
Equal opportunity to proffer oneself for public office,
without regard to the level of financial resources one may have at his disposal, is indeed
of vital interest to the public. The State has the duty to enact and implement rules to
safeguard this interest. Time and again, this Court has said that contracts affecting
public interest contain an implied reservation of the police power as a postulate of the
existing legal order. This power can be activated at anytime to change the provisions of
the contract, or even abrogate it entirely, for the promotion or protection of the general
welfare. Such an act will not militate against the impairment clause, which is subject to
and limited by the paramount police power.
[6]

Furthermore, this Court notes that the very contracts entered into by petitioner
provide that the endorsers photograph and image shall be utilized in whatever form,
mode and manner in keeping with norms of decency, reasonableness, morals and
law;
[7]
and in whatever form, mode and manner not contrary to law and norms of
decency,
[8]
and in whatever form, mode and manner in keeping with norms of decency,
reasonableness, morals and law.
[9]

Petitioner also claims that Section 32 of Resolution No. 6520 is in the nature of
an ex post facto law. He urges this Court to believe that the assailed provision makes
an individual criminally liable for an election offense for not removing such
advertisement, even if at the time the said advertisement was exhibited, the same was
clearly legal. Hence, it makes a person, whose name or image is featured in any such
advertisement, liable for premature campaigning under the Omnibus Election Code.
[10]
A
close scrutiny of this rationale, however, demonstrates its lack of
persuasiveness. Section 32, although not penal in nature, defines an offense and
prescribes a penalty for said offense. Laws of this nature must operate prospectively,
except when they are favorable to the accused. It should be noted, however, that the
offense defined in the assailed provision is not the putting up of propaganda materials
such as posters, streamers, stickers or paintings on walls and other materials showing
the picture, image or name of a person, and all advertisements on print, in radio or on
television showing the image or mentioning the name of a person, who subsequent to
the placement or display thereof becomes a candidate for public office. Nor does it
prohibit or consider an offense the entering of contracts for such propaganda materials
by an individual who subsequently becomes a candidate for public office. One definitely
does not commit an offense by entering into a contract with private parties to use his
name and image to endorse certain products prior to his becoming a candidate for
public office. The offense, as expressly prescribed in the assailed provision, is the non-
removal of the described propaganda materials three (3) days after the effectivity of
COMELEC Resolution No. 6520. If the candidate for public office fails to remove such
propaganda materials after the given period, he shall be liable under Section 80 of the
Omnibus Election Code for premature campaigning. Indeed, nowhere is it indicated in
the assailed provision that it shall operate retroactively. There is, therefore, no ex post
facto law in this case.
Next, petitioner urges that Section 32 is a violation of the Fair Elections
Act. According to him, under this law, billboards are already permitted as lawful election
propaganda. He claims, therefore, that the COMELEC, in effectively prohibiting the use
of billboards as a form of election propaganda through the assailed provision, violated
the Fair Elections Act. Petitioners argument is not tenable. The Solicitor General
rightly points out that the assailed provision does not prohibit billboards as lawful
election propaganda. It only regulates their use to prevent premature campaigning and
to equalize, as much as practicable, the situation of all candidates by preventing popular
and rich candidates from gaining undue advantage in exposure and publicity on account
of their resources and popularity.
[11]
Moreover, by regulating the use of such election
propaganda materials, the COMELEC is merely doing its duty under the law. Under
Sections 3 and 13 of the Fair Elections Act, all election propaganda are subject to the
supervision and regulation by the COMELEC:
SECTION 3. Lawful Election Propaganda. -- Election propaganda, whether on
television, cable television radio, newspapers or any other medium is hereby allowed
for all registered political parties, national, regional, sectoral parties or organizations
participating under the party list elections and for all bona fide candidates seeking
national and local elective positions subject to the limitation on authorized expenses
of candidates and political parties observance of truth in advertising and to the
supervision and regulation by the Commission on Elections (COMELEC).
For the purpose of this Act, lawful election propaganda shall include:
3.1. Pamphlets, leaflets, cards, decals, stickers or other written or printed materials the
size of which does not exceed eight and one half inches in width and fourteen
inches in length;
3.2. Handwritten or printed letters urging voters to vote for or against any particular
political party or candidate for public office;
3.3. Cloth, paper or cardboard posters whether framed or posted, with an area not
exceeding two(2) feet by three (3) feet, except that, at the site and on the occasion
of a public meeting or rally, or in announcing the holding of said meeting or rally,
streamers not exceeding three (3) feet by eight (8) feet in size, shall be
allowed: Provided, That said streamers may be displayed five (5) days before the
date of the meeting or rally and shall be removed within twenty-four (24) hours
after said meeting or rally;
3.4. Paid advertisements in print or broadcast media: Provided, That the
advertisements shall follow the requirements set forth in Section 4 of this Act; and
3.5. All other forms of election propaganda not prohibited by the Omnibus Election
Code or this Act.
x x x
SECTION 13. Authority of the COMELEC to Promulgate Rules; Election Offenses.
- The COMELEC shall promulgate and furnish all political parties and candidates and
the mass media entities the rules and regulations for the implementation of this Act,
consistent with the criteria established in Article IX-C, Section 4 of the Constitution
and Section 86 of the Omnibus Election Code (Batas Pambansa Blg. 881).
Rules and regulations promulgated by the COMELEC under and by authority of this
Section shall take effect on the seventh day after their publication in at least two (2)
daily newspapers of general circulation. Prior to effectivity of said rules and
regulations, no political advertisement or propaganda for or against any candidate or
political party shall be published or broadcast through mass media.
Violation of this Act and the rules and regulations of the COMELEC issued to
implement this Act shall be an election offense punishable under the first and second
paragraphs of Section 264 of the Omnibus Election Code (Batas Pambansa Blg. 881).
Finally, petitioner contends that Section 32 of COMELEC Resolution No. 6520 is
invalid because of overbreadth.
A statute or regulation is considered void for overbreadth when it offends the
constitutional principle that a governmental purpose to control or prevent activities
constitutionally subject to State regulations may not be achieved by means that sweep
unnecessarily broadly and thereby invade the area of protected freedoms.
[12]

The provision in question is limited in its operation both as to time and scope. It
only disallows the continued display of a persons propaganda materials and
advertisements after he has filed a certificate of candidacy and before the start of the
campaign period. Said materials and advertisements must also show his name and
image.
There is no blanket prohibition of the use of propaganda materials and
advertisements. During the campaign period, these may be used subject only to
reasonable limitations necessary and incidental to achieving the purpose of preventing
premature campaigning and promoting equality of opportunities among all candidates.
The provision, therefore, is not invalid on the ground of overbreadth.
WHEREFORE, the petition is DISMISSED and Section 32 of COMELEC Resolution
No. 6520 is declared valid and constitutional. The prayer for a Temporary Restraining
Order and/or a Writ of Preliminary Injunction is hereby DENIED. No costs.
SO ORDERED.
Davide, Jr., C.J., Quisumbing, Ynares-Santiago, Austria-Martinez, Corona, Carpio-
Morales, Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.
Puno, Panganiban, Sandoval-Gutierrez, and Carpio, JJ., on official leave.



[1]
Acebedo Optical v. CA, 329 SCRA 314 (2000).
[2]
207 SCRA 1 (1992).
[3]
Article X, Section 79 (b) of the Omnibus Election Code.
[4]
Article X, Section 80 of the Omnibus Election Code.
[5]
Philippine Association of Service Exporters v. Drilon, 163 SCRA 386 (1988).
[6]
Caleon v. Agus Development Corporation, 207 SCRA 748 (1992), citing Villanueva v. Castaeda, 154
SCRA 142 (1987).
[7]
Petition, Annex B-2, rollo, pp. 60-62.
[8]
Petition, Annex B-1, rollo, pp. 57-59.
[9]
Petition, Annex B, rollo, p. 56.
[10]
Petition, p. 14; rollo, p. 16.
[11]
Solicitor Generals Comment, p. 28; rollo, p. 107.
[12]
Adiong v. Comelec, 207 SCRA 712 (1992).

EN BANC


ROSALINDA A. PENERA,
Petitioner,
G.R. No. 181613


Present:

PUNO, C.J.,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
- versus - NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD, and
VILLARAMA, JR., JJ.


COMMISSION ON ELECTIONS Promulgated:
and EDGAR T. ANDANAR,
Respondents. November 25, 2009

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


R E S O L U T I O N

CARPIO, J .:

We grant Rosalinda A. Peneras (Penera) motion for reconsideration of this
Courts Decision of 11 September 2009 (Decision).

The assailed Decision dismissed Peneras petition and affirmed the
Resolution dated 30 July 2008 of the COMELEC En Banc as well as the
Resolution dated 24 July 2007 of the COMELEC Second Division. The Decision
disqualified Penera from running for the office of Mayor in Sta. Monica, Surigao
del Norte and declared that the Vice-Mayor should succeed Penera.

In support of her motion for reconsideration, Penera submits the following
arguments:

1. Penera was not yet a candidate at the time of the incident under Section 11
of RA 8436 as amended by Section 13 of RA 9369.
2. The petition for disqualification failed to submit convincing and substantial
evidence against Penera for violation of Section 80 of the Omnibus Election Code.
3. Penera never admitted the allegations of the petition for disqualification and
has consistently disputed the charge of premature campaigning.
4. The admission that Penera participated in a motorcade is not the same as
admitting she engaged in premature election campaigning.

Section 79(a) of the Omnibus Election Code defines a candidate as any
person aspiring for or seeking an elective public office, who has filed a certificate
of candidacy x x x. The second sentence, third paragraph, Section 15 of RA
8436, as amended by Section 13 of RA 9369, provides that [a]ny person who
files his certificate of candidacy within [the period for filing] shall only be
considered as a candidate at the start of the campaign period for which he
filed his certificate of candidacy. The immediately succeeding proviso in the
same third paragraph states that unlawful acts or omissions applicable to a
candidate shall take effect only upon the start of the aforesaid campaign
period. These two provisions determine the resolution of this case.

The Decision states that [w]hen the campaign period starts and [the person
who filed his certificate of candidacy] proceeds with his/her candidacy, his/her
intent turning into actuality, we can already consider his/her acts, after the filing
of his/her COC and prior to the campaign period, as the promotion of his/her
election as a candidate, hence, constituting premature campaigning, for which
he/she may be disqualified.
[1]


Under the Decision, a candidate may already be liable for premature
campaigning after the filing of the certificate of candidacy but even before the
start of the campaign period. From the filing of the certificate of candidacy,
even long before the start of the campaign period, the Decision considers the
partisan political acts of a person so filing a certificate of candidacy as the
promotion of his/her election as a candidate. Thus, such person can be
disqualified for premature campaigning for acts done before the start of the
campaign period. In short, the Decision considers a person who files a
certificate of candidacy already a candidate even before the start of the
campaign period.

The assailed Decision is contrary to the clear intent and letter of the law.

The Decision reverses Lanot v. COMELEC,
[2]
which held that a person who
files a certificate of candidacy is not a candidate until the start of the
campaign period. In Lanot, this Court explained:

Thus, the essential elements for violation of Section 80 of the Omnibus
Election Code are: (1) a person engages in an election campaign or partisan
political activity; (2) the act is designed to promote the election or defeat of a
particular candidate or candidates; (3) the act is done outside the campaign period.
The second element requires the existence of a candidate. Under Section 79(a), a
candidate is one who has filed a certificate of candidacy to an elective public
office. Unless one has filed his certificate of candidacy, he is not a candidate. The
third element requires that the campaign period has not started when the election
campaign or partisan political activity is committed.
Assuming that all candidates to a public office file their certificates of candidacy on
the last day, which under Section 75 of the Omnibus Election Code is the day before
the start of the campaign period, then no one can be prosecuted for violation of
Section 80 for acts done prior to such last day. Before such last day, there is no
particular candidate or candidates to campaign for or against. On the day
immediately after the last day of filing, the campaign period starts and Section 80
ceases to apply since Section 80 covers only acts done outside the campaign
period.
Thus, if all candidates file their certificates of candidacy on the last day, Section 80
may only apply to acts done on such last day, which is before the start of the
campaign period and after at least one candidate has filed his certificate of candidacy.
This is perhaps the reason why those running for elective public office usually file
their certificates of candidacy on the last day or close to the last day.
There is no dispute that Eusebios acts of election campaigning or partisan political
activities were committed outside of the campaign period. The only question is
whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a
candidate when he committed those acts before the start of the campaign period on
24 March 2004.
Section 11 of Republic Act No. 8436 (RA 8436) moved the deadline for the
filing of certificates of candidacy to 120 days before election day. Thus, the original
deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The
crucial question is: did this change in the deadline for filing the certificate of
candidacy make one who filed his certificate of candidacy before 2 January 2004
immediately liable for violation of Section 80 if he engaged in election campaign or
partisan political activities prior to the start of the campaign period on 24 March
2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. The Commission shall
prescribe the size and form of the official ballot which shall
contain the titles of the positions to be filled and/or the
propositions to be voted upon in an initiative, referendum or
plebiscite. Under each position, the names of candidates shall be
arranged alphabetically by surname and uniformly printed using
the same type size. A fixed space where the chairman of the Board
of Election Inspectors shall affix his/her signature to authenticate
the official ballot shall be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition
for registration/ manifestation to participate in the election shall not be later
than one hundred twenty (120) days before the elections: Provided, That, any
elective official, whether national or local, running for any office other than the one
which he/she is holding in a permanent capacity, except for president and vice-
president, shall be deemed resigned only upon the start of the campaign period
corresponding to the position for which he/she is running: Provided, further, That,
unlawful acts or omissions applicable to a candidate shall take effect upon the start of
the aforesaid campaign period: Provided, finally, That, for purposes of the May 11,
1998 elections, the deadline for filing of the certificate of candidacy for the positions
of President, Vice-President, Senators and candidates under the party-list system as
well as petitions for registration and/or manifestation to participate in the party-list
system shall be on February 9, 1998 while the deadline for the filing of certificate of
candidacy for other positions shall be on March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or
the Bangko Sentral ng Pilipinas at the price comparable with that of private printers
under proper security measures which the Commission shall adopt. The
Commission may contract the services of private printers upon certification by the
National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet the printing
requirements. Accredited political parties and deputized citizens arms of the
Commission may assign watchers in the printing, storage and distribution of official
ballots.
To prevent the use of fake ballots, the Commission through
the Committee shall ensure that the serial number on the ballot
stub shall be printed in magnetic ink that shall be easily detectable
by inexpensive hardware and shall be impossible to reproduce on a
photocopying machine, and that identification marks, magnetic
strips, bar codes and other technical and security markings, are
provided on the ballot.
The official ballots shall be printed and distributed to each
city/municipality at the rate of one (1) ballot for every registered
voter with a provision of additional four (4) ballots per precinct.
Under Section 11 of RA 8436, the only purpose for the early filing of
certificates of candidacy is to give ample time for the printing of official
ballots. This is clear from the following deliberations of the Bicameral
Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign
period, would it be the same[,] uniform for local and national
officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at
the present periods.
SENATOR GONZALES. But the moment one files a certificate of candidacy, hes
already a candidate, and there are many prohibited acts on the part of candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the campaign period has not yet
began (sic).
THE CHAIRMAN (REP. TANJUATCO). If we dont provide that the filing of the
certificate will not bring about ones being a candidate.
SENATOR GONZALES. If thats a fact, the law cannot change a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing
of the certificate of candidacy will not result in that official vacating his position,
we can also provide that insofar he is concerned, election period or his being a
candidate will not yet commence. Because here, the reason why we are doing an
early filing is to afford enough time to prepare this machine readable ballots.
So, with the manifestations from the Commission on Elections, Mr. Chairman, the
House Panel will withdraw its proposal and will agree to the 120-day period
provided in the Senate version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
x x x x
SENATOR GONZALES. How about prohibition against campaigning or doing
partisan acts which apply immediately upon being a candidate?
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this
provision is just to afford the Comelec enough time to print the ballots, this
provision does not intend to change the campaign periods as presently, or rather
election periods as presently fixed by existing law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other
prohibition.
THE CHAIRMAN (REP. TANJUATCO). Thats right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be
no conflict anymore because we are talking about the 120-day period before election
as the last day of filing a certificate of candidacy, election period starts 120 days also.
So that is election period already. But he will still not be considered as a candidate.
Thus, because of the early deadline of 2 January 2004 for purposes of
printing of official ballots, Eusebio filed his certificate of candidacy on 29
December 2003. Congress, however, never intended the filing of a certificate of
candidacy before 2 January 2004 to make the person filing to become
immediately a candidate for purposes other than the printing of ballots. This
legislative intent prevents the immediate application of Section 80 of the
Omnibus Election Code to those filing to meet the early deadline. The clear
intention of Congress was to preserve the election periods as x x x fixed by
existing law prior to RA 8436 and that one who files to meet the early deadline
will still not be considered as a candidate.
[3]
(Emphasis in the original)

Lanot was decided on the ground that one who files a certificate of
candidacy is not a candidate until the start of the campaign period. This ground
was based on the deliberations of the legislators who explained the intent of the
provisions of RA 8436, which laid the legal framework for an automated election
system. There was no express provision in the original RA 8436 stating that one
who files a certificate of candidacy is not a candidate until the start of the
campaign period.

When Congress amended RA 8436, Congress decided to expressly
incorporate the Lanot doctrine into law, realizing that Lanot merely relied on the
deliberations of Congress in holding that

The clear intention of Congress was to preserve the election periods as x x x
fixed by existing law prior to RA 8436 and that one who files to meet the early
deadline will still not be considered as a candidate.
[4]
(Emphasis supplied)

Congress wanted to insure that no person filing a certificate of candidacy
under the early deadline required by the automated election system would be
disqualified or penalized for any partisan political act done before the start of the
campaign period. Thus, in enacting RA 9369, Congress expressly wrote
the Lanot doctrine into the second sentence, third paragraph of the amended
Section 15 of RA 8436, thus:

x x x
For this purpose, the Commission shall set the deadline for the filing of certificate
of candidacy/petition for registration/manifestation to participate in the
election. Any person who files his certificate of candidacy within this
period shall only be considered as a candidate at the start of the campaign
period for which he filed his certificate of candidacy: Provided, That, unlawful
acts or omissions applicable to a candidate shall take effect only upon the start of the
aforesaid campaign period: Provided, finally, That any person holding a public
appointive office or position, including active members of the armed forces, and
officers and employees in government-owned or -controlled corporations, shall be
considered ipso facto resigned from his/her office and must vacate the same at the
start of the day of the filing of his/her certificate of candidacy. (Boldfacing and
underlining supplied)

Congress elevated the Lanot doctrine into a statute by specifically inserting it
as the second sentence of the third paragraph of the amended Section 15 of RA
8436, which cannot be annulled by this Court except on the sole ground of its
unconstitutionality. The Decision cannot reverse Lanot without repealing
this second sentence, because to reverse Lanot would mean repealing this second
sentence.

The assailed Decision, however, in reversing Lanot does not claim that
this second sentence or any portion of Section 15 of RA 8436, as amended by RA
9369, is unconstitutional. In fact, the Decision considers the entire Section 15
good law. Thus, the Decision is self-contradictory reversing Lanot but
maintaining the constitutionality of the second sentence, which embodies
the Lanot doctrine. In so doing, the Decision is irreconcilably in conflict with the
clear intent and letter of the second sentence, third paragraph, Section 15 of RA
8436, as amended by RA 9369.

In enacting RA 9369, Congress even further clarified the first proviso in the
third paragraph of Section 15 of RA 8436. The original provision in RA 8436
states



x x x Provided, further, That, unlawful acts or omissions applicable to a candidate
shall take effect upon the start of the aforesaid campaign period, x x x.

In RA 9369, Congress inserted the word only so that the first proviso now reads


x x x Provided, That, unlawful acts or omissions applicable to a candidate shall
take effect only upon the start of the aforesaid campaign period x x
x. (Emphasis supplied)


Thus, Congress not only reiterated but also strengthened its mandatory
directive that election offenses can be committed by a candidate only upon the
start of the campaign period. This clearly means that before the start of the
campaign period, such election offenses cannot be so committed.

When the applicable provisions of RA 8436, as amended by RA 9369, are
read together, these provisions of law do not consider Penera a candidate for
purposes other than the printing of ballots, until the start of the campaign
period. There is absolutely no room for any other interpretation.

We quote with approval the Dissenting Opinion of Justice Antonio T.
Carpio:

x x x The definition of a candidate in Section 79(a) of the Omnibus
Election Code should be read together with the amended Section 15 of RA
8436. A candidate refers to any person aspiring for or seeking an elective
public office, who has filed a certificate of candidacy by himself or through an
accredited political party, aggroupment or coalition of parties. However, it is no
longer enough to merely file a certificate of candidacy for a person to be
considered a candidate because any person who files his certificate of
candidacy within [the filing] period shall only be considered a candidate at the
start of the campaign period for which he filed his certificate of
candidacy. Any person may thus file a certificate of candidacy on any day
within the prescribed period for filing a certificate of candidacy yet that person
shall be considered a candidate, for purposes of determining ones possible
violations of election laws, only during the campaign period. Indeed, there is
no election campaign or partisan political activity designed to promote the
election or defeat of a particular candidate or candidates to public office simply
because there is no candidate to speak of prior to the start of the campaign
period. Therefore, despite the filing of her certificate of candidacy, the law does
not consider Penera a candidate at the time of the questioned motorcade which
was conducted a day before the start of the campaign period. x x x
The campaign period for local officials began on 30 March 2007 and ended on 12
May 2007. Penera filed her certificate of candidacy on 29 March 2007. Penera was
thus a candidate on 29 March 2009 only for purposes of printing the ballots. On 29
March 2007, the law still did not consider Penera a candidate for purposes other
than the printing of ballots. Acts committed by Penera prior to 30 March 2007, the
date when she became a candidate, even if constituting election campaigning or
partisan political activities, are not punishable under Section 80 of the Omnibus
Election Code. Such acts are within the realm of a citizens protected freedom of
expression. Acts committed by Penera within the campaign period are not covered
by Section 80 as Section 80 punishes only acts outside the campaign period.
[5]


The assailed Decision gives a specious reason in explaining away the
first proviso in the third paragraph, the amended Section 15 of RA 8436
that election offenses applicable to candidates take effect only upon the start of
the campaign period. The Decision states that:

x x x [T]he line in Section 15 of Republic Act No. 8436, as amended,
which provides that any unlawful act or omission applicable to a candidate
shall take effect only upon the start of the campaign period, does not mean that
the acts constituting premature campaigning can only be committed, for which the
offender may be disqualified, during the campaign period. Contrary to the
pronouncement in the dissent, nowhere in said proviso was it stated that
campaigning before the start of the campaign period is lawful, such that the
offender may freely carry out the same with impunity.
As previously established, a person, after filing his/her COC but prior to his/her
becoming a candidate (thus, prior to the start of the campaign period), can already
commit the acts described under Section 79(b) of the Omnibus Election Code as
election campaign or partisan political activity, However, only after said person
officially becomes a candidate, at the beginning of the campaign period, can said
acts be given effect as premature campaigning under Section 80 of the Omnibus
Election Code. Only after said person officially becomes a candidate, at the start
of the campaign period, can his/her disqualification be sought for acts
constituting premature campaigning. Obviously, it is only at the start of the
campaign period, when the person officially becomes a candidate, that the undue and
iniquitous advantages of his/her prior acts, constituting premature campaigning, shall
accrue to his/her benefit. Compared to the other candidates who are only about to
begin their election campaign, a candidate who had previously engaged in premature
campaigning already enjoys an unfair headstart in promoting his/her
candidacy.
[6]
(Emphasis supplied)

It is a basic principle of law that any act is lawful unless expressly
declared unlawful by law. This is specially true to expression or speech, which
Congress cannot outlaw except on very narrow grounds involving clear, present
and imminent danger to the State. The mere fact that the law does not declare an
act unlawful ipso facto means that the act is lawful. Thus, there is no need for
Congress to declare in Section 15 of RA 8436, as amended by RA 9369, that
political partisan activities before the start of the campaign period are lawful. It is
sufficient for Congress to state that any unlawful act or omission applicable to
a candidate shall take effect only upon the start of the campaign period. The
only inescapable and logical result is that the same acts, if done before the start of
the campaign period, are lawful.

In laymans language, this means that a candidate is liable for an election
offense only for acts done during the campaign period, not before. The law is
clear as daylight any election offense that may be committed by a candidate
under any election law cannot be committed before the start of the campaign
period. In ruling that Penera is liable for premature campaigning for partisan
political acts before the start of the campaigning, the assailed Decision ignores the
clear and express provision of the law.

The Decision rationalizes that a candidate who commits premature
campaigning can be disqualified or prosecuted only after the start of the campaign
period. This is not what the law says. What the law says is any unlawful act or
omission applicable to a candidate shall take effect only upon the start of the
campaign period. The plain meaning of this provision is that the effective date
when partisan political acts become unlawful as to a candidate is when the
campaign period starts. Before the start of the campaign period, the same partisan
political acts are lawful.

The law does not state, as the assailed Decision asserts, that partisan political
acts done by a candidate before the campaign period are unlawful, but may be
prosecuted only upon the start of the campaign period. Neither does the law state
that partisan political acts done by a candidate before the campaign period
are temporarily lawful, but becomes unlawful upon the start of the campaign
period. This is clearly not the language of the law. Besides, such a law as
envisioned in the Decision, which defines a criminal act and curtails freedom of
expression and speech, would be void for vagueness.

Congress has laid down the law a candidate is liable for election offenses
only upon the start of the campaign period. This Court has no power to ignore the
clear and express mandate of the law that any person who files his certificate of
candidacy within [the filing] period shall only be considered a candidate at the
start of the campaign period for which he filed his certificate of
candidacy. Neither can this Court turn a blind eye to the express and clear
language of the law that any unlawful act or omission applicable to a
candidate shall take effect only upon the start of the campaign period.

The forum for examining the wisdom of the law, and enacting remedial
measures, is not this Court but the Legislature. This Court has no recourse but to
apply a law that is as clear, concise and express as the second sentence, and its
immediately succeeding proviso, as written in the third paragraph of Section 15 of
RA 8436, as amended by RA 9369.

WHEREFORE, we GRANT petitioner Rosalinda A. Peneras Motion for
Reconsideration. We SET ASIDE the Decision of this Court in G.R. No. 181613
promulgated on 11 September 2009, as well as the Resolutions dated 24 July 2007
and 30 January 2008 of the COMELEC Second Division and the COMELEC En
Banc, respectively, in SPA No. 07-224. Rosalinda A. Penera shall continue as
Mayor of Sta. Monica, Surigao del Norte.

SO ORDERED.



ANTONIO T. CARPIO
Associate Justice


WE CONCUR:



REYNATO S. PUNO
Chief Justice




RENATO C. CORONA
Associate Justice




CONCHITA CARPIO MORALES
Associate Justice


MINITA V. CHICO-NAZARIO
Associate Justice





PRESBITERO J. VELASCO, JR.
Associate Justice


ANTONIO EDUARDO B. NACHURA
Associate Justice


TERESITA J. LEONARDO-DE CASTRO
Associate Justice






ARTURO D. BRION
Associate Justice




DIOSDADO M. PERALTA
Associate Justice




LUCAS P. BERSAMIN
Associate Justice



MARIANO C. DEL CASTILLO
Associate Justice

ROBERTO A. ABAD
Associate Justice



MARTIN S. VILLARAMA, JR.
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Resolution had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.




REYNATO S. PUNO
Chief Justice








[1]
Decision, p. 23 (Boldfacing and underscoring supplied).
[2]
G.R. No. 164858, 16 November 2006, 507 SCRA 114.
[3]
Id. at 147-152.
[4]
Id. at 152.
[5]
Dissenting Opinion of Justice Antonio T. Carpio, pp. 4-6.
[6]
Decision, p. 24.









lawphil

Today is Wednesday, July 17, 2013

Search




Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 164858 November 16, 2006
HENRY P. LANOT, substituted by MARIO S. RAYMUNDO, Petitioner,
CHARMIE Q. BENAVIDES, Petitioner-Intervenor,
vs.
COMMISSION ON ELECTIONS and VICENTE P. EUSEBIO, Respondents.
D E C I S I O N
CARPIO, J .:
The Case
This is a petition for certiorari
1
assailing the Resolution dated 20 August 2004,
2
the Resolution dated 21 May 2004
3
of the
Commission on Elections (COMELEC) En Banc, and the Advisory dated 10 May 2004
4
of COMELEC Chairman Benjamin S.
Abalos ("Chairman Abalos") in SPA No. 04-288.
The 10 May 2004 Advisory of Chairman Abalos enjoined Acting National Capital Region (NCR) Regional Director Esmeralda
Amora-Ladra ("Director Ladra") from implementing the COMELEC First Divisions 5 May 2004 Resolution.
5
The 5 May 2004
Resolution ordered (1) the disqualification of respondent Vicente P. Eusebio ("Eusebio") as a candidate for Pasig City Mayor in
the 10 May 2004 elections, (2) the deletion of Eusebios name from the certified list of candidates for Pasig City Mayor, (3) the
consideration of votes for Eusebio as stray, (4) the non-inclusion of votes for Eusebio in the canvass, and (5) the filing of the
necessary information against Eusebio by the COMELEC Law Department.
The 21 May 2004 Order of the COMELEC En Banc set aside the 11 May 2004 Order of the COMELEC En Banc
6
and directed the
Pasig City Board of Canvassers to proclaim the winning candidate for Pasig City Mayor without prejudice to the final outcome of
Eusebios disqualification case. The 11 May 2004 Order suspended the proclamation of Eusebio in the event that he would
receive the winning number of votes.
Finally, the 20 August 2004 COMELEC En Banc resolution set aside the 5 May 2004 Resolution of the COMELEC First
Division
7
and nullified the corresponding order. The COMELEC En Banc referred the case to the COMELEC Law Department to
determine whether Eusebio actually committed the acts subject of the petition for disqualification.
The Facts
On 19 March 2004, Henry P. Lanot ("Lanot"), Vener Obispo ("Obispo"), Roberto Peralta ("Peralta"), Reynaldo dela Paz ("dela
Paz"), Edilberto Yamat ("Yamat"), and Ram Alan Cruz ("Cruz") (collectively, "petitioners"), filed a petition for
disqualification
8
under Sections 68 and 80 of the Omnibus Election Code against Eusebio before the COMELEC. Lanot, Obispo,
and Eusebio were candidates for Pasig City Mayor, while Peralta, dela Paz, Yamat, and Cruz were candidates for Pasig City
Councilor in the 10 May 2004 elections. The case was docketed as SPA (NCR-RED) No. C04-008.
Petitioners alleged that Eusebio engaged in an election campaign in various forms on various occasions outside of the
designated campaign period, such as (1) addressing a large group of people during a medical mission sponsored by the Pasig
City government; (2) uttering defamatory statements against Lanot; (3) causing the publication of a press release predicting his
victory; (4) installing billboards, streamers, posters, and stickers printed with his surname across Pasig City; and (5) distributing
shoes to schoolchildren in Pasig public schools to induce their parents to vote for him.
In his Answer filed on 29 March 2004,
9
Eusebio denied petitioners allegations and branded the petition as a harassment case.
Eusebio further stated that petitioners evidence are merely fabricated.
Director Ladra conducted hearings on 2, 5 and 7 April 2004 where she received the parties documentary and testimonial
evidence. Petitioners submitted their memorandum
10
on 15 April 2004, while Eusebio submitted his memorandum
11
on 16 April
2004.
The Ruling of the Regional Director
On 4 May 2004, Director Ladra submitted her findings and recommendations to the COMELEC. Director Ladra recommended
that:
WHEREFORE, in view of the foregoing, undersigned respectfully recommends that the instant petition beGRANTED.
Consequently, pursuant to Section 68 (a) and (e) of the Omnibus Election Code, respondent VICENTE P. EUSEBIO shall
be DISQUALIFIED to run for the position of Mayor, Pasig City for violation of Section 80 of the Omnibus Election Code.
Further, undersigned respectfully recommends that the instant case be referred to the Law Department for it to conduct a
preliminary investigation on the possible violation by the respondent of Sec. 261 (a) of the Omnibus Election Code.
12

The Ruling of the COMELEC
In a resolution dated 5 May 2004, or five days before the elections, the COMELEC First Division adopted the findings and
recommendation of Director Ladra. The dispositive portion of the resolution read:
WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) RESOLVED as it hereby RESOLVES to ORDER:
1. the disqualification of respondent VICENTE P. EUSEBIO from being a candidate for mayor of Pasig City in the
May 10, 2004 elections;
2. the Election Officers of District I and District II of Pasig City to DELETE and CANCEL the name of
respondent VICENTE P. EUSEBIO from the certified list of candidates for the City Offices of Pasig City for the
May 10, 2004 elections;
3. the Board of Election Inspectors of all the precincts comprising the City of Pasig not to count the votes cast for
respondent VICENTE EUSEBIO, the same being cast for a disqualified candidate and therefore must be
considered stray;
4. the City Board of Canvassers of Pasig City not to canvass the votes erroneously cast for the disqualified
candidate respondent VICENTE P. EUSEBIO, in the event that such votes were recorded in the election returns[;]
5. the Regional Director of NCR, and the Election Officers of Pasig City to immediately implement the foregoing
directives[;]
6. the Law Department through its Director IV, Atty. ALIODEN DALAIG to file the necessary information against
Vicente P. Eusebio before the appropriate court.
This Resolution is immediately executory unless restrained by the Commission En Banc.
13
(Emphasis in the original)
In a Very Urgent Advisory
14
dated 8 May 2004, or two days before the elections, Chairman Abalos informed the following election
officers of the resolution of the COMELEC First Division: Director Ladra; Atty. Romeo Alcazar, Acting Election Officer of the First
District of Pasig City; Ms. Marina Gerona, Acting Election Officer of the Second District of Pasig City; and all Chairmen and
Members of the Board of Election Inspectors and City Board of Canvassers of Pasig City (collectively, "pertinent election
officers"). Director Ladra repeated the dispositive portion of the 5 May 2004 resolution in a Memorandum
15
which she issued the
next day. On 9 May 2004, Eusebio filed a motion for reconsideration
16
of the resolution of the COMELEC First Division.
On election day itself, Chairman Abalos issued the first of the three questioned COMELEC issuances. In a memorandum,
Chairman Abalos enjoined Director Ladra from implementing the COMELEC First Divisions 5 May 2004 resolution due to
Eusebios motion for reconsideration. The 10 May 2004 memorandum stated:
Considering the pendency of a Motion for Reconsideration timely filed by Respondent, Vicente P. Eusebio[,] with the
Commission En Banc, you are hereby ENJOINED from implementing the Resolution promulgated on May 5, 2004, in the x x x
case until further orders from the Commission En Banc.
17
(Emphasis in the original)
On 11 May 2004, the day after the elections, petitioners Lanot, Peralta, dela Paz, Yamat, and Cruz filed before the COMELEC
En Banc a motion to suspend the counting and canvassing of votes and the proclamation of the winning mayoral candidate for
Pasig City.
18
Without waiting for Eusebios opposition, the COMELEC En Banc partially denied the motion on the same day. The
dispositive portion of the Order declared:
WHEREFORE, in view of the foregoing, the Commission En Banc DENIES the motion for suspension of the counting of votes
and the canvassing of votes. However, in order not to render moot and academic the issues for final disposition by the En Banc
and considering that on the basis of the Resolution of the FIRST DIVISION, the evidence of respondents guilt is strong, the
Commission En Banc hereby ORDERS to SUSPEND, UNTIL FURTHER ORDERS OF THE COMMISSION, the proclamation of
respondent in the event he receives the winning number of votes.
19
(Emphasis in the original)
On 12 May 2004, Eusebio filed his opposition to petitioners motion.
On 21 May 2004, the COMELEC En Banc issued the second questioned issuance. The order quoted from the motion for
advisory opinion of the Pasig City Board of Canvassers which reported that 98% of the total returns of Pasig City had been
canvassed and that there were only 32 uncanvassed returns involving 6,225 registered voters. Eusebio had 119,693 votes while
Lanot had 108,941 votes. Thus, the remaining returns would not affect Eusebios lead over Lanot. The COMELEC En Banc
stated its "established policy" to "expedite the canvass of votes and proclamation of winning candidates to ease the post election
tension and without prejudice to [its] action in [the] x x x case"
20
and resolved to declare Eusebio as Pasig City Mayor. The
dispositive portion of the 21 May 2004 Order read:
WHEREFORE, this Commission RESOLVED, as it hereby RESOLVES, to LIFT AND SET ASIDE the order suspending the
proclamation of the respondent.
FURTHER, the City Board of Canvassers is DIRECTED to complete [the] canvass and immediately proceed with the
proclamation of the winning candidate for Mayor of Pasig City without prejudice to the final outcome of the case entitled,
"Henry P. Lanot, et al., vs. Vicente Eusebio[, "] docketed as SPA No. 04-288.
21
(Emphasis in the original)
Eusebio was proclaimed as Pasig City Mayor on 23 May 2004 based on the 21 May 2004 Order.1wphi 1 On 25 June and 6 July 2004,
the COMELEC En Banc conducted hearings on Eusebios motion for reconsideration of the 5 May 2004 COMELEC First Division
resolution. On 6 August 2004, Lanot filed a motion to annul Eusebios proclamation and to order his proclamation instead.
22

On 20 August 2004, the COMELEC En Banc promulgated the third questioned issuance. The COMELEC En Banc invoked
Section 1 of COMELEC Resolution No. 2050 ("Resolution 2050") and this Courts rulings in Albaa v. COMELEC,
23
Lonzanida v.
COMELEC,
24
and Sunga v. COMELEC
25
in justifying the annulment of the order to disqualify Eusebio and the referral of the case
to the Law Department for preliminary investigation. The dispositive portion stated:
WHEREFORE, PREMISES CONSIDERED, the resolution promulgated by the First Division dated 8 May 2004 on the above-
captioned case, affirming the recommendation of the Regional Director (NCR) to disqualify herein respondent, is hereby SET
ASIDE, and the corresponding ORDER issued thereunder, ANNULLED. Accordingly, this case is referred to the Law Department
for investigation to finally determine [whether] the acts complained of were in fact committed by respondent Eusebio.
26
(Emphasis
in the original)
Hence, this petition.
The Issues
Lanot alleged that as the COMELECs issuances are not supported by substantial evidence and are contrary to law and settled
jurisprudence, the COMELEC committed grave abuse of discretion amounting to lack of or excess of jurisdiction. Lanot raised the
following issues before this Court:
A. WHETHER PUBLIC RESPONDENT COMELEC, IN ISSUING [ITS] RESOLUTION DATED AUGUST 20, 2004, ACTED WITH
GRAVE ABUSE OF DISCRETION OR LACK OR IN EXCESS OF JURISDICTION
1. by setting aside the Resolution of Disqualification promulgated by its First Division on May 5, 2004
affirming the recommendation of the Regional Election Director (NCR) to disqualify Respondent, and by
annulling the order issued thereunder,
a) erroneously, whimsically and maliciously ADOPTED and APPLIED Sections 1 and 2 of Rule
2050 to this case,
b) capriciously VIOLATED COMELEC Resolution 6452 and Sec. 6, R.A. 6646,
c) erroneously, whimsically and capriciously ARROGATED unto themselves a quasi-judicial
legislation, and
d) erroneously and maliciously MISAPPLIED the Albaa and Sunga cases to the case at bar;
2. by referring the case to the Law Department for investigation, it illegally, erroneously and maliciously
DISMISSED the electoral aspect of the case and whimsically VIOLATED Resolution 6452 and Section 6
of RA 6646;
3. by disregarding the Order of disqualification, it erroneously and whimsically IGNORED and
DISREGARDED the inchoate right of petitioner as the winning party.
B. WHETHER PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION OR IN EXCESS OR LACK OF
JURISDICTION IN ISSUING ITS RESOLUTION DATED MAY 21, 2004
1. by lifting and setting aside the Order of suspension of proclamation by winning candidate issued on
May 11, 2004, it erroneously and intentionally and whimsically DISREGARDED the strong evidence of
guilt of Respondent to warrant the suspension of his proclamation and erroneously and capriciously
VIOLATED Resolution of May 11, 2004.
C. WHETHER CHAIRMAN BENJAMIN ABALOS OF THE COMELEC ACTED WITH GRAVE ABUSE OF POWER, AUTHORITY
OR DISCRETION OR LACK OR IN EXCESS OF JURISDICTION
1. by unilaterally enjoining the implementation of the Order of Respondents disqualification despite the
condition therein that it could only be restrained by the Commission En Banc, and whether or not he
illegally, erroneously and blatantly whimsically grabbed the exclusive adjudicatory power of the
Commission En Banc.
D. WHETHER RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN CAPRICIOUSLY DISREGARDING THE RESOLUTION OF MAY 5, 2004 AS ALREADY FINAL
AND EXECUTED AND IN FAILING TO ORDER THE PROCLAMATION OF PETITIONER.
E. a) WHETHER THERE ARE PREPONDERANT EVIDENCE TO WARRANT RESPONDENT EUSEBIOS
DISQUALIFICATION.
b) WHETHER RESPONDENT EUSEBIO SHOULD BE DEEMED DISQUALIFIED WITH FOUR (4)
AFFIRMATIVE VOTES OF COMMISSIONERS, TWO (2) VOTES FROM COMMISSIONERS BORRA
AND GARCILLANO WHO VOTED FOR THE DISQUALIFICATION IN THE MAY 5, 2004
RESOLUTION (ANNEX "B") AND TWO (2) VOTES FROM COMMISSIONERS TUAZON, JR. AND
SADAIN WHO VOTED TO DISQUALIFY HIM IN THEIR DISSENTING OPINION (ANNEX "A-1")
SHOULD REFERRAL OF THE CASE TO THE LAW DEPARTMENT BY RESPONDENT COMELEC BE
DECLARED A PATENT NULLITY.
F. IN CASE OF DISQUALIFICATION OF RESPONDENT EUSEBIO, WHETHER PETITIONER LANOT CAN BE PROCLAIMED
AND ALLOWED TO SIT AS MAYOR-ELECT, AND WHETHER THE DOCTRINES IN TOPACIO, CODILLA, JR., LABO AND
OTHERS APPLY IN THIS CASE.
27

The Ruling of the Court
The petition has no merit.
Parties to the Present Petition
On 13 April 2005, during the pendency of this case, an unidentified person shot and killed Lanot in Pasig City. It seemed that, like
an endangered specie, the disqualification case would be extinguished by Lanots death. However, on 27 April 2005, Lanots
counsel manifested, over Eusebios objections, that Mario S. Raymundo ("Raymundo"), a registered voter and former Mayor of
Pasig City, is Lanots substitute in this case. Also, on 25 August 2005, Charmie Q. Benavides ("Benavides"), a Pasig City
mayoral candidate and the third placer in the 10 May 2004 elections, filed a petition-in-intervention. Benavides asked whether
she could be proclaimed Pasig City Mayor because she is the surviving qualified candidate with the highest number of votes
among the remaining candidates.
The law and the COMELEC rules have clear pronouncements that the electoral aspect of a disqualification case is not rendered
inutile by the death of petitioner, provided that there is a proper substitution or intervention of parties while there is a pending
case. On Raymundos substitution, any citizen of voting age is competent to continue the action in Lanots stead.
28
On
Benavides intervention, Section 6 of Republic Act No. 6646, or the Electoral Reforms Law of 1987 ("Electoral Reforms Law of
1987"), allows intervention in proceedings for disqualification even after elections if no final judgment has been rendered.
Although Eusebio was already proclaimed as Pasig City Mayor, Benavides could still intervene, as there was still no final
judgment in the proceedings for disqualification.
29

The case for disqualification exists, and survives, the election and proclamation of the winning candidate because an outright
dismissal will unduly reward the challenged candidate and may even encourage him to employ delaying tactics to impede the
resolution of the disqualification case until after he has been proclaimed.
30
The exception to the rule of retention of jurisdiction
after proclamation applies when the challenged candidate becomes a member of the House of Representatives or of the Senate,
where the appropriate electoral tribunal would have jurisdiction. There is no law or jurisprudence which says that intervention or
substitution may only be done prior to the proclamation of the winning candidate. A substitution is not barred by prescription
because the action was filed on time by the person who died and who is being substituted. The same rationale applies to a
petition-in-intervention.
COMELECs Grave Abuse of Discretion
Propriety of Including Eusebios Name in the Pasig City Mayoral Candidates and of the Counting of Votes and Canvassing of
Election Returns
In its 5 May 2004 resolution, the COMELEC First Division ordered the pertinent election officials to delete and cancel Eusebios
name from the certified list of Pasig City mayoral candidates, not to count votes cast in Eusebios favor, and not to include votes
cast in Eusebios favor in the canvass of election returns. Eusebio filed a motion for reconsideration of the resolution on 9 May
2004. Hence, COMELEC Chairman Abalos issued a memorandum on 10 May 2004 which enjoined the pertinent election officials
from implementing the 5 May 2004 resolution. In a Resolution dated 11 May 2004, the COMELEC En Banc subsequently ratified
and adopted Chairman Abalos 10 May 2004 memorandum when it denied Lanots motion to suspend the counting of votes and
canvassing of election returns.
Lanot claims that Chairman Abalos whimsically grabbed the adjudicatory power of the COMELEC En Banc when he issued the
10 May 2004 memorandum. Lanot asserts that the last sentence in the dispositive portion of the COMELEC First Divisions 5
May 2004 Resolution, "[t]his Resolution is immediately executory unless restrained by the Commission En Banc," should have
prevented Chairman Abalos from acting on his own.
Lanots claim has no basis, especially in light of the 11 May 2004 Resolution of the COMELEC En Banc. The COMELEC En
Bancs explanation is apt:
Suspension of these proceedings is tantamount to an implementation of the Resolution of the FIRST DIVISION which had not yet
become final and executory by reason of the timely filing of a Motion for Reconsideration thereof. A disposition that has not yet
attained finality cannot be implemented even through indirect means.
31

Moreover, Chairman Abalos 10 May 2004 memorandum is merely an advisory required by the circumstances at the time.
Eusebio filed a motion for reconsideration on 9 May 2004, and there was not enough time to resolve the motion for
reconsideration before the elections. Therefore, Eusebio was not yet disqualified by final judgment at the time of the elections.
Section 6 of the Electoral Reforms Law of 1987 provides that "[a] 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." Under Section 13 of the COMELEC Rules of Procedure, a decision or resolution of a
Division in a special action becomes final and executory after the lapse of fifteen days following its promulgation while a decision
or resolution of the COMELEC En Banc becomes final and executory after five days from its promulgation unless restrained by
this Court.
Propriety of the Lifting of the Suspension of Eusebios Proclamation
In the same 11 May 2004 Resolution, the COMELEC En Banc ordered the suspension of Eusebios proclamation in the event he
would receive the winning number of votes. Ten days later, the COMELEC En Banc set aside the 11 May 2004 order and
directed the Pasig City Board of Canvassers to proclaim Eusebio as the winning candidate for Pasig City Mayor. The COMELEC
relied on Resolutions 7128 and 7129
32
to justify the counting of Eusebios votes and quoted from the Resolutions as follows:
Resolution No. 7128 -
x x x x
NOW THEREFORE, the Commission RESOLVED, as it hereby RESOLVES, to adopt certain policies and to direct all Board of
Canvassers, as follows:
1. to speed up its canvass and proclamation of all winning candidates except under the following circumstances:
a. issuance of an order or resolution suspending the proclamation;
b. valid appeal[s] from the rulings of the board in cases where appeal is allowed and the subject appeal will affect
the results of the elections;
x x x x.
Resolution No. 7129
x x x x
NOW THEREFORE, the Commission on Elections, by virtue of the powers vested in it by the Constitution, the Omnibus Election
Code and other elections laws, has RESOLVED, as it hereby RESOLVES, to refrain from granting motions and petitions seeking
to postpone proclamations by the Board of Canvassers and other pleadings with similar purpose unless they are grounded on
compelling reasons, supported by convincing evidence and/or violative of the canvassing procedure outlined in Resolution No.
6669.
We agree with Eusebio that the COMELEC En Banc did not commit grave abuse of discretion in issuing its 21 May 2004 order.
The COMELEC has the discretion to suspend the proclamation of the winning candidate during the pendency of a disqualification
case when evidence of his guilt is strong.
33
However, an order suspending the proclamation of a winning candidate against whom
a disqualification case is filed is merely provisional in nature and can be lifted when warranted by the evidence.
34

Propriety of the Dismissal of the
Disqualification Case and of the
Referral to the COMELEC
Law Department
Lanot filed the petition for disqualification on 19 March 2004, a little less than two months before the 10 May 2004 elections.
Director Ladra conducted hearings on the petition for disqualification on 2, 5 and 7 April 2004. Director Ladra submitted her
findings and recommendations to the COMELEC on 4 May 2004. The COMELEC First Division issued a resolution adopting
Director Ladras recommendations on 5 May 2004. Chairman Abalos informed the pertinent election officers of the COMELEC
First Divisions resolution through an Advisory dated 8 May 2004. Eusebio filed a Motion for Reconsideration on 9 May 2004.
Chairman Abalos issued a memorandum to Director Ladra on election day, 10 May 2004, and enjoined her from implementing
the 5 May 2004 COMELEC First Division resolution. The petition for disqualification was not yet finally resolved at the time of the
elections. Eusebios votes were counted and canvassed, after which Eusebio was proclaimed as the winning candidate for Pasig
City Mayor. On 20 August 2004, the COMELEC En Banc set aside the COMELEC First Divisions order and referred the case to
the COMELEC Law Department.
In its 20 August 2004 resolution, the COMELEC En Banc relied heavily on the timing of the filing of the petition. The COMELEC
En Banc invoked Section 1 of Resolution No. 2050, which states:
1. Any complaint for the disqualification of a duly registered candidate based upon any of the grounds specifically enumerated
under Section 68 of the Omnibus Election Code, filed directly with the Commission before an election in which the respondent is
a candidate, shall be inquired into by the Commission for the purpose of determining whether the acts complained of have in fact
been committed. Where the inquiry by the Commission results in a finding before election, that the respondent candidate did in
fact commit the acts complained, the Commission shall order the disqualification of the respondent candidate from continuing as
such candidate.
In case such complaint was not resolved before the election, the Commission may motu proprio, or on motion of any of
the parties, refer the complaint to the Law Department of the Commission as the instrument of the latter in the exercise
of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the election
laws. Such recourse may be availed of irrespective of whether the respondent has been elected or has lost in the
election. (Emphasis added)
The COMELEC also quoted from Sunga v. COMELEC to justify its referral of the disqualification case to its Law Department.
x x x We discern nothing in COMELEC Resolution No. 2050 declaring, ordering or directing the dismissal of a disqualification
case filed before the election but which remained unresolved after the election. What the Resolution mandates in such a case is
for the Commission to refer the complaint to its Law Department for investigation to determine whether the acts complained of
have in fact been committed by the candidate sought to be disqualified. The findings of the Law Department then become the
basis for disqualifying the erring candidate. This is totally different from the other two situations contemplated by Resolution No.
2050, i.e., a disqualification case filed after the election but before the proclamation of winners and that filed after the election
and the proclamation of winners, wherein it was specifically directed by the same Resolution to be dismissed as a disqualification
case.
35

For his part, Eusebio asserts that the COMELEC has the prerogative to refer the disqualification case to its Law Department.
Thus, no grave abuse of discretion can be imputed to the COMELEC. Moreover, the pendency of a case before the Law
Department for purposes of preliminary investigation should be considered as continuation of the COMELECs deliberations.
However, contrary to the COMELEC En Bancs reliance on Resolution No. 2050 in its 20 August 2004 resolution, the prevailing
law on the matter is Section 6 of the Electoral Reforms Law of 1987. Any rule or action by the COMELEC should be in
accordance with the prevailing law. Section 6 of the Electoral Reforms Law of 1987 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)
Moreover, this Courts ruling in Sunga was further explained in Bagatsing v. COMELEC,
36
thus:
The COMELEC in Sunga obviously misapplied Resolution No. 2050 in dismissing the disqualification case therein simply
because it remained unresolved before the election and, in lieu thereof, referring it to its Law Department for possible criminal
prosecution of the respondent for violation of the election laws. Notably, there is nothing in paragraph 1 of Resolution No. 2050
which directs the dismissal of the disqualification case not resolved before the election. It says the COMELEC "may motu
prop[r]io or on motion of any of the parties, refer the complaint to the Law Department of the Commission as an instrument of the
latter in the exercise of its exclusive power to conduct a preliminary investigation of all cases involving criminal infractions of the
election laws." The referral to the Law Department is discretionary on the part of the COMELEC and in no way may it be
interpreted that the COMELEC will dismiss the disqualification case or will no longer continue with the hearing of the same. The
reason for this is that a disqualification case may have two (2) aspects, the administrative, which requires only a preponderance
of evidence to prove disqualification, and the criminal, which necessitates proof beyond reasonable doubt to convict. Where in
the opinion of the COMELEC, the acts which are grounds for disqualification also constitute a criminal offense or offenses,
referral of the case to the Law Department is proper.
x x x x
It bears stressing that the Court in Sunga recognized the difference between a disqualification case filed before and after an
election when, as earlier mentioned, it stated that the referral of the complaint for disqualification where the case is filed before
election "is totally different from the other two situations contemplated by Resolution No. 2050, i.e., a disqualification case filed
after the election but before the proclamation of winners and that filed after the election and the proclamation of winners, wherein
it was specifically directed by the same Resolution to be dismissed as a disqualification case."
Indeed, the 20 August 2004 resolution of the COMELEC En Banc betrayed its misunderstanding of the two aspects of a
disqualification case. The electoral aspect of a disqualification case determines whether the offender should be disqualified from
being a candidate or from holding office. Proceedings are summary in character and require only clear preponderance of
evidence. An erring candidate may be disqualified even without prior determination of probable cause in a preliminary
investigation. The electoral aspect may proceed independently of the criminal aspect, and vice-versa.
The criminal aspect of a disqualification case determines whether there is probable cause to charge a candidate for an election
offense. The prosecutor is the COMELEC, through its Law Department, which determines whether probable cause exists.
37
If
there is probable cause, the COMELEC, through its Law Department, files the criminal information before the proper court.
Proceedings before the proper court demand a full-blown hearing and require proof beyond reasonable doubt to convict.
38
A
criminal conviction shall result in the disqualification of the offender, which may even include disqualification from holding a future
public office.
39

The two aspects account for the variance of the rules on disposition and resolution of disqualification cases filed before or after
an election. When the disqualification case is filed before the elections, the question of disqualification is raised before the voting
public. If the candidate is disqualified after the election, those who voted for him assume the risk that their votes may be declared
stray or invalid. There is no such risk if the petition is filed after the elections.
40
The COMELEC En Banc erred when it ignored the
electoral aspect of the disqualification case by setting aside the COMELEC First Divisions resolution and referring the entire
case to the COMELEC Law Department for the criminal aspect.
Moreover, the COMELEC En Bancs act and Eusebios assertions lose sight of the provisions of Resolution No. 6452
("Resolution 6452"), "Rules Delegating to COMELEC Field Officials the Hearing and Reception of Evidence of Disqualification
Cases Filed in Connection with the May 10, 2004 National and Local Elections; Motu ProprioActions and Disposition of
Disqualification Cases," promulgated on 10 December 2003. The pertinent portions of Resolution 6452 provide:
Section 1. Delegation of reception of evidence. The Commission hereby designates its field officials who are members of the
Philippine Bar to hear and receive evidence in the following petitions:
x x x
c. Petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code and disqualify a candidate
for lack of qualifications or possessing same grounds for disqualification;
x x x
Sec. 2. Suspension of the Comelec Rules of Procedure. In the interest of justice and in order to attain speedy disposition of
cases, the Comelec Rules of Procedure or any portion thereof inconsistent herewith is hereby suspended.
Sec. 3. Where to file petitions. The petitions shall be filed with the following offices of the Commission:
x x x
b. For x x x local positions including highly-urbanized cities, in the National Capital Region, with the Regional
Election Director of said region;
x x x
PROVIDED, in cases of highly-urbanized cities the filing of petitions for disqualification shall be with the Office of the Regional
Election Directors. x x x
x x x x
The Regional Election Directors concerned shall hear and receive evidence strictly in accordance with the procedure and
timeliness herein provided.
Sec. 5. Procedure in filing petitions. For purposes of the preceding section, the following procedure shall be observed:
x x x x
C. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SEC. 68 OF THE OMNIBUS ELECTION CODE AND PETITION
TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR DISQUALIFICATION
1. The verified petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code x x x may be
filed any day after the last day [of] filing of certificates of candidacy but not later than the date of proclamation.
2. The petition to disqualify a candidate pursuant to Sec. 68 of the Omnibus Election Code shall be filed in ten
(10) legible copies with the concerned office mentioned in Sec. 3 personally or through a duly authorized
representative by any citizen of voting age, or duly registered political party, organization or coalition of political
parties against any candidate who, in an action or protest in which he is a party, is declared by final decision of a
competent court guilty of, or found by the Commission of:
2.a having given money or other material consideration to influence, induce or corrupt the voters or public
officials performing electoral functions; or
x x x
2.d having solicited, received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104
of the Omnibus Elections Code; or
2.e having violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v and cc sub-paragraph 6
of the Omnibus Election Code, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office.
x x x x
Indeed, what the COMELEC did in its 20 August 2004 resolution was contrary to "the interest of justice and x x x speedy
disposition of cases." Resolution No. 2050 referring the electoral aspect to the Law Department is procedurally inconsistent with
Resolution 6452 delegating reception of evidence of the electoral aspect to the Regional Election Director. The investigation by
the Law Department under Resolution No. 2050 produces the same result as the investigation under Resolution 6452 by the
Regional Election Director. Commissioner Tuasons dissent underscored the inconsistency between the avowed purpose of
Resolution 6452 and the COMELEC En Bancs 20 August 2004 resolution:
x x x [T]he preliminary investigation for purposes of finding sufficient ground for [Eusebios] disqualification, has already been
accomplished by the RED-NCR prior to the election. There also appears no doubt in my mind, that such recommendation of the
investigating officer, RED-NCR, was substantive and legally sound. The First Division agreed with the result of the
investigation/recommendation, with the facts of the case clearly distilled in the assailed resolution. This, I likewise found to be in
accord with our very own rules and the jurisprudential doctrines aforestated. There could be no rhyme and reason then to dismiss
the electoral aspect of the case (i.e., disqualification) and refer the same to the Law Department for preliminary investigation. As
held in Sunga, clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification
case to its conclusion, i.e., until judgment is rendered thereon. The criminal aspect of the case is an altogether different issue.
Sunga said the reason is obvious: A candidate guilty of election offenses would be undeservedly rewarded, instead of punished,
by the dismissal of the disqualification case against him simply because the investigating body was unable, for any reason
caused upon it, to determine before the election if the offenses were indeed committed by the candidate sought to be
disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on
the commission of election offenses would not be decided before the election. This scenario is productive of more fraud which
certainly is not the main intent and purpose of the law.
41

We agree with Lanot that the COMELEC committed grave abuse of discretion when it ordered the dismissal of the
disqualification case pending preliminary investigation of the COMELEC Law Department. A review of the COMELEC First
Divisions 5 May 2004 resolution on Eusebios disqualification is in order, in view of the grave abuse of discretion committed by
the COMELEC En Banc in its 20 August 2004 resolution.
Rightful Pasig City Mayor
Eusebios Questioned Acts
We quote the findings and recommendations of Director Ladra as adopted by the COMELEC First Division:
The questioned acts of [Eusebio] are as follows:
1) The speech uttered on February 14, 2004 during the meeting dubbed as "Lingap sa Barangay" in
Barangay San Miguel, Pasig City wherein [Eusebio] allegedly asked the people to vote for him and
solicited for their support x x x:
x x x x
2) Another speech given on March 17, 2004 in ROTC St., Rosario, Pasig City wherein [Eusebio] again
allegedly uttered defamatory statements against co-[candidate] Lanot and campaigned for his
(respondents) and his groups candidacy.
x x x x
3) He caused to be published in leading newspapers about a survey allegedly done by Survey Specialist,
Inc. showing him to be leading in the mayoralty race in Pasig City.
x x x x
4) He paid a political advertisement in the Philippine Free Press in the amount of P193,660.00 as
published in its issue dated February 7, 2004.
x x x x
5) The display of billboards containing the words "Serbisyo Eusebio" and "ST" which means "Serbisyong
Totoo" before the start of the campaign period.
x x x x
6) Posters showing the respondent and his running mate Yoyong Martirez as well those showing the
name "KA ENTENG EUSEBIO" and "BOBBY EUSEBIO" in connection with the dengue project were
posted everywhere even before the start of the campaign period.
x x x x
7) Streamers bearing the words "Pasig City is for PEACE" were likewise displayed with the two letters "E"
prominently written.
x x x x
8) Stickers of [Eusebio] were likewise pasted all over the city before the start of the campaign period.
x x x x
9) [Eusebio] engaged in vote-buying by distributing shoes to the students while telling the parents that by
way of gratitude, they should vote for him.
x x x x (Emphasis in the original)
42

Eusebio argues that: (1) Lanot is in estoppel for participating in the proceedings before the COMELEC Law Department; (2)
Lanot abandoned the present petition also because of his participation in the proceedings before the COMELEC Law
Department; and (3) Lanot is guilty of forum-shopping. These arguments fail for lack of understanding of the two aspects of
disqualification cases. The proceedings before the COMELEC Law Department concern the criminal aspect, while the
proceedings before this Court concern the electoral aspect, of disqualification cases. The proceedings in one may proceed
independently of the other.
Eusebio is correct when he asserts that this Court is not a trier of facts. What he overlooks, however, is that this Court may
review the factual findings of the COMELEC when there is grave abuse of discretion and a showing of arbitrariness in the
COMELECs decision, order or resolution.
43
We find that the COMELEC committed grave abuse of discretion in issuing its 20
August 2004 resolution.
Our review of the factual findings of the COMELEC, as well as the law applicable to this case, shows that there is no basis to
disqualify Eusebio. Director Ladra recommended the disqualification of Eusebio "for violation of Section 80 of the Omnibus
Election Code." The COMELEC First Division approved Director Ladras recommendation and disqualified Eusebio. Section 80 of
the Omnibus Election Code provides:
SECTION 80. Election campaign or partisan political activity outside campaign period. It shall be unlawful for any person,
whether or not a voter or candidate, or for any party, or association of persons, to engage in an election campaign or partisan
political activity except during the campaign period: Provided, That political parties may hold political conventions or meetings to
nominate their official candidates within thirty days before the commencement of the campaign period and forty-five days for
Presidential and Vice-Presidential election. (Emphasis supplied)
What Section 80 of the Omnibus Election Code prohibits is "an election campaign or partisan political activity" by a "candidate"
"outside" of the campaign period. Section 79 of the same Code defines "candidate," "election campaign" and "partisan political
activity" as follows:
SECTION 79. Definitions. As used in this Code:
(a) The term "candidate" refers to any person aspiring for or seeking an elective public office, who has filed a
certificate of candidacy by himself or through an accredited political party, aggroupment, or coalition of parties;
(b) The term "election campaign" or "partisan political activity" refers to an act designed to promote the election or
defeat of a particular candidate or candidates to a public office which shall include:
(1) Forming organizations, associations, clubs, committees or other groups of persons for the purpose of
soliciting votes and/or undertaking any campaign for or against a candidate;
(2) Holding political caucuses, conferences, meetings, rallies, parades, or other similar assemblies, for the
purpose of soliciting votes and/or undertaking any campaign or propaganda for or against a candidate;
(3) Making speeches, announcements or commentaries, or holding interviews for or against the election
of any candidate for public office;
(4) Publishing or distributing campaign literature or materials designed to support or oppose the election
of any candidate; or
(5) Directly or indirectly soliciting votes, pledges or support for or against a candidate.
The foregoing enumerated acts if performed for the purpose of enhancing the chances of aspirants for nomination for candidacy
to a public office by a political party, aggroupment, or coalition of parties shall not be considered as election campaign or partisan
election activity.
Public expressions or opinions or discussions of probable issues in a forthcoming election or on attributes of or criticisms against
probable candidates proposed to be nominated in a forthcoming political party convention shall not be construed as part of any
election campaign or partisan political activity contemplated under this Article.
Thus, the essential elements for violation of Section 80 of the Omnibus Election Code are: (1) a person engages in an election
campaign or partisan political activity; (2) the act is designed to promote the election or defeat of a particular candidate or
candidates; (3) the act is done outside the campaign period.
The second element requires the existence of a "candidate." Under Section 79(a), a candidate is one who "has filed a certificate
of candidacy" to an elective public office. Unless one has filed his certificate of candidacy, he is not a "candidate." The third
element requires that the campaign period has not started when the election campaign or partisan political activity is committed.
Assuming that all candidates to a public office file their certificates of candidacy on the last day, which under Section 75 of the
Omnibus Election Code is the day before the start of the campaign period, then no one can be prosecuted for violation of Section
80 for acts done prior to such last day. Before such last day, there is no "particular candidate or candidates" to campaign for or
against. On the day immediately after the last day of filing, the campaign period starts and Section 80 ceases to apply since
Section 80 covers only acts done "outside" the campaign period.
Thus, if all candidates file their certificates of candidacy on the last day, Section 80 may only apply to acts done on such last day,
which is before the start of the campaign period and after at least one candidate has filed his certificate of candidacy. This is
perhaps the reason why those running for elective public office usually file their certificates of candidacy on the last day or close
to the last day.
There is no dispute that Eusebios acts of election campaigning or partisan political activities were committed outside of the
campaign period. The only question is whether Eusebio, who filed his certificate of candidacy on 29 December 2003, was a
"candidate" when he committed those acts before the start of the campaign period on 24 March 2004.
Section 11 of Republic Act No. 8436 ("RA 8436") moved the deadline for the filing of certificates of candidacy to 120 days before
election day. Thus, the original deadline was moved from 23 March 2004 to 2 January 2004, or 81 days earlier. The crucial
question is: did this change in the deadline for filing the certificate of candidacy make one who filed his certificate of candidacy
before 2 January 2004 immediately liable for violation of Section 80 if he engaged in election campaign or partisan political
activities prior to the start of the campaign period on 24 March 2004?
Section 11 of RA 8436 provides:
SECTION 11. Official Ballot. The Commission shall prescribe the size and form of the official ballot which shall contain the titles
of the positions to be filled and/or the propositions to be voted upon in an initiative, referendum or plebiscite. Under each position,
the names of candidates shall be arranged alphabetically by surname and uniformly printed using the same type size. A fixed
space where the chairman of the Board of Election Inspectors shall affix his/her signature to authenticate the official ballot shall
be provided.
Both sides of the ballots may be used when necessary.
For this purpose, the deadline for the filing of certificate of candidacy/petition for registration/manifestation to
participate in the election shall not be later than one hundred twenty (120) days before the elections: Provided, That, any
elective official, whether national or local, running for any office other than the one which he/she is holding in a permanent
capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period
corresponding to the position for which he/she is running: Provided, further, That, unlawful acts or omissions applicable to a
candidate shall take effectupon the start of the aforesaid campaign period: Provided, finally, That, for purposes of the May 11,
1998 elections, the deadline for filing of the certificate of candidacy for the positions of President, Vice-President, Senators and
candidates under the party-list system as well as petitions for registration and/or manifestation to participate in the party-list
system shall be on February 9, 1998 while the deadline for the filing of certificate of candidacy for other positions shall be on
March 27, 1998.
The official ballots shall be printed by the National Printing Office and/or the Bangko Sentral ng Pilipinas at the price comparable
with that of private printers under proper security measures which the Commission shall adopt. The Commission may contract
the services of private printers upon certification by the National Printing Office/Bangko Sentral ng Pilipinas that it cannot meet
the printing requirements. Accredited political parties and deputized citizens arms of the Commission may assign watchers in the
printing, storage and distribution of official ballots.
To prevent the use of fake ballots, the Commission through the Committee shall ensure that the serial number on the ballot stub
shall be printed in magnetic ink that shall be easily detectable by inexpensive hardware and shall be impossible to reproduce on
a photocopying machine, and that identification marks, magnetic strips, bar codes and other technical and security markings, are
provided on the ballot.
The official ballots shall be printed and distributed to each city/municipality at the rate of one (1) ballot for every registered voter
with a provision of additional four (4) ballots per precinct.
44
(Emphasis added)
Under Section 11 of RA 8436, the only purpose for the early filing of certificates of candidacy is to give ample time for the printing
of official ballots. This is clear from the following deliberations of the Bicameral Conference Committee:
SENATOR GONZALES. Okay. Then, how about the campaign period, would it be the same[,] uniform for local and national
officials?
THE CHAIRMAN (REP. TANJUATCO). Personally, I would agree to retaining it at the present periods.
SENATOR GONZALES. But the moment one files a certificate of candidacy, hes already a candidate, and there are many
prohibited acts on the part of candidate.
THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
SENATOR GONZALES. And you cannot say that the campaign period has not yet began [sic].
THE CHAIRMAN (REP. TANJUATCO). If we dont provide that the filing of the certificate will not bring about ones being a
candidate.
SENATOR GONZALES. If thats a fact, the law cannot change a fact.
THE CHAIRMAN (REP. TANJUATCO). No, but if we can provide that the filing of the certificate of candidacy will not result in that
official vacating his position, we can also provide that insofar he is concerned, election period or his being a candidate will not yet
commence. Because here, the reason why we are doing an early filing is to afford enough time to prepare this machine readable
ballots.
So, with the manifestations from the Commission on Elections, Mr. Chairman, the House Panel will withdraw its proposal and will
agree to the 120-day period provided in the Senate version.
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. Chairman.
x x x x
SENATOR GONZALES. How about prohibition against campaigning or doing partisan acts which apply immediately upon being
a candidate?
THE CHAIRMAN (REP. TANJUATCO). Again, since the intention of this provision is just to afford the Comelec enough time to
print the ballots, this provision does not intend to change the campaign
periods as presently, or rather election periods as presently fixed by existing law.
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be subject to the other prohibition.
THE CHAIRMAN (REP. TANJUATCO). Thats right.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
THE CHAIRMAN (REP. TANJUATCO). In other words, actually, there would be no conflict anymore because we are talking
about the 120-day period before election as the last day of filing a certificate of candidacy, election period starts 120 days also.
So that is election period already. But he will still not be considered as a candidate.
45
(Emphasis added)
Thus, because of the early deadline of 2 January 2004 for purposes of printing of official ballots, Eusebio filed his certificate of
candidacy on 29 December 2003. Congress, however, never intended the filing of a certificate of candidacy before 2 January
2004 to make the person filing to become immediately a "candidate" for purposes other than the printing of ballots. This
legislative intent prevents the immediate application of Section 80 of the Omnibus Election Code to those filing to meet the early
deadline. The clear intention of Congress was to preserve the "election periods as x x x fixed by existing law" prior to RA 8436
and that one who files to meet the early deadline "will still not be considered as a candidate."
Under Section 3(b) of the Omnibus Election Code, the applicable law prior to RA 8436, the campaign period for local officials
commences 45 days before election day. For the 2004 local elections, this puts the start of the campaign period on 24 March
2004. This also puts the last day for the filing of certificate of candidacy, under the law prior to RA 8436, on 23 March 2004.
Eusebio is deemed to have filed his certificate of candidacy on
this date for purposes other than the printing of ballots because this is the interpretation of Section 80 of the Omnibus Election
Code most favorable to one charged of its violation. Since Section 80 defines a criminal offense,
46
its provisions must be
construed liberally in favor of one charged of its violation. Thus, Eusebio became a "candidate" only on 23 March 2004 for
purposes other than the printing of ballots.
Acts committed by Eusebio prior to his being a "candidate" on 23 March 2004, even if constituting election campaigning or
partisan political activities, are not punishable under Section 80 of the Omnibus Election Code. Such acts are protected as part of
freedom of expression of a citizen before he becomes a candidate for elective public office. Acts committed by Eusebio on or
after 24 March 2004, or during the campaign period, are not covered by Section 80 which punishes only acts outside the
campaign period.
We now examine the specific questioned acts of Eusebio whether they violate Section 80 of the Omnibus Election Code.
We begin with the 14 February 2004 and the 17 March 2004 speeches of Eusebio:
1) The speech uttered on February 14, 2004 during the meeting dubbed as "Lingap sa Barangay" in
Barangay San Miguel, Pasig City wherein [Eusebio] allegedly asked the people to vote for him and
solicited for their support x x x:
2) Another speech given on March 17, 2004 in ROTC St., Rosario, Pasig City wherein [Eusebio] again
allegedly uttered defamatory statements against co-[candidate] Lanot and campaigned for his
(respondents) and his groups candidacy.
47
(Emphasis in the original)
The 14 February 2004 and 17 March 2004 speeches happened before the date Eusebio is deemed to have filed his certificate of
candidacy on 23 March 2004 for purposes other than the printing of ballots. Eusebio, not being a candidate then, is not liable for
speeches on 14 February 2004 and 17 March 2004 asking the people to vote for him.
The survey showing Eusebio leading in the mayoralty race was published before Eusebio was deemed to have filed his
certificate of candidacy on 23 March 2004. Thus:
3) He caused to be published in leading newspapers about a survey allegedly done by Survey Specialist, Inc. showing
him to be leading in the mayoralty race in Pasig City.
x x x x
They also presented Certification issued by Mr. Diego Cagahastian, News Editor of Manila Bulletin dated 10 March 2004 and Mr.
Isaac G. Belmonte, Editor-in-Chief of Philippine Star dated March 2, 2004 to the effect that the articles in question came from the
camp of [Eusebio].
48
(Emphasis in the original)
Eusebio is not liable for this publication which was made before he became a candidate on 23 March 2004.
The political advertisement in the Philippine Free Press issue of 7 February 2004 was also made before Eusebio became a
candidate on 23 March 2004. Thus:
4) He paid a political advertisement in the Philippine Free Press in the amount of P193,660.00 as published in its issue
dated February 7, 2004.
49
(Emphasis in the original)
The display of Eusebios billboards, posters, stickers, and streamers, as well as his distribution of free shoes, all happened also
before Eusebio became a candidate on 23 March 2004. Thus:
5) The display of billboards containing the words "Serbisyo Eusebio" and "ST" which means "Serbisyong Totoo" before
the start of the campaign period.
x x x x
6) Posters showing the respondent and his running mate Yoyong Martinez as well those showing the name "KA
ENTENG EUSEBIO" and "BOBBY EUSEBIO" in connection with the dengue project were posted everywhere even
before the start of the campaign period.
x x x x
Petitioners witnesses Alfonso Cordova and Alfredo Lacsamana as well as Hermogenes Garcia stated in their respective
affidavits marked as Exhs. "L" and "L-1" that the pictures were taken on March 3, 7 & 8, 2004.
x x x x
7) Streamers bearing the words "Pasig City is for PEACE" were likewise displayed with the two letters "E" prominently
written.
x x x x
Said streamers were among those captured by the camera of the petitioners witnesses Hermogenes Garcia and Nelia Sarmiento
before the start of the campaign period.
8) Stickers of [Eusebio] were likewise pasted all over the city before the start of the campaign period.
x x x x
9) [Eusebio] engaged in vote-buying by distributing shoes to the students while telling the parents that by way of
gratitude, they should vote for him.
The affidavits of Ceferino Tantay marked as Exh. "M" and Flor Montefalcon, Norie Altiche and Myrna Verdillo marked as Exh. "O"
are uncontroverted. Their statement that free shoes were given to the students of Rizal High School was corroborated by the
Manila Bulletin issue of February 6, 2004 which showed the picture of the respondent delivering his speech before a group of
students.
x x x x
50
(Emphasis in the original)
Based on the findings of Director Ladra, the questioned acts attributed to Eusebio all occurred before the start of the campaign
period on 24 March 2004. Indeed, Director Ladra applied Section 80 of the Omnibus Election Code against Eusebio precisely
because Eusebio committed these acts "outside" of the campaign period. However, Director Ladra erroneously assumed that
Eusebio became a "candidate," for purposes of Section 80, when Eusebio filed his certificate of candidacy on 29 December
2003.
Under Section 11 of RA 8436, Eusebio became a "candidate," for purposes of Section 80 of the Omnibus Election Code, only on
23 March 2004, the last day for filing certificates of candidacy. Applying the facts - as found by Director Ladra and affirmed by the
COMELEC First Division - to Section 11 of RA 8436, Eusebio clearly did not violate Section 80 of the Omnibus Election Code
which requires the existence of a "candidate," one who has filed his certificate of candidacy, during the commission of the
questioned acts.
Eusebio asserts that Section 11 of RA 8436 exculpates him from any liability for the questioned acts.1wphi1 Eusebio points out that
Section 11 contains the following proviso:
Provided, further, That, unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid
campaign period: x x x
Eusebio theorizes that since the questioned acts admittedly took place before the start of the campaign period, such acts are not
"unlawful acts or omissions applicable to a candidate."
We find no necessity to apply in the present case this proviso in Section 11 of RA 8436. Eusebios theory legalizes election
campaigning or partisan political activities before the campaign period even if a person has already filed his certificate of
candidacy based on the election periods under existing laws prior to RA 8436. Under Eusebios theory, Section 11 of RA 8436
punishes unlawful acts applicable to a candidate only if committed during the campaign period.
By definition, the election offense in Section 80 of the Omnibus Election Code cannot be committed during the campaign period.
On the other hand, under Eusebios theory, unlawful acts applicable to a candidate cannot be committed outside of the campaign
period. The net result is to make the election offense in Section 80 physically impossible to commit at any time. We shall leave
this issue for some other case in the future since the present case can be resolved without applying the proviso in Section 11 of
RA 8436.
Effect of Eusebios Possible
Disqualification
As second placer, Lanot prayed that he be proclaimed as the rightful Pasig City Mayor in the event of Eusebios disqualification.
As third placer, Benavides, on the other hand, prays that she be proclaimed as the rightful Pasig City Mayor in the event of
Eusebios disqualification and in view of Lanots death. Even if we assume Eusebios disqualification as fact, we cannot grant
either prayer.
The disqualification of the elected candidate does not entitle the candidate who obtained the second highest number of votes to
occupy the office vacated because of the disqualification.
51
Votes cast in favor of a candidate who obtained the highest number of
votes, against whom a petition for disqualification was filed before the election, are presumed to have been cast in the belief that
he was qualified. For this reason, the second placer cannot be declared elected.
52

The exception to this rule rests on two assumptions. First, the one who obtained the highest number of votes is disqualified.
Second, the voters are so fully aware in fact and in law of a candidates disqualification to bring such awareness within the realm
of notoriety but nonetheless the voters still cast their votes in favor of the ineligible candidate.
53
Lanot and Benavides failed to
prove that the exception applies in the present case. Thus, assuming for the sake of argument that Eusebio is disqualified, the
rule on succession provides that the duly elected Vice-Mayor of Pasig City shall succeed in Eusebios place.
54

WHEREFORE, we DISMISS the petition. We find no grave abuse of discretion in the 10 May 2004 Advisory of Chairman
Benjamin S. Abalos and in the 21 May 2004 Order of the Commission on Elections En Banc. We SET ASIDE the 20 August 2004
Resolution of the Commission En Banc since respondent Vicente P. Eusebio did not commit any act which would disqualify him
as a candidate in the 10 May 2004 elections.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
REYNATO S. PUNO
Associate Justice
LEONARDO A. QUISUMBING
Associate Justice
CONSUELO YNARES-SANTIAGO
Associate Justice
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
RENATO C. CORONA
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice
ROMEO J. CALLEJO, SR.
Associate Justice
ADOLFO S. AZCUNA
Associate Justice
DANTE O. TINGA
Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
CANCIO C. GARCIA
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision were reached in
consultation before the case was assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes
1
Under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil Procedure.
2
Per Curiam Resolution with Chairman Benjamin S. Abalos and Commissioners, Resurreccion Z. Borra, Virgilio
O. Garcillano, and Manuel A. Barcelona, Jr., concurring. Commissioner Florentino A. Tuason, Jr. wrote a
separate dissenting opinion, where he was joined by Commissioner Mehol K. Sadain. Rollo, Vol. 1, pp. 91-104.
3
En Banc Order with Chairman Benjamin S. Abalos and Commissioners Mehol K. Sadain, Resurreccion Z. Borra,
Florentino A. Tuason, Jr., Virgilio O. Garcillano, and Manuel A. Barcelona, Jr., concurring. Commissioner Rufino
S.B. Javier inhibited himself from the case. Id. at 155-159.
4
Id. at 163.
5
Per Curiam Resolution with only Commissioners Resurreccion Z. Borra and Virgilio O. Garcillano participating.
Presiding Commissioner Rufino S.B. Javier had no part. Id. at 105-150.
6
En Banc Order with Chairman Benjamin S. Abalos and Commissioners Rufino S.B. Javier, Resurreccion Z.
Borra, and Florentino A. Tuason, Jr., concurring. Commissioners Mehol K. Sadain, Virgilio O. Garcillano, and
Manuel A. Barcelona, Jr. dissented in part, stating that the issue of Eusebios guilt must be decided on the merits.
Id. at 160-162.
7
This Resolution was referred to as the "resolution promulgated by the First Division dated 8 May 2004" by the
COMELEC En Banc. A "Very Urgent Advisory" issued by Chairperson Abalos on 8 May 2004 was addressed to
Atty. Esmeralda Amora-Ladra, Acting Regional Election Director of the National Capital Region; Atty. Romeo
Alcazar, Acting Election Officer of the 1st District of Pasig City; Ms. Marina Gerona, Acting Election Officer of the
2nd District of Pasig City; and all Chairmen and Members of the Board of Election Inspectors and Pasig City
Board of Canvassers. The 8 May 2004 Advisory merely reiterated the dispositive portion of the COMELEC First
Divisions 5 May 2004 Resolution. Id. at 151-152.
8
Id. at 164-215.
9
Id. at 216-240.
10
Id. at 241-293.
11
Id. at 294-337.
12
Id. at 148.
13
Id. at 149.
14
Id. at 151. See also note 7.
15
Id. at 153.
16
Id. at 338-351.
17
Id. at 163.
18
Id. at 355-357.
19
Id. at 162.
20
Id. at 158.
21
Id. at 158-159.
22
Id. at 521-538.
23
G.R. 163302, 23 July 2004, 435 SCRA 98.
24
370 Phil. 625 (1999).
25
351 Phil. 310 (1998).
26
Rollo, Vol. 1, p. 95
27
Id. at 11, 14-16.
28
See The COMELEC Rules of Procedure, Rule 25, Sec. 1; COMELEC Resolution 6452 (2003). See
alsoMercado v. Manzano, 367 Phil. 132 (1999).
29
See Mercado v. Manzano, 367 Phil. 132 (1999).
30
See Lonzanida v. COMELEC, 370 Phil. 625 (1999); Sunga v. COMELEC, 351 Phil. 310 (1998). See
alsoLomugdang v. Javier, 128 Phil. 424 (1967) and De Mesa, et al. v. Mencias, et al., 124 Phil. 1187 (1966).
Although the cases of Lomugdang and De Mesa concern election contests, these case underscore this Courts
policy of disregarding the statutorily prescribed time limit in allowing petitions for substitution and petitions in
intervention. Moreover, in contrast to disqualification cases where the issues may be raised by any voter or
political party, election contests raise questions which are personal to the protestant and protestee and may
arguably be considered extinguished by the death of either party. Yet Lomugdang andDe Mesa not only allowed
substitution and intervention, they further declared that the perceived urgency in deciding election cases should
give way to the ends of justice.
31
Rollo, Vol. 1, p. 161.
32
The COMELEC promulgated both Resolutions on 16 May 2004.
33
The Electoral Reforms Law of 1987, Section 6.
34
See Nolasco v. COMELEC, 341 Phil. 761 (1997).
35
Supra note 25, at 321-322.
36
378 Phil. 585, 598-600 (1999).
37
Omnibus Election Code, Section 265.
38
See Bagatsing v. COMELEC, supra note 35; Sunga v. COMELEC, supra note 25; Nolasco v. COMELEC, supra
note 33.
39
See Omnibus Election Code, Section 264.
40
See Bagatsing v. COMELEC, supra note 37.
41
Rollo, Vol. 1, pp. 103-104.
42
Id. at 135-148.
43
See Nolasco v. COMELEC, supra note 33.
44
Republic Act No. 9006 now allows all elective public officials, local or national, to hold on to their elective offices
even after filing their certificates of candidacy. Section 14 of RA 9006 provides:
SECTION 14. Repealing Clause. Sections 67 and 85 of the Omnibus Election Code (Batas Pambansa Blg.
881) and Sections 10 and 11 of Republic Act No. 6646 are hereby repealed. As a consequence, the
first proviso in the third paragraph of Section 11 of Republic Act No. 8436 is rendered ineffective. All laws,
presidential decrees, executive orders, rules and regulations, or any part thereof inconsistent with the provisions
of this Act are hereby repealed or modified or amended accordingly.
45
Minutes of Bicameral Conference Committee on Constitutional Amendments, Revision of Codes and Laws, 16
December 1997, as certified by Director Antonia P. Barros, Legislative Records and Archives Service.
46
Omnibus Election Code, Section 262.
47
Rollo, Vol. 1, pp. 135, 139.
48
Id. at 142.
49
Id. at 143.
50
Id. at 143-146.
51
See Kare v. COMELEC, G.R. 157526, 28 April 2004, 428 SCRA 264; Loreto v. Brion, 370 Phil. 727
(1999); Domino v. COMELEC, 369 Phil. 798 (1999); Reyes v. COMELEC, 324 Phil. 813 (1996); Aquino v.
COMELEC, G.R. No. 120265, 18 September 1995, 248 SCRA 400; Labo, Jr. v. COMELEC, G.R. No. 105111, 3
July 1992, 211 SCRA 297; Abella v. COMELEC, G.R. No. 100710, 3 September 1991, 201 SCRA 253; Labo,
Jr. v. COMELEC, G.R. No. 86564, 1 August 1989, 176 SCRA 1; Geronimo v. Ramos, No. L-60504, 14 May 1985,
136 SCRA 435.
52
See Loreto v. Brion, 370 Phil. 727 (1999).
53
See Grego v. COMELEC, G.R. 125955, 19 June 1997, 274 SCRA 481.
54
See The Local Government Code, Republic Act No. 7160, Section 44 (1991).

The Lawphil Project - Arellano Law Foundation


SEPARATE OPINION
PANGANIBAN, CJ :
While I agree "in the result" of the ponencia, which recommends that the Petition be dismissed, I have some reservations with
regard to the discussion of the issue of whether Eusebio violated Section 80 of the Omnibus Election Code.
The ponencia states that "[u]nder Section 11 of RA 8436, Eusebio became a candidate, for purposes of Section 80 of the
Omnibus Election Code (OEC), only on 23 March 2004, the last day for filing certificates of candidacy." Pursuant to this
statement, Eusebio, despite having filed a Certificate of Candidacy on December 29, 2003, was still not deemed a candidate until
the last day for filing certificates of candidacy. This proposition seems to disregard the definition of a "candidate" as stated in
Section 79 (a).
1
The bases given in the ponencia
2
for this action are (1) the law prior to RA 8436; and (2) liberal construction, in
favor of the accused.
In my view, these grounds are insufficient. First, being the more current law, Republic Act 8436 now conveys the legislative will.
Hence, the prior law, if inconsistent with it, can no longer be applied. Therefore, the earlier law, which set the deadline of the filing
of the certificate of candidacy on the day before the beginning of the campaign period,
3
can no longer be followed because the
present law has reset the deadline at 120 days before election day. Candidates thus need to file only one certificate of
candidacy. To encourage, or to deem as proper, the filing of two certificates (the first for purposes of the ballot and the second for
all other purposes) -- whether actual or in principle -- will merely promote unnecessary waste and confusion.
Second, the present case concerns only the electoral and not the criminal aspect, as very well differentiated in the ponencia.
Hence, a liberal interpretation of Section 80 is not called for. More important, the determination of who is a candidate in relation
to the filing of a certificate of candidacy involves Section 79 of the OEC and Republic Act 8436, not Section 80 of the OEC. Not
being penal, these provisions should not be construed liberally in favor of the "accused."
Indeed, the deliberations on Republic Act 8436 show that the lawmakers initially thought that the filing of a certificate of
candidacy to meet the deadline for purposes of the ballot will not deem the filer a candidate for other purposes, particularly in
connection with a candidates prohibited acts. This idea, however, did not appear in the final approved version of the law. As it is,
there appears no basis or necessity for distinguishing when a person is considered a candidate for the purposes of printing the
ballots, on the one hand; and for other purposes, on the other.
To stress, what came out in the final approved law was the Section 11 proviso, which reads as follows: "Provided, further, That,
unlawful acts or omissions applicable to a candidate shall take effect upon the start of the aforesaid campaign period." The
ponencia finds "no necessity to apply in the present case this proviso . . . since the present case can be resolved without
applying the proviso in Section 11 of RA 8436." I believe, though, that the application of the proviso has to be addressed in the
present case if the merits are to be resolved squarely.
It is my position that Director Ladra was correct in considering Eusebio to have become a candidate even for purposes of Section
80, when he filed his certificate of candidacy on December 29, 2003. This inference is very clear from Section 79, which has not
been repealed -- expressly or impliedly -- by Republic Act 8436. Eusebio thus violated Section 80.
Be that as it may, the net result is that the acts mentioned in Section 80 cannot be deemed unlawful at any time because of the
clause in Section 11 of Republic Act 8436 -- that "unlawful acts or omissions applicable to a candidate shall take effect upon the
start of the aforesaid campaign period"; and the fact that by definition the unlawful acts in Section 80 of the OEC cannot be
committed during the campaign period. In other words, the foregoing proviso has been impliedly repealed. Hence, there is no
effective basis for disqualifying Eusebio.
WHEREFORE, I vote to DISMISS the Petition.
ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes
1
Sec. 79. Definitions.- As used in this Code:
"(a) The term "candidate" refers to any person aspiring for or seeking an elective public office, who has
filed a certificate of candidacy by himself or through an accredited political party, aggroupment, or
coalition of parties[.]"
2
P. 29, ponencia.
3
Section 75 of the Omnibus Election Code.

The Lawphil Project - Arellano Law Foundation


SEPARATE OPINION
TINGA, J .:
In legal contemplation, petitions for disqualification of election candidates are supposed to be filed, litigated and decided prior to
the proclamation of the candidate sought to be disqualified. Any attempt to initiate or intervene in a petition for disqualification
must be done before the proclamation of the candidate. Yet Justice Carpios opinion now rules that even long after the candidate
has been proclaimed, any person who professes some interest may be allowed to intervene. This is a ruling that would effectively
lengthen the adjudication of petitions for disqualification and encourage the dilatory use of the intervention process even if the
original petitioner himself no longer has interest in pursuing the petition. The procedure for disqualification was intended as a
finite process, Justice Carpios opinion now makes it infinite.
I respectfully dissent insofar as Justice Carpios opinion would resolve the case on the merits, and submit that the petition should
be dismissed on the ground of mootness.
The petition for disqualification against respondent Vicente Eusebio was originally filed by petitioner based on two provisions of
the Omnibus Election Code (Code), namely Sections 68 and 80. Section 80 declares as unlawful forany person to engage in an
election campaign or partisan political activity except during the campaign period, while Section 68 authorizes the disqualification
of any candidate who violates Section 80. Moreover, Section 262 of the Code provides that violation of Section 80 constitutes
an election offense, which in turn engenders criminal liability.
In the case at bar, petitioner, along with four other candidates in the 2004 Pasig City elections, timely filed the petition for
disqualification against respondent Mayor Vicente Eusebio (Eusebio) well before the 2004 elections. The case had still been
pending before the COMELEC by the time Eusebio was proclaimed as the winner in the mayoralty elections of that year. After
the COMELEC finally dismissed the petition for disqualification, Lanot elevated such decision to the Court for review under Rule
64 of the Rules of Civil Procedure, as was his right. However, none of the four co-petitioners joined Lanot in his petition before
this Court. Then, Lanot was tragically assassinated on 13 April 2005.
Had Lanot been joined in his present petition by any of his original co-petitioners, there would be no impediment in deciding this
case on the merits. Since they did not, there was nobody left with standing to maintain this present petition upon Lanots death.
However, two persons, Benavides and Raymundo, none of whom showed previous interest to join or intervene in the petition
while Lanot was still alive, now seek to be admitted before this Court as,
respectively, an intervenor or as a substitute
1
to Lanot. There is no statutory or procedural rule that would authorize such
unconventional steps, yet Justice Carpios opinion has permitted the same.
What are the fundamental predicates that should be considered in ascertaining whether Benavides and Raymundo should be
allowed to intervene and substitute Lanot in the petition at this very late stage before the Court? First, the COMELEC Rules of
Procedure state that the petition for disqualification must be filed "any day after the last day for filing of certificates of
candidacy but not later than the date of proclamation."
2
Second, the COMELEC Rules of Procedure also authorize any
person "allowed to initiate an action or proceeding" to intervene in such action or proceeding during the trial, and within the
discretion before the COMELEC.
Clearly, only persons who are allowed to initiate an action or proceeding are authorized to intervene in the said action or
proceeding. Are Benavides or Raymundo "allowed to initiate an action or proceeding" at the point when they sought to intervene?
They are not, for the initiation of an action or proceeding may be done "not later than the date of proclamation."
There is indeed a consistent thrust in the law that the petition for disqualification should be resolved with finality before
proclamation. It is required that petitions for disqualification be heard summarily after due notice.
3
Section 72 enjoins the
COMELEC and the courts to "give priority to cases of disqualification to the end that a final decision shall be rendered not later
than seven days before the election in which the disqualification is sought."
4
While the law concedes that such final decision might
be rendered even after the election or the proclamation of the winning candidate,
5
it cannot be doubted that the dominant intent
of the law is to see to it that petitions for disqualification are resolved as immediately as possible.
It has been suggested that Mercado v. Manzano
6
somehow applies as precedent in permitting the belated participation of
Benavides and Raymundo in the proceedings before this Court. Yet a close examination of that case actually bolsters my
position.
In Mercado, the petition for intervention to a disqualification case was filed eight (8) days after the 11 May 1998 elections. The
Court allowed such intervention even though it was filed after the elections, hence the reliance by Justice Carpios opinion
on Mercado. However, it should be noted that even though the action for intervention came after the election, it still was lodged
three (3) months before a winning candidate was proclaimed. Thus, intervention therein was proper as it was filed by Mercado at
a time when he was still properly capacitated to initiate an action for disqualification. The Court pronounced:
Private respondent cites [provisions] of Rule 8 of the Rules of Procedure of the COMELEC in support of his claim that petitioner
has no right to intervene and, therefore, cannot bring this suit to set aside the ruling denying his motion for intervention: xxx
Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect because he
is "a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City
even if the private respondent be ultimately disqualified by final and executory judgment.
The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the
COMELEC, there had already been a proclamation of the results of the election for the vice mayoralty contest for Makati
City, on the basis of which petitioner came out only second to private respondent. The fact, however, is that there had
been no proclamation at that time.Certainly, petitioner had, and still has, an interest in ousting private respondent from the
race at the time he sought to intervene. xxx
7

Mercado clearly laid emphasis on the fact that the attempt at intervention therein was viable as it was made before the
proclamation of a winning candidate. Had Mercado sought to intervene in the proceedings before the COMELEC after the
proclamation, would the intervention have prospered? Considering that the Court expressly took into account that there had been
no proclamation yet when the intervention was filed, it stands to reason that the intervention would not have prospered if it was
filed after proclamation.
I agree that the right to intervention in a petition for disqualification lies even after election. But the same is terminated upon
proclamation, after which there are different remedies available to oust the winning candidate from office, such as an election
protest or a quo warranto petition. The availability of remedies other than intervention should guide the Court in adjudging
whether there is basis for a liberal application of the rules. In this case at bar, the intervenors were not barred from joining Lanots
petition for disqualification, or intervening in the same prior to the proclamation of Eusebio. They did not do so. So, they can no
longer do what they could have but did not do before proclamation.
It should be kept in mind that a petition for disqualification is intended at canceling the certificate of candidacy of a candidate, as
distinguished from nullifying the election that installs that candidate into office. Thus, there are at most two positive reliefs that
can be obtained in a petition for disqualification the cancellation of the certificate of candidacy; and if the election had already
taken place, the injunction against the proclamation of the controversial candidate. This is evident from Section 6 of Rep. Act No.
6646, which reads:
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.
It is telling that the injunctive relief which the COMELEC may authorize in a disqualification case is thesuspension of the
proclamation of the candidate in question. This qualification further militates that the period for the successful initiation or
intervention in a petition for disqualification terminates upon the proclamation of the said candidate. It is also revealing that there
stands no right of intervention by any third party to the pending disqualification case, the allowance of such intervention being
dependent on the sound discretion of the COMELEC or the court concerned.
There is another crucial reason why a limitation should be imposed on attempts to intervene in a disqualification petition after the
proclamation of a winning candidate. Without such proscription, any person or political party would be able to maintain a petition
for disqualification through intervention even after the original petitioners had withdrawn the petition, lost interest in pursuing the
petition, or died.
For example, during the campaign period, A, a candidate for city mayor, filed a petition for disqualification against B, the
incumbent running for re-election, for violations of the Omnibus Election Code. The petition had not yet been finally decided
when B was proclaimed as the clear winner against A. Out of a desire for peace within the city, A decided to concede Bs victory
and to withdraw the petition for disqualification a most desirable scenario even if perhaps atypical. However, following Justice
Carpios opinion, a person such as C, a non-candidate who nonetheless is an estranged creditor of B, could very well intervene
and substitute in behalf of A and pursue the disqualification case. There is likewise no stopping a D or an E to eventually follow
suit even if C eventually dies or loses interest in pursuing the protest. Justice Carpios opinion would allow a petition for
disqualification to be litigated in perpetuity, long after the proclamation of a candidate, and even after the parties who filed the
petition have since lost interest in continuing the same.
Let us further assume, for the sake of argument, that Lanot had not died but that he had opted not to assail the challenged
rulings of the COMELEC. Benavides and Raymundo, desirous to see Eusebio disqualified even though they had not participated
in the disqualification case, filed the petition for certiorari assailing the COMELEC rulings. Such a course of action is instinctively
awry, Benavides and Raymundo clearly not having standing to challenge the COMELEC rulings. Yet following Justice Carpios
opinions reasoning, Benavides and Raymundo would actually be authorized to file and litigate the certiorari petition before this
Court. After all, Justice Carpios opinion makes it clear that the only requisites for intervention in a petition for disqualification are
that the intervenors are citizens of voting age or a duly registered party, organization or coalition of political parties, and that no
final judgment has yet been rendered.
The way to preclude abuse or anomalies to the right to intervene in disqualification cases is to stress a clear and equitable rule
that intervention after proclamation should not be permitted, just as the filing of a petition for disqualification after proclamation is
prohibited. In other words, the proclamation as a bench mark operates as a bar to the filing of the petition for disqualification as
well as to any motion for intervention therein. Such an interpretation, which avoids inconvenient or absurd results, is desirable
considering the principle in statutory construction that "where there is ambiguity, such interpretation as will avoid inconvenience
and absurdity is to be adopted."
There have been instances where the Court has adopted a liberal stance in allowing for the substitution of a deceased party to
an election protest, as was authorized in cases such as De Mesa v. Mencias
8
and Lomugdang v. Javier.
9
However, an election
protest stands as a different specie from a petition for disqualification. Petitions for disqualifications are supposed to be resolved
even prior to the election itself, while election protests are necessarily commenced only after the election is held. It would be
improper to rely on either De Mesa orLomugdang to justify the sought-for interventions in this case. These cases do establish the
right to substitution of an election protestee/protestant, yet it should be noted that the parties who attempted to substitute in these
cases were real parties in interest, defined in Poe v. Arroyo as "those who would be benefited or injured by the judgment, and the
party who is entitled to the avails of the suit." In fact, if we were to deem the doctrines on substitution in protest cases as similarly
controlling in this case, the intervenors would have been denied the right to substitute the deceased Lanot, following the latest
precedent on that issue, Poe v. Arroyo. The Court as the Presidential Electoral Tribunal held therein:
Rule 3, Section 16 is the rule on substitution in the Rules of Court. This rule allows substitution by a legal representative.1wphi1 It can
be gleaned from the citation of this rule that movant/intervenor seeks to appear before this Tribunal as the legal
representative/substitute of the late protestant prescribed by said Section 16. However, in our application of this rule to an
election contest, we have every time ruled that a public office is personal to the public officer and not a property transmissible to
the heirs upon death. Thus, we consistently rejected substitution by the widow or the heirs in election contests where the
protestant dies during the pendency of the protest. In Vda. de De Mesa v. Mencias, we recognized substitution upon the death of
the protestee but denied substitution by the widow or heirs since they are not the real parties in interest. Similarly, in the later
case of De la Victoria v. Commission on Elections, we struck down the claim of the surviving spouse and children of the
protestee to the contested office for the same reason. Even in analogous cases before other electoral tribunals, involving
substitution by the widow of a deceased protestant, in cases where the widow is not a real party in interest, we denied
substitution by the wife or heirs.
This is not to say that death of the protestant necessarily abates the pending action. We have held as early as Vda. de De Mesa
(1966) that while the right to a public office is personal and exclusive to the public officer, an election protest is not purely
personal and exclusive to the protestant or to the protestee such that the death of either would oust the court of all authority to
continue the protest proceedings. Hence, we have allowed substitution and intervention but only by a real party in interest. A real
party in interest is the party who would be benefited or injured by the judgment, and the party who is entitled to the avails of the
suit. In Vda. de De Mesa v. Mencias and Lomugdang v. Javier, we permitted substitution by the vice-mayor since the vice-mayor
is a real party in interest considering that if the protest succeeds and the protestee is unseated, the vice-mayor succeeds to the
office of the mayor that becomes vacant if the one duly elected cannot assume office. In contrast, herein movant/intervenor, Mrs.
FPJ, herself denies any claim to the august office of President. Thus, given the circumstances of this case, we can conclude that
protestant's widow is not a real party in interest to this election protest.
Could Raymundo or Benavides be considered as "real parties in interest", conformably to the standard set by the Court in actions
for substitution in election protests? No. Raymundo was not even a candidate in the 2004 elections. While Benavides ran and
lost for mayor in the said election, neither would she possess the legal interest required for substitution in election protest cases,
as she would not succeed into office should Eusebio be disqualified.
Ultimately, De Mesa, Lomugdang and Poe are irrelevant to this case, as they involve election protests and not disqualification
cases. As the ponente would say, the interests that lie in disqualification cases, which extend to the prevention of an unqualified
candidate from sitting in office, are consequential enough that any voter or political party or organization is allowed to file a
petition for disqualification. Granted. However, should it necessarily mean that there should be no limits as to when petitions for
disqualification may in effect be revived or given new life through intervention?
Finally, I find it distressing that Justice Carpios opinion, in resolving the petition on the merits in favor of Eusebio, has also
chosen to preclude the continuation of any criminal action against Eusebio, concluding as it does that no election offense was
committed by the respondent. The matters elevated for review before the Court concerned the electoral aspect of a petition for
disqualification under Section 80 of the Omnibus Election Code. Such petition has two aspects the electoral aspect and the
criminal aspect. The electoral aspect pertains to whether the candidate should be disqualified from the election, while the criminal
aspect is concerned whether the same candidate is guilty of an election offense.
The distinction between the electoral and criminal aspects bear pointing out. There are different parties-in-interest who are
capacitated to file suit regarding the electoral aspect, as opposed to the criminal aspect. Section 2, Rule 25 of the COMELEC
Rules of Procedure authorizes "any citizen of voting age, or duly registered political party, organization or coalition of political
parties" in filing a petition for disqualification. On the other hand, under Section 1, Rule 34 of the COMELEC Rules of Procedure,
it is the COMELEC which has "the exclusive power to conduct preliminary investigation of all election offenses punishable under
the election laws and to prosecute the same"
10
Further, while election offenses prescribe in five (5) years after their
commission,
11
the petition for disqualification must be filed "any day after the last day for filing of certificates of candidacy but not
later than the date of proclamation."
12

Both the electoral and the criminal aspects come to fore in this case. The pending legal incidents were initiated by a petition for
disqualification filed by Lanot and four other candidates in the 2004 Pasig City elections. Subsequently, the COMELEC initiated
an investigation as to whether respondent Eusebio should be charged with an election offense. Notably, the COMELEC has yet
to find cause to discharge Eusebio of his possible criminal liability for committing an election offense. I submit that by dismissing
the present petition on the ground of mootness, the COMELEC would retain the power and the duty to ascertain whether
Eusebio may indeed be criminally liable.
There is a public interest in seeing that candidates who commit election offenses which also constitute grounds for
disqualification, are accordingly penalized and disqualified from office. I submit that this interest may be protected in the criminal
aspect of the corresponding petition for disqualification. Unlike in the electoral aspect wherein it is the individual petitioners who
have legal interest in maintaining the suit, it is the COMELEC itself which has the legal interest to pursue the criminal aspect, as it
is the poll body which has exclusive power to investigate and to prosecute election offenses. Should the petitioners die or
withdraw from the petition for disqualification, the COMELEC may still pursue the criminal aspect. If the candidate in question is
found guilty of the election offense, he may be removed from office as a result, as well as face the corresponding jail term.
The COMELEC in this case did observe that the evidence was strong that respondent Eusebio was guilty of committing election
offenses.
13
It is unfortunate that Justice Carpios opinion, in deciding the petition on the merits, has arrived at the contrary
conclusion that "Eusebio clearly did not violate Section 80 of the Omnibus Election Code," and thus precluding further
investigation or prosecution of Eusebio. This conclusion was needlessly arrived at since the death of Lanot should have already
mooted the petition for disqualification without prejudice to the right of the Comelec to investigate or prosecute Eusebio for
election offenses.
I VOTE to DISMISS the petition, it having become moot and academic.
DANTE O. TINGA
Associate Justice

Footnotes
1
A brief comment on Raymundos Motion for Substitution. I see no basis in the Rules of Court for such
substitution to be allowed on account of Lanots death. It is the heirs of the deceased who may be allowed to be
substituted for the deceased. See 1997 Rules of Civil Procedure, Rule 3, Sec. 16. Apparently though, Justice
Carpios opinion is ready to equate Raymundos attempt at "substitution" as an action for "intervention", the latter
being a distinct remedial course of action.
2
See Comelec Rules of Procedure, Rule 2, Sec. 2; emphasis supplied. See also Section 5(B)(1), Comelec
Resolution No. 6452, which was in effect at the time of the 2004 elections.
3
See Comelec Rules of Procedure, Rule 25, Sec. 3. See also Section 5(B)(8), Comelec Resolution No. 6452.
4
See Sec. 72, Omnibus Election Code.
5
See Sec. 72, Omnibus Election Code and Sec. 6, Rep. Act No. 6646.
6
367 Phil. 132 (1999).
7
Id. at 141-142. Emphasis supplied.
8
124 Phil. 1187 (1966).
9
128 Phil. 424 (1967).
10
See Sec. 1, Rule 34., COMELEC Rules of Procedure. Except as may otherwise be provided by law.
11
See Sect. 267, Omnibus Election Code
12
See Sec. 2, Rule 25, Comelec Rules of Procedure; emphasis supplied. See also Sec. 5(B)(1), Comelec
Resolution No. 6452, which was in effect at the time of the 2004 elections.
13
See Draft Ponencia, p. 7.

The Lawphil Project - Arellano Law Foundation


EN BANC
[G.R. No. 136191. November 29, 1999]
JESUS O. TYPOCO, JR., petitioner, vs. COMMISSION ON ELECTIONS
(COMELEC) EN BANC, and JESUS EMMANUEL
PIMENTEL, respondents.
D E C I S I O N
GONZAGA
_
REYES, J .:
Before us is a petition for certiorari and prohibition to annul and set aside the resolution of
the Commission on Elections (COMELEC) En Banc dated October 12, 1998 which dismissed
herein petitioner Jesus Typoco, Jr.s (TYPOCO) petition for Annulment of Election or Election
Results and/or Declaration of Failure of Elections docketed as SPA No. 98-413.
The factual antecedents insofar as pertinent to the instant petition are as follows:
TYPOCO and private respondent Jesus Pimentel (PIMENTEL) were both candidates for the
position of Governor in Camarines Norte during the May 11, 1998 elections. On May 22, 1998,
TYPOCO together with Winifredo Oco (OCO), a candidate for the position of Congressman of
the Lone District of Camarines Norte filed a Joint Appeal before the COMELEC docketed as
SPC-No. 98-133. TYPOCO and OCO questioned therein the ruling of the Provincial Board of
Canvassers of Camarines Norte which included in the canvass of votes the Certificate of Canvass
of the Municipality of Labo, Camarines Norte. TYPOCO also filed a Motion to Admit Evidence
to Prove That a Substantial Number of Election Returns Were Manufactured as They Were
Prepared by One Person based on the report of one Francisco S. Cruz, a Licensed Examiner of
Questioned Document, who examined copies of election returns of the LAKAS-NUCD.
On June 4, 1998, COMELEC (Second Division) issued an Order dismissing the Joint
Appeal. Thereafter, TYPOCO filed a Motion for Reconsideration reiterating his motion to admit
evidence to prove the manufacturing and/or spurious character of the questioned returns which
were allegedly prepared in group by only one person and which will materially affect the results
of the election for the position of Governor.
In the meantime, on June 10, 1998, TYPOCO and OCO filed with the COMELEC En
Banc a separate petition for Annulment of Election or Election Results and/or Declaration of
Failure of Elections in several precincts, docketed as SPA No. 98-413, subject of the instant
petition. The petition alleged that massive fraud and irregularities attended the preparation of the
election returns considering that upon technical examination, 305 election returns were found to
have been prepared in group by one person.
On July 15, 1998, the COMELEC En Banc issued an Order directing the Voters
Identification Division of the Commissions Election Records and Statistics Department (ERSD)
to examine the COMELEC copies of the 305 election returns questioned by TYPOCO.
On August 12, 1998, the COMELECs ERSD Voters Identification Division submitted its
Questioned Document Report to the COMELEC En Banc on the results of its technical
examination of the questioned election returns. The report disclosed, among others, that the
handwritten entries on 278 COMELEC copies of election returns particularly under the columns
Congressman/Governor/Vice-Governor Nickname or Stage Name, were written by one and the
same person in groups.
[1]

On August 31, 1998, the COMELEC En Banc issued the resolution denying petitioners
motion for reconsideration in SPC No. 98-133 on the ground that an election protest is the proper
remedy.
TYPOCO then filed a petition for certiorari and prohibition under Rule 65 with prayer for
the issuance of a temporary restraining order and/or writ of preliminary injunction assailing the
Order dated June 4, 1998 and the Resolution dated August 31, 1998, respectively issued in SPC
No. 98-133 by the COMELEC (Second Division) and the COMELEC En Banc.
[2]
In a resolution
dated September 22, 1998, this Court dismissed the petition finding no grave abuse of discretion
on the part of respondent COMELEC in issuing the aforesaid assailed orders. TYPOCOs
motion for reconsideration was likewise denied by this Court with finality on September 29,
1998.
On October 12, 1998, the COMELEC En Banc promulgated a resolution in SPA 98-413,
dismissing TYPOCOs petition for the Declaration of Failure of Elections and/or Annulment of
Elections in Camarines Norte for lack of merit, thus:
The grounds cited by petitioners do not fall under any of the instances enumerated in
Sec. 6 of the Omnibus Election Code.
In Mitmug vs. Commission on Elections, 230 SCRA 54, the Supreme Court ruled that
before the Comelec can act on a verified petition seeking to declare a failure of
elections, at least two (2) conditions must concur: (a) no voting has taken place in the
precincts on the date fixed by law, or even if there was voting, the election
nevertheless resulted in failure to elect; and (b) the votes that were not cast would
affect the result of the election. From the allegations of the petition in the instant
cases, it is clear that an election took place and that it did not result in a failure to
elect. In fact, by separate resolution, the Commission has authorized the provincial
board of canvassers to proclaim the winning candidates and this as been implemented.
WHEREFORE, the Commission hereby DISMISSES the petition in each of the above
cases, for lack of merit.
[3]

Hence, the instant petition on the grounds that the COMELEC En Banc gravely abused its
discretion as follows: 1. in holding that the grounds cited by TYPOCO do not fall under any of
the instances enumerated in Section 6 of the Omnibus Election Code; 2. in refusing to annul the
election or the election results or to declare a failure of election despite the fact that massive
fraud and irregularities attended the preparation of the election returns; 3. in failing to proclaim
TYPOCO as the winning candidate for Governor; 4. in failing to annul the proclamation of
PIMENTEL which is null and void from the beginning; 5. in ruling that an election protest is the
proper remedy and not an annulment of the election or election results and/or declaration of
failure of elections.
[4]

Simply stated, did the COMELEC commit grave abuse of discretion in not declaring a
failure of elections for the position of Governor in Camarines Norte in the May 11, 1998
elections?
In a Manifestation and Motion (In Lieu of Comment) filed by the Office of the Solicitor
General (OSG), the latter joins TYPOCOs prayer for affirmative relief. The OSG explains thus:
13. The petition a quo (SPA No. 98-413) specifically prayed for annulment of
election returns and/or election results in the protested precincts where massive fraud
and irregularities were allegedly committed in the preparation of the election returns
which, upon technical examination of their authentic copies, were found to have been
prepared in groups by one person (Petition, Annex A, p.2).
14. On this score, it should be stressed that election returns are prepared separately
and independently by the Board of Election Inspectors assigned in each and every
precinct. Hence, uniformity in the handwritten entries in the election returns
emanating from different electoral precincts, as in this case speaks only of one thing --
- THE ELECTION RETURNS WERE FABRICATED OR TAMPERED WITH.
Here, the COMELEC itself, through its own Voters Identification Department,
certified that out of the 305 election returns in the 12 municipalities of Camarines
Norte, 278 or 91.14% thereof were found to have been written by one person which
fact lucidly speaks of massive fraud in the preparation of election returns.
15. Precisely, massive fraud committed after the voting and during the preparation of
the election returns resulting in a failure to elect, is a ground for annulment of election
under Section 6 of the Omnibus Election Code. As such therefore, the case at bar falls
within the jurisdiction of COMELEC.
x x x x x x x x x.
18. At any rate, there is merit to petitioners claim that the votes in the subject
election returns, if correctly appreciated, will materially affect the results of the
election for Governor, i.e.,
TYPOCO PIMENTEL
Votes per PBC Canvass 53,454 64,358
Less: Votes obtained from
Fraudulent Returns 11,253 27,060
Difference 42,201 37,325
Vote Lead of Petitioner 4,876
[5]

The authority of the COMELEC to declare a failure of elections is derived from Section 4 of
Republic Act No. 7166, otherwise known as, The Synchronized Elections Law of 1991, which
provides that the COMELEC sitting En Banc by a majority vote of its members may decide,
among others, the declaration of failure of election and the calling of special elections as
provided in Section 6 of the Omnibus Election Code. Said Section 6, in turn, provides as follows:
Sec. 6. Failure of election. - If, on account of force majeure, violence, terrorism,
fraud or other analogous causes the election in any polling place has not been held on
the date fixed or had been suspended before the hour fixed by the 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.
The same provision is reiterated under Section 2, Rule 26 of the Revised COMELEC Rules.
Based on the foregoing laws, the instant petition must fail because the allegations therein do
not justify a declaration of failure of election.
The COMELEC correctly pointed out that in the case of Mitmug vs. Commission on
Elections
[6]
, this Court held that before COMELEC can act on a verified petition seeking to
declare a failure of election, two (2) conditions must concur: first, no voting has taken place in
the precincts concerned on the date fixed by law or, even if there was voting, the election
nevertheless resulted in a failure to elect; and second, the votes cast would affect the result of the
election. In Loong vs. Commission on Elections
[7]
, this Court added that the cause of such
failure of election should have been any of the following: force majeure, violence, terrorism,
fraud of other analogous cases. Further, in Borja, Jr. vs. Commission on Elections
[8]
, we stated
that:
The COMELEC can call for the holding or continuation of election by reason of
failure of election only when the election is not held, is suspended or results in a
failure to elect. The latter phrase, in turn, must be understood in its literal sense,
which is nobody was elected.
Clearly then, there are only three (3) instances where a failure of election may be declared,
namely: (a) the election in any polling place has not been held on the date fixed on account of
force majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any
polling place had been suspended before the hour fixed by law for the closing of the voting on
account of force majeure, violence, terrorism, fraud or other analogous causes; (c) after the
voting and during the preparation and transmission of the election returns or 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.
[9]
In all instances there must have been failure to
elect; this is obvious in the first scenario where the election was not held and the second where
the election was suspended. As to the third scenario, the preparation and transmission of the
election returns which give rise to the consequence of failure to elect must as aforesaid be
literally interpreted to mean that nobody emerged as a winner.
None of these circumstances is present in the case at bar. While the OSG joins TYPOCO in
pinpointing anomalies in the preparation of the election returns due to the uniformity of the
handwriting in the same, implying that fraud was committed at that stage, the fact is that the
casting and counting of votes proceeded up to the proclamation of the winning candidate thus
precluding the declaration of a failure of election. While fraud is a ground to declare a failure of
election, the commission of fraud must be such that it prevented or suspended the holding of an
election including the preparation and transmission of the election returns.
[10]

It can thus readily be seen that the ground invoked by TYPOCO is not proper in a
declaration of failure of election. TYPOCOs relief was for COMELEC to order a recount of the
votes cast, on account of the falsified election returns, which is properly the subject of an
election contest.
[11]

The COMELEC, therefore, had no choice but to dismiss TYPOCOs petition in accordance
with clear provisions of the law and jurisprudence.
WHEREFORE, finding no grave abuse of discretion committed by public respondent
Commission on Elections, the petition is DISMISSED and its Resolution En Banc of
October 12,1998 dismissing the petition before it on the ground that the allegations therein do
not justify a declaration of failure of election is AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Buena, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Pardo, J., no part.



[1]

Rollo, pp. 79-80.
[2]

Docketed as G.R. No. 135020-21.
[3]

Rollo, p. 34.
[4]

Rollo, pp. 13-14.
[5]

Rollo, pp. 162-164.
[6]

230 SCRA 54 (1994).
[7]

257 SCRA 1 (1996).
[8]

260 SCRA 604 (1996).
[9]

Canicosa vs. Comission on Elections, 282 SCRA 512 (1997).
[10]

See above-quoted Section 6.
[11]

Sanchez vs. Commission on Elections, 153 SCRA 67 (1987).

Republic of the Philippines
Supreme Court
Manila

EN BANC

ROSE MARIE D. DOROMAL, G.R. No. 181809
Petitioner,
Present:

PUNO, C. J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.
HERNAN G. BIRON and
COMMISSION ON ELECTIONS, Promulgated:
Respondents. February 17, 2010
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

DEL CASTILLO, J .:

We reiterate settled rulings on the appreciation of election returns in this case, to
wit, (1) before a certificate of votes may be used to prove tampering, alteration,
falsification or any other anomaly committed in the election returns, it must comply with
Sections 16 and 17 of Republic Act (RA) No. 6646,
[1]
(2) the exclusion of election returns
on the ground of tampering must be approached with extreme caution and must be based
on clear and convincing evidence, and (3) in case of discrepancy in the other authentic
copies of an election return, the procedure in Section 236 of the Omnibus Election
Code
[2]
(OEC) should be followed. For failure to comply with these rules and principles,
we hold that the Commission on Elections (COMELEC) acted with grave abuse of
discretion amounting to lack or excess of jurisdiction and accordingly order it to rectify
the unjustified disenfranchisement of voters in this case.

This Petition for Certiorari under Rules 64 and 65 of the Rules of Court seeks to
annul and set aside the COMELEC En Bancs February 1, 2008 Resolution.
[3]
The
COMELEC En Banc affirmed its Second Divisions September 12, 2007 Resolution
[4]
in
SPC No. 07-147 which ordered the exclusion of 11 election returns in the canvassing of
votes for the position of vice mayor in the Municipality of Dumangas, Iloilo.

Factual Antecedents

Petitioner Rose Marie D. Doromal (Doromal) and private respondent Hernan G.
Biron (Biron) were the vice mayoralty candidates for the Municipality of Dumangas,
Iloilo in the May 14, 2007 elections. During the canvassing of votes, Biron orally
objected to the inclusion of 25
[5]
election returns. Biron anchored his objections to the
inclusion of the 21 returns on the alleged missing taras
[6]
in Copy 4 of the contested
returns, which he obtained as the standard bearer of LAKAS-CMD, the recognized
dominant majority party in said elections.
[7]
As regards the remaining four contested
returns, Biron opposed their inclusion allegedly because there was a discrepancy between
the number of votes stated in the said returns and those stated in the certificate of votes
issued by the Board of Election Inspectors (BEI). In view thereof, the Municipal Board
of Canvassers (MBC) deferred the canvassing of the said returns. Thereafter, Biron filed
his written objections and supporting evidence.

On May 18, 2007, the MBC denied
[8]
the petitions for exclusion. It found that
there was no tampering on the number of taras for Doromal in the copy of the election
return for the MBC. It also held that the copy of the election return of the MBC was
complete with no material defect and duly signed and thumbmarked by the BEIs.
[9]


Aggrieved, Biron appealed to the COMELEC. The case was docketed as SPC No.
07-147
[10]
and raffled to the Second Division. Pending the resolution of the appeal, the
proclamation of the winning vice mayoralty candidate was ordered suspended.

Ruling of the COMELEC Second Division

On September 12, 2007, the COMELEC Second Division, voting 2-1, issued a
Resolution partially granting Birons appeal. It ordered the exclusion of only 11
contested election returns while at the same time ordered the inclusion of the remaining
14 election returns in the canvassing of votes, viz:

WHEREFORE, foregoing premises considered, the instant appeal is
PARTIALLY GRANTED. The election returns in Precinct Nos. 17A/18A, 20A,
21A/21B, 30A/31A, 59A/60A, 122A/122B, 162A/163A, 169A, 173A/173B,
174A/174B, 192A, 202A, 204A and 207A, are hereby ordered INCLUDED in the
canvass of returns for the vice-mayoralty position in Dumangas, Iloilo. The Municipal
Board of Canvassers of Dumangas, Iloilo is hereby ordered to RECONVENE and
PROCEED with the canvass of the said election returns and PROCLAIM the candidate
who garners the most number of votes.

The election returns in Precinct Nos. 107-A, 114-A, 6A/6B, 55-A, 67A/67B,
116A/116B, 130A, 42A/43A, 90A/90B, 7A/7B and 208A/208B are hereby ordered
EXCLUDED in the canvass of returns by the Municipal Board of Canvassers of
Dumangas, Iloilo.

SO ORDERED.
[11]


The COMELEC Second Division ordered the exclusion of the 11 election returns
(subject returns) because the same were allegedly tampered or falsified. It held that eight
of the 11 subject returns showed that the taras were either closed on the third or fourth
vote, instead of on the fifth vote, resulting in a discrepancy between the number
of tarasvis--vis the written figures and words in the said returns. With regard to the
remaining three returns, the Second Division noted a glaring dissimilarity between the
votes stated in the said returns and those stated in the certificate of votes. Further, it lent
credence to the affidavits of Birons poll watchers stating that numerous irregularities
attended the tallying of the votes at the precinct level. According to the Second Division,
these irregularities pointed to a scheme to increase the votes of Doromal, thus,
necessitating the exclusion of the

subject returns.

Commissioner Rene V. Sarmiento (Commissioner Sarmiento) registered a
dissent. He reasoned that the missing taras did not, by themselves, conclusively establish
that the subject returns were altered or tampered. Also, the affidavits of Birons poll
watchers should not have been given weight for being self-serving. In his view, the
proper recourse was not to exclude the subject returns but to order the correction of
manifest errors so that the number of votes in figures and words would conform to the
number of taras in the subject returns.

Thus, on September 24, 2007, the MBC reconvened and proceeded to canvass the
abovementioned 14 returns. As a result, Biron emerged as the winning candidate with
12,497 votes while Doromal received 12,319 votes, or a winning margin of 178
votes. On even date, Biron was proclaimed as the duly elected vice mayor of the
Municipality of Dumangas, Iloilo.

Ruling of the COMELEC En Banc

On February 1, 2008, the COMELEC En Banc affirmed the ruling of the Second
Division. It held that the Second Division properly appreciated the affidavits of Birons
poll watchers given the serious allegations of irregularities that attended the tallying of
votes; that the use of the certificate of votes to establish tampering in the subject returns
was proper in a pre-proclamation controversy; and that an examination of the records of
this case supported the Second Divisions findings that the subject returns were tampered
or falsified.

Commissioner Sarmiento maintained his previous dissent that the exclusion of the
subject returns was improper. He further noted that in case correction of manifest errors
was not viable, votes may be recounted pursuant to Section 236 of the OEC.

Issues

The issues raised by petitioner may be summarized as follows:

1. The COMELEC gravely abused its discretion when it failed to compare the
contested returns with the other authentic copies thereof before ruling that there
was tampering or falsification of the said returns.

2. The COMELEC gravely abused its discretion when it used the certificate of
votes to exclude the three contested election returns considering that it cannot
go beyond the face of the returns in establishing that there was tampering or
falsification and considering further that said certificates did not comply with
Section 17 of RA 6646.

3. The COMELEC gravely abused its discretion when it gave credence to the
self-serving affidavits of private respondents poll watchers.

4. The COMELEC gravely abused its discretion when it ordered the exclusion
of the subject returns because, in case of falsification or tampering, the
procedure under Sections 235 and 236 of the OEC should have been followed
in order not to disenfranchise the voters.
[12]


Petitioners Arguments

Doromal advances several possible reasons for the missing taras in Copy 4
(i.e., copy of the dominant majority party) of the subject returns, to wit, (1) the pressure
exerted by the poll clerk in accomplishing duplicate originals of the subject returns was
not sufficient as to leave its mark on the succeeding pages, (2) the carbon paper had poor
quality, (3) the election return papers were misaligned relative to the carbon paper, or (4)
the erasures were deliberately made by Biron on Copy 4 to pave the way for the subject
pre-proclamation controversy.
Further, while the instant petition was pending resolution before this Court,
Doromal requested the COMELEC to open the ballot boxes where the COMELECs
copy of the subject returns (i.e., Copy 3) was safekept. On April 21, 2008, the
COMELEC granted the request and ordered the opening of the ballot boxes. It thereafter
allowed Doromal to photocopy Copy 3 of the subject returns found therein. On June 17,
2008, petitioner filed a Motion for Leave to File Manifestation
[13]
with attached
Manifestation
[14]
before this Court summarizing her observations with respect to Copy 3
of the subject returns. She noted that some of the missing taras in Copy 4 were not found
in Copy 3. With respect to the missing taras in Copy 3 just as in Copy 4, petitioner
reiterated that the cause thereof was the insufficient pressure exerted by the poll clerk in
accomplishing the election returns or the misalignment of the election return copies while
the duplicate originals were being accomplished using carbon paper. Thus, there was no
basis for the COMELEC to rule that the subject returns were falsified or tampered.

Petitioner also claims that the COMELEC never compared Copy 4 of the subject
returns with the other authentic copies of the said returns as required under Section 235 of
the OEC. Assuming that the COMELEC made such comparison with the other authentic
copies, this was not done in the presence of petitioner in violation of her due process
rights.

Anent the exclusion of the three subject returns, petitioner asserts that the
COMELEC erred in using the certificate of votes to establish falsification or tampering
because the COMELEC cannot go beyond the face of the returns in a pre-proclamation
controversy. Assuming arguendo that the COMELEC may use the certificate of votes,
the requirement set by Section 17 of RA 6646 was not complied with. Thus, the
certificate of votes is inadmissible in evidence.

Petitioner faults the COMELEC for relying on the affidavits of private
respondents poll watchers in concluding that irregularities attended the preparation of the
subject returns. Evidently, these affidavits are self-serving and of no probative value.

Lastly, petitioner argues that assuming that the subject returns were falsified or
tampered, the proper recourse would be to follow the procedure outlined in Sections 235
and 236 of the OEC and not to summarily exclude said returns. Under the aforesaid
provisions, the COMELEC should have authorized the opening of the ballot boxes and
thereafter ordered the BEI to recount the votes of the candidates affected and prepare a
new return which shall then be used by the MBOC as the basis of the new canvass.

Private Respondents Arguments

Private respondent contends that the points raised by petitioner are factual in
nature, thus, not proper in a petition for certiorari under Rule 65 which is limited to
questions of jurisdiction. He claims that the findings of the COMELEC with respect to
the falsification and tampering of the subject returns must be accorded respect and even
finality by this Court. Biron also points out that in making such a finding, the
COMELEC Second Division compared the subject returns with the other authentic
copies thereof which was affirmed by the COMELEC En Banc after the latter made its
own independent examination of the records of this case.

Biron also claims that there was no denial of due process. Since a pre-
proclamation controversy is summary in nature, Biron posits that the COMELEC
properly appreciated the evidence in this case consisting of the pleadings and
documentary evidence of the respective parties without the need of holding a formal or
trial-type hearing.

He also avers that the COMELEC properly gave credence to the affidavits of his
poll watchers. He emphasizes that the subject returns appear to be tampered and falsified
on their face so that the affidavits were merely used to buttress or substantiate the cause
of these irregularities.

Finally, Biron claims that the procedure under Sections 235 and 236 of the OEC is
not applicable to this case because the same refers to the board of canvassers and not the
COMELEC. Also, these provisions do not allow the COMELEC to motu proprio order
the opening of the ballot boxes.

Our Ruling

The petition is meritorious.

An act done contrary to the Constitution, the law or jurisprudence; or executed
whimsically, capriciously or arbitrarily out of malice, ill will or personal bias constitutes
grave abuse of discretion.
[15]
In the instant case, we find that the COMELEC gravely
abused its discretion amounting to lack or excess of jurisdiction in ordering the exclusion
of the subject returns. The ruling contravenes clear legal provisions as well as long
standing jurisprudence on the admissibility of the certificate of votes and the appreciation
of election returns. Lamentably, the refusal of the COMELEC to heed this Courts
repeated pronouncements has again led to the disenfranchisement of voters in this
case. The writ, therefore, lies to correct this grossly abusive exercise of discretion.

The certificates of votes are inadmissible
to prove tampering, alteration or
falsification for failure to comply with
Sections 16 and 17 of RA 6646.

In excluding three of the 11 subject returns, specifically, those coming from
Precinct Nos. 90A/90B, 7A/7B and 208A, the COMELEC relied on the alleged glaring
dissimilarity between the votes stated in the said returns and those stated in the
certificates of votes. Hence, it concluded that the subject returns were falsified and
thereafter ordered their exclusion.

The certificate of votes, which contains the number of votes obtained by each
candidate, is issued by the BEI upon the request of a duly accredited watcher pursuant to
Section 16 of RA 6646. Relative to its evidentiary value, Section 17 of said law provides


Sec. 17. Certificate of Votes as Evidence. - The provisions of Sections 235 and
236 of Batas Pambansa Blg. 881 notwithstanding, the certificate of votes shall be
admissible in evidence to prove tampering, alteration, falsification or any anomaly
committed in the election returns concerned, when duly authenticated by testimonial or
documentary evidence presented to the board of canvassers by at least two members of
the board of election inspectors who issued the certificate: Provided, That failure to
present any certificate of votes shall not be a bar to the presentation of other evidence to
impugn the authenticity of the election returns.

While the above-quoted provision authorizes the COMELEC to make use of the
certificate of votes to prove tampering, alteration, falsification or any anomaly committed
in the election returns, this presupposes that the certificate of votes was accomplished in
accordance with Section 16, viz:

Sec. 16. Certificates of Votes. - After the counting of the votes cast in the
precinct and announcement of the results of the election, and before leaving the polling
place, the board of election inspectors shall issue a certificate of votes upon request of the
duly accredited watchers. The certificate shall contain the number of votes obtained by
each candidate written in words and figures, the number of the precinct, the name
of the city or municipality and province, the total number of voters who voted in the
precinct and the date and time issued, and shall be signed and thumbmarked by
each member of the board. (Emphasis supplied)

Thus, in Patoray v Commission on Elections,
[16]
we ruled that the certificate of votes is
inadmissible to prove tampering because it was signed only by the chairperson of the
BEI, whereas Section 16 required that the same be signed and thumbmarked by each
member of the BEI which issued the certificate.
[17]
Similarly, in Recabo, Jr. v.
Commission of Elections,
[18]
we rejected the certificate of votes because it did not state (1)
the number of votes obtained in words, (2) the number of the precinct, (3) the total
number of voters who voted in the precinct, and (4) the time of issuance. Further, the
certificate was merely certified true and correct by an acting election officer.
[19]


In the instant case, the certificates of votes from Precinct Nos. 90A/90B
[20]
and
7A/7B
[21]
are defective, for they do not contain (1) the thumbmarks of the members of the
BEI, (2) the total number of voters who voted in the precinct, and (3) the time of the
issuance of the certificates. Likewise, the certificate of votes from Precinct 208A
[22]
is
defective because it does not contain (1) the names, signatures and thumbmarks of the
members of the BEI, (2) the total number of voters who voted in the precinct, and (3) the
time of the issuance of the certificate. Aida Pineda, private respondents poll watcher in
said precinct, claims that she prepared a certificate of votes reflective of the true tally in
the election return, but the members of the BEI refused to affix their signatures thereto.
Even if we were to concede that the BEI members unjustifiedly refused to sign, this
would not validate the said certificate. Private respondents remedy was to compel the
BEI to issue the certificate of votes under pain of prosecution for an election
offense.
[23]
At any rate, we cannot admit the defective certificate because, by Pinedas
own admission, she was the one who prepared the entries in the said certificate and not
the BEI as required by Section 16 of RA 6646, thus raising grave doubts as to its
accuracy.
[24]

Moreover, before the certificate of votes may be admitted as evidence of
tampering, Section 17 requires that the certificate be duly authenticated by testimonial or
documentary evidence presented to the board of canvassers by at least two members of
the board of election inspectors who issued the certificate. This requirement originated
from Section 11
[25]
of House Bill (HB) No. 805 and was later consolidated, with minor
revisions, in Section 17
[26]
of HB 4046 the precursor of RA 6646. During the period of
interpellations, Representative Zarraga proposed that the aforesaid authentication
requirement be dispensed with, viz:

MR. ZARRAGA. [I]n connection with Sections 16 and 17, on House Bill No.
4046, only insofar as it concerns the admissibility in evidence of the certificate of votes.
MR. PALACOL. Yes, Mr. Speaker.

MR. ZARRAGA. Under Section 17, the certificate of votes shall be admissible
in evidence only when duly authenticated by testimonial or documentary evidence
presented to the Board of Canvassers by at least two members of the Board of Election
Inspectors who issued the certificate.


The presentation of the certificate of votes is, of course, during the
proceedings. And said proceedings may be one, two or three months, probably even
more, after the voting has taken place.

And under Section 16, will the certificate of votes be signed and thumbmarked
by each member of the Board of Inspectors?

MR. PALACOL. Yes, Mr. Speaker.

MR. ZARRAGA. This Representation feels that this should be sufficient to
consider the certificate of votes as duly authenticated, especially because at that time the
members have just prepared said certificate and therefore, there should be no need to
further require two members of the board subsequently because they may no
longer be available to authenticate the certificate of votes.

This Representation would like to inquire from the Gentlemen if the
distinguished sponsor will be willing to also amend Section 16 in such a way that the
certificate of votes, when already signed and thumbmarked by each member of the board,
shall be considered as duly authenticated and admissible in evidence in any subsequent
proceedings.

In other words, we should already dispense with requiring two other
members at a subsequent time, when they may no longer be present to authenticate
a document which, in the first place, has already been signed and thumbmarked by
each member of the board in accordance with the proposed Section 16 of House Bill
No. 4046.

MR. PALACOL. The Gentlemen [are] assured that we are going to consider all
these amendments during the period of amendments. And I always grant that the
Gentlemen from Bohol will submit valuable amendments in order to ensure a clean and
honest election.

MR. ZARRAGA. Thank you very much, Mr. Speaker. x x x
[27]
(Emphasis
supplied)

It appears, however, that Representative Zarragas proposal was no longer pursued
during the period of amendments as Section 17 of HB 4046 was passed on third reading
without any change in its wording as now found in Section 17 of RA 6646. The clear
legislative intent was, thus, to impose the additional condition under Section 17 before
the certificate of votes may be admitted in evidence to prove tampering.

The rationale of the law is perceptible. By requiring that the certificate of votes be
duly authenticated by at least two members of the BEI who issued the same, the law
seeks to safeguard the integrity of the certificate from the time it is issued by the BEI to
the watcher after the counting of votes at the precinct level up to the time that it is
presented to the board of canvassers to prove tampering. The legislature may have
reasonably foreseen that the certificate may be easily altered while in the hands of the
watcher in order to orchestrate a sham pre-proclamation controversy. To counterbalance
this possibility, the law imposes the condition that the certificate, aside from complying
with Section 16, must be subsequently authenticated at the time of its presentment to the
board of canvassers in the event that it shall be used to prove tampering. This way the
COMELEC may be assured that the certificate of votes issued by the BEI to the watcher
of a protesting candidate contains the same entries as the one thereafter presented before
the MBC to prove tampering. The procedure is consistent with the over-all policy of the
law to place a premium on an election return, which appears regular on its face, by
imposing stringent requirements before the certificate of votes may be used to controvert
the election returns authenticity and operate as an exception to the general rule that in a
pre-proclamation controversy, the inquiry is limited to the four corners of the election
return.

In the instant case, the records indicate that Biron failed to comply with the
requirements set by Section 17 with respect to the certificates of votes from Precinct Nos.
208A, 90A/90B and 7A/7B which he submitted in evidence before the MBC. This
should have provided an added reason for the COMELEC to refuse the admission of said
certificates had the COMELEC carefully examined the certificates of votes appearing in
the records of this case.

In sum, the COMELEC gravely abused its discretion in admitting in evidence the
aforementioned certificates of votes which did not comply with Sections 16 and 17 of
RA 6646. To make matters worse, the COMELEC excluded the subject election returns
on the basis of these defective certificates thereby leading to the disenfranchisement of
467 voters as per the records of this case.
[28]
These votes can materially affect the
outcome of the elections considering that private respondent won by only 178
votes. Accordingly, the COMELEC is ordered to include the election returns from
Precincts 208A, 90A/90B and 7A/7B in the canvass of the votes in this case.

The affidavits of private respondents
poll watchers are self-serving and
grossly inadequate to establish the
tampering of the subject returns.
Similarly, the one, or, at most, two
missing taras in each of the eight subject
returns, without more, does not establish
tampering.

In excluding eight of the 11 subject returns, specifically, those coming from
Precinct Nos. 107A, 114A, 6A/6B, 55A, 67A/67B, 116A/116B, 130A and 42A/ 43A, the
COMELEC ruled that the said returns were tampered or falsified based on the
missing taras in the other authentic copies of the said returns, viz:

[A]fter a careful inspection of the contested election returns and other authentic copies of
the same, this Commission finds sufficient basis for the exclusion of some of these
returns for being tampered or falsified. The exclusion of the said returns is based on the
following findings:

a. In the election return for Precinct No. 107-A, an examination of the same
shows that the tallies or taras for the fourth box or square for Respondent-
Appellee Doromal [were] closed on the fourth vote;

b. In the election return for Precinct No. 114-A, an examination of the same
shows that the tallies or taras for the twelfth box or square for Respondent-
Appellee Doromal [were] closed on the fourth vote;

c. In the election return for Precinct No. 130-A, an examination of the same
shows that the tallies or taras for the fifth and seventh boxes or squares for
Respondent-Appellee Doromal were closed on the fourth vote;

d. In the election return for clustered Precinct Nos. 6-A and 6-B, an examination
of the same shows that the tallies or taras for the seventh box or square for
Respondent-Appellee Doromal [were] closed on the fourth vote;


e. In the election return for Precinct No. 55-A, an examination of the same shows
that the tallies or taras for the sixth box or square for Respondent-Appellee
Doromal [were] closed on the fourth vote;

f. In the election return for clustered Precinct Nos. 67-A and 67-B, an
examination of the same shows that the tallies or taras for the fifth box or square
for Respondent-Appellee Doromal [were] closed on the fourth vote;

g. In the election return for clustered Precinct Nos. 116-A and 116-B, an
examination of the same shows that the tallies or taras for the eighteenth and
nineteenth boxes or squares for Respondent-Appellee Doromal were closed on
the fourth vote;

h. In the election return for clustered Precinct Nos. 42-A and 43-A, an
examination of the same shows that the tallies or taras for the twenty-first box or
square for Respondent-Appellee Doromal [were] closed on the fourth vote;

Considering that a substantial number of these election returns have the same type of
discrepancy, i.e., the taras were not closed on the fifth vote, the said election returns cannot be
relied upon to determine the votes in the said precincts. Evidently, the methodical tampering of
these returns permanently put in doubt their authenticity as valid bases for the results of the
elections. Thus, they should be excluded from the canvass.
[29]


The COMELEC also gave credence to the affidavits of private respondents poll
watchers, who stated that numerous irregularities allegedly occurred during the tallying
of the votes at the precinct level.

We find the manner in which the COMELEC excluded the subject returns to be
fatally flawed. In the absence of clearly convincing evidence, the validity of election
returns must be upheld.
[30]
A conclusion that an election return is obviously
manufactured or false and consequently should be disregarded in the canvass must be
approached with extreme caution and only upon the most convincing
proof.
[31]
Corrolarily, any plausible explanation, one which is acceptable to a reasonable
man in the light of experience and of the probabilities of the situation, should suffice to
avoid outright nullification, which results in disenfranchisement of those who exercised
their right of suffrage.
[32]
As will be discussed shortly, there is a patent lack of basis for
the COMELECs findings that the subject returns were tampered. In disregard of the
principle requiring extreme caution before rejecting election returns, the COMELEC
proceeded with undue haste in concluding that the subject returns were tampered. This is
grave abuse of discretion amounting to lack or excess of jurisdiction.

At the outset, we find that the COMELEC placed undue reliance on the affidavits
of Birons poll watchers to establish the irregularities and fraud allegedly committed
during the counting of votes. These affidavits are evidently self-serving. Thus, we have
ruled that reliance should not be placed on affidavits of this nature for purposes of setting
aside the validity of election returns.
[33]


Furthermore, the contents of these affidavits are grossly inadequate to establish
tampering. Private respondents poll watchers, namely, Michelle Duhina and Cirilo
Demadante,
[34]
Mary Grace Jiz-Deseo and Lito Duller,
[35]
Victoria Develos and Joy May
De La Gante,
[36]
Rizal Artoro Deza III and Reno Demonteverde,
[37]
Cecile Alcanzarin and
Horte May Dimzon,
[38]
Rosie Ventura,
[39]
and Babylyn Dedoroy and Sarah Dondoy
Ano
[40]
stated, in substance, that: (1) some of them were not so situated in the precinct to
see clearly the tallying of the votes in the election returns, (2) there was a 30 minute
brownout in some of the precincts (i.e., Precinct Nos. 107A and 114A), (3) some of them
were asked to affix their signatures and thumb marks ahead of the members of the BEI,
(4) some of them were not given Copy 4 of the subject returns after the counting, and (5)
they noticed the discrepancy between the taras and written figures only later on when
they were shown Copy 4 of the election returns.
While these statements suggest that the watchers failed to assert their rights or to
perform their duties under the OEC,
[41]
we fail to see how they established that the
election returns were tampered. On the contrary, these affidavits reveal that the watchers
failed to detect any anomaly during the actual tallying of the votes at the precinct level
because the missing taras were discovered only later on when Copy 4 was shown to
them.

Neither can we deduce from the missing taras the fraud that allegedly marred the
tallying of votes therein. We have examined Copy 4 and Copy 5
[42]
of the subject returns
as appearing in the records of this case, and we note that the said returns are regular on
their face save for one or, at most, two missing taras in each of the eight contested
election returns.
[43]
We find it significant that in some of these returns (i.e., those from
Precinct Nos. 114A,
[44]
55A
[45]
and 42A/43A),
[46]
while one tara is indeed missing in
Copy 4, no such missing tara exists in Copy 5, although the supposed missing tara in
Copy 4 is located very near the border, if not on the border, of the box in Copy 5 of the
election returns. This suggests that in making the duplicate originals, the forms for
Copies 2 to 7 of the election returns were not perfectly aligned with Copy 1 (i.e., the
MBCs copy), resulting in the misalignment of the taras in the carbon copies of the said
returns. This may explain why there appears to be a missing tara in Copy 4 of these
returns. It should also be noted that the number of votes in written figures and words is
not disputed as they appear to be uniform in Copies 4 and 5 of the subject returns. The
discrepancy is, thus, limited to the number of taras vis--vis the number of votes in
written figures and words. In view thereof and in the absence of clear and convincing
proof, the evidence on record fails to establish the tampering or falsification of the subject
returns. At most, there are minor discrepancies in Copies 4 and 5 of the subject returns
consisting of one or two missing taras.

In case of discrepancy in the other
authentic copies of an election return,
the procedure in Section 236 of the
Omnibus Election Code should be
followed.

In Patoray, we ordered the COMELEC to proceed in accordance with Section
236 of the OEC after it was determined that there was a discrepancy between
the taras vis--vis the written figures and words in the election return.
[47]
With the above
finding that there are minor discrepancies in the other authentic copies of the subject
returns, specifically Copies 4 and 5, the proper procedure then is not to exclude the said
returns but to follow Section 236, viz:

SECTION 236. Discrepancies in election returns. In case it appears to the
board of canvassers that there exists discrepancies in the other authentic copies of the
election returns from a polling place or discrepancies in the votes of any candidate in
words and figures in the same return, and in either case the difference affects the
results of the election, the Commission, upon motion of the board of canvassers or any
candidate affected and after due notice to all candidates concerned, shall proceed
summarily to determine whether the integrity of the ballot box had been preserved, and
once satisfied thereof shall order the opening of the ballot box to recount the votes cast in
the polling place solely for the purpose of determining the true result of the count of votes
of the candidates concerned. (Emphasis supplied)

The COMELEC should, thus, order the canvass of the election returns from
Precinct Nos. 107A, 114A, 6A/6B, 55A, 67A/67B, 116A/116B, 130A and 42A/
43A. After canvassing, it should determine whether the total number of
missing taras will affect the result of the elections. If it will not affect the result, the
COMELEC should proclaim as winner the vice mayoralty candidate with the highest
number of votes. On the other hand, if the total number of missing taras will affect the
results of the election, the COMELEC, after due notice to all candidates concerned,
should proceed summarily to determine whether the integrity of the ballot boxes (where
the election returns with missing tara/s were tallied) have been preserved. Once satisfied
therewith, the COMELEC should order the opening of the ballot boxes to recount the
votes cast in the polling place solely for the purpose of determining the true result of the
count of votes of the candidates concerned.
[48]
However, if the integrity of the ballots has
been violated, the COMELEC need not recount the ballots but should seal the ballot box
and order its safekeeping in accordance with Section 237 of the OEC, thus:

Sec. 237. When integrity of ballots is violated. If upon the opening of the
ballot box as ordered by the Commission under Sections 234, 235 and 236, hereof, it
should appear that there are evidence or signs of replacement, tampering or violation of
the integrity of the ballots, the Commission shall not recount the ballots but shall
forthwith seal the ballot box and order its safekeeping.

In sum, it was highly irregular for the COMELEC to outrightly exclude the subject
returns resulting in the disenfranchisement of some 1,127 voters as per the records of this
case.
[49]
The proper procedure in case of discrepancy in the other authentic copies of the
election returns is clearly spelled out in Section 236 of the OEC. For contravening this
legal provision, the COMELEC acted with grave abuse of discretion amounting to lack
or excess of jurisdiction.

We end with some observations. Had there been sufficient evidence of tampering
in this case, it would still be highly improper for the COMELEC to outrightly exclude the
subject election returns. In such a case, the COMELEC should proceed in accordance
with Section 235
[50]
of the OEC which is similar to Section 236 in that the COMELEC is
authorized to open the ballot box as a measure of last resort. This has been our consistent
ruling as early as in the 1995 case of Patoray followed by Lee v. Commission on
Elections,
[51]
Balindong v. Commission on Elections,
[52]
Dagloc v. Commission on
Elections,
[53]
and Cambe v. Commission on Elections.
[54]
It is quite disquieting, therefore,
that despite these repeated pronouncements, the COMELEC persists in summarily
excluding the election returns without undertaking the requisite steps to determine the
true will of the electorate as provided in the pertinent provisions of the OEC. The
paramount consideration has always been to protect the sanctity of the ballot; not to
haphazardly disenfranchise voters, especially where, as here, the election is closely
contested. The COMELECs constitutional duty is to give effect to the will of the
electorate; not to becloud their choice by defying the methods in the OEC designed to
ascertain as far as practicable the true will of the sovereign people. Verily, the strength
and stability of our democracy depends to a large extent on the faith and confidence of
our people in the integrity of the electoral process where they participate as a particle of
democracy. That is the polestar that should have guided the COMELECs actions in this
case.

WHEREFORE, the petition is GRANTED. The COMELEC En Bancs
February 1, 2008 Resolution is NULLIFIED.

The COMELEC is ORDERED to raffle SPC No. 07-147 to one of its divisions
which is directed to resolve the same with deliberate dispatch in accordance with this
Decision by:

(1) Including the election returns from Precinct Nos. 90A/90B, 7A/7B and
208A in the canvassing of votes for the position of vice mayor of the
Municipality of Dumangas, Iloilo;

(2) Proceeding in accordance with Section 236 of the Omnibus Election Code,
as outlined in this Decision, with respect to the canvassing of the election
returns from Precinct Nos. 107A, 114A, 6A/6B, 55A, 67A/67B, 116A/116B,
130A and 42A/43A for the position of vice mayor of the Municipality of
Dumangas, Iloilo;

(3) Proclaiming the winning candidate for the position of vice mayor of the
Municipality of Dumangas, Iloilo in the May 14, 2007 elections after the
canvassing of the aforementioned election returns.

SO ORDERED.


MARIANO C. DEL CASTILLO
Associate Justice


WE CONCUR:


REYNATO S. PUNO
Chief Justice





ANTONIO T. CARPIO
Associate Justice
RENATO C. CORONA
Associate Justice





CONCHITA CARPIO MORALES
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice





ANTONIO EDUARDO B. NACHURA
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice





ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice





LUCAS P. BERSAMIN
Associate Justice
ROBERTO A. ABAD
Associate Justice





MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE P. PEREZ
Associate Justice




JOSE C. MENDOZA
Associate Justice



CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that
the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.


REYNATO S. PUNO
Chief Justice





[1]
An Act Introducing Additional Reforms in the Electoral System and For Other Purposes. Effective: January 5, 1988.
[2]
Batas Pambansa Blg. 881, effective: December 3, 1985.
[3]
Rollo, pp. 68-72. The Resolution was adopted by Acting Chairman Resurreccion Z. Borra, Commissioners Florentino A.
Tuason, Jr., Romeo A. Brawner, Nicodemo T. Ferrer and Moslemen T. Macarambon. Commissioner Rene V. Sarmiento
dissented.
[4]
Id. at 33-42; penned by Commissioner Nicodemo T. Ferrer. Presiding Commissioner Florentino A. Tuason, Jr. concurred
in a separate opinion. Commissioner Rene V. Sarmiento dissented.
[5]
These were the election returns from Precinct Nos. 204-A, 207-A, 202-A, 107-A, 169-A. 114-A, 20-A, 130-A, 174-
A/174-B, 6-A/6-B, 55-A, 162-A/163-A, 67-A/67-B, 90-A/90-B, 21-A/21-B, 7-A/7-B, 208-A/208-B, 173-A/173-B, 116-
A/116-B, 59-A/60-A, 42-A/43-A, 192-A, 112-A/112-B, and 30-A/30-B.
[6]
The term tara refers to the lines representing one vote in the counting of votes at the precinct level as provided in Section
210 of the OEC, viz:
Sec. 210. Manner of counting votes x x x
Each vote shall be recorded by a vertical line, except every fifth vote which shall be recorded
by a diagonal line crossing the previous four vertical lines. x x x
In Patoray v. Commission on Elections, [319 Phil. 564, 569 (1995)], we used the term taras thus:
We hold that the COMELECs Second Division correctly ordered the exclusion of Election
Return No. 661290 (Precinct No. 16), it appearing that it contained a discrepancy between the taras
and the written figures. In addition, however, the COMELECs Second Division should have ordered a
recount of the ballots or used the Certificate of Votes cast in the precinct in question to determine the
votes for each of the parties in this case. (Emphasis supplied)
[7]
There were seven (7) copies of the election returns prepared by the BEI. These were distributed in accordance with
Section 1 of RA 8173:
SECTION 1. Section 27 of Republic Act No. 7166, as amended by Republic Act No. 8045, is hereby further
amended to read as follows:
SEC. 27. Number of Copies of Election Returns and their Distribution. The Board of Election
Inspectors shall prepare in handwriting the election returns in their respective polling places, in the number of
copies herein provided and in the form to be prescribed and provided by the Commission.
The copies of the election returns shall be distributed as follows: x x x
(b) In the election of local officials:
(1) The first copy shall be delivered to the city or municipal board of canvassers;
(2) The second copy, to the Commission;
(3) The third copy, to the provincial board of canvassers;
(4) The fourth copy, to the dominant majority party as determined by the Commission in
accordance with law;
(5) The fifth copy, to the dominant minority party as determined by the Commission in accordance
with law;
(6) The sixth copy, to a citizens' arm authorized by the Commission to conduct an unofficial count:
Provided, however, That the accreditation of the citizens' arm shall be subject to the provisions of
Section 52(k) of Batas Pambansa Blg. 881; and
(7) The seventh copy shall be deposited inside the compartment of the ballot box for valid ballots.
[8]
Records, vol. I, pp. 180-208.
[9]
Id.
[10]
Entitled In the Matter of the Appeal from the Rulings of the Board of Canvassers of Dumangas, Iloilo, In BOC Case
Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 25.
[11]
Rollo, p. 42.
[12]
Id. at 258-262.
[13]
Id. at 127-129.
[14]
Id. at 130-183.
[15]
Information Technology Foundation of the Philippines v. Commission on Elections, 464 Phil. 173, 190 (2004).
[16]
Supra note 6 at 568-569.
[17]
Id. at 571.
[18]
368 Phil. 277, 290 (1999).
[19]
Id.
[20]
Records, vol. I, p. 64.
[21]
Id. at 68.
[22]
Id. at 70.
[23]
The unjustified refusal of the BEI to issue a certificate of votes is an election offense under Section 27(c) of RA 6646:
Sec. 27. Election Offenses. - In addition to the prohibited acts and election offenses enumerated in Sections 261 and
262 of Batas Pambansa Blg. 881, as amended, the following shall be guilty of an election offense: x x x
(c) Any member of the board of election inspectors who refuses to issue to duly accredited watchers the certificate
of votes provided in Section 16 hereof.
[24]
Pineda stated in her affidavit, thus:
That after the counting of votes, I, Aida Pineda personally indicated with my handwriting the votes of candidates
for the position of, among others, Vice-Mayor and made the members of the Board of Election Inspectors (BEI) sign the
same. The votes are as follows:
c. Vice-Mayor
1. Hernan Biron, Jr. thirty one 31
2. Rose Doromal one hundred eight 108
Attached is a copy of the Certificate of Votes that I (Aida Pineda) personally prepared for clustered precinct 208A
as Annex A and made an integral part of our affidavit.
That I, Aida Pineda, presented the Certificate of Votes that I prepared to the Chairman of BEI, Matias Eugenio
Piosca but he refused to sign the said Certificate despite my insistence that he is obliged to do so under the law.
That we were surprised when we learned that the votes for Vice-Mayor Candidate Rose Doromal increased to 118
from 108 votes or was padded with ten votes in the Election Return prepared by member of BEI Darwin B. Lico.
That before I presented the Certificate of Votes (Annex A) to the Chairman of the BEI, Matias Eugenio Piosca I,
Aida Pineda double-checked the Certificate of Votes that I prepared and I determined that the votes especially for Vice-
Mayor Candidate Rose Doromal was accurate at 108 votes.
That despite my presentation of the authority given by the party to get its copy of the Election Returns, the BEI did
not give me the copy of the Election Returns intended for the Dominant Majority Party. (COMELEC records, vol. I, p. 299)
[25]
Section 16. Certificates of Votes. - After the counting of the votes cast in the precinct and announcement of the results of
the election, and before leaving the polling place, the board of election inspectors shall issue a certificate of votes upon
request of the duly accredited watchers. The certificate shall contain the number of votes obtained by each candidate written
in words and figures, the number of the precinct, the name of the city or municipality and province, the total number of
voters who voted in the precinct and the date and time issued, and shall be signed and thumbmarked by each member of the
board. The certificate shall be accomplished in duplicate with the use of carbon paper. The original copy shall be issued to
the watcher and the duplicate shall be kept in the custody of the chairman of the board. Refusal on the part of the board of
inspectors to issue such certificate shall constitute an election offense punishable under the Omnibus Election Code.
[26]
Section 17 of HB 4046 is of the same wording as Section 17 of RA 6646.
[27]
Records, HOUSE 8
TH
CONGRESS (December 7, 1987).
[28]
Records, vol. II, pp. 57, 59-60.
[29]
Rollo, pp. 36-37.
[30]
Casimiro v. Commission on Elections, 253 Phil. 461, 471 (1989).
[31]
Aratuc v. Commission on Elections, 177 Phil. 205, 235 (1979); Pimentel, Jr. v. Commission on Elections, 224 Phil. 260,
283 (1985).
[32]
Aratuc v. Commission on Elections, id.
[33]
Casimiro v. Commission on Elections, supra note 30.
[34]
Duhina and Demadante stated in their joint affidavit, thus:
That before the members of the Board of Election Inspectors (BEI) finished the preparation of the Election Returns
on May 14, 2007, there was a brownout in the precinct (Precinct No. 107A) for not less than thirty (30) minutes.
That we cannot clearly see the making of the tallies on the Election Returns for Local positions and only relied on
the figures contained in the total number of votes and were surprised when we were shown copies of the Election Returns
for our party, LAKAS-CMD with missing tallies in the votes for candidate Rose Marie D. Doromal (less than five lines for
one box); records, vol. I, p. 285.
[35]
Jiz-Deseo and Duller stated in their joint affidavit, thus:
That while the BEI was counting the votes, there was a brownout in the precinct (Precinct No. 114A) for not less
than thirty (30) minutes.
That after the counting of votes was completed, we were requested to sign and thumb mark the original copy and
all the other copies of the Election Returns even before the BEI affixed their signatures and thumb marks. However, since
we were already tired and in a hurry to leave, we were not able to check and verify the tallies appearing on the other copies
of the Election Returns.
That although we had the necessary authority, the BEI did not give us the copy of the Election Returns intended for
the Dominant Majority Party.
That it was only later when we were shown a copy of the Election Returns for the Dominant Majority Party that we
noticed that there were missing tallies (less than five lines per box) in the votes for Candidate Rose Marie D. Doromal in
said copy; id. at 287.
[36]
Develos and De La Gante stated in their joint affidavit, thus:
That during the counting of votes [in Precinct No. 130A], the official (brown) tally sheet was not placed on the
board for the public to see but was placed on a table.
That the third member of the Board of Election Inspector (BEI) was a municipal employee and not a teacher.
That we did not witness the making of the tallies on the Election Returns for Local Positions and only relied on the
figures contained in the total number of votes and we were surprised when we were shown copies of the Election Returns
for our party, LAKAS-CMD with missing tallies (less than five lines for one box) in the votes for candidate Rose Marie D.
Doromal; id. at 288.
[37]
Deza III and Demonteverde stated in their joint affidavit, thus:
That during the counting of votes we were assigned to watch the member of the Board of Election Inspectors (BEI)
putting the official tallies on the Election Returns for Local Positions.
After the counting of votes was completed, we were requested to sign and thumb mark the original copy and all the
other copies of the Election Returns intended for the Dominant Majority Party.
It was only later when we were shown a copy of the Election Returns for the Dominant Majority Party that we
noticed that the tallies appearing in said copy the same were different from the tallies in the copy for the Dominant Majority
Party were irregularly placed and there were missing tallies (less than five lines in the box) for candidate Rose Marie D.
Doromal in said copy; id. at 290.
[38]
Alcanzarin and Dimzon stated in their joint affidavit, thus:
That I, Cecile Alcanzarin was assigned to watch the member of the BEI making the official tallies on the Election
Returns for Local Positions. I was positioned in front of that member of the BEI making the official tallies since I was not
allowed to position myself at the back of the BEI making it difficult for me to see the tallies on the Election Returns being
made by the said members of the BEI.
That I, Cecile Alcanzarin, brought to the BEIs attention a discrepancy between the figures with votes for Vice-
Mayoral candidate Hernan Biron, Jr. appearing in the tally sheet and in the Election Returns, which the BEI then corrected.
That after the counting of the votes were completed, the BEI asked us to sign and our thumb marks before the BEI
even signed and thumb marked the Election Returns. The BEI also told us that the watchers could already leave the precinct.
That the member of the BEI making the official tallies on the Election Returns was positioned in a poorly lit place
making it doubly difficult for me to see the tallies that he was making.
It was only later when we were shown a copy of the Election Returns for the Dominant Majority Party that we
noticed that there were missing tallies (less than five lines in the box) for candidate Rose Marie D. Doromal in said copy; id.
at 291.
[39]
Ventura stated in her affidavit, thus:
That during the counting I was assigned to watch the member of the Board of Election Inspector (BEI) writing the
official tallies on the Election Returns for the Local Elections. However, I was not able to closely monitor the conduct of the
tally and just relied on the total number of votes reflected in the Election Returns without scrutinizing the individual tallies.
That after the counting of votes was complete, the BEI requested the watchers to sign and thumb mark ahead of
them.
The BEI did not give the copy of the Election Returns intended for the Dominant Majority Party to the partys
authorized representatives.
That it was only later when I was shown a copy of the Election Returns for the Dominant Majority Party that I
noticed that there were missing tallies (less than five lines per box) for the candidate Rose Marie D. Doromal; id. at 294.
[40]
Dedoroy and Ano stated in their joint affidavit, thus:
That after the counting of votes was completed, we were requested to sign and thumb mark the original copy and
all the other copies of the Election Returns. However, we were not able to check and verify the tallies appearing on the
copies of the Election Returns.
That it was only later when we were shown a copy of the Election Returns for the Dominant Majority Party that we
noticed that there were missing tallies (less than five lines per box) in the votes for Candidate Rose Marie D. Doromal in
said copy; id. at 302.
[41]
Section 179 of the OEC provides:
Section 179. Rights and duties of watchers. - Upon entering the polling place, the watchers shall present and deliver
to the chairman of the board of election inspectors his appointment, and forthwith, his name shall be recorded in the minutes
with a notation under his signature that he is not disqualified under the second paragraph of Section 178. The appointments
of the watchers shall bear the personal signature or the facsimile signature of the candidate or the duly authorized
representatives of the political party or coalition of political parties who appointed him or of organizations authorized by the
Commission under Section 180. The watchers shall have the right to stay in the space reserved for them inside the polling
place. They shall have the right to witness and inform themselves of the proceedings of the board of election inspectors,
including its proceedings during the registration of voters, to take notes of what they may see or hear, to take photographs of
the proceedings and incidents, if any, during the counting of votes, as well as of election returns, tally boards and ballot
boxes, to file a protest against any irregularity or violation of law which they believe may have been committed by the board
of election inspectors or by any of its members or by any persons, to obtain from the board of election inspectors a certificate
as to the filing of such protest and/or of the resolution thereon, to read the ballots after they shall have been read by the
chairman, as well as the election returns after they shall have been completed and signed by the members of the board of
election inspectors without touching them, but they shall not speak to any member of the board of election inspectors, or to
any voter, or among themselves, in such a manner as would distract the proceedings, and to be furnished with a certificate of
the number of votes in words and figures cast for each candidate, duly signed and thumbmarked by the chairman and all the
members of the board of election inspectors. Refusal of the chairman and the members of the board of election inspectors to
sign and furnish such certificate shall constitute an election offense and shall be penalized under this Code.
Section 12 of R.A. No. 6646 modified and expanded the rights and duties of the watchers, viz:
Sec. 12. Official Watchers. - Every registered political party, coalition of political parties, and every candidate shall
each be entitled to one watcher in every polling place: Provided, That candidates for members of the Sangguniang
Panlalawigan, Sangguniang Panlungsod or Sangguniang Bayan or for city or municipal councilors belonging to the same
slate or ticket shall collectively be entitled only to one watcher.
There shall also be recognized two principal watchers, one representing the ruling coalition and the other the
dominant opposition coalition, who shall sit as observers in the proceedings of the board. The principal watcher shall be
designated on the basis of the recommendation of the ruling coalition, represented by the political party of the incumbent
elected district representative, and of the dominant opposition coalition, represented by the political party which performed
best or which polled at least ten percent (10%) of the votes in the last national election.
A duly signed appointment of a watcher shall entitle him to recognition by the board of election inspectors and the
exercise of his rights and discharge of his duties as such: Provided, however, That only one watcher of each of those
authorized to appoint them can stay at any time inside the polling place.
The watchers shall be permitted full and unimpeded access to the proceedings so that they can read the names of
those written on the ballots being counted with unaided natural vision, consistent with good order in the polling place.
In addition to their rights and duties under Section 179 of Batas Pambansa Blg. 881, the two principal watchers
representing the ruling coalition and the dominant opposition in a precinct shall, if available, affix their signatures and
thumbmarks on the election returns for that precinct. If both or either of them is not available, unwilling or should they
refuse to do so, any watcher present, preferably with political affiliation or alignment compatible with that of the absent or
unwilling watcher, may be required by the board of election inspectors to do so.
[42]
Copy 5 (i.e., copy of the dominant minority party) was submitted in evidence by petitioner before the MBC to controvert
private respondents claim that the subject returns were tampered.
[43]
As stated earlier, petitioner endeavored to submit Copy 3 of the subject election returns while the instant petition was
pending resolution before this Court. However, this Court is not a trier of facts, and we cannot receive such documentary
evidence at this late stage in the proceedings. If it were petitioners intention to show that Copy 3 of the subject returns did
not contain missing taras, then petitioner should have done so in the proceedings before the COMELEC itself. At any rate,
even if we were to assume that the Copy 3 belatedly submitted by petitioners before this Court is authentic, we note that
these copies are substantially of the same import as Copy 5 of the subject returns appearing in the records of this case.
[44]
Records, vol. I, p. 47 (Copy 4); vol. II p. 49 (Copy 5).
[45]
Id. at 58 (Copy 4); id. at 54 (Copy 5).
[46]
Id. at 78 (Copy 4); id. at 64 (Copy 5).
[47]
Patoray v. Commission on Elections, supra note 6 at 569.
[48]
See Olondriz, Jr. v. Commission on Elections, 371 Phil. 867, 872 (1999), where we upheld the decision of the
COMELEC to open the ballot box pursuant to Section 236 of the OEC. The discrepancy between the written words vis--
vis figures in the contested election return was 10 votes while the winning candidate won by a margin of 2 votes. Thus, it
was necessary to open the ballot box to determine the true will of the electorate.
[49]
Records, vol. I, pp. 44, 48, 52, 58, 56, 62, 74 and 78.
[50]
Section 235. When election returns appear to be tampered with or falsified. - If the election returns submitted to the board
of canvassers appear to be tampered with, altered or falsified after they have left the hands of the board of election
inspectors, or otherwise not authentic, or were prepared by the board of election inspectors under duress, force, intimidation,
or prepared by persons other than the member of the board of election inspectors, the board of canvassers shall use the other
copies of said election returns and, if necessary, the copy inside the ballot box which upon previous authority given by the
Commission may be retrieved in accordance with Section 220 hereof. If the other copies of the returns are likewise
tampered with, altered, falsified, not authentic, prepared under duress, force, intimidation, or prepared by persons other than
the members of the board of election inspectors, the board of canvassers or any candidate affected shall bring the matter to
the attention of the Commission. The Commission shall then, after giving notice to all candidates concerned and after
satisfying itself that nothing in the ballot box indicate that its identity and integrity have been violated, order the opening of
the ballot box and, likewise after satisfying itself that the integrity of the ballots therein has been duly preserved shall order
the board of election inspectors to recount the votes of the candidates affected and prepare a new return which shall then be
used by the board of canvassers as basis of the canvass.
[51]
453 Phil. 277, 290 (2003). In Lee, we ruled:
The lack of merit of petitioner's arguments notwithstanding, the COMELEC, in ordering the exclusion of the
questioned return, should have determined the integrity of the ballot box, the ballot-contents of which were tallied and
reflected in the return, and if it was intact, it should have ordered its opening for a recounting of the ballots if their
integrity was similarly intact. (Emphasis supplied)
[52]
459 Phil. 1055, 1070-1071 (2003). In Balindong, we stated:
[B]ased on Section 235 of the OEC which this Court elucidated on along with Section 236 in Patoray v.
COMELEC, in cases where the election returns appear to have been tampered with, altered or falsified, the prescribed
modality is for the COMELEC to examine the other copies of the questioned returns and if the other copies are likewise
tampered with, altered, falsified, or otherwise spurious, after having given notice to all candidates and satisfied itself that the
integrity of the ballot box and of the ballots therein have been duly preserved, to order a recount of the votes cast, prepare a
new return which shall be used by the board of canvassers as basis for the canvass, and direct the proclamation of the winner
accordingly.
The COMELEC failed to observe the foregoing procedure. As admitted in its Order dated December 13, 2001, it
examined only the election returns used by the MBC, omitting to take a look at the other copies of the questioned returns or
ordering a pre-proclamation recount of the votes of the candidates affected. The failure to take either step renders the poll
body's action consisting of the outright exclusion of the return for Precinct 80A and the award of 88 votes in the
return for Precinct 47A/48A highly questionable.
The precipitate exclusion from canvass of the return for Precinct 80A resulted in the unjustified
disenfranchisement of the voters thereof. This could have been avoided had the COMELEC availed of the other courses
of action mentioned in the law, namely: the examination of the other copies of the return and the recount of the votes by the
BEI. (Emphasis supplied)
[53]
463 Phil. 263, 290-291 (2003). In Dagloc, we ruled:
Outright exclusion of election returns on the ground that they were fraudulently prepared by some
members or non-members of the BEI disenfranchises the voters. Hence, when election returns are found to be spurious
or falsified, Section 235 of the Omnibus Election Code provides the procedure which enables the COMELEC to ascertain
the will of the electorate.
The COMELEC, therefore, gravely abused its discretion when it excluded outright the subject election returns after
finding that they were fraudulent returns. Instead, the COMELEC should have followed the procedure laid down in Section
235 of the Omnibus Election Code: x x x (Emphasis supplied)
[54]
G.R. No. 178456, January 30, 2008, 543 SCRA 157, 171-174. In Cambe, we reiterated:
In the instant case, Election Return No. 9601666 cannot be considered as regular or authentic on its face inasmuch
as the total votes cast for the vice-mayoralty position, which is 288, exceeded the total number of the voters who actually
voted (230) and the total number of registered voters (285). The COMELEC therefore is clothed with ample authority to
ascertain under the procedure outlined in the Omnibus Election Code (OEC) the merits of the petition to exclude Election
Return No. 9601666.
Sections 235 and 236 of the OEC read: x x x
x x x x
In the instant case, the MBC, without complying with Section 235 of the OEC, outrightly excluded Election Return
No. 9601666. Worse, the COMELEC found nothing irregular in the procedure taken by the MBC. The precipitate
exclusion from the canvass of the return for Precincts 66A and 68 resulted in the unjustified disenfranchisement of
the voters thereof. (Emphasis supplied)
EN BANC
[G.R. No. 120318. December 5, 1997]
RICARDO "BOY" CANICOSA, petitioner, vs. COMMISSION ON
ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF
CALAMBA LAGUNA and SEVERINO LAJARA, respondents.
D E C I S I O N
BELLOSILLO, J .:
RICARDO "BOY" CANICOSA and SEVERINO LAJARA were candidates for mayor
in Calamba, Laguna, during the 8 May 1995 elections. After obtaining a majority of
some 24,000 votes
[1]
Lajara was proclaimed winner by the Municipal Board of
Canvassers. On 15 May 1995 Canicosa filed
with the Commission on Elections (COMELEC) a Petition to Declare Failure of
Election and to Declare Null and Void the Canvass and Proclamation because of
alleged widespread frauds and anomalies in casting and counting of votes, preparation
of election returns, violence, threats, intimidation, vote buying, unregistered voters
voting, and delay in the delivery of election documents and paraphernalia from the
precincts to the Office of the Municipal Treasurer. Canicosa particularly averred
that: (a) the names of the registered voters did not appear in the list of voters in their
precincts; (b) more than one-half of the legitimate registered voters were not able to
vote with strangers voting in their stead; (c) he was credited with less votes than he
actually received; (d) control data of the election returns was not filled up in some
precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer were
unsecured, i.e., without padlocks nor self-locking metal seals; and, (f) there was delay in
the delivery of election returns. But the COMELEC en banc dismissed the petition on
the ground that the allegations therein did not justify a declaration of failure of election.
Indeed, the grounds cited by Canicosa do not warrant a declaration

of failure of
election. Section 6 of BP Blg. 881, otherwise known as the Omnibus Election
Code, reads:
Sec. 6. Failure of election. - If, on account of force majeure, violence, terrorism,
fraud, or other analogous causes the election in any polling place has not been held on
the date fixed, or had been suspended before the hour fixed by law for the closing of
the voting, or after the voting and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such election results in a failure
to elect, and in any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or continuation
of the election not held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.
Clearly, there are only three (3) instances where a failure of election may be
declared, namely: (a) the election in any polling place has not been held on the date
fixed on account of force majeure, violence, terrorism, fraud, or other analogous
causes; (b) the election in any polling place had been suspended before the hour fixed
by law for the closing of the voting on account of force majeure, violence, terrorism,
fraud, or other analogous causes; 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.
None of the grounds invoked by Canicosa falls under any of those enumerated.
Canicosa bewails that the names of the registered voters in the various precincts
did not appear in their respective lists of voters. But this is not a ground to declare a
failure of election. The filing of a petition for declaration of failure of election therefore is
not the proper remedy. The day following the last day for registration of voters, the poll
clerk delivers a certified list of voters to the election registrar, election supervisor and
the COMELEC, copies of which are open to public inspection. On the same day, the
poll clerk posts a copy of the list of registered voters in each polling place. Each
member of the board of election inspectors retains a copy of the list which may be
inspected by the public in their residence or in their office during office hours.
[2]

Fifteen (15) days before the regular elections on 8 May 1995 the final list of voters
was posted in each precinct pursuant to Sec. 148 of RA No. 7166. Based on the lists
thus posted Canicosa could have filed a petition for inclusion of registered voters with
the regular courts. The question of inclusion or exclusion from the list of voters involves
the right to vote
[3]

which is not within the power and authority of COMELEC to rule
upon. The determination of whether one has the right to vote is a justiciable issue
properly cognizable by our regular courts. Section 138, Art. XII, of theOmnibus Election
Code states:
Sec. 138. Jurisdiction in inclusion and exclusion cases. - The municipal and
metropolitan trial courts shall have original and exclusive jurisdiction over all matters
of inclusion and exclusion of voters from the list in their respective municipalities or
cities. Decisions of the municipal or metropolitan trial courts may be appealed
directly by the aggrieved party to the proper regional trial court within five days from
receipts of notice thereof, otherwise said decision of the municipal or metropolitan
trial court shall decide the appeal within ten days from the time the appeal was
received and its decision shall be immediately final and executory. No motion for
reconsideration shall be entertained by the courts (Sec. 37, PD 1896, as amended).
On the other hand, Canicosa could have also filed with the COMELEC a verified
complaint seeking the annulment of the book of voters pursuant to Sec. 10, of RA No.
7166:
Sec. 10. Annulment of the List of Voters. - Any book of voters the preparation of
which has been affected with fraud, bribery, forgery, impersonation, intimidation,
force or any other similar irregularity or which is statistically improbable may be
annulled after due notice and hearing by the Commission motu propio or after the
filing of a verified complaint: Provided, that no order, ruling or decision annulling a
book of voters shall be executed within sixty (60) days before an election.
If indeed the situation herein described was common in almost all of the 557 precincts
as alleged by Canicosa,
[4]

then it was more expedient on his part to avail of the remedies
provided by law in order to maintain the integrity of the election. Since Canicosa failed
to resort to any of the above options, the permanent list of voters as finally corrected
before the election remains conclusive on the question as to who had the right to vote in
that election, although not in subsequent elections.
[5]

Canicosa also avers that more than one-half (1/2) of the legitimate registered voters
were not able to vote, instead, strangers voted in their behalf. Again, this is not a
ground which warrants a declaration of failure of election. Canicosa was allowed to
appoint a watcher in every precinct. The watcher is empowered by law to challenge any
illegal voter. Thus, Secs. 199 and 202, Art. XVII, of the Omnibus Election
Code, provide:
Sec. 199. Challenge of illegal voters. - (a) Any voter, or watcher may challenge any
person offering to vote for not being registered, for using the name of another or
suffering from existing disqualification. In such case, the board of election inspectors
shall satisfy itself as to whether or not the ground for the challenge is true by requiring
proof of registration or identity of the voter x x x x
Sec. 202. Record of challenges and oaths. - The poll clerk shall keep a prescribed
record of challenges and oaths taken in connection therewith and the resolution of the
board of election inspectors in each case and, upon the termination of the voting, shall
certify that it contains all the challenges made x x x x
The claim of Canicosa that he was credited with less votes than he actually
received and that the control data of the election returns was not filled up should have
been raised in the first instance before the board of election inspectors or board of
canvassers. Section 179, Art. XV, of the Omnibus Election Code clearly provides for
the rights and duties of watchers -
Sec. 179. Rights and duties of watchers. - x x x x The watchers x x x shall have the
right to witness and inform themselves of the proceedings of the board of election
inspectors x x x to file a protest against any irregularity or violation of law which they
believe may have been committed by the board of election inspectors or by any of its
members or by any persons, to obtain from the board of election inspectors a
certificate as to the filing of such protest and/or of the resolution thereon x x x and to
be furnished with a certificate of the number of votes in words and figures cast for
each candidate, duly signed and thumbmarked by the chairman and all the members of
the board of election inspectors x x x x
To safeguard and maintain the sanctity of election returns, Sec. 212, Art. XVIII, of
the Omnibus Election Code states -
Sec. 212. Election returns. - x x x x Immediately upon the accomplishment of the
election returns, each copy thereof shall be sealed in the presence of the watchers and
the public, and placed in the proper envelope, which shall likewise be sealed and
distributed as herein provided.
Furthermore, it is provided in Sec. 215 of the Omnibus Election Code that -
Sec. 215. Board of election inspectors to issue a certificate of the number of votes
polled by the candidates for an office to the watchers. - After the announcement of
the results of the election and before leaving the polling place, it shall be the duty of
the board of election inspectors to issue a certificate of the number of votes received
by a candidate upon request of the watchers. All members of the board of election
inspectors shall sign the certificate.
Supplementing the preceding provisions, Secs. 16 and 17 of RA No. 6646 also
require -
Sec. 16. Certification of votes. - After the counting of the votes cast in the precinct
and announcement of the results of the election, and before leaving the polling place,
the board of election inspectors shall issue a certificate of votes upon request of the
duly accredited watchers x x x x
Sec. 17. Certificate of Votes as Evidence. - The provisions of Secs. 235 and 236 of
Batas Pambansa Blg. 881 notwithstanding, the certificate of votes shall be admissible
in evidence to prove tampering, alteration, falsification or anomaly committed in the
election returns concerned x x x x
From the foregoing provisions, it is clear that in case of inconsistency as to the
number of votes written in the election returns and the certificate of votes, a petition for
correction of election returns must immediately be filed with COMELEC by all or a
majority of the members of the board of election inspectors or any candidate affected by
the error or mistake. In order to make out a case for correction of election returns, there
must be an error and at least a majority of the members of the board of election
inspectors agrees that such error existed. Canicosa never mentioned that he petitioned
for the correction of the election returns before the COMELEC
Canicosa complains that the election returns were delivered late and the ballot
boxes brought to the Office of the Municipal Treasurer unsecured, i.e., without padlocks
nor self-locking metal seals. These bare allegations cannot impel us to declare failure
of election. Assuming that the election returns were delivered late, we still cannot see
why we should declare a failure to elect. The late deliveries did not convert the election
held in Calamba into a mockery or farce to make us conclude that there was indeed a
failure of election.
In fine, the grounds cited by Canicosa in his petition do not fall under any of the
instances enumerated in Sec. 6 of the Omnibus Election Code. In Mitmug v.
Commission on Elections
[6]
we ruled that before COMELEC can act on a verified
petition seeking to declare a failure of election, at least two (2) conditions must
concur: (a) no voting has taken place in the precincts on the date fixed by law, or even
if there was voting, the election nevertheless resulted in failure to elect; and, (b) the
votes that were not cast would affect the result of the election. From the face of the
instant petition, it is readily apparent than an election took place and that it did not result
in a failure to elect.
[7]

Canicosa finally insists that it was error on the part of COMELEC sitting en
banc to rule on his petition. He maintains that his petition should have first been heard
by a division of COMELEC and later by the COMELEC en banc upon motion for
reconsideration, pursuant to Sec. 3, Art. IX-C, of the Constitution.
[8]

But this provision applies only when the COMELEC acts in the exercise of its
adjudicatory or quasi-judicial functions and not when it merely exercises purely
administrative functions. To reiterate, the grounds cited by Canicosa in his petition are
that: (a) the names of the registered voters did not appear in the list of voters in their
respective precincts; (b) more than one-half of the legitimate registered voters were not
able to vote with strangers voting in their stead; (c) he was credited with less votes than
he actually received; (d) the control data of the election returns was not filled up in some
precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer were
unsecured, i. e., without padlocks nor self-locking metal seals; and, (f) there was delay
in the delivery of election returns.
Clearly, all these matters require the exercise by the COMELEC of its administrative
functions. Section 2, Art. IX-C, of the 1987 Constitution grants extensive administrative
powers to the COMELEC with regard to the enforcement and administration of all laws
and regulations relative to the conduct of elections. Likewise, Sec. 52 of BP Blg. 881,
otherwise known as the Omnibus Election Code, states:
Sec. 52. Powers and functions of the Commission on Elections. - In addition to the
powers and functions conferred upon it by the Constitution, the Commission shall
have exclusive charge of the enforcement and administration of all laws relative to the
conduct of elections for the purpose of ensuring free, orderly and honest elections x x
x x
Quite obviously, it is only in the exercise of its adjudicatory or quasi-judicial powers
that the COMELEC is mandated to hear and decide cases first by Division and then,
upon motion for reconsideration, by the COMELEC en banc. This is when it is
jurisdictional. In the instant case, as aforestated, the issues presented demand only the
exercise by the COMELEC of its administrative functions.
The COMELEC exercises direct and immediate supervision and control over
national and local officials or employees, including members of any national or local law
enforcement agency and instrumentality of the government required by law to perform
duties relative to the conduct of elections. Its power of direct supervision and control
includes the power to review, modify or set aside any act of such national and local
officials.
[9]
It exercises immediate supervision and control over the members of the
boards of election inspectors and canvassers. Its statutory power of supervision and
control includes

the power to revise, reverse or set aside the action of the boards, as
well as to do what the boards should have done, even if questions relative thereto
have not been elevated to it by an aggrieved party, for such power includes the
authority to initiate motu proprio or by itself such steps or actions as may be required
pursuant to law.
[10]

Specifically, Canicosa alleged that he was credited with less votes than he actually
received. But he did not raise any objection before the Municipal Board of Canvassers;
instead, he went directly to the COMELEC. He now claims, after the COMELEC en
banc dismissed his petition, that it was error on the part of COMELEC to rule on his
petition while sitting en banc.
We have already disposed of this issue in Castromayor v. Commission on
Elections
[11]
thus should be pinpointed out, in this connection, that what is involved here
is a simple problem of arithmetic. The Statement of Votes is merely a tabulation per
precinct of the votes obtained by the candidates as reflected in the election returns. In
making the correction in computation, the MBC will be acting in an administrative
capacity, under the control and supervision of the COMELEC. Hence, any question
pertaining to the proceedings of the MBC may be raised directly to the COMELEC en
banc in the exercise of its constitutional function to decide questions affecting
elections.
Moreover, it is expressly provided in Rule 27, Sec. 7, of the Comelec Rules of
Procedure that any party dissatisfied with the ruling of the board of canvassers shall
have a right to appeal to the COMELEC en banc:
Sec. 7. Correction of Errors in Tabulation or Tallying of Results by the Board of
Canvassers. - (a) Where it is clearly shown before proclamation that manifest errors
were committed in the tabulation or tallying or election returns, or certificates of
canvass, during the canvassing as where (1) a copy of the election returns of one
precinct or two or more copies of a certificate of canvass were tabulated more than
once, (2) two copies of the election returns or certificate of canvass were tabulated
separately, (3) there was a mistake in the adding or copying of the
figures into the certificate of canvass or into the statement of votes by precinct,
or (4) so-called election returns from non-existent precincts were included in the
canvass, the board may motu proprio, or upon verified petition by any candidate,
political party, organization or coalition of political parties, after due notice and
hearing, correct the errors committed x x x x (h) The appeal shall be heard and
decided by the Commission en banc.
In Tatlonghari v. Commission on Elections
[12]
it was made to appear in
the Certificate of Canvass of Votes and Proclamation of the Winning Candidates that
respondent therein received 4,951 votes or more than what he actually obtained. In
resolving the case we ruled that the correction of the manifest mistake in mathematical
addition calls for a mere clerical task of the board of canvassers. The remedy invoked
was purely administrative. In Feliciano v. Lugay
[13]
we categorized the issue concerning
registration of voters, which Canicosa cited as a ground in his petition for declaration of
failure of election, as an administrative question. Likewise, questions as to whether
elections have been held or whether certain returns were falsified or manufactured and
therefore should be excluded from the canvass do not involve the right to vote. Such
questions are properly within the

administrative jurisdiction of COMELEC,
[14]
hence, may
be acted upon directly by the COMELEC en banc without having to pass through any of
its divisions.
WHEREFORE, finding no grave abuse of discretion committed by public
respondent Commission on Elections, the petition is DISMISSED and its Resolution en
banc of 23 May 1995 dismissing the petition before it on the ground that the allegations
therein did not justify a declaration of failure of election is AFFIRMED.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Melo, Puno, Vitug, Kapunan,
Francisco, Panganiban, and Martinez, JJ., concur.
Mendoza, J., on leave.



[1]
See Comment of private respondent Severino Lajara filed 29 November 1995.
[2]
Sec. 135, Art. XII, Omnibus Election Code.
[3]
Agpalo, Ruben E., Comments on the Election Code, 1992 Ed., p. 80.
[4]
See Petition, p. 5; Rollo, p. 6.
[5]
Sec. 13, Rule 20, COMELEC Rules of Procedure; Abendante v. Rebato, 94 Phil. 8 (1953).
[6]
G.R. Nos. 106270-73, 10 February 1994, 230 SCRA 54.
[7]
See Petition of Canicosa, p. 7; Rollo, p. 8.
[8]
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.
[9]
See Note 3, p. 76.
[10]
Id., p. 77.
[11]
G.R. No. 120426, 23 November 1995, 250 SCRA 304.
[12]
G.R. No. 86645, 31 July 1991, 199 SCRA 849.
[13]
93 Phil. 744 (1953).
[14]
Pungutan v. Abubakar, No. L- 33541, 20 January 1972, 43 SCRA 1.










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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 170365 February 2, 2010
ABDUL GAFFAR P.M. DIBARATUN, Petitioner,
vs.
COMMISSION ON ELECTIONS and ABDUL CARIM MALA ABUBAKAR, Respondents.
D E C I S I O N
PERALTA, J .:
This is a petition for certiorari
1
of the Resolution of the Commission on Elections (COMELEC) en banc dated October 17, 2005 in
SPA No. 02-481, which declared a failure of elections in Precinct No. 6A/7A, Barangay Bagoainguid, Municipality of Tugaya,
Lanao del Sur and annulled the proclamation of petitioner Abdul Gaffar
2
P.M. Dibaratun as the duly elected Punong Barangay of
Barangay Bagoainguid in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections.
The facts are as follows:
Respondent Abdulcarim Mala Abubakar,
3
a re-electionist candidate for the position of Punong Barangay of Barangay
Bagoainguid, Tugaya, Lanao del Sur, filed a petition
4
before the COMELEC to declare a failure of elections in Precinct No.
6A/7A, Barangay Bagoainguid, Tugaya, Lanao del Sur and to annul the proclamation of petitioner Abdul Gaffar P.M. Dibaratun
as the duly elected Punong Barangay of Barangay Bagoainguid in the July 15, 2002 Synchronized Barangay and Sangguniang
Kabataan Elections.
In his petition, respondent Abubakar alleged:
x x x x
3. That on July 15, 2002 at around 10:30 o clock in the morning, the casting of votes in the above named precinct
was commenced at its designated Polling Place in Cayagan Elementary School and while only ten (10) voters
had actually voted, a certain ALIPECRY ACOP GAFFAR, who is the son of respondent Punong Barangay
candidate ABDULGAFFAR DIBARATUN got inside the polling place and was caught in possession of Three (3)
filled up ballots where candidate ABDULGAFFAR DIBARATUN were voted which he wanted to place or insert
inside the ballot box for official (sic).
4. That when said ALIPECRY GAFFAR was confronted by the petitioners watcher and other watchers confronted
him of said official ballots, he got mad and flared up and committed violence which disrupted and stopped the
casting of votes and because of the commotion, the chairman left the ballot box which was held by the
companions of Alipecry Acop Gaffar and destroyed the said ballot box, took the official ballot contained therein
and inserted, placed therein a bundle of substituted ballots.
5. That due to the facts adverted to above, the casting of votes was stopped and it was never resumed nor
continued. Only Ten (10) voters had actually voted out of One Hundred Fifty One (151) registered voters.
6. That even candidates for Barangay Chairmen and Barangay Kagawad were unable to cast their votes because
the casting of votes was illegally disturbed, disrupted, interrupted and stopped by Alipecry Acop Gaffar despite
the presence of numerous registered voters ready to cast their votes.
x x x x
9. The Election Officer knowing fully that there was really a failure of election in the said precinct recommended
that a special election be called for the said precinct.
10. That unknown to the petitioner, the respondent Board of Election Inspectors, in conspiracy and connivance
with respondent Abdulgaffar Dibaratun, surreptitiously and clandestinely canvassed the election returns and
then illegally proclaimed the respondent Abdulgaffar Dibaratun and issued Certificate of Canvass of Votes and
Proclamation of Winning Candidates dated July 16, 2002 which was ant[e]dated xerox copy of which is hereto
attached as Annex "C" hereof.
5

Respondents therein filed their Answer denying the allegations of herein private respondent. They contended that as 10 voters
had actually voted, there was no failure of elections in the aforementioned precinct. They further contended that the petition was
filed out of time.
In the Resolution dated October 17, 2005, the COMELEC en banc granted the petition, the dispositive portion of which reads:
WHEREFORE, premises considered, the Commission (en banc) RESOLVED, as it hereby RESOLVES, to GIVE DUE COURSE
to the instant petition.
ACCORDINGLY, the proclamation of respondent Abdulgaffar P.M. Dibaratun as the duly elected Punong Barangay of Barangay
Bagoainguid, Tugaya, Lanao del Sur is hereby ANNULLED and he is thus ORDERED to CEASE AND DESIST from exercising
the powers and responsibilities of the said office. Pending the conduct of the special elections yet to be scheduled by this
Commission and until no Punong Barangay has been duly elected and qualified, the incumbent Punong Barangay shall continue
to exercise the powers and duties of such office in a hold-over capacity in accordance with Section 5 of R.A. No. 9164 (An Act
Providing for Synchronized Barangay and Sangguniang Kabataan Elections, Amending Republic Act No. 7160, As Amended,
Otherwise Known as The Local Government Code of 1991, and For Other Purposes).
Let the Office of the Deputy Executive Director for Operations (ODEDO), this Commission, furnish a copy of this Resolution to
the Provincial Election Supervisor of Lanao del Sur for the implementation of the same upon its finality.
6

Dibaratun filed this petition, raising the following issues:
1) The COMELEC en banc gravely abused its discretion amounting to lack or excess of jurisdiction when it
unjustly gave due course to the unmeritorious petition of respondent Abubakar for the simple reason that it was
filed out of time and the validity of the proclamation of petitioner Dibaratun on July 16, 2002 can no longer be
legally assailed after the expiration of ten (10) days.
2) Private respondent Abubakar is estopped to assert whatever rights he has in the election laws/rules of
procedure when he desparately failed to make the proper objections during the casting, counting and canvassing
of votes, and, therefore, the COMELEC en banc gravely abused its discretion amounting to lack or excess of
jurisdiction when it erroneously heard and considered the unmeritorious petition of respondent Abubakar.
3) Public respondent COMELEC en banc gravely abused its discretion amounting to lack or excess of jurisdiction
when it erroneously declared failure of elections in Precinct No. 6A/7A of Barangay Bagoainguid, Tugaya, Lanao
del Sur and called for special elections in the said precinct.
7

The main issue is whether or not the COMELEC en banc committed grave abuse of discretion amounting to lack or excess of
jurisdiction in declaring a failure of elections in Precinct No. 6A/7A of Barangay Bagoainguid, Tugaya, Lanao del Sur and in
annulling the proclamation of petitioner as the elected Punong Barangay.
The petition is unmeritorious.
The 1987 Constitution vests in the COMELEC the broad power to enforce all the laws and regulations relative to the conduct of
elections, as well as the plenary authority to decide all questions affecting elections except the question as to the right to vote.
8

Section 6 of the Omnibus Election Code provides for the instances when the COMELEC may declare failure of elections, thus:
SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other analogous causes the election in
any polling place has not been held on the date fixed, or had been suspended before the hour fixed by law for the closing of the
voting, or after the voting and during the preparation and the transmission of the election returns or in the custody or canvass
thereof, such election results in a failure to elect, and in any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified petition by any interested party and after due notice and
hearing, call for the holding or continuation of the election not held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty
days after the cessation of the cause of such postponement or suspension of the election or failure to elect.
Sec. 6 of the Omnibus Election Code is reflected in Sec. 2, Rule 26 of the COMELEC Rules of Procedure.
In its Resolution, the COMELEC en banc, citing Banaga, Jr. v. Commission on Elections,
9
enumerated the three instances when
a failure of elections may be declared by the Commission:
(1) the election in any polling place has not been held on the date fixed on account of force majeure, violence,
terrorism, fraud or other analogous causes;
(2) the election in any polling place 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
(3) after the voting and during the preparation and transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect on account of force majeure, violence, terrorism, fraud
or other analogous causes.1avvphi1
Before the COMELEC can act on a verified petition seeking to declare a failure of elections, two conditions must concur: (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 elections.
10
The cause of such failure of election could
only be any of the following: force majeure, violence, terrorism, fraud or other analogous causes.
11

The COMELEC en banc based its decision to declare a failure of elections in Precinct No. 6A/7A on the second instance stated
in Section 6 of the Omnibus Election Code, that is, 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.
The COMELEC en banc held that in this case, it was undisputed that after only 10 registered voters cast their votes, the voting
was suspended before the hour fixed by law by reason of violence. This was supported by the affidavits submitted by both
petitioner and private respondent, who only disagreed as to the perpetrator of the violence as each party blamed the other party.
In its Resolution, the COMELEC en banc averred:
The letter of Mayor Abdul Jabbar Mangawan A.P. Balindong, Municipal Mayor of Tugaya, Lanao Del Sur, addressed to Chairman
Benjamin Abalos, Sr., the Joint Affidavit of Norhata M. Ansari and Sahara T. Guimba, Poll Clerk and Third Member, respectively,
of the Board of Election Inspectors of Precinct No. 6A/7A of Barangay Bagoainguid and the Joint Affidavit of PO1 Yahya M.
Dirindigun and PO1 Casary C. Modasir all state that it is the petitioner and his relatives and followers who started the violence
that caused the suspension of the voting.
Meanwhile, the affidavits submitted by the witnesses of the petitioner all state that it is respondent Dibaratun and his followers
and relatives who were the cause of the violence which resulted in the suspension of the election after only ten (10) people
managed to vote.
12

The COMELEC en banc ruled that since both parties agreed that the elections were suspended before the hour fixed by law due
to violence caused by undetermined persons, there was obviously a failure of elections in the aforementioned precinct.
13

The findings of fact of the COMELEC en banc are binding on this Court. The grounds for failure of election (i.e., force majeure,
violence, terrorism, fraud, or other analogous cases) involve questions of fact, which can only be determined by the COMELEC
en banc after due notice to and hearing of the parties.
14
An application for certiorari against actions of the COMELEC is confined
to instances of grave abuse of discretion,
15
amounting to lack or excess of jurisdiction. The COMELEC, as the administrative
agency and specialized constitutional body charged with the enforcement and administration of all laws and regulations relative
to the conduct of an election, plebiscite, initiative, referendum, and recall, has the expertise in its field so that its findings and
conclusions are generally respected by and conclusive on the Court.
16

Thus, the Court agrees with the COMELEC that the elections in Precinct No. 6A/7A were suspended before the hour fixed by law
for the closing of the voting due to violence. Only 10 voters were able to cast their votes out of 151 registered voters; hence, the
votes not cast would have affected the result of the elections. The concurrence of these two conditions caused the COMELEC en
banc to declare a failure of elections. When there is failure of elections, the COMELEC is empowered to annul the elections and
to call for special elections.
17
Public respondent, therefore, did not commit grave abuse of discretion in its resolution of the case.
Moreover, petitioner contends that respondent Abubakars petition for the declaration of failure of elections and to annul the
proclamation of petitioner was in the nature of a pre-proclamation controversy under Sec. 241 of the Omnibus Election Code, but
respondent failed to comply with the procedures therefor. Petitioner also contends that the petition was filed out of time, and that
respondent failed to pay the docket fees on time.
Petitioners arguments lack merit.
Respondent Abubakars petition for declaration of failure of elections falls under Sec. 6 of the Omnibus Election Code. The
allegations in respondents petition constitute one of the instances for the declaration by the COMELEC of failure of elections in
Precinct No. 6A/7A. Hence, the COMELEC en banc took cognizance of the petition pursuant to Sec. 4 of Republic Act No.
7166,
18
thus:
SEC. 4. Postponement, Failure of Elections 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.
19

The Court finds the petition for declaration of failure of elections under Section 6 of the Omnibus Election Code to be in order,
and it was properly disposed of by the COMELEC en banc. Hence, petitioner erred in contending that the petition of respondent
Abubakar was in the nature of a pre-proclamation controversy under Sec. 241 of the Omnibus Election Code, but failed to comply
with the procedures therefor. The issue addressed by the COMELEC en banc was whether the evidence submitted supported
the allegations in the petition that violence suspended the elections in Precinct No. 6A/7A, Barangay Bagoainguid, Tugaya,
Lanao del Sur, before the hour fixed by law for the closing of the voting on July 15, 2002, which resulted in failure of elections.
The issue does not fall under pre-proclamation controversies. The issues that may be ventilated in a pre-proclamation
controversy are enumerated in Sec. 243 of the Omnibus Election Code,
20
thus:
1. Illegal composition or proceedings of the board of canvassers;
2. The canvassed election returns are incomplete, contain material defects, appear to be tampered with or
falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in
Sections 233, 234, 235 and 236 of the Omnibus Election Code;
3. The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously
manufactured or not authentic; and
4. When substitute or fraudulent returns in controverted polling places were canvassed, the results of which
materially affected the standing of the aggrieved candidate or candidates.
21

A petition to declare a failure of elections is neither a pre-proclamation controversy as classified under Sec. 5 (h), Rule 1 of the
Revised COMELEC Rules of Procedure, nor an election case.
22

Further, petitioners basis for the allegation that private respondents petition was filed out of time is Sec. 252 of the Omnibus
Election Code,
23
covering election contests for barangay offices, wherein a petition is filed with the proper municipal or
metropolitan trial court within ten days after the proclamation of the results of the election. Granting that the petition filed was for
an election contest, it would have been filed on time, since it was filed on July 26, 2002, which was within the ten-day period from
the proclamation of petitioner on July 16, 2002.
However, the petition filed by private respondent was not for an election contest under Sec. 252 of the Omnibus Election Code,
but for the declaration of failure of elections under Section 6 of the same Code. The Court notes that the provisions on failure of
elections in Section 6 of the Omnibus Election Code
24
and Sec. 2, Rule 26 of the COMELEC Rules of Procedure do not provide
for a prescriptive period for the filing of a petition for declaration of failure of elections. It appears that the COMELEC en banc has
the discretion whether or not to take cognizance of such petition. In this case, the petition was filed 11 days after the scheduled
election. In its Resolution, the COMELEC en banc declared that petitioners allegation that the petition was filed out of time was
rendered moot and academic by the fact that the petition was already heard by the Commission and submitted for
resolution.
25
The COMELECs resolution of private respondents petition was in keeping with its function to ensure the holding of
free, orderly, honest, peaceful, and credible elections.
Lastly, petitioners allegation that private respondent failed to pay the docket fee on time does not appear to have been raised
before the COMELEC; hence, it cannot be raised for the first time on appeal.
Petitioners allegation of grave abuse of discretion by public respondent COMELEC en banc implies such capricious and
whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, the exercise of the power in an arbitrary
manner by reason of passion, prejudice, or personal hostility; and it must be so patent or 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.
26
It is not present in this
case, as public respondent issued the COMELEC Resolution dated October 17, 2005 based on the evidence on record and the
law on the matter.
WHEREFORE, the instant petition for certiorari is hereby DISMISSED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO
Associate Justice
RENATO C. CORONA
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
On official leave
ROBERTO A. ABAD
*

Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE P. PEREZ
Associate Justice
On leave
JOSE C. MENDOZA
**

Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
*
On official leave.
**
On leave.
1
Under Rule 64 in relation to Rule 65 of the Rules of Court.
2
Also spelled as "Abdulgaffar" in the COMELEC Resolution dated October 17, 2005.
3
Also spelled as "Abubacar" in the COMELEC Resolution dated October 17, 2005.
4
Entitled Abdulcarim Mala Abubacar v. Board of Election Inspectors/Tellers of Precinct No. 6A/7A, Barangay
Bagoainguid, Tugaya, Lanao del Sur.
5
COMELEC Resolution dated October 17, 2005, rollo, pp. 32-33.
6
Rollo, pp. 35-36.
7
Id. at 15-16.
8
Soliva v. Commission on Elections, G.R. No. 141723, April 20, 2001, 357 SCRA 336.
9
G.R. No. 134696, July 31, 2000, 336 SCRA 701.
10
Id.
11
Id.
12
Rollo, p. 34.
13
Id. at 35.
14
Immam v. Commission on Elections, G.R. No. 134167, January 20, 2000, 322 SCRA 866.
15
Matalam v. Commission on Elections, G.R. No. 123230, April 18, 1997, 271 SCRA 733.
16
Supra note 8.
17
Id.
18
An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing
Appropriations Therefor, and for Other Purposes. Approved on November 26, 1991.
19
Emphasis supplied.
20
As amended by Sections 17 to 22 of R.A. No. 7166.
21
Supra note 15.
22
Borja, Jr. v. Commission on Elections, G.R. No. 120140, August 21, 1996, 260 SCRA 604.
23
Sec. 252. Election contest for barangay offices. A sworn petition contesting the election of a barangay officer
shall be filed with the proper municipal or metropolitan trial court by any candidate who has duly filed a certificate
of candidacy and has been voted for the same office, within ten days after the proclamation of the results of the
election. xxxx
24
SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or other analogous
causes the election in any polling place has not been held on the date fixed, or had been suspended before the
hour fixed by law for the closing of the voting, or after the voting and during the preparation and the transmission
of the election returns or in the custody or canvass thereof, such election results in a failure to elect, and in any of
such cases the failure or suspension of election would affect the result of the election, the Commission shall, on
the basis of a verified petition by any interested party and after due notice and hearing, call for the holding or
continuation of the election not held, suspended or which resulted in a failure to elect on a date reasonably close
to the date of the election not held, suspended or which resulted in a failure to elect but not later than thirty days
after the cessation of the cause of such postponement or suspension of the election or failure to elect.
25
Rollo, p. 35.
26
Sangcopan v. Comelec, citing Land Bank of the Philippines v. Court of Appeals, G.R. No. 129368, August 25,
2003, 409 SCRA 455.

