Table of Contents

Brillantes v. Yorac 2
Cayetano v. Monsod 3
Gallardo v. Tabamo 30
Librado v. Cesar
ITF v. Comelec .. 86
LDP v. Comelec et. Al. .. 34
Santos v. Comelec and Assistion 41
Mendoza v. Comelec .. 44
Jamil v. Comelec . 51
Bernardo v. Abalos .. 60
Banaga v. Comelec 63
Reyes v. RTC Mindoro .. 67
Garces v. CA 70
Chavez v. Comelec .. 72
Salva v. Macalintal ..
Bulaong v. Comelec 76
Sahali et al v. Comelec .. 80

EN BANC
[G.R. No. 93867 : December 18, 1990.]
192 SCRA 358
SIXTO S. BRILLANTES, JR., Petitioner, vs. HAYDEE B. YORAC, in her capacity as ACTING CHAIRPERSON of
the COMMISSION ON ELECTIONS, Respondent.

DECISION

CRUZ, J.:

The petitioner is challenging the designation by the President of the Philippines of Associate Commissioner Haydee B.
Yorac as Acting Chairman of the Commission on Elections, in place of Chairman Hilario B. Davide, who had been
named chairman of the fact-finding commission to investigate the December 1989 coup d' etat attempt.
The qualifications of the respondent are conceded by the petitioner and are not in issue in this case. What is the
power of the President of the Philippines to make the challenged designation in view of the status of the Commission
on Elections as an independent constitutional body and the specific provision of Article IX-C, Section 1(2) of the
Constitution that "(I)n no case shall any Member (of the Commission on Elections) be appointed or designated in a
temporary or acting capacity."
The petitioner invokes the case of Nacionalista Party v. Bautista, 85 Phil. 101, where President Elpidio Quirino
designated the Solicitor General as acting member of the Commission on Elections and the Court revoked the
designation as contrary to the Constitution. It is also alleged that the respondent is not even the senior member of the
Commission on Elections, being outranked by Associate Commissioner Alfredo E. Abueg, Jr.:-cralaw
The petitioner contends that the choice of the Acting Chairman of the Commission on Elections is an internal matter
that should be resolved by the members themselves and that the intrusion of the President of the Philippines violates
their independence. He cites the practice in this Court, where the senior Associate Justice serves as Acting Chief
Justice in the absence of the Chief Justice. No designation from the President of the Philippines is necessary.
In his Comment, the Solicitor General argues that no such designation is necessary in the case of the Supreme Court
because the temporary succession cited is provided for in Section 12 of the Judiciary Act of 1948. A similar rule is
found in Section 5 of BP 129 for the Court of Appeals. There is no such arrangement, however, in the case of the
Commission on Elections. The designation made by the President of the Philippines should therefore be sustained for
reasons of "administrative expediency," to prevent disruption of the functions of the COMELEC.
Expediency is a dubious justification. It may also be an overstatement to suggest that the operations of the
Commission on Elections would have been disturbed or stalemated if the President of the Philippines had not stepped
in and designated an Acting Chairman. There did not seem to be any such problem. In any event, even assuming that
difficulty, we do not agree that "only the President (could) act to fill the hiatus," as the Solicitor General maintains.
Article IX-A, Section 1, of the Constitution expressly describes all the Constitutional Commissions as "independent."
Although essentially executive in nature, they are not under the control of the President of the Philippines in the
discharge of their respective functions. Each of these Commissions conducts its own proceedings under the applicable
laws and its own rules and in the exercise of its own discretion. Its decisions, orders and rulings are subject only to
review on Certiorari by this Court as provided by the Constitution in Article IX-A, Section 7.
The choice of a temporary chairman in the absence of the regular chairman comes under that discretion. That
discretion cannot be exercised for it, even with its consent, by the President of the Philippines.
A designation as Acting Chairman is by its very terms essentially temporary and therefore revocable at will. No cause
need be established to justify its revocation. Assuming its validity, the designation of the respondent as Acting
Chairman of the Commission on Elections may be withdrawn by the President of the Philippines at any time and for
whatever reason she sees fit. It is doubtful if the respondent, having accepted such designation, will not be estopped
from challenging its withdrawal.chanrobles virtual law library
It is true, as the Solicitor General points out, that the respondent cannot be removed at will from her permanent
position as Associate Commissioner. It is no less true, however, that she can be replaced as Acting Chairman, with or
without cause, and thus deprived of the powers and perquisites of that temporary position.
The lack of a statutory rule covering the situation at bar is no justification for the President of the Philippines to fill the
void by extending the temporary designation in favor of the respondent. This is still a government of laws and not of