The Lawphil Project - Arellano Law Foundation


EN BANC
[G.R. No. 151914. July 31, 2002]
TEODULO M. COQUILLA, petitioner, vs. THE HON. COMMISSION ON
ELECTIONS and MR. NEIL M. ALVAREZ, respondents.
D E C I S I O N
MENDOZA, J .:
This is a petition for certiorari to set aside the resolution,
[1]
dated 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 COMELECen banc denying petitioners 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. 8171
[5]
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 petitioners
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 respondents 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
respondents petition and ordered the cancellation of petitioners certificate of candidacy
on the basis of the following findings:
Respondents 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 petitioners 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 COMELECs
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 same should be considered as having been filed late and should be dismissed.
Private respondents 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 COMELECs 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 petitioners 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 petitioners 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
movants 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,
[16]
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 petitioners 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 respondents petition
for cancellation of petitioners 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. COMELEC
[19]
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,
[21]
but 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 childs parents reside and continues until the same is
abandoned by acquisition of new domicile (domicile of choice).
[24]

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 13
[28]
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 petitioners 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 Elections
[33]
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 Courts 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 candidates lack of residency.
Petitioners 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 petitioners claim, are complete and intact in the records.
III.
The statement in petitioners 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
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.
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.
Indeed, it has been held that a candidates 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 so
[37]
or that the candidate was a natural-born Filipino when in fact he had
become an Australian citizen
[38]
constitutes a ground for the cancellation of a certificate
of candidacy. On the other hand, we held in Salcedo II v. COMELEC
[39]
that a candidate
who used her husbands 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 candidates qualification for an office for
which he filed the certificate of candidacy. This is a misrepresentation of a material fact
justifying the cancellation of petitioners certificate of candidacy. The cancellation of
petitioners 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.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Panganiban, Quisumbing,
Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona,
JJ., concur.



[1]
Per Presiding Commissioner Ralph C. Lantion and concurred in by Commissioners Mehol K. Sadain
and Florentino A. Tuazon, Jr.
[2]
The records do not disclose when petitioner became a U.S. citizen.
[3]
Records, pp. 167-169.
[4]
Petitioners U.S. passport for 1998-2008 shows the following dates of arrival in the Philippines and
dates of departure for the United States: arrival - October 15, 1998, departure - November 3, 1998; arrival
- December 20, 1998 (with no record of corresponding departure); arrival - October 16, 1999, departure -
November 1, 1999; arrival - June 23, 2000, departure - July 6, 2000; arrival - August 5, 2000 (Records,
pp. 227-228).
[5]
This law, entitled AN ACT PROVIDING FOR THE REPATRIATION OF FILIPINO WOMEN WHO HAVE
LOST THEIR PHILIPPINE CITIZENSHIP BY MARRIAGE TO ALIENS AND NATURAL-BORN
FILIPINOS, applies to former natural-born Filipinos who have lost their Philippine citizenship on account
of economic or political necessity. It would appear that petitioner was repatriated under this law on the
ground that he lost his Philippine citizenship on account of economic necessity.
[6]
Petition, Annex O, p. 56.
[7]
Id., Annex C, p. 34.
[8]
Id., Annex H, p. 46.
[9]
Resolution, p. 7-8; Rollo, pp. 30-31 (emphasis added).
[10]
Bulaong v. COMELEC, 220 SCRA 745 (1993).
[11]
Order, pp. 1-2; Rollo, pp. 32-33.
[12]
Siy v. Court of Appeals, 138 SCRA 536 (1985); Continental Cement Corporation v. Court of Appeals,
184 SCRA 728 (1990).
[13]
Guerra Enterprises Company, Inc. v. Court of First Instance of Lanao del Sur, 32 SCRA 314, 317
(1970).
[14]
Manila Trading v. Enriquez, 1 SCRA 1056 (1961); City of Cebu v. Mendoza, 62 SCRA 440 (1975);
Debuque v. Climaco, 99 SCRA 353 (1980); Garcia v. Echiverri, 132 SCRA 631 (1984); Commissioner of
Internal Revenue v. Island Garment Manufacturing Corporation, 153 SCRA 665 (1987); Vda. de
Espina v. Abaya, 196 SCRA 312 (1991).
[15]
A similar rule is found in Rule 19, 3 of the COMELEC Rules of Procedure.
[16]
Villarica v. Court of Appeals, 57 SCRA 24 (1974).
[17]
Jessena v. Hervas, 83 SCRA 799 (1978); Marikina Valley Development Corporation v. Flojo, 251
SCRA 87 (1995); Nieto v. De los Angeles, 109 SCRA 229 (1981).
[18]
Sembrano v. Ramirez, 166 SCRA 30 (1988); Pojas v. Gozo-Dadole, 192 SCRA 575 (1990); Bank of
the Philippine Islands v. Far East Molasses Corporation, 198 SCRA 689 (1991).
[19]
201 SCRA 253 (1991).
[20]
312 SCRA 447 (1999).
[21]
Uytengsu v. Republic, 95 Phil. 890, 894 (1954).
[22]
Nuval v. Guray, 52 Phil. 645 (1928); Gallego v. Verra, 73 Phil. 453 (1941); Romualdez v. RTC, Br. 7,
Tacloban City, 226 SCRA 408 (1993).
[23]
Aquino v. COMELEC, 248 SCRA 400, 420 (1995).
[24]
25 Am. Jur. 2d, 11.
[25]
191 SCRA 229 (1990).
[26]
Petition, p. 6; Rollo, p. 8.
[27]
Id., pp. 9-11; id., pp. 11-13.
[28]
This provision states:
Under the conditions set forth in this Act, there may be admitted in the Philippines immigrants, termed
quota immigrants not in excess of fifty (50) of any one nationality or without nationality for any one
calendar year, except that the following immigrants, termed nonquota immigrants, may be admitted
without regard to such numerical limitations.
The corresponding Philippine Consular representative abroad shall investigate and certify the eligibility of
a quota immigrant previous to his admission into the Philippines. Qualified and desirable aliens who are in
the Philippines under temporary stay may be admitted within the quota, subject to the provisions of the
last paragraph of section 9 of this Act.
(a) The wife or the husband or the unmarried child under twenty-one years of age of a Philippine citizen, if
accompanying or following to join such citizen;
(b) A child of alien parents born during the temporary visit abroad of the mother, the mother having been
previously lawfully admitted into the Philippine for permanent residence, if the child is accompanying or
coming to join a parent and applies for admission within five years from the date of its birth;
(c) A child born subsequent to the issuance of the immigration visa of the accompanying parent, the visa
not having expired;
(d) A woman who was citizen of the Philippines and who lost her citizenship because of her marriage to
an alien or by reason of the loss of Philippine citizenship by her husband, and her unmarried child under
twenty-one years of age, if accompanying or following to join her;
(e) A person previously lawfully admitted into the Philippines for permanent residence, who is returning
from a temporary visit abroad to an unrelinquished residence in the Philippines, (As amended by Sec. 5,
Rep. Act No. 503.)
(f) The wife or the husband or the unmarried child under twenty-one years of age, of an alien lawfully
admitted into the Philippines for permanent residence prior to the date on which this Act becomes
effective and who is resident therein, if such wife, husband, or child applies for admission within a period
of two years following the date on which this Act becomes effective;
(g) A natural born citizen of the Philippines, who has been naturalized in a foreign country, and is
returning to the Philippines for permanent residence, including the spouse and minor children, shall be
considered a non-quota immigrant for purposes of entering the Philippines (As amended by Rep. Act No.
4376, approved June 19, 1965).
[29]
See R. Ledesma, An Outline of Philippine Immigration and Citizenship Laws 135 (1999).
[30]
C.A. No. 63, 2.
[31]
Records, pp. 227-228.
[32]
The COMELEC considered November 10, 2000 as the date of petitioners repatriation. Section 2 of
R.A. No. 8171 provides, however, Repatriation shall be effected by taking the necessary oath of
allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau
of Immigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of
registration and issue the certificate of identification as Filipino citizen to the repatriated citizen.
[33]
257 SCRA 727 (1996).
[34]
G.R. No. 142840, May 7, 2001.
[35]
54 Phil. 645 (1928).
[36]
248 SCRA 400, 429 (1995).
[37]
Abella v. Larazabal, 180 SCRA 509 (1989); Abella v. COMELEC, 201 SCRA 253 (1991).
[38]
Labo, Jr. v. COMELEC, 211 SCRA 297 (1992).
[39]
312 SCRA 447 (1999).
SYLLABI/SYNOPSIS
EN BANC
[G.R. No. 133676. April 14, 1999]
TUPAY T. LOONG, petitioner, vs. COMMISSION ON ELECTIONS and
ABDUSAKUR TAN, respondents, YUSOP JIKIRI, intervenor.
D E C I S I O N
PUNO, J .:
In a bid to improve our elections, Congress enacted R.A. No. 8436 on December
22, 1997 prescribing the adoption of an automated election system. The new system
was used in the May 11, 1998 regular elections held in the Autonomous Region in
Muslim Mindanao (ARMM) which includes the Province of Sulu. Atty. Jose Tolentino,
Jr. headed the COMELEC Task Force to have administrative oversight of the elections
in Sulu.
The voting in Sulu was relatively peaceful and orderly.
[1]
The problem started during
the automated counting of votes for the local officials of Sulu at the Sulu State
College. At about 6 a.m. of May 12, 1998, some election inspectors and watchers
informed Atty. Tolentino, Jr. of discrepancies between the election returns and the votes
cast for the mayoralty candidates in themunicipality of Pata. Some ballots picked at
random by Atty. Tolentino, Jr. confirmed that votes in favor of a mayoralty candidate
were not reflected in the printed election returns. He suspended the automated
counting of ballots in Pata and immediately communicated the problem to the technical
experts of COMELEC and the suppliers of the automated
machine. Afterconsultations, the experts told him that the problem was caused
by the misalignment of the ovals opposite the names of candidates in the local
ballots. They found nothing wrong with the automated machines. The error was
in the printing of the local ballots, as a consequence of which, the automated machines
failed to read them correctly.
[2]

At 12:30 p.m. of the same day, Atty. Tolentino, Jr. called for an emergency
meeting of the local candidates and the military-police officials overseeing the Sulu
elections. Those who attended were the various candidates for governor, namely,
petitioner Tupay Loong, private respondent Abdusakur Tan, intervenor Yusop Jikiri and
Kimar Tulawie. Also in attendance were Brig. Gen. Edgardo Espinosa, AFP, Marine
forces, Southern Philippines, Brig. Gen. Percival Subala, AFP, 3rd Marine Brigade,
Supt. Charlemagne Alejandrino, Provincial Director, Sulu, PNP Command and
congressional candidate Bensandi Tulawie.
[3]

The meeting discussed how the ballots in Pata should be counted in light of the
misaligned ovals. There was lack of agreement. Those who recommended a shift to
manual count were Brig. Generals Espinosa and Subala, PNP Director Alejandrino,
gubernatorial candidates Tan and Tulawie and congressional candidate Bensandi
Tulawie. Those who insisted on an automated count were gubernatorial candidates
Loong and Jikiri. In view of their differences in opinion, Atty. Tolentino, Jr. requested
the parties to submit their written position papers.
[4]

Reports that the automated counting of ballots in other municipalities in Sulu
was not working well were received by the COMELEC Task Force. Local ballots
in five (5) municipalities were rejected by the automated machines. These
municipalities were Talipao, Siasi, Tudanan, Tapul and Jolo. The ballots were
rejected because they had the wrong sequence code.
[5]

Private respondent Tan and Atty. Tolentino, Jr. sent separate communications to
the COMELEC en banc in Manila. Still, on May 12, 1998, Tan requested for the
suspension of the automated counting of ballots throughout the Sulu province.
[6]
On the
same day, COMELEC issued Minute Resolution No. 98-1747 ordering a manual count
but only in the municipality of Pata. The resolution reads:
[7]

"x x x x x x x x x
"In the matter of the Petition dated May 12, 1998 of Abdusakur Tan, Governor,
Sulu, to suspend or stop counting of ballots through automation (sic)
machines for the following grounds, quoted to wit
'1.. The Election Returns for the Municipality of Pata, Province of Sulu-District
II do not reflect or reveal the mandate of the voters:
'DISCUSSIONS
'That the watchers called the attention of our political leaders and candidates
regarding their discovery that the election returns generated after the last
ballots for a precinct is scanned revealed that some candidates obtained zero
votes, among others the Provincial Board Members, Mayor, Vice-Mayor, and
the councilors for the LAKAS-NUCD-UMDP;
'That the top ballot, however, reveals that the ballots contained votes for
Anton Burahan, candidate for Municipal Mayor while the Election Return
shows zero vote;
'That further review of the Election Return reveals that John
Masillam, candidate for Mayor under the LAKAS-NUCD-UMDP-MNLF
obtains (sic) 100% votes of the total number of voters who actually
voted;
'The foregoing discrepancies were likewise noted and confirmed by the
chairmen, poll clerks and members of the Board of Election Inspectors (BEI)
such as Rena Jawan, Matanka Hajirul, Dulba Kadil, Teddy Mirajuli, Rainer
Talcon, Mike Jupakal, Armina Akmad, Romulo Roldan and Lerma Marawali to
mention some;
'The Pata incident can be confirmed by no less than Atty. Jose Tolentino,
Head, Task Force Sulu, whose attention was called regarding the
discrepancies;
'The foregoing is a clear evidence that the automated machine (scanner)
cannot be relied upon as to truly reflect the contents of the ballots. If such
happened in the Municipality of Pata, it is very possible that the same is
happening in the counting of votes in the other municipalities of this
province. If this will not be suspended or stopped, the use of automated
machines will serve as a vehicle to frustrate the will of the sovereign people of
Sulu;
'Wherefore, the foregoing premises considered and in the interest of an
honest and orderly election, it is respectfully prayed of this Honorable
Commission that an Order be issued immediately suspending or stopping the
use of the automated machine (scanner) in the counting of votes for all the
eighteen (18) municipalities in the Province of Sulu and in lieu thereof, to
avoid delay, counting be done through the usual way known and tested by us.'
"While the commission does not agree with the conclusions stated in
the petition, and the failure of the machine to read the votes may have
been occasioned by other factors, a matter that requires
immediate investigation, but in the public interest, the Commission,
'RESOLVED to grant the Petition dated May 12, 1998 and to Order that
the counting of votes shall be done manually in the Municipality of
PATA, the only place in Sulu where the automated machine failed to
read the ballots, subject to notice to all parties concerned."'
Before midnight of May 12,1998, Atty. Tolentino, Jr. was able to send to the
COMELEC en banc his report and recommendation, urging the use of the manual count
in the entire Province of Sulu,viz:
[8]

"The undersigned stopped the counting in the municipality of Pata since he
discovered that votes for a candidate for mayor was credited in favor of the
other candidate. Verification with the Sulu Technical Staff, including Pat
Squires of ES & S, reveals that the cause of the error is the way the ballot was
printed. Aside from misalignment of the ovals and use of codes assigned to
another municipality (which caused the rejection of all local ballots in one
precinct in Talipao), error messages appeared on the screen although the
actual condition of the ballots would have shown a different
message. Because of these, the undersigned directed that counting for all
ballots in Sulu be stopped to enable the Commission to determine the
problem and rectify the same. It is submitted that stopping the counting is
more in consonance with the Commission's mandate than proceeding with an
automated but inaccurate count.
"In view of the error discovered in Pata and the undersigned's order to
suspend the counting, the following documents were submitted to him.
"1. Unsigned letter dated May 12, 1998 submitted by Congressman Tulawie
for manual counting and canvassing;
"2. Petition of Governor Sakur Tan for manual counting;
"3. Position paper of Tupay Loong, Benjamin Loong and Asani Tamang for
automated count;
"4. MNLF Position for automated count; and
"5. Recommendation of General E.V. Espinosa, General PM Subala, and PD
CS Alejandrino for manual count;
"Additional marines have been deployed at the SSC. The undersigned is not
sure if it is merely intended to tame a disorderly crowd, inside and outside
SSC, or a show of force.
"It is submitted that since an error was discovered in a machine which
is supposed to have an error rate of 1: 1,000,000, not a few people would
believe that this error in Pata would extend to the other
municipalities. Whether or not this is true, it would be more prudent
to stay away from a lifeless thing that has sown tension and anxiety
among and between the voters of Sulu.
Respectfully submitted:
12 May 1998
(Sgd.) JOSE M. TOLENTINO,
JR."
The next day, May 13, 1998, COMELEC issued Resolution No. 98-1750 approving
Atty. Tolentino, Jr.'s recommendation and the manner of its implementation as
suggested by Executive Director Resurreccion Z. Borra. The Resolution reads:
[9]

"In the matter of the Memorandum dated 13 May 1998 of Executive Director
Resurreccion Z. Borra, pertinent portion of which is quoted as follows:
"In connection with Min. Res. No. 98-1747 promulgated May 12, 1998 which
resolved to order that the counting of votes shall be done manually in the
municipality of Pata, the only place in Sulu where the automated counting
machine failed to read the ballots, subject to notice to all parties concerned,
please find the following:
"1. Handwritten Memo of Director Jose M. Tolentino, Jr., Task Force
Head, Sulu, addressed to the Executive Director on the subject counting and
canvassing in the municipality of Pata due to the errors of the counting of
votes by the machine brought about by the error in the printing of the ballot,
causing misalignment of ovals and use of codes assigned to another
municipality.
He recommended to revert to the manual counting of votes in the whole of
Sulu. He attached the stand of Congressman Tulawie, Governor Sakur Tan
and recommendation of Brigadier General Edgardo Espinosa, General
Percival Subla, P/Supt. Charlemagne Alejandrino for manual counting. The
position paper of former Governor Tupay Loong, Mr. Benjamin Loong and Mr.
Asani S. Tammang, who are candidates for Governor and Congressman of
1st and 2nd Districts respectively, who wanted the continuation of the
automated counting.
"While the forces of AFP are ready to provide arm (sic) security to our
Comelec officials, BEIs and other deputies, the political tensions and
imminent violence and bloodshed may not be prevented, as per
report received, the MNLF forces are readying their forces to surround
the venue for automated counting and canvassing in Sulu in order that
the automation process will continue.
"Director Borra recommends, that while he supports Minute Resolution No.
98-1747, implementation thereof shall be done as follows:
"1. That all the counting machines from Jolo, Sulu be transported
back by C130 to Manila and be located at the available space at PICC for
purposes of both automated and manual operations. This approach will
keep the COMELEC officials away from violence and bloodshed between
the two camps who are determined to slug each other as above
mentioned in Jolo, Sulu. Only authorized political party and candidate
watchers will be allowed in PICC with proper security, both inside and
outside the perimeters of the venue at PICC.
"2. With this process, there will be an objective analysis and
supervision of the automated and manual operations by both the MIS
and Technical Expert of the ES & S away from the thundering mortars
and the sounds of sophisticated heavy weapons from both sides of the
warring factions.
"3. Lastly, it will be directly under the close supervision and control of
Commission on Elections En Banc.
"RESOLVED:
"1. To transport all counting machines from Jolo, Sulu by C130 to
Manila for purposes of both automated and manual operations, with
notice to all parties concerned;
"2. To authorize the official travel of the board of canvassers
concerned for the conduct of the automated and manual operations of
the counting of votes at PICC under the close supervision and control of
the Commission En Banc. For this purpose, to make available a
designated space at the PICC;
"3. To authorize the presence of only the duly authorized
representative of the political parties concerned and the candidates
watchers both outside and inside the perimeters of the venue at PICC."
Atty. Tolentino, Jr. furnished the parties with copies of Minute Resolution No.
98-1750 and called for another meeting the next day, May 14, 1998, to discuss the
implementation of the resolution.
[10]
The meeting was attended by the parties, by Lt.
Gen. Joselin Nazareno, then the Chief of the AFP Southern Command, the NAMFREL,
media, and the public. Especially discussed was the manner of transporting the ballots
and the counting machines to the PICC in Manila. They agreed to allow each political
party to have at least one (1) escort/ watcher for every municipality to acompany the
flight. Two C130s were used for the purpose.
[11]

On May 15, 1998, the COMELEC en banc issued Minute Resolution No. 98-1796
laying down the rules for the manual count, viz:
[12]

"In the matter of the Memorandum dated 15 May 1998 of Executive Director
Resurreccion Z. Borra, quoted to wit:
'In the implementation of COMELEC Min. Resolution No. 98-1750
promulgated 13 May 1998 in the manual counting of votes of Pata, Sulu, and
in view of the arrival of the counting machines, ballot boxes, documents and
other election paraphernalia for the whole province of Sulu now stored in
PICC, as well as the arrival of the Municipal Board of Canvassers of said
Municipality in Sulu, and after conference with some members of the Senior
Staff and Technical Committee of this Commission, the following are hereby
respectfully recommended:
'1. Manual counting of the local ballots of the automated election system in
Pata, Sulu;
'2. Automated counting of the national ballots considering that there are no
questions raised on the National Elective Officials as pre-printed in the mark-
sensed ballots;
'3. The creation of the following Special Boards of Inspectors under the
supervision of Atty. Jose M. Tolentino, Jr., Task Force Head, Sulu, namely:
a) Atty. Mamasapunod M. Aguam
Ms. Gloria Fernandez
Ms. Esperanza Nicolas
b) Director Ester L. Villaflor-Roxas
Ms. Celia Romero
Ms. Rebecca Macaraya
c) Atty. Zenaida S. Soriano
Ms. Jocelyn Guiang
Ma. Jacelyn Tan
d) Atty. Erlinda C. Echavia
Ms. Theresa A. Torralba
Ms. Ma. Carmen Llamas
e) Director Estrella P. de Mesa
Ms. Teresita Velasco
Ms. Nelly Jaena
'4. Additional Special Board of Inspectors may be created when necesary.
'5. The Provincial Board of Canvassers which by standing Resolution is
headed by the Task Force Sulu Head shall consolidate the manual and
automated results as submitted by the Municipal Boards of Canvassers of the
whole province with two members composed of Directors Estrella P. de Mesa
and Ester L. Villaflor-Roxas;
'6. The political parties and the candidates in Sulu as well as the Party-List
Candidates are authorized to appoint their own watchers upon approval of the
Commission',
'RESOLVED to approve the foregoing recommendations in the
implementation of Min. Resolution No. 98-1750 promulgated on 13 May 1998
providing for the manual counting of votes in the municipality of Pata, Sulu.
'RESOLVED, moreover, considering the recommendation of Comm. Manolo
B. Gorospe, Commissioner-In-Charge, ARMM, to conduct a parallel manual
counting on all 18 municipalities of Sulu as a final guidance of the reliability of
the counting machine which will serve as basis for the proclamation of the
winning candidates and for future reference on the use of the automated
counting machine."'
On May 18, 1998, petitioner filed his objection to Minute Resolution No. 98-
1796, viz:
[13]

"1. The minute resolution under agenda No. 98-1796 violates the provisions of
Republic Act No. 8436 providing for an automated counting of the ballots in
the Autonomous Region in Muslim Mindanao. The automated counting is
mandatory and could not be substituted by a manual counting. Where the
machines are allegedly defective, the only remedy provided for by law is to
replace the machine. Manual counting is prohibited by law;
"2. There are strong indications that in the municipality of Pata the ballots of
the said municipality were rejected by the counting machine because the
ballots were tampered and/or the texture of the ballots fed to the counting
machine are not the official ballots of the Comelec;
"3. The automated counting machines of the Comelec have been designed in
such a way that only genuine official ballots could be read and counted by the
machine;
"4. The counting machines in the other municipalities are in order. In fact, the
automated counting has already started. The automated counting in the
municipalities of Lugus and Panglima Tahil has been completed. There is no
legal basis for the 'parallel manual counting' ordained in the disputed minute
resolution."
Nonetheless, COMELEC started the manual count on the same date, May 18,1998.
On May 25, 1998, petitioner filed with this Court a petition for certiorari and
prohibition under Rule 65 of the Rules of Court. He contended that: (a) COMELEC
issued Minute Resolution Nos. 98-1747, 98-1750, and 98-1798 without prior notice and
hearing to him; (b) the order for manual counting violated R.A. No. 8436; (c) manual
counting gave "opportunity to the following election cheatings," namely:
"(a) The counting by human hands of the tampered, fake and counterfeit
ballots which the counting machines have been programmed to reject
(Section 7, 8 & 9 of Rep. Act 8436).
"(b) The opportunity to substitute the ballots all stored at the PICC. In fact, no
less than the head of the COMELEC Task Force of Sulu, Atty. Jose M.
Tolentino, Jr. who recommended to the COMELEC the anomalous manual
counting, had approached the watchers of petitioners to allow the retrieval of
the ballots, saying "tayo, tayo lang mga watchers, pag-usapan
natin," dearly indicating overtures of possible bribery of the watchers of
petitioner (ANNEX E).
"(c) With the creation by the COMELEC of only 22 Boards of Election
Inspectors to manually count the 1,194 precincts, the manipulators are given
sufficient time to change and tamper the ballots to be manually counted.
"(d) There is the opportunity of delaying the proclamation of the winning
candidates through the usually dilatory moves in a pre-proclamation
controversy because the returns and certificates of canvass are already
human (sic) made. In the automated counting there is no room for any
dilatory pre-proclamation controversy because the returns and the MBC and
PBC certificates of canvass are machine made and immediate proclamation is
ordained thereafter."
Petitioner then prayed:
"WHEREFORE, it is most especially prayed of the Honorable Court that:
"1. upon filing of this petition, a temporary restraining order be issued
enjoining the COMELEC from conducting a manual counting of the ballots of
the 1,194 precincts of the 18 municipalities of the Province of Sulu but instead
proceed with the automated counting of the ballots, preparation of the election
returns and MBC, PBC certificates of canvass and proclaim the winning
candidates on the basis of the automated counting and consolidation of
results;
"2. this petition be given due course and the respondents be required to
answer;
"3. after due hearing, the questioned COMELEC En Banc Minute Resolutions
of May 12, 13, 15, and 17, 1998 be all declared null and void ab initio for
having been issued without jurisdiction and/or with grave abuse of discretion
amounting to lack of jurisdiction and for being in violation of due process of
law;
" 4. the winning candidates of the Province of Sulu be proclaimed on the basis
of the results of the automated counting, automated election returns,
automated MBC and PBC certificates of canvass;
"x x x."
On June 8, 1998, private respondent Tan was proclaimed governor- elect of
Sulu on the basis of the manual count.
[14]
Private respondent garnered 43,573
votes. Petitioner was third with 35,452 votes or a difference of 8,121 votes.
On June 23, 1998, this Court required the respondents to file their Comment to the
petition and directed the parties "to maintain the status quo prevailing at the time of the
filing of the petition."
[15]
The vice-governor elect was allowed to temporarily discharge the
powers and functions of governor.
On August 20, 1998, Yusop Jikiri, the LAKAS-NUCD-UMDP-MNLF candidate for
governor filed a motion for intervention and a Memorandum in Intervention.
[16]
The result
of the manual count showed he received 38,993 votes and placed second. Similarly, he
alleged denial of due process, lack of factual basis of the COMELEC resolutions and
illegality of manual count in light of R.A. No. 8436. TheCourt noted his
intervention.
[17]
As similar petition for intervention filed by Abdulwahid Sahidulla, a
candidate for vice-governor, on October 7, 1998 was denied as it was filed too late.
In due time, the parties filed their respective Comments. On September 25, 1998,
the Court heard the parties in oral arguments
[18]
which was followed by the submission
of their written memoranda.
The issues for resolution are the following:
1. Whether or not a petition for certiorari and prohibition under Rule 65 of the Rules of
Court is the appropriate remedy to invalidate the disputed COMELEC resolutions.
2. Assuming the appropriateness of the remedy, whether or not COMELEC committed
grave abuse of discretion amounting to lack of jurisdiction in ordering a manual
count.
2.a. Is there a legal basis for the manual count?
2-b. Are its factual bases reasonable?
2.c. Were the petitioner and the intervenor denied due process by the COMELEC
when it ordered a manual count?
3. Assuming the manual count is illegal and that its result is unreliable, whether or not
it is proper to call for a special election for the position of governor of Sulu.
We shall resolve the issues in seriatim.
First. We hold that certiorari is the proper remedy of the petitioner. Section 7,
Article IX(A) of the 1987 Constitution states that if "unless 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." 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.
[19]
Contrariwise, administrative orders of the COMELEC are not, as a general
rule, fit subjects of a petition for certiorari. The main issue in the case at bar is whether
the COMELEC gravely abused its discretion when it ordered a manual count of the
1998 Sulu local elections. A resolution of the issue will involve an interpretation of R.A.
No. 8436 on automated election in relation to the broad power of the COMELEC under
Section 2(1), Article IX(C) of the Constitution "to enforce and administer all laws and
regulations relative to the conduct of an election x x x." The issue is not only legal but
one of first impression and undoubtedly suffused with significance to the entire
nation. It is adjudicatory of the right of the petitioner, the private respondent and the
intervenor to the position of governor of Sulu. These are enough considerations to call
for an exercise of the certiorari jurisdiction of this Court.
Second. The big issue, one of first impression, is whether the COMELEC
committed grave abuse of discretion amounting to lack of jurisdiction when it ordered a
manual count in light of R.A. No. 8436. The post election realities on ground will show
that the order for a manual count cannot be characterized as arbitrary, capricious or
whimsical.
a. It is well established that the automated machines failed to read correctly the ballots
in the municipality of Pata. A mayoralty candidate, Mr. Anton Burahan, obtained
zero votes despite the representations of the Chairman of the Board of Election
Inspectors and others that they voted for him. Another candidate garnered 100% of
the votes.
b. It is likewise conceded that the automated machines rejected and would not count
the local ballots in the municipalities of Talipao, Siasi, Indanan, Tapal and Jolo.
c. These flaws in the automated counting of local ballots in the municipalities of Pata,
Talipao, Siasi, Indanan, Tapal and Jolo were carefully analyzed by the technical
experts of COMELEC and the supplier of the automated machines. All of them
found nothing wrong with the automated machines. They traced the problem to the
printing of local ballots by the National Printing Office. In the case of the
municipality of Pata, it was discovered that the ovals of the local ballots were
misaligned and could not be read correctly by the automated machines. In the case
of the municipalities of Talipao, Siasi, Indanan, Tapal and Jolo, it turned out that the
local ballots contained the wrong sequence code. Each municipality was assigned
a sequence code as a security measure. Ballots with the wrong sequence code
were programmed to be rejected by the automated machines.
It is plain that to continue with the automated count in these five (5) municipalities
would result in a grossly erroneous count. It cannot also be gainsaid that the count in
these five (5) municipalities will affect the local elections in Sulu. There was no need for
more sampling of local ballots in these municipalities as they suffered from the same
defects. All local ballots in Pata with misaligned ovals will be erroneously read by the
automated machines. Similarly, all local ballots in Talipao, Siasi, Indanan, Tapal and
Jolo with wrong sequence codes are certain to be rejected by the automated
machines. There is no showing in the records that the local ballots in these five (5)
municipalities are dissimilar which could justify the call for their greater sampling.
Third. These failures of automated counting created post election tension in Sulu,
a province with a history of violent elections. COMELEC had to act decisively in view of
the fast deteriorating peace and order situation caused by the delay in the counting of
votes. The evidence of this fragile peace and order cannot be downgraded. In his
handwritten report to the COMELEC dated May 12, 1998, Atty. Tolentino, Jr. stated:
"x x x
"Additional marines have been deployed at the SSC. The undersigned is not
sure if it is merely intended to tame a disorderly crowd inside and outside
SSC, or a show of force.
"It is submitted that since an error was discovered in a machine which is
supposed to have an error rate of 1:1,000,000, not a few people would believe
that this error in Pata would extend to the other municipalities. Whether or not
this is true, it would be more prudent to stay away from a lifeless thing
that has sown tension and anxiety among and between the voters of
Sulu."
Executive Director Resurreccion Z. Borra, Task Force Head, ARMM in his May 13,1998
Memorandum to the COMELEC likewise stated:
"x x x
"While the forces of AFP are ready to provide arm (sic) security to our
COMELEC officials, BEI's and other deputies, the political tensions and
imminent violence and bloodshed may not be prevented, as per
report received, the MNLF forces are readying their forces to surround
the venue for automated counting and canvassing in Sulu in order that
automation process will continue."
Last but not the least, the military and the police authorities unanimously recommended
manual counting to preserve peace and order. Brig. Gen. Edgardo V. Espinosa,
Commanding General, Marine Forces Southern Philippines, Brig. Gen. Percival M.
Subala, Commanding General, 3rd Marine Brigade, and Supt. Charlemagne S.
Alejandrino, Provincial Director, Sulu PNP Command explained that it "x x x will not only
serve the interest of majority of the political parties involved in the electoral process but
also serve the interest of the military and police forces in maintaining peace and order
throughout the province of Sulu."
An automated count of the local votes in Sulu would have resulted in a wrong count,
a travesty of the sovereignty of the electorate. Its aftermath could have been a
bloodbath. COMELEC avoided this imminent probability by ordering a manual count of
the votes. It would be the height of irony if the Court condemns COMELEC for aborting
violence in the Sulu elections.
Fourth. We also find that petitioner Loong and intervenor Jikiri were not denied due
process. The Tolentino memorandum clearly shows that they were given every
opportunity to oppose the manual count of the local ballots in Sulu. They were orally
heard. They later submitted written position papers. Their representatives escorted the
transfer of the ballots and the automated machines from Sulu to Manila. Their watchers
observed the manual count from beginning to end. We quote the Tolentino
memorandum, viz:
"x x x
"On or about 6:00 a.m. of May 12, 1998, while automated counting of all the
ballots for the province of Sulu was being conducted at the counting center
located at the Sulu State College, the COMELEC Sulu Task Force Head (TF
Head) proceeded to the room where the counting machine assigned to the
municipality of Pata was installed to verify the cause of the commotion therein.
"During the interview conducted by the TF Head, the members of the Board of
Election Inspectors (BEI) and watchers present in said room stated that the
counting machine assigned to the municipality of Pata did not reflect the true
results of the voting thereat. The members of the BEI complained that their
votes were not reflected in the printout of the election returns since per
election returns of their precincts, the candidate they voted for obtained
"zero". After verifying the printout of some election returns as against the
official ballots, the TF Head discovered that votes cast in favor of a mayoralty
candidate were credited in favor of his opponents.
"In his attempt to remedy the situation, the TF Head suspended the counting
of all ballots for said municipality to enable COMELEC field technicians to
determine the cause of the technical error, rectify the same, and thereafter
proceed with automated counting. In the meantime, the counting of the
ballots for the other municipalities proceeded under the automated system.
"Technical experts of the supplier based in Manila were informed of the
problem and after numerous consultations through long distance calls, the
technical experts concluded that the cause of the error was in the manner the
ballots for local positions were printed by the National Printing Office (NPO),
namely, that the ovals opposite the names of the candidates were not properly
aligned. As regards the ballots for national positions, no error was found.
"Since the problem was not machine-related, it was obvious that the use of
counting machines from other municipalities to count the ballots of the
municipality of Pata would still result in the same erroneous count. Thus, it
was found necessary to determine the extent of the error in the ballot printing
process before proceeding with the automated counting.
"To avoid a situation where proceeding with automation will result in an
erroneous count, the TF Head, on or about 11:45 a.m. ordered the
suspension of the counting of all ballots in the province to enable him to call a
meeting with the heads of the political parties which fielded candidates in the
province, inform them of the technical error, and find solutions to the problem.
"On or about 12:30 p.m., the TF Head presided over a conference at Camp
General Bautista (3rd Marine Brigade) to discuss the process by which the will
of the electorate could be determined. Present during the meeting were:
1. Brig. Gen. Edgardo Espinoza
Marine Forces, Southern Philippines
2. Brig. Gen. Percival Subala
3rd Marine Brigade
3. Provincial Dir. Charlemagne Alejandrino
Sulu PNP Command
4. Gubernatorial Candidate Tupay Loong
LAKAS-NUCD Loong Wing
5. Gubernatorial Candidate Abdusakur Tan
LAKAS-NUCD Tan Wing
6. Gubernatorial Candidate Yusop Jikiri
LAKAS-NUCD-MNLF Wing
7. Gubernatorial Candidate Kimar Tulawie
LAMMP
8. Congressional Candidate Bensaudi Tulawie
LAMMP
"During said meeting, all of the above parties verbally advanced their
respective positions. Those in favor of a manual count were:
1. Brig. Gen. Edgardo Espinoza
2. Brig. Gen. Percival Subala
3. Provincial Dir. Charlemagne Alenjandrino
4. Gubernatorial Candidate Abdusakur Tan
5. Gubernatorial Candidate Kimar Tulawie
6. Congressional Candidate Bensaudi Tulawie and those in favor of an
automated count were:
1. Gubernatorial Candidate Tupay Loong
2. Gubernatorial Candidate Yusop Jikiri
"Said parties were then requested by the TF Head to submit their
respective position papers so that the same may be forwarded to the
Commission en banc, together with the recommendations of the TF
Head.
'The TF Head returned to the counting center at the Sulu State College and
called his technical staff to determine the extent of the technical error and to
enable him to submit the appropriate recommendation to the Commission en
banc.
"Upon consultation with the technical staff, it was discovered that in the
Municipality of Talipao, some of the local ballots were rejected by the
machine. Verification showed that while the ballots were genuine, ballot
paper bearing a wrong "sequence code" was used by the NPO during the
printing process.
"Briefly, the following is the manner by which a sequence code" determined
genuineness of a ballot. A municipality is assigned a specific machine (except
for Jolo, which was assigned two (2) machines, and sharing of one (1)
machine by two (2) municipalities, namely, H.P. Tahil and Maimbung,
Pandami and K. Caluang, Pata and Tongkil and Panamao and Lugus). A
machine is then assigned a specific "sequence code" as one of the security
features to detect whether the ballots passing through it are genuine. Since a
counting machine is programmed to read the specific "sequence code"
assigned to it, ballots which bear a "sequence code" assigned to another
machine/municipality, even if said ballots were genuine, will be rejected by the
machine.
"Other municipalities, such as Siasi, Indanan, Tapul and Jolo also had the
same problem of rejected ballots. However, since the machine operators
were not aware that one of the reasons for rejection of ballots is the use of
wrong "sequence code", they failed to determine whether the cause for
rejection of ballots for said municipalities was the same as that for the
municipality of Talipao.
"In the case of 'misaligned ovals', the counting machine will not reject the
ballot because all the security features, such as "sequence code", are present
in the ballot, however, since the oval is misaligned or not placed in its proper
position, the machine will credit the shaded oval for the position where the
machine is programmed to "read" the oval. Thus, instead of rejecting the
ballot, the machine will credit the votes of a candidate in favor of his opponent,
or in the adjacent space where the oval should be properly placed.
"It could not be determined if the other municipalities also had the same
technical error in their official ballots since the "misaligned ovals" were
discovered only after members of the Board of Election Inspectors of the
Municipality of Pata complained that their votes were not reflected in the
printout of the election returns.
"As the extent or coverage of the technical errors could not be determined, the
TF Head, upon consultation with his technical staff, was of the belief that it
would be more prudent to count the ballots manually than to proceed with an
automated system which will result in an erroneous count.
"The TF Head thus ordered the indefinite suspension of counting of ballots
until such time as the Commission shall have resolved the petition/position
papers to be submitted by the parties. The TF Head and his staff returned to
Camp General Bautista to await the submission of the position papers of the
parties concerned.
"Upon receipt of the position papers of the parties, the TF Head faxed
the same in the evening of May 12, 1998, together with his handwritten
recommendation to proceed with a manual count." Attached are copies of
the recommendations of the TF Head (Annex "1"), and the position papers of
the Philippine Marines and Philippine National Police (Annex "2"), LAKAS-
NUCD Tan Wing Annex (Annex "3"), Lakas-NUCD Loong Wing (Annex "4"),
LAKAS-NUCD-MNLF Wing (Annex "5") and LAMMP (Annex "6"). Said
recommendations and position papers were the bases for the promulgation of
COMELEC Minute Resolution No. 98-1750 dated May 13, 1998 (Annex "7"),
directing among other things, that the ballots and counting machines be
transported by C130 to Manila for both automated and manual operations.
"Minute Resolution No. 98-1750 was received by the TF Head through
fax on or about 5:30 in the evening of May 13, 1998. Copies were then
served through personal delivery to the heads of the political
parties, with notice to them that another conference will be conducted at
the 3rd Marine Brigade on May 14, 1998 at 9:00 o'clock in the morning,
this time, with Lt. General Joselin Nazareno, then AFP Commander,
Southern Command. Attached is a copy of said notice (Annex
"8") bearing the signatures of candidates Tan (Annex "8-A") and Loong
(Annex "8-B"), and the representatives of candidates Tulawie (Annex "8-
C") and Jikiri (Annex "8-D").
"On May 14, 1998, the TF Head presided over said conference in the
presence of the heads of the political parties of Sulu, together with their
counsel, including Lt. Gen. Nazareno, Brig. Gen. Subala, representatives of
the NAMFREL, media and the public.
"After hearing the sides of all parties concerned, including that of
NAMFREL, the procedure by which the ballots and counting machines
were to be transported to Manila was finalized, with each political
party authorized to send at least one (1) escort/watcher for every
municipality to accompany the ballot boxes and counting machines
from the counting center at the Sulu State College to the Sulu Airport up
to the PICC, where the COMELEC was then conducting its
Senatorial Canvass. There being four parties, a total of seventy-two (72)
escorts/watchers accompanied the ballots and counting machines.
"Two C130s left Sulu on May 15, 1998 to transport all the ballot boxes
and counting machines, accompanied by all the authorized
escorts. Said ballots boxes reached the PICC on the same day, with all
the escorts/watchers allowed to station themselves at the ballot box
storage area. On May 17, 1998, another C130 left Sulu to ferry the
members of the board of canvassers."
Fifth. The evidence is clear that the integrity of the local ballots was safeguarded
when they were transferred from Sulu to Manila and when they were manually counted.
As shown by the Tolentino memorandum, representatives of the political parties
escorted the transfer of ballots from Sulu to PICC. Indeed, in his May 14, 1992 letter to
Atty. Tolentino, Jr., petitioner Tupay Loong himself submitted the names of his
representatives who would accompany the ballot boxes and other election
paraphernalia, viz:
[20]

"Dear Atty. Tolentino:
"Submitted herewith are the names of escort(s) to accompany the ballot boxes
and other election pharaphernalia to be transported to COMELEC, Manila, to
wit:
1. Jolo - Joseph Lu
2. Patikul - Fathie B. Loong
3. Indanan - - Dixon Jadi
4. Siasi - Jamal Ismael
5. K. Kaluang - Enjimar Abam
6. Pata - Marvin Hassan
7. Parang - Siyang Loong
8. Pangutaran - Hji. Nasser Loong
9. Marunggas - Taib Mangkabong
10. Luuk - Jun Arbison
11. Pandami - Orkan Osman
12. Tongkil - Usman Sahidulla
13. Tapul - Alphawanis Tupay
14. Lugus - Patta Alih
15. Maimbong - Mike Bangahan
16. P. Estino - Yasir lbba
17. Panamao - Hamba Loong
18. Talipao - Ismael Sali
"Hoping for your kind and (sic) consideration for approval on this matter.
"Thank you.
Very truly yours,
(Sgd.) Tupay T. Loong
(Sgd.) Asani S. Tammang"
The ballot boxes were consistently under the watchful eyes of the parties'
representatives. They were placed in an open space at the PICC. The watchers
stationed themselves some five (5) meters away from the ballot boxes. They watched
24 hours a day and slept at the PICC.
[21]

The parties' watchers again accompanied the transfer of the ballot boxes from PICC
to the public schools of Pasay City where the ballots were counted. After the counting
they once more escorted the return of the ballot boxes to PICC.
[22]

In fine, petitioner's charge that the ballots could have been tampered with before the
manual counting is totally unfounded.
Sixth. The evidence also reveals that the result of the manual count is reliable.
It bears stressing that the ballots used in the case at bar were specially made to suit
an automated election. The ballots were uncomplicated. They had fairly large ovals
opposite the names of candidates. A voter needed only to check the oval opposite the
name of his candidate. When the COMELEC ordered a manual count of the votes, it
issued special rules as the counting involved a different kind of ballot, albeit, more
simple ballots. The Omnibus Election Code rules on appreciation of ballots cannot
apply for they only apply to elections where the names of candidates are handwritten in
the ballots. The rules were spelled out in Minute Resolution 98-1798, viz:
[23]

"In the matter of the Memorandum dated 17 May 1998 of Executive Director
Resurreccion Z. Borra, re procedure of the counting of votes for Sulu for the
convening of the Board of Election Inspectors, the Municipal Board of
Canvassers and the Provincial Board of Canvassers on May 18, 1998 at 9:00
a.m. at the Philippine International Convention Center (PICC),
'RESOLVED to approve the following procedure for the counting of votes for
Sulu at the PICC:
'I. Common Provisions:
'1. Open the ballot box, retrieve the Minutes of Voting and the
uncounted ballots or the envelope containing the counted ballots
as the case may be;
'2. Segregate the national ballots from the local ballots;
'3. Count the number of pieces of both the national and local ballots
and compare the same with the number of votes who actually
voted as stated in the Minutes of Voting:
- If there is no Minutes of Voting, refer to the Voting Records at the
back of the VRRs to determine the number of voters who actually
voted.
- If there are more ballots than the number of voters who actually
voted, the poll clerk shall draw out as many local and national
ballots as may be equal to the excess and place them in the
envelope for excess ballots.
'II Counting of Votes
'A. National Ballots:
'1. If the national ballots have already been counted, return the
same inside the envelope for counted ballots, reseal and place
the envelope inside the ballot box;
'2. If the national ballots have not yet been counted, place them
inside an envelope and give the envelope through a liaison officer
to the machine operator concerned for counting and printing of the
election returns;
'3. The machine operator shall affix his signature and thumbmark
thereon, and return the same to the members of the BEI
concerned for their signatures and thumbmarks;
'4. The said returns shall then be placed in corresponding envelopes for
distribution;
'B. Local Ballots:
'1. Group the local ballots in piles of fifty (50);
'2. The Chairman shall read the votes while the poll clerk and the
third member shall simultaneously accomplish the election returns
and the tally board respectively.
'If the voters shaded more ovals than the number of positions
to be voted for, no vote shall be counted in favor of any
candidate.
'3. After all the local ballots shall have been manually counted, the
same shall be given to the machine operator concerned for
counting by the scanning machine. The machine operator shall
then save the results in a diskette and print out the election
returns for COMELEC reference.
'4. The BEI shall accomplish the certification portion of the election returns
and announce the results;
'5. Place the election returns in their respective envelopes and distribute
them accordingly;
'6. Return all pertinent election documents and paraphernalia inside the
ballot box.
'III. Consolidation of Results
'A. National Ballots
'1. The results of the counting for the national ballots for each
municipality shall be consolidated by using the ERs of the
automated election system;
'2. After the consolidation, the Machine Operator shall print the
certificate of canvass by municipality and statement of votes by
precinct;
'3. To consolidate the provincial results, the MO shall load all the diskettes
used in the scanner to the ERs;
'4. The MO shall print the provincial certificate of canvass and the SOV by
municipality;
'5. In case there is system failure in the counting and/or
consolidation of the results, the POBC/MOBC shall revert to
manual consolidation.
'B. Local Ballots
'1. - The consolidation of votes shall be done manually by the
Provincial/Municipal Board of Canvassers;
'2. The proclamation of winning candidates shall be based on the manual
consolidation.
'RESOLVED, moreover, that the pertinent provisions of COMELEC
Resolution Nos. 2971 and 3030 shall apply.
'Let the Executive Director implement this resolution."'
As aforestated, five (5) Special Boards were initially created under Atty. Tolentino,
Jr. to undertake the manual counting,
[24]
viz:
"a) Atty. Mamasapunod M. Aguam
Ms. Gloria Fernandez
Ms. Esperanza Nicolas
b) Director Ester L. Villaflor-Roxas
Ms. Celia Romero
Ms. Rebecca Macaraya
c) Atty. Zenaida S. Soriano
Ms. Jocelyn Guiang
Ma. Jocelyn Tan
d) Atty. Erlinda C. Echavia
Ms. Teresa A. Torralba
Ms. Ma. Carmen Llamas
e) Director Estrella P. de Mesa
Ms. Teresita Velasco
Ms. Nelly Jaena"
Later, the COMELEC utilized the services of 600 public school teachers from Pasay
City to do the manual counting. Five (5) elementary schools served as the venues of
the counting, viz:
[25]

"1. Gotamco Elementary School, Gotamco Street, Pasay City - for the
municipalities of Indanan, Pangutaran, Panglima Tahil, Maimbung;
"2. Zamora Elementary School, Zamora Street, Pasay City - for the
municipalities of Jolo, Talipao, Panglima Estino, and Tapul;
"3. Epifanio Elementary School, Tramo Street, Pasay City - for the
municipalities of Parang, Lugus, Panamao;
"4. Burgos Elementary School, Burgos Street, Pasay City - for the
municipalities of Luuk and Tongkil;
5. Palma Elementary School - for the municipalities of Siasi and Kalingalang
Caluang."
From beginning to end, the manual counting was done with the watchers of
the parties concerned in attendance. Thereafter, the certificates of canvass were
prepared and signed by the City/Municipal Board of Canvassers composed of the
Chairman, Vice-Chairman, and Secretary. They were also signed by the
parties' watchers.
[26]

The correctness of the manual count cannot therefore be doubted. There was no
need for an expert to count the votes. The naked eye could see the checkmarks
opposite the big ovals. Indeed, nobody complained that the votes could not be read and
counted. The COMELEC representatives had no difficulty counting the votes. The 600
public school teachers of Pasay City had no difficulty. The watchers of the parties had
no difficulty. Petitioner did not object to the rules on manual count on the ground that
the ballots cannot be manually counted. Indeed, in his original Petition, petitioner did
not complain that the local ballots could not be counted by a layman. Neither did the
intervenor complain in his petition for intervention. The allegation that it will take a
trained eye to read the ballots is more imagined than real.
This is not all. As private respondent Tan alleged, the manual count could not have
been manipulated in his favor because the results show that most of his political
opponents won. Thus, "the official results show that the two congressional seats in Sulu
were won by Congressman Hussin Amin of the LAKAS-MNLF Wing for the 1
st
District
and Congressman Asani Tammang of the LAKAS-Loong Wing for the 2nd District. In
the provincial level, of the eight (8) seats for the Sangguniang Panlalawigan, two (2)
were won by the camp of respondent Tan; three (3) by the camp of petitioner Loong;
two (2) by the MNLF; and one (1) by LAMMP. In the mayoral race, seven (7) out of
eighteen (18) victorious municipal mayors were identified with respondent Tan; four (4)
with petitioner Loong; three (3) with the MNLF; two (2) with LAMMP and one (1) with
REPORMA."
[27]
There is logic to private respondent Tan's contention that if the manual
count was tampered, his candidates would not have miserably lost.
Seventh. We further hold that petitioner cannot insist on automated counting under
R.A. No. 8436 after the machines misread or rejected the local ballots in five (5)
municipalities in Sulu. Section 9 of R.A. No. 8436 provides:
"SEC. 9. Systems Breakdown in the Counting Center. In the event of a
systems breakdown of all assigned machines in the counting center, the
Commission shall use any available machine or any component thereof from
another city/municipality upon approval of the Commission En Banc or any of
its divisions.
The transfer of such machines or any component thereof shall be undertaken
in the presence of representatives of political parties and citizens' arm of the
Commission who shall be notified by the election officer of such transfer.
There is a systems breakdown in the counting center when the machine fails
to read the ballots or fails to store/save results or fails to print the results after
it has read the ballots; or when the computer fails to consolidate election
results/reports or fails to print election results/reports after consolidation."
As the facts show, it was inutile for the COMELEC to use other machines to count the
local votes in Sulu. The errors in counting were due to the misprinting of ovals and the
use of wrong sequence codes in the local ballots. The errors were not machine-
related. Needless to state, to grant petitioner's prayer to continue the machine count of
the local ballots will certainly result in an erroneous count and subvert the will of the
electorate.
Eighth. In enacting R.A. No. 8436, Congress obviously failed to provide a remedy
where the error in counting is not machine-related for human foresight is not all-
seeing. We hold, however, that the vacuum in the law cannot prevent the COMELEC
from levitating above the problem. Section 2(1) of Article IX(C) of the Constitution gives
the COMELEC the broad power "to enforce and administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum and
recall." Undoubtedly, the text and intent of this provision is to have COMELEC all the
necessary and incidental powers for it to achieve the objective of holding free, orderly,
honest, peaceful, and credible elections. Congruent to this intent, this Court has not
been niggardly in defining the parameters of powers of COMELEC in the conduct of our
elections. Thus, we held in Sumulong v. COMELEC:
[28]

"Politics is a practical matter, and political questions must be dealt with
realistically - not from the standpoint of pure theory. The Commission on
Elections, because of its fact-finding facilities, its contacts with political
strategists, and its knowledge derived from actual experience in dealing with
political controversies, is in a peculiarly advantageous position to decide
complex political questions x x x. There are no ready made formulas for
solving public problems. Time and experience are necessary to evolve
patterns that will serve the ends of good government. In the matter of the
administration of laws relative to the conduct of election, x x x we must not by
any excessive zeal take away from the Commission on Elections the initiative
which by constitutional and legal mandates properly belongs to it."
In the case at bar, the COMELEC order for a manual count was not only reasonable. It
was the only way to count the decisive local votes in the six (6) municipalities of Pata,
Talipao, Siasi, Tudanan, Tapul and Jolo. The bottom line is that by means of the
manual count, the will of the voters of Sulu was honestly determined. We cannot kick
away the will of the people by giving a literal interpretation to R.A. 8436. R.A. 8436 did
not prohibit manual counting when machine count does not work. Counting is part and
parcel of the conduct of an election which is under the control and supervision of the
COMELEC. It ought to be self-evident that the Constitution did not envision a
COMELEC that cannot count the result of an election.
Ninth. Our elections are not conducted under laboratory conditions. In running for
public offices, candidates do not follow the rules of Emily Post. Too often, COMELEC
has to make snap judgments to meet unforseen circumstances that threaten to subvert
the will of our voters. In the process, the actions of COMELEC may not be impeccable,
indeed, may even be debatable. We cannot, however, engage in a swivel chair
criticism of these actions often taken under very difficult circumstances. Even more, we
cannot order a special election unless demanded by exceptional circumstances. Thus,
the plea for this Court to call a special election for the governorship of Sulu is
completely off-line. The plea can only be grounded on failure of election. Section 6 of
the Omnibus Election Code tells us when there is a failure of election, viz:
"Sec. 6. Failure of election. - If on account of force majeure, terrorism, fraud,
or other analogous causes, the election in any polling place has not been held
on the date fixed, or had been suspended before the hour fixed by law for the
closing of the voting, or after the voting and during the preparation and the
transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such cases the failure or
suspension of election would affect the result of the election, the Commission
shall on the basis of a verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of the election, not held,
suspended or which resulted in a failure to elect but not later than thirty days
after the cessation of the cause of such postponement or suspension of the
election or failure to elect."
To begin with, the plea for a special election must be addressed to the COMELEC and
not to this Court. Section 6 of the Omnibus Election Code should be read in relation to
Section 4 of R.A. No. 7166 which provides:
"Sec. 4. Postponement, Failure of Election and Special Elections. - The
postponement, declaration of failure of elections 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 en banc by a majority vote of its
members. The causes for the declaration of a failure of election may occur
before or after casting of votes or on the day of the election."
The grounds for failure of election - force majeure, terrorism, fraud or other analogous
causes - clearly involve questions of fact. It is for this reason that they can only be
determined by the COMELEC en banc after due notice and hearing to the parties. In
the case at bar, petitioner never asked the COMILEC en banc to call for a special
election in Sulu. Even in his original petition with this Court, petitioner did not pray for a
special election. His plea for a special election is a mere afterthought. Too late in the
day and too unprocedural. Worse, the grounds for failure of election are inexistent. The
records show that the voters of Sulu were able to cast their votes freely and fairly. Their
votes were counted correctly, albeit manually. The people have spoken. Their
sovereign will has to be obeyed.
There is another reason why a special election cannot be ordered by this Court. To
hold a special election only for the position of Governor will be discriminatory and will
violate the right of private respondent to equal protection of the law. The records show
that all elected officials in Sulu have been proclaimed and are now discharging their
powers and duties. Thus, two (2) congressmen, a vice-governor, eight (8) members of
the Sangguniang Panlalawigan and eighteen (18) mayors, numerous vice-mayors and
municipal councilors are now serving in their official capacities. These officials were
proclaimed on the basis of the same manually counted votes of Sulu. If manual
counting is illegal, their assumption of office cannot also be countenanced. Private
respondent's election cannot be singled out as invalid for alikes cannot be
treated unalikes.
A final word. Our decision merely reinforces our collective efforts to endow
COMELEC with enough power to hold free, honest, orderly and credible elections. A
quick flashback of its history is necessary lest our efforts be lost in the labyrinth of time.
The COMELEC was organized under Commonwealth Act No. 607 enacted on
August 22,1940. The power to enforce our election laws was originally vested in the
President and exercised through the Department of Interior. According to Dean
Sinco,
[29]
the view ultimately emerged that an independent body could better protect the
right of suffrage of our people. Hence, the enforcement of our election laws, while an
executive power, was transferred to the COMELEC.
From a statutory creation, the COMELEC was transformed to a constitutional body
by virtue of the 1940 amendments to the 1935 Constitution which took effect on
December 2, 1940. COMELEC was generously granted the power to "have exclusive
charge of the enforcement and administration of all laws relative to the conduct of
elections x x x."
[30]

Then came the 1973 Constitution. It further broadened the powers of COMELEC by
making it the sole Judge of all election contests relating to the election, returns and
qualifications of members of the national legislature and elective provincial and city
officials.
[31]
In fine, the COMELEC was given judicial power aside from its traditional
administrative and executive functions.
The 1987 Constitution quickened this trend of strengthening the
COMELEC. Today, COMLEC enforces and administers all laws and regulations
relative to the conduct of elections, plebiscites, initiatives, referenda and
recalls. Election contests involving regional, provincial and city elective officials are
under its exclusive original jurisdiction. All contests involving elective municipal and
barangay officials are under its appellate jurisdiction.
[32]

Our decisions have been in cadence with the movement towards empowering the
COMELEC in order that it can more effectively perform its duty of safeguarding the
sanctity of our elections. In Cauton vs. COMELEC,
[33]
we laid down this liberal
approach, viz:
x x x
'The purpose of the Revised Election Code is to protect the integrity of
elections and to suppress all evils that may violate its purity and defeat the will
of the voters. The purity of the elections is one of the most fundamental
requisites of popular government. The Commission on Elections, by
constitutional mandate, must do everything in its power to secure a fair and
honest canvass of the votes cast in the elections. In the performance of its
duties, the Commission must be given a considerable latitude in adopting
means and methods that will insure the accomplishment of the great objective
for which it was created -- to promote free, orderly, and honest elections. The
choice of means taken by the Commission on Elections, unless they are
clearly illegal or constitute grave abuse of discretion, should not be
interfered with."
In Pacis vs. COMELEC,
[34]
we reiterated the guiding principle that "clean elections
control the appropriateness of the remedy." The dissent, for all its depth, is out of step
with this movement. It condemns the COMELEC for exercising its discretion to resort to
manual count when this was its only viable alternative. It would set aside the results of
the manual count even when the results are free from fraud and irregularity. Worse, it
would set aside the judgment of the people electing the private respondent as
Governor. Upholding the sovereignty of the people is what democracy is all
about. When the sovereignty of the people expressed thru the ballot is at stake, it
is not enough for this Court to make a statement but it should do everythingto
have that sovereignty obeyed by all. Well done is always better than well said.
IN VIEW WHEREOF, the petition of Tupay Loong and the petition in intervention of
Yusop Jikiri are dismissed, there being no showing that public respondent gravely
abused its discretion in issuing Minute Resolution Nos. 98-1748, 98-1750, 98-1796 and
98-1798. Our status quo order of June 23, 1998 is lifted. No costs.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Quisumbing,
Purisima, Buena, and Gonzaga-Reyes, JJ., concur.
Pardo, J., No part.
Panganiban, J., see dissenting opinion.
Ynares Santiago, J., no part. Did not participate in the deliberation.



[1]
See Report of Charlemagne Salamat Alejandro, Police Superintendent, GSC, Provincial Director, pp. 1-
2; Rollo, pp. 318-319.
[2]
See Memorandum of Atty. Tolentino, Jr. to Atty. Jose Balbuena, Director IV, Legal Department,
Comelec, pp. 1-2; Rollo, pp. 284-285.
[3]
Ibid., p. 3; Rollo, p. 286.
[4]
Ibid., p. 4; Rollo, p. 287.
[5]
Ibid., p. 6; Rollo, p. 289.
[6]
Rollo, pp. 303-304.
[7]
Ibid., pp. 25-26.
[8]
Rollo, pp. 299-301.
[9]
Rollo, pp. 27-29.
[10]
Rollo, pp. 290-291.
[11]
Ibid.
[12]
Ibid., pp. 30-32
[13]
Rollo, pp. 37-45.
[14]
Rollo, p.54.
[15]
Ibid., p. 46.
[16]
Ibid., pp. 157-184.
[17]
Ibid., p. 330.
[18]
Ibid., p. 392.
[19]
Filipino Engineering and Machine Shop v. Ferrer, 135 SCRA 25 (1985).
[20]
Rollo, p. 314.
[21]
Supplemental Memorandum of the Solicitor General, pp. 11-12; Rollo, pp. 433-434.
[22]
Tolentino memorandum, op. Cit., p. 14; Rollo, p. 297.
[23]
Rollo, pp. 34-35.
[24]
See Rosolution No. 98-1796.
[25]
Rollo, p. 328.
[26]
Rollo, pp. 62-97.
[27]
Memorandum, p. 9; Rollo, p. 264.
[28]
73 Phil. 288, 295-296 (1941).
[29]
Philippine Political Law, 1962 ed., pp. 383-386.
[30]
Section 2, Art. X of the 1935 Constitution.
[31]
Section 2, Art. XII (c) of the 1973 Constitution.
[32]
Section 2, Art. IX (C) of the 1987 Constitution.
[33]
19 SCRA 911-922 (1967).
[34]
25 SCRA 377, 388 (1968).
EN BANC
[G.R. No. 120318. December 5, 1997]
RICARDO "BOY" CANICOSA, petitioner, vs. COMMISSION ON
ELECTIONS, MUNICIPAL BOARD OF CANVASSERS OF
CALAMBA LAGUNA and SEVERINO LAJARA, respondents.
D E C I S I O N
BELLOSILLO, J .:
RICARDO "BOY" CANICOSA and SEVERINO LAJARA were candidates for mayor
in Calamba, Laguna, during the 8 May 1995 elections. After obtaining a majority of
some 24,000 votes
[1]
Lajara was proclaimed winner by the Municipal Board of
Canvassers. On 15 May 1995 Canicosa filed
with the Commission on Elections (COMELEC) a Petition to Declare Failure of
Election and to Declare Null and Void the Canvass and Proclamation because of
alleged widespread frauds and anomalies in casting and counting of votes, preparation
of election returns, violence, threats, intimidation, vote buying, unregistered voters
voting, and delay in the delivery of election documents and paraphernalia from the
precincts to the Office of the Municipal Treasurer. Canicosa particularly averred
that: (a) the names of the registered voters did not appear in the list of voters in their
precincts; (b) more than one-half of the legitimate registered voters were not able to
vote with strangers voting in their stead; (c) he was credited with less votes than he
actually received; (d) control data of the election returns was not filled up in some
precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer were
unsecured, i.e., without padlocks nor self-locking metal seals; and, (f) there was delay in
the delivery of election returns. But the COMELEC en banc dismissed the petition on
the ground that the allegations therein did not justify a declaration of failure of election.
Indeed, the grounds cited by Canicosa do not warrant a declaration

of failure of
election. Section 6 of BP Blg. 881, otherwise known as the Omnibus Election
Code, reads:
Sec. 6. Failure of election. - If, on account of force majeure, violence, terrorism,
fraud, or other analogous causes the election in any polling place has not been held on
the date fixed, or had been suspended before the hour fixed by law for the closing of
the voting, or after the voting and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such election results in a failure
to elect, and in any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or continuation
of the election not held, suspended or which resulted in a failure to elect on a date
reasonably close to the date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.
Clearly, there are only three (3) instances where a failure of election may be
declared, namely: (a) the election in any polling place has not been held on the date
fixed on account of force majeure, violence, terrorism, fraud, or other analogous
causes; (b) the election in any polling place had been suspended before the hour fixed
by law for the closing of the voting on account of force majeure, violence, terrorism,
fraud, or other analogous causes; 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.
None of the grounds invoked by Canicosa falls under any of those enumerated.
Canicosa bewails that the names of the registered voters in the various precincts
did not appear in their respective lists of voters. But this is not a ground to declare a
failure of election. The filing of a petition for declaration of failure of election therefore is
not the proper remedy. The day following the last day for registration of voters, the poll
clerk delivers a certified list of voters to the election registrar, election supervisor and
the COMELEC, copies of which are open to public inspection. On the same day, the
poll clerk posts a copy of the list of registered voters in each polling place. Each
member of the board of election inspectors retains a copy of the list which may be
inspected by the public in their residence or in their office during office hours.
[2]

Fifteen (15) days before the regular elections on 8 May 1995 the final list of voters
was posted in each precinct pursuant to Sec. 148 of RA No. 7166. Based on the lists
thus posted Canicosa could have filed a petition for inclusion of registered voters with
the regular courts. The question of inclusion or exclusion from the list of voters involves
the right to vote
[3]

which is not within the power and authority of COMELEC to rule
upon. The determination of whether one has the right to vote is a justiciable issue
properly cognizable by our regular courts. Section 138, Art. XII, of theOmnibus Election
Code states:
Sec. 138. Jurisdiction in inclusion and exclusion cases. - The municipal and
metropolitan trial courts shall have original and exclusive jurisdiction over all matters
of inclusion and exclusion of voters from the list in their respective municipalities or
cities. Decisions of the municipal or metropolitan trial courts may be appealed
directly by the aggrieved party to the proper regional trial court within five days from
receipts of notice thereof, otherwise said decision of the municipal or metropolitan
trial court shall decide the appeal within ten days from the time the appeal was
received and its decision shall be immediately final and executory. No motion for
reconsideration shall be entertained by the courts (Sec. 37, PD 1896, as amended).
On the other hand, Canicosa could have also filed with the COMELEC a verified
complaint seeking the annulment of the book of voters pursuant to Sec. 10, of RA No.
7166:
Sec. 10. Annulment of the List of Voters. - Any book of voters the preparation of
which has been affected with fraud, bribery, forgery, impersonation, intimidation,
force or any other similar irregularity or which is statistically improbable may be
annulled after due notice and hearing by the Commission motu propio or after the
filing of a verified complaint: Provided, that no order, ruling or decision annulling a
book of voters shall be executed within sixty (60) days before an election.
If indeed the situation herein described was common in almost all of the 557 precincts
as alleged by Canicosa,
[4]

then it was more expedient on his part to avail of the remedies
provided by law in order to maintain the integrity of the election. Since Canicosa failed
to resort to any of the above options, the permanent list of voters as finally corrected
before the election remains conclusive on the question as to who had the right to vote in
that election, although not in subsequent elections.
[5]

Canicosa also avers that more than one-half (1/2) of the legitimate registered voters
were not able to vote, instead, strangers voted in their behalf. Again, this is not a
ground which warrants a declaration of failure of election. Canicosa was allowed to
appoint a watcher in every precinct. The watcher is empowered by law to challenge any
illegal voter. Thus, Secs. 199 and 202, Art. XVII, of the Omnibus Election
Code, provide:
Sec. 199. Challenge of illegal voters. - (a) Any voter, or watcher may challenge any
person offering to vote for not being registered, for using the name of another or
suffering from existing disqualification. In such case, the board of election inspectors
shall satisfy itself as to whether or not the ground for the challenge is true by requiring
proof of registration or identity of the voter x x x x
Sec. 202. Record of challenges and oaths. - The poll clerk shall keep a prescribed
record of challenges and oaths taken in connection therewith and the resolution of the
board of election inspectors in each case and, upon the termination of the voting, shall
certify that it contains all the challenges made x x x x
The claim of Canicosa that he was credited with less votes than he actually
received and that the control data of the election returns was not filled up should have
been raised in the first instance before the board of election inspectors or board of
canvassers. Section 179, Art. XV, of the Omnibus Election Code clearly provides for
the rights and duties of watchers -
Sec. 179. Rights and duties of watchers. - x x x x The watchers x x x shall have the
right to witness and inform themselves of the proceedings of the board of election
inspectors x x x to file a protest against any irregularity or violation of law which they
believe may have been committed by the board of election inspectors or by any of its
members or by any persons, to obtain from the board of election inspectors a
certificate as to the filing of such protest and/or of the resolution thereon x x x and to
be furnished with a certificate of the number of votes in words and figures cast for
each candidate, duly signed and thumbmarked by the chairman and all the members of
the board of election inspectors x x x x
To safeguard and maintain the sanctity of election returns, Sec. 212, Art. XVIII, of
the Omnibus Election Code states -
Sec. 212. Election returns. - x x x x Immediately upon the accomplishment of the
election returns, each copy thereof shall be sealed in the presence of the watchers and
the public, and placed in the proper envelope, which shall likewise be sealed and
distributed as herein provided.
Furthermore, it is provided in Sec. 215 of the Omnibus Election Code that -
Sec. 215. Board of election inspectors to issue a certificate of the number of votes
polled by the candidates for an office to the watchers. - After the announcement of
the results of the election and before leaving the polling place, it shall be the duty of
the board of election inspectors to issue a certificate of the number of votes received
by a candidate upon request of the watchers. All members of the board of election
inspectors shall sign the certificate.
Supplementing the preceding provisions, Secs. 16 and 17 of RA No. 6646 also
require -
Sec. 16. Certification of votes. - After the counting of the votes cast in the precinct
and announcement of the results of the election, and before leaving the polling place,
the board of election inspectors shall issue a certificate of votes upon request of the
duly accredited watchers x x x x
Sec. 17. Certificate of Votes as Evidence. - The provisions of Secs. 235 and 236 of
Batas Pambansa Blg. 881 notwithstanding, the certificate of votes shall be admissible
in evidence to prove tampering, alteration, falsification or anomaly committed in the
election returns concerned x x x x
From the foregoing provisions, it is clear that in case of inconsistency as to the
number of votes written in the election returns and the certificate of votes, a petition for
correction of election returns must immediately be filed with COMELEC by all or a
majority of the members of the board of election inspectors or any candidate affected by
the error or mistake. In order to make out a case for correction of election returns, there
must be an error and at least a majority of the members of the board of election
inspectors agrees that such error existed. Canicosa never mentioned that he petitioned
for the correction of the election returns before the COMELEC
Canicosa complains that the election returns were delivered late and the ballot
boxes brought to the Office of the Municipal Treasurer unsecured, i.e., without padlocks
nor self-locking metal seals. These bare allegations cannot impel us to declare failure
of election. Assuming that the election returns were delivered late, we still cannot see
why we should declare a failure to elect. The late deliveries did not convert the election
held in Calamba into a mockery or farce to make us conclude that there was indeed a
failure of election.
In fine, the grounds cited by Canicosa in his petition do not fall under any of the
instances enumerated in Sec. 6 of the Omnibus Election Code. In Mitmug v.
Commission on Elections
[6]
we ruled that before COMELEC can act on a verified
petition seeking to declare a failure of election, at least two (2) conditions must
concur: (a) no voting has taken place in the precincts on the date fixed by law, or even
if there was voting, the election nevertheless resulted in failure to elect; and, (b) the
votes that were not cast would affect the result of the election. From the face of the
instant petition, it is readily apparent than an election took place and that it did not result
in a failure to elect.
[7]

Canicosa finally insists that it was error on the part of COMELEC sitting en
banc to rule on his petition. He maintains that his petition should have first been heard
by a division of COMELEC and later by the COMELEC en banc upon motion for
reconsideration, pursuant to Sec. 3, Art. IX-C, of the Constitution.
[8]

But this provision applies only when the COMELEC acts in the exercise of its
adjudicatory or quasi-judicial functions and not when it merely exercises purely
administrative functions. To reiterate, the grounds cited by Canicosa in his petition are
that: (a) the names of the registered voters did not appear in the list of voters in their
respective precincts; (b) more than one-half of the legitimate registered voters were not
able to vote with strangers voting in their stead; (c) he was credited with less votes than
he actually received; (d) the control data of the election returns was not filled up in some
precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer were
unsecured, i. e., without padlocks nor self-locking metal seals; and, (f) there was delay
in the delivery of election returns.
Clearly, all these matters require the exercise by the COMELEC of its administrative
functions. Section 2, Art. IX-C, of the 1987 Constitution grants extensive administrative
powers to the COMELEC with regard to the enforcement and administration of all laws
and regulations relative to the conduct of elections. Likewise, Sec. 52 of BP Blg. 881,
otherwise known as the Omnibus Election Code, states:
Sec. 52. Powers and functions of the Commission on Elections. - In addition to the
powers and functions conferred upon it by the Constitution, the Commission shall
have exclusive charge of the enforcement and administration of all laws relative to the
conduct of elections for the purpose of ensuring free, orderly and honest elections x x
x x
Quite obviously, it is only in the exercise of its adjudicatory or quasi-judicial powers
that the COMELEC is mandated to hear and decide cases first by Division and then,
upon motion for reconsideration, by the COMELEC en banc. This is when it is
jurisdictional. In the instant case, as aforestated, the issues presented demand only the
exercise by the COMELEC of its administrative functions.
The COMELEC exercises direct and immediate supervision and control over
national and local officials or employees, including members of any national or local law
enforcement agency and instrumentality of the government required by law to perform
duties relative to the conduct of elections. Its power of direct supervision and control
includes the power to review, modify or set aside any act of such national and local
officials.
[9]
It exercises immediate supervision and control over the members of the
boards of election inspectors and canvassers. Its statutory power of supervision and
control includes

the power to revise, reverse or set aside the action of the boards, as
well as to do what the boards should have done, even if questions relative thereto
have not been elevated to it by an aggrieved party, for such power includes the
authority to initiate motu proprio or by itself such steps or actions as may be required
pursuant to law.
[10]

Specifically, Canicosa alleged that he was credited with less votes than he actually
received. But he did not raise any objection before the Municipal Board of Canvassers;
instead, he went directly to the COMELEC. He now claims, after the COMELEC en
banc dismissed his petition, that it was error on the part of COMELEC to rule on his
petition while sitting en banc.
We have already disposed of this issue in Castromayor v. Commission on
Elections
[11]
thus should be pinpointed out, in this connection, that what is involved here
is a simple problem of arithmetic. The Statement of Votes is merely a tabulation per
precinct of the votes obtained by the candidates as reflected in the election returns. In
making the correction in computation, the MBC will be acting in an administrative
capacity, under the control and supervision of the COMELEC. Hence, any question
pertaining to the proceedings of the MBC may be raised directly to the COMELEC en
banc in the exercise of its constitutional function to decide questions affecting
elections.
Moreover, it is expressly provided in Rule 27, Sec. 7, of the Comelec Rules of
Procedure that any party dissatisfied with the ruling of the board of canvassers shall
have a right to appeal to the COMELEC en banc:
Sec. 7. Correction of Errors in Tabulation or Tallying of Results by the Board of
Canvassers. - (a) Where it is clearly shown before proclamation that manifest errors
were committed in the tabulation or tallying or election returns, or certificates of
canvass, during the canvassing as where (1) a copy of the election returns of one
precinct or two or more copies of a certificate of canvass were tabulated more than
once, (2) two copies of the election returns or certificate of canvass were tabulated
separately, (3) there was a mistake in the adding or copying of the
figures into the certificate of canvass or into the statement of votes by precinct,
or (4) so-called election returns from non-existent precincts were included in the
canvass, the board may motu proprio, or upon verified petition by any candidate,
political party, organization or coalition of political parties, after due notice and
hearing, correct the errors committed x x x x (h) The appeal shall be heard and
decided by the Commission en banc.
In Tatlonghari v. Commission on Elections
[12]
it was made to appear in
the Certificate of Canvass of Votes and Proclamation of the Winning Candidates that
respondent therein received 4,951 votes or more than what he actually obtained. In
resolving the case we ruled that the correction of the manifest mistake in mathematical
addition calls for a mere clerical task of the board of canvassers. The remedy invoked
was purely administrative. In Feliciano v. Lugay
[13]
we categorized the issue concerning
registration of voters, which Canicosa cited as a ground in his petition for declaration of
failure of election, as an administrative question. Likewise, questions as to whether
elections have been held or whether certain returns were falsified or manufactured and
therefore should be excluded from the canvass do not involve the right to vote. Such
questions are properly within the

administrative jurisdiction of COMELEC,
[14]
hence, may
be acted upon directly by the COMELEC en banc without having to pass through any of
its divisions.
WHEREFORE, finding no grave abuse of discretion committed by public
respondent Commission on Elections, the petition is DISMISSED and its Resolution en
banc of 23 May 1995 dismissing the petition before it on the ground that the allegations
therein did not justify a declaration of failure of election is AFFIRMED.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Melo, Puno, Vitug, Kapunan,
Francisco, Panganiban, and Martinez, JJ., concur.
Mendoza, J., on leave.



[1]
See Comment of private respondent Severino Lajara filed 29 November 1995.
[2]
Sec. 135, Art. XII, Omnibus Election Code.
[3]
Agpalo, Ruben E., Comments on the Election Code, 1992 Ed., p. 80.
[4]
See Petition, p. 5; Rollo, p. 6.
[5]
Sec. 13, Rule 20, COMELEC Rules of Procedure; Abendante v. Rebato, 94 Phil. 8 (1953).
[6]
G.R. Nos. 106270-73, 10 February 1994, 230 SCRA 54.
[7]
See Petition of Canicosa, p. 7; Rollo, p. 8.
[8]
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.
[9]
See Note 3, p. 76.
[10]
Id., p. 77.
[11]
G.R. No. 120426, 23 November 1995, 250 SCRA 304.
[12]
G.R. No. 86645, 31 July 1991, 199 SCRA 849.
[13]
93 Phil. 744 (1953).
[14]
Pungutan v. Abubakar, No. L- 33541, 20 January 1972, 43 SCRA 1.
EN BANC
[G. R. No. 150312. July 18, 2002]
BAGO P. PASANDALAN, petitioner, vs. COMMISSION ON ELECTIONS
and BAI SALAMONA L. ASUM, respondents.
D E C I S I O N
CARPIO, J .:
A petition for declaration of failure of election must specifically allege the essential
grounds that would justify the exercise of this extraordinary remedy. Otherwise, the
Comelec can dismiss outright the petition for lack of merit. No grave abuse of
discretion can be attributed to the Comelec in such a case because the Comelec must
exercise with utmost circumspection the power to declare a failure of election to prevent
disenfranchising voters and frustrating the electorates will.
The Case
Before us is a petition for review on certiorari of the Resolution
[1]
of the Commission
on Elections en banc dated October 12, 2001 dismissing petitioner Bago P.
Pasandalans (Pasandalan for brevity) petition to declare a failure of election.
Pasandalan and private respondent Bai Salamona L. Asum (Asum for brevity)
were candidates for mayor in the Municipality of Lumbayanague, Lanao del Sur during
the May 14, 2001 elections.
On May 23, 2001, Pasandalan filed a petition
[2]
before public respondent
Commission on Elections (Comelec for brevity) seeking to nullify the election results in
Barangay Cabasaran (Precinct Nos. 9A, 10A, 11A and 12A), Barangay Deromoyod
(Precinct Nos. 24A, 25A and 26A), Lamin (Precinct Nos. 29A and 30A), Barangay Wago
(Precinct Nos. 46A, 47A and 48A), Barangay Meniros (Precinct Nos. 32A, 33A and
34A), Barangay Bualan (Precinct Nos. 6A, 7A and 8A) and Barangay Pantaon (Precinct
Nos. 38A and 39A), all of Lumbayanague, Lanao del Sur.
Petitioner alleged that on May 14, 2001, while voting was going on, some Cafgus
stationed near Sultan Gunting Elementary School indiscriminately fired their firearms
causing the voters to panic and leave the polling center without casting their
votes. Taking advantage of the confusion, supporters of Asum allegedly took the official
ballots, filled them up with the name of Asum and placed them inside the ballot
boxes. The incident allegedly marred the election results in Precinct Nos. 9A-12A, 24A-
26A and 29A-30A.
In Precinct Nos. 46A, 47 and 48A, the members of the Board of Election Inspectors
(BEI for brevity) allegedly failed to sign their initials at the back of several official
ballots and to remove the detachable coupons. The BEI members allegedly affixed
their initials only during the counting of votes.
In Precinct Nos. 6A-8A, 32A-34A and 38A-39A, Pasandalan claims that Asums
supporters, taking advantage of the fistfight between Asums nephew and the
supporters of candidate Norania Salo, grabbed the official ballots and filled them up with
the name of Asum.
Pasandalan contends that a technical examination of several official ballots from the
contested precincts would show that only a few persons wrote the entries.
On June 26, 2001, Asum filed an Answer denying Pasandalans allegation that the
volley of shots fired on May 14, 2001 disrupted the voting. Private respondent
countered that the gunshots were heard around 2:35 p.m. and not at the start of the
voting. On June 30, 2001, Asum was sworn into office and assumed the position of
municipal mayor of the Lumbayanague, Lanao del Sur.
On October 12, 2001, the Comelec issued a Resolution dismissing the petition for
lack of merit.
[3]

Hence, this petition.
The Comelecs Ruling
The Comelec ruled that the power to declare a failure of election, being an
extraordinary remedy, could be exercised only in three instances: (1) the election is not
held; (2) the election is suspended; or (3) the election results in a failure to elect. The
third instance is understood in its literal sense, that is, nobody was elected.
The Comelec dismissed the petition because none of the grounds relied upon by
Pasandalan falls under any of the three instances justifying a declaration of failure of
election. First, the elections in the questioned precincts were held as
scheduled. Second, the gunshots heard during the casting of votes did not suspend the
election as the voting continued normally. Third, Asum was elected by a plurality of
votes.
The authenticity and integrity of the election returns were left undisturbed
throughout the preparation, transmission, custody and canvass of the
returns. Pasandalan alleges fraud and terrorism, in that there was massive substitution
of voters, firing of guns to frighten the voters, and failure of the BEI members to sign at
the back of some official ballots and to remove the detachable coupons. The Comelec
ruled that these allegations are better ventilated in an election contest.
The Comelec did not give credence to Pasandalans evidence in support of his
allegations of terrorism and fraud since the evidence consisted only of affidavits
executed by Pasandalans own poll watchers. The Comelec considered these affidavits
self-serving and insufficient to annul the results of the election. Thus, the Comelec
dismissed the petition for lack of merit.
The Issues
Pasandalan now assails the Comelecs dismissal of his petition, raising the
following issues:
1. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR
IN EXCESS OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
IN DISMISSING THE PETITION IN SPA NO. 01-305 FOR ALLEGED LACK
OF MERIT;
2. WHETHER THE COMMISSION ON ELECTIONS COMMITTED GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN
NOT ANNULING THE ELECTION OR DECLARING A FAILURE OF
ELECTION IN THE SIXTEEN (16) QUESTIONED PRECINCTS;
3. WHETHER THE COMMISSION ON ELECTIONS ACTED WITHOUT OR
IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN NOT DECLARING AS ILLEGAL, NULL AND VOID AB
INITIO THE PROCLAMATION OF THE PRIVATE RESPONDENT AS THE
DULY ELECTED MAYOR OF LUMBAYANAGUE, LANAO DEL SUR IN THE
LAST MAY 14, 2001 REGULAR ELECTIONS AND MAY 30, 2001 SPECIAL
ELECTIONS.
[4]

The Courts Ruling
We rule that the petition is without merit. The Comelec correctly dismissed the
petition for declaration of failure of election because the irregularities alleged in the
petition should have been raised in an election protest, not in a petition to declare a
failure of election.
Under Republic Act No. 7166, otherwise known as The Synchronized Elections Law of
1991,
[5]
the Comelec en banc is empowered to declare a failure of election under Section 6 of
the Omnibus Election Code (B.P. Blg. 881). Section 6 of the Code prescribes the conditions for
the exercise of this power, thus:
SEC. 6. Failure of Election. - If, on account of force majeure, violence,
terrorism, fraud or other analogous causes the election in any polling place
has not been held on the date fixed, or had been suspended before the hour
fixed by law for closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the result of the
election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or
continuation of the election not held, suspended or which resulted in a failure
to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.
Based on the foregoing provision, three instances justify a declaration of failure of
election. These are:
(a) the election in any polling place has not been held on the date fixed on
account of force majeure, violence, terrorism, fraud or other analogous
causes;
(b) the election in any polling place has been suspended before the hour fixed
by law for the closing of the voting on account of force majeure, violence,
terrorism, fraud or other analogous causes; or
(c) after the voting and during the preparation and transmission of the election
returns or in the custody or canvass thereof, such election results in a failure
to elect on account of force majeure, violence, terrorism, fraud or other
analogous causes.
[6]

What is common in these three instances is the resulting failure to elect.
[7]
In the first
instance, no election is held while in the second, the election is suspended.
[8]
In the third
instance, circumstances attending the preparation, transmission, custody or canvas of
the election returns cause a failure to elect. The term failure to elect means nobody
emerged as a winner.
[9]

Pasandalan asserts that the conditions for the declaration of failure of election are
present in this case. The volley of shots from high-powered firearms allegedly forced the
voters to scamper away from the polling place, paving the way for Asums supporters to
write the name of Asum on the ballots. The gunfire also frightened Pasandalans poll
watchers. The heavy firing allegedly suspended or prevented the holding of elections in
the contested precincts, resulting in failure to elect. The victory of Asum is thus put in
serious doubt.
We do not agree. Pasandalans allegations do not fall under any of the instances
that would justify the declaration of failure of election. The election was held in the 16
protested precincts as scheduled. At no point was the election in any of the precincts
suspended. Nor was there a failure to elect because of force majeure, violence,
terrorism, fraud or other analogous causes during the preparation, transmission,
custody and canvass of the election returns. The alleged terrorism was not of such
scale and prevalence to prevent the holding of the election or to cause its
suspension. In fact, the casting and counting of votes, the preparation, transmission
and canvassing of election returns and the proclamation of the winning candidate took
place in due course.
Courts exercise the power to declare a failure of election with deliberate caution so
as not to disenfranchise the electorate.
[10]
The fact alone that actual voting took place
already militates against Pasandalans cause. Also, Pasandalans allegations of
terrorism and fraud are not sufficient to warrant a nullification of the election in the
absence of any of the three instances justifying a declaration of failure of
election. Terrorism may not be invoked to declare a failure of election and to
disenfranchise the greater number of the electorate through the misdeeds of only a
few,
[11]
absent any of the three instances specified by law.
To warrant a declaration of failure of election on the ground of fraud, the fraud must
prevent or suspend the holding of an election, or mar fatally the preparation,
transmission, custody and canvass of the election returns.
[12]
The conditions for the
declaration of failure of election are stringent. Otherwise, elections will never end for
losers will always cry fraud and terrorism.
[13]

The allegations of massive substitution of voters, multiple voting, and other electoral
anomalies should be resolved in a proper election protest
[14]
in the absence of any of the
three instances justifying a declaration of failure of election. In an election protest, the
election is not set aside, and there is only a revision or recount of the ballots cast to
determine the real winner.
[15]

The nullification of elections or declaration of failure of elections is an extraordinary
remedy.
[16]
The party who seeks the nullification of an election has the burden of proving
entitlement to this remedy. It is not enough that a verified petition is filed. The
allegations in the petition must make out a prima facie case for the declaration of failure
of election, and convincing evidence must substantiate the allegations.
[17]

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

Pasandalan bewails the Comelecs dismissal of his petition without first conducting
a technical examination of the questioned precincts. Pasandalan claims that had the
Comelec made a technical examination of the questioned precincts, the Comelec would
have discovered massive substitution of voters, terrorism, violence, threats, coercion,
intimidation and other electoral frauds, resulting in a failure of election. Pasandalan
insists that a technical examination in this case would have been proper as in Typoco,
Jr. v. Commission on Elections,
[21]
which is also a case of failure of election.
The Comelec is not mandated to conduct a technical examination before it
dismisses a petition for nullification of election when the petition is, on its face, without
merit. In Typoco, petitioner Typoco buttressed his petition with independent evidence
that compelled the Comelec to conduct a technical examination of the questioned
returns. Typoco filed a Motion to Admit Evidence to prove that a substantial number of
election returns were manufactured. Typoco claimed that the returns were prepared by
only one person based on the report of Francisco S. Cruz, a licensed examiner of
questioned documents, who examined copies of the election returns of Lakas-
NUCD. In the present case, Pasandalan failed to attach independent and objective
evidence other than the self-serving affidavits of his own poll watchers.
In Mitmug v. Commission on Elections,
[22]
we ruled that the Comelec could dismiss
outright a petition for nullification of election if it is plainly groundless and the allegations
therein could be better ventilated in an election protest. In Banaga, Jr. v. Commission
on Elections,
[23]
we reiterated this doctrine, thus -
Finally, petitioner claims that public respondent gravely abused its discretion
when it dismissed his petition motu propio. However, the fact that a verified
petition has been filed does not mean that a hearing on the case should first
be held before Comelec can act on it. The petition to declare a failure of
election and/or to annul election results must show on its face that the
conditions necessary to declare a failure to elect are present. In their
absence, the petition must be denied outright. Public respondent had no
recourse but to dismiss the petition. Nor may petitioner now complain of
denial of due process, on this score, for his failure to properly file an election
protest. The Comelec can only rule on what was filed before it. It committed
no grave abuse of discretion in dismissing his petition to declare failure of
elections and/or for annulment of elections for being groundless, hence
without merit.
Clearly, the fact that a verified petition is filed with the Comelec does not necessarily
mean that a technical examination or a hearing on the case should be conducted first
before the Comelec can act on the petition. There is no grave abuse of discretion if the
Comelec dismisses the petition even without a technical examination or hearing if the
petition fails to show on its face the existence of any of the three instances required by
law to declare a failure of election. The Comelec in this case correctly dismissed the
petition.
Pasandalan believes that notwithstanding the fact that actual voting took place in
the questioned precincts, the election in this case, just like in Basher v. Commission on
Elections,
[24]
was illegal, irregular, and void.
[25]
Citing Basher, Pasandalan argues that
the peculiar set of facts in this case do not merely show a failure of election but the
absence of a valid electoral exercise.
[26]

The fact that an election is actually held prevents as a rule a declaration of failure of
election. It is only when the election is attended by patent and massive irregularities
and illegalities that this Court will annul the election. Basher is an example of such a
case.
In Basher, after a series of failed elections in Barangay Maidan, Municipality of
Tugaya, Lanao del Sur during the 1997 barangay elections, the election was reset to
August 30, 1997. Due to the prevailing tension in the locality, the voting started only at
around 9 p.m. and lasted until the early morning of the following day. Basher filed a
petition for the nullification of election. The Comelec ruled against a failure of election
because actual voting had taken place. However, we overturned the Comelec ruling
because the election was unauthorized and invalid. The electorate was not given
sufficient notice that the election would push through after 9 p.m. of the same
day. Moreover, the voting did not comply with the procedure laid down by law and by
Comelec rules as to the time and place of voting. Thus, we held that the election was
illegal, irregular and void. Consequently, we annulled the proclamation of the winning
candidate and ordered a special election.
Basher does not apply to this case. Unlike in Basher, the election in this case
proceeded as scheduled, in accordance with law and Comelec rules. None of the
extreme circumstances that marred the election in Basher is present in this case. We
have ruled that there is failure of election only if the will of the electorate is muted and
cannot be ascertained.
[27]
If the will of the people is determinable, the same must be
respected as much as possible.
[28]
In this case, the will of the electorate is readily
discernible. Pasandalan should have filed an election protest to substantiate his
allegations of electoral anomalies, not a petition to declare a failure of election.
WHEREFORE, the instant petition is DISMISSED. The assailed Resolution of
public respondent Comelec is AFFIRMED. Costs against petitioner.
SO ORDERED.
Bellosillo, (Acting C.J.), Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, and Corona, JJ., concur.
Davide, Jr., C.J., on leave.



[1]
Penned by Alfredo L. Benipayo (Chairman), with Commissioners Luzviminda G. Tancangco, Rufino
S.B. Javier, Ralph C. Lantion, Mehol K. Sadain, Resurreccion Z. Borra, and Florentino A. Tuason, Jr.,
concurring.
[2]
Docketed as SPA No. 01-305.
[3]
Rollo, p. 34.
[4]
Rollo, pp. 14-15.
[5]
Sec. 4. Postponement; Failure of Election and Special Elections. - The postponement, declaration of
failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the Omnibus
Election Code shall be decided by the Commission sitting en banc by a majority vote of its members. The
causes or the declaration of a failure of election may occur before or after the casting of votes on the day
of the election.
xxx.
[6]
Banaga, Jr., v. Commission on Elections, 336 SCRA 701 (2000).
[7]
Ibid.
[8]
Ibid.
[9]
Ibid.
[10]
Mitmug v. Commission on Elections, 230 SCRA 54 (1994).
[11]
Hassan v. Commission on Elections, 264 SCRA 125 (1996).
[12]
Banaga v. Commission on Elections, supra, note 6.
[13]
Mitmug v. Commission on Elections, supra, note 10.
[14]
Rollo, pp. 7-11.
[15]
Carlos v. Angeles, 346 SCRA 571 (2000).
[16]
Mitmug v. Commission on Elections, supra, note 10.
[17]
Ibid. See also Banaga v. Commission on Elections, supra, note 6.
[18]
Cordero v. Commission on Elections, 310 SCRA 118 (1999).
[19]
Ibid.
[20]
Rollo, pp. 30-32.
[21]
319 SCRA 498 (1999); Rollo, p. 16.
[22]
Supra, note 10.
[23]
Supra, note 6.
[24]
330 SCRA 736 (2000); Rollo, p. 16.
[25]
Ibid.
[26]
Rollo, p. 19.
[27]
Banaga v. Commission on Elections, supra, note 6.
[28]
Ibid.

EN BANC
[G.R. No. 139028. April 12, 2000]
HADJI RASUL BATADOR BASHER, petitioner, vs. COMMISSION ON
ELECTIONS and ABULKAIR AMPATUA, respondents.
D E C I S I O N
PANGANIBAN, J .:
An election must be held at the place, date and time prescribed by law. Likewise, its
suspension or postponement must comply with legal requirements. Otherwise, it is
irregular and void. h Y
The Case
Petitioner
[1]
assails before us the June 8, 1999 Resolution of the Commission on
Elections (Comelec)
[2]
in SPA Case No. 97-276 which dismissed a Petition to Declare a
Failure of Election and to Call Special Election in Precinct No. 12, Barangay Maidan,
Tugaya, Lanao del Sur. The assailed Resolution disposed as follows: Jksm
"In view of the foregoing considerations, We he[re]by hold that the special
elections in Barangay Maidan, Tugaya, Lanao del Sur on August 30, 1997
did not fail. The result thereof must therefore be accorded respect.
"WHEREFORE, premises considered, the Commission En
Banc RESOLVES to DISMISS the petition for lack of merit."
[3]

The Facts
Petitioner Hadji Rasul Batador Basher and Private Respondent Abulkair Ampatua were
both candidates for the position of Punong Barangay in Barangay Maidan, Tugaya,
Lanao del Sur during the May 12, 1997 barangay election. The election was declared a
failure and a special one was set for June 12, 1997. Again, the election failed and was
reset to August 30, 1997. Chief
According to the Comelec, the voting started only around 9:00 p.m. on August 30, 1997
because of the prevailing tension in the said locality. Election Officer Diana DatuImam
reported that she was allegedly advised by some religious leaders not to proceed with
the election because "it might trigger bloodshed." She also claimed that the town mayor,
"being too hysterical, yelled and threatened me to declare [a] failure of election in
Maidan." Subsequently, the armed followers of the mayor pointed their guns at her and
her military escorts, who responded in like manner towards the former. The parties were
then pacified at the PNP headquarters. With the arrival of additional troops, the election
officer proceeded to Maidan to conduct the election starting at 9:00 p.m. until the early
morning of the following day. The holding of the election at that particular time was
allegedly announced "over the mosque."
[4]

The tally sheet for the said "election" showed the following results: private respondent
250 votes; petitioner 15 votes; and Baulo Abdul Razul, a third candidate 10
votes.
[5]
Private respondent was proclaimed winner.
Petitioner then filed a Petition before the Comelec praying that the election be declared
a failure. Alleging that no election was conducted in the place and at the time prescribed
by law, petitioner narrated that there was a dispute that day (August 30, 1997) among
the candidates regarding the venue of the election in the lone voting precinct of the
barangay. In order to avoid bloodshed, they ultimately agreed that no election would be
conducted. Accordingly, the election officer turned over for safekeeping the ballot box
containing election paraphernalia to the acting station commander (OIC) of the
Philippine National Police (PNP). The following day, petitioner and the third candidate
were surprised to learn that the election officer had directed the Board of Election
Tellers to conduct the election and to fill up the election returns and certificates of
canvass on the night of August 30, 1997 at the residence of the former mayor.
Petitioner also stated that no announcement to hold the election at the former mayors
house that night was ever made.
[6]

As earlier stated, the Comelec dismissed the Petition. Hence, this recourse to this
Court.
[7]

Ruling of the Comelec
The Comelec ruled against a failure of election because the two conditions laid down
in Mitmug v. Comelec
[8]
were not established. It held that the "election was conducted on
the scheduled date. The precinct functioned. Actual voting took place, and it resulted
not in a failure to elect."
[9]

In justifying the balloting at the dead of night, the poll body cited Section 22, Article IV of
Comelec Resolution 2971, which provided in part that "[i]f at three oclock, there are still
voters within thirty meters in front of the polling place who have not cast their votes, the
voting shall continue to allow said voters to cast their votes without interruption. x x x"
The Comelec then went on to state that "experience had shown that even when there is
a long delay in the commencement of the voting, voters continue to stay within the area
of the polling place."
[10]

Issue
Petitioner submits the following questions for the consideration of the Court:
"1. Whether or not the election held at around 10:00 oclock in the evening
of August 30, 1997 after the Acting Election Officer had verbally declared
or announced a failure of election in Precinct No. 12, Barangay Maidan,
Tugaya, Lanao del Sur is contrary to law, rule and jurisprudence;
"2. Whether or not the election held at the residence of an Ex-mayor far
from the designated Polling Place of Precinct No. 12, Barangay Maidan,
Tugaya, Lanao del Sur is legal or valid;
"3. Whether or not the proclamation of the private respondent as the duly
elected Punong Barangay of Barangay Maidan and the seven (7)
Barangay Kagawads is illegal, null and void ab initio."
[11]

In the main, the crucial question that needs to be addressed is whether the "election"
held on the date, at the time and in the place other than those officially designated by
the law and by the Comelec was valid. Esm
The Courts Ruling
The Petition is meritorious.
Main Issue: Validity of the Special Election
Citing Mitmug v. Comelec,
[12]
the Comelec points out that a failure of election requires
the concurrence of two conditions, 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.
It ruled that these requirements were not met. Esmsc
We do not agree. The peculiar set of facts in the present case show not merely a failure
of election but the absence of a valid electoral exercise. Otherwise stated, the disputed
"election" was illegal, irregular and void. Esmmis
Election Situs Was Illegal
First, the place where the voting was conducted was illegal. Section 42 of the Omnibus
Election Code provides that "[t]he chairman of the board of election tellers shall
designate the public school or any other public building within the barangay to be used
as polling place in case the barangay has one election precinct x x x." Petitioner, citing
an Affidavit
[13]
supposedly executed by the members of the Board of Election Tellers
(BET) for Barangay Maidan, alleges that the election of officials for said barangay was
held at the residence of former Mayor Alang Sagusara Pukunun, which is located at
Barangay Pandarianao, instead of the officially designated polling precinct at Cagayan
Elementary School. If this allegation were true, such "election" cannot be valid, as it was
not held within the barangay of the officials who were being elected. On the other hand,
it is admitted that there was a public school or building in Barangay Maidan -- the
Cagayan Elementary School, which was the earlier validly designated voting center.
While the BET members later repudiated their Affidavit, they could only claim that the
election was held "in Barangay Maidan."
[14]
They, however, failed to specify the exact
venue. In fact, to this date, even the respondents have failed to disclose where exactly
the voting was conducted. This glaring omission definitely raises serious questions on
whether the election was indeed held in a place allowed by law. Esmso
Voting Time Was Likewise Irregular
Second, as to the time for voting, the law provides that "[t]he casting of votes shall start
at seven o'clock in the morning and shall end at three o'clock in the afternoon, except
when there are voters present within thirty meters in front of the polling place who have
not yet cast their votes, in which case the voting shall continue but only to allow said
voters to cast their votes without interruption."
[15]
Section 22, Article IV of Comelec
Resolution No. 2971 also specifies that the voting hours shall start promptly at 7:00 a.m.
and end at 3:00 p.m. of the same day. Msesm
However, the "election" for Barangay Maidan officials was supposed to have been held
after 9:00 p.m. of August 30, 1997 until the wee hours of the following day. Certainly,
such schedule was not in accordance with law or the Comelec Rules. The Comelec
erred in relying on the second sentence of Section 22, Article IV of Comelec Resolution
2971, which states that "[i]f at three o'clock [in the afternoon], there are still voters within
thirty meters in front of the polling place who have not cast their votes, the voting shall
continue to allow said voters to cast their votes without interruption." This sentence
presupposes that the election commenced during the official time and is
simply continued beyond 3:00 p.m. in order to accommodate voters who are within thirty
meters of the polling place, already waiting for their turn to cast their votes. This is
clearly the meaning and intent of the word continue -- "to go on in a specified course of
action or condition."
[16]
The action or condition already subsists and is allowed to go on.
Otherwise, the law should have stated instead that "the voting may also start even
beyond 3:00 p.m. if there are voters within thirty meters in front of the polling
place." Exsm
The strained interpretation espoused by the Comelec encourages the conduct of
clandestine "elections," for it virtually authorizes the holding of elections beyond normal
hours, even at midnight when circumstances could be more threatening and conducive
to unlawful activities. On a doctrinal basis, such nocturnal electoral practice discourages
the people's exercise of their fundamental right of suffrage, by exposing them to the
dangers concomitant to the dead of night, especially in far-flung barangays constantly
threatened with rebel and military gunfires. Kyle
Election Date Was Invalid
Third, the Comelec scheduled the special election on August 30, 1997. Any suspension
or postponement of an election is governed by Section 2 of RA 6679,
[17]
which states that
"[w]hen for any serious cause such as rebellion, insurrection, violence, terrorism, loss or
destruction of election paraphernalia, and any analogous causes of such nature that the
holding of a free, orderly and honest election should become impossible in any
barangay, the Commission on Election motu proprio or upon sworn petition of ten (10)
registered voters of a barangay, after summary proceedings of the existence of such
grounds, shall suspend or postpone the election therein to a date reasonably close to
the date of the election that is not held or is suspended or postponed, or which resulted
in a failure to elect, but not later than thirty (30) days after the cessation of the cause for
such suspension or postponement of the election or failure to elect, and in all cases not
later than ninety (90) days from the date of the original election." Kycalr
Election Officer Diana Datu-Imam of Tugaya, Lanao del Sur practically postponed the
election in Barangay Maidan from the official original schedule of 7:00 a.m. to 3:00 p.m.
of August 30, 1997 to 10:00 p.m. of August 30, 1997 until the early morning of August
31, 1997. She attempted to justify her postponement of the election by citing threats of
violence and bloodshed in the said barangay. Allegedly because of the tension created
by armed escorts of the municipal mayor and the military, Datu-Imam declared a failure
of election in order "to ease their aggression." However, as election officer, she has no
authority to declare a failure of election. Indeed, only the Comelec itself has legal
authority to exercise such awesome power. An election officer alone, or even with the
agreement of the candidates, cannot validly postpone or suspend the elections. Calrky
Election Postponement Was Invalid
Fourth, Datu-Imam did not follow the procedure laid down by law for election
postponement or suspension or the declaration of a failure of election. She narrated the
circumstances surrounding her declaration as follows:
[18]

"When I returned to [as]certain the situation in Maidan, the Mayor, being
too hysterical, yelled and threatened me to declare [a] failure of elections
in Maidan. When I insisted to personally confirm the probable cause of
bloodshed (at Maidan), his armed followers/escorts pointed their guns to
me and my escorts. Likewise my military escorts pointed their guns to the
mayor and his men 'Man to Man'. The Datus and religious leaders pacified
us at the PNP Headquarters.
"After a couple of hours, the military officers and I agreed to adapt another
strategy just to pursue with the elections in Maidan [by] hook or by crook.
Considering that they forcibly took away from us the ballot box containing
paraphernalia of Maidan, I didn't have any recourse but give them. I
turned-over the ballot box to the Acting Chief of Police, Malik Bantuas with
proper receipt, taking away from the box the CEF 2 & 2-A, declaring
verbally a failure of elections in Maidan just to ease their aggression and
so that we could pull-out of the place freely."
It clearly appears from the very report of Datu-Imam to the Comelec that she did not
conduct any proceeding, summary or otherwise, to find out whether any of the legal
grounds for the suspension or postponement or the declaration of failure of the election
actually existed in the barangay concerned. Mesm
Notice Was Irregular
Finally and very significantly, the electorate was not given ample notice of the exact
schedule and venue of the election. The election officer herself relates:
[19]

"When the tension was slightly alleviated, I directed the military personnel
to pull-out of the Municipio and withdrew to a nearby Barangay (for safety)
where some of the militaries (sic) were deployed. After planning and
coordinating with the Batallion (sic) Commander, we waited for the
additional troups (sic) that arrived at around 8:30 in the evening. At the
stroke of 9:00 o'clock, we started for Maidan via the national Highway thru
the Municipality of Balindong and others thru a short-cut way (sic)
eastward of Tugaya. Utilizing the election paraphernalia earlier shipped by
the Commission as I have requested (sic) and a ballot box from the PES,
we went on with the election (after announcing it over the mosque)
peacefully and orderly despite the tiredness (sic) and exhaustion felt by
the people the whole day waiting/expecting for the election as I have
assured them earlier (sic). x x x"
As can be gleaned easily from the above report, the electorate of Barangay Maidan was
not given due notice that the election would push through after 9:00 p.m. that same day.
Apparently, the election officer's decision to hold the election on the night of August 30,
1997 was precipitate. Only after additional military troops had arrived at their site in a
nearby barangay about 8:30 p.m. did the election officers proceed to Barangay Maidan.
Arriving at Maidan, they allegedly proceeded to conduct the election "after announcing it
over the mosque."
Such abbreviated announcement "over the mosque" at such late hour did NOT
constitute sufficient notice to the electorate. Consequently, not the entire electorate or
even a respectable number could have known of the activity and actually participated
therein or voluntarily and discerningly chosen not to have done so. Slx
Indeed, the Court in Hassan v. Comelec
[20]
held that the notice given on the afternoon of
the election day resetting the election to the following day and transferring its venue was
"too short." We said that "[t]o require the voters to come to the polls on such short notice
was highly impracticable. x x x It is essential to the validity of the election that the voters
have notice in some form, either actual or constructive, of the time, place and purpose
thereof.
[21]
The time for holding it must be authoritatively designated in advance."
[22]

In the case at bar, the announcement was made only minutes before the supposed
voting. If one-day notice was held to be insufficient in Hassan, the much shorter notice
in the present case should all the more be declared wanting. It should in fact be equated
with "no notice." Scslx
In sum, the "election" supposedly held for officials of Barangay Maidan cannot be
clothed with any form of validity. It was clearly unauthorized and invalid. It had no legal
leg to stand on. Not only did the suspension/postponement not comply with the
procedure laid down by law and the Comelec Rules, neither was there sufficient notice
of the time and date when and the place where it would actually be conducted. It was
thus as if no election was held at all. Hence, its results could not determine the winning
punong barangay. Slxsc
WHEREFORE, the Petition is hereby GRANTED and the assailed Resolution SET
ASIDE. The proclamation of private respondent as punong barangay is hereby
declared VOID. Respondent Comelec is ORDERED to conduct a special election for
punong barangay of Maidan, Tugaya, Lanao del Sur as soon as possible. No
pronouncement as to costs. Slxmis
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Kapunan, Mendoza, Quisumbing, Pardo, Buena,
Gonzaga-Reyes, and Ynares-Santiago, JJ., concur. Missdaa
Bellosillo, J., no part, did not take part in deliberation.
Vitug, J., on official business abroad.
Purisima, J., joins the dissent of J. De Leon, Jr.
De Leon, Jr., JJ., see dissent.



[1]
Petitioner describes the present recourse as a "Petition for Review on Certiorari." The Court, however, resolved to
consider it as a Petition for Certiorari under Rule 65 of the Rules of Court because it is grounded on grave abuse of
discretion on the part of the Comelec.
[2]
The Resolution was signed by Comelec Chairman Harriet O. Demetriou, Commissioners Manolo B. Gorospe,
Julio F. Desamito, Teresita Dy-Liacco Flores, Japal M. Guiani, Luzviminda G. Tancangco and Abdul Gani
Marohombsar Al Hadj.
[3]
Assailed Resolution, p. 8; rollo, p. 20.
[4]
Narrative Report of Election Officer Diana T. Datu-Imam, cited in the assailed Resolution, pp. 4-5; rollo, pp. 16-
17.
[5]
Annex "K," Petition; rollo, p. 38.
[6]
Petition to Declare a Failure of Election, pp. 2-3; rollo, pp. 23-24.
[7]
The Court deemed the case submitted for decision upon the filing of Respondent Comelecs Comment on October
29, 1999. Private respondents Comment was received on July 23, 1999. This case, however, was assigned to the
undersigned ponentefor the writing of the Courts Decision during the deliberations of the Court on April 11, 2000
when his erstwhile Dissent was voted as the majority opinion.
[8]
230 SCRA 54, February 10, 1994.
[9]
Assailed Resolution, p. 8; rollo, p. 20.
[10]
Ibid., p. 6; rollo, p. 18.
[11]
Petition, p. 4; rollo, p. 6.
[12]
230 SCRA 54, February 10, 1994. See also 6, Omnibus Election Code.
[13]
Rollo, p. 34.
[14]
See Assailed Comelec Resolution, p. 4.
[15]
[190, OEC, as amended.
[16]
Webster's New World Dictionary, 2nd College ed. (1974). (Emphasis supplied.)
[17]
Otherwise known as the Barangay Election Law, which amended parts of the OEC.
[18]
Narrative Report dated August 31, 1997 of Election Officer Diana T. Datu-Imam, p. 2; rollo, pp. 57-58.
[19]
Narrative Report, supra.
[20]
264 SCRA 125, November 13, 1996, per Kapunan, J.
[21]
Citing Furste v. Gray, 240 Ky 604, 42 SW 2d 889; and State ex rel Stipp v. Colliver, (MO) 243 SW 2d 344.
[22]
Hassan, supra, p. 134.

EN BANC
[G.R. No. 134696. July 31, 2000]
TOMAS T. BANAGA, JR., petitioner, vs. COMMISSION ON ELECTIONS
and FLORENCIO M. BERNABE, JR., respondents.
D E C I S I O N
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
Paraaque in the May 11, 1998 election. On May 19, 1998, the city board of
canvassers proclaimed private respondent, Florencio M. Bernabe, Jr., the winner for
having garnered a total of Seventy One Thousand Nine Hundred Seventy Seven
(71,977) votes of the total votes cast for the vice-mayoralty position. On the other hand,
petitioner, Tomas T. Banaga, Jr., received the second highest number of votes for the
said position, with Sixty Eight Thousand Nine Hundred Seventy (68,970) of the total
votes cast. Thus, the difference between the votes received by the private respondent
and the petitioner is three thousand seven (3,007) votes.
Dissatisfied, petitioner filed with the COMELEC on May 29, 1998, an action
denominated as Petition to Declare Failure of Elections and/or For Annulment of
Elections,
[1]
alleging that:
3. xxx the local elections for the office of Vice-Mayor in the City of
Paraaque, Metro Manila, held on 11 May 1998, amounts to a denigration of
the expression of the true will of the people, as it was tainted with widespread
election anomalies which constitutes election fraud. The local elections for
the position of Vice-Mayor in the City of Paraaque, Metro Manila, was replete
with election offenses, specifically vote buying and flying voters being allowed
to vote. Moreover, during the canvassing of votes before the Board of
Canvasser, numerous Election Returns were discovered to contain glaring
discrepancies and are replete with blatant omissions, not to mention the fact
that numerous election returns appeared to be tampered with. All told, it is
readily apparent that the portion of the Election Returns pertaining to the
position of Vice-Mayor in the City of Paraaque, appear to be altered, falsified
or fabricated.
4. The will of the legitimate voters of the City of Paraaque were denigrated
during the 11 May 1998 election as a consequence of the fact that an
indeterminable number of flying voters were allowed to vote.
xxx
5. The 11 May 1998 elections for local officials in the City of Paraaque has
likewise been marred by massive vote buying. To cite but one example, in
Precinct Nos. 111-112 at the Tambo Elementary School in the City of
Paraaque, a certain Dennis Sambilay Agayan (Agayan) was arrested for
voting in substitution of registered voter Ramon Vizcarra. Agayan admitted
before SPO1 Alberto V. Parena that he was paid One Hundred Fifty Pesos
(P150.00) to vote at precincts No. 111-112 and use the name Ramon
Vizcarra. As proof of the foregoing, attached hereto as Annex E is the
Information dated 11 May 1998 filed against Agayan.
The magnitude of the vote buying in the 11 May 1998 local elections in the
City of Paraaque, is such that the voters involved number in the
thousands. Evidence in this regard shall be presented in the proper time.
6. Also, there have been several instances where purported voters were
depositing more than one (1) ballot inside the ballot box. As evidence thereof,
attached hereto as Annex F is the Affidavit of a certain Rosemarie Pascua of
Barangay Baclaran, City of Paraaque.
7. The foregoing incidents alone actually suffices to establish that a failure of
elections should be declared on the ground that the will of the electorate of the
City of Paraaque has been denigrated. The elections for the office of the
Vice-Mayor in the City of Paraaque, on 11 May 1998 cannot be considered
as reflective of the true will of the electorate. However, the anomalies do not
stop there.
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 Paraaque.
xxx
10. Finally, what seriously casts doubt on the legitimacy of the elections for
the office of the Vice-Mayor in the City of Paraaque is the fact that the results
thereof are statistically improbable. A case in point is precinct number 483
where petitioner shockingly is supposed to have received zero (0)
votes. Petitioner is the incumbent Vice-Mayor of the City of Paraaque. It is,
thus, impossible that he will receive zero (0) votes in any given precinct.
[2]

Petitioner asked the COMELEC for the following reliefs:
1. After trial, judgment be rendered as follows:
1.1 Declaring a failure of elections, or declaring the annulment of the
elections, for the office of the Vice-Mayor in the City of Paraaque, Metro
Manila;
1.2. Annulling the proclamation of the respondent as the elected Vice-Mayor
of the City of Paraaque, Metro Manila, during the 11 May 1998 elections; and
1.3. Declaring that special elections should be held for the office of Vice-
Mayor in the City of Paraaque, Metro Manila.
2. Alternatively, in the remote event that the Honorable Commission does not
render judgment as aforesaid, an order be issued to the Treasurer of the City
of Paraaque to bring and present before this Honorable Commission on or
before the day of the hearing of the Election Protest, the ballot boxes, copies
of the registry lists, election returns, the minutes of election in all precincts,
and the other documents used in the local elections for the Office of the Vice-
Mayor held on 11 May 1998 in the said City, for the Honorable Commission to
re-examine and revise the same; and
3. After due trial judgment be rendered as follows:
3.1. The election of respondent FLORENCIO M. BERNABE, JR., for the office
of Vice-Mayor in the City of Paraaque, Metro Manila be annulled;
3.2. The petitioner, TOMAS T. BANAGA, JR., be adjudged as the duly elected
Vice-Mayor in the City of Paraaque, during the 11 May 1998 local elections;
and
3.3. The expenses, costs and damages incurred in these proceedings be
assessed against the respondent.
Other just and equitable reliefs are likewise prayed for.
[3]

On June 29, 1998, the COMELEC dismissed petitioners suit. It held that the
grounds relied upon by petitioner do not fall under any of the instances enumerated in
Section 6 of the Omnibus Election Code. The election tribunal concluded that based on
the allegations of the petition, it is clear that an election took place and that it did not
result in a failure to elect.
[4]

Considering that a motion for reconsideration of a COMELEC en banc ruling is
prohibited, except in a case involving an election offense,
[5]
and aggrieved by the
COMELECs dismissal of his suit, petitioner timely filed the instant petition
for certiorari with this Court.
Before us, petitioner now claims that the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction when it dismissed his petition motu
propio without any basis whatsoever and without giving him the benefit of a hearing. He
contends that:
I
THE PETITION DATED 28 MAY 1998 IS ESSENTIALLY AN ELECTION
PROTEST. HENCE, THE COMELEC COULD NOT LEGALLY DISMISS
THE ENTIRE PETITION MERELY ON THE GROUND THAT THERE
WAS ALLEGEDLY NO FAILURE OF ELECTION IN THE CITY OF
PARANAQUE DURING THE 11 MAY 1998 ELECTIONS.
II
THE AUTHORITY RELIED UPON BY THE COMELEC AS BASIS FOR
THE DISMISSAL OF THE PETITION DATED 28 MAY 1998, THAT
OF EDWIN SAR[D]EA, ET. AL. V. COMELEC, ET. AL., AND MITMUG V.
COMELEC, ARE NOT APPLICABLE TO THE CASE AT BAR
CONSIDERING THAT ASIDE FROM BEING AN ELECTION PROTEST,
THE SAID PETITION SEEKS THE ANNULMENT OF AN ELECTION
PURSUANT TO THE DOCTRINE LAID DOWN BY THE HONORABLE
SUPREME COURT IN LOONG V. COMELEC.
[6]

Clearly, the issue for our resolution is whether or not public respondent acted with
grave abuse of discretion in dismissing petitioners petition, in the light of petitioners
foregoing contentions.
While petitioner may have intended to institute an election protest by praying that
said action may also be considered an election protest, in our view, petitioners action is
a petition to declare a failure of elections or annul election results. It is not an election
protest.
First, his petition before the COMELEC was instituted pursuant to Section 4 of
Republic Act No. 7166 in relation to Section 6 of the Omnibus Election Code. Section 4
of RA 7166 refers to postponement, failure of election and special elections
[7]
while
Section 6 of the Omnibus Election Code relates to failure of election. It is simply
captioned as Petition to Declare Failure of Elections and/or For Annulment of
Elections.
Second, an election protest is an ordinary action while a petition to declare a failure
of elections is a special action under the 1993 COMELEC Rules of Procedure as
amended. An election protest is governed by Rule 20 on ordinary actions, while a
petition to declare failure of elections is covered by Rule 26 under special actions.
In this case, petitioner filed his petition as a special action and paid the
corresponding fee therefor. Thus, the petition was docketed as SPA-98-383. This
conforms to petitioners categorization of his petition as one to declare a failure of
elections or annul election results. In contrast, an election protest is assigned a docket
number starting with EPC, meaning election protest case.
Third, petitioner did not comply with the requirements for filing an election
protest. He failed to pay the required filing fee and cash deposits for an election
protest. Failure to pay filing fees will not vest the election tribunal jurisdiction over the
case. Such procedural lapse on the part of a petitioner would clearly warrant the
outright dismissal of his action.
Fourth, an en banc decision of COMELEC in an ordinary action becomes final and
executory after thirty (30) days from its promulgation, while an en banc decision in a
special action becomes final and executory after five (5) days from promulgation, unless
restrained by the Supreme Court.
[8]
For that reason, a petition cannot be treated as both
an election protest and a petition to declare failure of elections.
Fifth, the allegations in the petition decisively determine its nature. Petitioner
alleged that the local elections for the office of vice-mayor in Paraaque City held on
May 11, 1998, denigrates the true will of the people as it was marred with widespread
anomalies on account of vote buying, flying voters and glaring discrepancies in the
election returns. He averred that those incidents warrant the declaration of a failure of
elections.
[9]

Given these circumstances, public respondent cannot be said to have gravely erred
in treating petitioners action as a petition to declare failure of elections or to annul
election results.
The COMELECs authority to declare a failure of elections is provided in our
election laws. Section 4 of RA 7166 provides that the COMELEC sitting en banc by a
majority vote of its members may decide, among others, the declaration of failure of
election and the calling of special election as provided in Section 6 of the Omnibus
Election Code. Said Section 6, in turn, provides as follows:
Section 6. Failure of Elections. --- If, on account of force majeure, violence,
terrorism, fraud or other analogous causes the election in any polling place
has not been held on the date fixed, or had been suspended before the hour
fixed by law for the closing of the voting, or after the voting and during the
preparation and the transmission of the 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 Paraaque City, and that private respondent was, in fact, proclaimed elected
to that post. While petitioner contends that the election was tainted with widespread
anomalies, it must be noted that to warrant a declaration of failure of election the
commission of fraud must be such that it prevented or suspended the holding of an
election, or marred fatally the preparation and transmission, custody and canvass of the
election returns. These essential facts ought to have been alleged clearly by the
petitioner below, but he did not.
In Mitmug vs. COMELEC,
[12]
petitioner instituted with the COMELEC an action to
declare failure of election in forty-nine precincts where less than a quarter of the
electorate were able to cast their votes. He also lodged an election protest with the
Regional Trial Court disputing the result of the election in all precincts in his
municipality. The COMELEC denied motu propio and without due notice and hearing
the petition to declare failure of election despite petitioners argument that he has
meritorious grounds in support thereto, that is, massive disenfranchisement of voters
due to terrorism. On review, we ruled that the COMELEC did not gravely abuse its
discretion in denying the petition. It was not proven that no actual voting took
place. Neither was it shown that even if there was voting, the results thereon would be
tantamount to failure to elect. Considering that there is no concurrence of the
conditions seeking to declare failure of election, there is no longer need to receive
evidence on alleged election irregularities.
In Sardea vs. COMELEC,
[13]
all election materials and paraphernalia with the
municipal board of canvassers were destroyed by the sympathizers of the losing
mayoralty candidate. The board then decided to use the copies of election returns
furnished to the municipal trial court. Petitioner therein filed a petition to stop the
proceedings of the board of canvassers on the ground that it had no authority to use
said election returns obtained from the municipal trial court. The petition was
denied. Next, he filed a petition assailing the composition of the board of
canvassers. Despite that petition, the board of canvassers proclaimed the winning
candidates. Later on, petitioner filed a petition to declare a failure of election alleging
that the attendant facts would justify declaration of such failure. On review, we ruled
that petitioners first two actions involved pre-proclamation controversies which can no
longer be entertained after the winning candidates have been proclaimed. Regarding
the petition to declare a failure of election, we held that the destruction and loss of
copies of election returns intended for the municipal board of canvassers on account of
violence is not one of the causes that would warrant the declaration of failure of
election. The reason is that voting actually took place as scheduled and other valid
election returns still existed. Moreover, the destruction or loss did not affect the result of
the election. We also declared that there is failure of elections only when the will of the
electorate has been muted and cannot be ascertained. If the will of the people is
determinable, the same must as far as possible be respected.
These aforecited cases are instructive in the resolution of the present case because
they involve similar actions and issues. No error could be attributed to public
respondent for its reliance on these precedents.
In Loong vs. Comelec,
[14]
the petition for annulment of election results or to declare
failure of elections in Parang, Sulu, on the ground of statistical improbability and
massive fraud was granted by the COMELEC.
[15]
Even before the technical examination
of election documents was conducted, the COMELEC already observed badges of
fraud just by looking at the election results in Parang. Nevertheless, the COMELEC
dismissed the petition for annulment of election results or to declare failure of elections
in the municipalities of Tapul, Panglima Estino, Pata, Siasi and 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
petitioners 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 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.



[1]
The Petition is dated May 28, 1998.
[2]
Rollo, pp. 38-49.
[3]
Id. at 49-51.
[4]
Id. at 29-30.
[5]
Section 1 (d), Rule 13, 1993 COMELEC Rules of Procedure, as amended.
[6]
Rollo, p. 10.
[7]
Republic Act 7166, Section 4. Postponement, Failure of Election and Special Elections.--- The postponement,
declaration of failure of election and the calling of special elections as provided in Sections 5, 6 and 7 of the
Omnibus Election Code shall be decided by the Commission sitting en banc by a majority vote of its members. The
cause for the declaration of a failure of election may occur before or after the casting of votes or on the day of
election. xxx
[8]
COMELEC Rules of Procedure, Rule 18, Section 13 (a), (b).
[9]
Rollo, pp. 39-43.
[10]
Typoco vs. COMELEC, GR-136191, November 29, 1999, p. 9.
[11]
Mitmug vs. COMELEC, 230 SCRA 54, 60 (1994).
[12]
Mitmug vs. COMELEC, 230 SCRA 54 (1994).
[13]
Sardea vs. COMELEC, 225 SCRA 374 (1993).
[14]
257 SCRA 1 (1996).
[15]
Id. at 31-32.
[16]
Rollo, p. 20.
[17]
Loong vs. COMELEC, 257 SCRA 1, 16, 23 (1996).
[18]
Mitmug vs. COMELEC, 230 SCRA 54, 61 (1994).
EN BANC
[G. R. No. 149803. January 31, 2002]
DATU ANDAL S. AMPATUAN, BIMBO Q. SINSUAT, SR., IBRAHIM B.
BIRUAR, ALONTO B. DAUDIE, MICHAEKL B. DIRANGAREN,
ASNAWIS S. LIMBONA, RUSSMAN Q. SINSUAT, ZALNUDIN M.
ABUTAZIL, DATUWATA U. ADZIS, BORGIVA T. DATU-MANONG,
FREDDIE G. MANGUDADATU and ABBAS A. PENDATUN,
JR., petitioners, vs. COMMISSION ON ELECTIONS, DATU
ZACARIA A. CANDAO, DATU NORODIN M. MATALAM, KHARIS
M. BARAGUIR, PAGRAS D. BIRUAR, CAHAR PENDAT IBAY,
PATULA O. TIOLO, MARHOMSAL K. LAUBAN, MENTANG T.
KABAGANI, ELIZABETH C. MASUKAT, GAPOR A. RAJAMUDA,
SAID S. SALIK and LINTATO G. SANDIGAN, respondents.
D E C I S I O N
PARDO, J .:
The case is a petition for certiorari and prohibition under Rule 64 in relation to Rule
65 of the Revised Rules of Court with preliminary injunction or temporary restraining
order
[1]
to nullify and set aside two (2) orders dated July 26, 2001
[2]
and August 28,
2001
[3]
of the Commission on Elections (COMELEC), ordering a random technical
examination of pertinent election paraphernalia and other documents in several
municipalities in the province of Maguindanao to determine a failure of elections.
Petitioners
[4]
and respondents
[5]
were candidates for the provincial elective positions
in the province of Maguindanao in the May 14, 2001 election. Petitioner Ampatuan and
respondentCandao contended for the position of governor. The slate
of Ampatuan emerged as winners as per election returns.
On May 23, 2001, respondents filed a petition with the Comelec for the annulment
of election results and/or declaration of failure of elections
[6]
in several municipalities
[7]
in
the province ofMaguindanao. They claimed that the elections were completely sham
and farcical. The ballots were filled-up en masse by a few persons the night before
election day, and in some precincts, the ballot boxes, official ballots and other election
paraphernalia were not delivered at all.
[8]

On May 25, 2001, the Comelec issued an order suspending the proclamation of the
winning candidates for congressman of the second district, governor, vice-governor and
board members of Maguindanao.
[9]

On May 30, 2001, petitioners filed with the Comelec a motion to lift the suspension
of proclamation.
[10]
On June 14, 2001, the Comelec issued an order lifting the suspension
of proclamation of the winning candidates for governor, vice-governor and board
members of the first and second districts.
[11]
Consequently, the Provincial Board of
Canvassers proclaimed petitioners winners.
[12]

On June 16, 2001, respondents filed with the Supreme Court a petition to set aside
the Comelec order dated June 14, 2001, and preliminary injunction to suspend the
effects of the proclamation of the petitioners.
[13]
Meantime, petitioners assumed their
respective offices on June 30, 2001. On July 17, 2001, the Court resolved to deny
respondents petition.
[14]

Petitioners assumption into office notwithstanding, on July 26, 2001,
the Comelec ordered the consolidation of respondents petition for declaration of failure
of elections with SPA Nos. 01-244, 01-332, 01-360, 01-388 and 01-390.
[15]
The
COMELEC further ordered a random technical examination on four to seven precincts
per municipality on the thumb-marks and signatures of the voters who voted and affixed
in their voters registration records, and forthwith directed the production of relevant
election documents in these municipalities.
[16]

On August 28, 2001, the Comelec issued another order
[17]
directing the continuation
of the hearing and disposition of the consolidated SPAs on the failure of elections and
other incidents related thereto. It likewise ordered the continuation of the technical
examination of election documents as authorized in the July 26, 2001 order.
On September 27, 2001, the Comelec issued an order outlining the procedure to be
followed in the technical examination.
[18]

On September 26, 2001, petitioners filed the present petition.
[19]
They claimed that
by virtue of their proclamation pursuant to the June 14, 2001 order issued by
the Comelec, the proper remedy available to respondents was not a petition for
declaration of failure of elections but an election protest. The former is heard summarily
while the latter involves a full-blown trial. Petitioners argued that the manner by which
the technical examination is to be conducted
[20]
would defeat the summary nature of a
petition for declaration of failure of elections.
On October 5, 2001, petitioners filed a motion
[21]
reiterating their request for a
temporary restraining order to enjoin the implementation of the July 26,
2001 and August 28, 2001 Comelecorders.
On October 22, 2001, the Comelec issued an order suspending the implementation
of the two (2) assailed orders, the pertinent portion of which reads as follows:
The Commission, in view of the pendency of G. R. No. 149803 xxx, requiring it to
comment within ten (10) days from notice, hereby suspends implementation of its
orders of July 26, 2001 and August 28, 2001 in deference to the resolution of said
court.
[22]

However, on November 13, 2001, the Comelec issued another order lifting the
suspension.
[23]

On November 20, 2001, we issued a temporary restraining order, to wit:
xxx the Court Resolved to (a) ISSUE the TEMPORARY RESTRAINING ORDER
prayed for, effective immediately and continuing until further orders from this Court,
ordering the respondent Commission on Elections to CEASE and DESIST from
ordering the lifting of the suspended implementation orders dated 26 July 2001 and 28
August 2001 in SPA No. 01-323 xxx.
[24]

The main issue to be resolved is whether the Commission on Elections was
divested of its jurisdiction to hear and decide respondents petition for declaration of
failure of elections after petitioners had been proclaimed.
We deny the petition.
Petitioners submit that by virtue of their proclamation as winners, the only remedy
left for private respondents is to file an election protest, in which case, original
jurisdiction lies with the regular courts. Petitioners cited several rulings that an election
protest is the proper remedy for a losing candidate after the proclamation of the winning
candidate.
[25]

However, the authorities petitioners relied upon involved pre-proclamation
controversies. In Loong v. Commission on Elections,
[26]
we ruled that a pre-proclamation
controversy is not the same as an action for annulment of election results, or failure of
elections. These two remedies were more specifically distinguished in this wise:
While, however, the Comelec is restricted, in pre-proclamation cases, to an
examination of the election returns on their face and is without jurisdiction to go
beyond or behind them and investigate election irregularities, theComelec is duty
bound to investigate allegations of fraud, terrorism, violence, and other analogous
causes in actions for annulment of election results or for declaration of failure of
elections, as the Omnibus Election Code denominates the same. Thus, the Comelec,
in the case of actions for annulment of election results or declaration of failure of
elections, may conduct technical examination of election documents and compare
and analyze voters signatures and thumbprints in order to determine whether or not
the elections had indeed been free, honest and clean.
[27]

The fact that a candidate proclaimed has assumed office does not deprive
the Comelec of its authority to annul any canvass and illegal proclamation.
[28]
In the case
at bar, we cannot assume that petitioners proclamation and assumption into office on
June 30, 2001, was legal precisely because the conduct by which the elections were
held was put in issue by respondents in their petition for annulment of election results
and/or declaration of failure of elections.
Respondents allegation of massive fraud and terrorism that attended the May 14,
2001 election in the affected municipalities cannot be taken lightly as to warrant the
dismissal of their petition by the Comelec on the simple pretext that petitioners had
been proclaimed winners. We are not unmindful of the fact that a pattern of conduct
observed in past elections has been the pernicious grab-the-proclamation-prolong-the-
protest slogan of some candidates or parties such that even if the protestant wins, it
becomes a mere pyrrhic victory, i.e., a vindication when the term of office is about to
expire or has expired. xxx We have but to reiterate the oft-cited rule that the validity of
a proclamation may be challenged even after the irregularly proclaimed candidate has
assumed office.
[29]

Petitioners likewise rely on the case of Typoco, Jr. v. Commission on
Elections.
[30]
This Court held that Comelec committed no grave abuse of discretion in
dismissing a petition for declaration of failure of elections. However, we made a
pronouncement that the dismissal was proper since the allegations in the petition did
not justify a declaration of failure of elections. Typocos relief was for Comelec to order
a recount of the votes cast, on account of the falsified election returns, which is properly
the subject of an election contest.
[31]

Respondents petition for declaration of failure of elections, from which the present
case arose, exhaustively alleged massive fraud and terrorism that, if proven, could
warrant a declaration of failure of elections. Thus:
4.1. The elections in at least eight (8) other municipalities xxx were completely
sham and farcical. There was a total failure of elections in these municipalities, in that
in most of these municipalities, no actual voting was done by the real, legitimate
voters on election day itself but voting was made only by few persons who prepared
in advance, and en masse, the ballots the day or the night before election and, in many
precincts, there was completely no voting because of the non-delivery of ballot boxes,
official ballots and other election paraphernalia; and in certain municipalities, while
some semblance of voting was conducted on election day, there was widespread
fraudulent counting and/or counting under very irregular circumstances and/or
tampering and manufacture of election returns which completely bastardized the
sovereign will of the people. These illegal and fraudulent acts of desecration of the
electoral process were perpetrated to favor and benefit respondents. These acts were,
by and large, committed with the aid and/or direct participation of military elements
who were deployed to harass, intimidate or coerce voters and the supporters or
constituents of herein petitioners, principally, of re-
electionist Governor Datu Zacaria Candao. Military units and personnel visibly,
openly and flagrantly violated election laws and regulations by escorting people or
elements engaged in the illegal, advanced preparation of ballots and election returns
and, at times, manning the polling places or precincts themselves and/or staying
within the prohibited radius. Ballot boxes and other election paraphernalia were
brought not to the precincts or voting centers concerned but somewhere else where
massive manufacture of ballots and election documents were perpetrated.
[32]

The Comelec en banc has the authority to annul election results and/or declare a
failure of elections.
[33]
Section 6 of the Omnibus Election Code further provides that:
Section 6. Failure of election.- If, on account of force majeure, violence, terrorism,
fraud, or other analogous causes the election in any polling place has not been held on
the date fixed, or had been suspended before the hour fixed by law for the closing of
the voting, or after the voting and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such election results in a failure
to elect, and in any of such cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice and hearing, call for the holding or continuation
of the election not held, suspended or which resulted in a failure to elect but not later
than thirty days after the cessation of the cause of such postponement or suspension of
the election of failure to elect.
Elucidating on the concept of failure of election, we held that:
xxx before Comelec can act on a verified petition seeking to declare a failure of
election, two (2) conditions must concur: first, no voting has taken place in the
precincts concerned on the date fixed by law or, even if there was voting, the election
nevertheless resulted in a failure to elect; and second, the votes cast would affect the
result of the election. In Loong vs. Commission on Elections, this Court added that the
cause of such failure of election should have been any of the following: force majeure,
violence, terrorism, fraud or other analogous cases.
[34]

In another case, we ruled that while it may be true that election did take place, the
irregularities that marred the counting of votes and the canvassing of the election
returns resulted in a failure to elect.
[35]

In the case at bar, the Comelec is duty-bound to conduct an investigation as to the
veracity of respondents allegations of massive fraud and terrorism that attended the
conduct of the May 14, 2001 election. It is well to stress that the Comelec has started
conducting the technical examination on November 16, 2001. However, by an urgent
motion for a temporary restraining order filed by petitioners, in virtue of which we issued
a temporary restraining order on November 20, 2001, the technical examination was
held in abeyance until the present. In order not to frustrate the ends of justice, we lift the
temporary restraining order and allow the technical examination to proceed with
deliberate dispatch.
WHEREFORE, the petition is hereby DISMISSED. The temporary restraining order
issued on November 20, 2001 is DISSOLVED. The Commission on Elections is directed
to proceed with the hearing of the consolidated petitions and the technical examination
as outlined in its September 27, 2001 order with deliberate dispatch. No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Quisumbing, Buena, Ynares-Santiago, De Leon,
Jr., and Carpio, JJ., concur.
Melo, J., please see dissenting opinion.
Sandoval-Gutierrez, J., joins Justice Melo in his dissent.



[1]
Filed on September 26, 2001 (Rollo, pp. 3-26). On October 2, 2001, we required respondents to
comment on the petition (Rollo, p. 127).
[2]
In the consolidated cases SPA Nos. 01-244 and 01-323 (Rollo, pp. 81-86).
[3]
In the consolidated cases SPA Nos. 01-244, 01-323, 01-332, 01-360, 01-388, and 01-390 (Rollo, pp.
117-122).
[4]
Official candidates of the Lakas-NUCD-UMDP political party (Rollo, p. 28).
[5]
Official candidates under the banner of KAMPI (Rollo, p. 28).
[6]
Docketed as SPA No. 01-323 (Rollo, pp. 27-37).
[7]
Namely: Shariff Aguak, Talayan, Mamasapano, Ampatuan, Datu Odin Sinsuat,
South Upi, Salipada K. Pendatun and Datu Piang.
[8]
Rollo, pp. 27-37 at pp. 29-34.
[9]
Rollo, pp. 48-49.
[10]
Rollo, pp. 50-55.
[11]
Rollo, pp. 67-76.
[12]
Petition, Rollo, pp. 3-26 at p. 4.
[13]
Docketed as G.R. No. 148289 (Petition, Rollo, p. 4).
[14]
Petition, Rollo, p. 5.
[15]
One of the assailed orders of this present petition, Order dated July 26, 2001 in SPA 01-323.
[16]
Ibid.
[17]
Rollo, pp. 117-122.
[18]
Rollo, pp. 332-346.
[19]
Rollo, pp. 3-26.
[20]
As outlined in the September 27, 2001 order of the Comelec.
[21]
Rollo, pp. 128-154.
[22]
Rollo, pp. 184-186.
[23]
Rollo, pp. 187-195.
[24]
Rollo, pp. 167-168.
[25]
Salvacion v. Commission on Elections, 170 SCRA 513 (1989); Torres v. Commission on Elections, 270
SCRA 583 (1997); Typoco, Jr. v. Commission on Elections, 319 SCRA 498 (1999).
[26]
326 Phil. 790, 814 (1996), cited in Matalam v. Commission on Elections, 338 Phil. 447 (1997).
[27]
Loong v. Commission on Elections, 326 Phil. 790, 814 (emphasis supplied).
[28]
Aguam v. Comelec, 132 Phil. 353, 357 (1968).
[29]
Ibid., at p. 358.
[30]
319 SCRA 498 (1999).
[31]
Typoco, Jr. v. Commission on Elections, 319 SCRA 498, 506 (1999). Emphasis supplied.
[32]
Rollo, pp. 29-30.
[33]
Section 4, R.A. No. 7166, The Synchronized Elections Law of 1991.
[34]
Typoco, Jr. v. Commission on Elections, 319 SCRA 498, 505 (1999), citing Mitmug v. Commission on
Elections 230 SCRA 54 (1994).
[35]
Soliva v. Commission on Elections, G.R. No. 141723 (April 20, 2001).
EN BANC
[G.R. No. 133495. September 3, 1998]
BENJAMIN U. BORJA, JR., petitioner vs. COMMISSION ON ELECTIONS
and JOSE T. CAPCO, JR., respondents.
D E C I S I O N
MENDOZA, J .:
This case presents for determination the scope of the constitutional provision barring
elective officials, with the exception of barangay officials, from serving more than three
consecutive terms. In particular, the question is whether a vice-mayor who succeeds to the office
of mayor by operation of law and serves the remainder of the term is considered to have served a
term in that office for the purpose of the three-term limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988
for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law,
upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor
for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected
mayor for another term of three years ending June 30, 1998.
[1]

On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of
Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja, Jr., who was also a
candidate for mayor, sought Capcos disqualification on the theory that the latter would have
already served as mayor for three consecutive terms by June 30, 1998 and would therefore be
ineligible to serve for another term after that.
On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of
petitioner and declared private respondent Capco disqualified from running for reelection as
mayor of Pateros.
[2]
However, on motion of private respondent, the COMELEC en banc, voting
5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998
elections.
[3]
The majority stated in its decision:
In both the Constitution and the Local
Government Code, the three-term limitation
refers to the term of office for which the
local official was elected. It made no
reference to succession to an office to which
he was not elected. In the case before the
Commission, respondent Capco was not
elected to the position of mayor in the
January 18, 1988 local elections. He
succeeded to such office by operation of law
and served for the unexpired term of his
predecessor. Consequently, such succession
into office is not counted as one (1) term for
purposes of the computation of the three-
term limitation under the Constitution and
the Local Government Code.
Accordingly, private respondent was voted for in the elections. He received 16,558 votes
against petitioners 7,773 votes and was proclaimed elected by the Municipal Board of
Canvassers.
This is a petition for certiorari brought to set aside the resolution, dated May 7, 1998, of he
COMELEC and to seed a declaration that private respondent is disqualified to serve another term
as Mayor of Pateros, Metro Manila.
Petitioner contends that private respondent Capcos service as mayor from September 2,
1989 to June 30, 992 should be considered as service for full one term, and since he thereafter
served from 1992 to 1998 two more terms as mayor, he should be considered to have served
three consecutive terms within the contemplation of Art. X, 8 of the Constitution and 43(b) of
the Local Government Code. Petitioner stresses the fact that, upon the death of Mayor Cesar
Borja on September 2, 1989, private respondent became the mayor and thereafter served the
remainder of the term. Petitioner argues that it is irrelevant that private respondent became
mayor by succession because the purpose of the constitutional provision in limiting the number
of terms elective local officials may serve is to prevent a monopolization of political power.
This contention will not bear analysis. Article X, 8 of the Constitution provides:
SEC. 8. The term of office of elective local officials, except barangay officials,
which shall be determined by law, shall be three years and no such official shall serve
for more than three consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.
This provision is restated in 43(b) of the Local Government Code (R.A. No. 7160):
Sec. 43. Term of Office - . . .
(b) No local elective official shall serve for more than three (3) consecutive terms
in the same position. Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the continuity of service for the
full term for which the elective official concerned was elected.
First, to prevent the establishment of political dynasties is not the only policy embodied in
the constitutional provision in question. The other policy is that of enhancing the freedom of
choice of the people. To consider, therefore, only stay in office regardless of how the official
concerned came to that office whether by election or by succession by operation of law
would be to disregard one of the purposes of the constitutional provision in question.
Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals
that the members of the Constitutional Commission were as much concerned with preserving the
freedom of choice of the people as they were with preventing the monopolization of political
power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after
serving three consecutive terms or nine years there should be no further reelection for local and
legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian
Monsod that such officials be simply barred from running for the same position in the
succeeding election following the expiration of the third consecutive term.
[4]
Monsod warned
against prescreening candidates [from] whom the people will choose as a result of the
proposed absolute disqualification, considering that the draft constitution provision recognizing
peoples power.
[5]

Commissioner Blas F. Ople, who supported the Monsod proposal, said:
The principle involved is really whether this Commission shall impose a temporary or a
perpetual disqualification on those who have served their terms in accordance with the limits on
consecutive service as decided by the Constitutional Commission. I would be very wary about
this Commission exercising a sort of omnipotent power in order to disqualify those who will
already have served their terms from perpetuating themselves in office. I think the Commission
achieves its purpose in establishing safeguards against the excessive accumulation of power as a
result of consecutive terms. We do put a cap on consecutive service in the case of the
President, six years; in the case of the Vice-President, unlimited; and in the case of the Senators,
one reelection. In the case of the Members of Congress, both from the legislative districts and
from the party list and sectoral representation, this is now under discussion and later on the
policy concerning local officials will be taken up by the Committee on Local Governments. The
principle remains the same. I think we want to prevent future situations where, as a result of
continuous service and frequent reelections, officials from the President down to the municipal
mayor tend to develop a proprietary interest in their position and to accumulate those powers and
perquisites that permit them to stay on indefinitely or to transfer these posts to members of their
families in a subsequent election. I think that is taken care of because we put a gap on the
continuity or the unbroken service of all of these officials. But where we now decide to put these
prospective servants of the people or politicians, if we want to use the coarser term, under a
perpetual disqualification, I have a feeling that we are taking away too much from the people,
whereas we should be giving as much to the people as we can in terms of their own freedom of
choice.
[6]

Other commissioners went on record against perpetually disqualifying elective officials
who have served a certain number of terms as this would deny the right of the people to
choose. As Commissioner Yusup R. Abubakar asked, why should we arrogate unto ourselves
the right to decide what the people want?
[7]

Commisioner Felicitas S. Aquino spoke in the same vein when she called on her colleagues
to "allow the people to exercise their own sense of proportion and [rely] on their own strength to
curtail power when it overreaches itself.
[8]

Commissioner Teodoro C. Bacani stressed: Why should we not leave [perpetual
disqualification after serving a number of terms] to the premise accepted by practically
everybody here that our people are politically mature? Should we use this assumption only when
it is convenient for us, and not when it may also lead to a freedom of choice for the people and
for politicians who may aspire to serve them longer?
[9]

Two ideas thus emerge from a consideration of the proceedings of the Constitutional
Commission. The first is the notion of service of term, derived from the concern about the
accumulation of power as a result of a prolonged stay in office. The second is the idea
of election, derived from the concern that the right of the people to choose those whom they wish
to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did
so on the assumption that the officials concerned were serving by reason of reelection. This is
clear from the following exchange in the Constitutional Commission concerning term limits,
now embodied in Art. VI 4 and 7 of the Constitution, for members of Congress:
MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will
allow the Senator to rest for a period of time before he can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before if the Gentlemen will remember-
was: How long will that period of rest be? Will it be one election which is three years or one
term which is six years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view
that during the election following the expiration of the first 12 years, whether
such election will be on the third year or on the sixth year thereafter, this particular
member of the Senate can run. So it is not really a period of hibernation for six
years. That was the Committees stand.
[10]

Indeed, a fundamental tenet of representative democracy is that the people should be
allowed to choose whom they please to govern them.
[11]
To bar the election of a local official
because he has already served three terms, although the first as a result of succession by
operation of law rather than election, would therefore be to violate this principle.
Second, not only historical examination but textual analysis as well supports the ruling of
the COMELEC that Art. X, 8 contemplates service by local officials for three consecutive
terms as a result of election. The first sentence speaks of the term of office of elective local
officials and bars such official[s] from serving for more than three consecutive terms. The
second sentence, in explaining when an elective local official may be deemed to have served his
full term of office, states that voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of his service for the full term for which he
was elected. The term served must therefore be one for which [the official concerned] was
elected. The purpose of this provision is to prevent a circumvention of the limitation on the
number of terms an elective official may serve. Conversely, if he is not serving a term for which
he was elected because he is simply continuing the service of the official he succeeds, such
official cannot be considered to have fully served the term now withstanding his voluntary
renunciation of office prior to its expiration.
Reference is made to Commissioner Bernas comment on Art. VI, 7, which similarly bars
members of the House of Representatives from serving for more than three
terms. Commissioner Bernas states that if one is elected Representative to serve the unexpired
term of another, that unexpired term, no matter how short, will be considered one term for the
purpose of computing the number of successive terms allowed.
[12]

This is actually based on the opinion expressed by Commissioner Davide in answer to a
query of Commissioner Suarez: For example, a special election is called for a Senator, and the
Senator newly elected would have to serve the unexpired portion of the term. Would that mean
that serving the unexpired portion of the term is already considered one term? So, half a term,
which is actually the correct statement, plus one term would disqualify the Senator concerned
from running? Is that the meaning of this provision on disqualification, Madam
President? Commissioner Davide said: Yes, because we speak of term and if there is a
special election, he will serve only for the unexpired portion of that particular term plus one
more term for the Senator and two more terms for the Members of the Lower House.
[13]

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



[1]
Rollo, pp. 5-6, 124-125.
[2]
Id., pp. 63-71.
[3]
Id., pp. 30-32.
[4]
2 RECORD OF THE CONSTITUTIONAL COMMISSION 236-243 (Session of July 25, 1986) (hereafter cited
as RECORD)
[5]
Id., at 236.
[6]
Id., at 239-240.
[7]
Id., at 242.
[8]
Id., at 242.
[9]
Id., at 243.
[10]
Id., 590 (August 7, 1986).
[11]
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 131 L. Ed. 2d 881 (1995)
[12]
JOAQUIN BERNAS,THE 1987 CONSTITUTION 637 (1996).
[13]
2 RECORD 592 (Session of August 7, 1986).
[14]
LOCAL GOVERNMENT CODE of 1991, R.A. No. 7160, 44(a).
[15]
Art. VI, 8.
[16]
R.A. No. 7160, 445 (1991).
EN BANC
[G.R. No. 123230. April 18, 1997]
NORODIN M. MATALAM, petitioner, vs. COMMISSION ON ELECTIONS
and ZACARIA A. CANDAO, respondents.
D E C I S I O N
PANGANIBAN, J .:
Law and jurisprudence mandate that pre-proclamation controversies should be
resolved in summary proceedings; thus, the Comelec and the Boards of Canvassers, in
resolving these disputes, need not look beyond the face of the election returns. So too,
petitioner must show that the exclusion of the contested returns will materially change
the standing of the aggrieved parties. In the case at bench, the Court affirms once
again these well-entrenched doctrines in our legal system.
This petition for certiorari under Rule 65 of the Rules of Court assails the
Resolution
[1]
dated August 24, 1995 of the Commission on Elections (Comelec), Second
Division, in the consolidated cases of SPC No. 95-029, SPC No. 95-279, SPC No. 95-
185 and SPC No. 95-291, the dispositive portion of which states:
WHEREFORE, premises considered, that the Commission on Elections
(Second Division) resolves to DISMISS the appeals and AFFIRM the rulings
of the Provincial Board of Canvassers. The proclamation of respondent
Candao as Governor of the Province of Maguindanao earlier set aside and
declared null and void is hereby reconsidered and ordered revived.
[2]

Also assailed herein is the Comelec en banc Resolution
[3]
dated January 16, 1996
denying the motion for reconsideration, to wit:
In keeping with the ruling of the Supreme Court in Alfonso vs. Commission
on Elections, 232 SCRA 777, that, It is a matter of public policy that pre-
proclamation controversies shall be resolved in summary proceedings, and it
appearing that the instant motion for reconsideration is without merit and does
not offer much in terms of new issues or substantial matters to warrant the
reversal or setting aside of the questioned Resolution of the Second Division,
the Commission En Banc RESOLVES to DENY the Motion for
Reconsideration. Accordingly, the resolution of the Second Division is
hereby AFFIRMED.
The Motion filed subsequently on September 6, 1995 by herein petitioners-
movants for technical examination of CE Forms 1 and 2 of the Municipality
of Maganoy, Maguindanao is likewise hereby DENIED for having become
moot and academic.
[4]

In its assailed Resolutions, Public Respondent Comelec disposed of the following
four cases:
[5]

1. SPC Case No. 95-029, initiated by the local candidates from the Municipality of
Maganoy, Maguindanao, seeking to nullify the election results in and the
consequent proclamation of the candidates in said municipality. Petitioner Norodin
Matalam filed a petition for intervention, contending that the election returns in the
said municipality were falsified, fabricated and manufactured.
2. SPC Case No. 95-185, filed by Petitioner Matalam to enjoin the Provincial Board of
Canvassers of Maguindanao from tabulating the certificate of canvass from
Maganoy, Maguindanao;
3. SPC No. 95-279, filed also by Petitioner Matalam to set aside the proceedings of
the Municipal Board of Canvassers of Datu Piang, Maguindanao;
4. SPC No. 95-291, filed by Petitioner Matalam to exclude the certificates of canvass
from the Municipality of Datu Piang.
The Facts
Petitioner Norodin M. Matalam and Private Respondent Zacaria A. Candao were
both candidates for Governor of the Province of Maguindanao in the May 8, 1995
elections.
During the canvass of the election returns in the municipalities of Datu Piang and
Maganoy, both in the Province of Maguindanao, Petitioner Matalam challenged before
the respective Municipal Boards of Canvassers (MBC) the authenticity of the election
returns in said towns. Because the MBC merely noted his objections, petitioner
reiterated the same before the Provincial Board of Canvassers (PBC). In those two
municipalities, petitioner was credited with only 3,641 votes, while private respondent
received 44,654 votes. It is the contention of petitioner that the exclusion of the results
is enough to overhaul the lead of Candao.
[6]

Because the Provincial Board of Canvassers rejected the pleas of petitioner
and included the challenged certificates of canvass for Datu Piang and Maganoy in the
provincial canvass, petitioner filed the above-mentioned petitions before the Comelec.
During the pendency of the said petitions, the Provincial Board of Canvassers on
June 30, 1995 proclaimed Respondent Candao as the duly elected governor of
Maguindanao.
Citing Section 20 (1) of Republic Act No. 7166 which requires that proclamations of
winning candidates during the pendency of an appeal or petition should be authorized
by the Comelec, the Second Division of Respondent Commission subsequently nullified
on July 11, 1995 the said proclamation of Candao.
On August 24, 1995, as earlier stated, the Comelec Second Division denied, via the
assailed Resolution, the petitions questioning the proceedings in the Municipal and
Provincial Boards of Canvassers and, at the same time, reinstated the proclamation of
Respondent Candao. The Comelec held that in the absence of a strong evidence
establishing the spuriousness of the returns, the basic rule that the election returns shall
be accorded prima facie status as bona fide reports of the results of the count of the
votes for canvassing and proclamation purposes must perforce prevail.
[7]

Petitioner filed a motion for reconsideration. Subsequently, he also filed a motion
for technical examination of the signatures and thumbmarks of the registered voters of
Maganoy appearing in the Voters Affidavit and the List of Voters (CE Forms 1 and 2,
respectively) for the purpose of proving that no election was conducted therein.
On January 16, 1996, the Comelec en banc denied the motions for reconsideration
and technical examination. Hence, this petition for certiorari, praying for the following
reliefs:
a) upon filing of this petition, a restraining order be issued enjoining the
execution and implementation of the resolutions of August 24, 1995 and
January 16, 1996 until further orders by the Honorable Court upon such bond
as may be required;
[8]

b) after due hearing, the resolutions of August 24, 1995 and January 16, 1996
be reversed and set aside;
c) that the proclamation of the private respondent Candao be declared null
and void;
d) that the certificates of canvass of Datu Piang and Maganoy be ordered
excluded in the canvassing by the Provincial Board of Canvassers of
Maguindanao;
e) that the petitioner Gov. Norodin Matalam be ordered proclaimed by the
Provincial Board of Canvassers of Maguindanao as the duly elected governor
in the May 8, 1995 elections;
f) in the alternative, the Comelec be ordered to conduct a technical
examination of CE Forms 1 and 2 of Maganoy, Maguindanao used in the May
8, 1995 elections, and thereafter, the certificate of canvass of Maganoy be
ordered excluded and petitioner be ordered proclaimed as the duly elected
governor of Maguindanao.
[9]

In his memorandum, petitioner added the following prayer:
7. Or as a second alternative, after the technical examination, a Special
Election be conducted in Datu Piang and Maganoy, in the event only that the
Hon. Court will not order the proclamation of the winner on the basis of the
remaining MBC Certificates of Canvass of the 18 towns of Maguindanao
including the results of the Special Elections of May 27, 1995 in 5 precincts
of Datu Piang and 6 precincts of Maganoy.
[10]

The Issue
Petitioner contends that the election returns of Datu Piang were falsified and
spurious, because they were prepared notwithstanding the alleged failure to count all
the ballots therein. Petitioner asserts that the counting of votes for 165 precincts inside
the old Municipal Building was disrupted and cut short by grenade explosions which
allegedly resulted in chaos and pandemonium. In describing the aftermath of the
incident, petitioner cites the report of Election Officer E.J. Klar of Datu Piang, to wit:
1. Only 3 precincts have complete documents including tally boards duly
accomplished by the BEIs;
2. Some boxes only contained detached stubs;
3. Some boxes or majority of the boxes not sealed nor padlocked;
4. Counted and uncounted ballots were mixed together inside the ballot
boxes;
5. xxx the tally boards were also scattered all around the Treasurers
Office.
6. Only 39 precincts received their election returns and these were also
missing;
7. There are BEIs who also brought their tally board to their house;
8. Some BEIs cannot be found or refused to appear;
So we can begin the transferring from the tally board to the election return
after the matching.
Ill just send you my report next time.
[11]

Relying on the dissenting opinion of Commissioner Regalado E. Maambong,
petitioner points out that Section 212 of the Omnibus Election Code requires that the
preparation of election returns must be simultaneous with the counting of ballots.
Petitioner further contends that the election returns and certificates of canvass for
the Municipality of Maganoy were falsified and spurious, as no election was actually
conducted therein. The results reflected in the Statement of Votes (SOV) by precinct
were allegedly farcical, with Petitioner Matalam and his congressional candidate
receiving one or no vote at all in a number of precincts, while Candao and his
congressional candidate were credited with all the votes cast therein. In some
precincts, the number of votes received by Candao even exceeded the number of
registered voters.
[12]

Petitioner also alleges that the SOV by precinct, the Municipal Certificate of
Canvass and the proclamation papers of Maganoy were signed in blank a day before
the elections, as evinced by the sworn statement of the Municipal Treasurer and
concurrent Vice-Chairperson of the MBC. Also presented was a certification from the
Maganoy Election Officer that only two barangays received ballot boxes and election
paraphernalia. Furthermore, joint affidavits were presented by barangay captains and
officials declaring that the Boards of Election Inspectors failed to report for duty in their
respective polling precincts on election day.
In view of these, petitioner argues that the Comelec should have granted the motion
for technical examination to determine whether the signatures and thumbmarks affixed
in CE Forms 1 and 2 belong to the voters therein, as it had done motu proprio in SPA
No. 95-284 involving the Municipality of Parang, Sulu.
Private Respondent Candao vigorously denies the contentions that no counting of
votes was conducted in Datu Piang
[13]
and that no election was held at all in
Maganoy. He rebuts the respective statements of the Maganoy Municipal Treasurer
and the Municipal Election Officer that there were no elections in the said municipality in
May 1995, pointing to their earlier joint affidavit declaring the elections in Maganoy as
free, orderly and peaceful. Candao argues further that the receipt of zero vote by some
candidates for public office does not necessarily make the returns statistically
improbable.
The public respondent, in its comment, contends principally that the allegations in
the petition are insufficient to warrant the issuance of the writ of certiorari. The
resolution of the present issue of fraud is within the powers of public respondent, the
findings of which deserve great credence, in the absence of compelling evidence of a
clear and arbitrary abuse.
[14]
Public respondent suggests that the proper recourse of
private respondent is an election protest.
[15]

The ultimate issue posed is whether the questioned election returns for the
municipalities of Maganoy and Datu Piang could be the proper subjects of a pre-
proclamation controversy and, corollarily, whether said returns should be excluded from
the canvass.
The Courts Ruling
The petition is not meritorious.
May the Comelec in a Pre-Proclamation Case Go Beyond the Face of the Election
Returns?
The Omnibus Election Code defines a pre-proclamation controversy as any
question pertaining to or affecting the proceedings of the board of canvassers which
may be raised by any candidate or by any registered political party or coalition of
political parties before the board or directly with the Commission, or any matter raised
under Sections 233, 234, 235 and 236 in relation to the preparation, transmission,
receipt, custody and appreciation of the election returns.
[16]

Section 243 of the same Code enumerates the issues that may be raised in a pre-
proclamation controversy, to wit:
SEC. 243. Issues that may be raised in pre-proclamation controversy. - The
following shall be proper issues that may be raised in a pre-proclamation
controversy:
(a) Illegal composition or proceedings of the board of canvassers;
(b) The canvassed election returns are incomplete, contain material defects, appear to
be tampered with or falsified, or contain discrepancies in the same returns or in other
authentic copies thereof as mentioned in Sections 233, 234, 235, and 236 of this Code;
(c) The election returns were prepared under duress, threats, coercion, or intimidation,
or they are obviously manufactured or not authentic; and
(d) When substitute or fraudulent returns in controverted polling places were
canvassed, the results of which materially affected the standing of the aggrieved
candidate or candidates.
Stressing that the said enumeration is restrictive and exclusive, the Court
in Sanchez vs. Commission on Elections
[17]
held that:
The scope of pre-proclamation controversy is limited to issues enumerated under
Section 243 of the Omnibus Election Code. The enumeration 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 (sec. 234), appear to have been tampered with,
falsified or prepared under duress (sec. 235) and/or contain discrepancies in the votes
credited to any candidate, the difference of which affects the result of the election
(sec. 236), 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.
[18]

In an obvious attempt to satisfy the restrictive requirements of Sec. 243
and Sanchez, the petitioner claims that the election returns were spurious and
obviously manufactured,
[19]
and prepared under irregular circumstances. In this light,
petitioner characterizes the present case as a pre-proclamation controversy.
[20]

In seeking to prove his characterization, however, petitioner does not claim that the
election returns are incomplete, contain material defects, appear to be tampered with
or falsified, or contain discrepancies x x x which irregularities appear on their face; or
x x x were prepared under duress, threats, coercion, or intimidation or they are
obviously manufactured or not authentic. Neither has he denounced as illegal the
composition or proceedings of the board of canvassers. Rather, he maintains that there
were irregularities aliunde, e.g., (a) the counting of votes in Datu Piang was not
completed; (b) no election was conducted in Maganoy; and (c) grenade explosions
marred the counting of votes in Datu Piang.
That the election returns were obviously manufactured must be evident from the
face of the said documents themselves.
[21]
In a pre-proclamation controversy, the
Comelec, as a rule, is restricted to an examination of the election returns and is without
jurisdiction to go beyond or behind them and investigate election irregularities. Indeed,
in the recent case of Loong vs. Comelec,
[22]
the Court, through Mr. Justice Regino
Hermosisima, Jr., declared that the prevailing doctrine in this jurisdiction xxx is that as
long as the returns appear to be authentic and duly accomplished on their face, the
Board of Canvassers cannot look beyond or behind them to verify allegations of
irregularities in the casting or the counting of the votes.
[23]
(Underscoring supplied.)
Justifying the circumscribed scope of pre-proclamation controversies, Loong cited
the earlier ruling of the Court in Dipatuan vs. Comelec
[24]
and held:
The policy consideration underlying the delimitation both of substantive ground and
procedure is the policy to determine as quickly as possible the result of the election on
the basis of the canvass. Thus, in the case of Dipatuan vs. Commission on Election, we
categorically ruled that in a pre-proclamation controversy, Comelec is not to look
beyond or behind election returns which are on their face regular and authentic returns.
A party seeking to raise issues resolution of which would compel or necessitate
COMELEC to pierce the veil of election returns which appear prima facie regular on
their face, has his proper remedy in a regular election protest. By their very nature, and
given the obvious public interest in the speedy determination of the results of elections,
pre-proclamation controversies are to be resolved in summary proceedings without the
need to present evidence aliunde and certainly without having to go through
voluminous documents and subjecting them to meticulous technical examinations
which take up considerable time.
[25]
(Underscoring supplied.)
The petition must fail because it effectively implores the Court to disregard the
statutory norm that pre-proclamation controversies are to be resolved in a summary
proceeding. He asks the Court to ignore the fact that the election returns appear
regular on their face, and instead to determine whether fraud or irregularities attended
the election process. Because what he is asking for necessarily postulates a full
reception of evidence aliunde and the meticulous examination of voluminous election
documents, it is clearly anathema to a pre-proclamation controversy which, by its very
nature, is to be heard summarily and decided on as promptly as possible.
[26]
A party
seeking to raise issues the resolution of which would compel or necessitate the
Comelec to pierce the veil of election returns which appear prima facie regular on their
face, has his proper remedy in a regular election protest, wherein the parties may
litigate all the legal and factual issues raised by them in as much detail as they may
deem necessary or appropriate.
[27]

The public interest that animates the rule requiring summary resolution of pre-
proclamation controversies was previously explained by the Court thus:
The public policy involved in the rule that pre-proclamation controversies
shall be resolved in summary proceedings, is very real and insistent. The
public interest requires that the position for the filling of which the election
was held should be filled as promptly as possible, even if the proclamation of
the winning candidates should be provisional in nature, in the sense that such
would be subject to the results of the election protest or protests that may be
expected to be filed. The Court is bound by high duty and responsibility to
give effect to this public policy which is enshrined in statutory norms.
[28]

In the present case, petitioner clearly asks too much, for he wants the Comelec and
the Court to look beyond the face of the documents, contrary to the clear mandate
of Loong.
Technical Examination Not Proper in a Pre-Proclamation Controversy
Petitioner also prays for a technical examination of CE Forms 1 and 2. Again, a
technical examination runs counter to the nature and scope of a pre-proclamation
controversy. In Dimaporo vs. Comelec,
[29]
the Court denied a similar supplication for the
reexamination of Dianalan vs. Comelec
[30]
in order to allow a technical examination of the
handwriting and fingerprints in the voters affidavits and voting lists. In Dimaporo, the
Court held:
Petitioners ask the Court to re-examine its decision in Dianalan v.
Commission on Elections, so as to permit petitioners to subject to handwriting
and fingerprint examination the voters affidavits and voting lists and other
voting records in the contested precincts. We are not persuaded by
petitioners arguments on this point. It is important to bear in mind that the
nature, scope and ambit of a pre-proclamation controversy as set out
in Dianalan and Dipatuan and the other cases there cited are determined by
statutory provisions: Section 243 (entitled Issues that may be Raised in Pre-
Proclamation Controversy), 245 (Contested Election Returns) and 246
(Summary Proceedings before the Commission) of the Omnibus Election
Code. As pointed out above in Dipatuan, these statutory provisions reflect a
very definite view of what public policy requires on the matter. It may well
be true that that public policy may occasionally permit the occurrence of
grab the proclamation and prolong the protest situations; that public policy,
however, balances the possibility of such situations against the shortening of
the period during which no winners are proclaimed, a period commonly
fraught with tension and danger for the public at large. For those who
disagree with that public policy, the appropriate recourse is not to ask this
Court to abandon case law which merely interprets faithfully existing
statutory norms, to engage in judicial legislation and in effect to rewrite
portions of the Omnibus Election Code. The appropriate recourse is, of
course, to the Legislative Department of the Government and to ask that
Department to strike a new and different equilibrium in the balancing of the
public interests at stake.
[31]

It is interesting to note that the counsel who prayed for technical examination
in Dimaporo is Pedro Q. Quadra,
[32]
while the counsel for petitioner in this case who
now makes the same request is Pete Quirino-Quadra.
[33]

In support of his prayer for a technical examination, petitioner also cites the
Comelec ruling in SPA No. 95-284, in which the Comelec ordered a similar technical
examination in Parang, Sulu.
It is well to stress that SPA No. 95-284, which was the subject in Loong vs.
Comelec
[34]
recently decided by the Court, involved a petition to annul the election results
or to declare a failure of election, an action which is different from the present pre-
proclamation controversy.
[35]
Loong distinguished between the two actions, thus:
While, however, the Comelec is restricted, in pre-proclamation cases, to an
examination of the election returns on their face and is without jurisdiction to
go beyond or behind them and investigate election irregularities, the Comelec
is duty bound to investigate allegations of fraud, terrorism, violence, and
other analogous causes in actions for annulment of election results or for
declaration of failure of elections, as the Omnibus Election Code denominates
the same. Thus, the Comelec, in the case of actions for annulment of election
results or declaration of failure of elections, may conduct technical
examination of election documents and compare and analyze voters
signatures and fingerprints in order to determine whether or not the elections
had indeed been free, honest and clean. Needless to say, a pre-proclamation
controversy is not the same as an action for annulment of election results or
declaration of failure of elections.
[36]

Presumption That Election Returns Are Valid Not Overcome
Petitioner Matalam contends that the presumption of regularity of the election
returns for Datu Piang and Maganoy had been overcome by his overwhelming
evidence, as presented principally by the Klar Report. We cannot sustain this view.
The Comelec evaluated the evidence presented by the parties, and its conclusion is
contrary to petitioners. The Comelec held that in the absence of a strong evidence
establishing spuriousness of the returns, the basic rule that the election returns shall be
accorded prima facie status as bona fide reports of the results of the count of the votes
for canvassing and proclamation purposes must perforce prevail.
[37]
There appears no
reason for the Court to disturb this factual finding of the Comelec.
It is axiomatic that factual findings of administrative agencies which have acquired
expertise in their field are binding and conclusive on the Court. An application for
certiorari against actions of the Comelec is confined to instances of grave abuse of
discretion amounting to patent and substantial denial of due process, considering that
the Comelec is presumed to be most competent in matters falling within its domain.
[38]

At the outset, it is already clear that, as a rule, there is no necessity for the Comelec
to examine in a pre-proclamation controversy allegations of irregularity that had
allegedly attended the preparation of election returns which, however, do not appear on
the face of the said documents. We hold, just the same, that the Comelec has not
committed a grave abuse of discretion in ruling that petitioner had failed to present
strong evidence sufficient to overcome the presumption that the election returns and the
certificates of canvass were valid.
In respect of the election returns of Datu Piang, the Comelec relied on the following
report of Atty. Jose Beltran, Provincial Election Supervisor of Maguindanao (and
disregarded the aforequoted Report of E.J. Klar which, on the other hand, petitioner
cited):
x x x
The elections in Datu Piang, Maguindanao on May 8, 1995, was initially held in a
peaceful and orderly manner;
From the distribution of the ballot boxes, election documents and other election
paraphernalia in the morning of May 8, 1995, up to the opening of the precincts and
actual casting of votes, no untoward incident was reported by the Acting Election
Officer Eliza Gasmin;
The counting of votes as agreed upon by the contending mayoralty candidates was
centralized in the old Municipal townhall;
The counting of votes started simultaneously at about seven oclock in the evening
and as reported by Election Officer Gasmin, almost all of the Boards of Election
Inspectors completed their counting;
At about 10:30 that same evening when the Board of Election Inspectors were
preparing their election returns, grenade explosion occurred and there was
pandemonium in the canvassing hall. The Boards of Election Inspectors scampered to
safety leaving their ballot boxes and election materials behind. One person was killed
and scores of other persons were wounded.
The following day, Election Inspector Gasmin with the help of her staff and Treasury
personnel, gathered the ballot boxes and other election materials and kept them in the
Treasurers Office;
The Treasurers Office and its premises were cordoned by military authorities and no
one was allowed inside the Treasurers Office.
Election Officer Gasmin reported this incident to the Provincial Election Supervisor.
The Provincial Supervisor immediately invited to a conference the contending parties
and it was agreed upon by and among themselves that an inventory and segregation of
the ballot boxes and documents be done before any counting and canvassing be made.
Election Officer Gasmin failed to recall the different Board of Election
Inspectors. The BEI refused to serve if the venue of the counting and/or canvassing is
not transferred to a safer place.
A new acting Election Officer in the person of Election Officer Eleuterio Klar was
designated. Mr. Klar was able to convince the contending parties to transfer to
Cotabato City.
On May 26, 1995, the transfer was effected, sorting and inventory were undertaken
and after that the counting resumed.
On June 3, 1995, while counting was being completed a grenade explosion inside the
gymnasium in Cotabato City occurred. One soldier was wounded.
On June 5, 1995, partial proclamation was done by the Municipal Board of
Canvassers for the position of Mayor, Vice-mayor and three Councilors. On June 6,
1995, proclamation of 3 additional councilors was made.
To summarize, the conduct of election in Datu Piang was peaceful and orderly until a
trend of the winning mayoralty candidate was established at about 10:30 pm on
election day.
[39]
(Underscoring supplied.)
We note that almost all of the Boards of Election Inspectors had completed the
counting of votes when the grenade explosions disrupted the proceedings. Moreover,
as soon as it was safe to do so, the election officials took steps to safeguard the
election documents by gathering and keeping them in the Treasurers Office, under
constant watch of military authorities that had cordoned off the area. Thereafter, with
the agreement of the parties, an inventory of election documents was conducted and
the counting was continued on June 3, 1995. Although the counting was again marred
by a grenade explosion, the winning candidates were proclaimed on June 5, 1995 and
on June 6, 1995. There have been no allegations that the election documents had been
tampered with, substituted, manufactured or in any way compromised by reason alone
of the disruption in the proceedings. Neither does petitioner allege that the election
returns are irregular on their face. Under the circumstances, we find no sufficient
reason to hold that the election officials, amidst trying conditions, had not adequately
safeguarded the sanctity of the election process or preserved the documents used
therein. We find it difficult to ascribe substance to the prayer for the wholesale
exclusion of all of said election returns in Datu Piang.
Petitioner also asks for the exclusion of all the election returns and the certificates of
canvass in Maganoy on the ground that no election was actually conducted in said
town. This allegation lacks sufficient factual basis.
Petitioner relied on the sworn statement dated July 11, 1995 of Daud K. Dimapalao,
the Municipal Treasurer and Vice-Chairman of the Municipal Board of Canvassers of
Maganoy, Maguindanao that there was never any election in Maganoy, Maguindanao
and I myself when I went to Maguindanao National High School, Poblacion, Maganoy,
in order to vote, there was no precinct established thereat open for election and I am
one of those who failed to cast a vote.
[40]

We find, however, that Dimapalao himself executed an earlier and contrary
statement dated May 13, 1995 not only admitting that elections were actually conducted
in Maganoy, but certifying as well that these were free, orderly and
peaceful.
[41]
Furthermore, the election officer himself, Abas Saga, reiterated in his
affidavit dated June 30, 1995 the peaceful and lawful conduct of the elections.
[42]
In view
of the inconsistent statements of the municipal treasurer, the Comelec cannot be faulted
for not giving credence thereto and relying instead on the positive statement of the
election officer in that locale, whose primary function is to oversee the enforcement of
election laws.
All in all, we cannot ascribe grave abuse of discretion amounting to lack or excess
of jurisdiction against the Comelec for granting prima facie status of validity to the
election returns of Datu Piang and Maganoy, for the purpose of resolving the pre-
proclamation controversy.
It is well to stress that the Court here merely sustains the Comelec position that the
challenged election returns are prima facie regular on their face and may be validly
included in the challenged certificates of canvass. The Court is not ruling that fraud
or terrorism or other irregularities aliunde had or had not attended the elections in
Maguindanao. This is NOT in issue in a pre-proclamation controversy such as the one
before us. This is to be resolved ultimately in a proper electoral protest after the
appreciation of sufficient credible evidence.
Statistical Improbability
Petitioner also argues that the results reflected in various election returns of
Maganoy were statistically improbable. He identifies several precincts where Candao
and his running mate received the same number of votes, while petitioner and his
running mate uniformly received zero. In some other precincts, Candaos total even
exceeded the number of registered voters. In 20 precincts, Candao and Datumanong
were credited with the same number of votes while Matalam and Mentang were credited
with few scattered votes.
[43]
Petitioners argument is based onLagumbay vs. Comelec
[44]
in
which the Court invalidated several election returns as evidently fraudulent and
statistically improbable because all the eight senatorial candidates of one party
garnered all the votes, while all the eight candidates of the other party got nothing.
However, there is a cogent reason why the exclusion of the allegedly statistically
improbable election returns cannot be ruled upon. Even if we assume arguendo that
the said election returns for Maganoy were in fact statistically improbable, this alone
cannot warrant petitioners proclamation. Contrary to the requirement of Section 243 (d)
of the Omnibus Election Code,
[45]
petitioner has failed to demonstrate that the results
reflected in the allegedly statistically improbable returns for the Municipality of
Maganoy alone would materially affect the results of the gubernatorial
contest. Petitioner merely stated that the nullification of all the returns for both
municipalities of Datu Piang and Maganoy would overhaul the lead of Private
Respondent Candao. Although petitioner alleged the number of votes received by the
parties from each of the two municipalities, he has not shown, as earlier
observed,
[46]
their respective vote totals by precincts and/or by towns for the entire
Province of Maguindanao. In view of this, petitioner has utterly failed to persuade the
Court that the nullification of some or even all of the returns from the Municipality of
Maganoy alone would materially affect the standing of the parties, i.e., that petitioner
would win the canvass. In his motion for reconsideration dated August 25, 1995 before
the Respondent Comelec,
[47]
Petitioner Matalam contended that the alleged result of the
canvassing of the certificates of canvass (for the entire province) are as follows:
Candao 157, 844
Matalam 119, 445
(that) (t)he alleged results of Maganoy and Datu Piang are as follows:
Municipality Candao Matalam
Maganoy 30,605 146
Datu Piang 14,049 3,495
Totals 44,654 3,641
(and that) (w)ith the exclusion of Maganoy and Datu Piang, the results are as follows:
Matalam 115,804
Candao 113,190.
An analysis of the above figures supplied by petitioner will show (1) that the exclusion
of all the elections returns in the two towns involved, taken together, would be
necessary to enable petitioner to win; and (2) that the exclusion of the alleged
statistically improbable returns, in fact, of even all the returns in the town of
Maganoy alone would not result in petitioners victory and proclamation. In short, the
rejection of such returns from Maganoy would not alter the election results: Candao
would still win.
In Dimaporo, the Court did not rule on a similar allegation of statistically improbable
election returns, as the nullification thereof would not have materially affected the
election results. In this light, petitioner has not given the Court sufficient reason to
consider his prayer for the nullification of the Maganoy election returns even if we agree
to uphold his plea of statistical improbability.
Epilogue
As already adverted to, both law (principally Sec. 243 of the Omnibus Election
Code) and extant jurisprudence restrict the grounds that may be invoked to nullify
election returns in a pre-proclamation controversy. Aside from the public interest
[48]
that
impels the prompt disposition of these cases, there is another substantial -- not just
technical -- reason why such grounds are limited and why election irregularities in
general cannot be the subjects of pre-proclamation suits. The boards of canvassers,
particularly municipal and provincial, before whom such pre-proclamation controversies
are initiated through timely objections by the parties during the canvass, are ad
hoc bodies that exist only for the interim task of canvassing election returns. They do
not have the facilities, the time and even the competence to hear, examine and decide
on alleged election irregularities,
[49]
unlike regular courts or the Comelec itself or the
electoral tribunals (Presidential, Senate,and House) which are regular agencies of
government tasked and equipped for the purpose. While this Court has time and again
expressed its abhorrence for the nefarious grab the proclamation and prolong the
protest strategy of some candidates, nonetheless, it recognizes the very limited
jurisdiction of municipal and provincial boards of canvassers. Unless the petitioners can
show cogently and clearly their entitlement to the summary exclusion of clearly
unacceptable election returns, this Court will always uphold the constitutional and legal
presumption of regularity in the performance of official functions, and authenticity of
official documents. And because the Court is not a trier of facts, it will have to rely,
absent any clear showing of grave abuse of discretion, on the factual findings of the
Commission on Elections -- the authority tasked by the Constitution to administer and
enforce election laws.
In the present case, the Court notes the passion, energy and vigor with which
petitioner and his counsel have pleaded their cause. But, while they may have
presented enough allegations to warrant an election protest, they have failed to satisfy
the very restrictive grounds required in a pre-proclamation controversy.
The Court agonized over its inability to fully look into the election irregularities
alleged by petitioner, due to the very limited scope of a pre-proclamation
controversy. Thus, the Court reminds lawyers handling election cases to make a
careful choice of remedies. Where it becomes apparent that a pre-proclamation suit is
inadequate, they should immediately choose another timely remedy, like a petition to
annul the election results or to declare a failure of elections or even an election protest,
so that the election irregularities may be fully ventilated and properly adjudicated by the
competent tribunal. They owe this not only to their clients but to the proper
administration of justice.
WHEREFORE, the petition for certiorari is hereby DISMISSED for its failure to show
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the
Commission on Elections. No costs.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Francisco, and Torres, Jr., JJ., concur.
Davide, Jr., J., in the result.
Hermosisima, Jr., J., on leave.



[1]
Penned by Presiding Commissioner Remedios Salazar-Fernando and concurred in by Commissioners
Manolo B. Gorospe and Teresita Dy-Liacco Flores.
[2]
Rollo, p. 37.
[3]
Signed by Chairman Bernardo P. Pardo and Commissioners Remedios S. Fernando, Manolo B.
Gorospe, Graduacion A. Reyes-Claravall, Julio F. Desamito and Teresita Dy-Liacco
Flores. Commissioner Regalado E. Maambong filed a dissenting opinion.
[4]
Ibid, pp. 68-69.
[5]
Petition, p. 8; rollo, p. 10.
[6]
Petition, pp. 7-8; rollo, p. 9-10. In the text of his petition, the petitioner has not included a tabulation of
the canvass by precincts and/or by towns for the entire province. He has limited himself to the
presentation of the figures for the two towns of Maganoy and Datu Piang only.
[7]
Comelec Resolution dated 24 August 1995, p. 3; rollo, p. 37.
[8]
Upon the filing of the petition, the Court resolved only to direct the filing of a Comment, denying in effect
the prayer for the issuance of a TRO.
[9]
Petition, p. 29; rollo, p. 31.
[10]
Petitioners memorandum, p. 35; rollo, p. 443.
[11]
Petition for certiorari, p. 15; rollo, p. 17.
[12]
Id., p. 20; rollo, p. 22.
[13]
Private respondents comment, p. 8; rollo, p. 294.
[14]
Public respondents comment, pp. 5-6; rollo, pp. 337-338.
[15]
Memorandum of public respondent, p. 5; rollo, p. 467.
[16]
Section 241, Omnibus Election Code.
[17]
153 SCRA 68, August 12, 1987.
[18]
Ibid., p. 75.
[19]
Petitioners memorandum, pp. 3-4; rollo, pp. 411-412.
[20]
Ibid., p. 1; rollo, p. 409.
[21]
Dipatuan vs. Comelec, 185 SCRA 86, 93, May 7, 1990.
[22]
Gov. Tupay T. Loong, Barik Sampang, Kartini Maldisa, Yasser Hassan, and Hadja Sapina Radjae vs.
The Commission on Elections, Provincial Board of Canvassers of Sulu, Municipal Board of Canvassers of
Talipao, and Abdusakur Tan, G.R. Nos. 107814-15, and other consolidated cases, May 16, 1996.
[23]
Ibid, pp. 20-21.
[24]
185 SCRA 86, May 7, 1990.
[25]
Ibid., p. 19.
[26]
Section 246, Omnibus Election Code.
[27]
Dimaporo vs. Comelec, 186 SCRA 769, June 26, 1990.
[28]
Ibid., p. 783.
[29]
186 SCRA 769, June 26, 1990.
[30]
Supra.
[31]
I86 SCRA at pp. 786-787.
[32]
186 SCRA, at p. 772.
[33]
Rollo, p. 32.
[34]
Supra.
[35]
Ong vs. Comelec, 221 SCRA 474, April 22, 1993.
[36]
Loong vs. Comelec, supra, p. 21.
[37]
Comelec (Second Division) Resolution, p. 3; rollo, p. 37.
[38]
Padilla vs. Comelec, 137 SCRA 424, July 9, 1985; Aratuc vs. Comelec, 88 SCRA 251, February 8,
1979.
[39]
Memorandum of Atty. Jose Beltran to Comelec Chairman Bernardo Pardo; rollo, pp. 315-316.
[40]
Rollo, p. 93.
[41]
Ibid., p. 304.
[42]
Ibid., pp. 305-306.
[43]
Petition, pp. 20-21; rollo, pp. 22-23.
[44]
16 SCRA 175, January 31, 1966.
[45]
Supra.
[46]
See, footnote no. 6.
[47]
Annex B of the Petition, pp. 19-20; rollo, pp. 57-58.
[48]
See footnote no. 29.
[49]
In Lagumbay which involved senatorial elections, the Comelec sat as the Board of Canvassers. In
contrast to the Provincial Board of Canvassers, the Comelec is a more permanent body which is
adequately equipped to dig deep into a controversy.









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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 182221 February 3, 2010
THEMISTOCLES A. SAO, JR., Petitioner,
vs.
COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF CANVASSERS OF DULAG, LEYTE, FERDINAND A.
SERRANO, in his capacity as Acting Chairman of the Municipal Board of Canvassers of Dulag, Leyte, and MANUEL SIA
QUE, Respondents.
D E C I S I O N
DEL CASTILLO, J .:
This case, with records spanning nearly 2,000 pages, revolves around the simple question of what issues may be properly
alleged in a pre-proclamation controversy. Petitioner has valiantly and passionately argued his case and invoked every available
ground to suspend and annul a proclamation validly made. Unfortunately, argument is not evidence; advocacy is not legitimacy.
The mere invocation of the grounds of a pre-proclamation controversy, without more, will not justify the exclusion of election
returns which appear regular and authentic on their face.
This Petition for Certiorari filed pursuant to Rule 65 in relation to Rule 64 of the Rules of Court, assails the Resolution
1
dated
October 3, 2007 of the Commission on Elections (COMELEC) First Division in SPC Case No. 07-191, as well as the
COMELEC En Bancs Resolution
2
dated February 12, 2008.
Petitioner Themistocles A. Sao (Sao) was the official candidate of Lakas Christian Muslim Democrats (LAKAS-CMD) for
Municipal Mayor of the Municipality of Dulag, Leyte during the May 14, 2007 synchronized national and local elections.
3
Private
respondent Manuel Sia Que (Que) ran for the same position under the auspices of the Liberal Party.
Petitioners Factual Allegations
Sao alleged that after the casting and counting of votes, at about midnight of May 14, 2007, a man was seen carrying a ballot
box that was not locked; he then inserted certain documents in said ballot box, took the aluminum seal, sealed the box, and then
turned it over to the Reception Group. The election returns (ERs) allegedly affected by this anomalous activity were ER Nos.
5301624, 5301603, 5301633, 5301602, and 5301668 (the contested ERs) for Precinct Nos. 49-A, 31-A, 58-A, 30-A, and 90-A,
respectively (the questioned precincts).
During the canvassing at the Dulag Municipal Hall, Sao sought to have the contested ERs excluded on the following grounds:
massive fraud, illegal proceedings, and tampered/falsified and obviously manufactured returns. He alleged that timely oral
objections were made, and the written Petition for Exclusion was filed with the Municipal Board of Canvassers (MBOC)
4
on May
15, 2007 at 6:50 p.m.
5
together with affidavits prepared by his brother, Tancredo A. Sao, and a certain Peter C. Alicando.
6
Upon
the filing of the Petition for Exclusion, canvass of the contested ERs was deferred.
Sao further alleged that in the morning of May 16, 2007, Lydia Camposano (Camposano), Election Officer for Dulag, and
Chairperson of the MBOC, was overheard calling a certain "sir" over the telephone to ask for a ruling. The telephone
conversation was video recorded by Wilfredo O. Lazar (Lazar), who executed an affidavit attesting to said occurrence.
7
Sao,
through counsel, then verbally moved for the inhibition of Camposano as MBOC Chairman on the ground of bias and for
prejudgment of the election results. Camposano allegedly acknowledged that she was talking to her superior, Atty. Jose Nick
Medros, Director III of Region VIII and Chairman of the Leyte Provincial Board of Canvassers, but declined to inhibit herself until
she was ordered to do so by her superiors. The canvassing continued.
At around 9:00 p.m. of May 16, 2007, Sao filed his written Petition for Inhibition together with the affidavit of Lazar, reiterating
his request for the inhibition of the MBOC Chair.
8
At midnight of May 16, 2007, Camposano inhibited herself and declared the
canvassing temporarily adjourned.
At around 5:00 p.m. of May 17, 2007, Sao received a copy of the COMELEC Regional Offices Memorandum designating
Ferdinand Serrano (Serrano) as the Acting Election Officer and MBOC Chairperson.
9
Canvassing resumed at about 6:00 p.m. of
May 17, 2007, during which Serrano verbally ruled that the contested ERs would be opened. Serrano promised that this ruling
would be put in writing within 24 hours. Thereafter, petitioner, through counsel, filed a Notice of Appeal at 5:00 a.m. of May 18,
2007
10
covering the contested ERs.
Finally, Sao claimed that instead of suspending the canvass as required by law and the canvassing rules, Serrano proceeded to
hastily open and canvass the contested ERs. Despite the filing of petitioners Notice of Appeal, and the fact that the exclusion of
the contested ERs would materially affect the results of the election,
11
the MBOC neither made a written ruling nor elevated the
appeal to the COMELEC together with the MBOCs report and records of the case. Instead, the MBOC proclaimed Que as
Municipal Mayor.
Private Respondents Factual Allegations
On the other hand, Que alleged that in the early morning of May 15, 2007, the MBOC of Dulag, Leyte, convened and started to
canvass the ERs.
12
At around 3:46 a.m. of May 15, 2007, the ER from Precinct No. 30-A was temporarily set aside because of
lack of data on the number of registered voters, voters who actually voted, and excess and rejected ballots. At the time that this
ER was opened, no objection to its inclusion was made.
13

At around 6:15 a.m. of May 15, 2007, the Board of Election Inspectors (BEI) from Precinct No. 30-A appeared before the MBOC
to complete the data. This time counsel for Sao complained that the LAKAS-CMD copy had imprints but BEI Chairperson Ruel
Congzon explained that the imprints were due to the carbonized duplicate forms, and that the copies given to the various political
parties were borrowed by the watchers so they could copy the election results. Not finding the explanation satisfactory, counsel
for petitioner moved for the exclusion of said ER because of material defects in the return. Camposano ruled that the ER from
Precinct No. 30-A would be set aside until the submission of petitioners written objection.
14

Meanwhile, at around 5:20 a.m. of May 15, 2007, petitioners counsel verbally moved for the exclusion of the ERs from Precinct
Nos. 31-A, 49-A, and 58-A on the ground that the ballot boxes were opened. The ERs were set aside and the members of the
BEI from said precincts were summoned to appear before the MBOC.
15

At around 6:30 p.m. of May 15, 2007, counsel for petitioner likewise orally objected to the inclusion of the ER from Precinct No.
90-A on the ground that it had been tampered with and contained many erasures.
16

At 6:50 p.m. of May 15, 2007, petitioners counsel submitted a written Petition for Exclusion of the five contested ERs.
17
Canvass
of the contested ERs was deferred until the submission of Ques comment. On May 16, 2007 at 10:49 a.m., Que submitted his
written Opposition.
18

At around 9:17 p.m. of May 16, 2007, petitioner filed a Petition for Inhibition of Camposano.
19
Subsequently, at 12:30 a.m. of May
17, 2007, Camposano manifested that she would inhibit herself as MBOC Chairperson.
20
At 1:12 a.m. of May 17, 2007,
canvassing was temporarily adjourned to await the appointment of a new MBOC Chairperson.
21

Canvassing resumed at 5:55 p.m. of May 17, 2007, when the MBOC was reconvened with Serrano as Acting Chairperson
22
at
which time, 25 precincts were not yet canvassed. Serrano explained that he was required by law to finish the canvass, and that
the BEIs assigned to the various questioned precincts would be summoned. He also stated that "these allegations cant be
determined if we wont open the election returns x x x the BOC will ascertain if the election return has been tampered [with]. We
will see if statistical data of ballots are filled out and [ask] the BEI to correct the statistical data about the ballots which were not
correct".
23

While the ERs were being canvassed, counsel for petitioner did not immediately manifest her intention to appeal the ruling on the
canvassing of ER in the questioned precincts. The Minutes of the Canvass provide:
Precinct Minutes
90-A
24
Precinct 90A of San Rafael completed the data (contested)
Envelope serial No. 015884
Envelope Seal 0916966 (seal open)
ER seal no seal
ER # 5301668
Valid Votes 164
Spoil 0
Excess 0
Rejected 0
Atty. Palabrica asked if the result will be tallied separately.
Chairman Serrano: If it is a pre-proclamation issue, then I
will separate. I am inviting you to house rules 6 & 8. You
are alleging massive fraud and [tampering of ERs].
Atty. Palabrica: I did lump the reasons for this objection. [I]
am asking if its temporarily tallied.
Chairman Serrano: You alleged that the ER [was] obviously
manufactured.
Atty. Palabrica: The ER was already prepared and that is
why the ballot box was opened. The face of the ER [is]
okey.
Chairman Serrano: Such ground is covered by regular
protest.
Asked Lolita Ducanes, chairman and the third member. Are
these your signatures? Are these the same election returns
that you signed and placed on the ballot box?
Lolita Ducanes: Yes, its my signature and they are the
election returns that we signed.
Atty Palabrica: Asked why the ballot box was opened.
Lolita Ducanes: It was opened in the custody group.
25

30-A
26
At 2:13a.m. to 2:18 p.m. Precinct 30-A of Barangay Arado
was opened and canvassed.
Data
Envelope # 015811
Envelope Seal # 0915307 (seals sticking to envelope)
ER seal # - no inner seal
ER # 5301602
# of valid ballots in compartment for valid ballots 162
# of spoil[ed] ballots 0
# of excess ballots 0
# of rejected ballots 0
Atty. Palabrica: had it noted that BEI of 30-A of Brgy. Arado
did not give a certificate of votes to the Lakas watchers.
58-A
27
At 2:21 a.m. to 2:40 a.m., Precinct 58-A of Barangay Luan
was opened and in good condition.
Data
Envelope # 015854
Envelope Seal # 0916088
ER inner seal # - 0916087
ER # 5301633
# of valid ballots 162
# of spoiled ballots 0
# of excess ballots 0
# of rejected ballots 0
49-A
28
At 2:40 a.m. to 2:48 a.m. Precinct 49A of Barangay Camote
was opened and canvassed.
Data
Envelope # 015803
Envelope Seal # 015803 envelope partly good otherwise
in good condition
ER seal # - 0915855
ER # 5301624
# of valid ballots 167
# of spoil[ed] ballots 0
# of excess ballots 0
# of rejected ballots 0
31-A
29
At 2:55 a.m. to 3:05 a.m., Precinct 31-A of Barangay Batug
was opened and canvassed.
Envelope Serial # - 015808 (The envelope is torn a little at
the side otherwise in good condition)
Envelope Seal # 0915327
ER seal # - 0915326
ER # 5301603
# of valid ballots 180
# of spoil[ed] ballots 0
# of excess ballots 0
# of rejected ballots 0
Chairman Serrano: Called the BEI members:
BEI Chairman - Fatima Ychon
Poll Clerk - Jeralyn Peque,
Third Member - Noel Lagunzad.
Chairman Serrano: Asked the BEI who prepared the
election return.
BEI members: Replied they were the one who prepared the
election return #5301603 of Brgy. Batug.
At 3:00 a.m. of May 18, 2007, all ERs for the municipality had been canvassed and the canvassing was ordered terminated.
30

COMELEC Proceedings
On May 28, 2007, petitioner filed a Petition for Annulment of Proclamation and/or Proceedings of the Municipal Board of
Canvassers of Dulag, Leyte, before the COMELEC, which was docketed as SPC Case No. 07-191 and raffled to the First
Division.
31
This petition was amended on July 12, 2007 by impleading Que as a necessary party.
32
In the meantime, Que
assumed his position on June 30, 2007.
In his petition, Sao argued that the MBOC violated Section 20, Republic Act (RA) No. 7166
33
and Section 39 of COMELEC
Resolution No. 7859.
34
Petitioner also sought to exclude the contested ERs from the canvass, on the ground that these were
tampered with or obviously manufactured. Finally, he also sought that he be declared and proclaimed, after the exclusion of the
contested ERs, as the winning candidate for the position of Municipal Mayor of that municipality.
Que filed his Answer to the petition on July 26, 2007.
35
The MBOC, through Serrano, filed a separate Consolidated Answer dated
July 25, 2007.
36

After hearing the case on August 1 and 13, 2007, the COMELEC First Division directed the parties to submit their respective
memoranda.
37
Thereafter, the COMELEC issued its Resolution dated October 3, 2007 upholding the proclamation of Que:
38

x x x A pre-proclamation controversy refers to any question pertaining to or affecting the proceedings of the board of canvassers
which may be raised by any candidate or by any registered political party or coalition of political parties before the board or
directly with the Commission, or any matter raised under Sections 233, 234, 235, and 236 of the Omnibus Election Code in
relation to the preparation, transmission, receipt, custody and appreciation of election returns. On the other hand, Section 243 of
the Omnibus Election Code enumerates the issues that may be raised in a pre-proclamation controversy, viz:
1. Illegal composition or proceedings of the board of canvassers;
2. The canvassed election returns are incomplete, contain material defects, appear to be tampered with or
falsified, or contain discrepancies in the same returns or in other authentic copies thereof as mentioned in
Sections 233, 234, 235 and 236 of the Omnibus Election Code;
3. The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously
manufactured or not authentic; and
4. When substitute or fraudulent returns in controverted polling places were canvassed, the results of which
materially affected the standing of the aggrieved candidate.
It is likewise settled that the above enumeration of the grounds that [many] be properly raised in a pre-proclamation controversy
is restrictive and exclusive.
In the case at bar, as borne out by the records, petitioner anchors his petition for the exclusion of the election returns from
Precinct Nos. 49A, 31A, 58A, 31A, and 90A on the following grounds: that the election returns were (1) obviously manufactured;
(2) tampered or falsified; [3]that there was massive fraud; and [4] illegal proceedings. In support thereto, petitioner attached the
affidavits of his two (2) supporters, who attested that they saw open ballot boxes from Precinct Nos. 49A, 31A, and 58A. A
painstaking examination of the records, however, shows that petitioner miserably failed to substantiate his allegations that the
election returns were obviously manufactured, tampered with, that massive fraud attended the preparation thereof, and that the
proceedings of the board were illegal.
There is an avalanche of jurisprudence which states that to justify the exclusion of election returns, the allegations that the
election returns were obviously manufactured must be evident from the face of the said documents. In the case at point,
however, a meticulous examination of the contested election returns copies for the Commission, as well as the copy for the
dominant majority party indubitably showed that there is neither a compelling nor cogent reason to warrant their exclusion.
In the same vein, petitioner failed not only to adduce evidence but [also[ to prove his allegation of massive fraud or illegality of
the proceedings of the board. A contrario, the MBoC had done nothing [amiss. Rather it tolerated] maximum x x x liberal
interpretation of election laws in favor of the petitioner for, despite the clear absence of an issue cognizable as a pre-
proclamation controversy and non-compliance with the rule on submission on petitions or objections before it, the board both
under the chairmanship of Camposano and Serrano [allowed] the petitioner x x x to submit his petition. [It also addressed] the
issues/concerns raised, as shown in the Minutes of the Proceedings of the Board. The Board is correct in not giving credence to
petitioners petition for exclusion [of the questioned returns] as it has been shown that there are no valid grounds raised thereon
which falls within the ambit of Section 234 of the Election Code.
Petitioner moved for reconsideration
39
but the motion was denied by the COMELEC En Banc on February 12, 2008.
40

Hence, this petition.
The Parties Arguments
Petitioner insists that all five contested ERs were written by only one person, and these ERs were surreptitiously presented
before the MBOC. Thus, he argues that the issues raised before the MBOC, namely, that the contested ERs were tampered with
and/or falsified, obviously manufactured, and subject of massive fraud, are pre-proclamation controversies as defined in Section
241 of the Omnibus Election Code and fall within the contemplation of Section 243(b) of said Code. As such, the contested ERs
should have been excluded from the canvass. Consequently, the MBOCs proclamation of Que violated Section 39 of
Commonwealth Act No. 7859 and Section 20 of RA 7166.
On the other hand, Que argues that the allegations raised by petitioner on the contested ERs are not proper in a pre-
proclamation controversy; that petitioner failed to substantiate his claim that the contested ERs were obviously manufactured,
tampered with, or falsified; and that petitioner failed to follow the strict and mandatory procedure under Section 20 of RA 7166
and COMELEC Resolution No. 8969 for manifesting an appeal.
Our Ruling
The petition is without merit.
A pre-proclamation controversy, as defined in Batas Pambansa (BP) Blg. 881, otherwise known as the Omnibus Election Code of
the Philippines, is:
any question pertaining to or affecting the proceeding of the board of canvassers which may be raised by any candidate or by
any registered political party or coalition of political parties before the board or directly with the Commission, or any matter raised
under Sections 233, 234, 235 and 236 in relation to the preparation, transmission, receipt, custody and appearance of the
election returns.
41

Procedural Matters
It is settled that a pre-proclamation controversy is summary in character;
42
indeed, it is the policy of the law that pre-proclamation
controversies be promptly decided, so as not to delay canvass and proclamation.
43
The Board of Canvassers (BOC) will not look
into allegations of irregularity that are not apparent on the face of ERs that appear otherwise authentic and duly accomplished.
44

Consistent with the summary character and limited scope of a pre-proclamation controversy, Section 20 of RA 7166 lays down
the procedure to be followed when ERs are contested before the BOC.
45
Compliance with this procedure is mandatory, so as to
permit the BOC to resolve the objections as quickly as possible. Thus, we held in Siquian, Jr. v. Commission on Elections
46]
that:
Compliance with the period set for objections on exclusion and inclusion of election returns is mandatory. Otherwise, to allow
objections after the canvassing would be to open the floodgates to schemes designed to delay the proclamation and frustrate the
electorates will by some candidates who feel that the only way to fight for a lost cause is to delay the proclamation of the winner.
It should be noted that proceedings before the Board of Canvassers is summary in nature which is why the law grants the parties
a short period to submit objections and the Board a short period to rule on matters brought to them. x x x
47]

Section 20 of RA 7166 and Section 36 of COMELEC Resolution 2962 provide that any candidate may contest the inclusion of an
ER by making an oral objection at the time the questioned return is submitted for canvass; the objecting party shall also submit
his objections in writing simultaneously with the oral objections. The BOC shall consider the written objections and opposition, if
any, and summarily rule on the petition for exclusion. Any party adversely affected by such ruling must immediately inform the
BOC if he intends to appeal such ruling.
After the BOC rules on the contested returns and canvasses all the uncontested returns, it shall suspend the canvass. Any party
adversely affected by the ruling has 48 hours to file a Notice of Appeal; the appeal shall be filed within five days. Upon receipt of
the notice of appeal, the BOC will make its report to the COMELEC, and elevate the records and evidence.
Moreover, pursuant to Section 235 of the Omnibus Election Code, in cases where the ERs appear to have been tampered with,
altered or falsified, the COMELEC shall examine the other copies of the questioned returns and, if the other copies are likewise
tampered with, altered, falsified, or otherwise spurious, after having given notice to all candidates and satisfied itself that the
integrity of the ballot box and of the ballots therein have been duly preserved, shall order a recount of the votes cast, prepare a
new return which shall be used by the BOC as basis for the canvass, and direct the proclamation of the winner accordingly.
Based on the records of this case, we find that petitioner failed to timely make his objections to the contested ERs.
The minutes of the proceedings before the MBOC reveal that the contested ERs were presented for inclusion in the canvass,
and then orally objected to by the petitioner, at the following times:
Precinct No. Time of Presentation for
Canvass/Oral Objection
Grounds for Objection
30-A
48
May 15, 2007; 6:15 a.m. Material defect
31-A
49
May 15, 2007; 5:20 a.m. Ballot boxes open
49-A
50
May 15, 2007; 5:20 a.m. Ballot boxes open
58-A
51
May 15, 2007; 5:20 a.m. Ballot boxes open
90-A
52
May 15, 2007; 6:30 p.m. Tampering; many erasures
However, only one written petition for exclusion was filed for the five contested ERs at 6:50 p.m. of May 15, 2007.
53
Of course the
law does not intend that election lawyers submit their written objections at exactly the same second as their oral manifestation;
however, a lapse of over 12 hours, long after the ERs have been presented for canvass, is simply inexplicable and unacceptable.
It is also irregular that counsel for petitioner lumped all the objections into one petition for exclusion. We recognize that this is
commonplace among election practitioners, intended for the convenience of the advocate. However, in cases like these, where
each ground for exclusion is separate and distinct, merging written objections leads to unnecessary chaos in proceedings before
the MBOC, and is here - as a disservice to the clients.
No evidence that the election returns were falsified or tampered with.
While we are willing to overlook the procedural lapses committed by the petitioner his manifestation and subsequent Notice of
Appeal do not serve to overturn the assailed Resolutions. We find that the MBOC did not err in proclaiming the private
respondent, since the unsubstantiated issues raised by the petitioner were not proper for a pre-proclamation controversy. As we
explained, claims that contested ERs are obviously manufactured or falsified must be evident from the face of the said
documents themselves.
54
But counsel for petitioner herself admitted that "on their face", the ERs were "okey". Contrary to
petitioners passionate remonstrations, there is absolutely no indication that the contested ERs were falsified or tampered with.
As such, there was no valid ground to delay the proclamation.
Petitioner anchors his claim of falsification and tampering on the allegation that the genuine ERs were replaced with
manufactured returns, as evidenced by the purported similarity in handwriting of the contested ERs. Essentially, petitioner argues
that the contested ERs cannot be trusted because all five of the contested ERs were prepared by one person; thus, no copy of
the return can be trusted and there must be a recount of the ballots. He claims that
the copies of the questioned election returns for both the dominant majority party as well as submitted to COMELEC and that of
the dominant minority party, are duplicate copies of the original which are equally tainted with irregularity.
Unfortunately, petitioner has failed to substantiate these allegations. On this, the COMELEC En Banc ruled:
x x x First, We cannot give due credence to the affidavits of Mr. Peter Alicando and Mr. Tancredo Sao considering the infirm
nature of affidavits. Second, affiant Sao is the brother of herein petitioner and his affidavit may most likely be considered as self-
serving.
In Salafranca v. Philamlife (Pamplona) Village Homeowners Association, Inc., the Supreme Court held:
"It is settled that no undue importance should be given to a sworn statement of affidavit as piece of evidence because, being
taken ex parte, an affidavit is almost always incomplete and inaccurate".
Nevertheless, the crux of the affidavits above-mentioned pertains to the alleged opening of a ballot box by a man who placed
several documents therein. While a picture was attached to show a person purportedly placing something inside a ballot box, it is
not safe to assume that some irregularity indeed took place. What is worth noting is the fact that while petitioner claims massive
fraud and tampering, the pieces of evidence only show a single ballot box being opened by an unknown person that is for one (1)
precinct alone and definitely not for five (5) precincts as claimed by the petitioner. This notwithstanding, it is submitted that the
ground relied upon may best be addressed in a protest case.
x x x x
Finally, an examination of the contested election returns will show that the same appear to be regular and devoid of any signs of
tampering or that the same were manufactured. The allegation that the same were written by one hand does not hold water. x x
x
55
(citations omitted)
Absent any clear showing of grave abuse of discretion, this Court is bound to rely on the findings and conclusions of the
COMELEC - the authority tasked by the Constitution to administer and enforce election laws.
56

At any rate, even if we take a second look at the facts, petitioner has still not proven that the ERs were spurious, falsified, or
manufactured. Consider the following:
First, LAKAS-CMD was the dominant majority party in 2007.
57
As such, its watchers would have been given a copy of the ERs in
the questioned precincts by the BEI itself. It was never claimed that LAKAS-CMD never received its copy of the ERs. It seems
rather incredulous, therefore, that ALL the ERs from the questioned precincts were allegedly surreptitiously replaced.
Second, official watchers from the camps of both LAKAS-CMD and petitioner had the opportunity to take down the tally of votes
and obtain a Certificate of Votes from the BEI. Despite this, there has been no allegation that the votes recorded in favor of
petitioner were not the true votes cast in the election.lawph!l
Third, the members of the BEI from the questioned precincts themselves affirmed that they prepared the contested ERs.
Fourth, petitioner never deigned to present any proof on his claim of similarity in handwriting no expert opinions, no testimony,
no technical examination. Unfortunately, it is not at all evident from the returns that these were manufactured or fabricated.
Unlike a pre-proclamation controversy, the annulment proceedings before the COMELEC were not summary in
character;
58
petitioner had every opportunity to ventilate his case and substantiate his allegations before the Commission below.
This notwithstanding, petitioner failed to present any evidence sufficient to overcome the presumption that the contested ERs
were valid.
WHEREFORE, the Petition for Certiorari is hereby DISMISSED for lack of merit. The Resolution of the Commission on Elections
First Division dated October 3, 2007 in SPC Case No. 07-191 dismissing petitioners Petition for Annulment of Proclamation
and/or Proceedings of the Municipal Board of Canvassers of Dulag, Leyte, and the Resolution of the Commission on
Elections En Banc dated February 12, 2008 denying petitioners motion for reconsideration, are AFFIRMED.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO
Associate Justice
RENATO C. CORONA
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
ROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE P. PEREZ
Associate Justice
JOSE C. MENDOZA
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
1
Rollo, pp. 63-71; penned by Commissioner Romeo A. Brawner and concurred in by Commissioner Resurrecion
Z. Borra.
2
Id. at 72-76; penned by Commissioner Rene V. Sarmiento and concurred in by Commissioners Romeo A.
Brawner, Nicodemo T. Ferrer, and Moslemen T. Macarambon.
3
Id. at 122-123.
4
Originally composed of Election Officer Lydia S. Camposano as Chairperson, Mr. Enrique Cabaobao as Vice-
Chairman, and Ms. Joquinita P. Capili as Secretary.
5
Rollo, pp. 124-125.
6
Id. at 126-130.
7
Id. at 139.
8
Id. at 136-138.
9
Id. at 141.
10
Id. at 143-144.
11
The total number of votes cast for the petitioner was 8,915 votes while the total number of votes cast for the
private respondent was 9,092 votes. The total number of votes covered by the contested election returns is 799
votes, of which 288 were credited to petitioner and 511 were credited to the private respondent, as follows:
Election Return Precinct No. Barangay No of Contested Votes
Sano Que
5301602 30-A Arado 42 118
5301603 31-A Batug 47 123
5301624 49-A Camote 74 87
5301633 58-A Luan 72 86
5301668 90-A San Rafael 53 97
TOTAL


288

511
12
Minutes on the National, Provincial, and Local May 14, 2007 Elections of Dulag, Leyte, p. 2, Petitioners Annex
"U" (hereinafter, Minutes); rollo, pp. 284.
13
Id.
14
Id. at 3; id. at 285.
15
Id.
16
Minutes, p. 4; id. at 286.
17
Rollo, pp. 124-125.
18
Minutes, p. 4; id. at 286.
19
Id. at 8; id. at 290.
20
Id. at 9; id. at 291.
21
Id. at 10; id. at 292.
22
Id.
23
Id.
24
Id. at 12; id. at 292.
25
Id.
26
Id. at 14; id. at 296.
27
Handwritten Notes of MBOC Secretary Joaquinita Capili; Records, Vol. II, p. 45.
28
Minutes, p. 14, rollo, p. 296.
29
Id. at 14-15; id. at 310-311.
30
Id. at 15; id. at 197.
31
Records, Vol. I, pp. 1-45.
32
Id. at 55-93.
33
An Act Providing For Synchronized National And Local Elections And For Electoral Reforms, Authorizing
Appropriations Therefor, And For Other Purposes (1991).
34
General Instructions for the Municipal/City/Provincial and District Board of Canvassers in Connection with the
May 14, 2007 National and Local Elections (April 17, 2007).
35
Records, Vol. I, pp. 100-140.
36
Id. at 152-180.
37
Both petitioner and private respondent filed their respective Memoranda on August 28, 2007; Records, Vol. I,
pp. 206-306. Acting Chairman Serrano filed his Memorandum on September 3, 2007, id. at 345-363; MBOC
Members Capili and Cabaobao also filed a Memorandum on August 31, 2007, id. at 329-342.
38
Rollo, pp. 67-69.
39
Id. at 77-106.
40
Id. at 72-76.
41
See also Sections 233-236 of the Omnibus Election Code, which provide:
Sec. 233. When the election returns are delayed, lost or destroyed. - In case its copy of the election
returns is missing, the board of canvassers shall, by messenger or otherwise, obtain such missing
election returns from the board of election inspectors concerned, or if said returns have been lost or
destroyed, the board of canvassers, upon prior authority of the Commission, may use any of the authentic
copies of said election returns or a certified copy of said election returns issued by the Commission, and
forthwith direct its representative to investigate the case and immediately report the matter to the
Commission.
The board of canvassers, notwithstanding the fact that not all the election returns have been received by
it, may terminate the canvass and proclaim the candidates elected on the basis of the available election
returns if the missing election returns will not affect the results of the election.
Sec. 234. Material defects in the election returns. - If it should clearly appear that some requisites in form
or data had been omitted in the election returns, the board of canvassers shall call for all the members of
the board of election inspectors concerned by the most expeditious means, for the same board to effect
the correction: Provided, That in case of the omission in the election returns of the name of any candidate
and/or his corresponding votes, the board of canvassers shall require the board of election inspectors
concerned to complete the necessary data in the election returns and affix therein their initials: Provided,
further, That if the votes omitted in the returns cannot be ascertained by other means except by
recounting the ballots, the Commission, after satisfying itself that the identity and integrity of the ballot box
have not been violated, shall order the board of election inspectors to open the ballot box, and, also after
satisfying itself that the integrity of the ballots therein has been duly preserved, order the board of election
inspectors to count the votes for the candidate whose votes have been omitted with notice thereof to all
candidates for the position involved and thereafter complete the returns.
The right of a candidate to avail of this provision shall not be lost or affected by the fact that an election
protest is subsequently filed by any of the candidates.
Sec. 235. When election returns appear to be tampered with or falsified. - If the election returns submitted
to the board of canvassers appear to be tampered with, altered or falsified after they have left the hands
of the board of election inspectors, or otherwise not authentic, or were prepared by the board of election
inspectors under duress, force, intimidation, or prepared by persons other than the member of the board
of election inspectors, the board of canvassers shall use the other copies of said election returns and, if
necessary, the copy inside the ballot box which upon previous authority given by the Commission may be
retrieved in accordance with Section 220 hereof. If the other copies of the returns are likewise tampered
with, altered, falsified, not authentic, prepared under duress, force, intimidation, or prepared by persons
other than the members of the board of election inspectors, the board of canvassers or any candidate
affected shall bring the matter to the attention of the Commission. The Commission shall then, after giving
notice to all candidates concerned and after satisfying itself that nothing in the ballot box indicate that its
identity and integrity have been violated, order the opening of the ballot box and, likewise after satisfying
itself that the integrity of the ballots therein has been duly preserved shall order the board of election
inspectors to recount the votes of the candidates affected and prepare a new return which shall then be
used by the board of canvassers as basis of the canvass.
Sec. 236. Discrepancies in election returns. - In case it appears to the board of canvassers that there
exists discrepancies in the other authentic copies of the election returns from a polling place or
discrepancies in the votes of any candidate in words and figures in the same return, and in either case the
difference affects the results of the election, the Commission, upon motion of the board of canvassers or
any candidate affected and after due notice to all candidates concerned, shall proceed summarily to
determine whether the integrity of the ballot box had been preserved, and once satisfied thereof shall
order the opening of the ballot box to recount the votes cast in the polling place solely for the purpose of
determining the true result of the count of votes of the candidates concerned.
42
Chu v. Commission on Elections, 359 Phil. 509, 517 (1999).
43
Omnibus Election Code, Section 246; Abayon v. Commission on Elections, G.R. No. 181295, April 2, 2009.
44
Bandala v. Commission on Elections, 468 Phil. 411, 418 (2004).
45
SEC. 20. Procedure in the Disposition of Contested Election Returns.
(a) Any candidate, political party or coalition of parties contesting the inclusion or exclusion in the canvass
of any election returns on any of the grounds authorized under Article XX or Sections 234, 235 and 236 of
Article XIX of the Omnibus Election Code shall submit their oral objection to the chairman of the board of
canvassers at the time the questioned return is presented for inclusion in the canvass. Such objection
shall be recorded in the minutes of the canvass.
(b) Upon receipt of any such objection, the board of canvassers shall automatically defer the canvassof
the contested returns and shall proceed to canvass the returns which are not contested by any party.
(c) Simultaneous with the oral objection, the objecting party shall also enter his objection in the form for
written objections to be prescribed by the Commission. Within twenty-four (24) hours from and after the
presentation of such an objection, the objecting party shall submit the evidence in support of the
objection, which shall be attached to the form for written objections. Within the same period of twenty-four
(24) hours after presentation of the objection, any party may file a written and verified opposition to the
objection in the form also to be prescribed by the Commission, attaching thereto supporting evidence, if
any. The board shall not entertain any objection or opposition unless reduced to writing in the prescribed
forms.
The evidence attached to the objection or opposition, submitted by the parties, shall be
immediately and formally admitted into the records of the board by the chairman affixing his
signature at the back of each and every page thereof.
(d) Upon receipt of the evidence, the board shall take up the contested returns, consider the written
objections thereto and opposition, if any, and summarily and immediately rule thereon. The board shall
enter its ruling on the prescribed form and authenticate the same by the signatures of its members.
(e) Any party adversely affected by the ruling of the board shall immediately inform the board if he intends
to appeal said ruling. The board shall enter said information in the minutes of the canvass, set aside the
returns and proceed to consider the other returns.
(f) After all the uncontested returns have been canvassed and the contested returns ruled upon by it, the
board shall suspend the canvass. Within forty-eight (48) hours therefrom, any party adversely affected by
the ruling may file with the board a written and verified notice of appeal; and within an unextendible period
of five (5) days thereafter, an appeal may be taken to the Commission.
(g) Immediately upon receipt of the notice of appeal, the board shall make an appropriate report to the
Commission, elevating therewith the complete records and evidence submitted in the canvass, and
furnishing the parties with copies of the report.
(h) On the basis of the records and evidence elevated to it by the board, the Commission shall decide
summarily the appeal within seven (7) days from receipt of said records and evidence. Any appeal
brought before the Commission on the ruling of the board, without the accomplished forms and the
evidence appended thereto shall be summarily dismissed.
The decision of the Commission shall be executory after the lapse of seven (7) days from receipt
thereof by the losing party.
(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the
Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any
proclamation made in violation hereof shall be void ab initio, unless the contested returns will not
adversely affect the results of the election.
46
378 Phil 182 (1999). .
47
Id. at 185-186.
48
Id.
49
Minutes, p. 3, rollo, p. 285.
50
Id.
51
Id.
52
Id. at 4, id. at 286.
53
Rollo, pp. 124-125.
54
Dipatuan v. Commission on Elections, G.R. No. 86117, May 7, 1990, 185 SCRA 86, 93.
55
Rollo, pp. 73-75.
56
Constitution, Art. IX-C, Sec. 2(1).
57
COMELEC Resolution No. 7877, In the Matter of the Accreditation of the Dominant Majority Party, the
Dominant Minority Party, and the Other Six (6) Accredited Major Political Parties in the May 14, 2007 National
and Local Elections (May 2, 2007).
58
In Loong v. Commission on Elections, 326 Phil. 792-793 (1996), we held that:
While, however, the COMELEC is restricted, in pre-proclamation cases, to an examination of the election
returns on their face and is without jurisdiction to go beyond or behind them and investigate election
irregularities, the COMELEC is duty bound to investigate allegations of fraud, terrorism, violence and
other analogous causes in actions for annulment of election results or for declaration of failure of
elections, as the Omnibus Election Code denominates the same. Thus, the COMELEC, in the case of
actions for annulment of election results or declaration of failure of elections, may conduct technical
examination of election documents and compare and analyze voters signatures and fingerprints in order
to determine whether or not the elections had indeed been free, honest and clean. Needless to say, a
pre-proclamation controversy is not the same as an action for annulment of election results or declaration
of failure of elections.

The Lawphil Project - Arellano Law Foundation


Synopsis/Syllabi
EN BANC
[G.R. No. 135716. September 23, 1999]
FERDINAND TRINIDAD, petitioner, vs. COMMISSION ON ELECTIONS
and MANUEL C. SUNGA, respondents.
D E C I S I O N
YNARES-SANTIAGO, J .:
The instant Petition for Certiorari questions the June 22, 1998 Resolution
[1]
of the
Commission on Elections (hereinafter referred to as COMELEC) in SPA No. 95-213,
disqualifying petitioner as a candidate for Mayor of Iguig, Cagayan, in the May 8, 1995
elections. It also questions the October 13, 1998 COMELEC Resolution
[2]
which not only denied
petitioners Motion for Reconsideration, but also annulled his proclamation as elected Mayor in
the May 11, 1998 elections.
This case has been filed before this Court when the Petition for Disqualification of private
respondent (SPA No. 95-213) was dismissed by the COMELEC. Acting on the Petition
for Certiorari of private respondent, this court, in Sunga v. Commission on Elections,
[3]
ordered
the COMELEC to reinstate SPA No. 95-213 and act thereon.
The facts of the case, as found in Sunga v. Commission on Elections, supra, are as follows:
Petitioner (herein private respondent) Manuel C. Sunga was one of the candidates for
the position of Mayor in the Municipality of Iguig, Province of Cagayan, in the May
8, 1995 elections. Private respondent (herein petitioner) Ferdinand B. Trinidad, then
incumbent mayor, was a candidate for re-election in the same municipality.
On 22 April 1995, Sunga filed with the COMELEC a letter-complaint for
disqualification against Trinidad, accusing him of using three (3) local government
vehicles in his campaign, in violation of Section 261, par. (o), Art. XXII, of BP Blg.
881 (Omnibus Election Code, as amended). On 7 May 1995, Sunga filed another
letter-complaint with the COMELEC charging Trinidad this time with violation of
Sec. 261, par. (e) (referring to threats, intimidation, terrorism or other forms of
coercion) of the Omnibus Election Code, in addition to the earlier violation imputed to
him in the first letter-complaint. This was followed by an Amended Petition for
disqualification consolidating the charges in the two (2) letters-complaint, including
vote buying, and providing more specific details of the violations committed by
Trinidad. The case was docketed as SPA No. 95-213.
In a Minute Resolution dated 25 May 1995, the COMELEC 2nd Division referred the
complaint to its Law Department for investigation. Hearings were held wherein
Sunga adduced evidence to prove his accusations. Trinidad, on the other hand, opted
not to submit any evidence at all.
Meanwhile, the election results showed that Trinidad garnered the highest number of
votes, while Sunga trailed second.
On 10 May 1995 Sunga moved for the suspension of the proclamation of
Trinidad. However, notwithstanding the motion, Trinidad was proclaimed the elected
mayor, prompting Sunga to file another motion to suspend the effects of the
proclamation. Both motions were not acted upon by the COMELEC 2nd Division.
On 28 June 1995 the COMELEC Law Department submitted its Report to the
COMELEC En Banc recommending that Trinidad be charged in court for violation of
the following penal provisions of the Omnibus Election Code: (a) Sec. 261, par. (a),
on vote buying; (b) Sec. 261, par. (e), on threats, intimidation, terrorism or other
forms of coercion; and, (c) Sec. 261, par. (o), on use of any equipment, vehicle owned
by the government or any of its political subdivisions. The Law Department likewise
recommended to recall and revoke the proclamation of Ferdinand D. Trinidad as the
duly elected Mayor of Iguig, Cagayan; proclaim Manuel C. Sunga as the duly elected
Mayor, and, direct Sunga to take his oath and assume the duties and functions of the
office.
The COMELEC En Banc approved the findings of the Law Department and directed
the filing of the corresponding informations in the Regional Trial Court against
Trinidad. Accordingly, four (4) informations for various election offenses were filed
in the Regional Trial Court of Tuguegarao, Cagayan. The disqualification case, on the
other hand, was referred to the COMELEC 2nd Division for hearing.
On 2 May 1996 Sunga filed a Second Urgent Motion to Suspend the Effects and
Annul the Proclamation with Urgent Motion for Early Resolution of the Petition. But
in its 17 May 1996 Resolution, the COMELEC 2nd Division dismissed the petition
for disqualification, x x x.
His motion for reconsideration having been denied by the COMELEC En Banc,
Sunga filed the instant petition contending that the COMELEC committed grave
abuse of discretion in dismissing the petition for disqualification x x x.
As we have mentioned, above, private respondents Petition with this Court was granted and
COMELEC was ordered to reinstate SPA No. 95-213 and hear the same.
[4]

Finally, on June 22, 1998, the COMELEC 1st Division (former 2nd Division) promulgated
the first questioned Resolution disqualifying petitioner as a candidate in the May 8, 1995
elections.
[5]
Petitioner filed a Motion for Reconsideration,
[6]
claiming denial of due
process. Private respondent filed his Opposition to the Motion,
[7]
at the same time moving for the
cancellation of petitioners proclamation as elected Mayor in the 1998 elections and praying that
he be proclaimed Mayor instead.
On October 13, 1998, the COMELEC En Banc denied petitioners Motion for
Reconsideration and also annulled his proclamation as duly elected Mayor of Iguig, Cagayan in
the May 11, 1998 elections.
[8]
Private respondents motion to be declared Mayor was, however,
denied. Commissioner Teresita Dy-Liacco Flores rendered a dissenting opinion insofar as the
Resolution annulled the proclamation of petitioner as Mayor in the May 11, 1998 elections,
which she found to be bereft of any legal basis.
Petitioner alleges that the questioned Resolutions were promulgated without any hearing
conducted and without his evidence having been considered by the COMELEC, in violation of
his right to due process. He also contends that the portion of the October 13, 1998 Resolution
annulling his proclamation as Mayor in the May 11, 1998 elections was rendered without prior
notice and hearing and that he was once more effectively denied due process. Petitioner also
adopts the stand of Commissioner Dy-Liacco Flores that his disqualification, if any, under SPA
No. 95-213 cannot extend beyond the three-year term to which he was elected on May 8, 1995,
in relation to which the corresponding Petition for his disqualification was lodged.
In his Comment,
[9]
private respondent assails the arguments raised in the Petition and prays
that he be proclaimed as the elected Mayor in the 1998 elections. Petitioner filed a Reply
[10]
to
private respondents Comment on February 24, 1999. Meanwhile, on February 25, 1999, the
criminal cases filed against the petitioner with the Regional Trial Court of Tuguegarao, Cagayan
were dismissed.
[11]
On March 8, 1999, the Solicitor General filed a Comment for the
COMELEC,
[12]
reiterating the argument that the COMELEC is empowered to disqualify
petitioner from continuing to hold public office and at the same time, barring private
respondents moves to be proclaimed elected in the 1998 elections. Respective Memoranda were
filed by both parties.
The issues before us may be summarized as follows:
1. Was petitioner deprived of due process in the proceedings before the COMELEC insofar as
his disqualification under the May 8, 1995 elections was concerned?
2. Was petitioner deprived of due process in the proceedings before the COMELEC insofar as
his disqualification under the May 11, 1998 elections was concerned?
3. May petitioners proclamation as Mayor under the May 11, 1998 elections be cancelled on
account of the disqualification case filed against him during the May 8, 1995 elections?
4. May private respondent, as the candidate receiving the second highest number of votes, be
proclaimed as Mayor in the event of petitioners disqualification?
The Commission on Elections is the agency vested with exclusive jurisdiction over election
contests involving regional, provincial and city officials, as well as appellate jurisdiction over
election contests involving elective municipal and barangay officials. Unless the Commission is
shown to have committed a grave abuse of discretion, its decision and rulings will not be
interfered with by this Court.
[13]

Guided by this doctrine, we find that no violation of due process has attached to the
COMELECs June 22, 1998 Resolution.
Petitioner complains that while the COMELEC reinstated SPA No. 95-213, it conducted no
hearing and private respondent presented no evidence.
[14]
Yet, this does not equate to a denial of
due process. As explained in Paat v. Court of Appeals
[15]
--
x x x. Due process does not necessarily mean or require a hearing, but simply an
opportunity or right to be heard (Pepsi Cola Distributors of the Phil. V. NLRC, G.R.
No. 100686, August 15, 1995). One may be heard, not solely by verbal presentation
but also, and perhaps many times more creditably and predictable than oral argument,
through pleadings (Concerned Officials of MWSS v. Vasquez, G.R. No. 109113,
January 25, 1995). In administrative proceedings moreover, technical rules of
procedure and evidence are not strictly applied; administrative process cannot be fully
equated with due process in its strict judicial sense (Ibid.) Indeed, deprivation of due
process cannot be successfully invoked where a party was given a chance to be heard
on his motion for reconsideration (Rodriguez v. Project 6 Market Service
Cooperative, G.R. No. 79968, August 23, 1995), as in the instant case, when private
respondents were undisputedly given the opportunity to present their side when they
filed a letter of reconsideration dated June 28, 1989 which was, however, denied in an
order of July 12, 1989 of Executive Director Baggayan. In Navarro III vs. Damasco
(G.R. No. 101875, July 14, 1995), we ruled that:
The essence of due process is simply an opportunity to be heard, or as applied to
administrative proceedings, an opportunity to explain ones side or an 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 requirements are satisfied
when the parties are afforded fair and reasonable opportunity to explain their side of
the controversy at hand. What is frowned upon is the absolute lack of notice or
hearing.
In the case at bar, petitioner was able to file an Answer with Counter Petition and Motion to
Dismiss.
[16]
He was also able to submit his counter-affidavit and sworn statements of forty-eight
(48) witnesses. While he complains that these were not considered by the Hearing Officer, he,
himself, admits that the COMELEC did not rely on the findings of the Hearing Officer but
referred the case to its Second Division. Thus, by the time the Second Division reviewed his
case, petitioners evidence were already in place. Moreover, petitioner was also given a chance
to explain his arguments further in the Motion for Reconsideration which he filed before the
COMELEC. Clearly, in the light of the ruling in Paat, no deprivation of due process was
committed. Considering that petitioner was afforded an opportunity to be heard, through his
pleadings, there is really no denial of procedural due process.
[17]

Being interrelated, we shall discuss the second and third issues together.
We note that petitioners term as Mayor under the May 8, 1995 elections expired on June
30, 1998.
[18]
Thus, when the first questioned Resolution was issued by COMELEC on June 22,
1998, petitioner was still serving his term. However, by the time the Motion for Reconsideration
of petitioner was filed on July 3, 1998, the case had already become moot and academic as his
term had already expired. So, too, the second questioned Resolution which was issued on
October 13, 1998, came at a time when the issue of the case had already been rendered moot and
academic by the expiration of petitioners challenged term of office.
In Malaluan v. Commission on Elections,
[19]
this Court clearly pronounced that expiration of
the challenged term of office renders the corresponding petition moot and academic. Thus:
It is significant to note that the term of office of the local officials elected in the May,
1992 elections expired on June 30, 1995. This petition, thus, has become moot and
academic insofar as it concerns petitioners right to the mayoralty seat in his
municipality (Amatong v. COMELEC, G.R. No. 71003, April 28, 1988, En Banc,
Minute Resolution; Artano v. Arcillas, G.R. No. 76823, April 26, 1988, En Banc,
Minute Resolution) becauseexpiration of the term of office contested in the election
protest has the effect of rendering the same moot and academic (Atienza v.
Commission on Elections, 239 SCRA 298; Abeja v. Tanada, 236 SCRA 60; Yorac v.
Magalona, 3 SCRA 76).
When the appeal from a decision in an election case has already become moot, the
case being an election protest involving the office of the mayor the term of which had
expired, the appeal is dismissible on that ground, unless the rendering of a decision on
the merits would be of practical value (Yorac v. Magalona, supra). This rule we
established in the case of Yorac v. Magalona which was dismissed because it had
been mooted by the expiration of the term of office of the Municipal Mayor of
Saravia, Negros Occidental. x x x.
(underscoring, ours)
With the complaint for disqualification of private respondent rendered moot and academic
by the expiration of petitioners term of office therein contested, COMELEC acted with grave
abuse of discretion in proceeding to disqualify petitioner from his reelected term of office in its
second questioned Resolution on the ground that it comes as a matter of course after his
disqualification in SPA No. 95-213 promulgated after the 1998 election. While it is true that the
first questioned Resolution was issued eight (8) days before the term of petitioner as Mayor
expired, said Resolution had not yet attained finality and could not effectively be held to have
removed petitioner from his office.
[20]
Indeed, removal cannot extend beyond the term during
which the alleged misconduct was committed. If a public official is not removed before his term
of office expires, he can no longer be removed if he is thereafter reelected for another term.
[21]

In this regard, therefore, we agree with the dissenting opinion of Commissioner Teresita Dy-
Liacco Flores in the second questioned Resolution that petitioners disqualification under SPA
No. 95-213 cannot extend beyond the term to which he was elected in 1995.
[22]

Yet another ground to reverse the COMELECs annulment of petitioners proclamation
under the 1998 elections is the undeniable fact that petitioner was not accorded due process
insofar as this issue is concerned. To be sure, this was not part of the first questioned Resolution
which only touched on the matter raised in the complaint the May 8, 1995 elections. Private
respondent merely prayed for the annulment of petitioners proclamation as winner in the 1998
elections in his Opposition to the Motion for Reconsideration. It was with grave abuse of
discretion, then, that the COMELEC went on to annul petitioners proclamation as winner of the
1998 elections without any prior notice or hearing on the matter.
[23]

As per the Certificate of Canvass,
[24]
petitioner obtained 5,920 votes as against the 1,727
votes obtained by private respondent and 15 votes garnered by the third mayoral candidate,
Johnny R. Banatao. This gives petitioner a high 77.26% of the votes cast. There is no doubt,
therefore, that petitioner received his municipalitys clear mandate. This, despite the
disqualification case filed against him by private respondent.
This further lends support to our decision to bar his disqualification insofar as the May 11,
1998 elections is concerned. Indeed, in election cases, it is fundamental that the peoples will be
at all times upheld. As eloquently stressed in Frivaldo v. Commission on Elections
[25]
--
This Court has time and again liberally and equitably construed the electoral laws of
our country to give fullest effect to the manifest will of our people, for in case of
doubt, political laws must be interpreted to give life and spirit to the popular mandate
freely expressed through the ballot. Otherwise stated, legal niceties and technicalities
cannot stand in the way of the sovereign will. Consistently, we have held:
x x x (L)aws 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 (Benito v. Commission on Elections, 235 SCRA 436, 442
[August 17, 1994]).
Finally, we see no error in the COMELECs rejection of private respondents move to be
declared as Mayor on account of petitioners disqualification. To begin with, the issue had been
rendered moot and academic by the expiration of petitioners challenged term of office. Second,
even in law and jurisprudence, private respondent cannot claim any right to the office. As held
by the COMELEC, the succession to the office of the mayor shall be in accordance with the
provisions of the Local Government Code which, in turn, provides that the vice mayor concerned
shall become the mayor.
[26]
Also, in Nolasco v. Commission on Elections,
[27]
citingReyes v.
Commission on Elections,
[28]
we already rejected, once and for all, the position that the candidate
who obtains the second highest number of votes may be proclaimed the winner in the event of
disqualification or failure of the candidate with the highest number of votes to hold office. This
court ratiocinated thus
That the candidate who obtains the second highest number of votes may not be
proclaimed winner in case the winning candidate is disqualified is now settled
(Frivaldo v. COMELEC, 174 SCRA 245 [1989]; Labo, Jr. v. COMELEC, 176 SCRA
1 [1989]; Abella v. COMELEC, 201 SCRA 253 [1991]; Labo, Jr. v. COMELEC, 211
SCRA 297 [1992]; Benito v. COMELEC, 235 SCRA 436 [1994]). The doctrinal
instability caused by see-sawing rulings (Compare Topacio v. Paredes, 23 Phil. 238
[1912] with Ticson v. COMELEC, 103 SCRA 687 [1981]; Geronimo v. Ramos, 136
SCRA 435 [1985] with Santos v. COMELEC, 137 SCRA 740 [1985]) has since been
removed. In the latest ruling (Aquino v. COMELEC, G.R. No. 120265, September
18, 1995) on the question, this Court said:
To simplistically assume that the second placer would have received the other votes
would be to substitute our judgment for the mind of the voter. The second placer is
just that, a second placer. He lost the elections. He was repudiated by either a
majority or plurality of voters. He could not be considered the first among qualified
candidates because in a field which excludes the disqualified candidate, the conditions
would have substantially changed. We are not prepared to extrapolate the results
under the circumstances.
Private respondent claims that there are compelling reasons to depart from this doctrine. He
argues that since the disqualification case filed against the petitioner for the 1995 elections has
been rendered moot and academic, it is with the 1998 elections that its impact must be felt. He
also claims that justice should be given him as victim of petitioners dilatory tactics.
We are not persuaded. On the other hand, the fact that despite the disqualification case filed
against petitioner relating to the 1995 elections, he still won the mandate of the people for the
1998 elections, leads us to believe that the electorate truly chose petitioner and repudiated private
respondent. To allow private respondent, a defeated and repudiated candidate, to take over the
mayoralty despite his rejection by the electorate is to disenfranchise the electorate without any
fault on their part and to undermine the importance and meaning of democracy and the peoples
right to elect officials of their choice.
[29]

Therefore, the Resolution of the COMELEC dated October 13, 1998 which annulled
petitioners proclamation as Mayor of Iguig, Cagayan in the May 11, 1998 elections should be
set aside. On the other hand, the petition filed before the COMELEC against petitioner for
election offenses committed during the May 1995 elections should be dismissed for being moot
and academic, the term of office to which petitioner was elected having already expired.
WHEREFORE, the petition is partly GRANTED. The Resolution of the COMELEC,
dated October 13, 1998 is SET ASIDE insofar as it annuls the proclamation of petitioner as
winner in the May 11, 1998 elections. Insofar as the May 8, 1995 elections is concerned, we find
the issues related thereto rendered moot and academic by expiration of the term of office
challenged and, accordingly, DISMISS the petition lodged in connection therewith. No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Buena, and Gonzaga-Reyes, JJ., concur.
Pardo, J., no part.



[1]

Records, Vol. I, pp. 250-257.
[2]

Id., pp. 300-306.
[3]

G.R. No. 125629, 288 SCRA 76 [1998].
[4]

See Decision in Sunga v. Commission on Elections and Ferdinand B. Trinidad, Records, Vol. I, pp. 202-226;
G.R. No. 125629, 288 SCRA 76 [1998].
[5]

See Note 1.
[6]

Records, Vol. I, pp. 258-264.
[7]

Id., pp. 269-278.
[8]

See Note 2.
[9]

Rollo, pp. 84-111.
[10]

Id., pp. 125-139.
[11]

See Petitioners Memorandum, Annex A, Joint-Report in Criminal Cases Nos. 7114-7117.
[12]

Rollo, pp. 144-153.
[13]

Bulaong v. Commission on Elections, G.R. No. 116206, 241 SCRA 180, 190 [1995], citing
Lucman v. Dimaporo, 144 Phil. 102 [1970]. Cf. Galido v. COMELEC, 193 SCRA 78 [1991]; Rivera v. COMELEC,
199 SCRA 178 [1991].
[14]

Petition, p. 11; Rollo, p. 13.
[15]

G.R. No. 111107, 266 SCRA 167, 178-179 [1997].
[16]

Records, Vol. I, pp. 59-114.
[17]

Salonga v. Court of Appeals, G.R. No. 111478, 269 SCRA 534, 547-548 [1997].
[18]

As per Sec. 43 of R.A. No. 7160.
[19]

G.R. No. 120193, 254 SCRA 397, 403 [1996].
[20]

See Section 13, Rule 18, Part IV of the COMELEC Rules of Procedure.
[21]

Reyes v. Commission on Elections, G.R. No. 120905, 254 SCRA 514, 525-526 [1996].
[22]

See Note 2, at p. 305.
[23]

See Bince, Jr. v. COMELEC, G.R. No. 106291, 218 SCRA 782 [1993].
[24]

Records, Vol. I, p. 276.
[25]

G.R. Nos. 120295 & 123755, 257 SCRA 727, 770-771 [1996].
[26]

See Section 44, R.A. No. 7160.
[27]
G.R. Nos. 122250 & 122258, 275 SCRA 762, 780 [1997].
[28]

G.R. No. 120905, 254 SCRA 514, 525-526 [1996].
[29]

See Benito v. Commission on Elections, G.R. No. 106053, 235 SCRA 436, 441 [1994].
EN BANC
[G.R. No. 152163. November 18, 2002]
SABDULLAH T. MACABAGO, petitioner, vs. COMMISSION ON
ELECTIONS and JAMAEL M. SALACOP, respondents.
D E C I S I O N
CALLEJO, SR., J .:
On May 22, 2001, petitioner Sabdullah T. Macabago was proclaimed by the
Municipal Board of Canvassers as the winning candidate for the position of Municipal
Mayor of Saguiran, Lanao del Sur. Petitioner had a lead of 198 votes over his
adversary, private respondent Jamael M. Salacop.
On June 1, 2001, private respondent filed a petition with the Commission on
Elections (COMELEC) against petitioner and the proclaimed Vice-Mayor and Municipal
Councilors, as well as the members of the Municipal Board of Canvassers, docketed as
SPC-01-234, to annul the elections and the proclamation of candidates in the
Municipality of Saguiaran, Lanao del Sur. Private respondent alleged that there was a
massive substitution of voters, rampant and pervasive irregularities in voting procedures
in Precincts Nos. 19, 20, 28 and 29, and a failure of the Board of Election Inspectors
(BEI) to comply with Sections 28 and 29 of Comelec Resolution No. 3743 and Section
193 of the Omnibus Election Code, thus rendering the election process in those
precincts a sham and a mockery and the proclamation of the winning candidates a
nullity. Private respondent further averred that if his petition were to be given due
course, he would win by a margin of one hundred ninety-four (194) votes over the votes
of petitioner. He thus prayed:
WHEREFORE, foregoing premises considered, it is most respectfully prayed of this
Honorable Commission that the election results in Precincts 19, 20, 28 and 29 be
ordered set aside and considered excluded and the proclamation of the winning
candidates in the said municipality be ANNULLED to reflect the genuine desire of
the majority of the people.
All other reliefs, deemed just and equitable under the circumstances are likewise
prayed for.
[1]

In support of his petition, private respondent appended thereto photocopies of
random Voters Registration Records (VRRs) evidencing the fraud and deceit that
allegedly permeated the electoral process, as well as affidavits tending to prove that
serious irregularities were committed in the conduct of the elections in the subject
precincts.
[2]

In his answer, petitioner denied the truth of the material allegations in the petition
and averred that it raised a pre-proclamation controversy. He further alleged that the
grounds relied upon by private respondent would be proper in an election protest but
not in a pre-proclamation controversy.
[3]

The COMELEC En Banc took cognizance of the petition and on February 11, 2002,
issued an order directing the Election Officer of Saguiran, Lanao del Sur, to bring to and
produce before the COMELEC Office in Manila the original VRRs of the questioned
precincts for technical examination:
WHEREFORE, premises considered, the Commission hereby RESOLVES to direct
Mr. Ibrahim M. Macadato, the Election Officer of Saguiran, Lanao del Sur to produce
the subject original VRRs of the questioned precincts here in Manila for the
appertaining technical examination.
SO ORDERED.
[4]

In the same order, the COMELEC declared that contrary to petitioners claims, the
petition did not allege a pre-proclamation controversy. The Commission characterized
the petition as one for the annulment of the election or declaration of failure of election
in the municipality, a special action covered by Rule 26 of the COMELEC Rules of
Procedure. Accordingly, the COMELEC set aside the docketing of the petition as a
Special Case (SPC) and ordered the redocketing thereof as a Special Action
(SPA). After its examination of the evidence submitted by petitioner, the COMELEC
concluded that there was convincing proof of massive fraud in the conduct of the
elections in the four (4) precincts that necessitated a technical examination of the
original copies of the VRRs and their comparison with the voters signatures and
fingerprints. The COMELEC further noted that since the lead of Macabago was only
124 votes vis--vis the 474 voters of the contested precincts, the outcome of the petition
would adversely affect the result of the elections in the Municipality. In issuing said
Order, the COMELEC relied on its broad powers under the 1987 Constitution and the
pronouncement of this Court in Pantaleon Pacis vs. Commission on
Elections,
[5]
and Tupay Loong vs. Commission on Elections, et al.
[6]

Forthwith, petitioner filed with this Court the instant special civil action for certiorari
under Rule 65 of the 1997 Rules of Civil Procedure, as amended, praying for the
reversal of the February 11, 2002 order of the COMELEC En Banc. Petitioner alleged
that:
6.1.
PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF
JURISDICTION WHEN IT TOOK COGNIZANCE OF AND PASSED UPON THE
PETITION IN SPC NO. 01-234 IN VIOLATION OF SECTION 3, RULE 3 OF THE
COMELEC RULES OF PROCEDURE.
6.2.
PUBLIC RESPONDENT COMELEC EN BANC COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF
JURISDICTION WHEN IT ISSUED ITS ORDER ON FEBRUARY 11, 2002 FOR
THE TECHNICAL EXAMINATION OF THE VOTERS REGISTRATION
RECORDS OF THE REGISTERED VOTERS OF PRECINCT NOS. 19, 20, 28 & 29
OF THE MUNICIPALITY OF SAGUIARAN, LANAO DEL SUR.
[7]

The kernel issues posed in the case at bar are (a) whether petitioners recourse to
this Court under Rule 65 of the 1997 Rules of Civil Procedure, as amended, is in order;
and (b) whether the COMELEC acted without jurisdiction or committed a grave abuse
of its discretion amounting to excess or lack of jurisdiction in taking cognizance of the
petition of private respondent and in issuing the assailed Order.
On the first issue, petitioner avers that he was impelled to file the instant petition
without first filing with the COMELEC a motion for a reconsideration of its order because
under the COMELEC Rules of Procedure, a motion for a reconsideration of an
interlocutory order of the COMELEC En Banc is a prohibited pleading, and that the
COMELEC acted with grave abuse of discretion amounting to excess or lack of
jurisdiction in issuing the assailed order. Private respondent on the other hand insists
that under Rule 64 of the 1997 Rules of Civil Procedure, a special civil action for
certiorari filed with this Court is proper only for the nullification of a final order or
resolution of the COMELEC and not of its interlocutory order or resolution such as the
assailed order in this case.
Section 1, Rule 64, as amended, reads:
SECTION 1. Scope. This Rule shall govern the review of judgments and final
orders or resolutions of the Commission on Elections and the Commission on
Audit.
[8]

Under Section 2 of the same Rule, a judgment or final order or resolution of the
COMELEC may be brought by the aggrieved party to this Court on certiorari under Rule
65, as amended, except as therein provided. We ruled in Elpidio M. Salva, et al. vs.
Hon. Roberto L. Makalintal, et al.
[9]
that Rule 64 of the Rules applies only to judgments
or final orders of the COMELEC in the exercise of its quasi-judicial functions. The rule
does not apply to interlocutory orders of the COMELEC in the exercise of its quasi-
judicial functions or to its administrative orders. In this case, the assailed order of the
COMELEC declaring private respondents petition to be one for annulment of the
elections or for a declaration of a failure of elections in the municipality and ordering the
production of the original copies of the VRRs for the technical examination is
administrative in nature.
[10]
Rule 64, a procedural device for the review of final orders,
resolutions or decision of the COMELEC, does not foreclose recourse to this Court
under Rule 65 from administrative orders of said Commission issued in the exercise of
its administrative function.
[11]

It bears stressing that under Article VIII, Section 1 of the Constitution, judicial power
is vested in the courts. 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. Judicial power is an antidote to and a safety net against whimsical,
despotic and oppressive exercise of governmental power. The aggrieved party may
seek redress therefrom through the appropriate special civil action provided by the
Rules of Court. As to acts of the COMELEC, the special civil action may be one for
certiorari pursuant to Article IX(A), Section 7 of the Constitution.
As a general rule, an administrative order of the COMELEC is not a proper subject
of a special civil action for certiorari.
[12]
But when the COMELEC acts capriciously or
whimsically, with grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing such an order, the aggrieved party may seek redress from this Court via a
special civil action for certiorari under Rule 65 of the Rules.
[13]

Private respondent cannot find solace in the pronouncement in Ruperto Ambil, Jr.
vs. Commission on Elections, et al.
[14]
because the subject matter of the petition therein
was an interlocutory order of a Division of the COMELEC. This Court held that the
remedy of the aggrieved party was first to file a motion for a reconsideration of the order
with the COMELEC En Banc. The raison detre therefor is that under Rule 3, Section
6(c) of the COMELEC Rules of Procedure, any motion for a reconsideration of a
decision, resolution, order or ruling of a Division of the COMELEC has to be referred to
and resolved by the Commission sitting En Banc. A motion for reconsideration filed with
the COMELEC En Banc of an order, ruling or resolution of a Division thereof is a plain,
speedy and adequate remedy therefrom.
We now resolve the second issue. Irrefragably, the petition before the COMELEC
does not pose a pre-proclamation controversy as defined in Article XX, Section 241 of
Republic Act No. 7166, thus:
SEC. 241. Definition. A pre-proclamation controversy refers to any question
pertaining to or affecting the proceedings of the board of canvassers which may be
raised by any candidate or by any registered political party or coalition of political
parties before the board or directly with the Commission.
[15]

Pre-proclamation controversies are properly limited to challenges directed against
the Board of Canvassers and proceedings before said Board relating to particular
election returns to which private respondent should have made specific verbal
objections subsequently reduced to writing. The proceedings are summary in nature;
thus, the reception of evidence aliunde, e.g. the original copies of the VRRs, is
proscribed. In fine, in pre-proclamation proceedings, the COMELEC is not to look
beyond or behind election returns which are on their face regular and authentic
returns.
[16]
Issues such as fraud or terrorism attendant to the election process, the
resolution of which would compel or necessitate the COMELEC to pierce the veil of
election returns which appear to be prima facie regular, on their face, are anathema to a
pre-proclamation controversy. Such issues should be posed and resolved in a regular
election protest.
[17]

In his petition with the COMELEC, private respondent alleged that fraud and
irregularities allegedly perpetrated by unscrupulous individuals who substituted for the
registered voters and voted for the latter in the subject precincts, in conspiracy with the
Board of Election Inspectors, or abetted by the members thereof, attended the electoral
process in the subject precincts. The fraud and the irregularities catalogued by private
respondent required the reception of evidence aliunde. As stated earlier, such grounds
are not proper bases for a pre-proclamation controversy but are appropriate for a
regular election contest within the original jurisdiction of the Regional Trial
Court. Indeed, the Court held in Dimangadap Dipatuan vs. Commission on Elections, et
al.:
[18]

That the padding of the List of Voters may constitute fraud, or that the Board of
Election Inspectors may have fraudulently conspired in its preparation, would not be a
valid basis for a pre-proclamation controversy either. For, whenever irregularities,
such as fraud, are asserted, the proper course of action is an election protest.
Such irregularities as fraud, vote-buying and terrorism are proper grounds in an
election contest but may not as a rule be invoked to declare a failure of election and to
disenfranchise the greater number of the electorate through the misdeeds, precisely, of
only a relative few. Otherwise, elections will never be carried out with the resultant
disenfranchisement of the innocent voters, for the losers will always cry fraud and
terrorism (GAD vs. COMELEC, G.R. No. 78302, May 26, 1987, 150 SCRA 665).
Neither is private respondents petition before the COMELEC one for declaration of
a failure of elections in Saguiran, Lanao del Sur. Section 6, Article 1 of R.A. No. 7166
provides when a failure of election occurs
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 the 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 (Sec. 7, 1978 EC).
[19]

Under Section 5, Article 1 of the aforementioned law, the matter of the
postponement or declaration of failure of election and the calling of a special election as
provided for in Section 6, shall be decided by the COMELEC sitting En Banc by a
majority of its members:
SEC. 5. Postponement of election. 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. (Sec. 4, p.
1, RA 7166).
[20]

Before the COMELEC can grant a verified petition seeking to declare a failure of
election, the concurrence of two (2) conditions must be established, namely: (a) no
voting has taken place in the precincts concerned on the date fixed by law or, even if
there was voting, the election nevertheless resulted in a failure to elect; (b) the votes
cast would affect the result of the election. The Court declared in Ricardo Canicosa vs.
Commission on Elections, et al.,
[21]
that there are only three (3) instances where a failure
of election may be declared, namely:
x x x (a) the election in any polling place has not been held on the date fixed on
account of force majeure, violence, terrorism, fraud, or other analogous causes; (b)
the election in any polling place had been suspended before the hour fixed by law for
the closing of the voting on account of force majeure, violence, terrorism, fraud, or
other analogous causes; (c) after the voting and during the preparation and
transmission of the election returns or 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.
[22]

While fraud is a ground to declare a failure of election, such fraud must be one that
prevents or suspends the holding of an election, including the preparation and
transmission of the election returns. Failure to elect must be understood in its literal
sensewhich is, nobody emerges as a winner.
[23]
The barefaced fact that a candidate
has been proclaimed and has assumed office does not deprive the COMELEC of its
authority to annul any canvass and illegal proclamation.
[24]
A petition for the annulment of
election is not the same as one involving a pre-proclamation controversy. In the fairly
recent case of Tomas T. Banaga, Jr. vs. Commission on Elections, et al.
[25]
with a factual
backdrop similar to this case, the Court held:
We have painstakingly examined the petition filed by petitioner Banaga before the
COMELEC. But we found that petitioner did not allege at all that elections were
either not held or suspended. Neither did he aver that although there was voting,
nobody was elected. On the contrary, he conceded that an election took place for the
office of vice-mayor of Paraaque City, and that private respondent was, in fact,
proclaimed elected to that post. While petitioner contends that the election was
tainted with widespread anomalies, it must be noted that to warrant a declaration of
failure of election the commission of fraud must be such that it prevented or
suspended the holding of an election, or marred fatally the preparation and
transmission, custody and canvass of the election returns. These essential facts ought
to have been alleged clearly by the petitioner below, but he did not.
Private respondent alleged in his petition with the COMELEC En Banc that the
elections ensued in the subject precincts and that petitioner herein emerged as the
winner and was in fact proclaimed as such by the Board of Election Inspectors.
In sum then, the grounds alleged by private respondent in his petition before the
COMELEC are those for a regular election protest and are not proper in a pre-
proclamation controversy; nor is such petition one for annulment of the elections or for a
declaration of failure of elections in the municipality of Saguiran, Lanao del Sur. The
COMELEC should have ordered the dismissal of the petition instead of issuing the
assailed order. The COMELEC thus committed a grave abuse of its discretion
amounting to excess or lack of jurisdiction in issuing the same. The error is correctible
by the special civil action for certiorari.
PREMISES CONSIDERED, the petition is GRANTED. The assailed order is SET
ASIDE. The petition of herein private respondent with the public respondent is
DISMISSED, without prejudice to the filing of a regular election protest, the period for
the filing of which is deemed suspended by the filing of the petition before the
Commission on Elections which gave rise to the petition at bar.
SO ORDERED.
Davide, Jr., Puno, Vitug, Panganiban, Quisumbing, Corona, and Carpio-Morales,
JJ., concur.
Bellosillo, Mendoza, Ynares-Santiago, Carpio, and Austria-Martinez JJ., on official
leave.
Gutierrez, J., in the result.
Azcuna, J., no part.



[1]
Rollo, pp. 28-29.
[2]
Ibid., p. 31.
[3]
Ibid.
[4]
Ibid., p. 33.
[5]
25 SCRA 377 (1968).
[6]
305 SCRA 832 (1999).
[7]
Rollo, pp. 7-8.
[8]
Supra.
[9]
340 SCRA 506 (2000).
[10]
Ricardo Canicosa vs. Commission on Elections, et al., 282 SCRA 512 (1997).
[11]
Corazon L. Cabagnot vs. Commission on Elections, et al., 260 SCRA 503 (1996).
[12]
Tupay Loong vs. Commission on Elections, et al., 305 SCRA 832 (1999).
[13]
Aurora Raymundo vs. PHHC, et al., 114 SCRA 712 (1982).
[14]
344 SCRA 358 (2000).
[15]
Supra.
[16]
Jesus L. Chu vs. Commission on Elections, et al., 319 SCRA 482 (1999).
[17]
Norodin M. Matalam vs. Commission on Elections, et al., 271 SCRA 733 (1997).
[18]
185 SCRA 86 (1990).
[19]
Supra.
[20]
Supra.
[21]
282 SCRA 512 (1997).
[22]
Ibid., p. 515.
[23]
Jesus O. Typoco, Jr. vs. Commission on Elections, et al., 319 SCRA 498 (1999).
[24]
Datu Ampatuan, et al. vs. Commission on Elections, G.R. No. 149803, January 21,
2002.
[25]
336 SCRA 701 (2000).
ecember 19, 1980
G.R. No. L-53581-83
MARIANO J. PIMENTEL, BENJAMIN R. RAMOS, AMANDO AMBULAN, SABINO ANCHETA, JOSE
APOLONIO, EDNA CABANILLA, GAUDENCIO CARINO, ESMENIO TACADENA, ROSALINDA
SAMOY and DELFIN VAGULAR JR., petitioners,
vs.
COMMISSION ON ELECTIONS, HON. PRESIDING JUDGE, COURT OF FIRST INSTANCE OF
QUIRINO, SILVERIO L. PASCUA, FAUSTINO S. TACTAC, JOSE CABANERO, MARIA VALENCIA,
REYNALDO DUPA, ALFREDO LADAO, DAVID GARNACE DOMINGO CASIA MATEO GERVACIO
and PAULA VILLACORTA, respondents.

ABAD SANTOS, J.:
Abad Santos (Vicente), J .:
The vital issue to be resolved in this petition for certiorari and prohibition with preliminary mandatory
injunction is whether or not the Commission on Elections had jurisdiction to issue Resolution No. 9592,
dated March 25, 1980, which (1) required the herein petitioners to answer the petition forcertiorari and
prohibition with preliminary injunction filed by the herein private respondents, thereby taking
cognizance of such special civil action which questioned the validity of an interlocutory order, dated
March 20, 1980, issued by the Court of First Instance of Quirino in Election Cases Nos. 8, 9 and 10,
involving the offices of Mayor, Vice Mayor and Members of the Sangguniang Bayan of the Municipality of
Diffun, Quirino Province; and (2) temporarily restrained said Court of First instance of Quirino from
enforcing said order of March 20. 1980, which denied herein private respondents motion to prevent
the trial court from re-examining the ballots and to the counting of votes cast in favor of petitioners-
contestants to those reflected in the election returns.
The herein petitioners are the contestants while herein private respondents are the contestees in
Election Cases Nos. 8, 9 and 10 which are pending before the court of First Instance of Quirino,
Petitioners-contestants allege in their election protests that they were duly certified candidates or
mayor, vice-mayor and members of the Sangguniang Bayan of the Municipality of Diffun, Quirino,
Province, in the general elections held last January 30, 1980, as shown in the resolution of the
Comelec dated February 4. 1980 attached to the election protests as Annex A) but that they were
not considered as such by the Municipal Board of Canvasser who, consequently, did not count the
votes east in their favor (having considered the same as stray votes) and proceeded of proclaim the
contestees as the duly elected officials oil Diffun. Petitioners contestants contend that had it not been
for the said error in the appreciation of the votes cast in their favor, they would have certainly
emerged as the winners in said election. They therefore pray of said Court of First Instance of Quirino
(1) to fix the bond to be filed by them: (2) to cause to be brought to the court the registration list,
the unused ballots and the documents used in all of the precincts of the municipality of Diffun; (3) to
order the examination of the ballots, using the necessary officers with emoluments to be fixed by said
court: (4) to order the votes cast in favor of contestants to be counted in their favor; and (5) to annul
the proclamation of the contestees and to declare the contestants as the duly elected officials of
Diffun.
In their answers to the election protests, the contestees deny that contestants are duly certified
candidates and allege that during the voting and the counting of votes in the voting centers, the
contestants were not bona fide candidates and it was for this reason that the votes cast in their favor
were not counted. They further allege that even assuming the authenticity of the corrected certified
list of candidates found in Annex A of the election protests, the same does not include the names of
contestants Edna Cabanilla, Gervacio Carino, Esmenio Tacadena and Rosalina Samoy, and that as to
them, therefore, the protests should be summarily dismissed. By way of counter-contest, the
contestees allege that the ballots with votes in favor of KBL which should have been counted in favor
of the contestees (except contestees Jose Cabanero and Reynaldo Dupa) as KBL official candidates
were not so counted in their favor.
During the hearing of said protests, the contestees filed with the CFI of Quirino a pleading dated
March 10, 1980, and entitled: Joint Motion to Limit Reception of Evidence Pursuant to Material
Allegations in the Protests. Alleging that the election protests do not question the proceedings in the
Citizens Election Committees but only those before the Municipal Board of Canvassers, the contestees
pray that only the election returns should be considered in the counting of the votes in favor of the
contestants and that the ballots should not be re-examined for that purpose.
On March 20, 1980, the CFI of Quirino issued an order denying the motion of the contestees. On that
same day the counsel for the contestees orally moved for reconsideration of said order; but the court
denied said motion for reconsideration in an order of even date. Accordingly, the court ordered the
opening of the ballot boxes and the counting of the votes as reflected in the ballots and not in the
election returns.
On March 22, 1980, the contestees filed with the Commission on Elections a petition for certiorari and
prohibition with preliminary injunction seeking to restrain the CFI of Quirino from enforcing its orders
of March 20, 1980. Acting on said petition, the COMELEC issued on March 25, 1980 Resolution No.
9592 which reads as follows:
9592. In the matter of the PETITION FOR certiorari AND PROHIBITION WITH PRELIMINARY
INJUNCTION filed by Petitioners-Contestees Counsel in EAC No. 1-80 Pascua, et al. vs. The Honorable
Presiding Judge, Court of First Instance of Quirino, et al): the Commission RESOLVED (1) to require
the Respondents- Contestants to file an answer, not a motion to dismiss, within ten (10) days from
date of notice hereof, and (2) in the meantime to restrain respondent Presiding Judge from enforcing
his order of March 20, 1980.
In view of such resolution of the COMELEC, the CFI of Quirino issued on April 1, 1980, an order
postponing the hearing of Election Cases Nos. 8, 9 and 10 until such time that a superior Court
orders otherwise or after the petition for certiorari, etc., filed by contestees with the Commission on
Elections has been resolved. Contestants moved for a reconsideration of said order but the CFI of
Quirino denied the same.
Thus, on April 10, 1980, the contestants filed with this Court the present petition for certiorari and
prohibition with preliminary mandatory injunction seeking to annul Resolution No. 9592 of the
Commission on Elections; to prohibit the enforcement of said resolution; and to compel the Court of
First Instance of Quirino to proceed with the hearing of the election cases. Petitioners allege, among
others, that the Commission on Elections has no jurisdiction to take cognizance of the petition
forcertiorari and prohibition filed by the herein private respondents questioning an interlocutory order
issued by the Court of First Instance of Quirino, much less to restrain said court from enforcing said
order.
On April 15, 1980, We required the respondents to file an answer to the petition. On that same day,
We issued an order temporarily restraining the Commission on Elections from enforcing the questioned
resolution to enable the Court of First Instance of Quirino to proceed with Election Cases Nos. 8, 9 and
10.
On May 2, 1980, the private respondents filed their answer to the petition. They contend that since
election cases recognizable by Courts of First Instance are appealable to the Commission on Elections
under Sec. 196 of the 1978 Election Code, said Commission. therefore, has jurisdiction to take
cognizance of petitions for certiorari, prohibition or mandamus involving said cases in aid of its appellate
jurisdiction over the same. Touching on the merit of their petition with the COMELEC, the herein
private respondents allege that since the members of the Board of Canvassers were impleaded as
contestees in Election Cases Nos. 8, 9 and 10 said cases should be limited to a recounting of the votes
as reflected in the election returns, To count the votes through the ballots is, according to them, not
in-keeping with the rules of evidence and jurisprudence, Private respondents further allege that
petitioners Edna Cabanilla, Gaudencio Carino, Esmenio Tacadena and Rosalinda Samoy were not
certified as candidates in the last election, as per Annex A (resolution of the COMELEC dated
February 4, 1980) of the election protests, and, therefore, have no personality in the present petition.
Respondent Commission on Elections filed its answer to the petition on May 16, 1980, alleging, among
others, that it had jurisdiction to issue Resolution No. 9592 and that being interlocutory in nature, said
resolution cannot be challenged in the present petition for certiorari since there is no showing of grave
abuse of discretion committed in its issuance.
On July 3, 1980, We issued a resolution requiring the parties to submit memoranda principally on the
question as to whether or not the Commission on Elections had the power to issue Resolution No.
9592.
Private respondents and respondent Commission on Elections filed their memoranda on August 13,
1980, and September 6, 1980, respectively. Petitioners failed to file their memorandum. Nonetheless,
on December 2, 1980, We resolved to consider the case submitted for decision.
In support of the contention that the Commission on Elections has jurisdiction over petitions
forcertiorari, prohibition and mandamus involving election cases filed with the Court of First Instance by
candidates for municipal offices, the respondents argue as follow: That Section 192 of the 1978
Election Code (P.D. No. 1296) grants the Commission on Elections the power to prescribe the rules to
govern the procedure and other matters relating to election contests; that, accordingly, the COMELEC
issued Resolution No. 1451 prescribing the procedural rules for election contests in the Court of First
Instance involving elective municipal and municipal district offices; that Section 19 of said Rules
provides that the Rules of Court of the Philippines shall serve as supplementary rules in election
contests filed with the Court of First Instance; that under Section 4, Rule 65 of the Rules of Court of
the Philippines, petitions for certiorari, prohibition and mandamus may also be filed with the Court of
Appeals if it is in aid of its appellate jurisdiction; that since the COMELEC exercise appellate
jurisdiction over election cases filed with the Court of First Instance involving municipal offices,
pursuant to Section 196 of the 1978 Election Code, said Commission is, thus, vested with jurisdiction
over petitions for certiorari, prohibition and mandamus involving said election cases, applying by analogy
the quoted provision of Sec. 4, Rule 65 of the Rules of Court of the Philippines.
The fallacy of the foregoing arguments of the respondents lies in the erroneous interpretation of the
aforequoted portion of Sec. 4, Rule 65 of the Rules of Court of the Philippines, as a grant of
jurisdiction to the Court of Appeals and, by analogy, to the Commission on Elections, to take
cognizance of petitions for certiorari, prohibition or mandamus involving cases over which said court or
commission exercises appellate jurisdiction.
Settled is the rule that jurisdiction is conferred only by the Constitution or the law. (Bacalso vs.
Ramolete, October 26, 1967, 21 SCRA 519, 523.) Thus, it cannot be conferred by the Rules of Court
which are neither constitutional provisions nor legislative enactments but mere procedural rules
promulgated by this Court in the exercise of its power to prescribe rules concerning pleading, practice
and procedure in all courts (Sec. 5 (5), Art. X, 1973 Constitution; Sec. 13, Art. VIII, 1935
Constitution).
Accordingly, the aforequoted provision of Sec. 4, Rule 65 of the Rules of Court, cannot be construed
as a grant of jurisdiction to the Court of Appeals over petitions for certiorari, prohibition
or mandamusinvolving cases appealable to it. Much less can such provision be interpreted, by analogy,
as a grant to the Commission on Elections of jurisdiction over petitions for certiorari, prohibition
or mandamusinvolving election cases cognizable by the Court of First Instance and appealable to said
commission under Sec. 196 of the Revised Election Code.
While it is true that the Court of Appeals has jurisdiction over petitions for certiorari, prohibition
ormandamus involving cases appealable to it, the grant of jurisdiction is not by virtue of the aforequoted
provision of Sec. 4, Rule 65 of the Rules of Court, but by express legislative fiat, namely, Sec. 30 of
the Judiciary Act (R.A. No. 296). to wit:
SEC. 30. ORIGINAL JURISDICTION OF THE COURT OF APPEALS. The Court of Appeals shall have
original jurisdiction to issue writs of mandamus, prohibition, injunction, certiorari, habeas corpus, and all
other auxiliary writs s and process in aid of its appellate jurisdiction.
No such legislative grant of jurisdiction exists in the case of the Commission on Elections.
Consequently, respondents contention that the Commission on Elections has Jurisdiction over
petitions for certiorari, prohibition or man mandamus involving election cases cognizable by the Courts of
First Instance and appealable to said Commission cannot be sustained. It results, therefore, that
Resolution, that Resolution No. 9592 was issued by the COMELEC without authority to do so.
WHEREFORE, the petition for certiorari and prohibition is hereby granted. Resolution No. 9592, issued
by the Commission on Elections in EAC No. 1-80 is hereby declared null and void and said Commission
is permanently enjoined from taking any further action on said case except to dismiss the same for
lack of jurisdiction. Costs against private respondents.
SO ORDERED.
EN BANC
[G.R. No. 126394. April 24, 1998]
AQUILINO Q. PIMENTEL, JR., petitioner, vs. COMMISSION ON
ELECTIONS, DOMINADOR MICO, DIONISIO CAOILI, OFELIA
PASTOR, FLOR MERCADO, and MARVELYN
RAMIRO, respondent.
D E C I S I O N
KAPUNAN, J .:
The Commission on Elections or COMELEC, acting as a National Canvassing
Board for the May 8, 1995 elections, while canvassing the returns in the senatorial race,
found a discrepancy between the Provincial Certificate of Canvas for Ilocos Norte and
its supporting Statement of Votes per precinct or municipality for the province, such that
the votes for candidates Juan Ponce Enrile, Franklin M. Drilon, Ramon V. Mitra, as
appearing in the Provincial Certificate of Canvass
[1]
were more than the votes tallied as
appearing in the Statement of Votes,
[2]
thus:
Candidate Votes appearing in the Votes appearing in
the Increase
Statement of Votes Provincial Certificate
of Canvas
Enrile 65,343 95,343 30,000
Drilon 48,726 78,726 30,000
Mitra 42,959 62,959 20,000
On the basis of such discrepancy, the COMELEC motu proprio ordered an
investigation and referred the matter to its Law Department.
[3]

Petitioner Aquilino Pimentel, Jr., himself a senatorial candidate in the May 8, 1995
elections, filed his own complaint with the COMELECs Law Department, docketed as
E.O. Case No.95-294 against Atty. Dominador Mico,
[4]
Atty. Dionisio Caoili and Dr. Ofelia
T. Pastor, Chairman, Vice-Chairman and Member-Secretary, respectively, of the
Provincial Board of Canvassers of Ilocos Norte, Marvelyn Ramiro, Election Assistant for
the COMELEC for San Nicolas, Ilocos Norte and member of the support staff of the
Provincial Board of Canvassers, and Flor Mercado, Elementary School Principal of the
Department of Education, Culture and Sports, Ilocos Norte and also a member of the
support staff of the Provincial Board of Canvassers.
[5]

Petitioner charged respondents with violation of Section 27 of Republic Act No.
6646, otherwise known as the Electoral Reforms Law of 1987, which provides:
x x x the following shall be guilty of an election offense:
x x x
(b) Any member of the board of election inspectors or board of canvassers
who tampers, increases or decreases the votes received by a candidate in
any election or any member of the board who refuses, after proper
verification and hearing, to credit the correct votes or deduct such
tampered votes.
Specifically, petitioner alleged in his affidavit-complaint that:
2. A comparison between the Provincial Certificate of Canvass and the Supporting
Statement of Votes per Municipality for the Province of Ilocos Norte show an
increase in the vote totals for senatorial candidate Enrile from 65, 343 as indicated in
the Statement of Votes by Municipality to 95,343 in words and figures in the
Provincial Certificate of Canvass; senatorial candidate Drilon, from 48,726 to 78,726,
and senatorial candidate Mitra, from 42,959 to 62,959.
3. The said respondents acting together and conspiring with one another were
responsible for the falsification of the tallies for senatorial candidates Enrile, Drilon
and Mitra above mentioned in that as members of the Provincial Board of Canvassers,
the respondents Mico, Caoili and Pastor certified to the correctness of the said tallies
despite the fact those tallies had been padded, added to and falsified and the
respondents Ramiro and Mercado as members of the staff of the respondent Provincial
Board of Canvassers confabulating with each other caused the false tallies to be
recorded in favor of Enrile, Drilon and Mitra in the said Provincial Certificates of
Canvass of Ilocos Norte.
4. By these illegal acts, the respondents willfully, feloniously and intentionally
committed an election offense. The discrepancies were so glaring that under no
circumstance can we say that these were mere honest error.
[6]

The respondents filed their respective counter-affidavits.
[7]
Subsequently, the parties
filed their respective Memoranda.
[8]

In Minute Resolution No. 96-1497 dated May 14, 1996, the COMELEC en
banc resolved to file criminal as well as administrative charges against respondent for
violation of Section 27 (b) of Republic Act No. 6646, thus:
In the matter of prosecuting Comelec field officials and deputies involved in certain
irregularities as discovered by the Commission of Elections sitting as the National
Board of Canvassers for the 1995 Senatorial Canvass. Considering the study dated 9
May 1996 of the Law Department in the case, Aquilino Pimentel, Jr. vs. Provincial
Board of Canvassers, et al. Ilocos Norte (E.O. Case No. 95-294), for alleged violation
of Sec. 27(b) of Republic Act No. 6646 (any member of the board of canvassers who
tampers, increases or decreases the vote received by a candidate in any election), that
respondents, Dominador Micu, Chairman, Dionisio Caoili, Vice Chairman and Ofelia
Pastor, Member, PBC, Ilocos Norte, did not dispute the fact that there was really an
irregular increase of votes for some senatorial candidates in the Certificate of Canvass
namely: Enrile, from 65,343 to 95,343; Drilon, from 48,726 to 78,726 and Mitra,
from 42,959 to 62,959; considering, further, that complainant Mr. Pimentel, Jr. filed
an amended complaint on December 13, 1995 charging Mrs. Marvelyn Ramiro,
Election Assistant of San Nicolas, Ilocos Norte who dictated and prepared the entries,
respectively, from the statement of votes to the certificate of canvass,
RESOLVED:
1) To file criminal charges against respondents Atty. Dominador, Micu, Assistant
Regional Election Director, Region I, Atty. Dionisio Caoili, Provincial
Prosecutor and Dr. Ofelia Pastor, Division Superintendent of School,
Chairman, Vice Chairman and member-secretary respectively of the PBC of
Ilocos Norte, for alleged violation of Section 27(b) of Rep. Act. 6646 during
the May 8, 1995 elections;
2) To file criminal charges against the other respondents Mrs. Marvelyn Ramiro,
Election Assistant of San Nicolas, Ilocos Norte and Flor Mercado, Elementary
School Principal of DECS, for the same offense (violation of Section 27(b) of
Rep. Act 6646 during the May 8, 1995 elections); and
3) To initiate administrative proceedings against the foregoing respondents and
thereafter, to suspend them for a period of ninety (90) days without pay; if no
administrative case is filed against the three other respondents, namely Atty.
Dionisio Caoili, Dr. Ofelia Pastor and Ms. Flor Mercado, to recommend to the
agencies concerned to file administrative cases against them, with suspension
and without pay for the period of suspension.
[9]

Respondents filed a motion for reconsideration,
[10]
to which petitioner filed his
comment.
[11]

On August 13, 1996, the COMELEC en banc issued the assailed Minute Resolution
No. 96-2333 where it was resolved to dismiss the complaint for lack of sufficient
evidence to establish probable cause and, in the administrative case, to reprimand
respondents with stern warning that a repetition of the same act in the future shall be
dealt with accordingly.
[12]

It is from the COMELECs dismissal of his complaint that petitioner files the instant
petition for certiorari asserting that :
[t]he COMELEC committed grave abuse of discretion when they flip-flopped from
their earlier issued Minute Resolution No. 96-1497 in E.O. Case No. 95-294 where
they found the existence of probable cause and ordered the filing of a criminal
information against the private respondents and then in the subject Minute Resolution
No. 96-2333, without giving any substantial justification for the same, ordered the
dismissal of the charges against all of the private respondents for insufficiency of
evidence, despite the absence of any newly discovered evidence or of any new legal
arguments raised in private respondents motion for reconsideration - this clearly
shows an arbitrary and capricious exercise of discretion by the COMELEC amounting
to lack of jurisdiction.
[13]

The Solicitor General filed a Manifestation and Motion (In Lieu of Comment) where
he prayed for the nullification and setting aside of COMELECs Minute Resolution No.
96-2333 dated August 13, 1996.
We first deal with the assertion of the COMELEC
[14]
that the Solicitor Generals
Manifestation be stricken from the record as it is a plain and actual comment
indubitably supporting the petition of petitioner Pimentel who is a private person, thus
beyond the powers and functions of the Office of the Solicitor General.
[15]

True, the Solicitor General is mandated to represent the Government, its agencies
and instrumentalities and its officials and agents in any litigation, proceeding,
investigation or matter requiring the services of a lawyer.
[16]
However, the Solicitor
General may, as it has in instances
[17]
take a position adverse and contrary to that of the
Government on the reasoning that it is incumbent upon him to present to the court what
he considers would legally uphold the best interest of the government although it may
run counter to a clients position.
[18]

In the instant case, it is the position of the Solicitor General that the COMELECs
assailed resolution has no basis and does not conform to the evidence which establish
probable cause to indict private respondents for an election offense.
[19]
We take such
position into serious consideration and do not, as the COMELEC does, dismiss the
same as entirely misplaced.
[20]
As we commented on the role of the Solicitor General in
cases pending before this Court:
This Court does not expect the Solicitor General to waver in the performance of his
duty. As a matter of fact, the Court appreciates the participation of the Solicitor
General in many proceedings and his continued fealty to his assigned task. He should
not therefore desist from appearing before this Court even in those cases he finds his
opinion inconsistent with the Government or any of its agents he is expected to
represent. The Court must be advised of his position just as well.
[21]

The COMELEC also argues that petitioners remedy is inappropriate. This
argument is easily disposed of. When filed, the petition was denominated as a petition
for review on certiorari. Petitioner, however, filed a Motion to Treat Petition as a Special
Civil Action Under Rule 65 of the Rules of Court where he pointed out that [t]he petition
was filed within the 30-day period to file a petition for certiorari from the Resolution of
the COMELEC
[22]
and that [t]he arguments raised therein make out the same grounds
for the issuance of the extraordinary writ of certiorari.
[23]
We noted the Motion in En
Banc Resolution dated November 12, 1996.
[24]

We now come to the heart of the matter at hand. As summarized by the Solicitor
General, the issue here in WHETHER OR NOT PUBLIC RESPONDENT COMMITTED
GRAVE ABUSE OF DISCRETION IN REVERSING ITS EARLIER RESOLUTION BY
DISMISSING THE COMPLAINT AGAINST PRIVATE RESPONDENTS FOR
VIOLATION OF SECTION 27(B) OF RA NO. 6646, ON THE GROUND OF LACK OF
SUFFICIENT EVIDENCE TO ESTABLISH PROBABLE CAUSE.
[25]

We are here asked to determine whether the COMELEC, in including that probable
cause did not exist to warrant prosecution of the respondents, committed grave abuse
of discretion. We emphasize that we do so take cognizance of the case exceptionally
under Rule 65 of the Revised Rules of Court pursuant to Section I, Article VIII of the
1987 Constitution, as we recognize that the COMELEC must be accorded full discretion
whether or not to initiate a criminal case, pursuant to its power to investigate and
prosecute election offenses.
[26]
We note that when investigating and prosecuting election
offenses, the COMELEC is acting analogous to the Ombudsman with its investigatory
and prosecutory powers. We have no occasion looked into the Ombudsmans action
upon the allegation of grave abuse of discretion.
[27]

The COMELEC in its Comment maintained that no probable cause exists there
being no evidence showing that petitioner prior to his filing of the complaint against the
board members x x x called the attention of the latter to what he claimed were incorrect
or tampered votes and that respondents were given the chance to verify and be heard
on the claim but refused to rectify when asked, arguing that [t]he clear meaning of
[Section 27(b), R.A. No. 6646] is that the erring board member must first be given the
chance to credit the correct votes or deduct the tampered votes and the refusal to do so
gives rise to his criminal responsibility.
[28]

We find the COMELECs view askant. We examine the provision under which
respondents are charged. Section 27(b) of R.A. No. 6646, reads:
x x x the following shall be guilty of an election offense:
x x x
(b) Any member of the board of election inspectors or board of canvassers who
tampers, increases or decreases the votes received by a candidate in any election or
any member of the board who refuses, after proper verification and hearing, to credit
the correct votes or deduct such tampered votes.
A rule in statutory construction is that the word or is disjunctive term signifying
dissociation and independence of one thing from other things enumerated unless the
context requires a different interpretation.
[29]
In criminal and penal statues, like Section
27(b) of R.A. 6646, the word and cannot be read or, and conversely, as the rule of
strict construction apply,
[30]
except when the spirit and reason of the law require it.
[31]

From a reading of Section 27(b) of R.A. 6646 in its entire context, we cannot but
conclude that giving a non-disjunctive meaning to the word or is not warranted.
[32]

Thus, under the provision, two acts, not one, are penalized: first, the tampering,
increasing or decreasing of votes received by a candidate in any election;
and second, the refusal, after proper verification and hearing, to credit the correct votes
or deduct such tampered votes. The second part of the provision cannot be conjoined
with the first part and regarded as a mere element of one crime, as is the interpretation
of the COMELEC. Such cannot be the intent of the framers of the law, and it is with
grave abuse of discretion that the COMELEC gave Section 27(b) of R.A. No. 6646 of
interpretation it did.
Petitioner in paragraph 5 of his complaint-affidavit
[33]
categorically charged
respondents with having tamper[ed], increase[ed] the votes received by a candidate in
any election. The fact that the votes of candidates Enrile, Drilon and Mitra as appearing
in the Certificate of Canvass were considerably more than that appearing in the
Statement of Votes is not denied by respondents. Instead, they put forward the
defenses of honest mistake, simple error, good faith, and the mere performance of
ministerial duties.
In his counter-affidavit,
[34]
respondent Dominador Mico alleged that:
x x x there was no malice or deliberate intent to commit a crime, but that the
discrepancy or error was the result of an honest mistake or oversight due to failure on
our part to cross check the entries there was no malice or deliberate intent to commit a
crime, but that from the Statement of Votes to the Certificate of Canvass thereby
relying completely on our confidence and trust reposed on the support staff who did
the typing of the entries from the Statement of Votes to the Certificate of Canvass
who proved only human after all.
In a subsequent affidavit
[35]
denominated as Discovery of the Discrepancy,
respondent Mico expounded on when and how he discovered the discrepancy in the
Statement of Votes and the Certificate of Canvass thus:
As per instruction, the three (3) dominant political parties were to provide each of the
other parties a xerox copy of the COC. It was only after such xerox copies were made
but before the same were put in envelopes that I noted the unusually high number of
votes credited to senatorial candidates Juan Ponce Enrile and Ramon Mitra at the
same time discovering that said votes did not tally with the corresponding entries in
the statement of votes. Upon nothing the discrepancy, I remarked aloud that our
attention will be called thereto and that we should expect trouble in connection
therewith. I cannot however, remember whether when I made such statement the two
other members of the Board were still inside the hall and were within hearing
distance.
Since some of the other copies of the COC were already distributed and the rest
already sealed in the envelopes, I considered it improper or irregular to reconvene the
Board to make the correction, neither did I reflect the discrepancy in the minutes
because the Board has already become functus de oficio, and further because the the
certificate of canvass had to be submitted immediately, the 72 hours prescribed within
which to finish the canvass having long lapsed.
Respondent Dionisio A. Caoili alleged in his Counter-affidavit:
[36]

That the shown disparities in the results of the senatorial elections in Ilocos Norte, as
reflected in the SOV and COC, were not deliberate but the outcome and congruence
of mechanical as well as honest human error;
In her Counter-Affidavit,
[37]
respondent Ofelia T. Pastor alleged that:
x x x the discrepancies were purely human error and honest mistake yet done with
due respect in good faith x x x.
Respondent Marvelyn R. Ramiro alleged in her Counter-Affidavit:
[38]

Respondent Flor Mercado alleged in her Counter-Affidavit
[39]
that:
My participation in the preparation of the COC of Ilocos Norte was purely ministerial
since I was merely directed by Atty. Dominador Mico, Chairman, PBC, Ilocos Norte,
to record/type the entries in the COC;
We agree with the Solicitor General that the merit of respondents defenses are best
ventilated in the trial proper than at the preliminary investigation.
[40]
For a preliminary
investigation is essentially inquisitorial and is only the means to discover who may be
charged with a crime, its function being merely to determine probable cause.
[41]
We
emphasize that:
[a] finding of probable cause needs only to rest on evidence showing that more likely
than not a crime has been committed and was by the suspects. Probable cause need
not be based on clear and convincing evidence of guilt, neither on evidence
establishing absolute certainty of guilt. As well put in Brinegar v. United States,
while probable cause demands more than bare suspicion, it requires less than
evidence which would justify x x x conviction. A finding of probable cause merely
binds over the suspect to stand trial. It is not a pronouncement of guilt.
To take the view, as that adopted by the COMELEC when it executed an about-
face, that a member of the board of election inspectors or board of canvassers cannot
be charged with the offense under Section 27(b) of R.A. 6646 unless his attention is first
called to the tampering, increasing or decreasing of the votes of a candidate and unless
he is first given the opportunity to rectify, correct or undo his illegal act, is to tolerate, if
not abet, a massive tampering of votes by allowing the wrongdoer a built-in and sure-
fire defense for his exoneration. In the face of accusations of dagdag bawas
(tampering) of votes flying thick and fast in our electoral landscape, the COMELECs
stand is starkly illogical and retrogressive and flies in the face of its mandated duty to
protect the sanctity of the ballot.
Strangely, what is extant from the records is the admission of respondent Mico that
early on he already noted the discrepancy in the votes for certain senators which did not
tally with the corresponding entries and the statement of votes to which he promptly
called the attention of the other members of the Provincial Board of Canvassers. Yet,
absolutely nothing had been done by the members of the board to correct the glaring
disparities in the results of the Senatorial votes in Ilocos Norte. This means that, even if
we assume for the sake of argument, that Section 27(b) of R.A. 6646 penalizes only
one act, still, the COMELECs dismissal of the case against the respondents is totally
erroneous amounting to grave abuse of discretion.
The other issues raised by the COMELEC - whether the offenses punished under
Section 27(b) of R.A. No. 6646, a special law, are mala prohibita or mala in se
[42]
and
whether damage is an element of the offenses.
[43]
are likewise matters which are
properly raised in the trial court and threshed out in a judicial proceeding, being
necessarily interconnected with the defense raised by respondents.
In sum, we find that the COMELEC acted with grave abuse of discretion in
dismissing the complaint on the ground lack of sufficient evidence to establish probable
cause, curiously after it had previously found probable cause on the basis of the same
evidence. Moreover, significantly, it is on record that upon discovering the
discrepancies while canvassing the returns in the senatorial race and in obvious and
manifest recognition of the gravity of the occurrence, the COMELEC motu
propio initiated an investigation. Under the COMELEC Rules of Procedure, a complaint
initiated motu proprio by the Commission is presumed to be based on sufficient
probable cause for purposes of issuing subpoenas to the respondents.
[44]

The grant to the COMELEC, as embodied in the 1987 Constitution, of the power to
investigate and prosecute election offenses as an adjunct to the enforcement and
administration of all election laws, is intended to enable the Commission to effectively
insure to the people the free, orderly and honest conduct of elections, failure of which
would result in the frustration of the true will of the people and make a mere idle
ceremony of the sacred right and duty of every qualified citizen to vote.
[45]
The people
expect from the COMELEC nothing less than perfect and undiminished fealty to this
objective.
The finding of the existence or non-existence of probable cause in the prosecution
of criminal cases brought before it, rests in the discretion of the COMELEC in the
exercise of its Constitutional authority to investigate and, where appropriate, prosecute
cases of violation of election laws, including acts or omissions constituting election
frauds, offenses and malpractices.
[46]
The Court would normally not interfere with such
finding of the COMELEC. However, in extreme situations, as in the case at bar, this
Court will not hesitate to correct acts committed by said body in grave abuse of
discretion.
WHEREFORE, in view of the foregoing, the assailed Minute Resolution No. 96-
2333 of the Commission on Elections dated August 3, 1996 is SET ASIDE and its
Minute Resolution No. 96-1497 dated May 14, 1996 issued in E.O. No. 95-294
is REINSTATED.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Mendoza, Panganiban, Martinez, Quisumbing, and Purisima, JJ., concur.



[1]
Rollo, p. 26.
[2]
Id., at 27.
[3]
Petition, p. 4; Rollo, p. 11.
[4]
Sometimes appearing in the record as Micu.
[5]
Complaint-Affidavit dated June 27, 1995, Rollo, pp. 29 -31 and Amended Complaint-Affidavit dated
December 13, 1995, Rollo, pp. 65 66.
[6]
Rollo, p. 65; Underscoring in the original.
[7]
Annexes E, F, G, J and K of the petition.
[8]
Annexes L, M, and N of the petition.
[9]
Rollo, p. 98.
[10]
Id., at 100, 108.
[11]
Id., at 110.
[12]
Id., at 25.
[13]
Id., at 114.
[14]
Through Atty. Jose P. Balbuena.
[15]
Rollo, p. 152.
[16]
Section 1 of Presidential Decree No. 478. See also Section 35, Chapter 12 of the Administrative Code
of 1987.
[17]
See note 18, infra.
[18]
Orbos v. Civil Service Commission, 189 SCRA 459 (1990); Martinez v. Court of Appeals, 237 SCRA
575 (1994).
[19]
Rollo, p. 147.
[20]
Id., at 172.
[21]
Orbos v. Civil Service Commission, supra.
[22]
Rollo, p. 113.
[23]
Ibid.
[24]
Rollo, p. 117.
[25]
Rollo, p. 141.
[26]
See People v. Delgado, 189 SCRA 715 (199) on the trial court acquiring jurisdiction over a criminal
case charging an election offense filed by the COMELEC after conducting a preliminary investigation and
finding probable cause, where we emphasized that after the information is filed in the trial court, the
subsequent disposition of the case must be subject to the approval of the court.
[27]
Leonila Garcia-Rueda v. Pascasio, G.R. No. 118141, September 5, 1997, citing Yabut v. Office of the
Ombudsman, 233 SCRA 310 (1994) and Young v. Office of the Ombudsman, 228 SCRA 718 (1993).
[28]
Rollo, p. 171.
[29]
People v. Martin, 39 SCRA 340 (1971)
[30]
Sibal, Statutory Construction, 1994 ed., pp. 100-101, citing State v. Tiffany, 87 Fla. 932.
[31]
Ibid., citing Fulghum v. Bleakley, 177 S.C. 286, 181 S.E. 30, also Crawford, Statutory Construction, p.
323.
[32]
See Ibid., citing State v. Brandt, 41 Iowa 593. Substitution of one for the other is permissible only
when the context or other provisions of the statue require it, or when that is necessary to avoid an absurd
or impossible consequence, and to carry out the evident intention of the legislature.
[33]
Rollo, p. 65.
[34]
Dated December 4, 1995; Rollo, p. 33.
[35]
Dated July 20, 1995; Rollo, p. 39.
[36]
Dated January 29, 1996; Rollo, p. 34.
[37]
Dated January 29, 1996; Rollo, p. 36.
[38]
Dated January 29, 1996; Rollo, p. 67.
[39]
Dated January 29, 1996; Rollo, p. 68.
[40]
Citing Olivarez v. Sandiganbayan, 248 SCRA 700 (1995) and Webb v. De Leon, 247 SCRA 652
(1995). Also Garcia-Rueda v. Pascasio, supra.
[41]
Garcia-Rueda v. Pascasio, supra, citing Panganiban v. Casar, 159 SCRA 599 (1988).
[42]
Rollo, p. 157.
[43]
Id., at 165.
[44]
Section 7, Rule 34.
[45]
De Jesus v. People of the Philippines, 120 SCRA 760 (1983).
[46]
Sec. 2(6), Art. IX, 1987 Constitution.
December 17, 1993
G.R. No. L-106091
JOSE PEPING NAVARRO, petitioner,
vs.
COMMISSION ON ELECTIONS AND JOSE PEMPE MIRANDA, respondents.
Ramirez Law Office for petitioner.
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 Santiago, Isabela.
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.
Petitioner lost to private respondent.
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;
2) The respondent Board erred in continuing with the canvassing of the election returns despite
appellants 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;
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;
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;
5) Respondent Agpalo erred in issuing an order setting aside appellants 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. 42).
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, 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).
In its Resolution dated June 29, 1992, the COMELEC en banc dismissed the petition without prejudice to
the filling of a regular electoral protest (Rollo, pp. 37-51).
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;
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;
3) When it upheld the illegal composition of the board;
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 petitioners
participation during the proceedings; and
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.
The COMELEC stated that:
In the light of the these conflicting claims, resort to the minutes of the respondent board is necessary.
Significantly, nothing in the said minutes will show any such objection by petitioner or his counsels of
said respondent Boards 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 petitioners objection to the
composition of 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.
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:
1. Misreading of ballots;
2. Interchanging of results;
3. Tampering/falsification of election returns;
4. Discrepancies in the Returns;
5. Election Returns prepared under duress; threats, coercion or intimidations;
6. Substitute/fraudulent returns will materially affect the standing of the aggrieved candidate (Annex
I, J and K).
Petitioners 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.
Going over the grounds relied upon in the instant appeal, the Commission is not persuaded to consider
the same as appropriate in a pre-proclamation case. Likewise, the evidence submitted does not
warrant 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.
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.
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] ).
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] ).
Petitioner, more particularly, failed to follow the procedure laid down in Section 244 of the Omnibus
Election Code, which provides:
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.
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.
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.
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.
WHEREFORE, the Court Resolved to DISMISS the petition.
SO ORDERED.

EN BANC
[G.R. Nos. 139573-75. March 7, 2000]
JUNE GENEVIEVE R. SEBASTIAN, and DARIO ROMANO, petitioners, vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF
CANVASSERS OF STO. TOMAS, DAVAO DEL NORTE (Jandelie B.
Espaola, Liza D. Baco, and Valentin Gador), SALVADOR ROYO, and
ERIC ESTELA, respondents.
D E C I S I O N
QUISUMBING, J .:
Before us is a petition for certiorari seeking the annulment of the Resolution issued by
respondent Commission on Elections, in SPC Nos. 98-129, 98-142, and 98-169, on
August 24, 1999, allowing the inclusion in the canvass of votes in Sto. Tomas, Davao
del Norte, of 25 election returns which petitioners claimed to have been prepared
through threats and undue influence. Said resolution reversed an earlier resolution of
the COMELEC Second Division excluding the questioned election returns from the
canvass of votes. Petitioners likewise seek the issuance of a temporary restraining
order to enjoin the Municipal Board of Canvassers of Sto. Tomas from continuing with
the canvassing of votes and including therein the contested election returns.
The antecedent facts are as follows:
Petitioner June Genevieve Sebastian was the mayoralty candidate of the Reporma
Party in Sto. Tomas, Davao del Norte, during the May 11, 1998 elections. Petitioner
Dario Romano was her running mate. Private respondent Salvador Royo was the
mayoralty candidate of the Lakas-NUCD-UMDP, while private respondent Eric Estela
was his candidate for vice mayor.
On election day, as the Municipal Board of Canvassers was preparing to canvass the
election returns, petitioners sought the exclusion from the canvass of several election
returns from certain precincts in barangays Kimamon, New Katipunan, Lunga-og,
Balagunan, Pantaron, and Tibal-og.
[1]
Petitioners claimed that the election returns from
these areas were prepared under "extreme duress, threat, intimidation and political
pressure and influence."
[2]
Petitioners also manifested that four election returns were
missing.
The Municipal Board of Canvassers denied the petition, prompting petitioners to file
three separate appeals with the COMELEC, docketed as SPC No. 98-129, SPC No. 98-
142, and SPC No. 98-169.
The COMELEC First Division dismissed the appeal docketed as SPC No. 98-129 on
July 15, 1998. No motion for reconsideration was filed by petitioners as appellants
therein, thus, the dismissal became final and executory on July 30, 1998.
[3]

Meanwhile, the COMELEC Second Division, ruling on the remaining consolidated
appeals in a decision promulgated on August 14, 1998, ruled in favor of petitioners and
ordered the exclusion of 25 election returns from the canvass of votes in Sto. Tomas.
On August 18, 1998, private respondent Royo filed a motion for reconsideration of said
resolution. The COMELEC en banc, as earlier stated, reversed the ruling of the
COMELEC Second Division.
Hence, this petition, in which petitioners assign the following errors:
THE HONORABLE COMMISSION COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT DISREGARDED THE DOCTRINE ENUNCIATED BY THE
HONORABLE SUPREME COURT IN THE LEADING CASE OF
ANTONIO vs. COMELEC, G.R. NO. L-31604, APRIL 17, 1970 IN THE
DISPOSITION OF THE INSTANT CASE;
THE HONORABLE COMMISSION ON ELECTIONS COMMITTED A
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS
OF JURISDICTION WHEN IT UNILATERALLY DISREGARDED THE
OVERWHELMING EVIDENCE OF COERCION, UNDUE INFLUENCE,
EXTREME PRESSURE, THREAT, INTIMIDATION AS WELL AS ALL
THE ENVIRONMENTAL CIRCUMSTANCES THAT ATTENDED THE
PREPARATION, TRANSMISSION, RECEIPT, CUSTODY AND
APPRECIATION OF THE TWENTY-FIVE CONTESTED RETURNS.
[4]

Petitioners concede that, when the election returns appear to be regular, authentic, and
duly accomplished on their face, the COMELEC need not inquire into allegations of
irregularities in the casting or counting of votes.
[5]
However, petitioners question the
COMELECs alleged failure to consider what they claim to be evidence of undue
influence, extreme pressure, threat, and coercion that attended the preparation,
transmission, custody and appreciation by the Board of Election Inspectors of the
contested election returns. These, according to petitioners, affected the regularity, due
execution, and authenticity of the election returns.
[6]

Petitioners also fault the COMELEC for not taking into account the atmosphere
prevailing during the elections at Sto. Tomas, which they claim to be similar to the
circumstances obtaining in the case of Antonio v. COMELEC, (32 SCRA 319 [1970]). In
that case, returns prepared by election inspectors under threats from armed men were
excluded from the canvass of votes in Batanes.
For its part, the COMELEC pointed out that it could not justifiably exclude from the
canvass of votes, in a pre-proclamation controversy, election returns that on their face
appear regular. A pre-proclamation controversy is limited to the examination of
incomplete, falsified, or materially defective returns, which appear as such on their face.
Where the issues raised would require the COMELEC to look beyond the face of the
return, the proper remedy is a regular election protest.
[7]

It is worth noting that petitioners do not claim that the returns themselves are not
regular, genuine or authentic. Petitioners admit that the alleged fraud, deceit, and
intimidation came from external sources, and, therefore, not manifest on the face of the
returns. The alleged fraudulent scheme was designed, according to petitioners,
precisely to avoid detection on the face of the returns.
[8]

What petitioners assert is that the preparation of the returns had been marred by undue
influence and intimidation, thus affecting their regularity, due execution and authenticity.
Petitioners argue that this justifies the examination of circumstances beyond the face of
the returns.
We find this argument untenable.
This petition stemmed from a pre-proclamation controversy. In a long line of cases, we
have consistently held that a pre-proclamation controversy is limited to an examination
of the election returns on their face.
[9]
The COMELEC as a general rule need not go
beyond the face of the returns and investigate alleged election irregularities.
[10]
We see
no reason to depart from this rule in this petition. In our view, there is no exceptional
circumstance present in this controversy similar to that proved in the Antonio case,
aforecited, where the COMELEC as well as the Court found "precipitate canvassing,
terrorism, lack of sufficient notice to the Board, and disregard of manifest irregularities in
the face of the questioned returns"
[11]
to justify the summary annulment of the canvass
and the annulment of petitioner Antonios proclamation. Rather, we are guided here by
the holding of the Court in the case of Matalam, in Maguindanao, where it is said:
"...Because what [petitioner] is asking for necessarily postulates a full
reception of evidence aliunde and the meticulous examination of
voluminous election documents, it is clearly anathema to a pre-
proclamation controversy which, by its very nature, is to be heard
summarily and decided on as promptly as possible."
[12]

To require the COMELEC to examine the circumstances surrounding the preparation of
election returns would run counter to the rule that a pre-proclamation controversy
should be summarily decided.
[13]

In Sison v. COMELEC,
[14]
we ruled that:
"The reason underlying the delimination both of substantive ground and
procedure is the policy of the election law that pre-proclamation
controversies should be summarily decided, consistent with the laws
desire that the canvass and proclamation be delayed as little as possible.
That is why such questions which require more deliberate and necessarily
longer consideration, are left for examination in the corresponding election
protest."
Where the resolution of the issues raised would require the COMELEC to "pierce the
veil" of election returns that appear prima facie regular, the remedy is a regular election
protest,
[15]

"...wherein the parties may litigate all the legal and factual issues raised by
them in as much detail as they may deem necessary or appropriate."
[16]

Here, we note favorably the position taken by the Office of the Solicitor General.
Petitioners have not demonstrated precisely how the preparation and appreciation of
election returns were adversely affected by, as alleged by petitioners, "harassments of
petitioners supporters," "midnight convoys of armed men riding in motorcycles," and
"raids by the military in different houses" in Sto. Tomas. We are constrained to agree
with the OSGs submission that on the basis of our holding in Salih v. COMELEC, 279
SCRA 19, respondent COMELEC herein "could not justifiably exclude said returns on
the occasion of a pre-proclamation controversy whose office is limited to incomplete,
falsified or materially defective returns which appear as such on their face."
[17]

Nor could we fault public respondents herein for grave abuse of discretion in refusing
petitioners call to exclude election returns they claim as the product of coercion and
falsification, even if they appear clean on their face. For respondent COMELEC had
conducted hearings on the matter, where petitioners and other parties concerned had
submitted affidavits and presented witnesses. The COMELEC found, however, that the
evidence presented by petitioners failed to prove convincingly that the assailed returns
were tainted by duress. Contrary to petitioners claim, NAMFREL volunteers and the
Poll Watchers in the area attested that the election activities therein were generally
peaceful. Even the Board of Election Inspectors themselves swore nobody threatened
or coerced them in the performance of their duties, and that the elections in their area
were peaceful, honest and orderly. Given these factual circumstances, which could not
be deemed evidently self-serving on its part, respondent COMELEC could not have
prudently and fairly excluded the assailed returns. The better part of discretion in so
delicate a matter is to await the filing of the appropriate action, like a regular election
protest, if the petitioners were so minded to pursue the proper remedy, rather than delay
the determination of the popular will.
WHEREFORE, the petition is DISMISSED, and the resolution of the COMELEC en
banc in SPC No. 98-129, SPC No. 98-142, and SPC No. 98-169 is hereby AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ. concur.
Pardo, J., no part.



[1]
Rollo, pp. 32-33.
[2]
Id. at 33.
[3]
Id. at 74.
[4]
Id. at 36-37.
[5]
Id. at 38.
[6]
Ibid.
[7]
Id. at 710-711.
[8]
Id. at 726.
[9]
Dipatuan v. COMELEC, 185 SCRA 86, 93 (1990).
[10]
Matalam v. COMELEC, 271 SCRA 733, 745 (1997); Loong v. COMELEC, 257 SCRA 1, 23 (1996);
Dipatuan v. COMELEC, 185 SCRA 86, 92 (1990).
[11]
Antonio v. COMELEC, 32 SCRA 319, 332 (1970).
[12]
Matalam v. COMELEC, supra, at 746.
[13]
Omnibus Election Code, Sec. 243; Loong v. COMELEC, supra, at 22; Dipatuan v. COMELEC, supra, at 92;
Sanchez v. COMELEC, 153 SCRA 67, 75 (1987).
[14]
G.R. No. 134096, March 3, 1999, p. 6.
[15]
Matalam v. COMELEC, supra, at 747; Loong v. COMELEC, supra, at 22; Dipatuan v. COMELEC, supra, at 92.
[16]
Matalam v. COMELEC, supra; Dimaporo v. COMELEC, 186 SCRA 769, 785 (1990).
[17]
Salih v. COMELEC, 279 SCRA 19, 32 (1997); Rollo, p. 710.
YAANAY
EN BANC
[G.R. No.133842. January 26, 2000]
FEDERICO S. SANDOVAL, petitioner, vs. COMMISSION ON ELECTIONS
and CANUTO SENEN A. ORETA, respondents.
D E C I S I O N
PUNO, J .:
The petition at bar assails the order of the Commission on Elections , (COMELEC) en
banc dated June 2, 1998 nullifying and setting aside the proclamation of petitioner Federico S.
Sandoval as congressman-elect for the Malabon-Navotas legislative district.
The facts are as follows:
Petitioner Federico S. Sandoval and private respondent Canuto Senen Greta, together with Pedro
Domingo, Mariano Santiago, Symaco Benito and Warren Serna, vied for the congressional seat
for the Malabon-Navotas legislative district during the election held on May 11, 1998.
On election day, after the votes have been cast and counted in the various precincts in the two
municipalities, their respective board of canvassers convened to canvass the election returns
forwarded by the board of election inspectors.
In Malabon, a reception group and several canvassing committees were formed to expedite the
canvass. The reception group received, examined and recorded the sealed envelopes containing
the election returns, as well as the ballot boxes coming from the precincts. The reception group
then distributed the election returns among the canvassing committees. The committees
simultaneously canvassed the election returns assigned to them in the presence of the lawyers
and watchers of the candidates.
On May 16, 1998, counsels for private respondent made a written request upon Malabon
Election Officer Armando Mallorca to furnish them with a complete list of the statement of votes
so that they could verify whether all statements of votes have been tabulated.
[1]
They likewise
requested for a complete list of precincts in the municipality together with the number of
canvassed votes for petitioner and private respondent as of May 16, 1998. They also sought
permission to conduct an audit of the tabulation reports made by the municipal board of
canvassers.
[2]
These requests, however, were denied by the municipal ,board of canvassers on the
following grounds: (1) that any counsel for a candidate has neither personality nor right to
conduct an audit of the tabulation report as the proceedings of the board are presumed to be
regular, and (2) that the granting of the requests would delay the proceedings of the board to the
prejudice of the will of the people of Malabon.
[3]
4F==Z
On May 17, 1998, the Malabon municipal board of canvassers concluded its proceedings. The
board issued a certificate of canvass of votes stating that it canvassed 804 out of 805 precincts in
the municipality. The certificate of canvass showed that private respondent obtained the highest
number of votes in Malabon with 57,760 votes, with petitioner coming in second with 42,892
votes.
[4]

On the same day, after obtaining copies of the statements of votes, Ma. Rosario O. Lapuz,
authorized representative of private respondent wrote then COMELEC Chairman Bernardo
Pardo
[5]
and informed him that several election returns were not included in the canvass
conducted by the Malabon municipal board of canvassers. She moved that the certificate of
canvass issued by said board be declared "not final."
[6]

On May 19, 1998, Ms. Lapuz again wrote Chairman Pardo. The letter reiterated the allegations
in her letter dated May 17, 1998 and requested that the Malabon municipal board of canvassers
be ordered to canvass the election returns which it allegedly failed to include in its canvass.
[7]

On May 23, 1998, private respondent filed with the COMELEC an Urgent Petition entitled "In
re: Petition to Correct Manifest Error in Tabulation of Election Returns by the Municipal Board
of Canvassers of Malabon, NCR. Canuto Tito Oreta vs. Municipal Board of Canvassers of
Malabon." The petition was docketed as SPC No.98-143. It alleged that while the certificate of
canvass showed that 804 election returns were canvassed and tabulated, only 790 election returns
were actually canvassed. Private respondent contended that there was a manifest error in the non-
recording or copying of the results in 14 election returns from 14 precincts into the statement of
votes. It prayed: (1) that the municipal, board of canvassers of Malabon be reconvened to correct
said manifest error by entering the results of the elections in the 14 election returns into the
statement of , votes and that the certificate of canvass be corrected to reflect the complete results
in 804 precincts; and (2) that the canvass of the results for the congressional election by the
district board of canvassers for Malabon and Navotas be suspended until the alleged manifest
error is corrected.
[8]
4U'
Meanwhile, the proceedings of the municipal board of canvassers of Navotas were disrupted by
the riotous exchange of accusations by the supporters of the opposing mayoralty candidates. The
COMELEC had to move the venue to the Philippine International Convention Center in Manila
to finish the canvass. On May 27, 1998, Chairman Pardo issued a memorandum to Atty. Ma.
Anne V. G. Lacuesta, Chairman, District Board of Canvassers for Malabon-Navotas, authorizing
her to immediately reconvene the district board of canvassers, complete the canvassing of the
municipal certificate of canvass and supporting statement of votes per municipality , and
proclaim the winning candidate for the congressional seat of the Malabon-Navotas legislative
district.
[9]

On May 28, 1998, private respondent filed with the COMELEC an Urgent Manifestation/Motion
in connection with SPC No.98-143. It prayed that the canvass of the, results of the congressional
election by the district board of canvassers be suspended until the alleged manifest error in SPC
No.98-143 is corrected.
[10]

At 4:15 in the afternoon on May 28, 1998, the district board of canvassers convened at the
Philippine International Convention Center. It took up private respondent's petition to correct the
manifest error arising from the non-inclusion of 19 election returns in the canvass. After
examining the statement of votes by precinct and the certificate of canvass signed and
thumbmarked by three watchers from different parties, the district board of canvassers found that
a total of 804 election returns were canvassed by the Malabon municipal board of canvassers.
[11]

The district board of canvassers then proceeded to canvass the certificates of canvass from the
two municipalities. Counsel for private respondent requested that the canvassing be suspended
until the Commission has resolved their petition for correction of manifest error in the certificate
of canvass of Malabon. The district board of canvassers, however, denied the request for the
following reasons:
"1. absence of restraining order from the Commission;
"2. order of the Chairman dated May 27, 1998 directing the district board to
proceed with the canvass and proclamation of winning candidates for the district
of Malabon-Navotas;4-=L
"3. there is no irregularity in the submitted certificate of canvass from both
municipalities and there were no objections raised for both certificates of canvass
of the counsels present;
"4. no report coming from the municipal board of canvassers from Malabon that
there were uncanvassed election return except for one;
"5. the municipal board of canvassers of Malabon submitted to the district board
of canvassers certificate of canvass which indicated that the number of canvassed
returns for District I is 397 and 407 for District II for a total of 804 out of 805
election returns;
"6. the board has only the ministerial duty to tally the votes as reflected on the
certificate of canvass supplemented by the statement of votes and has no authority
to verify allegations of irregularities in the preparation thereof; and
"7. there is no pre-proclamation contest for the position of congressman."
[12]

Private respondent's counsel sought reconsideration of the decision of the district board' of
canvassers but it was likewise denied by the board.
After canvassing the municipal certificates of canvass, the district board of canvassers
proclaimed petitioner the duly elected congressman of the legislative district of Malabon-
Navotas. The board declared that petitioner obtained a total vote of 82,339 over private
respondent's 80,319 votes.
[13]
Petitioner took his oath of office on the same day.
[14]
4=L'4-
The following day, on May 29, 1998, private respondent filed with the COMELEC in connection
with SPC No.98-143 an "Urgent Appeal from the Decision of the Legislative District Board of
Canvassers for Malabon and Navotas with Prayer for the Nullification of the Proclamation of
Federico S. Sandoval as Congressman." It alleged that there was a verbal order from the
COMELEC Chairman to suspend the canvass and proclamation of the winning candidate for
congressman of the Malabon-Navotas legislative district; that the district board of canvassers
proceeded with the canvass and proclamation despite the verbal order; and that the non-inclusion
of the 19 election returns in the canvass would result in an incomplete canvass of the election
returns. It prayed that the decision of the district board of canvassers be reversed and that the
municipal board of canvassers of Malabon be reconvened to complete its canvass. It also prayed
that the proclamation of petitioner as congressman be annulled.
[15]

On May 30, 1998, private respondent filed with the COMELEC an Urgent Petition docketed as
SPC No.98-206. The petition sought the annulment of , petitioner's proclamation as
congressman. It alleged that at about 4:00 in the afternoon on May 28, 1998, the COMELEC
Chairman directed the district board of canvassers to suspend the canvass and proclamation
pending the resolution of the petition for correction of manifest error in the municipal certificate
of canvass of Malabon; that the district board of canvassers still proceeded with the canvass in
spite of the order; that the proclamation was made despite the non-inclusion of election returns
from 19 precincts in Malabon; and that the non-inclusion of these election returns will materially
affect the result of the election. Private respondent prayed that the proclamation of petitioner as
congressman be annulled and that the municipal board of canvassers of Malabon be ordered to
reconvene to include the 19 election returns in the canvass.
[16]

On June 2, 1998, the COMELEC en banc issued an order setting aside the proclamation of
petitioner. The COMELEC ruled that the proclamation by the district board of canvassers was
void because: (1) it was made in defiance of the verbal order by the COMELEC Chairman
relayed through Executive Director Resurrection Z. Borra to suspend the proclamation of the
winner in the congressional election until the Commission has resolved private respondent's
petition for correction of manifest error in the certificate of canvass; and (2) it was based on an
incomplete canvass. The dispositive portion of the order reads:4=L'41
"WHEREFORE, the proclamation made by the District Board of Canvassers of
Malabon and Navotas for the position of Congressman being void ab initio is no
proclamation at all. Meantime, it is hereby set aside.
"Atty .Ma. Anne Lacuesta is hereby relieved as Chairman, District Board of
Canvassers of Malabon-Navotas, and Atty. Consuelo B. Diola is named Chairman
of said Board. Atty. Diola is directed to maintain the status quo prior to the
Board's unauthorized proclamation, until further orders.
"Meantime, let these cases be set for hearing en banc on 09 June 1998 at 10:00
in the morning.
"SO ORDERED."
[17]

On June 8, 1998, petitioner filed this petition for certiorari seeking the annulment and reversal of
said order. Petitioner contended:
"1. Respondent COMELEC's annulment of petitioner Sandoval's proclamation as
winner in the election for congressman of Malabon-Navotas, without the benefit
of prior hearing, is grossly indecent and violates his right to due process of law.
"2. Respondent COMELEC's action on respondent Oreta's petitions violates
Republic Act 7166 which bars pre-proclamation cases in the elections of members
of the House of Representative.
"3. Respondent Oreta's remedy for seeking correction of alleged manifest errors in
the certificate of canvass for members of Congress does not lie with respondent
COMELEC but, initially with the municipal board of canvassers.
"4. At any rate, respondent Oreta's right to raise questions concerning alleged
manifest errors in the Malabon certificate of canvass is barred by his failure to
raise such questions before petitioner Sandoval's proclamation.
"5. Respondent Oreta's recourse lies with the House of Representatives Electoral
Tribunal which is not precluded from passing upon the allegedly uncanvassed
election returns in Malabon."
[18]

On June 9, 1998, we required the respondents to comment on the petition. We also issued a
temporary restraining order mandating the COMELEC to cease and desist from implementing
and enforcing the questioned order.
[19]

The COMELEC nonetheless conducted a hearing on June 9, 1998 , concerning SPC No.98-143
and SPC No.98-206.
Private respondent filed his comment
[20]
on June 22, 1998. He argued:
"1. Respondent COMELEC committed no jurisdictional error in declaring void ab
initio the proclamation of petitioner Sandoval as Congressman-elect for the
Malabon-Navotas legislative district.U1==
a. The premature and hasty proclamation of respondent Sandoval made by
the District Board on the basis of an incomplete canvass is illegal, hence,
null and void.
b. Respondent COMELEC substantially complied with the requirements
of due process in declaring the proclamation of respondent Sandoval an
absolute nullity.
"2. Respondent COMELEC properly took cognizance of respondent Oreta's
petition to correct manifest error in the certificate of canvass issued by the
Malabon board.
a. While technically a pre-proclamation case, correction of manifest errors
for purposes of the congressional elections is within the power and
authority of the COMELEC to order, in the exercise of its appellate and
original jurisdiction over such subject matter.
b. The failure of the Malabon board to tabulate the results of seventeen (
17) election returns and to record the votes supporting the certificate of
canvass resulted in a manifest error in the certificate of canvass which
should be summarily corrected by ordering the Malabon board to
reconvene, canvass the 17 election returns, record the votes in the
statement of votes and prepare a new certificate of canvass."
On June 29, 1998, then Solicitor General Silvestre Bello III filed a Manifestation and Motion in
Lieu of Comment.
[21]
He found the assailed order of the COMELEC null and void for the
following reasons:
"1. Respondent COMELEC's motu proprio and ex parte annulment of petitioner's
proclamation as winner in the election for congressman of Malabon-Navotas is
tainted with grave abuse of discretion amounting to lack or excess of jurisdiction
and violated petitioner's right to due process; and
"2. Respondent COMELEC had no jurisdiction over the petitions filed by
respondent Oreta, hence its order dated June 2, 1998 annulling petitioner's
proclamation is null and void."
In view of. the Solicitor General's manifestation and motion, we required the COMELEC to file
its own comment.
The COMELEC filed its comment on August 11, 1998. It invoked its power of direct control and
supervision over the board of canvassers, allowing it to review, revise and reverse the board's
actions. It said that it rendered the questioned order upon finding that petitioner's proclamation
was illegal and therefore void ab initio. It cited two reasons to support its findings: first, it was
made in disregard of the Chairman's verbal order to suspend the canvass and proclamation, and
second, it was based on an incomplete canvass.
[22]
4=4=-
On August 27, 1998, the new Solicitor General, Ricardo P. Galvez, filed a Manifestation and
Motion withdrawing the Manifestation and Motion filed ,by former Solicitor General Bello. The
Solicitor General, this time, upheld the validity of the assailed order. In essence, he argued that
the Malabon municipal board of canvassers failed to include 17 election returns in its canvass;
that such omission constitutes manifest error in the certificate of canvass which must be
corrected by the district board of canvassers; and that the proclamation of petitioner was void ab
initio because it was based on an incomplete canvass.
[23]

Petitioner and private respondent subsequently filed their respective reply, rejoinder and sur-
rejoinder.
Considering the arguments raised by the parties, the issues that need to be resolved in this case
are:
1. whether the COMELEC has the power to take cognizance of SPC No. 98-143
and SPC No. 98-206, both alleging the existence 'of manifest error in the
certificate of canvass issued by the Malabon municipal board of canvassers and
seeking to reconvene said board of canvassers to allow it to correct the alleged
error; and
2. whether the COMELEC's order to set aside petitioner's proclamation was valid.
On the first issue, we uphold the jurisdiction of the COMELEC over the petitions filed by private
respondent. As a general rule, candidates and registered political parties involved in an election
are allowed to file pre-proclamation cases before the COMELEC. Pre-proclamation cases refer
to any question pertaining to or affecting the proceedings of the board of canvassers which may
be raised by, any candidate or by any registered political party or coalition of political parties
before the board or directly with the Commission, or any matter raised under Sections 233, 234,
235 and 236 in relation to the preparation, transmission, receipt, custody and appreciation of
election returns.
[24]
The COMELEC has exclusive jurisdiction over all pre-proclamation
controversies.
[25]
As an exception, however, to the general rule, Section 15 of Republic Act (RA)
7166
[26]
. prohibits candidates in the presidential, vice-presidential, senatorial and congressional
elections from filing pre-proclamation cases.
[27]
It states:
"Sec. 15. Pre-proclamation Cases Not Allowed in Elections for President, Vice-
President, Senator, and Members 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 election returns or the certificates of canvass, as the case may be. However,
this does not preclude the authority of the appropriate canvassing body motu
propio or upon written complaint of an interested person to correct manifest
errors in the certificate of canvass or election returns before
it."4C<-4AA
The prohibition aims to avoid delay in the proclamation of the winner in the election, which
delay might result in a vacuum in these sensitive posts.
[28]
The law, nonetheless, provides
an exception to the exception. The second sentence of Section 15 allows the filing of petitions
for correction of manifest errors in the certificate of canvass or election returns even in
elections for president, vice- president and members of the House of Representatives for
the simple reason that the correction of manifest error will not prolong the process of canvassing
nor delay the proclamation of the winner in the election. This rule is consistent with and
complements the authority of the COMELEC under the Constitution to, "enforce and administer
all laws and regulations relative to the conduct of an, election, plebiscite, initiative, referendum
and recall"
[29]
and its power to "decide, except those involving the right to vote, all questions
affecting elections."
[30]

Applying the foregoing rule, we hold that the Commission has jurisdiction over SPC No. 98-
143 and SPC No.98-206, both filed by private respondent seeking to correct the alleged manifest
error in the certificate of canvass issued by the Malabon municipal board of canvassers. These
petitions essentially allege that there exists a manifest error in said certificate of canvass as the
board failed to include several election returns in the canvassing. Private respondent prays that
the board be reconvened to correct said error. Section 15 of RA 7166 vests the COMELEC
with jurisdiction over cases of this nature. We reiterate the long-standing rule that
jurisdiction is conferred by law and is determined by the allegations in the petition
regardless of whether or not the petitioner is entitled to the relief sought.
[31]

The authority to rule on petitions for correction of manifest error is vested in the COMELEC en
banc. Section 7 of Rule 27 of the 1993 COMELEC Rules of Procedure
[32]
provides that if the
error is discovered before proclamation, the board of canvassers may motu proprio, or upon
verified petition by any candidate, political party, organization or coalition of political parties,
after due notice and hearing, correct the errors committed. The aggrieved party may appeal the
decision of the board to the Commission and said appeal shall be heard and decided by the
Commission en banc. Section 5, however of the same rule states that a petition for correction of
manifest error may be filed directly with the Commission en banc provided that such errors
could not have been discovered during the canvassing despite the exercise of due diligence and
proclamation of , the winning candidate had already been made. Thus, we held in Ramirez vs.
COMELEC:
[33]
411Z<'
"Although in Ong, Jr. v. COMELEC it was said that 'By now it is settled that
election cases which include pre-proclamation controversies must first be heard
and decided by a division of the Commission' -- and a petition for correction of
manifest error in the Statement of Votes, like SPC 95-198 is a pre-proclamation ;
controversy -- in none of the cases cited to support this proposition was the issue
the correction of a manifest error in the Statement of Votes under Sec. 231 of the
Omnibus Election Code (BP. Blg. 881) or Sec. 15 of R.A. No.7166. On the other
hand, Rule 27, Sec. 5 of the 1993 Rules of the COMELEC expressly provides that
pre - proclamation controversies involving, inter alia, manifest errors in the
tabulation or tallying of the results may be filed directly with the COMELEC en
banc x x x."
[34]

Petitioner nonetheless contends that SPC No. 98-143 and SPC No. 98-206 must be dismissed
because private respondent failed to raise the issue of manifest error before the appropriate board
of canvassers in accordance with the second sentence of Section 15 of RA 7166.
We disagree.
The issue of manifest error in the certificate of canvass for Malabon has been raised before the
district board of canvassers before petitioner could be proclaimed and said board has in fact ruled
on the issue.
[35]
We find this as sufficient compliance with the law. The facts show that it was
impossible for private respondent to raise the issue before the Malabon municipal board of
canvassers as it still did not have a copy of the statement of votes and the precinct list at the time
of the canvassing in the municipal level. At that time, private respondent still had no knowledge
of the alleged manifest error. He, however, lost no time in notifying the COMELEC Chairman
and the district board of the alleged error upon discovery thereof. We find petitioner's argument,
therefore, to be devoid of merit.
We now go to the second issue. Although the COMELEC is clothed with jurisdiction over the
subject matter and issue of SPC No.98-143 and SPC No. 98-206, we find the exercise of its
jurisdiction tainted with illegality. We hold that its order to set aside the proclamation of
petitioner is invalid for having been rendered without due process of law. Procedural due process
demands prior notice and hearing. Then after the hearing, it is also necessary that the tribunal
show substantial evidence to support its ruling.
[36]
In other words, due process requires that a party
be given an opportunity to adduce his evidence to support his side of the case and that the
evidence should be considered in the adjudication of the case.
[37]
The facts show that COMELEC
set aside the proclamation of petitioner , without the benefit of prior notice and hearing and it
rendered the questioned order based solely on private respondent's allegations. We held in Bince,
J r. vs. COMELEC:
[38]
4L'4==|
"Petitioner cannot be deprived of his office without due process of law. Although
public office is not property under Section 1 of the Bill of Rights of the
Constitution, and one cannot acquire a vested right to public office, it is,
nevertheless, a protected right. Due process in proceedings before the
COMELEC, exercising its quasi-judicial functions, requires due notice and
hearing, among others. Thus, although the COMELEC possesses, in appropriate
cases, the power to annul or suspend the proclamation of any candidate, We had
ruled in Farinas vs. Commission on Elections, Reyes vs. Commission on
Elections and Gallardo vs. Commission on Elections that the COMELEC is
without power to partially or totally annul a proclamation or suspend the effects
of a proclamation without notice and hearing."
[39]

Citing Section 242 of the Omnibus Election Code, private respondent argues that the COMELEC
is authorized to annul an illegal proclamation even without notice and hearing because the law
states that it may motu proprio order a partial or total suspension of the proclamation of any
candidate-elect or annul partially or totally any proclamation, if one has been made. We reject
the argument. Section 242 of the Omnibus Election Code reads:
"Sec. 242. Commission's exclusive jurisdiction of all pre-proclamation
controversies.-- The Commission shall have exclusive jurisdiction of all pre-
proclamation controversies. It may motu proprioor upon written petition,
and after due notice and hearing, order the partial or total suspension of the
proclamation of any candidate-elect or annul partially or totally any proclamation,
if one has been made, as the evidence shall warrant in accordance with the
succeeding sections."
The phrase "motu proprio" does not refer to the annulment of proclamation but to the manner of
initiating the proceedings to annul a proclamation made by the board of canvassers. The law
provides two ways by which annulment proceedings may be initiated. It may be at the own
initiative of the COMELEC (motu proprio) or by written petition. In either case, notice and
hearing is required. This is clear from the language of the law.-1
We likewise reject private respondent's assertion that the hearing held on June 9, 1998
substantially satisfies the due process requirement. The law requires that the hearing be
held before the COMELEC rules on the petition. Here, the public respondent first issued an
order annulling the proclamation of petitioner and then set the date of the hearing. We explained
in Farinas vs. COMELEC
[40]
the pernicious effect of such procedure:
"As aptly pointed out by the Solicitor General, 'to sanction the immediate
annulment or even the suspension of the effects of a proclamation before the
petition seeking such annulment or suspension of its effects shall have been heard
would open the floodgates of unsubstantiated petitions after the results are known,
considering the propensity of the losing candidates to put up all sorts of obstacles
in an open display of unwillingness to accept defeat, or would encourage the
filing of baseless petitions not only to the damage and prejudice of winning
candidates but also to the frustration of the sovereign will of the
electorate.'" (citations omitted)
Public respondent submits that procedural due process need not be observed in this case because
it was merely exercising its administrative power to review, revise and reverse the actions of the
board of canvassers. It set aside the proclamation made by the district board of canvassers for the
position of congressman upon finding that it was tainted with illegality.
We cannot accept public respondent's argument.
Taking cognizance of private respondent's petitions for annulment of petitioner's proclamation,
COMELEC was not merely performing an administrative function. The administrative powers of
the COMELEC include the power to determine the number and location of polling places,
appoint election officials and inspectors, conduct registration of voters, deputize law
enforcement agencies and government instrumentalities to ensure free, orderly, honest, peaceful
and credible elections, register political parties, organizations or coalitions, accredit citizens'
arms of the Commission, prosecute election offenses, and recommend to the President the
removal of or imposition of any other disciplinary action upon any officer or employee it has
deputized for violation or disregard of its directive, order or decision. In addition, the
Commission also has direct control and supervision over all personnel involved in the conduct of
election. However , the resolution of the adverse claims of private respondent and petitioner
as regards the existence of a manifest error in the questioned certificate of canvass requires
the COMELEC to act as an arbiter. It behooves the Commission to hear both parties to
determine the veracity of their allegations and to decide whether the alleged error is a
manifest error. Hence, the resolution of this issue calls for the exercise by the COMELEC
of its quasi- judicial power. It has been said that where a power rests in judgment or discretion,
so that it is of judicial nature or character, but does not involve the exercise of functions of a
judge, or is conferred upon an officer other than a judicial officer, it is deemed quasi-
judicial.
[41]
The COMELEC therefore, acting as quasi-judicial tribunal, cannot ignore the
requirements of procedural due process in resolving the petitions filed by private
respondent.4U14-
IN VIEW WHEREOF, the COMELEC order dated June 2, 1998 in SPC No. 98-143 and SPC
No. 98-206 is ANNULLED. This case is REMANDED to the COMELEC and the Commission
is hereby ordered to hold a hearing on the issues presented in SPC No. 98-143 and SPC No. 98-
206, and thereafter render a decision based on the evidence adduced and the applicable laws. The
incident of whether or not petitioner may continue discharging the functions of the office of
congressman pending resolution of the case on its merit shall be addressed by the COMELEC in
the exercise of its reasonable discretion.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Pardo, J., took no part.2/18/00 11:26 AM



[1]
Rollo, p. 97.
[2]
Rollo, p. 98.
[3]
Rollo, p. 99.
[4]
Rollo, pp. 25-26.
[5]
Now Associate Justice of this Court.
[6]
Rollo, p. 101.
[7]
Rollo, p. 197.
[8]
Rollo, p. 27-28.
[9]
Rollo, p. 30.
[10]
Rollo, pp. 31-32.
[11]
Minutes of the Canvassing conducted on May 28, 1998 by the District Board of Canvassers for Malabon-
Navotas, Rollo, pp. 33-37.
[12]
Ibid.
[13]
Rollo, p. 38.
[14]
Rollo, p. 39.
[15]
Rollo, pp. 40-41.
[16]
Rollo, pp. 42-43.
[17]
Rollo, p. 50.
[18]
Rollo, pp. 11-21.
[19]
Rollo, pp. 55-57.
[20]
Rollo, pp. 70-95.
[21]
Rollo, pp. 270-297.
[22]
Rollo, pp. 367-386.
[23]
Rollo, pp. 450-456.
[24]
Section 241, Omnibus Election Code.
[25]
Section 242, supra.
[26]
An Act Providing for Synchronized National and Local Elections and for Electoral Reforms, Authorizing
Appropriations Therefor, and for other Purposes, approved by the House of Representatives on November 18, 1991
and by the Senate on November 20, 199
[27]
See Pangilinan vs. COMELEC, 228 SCRA 36 (1993); Chavez vs. COMELEC, 211 SCRA 315 (1992)
[28]
See Sanchez vs. COMELEC, 153 SCRA 67 (1987)
[29]
Section 2 (1), Article IX-C, 1987 Constitution.
[30]
Section 2 (3), Article IX-C, supra.
[31]
Santiago vs.Guingona, Jr., 298 SCRA 756 (1998); Union Bank of the Philippines vs. CA, 290 SCRA 198 (1998);
Chico vs. CA, 284 SCRA 33 (1997)
[32]
Took effect on February 15, 1993.
[33]
270 SCRA 590 (1997)
[34]
At pp. 596-507.
[35]
Minutes of the Canvassing conducted on May 28, 1998 by the District Board of Canvassers for Malabon-
Navotas, Rollo, pp, 33-37.
[36]
Reyes vs. COMELEC, 97 SCRA 500 (1980)
[37]
Gonzales vs. COMELEC, 101 SCRA 752 (1980)
[38]
218 SCRA 782 (1993)
[39]
At p. 792.
[40]
G.R. No. 81763, March 10, 1988 (Minute Resolution)
[41]
35A Words and Phrases 463.

EN BANC
[G.R. No. 135613. March 9, 2000]
ARTHUR V. VELAYO, petitioner, vs. COMMISSION ON ELECTIONS AND
ERNESTO NATIVIDAD, respondents.
D E C I S I O N
PUNO, J .:
In this special civil action for certiorari, petitioner Arthur V. Velayo seeks to set aside the
Resolution issued by respondent Commission on Elections dated October 6, 1998
annulling his proclamation, and directing the Board of Canvassers of Gapan, Nueva
Ecija to convene immediately, exclude Precincts 44A, 44A2, 50A and 50A1, and
immediately proclaim the winning candidate for Mayor of Gapan, Nueva Ecija.
Petitioner Arthur V. Velayo and private respondent Ernesto Natividad were among the
candidates for mayor of Gapan, Nueva Ecija in the May 11, 1998 elections. The
Municipal Board of Canvassers constituted to canvass the election results was
composed of Linda Sandoval
[1]
as Chairman, Eduardo Pancho
[2]
as Vice Chairman and
Eustaquita Tolentino
[3]
as member.
On May 12, 1998, the canvass of election returns started. Private respondent orally
sought the exclusion of Election Return Nos. 4245882 (Precinct 36A) and 4900753
(Precinct 103). Election Return No. 4245882 was objected on the ground that it is
incomplete and contains material defects.
[4]
Election Return No. 4900753 was objected
on the ground of material defects and that it does not contain the thumbmarks of official
watchers.
[5]
The Board denied the objections and continued with the canvass. h Y
On May 13, 1998, private respondent filed with the COMELEC (2nd Division) SPC No.
98-002.
[6]
The petition is entitled "In the Matter of the Challenge and Objection to the
Composition and Proceedings of the Municipal Board of Canvassers of Gapan, Nueva
Ecija and for Annulment of Certain Election Returns Illegally Canvassed and for
Suspension of Canvass of Election Returns Pending Substitution of the Challenged
Members Thereof." The petition did not name any respondent. Not the Municipal
Board of Canvassers. Neither petitioner Velayo. On the same date, the private
respondent
[7]
sent a letter to the Board seeking the disqualification of its Chairman and
Vice Chairman for alleged bias and gross violations of the law and COMELEC Rules
and Regulations. On May 14, 1998, the Board denied the prayer to suspend the
canvass "there being no valid and compelling reason to do so" and the request for
disqualification. On May 16, 1998, the private respondent sought reconsideration of the
Boards ruling.
[8]
His effort did not succeed and he filed a verified Notice of Appeal.
[9]
On
May 17, 1998, the Board proclaimed petitioner as the duly elected Mayor of
Gapan, Nueva Ecija with a vote of 10,697. Private respondent garnered 10,427
votes. Jksm
On May 18, 1998, the private respondent filed another case with the COMELEC
(2nd Division), SPC No. 98-050 entitled "In the Matter of the Appeal from the Adverse
Ruling of the Municipal Board of Canvassers for Gapan, Nueva Ecija, dated 14 May
1998, Seeking the Disqualification of Ms. Linda D. Sandoval and Eduardo Pancho to Sit
as Chairman and Vice Chairman thereof; to Suspend the Canvass and to
Suspend/Annul the Proclamation of the Winning Candidates."
[10]
Again, the petition did
not name the Municipal Board of Canvassers or the petitioner Velayo as
respondents. Neither were they furnished copies of the petition. The petition
prayed: Chief
"WHEREFORE, it is most respectfully prayed that after due proceedings,
judgment be rendered, as follows:
1. Declaring as null and void all acts and proceedings had by the
Municipal Board of Canvassers from 13 May 1998 when the same have
been challenged by the petitioner as illegal up to its last act thereof
particularly the canvass of election returns for the local elections only;
2. Ordering the substitution/replacement of Ms. Linda Sandoval and Mr.
Eduardo Pancho as chairperson and vice chairman of the Municipal Board
of Canvassers for Gapan, Nueva Ecija, and once substituted/replaced,
directing the substituted members of the Board to proceed with dispatch in
the canvass of the election returns;
3. Suspending the proclamation of the winning candidates until after a
faithful and impartial canvass of the returns shall have been had by the
substituted members of the Board, and the pre-proclamation controversies
bearing on the questioned matter resolved by this Honorable Commission;
and
4. Annuling the proclamation, if any shall have been illegally done by the
Board on the basis of the sham, pre-determined and manipulated canvass
of the returns as complained of herein.
Petitioner prays for other relief just and proper in the premises."
In the morning of May 19, 1998, Natividad filed a third case, SPC No. 98-073, entitled
"In the matter of the appeal from the written rulings dated 13, 14 and 15 May 1998 of
the Municipal Board of Canvassers for Gapan, Nueva Ecija, on contested Election
Returns No. 4900678 of Precinct No. 9A3/9A4 dated 13 May 1998; contested Returns
Nos. 4900775 of Precinct No. 43A2; 4900776 of Precinct No. 43A3; 4900828 of
Precinct No. 61A2; 4900780 of Precinct No. 45A/45A1; 4900789 of Precinct No. 99A;
4900774 of Precinct No. 43A1; 4900792 of Precinct Nos. 50A and 50A2; 4900844 of
Precinct No. 68A; 4900779 of Precinct No. 44A2; and 4900811 of Precinct No. 98A2 all
dated 14 May 1998 and contested Election Returns No. 4900777 of Precinct No.
56A2."
[11]
Later in the day, he submitted documentary evidence in support of his
appeal.
[12]
Again, neither the Board nor the petitioner was named respondent in the
appeal. They were not furnished copies of the petition. Esm
On May 21, 1998, the private respondent filed a Supplemental Appeal in SPC No. 98-
073. It was entitled "In the Matter of the Supplemental Appeal from the Written Rulings
dated 17 May 1998 of the Municipal Board of Canvassers for Gapan, Nueva Ecija, on
Contested Election Returns Nos. 4900773 of Precinct No. 43A; 4900775 of Precinct No.
43A2; 4900777 of Precinct No. 44A; and 4900789 of Precinct No. 44A1. Annexed to the
pleading were the documentary evidence of the private respondent.
[13]
Again, both the
Board and the petitioner were not made parties in the Supplemental Appeal. They
were not furnished copies of the Appeal.
On June 8, 1998, the private respondent filed a motion for admission of new and
additional evidence.
[14]
In SPC 98-050, he submitted twenty (20) affidavits. In SPC 98-
073, he submitted eight (8) affidavits. Petitioner was not furnished a copy of the
motion.
On June 9, 1998, the COMELEC (2nd Division)
[15]
dismissed SPC No. 98-002, SPC No.
98-050 and SPC No. 073 in an Order which reads: Esmsc
"In view of the proclamation by the Municipal Board of Canvassers of
Gapan, Nueva Ecija, of all the winning candidates for the municipal
positions of said municipality on May 17, 1998, as evidenced by duly
signed Certificate of Canvass of Votes and Proclamation of the Winning
Candidates for Municipal Offices [C.E. form No. 25] with Serial No.
03490337, this Commission [Second Division] RESOLVED, as it hereby
RESOLVES TO DISMISS this instant petition for being MOOT AND
ACADEMIC.
"SO ORDERED."
[16]

It is alleged by the private respondent that he received a copy of the Order on June 22,
1998.
On June 25, 1998, the private respondent filed a Motion for
Reconsideration contending that the Order of dismissal is contrary to law and the
evidence. He sought to restrain the proclamation of the petitioner.
[17]
Again, petitioner
was not furnished with a copy of the Motion. On July 3, 1998, the records of the
three (3) cases were elevated to the COMELEC en banc for resolution of private
respondents Motion for Reconsideration.
[18]
Again, petitioner was not furnished a
copy of the Order.
On October 6, 1998, the COMELEC en banc issued the questioned
Resolution,
[19]
the dispositive portion of which reads:
"WHEREFORE, premises considered, the proclamation of Arthur V.
Velayo is hereby ANNULLED. The Board of Canvassers of Gapan, Nueva
Ecija is hereby DIRECTED to convene immediately, exclude Precincts
44A, 44A2 and 50A & 50A1
[20]
and immediately proclaim the winning
candidate for mayor of Gapan, Nueva Ecija. Esmmis
"Further, they are directed to immediately inform the Commission of their
action thereon.
"SO ORDERED."
In so ruling, the COMMISSION en banc held that:
"A close perusal of the above-entitled cases would show that the above
objections and appeals were made strictly in accordance with law,
however, the Board in defiance of Section 245 and Section 20 of Republic
Act 7166, particularly sub-paragraph (i) included the assailed election
returns without giving opportunity to the aggrieved party to go on appeal to
the Commission.
"Said Section 20(i) of R.A. 7166 states:
The board of canvassers shall not proclaim any candidate as
winner unless authorized by the Commission after the latter has
ruled on the objections to it on appeal by the losing party. Any
proclamation made in violation thereof shall be void ab initio, unless
the contested returns will not adversely affect the results of the
election. Esmso
"In this case, it is clear that the objected election returns will adversely
affect the results of the elections.
"Thus, after close perusal of the above-cited objected election returns, the
Commission finds that the election returns of 44A, 44A2, and 50A1/A2
should be excluded from the canvass. It is worth noting that in these
precincts 44A and 44A2 petitioner Natividad got zero votes which is
statistically improbable. The affidavits of the following watchers
respectively to wit: Rolando C. Gamboa, Eduardo Mallare and Eduardo
Surio together with the police report of Miguel S. Inductivo of the threats
received by Danilo Simon, all watchers of petitioner, all in the dialect which
attest to the incident wherein they were prevented and threatened from
entering the polling place by four [un]identified men and they were able to
witness these men threatening the teachers and telling them to tamper the
election return in such a way that they will not be noticed by other people
and they will have no problem.
"Watchers play a vital role in protecting the votes especially during the
counting of votes in the precinct level. The fact that the watchers were
prevented and in fact heard the teachers threatened to have the election
returns altered makes the whole election process a mockery in these
precincts as the returns are no longer reflective of the true results of the
elections. It is no wonder then that in these precincts Natividad got zero
votes.
"Further, since there was already an objection against the two members of
the Board of Canvassers and their illegal proceedings they cannot
proceed to canvass, to cite Section 244 of the Omnibus Election
Code: Msesm
Section 244. Contested composition or proceedings of the board.
When the composition or proceedings of the board of canvassers
are contested, the board of canvassers shall, within twenty-four
hours, make a ruling thereon with notice to the contestant who, if
adversely affected, may appeal the matter to the Commission
within five days after the ruling with proper notice to the board of
canvassers. After due notice and hearing, the Commission shall
decide the case within ten days from the filing thereof. During the
pendency of the case, the board of canvassers shall suspend the
canvass until the Commission orders the continuation or
resumption thereof and citing their reasons or grounds therefor.
"Thus, the action of the Board in proclaiming the winning candidate for
mayor in the Municipality of Gapan is illegal for violation of Section 20(a)
to (i) of R.A. 7166 and Section 244 of the Omnibus Election Code."
[21]

It was only then that petitioner was informed of the Resolution by telegram on October
8, 1998.
In a letter
[22]
dated October 9, 1998, the Board, thru its new Chairman, Belen Rivera,
informed Velayo that it will convene on October 16, 1998. On October 17, 1998, it
proclaimed the private respondent as Mayor with a vote of 10,420.
In this special civil action for certiorari, petitioner contends:
"1. The questioned Resolution (Annex "A") of October 6, 1998 is ultra vires
and void ab initio because it was issued ex-parte, without notice and
opportunity afforded the petitioner to be heard and therefore, violative of
due process.
"2. The Comelec committed grave abuse of discretion amounting to lack of
jurisdiction when it did not dismiss respondent Natividads Motion for
Reconsideration on SPC Nos. 98-002, 98-050 and 98-073 for being filed
out of time.
"3. The Comelec committed grave abuse of discretion amounting to lack of
jurisdiction when it excluded the votes cast in Precincts 44A, 44A2, 50A
and 50A1 as manufactured and contrary to statistical probabilities without
the required notice and hearing consistent with due process. Exsm
"4. The Comelec committed grave abuse of discretion amounting to lack of
jurisdiction when it annulled the proclamation of petitioner without the
required notice and hearing consistent with due process.
"5. The Comelec committed grave abuse of discretion amounting to lack of
jurisdiction when it did not dismiss said pre-proclamation cases for the
reason that the grounds relied upon by respondent Natividad are proper
grounds for election protests."
In its Manifestation and Motion (in lieu of Comment), the Solicitor General agreed
with the petitioner and opined that the COMELEC gravely abused its discretion
when it issued the impugned resolution.
[23]
COMELEC filed its own Comment
sustaining its resolution. So did the private respondent.
We grant the petition. Kyle
FIRST. Private respondent maintains that the filing of his Motion for Reconsideration on
June 25, 1998 was within the 5-day reglementary period as he received a copy of the
June 9, 1998 Order of the COMELEC only on June 22, 1998. We do not agree with the
private respondent for he cannot count the 5-day reglementary period from the date he
received the June 9, 1998 Order of the COMELEC. Section 2, Rule 19 of the
COMELEC Rules of Procedure clearly provides that private respondent's Motion for
Reconsideration should be "x x x filed within five (5) days from
thepromulgation thereof," thus:
"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 (5) days from thepromulgation thereof. Such motion, if not pro-
forma, suspends the execution or implementation of the decision,
resolution, order or ruling."
A party cannot feign ignorance of the date of promulgation of a decision or resolution
because it is previously fixed and notice is served upon him in advance. Thus,
Section 5, Rule 18 of the COMELEC Rules of Procedure provides:
"Sec. 5. Promulgation. - The promulgation of a decision or resolution of
the Commission or a Division shall be made on a date previously fixed, of
which notice shall be served in advance upon the parties or their attorneys
personally or by registered mail or by telegram."
SECOND. Respondent COMELEC failed to be faithful to section 3 of Rule 27 of the
1993 COMELEC Rules of Procedure which provides that "all pre-proclamation
controversies shall be heard summarily after due notice x x x."
[24]

The records will show that petitioner was not furnished any notice of the pre-
proclamation proceedings against him from beginning to end. Respondent Natividad did
not give petitioner copies of his notices of appeal from the rulings of the Municipal Board
of Canvassers. Nor was petitioner given copies of private respondents petitions and
motions filed with the COMELEC. Even the COMELECs Second Division failed to notify
petitioner about the promulgation of its Order dated June 9, 1998 which dismissed the
pre-proclamation cases against him for being moot and academic. He was not also
given a copy of private respondents Motion for Reconsideration against said Order.
Also, he was not furnished a copy of the July 4, 1998 Order of the Comelec (2ndDivision)
which elevated respondent Natividads Motion for Reconsideration to the COMELEC en
banc. All that petitioner received from the COMELEC on October 8, 1998 was
its en bancresolution annulling his proclamation. Kycalr
It cannot be denied that petitioner Velayo is a real party in interest. As the proclaimed
Mayor, petitioner stands to be prejudiced by whatever action COMELEC may take on
the appeals filed by respondent Natividad. His non-inclusion as respondent and his
lack of notice of the proceedings in the COMELEC which resulted in the
cancellation of his proclamation constitute clear denial of due process.
THIRD. The Court agrees with the Solicitor General that pre and post proclamation
proceedings should be resolved summarily but not ex parte. We quote his sound
submission, viz.:
"The record shows that petitioner had no participation whatsoever in all
the proceedings conducted before the COMELEC. He was not furnished
with a copy of any of the three (3) petitions filed by private respondent
before the COMELEC (Annexes B, B-1 and B-2, Petition). This fact is
admitted by private respondent himself in his Comment on the Petition
dated November 12, 1998, thus: Calrky
1. Petitioner has no legal personality to file the special civil action herein
under Rule 65 of the Rules of Court because he is/was not a party to the
three pre-proclamation cases, namely, SPC Nos. 98-002, 98-050 and 98-
073 filed by answering respondent before public respondent Commission
on Election hereafter referred to as the COMELEC.
(p. 1, Private Respondents Comment; emphasis ours)
In Jagunap v. Commission on Elections, 104 SCRA 204 (1981), this
Honorable Court ruled that a proclamation of a winning candidate can be
set aside only after due notice and hearing, viz:
Upon the facts of the case, We find that the COMELEC had,
indeed, gravely abused its discretion, amounting to lack of
jurisdiction, in annulling the proclamation of JAEN as the elected
Municipal Mayor of Leganes, Iloilo. JAEN was not furnished with a
copy of any petition or motion to set aside his proclamation; nor
was he notified of the hearing of such petition or motion. As a
matter of fact, the records of the case do not indicate that a hearing
was ever conducted by the COMELEC before it ordered the
annulment of the proclamation of JAEN. This to Us is an
irregularity. JAEN, who has already been proclaimed by the
Municipal Board of Canvassers of Leganes, Iloilo, has the right to
be notified of any proceeding to set aside his proclamation, and a
hearing is necessary before the COMELEC can order the
annulment of his proclamation. Section 175 of the 1978 Election
Code explicitly provides that the COMELEC can order the
annulment of a proclamation of a candidate-elect on any of the
grounds mentioned in Sections 172, 173 and 174 thereof
(defective, tampered and falsified election returns, and
discrepancies in the election returns) only after due notice and
hearing. Said section reads as follows:
Sec. 175. Suspension and annulment of
proclamation. The Commission shall be the sole
judge of all pre-proclamation controversies and any of
its decisions, orders or rulings shall be final and
executory. It may motu propio or upon written petition,
and after due notice and hearing order the
suspension of the proclamation of a candidate-elect
or annul any proclamation, if one has been made, on
any of the grounds mentioned in Sections 172, 173
and 174 hereof.Mesm
It results that COMELEC Resolution No. 9431, dated March 1,
1980, and COMELEC Resolution No. 9456, dated May 6, 1980,
which were issued without the notice and hearing, are arbitrary, and
therefore, null and void. The proclamation of JAGUNAP, being
based upon these void resolutions, is, consequently, of no legal
effect, and should be set aside.
Furthermore, Section 246 of B.P. Blg. 881, otherwise known as the
Omnibus Election Code of the Philippines, as amended by Section 18 of
R.A. 7166, provides that pre-proclamation cases must be disposed of
summarily but not ex parte, viz:
Section 246. Summary disposition of pre-proclamation
controversies. All pre-proclamation controversies on election
returns on certification of canvass shall, on the basis of the records
and evidence elevated to it by the board of canvassers, be
disposed of summarily by the Commission within seven (7) days
from receipt thereof. Its decisions shall be executory after the lapse
of seven (7) days from receipt by the losing party of the decision of
the commission.
x x x
A judicial proceeding, order or injunction, etc. is said to be ex parte when it
is taken or granted at the instance and for the benefit of one party only
and without notice to, or contestation by any person adversely interested.
An ex parte hearing is one in which the court or tribunal hears only one
side of the controversy (Blacks Law Dictionary, Sixth Edition, p. 576).
In the case at bar, petitioners proclamation as Mayor of Gapan, Nueva
Ecija by the Municipal Board of Canvassers on May 17, 1998 was not only
summarily annulled by the COMELEC. It was annulled ex parte, i.e., solely
on the basis of the evidence presented by private respondent, absolutely
depriving petitioner an opportunity to present his rebuttal evidence.
This ex parte annulment of petitioners proclamation is null and void for
being repugnant to the due process clause of the Constitution and, should,
therefore, be set aside conformably with Jagunap (supra)."
It is true that RA No. 7166 provides for summary proceedings in pre-proclamation
cases and does not require a trial type hearing. Nevertheless, summary proceedings
cannot be stretched to mean ex parte proceedings. Summary simply means with
dispatch, with the least possible delay. It signifies that the power may be exercised
without a trial in the ordinary manner prescribed by law for regular judicial proceedings.
But although the proceedings are summary, the adverse party nevertheless must at the
very least be notified so that he can be apprised of the nature and purpose of the
proceeding.
[25]
In the case at bar, all the proceedings were conducted by the respondent
COMELEC without the participation of the petitioner. Worse, respondent Natividad was
allowed to file various motions without the knowledge of the petitioner. Plainly, these
ex parte proceedings offend fundamental fairness and are null and void.
FOURTH. To be sure, Republic Act No. 7166 introduced several electoral reforms and
some of them relate to the disposition of pre-proclamation controversies. Among others,
it provides that pre-proclamation controversies on election returns or certificates of
canvass must be disposed of summarily by the COMELEC on the basis of the
records and evidence adduced in the Board of Canvassers. Thus, section 20 of RA
No. 7166 which repealed Section 245 of the Omnibus Election Code provides:
"SEC. 20. Procedure in disposition of contested election returns. (a) Any
candidate, political party or coalition of political parties contesting the
inclusion or exclusion in the canvass of any election returns on any of the
grounds authorized under Article XX or Section 234, 235 and 236 of
Article XIX of the Omnibus Election Code shall submit their oral objection
to the chairman of the board of canvassers at the time the questioned
return is presented for inclusion in the canvass. Such objection shall be
recorded in the minutes of the canvass.
(b) Upon receipt of any such objection, the board of canvassers shall
automatically defer the canvass of the contested returns and shall proceed
to canvass the returns which are not contested by any party.
(c) Simultaneous with the oral objection, the objecting party shall also
enter his objection in the form for written objections to be prescribed by
the Commission. Within twenty-four (24) hours from and after the
presentation of such an objection, the objecting party shall submit the
evidence in support of the objection, which shall be attached to the form
for written objections. Within the same period of twenty-four (24) hours
after presentation of the objection, any party may file a written and verified
opposition to the objection in the form also to be prescribed by the
Commission, attaching thereto supporting evidence, if any. The board
shall not entertain an objection or opposition unless reduced to writing in
the prescribed forms. Slx
The evidence attached to the objection or opposition submitted by the
parties, shall be immediately and formally admitted into the records of the
board by the chairman affixing his signature at the back of each and every
page thereof.
(d) Upon receipt of the evidence, the board shall take up the contested
returns, consider the written objections thereto and opposition, if any, and
summarily and immediately rule thereon. The board shall enter its ruling
on the prescribed form and authenticate the same by the signatures of its
members.
(e) Any party adversely affected by the ruling of the board shall
immediately inform the board if he intends to appeal said ruling. The board
shall enter said information in the minutes of the canvass, set aside the
returns and proceed to consider the other returns.
(f) After all the uncontested returns have been canvassed and the
contested returns ruled upon by it, the board shall suspend the canvass.
Within forty-eight (48) hours therefrom, any party adversely affected by the
ruling may file with the board a written and verified notice of appeal; and
within an unextendible period of five (5) days thereafter, an appeal may be
taken to the Commission.
(g) Immediately upon receipt of the notice of appeal, the board shall make
an appropriate report to the Commission, elevating therewith the complete
records and evidence submitted in the canvass, and furnishing the parties
with copies of the report.
(h) On the basis of the records and evidence elevated to it by the board,
the Commission shall decide summarily the appeal within seven (7) days
from receipt of the said records and evidence. Any appeal brought before
the Commission on the ruling of the board, without the accomplished
forms and the evidence appended thereto, shall be summarily
dismissed. Scslx
The decision of the Commission shall be executory after the lapse of
seven (7) days from receipt thereof by the losing party.
(i) The board of canvassers shall not proclaim any candidate as winner
unless authorized by the Commission after the latter has ruled on the
objections brought to it on appeal by the losing party. Any proclamation
made in violation hereof shall be void ab initio, unless the contested
returns will not adversely affect the results of the election."
Appeal from the decision of the Board of Canvassers is governed by Section 18 of RA
7166, viz.:
"SEC. 18. Summary disposition of pre-proclamation controversies. All
pre-proclamation controversies on election returns or certificates of
canvass shall, on the basis of the records and evidence elevated to it
by the board of canvassers, be disposed of summarily by the
Commission within seven (7) days from receipt thereof. Its decision
shall be executory after the lapse of seven (7) days from receipt by the
losing party of the decision of the Commission."
In the case at bar, we have carefully examined the records and it does not clearly
appear that the COMELEC annulled the proclamation of Velayo on the basis of the
official records and evidence adduced by the parties before the Board of Canvassers.
The importance of these official records and evidence cannot be overemphasized. The
records contain the contested election returns, the objections of the aggrieved party, the
opposition of the prevailing party, the evidence of the parties, and the rulings of the
Board of Canvassers. R.A. No. 7166 explicitly provides that it is only on the basis of
these official records that the COMELEC can decide the pre-proclamation controversy
in a summary manner. Without the official records, the respondent COMELEC cannot
validly decide a pre-proclamation controversy. There is no showing that the official
records of the Board of Canvassers were forwarded to the respondent COMELEC
and were used to cancel Velayos proclamation. Slxsc
FIFTH. Worse still, the respondent COMELEC annulled the proclamation of petitioner
Velayo on the basis of new and additional evidence submitted by the private
respondent. These new and additional evidence were not presented before the
Board of Canvassers. Petitioner Velayo was not furnished these evidence and
given the chance to refute them. In SPC No. 98-050, these pieces of new and
additional evidence are:
"(1) Affidavit of Isagani V. Manuel dated 18 May 1998 consisting of two
pages attached hereto as Annex A and made an integral part hereof;
(2) Affidavit of Romeo Natividad dated 20 May 1998 consisting of two (2)
pages copy of which is attached hereto as Annex B and made an integral
part hereof;
(3) Affidavit of Danilo Natividad dated 19 May 1998 consisting of two (2)
pages copy of which is attached hereto as Annex C and made an integral
part hereof;
(4) Joint affidavit of Dindo C. Alvarez and Berlin Alvarez (dated) 20 May
1998 consisting of two (2) pages copy of which is attached hereto as
Annex D and made an integral part hereof;
(5) Joint affidavit of Myrna Angelina Cosio and Rachel G. Navarro dated
19 May 1998 copy of which is attached hereto as Annex E and made an
integral part hereof;
(6) Joint affidavit of Lourdes M. Malaca and Adelwiso P. Malaca dated 19
May 1998 copy of which is attached hereto as Annex F and made an
integral part hereof;
(7) Joint affidavit of Leovigildo Angeles and Joselito Arcilla dated 20 May
1998 copy of which is attached hereto as Annex G and made an integral
part hereof;
(8) Joint affidavit of Francisco Angeles and Hilario Garcia dated 18 May
1998 copy of which is attached hereto as Annex H and made an integral
part hereof;
(9) Joint affidavit of Arlene Ayroso and Jamaiza Garcia dated 20 May
1998 copy of which is attached hereto as Annex I and made an integral
part hereof;
(10) Joint affidavit of Belinda Reyes and Corazon Reyes dated 20 May
1998 copy of which is attached hereto as Annex J and made an integral
part hereof;
(11) Joint affidavit of Elenita Pablo and Ariel Gutierrez dated 20 May 1998
copy of which is attached hereto as Annex K and made an integral part
hereof;
(12) Joint affidavit of Francisco Mauro and Bernardo Santos dated 19 May
1998 copy of which is attached hereto as Annex L and made an integral
part hereof; Slxmis
(13) Joint affidavit of Lorenzo Rueda and Ceferino Sta. Maria consisting of
two (2) pages copy of which is attached hereto as Annex M and made an
integral part hereof;
(14) Joint affidavit of Rommel Oanes and Jonnel Robello dated 19 May
1998 copy of which is attached hereto as Annex N and made an integral
part hereof;
(15) Joint affidavit of Enrico Matias and Ronald Tolentino dated 20 May
1998 copy of which is attached hereto as Annex O and made an integral
part hereof;
(16) Joint affidavit of Cesar Natividad and Belinda Tinio dated 20 May
1998 copy of which is attached hereto as Annex P and made an integral
part hereof;
(17) Joint affidavit of Fernando Caralde and Angelito Nepomuceno dated
18 May 1998 copy of which is attached hereto as Annex Q and made an
integral part hereof;
(18) Joint affidavit of Evaristo Bunag and Donald Alvarez dated 19 May
1998 copy of which is attached hereto as Annex R and made an integral
part hereof;
(19) Joint affidavit of Roberto Manipon and Gerry Fernandez dated 20
May 1998 copy of which is attached hereto as Annex S and made an
integral part hereof; and
(20) Joint affidavit of Roberto dela Cruz and Leonardo Reyes dated 20
May 1998 copy of which is attached hereto as Annex T and made an
integral part hereof."
[26]

In SPC 98-073, the new and additional evidence are the following: Missdaa
"(1) Election Returns No. 4900773 (Precinct No. 43A)
Certification by the PNP, Gapan Police Station, Gapan, Nueva Ecija, that
the complaint of Danilo Simon that he was threatened as watcher of
Precinct No. 43A by four (4) unidentified men as follows: `Magsilayas na
kayo dito pagpapatayin ko kayo, was entered in the Police Blotter of
Gapan Police Station on 11 May 1998 copy of which is attached hereto as
Annex Y and made an integral part hereof and accompanied by the
affidavit of Danilo Simon dated 14 May 1998, Annex Y-1 hereof.
Joint affidavit of Nestor Pascual and Gerry Mangahas dated 22 May 1998
copy of which is attached hereto as Annex Z and made an integral part
hereof;
(2) Election Returns No. 4900774 (Precinct No. 43A1)
Joint affidavit of Perfecto San Gabriel and Rico Andres dated 22 May
1998 copy of which is attached hereto as Annex AA and made an integral
part hereof;
(3) Election Returns No. 4900775 (Precinct No. 43A2)
Joint affidavit of Editha Pasco and Jose San Gabriel dated 22 May 1998
copy of which is attached hereto as Annex BB and made an integral part
hereof;
(4) Election Returns No. 4900776 (Precinct No. 43A3)
Joint affidavit of Eladio Bartolome and Edgar Gatus dated 22 May 1998
copy of which is attached hereto as Annex CC and made an integral part
hereof;
(5) Election Returns No. 4900777 (Precinct No. 44A)
Joint affidavit of Rolando Linsangan and Samuel Lazaro dated 22 May
1998 copy of which is attached hereto as Annex DD and made an integral
part hereof;
(6) Election Returns No. 4900778 (Precinct No. 44A1)
Joint affidavit of Ramon Natividad and George Lazaro dated 22 May 1998
copy of which is attached hereto as Annex EE and made an integral part
hereof;
(7) Election Returns No. 4900779 (Precinct No. 44A2)
Joint affidavit of Eduardo A. Santiago and Guillermo Gatus dated 22 May
1998 copy of which is attached hereto as Annex FF and made an integral
part hereof;
(8) Election Returns No. 4900779 (Precinct No. 44A2)
Joint affidavit of Francisco delos Santos and Cesar Nanalis dated 22 May
1998 copy of which is attached hereto as Annex GG and made an integral
part hereof; and
(9) Election Returns No. 4900792 (Precinct No. 50A1/50A2)
Joint affidavit of Roberto S. Delegiado and Eduardo Hernandez dated 22
May 1998 copy of which is attached hereto as Annex HH and made an
integral part hereof."
[27]

Again, it cannot be gainsaid that petitioner was denied due process by the
respondent COMELEC. Sdaadsc
SIXTH. Even granting that the respondent COMELEC can consider the new and
additional evidence of the private respondent, their examination will show that their
evidentiary value cannot justify the annulment of the proclamation of petitioner
Velayo. The COMELEC relied on the affidavits of the watchers of the private
respondent, namely: Rolando C. Gamboa, Eduardo Mallare and Eduardo Surio
together with the police report of Miguel S. Inductivo on the alleged threats received by
Danilo Simon.
The Affidavits
[28]
of Danilo Simon read:
(1) "REPUBLIC OF THE PHILIPPINES)
PROVINCE OF NUEVA ECIJA) S.S.
MUNICIPALITY OF GAPAN) Rtcspped
AFFIDAVIT
Ako si Danilo Simon, may sapat na gulang, asawa at naninirahan sa
Mangino, Gapan, Nueva Ecija ng naaayon sa batas ay nagsasaad ng
sumusunod:
Na, nuong ika-11 ng Mayo 1998 ay inutusan ako ni Ernesto L. Natividad
na magdala ng itinalaga sa mga presinto sa Kapalangan, Mahipon, Bungo
at Makabaklay, Gapan, Nueva Ecija.
Na, isinagawa ko ang pagdadala ng pagkain ng watchers ng bandang ika
10:00 ng umaga.
Na, ng dumating ako sa eskuwelahan ng Kapalangan na siyang
pinagdadausan ng botohan ay natuklasan ko na walang watchers ang
Liberal Party o mga kandidato nito sa mga lugar ng botohan sa
Kapalangan.
Na ng malaman ko ang ganitong pangyayari ay ipinagbigay alam ko kay
Ginoong Ernesto L. Natividad na kandidato para Mayor ng Gapan, Nueva
Ecija na siyang kandidato opisyal ng Liberal Party.
Sa katotohanan ng lahat, ay kusang loob kong nilagdaan ang Affidavit na
ito ngayong ika-14 ng Mayo 1998 dito sa Gapan, Nueva Ecija.
(SGD). DANILO SIMON
Nagsasalaysay"
(2) "REPUBLIKA NG PILIPINAS )
LALAWIGAN NG NUEVA ECIJA) S.S.
BAYAN NG GAPAN )
SINUMPAANG SALAYSAY
Ako, si Danilo Simon, may asawa, Pilipino at naninirahan sa Mangino,
Gapan, Nueva Ecija ng naaayon sa batas ay nagsasaad ng sumusunod:
Na, nuong ika-11 ng Mayo 1998, nagpunta ako sa Himpilan ng Pulisya ng
Gapan, Nueva Ecija at inireport ko ang tungkol sa ginawa sa mga
watchers ng Liberal Party sa mga presinto sa Kapalangan.
Na, kalakip nito ang kopya ng Police Blotter.
Sa katotohanan ng lahat ay kusang loob akong lumagda ngayong ika-14
ng Mayo 1998 dito sa Gapan, Nueva Ecija. Korte
(SGD). DANILO SIMON
Nagsasalaysay"
The police report of SPO1 Miguel Inductivo
[29]
reads:
"Republic of the Philippines
National Police Commission
PHILIPPINE NATIONAL POLICE
GAPAN POLICE STATION
Gapan, Nueva Ecija
-o0o-
GPS-IN May 14, 1998
SUBJECT: Certification
TO WHOM IT MAY CONCERN:
This is to CERTIFY, that it appear(s) in the Police Blotter of Gapan Police
Station, Gapan, Nueva Ecija on page 0741 with entry number 0829 dated
11 May 1998, the following entries and read as follows:
THREAT
'Danilo Simon y Nunez, 43 years old, married, driver, election
watcher, resident of Mangino, Gapan, Nueva Ecija personally
appeared and complained to this station that on or about 111800
(sic) May 1998 inside Precinct No. 43A, Kapalangan, Gapan,
Nueva Ecija his watcher I.D. and Watcher Appointment was
grabbed from his hand and threw by four (4) unidentified men and
threatened him "Magsilayas kayo dito pag papatayin ko kayo."
Complainant further relayed he and his companion watcher Manny
Legaspi of Kapalangan, Gapan, Nueva Ecija left the said voting
precinct due to the incident.
(SGD) DANILO SIMON
Case reported and recorded by SPO2 RUPERTO H. SIMON PNP.
Issued upon request of Mr. Danilo N. Simon, for whatever any legal
purpose it may serve.
FOR THE CHIEF OF POLICE
(SGD) MIGUEL S. INDUCTIVO
SPO1 PNP
Investigator"
The Affidavit
[30]
of Eduardo Mallare reads:
"REPUBLIC OF THE PHILIPPINES )
PROVINCE OF NUEVA ECIJA ) S.S.
MUNICIPALITY OF GAPAN )
A F F I D A V I T
Ako, si Eduardo Mallare, may asawa at naninirahan sa Sta. Cruz, Gapan,
Nueva Ecija matapos makapanumpa ng naaayon sa batas ay malaya at
kusang loob na nagsasaad ng sumusunod:
Na, ako ay inapoint ni G. Ernesto Natividad bilang watcher sa presinto
44A2 sa Kapalangan, Gapan, Nueva Ecija;
Na, ayaw akong kilalaning watcher ng mga maestra na nakatalaga sa
presinto 44A2 at hindi rin ako binigyan ng CVC;
Na, hindi ako pinayagang umalis ng compound ng eskwelahan ng
Kapalangan hanggat hindi tapos ang mga ginagawa ng mga titsers;
Na, nadinig na sinabihan ng mga lalake ang mga titser sa presinto 44A2
na gawing malinis ang pagreretoke ng election return.
Lumagda ako sa salaysay na ito ng kusang loob ngayong ika-14 ng Mayo
1998 dito sa Gapan, Nueva Ecija.
(SGD) EDUARDO MALLARE
Nagsasalaysay"
The Affidavit
[31]
of Eduardo Surio reads:
"REPUBLIC OF THE PHILIPPINES )
PROVINCE OF NUEVA ECIJA ) S.S.
MUNICIPALITY OF GAPAN )
A F F I D A V I T
Ako, si Eduardo Surio, may asawa at naninirahan sa San Lorenzo,
Gapan, Nueva Ecija matapos makapanumpa ng naaayon sa batas ay
malaya at kusang loob na nagsasaad ng sumusunod:
Na, itinalaga ako ni G. Eto Natividad bilang watcher niya sa presinto
50A1-50A2 sa Mahipon, Gapan, Nueva Ecija;
Na, hindi ako pinayagang pumasok sa loob ng presinto ng apat na lalake
at ipinasabi sa titsers na hindi ako puwede sa loob ng presinto at binawal
din akong umalis ng bakuran ng eskwelahan hanggat hindi nila ako
pinaaalis;
Na, nadinig ko na sinabihan ng mga lalake ang mga titsers na ayusin ang
election return para masiyahan ang kanilang amo.
Sa katunayan ng lahat ay kusang loob akong lumagda ngayong ika-14 ng
Mayo 1998 dito sa Gapan, Nueva Ecija.
(SGD) EDUARDO SURIO
Nagsasalaysay"
The Affidavit
[32]
of Rolando Gamboa reads:
"REPUBLIC OF THE PHILIPPINES )
PROVINCE OF NUEVA ECIJA ) S.S.
MUNICIPALITY OF GAPAN )
A F F I D A V I T
Ako, si Rolando C. Gamboa, may asawa at nakatira sa Mangino, Gapan,
Nueva Ecija matapos makapanumpa ng ayon sa batas ay malaya at
kusang loob na nagsasaad ng sumusunod:
Na, inapoint akong watcher ni G. Eto Natividad sa presinto 44A sa
Kapalangan, Nueva Ecija nuong May 11, 1998;
Na, hindi ako nakapasok sa kwarto na kinalalagyan ng presinto 44A dahil
binawal ako ng limang lalake at sinabihan na huwag akong umuwi
hanggat hindi naguuwian ang mga titsers sa presinto 44A;
Na, hindi ako nakakuha ng CVC dahil ayaw akong bigyan ng mga titsers
dahil utos daw sa kanila;
Na, narinig ko na inutusan ang mga titsers ng limang lalaki na gawing
maganda o mataas ang bilang ng boto ng Velayo na hindi halatain ang
pagsasaayos.
Nilagdaan ko ang salaysay na ito ng kusang loob ngayong ika-14 ng Mayo
1998 dito sa Gapan, Nueva Ecija.
(SGD) ROLANDO C. GAMBOA
Nagsasalaysay"
Taken together, these affidavits do not constitute substantial evidence to justify the
cancellation of petitioner Velayos proclamation. As aforestated, Simon, Mallare, Surio
ang Gamboa areall watchers of the private respondent and hence are not impartial
witnesses. A circumspect examination of these affidavits will show their worthlessness,
thus: (1) affidavits of Danilo Simon. In his first Affidavit, he said: "Na, ng dumating ako
sa eskuwelahan ng Kapalangan na siyang pinagdadausan ng botohan ay natuklasan ko
na walang watchers ang Liberal Party o mga kandidato nito sa mga lugar ng botohan sa
Kapalangan." Such a statement does not establish anything wrong with any election
return. In his second Affidavit executed on the same date, he changed his
statement by alleging: "Na, nuong ika-11 ng Mayo 1998, nagpunta ako sa Himpilan ng
Pulisya ng Gapan, Nueva Ecija at inireport ko ang tungkol sa pananakot na ginawa sa
mga watchers ng Liberal Party sa mga presinto sa Kapalangan." In the second Affidavit
he also mentioned threats to watchers of the Liberal Party. Nevertheless, he did not
state the nature of the threat, the names of the watchers, the names of the culprit
and whether the threats affected the elections. In the police blotter, Simon further
embroidered his report. He alleged therein that it was he whose watcher ID and
Appointment were grabbed and thrown away by four unidentified men and who
threatened "Magsilayas kayo dito pagpapatayin ko kayo." Also, he added, that his
companion watcher Manny Legaspi left the precinct due to the incident. The changes in
Simons story destroy his credibility. Indeed, the police did not even investigate his
report. In any event, Simons affidavits did not establish that the voters of private
respondent failed to vote. They did not prove that any election return was
particularly tampered. They did not prove any electoral malpractice of petitioner
Velayo or any of his people. It bears stressing that petitioner Velayo and private
respondent Natividad were not the only candidates for mayor of Gapan; (2) the
affidavit of Ernesto Mallare was no better. He merely alleged he was not recognized by
the teachers as a watcher; that he was not allowed to leave the school compound; and
that he heard some men tell the teachers in Precinct 44A2 "na gawing malinis ang
pagreretoke ng election return." The affidavit is meaningless for it does not name the
teachers concerned and the men who gave the order to tamper the election return and
whether or not the teachers obeyed. It is also incredible that he was allowed to stay in
the precinct while efforts to tamper with the returns were being made. It is also
incredible that he did not report to the police his illegal detention and the tampering of
the election returns; (3) likewise the affidavit of Eduardo Surio has but a scrap value.
He merely alleged he was barred from entering and leaving the precinct by men whom
he did not identify. He said the same men ordered the teachers whom he did not
identify"na ayusin ang election returns para masiyahan ang kanilang amo." He did not
say whether the teachers obeyed, what election returns were doctored, and the
identity of the "amo." Such generalizations do not constitute evidence, let alone
evidence of any illegal act or omission on the part of petitioner Velayo to justify
cancellation of his proclamation. Surio also failed to make a police report; (4) the
affidavit of Rolando C. Gamboa is likewise bereft of value. It did not name names. It
alleged "na narinig ko na inutusan ang mga titsers ng limang lalaki na gawing maganda
o mataas ang bilang ng boto ng Velayo na hindi halatain ang pagsasaayos." Again, it is
not clear whether the teachers complied. It is not clear whether the Velayo
referred to is petitioner Arthur Velayo. He also did not report to the police.
To repeat, all these affiants are watchers of respondent Natividad. The
truthfulness of their affidavits is highly suspect. The more impartial witnesses
like the teachers were not presented by Natividad. Indeed, these complaints of
the affiants do not appear to have been raised by Natividad during the canvassing
of the election returns in Precincts 44A, 44A2 and 50A1 and 50A2. Thus, some of
the election returns in Precinct Nos. 44A and 44A2, 50A and 50A2 were not
excluded because the objections merely related to formal defects and did not
affect the integrity and authenticity of the returns.
[33]
In fine, the affidavits of private
respondent Natividad are insufficient proofs to annul petitioner Velayos proclamation for
as we held in Casimiro, et al. v. COMELEC, et al.:
[34]

"Obviously, the evidence relied upon mainly by petitioners to support their
charges of fraud and irregularities in the election returns and in the
canvassing consisted of Affidavits prepared by their own representatives.
The self-serving nature of said Affidavits cannot be discounted. As this
Court has pronounced, reliance should not be placed on mere affidavits x
x x. Sclaw
"Aside from said sworn statements, the records do not indicate any other
substantial evidence that would justify the exclusion of election returns in
the canvassing for being fraudulent in character nor a declaration that the
proceedings wherein the returns were canvassed were null and void. The
evidence presented by petitioners is not enough to overturn the
presumption that official duty had been regularly performed. x x x In the
absence of clearly convincing evidence, the election returns and the
canvassing proceedings must be upheld. A conclusion that an election
return is obviously manufactured in the canvass must be approached with
extreme caution, and only upon the most convincing proof."
Finally, respondent COMELECs resort to the doctrine of statistical improbability is
flawed. As observed by petitioner Velayo, from experiences in past elections,
respondent COMELEC should be aware that it is possible for one candidate or even a
few candidates to get zero votes in one or a few precincts. In his Memorandum,
petitioner Velayo attached some Statement of Votes as Annexes A to A-5, where it can
be readily gleaned that there were not a few candidates who obtained zero votes in
certain precincts in that particular election.
Standing alone and without more, the bare fact that a candidate for public office
received zero votes in one or two precincts can not adequately support a finding that the
subject election returns are statistically improbable. A no-vote for a particular candidate
in election returns is but one strand in the web of circumstantial evidence that those
election returns were prepared under "duress, force and intimidation."
[35]
In the case
of Una Kibad v. Comelec,
[36]
we warned that the doctrine on statistical improbability
must be viewed restrictively, the utmost care being taken lest in penalizing the
fraudulent and corrupt practices, which indeed is called for, innocent voters become
disenfranchised, a result which hardly commends itself. This specially applies to the
case at bar where respondent COMELECs ruling is premised on questionable affidavits
of private respondents witnesses, and election returns which appear to be regular on
their face. Moreover, the doctrine of statistical improbability involves a question of fact
and a more prudential approach prohibits its determination ex parte. Sclex
IN VIEW WHEREOF, the Resolution of the respondent COMELEC (en banc) dated
October 6, 1998 is hereby SET ASIDE, the proclamation of private respondent Ernesto
Natividad is declared NULL and VOID and COMELEC is ordered to REINSTATE
petitioner Arthur V. Velayo as Mayor of Gapan, Nueva Ecija, effective immediately upon
receipt of this decision. Costs against private respondent.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Kapunan, Panganiban, Quisumbing, Purisima, Buena,
Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Mendoza, J., see concurring opinion.
Vitug, J., see dissenting opinion.
Pardo, J., no part.



[1]
Acting Election Officer.
[2]
Municipal Treasurer.
[3]
District Supervisor.
[4]
See Original Records of SPC 98-002, p. 8.
[5]
Ibid., p. 9.
[6]
Ibid., pp. 1-6.
[7]
Original Records of SPC 98-050, p. 2.
[8]
Ibid., p. 13.
[9]
Ibid., p. 14.
[10]
Ibid., pp. 1-14.
[11]
Ibid., pp. 1-18.
[12]
Ibid., pp. 20-38.
[13]
Ibid., pp. 58-73.
[14]
Original Records of SPC 98-002, pp. 27-129.
[15]
Signed by Julio F. Desamito (Presiding Commissioner) and Japal M. Guiani, Commissioner.
[16]
Rollo, p. 267.
[17]
Original Records of SPC 98-073, pp. 82-92.
[18]
Ibid., pp. 101-102.
[19]
Rollo, pp. 23-31.
[20]
Precinct 50A2 is clustered with Precinct 50A1 because only one election return was prepared for said cluster.
Hence, Precinct 50A2 was also excluded from the canvassing; Rollo, pp. 108-110.
[21]
Rollo, pp. 27-30.
[22]
Ibid., p. 88.
[23]
Rollo, pp. 215-230.
[24]
Section 3. Summary hearing and disposition of pre-proclamation controversies. All pre-proclamation
controversies shall be heard summarily after due notice provided that pre-proclamation controversies on election
returns or certificates of canvass shall, on the basis of the records and evidence to it by the board of canvassers, be
disposed of summarily by the Commission en banc within seven (7) days from receipt thereof x x x.
[25]
Cox v. Dixie Power, Co., 16 P.2d 916.
[26]
Original Records of SPC 98-002, pp. 35-36; 47-72.
[27]
Ibid., pp. 38-39; 77-87.
[28]
Original Records of SPC 98-073, pp. 27-28.
[29]
Ibid., p. 29.
[30]
Ibid., p. 33.
[31]
Ibid., p. 38.
[32]
Ibid., p. 68.
[33]
Original Records of SP 98-002, pp 117-118, 119, 121.
[34]
171 SCRA 468 (1989).
[35]
Sangki v. COMELEC, et al., 21 SCRA 1392 (1967).
[36]
23 SCRA 588 (1968).