men. The problem allegedly sought to be corrected, if it existed at all, did not call for presidential action. The situation
could have been handled by the members of the Commission on Elections themselves without the participation of the
President, however well-meaning.
In the choice of the Acting Chairman, the members of the Commission on Elections would most likely have been
guided by the seniority rule as they themselves would have appreciated it. In any event, that choice and the basis
thereof were for them and not the President to make.
The Court has not the slightest doubt that the President of the Philippines was moved only by the best of motives
when she issued the challenged designation. But while conceding her goodwill, we cannot sustain her act because it
conflicts with the Constitution. Hence, even as this Court revoked the designation in the Bautista case, so too must it
annul the designation in the case at bar.
The Constitution provides for many safeguards to the independence of the Commission on Elections, foremost among
which is the security of tenure of its members. That guaranty is not available to the respondent as Acting Chairman of
the Commission on Elections by designation of the President of the Philippines.
WHEREFORE, the designation by the President of the Philippines of respondent Haydee B. Yorac as Acting Chairman of
the Commission on Elections is declared UNCONSTITUTIONAL, and the respondent is hereby ordered to desist from
serving as such. This is without prejudice to the incumbent Associate Commissioners of the Commission on Elections
restoring her to the same position if they so desire, or choosing another member in her place, pending the
appointment of a permanent Chairman by the President of the Philippines with the consent of the Commission on
Appointments.: rd
SO ORDERED.
G.R. No. 100113 September 3, 1991
RENATO CAYETANO, petitioner,
vs.
CHRISTIAN MONSOD, HON. JOVITO R. SALONGA, COMMISSION ON APPOINTMENT, and HON. GUILLERMO CARAGUE, in
his capacity as Secretary of Budget and Management, respondents.
Renato L. Cayetano for and in his own behalf.
Sabina E. Acut, Jr. and Mylene Garcia-Albano co-counsel for petitioner.

PARAS, J.:p
We are faced here with a controversy of far-reaching proportions. While ostensibly only legal issues are involved, the Court's decision in
this case would indubitably have a profound effect on the political aspect of our national existence.
The 1987 Constitution provides in Section 1 (1), Article IX-C:
There shall be a Commission on Elections composed of a Chairman and six Commissioners who shall be naturalborn citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age, holders of a
college degree, and must not have been candidates for any elective position in the immediately preceding -elections.
However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged
in the practice of law for at least ten years. (Emphasis supplied)
The aforequoted provision is patterned after Section l(l), Article XII-C of the 1973 Constitution which similarly provides:
There shall be an independent Commission on Elections composed of a Chairman and eight Commissioners who shall be natural-born
citizens of the Philippines and, at the time of their appointment, at least thirty-five years of age and holders of a college degree.
However, a majority thereof, including the Chairman, shall be members of the Philippine Bar who have been engaged in the practice of
law for at least ten years.' (Emphasis supplied)
Regrettably, however, there seems to be no jurisprudence as to what constitutes practice of law as a legal qualification to an appointive
office.
Black defines "practice of law" as:

The rendition of services requiring the knowledge and the application of legal principles and technique to serve the
interest of another with his consent. It is not limited to appearing in court, or advising and assisting in the conduct of
litigation, but embraces the preparation of pleadings, and other papers incident to actions and special proceedings,
conveyancing, the preparation of legal instruments of all kinds, and the giving of all legal advice to clients. It
embraces all advice to clients and all actions taken for them in matters connected with the law. An attorney engages
in the practice of law by maintaining an office where he is held out to be-an attorney, using a letterhead describing
himself as an attorney, counseling clients in legal matters, negotiating with opposing counsel about pending litigation,
and fixing and collecting fees for services rendered by his associate. (Black's Law Dictionary, 3rd ed.)
The practice of law is not limited to the conduct of cases in court. (Land Title Abstract and Trust Co. v. Dworken,129 Ohio St. 23, 193
N.E. 650) A person is also considered to be in the practice of law when he:
... for valuable consideration engages in the business of advising person, firms, associations or corporations as to
their rights under the law, or appears in a representative capacity as an advocate in proceedings pending or
prospective, before any court, commissioner, referee, board, body, committee, or commission constituted by law or
authorized to settle controversies and there, in such representative capacity performs any act or acts for the purpose
of obtaining or defending the rights of their clients under the law. Otherwise stated, one who, in a representative
capacity, engages in the business of advising clients as to their rights under the law, or while so engaged performs
any act or acts either in court or outside of court for that purpose, is engaged in the practice of law. (State ex. rel.
Mckittrick v..C.S. Dudley and Co., 102 S.W. 2d 895, 340 Mo. 852)
This Court in the case of Philippine Lawyers Association v.Agrava, (105 Phil. 173,176-177) stated:
The practice of law is not limited to the conduct of cases or litigation in court; it embraces the preparation of pleadings
and other papers incident to actions and special proceedings, the management of such actions and proceedings on
behalf of clients before judges and courts, and in addition, conveying. In general, all advice to clients, and all action
taken for them in mattersconnected with the law incorporation services, assessment and condemnation services
contemplating an appearance before a judicial body, the foreclosure of a mortgage, enforcement of a creditor's claim
in bankruptcy and insolvency proceedings, and conducting proceedings in attachment, and in matters of estate and
guardianship have been held to constitute law practice, as do the preparation and drafting of legal instruments, where
the work done involves the determination by the trained legal mind of the legal effect of facts and conditions. (5 Am.
Jr. p. 262, 263). (Emphasis supplied)
Practice of law under modem conditions consists in no small part of work performed outside of any court and having
no immediate relation to proceedings in court. It embraces conveyancing, the giving of legal advice on a large variety
of subjects, and the preparation and execution of legal instruments covering an extensive field of business and trust
relations and other affairs. Although these transactions may have no direct connection with court proceedings, they
are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide
experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These
customary functions of an attorney or counselor at law bear an intimate relation to the administration of justice by the
courts. No valid distinction, so far as concerns the question set forth in the order, can be drawn between that part of
the work of the lawyer which involves appearance in court and that part which involves advice and drafting of
instruments in his office. It is of importance to the welfare of the public that these manifold customary functions be
performed by persons possessed of adequate learning and skill, of sound moral character, and acting at all times
under the heavy trust obligations to clients which rests upon all attorneys. (Moran, Comments on the Rules of Court,
Vol. 3 [1953 ed.] , p. 665-666, citing In re Opinion of the Justices [Mass.], 194 N.E. 313, quoted in Rhode Is. Bar
Assoc. v. Automobile Service Assoc. [R.I.] 179 A. 139,144). (Emphasis ours)
The University of the Philippines Law Center in conducting orientation briefing for new lawyers (1974-1975) listed the dimensions of the
practice of law in even broader terms as advocacy, counselling and public service.
One may be a practicing attorney in following any line of employment in the profession. If what he does exacts
knowledge of the law and is of a kind usual for attorneys engaging in the active practice of their profession, and he
follows some one or more lines of employment such as this he is a practicing attorney at law within the meaning of
the statute. (Barr v. Cardell, 155 NW 312)
Practice of law means any activity, in or out of court, which requires the application of law, legal procedure, knowledge, training and
experience. "To engage in the practice of law is to perform those acts which are characteristics of the profession. Generally, to practice
law is to give notice or render any kind of service, which device or service requires the use in any degree of legal knowledge or skill."
(111 ALR 23)
The following records of the 1986 Constitutional Commission show that it has adopted a liberal interpretation of the term "practice of
law."