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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-25444 January 31, 1966
WENCESLAO RANCAP LAGUMBAY, petitioner,
vs.
THE COMMISSION ON ELECTIONS and CESAR CLIMACO, respondents.
Wenceslao R. Lagumbay for the petitioner.
Ambrosio Padilla for the respondents.
BENGZON, C.J .:
This petition prays for revision of an order of the Commission on Elections declining to reject the returns of certain precincts of
some municipalities in Mindanao. The Constitution provides for review by this Court of the rulings of the said Commission.
The matter being urgent, and having reached the conclusion that the returns of certain questioned precincts were "obviously
manufactured" within the meaning of pertinent jurisprudence, particularly Mitchell v. Stevens,
1
we issued on December 24, 1965,
a short resolution upholding the Commission's power and duty to reject the returns of about fifty precincts.
It appearing therein that contrary to all statistical probabilities in the first set, in each precinct the number of
registered voters equalled the number of ballots and the number of votes reportedly cast and tallied for each and
every candidate of the Liberal Party, the party in power; whereas, all the candidates of the Nacionalista Party
got exactly zero; and in the second set, again contrary to all statistical probabilities all the reported votes
were for candidates of the Liberal Party, all of whom were credited with exactly the same number of votes in each
precinct, ranging from 240 in one precinct to 650 in another precinct; whereas, all the candidates of the
Nacionalista Party were given exactly zero in all said precincts.
We opined that the election result to said precincts as reported, was utterly improbable and clearly incredible. For it is not likely,
in the ordinary course of things, that all the electors of one precinct would, as one man, vote for all the eight candidates of the
Liberal Party, without giving a single vote to one of the eight candidates of the Nacionalista Party. Such extraordinary coincidence
was quite impossible to believe, knowing that the Nacionalista Party had and has a nationwide organization, with branches in
every province, and was, in previous years, the party in power in these islands.
We also know from our experience in examining ballots in the three Electoral Tribunals (Presidential, Senate, and House) that a
large portion of the electors do not fill all the blanks for senators in their ballots. Indeed, this observation is confirmed by the big
differences in the votes received by the eight winning senators in this as well as in previous national elections;
2
almost a million
votes between the first place and the eight. Furthermore, in 1965, the total number of electors who cast their votes was
6,833,369 (more or less). If every voter had written eight names on his ballot, the total number of votes cast for all the
candidates would be that number multiplied by 8, namely 54,666,952. But the total number of the votes tallied for the candidates
for senator amounted to 49,374,942 only. The difference between the two sums represents the number of ballots that did not
contain eight names for senators. In other words, some 5 million ballots did not carry eight names. Of course, this is a rough
estimate, because some ballots may have omitted more names, in which case, the number of incomplete ballots would be less.
But the general idea and the statistical premise is there.
The same statistical result is deducible from the 1963 election data: total number of electors who voted, 7,712,019; if each of
them named eight senators, the total votes tallied should have been 61,696,152; and yet the total number tallied for all the
senatorial candidates was 45,812,470 only. A greater number of incomplete ballots.
It must be noted that this is not an instance wherein one return gives to one candidate all the votes in the precinct, even as it
gives exactly zero to the other. This is not a case where some senatorial candidates obtain zero exactly, while some others
receive a few scattered votes. Here, all the eight candidates of one party garnered all the votes,each of them receiving exactly the
same number, whereas all the eight candidates of the other party got preciselynothing.
The main point to remember is that there is no block-voting nowadays.
What happened to the vote of the Nacionalista inspector? There was one in every precinct. Evidently, either he became a traitor
to his party, or was made to sign a false return by force or other illegal means. If he signed voluntarily, but in breach of faith, the
Nacionalista inspector betrayed his party; and, any voting or counting of ballots therein, was a sham and a mockery of the
national suffrage.
Hence, denying prima facie recognition to such returns on the ground that they are manifestly fabricated or falsified, would
constitute a practical approach to the Commission's mission to insure free and honest elections.
In Mitchell vs. Stevens, supra, the returns showed a noticeable excess of votes over the number of registered voters, and the
court rejected the returns as obviously "manufactured". Why? The excess could have been due to the fact that, disregarding all
pertinent data, the election officers wrote the number of votes their fancy dictated; and so the return was literally a
"manufactured", "fabricated" return. Or maybe because persons other than voters, were permitted to take part and vote; or
because registered voters cast more than one ballot each, or because those in charge of the tally sheet falsified their counts.
Hence, as the Mitchell decision concluded, the returns were "not true returns . . . but simply manufactured evidences of an
attempt to defeat the popular will." All these possibilities and/or probabilities were plain fraudulent practices, resulting in
misrepresentation of the election outcome. "Manufactured" was the word used. "Fabricated" or "false" could as well have been
employed.
The same ratio decidendi applies to the situation in the precincts herein mentioned. These returns were obviously false or
fabricated prima facie. Let us take for example, precinct No. 3 of Andong, Lanao del Sur. There were 648 registered voters.
According to such return all the eight candidates of the Liberal Party got 648 each,
3
and the eight Nacionalista candidates got
exactly zero. We hold such return to be evidently fraudulent or false because of the inherent improbability of such a result
against statistical probabilities specially because at least one vote should have been received by the Nacionalista candidates,
i.e., the vote of the Nacionalista inspector. It is, of course, "possible" that such inspector did not like his party's senatorial line-up;
but it is not probable that he disliked all of such candidates, and it is not likely that he favored all the eight candidates of the
Liberal Party. Therefore, most probably, he was made to sign an obviously false return, or else he betrayed his party, in which
case, the election therein if any was no more than a barefaced fraud and a brazen contempt of the popular polls.
Of course we agree that frauds in the holding of the election should be handled and finally settled by the corresponding
courts or electoral tribunals. That is the general rule, where testimonial or documentary evidence, is necessary; but where the
fraud is so palpable from the return itself (res ipsa loquitur the thing speaks for itself), there is no reason to accept it and give
it prima facie value.
At any rate, fraud or no fraud, the verdict in these fifty precincts may ultimately be ascertained before the Senate Electoral
Tribunal.
4
All we hold now, is that the returns show "prima facie" that they do not reflect true and valid reports of regular voting.
The contrary may be shown by candidate Climaco in the corresponding election protest.
The well-known delay in the adjudication of election protests often gave the successful contestant a mere pyrrhic victory, i.e., a
vindication when the term of office is about to expire, or has expired. And so the notion has spread among candidates for public
office that the "important thing" is the proclamation; and to win it, they or their partisans have tolerated or abetted the tampering
or the "manufacture" of election returns just to get the proclamation, and then let the victimized candidate to file the protest, and
spend his money to work for an empty triumph.
It is generally admitted that the practice has prevailed in all previous elections. Never was the point pressed upon us in a more
clear-cut manner. And without, in any way, modifying our stand as outlined in the Nacionalista Party vs. Commission decision, we
feel the mores of the day require application even extension of the principle in the Mitchell decision, which is realistic and
common sensical even as it strikes a blow at such pernicious "grab - the - proclamation - prolong - the - protest" slogan of some
candidates or parties.
It is strongly urged that the results reported in these returns are quite "possible", bearing in mind the religious or political control
of some leaders in the localities affected. We say, possible, not probable. It is possible to win the sweepstakes ten times; but not
probable. Anyway, judges are not disposed to believe that such "control" has proved so powerful as to convert the electors into
mere sheep or robots voting as ordered. Their reason and conscience refuse to believe that 100% of the voters in such precincts
abjectly yet lawfully surrendered their precious freedom to choose the senators of this Republic.
Indeed, social scientists might wonder whether courts could, consistently with morality and public policy,
5
render judgment
acknowledging such "control" or validating such "controlled votes" as candidate Climaco chose to call them.
In view of the foregoing, and overlooking some intemperate language which detracts from the force of the arguments, we hereby
deny the motion to reconsider our resolution of December 24, 1965, as well as the petition for a re-hearing.
Concepcion, Reyes, J.B.L. Dizon and Makalintal, concur.
Separate Opinions
BARRERA, J ., concurring:
I vote with the majority, for, as the dissenting opinion of Mr. Justice Jose P. Bengzon points out, the line must be drawn
somewhere and because I believe the Chief Justice has traced it at the point where it can at all be reasonably placed, where
logic and experience both direct it to be. I take it that Justice Bengzon does not question the logic of the prevailing doctrine that
the board of canvassers can legally discard "obviously manufactured" returns, as he accepts the exercise of that power where
the returns report a number of votes cast in excess of the number of registered voters. He merely objects to the extension of that
power to the situation obtaining in the present case wherein more than 50 precincts in the same provinces where our experience
proves election has never been without extensive frauds, the returns disclose uniformly 100% voting, 100% in favor of 100% of
the candidates of one party and 100% zero for 100% of the candidates of the other party. And the basis of his objection is that
this result is not physically or theoretically impossible and could possibly reflect the actual voting, fraudulently as it may be, the
solution of which he states, lies with the Electoral Tribunal. My answer is, if physical or theoretical impossibility is to be the
criterion, then returns evincing greater number of votes cast than registered voters should not also be discarded as it is
theoretically possible that with our experience regarding flying voters, ballots could possibly be cast in excess of the registered
voters, which constitutes likewise, a fraud that could be corrected in an electoral contest. Then where shall we draw the line? Or
shall we draw no line at all as insinuated by Justice Regala in his own dissenting opinion, and leave all questions relating to
returns, to the corresponding electoral tribunal?
Both dissents express fear as to the consequences of the majority opinion, suggesting that the board of canvassers could
become the tyrannical arbiters of the result of elections. In my opinion, if the line is not drawn as it has been done in the majority
opinion, there would be the greater evil of the tyranny of the board of inspectors who prepare the returns in the hundreds of
thousands of electoral precincts, who, because of their number and their widespread distribution all over the country, are more
prone to political influence and more difficult to subject to scrutiny and supervision of those entrusted by law to preserve clean,
honest and free elections. As between the two tyrannies, possible if we adopt a too sanctimonious regard for the election returns,
that of the board of canvassers, less numerous in number and composed of sworn public officials, seems to be the less
pervasive and pernicious as the perpetuators are likely to be more amenable to reason, supervision and control.
BENGZON, J.P., J ., dissenting:
As once observed by a renowned jurist: "In law, as in life, lines have to be drawn. But the fact that a line has to be drawn
somewhere does not justify its being drawn anywhere. The line must follow some direction of policy, whether rooted in logic or
experience."
1
For me, the majority view in the case at bar, by adopting the criterion of "statistical probabilities" in drawing the line
between returns "obviously manufactured" and returns not of that kind, has drawn a shifting, movable and uncertain line, liable to
run without direction of policy, without regard to logic and contrary to experience.
Furthermore, in my view, the majority would, against the provision of our Constitution, share the Senate Electoral Tribunal's
exclusive power to judge all contests relating to the election, returns and qualifications of Senators. For it has in effect exercised,
and authorized boards of canvassers likewise to exercise, the power to annul votes on the ground of fraud or irregularity in the
voting a power that I consider alien to the functions of a canvassing body and proper only to a tribunal acting in an electoral
protest. For these reasons, I am impelled to respectfully express the following dissenting opinion, in accordance with the
reservation made at the time the resolution of this Court was adopted.
The present suit is clearly a petition for certiorari under Rule 65, not an appeal by certiorari under Rule 43 of the Rules of Court.
For its ground it alleges "a grave abuse of discretion amounting to excess of jurisdiction".
2
Such a ground is proper only in a
petition for certiorari as a special civil action and not as an appeal. For that matter the petition does not cavil the fact that it seeks
an extraordinary writ. It states that "Petitioners have no other plain, speedy and adequate remedy in the ordinary course of
law"
3
and does not even bother to indicate that a notice of appeal has been filed with the Commission on Elections, as required
by section 2 of the Rule 43 in cases of appeals. It is captioned "For Certiorari and Prohibition".
4
Needless to say, prohibition
cannot be joined with appeal, for such a remedy can be resorted to only where appeal does not lie. The Supreme Court, under
the Constitution, has no general powers of supervision over the Commission on Elections except those specifically granted by
the Constitution, that is, to review the decisions, orders and rulings of the Commission which may be brought upproperly before
the Supreme Court (Nacionalista Party vs. De Vera, 85 Phil. 126, 129). In this instance, no appealfrom the decision of the
Commission has properly been taken to this Court.
As raised by the pleadings, therefore, the point at issue is this: Did the Commission on Elections gravely abuse its discretion in
finding the election returns in question to be genuine?
As a board of canvassers with respect to the election of Senators, pursuant to Section 166 of the Revised Election Code, the
Commission on Elections is a ministerial body, duty-bound to accept the returns transmitted to it in due form, and to ascertain
and declare the result only as it appears therefrom (Nacionalista Party vs. Commission on Elections, 85 Phil. 149). A prerequisite
to the performance of said ministerial functions, however, is the power to determine the genuineness of the returns. For this
reason, as a step sine qua non to the fulfillment of its proper task, it can also exercise the quasi-judicial power of deciding
whether a particular return is genuine. Nonetheless, in so deciding, it cannot go behind the returns. In short, the genuineness of
the returns as far as canvassing is concerned is to be determined solely from the face of said returns. The rulings to this
effect are clear:
It is settled beyond controversy that canvassers cannot go behind the returns. The returns provided for by law are the sole and
exclusive evidence from which a canvassing board or official can ascertain and declare the result. The canvassers are not
authorized to examine or consider papers or documents which are transmitted to them with the returns, or as returns, but which
under the statutes do not constitute part of the returns. (Dizon vs. Provincial Board of Canvassers, 52 Phil. 47. See also 29 C.J.S.
659; McCrary on Elections, pp. 198-199.)
So it is that all the instances petitioner cites of a board of canvassers being held justified in refusing to count a return, involve
returns that can be pronounced non-genuine simply on the basis of what appears therefrom. For purposes of this case, the
noteworthy example is that mentioned in Nacionalista Party vs. Commission on Elections, supra: "where the returns are
obviously manufactured, as where they show a great excess of votes over what could legally have been cast".1wph1.t
For me, there is no doubt that in such a case the returns betray their falsity by their very contents. They set forth as the result of
the voting in a precinct something which can be seen to be false without having to examine anything but the returns themselves.
And the reason is simple. It is impossible for the votes to have in fact been as the returns assert them.
Petitioner would however extend the same treatment to returns where 100 percent voting is shown and the candidates of one
party are credited with all such votes. In my opinion the situation is radically different. For this time it is possible for such a voting
to have in fact taken place. Consequently, it is possible for the returns to be in fact genuine.
The discussion by the majority opinion of "statistical probabilities" does not establish that the votes inside the ballot boxes are not
or cannot be as the returns say they are. Resort to the ballot boxes themselves would be needed to prove that the returns are
false, that is, that in fact the votes are not as the returns state them to be.
A conclusion, then, that the aforesaid returns are obviously manufactured, does not necessarily follow from the 100 per cent
voting that they set forth. Appreciation of probabilities, statistical or otherwise, can at most only classify such voting as highly
improbable.
Stated otherwise, when the point at issue is whether it is possible or impossible, the Commission on Elections or the Supreme
Court is empowered to find that a return is obviously manufactured, in that it states what is impossible. Not so where the question
is whether it is probable or improbable, no matter the degree of improbability, in which case the subject matter pertains to the
Electoral Tribunal. In the former, one deals with a certainty, namely, the impossibility. In the latter, one is faced with something
debatable, namely, probability or improbability, which necessarily entails an element of doubt, and to resolve said doubt perforce
one has to open the ballot boxes. As long as the voting stated in them is a possibility, returns in due form must be accepted by
the board of canvassers.
It is true that chances are that in cases of 100 per cent voting, fraud, intimidation or other violations of the Election Law obtained.
But said irregularities could have been in the conduct of the elections itself. From the face of the returns alone the irregularity
cannot be fixed on said returns. So the board of canvassers soundly exercised its discretion in accepting said returns and leaving
the deeper inquiry into the presence of fraud or other irregularities, not shown on the face of the returns, to the proper forum,
namely, the Senate Electoral Tribunal. Said tribunal is under the Constitution "the sole judge of all contests relating to
the election, returns and qualifications" of Senators (Arts. VI, Sec. II, Constitution of the Philippines).
Stated differently, it does not strike me as contrary to all "statistical probabilities" for the votes in some precincts to be what the
returns in question state them. For other factors, such as fraud or irregularity in the voting factors which "statistical
probabilities" ought likewise to reckon with could have been present and responsible for the straight voting therein. In such
event, the fraudulent and irregular voting notwithstanding, the returns showing the straight voting are genuine, not manufactured,
since they but faithfully reflect the count of votes inside the ballot boxes. For the annulment of those votes, no matter how
detestable the fraud or irregularity vitiating them, the remedy is not to reject the returns for being obviously manufactured, which
they are not, resulting in this case in the disenfranchisement of the affected voters in the three provinces without due process of
law. The remedy is to file a protest with the proper Electoral Tribunal and there raise the issue of fraud in the voting, where it is
exclusively cognizable.
The set-up in our system of determining the results of elections of Senators, places the acceptance and counting of the returns
on the Commission on Elections, subject to correction by the Supreme Court in case of grave abuse of discretion or error of law,
and the decision of electoral protests on the Senate Electoral Tribunal.
Speaking again of drawing lines, I hold the view that the jurisdictional line between the Senate Electoral Tribunal and other
bodies, such as the Supreme Court or the Commission on Elections, should not be plotted along "statistical probabilities". For
that is not where the Constitution draws the line. It constitutes the Senate Electoral Tribunal the SOLE judge of ALL contests
relating to the ELECTION, RETURNS, and qualifications of Senators, without regard to whether the voting subject matter of said
contests is or is not contrary to all "statistical probabilities". "SOLE JUDGE", "ALL CONTESTS" and "RELATING TO . . .
RETURNS" are the meaningful KEY PHRASES in the Constitution.
Following "statistical probabilities" as the norm for judging the genuineness of election returns is, as aforesaid, drawing a line
without direction of a policy rooted in logic or experience. Not in logic, because the consideration that fraud or irregularity
attended an election which results in straight voting, only strengthens the view that their corresponding returns accurately stated
such voting and are therefore genuine. Not in experience, for straight and one-hundred per cent voting has in fact occurred
before, in other places. It occurred among others in at least 4 precincts of 3 municipalities in Cavite during the last elections.
5
It
may indeed be irregular, but it is not impossible. This is not to give a stamp of approval on any of the so-called controlled voting.
In my view such voting is derogatory of the freedom that underlies our democracy. The point, however, is that in regard to such
evils the forum of solution lies elsewhere.
Assuming that the instant suit is but an appeal from a decision of the Commission on Elections, the result would be the same.
Although the issue would be not grave abuse of discretion but mere error of law, I do not think the Commission on Elections
erred on a point of law in finding genuine the returns with the aforesaid 100 per cent voting. There is no provision of law
repugnant to such a finding. And this Court, in passing on appeal upon the decision of the board of canvassers, cannot depart
from the rule that the genuineness of election returns, for purposes of inclusion in the canvass, is to be judged solely from what
appears on their face. Applying such a rule, the returns in question cannot be struck out as false or obviously manufactured. At
least, respondent Commission on Elections cannot be said to have erred in not so striking them out.
Nonetheless, even as I disagree as to procedure and choice of means, I fully agree with the desire of the majority to purify the
elections. Such a noble intention and such alone, I do not hesitate to say, is behind the decision of this Court. In a deliberative
body like this Court the right to dissent is indeed essential, but I feel it is also the privilege and, at times like this, the duty of a
dissenting member to stress the fact that the difference of opinions, does not detract from an ideal firmly, and with devotion, held
in common..
As one, therefore, who shares their ideals and realizes that theirs is the purest of motives, I disagree with the majority in the
pursuit of these ends. The intensity of the zeal shown by the majority to achieve a laudable purpose has taken them beyond the
limits set by our Constitution. And sublime though the objective is, I cannot go that far to attain it.
I therefore sustain the view that the decision of the Commission on Elections accepting and counting the returns in question
should not be disturbed herein and that the remedy is electoral protest. Between the lines, I could see against the good intention
of the majority opinion. Subscribe to the aim of the majority view to strengthen our democracy we should, and I do, as long as we
remain within the bounds laid down by law. For "we cannot transcend the law to foster the reign of law".
6
The realization of an
eminent purpose, such as preserving democracy, must still be done through proper channels ordained by law. The fact that an
electoral protest is often decided so late that the people's choice could not even serve them is a problem which, I agree with the
majority, needs to be solved; but it is not for the Supreme Court to solve, because the Supreme Court is not a policy-making body
in our government. It is indeed one of the three pillars of our Republic, but each of said pillars has its own sphere of action. In the
name of purifying elections, this Court cannot go against the policy laid down by statutes and the Constitution.
Finally, this Court has frowned upon what came to be popularly known as "short cut" in the discharge of powers or duties
authorized or required by law.
7
The decision of the majority from which I dissent, notwithstanding its praiseworthy intention, tends
to sanction a short cut of the nature hitherto frowned upon.
I therefore dissent from the decision of the majority.
Bautista Angelo and Zaldivar, JJ., concur.
REGALA, J ., dissenting:
I concur in the dissenting opinion of Justice Bengzon but I wish to add a few words..
In the first place, I cannot subscribe to the majority opinion that "obviously manufactured" returns may be annulled by this Court.
With respect to the contested returns, it is my view that the Senate Electoral Tribunal, and only that body, has the right and the
jurisdiction to exercise that power. Our Constitution has been most careful to provide that the said Tribunal shall be
"the sole judge of all contests relating to the election, returns and qualifications" of Senators (Article VI, sec. II). The assumption
by this Court of the power that it did in this case, in effect amends the aforementioned provision to provide that the Senate
Electoral Tribunal shall be "the judge of some contests relating to the election, returns and qualifications" of Senators. The result
is that the word "all" has been reduced to just "some" by this Court as it excludes therefrom such returns as are, in the language
of the decision, "obviously manufactured."
Of course, the majority opinion attempts to deny the above by rationalizing that "the verdict in these fifty precincts may ultimately
be ascertained before the Senate Electoral Tribunal. All we hold now, is that the returns show 'prima facie' that they do not reflect
true and valid reports of regular voting. The contrary may be shown by candidate Climaco in the corresponding election protest."
In the second place, the majority opinion has rejected fifty (50) election returns covering fifty (50) different precincts spread over
three provinces in favor of Climaco on the ground that they are "obviously manufactured,"contrary to the finding made by the
Commission on Elections that the said election returns are "regular and genuine returns," a finding which the Commission on
Elections made after examination and verification of the returns in the presence of parties concerned and their counsel.
The majority opinion has failed to lay down any standard as to what returns are to be considered as statistically "probable" or
"improbable." The judgment in that regard, it would seem, has been left solely to the boards of canvassers. I am profoundly
alarmed that this void in the majority opinion and this failure to set the minimum element for what may be deemed, as
"statistically improbable," leaving the matter completely at the hands of partisan or politically influenced boards of canvassers, will
only allow for the commission of far more brazen and far more barefaced frustration of the popular will than has ever been
experienced by this country.
What right has this Court to determine for the Senate Electoral Tribunal the "prima facie" value of the returns which it must go
over? Why must this Court impose upon the said Tribunal its own judgment as to what is prima facie "statistically probable or
improbable"?
Electoral protests may, indeed, take the whole term of the office concerned to decide. The victory of the winning candidate may
after all be an empty one. But that is no reason for this Court to take a step not allowed by the Constitution. This Court, we have
need to remind ourselves I think, is not the repository of remedies for all our ills. And not even the best of intention and the
noblest of motives will justify it from assuming power it is not given under the Charter.
For these, as well as the reasons given in the dissenting opinion of Justice Bengzon, I would vote for granting of the motion for
reconsideration filed by the attorney for Climaco.
Bautista Angelo, J., concurs.
Footnotes
1
23 Kans. 456, 33 Am. Rep. cited in 18 Am. Rep. and Nacionalista Party vs. Commission on Elections.
2
The eight received 3,629,834; 3,472,689; 3,463,159; 3,234,966; 3,191,000; 3,037,666; 3,014,618; 2,972,525,
respectively.
3
One hundred per cent voted. Yet statistics show that all over the Islands, the percentage of voting was 79.5%
only; and in Tarlac and Bulacan where facilities of communication are abundant, the percentage was 85.98 and
85.81 only.
4
This answers the erroneous claim that our decision usurps functions of the Senate Electoral Tribunal.
5
Block-voting has been abolished.
BARRERA, J., concurring:
1
Justice Felix Frankfurter, dissenting, in Pearce vs. Commissioner of Internal Revenue, 315 U.S. 543, 558.
2
Petition, p. 6.
3
Petition, p. 10.
4
Petition, p. 1.
5
1965 Elections: Bailen, Cavite Precinct No. 10, all Liberals got 255 votes, all others, got zero, Precinct No. 12,
all Liberals got 228 votes, all others got zero. Silang, CavitePrecinct No. 34, all Liberals got 287 votes, all
others zero. Ternate, CavitePrecinct No. 7, all Liberals got 90 votes, all others zero. Also, in 1961 Elections:
Saramain, Lanao del SurPrecinct No. 1, NP Senatorial Candidatesall got 383 votes each; LPs all got zero.
6
Nacionalista Party vs. Commission on Elections, supra, at 154.
7
E.g., Gonzales vs. Hechanova, et al., L-21897, October 22, 1963.

The Lawphil Project - Arellano Law Foundation



EN BANC
[G.R. No. 136282. February 15, 2000]
FRANCISCO D. OCAMPO, petitioner, vs. COMMISSION ON ELECTIONS,
MUNICIPAL BOARD OF CANVASSERS OF STA. RITA, PAMPANGA and
ARTHUR L. SALALILA, respondents.
[G.R. No. 137470. February 15, 2000]
FRANCISCO D. OCAMPO, petitioner, vs. ARTHUR L.
SALALILA, respondent.
D E C I S I O N
KAPUNAN, J .:
The case before us hinges on the question of whether or not to include in the canvass
the contested election returns.
The facts are as follows:
Francisco D. Ocampo and Arthur L. Salalila were candidates for Mayor in the
Municipality of Sta. Rita, Province of Pampanga during the May 11, 1998 elections.
There were 78 precincts in said municipality. During the canvassing of the election
returns which started on May 12, 1998 and ended on May 14, 1998 petitioner moved for
the exclusion of the election returns in 8 precincts from Barangay Basilia considering
that the turnout of votes was allegedly lopsided against his favor. The results were as
follows: Ky-le
Precinct No.........................VOTES RECEIVED BY
.....................................OCAMPO............SALALILA
1. 88-A-1..............................0......................165
2. 89-A-1..............................0......................104
3. 90-A & 90-A-1..................3......................192
4. 92-A.................................0......................152
5. 93-A & 94-A.....................7......................236
6. 99-A & 100-A...................7......................205
7. 104-A...............................5......................155
8. 105-A...............................3......................115
[1]

..........................................------.................------
..........................................25 votes................1,324 votes
The grounds for the exclusion of the election returns in the aforementioned precincts
were: i.e: (1) that the same were obviously manufactured; (2) they were defective for
they contained no data on the number of registered votes in the precinct, actual number
of votes cast and the number of valid votes cast; and (3) other alleged discrepancies in
the data on votes cast and total number of registered voters and excess ballots.
[2]

Finding the contested election returns to be genuine and authentic and without merit,
the Municipal Board of Canvassers (MBC) ruled to order the inclusion in the canvass of
the contested election returns.
[3]

On May 16, 1998, petitioner went to see the Chairman of the MBC at his office to file his
Notice of Appeal. Since the latter was not present, petitioner instead filed said notice
with Board Members Nelia Salvador and Diosdado L. Amio who, however, refused to
accept the same in line with the Boards earlier ruling not to receive anymore the Notice
of Appeal. Upon request, a Certification to that effect was issued by Nelia Salvador and
Disodado Amio on the same date.
[4]

On May 18, 1998, petitioner went to the COMELEC and filed a formal appeal.
[5]
This was
docketed as SPC No. 98-056. On June 29, 1998, the COMELEC Second Division,
rendered a Resolution stating the following: E-xsm
x x x
Respondent MBC should have at least suspended its canvass in so far as
the question or contested election returns were concerned. x x x x
In precinct 88-A-1 the election return is lacking in material data as there
were no entries as to the number of registered voters in the precinct, the
actual number of votes cast and the number of valid votes cast. In such a
situation it is incumbent upon the MBC to call the members of the Board of
Election Inspectors (BEI) to complete the data which failed to do so.
In precinct 89-A-1 there was a discrepancy in the figure of the total
number of valid votes cast and the number of votes received by private
respondent Salalila. Moreover, two (2) member (sic) of the BEI did not
affixed (sic) their thumbmark in the questioned election returns rendering
their authenticity doubtful. There is material discrepancy in the election
return as it is (sic) states therein that there were 197 voters who actually
voted. And also it was also stated therein that there were 22 excess
ballots and therefore the number of voters who actually voted will be 219
in excess of the 215 total number of registered voters for the precinct.
In precincts 92-A the return states that there were 153 voters who actually
voted and private respondent Salalila received 152 votes while petitioner
got zero (0), one (1) vote therefore is clearly missing.
In 93-A and 94-A there were an excess of the number of voters who
actually voted. The election returns shows that there were 245 voters who
actually voted yet there were 27 excess ballots found in the ballot box, but
the number of voters in the precinct is only 272, meaning there was a one
hundred per cent (100%) turn-out of voters for those precinct but the
election return states that there were only 245 who actually voted.
In precinct 99-A, 100-A and 104-A there were also no entries on the data
of voters and ballots. Again the MBC should have at least called the
members of the BEI to complete the data in the election return and explain
why they failed to do the same. Me-sm
In precinct 105-A it is obvious that there were discrepancies in the material
data in that the total number of registered voters in the precinct is 141
while the total number accordingly of the voters who actually voted is 121
but found out inside the ballot box were 144 valid ballots which obviously
in excess of three (3) from the total number of the registered voters for the
precinct.
But more than the above findings what is significant is that in Precincts 93-
A and 94-A there were erasures in the election return which accordingly
was made to reflect the correct votes received by petitioner and private
respondent. According to the Chairman of BEI, private respondent
received 96 votes while, petitioner received 4 votes instead of 97 yet the
election returns states that petitioner received only three votes instead of
four as claimed but (sic) the Chairman of the BEI. Such erasures manifest
(sic) on the election return puts the authenticity of the same in issue and
should have been excluded in the canvass.
While it is true that the Board of Canvassers is essentially a ministerial
body and has no power to pass upon questions of whether there are
illegal voters or other election frauds. (Dizon v. Provincial Board, 52 Phil
47; Sangki v. Comelec, 21 SCRA 1392), it is also true that in case of
patent irregularity in the election returns, such as patent erasures and
super-impositions in words and figures on the face of the returns
submitted to the board, it is imperative for the board to stop the canvass of
such returns so as to allow time for verification. A canvass and
proclamation made withstanding such patent defects in the returns which
may affect the result of the election, without awaiting remedies, is null and
void. (Purisima v. Salonga, 15 SCRA 704).
WHEREFORE, the Commission (Second Division) resolves to GIVE DUE
COURSE to the appeal and the eight (8) contested election returns are
hereby ordered excluded from the canvass for the position of the
municipal mayor of Sta. Rita, Pampanga.
The proclamation made by respondent MBC on May 14, 1998 proclaiming
private respondent as duly elected Mayor of Municipality of Sta. Rita,
Pampanga is herebySUSPENDED. S-l-x
Respondent MBC is hereby directed to reconvene and issue a new
certificate of canvass of votes excluding the election returns subject of this
appeal and on the basis of which proclaim the winning candidate for
Mayor of the Municipality of Sta. Rita, Pampanga.
SO ORDERED.
[6]

On July 3, 1998, private respondent Salalila filed a motion for reconsideration.
[7]

On November 19, 1998, the COMELEC en banc promulgated the questioned
Resolution reversing the findings of the Comelec Second Division. The decretal portion
of which states:
WHEREFORE, in view of the foregoing, the Resolution promulgated by
this Commission (Second Division) on 29 June 1998 is hereby reversed
and set aside. The suspension of the effects of the proclamation of the
respondent/appellee, ARTHUR L. SALALILA, is hereby lifted. His
proclamation as MAYOR of the municipality of Sta. Rita, Pampanga on 14
May 1998 is hereby confirmed.
SO ORDERED.
[8]

Hence, petitioner Ocampo filed the iinstant petition citing the grave abuse of discretion
committed by the COMELEC en banc in reversing the findings of the COMELEC
Second Division. A temporary restraining order was also prayed for to enjoin the effects
of private respondents Salalilas proclamation as municipal mayor.
On December 15, 1998, this Court issued a Temporary Restraining Order directing the
COMELEC to cease and desist from enforcing its Resolution, dated November 19, 1998
in SPC No. 98-056.
Meanwhile, on March 1, 1999, petitioner filed a separate petition before this Court to
cite private respondent Salalila for contempt. This was docketed as G.R. No. 137470. In
this petition, petitioner claimed that despite the issuance of a Temporary Restraining
Order by this Court on December 15, 1998 in G.R. No. 136282, private respondent
Salalila continued to act as the Mayor of Sta. Rita, Pampanga. Es-mso
Petitioner would like to impress upon this Court that the returns in the subject precincts
(25 votes with zero 0 votes in three precincts, as against private respondents Salalilas
1,333 votes) were statistically improbable considering that he was a re-electionist and
with assigned watchers therein. Although he admits that the precincts were private
respondent Salalilas bailiwick, precedence dictates that every election document
coming from a candidates bailiwick must be carefully scrutinized.
Petitioner claims that the election returns did not contain data as required in Section 212
of the Omnibus Election Code which reads:
The returns shall also show the date of the election, the polling place, the
barangay and the city or municipality in which it was held, the total number
of ballots found in the compartment for valid ballots, the total number of
valid ballots withdrawn from the compartment for spoiled ballots because
they were erroneously placed therein, the total number of excess ballots,
the total number of marked or void ballots, and the total number of votes
obtained by each candidate, writing out the said number in words and
figures and, at the end thereof, the board of election inspectors shall
certify that the contents are correct. The returns shall be accomplished in
a single sheet of paper, but if this is not possible, additional sheets may be
used which shall be prepared in the same manner as the first sheet and
likewise certified by the board of election inspectors.
x x x
Petitioner further contends that these data on voters and ballots are just as important as
the data on votes credited to the candidate on the same election returns. The absence
such data without any explanation or correction on the part of the Board of Election
Inspectors who prepared those election documents renders them invalid. Violations of
Sections 234 and 235 relating to material defects in the election returns and tampered
or falsified election returns are considered election offenses under Section 262 of the
Omnibus Election Code.
[9]

The pertinent provisions read as follows: Sc-slx
Sec. 234. Material defects in the election returns.- If it should clearly
appear that some requisites in form or data had been omitted in the
election returns, the board of canvassers shall call for all the members of
the board of election inspectors concerned by the most expeditious
means, for the same board to effect the correction. Provided, That in case
of the omission in the election returns of the name of any candidate and/or
his corresponding votes, the board of canvassers shall require the board
of election inspectors concerned to complete the necessary data in the
election returns and affix therein their initials: Provided, further, That if the
votes omitted in the returns cannot be ascertained by other means except
by recounting the ballots, the Commission, after satisfying itself that the
identity and integrity of the ballot box have not been violated, shall order
the board of election inspectors to open the ballot box, and, also after
satisfying itself that the integrity of the ballots therein has been duly
preserved, order the board of election inspectors to count the votes for the
candidate whose votes have been omitted with notice thereof to all
candidates for the position involved and thereafter complete the returns.
The right of a candidate to avail of this provision shall not be lost or
affected by the fact that an election protest is subsequently filed by any of
the candidates.
Sec. 235. When election returns appear to be tampered with or falsified. -
If the election returns submitted to the board of canvassers appear to be
tampered with, altered or falsified after they have left the hands of the
board of election inspectors, or otherwise not authentic, or were prepared
by the board of election inspectors, the board of canvassers shall use the
other copies of said election returns and, if necessary, the copy inside the
ballot box which upon previous authority given by the Commission may be
retrieved in accordance with Section 220 hereof. If the other copies of the
returns are likewise tampered with, altered, falsified, not authentic,
prepared under duress, force, intimidation, or prepared by persons other
than the members of the board of election inspectors, the board of
canvassers or any candidate affected shall bring the matter to the
attention of the Commission. The Commission shall then, after giving
notice to all candidates concerned and after satisfying itself that nothing in
the ballot box indicate that its identity and integrity have been violated,
order the opening of the ballot box and, likewise after satisfying itself that
the integrity of the ballots therein has been duly preserved shall order the
board of election inspectors to recount the votes of the candidates
affected and prepare a new return which shall then be used by the board
of canvassers as basis of the canvass. (Sec. 173, 1978 EC). Sl-xsc
The petition must fail.
It must be borne in mind that we are persuaded strongly by the principle that the
findings of facts of administrative bodies charged with their specific field of expertise,
are afforded great weight by the courts, and in the absence of substantial showing that
such findings are made from an erroneous estimation of the evidence presented, they
are conclusive, and in the interest of stability of the governmental structure, should not
be disturbed.
[10]
The COMELEC, as an administrative agency and a specialized
constitutional body charged with the enforcement and administration of all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum, and
recall, has more than enough expertise in its field that its findings or conclusions are
generally respected and even given finality.
[11]
We do not find the instant case an
exception to this avowed rule.
In order to allay any suspicion of gravely abusing its discretion, the COMELEC made a
careful examination of the contested election returns. "To check and double check" if it
were true that the contested election returns were tampered with, altered or falsified, the
COMELEC en banc examined two separate copies of the election returns: (1) the copy
for the Municipal Board of Canvassers and (2) the COMELEC copy. Thus, the following
findings were made:
In the election returns for precinct 88-A-1, only formal defects are present,
there being no entries on the requisite data as to the number of registered
voters in the precinct, the actual number of votes cast and the number of
valid votes cast. However, the number of votes credited to the petitioner
and private respondent and the taras therein do not contain any erasure or
alteration as to bring the number of votes obtained by the petitioner and
private respondent within the realm of controversy. We, therefore, rule
for the inclusion of the election returns for this precinct. Sl-xm-is
The election returns for precinct 89-A-1 was ruled excluded by the Second
Division for several reasons. It was alleged (1) that there is a discrepancy
in the total number of valid votes cast and number of votes received by
private respondent Salalila; (2) that two (2) members of the Board of
election Inspectors did not affix their thumb mark in the questioned
election returns; and (3) that the elections returns states that there were
197 voters who actually voted while there were 22 excess ballots which
means that the number of voters who actually voted will be 219 in excess
of the 215 total number of registered voters in the precinct. An
examination of this election returns shows that all pages of the election
returns have been signed and thumb marked by the chairman and
members of the board of election inspectors except on page 3 where the
members did not thumb mark but the chairman did and on page 4 where
the chairman had no thumb mark but the members did have. This is a
mere oversight and it did not vitiate the validity of the votes credited to
each candidate nor did it destroy the integrity of the election return. A
perusal of the election returns for the mayoral candidates shows that
Salalila got one hundred four (104) votes while petitioner/appellant
Ocampo received zero (0). The fact that private respondent/appellee got
almost all the votes cast in this precinct is not necessarily proof of fraud for
there is nothing in the returns to show that it was tampered or altered. The
election returns itself reflects with clarity the votes obtained by Salalila and
Ocampo. It bears no sign whatsoever of tampering or alteration.
Moreover, contrary to the findings of the Second Division, the election
returns for this precinct did not state that there were 197 voters who
actually voted and that there were 22 excess ballots but rather, the
number of voters who actually voted is only 105 out of 115 total registered
voters in this precinct and the excess ballots is zero. We, therefore, rule
for the inclusion in the canvass of the election returns for this
precinct. M-issdaa
In the election returns for precinct 92-A, it was ruled excluded on the
ground that one (1) vote is missing therein, 153 voters having actually
voted and private respondent Salalila received 152 votes while petitioner
got zero (0). We overrule. The fact that Salalila got one hundred fifty two
(152) votes out of 153 voters who actually voted while Ocampo got zero
(0), does not necessarily mean that one (1) vote is missing. One (1) voter
in this precinct might have desisted from casting his vote for the mayor or
may have voted but the vote was not credited because it was stray or just
illegible. But the missing vote cannot be a ground for exclusion. Hence,
We rule for the inclusion of the election returns in the canvass.
In the election returns for clustered precincts 93-A and 94-A, an
examination of the returns shows that it is complete with entries of the
requisite data and that it had been signed by all the members of the board
of election inspectors. It also discloses that it is not true there was one
hundred percent (100%) turn-out of voters for this clustered precincts as
there were only two hundred forty five (245) voters who actually voted out
of the two hundred seventy two (272) registered voters. Hence, there is
nothing mysterious about the 27 excess but unused ballots found in the
ballot box. Similarly, we saw no erasures or alteration on the face of the
election returns, specifically the portion showing the number of votes. If at
all, there were superimposition made on the faintly written names of the
candidates to make the same easily readable. Such superimposition on
the names of candidates did not in any manner render the number of
votes garnered by the candidates subject to doubt as to bring the same
within the realm of controversy. Moreover, We find intriguing the finding
that chairman of the board of election inspectors claimed that private
respondent received 96 votes instead of 97 while petitioner received 4
votes yet the election returns states that petitioner received only three
votes instead of four. We find nothing in the records to support it. The
election returns itself shows that Salalia obtained two hundred thirty six
(236) votes while Ocampo got seven (7) votes. We, therefore, rule for
the inclusion in the canvass of said election returns.
In the election returns for clustered precincts 99-A and 100-A, and precinct
104-A, only formal defects are present, there being no entries of the
requisite data as to the number of registered voters in the precincts, the
actual number of votes cast, and the number of valid votes cast. However,
the number of votes credited to the petitioner/appellant and
respondent/appellee as reflected by the taras show correctness of count.
There were no erasures or alteration as to put the same into question. We
therefore, likewise rule for the inclusion in the canvass of this
election returns. Sd-aad-sc
In the election returns for precinct 105-A, it was ruled excluded because of
alleged discrepancies in the material data in that the total number of
registered voters in the precinct is 141 while the total number of the voters
who actually voted is 121 but found out inside the ballot box were 144
valid ballots which is excess of three (3) from the total number of
registered voters for the precinct. The three (3) "excess" ballots are in
reality not excess ballots. The precinct ratio on ballot distribution adopted
by the Commission in the 11 May 1998 elections is one (1) ballot for every
registered voter plus four (4) ballots. At any rate, an examination of the
questioned election returns shows that the defects are only formal and not
material as to warrant the outright exclusion from canvass of the
questioned election returns. The number of votes credited to
petitioner/appellant who got three (3) votes and private
respondent/appellee who received one hundred fifteen (15) votes was
undisturbed and does not bear any sign of alteration as to put the result of
the election into question.We, therefore, likewise rule for the inclusion
in the canvass of the election returns for this precinct.
[12]

Notably, the COMELEC en banc merely sustained the findings and rulings of the
Municipal Board of Canvassers who, at the first instance, found the contested election
returns to be genuine and authentic and the objections to be without merit. Moreover,
the COMELEC en banc did not meet any oppositions or dissent from any of the
Commissioners who have rendered the resolution
[13]
reversing the decision of the MBC.
This only goes to show that there was a painstaking review and examination of the
returns by the COMELEC en banc which does not warrant a different conclusion from
this Court. Rtc-spped
That the election returns were obviously manufactured must be evident from the face of
said documents.
[14]
In the absence of a strong evidence establishing spuriousness of the
returns, the basic rule that the election returns shall be accorded prima facie status
as bona fide reports of the results of the count of the votes for canvassing and
proclamation purposes must perforce prevail.
[15]
The COMELEC en banc did not find any
signs of alterations or tampering on the election returns nor did the petitioner present
any hard evidence of such irregularity. The only thing which we surmise came too close
to such a change was the written superimposition made on the family names of the
candidates in the election returns of the clustered precincts 93-A and 94-A. This was
certainly not an alteration or tampering since the COMELEC en banc found that such
superimposition was necessarily done in order to make the names readable.
Nonetheless, petitioner failed to deduce evidence to the contrary. The other thing which
petitioner considered the returns to be "obviously manufactured" was the fact that
petitioner garnered zero (0) votes in three (3) precincts which was allegedly statistically
improbable. To this claim, the case of Sanki v. COMELEC
[16]
is worth reiterating:
x x x Indeed, the bare fact that candidates for public office had received
zero votes is not enough to make the returns statistically improbable. In
the Lagumbay decision itself, Chief Justice Cesar Bengzon, who delivered
the majority opinion, did not say that when one candidate receives nothing
in an election return; such a circumstance alone will make said return
statistically improbable. x x x
x x x
x x x we can not, with certainty, conclude form the facts before us that the
returns questioned were "not true returns of legal votes actually cast, but
simply manufactured evidences of an attempt to defeat the popular
will. Sc-lex
To be sure, it cannot be said here - as this Court did intimate
in Lagumbay - that respondent board of canvassers may legally deny
"prima facie recognition to such returns on the ground that they are
manifestly fabricated or falsified;" or that "the fraud is so palpable from the
return itself (res ipsa loquitur - the thing speaks for itself)", such that "there
is no reason to accept and give it prima facie value."
The factual background of this case suggests that we should not unduly
expand the reach of the statistically improbable doctrine carved out of the
facts obtaining in Lagumbay. Rather, we should say that respondent board
of canvassers - sustained by Comelec - in refusing to reject canvass of the
returns from the disputed precincts, properly performed the functions
allocated to it by law. It did well in not overstepping its authority. x x x
Anent the objection as to the omitted data in the election returns, a close reading of
Section 234 of the Omnibus Election Code shows that nothing in said provision provides
for the exclusion of the election returns.
Moreover, such omitted data are merely formal defects and not so material as to affect
the votes the candidates obtained in the election. We find the case of Baterina vs.
Commission on Elections
[17]
similar to the case at bar, where the Court elucidated that:
[T]he grounds raised by petitioners for the exclusion of the election returns
from the canvassing, as stated in their "Appeal Memorandum", before the
COMELEC (Rollo, p. 92), refer to the failure to close the entries with the
signatures of the election inspectors; lack of inner and outer paper seals;
canvassing by the BOARD of copies not intended for it; lack of time and
date of receipt by the BOARD of election returns; lack of signatures of
petitioners watchers; and lack of authority of the person receiving the
election returns. Scmis
While the aforesaid grounds may, indeed, involve a violation of the rules
governing the preparation and delivery of elections returns for canvassing,
they do not necessarily affect the authenticity and genuineness of the
subject election returns as to warrant their exclusion from the canvassing.
The grounds for objection to the election returns made by petitioner are
clearly defects in form insufficient to support a conclusion that the election
returns were tampered with or spurious. "A conclusion that an election
return is obviously manufactured or false and consequently should be
disregarded in the canvass must be approached with extreme caution and
only upon the most convincing proof. x x x
For as long as the election returns which on their face appear regular and wanting of
any physical signs of tampering, alteration or other similar vice, such election returns
cannot just be unjustifiably excluded. To look beyond or behind these returns is not a
proper issue in a pre-proclamation controversy as in the case at bar.
[18]

WHEREFORE, the petition for certiorari in G.R. No. 136282 is hereby DISMISSED for
its failure to show grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of the Commission on Elections (COMELEC) in rendering the assailed
Resolution, dated November 19, 1998. G.R. No. 133470 is, likewise, DISMISSED. The
Temporary Restraining Order issued on December 15, 1998 is hereby LIFTED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Mendoza, Panganiban, Quisumbing,
Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Pardo, J., no part. 6/2/00 2:16 PM



[1]
Rollo, p. 7.
[2]
Id., at 27-28.
[3]
Id., at 28.
[4]
Id., at 69.
[5]
Id., at 49-66.
[6]
Id., at 44-45.
[7]
Id., at 99-112.
[8]
Id., at 38.
[9]
Id., at 14.
[10]
Malonzo v. COMELEC, 269 SCRA 380 (1997)
[11]
Grego v. COMELEC, 274 SCRA 481 (1997)
[12]
Rollo, pp. 32-35.
[13]
Justice Pardo was appointed to the Supreme Court.
[14]
Dipatuan v. COMELEC, 185 SCRA 86 (1990)
[15]
Malalam v. COMELEC, 271 SCRA 733 (1997)
[16]
21 SCRA 1392 (1967)
[17]
205 SCRA 1 (1992)
[18]
Salih vs. COMELEC, 279 SCRA 19 (1997)
EN BANC


IMELDA Q. DIMAPORO,
Petitioner,








- versus -








COMMISSION ON ELECTIONS
and VICENTE BELMONTE,

G.R. No. 179285

Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES, and
LEONARDO-DE CASTRO, JJ.

Promulgated:
Respondents.



February 11, 2008
x-----------------------------------------------------------------------------------x

R E S O L U T I O N


REYES, R.T., J .:

UNDER consideration is a petition for certiorari via Rule 65 of the 1997
Rules of Civil Procedure assailing the (1) Resolution
[1]
of the Commission on
Elections (COMELEC) Second Division dated July 10, 2007 and (2)
Resolution
[2]
of the COMELEC En Banc promulgated on September 5, 2007.

The antecedent facts:

Petitioner Imelda Dimaporo and private respondent Vicente Belmonte were
both candidates for Representative of the 1st Congressional District of Lanao del
Norte during the May 14, 2007 elections.

The said legislative district is composed of seven (7) towns and one (1) city,
namely: the Municipalities of Linamon, Kauswagan, Bacolod, Maigo,
Kolambugan, Tubod, Baroy and the City of Iligan.

On May 22, 2007, the Provincial Board of Canvassers
[3]
(PBOC) completed
the canvass of the Certificates of Canvass (COCs) for the City of Iligan and four
(4) of the municipalities, namely, Linamon, Kolambugan, Tubod and Baroy. Upon
adjournment on May 22, 2007, the said PBOC issued a Certification showing
respondent Belmonte in the lead, with 52,783 votes, followed by candidate
Badelles with 39,315 votes, and petitioner Dimaporo in third place with only
35,150 votes, viz.:

OFFICIAL PARTIAL TOTAL VOTES
FOR MEMBER, HOUSE OF REPRESENTATIVES
BASED ON THE CANVASS BY THE PBOC
OF THE COCs OF FOUR (4) MUNICIPALITIES OF 1st
DISTRICT AND OF THE COC OF ILIGAN CITY
(Votes for Candidates Leo M. Zaragoza and Uriel G. Borja omitted)

MUNICIPALITY BELMONTE BADELLES DIMAPORO
Linamon 2,395 1,737 1,835
Kolambugan 1,530 4,287 3,731
Tubod 2,084 2,607 9,904
Baroy 1,849 3,275 4,195
Iligan City 44,925 27,409 15,485
PARTIAL SUB-TOTAL 52,783 39,315 35,150



Sometime in the evening of May 19, 2007, the ballot boxes containing the
COCs of Kauswagan, Bacolod and Maigo were allegedly forcibly opened, their
padlocks destroyed and the envelopes containing the COCs and the Statement of
Votes (SOV) opened and violated. When the PBOC was about to resume the
canvassing at around 9:00 a.m. the succeeding day, the forced opening of the ballot
boxes was discovered prompting the PBOC to suspend the canvass.

On May 22, 2007, the Commissioner-in-Charge of CARAGA Region,
Nicodemo Ferrer, issued a Resolution ordering that the canvassing of the ballots
contained in the tampered ballot boxes of Kauswagan, Maigo and Bacolod be
suspended until after the National Bureau of Investigation (NBI) submits its
findings to the Commission.

On May 24, 2007, the NBI submitted its report. It found as follows:

In our assessment and observation, the culprit(s) managed to enter the
room of the Vice-Governor [Irma Umpa Ali] which he/she used as a staging and
hiding place while persons are still allowed to enter the building during the
canvassing. On the night of May 19, 2007 the culprit(s) hide (sic) in the said room
and waited until there were no persons allowed inside the building except the
provincial guard on duty who was manning the ground floor at the area near the
entrance door. The culprit(s) then entered the Session Hall by using some hard ID
Card or any similar object which was inserted in between the door and door-lock,
and once inside specifically destroyed the padlocks of the ballot boxes for the
Municipalities of Bacolod, Maigo and Kauswagan. x x x.

On May 24, 2007, Atty. Dennis L. Ausan, Regional Director, Region X,
issued a Very Urgent Memorandum addressed to the COMELEC En Banc,
enclosing the NBI report, with the following recommendation:

[T]hat the Commission En Banc comes out with an order directing the
Provincial Board of Canvassers of Lanao del Norte to immediately reconvene
solely for the purpose of retrieving the three envelopes supposedly containing the
COCs from the said three (3) municipalities, to open the same in the presence of
all watchers, counsels and representatives of all contending parties and the
accredited Citizens Arm of the Commission and right there and then to turn over
the same to the representative of the NBI for technical examination by their
questioned documents expert.

Further, it is requested that it must also be incorporated in the En Bancs
order the directive for the PBOC to turnover to the NBI the copies of the COC of
the three (3) municipalities intended for the Commission and the Election Officer
for purposes of comparison with that retrieved from the questioned ballot box.

Thereafter, on May 25, 2007, COMELEC issued Resolution No. 8073
adopting in part the recommendation of Atty. Ausan directing the PBOC of Lanao
del Norte toimmediately reconvene solely for the purpose of retrieving the three
envelopes supposedly containing the COCs from the municipalities of Kauswagan,
Bacolod and Maigoand to open the same in the presence of all watchers,
counsels, and representatives of all contending parties and the accredited Citizens
Arm of the Commission and right there and then to direct the representatives of the
dominant majority and minority parties to present their respective copies of the
COCs for comparison with the COCs intended for the COMELEC and with the
COCs inside the envelope just opened.

The COMELEC further resolved that when discrepancies show signs of
tampering and falsifying, the PBOC is to immediately turnover to the NBI the
copies of the COCs of said three (3) municipalities intended for the Commission
and the Election Officer for purposes of comparison with those retrieved from the
questioned ballot boxes.

On May 30, 2007, Commissioner Nicodemo Ferrer issued his Memorandum
relieving the PBOC of its functions and constituting a special provincial board of
canvassers (SPBOC).
[4]
He further ordered as follows:

The previous En Banc Resolution No. 8073 promulgated on May 25,
2007 is hereby amended to state that upon the opening of the envelopes
containing the COCs found inside the tampered ballot boxes for the towns of
Kauswagan, Maigo and Bacolod, the same shall at once be canvassed in the
presence of the candidates and/or their representatives, taking note of whatever
objections that they may interpose on any of the entries in said COCs.

However, no canvassing took place on May 30, 2007 in view of the human
barricade of some 100 persons who effectively blocked the entrance to
the Sangguniang Panlalawigan building.

On May 31, 2007, Commissioner Nicodemo Ferrer issued another
Memorandum constituting another SPBOC for Lanao del Norte composed of Atty.
Lordino Salvana, as chairman, with Atty. Anna Ma. Dulce Cuevas-Banzon and
Atty. Gina Luna Zayas, as members. In said Memorandum, Ferrer gave the
following instructions:

Considering the heightened controversies occasioned by the admitted
tampering of the three (3) ballot boxes containing the COCs of said towns to be
canvassed, you are directed to refrain from proclaiming any candidate until
ordered by the Commission through the undersigned Commissioner-in-Charge of
Region X. Appeal, if any, should be immediately elevated to the Commission for
evaluation.

This amends the urgent memorandum addressed to Atty. Joseph Hamilton
Cuevas dated May 30, 2007.

The chairman and members of the new SPBOC arrived at the venue of the
canvassing at Tubod, Lanao del Norte at 10:15 p.m. on May 31, 2007. However,
the human barricade which blocked the entrance to the Sangguniang
Panlalawigan building had now swelled into a horde of some 300 persons. As a
consequence, the canvassing still did not take place.

On June 1, 2007, the new SPBOC convened and opened the ballot boxes for
the towns of Kauswagan, Maigo and Bacolod. As the SPBOC proceeded with the
canvass, private respondent Belmonte objected to the inclusion of the COCs of the
concerned municipalities on the following grounds:

1.) There were manifest errors in the COCs;



2.) The numbers of votes in words and in figures opposite the names of
appellant and appellees Badelles and Dimaporo contain intercalations done
through the application of a white correction fluid (SnoPake), which
intercalations are visible to the naked eye;

3.) The COCs were obviously manufactured;

4.) The COCs were tampered or falsified;

5.) The intercalations in the COCs were not made or prepared by the Municipal
Board of Canvassers (MBOC) concerned; and

6.) The SOVs likewise contain intercalations done through SnoPake resulting
in an altered number of votes for appellant and respondents.

The SPBOC denied Belmontes objections due to lack of jurisdiction.

On that same day, June 1, 2007, Belmonte filed his verified notice of appeal
before the SPBOC. On June 5, 2007, Belmonte filed his appeal with appeal
memorandum. OnJune 7, 2007, Belmonte filed with the COMELEC his
alternative petition to correct manifest errors.

In the assailed Resolution of July 10, 2007, the Second Division of the
COMELEC granted Belmontes petition. While conceding that it has no
jurisdiction to hear and decide pre-proclamation cases against members of the
house, it took cognizance of the petition as one for the correction of manifest
errors, hence, within its jurisdiction as per the last sentence of Section 15 of
Republic Act (R.A.) No. 7166. The law provides:

Sec. 15. Pre-proclamation Cases in Elections for President, Vice-
President, Senator, and Member of the House of Representatives. For purpose
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 election returns
or the certificates of canvass, as the case may be, except as provided for in Sec. 30
hereof. 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. (Underscoring supplied)

The dispositive portion of the challenged Resolution reads:

WHEREFORE, premises considered, the Commission (Second Division)
resolves to GRANT the Petition and the questioned Rulings of the respondent
MBC is hereby REVERSED AND SET ASIDE. The questioned COCs are
hereby ordered excluded and should not be canvassed.

The Board of Canvassers is hereby directed to RECONVENE here in
Manila (for security purposes) and issue a new certificate of canvass of votes
excluding the election returns subject of this appeal and substituting the proper
entries as are evident in the authentic copies of the election returns related to the
subject COCs. The winning candidate who garners the most number of votes in
accordance with our observation shall after proper canvass be proclaimed by the
Board of Canvassers.

SO ORDERED.

On July 13, 2007, Dimaporo moved for a reconsideration. This was denied
in the COMELECs equally assailed En Banc Resolution of September 5,
2007. The second Resolution prompted Dimaporo to file, on September 7, 2007,
the present petition for certiorari with prayer for the issuance of a temporary
restraining order and/or writ of preliminary injunction questioning the jurisdiction
of the COMELEC over the case.

In her petition, Dimaporo claims that the subject matter involved does not
pertain to manifest errors but to the preparation, transmission, receipt, custody
and appreciation of certificates of canvass, a matter outside the realm of the
COMELECs jurisdiction when a congressional seat is involved. She cites Section
15 of R.A. No. 7166.

Dimaporo prays as follows:


1. upon filing of this petition, a temporary restraining order be issued by the
Honorable Court enjoining the implementation of the questioned Resolution
of July 10, 2007 of the COMELEC (Second Division) and the COMELEC En
Banc Resolution promulgated on September 5, 2007 affirming the Second
Division upon such bond as may be required by the Honorable Court;

2. after due hearing, the questioned Resolution of July 10, 2007 of the
COMELEC (Second Resolution) and the COMELEC En Banc Resolution
promulgated on September 5, 2007 be both reversed and set aside;

3. petitioner be ordered proclaimed as the duly elected Representative of the
First Congressional District of the Province of Lanao del Norte in the May
14, 2007 elections;

4. for such other relief as may be deemed just and equitable under the
premises.
[5]


On September 13, 2007, Dimaporo filed an urgent motion reiterating the
prayer for the issuance of a temporary restraining order. This was followed by the
filing of a manifestation and motion for the issuance of a status quo ante order
and/or temporary restraining order on September 25, 2007. On October 1, 2007,
Dimaporo, again, filed a motion to maintain the status quo at the time of the filing
of the petition.

On October 2, 2007, the Court En Banc, acting upon Dimaporos motion for
the issuance of a status quo ante order and/or temporary restraining order, issued
the following Resolution:

Acting on the Manifestation and Motion for the Issuance of a Status Quo
Ante Order and/or Temporary Restraining Order dated September 12, 2007 filed
by counsel for petitioner, the Court Resolved to require public respondent
Commission on Elections to observe the STATUS QUO prevailing at the time of
the filing of the petition and refrain from implementing the resolutions of July 10,
2007and September 5, 2007 of the COMELEC Second Division and En
Banc, respectively.

The Court further Resolved to NOTE the Motion to Maintain the Status
Quo at the Time of the Filing of the Petition, dated October 1, 2007, filed by
counsel for petitioner.

The succeeding day, October 3, 2007, a status quo ante order was issued to
the COMELEC stating:

NOW, THEREFORE, effective immediately and continuing until further
orders from this Court, You, Respondent COMELEC, your agents,
representatives, or persons acting in your place and stead, are hereby required to
observe the STATUS QUO that is prevailing at the time of the filing of the
petition.

On October 8, 2007, private respondent Belmonte filed his comment in
which he brought to Our attention that on September 26, 2007, even before the
issuance of the status quo ante order of the Court, he had already been proclaimed
by the PBOC as the duly elected Member of the House of Representatives of the
First Congressional District of Lanao del Norte. On that very same day, he had
taken his oath before Speaker of the House Jose de Venecia, Jr. and assumed his
duties accordingly.

In light of this development, jurisdiction over this case has already been
transferred to the House of Representatives Electoral Tribunal (HRET). When
there has been a proclamation and a defeated candidate claims to be the winner, it
is the Electoral Tribunal already that has jurisdiction over the case.
[6]


In Lazatin v. Commission on Elections,
[7]
the Court had this to say:

The petition is impressed with merit because petitioner has been proclaimed
winner of the Congressional elections in the first district of Pampanga, has taken his oath
of office as such, and assumed his duties as Congressman. For this Court to take
cognizance of the electoral protest against him would be to usurp the function of the
House Electoral Tribunal. The alleged invalidity of the proclamation (which had been
previously ordered by the COMELEC itself) despite alleged irregularities in connection
therewith, and despite the pendency of protests of the rival candidates, is a matter that is
also addressed, considering the premises, to the sound judgment of the Electoral
Tribunal. (Emphasis supplied)

This was reiterated in Aggabao v. Commission on Elections:
[8]


The HRET has sole and exclusive jurisdiction overall contests relative to the
election, returns, and qualifications of members of the House of Representatives. Thus,
once a winning candidate has been proclaimed, taken his oath, and assumed office as a
Member of the House of Representatives, COMELECs jurisdiction over election
contests relating to his election, returns, and qualifications ends, and the HRETs own
jurisdiction begins.

The COMELEC was not amiss in quickly deciding Belmontes petition to
correct manifest errors then proclaiming him the winner. Election cases are
imbued with public interest.
[9]
They involve not only the adjudication of the private
interest of rival candidates but also the paramount need of dispelling the
uncertainty which beclouds the real choice of the electorate with respect to who
shall discharge the prerogatives of the offices within their gift.
[10]
It has always
been the policy of the election law that pre-proclamation controversies should be
summarily decided, consistent with the laws desire that the canvass and
proclamation be delayed as little as possible.
[11]


Considering that at the time of proclamation, there had yet been no status quo
ante order or temporary restraining order from the court, such proclamation is valid
and, as such, it has vested the HRET with jurisdiction over the case as Belmonte
has, with the taking of his oath, already become one of their own.

Hence, should Dimaporo wish to pursue further her claim to the
congressional seat, the filing of an election protest before the HRET would be the
appropriate course of action.

WHEREFORE, the petition is DISMISSED.


SO ORDERED.



RUBEN T. REYES
Associate Justice




WE CONCUR:




REYNATO S. PUNO
Chief Justice




LEONARDO A. QUISUMBING CONSUELO YNARES-SANTIAGO
Associate Justice Associate Justice




ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO
Associate Justice Associate Justice



MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
Associate Justice Associate Justice




CONCHITA CARPIO MORALES ADOLFO S. AZCUNA
Associate Justice Associate Justice




DANTE O. TINGA MINITA V. CHICO-NAZARIO
Associate Justice Associate Justice




PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
Associate Justice Associate Justice




TERESITA J. LEONARDO-DE CASTRO
Associate Justice





C E R T I F I C A T I O N


Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Resolution had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.




REYNATO S. PUNO
Chief Justice



[1]
Rollo, pp. 31-49.
[2]
Id. at 64-71.
[3]
Composed of the Provincial Election Supervisor, Atty. Joseph Hamilton M. Cuevas, chairman; Chief Provincial
Prosecutor Atty. Macadatar D. Marsangca, vice-chairman; and Maria Luisa B. Mutia, Ph.D., member.
[4]
Composed of Atty. Carlito L. Ravelo, as the new chairman, with Atty. Anna Ma. Dulce Cuevas-Banzon and
Atty. Aleli Dayo-Ramirez, as members.
[5]
Rollo, p. 25.
[6]
CONSTITUTION (1987), Art. VI, Sec. 17.
[7]
G.R. No. L-80007, January 25, 1988, 157 SCRA 337, 338.
[8]
G.R. No. 163756, January 26, 2005, 449 SCRA 400, 404-405.
[9]
Garcia v. Court of Appeals, G.R. No. 31775, December 28, 1970, 36 SCRA 582.
[10]
Vda. De Mesa v. Mencias, G.R. No. L-24583, October 29, 1966, 18 SCRA 533, 538.
[11]
Sanchez v. Commission on Elections, G.R. No. L-78461, August 12, 1987, 153 SCRA 67, 75.


EN BANC


ROMMEL G. MUOZ, G.R. No. 170678
Petitioner,
Present:

Panganiban, C.J.,
Puno,
Quisumbing,
Ynares-Santiago,
Sandoval-Gutierrez,
- versus - Carpio,
Austria-Martinez,
Corona,
Carpio-Morales,
Callejo, Sr.,
Azcuna,
Tinga,
Chico-Nazario,
Garcia, and
Velasco, Jr., JJ.
COMMISSION ON ELECTIONS,
CARLOS IRWIN G. BALDO, JR., Promulgated:
Respondents.
July 17, 2006
x ---------------------------------------------------------------------------------------- x

DECI SI ON


YNARES-SANTIAGO, J.:


This is a petition for certiorari and prohibition with prayer for the issuance of
a writ of preliminary injunction and/or temporary restraining order filed by
petitioner Rommel G. Muoz assailing the Resolution
[1]
dated December 15, 2005
of the Commission on Elections (COMELEC) En Banc in SPC No. 04-124 which
affirmed the Resolution
[2]
dated October 25, 2004 of the COMELEC First Division
granting the petition of private respondent Carlos Irwin G. Baldo, Jr. to annul
petitioners proclamation as mayor of Camalig, Albay.

The facts of the case are as follows:

Petitioner and private respondent were candidates for mayor of Camalig,
Albay in the May 10, 2004 election.
[3]
At 6:00 oclock in the evening of May 10,
2004, the Municipal Board of Canvassers (MBC) convened and canvassed the
election returns (ER).
[4]


On May 11, 2004, the lawyers of private respondent objected to the
inclusion of the 26 ERs from various precincts based on the following grounds: 1)
eight ERs lack inner seal; 2) seven ERs lack material data; 3) one ER lack
signatures; 4) four ERs lack signatures and thumbmarks of the members of the
Board of Election Inspectors on the envelope containing them; 5) one ER lack the
name and signature of the poll clerk on the second page thereof; 6) one ER lack
the number of votes in words and figures; and 7) four ERs were allegedly
prepared under intimidation.
[5]


On May 13, 2004, the MBC denied the objections and ruled to include
the objected ERs in the canvass. Private respondent appealed the said ruling
to the COMELEC onMay 18, 2004 and was docketed as SPC No. 04-087 and
raffled to the COMELEC First Division.
[6]


Despite the pendency of the appeal, petitioner was proclaimed on May 19,
2004 by the MBC as the winning candidate for mayor of Camalig, Albay.
[7]


On May 21, 2004, private respondent filed with the COMELEC a petition to
annul the proclamation of the petitioner for being premature and illegal. The
case was docketed as SPC No. 04-124 and raffled to the COMELEC First Division.
[8]


On October 25, 2004, the COMELEC First Division rendered a Resolution in
SPC No. 04-124 granting the petition to annul the proclamation. The dispositive
portion thereof reads:

WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) hereby
GRANTS the Petition. The proclamation of x x x ROMMEL MUOZ as winning candidate
for mayor of Camalig, Albay is ANNULLED for having been made in an irregular
proceeding and for being precipitate and premature.

SO ORDERED.
[9]


Petitioners motion for reconsideration
[10]
was denied for lack of merit by
the COMELEC En Banc in a Resolution dated December 15, 2005, thus:

WHEREFORE, premises considered, the Commission En Banc hereby DENIES the
Motion for Reconsideration filed by x x x Muoz for lack of merit. Accordingly, the
ANNULMENT and SETTING ASIDE, by the First Division, of the proclamation of x x x
ROMMEL MUOZ as the duly elected Mayor is hereby AFFIRMED.

The Regional Election Director of Region V, Atty. Zacarias C. Zaragoza, Jr., is
hereby DIRECTED to constitute a new Municipal Board of Canvassers from among the
Election Officers in the Region.

Accordingly, the new Municipal Board of Canvassers of Camalig, Albay is hereby
DIRECTED to:

a) RECONVENE, and after due notice to all parties/candidates
concerned,

b) RE-CANVASS all the election returns of Camalig, Albay, and on
the basis thereof,

c) PREPARE a new Certificate of Canvass, and forthwith

d) PROCLAIM the winning candidates for Mayoralty position.

SO ORDERED.
[11]


Hence, petitioner files the instant petition for certiorari and prohibition with
prayer for the issuance of a writ of preliminary injunction and/or temporary
restraining order.

On January 17, 2006, the Court issued a temporary restraining order
effective immediately and ordered the COMELEC to cease and desist from
implementing and enforcing the December 15, 2005 Resolution in SPC No. 04-
124.
[12]


Petitioner relies on the following grounds in support of his petition:

I
THE PUBLIC [RESPONDENT] COMELEC COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT ISSUED THE ASSAILED RESOLUTION DENYING FOR LACK
OF MERIT PETITIONERS MOTION FOR RECONSIDERATION OF THE 25
OCTOBER [2004] RESOLUTION OF THE PUBLIC RESPONDENTS FIRST
DIVISION, FOR BEING CONTRARY TO LAW, RULES AND WELL-
SETTLED JURISPRUDENCE;

II
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT ISSUED THE ASSAILED RESOLUTION ANNULLING AND
SETTING ASIDE THE PROCLAMATION OF PETITIONER AS DULY
ELECTED MAYOR OF CAMALIG, ALBAY WITHOUT FIRST RESOLVING
THE PENDING APPEAL FIRST INITIATED, SPC 04-87;

III
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED THE ASSAILED RESOLUTION
DIRECTING THE NEW MUNICIPAL BOARD OF CANVASSERS OF CAMALIG, ALBAY, TO
RECONVENE AND RE-CANVASS ALL ELECTION RESULTS OF CAMALIG, ALBAY, FOR BEING
CONTRARY TO LAW.
[13]


The foregoing issues may be summarized into two: 1) whether or not the
COMELEC First Division committed grave abuse of discretion when it decided only
the Petition to Annul Proclamation despite the agreement of the parties to
consolidate private respondents appeal from the ruling of the MBC since both
cases were raffled to the same Division and the issue in the latter case was
connected to, if not determinative of, the merits of the former case; and 2)
whether or not the COMELEC En Banc correctly ordered the new MBC to re-
canvass all the ERs and to proclaim the winner on the basis thereof despite the
pendency of the appeal with the First Division.

The petition is partly granted.

Anent the first issue, we find no merit in petitioners contention.

While Section 9, Rule 3 of the COMELEC Rules of Procedure provides
that when an action or proceeding involves a question of law and fact which is
similar to or common with that of another action or proceeding, the same may be
consolidated with the action or proceeding bearing the lower docket
number, however, this rule is only permissive, not mandatory. We have
consistently held that the term may is indicative of a mere possibility, an
opportunity or an option. The grantee of that opportunity is vested with a right
or faculty which he has the option to exercise. If he chooses to exercise the right,
he must comply with the conditions attached thereto,
[14]
which in this case
require that the cases to be consolidated must involve similar questions of law
and fact.

In the case at bar, the consolidation of SPC No. 04-087 with SPC No. 04-124
is inappropriate as they do not involve similar questions of law and fact. SPC No.
04-087 assails the inclusion of the 26 ERs by the MBC on the ground that these
were incomplete, contained material defects and were prepared under
intimidation, issues which are proper for a pre-proclamation controversy under
paragraphs (b) and (c) of Section 243 of the Omnibus Election Code. On the other
hand, SPC No. 04-124 is a petition for the annulment of petitioners proclamation
for allegedly being prematurely done, in violation of Section 36(i) of COMELEC
Resolution No. 6669
[15]
which instructs the board of canvassers not proclaim any
candidate as winner unless authorized by the Commission after the latter has
ruled on the objections brought to it on appeal by the losing party; [a]ny
proclamation made in violation hereof shall be void ab initio, unless the contested
returns/certificates will not affect the results of the elections. In fine, SPC No. 04-
087 pertains to the preparation of the ERs which is a pre-proclamation
controversy, while SPC No. 04-124 refers to the conduct of the MBC in
proclaiming the petitioner without authority of the COMELEC.

Mere pendency of the two cases before the same division of the
COMELEC is not a ground for their outright consolidation. The discretion to
consolidate cases may be exercised only when the conditions are present. In
any event, the records are bereft of evidence that the parties agreed to
consolidate the two cases or that the COMELEC First Division had granted the
same.

Further, we find that the COMELEC First Division correctly annulled the
proclamation of the petitioner. Time and again, this Court has given its
imprimatur on the principle that COMELEC is with authority to annul any canvass
and proclamation which was illegally made.
[16]
At the time the proclamation was
made, the COMELEC First Division had not yet resolved SPC No. 04-087. Pursuant
to Section 36(i) of COMELEC Resolution No. 6669, which finds basis in Section
20(i) of Republic Act (R.A.) No. 7166,
[17]
the MBC should not have proclaimed
petitioner as the winning candidate absent the authorization from the
COMELEC. Any proclamation made under such circumstances is void ab initio.
[18]


We likewise do not agree with petitioners contention that the
proclamation was valid as the contested ERs will not affect the results of the
election.

Section 20(i) of R.A. No. 7166 reads:

Sec. 20. Procedure in Disposition of Contested Election Returns.

x x x x

(i) The board of canvassers shall not proclaim any candidate as winner
unless authorized by the Commission after the latter has ruled on the objections
brought to it on appeal by the losing party. Any proclamation made in violation hereof
shall be void ab initio, unless the contested returns will not adversely affect the results
of the election. (Emphasis supplied)

The phrase results of the election is not statutorily defined. However, it
had been jurisprudentially explained in Lucero v. Commission on Elections
[19]
to
mean:

[T]he net result of the election in the rest of the precincts in a given constituency, such
that if the margin of a leading candidate over that of his closest rival in the latter
precincts is less than the total number of votes in the precinct where there was failure
of election, then such failure would certainly affect the result of the election.
[20]


Although the Lucero case involves a failure of election, the definition
of results of election applies to the disposition of contested election returns
under Section 20(i) of R.A. No. 7166. In both situations, the law endeavors to
determine the will of the people in an expeditious manner in that if the total
number of votes in the precinct where there is a failure of election or in case of
the contested ERs, is less than the lead of a candidate over his closest rival, the
results of the election would not be adversely affected. Hence, a proclamation
may be made because the winning candidate can be ascertained. Otherwise, a
special election must be held or an authorization of the COMELEC is necessary
after ruling on the objections brought to it on appeal by the losing party in order
to determine the will of the electorate. Proclamation made in violation of the
rules is void ab initio as it would be based on an incomplete canvass of votes. It is
well settled that an incomplete canvass of votes is illegal and cannot be the basis
of a subsequent proclamation. A canvass is not reflective of the true vote of the
electorate unless the board of canvassers considers all returns and omits none.
[21]


In the case at bar, petitioner obtained a margin of 762 votes over the
private respondent based on the canvass of the uncontested ERs whereas the
total number of votes in the 26 contested ERs is 5,178, which is higher than the
762-lead of the petitioner over the private respondent. Clearly, the results of the
election would be adversely affected by the uncanvassed returns.

As aptly held by the COMELEC First Division:

The votes obtained by petitioner and private respondent tallied in the contested
election returns can not be the basis of the partial proclamation. The objected election
returns cannot be considered, even provisionally, as the true and final result of the
elections in the contested precincts. The possibility remains, remote thought (sic) it
may be that they could be excluded and the results reflected therein disregarded. The
contested election returns involved 5,178 votes as this is the number of voters who
actually voted in the precincts covered by the objections. The lead of [petitioner] over
[private respondent] as shown in the uncontested returns was less than this
number. Clearly, the results of the elections could be adversely affected by the
uncanvassed returns. Truly, the Board erred in its perception that its partial
proclamation was warranted.
[22]


While the COMELEC En Banc correctly affirmed the October 25, 2004
Resolution of its First Division in SPC 04-124 insofar as it annulled petitioners
proclamation, however, we find that it exceeded its authority and thus gravely
abused its discretion when it ordered the new MBC to re-canvass all ERs even
before its First Division could decide on SPC No. 04-087 filed by private
respondent assailing the ruling of the MBC to include the 26 contested ERs in the
canvass.

Section 3 of Article IX-C of the 1987 Constitution provides:

Sec. 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.

In Sarmiento v. Commission on Elections
[23]
and Zarate v. Commission on
Elections,
[24]
the Court similarly held that election cases must first be heard and
decided by a Division of the Commission, and that the Commission, sitting en
banc, does not have the authority to hear and decide the same at the first
instance.

Thus, in Acosta v. Commission on Elections,
[25]
the Court held that the
COMELEC En Banc violated the foregoing Constitutional mandate when it
affirmed the trial courts decision that was not the subject of the special civil
action before it, but of the appeal filed by therein petitioner, which was still
undocketed at the time and the parties have not yet submitted any evidence in
relation thereto.

Clearly, by ordering the re-canvass of all the ERs in SPC No. 04-124, the
COMELEC En Banc in effect rendered a decision on the merits of SPC No. 04-087,
which up to the present is still pending before its First Division, in violation of the
rule that it does not have the authority to hear and decide election cases,
including pre-proclamation controversies, at the first instance. As the
proclamation of the winning candidate has been delayed for more than two years
now due to these cases, the COMELEC First Division is directed to expeditiously
resolve SPC No. 04-087, which is summary in nature.

WHEREFORE, in view of the foregoing, the petition is PARTLY
GRANTED. The December 15, 2005 Resolution of the COMELEC En Banc in SPC
No. 04-124 which affirmed the annulment and setting aside by its First Division of
the proclamation of petitioner Rommel G. Muoz as Mayor of Camalig, Albay for
being premature, isAFFIRMED with the MODIFICATION that the order to
constitute a new Municipal Board of Canvassers to re-canvass all the election
returns of Camalig, Albay; to prepare a new Certificate of Canvass; and to declare
the winning candidate for mayoralty position is SET ASIDE for having been issued
with grave abuse of discretion. TheTEMPORARY RESTRAINING ORDER issued
on January 17, 2006 is hereby SET ASIDE.

SO ORDERED.


CONSUELO YNARES-SANTIAGO
Associate Justice


WE CONCUR:



ARTEMIO V. PANGANIBAN
Chief Justice



REYNATO S. PUNO LEONARDO A. QUISUMBING
Associate Justice Associate Justice






ANGELINA SANDOVAL-GUTIERREZ ANTONIO T. CARPIO
Associate Justice Associate Justice



MA. ALICIA AUSTRIA-MARTINEZ RENATO C. CORONA
Associate Justice Associate Justice



CONCHITA CARPIO-MORALES ROMEO J. CALLEJO, SR.
Associate Justice Associate Justice



ADOLFO S. AZCUNA DANTE O. TINGA
Associate Justice Associate Justice



MINITA V. CHICO-NAZARIO CANCIO C. GARCIA
Associate Justice Associate Justice



PRESBITERO J. VELASCO, JR.
Associate Justice



CERTIFICATION


Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Court.



ARTEMIO V. PANGANIBAN
Chief Justice



[1]
Rollo, pp. 42-48.
[2]
Id. at 49-56.
[3]
Id. at 14.
[4]
Id. at 14-15.
[5]
Id. at 15.
[6]
Id. at 64-80.
[7]
Id. at 50.
[8]
Id. at 58-61.
[9]
Id. at 55.
[10]
Id. at 91-108.
[11]
Id. at 47.
[12]
Id. at 137-138.
[13]
Id. at 23.
[14]
Social Security Commission v. Court of Appeals, G.R. No. 152058, September 27, 2004, 439 SCRA 239, 250.
[15]
General Instructions for Municipal/City/Provincial and District Boards of Canvassers in connection with the May
10, 2004 Elections; Promulgated March 16, 2004.
[16]
Abdulakarim D. Utto v. Commission on Elections, 426 Phil. 225, 241(2002).
[17]
AN ACT PROVIDING FOR SYNCHRONIZED NATIONAL AND LOCAL ELECTIONS AND FOR
ELECTORAL REFORMS, AUTHORIZING APPROPRIATIONS THEREFOR, AND FOR OTHER PURPOSES;
Promulgated November 26, 1991.
[18]
Nasser Immam v. Commission on Elections, 379 Phil. 953, 963 (2000).
[19]
G.R. Nos. 113107 & 113509, July 20, 1994, 234 SCRA 280.
[20]
Id. at 292-293.
[21]
Barbers v. Commission on Elections, G.R. No. 165691, June 22, 2005, 460 SCRA 569, 584.
[22]
Rollo, pp. 54-55.
[23]
G.R. Nos. 105628, 105725, 105727, 105730, 105771, 105778, 105797, 105919 & 105977, August 6, 1992, 212
SCRA 307, 313-314.
[24]
376 Phil. 722, 727-728 (1999).
[25]
355 Phil. 323, 326-327 (1998).

Republic of the Philippines
Supreme Court
Manila
EN BANC

CONGRESSWOMAN
LUCY MARIE TORRES-GOMEZ
Petitioner,




- versus -




EUFROCINO C. CODILLA, JR. and HON.
HOUSE OF REPRESENTATIVES
ELECTORAL TRIBUNAL
Respondents.

G. R. No. 195191

Present:

CORONA, C.J.,
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
-

ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.

Promulgated:

March 20, 2012
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

SERENO, J.:

This is a Petition for Certiorari under Rule 65 of the Rules of Court, with
application for Temporary Restraining Order and/or Writ of Preliminary
Prohibitory Injunction. The Petition seeks to annul and set aside Resolution No.
10-482 of the House of Representatives Electoral Tribunal (HRET) in HRET Case
No. 10-009 (EP) entitled Eufrocino C. Codilla, Jr. v. Lucy Marie Torres-
Gomez (Fourth District, Leyte), which denied the Motion for Reconsideration
filed by petitioner.
Statement of the Facts and the Case
On 30 November 2009, Richard I. Gomez (Gomez) filed his Certificate of
Candidacy for representative of the Fourth Legislative District of Leyte under the
Liberal Party of the Philippines. On even date, private respondent Codilla Jr. filed
his Certificate of Candidacy for the same position under Lakas Kampi CMD.
On 6 December 2009, Buenaventura O. Juntilla (Juntilla), a registered voter
of Leyte, filed a Verified Petition for Gomezs disqualification with the Commission
on Elections (COMELEC) First Division on the ground that Gomez lacked the
residency requirement for a Member of the House of Representatives.
In a Resolution dated 17 February 2010, the COMELEC First Division granted
Juntillas Petition and disqualified Gomez. On 20 February 2010, the latter filed a
Motion for Reconsideration with the COMELEC En Banc, which dismissed it on 4
May 2010, six days before the May 2010 national and local elections. The
dispositive portion of the COMELECs Resolution
[1]
is worded as follows:
WHEREFORE, premises considered, the motion for reconsideration filed by the
Respondent is DISMISSED for lack of merit. The Resolution of the Commission (First
Division) is hereby AFFIRMED.
SO ORDERED.
[2]


On the same date, Gomez filed a Manifestation with the COMELEC En Banc,
alleging that, without necessarily admitting the allegations raised by Juntilla, he
was accepting the aforementioned Resolution with finality, in order to enable
his substitute to facilitate the filing of the necessary documents for substitution.
On 5 May 2010, petitioner Lucy Marie Torres-Gomez filed her Certificate of
Candidacy as substitute for the position of representative of the Fourth
Congressional District for the Province of Leyte vice Gomez, her husband.
On 6 May 2010, Juntilla filed a Counter-Manifestation with the COMELEC En
Banc. At the same time, he wrote a letter to Atty. Ferdinand T. Rafanan, Director
of the Law Department of the COMELEC, alleging the invalidity of the proposed
substitution of Gomez by petitioner.
On 8 May 2010, the COMELEC En Banc issued Resolution No. 8890, which
approved and adopted the recommendation of its Law Department to allow
petitioner as a substitute candidate for Gomez for representative of the Fourth
Legislative District of Leyte.
On 9 May 2010, Juntilla filed an Extremely Urgent Motion for
Reconsideration of the above COMELEC Resolution No. 8890. Pending resolution
of his motion, the national and local elections were conducted as scheduled.
After the casting, counting and canvassing of votes in the said elections,
petitioner emerged as the winner with 101,250 votes or a margin of 24,701 votes
over private respondent Codilla, who obtained 76,549 votes.
On 11 May 2010, Codilla filed an Urgent Ex-Parte Motion to Suspend the
Proclamation of Substitute Candidate Lucy Marie T. Gomez (vice Richard I.
Gomez) as the Winning Candidate of the May 10, 2010 Elections for the Fourth
Congressional District of Leyte.
On the same date, Juntilla filed an Extremely Urgent Motion to resolve the
pending Motion for Reconsideration filed on 9 May 2010 relative to Resolution
No. 8890 and to immediately order the Provincial Board of Canvassers of the
Province of Leyte to suspend the proclamation of petitioner as a Member of the
House of Representatives, Fourth District, Province of Leyte.
On 12 May 2010, petitioner was proclaimed the winning candidate for the
congressional seat of the Fourth District of Leyte.
Accordingly, on 21 May 2010, private respondent Codilla filed a Petition
with public respondent HRET against petitioner docketed as HRET Case No. 10-
009 (Election Protest).
On 2 July 2010, petitioner filed her Verified Answer to Codillas Election
Protest questioning the alleged lack of the required Verification and praying for its
dismissal.
On 8 July 2010, Codilla filed a Reply to petitioners Verified Answer.
In an Order issued by public respondent HRET, the instant case was set for
preliminary conference on 2 September 2010.
On 1 September 2010, unsatisfied with the Order of the HRET, petitioner
filed an Urgent Manifestation and Motion, persistent in her position that Codillas
Election Protest should be dismissed based on the grounds raised in her Verified
Answer. She also prayed for the deferment of the preliminary conference until
after the resolution of the said motion.
On 9 September 2010, the HRET issued the assailed Resolution No. 10-
282
[3]
resolving the Urgent Manifestation and Motion filed by petitioner, the
dispositive portion of which provides:
The Tribunal NOTES the Urgent Manifestation and Motion filed on September 1,
2010 by the protestee; REITERATES its ruling in Resolution No. 10-160 dated July 29,
2010 that the protest cannot be considered insufficient in form, considering that the
examination of the original copy of the protest filed before the Tribunal had revealed
the existence of the required verification; and DENIES the respondents motion for
deferment of the preliminary conference scheduled on September 2, 2010.
[4]


Accordingly, on 30 September 2010, petitioner filed with public respondent
HRET a Motion for Reconsideration of the above Resolution No. 10-282.
On 22 November 2010, public respondent HRET issued Resolution No. 10-
482
[5]
denying petitioners Motion for Reconsideration, ruling as follows:
WHEREFORE, the Tribunal DENIES the instant motion for reconsideration as
regards the issues pertaining to absence/defect of the verification and propriety of the
election protest; andDIRECTS the protestant to have his verification properly
notarized.
[6]

Thereafter, petitioner filed the instant Petition for Certiorari
[7]
dated 7
February 2011. The Petition raises the following grounds:
A.
THE PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT REFUSED TO DISMISS THE ELECTION
PROTEST DESPITE AN ADMITTEDLY DEFECTIVE VERIFICATION.

B.
THE PUBLIC RESPONDENT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK AND/OR EXCESS OF JURISDICTION WHEN IT ALLOWED THE PROTESTANT TO RAISE
ISSUES ON QUALIFICATION OF CANDIDATES IN AN ELECTION PROTEST.
[8]


Petitioner claims that there was a material defect in the Verification of the
Election Protest, a requirement explicitly provided for in Rule 16 of the 2004 Rules
of the House of Representatives Electoral Tribunal (HRET Rules).
[9]
The verification
being a mandatory requirement, the failure to comply therewith is a fatal defect
that affects the very jurisdiction of the HRET.
On the second issue, petitioner claims that what is in question in the
Election Protest is her qualification as a Member of the House of Representatives,
and not the number of votes cast. Her qualification is allegedly not a proper
ground for an election protest, in which the issues should be the appreciation of
ballots and the correctness and number of votes of each candidate.
On 15 February 2011 this Court required respondents to file their comment
on the Petition. Thereafter, Codilla filed his Comment/Opposition dated 28 April
2011. In his Comment, he argues that there was no grave abuse of discretion on
the part of the HRET in issuing the assailed Resolutions. He clarifies that the
Election Protest that he filed contained a validly executed Verification and
Certification of Non-Forum Shopping (Verification).
[10]
However, the defect that
petitioner points to is the portion of the jurat of the Verification, which states:
Subscribed and sworn to before me this __ day of May 2010 at _____. Affiant
personally and exhibited to me his (1) License ID Card with Card No. H03-80-002135
issued by LTO on January 16, 2009 (2) Philippine Passport No. XX4793730 issued on
October 20, 2009 valid until October 19, 2014, he, being the same person herein who
executed the foregoing document thereof.
[11]


The date May 21 2009 was stamped on the first blank in __ day of May
2010. May 21 2010 was written with a pen over the stamped date May 21
2009 and countersigned by the notary public. Codilla claims that the date of the
Verification was a mere innocuous mistake or oversight, which did not warrant a
finding that the Verification was defective; much less, fatally defective. He claims
he should not be faulted for any alleged oversight that may have been committed
by the notary public. Further, the same argument holds true with respect to the
absence of the Mandatory Continuing Legal Education (MCLE) Compliance
Number of the notary public, as well as the overdue Professional Tax Receipt
(PTR) indicated in the notarial stamp. In any case, the insufficiency of the
Verification was not fatal to the jurisdiction of the HRET.
With respect to the second issue, Codilla argues that the issues in the
Election Protest do not pertain to petitioners qualification, but to the casting and
counting of votes. He claims that his Election Protest contests the declaration by
the Board of Canvassers that the 101,250 votes should be counted in favor of
petitioner and be credited to him as these should have instead been declared as
stray votes.
Thereafter, public respondent HRET filed its Comment
[12]
on the Petition
dated 5 May 2011. In its Comment, the HRET claims that it did not commit grave
abuse of discretion when it took cognizance of Codillas Election Protest despite
an alleged absence/defect in the verification. After all, an unverified petition
differs from one which contains a defective verification, such as in this case. A
defective verification is merely a formal defect which does not affect the
jurisdiction of the tribunal. In any case, the summary dismissal of an Election
Protest, as well as the allowance of its amendments in matters of form, is
sanctioned by the HRET Rules.
The HRET further argues that it did not commit grave abuse of discretion
when it took cognizance of the Election Protest. The issue raised in the Election
Protest was the validity of petitioners proclamation, in view of her alleged invalid
substitution. This is a matter that is addressed to the sound judgment of the
HRET.
On 7 June 2011, this Court, among others, required petitioner to file a reply
to Codillas Comment. Petitioner later filed her Reply dated 15 August 2011, citing
an additional ground for considering the Verification as defective. She claimed
that Codilla, a resident of Ormoc City, could not have possibly appeared before a
notary public in Quezon City; and that he failed to prove that he was indeed in
Quezon City when he supposedly verified the Election Protest.
The Courts Ruling
The Petition is dismissed for failure to show any grave abuse of discretion on
the part of the HRET.
On the Allegedly Defective Verification
While the existence of the Verification is not disputed, petitioner notes
three alleged defects. First, the Election Protest was filed on 21 May 2010, but the
Verification was allegedly subscribed and sworn to on 21 May 2009.
[13]
Second,
Codilla, a resident of Ormoc City, could not have possibly appeared personally
before the notary public in Quezon City.
[14]
Third, in the notarial stamp, the date
of expiration of the notarial commission was handwritten while all other details
were stamped; the PTR indicated was issued in 2005; there was no MCLE
Compliance Number as required by Bar Matter No. 1922.
[15]
Petitioner claims that
due to the lack of a proper verification, the Election Protest should have been
treated as an unsigned pleading and must be dismissed.
The alleged defects of the Verification are more apparent than real.
With respect to the date of the notarization, it is clear that the stamped
date 2009 was a mere mechanical error. In fact, the notary public had
superimposed in writing the numbers 10 and countersigned the alteration.
Thus, this error need not be overly magnified as to constitute a defect in the
Verification.
With respect to the second alleged defect, there is a presumption that
official duty has been regularly performed with respect to the jurat of the
Verification, wherein the notary public attests that it was subscribed and sworn to
before him or her, on the date mentioned thereon.
[16]
Official duties are
disputably presumed to have been regularly performed. Thus, contrary to
petitioners allegation, there was no need for Codilla to attach his plane ticket to
prove he flew from Ormoc City to Manila.
[17]

Further, to overcome the presumption of regularity, clear and convincing
evidence must be presented.
[18]
Absent such evidence, the presumption must be
upheld. The burden of proof to overcome the presumption of due execution of a
notarized document lies on the party contesting the execution.
[19]
Thus,
petitioners contention that she had reliable information that *Codilla+ was in
Ormoc City on the date indicated in the Verification cannot be considered as
clear and convincing evidence to rebut the presumption that the document was
duly executed and notarized.
With respect to the third alleged defect, the fact that some portions of the
stamp of the notary public were handwritten and some were stamped does not,
in itself, indicate any defect. Further, Bar Matter No. 1922 merely requires
lawyers to indicate in all pleadings filed before the courts or quasi-judicial bodies,
the number and date of issue of their MCLE Certificate of Compliance or
Certificate of Exemption, whichever is applicable for the immediately preceding
compliance period. Clearly, the regulation does not apply to notarial acts. With
respect to the PTR number which was dated 5 years prior to the date of
notarization, the deficiency merely entails the potential administrative liability of
the notary public.
[20]

In any case, there was no grave abuse of discretion on the part of the HRET
in denying petitioners Motion to Dismiss the Election Protest and directing
Codilla to have his Verification properly notarized.
It has been consistently held that the verification of a pleading is only a
formal, not a jurisdictional, requirement. The purpose of requiring a verification is
to secure an assurance that the allegations in the petition are true and correct,
not merely speculative. This requirement is simply a condition affecting the form
of pleadings, and noncompliance therewith does not necessarily render the
pleading fatally defective.
[21]

This Court has emphasized that in this species of controversy involving the
determination of the true will of the electorate, time is indeed of paramount
importance. An election controversy, by its very nature, touches upon the
ascertainment of the peoples choice as gleaned from the medium of the ballot.
For this reason, an election protest should be resolved with utmost dispatch,
precedence and regard for due process. Obstacles and technicalities that fetter
the peoples will should not stand in the way of a prompt termination of election
contests.
[22]
Thus, rules on the verification of protests should be liberally
construed.
At this point, it is pertinent to note that such liberalization of the rules was
also extended to petitioner. A perusal of the Verification and Certification
attached to this Petition shows she attests that the contents of the Petition are
true and correct of [her] own personal knowledge, belief and based on the
records in *her+ possession.
[23]
Section 4, Rule 7 of the Rules of Court provides
that a pleading required to be verified which contains a verification based on
information and belief or knowledge, information and belief, shall be treated
as an unsigned pleading. A pleading, therefore, wherein the verification is based
merely on the party's knowledge and belief such as in the instant Petition
produces no legal effect, subject to the discretion of the court to allow the
deficiency to be remedied.
[24]

On the Propriety of the Election Protest
Codillas Election Protest contests the counting of 101,250 votes in favor of
petitioner. He claims that the denial of the Certificate of Candidacy of Gomez
rendered the latter a non-candidate, who therefore could not have been validly
substituted, as there was no candidacy to speak of.
It bears stressing that the HRET is the sole judge of all contests relating to
the election, returns, and qualifications of the members of the House of
Representatives. This exclusive jurisdiction includes the power to determine
whether it has the authority to hear and determine the controversy presented;
and the right to decide whether there exists that state of facts that confers
jurisdiction, as well as all other matters arising from the case legitimately before
it.
[25]
Accordingly, the HRET has the power to hear and determine, or inquire into,
the question of its own jurisdiction both as to parties and as to subject matter;
and to decide all questions, whether of law or of fact, the decision of which is
necessary to determine the question of jurisdiction.
[26]
Thus, the HRET had the
exclusive jurisdiction to determine its authority and to take cognizance of the
Election Protest filed before it.
Further, no grave abuse of discretion could be attributed to the HRET on
this score. An election protest proposes to oust the winning candidate from
office. It is strictly a contest between the defeated and the winning candidates,
based on the grounds of electoral frauds and irregularities. Its purpose is to
determine who between them has actually obtained the majority of the legal
votes cast and is entitled to hold the office.
[27]
The foregoing considered, the
issues raised in Codillas Election Protest are proper for such a petition, and is
within the jurisdiction of the HRET.
WHEREFORE, the instant Petition for Certiorari is DISMISSED. The
Application for a Temporary Restraining Order and/or Writ of Preliminary
Prohibitory Injunction is likewise DENIED. Resolution Nos. 10-282 and 10-482 of
the House of Representatives Electoral Tribunal are hereby AFFIRMED.

SO ORDERED.



MARIA LOURDES P. A. SERENO
Associate Justice

WE CONCUR:


RENATO C. CORONA
Chief Justice


(no part, chairperson of HRET)
ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice


No part, previous member of HRET
TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice


No part, member of HRET
DIOSDADO M. PERALTA LUCAS P. BERSAMIN
Associate Justice Associate Justice


(On leave)
MARIANO C. DEL CASTILLO ROBERTO A. ABAD
Associate Justice Associate Justice



MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ
Associate Justice Associate Justice



JOSE CATRAL MENDOZA BIENVENIDO L. REYES
Associate Justice Associate Justice



ESTELA M. PERLAS-BERNABE
Associate Justice



C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice




-
On leave.
[1]
Rollo, pp. 131-142.
[2]
Id. at 141.
[3]
Rollo, pp. 29-30. The HRET members who were present when Resolution No. 10-282 was passed were
Justice Conchita Carpio Morales, chairperson; and Justice Antonio Eduardo B. Nachura, Representative (Rep.)
Franklin P. Bautista, Rep. Rufus B. Rodriguez, Rep. Ma. Theresa B. Bonoan-David, and Rep. Rodolfo B.
Albano, Jr., members.
[4]
Id. at 29; emphasis and italics in the original.
[5]
Id. at 31-33. The HRET members who were present when Resolution No. 10-482 was passed were Justice
Conchita Carpio Morales, chairperson; and Justice Antonio Eduardo B. Nachura, Justice Arturo D. Brion, Rep.
Franklin P. Bautista, Rep. Rufus B. Rodriguez, Rep. Justin Marc SB Chipeco, Rep. Ma. Theresa B. Bonoan-
David, and Rep. Rodolfo B. Albano, Jr., members.
[6]
Id. at 33; emphasis and italics in the original.
[7]
Id. at 3-24.
[8]
Id. at 10.
[9]
Rule 16 provides:
RULE 16. Election Protest. A verified petition contesting the election or returns of any Member
of the House of Representatives shall be filed by any candidate who has duly filed a certificate of
candidacy and has been voted for the same office, within ten (10) days after the proclamation of the
winner. The party filing the protest shall be designated as the protestant while the adverse party shall be
known as the protestee.
x x x
An unverified election protest shall not suspend the running of the reglementary period to file the
protest.
[10]
Rollo, p. 93.
[11]
Id.
[12]
Rollo, pp. 201-232.
[13]
Petitioners Reply dated 15 August 2011, rollo, p. 361.
[14]
Rollo, p. 362.
[15]
Rollo, pp. 362-363.
[16]
Philippine Trust Company v. Court of Appeals, G.R. No. 150318, 22 November 2010, 635 SCRA 518.
[17]
Rollo, p. 362.
[18]
Bote v. Eduardo, A.M. No. MTJ-04-1524, 11 February 2005, 451 SCRA 9.
[19]
Calma v. Santos, G.R. No. 161027, 22 June 2009, 590 SCRA 359.
[20]
Section 1, Rule XI, 2004 Rules of Notarial Practice.
[21]
Alde v. Bernal, G.R. No. 169336, 18 March 2010, 616 SCRA 60.
[22]
Panlilio v. COMELEC, G.R. No. 181478, 15 July 2009, 593 SCRA 139.
[23]
Rollo, p. 25.
[24]
Negros Oriental Planters Association, Inc. (NOPA) v. Presiding Judge of RTC-Negros Occidental, Br. 52,
Bacolod City, G.R. No. 179878, 24 December 2008, 575 SCRA 575.
[25]
Roces v. House of Representatives Electoral Tribunal, 506 Phil. 654 (2005).
[26]
Id.
[27]
Lokin v. COMELEC, G.R. Nos. 179431-32, 22 June 2010, 621 SCRA 385.
EN BANC

[G.R. No. 194143 : December 06, 2011]

SALVADOR D. VIOLAGO, SR. VS. COMMISSION ON ELECTIONS AND JOAN V. ALARILLA

Sirs/Mesdames:

Please take notice that the Court en banc issued a Resolution dated DECEMBER 6, 2011, which reads as
follows:cralaw
"G.R. No. 194143 (Salvador D. Violago, Sr. vs. Commission on Elections and Joan V. Alarilla).- The Court
Resolved to
(a) DENY WITH FINALITY the Motion for Reconsideration (of the Decision dated October 4, 2011) dated
October 25, 2011 filed by counsel for private respondent as the basic issues raised therein have been
passed upon by this Court and no substantial arguments were presented to warrant the reversal of the
questioned Decision;
(b) NOTE and GRANT the Letter dated October 17, 2011 filed by Dr. Saga D. Mabaning, Chief, Electoral
Contests Adjudication Department, Judicial Records Division, Commission on Elections (COMELEC),
requesting that the case folder of this case be returned to their office for continuation of the protest
proceedings pursuant to the Decision dated October 4, 2011;
(c) DIRECT the Judicial Records Office to IMMEDIATELY TRANSMIT the records of this case to the
COMELEC, through Dr. Mabaning; and
(d) NOTE the Letter dated October 12, 2011 filed by Betty B. Pizaa, Director IV, Electoral Contests
Adjudication Department, Judicial Records Division, COMELEC, acknowledging receipt of the Notice of
Judgment dated October 10, 2011 with copy of the Decision dated October 4, 2011."


EN BANC

CONSTANCIO D. PACANAN,
JR.,
Petitioner,







- versus -







COMMISSION ON ELECTIONS
and FRANCISCO M. LANGI,
SR.,
Respondents.
G.R. No. 186224

Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,
*

CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
**

LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO, and
ABAD, JJ.

Promulgated:

August 25, 2009
x------------------------------------------------------------------------------------------x

D E C I S I O N

LEONARDO-DE CASTRO, J.:

Before the Court is a petition for certiorari which seeks to set aside 1) the
Order
[1]
dated March 17, 2008 of the Commission on Elections (Comelec) First
Division and 2) the Resolution
[2]
dated January 21, 2009 of the Comelec En Banc
dismissing petitioner Constancio D. Pacanan, Jr.s appeal from the Decision
[3]
of
the Regional Trial Court (RTC), Branch 27, Catbalogan, Samar, in Election Case No.
07-1, which declared private respondent Francisco M. Langi, Sr. as the winning
Mayor of Motiong, Samar.

In the Order of March 17, 2008, the Comelec First Division dismissed the
appeal for failure to pay the correct appeal fee as prescribed by the Comelec
Rules of Procedure within the five-day reglementary period.

In the assailed Resolution dated January 21, 2009, the Comelec En Banc
denied petitioners motion for reconsideration, declaring that the Comelec did
not acquire jurisdiction over the appeal because of the non-payment of the
appeal fee on time, and that the Comelec First Division was correct in dismissing
the said appeal.

The antecedent facts are as follows:

Petitioner Constancio D. Pacanan, Jr. and private respondent Francisco M.
Langi, Sr. were candidates for mayor in the municipality of Motiong, Samar during
the May 14, 2007 elections. After the canvassing of votes, the Municipal Board of
Canvassers (MBC) of Motiong, Samar proclaimed petitioner as the duly elected
mayor, having garnered a total of 3,069 votes against private respondents 3,066
votes.

Thereafter, private respondent filed with the RTC a Protest
[4]
dated May 25,
2007 which was docketed as Election Case No. 07-1, contesting the results of the
elections in ten (10) of the forty-nine (49) precincts in Motiong, Samar, and
alleging acts of violence and intimidation and other election irregularities in the
appreciation of the votes by the MBC. Thereafter, petitioner filed his Verified
Answer with Counter-Protest
[5]
dated June 4, 2007, asserting that private
respondents allegations of threat and intimidation, fraud and other irregularities
in the conduct of elections were mere allegations unsupported by any
documentary evidence. Petitioner also disputed the election results with respect
to seven (7) precincts.

On January 7, 2008, the RTC rendered a decision
[6]
in Election Case 07-1,
which declared private respondent as the winner in the May 14, 2007 mayoralty
race for Motiong, Samar with a plurality of six (6) votes, viz:

Wherefore, in view of the foregoing Protestant Francisco M. Langi, Sr. having
obtained the over all total votes of 3,074 and the Protestees 3,068 total and final votes
is declared the winner in the Mayoralty contest in Motiong, Samar with a plurality of (6)
votes. Therefore the proclamation on May 17, 2007 is hereby annulled and declared
Francisco Langi, Sr. y Maceren as the duly elected Mayor of Motiong, Samar. The
winner is awarded the amount of P 32,510 as actual damages and no evidence aliunde
for damages for the court to award. xxx

On January 10, 2008, petitioner filed a notice of appeal and paid P3,000.00
appeal fee per Official Receipt No. 6822663 before the RTC, Branch 27,
Catbalogan, Samar. He also appealed the RTC decision dated January 7, 2008 to
the Comelec which docketed the case as EAC No. A-13-2008. Out of
the P3,000.00 appeal fee required by Section 3, Rule 40 of the Comelec Rules of
Procedure, petitioner only paid the amount of P1,000.00 (plus P200.00 to cover
the legal research/bailiff fees) to the Cash Division of the Comelec, per Official
Receipt No. 0510287. The said payment was made on February 14, 2008.
[7]


On March 17, 2008, the Comelec First Division issued an Order
[8]
dismissing
the appeal, viz.:

Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of Procedure which
provide for the payment of appeal fee in the amount of P3,000.00 within the period to
file the notice of appeal, and Section 9 (a), Rule 22 of the same Rules which provides
that failure to pay the correct appeal fee is a ground for the dismissal of the appeal, the
Commission (First Division) RESOLVED as it herebyRESOLVES to DISMISS the instant
case for Protestee-Appellants failure to pay the correct appeal fee as prescribed by the
Comelec Rules of Procedure within the five-(5)-day reglementary period.

SO ORDERED.

On March 28, 2008, petitioner filed a Motion for Reconsideration
[9]
which
the Comelec En Banc denied in the Resolution
[10]
dated January 21, 2009,
declaring that the appeal was not perfected on time for non-payment of the
complete amount of appeal fee and for late payment as well. The Comelec En
Banc held that the Comelec did not acquire jurisdiction over the appeal because
of the non-payment of the appeal fee on time. Thus, the Comelec First Division
correctly dismissed the appeal.

Hence, the instant petition for certiorari raising the following grounds:

The respondent COMELEC committed grave abuse of discretion amounting to
lack or excess of jurisdiction in holding that the correct appeal fee was not
paid on time.

The respondent COMELEC committed grave abuse of discretion amounting to
lack or excess of jurisdiction in failing to consider that assuming that the
correct appeal fee was not paid on time, the alleged non-payment of the
correct appeal fee is not in anyway attributable to herein petitioner.

The respondent COMELEC committed grave abuse of discretion amounting to
lack or excess of jurisdiction in failing to consider that assuming that the
correct appeal fee was not paid on time, there are highly justifiable and
compelling reasons to resolve the subject case on the merits in the interest of
justice and public interest.

Petitioner further claims that he paid a total of P4,215.00 for his appeal, as
follows:

a. To RTC on January 10, 2008 ------ P3,000.00
10.00
5.00
TOTAL P3,015.00

b. To Comelec on February 14, 2008 -- P1,000.00
50.00
150.00
TOTAL P1,200.00
Petitioner submits that it is incumbent upon the RTC to transmit to the
Comelec the entire P3,000.00 appeal fee that he paid on January 10,
2008. Petitioner also advances another interpretation of the Comelec Rules that
the RTC is under obligation to remit to the Comelec the P2,000.00 representing
the excess amount of the P1,000.00 appeal fee. Thus, petitioner claims that he
must be deemed to have complied, in full or at least substantially, with the
Comelec Rules on the payment of appeal fees.

Petitioner maintains that the alleged non-payment of the correct appeal
fee is not due to his own fault or negligence. He claims that the laws on appeals
in election protest cases are not yet well-established, thus, he must not be made
to suffer for an oversight made in good faith. The Resolution No. 8486 of July 15,
2008 adopted by the Comelec to clarify the rules on compliance with the required
appeal fees in election cases should not be applied retroactively to the subject
election protest.

Lastly, petitioner invokes liberality in the application of the election law. He
asserts that the popular will of the people expressed in the election of public
officers should not be defeated by reason of sheer technicalities. Petitioner
argues that the true will of the people of Motiong in the May 14, 2007 elections
should be determined by ordering the Comelec to give due course to his appeal
and to resolve the same on the merits.

In his Comment, respondent Langi, Sr. states that the petition was just a
mere rehash of the Motion for Reconsideration that petitioner filed with the
Comelec En Banc. Respondent maintains that for the Comelec to exercise its
authority to administer proceedings, grant leniency, issue orders, and pass
judgment on issues presented, it must first be shown that it has acquired the
requisite jurisdiction over the subject matter pursuant to the initiatory acts and
procedural compliance set as conditions precedent.

Respondent also argues that the negligence and mistakes of petitioners
counsel bind petitioner. He then reiterates the cases where this Court held that
the non-payment or insufficiency of payment of filing fees is a valid ground for the
dismissal of the appeal and that the subsequent full payment thereof does not
cure the jurisdictional defect.

We grant the petition.

Section 3, Rule 22 (Appeals from Decisions of Courts in Election Protest
Cases) of the Comelec Rules of Procedure mandates that the notice of appeal
must be filed within five (5) days after promulgation of the decision, thus:

SEC. 3. 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.

Moreover, Sections 3 and 4, Rule 40 of the Comelec rules require the
payment of appeal fees in appealed election protest cases, the amended amount
of which was set atP3,200.00 in Comelec Minute Resolution No. 02-0130,
[11]
to
wit:

SEC. 3. Appeal Fees. The appellant in election cases shall pay an appeal fee as
follows:
(a) For election cases appealed from Regional Trial Courts.P3,000.00 (per
appellant)
(b) For election cases appealed from courts of limited
jurisdiction..P3,000.00 (per appellant)

SEC. 4. Where and When to Pay. The fees prescribed in Sections 1, 2 and 3
hereof shall be paid to, and deposited with, the Cash Division of the Commission within
a period to file the notice of appeal.

Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC
[12]
also provide the
procedure for instituting an appeal and the required appeal fees to be paid for
the appeal to be given due course, to wit:

SEC. 8. Appeal. An aggrieved party may appeal the decision to the Commission
on Elections, within five days after promulgation, by filing a notice of appeal with the
court that rendered the decision, with copy served on the adverse counsel or party if
not represented by counsel.

SEC. 9. Appeal fee. The appellant in an election contest shall pay to the court
that rendered the decision an appeal fee of One Thousand Pesos (P1,000.00),
simultaneously with the filing of the notice of appeal.

A reading of the foregoing provisions reveals that two different tribunals
(the trial court that rendered the decision and the Comelec) require the payment
of two different appeal fees for the perfection of appeals of election cases. This
requirement in the payment of appeal fees had caused much confusion, which
the Comelec addressed through the issuance of Comelec Resolution No.
8486.
[13]
Thus, to provide clarity and to erase any ambiguity in the
implementation of the procedural rules on the payment of appeal fees for the
perfection of appeals of election cases, the resolution provides:

WHEREAS, the Commission on Elections is vested with appellate
jurisdiction over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, and those involving elective barangay
officials, decided by trial courts of limited jurisdiction;

WHEREAS, Supreme Court Administrative Order No. 07-4-15 (Rules of
Procedure in Election Contests Before the Courts Involving Elective Municipal
and Barangay Officials) promulgated on May 15, 2007 provides in Sections 8
and 9, Rule 14 thereof the procedure in instituting the appeal and the required
appeal fees to be paid for the appeal to be given due course, to wit:

Section 8. Appeal. An aggrieved party may appeal the decision to the
Commission on Elections, within five days after promulgation, by filing a
notice of appeal with the court that rendered the decision, with copy
served on the adverse counsel or party if not represented by counsel.

Section 9. Appeal Fee. The appellant in an election contest shall pay
to the court that rendered the decision an appeal fee of One Thousand
Pesos (P1,000.00), simultaneously with the filing of the notice of appeal.

WHEREAS, payment of appeal fees in appealed election protest cases is
also required in Section 3, Rule 40 of the COMELEC Rules of Procedure the
amended amount of which was set atP3,200.00 in COMELEC Minute
Resolution No. 02-0130 made effective on September 18, 2002.

WHEREAS, the requirement of these two appeal fees by two different
jurisdictions had caused confusion in the implementation by the Commission
on Elections of its procedural rules on payment of appeal fees for the
perfection of appeals of cases brought before it from the Courts of General
and Limited Jurisdictions.

WHEREAS, there is a need to clarify the rules on compliance with the
required appeal fees for the proper and judicious exercise of the Commissions
appellate jurisdiction over election protest cases.

WHEREFORE, in view of the foregoing, the Commission
hereby RESOLVES to DIRECT as follows:

1. That if the appellant had already paid the amount of P1,000.00
before the Regional Trial Court, Metropolitan Trial Court, Municipal
Trial Court or lower courts within the five-day period, pursuant to
Section 9, Rule 14 of the Rules of Procedure in Election Cases Before
the Courts Involving Elective Municipal and Barangay Officials
(Supreme Court Administrative Order No. 07-4-15) and his Appeal was
given due course by the Court, said appellant is required to pay the
Comelec appeal fee of P3,200.00 at the Commissions Cash Division
through the Electoral Contests Adjudication Department (ECAD) or by
postal money order payable to the Commission on Elections through
ECAD, within a period of fifteen days (15) from the time of the filing of
the Notice of Appeal with the lower court. If no payment is made
within the prescribed period, the appeal shall be dismissed pursuant to
Section 9(a) of Rule 22 of the COMELEC Rules of Procedure, which
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 correct appeal fee; xxx

2. That if the appellant failed to pay the P1,000.00 appeal fee with
the lower court within the five (5) day period as prescribed by the
Supreme Court New Rules of Procedure but the case was nonetheless
elevated to the Commission, the appeal shall be dismissed outright by
the Commission, in accordance with the aforestated Section 9(a) of
Rule 22 of the Comelec Rules of Procedure.

The Education and Information Department is directed to cause the
publication of this resolution in two (2) newspapers of general circulation.

This resolution shall take effect on the seventh day following its publication.

SO ORDERED.

Our ruling in the very recent case of Aguilar v. Comelec,
[14]
quoted
hereunder, squarely applies to the instant case:

Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC provide for the following
procedure in the appeal to the COMELEC of trial court decisions in election protests
involving elective municipal andbarangay officials:

SEC. 8. Appeal. An aggrieved party may appeal the decision to the
Commission on Elections, within five days after promulgation, by filing a notice of
appeal with the court that rendered the decision, with copy served on the
adverse counsel or party if not represented by counsel.

SEC. 9. Appeal fee. The appellant in an election contest shall pay to the
court that rendered the decision an appeal fee of One Thousand Pesos
(P1,000.00), simultaneously with the filing of the notice of appeal.

Section 8 was derived from Article IX-C, Section 2(2) of the Constitution and
Rule 40, Section 3, par. 1 and Rule 41, Section 2(a) of the Rules of Court. Section 9 was
taken from Rule 141, Sections 7(1) and 8(f) of the Rules of Court.

It should be noted from the afore-quoted sections of the Rule that the appeal
fee of P1,000.00 is paid not to the COMELEC but to the trial court that rendered the
decision. Thus, the filing of the notice of appeal and the payment of the P1,000.00
appeal fee perfect the appeal, consonant with Sections 10 and 11 of the same
Rule. Upon the perfection of the appeal, the records have to be transmitted to the
Electoral Contests Adjudication Department of the COMELEC within 15 days. The trial
court may only exercise its residual jurisdiction to resolve pending incidents if the
records have not yet been transmitted and before the expiration of the period to
appeal.

With the promulgation of A.M. No. 07-4-15-SC, the previous rule that the
appeal is perfected only upon the full payment of the appeal fee, now pegged
at P3,200.00, to the COMELEC Cash Division within the period to appeal, as stated in
the COMELEC Rules of Procedure, as amended, no longer applies.

It thus became necessary for the COMELEC to clarify the procedural rules on the
payment of appeal fees. For this purpose, the COMELEC issued on July 15, 2008,
Resolution No. 8486, which the Court takes judicial notice of. The resolution pertinently
reads:
xxx xxx xxx
The foregoing resolution is consistent with A.M. No. 07-4-15-SC and the
COMELEC Rules of Procedure, as amended. The appeal to the COMELEC of the trial
courts decision in election contests involving municipal and barangay officials is
perfected upon the filing of the notice of appeal and the payment of the P1,000.00
appeal fee to the court that rendered the decision within the five-day reglementary
period. The non-payment or the insufficient payment of the additional appeal fee
of P3,200.00 to the COMELEC Cash Division, in accordance with Rule 40, Section 3 of the
COMELEC Rules of Procedure, as amended, does not affect the perfection of the appeal
and does not result in outright or ipso facto dismissal of the appeal. Following, Rule
22, Section 9 (a) of the COMELEC Rules, the appeal may be dismissed. And pursuant to
Rule 40, Section 18 of the same rules, if the fees are not paid, the COMELEC may refuse
to take action thereon until they are paid and may dismiss the action or the
proceeding. In such a situation, the COMELEC is merely given the discretion to dismiss
the appeal or not.

Accordingly, in the instant case, the COMELEC First Division, may dismiss
petitioners appeal, as it in fact did, for petitioners failure to pay the P3,200.00 appeal
fee.

Be that as it may, the Court finds that the COMELEC First Division gravely
abused its discretion in issuing the order dismissing petitioners appeal. The Court notes
that the notice of appeal and theP1,000.00 appeal fee were, respectively, filed and paid
with the MTC of Kapatagan, Lanao del Norte on April 21, 2008. On that date, the
petitioners appeal was deemed perfected. COMELEC issued Resolution No. 8486
clarifying the rule on the payment of appeal fees only on July 15, 2008, or almost three
months after the appeal was perfected. Yet, on July 31, 2008, or barely two weeks after
the issuance of Resolution No. 8486, the COMELEC First Division dismissed petitioners
appeal for non-payment to the COMELEC Cash Division of the additional P3,200.00
appeal fee.

Considering that petitioner filed his appeal months before the clarificatory
resolution on appeal fees, petitioners appeal should not be unjustly prejudiced by
COMELEC Resolution No. 8486. Fairness and prudence dictate that the COMELEC First
Division should have first directed petitioner to pay the additional appeal fee in
accordance with the clarificatory resolution, and if the latter should refuse to comply,
then, and only then, dismiss the appeal. Instead, the COMELEC First Division hastily
dismissed the appeal on the strength of the recently promulgated clarificatory
resolution which had taken effect only a few days earlier. This unseemly haste is an
invitation to outrage.

The COMELEC First Division should have been more cautious in dismissing
petitioners appeal on the mere technicality of non-payment of the additional P3,200.00
appeal fee given the public interest involved in election cases. This is especially true in
this case where only one vote separates the contending parties. The Court stresses
once more that election law and rules are to be interpreted and applied in a liberal
manner so as to give effect, not to frustrate, the will of the electorate.

WHEREFORE, premises considered, the petition for certiorari is GRANTED. The
July 31, September 4 and October 6, 2008 Orders and the October 16 2008 Entry of
Judgment issued by the COMELEC First Division in EAC (BRGY) No. 211-2008
are ANNULLED and SET ASIDE. The case is REMANDED to the COMELEC First Division
for disposition in accordance with this Decision.

SO ORDERED. (Emphasis supplied)

From the foregoing discussion, it is clear that the appeal from the trial court
decision to the Comelec is perfected upon the filing of the notice of appeal and
the payment of the P1,000.00 appeal fee to the trial court that rendered the
decision. With the promulgation of A.M. No. 07-4-15-SC, the perfection of the
appeal no longer depends solely on the full payment of the appeal fee to the
Comelec.

In the instant case, when petitioner filed his Notice of Appeal and paid the
appeal fee of P3,015.00 to the RTC on January 10, 2008, his appeal was deemed
perfected. However, Comelec Resolution No. 8486 also provides that if the
appellant had already paid the amount of P1,000.00 before the trial court that
rendered the decision, and his appeal was given due course by the court, said
appellant is required to pay the Comelec appeal fee of P3,200.00 to the Comelecs
Cash Division through the Electoral Contests Adjudication Department (ECAD) or
by postal money order payable to the Comelec, within a period of fifteen (15)
days from the time of the filing of the Notice of Appeal with the lower
court. However, if no payment is made within the prescribed period, the appeal
shall be dismissed pursuant to Section 9 (a), Rule 22 of the Comelec Rules of
Procedure, which 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 correct appeal fee; xxx

Thus, when petitioners appeal was perfected on January 10, 2008, within
five (5) days from promulgation, his non-payment or insufficient payment of the
appeal fee to the Comelec Cash Division should not have resulted in the outright
dismissal of his appeal. The Comelec Rules provide in Section 9 (a), Rule 22, that
for failure to pay the correct appeal fee, the appeal may be dismissed upon
motion of either party or at the instance of the Comelec. Likewise, Section 18,
Rule 40
[15]
thereof also prescribes that if the fees are not paid, the Comelec may
refuse to take action on the appeal until the said fees are paid and may dismiss
the action or the proceeding.

Here, petitioner paid P1,200.00 to the Comelec on February 14,
2008. Unfortunately, the Comelec First Division dismissed the appeal on March
17, 2008 due to petitioners failure to pay the correct appeal fee within the five-
day reglementary period. In denying petitioners motion for reconsideration, the
Comelec En Banc, in the Resolution datedJanuary 21, 2009, declared that the
Comelec did not acquire jurisdiction over the appeal because of the non-payment
of the appeal fee on time.

However, during the pendency of petitioners Motion for Reconsideration
dated March 27, 2008, the Comelec promulgated Resolution No. 8486 to clarify
the implementation of the Comelec Rules regarding the payment of filing
fees. Thus, applying the mandated liberal construction of election laws,
[16]
the
Comelec should have initially directed the petitioner to pay the correct appeal fee
with the Comelec Cash Division, and should not have dismissed outright
petitioners appeal. This would have been more in consonance with the intent of
the said resolution which sought to clarify the rules on compliance with the
required appeal fees.

In Barroso v. Ampig, Jr.,
[17]
we ruled, thus:

xxx An election contest, unlike an ordinary civil action, is clothed with a public
interest. The purpose of an election protest is to ascertain whether the candidate
proclaimed by the board of canvassers is the lawful choice of the people. What is
sought is the correction of the canvass of votes, which was the basis of proclamation of
the winning candidate. An election contest 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 electorate. And the court has the corresponding duty to ascertain by
all means within its command who is the real candidate elected by the people.

Moreover, the Comelec Rules of Procedure are subject to a liberal
construction. This liberality is for the purpose of promoting the effective and efficient
implementation of the objectives of ensuring the holding of free, orderly, honest,
peaceful and credible elections and for achieving just, expeditious and inexpensive
determination and disposition of every action and proceeding brought before the
Comelec. Thus we have declared:

It has been frequently decided, and it may be stated as a general rule
recognized by all courts, that statutes providing for election contests are to be
liberally construed to the end that the will of the people in the choice of public
officers may not be defeated by mere technical objections. An election
contest, unlike an ordinary action, is imbued with public interest since it
involves not only the adjudication of the private interests of rival candidates
but also the paramount need of dispelling the uncertainty which beclouds the
real choice of the electorate with respect to who shall discharge the
prerogatives of the office within their gift. Moreover, it is neither fair nor just
to keep in office for an uncertain period one whose right to it is under
suspicion. It is imperative that his claim be immediately cleared not only for
the benefit of the winner but for the sake of public interest, which can only be
achieved by brushing aside technicalities of procedure which protract and
delay the trial of an ordinary action.

WHEREFORE, the petition is granted. The Order dated March 17, 2008 of
the Comelec First Division and the Resolution dated January 21, 2009 of the
Comelec En Banc in EAC No. A-13-2008 are ANNULLED and SET
ASIDE. Accordingly, let the case be REMANDED to the Comelec First Division for
further proceedings, in accordance with the rules and with this disposition. The
Regional Trial Court, Branch 27 of Catbalogan, Samar is DIRECTED to refund to
petitioner Constancio D. Pacanan, Jr., the amount of Two Thousand Pesos
(P2,000.00) as the excess of the appeal fee per Official Receipt No. 6822663 paid
on January 10, 2008.

SO ORDERED.



TERESITA J. LEONARDO-DE CASTRO
Associate Justice




WE CONCUR:



REYNATO S. PUNO
Chief Justice



LEONARDO A. QUISUMBING
Associate Justice


(On official leave)
CONSUELO YNARES-SANTIAGO
Associate Justice



ANTONIO T. CARPIO
Associate Justice



RENATO C. CORONA
Associate Justice



CONCHITA CARPIO MORALES
Associate Justice



MINITA V. CHICO-NAZARIO
Associate Justice




PRESBITERO J. VELASCO, JR.
Associate Justice



(No part)
ANTONIO EDUARDO B. NACHURA
Associate Justice





ARTURO D. BRION
Associate Justice

DIOSDADO M. PERALTA
Associate Justice








LUCAS P. BERSAMIN
Associate Justice








MARIANO C. DEL CASTILLO
Associate Justice




ROBERTO A. ABAD
Associate Justice







C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court.



REYNATO S. PUNO
Chief Justice



*
On official leave.
**
No part.
[1]
Rollo, p. 32.
[2]
Id. at 34-42.
[3]
Id. at 43-128.
[4]
Id. at 129-139.
[5]
Id. at 140-149.
[6]
Supra note 3.
[7]
Footnote 3 of the Order dated March 17, 2008 of the Comelec First Division, supra note 1.
[8]
Supra note 1.
[9]
Rollo, pp. 150-164.
[10]
Supra note 2.
[11]
Effective on September 18, 2002 which prescribes P3,000.00 as appeal fee plus P150.00 for bailiffs fee
and P50.00 for legal research fee.
[12]
Entitled Rules of Procedure in Election Contests before the Courts Involving Elective Municipal and
Barangay Officials, promulgated on April 24, 2007, and became effective on May 15, 2007.
[13]
Entitled In the Matter of Clarifying the Implementation of COMELEC Rules Re: Payment of Filing
Fees for Appealed Cases Involving Barangay and Municipal Elective Positions from the Municipal Trial Courts,
Municipal Circuit Trial Courts, Metropolitan Trial Courts and Regional Trial Courts, promulgated on July 15,
2008.
[14]
G.R. No. 185140, June 30, 2009.
[15]
Rule 40, Sec. 18 of the Comelec Rules of Procedure provides:
Sec. 18. Non-payment of Prescribed Fees. If the fees above prescribed are not paid, Commission may
refuse to take action thereon until they are paid and may dismiss the action or the proceeding.
[16]
Section 3, Rule 1, Comelec Rules of Procedure which reads:
SEC. 3. Construction. These rules shall be liberally construed in order to promote the effective and efficient
implementation of the objectives of ensuring the holding of free, orderly, hones, peaceful and credible elections and
to achieve just, expeditious and inexpensive determination and disposition of every action and proceeding brought
before the Commission.
[17]
G.R. No. 138218, March 17, 2000, 328 SCRA 530, 541-542; citing Pahilan v. Tabalba, G.R. No.
110170, February 21, 1994, 230 SCRA 205, 212-213.


Republic of the Philippines
Supreme Court
Manila

EN BANC

SALVADOR D. VIOLAGO, SR.,
Petitioner,








- versus -

G.R. No. 194143

Present:

CORONA, C.J.,
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,







COMMISSION ON ELECTIONS
and JOAN V. ALARILLA,
Respondents.
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.

Promulgated:

October 4, 2011
x---------------------------------------------------------------------------------------x

DECISION

PERALTA, J .:


Before the Court is a special civil action for certiorari under Rule 65 of the Rules of
Court seeking to set aside the August 12, 2010 Order of the 2
nd
Division of the
Commission on Elections (COMELEC) and the Order of the COMELEC en
banc dated September 21, 2010 in EPC No. 2010-23. The August 12, 2010 Order
dismissed the election protest filed by herein petitioner against herein private
respondent, while the September 21, 2010 Order denied petitioners Motion for
Reconsideration.

The factual and procedural antecedents of the case are as follows:

Herein petitioner and private respondent were candidates for the mayoralty race
during the May 10, 2010 elections in the City of Meycauayan, Bulacan. Private
respondent was proclaimed the winner.

On May 21, 2010, petitioner filed a Petition
1
with the COMELEC questioning the
proclamation of private respondent on the following grounds: (1) massive vote-
buying; (2) intimidation and harassment; (3) election fraud; (4) non-appreciation by
the Precinct Count Optical Scan (PCOS) machines of valid votes cast during the said
election; and, (5) irregularities due to non-observance of the guidelines set by the
COMELEC.

On June 15, 2010, private respondent filed her Answer with Motion to Set for Hearing
Affirmative Defenses in the Nature of a Motion to Dismiss for Being Insufficient in
Form and Substance.
2


Thereafter, on July 16, 2010, the COMELEC 2
nd
Division issued an Order
3
setting the
preliminary conference on August 12, 2010 and directing the parties to file their
Preliminary Conference Briefs at least one (1) day before the scheduled conference.

On August 11, 2010, private respondent filed her Preliminary Conference Brief.
4

Petitioner, on the other hand, filed his Brief
5
on the day of the scheduled preliminary
conference. He, likewise, filed an Urgent Motion to Reset Preliminary Conference on
the ground that he did not receive any notice and only came to know of it when he
inquired with the COMELEC a day before the scheduled conference. Petitioner also
claimed that on the date set for the preliminary conference, his counsel and his
associate were scheduled to appear before different tribunals in connection with other
cases they were handling.
6
Subsequently, petitioner and his counsel failed to appear
during the actual conference on August 12, 2010. On even date, private respondents
counsel moved for the dismissal of the case.

In its assailed Order
7
dated August 12, 2010, the COMELEC 2
nd
Division dismissed
petitioners protest on the ground that the latter belatedly filed his Brief in violation of
the COMELEC rule on the filing of briefs.

On August 19, 2010, petitioner filed a Motion for Reconsideration
8
with the
COMELEC en banc contending that it was only on August 16, 2010 that he received a
copy of the Order of the COMELEC which set the preliminary conference on August
12, 2010.

In its second assailed Order
9
dated September 21, 2010, the COMELEC en
banc denied petitioners Motion for Reconsideration on the ground that petitioner
failed to file a verified motion in violation of Section 3, Rule 19 of the COMELEC
Rules of Procedure.

Hence, the present petition based on the following grounds:


4. No notice of preliminary conference hearing was sent to petitioner before the
August 12, 2010 hearing.

2. The COMELEC did not exercise sound judicial discretion when it
denied the Motion for Reconsideration.

3. Petitioner is totally blameless and the COMELEC committed undue
haste and speed in disposing the case.

4. The denial of the MR, although within the discretion of the
COMELEC, was not based on sound judicial discretion.
10



Petitioners basic contention is that the COMELEC 2
nd
Division and the
COMELEC en banc committed grave abuse of discretion in dismissing his electoral
protest and in denying his motion for reconsideration, respectively.

The Court finds the petition meritorious.

The COMELEC 2
nd
Divisions reason for dismissing petitioners election protest is
the latters failure to timely file his Preliminary Conference Brief.

However, a perusal of the records of the instant case would show that petitioner was
able to present a copy of the Certification
11
issued by the Postmaster of Meycauayan
City, Bulacan, attesting to the fact that the Order sent by the COMELEC to
petitioners counsel informing the latter of the scheduled hearing set on August 12,
2010 and directing him to file his Preliminary Conference Brief was received only on
August 16, 2010. Petitioner likewise submitted an advisory issued by the Chief of the
Operations Division of the TELECOM Office in Meycauayan that the telegraph
service in the said City, through which the COMELEC also supposedly sent petitioner
a notice through telegram, has been terminated and the office permanently closed and
transferred to Sta. Maria, Bulacan as of April 1, 2009.
12
Respondent did not question
the authenticity of these documents.

On the basis of the abovementioned documents, the Court finds no justifiable reason
why the COMELEC 2
nd
Division hastily dismissed petitioners election protest. There
is no indication that the COMELEC 2
nd
Division made prior verification from the
proper or concerned COMELEC department or official of petitioners allegation that
he did not receive a copy of the subject Order. In fact, it was only on the day
following such dismissal that the Electoral Contests Adjudication Department,
through the 2
nd
Division Clerk, sent a letter to the Postmaster of Meycauayan City,
Bulacan requesting for a certification as to the date of receipt of the said Order stating
therein that the certification is urgently needed for the proper and appropriate
disposition
13
of petitioners election protest. Fairness and prudence dictate that the
COMELEC 2
nd
Division should have first waited for the requested certification before
deciding whether or not to dismiss petitioners protest on technical grounds.

Petitioner should not be penalized for belatedly filing his Preliminary Conference
Brief. While it may be argued that petitioner acquired actual knowledge of the
scheduled conference a day prior to the date set through means other than the official
notice sent by the COMELEC, the fact remains that, unlike his opponent, he was not
given sufficient time to thoroughly prepare for the said conference. A one-day delay,
as in this case, does not justify the outright dismissal of the protest based on technical
grounds where there is no indication of intent to violate the rules on the part of
petitioner and the reason for the violation is justifiable. Thus, the COMELEC
2
nd
Division committed grave abuse of discretion in dismissing petitioners protest.

With respect to the COMELEC en bancs denial of petitioners Motion for
Reconsideration, it is true that Section 3, Rule 20 of the COMELEC Rules of
Procedure on Disputes in an Automated Election System,
14
as well as Section 3, Rule
19 of the COMELEC Rules of Procedure, clearly require that a motion for
reconsideration should be verified. However, the settled rule is that the COMELEC
Rules of Procedure are subject to liberal construction.

In Quintos v. Commission on Elections,
15
this Court held that the alleged lack of
verification of private respondents Manifestation and Motion for Partial
Reconsideration is merely a technicality that should not defeat the will of the
electorate. The COMELEC may liberally construe or even suspend its rules of
procedure in the interest of justice, including obtaining a speedy disposition of all
matters pending before the COMELEC.
16


In the same manner, this Court, in the case of Panlilio v. Commission on
Elections,
17
restated the prevailing principle that the COMELECs rules of procedure
for the verification of protests and certifications of non-forum shopping should be
liberally construed.

In Pacanan v. Commission on Elections,
18
this Court, in clarifying the mandated
liberal construction of election laws, held thus:

x x x An election contest, unlike an ordinary civil action, is clothed with
a public interest. The purpose of an election protest is to ascertain
whether the candidate proclaimed by the board of canvassers is the
lawful choice of the people. What is sought is the correction of the
canvass of votes, which was the basis of proclamation of the winning
candidate. An election contest 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 electorate.
And the court has the corresponding duty to ascertain, by all means
within its command, who is the real candidate elected by the people.

Moreover, the Comelec Rules of Procedure are subject to a liberal
construction. This liberality is for the purpose of promoting the effective
and efficient implementation of the objectives of ensuring the holding of
free, orderly, honest, peaceful and credible elections and for achieving
just, expeditious and inexpensive determination and disposition of every
action and proceeding brought before the Comelec. Thus, we have
declared:

It has been frequently decided, and it may be stated as a
general rule recognized by all courts, that statutes providing
for election contests are to be liberally construed to the end
that the will of the people in the choice of public officers
may not be defeated by mere technical objections. An
election contest, unlike an ordinary action, is imbued with
public interest since it involves not only the adjudication of
the private interests of rival candidates but also the
paramount need of dispelling the uncertainty which
beclouds the real choice of the electorate with respect to
who shall discharge the prerogatives of the office within
their gift. Moreover, it is neither fair nor just to keep in
office for an uncertain period one whos right to it is under
suspicion. It is imperative that his claim be immediately
cleared not only for the benefit of the winner but for the
sake of public interest, which can only be achieved by
brushing aside technicalities of procedure which protract
and delay the trial of an ordinary action.
19


This principle was reiterated in the more recent consolidated cases of Tolentino v.
Commission on Elections,
20
and De Castro v. Commission on Elections,
21
where the
Court held that in exercising its powers and jurisdiction, as defined by its mandate to
protect the integrity of elections, the COMELEC must not be straitjacketed by
procedural rules in resolving election disputes.

In the present case, notwithstanding the fact that petitioners motion for
reconsideration was not verified, the COMELEC en banc should have considered the
merits of the said motion in light of petitioners meritorious claim that he was not
given timely notice of the date set for the preliminary conference. The essence of due
process is to be afforded a reasonable opportunity to be heard and to submit any
evidence in support of ones claim or defense.
22
It is the denial of this opportunity that
constitutes violation of due process of law.
23
More particularly, procedural due process
demands prior notice and hearing.
24
As discussed above, the fact that petitioner
somehow acquired knowledge or information of the date set for the preliminary
conference by means other than the official notice sent by the COMELEC is not an
excuse to dismiss his protest, because it cannot be denied that he was not afforded
reasonable notice and time to adequately prepare for and submit his brief. This is
precisely the reason why petitioner was only able to file his Preliminary Conference
Brief on the day of the conference itself. Petitioners counsel may not likewise be
blamed for failing to appear during the scheduled conference because of prior
commitments and for, instead, filing an Urgent Motion to Reset Preliminary
Conference.

Hence, by denying petitioners motion for reconsideration, without taking into
consideration the violation of his right to procedural due process, the COMELEC en
banc is also guilty of grave abuse of discretion.

WHEREFORE, the petition for certiorari is GRANTED. The Order of the
COMELEC 2
nd
Division dated August 12, 2010, as well as the Order of the
COMELEC en banc dated September 21, 2010, in EPC No. 2010-23
are REVERSED and SET ASIDE. Petitioners election protest is REINSTATED.
The COMELEC 2
nd
Division is hereby DIRECTED to continue with the proceedings
in EPC No. 2010-23 and to resolve the same with dispatch.

SO ORDERED.



DIOSDADO M. PERALTA
Associate Justice



RENATO C. CORONA
Chief Justice





ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice



TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice




LUCAS P. BERSAMIN MARIANO C. DEL CASTILLO
Associate Justice Associate Justice



ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.
Associate Justice Associate Justice





JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA
Associate Justice Associate Justice




MARIA LOURDES P. A. SERENO BIENVENIDO L. REYES
Associate Justice Associate Justice




ESTELA M. PERLAS-BERNABE
Associate Justice
\

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that
the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court.



RENATO C. CORONA
Chief Justice


Republic of the Philippines
Supreme Court
Manila
EN BANC

DOUGLAS R. CAGAS,
Petitioner,








-versus-








G.R. No. 194139

Present:

CORONA, C.J.,
CARPIO,
VELASCO, JR.,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA,
SERENO,
REYES, and
PERLAS-BERNABE, JJ.

Promulgated:
THE COMMISSION ON
ELECTIONS, AND
CLAUDE P. BAUTISTA,
Respondents.

January 24, 2012
x-----------------------------------------------------------------------------------------x

D E C I S I O N

BERSAMIN, J .:


A party aggrieved by an interlocutory order issued by a Division of the Commission
on Elections (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.

For resolution is the petition for certiorari brought under Rule 64 of the Rules
of Court, assailing the order dated August 13, 2010 (denying the affirmative defenses
raised by the petitioner),
1
and the order dated October 7, 2010 (denying his motion for
reconsideration),
2
both issued by the COMELEC First Division in EPC No. 2010-42,
an election protestentitled Claude P. Bautista, protestant v. Douglas R. Cagas,
protestee.
3


Antecedents

The petitioner and respondent Claude P. Bautista (Bautista) contested the position of
Governor of the Province of Davao del Sur in the May 10, 2010 automated national
and local elections. The fast transmission of the results led to the completion by May
14, 2010 of the canvassing of votes cast for Governor of Davao del Sur, and the
petitioner was proclaimed the winner (with 163,440 votes), with Bautista garnering
159,527 votes.
4


Alleging fraud, anomalies, irregularities, vote-buying and violations of election laws,
rules and resolutions, Bautista filed an electoral protest on May 24, 2010 (EPC No.
2010-42).
5
The protest was raffled to the COMELEC First Division.

In his answer submitted on June 22, 2010,
6
the petitioner averred as his special
affirmative defenses that Bautista did not make the requisite cash deposit on time; and
that Bautista did not render a detailed specification of the acts or omissions
complained of.

On August 13, 2010, the COMELEC First Division issued the first assailed
order denying the special affirmative defenses of the petitioner,

7
viz:


After careful examination of the records of the case, this
Commission (First Division) makes the following observation:

1. Protestant paid the cash deposit amounting to one hundred thousand
pesos (P100,000.00) on June 3, 2010 as evidenced by O.R. No.
1118105; and

2. Paragraph nos. 9 to 28 of the initiatory petition filed by the
Protestant set forth the specific details of the acts and omissions
complained of against the Protestee.

It is therefore concluded that the payment by the Protestant on June
3, 2010 is a substantial compliance with the requirement of COMELEC
Resolution No. 8804, taking into consideration Section 9(e), Rule 6 of
said Resolution. Furthermore, the Protestant has likewise essentially
complied with Section 7(g), Rule 6 of the above-mentioned
Resolution.

In view of the foregoing, this Commission (First Division)
RESOLVES to DENY the Protestees special affirmative defenses.

SO ORDERED.
8


The petitioner moved to reconsider on the ground that the order did not discuss
whether the protest specified the alleged irregularities in the conduct of the elections,
in violation of Section 2, paragraph 2,
9
Rule 19 of COMELEC Resolution No.
8804,
10
requiring all decisions to clearly and distinctly express the facts and the law on
which they were based; and that it also contravened Section 7(g),

11
Rule 6 of
COMELEC Resolution No. 8804 requiring a detailed specification of the acts or
omissions complained of. He prayed that the matter be certified to the COMELEC en
banc pursuant to Section 1,
12
Section 5,
13
and Section 6,
14
all of Rule 20 of COMELEC
Resolution No. 8804.

The petitioner insisted that COMELEC Resolution No. 8804 had introduced the
requirement for the detailed specification to prevent shotgun fishing expeditions by
losing candidates;
15
that such requirement contrasted with Rule 6, Section 1 of the
1993 COMELEC Rules of Procedure,
16
under which the protest needed only to contain
a concise statement of the ultimate facts constituting the cause or causes of action;
that Bautistas protest did not meet the new requirement under COMELEC Resolution
No. 8804; and that inPea v. House of Representatives Electoral Tribunal,
17
the Court
upheld the dismissal of a protest by the House of Representatives Electoral Tribunal
(HRET) for not specifically alleging the electoral anomalies and irregularities in the
May 8, 1995 elections.

In his opposition,
18
Bautista countered that the assailed orders, being merely
interlocutory, could not be elevated to the COMELEC en banc pursuant to the ruling
in Panlilio v. COMELEC;
19
that the rules of the COMELEC required the initiatory
petition to specify the acts or omissions constituting the electoral frauds, anomalies
and election irregularities, and to contain the ultimate facts upon which the cause of
action was based; and that Pea v. House of Representatives Electoral Tribunal did
not apply because, firstly, Pea had totally different factual antecedents than this case,
and, secondly, the omission of material facts from Peas protest prevented the
protestee (Alfredo E. Abueg, Jr.) from being apprised of the issues that he must meet
and made it eventually impossible for the HRET to determine which ballot boxes had
to be collected.

On October 7, 2010, the COMELEC First Division issued its second assailed
order,
20
denying the petitioners motion for reconsideration for failing to show that the
first order was contrary to law, to wit:

The Protestees August 28, 2010 Motion for Reconsideration with
Prayer to Certify the Case to the Commission En Banc relative to the
Order issued by the Commission (First Division) dated August 13, 2010
is hereby DENIED for failure to show that the assailed order is contrary
to law

Without going into the merits of the protest, the allegations in
the protestants petition have substantially complied with the
requirements of COMELEC Resolution No. 8804 that will warrant
the opening of the ballot boxes in order to resolve not only the issues
raised in the protest but also those set forth in the Protestees
answer. When substantial compliance with the rules is satisfied,
allowing the protest to proceed is the best way of removing any
doubt or uncertainty as to the true will of the electorate. All other
issues laid down in the parties pleadings, including those in the
Protestees special and affirmative defenses and those expressed in
the preliminary conference brief, will best be threshed out in the
final resolution of the instant case.

The prayer to elevate the instant Motion for Reconsideration to
the Commission En Banc is DENIED considering that the 13 August
2010 Order is merely interlocutory and it does not dispose of the
instant case with finality, in accordance with Section 5(c), Rule 3 of
the COMELEC Rules of Procedure.

SO ORDERED.

Not satisfied, the petitioner commenced this special civil action directly in this
Court.

Issue

The petitioner submits that:

THE RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN REFUSING TO DISMISS THE PROTEST FOR
INSUFFICIENCY IN FORM AND CONTENT.

The petitioner argues that Section 9,
21
Rule 6 of COMELEC Resolution No.
8804 obliged the COMELEC First Division to summarily dismiss the protest for being
insufficient in form and content; and that the insufficiency in substance arose from the
failure of the protest to: (a) specifically state how the various irregularities and
anomalies had affected the results of the elections; (b) indicate in which of the
protested precincts were pre-shaded bogus-ballots used; (c) identify the precincts
where the PCOS machines had failed to accurately account for the votes in favor of
Bautista; and (d) allege with particularity how many additional votes Bautista stood to
receive for each of the grounds he protested. He concludes that the COMELEC First
Division gravely abused its discretion in allowing the protest of Bautista despite its
insufficiency.

Moreover, the petitioner urges that the protest be considered as a mere fishing
expedition to be outrightly dismissed in light of the elections being held under an
automated system. In support of his urging, he cites Roque, Jr. v. Commission on
Elections,
22
where the Court took judicial notice of the accuracy and reliability of the
PCOS machines and CCS computers, such that allegations of massive errors in the
automated counting and canvassing had become insufficient as basis for the
COMELEC to entertain or to give due course to defective election protests.
23
He
submits that a protest like Bautistas cast doubt on the automated elections.

On the other hand, the Office of the Solicitor General (OSG) and Bautista both
posit that the COMELEC had the power and prerogative to determine the sufficiency
of the allegations of an election protest; and that certiorari did not lie because the
COMELEC First Division acted within its discretion. Additionally, the OSG
maintains that the assailed orders, being interlocutory, are not the proper subjects of a
petition for certiorari.

As we see it, the decisive issue is whether the Court can take cognizance of the
petition for certiorari.

Ruling

We dismiss the petition for lack of merit.

The governing provision is Section 7, Article IX of the 1987 Constitution,
which provides:

Section 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.


This provision, although it confers on the Court the power to review any
decision, order or ruling of the COMELEC, limits such power to a final decision or
resolution of the COMELEC en banc, and does not extend to an interlocutory order
issued by a Division of the COMELEC. Otherwise stated, the Court has no power to
review on certiorari an interlocutory order or even a final resolution issued by a
Division of the COMELEC. The following cogent observations made in Ambil v.
Commission on Elections
24
are enlightening,viz:

To begin with, the power of the Supreme Court to review decisions
of the Comelec is prescribed in the Constitution, as follows:

Section 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 supplied]

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 bancdecision may be brought
to the Supreme Court on certiorari. The pre-requisite filing of a
motion for reconsideration is mandatory.xxx
25


There is no question, therefore, that the Court has no jurisdiction to take
cognizance of the petition for certiorari assailing the denial by the COMELEC First
Division of the special affirmative defenses of the petitioner. The proper remedy is for
the petitioner to wait for the COMELEC First Division to first decide the protest on its
merits, and if the result should aggrieve him, to appeal the denial of his special
affirmative defenses to the COMELEC en banc along with the other errors committed
by the Division upon the merits.
It is true that there may be an exception to the general rule, as the Court
conceded in Kho v. Commission on Elections.
26
In that case, the protestant assailed the
order of the COMELEC First Division admitting an answer with counter-
protest belatedly filed in an election protest by filing a petition for certiorari directly
in this Court on the ground that the order constituted grave abuse of discretion on the
part of the COMELEC First Division. The Court granted the petition and nullified the
assailed order for being issued without jurisdiction, and explained the exception
thuswise:


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 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. Section 5 (c), Rule 3 of the COMELEC
Rules of Procedure explicitly provides for this,

Sec. 5. Quorum; Votes Required xxx
xxx
(c) Any motion to reconsider a decision, resolution, order or
ruling of a Division shall be resolved by the Commission en
banc except motions on interlocutory orders of the division
which shall be resolved by the division which issued the order.
(emphasis provided)

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. (Bold emphasis
supplied)

Under the exception, therefore, the Court may take cognizance of a petition
for certiorari under Rule 64 to review an interlocutory order issued by a Division of
the COMELEC on the ground of the issuance being made without jurisdiction or in
excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction when it does not appear to be specifically provided under the
COMELEC Rules of Procedure that the matter is one that the COMELEC en
banc may sit and consider, or a Division is not authorized to act, or the members of
the Division unanimously vote to refer to the COMELEC en banc. Of necessity, the
aggrieved party can directly resort to the Court because the COMELEC en banc is not
the proper forum in which the matter concerning the assailed interlocutory order can
be reviewed.

However, the Kho v. Commission on Elections exception has no application
herein, because the COMELEC First Division had the competence to determine the
lack of detailed specifications of the acts or omissions complained of as required by
Rule 6, Section 7 of COMELEC Resolution No. 8804, and whether such lack called
for the outright dismissal of the protest. For sure, the 1987 Constitution vested in the
COMELEC broad powers involving not only the enforcement and administration of
all laws and regulations relative to the conduct of elections but also the resolution and
determination of election controversies.
27
The breadth of such powers encompasses the
authority to determine the sufficiency of allegations contained in every election
protest and to decide based on such allegations whether to admit the protest and
proceed with the hearing or to outrightly dismiss the protest in accordance with
Section 9, Rule 6 of COMELEC Resolution No. 8804.

The Court has upheld the COMELECs determination of the sufficiency of
allegations contained in election protests, conformably with its imperative duty to
ascertain in an election protest, by all means within its command, who was the
candidate elected by the electorate.
28
Indeed, in Panlilio v. Commission on
Elections,
29
we brushed aside the contention that the election protest was insufficient in
form and substance and was a sham for having allegations couched in general terms,
stating:

In Miguel v. COMELEC, the Court belittled the petitioners
argument that the protestant had no cause of action, as the allegations of
fraud and irregularities, which were couched in general terms, were not
sufficient to order the opening of ballot boxes and counting of ballots.
The Court states the rules in election protests cognizable by the
COMELEC and courts of general jurisdiction, as follows:

The rule in this jurisdiction is clear and jurisprudence is even
clearer. In a string of categorical pronouncements, we have
consistently ruled that when there is an allegation in an election
protest that would require the perusal, examination or counting
of ballots as evidence, it is the ministerial duty of the trial court
to order the opening of the ballot boxes and the examination and
counting of ballots deposited therein.

In a kindred case, Homer Saquilayan v. COMELEC, the Court
considered the allegations in an election protest, similar to those in this
case, as sufficient in form and substance.

Again, in Dayo v. COMELEC, the Court declared that allegations of
fraud and irregularities are sufficient grounds for opening the ballot
boxes and examining the questioned ballots. The pronouncement is in
accordance with Section 255 of the Omnibus Election Code, which
reads:

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

In this case, the COMELEC Second Division found that the
allegations in the protest and counter-protest warranted the opening of
the contested ballot boxes and the examination of their contents to settle
at once the conflicting claims of petitioner and private respondent.

The petitioner adds that with the Court having noted the reliability and
accuracy of the PCOS machines and consolidation/canvassing system (CCS)
computers in Roque, Jr. v. Commission on Elections,
30
Bautistas election protest
assailing the system and procedure of counting and canvassing of votes cast in an
automated system of elections should be immediately dismissed.

We are not persuaded.

Roque, Jr. v. Commission on Elections does not preclude the filing of an
election protest to challenge the outcome of an election undertaken in an automated
system of elections. Instead, the Court only ruled there that the system and procedure
implemented by the COMELEC in evaluating the PCOS machines and CCS
computers met the minimum system requirements prescribed in Section 7 of Republic
Act No. 8436.
31
The Court did not guarantee the efficiency and integrity of the
automated system of elections, as can be gleaned from the following pronouncement
thereat:



The Court, however, will not indulge in the presumption that
nothing would go wrong, that a successful automation election unmarred
by fraud, violence, and like irregularities would be the order of the
moment on May 10, 2010. Neither will it guarantee, as it cannot
guarantee, the effectiveness of the voting machines and the integrity of
the counting and consolidation software embedded in them. That task
belongs at the first instance to Comelec, as part of its mandate to ensure
clean and peaceful elections. This independent constitutional
commission, it is true, possesses extraordinary powers and enjoys a
considerable latitude in the discharge of its functions. The road,
however, towards successful 2010 automation elections would certainly
be rough and bumpy. The Comelec is laboring under very tight
timelines. It would accordingly need the help of all advocates of orderly
and honest elections, of all men and women of goodwill, to smoothen the
way and assist Comelec personnel address the fears expressed about the
integrity of the system. Like anyone else, the Court would like and wish
automated elections to succeed, credibly.
32


In view of the foregoing, we have no need to discuss at length the other
submissions of the petitioner.

ACCORDINGLY, the petition for certiorari is DISMISSED for lack of merit.

SO ORDERED.


LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:




RENATO C. CORONA
Chief Justice


ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice




(On Official Leave)
TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice




No part
DIOSDADO M. PERALTA MARIANO C. DEL CASTILLO
Associate Justice Associate Justice



ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.
Associate Justice Associate Justice




JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA
Associate Justice Associate Justice




MARIA LOURDES P. A. SERENO BIENVENIDO L. REYES
Associate Justice Associate Justice




ESTELA M. PERLAS-BERNABE
Associate Justice

C E R T I F I C A T I O N


Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.


RENATO C. CORONA
Chief Justice
1 Rollo, pp. 34-35.
2 Id., p. 37.
3 Id., pp. 38-77.
4 Id., p. 8.
5 Supra, note 3.
6 Id., pp. 78-95.
7 Supra, note 1.
8 Emphasis supplied.
9 Section 2. Procedure in Making Decisions. The conclusions of the Commission in any case submitted to it for
decision shall be reached in consultation before the case is assigned by raffle to a Member for the writing of the
opinion. A certification to this effect signed by the Chairman or Presiding Commissioner shall be incorporated in the
decision. Any member who took no part or dissented, or abstained from a decision or resolution must state the
reason therefor.
Every decision shall express therein clearly and distinctly the facts and the law on which it is based. In its
decision, the Commission shall be guided by the principle that every ballot is presumed to be valid unless
there is clear and good reason to justify its rejection and that the object of the election is to obtain the true
expression of the voters.
10 In Re: COMELEC Rules of Procedure on Disputes in an Automated Election System in connection with the May
10, 2010 Elections.
11 Section 7. Contents of the protest of petition. An election protest or petition for quo warranto shall specifically
state the following facts:
xxx
g) A detailed specification of the acts or omissions complained of showing the electoral frauds, anomalies or
irregularities in the protested precincts.
12 Section 1. Grounds of Motion for Reconsideration. A motion for reconsideration may be filed on the grounds
that the evidence is insufficient to justify the decision, order or ruling; or that the said decision, is contrary to law.
13 Section 5. How Motion for Reconsideration Disposed of.Upon the filing of a motion to reconsider a decision,
resolution, order or ruling of a Division, the ECAD Clerk concerned shall, within twenty-four (24) hours from the
filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to
the Commission en banc.
14 Section 6. Duty of ECAD Director to Calendar Motion for Resolution.The ECAD Director concerned shall
calendar the motion for reconsideration for the resolution of the Commission en banc within ten days from the
certification thereof.
15 Rollo, p. 120.
16 Section 1. Commencement of Action or Proceedings by Parties.Any natural or juridical person authorized by
these rules to initiate any action or proceeding shall file with the Commission a protest or petition alleging therein
his personal circumstances as well as those of the protestee or respondent, the jurisdictional facts, and a concise
statement of the ultimate facts constituting his cause or causes of action and specifying the relief sought. He may
add a general prayer for such further or other relief as may be deemed just or equitable.
17 G.R. No. 123037, March 21, 1997, 270 SCRA 340.
18 Rollo, pp. 128-138.
19 G.R. No. 181478, July 15, 2009, 593 SCRA 139.
20 Rollo, p. 37 (emphasis supplied).
21 Section 9. Summary dismissal of election contest. The Commission shall summarily dismiss, motu proprio, an
election protest and counter-protest on the following grounds:
xxx
b) The protest is insufficient in form and content as required in Section 7 hereof;
xxx
22 G.R. No. 188456, September 10, 2009, 599 SCRA 69.
23 Rollo, pp. 23-24.
24 G.R. No. 143398, October 25, 2000, 344 SCRA 358, 365-366; reiterated in, among others, Jumamil v.
Commission on Elections, G.R. Nos. 167989-93, March 6, 2007, 517 SCRA 553; Dimayuga v. Commission on
Elections, G.R. No. 174763, April 24, 2007, 522 SCRA 220; Cayetano v. Commission on Elections, G.R. No.
193846, April 12, 2011.
25 Emphasis supplied.
26 G.R. No. 124033, September 25, 1997, 279 SCRA 463, 471-473. See also Repol v. Commission on
Elections, G.R. No. 161418, April 28, 2004, 428 SCRA 321.

27 Dela Llana v. Commission on Elections, G.R. No. 152080, November 28, 2003, 416 SCRA 638.
28 Benito v. Commission on Elections, G.R. No. 106053, August 17, 1994, 235 SCRA 436, 422.
29 Supra, note 19 at pp. 151-153.
30 Supra, note 22.
31 Entitled An Act Authorizing the Commission on Elections to Use an Automated Election System in the May 11,
1998 National or Local Elections and in Subsequent National and Local Electoral Exercises, Providing Funds
Therefor and For Other Purposes.
32 Supra, note 22 at pp. 153-154.







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April-2011
- [G.R. No. 171406, April 04 : 2011]
ASIAN TERMINALS, INC., PETITIONER,
VS. MALAYAN INSURANCE, CO., INC.,
RESPONDENT.

- [G.R. No. 160949, April 04 : 2011]
COMMISSIONER OF INTERNAL
REVENUE, PETITIONER, VS. PL
MANAGEMENT INTERNATIONAL
PHILIPPINES, INC., RESPONDENT.

- [G.R. No. 158362, April 04 : 2011]
PEOPLE OF THE PHILIPPINES,
PLAINTIFF-APPELLEE, VS. GILBERTO
VILLARICO, SR. @ "BERTING",
GILBERTO VILLARICO, JR., JERRY
RAMENTOS, AND RICKY VILLARICO,
ACCUSED-APPELLANTS.

- [G.R. No. 187534, April 04 : 2011]
PEOPLE OF THE PHILIPPINES,
PLAINTIFF-APPELLEE, VS. DIMA
MONTANIR, RONALD NORVA AND
EDUARDO CHUA, ACCUSED-
APPELLANTS.

- [G.R. No. 149193, April 04 : 2011]
RICARDO B. BANGAYAN, PETITIONER,
VS. RIZAL COMMERCIAL BANKING
CORPORATION AND PHILIP SARIA,
RESPONDENTS,

- [G.R. No. 190823, April 04 : 2011]
DOMINGO CARABEO, PETITIONER,
VS.SPOUSES NORBERTO AND SUSAN
DINGCO, RESPONDENTS.

- [A.M. No. P-11-2922 (formerly A.M.


Philippine Supreme Court Jurisprudence > Year 2011 > April 2011 Decisions > [G.R. No. 193846,
April 12 : 2011] MARIA LAARNI L. CAYETANO, PETITIONER, VS. THE COMMISSION ON ELECTIONS
AND DANTE O. TINGA, RESPONDENTS. :








EN BANC

[G.R. No. 193846, April 12 : 2011]

MARIA LAARNI L. CAYETANO, PETITIONER, VS. THE COMMISSION ON ELECTIONS AND DANTE O. TINGA, RESPONDENTS.

R E S O L U T I O N

NACHURA, J.:

Before us is a petition for certiorari under Rule 64, in relation to Rule 65 of the Rules of Court, assailing the Orders issued by public respondent Commission on Elections (COMELEC), through its Second
Division, dated August 23, 2010
[1]
and September 7, 2010,
[2]
respectively. The two Orders were issued in relation to the election protest, docketed as EPC No. 2010-44, filed by private respondent
Dante O. Tinga against petitioner Maria Laarni Cayetano.

In the automated national and local elections held on May 10, 2010, petitioner and private respondent were candidates for the position of Mayor of Taguig City. Petitioner was proclaimed the winner
thereof on May 12, 2010, receiving a total of Ninety-Five Thousand Eight Hundred Sixty-Five (95,865) votes as against the Ninety-Three Thousand Four Hundred Forty-Five (93,445) votes received by
private respondent.

On May 24, 2010, private respondent filed an Election Protest against petitioner before the COMELEC. Private respondent's protest listed election frauds and irregularities allegedly committed by
petitioner, which translated to the latter's ostensible win as Mayor of Taguig City. On the whole, private respondent claims that he is the actual winner of the mayoralty elections in Taguig City.

Posthaste, petitioner filed her Answer with Counter-Protest and Counterclaim on June 7, 2010. Petitioner raised, among others, the affirmative defense of insufficiency in form and content of the
Election Protest and prayed for the immediate dismissal thereof.

On July 1, 2010, the COMELEC held a preliminary conference and issued an Order granting private respondent a period within which to file the appropriate responsive pleading to the Answer of
petitioner. The COMELEC likewise stated that it will rule on the affirmative defenses raised by petitioner.

As previously adverted to, the COMELEC issued the assailed Preliminary Conference Order dated August 23, 2010, finding the protest filed by private respondent and counter-protest filed by petitioner
to be sufficient in form and substance. Effectively, the COMELEC denied petitioner's affirmative defense of insufficiency in form and substance of the protest filed by private respondent. The Order
reads:
WHEREFORE, finding the instant protest and the counter-protest to be sufficient in form and substance, the Commission (Second Division) hereby:

1. DIRECTS [private respondent] to make a cash deposit [of] ONE MILLION SIX HUNDRED NINE THOUSAND FIVE HUNDRED PESOS (P1,609,500.00) to defray the expenses for the recount of
the ballots as well as for other incidental expenses relative thereto pertaining to the 217 clustered protested precincts composed of 1,073 established precinct[s] at the rate of P1,500.00 for
each precinct as required in Section 2 Rule II of COMELEC Resolution No. 8804 payable in three (3) equal installments every twenty (20) days starting within five (5) days from receipt hereof.

2. DIRECTS [petitioner] to make a cash deposit of TWO MILLION EIGHT HUNDRED ELEVEN THOUSAND PESOS (P2,811,000.00) to defray the expenses for the recount of the ballots as well as
for other incidental expenses relative thereto pertaining to the380 protested clustered precinct[s] composed of 1,874 established precincts at the rate of P1,500.00 for each precinct as required
in Section 2[,] Rule II of COMELEC Resolution No. 8804 payable in three (3) equal installments every twenty (20) days starting within five (5) days from receipt hereof.

3. DIRECTS the City Election Officer (EO) of Taguig City, to gather and collect the subject contested ballot boxes containing the ballots, and their keys from the City Treasurer of Taguig City and to
deliver the same to ECAD, COMELEC, Intramuros, Manila, within fifteen (15) days from receipt of the ballot boxes from said Treasurer with prior notice to herein parties who may wish to send their
respective duly authorized representatives to accompany the same, observing strict measures to protect the safety and integrity of the ballot boxes;


OCA IPI No. 03-1778-P), April 04 :
2011] MARY JANE ABANAG,
COMPLAINANT, VS. NICOLAS B.
MABUTE, COURT APRIL 4, 2011
STENOGRAPHER I, MUNICIPAL
CIRCUIT TRIAL COURT (MCTC),
PARANAS, SAMAR, RESPONDENT.

- [G.R. No. 167022, April 04 : 2011]
LICOMCEN INCORPORATED,
PETITIONER, VS. FOUNDATION
SPECIALISTS, INC., RESPONDENT.
[G.R. NO. 169678] FOUNDATION
SPECIALISTS, INC., PETITIONER, VS.
LICOMCEN INCORPORATED,
RESPONDENT.

- [G.R. No. 171497, April 04 : 2011]
MARIA LOURDES TAMANI,
CONCEPCION TAMANI, ESTRELLA
TAMANI, TERESITA TAMANI, AZUCENA
SOLEDAD, DOLORES GUERRERO,
CRISTINA TUGADE DAMIETA
MANSAANG, MANUEL TAMANI,
VALERIANA CASTRO, AURORA
SANTIAGO AND ROSARIO CASTILLO,
PETITIONERS, VS. ROMAN SALVADOR
AND FILOMENA BRAVO,
RESPONDENTS.

- [G. R. No. 164195, April 05 : 2011]
APO FRUITS CORPORATION AND HIJO
PLANTATION, INC., PETITIONERS, VS.
LAND BANK OF THE PHILIPPINES,
RESPONDENT.

- [G.R. No. 178406, April 06 : 2011]
PEOPLE OF THE PHILIPPINES,
PLAINTIFF-APPELLEE, VS. RONALDO
SALUDO, ACCUSED-APPELLANT.

- [G.R. No. 189980, April 06 : 2011]
PEOPLE OF THE PHILIPPINES,
PLAINTIFF-APPELLEE, VS. ALBERTO
BACUS ALCUIZAR, DEFENDANT-
APPELLANT.

- [G.R. No. 169564, April 06 : 2011]
AMES BEN L. JERUSALEM PETITIONER,
VS. KEPPEL MONTE BANK, HOE ENG
HOCK, SUNNY YAP AND JOSEFINA
PICART, RESPONDENTS.

- [A.M. No. P-10-2791 (formerly A.M.
No. 10-3-91-RTC), April 06 : 2011]
JUDGE RENATO A. FUENTES, REGIONAL
TRIAL COURT, BRANCH 17, DAVAO
CITY, COMPLAINANT, VS. ATTY.
ROGELIO F. FABRO, BRANCH CLERK OF
COURT, SAME COURT, RESPONDENT.

- [G.R. No. 170166, April 06 : 2011]
JOE A. ROS AND ESTRELLA AGUETE,
PETITIONERS, VS. PHILIPPINE
NATIONAL BANK - LAOAG BRANCH,
RESPONDENT.

- [A.C. No. 7771, April 06 : 2011]
PATRICIO GONE, COMPLAINANT, VS.
ATTY. MACARIO GA, RESPONDENT.


4. DIRECTS [private respondent] and [petitioner] to provide for the needed vehicle/s to the EO for the gathering and transportation of the subject contested ballot boxes. All expenses for the retrieval
and transportation of the said ballot boxes shall be borne by both [private respondent] and [petitioner];

5. AUTHORIZES the City Election Officer to secure a sufficient number of security personnel either from the PNP or the AFP in connection with the afore-directed gathering and transportation of the
subject ballot boxes;

6. DIRECTS [private respondent] to shoulder the travel expenses, per diems and necessary allowance of the COMELEC personnel, which include the PES and at most two (2) support staff, and the
PNP/AFP personnel acting as security; and

7. DIRECTS the herein parties to shoulder the travelling expenses of their respective counsels and watchers.

8. DIRECTS [private respondent] in the protest proper and [petitioner] in the counter protest to bear the expenses for the rental of the Precinct Count Optical System (PCOS) machine that will be used
for the authentication of the ballots as well as the payment for the information Technology Expert (IT Expert) who will assist in the authentication of the ballots, unless they are both willing to stipulate
on the authenticity of the said ballots cast in connection with the May 10, 2010 National and Local Elections. DIRECTS further that in case [private respondent] agree[s] to stipulate on the authenticity
of the ballots and [petitioner] raises the issue of authenticity, [petitioner] shall be the one to bear the fee for the rent of the PCOS machine as well as the service of the IT Expert.

9. DIRECTS the parties to file a manifestation whether they intend to secure photocopies of the contested ballots within a non-extendible period of five (5) days from receipt of this Order. No belated
request for the photocopying of ballots shall be entertained by this Commission (Second Division). The photocopying shall be done simultaneous with the recount of the ballots considering that the
ballot box storage area is no longer near the recount room.

The pertinent Order for the constitution of Recount Committees and the schedule of recount shall be issued after the arrival of the subject ballot boxes and after the required cash deposits shall have
been paid by [private respondent].

The Preliminary Conference is hereby ordered terminated. The parties are given three (3) days from receipt hereof to file their comment, suggestions or corrections, if any, to this Preliminary
Conference Order. After the lapse of said period, no more comment, suggestion or correction shall be entertained, and this Preliminary Conference Order shall thereafter be valid and binding upon the
parties.
[3]


Thereafter, on August 31, 2010, petitioner filed a Motion for Reconsideration of the Preliminary Conference Order relative to the denial of her affirmative defenses. Private respondent filed a Comment
and Opposition thereto. Consequently, the COMELEC issued the second assailed Order dated September 7, 2010, denying petitioner's Motion for Reconsideration.

Hence, this petition for certiorari positing the singular issue of whether the COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction in refusing to dismiss the protest of
private respondent for insufficiency in form and content.

Not unexpectedly, private respondent refutes the allegations of petitioner and raises the procedural infirmity in the instant petition, i.e., the power of this Court to review decisions of the COMELEC
under Section 3,
[4]
Article IX-C of the Constitution, pursuant to the leading case of Repol v. COMELEC.
[5]
Private respondent likewise counters that the petition fails to demonstrate grave abuse of
discretion.

Adamantly, petitioner insists that the case at bar differs from Repol since the herein assailed Orders constituted a final order of the COMELEC (Second Division) on that particular issue. Moreover,
petitioner maintains that the COMELEC patently committed grave abuse of discretion.

We cannot subscribe to petitioner's proposition. The landmark case of Repol, as affirmed in the subsequent cases of Soriano, Jr. v. COMELEC
[6]
and Blanco v. COMELEC,
[7]
leaves no room for
equivocation.

Reviewing well-settled jurisprudence on the power of this Court to review an order, whether final or interlocutory, or final resolution of a division of the COMELEC, Soriano definitively ruled, thus:
In the 2004 case of Repol v. Commission on Elections, the Court cited Ambil and held that this Court has no power to review via certiorari an interlocutory order or even a final resolution of a division of
the COMELEC. However, the Court held that an exception to this rule applies where the commission of grave abuse of discretion is apparent on its face. In Repol, what was assailed was a status quo
ante Order without any time limit, and more than 20 days had lapsed since its issuance without the COMELEC First Division issuing a writ of preliminary injunction. The Court held that the status quo
ante Order of the COMELEC First Division was actually a temporary restraining order because it ordered Repol to cease and desist from assuming the position of municipal mayor of Pagsanghan, Samar
and directed Ceracas to assume the post in the meantime. Since the status quo ante Order, which was qualified by the phrase "until further orders from this Commission," had a lifespan of more than
20 days, this Order clearly violates the rule that a temporary restraining order has an effective period of only 20 days and automatically expires upon the COMELEC's denial of preliminary injunction.
The Court held:

"Only final orders of the COMELEC in Division may be raised before the COMELEC en banc. Section 3, Article IX-C of the 1987 Constitution mandates that only motions for reconsideration of final
decisions shall be decided by the COMELEC en banc, thus:

SEC. 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. (Emphasis supplied.)

Under this constitutional provision, the COMELEC en banc shall decide motions for reconsideration only of "decisions" of a Division, meaning those acts having a finalcharacter. Clearly, the
assailed status quo ante Order, being interlocutory, should first be resolved by the COMELEC First Division via a motion for reconsideration.
- [G.R. No. 188715, April 06 : 2011]
RODOLFO N. REGALA, PETITIONER, VS.
FEDERICO P. CARIN, RESPONDENT.

- [G.R. No. 163039, April 06 : 2011]
HEIRS OF FRANCISCO RETUYA,
FELICITAS R. PINTOR, HEIRS OF
EPIFANIA R. SEMBLANTE, NAMELY,
PREMILINO SEMBLANTE, LUCIFINA S.
TAGALOG, URSULINA S. ALMACEN;
HEIRS OF JUAN RETUYA, NAMELY,
BALBINA R. RODRIGUEZ, DOLORES R.
RELACION, SINFOROSA R. BASUBAS,
TEOPISTA R. BASUBAS, FERNANDO
RETUYA, BALDOMERO RETUYA,
TEOFILO RETUYA, LEONA COLINA,
FIDELA R. RAMIREZ, MARTINA R.
ALBAO, SEVERINA R. CABAHUG;
HEIRS OF RAFAELA VILLAMOR;
ELIZABETH V. ALESNA; HEIRS OF
QUINTIN RETUYA, NAMELY, FELIMON
RETUYA, SOFIA RETUYA, RUDOLFA
RETUYA AND ELISA RETUYA,
PETITIONERS, VS. HONORABLE COURT
OF APPEALS, HON. ULRIC CAETE AS
PRESIDING JUDGE OF REGIONAL TRIAL
COURT BRANCH 55, MANDAUE CITY,
NICOLAS RETUYA; HEIRS OF EULOGIO
RETUYA, NAMELY, MIGUEL RETUYA,
RAMON RETUYA, GIL RETUYA, PIO
RETUYA, MELANIO RETUYA, NICANOR
RETUYA, LEONILA RETUYA, AQUILINA
RETUYA, LUTGARDA RETUYA AND
PROCOPIO VILLANUEVA,
RESPONDENTS.

- [A.M. No. RTJ-11-2279 (Formerly
OCA IPI No. 08-3041-RTJ ), April 06 :
2011] FLORENCE EBERSOLE DEL MAR-
SCHUCHMAN, COMPLAINANT, VS.
JUDGE EFREN M. CACATIAN, REGIONAL
TRIAL COURT, BRANCH 35, SANTIAGO
CITY, ISABELA, RESPONDENT.

- [G.R. No. 156684, April 06 : 2011]
SPOUSES ANTONIO AND FE YUSAY,
PETITIONERS, VS. COURT OF APPEALS,
CITY MAYOR AND CITY COUNCIL OF
MANDALUYONG CITY, RESPONDENTS.

- [G.R. No. 171129, April 06 : 2011]
ENRICO SANTOS, PETITIONER, VS.
NATIONAL STATISTICS OFFICE,
RESPONDENT.

- [G.R. No. 180173, April 06 : 2011]
MICROSOFT PHILIPPINES, INC.,
PETITIONER, VS. COMMISSIONER OF
INTERNAL REVENUE, RESPONDENT.

- [G.R. No. 182967, April 06 : 2011]
PHILIPPINE NATIONAL RAILWAYS,
PETITIONER, VS. KANLAON
CONSTRUCTION ENTERPRISES CO.,
INC., RESPONDENT.

- [G.R. No. 169627, April 06 : 2011]
ROSEMARIE SALMA ARAGONCILLO-
MOLOK, PETITIONER, VS. SITY AISA
BARANGAI MOLOK, RESPONDENT.


Furthermore, the present controversy does not fall under any of the instances over which the COMELEC en banc can take cognizance of the case. Section 2, Rule 3 of the 1993 COMELEC Rules of
Procedure provides:

SEC. 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 the
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.

The present case is not one of the cases specifically provided under the COMELEC Rules of Procedure in which the COMELEC may sit en banc. Neither is this case one where a division is not authorized
to act nor a case where the members of the First Division unanimously voted to refer the issue to the COMELEC en banc. Thus, the COMELEC en banc is not even the proper forum where Repol may
bring the assailed interlocutory Order for resolution.

We held in Ambil, Jr. v. Commission on Elections that --

Under the existing Constitutional scheme, a party to an election case within the jurisdiction of the COMELEC in division [cannot] dispense with the filing of a motion for reconsideration of a decision,
resolution or final order of the Division of the Commission on Elections because the case would not reach the Comelec en banc without such motion for reconsideration having been filed x x x.

Repol went directly to the Supreme Court from an interlocutory order of the COMELEC First Division. Section 7, Article IX of the 1987 Constitution prescribes the power of the Supreme Court to review
decisions of the COMELEC, as follows:

Section 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.

We have interpreted this constitutional provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers. The decision must be
a final decision or resolution of the COMELEC en banc. The Supreme Court has no power to review via certiorari an interlocutory order or even a final resolution of a Division of the
COMELEC. Failure to abide by this procedural requirement constitutes a ground for dismissal of the petition. (Emphasis supplied.)

However, this rule is not ironclad. In ABS-CBN Broadcasting Corporation v. COMELEC, we stated --

This Court, however, has ruled in the past that this procedural requirement [of filing a motion for reconsideration] may be glossed over to prevent a miscarriage of justice, when the issue involves the
principle of social justice or the protection of labor, when the decision or resolution sought to be set aside is a nullity, or when the need for relief is extremely urgent and certiorari is the only adequate
and speedy remedy available.

The Court further pointed out in ABS-CBN that an exception was warranted under the peculiar circumstances of the case since there was hardly enough opportunity to move for a reconsideration and to
obtain a swift resolution in time for the 11 May 1998 elections. The same can be said in Repol's case. We rule that direct resort to this Court through a special civil action for certiorari is justified under
the circumstances obtaining in the present case. (Emphasis supplied)

x x x x

The general rule is that a decision or an order of a COMELEC Division cannot be elevated directly to this Court through a special civil action for certiorari. Furthermore, a motion to reconsider a decision,
resolution, order, or ruling of a COMELEC Division shall be elevated to the COMELEC En Banc. However, a motion to reconsider an interlocutory order of a COMELEC Division shall be resolved by the
division which issued the interlocutory order, except when all the members of the division decide to refer the matter to the COMELEC En Banc. Thus, in general, interlocutory orders of a
COMELEC Division are not appealable, nor can they be proper subject of a petition for certiorari. To rule otherwise would not only delay the disposition of cases but would also unnecessarily
clog the Court docket and unduly burden the Court. This does not mean that the aggrieved party is without recourse if a COMELEC Division denies the motion for reconsideration. The
aggrieved party can still assign as error the interlocutory order if in the course of the proceedings he decides to appeal the main case to the COMELEC En Banc. The exception
enunciated in Kho and Repol is when the interlocutory order of a COMELEC Division is a patent nullity because of absence of jurisdiction to issue the interlocutory order, as where a COMELEC Division
issued a temporary restraining order without a time limit, which is the Repol case, or where a COMELEC Division admitted an answer with counter-protest which was filed beyond the reglementary
period, which is the Kho case.

This Court has already ruled in Reyes v. RTC of Oriental Mindoro,

that "it is the decision, order or ruling of the COMELEC En Banc that, in accordance with Section 7, Art. IX-A of the
Constitution, may be brought to the Supreme Court on certiorari." The exception provided in Kho and Repol is unavailing in this case because unlike in Kho and Repol, the assailed interlocutory
orders of the COMELEC First Division in this case are not a patent nullity. The assailed orders in this case involve the interpretation of the COMELEC Rules of Procedure. Neither will the Rosal case apply
because in that case the petition for certiorari questioning the interlocutory orders of the COMELEC Second Division and the petition for certiorari and prohibition assailing the Resolution of the
COMELEC En Banc on the main case were already consolidated.
[8]


Plainly, from the foregoing, the Court has no jurisdiction to review an order, whether final or interlocutory, even a final resolution of a division of the COMELEC. Stated otherwise, the Court can only
review via certiorari a decision, order, or ruling of the COMELEC en banc in accordance with Section 7, Article IX-A of the Constitution.

Petitioner's assertion that circumstances prevailing herein are different from the factual milieu attendant in Repol has no merit. As stated in Soriano, "the general rule is that a decision or an order of a
COMELEC Division cannot be elevated directly to this Court through a special civil action forcertiorari." In short, the final order of the COMELEC (Second Division) denying the affirmative defenses of
- [G.R. No. 161204, April 06 : 2011]
NATIONAL HOUSING AUTHORITY,
PETITIONER, VS. HON. VICENTE Q.
ROXAS (PRESIDING JUDGE OF
REGIONAL TRIAL COURT, QUEZON
CITY, BRANCH 227,) REGISTER OF
DEEDS OF QUEZON CITY, LAND
REGISTRATION AUTHORITY, OFFICE OF
THE CITY, DEPARTMENT OF
ENVIRONMENT AND NATURAL
RESOURCES, AND THE COURT OF
APPEALS, RESPONDENTS.

- [G.R. No. 189457, April 07 : 2011]
SUNRISE HOLIDAY CONCEPTS, INC.,
Petitioner, vs. TERESA A. ARUGAY,
Respondent.

- [G.R. No. 186070, April 11 : 2011]
CLIENTLOGIC PHILPPINES, INC. (NOW
KNOWN AS SITEL), JOSEPH
VELASQUEZ, IRENE ROA AND RODNEY
SPIRES, PETITIONERS, VS. BENEDICT
CASTRO, RESPONDENT.

- [G.R. No. 191008, April 11 : 2011]
QUIRICO LOPEZ, PETITIONER, VS.
ALTURAS GROUP OF COMPANIES
AND/OR MARLITO UY, RESPONDENTS.

- [G.R. No. 192188, April 11 : 2011]
PEOPLE OF THE PHILIPPINES,
PLAINTIFF-APPELLEE, VS. ANDREW
ROBLE, ACCUSED-APPELLANT.

- [G.R. No. 174861, April 11 : 2011]
PEOPLE OF THE PHILIPPINES,
APPELLEE, VS. REYNALDO OLESCO Y
ANDAYANG,[1] APPELLANT.

- [G.R. No. 178635, April 11 : 2011]
SERVILLANO E. ABAD, PETITIONER, VS.
OSCAR C. FARRALES AND DAISY C.
FARRALES-VILLAMAYOR,
RESPONDENTS. D E C I S I O N

- [G.R. No. 187872, April 11 : 2011]
STRATEGIC ALLIANCE DEVELOPMENT
CORPORATION, PETITIONER, VS. STAR
INFRASTRUCTURE DEVELOPMENT
CORPORATION ET AL., RESPONDENTS.

- [G.R. No. 154042, April 11 : 2011]
JOSE T. TUBOLA, JR., PETITIONER, VS.
SANDIGANBAYAN AND PEOPLE OF THE
PHILIPPINES, RESPONDENTS.

- [G.R. No. 180282, April 11 : 2011]
CRISPIN DICHOSO, JR., EVELYN
DICHOSO VALDEZ, AND ROSEMARIE
DICHOSO PE BENITO,
PETITIONERS,vs.PATROCINIO L.
MARCOS, RESPONDENT.

- [G.R. No. 186243, April 11 : 2011]
HACIENDA PRIMERA DEVELOPMENT
CORPORATION and ANNA KATRINA E.
HERNANDEZ, Petitioners, vs. MICHAEL
S. VILLEGAS, Respondent.

petitioner cannot be questioned before this Court even via a petition for certiorari.

True, the aforestated rule admits of exceptions as when the issuance of the assailed interlocutory order is a patent nullity because of the absence of jurisdiction to issue the same.
[9]
Unfortunately for
petitioner, none of the circumstances permitting an exception to the rule occurs in this instance.

Finally, certiorari will not lie in this case.

The issuance of a special writ of certiorari has two prerequisites: (1) a 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 (2) there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law.
[10]


Although it is not the duty of the Court to point petitioner, or all litigants for that matter, to the appropriate remedy which she should have taken, we refer her to the cue found in Soriano, i.e., "[t]he
aggrieved party can still assign as error the interlocutory order if in the course of the proceedings he decides to appeal the main case to the COMELEC En Banc." In addition, the
protest filed by private respondent and the counter-protest filed by petitioner remain pending before the COMELEC, which should afford petitioner ample opportunity to ventilate her
grievances. Thereafter, the COMELEC should decide these cases with dispatch.

WHEREFORE, the petition is DISMISSED. Costs against petitioner.

SO ORDERED.

Corona, C.J., no part.
Carpio, Carpio Morales, Velasco, Jr., Leonardo-De Castro, Brion, Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza, and Sereno, JJ., concur.
Endnotes:

[1]
Rollo, pp. 32-43.

[2]
Id. at 44.

[3]
Supra note 1, at 41-43.

[4]
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.

[5]
G.R. No. 161418, April 28, 2004, 428 SCRA 321.

[6]
G.R. Nos. 164496-505, April 2, 2007, 520 SCRA 88.

[7]
G.R. No. 180164, June 17, 2008, 554 SCRA 755.

[8]
Soriano, Jr. v. COMELEC, supra note 6, at 102-107. (Emphasis supplied, citations omitted.)

[9]
Kho v. COMELEC, 344 Phil. 878, 886 (1997).

[10]
See RULES OF COURT, Rule 65, Sec. 1.


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- [G.R. No. 179010, April 11 : 2011]
ELENITA M. DEWARA, REPRESENTED
BY HER ATTORNEY-IN-FACT,
FERDINAND MAGALLANES,
PETITIONER, VS. SPOUSES RONNIE
AND GINA LAMELA AND STENILE
ALVERO, RESPONDENTS.

- [G.R. No. 190660, April 11 : 2011]
LAND BANK OF THE PHILIPPINES,
PETITIONER, VS. COURT OF APPEALS
AND ELIZABETH DIAZ, REPRESENTED
BY FRANCISCA P. DE GUZMAN AS
ATTORNEY-IN-FACT, RESPONDENTS.

- [G.R. No. 183575, April 11 : 2011]
SPOUSES ROGELIO MARCELO AND
MILAGROS MARCELO, PETITIONERS,
VS. LBC BANK, RESPONDENT.

- [A.M. No. P-10-2767 [Formerly AM
OCA IPI 08-2905-P], April 12 : 2011]
BR> ANTONIO EXEQUIEL A.
MOMONGAN, COMPLAINANT, VS.
PRIMITIVO A. SUMAYO, CLERK III AND
ARIEL A. MOMONGAN, PROCESS
SERVER, RESPONDENTS.

- [A.M. No. P-11-2913 (Formerly OCA
I.P.I. No. 08-2810-P), April 12 : 2011]
MA. CHEDNA ROMERO, COMPLAINANT,
VS. PACIFICO B. VILLAROSA, JR.,
SHERIFF IV, REGIONAL TRIAL COURT,
BRANCH 17, PALOMPON, LEYTE,
RESPONDENT.

- [G.R. No. 193846, April 12 : 2011]
MARIA LAARNI L. CAYETANO,
PETITIONER, VS. THE COMMISSION ON
ELECTIONS AND DANTE O. TINGA,
RESPONDENTS.

- [A.M. OCA IPI No. 10-177-CA-J, April
12 : 2011] RE: COMPLAINT OF
CONCERNED MEMBERS OF CHINESE
GROCERS ASSOCIATION AGAINST
JUSTICE SOCORRO B. INTING OF THE
COURT OF APPEALS

- [G.R. No. 191940, April 12 : 2011]
PHILIPPINE CHARITY SWEEPSTAKES
OFFICE BOARD OF DIRECTORS AND
REYNALDO P. MARTIN, PETITIONERS,
VS. MARIE JEAN C. LAPID,
RESPONDENT.

- [G.R. No. 176951, April 12 : 2011]
LEAGUE OF CITIES OF THE
PHILIPPINES (LCP), REPRESENTED BY
LCP NATIONAL PRESIDENT JERRY P.
TREAS; CITY OF CALBAYOG,
REPRESENTED BY MAYOR MEL SENEN
S. SARMIENTO; AND JERRY P. TREAS,
IN HIS PERSONAL CAPACITY AS
TAXPAYER, PETITIONERS, VS.
COMMISSION ON ELECTIONS;
MUNICIPALITY OF BAYBAY, PROVINCE
OF LEYTE; MUNICIPALITY OF BOGO,
PROVINCE OF CEBU; MUNICIPALITY OF
CATBALOGAN, PROVINCE OF WESTERN
SAMAR; MUNICIPALITY OF TANDAG,
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PROVINCE OF SURIGAO DEL SUR;
MUNICIPALITY OF BORONGAN,
PROVINCE OF EASTERN SAMAR; AND
MUNICIPALITY OF TAYABAS,
PROVINCE OF QUEZON, RESPONDENTS.
[G.R. NO. 177499] LEAGUE OF CITIES
OF THE PHILIPPINES (LCP),
REPRESENTED BY LCP NATIONAL
PRESIDENT JERRY P. TREAS; CITY OF
CALBAYOG, REPRESENTED BY MAYOR
MEL SENEN S. SARMIENTO; AND JERRY
P. TREAS, IN HIS PERSONAL
CAPACITY AS TAXPAYER,
PETITIONERS, VS. COMMISSION ON
ELECTIONS; MUNICIPALITY OF
LAMITAN, PROVINCE OF BASILAN;
MUNICIPALITY OF TABUK, PROVINCE
OF KALINGA; MUNICIPALITY OF
BAYUGAN, PROVINCE OF AGUSAN DEL
SUR; MUNICIPALITY OF BATAC,
PROVINCE OF ILOCOS NORTE;
MUNICIPALITY OF MATI, PROVINCE OF
DAVAO ORIENTAL; AND MUNICIPALITY
OF GUIHULNGAN, PROVINCE OF
NEGROS ORIENTAL, RESPONDENTS.
[G.R. NO. 178056] LEAGUE OF CITIES
OF THE PHILIPPINES (LCP),
REPRESENTED BY LCP NATIONAL
PRESIDENT JERRY P. TREAS; CITY OF
CALBAYOG, REPRESENTED BY MAYOR
MEL SENEN S. SARMIENTO; AND JERRY
P. TREAS, IN HIS PERSONAL
CAPACITY AS TAXPAYER,
PETITIONERS, VS. COMMISSION ON
ELECTIONS; MUNICIPALITY OF
CABADBARAN, PROVINCE OF AGUSAN
DEL NORTE; MUNICIPALITY OF
CARCAR, PROVINCE OF CEBU;
MUNICIPALITY OF EL SALVADOR,
PROVINCE OF MISAMIS ORIENTAL;
MUNICIPALITY OF NAGA, CEBU; AND
DEPARTMENT OF BUDGET AND
MANAGEMENT, RESPONDENTS.

- [A. M. No. 08-19-SB-J, April 12 :
2011] ASSISTANT SPECIAL
PROSECUTOR III ROHERMIA J.
JAMSANI-RODRIGUEZ, COMPLAINANT,
VS. JUSTICES GREGORY S. ONG, JOSE
R. HERNANDEZ, AND RODOLFO A.
PONFERRADA, SANDIGANBAYAN,
RESPONDENTS.

- [G.R. No. 180050, April 12 : 2011]
RODOLFO G. NAVARRO, VICTOR F.
BERNAL, AND RENE O. MEDINA,
PETITIONERS, VS. EXECUTIVE
SECRETARY EDUARDO ERMITA,
REPRESENTING THE PRESIDENT OF
THE PHILIPPINES; SENATE OF THE
PHILIPPINES, REPRESENTED BY THE
SENATE PRESIDENT; HOUSE OF
REPRESENTATIVES, REPRESENTED BY
THE HOUSE SPEAKER; GOVERNOR
ROBERT ACE S. BARBERS,
REPRESENTING THE MOTHER
PROVINCE OF SURIGAO DEL NORTE;
GOVERNOR GERALDINE ECLEO
VILLAROMAN, REPRESENTING THE
NEW PROVINCE OF DINAGAT ISLANDS,
RESPONDENTS, CONGRESSMAN
FRANCISCO T. MATUGAS, HON. SOL T.
MATUGAS, HON. ARTURO CARLOS A.
EGAY, JR., HON. SIMEON VICENTE G.
CASTRENCE, HON. MAMERTO D.
GALANIDA, HON. MARGARITO M.
LONGOS, AND HON. CESAR M.
BAGUNDOL, INTERVENORS.

- [G.R. No. 175831, April 12 : 2011]
PEOPLE OF THE PHILIPPINES,
APPELLEE, VS. FLORANTE RELANES
ALIAS "DANTE," APPELLANT.

- [G.R. No. 189479, April 12 : 2011]
JEROME JAPSON, PETITIONER, VS.
CIVIL SERVICE COMMISSION,
RESPONDENT.

- [A.M. No. RTJ-09-2197 [FORMERLY
OCA-I.P.I. NO. 08-3026-RTJ], April 13 :
2011] ANTONINO MONTICALBO,
COMPLAINANT, VS. JUDGE CRESCENTE
F. MARAYA, JR., REGIONAL TRIAL
COURT, BRANCH 11, CALUBIAN, LEYTE,
RESPONDENT.

- [G.R. No. 183984, April 13 : 2011]
ARTURO SARTE FLORES, PETITIONER,
VS. SPOUSES ENRICO L. LINDO, JR.
AND EDNA C. LINDO, RESPONDENTS.

- [G.R. No. 150898, April 13 : 2011]
OCEAN BUILDERS CONSTRUCTION
CORP., AND/OR DENNIS HAO,
PETITIONERS, VS. SPOUSES ANTONIO
AND ANICIA CUBACUB, RESPONDENTS.

- [G.R. No. 182262, April 13 : 2011]
ROMULO B. DELA ROSA, PETITIONER,
VS. MICHAELMAR PHILIPPINES, INC.,
SUBSTITUTED BY OSG
SHIPMANAGEMENT MANILA, INC.,*
AND/OR MICHAELMAR SHIPPING
SERVICES, INC., RESPONDENTS.

- [G.R. No. 135715, April 13 : 2011]
PRESIDENTIAL AD HOC FACT- FINDING
COMMITTEE ON BEHEST LOANS,
REPRESENTED BY MAGDANGAL B.
ELMA, PCGG CHAIRMAN AND ORLANDO
C. SALVADOR AS CONSULTANT OF THE
TECHNICAL WORKING GROUP OF THE
AD-HOC COMMITTEE, PETITIONERS,
VS. HONORABLE ANIANO A. DESIERTO
AS OMBUDSMAN, PANFILO O.
DOMINGO, CONRADO S. REYES,
ENRIQUE M. HERBOZA, MOHAMMAD
ALI DIMAPORO, ABDULLAH DIMAPORO
AND AMER DIANALAN, RESPONDENTS.

- [G.R. No. 190487, April 13 : 2011]
BUREAU OF CUSTOMS, PETITIONER,
VS. PETER SHERMAN, MICHAEL
WHELAN, TEODORO B. LINGAN, ATTY.
OFELIA B. CAJIGAL AND THE COURT OF
TAX APPEALS, RESPONDENTS.

- [G.R. No. 181440, April 13 : 2011]
PEOPLE OF THE PHILIPPINES,
PLAINTIFF-APPELLEE, VS. AIDA
MARQUEZ, ACCUSED-APPELLANT. D E C
I S I O N

- [G.R. No. 170914, April 13 : 2011]
STEFAN TITO MIOZA PETITIONER,
VS. HON. CESAR TOMAS LOPEZ, IN HIS
OFFICIAL CAPACITY AS MAYOR AND
CHAIR, LOON COCKPIT ARENA
BIDDING AND AWARDS COMMITTEE,
ITS MEMBERS NAMELY: HERMINIGILDO
M. CALIFORNIA, NOEL CASTROJO,
JESSE SEVILLA, FORTUNATO GARAY,
PERFECTO MANTE, ROGELIO GANADOS,
P/INSP. JASEN MAGARAN,
SANGGUNIANG BAYAN OF LOON,
BOHOL, REPRESENTED BY ITS
PRESIDING OFFICER, VICE MAYOR
RAUL BARBARONA, AND MARCELO EPE,
RESPONDENTS.

- [G.R. No. 157717, April 13 : 2011]
HEIRS OF MAXIMINO DERLA, NAMELY:
ZELDA, JUNA, GERALDINE, AIDA,
ALMA, ALL SURNAMED DERLA; AND
SABINA VDA. DE DERLA, ALL
REPRESENTED BY THEIR ATTORNEY-
IN-FACT, ZELDA DERLA, PETITIONERS,
VS. HEIRS OF CATALINA DERLA VDA.
DE HIPOLITO, MAE D. HIPOLITO,
ROGER ZAGALES, FRANCISCO DERLA,
SR., JOVITO DERLA, EXALTACION
POND, AND VINA U. CASAWAY, IN HER
CAPACITY AS THE REGISTER OF DEEDS
OF TAGUM, DAVAO DEL NORTE,
RESPONDENTS.

- [G.R. No. 189655, April 13 : 2011]
AOWA ELECTRONIC PHILIPPINES,
INC., PETITIONER, VS. DEPARTMENT
OF TRADE AND INDUSTRY, NATIONAL
CAPITAL REGION, RESPONDENT.

- [G.R. No. 183569, April 13 : 2011]
PEOPLE OF THE PHILIPPINES,
PLAINTIFF-APPELLEE, VS. VICENTE
PUBLICO Y AMODIA, ACCUSED-
APPELLANT.

- [G.R. No. 168922, April 13 : 2011]
WILFREDO Y. ANTIQUINA,
PETITIONER, VS. MAGSAYSAY
MARITIME CORPORATION AND/OR
MASTERBULK, PTE., LTD.,
RESPONDENTS.

- [G.R. No. 169292, April 13 : 2011]
SPOUSES FRANCISCO DE GUZMAN, JR.
AND AMPARO O. DE GUZMAN,
PETITIONERS, VS. CESAR OCHOA AND
SYLVIA A. OCHOA, REPRESENTED BY
ARACELI S. AZORES, AS THEIR
ATTORNEY-IN-FACT, RESPONDENTS.

- [G.R. No. 166859 : April 12, 2011]
REPUBLIC OF THE PHILIPPINES,
PETITIONER, VS. SANDIGANBAYAN
(FIRST DIVISION), EDUARDO M.
COJUANGCO, JR., AGRICULTURAL
CONSULTANCY SERVICES, INC.,
ARCHIPELAGO REALTY CORP., BALETE
RANCH, INC., BLACK STALLION RANCH,
INC., CHRISTENSEN PLANTATION
COMPANY, DISCOVERY REALTY CORP.,
DREAM PASTURES, INC., ECHO RANCH,
INC., FAR EAST RANCH, INC., FILSOV
SHIPPING COMPANY, INC., FIRST
UNITED TRANSPORT, INC., HABAGAT
REALTY DEVELOPMENT, INC.,
KALAWAKAN RESORTS, INC.,
KAUNLARAN AGRICULTURAL CORP.,
LABAYUG AIR TERMINALS, INC.,
LANDAIR INTERNATIONAL MARKETING
CORP., LHL CATTLE CORP., LUCENA OIL
FACTORY, INC., MEADOW LARK
PLANTATIONS, INC., METROPLEX
COMMODITIES, INC., MISTY
MOUNTAIN AGRICULTURAL CORP.,
NORTHEAST CONTRACT TRADERS, INC.,
NORTHERN CARRIERS CORP.,
OCEANSIDE MARITIME ENTERPRISES,
INC., ORO VERDE SERVICES, INC.,
PASTORAL FARMS, INC., PCY OIL
MANUFACTURING CORP., PHILIPPINE
TECHNOLOGIES, INC., PRIMAVERA
FARMS, INC., PUNONG-BAYAN
HOUSING DEVELOPMENT CORP., PURA
ELECTRIC COMPANY, INC., RADIO
AUDIENCE DEVELOPERS INTEGRATED
ORGANIZATION, INC., RADYO
PILIPINO CORP., RANCHO GRANDE,
INC., REDDEE DEVELOPERS, INC., SAN
ESTEBAN DEVELOPMENT CORP.,
SILVER LEAF PLANTATIONS, INC.,
SOUTHERN SERVICE TRADERS, INC.,
SOUTHERN STAR CATTLE CORP., SPADE
ONE RESORTS CORP., UNEXPLORED
LAND DEVELOPERS, INC., VERDANT
PLANTATIONS, INC., VESTA
AGRICULTURAL CORP. AND WINGS
RESORTS CORP., RESPONDENTS. [G.R.
NO. 169203 : April 12, 2011] REPUBLIC
OF THE PHILIPPINES, PETITIONER, VS.
SANDIGANBAYAN (FIRST DIVISION),
EDUARDO M. COJUANGCO, JR.,
MEADOW LARK PLANTATIONS, INC.,
SILVER LEAF PLANTATIONS, INC.,
PRIMAVERA FARMS, INC., PASTORAL
FARMS, INC., BLACK STALLION RANCH,
INC., MISTY MOUNTAINS
AGRICULTURAL CORP., ARCHIPELAGO
REALTY CORP., AGRICULTURAL
CONSULTANCY SERVICES, INC.,
SOUTHERN STAR CATTLE CORP., LHL
CATTLE CORP., RANCHO GRANDE, INC.,
DREAM PASTURES, INC., FAR EAST
RANCH, INC., ECHO RANCH, INC., LAND
AIR INTERNATIONAL MARKETING
CORP., REDDEE DEVELOPERS, INC., PCY
OIL MANUFACTURING CORP., LUCENA
OIL FACTORY, INC., METROPLEX
COMMODITIES, INC., VESTA
AGRICULTURAL CORP., VERDANT
PLANTATIONS, INC., KAUNLARAN
AGRICULTURAL CORP., ECJ & SONS
AGRICULTURAL ENTERPRISES, INC.,
RADYO PILIPINO CORP., DISCOVERY
REALTY CORP., FIRST UNITED
TRANSPORT, INC., RADIO AUDIENCE
DEVELOPERS INTEGRATED
ORGANIZATION, INC., ARCHIPELAGO
FINANCE AND LEASING CORP., SAN
ESTEBAN DEVELOPMENT CORP.,
CHRISTENSEN PLANTATION COMPANY,
NORTHERN CARRIERS CORP., VENTURE
SECURITIES, INC., BALETE RANCH,
INC., ORO VERDE SERVICES, INC., AND
KALAWAKAN RESORTS, INC.,
RESPONDENTS. [G.R. NO. 180702 :
April 12, 2011] REPUBLIC OF THE
PHILIPPINES, PETITIONER, VS.
EDUARDO M. COJUANGCO, JR.,
FERDINAND E. MARCOS, IMELDA R.
MARCOS, EDGARDO J. ANGARA,* JOSE
C. CONCEPCION, AVELINO V. CRUZ,
EDUARDO U. ESCUETA, PARAJA G.
HAYUDINI, JUAN PONCE ENRILE,
TEODORO D. REGALA, DANILO URSUA,
ROGELIO A. VINLUAN, AGRICULTURAL
CONSULTANCY SERVICES, INC., ANGLO
VENTURES, INC., ARCHIPELAGO
REALTY CORP., AP HOLDINGS, INC.,
ARC INVESTMENT, INC., ASC
INVESTMENT, INC., AUTONOMOUS
DEVELOPMENT CORP., BALETE RANCH,
INC., BLACK STALLION RANCH, INC.,
CAGAYAN DE ORO OIL COMPANY, INC.,
CHRISTENSEN PLANTATION COMPANY,
COCOA INVESTORS, INC., DAVAO
AGRICULTURAL AVIATION, INC.,
DISCOVERY REALTY CORP., DREAM
PASTURES, INC., ECHO RANCH, INC.,
ECJ & SONS AGRI. ENT., INC., FAR
EAST RANCH, INC., FILSOV SHIPPING
COMPANY, INC., FIRST MERIDIAN
DEVELOPMENT, INC., FIRST UNITED
TRANSPORT, INC., GRANEXPORT
MANUFACTURING CORP., HABAGAT
REALTY DEVELOPMENT, INC., HYCO
AGRICULTURAL, INC., ILIGAN
COCONUT INDUSTRIES, INC.,
KALAWAKAN RESORTS, INC.,
KAUNLARAN AGRICULTURAL CORP.,
LABAYOG AIR TERMINALS, INC.,
LANDAIR INTERNATIONAL MARKETING
CORP., LEGASPI OIL COMPANY, LHL
CATTLE CORP., LUCENA OIL FACTORY,
INC., MEADOW LARK PLANTATIONS,
INC., METROPLEX COMMODITIES, INC.,
MISTY MOUNTAIN AGRICULTURAL
CORP., NORTHEAST CONTRACT
TRADERS, INC., NORTHERN CARRIERS
CORP., OCEANSIDE MARITIME
ENTERPRISES, INC., ORO VERDE
SERVICES, INC., PASTORAL FARMS,
INC., PCY OIL MANUFACTURING CORP.,
PHILIPPINE RADIO CORP., INC.,
PHILIPPINE TECHNOLOGIES, INC.,
PRIMAVERA FARMS, INC., PUNONG-
BAYAN HOUSING DEVELOPMENT
CORP., PURA ELECTRIC COMPANY,
INC., RADIO AUDIENCE DEVELOPERS
INTEGRATED ORGANIZATION, INC.,
RADYO PILIPINO CORP., RANCHO
GRANDE, INC., RANDY ALLIED
VENTURES, INC., REDDEE DEVELOPERS,
INC., ROCKSTEEL RESOURCES, INC.,
ROXAS SHARES, INC., SAN ESTEBAN
DEVELOPMENT CORP., SAN MIGUEL
CORPORATION OFFICERS, INC., SAN
PABLO MANUFACTURING CORP.,
SOUTHERN LUZON OIL MILLS, INC.,
SILVER LEAF PLANTATIONS, INC.,
SORIANO SHARES, INC., SOUTHERN
SERVICE TRADERS, INC., SOUTHERN
STAR CATTLE CORP., SPADE 1 RESORTS
CORP., TAGUM AGRICULTURAL
DEVELOPMENT CORP., TEDEUM
RESOURCES, INC., THILAGRO EDIBLE
OIL MILLS, INC., TODA HOLDINGS,
INC., UNEXPLORED LAND DEVELOPERS,
INC., VALHALLA PROPERTIES, INC.,
VENTURES SECURITIES, INC.,
VERDANT PLANTATIONS, INC., VESTA
AGRICULTURAL CORP. AND WINGS
RESORTS CORP., RESPONDENTS.
JOVITO R. SALONGA, WIGBERTO E.
TAADA, OSCAR F. SANTOS, VIRGILIO
M. DAVID, ROMEO C. ROYANDAYAN
FOR HIMSELF AND FOR SURIGAO DEL
SUR FEDERATION OF AGRICULTURAL
COOPERATIVES (SUFAC), MORO
FARMERS ASSOCIATION OF
ZAMBOANGA DEL SUR (MOFAZS) AND
COCONUT FARMERS OF SOUTHERN
LEYTE COOPERATIVE (COFA-SL);
PHILIPPINE RURAL RECONSTRUCTION
MOVEMENT (PRRM), REPRESENTED BY
CONRADO S. NAVARRO; COCONUT
INDUSTRY REFORM MOVEMENT, INC.
(COIR) REPRESENTED BY JOSE MARIE
T. FAUSTINO; VICENTE FABE FOR
HIMSELF AND FOR PAMBANSANG
KILUSAN NG MGA SAMAHAN NG
MAGSASAKA (PAKISAMA); NONITO
CLEMENTE FOR HIMSELF AND FOR THE
NAGKAKAISANG UGNAYAN NG MGA
MALILIIT NA MAGSASAKA AT
MANGGAGAWA SA NIYUGAN
(NIUGAN); DIONELO M. SUANTE, SR.
FOR HIMSELF AND FOR KALIPUNAN NG
MALILIIT NA MAGNINIYOG NG
PILIPINAS (KAMMPIL), INC.,
PETITIONERS-INTERVENORS.