MR. FOZ. Before we suspend the session, may I make a manifestation which I forgot to do during
our review of the provisions on the Commission on Audit. May I be allowed to make a very brief
statement?
THE PRESIDING OFFICER (Mr. Jamir).
The Commissioner will please proceed.
MR. FOZ. This has to do with the qualifications of the members of the Commission on Audit.
Among others, the qualifications provided for by Section I is that "They must be Members of the
Philippine Bar" I am quoting from the provision "who have been engaged in the practice of
law for at least ten years".
To avoid any misunderstanding which would result in excluding members of the Bar who are now employed in the
COA or Commission on Audit, we would like to make the clarification that this provision on qualifications regarding
members of the Bar does not necessarily refer or involve actual practice of law outside the COA We have to interpret
this to mean that as long as the lawyers who are employed in the COA are using their legal knowledge or legal talent
in their respective work within COA, then they are qualified to be considered for appointment as members or
commissioners, even chairman, of the Commission on Audit.
This has been discussed by the Committee on Constitutional Commissions and Agencies and we deem it important
to take it up on the floor so that this interpretation may be made available whenever this provision on the
qualifications as regards members of the Philippine Bar engaging in the practice of law for at least ten years is taken
up.
MR. OPLE. Will Commissioner Foz yield to just one question.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Is he, in effect, saying that service in the COA by a lawyer is equivalent to the
requirement of a law practice that is set forth in the Article on the Commission on Audit?
MR. FOZ. We must consider the fact that the work of COA, although it is auditing, will necessarily
involve legal work; it will involve legal work. And, therefore, lawyers who are employed in COA now
would have the necessary qualifications in accordance with the Provision on qualifications under
our provisions on the Commission on Audit. And, therefore, the answer is yes.
MR. OPLE. Yes. So that the construction given to this is that this is equivalent to the practice of
law.
MR. FOZ. Yes, Mr. Presiding Officer.
MR. OPLE. Thank you.
... ( Emphasis supplied)
Section 1(1), Article IX-D of the 1987 Constitution, provides, among others, that the Chairman and two Commissioners of the
Commission on Audit (COA) should either be certified public accountants with not less than ten years of auditing practice, or members
of the Philippine Bar who have been engaged in the practice of law for at least ten years. (emphasis supplied)
Corollary to this is the term "private practitioner" and which is in many ways synonymous with the word "lawyer." Today, although many
lawyers do not engage in private practice, it is still a fact that the majority of lawyers are private practitioners. (Gary
Munneke, Opportunities in Law Careers [VGM Career Horizons: Illinois], [1986], p. 15).
At this point, it might be helpful to define private practice. The term, as commonly understood, means "an individual or organization
engaged in the business of delivering legal services." (Ibid.). Lawyers who practice alone are often called "sole practitioners." Groups of
lawyers are called "firms." The firm is usually a partnership and members of the firm are the partners. Some firms may be organized as
professional corporations and the members called shareholders. In either case, the members of the firm are the experienced attorneys.
In most firms, there are younger or more inexperienced salaried attorneyscalled "associates." (Ibid.).