- [G.R. NO. 169203 : April 12, 2011]
REPUBLIC OF THE PHILIPPINES,
PETITIONER, VS. SANDIGANBAYAN
(FIRST DIVISION), EDUARDO M.
COJUANGCO, JR., MEADOW LARK
PLANTATIONS, INC., SILVER LEAF
PLANTATIONS, INC., PRIMAVERA
FARMS, INC., PASTORAL FARMS, INC.,
BLACK STALLION RANCH, INC., MISTY
MOUNTAINS AGRICULTURAL CORP.,
ARCHIPELAGO REALTY CORP.,
AGRICULTURAL CONSULTANCY
SERVICES, INC., SOUTHERN STAR
CATTLE CORP., LHL CATTLE CORP.,
RANCHO GRANDE, INC., DREAM
PASTURES, INC., FAR EAST RANCH,
INC., ECHO RANCH, INC., LAND AIR
INTERNATIONAL MARKETING CORP.,
REDDEE DEVELOPERS, INC., PCY OIL
MANUFACTURING CORP., LUCENA OIL
FACTORY, INC., METROPLEX
COMMODITIES, INC., VESTA
AGRICULTURAL CORP., VERDANT
PLANTATIONS, INC., KAUNLARAN
AGRICULTURAL CORP., ECJ & SONS
AGRICULTURAL ENTERPRISES, INC.,
RADYO PILIPINO CORP., DISCOVERY
REALTY CORP., FIRST UNITED
TRANSPORT, INC., RADIO AUDIENCE
DEVELOPERS INTEGRATED
ORGANIZATION, INC., ARCHIPELAGO
FINANCE AND LEASING CORP., SAN
ESTEBAN DEVELOPMENT CORP.,
CHRISTENSEN PLANTATION COMPANY,
NORTHERN CARRIERS CORP., VENTURE
SECURITIES, INC., BALETE RANCH,
INC., ORO VERDE SERVICES, INC., AND
KALAWAKAN RESORTS, INC.,
RESPONDENTS.

- [G.R. NO. 180702 : April 12, 2011]
REPUBLIC OF THE PHILIPPINES,
PETITIONER, VS. EDUARDO M.
COJUANGCO, JR., FERDINAND E.
MARCOS, IMELDA R. MARCOS,
EDGARDO J. ANGARA,* JOSE C.
CONCEPCION, AVELINO V. CRUZ,
EDUARDO U. ESCUETA, PARAJA G.
HAYUDINI, JUAN PONCE ENRILE,
TEODORO D. REGALA, DANILO URSUA,
ROGELIO A. VINLUAN, AGRICULTURAL
CONSULTANCY SERVICES, INC., ANGLO
VENTURES, INC., ARCHIPELAGO
REALTY CORP., AP HOLDINGS, INC.,
ARC INVESTMENT, INC., ASC
INVESTMENT, INC., AUTONOMOUS
DEVELOPMENT CORP., BALETE RANCH,
INC., BLACK STALLION RANCH, INC.,
CAGAYAN DE ORO OIL COMPANY, INC.,
CHRISTENSEN PLANTATION COMPANY,
COCOA INVESTORS, INC., DAVAO
AGRICULTURAL AVIATION, INC.,
DISCOVERY REALTY CORP., DREAM
PASTURES, INC., ECHO RANCH, INC.,
ECJ & SONS AGRI. ENT., INC., FAR
EAST RANCH, INC., FILSOV SHIPPING
COMPANY, INC., FIRST MERIDIAN
DEVELOPMENT, INC., FIRST UNITED
TRANSPORT, INC., GRANEXPORT
MANUFACTURING CORP., HABAGAT
REALTY DEVELOPMENT, INC., HYCO
AGRICULTURAL, INC., ILIGAN
COCONUT INDUSTRIES, INC.,
KALAWAKAN RESORTS, INC.,
KAUNLARAN AGRICULTURAL CORP.,
LABAYOG AIR TERMINALS, INC.,
LANDAIR INTERNATIONAL MARKETING
CORP., LEGASPI OIL COMPANY, LHL
CATTLE CORP., LUCENA OIL FACTORY,
INC., MEADOW LARK PLANTATIONS,
INC., METROPLEX COMMODITIES, INC.,
MISTY MOUNTAIN AGRICULTURAL
CORP., NORTHEAST CONTRACT
TRADERS, INC., NORTHERN CARRIERS
CORP., OCEANSIDE MARITIME
ENTERPRISES, INC., ORO VERDE
SERVICES, INC., PASTORAL FARMS,
INC., PCY OIL MANUFACTURING CORP.,
PHILIPPINE RADIO CORP., INC.,
PHILIPPINE TECHNOLOGIES, INC.,
PRIMAVERA FARMS, INC., PUNONG-
BAYAN HOUSING DEVELOPMENT
CORP., PURA ELECTRIC COMPANY,
INC., RADIO AUDIENCE DEVELOPERS
INTEGRATED ORGANIZATION, INC.,
RADYO PILIPINO CORP., RANCHO
GRANDE, INC., RANDY ALLIED
VENTURES, INC., REDDEE DEVELOPERS,
INC., ROCKSTEEL RESOURCES, INC.,
ROXAS SHARES, INC., SAN ESTEBAN
DEVELOPMENT CORP., SAN MIGUEL
CORPORATION OFFICERS, INC., SAN
PABLO MANUFACTURING CORP.,
SOUTHERN LUZON OIL MILLS, INC.,
SILVER LEAF PLANTATIONS, INC.,
SORIANO SHARES, INC., SOUTHERN
SERVICE TRADERS, INC., SOUTHERN
STAR CATTLE CORP., SPADE 1 RESORTS
CORP., TAGUM AGRICULTURAL
DEVELOPMENT CORP., TEDEUM
RESOURCES, INC., THILAGRO EDIBLE
OIL MILLS, INC., TODA HOLDINGS,
INC., UNEXPLORED LAND DEVELOPERS,
INC., VALHALLA PROPERTIES, INC.,
VENTURES SECURITIES, INC.,
VERDANT PLANTATIONS, INC., VESTA
AGRICULTURAL CORP. AND WINGS
RESORTS CORP., RESPONDENTS.
JOVITO R. SALONGA, WIGBERTO E.
TAADA, OSCAR F. SANTOS, VIRGILIO
M. DAVID, ROMEO C. ROYANDAYAN
FOR HIMSELF AND FOR SURIGAO DEL
SUR FEDERATION OF AGRICULTURAL
COOPERATIVES (SUFAC), MORO
FARMERS ASSOCIATION OF
ZAMBOANGA DEL SUR (MOFAZS) AND
COCONUT FARMERS OF SOUTHERN
LEYTE COOPERATIVE (COFA-SL);
PHILIPPINE RURAL RECONSTRUCTION
MOVEMENT (PRRM), REPRESENTED BY
CONRADO S. NAVARRO; COCONUT
INDUSTRY REFORM MOVEMENT, INC.
(COIR) REPRESENTED BY JOSE MARIE
T. FAUSTINO; VICENTE FABE FOR
HIMSELF AND FOR PAMBANSANG
KILUSAN NG MGA SAMAHAN NG
MAGSASAKA (PAKISAMA); NONITO
CLEMENTE FOR HIMSELF AND FOR THE
NAGKAKAISANG UGNAYAN NG MGA
MALILIIT NA MAGSASAKA AT
MANGGAGAWA SA NIYUGAN
(NIUGAN); DIONELO M. SUANTE, SR.
FOR HIMSELF AND FOR KALIPUNAN NG
MALILIIT NA MAGNINIYOG NG
PILIPINAS (KAMMPIL), INC.,
PETITIONERS-INTERVENORS.

- [G.R. No. 171542 : April 6, 2011]
ANGELITO P. MAGNO, Petitioner, v.
PEOPLE OF THE PHILIPPINES ,
MICHAEL MONSOD, ESTHER LUZ MAE
GREGORIO, GIAN CARLO CAJOLES,
NENETTE CASTILLON, DONATO ENABE
and ALFIE FERNANDEZ, Respondents.







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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No.195953 August 9, 2011
CERIACO BULILIS, Petitioner,
vs.
VICTORINO NUEZ, Hon. PRESIDING JUDGE, 6th MCTC, Ubay, Bohol, Hon. Presiding Judge, RTC, Branch 52, Talibon,
Bohol,Respondents.
R E S O L U T I O N
LEONARDO-DE CASTRO, J .:
On October 25, 2010, petitioner Ceriaco Bulilis (Bulilis) was proclaimed winner of the elections for punong barangay of Barangay
Bulilis, Ubay, Bohol. He won over respondent Victorino Nuez (Nuez) by a margin of four (4) votes. On November 2, 2010, Nuez
filed an Election Protest
1
(for judicial recount and annulment of proclamation) with the 6th Municipal Circuit Trial Court (MCTC) of
Ubay, Bohol. It was inexplicably docketed as Civil Case No. 134-10.
On November 5, 2010, Bulilis, through counsel, filed an Answer,
2
denying the allegations in the protest and praying for its
dismissal on the ground that the MCTC had no jurisdiction since the protest failed to implead the Chairman and the Members of
the Board of Election Inspectors who were purportedly indispensable parties. On the same date, the Clerk of Court of the MCTC
issued a notice of "hearing"
3
for November 9, 2010. However, counsel for Bulilis claimed that he never received said "notice" nor
was he in any way informed that the November 9, 2010 hearing was a preliminary conference. He allegedly only learned that
there was a hearing set on November 9, 2010 and it was for preliminary conference when he received a copy of respondent
Nuezs Preliminary Conference Brief, the day before the scheduled hearing or on November 8, 2010.
At about 1:45 p.m., on November 9, 2010, counsel for Bulilis filed his Preliminary Conference Brief with the Clerk of Court and
also furnished Nuezs counsel with a copy. However, when the case was called at 2:10 p.m., counsel for Nuez moved in open
court to be allowed to present evidence ex parte. Noting that counsel for Bulilis failed to file his brief and to furnish a copy of the
brief on the other party at least one (1) day prior to the preliminary conference as required by Section 4, Rule 9 of A.M. No. 07-4-
15-SC, Judge Daniel Jose J. Garces (Judge Garces) granted Nuezs motion to present evidence ex parte.
4

Counsel for Bulilis filed a motion for reconsideration on November 10, 2010, asserting the lack of proper notice to him of the
preliminary conference. In an Order dated November 15, 2010,
5
the MCTC denied the motion for reconsideration on the grounds
that the notice of hearing dated November 5, 2010 was received by petitioner Bulilis himself on said date and counsel for Bulilis
was made aware of the November 9, 2010 preliminary conference when he received the brief for protestant Nuez the day before.
Bulilis filed a petition for certiorari
6
under Rule 65 of the Rules of Court with the Regional Trial Court (RTC) of Talibon, Bohol.
However, in an Order
7
dated December 22, 2010, the RTC dismissed the petition on the ground that it is the Commission on
Elections (COMELEC) that has exclusive appellate jurisdiction over petitions for certiorari in election cases involving municipal
and barangay officials.
Buliliss motion for reconsideration of the RTC Decision was denied in an Order
8
dated March 9, 2011. Hence, he filed the
present petition for certiorari (under Rule 65) with prayer for writ of preliminary injunction with this Court (the Petition), claiming
that he is raising purely questions of law; that the MCTC had no jurisdiction for protestants failure to implead indispensable
parties; that the MCTC committed grave abuse of discretion in ordering reception of protestants evidence ex parte; and that
under the rules relied upon by the RTC, the COMELECs appellate jurisdiction in election cases is allegedly limited to decisions
of election courts and not interlocutory orders.
In a Resolution
9
dated March 29, 2011, this Court required respondent Nuez to comment. In his Comment dated June 13, 2011,
Nuez alleged that Bulilis is "guilty of invoking a mistaken Remedy and using a wrong Venue, but also committing the same failure
of compliance re filing fees."
10

The Petition must fail.
It appears from the record that the questioned notice of preliminary conference issued in the instant election protest may have
been defective in that (1) the notice issued by the MCTC clerk of court was a generic notice of hearing without any mention that it
was for preliminary conference, and (2) it was served on the party himself despite being represented by counsel in contravention
of Rule 9, Section 2
11
of A.M. No. 07-4-15-SC.
12
For this reason we disagree with the RTCs finding that impliedly ascribed all
fault to petitioner in failing to timely file his preliminary conference brief. We, nonetheless, find that the RTC and even this Court
have no jurisdiction to correct any error that may have been committed by MCTC Judge Garces in his order to allow the
protestant to present evidence ex parte.
Petitioner contends that the petition for certiorari that he filed with the RTC was "not an election case" (i.e., not relating to
elections, returns or qualifications of elective officials), but one imputing grave abuse of discretion on the part of the MCTC judge
in his issuance of an interlocutory order. He further claims that the COMELECs appellate jurisdiction is only limited to
"decided barangay election cases."
13

There is no merit in petitioners argument that Rule 28, Section 1 of the COMELEC Rules of Procedure limits the COMELECs
jurisdiction over petitions for certiorari in election cases to issues related to elections, returns and qualifications of elective
municipal and barangay officials. Said provision, taken together with the succeeding section,
14
undeniably shows that an
aggrieved party may file a petition for certiorari with the COMELEC whenever a judge hearing an election case has acted without
or in excess of his jurisdiction or with grave abuse of discretion and there is no appeal, nor any plain, speedy, and adequate
remedy in the ordinary course of law.
Neither can petitioner take refuge in Rule 14, Section 12 of A.M. No. 07-4-15-SC which provides:
SEC. 12. Jurisdiction of the Commission on Elections in certiorari cases. - The Commission on Elections has the authority to
issue the extraordinary writs of certiorari, prohibition and mandamus only in aid of its appellate jurisdiction over decisions of the
courts in election cases involving elective municipal and barangay officials. (Emphasis supplied.)
Petitioner relies on the above-quoted provision to claim that the COMELEC only has appellate jurisdiction over decisions of the
courts in election cases and not interlocutory orders. As the RTC correctly observed, the Court had in a subsequent issuance,
A.M. No. 07-7-12-SC
15
(which amended, among others, Rule 65 of the Rules of Court), clearly provided that:
In election cases involving an act or an omission of a municipal or a regional trial court, the petition shall be filed exclusively with
the Commission on Elections, in aid of its appellate jurisdiction. (Emphases supplied.)
Plainly, from the foregoing, this Court recognizes the COMELECs appellate jurisdiction over petitions for certiorari against all
acts or omissions of courts in election cases. Indeed, in the recent case of Galang v. Geronimo,
16
the Court had the opportunity
to rule that a petition for certiorari questioning an interlocutory order of a trial court in an electoral protest was within the appellate
jurisdiction of the COMELEC. To quote the relevant portion of that decision:
The question then is, would taking cognizance of a petition for certiorari questioning an interlocutory order of the regional trial
court in an electoral protest case be considered in aid of the appellate jurisdiction of the COMELEC? The Court finds in the
affirmative.
Interpreting the phrase "in aid of its appellate jurisdiction," the Court held in J.M. Tuason & Co., Inc. v. Jaramillo, et al. that if a
case may be appealed to a particular court or judicial tribunal or body, then said court or judicial tribunal or body has jurisdiction
to issue the extraordinary writ of certiorari, in aid of its appellate jurisdiction. This was reiterated in De Jesus v. Court of Appeals,
where the Court stated that a court may issue a writ of certiorari in aid of its appellate jurisdiction if said court has jurisdiction to
review, by appeal or writ of error, the final orders or decisions of the lower court.1avvphi1
Note that Section 8, Rule 14 of the 2010 Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal
Officials states that:
Sec. 8. Appeal. An aggrieved party may appeal the decision to the COMELEC within five (5) days after promulgation, by filing
a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or on the adverse party
who is not represented by counsel.
Since it is the COMELEC which has jurisdiction to take cognizance of an appeal from the decision of the regional trial court in
election contests involving elective municipal officials, then it is also the COMELEC which has jurisdiction to issue a writ of
certiorari in aid of its appellate jurisdiction. Clearly, petitioner erred in invoking this Court's power to issue said extraordinary writ.
(Emphasis supplied.)
Although Galang involved a petition for certiorari involving an interlocutory order of a regional trial court in a municipal election
contest, the rationale for the above ruling applies to an interlocutory order issued by a municipal trial court in a barangay election
case. Under Rule 14, Section 8 of A.M. No. 07-4-15-SC, decisions of municipal trial courts in election contests involving
barangay officials are appealed to the COMELEC. Following the Galang doctrine, it is the COMELEC which has jurisdiction over
petitions for certiorari involving acts of the municipal trial courts in such election contests.
In all, the RTC committed no grave abuse of discretion in dismissing the petition for lack of jurisdiction. This being the case, the
Court finds it unnecessary to resolve the other issues raised by petitioner.
WHEREFORE, the present Petition is DISMISSED.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
No Part
Close relation to counsel of party
ANTONIO T. CARPIO
*

Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
On leave
ROBERTO A. ABAD
*

Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
On leave
JOSE CATRAL MENDOZA
*

Associate Justice
MARIA LOURDES P. A. SERENO
Associate Justice
C E R T I F I C A T I O N
Pursuant to Article VIII, Section 13 of the Constitution, I certify that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice

Footnotes
*
On leave.
1
Rollo, pp. 18-21.
2
Id. at 22-23.
3
Id. at 24.
4
Id. at 27.
5
Id. at 28-30.
6
Id. at 31-38.
7
Id. at 39-42.
8
Id. at 43-44.
9
Id. at 47-48.
10
Id. at 51.
11
Rule 9, Section 2 provides that "[t]he notice of preliminary conference shall be served on counsel or on the
party who has no counsel. Notice to counsel is notice to the party, as counsel is charged with the duty to notify
the party represented."
12
Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials.
Note, however, that in the case of municipal officials, election contests are now governed by A.M. No. 10-4-1-SC
or the 2010 Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal Officials.
13
Rollo, pp. 12-13.
14
Rule 28, Sections 1 and 2 of the COMELEC Rules of Procedure provide:
Sec. 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 or
mandamus.
Sec. 2. Petition for Certiorari or Prohibition. - When any court or judge hearing election cases has acted
without or in excess of its or his jurisdiction or with grave abuse of discretion and there is no appeal, nor
any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may
file a petition for certiorari or prohibition with the Commission alleging the facts with certainty and praying
that judgment be rendered annulling or modifying the proceedings, as the law requires, of such court or
judge, or commanding it or him to desist from further proceeding with the action or matter specified
therein, as the case may be.
The petition shall be accompanied by a certified true copy of the judgment or order subject thereof,
together with all pleadings and documents relevant and pertinent thereto.
15
Amendments to Rules 41, 45, 58 and 65 of the Rules of Court.
16
G.R. No. 192793, February 22, 2011.

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Republic of the Philippines
SUPREME COURT
Baguio
EN BANC
G.R. No. 191970 April 24, 2012
ROMMEL APOLINARIO JALOSJOS, Petitioner,
vs.
THE COMMISSION ON ELECTIONS and DAN ERASMO, SR.,
D E C I S I O N
ABAD, J .:
This case is about the proof required to establish the domicile of a reinstated Filipino citizen who seeks election as governor of a
province.
The Facts and the Case
Petitioner Rommel Jalosjos was born in Quezon City on October 26, 1973. He migrated to Australia in 1981 when he was eight
years old and there acquired Australian citizenship. On November 22, 2008, at age 35, he decided to return to the Philippines
and lived with his brother, Romeo, Jr., in Barangay Veterans Village, Ipil, Zamboanga Sibugay. Four days upon his return, he
took an oath of allegiance to the Republic of the Philippines, resulting in his being issued a Certificate of Reacquisition of
Philippine Citizenship by the Bureau of Immigration.
1
On September 1, 2009 he renounced his Australian citizenship, executing a
sworn renunciation of the same
2
in compliance with Republic Act (R.A.) 9225.
3

From the time of his return, Jalosjos acquired a residential property in the same village where he lived and a fishpond in San
Isidro, Naga, Zamboanga Sibugay. He applied for registration as a voter in the Municipality of Ipil but respondent Dan Erasmo,
Sr., the Barangay Captain of Barangay Veterans Village, opposed the same. Acting on the application, the Election Registration
Board approved it and included Jalosjos name in the Commission on Elections (COMELECs) voters list for Precinct 0051F of
Barangay Veterans Village, Ipil, Zamboanga Sibugay.
4

Undaunted, Erasmo filed before the 1st Municipal Circuit Trial Court (MCTC) of Ipil-Tungawan-R.T. Lim in Ipil a petition for the
exclusion of Jalosjos name from the official voters list. After hearing, the MCTC rendered a decision, denying the petition.
5
On
appeal,
6
the Regional Trial Court (RTC) affirmed the MCTC decision. The RTC decision became final and executory.
On November 28, 2009 Jalosjos filed his Certificate of Candidacy (COC) for Governor of Zamboanga Sibugay Province for the
May 10, 2010 elections. Erasmo promptly filed a petition to deny due course or to cancel Jalosjos COC
7
on the ground that the
latter made material misrepresentation in the same since he failed to comply with (1) the requirements of R.A. 9225 and (2) the
one-year residency requirement of the Local Government Code.
After hearing, the Second Division of the COMELEC ruled that, while Jalosjos had regained Philippine citizenship by complying
with the requirements of R.A. 9225, he failed to prove the residency requirement for a gubernatorial candidate. He failed to
present ample proof of a bona fide intention to establish his domicile in Ipil, Zamboanga Sibugay. On motion for reconsideration,
the COMELEC En Banc affirmed the Second Divisions decision, ruling that Jalosjos had been a mere guest or transient visitor in
his brothers house and, for this reason, he cannot claim Ipil as his domicile.
Acting on Jalosjos prayer for the issuance of a temporary restraining order, the Court resolved on May 7, 2010 to issue a status
quo ante order, enjoining the COMELEC from enforcing its February 11, 2010 decision pending further orders. Meanwhile,
Jolosjos won the election and was proclaimed winner of the 2010 gubernatorial race in the Province of Zamboanga Sibugay.
8

The Issue Presented
The sole issue presented in this case is whether or not the COMELEC acted with grave abuse of discretion amounting to lack or
excess of jurisdiction in ruling that Jalosjos failed to present ample proof of a bona fide intention to establish his domicile in Ipil,
Zamboanga Sibugay.
The Courts Ruling
The Local Government Code requires a candidate seeking the position of provincial governor to be a resident of the province for
at least one year before the election.
9
For purposes of the election laws, the requirement of residence is synonymous with
domicile,
10
meaning that a person must not only intend to reside in a particular place but must also have personal presence in
such place coupled with conduct indicative of such intention.
11

There is no hard and fast rule to determine a candidates compliance with residency requirement since the question of residence
is a question of intention.
12
Still, jurisprudence has laid down the following guidelines: (a) every person has a domicile or
residence somewhere; (b) where once established, that domicile remains until he acquires a new one; and (c) a person can have
but one domicile at a time.
13

It is inevitable under these guidelines and the precedents applying them that Jalosjos has met the residency requirement for
provincial governor of Zamboanga Sibugay.
One. The COMELEC appears hasty in concluding that Jalosjos failed to prove that he successfully changed his domicile to
Zamboanga Sibugay. The COMELEC points out that, since he was unable to discharge the burden of proving Zamboanga
Sibugay to be his rightful domicile, it must be assumed that his domicile is either Quezon City or Australia.
But it is clear from the facts that Quezon City was Jalosjos domicile of origin, the place of his birth. It may be taken for granted
that he effectively changed his domicile from Quezon City to Australia when he migrated there at the age of eight, acquired
Australian citizenship, and lived in that country for 26 years. Australia became his domicile by operation of law and by choice.
14

On the other hand, when he came to the Philippines in November 2008 to live with his brother in Zamboanga Sibugay, it is
evident that Jalosjos did so with intent to change his domicile for good. He left Australia, gave up his Australian citizenship, and
renounced his allegiance to that country. In addition, he reacquired his old citizenship by taking an oath of allegiance to the
Republic of the Philippines, resulting in his being issued a Certificate of Reacquisition of Philippine Citizenship by the Bureau of
Immigration. By his acts, Jalosjos forfeited his legal right to live in Australia, clearly proving that he gave up his domicile there.
And he has since lived nowhere else except in Ipil, Zamboanga Sibugay.
To hold that Jalosjos has not establish a new domicile in Zamboanga Sibugay despite the loss of his domicile of origin (Quezon
City) and his domicile of choice and by operation of law (Australia) would violate the settled maxim that a man must have a
domicile or residence somewhere.
Two. The COMELEC concluded that Jalosjos has not come to settle his domicile in Ipil since he has merely been staying at his
brothers house. But this circumstance alone cannot support such conclusion. Indeed, the Court has repeatedly held that a
candidate is not required to have a house in a community to establish his residence or domicile in a particular place. It is
sufficient that he should live there even if it be in a rented house or in the house of a friend or relative.
15
To insist that the
candidate own the house where he lives would make property a qualification for public office. What matters is that Jalosjos has
proved two things: actual physical presence in Ipil and an intention of making it his domicile.
Jalosjos presented the affidavits of next-door neighbors, attesting to his physical presence at his residence in Ipil. These
adjoining neighbors are no doubt more credible since they have a better chance of noting his presence or absence than his other
neighbors, whose affidavits Erasmo presented, who just sporadically passed by the subject residence. Further, it is not disputed
that Jalosjos bought a residential lot in the same village where he lived and a fish pond in San Isidro, Naga, Zamboanga
Sibugay. He showed correspondences with political leaders, including local and national party-mates, from where he lived.
Moreover, Jalosjos is a registered voter of Ipil by final judgment of the Regional Trial Court of Zamboanga Sibugay.1wphi1
Three. While the Court ordinarily respects the factual findings of administrative bodies like the COMELEC, this does not prevent it
from exercising its review powers to correct palpable misappreciation of evidence or wrong or irrelevant considerations.
16
The
evidence Jalosjos presented is sufficient to establish Ipil, Zamboanga Sibugay, as his domicile. The COMELEC gravely abused
its discretion in holding otherwise.
Four. Jalosjos won and was proclaimed winner in the 2010 gubernatorial race for Zamboanga Sibugay. The Court will respect the
decision of the people of that province and resolve all doubts regarding his qualification in his favor to breathe life to their
manifest will.
WHEREFORE, the Court GRANTS the petition and SETS ASIDE the Resolution of the COMELEC Second Division dated
February 11, 2010 and the Resolution of the COMELEC En Banc dated May 4, 2010 that disqualified petitioner Rommel Jalosjos
from seeking election as Governor of Zamboanga Sibugay.
SO ORDERED.
ROBERTO A. ABAD
Associate Justice
WE CONCUR:
RENATO C. CORONA
Chief Justice
ANTONIO T. CARPIO
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
JOSE CATRAL MENDOZA
Associate Justice
MARIA LOURDES P. A. SERENO
Associate Justice
BIENVENIDO L. REYES
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the opinion of the Court.
RENATO C. CORONA
Chief Justice

Footnotes
1
Rollo, p. 110.
2
Id. at 112.
3
An Act making the Citizenship of the Philippines who acquire Foreign Citizenship permanent, amending for the
purpose Commonwealth Act 63, as amended and for other purposes.
4
Rollo, p. 111.
5
Docketed as Election Case 589.
6
Docketed as RTC Election Case 0007-2K9.
7
Docketed as SPA 09-115 (DC).
8
Rollo, p. 445.
9
Republic Act 7160, Section 39.
10
Domicile is classified into: (a) domicile of origin, which is acquired by every person at birth; (b) domicile of
choice, which is acquired upon abandonment of the domicile of origin; and (c) domicile by operation of law, which
attributes to a person independently of his residence or intention (See Ugdoracion, Jr. v. Commission on
Elections, G.R. No. 179851, April 18, 2008, 552 SCRA 231, 240-241).
11
Limbona v. Commission on Elections, G.R. No. 181097, June 25, 2008, 555 SCRA 391, 401.
12
Id. at 402.
13
Pundaodaya v. Commission on Elections, G.R. No. 179313, September 17, 2009, 600 SCRA 178, 184-185.
14
See Caasi v. Court of Appeals, G.R. Nos. 88831 and 84508, November 8, 1990, 191 SCRA 229, 235.
15
Co v. Electoral Tribunal of the House of Representatives, G.R. Nos. 92191-92 and 92202-03, July 30, 1991,
199 SCRA 692, 715, citing De los Reyes v. Solidum, 61 Phil. 893, 899 (1935).
16
Mitra v. Commission on Elections, G.R. No. 191938, July 2, 2010, 622 SCRA 744, 767.

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 169865 July 21, 2006
VIRGINIO VILLAMOR, petitioner,
vs.
COMMISSION ON ELECTIONS and AMYTIS
*
DE DIOS-BATAO, respondents.
D E C I S I O N
YNARES-SANTIAGO, J .:
This petition for certiorari under Rule 65 of the Rules of Court seeks to annul the April 11, 2005 Resolution
1
of the Second
Division of the Commission on Elections (COMELEC) in EAC No. A-11-2004 as well as the Order of the COMELEC En Banc
dated August 5, 2005. The assailed resolution affirmed the Order
2
dated July 23, 2004 of the Regional Trial Court of Danao City,
Branch 25 in Case No. EP-2004-02 which reconsidered its Order
3
dated June 24, 2004 dismissing the election protest filed by
respondent Amytis De Dios-Batao.
The antecedent facts are as follows:
On May 13, 2004, petitioner Virginio Villamor was proclaimed as mayor of Carmen, Cebu, by the Municipal Board of Canvassers
(MBC) in the elections held on May 10, 2004 over his opponent, respondent Amytis De Dios-Batao. On May 17, 2004,
respondent filed a petition to annul the proclamation of petitioner alleging as grounds the illegal composition of the MBC and its
proceedings. The case was docketed as SPC No. 04-083 and raffled to the COMELEC Second Division.
4

Subsequently, or on May 24, 2004, respondent filed an election protest with the Regional Trial Court of Danao City which was
docketed as Case No. EP-2004-02 and raffled to Branch 25 thereof. Petitioner filed his Answer to the Petition with Counter
Protest on June 7, 2004.
5
However, in its Order
6
dated June 24, 2004, the trial court dismissed the election protest for lack of
jurisdiction because it was filed one-day late.
Under Section 3, Rule 35 of the COMELEC Rules of Procedure, an election protest should be filed within 10 days from the date
of proclamation of the results of the election. Since petitioner was proclaimed on May 13, 2004, respondent had until May 23,
2004 to file an election protest. However, respondent filed the same only on May 24, 2004, thus, it was dismissed by the trial
court in an Order dated June 24, 2004.
7

A Motion for Reconsideration was filed by the respondent which was granted by the trial court in an Order dated July 23, 2004
because it found that the election protest was actually filed on time. Since the last day to file the protest fell on May 23, 2004
which was a Sunday, thus, under Section 1, Rule 22 of the Rules of Court, the time should not run until the next working day
which was May 24, 2004. Section 5, Rule 135 of the Rules of Court gives the courts inherent power to amend and control its
processes and orders to conform with law and justice.
8

Petitioner appealed the Order granting respondent's motion for reconsideration to the COMELEC and was docketed as EAC No.
A-11-2004 and was raffled to its Second Division. In the assailed Resolution dated April 11, 2005, the Second Division of the
COMELEC dismissed the appeal for lack of merit. On August 5, 2005, the COMELEC En Banc denied petitioner's motion for
reconsideration.
In the meantime, the Second Division of the COMELEC issued on May 9, 2005 a Resolution
9
in SPC No. 04-083 which is the
petition to annul the proclamation of petitioner, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, the Petition To Declare Null And Void Proclamation dated 17 May 2004
filed by petitioners Amythis De Dios Batao, et al., is hereby DISMISSED for lack of merit.
SO ORDERED.
10

Hence, this petition raising the following issues:
1. MAY A REGULAR COURT, IN AN ELECTION PROTEST, ACT ON A MOTION FOR RECONSIDERATION
FROM AN ORDER OF DISMISSAL OF THE ELECTION PROTEST CONSIDERING THAT A MOTION FOR
RECONSIDERATION IS A PROHIBITED PLEADING?
2. MAY A REGULAR COURT ADMIT AN ELECTION PROTEST PREMATURELY CONSIDERING THAT THE
PROTESTANT HAS STILL A PENDING PETITION FOR PRE-PROCLAMATION CONTROVERSY IN THE
ANNULMENT OF THE PROCLAMATION OF THE PROTESTEE IN THE COMELEC AND IF IT DOES SO, MAY
THE PERIOD FOR THE FILING OF THE COUNTER-PROTEST BE COUNTED FROM THE RECEIPT OF THE
RESOLUTION OF THE COMELEC DENYING THE PETITION FOR THE ANNULMENT OF THE
PROCLAMATION?
11

The core issues for resolution are as follows: (1) whether the trial court can act on a motion for reconsideration in an election
protest; and (2) whether the trial court prematurely admitted respondent's election protest pending a pre-proclamation
controversy.
We shall first discuss the second issue. As a general rule, the proper remedy after the proclamation of the winning candidate for
the position contested would be to file a regular election protest or a petition for quo warranto.
12
The filing of an election protest or
a petition for quo warranto precludes the subsequent filing of a pre-proclamation controversy or amounts to the abandonment of
one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the title of the protestee or the
validity of his proclamation.
13
The reason is that once the competent tribunal has acquired jurisdiction of an election protest or a
petition for quo warranto, all questions relative thereto will have to be decided in the case itself and not in another proceeding.
This procedure will prevent confusion and conflict of authority.
14

Moreover, not all actions seeking the annulment of proclamation suspend the running of the period for filing an election protest or
a petition for quo warranto.
15
For it is not the relief prayed for which distinguishes actions under 248
16
from an election protest
or quo warranto proceedings, but the grounds on which they are based.
17

In the case at bar, respondent's petition to annul the proclamation rested mainly on the alleged illegal composition of the
municipal board of canvassers
18
and its proceedings which is an issue that may be properly raised in a pre-proclamation
controversy.
19
Under paragraph (b) of Section 5 of Rule 27 of the COMELEC Rules of Procedure, if the petition involves the
illegal composition of the board of canvassers, it must be filed immediately when the board begins to act as such, or at the time
of the appointment of the member whose capacity to sit as such is objected to if it comes after the canvassing of the board, or
immediately at the point where the proceedings are or begin to be illegal. Thus, we held in Laodenio v. Commission on
Elections
20
that when the issue involves the illegal composition of the Board, the same cannot be questioned after the
proclamation of the winner, to wit:
Although Sec. 17 of R.A. 7166 and Sec. 5 par. (a)(1) (not Sec. 4 as erroneously cited by petitioner), of Rule 27 of
the COMELEC Rules of Procedure also allow filing of a petition directly with respondent COMELEC when the
issue involves the illegal composition of the Board, Sec. 5, par. (b), of the same Rule requires that it must be filed
immediately when the Board begins to act as such, or at the time of the appointment of the member whose
capacity to sit as such is objected to if it comes after the canvassing of the Board, or immediately at the point
where the proceedings are or begin to be illegal. In the present case, the petition was filed five (5) days after
respondent Longcop had been proclaimed by the Board. At any rate, the real issue appears to be not what it
appears to petitioner whether he can still dispute the composition of the Board after having actively participated
in the proceedings therein. In this regard, we sustain respondent COMELEC.
21

In the instant case, respondent's petition to annul petitioner's proclamation based on the alleged illegal composition of the board
of canvassers is a pre-proclamation controversy which should have been filed prior to petitioner's proclamation. However,
respondent filed the petition on May 17, 2004 only or four days after petitioner's proclamation. As such, the filing of the petition to
annul the proclamation of petitioner did not suspend the running of the reglementary period within which to file an election protest
and inevitably, it did not suspend the latter's period to file an Answer with Counter Protest. Accordingly, the subsequent filing of
the election protest on May 24, 2004 by respondent amounted to the abandonment of the pre-proclamation controversy earlier
filed.
Anent the first issue, petitioner asserts that a motion for reconsideration of the election protest filed by respondent was a
prohibited pleading thus its filing did not toll the running of the period to appeal. Consequently, when the latter failed to appeal
within five days from the June 24, 2004 Order of the trial court, the dismissal of the election protest became final.
On the other hand, respondent alleges that a motion for reconsideration is not a prohibited pleading and claims that even if the
motion was not filed, the trial court could reinstate the petition motu proprio before the said order became final.
We agree with petitioner.
Under Section 256 of the Omnibus Election Code (OEC),
22
the trial court cannot entertain a motion for reconsideration of its
decision in an election contest affecting municipal officers filed by the aggrieved party. However, the latter may appeal to the
Intermediate Appellate Court (now COMELEC) within five days after the receipt of a copy of the decision. Likewise, Section 19,
Rule 35 of the COMELEC Rules of Procedure implementing the abovementioned Section 256 provides:
Sec. 19. Promulgation and Finality of Decision. The decision of the Court shall be promulgated on a date set by
it of which due notice must be given the parties. It shall become final five (5) days after its promulgation. No
motion for reconsideration shall be entertained. (Emphasis supplied)
Respondent received a copy of the Order dismissing the election protest for lack of jurisdiction on June 25, 2004. Thus,
respondent had until June 30, 2004 within which to file an appeal with the COMELEC but failed to do so. Instead, respondent
filed a motion for reconsideration which is a prohibited pleading. As such, it did not toll the running of the prescriptive period.
In Veloria v. Commission on Elections,
23
a case involving candidates for municipal mayor, vice-mayor, and members of the
Sangguniang Bayan of Manaoag, Pangasinan, where instead of perfecting an appeal within five days as provided by law,
petitioners filed a motion for reconsideration, we held that:
The COMELEC, therefore, correctly ruled that the motion for reconsideration filed by the petitioners in the trial
court on March 20, 1990 did not suspend the period to appeal since a "motion for reconsideration" is prohibited
under Section 256 of the Omnibus Election Code.
Since the right to appeal is not a natural right nor is it a part of due process, for it is merely a statutory privilege
that must be exercised in the manner and according to procedures laid down by law, x x x and its timely
perfection within the statutory period is mandatory and jurisdictional x x x, Judge Abasolo gravely abused his
discretion when he gave due course to the petitioners' tardy appeal from his predecessor's x x x resoluti(o)n x x x
dismissing the petitioners' election protest. Said resolution had become final and unappealable.
24

The rules in ordinary civil procedure do not apply in election cases except by analogy or in a suppletory character and whenever
practicable and convenient.
25
Section 256 of the Omnibus Election Code and Section 19, Rule 35 of the COMELEC Rules of
Procedure clearly state that no motion for reconsideration should be entertained. Thus, there is no room to apply the rules of
ordinary civil procedure suppletorily. Nor can resort be made by the trial court to Section 5(g)
26
of Rule 135 of the Rules of Court
to sustain its actions. The trial court did not conform to law and justice when it granted the motion for reconsideration which is a
prohibited pleading.
WHEREFORE, in light of the foregoing, the petition is GRANTED. The Resolution dated April 11, 2005 of the COMELEC Second
Division and the Order dated August 5, 2005 of the COMELEC En Banc in EAC No. A-11-2004 which affirmed the Order dated
July 23, 2004 of the Regional Trial Court of Danao City, Branch 25 in Case No. EP-2004-02 granting the motion for
reconsideration of respondent Amytis De Dios-Batao, are ANNULLED andSET ASIDE. The Order dated June 24, 2004 of the
Regional Trial Court dismissing respondent's election protest for lack of jurisdiction is REINSTATED.
SO ORDERED.
Panganiban, C.J., Puno, Quisumbing, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr.,
Azcuna, Tinga, Chico-Nazario, Garcia, Velasco, Jr., J.J., concur.

Footnotes
*
Referred to as Amythis in some part of the records.
1
Penned by Presiding Commissioner Mehol K. Sadain and concurred in by Commissioners Florentino A. Tuason,
Jr. and Manuel A. Barcelona, Jr.; rollo, pp. 12-17.
2
Id. at 25-41. Penned by Judge Sylva G. Aguirre Paderanga.
3
Id. at 21-24.
4
Id. at 42-43.
5
Id. at 21.
6
Id. at 21-24.
7
Id. at 24.
8
Id. at 26-28.
9
Id. at 42-47.
10
Id. at 47.
11
Id. at 4.
12
Lorenzo v. Commission on Elections, 463 Phil. 863, 868 (2003).
13
Dumayas, Jr. v. Commission on Elections, G.R. Nos. 141952-53, April 20, 2001, 357 SCRA 358, 367.
14
Abdulmadid P.B. Maruhom v. Commission on Elections, 387 Phil. 491, 514 (2000), citing Datu Sukarno S.
Samad v. Commission on Elections, G.R. Nos. 107854 and 108642, July 16, 1993, 224 SCRA 631, 638.
15
Salipongan Dagloc v. Commission on Elections, 378 Phil. 906, 916 (1999).
16
The Omnibus Election Code.
Sec. 248. Effect of filing petition to annul or to suspend the proclamation. The filing with the Commission
of a petition to annul or to suspend the proclamation of any candidate shall suspend the running of the
period within which to file an election protest or quo warranto proceedings.
17
Salipongan Dagloc v. Commission on Elections, supra note 17.
18
Rollo, p. 43.
19
See COMELEC Rules of Procedure, Rule 27, Sec. 4(a).
20
342 Phil. 676 (1997).
21
Id. at 683-684.
22
Sec. 256. Appeals. Appeals from any decision rendered by the regional trial court under Section 251 and
paragraph two, Section 253 hereof with respect to quo warranto petitions filed in election contests affecting
municipal officers, the aggrieved party may appeal to the Intermediate Appellate Court within five days after
receipt of a copy of the decision. No motion for reconsideration shall be entertained by the court. The appeal shall
be decided within sixty days after the case has been submitted for decision.
23
G.R. No. 94771, July 29, 1992, 211 SCRA 907.
24
Id. at 913-914.
25
Rules of Court, Rule 1, Sec. 4 and Rule 143.
26
Sec. 5. Inherent powers of courts. Every court shall have power:
x x x x
(g) To amend and control its process and orders so as to make them comformable to law and justice[.]

The Lawphil Project - Arellano Law Foundation


EN BANC
[G.R. NO. 169413 : May 9, 2007]
GABRIEL GARDUCE BASARTE, Petitioner, v. COMMISSION ON ELECTIONS (COMELEC), BOARD
OF CANVASSERS OF SILVINO LOBOS, NORTHERN SAMAR, and NOEL JARITO, Respondents.
D E C I S I O N
PUNO, C.J.:
Before us is a petition for Certiorari under Rules 64 and 65 of the Rules of Court with prayer for the
issuance of a Writ of Preliminary Injunction and/or Status Quo Ante Order, assailing the resolution of
the COMELEC en banc
1
which affirmed the resolution of the COMELEC First Division
2
dismissing
petitioner Gabriel Garduce Basarte's Petition to Exclude Election Return No. 04101444 of Precinct No.
17A, Barangay Cagda-o, Silvino Lobos, Northern Samar.
Petitioner Basarte and private respondent Noel Jarito were candidates for Municipal Mayor of Silvino
Lobos, Northern Samar in the May 10, 2004 Synchronized National and Local Elections. Petitioner was
the Lakas-CMD Party mayoralty candidate while private respondent was the candidate of the Liberal
Party (Raul Daza Wing).
On May 29, 2004, the members of the Municipal Board of Canvassers (MBC) canvassed the election
returns from the various precincts of Silvino Lobos, Northern Samar. At around 5:30 p.m. of the same
day, petitioner Basarte, through his authorized representative Atty. Anselmo S. Alvaiz IV, registered
his objection to the inclusion of Election Return No. 04101444 of Precinct No. 17A, Barangay Cagda-o
on the grounds that "[t]he [e]lection [r]eturn is obviously tampered and the taras, words and figures
contained therein for all local positions (Prov l. and Municipal) have been altered" and "the second
page for the local positions is missing."
3

Petitioner submitted a formal offer of evidence. It was not opposed within the period provided under
the COMELEC Rules of Procedure (COMELEC Rules).
On June 1, 2004, the MBC of Silvino Lobos, Northern Samar denied petitioner's petition to exclude the
assailed election return. Its ruling reads:
Inclusion of ER for mayoralty position as there were no erasures/alterations in the said position. The
Chairman of the BEI had testified before the [B]oard that there was no page 2 of ER and by his
testimony it was taken by the Board as BEI regular function.
4

Petitioner timely filed a Notice of Appeal
5
with the MBC and a Petition
6
with the COMELEC. Petitioner
submitted in evidence: 1) his Petition to Exclude Election Return No. 04101444 of Precinct No. 17A of
Barangay Cagda-o with the MBC; 2) the Ruling of the MBC; and 3) the Notice of Appeal of the MBC's
Ruling. He submitted the affidavit of Boyet Lukban, the Official Watcher of Lakas-CMD in the subject
precinct, who attested that: a) the total number of votes cast in the precinct was only 126 - - 74 votes
for petitioner and 52 votes for private respondent Jarito; b) no page was missing in the election
returns during the tallying and counting of votes in the precinct; c) the names of petitioner, private
respondent Jarito and some candidates for Provincial Board Member were written on page 2 of the
election returns; d) as watcher, he affixed his signature on every page of the election returns,
including page 2 thereof; e) there were no erasures on the election returns when he signed each and
every page thereof; f) at about 9:00 p.m. of May 10, 2004, he accompanied the members of the
Board of Election Inspectors (BEI) on board a motorized banca owned by Danilo Jarito, first cousin of
private respondent, in order to bring the election paraphernalia to the Poblacion; g) upon arrival at the
Poblacion, Silvino Lobos at around midnight of the same day, he was chased by three (3) armed men,
hence, he was not able to accompany the election paraphernalia; h) he was not furnished a copy of
the Certificate of Votes cast for the candidates despite his request or demand; and i) the ballot box of
the subject precinct was only delivered by a certain Robert Ortenero to the Office of the Municipal
Treasurer in the morning of May 12, 2004. Lukban's affidavit was corroborated by a copy of Police
Blotter Entry No. 77, page 17, stating that only the chairman of the BEI of Precinct No. 17A of
Barangay Cagda-o delivered the ballot box of the said precinct to the Municipal Building Office of the
treasurer. The affidavit of Louie Bantilo, the official watcher of party-list Anakpawis in the subject
precinct also attested to the same circumstances related by Lukban in his affidavit. Petitioner
submitted the Joint Affidavit of Arturo Castillo, Nilda Castillo, Corita Bantilo, Gemma Castillo, Elpedio
Castillo, Caridad Morales Castillo, Cristina Morales and Samuel Diaz to prove that it was statistically
improbable for Precinct No. 17A to have a 100% voter turnout. These affiants attested that they were
registered voters of the subject precinct and that they were not able to cast their votes as they were
in another town. They likewise attested that in the May 10, 2004 election, one registered voter of the
subject precinct was in Manila and 14 others were already deceased. Petitioner submitted a copy of
the Computerized Voter's List for Barangay Cagda-o issued by the COMELEC to show that Barangay
Cagda-o had 157 registered voters and among them, some were already deceased, transferred
registration, in Manila or a double registrant at the time of the election. In his Supplemental Pleading,
petitioner also attached the affidavit of Romeo Y. Idjao, a candidate for councilor under the Liberal
Party who attested that the ballot box of the subject precinct was delivered to the house of private
respondent Jarito on May 10, 2004.rbl rl l lbrr
On December 14, 2004, the COMELEC First Division
7
issued a resolution penned by Commissioner
Resurreccion Borra, the dispositive portion of which states:
WHEREFORE, in view of the foregoing, the instant appeal is hereby DISMISSED and the assailed ruling
of the Municipal Board of Canvassers of Silvino, Lubos, Northern Samar is AFFIRMED. Accordingly, the
Board is hereby directed to immediately RECONVENE, COMPLETE the canvass and forthwith PROCLAIM
the winning candidate for the contested mayoralty position.
SO ORDERED.
8

In so ruling, the COMELEC First Division held:
Contrary to the allegation of the petitioner, the Chairman of the Board of Election Inspectors of
Precinct No. 17A has testified before the respondent MBC that they cannot be faulted on the alleged
missing page because there was no such second page existing in the copies of the election returns
when they received the same. With this explanation, and in the absence of any competent evidence to
the contrary, [We] are inclined to believe and hold that what the BEIs of Precinct No. 17A did, in the
light of said circumstance, should be accorded the presumption of regularity in the performance of its
official duties.
Likewise, after examining the contested election return, [We] agree that the same is regular and
authentic on its face and does not suffer from any serious infirmities affecting its integrity that
warrants its exclusion.
9

Petitioner filed a Motion for Reconsideration,
10
attaching additional documentary evidence, viz: 1) the
Certification of Jocelyn C. Diaz, the incumbent barangay Chairperson of Barangay Cagda-o stating that
the 21 persons who failed to vote were included in the list of voters in the subject precinct; 2) the
Affidavit of Orlando Bantilo stating that his father, who was included in the list of voters in the subject
precinct, died on June 5, 2003; 3) the Affidavit of Arturo Castillo that he was still in the list of voters in
the subject precinct despite the fact that he was already residing and had transferred his registration
to Pambujan, Northern Samar; 4) the Joint Affidavit of Zoilo D. Loyogoy and Segunda Arandia-Diaz
stating that they were still in the list of voters in the subject precinct even if they have transferred
their registration to Barangay Bangkerohan, Catarman, Northern Samar; 5) the Affidavit of Jocelyn C.
Diaz attesting that her father-in-law, Porferio B. Diaz, who died on February 20, 2002, was still
included in the voters' list of the subject precinct; and 6) the death certificate of Porferio Diaz. In his
Supplemental Motion for Reconsideration,
11
petitioner submitted copies of Arturo Castillo's Application
for Transfer of Registration, Application for Registration and the Computerized Voter's List of Barangay
Poblacion District 4 where he was listed as a registered voter; and copies of Alpidio Castillo's
Application for Transfer of Registration and Application for Registration from Silvino Lobos to
Pambujan.
On September 2, 2005, public respondent COMELEC en banc, in a resolution also penned by
Commissioner Borra, denied petitioner's motion for reconsideration.
12
Commissioner Mehol K. Sadain
registered the lone dissent.
On September 11, 2005, the MBC of Silvino Lobos, Northern Samar proclaimed Noel L. Jarito as
municipal mayor after canvassing the votes cast in thirty-nine (39) precincts in the municipality and
finding that Jarito obtained 2,691 votes, the highest cast for said office.
13

On September 12, 2005, petitioner filed with this Court a Most Urgent Motion for Special Raffle asking
for an immediate action of the prayer for a Status Quo Ante Order and/or Writ of Preliminary
Injunction. He likewise filed the instant Petition for Certiorari (With Application for a Writ of
Preliminary Injunction and/or Status Quo Ante Order) raising the following issues:
I
Respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction
when it proceeded to issue its September 2, 2005 En Banc Resolution in open defiance of the
restriction imposed by Section 1, Rule 4 of the COMELEC Rules of Procedure, hence, its proceedings
are null and void.
II
Respondent COMELEC committed grave abuse of discretion amounting to lack or excess of jurisdiction
in its findings of facts when it injudiciously disregarded all evidence laid before it that competently cast
doubt on the regularity and reliability of the questioned ER of Precinct 17A.
III
Respondent COMELEC's (sic) commit[ted] grave abuse of discretion amounting to lack or excess of
jurisdiction when it concluded that the questioned ER is genuine and authentic for canvass purposes
because established facts and the law does not support such baseless conclusion.
Petitioner prays that judgment be rendered: 1) declaring the assailed en banc resolution void for
having been issued in gross defiance of Section 1, Rule 4 of the COMELEC Rules and thereafter
nullifying the MBC ruling and the proclamation of private respondent Jarito; and 2) excluding Election
Return No. 04101444 of Precinct No. 17A, Barangay Cagda-o, Silvino Lobos, Northern Samar from the
MBC canvass for being falsified, tampered and/or manufactured or, in the alternative, directing
COMELEC to hold a special election for Precinct No. 17A, Barangay Cagda-o, Silvino Lobos, Northern
Samar.
14

Petitioner correctly points out that the assailed COMELEC en banc Resolution violates Section 1, Rule 4
of the COMELEC Rules which states that "no Member shall be the ponente of an en banc
decision/resolution on a motion to reconsider a decision/resolution written by him in a Division." In
Agbayani v. COMELEC,
15
we held that a violation of this rule is a reason for the reversal of the acts of
the COMELEC as COMELEC "should be the first to respect and obey its own rules, if only to provide the
proper example to those appearing before it and to avoid all suspicion of bias or arbitrariness in its
proceedings."
Factual findings of administrative bodies like the COMELEC are not infallible and will be set aside when
they fail the test of arbitrariness, or upon proof of grave abuse of discretion, fraud or error of law.
Thus, when they grossly misappreciate evidence of such nature as to compel a contrary conclusion,
their factual findings have been reversed. In the case at bar, we agree with petitioner that respondent
COMELEC disregarded some glaring facts which give rise to a prima facie showing of irregularity in the
assailed election return.
The following facts are undisputed: a) the subject election return lacked one page; b) the lacking page
was supposed to contain spaces for the continuation of the seven (7) other candidates for Provincial
Board Member and the first 13 spaces for the candidates for mayor; c) in the assailed election return,
the names of the two candidates for mayor (petitioner and private respondent Jarito) and their
corresponding votes were found on page 3; and d) the names of the seven (7) candidates for
Provincial Board Member and their corresponding votes were missing.
It is noteworthy that petitioner, in his petition
16
before the COMELEC, raised the issue of the missing
names and corresponding votes of the seven (7) candidates for Provincial Board Member. This issue,
however, was never addressed by public respondent COMELEC in any of its resolutions.rbl rl l l brr
The only explanation for the missing page is found in the ruling of the MBC that "[t]he Chairman of
the BEI had testified before the [B]oard that there was no page 2 of ER." Thereafter, the COMELEC
First Division and en banc stated in their resolutions that "the Chairman of the Board of Election
Inspectors of Precinct No. 17A has testified before the MBC to the effect that they cannot be faulted
on the alleged missing page because there was no such second page existing in the copies of the
election returns when they received the same." As opined by Commissioner Sadain, however, there is
much to be desired from this explanation. We quote with approval the relevant portions of
Commissioner Sadain's dissent, viz:
The majority opinion holds that the instant petition for exclusion of election return should be dismissed
because the election return under scrutiny is genuine and authentic. It proposes that the subject
election return is not palpably irregular on its face even if an entire page that should have contained
seven names of candidates for Provincial Board and two names for candidates for mayor, together
with their corresponding votes, is missing. The whereabouts of said missing page was explained away
with the acceptance, hook, line and sinker, of the tale recited by the Chairman of the BEI before the
Board of Canvassers that of all the precincts in the entire country, this particular precinct in Northern
Samar received an election return without its page number two for Local Positions.
The explanation of the Chairman of the BEI is problematic in a lot of aspects. In the first place, said
explanation is a mere whisper in the records of the instance case. In short, nowhere can it be found. It
was taken as a fact by the Commission even if said explanation - or, more precisely, a shadow of said
explanation - can only be found in the ruling of the Board of Canvassers rejecting the instant petition
for exclusion, x x x
Nothing in the records further reflects an official account of the proceedings held before the Board of
Canvassers, not even a transcript of the said explanation rendered by the BEI Chairman or, at the
least, a copy of the minutes of the BOC proceedings.
x x x
It goes without saying that for this appended story to be credible, it should also appear that the other
votes for the other candidates for Provincial Board Member not accommodated in page 1 (as said page
ends with the No. 6 candidate for Board Member, the 7th and other slots being continued to page 2
which is the missing page herein) were also accommodated in the other pages of the election return or
in another sheet of paper. As it stands, they were not, and the votes for the following candidates for
Provincial Board Member cannot be accounted for in any page of the questioned election return:
1. LEGASPI, Voltair Policarpio (PMP);
2. LUCBAN, Miguel Cerda, Lakas CMD;
3. LUCERO, Albert Alpez, Lakas CMD;
4. MERCADO, Rodolfo Pajac, Lakas CMD;
5. ONGCHUAN, Harris Christopher Mendoza, Lakas CMD;
6. SARMIENTO, Miguel Lipata, Liberal Party;
7. TIMAN, Gil Tuballas, Liberal Party.
The uncorroborated explanation of the BEI Chairman of Precinct No. 17A of Brgy. Cagda-o, which was
readily accepted by the Board of Canvassers and by this Commission, of course, does not reveal
where the votes of said seven candidates for Board Member went to as they remain, up to the
present, simply and patently unaccounted for.
17

In Lee v. COMELEC
18
which similarly involves an election return with omitted entries, we held:
Votes for an important position such as congressman do not simply vanish into thin air. Those who are
mandated by law to account for such votes, if mistakenly omitted, are at least expected to give a
fairly reasonable account of why and how then they have been omitted. Absent such explanation,
doubt arises as to the authenticity of the returns and the manner of their preparation, specially in this
case where a party watcher was allowed to take part in the preparation of the election return.
19

Public respondent COMELEC, through the Office of the Solicitor General, contends that a pre-
proclamation controversy is limited to an examination of the election returns on their face and it is
beyond its jurisdiction to go beyond the face of the returns or investigate election irregularities.
But precisely, the unexplained omission appears on the face of the election return. In the instant case,
as observed by Commissioner Sadain in his dissent:
This irregularity in the election return appears on its face. And when there is such an irregularity, the
presumption of regularity in the accomplishment of said return vanishes. Thus, the principle that
election returns are accorded prima facie status as bona fide reports of the results of the elections and
should therefore be included in the canvass in the absence of any irregularity on their face finds no
application in this case.
Precisely, the subject election return is irregular, or at least, incomplete on its face.
20

Moreover, the prevailing rule that as long as the returns appear to be authentic and duly accomplished
on their face, the Board of Canvassers cannot look beyond or behind them to verify allegations of
irregularities in the casting or the counting of the votes presupposes that the returns "appear to be
authentic and duly accomplished on their face." This principle does not apply in cases like the one at
bar where there is a prima facie showing that the return is not genuine, several entries having been
omitted in the assailed return.
21

COMELEC's contention that its conclusion was based on its examination of the original second copy
(the COMELEC copy) of the election return is unavailing as what is being assailed is the copy of the
election return that was used in the canvass - the original first copy (the MBC copy). Under Section
235 of the Omnibus Election Code, the other original copies of the assailed election return may be
resorted to when the assailed election return appears to be tampered with, altered, or falsified. In the
instant case, the COMELEC resorted to the original second copy despite its ruling that the questioned
election return (the MBC copy) was genuine and authentic on its face. Stranger still, it does not
appear that the COMELEC en banc compared the original second copy with the assailed MBC copy of
the election return.
The merit of petitioner's arguments notwithstanding, Section 243 (d) of the Omnibus Election Code
requires that for a pre-proclamation controversy to prosper, it must be shown that the election return
sought to be annulled would materially affect the results of the election.
In the instant case, it is not clear whether the election return of Precinct No. 17A of Barangay Cagda-
o, Silvino Lobos, Northern Samar will materially affect the results of the mayoral contest. The assailed
resolutions of the COMELEC en banc
22
and First Division
23
are silent on this issue. Even petitioner did
not make this allegation in his petition for exclusion of the subject election return before the MBC. It
was only in his Supplemental Pleading before the COMELEC en banc that petitioner first prayed that he
be "proclaimed as the duly elected mayor of Silvino Lobos based on the overall result after the special
election recently held as per order of [the COMELEC], or in the alternative, the true and correct result
of Precinct No. 17-A namely, 74 votes for petitioner and 52 votes for respondent Noel Jarito, be the
basis in the computation of the total number of votes for both candidates."
24
In his Supplemental
Motion for Reconsideration with the COMELEC en banc, petitioner alleged that it was "[made] to
appear that [he] received only 2 votes from the [subject] precinct while his opponent (Jarito) received
155 votes where in truth and in fact, [he] actually received 74 votes, as against 52 votes of his
opponent, making [him] the clear winner in the election for the mayoralty position."
25
Be that as it
may, petitioner failed to submit convincing evidence to show that he would indeed win the election if
the contested election return was excluded from the computation. Indeed, even in his assignment of
errors before this Court, petitioner did not raise as an issue the materiality of the election return.
Petitioner belatedly submitted proof of its materiality by attaching in his Petition a "certified true copy"
of the Statement of Votes Per Precinct of the Municipality of Silvino Lobos
26
and explaining in his
Memorandum
27
the figures found in said Statement of Votes. This is procedurally untenable as vital
question of fact cannot be determined by this Court for the first time on appeal.
IN VIEW WHEREOF, the petition is DENIED.
SO ORDERED.


EN BANC

JOSELITO R. MENDOZA,
Petitioner,








- versus -









COMMISSION ON ELECTIONS and
ROBERTO M. PAGDANGANAN,
Respondents.
G.R. No. 188308

Present:


*
PUNO, C.J.,

**
QUISUMBING,
CARPIO,
CORONA,
CARPIO MORALES,
CHICO-NAZARIO,

***
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,

****
DEL CASTILLO, and
ABAD, JJ.


Promulgated:

October 15, 2009
x ---------------------------------------------------------------------------------------- x

D E C I S I O N

BRION, J .:

The present case involves a clash between the power under the Philippine
Constitution of the respondent Commission on Elections (COMELEC) in the
handling of a provincial election contest, and the claimed due process rights of a
party to the contest. The petitioner Joselito R. Mendoza (the petitioner) essentially
asserts in his petition forcertiorari
[1]
that the COMELEC conducted proceedings in
the election contest for the gubernatorial position of the Province of Bulacan,
between him and the respondent Roberto M. Pagdanganan (the respondent),
without due regard to his fundamental due process rights. The COMELEC, on the
other hand, claims that its decision-making deliberations are internal, confidential
and do not require notice to and the participation of the contending parties.

THE ANTECEDENTS

The petitioner and the respondent vied for the position of Governor of
the Province of Bulacan in the May 14, 2007 elections. The petitioner was
proclaimed winning candidate and assumed the office of Governor.

The respondent seasonably filed an election protest with the COMELEC,
which was raffled to the Second Division and docketed as EPC No. 2007-
44. Revision of ballots involving the protested and counter-protested precincts in
Angat, Bocaue, Calumpit, Doa Remedios Trinidad, Guiginto, Malolos,
Meycauayan, Norzagaray, Pandi, Paombong, Plaridel, Pulilan, San Rafael and San
Jose del Monte soon followed. The revision was conducted at the COMELECs
office in Intramuros. After revision, the parties presented their other evidence,
leading to the parties formal offer of their respective evidence.

The COMELEC approved the parties formal offer of evidence and then
required the parties to submit their respective memoranda. The parties complied
with the COMELECs order. The case was thereafter submitted for resolution.

On March 2, 2009 the COMELEC transferred the Bulacan ballot boxes,
including those involved in the provincial election contest, to the Senate Electoral
Tribunal (SET) in connection with the protest filed by Aquilino Pimentel III
against Juan Miguel Zubiri. In light of this development, the petitioner moved to
suspend further proceedings. .

The COMELECs Second Division denied the petitioners motion in its
Order of April 29, 2009, ruling that the COMELEC has plenary powers to find
alternative methods to facilitate the resolution of the election protest; thus, it
concluded that it would continue the proceedings after proper coordination with the
SET. The petitioner moved to reconsider this Order, but the COMELECs Second
Division denied the motion in its Order of May 26, 2009. These inter-related
Resolutions led to the COMELECs continued action specifically, the
appreciation of ballots on the provincial election contest at the SET offices.

Allegedly alarmed by information on COMELEC action on the provincial
election contest within the SET premises without notice to him and without his
participation, the petitioners counsel wrote the SET Secretary, Atty. Irene
Guevarra, a letter dated June 10, 2009 to confirm the veracity of the reported
conduct of proceedings.
[2]
The SET Secretary responded on June 17, 2009 as
follows:

x x x please be informed that the conduct of proceedings in COMELEC
EPC No. 2007-44 (Pagdanganan vs. Mendoza) within the Tribunal Premises was
authorized by then Acting Chairman of the Tribunal, Justice Antonio T. Carpio,
upon formal request of the Office of Commissioner Lucenito N. Tagle.

Basis of such grant is Section 3, Comelec Resolution No. 2812 dated 17
October 1995, stating that (t)he Tribunals, the Commission and the Courts shall
coordinate and make arrangement with each other so as not to delay or interrupt
the revision of ballots being conducted. The synchronization of revision of
ballots shall be such that the expeditious disposition of the respective protest case
shall be the primary concern. While the said provision speaks only of revision, it
has been the practice of the Tribunal to allow the conduct of other proceedings in
local election protest cases within its premises as may be requested. [emphasis
supplied]
[3]


THE PETITION

The SET Secretarys response triggered the filing of the present petition
raising the following ISSUES

A. WHETHER OR NOT THE COMELEC VIOLATED DUE
PROCESS BY CONDUCTING PROCEEDINGS WITHOUT GIVING DUE
NOTICE TO THE PETITIONER.

B. WHETHER OR NOT THE COMELEC GRAVELY ABUSED ITS
DISCRETION TANTAMOUNT TO AN EXCESS OF JURISDICTION IN
APPRECIATING BALLOTS WHICH ARE NOT IN ITS OFFICIAL
CUSTODY AND ARE OUTSIDE ITS OWN PREMISES, AUTHORITY
AND CONTROL.

The petitioner argues that the election protest involves his election as
Governor; thus, its subject matter involves him and the people of
the Province of Bulacan who elected him. On this basis, he claims entitlement to
notice and participation in all matters that involve or are related to the election
protest. He further asserts that he had the legitimate expectation that no further
proceedings would be held or conducted in the case after its submission for
decision.

Citing the commentaries of Father Joaquin Bernas,
[4]
the petitioner argues
that the proceedings before the COMELEC in election protests are judicial in
nature and character. Thus, the strictures of judicial due process specifically, (a)
opportunity to be heard and (b) that judgment be rendered only after lawful hearing
apply. Notices in judicial dispute, he claims, are not really just a matter of
courtesy; they are elementary fundamental element of due process, they are part
and parcel of a right of a party to be heard. He further cites Justice Isagani A.
Cruz,
[5]
who wrote:
x x x Every litigant is entitled to his day in court. He has a right to be
notified of every incident of the proceeding and to be present at every stage
thereof so that he may be heard by himself and counsel for the protection of his
interest.

The petitioner claims that without notice to him of the proceedings, the due process
element of the right to have judgment only after lawful hearing is absent. There is
no way, he claims, that a judicial proceeding held without notice to the parties
could be described as a lawful hearing, especially a proceeding which has as its
subject matter the sovereign will of an entire province.

He was therefore denied his day in court, he claims, when the COMELEC
conducted the examination and appreciation of ballots. The proceedings should be
stopped and declared null and void; its future results, too, should be nullified, as
nothing derived from the anomalous and unconstitutional clandestine and
unilateral proceedings should ever be part of any decision that the COMELEC
may subsequently render. The poisonous fruits (derived from the proceedings)
should have no part and should not be admitted for any purpose and/or in any
judicial proceeding.

Other than his due process concern, the petitioner takes issue with the
COMELECs appreciation of ballots even when the ballots and other election
materials were no longer in its official custody and were outside its premises,
authority and control. He asserts that an important element of due process is that
the judicial body should have jurisdiction over the property that is the subject
matter of the proceedings. In this case, the COMELEC has transferred possession,
custody and jurisdiction over the ballots to the SET, a tribunal separate and
independent from the COMELEC and over which the COMELEC exercises no
authority or jurisdiction. For the COMELEC to still conduct proceedings on
property, materials and evidence no longer in its custody violates the principle of
separation of powers.

The petitioner also points out that the COMELECs unilateral appreciation
of the ballots in the SET premises deviates from the Commissions usual and time
honored practice and procedure of conducting proceedings within its premises and
while it has custody over the ballots. There is no precedent, according to the
petitioner, for this deviation, nor is there any compelling reason to make the
present case an exception. Citing Cabagnot v. Commission on Elections (G.R. No.
124383, August 9, 1996) which involves a transfer or change of venue of the
revision of ballots, the petitioner alleges that this Court has been very emphatic in
denouncing the COMELEC for its departure from its own rules and usual practice;
while Cabagnot involves the issue of change of venue, the petitioner finds parallel
applicability in the present case which also involves a deviation from COMELEC
rules and usual practice. The petitioner adds that the act of the Second Division is
effectively an arrogation of the authority to promulgate rules of procedure a
power that solely belongs to the COMELEC en banc.

After a preliminary finding of a genuine due process issue, we issued a
Status Quo Order on July 14, 2009.

THE RESPONDENTS COMMENTS

In his Comment to the Petition with Extremely Urgent Motion to
Lift/Dissolve Status Quo Ante Order, the private respondent asserts that the petition
contains deliberate falsehoods and misleading allegations that led the Court to
grant the injunctive relief the petitioner had asked. He asserts that the
proceeding the petitioner stated in his petition was actually the COMELECs
decision-making process, i.e., the appreciation of ballots, which is a procedure
internal to the Members of the Second Division of the COMELEC and their staff
members; no revision of ballots took place as revision had long been
finished. What was therefore undertaken within the SETs premises was unilateral
COMELEC action that is exclusive to the COMELEC and an internal matter that is
confidential in nature. In this light, no due process violation ever arose.

The private respondent also asserts that the petitioner cannot claim that he
was not notified of and denied participation in the revision proceedings, as the
petitioner himself is fully aware that the revision of the ballots was completed as
early as July 28, 2008 and the petitioner was present and actively participated in
the entire proceedings, all the way to the filing of the required memoranda. Thus,
the petitioners right to due process was duly satisfied.

The private respondent implores us to commence contempt proceedings
against the petitioner who, the respondent claims, has not been forthright in his
submissions and was not guided by the highest standards of truthfulness, fair play
and nobility in his conduct as a party and in his relations with the opposing party,
the other counsel and the Court.

Lastly, the private respondent posits that the present petition was filed out of
time i.e., beyond the reglementary period provided under Rule 64. All these
reasons, the private respondent argues, constitute sufficient basis for the
lifting of the status quo order and the dismissal of the petition.

Public respondent COMELEC, for its part, claims that the petition is without
basis in fact and in law and ought to be dismissed outright. Given the possibility of
simultaneous election contests involving national and local officials, it has
institutionalized an order of preference in the custody and revision of ballots in
contested ballot boxes. The established order of preference is not without
exception, as the expeditious disposition of protest cases is a primary
concern. Additionally, the order of preference does not prevent the COMELEC
from proceeding with pending protest cases, particularly those already submitted
for decision. It claims that it has wide latitude to employ means to effectively
perform its duty in safeguarding the sanctity of the elections and the integrity of
the ballot.

The COMELEC further argues that in the absence of a specific rule on
whether it can conduct appreciation of ballots outside its premises or official
custody, the issue boils down to one of discretion the authority of the COMELEC
to control as it deems fit the processes or incidents of a pending election
protest. Under Section 4 of the COMELEC Rules of Procedure, the COMELEC
may use all auxiliary writs, processes and other means to carry into effect its
powers or jurisdiction; if the procedure to be followed in the exercise of such
power or jurisdiction is not specifically provided for by law or the Rules of
Procedure, any suitable process or proceeding not prohibited by law or by its rules
may be adopted.

The COMELEC lastly submits that while due process requires giving the
parties an opportunity to intervene in all stages of the proceedings, the COMELEC
in the present case is not actually conducting further proceedings requiring notice
to the parties; there is no revision or correction of the ballots, as the election protest
had already been submitted for resolution. When the COMELEC coordinated with
the SET, it was simply for purposes of resolving the submitted provincial election
contest before it; the parties do not take part in this aspect of the case which
necessarily requires utmost secrecy. On the whole, the petitioner was afforded
every opportunity to present his case. To now hold the election protest hostage
until the conclusion of the protest pending before the SET defeats the
COMELECs mandate of ensuring free, orderly and honest election.

THE COURTS RULING

We review the present petition on the basis of the combined application of
Rules 64 and 65 of the Rules of Court. While COMELEC jurisdiction over the
Bulacan election contest is not disputed, the legality of subsequent COMELEC
action is assailed for having been undertaken with grave abuse of discretion
amounting to lack or excess of jurisdiction. Thus, our standard of review is grave
abuse of discretion, a term that defies exact definition, but generally refers to
capricious or whimsical exercise of judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must be patent and gross as to amount to an
evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to
act at all in contemplation of law, as where the power is exercised in an arbitrary
and despotic manner by reason of passion and hostility.
[6]
Mere abuse of
discretion is not enough; the abuse must be grave to merit our positive action.
[7]


After due consideration, we find the petition devoid of merit.

The petition is anchored on the alleged conduct of proceedings in the
election protest following the completed revision of ballots at the SET premises
without notice to and without the participation of the petitioner. Significantly, the
conduct of proceedings is confirmed by the SET Secretary in the letter we quoted
above.
[8]
As the issues raised show the petitioners focus is not really on the
COMELEC Orders denying the suspension of proceedings when the ballot boxes
and other election materials pertinent to the election contest were transferred to the
SET; the focus is on what the COMELEC did after to the issuance of the
Resolutions. We read the petition in this context as these COMELEC Orders are
now unassailable as the period to challenge them has long passed.
[9]


The substantive issue we are primarily called upon to resolve is whether
there were proceedings within the SET premises, entitling the petitioner to notice
and participation, which were denied to him; in other words, the issue is whether
the petitioners right to due process has been violated. A finding of due process
violation, because of the inherent arbitrariness it carries, necessarily amounts to
grave abuse of discretion.

As a preliminary matter, we note that the petitioner has claimed that
COMELEC exercises judicial power in its action over provincial election contests
and has argued its due process position from this view. We take this opportunity to
clarify that judicial power in our country is vested in one Supreme Court and in
such lower courts as may be established by law.
[10]
This exclusive grant of
authority to the Judiciary is reinforced under the second paragraph of Section 1,
Article VIII of the Constitution which further states that Judicial power includes
the duty of the courts of justice to settle actual controversies involving rights
which are legally demandable and enforceable.. ., thus constitutionally locating
the situs of the exercise of judicial power in the courts.

In contrast with the above definitions, Section 2, Article IX(C) of the
Constitution lists the COMELECs powers and functions, among others, as
follows:
(1) Enforce and administer all laws and regulations relative to the conduct
of an election, plebiscite, initiative, referendum, and recall.

(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 by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests
involving elective municipal and barangay officials shall be final, executory, and
not appealable.

(3) Decide, except those involving the right to vote, all questions affecting
elections, including determination of the number and location of polling places,
appointment of election officials and inspectors, and registration of voters.

Under these terms, the COMELEC under our governmental structure is a
constitutional administrative agency and its powers are essentially executive in
nature (i.e., to enforce and administer election laws),
[11]
quasi-judicial (to exercise
original jurisdiction over election contests of regional, provincial and city officials
and appellate jurisdiction over election contests of other lower ranking officials),
and quasi-legislative (rulemaking on all questions affecting elections and the
promulgation of its rules of procedure).

Historically, the COMELEC has always been an administrative agency
whose powers have been increased from the 1935 Constitution to the present one,
to reflect the countrys awareness of the need to provide greater regulation and
protection to our electoral processes to ensure their integrity. In the 1935
Constitution, the powers and functions of the COMELEC were defined as follows:

SECTION 2. 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 and
location of polling places, and the appointment of election inspectors and of other
election officials. All law enforcement agencies and instrumentalities of the
Government, when so required by the Commission, shall act as its deputies for the
purpose of insuring free, orderly, and honest election. The decisions, orders, and
rulings of the Commission shall be subject to review by the Supreme Court.
[emphasis supplied]

These evolved into the following powers and functions under the 1973
Constitution:
(1) Enforce and administer all laws relative to the conduct of
elections.

(2) Be the sole judge of all contests relating to the elections, returns,
and qualifications of all members of the National Assembly and elective
provincial and city officials.

(3) Decide, save those involving the right to vote, administrative
questions affecting elections, including the determination of the number and
location of polling places, the appointment of election officials and inspectors,
and the registration of voters.

These powers have been enhanced in scope and details under the 1987
Constitution, but retained all the while the character of an administrative agency.

The COMELECs adjudicative function is quasi-judicial since it is a
constitutional body, other than a court, vested with authority to decide election
contests, and in the course of the exercise of its jurisdiction, to hold hearings and
exercise discretion of a judicial nature;
[12]
it receives evidence, ascertain the facts
from these submissions, determine the law and the legal rights of the parties, and
on the basis of all these decides on the merits of the case and renders
judgment.
[13]
Despite the exercise of discretion that is essentially judicial in
character, particularly with respect to election contests, COMELEC is not a
tribunal within the judicial branch of government and is not a court exercising
judicial power in the constitutional sense;
[14]
hence, its adjudicative function,
exercised as it is in the course of administration and enforcement, is quasi-judicial.

As will be seen on close examination, the 1973 Constitution used the unique
wording that the COMELEC shall be the sole judge of all contests, thus giving
the appearance that judicial power had been conferred. This phraseology,
however, was changed in the 1987 Constitution to give the COMELEC exclusive
jurisdiction over all contests, thus removing any vestige of exercising its
adjudicatory power as a court and correctly aligning it with what it is a quasi-
judicial body.
[15]
Consistent with the characterization of its adjudicatory power as
quasi-judicial, the judicial review of COMELEC en banc decisions (together with
the review of Civil Service Commission decisions) is via the prerogative writ
of certiorari, not through an appeal, as the traditional mode of review of quasi-
judicial decisions of administrative tribunals in the exercise the Courts
supervisory authority. This means that the Court will not supplant the decision of
the COMELEC as a quasi-judicial body except where a grave abuse of discretion
or any other jurisdictional error exists.

The appropriate due process standards that apply to the COMELEC, as an
administrative or quasi-judicial tribunal, are those outlined in the seminal case
of Ang Tibay v. Court of Industrial Relations,
[16]
quoted below:

(1) The first of these rights is the right to a hearing, which includes the
right of the party interested or affected to present his own case and submit
evidence in support thereof. xxx

(2) Not only must the party be given an opportunity to present his case and
to adduce evidence tending to establish the rights which he asserts but the tribunal
must consider the evidence presented.

(3) While the duty to deliberate does not impose the obligation to decide
right, it does imply a necessity which cannot be disregarded, namely, that of
having something to support its decision. A decision with absolutely nothing to
support it is a nullity, a place when directly attached.

(4) Not only must there be some evidence to support a finding or
conclusion, but the evidence must be "substantial. "Substantial evidence is more
than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion."

(5) The decision must be rendered on the evidence presented at the
hearing, or at least contained in the record and disclosed to the parties affected.

(6) The Court of Industrial Relations or any of its judges, therefore, must
act on its or his own independent consideration of the law and facts of the
controversy, and not simply accept the views of a subordinate in arriving at a
decision.

(7) The Court of Industrial Relations should, in all controversial questions,
render its decision in such a manner that the parties to the proceeding can know
the various issues involved, and the reasons for the decisions rendered. The
performance of this duty is inseparable from the authority conferred upon it.

These are now commonly referred to as cardinal primary rights in administrative
proceedings.

The first of the enumerated rights pertain to the substantive rights of a party
at hearing stage of the proceedings. The essence of this aspect of due process, we
have consistently held, is simply the opportunity to be heard, or as applied to
administrative proceedings, an opportunity to explain ones side or an opportunity
to seek a reconsideration of the action or ruling complained of.
[17]
A formal or
trial-type hearing is not at all times and in all instances essential; in the case of
COMELEC, Rule 17 of its Rules of Procedure defines the requirements for a
hearing and these serve as the standards in the determination of the presence or
denial of due process.

The second, third, fourth, fifth, and sixth aspects of the Ang
Tibay requirements are reinforcements of the right to a hearing and are the
inviolable rights applicable at thedeliberative stage, as the decision-maker decides
on the evidence presented during the hearing. These standards set forth the
guiding considerations in deliberating on the case and are the material and
substantial components of decision-making. Briefly, the tribunal must consider the
totality of the evidence presented which must all be found in the records of the case
(i.e., those presented or submitted by the parties); the conclusion, reached by the
decision-maker himself and not by a subordinate, must be based on substantial
evidence.
[18]


Finally, the last requirement, relating to the form and substance of the
decision of a quasi-judicial body, further complements the hearing and decision-
making due process rights and is similar in substance to the constitutional
requirement that a decision of a court must state distinctly the facts and the law
upon which it is based.
[19]
As a component of the rule of fairness that underlies due
process, this is the duty to give reason to enable the affected person to
understand how the rule of fairness has been administered in his case, to expose the
reason to public scrutiny and criticism, and to ensure that the decision will be
thought through by the decision-maker.

In the present case, the petitioner invokes both the due process component
rights at the hearing and deliberative stages and alleges that these component rights
have all been violated. We discuss all these allegations below.

The Right to Notice and to be Heard.

a. At the Hearing and Revision of Ballots.

Based on the pleadings filed, we see no factual and legal basis for the
petitioner to complain of denial of his hearing stage rights. In the first place, he
does not dispute that he fully participated in the proceedings of the election protest
until the case was deemed submitted for resolution; he had representation at the
revision of the ballots, duly presented his evidence, and summed up his case
through a memorandum. These various phases of the proceedings constitute the
hearing proper of the election contest and the COMELEC has more than satisfied
the opportunity to be heard that the Ang Tibay hearing stage rights require. In
these proceedings, the petitioner stood head-to-head with the respondent in an
adversarial contest where both sides were given their respective rights to speak,
make their presentations, and controvert each others submission, subject only to
established COMELEC rules of procedures. Under these undisputed facts, both
parties had their day in court, so to speak, and neither one can complain of any
denial of notice or of the right to be heard.



b. At the Proceedings at the SET.

A critical question to be answered in passing upon due process questions at
this stage of the election contest is the nature of the so-called proceedings after
the ballots and other materials pertinent to the provincial election contest were
transferred to the SET.

In the petition, the petitioner alleged that there were strange
proceedings
[20]
which were unilateral, clandestine and surreptitious within the
premises of the SET, on documents, ballots and election materials whose
possession and custody have been transferred to the SET, and the petitioner was
NEVER OFFICIALLY NOTIFIED of the strange on-goings at the
SET.
[21]
Attached to the petition was the letter of the Secretary of the SET
confirming the conduct of proceedings in the provincial election contest, and
citing as basis the authority of Acting SET Chairman, Justice Antonio T. Carpio,
upon the formal request of the Office of Commissioner Lucenito N. Tagle, and
citing Section 3, COMELEC Resolution No. 2812 dated 17 October 1995 on the
coordination envisioned among the COMELEC, the SET and the courts so as not
to delay or interrupt therevision of ballots being conducted. While the SET letter
made the reservation that While the said provision speaks only of revision, it has
been the practice of the Tribunal to allow the conduct of other proceedings in local
election protest cases within its premises as may be requested, no mention
whatsoever was made of the kind of proceedings taking place.

It was at this point that this Court intervened, in response to the petitioners
prayer for the issuance of temporary injunctive relief, through the issuance of a
Status Quo Order with a non-extendible directive for the respondents to file their
comments on the petition; for indeed, any further revision of ballots or other
adversarial proceedings after the case has been submitted for resolution, would not
only be strange and unusual but would indicate a gross violation of due process
rights.

After consideration of the respondents Comments and the petitioners
petition and Reply, we hold that the contested proceedings at the SET (contested
proceedings) are no longer part of the adversarial aspects of the election contest
that would require notice of hearing and the participation of the parties. As the
COMELEC stated in its Comment and without any contrary or disputing claim in
the petitioners Reply:
[22]


However, contrary to the claim of petitioner, public respondent in the
appreciation of the contested ballots in EPC No. 2007-44 simultaneously with the
SET in SET Case No. 001-07 is not conducting further proceedings requiring
notice to the parties. There is no revision or correction of the ballots because EPC
No. 2007-04 was already submitted for resolution. Public respondent, in
coordinating with the SET, is simply resolving the submitted protest case before
it. The parties necessarily take no part in said deliberation, which require utmost
secrecy. Needless to state, the actual decision-making process is supposed to be
conducted only by the designated members of the Second Division of the public
respondent in strict confidentiality.

In other words, what took place at the SET were the internal deliberations of the
COMELEC, as a quasi-judicial body, in the course of appreciating the evidence
presented and deciding the provincial election contest on the merits. These
deliberations are no different from judicial deliberations which are considered
confidential and privileged.
[23]
We find it significant that the private respondents
Comment fully supported the COMELECs position and disavowed any
participation in the contested proceeding the petitioner complained about. The
petitioner, on the other hand, has not shown that the private respondent was ever
present in any proceeding at the SET relating to the provincial election contest.

To conclude, the rights to notice and to be heard are not material
considerations in the COMELECs handling of the Bulacan provincial election
contest after the transfer of the ballot boxes to the SET; no proceedings at the
instance of one party or of COMELEC has been conducted at the SET that would
require notice and hearing because of the possibility of prejudice to the other
party. The COMELEC is under no legal obligation to notify either party of the
steps it is taking in the course of deliberating on the merits of the provincial
election contest. In the context of our standard of review for the petition, we see
no grave abuse of discretion amounting to lack or excess of jurisdiction committed
by the COMELEC in its deliberation on the Bulacan election contest and the
appreciation of ballots this deliberation entailed.

Alleged Violations of
Deliberation Stage Rights.

On the basis of the above conclusion, we see no point in discussing any
alleged violation of the deliberative stage rights. First, no illegal proceeding ever
took place that would bear the poisonous fruits that the petitioner
fears. Secondly, in the absence of the results of the COMELEC deliberations
through its decision on the election protest, no basis exists to apply the Ang
Tibay deliberative stage rights; there is nothing for us to test under the standards of
the due process deliberative stages rights before the COMELEC renders its
decision. Expressed in terms of our standard of review, we have as yet no basis to
determine the existence of any grave abuse of discretion.

Conduct of COMELEC
Deliberations at the SET Premises

We turn to the issue of the propriety of the COMELECs consideration of
the provincial election contest (specifically its appreciation of the contested
ballots) at the SET premises and while the same ballots are also under
consideration by the SET for another election contest legitimately within the SETs
own jurisdiction.

We state at the outset that the COMELEC did not lose jurisdiction over the
provincial election contest, as the petitioner seems to imply, because of the
transmittal of the provincial ballot boxes and other election materials to the
SET. The Constitution conferred upon the COMELEC jurisdiction over election
protests involving provincial officials. The COMELEC in this case has lawfully
acquired jurisdiction over the subject matter, i.e., the provincial election contest, as
well as over the parties. After its jurisdiction attached, this jurisdiction cannot be
ousted by subsequent events such as the temporary transfer of evidence and
material records of the proceedings to another tribunal exercising its own
jurisdiction over another election contest pursuant to the Constitution. This is the
rule of adherence of jurisdiction.
[24]


Thus, the jurisdiction of the COMELEC over provincial election contest
exists side by side with the jurisdiction of the Senate Electoral Tribunal, with each
tribunal being supreme in their respective areas of concern (the Senate election
contests for the SET, and the regional, provincial and city election contests for the
COMELEC), and with neither one being higher than the other in terms of
precedence so that the jurisdiction of one must yield to the other.

But while no precedence in jurisdiction exists, the COMELEC, vowing to
the reality that only a single ballot exists in an election for national and local
officials, saw it fit to lay down the rule on the order of preference in the custody
and revision of ballots and other documents contained in the ballot boxes. The
order, in terms of the adjudicatory tribunal and as provided in COMELEC
Resolution No. 2812, runs:

1. Presidential Electoral Tribunal;
2. Senate Electoral Tribunal;
3. House of Representatives Electoral Tribunal;
4. Commission on Elections; and
5. Regional Trial Courts.

This order of preference dictated that the ballot boxes and other election materials
in Bulacans provincial election contest, had to be transferred to the SET when the
latter needed these materials for its revision of ballots. The transfer to the SET,
however, did not mean that the Bulacan provincial election contest at that time
already submitted for decision had to be suspended as the COMELEC held in its
Orders of 29 April 2009 and 26 May 2009 in EPC No. 2007-44.
[25]
This is
particularly true in Bulacans case as no revision had to be undertaken, the revision
having been already terminated.

With the COMELEC retaining its jurisdiction over the Bulacan provincial
election contest, the legal effect of the physical transfer of the ballots and other
election materials to the SET for purposes of its own revision becomes a non-issue,
given the arrangement between the COMELEC and the SET, pursuant
to COMELEC Resolution No. 2812, to coordinate and make arrangements with
each other so as not to delay or interrupt the revision of ballots being conducted,
all for the purpose of the expeditious disposition of their respective protest
cases. The SET itself honored this arrangement as shown by the letter of the SET
Secretary that the COMELEC could conduct proceedings within the Tribunal
premises as authorized by the Acting Chairman of the Tribunal, Justice Antonio T.
Carpio.
[26]
This arrangement recognized the COMELECs effective authority over
the Bulacan ballots and other election materials, although these were temporarily
located at the SET premises. This arrangement, too, together with the side by side
and non-conflicting existence of the COMELEC and SET jurisdictions, negate the
validity of the petitioners argument that the COMELEC transgressed the rule on
separation of powers when it acted on the Bulacan provincial election contest
while the ballot boxes were at the SET premises. Rather than negate, this
arrangement reinforced the separate but co-existing nature of these tribunals
respective jurisdictions.

As the petitioner argues and the COMELEC candidly admits, there is no
specific rule which allows the COMELEC to conduct an appreciation of ballots
outside its premises and of those which are outside its own custody.
[27]
But while
this is true, there is likewise nothing to prohibit the COMELEC from undertaking
the appreciation of ballot side by side with the SETs own revision of ballots for
the senatorial votes, in light especially of the COMELECs general authority to
adopt means to effect its powers and jurisdiction under its Rules of
Procedure. Section 4 of these Rules states:

Sec. 4. Means to Effect Jurisdiction. - All auxiliary writs, processes and other
means necessary to carry into effect its powers or jurisdiction may be employed
by the Commission; and if the procedure to be followed in the exercise of such
power or jurisdiction is not specifically provided for by law or these rules, any
suitable process or proceeding may be adopted.

This rule is by no means unusual and unique to the COMELEC as the courts have
the benefit of this same type of rule under Section 6, Rule 136 of the Rules of
Court. The courts own rule provides:

Means to Carry Jurisdiction into Effect. When by law jurisdiction is
conferred o n a court or judicial officer, all auxiliary writs, writs, processes and
other means necessary to carry it into effect may be employed by such court or
officer; and if the procedure to be followed in the exercise of such jurisdiction is
not specifically pointed out by law or by these rules, any suitable process or mode
of proceeding may be adopted which appears conformable to the spirit of said law
or rules.


Incidentally, the COMELEC authority to promulgate the above rule enjoys
constitutional moorings; in the grant to the COMELEC of its jurisdiction, the
Constitution provided it with the accompanying authority to promulgate its own
rules concerning pleadings and practice before it or before any of its offices,
provided that these rules shall not diminish, increase or modify substantive
rights.
[28]
The Constitution additionally requires that the rules of procedure that the
COMELEC will promulgate must expedite the disposition of election cases,
including pre-proclamation controversies.
[29]
This constitutional standard is
authority, no less, that the COMELEC can cite in defending its action. For
ultimately, the appreciation of the Bulacan ballots that the COMELEC undertook
side by side with the SETs own revision of ballots, constitutes an exercise of
discretion made under the authority of the above-cited COMELEC rule of
procedure.

On the basis of the standards set by Section 4 of the COMELEC Rules
of Procedure, and of the Constitution itself in the handling of election cases,
we rule that the COMELEC action is a valid exercise of discretion as it is a
suitable and reasonable process within the exercise of its jurisdiction over
provincial election contests, aimed at expediting the disposition of this case,
and with no adverse, prejudicial or discriminatory effects on the parties to the
contest that would render the rule unreasonable.

Since the COMELEC action, taken by its Second Division, is authorized
under the COMELEC Rules of Procedure, the Second Division cannot in any sense
be said to be intruding into the COMELEC en banc rule-making prerogative when
the Second Division chose to undertake ballot appreciation within the SET
premises side by side with the SET revision of ballots. To be exact, the Second
Division never laid down any new rule; it merely acted pursuant to a rule that the
COMELEC en banc itself had previously enacted.

In light of these conclusions, we need not discuss the other issues raised.

WHEREFORE, premises considered, we DISMISS the petition for
certiorari for lack of merit. We accordingly LIFT the STATUS QUO
ORDER we issued, effective immediately.

SO ORDERED.

ARTURO D. BRION
Associate Justice


WE CONCUR:


(On official leave)
REYNATO S. PUNO
Chief Justice




LEONARDO A. QUISUMBING
Acting Chief Justice




RENATO C. CORONA
Associate Justice





MINITA V. CHICO-NAZARIO
Associate Justice




ANTONIO EDUARDO B. NACHURA
Associate Justice




DIOSDADO M. PERALTA
Associate Justice
ANTONIO T. CARPIO
Associate Justice




CONCHITA CARPIO MORALES
Associate Justice




(On official leave)
PRESBITERO J. VELASCO, JR.
Associate Justice




TERESITA J. LEONARDO-DE CASTRO
Associate Justice




LUCAS P. BERSAMIN
Associate Justice



(On official leave)
MARIANO C. DEL CASTILLO ROBERTO A. ABAD
Associate Justice Associate
Justice




CERTIFICATION


Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court.



LEONARDO A. QUISUMBING
Acting Chief Justice




*
On official leave.
**
Acting Chief Justice from October 12 to 16, 2009 per Special Order No. 721 dated October 5, 2009.
***
On official leave.
****
On official leave.
[1]
Filed under Rule 64, in relation to Rule 65, of the Rules of Court.
[2]
See Petition, p. 12.
[3]
Rollo, p. 45.
[4]
J. Bernas, Constitutional Structure and Powers of Government, 2005, pp. 718-719.
[5]
I. Cruz, Constitutional Law, 2003, p. 14.
[6]
Quintos v. Commission on Elections, G.R. No. 149800, November 21, 2002, 392 SCRA 489.
[7]
Suliguin v. Commission on Elections, G.R. No. 166046, March 23, 2006, 485 SCRA 219.
[8]
Supra note 3.
[9]
See Section 3, Rule 64 of the Rules of Court. The petitioner received the COMELEC Resolution denying his
motion for reconsideration on June 1, 2009. Thirty (30) days later or on July 1, 2009, he filed a motion for
extension of time to file the petition. The petition cannot but be late because of the remainder rule under Section 3,
Rule 64.
[10]
Section 1 (first paragraph), Article VIII, 1987 Constitution.
[11]
Ututalum v. Commission on Elections, G.R. No. L-25349, December 3, 1965, 15 SCRA 465.
[12]
See: Presidential Anti-Dollar Salting Task Force v. Court of Appeals, G.R. No. 83578, March 16, 1989, 171
SCRA 348; Midland Insurance Corporation v. IAC, No. L-71905, August 13, 1986, 143 SCRA 458.
[13]
See: Cario v. Commission on Human Rights, G.R. No. 96681, December 2, 1991, 204 SCRA 483, on the
activities encompassed by the exercise of quasi-judicial power.
[14]
See: Cipriano v. COMELEC, G.R. No. 158830, August 10, 2004, 436 SCRA 45, citing Sandoval v. COMELEC,
323 SCRA 403 [2000].
[15]
The Senate and House of Representatives Electoral Tribunals, as provided in the Constitution are still the sole
judge of their respective election contests, but like the COMELEC, they are quasi-judicial bodies and do not
exercise judicial power under the Constitution. For its part, the Presidential Electoral Tribunal, wholly composed of
the Justices of the Supreme Court, is not a quasi-judicial body because adjudicative power is given to the Supreme
Court, as a court sitting en banc.
[16]
69 Phil. 635 (1940).
[17]
Bautista v. Comelec, G.R. Nos. 154796-97, October 23, 2003, 414 SCRA 299.
[18]
Supra note 17.
[19]
CONSTITUTION, Article VIII, Section 14; See Solid Homes, Inc. v. Laserna, G.R. No. 166051, April 8, 2008,
550 SCRA 613.
[20]
Rollo, p. 12.
[21]
Id., p. 13.
[22]
COMELEC Comment; rollo, pp. 72-S and 72-T.
[23]
See Chavez v. Public Estates Authority, G.R. No. 133250, July 9, 2002, 384 SCRA 152.
[24]
See: Ramos v. Central Bank of the Philippines, No. L-29352, October 4, 1971, 41 SCRA 565; Bengzon v.
Inciong, Nos. L-48706-07, June 29, 1079, 91 SCRA 248; Baltazar v. CA, 104 SCRA 619 [1981]; Ramos v. Our
Lady of Peace School, No. L-55950,December 26, 1984, 133 SCRA 741; Lee v. Presiding Judge, MTC
Legazpi City, No. L-68789, November 10, 1986, 145 SCRA 408.
[25]
Rollo, pp. 29-34.
[26]
Supra note 3.
[27]
Petition, pp. 1314; rollo, pp. 18-19; COMELEC Reply; rollo, pp. 72-R 72-S.
[28]
CONSTITUTION, Article IX-A, Section 6.
[29]
CONSTITUTION, Article IX-C, Section 3.









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Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 118861 April 27, 1995
EMMANUEL M. RELAMPAGOS, petitioner,
vs.
ROSITA C. CUMBA and the COMMISSION ON ELECTIONS, respondents.

DAVIDE, JR., J .:
This special civil action of certiorari under Rule 65 of the Rules of Court 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 jurisdiction In the split decision of 4 March 1992 in the consolidated cases of Garcia vs. De Jesus and Uy vs.
Commission on Elections,
1
this Court ruled in the negative because of the absence of any specific conferment upon the
COMELEC, either by the constitution or by legislative fiat, of 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 these two classes of jursdiction are exclusive of each other, each must 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 authority to
issue the aforesaid writs involves the exercise of original jurisdiction which has always been expressly conferred either by
Constitution or by law. It is never derived by implication. Although the Constitution grants the COMELEC appellate jurisdiction, it
does not grant it 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 also pointed out that the doctrines
laid down in Pimentel vs. COMELEC
2
that neither the Constitution nor any law has conferred jurisdiction on the COMELEC to
issue such writs still finds application under the 1987 Constitution.
In the decision of 29 July 1992 in Veloria vs. Commission on Elections,
3
this Court reiterated the Garcia and Uy doctrine.
In the challenged resolution at bench, the respondent COMELEC adhered to the affirmative view of the issue, citing as authority
therefore its own decision of 29 July 1993 in Dictado vs. Cosico and the last paragraph of Section 50 of B. P. Blg. 697, which
reads:
Sec. 50. Definition.
xxx xxx xxx
The Commission is hereby vested with exclusive authority to hear and decide petitions
for certiorariprohibition, and mandamus involving election cases.
The petitioner herein pleads that this resolution be set aside and nullified for having been issued with grave abuse of discretion
amounting to lack or excess of jurisdiction. He contends that while the COMELEC's position is inherently compelling, it deserves
scant consideration in view of Garcia and Uy and Veloria and the nature and purpose of B. P. Blg. 697 which was to govern
solely the Batasang Pambansa election of 14 May 1984; hence, it was a temporary statute which self-destructed after such
election.
The antecedent facts that led to the filing of this action are uncomplicated and undisputed.
In the synchronized elections of 11 May 1992, the petitioner and private respondent Rosita Cumba were candidates for the
position of Mayor in the municipality of Magallanes, Agusan del Norte. The latter was proclaimed the winning candidate, with a
margin of only twenty-two votes over the former.
Unwilling to accept defeat, the petitioner filed an election protest with the Regional Trial Court (RTC) of Agusan del Norte, which
was assigned to Branch 2 thereof in Butuan City.
On 29 June 1994, the trial court, per Judge Rosario F. Dabalos, found the petitioner to have won with a margin of six votes over
the private respondent and rendered judgement in favor of the petitioner as follows:
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.
Copies of the decision were sent to and received by the petitioner and the private respondent on 1 July 1994.
On 4 July 1994, the private respondent appealed the decision to the COMELEC by filing her notice of appeal and paying the
appellate docket fees.
On 8 July 1994, the trial court gave due course to the appeal.
On 12 July 1994, the petitioner filed with the trial court a motion for execution pending appeal, which the private respondent
opposed on 22 July 1994.
On 3 August 1994, the trial court granted the petitioner's motion for execution pending appeal. The corresponding writ of
execution was forthwith issued. Thereafter, the private respondent filed a motion for a reconsideration of the order of execution
and the sheriff held in abeyance the implementation of the writ. This motion was denied on 5 August 1994.
The private respondent then filed with the respondent COMELEC a petition for certiorari to annul the aforesaid other of the trial
court granting the motion for execution pending appeal and the writ of execution. The petition was docketed as SPR No. 1-94.
On 9 February 1995, the COMELEC promulgated its resolution granting the petition.
4
The dispositive portion thereof reads as
follows:
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 andmandamus 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
thatimplied 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, 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
havecertiorari 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
ormandamus 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 certiorari in 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 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:
Sec. 50. Definition.
xxx xxx xxx
The Commission is hereby vested with the exclusive authority to hear and decide petitions forcertiorari,
prohibition and mandamus involving election cases. (Emphasis supplied).
it is quite clear that the exercise of the power was not restricted within a specific period of time. Taken in the context of the
conspicuous absence of such jurisdiction as ruled in Pimentel vs. Commission on Elections,
12
it 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 said case.
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

This Court is not unaware of the equally settled rule in statutory construction 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

By the tenor of its aforequoted Repealing Clause, it does not evidently 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 second sentence, a reservation
that all prior election statutes or parts thereof not inconsistent with any provisions of the Code shall remain in force. That
sentence
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 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 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 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.
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:
The Commission is hereby 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.
The jurisdiction of the COMELEC having been settled, we now proceed to review the substance of the challenged resolution.
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.
No pronouncemnt as to costs.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Romero, Bellosillo, Quiason, Puno, Vitug, and Mendoza, JJ., concur.
Regalado, J., concurs in the result.
Melo, Kapunan and Francisco, JJ., are on leave.

Footnotes
1 G.R. No. 88158 and G.R. No. 97108-09, respectively, 206 SCRA 779 [1992]. The voting was 7-6. Per
Melencio-Herrera, J., with the concurrence of Cruz (who wrote a separate opinion), Padilla, Grio-Aquino,
Regalado, Romero, and Nocon, JJ.; and with Bidin, J., dissenting, with whom Narvasa, C. J.,Gutierrez,
Jr., Feliciano, Medialdea, and Davide, Jr., JJ., concur. Paras, J.; took no part.
2 101 SCRA 769 [1980].
3 211 SCRA 907 [1992].
4 Annex "H" of Petition; Rollo, 20-43. By a 4-2 vote.
5 Rollo, 25-30, 39-41.
6 Id., 41.
7 Rollo, 67 et seq.
8 Dispositive portion of the Resolution; Rollo, 42. EAC is the docket designation for appealed cases,
while SPR is for special relief cases (Section 4, Rule 7, to COMELEC Rules of Procedure).
9 Supra note 1.
10 Supra note 3.
11 Passed on 28 November 1985 and approved on 3 December 1985.
12 Supra note 2.
13 C. DALLAS SANDS, Sutherland, Statutes and Statutory Construction. 23.08 (Vol. 14, 4th ed. 1972).
14 RUBEN E; ACPALO, Statutory Construction 284 [2nd ed. 1990], citing People vs. Benuya, 61 Phil. 208
[1935].
15 AGPALO, op. cit., at 292, citing Iloilo Palay and Corn Planters Assn., Inc. vs. Feliciano, 13 SCRA 377
[1965]; City of Naga vs. Agna, 71 SCRA 176 [1976].
16 Section 3, Rule 22, in relation to Section 20, Rule 35, COMELEC Rules of Procedure.
17 Bank of the Philippine Islands vs. East Molasses Corp., 198 SCRA 689 [1991].
18 Fortune Life & General Insurance Co., Inc. vs. Court of Appeals, 224 SCRA 829 [1993].

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 185222 January 19, 2010
JESUS M. CALO, Petitioner,
vs.
COMMISSION ON ELECTIONS and RAMON "MONCHING RMC" M. CALO, Respondents.
D E C I S I O N
CORONA, J .:
This case could have been an ordinary election contest. However, despite the rather technical issue that we are tasked to
resolve here, this case shows that, while blood is usually thicker than water, politics, in some very few instances, may actually be
thicker than blood and may be no respecter even of family ties.
Respondent Ramon M. Calo was proclaimed winner in the May 14, 2007 mayoralty race in the Municipality of Carmen, Province
of Agusan del Sur. His opponent, petitioner Jesus M. Calo, is his brother, whom he beat by 278 votes. Petitioner filed an election
protest in the Regional Trial Court (RTC) of Butuan City, Branch 3, questioning the election results in 36 of out of the 56
precincts.
On February 8, 2008, the RTC issued its decision on the protest finding petitioner to have received the majority votes and
declaring him the duly elected mayor, on two grounds: (1) 981 votes were considered by the RTC as stray votes and deducted
from respondents 4,818 votes giving petitioner, who had 4,540 votes, an edge of 703 votes in his favor and (2) based on marked
ballots, claimed ballots, written by one (WBO) ballots, written by two (WBT) ballots and stray ballots, 315 votes were also
deducted from respondent, leaving the latter with 4,503 votes as against petitioners 4,540 or a difference of 37 votes.
1

Petitioner filed a motion for the issuance of a writ of execution pending appeal on February 12, 2008. On the same date,
respondent filed his notice of appeal.
On February 15, 2008, the RTC issued its special order granting petitioners motion for the issuance of a writ of execution
pending appeal. Respondent sought reconsideration of this special order on February 19, 2008. On the same date, the RTC
ordered the transmittal of the records to the COMELEC.
Before the RTC could act on the motion for reconsideration filed by respondent on February 19, 2008, respondent forthwith filed
a petition for certiorari and prohibition with the Commission on Elections (COMELEC) docketed as SPR No. 46-2008, raising as
ground the grave abuse of discretion committed by the RTC.
On July 30, 2008, the COMELEC First Division issued its resolution granting the petition in SPR No. 46-2008, setting aside the
RTC special order dated February 15, 2008, quashing the accompanying writ of execution, issuing a status quo ante order
directing the parties to observe the status quo prevailing prior to the February 15, 2008 special order and directing respondent to
continue as the municipal mayor of the Municipality of Carmen. Petitioner filed a motion for reconsideration, which was denied by
the COMELEC En Banc per resolution dated November 13, 2008.
Hence, the present petition for certiorari and prohibition under Rule 65 of the Rules of Court, based on the following grounds:
A. The COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in finding,
through the questioned Resolutions dated 30 July 2008 and 13 November 2008, that the RTC Judge committed
grave abuse of discretion amounting to lack of jurisdiction in issuing that Special Order dated 15 February, 2008.
B. The petitioner is entitled to injunctive relief from the Honorable Supreme Court.
The Court finds merit in the petition.
Section 11, Rule 14 of A.M. No. 07-4-15-SC
2
sets the standards in the grant or denial of a motion for execution pending appeal in
election contests involving elective municipal and barangay officials, to wit
SEC. 11. Execution pending appeal. On motion of the prevailing party with notice to the adverse party, the court, while still in
possession of the original records, may, at its discretion, order the execution of the decision in an election contest before the
expiration of the period to appeal, subject to the following rules:
(a) There must be a motion by the prevailing party with three-day notice to the adverse party. Execution pending
appeal shall not issue without prior notice and hearing. There must be good reasons for the execution pending
appeal. The court, in a special order, must state the good or special reasons justifying the execution pending
appeal. Such reasons must:
(1) constitute superior circumstances demanding urgency that will outweigh the injury or damage should
the losing party secure a reversal of the judgment on appeal; and
(2) be manifest, in the decision sought to be executed, that the defeat of the protestee or the victory of the
protestant has been clearly established.
(b) If the court grants execution pending appeal, an aggrieved party shall have twenty working days from notice of
the special order within which to secure a restraining order or status quo order from the Supreme Court or the
Commission on Elections. The corresponding writ of execution shall issue after twenty days, if no restraining
order or status quo order is issued. During such period, the writ of execution pending appeal shall be stayed.
The sole issue in this case is whether the RTC abided by the standards set forth in the foregoing rule when it granted petitioners
motion for execution pending appeal.
In setting aside the RTC special order dated February 15, 2008, the COMELEC ruled that the issuance of the writ of execution
pending appeal failed to satisfy the requirements laid down in Rule 14, Section 11 of A.M. No. 07-4-15-SC. According to the
COMELEC, the notice of the RTCs clerk of court violated the 3-day notice rule inasmuch as respondent was only given one day
from the filing of the motion within which to submit his opposition.
The relevant rule provides that a motion for execution pending appeal filed by the prevailing party shall contain a three-day notice
to the adverse party and execution pending appeal shall not issue without prior notice and hearing.
It should be emphasized that these requirements are for the purpose of avoiding surprises that may be sprung upon the adverse
party who must be given time to study and meet the arguments in the motion before a resolution by the court.
3
Where a party had
the opportunity to be heard, then the purpose has been served and the requirement substantially complied with.
4
In this case,
even the COMELEC admitted that respondent was heard and afforded his day in court;
5
hence, it should not have annulled the
RTC special order on said ground.
The COMELEC also found that respondents presumptive victory must prevail in the light of the fact that, in the event that the
RTCs appreciation of the votes is overturned, then respondent would still be the winning candidate. The COMELEC thus
concluded that it was more prudent to preserve the status quo prior to the RTC decision dated February 8, 2008 so as not to
disrupt government service.
In the recent case of Pecson v. COMELEC,
6
the Court ruled that:
x x x decisions of the courts in election protest cases, resulting as they do from a judicial evaluation of the ballots and
after full-blown adversarial proceedings, should at least be given similar worth and recognition as decisions of the
board of canvassers. This is especially true when attended by other equally weighty circumstances of the case, such as the
shortness of the term of the contested elective office, of the case.
7
(Emphasis supplied)
The Court also stressed in Pecson that disruption of public service cannot per se be a basis to deny execution pending appeal
We additionally note that "disruption of public service" necessarily results from any order allowing execution pending appeal and
is a concern that this Court was aware of when it expressly provided the remedy under the Rules. Such disruption is therefore
an element that has been weighed and factored in and cannot beper se a basis to deny execution pending
appeal.
8
(Emphasis supplied)
Similarly in this case, the COMELEC should have accorded respect and weight to the RTCs decision proclaiming petitioner as
winner. Note that aside from the evidence presented by the parties during the election contest and the expert testimony of the
witnesses from the National Bureau of Investigation, the RTC made its own assessment and findings on the contested ballots.
On the basis of all this, the RTC concluded that "[petitioner] will still have the plurality of 981 votes in favor of [petitioner] and 315
votes also for [petitioner], respectively."
9
It was also the RTCs conclusion that "the victory of the protestant has been clearly
established."
10
Aside from these, the RTC also laid down the superior circumstances necessitating the grant of execution pending
appeal: (1) allowing the status quo to continue would unjustly give premium to the perpetrators of fraud, anomalies and
irregularities and suppress the will of the electorate; (2) the sovereign will of the people should be given utmost respect and (3)
the injury or damage to be sustained by petitioner would outweigh the injury or damage of respondent.
11

Given that the RTCs exercise of its discretionary power to grant execution pending appeal per special order dated February 15,
2008 was not tainted with any bias or capricious and whimsical arbitrariness, we find that the COMELEC committed an error in
annulling and setting it aside.
WHEREFORE, the petition is hereby GRANTED. The COMELEC resolutions dated July 30, 2008 and November 13, 2008
are ANNULLED and the RTC special order dated February 15, 2008 is hereby REINSTATED.
SO ORDERED.
RENATO C. CORONA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
ROBERTO A. ABAD
Associate Justice
MARTIN S. VILLARAMA, JR.
Associate Justice
JOSE P. PEREZ
Associate Justice
JOSE C. MENDOZA
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
1
Rollo, pp. 156, 186.
2
Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials.
3
Jehan Shipping Corporation v. National Food Authority, G.R. No. 159750, 14 December 2005, 477 SCRA 781,
788-789.
4
Vette Industrial Sales Co., Inc. v. Cheng, G.R. No. 170232, 5 December 2006, 509 SCRA 532, 545-546,
citing Vlason Enterprises Corporation v. Court of Appeals, 369 Phil. 269 (1999).
5
Rollo, p. 35.
6
G.R. No. 182865, 24 December 2008, 575 SCRA 634.
7
Id., p. 652.
8
Id., p. 649.
9
Rollo, p. 186.
10
Id., p. 205.
11
Id., pp. 205-206.

The Lawphil Project - Arellano Law Foundation



EN BANC

ROMULO F. PECSON, Petitioner,




- versus -




COMMISSION ON ELECTIONS, DEPARTMENT OF
INTERIOR AND LOCAL GOVERNMENT and LYNDON A.
CUNANAN, Respondents.
G.R. No. 182865

Present:

PUNO, C.J.,
QUISUMBING,
YNARES-
SANTIAGO,
CARPIO,
AUSTRIA-
MARTINEZ,
CORONA,
CARPIO
MORALES,
AZCUNA,
TINGA,
CHICO-
NAZARIO,
VELASCO,
JR.,
NACHURA,
REYES,
LEONARDO-
DE CASTRO,
and
BRION, JJ.

Promulgated:


December 24,
2008

x --------------------------------------------------------------------------------------------x
D E C I S I O N

BRION, J .:

This petition for certiorari filed by Romulo F. Pecson (Pecson) under Rule
64, in relation with Rule 65 of the Revised Rules of Court seeks to set aside and
annul the Resolution dated May 21, 2008 of the Commission on Elections en
banc (COMELEC) in SPR 60-2007.
[1]
The assailed Resolution nullified the grant
(via a Special Order) bythe Regional Trial Court (RTC), Branch 56, Angeles City,
of the execution pending appeal of its Decision in the election contest between
Pecson and the private respondent Lyndon A. Cunanan (Cunanan), the proclaimed
winner in the 2007 mayoralty election in Magalang, Pampanga.

THE ANTECEDENTS

Pecson and Cunanan were candidates for the mayoralty position in
the Municipality of Magalang, Province of Pampanga in the May 2007
elections. On May 17, 2007, Cunanan was proclaimed the winning candidate,
garnering a total of 12,592 votes as against Pecsons 12,531, or a margin of 61
votes. Cunanan took his oath and assumed the position of Mayor of
Magalang. Soon thereafter, Pecson filed an election protest, docketed as EPE No.
07-51, with the RTC.

On November 23, 2007, the RTC rendered a Decision in Pecsons favor. The
RTC ruled that Pecson received a total of 14,897 votes as against Cunanans
13,758 a vote margin of 1,139.

Cunanan received a copy of the Decision on November 26, 2007 and filed a
Notice of Appeal the day after. The RTC issued on November 27, 2008 an Order
noting the filing of the notice of appeal and the payment of appeal fee and
directing the transmittal of the records of the case to the Electoral Contests
Adjudication Department (ECAD) of the COMELEC. Pecson, on the other hand,
filed on November 28, 2007 an Urgent Motion for Immediate Execution Pending
Appeal, claiming that Section 11, Rule 14 of the Rules of Procedure in Election
Contests before the Courts Involving Elective Municipal and Barangay
Officials
[2]
(Rules) allows this remedy.

The RTC granted Pecsons motion for execution pending appeal via a
Special Order dated December 3, 2007 (Special Order) but suspended, pursuant to
the Rules, the actual issuance of the writ of execution for twenty (20) days. The
Special Order states the following reasons:
1. The result of the judicial revision show[s] that the protestant garnered 14,897
votes as against protestees 13,758 votes or a plurality of 1,139 votes. The victory of the
protestant is clearly and manifestly established by the rulings and tabulation of results
made by the Court x x x;

2. It is settled jurisprudence that execution pending appeal in election cases should
be granted to give as much recognition to the worth of a trial judges decision as that
which is initially ascribed by the law to the proclamation by the board of
canvassers. The Court holds that this wisp of judicial wisdom of the Supreme Court
enunciated in the Gahol case and subsequent cases citing it is borne by the recognition
that the decision of the trial court in an election case is nothing but the court upholding
the mandate of the voter, which has as its source no other than the exercise of the
constitutional right to vote. While it is true that the protestee can avail of the remedy of
appeal before the COMELEC, the Court is more convinced that between upholding the
mandate of the electorate of Magalang, Pampanga which is the fruit of the exercise of
the constitutional right to vote and a procedural remedy, the Court is more inclined to
uphold and give effect to and actualize the mandate of the electorate of Magalang. To
the mind of the Court, in granting execution pending appeal the Court is being true to its
bounden duty to uphold the exercise of constitutional rights and gives flesh to the
mandate of the people. The foregoing is, as far as the Court is concerned, considered
far superior circumstance that convinces the Court to grant protestants motion;

3. Public interest and the will of the electorate must be respected and given
meaning;

4. In the case of Navarosa v. Comelec, the Supreme Court held that In
the Gahol case, the Court gave an additional justification for allowing execution pending
appeal of decisions of trial courts, thus: Public policy underlies it, x x x [S]omething had
to be done to strike the death blow at the pernicious grab-the-proclamation-prolong-
the-protest technique often, if not invariably, resorted to by unscrupulous politicians
who would render nugatory the peoples verdict against them and persist in continuing
in an office they very well know they have no legitimate right to hold. x x x. A
primordial public interest is served by the grant of the protestants motion, i.e., to
obviate a hollow victory for the duly elected candidate. In the words of Chief Justice
Cesar Bengzon, The well known delay in the adjudication of election protests often
gave the successful contestant a mere pyrrhic victory, i.e., a vindication when the term
of office is about to expire or has expired.

Expectedly, Cunanan moved to reconsider the Order, arguing that the RTC gravely
abused its discretion: (1) in ruling that there were good reasons to issue a writ of
execution pending appeal; and (2) in entertaining and subsequently granting the
motion for execution pending appeal despite the issuance of an order
transmitting the records of the case.

Thereupon, Cunanan filed with the COMELEC a Petition for Application of
Preliminary Injunction with Prayer for Status Quo Ante Order/Temporary
Restraining Order (TRO) with Prayer for Immediate Raffle. He argued in his
petition that: (1) the RTC Decision did not clearly establish Pecsons victory or his
(Cunanans) defeat a requirement of Section 11, Rule 14 of the Rules; among
other reasons, the number of votes the RTC tallied and tabulated exceeded the
number of those who actually voted and the votes cast for the position of Mayor,
and (2) the RTC had constructively relinquished its jurisdiction by the issuance of
the Order dated November 27, 2007 directing the transmittal of the records of
the case.

The Second Division of the COMELEC issued on January 4, 2008 a 60-day
TRO directing: (1) the RTC to cease and desist from issuing or causing the issuance
of a writ of execution or implementing the Special Order; and (2) Cunanan to
continue performing the functions of Mayor of Magalang.

In his Answer and/or Opposition, with Prayer for Immediate Lifting of TRO,
Pecson argued that: (1) preliminary injunction cannot exist except as part or
incident of an independent action, being a mere ancillary remedy that exists only
as an incident of the main proceeding; (2) the petition for application of
preliminary injunction, as an original action, should be dismissed outright; and
(3) Cunanan is guilty of forum shopping, as he filed a motion for reconsideration
of the Special Order simultaneously with the petition filed with the COMELEC.

The COMELECs Second Division denied Cunanans petition in a Resolution
dated March 6, 2008. It ruled that: (1) the resolution of the motion for execution
pending appeal is part of the residual jurisdiction of the RTC to settle pending
incidents; the motion was filed prior to the expiration of the period to appeal and
while the RTC was still in possession of the original record; and (2) there is good
reason to justify the execution of the Decision pending appeal, as Pecsons victory
was clearly and manifestly established. Ruling on the alleged defect in the RTC
count, the Second Division ruled:
[A]fter a careful scrutiny of the Decision, We found that the error lies in the trial
courts computation of the results. In its Decision, the trial court, to the votes obtained
by the party (as per proclamation of the MBOC), deducted the votes per physical count
after revision and deducted further the invalid/nullified ballots per the trial courts
appreciation and thereafter added the valid claimed ballots per the trial courts
appreciation, thus:

Votes obtained per proclamation of the MBOC (-) Votes per physical count (-)
Invalid or nullified ballots (+) Valid claimed ballots = Total Votes Obtained

The formula used by the trial court is erroneous as it used as its reference the
votes obtained by the parties as per the proclamation of the MBOC. It complicated an
otherwise simple and straightforward computation, thus leading to the error. The
correct formula should have been as follows:

Total Number of Uncontested Ballots (
+
) Valid Contested Ballots (
+
) Valid
Claimed Ballots = Total Votes Obtained

Using this formula and applying the figures in pages 744 and 745 of the trial
courts Decision, the results will be as follows:

For the Petitioner Cunanan
Total Number of Uncontested Ballots 9,656
Add: Valid Contested Ballots 2,058
Add: Valid Claimed Ballots 36
Total Votes of Petitioner 11,750

For the Private Respondent (Pecson)
Total Number of Uncontested Ballots 9,271
Add: Valid Contested Ballots 2,827
Add: Valid Claimed Ballots 39
Total Votes of Petitioner 12,134



Using the correct formula, private respondent still obtained a plurality of the
votes cast and enjoys a margin of 384 votes over the petitioner. Although not as wide
as the margin found by the trial court, We are nevertheless convinced that the victory of
private respondent has been clearly established in the trial courts decision for the
following reasons:

First, the error lies merely in the computation and does not put in issue the
appreciation and tabulation of votes. The error is purely mathematical which will not
involve the opening of ballot boxes or an examination and appreciation of ballots. It is
a matter of arithmetic which calls for the mere clerical act of reflecting the true and
correct votes of the candidates.

Second, the error did not affect the final outcome of the election protest as to
which candidate obtained the plurality of the votes cast.

We are likewise convinced that the assailed order states good or special reasons
justifying the execution pending appeal, to wit:

(1) The victory of the protestant was clearly and manifestly established;
(2) Execution pending appeal in election cases should be granted to give as
much recognition to the worth of a trial judges decision as that which is
initially ascribed by the law to the proclamation by the board of canvassers;
(3) Public interest and the will of the electorate must be respected and given
meaning; and
(4) Public policy underlies it, as something had to be done to strike the death
blow at the pernicious grab-the-proclamation-prolong-the-protest
technique often, if not invariably resorted to by unscrupulous politicians.

Such reasons to Our mind constitute superior circumstances as to warrant the
execution of the trial courts decision pending appeal.

Pecson thus asked for the issuance of a writ of execution via an Ex-
Parte Motion. Despite Cunanans opposition, the RTC granted Pecsons motion
and issued the writ of execution on March 11, 2008. Pecson thereafter assumed
the duties and functions of Mayor of Magalang.

The Assailed Resolution

On Cunanans motion, the COMELEC en banc issued its Resolution
dated May 21, 2008 reversing the ruling of the Second Division insofar as it
affirmed the RTCs findings of good reasons to execute the decision pending
appeal. It affirmed the authority of the RTC to order execution pending appeal; it
however nullified the March 11, 2008 writ of execution on the ground that the
RTC could no longer issue the writ because it had lost jurisdiction over the case
after transmittal of the records and the perfection of the appeals of both Cunanan
and Pecson (to be accurate, the lapse of Pecsons period to appeal).

On the propriety of executing the RTC Decision pending appeal, the
COMELEC en banc ruled that it was not convinced of the good reasons stated by
the RTC in its Special Order. It ruled that recognition of the worth of a trial
judges decision, on the one hand, and the right to appeal, including the
Commissions authority to review the decision of the trial court, on the
other, requires a balancing act; and not every invocation of public interest will
suffice to justify an execution pending appeal. It added that at a stage when the
decision of the trial court has yet to attain finality, both the protestee and the
protestant are to be considered presumptive winners. It noted too that the
Second Division already cast a doubt on the correctness of the number of votes
obtained by the parties after the trial courts revision; thus, the resolution of the
pending appeal becomes all the more important. Between two presumptive
winners, considering the pending appeal of the election protest to the
Commission and public service being the prime consideration, the balance should
tilt in favor of non-disruption of government service. The execution of the RTC
Decision pending appeal would necessarily entail the unseating of the protestee,
resulting not only in the disruption of public service, but also in confusion in
running the affairs of the government; a subsequent reversal too of the RTC
Decision also results in the unseating of the protestant. This situation (i.e., the
series of turn-over of the seat of power from one presumptive winner to another)
cannot but cause irreparable damage to the people of Magalang, and overweighs
the reasons asserted by the RTC in its Special Order. In the end, according to the
COMELEC, public interest is best served when he who was really voted for the
position is proclaimed and adjudged as winner with finality.

The Petition and the Prayer for the issuance of a Status Quo Order

In imputing grave abuse of discretion to the COMELEC en banc, Pecson
argues that: (1) the RTC Decision clearly showed Pecsons victory; (2) the reasons
for the reversal of the RTC Decision practically render impossible a grant of an
execution pending appeal; and (3) the RTC correctly found the presence of the
requisites for execution pending appeal.

Threatened to be unseated, Pecson asked, as interim relief, for the issuance
of a Status Quo Order. He claimed that: (1) the Department of Interior and Local
Government already recognized (based on the issuance of the assailed
Resolution) Cunanans assumption of office even if the assailed Resolution had
not attained finality; and (2) in order to prevent grave and irreparable injury to
Pecson and the perpetuation of a travesty of justice, a Status Quo Order must
immediately issue.

THE COURTS RULING

We find the petition meritorious.

The remedy of executing court decisions pending appeal in election contests
is provided under the Rules as follows:
SEC. 11. Execution pending appeal . On motion of the prevailing party with
notice to the adverse party, the court, while still in possession of the original records,
may, at its discretion, order the execution of the decision in an election contest before
the expiration of the period to appeal, subject to the following rules:

(a) There must be a motion by the prevailing party with three-day notice to
the adverse party. Execution pending appeal shall not issue without prior notice and
hearing. There must be good reasons for the execution pending appeal. The court, in a
special order, must state the good or special reasons justifying the execution pending
appeal. Such reasons must:

(1) constitute superior circumstances demanding urgency that will
outweigh the injury or damage should the losing party secure a reversal of the
judgment on appeal; and

(2) be manifest, in the decision sought to be executed, that the defeat of
the protestee or the victory of the protestant has been clearly established.

(b) If the court grants execution pending appeal, an aggrieved party shall
have twenty working days from notice of the special order within which to secure a
restraining order or status quo order from the Supreme Court of the Commission on
Elections. The corresponding writ of execution shall issue after twenty days, if no
restraining order or status quo order is issued. During such period, the writ of execution
pending appeal shall be stayed.
[3]



This remedy is not new. Under prevailing jurisprudence,
[4]
the remedy may
be resorted to pursuant to the suppletory application of the Rules of Court,
specifically its Section 2, Rule 39.
[5]
What the Rules (A.M. No. 07-4-15-C) has done
is to give the availability of the remedy the element of certainty. Significantly, the
Rules similarly apply thegood reason standard (in fact, the even greater superior
circumstances standard) for execution pending appeal under the Rules of Court,
making the remedy an exception rather than the rule.

At the heart of the present controversy is the question of whether there has
been compliance with the standards required for an execution pending appeal in
an election contest. As heretofore cited, the RTC found all these requisites
present. The Second Division of the COMELEC supported the RTCs ruling, but the
COMELEC en banc held a contrary view and nullified the execution pending
appeal. This en banc ruling is now before us.

Our review of a COMELEC ruling or decision is via a petition
for certiorari. This is a limited review on jurisdictional grounds, specifically of the
question on whether the COMELEC has jurisdiction, or whether the assailed order
or resolution is tainted with grave abuse of discretion amounting to lack or excess
of jurisdiction. Correctly understood, grave abuse of discretion is such capricious
and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or [an]
exercise of power in an arbitrary and despotic manner by reason of passion or
personal hostility, or an exercise of judgment so patent and gross as to amount to
an evasion of a positive duty or to a virtual refusal to perform the duty enjoined,
or to act in a manner not at all in contemplation of law.
[6]


Because this case is essentially about the implementation of an RTC
decision pending appeal, we must first dwell on the writ the RTC issued. The
COMELEC ruled in this regard that the writ of execution the RTC issued on March
11, 2008 was void; the RTC could no longer issue the writ because of the lapse of
the period for appeal, and because the RTC no longer held the records of the
election contest which had then been transmitted to the ECAD-COMELEC.

Cunanan argues in his Comment that this ruling has become final and
executory because Pecson did not question it in the present petition. In
Cunanans view, the finality of this aspect of the COMELEC ruling renders the
issue of the nullification of the Special Order moot and academic, as any ruling we
shall render would serve no practical purpose; it can no longer be implemented
since the means (obviously referring to the writ the RTC issued on March 11,
2008) of executing the RTC decision (i.e., seating Pecson as Mayor of Magalang)
has, to all intents and purposes, been nullified and rendered ineffective.

We see no merit in Cunanans argument. The writ of execution issued by
the RTC is a mere administrative enforcement medium of the Special Order the
main order supporting Pecsons motion for the issuance of a writ of
execution. The writ itself cannot and does not assume a life of its own
independent from the Special Order on which it is based. Certainly, its
nullification does not carry with it the nullification of the Special Order. This
consequence does not of course hold true in the reverse situation the
nullification of the Special Order effectively carries with it the nullification of its
implementing writ and removes the basis for the issuance of another
implementing writ. In the present case, the reality is that if and when we
ultimately affirm the validity of the Special Order, nothing will thereafter prevent
the RTC from issuing another writ.

Another legal reality is that the COMELEC is wrong in its ruling that the RTC
could no longer actually issue the writ on March 11, 2008 because it no longer
had jurisdiction to do so after the appeal period lapsed and after the records were
transmitted to the ECAD-COMELEC. That the RTC is still in possession of the
records and that the period to appeal (of both contending parties) must have not
lapsed are important for jurisdictional purposes if the issue is the authority of the
RTC to grant a Special Order allowing execution pending appeal; they are
requisite elements for the exercise by the RTC of its residual jurisdiction to validly
order an execution pending appeal, not for the issuance of the writ itself. This is
clearly evident from the cited provision of the Rules which does not require the
issuance of the implementing writ within the above limited jurisdictional
period. The RTC cannot legally issue the implementing writ within this limited
period for two reasons: (1) the cited twenty-day waiting period under Section
11(b); and (2) the mandatory immediate transmittal of the records to the ECAD
of the COMELEC under Section 10 of the Rules.
[7]


On the substantive issue of whether a writ of execution pending appeal
should issue, we do not agree with the COMELECs view that there are two
presumptive winners prior to its ruling on the protest case. We likewise cannot
support its balancing act view that essentially posits that given the pendency of
the appeal and the lack of finality of a decision in the election protest, the
unseating of the protestee, and the need for continuity of public service, the
balance should tilt in favor of continuity or non-disruption of public service;
hence, the execution pending appeal should be denied.

As Pecson correctly argued, this reasoning effectively prevents a winner (at
the level of the courts) of an election protest from ever availing of an execution
pending appeal; it gives too much emphasis to the COMELECs authority to decide
the election contest and the losing partys right to appeal. What is there to
execute pending appeal if, as the COMELEC suggested, a party should await a
COMELEC final ruling on the protest case? Effectively, the two presumptive
winners and the balancing act views negate the execution pending appeal that
we have categorically and unequivocally recognized in our rulings and in the Rules
we issued. To be sure, the COMELEC cannot, on its own, render ineffective a rule
of procedure we established by formulating its own ruling requiring a final
determination at its level before an RTC decision in a protest case can be
implemented.

We additionally note that disruption of public service necessarily results
from any order allowing execution pending appeal and is a concern that this Court
was aware of when it expressly provided the remedy under the Rules. Such
disruption is therefore an element that has been weighed and factored in and
cannot be per se a basis to deny execution pending appeal.

What comes out clearly from this examination of the COMELEC ruling is
that it looked at the wrong material considerations when it nullified the RTCs
Special Order. They are the wrong considerations because they are not the
standards outlined under Section 11, Rule 14 of the Rules against which the
validity of a Special Order must be tested. Significantly, the use of wrong
considerations in arriving at a decision constitutes grave abuse of discretion.
[8]


The proper consideration that the COMELEC made relates to the
correctness of the RTCs Decision in light of the Rules requirement that the
victory of the protestant and the defeat of the protestee be clearly established for
execution pending appeal to issue. According to the COMELEC, no less than the
Second Division cast a doubt on the correctness of the number of votes obtained
by the parties after the revision of ballots when the Second Division proposed a
mathematical formula to correct the RTC count. At the same time, the COMELEC
noted that the Second Division could not have corrected the RTC count, as the
petition before it was one for certiorari while the correction of errors in
computation properly pertained to the resolution of Cunanans pending
appeal. To the COMELEC, all these showed that the correctness of the RTC
Decision in favor of Pecson was far from clear and cannot support an execution
pending appeal.

We disagree once more with the COMELEC en banc in this conclusion, as it
failed to accurately and completely appreciate the Second Divisions findings. The
RTC Decision, on its face, shows that Pecson garnered more valid votes than
Cunanan after the revision of ballots. The Second Division properly recognized,
however, that the RTC computation suffered from a facial defect that did not
affect the final results; as Cunanan pointed out, the votes for Pecson and
Cunanan, if totally summed up, exceeded the total number of valid votes for
mayor.

Duly alerted, the Second Division looked into the purported error, analyzed
it, and found the error to be merely mathematical; the RTC formula would
necessarily exceed the total number of votes cast for mayor because it counted
some votes twice. In making this finding, the Second Division was guided by the
rule that one of the requisites for an execution pending appeal is a clear showing
in the decision of the protestants victory and the protestees defeat. Its
examination of the RTC Decision was only for this limited purpose and this was
what it did, no more no less. Specifically, it did not review the RTCs appreciation
of the ballots on revision; it did not review the intrinsic merits of the RTC Decision
issues that properly belong to the appeal that is currently pending. It merely
found that the defect Cunanan noted was actually inconsequential with respect to
the results, thus showing Pecsons clear victory under the RTC Decision. In other
words, the Second Divisions corrected view of the RTC count confirmed, rather
than contradicted or placed in doubt, the conclusion that Pecson won.

Other than the clarity of Pecsons victory under the RTC Decision, the
Special Order cited good and special reasons that justified an execution pending
appeal, specifically:(1) the need to give as much recognition to the worth of a trial
judges decision as that which is initially given by the law to the proclamation by
the board of canvassers; (2) public interest and/or respect for and giving meaning
to the will of the electorate; and (3) public policy something had to be done to
deal a death blow to the pernicious grab-the-proclamation-prolong-the-protest
technique often, if not invariably, resorted to by unscrupulous politicians who
would render nugatory the peoples verdict against them.

Unfortunately, the COMELEC en banc simply glossed over the RTCs cited
reasons and did not fully discuss why these reasons were not sufficient to justify
execution pending appeal. A combination, however, of the reasons the RTC cited,
to our mind, justifies execution of the RTC Decision pending appeal.

A striking feature of the present case is the time element involved. We
have time and again noted the well known delay in the adjudication of election
contests that, more often than not, gives the protestant an empty or hollow
victory in a long drawn-out legal battle.
[9]
Some petitions before us involving
election contests have been in fact dismissed for being moot, the term for the
contested position having long expired before the final ruling on the merits
came.
[10]
In the present case, the term for mayor consists of only three (3)
years. One year and six months has lapsed since the May 2007 election; thus, less
than two years are left of the elected mayors term. The election protest, while
already decided at the RTC level, is still at the execution-pending-appeal stage and
is still far from the finality of any decision on the merits, given the available
appellate remedies and the recourses available through special civil actions. To be
sure, there is nothing definite in the horizon on who will finally be declared the
lawfully elected mayor.

Also, we reiterate here our consistent ruling that decisions of the courts in
election protest cases, resulting as they do from a judicial evaluation of the ballots
and after full-blown adversarial proceedings, should at least be given similar
worth and recognition as decisions of the board of canvassers.
[11]
This is
especially true when attended by other equally weighty circumstances of the
case, such as the shortness of the term of the contested elective office, of the
case.

In light of all these considerations, we conclude that the COMELEC erred in
nullifying the RTCs Special Order in a manner sufficiently gross to affect its
exercise of jurisdiction. Specifically, it committed grave abuse of discretion when
it looked at wrong considerations and when it acted outside of the contemplation
of the law in nullifying the Special Order.

WHEREFORE, premises considered, we GRANT the petition and
accordingly ANNUL the assailed COMELEC Resolution.

SO ORDERED.

ARTURO D. BRION
Associate Justice




WE CONCUR:


REYNATO S. PUNO
Chief Justice




LEONARDO A. QUISUMBING
Associate Justice




ANTONIO T. CARPIO
Associate Justice




RENATO C. CORONA
Associate Justice
CONSUELO YNARES-SANTIAGO
Associate Justice




MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice




CONCHITA CARPIO MORALES
Associate Justice




ADOLFO S. AZCUNA
Associate Justice




MINITA V. CHICO-NAZARIO
Associate Justice




ANTONIO EDUARDO B.
NACHURA
Associate Justice








DANTE O. TINGA
Associate Justice




PRESBITERO J. VELASCO, JR.
Associate Justice




RUBEN T. REYES
Associate Justice

TERESITA J. LEONARDO-DE CASTRO
Associate Justice



CERTIFICATION


Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above Decision were reached in consultation before the
case was assigned to the writer of the opinion of the Court.



REYNATO S. PUNO
Chief Justice



[1]
Entitled Lyndon A. Cunanan v. Zenaida S. Buan x x x and Romulo F. Pecson.
[2]
A.M. No. 07-04-15-SC.
[3]
Rules of Procedure in Election Contests before the Courts Involving Elective Municipal
and Barangay Officials (A.M. No. 07-4-15-C); supra note 2.
[4]
See Gahol v. Riodoque, G.R. No. L-40415, June 27, 1975 64 SCRA 494, cited in Ramas et al. v.
COMELEC G.R. No. 130831 February 10, 1998, 286 SCRA 189.
[5]
Section 2 (a) of Rule 39 of the Rules of Court provides:
SEC. 2. Discretionary execution. -
Execution of a judgment of a final order pending appeal. On motion of the prevailing party with notice to
the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the
original record or record on appeal, as the case may be, at the time of the filing of such motion, said court may,
in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the
appellate court.
Discretionary execution may only issue upon good reasons to be stated in a special order after due
hearing [underscoring supplied].

[6]
See: Intestate Estate of Carmen de Luna v. Intermediate Appellate Court, G. R. No. 72424, February 13, 1989,
170 SCRA 246; Lalican v. Vergara, G.R. No. 108619, July 31, 1997, 276 SCRA 518.
[7]
SEC. 10. Immediate transmittal of records of the case. The clerk of court shall, within fifteen days from the
filing of the notice of appeal, transmit to the Electoral Contests Adjudication Department, Commission on
Elections, the complete records of the case, together with all the evidence, including the original and three
copies of the transcripts of stenographic notes of the proceedings.

[8]
See the case of Almeida v. Court of Appeals, G.R. No. 159124 January 17, 2005 448 SCRA 681, that although
not squarely in point provides the basis for a conclusion that a decision or determination based on wrong
considerations may be considered grave abuse of discretion. In this cited case, we ruled that in granting or
denying injunctive relief, a court abuses its discretion when it lacks jurisdiction, fails to consider and make a
record of the factors relevant to its determination, relies on clearly erroneous factual findings, considers
clearly irrelevant or improper factors, clearly gives too much weight to one factor, relies on erroneous
conclusions of law or equity, or misapplies its factual or legal conclusions.
[9]
See Lagumbay v. COMELEC, G.R. No. L-25444 January 31, 1966, 16 SCRA 175.
[10]
See Malaluan v. COMELEC, G.R. No. 120193. March 6, 1996, 254 SCRA 397, 412.
[11]
See Gahol, supra note 2, cited in Malaluan, supra note 10.

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 176211 May 8, 2007
MAYOR IBARRA R. MANZALA, Petitioner,
vs.
COMMISSION ON ELECTIONS AZCUNA, and JULIE R. MONTON, Respondents.
D E C I S I O N
AZCUNA, J .:
This is a petition for certiorari and prohibition with prayer for the issuance of a temporary restraining order (TRO), or status quo
ante order, and/or writ of preliminary injunction.
Petitioner Ibarra R. Manzala seeks to annul the resolution, dated August 24, 2006, of the Former Second Division
1
of the
Commission on Elections (COMELEC), declaring private respondent Julie R. Monton to be the duly elected Municipal Mayor of
Magdiwang, Romblon in the May 10, 2004 National and Local Elections, and the resolution of the COMELEC en banc,[2] dated
January 24, 2007, denying petitioners motion for reconsideration and affirming the Resolution of August 24, 2006 with
modification as to the number of votes obtained by both parties after re-appreciation.
The antecedents are as follows:
Petitioner Ibarra R. Manzala and private respondent Julie R. Monton were mayoralty candidates in the Municipality of
Magdiwang, Romblon, during the May 10, 2004 National and Local Elections. On May 13, 2004, the Municipal Board of
Canvassers proclaimed private respondent as the duly elected Municipal Mayor with 2,579 votes, or a margin of 13 votes, over
petitioners 2,566 votes.
On May 19, 2004, petitioner filed an election protest with the Regional Trial Court of Romblon, Branch 81 (Election Protest Case
No. 7), seeking recount in the 10 precincts of Magdiwang on the grounds of fraud, serious irregularities, and willful violation of the
Omnibus Election Code (Batas Pambansa Bilang 881) and other pertinent COMELEC rules allegedly committed by the voters
and the Chairman and members of the Board of Election Inspectors during the election.
Private respondent filed an Answer with Counter-Protest and Counterclaim, averring that the election was held peacefully with no
irregularity whatsoever. By way of counter-protest, private respondent contested the election in certain precincts, to wit: Precincts
41A, 40A, 39A, 38A, 37A, 36A and 35A of Barangay Tampayan; Precincts 1A, 2A, 3A, 4A, 5A, 6A, 7A, 8A, 9A and 9B of
Barangay Poblacion; Precinct 16A of Barangay Agutay; Precinct 24A of Barangay Dulangan; and Precinct 32A of Barangay Jao-
asan.
Thereafter, petitioner filed a Reply and Answer to the Counter-Protest and Counterclaim.
A revision of ballots was later conducted.1^vvphi 1. net In its decision of December 8, 2005, the trial court rendered judgment in favor of
petitioner, thus:
WHEREFORE, premises considered, protestant IBARRA R. MANZALA is hereby proclaimed as the duly-elected Municipal
Mayor of Magdiwang, Romblon during the election of May 10, 2004 who won over protestee JULIE R. MONTON with a majority
of 137 valid votes and is entitled to occupy said position. The proclamation by the MUNICIPAL BOARD OF CANVASSERS of
Magdiwang, Romblon that JULIE R. MONTON was the duly-elected MAYOR is hereby ANNULLED.
SO ORDERED.
3

Petitioner moved for the execution of the decision pending appeal which the trial court granted on December 16, 2005.
On appeal, private respondent raised the following assignment of errors: that the trial court seriously erred in invalidating 144
votes of private respondent ostensibly on the ground of pattern voting; that sets of ballots were marked, as well as written by two
persons; that the trial court erred in not considering and appreciating the objections raised by private respondent involving the
counter-protested precincts, and in arriving at its decision, it considered only the objections and/or exhibits of the petitioner; and
that the trial court seriously erred when it declared petitioner as the duly elected Municipal Mayor of Magdiwang, Romblon
despite the patent defects in the appealed decision.
On August 24, 2006, the Former Second Division of the COMELEC issued a Resolution which reversed and set aside the
decision of the trial court. It found that private respondent obtained 2,560 votes, or a margin of 17 votes, over petitioners 2,543
votes. The dispositive portion of the Resolution reads:
WHEREFORE, the instant appeal is hereby GRANTED. The December 8, 2005 Decision of the Regional Trial Court, Fourth
Judicial Region, Branch 81, Romblon, Romblon in Election Protest Case No. 7 is hereby REVERSED and SET ASIDE.
ACCORDINGLY, the Commission (Former Second Division) hereby DECLARES protestee-appellant JULIE E. MONTON, the
duly-elected Municipal Mayor of Magdiwang, Romblon during the May 10, 2004 National and Local Elections.
SO ORDERED.
4

Petitioners motion for reconsideration was denied by the COMELEC en banc in its Resolution of January 24, 2007. It affirmed
the earlier Resolution dated August 24, 2006 which proclaimed private respondent as the duly elected Municipal Mayor with
modification as to the number of votes obtained by both parties after re-appreciation,i.e., private respondent garnered 2,535
votes, or a margin of 60 votes, over petitioners 2,475 votes.
Meanwhile, acting on private respondents Motion for Immediate Execution and Issuance of an Entry of Judgment, the
COMELEC en banc issued a writ of execution on February 28, 2007 declaring its Resolution of January 24, 2007 as final and
executory as of February 26, 2007.
Consequently, in the Order dated March 1, 2007, the COMELEC en banc directed the implementation of the writ of execution
ordering petitioner to cease and desist from discharging the powers and functions of the Office of the Municipal Mayor of
Magdiwang, Romblon; to relinquish and vacate the post in favor of private respondent; and to cause the smooth turn-over of the
office to the latter.
On February 1, 2007, petitioner filed this petition for certiorari and prohibition contending that the COMELEC committed grave
abuse of discretion amounting to lack or excess of jurisdiction in declaring private respondent as the duly elected Municipal
Mayor of Magdiwang, Romblon with a prayer that the COMELEC be directed to cease and desist from implementing the
challenged Resolutions of August 24, 2006 and January 24, 2007.
Private respondent maintains that "to allow the arguments of the petitioner to prevail would make him assume office by the grace
of impropriety and misappreciation of ballots by the lower court, whose decision has already been reversed and set aside by the
Former Second Division of the COMELEC and affirmed by the Commission en banc."
The petition should be dismissed.1vvphi1.nt
Petitioner argues that the motion for reconsideration filed with the Former Second Division of the COMELEC "has thrown the
whole case wide open for review as in a trial de novo in a criminal case," yet the COMELEC en bancfailed to conduct a thorough
review of the contested ballots.
This argument has no basis. Section 2 (2) of Article IX-C of the Constitution provides the COMELEC with quasi-judicial power 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. Decisions, final orders,
or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final, executory, and
not appealable. Section 3 thereof states the administrative power of the COMELEC, either en banc or in two divisions, to
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.
Clearly, from the decision of the trial court, the COMELEC exercises appellate jurisdiction to review, revise, modify, or even
reverse and set aside the decision of the former and substitute it with its own decision. In the exercise of its adjudicatory or quasi-
judicial powers, the Constitution also mandates the COMELEC to hear and decide cases first by division and upon motion for
reconsideration, by the COMELEC en banc. Election cases cannot be treated in a similar manner as criminal cases where, upon
appeal from a conviction by the trial court, the whole case is thrown open for review and the appellate court can resolve issues
which are not even set forth in the pleadings. In the present case, the COMELEC en banc had thoroughly reviewed the decision
of its Former Second Division and affirmed the findings thereof with modification as to the number of votes obtained by both
parties after re-appreciation, that is, private respondent obtained 2,535 votes, or a margin of 60 votes, over petitioners 2,475
votes.
Petitioner further contends that the trial courts "judicial appreciation of the contested ballots [should be] honored, respected, and
given the importance it deserves by [this] Court."
This contention has no merit. Section 2, Rule 64 of the Rules of Court states that from a judgment or final order or resolution of
the COMELEC, the aggrieved party, herein petitioner, may file a petition for certiorari under Rule 65. Thus, in a special civil
action of certiorari under Section 1 of Rule 65, the only question that may be raised and/or resolved is whether or not the
COMELEC had acted with grave abuse of discretion amounting to lack or excess of jurisdiction.
5
Such fact does not exist in the
present case.
Moreover, the appreciation of the contested ballots and election documents involves a question of fact best left to the
determination of the COMELEC, a specialized agency tasked with the supervision of elections all over the country. To reiterate,
the COMELEC is the constitutional commission vested with the exclusive original jurisdiction over election contests involving
regional, provincial and city officials, as well as appellate jurisdiction over election protests involving elective municipal and
barangay officials. Consequently, in the absence of grave abuse of discretion or any jurisdictional infirmity or error of law, the
factual findings, conclusions, rulings and decisions rendered by the said Commission on matters falling within its competence
shall not be interfered with by this Court.
6

Finally, to justify the issuance of an injunctive relief, petitioner claims that there had been a "misinterpretation and misapplication
of the law" by the COMELEC and that "should the facts and circumstances presented in this petition be sufficiently persuasive,
a writ of preliminary injunction or a temporary restraining order be issued to prevent the public respondent COMELEC from
disrupting the stability of governance in the Municipality of Magdiwang, Province of Romblon, in the meantime that the petition is
being reviewed."
As a consequence of the dismissal of the instant petition, petitioners prayer for any form of injunctive relief, perforce, has no
factual and legal basis.
WHEREFORE, the petition is DISMISSED for lack of showing that the Commission on Elections committed any grave abuse of
discretion in issuing the assailed Resolution, dated August 24, 2006, by the Former Second Division and the Resolution, dated
January 24, 2007, by the Commission en banc, which declared private respondent Julie R. Monton to be the duly elected
Municipal Mayor of Magdiwang, Romblon in the May 10, 2004 National and Local Elections.
Accordingly, the Commission on Elections en banc is DIRECTED to forthwith cause the full implementation of the Writ of
Execution it issued on February 28, 2007 and the Order of March 1, 2007.
In view of the proximity of the next National and Local Elections on May 14, 2007, this Decision is IMMEDIATELY EXECUTORY.
No costs.
SO ORDERED.
ADOLFO S. AZCUNA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice
CONSUELO YNARES-SANTIAGO
Asscociate Justice
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

ANTONIO T. CARPIO
Asscociate Justice
(On leave)
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
(On Leave)
RENATO C. CORONA
Asscociate Justice

CONCHITA CARPIO MORALES
Associate Justice
DANTE O. TINGA
Asscociate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
CANCIO C. GARCIA
Asscociate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Asscociate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
1
Per Commissioner Romeo A. Brawner and concurred in by Commissioner Florentino A. Tuason, Jr.
2
Per Commissioner Rene V. Sarmiento and concurred in by Chairman Benjamin S. Abalos and Commissioners
Resurreccion Z. Borra, Florentino A. Tuason, Jr., Romeo A. Brawner, and Nicodemo T. Ferrer.
3
See, COMELEC Resolution dated August 24, 2006, Rollo, p. 29.
4
Id. at 83.
5
Carloto v. COMELEC, et al., G.R. No. 174155, January 24, 2007.
6
Punzalan v. COMELEC, G.R. No. 126669, April 27, 1998, 289 SCRA 702 citing Mastura v. COMELEC, G.R. No.
124521, January 29, 1998, 285 SCRA 493; Bulaong v. COMELEC, G.R. No. 116206, February 7, 1995, 241
SCRA 180; Navarro v. COMELEC, G.R. No. 106019, December 17, 1993, 228 SCRA 596; Lozano v. Yorac, G.R.
No. 94521, October 28, 1991, 203 SCRA 256; Pimping v. COMELEC, G.R. Nos. L-69765-67, November 19,
1985, 140 SCRA 192.

The Lawphil Project - Arellano Law Foundation


EN BANC
[G.R. No. 151914. July 31, 2002]
TEODULO M. COQUILLA, petitioner, vs. THE HON. COMMISSION ON
ELECTIONS and MR. NEIL M. ALVAREZ, respondents.
D E C I S I O N
MENDOZA, J .:
This is a petition for certiorari to set aside the resolution,
[1]
dated 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 COMELECen banc denying petitioners 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. 8171
[5]
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 petitioners
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 respondents 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
respondents petition and ordered the cancellation of petitioners certificate of candidacy
on the basis of the following findings:
Respondents 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 petitioners 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 COMELECs
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 same should be considered as having been filed late and should be dismissed.
Private respondents 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 COMELECs 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 petitioners 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 petitioners 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
movants 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,
[16]
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 petitioners 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 respondents petition
for cancellation of petitioners 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. COMELEC
[19]
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,
[21]
but 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 childs parents reside and continues until the same is
abandoned by acquisition of new domicile (domicile of choice).
[24]

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 13
[28]
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 petitioners 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 Elections
[33]
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 Courts 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 candidates lack of residency.
Petitioners 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 petitioners claim, are complete and intact in the records.
III.
The statement in petitioners 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
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.
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.
Indeed, it has been held that a candidates 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 so
[37]
or that the candidate was a natural-born Filipino when in fact he had
become an Australian citizen
[38]
constitutes a ground for the cancellation of a certificate
of candidacy. On the other hand, we held in Salcedo II v. COMELEC
[39]
that a candidate
who used her husbands 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 candidates qualification for an office for
which he filed the certificate of candidacy. This is a misrepresentation of a material fact
justifying the cancellation of petitioners certificate of candidacy. The cancellation of
petitioners 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.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Panganiban, Quisumbing,
Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, and Corona,
JJ., concur.



[1]
Per Presiding Commissioner Ralph C. Lantion and concurred in by Commissioners Mehol K. Sadain
and Florentino A. Tuazon, Jr.
[2]
The records do not disclose when petitioner became a U.S. citizen.
[3]
Records, pp. 167-169.
[4]
Petitioners U.S. passport for 1998-2008 shows the following dates of arrival in the Philippines and
dates of departure for the United States: arrival - October 15, 1998, departure - November 3, 1998; arrival
- December 20, 1998 (with no record of corresponding departure); arrival - October 16, 1999, departure -
November 1, 1999; arrival - June 23, 2000, departure - July 6, 2000; arrival - August 5, 2000 (Records,
pp. 227-228).
[5]
This law, entitled AN ACT PROVIDING FOR THE REPATRIATION OF FILIPINO WOMEN WHO HAVE
LOST THEIR PHILIPPINE CITIZENSHIP BY MARRIAGE TO ALIENS AND NATURAL-BORN
FILIPINOS, applies to former natural-born Filipinos who have lost their Philippine citizenship on account
of economic or political necessity. It would appear that petitioner was repatriated under this law on the
ground that he lost his Philippine citizenship on account of economic necessity.
[6]
Petition, Annex O, p. 56.
[7]
Id., Annex C, p. 34.
[8]
Id., Annex H, p. 46.
[9]
Resolution, p. 7-8; Rollo, pp. 30-31 (emphasis added).
[10]
Bulaong v. COMELEC, 220 SCRA 745 (1993).
[11]
Order, pp. 1-2; Rollo, pp. 32-33.
[12]
Siy v. Court of Appeals, 138 SCRA 536 (1985); Continental Cement Corporation v. Court of Appeals,
184 SCRA 728 (1990).
[13]
Guerra Enterprises Company, Inc. v. Court of First Instance of Lanao del Sur, 32 SCRA 314, 317
(1970).
[14]
Manila Trading v. Enriquez, 1 SCRA 1056 (1961); City of Cebu v. Mendoza, 62 SCRA 440 (1975);
Debuque v. Climaco, 99 SCRA 353 (1980); Garcia v. Echiverri, 132 SCRA 631 (1984); Commissioner of
Internal Revenue v. Island Garment Manufacturing Corporation, 153 SCRA 665 (1987); Vda. de
Espina v. Abaya, 196 SCRA 312 (1991).
[15]
A similar rule is found in Rule 19, 3 of the COMELEC Rules of Procedure.
[16]
Villarica v. Court of Appeals, 57 SCRA 24 (1974).
[17]
Jessena v. Hervas, 83 SCRA 799 (1978); Marikina Valley Development Corporation v. Flojo, 251
SCRA 87 (1995); Nieto v. De los Angeles, 109 SCRA 229 (1981).
[18]
Sembrano v. Ramirez, 166 SCRA 30 (1988); Pojas v. Gozo-Dadole, 192 SCRA 575 (1990); Bank of
the Philippine Islands v. Far East Molasses Corporation, 198 SCRA 689 (1991).
[19]
201 SCRA 253 (1991).
[20]
312 SCRA 447 (1999).
[21]
Uytengsu v. Republic, 95 Phil. 890, 894 (1954).
[22]
Nuval v. Guray, 52 Phil. 645 (1928); Gallego v. Verra, 73 Phil. 453 (1941); Romualdez v. RTC, Br. 7,
Tacloban City, 226 SCRA 408 (1993).
[23]
Aquino v. COMELEC, 248 SCRA 400, 420 (1995).
[24]
25 Am. Jur. 2d, 11.
[25]
191 SCRA 229 (1990).
[26]
Petition, p. 6; Rollo, p. 8.
[27]
Id., pp. 9-11; id., pp. 11-13.
[28]
This provision states:
Under the conditions set forth in this Act, there may be admitted in the Philippines immigrants, termed
quota immigrants not in excess of fifty (50) of any one nationality or without nationality for any one
calendar year, except that the following immigrants, termed nonquota immigrants, may be admitted
without regard to such numerical limitations.
The corresponding Philippine Consular representative abroad shall investigate and certify the eligibility of
a quota immigrant previous to his admission into the Philippines. Qualified and desirable aliens who are in
the Philippines under temporary stay may be admitted within the quota, subject to the provisions of the
last paragraph of section 9 of this Act.
(a) The wife or the husband or the unmarried child under twenty-one years of age of a Philippine citizen, if
accompanying or following to join such citizen;
(b) A child of alien parents born during the temporary visit abroad of the mother, the mother having been
previously lawfully admitted into the Philippine for permanent residence, if the child is accompanying or
coming to join a parent and applies for admission within five years from the date of its birth;
(c) A child born subsequent to the issuance of the immigration visa of the accompanying parent, the visa
not having expired;
(d) A woman who was citizen of the Philippines and who lost her citizenship because of her marriage to
an alien or by reason of the loss of Philippine citizenship by her husband, and her unmarried child under
twenty-one years of age, if accompanying or following to join her;
(e) A person previously lawfully admitted into the Philippines for permanent residence, who is returning
from a temporary visit abroad to an unrelinquished residence in the Philippines, (As amended by Sec. 5,
Rep. Act No. 503.)
(f) The wife or the husband or the unmarried child under twenty-one years of age, of an alien lawfully
admitted into the Philippines for permanent residence prior to the date on which this Act becomes
effective and who is resident therein, if such wife, husband, or child applies for admission within a period
of two years following the date on which this Act becomes effective;
(g) A natural born citizen of the Philippines, who has been naturalized in a foreign country, and is
returning to the Philippines for permanent residence, including the spouse and minor children, shall be
considered a non-quota immigrant for purposes of entering the Philippines (As amended by Rep. Act No.
4376, approved June 19, 1965).
[29]
See R. Ledesma, An Outline of Philippine Immigration and Citizenship Laws 135 (1999).
[30]
C.A. No. 63, 2.
[31]
Records, pp. 227-228.
[32]
The COMELEC considered November 10, 2000 as the date of petitioners repatriation. Section 2 of
R.A. No. 8171 provides, however, Repatriation shall be effected by taking the necessary oath of
allegiance to the Republic of the Philippines and registration in the proper civil registry and in the Bureau
of Immigration. The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of
registration and issue the certificate of identification as Filipino citizen to the repatriated citizen.
[33]
257 SCRA 727 (1996).
[34]
G.R. No. 142840, May 7, 2001.
[35]
54 Phil. 645 (1928).
[36]
248 SCRA 400, 429 (1995).
[37]
Abella v. Larazabal, 180 SCRA 509 (1989); Abella v. COMELEC, 201 SCRA 253 (1991).
[38]
Labo, Jr. v. COMELEC, 211 SCRA 297 (1992).
[39]
312 SCRA 447 (1999).

EN BANC
[G.R. No. 135468. May 31, 2000]
DIOSCORO O. ANGELIA, petitioner, vs. COMMISSION ON ELECTIONS
and FLORENTINO R. TAN, respondents.
D E C I S I O N
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. Sppedjo
The facts of the instant case are as follows:
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
3. Edmundo P. Sano 8,720
4. Clementino Rudas 8,277
5. Francis Raymundo
Realino
8,173
6. Carmelita P. Piscos 7,898
7. Marcelo G. Ganoza 7,835
8. Dioscoro O. Angelia 7,765
Private respondent, who received a total of 7,761 votes four votes less than those
obtained by petitioner ranked ninth among the candidates. Nexold
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. Misoedp
On June 12, 1998 petitioner took his oath and assumed office as member of the
Sangguniang Bayan. Mi sedp
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 affidavit
[4]
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
affidavit
[5]
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 affidavit
[6]
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:
"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."
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. Ed p
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 PETITIONERS 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. Edp sc
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:
. . . .
d) motion for reconsideration of an en banc ruling, resolution, order or
decision except in election offense cases;
. . . .
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. Sce dp
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 pleading
[8]

sufficiently indicated his intention to abandon his motion for reconsideration. Calrsp ped
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 card
[9]
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 quowarranto had previously been served on petitioner, there
could be no reason for private respondents 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. Sccal r
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. C alrsc
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 or into the statement of votes by precinct, or (4) so-
called election returns from non-existent precincts were included in the
canvass, the board may motu proprio, or upon verified petition by any
candidate, political party, organization or coalition of political parties, after
due notice and hearing, correct the errors committed.
(b) The order for correction must be made in writing and must be
promulgated.
(c) Any candidate, political party, organization or coalition of political
parties aggrieved by said order may appeal therefrom to the Commission
within twenty-four (24) hours from the promulgation.
(d) Once an appeal is made, the board of canvassers shall not proclaim
the winning candidates, unless their votes are not affected by the appeal.
(e) The appeal must implead as respondents the Board of Canvassers
concerned and all parties who may be adversely affected thereby.
(f) Upon receipt of the appeal, the Clerk of Court concerned shall forthwith
issue summons, together with a copy of the appeal, to the respondents.
(g) The Clerk of Court concerned shall immediately set the appeal for
hearing.
(h) The appeal shall be heard and decided by the Commission en banc.
This case likewise involves manifest errors. Election Return No. 3700088 from Precinct
Nos. 84-A/84-A-1 is claimed to show 92 votes in favor of private respondent but indicate
a total in words and figures of only 82 votes. On the other hand, Election Return No.
3700023 allegedly shows 13 votes for petitioner but indicates in words and figures 18
votes. These discrepancies can be easily resolved without opening the ballot boxes and
recounting the ballots. COMELEC Resolution No. 2962 provides that "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/certificates, the votes in taras/tally shall
prevail." Sppedsc
In the present case, although the COMELEC annulled the proclamation of petitioner, it
merely directed the Municipal Board of Canvassers 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." 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 candidate or candidates as member or
members of the Sangguniang Bayan. In accordance with our ruling inCastromayor, the
expedient action to take is to direct 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, if any, in the election returns and, on the
basis thereof, proclaim the winning candidate or candidates as member or members of
the Sangguniang Bayan. S djad
WHEREFORE, the en banc resolution, dated August 18, 1998 of the Commission on
Elections is AFFIRMED with the MODIFICATION that the 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 of the COMELEC Rules of Procedure, to
effect the necessary corrections, if any, in Election Return No. 3700088 from Precinct
Nos. 84-A/84-A-1 and 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.
SO ORDERED.
Bellosillo, Melo, Puno, Vitug, Kapunan, Purisima, Buena, and Gonzaga-Reyes,
JJ., concur.
Davide, Jr., C.J., on official business.
Panganiban, Quisumbing, Ynares-Santiago, and De Leon, Jr., JJ., on leave.
Pardo, J., no part.



[1]
Petition, Annex B; Rollo, p. 25.
[2]
Comment, Annex B; Id., p. 77.
[3]
Id., Annex C; Id., p. 78.
[4]
Id., Annex E; Id., p. 80.
[5]
Id., Annex G; Id., p. 82.
[6]
Id., Annex D; Id., p. 79.
[7]
Faelnar v. COMELEC, G.R. Nos. 140850-51, May 4, 2000.
[8]
Reply to Comment of the COMELEC; Rollo, pp. 142-144.
[9]
Comment, Annex 2; Id., p. 83.
[10]
Reply to Comment of Private Respondent; Id., pp. 107-108.
[11]
Samad v. COMELEC, 224 SCRA 631 (1993).
[12]
250 SCRA 298 (1995).
THIRD DIVISION
[G.R. No. 114795. July 17, 1996]
LUCITA Q. GARCES, petitioner, vs. THE HONORABLE COURT OF
APPEALS, SALVADOR EMPEYNADO and CLAUDIO
CONCEPCION, respondents.
R E S O L U T I O N
FRANCISCO, J .:
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 banccancelled 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 RTCs dismissal of the case. Hence,
this petition.
The issues raised are purely legal. First, is petitioners 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 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. (Italics 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 Concepcions 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]
Concepcions transfer thus becomes legally infirm and without
effect for he was not validly terminated. His appointment to the Liloy post, in fact, was
incomplete because he did not accept it. Acceptance, it must be emphasized, is
indispensable to complete an appointment.
[22]
Corollarily, Concepcions 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.
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 respondent court, mandamus, which petitioner
filed below, will not lie as this remedy applies only where petitioners right is founded
clearly in law and 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 corresponding functions
therefore, the proper remedy should have been quo warranto and not
mandamus.
[26]
Quo warranto tests the title to ones 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]

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 Tulawies
appointment was confirmed by the higher authorities making his claim to the disputed
position clear and certain. Tulawies 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 petitioners appointment to which she
could base her claim was revoked making her claim uncertain.
Coming now to the second issue.
The jurisdiction of the RTC was challenged by respondent
Empeynado
[29]
contending that this is a case or matter cognizable by the COMELEC
under Sec. 7 Art. IX-A of the 1987 Constitution. The COMELEC resolution cancelling
the appointment of Garces as Election Registrar of Gutalac, he 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.
The contention is without merit. Sec. 7, Art. IX-A of the Constitution provides:
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.
This provision is inapplicable as there was no case or matter filed before the
COMELEC. On the contrary, it was the COMELECs resolution that triggered this
Controversy. The case or matter referred to by the constitution must be something
within the jurisdiction of the COMELEC, i.e., 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
COMELECs 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 COMELECs 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 of any court, tribunal, person or body exercising
judicial or quasi-judicial functions.
[33]

WHEREFORE, premises considered, the petition for review is hereby DENIED
without prejudice to the filing of the proper action with the appropriate body.
SO ORDERED.
Narvasa, C.J., (Chairman), Davide, Jr., Melo, and Panganiban, JJ., concur.



[1]
Promulgated on December 29, 1993. The subsequent Motion for Reconsideration was denied on
March 10, 1994.
[2]
Thirteenth Division: Ynares-Santiago, J., ponente, Herrera, Ibay-Somera, JJ., concurring.
[3]
Regional Trial Court, Sindangan, Zamboanga del Norte, Br. 11.
[4]
Rollo, p. 17.
[5]
Garces appointment was approved on October 20, 1986, while that of Concepcions was on January
23, 1987.
[6]
Rollo, p. 18.
[7]
Issued on February 4, 1987, Rollo, p. 18.
[8]
Rollo, p. 18. The memorandum was dated August 18, 1987 (Petition, p. 5) but the CA said it was
August 17, 1987 (CA Decision, p. 4).
[9]
Rollo, p. 18.
[10]
Rollo, p. 19.
[11]
Empeynado retired from service and was succeeded by Atty. Muhamad Hashan.
[12]
Comment, p. 2; Rollo, p. 25.
[13]
CA Decision, pp. 2, 6; Rollo, pp. 16, 20.
[14]
Rollo, p. 19.
[15]
Proclamation No. 3, March 25, 1986, Pres. Aquino.
[16]
Radia v. Review Committee Under. E O. 17, 157 SCRA 749.
[17]
Ibid., pp. 120-121.
[18]
Dario v. Mison, 176 SCRA 85, 120.
[19]
Palma-Fernandez v. dela Paz, 160 SCRA 751.
[20]
Ibid.
[21]
Art. IX-B, Sec. 2(3), 1987 Constitution.
[22]
Javier v. Reyes, 170 SCRA 560.
[23]
Costin v. Quimbo, 205 Phil. 117.
[24]
University of San Agustin v. C.A., 230 SCRA 761; Tamano v. Manglapus, 214 SCRA 587;
Sanson v. Bamos, 63 Phil. 198; Marcelo v. Tantuico, Jr., 142 SCRA 439.
[25]
National Investment Department Authority v. Aquino, 163 SCRA 153.
[26]
Pilar v. Secretary of Public Works, 19 SCRA 360.
[27]
Lota v. Court of Appeals, 112 Phil. 619; 2 SCRA 715.
[28]
Tulawie v. The Provincial Agriculturist of Sulu, 120 Phil. 595.
[29]
Garces claims this issue cannot be raised for the first time on appeal. The records, however, reveal
that this was tackled in the court a quo (cited in the CA Decision, p. 3; Rollo, p. 17.)
[30]
Filipinas Engineering & Machine Shop v. Ferrer, 135 SCRA 25.
[31]
Sec. 2(2) Art. IX-C.
[32]
Gloria v. de Guzman, 249 SCRA 126.
[33]
Sec. 19(6) of BP 129 as amended by Sec. 1 of R.A. 7691, otherwise known as the Expanded
Jurisdiction Law.









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Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-31455 February 28, 1985
FILIPINAS ENGINEERING AND MACHINE SHOP, petitioner,
vs.
HON. JAIME N. FERRER, LINO PATAJO and CESAR MIRAFLOR as Commissioners of the Commission on Elections;
COMELEC BIDDING COMMITTEE CHAIRMAN EMILIO AGUILA and MEMBERS PACIENCIO BALLON, ALEJANDRO
MACARANAS, TOMAS MALLONGA and ERNESTO LOMBOS; HON. JUDGE JOSE LEUTERIO of the Court of First
Instance of Manila, Branch 11 and ACME STEEL MANUFACTURING COMPANY, respondents.

CUEVAS, J .:
Appeal by certiorari from the Order dated November 15, 1969 issued by the respondent Judge of the then Court of First Instance
of Manila, Branch II, DISMISSING Civil Case No. 77972 entitled, "Filipinas Engineering and Machine Shop vs. COMELEC, et
al.", and his Honor's subsequent Order of December 20, 1969 DENYING petitioner's motion for reconsideration.
In preparation for the national elections of November 11, 1969, then respondent Commissioners of the Commission on Elections
(COMELEC) issued an INVITATION TO BID CALL No. 127 on September 16, 1969 calling for the submission of sealed
proposals for the manufacture and delivery of 1 1,000 units of voting booths with the following specifications and descriptions, to
wit:
11,000 Units VOTING BOOTHS, easy to install and store. Must be of light but strong and durable
materials, rust proof or rust resistant and construction must be sturdy. Each Unit shall consists of two (2)
voting booths with overall measurements of 150 cms. long x 75 cms. wide x 185 cms. high. (Each voting
booth or compartment measuring 75 cms. long x 75 cms. wide x 185 cms. high). The top and all sides
except the front side, shall be fully covered. The front side of the unit shall be without cover to serve as its
opening (entrance). Each voting compartment shall be provided with a writing table.
Each unit shall be contained in individual wooden box.
Bidders are required to submit finished sample.
1

Among the seventeen bidders who submitted proposals in response to the said INVITATION were the herein petitioner, Filipinos
Engineering and Machine Shop, (Filipinas for short) and the private respondent, Acme Steel Manufacturing Company, (Acme for
short).

Filipinas' sealed proposal was as follows:
Prices Per Unit Brief Description
P128.00 Sample 2 same in construction as sample 1, except
that its siding and top cover is made of plywood (or
lawanit if available). 33.5 kilos in weight. Packed in
wooden box.
2

P123.00 Same as sample 2, except that it is packed in
corrogated carton box.
Acme's bid was
Prices Per Unit Brief Description
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 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).
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.
Makasiar, Concepcion Jr., Abad Santos and Escolin JJ., concur.
Aquino, J., in the result.

Footnotes
1 Page 34, Rollo.
2 Pages 40-41, Rollo.
3 Page 39, Id.
4 Id., pages 44-45.
5 Id., page 48.
6 Id., page 50.
7 Records, pages 38-39.
8 Rollo, page 85.
9 Albano vs. Arranz, 114 Phil. 318; Zaldivar vs. Estenzo 23 SCRA 533; Macud vs.
COMELEC, 23 SCRA 224.
12 Rollo, pages 36-37.
13 Id., page 38.
14 Article 1326. New Civil Code.

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 185401 July 21, 2009
HENRY "JUN" DUEAS, JR., Petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL and ANGELITO "JETT" P. REYES, Respondents.
D E C I S I O N
CORONA, J :
Sed quis custodiet ipsos custodies? (But who is to guard the guardians themselves?)
1

Under our constitutional scheme, the Supreme Court is the ultimate guardian of the Constitution, particularly of the allocation of
powers, the guarantee of individual liberties and the assurance of the peoples sovereignty.
2
The Court has the distinguished but
delicate duty of determining and defining constitutional meaning, divining constitutional intent and deciding constitutional
disputes. Nonetheless, its judicial supremacy is never judicial superiority (for it is co-equal with the other branches) or judicial
tyranny (for it is supposed to be the least dangerous branch).
3
Instead, judicial supremacy is the conscious and cautious
awareness and acceptance of its proper place in the overall scheme of government with the objective of asserting and promoting
the supremacy of the Constitution. Thus, whenever the Court exercises its function of checking the excesses of any branch of
government, it is also duty-bound to check itself. Otherwise, who will guard the guardian?
The Court should exercise judicial restraint as it resolves the two interesting issues that confront it in this petition: first, whether
the House of Representatives Electoral Tribunal (HRET) committed grave abuse of discretion when it denied petitioner Henry
"Jun" Dueas, Jr.s motion to withdraw or abandon his remaining 75% counter-protested precincts and second, whether the
HRET committed grave abuse of discretion when it ordered that its own funds be used for the revision of the ballots from said
75% counter-protested precincts.ten.1i hpwa1
Factual Backdrop
Petitioner Henry "Jun" Dueas, Jr. and private respondent Angelito "Jett" P. Reyes were rival candidates for the position of
congressman in the 2nd legislative district of Taguig City in the May 14, 2007 synchronized national and local elections. After the
canvass of the votes, petitioner was proclaimed the winner, having garnered 28,564 votes
4
as opposed to private respondents
27,107 votes.
5

Not conceding defeat, private respondent filed an election protest ad cautelam,
6
docketed as HRET Case No. 07-27, in the HRET
on June 4, 2007. He prayed for a revision/recount in 170
7
of the 732 precincts in the 2nd legislative district of Taguig City so that
the true and real mandate of the electorate may be ascertained.
8
In support of his protest, he alleged that he was cheated in the
protested precincts through insidious and well-orchestrated electoral frauds and anomalies which resulted in the systematic
reduction of his votes and the corresponding increase in petitioners votes.
9

Petitioner filed his answer
10
on June 25, 2007. Not to be outdone, he also counter-protested 560 precincts claiming that massive
fraud through deliberate misreading, miscounting and misappreciation of ballots were also committed against him in said
precincts resulting in the reduction of his votes in order to favor private respondent.
11

After the issues were joined, the HRET ordered that all ballot boxes and other election materials involved in the protest and
counter-protest be collected and retrieved, and brought to its offices for custody.
In the preliminary conference held on July 26, 2007, petitioner and private respondent agreed that, since the total number of the
protested precincts was less than 50% of the total number of the precincts in the 2nd legislative district of Taguig City, all of the
protested precincts would be revised without need of designation of pilot precints by private respondent pursuant to Rule 88 of
the HRET Rules.
12

The HRET thereafter directed the revision of ballots starting September 18, 2007.
13
Reception of evidence of the contending
parties followed after the revision of ballots in 100% of the protested precincts and 25% pilot of the counter-protested precincts.
The case was then submitted for resolution upon submission by the parties of their memoranda.
In an order dated September 25, 2008, the HRET directed the continuation of the revision and appreciation of the remaining 75%
of the counter-protested precincts pursuant to Rule 88 of the HRET Rules, "[i]t appearing that the [HRET] cannot determine the
true will of the electorate from the initial revision and appreciation of the 100% protested precincts and 25% counter-protested
precincts and in view of the discovery of fake/spurious ballots in some of the protested and counter-protested precincts."
14

Petitioner moved for reconsideration
15
but the HRET denied his motion in an order dated October 21, 2008.
16
On the same day,
the HRET issued another order directing petitioner to augment his cash deposit in the amount ofP320,000 to cover the expenses
of the revision of ballots in the remaining 75% counter-protested precincts within a non-extendible period of ten days from
notice.
17

Instead of complying with the order, petitioner filed an urgent motion to withdraw/abandon the remaining 75% counter-protested
precincts on October 27, 2008.
18
This was denied by the HRET in Resolution No. 08-353 dated November 27, 2008, reiterating
its order directing the continuation of the revision of ballots in the remaining 75% counter-protested precincts and recalling its
order requiring petitioner to augment his cash deposit. The Tribunal instead ordered the use of its own funds for the revision of
the remaining 75% counter-protested precincts.
19

In issuing Resolution No. 08-353 dated November 27, 2008, the HRET invoked Rule 88 of the HRET Rules and settled
jurisprudence, ruling that it had the discretion either to dismiss the protest or counter-protest, or to continue with the revision if
necessitated by reasonable and sufficient grounds affecting the validity of the election. This was with the end in view of
ascertaining the true choice of the electorate. It was the HRETs position that the mere filing of a motion to withdraw/abandon the
unrevised precincts did not automatically divest the HRET of its jurisdiction over the same. Moreover, it ruled that its task of
determining the true will of the electorate was not confined to the examination of contested ballots. Under its plenary power, it
could motu propio review the validity of every ballot involved in a protest or counter-protest and the same could not be frustrated
by the mere expedient of filing a motion to withdraw/abandon the remaining counter-protested precincts. Convinced that it could
not determine the true will of the electorate of the 2nd legislative district of Taguig City on the basis alone of the initial revision of
the 100% protested precincts and the 25% counter-protested precincts, it had no other recourse but to continue the revision and
appreciation of all the remaining 75% counter-protested precincts.
20

Aggrieved by the HRETs Resolution No. 08-353 dated November 27, 2008, petitioner elevated the matter to this Court.
Central Issue To be Resolved
The core issue for our determination is whether the HRET committed grave abuse of discretion, amounting to lack or excess of
jurisdiction, in issuing Resolution No. 08-353 dated November 27, 2008.
Contentions Of The Parties
Petitioner argues mainly that private respondent as protestant in the election protest at the HRET had the burden of proving his
cause. Failing to do so, the protest should have been dismissed promptly and not unduly prolonged. For petitioner, the HRETs
declaration of its failure to ascertain the true will of the electorate after the complete revision of all protested precincts
demonstrated private respondents failure to discharge his burden. Thus, the HRET committed grave abuse of discretion in
ordering the continuation of the revision of ballots in the remaining unrevised precincts as its acts amounted to giving private
respondent the undeserved chance to prevail by assisting him in his search for evidence to support his case. The HRET in effect
took the cudgels for him and thereby compromised its impartiality and independence.
Petitioner also avers that private respondents failure to prove his contentions and his (petitioners) concomitant exercise of his
right to withdraw his counter-protest made the continued revision irrelevant. He claims that, since a counter-protest is designed to
protect and advance the interest of the protestee, private respondent should not expect to derive any benefit therefrom. This
justified the allowance of the withdrawal of the counter-protest.
21

Petitioner also labels as grave abuse of discretion the HRETs assumption of the burden of the costs of the continued revision.
For him, the funds of the HRET should not be used for the benefit of a private party, specially when its only objective was to
speculate whether "the failed protestant can win."
22
Also, the HRETs act amounted to an illegal and unconstitutional
disbursement of public funds which is proscribed under Section 29 (1),
23
Article VI of the Constitution.
24

Petitioner adds that the discretion extended to the HRET pursuant to Rule 88 of the HRET Rules (whether or not to continue with
the revision) may be exercised only when the results of the initial revision show that the same reasonably affected the officially-
proclaimed results of the contested election. However, the HRET never made any determination that the results of the revision
showed private respondent to have made substantial recoveries in support of his cause but simply directed the continuation of
the revision on the premise of its failure to determine the true will of the electorate as well as in its discovery of fake/spurious
ballots. Yet, the total number of alleged fake/spurious ballots was only 75, or a little over 5% of his 1,457 lead votes; hence, it
could not reasonably be inferred to have affected the officially proclaimed results. Thus, for petitioner, the fake/spurious ballots
could not be made the basis for the continuation of revision of ballots.
25

In his comment,
26
private respondent counters that no grave abuse of discretion could be attributed to the HRET in issuing the
assailed resolution. The HRET had every right to order the continuation of the revision of ballots after its discovery of
fake/spurious ballots in favor of petitioner. Its pronouncement that it could not determine the true will of the electorate centered
on this discovery. Thus, its constitutional mandate dictated that it ferret out the truth by completing the said revision.
27

Private respondent further argues that, under Rule 88 of its Rules, the HRET had the discretion to either dismiss the counter-
protest or continue with the revision based on the outcome of the initial revision and appreciation proceedings and initial
evidence presented by the parties. The mere filing of a motion to withdraw the protest on the remaining unrevised precincts did
not divest the HRET of its jurisdiction over the electoral protest.
28

Furthermore, the HRET could use its available funds to shoulder the cost of revision as this was merely an incident to its
discretion under Rule 88 and of its plenary powers under the Constitution. To hold otherwise would render its mandated functions
meaningless and nugatory.
29

For its part, the HRET insists in its comment
30
that it did not commit any grave abuse of discretion. It contends that there was a
sufficient and legitimate reason to proceed with the revision of the remaining 75% counter-protested precincts. The discovery of
fake/spurious ballots created serious doubts about the sanctity of the ballots subject matter of the protest and counter-protest.
Thus, the HRET had no other choice but to open the ballot boxes in the counter-protested precincts and continue with its revision
in order to ascertain and determine the true will of the electorate. Moreover, its discretion under the HRET Rules gave it the
imprimatur to order the continuation of the revision if, based on its independent evaluation of the results of the initial revision, the
same affected the officially proclaimed results of the contested election. Since the discovery of fake/spurious ballots, to its mind,
had a bearing on the true results of the election, the HRET submits that it was justified in issuing said order.
31

The HRET also points out that the withdrawal of the revision of ballots was not a vested right of any party but must give way to
the higher dictates of public interest, that of determining the true choice of the people. This determination did not depend on the
desire of any party but was vested solely on the discretion of the HRET as the "sole judge" of all contests relating to the
elections, returns and qualifications of members of the House of Representatives. Moreover, under the HRETs plenary powers, it
could motu proprio review the validity of every ballot involved in a protest or counter-protest.
32

The HRET further claims that petitioner had no reason to worry or to object to its disbursement of its funds for the continuation of
the revision since it had the allotted budget for the same under paragraph I, (C.1) of RA
33
No. 9498,
34
or the General
Appropriations Act for Fiscal Year 2008.
35

Ruling Of The Court
The petition has no merit.
We base our decision not only on the constitutional authority of the HRET as the "sole judge of all contests relating to the
election, returns and qualifications"
36
of its members but also on the limitation of the Courts power of judicial review.
The Court itself has delineated the parameters of its power of review in cases involving the HRET
... so long as the Constitution grants the HRET the power to be the sole judge of all contests relating to the election, returns and
qualifications of members of the House of Representatives, any final action taken by the HRET on a matter within its jurisdiction
shall, as a rule, not be reviewed by this Court . the power granted to the Electoral Tribunal x x x excludes the exercise of any
authority on the part of this Court that would in any wise restrict it or curtail it or even affect the same.
37
(emphasis supplied)
Guided by this basic principle, the Court will neither assume a power that belongs exclusively to the HRET nor substitute its own
judgment for that of the Tribunal.
The acts complained of in this case pertain to the HRETs exercise of its discretion, an exercise which was well within the bounds
of its authority.
Power of HRET to Deny the Motion
To Withdraw/Abandon Counter-Protest
Petitioner submits that there was no point in continuing with the revision of the remaining 75% of the counter-protested precincts
because, notwithstanding the revision of 100% of the protested precincts and 25% of the counter-protested precincts, petitioners
margin over private respondent was still more than a thousand votes.
Petitioner is wrong.
First, there are 732 precincts in the 2nd Legislative District of Taguig City, where respondent protested the election results in 170
precincts and petitioner counter-protested 560 precincts.
38
All in all, therefore, 730 precincts were the subject of the revision
proceedings. While 100% of the protested precincts were already revised, only 25% or 140 of the counter-protested precincts (or
a total of 310 precincts) were actually done. Yet, with 420 more precincts to go had the HRET only been allowed to continue its
proceedings, petitioner claims that respondents were only speculating that a sufficient number of fake/spurious ballots would be
discovered in the remaining 75% counter-protested precincts and that these fake/spurious ballots would overturn the result of the
election.
This is ironic because, while petitioner faults the HRET for allegedly engaging in speculation, his position is itself based on
conjectures. He assumes that revising the 420 remaining precincts will not substantially or significantly affect the original result of
the election which will remain the same. As such, he speculates that, if revised, the 420 remaining precincts will only yield the
same or similar finding as that generated in the 310 precincts already subjected to revision. He presupposes that the HRET can
determine the true will of the electorate even without the 420 or 75% of counter-protested precincts. (This in fact constitutes 57%
of all 730 precincts in the legislative district.)
Petitioner may have assumed too much.
Indeed, due regard and respect for the authority of the HRET as an independent constitutional body require that any finding of
grave abuse of discretion against that body should be based on firm and convincing proof, not on shaky assumptions. Any
accusation of grave abuse of discretion on the part of the HRET must be established by a clear showing of arbitrariness and
improvidence.
39
But the Court finds no evidence of such grave abuse of discretion by the HRET.
In Co v. HRET,
40
we held that:
The Court does not venture into the perilous area of trying to correct perceived errors of independent branches of the
Government. It comes in only when it has to vindicate a denial of due process or correct an abuse of discretion so grave or
glaring that no less than the Constitution calls for remedial action.
41
(emphasis supplied)
Second, the Constitution mandates that the HRET "shall be the sole judge of all contests relating to the election, returns and
qualifications"
42
of its members. By employing the word "sole," the Constitution is emphatic that the jurisdiction of the HRET in the
adjudication of election contests involving its members is exclusive and exhaustive.
43
Its exercise of power is intended to be its
own full, complete and unimpaired.
44

Protective of its jurisdiction and assertive of its constitutional mandate, the Tribunal adopted Rule 7 of the HRET Rules:
RULE 7. Control of Own Functions. The Tribunal shall have exclusive control, direction and supervision of all matters
pertaining to its own functions and operation. (emphasis supplied)
In this connection and in the matter of the revision of ballots, the HRET reserved for itself the discretion to continue or discontinue
the process. Rule 88 of the HRET Rules provides:
RULE 88. Pilot Precincts; Initial Revision. Any provision of these Rules to the contrary notwithstanding, as soon as the issues
in any contest before the Tribunal have been joined, it may direct and require the protestant and counter-protestant, in case the
protest or counter-protest involves more than 50% of the total number of precincts in the district, to state and designate in writing
within a fixed period at most twenty-five (25%) percent of the total number of precincts involved in the protest or counter-protest,
as the case may be, which said party deems as best exemplifying or demonstrating the electoral irregularities or frauds pleaded
by him; and the revision of the ballots and/or reception of evidence shall begin with such pilot precincts designated. Upon the
termination of such initial revision and/or reception of evidence, which presentation of evidence should not exceed ten (10) days,
and based upon what reasonably appears therefrom as affecting or not the officially-proclaimed results of the contested election,
the Tribunal may direct motu propio the continuation of the revision of ballots in the remaining contested precincts, or dismiss the
protest, or the counter-protest, without further proceedings. (emphasis supplied)
The meaning of Rule 88 is plain. The HRET could continue or discontinue the revision proceedings ex propio motu, that is, of its
own accord.
45
Thus, even if we were to adopt petitioners view that he ought to have been allowed by HRET to withdraw his
counter-protest, there was nothing to prevent the HRET from continuing the revision of its own accord by authority of Rule 88.
The only prerequisite to the exercise by the HRET of its prerogative under Rule 88 was its own determination that the evidence
thus far presented could affect the officially proclaimed results. Much like the appreciation of contested ballots and election
documents, the determination of whether the evidence could influence the officially proclaimed results was a highly technical
undertaking, a function best left to the specialized expertise of the HRET. In Abubakar v. HRET,
46
this Court declined to review
the ruling of the HRET on a matter that was discretionary and technical. The same sense of respect for and deference to the
constitutional mandate of the HRET should now animate the Court in resolving this case.
On this specific point, the HRET held that it "[could] not determine the true will of the electorate from the [result of the] initial
revision and appreciation."
47
It was also "convinced that the revision of the 75% remaining precincts [was] necessary under the
circumstances in order to attain the objective of ascertaining the true intent of the electorate and to remove any doubt as to who
between [private respondent] and [petitioner] obtained the highest number of votes in an election conducted in a fair, regular and
honest manner."
48

At the risk of unduly encroaching on the exclusive prerogative of the HRET as the sole judge of election contests involving its
members, the Court cannot substitute its own sense or judgment for that of the HRET on the issues of whether the
evidence presented during the initial revision could affect the officially proclaimed results and whether the continuation
of the revision proceedings could lead to a determination of the true will of the electorate. Regrettably, that is what
petitioner actually wants the Court to do. But in the exercise of its checking function, the Court should merely test whether or not
the governmental branch or agency has gone beyond the constitutional limits of its jurisdiction, not that it erred or had a different
view.
49

Petitioners position disregards, or at least waters down, Rules 7 and 88 of the HRET Rules. If the Court will dictate to the HRET
on how to proceed with these election protest proceedings, the Tribunal will no longer have "exclusive control, direction and
supervision of all matters pertaining to its own functions and operation." It will constitute an intrusion into the HRETs domain and
a curtailment of the HRETs power to act of its own accord on its own evaluation of the evidentiary weight and effect of the result
of the initial revision.
Libanan v. HRET
50
expressed the Courts recognition of the limitation of its own power vis--vis the extent of the authority vested
by the Constitution on the HRET as sole judge of election contests involving its members. The Court acknowledged that it could
not restrict, diminish or affect the HRETs authority with respect to the latters exercise of its constitutional mandate. Overturning
the HRETs exercise of its power under Rule 88 will not only emasculate its authority but will also arrogate unto this Court that
bodys purely discretionary function.
Finally, it is hornbook doctrine that jurisdiction, once acquired, is not lost at the instance of the parties but continues until the case
is terminated.
51
Thus, in Robles v. HRET,
52
the Court ruled:
The mere filing of the motion to withdraw protest on the remaining uncontested precincts, without any action on the part of
respondent tribunal, does not by itself divest the tribunal of its jurisdiction over the case. Jurisdiction, once acquired, is not lost
upon the instance of the parties but continues until the case is terminated. We agree with respondent House of Representatives
Electoral Tribunal when it held:
We cannot agree with Protestee's contention that Protestant's 'Motion to Withdraw Protest on Unrevised Precincts' effectively
with drew the precincts referred to therein from the protest even before the Tribunal has acted thereon. Certainly, the Tribunal
retains the authority to grant or deny the Motion, and the withdrawal becomes effective only when the Motion is granted. To hold
otherwise would permit a party to deprive the Tribunal of jurisdiction already acquired.
We hold therefore that this Tribunal retains the power and the authority to grant or deny Protestant's Motion to Withdraw, if only
to insure that the Tribunal retains sufficient authority to see to it that the will of the electorate is ascertained.
x x x x x x x x x
Where the court has jurisdiction over the subject matter, its orders upon all questions pertaining to the cause are orders within its
jurisdiction, and however erroneous they may be, they cannot be corrected by certiorari. This rule more appropriately applies to
respondent HRET whose independence as a constitutional body has time and again been upheld by Us in many cases. As
explained in the case of Lazatin v. The House of Representatives Electoral Tribunal and Timbol, G.R. No. 84297, December 8,
1988, thus:
The use of the word 'sole' emphasizes the exclusive character of the jurisdiction conferred [Angara v. Electoral Commission,
supra, at 162]. The exercise of the Power by the Electoral Commission under the 1935 Constitution has been described as
`intended to be complete and unimpaired as if it had remained originally in the legislature' [Id. at 175]. Earlier, this grant of power
to the legislature was characterized by Justice Malcolm as 'full, clear and complete' [Veloso v. Board of Canvassers of Leyte and
Samar, 39 Phil. 886 (1919)]. Under the amended 1935 Constitution, the power was unqualifiedly reposed upon the Electoral
Tribunal [Suanes v. Chief Accountant of the Senate, 81 Phil. 818 (1948)] and it remained as full, clear and complete as that
previously granted the legislature and the Electoral Commission [Lachica v. Yap, G.R. No. L-25379, September 25, 1968, 25
SCRA 140]. The same may be said with regard to the jurisdiction of the Electoral Tribunals under the 1987 Constitution. Thus,
'judicial review of decisions or final resolutions of the House Electoral Tribunal is (thus) possible only in the exercise of this
Court's so-called extraordinary jurisdiction, . . . upon a determination that the tribunal's decision or resolution was rendered
without or in excess of its jurisdiction, or with grave abuse of discretion or, paraphrasing Morrera, upon a clear showing of such
arbitrary and improvident use by the Tribunal of its power as constitutes a denial of due process of law, or upon a demonstration
of a very clear unmitigated ERROR, manifestly constituting such a GRAVE ABUSE OF DISCRETION that there has to be a
remedy for such abuse.
53
(emphasis supplied)
Petitioners argument will in effect deprive the HRET of the jurisdiction it has already acquired. It will also hold the HRET hostage
to the whim or caprice of the parties before it. If the HRET is the independent body that it truly is and if it is to effectively carry out
its constitutional mandate, the situation urged by petitioner should not be allowed.
Discretion of HRET to Use Its
Own Funds In Revision Proceedings
When jurisdiction is conferred by law on a court or tribunal, that court or tribunal, unless otherwise provided by law, is deemed to
have the authority to employ all writs, processes and other means to make its power effective.
54
Where a general power is
conferred or duty enjoined, every particular power necessary for the exercise of one or the performance of the other is also
conferred.
55
Since the HRET possessed the authority to motu propio continue a revision of ballots, it also had the wherewithal to
carry it out. It thus ordered the disbursement of its own funds for the revision of the ballots in the remaining counter-protested
precincts. We hark back to Rule 7 of the HRET Rules which provides that the HRET has exclusive control, direction and
supervision of its functions. The HRETs order was but one aspect of its power.
Moreover, Rule 8 of the HRET Rules provides:
RULE 8. Express and Implied Powers. The Tribunal shall have and exercise all such powers as are vested in it by the
Constitution or by law, and such other powers as are necessary or incidental to the accomplishment of its purposes and functions
as set forth in the Constitution or as may be provided by law. (emphasis supplied)
Certainly, the HRETs order that its own funds be used for the revision of the ballots from the 75% counter-protested precincts
was an exercise of a power necessary or incidental to the accomplishment of its primary function as sole judge of election protest
cases involving its members.
Petitioner contends that, even if the HRET could lawfully order the continuation of the revision, RA 9498 did not authorize the
Tribunal to use its own funds for the purpose. This belief is questionable on three grounds.
First, if petitioner hypothetically admits that the HRET has the power to order the continuation of the revision of the 75%
remaining counter-protested precincts, then he should also necessarily concede that there is nothing to prevent the HRET from
using its own funds to carry out such objective. Otherwise, the existence of such power on the part of the HRET becomes
useless and meaningless.
Second, petitioner has a very restrictive view of RA 9498. He conveniently fails to mention that Section 1, Chapter 1 of RA 9498
provides that the HRET has an allotted budget for the "Adjudication of Electoral Contests Involving Members of the House of
Representatives."
56
The provision is general and encompassing enough to authorize the use of the HRETs funds for the revision
of ballots, whether in a protest or counter-protest. Being allowed by law, the use of HRET funds for the revision of the remaining
75% counter-protested precincts was not illegal, much less violative of Article 220 of the Revised Penal Code.
To reiterate, the law (particularly RA 9498) itself has appropriated funds for adjudicating election contests in the HRET. As an
independent constitutional body, and having received the proper appropriation for that purpose, the HRET had wide discretion in
the disbursement and allocation of such funds.
Third, even assuming that RA 9498 did not expressly authorize the HRET to use its own funds for the adjudication of a protest or
counter-protest, it had the inherent power to suspend its own rules
57
and disburse its funds for any lawful purpose it deemed best.
This is specially significant in election contests such as this where what is at stake is the vital public interest in determining the
true will of the electorate. In any event, nothing prevented the HRET from ordering any of the parties to make the additional
required deposit(s) to cover costs, as respondent in fact manifested in the HRET.
58
Petitioner himself admits in his pleadings that
private respondent filed a
Formal Manifestation with the respondent HRET informing respondent HRET that he [was] willing to make the added cash
deposit to shoulder the costs and expenses for the revision of [the] counter-protested precincts.
59

Such disbursement could not be deemed a giving of unwarranted benefit, advantage or preference to a party since the benefit
would actually redound to the electorate whose true will must be determined. Suffrage is a matter of public, not private, interest.
The Court declared in Aruelo, Jr. v. Court of Appeals
60
that "[o]ver and above the desire of the candidates to win, is the deep
public interest to determine the true choice of the people."
61
Thus, in an election protest, any benefit to a party would simply be
incidental.1avvphi1
Moreover, the action of the HRET was permitted by the HRET Rules. Rule 33 of the HRET Rules provides:
RULE 33. Effect of Failure to Make Cash Deposit. If a party fails to make the cash deposits or additional cash deposits herein
provided within the prescribed time limit, the Tribunal may dismiss the protest, counter-protest, or petition for quo warranto, or
take such action as it may deem equitable under the premises. (emphasis supplied)
All told, it should be borne in mind that the present petition is a petition for certiorari under Rule 65 of the Rules of Court. It
alleges that the HRET committed grave abuse of discretion amounting to lack or excess of jurisdiction when it promulgated
Resolution No. 08-353 dated November 27, 2008. But what is "grave abuse of discretion?" It is such capricious and whimsical
exercise of judgment which is tantamount to lack of jurisdiction. Ordinary abuse of discretion is insufficient. The abuse of
discretion must be grave, that is, the power is exercised in an arbitrary or despotic manner by reason of passion or personal
hostility. It must be so patent and gross as to amount to evasion of positive duty or to a virtual refusal to perform the duty
enjoined by or to act at all in contemplation of the law. In other words, for a petition for certiorari to prosper, there must be a clear
showing of caprice and arbitrariness in the exercise of discretion. There is also grave abuse of discretion when there is a
contravention of the Constitution, the law or existing jurisprudence.
62
Using the foregoing as yardstick, the Court finds that
petitioner miserably failed to discharge the onus probandi imposed on him.
In sum, the supremacy of the Constitution serves as the safety mechanism that will ensure the faithful performance by this Court
of its role as guardian of the fundamental law. Awareness of the proper scope of its power of judicial review in cases involving the
HRET, an independent body with a specific constitutional mandate, behooves the Court to stay its hands in matters involving the
exercise of discretion by that body, except in clear cases of grave abuse of discretion.
A Final Word
We are not declaring any winner here. We do not have the authority to do so. We are merely remanding the case to the HRET so
that revision proceedings may promptly continue, precisely to determine the true will of the electorate in the 2nd legislative district
of Taguig City for the 2007-2010 congressional term.
Indeed, considering the paramount need to dispel the uncertainty now beclouding the choice of the electorate and the lifting of
the status quo ante order on June 16, 2009, the revision proceedings shall resume immediately and the electoral case resolved
without delay.
WHEREFORE, the petition is hereby DISMISSED and Resolution No. 08-353 dated November 27, 2008 of the House of
Representatives Electoral Tribunal AFFIRMED.
Costs against petitioner.
SO ORDERED.
RENATO C. CORONA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice
CONSUELO YNARES-SANTIAGO
*

Associate Justice
ANTONIO T. CARPIO
Associate Justice
CONCHITA CARPIO MORALES
*

Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
*
No part.
1
Juvenal (Roman poet and author [AD. 60-138]), Satires.
2
These correspond to the basic parts of a constitution, namely, the constitution of government, the constitution of
liberties or rights and the constitution of sovereignty.
3
This is how the American constitutional scholar Alexander Bickel describes the Supreme Court, "the least
dangerous branch."
4
Rollo, p. 68.
5
Id., p. 131.
6
Id., pp. 57-66.
7
Id., pp. 108-111.
8
Id., pp. 61-63.
9
Id., pp. 57-66.
10
Id., pp. 113-128.
11
Id., p. 118.
12
Id., p. 131.
13
Id., pp. 136-137.
14
Id., p. 167.
15
Id., pp. 168-177.
16
Id., p. 183.
17
Id., p. 184.
18
Id., pp. 185-199.
19
Id., pp. 53-55.
20
Id.
21
Id., pp. 18-21, 32-36.
22
Id., pp. 14-18.
23
SEC. 29 (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.
x x x x
24
Rollo, pp. 14-18.
25
Id., pp. 21-29.
26
Id., pp. 255-278.
27
Id., pp. 256-258, 270.
28
Id., pp. 263-267.
29
Id., p. 272.
30
Id., pp. 288-318.
31
Id., pp. 301-306.
32
Id., pp. 306-307.
33
Republic Act.
34
An Act Appropriating Funds for the Operation of the Government of the Republic of the Philippines from
January One to December Thirty-One, Two Thousand and Eight, and for Other Purposes.
35
Rollo, p. 312.
36
Section 17, Article VI, Constitution.
37
Libanan v. HRET, 347 Phil. 797, 804 (1997).
38
170 protested precincts plus 560 counter-protested precincts equals 730 precincts. This leaves 2 unprotested
precincts.
39
Robles v. HRET, G.R. No. 86647, 05 February 1990, 181 SCRA 780.
40
G.R. Nos. 92191-92 and 92202-03, 30 July 1991, 199 SCRA 692.
41
Id.
42
Supra note 36.
43
Dimaporo v. House of Representatives Electoral Tribunal, G.R. No. 158359, 23 March 2004, 426 SCRA 226;
Angara v. Electoral Commission, 63 Phil. 139 (1936).
44
Angara v. Electoral Commission, id., p. 175.
45
Black's Law Dictionary.
46
G.R. No. 173310, 07 March 2007, 517 SCRA 762.
47
HRET order dated September 25, 2008. Rollo, p. 167.
48
HRET order dated October 21, 2008. Id., pp. 180-183.
49
Co v. HRET, supra note 40.
50
Supra note 37.
51
Jimenez v. Nazareno, G. R. No. L-37933, 15 April 1988, 160 SCRA 1.
52
Supra note 39.
53
Id. (citations omitted), pp. 784-786.
54
Suanes v. Chief Accountant, 81 Phil. 818 (1948).
55
Angara v. Electoral Commission, supra note 43.
56
In particular, the amount of P49,727,000 was appropriated for this purpose.
57
This power is a necessary incident of the power of the electoral tribunals to create their own rules. (See II
Records of the Constitutional Commission 87-88.)
58
In the memorandum (p. 22), filed by private respondent in this Court, he mentioned his manifestation in the
HRET that "he is willing to shoulder the expenses of the revision of the remaining unrevised precincts."
59
Petition, p. 13. Rollo, p. 15. Petitioner made a similar statement in his memorandum (p. 18):
[REYES] filed hisFormal Manifestation with the Respondent HRET declaring that, even as PROTESTANT,
he was more than willing [to] shoulder the costs and remit the added cash deposits for the revision of [petitioners]
protested precincts
60
G.R. No. 107852, 20 October 1993, 227 SCRA 311.
61
Id.
62
Perez v. Court of Appeals, G.R. No. 162580, 27 January 2006, 480 SCRA 411, 416.

The Lawphil Project - Arellano Law Foundation


DISSENTING OPINION
QUISUMBING, J .:
I regret I have to register my dissent in this case. The decision gives the HRET unbridled discretion to proceed with the revision
of ballots even if the protestant failed to show that the results of the initial revision reasonably affected the officially proclaimed
results, in direct contravention of the parameters and guidelines that the HRET itself has set. I elucidate, thus:
Assailed via Petition for Certiorari and Prohibition with prayer for a Temporary Restraining Order (TRO)
1
is Resolution No. 08-
353
2
of the House of Representatives Electoral Tribunal (HRET) dated November 27, 2008 in HRET Case No. 07-027. The
HRET denied petitioner Henry "Jun" Dueas, Jr.s Urgent Motion to Withdraw/Abandon the Remaining Seventy-Five Percent
Counter-Protested Precincts and reiterated its Order
3
dated October 21, 2008 directing the Secretary of the Tribunal to conduct
revision of ballots in the 75% counter-protested precincts beginning December 2008. The HRET additionally recalled its other
Order,
4
likewise dated October 21, 2008, directing protestee Dueas to augment his cash deposit in the amount of three hundred
twenty thousand pesos (P320,000.00) to cover the expenses for the said revision, and instead ordered that the said expenses be
taken from the available funds of the Tribunal.
The factual antecedents are as follows:
Petitioner Henry "Jun" Dueas, Jr. and private respondent Angelito "Jett" P. Reyes were candidates for the position of
Congressman in the 2nd Legislative District of Taguig City during the May 14, 2007 synchronized national and local elections.
After the canvass of the votes on May 23, 2007, Dueas, who garnered a total of 28,564 votes,
5
was proclaimed winner by the
District Board of Canvassers over Reyes who only garnered a total of 27,107 votes.
6

On June 4, 2007, Reyes filed an Election Protest Ad Cautelam
7
before the HRET, alleging that insidious and well-orchestrated
electoral frauds and anomalies were committed in various forms in 170 of the 732 precincts in the 2nd Legislative District of
Taguig City on the day of the elections, during the counting, and during the canvass of the election returns which resulted in the
systematic reduction of the actual votes obtained by him and in the corresponding increase in the votes obtained by Dueas.
Reyes asked for the revision/recount of the ballots and other election documents in 170 precincts
8
so that the true and real
mandate of the electorate may be ascertained.
9

On June 25, 2007, Dueas filed his Answer with Counter-Protest.
10
Dueas denied the charges in the protest and countered that
if there indeed had been electoral frauds and anomalies during the conduct of the elections, the same were perpetrated to favor
Reyes.
11
Dueas counter-protested the results of the elections in 560
12
precincts where he claimed that several ballots were
deliberately misread, miscounted and misappreciated resulting in the illegal reduction of votes in his favor.
13

After the issues were joined, the HRET ordered the collection and retrieval of all ballot boxes and other election paraphernalia
involved in the protest and counter-protest to be brought to the HRET for custody.
On July 12, 2007, the HRET issued an Order setting the date of the Preliminary Conference on July 26, 2007,
14
during which
Dueas and Reyes agreed, among others, that all of the protested precincts would be revised without need of designation of pilot
precincts by Reyes pursuant to Rule 88 of the 2004 HRET Rules, since the total number of the protested precincts was less than
50% of the total number of the precincts in the legislative district.
15

On August 30, 2007, the HRET issued an Order,
16
which directed the revision of ballots starting September 18, 2007.
Reception of evidence for the parties followed upon the completion of the revision of ballots in 100% of the protested precincts
and 25% of the counter-protested precincts. After the filing of the parties respective memoranda, the case was submitted for
resolution.
On September 25, 2008, the HRET issued an Order directing the continuation of the revision and appreciation of the remaining
counter-protested precincts. The Order reads:
It appearing that the Tribunal cannot determine the true will of the electorate from the initial revision and appreciation of the 100%
protested precincts and 25% counter-protested precincts and in view of the discovery of fake/spurious ballots in some of the
protested and counter-protested precincts, the Tribunal pursuant to Rule 88 of the 2004 Rules of the House of Representatives
Electoral Tribunal and Section 17, Article VI of the Constitution, DIRECTS the continuation of the revision and appreciation of the
remaining counter-protested precincts.
SO ORDERED.
17

Not agreeing with the HRETs Order of September 25, 2008, Dueas moved for the reconsideration of the same.
18
However, the
HRET denied his motion in its Order dated October 21, 2008 where the Tribunal decreed:
Wherefore, protestees Motion for Reconsideration of the Order of the Tribunal dated September 25, 2008 is DENIED. The
Secretary of the Tribunal is AUTHORIZED to CONDUCT the revision of ballots in the remaining seventy-five percent (75%)
counter-protested precincts involved in the instant case.
19

On even date, the Tribunal issued another Order which directed Dueas to augment his cash deposit, which would be used to
cover the expenses of the revision of ballots in the remaining 75% counter-protested precincts. The order reads:
WHEREFORE, protestee is DIRECTED to AUGMENT his cash deposit in the amount of three hundred twenty thousand pesos
(P320,000.00) within a non-extendible period of ten (10) days from notice hereof.
SO ORDERED.
20

On October 27, 2008, Dueas filed his Urgent Motion to Withdraw/Abandon the Remaining Seventy-Five Percent Counter-
Protested Precincts.
21
Essentially, Dueas contended that Reyes failed to prove his case through his own evidence in the
designated protested precincts. Thus, as a matter of course, the protest must be dismissed, for it is axiomatic that the protestant
must rely on and stand by his own protested precincts and should not be allowed to depend on the results of the precincts that
he has not protested.
22
Dueas also maintained that being himself a protestant in his own designated counter-protested
precincts, he had the prerogative of withdrawing and/or abandoning the remaining 75% counter-protested precincts, as what he
was doing in this case.
23
Dueas averred that the results of the physical count were practically the same as the officially
proclaimed results, thereby showing that the revision of ballots did not alter the results of the elections in the 2nd Legislative
District of Taguig City.
24
As such, he manifested that there was no need to continue with the revision of the remaining 75%
counter-protested precincts.
25

In his Comment/Opposition
26
filed on November 3, 2008, Reyes contended that Dueas allegations in his urgent motion were
bereft of merit and merely dilatory. He averred that Dueas failure to prove his allegations of election irregularities and anomalies
coupled with his failure to make a reservation during the Preliminary Conference that he would withdraw/abandon his counter-
protest if the protestant failed to prove his cause of action were enough reasons not to allow him to withdraw/abandon his
counter-protest, especially so when the Tribunal had found compelling reasons for its continuance. Reyes further contended that
the withdrawal of the remaining unrevised precincts was highly suspect, a mere afterthought, since Dueas decided on the same
only after his motion for reconsideration of the September 25, 2008 HRET Order was denied. Contrary to the view of Dueas, the
withdrawal/abandonment and suspension of the revision of ballots lay within the exclusive prerogative and wise discretion of the
Tribunal; hence, neither of the parties to an election protest may claim any vested right therefor, Reyes added.
27

On November 27, 2008, the HRET issued its assailed Resolution No. 08-353, which (1) denied Dueas urgent motion, (2)
reiterated its October 21, 2008 Order directing the continuation of the revision of ballots in the remaining 75% counter-protested
precincts, and (3) recalled its other Order, also dated October 21, 2008, which required Dueas to augment his cash deposit. The
HRET instead ordered that the needed funds for the revision be shouldered by the Tribunal.
The HRET held that pursuant to Rule 88 of the 2004 HRET Rules and settled jurisprudence, the Tribunal has the discretion to
either dismiss the protest or counter-protest, or to continue with the revision if necessitated by reasonable and sufficient grounds
affecting the validity of the election, with the end in view of ascertaining the true choice of the electorate. The mere filing of a
motion to withdraw/abandon the unrevised precincts, therefore, does not automatically divest it of its jurisdiction over the same.
Moreover, the Tribunal ruled that its task of determining the true will of the electorate is not confined to the examination of the
contested ballots. Under its plenary power, it can motu proprio review the validity of every ballot involved in a protest or counter-
protest, and the same cannot be frustrated by the mere expedient of filing a motion to withdraw/abandon the remaining counter-
protested precincts. Having ruled with finality that the Tribunal could not determine the true will of the electorate of Taguig City
from the initial revision of the 100% protested precincts and the 25% counter-protested precincts, it had no other recourse but to
continue the revision and appreciation of all the remaining 75% counter-protested precincts.
28

Hence, the present petition where Dueas raised the following issues for our resolution:
I.
WHETHER RESPONDENT HRET CAN FORCE/COMPEL THE REVISION OF A PROTESTEES COUNTER-PROTESTED
PRECINCTS, EVEN AS THE PROTESTANT HAS FAILED TO PROVE HIS CAUSE IN THE MAIN PROTEST AND AFTER
REVISION OF ALL [100%] OF HIS PROTESTED PRECINCTS; AND DESPITE THE FACT THAT THE
PROTESTEE/PETITIONER DUEAS HAS MANIFESTED HIS DESIRE, AND FORMALLY MOVED, TO WITHDRAW AND
ABANDON HIS VERY OWN REMAINING COUNTER-PROTESTED PRECINCTS.
II.
WHETHER THE RESPONDENT HRET, IN FORCING THE REVISION OF THE UNDESIRED COUNTER-PROTEST, CAN
LEGITIMATELY BURDEN ITSELF WITH THE FINANCIAL OBLIGATION OF SHOULDERING THE COSTS AND EXPENSES
OF THE SAID UNWANTED REVISION, IN THE PROCESS, BY DISBURSING PUBLIC FUNDS TO PURSUE AN EXERCISE
THAT IS CLEARLY INTENDED TO SOLELY BENEFIT PROTESTANT/PRIVATE RESPONDENT REYES, A PRIVATE
PARTY.
29

The core issue for our determination is whether the HRET gravely abused its discretion, amounting to lack or excess of
jurisdiction, in issuing the assailed resolution.
Dueas argued in the main that the protestant in an election protest, Reyes in this case, was the party burdened and obligated to
prove his cause. Failing to do so, his protest must not be unduly prolonged but must be immediately dismissed. HRETs
declaration of its failure to ascertain the true will of the electorate after the revision of 100% of the protested precincts had been
completed clearly demonstrated that Reyes failed in his bid. Thus, the Tribunal gravely abused its discretion when it ordered the
continuation of the revision of ballots in the remaining unrevised precincts, as its acts amounted to giving Reyes the underserved
chance to prevail by assisting him in speculatively searching for a basis and evidence to prove his case, effectively taking the
cudgels for him, and thereby compromising its impartiality and independence. He also averred that Reyes failure to prove his
contentions and the concomitant withdrawal of the counter-protest made the continued revision irrelevant and unnecessary,
insisting that he has the right to withdraw his protest. Additionally, Dueas argued that a counter-protest was designed to protect
and advance the interest of the protestee; hence, Reyes could not expect to derive any benefit therefrom. This reason, he urged,
further justified the allowance of the withdrawal of the counter-protest.
30

Dueas also labeled as grave abuse of discretion, the Tribunals act of assuming the burden of the costs of the revision. He
argued that the funds of the Tribunal should not be used for the benefit of a private party, especially so when its only objective
was to speculate whether "the failed protestant can win," and also because such amounted to illegal and unconstitutional
disbursement of public funds, proscribed under Article VI, Section 29 (1)
31
of the Constitution.
32

Dueas added that the discretion extended to the Tribunal pursuant to Rule 88 of the 2004 HRET Rules on whether to continue
with the revision may be exercised only when the results of the initial revision showed that the same reasonably affected the
officially-proclaimed results of the contested election. According to him, the Tribunal never made any determination that the
results of the revision showed Reyes to have made substantial recoveries in support of his cause. Rather, its first order which
directed the continuation of the revision was premised on its failure to determine the true will of the electorate and its discovery of
fake/spurious ballots. He further contended that in any event, the alleged fake/spurious ballots were discovered in only 2 out of
the total 170 protested precincts and in only 2 out of the 140 pilot counter-protested precincts. The total number of alleged
fake/spurious ballots was only 75, or a little over five percent (5%) of his 1,457 lead votes; hence, it could not reasonably be
inferred to have affected the officially proclaimed results. The fake/spurious ballots could not be made the basis for the
continuation of the revision of ballots.
33

Furthermore, Dueas maintained that the difference in the results of the physical count of ballots and the results reflected in the
election returns was inconsequential. As the table
34
herein below will show, he argued that no substantial change in the votes of
the parties occurred after the revision. In fact, he stated, it even worked against Reyes, since the results of the physical count
yielded lower votes for the latter. Thus:
PROTEST PROPER (100%; 170 Precincts):
BARANGAY
Election Returns Physical Count
Reyes Dueas Reyes Dueas
Bagong Tanyag 1,399 2,484 1,394 2,459
Maharlika Village 170 315 154 350
Signal Village 711 1,139 703 1,129
Upper Bicutan 1,605 2,691 1,590 2,668
Western Bicutan 1,245 1,963 1,234 1,951
TOTAL 5,130 8,592 5,075 8,557
COUNTER-PROTEST (25%; 140 Precincts):
BARANGAY
Election Returns Physical Count
Reyes Dueas Reyes Dueas
Maharlika Village 363 149 334 185
Signal Village 3,595 2,260 3,578 2,240
Western Bicutan 3,900 2,058 3,868 2,033
TOTAL 7,858 4,467 7,780 4,458
On December 16, 2008, the Court issued a status quo ante order
35
requiring the parties to observe the status quo prevailing
before the filing of the petition. The Court also required the respondents to comment on the petition.
36

In his Comment,
37
Reyes countered that no grave abuse of discretion may be attributed to the Tribunal in issuing its assailed
resolution. He contended that the HRET had every right to order the continuation of the revision of ballots after its discovery of
fake/spurious ballots in favor of Dueas. Its pronouncement that it could not determine the true will of the electorate, in fact,
centers on this discovery. Thus, its constitutional mandate dictated that it ferret out the truth by completing the said revision. The
Tribunal did not intend to favor him.
38

Reyes also argued that Rule 88 of the 2004 HRET Rules gave the Tribunal the discretion to either dismiss the counter-protest or
continue with the revision based on the outcome of the initial revision and appreciation proceedings and initial evidence
presented by the parties. The mere filing of a motion to withdraw the protest on the remaining unrevised precincts did not divest
the HRET of its jurisdiction over the electoral protest.
39

Furthermore, the Tribunal may use its available funds to shoulder the cost of revision, as this was merely an incident to its
discretion under the said Rule and its plenary powers under the Constitution. To hold otherwise would render its mandated
functions meaningless and nugatory.
40

The Tribunal, for its part, insisted in its Comment
41
that it did not commit any grave abuse of discretion. It belied the claim of
Dueas that there existed no legitimate reason to proceed with the revision of the remaining 75% counter-protested precincts.
Like Reyes, it argued that the discovery of fake/spurious ballots created serious doubts on the sanctity of the ballots subject
matter of the protest and counter-protest. Thus, it had no other choice but to open the ballot boxes in the counter-protested
precincts and continue with its revision in order to ascertain and determine the true will of the electorate. Moreover, it posited that
the discretion accorded to it by the Rules gave it the imprimatur to order the continuation of the revision if based on its
independent evaluation of the results of the initial revision, the same affected the officially proclaimed results of the contested
election. Since the discovery of fake/spurious ballots, to its mind, had a bearing on the true results of the election, the Tribunal
submitted that it was justified in issuing said order.
42

The Tribunal also pointed out that contrary to the belief of Dueas, the withdrawal of the revision of ballots was not a vested right
of any party, as it must succumb to the higher dictates of public interestthat of determining the true choice of the people. And
this determination cannot be made to depend upon the desire of any party, but is vested solely upon the discretion of the HRET
as the "sole judge" of all contests relating to the elections, returns, and qualifications of members of the House of
Representatives. Moreover, it averred that under its plenary powers, it could motu proprio review the validity of every ballot
involved in a protest or counter-protest.
43

The Tribunal further claimed that Dueas also had no reason to worry or to object to its disbursement of its funds for the
continuation of revision, since the Tribunal had the allotted budget for the same under paragraph I, (C.1) of Republic Act No.
9498,
44
or the General Appropriations Act for Fiscal Year 2008.
45

For a petition for certiorari to prosper, it is incumbent upon the petitioner to show that caprice and arbitrariness characterized the
act of the court or agency whose exercise of discretion is being assailed. This is because grave abuse of discretion is the
capricious and whimsical exercise of judgment that amounts to lack or excess of jurisdiction. It contemplates a situation where
the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostilityso patent and gross as to
amount to an evasion of positive duty or a virtual refusal to perform the duty enjoined by, or to act at all in contemplation of law.
Grave abuse of discretion arises when a lower court or tribunal violates the Constitution, the law or existing jurisprudence.
46

Crucial to our determination of whether grave abuse of discretion tainted the issuance of the assailed resolution of the Tribunal is
Rule 88 of the 2004 HRET Rules. Said rule provides:
RULE 88. Pilot Precincts; Initial Revision. Any provision of these Rules to the contrary notwithstanding, as soon as the
issues in any contest before the Tribunal have been joined, it may direct and require the protestant and counter-protestant, in
case the protest or counter-protest involves more than 50% of the total number of precincts in the district, to state and
designate in writing within a fixed period at most twenty-five (25%) percent of the total number of precincts involved in the protest
or counter-protest, as the case may be, which said party deems as best exemplifying or demonstrating the electoral irregularities
or frauds pleaded by him; and the revision of the ballots and/or reception of evidence shall begin with such pilot precincts
designated. Upon the termination of such initial revision and/or reception of evidence, which presentation of evidence should
not exceed ten (10) days, and based upon what reasonably appears therefrom as affecting or not the officially proclaimed
results of the contested election, the Tribunal may direct motu proprio the continuation of the revision of ballots in the
remaining contested precincts, or dismiss the protest, or the counter-protest, without further proceedings. (Emphasis
supplied.)
Rule 88 clearly vested the Tribunal the discretion to either direct the continuation of the revision of ballots in the remaining
contested precincts or dismiss the protest or counter-protest. However, it is also explicit in the Rules that the exercise of this
discretion is not unbridled, but one that must be exercised within the parameters set by the Rules.
Under the said Rule, if the protest or counter-protest involves more than 50% of the total number of precincts in the district, the
Tribunal may direct the protestant or counter-protestant to choose the precincts questioned by him in his protest or counter-
protest that best exemplify or demonstrate the electoral irregularities or frauds pleaded by him, but in no case shall the selected
precincts be more than 25% of the total number of precincts involved in the protest or counter-protest. The revision of ballots
shall begin initially with said pilot precincts. If the protest or counter-protest involves less than 50% of the total number of
precincts in the district, then the entire ballots involved in the protest or counter-protest shall be revised. The Rules provides
further that the Tribunal may motu proprio direct the continuation of the revision or dismiss the protest or counter-protest if the
results of the initial revision reasonably show that the same affected the officially-proclaimed results of the contested election. In
other words, the Tribunal can motu proprio dismiss the protest or counter-protest if the results of the initial revision show that
such revision cannot possibly change the results of the contested election; otherwise, the revision of the ballots in the remaining
contested precincts will continue.
All things carefully considered and viewed in their proper perspective, it is my considered view that the Tribunal acted with grave
abuse of discretion in issuing the assailed Resolution.
In the case at bar, respondents invoked the discretion granted to the Tribunal under Rule 88 to direct the continuation of the
revision of ballots in the remaining 75% counter-protested precincts. As I have stated, the Rules had set guidelines for the
exercise of this discretion. At the risk of being redundant, I emphasize that the ballots in the entire protested precincts had been
revised. Thus, there had been not only an initial revision of ballots therein, but a total revision. Hence, with more reason that the
results thereof must show that Reyes garnered significantly higher votes. However, there was no categorical pronouncement as
to this. Instead, the Tribunal issued a vague Order wherein it directed the continuation of the revision of ballots in the remaining
75% counter-protested precincts, because it could not determine the true will of the electorate from the initial revision and
appreciation of the 100% protested precincts and 25% counter-protested precincts and in view of the discovery of fake/spurious
ballots. The justification given for the continuation of the revision is premised on the discovery of fake/spurious ballots, which
according to the respondents created serious doubts as to who really won in the election.
47
The records show, however, that the
fake/spurious ballots that surfaced were inconsequential. Reyes claimed that 87
48
fake/spurious ballots were uncovered after the
revision of 100% of the protested precincts and 25% of the counter-protested precincts, while Dueas said there were only 75.
No matter what the number, we do not see how such can affect the result of the contested election. As admitted by the parties in
the preliminary conference, Dueas enjoys a lead of 1,457 votes.
49
Eighty-seven votes are but a fraction of Dueas lead margin.
What can be gleaned from the foregoing is that respondents are only speculating that a sufficient number of fake/spurious ballots
will be discovered in the remaining 75% counter-protested precincts and that these fake/spurious ballots will overturn the result of
the election. Thus, it was a grave abuse of discretion for the Tribunal to order the continuation of the said revision based on pure
conjecture.
It is conceded that the mere act of filing a motion to withdraw or abandon a counter-protest does not automatically divest the
Tribunal of its jurisdiction over the case. To have it any other way will frustrate the intent of the Rules to accord the Tribunal the
right to proceed with the case or dismiss the same if the evidence obtaining in the case warrants. However, to repeat, such
discretion may not be exercised wantonly and in reckless disregard of the limitations set by the Rules.
What is apparent is the desire of Reyes for the revision to continue in the hope that the results therefrom would redound to his
benefit, under the pretense that the paramount interest of the electorate to know the true winner prevails over
technicalities.
50
Ultimately, what Reyes is trying to do is underhandedly change the theory of his case by banking on the results of
the revision of ballots in the remaining 75% counter-protested precincts. This cannot be allowed.
At the outset, Reyes seemed confident that the revision of ballots in the 170 precincts he protested will guarantee his win. Seeing
that the revision thereof did not give him the results he was expecting, he veered away from his original theory, and this time
impugned the elections in the precincts not involved in his protest by claiming that revision of ballots must be brought to
completion in order that the peoples choice may be ascertained. Allowing Reyes to rely on the results of the precincts not
included in his protest to establish his case is tantamount to allowing him to substantially amend his protest by broadening its
scope at this very late date which is not allowed under Rule 28
51
of the 2004 HRET Rules. As the clear import of what Reyes
intended to do was violative of the Rules, the Tribunal should not have acquiesced to the same by ordering the continuation of
the revision.
The rule in an election protest is that the protestant or counter-protestant must stand or fall upon the issues he had raised in his
original or amended pleading filed prior to the lapse of the statutory period for the filing of the protest or counter-protest.
52
Thus,
Reyes is bound by the issue that he essentially raised in his election protest; that is, the revision of ballots in the 170 precincts
involved in his protest will reveal the massive fraud that transpired during the election and will confirm his victory. Besides, it is
difficult to comprehend why Reyes did not include in his protest the precincts he now questions, albeit impliedly, if from the very
start he was convinced that the election therein was marred by electoral fraud. What can be inferred from his act is that he did
not attribute any irregularity or fraud therein and accepts the results of the counting as is, but had to change his stance later on
as a last-ditch effort to prove his case.
While it is true that an election contest is impressed with public interest, such that the correct expression of the will of the
electorate must be ascertained without regard to technicalities, this noble principle, however, must not be used as a subterfuge to
hide the real intent of a party to prove his case through unacceptable means. For it is also the policy of the law that election
contests should be decided promptly, such that title to public elective office be not left long under cloud
53
for the obvious reason
that the term of the contested office grows shorter with the passing of each day.
54

Having said that the Tribunal gravely abused its discretion in ordering the continuation of the revision of ballots in the remaining
75% counter-protested precincts, it follows that the Tribunal had no authority to use its own funds to cover the expenses of the
said revision. Even assuming that under the circumstances it could lawfully order the continuation of the revision, still nowhere in
Rep. Act No. 9498 does it state that the Tribunal may use its own funds for the revision. The P49,727,000 allotted budget of the
Tribunal for the adjudication of electoral contests involving members of the House of Representatives was never intended by
Rep. Act No. 9498 to cover expenses for the revision of ballots involved in any electoral contest. The said amount is intended to
be used for personal services and maintenance and other operating expenses.
55
As succinctly stated in Section 1 of Rep. Act No.
9498, the funds are appropriated for the operation of the government and, therefore, not for any other purpose.
56

It will be a different situation, however, if the protestant was able to reasonably demonstrate, based on the results of the revision
of ballots in the precincts he protested, that he stood a good chance of winning, and then the counter-protestant refused to pay
for the costs of the continuation of the revision of the counter-protested precincts yet to be revised for the sole purpose of
preventing the protestant from confirming his victory. In this scenario, I submit that nothing prevents the HRET from relaxing or
suspending its Rules. Sadly, such is not the situation in this case. To repeat, the protestant has not shown that he has any
chance of winning.
Accordingly, I vote to grant the petition.
LEONARDO A. QUISUMBING
Associate Justice

Footnotes
1
Rollo, pp. 3- 46.
2
Id. at 50-56.
3
Id. at 180-183.
4
Id. at 184.
5
Id. at 68.
6
Id. at 131.
7
Id. at 57-66.
8
Id. at 108-111.
9
Id. at 61-63.
10
Id. at 113-128.
11
Id. at 118.
12
Id. at 131. The Preliminary Conference Order shows, however, that the counter-protested precincts number
562.
13
Id. at 120-125.
14
Id. at 11.
15
Id. at 131.
16
Id. at 136-137.
17
Id. at 167.
18
Id. at 168-177.
19
Id. at 183.
20
Id. at 184.
21
Id. at 185-199.
22
Id. at 186.
23
Id. at 187.
24
Id. at 190-193.
25
Id. at 193.
26
Id. at 200-205.
27
Id. at 200-202.
28
Id. at 53-55.
29
Id. at 13-14.
30
Id. at 18-21, 32-36.
31
Sec. 29. (1) No money shall be paid out of the Treasury except in pursuance of an appropriation made by law.
x x x x
32
Rollo, pp. 14-18.
33
Id. at 21-29.
34
Id. at 24-25.
35
Id. at 215-216.
36
Id. at 213-214.
37
Id. at 255-278.
38
Id. at 256-258, 270.
39
Id. at 263-267.
40
Id. at 272.
41
Id. at 288-318.
42
Id. at 301-306.
43
Id. at 306-307.
44
An Act Appropriating Funds for the Operation of the Government of the Republic of the Philippines from
January One to December Thirty-One, Two Thousand and Eight, and for Other Purposes, begun on July 23,
2007.
45
Id. at 312.
46
Cabrera v. Commission on Elections, G.R. No. 182084, October 6, 2008; pp. 4-5. Fernandez v. Commission on
Elections, G.R. No. 171821, October 9, 2006, 504 SCRA 116, 119; Perez v. Court of Appeals, G.R. No. 162580,
January 27, 2006, 480 SCRA 411, 416.
47
Id. at 268-270, 303-306.
48
Id. at 165.
49
Id. at 131.
50
Id. at 261.
51
Rule 28. Amendments; Limitations. After the expiration of the period for the filing of the protest, counter-
protest or petition for quo warranto, substantial amendments which broaden the scope of the action or introduce
an additional cause or causes of action shall not be allowed. Any amendment in matters of form may be allowed
at any stage of the proceedings.
x x x x
52
Batul v. Bayron, G.R. Nos. 157687 and 158959, February 26, 2004, 424 SCRA 26, 33; Trinidad v. Commission
on Elections, G.R. No. 134657, December 15, 1999, 320 SCRA 836, 841; Arroyo v. House of Representatives
Electoral Tribunal, G.R. No. 118597, July 14, 1995, 246 SCRA 384, 402; Ticao v. Naawa, No. L-17890, August
30, 1962, 5 SCRA 946, 950.
53
Gementiza v. Commission on Elections, G.R. No. 140884, March 6, 2001, 353 SCRA 724, 731, citing Estrada
v. Sto. Domingo, No. L-30570, July 29, 1969, 28 SCRA 890, 904.
54
Velez v. Varela, etc and Florido, 93 Phil. 282, 284 (1953); Almeda v. Silvosa and Ramolete, etc., 100 Phil. 844,
849 (1957).
55
C.1 of Rep. Act No. 9498
C.1 HOUSE ELECTORAL TRIBUNAL
For general administration and support, and operations, as indicated hereunder.P 80,841,000
New Appropriations, by Program/Project
==============================
Current_Operating_Expenditures
Maintenance and other

Personal
Services
Operating
Expenses
Capital
Outlays Total
A. PROGRAMS
x x x x
II. Operations
a. Adjudication of Electoral Contests
involving Members of the House of
Representatives 30,182,000 19,545,000 49,727,000

x x x x
56
Section 1. Appropriation of Funds. The following sums, or so much thereof as may be necessary, are hereby
appropriated out of any funds in the National Treasury of the Philippines not otherwise appropriated, for the
operation of the Government of the Republic of the Philippines from January one to December thirty-one, two
thousand and eight, except where otherwise specifically provided herein.

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SEPARATE DISSENTING OPINION
NACHURA, J .:
I respectfully register my dissent to the ponencia of the Honorable Justice Renato C. Corona and join the Honorable Justice
Leonardo A. Quisumbing in his conclusion that the House of Representatives Electoral Tribunal (HRET) acted with grave abuse
of discretion when, on November 27, 2008, it issued the assailed Resolution No. 08-353 in HRET Case No. 07-027. I am in full
agreement with the bases for Justice Quisumbings dissent, which may be summarized, as follows:
1. The Order to proceed with the revision of the remaining 75% of the counter-protested precinctsafter
completion of the revision of all the protested precincts, as well as 25% of the precincts cited in the counter-
protesteffectively violates Rule 88 of the 2004 Rules of the HRET;
2. The discretion of the HRET has to be exercised within the confines of the guidelines prescribed in the Rules;
3. The number of fake/spurious ballots that surfaced during the revision was inconsequential87 ballots (as
claimed by the respondent, although petitioner admits only 75) being "a mere fraction" of petitioners lead margin;
4. To allow the protestant (respondent) to rely on the results of the precincts not included in his protest is
tantamount to granting him the right to substantially amend his protest by broadening its scope at this very late
date, in violation of Rule 28 of the 2004 HRET Rules; and
5. The Tribunal has no authority to use its own funds to cover the expenses of revision of the remaining 75% of
the counter-protested precincts.
To this enumeration of evidently compelling reasons, I wish to interpose, very briefly, two points.
First, the discovery of some 75 (or 87) fake or spurious ballots pales into insignificance and cannot be made as basis for the
course of action taken by the HRET. According to the petitioner, the ballots were discovered in only 4 of the 310 protested and
counter-protested precincts already revised2 in the precincts covered by the protest and 2 in the precincts named in the
counter-protest.
1
Even if it is conceded that all the 75 or 87 ballots were to be deducted from the petitioners votes, per physical
count on revision, the result would simply involve the disregard of the spurious ballots and the maintenance of the vote counts for
the precincts in question, in accordance with the canvassed election returns. In other words, the parties would simply retain their
respective total votes per the canvassed election returns. Given that scenario, the protestant would still not accomplish anything,
as petitioners winning margin would not be dented.
Second, in ordering the use of its own fundspublic fundsto cover the expenses which will be incurred in the revision of the
remaining 75%
counter-protested precincts, the HRET would violate Article 220
2
of the Revised Penal Code, and even risk likely prosecution
under Section 3(e)
3
of Republic Act No. 3019, as amended, or the Anti-Graft and Corrupt Practices Act, by causing undue injury
to the Government and giving a party an unwarranted benefit, advantage or preference in the discharge of their judicial functions
through manifest partiality.
For all of the foregoing reasons, I vote to GRANT the petition.
ANTONIO EDUARDO B. NACHURA

Footnotes
1
Petition.
2
Article 220 of the Revised Penal Code provides:
Art. 220. Illegal use of public funds or property.Any public officer who shall apply any public funds or property
under his administration to any public use other than that for which such funds or property were appropriated by
law or ordinance shall suffer the penalty of prision correccional in its minimum period or a fine ranging from one-
half to the total value of the sum misapplied, if by reason of such misapplication, any damage or embarrassment
shall have resulted to the public service. In either case, the offender shall suffer the penalty of temporary special
disqualification.
3
The provision reads:
SEC. 3. Corrupt Practices of Public Officers. In addition to acts or omissions of public officers already
penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful:
x x x x
(e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted
benefits, advantage or preference in the discharge of his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses or permits or other
concessions.
x x x x

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 117186 June 29, 1995
ALAN M. LOYOLA, petitioner,
vs.
COURT OF APPEALS, THE HON. JUDGE MARIA CARILLO ZALDIVAR in her capacity as the Presiding Judge of the RTC,
Kalibo, Branch 6; THE HON. EDUARDO R. AVELINO, in his capacity as the presiding Judge of the MCTC, Macato-
Tangalan, and ANICETO FERNANDEZ III, respondents.

DAVIDE, JR., J .:
After the issues were joined with the filing of the comments on the petition, we resolved to decide this case on the merits in view
of the novel issue presented, namely, whether the public respondent Court of Appeals committed a reversible error in dismissing
the petitioner's petition for review and in upholding (a) the order of the 4th Municipal Circuit Trial Court (MCTC) of Macato-
Tangalan, Aklan, of 30 May 1994 denying the petitioner's motion to dismiss Election Protest Case No. 94-02 based on a claim
that it was not accompanied by a certification of non-forum shopping required in Administrative Circular No. 04-94 of this Court,
and (b) the decision of Branch 6 of the Regional Trial Court (RTC) of Kalibo, Aklan, of 13 June 1994, denying the petitioner's
petition for certiorari andmandamus the order of the MCTC.
It appears that in the barangay election of 9 May 1994, the Board of petitioner was proclaimed on 10 May 1994 by the Barangay
Board of Canvassers as the duly elected Punong Barangay of barangay Poblacion of the Municipality of Tangalan, Aklan.
On 18 May 1994, private respondent Aniceto Fernandez III, the defeated candidate for Punong Barangay, filed with the 4th
MCTC of Macato-Tangalan an election protest against the petitioner which was docketed as Election protest Case No. 94-02. On
that same date, respondent Judge Eduardo R. Avelino of the said court issued an order directing the issuance of summons to the
petitioner, directing the latter to answer the petition within five days from receipt thereof, and setting the hearings of the case for
25 May to 31 May 1994. The protest was not accompanied by a certification of non-forum shopping required under Administrative
Circular No. 04-94 of this Court which took effect on 1 April 1994. However, the following day or on 19 May 1994, in compliance
with the said circular, the private respondent submitted to the MCTC his certification of non-forum shopping.
On 25 May 1994, the petitioner filed a motion to dismiss the protest for the private respondent's failure to strictly comply with
Administrative Circular No. 04-94. He claims that the filing of the certification on 19 May 1994 was merely the private
respondent's desperate attempt to cure the jurisdictional flaw of his petition.
On 30 May 1994, the MCTC issued an order denying the motion to dismiss and, in support of the denial, it reasoned thus:
The issues to be resolved are the following:
(a) Is Administrative Circular No. 04-94, a substantive law or merely a procedural law that
governs pleading, practice or procedure?
(b) If it is a procedural Law, it is strictly construed in accordance with its terminology or it
may be given a Literal interpretation to give effect to its spirit and purpose?
(c) Is it applicable to election protest for barangay offices where public interests are
involved?
In pursuance to the provisions of the Constitution, the Supreme Court promulgated the Rules of Court as
a uniform rule governing pleading, practice and procedure in all courts of the Philippines. In the exercise
of said power and authority, the Supreme Court issued several amendatory rules, one of which is
Administrative Circular No. 04-94. Being a procedural law, the requirements of said circular is not
jurisdictional in character.
Rule 1, Sec. 2 of the Revised Rules of Court provides:
These rules shall be liberally construed in order to promote their object and to assist the
parties in obtaining just, speedy, and inexpensive determination of every action and
proceeding.
A perusal of the record shows that protestant Aniceto D. Fernandez, III submitted the required affidavit of
Non-Forum Shopping on May 19, 1994, a day after the filing of his petition. Although the affidavit in
question was not simultaneously filed with his petition, the Court considers the same as substantial
compliance.
If we look into the spirit and purpose of Administrative Circular No. 04-94, it was apparently intended to
curtail the pernicious practice of forum shopping, which was considered as one of the factors that caused
backlog in the court dockets.
Obviously, a protestant in an election protest for barangay office cannot conduct forum shopping in any
other courts because the Omnibus Election Code confers the exclusive and original jurisdiction to try the
same to the Municipal Trial Court.
Election contest involves public interest. It imposed upon the court the imperative duty to ascertain by all
means within its command, the real candidate who was chosen by the electorate. It has been postulated
as a fundamental principle in election cases, that technicalities or procedural barriers should not be
allowed to stand if the same would tend to defeat, rather than promote, the interest of justice.
Rule 143 of the Revised Rules of Court states:
These rules shall not apply to land registration, cadastral and election cases,
naturalization and insolvency proceedings, and other cases, not herein provided for,
except by analogy or in a suppletory character and whenever practicable and convenient.
If the Court believes that the application of Administrative Circular No. 04-94 in its suppletory character is
impracticable and inconvenient under the circumstances, the same may not be strictly applied to election
cases.
By legislative fiat the trial of election cases shall be conducted in a summary manner without the
cumbersome procedure prescribed for ordinary litigations in order that its results may be determined in
the shortest time possible.
Contesting the denial of his motion to dismiss, the petitioner filed with Branch 6 of the RTC of Aklan a petition
forcertiorari and mandamus with damages and attorney's fees. The case was docketed as Special Civil Action No. 4828. He
prayed therein that a temporary restraining order be issued enjoining respondent Judge Avelino from proceeding with the
hearing, revision, and recount in the election protest case. He also prayed that, after hearing, Judge Avelino be directed to
dismiss the election protest and that the private respondent be ordered to pay to the petitioner actual damages, attorney's fees,
and litigation expenses.
In a decision rendered on 13 June 1994, the RTC of Aklan, per Judge Maria Carillo Zaldivar, denied the petition for lack of merit.
Regarding the submission of the certification of non-forum shopping a day after the filing of the protest, it held that "amendments
and/or supplements to a complaint is a matter of right before the Answer is filed."
It further ruled that Administrative Circular No. 04-94 does not apply to election cases which are covered by a special law; in any
event, the circular is suppletory to the Rules of Court, and Section 2, Rule 1 of the latter provides that the rules shall be liberally
construed in order to promote their object and to assist the parties in obtaining a just, speedy, and inexpensive determination of
every action and proceeding.
Finally, it opined that since the MCTC in this case is a single sala court, the private respondent cannot go elsewhere but to such
court; besides, Administrative Circular No. 04-94 is a formal procedural requirement which could be cured before the actual trial
is conducted and that since the certification of non-forum shopping was filed within a reasonable time before the petitioner filed
his answer, the Circular was substantially petitioner filed his answer, the Circular was substantially complied with.
His motion to reconsider the decision having been denied by the RTC, the petitioner filed with the Court of Appeals a petition for
review, docketed as CA-G.R. SP No. 34695, to set aside the denial order of the MCTC and the decision of the RTC.
In its decision of 22 August 1994, the Court of Appeals dismissed the petition because no error was committed by the MCTC and
RTC. It agreed with the said courts that there was substantial compliance with Administrative Circular No. 04-94. It further stated:
Moreover, while we believe that the Non-Forum Certification is essential under the
circular, same is not jurisdictional but only a formal requirement, non-compliance therewith
shall cause the dismissal of the action. It is also mandatory but at the same time curable,
specially so when timely or seasonably complied with.
Failing in his bid to obtain a reconsideration of the decision, the petitioner instituted the instant petition for review.
The core issues for our determination are (1) whether Administrative Circular No. 04-94 is mandatory and jurisdictional; and (2)
whether it is applicable in election cases.
I.
By the clear language of the second sanction imposed by Administrative Circular No. 04-94, to wit:
2. Any violation of this Circular shall be a cause for the dismissal of the Complaint, petition, application or
other initiatory pleading, upon motion and after hearing. However any clearly willful and deliberate forum
shopping by any party and his counsel through the filing of multiple complaints or other initiatory
pleadings to obtain favorable action shall be a ground for summary dismissal thereof and shall constitute
direct contempt of court. Furthermore, the submission of a false certification or non-compliance with the
undertakings therein, as provided in Paragraph 1 hereof, shall constitute indirect contempt of court,
without prejudice to disciplinary proceedings against the counsel and the filing of a criminal action against
the guilty party.
it is evident that the Circular is mandatory.
It is not, however, jurisdictional. Jurisdiction over the subject or nature of the action is conferred by law.
1
Otherwise stated, there
is lack of jurisdiction over the nature of the action where the type of action is reposed by law in certain other courts.
2

Substantial compliance with the Circular is sufficient. This Circular expanded or broadened the applicability of Circular No. 28-91
of this Court.
3
In Gabionza vs. Court of Appeals,
4
this Court held that substantial compliance therewith is sufficient for:
It is scarcely necessary to add that Circular No. 28-91 must be so interpreted and applied as to achieve
the purposes projected by the Supreme Court when it promulgated that Circular. Circular No. 28-91 was
designed to serve as an instrument to promote and facilitate the orderly administration of justice and
should not be interpreted with such absolute literalness as to subvert its own ultimate and legitimate
objective or the goal of all rules of procedure which is to achieve substantial justice as expeditiously as
possible.
In this case, it is a fact that the certification of non-forum shopping was filed by the private respondent on 19 May 1994, a day
after he filed his election protest. Since the proclamation of the results of the election was made by the barangay board of
canvassers on 10 May 1994, the private respondent, pursuant to Section 9 of R.A. 6679,
5
had ten days therefrom or until 20 May
1994 within which to file an election protest. The filing of the certification was therefore still within the period for filing an election
protest. Accordingly, although the certification was not filed simultaneously with the initiatory pleading, its filing within the
reglementary period was a substantial compliance with Administrative Circular No. 04-94.
The fact that the Circular requires that it be strictly complied with merely underscores its mandatory nature in that it cannot be
dispensed with or its requirements altogether disregarded, but it does not thereby interdict substantial compliance with its
provisions under justifiable circumstances.
II.
We do not agree with the MCTC that Administrative Circular No. 04-94 is not applicable to election cases because it is merely
amendatory of the Rules of Court and the latter, pursuant to Rule 143 thereof, is not applicable to election cases. There is
nothing in the Circular that indicates that it does not apply to election cases. On the contrary, it expressly provides that the
requirements therein, which are in addition to those in pertinent provisions of the Rules of Court and existing circulars, "shall be
strictly complied with in the filing of complaints, petitions, applications or other initiatory pleadings in all courts and agencies other
than the Supreme Court and the Court of Appeals." Ubi lex non distinguit, nec nos distinguere debemus.
Nor are we persuaded by its ruling that considering that the MCTC has after all the original and exclusive jurisdiction over the
election protest, the certification was unnecessary since the private respondent could not have filed the case anywhere else. The
argument fails to consider the possibility of a party availing, rightly or wrongly, of other legal remedies; or of filing the same
election protest in more than one MTC, despite the erroneous venues; or of even being unaware of the original exclusive
jurisdiction of the MTC over such election protests and filing one of the protests in the RTC by mistake.
WHEREFORE, the instant petition is DENIED and the Municipal Circuit Trial Court of Macato-Tangalan, Aklan, is directed to
proceed with dispatch in the hearing and resolution of Election Protest Case No. 94-02. This decision is immediately executory.
Costs against the petitioner.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Regalado, Romero, Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan, Mendoza and Francisco,
JJ., concur.

Footnotes
1 MANUEL V. MORAN, Comments on the Rules of Court, vol. I, 1979 ed., 480; VICENTE J.
FRANCISCO, The Revised Rules of Court in the Philippines, vol. I, 1973 ed., 884.
2 FLORENZ D. REGALADO, Remedial Law Compendium, vol. I, Fifth Revised Ed., 1988, 152.
3 Additional Requisites for Petitions filed with the Supreme Court and the Court of Appeals to Prevent
Forum Shopping or Multiple Filing of Petitions and Complaints.
4 G.R. No. 112547, Resolution of 18 July 1994, 234 SCRA 192.
5 An Act to Amend Republic Act No. 6653 to Postpone Barangay Elections to March 28, 1989,
Prescribing Additional Rules Governing the Conduct of Barangay Election and for Other Purposes.

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FIRST DIVISION
[G.R. Nos. 117955-58. March 13, 1997]
HERMINIGILDO TOMARONG, VENANCIO SUMAGANG, FRANCISCO
MAGSAYO AND FEDERICO CUEVAS, petitioner, vs. HON.
ANTONIO C. LUBGUBAN in his capacity as presiding judge,
2
nd
MCTC of Lazi, Siquijor, and ANTONIO BANGQUIAO,
DEMETRIO LUMACAD, RICO TUMAPON AND FELIX TAMIAT,
respondents.
D E C I S I O N
BELLOSILLO, J .:
Is Administrative Circular No. 04-94 of the Supreme Court requiring a certification
on non-forum shopping applicable to election contests before municipal trial courts?
Herminigildo Tomarong, Venancio Sumagang, Francisco Magsayo and Federico
Cuevas were candidates for Punong Barangay of Lazi,
Siquijor, who were defeated in the 11 May 1994 Barangay Elections. Each of
them timely filed an election protest
[1]
before the 2nd Municipal Circuit Trial Court of Lazi,
Siquijor, presided over by Judge Antonio C. Lubguban. The winning candidates filed
individual answers praying for the dismissal of the protests respectively filed against
them based on the affirmative defense that the protestants failed to attach to their
petitions the required certification on non-forum shopping pursuant to Supreme Court
Administrative Circular No. 04-94 which provides:
x x x x
1. The plaintiff, petitioner, applicant or principal party seeking relief in the
complaint, petition, application or other initiatory pleading shall certify under oath in
such original pleading, or in a sworn certification annexed thereto and simultaneously
filed therewith, to the truth of the following facts and undertakings: (a) he has not
theretofore commenced any other action or proceeding involving the same issues in
the Supreme Court, the Court of Appeals, or any other tribunal or agency; (b) to the
best of his knowledge, no such action or proceeding is pending in the Supreme Court,
the Court of Appeals, or any other tribunal or agency; (c) if there is any such action
or proceeding which is either pending or may have been terminated, he must state the
status thereof; and, (d) if he should thereafter learn that a similar action or proceeding
has been filed or is pending before the Supreme Court, the Court of Appeals or any
other tribunal or agency, he undertakes to report that fact within five (5) days
therefrom to the court or agency wherein the original pleading and sworn certification
contemplated herein have been filed.
x x x x
2. Any violation of this Circular shall be a cause for the dismissal of the complaint,
petition, application or other initiatory pleading, upon motion and after
hearing. However, any clearly willful and deliberate forum shopping by any party
and his counsel through the filing of multiple complaints or other initiatory pleadings
to obtain favorable action shall be a ground for summary dismissal thereof and shall
constitute direct contempt of court. Furthermore, the submission of a false
certification or non-compliance with the undertakings therein, as provided in
Paragraph 1 hereof, shall constitute indirect contempt of court, without prejudice to
disciplinary proceedings against the counsel and the filing of a criminal action against
the guilty party.
x x x x
The protestants vehemently argued that compliance with the Circular was not required
in election contests. Nonetheless, on 6 June 1994, eighteen (18) days after the election
cases were filed, protestants submitted the required certification with prayer that the
same be admitted as integral part of their protests.
[2]

During the preliminary hearings, the court a quo rejected protestees' affirmative
defense and gave due course to the protests, holding that election cases are not
covered by Administrative Circular No. 04-94.
[3]
Later, however, the municipal trial court
agreed with the joint suggestion of counsel for the protestants and the protestees to
seek a clarification from higher authorities as to the applicability of the Circular to this
case. A query was then addressed to the Secretary of Justice requesting for an opinion
on the matter. The Secretary however declined to render an opinion but advised the
trial court to refer the issue to the Court Administrator. The query was thus sent to the
Court Administrator
[4]
who opined that the certification on non-forum shopping should be
required in election contests before the Municipal Trial Courts.
[5]

On 6 October 1994 the court a quo issued an order dismissing the protests on the
basis of the opinion of the Court Administrator. On 25 October 1994 the protestants
sought a reconsideration of the dismissal but the same was denied.
The protestants then instituted the present petition for certiorari under Rule 65 of the
Rules of Court alleging grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of the lower court when it reversed its initial ruling and dismissed
their protests. They maintain that Administrative Circular No. 04-94 itself explicitly limits
its application to civil complaints and whatever cross-claims, first, second, third, fourth,
et seq. - party complaints that may spring in consequence thereof. According to them,
an election contest is distinct from a civil complaint; it is a special summary proceeding
the object of which is to expedite the settlement of the controversy between candidates
as to who received the majority of the legal ballots in an election for a specified office.
In addition, protestants who are now petitioners herein assert that the jurisdiction of
the MTC over election protests is exclusive and intransferable to any other court hence
the "judicial plague" called forum shopping that is sought to be curbed by the subject
Circular could not occur in the proceedings before it as the filing of protests before any
other court, tribunal or agency would have fatally vitiated them and merited their
instantaneous dismissal.
We do not agree with petitioners. In Loyola v. Court of Appeals,
[6]
which involves
substantially a similar set of facts and issue, this Court held -
We do not agree x x x that Administrative Circular No. 04-94 is not applicable to
election cases x x x x There is nothing in the Circular that indicates that it does not
apply to election cases. On the contrary,
it expressly provides that the requirements therein, which are in addition to those
in pertinent provisions of the Rules of Court and existing circulars, "shall be strictly
complied with in the filing of complaints, petitions, applications or other initiatory
pleadings in all courts and agencies other than Supreme Court and the Court of
Appeals." Ubi lex non distinguit nec nos distinguere debemus.
Nor are we persuaded x x x that considering that the MCTC has after all the original
and exclusive jurisdiction over the election protest, the certification was unnecessary
since the private respondent could not have filed the case anywhere else. The
argument fails to consider the possibility of a party availing, rightly or wrongly, of
other legal remedies; or of filing the same election protest in more than one MTC,
despite the erroneous venues; or of even being unaware of the original exclusive
jurisdiction of the MTC over such election protests and filing one of the protests in the
RTC by mistake.
In the aforecited case, however, the election protest was allowed because the filing
of the required certification a day after the filing of the protest was held to be a
substantial compliance with Administrative Circular No. 04-94. This Court observed -
In this case, it is a fact that the certification of non-forum shopping was filed by the
private respondent on 19 May 1994, a day after he filed the election protest. Since the
proclamation of the results of the election was made by the barangay board of
canvassers on 10 May 1994, the private respondent, pursuant to Section 9 of R.A.
6679, had ten (10) days therefrom or until 20 May 1994 within which to file an
election protest. The filing of the certification was therefore still within the period for
filing an election protest. Accordingly, although the certification was not filed
simultaneously with the initiatory pleading, its filing within the reglementary period
was a substantial compliance with Administrative Circular No. 04-94.
The fact that the Circular requires that it be strictly complied with merely underscores
its mandatory nature in that it cannot be dispensed with or its requirements altogether
desregarded, but it does not thereby interdict substantial compliance with its
provisions under justifiable circumstances.
[7]

In the instant case, we cannot consider the subsequent filing of the required
certification a substantial compliance with the requirements of the Circular, the same
having been submitted only after the lapse of eighteen (18) days from the date of filing
of the protests. Quite obviously, the reglementary period for filing the protest had, by
then, already expired.
It should be emphasized that the mere submission of a certification under
Administrative Circular No. 04-94 after the filing of a motion to dismiss on the ground of
non-compliance thereof does not necessarily operate as a substantial compliance;
otherwise, the Circular would lose its value or efficacy.
[8]

WHEREFORE, the instant petition is DISMISSED. Costs against petitioners.
SO ORDERED
Padilla, (Chairman), Vitug, Kapunan, and Hermosisima, Jr., JJ., concur.Kyle



[1]
Election Case No. 366, Herminigildo Tomarong v. Felix L. Tamiat; Election Case No. 367, Venancio
Sumagang v. Antonio Bangquiao; Election Case No. 368, Francisco Magsayao v. Demetrio
Lumacad; and Election Case No. 369, Federico Cuevas v. Rico Tumapon , all filed 19 May
1994.
[2]
Records, pp. 6-7, 10-11, 13-16.
[3]
Rollo, p. 18.
[4]
Rollo, pp. 37-38
[5]
Rollo, p. 39.
[6]
G.R. No. 117186, 29 June 1995, 245 SCRA 477, 484.
[7]
Id., pp. 483-484.
[8]
Kavinta v. Castillo Jr., G.R. No. 117083, 27 October 1995, 249 SCRA 604, 609.









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Today is Wednesday, July 17, 2013

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 185140 June 30, 2009
JERRY B. AGUILAR, Petitioner,
vs.
THE COMMISSION ON ELECTIONS and ROMULO R. INSOY, Respondents.
D E C I S I O N
NACHURA, J .:
This petition for certiorari under Rules 64 and 65, which stems from pertinent facts and proceedings narrated below, assails the
issuances of the Commission on Elections (COMELEC) in EAC (BRGY) No. 211-2008.
In the October 2007 barangay elections, petitioner Aguilar won the chairmanship of Brgy. Bansarvil 1, Kapatagan, Lanao del
Norte, over private respondent Insoy by a margin of one vote. Not conceding his defeat, Insoy timely instituted a protest docketed
as Election Case No. 516 in the Municipal Trial Court (MTC) of Kapatagan.
1
On April 17, 2008, the MTC rendered its
Decision
2
finding Insoy, who, during the revision garnered 265 votes as against Aguilars 264 votes, as the duly elected punong
barangay. The trial court consequently nullified the proclamation of Aguilar and directed him to vacate the office.
Aggrieved, Aguilar filed on April 21, 2008 his notice of appeal
3
and paid to the trial court the appeal fee ofP1,000.00
4
in
accordance with Rule 14, Sections 8 and 9 of the recently promulgated A.M. No. 07-4-15-SC or the Rules of Procedure in
Election Contests Before the Courts Involving Elective Municipal and Barangay Officials.
5

When the COMELEC received the records elevated by the trial court, its First Division issued on July 31, 2008 the first assailed
Order
6
which pertinently reads:
Pursuant to Sections 3 and 4, Rule 40 of the COMELEC Rules of Procedure which provide for the payment of appeal fee in the
amount of P/3,000.00 within the period to file the notice of appeal, and Section 9(a), Rule 22 of the same Rules, which provides
that failure to pay the correct appeal fee is a ground for the dismissal of the appeal, the Commission (First Division) RESOLVED
as it hereby RESOLVES to DISMISS the instant appeal for Protestant-Appellants (sic) failure to pay the appeal fee as prescribed
by the Comelec Rules of Procedure within the five-(5)-day reglementary period.
SO ORDERED.
7

Adversely affected, Aguilar moved for reconsideration, arguing that the newly promulgated A.M. No. 07-4-15-SC only requires
the payment of P1,000.00 as appeal fee.
8
The COMELEC First Division, however, issued on September 4, 2008 the second
assailed Order
9
stating
Acting on the "Motion for Reconsideration" filed by protestee-appellant Jerry B. Aguilar, through registered mail on 13 August
2008 and received by this Commission on 21 August 2008, seeking reconsideration of this Commissions (First Division) Order
dated 31 July 2008, this Commission (First Division) RESOLVES to DENY the instant motion for movants (sic) failure to pay the
complete P700.00 motion fee.
SO ORDERED.
10

Unperturbed, Aguilar filed another motion for reconsideration, contending, among others, that the order was null and void
because it was issued in violation of the rule that motions for reconsideration should be resolved by the COMELEC en banc. On
October 6, 2008, the COMELEC First Division issued the third assailed Order,
11
which reads in part:
Applying suppletorily Section 2, Rule 52 of the Rules of Court, the second motion for reconsideration filed by protestee-appellant
Jerry Aguilar on 25 September 2008 is hereby DENIED for being a prohibited pleading. And considering that the Motion for
Reconsideration filed by protestee-appellant was denied per Order dated 4 September 2008 by the Commission (First Division)
for movants failure to pay the complete motion fee, the Order dated 31 July 2008 is now final and executory.
WHEREFORE, let entry of judgment be issued in the instant case. The Judicial Records Division-ECAD, this Commission, is
hereby directed to remand within three (3) days from receipt hereof the entire records of this case to the court of origin for its
proper disposition and return to the protestee-appellant the Postal Money Order representing her motion fee in the amount of one
thousand one hundred pesos (P/1,100.00) pesos.
SO ORDERED.
12

On October 16, 2008, the COMELEC First Division issued the Entry of Judgment.
13

Faced with imminent ouster from office, petitioner instituted the instant petition to assail the aforementioned issuances of the
COMELEC First Division.
Readily discernable is that the challenged September 4 and October 6, 2008 Orders
14
were issued not by the COMELEC en
banc but by one of its divisions, the First Division. Settled is the rule that it is the decision, order or ruling of the COMELEC en
banc which, in accordance with Article IX-A, Section 7
15
of the Constitution, may be brought to this Court on certiorari.
16
But this
rule should not apply when a division of the COMELEC arrogates unto itself, and deprives the en banc of the authority to rule on
a motion for reconsideration, as in this case. Further, the rule is not ironclad; it admits of exceptions as when the decision or
resolution sought to be set aside, even if it were merely a Division action, is an absolute nullity.
17

The invalidity of the September 4 and October 6, 2008 Orders arises from the very fact that they were issued by a division of the
COMELEC. The Constitution explicitly establishes, in Article IX-C, Section 3, the procedure for the resolution of election cases by
the COMELEC, thus:
Sec. 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.
18

The COMELEC Rules of Procedure,
19
complementing the constitutional provision, also details the course of action to be
undertaken in the event motions for reconsideration are filed; thus, Rule 19, Sections 5 and 6 provide that
Sec. 5. How Motion for Reconsideration Disposed Of.Upon the filing of a motion to reconsider a decision, resolution, order or
ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the filing thereof, notify the Presiding
Commissioner. The latter shall within two (2) days thereafter certify the case to the Commission en banc.
Sec. 6. Duty of Clerk of Court of Commission to Calendar Motion for Reconsideration.The Clerk of Court concerned shall
calendar the motion for reconsideration for the resolution of the Commission en banc within ten (10) days from the certification
thereof.
20

In this case, petitioners motion for reconsideration of the order dismissing his appeal was not resolved by the COMELEC en
banc, but by the COMELEC First Division, in obvious violation of the provisions of the Constitution and the COMELEC Rules of
Procedure. Stated differently, the division, after dismissing petitioners appeal, arrogated unto itself the en bancs function of
resolving petitioners motion for reconsideration. In Soriano, Jr. v. Commission on Elections,
21
we emphasized the rule that a
motion to reconsider a decision, resolution, order or ruling of a COMELEC division, except with regard to interlocutory orders,
shall be elevated to the COMELEC en banc. Here, there is no doubt that the order dismissing the appeal is not merely an
interlocutory, but a final order.
22
It was, therefore, incumbent upon the Presiding Commissioner of the COMELEC First Division to
certify the case to the COMELEC en banc within two days from notification of the filing of the motion.
This rule should apply whether the motion fee has been paid or not, as what happened in Olanolan v. Commission on
Elections.
23
Indeed, Rule 40, Section 18
24
of the COMELEC Rules of Procedure gives discretion to the COMELEC, in this case,
to the en banc and not to the division, either to refuse to take action until the motion fee is paid, or to dismiss the action or
proceeding.
25

The COMELEC First Divisions unceremonious departure from this constitutionally mandated procedure in the disposition of
election cases must have brought confusion to the parties, so much so, that petitioner filed a second motion for reconsideration
raising this issue. Yet, the COMELEC First Division, in the further assailed October 6, 2008 Order, committed another obvious
error when it again usurped the en bancs authority to resolve motions for reconsideration.
Being a violation of the Constitution and the COMELEC Rules of Procedure, the assailed September 4 and October 6, 2008
Orders are null and void. They were issued by the COMELEC First Division with grave abuse of discretion. By grave abuse of
discretion is meant such capricious and whimsical exercise of judgment equivalent to lack of jurisdiction. Mere abuse of
discretion is not enough. It must be grave, as when it is exercised arbitrarily or despotically by reason of passion or personal
hostility. The abuse 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.
26
Clearly, by arrogating unto itself a power constitutionally lodged in the
Commission en banc, the COMELEC First Division, in this case, exercised judgment in excess of, or without, jurisdiction.
However, instead of remanding this case to the COMELEC en banc for appropriate action on petitioners motion for
reconsideration, we will resolve the propriety of the appeals dismissal, considering the urgent need for the resolution of election
cases, and considering that the issue has, after all, been raised in this petition.
Sections 8 and 9, Rule 14 of A.M. No. 07-4-15-SC
27
provide for the following procedure in the appeal to the COMELEC of trial
court decisions in election protests involving elective municipal and barangay officials:
SEC. 8. Appeal. An aggrieved party may appeal the decision to the Commission on Elections, within five days after
promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or
party if not represented by counsel.
SEC. 9. Appeal fee. The appellant in an election contest shall pay to the court that rendered the decision an appeal fee of One
Thousand Pesos (P1,000.00), simultaneously with the filing of the notice of appeal.
Section 8 was derived from Article IX-C, Section 2(2)
28
of the Constitution and Rule 40, Section 3, par. 1
29
and Rule 41, Section
2(a)
30
of the Rules of Court.
31
Section 9 was taken from Rule 141,
32
Sections 7(l)
33
and 8(f)
34
of the Rules of Court.
35

It should be noted from the afore-quoted sections of the Rule that the appeal fee of P1,000.00 is paid not to the COMELEC but to
the trial court that rendered the decision. Thus, the filing of the notice of appeal and the payment of the P1,000.00 appeal fee
perfect the appeal, consonant with Sections 10 and 11 of the same Rule. Upon the perfection of the appeal, the records have to
be transmitted to the Electoral Contests Adjudication Department of the COMELEC within 15 days. The trial court may only
exercise its residual jurisdiction to resolve pending incidents if the records have not yet been transmitted and before the
expiration of the period to appeal.
36

With the promulgation of A.M. No. 07-4-15-SC, the previous rule that the appeal is perfected only upon the full payment of the
appeal fee, now pegged at P3,200.00, to the COMELEC Cash Division within the period to appeal, as stated in the COMELEC
Rules of Procedure, as amended,
37
no longer applies.
It thus became necessary for the COMELEC to clarify the procedural rules on the payment of appeal fees. For this purpose, the
COMELEC issued on July 15, 2008, Resolution No. 8486,
38
which the Court takes judicial notice of.1avvphi 1The resolution pertinently
reads:
WHEREAS, the Commission on Elections is vested with appellate jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, and those involving elective barangay officials, decided by trial courts of
limited jurisdiction;
WHEREAS, Supreme Court Administrative Order No. 07-4-15 (Rules of Procedure in Election Contests Before the Courts
Involving Elective Municipal and Barangay Officials) promulgated on May 15, 2007 provides in Sections 8 and 9, Rule 14 thereof
the procedure for instituting the appeal and the required appeal fees to be paid for the appeal to be given due course, to wit:
Section 8. Appeal. - An aggrieved party may appeal the decision to the Commission on Elections, within five days after
promulgation, by filing a notice of appeal with the court that rendered the decision, with copy served on the adverse counsel or
party if not represented by counsel.
Section 9. Appeal fee. - The appellant in an election contest shall pay to the court that rendered the decision an appeal fee of
One Thousand Pesos (P1,000.00), simultaneously with the filing of the notice of appeal.
WHEREAS, payment of appeal fees in appealed election protest cases is also required in Section 3, Rule 40 of the COMELEC
Rules of Procedure the amended amount of which was set at P3,200.00 in COMELEC Minute Resolution No. 02-0130 made
effective on September 18, 2002.
WHEREAS, the requirement of these two appeal fees by two different jurisdictions had caused confusion in the implementation
by the Commission on Elections of its procedural rules on payment of appeal fees for the perfection of appeals of cases brought
before it from the Courts of General and Limited Jurisdictions.
WHEREAS, there is a need to clarify the rules on compliance with the required appeal fees for the proper and judicious exercise
of the Commission's appellate jurisdiction over election protest cases.
WHEREFORE, in view of the foregoing, the Commission hereby RESOLVES to DIRECT as follows:
1. That if the appellant had already paid the amount of P1,000.00 before the Regional Trial Court, Metropolitan Trial Court,
Municipal Trial Court or lower courts within the five-day period, pursuant to Section 9, Rule 14 of the Rules of Procedure in
Election Contests Before the Courts Involving Elective Municipal and Barangay Officials (Supreme Court Administrative Order
No. 07-4-15) and his Appeal was given due course by the Court, said appellant is required to pay the Comelec appeal fee of
P3,200.00 at the Commission's Cash Division through the Electoral Contests Adjudication Department (ECAD) or by postal
money order payable to the Commission on Elections through ECAD, within a period of fifteen days (15) from the time of the
filing of the Notice of Appeal with the lower court. If no payment is made within the prescribed period, the appeal shall be
dismissed pursuant to Section 9(a) of Rule 22 of the COMELEC Rules of Procedure, which 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 correct appeal fee; x x x
2. That if the appellant failed to pay the P1,000.00 - appeal fee with the lower court within the five (5) day period as prescribed by
the Supreme Court New Rules of Procedure but the case was nonetheless elevated to the Commission, the appeal shall be
dismissed outright by the Commission, in accordance with the aforestated Section 9(a) of Rule 22 of the Comelec Rules of
Procedure.
The Education and Information Department is directed to cause the publication of this resolution in two (2) newspapers of
general circulation. This resolution shall take effect on the seventh day following its publication.
SO ORDERED.
39

The foregoing resolution is consistent with A.M. No. 07-4-15-SC and the COMELEC Rules of Procedure, as amended. The
appeal to the COMELEC of the trial courts decision in election contests involving municipal and barangay officials is perfected
upon the filing of the notice of appeal and the payment of the P1,000.00 appeal fee to the court that rendered the decision within
the five-day reglementary period. The non-payment or the insufficient payment of the additional appeal fee of P3,200.00 to the
COMELEC Cash Division, in accordance with Rule 40, Section 3 of the COMELEC Rules of Procedure, as amended, does not
affect the perfection of the appeal and does not result in outright or ipso facto dismissal of the appeal. Following, Rule 22,
Section 9(a) of the COMELEC Rules, the appeal may be dismissed. And pursuant to Rule 40, Section 18
40
of the same rules, if
the fees are not paid, the COMELEC may refuse to take action thereon until they are paid and may dismiss the action or the
proceeding. In such a situation, the COMELEC is merely given the discretion to dismiss the appeal or not.
41

Accordingly, in the instant case, the COMELEC First Division, may dismiss petitioners appeal, as it in fact did, for petitioners
failure to pay the P3,200.00 appeal fee.
Be that as it may, the Court still finds that the COMELEC First Division gravely abused its discretion in issuing the order
dismissing petitioners appeal. The Court notes that the notice of appeal and the P1,000.00 appeal fee were, respectively, filed
and paid with the MTC of Kapatagan, Lanao del Norte on April 21, 2008. On that date, the petitioners appeal was deemed
perfected. COMELEC issued Resolution No. 8486 clarifying the rule on the payment of appeal fees only on July 15, 2008, or
almost three months after the appeal was perfected. Yet, on July 31, 2008, or barely two weeks after the issuance of Resolution
No. 8486, the COMELEC First Division dismissed petitioners appeal for non-payment to the COMELEC Cash Division of the
additional P3,200.00 appeal fee.
Considering that petitioner filed his appeal months before the clarificatory resolution on appeal fees, petitioners appeal should
not be unjustly prejudiced by COMELEC Resolution No. 8486. Fairness and prudence dictate that the COMELEC First Division
should have first directed petitioner to pay the additional appeal fee in accordance with the clarificatory resolution, and if the latter
should refuse to comply, then, and only then, dismiss the appeal. Instead, the COMELEC First Division hastily dismissed the
appeal on the strength of the recently promulgated clarificatory resolutionwhich had taken effect only a few days earlier. This
unseemly haste is an invitation to outrage.
The COMELEC First Division should have been more cautious in dismissing petitioners appeal on the mere technicality of non-
payment of the additional P3,200.00 appeal fee given the public interest involved in election cases. This is especially true in this
case where only one vote separates the contending parties. The Court stresses once more that election law and rules are to be
interpreted and applied in a liberal manner so as to give effect, not to frustrate, the will of the electorate.
42

WHEREFORE, premises considered, the petition for certiorari is GRANTED. The July 31, September 4 and October 6, 2008
Orders and the October 16, 2008 Entry of Judgment issued by the COMELEC First Division in EAC (BRGY) No. 211-2008 are
ANNULLED and SET ASIDE. The case is REMANDED to the COMELEC First Division for disposition in accordance with this
Decision.
SO ORDERED.
ANTONIO EDUARDO B. NACHURA
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice
CONSUELO YNARES-SANTIAGO
Associate Justice
ANTONIO T. CARPIO
Associate Justice
RENATO C. CORONA
Associate Justice
(On leave)
CONCHITA CARPIO MORALES
*

Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
*
On leave.
1
Rollo, p. 15.
2
Id. at 26-40.
3
Id. at 41.
4
Id. at 4.
5
Promulgated on April 24, 2007, and became effective on May 15, 2007.
6
Rollo, p. 42.
7
Id.
8
Id. at 44-46.
9
Id. at 51.
10
Id.
11
Id. at 59.
12
Id.
13
Id. at 60.
14
Supra notes 9 and 11.
15
The full text of the provision reads:
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.
16
Reyes v. RTC of Oriental Mindoro, G.R. No. 108886, May 5, 1995, 313 Phil. 727, 734, citing Ong, Jr. v.
Commission on Elections, G.R. No. 105717, December 23, 1992, 216 SCRA 806 and Sarmiento v. Commission
on Elections, G.R. No. 105628, August 6, 1992, 212 SCRA 307.
17
Blanco v. Commission on Elections, G.R. No. 180164, June 17, 2008, 554 SCRA 755, 761; Repol v.
Commission on Elections, G.R. No. 161418, April 28, 2004, 428 SCRA 321, 330.
18
Underscoring supplied. See Milla v. Balmores-Laxa, G.R. No. 151216, July 18, 2003, 454 Phil. 452, 462; Ambil,
Jr. v. Commission on Elections, G.R. No. 143398, October 25, 2000, 398 Phil. 257, 275; and Soller v.
Commission on Elections, G.R. No. 139853, September 5, 2000, 394 Phil. 197, 205, in which the Court stressed
on the COMELECs compliance to the constitutionally mandated procedure in resolving election cases.
19
Approved on February 15, 1993.
20
Underscoring supplied.
21
G.R. No. 164496-505, April 2, 2007, 520 SCRA 88, 106.
22
See Ang v. Grageda, G.R. No. 166239, June 8, 2006, 490 SCRA 424, 437. See, however, Salazar, Jr. v.
Commission on Elections, G.R. No. 85742, April 19, 1990, 184 SCRA 433, 441, in which the Court declared that
the resolution dismissing a pre-proclamation petition for lack of interest due to the failure of the petitioner or his
counsel to appear for hearing, was not a decision nor of such a nature that a motion for reconsideration thereof
would call for resolution by the COMELEC en banc. It should be noted, nevertheless, that in Salazar, the pre-
proclamation petition raised issues that were appropriate for an election contest, and that the pre-proclamation
controversy was no longer viable because proclamation had already been made.
23
G.R. No. 165491, March 31, 2005, 454 SCRA 807, 812.
24
Rule 40, Sec. 18 of the COMELEC Rules of Procedure provides:
Sec. 18. Non-payment of Prescribed Fees.If the fees above prescribed are not paid, Commission may
refuse to take action thereon until they are paid and may dismiss the action or the proceeding.
25
Olanolan v. Commission on Elections, supra note 23, at 815-816; Jaramilla v. Commission on Elections, G.R.
No. 155717, October 23, 2003, 460 Phil. 507, 514; Rodillas v. Commission on Elections, G.R. No. 119055, July
10, 1995, 315 Phil. 789, 794-795..
26
Cantoria v. Commission on Elections, G.R. No. 162035, November 26, 2004, 486 Phil. 745, 751.
27
Supra note 5.
28
Article IX-C, Sec. 2(2) reads:
Section 2. The Commission on Elections shall exercise the following powers and functions:
x 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.
Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and
barangay offices shall be final, executory, and not appealable.
29
Rule 40, Sec. 3, par. 1 of the Rules of Court reads:
Sec. 3. How to appeal.The appeal is taken by filing a notice of appeal with the court that rendered the
judgment or final order appealed from. The notice of appeal shall indicate the parties to the appeal, the
judgment or final order or part thereof appealed from, and state the material dates showing the timeliness
of the appeal.
x x x x
30
Rule 41, Sec. 2(a) reads:
Sec. 2. Modes of Appeal.
(a) Ordinary appeal.The appeal to the Court of Appeals in cases decided by the Regional Trial Court in
the exercise of its original jurisdiction shall be taken by filing a notice of appeal with the court which
rendered the judgment or final order appealed from and serving a copy thereof upon the adverse party.
No record on appeal shall be required except in special proceedings and other cases of multiple or
separate appeals where the law or these Rules so require. In such cases, the record on appeal shall be
filed and served in like manner.
x x x x
31
Rationale of the Proposed Rules of Procedure in Election Contests Before the Regular Courts Involving
Elective Municipal and Barangay Officials, April 19, 2007, p. 19.
32
As revised by A.M. No. 04-2-04-SC effective August 16, 2004.
33
Rule 141, Sec. 7(l) reads:
Sec. 7. Clerks of Regional Trial Courts.
x x x x
(l) For appeals from Regional Trial Courts to Court of Appeals, Sandiganbayan, or Supreme Court
THREE THOUSAND (P3,000.00) PESOS;
x x x x
34
Rule 141, Sec. 8(f) reads:
Sec. 8. Clerks of Court of the First Level Courts.
x x x x
(f) For appeals in all actions or proceedings, including forcible entry and detainer cases, taken from the
courts of first level and petitions to the 2nd level courtsONE THOUSAND (P1,000.00) PESOS;
x x x x
35
Working Draft of the Rules of Procedure in Election Contests Before the Regular Courts Involving Elective
Municipal and Barangay Officials, April 20, 2007, p. 32.
36
Rule 14, Secs. 10 and 11 of A.M. No. 07-4-15-SC read:
Sec. 10. Immediate transmittal of records of the case.The clerk of court shall, within fifteen days from
the filing of the notice of appeal, transmit to the Electoral Contests Adjudication Department, Commission
on Elections, the complete records of the case, together with all the evidence, including the original and
three copies of the transcript of stenographic notes of the proceedings.
Sec. 11. Execution pending appeal.On motion of the prevailing party with notice to the adverse party,
the court, while still in possession of the original records, may, at its discretion, order the execution of the
decision in an election contest before the expiration of the period to appeal, subject to the following rules:
a. There must be a motion by the prevailing party with three-day notice to the adverse party. Execution
pending appeal shall not issue without prior notice and hearing. There must be good reasons for the
execution pending appeal. The court, in a special order, must state the good or special reasons justifying
the execution pending appeal. Such reasons must:
1. constitute superior circumstances demanding urgency that will outweigh the injury or damage
should the losing party secure a reversal of the judgment on appeal; and
2. be manifest, in the decision sought to be executed, that the defeat of the protestee or the
victory of the protestant has been clearly established.
b. If the court grants an execution pending appeal, an aggrieved party shall have twenty working days
from notice of the special order within which to secure a restraining order or status quo order from the
Supreme Court or the Commission on Elections. The corresponding writ of execution shall issue after
twenty days, if no restraining order or status quo order is issued. During such period, the writ of execution
pending appeal shall be stayed.
37
Zamoras v. Commission on Elections, G.R. No. 158610, November 12, 2004, 442 SCRA 397, 402-405; Villota
v. Commission on Elections, G.R. No. 146724, August 10, 2001, 415 Phil. 87, 91-94; Reyes v. RTC of Oriental
Mindoro, supra note 16, at 735-736.
38
Entitled "In the Matter of Clarifying the Implementation of COMELEC Rules Re: Payment of Filing Fees for
Appealed Cases Involving Barangay and Municipal Elective Positions From the Municipal Trial Courts, Municipal
Circuit Trial Courts, Metropolitan Trial Courts and Regional Trial
Courts;"http://www.comelec.gov.ph/resolutions/2008armm/res_8486.html (visited: May 21, 2009).
39
Published on July 17, 2008 in Philippine Star, Manila Standard, and Today.
40
Supra note 24.
41
Jaramilla v. Commission on Elections, supra note 25, at 514.
42
Rodriguez v. Commission on Elections, G.R. No. 61545, December 27, 1982, 204 Phil. 784, 796.

The Lawphil Project - Arellano Law Foundation


Republic of the Philippines
Supreme Court
Manila

EN BANC


MINERVA GOMEZ-CASTILLO
Petitioner,









-versus -
G.R. No. 187231

Present:

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,









COMISSION ON ELECTIONS
and STRIKE B. REVILLA,
Respondents.
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.:

Promulgated:

June 22, 2010
x-----------------------------------------------------------------------------------------x
D E C I S I O N


BERSAMIN, J.:

Petitioner Minerva Gomez-Castillo (Castillo) hereby seeks to nullify the
orders dated January 30, 2009 and March 11, 2009
[1]
issued in EAC No. A-01-2009
by the Commission on Elections (COMELEC).



Antecedents

Castillo and respondent Strike P. Revilla ran for Municipal Mayor of
Bacoor, Cavite during the May 14, 2007 local elections. After the Municipal Board
of Canvassers proclaimed Revilla as the elected Municipal Mayor of
Bacoor, Cavite, Castillo filed an Election Protest Ad Cautelam
[2]
in the Regional
Trial Court (RTC) in Bacoor, Cavite, which was eventually raffled to Branch 19.

Through his Answer, Revilla sought the dismissal of the election protest,
alleging that it was filed in the wrong Branch of the RTC. He pointed out that
Supreme Court Administrative Order (SCAO) No. 54-2007 designated Branch 22 of
the RTC in Imus, Cavite and Branch 88 of the RTC in Cavite City to hear, try and
decide election contests involving municipal officials in Cavite; and that contrary
to SCAO No. 54-2007, Castillo filed his protest in the RTC in Bacoor, Cavite, which
was not the proper court.

On November 21, 2008, Branch 19 dismissed Castillos election protest for
being violative of SCAO No. 54-2007.

On December 23, 2008, Castillo presented a notice of appeal.
[3]
Thereupon,
the RTC ordered that the complete records of the protest be forwarded to the
Election Contests Adjudication Department (ECAD) of the COMELEC.
[4]


The First Division of the COMELEC dismissed the appeal for being brought
beyond the five-day reglementary period, noting that although Castillo had
received the November 21, 2008 order of the RTC on December 15 , 2008, she
filed her notice of appeal on December 23, 2008, a day too late to appeal, to wit:

Pursuant to Section 3, Rule 22 of the COMELEC Rules of Procedure which requires
the appellant to file her notice of appeal within five (5) days after promulgation of the
decision of the court xxx and considering further that jurisprudence holds that
perfection of an appeal in the manner and within the period laid down by law is not only
mandatory but JURISDICTIONAL, this Commission, First
Division, RESOLVES to DISMISS the instant appeal for appellant's failure to file her
Notice of Appeal within the five (5) day reglementary period.

SO ORDERED.
[5]


Castillo moved for the reconsideration of the dismissal of her appeal, but
the COMELEC denied the motion because she did not pay the motion fees
required under Sec. 7(f), Rule 40 of the COMELEC Rules of Procedure, as amended
by COMELEC Resolution No. 02-0130, viz:

The Motion for Reconsideration filed by protestant-appellant Minerva G. Castillo,
thru registered mail on 13 February 2009 and received by this Commission on 4 March
2009, seeking reconsideration of the Commission's (First Division) Order dated 30
January 2009, is hereby DENIED for failure of the movant to pay the necessary motion
fees under Sec. 7(f), Rule 40 of the Comelec Rules of Procedure
[6]
as amended by
Comelec Resolution no. 02-0130.
[7]


Castillo has brought the present recourse, contending that the COMELECs
orders dismissing her appeal and denying her motion for reconsideration were
issued with grave abuse of discretion amounting to lack or excess of jurisdiction.


Parties Arguments

Castillo insists that her notice of appeal was seasonably filed; otherwise, the
RTC would not have given due course to his appeal; that Section 3, Rule 22 of the
COMELEC Rules of Procedure, cited in the assailed order dated January 30, 2009,
did not apply to her case, because Section 2 of Rule I of the COMELEC Rules of
Procedure provides that:

Sec. 2. Applicability.- These rules, except Part VI, shall apply to all actions and
proceedings brought before the Commission. Part VI shall apply to election contests
and Quo Warranto cases cognizable by courts of general jurisdiction.

that the COMELEC Rules of Procedure applied only to actions and proceedings
brought before the COMELEC, not to actions or proceedings originating in courts
of general jurisdiction; that even assuming that the appeal was belatedly filed,
the rules on election contests should be liberally construed to the end that mere
technical objections would not defeat the will of the people in the choice of
public officers; that the Court relaxed on numerous occasions the application of
the rules in order to give due course to belated appeals upon strong and
compelling reasons; that an electoral contest like hers was imbued with public
interest, because it involved the paramount need to clarify the real choice of the
electorate; that Section 4 of Rule I of the COMELEC Rules of Procedure even
allows the COMELEC to suspend its own rules of procedure in order to obtain a
speedy disposition of all matters pending before the COMELEC; and that the
COMELEC should not have dismissed her motion for reconsideration for her mere
failure to pay the corresponding filing fee, but should have considered the
soundness of her argument to the effect that SCAO No. 54-2007 continued to
vest jurisdiction to try and decide election contest involving elective municipal
officials in the RTC as a whole, rendering the designation of the RTC branches to
handle election protests akin to a designation of venue.
Castillo further insists that Section 12 of Rule 2 of the COMELEC Rules of
Procedure provides that assignment of cases to the specially designated courts
should be done exclusively by raffle conducted by the executive judge or by the
judges designated by the Supreme Court; and that her protest was thus duly
raffled to the RTC in Bacoor, Cavite, considering that SCAO 54-2007 should be
construed as a permissive rule that cannot supersede the general rule that
jurisdiction over election contests is vested in the RTC.

In his comment,
[8]
Revilla submits that the COMELEC correctly dismissed
Castillos appeal for being filed beyond the five-day reglementary period
prescribed in Section 3 of Rule 22 of the COMELEC Rules of Procedure, thus:

Section 3. Notice of Appeal. - Within five (5) days after promulgation of the decision
of the court, the aggrieved party may filed with said court a notice of appeal, and serve
a copy thereof upon the attorney of record of the adverse party.

that A.M. No. 07-4-15-SC, otherwise known as The Rules of Procedure in Election
Contests Involving Elective Municipal and Barangay Officials, clearly and
categorically directed:

Section 8. Appeal. - An aggrieved party may appeal the decision to the commission
on Elections, within five days after promulgation, by filing a notice of appeal with the
court that rendered the decision, with copy served on the adverse counsel or party if
not represented by counsel.


that the period for filing an appeal is not a mere technicality of law or procedure
and the right to appeal is merely a statutory privilege that may be exercised only
in the manner prescribed by the law; that the notice of appeal, even on the
assumption that it was filed on time, still remained futile due to the petitioners
failure to pay the corresponding fee for the motion for reconsideration; that the
failure to pay the filing fee rendered the motion for reconsideration a mere scrap
of paper, because it prevented the COMELEC from acquiring jurisdiction over the
protest; and that the COMELEC could not be faulted for applying its procedural
rules to achieve a just and expeditious determination of every proceeding
brought before it.

Issues

Does Section 13 of Rule 2 of A.M. No. 07-4-15-SC designate the RTC Branch
that has jurisdiction over an election contest, or does it merely designate the
proper venuefor filing?

In case the RTC was incorrect, is the error enough to warrant the reversal of
its order of dismissal despite its having attained finality?


Ruling


The petition has no merit.

A
Error of Petitioner in filing the protest in
RTC in Bacoor, not jurisdictional


It is well-settled that jurisdiction is conferred by law. As such, jurisdiction
cannot be fixed by the will of the parties; nor be acquired through waiver nor
enlarged by the omission of the parties; nor conferred by any acquiescence of the
court. The allocation of jurisdiction is vested in Congress, and cannot be
delegated to another office or agency of the Government.

The Rules of Court does not define jurisdictional boundaries of the courts.
In promulgating the Rules of Court, the Supreme Court is circumscribed by the
zone properly denominated as the promulgation of rules concerning pleading,
practice, and procedure in all courts;
[9]
consequently, the Rules of Court can only
determine the means, ways or manner in which said jurisdiction, as fixed by the
Constitution and acts of Congress, shall be exercised. The Rules of Court yields to
the substantive law in determining jurisdiction.
[10]


The jurisdiction over election contests involving elective municipal officials
has been vested in the RTC by Section 251, Batas Pambansa Blg. 881 (Omnibus
Election Code).
[11]
On the other hand, A.M. No. 07-4-15-SC, by specifying the
proper venue where such cases may be filed and heard, only spelled out the
manner by which an RTC with jurisdiction exercises such jurisdiction. Like other
rules on venue, A.M. No. 07-4-15-SC was designed to ensure a just and orderly
administration of justice,
[12]
and is permissive, because it was enacted to ensure
the exclusive and speedy disposition of election protests and petitions for quo
warranto involving elective municipal officials.
[13]


Castillos filing her protest in the RTC in Bacoor, Cavite amounted only to a
wrong choice of venue. Hence, the dismissal of the protest by Branch 19
constituted plain error, considering that her wrong choice did not affect the
jurisdiction of the RTC. What Branch 19 should have done under the
circumstances was to transfer the protest to Branch 22 of the RTC in Imus, Cavite,
which was the proper venue. Such transfer was proper, whether she as the
protestant sought it or not, given that the determination of the will of the
electorate of Bacoor, Cavite according to the process set forth by law was of the
highest concern of our institutions, particularly of the courts.

B
Castillos tardy appeal should be dismissed


Section 8 of A.M. No. 07-4-15-SC provides that:

Section 8. Appeal. - An aggrieved party may appeal the decision to the
Commission on Elections within five days after promulgation by filing a notice of appeal
with the court that rendered the decision with copy served on the adverse counsel or
party if not represented by counsel.












































































Although Castillo had received the November 21, 2008 order of the RTC
on December 15, 2008, she filed her notice of appeal only on December 23, 2008,
or eight days after her receipt of the decision. Her appeal was properly dismissed
for being too late under the aforequoted rule of the COMELEC.

Castillo now insists that her appeal should not be dismissed, because she
claims that the five-day reglementary period was a mere technicality, implying
that such period was but a trivial guideline to be ignored or brushed aside at will.

Castillos insistence is unacceptable. The period of appeal and the
perfection of appeal are not mere technicalities to be so lightly regarded, for
they are essential to the finality of judgments, a notion underlying the
stability of our judicial system.
[14]
A greater reason to adhere to this notion exists
herein, for the short period of five days as the period to appeal recognizes the
essentiality of time in election protests, in order that the will of the electorate is
ascertained as soon as possible so that the winning candidate is not deprived of
the right to assume office, and so that any doubt that can cloud the incumbency
of the truly deserving winning candidate is quickly removed.

Contrary to Castillos posture, we cannot also presume the timeliness of
her appeal from the fact that the RTC gave due course to her appeal by its
elevating the protest to the COMELEC. The presumption of timeliness would not
arise if her appeal was actually tardy.

It is not trite to observe, finally, that Castillos tardy appeal resulted in the
finality of the RTCs dismissal even before January 30, 2002. This result provides
an additional reason to warrant the assailed actions of the COMELEC in dismissing
her appeal. Accordingly, the Court finds that the COMELECs assailed actions were
appropriate and lawful, not tainted by either arbitrariness or whimsicality,

WHEREFORE, the petition is dismissed for lack of merit.

SO ORDERED.



LUCAS P. BERSAMIN
Associate Justice
WE CONCUR:





RENATO C. CORONA
Chief Justice





ANTONIO T. CARPIO CONCHITA CARPIO MORALES
Associate Justice Associate Justice







PRESBITERO J. VELASCO, JR. ANTONIO EDUARDO B. NACHURA
Associate Justice Associate Justice





TERESITA J. LEONARDO DE CASTRO ARTURO D.
BRION

Associate Justice Associate Justice





DIOSDADO M. PERALTA MARIANO C. DEL CASTILLO
Associate Justice Associate Justice





ROBERTO A. ABAD MARTIN S. VILLARAMA, JR.
Associate Justice Associate Justice





JOSE PORTUGAL PEREZ JOSE CATRAL MENDOZA
Associate Justice Associate Justice



C E R T I F I C A T I O N


Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified
that the conclusions in the above Decision were reached in consultation before
the case was assigned to the writer of the opinion of the Court.





RENATO C. CORONA
Chief Justice






[1]
Both issued by then Presiding Commissioner Rene V. Sarmiento; Commissioner Leonardo L. Leonida; and
Commissioner Armando C. Velasco; record, pp. 23 and 37.
[2]
The protest was designated ad cautelam because it was filed during the pendency of Castillo's Petition to
Declare Failure of Elections before the COMELEC, which was dismissed by the Commission shortly after the filing
of the election protest. All these can clearly be gleaned from the third paragraph of the RTC Bacoor's Order
dated November 21, 2008, Record, p. 16.
[3]
Record, p. 1.
[4]
Id., p. 12
[5]
Id., p. 28.
[6]
xxx Legal fees. - The following legal fees shall be charged and collected:
xxx xxx xxx
(1) For filing of a motion for reconsideration on a decision, order or resolution . . . . . P[500.00]
xxx xxx xxx
[7]
Record, p. 37.
[8]
Rollo, pp. 41-49.
[9]
Section 5 (5), Article VIII, 1987 Constitution.
[10]
De Jesus. v. Garcia, G.R. No. L-26816, February 28, 1967, 19 SCRA 554, 558.
[11]
Sec. 251. Election contests for municipal offices.--A sworn petition contesting the election of a municipal
officer shall be filed with the proper regional trial court by any candidate who has duly filed a certificate of
candidacy and has been voted for the same office, within ten days after proclamation of the results of the election.
[12]
Esuerte v. Court of Appeals, G.R. No. 53485, February 6, 1991, 193 SCRA 541, 544.
[13]
A.M. No. 07-4-15-SC, paragraph 6, Whereas clauses.
[14]
E.g., National Power Corporation v. Spouses Laohoo, G.R. No. 151973, July 23, 2009, where the Court states:
[T]he non-perfection of [an] appeal on time is not a mere technicality. Besides, to grant the petitioner's plea
for the relaxation of the rule on technicality would disturb a well-entrenched ruling that could make uncertain
when a judgment attains finality, leaving the same to depend upon the resourcefulness of a party in
concocting implausible excuses to justify an unwarranted departure from the time-honored policy of the law
that the period for the perfection of an appeal is mandatory and jurisdictional.


EN BANC


FELOMINO V. VILLAGRACIA, G.R. No. 168296
Petitioner,
Present:

PUNO, CJ,
QUISUMBING,
YNARES-SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO,
AUSTRIA-MARTINEZ,
- versus - CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO,
GARCIA, and
VELASCO, JR., JJ.

COMMISSION ON ELECTIONS Promulgated:
and RENATO V. DE LA PUNTA,
Respondents. January 31, 2007

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


D E C I S I O N


PUNO, CJ :


At bar is a Petition for Certiorari under Rule 64 of the Rules of Court with
Urgent Prayer for Issuance of Temporary Restraining Order. Petitioner was
proclaimed as winning candidate for the position of Punong Barangay in Barangay
Caawigan, Talisay, Camarines Norte, in the July 15, 2002 barangay elections by a
margin of six (6) votes.
Private respondent filed an election protest with the Municipal Trial Court
of Talisay, Camarines Norte, under Election Case No. 001-2002. After the revision
of ballots, the trial court invalidated thirty-four (34) of the ballots for being
marked. All 34 marked ballots were deducted from the votes of petitioner.

On December 3, 2003, the trial court adjudged private respondent as the
true winner and nullified the proclamation of petitioner, viz.:

WHEREFORE, the Court finds the Protestant Renato dela Punta as the duly
elected Punong Barangay of Caawigan, Talisay, Camarines Norte with the total valid
vote[s] of 187 or a winning margin of 26 votes.

The earlier proclamation made by the Barangay Board of Canvassers of Precinct
No. 15-A and 15-A-2 and 15-A-1 of Barangay Caawigan, Talisay, Camarines Norte is
declared null and void.
[1]



Petitioner appealed the decision with the First Division of the Commission
on Elections (COMELEC) raising for the first time on appeal the issue that the trial
court lacked jurisdiction over the election protest for failure of private respondent
to pay the correct filing fees.

The First Division, through its Resolution
[2]
dated September 9, 2004, set
aside the decision of the trial court and dismissed the election protest of private
respondent for lack of jurisdiction, viz.:

The payment credited to the general fund which could be considered as filing fee
is incomplete considering that Section 6 of Rule 37 of the [COMELEC] Rules on
Procedure requires that it should be One Hundred (P100.00) Pesos. Hence, the trial
court could not have acquired jurisdiction over the *private respondents+ case.
[3]



Private respondent moved for reconsideration. In an Order
[4]
dated October
7, 2004, the First Division elevated the motion for reconsideration to the
COMELEC En Banc.
On June 1, 2005, the COMELEC En Banc promulgated its questioned
Resolution granting the motion for reconsideration and reinstating the decision of
the trial court. It issued a writ of execution
[5]
on July 22, 2005 ordering petitioner
to vacate his post as Punong Barangay of Barangay Caawigan, Talisay, Camarines
Norte, in favor of private respondent.

Hence, this petition raising the following issues:

I

WHETHER THE COMMISSION ON ELECTIONS (COMELEC, FOR SHORT)
GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OF
JURISDICTION IN NOT APPLYING THE SOLLER DOCTRINE IN THE
INSTANT CASE[.]

II

WHETHER THE COMELEC ERRED IN CONCLUDING THAT THE USE OF
THE WORDS JOKER, QUEEN, ALAS, AND KAMATIS, IN MORE
THAN ONE BALLOT WOULD CONSTITUTE MARKED BALLOTS.
[6]



Petitioner contends that had public respondent followed the doctrine
in Soller v. COMELEC,
[7]
it would have sustained the ruling of the First Division that
the trial court lacked jurisdiction to hear the election protest due to private
respondents failure to pay the correct filing fees.

We disagree. The Soller case is not on all fours with the case at bar.
In Soller, petitioner therein filed with the trial court a motion to dismiss private
respondents protest on the ground of, among others, lack of jurisdiction. In the
case at bar, petitioner actively participated in the proceedings and voluntarily
submitted to the jurisdiction of the trial court. It was only after the trial court
issued its decision adverse to petitioner that he raised the issue of jurisdiction for
the first time on appeal with the COMELECs First Division.
[8]


While it is true that a court acquires jurisdiction over a case upon complete
payment of the prescribed filing fee, the rule admits of exceptions, as when a
party never raised the issue of jurisdiction in the trial court. As we stated
in Tijam v. Sibonghanoy, et al., viz.:
[9]


xxx [I]t is too late for the loser to question the jurisdiction or power of the court.
xxx [I]t is not right for a party who has affirmed and invoked the jurisdiction of a court in
a particular matter to secure an affirmative relief, to afterwards deny that same
jurisdiction to escape a penalty.


It was therefore error on the part of the COMELECs First Division to
indiscriminately apply Soller to the case at bar. As correctly pointed out by
public respondent in its questioned Resolution, viz.:

xxx. Villagracia never assailed the proceedings of the trial court for lack of
jurisdiction during the proceedings therein. Instead, he filed an Answer to the Protest
on 2 August 2002 and then actively participated during the hearings and revision of
ballots and subsequently filed his Formal Offer of Exhibits. The issue on the filing fees
was never raised until the Decision adverse to his interest was promulgated by the trial
court and only on [a]ppeal to the COMELEC. Necessarily, we apply the case of Alday vs.
FGU Insurance Corporation where the Supreme Court instructed that although the lack
of jurisdiction of a court may be raised at any stage of the action, a party may be
estopped from raising such questions if he has actively taken part in the very
proceedings which he questions, belatedly objecting to the courts jurisdiction in the
event that the judgment or order subsequently rendered is adverse to him. Villagracia
is therefore estopped from questioning the jurisdiction of the trial court only on
[a]ppeal.
[10]


As to the second issue, petitioner contends that in order to invalidate a
ballot for being marked, it must appear that the voter has placed the mark to
identify the ballot.
[11]
Petitioner argues that the appearance of the words Joker,
Alas, Queen and Kamatis in more than one ballot cannot identify the ballot
of a voter so as to violate the secrecy of votes. Thus, the votes should be counted
in his favor.
[12]


There are 34 marked ballots in the case at bar. Fourteen (14) ballots are
marked with the word Joker; six (6) ballots with the word Alas; seven (7)
ballots with the word Queen; and, seven (7) ballots with the word Kamatis.
These ballots were all deducted by the trial court from the votes of petitioner.
While each of these words appears in more than one ballot and may not identify a
particular voter, it is not necessary that the marks in a ballot should be able to
specifically identify a particular voter.
[13]
We have ruled that the distinction should
always be between marks that were apparently carelessly or innocently made,
which do not invalidate the ballot, and marks purposely placed thereon by the voter
with a view to possible future identification, which invalidates it. The marks which
shall be considered sufficient to invalidate the ballot are those which the voter
himself deliberately placed on his ballot for the purpose of identifying it
thereafter.
[14]


In the case at bar, the marks indicate no other intention than to identify the
ballots. The observation of public respondent on the appearance of the marks on
the questioned ballots is apropos, viz.:

xxx. We take notice of the fact that these marks were all written in the number
7 slot of the list of Kagawad for Sangguniang Barangay. We further take notice that all
these marks appear only in ballots wherein the Punong Barangay voted thereon is Jun
Villagracia, the proclaimed winning candidate and herein [petitioner]. It is therefore
indubitable that these ballots are indeed marked ballots.
[15]



Finally, the present action is one of certiorari under Rule 64 of the Rules of
Court where questions of fact cannot be raised. The familiar rule is that findings
of fact of the [COMELEC] supported by substantial evidence shall be final and
non-reviewable.
[16]
There is no reason to depart from this rule.

IN VIEW WHEREOF, the petition is DISMISSED. The prayer for a Temporary
Restraining Order is DENIED for being moot. The questioned Resolution of the
COMELEC En Banc dated June 1, 2005 in EAC No. 1-2004 is AFFIRMED.

Costs against petitioner.

SO ORDERED.



REYNATO S. PUNO
Chief Justice

WE CONCUR:





LEONARDO A. QUISUMBING
Associate Justice







CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-GUTIERREZ
Associate Justice Associate Justice






ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice





RENATO C. CORONA CONCHITA CARPIO MORALES
Associate Justice Associate Justice





ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA
Associate Justice Associate Justice





DANTE O. TINGA MINITA V. CHICO-NAZARIO
Associate Justice Associate Justice





CANCIO C. GARCIA PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.



REYNATO S. PUNO
Chief Justice



[1]
Resolution, 1-2; Rollo, 14-15.
[2]
Id. at 1-5; Id. at 14-18.
[3]
Id. at 4; Id. at 17.
[4]
Annex C to the Petition; Id. at 28.
[5]
Annex 11 to the Comment/Opposition to Petitioners Petition with Prayer for Temporary Restraining
Order; Id. at 110-111.
[6]
Petition, 5; Id. at 6.
[7]
G.R. No. 139853, September 5, 2000, 339 SCRA 685.
[8]
Comment/Opposition to Petitioners Petition with Prayer for Temporary Restraining Order, 7-
8; Rollo, 91-92.
[9]
No. L-21450, April 15, 1968, 23 SCRA 29.
[10]
Resolution, 10-11; Rollo, 40-41. Citation omitted.
[11]
Memorandum, 6, citing Valenzuela v. Carlos, 42 Phil. 428; Id. at 139.
[12]
Petition, 8-9; Id. at 9-10.
[13]
See Ferrer v. De Alban, 101 Phil. 1018 (1957); Arzaga v. Bobis, Sr., No. L-18953, October 30, 1962,
6 SCRA 386.
[14]
De Guzman, Jr. v. Sison, A.M. No. RTJ-01-1629, March 26, 2001, 355 SCRA 69.
[15]
Resolution, 14; Rollo, 44. Emphases omitted.
[16]
See Rule 64, Section 5 of the 1997 Rules on Civil Procedure.
EN BANC
[G.R. No. 158610. November 12, 2004]
ESTEBAN M. ZAMORAS, petitioner, vs. COMMISSION ON ELECTIONS
(First Division) and BARTOLOME BASTASA, respondents.
D E C I S I O N
CARPIO, J .:
The Case
Petitioner Esteban M. Zamoras (Zamoras) filed this petition for certiorari
[1]
to annul
the following Orders of the Commission on Elections First Division
[2]
(COMELEC) in
EAC No. 4-2003: (1) the Order dated 10 March 2003 dismissing Zamoras appeal; (2)
the Order dated 4 April 2003 denying his motion for reconsideration; and (3) the Order
and entry of judgment dated 8 May 2003 and 12 May 2003, respectively.
The Antecedents
Zamoras and private respondent Bartolome Bastasa (Bastasa) were candidates
for punong barangay of Barangay Galas, Dipolog City in the elections held on 15 July
2002. The Barangay Board of Canvassers proclaimed Bastasa as the duly elected
punong barangay with 1,891 votes against Zamoras 1,836, or a margin of 55 votes.
Zamoras filed an election protest before the Municipal Trial Court in Cities, Branch
1, Dipolog City (MTCC), docketed as Election Case No. 3559. Claiming that fraud and
serious irregularities marred the elections in nine precincts, Zamoras prayed for revision
or recount of the ballots in these nine precincts. On 4 November 2002, the MTCC
rendered its Decision,
[3]
the dispositive portion of which reads:
ACCORDINGLY, judgment is hereby rendered dismissing the Protest and declaring
the Protestee as having garnered and/or obtained Two Hundred Twelve (212) Votes in
his favor as determined by the Courts appreciation of the recounting and/or revision
of the Ballots in this instant Case, and declaring the Protestant as having garnered
and/or obtained Eleven (11) Votes in his favor as determined by the above-said
appreciation.
No award of Damages and Attorneys Fees, the latter by way of Damages, are to be
granted to the Protestee without prejudice to the Attorneys Fees for the professional
services of the latters (Protestees) Counsel. (Quirante vs. IAC, supra.)
SO ORDERED.
[4]

Aggrieved, Zamoras filed a notice of appeal
[5]
with the MTCC. In a notice dated 17
January 2003, the COMELECs Judicial Records Division directed Zamora to
remit P2,600 representing the deficiency in the payment of the required filing fees within
three days from receipt of the notice.
[6]
Zamoras allegedly received the notice on 28
January 2003 and remitted the deficiency by postal money order on the same day.
On 10 March 2003, the COMELEC issued an Order
[7]
dismissing Zamoras appeal
for failure to perfect his appeal within the 5-day reglementary period pursuant to
Sections 3 and 9(d), Rule 22 of the COMELEC Rules of Procedure. The Order
contained a footnote that [p]rotestant-appellant received the November 4, 2002
Decision on November 29, 2002. He filed his appeal on December 9, 2002 or ten (10)
days from receipt of the decision sought to be appealed.
Zamoras filed a motion for reconsideration by registered mail on 21 March 2003. In
its Order
[8]
dated 4 April 2003, the COMELEC denied the motion for reconsideration for
failure of the movant to pay the necessary motion fees under Sec. 7(f), Rule 40 of the
Comelec Rules of Procedure.
On 8 May 2003, the COMELEC issued an Order
[9]
stating as follows:
Considering that the Urgent Motion for Reconsideration with Manifestation of
Merits filed by Protestant-Appellant was denied per Order dated 4 April 2003, the 10
March 2003 Order dismissing Protestant-Appellants appeal for non-payment of the
correct appeal fee is now final and executory.
WHEREFORE, let an Entry of Judgment be issued in the instant case. The Judicial
Records Division-ECAD, this Commission, is hereby directed to remand within three
(3) days from receipt hereof the records of this case to the court of origin for its
proper disposition.
Meanwhile, Zamoras filed another motion for reconsideration by registered mail on
16 May 2003. He also remitted the fees required for the motion by postal money order
on the same date.
The COMELEC deemed the Orders dated 10 March 2003 and 4 April 2003 final and
ordered their entry in the Book of Entries of Judgment on 12 May 2003.
[10]
Zamoras
received by registered mail a copy of the Order dated 8 May 2003 and a copy of the
Entry of Judgment on 27 May 2003.
Hence, the instant petition.
The Issue
Zamoras failed to formulate in his petition the issues for our resolution. However,
we gather that the sole issue is whether the COMELEC gravely abused its discretion
amounting to lack or excess of jurisdiction in dismissing Zamoras appeal and in
denying his motion for reconsideration.
The Courts Ruling
The petition lacks merit.
Zamoras argues that the COMELEC dismissed his appeal on the mistaken belief
that he filed his appeal on 9 December 2002 or ten (10) days from his receipt on 29
November 2002 of the decision. Zamoras claims that he filed his appeal on 2
December 2002, which is three (3) days from 29 November 2002.
Section 3, Rule 22 of the 1993 COMELEC Rules of Procedure specifically
mandates that in appeals from decisions of courts in election protest cases, the notice
of appeal must be filed within five (5) days after the promulgation of the decision. This
section states:
Sec. 3. 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.
Otherwise, the appeal is dismissible under Section 9 of the same rule which reads:
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 correct appeal fee;
(b) x x x;
(c) x x x; and
(d) Failure to file notice of appeal within the prescribed period.
We grant that Zamoras filed his notice of appeal on 2 December 2003 which is
within the 5-day reglementary period. However, Zamoras paid only P600 as appeal fee
which is deficient byP2,600. Sections 3 and 4, Rule 40 of the 1993 COMELEC Rules of
Procedure provide:
Sec. 3. Appeal Fees. - The appellant in election cases shall pay an appeal fee as
follows:
(a) x x x
(b) Election cases appealed from courts of limited jurisdiction P500.00.
In every case, a legal research fee of P20.00 shall be paid by the appellant in
accordance with Section 4, Republic Act No. 3870, as amended.
Sec. 4. Where and When to pay. - The fees prescribed in Sections 1, 2 and 3 hereof
shall be paid to, and deposited with, the Cash Division of the Commission within a
period to file the notice of appeal. (Emphasis supplied)
COMELECs Resolution No. 02-0130, issued on 18 September 2002,
prescribes P3,000 as appeal fee plus P50 for legal research fee and P150 for bailiffs
fee.
After the Judicial Records Division informed Zamoras of the deficiency, he paid the
total amount of P2,600 only on 28 January 2003, or almost two (2) months beyond the
5-day reglementary period to appeal.
Zamoras had only five days from receipt of the decision of the MTCC or until 4
December 2002 to perfect his appeal. While he may have timely filed his notice of
appeal on 2 December 2004, he only paid P600 as appeal fee. He paid the deficiency
of P2,600 representing the appeal and legal research fees only on 28 January 2003.
This case is on all fours with Rodillas v. Comelec,
[11]
where the necessary appeal
fees were likewise paid out of time. The Court held:
The mere filing of the notice of appeal was not enough. It should be accompanied by
the payment of the correct amount of appeal fee (See Galang v. Court of Appeals, 199
SCRA 683 [1991]; Guevarra v. Court of Appeals, 157 SCRA 32 [1988].
xxx
The payment of the full amount of the docket fee is an indispensable step for the
perfection of an appeal (Dorego v. Perez, 22 SCRA 8 [1968]; Bello v. Fernandez, 4
SCRA 135 [1962]). In both original and appellate cases, the court acquires
jurisdiction over the case only upon the payment of the prescribed docket fees as held
in Acda v. Minister of Labor, 119 SCRA 306 (1982). xxx
The subsequent payment of the filing fee on 28 January 2003 did not relieve
Zamoras of his mistake. A case is not deemed duly registered and docketed until full
payment of the filing fee.
[12]
Otherwise stated, the date of the payment of the filing fee is
deemed the actual date of the filing of the notice of appeal.
[13]
The subsequent full
payment of the filing fee on 28 January 2003 did not cure the jurisdictional defect. The
date of payment on 28 January 2003 is the actual date of filing the appeal which is
almost two (2) months after Zamoras received the MTCC Decision on 29 November
2002. This is way beyond the 5-day reglementary period to file an appeal.
The fact that the Judicial Records Division gave Zamoras three (3) days to complete
payment of the filing fee in a notice dated 17 January 2003 is of no moment. At the time
of the notices issuance on 17 January 2003, the 5-day reglementary period to file an
appeal had long lapsed since 5 December 2002. The Judicial Records Division had no
authority to extend the 5-day reglementary period or revive the lapsed reglementary
period by issuing the notice on 17 January 2003. Zamoras cannot rely on such notice
as basis for arguing that he filed his appeal on time.
The Court stressed in Loyola v. COMELEC,
[14]
promulgated on 25 March 1997, that
there is no longer any excuse for shortcomings in the payment of filing fees. The Court
ruled that the case bars any claim of good faith, excusable negligence or mistake in
any failure to pay the full amount of filing fees in election cases which may be filed after
the promulgation of this decision. The Court reiterated the Loyola doctrine in Miranda
v. Castillo,
[15]
Soller v. Commission on Elections,
[16]
and Villota v. Commission on
Elections.
[17]
In these cases, the Court warned that error in the payment of filing fees in
election cases is no longer excusable. The Court declared that it 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 25, 1997.
Zamoras is not only chargeable with the incomplete payment of the appeal fees but
he also failed to remit the required filing fees for his motion for reconsideration. The
payment of the filing fee is a jurisdictional requirement and non-compliance is a valid
basis for the dismissal of the case. The subsequent full payment of the filing fee after
the lapse of the reglementary period does not cure the jurisdictional defect. Such
procedural lapse by Zamoras clearly warrants the outright dismissal of his appeal.
[18]
This
left the COMELEC with no choice except to declare the Orders final and executory.
Finally, Zamoras cannot invoke the argument that courts must liberally construe
technical rules of procedure to promote the ends of justice. The right to appeal is
merely a statutory privilege and a litigant may exercise such right to appeal only in the
manner prescribed by law.
[19]
The requirement of an appeal fee is by no means a mere
technicality of law or procedure.
[20]
It is an essential requirement without which the
decision appealed from would become final and executory as if there was no appeal
filed at all.
[21]

WHEREFORE, we DISMISS the petition for lack of merit. We AFFIRM the
COMELEC First Divisions Orders dated 10 March 2003, 4 April 2003, 8 May 2003 and
12 May 2003 in EAC No. 4-2003.
SO ORDERED.
Davide, Jr., C.J., Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Austria-Martinez, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario, and Garcia,
JJ., concur.
Puno, J., on official leave.
Corona, and Tinga, JJ., on leave.



[1]
Under Rule 65 of the 1997 Rules of Civil Procedure.
[2]
Composed of Commissioners Rufino S. Javier, Luzviminda G. Tancangco and Resurreccion Z. Borra.
[3]
Penned by Judge Felipe M. Abalos.
[4]
Rollo, pp. 242-243.
[5]
Ibid., pp. 244-246.
[6]
Ibid., p. 262. The notice dated 17 January 2003 reads:
This office is in receipt of your notice of appeal with payment of P600.00 as appeal fee. May we
respectfully remind you that pursuant to the Commissions Resolution No. 02-0130 promulgated
on September 18, 2002, the appeal fee is P3,000.00 plus P50.00 for legal research fee
and P150.00 for the bailiffs fee, a total of P3,200.00. Since you have already paid P600.00, you
still have to pay P2,600.00 within 3 days from receipt hereof. Non payment of the same is a
ground for the dismissal of the case.
[7]
Ibid., p. 342.
[8]
Ibid., p. 349.
[9]
Ibid., p. 356.
[10]
Ibid., p. 357.
[11]
315 Phil. 789 (1995).
[12]
Melendres, Jr. v. COMELEC, 377 Phil. 275 (1999).
[13]
Ibid.
[14]
337 Phil. 134 (1997).
[15]
G.R. No. 126361, 19 June 1997, 274 SCRA 503.
[16]
G.R. No. 139853, 5 September 2000, 339 SCRA 685.
[17]
415 Phil. 87 (2001).
[18]
Banaga, Jr. v. Commission on Elections, 391 Phil. 596 (2000).
[19]
Antonio v. COMELEC, 373 Phil. 680 (1999).
[20]
Rodillas v. Comelec, supra note 11.
[21]
Ibid.
EN BANC
[G.R. No. 124137. March 25, 1997]
ROY M. LOYOLA, petitioner, vs. THE COMMISSION ON ELECTIONS,
ROLANDO ROSAS and the REGIONAL TRIAL COURT, BRANCH
89, IMUS, CAVITE, respondent.
D E C I S I O N
DAVIDE, JR., J .:
Is full payment of the required filing fee of P300 a jurisdictional requirement in
election protests? Stated otherwise, does incomplete payment of filing fee suffice,
provided the parties concerned pay the deficiency within the period fixed by the court?
These are the questions that confront us in this special civil action for certiorari to
set aside the 21 March 1996 Resolution
[1]
of the Commission on Elections (COMELEC)
in SPR No. 4-96 entitled Roy M. Loyola vs. Rolando Rosas and Hon. Eduardo Israel
Tanguangco.
The factual and procedural antecedents are related in the challenged Resolution as
follows:
Gleaned from the records, it appears that on May 9, 1995, petitioner Roy M. Loyola
was proclaimed by the Municipal Board of Canvassers as the duly elected Mayor of
the municipality of Carmona, Cavite.
On May 19, 1995, an election protest was filed by herein private respondent Rolando
Rosas before the Regional Trial Court, Branch 89 of Bacoor, Cavite, presided by
Judge Eduardo Israel Tanguangco. The protest was docketed as EPC No. 95-1.
On 4 January 1996, petitioner Loyola (then protestee) filed a Motion to Dismiss
Protest on the ground that protestant (now private respondent) failed to pay the filing
fee of P300.00 at the time of the filing of the protest. He contended that the failure of
protestant to pay the correct amount of filing fee did not vest jurisdiction on the court
to take cognizance over the protest. At this juncture, he cited the case of Gatchalian
vs. Court of Appeals, et al., G.R. No. 107979, June 19, 1995, to the effect that it is the
payment of the filing fee that vests jurisdiction upon the court over the election
protest.
In his opposition, private respondent posited the argument that the factual
circumstances obtaining in the case of Gatchalian do not fall squarely with the present
case as the latter involves non-payment of filing fee while the present case
contemplates a situation where there was only an incomplete payment of filing fee.
In its order of January 17, 1996, the trial court resolved two (2) motions, namely: (1)
protestees Motion to Dismiss Protest, and (2) protestants Motion for Additional
Revision Day and/or Time and to Issue Appropriate Guidelines to Expedite the
Revision Process. Accordingly, the court denied the Motion to Dismiss the protest
for lack of merit holding that there was only an incomplete payment of the correct
filing fee and that protestant, pursuant to the courts order, paid the correct amount
on October 16, 1995. With respect to the private respondents motion, the court said:
x x x, the parties are hereby adjured to direct their respective revisors to exert more
efforts to finish the revision proceedings as soon as possible.
By virtue of the trial courts order, petitioner resorted to the instant Petition
for Certiorari alleging grave abuse of discretion on the part of herein public
respondent Judge in denying his Motion to Dismiss Protest.
On January 25, 1996, the Commission En Banc issued a Temporary Restraining Order
against the respondent Judge directing him to cease and desist from further conducting
revision of ballots and hearing Election Case No. 95-1 entitled Rosas vs. Loyola until
further orders from the Commission.
On February 5, 1996, private respondent filed his answer alleging, among others, that
the case is not a case of non-payment of filing fee but a clear case of incomplete
payment of filing fee and not a ground for dismissing the election protest. He
advanced the argument that both petitioner and private respondent have complied with
the order of the respondent Judge to pay the balance of the correct amount of filing fee
for petitioners counter-protest and for private respondents election protest.
The COMELEC held that the trial court acquired jurisdiction over the protest
pursuant to this Courts ruling in Pahilan v. Tabalba,
[2]
where there was merely
incomplete payment of the filing fee. It disagreed with petitioners view that the
applicable doctrine was that laid down in Gatchalian v. Court of Appeals,
[3]
and
ratiocinated as follows:
It cannot be gainsaid that private respondent Rolando Rosas paid the amount
of P268.00 on October 16, 1995 representing the balance of the correct amount of
filing fee. Consequently, there is no reason why the protest, filed within the ten-day
period provided by the law, should not be given due course by the trial
court. Besides, private respondent should not be faulted in not paying the correct
amount of P300.00 as filing fee as he convincingly made it clear that it was the Clerk
of Court of the Regional Trial Court who asked him to pay the amount of P32.00 as
filing fee for the protest. Moreover, it is highly preposterous to conclude that private
respondent, who has paid other fees other than the questioned filing fee the amount of
which is even higher than the correct filing fee, could deliberately and intentionally
pay only an amount of P32.00 as filing fee.
Aggrieved thereby, petitioner filed the instant special action for certiorari under Rule
65 of the Rules of Court contending that respondent COMELEC gravely abused its
discretion amounting to lack of jurisdiction in not sustaining [his] contention and
submission that said electoral protest deserves outright dismissal on the ground of lack
of jurisdiction of the Regional Trial Court to hear and decide the same. At bottom, he
insists that the rule laid down in Pahilan v. Tabalba has been abandoned in Gatchalian
v. Court of Appeals. Pursuant to Gatchalian, it is the payment of the filing fee that vests
jurisdiction on the court over election protest cases in view of Section 9, Rule 35 of the
COMELEC Rules of Procedure, which provides as follows:
SEC. 9. Filing fee. -- No protest, counter-protest, or protest-in-intervention shall
be given due course without the payment of the filing fee in the amount of three
hundred pesos (P300.00) for each interest.
On the other hand, private respondent claims that it was the Clerk of Court of the
RTC who assessed a filing fee of P32, instead of P300, and that petitioner himself
likewise paid P32 as filing fee for his counter-protest. Both complied with the order of
the RTC requiring them to pay P268 each for the balance of the correct amount of filing
fee. Private respondent further asserts thatGatchalian is not applicable, as it involved
non-payment of filing fee, while here, there was only incomplete payment of the
correct filing fee; hence Pahilan applies.
On their part, the public respondents, through the Office of the Solicitor General,
point out that petitioner himself paid only P32 as filing fee for his counter-protest, and
unconditionally paid the deficiency of P268 after he was also ordered by the RTC to do
so, thus, the filing of his petition for certiorari with the COMELEC only on 23 January
1996, or three months after the issuance of the order, was a mere afterthought. They
likewise contend that petitioners reliance on Gatchalian is misplaced because in that
case there was absolutely no payment at all of the filing fee; and that his conclusion
that Gatchalian superseded Pahilan is incorrect since the latter involved an incomplete
payment of the filing fee and was even cited by the former.
After due deliberation, we find nothing to convince us that public respondent
COMELEC committed any abuse of discretion, much less grave, in its challenged
resolution. Affirmance of its ruling that public respondent RTC committed no grave
abuse of discretion in denying petitioner's Motion to Dismiss Protest is inevitable.
Petitioner never disputed the allegations of private respondent that it was the Clerk
of Court of the RTC who assessed the amount of P32 as filing fee at the time of the
filing of the election protest; that the same amount was assessed for petitioners
counter-protest; and that both complied with the order directing each of them to pay the
deficiency of P268. Petitioners good faith in filing with the COMELEC a petition
for certiorari to challenge the denial of his Motion to Dismiss Protest is obviously
suspect. That he resorted to such remedy confirmed a scheme to unduly delay the
election protest. This circumstance, however, is not decisive in resolving the merits of
the case. We must, nevertheless, reiterate the maxim that he who comes to court must
come with clean hands.
The key issue is whether the RTC acquired jurisdiction over private respondent's
election protest despite the payment, upon the filing thereof, of only a part of the filing
fee fixed in Section 9 of Rule 35 of the COMELEC Rules of Procedure which fixes the
filing fee at P300. Yet, the Clerk of Court assessed and collected only the sum
of P32. Evidently, the Clerk of Court had in mind the former Section 5(a)(11),
[4]
Rule 141
of the Rules of Court on filing fees. The error of the Clerk of Court could be due to
ignorance of Section 9 of Rule 35 of the COMELEC Rules of Procedure and this Courts
4 September 1990 resolution amending Rule 141 of the Rules of Court on legal
fees. Or it could be due to sheer confusion as to which rule would apply in assessing
the filing fee considering that the election protest falls within the exclusive original
jurisdiction of the Regional Trial Court,
[5]
in which case the Rules of Court may govern,
and that the COMELEC Rules of Procedure was primarily intended to govern election
cases before the COMELEC.
[6]
This ignorance or confusion, however, was not fatal to
private respondents cause. The application by the Clerk of Court of Section 5 of Rule
141 of the Rules of Court substantially vested the RTC with jurisdiction over the election
protest. Although this Court had given its imprimatur to said Section 9 of Rule 35 of the
COMELEC Rules of Procedure,
[7]
the failure of the Clerk of Court to take said section
into account is a technicality which cannot be allowed to defeat the viability of the
election protest.
Indisputably, there was only incomplete payment of the filing fee under Section 9 of
Rule 35 of the COMELEC Rules of Procedure, which was not at all attributable to
private respondent, who forthwith paid the deficiency upon a subsequent order by the
RTC. In short, there was substantial compliance with the filing fee requirement in
election cases, for as we held in Pahilan v. Tabalba:
The rules which apply to ordinary civil 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 people must be upheld. Ordinary civil actions
would generally involve private interests while all election cases are, at all times,
invested with public interest which cannot be defeated by mere procedural or
technical infirmities.
In the earlier case of Juliano v. Court of Appeals,
[8]
we ruled:
Well settled is the doctrine that 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. And also settled is the rule
that 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.
[9]
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.
[10]

We have no doubt that petitioner has misread or miscomprehended Gatchalian v.
Court of Appeals. As emphasized by the public and private respondents, that case
involved absence ofpayment of the filing fee. Any suggestion then
that Gatchalian abandoned Pahilan is absolutely baseless. Both can stand together.
This decision, however, must not provide relief to parties in future cases involving
inadequate payment of filing fees in election protests. Pahilan, Gatchalian and this case
would no longer provide any excuse for such shortcoming. Elsewise stated, these
cases now bar any claim of good faith, excusable negligence or mistake in any failure to
pay the full amount of filing fees in election cases which may be filed after the
promulgation of this decision.
IN VIEW OF ALL THE FOREGOING, the instant petition is DISMISSED for want of
merit. The temporary restraining order issued on 25 January 1996 is LIFTED and the
Regional Trial Court, Branch 89, Bacoor, Cavite, is DIRECTED to resolve Election
Protest Case No. 95-1 (Rolando C. Rosas v. Roy Loyola) with all reasonable dispatch.
Costs against petitioner.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Francisco, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.



[1]
Annex A of Petition, Rollo, 20-25.
[2]
230 SCRA 205 [1994].
[3]
245 SCRA 208 [1995].
[4]
Now Section 7(b)(3), which increased the filing fee for actions not involving property from P32 to P400;
per Resolution of this Court dated 4 September 1990.
[5]
Section 2(2), Article IX-C of the Constitution.
[6]
Section 3, Article IX-C provides as follows:
SEC. 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.
[7]
See Gatchalian v. Court of Appeals, supra note 3. It may also be pointed out that under Section 5(5) of
Article VIII (Judicial Department) of the Constitution, "(r)ules of procedure of special courts and
quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court.
[8]
20 SCRA 808, 818-819 (1967). See also Benito v. COMELEC, 235 SCRA 436 (1994); Bince v.
COMELEC, 242 SCRA 273 (1995).
[9]
Citing Gardiner v. Romulo, 26 Phil. 521; Galang v. Miranda, 35 Phil. 269; Jalandoni v. Sarcom, G.R.
No. L-6496, January 27, 1962; Macasunding v. Macalagan, G.R. No. L-22779, March 31, 1965;
Cauton v. Commission on Elections, G.R. No. L-25467, April 27, 1967.
[10]
Citing Ibasco v. Ilao, G.R. No. L-17512, December 29, 1960.
EN BANC
[G.R. No. 146724. August 10, 2001]
GIL TAROJA VILLOTA, petitioner, vs. COMMISSION ON ELECTIONS
and LUCIANO COLLANTES, respondents.
D E C I S I O N
YNARES-SANTIAGO, J .:
This Petition for Certiorari seeks the reversal of the June 13, 2000 Order
[1]
of the
Commission on Elections (COMELEC) in EAC No. 5-2000, which dismissed petitioners appeal
from the decision
[2]
of the Metropolitan Trial Court of Manila, Branch 24, for failure of the
petitioner to perfect his appeal on time; and the Resolution dated February 1, 2001,
[3]
denying
petitioners motion for reconsideration.
The antecedent facts are as follows:
In the May 12, 1997 barangay elections, petitioner was proclaimed as the Punong Barangay
of Barangay 752, Zone 81, District V, over his opponent, herein private
respondent. Consequently, the latter filed an election protest against petitioner with the
Metropolitan Trial Court of Manila, Branch 24. On December 29, 1999, the court, after due
hearing rendered decision declaring private respondent as the duly elected Punong
Barangay. The decretal portion thereof reads:
WHEREFORE, premises considered, judgment is hereby rendered:
1. DECLARING PROTESTANT LUCIANO COLLANTES as the duly elected Punong
Barangay of Barangay 752, Zone 81, District V of the City of Manila in the May 12, 1997
barangay elections;
2. DECLARING AS NULL AND VOID and SETTING ASIDE the proclamation of the
protestee by the barangay board of canvassers; and
3. ORDERING the protestee Villota to vacate in favor of protestant the position of Punong
Barangay of Barangay 752, Zone 81, District V of the City of Manila.
No pronouncement as to cost.
SO ORDERED.
[4]

On March 2, 2000, petitioner filed a notice of appeal and simultaneously paid with the
cashier of Metropolitan Trial Court the amount of P150.00 as appeal fee and another P20.00 as
legal research fee, or a total of P170.00.
On March 9, 2000, or nine (9) days after petitioners receipt of the decision of the trial court,
he again paid with the Cash Division of the COMELEC the sum of P520.00 as appeal fee and
legal research fee. Private respondent filed a motion to dismiss petitioners appeal for failure to
pay the appeal fee within the reglementary period.
On June 13, 2000, the COMELEC issued an Order dismissing the appeal, the dispositive
portion of which reads:
WHEREFORE, premises considered, this Commission (FIRST DIVISION)
RESOLVED, as It hereby RESOLVES to DISMISS the instant appeal for failure of
the Commission to acquire appellate jurisdiction over the case.
Accordingly, the December 29, 1999 decision of the Metropolitan Trial Court of
Manila, Branch 24 in Election Protest Case No. 97001263 is now FINAL AND
EXECUTORY.
Let the records of this case be immediately remanded to the court a quo for the
execution of its December 29, 2000 Decision.
SO ORDERED.
[5]

A motion for reconsideration of the foregoing Order was denied by the COMELEC in its
questioned Resolution dated February 1, 2001.
Hence, the instant petition.
The sole issue for resolution here is whether or not the COMELEC gravely abused its
discretion amounting to lack or excess of jurisdiction in dismissing petitioners appeal and in
denying his motion for reconsideration.
Section 3, Rule 22, of the COMELEC Rules of Procedure
[6]
specifically mandates that the
notice of appeal must be filed within five (5) days after the promulgation of the decision,
otherwise, the appeal is dismissible under Section 9,
[7]
of the same rule.
Corollary thereto, pertinent portion of Sections 3 and 4, Rule 40, of the COMELEC Rules of
Procedure, provide:
Section 3. Appeal Fees. The appellant in election cases shall pay an appeal fee as
follows:
(a) x x x x x x x x x
(b) Election cases appealed from courts of limited jurisdiction P500.00.
In every case, a legal research fee of P20.00 shall be paid by the appellant in
accordance with Section 4, Republic Act No. 3870, as amended.
Section 4. Where and When to pay. The fees prescribed in Sections x x x 3 hereof
shall be paid to, and deposited with, the Cash Division of the Commission within the
period to file the notice of appeal.
In Soller v. COMELEC, et al.,
[8]
reiterating the cases of Loyola v. COMELEC, et
al.,
[9]
and Miranda v. Castillo, et al.,
[10]
the Court stressed the caveat that errors in the payment of
filing fees in election cases is no longer excusable. Thus, on the matter of non-payment or
incomplete payment of filing fees we opined that: the Court 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 25, 1997.
[11]

In the case at bar, although petitioner filed his notice of appeal within the reglementary
period, however, he erroneously paid the required appeal fees with the cashier of the
Metropolitan Trial Court and not with the Cash Division of the COMELEC, as required in
Sections 3 and 4, Rule 40, of the COMELEC Rules of Procedure. After he realized his mistake,
petitioner paid again with the Cash Division of the COMELEC the total amount of P520.00 only
on March 9, 2000 or four (4) days beyond the five (5) day reglementary period to appeal.
Verily, the present controversy is no different from the case of Rodillas v. COMELEC, et
al.,
[12]
where the necessary appeal fees were likewise paid out of time. The Court held therein
that:
The mere filing of the notice of appeal was not enough. It should be accompanied by
the payment of the correct amount of appeal fee (See Galang v. Court of Appeals, 199
SCRA 683 [1991]; Guevarra v. Court of Appeals, 157 SCRA 32 [1998]).
Petitioner had only five days from receipt of the decision of the Municipal Circuit
Trial Court or until June 5, 1994 to perfect his appeal. While he timely filed his
Amended Notice of Appeal on June 2, 1994, he paid the amount of P510 representing
the appeal and legal research fees only on June 14, 1994. It is, therefore, evident that
petitioner belatedly paid said amount. x x x
The payment of the full amount of the docket fee is an indispensable step for the
perfection of an appeal (Dorego v. Perez, 22 SCRA 8 [1968]; Bello v. Fernandez, 4
SCRA 135 [1962]). In both original and appellate case, the court acquires jurisdiction
over the case only upon the payment of the prescribed docket fees as held in Acda v.
Minister of Labor, 119 SCRA 306 (1982). The requirement of an appeal fee is by no
means a mere technicality of law or procedure. It is an essential requirement without
which the decision appealed from would become final and executory as if no appeal
was filed at all. The right to appeal is merely a statutory privilege and may be
exercised only in the manner prescribed by, and in accordance with, the provision of
the law.
[13]

Invoking Enojas, Jr. v. Gacott, Jr.,
[14]
petitioner insists on a liberal interpretation of the rules
of procedure. A reading, however, of the Enojas case shows that petitioner had taken the ruling
therein out of context. In the said case, the Court found gross ignorance of the law on the part of
the respondent judge in not applying a liberal interpretation of the rules of procedure in election
cases as enunciated in Pahilan v. Tabalba, et al.
[15]
The Court explained in Enojas that
the Pahilan case should have been applied by the judge because it was the prevailing doctrine at
the time he rendered the assailed decision.
[16]
It bears stressing, however, that nowhere in the said
case did the Court imply that errors in the payment of filing fees can still be permitted. To
repeat, as early as March 25, 1997, we emphasized in the Loyola case that our decision therein,
as well as in Pahilan v. Tabalba, et al., and Gatchalian v. Court of Appeals, et al.,
[17]
would no
longer provide any excuse for shortcomings in the payment of filing fees. Thus, we ruled: these
cases now bar any claim of good faith, excusable negligence or mistake in any failure to pay the
full amount of filing fees in election cases which may be filed after the promulgation of this
decision.
[18]

In view of the foregoing, the Court finds that no grave abuse of discretion was committed by
respondent COMELEC in dismissing petitioners appeal for failure to pay the appeal fee within
the reglementary period and in denying his motion for reconsideration.
WHEREFORE, the instant Petition is DISMISSED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.
Sandoval-Gutierrez, J., on leave.



[1]
First Division, composed of Commissioners Julio F. Desamito (Presiding Commissioner), Luzviminda G.
Tancangco and Rufino S. Javier.
[2]
Judge Aida Rangel Roque.
[3]
En Banc.
[4]
Rollo, pp. 57-58.
[5]
Rollo, p. 41.
[6]
Section 3. 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 x x x.
[7]
Section 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 correct appeal fee;
x x x x x x x x x
[8]
G.R. No. 139853, September 5, 2000.
[9]
270 SCRA 404 [1997].
[10]
274 SCRA 503 [1997].
[11]
Miranda, supra, p. 509.
[12]
245 SCRA 702 [1995].
[13]
Id., 705-706.
[14]
322 SCRA 272 [2000].
[15]
230 SCRA 205 [1994].
[16]
Enojas, supra, p. 281.
[17]
245 SCRA 208 [1995].
[18]
Loyola, supra, p. 412.









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Republic of the Philippines
SUPREME COURT
Baguio City
EN BANC
G.R. Nos. 189431 & 191120 April 7, 2010
MAYOR QUINTIN B. SALUDAGA, Petitioner,
vs.
COMMISSION ON ELECTIONS AND ARTEMIO BALAG, Respondents.
D E C I S I O N
VILLARAMA, JR., J .:
The two (2) consolidated petitions for certiorari and prohibition before us arose from the election protest filed by respondent
Artemio Balag against petitioner Quintin B. Saludaga which was docketed as EP Case No. A-88 before the Regional Trial Court
(RTC) of Allen, Northern Samar, Branch 23.
The Petition
1
for Certiorari and Prohibition in G.R. No. 189431 seeks to nullify the September 4, 2009 Order
2
of the Second
Division of the Commission on Elections (COMELEC) in EAC No. A-34-2008 granting respondents Motion for Execution Pending
Motion for Reconsideration.
3

On the other hand, the Ad Cautelam Petition for Certiorari and Prohibition
4
in G.R. No. 191120 assails the January 20, 2010
Resolution
5
of the COMELEC en banc which (1) granted respondents Manifestation and Motion to Dismiss;
6
(2) denied
petitioners Verified Motion for Reconsideration
7
of the August 12, 2009 Resolution
8
of the COMELEC, Second Division; and (3)
denied petitioners Extremely Urgent Motion for Reconsideration
9
of the September 4, 2009 Order of the COMELEC, Second
Division.
The facts are as follows.
Petitioner Quintin B. Saludaga and respondent Artemio Balag were candidates for Mayor of Lavezares, Northern Samar in the
May 14, 2007 elections. On May 16, 2007, the Municipal Board of Canvassers proclaimed Saludaga as the duly elected Mayor
with 5,913 votes. He won by a margin of 635 votes over Balag who obtained 5,278 votes.
On May 25, 2007, Balag filed an election protest against Saludaga, docketed as EP Case No. A-88 before the RTC of Allen,
Northern Samar, Branch 23. Balag contested the results of the election in 18 precincts, essentially on grounds of massive
terrorism and misappreciation of ballots. Saludaga, too, filed a counter-protest disputing the election results in nine (9) precincts
on alleged irregularities and fraud committed by the Board of Election Inspectors therein and for misappreciation of ballots.
In a Decision
10
dated March 12, 2008, the RTC declared Balag as the winning mayoralty candidate of Lavezares, Northern
Samar with 5,251 votes, 71 votes more than Saludagas 5,180 votes. The trial court invalidated 733 of Saludagas ballots: 698 of
which were found to have been written by only one (1) person; 25, written by two (2) persons; while 10 were considered marked.
Against Balag, the court discounted 27 marked ballots.
On March 26, 2008, Saludaga appealed the RTC Decision to the COMELEC. In the meantime, Balag moved for execution
pending appeal, but the motion was denied in an Order
11
dated March 31, 2008. The trial court found no special reason to
warrant execution pending appeal, opining that Balags victory in the polls had not been clearly established.
On August 12, 2009, the COMELEC, Second Division, affirmed with modification the Decision of the RTC.
12
It found that Balag
won as Mayor of Lavezares, Northern Samar, by 127 votes with 5,276 votes compared to Saludagas 5,149 votes. Balag again
promptly moved for execution and filed a Motion for Execution Pending Motion for Reconsideration on August 13,
2009.
13
Saludaga, for his part, filed on August 17, 2009 a Verified Motion for Reconsideration of the August 12, 2009 COMELEC
Resolution. On August 18, 2009, the Second Division directed Saludaga to file his Comment within five (5) days from notice. The
latter complied therewith on September 1, 2009.
On September 4, 2009, the Second Division of COMELEC issued the first assailed Order,
14
signed solely by Presiding
Commissioner Nicodemo T. Ferrer, granting Balags Motion for Execution Pending Motion for Reconsideration. The order
directed the Second Division clerk of court to issue a writ of execution ordering Saludaga to cease and desist from discharging
the powers and duties of Mayor of Lavezares, Northern Samar and to relinquish said office in favor of Balag. The Order cited the
briefness of the remaining term for Mayor as a good reason for immediate execution.
Aggrieved, Saludaga filed an Extremely Urgent Motion for Reconsideration with the COMELEC en banc on September 8, 2009.
Later, on September 28, 2009, Saludaga also filed a Petition for Certiorari with this Court, docketed as G.R. No. 189431,
challenging the September 4, 2009 Order of the COMELEC, Second Division. Thus, on October 28, 2009, Balag filed a
Manifestation and Motion to Dismiss with the COMELEC en banc contending that Saludaga engaged in forum shopping. Balag in
the meantime had taken his oath and assumed the post of Mayor of Lavezares, Northern Samar.
While the petition in G.R. No. 189431 was pending, the COMELEC en banc issued the assailed Resolution dated January 20,
2010 denying reconsideration to both the September 4, 2009 Order and August 12, 2009 Resolution of the Second Division, and
granting Balags motion to dismiss. The COMELEC en banc based its denials solely on a finding that Saludaga committed forum
shopping when he filed a motion for reconsideration with the Second Division and a petition for certiorari in the Supreme Court,
both to question the Order dated September 4, 2009.
Hence, the Ad Cautelam Petition for Certiorari and Prohibition in G.R. No. 191120.
On March 9, 2010, we issued a Resolution
15
consolidating the petition in G.R. No. 191120 with the earlier filed petition in G.R.
No. 189431.
Petitioner Saludaga poses the following issues for our determination:
In G.R. No. 189431
WHETHER OR NOT THE PUBLIC RESPONDENT COMELEC SECOND DIVISION COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION IN ISSUING THE QUESTIONED ORDER ON
SEPTEMBER 4, 2009.
16

In G.R. No. 191120
WHETHER OR NOT THE PUBLIC RESPONDENT COMELEC SECOND DIVISION & EN BANC COMMITTED GRAVE ABUSE
OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION IN ISSUING THE QUESTIONED
RESOLUTIONS ON AUGUST 12, 2009 AND JANUARY 20, 2010.
17

The Arguments of the Parties
G.R. No. 189431
Petitioner charges the Second Division of COMELEC with grave abuse of discretion for allowing execution during the pendency
of the motion for reconsideration of its August 12, 2009 Resolution despite the clear provisions of Section 2,
18
Rule 19 of
the COMELEC Rules of Procedure. In addition, petitioner faults the Second Division for not certifying and elevating the records of
the case to the Commission en banc after the lapse of 10 days from the filing of the motion for execution as provided in Item
6(b)
19
of COMELEC Resolution No. 8654.
20
Saludaga further points out that the September 4, 2009 Order was signed by
Presiding Commissioner Ferrer alone, contrary to the Second Divisions duty as a collegial body. Petitioner maintains that there
are no superior circumstances to justify execution during the pendency of the motion for reconsideration especially since
respondent had not clearly established his victory in the polls.
To refute the allegation as regards his victory, respondent Balag invokes the March 12, 2008 RTC Decision and August 12, 2009
COMELEC Resolution, both of which affirmed his win over petitioner. This, along with the fact that only a short period remains of
the term for Mayor, justifies execution pending resolution of the motion for reconsideration, respondent reasons.
Respondent also calls the Courts attention to various suspension orders against petitioner relative to pending criminal cases
against him before the Sandiganbayan and the Department of Justice. Respondent believes that these will prevent petitioner
from effectively discharging the duties of a mayor. He further accuses petitioner of forum shopping for allegedly assailing before
this Court the Second Divisions August 12, 2009 Resolution and September 4, 2009 Order, which are also the subjects of his
motions for reconsideration before the COMELEC en banc.
G.R. No. 191120
In this Petition for Certiorari and Prohibition, petitioner ascribes grave abuse of discretion to both the Second Division of
COMELEC and the COMELEC en banc for declaring respondent as the winning Mayor of Lavezares, Northern Samar. Petitioner
makes issue of the discrepancy in the number of votes credited to each mayoralty candidate in four (4)
21
precincts by the RTC,
which used the certificates of canvass, and the Second Division of the COMELEC, which based its tally on the election returns.
Petitioner insists that he did not engage in forum shopping to warrant the COMELEC en bancs outright denial of his Verified
Motion for Reconsideration of the August 12, 2009 Resolution and his Extremely Urgent Motion for Reconsideration of the
September 4, 2009 Order. According to petitioner, the only action he initiated to question the September 4, 2009 Order is the
special civil action for certiorari in G.R. No. 189431, his motion for reconsideration of the same Order before the COMELEC
being a mere incident of the election protest filed by respondent. Neither is there similarity in the subject matter involved and the
parties concerned.
Also, petitioner contests the January 20, 2010 Resolution of the COMELEC en banc insofar as it granted respondents
Manifestation and Motion to Dismiss which is a prohibited pleading under Rule 13
22
of the Comelec Rules of Procedure.
I. The Courts Ruling in G.R. No. 189431
A. Whether petitioner violated the rule on forum shopping
Before we can proceed with a discussion of the contentious issues posed in these petitions, we must first determine whether
petitioner indeed engaged in forum shopping.
Forum shopping is the institution of two (2) or more suits in different courts, either simultaneously or successively, in order to ask
the courts to rule on the same or related causes and/or to grant the same or substantially the same reliefs.
23
There is forum
shopping when as a result of an adverse decision in one (1) forum, or in anticipation thereof, a party seeks favorable opinion in
another forum through means other than appeal or certiorari.
24

Under paragraph 2, Section 5,
25
Rule 7 of the 1997 Rules of Civil Procedure, as amended, if the acts of the party or his counsel
clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal with prejudice and shall
constitute direct contempt, as well as a cause for administrative sanctions.
In determining whether a party violated the rule against forum shopping, the most important factor to ask is whether the elements
of litis pendencia are present, or whether a final judgment in one case will amount to res judicata in another.
26
lawphil .net
For the principle of res judicata to apply, the following elements must be present: (1) the judgment sought to bar the new action
must be final; (2) the decision must have been rendered by a court having jurisdiction over the subject matter and the parties; (3)
the disposition of the case must be a judgment on the merits; and (4) there must be as between the first and second actions,
identity of parties, subject matter, and cause of action.
27

In the present case, the second element is wanting.
Under Section 5(c), Rule 3 of the Comelec Rules of Procedure, any motion to reconsider a decision, resolution, order or ruling of
a division shall be resolved by the Commission en banc except motions on interlocutory orders of the division which shall be
resolved by the division which issued the order.
When the COMELEC, Second Division issued the September 4, 2009 Order, the appeal of respondents election protest was still
pending resolution by the COMELEC en banc. Clearly, the September 4, 2009 Order of the COMELEC, Second Division granting
execution pending resolution of the motion for reconsideration is in the nature of an interlocutory order one which does not
dispose of the case completely but leaves something to be decided upon.
28
Therefore, in accordance with the Comelec Rules of
Procedure, any motion to reconsider such interlocutory order of the division shall be resolved by the division which issued it.
Otherwise stated, the Extremely Urgent Motion for Reconsideration filed by petitioner to question the September 4, 2009 Order
issued by the COMELEC, Second Division had to be resolved also by the Second Division, not by the COMELEC en banc.
Since the COMELEC en banc had no jurisdiction over petitioners Extremely Urgent Motion for Reconsideration, its January 20,
2010 Resolution does not amount to res judicata in relation to the present petition.
Notably, in the certificate of forum shopping
29
of Saludagas Petition before us, he disclosed that an Extremely Urgent Motion for
Reconsideration of the September 4, 2009 Order is also pending before the COMELEC en banc. Even then, the mere filing of a
separate case, as in the original action for certiorari and prohibition filed by petitioner in G.R. No. 189431, after filing a responsive
pleading in the other case, does not necessarily constitute forum shopping. To reiterate, there is forum shopping when as a result
of an adverse decision in one (1) forum, or in anticipation thereof, a party seeks favorable opinion in another forum through
means other than appeal or certiorari. Clearly, there is no forum shopping in this case to warrant an outright dismissal of the
petition in G.R. No. 189431.
B. Whether the September 4, 2009 Order granting execution pending resolution of the motion for reconsideration is void
We shall now turn to the main issue raised in the petition in G.R. No. 189431. Did the Second Division of COMELEC commit
grave abuse of discretion amounting to lack of or in excess of jurisdiction in granting respondents motion for execution pending
resolution of the motion for reconsideration?
Under Section 2, Rule 19 of the Comelec Rules of Procedure, a party may file a motion to reconsider a decision, resolution,
order, or ruling of a division within five (5) days from the promulgation thereof. Such motion, if not pro forma, suspends the
execution or implementation of the decision, resolution, order or ruling.
The Comelec Rules of Procedure does not contain an express provision on execution pending appeal or resolution of the motion
for reconsideration. In the past, this hiatus was conveniently addressed by Section 1, Rule 41 of said Rules, thus:
SECTION 1. The Rules of Court. - In the absence of any applicable provision in these Rules, the pertinent provisions of the Rules
of Court in the Philippines shall be applicable by analogy or in suppletory character and effect.
Pertinently, Section 2 (a), Rule 39 of the 1997 Rules of Civil Procedure, as amended, provides:
SEC. 2. Discretionary execution. -
(a) Execution of a judgment or final order pending appeal. - On motion of the prevailing party with notice to the adverse party filed
in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as
the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final
order even before the expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing.
On May 3, 2007, the Supreme Court promulgated A.M. No. 07-4-15-SC or the Rules of Procedure in Election Contests Before
the Courts Involving Elective Municipal and Barangay Officials. Section 11(a), Rule 14 of said rules sets the criteria for execution
pending appeal as follows:
SEC. 11. Execution pending appeal. - On motion of the prevailing party with notice to the adverse party, the court, while still in
possession of the original records, may, at its discretion, order the execution of the decision in an election contest before the
expiration of the period to appeal, subject to the following rules:
(a) There must be a motion by the prevailing party with three-day notice to the adverse party. Execution pending appeal shall not
issue without prior notice and hearing. There must be good reasons for the execution pending appeal. The court, in a special
order, must state the good or special reasons justifying the execution pending appeal. Such reasons must:
(1) constitute superior circumstances demanding urgency that will outweigh the injury or damage should the
losing party secure a reversal of the judgment on appeal; and
(2) be manifest, in the decision sought to be executed, that the defeat of the protestee or the victory of the
protestant has been clearly established.
By analogy, this standard is also applicable in the grant of execution pending resolution of the motion for reconsideration of a
decision, resolution, order or ruling of a division of the COMELEC.
Petitioner assails the September 4, 2009 Order for three (3) reasons. First, the Second Division of the COMELEC failed to certify
and elevate the records of the case upon the lapse of ten (10) days in accordance with Item 6(b) ofComelec Resolution No.
8654. Second, the September 4, 2009 Order was signed by the Presiding Commissioner alone. Lastly, respondents Motion for
Execution Pending Motion for Reconsideration does not satisfy the criteria in A.M. No. 07-4-15-SC.
We shall tackle each objection separately.
On August 4, 2009, the COMELEC promulgated COMELEC Resolution No. 8654 for the purpose of adopting rules on the
payment of COMELEC appeal fees and on the disposition of motions for reconsideration of decisions, resolutions and orders on
election protest cases, appeal cases and special relief cases of a division to conform to our ruling in Aguilar v. COMELEC and
Insoy.
30

Item 6 of Comelec Resolution No. 8654 provides:
6. If a motion for the execution of the decision or resolution of the Division is filed prior to the filing of a Motion for
Reconsideration, or within two days after the filing of the Motion for Reconsideration and the case was not yet certified to or
elevated to the Commission en banc, the Division may, at its own discretion:
a. Certify and elevate the case, together with the Motion for Execution as part of the records of the case, to the
Commission En Banc within the two day period as prescribed in Section 5, Rule 19 of the Rules of Court.
b. Stay for a period of not more than ten (10) days from the filing of the Motion for Execution, the elevation of
the case to the Commission En Banc, in order to resolve said Motion for Execution. Upon the expiration of the
ten-day period, the Division shall immediately certify and elevate the case, together with all the records, to the
Commission En Banc for appropriate action. (Emphasis supplied).
Prior to the filing of a motion for reconsideration of a decision or resolution issued by a division of the COMELEC or during the
pendency of such motion for reconsideration but before the case is certified or elevated to the COMELEC en banc, the motion for
execution may be acted upon by the division that issued the decision or resolution. Under Item 6(a), a division of the COMELEC
may choose to elevate both the main action and the motion for execution to the COMELEC en banc. Item 6(b), on the other
hand, contemplates a situation where the division decides to rule on the motion for the execution of its decision or resolution. In
the latter, the division may defer the elevation of the case to the Commission en banc in order to resolve the motion. After the
lapse of ten (10) days from the filing of the motion for execution, however, the division shall immediately certify and elevate the
case, together with all the records including the motion for execution to the Commission en banc for appropriate action. This
describes the second scenario when the COMELEC en banc may rule on a motion for execution pending the resolution of the
motion for reconsideration of a decision or resolution of a division.
In the case at hand, respondent filed a motion for execution of the Resolution dated August 12, 2009 on August 13, 2009. Thus,
the Second Division of COMELEC had only until August 23, 2009 to resolve the same. In the Order dated September 4, 2009,
Presiding Commissioner Ferrer, acting for the Second Division, justifies the delay in the resolution of the motion for execution by
saying that it was in the interest of fair play that he required petitioner to file a comment. The Presiding Commissioner posits that
the 10-day period is reckoned from the day the Second Division received petitioners comment on September 1, 2009.
We cannot agree.
In accordance with the express provision of the law, the ten (10) days within which a division of the COMELEC may suspend
elevating the case to the Commission en banc is to be counted from the filing of the motion for execution. The language of the
law is clear, plain and too simple to invite a different interpretation. Moreover, nowhere inCOMELEC Resolution No. 8654 does it
say that a comment is required, much less, indispensable before the division may rule on a motion for execution.
After the lapse of the 10-day period, the only power (and duty) that a division has is to certify and elevate the case, together with
all the records, to the Commission en banc, for appropriate action. Hence, upon the lapse of the 10-day period or after August
23, 2009, the Second Division no longer had jurisdiction to rule on respondents motion for execution. Having done so, the
September 4, 2009 Order is void for having been issued by the COMELEC, Second Division without jurisdiction.
Indeed, even if said Order was promulgated within 10 days from the filing of the motion for execution, it would still be void
because Presiding Commissioner Ferrer alone signed it.
To justify the Presiding Commissioners action, public respondent COMELEC invokes Section 6 (d), Rule 2 of theComelec Rules
of Procedure which provides,
SEC. 6. Powers and Duties of the Presiding Commissioner.-The powers and duties of the Presiding Commissioner of a Division
when discharging its functions in cases pending before the Division shall be as follows:
x x x x
(d) To sign interlocutory resolutions, orders or rulings and temporary restraining orders in cases already assigned to the Division;
x x x x.
However, this provision has been qualified by the amendment introduced by the Commission en banc as reflected in the
Excerpts
31
of its regular en banc meeting held on December 5, 1996. The relevant portion of the Excerpts reads:
3) The ponente in the preceding two paragraphs shall prepare interlocutory orders for signature of the Chairman or Division
Chairman. Orders of substance, however, shall be referred to the Division/En Banc for clearance. (Emphasis supplied.)
An order resolving a motion for execution is one (1) such order of substance that requires more than the lone imprimatur of the
Division Chairman. This is so because execution pending resolution of the motion for reconsideration may issue only upon good
or special reasons contained in a special order. To reiterate, such reasons must: (1) constitute superior circumstances
demanding urgency that will outweigh the injury or damage should the losing party secure a reversal of the judgment on appeal;
and (2) be manifest, in the decision sought to be executed, that the defeat of the protestee or the victory of the protestant had
been clearly established. These stringent requirements demand more than a cursory evaluation of a motion for execution
pending reconsideration. Hence, the need to refer such order for clearance by the Division or the COMELEC en banc, as the
case may be.
This amendment is reflected in Item 6, COMELEC Resolution No. 8654 which identifies the division as the one (1) in possession
of the discretion to either: (1) certify and elevate the case, together with the motion for execution, to the Commission en banc
within the two-day period prescribed in Section 5,
32
Rule 19 of the Comelec Rules of Procedure, or (2) stay, for a period of not
more than ten (10) days from the filing of a motion for execution, the elevation of the case to the Commission en banc, in order to
resolve said motion. Alternatively, upon the expiration of the 10-day period, the decision may immediately certify and elevate the
case, together with all the records, to the Commission en banc for appropriate action.
The discretion to allow execution pending reconsideration belongs to the division that rendered the assailed decision, order or
resolution, or the COMELEC en banc, as the case may be not to the Presiding Commissioner. To be sure, a writ of execution
pending resolution of the motion for reconsideration of a decision of the division is not granted as a matter of right such that its
issuance becomes a ministerial duty that may be dispensed even just by the Presiding Commissioner.
II. The Courts Ruling in G.R. No. 191120
Prescinding from our finding that petitioner did not commit forum shopping, the COMELEC en banc erred in denying outright
petitioners Verified Motion for Reconsideration of the August 12, 2009 Resolution.
Moreover, we agree with petitioner that the COMELEC en banc also erred in granting the Manifestation and Motion filed by
respondent. Under Section 1(a),
33
Rule 13 of the Comelec Rules of Procedure, a motion to dismiss is among the pleadings which
are not allowed in the proceedings before the Commission.
Finally, in his Verified Motion for Reconsideration, petitioner raised factual issues, specifically, on the appreciation of votes and
the discrepancy in the number of votes credited to each candidate in four (4) precincts. However, the appreciation of contested
ballots and election documents involves a question of fact best left to the determination of the COMELEC, a specialized agency
tasked with the supervision of elections all over the country. After all, it is the constitutional commission vested with the exclusive
original jurisdiction over election contests involving regional, provincial and city officials, as well as appellate jurisdiction over
election protests involving elective municipal and barangay officials.
34
Hence, we deem it proper to remand this case to the
COMELEC en banc, in order that it may resolve petitioners motion for reconsideration of the Resolution dated August 12, 2009
on the merits.
WHEREFORE, the petition in G.R. No. 189431 is GRANTED. The September 4, 2009 Order of the COMELEC, Second Division,
in EAC No. A-34-2008 is ANNULLED.
The petition in G.R. No. 191120 is PARTLY GRANTED. The January 20, 2010 Resolution of the COMELEC en banc in EAC No.
A-34-2008 is SET ASIDE insofar as it granted the Manifestation and Motion to Dismiss filed by respondent Artemio H. Balag.
Respondent Artemio H. Balag is ordered to CEASE AND DESIST from performing the functions of Mayor of Lavezares, Northern
Samar, effective immediately. Petitioner Quintin B. Saludaga is REINSTATED to the position of Mayor of Lavezares, Northern
Samar pending final determination by the COMELEC en banc of the merits of petitioners Verified Motion for Reconsideration of
the August 12, 2009 Resolution of the COMELEC, Second Division.
Let this case be REMANDED to the COMELEC en banc for adjudication on the merits of petitioners Verified Motion for
Reconsideration of the August 12, 2009 Resolution of the COMELEC, Second Division.
This Decision is IMMEDIATELY EXECUTORY.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
ANTONIO T. CARPIO
Associate Justice
RENATO C. CORONA
Associate Justice
CONCHITA CARPIO MORALES
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
LUCAS P. BERSAMIN
Associate Justice
MARIANO C. DEL CASTILLO
Associate Justice
(On official business)
ROBERTO A. ABAD
*

Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
JOSE CATRAL MENDOZA
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the above Decision had been
reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
*
On official business.
1
Rollo (G.R. No. 189431), pp. 3-47.
2
Id. at 48-51.
3
Id. at 246-257.
4
Rollo (G.R. No. 191120), pp. 17-44.
5
Id. at 155-166.
6
Id. at 155. (Cited in the COMELEC Resolution dated January 20, 2010.)
7
Id. at 132-152.
8
Id. at 48-131.
9
Supra, note 6.
10
Rollo (G.R. No. 189431), pp. 61-101.
11
Id. at 190-192.
12
Id. at 102-105.
13
Id. at 246-257.
14
Id. at 48-51.
15
Rollo (G.R. No. 191120), p. 169.
16
Rollo (G.R. No. 189431), p. 30.
17
Rollo (G.R. No. 191120), p. 35.
18
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 (5) days from the promulgation thereof. Such motion, if not pro-forma,
suspends the execution or implementation of the decision, resolution, order or ruling. (Emphasis supplied.)
19
6. If a motion for the execution of the decision or resolution of the Division is filed prior to the filing of a Motion
for Reconsideration, or within two days after the filing of the Motion for Reconsideration and the case was not yet
certified to or elevated to the Commission en banc, the Division may, at its own discretion:
xxx
(b) Stay for a period of not more than ten (10) days from the filing of the Motion for Execution, the
elevation of the case to the Commission En Banc, in order to resolve said Motion for Execution. Upon the
expiration of the ten-day period, the Division shall immediately certify and elevate the case, together with
all the records, to the Commission En Banc for appropriate action.
20
in the matter of adopting rules of procedure on the payment of the comelec appeal fees and on the disposition
of motions for reconsideration of decisions, resolutions and orders on election protest cases (epc), election
appeal cases (eac) and special relief cases (spr) of a division of the commission on elections to conform with the
supreme court decision in jerry b. aguilar v. commission on elections and romulo r. insoy (g.r. no. 185140),
promulgated on june 30, 2009.
21
Precincts 26A [E.R. No. 5400942], 37A [5401000], 68A/B [E.R. No. 5400959] and 71A/B [E.R. No. 5400995].
22
Section 1. What Pleadings are not Allowed.-The following pleadings are not allowed:
(a) motion to dismiss;
xxxx
(g) supplemental pleadings in special actions and in special cases.
23
Young v. Keng Seng, G.R. No. 143464, March 5, 2003, 398 SCRA 629, 636-637.
24
National Electrification Administration (NEA) v. Buenaventura, G.R. No. 132453, February 14, 2008, 545 SCRA
277, 288.
25
SEC. 5. Certification against forum shopping.- The plaintiff or principal party shall certify under oath in the
complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and
simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving
the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other
action or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the
present status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed
or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint
or initiatory pleading has been filed.
Failure to comply with the foregoing requirements shall not be curable by mere amendment of the
complaint or other initiatory pleading but shall be cause for the dismissal of the case without prejudice,
unless otherwise provided, upon motion and after hearing. The submission of a false certification or non-
compliance with any of the undertakings therein shall constitute indirect contempt of court, without
prejudice to the corresponding administrative and criminal actions. If the acts of the party or his counsel
clearly constitute willful and deliberate forum shopping, the same shall be ground for summary dismissal
with prejudice and shall constitute direct contempt, as well as a cause for administrative sanctions.
(Emphasis supplied.)
26
Young v. Keng Seng, supra at 638.
27
Republic v. Yu, G.R. No. 157557, March 10, 2006, 484 SCRA 416, 421.
28
City of Naga v. Asuncion, G.R. No. 174042, July 9, 2008, 557 SCRA 528, 541.
29
Rollo (G.R. No. 189431), p. 46.
30
G.R. No. 185140, June 30, 2009, 591 SCRA 491.
31
EXCERPTS FROM THE MINUTES OF THE REGULAR EN BANC MEETING OF THE COMMISSION ON
ELECTIONS HELD ON DECEMBER 5, 1996.
Present:
Chairman Bernardo P. Pardo
Commissioner Regalado E. Maambong
Commissioner Julio F. Desamito
Commissioner Teresita Dy-Liacco Flores
Commissioner Japal M. Guiani
x x x x x x x x x
In the matter of the Memorandum dated November 27, 1996 of Commissioner Teresita Dy-Liacco Flores
re certain amendments to the Commissioners Rule of Procedure,
RESOLVED TO ADOPT THE FOLLOWING AMENDMENTS:
1) All cases within the original jurisdiction of the Commission En Banc, if not yet assigned or
consulted upon, shall be assigned to a ponente whose name shall be kept confidential;
2) All incoming cases on appeal from rulings of courts of primary jurisdiction shall be raffled by the
Chairman three (3) at a time so that each commissioner will have an involvement;
3) The ponente in the preceding two paragraphs shall prepare interlocutory orders for signature of
the Chairman or Division Chairman. Orders of substance, however, shall be referred to the
Division/En Banc for clearance.
4) Certiorari petitions shall be referred to the Chairman, who shall have the same raffled for study
and recommendation to the Commission en banc;
5) Cases related to a previous case may be assigned to the same ponente;
6) There shall be equitable distribution of cases.
Accordingly, the Election Contests Adjudication Department shall incorporate the foregoing amendments
in the Rules of Procedure of the Commission.
RESOLVED, moreover, to temporarily suspend the implementation of the Rules of Procedure until the
same is revised, per the forgoing amendments or the caseload substantially reduced.
Let the election Contests Adjudication Department, and the Office of the Clerk of the Commission,
implement this resolution.
x x x x x x x x x
This is to certify that the foregoing is a true and correct excerpt from the minutes of the Special en
banc meeting of the Commission on Elections held on December 5, 1996.
(Sgd.) MA. JOSEFINA E. DELA CRUZ
Officer-in-Charge
Office of the COMELEC Secretary
32
Sec. 5. How Motion for Reconsideration Disposed Of. Upon the filing of a motion to reconsider a decision,
resolution, order or ruling of a Division, the Clerk of Court concerned shall, within twenty-four (24) hours from the
filing thereof, notify the Presiding Commissioner. The latter shall within two (2) days thereafter certify the case to
the Commission en banc.
33
Supra, note 22.
34
Flauta, Jr. v. Commission on Elections, G.R. No. 184586, July 22, 2009, 593 SCRA 504, 521.

The Lawphil Project - Arellano Law Foundation



EN BANC

MICHAEL L. SAN MIGUEL,
Petitioner,



G.R. No. 188240

Present:

PUNO, C.J.,
- versus -



COMMISSION ON ELECTIONS
and CHRISTOPHER V. AGUILAR,
Respondents.

CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD, and
VILLARAMA, JR., JJ.

Promulgated:

December 23, 2009
x-----------------------------------------------------------------------------------------x


D E C I S I O N

CARPIO MORALES, J.:

Challenged via Certiorari and Prohibition are the Resolutions of February 25,
2009 and May 25, 2009 of public respondent Commission on Elections (Comelec)
in SPR (Brgy) No. 106-2008 directing the issuance of a writ of execution pendente
lite and denying the motion for reconsideration, respectively.
Petitioner Michael San Miguel and private respondent Christopher Aguilar
vied in the October 29, 2007 elections for the position of Punong Barangay of
Barangay Marcelo Green in Paraaque City where they obtained 2,969 and 2,867
votes, respectively.

After petitioners proclamation, private respondent filed an election protest
docketed as E.P. Case No. 07-4 before the Metropolitan Trial Court of Paraaque
City which, after recount and revision of ballots from the contested precincts,
ruled that private respondent garnered 2,898 votes or 12 votes more than the
2,886 votes received by petitioner and accordingly annulled petitioners
proclamation, by Decision of May 9, 2008.

Petitioner filed with the trial court a Notice of Appeal to the Comelec,
docketed eventually as EAC No. 208-2008. The appeal is still pending.

Meanwhile, three days after the promulgation of the trial courts Decision
or on May 12, 2009, private respondent filed an Urgent Motion for Execution
Pending Appeal (Urgent Motion) which was received by petitioner on May 13,
2008 with notice of a May 14, 2008 hearing. The trial court calendared the
hearing, however, on May 19, 2008, and eventually denied the Urgent Motion by
Order of May 22, 2008.
[1]


Private respondent elevated the matter on certiorari to the Comelec which
reversed the trial courts May 22, 2008 Order, by the first assailed Resolution the
dispositive portion of which reads:

WHEREFORE, premises considered, the instant petition for certiorari is
hereby GRANTED. Accordingly, the assailed Order of May 22, 2008 in Election Protest
Case No. 07-4 (Christopher Aguilar v. Michael San Miguel) of
the Metropolitan Trial Court of Paraaque City is hereby SET ASIDE. Let a Writ of
Execution pending appeal be issued in accordance with Section 11(b), Rule 14 of the
Rules of Procedure in Election Contests to implement the May 9, 2008 Decision of the
respondent Judge in the above-captioned case, which declared Protestant-CHRISTOPHER
V. AGUILAR as the duly elected Punong Barangay of Marcelo Green, Paraaque City and
annulled the proclamation and oath-taking of Protestee-MICHAEL L. SAN MIGUEL.

SO ORDERED.
[2]
(emphasis and italics in the original),

and denied reconsideration thereof by the second assailed Resolution.

Hence, the present petition, petitioner averring that the Comelec gravely
abused its discretion by blatantly misapplying Section 11, Rule 14 of the Rules of
Procedure in Election Contests before the Courts involving Elective Municipal and
Barangay Officials
[3]
(Rules of Procedure) which reads:

Sec. 11. Execution Pending Appeal On motion of the prevailing party with
notice to the adverse party, the court, while still in possession of the original
records, may, at its discretion, order the execution of the decision in an election
contest before the expiration of the period to appeal, subject to the following rules:

(a) There must be a motion by the prevailing party with three-day notice to the
adverse party. Execution pending appeal shall not issue without prior notice
and hearing. There must be good reasons for the execution pending appeal.
The court, in a special order, must state the good or special reasons justifying
the execution pending appeal. Such reasons must:

(1) constitute superior circumstances demanding urgency that will
outweigh the injury or damage should the losing party secure a reversal of
the judgment on appeal; and

(2) be manifest, in the decision sought to be executed, that the defeat of the
protestee or the victory of the protestant has been clearly established.

(b) If the court grants an execution pending appeal, an aggrieved party shall have
twenty working days from notice of the special order within which to secure a
restraining order or status quo order from the
Supreme Court or the Commission on Elections. The corresponding
writ of execution shall issue after twenty days, if no restraining order or status
quo order is issued. During such period, the writ of execution pending appeal
shall be stayed. (emphasis, italics and underscoring supplied)

In not granting a special order to execute its decision pending appeal, the
trial court explained that it could no longer order execution since the above-
quoted rule allows the issuance of a special order only within the five-day period
to appeal which, at that time, had already expired.

Echoing that of the trial court, petitioner posits that the Rules of Procedure
expressly provide that the special order should be issued before the expiration of
the five-day period to file a notice of appeal.

By petitioners theory, the filing of the motion, the three-day notice to the
other party, the hearing on the motion, and the issuance of the order resolving
the motion should all take place within five days.

The petition lacks merit.

Evident from the usage of the word may, the language of the subject
provision denotes that it is merely directory, and not mandatory, for the trial
court to issue the special order before the expiration of the period to appeal. The
trial court may still thereafter resolve a motion for execution pending
appeal, provided: (i) the motion is filed within the five-day reglementary period;
and (ii) the special order is issued prior to the transmittal of the records to the
Comelec.

Both parties concede that the motion for execution pending appeal must
be filed within the five-day period to appeal. In the present case, the Urgent
Motion was filed well within the reglementary period.

Indeed, in one case,
[4]
the Court construed a similarly phrased provision
[5]
to
mean that the ruling on the motion for execution may issue after the period of
appeal, as long as the motion for execution pending appeal was filed before the
expiration of the time to appeal.

Keeping in mind that hurried justice is not always authentic
justice,
[6]
the permissive nature of the rule allows the trial court to apply the
same insofar as it is practicable, albeit the rigid compliance therewith is not
altogether impossible, such that a motion for execution pending appeal may
be filed at the latest on the second day after notice of the decision, and heard and
resolved at the latest on the fifth day after notice of the decision, in compliance
with the mandatory three-day notice rule, barring any intervening resetting or
non-working days.

It also appears that the prevailing party need not check first if the losing
party actually appealed the case before the prevailing party could file a motion for
executionpendente lite. The setting of the same period of five days for the filing
of a motion for execution pending appeal, similar to that for a notice of appeal,
allows the trial court to expediently rule on this incident, along with the notice of
appeal, before transmitting the records to the Comele, during which the trial
court shall have already lost jurisdiction to resolve pending incidents.

In other words, the special order directing the issuance of a writ of
execution pending appeal must be issued prior to the transmittal
[7]
of the records
to Electoral Contests Adjudication Department of the Comelec.
As interpreted by the Court in Pecson v. Commission on Elections,
[8]
the
same elements of possession of the records and non-lapse of the appeal period
are necessary for the trial courts exercise of its residual jurisdiction to issue a
special order. The writ of execution is a mere administrative medium of the
special order, and the writ itself cannot and does not assume a life of its own
independent from the special order on which it is based. Pecson explained that
the writ itself may issue after the transmittal of the records, upon cessation of the
20-working-day waiting or suspension period
[9]
without the other party having
secured a restraining or status quo order.

In the present case, the Comelec correctly found that the trial court gravely
abused its discretion when it motu proprio reset the hearing of the Urgent Motion
from May 14, 2008 to May 19, 2008, and used such circumstance in denying the
grant of a special order on the ground that it had lost its jurisdiction with the
lapse of the five-day period.

Indeed, the trial courts patent and gross abuse of discretion amounted to
an evasion of a positive duty or to a virtual refusal to perform a duty enjoined by
law. The whim is evident from the fact that if indeed the trial court really believed
that the five-day period was mandatory, it should have resolved the Urgent
Motion either way on the day it was set for hearing instead of rescheduling the
hearing.

Petitioners argument that the Comelec cannot direct the issuance of a writ
of execution since no special order was issued by the trial court is specious. It
begs the question and trivializes the remedy of certiorari available before the
Comelec, rendering the latter inutile in annulling or modifying the proceedings to
keep an inferior court within its jurisdiction and to relieve persons from arbitrary
acts, meaning acts which courts or judges have no power or authority in law to
perform.
[10]


Petitioner also alleges that the finding of private respondents electoral
victory was based on a faulty arithmetic computation by the trial court, to thus
negate the guideline in an execution pending appeal that the defeat of the
protestee or the victory of the protestant must have been clearly established.

The Comelec pointed out that the trial courts decision itself made clear
reference to the April 8, 2008 Order which formed part of the decision in arriving
at the computation of the respective votes garnered by the parties.

The Court finds no abuse of discretion, much less a grave one, on the part of
the Comelec when it found good and special reasons to justify the
execution pendente lite of the trial courts 419-page decision that laboriously
elucidated the reasons for its invalidation or validation of each ballot.
[11]
Absent
any grave abuse of discretion, the Court will not disturb the Comelecs finding
that the trial courts decision was rendered with due basis and substantiation on
the computation of the votes.

The present disposition is without prejudice, however, to the appeal
docketed as EAC No. 208-2008, which could fully ventilate the merits of the
parties claims and defenses that are evidentiary in nature, and to the other issues
raised by the parties which the Court finds unnecessary to resolve.






WHEREFORE, the petition is DISMISSED. The assailed Resolutions of the
Commission on Elections in SPR (Brgy) No. 106-2008 are AFFIRMED.

SO ORDERED.


CONCHITA CARPIO MORALES
Associate Justice



WE CONCUR:




REYNATO S. PUNO
Chief Justice





ANTONIO T. CARPIO
Associate Justice


RENATO C. CORONA
Associate Justice



PRESBITERO J. VELASCO, JR.
Associate Justice




TERESITA J. LEONARDO-DE CASTRO
Associate Justice



ANTONIO EDUARDO B. NACHURA
Associate Justice




ARTURO D. BRION
Associate Justice








DIOSDADO M. PERALTA
Associate Justice





LUCAS P. BERSAMIN
Associate Justice




MARIANO C. DEL CASTILLO
Associate Justice





ROBERTO A. ABAD
Associate Justice




MARTIN S. VILLARAMA, JR.
Associate Justice





CERTIFICATION


Pursuant to Section 13, Article VIII of the Constitution, I hereby certify that
the conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.


REYNATO S. PUNO
Chief Justice





[1]
Penned by Presiding Judge Ramsey Domingo G. Pichay (Branch 78).
[2]
Rollo, p. 67.
[3]
A.M. No. 07-4-15-SC (effective May 15, 2007).
[4]
Lindo v. Commission on Elections, G.R. No. 127311, June 19, 1997, 274 SCRA 511.
[5]
1964 RULES OF COURT, Rule 39, Sec. 2. This interpretation paved the way for the 1997 amendment
of the same rule on ordering execution pending appeal even before the expiration of the period to appeal,
among other amendments.
[6]
Supra note 4 at 519 citing Universal Far East Corp. v. CA, 216 Phil. 598, 603.
[7]
The rules provide a 15-day period from the filing of a notice of appeal within which to transmit the
records from the trial court to the Comelec (vide Rules of Procedure, supra note 3, Rule 14, Sec. 10).
[8]
G.R. No. 182865, December 24, 2008, 575 SCRA 634. Notably, both parties in Jecson received a copy
of the trial courts decision on November 26, 2007, yet the special order was issued only on December 3,
2006. The five-day period to appeal refers to the filing of the motion for execution pending appeal and not
to the insurance of the special order [rollo (G.R. No. 182865), p. 133].
[9]
RULES OF PROCEDURE, supra note 3, Rule 14, Sec. 11(b).
[10]
Ong v. People, G.R. No. 140904, October 9, 2000, 342 SCRA 372, 386.
[11]
Rollo, p. 103.
[Syllabus]
EN BANC
[G.R. No. 120193. March 6, 1996]
LUIS MALALUAN, petitioner, vs. COMMISSION ON ELECTIONS and
JOSEPH EVANGELISTA, respondents.
D E C I S I O N
HERMOSISIMA, JR., J .:
Novel is the situation created by the decision of the Commission on Elections which
declared the winner in an election contest and awarded damages, consisting of
attorneys fees, actual expenses for xerox copies, unearned salary and other
emoluments for the period, from March, 1994 to April, 1995, en masse denominated as
actual damages, notwithstanding the fact that the electoral controversy had become
moot and academic on account of the expiration of the term of office of the Municipal
Mayor of Kidapawan, North Cotabato.
Before us is a petition for certiorari and prohibition, with a prayer for the issuance of
a temporary restraining order and writ of preliminary injunction, seeking the review of
the decision en banc
[1]
of the Commission on Elections (COMELEC) denying the motion
for reconsideration of the decision
[2]
of its First Division,
[3]
which reversed the decision
[4]
of
the Regional Trial Court
[5]
in the election case
[6]
involving the herein parties. While the
Regional Trial Court had found petitioner Luis Malaluan to be the winner of the elections
for the position of Municipal Mayor of Kidapawan, North Cotabato, the COMELEC, on
the contrary, found private respondent Joseph Evangelista to be the rightful winner in
said elections.
Petitioner Luis Malaluan and private respondent Joseph Evangelista were both
mayoralty candidates in the Municipality of Kidapawan, North Cotabato, in the
Synchronized National and Local Elections held on May 11, 1992. Private respondent
Joseph Evangelista was proclaimed by the Municipal Board of Canvassers as the duly
elected Mayor for having garnered 10,498 votes as against petitioners 9,792
votes. Evangelista was, thus, said to have a winning margin of 706 votes. But, on May
22, 1992, petitioner filed an election protest with the Regional Trial Court contesting 64
out of the total 181 precincts of the said municipality. The trial court declared petitioner
as the duly elected municipal mayor of Kidapawan, North Cotabato with a plurality of
154 votes. Acting without precedent, the court found private respondent liable not only
for Malaluans protest expenses but also for moral and exemplary damages and
attorneys fees. On February 3, 1994, private respondent appealed the trial court
decision to the COMELEC.
Just a day thereafter that is, on February 4, 1994, petitioner filed a motion for
execution pending appeal. The motion was granted by the trial court, in an order,
dated March 8, 1994, after petitioner posted a bond in the amount of P500,000.00. By
virtue of said order, petitioner assumed the office of MunicipaJ Mayor of
Kidapawan, North Cotabato, and exercised the powers and functions of said office.
Such exercise was not for long, though. In the herein assailed decision adverse to
Malaluans continued governance of the Municipality of Kidapawan, North Cotabato, the
First Division of the Commission on Elections (COMELEC) ordered Malaluan to vacate
the office, said division having found and so declared private respondent to be the duly
elected Municipal Mayor of said municipality. The COMELEC en banc affirmed said
decision.
Malaluan filed this petition before us on May 31, 1995 as a consequence.
It is significant to note that the term of office of the local officials elected in the May,
1992 elections expired on June 30, 1995. This petition, thus, has become moot and
academic insofar as it concerns petitioners right to the mayoralty seat in his
municipality
[7]
because expiration of the term of office contested in the election protest
has the effect of rendering the same moot and academic.
[8]

When the appeal from a decision in an election case has already become moot, the
case being an election protest involving the office of mayor the term of which had
expired, the appeal is dismissible on that ground, unless the rendering of a decision on
the merits would be of practical value.
[9]
This rule we established in the case of
Yorac vs. Magalona
[10]
which we dismissed because it had been mooted by the
expiration of the term of office of the Municipal Mayor of Saravia, Negros
Occidental. This was the object of contention between the parties therein. The recent
case of Atienza vs. Commission on Elections,
[11]
however, squarely presented the
situation that is the exception to that rule.
Comparing the scenarios in those two cases, we-explained:
Second, petitioners citation of Yorac vs. Magalona as authority for his main
proposition is grossly inappropriate and misses the point in issue. The sole question
in that case centered on an election protest involving the mayoralty post in Saravia,
Negros Occidental in the general elections of 1955, which was rendered moot and
academic by the expiration of the term of office in December, 1959 It did not involve
a monetary award for damages and other expenses incurred as a result of the election
protest. In response to the petitioners contention that the issues presented before the
court were novel and important and that the appeal should not be dismissed, the Court
held - citing the same provision of the Rules of Court upon which petitioner staunchly
places reliance - that a decision on the merits in the case would have no practical
value at all, and forthwith dismissed the case for being moot. That is not the case
here. In contradistinction to Yorac, a decision on the merits in the case at bench
would clearly have the practical value of either sustaining the monetary award for
damages or relieving the private respondent from having to pay the amount thus
awarded.
[12]

Indeed, this petition appears now to be moot and academic because the herein
parties are contesting an elective post to which their right to the office no longer
exists. However, the question as to damages remains ripe for adjudication. The
COMELEC found petitioner liable for attorneys fees, actual expenses for xerox copies,
and unearned salary and other emoluments from March, 1994 to April, 1995, en
mUsse denominated as actual damages, default in payment by petitioner of which shall
result in the collection of said amount from the bond posted by petitioner on the
occasion of the grant of his motion for execution pending appeal in the trial
court. Petitioner naturally contests the propriety and legality of this award upon private
respondent on the ground that said damages have not been alleged and proved during
trial.
What looms large as the issue in this case is whether or not the COMELEC gravely
abused its discretion in awarding the aforecited damages in favor of private respondent.
The Omnibus Election Code provides that actual or compensatory damages may
be granted in all election contests or in quo warranto proceedings in accordance with
law.
[13]
COMELEC Rules of Procedure provide that in all election contests the Court
may adjudicate damages and attorneys fees as it may deem just and as established by
the evidence if the aggrieved party has included such claims in his pleadings.
[14]
This
appears to require only that the judicial award of damages be just and that the same be
borne out by the pleadings and evidence. The overriding requirement for a valid and
proper award of damages, it must be remembered, is that the same is in accordance
with law, specifically, the provisions of the Civil Code pertinent to damages.
Article 2199 of the Civil Code mandates that except as provided by law or by
stipulation, one is entitled to an adequate compensation only for such pecuniary loss
suffered by him as he has duly proved. Such compensation is referred to as actual or
compensatory damages. The Civil Cod.e further prescribes the proper setting for
allowance of actual or compensatory damages in the following provisions:
ART. 2201. In contracts and quasi-contracts, the damages for which the obligor who
acted in good faith is liable shall be those that are the natural and probable
consequences of the breach of the obligation, and which the parties have foreseen or
could have reasonably foreseen at the time the obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible
for all damages which may be reasonably attributed to the non-performance of the
obligation.
ART. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages
which are the natural and probable consequences of the act or omission complained
of. It is not necessary that such damages have been foreseen or could have reasonably
been foreseen by the defendant.
Considering that actual or compensatory damages are appropriate only in breaches
of obligations in cases of contracts and quasi-contracts and on the - occasion of crimes
and quasi-delicts where the defendant may be held liable for all damages the proximate
cause of which is the act or omission complained of, the monetary claim of a party in an
election case must necessarily be hinged on either a contract or a quasi-contract or a
tortious act or omission or a crime, in order to effectively recover actual or
compensatory damages.
[15]
In the absence of any or all of these, the claimant must be
able to point out a specific provision of law authorizing a money claim for election
protest expenses against the losing party.
[16]
For instance, the claimant may cite any of
the following provisions of the Civil Code under the chapter on human relations, which
provisions create obligations not by contract, crime or negligence, but directly by law:
ART. 19. Every person must in the exercise of his rights and in the performance of
his duties, act with justice, give everyone his due, and observe honesty and good faith.
ART. 20. Every person who, contrary to law, willfully or negligently causes damage
to another, shall indemnify the latter for the same.
xxx xxx xxx
ART. 32. Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable to the latter for
damages:
xxx xxx xxx
(5) Freedom of suffrage;
xxx xxx xxx
In any of the cases referred to in this article, whether or not the defendants act or
omission constitutes a criminal offense, the aggrieved party has a right to commence
an entirely separate and distinct civil action for damages, and for other relief. x x x
[17]

Claimed as part of the damages to which private respondent is allegedly entitled to,
is P169,456.00 constituting salary and other emoluments from March, 1994 to April,
1995 that would have accrued to him had there not been an execution of the trial courts
decision pending appeal therefrom in the COMELEC.
The long-standing rule in this jurisdiction is that notwithstanding his subsequent
ouster as a result of an election protest, an elective official who has been proclaimed by
the COMELEC as winner in an electoral contest and who assumed office and entered
into the performance of the duties of that office, is entitled to the compensation,
emoluments and allowances legally provided for the position.
[18]
We ratiocinated in the
case of Rodriguez vs. Tan that:
This is as it should be. This is in keeping with the ordinary course of events. This is
simple justice. The emolument must go to the person who rendered the service unless
the contrary is provided. There is no averment in the complaint that he is linked with
any irregularity vitiating his election. This is the policy and the rule that has been
followed consistently in this jurisdiction in connection with positions held by persons
who had been elected thereto but were later ousted as a result of an election
protest. The right of the persons elected to compensation during their incumbency has
always been recognized. We cannot recall of any precedent wherein the contrary rule
has been upheld.
[19]

In his concurring opinion in the same case, however, Justice Padilla equally stressed
that, while the general rule is that the ousted elective official is not obliged to reimburse
the emoluments of office that he had received before his ouster, he would be liable for
damages in case he would be found responsible for any unlawful or tortious acts in
relation to his proclamation. We quote the pertinent portion of that opinion for
emphasis:
Nevertheless, if the defendant, directly or indirectly, had committed unlawful or
tortious acts which led to and resulted in his proclamation as senator-elect, when in
truth and in fact he was not so elected, he would be answerable for damages. In that
event the salary, fees and emoluments received by or paid to him during his illegal
incumbency would be a proper item of recoverable damage.
[20]

The criterion for ajustifiable award of election protest expenses and salaries and
emoluments, thus, remains to be the existence of a pertinent breach of obligations
arising from contracts or quasi-contracts, tortious acts, crimes or a specific legal
provision authorizing the money claim in the context of election cases. Absent any of
these, we could not even begin to contemplate liability for damages in election cases,
except insofar as attorneys fees are concerned, since the Civil Code enumerates the
specific instances when the same may be awarded by the court.
ART. 2208. In the absence of stipulation, attorneys fees and expenses of litigation,
other than judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendants act or omission has compelled the plaintiff to litigate with
third persons or to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the
plaintiffs plainly valid, just and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and skilled
workers;
(8) In actions for indemnity under workmens compensation and employers
liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that attorneys fees
and expenses of litigation should be recovered.
[21]

Given the aforecited laws, and jurisprudence on the matter at issue, let us now look
into the basis of respondent COMELEC for awarding actual damages to private
respondent in the form of reimbursement for attorneys fees, actual expenses for xerox
copies, and salary and other emoluments that should have accrued to him from March,
1994 to April, 1995 had the RTC not issued an order for execution pending appeal.
The First Division of the COMELEC ruled on private respondents claim for actual or
compensatory damages in this wise:
x x x under the present legal setting, it is more difficult than in the past to secure an
award of actual or compensatory damages either against the protestant or the protestee
because of the requirements of the law.
In the instant case, however, We are disposed to conclude that the election protest
filed by the protestant is clearly unfounded. As borne out by the results of the
appreciation of ballots conducted by this Commission, apparently the protest was filed
in bad faith without sufficient cause or has been filed for the sole purpose of molesting
the protestee-appellant for which he incurred expenses. The erroneous ruling of the
Court which invalidated ballots which were clearly valid added more injury to the
protestee-appellant. This would have been bearable since he was able to perfect his
appeal to this Commission. The final blow, however, came when the Court ordered the
execution of judgment pending appeal which, from all indications, did not comply with
the requirements of Section 2, Rule 39 of the Rules of Court. There was no good and
special reason at all to justify the execution ofjudgment pending appeal because the
protestees winning margin was 149 votes while that of the protestant - after the Court
declared him a winner - was only a margin of 154 votes. Clearly, the order of execution
of judgment pending appeal was issued with grave abuse of discretion.
For these reasons, protestee-appellant seeks to recover the following:
1. Actual damages representing attorneys fees for the new counsel who handled the
Appeal and the Petition for Certiorari before the Court of Appeals x x x -P3 72, 5
00.00
2. Actual expenses for xerox copying of Appellants Brief and the annexes (14 copies
at P 1.50 x x x -P11,235.00
3. Actual expenses for xerox copying of ballots x x x - P3,919.20
4. Actual damages for loss of salary and other emoluments since March 1994 as per
attached Certification issued by the Municipal Account of Kidapawan x x x -
P96,832.00 (up to October 1994 only)
Under Article 2208 of the New Civil Code attorneys fees and expenses of litigation
can be recovered (as actual damages) in the case of clearly unfounded civil action or
proceeding. And, while the case of Eulogio Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724)
disallowed recovery of salaries and allowances (as damages) from elected officials who
were later ousted, under the theory that persons elected has (sic) a right to
compensation during their incumbency, the instant case is different. The protestee-
appellant was the one elected. He was ousted not by final judgment but by an order of
execution pending appeal which was groundless and issued with grave abuse of
discretion. Protestant-appellee occupied the position in an illegal manner as a usurper
and, not having been elected to the office, but merely installed through a baseless court
order, he certainly had no right to the salaries and emoluments of the office.
Actual damages in the form of reimbursement for attorneys fees (P3 72,500.00),
actual expenses for xerox copies (P15,154.00), unearned salary and other emoluments
from March 1994 to April 1995 or 14 months at P12,104.00 a month (P169,456.00),
totalled P557,110.00. To (sic) this amount, however, P3 00,000.00 representing that
portion of attorneys fees denominated as success fee must be deducted this being
premised on a contingent event the happening of which was uncertain from the
beginning. Moral damages and exemplary damages claimed are, of course, disallowed
not falling within the purview of Section 259 of the Omnibus Election Code.
It goes without saying that if the protestant-appellee fails to pay the actual damages
of P257,110.00, the amount will be assessed, levied and collected from the bond of
P500,000.00 which he put up before the Court as a condition for the issuance of the
order of execution of judgment pending appeal.
[22]

Petitioner filed a motion for reconsideration of the aforecited decision on March
29, 1995. The COMELEC en banc, however, did not find any new matter substantial in
nature, persuasive in character or sufficiently provocative to compel reconsideration of
said decision and accordingly affirmed in toto the said decision. Hence, this petition
raises, among others, the issue now solely remaining and in need of final adjudication in
view of the mootness of the other issues anent petitioners right to the contested office
the term for which has already expired.
We have painstakingly gone over the records of this case and we can attribute to
petitioner no breach of contract or quasi-contract; or tortious act nor crime that may
make him liable for actual damages. Neither has private respondent been able to point
out to a specific provision of law authorizing a money claim for election protest
expenses against the losing party.
[23]

We find respondent COMELECs reasoning in awarding the damages in question to
be fatally flawed. The COMELEC found the election protest filed by the petitioner to be
clearly unfounded because its own appreciation of the contested ballots yielded results
contrary to those of the trial court. Assuming, ex gratia argumentis, that this is a
reasonable observation not without basis, it is nonetheless fallacious to conclude a
malicious intention on the part of petitioner to molest private respondent on the basis of
what respondent COMELEC perceived as an erroneous ruling of the trial court. In other
words, the actuations of the trial court, after the filing of a case before it, are its own,
and any alleged error on its part does not, in the absence of clear proof, make the suit
clearly unfounded for which the complainant ought to be penalized. Insofar as the
award of protest expenses and attorneys fees are concerned, therefore we find them to
have been awarded by respondent COMELEC without basis, the election protest not
having been a clearly unfounded one under the aforementioned circumstances.
Respondent COMELEC also found the order granting execution of judgment
pending appeal to be defective because of alleged non-compliance with the requirement
that there be a good and special reason
[24]
to justify execution pending appeal. We,
however, find that the trial court acted judiciously in the exercise of its prerogatives
under the law in issuing the order granting execution pending appeal. First, it should be
noted that the applicability of the provisions of the Rules of Court, relating to execution
pending appeal, has ceased to be debatable after we definitively ruled in Garcia vs. de
Jesus
[25]
that 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.
[26]
It is not disputed that petitioner filed a bond in the amount of P500,000.00 as
required under the Rules of Court.
It is also now a settled rule that 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.
[27]

x x x Why should the proclamation by the board of canvassers suffice as 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 x x x 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 extraneous considerations x x x the
board must act summarily, practically raising (sic) 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
x x x.
[28]

Without evaluating the merits of the trial courts actual appreciation of the ballots
contested in the election protest, we note on the face of its decision that the trial court
relied on the findings of the National Bureau of Investigation (NBI) handwriting experts
which findings private respondent did not even bother to rebut. We thus see no reason
to disregard the presumption of regularity in the performance of official duty on the part
of the trial court judge. Capping this combination of circumstances which impel the
grant of immediate execution is the undeniable urgency involved in the political situation
in the Municipality of Kidapawan, North Cotabato. The appeal before the COMELEC
would undoubtedly cause the political vacuum in said municipality to persist, and so the
trial court reasonably perceived execution pending appeal to be warranted and
justified. Anyway, the bond posted by petitioner could cover any damages suffered by
any aggrieved party. It is true that mere posting of a bond is not enough reason to
justify execution pending appeal, but the nexus of circumstances aforechronicled
considered together and in relation to one another, is the dominant consideration for the
execution pending appeal.
[29]

Finally, we deem the award of salaries and other emoluments to be improper and
lacking legal sanction. Respondent COMELEC ruled that inapplicable in the instant
case is the ruling in Rodriguez vs. Tan
[30]
because while in that case the official ousted
was the one proclaimed by the COMELEC, in the instant case, petitioner was
proclaimed winner only by the trial court and assumed office by virtue of an order
granting execution pending appeal. Again, respondent COMELEC sweepingly
concluded, in justifying the award of damages, that since petitioner was adjudged the
winner in the elections only by the trial court and assumed the functions of the office on
the strength merely of an order granting execution pending appeal, the petitioner
occupied the position in an illegal manner as a usurper.
We hold that petitioner was not a usurper because, while a usurper is one who
undertakes to act officially without any color of right,
[31]
the petitioner exercised the duties
of an elective office under color of election thereto.
[32]
It matters not that it was the trial
court and not the COMELEC that declared petitioner as the winner, because both, at
different stages of the electoral process, have the power to so proclaim winners in
electoral contests. At the risk of sounding repetitive, if only to emphasize this point, we
must reiterate that the decision of a judicial body is no less a basis than the
proclamation made by the COMELEC-convened Board of Canvassers for a winning
candidates right to assume office, for both are undisputedly legally sanctioned. We
deem petitioner, therefore, to be a de facto officer who, in good faith, has haa
possession of the office and had discharged the duties pertaining thereto
[33]
and is thus
legally entitled to the emoluments of the office.
[34]

To recapitulate, Section 259 of the Omnibus Election Code only provides for the
granting in election cases of actual and compensatory damages in accordance with
law. The victorious party in an election case cannot be indemnified for expenses which
he has incurred in an electoral contest in the absence of a wrongful act or omission or
breach of obligation clearly attributable to the losing party. Evidently, if any damage had
been suffered by private respondent due to the execution ofjudgment pending appeal,
that damage may be said to be equivalent to damnum absque injuria, which is, damage
without injury, or damage or injury inflicted without injustice, or loss or damage without
violation of a legal right, or a wrong done to a man for which the law provides no
remedy.
[35]

WHEREFORE, the petition for certiorari is GRANTED. While we uphold the
COMELEC decision dated May 5, 1995 that private respondent Joseph Evangalista is
the winner in the election for mayor of the Municipality of Kidapawan, North Cotabato,
that portion of the decision is deemed moot and academic because the term of office for
mayor has long expired. That portion of the decision awarding actual damages to
private respondent Joseph Evangelista is hereby declared null and void for having been
issued in grave abuse of discretion and in excess of jurisdiction.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Francisco, and Panganiban, JJ., concur.



[1]
Promulgated on May 5, 1995 in EAC No. 8-94; Rollo, pp. 36-40.
[2]
Promulgated on March 24, 1995 in EAC No. 8-94; Rollo, pp. 41-89.
[3]
Formerly Second Division with members, Commissioners Regalado E. Maambong, Graduacion A.R.
Claravall, and Julio F. Desamito.
[4]
Dated January 31, 1994; Rollo, pp. 90-135.
[5]
Regional Trial Court of Kidapawan, Cotabato, 12th Judicial Region, presided by Judge Rodolfo M.
Serrano.
[6]
Election Case No. 881.
[7]
Amatong v. COMELEC, G.R. No.71003, April28, 1988, En Banc, Minute Resolution; Artano v. Arcillas,
G.R. No. 76823, April 26, 1988, En Banc, Minute Resolution.
[8]
Atienza v. Commission on Elections, 239 SCRA 298; Abeja v. Tafiada, 236 SCRA 60;
Yorac v. Magalona, 3 SCRA 76.
[9]
Yorac v. Magalona, supra.
[10]
3 SCRA 76.
[11]
239 SCRA 298.
[12]
Atienza v. Commission on Elections, supra.
[13]
B.P. BIg. 881, Sec. 259.
[14]
COMELEC Rules of Procedure, Rule 35, Sec. 19.
[15]
Atienza v. Commission on Elections, 239 SCRA 298.
[16]
Ibid.
[17]
Civil Code of the Philippine Preliminary Title, Chapter 2.
[18]
Rodriguez v. Tan, 91 Phil. 724.
[19]
Ibid.
[20]
Concuring Opinion of Justice Padilla in Rodriguez v. Tan, supra.
[21]
Civil Code of the Philippines, Book IV, Title XVIII, Chapter 2.
[22]
Decision rendered by the First Division of the Commission on Elections (COMELEC), promulgated on
March 24,1995, pp. 45-48; Rollo, pp. 85-88.
[23]
Atienza v. COMELEC, 239 SCRA 298.
[24]
Rules of Court, Rule 39, Section 2
[25]
206 SCRA 779.
[26]
Ibid.
[27]
Garcia v. De Jesus, 206 SCRA 779.
[28]
Gahol v. Riodique, 64 SCRA 494.
[29]
Roxas v. Court of Appeals, 157 SCRA 370.
[30]
91 Phil. 724.
[31]
Tayco v. Capistrano, 53 Phil. 866.
[32]
Ibid.
[33]
Civil Liberties Union v. The Executive Secretary, 194 SCRA 317.
[34]
Ibid.
[35]
Escano v. CA, 100 SCRA 197; Atienza v. COMELEC, 239 SCRA 298.
EN BANC
[G.R. No. 126298. March 25, 1997]
PATRIA C. GUTIERREZ, petitioner, vs. COMMISSION ON ELECTIONS
AND VICENTE TOMAS VERA III, respondents.
D E C I S I O N
VITUG, J .:
A special civil action for certiorari and prohibition, with a prayer for the issuance of a
writ of temporary restraining order ("TRO") and/or preliminary injunction, has been filed
with this Court to nullify the TRO,
[1]
dated 26 July 1996, and writ of preliminary
injunction,
[2]
dated 04 September 1996, issued by respondent Commission on Elections
("COMELEC") (a) commanding herein petitioner Patria Gutierrez to cease and desist
from performing the duties and functions of Mayor of Tiwi, Albay, and (b) enjoining the
presiding Judge of the Regional Trial Court ("RTC"), Branch 5, Legaspi City, from
enforcing the order/writ of execution pending appeal of his decision in Election Case No.
01-95.
[3]

In the last concluded local elections of 08 May 1995, Patria Gutierrez and Naomi
Corral ran for the position of Municipal Mayor of the Municipality of Tiwi, Albay. The
results of the canvass of election returns showed that Corral garnered a total of nine
thousand ninety seven (9,097) votes and led Gutierrez by one thousand fifty six (1,056)
votes who only obtained a total of eight thousand forty one (8,041) votes. On the basis
of these results, Corral was proclaimed elected Mayor of Tiwi, Albay, on 30 June 1995
and assumed the office in due time.
Asseverating fraud, misappreciation of ballots and other election irregularities,
Gutierrez filed a timely protest contesting the results of the elections in fifty-nine (59)
precincts of Tiwi, Albay. In her answer, Corral denied the allegations of Gutierrez and
counter-protested the remaining twenty-six (26) precincts of Tiwi, Albay.
The case was initially heard before the RTC, Branch 15, of Tabaco, Albay. When
the revision of ballots had concluded, the parties were directed by the court to submit
their respective position papers.
In compliance with an order later issued by this Court, the election case was
transferred to the RTC of Legaspi City, raffled to Branch 5, and there so docketed as
Election Case No. 01-95. The parties stipulated that the only issue for resolution was
"whether or not the contested ballots were properly and correctly appreciated and
counted in favor of either the protestant (Gutierrez) or (the) protestee (Corral)." The
parties agreed to dispense with all other issues.
Naomi Corral unexpectedly died on 06 April 1996 and, following her demise, the
Vice-Mayor, herein respondent Vicente Tomas Vera III ("Vera") assumed the office of
Municipal Mayor. With leave of court, Vera was allowed to intervene in Election Case
No. 01-95. Vera filed a complaint/answer where he joined and adopted Corral's answer
along with the counter-protest. Gutierrez and Vera submitted their respective position
papers.
On 11 July 1996, Vera's counsel received a copy of the decision, dated 10 July
1996, of the trial court in Election Case No. 01-95, which concluded:
"WHEREFORE, premises considered, and it being the finding of this court that the
protestant Patria C. Gutierrez garnered a total of Eight Thousand Twenty (8,020)
votes while the protestee, the late mayor Naomi C. Corral garnered Seven Thousand
Three Hundred Ten (7,310) votes, thus, leading over the protestee by Seven Hundred
Ten (710) votes, decision is hereby rendered, declaring as null and void the
proclamation of the late Naomi C. Corral as the elected mayor of Tiwi, Albay on June
30, 1995, and instead, hereby proclaim and declare Patria C. Gutierrez as the duly
elected mayor of Tiwi, Albay in the last concluded local elections of May 8, 1995.
"The intervenor Vicente Tomas Vera, the duly elected Vice-Mayor of Tiwi, Albay
who acted as Mayor after the death of Naomi C. Corral on April 6, 1996, and during
the pendency of this protest is hereby ordered to vacate the position and surrender the
same peacefully to the protestant Patria C. Gutierrez. Costs against the protestee and
Intervenor.
"SO ORDERED."
[4]

The next day, or on 12 July 1996, Gutierrez moved for an immediate execution of
the decision citing, among other things, the following reasons for the grant thereof, viz:
2. It is well settled that all election cases, especially protest cases, are
imbued with PUBLIC INTEREST and, `it is neither fair nor just to keep in office for
an uncertain period, one whose right is under suspicion. It is imperative that his claim
be immediately cleared not only for the benefit of the winner, but for the sake of
public interest (Unda vs. COMELEC, 190 SCRA 820).
3. The instant election protest case was initiated as far back as July 7, 1995, and
ONE (1) FULL YEAR had elapsed since then. The term of office of local elective
officials is SHORT, only THREE (3) years to be exact, and one third (1/3) of said
term had already been used by the protestee and/or intervenor who turned out to be
the LOSER and not the person elected by the people of Tiwi, Albay.
[5]

On even date, Vera filed before the trial court a notice of appeal, together with an
"Opposition to Motion for Execution with Urgent Motion for Continuance," claiming that
"there (was) no legal and factual basis for an execution pending appeal particularly
under the COMELEC Rules and Regulations x x x (governing) all election contests even
before regular courts"
[6]
and that "the execution of judgment of election case could only
be made after decision by the COMELEC EN BANC."
[7]
On 15 July 1996, he furnished
the COMELEC with a copy of his notice of appeal, through its Electoral Contests
Adjudication Department, and paid the corresponding fee. The appeal was
docketed EAC No. 30-96.
On 16 July 1996, after the trial court had denied Vera's motion for postponement,
the motion for execution was heard and thereafter submitted for resolution. Forthwith,
the trial court granted the motion for execution pending appeal and ordered the
issuance of the corresponding writ of execution
[8]
fixing a P400,000.00 bond
therefor. Gutierrez posted a cash surety bond ofP400,000.00, and the writ of execution
was forthwith issued to enforce the judgment in the election protest.
On 17 July 1996, Gutierrez took her oath of office and assumed office.
Two days later, or on 19 July 1996, Vera filed with the COMELEC a petition
for certiorari, with preliminary mandatory injunction and restraining order, docketed SPR
No. 28-96, assailing the order of the trial court granting execution pending appeal.
The COMELEC, on 25 July 1996, issued, ex parte, a temporary restraining order
directing Gutierrez "to cease and desist from performing the duties of the office of
Mayor, Tiwi, Albay, until (after the) resolution of the application."
[9]
Gutierrez promptly
filed with the COMELEC an "Urgent Motion to Lift Temporary Restraining Order"
contending, among other grounds, that the execution pending appeal is allowed under
Section 2, Rule 39, of the Rules of Court.
After a hearing on the petition, the COMELEC, on 04 September 1996, issued its
other questioned order.
Hence, this petition.
In a resolution, dated 08 October 1996, the Court resolved to issue the temporary
restraining order prayed for.
[10]

Petitioner argues that respondent COMELEC has committed grave abuse of
discretion in discarding the trial court's authority to execute its decision pending
appeal. The Solicitor General counters that the issuance of the TRO and preliminary
injunction by the COMELEC "appears to be justified" against the backdrop of argument
raised by respondent Vera that he was denied due process, i.e., an opportunity to be
heard anent the motion for execution pending appeal.
The Court rules in favor of petitioner.
On the supposed denial of due process, suffice it to say that Vera, in fact, submitted
an opposition to the motion for execution pending appeal. In turn, the 16th July 1996
order of the trial court would show that Vera's opposition was duly considered before the
writ of execution was finally issued. An opportunity to be heard was given, and Vera
made use of it.
The rule is now settled that 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, can be applied, pursuant to Rule 41
[11]
of the COMELEC Rules of
Procedures,
[12]
to election contests decided by the courts.
A motion for execution pending appeal may be filed at any time before the period for
the perfection of the appeal. Such an appeal, when made, is deemed perfected on the
last day for any of the parties to appeal
[13]
or, in this particular case, on 16 July
1996. Petitioner and private respondent both received their respective copies of the
decision on 11 July 1996. An appeal therefrom may thus be filed within five (5)
days
[14]
from 11 July 1996 or until 16 July 1996. On 12 July 1996, the same date that
petitioner filed her motion for execution pending appeal, private respondent filed his
notice of appeal and furnished the COMELEC, through its Electoral Contest
Adjudication Department, with a copy thereof on 15 July 1996. The corresponding fee
was paid, and the appeal was docketed EAC No. 30-96.
Given the circumstances, the trial court undoubtedly still had jurisdiction when, on
16 July 1996, it acted on the motion for immediate execution of the judgment pending
appeal and issued its order granting the motion.
Ostensibly, in order to clothe the COMELEC with jurisdiction on his petition
for certiorari, Vera has argued that the trial court "committed grave abuse of discretion
amounting to excess or absence of jurisdiction in issuing the execution pending appeal
without any legal and factual basis, particularly for non-compliance with the requirement
that there be a good and special reason to justify execution pending appeal."
[15]
A
thorough perusal of the petition,
[16]
however, would indicate that, in substance, it merely
refutes the merits of the decision of the trial court, specifically in the appreciation of the
contested ballots, that should properly be threshed out in his appeal in EAC No. 30-96
(entitled, "Vicente Tomas Vera III vs. Patria C. Gutierrez") now pending with the
COMELEC.
Contrary to Veras claim, the 16th July 1996 order of the trial court granting
execution pending appeal is not without valid and special reasons considering that, as
the trial court so pointed out -
"x x x the protestee died on April 6, 1996 and it is the Vice-Mayor who acted as
Mayor after the protestee died and during the pendency of this case before this Court,
the protestant having been found to be the true winner in the mayoralty race for Tiwi,
Albay and should have been sitting as such from July 1, 1995 to the present but was
not able to sit; that as of today, one-third of the term has already expired; that public
interest will be better served and it would be giving true meaning to the electoral will
of Tiwi, Albay that their chosen Mayor, the protestant herein, should immediately sit
as the Mayor and govern them instead of the Vice-Mayor."
[17]

The wisdom of immediate execution has been upheld in the past by this Court in similar
cases; thus, in Gahol vs. Riodique,
[18]
we have said:
"x x x (T)he 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 extraneous 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 form 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."
(Emphasis supplied)
[19]

Gahol has been reiterated by the Court in the recent case of Malaluan vs. Commission
on Elections
[20]
which has also suggested that -
x x x `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.
`x x x Why should the proclamation by the board of canvassers suffice as 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 x x x 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 extraneous considerations x x x the
board must act summarily, practically raising (sic) 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
x x x.
[21]

All taken, the trial court, in our view, has acted correctly and judiciously in the
exercise of its authority under the law in issuing its 16th July 1996 order, and the
COMELEC gravely abused its discretion in disregarding that prerogative of the court.
WHEREFORE, the petition is GRANTED. The questioned temporary restraining
order of 25 July 1996 and the order/writ of preliminary injunction of 04 September 1996
of the Commission on Elections are hereby NULLIFIED, and this Courts restraining
order of 08 October 1996 is made permanent. No special pronouncement on costs.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Kapunan, Mendoza, Francisco Hermosisima, Jr., and Panganiban, JJ, concur.



[1]
Rollo, pp. 37-38.
[2]
Rollo, p. 39.
[3]
Rollo, pp. 67-68.
[4]
Rollo, p. 57.
[5]
Rollo, p. 59.
[6]
Rollo, p. 72.
[7]
Ibid.
[8]
Rollo, p. 66.
[9]
Rollo, p. 14.
[10]
Rollo, pp. 251-253.
[11]
Sec. 1. The Rules of Court. - In the absence of any applicable provision in these Rules, the pertinent
provisions of the Rules of Court in the Philippines shall be applicable by analogy or in suppletory
character and effect.
[12]
Garcia vs. De Jesus, 206 SCRA 779.
[13]
Relampagos vs. Cumba, 243 SCRA 690.
[14]
Sec. 3, Rule 22, in relation to Section 20, Rule 35, COMELEC Rules of Procedure.
[15]
Rollo, p. 74.
[16]
In his initial argument, Vera contends that the trial court judge was not in a position to judiciously
render judgment on the execution of judgment pending appeal because he did not have the opportunity to
hear the case. Thereafter, he went on to discuss several matters to explain why the ballots invalidated by
the judge in his decision was grossly erroneous and baseless, to wit:
As to the forty-six (46) ballots for the prostestee found by the court to be patently written by two or more
persons.
x x x
As to the 151 invalidated ballots for the protestee for having been allegedly written by one and the same
person.
x x x
As to the 96 invalidated ballots for the protestee for allegedly being stray votes.
x x x
As to the 647 invalidated ballots for the protestee on grounds of distinctive or distinguishing marks (467),
impertinent, irrelevant, unnecessary words/expressions (32), ballots with written names of local
residents (71), and intentional repetition of candidates name (77).
x x x
"As to the distinctive or distinguishing marks with 467 ballots invalidated.
"x x x
As to the 71 invalidated ballots of the protestee for alleged writing of names of local residents.
x x x
As to the 77 invalidated ballots of the protestee on the alleged markings of the same by intentional
repetition.
x x x
As to the 32 invalidated ballots of the protestee on alleged impertinent, irrelevant, unnecessary
words/expressions.
x x x
As to the alleged marked ballots because of distinctive pattern of voting to identify the ballots or the
voters were counted. (Rollo, pp. 279-287)
[17]
Rollo, p. 66.
[18]
64 SCRA 494.
[19]
At p. 515.
[20]
254 SCRA 397.
[21]
At p. 413.
EN BANC
[G.R. No. 124169. April 18, 1997]
ASAN "SONNY" CAMLIAN, petitioner, vs. COMMISSION ON
ELECTIONS and LEONARDO A. PIOQUINTO, respondents.
D E C I S I O N
KAPUNAN, J .:
What is to be resolved in this case is whether or not the Commission on Elections
(COMELEC) committed grave abuse of discretion in setting aside the Regional Trial
Court's order of execution pending appeal of its decision declaring petitioner as duly
elected mayor of Isabela, Basilan in the May 8, 1995 elections.
The facts are as follows:
Petitioner Asan "Sonny" Camlian and private respondent Leonardo A. Pioquinto
were among the candidates for the mayoralty of Isabela, Basilan during the May 8, 1995
elections.
After the canvassing, private respondent was found to have obtained a total of eight
thousand two hundred seventeen (8,217) votes while petitioner garnered a total of five
thousand nine hundred forty six (5,946) votes. Consequently, private respondent was
proclaimed winner by the Municipal Board of Canvassers of Isabela, Basilan on May 12,
1995. He, thereafter, assumed office and discharged the duties and responsibilities of
the same.
On May 19, 1995, petitioner filed an electoral protest before the Regional Trial Court
(RTC) of Basilan, Branch II.
On January 22, 1996, the RTC rendered a decision declaring petitioner as the duly
elected mayor of Isabela, Basilan after finding that he obtained a total of five thousand
eight hundred thirty six (5,836) votes over private respondent's two thousand two
hundred ninety one (2,291) votes.
[1]

On the same day, private respondent filed a notice of appeal while petitioner filed a
motion for execution pending appeal.
On January 29, 1996, a hearing was conducted on the motion for execution pending
appeal.
On January 31, 1996, the RTC issued an order granting petitioner's motion for
execution pending appeal.
[2]
Accordingly, a writ of execution was issued. On the same
day, petitioner assumed office and commenced to discharge the functions appurtenant
thereto.
On February 6, 1996, private respondent filed a petition for certiorari with prayer for
preliminary injunction and issuance of a temporary restraining order with respondent
COMELEC, docketed as SPR No. 5-96.
On February 8, 1996, respondent COMELEC issued a temporary restraining order
directing (a) Judge Salvador Memoracion to cease and desist from implementing the
January 31, 1996 order of execution and (b) petitioner from assuming and discharging
the functions of the office of the mayor of Isabela, Basilan until further orders
therefrom.
[3]

On February 29, 1996, hearing and oral arguments on the petition and the
preliminary injunction was conducted by respondent COMELEC.
On March 14, 1996, respondent COMELEC issued an order granting the issuance
of a writ of preliminary injunction.
[4]

On March 18, 1996, respondent COMELEC issued another order declaring that the
preliminary injunction it issued was in the nature of a mandatory injunction by reason of
which petitioner must cease from discharging the functions of the office of the mayor of
Isabela, Basilan.
On March 27, 1996, petitioner filed the instant petition for certiorari seeking the
nullification of the orders of respondent COMELEC directing (a) RTC Judge Salvador
Memoracion to cease and desist from implementing his order granting petitioner's
motion for execution pending appeal and (b) petitioner to cease and desist from
discharging the functions of the office of the mayor of Isabela, Basilan.
On March 29, 1996, this Court issued a temporary restraining order ordering
respondent COMELEC to cease and desist from implementing and enforcing its March
14, 1996 order.
[5]

On April 16, 1996, respondent COMELEC issued yet another resolution resolving
on the merits SPR No. 5-96. The decretal portion of the same reads:
WHEREFORE, the petition of Leonardo A. Pioquinto is hereby
GRANTED. Judgment is hereby rendered:
1. DECLARING NULL AND VOID ab initio, the Order dated January 31, 1996 granting
the issuance of writ of execution in Electoral Protest No. 1-95;
2. DECLARING likewise, null and void AND OF NO EFFECT, the writ of execution
dated January 31, 1996, being based on null and void Order of January 31, 1996;
3. The proclamation of respondent Asan Camlian on January 22, 1996 is likewise
declared null and void;
4. DIRECTING respondent Asan Camliam (sic) to vacate the office of Mayor of
Isabela, Basilan and to relinquish the said position to Leonardo A. Pioquinto.
The above resolution is without prejudice to the final resolution of the appeal filed
before this Commission by Leonardo A. Pioquinto protestee-appellant docketed as
EAC No. 4-96.
SO ORDERED.
[6]

Consequently, petitioner filed a motion for leave to file supplemental and/or
amended petition attaching thereto his supplemental and/or amended petition, this time
including in his cause the prayer for nullification of the April 16, 1996 order of
respondent COMELEC.
The sole issue for resolution in the instant case hinges on whether or not
respondent COMELEC committed, or acted in, grave abuse of discretion amounting to
lack of jurisdiction in issuing the assailed orders nullifying the RTC's January 31, 1996
order granting the motion for execution pending appeal.
The remedy of certiorari is proper only to correct errors of jurisdiction committed by
a lower court, tribunal, board or agency exercising judicial functions, or grave abuse of
discretion which is tantamount to lack of jurisdiction. Where the error is not one of
jurisdiction but an error of law or fact which is a mistake of judgment, certiorari is not
available. In the instant case, herein petitioner asseverates that the challenged orders
were issued by respondent COMELEC with grave abuse of discretion amounting to lack
of jurisdiction and should therefore be set aside.
We do not agree.
At the outset, we note that there is no dispute with respect to the jurisdiction of the
Regional Trial Courts to rule on motions for execution pending appeal filed within the
reglementary period for perfecting an appeal.
[7]
Consequently, the filing of a notice of
appeal within the same period does not divest the trial court of its jurisdiction over a
case and resolve pending incidents.
[8]
Neither is there any doubt that the COMELEC has
the authority to issue the extraordinary writs of certiorari, prohibition and mandamus in
election cases over which it has appellate jurisdiction by virtue of Section 50 of Batas
Pambansa Bilang 697.
[9]
What petitioner would like this Court to consider is solely the
issue of whether or not respondent COMELEC erred in annulling and setting aside the
order of the RTC granting the motion for execution pending appeal in the absence of
good reasons for the immediate execution of the questioned judgment.
Pursuant to Section 1, Rule 41 of the COMELEC Rules of Procedure, Section 2,
Rule 39 of the Rules of Court,
10
which allows Regional Trial Courts to order execution
pending appeal upon good reasons stated in a special order,
11
may be made to apply
suppletorily or by analogy to election cases decided by them.
12
While execution pending
appeal may be allowed under the foregoing rule, the said provision must be strictly
construed against the movant as it is an exception to the general rule on execution of
judgments.
13
Following civil law jurisprudence, the reason allowing for immediate
execution must be of such urgency as to outweigh the injury or damage of the losing
party should it secure a reversal of the judgment on appeal. Absent any such
justification, the order of execution must be struck down as flawed with grave abuse of
discretion.
14

In the case before us, no such justification exists.
Records bear that petitioner, in his pleading entitled "Supplemental Reasons and
Arguments on the Matter of the Propriety for the Immediate Issuance of a Writ of
Execution" (his earlier "Motion for Execution" contained no good reasons) cited the
following as alleged "good" reasons for immediate execution pending appeal, to wit:
1.) This is an Election Case and as such enjoys preference over all action (sic)
except habeas corpus (Art. 258, P.B. 881, otherwise known as the Omnibus
Election Code);
2.) Public interest demands that any cloud as to the true result of an election should be
dispelled as soon as possible. The legislative policy embodied in these sections
which hastens the administration of justice in election contests is aimed at making
more effective the constitutional principle that sovereignty resides in the people
(QUERUBIN v. CA, G.R. 2581, cited in GONZALES, Administrative Law, Law on
Public Officers, and Election Law, 1966 ed., P. 518);
3.) Even before the judgment has become executory and before appeal was perfected,
the Court, in its discretion, may order execution upon good reason (sic) to be stated
in the special order such as where the appeal is clearly
dilatory. (RODRIGUEZ v. CA, May 23, 1959; DE VER v. SANTOS, 1-24351, Sept.
22, 1977), 1 An appeal for delay is good for execution pending appeal. When an
appeal is taken for purpose of delay, such fact is good reason for granting execution
pending appeal; (PRESBITERO v. RODAS, 77 PHIL. 300; ILOILO TRADING
CENTER v. RODAS, 77 PHIL. 327), 2 A dilatory tactic to unduly delay the
restoration of the possession of the land in question (Office of this Case) and the
fruitful used thereof in violation of plaintiff's rights is good enough reason to execute
judgment pending appeal; (TOLEDO v. TIZON, CA, G.R. No. 27412-R, Sept. 2,
1960), 3 The absence of a good defense on appeal is a good reason for execution
pending appeal. There was consequently no excuse to Felix Feria waiting for the
outcome of the proceedings on appeal, which obviously will not affect his right to
recover; (NAVARRA v. MARTINEZ, 66 PHIL. 178; LUZON SURETY COMPANY,
INC., v. ENRIQUEZ, No. L-9744, JAN. 29, 1957), 4 Another good reason for the
grant of immediate execution is where the prevailing party posts sufficient bond to
answer for damages in case of reversal of the judgment; (HDA.
NAVARRA v. LABRADOR, 65 PHIL. 336; GF PVTA v. LUCERO, ET. AL., L-32550,
OCT. 27, 1983), 5 The losing party, however, can post a supersedes (sic) bond to
prevent execution pending appeal; (NAWASA v. CATOLICO, L-21705 AND L-
24327, APRIL 27, 1967; CITY OF MANILA v. CA, ET. AL., L-35253, JULY 26,
1976), 6 But, where the needs of the prevailing party and that of public interest are
urgent, the Court can order the IMMEDIATE EXECUTION DESPITE THE
SUPERSEDEAS BOND.
15

In the trial court's order for execution pending appeal, it merely adopted some of the
alleged "good" reasons invoked by the petitioner, namely: (a) public interest in the true
outcome of the election; (b) finding that private respondent "illegally manufactured
votes;" and (c) appeal was interposed merely for the purpose of delay.
16

Respondent COMELEC found the foregoing reasons inadequate and insufficient to
constitute as "good reasons" within the purview of the law. It discussed:
A reading of the disputed Order of execution pending appeal dated January 31,
1996 shows that respondent judge just quoted the reasons advanced by
protestant for the propriety of the issuance of the execution pending appeal
and tackled the jurisdiction of the trial court in issuing the execution pending
appeal citing the cases of Norbi H. Edding versus Commission on Elections,
GR No. 112060, July 17, 1995 and the case of Tomas Tobon Uy versus
Commission on Elections, 206 SCRA 779 and its findings after examination
of the contested ballots that protestee garnered only 2,291 votes as against
protestant's 5,916 votes and concluded that protestee was able to illegally
manufacture 5,836 votes in his favor to the prejudice of protestant and the
sovereign will of the people of the Municipality of Isabela, Basilan.
Thus, a mere reading of the assailed Order of execution pending appeal shows
no good reasons. It must be emphasized that Section 2 of Rule 39 must be
strictly complied with. The reason advanced by the respondent judge that his
ruling finding that protestee manufactured votes in his favor is one of the good
reasons is untenable. In SPR NO. 2-93 (Antonio Dictado vs. Hon. Rodrigo
Cosico), the Commission En Banc had occasion to say: "It has been the
consistent ruling of this Commission that while it is true that when an election
protest is filed the protestee is only considered a presumptive winner until the
protest is resolved, in the same way, when a protestant is adjudged the winner
by a court of law but the case is on appeal with the Commission, such appeal
likewise makes the protestant a presumptive winner and, unless meritorious
grounds exist to execute judgment pending appeal, it is illogical to replace a
presumptive winner proclaimed by a board of canvassers, by another
presumptive winner so declared by a court. It needs no explanation that when
a protestant is installed as a winner pending appeal, that in itself is already
disruptive of the government service. How much more if the protestee wins
the appeal in which case he will have to be reinstalled again to the office
which he was forced to vacate?
17

We agree. Not every invocation of public interest with particular reference to the will
of the electorate can be appreciated as a good reason especially so if the same
appears to be self-serving and has not been clearly established. Public interest will be
best served when the candidate voted for the position is finally proclaimed and
adjudged winner in the elections. Urgency and expediency can never be substitutes for
truth and credibility. The appeal interposed by private respondent to the COMELEC
does not seem to be merely dilatory as it aims to resolve decisively the question as to
who is the true winner in the last elections. Moreover, apart from petitioner's sweeping
and self-serving allegation that the appeal is dilatory, no supporting argument or
explanation whatsoever is offered why he considers it so. The omission militates
against the pretended urgency of the motion for execution pending appeal. We are sure
that both petitioner and private respondent would want to see the light at the end of the
tunnel. Finally, the issue of "illegally manufactured votes" is best ventilated, and must
accordingly be threshed out, in the election case before the COMELEC.
WHEREFORE, the instant petition is hereby DENIED and the challenged
resolutions of the Commission on Elections dated February 8, 1996 and April 16, 1996
in SPR No. 5-96 are AFFIRMED.
The temporary restraining order issued by this Court on March 29, 1996 is hereby
LIFTED.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno,
Mendoza, Francisco, Panganiban, and Torres, Jr., JJ., concur.
Vitug, J., concurs; I should like to only stress that COMELEC would appear not to
have abused its discretion in concluding that the reasons advanced by the trial court
were inadequate to justify its order of execution pending appeal.
Hermosisima, Jr., J., on leave.



[1]
Rollo, pp. 220-221.
[2]
Id., at 234.
[3]
Id., at 253-254.
[4]
Id., at 277.
[5]
Id., at 282-283.
[6]
COMELEC Resolution in SPR No. 5-96 dated April 16, 1996, pp. 5-6.
[7]
Edding v. COMELEC, 246 SCRA 502 [1995].
[8]
Eudela v. Court of Appeals, 211 SCRA 546 [1992].
[9]
Relampagos v. Cumba, 243 SCRA 690 [1995].
10
Sec. 2. Execution pending appeal. On motion of the prevailing party with notice to the adverse party
the court may, in its discretion, order execution to issue even before the expiration of the time to appeal,
upon good reasons to be stated in a special order. If a record on appeal is filed thereafter, the motion
and the special order shall be included therein.

11
Requisites for execution although judgment has been appealed:
(a) There must be a motion by the prevailing party with notice to the adverse party;
(b) There must be "good reasons;"
and (c) The good reasons
must be stated in the special order for execution. (Valencia v. Court of Appeals, 184 SCRA 561 [1990];
Engineering Construction, Inc. v. National Power Corporation, 163 SCRA 9 [1988]; Lao v. Mencias, 21
SCRA 1021 [1967].

12
See also Garcia v. de Jesus, 206 SCRA 779 [1992].

13
The general rule in Rule 39, Section 1 of the Rules of Court is that a judgment can be executed only
after it has become final and executory. Such execution shall issue as a matter of right upon expiration of
the final appeal therefrom if the appeal has been duly perfected.

14
City of Manila v. Court of Appeals, 204 SCRA 362 [1991]; Valencia v. Court of Appeals, 184 SCRA 561
[1990].
15
See Note 1, p. 227.
16
Id., at 232-233.
17
See Note 6, pp. 3-4.
EN BANC
[G.R. No. 130831. February 10, 1998]
ROBERTO D. RAMAS, Francisco N. ORAIZ, JR., BENERANDO F.
MIRANDA, GEORGE V. BATERNA, TOMAS R. LACIERDA, SR.,
and PEDRO T. CALIMOT, JR., petitioners, vs. COMMISSION ON
ELECTIONS, RAUL F. FAMOR, PONCIANO P. CAJETA, MERLYN
U. RABE, CRESENCIA C. BOISER, EDGAR S. REVELO, and
JULIETO B. MABASCOG, respondents.
D E C I S I O N
DAVIDE, JR., J .:
The petitioners urge us in this special civil action for certiorari
[1]
under Rule 65 of the
Rules of Court to set aside the 23 September 1997 Resolution
[2]
of public respondent
Commission on Elections (hereafter COMELEC) in SPR No. 14-96,
[3]
which denied
herein petitioners petition for certiorari and prohibition to set aside and annul the order
of Branch 29 of the Regional Trial Court (RTC) of Pagadian City in Election Protest
Cases Nos. 07-95 to 12-95, inclusive, granting execution pending appeal of the
judgment therein.
The petitioners and the private respondents were the official candidates of the
Nationalist Peoples Coalition (NPC) and the Lakas-NUCD, respectively, for the elective
municipal positions of Guipos, Zamboanga del Sur, in the elections of 8 May
1995. After the canvass of the election returns, the Municipal Board of Canvassers of
Guipos declared and proclaimed the petitioners as the duly elected municipal officials,
to wit:
Petitioner Roberto D. Ramas -- as Mayor
Petitioner Francisco N. Oraiz -- as Vice Mayor
Petitioner Benerando F. Miranda -- as fifth Member of the Sangguniang
Bayan (SB)
Petitioner George V. Baterna -- as sixth Member of the SB
Petitioner Tomas R. Lacierda -- as seventh Member of the SB
Petitioner Pedro T. Calimot, Jr. -- as eighth Member of the SB
Private respondents Raul F. Famor and Ponciano P. Cajeta, the losing candidates
for mayor and vice mayor, respectively, as well as Merlyn U. Rabe, Crescencia C.
Boiser, Edgar S. Revelo, and Julieto B. Mabascog, the 9
th
, 10
th
, 11
th
, and 12
th
placers,
respectively, for members of the SB, seasonably filed separate election protests with
the RTC of Pagadian City. The cases were docketed as Election Protest Cases Nos.
07-95, 08-95, 09-95, 10-95, 11-95, and 12-95 and thereafter consolidated and jointly
tried.
On 16 May 1996, the trial court rendered a 103-page decision
[4]
declaring petitioner
Miranda and all the private respondents except Mabascog as winners in the 8 May 1995
elections. The dispositive portion thereof reads as follows:
WHEREFORE, judgment is hereby rendered declaring:
1. For Mayor, RAUL F. FAMOR, as winner with the margin of Two
hundred Ninety Eight (298) votes over protestee Roberto Ramas, and as a
consequence, the proclamation and oath taking of Protestee Roberto Ramas
as Municipal Mayor of Guipos, Zamboanga del Sur, as null and void and of no
force and effect;
2. For Vice-Mayor, PONCIANO CAJETA, as winner, with a majority of
Three Hundred Forty One (341) votes over that of protestee Francisco Oraiz,
Jr., and as a consequence, his proclamation as Vice-Mayor of Guipos,
Zamboanga del Sur, as null and void and of no force and effect;
3. For Members of the Sangguniang Bayan of Guipos, Zamboanga del
Sur, the following are declared duly qualified and elected, as follows:
3.a Merlyn U. Rabe with 2,403 votes garnered;
3.b Benerando Miranda with 2,361 votes garnered;
3.c Edgar Revelo with 2,249 votes garnered;
3.d Cresencia C. Boiser with 2,238 votes garnered;
and as a consequence, the proclamation and taking of oath of George
Baterna, Tomas Lacierda, Sr., and Pedro Calimot, Jr., are declared null and
void and of no force and effect.
With cost de officio.
SO ORDERED.
On 22 May 1996, private respondents Famor, Cajeta, Rabe, Revelo, and Boiser
filed a Motion for Immediate Execution of Decision Pending Appeal
[5]
alleging as follows:
2. That pursuant to Section 2, Rule 39 of the Rules of Court, and the
Supreme Court ruling in the case of Tomas Tobon Uy vs. COMELEC and
Jose C. Neyre, G.R. No. 97108-09, March 4, 1992, and Daniel Garcia &
Teodoro Ohara vs. Ernesto De Jesus & Cecilia David & Comelec, G.R. No.
88158, March 4, 1992 (SCRA Vol. 206, pages 779-801), Regional Trial Courts
can order execution pending appeal.
3. That there are good reasons in granting the execution of the decision
pending appeal; firstly, the appeal is merely dilatory, and it takes several years
to terminate the appeal; that in most cases, the term of office will already
expire before the appeal is finally decided. 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 vs. Sto.
Domingo, G.R. No. L-30570, 29 July 1969; Lagumbay vs. Comelec, G.R. No.
L-25444, 31 January 1966, 16 SCRA 175); secondly, on the ground of public
interest. It must be noted that the term of office of the contested positions is
nearing expirations, hence, there is a need, then, for this joint decision to be
immediately executory. (See Tomas Tobon Uy vs. Commission on Elections
& Jose C. Neyra, 206 SCRA 779, G.R. No. L-97108-09, March 4, 1992)
4. That protestants [are] willing to put up bond in the amount
of P500,000.00, to answer for any damages protestees may suffer in the
event protestants [are] not entitled to the immediate execution.
On 28 May 1996, the petitioners filed their Opposition to the Motion for Immediate
Execution of the Consolidated Decision.
[6]
On that same day, they filed their respective
Notices of Appeal.
[7]

The next day, or on 29 May 1996, the trial court issued an order
[8]
granting the
motion for execution pending appeal. The order reads as follows:
Acting upon the Motion for Execution of the decision pending appeal with the
opposition thereto, the Court finds the Motion to be well taken and there being
a good reason to grant the same, taking into consideration this involves the
public interest and the near expiration of the term of office of two (2) years and
the pendency of the protest which lasted for one (1) year.
WHEREFORE, the Motion is granted, let a writ of execution be issued to
enforce the decision of the Court pending appeal for the reason aforecited.
SO ORDERED.
On even date, a Writ of Execution
[9]
was issued. Petitioners urgent motion to
reconsider the order of execution was denied.
[10]

On 4 June 1996, the petitioners assailed the trial courts order granting execution
pending appeal in a Petition for Certiorari and Prohibition with Prayer for Preliminary
Injunction and/or Temporary Restraining Order
[11]
filed with the COMELEC. The case
was docketed as SPR
[12]
No. 14-96.
On 6 June 1996, the COMELEC issued an Order
[13]
requiring the respondents to
answer the petition within ten days; setting for hearing the application for a writ of
preliminary injunction on 2 July 1996; and ordering the issuance of a temporary
restraining order directing private respondents Famor, Cajeta, Rabe, Boiser, and
Revelo to cease and desist from assuming the positions of mayor, vice mayor, and
councilors of Guipos, Zamboanga del Sur, respectively, until further orders from the
Commission. A Temporary Restraining Order
[14]
was forthwith issued.
Thereafter, on various dates, the following were filed by the parties before the
COMELEC: a) private respondents Motion to Dissolve/Recall Temporary Restraining
Order,
[15]
b) petitioners Opposition to the Motion to Dissolve/Recall Temporary
Restraining Order,
[16]
c) petitioners Urgent Motion to Cite Private Respondents for
Contempt.
[17]
The above motions were heard by the COMELEC on 9 July 1996; after
which the parties submitted their respective memoranda.
[18]

On 23 September 1997, respondent COMELEC promulgated a
Resolution
[19]
denying the petition in SPR No. 14-96. It ratiocinated thus:
The Court has find [sic] public interest and the pendency of the protest for one
(1) year sufficient to grant execution pending appeal. In election cases, over
and above the claims of the respective contestants is the deep public interest
involved, the need to imperatively determine the correct expression of the will
of the electorate. So much so that laws governing election protest must be
literally interpreted to the end that the popular will expressed in the election of
public officers will not, by reason of purely technical objections, be defeated.
[Calabig vs. Villanueva, 135 SCRA 300]. Our earlier pronouncements in
Dictado vs. Cosico, SPR No. 2-93, July 29, 1993 and Aragdon vs. Balongo,
et al., SPR No. 56-96, January 7, 1997, may provide some
enlightenment. We held:
For while it is true that when an election protest is filed the protestee is only
considered a presumptive winner until the protest is resolved in the same way,
when protestant is adjudged the winner by a court of law but the case is on
appeal with Commission, such appeal likewise makes the protestant a
presumptive winner.
Under the said Dictado and Aragdon doctrines, private respondents can be
adjudged presumptive winners of the contested election, during the pendency
of the appeal. The proclamation rendered by the board of canvassers suffices
as basis for the right to assume, notwithstanding election protest. The
proclaimed winners are simply presumptive winners pending the resolution
of the election protest, and they still are able to assume office. A judgment
favorable to the protestant renders the latter presumptive winner,
notwithstanding the appeal therefrom.
It has already cost the private respondents and the people of Guipos,
Zamboanga del Sur, more than a year before the protest was resolved in the
lower court. Depriving the private respondents the assumption of the duties
and functions ... will only resurrect the evils that the Court has long sought to
contain the grab-the proclamation-prolong-the-protest technique. [Cf
Gahol vs. Riodique, 64 SCRA 494, Estrada vs. Sto. Domingo, 28 SCRA 890,
Lagumbay vs. COMELEC 16 SCRA 175].
We fail to find any abuse of discretion, grave or otherwise. In fact, the position
of the Honorable Judge granting execution pending appeal by reason of public
interest and more than a year pendency of the election protest appears to be
even justified by the Court, as it found in Garcia vs. De Jesus [206 SCRA
779]: In retrospect, good reasons did in fact exist which justified the RTC
Order 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 3
years.
Unsatisfied with the Resolution, the petitioners came to us via this petition wherein
they allege that
A RESPONDENT COMMISSION SERIOUSLY ERRED IN HOLDING
THAT PETITIONERS FAILED TO ESTABLISH A CASE OF GRAVE
ABUSE OF DISCRETION ON THE PART OF THE TRIAL COURT.
1. The questioned order itself of the trial court granting execution
pending appeal which cited insufficient reasons is proof of such
grave abuse of discretion.
B RESPONDENT COMMISSION ACTED ARBITRARILY AND IN
EXCESS OF JURISDICTION WHEN, CONTRARY TO LAW AND THE
COMMISSIONS OWN CASE PRECEDENTS, IT AFFIRMED AS
GOOD REASONS NEAR EXPIRATION OF THE TERM AND A YEAR
PENDENCY OF THE PROTEST.
1. The Dissenting Opinion enunciates the correct state of law on executions
pending appeal.
In the resolution of 11 November 1997, we ordered the parties to maintain
the status quo prevailing at the time of the filing of the petition.
In its Comment for public respondent COMELEC, the Office of the Solicitor General
opines that the trial court was evidently guided by the decisions of this Court in Garcia v.
De Jesus
[20]
andGahol v. Riodique
[21]
in holding that the combined grounds of (a) public
interest, (b) the near expiration of the term of office, and (c) the pendency of the protest
for one year constituted good reasons to grant private respondents motion for
execution pending appeal.
In their Comment, the private respondents maintain that the COMELEC acted in
accordance with law and existing jurisprudence in denying petitioners petition
for certiorari and prohibition. They also allege that the petitioners are even guilty of
forum shopping in filing the instant petition.
The Omnibus Election Code of the Philippines (B.P. Blg. 881) and the other election
laws
[22]
do not specifically provide for execution pending appeal of judgment in election
cases, unlike the Election Code of 1971 whose Section 218 made express reference to
the Rules of Court on execution pending appeal; thus:
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.
In Gahol v. Riodique,
[23]
we explicitly ruled that the assumption of office provided for in
the aforementioned section is that of the protestant, which is made possible by the
provisions of the Rules of Court regarding execution pending appeal, which is none
other than Section 2 of Rule 39.
The failure of the extant election laws to reproduce Section 218 of the Election
Code of 1971 does not mean that execution of judgment pending appeal is no longer
available in election cases. In election contests involving elective municipal officials,
which are cognizable by courts of general jurisdiction; and those involving elective
barangay officials, which are cognizable by courts of limited jurisdiction,
[24]
execution of
judgment pending appeal under Section 2 of Rule 39 of the Rules of Court are
permissible pursuant to Rule 143 of the Rules of Court, which is now Section 4, Rule 1
of the 1997 Rules of Civil Procedure. This Section 4 provides:
SEC. 4. In what cases not applicable. -- These Rules shall not apply to
election cases, land registration, cadastral, naturalization and insolvency
proceedings, and other cases not herein provided for, except by analogy or in
a suppletory character and whenever practicable and convenient. (R143a).
As to election cases involving regional, provincial, and city officials, which fall within
the exclusive original jurisdiction of the COMELEC,
[25]
Section 3 of Article IX-C of the
Constitution vests the COMELEC with the authority to promulgate its rules of procedure
in order to expedite disposition of election cases, including pre-proclamation
controversies. Additionally, Section 52(c), Article VII of the Omnibus Election Code
empowers the COMELEC to promulgate rules and regulations implementing the
provisions of the Code or other laws which it is required to enforce and
administer. Accordingly, the COMELEC promulgated the COMELEC Rules of
Procedure. Section 1 of Rule 41 thereof expressly provides that [i]n the absence of any
applicable provision in [said] Rules, the pertinent provisions of the Rules of Court in the
Philippines shall be applicable by analogy or in a suppletory character and effect.
This Court has explicitly recognized and given approval to execution of judgments
pending appeal in election cases
[26]
filed under existing election laws. In those cases,
the immediate execution was made in accordance with Section 2 of Rule 39 of the
Rules of Court
[27]
reading as follows:
SEC. 2. Execution pending appeal. -- On motion of the prevailing party with
notice to the adverse party the court may, in its discretion, order execution to
issue even before the expiration of the time to appeal, upon good reasons to
be stated in a special order. If a record on appeal is filed thereafter, the
motion and the special order shall be included therein.
All that was required for a valid exercise of the discretion to allow execution pending
appeal was that the immediate execution should be based upon good reasons to be
stated in a special order. The rationale why such execution is allowed in election cases
is, as stated in Gahol v. Riodique,
[28]
to give as much recognition to the worth of a trial
judges decision as that which is initially ascribed by the law to the proclamation by the
board of canvassers. Thus:
Why should the proclamation by the board of canvassers suffice as 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 extraneous considerations, and that the
board must act summarily, practically raising [sic] against time, while, on the
other hand, the judge has 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.
To deprive trial courts of their discretion to grant execution pending appeal would, in
the words of Tobon Uy v. COMELEC,
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.
What are the recognized reasons for execution pending appeal in election cases?
In Gahol v. Riodique, the motion for execution pending appeal recited the following
reasons:
(a) The full term for municipal officials elected in the November 1971
elections expires at the end of December 1975, thereby leaving
protestant no more than ten (10) months of the four-year-term to
which she is rightfully entitled, within which she may be able to seat
[sic] and represent her constituency;
(b) In view of the results of the referendum which was held on
February 27, 1975, President Ferdinand E. Marcos was granted the
right to appoint local officials in lieu of the elective [sic] ones and it is
possible that protestants opportunity to occupy the seat may even
be effectively reduced;
(c) Considering the fully-substantiated finding of massive fraud in
the preparation of ballots cast in favor of the protestee consisting,
among others, of ballots written by one and the same hand, any
appeal that the protestee may interpose would be frivolous and
definitely dilatory in character; and
(d) Any further delay in protestants assumption of office would
prejudice the electorate.
In Tobon Uy v. COMELEC, where protestant Tobon Uy was credited with a slim
margin of only five votes, this Court stated:
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 ofP300,000.00 (Rollo, p. 46).
In Malaluan v. COMELEC,
[29]
this Court declared:
Without evaluating the merits of the trial courts actual appreciation of the
ballots contested in the election protest, we note on the face of its decision
that the trial court relied on the findings of the National Bureau of
Investigation (NBI) handwriting experts which findings private respondent
did not even bother to rebut. We thus see no reason to disregard the
presumption of regularity in the performance of official duty on the part of
the trial court judge. Capping this combination of circumstances which
impelled the grant of immediate execution is the undeniable urgency
involved in the political situation in the Municipality of Kidapawan, North
Cotabato. The appeal before the COMELEC would undoubtedly cause
the political vacuum in said municipality to persist, and so the trial court
reasonably perceived execution pending appeal to be warranted and
justified.
In Gutierrez v. COMELEC,
[30]
this Court sustained the trial courts finding of good
reasons; thus:
[T]he protestee died on April 6, 1996 and it [was] the Vice-Mayor who
acted as Mayor after the protestee died and during the pendency of this
case before this Court; the protestant have been found to be the true
winner in the mayoralty race for Tiwi, Albay and should have been sitting
as such from July 1, 1995 to the present but was not able to sit; that as of
today, one-third of the term has already expired; that public interest will be
better served and it would be giving true meaning to the electoral will of
Tiwi, Albay that their chosen Mayor, the protestant herein, should
immediately sit as the Mayor and govern them instead of the Vice-Mayor.
In Lindo v. COMELEC,
[31]
where the protestant obtained a margin of 200 votes as
adjudged by the trial court, this Court affirmed as good reasons those relied upon by the
trial court in granting execution pending appeal; thus:
In its Order of execution, respondent RTC Judge Dilag cited two reasons
to justify execution of his decision pending appeal, viz.: (1) the grant of
execution would give substance and meaning to the peoples mandate,
especially since the RTC has established private respondents right to the
office; and (2) barely 18 months is left on the tenure of the Ternate mayor
and the people have the right to be governed by their chosen official. In
the recent case of Gutierrez v. COMELEC [G.R. No. 126298, March 25,
1997], the same grounds for execution pending appeal of the decision in
the protest case were relied upon by the trial court and we found them to
be valid reasons for execution.
In a nutshell, the following constitute good reasons, and a combination of two or
more of them will suffice to grant execution pending appeal: (1) the public interest
involved or the will of the electorate; (2) the shortness of the remaining portion of the
term of the contested office; and (3) the length of time that the election contest has been
pending. The filing of a bond, which was mentioned in Tobon Uy, does not constitute a
good reason.
[32]
Nevertheless, the trial court may require the filing of a bond as a
condition for the issuance of a corresponding writ of execution to answer for the
payment of damages which the aggrieved party may suffer by reason of the execution
pending appeal.
In the instant case, the trial court relied on the following as good reasons for its
grant of execution pending appeal: (1) public interest, (2) near expiration of the term of
office involved, and (3) pendency of the election protest for one year. The trial court
cannot, therefore, be said to have acted with grave abuse of discretion. Hence, the
COMELEC acted correctly when it denied SPR No. 14-96.
If any error was committed by the COMELEC, it was in the failure to resolve private
respondents Motion To Dissolve/Recall Temporary Restraining Order and the
petitioners opposition thereto, as well as the Urgent Motion to Cite for Contempt,
although the motions were heard on 9 July 1996.
Because of COMELECs inaction on the first motion, the temporary restraining order
issued on 6 June 1996 was taken full advantage of by the petitioners, who then refused
to surrender to the prevailing private respondents their offices. This created an
unwholesome spectacle: two sets of officials exercising the functions of the elective
local positions of Guipos, Zamboanga del Sur. Such a situation was inimical to public
interest and was a potential source of trouble and even bloodshed between the
contending partisan forces. The COMELEC should have taken a more drastic and
positive action to prevent such a situation by complying strictly with the rule on
restraining orders. Under Section 5, Rule 30 of the COMELEC Rules of Procedure and
Section 5, Rule 58 of the Rules of Court, the lifetime of a restraining order is only
twenty days. This period is nonextendible.
[33]
If the COMELEC wanted to restrain further
the implementation of the trial courts order granting execution pending appeal and the
writ of execution, it should have, if warranted, issued a writ of preliminary injunction; but
it did not.
WHEREFORE, the instant civil action is DISMISSED for failure of the petitioners to
show that respondent Commission on Elections had acted with grave abuse of
discretion in rendering the challenged resolution of 23 September 1997 in SPR No. 14-
96, which is hereby AFFIRMED. The status quo order of 11 November 1997
is LIFTED and the Commission on Elections is DIRECTED to forthwith cause the full
implementation of the execution pending appeal, unless it shall have been rendered
academic by a decision adverse to private respondents in the regular appeals filed by
the petitioners with said Commission.
Costs against petitioners.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Francisco, Panganiban, Martinez, Quisumbing, and Purisima, JJ., concur.



[1]
The remedy contemplated in Section 7, subdivision A of Article IX of the Constitution. See Rivera v.
Commission on Elections, 199 SCRA 178 [1991].
[2]
Annex A of Petition, Rollo, 32-41.
[3]
Entitled Roberto D. Ramas v. Hon. Fausto H. Imbing.
[4]
Annex D of Petition; Rollo, 83-184. Per Judge Fausto H. Imbing.
[5]
Annex F of Petition; Rollo, 187-190.
[6]
Annex G of Petition; Rollo, 191-194.
[7]
Page 12, Petition; Rollo, 14. These appeals were docketed by the Commission on Elections as EAC
Nos. 21-96 to 26-96, inclusive.
[8]
Annex H of Petition; Rollo, 195.
[9]
Annex I of Petition; Rollo, 196-198.
[10]
Annex J of Petition; Rollo, 199-200.
[11]
Annex L of Petition; Rollo, 203-220. This remedy may be granted by the COMELEC per
Relampagos v. Cumba, 243 SCRA 690, 703-704 [1995].
[12]
A prefix for Special Reliefs Cases in the COMELEC (Sec. 4, Rule 7 in relation to Sec. 5, Rule 1 and
Rule 28, Revised COMELEC Rules of Procedure).
[13]
Annex M of Petition; Rollo, 222-223.
[14]
Annex M-1 of Petition, Rollo, 224-225.
[15]
Annex N of Petition; Rollo, 226-229.
[16]
Annex O off Petition, Rollo, 230-234.
[17]
Annex P of Petition; Rollo, 236-243.
[18]
Page 15, Petition; Rollo, 17.
[19]
Annex A of Petition; Rollo, 32-41.
[20]
206 SCRA 779 [1992].
[21]
64 SCRA 494 [1975].
[22]
The Congressional Elections Law of 1987 (Executive Order No. 134); The Local Elections Law of 1988
(R.A. No. 6636); The Electoral Reforms Law of 1987 (R.A. No. 6646); and The Synchronized Elections
and Electoral Reforms Law of 1991 (R.A. No. 7166).
[23]
Supra note 21 at 513-514.
[24]
Section 2(2) of Article IX-C of the Constitution.
[25]
Id.
[26]
For example, Tobon Uy v. COMELEC, 206 SCRA 779 [1992]; Abeja v. Taada, 236 SCRA 60 [1994];
Edding v. COMELEC, 246 SCRA 502 [1995]; Malaluan v. COMELEC, 254 SCRA 397 [1996]; Gutierrez v.
COMELEC, G.R. No. 126298, 25 March 1997; Lindo v. COMELEC, G.R. No. 127311, 19 June 1997; and
Nazareno v. COMELEC, G.R. No. 126977, 12 September 1997.
[27]
This provision has been amended by the 1997 Rules of Civil Procedure; thus:
SEC. 2. Discretionary execution.
(a) Execution of a judgment or final order pending appeal. -- On motion of the prevailing party with notice
to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of
either the original record or the record on appeal, as the case may be, at the time of the filing of such
motion, said court may, in its discretion, order execution of a judgment or final order even before the
expiration of the period to appeal.
After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the
appellate court.
Discretionary execution may only issue upon good reasons to be stated in a special order after due
hearing.
(b) Execution of several, separate or partial judgments. -- A several, separate or partial judgment
may be executed under the same terms and conditions as execution of a judgment or final order pending
appeal.
[28]
Supra note 21 at 514-515. See also Tobon Uy v. COMELEC, supra note 26.
[29]
Supra note 26 at 413.
[30]
Supra note 26.
[31]
Supra note 26.
[32]
Roxas v. Court of Appeals, 157 SCRA 370, 378 [1988].
[33]
Dionisio v. CFI of South Cotabato, 124 SCRA 222 [1983]; Board of Transportation v. Castro, 125
SCRA 410 [1983]; Aquino v. Luntok, 184 SCRA 177 [1990]; Prado v. Veridiano II, 204 SCRA 654 [1991].
EN BANC
[G.R. No. 157687. February 26, 2004]
FERNANDO U. BATUL, petitioner, vs. LUCILO BAYRON and
COMMISSION ON ELECTIONS (First Division), respondents.
[G.R. No. 158959. February 26, 2004]
FERNANDO U. BATUL, petitioner, vs. LUCILO BAYRON and
COMMISSION ON ELECTIONS (First Division), respondents.
D E C I S I O N
CARPIO, J .:
The Case
Before us are two (2) consolidated petitions for certiorari
[1]
with prayers for
temporary restraining order or preliminary injunction. In G.R. No. 157687, petitioner
Fernando U. Batul (Batul) assails the Orders dated 12 February 2003 and 21 March
2003 of the Commission on Elections (COMELEC) First Division
[2]
in Election Protest
Case No. 2001-19 (EPC No. 2001-19). In G.R. No. 158959, Batul challenges the
Order and Writ of Execution dated 21 July 2003 also issued by the COMELEC First
Division in the same case.
The Antecedents
Batul and respondent Lucilo R. Bayron (Bayron) were candidates for vice-mayor of
Puerto Princesa City, Palawan in the 14 May 2001 elections. The Board of Canvassers
of Puerto Princesa City credited Batul with 18,095 votes and Bayron with 15,810
votes. The Board of Canvassers thus proclaimed Batul vice-mayor of Puerto Princesa
City on 21 May 2001.
On 29 May 2001, Bayron filed an election protest with the COMELEC docketed as
EPC No. 2001-19. Bayron protested the election results in the 392 precincts of Puerto
Princesa City, claiming that anomalies and irregularities marred the conduct of the
elections. Batul filed an Answer with Counter-Protest and Counterclaim denying all the
material allegations in Bayrons protest. Batul claimed that it was Bayron who
committed fraud and other irregularities in the protested precincts.
In an Order dated 14 September 2001, the COMELEC First Division considered the
issues joined, directed Bayron to pay the deposit for the revision of ballots; and ordered
both parties to submit their respective pool of revisors. The COMELEC First Division
also directed Palawans provincial election supervisor to coordinate with Puerto
Princesas city treasurer in the inventory of the ballot boxes subject of the protest and
counter-protest. The COMELEC First Division further instructed the provincial election
supervisor to insure the safety and security of the ballot boxes prior to their delivery to
the COMELEC office in Manila.
On 12 November 2001, the COMELEC First Division constituted four (4) Revision
Committees to conduct the revision of ballots of all the protested precincts. After
termination of the revision proceedings on 12 December 2001, the Revision
Committees submitted their respective reports to the COMELEC First Division on 30
April 2002.
Bayron filed his formal Offer of Evidence which included the Final Reports of the
4 Revision Committees and a summary tabulation showing him with 17,248 votes
against Batuls 16,581 votes or a winning margin of 667 votes. Batul filed his
Comment/Opposition to respondent Bayrons Offer of Evidence. On 10 June 2002, the
COMELEC First Division admitted Bayrons exhibits.
The COMELEC First Division directed Batul to present his evidence on 29 July
2002. On this date, Batul presented as his first witness, Board of Election Inspectors
(BEI) chairperson Brenda Landicho (Landicho). Landicho testified that some ballots
do not bear her signature as BEI chairperson. Batul filed a motion to allow him to
present 49 more BEI chairpersons to testify on the genuineness of the signatures of the
BEI chairpersons on the revised ballots.
On 12 February 2003, the COMELEC First Division issued the first assailed order
(First Order) denying Batuls motion to allow fifty (50) BEI chairpersons to testify on the
signatures appearing at the back of the ballots from the precincts where reversals
were found during revision. The First Order disposed as follows:
WHEREFORE, premises considered, the Protestees presentation of the testimonies
of the fifty (50) BEI Chairpersons is hereby DENIED for the reasons discussed above,
it appearing that the Protestee has no other evidence to present other than the above-
mentioned fifty (50) BEI Chairpersons, he is directed to file his Formal Offer of
Evidence within five (5) days from receipt hereof. Protestant shall file his
Comment on Protestees Formal Offer of Evidence within three (3) days from
receipt thereof. Thereafter, the Commission (First Division) shall issue a Ruling on
Protestees Formal Offer of Evidence and both parties shall have a non-extendible
period of fifteen (15) days from receipt of the Ruling to file their respective
Memorandum. After the lapse of the given period, with or without the Memoranda,
the instant case shall be deemed submitted for Resolution.
SO ORDERED.
[3]

On 19 February 2002, Batul filed a motion to reconsider the First Order. The
COMELEC First Division issued the second assailed order dated 21 March 2003
denying petitioner Batuls motion for reconsideration (Second Order).
[4]

Batul filed his formal Offer of Evidence with Tender of Excluded Evidence on 31
March 2003. Batul pointed out that the 50 BEI chairpersons would have testified on the
genuineness of the signatures appearing at the back of the revised ballots where there
were discrepancies between the election returns and the tally sheets on one hand, and
the physical count of the ballots during revision on the other. Bayron filed his
Comment/Objections to Batuls Offer of Evidence. On 11 April 2003, the COMELEC
First Division admitted Batuls exhibits.
The COMELEC First Division deemed the case submitted for resolution after
Bayron filed his memorandum on 29 April 2003 and Batul filed his memorandum on 30
April 2003.
On 11 April 2003, Batul filed the first Petition for Certiorari assailing the validity of
the Orders dated 12 February 2003 and 21 March 2003 issued by the COMELEC First
Division in EPC No. 2001-19, docketed as G.R. No. 157687. Batul contends it was
grave abuse of discretion for the COMELEC First Division to deny his right to present
the 50 BEI chairpersons as witnesses.
During the pendency of G.R. No. 157687, the COMELEC First Division decided the
merits of EPC No. 2001-19 in its Resolution dated 2 July 2003, the dispositive portion of
which reads:
WHEREFORE, premises considered, the Commission (First
Division) RESOLVED as it hereby RESOLVES to ANNUL and SET ASIDE the 21
May 2001 proclamation of FERNANDO U. BATUL as Vice-Mayor of Puerto
Princesa City, Palawan.
ACCORDINGLY, the Commission (First Division) hereby ORDERS:
a. Protestee Vice-Mayor Fernando U. Batul to vacate the Office of the Vice-Mayor,
Puerto Princesa City, Palawan, and to cease and desist from performing the
functions of said office.
b. The Deputy Executive Director of the Commission to implement this Resolution
and to furnish a copy thereof to the Office of the President of the Philippines, the
Secretary of the Department of Interior and Local Government, the Office of the
Governor, Palawan, and to the Office of the Secretary of the local Sangguniang
Panglungsod, Palawan.
No pronouncement as to costs.
[5]

Batul filed a motion to reconsider the 2 July 2003 Resolution. In the meantime,
Bayron filed a motion for immediate execution of judgment on 3 July 2003 which Batul
opposed. The motion was heard on 14 July 2003. The COMELEC First Division issued
the Order dated 21 July 2003 granting immediate execution of judgment. The Order
reads:
WHEREFORE, there being merits in the Motion, the same is GRANTED. In order to
implement the Resolution of the Commission in the above-entitled case, the Clerk of
the Commission (Director IV, ECAD) is herebyDIRECTED to immediately issue
a WRIT OF EXECUTION ordering FERNANDO U. BATUL to CEASE and
DESIST from discharging the powers and duties of the Office of Vice-Mayor of
Puerto Princesa City and to relinquish the same to and in favor of LUCILO BAYRON
who was declared duly elected to the post in the Resolution pending the final
disposition of the Motion for Reconsideration filed by Protestee in the above-entitled
case. Protestant however is ordered to post a bond in the amount of FIFTY
THOUSAND PESOS which shall answer for whatever damage protestee will sustain
by reason of this execution if the final resolution of the protest would decide that the
protestant is not entitled thereto. This Order is immediately executory.
[6]

The COMELEC First Division issued a writ of execution on the same date. Hence,
Bayron took his oath and assumed the position of vice-mayor of Puerto Princesa City on
22 July 2003.
On 25 July 2003, Batul filed the second Petition for Certiorari, assailing this time
the 2 July 2003 Order and the writ of execution (Execution Orders) issued by the
COMELEC First Division, docketed as G.R. No. 158959.
The Court resolved to consolidate G.R. Nos. 157687 and 158959 on 5 August 2003.
The COMELECs Ruling
The COMELEC First Division disallowed the presentation of the testimonies of the
BEI chairpersons for the following reasons:
It cannot be denied that Rule 17, Section 2 of the COMELEC Rules of Procedure
explicitly provides that Protestee be given opportunity to present evidence in support
of his defense.
However, our Rules of Court mandate that the purpose/s for which testimony of any
witnesses (sic) is being offered must be relevant to the specific allegation in the
answer and or counter protest of the Protestee and that the presentation of the intended
evidence can be directly or indirectly covered. Indeed, no such issue which would
warrant the presentation of the testimony of the said fifty (50) Chairpersons was
raised in the Protestees pleading.
The rule in an election protest is that the Protestant or counter-Protestant must stand or
fall upon the issues he had raised in his original or amended pleadings filed prior to
the lapse of the statutory period for filing protest or counter-protest.
In the case of Arroyo vs. HRET et al., 246 SCRA 384-385 it was held:
a party is bound by the theory he adopts and by the cause he stands on and cannot
be permitted after having lost thereon to repudiate his theory and cause of action and
adopt another and seek to re-litigate the matter anew either in the same forum or on
appeal. This is in essence putting private respondent i[n] estoppel to question the
revision.
In this connection, let it be stressed that per records, the Protestee never protested or
assailed on record the signatures of the BEI Chairman in all the precincts where there
is reversal of ballots in favor of Protestant. Neither had the three (3) counsels of
Protestee or their representatives assailed or protested in writing the signatures of any
BEI Chairman during the revision and/or directly before this Honorable Commission.
It is therefore evident that Protestee is now barred or estopped in questioning the final
report of the Committees on Revision on a matter of theory not alleged in his answer.
Hence, the following jurisprudence is applicable as held in the case of Huerta Alba
Resort, Inc. vs. Court of Appeals, 39 SCRA 531, 555:
The failure of petitioner to seasonably assert its alleged right under Section 78 of
R.A. No. 337 precludes it from doing at this late stage of the case. Estoppel may be
successfully invoked if the party fails to raise the question in the early stages of the
proceedings.
[7]

In denying Batuls motion for reconsideration, the COMELEC First Division ruled:
xxx in an election contest where the correctness of the number of votes is involved,
the best evidence and the most conclusive evidence are the ballots
themselves. There is no need to present evidence aliunde particularly in this case
where the protestees main arguments in filing his Motion are the alleged multiple
substitution of ballots and that the contents of the ballot box had been tampered
with and compromised. These matters can be determined by the Commission itself
by conducting an examination of the ballots. In Punzalan vs. Comelec, the Supreme
Court ruled that it is axiomatic that the COMELEC need not conduct an adversarial
proceeding or a hearing to determine the authenticity of ballots or the handwriting
found thereon, and neither does it need to solicit the help of handwriting experts in
examining or comparing the handwriting.
[8]

The COMELEC First Division granted Bayrons motion for immediate execution of
judgment applying Section 2, Rule 39 of the Rules of Court which allows discretionary
execution of judgment upon good reasons stated in the order. The COMELEC First
Division found that the requirements for valid execution pending appeal as set forth
in Ramas v. COMELEC
[9]
were complied with in the case, namely: (1) the will of the
electorate is involved; (2) the shortness of the remaining portion of the term of the
contested office; and (3) the length of time that the election contest has been pending.
The Issues
In G.R. No. 157687, Batul contends that the COMELEC First Division acted with
grave abuse of discretion amounting to lack or excess of jurisdiction in (1) issuing the 12
February 2003 and 21 March 2003 Orders denying Batuls right to present evidence on
his behalf; and (2) considering the case submitted for resolution without giving Batul the
opportunity to present testimonial (and other evidence) on his behalf, in violation of his
right to due process.
In G.R. No. 158959, Batul contends that the COMELEC First Division issued the 21
July 2003 Order executing its Decision despite his pending motion for reconsideration in
violation of COMELEC Rules of Procedure and contrary to applicable jurisprudence.
The Courts Ruling
The petitions are bereft of merit.
G.R. No. 157687
Right to Present Evidence and Due Process
Batul contends that the COMELEC First Division denied his right to due process
when it barred him from presenting the testimonies of the 50 BEI chairpersons. Batul
claims that the COMELEC First Division violated Section 2, Rule 17 of the COMELEC
Rules of Procedure, which provides in pertinent parts:
Sec. 2. Order of Hearing. Unless the Commission or the Division, as the case may
be, for special reasons, directs otherwise, the order of hearing shall be as follows:
(a) The petitioner or protestant shall present evidence on his part;
(b) The protestant-in-intervention, if any, shall present evidence on
his part;
(c) The respondent or protestee shall then offer evidence in
support of his defense or counter-protest, if any;
x x x. (Emphasis supplied)
According to Batul, the testimonies of the BEI chairpersons would have proven
that there was multiple substitution of ballots after the election and that many of the
ballots found during revision were spurious as they do not bear the BEI chairpersons
signatures. The BEI chairpersons testimony on the authenticity of the signatures and
genuineness of the ballots is material, relevant and necessary for a judicious resolution
of the case. Batul claims it is in precincts chaired by these 50 teachers that
discrepancies were found during revision between the election returns and the tally
board as against the physical count of ballots in ballot boxes with allegedly missing self-
locking seals.
These arguments do not persuade us.
First, Batuls reliance on Section 2, Rule 17 of the COMELEC Rules of Procedure in
asserting his alleged right to present the testimonies of the 50 BEI chairpersons is not
supported by Section 2 of Rule 17. A reasonable reading of Section 2, Rule 17 shows
that it is merely directory and confers upon the COMELEC the discretion to change the
order of hearing for special reasons. This is in keeping with the nature of election
contests, which unlike ordinary civil actions, are clothed with public interest.
[10]
The
purpose of an election protest is to ascertain whether the candidate proclaimed by the
board of canvassers is the lawful choice of the people. What is sought is the correction
of the canvass of votes, which was the basis of proclamation of the winning candidate.
Election contests, therefore, involve the adjudication not only of private and
pecuniary interests of rival candidates, but also of paramount public interest considering
the need to dispel uncertainty over the real choice of the electorate.
[11]
The COMELEC
First Division correctly exercised its discretion in refusing to hear all 50 BEI
chairpersons, as this would not have been feasible and practical given the remaining
time until the next election. Procedural rules in elections cases are designed to achieve
not only a correct but also an expeditious determination of the popular will of the
electorate.
[12]

Second, a formal trial-type hearing is not at all times and in all situations essential to
due process. It is enough that the parties are given a fair and reasonable opportunity to
explain their respective sides of the controversy and to present evidence on which a fair
decision can be based.
[13]
Batul was in fact given an opportunity to substantiate his
charge of multiple substitution of ballots at the hearing where BEI chairperson Landicho
testified. Batul also submitted an exhaustive memorandum to support his charge.
Verily, to be heard does not only mean presentation of testimonial evidence in court.
One may also be heard through pleadings and where opportunity to be heard through
pleadings is accorded, there is no denial of due process.
[14]

Third, the COMELEC First Division did not brush aside Batuls apprehensions that
there was a violation of the sanctity of the ballots. The COMELEC First Division ruled
that the ballots exhibit the properties of official ballots as defined in Section 181 of the
Omnibus Election Code.
[15]
The COMELEC also stated that it could readily determine
whether the ballots are official and genuine by merely inspecting the secret security
marks attached to the ballots. Without a doubt, the COMELEC First Division
assiduously scrutinized and re-examined the ballots from the protested precincts to
determine for itself their validity and to faithfully ascertain the will of the electorate. The
COMELEC First Division explained as follows:
Declaring the ballots genuine is one thing. Admitting them as valid expression of the
electorates will is another. To put to rest suspicions that the ballots were fraudulently
prepared then illegally placed into the ballot boxes, the Commission (FIRST
DIVISION) looked for badges of violation of the integrity of the ballot boxes. We
went over the revision reports to ascertain whether or not the revision committees, of
which protestees revisor is a member recorded any observation of anomaly or
irregularity in the condition of the ballots boxes presented for revision. The revision
committees reported that the condition of the ballot boxes were good; that security
seals were attached to the inner lids of the ballot boxes, the envelopes containing the
documents were with paper seals, and the election paraphernalia were intact and
undisturbed.
The statements of the Chairmen of the Board of Election Inspectors that the signatures
on the several ballots are not theirs, cannot be fully relied upon. Their affidavits could
even be considered self-serving. Indeed, We examined the signatures appearing at
the back of the ballots and we did not find distinct variations thereon which could
lead us into concluding that the signatures were forged. As had been shown in many
instances, the signature of a person does not always appear to be similar under all
circumstances. The possibility is not remote that what the Chairmen of the Board of
Election Inspectors perceived as variant strokes and styles were but the signs of stress
and exhaustion from the strenuous repeated acts of signing.
Under these circumstances, we can not subscribe to protestees stand that the
physical count cannot prevail and must yield to the actual votes indicated and duly
certified in the election returns and the tally sheet.
As held in Lerias vs. HRET, it is only when the ballots cannot be produced or are not
available that the election returns would be the best evidence.
In the case at bench, the ballots are available, hence they serve as the primary
evidence of the results of the elections in Puerto Princesa, Palawan. This finding
notwithstanding, the Commission conducted a meticulous examination of each and
every contested ballots, admit those which pass the tests of validity and set aside those
which bear badges of aberration. Indeed, the Commission ruled on these ballots in
accordance with the same procedure adopted for all the contested ballots of the
protested precincts.
[16]

Finally, what spells finis to any further pretensions of Batul that the COMELEC
denied him due process is his mistaken notion that evidence aliunde is necessary to
prove substituted or fake ballots. We have repeatedly ruled that the ballots are the best
evidence of the objections raised and an inspection of these ballots is
sufficient.
[17]
Moreover, there is no better authority than the COMELEC itself to determine
the authenticity of the ballots, having itself ordered and supervised the printing of all the
official ballots.
[18]

G.R. No. 158959
Valid Execution Pending Appeal
Batul contends the COMELEC First Division violated its own rules of procedure in
allowing immediate execution of its judgment despite the filing of his motion for
reconsideration with the COMELEC en banc. Batul points out that Section 2, Rule
19
[19]
of the COMELEC Rules of Procedure provides that the filing of a motion for
reconsideration that is not pro forma, suspends the execution or implementation of the
decision. Further, Section 5 of Rule 19
[20]
also provides that the COMELEC Division
shall, within two days from the filing of the motion for reconsideration, certify the case to
the COMELEC en banc. The COMELEC Division thus loses jurisdiction over the case
upon the filing of the aggrieved partys motion for reconsideration. Lastly, the
COMELEC cannot issue an order granting immediate execution of a judgment that has
not yet become final and executory citing Section 13(c), Rule 19
[21]
of the COMELEC
Rules of Procedure.
Batul likewise contends that Ramas v. COMELEC
[22]
and Santos v.
COMELEC
[23]
cited by the COMELEC First Division to justify execution pending appeal
are not applicable to the instant case since the election protests in those cases involved
municipal officials and were filed with the Regional Trial Court (RTC). It was logical to
apply Section 2, Rule 39 (Section 2) of the Rules of Court because the decision
sought to be executed was that of the RTC. On the other hand, the instant case
involves a city mayoralty position and the election protest is originally and exclusively
lodged with the COMELEC. Section 2 cannot be applied even in a suppletory way,
because the COMELEC Rules of Procedure expressly provide the proper
procedure. Under the COMELEC Rules of Procedure, the only ground that will validly
sustain execution of a decision by a COMELEC Division pending reconsideration is
when the motion for reconsideration is pro forma.
These contentions are unavailing.
It is true that present election laws are silent on the remedy of execution pending
appeal in election contests. However, neither Ramas nor Santos declared that such
remedy is exclusive to election contests involving elective barangay and municipal
officials as argued by Batul. Section 2 allowing execution pending appeal in the
discretion of the court applies in a suppletory manner to election cases, including those
involving city and provincial officials. Ramas itself explained:
As to election cases involving regional, provincial, and city officials, which fall
within the exclusive original jurisdiction of the COMELEC, Section 3 of Article IX-C
of the Constitution vests the COMELEC with the authority to promulgate its rules of
procedure in order to expedite disposition of election cases, including pre-
proclamation controversies. Additionally, Section 52(c), Article VII of the Omnibus
Election Code empowers the COMELEC to promulgate rules and regulations
implementing the provisions of the Code or other laws which it is required to enforce
and administer. Accordingly, the COMELEC promulgated the COMELEC Rules of
Procedure. Section 1 of Rule 41 thereof expressly provides that [i]n the absence
of any applicable provision in [said] Rules, the pertinent provisions of the Rules
of Court in the Philippines shall be applicable by analogy or in a suppletory
character and effect. (Emphasis supplied)
There is no reason why the public policy underlying the suppletory application of
Section 2 to obviate a hollow victory for the duly elected candidate as determined by
either the courts or the COMELEC should not apply with equal force to election
contests involving city and provincial officials.
[24]
Indeed, the number of constituents and
the territorial scope over which these officials govern underscore the importance of this
policy. Something had to be done to strike the death blow at the pernicious grab-the-
proclamation-prolong-the-protest technique often, if not invariably, resorted to by
unscrupulous politicians who would negate the peoples verdict against them and
persist in continuing in an office they very well know they have no legitimate right to
hold.
[25]

As we have held before, only a more compelling contrary policy consideration can
prevent the suppletory application of Section 2. The primary reason advanced by
Batul that Section 2 does not apply to election contests involving city, provincial and
regional officials, simply because these cases are originally cognizable by the
COMELEC cannot negate this public policy. Such a reason cannot frustrate or
further delay the assumption of public office by the lawful choice of the people as
determined by the COMELEC. Batul did not contest the good reasons cited by the
COMELEC First Division in granting immediate execution. Hence, we see no reason to
discuss the COMELECS findings on this matter.
In sum, the Court holds that the COMELEC First Division did not commit grave
abuse of discretion in issuing the assailed orders. Grave abuse of discretion implies
capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or
arbitrary and despotic exercise of power because of passion or personal hostility. The
grave abuse of discretion must be so patent and gross as to amount to an evasion or
refusal to perform a duty enjoined by law.
[26]
This does not obtain in the instant petitions.
WHEREFORE, the petitions are DISMISSED for lack of merit.
SO ORDERED.
Davide, Jr., C.J., Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-
Gutierrez, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga,
JJ., concur.
Puno, J., on leave.



[1]
Under Rule 65 of the 1997 Rules of Civil Procedure.
[2]
Erroneously designated as Second Division in Fernando U. Batuls petition in G.R. No. 157687.
[3]
Rollo of G.R. No. 157687, pp. 25-28.
[4]
Ibid., pp. 29-31.
[5]
Rollo of G.R. No. 158959, pp. 43-59.
[6]
Ibid., pp. 32-36.
[7]
Rollo of G.R. No. 157687, pp. 25-28.
[8]
Ibid., pp. 29-31.
[9]
G.R. No. 130831, 10 February 1998, 286 SCRA 189.
[10]
Gementiza v. COMELEC, G.R. No. 140884, 6 March 2001, 353 SCRA 724.
[11]
Barroso v. Hon. Ampig, Jr., 385 Phil. 237 (2000).
[12]
Gementiza, supra, see note 10.
[13]
Melendres, Jr. v. COMELEC, 377 Phil. 275 (1999).
[14]
Ibid.
[15]
Sec. 181. Official ballots Ballots for national and local offices shall be of uniform size and color and
shall be provided at public expense. They shall be printed on paper with watermarks or ballot
paper from ordinary paper. Each ballot shall be in the shape of a strip with stub and detachable
coupon containing the serial number of the ballot, and a space for the thumb mark of the voter on
the detachable coupon. It shall bear at the top on the middle portion thereof the coat of arms of
the Republic of the Philippines, the words Official Ballot, the name of the city or municipality and
province in which the election is held, the date of the election, and the following notice: Fill out
this ballot secretly inside the voting booth. Do not put any distinctive mark on any part of this
ballot.
[16]
Rollo of G.R. No. 158959, pp. 43-59.
[17]
Bocobo v. COMELEC, G.R. No. 94173, 21 November 1990, 191 SCRA 576.
[18]
Ibid.
[19]
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 (5) days from the promulgation thereof. Such
motion, if not pro forma, suspends the execution or implementation of the decision, resolution,
order or ruling.
[20]
Sec. 5. How Motion for Reconsideration Disposed Of. Upon the filing of a motion to reconsider a
decision, resolution, order, or ruling of a Division, the Clerk of Court concerned shall, within
twenty-four (24) hours from the filing thereof, notify the presiding Commissioner. The latter shall
within two (2) days thereafter certify the case to the Commission en banc.
[21]
Sec. 13(c). Unless a motion for reconsideration is seasonably filed, a decision or resolution of a
Division shall become final and executory after the lapse of five (5) days in Special actions and
Special cases and after fifteen (15) days in all other actions or proceedings, following its
promulgation.
[22]
Supra, see note 9.
[23]
G.R. No. 155618, 26 March 2003.
[24]
Navarosa v. COMELEC, G.R. No. 157957, 18 September 2003.
[25]
Gahol v. Riodique, G.R. No. L-40415, 27 June 1975, 64 SCRA 494.
[26]
Navarosa, supra, see note 24.

Today is Wednesday, July 17, 2013

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 171952 March 8, 2007
DIEGO T. LIM, Petitioner,
vs.
COMMISSION ON ELECTIONS, HON. ELVIE P. LIM (Presiding Judge, Regional Trial Court, Branch I, Borongan, Eastern
Samar), and FRANCISCO C. ADALIM, Respondents.

D E C I S I O N
SANDOVAL-GUTIERREZ, J .:
For our resolution is the instant Petition for Certiorari under Rule 64 of the 1997 Rules of Civil Procedure, as amended, assailing
the Resolution
1
dated March 8, 2006 rendered by the Commission on Elections (COMELEC) En Banc in SPR No. 23-2005.
Diego T. Lim, petitioner, and Francisco C. Adalim, private respondent, were candidates for mayor in Taft, Eastern Samar during
the May 10, 2004 national and local elections.
On May 12, 2004, the Municipal Board of Canvassers of Taft proclaimed petitioner as the duly elected mayor with a lead of 45
votes.
Private respondent then filed with the Regional Trial Court, Branch 1, Borongan, Eastern Samar, presided by respondent Judge
Elvie P. Lim, an election protest against petitioner, docketed as EPC No. 01-2004. Private respondent alleged that irregularities
attended the canvassing of ballots in 35 precincts within the municipality.
Petitioner filed a motion to dismiss the election protest on the ground that private respondent failed to pay the exact amount of
docket and other legal fees prescribed by the COMELEC, but the motion was denied. His motion for reconsideration was likewise
denied.
Subsequently, petitioner filed with the COMELEC Second Division a petition for prohibition and injunction praying that the trial
court be enjoined from hearing respondents election protest. The petition was docketed as SPR No. 50-2004.
On February 9, 2005, the COMELEC Second Division issued a Resolution dismissing the petition for prohibition and injunction.
Petitioner seasonably filed with the COMELEC En Banc a motion for reconsideration.
Meanwhile, upon private respondents motion, respondent Judge directed the parties to proceed with the photocopying of
contested ballots and to formally offer their evidence in writing on or before March 4, 2005.
Subsequently, respondent Judge issued an Order setting on July 4, 2005 the promulgation of her Decision in the election protest.
This prompted petitioner to file with the COMELEC En Banc an urgent motion for the issuance of a status quo order.
In an Order dated July 1, 2005, the COMELEC En Banc granted petitioners motion for reconsideration of the Resolution of the
COMELEC Second Division dismissing his petition for prohibition and injunction and directed the trial court to defer any action on
the pending election protest "until the case is finally resolved by this Commission." However, on August 2, 2005, the COMELEC
En Banc issued another Resolution, this time denying petitioners motion for reconsideration of the Resolution of the COMELEC
Second Division dismissing his petition for prohibition and injunction.
Three days thereafter, or on August 5, 2005, respondent Judge promulgated her Decision in the election protest declaring private
respondent the winning candidate in the May 10, 2004 mayoralty race in Taft, Eastern Samar with a lead of 456 votes as against
petitioner. Thereupon, petitioner filed a notice of appeal.
For his part, private respondent filed a motion for execution pending appeal. It was set for hearing on August 11, 2005. An
opposition thereto was filed by petitioner.
On August 11, 2005, the trial court issued a Special Order granting private respondents motion for execution pending appeal. On
the same date, the sheriff implemented the writ of execution.
Immediately, petitioner filed with the COMELEC Second Division a Petition for Certiorari with prayer for a Writ of Preliminary
Injunction and Temporary Restraining Order or Status Quo Order, docketed as SPR No. 23-2005, alleging that the trial court
acted with grave abuse of discretion in granting private respondents motion for execution pending appeal.
The COMELEC Second Division, in a Resolution dated October 10, 2005, denied the petition for lack of merit.
Petitioner then filed with the COMELEC En Banc a motion for reconsideration, but it was denied in a Resolution dated March 8,
2006.
Petitioner, in his petition before us, contends that the trial court committed grave abuse of discretion when it promulgated its
Decision despite the Order of the COMELEC En Banc of July 1, 2005 directing the said trial court to defer any action on the
election protest "until the case is finally resolved by this Commission."
Petitioner should have remembered that on August 2, 2005, the COMELEC En Banc issued a Resolution denying his motion for
reconsideration of the Resolution of its Second Division dismissing his petition for prohibition and injunction. Thus, this time, there
was no more obstacle for the trial court to promulgate its Decision since the COMELEC En Banc had denied his petition for
prohibition and injunction.
As to petitioners other contention that the trial court committed grave abuse of discretion by granting private respondents motion
for execution pending appeal, the same lacks merit.
Before granting an execution pending appeal in election cases, the following requisites must concur: (1) there must be a motion
by the prevailing party with notice to the adverse party; (2) there must be "good reasons" for the execution pending appeal; and
(3) the order granting execution pending appeal must state the good reasons.
2

In Fermo v. Comelec,
3
we held that the paramount consideration for a valid exercise of discretion to allow execution pending
appeal is the existence of good reasons which must be stated in a special order. The following constitute good reasons and a
combination of two or more of these will suffice to grant execution pending appeal: (1) public interest involved or will of the
electorate; (2) the shortness of the remaining term of the contested office; and (3) the length of time that the election contest has
been pending.
As correctly found by the trial court, the grant of the execution pending appeal is justified considering the presence of these good
reasons: the public interest or will of the electorate, as well as the shortness of the remaining term of the contested office, thus:
Examination of the motion for execution pending appeal with the opposition thereto, indeed reveals that the motion for execution
pending appeal is with merit. There being, therefore, good reasons to grant the same, taking into consideration that this involves
public interest which will be better served and it would give meaning to the electoral will in Taft, Eastern Samar, if their chosen
Mayor, the protestant herein, should immediately sit as Mayor and govern them, as the one being found to be the true winner in
the mayoralty race for Taft, Eastern Samar and should have been sitting as such from July 1, 2004 to the present but was not
able to sit; that as of today, more than one-third of the very short term of office of three (3) years has already expired or lapsed
(as of today, barely two (2) months is left on the tenure of the Mayor of Taft, Eastern Samar); and, further, depriving the herein
protestant the assumption of the duties and functions of the Office of the Mayor of Taft, Eastern Samar will only resurrect the
evils that the Court has long sought to contain, the "grab-the-proclamation-prolong-the-protest" technique, which route herein
protestee is now taking.
4

In fine, the COMELEC acted within the confines of its authority in issuing the assailed Resolution.
WHEREFORE, we DENY the instant petition. Costs against petitioner.
SO ORDERED.
ANGELINA SANDOVAL-GUTIERREZ
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice
CONSUELO YNARES-SANTIAGO
Asscociate Justice
ANTONIO T. CARPIO
Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ
Asscociate Justice
RENATO C. CORONA
Associate Justice
CONCHITA CARPIO MORALES
Asscociate Justice
(On sick leave)
ROMEO J. CALLEJO, SR.
Associate Justice
ADOLFO S. AZCUNA
Asscociate Justice
DANTE O. TINGA
Associate Justice
MINITA V. CHICO-NAZARIO
Asscociate Justice
CANCIO C. GARCIA
Associate Justice
PRESBITERO J. VELASCO, JR.
Asscociate Justice
(No part)
ANTONIO EDUARDO B. NACHURA
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
1
Annex "A" of the petition, Rollo, pp. 30-33.
2
Alvarez v. Comelec, G.R. No. 142527, March 1, 2001, 353 SCRA 434, 438.
3
G.R. No. 140179, March 13, 2000, 328 SCRA 52, 57.
4
Annex "L" of the petition, Rollo, p. 214.

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 174263 January 24, 2007
JOSE TORRES, Petitioner,
vs.
ABELARDO M. ABUNDO, SR. and COMMISSION ON ELECTIONS, Respondents.
D E C I S I O N
YNARES-SANTIAGO, J .:
This is a petition for certiorari of the Commission on Elections ("COMELEC") En Bancs Resolution
1
dated August 18, 2006
denying petitioner Jose Torres motion for reconsideration of the COMELEC First Divisions Resolution dated May 6, 2006.
2
The
COMELEC First Divisions Resolution dismissed Torres petition and lifted its Order
3
dated January 13, 2006 directing Torres to
continue performing his functions as Mayor of the Municipality of Viga, Catanduanes.
The following are the facts:
Petitioner Jose Torres and respondent Abelardo Abundo, Sr. were candidates for mayor of Viga, Catanduanes in the May 10,
2004 elections. On May 11, 2004, the Municipal Board of Canvassers proclaimed Torres as the duly elected mayor.
Claiming that irregularities attended the canvassing of ballots in 17 precincts, respondent filed an election protest docketed as
Election Case No. 48
4
in the Regional Trial Court, Branch 42, Virac, Catanduanes. Petitioner, who also claimed that canvassing
irregularities prejudiced him, filed a counter-protest in the same case impugning the results in 12 precincts.
On November 14, 2005, the trial court rendered judgment
5
in favor of respondent. It found that respondent obtained 4,230 votes
over petitioners 4,121 votes. Thus, the trial court declared respondent the elected mayor of Viga, Catanduanes and annulled the
earlier proclamation of petitioner. The dispositive portion of the Decision provides:
WHEREFORE, the Court finds that the protestant ABELARDO M. ABUNDO, SR., garnered a total of 4, 230 votes while the
protestee garnered a total of only 4, 121 votes during the May 10, 2004 elections for Mayor of Viga, Catanduanes and that
therefore, protestant ABELARDO M. ABUNDO, SR., was the duly elected Mayor of Viga, Catanduanes with a margin of 109
votes over the protestee. Accordingly, the protestee JOSE TORRES is hereby directed to VACATE and RELINQUISH said
position to the protestant ABELARDO ABUNDO, SR.
SO ORDERED.
6

Petitioner appealed to the COMELEC (EAC Case No. A-01- 2006). Respondent, for his part, filed with the trial court a motion
7
for
execution of the judgment pending appeal. In its Order of December 12, 2005, the trial court granted respondents motion,
subject to the filing of a P100,000 bond, to wit:
This Court hereby grants the protestants motion for execution pending appeal based on the following good reasons:
1. The Court has established the protestants right to the Office of the Mayor of Viga, Catanduanes. Having been
declared by the Court as the duly elected Mayor of Viga, Catanduanes with a margin of 109 votes over the
protestee, the protestant has the right to assume the Office of the Municipal Mayor of Viga, Catanduanes.
2. Barely eighteen (18) months is left to the tenure of the mayor of Viga, Catanduanes and the people have the
right to be governed by the true winner of the election and their chosen official.
8

x x x x
WHEREFORE, the Motion for Execution pending appeal is GRANTED. Let a writ of execution issue upon the posting of a bond
by the protestant in the amount of P100,000.00.
SO ORDERED.
9

A writ
10
was issued and served on petitioner who, without filing a motion for reconsideration of the trial courts Order, filed a
petition for certiorari with prayer for temporary restraining order/writ of preliminary injunction before the COMELEC. In an Order
dated December 21, 2005, the COMELECs-First Division granted petitioners prayer for the issuance of a Temporary Restraining
Order, thus:
In the interest of justice and so as not to render moot and academic the serious issues raised in the petition,
aTEMPORARY RESTRAINING ORDER is hereby issued effective immediately enjoining public respondent Honorable Genie G.
Gapas-Agbada, Presiding Judge of Branch 42, Regional Trial Court of Virac, Catanduanes, his agents or representatives or any
one acting for and in his behalf from executing the December 12, 2005 Order of the court a quo in Election Protest Case No. 49
entitled Abelardo M. Abundo, Sr. vs. Jose Torres, granting private respondents Motion for Execution Pending Appeal as well as
the Writ of Execution issued on the same day, pending consideration of the instant petition. In the event that Abelardo M.
Abundo, Sr. had already assumed office as Municipal Mayor of Viga, Catanduanes and commenced to perform his function
pursuant to the assailed order, a STATUS QUO ANTE ORDER is likewise issued directing the parties to observe the status prior
to the promulgation or issuance of the said Order. Accordingly, private respondent Abelardo M. Abundo, [Sr.] shall forthwith
vacate the post in favor of petitioner Jose Torres who shall continue to function as Mayor of Viga, Catanduanes until further
orders from this Commission (First Division).
11

After due proceedings, the COMELECs First Division issued an Order
12
dated January 13, 2006 granting petitioner Torres
application for the issuance of a writ of preliminary injunction and forthwith issued the same, directing him to continue performing
his functions as mayor of Viga, Catanduanes until final orders. On May 6, 2006, the COMELECs First Division issued the
Resolution
13
dismissing the petition, thus:
The instant petition should be dismissed.
Sec. 2 Rule 28 of the COMELEC Rules of Procedure provides for the manner of filing a petition for certiorari in this wise:
Sec. 2. Petition for Certiorari or Prohibition.
When any court or judge hearing election cases has acted without or in excess of its or his jurisdiction or with grave abuse of
discretion and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a petition for certiorari or prohibition with the Commission alleging the facts with certainty and praying
that judgment be rendered annulling or modifying the proceedings, as the law requires, of such court or judge, or commanding it
or him to desist from further proceeding with the action or matter specified therein, as the case may be.
The petition shall be accompanied by a certified true copy of the judgment or order subject thereof, together with all
pleadings and documents relevant and pertinent thereto. (Emphasis supplied)
The first paragraph requires that resort to a petition for certiorari can be made if there is no appeal or any plain, speedy and
adequate remedy in the ordinary course of law; and the second calls for the attachment to the petition of a certified true copy of
the order sought to be reversed or set aside. The herein petition did not meet both requirements.
First of all, the petitioner failed to fulfill an important procedural pre-requisite, which is the filing of a motion for reconsideration of
the assailed order.
A motion for reconsideration is a condition sine qua non for the filing of a petition for certiorari. Without said motion, the petition
cannot simply prosper. x x x
x x x x
For sure the rule above-cited is not without exceptions. The aggrieved party is not obliged to first file a motion for reconsideration
of the assailed resolution before filing a petition under Rule 65 of the Rules of Court, as amended where, (1) the question is
purely legal, (2) judicial intervention is urgent; (3) its application may cause great and irreparable damage; and (4) the
controversial acts violate due process. x x x
The herein petitioner, however, did not invoke any of these exceptions. x x x
x x x x
The petitioner, in contravention of the second paragraph of Section 2, Rule 28 of the COMELEC Rules of Procedure, failed to
attach to the petition a certified true copy or even just a copy of the order granting execution of the decision pending appeal,
which is ought to be set aside or nullified.
x x x x
In a long line of cases, the Supreme Court has ruled that where the petitioner failed to attach to his petition for certiorari the
certified true copies of the assailed judgment or order, the said petition should be dismissed. x x x
The same is true of the present petition.
x x x x
WHEREFORE, premises considered, the Commission (First Division) RESOLVED as it hereby RESOLVES to DISMISS the
herein petition.
ACCORDINGLY, the Order of the Commission First Division dated 13 January 2006 directing the petitioner Jose Torres to
continue peforming his functions as mayor of the municipality of Viga, Catanduanes until final orders from this Commission is
hereby LIFTED.
SO ORDERED.
14

Petitioner filed a motion for reconsideration but it was denied by the COMELEC En Banc in the assailed Resolution dated August
18, 2006. Hence this petition raising the following issues:
I. THE HONORABLE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT FAILED TO CONSIDER THAT PETITIONERS FAILURE TO FILE
THE MOTION FOR RECONSIDERATION IS DUE TO THE EXTREME URGENCY OF THE MATTER BROUGHT
ABOUT BY PRIVATE RESPONDENTS DESPERATE MOVE TO ASSUME THE POST AT ALL COST
II. THE HONORABLE COMMISSION GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR
EXCESS OF JUDRISDICTION WHEN IT DISMISSED THE PETITION ON TECHNICAL GROUND WHEN IT
HAS GIVEN DUE COURSE TO PETITIONERS PRAYER FOR TEMPORARY RESTRAINING ORDER AND
INJUNCTION
III. THE HONORABLE COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK
OR EXCESS OF JURISDICTION WHEN IT FAILED/REFUSED TO RULE ON THE ALLEGED "GOOD
REASONS" PROFERRED BY RESPONDENT IN HIS MOTION FOR EXECUTION PENDING APPEAL.
15

The petition lacks merit.
In Olanolan v. Commission on Elections,
16
this Court held:
The term "grave abuse of discretion," in its juridical sense, connotes, as Litton Mills, Inc. vs. Galleon Trader, Inc., and a host of
other cases teach, capricious, despotic, oppressive or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The
abuse must be of such degree as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law,
as where the power is exercised in an arbitrary and capricious manner by reason of passion and hostility. The word "capricious",
usually used in tandem with the term "arbitrary", conveys the notion of willful and unreasoning action. Thus, when seeking the
corrective hand of certiorari, a clear showing of caprice and arbitrariness in the exercise of discretion is imperative.
The COMELEC En Banc, in dismissing the petition for petitioners failure to comply with Sec. 2, Rule 28 of the COMELEC Rules
of Procedure, only followed its rules pursuant to its constitutional mandate to promulgate "rules of procedure to expedite
disposition of election cases."
17
The dismissal of Torres petition is warranted under the Rules and does not constitute grave
abuse of discretion. Strict compliance with the mandatory rules of procedure is the established norm and any relaxation of that
standard could only be an exception. Utter disregard of the rules cannot justly be rationalized by harping on the policy of liberal
construction.
18

Petitioner contends that his failure to file a motion for reconsideration of the trial courts December 12, 2005 Order falls under one
of the exceptions recognized by law. He cites the case of Government of the United States of America v. Purganan
19
where it
was held that, although as a general rule, a petition for certiorari will not prosper unless the inferior court has been given, through
a motion for reconsideration, a chance to correct the errors imputed to it, said motion may be dispensed with under certain
exceptions such as in case of urgency.
Petitioner Torres maintains that he opted to dispense with the filing of a motion for reconsideration of the trial courts Order since
by the time it is heard, the aforementioned Order would have been executed thereby causing him to be "forcibly" unseated as
mayor.lavvphil.net
We are not persuaded.
Petitioner Torres reliance on Purganan is misplaced. The factual milieu in said case is different from the instant petition. The said
case stemmed from the Government of the United States ("US Govt.") request to the Philippine Government to extradite Mark
B. Jimenez ("Jimenez") pursuant to an existing RP-US Extradition Treaty. The US Govt. proceeded directly to this Court via a
petition for certiorari under Rule 65 alleging grave abuse of discretion on the part of the Regional Trial Court of Manila, Branch 42
in issuing two Orders. The first Order set for hearing the US Govt.s application for the issuance of a warrant of arrest against
respondent Jimenez, while the second directed the issuance of such warrant and at the same time granted bail to Jimenez. In
proceeding directly to this Court without first filing a motion for reconsideration of the assailed orders, the US Govt. justified its
action in this wise:
Petitioner submits the following justifications for not filing a Motion for Reconsideration in the Extradition Court: "(1) the issues
were fully considered by such court after requiring the parties to submit their respective memoranda and position papers on the
matter and thus, the filing of a reconsideration motion would serve no useful purpose; (2) the assailed orders are a patent nullity,
absent factual and legal basis therefor; and (3) the need for relief is extremely urgent, as the passage of sufficient time
would give Jimenez ample opportunity to escape and avoid extradition; and (4) the issues raised are purely of
law."
20
(Emphasis supplied)
In the instant case however, petitioners claim of "extreme urgency" is untenable. When respondent, armed with a writ of
execution pending appeal duly issued by the trial court and accompanied by a Sheriff served the same to petitioner, respondent
was merely asserting his right as the duly elected Mayor of Viga pursuant to the trial courts Decision. The winning protestant,
bolstered by the Decision of the trial court declaring him the rightful occupant of the contested position will certainly be vigilant in
reclaiming the same from his rival. He cannot be expected to slumber on his hard-won right to assume the position he fought for.
Petitioner must have felt a deep sense of urgency when faced with eminent eviction from the post that he worked hard to obtain.
However, such sense of urgency is not the same as that contemplated by prevailing jurisprudence as one of the recognized
exceptions to the general rule with respect to the filing of a motion for reconsideration.
Petitioner is likewise mistaken in averring that, since the COMELEC granted his motion for issuance of TRO and Injunction, it
cannot thereafter dismiss his petition. A preliminary injunction is a provisional remedy, an adjunct to the main case subject to the
latters outcome. Its sole objective is to preserve the status quo until the trial court hears fully the merits of the case. Its primary
purpose is not to correct a wrong already consummated, or to redress an injury already sustained, or to punish wrongful acts
already committed, but to preserve and protect the rights of the litigant during the pendency of the case.
21

Finally, petitioner faults the trial courts finding that there are "good reasons" to order execution of its decision pending appeal.
To grant execution pending appeal in election protest cases, the following requisites must concur: (1) there must be a motion by
the prevailing party with notice to the adverse party; (2) there must be "good reasons" for the execution pending appeal; and (3)
the order granting execution pending appeal must state the "good reasons."
22

In Santos v. Commission on Elections,
23
the Court summarized the circumstances qualifying as "good reasons," and thereby
justifying execution pending appeal, thus:
The following constitute "good reasons," and a combination of two or more of them will suffice to grant execution pending appeal:
(1) the public interest involved or the will of the electorate; (2) the shortness of the remaining portion of the term of the contested
office; and (3) the length of time that the election contest has been pending. x x x
24

The trial court in the instant case, relying on the cases of Lindo v. Commission on Elections
25
and Gutierrez v. Commission on
Elections,
26
invoked two "good reasons" to justify its order allowing execution pending appeal. First, the order would "give
substance and meaning to the peoples mandate, especially since the RTC has established private respondents right to office."
Second, "barely eighteen (18) months is left to the tenure of the mayor of Viga, Catanduanes and the people have the right to be
governed by the true winner of the election and their chosen official." The COMELEC found these "good reasons" sufficient.
Finding the rulings of the COMELEC consistent with prevailing jurisprudence, we hold that the COMELEC did not commit grave
abuse of discretion in dismissing the petition for certiorari for being procedurally and substantially infirm. Grave abuse of
discretion implies capricious and whimsical exercise of judgment amounting to lack of jurisdiction, or arbitrary and despotic
exercise of power because of passion or personal hostility. The grave abuse of discretion must be so patent and gross as to
amount to an evasion or refusal to perform a duty enjoined by law.
27
This does not obtain in the instant case.
WHEREFORE, the instant petition is DISMISSED. The Resolution dated May 6, 2006 of the COMELEC First Division dismissing
the petition for lack of merit, and the Resolution dated August 18, 2006 of the COMELEC En Banc denying reconsideration
thereof, are AFFIRMED.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice
ANGELINA SANDOVAL-GUTIERREZ
Asscociate Justice
ANTONIO T. CARPIO
Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ
Asscociate Justice
RENATO C. CORONA
Associate Justice
CONCHITA CARPIO-MORALES
Asscociate Justice
ROMEO J. CALLEJO, SR.
Associate Justice
ADOLFO S. AZCUNA
Asscociate Justice
DANTE O. TINGA
Associate Justice
MINITA V. CHICO-NAZARIO
Asscociate Justice
CANCIO C. GARCIA
Associate Justice
PRESBITERO J. VELASCO, JR.
Asscociate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
1
Rollo, pp. 39-42. Penned by Commissioner Florentino A. Tuason, Jr. and concurred in by Chairman Benjamin S.
Abalos and Commissioners Romeo A. Brawner, Rene V. Sarmiento and Nicodemo T. Ferrer.
2
Id. at 27-37. Penned by Presiding Commissioner Resurreccion Z. Borra and concurred in by Commissioner
Rene V. Sarmiento.
3
Id. at 221-223.
4
Also referred to as Election Protest No. 49 in the Records.
5
Rollo, pp. 43-190. Penned by Judge Genie G. Gapas-Agbada.
6
Id. at 189-190.
7
Id. at 193-198.
8
Id. at 213.
9
Id. at 199-213.
10
Id. at 225-226.
11
Id. at 218.
12
Id. at 221-223.
13
Id. at 27-37.
14
Id. at 31-37.
15
Id. at 13-14.
16
G.R. No. 165491, March 31, 2005, 454 SCRA 807, 814.
17
CONSTITUTION, Art. IX(c), Sec. 3.
18
Castillo v. Court of Appeals, G.R. No. 159971, March 25, 2004, 426 SCRA 369, 375.
19
G.R. No. 148571, September 24, 2002, 389 SCRA 623.
20
Id. at 649.
21
Bustamante v. Court of Appeals, 430 Phil. 797, 808 (2002).
22
Alvarez v. Commission on Elections, G.R. No. 142527, March 1, 2001, 353 SCRA 434, 438-439.
23
G.R. No. 155618, March 26, 2003, 399 SCRA 611.
24
Id. at 621.
25
G.R. No. 127311, June 19, 1997, 274 SCRA 511.
26
G.R. No. 126298, March 25, 1997, 270 SCRA 413.
27
Navarosa v. Commission on Elections, G.R. No. 157957, September 18, 2003, 411 SCRA 369, 385-386.

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EN BANC
[G.R. No. 140179. March 13, 2000]
ROQUE FERMO, petitioner, vs. COMMISSION ON ELECTIONS and
MANUEL D. LAXINA SR., respondents.
D E C I S I O N
GONZAGA-REYES, J .:
Before us is a Petition for Certiorari (with prayer for the issuance of a restraining order
or a writ of preliminary injunction) assailing the Resolution
[1]
of the Commission on
Elections (COMELEC)
[2]
in SPR No. 4-99 entitled "MANUEL D. LAXINA, SR. vs. ROQUE
FERMO and Hon. AMANTE T. BANDAYREL" which annulled the order of the
Metropolitan Trial Court (MTC) of Quezon City, Branch 40 granting petitioner Roque
Fermos (FERMO) motion for execution pending appeal.
The factual antecedents of this case are as follows:
"Manuel Laxina, Sr. and Roque Fermo were both candidates for the
position of Punong Barangay, Barangay Batasan Hills, District II, Quezon
City, during the May 12, 1997 elections. The canvassed results showed
Laxina obtaining 1,957 votes and Fermo getting 1,712 votes. With a
plurality of 245 votes, Laxina was proclaimed duly elected to the post.
Subsequently, Fermo filed an election protest questioning the results in
four (4) clustered precincts of Capitol Bliss and twenty four (24) COA
precincts on the ground that the elections therein was attended by
massive fraud and serious irregularities.
Summoned to answer, protestee Laxina filed his responsive pleading
denying protestants allegations of anomalies and interposed the defense
that the conduct of the elections in Barangay Batasan Hills, District II,
Quezon City, from the special registration of voters, the campaign as well
as the voting and all the way to and until the counting, canvassing and
tallying of votes and the proclamation of the winning candidates during the
recent barangay elections has been generally honest, orderly and
peaceful, with the result of the elections being truly reflective of the will of
the electorate in the said barangay.'
Protestee then moved for the dismissal of the case on the ground that the
same was filed beyond the ten day period allowed by law. The Court ruled
that the case was seasonably filed, dismissed the motion to dismiss and
ordered a judicial recount. For the purpose, a revision committee was
constituted. After all the proceedings were terminated, the Court a quo
rendered its decision holding that Fermo won the contested post. The
Courts decision was promulgated on January 8, 1999. On the same date,
Laxina filed a Notice of Appeal manifesting his intent to elevate the case to
the Commission on Elections.
On January 12, 1999, Roque Fermo filed a Motion for Execution pending
Appeal grounded on the following averments:
That a decision was promulgated by the Honorable Court on
January 8, 1999 whereby the protestant Roque Fermo was
declared the winner in the May 12, 1997 Barangay Election
in Batasan Hills, District II by a plurality of ONE HUNDRED
THIRTY FOUR (134) votes over protestee, Manuel Laxina;
That there is good and special reason for the issuance of a
Writ of Execution Pending Appeal, i.e., the possibility that the
term of the contested seat might have expired already long
before the appeal has been decided;
On January 19, 1999, Laxina opposed the motion maintaining that the
Court had lost jurisdiction over the case because of the perfection of the
appeal.
On January 20, 1999, the Court issued an Order granting execution
pending appeal, the pertinent part of which reads:
The Court is clothed with discretionary power to execute
judgment pending appeal upon good reasons. The good
reasons mentioned in protestants Motion for Execution
Pending Appeal is the possibility that the term of the
contested seat of Barangay Captainship in Barangay
Batasan Hills, Quezon City might have expired long before
the appeal has been decided, considering also that the term
of the contested office had past almost midway of the whole
term. To do otherwise would not serve the end of justice."
[3]

Not satisfied with the decision of the MTC, respondent Manuel D. Laxina (LAXINA)
appealed to the COMELEC, which reversed the order of the MTC granting herein
petitioners motion for execution pending appeal. In reversing the MTC, the COMELEC
found that the possibility that the term of the contested seat might expire by the time the
appeal is decided was not a "good reason" to warrant execution pending appeal.
Hence this petition with prayer for the issuance of a temporary restraining order or a writ
of preliminary injunction where petitioner assigns the following errors:
"RESPONDENT COMELEC ACTED WITHOUT OR IN EXCESS OF
JURISDICTION AND/OR WITH GRAVE ABUSE OF DISCRETION
TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION -
A. IN HOLDING THAT THE REASON INVOKED BY PETITIONER IN HIS
MOTION FOR EXECUTION PENDING APPEAL, i.e., SHORTNESS OF
TERM IS INSUFFICIENT OR DOES NOT QUALIFY AS "GOOD
REASONS" TO WARRANT EXECUTION PENDING APPEAL.
B. IN ANNULLING THE JANUARY 20, 1999 ORDER OF MTC
GRANTING THE MOTION FOR EXECUTION PENDING APPEAL ON
THE GROUND THAT THE MTC COMMITTED GRAVE ABUSE OF
DISCRETION.
C. IN ORDERING PETITIONER TO CEASE AND DESIST FROM
FURTHER PERFORMING THE FUNCTIONS OF PUNONG BARANGAY
AND TO RELINQUISH THE SAME TO PRIVATE RESPONDENT
PENDING FINAL RESOLUTION OF THE LATTERS APPEAL, IN
EFFECT, GRANTING EXECUTION PENDING APPEAL IN FAVOR OF
PRIVATE RESPONDENT WITHOUT ANY MOTION THEREFOR."
[4]

In support of his petition, FERMO maintains that the COMELEC acted with grave abuse
of discretion in ruling that the possibility that the term of the contested seat might expire
long before the appeal is decided is not a good reason to warrant execution pending
appeal. FERMOs theory is that such reason taken together with the finding of the MTC
that the election was tainted with fraud and irregularities is sufficient reason to grant
execution pending appeal. He further argues that even assuming the COMELEC did not
err in annulling the order of execution, the COMELEC should not have ordered him to
relinquish the position as this is tantamount to granting execution pending appeal in
favor of LAXINA who did not file any such motion for that purpose nor cite any "good
reasons" therefor. Moreover, the order of COMELEC in effect prejudged the pending
appeal of FERMO considering that it ordered LAXINA to discharge the functions of
Punong Barangay pending the resolution of the appeal.
On the other hand, private respondent LAXINA agrees with the COMELECs conclusion
that the "shortness of term" is not "good reason" to justify execution pending appeal. He
argues that petitioners allegations are mere conjectures unsupported by any factual or
legal basis.
Public respondent COMELEC contends that since the term of Barangay officials was
extended to five (5) years or until 2002, the reliance of the petitioner on the "shortness
of term" to justify execution pending appeal is not justified. Moreover, the decision of the
MTC "contains questionable rulings which casts doubt on its validity." It was not clearly
established that petitioner in fact won.
[5]

The issue to be resolved in this petition is whether the COMELEC acted with grave
abuse of discretion amounting to lack of or excess of jurisdiction in annulling the order
of the MTC granting herein petitioners motion for execution pending appeal on the
ground that there were no "good reasons" for the issuance therefor.
We rule in the negative.
Execution of judgments pending appeal in election cases is governed by Section 2,
Rule 39
[6]
of the Rules of Court which reads:
"Sec. 2. Discretionary execution.
(a) Execution of a judgment or final order pending appeal. - On motion of
the prevailing party with notice to the adverse party filed in the trial court
while it has jurisdiction over the case and is in possession of either the
original record or the record on appeal, as the case may be, at the time of
the filing of such motion, said court may, in its discretion, order execution
of a judgment or final order even before the expiration of the period to
appeal.
After the trial court has lost jurisdiction, the motion for execution pending
appeal may be filed in the appellate court.
Discretionary execution may only issue upon good reasons to be stated in
a special order after due hearing."
A valid exercise of the discretion to allow execution pending appeal requires that it
should be based "upon good reasons to be stated in a special order." The following
constitute "good reasons" and a combination of two or more of them will suffice to grant
execution pending appeal: (1.) public interest involved or will of the electorate; (2.) the
shortness of the remaining portion of the term of the contested office; and (3.) the length
of time that the election contest has been pending (emphasis supplied).
[7]
In Lauban vs.
COMELEC
[8]
, this Court ruled that "shortness of the remaining term of office and posting
a bond are not good reasons for execution of a judgment pending appeal xxx".
[9]

In the present case, the petitioner relies solely on one ground to support his
petition i.e. "shortness of term". We find that the COMELEC committed no reversible
error in ruling that:
"Shortness of term, alone and by itself cannot justify premature
execution. It must be manifest in the decision sought to be executed that
the defeat of the protestee and the victory of the protestant has been
clearly established."
[10]

Moreover, Republic Act No. 8524,
[11]
which took effect in 1998, has extended the term of
office of barangay officials to five (5) years, and this negates, or removes the factual
basis for the finding of the MTC that the term of the contested office "had past almost
midway of the whole term." COMELEC Chairman Harriet Demetriou correctly points out
in her SEPARATE CONCURRING OPINION
[12]
that:
"Obviously, the court a quo erroneously assumed that the term of the
barangay captains is only for three (3) years. Hence, the conclusion that
the term of the contested office is almost in its midway. This, too, has no
leg to stand on.
It shall be worth stressing that Republic Act No. 8524 which took effect
sometime in 1998 extended the term of office of barangay officials to five
(5)years. Thus, it provides:
Section 1. Section 43 of Republic Act No. 1760, otherwise
known as the Local Government Code of 1991, is hereby
amended to read as follows:
SEC. 43. Term of Office. xxx xxxx
c the term of barangay officials and members of the
sangguniang kabataan shall be for five (5) years, which shall
begin after the regular election of barangay officials on the
second Monday of May 1997 xxx xxx.
Sec. 2. The provisions of this Act shall apply to the
incumbent barangay officials xxx xxxx.
Perfunctorily, the term of the contested office will expire in the year 2002
or more or less, three years from now. "
[13]

Petitioners argument that COMELECs nullification of the MTC order does not imply
that LAXINA is entitled to discharge the functions of Punong Brangay and that FERMO
should cease and desist from performing said functions is flawed. The order of the
COMELEC annulling the grant of execution pending appeal would be inutile if it did not
have the effect of authorizing LAXINA to discharge the functions of Punong Barangay
during the pendency of the appeal. When the COMELEC nullified the writ of execution
pending appeal in favor of FERMO, the decision of the MTC proclaiming FERMO as the
winner of the election was stayed
[14]
and the "status quo" or the last actual peaceful
uncontested situation preceding the controversy
[15]
was restored. Thus, the COMELEC
correctly ordered FERMO to cease and desist from performing the functions of Punong
Barangay considering that LAXINA was the proclaimed winner of the election prior to
FERMOs filing of the election protest. The order for FERMO to relinquish his post to
LAXINA pending final resolution of the appeal is a logical and necessary consequence
of the denial of execution pending appeal.
Finally, there is nothing in the COMELEC Resolution which shows that the COMELEC
made "conclusionary findings" which would in effect "pre-judge" the MTC decision itself.
The Resolution categorically stated that the COMELEC shall not attempt to resolve who
between LAXINA and FERMO has the right to occupy the contested seat for that
question will appropriately be settled in the pending appeal. Although the Resolution
cited certain "lapses patent on the decision itself" which "cast a cloud of uncertainty over
the victory of Fermo", the observation was made to stress that no other justification
other than the "shortness of term" would justify premature execution.
WHEREFORE, the instant petition is hereby DISMISSED for failure of the petitioner to
show that respondent Commission on Elections acted with grave abuse of discretion in
rendering the challenged Resolution dated September 16, 1999 in SPR No. 4-99.
Costs against petitioners.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Purisima, Buena, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Pardo, J., abroad on official business.



[1]
Rollo, pp. 32-44.
[2]
EN BANC composed of the ponente, Comm. Manolo B. Gorospe; and the members Chairman Harriet O.
Demetriou; Comm. Julio F. Desamito; Comm. Teresita Dy-Liacco Flores; Comm. Japal M. Guiani; Comm.
Luzviminda G. Tancangco; and Comm. Abdul Gani Marohombsar Al Hadji concurring.
[3]
COMELEC Resolution, pp. 1-3; Rollo, pp. 32-34.
[4]
Petition, pp. 10-11; Rollo, pp. 12-13.
[5]
Comment of Public Respondent, at pp. 3-4.
[6]
As amended by the 1997 Rules on Civil Procedure.
[7]
Ramas vs. Comelec, 286 SCRA 189 at p. 205 [1998].
[8]
G.R. No. 128473, Resolution dated August 26, 1997.
[9]
Ibid., at p. 3.
[10]
COMELEC Resolution, p. 5; Rollo, p. 36.
[11]
"AN ACT CHANGING THE TERM OF OFFICE OF BARANGAY OFFICIALS AND MEMBERS OF THE
SANGGUNIANG KABATAAN FROM THREE (3) YEARS TO FIVE (5) YEARS, AMENDING FOR THE
PURPOSE SECTION 43 OF REPUBLIC ACT NUMBERED SEVEN THOUSAND ONE HUNDRED SIXTY,
OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991, AND FOR OTHER PURPOSES"
[12]
Rollo, pp. 40-44.
[13]
Rollo, pp. 42-43.
[14]
Under Rule 39, 4 of the Rules of Court, only judgments in actions for injunction, receivership, accounting and
support are immediately executory and are not stayed by an appeal taken therefrom unless otherwise ordered by the
trial court.
[15]
Verzosa vs. CA, 299 SCRA 100 at p. 109 [1998].









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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 170702 June 16, 2006
INGATUN G. ISTARUL, Petitioner,
vs.
COMMISSION ON ELECTIONS AND PAMARAN T. MATURAN, Respondents.
D E C I S I O N
AUSTRIA-MARTINEZ, J .:
This resolves the petition for certiorari seeking to set aside the Resolution
1
of the First Division of the Commission on Elections
(COMELEC 1st Division) dated October 21, 2005 granting private respondents petition for certiorariand prohibition, and the
Resolution
2
of the Commission on Elections En Banc (COMELEC En Banc) dated December 12, 2005 affirming the
aforementioned Resolution of the COMELEC 1st Division.
A thorough scrutiny of the records reveals that the narration of the antecedent facts set forth in the COMELEC 1st Division
Resolution dated October 21, 2005 is undisputed; hence, the pertinent portions thereof are reproduced hereunder:
During the 2004 elections, Maturan [herein private respondent], Istarul [herein petitioner] as well Munap H. Pacio and Ahmad
Atahal ran for the position of mayor of the municipality of Tipo-Tipo, Basilan.
Maturan was eventually proclaimed by the Municipal Board of Canvassers as the duly elected mayor of Tipo-Tipo. Thereafter,
private respondent Istarul filed an election protest
3
case docketed Election Case No. 01-04. Pacio, another losing candidate,
also filed his protest case docketed as Election Case No. 26-04. Both cases were assigned to the public respondent
4
who, for
reason of consistency, decided them jointly. The dispositive portion of the joint decision dated August 10, 2005 is quoted as
follows:
"WHEREFORE, in view of all the foregoing, the court hereby ANNULS the proclamation of protestee dated May 15, 2004, and
DECLARES protestant Ingatun G. Istarul as the duly elected Mayor of the Municipality of Tipo-Tipo, Basilan, having obtained the
highest number of votes for the said office in the election held on May 10, 2004."
On the same date, August 10, 2005, petitioner filed his Notice of Appeal. The following day, August 11, 2004, private respondent
filed his Motion for Execution Pending Appeal. On August 17, 2005, petitioner filed his Opposition thereto. After the hearing,
specifically on August 22, 2005, public respondent issued its Special Order granting private respondents Motion. He also issued
a Writ of Execution on the same day.
On August 23, 2005, the instant petition was filed. On the same day, this Commission (First Division) issued a Temporary
Restraining/Status Quo Ante Order.
After the hearing, both parties filed their respective memoranda. Thereafter, the case was deemed submitted for resolution.
5

On October 21, 2005, the COMELEC 1st Division issued a Resolution holding that there are no good reasons to justify the
issuance of the Special Order granting execution pending appeal. The COMELEC 1st Division ruled that Judge Danilo Bucoys
failure to establish that public interest would be served; and that a mere statement about the length of time that the case had
been pending in the trial court do not support the issuance of said Order.
The COMELEC 1
st
Division further noted in its Resolution that Judge Bucoy failed to state in the Joint Decision dated August 10,
2005 his explanation for crediting certain ballots in favor of either of the parties, thus, violating the principle that a decision should
clearly show the basis for the judges rulings. It then concluded that the decision is seriously impaired and cannot be the source
of a valid execution pending appeal.
The dispositive portion of the Resolution of the COMELEC 1st Division dated October 21, 2005 reads as follows:
WHEREFORE, premises considered, the petition is hereby GRANTED. Accordingly, the Special Order and the Writ of Execution
issued by the public respondent, the Honorable Danilo Bucoy, dated August 22, 2005 are hereby REVERSED and SET ASIDE.
Private Respondent INGATARUN G. ISTARUL is directed to immediately cease and desist from performing his functions as
mayor of the municipality of Tipo-Tipo, Basilan. Petitioner PAMARAN MATURAN is restored to his position as Mayor of the same
municipality and instructed to perform his functions as such until the final determination of the appeal case he filed.
SO ORDERED.
6

Petitioner then filed a motion for reconsideration which was referred to the COMELEC En Banc. On December 12, 2005, it issued
a Resolution affirming the Resolution of the COMELEC 1st Division. The COMELEC En Banc reiterated that there were no good
reasons for the issuance of execution pending appeal because a final determination of the true will of the people would be had
only after the resolution of the appeal pending with the COMELEC 1st Division.
Aggrieved by the actions of the COMELEC 1st Division and the En Banc, petitioner then filed the present petition
for certiorari assailing said Tribunals Resolutions.
Petitioner prayed for the issuance of a temporary restraining order which this Court granted in its Resolution dated January 17,
2006. Thereafter, private respondent filed a motion to lift the temporary restraining order. On February 28, 2006, the Court issued
a Resolution dissolving the temporary restraining order because private respondent was able to prove that, at the time of the
filing of the petition, he was the one acting as Mayor of Tipo-Tipo, Basilan.
As grounds for allowance of the petition, it is alleged that:
5.1.1. The Comelec seriously erred in wantonly disregarding the jurisprudential rule on execution pending appeal.
5.1.2. The Comelec seriously erred in ignoring that rule that, as between two presumptive winners, the
proclamation made by the court prevails over that of the board of canvassers.
5.1.3. The Comelec seriously erred in not considering the fact that petitioner never filed a motion for
reconsideration with the trial court.
5.1.4. The assailed Resolution violated the right of the petitioner to procedural due process and the equal
protection clause since it never considered the basic issues raised by petitioner in his pleadings.
7

Private respondent, on the other hand, counters that the Joint Decision of Judge Bucoy dated August 10, 2005 is null and void
for failure of the trial court to state particular reasons for rejecting certain ballots and, as such, it should not be executed pending
appeal. He further argues that in this case, the filing of a motion for reconsideration with the trial court before filing his petition
for certiorari with the COMELEC could be dispensed with considering that the need for relief is extremely urgent.
It should be borne in mind that "unless the COMELEC is shown to have committed grave abuse of discretion, its decision will not
be interfered with by this Court."
8
In this case, petitioner fails to convince the Court that the COMELEC 1st Division and En
Banc committed grave abuse of discretion amounting to lack of jurisdiction.
It is clear from the discussion in the petition that what are assigned as errors of the COMELEC 1st Division and En Banc i.e.,
that the COMELEC erred in wantonly disregarding the jurisprudential rule on execution pending appeal; in ignoring that rule that,
as between two presumptive winners, the proclamation made by the court prevails over that of the board of canvassers; in not
considering the fact that private respondent did not file a motion for reconsideration before the trial court; and in not considering
the issues raised by petitioner in his pleadings - are merely alleged errors of judgment as they question the wisdom and legal
soundness of the COMELECs resolutions and not the jurisdiction of said body. In People v. Court of Appeals,
9
the Court
expounded on the function of the remedy of certiorari as follows:
As observed in Land Bank of the Philippines v. Court of Appeals, et al. "the special civil action for certiorari is a remedy designed
for the correction of errors of jurisdiction and not errors of judgment. The raison detre for the rule is when a court exercises its
jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error
is committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would
be a void judgment. In such a scenario, the administration of justice would not survive. Hence, where the issue or question
involved affects the wisdom or legal soundness of the decision not the jurisdiction of the court to render said
decision the same is beyond the province of a special civil action for certiorari. x x x
10
(Emphasis supplied)
Evidently, since the issues raised in this petition merely question the correctness of the COMELECs rulings, petitioner cannot
avail of the writ of certiorari.
Nevertheless, a close examination of the records reveals that petitioners allegations are baseless.
There is no showing whatsoever that the COMELEC disregarded the jurisprudential rule on execution pending appeal. On the
contrary, the COMELEC 1st Division and the COMELEC En Banc proceeded on the premise that, indeed, execution pending
appeal may be granted in election cases provided there are good reasons therefore as held in a long line of
cases.
11
Unfortunately, in this case, the COMELEC 1st Division and COMELEC En Bancfound the "good reasons" alleged by
petitioner and relied on by the trial court to be insufficient to justify the issuance of the special order granting execution pending
appeal.
Petitioner cites as one of the "good reasons" for execution pending appeal, the will of the electorate, based on the finding of the
trial court that he garnered the highest number of votes for the position of mayor of Tipo-Tipo, Basilan during the May 2004
elections. However, the COMELEC 1st Division, in its Resolution dated October 21, 2005, found the trial courts Joint Decision to
be "seriously impaired" for its (trial courts) failure to state any explanation as to its rulings regarding the crediting of votes in favor
of the candidates and the COMELEC concluded that "a decision suffering from grave infirmities cannot be a source of a valid
execution."
12

A perusal of the Joint Decision of the trial court, on its face, shows that the COMELECs observation that there was a total lack of
explanation for the trial courts rulings for crediting ballots or votes in favor of the candidates, is correct. Apparently, the supposed
victory of petitioner has not been clearly established. Hence, the COMELEC has a valid basis for not considering the supposed
will of the electorate as a "good reason" to allow execution pending appeal. Having such a basis for its ruling, the COMELEC
cannot be deemed to have gravely abused its discretion.
Verily, there is, as yet, no strong evidence that it is, indeed, the will of the electorate for herein petitioner to occupy the position of
mayor of Tipo-Tipo, Basilan, as said issue is still pending resolution in the appeal filed by private respondent before the
COMELEC.
Moreover, the length of time that the election protest has been pending, thus, leaving petitioner only 21 months as the remaining
portion of the term to serve as mayor, does not constitute "good reason" to justify execution pending appeal. The case of Fermo
v. Comelec,
13
which is closely analogous to the present case, is instructive. Therein, the Court stated thus:
"Shortness of term," alone and by itself cannot justify premature execution. It must be manifest in the decision sought to be
executed that the defeat of the protestee and the victory of the protestant has been clearly established.
14
(Emphasis supplied)
The COMELEC also did not ignore the rule that, as between two presumptive winners, the proclamation made by the trial court
prevails over that of the board of canvassers. However, after finding that the trial courts ruling regarding which candidate
garnered the highest number of votes is unreliable, the COMELEC applied the ruling inCamlian v. Comelec,
15
where the Court
agreed with the COMELEC that:
x x x while it is true that when an election protest is filed the protestee is only considered a presumptive winner until the protest is
resolved, in the same way, when a protestant is adjudged the winner by a court of law but the case is on appeal with the
Commission, such appeal likewise makes the protestant a presumptive winner and, unless meritorious grounds exist to
execute judgment pending appeal, it is illogical to replace a presumptive winner proclaimed by a board of canvassers,
by another presumptive winner so declared by a court. It needs no explanation that when a protestant is installed as a
winner pending appeal, that in itself is already disruptive of the government service. How much more if the protestee
wins the appeal in which case he will have to be reinstalled again to the office which he was forced to
vacate?
16
(Emphasis supplied)
With regard to petitioners asseveration that the COMELEC did not consider the circumstance that private respondent did not file
a motion for reconsideration of the Special Order before filing the petition for certiorari, the Court finds the same unmeritorious.
Note that the COMELEC 1st Division pointed out that "a decision suffering from grave infirmities cannot be a source of a valid
execution."
17
Evidently, the COMELEC found the case to be one of those falling within the exceptions to the general rule that the
filing of which is an indispensable condition to the filing of a special civil action for certiorari. Some of the exceptions to this
general rule are: (1) when public interest is involved, (2) the matter is one of urgency, and (3) the order is a patent nullity.
18
Since
the COMELEC found the Joint Decision of the trial court to be seriously impaired, it then concluded that the Special Order
granting execution pending appeal is invalid or a patent nullity; and that the trial court was then acting with grave abuse of
discretion amounting to lack of jurisdiction when it issued said Special Order. Again, the Court finds no grave abuse of discretion
committed by the COMELEC in ruling so.
Petitioner tries to impress upon the Court that the COMELEC acted with bias. He cites the speed with which the COMELEC 1st
Division issued and served the Temporary Restraining Order on the trial court in Basilan. However, petitioner failed to submit any
proof of the alleged irregularity that the bailiff of the COMELEC was already in Basilan in the morning of August 24, 2005 to serve
the TRO, while the order for him to proceed to Basilan was released only at noon of August 24, 2005.
Petitioner also questions the fact that the Resolution of the COMELEC 1st Division dated October 21, 2005 was promulgated
merely four days after the submission of the parties memoranda. This circumstance does not at all show bias or grave abuse of
discretion. Rather, it shows that the COMELEC is upholding its mandate to resolve issues before it with dispatch.
Lastly, petitioner questions why the COMELEC did not dismiss the petition filed by private respondent despite the fact that private
respondent had allegedly been convicted of nepotism and violation of Section 4 (c ) of Republic Act No. 6713, otherwise known
as the "Code of Conduct and Ethical Standards for Public Officials and Employees." Thus, argues petitioner, private respondent
had lost the legal personality to pursue the case against petitioner. Private respondent was, however, able to present a Joint
Order
19
of the Office of the Ombudsman dated January 11, 2006 stating that herein private respondents motion for
reconsideration is submitted for resolution. This proves that the judgment of the Ombudsman has not yet become final and
executory as private respondents motion for reconsideration of the resolution of the Ombudsman is still pending. Furthermore,
this issue is better addressed in the appeal before the COMELEC, as the only issue in this petition for certiorari is whether or not
the COMELEC gravely abused its discretion by setting aside the trial courts Special Order allowing execution pending appeal.
In sum, petitioner has not sufficiently proven that the COMELEC acted with bias or capricious and whimsical arbitrariness to
warrant the issuance of the writ of certiorari.
WHEREFORE, the petition is DISMISSED for lack of merit. Costs against petitioner.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
REYNATO S. PUNO
Associate Justice
LEONARDO A. QUISUMBING
Asscociate Justice
(On Leave)
CONSUELO YNARES-SANTIAGO
Associate Justice

ANGELINA SANDOVAL-GUTIERREZ
Asscociate Justice
ANTONIO T. CARPIO
Associate Justice
RENATO C. CORONA
Asscociate Justice
CONCHITA CARPIO-MORALES
Associate Justice
ROMEO J. CALLEJO, SR.
Asscociate Justice
ADOLFO S. AZCUNA
Associate Justice
DANTE O. TINGA
Asscociate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
CANCIO C. GARCIA
Asscociate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the opinion of the Court.
ARTEMIO V. PANGANIBAN
Chief Justice

Footnotes
1
Per Curiam
2
Per Curiam
3
With the Regional Trial Court, Branch 2, Isabela City, Basilan.
4
Judge Danilo Bucoy.
5
Rollo, pp. 55-56.
6
Rollo, pp. 60-61.
7
Rollo, p. 11.
8
Sarangani v. Commission on Elections, G.R. Nos. 155560-62, November 11, 2003, 415 SCRA 614, 623.
9
G.R. No. 142051, February 24, 2004, 423 SCRA 605.
10
Id. at 613.
11
Navarosa v. Comelec, G.R. No. 157957, September 18, 2003, 411 SCRA 369; Fermo v. Comelec, 384 Phil.
584 (2000); Ramas v. Comelec, 349 Phil. 857 (1998); Garcia v. De Jesus, G.R. No. 88158, March 4, 1992, 206
SCRA 779; Gahol v. Riodique, No. L-40415, June 27, 1975, 64 SCRA 494.
12
Rollo, p. 60.
13
384 Phil 584 (2000).
14
Id. at 592.
15
338 Phil. 474 (1997).
16
Id. at 765.
17
Rollo, p. 60.
18
Far East Bank and Trust Co. v. Toh, Sr., 452 Phil. 734 (2003).
19
Rollo, pp. 144-145.

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Today is Wednesday, July 17, 2013

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 179817 June 27, 2008
ANTONIO F. TRILLANES IV, petitioner,
vs.
HON. OSCAR PIMENTEL, SR., IN HIS CAPACITY AS PRESIDING JUDGE, REGIONAL TRIAL COURT- BRANCH 148,
MAKATI CITY; GEN. HERMOGENES ESPERON, VICE ADM. ROGELIO I. CALUNSAG, MGEN. BENJAMIN DOLORFINO,
AND LT. COL. LUCIARDO OBEA, respondents.
D E C I S I O N
CARPIO MORALES, J .:
At the wee hours of July 27, 2003, a group of more than 300 heavily armed soldiers led by junior officers of the Armed Forces of
the Philippines (AFP) stormed into the Oakwood Premier Apartments in Makati City and publicly demanded the resignation of the
President and key national officials.
Later in the day, President Gloria Macapagal Arroyo issued Proclamation No. 427 and General Order No. 4 declaring a state of
rebellion and calling out the Armed Forces to suppress the rebellion.
1
A series of negotiations quelled the teeming tension and
eventually resolved the impasse with the surrender of the militant soldiers that evening.
In the aftermath of this eventful episode dubbed as the "Oakwood Incident," petitioner Antonio F. Trillanes IV was charged, along
with his comrades, with coup detat defined under Article 134-A of the Revised Penal Code before the Regional Trial Court (RTC)
of Makati. The case was docketed as Criminal Case No. 03-2784, "People v. Capt. Milo D. Maestrecampo, et al."
Close to four years later, petitioner, who has remained in detention,
2
threw his hat in the political arena and won a seat in the
Senate with a six-year term commencing at noon on June 30, 2007.
3

Before the commencement of his term or on June 22, 2007, petitioner filed with the RTC, Makati City, Branch 148, an "Omnibus
Motion for Leave of Court to be Allowed to Attend Senate Sessions and Related Requests"
4
(Omnibus Motion). Among his
requests were:
(a) To be allowed to go to the Senate to attend all official functions of the Senate (whether at the Senate or
elsewhere) particularly when the Senate is in session, and to attend the regular and plenary sessions of the
Senate, committee hearings, committee meetings, consultations, investigations and hearings in aid of legislation,
caucuses, staff meetings, etc., which are normally held at the Senate of the Philippines located at the GSIS
Financial Center, Pasay City (usually from Mondays to Thursdays from 8:00 a.m. to 7:00 p.m.);
(b) To be allowed to set up a working area at his place of detention at the Marine Brig, Marine Barracks Manila,
Fort Bonifacio, Taguig City, with a personal desktop computer and the appropriate communications equipment
(i.e., a telephone line and internet access) in order that he may be able to work there when there are no sessions,
meetings or hearings at the Senate or when the Senate is not in session. The costs of setting up the said working
area and the related equipment and utility costs can be charged against the budget/allocation of the Office of the
accused from the Senate;
(c) To be allowed to receive members of his staff at the said working area at his place of detention at the Marine
Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City, at reasonable times of the day particularly during
working days for purposes of meetings, briefings, consultations and/or coordination, so that the latter may be able
to assists (sic) him in the performance and discharge of his duties as a Senator of the Republic;
(d) To be allowed to give interviews and to air his comments, reactions and/or opinions to the press or the media
regarding the important issues affecting the country and the public while at the Senate or elsewhere in the
performance of his duties as Senator to help shape public policy and in the light of the important role of the
Senate in maintaining the system of checks and balance between the three (3) co-equal branches of
Government;
(e) With prior notice to the Honorable Court and to the accused and his custodians, to be allowed to receive, on
Tuesdays and Fridays, reporters and other members of the media who may wish to interview him and/or to get
his comments, reactions and/or opinion at his place of confinement at the Marine Brig, Marine Barracks Manila,
Fort Bonifacio, Taguig City, particularly when there are no sessions, meetings or hearings at the Senate or when
the Senate is not in session; and
(f) To be allowed to attend the organizational meeting and election of officers of the Senate and related activities
scheduled in the morning (9:00 or 10:00 a.m.) of 23 July 2007 at the Senate of the Philippines located at the
GSIS Financial Center, Pasay City.
5

By Order of July 25, 2007,
6
the trial court denied all the requests in the Omnibus Motion. Petitioner moved for reconsideration in
which he waived his requests in paragraphs (b), (c) and (f) to thus trim them down to three.
7
The trial court just the same denied
the motion by Order of September 18, 2007.
8

Hence, the present petition for certiorari to set aside the two Orders of the trial court, and for prohibition andmandamus to (i)
enjoin respondents from banning the Senate staff, resource persons and guests from meeting with him or transacting business
with him in his capacity as Senator; and (ii) direct respondents to allow him access to the Senate staff, resource persons and
guests and permit him to attend all sessions and official functions of the Senate. Petitioner preliminarily prayed for the
maintenance of the status quo ante of having been able hitherto to convene his staff, resource persons and guests
9
at the Marine
Brig.
Impleaded as co-respondents of Judge Oscar Pimentel, Sr. are AFP Chief of Staff, Gen. Hermogenes Esperon (Esperon);
Philippine Navys Flag Officer-in-Command, Vice Admiral Rogelio Calunsag; Philippine Marines Commandant, Major Gen.
Benjamin Dolorfino; and Marine Barracks Manila Commanding Officer, Lt. Col. Luciardo Obea (Obea).
Petitioner later manifested, in his Reply of February 26, 2008, that he has, since November 30, 2007, been in the custody of the
Philippine National Police (PNP) Custodial Center following the foiled take-over of the Manila Peninsula Hotel
10
the day before or
on November 29, 2007.
Such change in circumstances thus dictates the discontinuation of the action as against the above-named military officers-
respondents. The issues raised in relation to them had ceased to present a justiciable controversy, so that a determination
thereof would be without practical value and use. Meanwhile, against those not made parties to the case, petitioner cannot ask
for reliefs from this Court.
11
Petitioner did not, by way of substitution, implead the police officers currently exercising custodial
responsibility over him; and he did not satisfactorily show that they have adopted or continued the assailed actions of the former
custodians.
12

Petitioner reiterates the following grounds which mirror those previously raised in his Motion for Reconsideration filed with the
trial court:
I.
THE JURISPRUDENCE CITED BY THE HONORABLE COURT A QUO IS CLEARLY INAPPLICABLE TO THE
INSTANT CASE BECAUSE OF THE FOLLOWING REASONS:
A.
UNLIKE IN THIS CASE, THE ACCUSED IN THE JALOSJOS CASE WAS ALREADY CONVICTED AT
THE TIME HE FILED HIS MOTION. IN THE INSTANT CASE, ACCUSED/PETITIONER HAS NOT BEEN
CONVICTED AND, THEREFORE, STILL ENJOYS THE PRESUMPTION OF INNOCENCE;
B.
THE ACCUSED IN THE JALOJOS (SIC) CASE WAS CHARGED WITH TWO (2) COUNTS OF
STATUTORY RAPE AND SIX (6) COUNTS OF ACTS OF LASCIVIOUSNESS, CRIMES INVOLVING
MORAL TURPITUDE. HEREIN ACCUSED/PETITIONER IS CHARGED WITH THE OFFENSE OF
"COUP DETAT", A CHARGE WHICH IS COMMONLY REGARDED AS A POLITICAL OFFENSE;
C.
THE ACCUSED IN THE JALOSJOS CASE ATTEMPTED TO FLEE PRIOR TO BEING ARRESTED. THE
ACCUSED/ PETITIONER VOLUNTARILY SURRENDERED TO THE AUTHORITIES AND AGREED TO
TAKE RESPONSIBILITY FOR HIS ACTS AT OAKWOOD;
II.
GEN. ESPERON DID NOT OVERRULE THE RECOMMENDATION OF THE MARINE BRIGS COMMANDING
OFFICER TO ALLOW PETITIONER TO ATTEND THE SENATE SESSIONS;
III.
ACCUSED/PETITIONER SUBMITS THAT THE FACT THAT THE PEOPLE, IN THEIR SOVEREIGN CAPACITY,
ELECTED HIM TO THE POSITION OF SENATOR OF THE REPUBLIC PROVIDES THE PROPER LEGAL
JUSTIFICATION TO ALLOW HIM TO WORK AND SERVE HIS MANDATE AS A SENATOR;
- AND -
IV.
MOREOVER, THERE ARE ENOUGH PRECEDENTS TO ALLOW LIBERAL TREATMENT OF DETENTION
PRISONERS WHO ARE HELD WITHOUT BAIL AS IN THE CASE OF FORMER PRESIDENT JOSEPH "ERAP"
ESTRADA AND FORMER ARMM GOV. NUR MISUARI.
13

The petition is bereft of merit.
In attempting to strike a distinction between his case and that of Jalosjos, petitioner chiefly points out that former Rep. Romeo
Jalosjos (Jalosjos) was already convicted, albeit his conviction was pending appeal, when he filed a motion similar to petitioners
Omnibus Motion, whereas he (petitioner) is a mere detention prisoner. He asserts that he continues to enjoy civil and political
rights since the presumption of innocence is still in his favor.
Further, petitioner illustrates that Jalosjos was charged with crimes involving moral turpitude, i.e., two counts of statutory rape
and six counts of acts of lasciviousness, whereas he is indicted for coup detat which is regarded as a "political offense."
Furthermore, petitioner justifies in his favor the presence of noble causes in expressing legitimate grievances against the
rampant and institutionalized practice of graft and corruption in the AFP.
In sum, petitioners first ground posits that there is a world of difference between his case and that of Jalosjos respecting the type
of offense involved, the stage of filing of the motion, and other circumstances which demonstrate the inapplicability of Jalosjos.
14

A plain reading of. Jalosjos suggests otherwise, however.
The distinctions cited by petitioner were not elemental in the pronouncement in Jalosjos that election to Congress is not a
reasonable classification in criminal law enforcement as the functions and duties of the office are not substantial distinctions
which lift one from the class of prisoners interrupted in their freedom and restricted in liberty of movement.
15

It cannot be gainsaid that a person charged with a crime is taken into custody for purposes of the administration of justice. No
less than the Constitution provides:
All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is
strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be
provided by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpusis
suspended. Excessive bail shall not be required.
16
(Underscoring supplied)
The Rules also state that no person charged with a capital offense,
17
or an offense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when evidence of guilt is strong, regardless of the stage of the criminal action.
18

That the cited provisions apply equally to rape and coup detat cases, both being punishable by reclusion perpetua,
19
is beyond
cavil. Within the class of offenses covered by the stated range of imposable penalties, there is clearly no distinction as to the
political complexion of or moral turpitude involved in the crime charged.
In the present case, it is uncontroverted that petitioners application for bail and for release on recognizance was denied.
20
The
determination that the evidence of guilt is strong, whether ascertained in a hearing of an application for bail
21
or imported from a
trial courts judgment of conviction,
22
justifies the detention of an accused as a valid curtailment of his right to provisional liberty.
This accentuates the proviso that the denial of the right to bail in such cases is "regardless of the stage of the criminal action."
Such justification for confinement with its underlying rationale of public self-defense
23
applies equally to detention prisoners like
petitioner or convicted prisoners-appellants like Jalosjos.
As the Court observed in Alejano v. Cabuay,
24
it is impractical to draw a line between convicted prisoners and pre-trial detainees
for the purpose of maintaining jail security; and while pre-trial detainees do not forfeit their constitutional rights upon confinement,
the fact of their detention makes their rights more limited than those of the public.
The Court was more emphatic in People v. Hon. Maceda:
25

As a matter of law, when a person indicted for an offense is arrested, he is deemed placed under the custody of
the law. He is placed in actual restraint of liberty in jail so that he may be bound to answer for the commission of
the offense. He must be detained in jail during the pendency of the case against him, unless he is authorized by
the court to be released on bail or on recognizance. Let it be stressed that all prisoners whether under preventive
detention or serving final sentence can not practice their profession nor engage in any business or occupation, or
hold office, elective or appointive, while in detention. This is a necessary consequence of arrest and
detention.
26
(Underscoring supplied)
These inherent limitations, however, must be taken into account only to the extent that confinement restrains the power of
locomotion or actual physical movement. It bears noting that in Jalosjos, which was decided en banc one month after Maceda,
the Court recognized that the accused could somehow accomplish legislative results.
27

The trial court thus correctly concluded that the presumption of innocence does not carry with it the full enjoyment of civil and
political rights.
Petitioner is similarly situated with Jalosjos with respect to the application of the presumption of innocence during the period
material to the resolution of their respective motions. The Court in Jalosjos did not mention that the presumption of innocence no
longer operates in favor of the accused pending the review on appeal of the judgment of conviction. The rule stands that until a
promulgation of final conviction is made, the constitutional mandate of presumption of innocence prevails.
28

In addition to the inherent restraints, the Court notes that petitioner neither denied nor disputed his agreeing to a consensus with
the prosecution that media access to him should cease after his proclamation by the Commission on Elections.
29

Petitioner goes on to allege that unlike Jalosjos who attempted to evade trial, he is not a flight risk since he voluntarily
surrendered to the proper authorities and such can be proven by the numerous times he was allowed to travel outside his place
of detention.
Subsequent events reveal the contrary, however. The assailed Orders augured well when on November 29, 2007 petitioner went
past security detail for some reason and proceeded from the courtroom to a posh hotel to issue certain statements. The account,
dubbed this time as the "Manila Pen Incident,"
30
proves that petitioners argument bites the dust. The risk that he would escape
ceased to be neither remote nor nil as, in fact, the cause for foreboding became real.
Moreover, circumstances indicating probability of flight find relevance as a factor in ascertaining the reasonable amount of bail
and in canceling a discretionary grant of bail.
31
In cases involving non-bailable offenses, what is controlling is the determination of
whether the evidence of guilt is strong. Once it is established that it is so, bail shall be denied as it is neither a matter of right nor
of discretion.
32

Petitioner cannot find solace in Montano v. Ocampo
33
to buttress his plea for leeway because unlike petitioner, the therein
petitioner, then Senator Justiniano Montano, who was charged with multiple murder and multiple frustrated murder,
34
was able to
rebut the strong evidence for the prosecution. Notatu dignum is this Courts pronouncement therein that "if denial of bail is
authorized in capital cases, it is only on the theory that the proof being strong, the defendant would flee, if he has the opportunity,
rather than face the verdict of the jury."
35
At the time Montano was indicted, when only capital offenses were non-bailable where
evidence of guilt is strong,
36
the Court noted the obvious reason that "one who faces a probable death sentence has a particularly
strong temptation to flee."
37
Petitioners petition for bail having earlier been denied, he cannot rely on Montano to reiterate his
requests which are akin to bailing him out.
Second, petitioner posits that, contrary to the trial courts findings, Esperon did not overrule Obeas recommendation to allow
him to attend Senate sessions. Petitioner cites the Comment
38
of Obea that he interposed no objection to such request but
recommended that he be transported by the Senate Sergeant-at-Arms with adequate Senate security. And petitioner faults the
trial court for deeming that Esperon, despite professing non-obstruction to the performance of petitioners duties, flatly rejected all
his requests, when what Esperon only disallowed was the setting up of a political office inside a military installation owing to
AFPs apolitical nature.
39

The effective management of the detention facility has been recognized as a valid objective that may justify the imposition of
conditions and restrictions of pre-trial detention.
40
The officer with custodial responsibility over a detainee may undertake such
reasonable measures as may be necessary to secure the safety and prevent the escape of the detainee.
41
Nevertheless, while
the comments of the detention officers provide guidance on security concerns, they are not binding on the trial court in the same
manner that pleadings are not impositions upon a court.
Third, petitioner posits that his election provides the legal justification to allow him to serve his mandate, after the people, in their
sovereign capacity, elected him as Senator. He argues that denying his Omnibus Motion is tantamount to removing him from
office, depriving the people of proper representation, denying the peoples will, repudiating the peoples choice, and overruling
the mandate of the people.
Petitioners contention hinges on the doctrine in administrative law that "a public official can not be removed
foradministrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the
officers previous misconduct to the extent of cutting off the right to remove him therefor."
42

The assertion is unavailing. The case against petitioner is not administrative in nature. And there is no "prior term" to speak of. In
a plethora of cases,
43
the Court categorically held that the doctrine of condonation does not apply to criminal cases. Election, or
more precisely, re-election to office, does not obliterate a criminal charge. Petitioners electoral victory only signifies pertinently
that when the voters elected him to the Senate, "they did so with full awareness of the limitations on his freedom of action [and] x
x x with the knowledge that he could achieve only such legislative results which he could accomplish within the confines of
prison."
44

In once more debunking the disenfranchisement argument,
45
it is opportune to wipe out the lingering misimpression that the call
of duty conferred by the voice of the people is louder than the litany of lawful restraints articulated in the Constitution and echoed
by jurisprudence. The apparent discord may be harmonized by the overarching tenet that the mandate of the people yields to the
Constitution which the people themselves ordained to govern all under the rule of law.
The performance of legitimate and even essential duties by public officers has never been an excuse to free a
person validly in prison. The duties imposed by the "mandate of the people" are multifarious. The accused-
appellant asserts that the duty to legislate ranks highest in the hierarchy of government. The accused-appellant is
only one of 250 members of the House of Representatives, not to mention the 24 members of the Senate,
charged with the duties of legislation. Congress continues to function well in the physical absence of one or a few
of its members. x x x Never has the call of a particular duty lifted a prisoner into a different classification from
those others who are validly restrained by law.
46
(Underscoring supplied)
Lastly, petitioner pleads for the same liberal treatment accorded certain detention prisoners who have also been charged with
non-bailable offenses, like former President Joseph Estrada and former Governor Nur Misuari who were allowed to attend "social
functions." Finding no rhyme and reason in the denial of the more serious request to perform the duties of a Senator, petitioner
harps on an alleged violation of the equal protection clause.
In arguing against maintaining double standards in the treatment of detention prisoners, petitioner expressly admits that he
intentionally did not seek preferential treatment in the form of being placed under Senate custody or house arrest,
47
yet he at the
same time, gripes about the granting of house arrest to others.
Emergency or compelling temporary leaves from imprisonment are allowed to all prisoners, at the discretion of the authorities or
upon court orders.
48
That this discretion was gravely abused, petitioner failed to establish. In fact, the trial court previously
allowed petitioner to register as a voter in December 2006, file his certificate of candidacy in February 2007, cast his vote on May
14, 2007, be proclaimed as senator-elect, and take his oath of office
49
on June 29, 2007. In a seeming attempt to bind or twist the
hands of the trial court lest it be accused of taking a complete turn-around,
50
petitioner largely banks on these prior grants to him
and insists on unending concessions and blanket authorizations.
Petitioners position fails. On the generality and permanence of his requests alone, petitioners case fails to compare with the
species of allowable leaves. Jaloslos succinctly expounds:
x x x Allowing accused-appellant to attend congressional sessions and committee meetings for five (5) days or
more in a week will virtually make him a free man with all the privileges appurtenant to his position. Such an
aberrant situation not only elevates accused-appellants status to that of a special class, it also would be a
mockery of the purposes of the correction system.
51

WHEREFORE, the petition is DISMISSED.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice

WE CONCUR:
REYNATO S. PUNO
Chief Justice
LEONARDO A. QUISUMBING
Associate Justice
CONSUELO YNARES-SANTIAGO
Associate Justice
ANTONIO T. CARPIO
Associate Justice
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
RENATO C. CORONA
Associate Justice
ADOLFO S. AZCUNA
Associate Justice
DANTE O. TINGA
Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
RUBEN T. REYES
Associate Justice
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
ARTURO D. BRION
Associate Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were
reached in consultation before the case was assigned to the writer of the opinion of the Court.
REYNATO S. PUNO
Chief Justice

Footnotes
1
The validity of both issuances was decided by the Court in SANLAKAS v. Executive Secretary Reyes, 466 Phil.
482 (2004), notwithstanding the petitions mootness occasioned by Proclamation No. 435 (August 1, 2003) that
lifted the declaration of the state of rebellion. It ruled that the declaration of a state of rebellion is an utter
superfluity devoid of any legal significance.
2
Petitioner had been detained at the Marine Brig, Marine Barracks Manila, Fort Bonifacio, Taguig City since June
13, 2006. Prior thereto, he was detained at the ISAFP Detention Cell; rollo, pp. 8, 278.
3
Garnering 11,189,671 votes, petitioner was proclaimed the 11th Senator-Elect in the May 2007 Elections by
Resolution No. NBC 07-28 of June 15, 2007; rollo, pp. 8, 33, 58-59; Constitution, Art. VI, Sec. 4.
4
Rollo, pp. 61-65.
5
Id. at 62-64. For items (d) and (e), petitioner further manifested that he is willing to abide by the restrictions
previously imposed by the trial court when it previously granted him access to media, to wit: (a) that he will not
make any comments relating to the merits of the instant case or otherwise make statements tending to prejudge
or affect the outcome of the case (i.e., sub judice statements); and (b) that he will not make any libelous
statements or seditious remarks against the Government.
6
Id. at 89-99.
7
Id. at 114-115. Petitioner reiterated only his requests in paragraphs (a), (d), (e) with the additional concession
that "the Senate Sgt-at-Arms or his duly authorized representative (with adequate Security) be authorized to pick
up and transport herein accused from his place of detention at the Marine Brig, Marine Barracks Manila, Fort
Bonifacio, Taguig City, to the Senate and back every time he needs to attend the official functions of the Senate
when the Senate is in regular session[.]"
8
Id. at 137-147.
9
Id. at. 14-15. Petitioner alleges that several government officials and private individuals met with him at the
Marine Brig from July 2, 2007 to September 26, 2007. The initial organizational meeting of the Senate Committee
on the Civil Service and Government Reorganization, of which he is the Chairperson, was held inside the Marine
Brig on September 20, 2007. On September 27, 2007, however, petitioners staff, resource persons and guests
were refused entry, causing the cancellation of the meeting.
10
Id. at 297.
11
Cf. Allied Banking Corporation v. Court of Appeals, G.R. No. 56279, February 9, 1993, 218 SCRA
578;Matuguina Integrated Wood Products, Inc. v. CA, 331 Phil. 795 (1996) following the legal axiom that no
person shall be affected by proceedings to which he is a stranger.
12
Vide Rules of Court, Rule 3, Sec. 17 which also accords the party or officer to be affected a reasonable notice
and an opportunity to be heard; Heirs of Mayor Nemencio Galvez v. CA, 325 Phil. 1028 (1996);Rodriguez v.
Jardin, G.R. No. 141834, July 30, 2007, 528 SCRA 516.
13
Rollo, pp. 22-24.
14
381 Phil. 690 (2000).
15
Vide People v. Jalosjos, supra at 707.
16
Art. III, Sec. 13.
17
Defined in the Rules of Court, Rule 114, Sec. 6; vide Republic Act No. 7659 (1993); but cf. Republic Act No.
9346 (2006).
18
Rules of Court, Rule 114, Sec. 7.
19
Vide Revised Penal Code, Arts. 266-B & 135.
20
Rollo, pp. 86, 257 citing the RTC Orders of July 24, 2004 and June 13, 2006, respectively.
21
Rules of Court, Rule 114, Sec. 8; vide Estrada v. Sandiganbayan, 427 Phil. 820, 864 (2002); People v. Manes,
362 Phil. 569, 576 (1999).
22
SC Administrative Circular No. 2-92 (January 20, 1992); People v. Divina, G.R. Nos. 93808-09, April 7, 1993,
221 SCRA 209, 223; People v. Fortes, G.R. No. 90643, June 25, 1993, 223 SCRA 619, 625-626;Padilla v. CA,
328 Phil. 1266, 1269-1270 (1996); People v. Gomez, 381 Phil. 870 (2000).
23
People v. Jalosjos, supra at 703, which states the rationale that society must protect itself.
24
G.R. No. 160792, August 25, 2005, 468 SCRA 188, 212.
25
380 Phil. 1 (2000).
26
People v. Hon. Maceda, 380 Phil. 1, 5 (2000).
27
People v. Jalosjos, supra at 706, even while remarking that the accused should not even have been allowed by
the prison authorities to perform certain acts in discharge of his mandate.
28
Mangubat v. Sandiganbayan, 227 Phil. 642 (1986).
29
Rollo, pp. 68, 91.
30
Supra note 10.
31
Vide Rules of Court, Rule 114, Secs. 5, 8.
32
Obosa v. Court of Appeals, 334 Phil. 253, 271 (1997). In exceptional cases, the court may consider serious
illness or an ailment of such gravity that his continued confinement will endanger his life or permanently impair his
health. [De la Rama v. Peoples Court, 77 Phil. 461 (1946) cited in Borinaga v. Tamin, A.M. No. RTJ-93-936,
September 10, 1993, 226 SCRA 206, 213; vide People v. Fitzgerald, G.R. No. 149723, October 27, 2006, 505
SCRA 573, 585-586].
33
No. L-6352, January 29, 1953, 49 O.G. No. 5 (May 1953), 1855.
34
Notably, at that time, "reclusion temporal in its maximum period to death" was the imposable penalty for murder
under Article 248 of the Revised Penal Code prior to Republic Act No. 7659 (1993) which, inter alia, increased the
penalty.
35
Supra note 33.
36
Vide Rules on Criminal Procedure (1940), Rule 110, Sec. 6; Rules on Criminal Procedure (1964), Rule 114,
Sec. 6.
37
Bravo, Jr. v. Borja, No. L-65228, February 18, 1985, 134 SCRA 466, 472; vide Obosa v. Court of
Appeals, supra at 268-269 citing De la Camara v. Enage, 41 SCRA 1, 6-7 (1971). It must be understood,
however, that the standard of strong evidence of guilt is markedly higher than the standard of probable cause
sufficient to initiate criminal cases. (Vide Cabrera v. Marcelo, G.R. Nos. 157419-20, December 13, 2004, 446
SCRA 207, 217).
38
Rollo, pp. 71-74. Obea rejected, however, his request to set up a working area at his place of detention, citing
space and security reasons, but stated that other areas within the Marine Barracks Manila can be considered as
an immediate and temporary working area.
39
Id. at 31-32.
40
Alejano v. Cabuay, supra at 206.
41
Republic Act No. 7438 (1992) or "An Act Defining Certain Rights of the Person Arrested, Detained or Under
Custodial Investigation, as well as the Duties of the Arresting, Detaining, and Investigating Officers and Providing
Penalties for Violations Thereof," Sec. 4, last par.
42
Aguinaldo v. Santos, G.R. No. 94115, August 21, 1992, 212 SCRA 768, 773; Salalima v. Guingona, 326 Phil.
847, 919-920 (1996).
43
Aguinaldo v. Santos, supra at 773-774; People v. Jalosjos, supra at 703; Cabrera v. Marcelo, supra at 21-6-
217; People v. Toledano, 387 Phil. 957 (2000).
44
People v. Jalosjos, supra at 706.
45
People v. Jalosjos, supra; cf. Government of the United States of America v. Puruganan, 438 Phil. 417, 456-
458 (2002).
46
People v. Jalosjos, supra at 707.
47
Rollo, pp. 75-76.
48
People v. Jalosjos, supra at 704.
49
Rollo, p. 60; before Barangay Chairman Ruben Gatchalian of Barangay 169, Deparo, Caloocan City.
50
Id. at 34-35.
51
People v. Jalosjos, supra at 704.

The Lawphil Project - Arellano Law Foundation


PRESIDENTIAL ELECTORAL TRIBUNAL
[P.E.T. CASE No. 002. March 29, 2005]
RONALD ALLAN POE a.k.a. FERNANDO POE, JR., protestant,
vs. GLORIA MACAPAGAL-ARROYO, protestee.
R E S O L U T I O N
QUISUMBING, J .:
The moving finger writes, says Omar Khayyam in the Rubayyat, and having writ,
moves on. Nor all your piety nor wit, adds the poet, could lure it back to cancel half a
line; nor all your tears wash out a word of it.
Such is my view on the providential case for our consideration.
Before this Electoral Tribunal, composed pursuant to the Constitution, by all the
fifteen members of the Supreme Court, is a matter of first impression. We are tasked
not only to determine, as originally prayed for, who between the Protestant and the
Protestee was the true winner in the May 10, 2004 Presidential Elections, but also to
decide now whether the Protestants widow (Mrs. Jesusa Sonora Poe, popularly known
as the cinema star Susan Roces) could intervene and/or substitute for the deceased
party, assuming arguendo that the protest could survive his death.
If one were guided by folk wisdom expressed in the adage that in a democracy, the
voice of the people is the voice of God, then it would appear our task had been made
easy by fateful events. Past midnight, in the early hours of June 24, 2004, the
Congress as the representatives of the sovereign people and acting as the National
Board of Canvassers, in a near-unanimous roll-call vote, proclaimed Mrs. Gloria
Macapagal Arroyo (GMA) the duly elected President of the Philippines. She obtained
12,905,808 votes, as against 11,782,232 votes for the second-placer, the movie actor
Fernando Poe, Jr. (FPJ).
[1]
She took her Oath of Office before the Chief Justice of the
Supreme Court on June 30, 2004.
Refusing to concede defeat, the second-placer in the elections, Mr. FPJ, filed
seasonably an election protest before this Electoral Tribunal on July 23, 2004. Mrs.
GMA, through counsel, filed her Answer with Counter Protest on August 5, 2004. As
counsels for the parties exchanged lively motions to rush the presentation of their
respective positions on the controversy, an act of God intervened. On December 14,
2004, the Protestant died in the course of his medical treatment at St. Lukes
Hospital. The medical certificate, filed by counsel as part of the Notice of Death of the
Protestant, showed that he died of cardio-pulmonary arrest, secondary to cerebral
infarction.
However, neither the Protestees proclamation by Congress nor the death of her
main rival as a fortuitous intervening event, appears to abate the present controversy in
the public arena. Instead, notice may be taken of periodic mass actions,
demonstrations, and rallies raising an outcry for this Tribunal to decide the electoral
protest of Mr. FPJ against Mrs. GMA once and for all. The oracular function of this
Tribunal, it would appear, needs to be fully exercised to make manifest here and abroad
who is the duly elected leader of the Filipino nation. All these, despite the fact that the
submissions by the parties on their respective sides in the protest and the counter-
protest are thus far, far from completed.
Needless to stress, this Tribunal cannot shirk its constitutional duty. Yet, neither
could it go beyond its mandate under the Constitution and the law. Further, this
Tribunal is guided by its Rules, as well as the Rules of Court in a suppletory
manner. Considering the transcendental importance of the electoral contest involving
the Presidency, a rush to judgment is simply out of the question. Yet decide the matter
we must, without further delay, to prevent popular unrest and avoid further
destabilization of government at the highest level.
Together with the formal Notice of the Death of Protestant, his counsel has
submitted to the Tribunal, dated January 10, 2005, a MANIFESTATION with URGENT
PETITION/MOTION to INTERVENE AS A SUBSTITUTE FOR DECEASED
PROTESTANT FPJ, by the widow, Mrs. Jesusa Sonora Poe, who signed the
verification and certification therein.
As movant/intervenor, Mrs. FPJ claims that because of the untimely demise of her
husband and in representation not only of her deceased husband but more so because
of the paramount interest of the Filipino people, there is an urgent need for her to
continue and substitute for her late husband in the election protest initiated by him to
ascertain the true and genuine will of the electorate in the 2004 elections. In support of
her assertion, she cites De Castro v. Commission on Elections,
[2]
and Lomugdang v.
Javier,
[3]
to the effect that the death of the protestant does not constitute a ground for the
dismissal of the contest nor oust the trial court of the jurisdiction to decide the election
contest. She stresses nevertheless that even if the instant protest case succeeds, she is
cognizant that as a mere substitute she cannot succeed, assume or be entitled to said
elective office, and her utmost concern is not personal but one that involves the publics
interest. She prays, however, that if subsequently determined that the protestee Gloria
Macapagal-Arroyo did not get the highest number of votes for president, for protestee to
be disallowed from remaining in office, and thus prevented from exercising the powers,
duties, responsibilities and prerogatives reserved only to the duly-elected president or
her legitimate successor.
In her Comment, the Protestee, Mrs. GMA, relying on Vda. de De Mesa v.
Mencias
[4]
and subsequent cases including analogous cases decided by the House of
Representatives Electoral Tribunal (HRET), asserts that the widow of a deceased
candidate is not the proper party to replace the deceased protestant since a public
office is personal and not a property that passes on to the heirs. She points out that the
widow has no legal right to substitute for her husband in an election protest, since no
such right survives the husband, considering that the right to file an election protest is
personal and non-transmissible.
Protestee also contends Mrs. FPJ cannot substitute for her deceased husband
because under the Rules of the Presidential Electoral Tribunal, only the registered
candidates who obtained the 2
nd
and 3
rd
highest votes for the presidency may contest
the election of the president and patently, Mrs. FPJ did not receive the 2
nd
and
3
rd
highest votes for she was not even a candidate for the presidency in the election that
is being contested.
Citing pertinent PET Rules, protestee also stresses that this Tribunal has no
jurisdiction over actions of surviving spouses to ascertain the vote of the electorate as
the Tribunal has jurisdiction only over election protests and quo warranto cases.
According to protestee, movant/intervenor Mrs. FPJ cannot use the public interest
to justify her request to be substituted for her husband. Public interest, i.e. the need to
dispel uncertainty over the real choice of the electorate, is applicable only in election
contests, not in an action to merely ascertain the true and genuine will of the people.
She asserts that the only case herein cognizable by this Tribunal is an election protest
involving a protestant and a protestee, not between the electorate and the
protestee. Citing analogous HRET cases, protestee avers that in a case where the
protestant, the primary adversary in an election protest case dies, the public interest in
said protest dies with him.
Protestee also contends that in the adversarial nature of a protest case where one
of the parties dies, a correct ruling cannot be had because the dead protestant could no
longer refute his adversarys allegations because death has rendered him hors de
combat.
Further citing Defensor-Santiago v. Ramos,
[5]
protestee points out that this Tribunal,
nonetheless, confirmed its power to dismiss an electoral case on technical grounds.
She adds that if the Tribunal can do so on a technicality, all the more it could for a
stronger reason, that of protestants death.
In her Reply, movant/intervenor argues that reference of protestee to the HRET
case of Abadilla v. Ablan,
[6]
was erroneous inasmuch as said case was a congressional
protest and the controlling case is De Castro. She likewise contends that protestant
failed to distinguish between a right to an office which protestant concedes is personal
and non-transmissible vis--vis the right to pursue the process which is not personal but
imbued with public interest. She likewise stresses that the death of the protestant
abolished the personal/private character of the protest, as protestants right to assume if
he prevails, necessarily disappears, and the same cannot be transferred to anyone
else, protestants widow included. She insists, however, that the public interest remains.
Further, movant/intervenor posits that the protest having been commenced cannot be
abated by the death of the protestant and the only real issue is the determination of the
proper substitute. She avers that the Tribunals rule is clear on who can commence and
initiate a protest compared to the persons who can initiate a quo warranto. She admits
that in the former, only the second and third placers in the presidential election are
authorized to commence the contest, while in the latter, any voter may initiate the
petition. She contends that with no personal interest involved, any registered voter can
continue the duly-commenced protest as the real-party-in-interest which is analogous to
a quo warranto. She contradicts protestee and insists that allowing any voter to
substitute just like in a quo warranto will not open the floodgate to whimsical protests,
and the imagined political instability feared by protestee will even more be pronounced if
the protest is dismissed. Movant/intervenor reiterates that the issue at hand involves
just the continuation of proceedings by allowing substitution and the taking over by the
substitute of the prosecution of the protest already duly commenced.
Plainly, the issue here is: May the widow substitute/intervene for the protestant who
died during the pendency of the latters protest case?
The fundamental rule applicable in a presidential election protest is Rule 14 of the
PET Rules. It provides,
Rule 14. Election Protest.Only the registered candidate for President or for Vice-
President of the Philippines who received the second or third highest number of votes
may contest the election of the President or the Vice-President, as the case may be, by
filing a verified petition with the Clerk of the Presidential Electoral Tribunal within
thirty (30) days after the proclamation of the winner.
Pursuant to this rule, only two persons, the 2
nd
and 3
rd
placers, may contest the
election. By this express enumeration, the rule makers have in effect determined the
real parties in interest concerning an on-going election contest. It envisioned a scenario
where, if the declared winner had not been truly voted upon by the electorate, the
candidate who received that 2
nd
or the 3
rd
highest number of votes would be the
legitimate beneficiary in a successful election contest.
This Tribunal, however, does not have any rule on substitution nor intervention but it
does allow for the analogous and suppletory application of the Rules of Court, decisions
of the Supreme Court, and the decisions of the electoral tribunals.
[7]

Rule 3, Section 16 is the rule on substitution in the Rules of Court.
[8]
This rule allows
substitution by a legal representative. It can be gleaned from the citation of this rule that
movant/intervenor seeks to appear before this Tribunal as the legal
representative/substitute of the late protestant prescribed by said Section 16. However,
in our application of this rule to an election contest, we have every time ruled that a
public office is personal to the public officer and not a property transmissible to the heirs
upon death.
[9]
Thus, we consistently rejected substitution by the widow or the heirs in
election contests where the protestant dies during the pendency of the protest. In Vda.
de De Mesa v. Mencias,
[10]
we recognized substitution upon the death of the protestee
but denied substitution by the widow or heirs since they are not the real parties in
interest. Similarly, in the later case of De la Victoria v. Commission on Elections,
[11]
we
struck down the claim of the surviving spouse and children of the protestee to the
contested office for the same reason. Even in analogous cases before other electoral
tribunals,
[12]
involving substitution by the widow of a deceased protestant, in cases where
the widow is not a real party in interest, we denied substitution by the wife or heirs.
This is not to say that death of the protestant necessarily abates the pending action.
We have held as early as Vda. de De Mesa (1966) that while the right to a public office
is personal and exclusive to the public officer, an election protest is not purely personal
and exclusive to the protestant or to the protestee such that the death of either would
oust the court of all authority to continue the protest proceedings.
[13]
Hence, we have
allowed substitution and intervention but only by a real party in interest. A real party in
interest is the party who would be benefited or injured by the judgment, and the party
who is entitled to the avails of the suit.
[14]
In Vda. de De Mesa v.
Mencias
[15]
and Lomugdang v. Javier,
[16]
we permitted substitution by the vice-mayor
since the vice-mayor is a real party in interest considering that if the protest succeeds
and the protestee is unseated, the vice-mayor succeeds to the office of the mayor that
becomes vacant if the one duly elected cannot assume office. In contrast, herein
movant/intervenor, Mrs. FPJ, herself denies any claim to the august office of
President. Thus, given the circumstances of this case, we can conclude that
protestants widow is not a real party in interest to this election protest.
We are not unaware that a contest before election tribunals has two aspects. First, it
is in pursuit of ones right to a public office, and second, it is imbued with public interest.
Indeed the personal aspect of the case is inextricably linked with the public interest.
For an election protest involves not merely conflicting private aspirations but is imbued
with public interest which raises it into a plane over and above ordinary civil
actions.
[17]
But herein movant/intervenor, Mrs. FPJ, has overly stressed that it is with the
paramount public interest in mind that she desires to pursue the process
commenced by her late husband. She avers that she is pursuing the process to
determine who truly won the election, as a service to the Filipino people. We laud her
noble intention and her interest to find out the true will of the electorate. However,
nobility of intention is not the point of reference in determining whether a person may
intervene in an election protest. Rule 19, Section 1 of the Rules of Court
[18]
is the
applicable rule on intervention in the absence of such a rule in the PET Rules. In such
intervention, the interest which allows a person to intervene in a suit must be in the
matter of litigation and of such direct and immediate character that the intervenor will
either gain or lose by the effect of the judgment. In this protest, Mrs. FPJ will not
immediately and directly benefit from the outcome should it be determined that the
declared president did not truly get the highest number of votes. We fully appreciate
counsels manifestation that movant/intervenor herself claims she has no interest in
assuming the position as she is aware that she cannot succeed to the presidency,
having no legal right to it. Yet thus far, in this case, no real parties such as the vice-
presidential aspirants in the 2004 elections, have come forward to intervene, or to be
substituted for the deceased protestant. In our view, if persons not real parties in the
action could be allowed to intervene, proceedings will be unnecessarily complicated,
expensive and interminable and this is not the policy of the law.
[19]
It is far more
prudent to abide by the existing strict limitations on intervention and substitution under
the law and the rules.
Conformably then with the law, the rules and prevailing jurisprudence, this Tribunal
finds no justifiable reason to grant the petition/motion for intervention and substitution.
WHEREFORE, the motion of movant/intervenor JESUSA SONORA POE a.k.a.
SUSAN ROCES to intervene and substitute for the deceased protestant is DENIED for
lack of merit.
Acting on the protest and considering the Notice of the Death, submitted by counsel
of protestant RONALD ALLAN POE, a.k.a. FERNANDO POE, JR., we also resolve that
Presidential Electoral Tribunal Case No. 002, entitled Ronald Allan Poe a.k.a. Fernando
Poe, Jr. v. Gloria Macapagal-Arroyo, should be as it is hereby DISMISSED on the
ground that no real party in interest has come forward within the period allowed by law,
to intervene in this case or be substituted for the deceased protestant.
No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga, Chico-
Nazario, and Garcia, JJ., concur.



[1]
Resolution of Both Houses No. 01, 12
th
Cong., Joint Public Session (2004).
[2]
G.R. No. 125249, 7 February 1997, 267 SCRA 806.
[3]
No. L-27535, 30 September 1967, 21 SCRA 402.
[4]
No. L-24583, 29 October 1966, 18 SCRA 533.
[5]
P.E.T. Case No. 001, 13 February 1996, 253 SCRA 559.
[6]
HRET Case No. 95-005, 11 September 1996, 9 HRET Reports 102.
[7]
Rule 69. Applicability.The following shall be applicable by analogy or in suppletory character and effect
in so far as they may be applicable and are not inconsistent with these Rules and with the orders,
resolutions and decisions of the Tribunal, namely: 1) The Rules of Court; 2) Decisions of the
Supreme Court; 3) Decisions of the Electoral Tribunals.
[8]
SEC. 16. Death of party; duty of counsel.Whenever a party to a pending action dies, and the claim is
not thereby extinguished, it shall be the duty of his counsel to inform the court within thirty (30)
days after such death of the fact thereof, and to give the name and address of his legal
representative or representatives. Failure of counsel to comply with this duty shall be a ground
for disciplinary action.
The heirs of the deceased may be allowed to be substituted for the deceased, without
requiring the appointment of an executor or administrator and the court may appoint a
guardian ad litem for the minor heirs.
The court shall forthwith order said legal representative or representatives to appear and
be substituted within a period of thirty (30) days from notice.
If no legal representative is named by the counsel for the deceased party or if the one so
named shall fail to appear within the specified period, the court may order the opposing party,
within a specified time, to procure the appointment of an executor or administrator for the estate
of the deceased and the latter shall immediately appear for and on behalf of the deceased. The
court charges in procuring such appointment, if defrayed by the opposing party, may be
recovered as costs.
[9]
De Castro v. Commission on Elections, G.R. No. 125249, 7 February 1997, 267 SCRA 806, 809.
[10]
No. L-24583, 29 October 1966, 18 SCRA 533, 545.
[11]
G.R. Nos. 95275-76, 23 July 1991, 199 SCRA 561, 565-566.
[12]
Abadilla v. Ablan, HRET Case No. 95-005, 11 September 1996, 9 HRET Reports 102; Alberto v. Tapia,
HRET Case No. 37, 23 January 1989, 1 HRET Reports 52.
[13]
De Castro v. Commission on Elections, supra at 809.
[14]
Francisco, Jr. v. Nagmamalasakit na mga Manananggol ng Mga Manggagawang Pilipino, Inc., G.R.
Nos. 160261-63 & 160277, 10 November 2003, 415 SCRA 44, 135
citing Kilosbayan Incorporated v. Morato, G.R. No. 118910, 17 July 1995, 246 SCRA 540, 563.
[15]
No. L-24583, 29 October 1966, 18 SCRA 545.
[16]
No. L-27535, 30 September 1967, 21 SCRA 402, 407.
[17]
Vda. de De Mesa v. Mencias, supra at 538.
[18]
SECTION 1. Who may intervene.A person who has a legal interest in the matter in litigation, or in the
success of either of the parties, or an interest against both, or is so situated as to be adversely
affected by a distribution or other disposition of property in the custody of the court or of an officer
thereof may, with leave of court, be allowed to intervene in the action. The court shall consider
whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the
original parties, and whether or not the intervenors rights may be fully protected in a separate
proceeding.
[19]
Magsaysay-Labrador v. Court of Appeals, G.R. No. 58168, 19 December 1989, 180 SCRA 266, 271.
EN BANC
[G.R. No. 132365. July 9, 1998]
COMMISSION ON ELECTIONS, petitioner, vs. HON. TOMAS B.
NOYNAY, Acting Presiding Judge, Regional Trial Court, Branch
23, Allen, Northern Samar, and DIOSDADA F. AMOR, ESBEL
CHUA, and RUBEN MAGLUYOAN, respondents.
D E C I S I O N
DAVIDE, JR., J .:
The pivotal issue raised in this special civil action for certiorari with mandamus is
whether R.A. No. 7691
[1]
has divested Regional Trial Courts of jurisdiction over election
offenses, which are punishable with imprisonment of not exceeding six (6) years.
The antecedents are not disputed.
In its Minute Resolution No. 96-3076 of 29 October 1996, the Commission on
Elections (COMELEC) resolved to file an information for violation of Section 261(i) of
the Omnibus Election Code against private respondents Diosdada Amor, a public
school principal, and Esbel Chua and Ruben Magluyoan, both public school teachers,
for having engaged in partisan political activities. The COMELEC authorized its
Regional Director in Region VIII to handle the prosecution of the cases.
Forthwith, nine informations for violation of Section 261(i) of the Omnibus Election
were filed with Branch 23 of the Regional Trial Court of Allen, Northern Samar, and
docketed therein as follows:
a) Criminal Cases Nos. A-1439 and A-1442, against private respondents Diosdada
Amor, Esbel Chua, and Ruben Magluyoan.
b) Criminal Case No. A-1443, against private respondents Esbel Chua and Ruben
Magluyoan.
c) Criminal Cases Nos. A-1444 and A-1445, against private respondent Esbel Chua
only;
d) Criminal Cases Nos. A-1446 to A-1449, against private respondent Diosdada Amor
only.
In an Order
[2]
issued on 25 August 1997, respondent Judge Tomas B. Noynay, as
presiding judge of Branch 23, motu proprio ordered the records of the cases to be
withdrawn and directed the COMELEC Law Department to file the cases with the
appropriate Municipal Trial Court on the ground that pursuant to Section 32 of B.P. Blg.
129 as amended by R.A. No. 7691,
[3]
the Regional Trial Court has no jurisdiction over
the cases since the maximum imposable penalty in each of the cases does not exceed
six years of imprisonment. Pertinent portions of the Order read as follows:
[I]t is worth pointing out that all the accused are uniformly charged
for [sic] Violation of Sec. 261(i) of the Omnibus Election Code, which under
Sec. 264 of the same Code carries a penalty of not less than one (1) year but
not more than six (6) years of imprisonment and not subject to Probation plus
disqualification to hold public office or deprivation of the right of suffrage.
Sec. 31 [sic] of the Judiciary Reorganization Act of 1980 (B.P.) Blg. 129 as
Amended by Rep. Act. 6691 [sic] (Expanded Jurisdiction) states: Sec. 32.
Jurisdiction Metropolitan Trial Courts, Municipal Circuit Trial Courts,
Municipal Trial Courts in Criminal Cases Except [in] cases falling within the
exclusive original jurisdiction of the Regional Trial Courts and the
Sandiganbayan, the Municipal Trial Courts, Metropolitan Trial Courts and the
Municipal Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over all violations of city or municipal
ordinance committed within their respective territorial jurisdiction;
and
(2) Exclusive original jurisdiction over all offenses punishable with an
imprisonment of not exceeding six (6) years irrespective of the
amount or fine and regardless of other imposable accessory and
other penalties including the civil liability arising from such offenses
or predicated thereon, irrespective of time [sic], nature, value and
amount thereof, Provided, However, that in offenses including
damages to property through criminal negligence, they shall have
exclusive original jurisdiction thereof.
In light of the foregoing, this Court has therefore, no jurisdiction over the cases
filed considering that the maximum penalty imposable did not exceed six (6)
years.
The two motions
[4]
for reconsideration separately filed by the COMELEC Regional
Director of Region VIII and by the COMELEC itself through its Legal Department having
been denied by the public respondent in the Order of 17 October 1997,
[5]
the petitioner
filed this special civil action. It contends that public respondent has erroneously
misconstrued the provisions of Rep. Act No. 7691 in arguing that the Municipal Trial
Court has exclusive original jurisdiction to try and decide election offenses because
pursuant to Section 268 of the Omnibus Election Code and this Courts ruling in Alberto
[sic] vs. Judge Juan Lavilles, Jr., Regional Trial Courts have the exclusive original
jurisdiction over election offenses.
On 17 February 1998, we required the respondents and the Office of the Solicitor
General to comment on the petition.
In its Manifestation of 5 March 1998, the Office of the Solicitor General informs us
that it is adopting the instant petition on the ground that the challenged orders of public
respondent are clearly not in accordance with existing laws and jurisprudence.
In his Manifestation of 12 March 1998, public respondent avers that it is the duty of
counsel for private respondents interested in sustaining the challenged orders to appear
for and defend him.
In their Comment, private respondents maintain that R.A. No. 7691 has divested the
Regional Trial Courts of jurisdiction over offenses where the imposable penalty is not
more than 6 years of imprisonment; moreover, R.A. 7691 expressly provides that all
laws, decrees, and orders inconsistent with its provisions are deemed repealed or
modified accordingly. They then conclude that since the election offense in question is
punishable with imprisonment of not more than 6 years, it is cognizable by Municipal
Trial Courts.
We resolved to give due course to the petition.
Under Section 268 of the Omnibus Election Code, Regional Trial Courts have
exclusive original jurisdiction to try and decide any criminal action or proceedings for
violation of the Code except those relating to the offense of failure to register or failure
to vote.
[6]
It reads as follows:
SEC. 268. Jurisdiction of courts. - The regional trial court shall have the
exclusive original jurisdiction to try and decide any criminal action or
proceedings for violation of this Code, except those relating to the offense of
failure to register or failure to vote which shall be under the jurisdiction of the
metropolitan or municipal trial courts. From the decision of the courts, appeal
will lie as in other criminal cases.
Among the offenses punished under the Election Code are those enumerated in
Section 261 thereof. The offense allegedly committed by private respondents is
covered by paragraph (i) of said Section, thus:
SEC. 261. Prohibited Acts. The following shall be guilty of an election
offense:
(i) Intervention of public officers and employees. Any officer or employee in
the civil service, except those holding political offices; any officer, employee,
or member of the Armed Forces of the Philippines, or any police forces,
special forces, home defense forces, barangay self-defense units and all other
para-military units that now exist or which may hereafter be organized who,
directly or indirectly, intervenes in any election campaign or engages in any
partisan political activity, except to vote or to preserve public order, if he is a
peace officer.
Under Section 264 of the Code the penalty for an election offense under the Code,
except that of failure to register or failure to vote, is imprisonment of not less than one
year but not more than six years and the offender shall not be subject to probation and
shall suffer disqualification to hold public office and deprivation of the right of suffrage.
Section 32 of B.P. Blg. 129 as amended by Section 2 of R.A. No. 7691, provides as
follows:
SEC. 32. Jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts and
Municipal Circuit Trial Courts in Criminal Cases. Except in cases falling
within the exclusive original jurisdiction of Regional Trial Court and of the
Sandiganbayan, the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts shall exercise:
(1) Exclusive original jurisdiction over all violations of city or municipal
ordinances committed within their respective territorial jurisdiction; and
(2) Exclusive original jurisdiction over all offenses punishable with
imprisonment not exceeding six (6) years irrespective of the amount of fine,
and regardless of other imposable accessory or other penalties, including the
civil liability arising from such offenses or predicated thereon, irrespective of
kind, nature, value or amount thereof: Provided, however, That in offenses
involving damage to property through criminal negligence, they shall have
exclusive original jurisdiction thereof.
We have explicitly ruled in Morales v. Court of Appeals
[7]
that by virtue of the
exception provided for in the opening sentence of Section 32, the exclusive original
jurisdiction of Metropolitan Trial Courts, Municipal Trial Courts, and Municipal Circuit
Trial Courts does not cover those criminal cases which by specific provisions of law fall
within the exclusive original jurisdiction of Regional Trial Courts and of the
Sandiganbayan, regardless of the penalty prescribed therefor. Otherwise stated, even if
those excepted cases are punishable by imprisonment of not exceeding six (6) years
(i.e., prision correccional, arresto mayor, or arresto menor), jurisdiction thereon is
retained by the Regional Trial Courts or the Sandiganbayan, as the case may be.
Among the examples cited in Morales as falling within the exception provided for in
the opening sentence of Section 32 are cases under (1) Section 20 of B.P. Blg. 129; (2)
Article 360 of the Revised Penal Code, as amended; (3) the Decree on Intellectual
Property;
[8]
and (4) the Dangerous Drugs Act of 1972,
[9]
as amended.
Undoubtedly, pursuant to Section 268 of the Omnibus Election Code, election
offenses also fall within the exception.
As we stated in Morales, jurisdiction is conferred by the Constitution or by
Congress. Outside the cases enumerated in Section 5(2) of Article VIII of the
Constitution, Congress has the plenary power to define, prescribe, and apportion the
jurisdiction of various courts. Congress may thus provide by law that a certain class of
cases should be exclusively heard and determined by one court. Such law would be a
special law and must be construed as an exception to the general law on jurisdiction of
courts, namely, the Judiciary Act of 1948, as amended, and the Judiciary
Reorganization Act of 1980. R.A. No. 7691 can by no means be considered as a
special law on jurisdiction; it is merely an amendatory law intended to amend specific
sections of the Judiciary Reorganization Act of 1980. Hence, R.A. No. 7691 does not
have the effect of repealing laws vesting upon Regional Trial Courts or the
Sandiganbayan exclusive original jurisdiction to hear and decide the cases therein
specified. That Congress never intended that R.A. No. 7691 should repeal such special
provisions is indubitably evident from the fact that it did not touch at all the opening
sentence of Section 32 of B.P. Blg. 129 providing for the exception.
It is obvious that respondent judge did not read at all the opening sentence of
Section 32 of B.P. Blg. 129, as amended. It is thus an opportune time, as any, to
remind him, as well as other judges, of his duty to be studious of the principles of
law,
[10]
to administer his office with due regard to the integrity of the system of the law
itself,
[11]
to be faithful to the law, and to maintain professional competence.
[12]

Counsel for petitioner, Atty. Jose P. Balbuena, Director IV of petitioners Law
Department, must also be admonished for his utter carelessness in his reference to the
case against Judge Juan Lavilles, Jr. In the motion for Reconsideration
[13]
he filed with
the court below, Atty. Balbuena stated:
As a matter of fact, the issue on whether the Regional Trial Court has
exclusive jurisdiction over election offenses is already a settled issue in the
case of Alberto Naldeza vs- Judge Juan Lavilles, Jr., A.M. No. MTJ-94-1009,
March 5, 1996, where the Supreme Court succinctly held:
A review of the pertinent provision of law would show that pursuant to Sec.
265 and 267 of the Omnibus Election Code, the COMELEC, has the exclusive
power to conduct preliminary investigation of all election offenses punishable
under the Code and the RTC shall have the exclusive original jurisdiction to
try and decide any criminal action or proceedings for violation of the
same. The Metropolitan, or MTC, by way of exception exercises jurisdiction
only on offenses relating to failure to register or to vote. Noting that these
provisions stand together with the provisions that any election offense under
the code shall be punishable with imprisonment of one (1) year to six (6) years
and shall not be subject to probation (Sec. 263, Omnibus Election Code), we
submit that it is the special intention of the Code to vest upon the RTC
jurisdiction over election cases as a matter of exception to the general
provisions on jurisdiction over criminal cases found under B.P. 129 by RA
7691 does not vest upon the MTC jurisdiction over criminal election offenses
despite its expanded jurisdiction. (Underscoring ours)
Also, in this petition, Atty. Balbuena states:
16. This Honorable Supreme Court, in the case of Alberto -vs- Judge
Juan Lavilles, Jr., 245 SCRA 286 involving the same issue of jurisdiction
between the lower courts and Regional Trial Court on election offenses, has
ruled, thus:
With respect to the other charges, a review of the Pertinent Provision of Law
would show that pursuant to Section 265 and 267 of the Omnibus Election
Code the Comelec has the exclusive power to conduct preliminary
investigations all election offenses punishable under the code and the
Regional Trial Court shall have the exclusive original jurisdiction to try and
decide any criminal action or proceedings for violation of the same. The
Metropolitan Trial Court, by way of exception exercise jurisdiction only on
offenses relating to failure to register or to vote. Noting that these provisions
stands together with the provision that any election offense under the code
shall be punishable with imprisonment for one (1) year to six (6) years and
shall not be subject to probation (Section 264, Omnibus Election Code). We
submit that it is the special intention of the code to vest upon the Regional
Trial Court jurisdiction over election cases as matter of exemption to the
provisions on jurisdiction over criminal cases found under B.P. Reg. 129, as
amended. Consequently, the amendment of B.P. Reg. 129 by Republic Act
No. 7691 does not vest upon the MTC jurisdiction over criminal election
offenses despite its expanded jurisdiction.
If Atty. Balbuena was diligent enough, he would have known that the correct name of
the complainant in the case referred to is neither Alberto Naldeza as indicated in the
motion for reconsideration nor Alberto alone as stated in the petition, but ALBERTO
NALDOZA. Moreover, the case was not reported in volume 245 of the Supreme Court
Reports Annotated (SCRA) as falsely represented in the paragraph 16 of the petition,
but in volume 254 of the SCRA.
Worse, in both the motion for reconsideration and the petition, Atty. Balbuena
deliberately made it appear that the quoted portions were our findings or rulings, or, put
a little differently, our own words. The truth is, the quoted portion is just a part of the
memorandum of the Court Administrator quoted in the decision.
Rule 10.02 of Canon 10 of the Code of Professional Responsibility
[14]
mandates that
a lawyer shall not knowingly misquote or misrepresent the text of a decision or authority.
IN VIEW OF ALL THE FOREGOING, the instant petition is GRANTED. The
challenged orders of public respondent Judge Tomas B. Noynay of 25 August 1997 and
17 October 1997 in Criminal Cases Nos. A-1439 and A-1442 to A-1449 are SET
ASIDE. Respondent Judge is DIRECTED to try and decide said cases with purposeful
dispatch and, further, ADMONISHED to faithfully comply with Canons 4 and 18 of the
Canons of Judicial Ethics and Rule 3.01, Canon 3 of the Code of Judicial Conduct.
Atty. Jose P. Balbuena is ADMONISHED to be more careful in the discharge of his
duty to the court as a lawyer under the Code of Professional Responsibility.
No costs.
SO ORDERED.
Narvasa, C.J., Regalado, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan,
Mendoza, Panganiban, Martinez, Quisumbing, and Purisima, JJ., concur.



[1]
Entitled An Act Expanding the Jurisdiction of the Metropolitan Trial Courts, Municipal Trial Courts, and
Municipal Circuit Trial Courts, Amending for the Purpose Batas Pambansa Blg. 129, Otherwise Known as
the Judiciary Reorganization Act of 1980.
[2]
Rollo, 13-15.
[3]
Erroneously cited as Rep. Act. 6691.
[4]
Rollo, 16-17; 18-22.
[5]
Id., 24-28.
[6]
The penalty for the offense of failure to register or failure to vote is fine of P100.00 plus disqualification
to run for public office in the next succeeding election following his conviction or to be appointed to a
public office for a period of one year following his conviction. However, the provisions of the Omnibus
Election penalizing failure to register and failure to vote [Sec. 261, paragraph (y), subparagraph (1) and
paragraph (z), subparagraph (1), respectively] were expressly repealed by Section 17 of Executive Order
No. 134 promulgated on 27 February 1987 by then President Corazon C. Aquino.
[7]
G.R. No. 126623, 12 December 1997.
[8]
P.D. No. 49, as amended.
[9]
R.A. No. 6425, as amended.
[10]
Canon 4, Canons of Judicial Ethics.
[11]
Canon 18, id.
[12]
Rule 3.01, Canon 3, Code of Judicial Conduct.
[13]
Rollo, 21-22.
[14]
Applicable to lawyers in government service in the discharge of their official tasks pursuant to Canon 6
thereof.
EN BANC
[G.R. No. 149164-73. December 10, 2003]
COMMISSION ON ELECTIONS, petitioner, vs. HON. DOLORES L.
ESPAOL, Presiding Judge, Regional Trial Court, Branch 90,
Imus, Cavite,respondents.
D E C I S I O N
CALLEJO, SR., J .:
This is a petition for certiorari and mandamus under Rule 65 of the Rules of Court,
as amended, filed by the Commission on Elections (COMELEC) for the nullification of
the Order of the respondent judge dated February 20, 2001, denying the Omnibus
Motion to Dismiss filed by the petitioner in Criminal Case Nos. 7960-00 to 7969-00, and
the Order dated May 16, 2001, denying the petitioners motion for reconsideration.
The Antecedents
During the elections on May 11, 1998, Florentino A. Bautista was the official
candidate of the Lakas for the position of Municipal Mayor of Kawit, Cavite. He executed
an Affidavit-Complaint charging the incumbent Municipal Mayor Atty. Federico Hit
Poblete, Vice-Mayor Reynaldo Aguinaldo, Bienvenido Pobre, Arturo Ganibe, Leonardo
Llave, Diosdado del Rosario, Manuel Ubod, Angelito Peregrino, Mario Espiritu, Salvador
Olaes and Pedro Paterno, Jr. of violation of paragraphs (a) and (b) of Section 261 of the
Omnibus Election Code (vote buying) and filed the same with the Law Department of
the COMELEC. The complaint was entitled Florentino A. Bautista vs. Federico A.
Poblete, et al., and docketed as EO Case No. 98-219. Of the 77 persons offered by
the complainant to prove the charges, 44 executed their respective affidavits and swore
and subscribed to the truth thereof, on the vote-buying of the respondents. The Law
Department of the petitioner conducted the requisite preliminary investigation, after
which it submitted its comments and recommendations to the COMELEC En Banc.
On February 25, 1999, the COMELEC En Banc issued Resolution No. 99-0346, the
dispositive portion of which reads:
RESOLVED: (a) to file the necessary information against respondents Federico A.
Poblete, Bienvenido C. Pobre, Reynaldo B. Aguinaldo, Leonardo Llave, Diosdado del
Rosario, Angelito Peregrino, Mario Espiritu, Salvador Olaes, Pedro Paterno, Jr.,
Arturo Ganibe and Manuel Ubod, before the proper Regional Trial Court of Cavite for
violation of Section 261 (a) and (b) of the Omnibus Election Code; and to authorize
the Director IV of the Law Department to designate a COMELEC prosecutor to
handle the prosecution of the case until termination thereof, with the duty to submit
periodic report after every hearing of the case; and (b) to file a Motion before the
Court for the preventive suspension for a period of ninety (90) days of respondents
Mayor Bienvenido Pobre, Vice-Mayor Reynaldo Aguinaldo and Sangguniang Bayan
members Leonardo Llave, Diosdado del Rosario, Angelito Peregrino, Mario Espiritu,
Salvador Olaes and Pedro Paterno, Jr., while the case is pending pursuant to Section
60 Chapter IV of Republic Act No. 7160, otherwise known as the Local Government
Code of 1991 specifically on the ground of commission of an offense involving moral
turpitude.
[1]

The petitioner, through its Law Department, filed an Information against the
respondents with the Regional Trial Court of Cavite, docketed as Criminal Case No.
7034-99, raffled to Branch 90, presided by the respondent judge. On May 10, 1999, the
court issued an order directing the Law Department of the petitioner to conduct a
reinvestigation of the case, citing the ruling of this Court in Lozano vs.
Yorac
[2]
and Nolasco vs. Commission on Elections.
[3]

In the meantime, Gerardo Macapagal and Inocencio Rodelas filed a criminal
complaint for violation of Section 261(a) of the Omnibus Election Code (vote selling)
against the witnesses of Florentino A. Bautista in Criminal Case No. 7034-99. The
complaint was docketed as I.S. No. 1-99-1080. The Office of the Cavite Provincial
Prosecutor conducted a preliminary investigation of the complaint, in his capacity as a
deputy of the petitioner. On April 10, 2000, the Office of the Cavite Provincial Prosecutor
issued a resolution in I.S. No. 1-99-1080 finding probable cause against the
respondents for violations of Section 261(a) and (b) of the Omnibus Election Code, and
filed separate Informations against them with the RTC of Cavite. The dispositive portion
of the Resolution reads:
WHEREFORE, in the light of the preceding premises, let separate Informations for
vote-selling penalized under Section 261 (a) (b) of the Omnibus Election Code be
immediately filed against all respondents, thirteen of whom were deemed to have
waived their right to present evidence in their behalf during the preliminary
investigation.
[4]

The cases were raffled and assigned to the RTC branches as follows:
Criminal Case No. Branch Number
7940-00 to 7949-00 and 7981-00 Branch 22
7973-00 to 7979-00 and 7970-00 Branch 21
7950-00 to 7959-00 and 7980-00 Branch 20
7960-00 to 7969-00 Branch 90
On June 15, 2000, the respondents in I.S. No. 1-99-1080 received copies of the
Resolution of the Provincial Prosecutor, and on June 23, 2000 appealed the same to
the petitioner, contending that:
Violation of Section 261 (a)(2) of the Omnibus Election Code is an election offense
under Article XXII of the same code. Under Section 265 of the Code, it is this
Honorable Commission which has the exclusive power to conduct (the) preliminary
investigation thereof, and to prosecute the same. As such, it is also this Honorable
Commission which has the exclusive power to review, motu proprio or through an
appeal, the recommendation or resolution of investigating officers in the
preliminary investigation.
This appeal is, therefore, made pursuant to this Honorable Commissions exclusive
power to conduct preliminary investigation of all election offenses xxx and to
prosecute the same and to review the recommendation or resolution of investigating
officers, like the chief state prosecutor and/or provincial/city prosecutors in
preliminary investigations thereof under Section 265 of the Omnibus Election Code
and Section 10, Rule 34 of the COMELEC Rules of Procedure.
[5]

On July 6, 2000, the petitioner came out with Minute Resolution No. 00-1378
denying the appeal of the respondents-appellants therein for lack of jurisdiction. But on
the same day, the respondents-appellants filed an Urgent Motion to Withdraw or
Revoke the Delegated Authority of the Law Department to Direct the Said Office to
Suspend or Move for the Suspension of the Prosecution of Criminal Cases Nos. 7940-
00 to 7981-00. The respondents-appellants also filed a Manifestation with Urgent
Motion to Set for Hearing Re: Appeal from the Resolution of the Provincial Prosecutor of
Resolution No. I.S. No. 1-99-1080. On September 7, 2000, the COMELEC approved
Resolution No. 00-1826, thus:
The Commission, after due deliberation, RESOLVED as it hereby RESOLVES to
defer action on the aforesaid matter. Meanwhile, to refer the same to the Law
Department for comment and recommendation.
Let the Law Department implement this resolution.
[6]

On October 24, 2000, the Law Department of the petitioner filed a motion before
Branches 20, 21, 22 and 90, praying for the suspension of the proceedings against all
the accused until the petitioner shall have resolved the incidents before it. The public
prosecutor did not object to the motion. On October 25, 2000, RTC, Branch 22, issued
an Order granting the motion in the criminal cases before it.
Meanwhile, acting on the appeal of the respondents-appellants in I.S. No. 1-99-
1080, Atty. Michael L. Valdez submitted his recommendation in behalf of the
COMELECs Law Department, Investigation and Prosecution Division on November 13,
2000. It was recommended that the petitioner nullify the Resolution of the Office of the
Cavite Provincial Prosecutor in I.S. No. 1-99-1080, for the reason that the respondents-
appellants are exempt, under Section 28(4) of Republic Act No. 6646, from prosecution
for violation of Section 261(a)(b) of the Omnibus Election Code:
WHEREFORE, premises considered, the Law Department RECOMMENDS to
declare as null and void the Resolution of the Office of the Provincial Fiscal
(Prosecutor) of Cavite in I.S. No. 1-99-1080, entitled Gerardo Macapagal, et al. vs.
Celerino Villarosa, et al., finding the existence of a probable cause against the
respondents for being a violation of Section 28 (4) of Rep. Act No. 6646, and to
exempt them from criminal prosecution, accused: Celerino Villarosa, Felisa Villarosa,
Leonardo Collano, Azucena Collano, Jonathan Francisco, Berna Francisco, David
Zablan, Teresita Zablan, Rowel Del Rosario, Reynaldo Morales, Lolita Morales,
Sherlita Borejon, Leonardo Mabiliran, Virgilio Duco, Marina Duco, Bencio Planzar,
Rudy Solomon, Nenita Viajador, Antonio De la Cruz, Guinata Agarao, Luis Cantiza,
Ramilo Pinote, Miriam Pinote, Wilfredo/Fredo Rodriguez, Marlene/Marlyn
Rodriguez, Rodelio Pinote, Saludia Pinote, Ronel Escalante, Alejandrino Duco,
Dominga Duco, Joel De la Rosa, Shirley De la Rosa, Ernesto Del Rosario, Nilda Del
Rosario, Rodger Pinote, Ma. Theresa Pinote, Wilfredo Del Rosario, Roberto Pinote,
Jocelyn Pinote, Norma De la Rosa, Lita Montad and Nacy Daiz, whose cases are
pending before Branches Nos. 20, 21, 22, and 90, Regional Trial Court, Imus, Cavite,
and who are witnesses of the prosecution in Crim. Case No. 7034-99, Regional Trial
Court, Branch 90, Imus, Cavite, and to direct the Law Department to file the
necessary motion before the court to dismiss their cases, by citing Section 28 (4) of
Rep. Act No. 6646.
[7]

During the regular meeting of the COMELEC En Banc on November 23, 2000, the
Chairman and two other commissioners were on official leave. The remaining four
commissioners met and issued Resolution No. 00-2453 approving the foregoing
recommendation, to wit:
The Commission RESOLVED, as it hereby RESOLVES, to approve the
recommendation of the Law Department as follows:
1. to declare the Resolution of the Office of the Provincial Prosecutor of Cavite in
I.S. No. 1-99-1080 (Gerardo Macapagal, et al. vs. Celerino Villarosa, et al.) as null
and void, and to exempt the aforementioned accused from criminal prosecution
pursuant to Section 28 (4) of R.A. No. 6646; and
2. to direct the Law Department to file the necessary motion to dismiss before the
proper court the cases against the herein-named accused.
Let the Law Department implement this resolution.
SO ORDERED.
[8]

In compliance with the Resolution of the COMELEC En Banc, its Law Department,
through Attys. Jose P. Balbuena and Michael Valdez, filed with the RTC, Branch 90, an
Omnibus Motion (1) Motion for Reconsideration Re: Order of this Court dated
November 22, 2000; (2) Motion for Leave to Reiterate Urgent Motion to Suspend
Proceedings; and (3) Motion to Dismiss filed on January 8, 2001. The Public
Prosecutor opposed the petitioners motion to dismiss on the following grounds: (a) the
exemption under the last paragraph of Section 28 of Republic Act No. 6646 applies only
to the offense of vote-buying, as the accused in Criminal Case No. 7034-99 in which the
respondents-appellants gave their sworn statements was for vote-buying; this
exemption will not apply to the charge for vote-selling which was the crime charged in
I.S. No. 1-99-1080; (b) the July 6, 2000 Resolution No. 00-1378 of the petitioner had
become final and executory; hence, it is no longer subject to review by the petitioner;
and (c) the review of the Provincial Prosecutors resolution made by the petitioner was a
re-investigation of the case, and was done without prior authority of the Court.
On February 20, 2001, the trial court issued an Order denying the Omnibus Motion
of the petitioner. The petitioner filed a Motion for Reconsideration of the said order
on March 31, 2000. The Provincial Prosecutor opposed the motion. On May 16, 2001,
the trial court issued an Order denying the said motion holding that the petitioner had no
absolute power to grant exemptions under Section 28 of Republic Act No. 6648. The
trial court also held that the issue of whether or not the accused are exempt from
prosecution and consequent conviction for vote-buying is a matter addressed to the
Court and not to the petitioner.
In its petition at bar, the petitioner raises the following issues for resolution, viz:
(1) WHETHER THE ACCUSED ARE EXEMPT FROM CRIMINAL
PROSECUTION PURSUANT TO SECTION 28 (4) OF R.A. No. 6646.
(2) WHETHER THERE IS NO NEED FOR AN EN BANC RESOLUTION
REVOKING THE AUTHORITY OF THE PROVINCIAL PROSECUTOR FROM
HANDLING THE CASES FILED IN COURT SINCE THE COMELEC EN BANC
ALREADY DIRECTED THE LAW DEPARTMENT TO FILE A MOTION TO
DISMISS THESE CASES;
[9]

On the first issue, the petitioner contends that the complainants-appellees in I.S.
No. 1-99-1080 failed to file any motion for the reconsideration of the petitioners
Resolution No. 00-2453 reversing Resolution No. 00-1378 which, in turn, dismissed the
respondents-appellants appeal. Neither did the said complainants-appellees file a
petition for certiorari under Rule 65 of the Rules of Court from its Resolution No. 00-
2453. Consequently, Resolution No. 00-2453 has become final and executory; hence, is
binding and conclusive on the complainants-appellees, the Office of the Provincial
Prosecutor and the herein respondent judge. The petitioner further asserts that the
respondents-appellants motion for reconsideration in I.S. No. 1-99-1080 of COMELEC
Resolution No. 00-1378 is not a prohibited pleading under Rule 13, Section 1,
paragraph (d) of the COMELEC Rules of Procedure.
According to the petitioner, the prosecution of election offenses is under its sole
control. Any delegation of its authority to the Provincial or City Prosecutor to prosecute
election cases may be revoked or withdrawn by it, expressly or impliedly, at any stage
of the proceedings in the RTC. The petitioner, through Atty. Michael Valdez of its Law
Department, had already entered his appearance for the petitioner as public prosecutor
before the respondent judge. The Provincial Prosecutor was, thus, ipso facto divested of
his authority, as deputized prosecutor, to represent the petitioner on the motion to
dismiss and to prosecute the cases before the respondent judge.
The respondent judge, for her part, avers that COMELEC Resolution No. 00-2453
was approved only by four of the seven members of the petitioner sitting en banc, and
as such, could not have validly revoked Resolution No. 00-1378 which was, in turn,
approved by unanimous vote of the Commission Members sitting en banc. It behooved
the petitioner to conduct a joint reinvestigation in I.S. No. 1-99-1080 and EO No. 98-219
to ascertain whether the respondents-appellants in I.S. No. 1-99-1080 were exempt
from prosecution for vote-selling.
Finally, according to the respondent judge, Section 2, Rule 34 of the COMELEC
Rules of Procedure is contrary to Section 265 of the Omnibus Election Code, which
does not allow the petitioner to withdraw its deputation of Provincial or City Prosecutors.
We agree with the petitioner.
Under Article IX, Section 2(b) of the Constitution,
[10]
the petitioner is empowered to
investigate and, when appropriate, prosecute election offenses. The grant by the
Constitution to the petitioner of the express power to investigate and prosecute election
offenses is intended to enable the petitioner to assure the people of a fine, orderly,
honest, peaceful and credible election.
[11]
Under Section 265 of the Omnibus Election
Code, the petitioner, through its duly authorized legal officers, has the exclusive power
to conduct preliminary investigation of all election offenses punishable under the
Omnibus Election Code, and to prosecute the same. The petitioner may avail of the
assistance of the prosecuting arms of the government.
[12]
In Section 2, Rule 34 of the
COMELEC Rules of Procedure, all Provincial and City Prosecutors and/or their
respective assistants are given continuing authority as its deputies to conduct
preliminary investigation of complaints involving election offenses under election laws
and to prosecute the same. The complaints may be filed directly with them or may be
indorsed to them by the petitioner or its duly authorized representatives.
[13]
The
respondents assertion that Section 2, Rule 34, of the COMELEC Rules of Procedure is
a violation of Section 265 of the Omnibus Election Code has been laid to rest by this
Court in Margarejo vs. Escoses,
[14]
wherein this Court ruled that until revoked, the
continuing authority of the Provincial or City Prosecutors stays.
The deputation of the Provincial and City Prosecutors is necessitated by the need
for prompt investigation and dispensation of election cases as an indispensable part of
the task of securing fine, orderly, honest, peaceful and credible elections. Enfeebled by
lack of funds and the magnitude of its workload, the petitioner does not have a sufficient
number of legal officers to conduct such investigation and to prosecute such
cases. The prosecutors deputized by the petitioner are subject to its authority, control
and supervision in respect of the particular functions covered by such deputation. The
acts of such deputies within the lawful scope of their delegated authority are, in legal
contemplation, the acts of the petitioner itself.
[15]
Such authority may be revoked or
withdrawn any time by the petitioner, either expressly or impliedly, when in its judgment
such revocation or withdrawal is necessary to protect the integrity of the process to
promote the common good, or where it believes that successful prosecution of the case
can be done by the petitioner. Moreover, being mere deputies or agents of the
petitioner, provincial or city prosecutors deputized by the petitioner are expected to act
in accord with and not contrary to or in derogation of the resolutions, directives or orders
of the petitioner in relation to election cases such prosecutors are deputized to
investigate and prosecute. Otherwise, the only option of such provincial or city
prosecutor is to seek relief from the petitioner as its deputy.
The withdrawal by the petitioner of its deputation of the provincial or city prosecutors
may not be interfered with or overruled by the trial court. In this case, the petitioner had
resolved to approve the recommendation of its Law Department and nullified the
Resolution of the Provincial Prosecutor in I.S. No. 1-99-1080, and directed its Law
Department, not the Provincial Prosecutor, to implement the said resolution and file the
necessary motion to dismiss Criminal Cases Nos. 7960-00 to 7969-00 pending with the
respondent judge. The Law Department did file before the respondent a Motion to
Dismiss the said cases and a motion for the respondent to, in the meantime, suspend
the proceedings. Atty. Michael L. Valdez, a legal officer of the petitioners Law
Department, entered his appearance for the petitioner. The Provincial Prosecutor was
thereby relieved of his deputation to represent the petitioner in connection with the said
motion. However, the Provincial Prosecutor refused to give way to the Legal Officer of
the petitioner and even opposed the said motion. The act of the Provincial Prosecutor
constituted a defiance of the resolution of the petitioner and should have been ignored
by the respondent judge.
It bears stressing that when the Provincial Prosecutor conducted the preliminary
investigation of I.S. No. 1-99-1080, and filed the Information in Criminal Cases Nos.
7960-00 to 7969-00, he did so because he had been duly deputized by the
petitioner. He did not do so under the sole authority of his office.
[16]
The resolution of the
Provincial Prosecutor in I.S. No. 1-99-1080 was subject to appeal by the aggrieved
party to the petitioner and may be reversed by the petitioner in the exercise of its
supervision and control of its deputies/subordinates.
[17]

While it is the true that the petitioner initially dismissed the appeal of the
respondents-appellants from the resolution of the Provincial Prosecutor in I.S. No. 1-99-
1080, the petitioner later gave due course and granted the appeal, and nullified the
resolution of the Provincial Prosecutor. Contrary to the latters claim, the petitioner did
not conduct a reinvestigation of I.S. No. 1-99-1080. It merely acted on the appeal of the
respondents-appellants.
The respondent has failed to cite any COMELEC rule which requires the unanimous
votes of all its Commissioners sitting en banc for the reversal or revocation of a prior
resolution approved by unanimous vote. On the other hand, Section 5, Rule 2 of the
COMELEC Rules of Procedure provides that:
SEC. 5. Quorum; Votes Required. (a) When sitting en banc, four (4) Members of
the Commission shall constitute a quorum for the purpose of transacting business. The
concurrence of a majority of the Members of the Commission shall be necessary for
the pronouncement of a decision, resolution, order or ruling.
In this case, COMELEC Resolution No. 00-2453 was approved by four of the seven
Commissioners of the petitioner, three of whom were on official leave. Irrefragably, the
said resolution of the petitioner giving due course to the appeal of the respondents-
appellants in I.S. No. 1-99-1087 was a valid reversal of COMELEC Resolution No. 00-
1378 which initially denied the said appeal of the respondents-appellants.
The conduct of a preliminary investigation of election offenses for the purpose of
determining whether or not there is probable cause to believe that the accused is guilty
of the offense charged and, therefore, should be subjected to trial is the function of the
petitioner.
[18]
The Court will not even interfere with the finding of the petitioner absent a
clear showing of grave abuse of discretion. Neither should the respondent. This
principle emanates from the COMELECs exclusive power to conduct preliminary
investigation of all election offenses and to prosecute the same except as may
otherwise be provided by law. While it is the duty of the petitioner to prosecute those
committing election offenses, it is equally its duty not to prosecute those offenses where
no probable cause exists. The exclusion and inclusion of persons in Informations for
election offenses is a prerogative granted by the law and the Constitution to the
petitioner.
[19]
The petitioner may not be compelled to charge a person or include the latter
in an Information when it believes that under the law and on the basis of the evidence in
its possession, such person should not be charged at all.
On the second issue, the petitioner contends that respondents-appellants in I.S. No.
1-99-1080, who were its witnesses in Criminal Case No. 7034-99, had been granted
exemptions from prosecution and punishment for the offense of vote-buying, pursuant
to Section 28(4) of Republic Act No. 6848. The petitioner avers that the respondents-
appellants in I.S. No. 1-99-1080, are also exempt from criminal liability for the offense of
vote-selling; hence, should not be charged with the latter offense. Thus, Criminal Cases
Nos. 7960-00 to 7969-00 should be dismissed. The petitioner avers that the witnesses
had executed their respective affidavits as to where and how the accused in Criminal
Case No. 7034-99 committed the crimes of vote-buying. The petitioner also contends
that the charges of vote-selling filed against the said witnesses in Criminal Cases Nos.
7960-00 to 7969-00 were designed to frighten and discourage them from testifying
against the vote buyers, who are the accused in Criminal Case No. 7034-99. The
respondent, thus, committed a grave abuse of discretion amounting to excess or lack of
jurisdiction in denying its motion to dismiss Criminal Cases Nos. 7960-00 to 7969-00
grounded on the exemption of the accused therein.
For her part, the respondent avers that under Section 265 of the Omnibus Election
Code, both the vote-buyer and the vote-seller must be charged, investigated and
prosecuted by the petitioner for violation of Section 261(a)(b) of Republic Act No. 6648,
as provided for in Section 28 of Rep. Act No. 6698. She cites the ruling of the Court
in Lozano vs. Yorac, et al.,
[20]
to support her stand. She contends that vote-buyers
cannot be exempt from criminal liability for vote-buying because there can be no vote-
buying without someone selling his vote. Preliminary investigations of the charges for
vote-buying and vote-selling must be jointly conducted. This is to enable the
COMELECs Law Department to determine whether the witnesses in Criminal Case No.
7034-99 had voluntarily presented themselves to give information on the vote-buying of
the accused in Criminal Cases Nos. 7960-00 to 7969-00. Based on the records, the
witnesses in Criminal Case No. 7034-99 executed their sworn statements only after the
preliminary investigation of EO No. 98-219; hence, the Law Department of the petitioner
could not have intelligently determined whether the said witnesses were exempt from
prosecution or not.
We agree with the petitioner.
Section 261(a)(b) of the Omnibus Election Code penalizes vote-buying and vote-
selling and conspiracy to bribe voters.
(a) Vote-buying and vote-selling. (1) Any person who gives, offers or promises
money or anything of value, gives or promises any office or employment, franchise or
grant, public or private, or makes or offers to make an expenditure, directly or
indirectly, or cause an expenditure to be made to any person, association, corporation,
entity, or community in order to induce anyone or the public in general to vote for or
against any candidate or withhold his vote in the election, or to vote for or against any
aspirant for the nomination or choice of a candidate in a convention or similar election
process of a political party.
. . .
(b) Conspiracy to bribe voters. Two or more persons, whether candidates or not,
who come to an agreement concerning the commission of any violation of paragraph
(a) of this section and decide to commit it.
Not only principals but also accomplices and accessories are criminally liable for
election offenses.
[21]
Section 28 of Republic Act No. 6648 governs the prosecution of the
crimes of vote-buying and vote-selling, thus:
SECTION 28. Prosecution of Vote-buying and Vote-selling. The presentation 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 voters acceptance of money or other consideration from the
relatives, leaders or sympathizers of a 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.
Under the last paragraph of the said provision, any person guilty of vote-buying and
vote-selling who voluntarily gives information and willingly testifies on violations of
paragraphs (a) and (b) of Section 261 of the Omnibus Election Code shall be exempt
from prosecution and punishment for the offense with reference to which their
information and testimony were given, without prejudice to their liability for perjury
and false testimony, thus:
SEC. 265. Prosecution. . . .
. . .
The giver, offerer, and promisor as well as the solicitor, acceptor, recipient and
conspirator referred to in paragraphs (a) and (b) of Section 261 of Batas Pambansa
Blg. 881 shall be liable as principals: Provided, That any person, otherwise guilty
under said paragraphs who voluntarily gives information and willingly testifies on any
violation thereof in any official investigation or proceeding shall be exempt from
prosecution and punishment for the offenses with reference to which his information
and and testimony were given: Provided, further, That nothing herein shall exempt
such person from criminal prosecution for perjury or false testimony.
Under Section 265 of the Omnibus Election Code, the petitioner is mandated to
conduct a preliminary investigation of all election offenses and to prosecute the same.
The general rule is that the petitioner must investigate, charge and prosecute all those
committing election offenses without any discrimination to ensure a clean, orderly and
speedy elections. A joint preliminary investigation thereof must be conducted and the
appropriate Information filed in court against all the offenders. To enable the petitioner
to comply with its mandate to investigate and prosecute those committing election
offenses, it has been vested with authority under the last paragraph of Section 28 of
Republic Act No. 6648 to exempt those who have committed election offenses under
Section 261 (a) and (b) but volunteer to give informations and testify on any violation of
said law in any official investigation or proceeding with reference to which his
information and testimony is given. The law is an immunity statute which grants
transactional immunity to volunteers from investigation and prosecution for violation of
Section 261 (a) and (b) of the Omnibus Election Code.
[22]
The immunity statute seeks a
rational accommodation between the imperatives of the privilege against self-
incrimination and the legitimate demands of government to encourage citizens,
including law violators themselves, to testify against law violators. The statute operates
as a complete pardon for the offenses to which the information was given. The
execution of those statutes reflects the importance of the testimony therefor, and the
fact that many offenses are of such character that the only persons capable of giving
useful testimony are those implicated in the crimes. Indeed, their origins were in the
context of such offenses and their primary use has been to investigate and prosecute
such offenses.
[23]
Immunity from suit is the only consequence flowing from a violation of
ones constitutional right to be protected from unreasonable search and seizure, his
right to counsel and his right not to be coerced into confessing.
[24]
By voluntarily offering
to give information on violations of Section 261(a) and (b) and testify against the
culprits, one opens himself to investigation and prosecution if he himself is a party to
any violation of the law. In exchange for his testimony, the law gives him immunity from
investigation and prosecution for any offense in Section 261(a) and (b) with reference to
which his information is given. He is, therefore, assured that his testimony cannot be
used by the prosecutors and any authorities in any respect, and that his testimony
cannot lead to the infliction of criminal penalties on him.
[25]
The testimony of a voluntary
witness in accord with his sworn statement operates as a pardon for the criminal
charges to which it relates.
[26]

It bears stressing that one may voluntarily give information on violations of Section
261(a) and (b) and execute an affidavit before a complaint is filed with the petitioner, or
any provincial or city prosecutor. This may be done even during the preliminary
investigation or even after an Information is filed, on the condition that his testimony
must be in accord with or based on his affidavit. If such witness later refuses to testify or
testifies but contrary to his affidavit, he loses his immunity from suit, and may be
prosecuted for violations of Section 261(a) and (b) of the Omnibus Election Code,
perjury under Article 183 of the Revised Penal Code, or false testimony under Article
180 of the same Code.
The power to grant exemptions is vested solely on the petitioner. This power is
concomitant with its authority to enforce election laws, investigate election offenses and
prosecute those committing the same. The exercise of such power should not be
interfered with by the trial court. Neither may this Court interfere with the petitioners
exercise of its discretion in denying or granting exemptions under the law, unless the
petitioner commits a grave abuse of its discretion amounting to excess or lack of
jurisdiction.
There is no showing in the record that the petitioner committed abuse of discretion
in granting immunity to the witnesses in Criminal Case No. 7034-99 and in nullifying the
Resolution of the Provincial Prosecutor in I.S. No. 1-99-1080.
It cannot be over-emphasized that the authority given to the petitioner to grant
exemptions should be used to achieve and further its mandate to insure clean, honest,
peaceful and orderly elections.
The respondents reliance on the ruling of this Court in Lozano v. Yorac is
misplaced. The issue of the application of the immunity statute was not raised in that
case.
In sum then, the Court finds that the respondent committed a grave abuse of
discretion amounting to excess or lack of jurisdiction in denying the petitioners motion
to dismiss Criminal Cases Nos. 7960-00 to 7969-00 before it and the motion for
reconsideration of the said denial.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed
Orders dated February 20, 2001 and May 16, 2001 are SET ASIDE. Respondent
Judge Dolores Espaol, RTC, Imus, Cavite, Branch 90, is directed to dismiss Criminal
Cases Nos. 7960-00 to 7969-00. No costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-
Morales, Azcuna, and Tinga, JJ., concur.



[1]
Rollo, p. 26.
[2]
203 SCRA 270 (1991).
[3]
275 SCRA 780 (1997).
[4]
Id. at 27.
[5]
Rollo, p. 20.
[6]
Id. at 24.
[7]
Id. at 30.
[8]
Id. at 30-31.
[9]
Id. at 9.
[10]
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of
voters; investigate and, where appropriate, prosecute cases of violations of election laws,
including acts or omissions constituting election frauds, offenses, and malpractices.
[11]
Bay Tan v. COMELEC, G.R. No. 153945, February 4, 2003.
[12]
SEC. 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the
exclusive power to conduct preliminary investigation of all election offenses punishable under this
Code, and to prosecute the same. The Commission may avail of the assistance of other
prosecuting arms of the government: Provided, however, That in the event that the Commission
fails to act on any complaint within four months from his filing, the complaint may file the
complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and
prosecution, if warranted.
[13]
SEC. 2. Continuing Delegation of Authority to Other Prosecution Arms of the Government. The Chief
State Prosecutor, all Provincial and City Fiscals, and/or their respective assistants are hereby
given continuing authority, as deputies of the Commission, to conduct preliminary investigation of
complaints involving election offenses under the election laws which may be filed directly with
them, or which may be indorsed to them by the Commission or its duly authorized representatives
and to prosecute the same. Such authority may be revoked or withdrawn any time by the
Commission whenever in its judgment such revocation or withdrawal is necessary to protect the
integrity of the Commission, promote the common good, or when it believes that successful
prosecution of the case can be done by the Commission.
[14]
365 SCRA 190 (2001).
[15]
People v. Basilla, 179 SCRA 87 (1989).
[16]
Ibid; People v. Inting, 187 SCRA 788 (1990).
[17]
SEC. 10. Appeals from the Action of the State Prosecutor, Provincial or City Fiscal.Appeals from the
resolution of the State Prosecutor, or Provincial or City Fiscal on the recommendation or
resolution of investigating officers may be made only to the Commission within ten (10) days from
receipt of the resolution of said officials; Provided, however, that this shall not divest the
Commission of its power to motu proprio review, revise, modify or reverse the resolution of the
chief prosecutor and/or provincial/city prosecutors. The decision of the Commission on said
appeals shall be immediately executory and final. (Rule 34, Section 10, Rules of Procedure for
COMELEC).
[18]
People v. Judge Inting, supra.
[19]
Lim v. Court of Appeals, et al., 222 SCRA 279 (1993).
[20]
Supra.
[21]
Section 263, Omnibus Election Code.
[22]
Immunities are also provided:
Article XIII, Section 18 (8) of the 1987 Constitution which provides that the Commission of Human Rights
shall have the power to grant immunity from prosecution to any person whose testimony or
whose possession of documents or other evidence necessary or convenient to determine the
truth in any investigation conducted by it or under its authority.
Presidential Decree No. 749. Granting immunity from prosecution to givers of bribes and other gifts and to
their accomplices in bribery and other graft cases against public officers.
Presidential Decree No. 1731, October 8, 1980. Providing for rewards and incentives to government
witnesses and informants and other purposes.
Presidential Decree No. 1732, October 8, 1980. Providing immunity from criminal prosecution to
government witnesses and for other purposes.
Republic Act No. 6981, otherwise known as the Witness Protection Security and Benefit Act.
Section 3. Admission into the Program. Any person who has witnessed.
Section 17, Rule 119 of the Revised Rules on Criminal Procedure (Discharge of State Witness)
Sec. 17. Discharge of accused to be state witness. When two or more persons are jointly charged with
the commission of any offense, upon
[23]
Kastigar vs. United States, 33 L.ed. 2d. 345.
[24]
Id. at 22.
[25]
Id.
[26]
Piccirillo vs. New York State, 27 L. ed. 2d. 596 (1978).









lawphil

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Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 88919 July 25, 1990
PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HONORABLE ENRIQUE B. INTING, PRESIDING JUDGE, REGIONAL TRIAL COURT, BRANCH 38, DUMAGUETE CITY,
AND OIC MAYOR DOMINADOR S. REGALADO, JR., respondents.

GUTIERREZ, JR., J .:
Does a preliminary investigation conducted by a Provincial Election Supervisor involving election offenses have to be coursed
through the Provincial Fiscal now Provincial Prosecutor, before the Regional Trial Court may take cognizance of the investigation
and determine whether or not probable cause exists?
On February 6, 1988, Mrs. Editha Barba filed a letter-complaint against OIC-Mayor Dominador Regalado of Tanjay, Negros
Oriental with the Commission on Elections (COMELEC), for allegedly transferring her, a permanent Nursing Attendant, Grade I,
in the office of the Municipal Mayor to a very remote barangay and without obtaining prior permission or clearance from
COMELEC as required by law.
Acting on the complaint, COMELEC directed Atty. Gerardo Lituanas, Provincial Election Supervisor of Dumaguete City: (1) to
conduct the preliminary investigation of the case; (2) to prepare and file the necessary information in court; (3) to handle the
prosecution if the evidence submitted shows a prima facie case and (3) to issue a resolution of prosecution or dismissal as the
case may be. The directive to conduct the preliminary investigation was pursuant to COMELEC Resolution No. 1752 dated
January 14, 1986. The resolution, in turn, is based on the constitutional mandate that the COMELEC is charged with the
enforcement and administration of all laws relative to the conduct of elections for the purpose of ensuring free, orderly and
honest elections (sec. 2, Article XII-C of the 1973 Constitution) and on the Omnibus Election Code which implements the
constitutional provision. The Resolution provides, among others:
xxx xxx xxx
Further, Regional Election Directors and Provincial Election Supervisors are hereby authorized to conduct
preliminary investigations of election offenses committed in their respective jurisdictions, file the
corresponding complaints and/or informations in court whenever warranted, and to prosecute the same
pursuant to Section 265 of the Omnibus Election Code. (Rollo, p. 15)
After a preliminary investigation of Barba's complaint, Atty. Lituanas found a prima facie case. Hence, on September 26, 1988, he
filed with the respondent trial court a criminal case for violation of section 261, Par. (h), Omnibus Election Code against the OIC-
Mayor.
In an Order dated September 30, 1988, the respondent court issued a warrant of arrest against the accused OIC Mayor. It also
fixed the bail at five thousand pesos (P5,000.00) as recommended by the Provincial Election Supervisor.
However, in an order dated October 3, 1988 and before the accused could be arrested, the trial court set aside its September 30,
1988 order on the ground that Atty. Lituanas is not authorized to determine probable cause pursuant to Section 2, Article III of the
1987 Constitution. The court stated that it "will give due course to the information filed in this case if the same has the written
approval of the Provincial Fiscal after which the prosecution of the case shall be under the supervision and control of the latter."
(at p. 23, Rollo, emphasis supplied)
In another order dated November 22, 1988, the court gave Atty. Lituanas fifteen (15) days from receipt to file another information
charging the same offense with the written approval of the Provincial Fiscal.
Atty. Lituanas failed to comply with the order. Hence, in an order dated December 8, 1988, the trial court quashed the
information. A motion for reconsideration was denied.
Hence, this petition.
The respondent trial court justifies its stand on the ground that the COMELEC through its Provincial Election Supervisor lacks
jurisdiction to determine the existence of probable cause in an election offense which it seeks to prosecute in court because:
While under Section 265 of the Omnibus Election Code approved on December 3, 1985 duly authorized
legal officers of the Commission on Elections have the exclusive power to conduct preliminary
investigation of all election offenses and to prosecute the same, it is doubtful whether said authority under
the auspices of the 1973 Constitution, still subsists under the 1987 Constitution which has deleted in its
Section 2, Article III, the phrase "and such other responsible officer as may be authorized by law" in the
equivalent section and article of the 1973 Constitution. (Rollo, p. 24)
The petition is impressed with merit.
We emphasize important features of the constitutional mandate that " ... no search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by the judge ... " (Article III, Section 2, Constitution)
First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the
Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination.
Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination
of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the Prosecutor's
certification of probable cause is ineffectual. It is the report, the affidavits, the transcripts of stenographic notes (if any), and all
other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make his
determination.
And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the
issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for
trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no
confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The
preliminary investigation proper-whether or not there is reasonable ground to believe that the accused is guilty of the offense
charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is the function
of the Prosecutor.
The Court made this clear in the case of Castillo v. Villaluz (171 SCRA 39 [1989]):
Judges of Regional Trial Courts (formerly Courts of First Instance) no longer have authority to conduct
preliminary investigations. That authority, at one time reposed in them under Sections 13, 14 and 16 Rule
112 of the Rules of Court of 1964, (See Sec. 4, Rule 108, Rules of Court of 1940; People v. Solon, 47
Phil. 443, cited in Moran, Comments on the Rules, 1980 ed., Vol. 4, pp. 115-116) was removed from them
by the 1985 Rules on Criminal Procedure, effective on January 1, 1985, (Promulgated on November 11,
1984) which deleted all provisions granting that power to said Judges. We had occasion to point this out
in Salta v. Court of Appeals, 143 SCRA 228, and to stress as well certain other basic propositions,
namely: (1) that the conduct of a preliminary investigation is "not a judicial function ... (but) part of the
prosecution's job, a function of the executive," (2) that wherever "there are enough fiscals or prosecutors
to conduct preliminary investigations, courts are counseled to leave this job which is essentially executive
to them," and the fact "that a certain power is granted does not necessarily mean that it should be
indiscriminately exercised."
The 1988 Amendments to the 1985 Rules on Criminal Procedure, declared effective on October 1, 1988,
(The 1988 Amendments were published in the issue of Bulletin Today of October 29, 1988) did not
restore that authority to Judges of Regional Trial Courts; said amendments did not in fact deal at all with
the officers or courts having authority to conduct preliminary investigations.
This is not to say, however, that somewhere along the line RTC Judges also lost the power to make
apreliminary examination for the purpose of determining whether probable cause exists to justify the
issuance of a warrant of arrest (or search warrant). Such a power indeed, it is as much a duty as it is a
power has been and remains vested in every judge by the provision in the Bill of Rights in the 1935,
the 1973 and the present (1987) Constitutions securing the people against unreasonable searches and
seizures, thereby placing it beyond the competence of mere Court rule or statute to revoke. The
distinction must, therefore, be made clear while an RTC Judge may no longer conduct preliminary
investigations to ascertain whether there is sufficient ground for the filing of a criminal complaint or
information, he retains the authority, when such a pleading is filed with his court, to determine whether
there is probable cause justifying the issuance of a warrant of arrest. It might be added that this distinction
accords, rather than conflicts, with the rationale of Salta because both law and rule, in restricting to judges
the authority to order arrest, recognize that function to be judicial in nature.
We reiterate that preliminary investigation should be distinguished as to whether it is an investigation for the determination of a
sufficient ground for the filing of the information or it is an investigation for the determination of a probable cause for the issuance
of a warrant of arrest. The first kind of preliminary investigation is executive in nature. It is part of the prosecution's job. The
second kind of preliminary investigation which is more properly called preliminary examination is judicial in nature and is lodged
with the judge. It is in this context that we address the issue raised in the instant petition so as to give meaning to the
constitutional power vested in the COMELEC regarding election offenses.
Article IX C Section 2 of the Constitution provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions
(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall.
xxx xxx xxx
(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of
votes, investigate and, where appropriate, prosecute cases of violation of election laws, including acts or
omission constituting election frauds, offenses, and practices. (Emphasis supplied)
In effect the 1987 Constitution mandates the COMELEC not only to investigate but also to prosecute cases of violation of
election laws. This means that the COMELEC is empowered to conduct preliminary investigations in cases involving election
offenses for the purpose of helping the Judge determine probable cause and for filing an information in court. This power is
exclusive with COMELEC.
The grant to the COMELEC of the power, among others, to enforce and administer all laws relative to the
conduct of election and the concomittant authority to investigate and prosecute election offenses is not
without compelling reason. The evident constitutional intendment in bestowing this power to the
COMELEC is to insure the free, orderly and honest conduct of elections, failure of which would result in
the frustration of the true will of the people and make a mere idle ceremony of the sacred right and duty of
every qualified citizen to vote. To divest the COMELEC of the authority to investigate and prosecute
offenses committed by public officials in relation to their office would thus seriously impair its effectiveness
in achieving this clear constitutional mandate.
From a careful scrutiny of the constitutional provisions relied upon by the Sandiganbayan, We perceived
neither explicit nor implicit grant to it and its prosecuting arm, the Tanodbayan, of the authority to
investigate, prosecute and hear election offenses committed by public officers in relation to their office as
contradistinguished from the clear and categorical bestowal of said authority and jurisdiction upon the
COMELEC and the courts of first instance under Sections 182 and 184, respectively, of the Election Code
of 1978.
An examination of the provisions of the Constitution and the Election Code of 1978 reveals the clear
intention to place in the COMELEC exclusive jurisdiction to investigate and prosecute election offenses
committed by any person, whether private individual or public officer or employee, and in the latter
instance, irrespective of whether the offense is committed in relation to his official duties or not. In other
words, it is the nature of the offense and not the personality of the offender that matters. As long as the
offense is an election offense jurisdiction over the same rests exclusively with the COMELEC, in view of
its all-embracing power over the conduct of elections. (Corpus v. Tanodbayan, 149 SCRA 281 [1987])
Hence, the Provincial Fiscal, as such, assumes no role in the prosecution of election offenses. If the Fiscal or Prosecutor files an
information charging an election offense or prosecutes a violation of election law, it is because he has been deputized by the
COMELEC. He does not do so under the sole authority of his office. (People v. Basilla, et al., G.R. Nos. 83938-40, November 6,
1989).itc-asl In the instant case, there is no averment or allegation that the respondent Judge is bringing in the Provincial Fiscal as a
deputy of COMELEC. He wants the Fiscal to "approve" the COMELEC's preliminary investigation.
It is to be noted that on February 27, 1987 (when the 1987 Constitution was already in effect) the President issued Executive
Order No. 134 which was the ENABLING ACT FOR ELECTIONS FOR MEMBERS OF CONGRESS ON MAY 11, 1987 AND
FOR OTHER PURPOSES." Section 11 thereof provides:
Prosecution. The Commission shall, through its duly authorized legal officers, have exclusive power to
conduct preliminary investigation of all election offenses punishable as provided for in the preceding
section, and to prosecute the same: Provided, That in the event that the Commission fails to act on any
complaint within two (2) months from filing, the complainant may file the complaint with the Office of the
Fiscal or with the Department of Justice for proper investigation and prosecution, if warranted.
The Commission may avail of the assistance of other prosecuting arms of the government.
It is only after a preliminary examination conducted by the COMELEC through its officials or its deputies that section 2, Article III
of the 1987 Constitution comes in. This is so, because, when the application for a warrant of arrest is made and the information is
filed with the court, the judge will then determine whether or not a probable cause exists for the issuance of a warrant of arrest.
Bearing these principles in mind, it is apparant that the respondent trial court misconstrued the constitutional provision when it
quashed the information filed by the Provincial Election Supervisor. As indicated above what the respondent trial court should
have done was to enforce its September 30, 1988 order, to wit:
Pursuant to Circular No. 12 of the Chief Justice of the Supreme Court dated June 30, 1987 and
considering that after a personal examination of the evidence submitted by the investigating Provincial
Election Supervisor III Negros Oriental (Designated Legal Officer), there is reasonable ground for this
Court to rely on the certification of said Provincial Election Supervisor III in the information that a probable
cause exists, let a warrant issue for the arrest of the accused filing the bail at FIVE THOUSAND
(P5,000.00) PESOS as recommended by the Provincial Election Supervisor III.
The order to get the approval of the Provincial Fiscal is not only superfluous but unwarranted.
WHEREFORE, the instant petition is GRANTED. The questioned Orders dated October 3, 1988, November 22, 1988 and
December 8, 1988 are REVERSED and SET ASIDE. The respondent trial court's Order dated September 30, 1988 is
REINSTATED. The respondent court is ordered to proceed hearing the case with deliberate speed until its termination.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Grio-Aquino,
Medialdea and Regalado JJ., concur.

The Lawphil Project - Arellano Law Foundation



EN BANC
[G.R. Nos. 140850-51. May 4, 2000]
EUGENIO "JING-JING" FAELNAR, petitioner, vs. PEOPLE OF THE
PHILIPPINES, HON. RAMON CODILLA, in his capacity as Presiding
Judge of the RTC, Branch 19, Cebu City, and COMMISSION ON
ELECTIONS, respondents.
D E C I S I O N
MENDOZA, J .:
This is a petition for certiorari to set aside the order, dated July 29, 1999, of the
Regional Trial Court, Branch 19, Cebu City, denying petitioners motion to quash in
Criminal Cases Nos. CBU-49941
[1]
and 49942,
[2]
and the order, dated October 4, 1999,
denying petitioners motion for reconsideration.
The facts are as follows: Nexold
On April 8, 1997, petitioner Eugenio Faelnar filed a certificate of candidacy for the
position of Barangay Chairman of Barangay Guadalupe, Cebu City in the May 12, 1997
barangay elections. The following day, on April 9, 1997, a basketball tournament,
dubbed the "2nd JING-JING FAELNARS CUP," opened at the Guadalupe Sports
Complex and lasted up to April 30, 1997. This gave rise to a complaint for
electioneering filed against petitioner and Cecilio Gillamac by Antonio Luy. The
complaint alleged that the basketball tournament was actually a campaign gimmick
staged outside the campaign period which officially started on May 1, 1997, in violation
of the Omnibus Election Code. Luy alleged that: (1) during the tournament, a streamer
bearing petitioners name was placed on the facade of the Guadalupe Sports Complex;
(2) petitioners name was repeatedly mentioned over the microphone during the games;
(3) the tournament was widely published in the local newspaper; and (4) a raffle
sponsored by Cecilio Gillamac was held with home appliances given away as prizes.
Petitioner denied participation in the tournament and claimed that its major sponsor was
Gillamac Marketing, Inc. He contended that the same was purely a sporting event for
the benefit of the youth. Manikx
The complaint was investigated by Atty. Edwin Cadungog, election officer of Cebu City,
who later recommended the dismissal of the charges against petitioner and Gillamac.
On the other hand, the Law Department of the COMELEC recommended the filing of a
case against petitioner and Gillamac for violation of 80,
[3]
in relation to 262,
[4]
of the
Omnibus Election Code, and 50 of COMELEC Resolution No. 2888, in relation to 12
of Republic Act No. 6679.
[5]

In its Resolution No. 97-3040, dated September 16, 1997, the COMELEC en banc
resolved to dismiss the case. However, on motion of Antonio Luy, the COMELEC
reconsidered its action and ordered the filing of the necessary Informations against
petitioner and Gillamac.
Accordingly, petitioner and Gillamac were formally charged in the Regional Trial Court,
Cebu City under two Informations in Criminal Cases Nos. CBU-49941 and CBU-49942.
Petitioner moved to quash the information or, in the alternative, for reinvestigation of the
case, contending that Resolution No. 97-3040, which dismissed the complaint against
him, was immediately executory and could no longer be reconsidered. Misox
Petitioners motion was denied by the trial court in an order dated July 29, 1999. He
moved for reconsideration, but his motion was likewise denied by the court in its order,
dated October 4, 1999. Hence this petition.
Petitioner reiterates his argument in the trial court that COMELEC Resolution No. 97-
3040, which dismissed the complaint against him, can no longer be reconsidered by the
COMELEC. He contends that under the Rules of Procedure of the COMELEC, the
dismissal of the complaint was immediately final and executory. Additionally, he avers
that Antonio Luys Motion for Reconsideration of Resolution No. 97-3040 is a prohibited
pleading under the Commissions Rules of Procedure. He avers that since the
resolution in question was immediately final and executory, it was no longer within the
power of the COMELEC to reconsider. Consequently, Resolution No. 98-2914, in
directing the filing of charges in court, was "ultra-vires," and the Informations filed
against him should have been quashed.
[6]

The petition is without merit.
First. While the instant petition challenges the trial courts orders denying petitioners
motion to quash the complaints in Criminal Cases Nos. CBU-49941 and 49942, the
grounds relied upon by petitioner are directed at the validity of Resolution No. 98-2914
of the COMELEC. Thus, petitioner prays that said resolution be declared null and void.
[7]

This petition is nothing but an attempt to circumvent a final resolution of the COMELEC.
Resolution No. 98-2914 was promulgated by the COMELEC en banc on October 29,
1998. Petitioners remedy was to seek its annulment by way of a special civil action
of certiorari under Rule 65 of the Rules of Court. Rule 64, 2 provides:
SEC. 2. Mode of Review. A judgment or final order or resolution of the
Commission on Elections and the Commission on Audit may be brought
by the aggrieved party to the Supreme Court on certiorari under Rule 65,
except as hereinafter provided.
Sec. 3 of said Rule provides that such petition shall be filed within 30 days from notice
of the resolution sought to be reviewed. No such petition was ever filed. The present
petition to set aside the orders of the trial court denying its motion to quash and motion
for reconsideration was filed only on November 12, 1999, more than a year after
Resolution No. 98-2194 was promulgated on October 29, 1998. Consequently, the
resolution is now final and binding upon the parties. Maniks
Even if said resolution is erroneous for being contrary to the provisions of the Rules of
Procedure of the COMELEC, the same is not void. Since it has become final and
executory, it is already binding and effective.
[8]

Second. The above discussion should be enough to dispose of this petition. However,
we think there is an important question of law that must not be left undecided, i.e., is the
resolution of the COMELEC dismissing the criminal complaint for violation of the
election laws immediately final and executory, as petitioner contends?
The contention is untenable. In support of his claims, petitioner cites Rule 13, 1(d) of
the Rules of Procedure of the COMELEC which provides:
SECTION 1. What pleadings are not allowed. - The following pleadings
are not allowed:
. . . .
(d) motion for reconsideration of an en banc ruling, resolution, order or
decision; . . . .
The above quoted provision, however, is taken from the 1988 COMELEC Rules of
Procedure which has already been amended. The 1993 Rules of Procedure, now
provides:
Rule 13. - Prohibited Pleadings.
SECTION 1. What pleadings are not allowed. The following pleadings
are not allowed:
. . . .
(d) motion for reconsideration of an en banc ruling, resolution, order or
decision except in election offense cases; . . . (Emphasis added).
Under the present rule, therefore, a motion for reconsideration of a ruling, resolution or
decision of the COMELEC en banc is allowed in cases involving election offenses.
Here, there is no question that what is involved is a resolution of the COMELEC en
banc in an election offense. Hence, a motion for reconsideration of such resolution is
allowed under the Rules of Procedure of the COMELEC.
Petitioner likewise invokes Rule 34, 10 of the COMELEC Rules of Procedure which
provides that Manikanx
SEC. 10. Appeals from the Action of the State Prosecutor, Provincial or
City Fiscal. Appeals from the resolution of the State Prosecutor, or
Provincial or City Fiscal on the recommendation or resolution of
investigating officers may be made only to the Commission within ten (10)
days from receipt of the resolution of said officials, provided, however that
this shall not divest the Commission of its power to motu proprio review,
revise, modify or reverse the resolution of the chief state prosecutor and/or
provincial/city prosecutors.The decision of the Commission on said
appeals shall be immediately executory and final. (Emphasis added)
Even a cursory reading of the above rule, however, will show that it governs appeals
from the action of the State Prosecutor or Provincial or City Fiscal on the
recommendation or resolution of investigating officers. The present case does not
involve such an appeal but a resolution of the COMELEC itself in the exercise of its
exclusive power to conduct preliminary investigation of election offense cases.
[9]
Such
distinction can be easily explained.
In cases where the State Prosecutor, or Provincial or City Fiscal exercises the
delegated power
[10]
to conduct preliminary investigation of election offense cases, after
the investigating officer submits his recommendation, said officers already resolve the
issue of probable cause. From such resolution, appeal to the COMELEC lies. As the
exercise by the Commission of its review powers would, at this point, already constitute
a second look on the issue of probable cause, the COMELECs ruling on the appeal
would be immediately final and executory. Oldmisox
On the other hand, if the preliminary investigation of a complaint for election offense is
conducted by the COMELEC itself, its investigating officer prepares a report upon which
the Commissions Law Department makes its recommendation to the COMELEC en
banc on whether there is probable cause to prosecute. It is thus the COMELEC en banc
which determines the existence of probable cause.
[11]
Consequently, an appeal to the
Commission is unavailing. Under the present Rules of Procedure of the COMELEC,
however, a motion for reconsideration of such resolution is allowed. This effectively
allows for a review of the original resolution, in the same manner that the COMELEC,
on appeal or motu proprio, may review the resolution of the State Prosecutor, or
Provincial or City Fiscal.
Reliance by petitioner upon Rule 34, 10 of the COMELEC Rules of Procedure is thus
without any basis.
WHEREFORE, the petition for certiorari is DENIED.
SO ORDERED. MENDOZA
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Panganiban, Quisumbing, Buena, Gonzaga-
Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Melo, Kapunan, and Purisima, JJ., on leave.
Pardo, J., no part - was COMELEC Chairman at that time.



[1]
For violation of 50 of COMELEC Resolution No. 2888, in relation to 12 of Republic Act No. 6679.
[2]
For violation of 80, in relation to 262 of the Omnibus Election Code.
[3]
SEC. 80. Election campaign or partisan political activity outside campaign period. It shall be unlawful for any
person, whether or not a voter or candidate, or for any party, or association of persons, to engage in an election
campaign or partisan political activity except during the campaign period: Provided; That political parties may hold
political conventions or meetings to nominate their official candidates within thirty days before the commencement
of the campaign period and forty-five days for Presidential and Vice-Presidential election. (Sec. 35, 1978 EC)
[4]
SEC. 262. Other election offenses. Violation of the provisions, or pertinent portions, of the following sections
of this Code shall constitute election offenses: Sections 9, 18, 74, 75, 76, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 95,
96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 122, 123, 127, 128, 129, 132, 134,
135, 145, 148, 150, 152, 172, 173, 174, 178, 180, 182, 184, 185, 186, 189, 190, 191, 192, 194, 195, 196, 197, 198,
202, 203, 204, 205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 216, 217, 218, 219, 220, 223, 229, 230, 231,
233, 234, 235, 236, 239, and 240.
[5]
An Act to Amend R.A. No. 6653 to Postpone the Barangay Elections to March 28, 1989, Prescribing Additional
Rules Governing The Conduct Of Barangay Elections And For Other Purposes.
[6]
Petition, pp. 7-10; Rollo, pp. 9-12. Petitioner cites Rule 117, 3 of the Rules of Criminal Procedure which
provides that
SEC. 3. Grounds. The accused may move to quash the complaint or information on any of the following grounds:
. . . .
(c) That the office who filed the information had no authority to do so;
. . . .
[7]
Petition, p. 11; Rollo, p. 13.
[8]
See Mercado v. Court of Appeals, 162 SCRA 75 (1988)
[9]
Comelec Rules of Procedure, Rule 34, 1 provides that:
SECTION 1. Authority of the Commission to Prosecute Election Offenses. The Commission shall have the
exclusive power to conduct preliminary investigation of all election offenses punishable under the election laws and
to prosecute the same, except as may otherwise be provided by law.
[10]
The basis of such power is Rule 34, 2 of the COMELEC Rules of Procedure which provides that
SEC. 2. Continuing Delegation of Authority to Other Prosecution Arms of the Government. The Chief State
Prosecutor, all Provincial and City Fiscals, and/or their respective assistants are hereby given continuing authority,
as deputies of the Commission, to conduct preliminary investigation of complaints involving election offenses under
the election laws which may be filed directly with them, or which may be indorsed to them by the Commission or its
duly authorized representatives and to prosecute the same. Such authority may be revoked or withdrawn any time by
the Commission whenever in its judgment such revocation or withdrawal is necessary to protect the integrity of the
Commission, promote the common good, or when it believes that successful prosecution of the case can be done by
the Commission.
[11]
Rule 34, 9(b) of the COMELEC Rules of Procedure provides that
(b) In cases investigated by the lawyers or the field personnel of the Commission, the Director of the Law
Department shall review and evaluate the recommendation of said legal officer, prepare a report and make a
recommendation to the Commission affirming, modifying or reversing the same which shall be included in the
agenda of the succeeding meeting en banc of the Commission. If the Commission approves the filing of an
information in court against the respondent/s, the Director of the Law Department shall prepare and sign the
information for immediate filing with the appropriate court.

EN BANC
[G.R. No. 131778. January 28, 2000]
HERMAN TIU LAUREL, petitioner, vs. THE HONORABLE PRESIDING
JUDGE, REGIONAL TRIAL COURT OF MANILA, BRANCH 10, and the
COMMISSION ON ELECTIONS, respondents.N_
D E C I S I O N
QUISUMBING, J .:
Petitioner seeks to annul the Court of Appeals decision, as well as its resolution denying
reconsideration, in C.A. G.R. SP No. 42618, which upheld the trial courts denial of his motion
to quash the charges against him for falsification of public documents and violation of the
Omnibus Election Code.
The factual antecedents are as follows:
On 13 December 1995, the Hon. Bernardo P. Pardo, Chairman of respondent
COMELEC
[1]
sent a verified letter-complaint to Jose P. Balbuena, Director of the
Law Department of the said respondent, charging petitioner with "Falsification of
Public Documents" and violation of [Section 74] of the Omnibus Election Code,
stating in the same letter the facts on which he relies upon to support his
accusations, which are, inter alia, that petitioner "was born in Manila on October
8, 1951 xxx (and) (a)t the time of his birth, both his father and mother were
Chinese citizens. xxx On February 20, 1995, Herman Tiu Laurel filed a certificate
of candidacy with the Law Department xxx for the position of Senator, stating
that he is a natural-born Filipino citizen xxx. This statement xxx is false and
constitutes not only a falsification of public documents but also a violation of the
Omnibus Election Code."
On the basis of the said Complaint, an investigation was conducted by the
COMELEC Law Department, docketed as EO Case No. 95-843 entitled The Hon.
Bernardo P. Pardo, Complainant, versus Herman Tiu Laurel, Respondent.
Thereafter, or on 18 January 1996, a Report was made by the said Department
recommending the filing of an Information against petitioner for violation of the
Omnibus Election Code, as well as for Falsification under Articles 171 and 172 of
the Revised Penal Code. During an en banc meeting of the COMELEC held on 25
January 1997, the said Report was deliberated upon, after which COMELEC
resolved:
"1. To file the necessary information against respondent Herman
Tiu Laurel with the appropriate court for violation of Section 74, in
relation to Section 262 of the Omnibus Election Code, the
prosecution of which shall be handled by a lawyer to be designated
by the Director IV of the Law Department with the duty to render
periodic report after every hearing.
2. To file a criminal complaint with the appropriate court against
the same respondent for falsification defined and penalized under
paragraph 4, Article 171, in relation to paragraph 1, Article 172 of
the Revised Penal Code."N_io
Pursuant thereto, on 05 February 1995, an information for "Violation of Section
74, in relation to Section 262 of the Omnibus Election Code" was filed by
Director Jose F. Balbuena against petitioner, which was raffled to respondent
court, docketed as Crim. Case No. 96-147550.
On 14 February 1996, or after the filing of the Information, plaintiff filed a
Motion for Inhibition in EO Case No. 95-843, seeking the inhibition of the entire
COMELEC, alleging that "(r)espondent (petitioner herein) is not confident that
this present forum is capable of fairly and impartially rendering a resolution on
the merits of the above-captioned complaint", [stating] his reasons therefor. In a
Minute Resolution, the COMELEC informed petitioner "that the Commission has
lost jurisdiction over the case as it is now before the Regional Trial Court of
Manila xxx." With respect to the Information, plaintiff in turn filed on 07 May
1996 a Motion to Quash the same, alleging lack of jurisdiction and lack of
authority on the part of Director Balbuena to file the information. On 16 May
1996, respondent COMELEC, through Director Aliodem D. Dalaig of the Law
Department, filed an Opposition thereto. On 20 May 1996, plaintiff filed his
Reply.
On 11 September 1996, respondent court issued the first questioned order, the
decretal portion of which reads:
"WHEREFORE, in view of all the foregoing, the Motion to Quash
together with the Alternative Motions contained therein is hereby
denied."
To this, petitioner duly excepted on 09 October 1996 by filing a Motion for
Reconsideration, which respondent court denied in its second questioned order
dated 29 October 1996."
[2]

From the denial of his Motion for Reconsideration, petitioner then filed a petition
for certiorari before the Court of Appeals. He alleged, in essence, that the COMELEC violated
its own rules of procedure on the initiation of the preliminary investigation and the consequent
filing of a criminal complaint against him.
[3]
The Court of Appeals upheld the trial court and ruled
that the proper procedure was followed by the COMELEC.
According to the Court of Appeals, the complaint signed by Pardo was in the nature of a motu
proprio complaint filed by the COMELEC and signed by the Chairman, pursuant to Rule 34,
Section 4 of the COMELEC Rules of Procedure. Pardos referral of the complaint to the
COMELECs Law Department and the subsequent preliminary investigation were likewise done
in accordance with the rules.
The complaint being an official act, it bears the presumption of having been regularly
performed.E_v_'
The Court of Appeals added that even if the complaint were to be considered as a complaint filed
by a private citizen, still, Pardo as head of the COMELEC had the authority to direct
commencement of a preliminary investigation in connection therewith.
At the same time, however, the Court of Appeals also directed the trial court to remand the case
to the COMELEC for reception of petitioners motion for reconsideration of the COMELEC
resolution dated January 25, 1996,
[4]
which approved the filing of a criminal complaint against
petitioner. Petitioner claimed that he failed to receive copy of this resolution and, consequently,
failed to move for its reconsideration.
[5]

The Court of Appeals denied petitioners motion for reconsideration of its decision. Hence, the
present petition, in which petitioner raises the following issues:
A. It was error for the Court of Appeals to hold there was no flaw in the procedure
followed by the COMELEC in the conduct of the preliminary investigation.
B. The Court of Appeals erred in holding that petitioners protestations on
COMELECs having acted as complainant, investigator, prosecutor, judge and
executioner in the conduct of the preliminary investigation ring hollow.
[6]

Petitioner asserts that the preliminary investigation was defective since the complaint was not
initiated in accordance with applicable law and rules. He alleges that the information filed with
the trial court was void and respondent judge could not have acquired jurisdiction over the case.
Petitioner cites Section 3, Rule 34 of the COMELEC Rules of Procedure, which provides:
"Sec. 3. Initiation of complaint. -- Initiation of complaint for election offenses
may be done motu proprio by the Commission, or upon written complaint by
any citizen xxx." (Emphasis by petitioner)
Petitioner contends that the complaint filed by Pardo was not in the nature of a motu
proprio complaint filed by the COMELEC since Pardo, by himself alone, was not the
COMELEC. If the complaint were to be considered as one filed by a private citizen, then Pardo
as a citizen did not have the requisite authority to file his complaint directly with the
COMELECs Law Department. Petitioner contends that only the COMELEC has the capacity to
do so, under Section 5 of said Rule 34.Eooo ioo
"SEC. 5. Referral for Preliminary Investigation. - If the complaint is
initiated motu proprio by the Commission, or is filed with the Commission by any
aggrieved party, it shall be referred to the Law Department for investigation. xxx"
Petitioner argues that a resolution of the COMELEC en banc is necessary for the referral of a
complaint to the Law Department. He asserts that Pardo did not have the authority, as a private
citizen, to directly file his complaint with the Law Department. According to petitioner, Pardo
should have filed his complaint with the COMELEC and the latter should have passed a
resolution en banc referring the matter to the Law Department.
[7]
Petitioner insists that only the
COMELEC, through an en banc resolution, may direct the Law Department to conduct an
investigation. Thus, it was wrong for Pardo to direct the Law Department to conduct a
preliminary investigation, as he did in his complaint, and the latter "could and should not have
acted pursuant to Chairman Pardos complaint."
[8]

Moreover, petitioner avers that the resolution of the COMELEC en banc dated January 25, 1996,
issued after the preliminary investigation and which recommended the filing of charges against
him, did not cure the irregularities present during the preliminary investigation.
Lastly, petitioner contends he could no longer expect impartiality and fairness from the
COMELEC. In his Memorandum, petitioner declared,
"This was the then COMELEC boss, personally and by himself, (who) gathered
the evidence in an attempt to nail down petitioner. The then COMELEC
Chairman was the complainant as well. And, as his letter-complaint
incontrovertibly shows, it was also the then COMELEC Chairman who directed
that a preliminary investigation be conducted and completed within 30 days."
[9]

Petitioner concludes that the COMELEC could not but be partial in this case, hence the
proceedings are fatally biased against him.Eoooo
On the other hand, the COMELEC in its Memorandum
[10]
contends that the complaint was
properly filed since Section 4(b), Rule 34 of the COMELEC Rules of Procedure specifically
states that the complaint shall be filed with the Law Department. It is of no moment that the
complainant was, at that time, the chairman of the COMELEC himself. This should not preclude
him from filing a complaint with the COMELEC for alleged violations of election laws,
provided he does not participate in the discussions regarding the case. The COMELEC points out
that, indeed, Pardo did not participate in the deliberation of his own complaint.
On the charge that there can be no fairness in the investigation of the complaint filed by the
COMELEC chairman, the COMELEC points out that the Commission is a collegiate body. It is
the entire membership of the Commission that deliberates and decides on cases brought before it
and not just the chairman. To disallow the COMELEC in this case from conducting a
preliminary investigation would be to tie the hands of the Commission and prevent it from
performing its constitutional mandate. It could also cause a deluge in the number of election law
violators.
In addition, the COMELEC asserts that petitioner was given the opportunity to present evidence
in his defense while Pardos complaint was being investigated by the Commission.
The Constitution gives the COMELEC the power to investigate and, where appropriate, to
prosecute cases of violations of election laws.
[11]
This power is an exclusive prerogative of the
COMELEC.
[12]

There are two ways through which a complaint for election offenses may be initiated. It may be
filed by the COMELEC motu proprio, or it may be filed via written complaint by any citizen of
the Philippines, candidate, registered political party, coalition of political parties or organizations
under the partylist system or any accredited citizens arms of the Commission.
[13]

Motu proprio complaints may be signed by the Chairman of the COMELEC and need not be
verified.
[14]

On the other hand, complaints filed by parties other than the COMELEC must be verified and
supported by affidavits and other evidence.
[15]

The complaint shall be filed with the COMELEC Law Department or with the offices of election
registrars, provincial election supervisors or regional election directors, or of the state prosecutor,
provincial or city fiscal.
[16]

Whether initiated motu proprio or filed with the COMELEC by any other party, the complaint
shall be referred to the COMELEC Law Department for investigation. Upon direction of the
Chairman, the preliminary investigation may be delegated to any lawyer of the Department, any
Regional Election Director or Provincial Election Supervisor, or any COMELEC
lawyer.
[17]
E_o' oooo
The complaint subject of this case was filed by then COMELEC Chairman Bernardo P. Pardo. It
was addressed to Jose P. Balbuena, director of the COMELEC Law Department. It starts with the
following statement:
"I hereby charge former senatorial candidate Herman Tiu Laurel with falsification
of public documents and violation of the Omnibus Election Code."
[18]

In the same complaint, Pardo directed the conduct of a preliminary investigation of the charges
he leveled against Tiu Laurel, to be completed within 30 days. In the verification at the end of
the complaint, he stated that, "I am the complainant in the ... letter complaint..."
[19]

Was the complaint one initiated by the COMELEC motu proprio?
To our mind, the complaint in question in this case is one filed by Pardo in his personal capacity
and not as chairman of the COMELEC. This is obvious from the opening sentence of the
complaint, which starts with "I hereby charge..." It is also manifest in the verification of the
complaint in which Pardo stated that he is the complainant therein. The fact that the complaint
was verified is another indication that it was filed by a private citizen, for only such complaints
require verification. Pardo must have known this.
Besides, the COMELEC itself, in its Comment filed before this Court, admitted that the
complaint was initiated in Pardos "individual capacity."
[20]

Could Pardo then have, in his personal capacity, filed his complaint directly with the
COMELECs Law Department? We believe he could, under Rule 34, Section 4 of the
COMELEC Rules of Procedure, which clearly provides:
SEC. 4. Form of Complaint and Where to File. - xxxEut co
(b) The complaint shall be filed with the Law Department of the
Commission; or with the offices of the Election Registrars,
Provincial Election Supervisors or Regional Election Directors, or
the State Prosecutor, Provincial Fiscal or City
Fiscal..."(Underscoring supplied.)
But petitioner insists, and this is the crux of his arguments, that absent an en banc resolution
directing the Law Department to conduct a preliminary investigation, there could be no valid
investigation. Without a valid preliminary investigation, no valid information could be filed
against him. He cites Rule 34, Section 5 of the COMELEC Rules of Procedure in support of his
claim.
"SEC. 5. Referral for Preliminary Investigation.-- If the complaint is
initiated motu proprio by the Commission, or is filed with the Commission by any
aggrieved party, it shall be referred to the Law Department for investigation.
Upon direction of the Chairman of the Commission, the preliminary investigation
may be delegated to any lawyer of said Department, or to any of the Regional
Election Directors or Provincial Election Supervisors, or any lawyer of the
Commission."
However, we fail to see from Section 5 the requirement that only the COMELEC en banc may
refer a complaint to the Law Department for investigation. What Section 5 states only is that it is
the Law Department, not another office, of the COMELEC which may conduct an investigation
into the allegations in the complaint. There is no specific requirement as to how referral to the
department shall be made. We cannot read into the rules what simply is not there.
Section 5 refers to two situations, one of which is where a complaint filed by a party other than
the COMELEC is addressed to the Commission itself. Since it is not the entire Commission that
conducts the preliminary investigation, the complaint must necessarily be referred to its Law
Department. Under the rules, this department is tasked with conducting preliminary
investigations of complaints filed before the COMELEC.
[21]
Where, as in this case, the complaint
was directly filed with the Law Department under Section 4 of Rule 34, obviously there is no
need to refer such complaint to the same Law Department.
There is likewise no rule against the COMELEC chairman directing the conduct of a preliminary
investigation, even if he himself were the complainant in his private capacity. In fact, under
Section 5, the preliminary investigation may be delegated to any of those officials specified in
the rule, upon the direction of the COMELEC chairman. We agree with the Court of Appeals
observation that,0uio'
"[E]ven if we regard the complaint to have been filed by Chairman Pardo as a
private citizen, there is no rhyme nor reason why he cannot direct the Law
Department to perform an investigation and delegate the conduct of preliminary
investigation to any lawyer of said Department in his capacity as Chairman of the
Commission on Elections. The justification is, in so doing, he was merely acting
pursuant to Section 5 of Rule 34 of the COMELEC Rules of Procedure. No clash
or conflict could be attributed in his performance of the said acts, one as a private
citizen, and the other as Chairman of COMELEC, as it would not be him but
another lawyer in the Legal Department that would actually be carrying out the
preliminary investigation. The outcome of the inquiry, therefore, could not, per
se, be considered as sullied with bias."
[22]

Clearly, the applicable rules were followed in the conduct of the preliminary investigation of
Pardos complaint against petitioner, contrary to the latters assertion.
Anent petitioners contention that bias tainted the preliminary investigation, we again quote with
approval from the ruling of the Court of Appeals:
"There may be evidence that the relations between petitioner and Chairman Pardo
are not exactly cordial. However, this should not detract from the validity of the
preliminary investigation and corresponding Information filed against the
petitioner, for two (2) important reasons: First, the records will readily support the
conclusion that there is sufficient evidentiary basis to at least find probable cause
to indict the petitioner for violation of the Omnibus Election Code; and second, it
also appears from the records that, apart from directing the Law Department to
launch an investigation, Chairman Pardo had no other participation in the
proceedings which led to the filing of the Information."
[23]

The entire COMELEC cannot possibly be restrained from investigating the complaint filed
against petitioner, as the latter would like the courts to do. The COMELEC is mandated by no
less than the Constitution to investigate and prosecute, when necessary, violations of election
laws. This power is lodged exclusively with the COMELEC. For the entire Commission to
inhibit itself from investigating the complaint against petitioner would be nothing short of an
abandonment of its mandate under the Constitution and the Omnibus Election Code. This we
cannot allow.E_' uio
As regards the alleged failure of the COMELEC to serve petitioner with a copy of its resolution
recommending the filing of an information against him, this is denied by the COMELEC.
However, the Court of Appeals found that, indeed, there is no showing that petitioner was ever
sent a copy of said resolution. This factual finding is binding upon this Court. Thus, as ruled by
the Court of Appeals, the case should be remanded to the COMELEC for reception of
petitioners motion for reconsideration of the January 25, 1996 resolution, if petitioner is still
interested in submitting one. The proceedings in Criminal Case No. 96-147550 should be
suspended while resolution of the motion that may be filed is pending.
WHEREFORE, the instant petition is hereby DENIED and the decision of the Court of Appeals
in CA-G.R. SP No. 42618 is AFFIRMED.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Purisima, Buena, Gonzaga-Reyes,
Ynares-Santiago, and De Leon, Jr., JJ., concur.
Pardo, J., no part.0uio' o_
Puno, and Panganiban, JJ., in the result.



[1]
Now a Justice of this Court.
[2]
Rollo, pp. 79-80.
[3]
Id. at 81.
[4]
Minute Resolution No. 96-0231; Rollo, p. 89.
[5]
Rollo, p. 45.
[6]
Id. at 31.
[7]
Id. at 33.
[8]
Id. at 34.
[9]
Id. at 239.
[10]
Rollo, p. 272. As prayed for, OSG was excused from filing a Memorandum to avoid redundancy. (Rollo, p. 308).
[11]
CONST., Art. IX-C, Sec. 2(6).
[12]
OMNIBUS ELECTION CODE, Sec. 265.
[13]
COMELEC Rules of Procedure, Rule 34, Sec. 3.
[14]
Id., Sec. 4(a).
[15]
Ibid.
[16]
Id., Sec. 4(b).
[17]
Rule 34, Sec. 5.
[18]
Rollo, p. 52.
[19]
Id. at 54.
[20]
Id. at 119.
[21]
COMELEC Rules of Procedure, Rule 34, Sec. 5.
[22]
Rollo, p. 84.
[23]
Id. at 85.
EN BANC
[G.R. No. 129417. February 10, 1998]
COMMISSION ON ELECTIONS, petitioner, vs. HON. LORENZO R.
SILVA, JR., as Presiding Judge, RTC, Branches 2 and 3,
Balanga, Bataan, HON. BENJAMIN T. VIANZON, as Presiding
Judge, Branch 1, of the same Court, ERASTO TANCIONGCO,
and NORMA CASTILLO, respondents.
D E C I S I O N
MENDOZA, J .:
This case presents for determination the extent of control which those designated
by the Commission on Elections have in the prosecution of election offenses. The facts
are not in dispute. Pursuant to its power under Art. IX-C, 2(6) of the Constitution, the
COMELEC charged private respondents Erasto Tanciongco and Norma Castillo with
violations of 27 of R.A. No. 6646, together with Zenon Uy, in twelve separate
informations filed with the Regional Trial Court of Bataan. Tanciongco, who is provincial
prosecutor of Bataan, was vice chairman, while Castillo, who is division superintendent
of schools, was secretary of the Provincial Board of Canvassers of Bataan. Uy, who is
assistant regional director of elections, was chairman of the board. In each information,
the three were accused of having tampered, in conspiracy with one another, with the
certificates of canvass by increasing the votes received by then senatorial candidate
Juan Ponce Enrile in certain municipalities of Bataan in the May 8, 1995 elections.
The twelve cases were raffled to three branches of the court presided over by
respondent judges, Honorable Lorenzo R. Silva Jr. (Branches 2 and 3) and Honorable
Benjamin T. Vianzon (Branch 1).
On October 30, 1996, Tanciongco and Castillo filed a joint Omnibus Motion for
Examination of Evidence to Determine the Existence of Probable Cause; Suspension of
Issuance of Warrant of Arrest; and Dismissal of the Cases. Chief State Prosecutor
Jovencito Zuo, who had been designated by the Commission on Elections to
prosecute the cases, filed a comment joining in private respondents request. On the
other hand, the complainant, Aquilino Q. Pimentel, Jr. expressed no objection to the
dismissal of the cases against the two.
[1]

In orders dated March 31 and April 7, 1997 respectively, Judges Silva and Vianzon
summarily dismissed the cases against private respondents.
[2]

The COMELEC sought to appeal the dismissal of the cases to the Court of Appeals
by filing notices on April 18, 1997,
[3]
but the judges denied due course to its appeal. The
sole basis for the denials was the fact that the prosecutor, whom the COMELEC had
deputized to prosecute the cases, had earlier taken a contrary stand against the
COMELEC.
Thus, in his order, dated May 16, 1997, denying due course to the Notice of Appeal
of the COMELEC in Criminal Case Nos. 6439, 6441, 6443, 6445, 6646, 6647, and
6470, Judge Silva, Jr. stated:
A Notice of Appeal dated April 18, 1997, in the above-entitled cases was filed
on April 23, 1997 by Jose P. Balbuena, Director IV, Law Department,
Commission on Elections, from the Order of the Court dated March 31, 1997,
insofar as it dismissed the above-entitled cases as regards the accused
Erasto Tanciongco and Norma P. Castillo.
Chief State Prosecutor Jovencito Zuo who has been authorized by the
Commission on Elections to prosecute the cases, was required to comment
on the Notice of Appeal which does not bear his signature. In his comment
dated May 9, 1997, the Chief State Prosecutor states that he cannot give his
conformity to the Notice of Appeal filed by Jose P. Balbuena of the Comelec
as it would not be consistent with his position that he would abide by whatever
finding the court may come up with on the existence of probable cause as
against the accused Erasto Tanciongco and Norma Castillo. Consequently,
the notice of appeal filed by Jose P. Balbuena is unauthorized and without
legal effect.
WHEREFORE, the Notice of Appeal dated April 13, 1997, filed by Jose P.
Balbuena is denied due course.
[4]

SO ORDERED.
Judge Vianzon took a similar course in Criminal Case Nos. 6438, 6440, 6442, 6444
and 6471. In his order of May 23, 1997, he stated:
Considering that Chief State Prosecutor Jovencito R. Zuo has filed his
comment to the Notice of Appeal filed by Director Jose P. Balbuena of the
COMELEC, manifesting his non-conformity with the same because of his
previous commitment to abide by the ruling of this court on the Omnibus
Motion filed by accused Tanciongco and Castillo and the Motion to Quash
filed by accused Uy, and considering further that Chief State Prosecutor has
been duly deputized by the COMELEC en banc to handle the prosecution of
this case, the said Notice of Appeal is hereby DENIED.
SO ORDERED.
[5]

Hence this petition for certiorari and mandamus seeking the nullification of the
orders of the two judges, denying due course to the Notices of Appeal of the
COMELEC.
[6]

The issue is not just the right of the prosecution to appeal from the previous orders
of dismissal. It is settled that the approval of a notice of appeal, in cases where no
record on appeal is required by law, is a ministerial duty of the court to which the notice
of appeal is addressed, provided that such appeal is timely filed.
[7]
Of course in criminal
cases the prosecution cannot appeal if the accused would thereby be placed in double
jeopardy, but here the cases were dismissed by the judges before the accused were
arraigned and, therefore, jeopardy has not attached.
For while the right to appeal is statutory and is not constitutional, once it is
granted by statute, its denial would be a violation of the due process
clause of the Constitution.
[8]

The ultimate question concerns the authority of the COMELEC prosecutor. More
precisely, the question is, who has authority to decide whether or not to appeal from the
orders of dismissal the COMELEC or its designated prosecutor? The trial courts
held the view that the Chief State Prosecutors decision not to appeal the dismissal of
the cases, consistent with his earlier decision to leave the determination of the
existence of probable cause to the trial courts, was binding on them.
We think this view to be mistaken. The authority to decide whether or not to appeal
the dismissal belongs to the COMELEC. Art. IX-C, 2(6) of the Constitution expressly
vests in it the power and function to investigate and, where appropriate, prosecute
cases of violations of election laws, including acts or omissions constituting election
frauds, offenses, and malpractices. As this Court has held:
In effect the 1987 Constitution mandates the COMELEC not only to
investigate but also to prosecute cases of violation of election laws. This
means that the COMELEC is empowered to conduct preliminary
investigations in cases involving election offenses for the purpose of helping
the Judge determine probable cause and for filing an information in
court. This power is exclusive with COMELEC.
[9]

Indeed, even before the present Constitution, the Omnibus Election Code (B.P. Blg.
881) and, before it, the 1971 Election Code (R.A. No. 6388) and the 1978 Election Code
(P.D. No. 1296) already gave the COMELEC the exclusive power to conduct preliminary
investigation of all election offenses and to prosecute them in court.
[10]
The purpose is to
place in the hands of an independent prosecutor the investigation and prosecution of
election offenses.
[11]

Prosecutors designated by the COMELEC to prosecute the cases act as its
deputies. They derive their authority from it and not from their offices.
[12]
Consequently, it
was beyond the power of Chief State Prosecutor Zuo to oppose the appeal of the
COMELEC. For that matter, it was beyond his power, as COMELEC-designated
prosecutor, to leave to the trial courts the determination of whether there was probable
cause for the filing of the cases and, if it found none, whether the cases should be
dismissed. Those cases were filed by the COMELEC after appropriate preliminary
investigation. If the Chief State Prosecutor thought there was no probable cause for
proceeding against private respondents, he should have discussed the matter with the
COMELEC and awaited its instruction. If he disagreed with the COMELECs findings,
he should have sought permission to withdraw from the cases. But he could not leave
the determination of probable cause to the courts and agree in advance to the dismissal
of the cases should the courts find no probable cause for proceeding with the trial of the
accused. It was, therefore, grave abuse of discretion on the part of the respondent
judges to rely on the manifestation of Chief State Prosecutor Zuo as basis for denying
due course to the notices of appeal filed by the COMELEC.
Whether respondent judges also erred in dismissing the cases filed by the
COMELEC indeed, whether the trial courts at that stage were justified in inquiring
into the existence of probable cause because of exceptional reasons
[13]
must be
determined in the appeal after it is allowed. Here we only hold that whether the orders
of dismissal should be appealed is for the COMELEC to decide, not for Chief State
Prosecutor Zuo whom it has merely deputized to represent it in court.
Private respondents have nothing to say on this question. Their sole contention is
that the petition should be dismissed because , so it is argued, it should have been
brought in the name of the People of the Philippines and have been filed by the
Solicitor General.
This contention is without merit. This is not the first time the COMELEC has come to
this Court in its own name in regard to an action taken against it in cases filed by it in
the lower courts. InCommission on Elections v. Court of Appeals
[14]
the COMELECs
right to appeal from the decision of the Court of Appeals dismissing a criminal case filed
by it was sustained. This Court said:
The COMELEC has sufficient interest in filing the petition [for certiorari] to set
aside the decision of the Court of Appeals having sustained the demurrer to
evidence in the criminal case against private respondent for violation of the
Election Laws. This is so, for it is not only entrusted with the duty to enforce
the said law but also to prosecute all election offenses.
Under the Constitution, the COMELEC has the power to prosecute cases of
violations of election laws, including acts or omissions constituting election
frauds, offenses, and malpractices (Art. IX [C], Sec. 2[6]), and under the
Omnibus Election Code, (BP Blg. 881), it may avail of the assistance of other
prosecution arms of the government (Sec. 265). Thus, the COMELEC Rules
of Procedure gave the Chief State, Provincial and City Prosecutors a
continuing authority as deputies to prosecute offenses punishable under the
Election laws (COMELEC Rules of Procedure, Part 12, Rule 34, Sec. 2).
We have allowed government agencies to handle their cases before appellate
courts, to the exclusion of the Solicitor General.
[15]

In Commission on Elections v. Romillo
[16]
the right of the COMELEC to file a petition
for certiorari and mandamus to question the dismissal of criminal cases which it had
filed for violation of the Election Code was assumed. Although the petition was
eventually dismissed, the ruling was based not on the lack of authority of the COMELEC
to file the petition but on this Courts determination that the dismissal of the criminal
cases by the trial court was correct, considering that the evidence was insufficient.
Indeed, under the Rules of Court, the proper party who can file a petition for
certiorari, prohibition or mandamus is the person aggrieved by the action of a tribunal,
board or official because such action was taken without or in excess of jurisdiction or
with grave abuse of discretion or in willful neglect of duty.
[17]
In contrast to an appealed
case which is brought in the name of the parties in the court of origin and for this reason
retains its title below, the case, which is an original action, is brought by him.
[18]

In this case, denied by the courts below the authority to prosecute the criminal
actions because they recognized instead the Chief State Prosecutor as the
representative of the People, the COMELEC had to bring this suit to seek vindication of
its authority. Naturally, the petition has to be brought in its name as the aggrieved
party. In Assistant Provincial Fiscal of Bataan v. Dollete,
[19]
this Court granted a petition
for certiorari, which the fiscal had filed in his name, to annul an order of the trial court
denying his right to make an independent examination of the witnesses for the
prosecution for the purpose of satisfying himself of the sufficiency of the evidence.
Considering the authority of the COMELEC over the prosecution of election
offenses, its decision to bring this instant petition for certiorari and mandamus is
conclusive on the Solicitor General. It would simply be a matter of referring this case to
the Solicitor General so that, if he agrees, he may take over the conduct of this
case. Otherwise, the COMELEC could just continue handling this case as it has
actually done.
Hence, the omission of the COMELEC to refer this petition to the Office of the
Solicitor General for representation should be disregarded. To make the filing of this
case depend on his decision would be to place him in the same position in which
respondent judges placed Chief State Prosecutor Zuo. That would further negate the
constitutional function of the COMELEC.
WHEREFORE, the petition is GRANTED. The orders dated May 16, 1997 and May
23, 1997 of respondent judges are hereby SET ASIDE as null and void and respondent
judges are ORDERED to give due course to the appeals of petitioner from their
respective orders in Criminal Case Nos. 6438, 6440, 6442, 6444 and 6471 (filed in
Branch 1); Criminal Case Nos. 6439, 6441, 6443, 6445, 6446, and 6470 (filed in Branch
2); and Criminal Case No. 6447 (filed in Branch 3).
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr., Romero, Puno, Vitug, Kapunan, Francisco,
Panganiban, Martinez, Quisumbing, and Purisima, JJ., concur.



[1]
Rollo, pp. 79 and 81.
[2]
Id., pp. 80 and 85.
[3]
Id., pp. 86 and 88.
[4]
Id., p. 91.
[5]
Rollo, p. 92.
[6]
The COMELEC alleges in its petition:
1. This is a petition for certiorari and mandamus under Rule 65 of the Revised Rules of Court, to declare
as null and void the Orders issued by respondents Judge Lorenzo R. Silva, Jr., and Judge Benjamin T.
Vianzon, of the Regional Trial Court, Branches 1, 2 and 3, Balanga, Bataan, namely:
(a) Order dated May 16, 1997, denying due course to the Notice of Appeal dated April 18, 1997, filed by
petitioner from the Order dated March 31, 1997, in Crim. Cases Nos. 6439, 6441, 6446, 6443, 6445, 6470
and 6447, and
(b) Order dated May 23, 1997, denying due course to the Notice of Appeal dated April 18, 1997, filed by
petitioner from the Order dated March 31, 1997, in Crim. Cases Nos. 6438, 6440, 6442, 6444 and 6471,
and to compel said respondent Judges to approve the notice of appeal filed by petitioner in the
aforesaid cases.
[7]
See 1997 Rules of Civil Procedure, Rule 41; Santos v. Court of Appeals, 253 SCRA 632 (1996).
[8]
Estoya v. Abraham-Singson, 237 SCRA 1, 19 (1994).
[9]
People v. Inting, 187 SCRA 788, 799 (1990).
[10]
The Omnibus Election Code provides: SEC. 265. Prosecution - The Commission shall, through its
duly authorized legal officers, have the exclusive power to conduct preliminary investigation of all election
offenses punishable under this Code, and to prosecute the same. The Commission may avail of the
assistance of other prosecuting arms of the government: Provided, however, That in the event that the
Commission fails to act on any complaint within four months from his filing, the complainant may file the
complaint with the office of the fiscal or with the Ministry of Justice for proper investigation and
prosecution, if warranted.
[11]
Compare De Jesus v. People, 120 SCRA 760, 765-766 (1983): The grant to the COMELEC of the
power, among others, to enforce and administer all laws relative to the conduct of election and the
concomittant authority to investigate and prosecute election offenses is not without compelling
reason. The evident constitutional intendment in bestowing this power to the COMELEC is to insure the
free, orderly and honest conduct of elections, failure of which would result in the frustration of the true will
of the people and make a mere idle ceremony of the sacred right and duty of every qualified citizen to
vote. To divest the COMELEC of the authority to investigate and prosecute offenses committed by public
officials in relation to their office would thus seriously impair its effectiveness in achieving this clear
constitutional mandate. Reiterated in Corpus v. Tanodbayan, 149 SCRA 281, 283 (1987).
[12]
People v. Basilla, 179 SCRA 87 (1989); People v. Inting, 187 SCRA 788 (1990).
[13]
Unless there are exceptional circumstances justifying inquiry, such as those enumerated by this Court
in Brocka v. Enrile, 192 SCRA 183, 188-189 (1990), it is to be presumed that in filing cases in court, the
prosecutor found probable cause. If a court inquires at all into the existence of probable cause, it is only
for the purpose of determining whether a warrant of arrest should issue, but not whether the cases should
be dismissed. (See Roberts, Jr. v. Court of Appeals, 254 SCRA 307, 349 (1996) (Narvasa,
C.J., concurring); Webb v. De Leon, 247 SCRA 652 (1995)).
[14]
229 SCRA 501 (1994).
[15]
Id., at 505.
[16]
158 SCRA 716 (1988).
[17]
Rule 65, 1-3.
[18]
Rule 44, 1.
[19]
103 Phil. 914 (1958).









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Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 170447 June 23, 2009
BIENVENIDO DIO and RENATO COMPARATIVO, Petitioners,
vs.
PABLO OLIVAREZ,
1
Respondent.
D E C I S I O N
CHICO-NAZARIO, J .:
Petitioners Bienvenido Dio and Renato Comparativo assail the Decision
2
of the Court of Appeals dated 28 September 2005 in
CA-G.R. SP No. 89230, nullifying the Orders
3
dated 12 January 2005, 9 March 2005, and 31 March 2005 of Judge Fortunito L.
Madrona of Branch 274 of the Regional Trial Court (RTC) of Paraaque City, in Criminal Cases No. 04-1104 and No. 04-1105.
Petitioners instituted a complaint for vote buying against respondent Pablo Olivarez. Based on the finding of probable cause in
the Joint Resolution issued by Assistant City Prosecutor Antonietta Pablo-Medina, with the approval of the city prosecutor of
Paraaque, two Informations
4
were filed before the RTC on 29 September 2004 charging respondent Pablo Olivarez with
Violation of Section 261, paragraphs a, b and k of Article XXII of the Omnibus Election Code, which read:
Criminal Case No. 04-1104
That on or about the 10th day of May 2004, in the City of Paraaque, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, Remedios Malibiran and Pablo Olivarez, conspiring and confederating together and both of
them mutually helping and aiding one another, did then and there willfully, unlawfully and feloniously, engage in vote buying
activities on election day of May 10, 2004, by distributing or giving Uniwide gift certificates, a thing of value, as consideration to
induce or influence the voters to vote for candidate Pablo Olivarez, a candidate for the City Mayor of Paraaque, in violation of
Omnibus Election Code.
Criminal Case No. 04-1105
That on or about the 10th day of May, 2004, in the City of Paraaque, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused, Carmelo Jaro and Pablo Olivarez, conspiring and confederating together and both of them
mutually helping and aiding one another, did then and there willfully, unlawfully and feloniously, engage in vote buying activities
on election day of May 10, 2004, by distributing or giving Uniwide gift certificates, a thing of value, as consideration to induce or
influence the voters to vote for candidate Pablo Olivarez, a candidate for the City Mayor of Paraaque, in violation of the
Omnibus Election Code.
The arraignment of the respondent was initially set on 18 October 2004.
5

On 7 October 2004, respondent filed before the Law Department of the Commission on Elections (COMELEC) an "[a]ppeal of
[the] Joint Resolution of the City Prosecutor of Paraaque City with Motion to Revoke Continuing Authority" pursuant to Section
10, Rule 34 of the 1993 COMELEC Rules of Procedure. Respondent argued that the pendency of the appeal of the Joint
Resolution before the COMELEC should prevent the filing of the Informations before the RTC as there could be no final finding of
probable cause until the COMELEC had resolved the appeal. Moreover, he argued that the charges made against him were
groundless.
6

In a letter
7
dated 11 October 2004, the Law Department of the COMELEC directed the city prosecutor to transmit or elevate the
entire records of the case and to suspend further implementation of the Joint Resolution dated 20 September 2004 until final
resolution of the said appeal before the COMELEC en banc.
On 11 October 2004, respondent filed a Motion to Quash the two criminal informations on the ground that more than one offense
was charged therein, in violation of Section 3(f), Rule 117 of the Rules of Court, in relation to Section 13, Rule 110 of the Rules of
Court.
8
This caused the resetting of the scheduled arraignment on 18 October 2004 to 13 December 2004.
9

Before Judge Madrona could act on the motion to quash, Assistant Prosecutor Pablo-Medina, with the approval of the city
prosecutor, filed on 28 October 2004 its "Opposition to the Motion to Quash and Motion to Admit Amended Informations.
10
" The
Amended Informations sought to be admitted charged respondent with violation of only paragraph a, in relation to paragraph b, of
Section 261, Article XXII of the Omnibus Election Code.
11

On 1 December 2004, Judge Madrona issued an Order resetting the hearing scheduled on 13 December 2004 to 1 February
2005 on account of the pending Motion to Quash of the respondent and the Amended Informations of the public prosecutor.
12

On 14 December 2004, respondent filed an "Opposition to the Admission of the Amended Informations," arguing that no
resolution was issued to explain the changes therein, particularly the deletion of paragraph k, Section 261, Article XXII of the
Omnibus Election Code . Moreover, he averred that the city prosecutor was no longer empowered to amend the informations,
since the COMELEC had already directed it to transmit the entire records of the case and suspend the hearing of the cases
before the RTC until the resolution of the appeal before the COMELEC en banc.
13

On 12 January 2005, Judge Madrona issued an order denying respondents Motion to Quash dated 11 October 2004, and
admitted the Amended Informations dated 25 October 2004.
14
Respondent filed an Urgent Motion for Reconsideration dated 20
January 2005 thereon.
15

On 1 February 2005, Judge Madrona reset the arraignment to 9 March 2005, with a warning that the arraignment would proceed
without any more delay, unless the Supreme Court would issue an injunctive writ.
16

On 9 March 2005, respondent failed to appear before the RTC. Thereupon, Judge Madrona, in open court, denied the Motion for
Reconsideration of the Order denying the Motion to Quash and admitting the Amended Informations, and ordered the arrest of
respondent and the confiscation of the cash bond.
17

On 11 March 2005, respondent filed an "Urgent Motion for Reconsideration and/or to Lift the Order of Arrest of Accused Dr.
Pablo Olivarez,"
18
which was denied in an Order dated 31 March 2005. The Order directed that a bench warrant be issued for the
arrest of respondent to ensure his presence at his arraignment.
19

On 5 April 2005, the Law Department of the COMELEC filed before the RTC a Manifestation and Motion
20
wherein it alleged that
pursuant to the COMELECs powers to investigate and prosecute election offense cases, it had the power to revoke the
delegation of its authority to the city prosecutor. Pursuant to these powers, the COMELEC promulgated Resolution No.
7457
21
dated 4 April 2005. The dispositive portion of Resolution No. 7457 states:
Considering the foregoing, the Commission RESOLVED, as it hereby RESOLVES, to APPROVE and ADOPT the
recommendation of the Law Department as follows:
1. To revoke the deputation of the Office of the City Prosecutor of Paraaque to investigate and prosecute
election offense cases insofar as I.S. Nos. 04-2608 and 04-2774, entitled "Renato Comparativo vs. Remedios
Malabiran and Pablo Olivarez" and "Bienvenido et. al. vs. Sally Rose Saraos, et. al.," respectively, are concerned;
and
2. To direct the Law Department to handle the prosecution of these cases and file the appropriate Motion and
Manifestation before the Regional Trial Court of Paraaque, Branch 274, to hold in abeyance further proceedings
on Criminal Case Nos. 1104 and 1105 until the Commission has acted on the appeal of respondents.
Let the Law Department implement this Resolution.
Thus, the Law Department of the COMELEC moved (1) that the RTC hold in abeyance further proceedings in Criminal Cases
No. 04-1104 and No. 04-1105 until the COMELEC has acted on respondents appeal; and (2) to revoke the authority of the city
prosecutor of Paraaque to prosecute the case, designating therein the lawyers from the Law Department of the COMELEC to
prosecute Criminal Cases No. 04-1104 and No. 04-1105.
On 8 April 2005, respondent filed a Special Civil Action for Certiorari before the Court of Appeals docketed as CA-G.R. SP No.
89230, assailing the Orders, dated 12 January 2005, 9 March 2005 and 31 March 2005 of the RTC. The appellate court granted
the appeal in a Decision dated 28 September 2005 declaring that the COMELEC had the authority to conduct the preliminary
investigation of election offenses and to prosecute the same. As such, the COMELEC may delegate such authority to the Chief
State Prosecutor, provincial prosecutors, and city prosecutors. The COMELEC, however, has the corresponding power, too, to
revoke such authority to delegate. Thus, the categorical order of the COMELEC to suspend the prosecution of the case before
the RTC effectively deprived the city prosecutor of the authority to amend the two informations. The appellate court also
pronounced that Judge Madrona erred in admitting the amended informations, since they were made in excess of the delegated
authority of the public prosecutor, and his orders to arrest the respondent and to confiscate the latters cash bond were devoid of
legal basis.
22
The fallo of the Decision reads:
UPON THE VIEW WE TAKE OF THIS CASE, THUS, the petition at bench must be, as it hereby is, GRANTED. The impugned
Orders of the public respondent Judge Fortunito L. Madrona of Branch 274, Regional Trial Court of Paraaque City dated 12
January 2005, 9 March 2005, and 31 March 2005 are hereby VACATED and NULLIFIED. The Temporary Restraining Order
issued in the instant petition is made PERMANENT. Without costs in this instance.
23

Hence, the present petition under Rule 65 where the petitioners enumerate the following assignments of error, to wit:
I
THE HONORABLE COURT OF APPEALS ERRED IN NULLIFYING THE ORDER OF THE COURT A QUO AS IT BASICALLY
ERRED IN ITS APPRECIATION THAT THE TWO AMENDED INFORMATIONS WERE FILED AT A TIME WHEN THE PUBLIC
PROSECUTOR HAD NO MORE AUTHORITY TO DO SO;
II
THE HONORABLE COURT OF APPEALS ERRED IN GIVING CREDENCE TO ACCUSEDS ALLEGATION THAT COMELEC
RESOLUTION WAS RECEIVED BY THE PROSECUTOR "DAYS BEFORE THE (sic) FILED THE AMENDED INFORMATIONS;"
III
THE HONORABLE COURT OF APPEALS ERRED IN DECLARING AS PERMANENT THE TEMPORARY RESTRAINING
ORDER EARLIER ISSUED.
24

This Court finds merit in the present petition.
At the outset, it should be noted that the appropriate remedy for petitioners is to file a petition for review on certiorari under Rule
45 of the Rules of Court, and not a petition for certiorari under Rule 65 as petitioners aver in their Manifestation and Motion dated
9 January 2006. However, in accordance with the liberal spirit pervading the Rules of Court and in the interest of justice, this
Court has decided to treat the present petition for certiorari as having been filed under Rule 45, especially considering that it was
filed within the reglementary period for the same. Petitioners received the Court of Appeals Resolution on 24 November 2005
and filed an Urgent Motion for Extension of Time to Appeal on 6 December 2005, within the 15-day reglementary period for the
filing of a petition for review on certiorari. This Court granted the motion of petitioners for an extension of 30 days from 9
December 2005, the expiration of the reglementary period, and the petitioners were able to file their petition on 6 January 2006
within the period for extension granted by this Court. It cannot therefore be claimed that this petition is being used as a substitute
for appeal after the remedy has been lost through the fault of the petitioner.
25

The main issues in this case are (1) whether or not the Office of the City Prosecutor of Paraaque had acted in excess of its
jurisdiction when it filed the Amended Informations, and whether Judge Madrona had acted in excess of his jurisdiction when he
admitted the said Amended Informations and denied the respondents motion to quash; and (2) whether or not Judge Madrona
had acted in accordance with law when he issued the warrant for the arrest of respondent and ordered the confiscation of his
cash bond due to the latters failure to appear for arraignment.
There is no dispute that the COMELEC is empowered to investigate and prosecute election offenses, and that the Chief State
Prosecutor, the provincial prosecutors and city prosecutors, acting on its behalf, must proceed within the lawful scope of their
delegated authority. Section 265 of the Omnibus Election Code provides:
Section 265. Prosecution.The Commission shall, through its duly authorized legal officers, have the exclusive power to conduct
preliminary investigation of all election offenses punishable under this Code, and to prosecute the same. The Commission may
avail of the assistance of other prosecuting arms of the government: Provided, however, That in the event that the Commission
fails to act on any complaint within four months from his filing, the complainant may file the complaint with the office of the fiscal
or with the Ministry of Justice for proper investigation and prosecution, if warranted.
Section 2, Rule 34 of the COMELEC Rules of Procedure provides for the continuing delegation of authority to other prosecuting
arms of the government, an authority that the COMELEC may revoke or withdraw in the proper exercise of its judgment.
Section 2. Continuing Delegation of Authority to Other Prosecution Arms of the Government.The Chief State Prosecutor, all
Provincial and City Fiscals, and/or their respective assistants are herby given continuing authority, as deputies of the
Commission, to conduct preliminary investigation of complaints involving election offenses under the election laws which may be
filed directly with them, or which may be indorsed to them by the Commission or its duly authorized representative and to
prosecute the same. Such authority may be revoked or withdrawn any time by the Commission whenever in its judgment such
revocation or withdrawal is necessary to protect the integrity of the Commission, promote the common good, or when it believes
that successful prosecution of the case can be done by the Commission.
Furthermore, Section 10 of the COMELEC Rules of Procedure provides that the COMELEC is empowered to revise, modify and
reverse the resolution of the Chief State Prosecutor and/or provincial/city prosecutors.
Section 10. Appeals from the Action of the State Prosecutor, Provincial or City Fiscal.Appeals from the resolution of the State
Prosecutor or Provincial or City Fiscal on the recommendation or resolution of investigating officers may be made only to the
Commission within ten (10) days from receipt of the resolution of said officials, provided, however that this shall not divest the
Commission of its power to motu proprio review, revise, modify or reverse the resolution of the chief state prosecutor and/or
provincial/city prosecutors. The decision of the Commission on said appeals shall be immediately executory and final.
Be that as it may, this Court finds that the public prosecutors, in filing the Amended Informations, did not exceed the authority
delegated by the COMELEC. Resolution No. 7457, which effectively revoked the deputation of the Office of the City Prosecutor
of Paraaque, was issued on 4 April 2005, after the Amended Informations were filed on 28 October 2004. The letter dated 11
October 2004, written by Director Alioden D. Dalaig of the COMELEC Law Department, did not revoke the continuing authority
granted to the City Prosecutor of Paraaque. It simply reads:
In this connection, you are hereby directed to transmit the entire records of the case to the Law Department, Commission on
Elections, Intramuros, Manila by the fastest means available. You are further directed to suspend further implementation of the
questioned resolution until final resolution of said appeal by the Comelec En Banc.
26

The filing of the Amended Informations was not made in defiance of these instructions by the COMELEC; rather it was an act
necessitated by the developments of the case. Respondent filed a Motion to Quash on 11 October 2004 on the ground that more
than one offense was charged therein. Section 14, Rule 110 of the Rules on Criminal Procedure, provides:
Section 14. Amendment or substitution. A complaint or information may be amended, in form or in substance, without leave of
court, at any time before the accused enters his plea. After the plea and during the trial, a formal amendment may only be made
with leave of court and when it can be done without causing prejudice to the rights of the accused. x x x. (Emphasis provided.)
Since the Rules of Court provided for a remedy that would avert the dismissal of the complaints on the ground that more than
one offense was charged, the public prosecutor filed the Amended Informations. The instructions of the COMELEC, in the letter
dated 11 October 2004, were clearly intended to allow sufficient time to reconsider the merit of the Joint Resolution, not to have
the public prosecutor abandon the prosecution of the case and negligently allow its dismissal by not filing the Amended
Informations, thus, leaving the COMELEC in a quandary should it later dismiss the appeal before it. By filing the Amended
Informations, the public prosecutor had avoided such an undesirable situation, which would have forced the COMELEC to re-file
the cases, waste government resources, and delay the administration of justice. Thus, the precautionary measure taken by the
public prosecutor was clearly not intended to disobey the COMELEC, or to flout its authority or diminish its powers to review the
appealed Joint Resolution. As such, the filing of the Amended Informations cannot in any way be considered improper.
Consequently, Judge Madrona acted in accordance with law when he admitted these Informations and dismissed the
respondents Motion to Quash, as the ground stated thereinthe informations charged more than one offensecould no longer
be sustained.
Moreover, no abuse of discretion can be attributed to Judge Madrona when he issued the Orders, dated 9 March 2005 and 31
March 2005, for the arrest of the respondent due to his failure to be present for his arraignment and for the confiscation of his
cash bond. These Orders are consistent with criminal procedure.
The filing of an information in the trial court initiates a criminal action. The trial court thereby acquires jurisdiction over the case.
After the filing of the complaint or the information, a warrant for the arrest of the accused is issued by the trial court. When the
accused voluntarily submits himself to the court or is duly arrested, the court then acquires jurisdiction over the person of the
accused.
27
In this case, the trial court acquired jurisdiction over the persons of the accused Carmelo Jaro, Remedios Malibaran,
and the respondent, who posted bail bonds after the trial court issued a Warrant of Arrest on 4 October 2004. While it is true that
the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court, once the case has
been brought to court, whatever disposition the fiscal may feel is proper in the case should be addressed to the consideration of
the trial court.
28

Thereafter, arraignment shall follow as a matter of course. Section 11, Rule 116 of the Rules of Criminal Procedure, enumerates
the instances that can suspend the arraignment of the accused:
Section 11. Suspension of arraignment.Upon motion of the proper party, the arraignment shall be suspended in the following
cases:
x x x x
(c) A petition for review of the resolution of the prosecutor is pending at either the Department of Justice, or the Office of the
President; Provided, That the period of suspension shall not exceed sixty (60) days counted from the filing of the petition with the
reviewing office.
From the foregoing, it is clear that the arraignment of the accused is not indefinitely suspended by the pendency of an appeal
before the Department of Justice or, in this case, Law Department of the COMELEC; rather, the reviewing authority is allowed 60
days within which to decide the appeal. In this case, respondent filed his Appeal of the Joint Resolution at the Office of the City
Prosecutor of Paraaque on 7 October 2004. Thus, the arraignment that was scheduled on 11 October 2004 was re-scheduled
to 13 December 2004, approximately 60 days thereafter. On 1 December 2004, the arraignment scheduled on 13 December
2004 was reset to 1 February 2005 because of the pending Motion to Quash. When the respondent failed to appear on the
scheduled arraignment, Judge Madrona nonetheless reset the arraignment to 9 March 2005, with the warning that the court
would impose the appropriate sanctions, should respondent still fail to appear therein. It was only on 9 March 2005, or five
months after the respondent filed his appeal before the Law Department of the COMELEC that Judge Madrona held the
arraignment and issued the Bench Warrant of Arrest against respondent.
29
Five months, which far exceeded the sixty days
provided by the rules, was ample time for the respondent to obtain from COMELEC a reversal of the Joint Resolution.
In pronouncing that Judge Madrona acted in grave abuse of discretion when he failed to defer the arraignment of the respondent,
the Court of Appeals cited Solar Team Entertainment, Inc. v. Judge How,
30
wherein this Court cautioned judges to refrain from
precipitately arraigning the accused to avoid any miscarriage of justice. However, this case was decided before the Rules of
Criminal Procedure were revised on 1 December 2000; and the rule setting the 60-day period for the suspension of the
arraignment of the accused pending an appeal or a petition for review before a reviewing authority was not yet applicable.
Nevertheless, it should be noted that even in Solar, this Court did not sanction an indefinite suspension of the proceedings in the
trial court. Its reliance on the reviewing authority, the Justice Secretary, to decide the appeal at the soonest possible time was
anchored on the rule provided under Department Memorandum Order No. 12, dated 3 July 2000, which mandates that the period
for the disposition of appeals or petitions for review shall be 75 days.
31

WHEREFORE, the instant appeal is GRANTED. The Decision of the Court of Appeals dated 28 September 2005 in CA-G.R. SP
No. 89230 is REVERSED. This Court orders the continuation of the proceedings in Criminal Cases No. 04-1104 and No. 04-1105
before the RTC, the prosecution of which shall be under the direction of the Law Department of the COMELEC. No costs.
SO ORDERED.
MINITA V. CHICO-NAZARIO
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
PRESBITERO J. VELASCO, JR.
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersons attestation, it is hereby certified that the
conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the
Courts Division.
REYNATO S. PUNO
Chief Justice

Footnotes
1
Under Section 2, Rule 42 of the Rules of Court, public respondents need not be included in the title as either
petitioners or respondents.
2
Penned by Associate Justice Renato C. Dacudao with Associate Justices Lucas P. Bersamin (now an Associate
Justice of the Supreme Court) and Celia C. Librea-Leagogo, concurring; rollo, pp. 10-29.
3
Penned by Presiding Judge Fortunito L. Madrona; CA rollo, pp. 20-26.
4
Id. at 33-34.
5
Id. at 151.
6
Id. at 35-48.
7
Id. at 50.
8
Section 13, Rule 110 of the Rules of Court reads:
Section 13. Duplicity of the offense.A complaint or information must charge only one offense, except
when the law prescribes a single punishment for various offenses.
9
CA rollo, p. 151.
10
Id at 213.
11
Id. at 56-57.
12
Id. at 151.
13
Id. at 58-64.
14
Id. at 20-21.
15
Id. at 65-69.
16
CA rollo, pp. 74-75.
17
Id. at 22-23.
18
Id. at 77-78.
19
Id. at 25.
20
Id. at 112-121.
21
Id. at 125-133.
22
Rollo, pp. 10-29.
23
Id. at 28.
24
Id. at 40, 42 and 44.
25
Delsan Transport Lines, Inc. v. Court of Appeals, 335 Phil. 1066, 1075 (1997).
26
CA rollo, p. 50.
27
Crespo v. Mogul, G.R. No. L-53373, 30 June 1987, 151 SCRA 462, 469-470.
28
Advincula v. Court of Appeals, 397 Phil. 641, 652 (2000); Crystal v. Sandiganbayan, G.R. Nos. 83635-53, 28
February 1989, 170 SCRA 822, 825; Republic v. Sunga, G.R. No. L-38634, 20 June 1988, 162 SCRA 191, 202-
203; and Crespo v. Mogul, id.
29
CA rollo, pp. 151-152.
30
393 Phil. 172, 180 (2000).
31
Id. at 185-186.

The Lawphil Project - Arellano Law Foundation



Republic of the Philippines
Supreme Court
Manila

EN BANC

ALVIN B. GARCIA,
Petitioner,







- versus -








G.R. No. 170256

Present:

PUNO, C.J.,
CARPIO,
CORONA,
*

CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA,
**
JJ.


COMMISSION ON ELECTIONS and
TOMAS R. OSMEA,
Respondents.

Promulgated:

January 25, 2010
x-----------------------------------------------------------------------------------------x

D E C I S I O N


PERALTA, J .:

This is a petition for certiorari
[1]
alleging that the Commission on Elections
(COMELEC) en banc committed grave abuse of discretion amounting to lack or
excess of jurisdiction in issuing the Resolutions dated April 28, 2005 and October
5, 2005 in Election Offense Case No. 04-120. In the Resolution dated April 28,
2005, the COMELEC en banc found probable cause that petitioner Alvin B. Garcia
committed an election offense and directed the Law Department of COMELEC to
file the appropriate Information against him for violation of Section 6 of Republic
Act (R.A.) No. 9006, otherwise known as the Fair Elections Act,
[2]
and Section
13 of COMELEC Resolution No. 6520, the Implementing Rules and Regulations
(IRR) of R.A. No. 9006. The Resolution dated October 5, 2005 denied petitioners
motion for reconsideration.

The facts are as follows:

On May 6, 2004, private respondent Tomas R. Osmea, then mayoral
candidate in the 2004 national and local elections in Cebu City, filed an election
offense case against his rival, petitioner Alvin B. Garcia, for the publication of
political advertisements that allegedly violated the thrice-a-week publication
requirement and failed to indicate the name and address of the party or candidate
for whose benefit the advertisements were published. He averred that the
publication of the political advertisements was in violation of Sections 4 and 6 of
R.A. No. 9006
[3]
and Sections 11 and 13 of COMELEC Resolution No. 6520.
[4]

In his Complaint
[5]
dated May 6, 2004, private respondent alleged, thus:

For the period April 26, 2004 up to May 2, 2004, or for a period of one
week, respondent through his family-owned publishing company put up political
advertisements, which we can group into four basic categories, namely,
"MAYOR SA KATAWHAN," "IT'S A NO-CONTEST," "NO TO TOM TAX
OSMENA," and "Mayor Alvin Garcia" advertisements.
[6]



Private respondent averred that "MAYOR SA KATAWHAN was
published four times, that is, on April 27 and 29, 2004 and May 1 and 2, 2004, all
one-half page in size, in the Sun Star tabloid. Moreover, the "ITS A NO-
CONTEST" political advertisement was printed daily, or seven times in Sun
Star, all one-half page in size, from April 26 to May 2, 2004. The "NO TO TOM
TAX OSMEA advertisement appeared thrice, or on April 28 and 29, 2004
and May 1, 2004, also one-half page in size, in the same tabloid. The "Mayor Alvin
Garcia advertisement was published once. Private respondent alleged that all the
political advertisements did not indicate the true and correct name and address of
the party or candidate for whose benefit the advertisements were published.

In his Answer,
[7]
petitioner denied private respondents allegations. He
contended that the political advertisements had been made not for a single
candidate, but for the entire slate of his party, Kusug-KNP Party, consisting of 20
local candidates, plus presidential and vice-presidential candidates Fernando Poe,
Jr. and Loren Legarda, respectively. Petitioner asserted that "22 candidates x 3 a
week results to 66 times a week publication for all the candidates" of the Kusug-
KNP Party. Thus, the publication of the political advertisements, may it be seven
or 15 times, was way below the allowable limit of 66 times for the 22 political
candidates of the Kusug-KNP Party. Consequently, the political advertisements in
question had not exceeded the legal limit provided by R.A. No. 9006, as
implemented by COMELEC Resolution No. 6520.

Further, petitioner stated that the political advertisements in question
reflected that they were really campaigns for the benefit of the candidates of the
Kusug-KNP Party, as in fact, they contained the pictures and names of the partys
political candidates. Hence, he contended that the political advertisements
substantially complied with the requirement provided by the Fair Elections Act that
the advertisement shall contain the true and correct name and address of the party or
candidate for whose benefit the election propaganda was printed.

In a Resolution dated November 8, 2004, the Office of the Regional
Investigation and Prosecution Committee (Office of the Regional Director, Region
VII, Cebu City) recommended the dismissal of the Complaint based on this
finding:

The respondent did not violate the thrice-a-week rule laid down by Sec. 6
of RA 9006 as implemented by Sec. 13 of Comelec Resolution 6520. As correctly
pointed out by respondent, the said political advertisement is not for the benefit or
published for the respondent alone, but for the whole Kusug-KNP Party as can be
gleaned from said advertisements, thus, the whole party with twenty local
candidates and the Kusog Party and its alliance with Koalisyong Nagkakaisang
Pilipino (KNP) is entitled to as much as 66 times a week for each
publication. The very purpose of the law is to provide candidates wide latitude in
informing the electorate regarding their platforms and qualifications during the
campaign period.
The same can be said on the alleged violation of Sec. 4 of RA 9006 as
implemented by Sec. 11 of Comelec Resolution 6520. Although respondent's
political advertisement did not literally contain the requirement of indicating the
true and correct name and address for whose benefit the election propaganda was
published, this requirement is substantially met by the respondent because it can
be glean[ed] [from the] said ads for whose benefit the same was made as shown
by the pictures and names of the candidates and who paid for it. A literal
implementation of the law should not be required if the same can be met
substantially and the purpose of the law is achieve[d] and that is equal access to
media is given to candidates to make known their qualifications and stand on
public issues.
[8]



In a Resolution dated April 28, 2005, the COMELEC en banc disagreed with
the recommendation of the investigating officer, thus:

We disagree. RA 9006 provides to wit:

Sec. 6. Equal Access to Media Time and Space. - All
registered parties and bona fide candidates shall have equal access
to media time and space. The following guidelines may be
amplified on by the COMELEC:

6.1 Print advertisements shall not exceed one-fourth
(1/4) page in broadsheet and one-half (1/2) page in tabloids thrice a
week per newspaper, magazine or other publications, during the
campaign period.

This is amplified by Comelec Resolution 6520, thus:

SECTION 13. Requirements and/or Limitations on the Use
of Election Propaganda through Mass Media. - All registered
political parties, party-list groups, organizations, and/or coalitions
thereof, and bona fide candidates shall have equal access to media
time and space for their election propaganda during the campaign
period subject to the following requirements and/or limitations:

x x x x

2. Printed or Published Election Propaganda

The maximum size of print advertisements for each
candidate, whether for a national or local elective position, or
registered political party, party-list group, organization, and/or
coalition thereof, shall be, as follows:


a. One fourth (1/4) page - in broadsheets; and
b. One half (1/2) page - in tabloids

Said print advertisements, whether procured by purchase,
or given free of charge, shall be published thrice a week per
newspaper, magazine or other publications during the campaign
period. (emphasis supplied)

Insofar as the political propaganda, its a no-contest, is concerned,
respondent does not deny that the same was published in Sun Star for seven (7)
consecutive times from 26 April 2004 to 02 May 2004 or for a period of one
week, straight. An inspection of the said advertisement reveals that it refers only
to respondent; there is no mention of his political party or party-mates, making it
clear that it was his advertisement alone. The computation thus made by
respondent and so adopted by the investigating officer, assuming this to be true
and valid, would not and cannot apply in this instance. The provisions of law
violated need no further interpretation as they are very plain and unambiguous.

That other candidates are claimed to have committed the same violation
does not excuse herein respondent nor does it remove from this Commission the
authority and power to prosecute the same. In fact, it compels Us to be even more
vigorous and relentless in pursuing Our duties. In this regard, there shall be no
sacred cows.
[9]



The dispositive portion of the Resolution reads:


CONSIDERING that there exists PROBABLE CAUSE, the Law
Department is hereby DIRECTED to file the appropriate information against
respondent Alvin B. Garcia for violation of Section 6 of RA 9006, and Section 13
of COMELEC Resolution No. 6520, in relation to Section 264 of the Omnibus
Election Code, as amended.
[10]


Petitioner filed a Motion for Reconsideration
[11]
and, thereafter, a
Supplemental Motion for Reconsideration
[12]
of the Resolution, contending that
there was lack of probable cause to hold him liable for an election offense in
violation of R.A. No. 9006 and its IRR, because he was neither the author of the
questioned advertisement nor the one who caused its publication. He stated that
Orlando P. Carvajal, the General Manager of Sun Star Publishing, Inc., attested in
an Affidavit dated May 23, 2005 that an organization named Friends of Alvin
Garcia caused the publication of the said advertisement.

Petitioner contended that since he did not cause the publication of the
advertisement in question, and absent any competent proof against him, there was
no probable cause warranting the filing of an Information against him for violation
of R.A. No. 9006, as implemented by COMELEC Resolution No. 6520.

In a Resolution
[13]
dated October 5, 2005, the COMELEC en banc denied the
motion for reconsideration for lack of merit.

On October 13, 2006, the COMELEC Law Department directed Atty.
Manuel T. Advincula, Acting Regional Election Director of Region VII, to file the
Information entitledPeople of the Philippines v. Alvin B. Garcia with the proper
Regional Trial Court (RTC) of Cebu.

Petitioner filed an Urgent Motion to Withhold Issuance of Warrant of Arrest
and for Judicial Determination of Probable Cause with the RTC of Cebu City,
Branch 12, on the following grounds:

1. The filing of the information by the COMELEC is premature
considering that there is a pending petition for certiorari before the Supreme
Court questioning the resolution of the COMELEC over the subject matter; and

2. There is lack of probable cause to subject the accused to a
criminal prosecution.
[14]



On December 21, 2006, the RTC OF Cebu City, Branch 12, issued an Order
the dispositive portion of which reads:

IN VIEW OF ALL THE FOREGOING, the determination of probable cause is hereby
deferred until after resolution of the petition for certiorari pending with the Supreme
Court. Accordingly, the issuance of a warrant of arrest is held in abeyance.
[15]


Meantime, on November 18, 2005, petitioner filed this petition, raising the
following issues:

I
THE RESPONDENT COMELEC COMMITTED ERROR
AMOUNTING TO GRAVE ABUSE OF DISCRETION IN RULING THAT
THERE EXISTS A PROBABLE CAUSE TO SUBJECT THE PETITIONER TO
A CRIMINAL PROSECUTION AS THE POLITICAL ADVERTISEMENT IN
QUESTION DID NOT EXCEED THE ALLOWED FREQUENCY OF
PUBLICATION.


II
THE RESPONDENT COMELEC COMMITTED ERROR
AMOUNTING TO GRAVE ABUSE OF DISCRETION IN RULING THAT
THERE EXISTS A PROBABLE CAUSE TO SUBJECT THE PETITIONER TO
A CRIMINAL PROSECUTION DESPITE THE PRESENCE OF EVIDENCE
THAT THE PETITIONER DID NOT CAUSE THE PUBLICATION OF THE
POLITICAL ADVERTISEMENT IN QUESTION.
[16]



Before this Court, petitioner reiterates that the ITS NO CONTEST
political advertisement was attributable not only to him but to the complete line-up
of candidates of Kusug-KNP Party for local elective positions, numbering 20
candidates. The partys alliance with the KNP, a national party that carried the late
Fernando Poe, Jr. for President and former Senator Loren Legarda for Vice-
president, brought the total number of candidates advertised in the political
advertisement to 22, excluding the senatorial line-up.

Petitioner contends that 22 candidates multiplied by three publications per
week equals an allowable publication of 66 times a week for all candidates of the
Kusug-KNP Party. Petitioner asserts that the Special Regional Investigation and
Prosecution Committee, therefore, did not err in recommending the dismissal of
the Complaint, as the pertinent advertisement did not violate the thrice-a-week rule
laid down by Section 6 of R.A. No. 9006, as implemented by Section 13 of
COMELEC Resolution No. 6520.

Further, petitioner argues that there is no probable cause that he violated
Section 11 of COMELEC Resolution No. 6520, because he did not author or cause
the publication of the advertisement in question. The affidavit executed by the
General Manager of Sun Star Publishing, Inc. stated that the organization named
Friends of Alvin Garcia paid for the ITS A NO-CONTEST political
advertisement for the period April 26, 2004 to May 2, 2004.

Petitioner admits that he and his family own stocks in Sun Star Publishing,
Inc. He claims, however, that Sun Star is independently operated by its News,
Editorial and Marketing Departments, and Sun Star Daily prides itself with catering
to no other interest but to that of the general public, and is not beholden to the
corporations stockholders and their relatives.

Petitioner asserts that probable cause presupposes the introduction of
competent proof that the party against whom it is sought has performed particular
acts or committed specific omissions, violating a given provision of our criminal
laws.

According to petitioner, private respondent did not offer any competent
proof that he (petitioner) was the author of the said political advertisement or
caused the publication of the same, but offered merely the publication of the
advertisement in question.

Petitioner submits that having established that he was neither the author of
the political advertisement in question nor the one who caused its publication, there
is no probable cause warranting the filing of the Information against him for
violation of R.A. No. 2006, as implemented by COMELEC Resolution No.
6520. Thus, the COMELEC en banccommitted grave abuse of discretion
amounting to lack of jurisdiction in issuing the Resolutions dated April 28,
2005 and October 5, 2005.

The Court is not persuaded.

Paragraph 6, Section 2, Article IX of the Constitution empowers the
COMELEC to investigate and, where appropriate, prosecute cases for violation of
election laws, including acts or omissions constituting election frauds, offenses and
malpractices. This prosecutorial power of the COMELEC is reflected in Section
265 of Batas Pambansa Bilang 881,
[17]
otherwise known as the Omnibus Election
Code.

It is well settled that the finding of probable cause in the prosecution of
election offenses rests in the COMELEC's sound discretion.
[18]


Baytan v. Commission on Elections
[19]
defines probable cause, thus:

x x x By definition, probable cause is

x x x a reasonable ground of presumption that a matter is, or may be, well
founded x x x such a state of facts in the mind of the prosecutor as would lead a person
of ordinary caution and prudence to believe or entertain an honest or strong suspicion
that a thing is so. The term does not mean actual or positive cause nor does it import
absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding
of probable cause does not require an inquiry into whether there is sufficient evidence
to procure a conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged. Precisely, there is a trial for the
reception of evidence of the prosecution in support of the charge.


Generally, the Court will not interfere with the finding of probable cause by
the COMELEC absent a clear showing of grave abuse of discretion.
[20]
This
principle emanates from the COMELEC's exclusive power to conduct preliminary
investigation of all election offenses punishable under the election laws and to
prosecute the same, except as may otherwise be provided by law.
[21]


Section 4 of R.A. No. 9006 provides for the requirements for published or
printed election propaganda, thus:

Sec. 4. Requirements for Published or Printed and Broadcast Election
Propaganda 4.1. Any newspaper x x x or any published or printed political
matter and any broadcast of election propaganda by television or radio for or
against a candidate or group of candidates to any public office shall bear and be
identified by the reasonably legible or audible words political advertisement paid
for, followed by the true and correct name and address of the candidate or party
for whose benefit the election propaganda was printed or aired.

x x x x

4.3. Print, broadcast or outdoor advertisements donated to the
candidate or political party shall not be printed, published, broadcast or
exhibited without the written acceptance by the said candidate or political
party. Such written acceptance shall be attached to the advertising contract
and shall be submitted to the COMELEC as provided in Subsection 6.3 hereof.
(Emphasis supplied.)


Paragraphs 4.1 and 4.3, Section 4 of R.A. No. 9006 are reflected in Section
13 (3) and Section 14 of COMELEC Resolution No. 6520.
[22]


To emphasize, Section 4 of R.A. No. 9006 requires that print advertisements
donated to a candidate shall not be published without the written acceptance of the
said candidate, which written acceptance shall be attached to the advertising
contract and submitted to the COMELEC.

The requirement for a written acceptance by a candidate of donated
advertisements is a safeguard provided by law against the danger of publishing or
broadcasting election propaganda beyond the required frequency, size and other
limitations imposed by law without the candidates express agreement, since the
violation of such requirements results in the prosecution of the candidate for an
election offense punishable under the first and second paragraphs of Section 264 of
the Omnibus Election Code.
[23]
Under Section 264 of the Omnibus Election Code,
a person found guilty of an election offense shall be punished with imprisonment
of not less than one year but not more than six years and shall not be subject to
probation. In addition, the guilty party shall be sentenced to suffer
disqualification to hold public office and deprivation of the right of suffrage.

In this case, the COMELEC did not question petitioners averment that the
advertisement in question was paid for by the organization named Friends of Alvin
Garcia. The advertisement may be considered as a donation to petitioner under
Section 4 of R.A. No. 9006 and its IRR. Paragraph 4.3, Section 4 of R.A. No. 9006
explicitly requires that print x x x advertisements donated to the candidate or
political party shall not be printed, published x x x without the written acceptance
by the said candidate.
[24]
Since the advertisement in question was published by
the Sun Star, there arises a presumption that there was written acceptance by
petitioner of the advertisement paid for or donated by his friends in the absence of
evidence to the contrary. Under the Rules on Evidence, it is presumed that the law
has been obeyed, and that private transactions have been fair and regular.
[25]


Following the general rule, the Court will not interfere with the finding of
probable cause by the COMELEC, absent a clear showing of grave abuse of
discretion that must be so patent and gross as to amount to an evasion or refusal
to perform a duty enjoined by law or to act in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of passion or
hostility.
[26]


The records show that the COMELEC has filed an Information charging
petitioner with violation of Section 6 of R.A. No. 9006 and its IRR with the RTC of
Cebu City, Branch 12, which has thereby acquired jurisdiction over the
case. Consequently, all the subsequent dispositions of the said case must be
subject to the approval of the court. Hence, the case must be allowed to take its
due course.
[27]


WHEREFORE, the petition for certiorari is hereby DISMISSED. The
Resolutions of the COMELEC en banc dated April 28, 2005 and October 5, 2005
areAFFIRMED.

No costs.

SO ORDERED.

DIOSDADO M. PERALTA
Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice


No part
ANTONIO T. CARPIO RENATO C. CORONA
Associate Justice Associate Justice



CONCHITA CARPIO MORALES PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice





ANTONIO EDUARDO B. NACHURA TERESITA J. LEONARDO-DE CASTRO
Associate Justice Associate Justice





ARTURO D. BRION LUCAS P. BERSAMIN
Associate Justice Associate Justice





MARIANO C. DEL CASTILLO ROBERTO A. ABAD
Associate Justice Associate Justice





MARTIN S. VILLARAMA, JR. JOSE P. PEREZ
Associate Justice Associate Justice



On leave
JOSE C. MENDOZA
Associate Justice



CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court.



REYNATO S. PUNO
Chief Justice




*
No part.
**
On leave.
[1]
Under Rule 64 in relation to Rule 65 of the Rules of Court.
[2]
R.A. No. 9006 took effect on February 12, 2001.
[3]
SEC. 4. Requirements for Published or Printed and Broadcast Election Propaganda. x x x 4.1. Any
newspaper, newsletter, newsweekly, gazette or magazine advertising, posters, pamphlets, comic books, circulars,
handbills, bumper stickers, streamers, simple list of candidates or any published or printed political matter and any
broadcast of election propaganda by television or radio for or against a candidate or group of candidates to any
public office shall bear and be identified by the reasonably legible or audible words political advertisement paid
for, followed by the true and correct name and address of the candidate or party for whose benefit the election
propaganda was printed or aired.
SEC. 6. Equal Access to Media Time and Space. - All registered parties and bona fide candidates shall have
equal access to media time and space. The following guidelines may be amplified on by the COMELEC:
6.1 Print advertisements shall not exceed one-fourth (1 /4) page in broadsheet and one-half (1/2) page in
tabloids thrice a week per newspaper, magazine or other publications, during the campaign period.
[4]
SECTION 11. Prohibited Forms of Election Propaganda. -- During the campaign period, it is
unlawful:
1. To print, publish, post or distribute any newspaper, newsletter, newsweekly, gazette or magazine
advertising, pamphlet, leaflet, card, decal, bumper sticker, poster, comic book, circular, handbill, streamer, simple
list of candidates or any published or printed political matter and to air or broadcast any election propaganda by
television or radio for or against a candidate or group of candidates to any public office, unless they bear and be
identified by the simple legible, or audible words "political advertisements paid for," followed by the true and
correct name and address of the candidate, political party, or party list group, organization, and/or coalition thereof
for whose benefit the election propaganda was printed or aired.
x x x x

SECTION 13. Requirements and/or Limitations on the Use of Election Propaganda through Mass Media. -
- All registered political parties, party-list groups, organizations, and/or coalitions thereof, and bona fide candidates
shall have equal access to media time and space for their election propaganda during the campaign period subject to
the following requirements and/or limitations:
x x x x
2. Printed or Published Election Propaganda

The maximum size of print advertisements for each candidate, whether for a national or local elective
position, or registered political party, party-list group, organization, and/or coalition thereof, shall be, as follows:
a. One fourth (1/4) page - in broadsheets; and
b. One half (1/2) page - in tabloids
Said print advertisements, whether procured by purchase, or given free of charge, shall be published thrice
a week per newspaper, magazine or other publications during the campaign period.
[5]
Rollo, pp. 38-43.
[6]
Id. at 39.
[7]
Id. at 44-51.
[8]
COMELEC Resolution dated April 28, 2005, records, pp. 26-27.
[9]
Rollo, pp. 27-28.
[10]
Id. at 28.
[11]
Id. at 52-61.
[12]
Id. at 62-64.
[13]
Id. at 31-37.
[14]
RTC Order dated December 21, 2006, rollo, pp. 93-96.
[15]
Id. at 96.
[16]
Rollo, p. 9.
[17]
SEC. 265. Prosecution. The Commission shall, through its duly authorized legal officers, have the
exclusive power to conduct preliminary investigation of all election offenses punishable under this Code, and to
prosecute the same. The Commission may avail of the assistance of other prosecuting arms of the
government: Provided, however, that in the event that the Commission fails to act on any complaint within four
months from his filing, the complainant may file the complaint with the office of the fiscal or with the Ministry of
Justice for proper investigation and prosecution, if warranted.
[18]
Romualdez v. Commission on Elections, G.R. No. 167011, April 30, 2008, 553 SCRA
370, citing Baytan v. Commission on Elections, 396 SCRA 703 (2003).
[19]
Supra, at 709.
[20]
Id.
[21]
Id.
[22]
Section 13. Requirements and/or Limitations on the Use of Election Propaganda through Mass Media.
All registered political parties, party-list groups, organizations, and/or coalitions thereof, and bona fide candidates
shall have equal access to media time and space for their election propaganda during the campaign period subject to
the following requirements and/or limitations:
x x x x
3. Common requirements limitations
a) Any printed or published, and broadcast election propaganda for or against a candidate or group
of candidates to any public office shall bear and be identified by the reasonably legible or audible
words political advertisement paid for, followed by the true and correct name and address of the
candidate or party for whose benefit the election propaganda was printed or aired;
x x x x
Section 14. Print, broadcast or outdoor advertisements or election propaganda donated to a candidate,
political party, or party-list group, organization, and/or coalition thereof shall not be printed, published, broadcast, or
exhibited, unless it is accompanied by the written acceptance by said candidate, political party, or party-list group,
organization, and/or coalition thereof.
Such written acceptance shall be attached to the advertising contract and shall be submitted to the
Commission, through the City/Municipal Election Officer (EO) concerned, or in the case of the National Capital
Region (NCR), the Education and Information Department.
[23]
R.A. No. 9006, Sec. 13. Authority of the COMELEC to Promulgate Rules; Election Offenses.
x x x x
Violation of this Act and the rules and regulations of the COMELEC issued to implement this Act shall be
an election offense punishable under the first and second paragraphs of Section 264 of the Omnibus Election Code
(Batas Pambansa Blg. 881).
[24]
Emphasis supplied.
[25]
Sec. 3 (p), (ff), Rule 131 (Burden of Proof and Presumptions), Rules on Evidence, Rules of Court.
[26]
Romualdez v. Commission on Elections, supra note 18.
[27]
Id.
EN BANC
[G.R No. 128054. October 16, 1997]
KILOSBAYAN, INC., FERNANDO A. SANTIAGO, QUINTIN S.
DOROMAL, EMILIO C. CAPULONG JR., RAFAEL G.
FERNANDO, petitioners, vs. COMMISSION ON ELECTIONS,
SALVADOR ENRIQUEZ, FRANKLIN DRILON, CESAR SARINO,
LEONORA V. DE JESUS, TIBURCIO RELUCIO, ROLANDO V.
PUNO, BENITO R. CATINDIG, MANUEL CALUPITAN III, VICENTE
CARLOS, FRANCISCO CANCIO, JIMMY DURANTE, MELVYN
MENDOZA, respondents.
D E C I S I O N
HERMOSISIMA, JR., J .:
Special Provision No. 1 of the Countrywide Development Fund (CDF) under
Republic Act No. 7180, otherwise known as the General Appropriations Act (GAA) of
1992 allocates a specific amount of government funds for infrastructure and other
priority projects and activities. In order to be valid, the use and release of said amount
would have to proceed upon strict compliance with the following mandatory
requirements: (1) approval by the President of the Philippines; (2) release of the amount
directly to the appropriate implementing agency; and (3) list of projects and activities.
In a letter, dated March 17, 1992, respondent Cesar Sarino, the then Secretary of
Interior and Local Government, requested for authority to negotiate, enter into and sign
Memoranda of Agreements with accredited Non-Governmental Organizations (NGOs)
in order to utilize them to projects of the CDF provided for under R.A. No. 7180.
Thereafter, in an undated letter
[1]
, respondent Franlin Drilon, the then Executive
Secretary, granted the above-mentioned request of Secretary Sarino. Such an authority
was extended to all the Regional Directors of the Department of Interior and Local
Government (DILG).
Pursuant to the above-described authority granted him as the then Regional
Director of the DILG-NCR, respondent Tiburcio Relucio, on April 24, 1992, entered in
the Memorandum of Agreement
[2]
with an accredited NGO known as Philippine Youth
Health and Sports Development Foundation, Inc. (PYHSDFI).
The PYHSDFI was registered with the Securities and Exchange Commission (SEC)
on October 25, 1985 as a non-stock, non-profit foundation with principal address at
AFMC Building, Amorsolo Street, Makati City.
[3]
Its incorporators were private
respondents Benito Catindig, President; Manuel Calupitan, Vice-president; Francisco
Cancio, Treasurer; Melvin Mendoza, Secretary; and Ronaldo Puno, Chairman.
[4]

The PYHSDFI was organized to promote among the youth, consciousness and
greater involvement and participation in sports and cultural development activities
through training camps and demonstration seminars conducted by qualified experts in
the field.
[5]

Not long after its incorporation, that is, in 1987, the PYHSDFI suspended its
operations because of lack of fund donations and the migration to the United States of
many of its members.
[6]
The foundation became active again in October, 1991.
[7]

In order to be eligible for financial assistance, the PYHSDFI, on December 12,
1991, applied with DILG for accreditation as NGO in Accordance with the guidelines
prescribed in Memorandum Circular No. 90-07, dated January 31, 1990.
[8]

On March 23, 1992, the PYHSDFI approved Board Resolution No. 7, series of
1992, requesting for allocation from the governments CDF in order to implement its
various sports, health, and cultural activities in specific areas in Metro Manila.
[9]
Hence,
the Memorandum of Agreement dated April 24, 1992 was entered into by PYHSDFI
President Catindig and DILG-NCR Regional Director Relucio. In compliance with
accreditation requirements of the DILG, the PYHSDFI, on April 27, 1992, filed with SEC
a new set of by-laws.
[10]

Under the said Memorandum of Agreement, it was the express responsibility of the
DILG to effect the release and transfer to PYHSDFI of the amount of Seventy Million
Pesos (P70,000,000.00)
[11]
from the aggregate allocation of the CDF for complete
implementation of the foundations sports, health and cultural work program.
Respondent Salvador Enriquez, as Secretary of the Department of Budget and
Management (DBM), signed April 22, 1992 and released on April 30, 1992, Advice of
Allotmet (AA) No. BC-8494-92-215 dated April 22, 1992, allocating the amount of
Seventy Million Pesos from the CDF under object 200-10 to cover financial assistance
for sports, health and cultural programs and other related activities in various barangays
in the National Capital Region.
[12]

The release of Seventy Million Pesos was made in several checks:
[13]

Date PNB Check No. Amount
May 5, 1992 138051 P23,000,000.00
May 5, 1992 138052 P23,000,000.00
May 6, 1992 138060 P24,000,000.00
During the hearing of the Senate Committee on Finance on November 22, 1993,
DILG Budget Officer Rafael Barata confirmed the above allotment as part of the amount
of Three Hundred Thirty Million Pesos (P330,000,000.00) that was released by DBM
from the 1992 CDF. The exact amount released to DILG-NCR was P76,099,393.00
while the amounts released to the other regions are as follows:
Region I - P14,192,834.00
Region II - 108,000.00
Region III - 19,115,000.00
Region IV - 74,131,150.00
Region V - 25,047,991.00
Region VI - 5,545,000.00
Region VII - 20,159,500.00
Region VIII - 23,006,600.00
Region IX - 19,900,900,00
Region X - 25,356,012.00
Region XII - 9,549,000.00
CAR - 10,300,000.00
The total amount disbursed under the CDF was P330,470,688.00.
On December 14, 1993, public respondent Commission on Election (Comelec)
received from petitioner Kilosbayan a letter informing of two x x x serious violations of
election laws
[14]
, thus:
1. The documented admission of Secretary of Budget Salvador Enriquez, in the
October 5, 1993 hearing of the Commission on Appointments, that the amount of P70
million was released by his department, shortly before the elections of May 11, 1992,
in favor of a private entity, the so-called Philippine Youth, Health and Sports
Development Foundation, headed by Mr. Rolando Puno, who had been repeatedly
identified by columnist Teodoro Benigno as a key member of the Sulu Hotel
Operation (SHO), which had reportedly engaged in dirty election tricks and practices
in said election. x x x
2. The illegal diversion of P330 million by Malacaang from the Countryside
Development Fund to Department of Interior and Local Government which disbursed
this huge amount shortly before the May 11, 1992 election, as revealed by DILG
Budget Officer Barata, in a hearing of Senate Finance Committee, chaired by Sen.
Vicente Sotto III, held last November 22, 1993.
[15]

and request[ing] that x x x these offenses and malpractices be investigated promptly,
thoroughly, impartially, without fear or favor, so that public confidence in the integrity
and purity of the electoral process may be immediately restored for the sake of our
newly-regained democracy
[16]

On December 14, 1993, then Comelec Chairman Christian Monsod called a
meeting of the Comelec En Banc which resolved to refer petitioner Kilosbayans letter-
complaint to Law Department for comment and/or reccomendation.
[17]
Said letter
compliant was docketed as E.O. No. 93-193.
The evidence proffered by Kilosbayan in support of its letter-complaint consisted of
the published writings of Teodoro Benigno
[18]
in his column in the Philippine Star
newspaper imputing to the so-called Sulo Hotel Operation (SHO) headed by PYHSDFIs
chairman, Ronaldo Puno, the commission of illegal election activities during the May 11,
1992 elections, including the obtention of government funds for electioneering
purposes; the transcripts of record of the testimony of Secretary Enriquez before the
Commission on Appointments during the hearing on October 5, 1993 and of the
testimony of DILG Budget Officer Rafael Barata before Senate Finance Committee
during a hearing on November 22, 1993; and an Affidavit executed by Norberto
Gonzales, a congressional candidate in the May 11, 1992 elections, who alleged therein
that at Makati Headquarters of the Lakas-NUCD, in February, 1992, he overheard
respondents Franklin Drilon and Leonora de Jesus discussing party plans to use the
funds of various government offices to finance the partys election campaign and that
ten (10) days or so before May 11, 1992, he obtained his election propaganda
materials, following instructions from the partys National Headquarters, from the Sulo
Hotel in Quezon City.
In Memorandum dated March 28, 1994, Comelec Commissioner Regalado
Maambong informed Chairman Christian Monsod that petitioner Kilosbayan [has
already] presented their affidavits and supporting documents and [that] it is now time for
the respondents to be subpoenaed and for them to present their counter-affidavits and
supporting documents, if any, relative to the complaint of the Kilosbayan for illegal
disbursement of public funds in the May 11, 1992 synchronized elections
[19]

On March 29, 1994, the Comelec En Banc, during its regular meeting, directed Atty
Jose P. Balbuena, Director of Law Department, to issue the proper subpoenas and
subpoena duces tecum in connection with the hearing of the Kilosbayan letter-
complaint; to proceed in accordance with the Comelec Rules and Procedure relative to
the investigation of cases involving election offenses; and submit a complete report
within ten (10) days from the termination of the investigation.
[20]

Director Balbuena issued a subpoena dated April 17, 1994
[21]
addressed to
respondents Salvador Enriquez, Ronaldo Puno, Francisco Cancio, Vicente Carlos,
Jimmy Durante, Melvin Mendoza and Other John Does requiring them to appear at the
Office of the Director on April 28, 1994 and to submit their respective counter-affidavits
and other supporting documents, if any, in connection with petitioner Kilosbayans letter-
complaint against them.
On May 10, 1994, respondents Melvin Mendoza and Salvador Enriquez filed their
respective counter-affidavits
[22]
specifically denying all the accusatory allegations in
petitioner Kilosbayans letter-complaint.
On May 25, 1994, respondent Vicente Carlos submitted his counter-affidavit.
[23]

For his part, respondent Francisco Cancio filed a Manifestation
[24]
dated May 24,
1994 that he cannot submit his counter-affidavit due to lack of material time.
Thereafter, petitioner Kilosbayan manifested that it will file a consolidated reply to
Counter-Affidavits of respondents Mendoza, Enriquez and Carlos. In order to give
petitioner Kilosbayan sufficient time to prepare its consolidated reply, the hearing was
set on June 6, 1994.
When June 6, 1994 came, however, petitioner Kilosbayan filed, not a consolidated
reply, but a pleading denominated as Interrogatives
[25]
dated May 20, 1994. Said
pleading contained a list of questions sought to be propounded to respondents
Enriquez, Carlos and Mendoza in an attempt to elicit from them confirmation regarding
the questioned CDF allotment, specifically the cash allocation received by PYHSDFI,
and the consumption thereof by PYHSDFI chairman Ronaldo Punos SHO for its
reported illegal election campaign activities during the May 11, 1992 election.
Amidst opposition forged by respondents Enriquez and Mendoza, the Comelec Law
Department, through Director Balbuena, scheduled the clarificatory questioning on July
9, 1994.
[26]

Through a Motion for Reconsideration dated July 5, 1994, respondent Enriquez
persisted to question the legality of the scheduled clarificatory questioning on the
ground that the same is in violation of his constitutional right against self-
incrimination. Said motion, however, was denied by the Comelec Law Department
through Director Balbuena.
Thus, respondents Enriquez and Mendoza filed separate Petition
for Certiorari
[27]
before the Comelec En Banc assailing the afore-mentioned orders of
Director Balbuena.
The Comelec En Banc treated said petitions as motions for reconsideration or
petitions for review, of the orders of Director Balbuena giving due course to petitioner
Kilosbayans Interrogatories and scheduling the same for hearing. Ultimately, it ruled in
favor of respondents Enriquez and Mendoza and held that the questions sought by
petitioner Kilosbayan to be propounded by Director Balbuena to said respondents, are
being raised in a preliminary investigation during which any person being accused of an
offense, has the right to remain silent, among others.
[28]

On February 9, 1995, the Comelec En Banc, during its regular meeting,
promulgated Minute Resolution No. 95-0713 approving, with modification, the
recommendations of Law Department, as follows:
1. To dismiss the complaint against Secretary Salvador Enriquez, Jr. for
insufficiency of evidence to establish a probable cause;
2. To hold in abeyance the case aginst Ronaldo Puno, Vicente Carlos, Melvin
Mendoza, Francisco Cancio and Jimmy Durante, and to direct the Commission on
Audit (COA) to conduct further rigid and extensive investigation on the alleged
irregularities or anomalies stated in its report dated November 15, 1993 and to submit
its report on such investigation including pertinent papers thereof, which shall be
included in the re-evaluation of the existing documents pertaining to the PYHSDFI
before the case of the above respondents be re-submitted to this Commission for
resolution;
3. To order the Law Department to summon Atty. Tiburcio A. Relucio, former
Regional NCR-DILG Director to shed light on the Kilosbayan complaint or the P70
million which were allotted by his office to the PYHSDFI shortly before the May 11,
1992 synchronized national and local elections:
4. To direct the Law Department to send a letter to former DILG Secretary Cesar
Sarino to explain allotments and sub-allotments per evaluation report of the Law
Department x x x; [and]
5. To direct the Kilosbayan to identify, under oath, the John Does in their
complaint.
[29]

Dismissing the case against respondent Enriquez, whose evidence of strict
compliance with the requirements of R.A. No. 7180 prior to the release of the Seventy
Million Pesos to PYHSDFI, was significantly left unrebutted by petitioner Kilosbayan, the
Comelec En Banc reserved the disposition of the case against Ronaldo Puno and other
PYHSDFI officers until after submission by the COA of a more detailed report of the
nature and extent of the anomalous practices of the PYHSDFI in the utilization of the
CDF money allocated thereto. Easily understandable is the need for further
investigation by the COA, considering that nothing on the Special Audit Report on
PYHSDFIs CDF allocation imputed the use thereof for electioneering activities.
In response, however, to the letter of the Comelec Law Department dated August
20, 1995 requesting the COA to conduct a more rigid and extensive investigation, COA
Chairman Celso Gangan wrote Director Balbuena on September 12, 1995 that the
facts stated in our report dated November 15, 1993 are already complete; that the
report does not make mention of irregularities or anomalies, rather deficiencies like lack
of supporting documents to fully substantiate the disbursement x x x although the
distribution of funds by the Foundation is supported by the a list x x x
[30]

On the same day, August 20, 1995, a letter was also sent to respondent Cesar
Sarino, former DILG Secretary, requesting him to submit a verified explanation
regarding the sub-allotments issued by his office on several dates in February and
March, 1992, as well as some various sub-allotments issued by respondent Leonora de
Jesus, then Undersecretary of the DILG.
In the meantime, in a letter dated August18, 1995, Director Balbuena asked
petitioner Kilosbayan to identify, under oath, the John Does in their complaint
Responding through a letter,
[31]
petitioner Kilosbayan, through its Acting President, Cirilo
A. Rigos, gave the following names:
Cesar Sarino Victor Sululong
Leonora de Jesus Dionisio de la Serna
Jose Almonte Gabriel Claudio
Franklin Drilon
The above-named respondents were duly subpoenaed. Thereafter, they filed their
respective Comments and/or Answers.
On November 13, 1995, respondent Cesar Sarino Submitted his Sworn
Explanation/Comment remonstrating that the questioned sub-allocations were approved
only after a strict compliance with the proscribed time frame under the law which was
March 27, 1992 until May 2, 1992 and prohibition against public work expenditures.
Respondent Gabriel Claudio filed his Comment/Answer on December 12, 1995
contending that he had not yet joined government at any time before the May 11, 1992
elections.
Respondents Franklin Drilon filed his Comment on January 29, 1996 denouncing as
hearsay the sole evidence against him consisting of Teodoro Benignos newspaper
articles implicating him in the SHO.
Dionisio de la Serna, Victor Sumulong and Jose Almonte, who were additionally
named as respondents by petitioner Kilosbayan, denied any knowledge or participation
in the election offenses subject of the letter-complaint and objected thereto for failure to
state, with particularity, the acts that they had supposedly committed in the violation of
the Omnibus Election Code. Likewise, they pointed out that Teodoro Benigno
newspaper articles constituted hearsay evidence bereft of any probative value.
Insofar as respondent, then DILG-NCR Regional Directior, Tiburcio Relucio was
concerned, the Law Department was unable to subpoena him because he was abroad.
No rebuttal evidence was tendered by petitioner Kilosbayan to dispute the counter-
allegations of herein respondents. Notably, too, petitioner Kilosbayan did not offer any
additional evidence, in the place of Teddy Benignos published newspaper articles
implicating PYHSDFIs Ronaldo Puno and the SHOs electioneering activities during the
1992 elections, in order to show even some semblance of a connection between the
PYHSDFIs CDF allotment and SHOs electioneering activities.
On April 3, 1996, the Comelec Law Department issued the following finding and
recommendations:
SYNOPSIS OF CASE
[1] TITLE:
'KILOSBAYAN VS. SECRETARY SALVADOR ENRIQUEZ, JR., ET AL.
[2] DOCKET NUMBER:
E.O Case No. 93-193
[3] LAW ALLEGEDLY VIOLATED:
Section 261 (o), (v) and (w) of the Omnibus Election Code. (Use of public funds,
money deposited trust, x x x, for an election campaign; Prohibition against release,
disbursement or expenditure of public funds for any and all kinds of public works; and
Prohibition against construction of public works, delivery of materials for public
works and issuance of treasury warrants and similar devices).
[4] FINDINGS:
The Law Department finds that there is insufficient ground to engender a well-
founded belief that respondents Ronaldo Puno, Secretary Vicente Carlos, Melvin
Mendoza, Francisco Cancio, Jimmy Durante, Hon. Cesar N. Sarino, Leonora V. de
Jesus, Jose Almonte, Dionisio de la Serna, Victor Sumulong, Franklin Drilon and
Gabriel (Gabby) Claudio have committed the acts being complained of and probably
guilty thereof and should be held for further proceedings (trial) considering that the
allegations in the complaint are plain conjectures, speculations and based on hearsay
evidence. The other set of evidence which was obtained through coercive processes
of the Commission did not show that the acts as reflected therein come within the
proscription of Section 261 (o), (v) and (w) of the Omnibus Election Code.
[5] RECOMMENDATION:
To dismiss the complaint of Kilosbayan against all the respondents.
x x x
[32]

The details of the investigation and a complete discussion of the evidence
submitted by the contending parties are laid out in the 16-page Study
[33]
attached to the
aforecited Synopsis of the Case. Essentially, the Law Department evaluated the
evidence in this wise:
The provision of the Omnibus Election Code that may have been possibly violated
by the respondents in the KILOSBAYAN complaint, are as follows:
SEC. 261. Prohibited Acts following shall be guilty of an election offense:
xxx xxx xxx
(o) Use of public funds, money deposited in trust, equipment, facilities owned or
controlled by the government for an election campaign. Any person who uses under
any guise whatsoever, directly or indirectly, (1) public funds or money deposited with,
or held in trust by, public financing institutions or by government offices, banks, or
agencies; x x x x for any election campaign or for any partisan political activity.
(v) Prohibition against release, disbursement or expenditure of public funds Any
public official or employee including barangay officials and those of government-
owned or controlled corporations and their subsidiaries, who, during forty-five days
before a regular election and thirty days before special election, releases, disburses or
expends any public funds for:
(1) Any and all kinds of public works, except the following:
xxx xxx xxx
(w) Prohibition against construction of public works, delivery of materials for public
works and issuance of treasury warrants and similar devices during the period of
forty-five days preceding a regular election and thirty days before a special election,
any person who (a) undertakes the construction of any public works, except for
projects or works exempted in the preceding paragraph; or (b) issues, uses or avails of
treasury warrants or any device undertaking future delivery of money, goods or other
things of value chargeable against public funds.
The Commission on Audit, thru its Chairman, pointed out, in its letter dated
September 12, 1995, that the facts stated in their report dated November 15, 1993 are
already complete and that the report does not make mention of irregularities or
anomalies, rather deficiencies like lack of supporting documents to fully substantiate
the disbursements, such that although the distribution of funds by the Foundation is
supported by a list, this does not show the acknowledgment by supposed recipients.
Although the report of the COA dated November 15, 1993 mentioned that upon the
start of the audit, it was disclosed that PYHSDFI did not keep book of accounts,
wherein to record its transactions, which constitute(s) a basic requirement in the
accounting for funds and all it had to evidence its disbursements are vouchers, many
of which are not supported by receipts or other documents, it does not show that the
public funds released to it by the DILG was used for any election campaign or for any
partisan political activity. The report says:
(2) The inadequate financial reports, book of accounts and other supporting
documents rendered verification of total disbursement of P70M difficult,
This consist of the following:
a) Meals./snacks P14,465,000
b) Prof. fees/allowances
travel expenses P17,881,500
c) Rental site/facilities P 3,441,480
d) Purchases of supplies and materials P34,221,020
P70,000,000
This particular part of the report of the COA also clearly showed that the public funds
in the hands of the PYHSDFI were not used for any and all kinds of public works.
Further it says:
3.A In most of the transactions undertaken, cash payments [were] used in paying
their obligations, since it would have been significantly expensive it in overhead cost
to maintain a pool of administrative staff and besides no allocation of such expenses
[was] programmed. Moreover, most [the] expenses were in the category of payrolls
which [had] to be paid in cash. [L]likewise suppliers asked for cash-ondelivery
(COD) basis since the prices given were the lowest obtainable commercial rates.
This showed that not all obligations of the PYHSDFI were paid in cash, in other
words, the other obligations were paid in forms which may be checks or any other
device undertaking future delivery of money. However, no single piece of evidence
was presented by Kilosbayan to prove its complaint to determine whether they
(checks) have been issued within the prohibited period.
In the light of the foregoing, the Law Department reiterates its former findings in its
Study for Agenda dated February 8, 1995 that in the case of respondents Ronald
Puno, Secretary Vicente Carlos, Melvin Mendoza, Francisco Cancio and Jimmy
Durante, based on the existing documents appearing on the records, no probable cause
exists against them for violation of the election law. It is well-settled that the
complainant must rely on the strength of his evidence and not on the weakness of the
evidence of the respondent[s].
In the case of Hon. Cesar N. Sarino, he alleged that his approvals of the sub-
allocations reflect a strict compliance with the law and do not violate Section 261 (v)
of the Omnibus Election Code as their approval [was] not within the proscribed time
frame as designated by the Commission on Elections, and Advice of Sub-allotment
No. DILG-92-2-128 covers a type of expenditure which is not public works
expenditure, hence, not violative of said provision of law.
xxx xxx xxx
x x x [A]n incisive, careful, meticulous and rigid review and re-evaluation of the
above-listed sub-allotments revealed, that the nine (9) sub-allotments approved by
former DILG Secretary Cesar Sarino which appeared to be for construction of public
works are actually nine (9) pages of five (5) sub-allotments x x x and the one (1) sub-
allotment issued by Undersecretary Leonora V. de Jesus which appeared to be for
construction of public works is actually:
(b) Sub-allotment No. Date of Approval Page No.
1] 92-1-90 March 19, 1992 1
To be liable for violation of Section 261 (v), supra, four (4) essential elements must
concur and they are:
1) A public official or employee releases, disburses, or expends any public funds;
2) The release, disbursement or expenditure of such public funds must be within
forty-five days before regular election (March 27, 1992 until May 11, 1992, Section 1,
Comelec Resolution No. 2332, Jan. 02, 1992);
3) The release, disbursement or expenditure of said public funds is for any and all
kinds of public works; and
4) The release, disbursement or expenditure of the public funds should not cover any
exceptions of Section 261 (v).
Except for Sub-allotment No. 92-1-94 and Sub-allotment No. 92-2-128 approved on
March 27, 1992 and April 22, 1992, respectively, by former DILG Secretary Cesar
Sarino, not one of the sub-allotments listed above does fall within the proscribed
period. Sub-allotment No. 92-1-98 was approved to cover the
improvement/rehabilitation of Cabucgayan Waterworks System of Cabucgayan,
Leyte. This falls within exception (maintenance of existing and/or completed public
works projects) of the proscription being merely a rehabilitation of an existing public
works project. Sub-allotment No. 92-2-128 was not for any and all kinds of public
works. It was approved to cover the purchase of reference and instructional materials
for distribution to all local executives of the 2
nd
District of Surigao del Norte in support
of the Educational Upliftment Program of the DILG, hence, it could not also fall
within the proscription. The sub-allotment approved by undersecretary Leonora V. de
Jesus, which appreared to be for the construction of public works, having been
approved on March 19, 1992 does not fall within the proscriptive period, hence, it
could not also fall within the proscription.
xxx xxx xxx
Prescinding from the foregoing documents appearing on [the] records, there exist no
sufficient ground to engender a well-founded belief that former DILG Secretary Cesar
Sarino and Undersecretary Leonora V. de Jesus have violated Section 261 (v) of the
Omnibus Election Code.
The Law Department must stress here that the allegations appearing in the columns of
Teodoro Benigno in the Philippine Star on several dates imputing dirty election tricks
and practices (as worded by Kilosbayan) against respondent Jose Almonte, Dionisio
de la Serna, Victor Sumulong, Franklin Drilon and Gabriel (Gabby) Claudio cannot be
admitted as gospel truth because they are purely speculative and conjectural. Suffice
it to say, that, they are mear hearsayevidence. Well-settled is the rule that Newspaper
clippings are hearsay and of no evidentiary value. (People vs. Jovito Aguel, et al., 97
SCRA 795].
Moreover, former Executive Secretary, now Senator, Franklin Drilons undated letter,
where he approved the request for authority dated March 17, 1992 of then former
DILG Secretary Cesar N. Sarino to negotiate, enter into and sign Memoranda of
Agreements with and to utilize the accredited Non-Governmental Organizations
(NGOs), in accordance with the directive of then former President Corazon Aquino
dated March 13, 1992, regarding the implementation of projects under the
Countrywide Development Fund (CDF) provided under R.A. 7180, does not refer to
any release, disbursement, or expenditure of public funds for construction of public
works.
Consequently, there also exist no sufficient evidence to engender a well-grounded
belief that respondents Jose Almonte, Dionisio de la Serna, Victor Sumulong, franklin
Drilon and Gabriel (Gabby) Claudio have violated Section 261 (o) and (v) of the
Omnibus Election code.
It would not be amissed to state here in passing that well-enshrined is the rule that the
complainant must submit evidence to prove his case. IN THE INSTANT CASE,
COMPLAINANT KILOSBAYAN DID NOT SUBMIT EVIDENCE TO PROVE ITS
CASE. IT POSTULATES THE THEORY THAT SINCE IT IS THE
CONSTITUTIONAL POWER OF THE COMMISSION TO ENFORCE AND
ADMINISTER ALL LAWS AND REGULATIONS RELATIVE TO THE
CONDUCT OF ELECTION, IT IS INCUMBENT TO USE ITS CONSTITUTIONAL
POWER TO SECURE THE NEEDED EVIDENCE. THIS POSITION OF THE
KILOSBAYAN IS PATENTLY ERRONEOUS AS IT IS NOT ONLY ITS LEGAL
OBLIGATION BUT ALSO ITS MORAL DUTY TO SUBMIT ITS EVIDENCE TO
PROVE ITS COMPLAINT. x x x
[34]

Adopting the foregoing findings and conclusions of the Law Department, the
Comelec En Banc promulgated Minute Resolution No. 96-1037 dismissing the charges
against the following: respondents Ronaldo Puno, Vicente Carlos, Melvin Mendoza,
Francisco Cancio and Jimmy Durante for violation of Section 261 (o), (v) and (w) of the
Omnibus Election Code; respondents Cesar Sarino and Leonora de Jesus for violation
of Section 261 (v) of the Omnibus Election Code; and respondent Franklin Drilon and
others also charged in petitioners complaint, namely, Jose Almonte, Dionisio de la
Serna, Victor Sumulong and Gabriel Claudio, for violation of Section 261 (o) and (v) of
the Omnibus Election Code, all on ground of insufficiency of evidence to establish
probable cause.
Petitioner Kilosbayan, however brushed off responsibility for adducing evidence of
herein respondents culpability, and adamantly demanded that the Comelec perform its
constitutional duty of prosecuting election offenses upon any, even meager, information
of alleged commission of election offenses.
Its complaint having been dismissed in the aforementioned Resolutions dated
February 9, 1995 and April 11, 1996, respectively, petitioner filed a Motion for
Reconsideration dated May 16, 1997 and a Supplemental Motion for Reconsideration
dated June 7, 1996 seeking the nullification of the said Resolutions and praying for the
filing of corresponding criminal complaints and/or informations against herein
respondents.
Reiterating the dismissal of E.O. Case No. 93-193, however, the Comelec denied
the motions in the Resolution dated October 30, 1996.
[35]

The Comelec Resolution dated January 20, 1997 contained the detailed basis for
the final dismissal of E.O. Case No. 93-193. Discussing point by point the arguments
raised by petitioner in its Motion for Reconsidiration and Supplemental Motion for
Reconsideration, the Comelec En Banc unanimously held, thus:
Movant complains:
The Law Department makes it appear that the KILOSBAYAN has greater
responsibility in the enforcement of election laws than the COMELEC to make it its
moral and legal duty to spend its time and private funds to gather evidence from
public offices to convince the COMELEC that there is sufficient evidence to establish
the guilt of the respondents.
x x x
It may do well to remember that the Constitution charged the COMELEC with the
responsibility to x x x
x x x
(6) x x x where appropriate, prosecute cases of violations of election laws, including
acts or omissions constituting election frauds, offenses, and malpractices. (emphasis
theirs)
The Commission has no quarrel with Complainant that indeed the Constitution tasked
this Body with the prosecution of election offenses. But the constitutional provision
made it clear that prosecution should be made only where it is appropriate. It is
appropriate when it is established in the preliminary investigation that probable cause
exist to justify the filing of the necessary information against the accused.
Lest the Complainant forgets, it initiated the complaint. Thus, on it rests the burden of
supporting its charges with affidavits and/any evidence, for it is upon the evidence
thus adduced, that the investigating officer shall determine whether or not there is
sufficient ground to hold the respondent for trial. This is so provided under the
COMELEC Rules of Procedure x x x.
Nonetheless, even with Complainants failure to submit substantial enough to justify
findings of probable cause, the Commission, through its Law Department undertook
an investigation of the case. The Law Department summoned the parties, took
testimonies of witnesses, secured documents, and conducted hearings. The result of
the preliminary investigation was certainly on the basis of the evidences adduced by
complainant and the facts gathered by the Department on its own initiative.
x x x
No other evidence except Mr. Benignos articles were submitted [by petitioner] to
prove the existence of the so called Sulo-Hotel Operations. Newspaper clippings are
hearsay and of no evidentiary value. (People v. Aquel, et al., 97 SCRA 795). x x x
[Further] x x x [petitioner] wants the Commission to derive from [the Commission on
Audit] report the conclusion that because there were discrepancies, to wit: 1. No
books of account [were] maintained by the NGO [i.e., PHYSDFI]; and 2. Cash
payments were made regardless of amount, then the allocation to PHYSDFI were
made for electioneering purposes. Indeed, there could have been, as alleged by
Complainant, irregularities in the allocation, but it must be shown by the quantum of
evidence required to establish probable cause that such irregularities constituted
election offense. This, Compalinants evidences failed to show.
x x x
It was established that the PHYSDFI received from DILG-NCR an allocation of P70
million. To Complainant the nature of the allocation and the amount of the
expenditures made by PHYSDFI within a short period of time, i.e., immediately
before the elections and in the light of the fact that it stopped all its operations shortly
after the elections established beyond reasonable doubt that the foundation was
engaged in partisan political activity. Complainant further averred that the flight of
the heads of the foundation (Puno and Catindig) and Regional Director Tiburcio A.
Relucio who went into hiding after the series of exposes by columnist Teodoro
Benigno constitutes an implied admission of guilt. x x x
It is the Law Departments findings and so is Ours, that the nature and amount of
expenditure within a short period of time are not sufficient to meet the quantum proof
required to establish that said contributions were made for partisan political
activity. It must be emphasized that the burden is on Kilosbayan to prove its
allegations. He who alleges must prove his allegation. Unfortunately for
Complainant, it was not able to produce evidence showing that the contribution was
used for partisan political activity.
x x x
Complainant posits the view that respondents are liable x x x because the sports and
medical kits were unlawful election propaganda, having been purchased and
distributed a few days before election and the stopped after the election. At most, this
is speculative and presumptive. In the absence of proof amply showing that the
purchase and distribution of gadgets and kits were made to advertise or to further the
chances of victory of candidate or candidates, the Commission cannot justify the
conclusion that probable cause exist to charge respondents x x x.
x x x
While it was established by documents thus presented x x x that there was a release of
public funds by DILG/DILG-NCR, within the prohibited period, the same could not
be considered as a violation x x x because one, the expenditure was not for public
works; and two, the Department of Interior and Local Government can not be
considered as an office of other ministries (departments) performing functions similar
to the Ministry of Social Services and Development or Ministry of Human
Settlements.
Kilosbayans complaints were heard. They were investigated. Complainant was
given full opportunity to argue its case and prove its charges. It presented arguments
but not evidences. It thesis is more on speculations, conjectures and suspicious. It
expects the Commission to find as circumstantial evidence the chain of circumstances
which [it] presented, forgetting that:
The rule on circumstantial evidence necessarily requires that each circumstance must
be positively established with the requisite quantum of evidence, in the same manner
that the catena that binds the together and conduces to a conclusion of guilt must
survive the test of reason and satisfy the required evidentiary weight.' (People vs.
Adofina, 239 SCRA 67)
Unfortunately, Complainant failed to sustantiate with sufficient evidence the
circumstances on which it based the liability of respodents for offenses charged by
way of its Supplemental Motion for Reconsideration. x x x
[36]

Its Motion for Reconsideration and Supplemental Motion for Reconsideration having
been finally denied by the Comelec En Banc, petitioner Kilosbayan has come before us
ascribing grave abuse of discretion to public respondent Comelec for: (1) refusing
and/or neglecting to gather more evidence of respondents culpability, pursuant to its
constitutional duty to prosecute election offenses, through oral arguments upon
petitioners Motion for Reconsideration and Supplemental Motion for Reconsideration as
well as from respondents Rolando Puno and Tiburcio Relucio who, petitioner claims,
have not gone abroad but are actually in the country; and (2) for issuing a blanket
exoneration of all respondents despite the prima facie evidence already in the hands of
Comelec.
The Comelec did not commit any act constituting grave abuse of discretion in
dismissing petitioner Kilosbayans letter-complaint against herein respondents, the
former having failed to prove its case against the latter. As such, this petition must be
dismissed.
Section 2 (7) of Article IX-C of the 1987 Constitution provides that the Comelec shall
exercise the power to investigate and, where appropriate, prosecute cases of violations
of election laws, including acts or omissions constituting election frauds, offenses, and
malpractices. Discerning the rationale for this grant of prosecutorial powers to the
Comelec, we already had occasion to rule, thus:
The grant to the COMELEC of the power, among others, to enforce and administer
all laws relative to conduct of election and the concomitant authority to investigate
and prosecute election offenses is not without compelling reason. The evident
constitutional intendment in bestowing this power to the COMELEC is to insure the
free, orderly and honest conduct of elections, failure of which would result in the
frustration of the true will of the people and make a mere idle ceremony of the sacred
right and duty of every qualified citizen to vote.
[37]

This constitutional grant of prosecutorial power in the Comelec finds statutory
expression under Section 265 of Batas Pambansa Blg. 881, otherwise known as the
Omnibus Election Code, to wit:
SEC. 265. Prosecution. The Commission shall, through its duly authorized legal
officers, have the exclusive power to conduct preliminary investigation of all election
offenses punishable under this Code, and to prosecute the same. The Commission
may avail of the assistance of other prosecuting arms of the government: Provided,
however, That in the event that the Commission fails to act on any complaint within
four months from his filing, the complainant may file the complaint with the office of
the fiscal or with the Ministry of Justice for proper investigation and prosecution, if
warranted.
Insofar as the prosecution of election offenses is concerned, therefore, the Comelec
is the public prosecutor with the exclusive authority to conduct the preliminary
investigation and the prosecution of election offenses punishable under the [Omnibus
Election] Code before the competent court.
[38]
This constitutional and statutory mandate
for Comelec to investigate and prosecute cases of violation of election law translates, in
effect, to the exclusive power to conduct preliminary investigations in cases involving
election offenses for the twin purpose of filing an information in court and helping the
Judge determine, in the course of preliminary inquiry, whether or not a warrant of arrest
should be issued.
[39]

For the effective investigation and prosecution of cases of election offenses and in
the exercise by the Comelec of its quasi-legislative power under Section 6, Article IX of
the 1987 Constitution, the Comelec Rules of Procedure were promulgated, providing,
among others, the guidelines pertinent to election offenses. They are as follows:
Rule 34 Prosecution of Election Offenses
SECTION 1. Authority of the Commission to Prosecute Election Offenses. The
Commission shall have exclusive power to conduct preliminary investigation of all
election offenses punishable under the election laws and to prosecute the same, except
as may otherwise be provided by law.
SEC. 2. Continuing Delegation of Authority to Other Prosecution Arms of the
Government. - The Chief State Prosecutor, all Provincial and City Fiscals, and/or
their respective assistants are hereby given continuing authority, as deputies of the
Commission, to conduct preliminary investigation of complaints involving election
offenses under the election laws which may be filed directly with them, or which may
be indorsed to them by the commission or its duly authorized representatives and to
prosecute the same. Such authority may be revoked or withdrawn any time by the
Commission whenever in its judgment such revocation or withdrawal is necessary to
protect the integrity of the Commission, promote the common good, or when it
believes the successful prosecution of the case can be done by the Commission.
SEC. 3. Initiation of Complaint. Initiation of complaint for election offenses may be
done motu proprio by the Commission, or upon written complaint by any citizen of
the Philippines, candidate, registered political party, coalition of political parties or
organizations under the party-list system or any accredited citizen arms of the
Commission.
SEC. 4. Form of Complaint and Where to File.- (a) When not initiated motu
proprio by the Commission, the complaint must be verified and supported by
affidavits and/or any other evidence. Motu proprio complaints may be signed by the
Chairman of the Commission, or the Director of the Law Department upon direction
of the chairman, and need not be verified.
(b) The complaint shall be filed with the Law Department of the Commission; or with
the offices of the Election Registrars x x x
x x x x x x x x x
SEC. 5. Referral for Preliminary Investigation. If the complaint is initiated motu
proprio by the Commission, or is filed with the Commission by any aggrieved party,
it shall be referred to the Law Department for investigation. Upon direction of the
Chairman of the Commission, the preliminary investigation may be delegated to any
lawyer of said Department, or any of the Regional Election Directors or Provincial
Election Supervisors, or any lawyer of the Commission.
SEC. 6. Conduct of Preliminary Investigation. (a)If on the basis of the complaint,
affidavits and the supporting evidence, the investigating officer finds no ground to
continue with the inquiry, he shall recommend the dismissal of the complaint and
shall follow the procedure prescribed in Section 8 (c) of this Rule. Otherwise, he shall
issue a subpoena to the respondent, attaching thereto a copy of the complaint,
affidavits and other supporting documents giving said respondent ten (10) days from
receipt within which to submit counter-affidavits and other supporting documents.
The respondent shall have the right to examine all other evidence submitted by the
complainant.
(b) Such counter-affidavits and other supporting evidence submitted by the
respondent shall be furnished by him to the complainant.
(c) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit
counter-affidavits within the ten-day period, the investigating officer shall base
his resolution on the evidence presented by the complainant.
(d) If the investigating officer believes that there are matters to be clarified, he may
set a hearing to propound clarificatory questions to the parties or their witnesses,
during which the parties shall be afforded an opportunity to be present but without the
right to examine or cross-examine. If the parties so desire, they may submit questions
to the investigating officer which the latter may propound to the parties or witnesses
concerned.
(e) Thereafter, the investigation shall be deemed concluded, and the investigating
officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus
adduced, the investigating officer shall determine whether or not there is sufficient
ground to hold the respondent for trial.
SEC. 7 Presumption of Existence of Probable Cause. A complaint initiated motu
proprio by the Commission is presumed to be based on sufficient probable cause and
the investigating officer must forthwith issue the subpoena mentioned in the
immediately preceding section.
SEC. 8. Duty of Investigating Officer. - The preliminary investigation must be
terminated within twenty (20) days after receipt of the counter-affidavits and other
evidence of the respondents, and resolution thereof shall be made within five (5) days
thereafter.
(a) If the investigating officer finds no cause to hold the respondent for trial, he
shall recommend dismissal of the complaint.
(b) If the investigating officer finds cause to hold the respondent for trial, he shall
prepare the resolution, and the corresponding information wherein he shall certify
under oath that he has examined the complainant and his witnesses, that there
is reasonable ground to believe that a crime has been committed and that accused was
informed of the complaint and of the evidence submitted against him and that he was
given an opportunity to submit controverting evidence.
(c) In either case, the investigating officer shall, within five(5) days from the
rendition of his recommendation, forward the records of the case to
1) The director of the Law Department of the Commission in cases investigated by
any of the Commission lawyers or field personnel and
2) The State Prosecutor, Provincial Fiscal or City Fiscal, as the case may be, pursuant
to the continuing authority provided for in Section 2 of this Rule.
SEC. 9. Duty of the Law Department, State Prosecutor, Provincial or City Fiscal
Upon Receipt of Records. - (a) Within ten (10) days from receipt of the records stated
in paragraph (c) of the immediately preceding section, the State Prosecutor, Provincial
or City Fiscal shall take appropriate action thereon, immediately informing the parties
of said action.
(b) In case investigated by the lawyers or the field personnel of the Commission, the
director of the Law Department shall review and evaluate the recommendation of the
said legal officer, prepare a report and make a recommendation to the Commission
affirming, modifying or reversing the same which shall be included in the agenda of
the succeeding meeting en banc of the Commission. If the Commission approves the
filing of an information in court against the respondent/s, the Director of the Law
Department shall prepare and sign the information for immediate filing with
appropriate court.
(c) In all other cases, if the recommendation to dismiss or the resolution to file the
case in court is approved by State Prosecutor, Provincial or City Fiscal, they shall
likewise approve the Information prepared and immediately cause its filing with the
proper court.
(d) If the recommendation to dismiss is reversed on the ground that a probable cause
exists, the State Prosecutor, or the Provincial or City Fiscal, may, by himself prepare
and file the corresponding information against the respondent or direct any of his
assistants to do so without conducting another preliminary investigation.
x x x x x x x x x [Emphasis ours].
The Comelec, whenever any election offense charge is filed before it, must have
first, before dismissing the same or filing the corresponding information, conducted the
preliminary investigation proper of the case. At this initial stage of criminal prosecution,
the primordial task of the Comelec is the determination of probable cause, i.e., whether
or not there is reason to believe that the accused is guilty of the offense charged and,
therefore, whether or not he should be subjected to the expense, rigors and
embarrassment of trial
[40]
or as the Comelec Rules of the Procedure phrase it, whether or
not there is reasonable ground to believe that a crime has been committed"
[41]

The determination of probable cause in any criminal prosecution, is made
indispensable by the Bill of Rights which enshrines every citizens right to due process,
the presumption that he is presumed innocent, and the inadmissibility against him of
any damaging evidence obtained in violation of his right against self-incrimination. As
Justice Reynanto S. Puno has pointed out, probable cause is neither an opaque
concept in our jurisdiction
[42]
or a high level legal abstraction to be the subject of warring
thoughts
[43]
It constitutes those facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been committed
[44]
by the
person sought to be judicially indicted. In determining probable cause, however, the
public prosecutor must have been apprised by the complainant of his evidence in
support of his accusatory allegations. In other words, determining probable cause is an
intellectual activity premised on the prior physical presentation or submission of
documentary or testimonial proofs either confirming, negating or qualifying the
allegations in the complaint.
It follows, therefore, that in the instant case, petitioner Kilosbayan must have
necessarily tendered evidence, independent of and in support of the allegations in its
letter-complaint, of such quality as to engender belief in an ordinarily prudent and
cautious man that the offense charged therein has been committed by herein
respondents. Indeed probable cause need not be based on clear and convincing
evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of guilt
[45]
, but it certainly
demands more than bare suspicion
[46]
and can never be left to presupposition,
conjuncture, or even convincing logic.
[47]
The effort of petitioner Kilosbayan, thus, in
order to successfully lead to the judicial indictment of respondents, should have gone
beyond a largely declamatory condemnation of respondents and diligently focused on
its two-fold obligation of not only substantiating its charges against respondents but also
proffering before the Comelec substantial evidence of respondents utilization, through
conspiratorial, cooperative and/or interrelated acts, of Seventy Million Pesos from CDF
for electioneering activities in violation of its pertinent provision on election offenses as
enumerated in the Omnibus Election Code.
In the dispensation of this obligation, however Kilosbayan utterly failed. The
encompassing narration of the pertinent facts and circumstances of this case in the
early part of this ponenciaindubitably shows the complacency, at the least, and the
gross and deliberate negligence, at most, of petitioner Kilosbayan in presenting
sufficient evidence in support of its letter-complaint.
To salvage its position, however, petitioner Kilosbayan denies the existence, under
the 1987 Constitution, of any obligation on its part to present any evidence of its
accusations against respondents in its letter-complaint. Petitioner Kilosbayan asserts
that it is the obligation of the Comelec to search for the evidence needed to judicially
indict respondents because it is the agency empowered to investigate and prosecute
cases involving election offenses; that E.O. Case No. 93-193 should, at any rate, be
deemed one filed by the Comelec motu proprio, thus needing no evidence since
probable cause is such a case is presumed, petitioner Kilosbayan having only
requested for an investigation and the Comelec having proceeded to in fact hold the
investigation, as requested by petitioner Kilosbayan; and that the Comelec should
already be grateful to petitioner Kilosbayan for the latters private efforts at exposing
respondents illegal election activities.
Kilosbayans position is not tenable.
Indeed, Kilosbayan truly deserves commendation for its continued vigilance against
any and all forms of government corruption that cost this country not only the funds
gravely needed to afford each Filipino a decent and honorable life, but also the moral
resolve to unite with each other and resist and eradicate the growing culture of greed,
abuse of power and blatant disregard for basic human dignity and social responsibility.
But it must guard against arrogance in trumpeting its causes, if not recklessness in its
advocacy.
The claim of petitioner Kilosbayan that it is merely the informant and not the
private complainant with the burden to prove probable cause, borders on the
ridiculous. Kilosbayan filed before the Comelec a letter-complaint dated December 14,
1993 in support of which documentary evidences like copies of Teodoro Benignos
newspaper articles on the SHOs use of PYHSDFI-obtained CDF, of respondent
Enriquezs testimony before the Commission on Appointments, of DILG Budget Officer
Baratas testimony before the Senate Finance Committee, and of Norberto Gonzales
affidavit, were likewise submitted by petitioner. The letter-complaint not being verified, it
is not disputed that petitioner Kilosbayan subsequently caused its verification; when
later asked to give the names of the other John Does in its letter-complaint, petitioner
Kilosbayan obliged with a list, under oath, of additional respondents. Petitioner
Kilosbayan initiated the complaint against herein respondents, hence the docketing
thereof as E.O. Case No. 93193; it filed numerous pleadings before the Comelec as a
private complainant in E.O. Case No. 93-193; its proceeded in the case in accordance
with the Comelec Rules of Procedure pertinent to the prosecution of cases of election
offenses. After all, the Kilosbayan should have presented evidence and not proceeded
and relied on mere conjecture and hearsay evidence.
The contention of petitioner Kilosbayan that it is the Comelec that is duty-bound to
search for evidence to prove its letter-complaint is downright erroneous. The task of
the Comelec as investigator and prosecutor, acting upon any election offenses
complaint, is not the physical searching and gathering of proof in support of a complaint
for an alleged commission of an election offense. A complainant, who in effect accuses
another person of having committed an act constituting an election offense, has the
burden, as it is his responsibility, to follow through his accusation and prove his
complaint. If the complainant fails to proffer the necessary evidence to show probable
cause, notwithstanding the lack of denial or any evidence in controversion, of the
accusation, the complaint must be dismissed, since any person accused of a crime is
presumed innocent and does not at all have to make a response or reaction to charges
against him.
The Comelec, is acting upon an election offense complaint in the course of
preliminary investigation, initially facilitates the confrontation process between the
complainant and the respondents by requiring the submission of and interfacing, their
respective evidences. Ultimately, the Comelec passes upon the contending parties'
respective submissions and proof and weighs the fact and circumstances established
therefrom. Contrary to the asseveration of petitioner Kilosbayan, the preliminary
investigation is not an occasion for Comelec to, as a duty, spoonfeed the complainant
with evidence needed to prove its case.
Finally, we cannot avoid the point out that no novel legal theory can distract even an
ordinary layman from the plain dearth of evidence of respondents culpability on the
record.
There is no proof of the electioneering activities alleged by petitioner Kilosbayan to
have been perpetrated by PYHSDFI during the May 11,1992 elections. Petitioner
claims the PYHSDFI distributed medical kits and sports equipment to several youth
groups in certain Metro Manila barangays for purposes of influencing their vote during
the May 11, 1992 elections. Petitioner, however, vaguely states the places where, the
dates when, the particular candidate for whose cause, and the general description of
the people for whose consumption, the distribution of election propaganda materials
was undertaken. In fact, there is no proof that the medical kits and sports equipment
were election propaganda materials. This is not surprising for there is the barest
evidence that this distribution had taken place at all.
There is no proof that PYHSDFI used its cash allocations as an accredited non-
governmental organization in order to undertake electioneering activities. Petitioner
likewise did not present proof that said distribution of medical kits and sports equipment
was for purposes of influencing the votes of certain groups of people during the May 11,
1992 elections. Brushing aside these fatal evidentiary lapses, petitioner insists that
PYHSDFI is guilty of using public funds for electioneering purposes simply because it
received its CDF allocation within a time frame suspiciously so near the May 11, 1992
elections. This CDF allocation, however, has been convincingly shown to be a legal
disbursement of public funds. Significantly, PYHSDFI neither presented rebuttal
evidence nor even attempted to argue against the presumption of regular performance
of official duty on the part of respondents like Franklin Drilon, Cesar Sarino, and
Salvador Enriquez who were then acting in their official capacity as heads of their
respective departments.
It may even be conceded that petitioner tells a credible story, it being too much of
coincidence for there to be, on the one hand, rumors of electioneering activities on the
part of PYHSDFI and on the other, genuine cash allotments showing disbursement of
public funds to the latter so coincidentally close to the May, 1992 elections. However,
no matter how believable a story may be, no matter how possible it could really have
been that PYHSDFI was financial conduit for criminal elements working for the interest
of a particular candidate in the 1992 elections, criminal charges cannot ever be
sanctioned by mere possibilities or coffee shop rumors.
In other words, said cash allocations appear to be evidence of perhaps, a thousand
hypothetical, though, possible scenarios. But, they are evidence of only one fact: that a
certain amount of public money was made available to PYHSDFI as it is rightfully
entitled thereto as an accredited non-governmental organization at around the same
time that the synchronized elections of 1992 were to be held. But this one fact is
certainly no justification to indict herein respondents for election offenses imputed to
them.
Lastly, there is no proof that respondents conspired to have PYHSDFI accredited as
non-government organization in order to avail itself of public funds to spend for
electioneering purposes. In order for there to be reasonable ground to believe that a
conspiracy exists among (1) the government officials who set up the mechanism for the
accrediting NGOs to implement the project under the CDF and to qualify the latter to
receive CDF allocations; (2) the incorporators and officers of the PYHSDFI; and (3) the
SHO implicated by Teodoro Benigno in his newspaper articles in alleged electioneering
activities during the May 11, 1992 elections, there must be a semblance of evidence
linking them to each other. There is none, however, except for hearsay evidence
consisting of the aforementioned newspaper articles. Suffice it is say that although only
a low quantum and quanlity of evidence is needed to support a finding of probable
cause
[48]
, the same cannot be justified upon hearsay evidence that is never given any
evidentiary or probative value in this jurisdiction.
Incidentally, we note that although made party respondents in this case, Benito
Catindig and Manuel Calupitan III were not officially made respondents in E.O. Case
No. 93-193 and accordingly not served with subpoena at any time during the pendency
of said case before the Comelec. There is no ground, therefore, to implead Benito
Catindig and Manuel Calupitan III in the instant case.
WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is hereby
DISMISSED, without any pronouncement as to costs.
SO ORDERED.
Narvasa, C.J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, and Torres, JJ., concur.
Davide, Jr., J., in the result.
Regalado, and Francisco, JJ., on leave.
Romero, J., took no part due to personal reasons.
Puno, and Panganiban, JJ., took no part due to relationship to one of the parties.



[1]
Reproduced in the Comment of respondent Franklin Drilon dated April 11, 1997. P. 3.
[2]
Dated April 24, 1992; signed by Benito R. Catindig, President of PYHSDFI, anf Tiburcio A. Relucio,
Regional Director, DILG-NCR; acknowledged before Atty. Nestor Beltran. Notary Public; Rollo, pp. 139-
142.
[3]
Special Audit Report dated November 15, 1993, p. 4; Rollo, p. 170.
[4]
Ibid.
[5]
Special Audit Report dated November 15, 1993, p. 4; Rollo, P. 170.
[6]
Id., p. 11; Rollo, p. 177.
[7]
Id., p. 3; Rollo, p. 169.
[8]
Id., p. 3; Rollo, p. 169
[9]
Id., p. 5; Rollo, p. 171.
[10]
Id., p. 12; Rollo, p. 178.
[11]
Memorandum of Agreement dated April 24, 1992, p. 2; Rollo, p. 140.
[12]
Alleged on p. 5 of the Counter Affidavit of respondent Salvador Enriquez dated May 10, 1994,
presented before Comelec.
[13]
Special Audit Report dated November 15, 1993, p. 10; Rollo, p. 176.
[14]
Letter Dated December 14, 1993, p. 1; Rollo, p.131
[15]
Ibid.
[16]
Letter, supra, p.2. Rollo, p.132.
[17]
Minutes of the Meeting of the Comelec En Banc on December 14, 1993, Rollo, p. 133; Minute
Resolution No. 94-0286 dated January 27, 1994.
[18]
In a letter dated June 25, 1996 addressed to Jovito Salonga, President of Kilosbayan, Teodoro
Benigno stated:
I know you and Kilosbayan are engaged in a non-partisan crusade for clean and free election xxx. Xx I
would like to help your crusade by telling the truth matter which are within my personal knowledge,
particularly in connection with my own fight against the appointment of Mr. Ronnie Puno as head of
Broadcast City. I may add that in my judgement, President Corazon C. Aquino had nothing to do with the
Sulo Hotel Operation (SHO), which I exposed in my columns in the Philippine Star. x x x; Rollo, p. 164.
[19]
Excerpt from Minutes of the Regular Meeting of the Comelec En Banc on March 29, 1994; Rollo, p.
134.
[20]
Ibid.
[21]
Annex 1 of Comment of respondents Puno, Catindig, Cancio, Mendoza, Calupitan and Durante dated
February 20,1995.
[22]
Annexes 2 and 3, supra.
[23]
Annex A of Comment of respondent Vicente Carlos dated April 15, 1997.
[24]
Annex 3 of Comment of respondents Puno, Catindig, Cancio, Mendoza, Calupitan and Durante dated
February 20, 1995.
[25]
Annex 4, supra.
[26]
Order dated June 30, 1994, Annex 7 of the Comment of respondents Puno, Catindig, Cancio,
Mendoza, Calupitan and Durante dated February 20, 1995.
[27]
Annexes 9 and 10, supra.
[28]
Unanimous resolution of the Commission En Banc penned by Commissioner Maambong, dated
October 18, 1994, Annex 14 of the Comment of respondents Puno, Catindig, Cancio, Mendoza,
Calupitan and Durante dated February 20, 1995.
[29]
Excerpt from Minutes of Regular En Banc Meeting of the Comelec held on February 9, 1995; Rollo, pp.
91 and 94.
[30]
Letter dated September 12, 1995; Rollo, p. 145.
[31]
Rollo, pp. 143-144.
[32]
Synopsis of the Case prepared and submitted by Reny C. Ables of the Comelec Law
Department: Rollo, p. 97.
[33]
Dated April 3, 1996; Rollo, pp. 98-115.
[34]
In Re: E.O. Case No. 93-193 (Study) dated April 3, 1996, pp. 8-16; Rollo, pp. 105-118.
[35]
Excerpt from the Minutes of the Regular En Banc Meeting of the Comelec; Rollo p. 114.
[36]
Comelec Resolution dated January 20, 1997, pp. 2-14; Rollo, pp.117-129.
[37]
Corpus v. Tanodbayan, 149 SCRA 281, 283 (1987); De Jesus v People, 120 SCRA 760, 765-766
(1983).
[38]
People v. Delgado, 189 SCRA 715,721 (1990).
[39]
People v. Inting, 187 SCRA 788, 794 (1990).
[40]
People v. Inting, 187 SCRA 788, 793 (1990).
[41]
Section 8 (b), Rule 34, Comelec Rules of Procedure.
[42]
Webb v. De Leon, 247 SCRA 652, 668 (1995).
[43]
Dissenting Opinion of Justice Reynanto S. Puno in Roberts, Jr. v. Court of Appeals. 254 SCRA
307,353 (1996).
[44]
Webb v. De Leon, supra.
[45]
Id., at 676.
[46]
Ibid. [Cf: Brinegar v. United States, 338 US 160 (149)]
[47]
Roberts Jr. v. Court of Appeals, 254 SCRA 307, 341 (1996).
[48]
Webb v. De Leon, 247 SCRA 653, 676 (1995).
EN BANC
[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., DR. EDEN C. DIAZ, ROMEO F.
ZAPANTA, ARCADIO S. DE VERA and THE COMMISSION ON
ELECTIONS, respondents.
D E C I S I O N
SANDOVAL-GUTIERREZ, J .:
This is a petition for certiorari
[1]
seeking the nullification of Resolution No. 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.
On April 21, 1998, petitioners Antonio 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. Abalos, Jr., Dr. Eden C. Diaz, Romeo Zapanta and Arcadio de Vera for vote
buying in violation of Section 261, paragraphs (a), (b) and (j) of the Omnibus Election Code
(OEC), in relation to Section 28 of Republic Act 6646 and Section 68 of the OEC. The
complaint, docketed as E.O. Case No. 98-110,
[2]
alleged that:
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 elections, conspiring with
respondents Dr. Eden C. Diaz, Schools Division Superintendent, Romeo F. Zapanta,
Assistant Schools Division Superintendent, and Arcadio de Vera, President,
Mandaluyong Federation of Public School Teachers, sponsored, arranged and
conducted an all-expense-free transportation, food and drinks affair for the
Mandaluyong City public school teachers, registered voters of said city, at the
Tayabas Bay Beach Resort, Sariaya, Quezon Province.
2. Among the identified public school teachers present, brought in around twelve (12)
buses, were Corazon Mayoya, Principal of Highway Hills Elementary School, her
Assistant Principal and Mr. Dante del Remigio; Mrs. Diaz, Principal of Mandaluyong
City High School and Mr. Alvia; Mrs. Parillo, Andres Bonifacio Elementary School;
Mrs. Gregoria Ignacio, Principal of Doa Pilar Gonzaga Elementary School and Mrs.
Bolantes; Mrs. Diaz, Principal, Nueve de Febrero Elementary School; Ms. Magsalin,
Principal of Mandaluyong Science High School and Mrs. Rita Bondayril; Mrs. De
Vera, 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 Elementary School; Mrs. Teresita Vicencio,
Mandaluyong City Elementary School; Officers of the Mandaluyong Federation of
Public School Teachers namely: Mrs. Erlinda Ilagan, Treasurer; Ms. Nancy de Leon,
Auditor; Ms. 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.
3. During the whole-day affair, the background music loudly and repeatedly played
over the sound system was the political jingle advertisement of Mandaluyong City
candidate for Mayor, Benjamin Benhur Abalos, Jr., sang to the tune of the song
SHA LALA LALA.
4. Some of the participants wore T-shirts with the name of candidate Benhur"
Abalos, Jr.," printed in over-sized colored letters.
5. Mayor Benjamin Abalos, Sr. delivered a speech wherein he offered and promised
the Mandaluyong City public school teachers and employees a hazard pay of
P1,000.00, and increasing their allowances from P1,500.00 to P2,000.00 for food, or
with a total of P3,000.00 which they will get by the end of the month.
6. The offers and promises to said public school teachers, who are members of the
Board of Election Inspectors of Mandaluyong City and registered voters thereat, were
made a few weeks before the election to induce or unduly influence the said teachers
and the public in general (the other guests) to vote for the candidacy of Benjamin
"Benhur" Abalos, Jr..
7. The offers and promises of Mayor Abalos, Sr., and the enthusiastic acceptance of
said monetary increase of allowances by the public school 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]

The Director
[4]
of the Law Department of the COMELEC conducted a preliminary
investigation. All the private respondents filed separate counter-affidavits
[5]
with prayer to
dismiss the complaint.
On November 26, 1998, the Director of the Law Department submitted his findings to the
COMELEC En Banc recommending that the complaint be dismissed for insufficiency of
evidence.
On December 1, 1998, the COMELEC En Banc issued the assailed Resolution No. 98-
3208
[6]
dismissing the complaint "for insufficiency of evidence to establish a prima facie case,"
Considering that this complaint, being criminal in nature, must have all its
allegations supported by direct, strong, convincing and indubitable evidence; and that
the submitted evidence of the complainant are mere self-serving statements and
uncorroborated audio and visual recordings and a photograph; and considering further
that the evidence of the respondents 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 the respondents.
[7]

On February 09, 1999, petitioners, without first submitting a motion for reconsideration,
filed the instant petition with this Court.
They alleged therein that the COMELEC En Banc, in issuing Resolution No. 98-3208 dated
December 1, 1998, acted "with apparent grave abuse of discretion."
[8]

The petition must fail.
Petitioners did not exhaust all the remedies available to them at the COMELEC
level. Specifically, they did not seek a reconsideration of the assailed COMELEC En
Banc Resolution as required by Section 1, Rule 13 of the 1993 COMELEC Rules of Procedure,
thus:
Section 1. What Pleadings are not Allowed. The following pleadings are not
allowed:
x x x
d) motion for reconsideration of an en banc ruling, resolution, order or
decision except in election offense cases;
x x x. (Emphasis ours)
It is not disputed that petitioners complaint before the COMELEC involves an election
offense. But in this petition, they conveniently kept silent why they directly elevated to this
Court the questioned Resolution without first filing a motion for reconsideration with the
COMELEC En Banc. It was only after the respondents had filed their comment on the petition
and called this Courts attention to petitioners' failure to comply with Section 1 of Rule 13 that
they, in their Consolidated Reply, advanced the excuse that they "deemed it best not seek any
further dilatory motion for reconsideration', even if allowed by Sec. 1 (d) of COMELEC
Rule 13."
[9]

Petitioners' failure to file the required motion for reconsideration utterly disregarded
the COMELEC Rules intended "to achieve
an orderly, just, expeditious and inexpensive determination and disposition of every action and
proceeding brought before the Commission."
[10]

Contrary to petitioners' statement that a resort to a motion for reconsideration is "dilatory," it
bears stressing that the purpose of the said motion is to give the COMELEC an opportunity to
correct the error imputed to it.
[11]
If the error 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 correct a patently erroneous act, then it commits a grave abuse of discretion justifying
a recourse by the aggrieved party to a petition for certiorari.
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 voters 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.
x x x. (Emphasis ours)
Petitioners' complaint expressly states that no supporting affidavits were submitted by the
complaining witnesses
[14]
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.
Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Pardo, Ynares-Santiago, De Leon, Jr., and Carpio, JJ., concur.
Buena, J., on official leave.



[1]
Filed under Rule 65 of the 1997 Rules of Civil Procedure, as amended.
[2]
Rollo, p. 37.
[3]
Criminal Complaint, ibid., pp. 38-40.
[4]
Mr. Jose P. Balbuena.
[5]
Annexes C, D, E and F, Petition, ibid., pp. 49-66.
[6]
Annex A, ibid., pp. 29-35.
[7]
Rollo, p. 34.
[8]
Ibid., p. 23.
[9]
Consolidated Reply, ibid., p. 191.
[10]
Section 3, Rule 1, 1993 COMELEC Rules of Procedure.
[11]
Feria and Noche, Civil Procedure Annotated, Vol. 2, 2001 edition, p. 472, citing D.C. Crystal, Inc. vs. Laya, 170
SCRA 734 (1989); Pure Foods Corporation vs. NLRC, 171 SCRA 415 (1989); Amante vs. Sison and Manzanero, 60
Phil. 949, 951 (1934).
[12]
Section 1, Rule 65, 1997 Rules of Civil Procedure, as amended.
[13]
Sunshine Transportation, Inc. vs. NLRC, 254 SCRA 51 (1996).
[14]
See petitioners' cover letter of the complaint (Annex "B", Petition), Rollo, p. 36.