The test that defines law practice by looking to traditional areas of law practice is essentially tautologous, unhelpful defining the practice
of law as that which lawyers do. (Charles W. Wolfram, Modern Legal Ethics [West Publishing Co.: Minnesota, 1986], p. 593). The
practice of law is defined as the performance of any acts . . . in or out of court, commonly understood to be the practice of law. (State
Bar Ass'n v. Connecticut Bank & Trust Co., 145 Conn. 222, 140 A.2d 863, 870 [1958] [quoting Grievance Comm. v. Payne, 128 Conn.
325, 22 A.2d 623, 626 [1941]). Because lawyers perform almost every function known in the commercial and governmental realm, such
a definition would obviously be too global to be workable.(Wolfram, op. cit.).
The appearance of a lawyer in litigation in behalf of a client is at once the most publicly familiar role for lawyers as well as an
uncommon role for the average lawyer. Most lawyers spend little time in courtrooms, and a large percentage spend their entire practice
without litigating a case. (Ibid., p. 593). Nonetheless, many lawyers do continue to litigate and the litigating lawyer's role colors much of
both the public image and the self perception of the legal profession. (Ibid.).
In this regard thus, the dominance of litigation in the public mind reflects history, not reality. (Ibid.). Why is this so? Recall that the late
Alexander SyCip, a corporate lawyer, once articulated on the importance of a lawyer as a business counselor in this wise: "Even today,
there are still uninformed laymen whose concept of an attorney is one who principally tries cases before the courts. The members of the
bench and bar and the informed laymen such as businessmen, know that in most developed societies today, substantially more legal
work is transacted in law offices than in the courtrooms. General practitioners of law who do both litigation and non-litigation work also
know that in most cases they find themselves spending more time doing what [is] loosely desccribe[d] as business counseling than in
trying cases. The business lawyer has been described as the planner, the diagnostician and the trial lawyer, the surgeon. I[t] need not
[be] stress[ed] that in law, as in medicine, surgery should be avoided where internal medicine can be effective." (Business Star,
"Corporate Finance Law," Jan. 11, 1989, p. 4).
In the course of a working day the average general practitioner wig engage in a number of legal tasks, each involving different legal
doctrines, legal skills, legal processes, legal institutions, clients, and other interested parties. Even the increasing numbers of lawyers in
specialized practice wig usually perform at least some legal services outside their specialty. And even within a narrow specialty such as
tax practice, a lawyer will shift from one legal task or role such as advice-giving to an importantly different one such as representing a
client before an administrative agency. (Wolfram, supra, p. 687).
By no means will most of this work involve litigation, unless the lawyer is one of the relatively rare types a litigator who specializes in
this work to the exclusion of much else. Instead, the work will require the lawyer to have mastered the full range of traditional lawyer
skills of client counselling, advice-giving, document drafting, and negotiation. And increasingly lawyers find that the new skills of
evaluation and mediation are both effective for many clients and a source of employment. (Ibid.).
Most lawyers will engage in non-litigation legal work or in litigation work that is constrained in very important ways, at least theoretically,
so as to remove from it some of the salient features of adversarial litigation. Of these special roles, the most prominent is that of
prosecutor. In some lawyers' work the constraints are imposed both by the nature of the client and by the way in which the lawyer is
organized into a social unit to perform that work. The most common of these roles are those of corporate practice and government legal
service. (Ibid.).
In several issues of the Business Star, a business daily, herein below quoted are emerging trends in corporate law practice, a departure
from the traditional concept of practice of law.
We are experiencing today what truly may be called a revolutionary transformation in corporate law practice. Lawyers
and other professional groups, in particular those members participating in various legal-policy decisional contexts,
are finding that understanding the major emerging trends in corporation law is indispensable to intelligent decisionmaking.
Constructive adjustment to major corporate problems of today requires an accurate understanding of the nature and
implications of the corporate law research function accompanied by an accelerating rate of information accumulation.
The recognition of the need for such improved corporate legal policy formulation, particularly "model-making" and
"contingency planning," has impressed upon us the inadequacy of traditional procedures in many decisional contexts.
In a complex legal problem the mass of information to be processed, the sorting and weighing of significant
conditional factors, the appraisal of major trends, the necessity of estimating the consequences of given courses of
action, and the need for fast decision and response in situations of acute danger have prompted the use of
sophisticated concepts of information flow theory, operational analysis, automatic data processing, and electronic
computing equipment. Understandably, an improved decisional structure must stress the predictive component of the
policy-making process, wherein a "model", of the decisional context or a segment thereof is developed to test
projected alternative courses of action in terms of futuristic effects flowing therefrom.
Although members of the legal profession are regularly engaged in predicting and projecting the trends of the law, the
subject of corporate finance law has received relatively little organized and formalized attention in the philosophy of

advancing corporate legal education. Nonetheless, a cross-disciplinary approach to legal research has become a vital
necessity.
Certainly, the general orientation for productive contributions by those trained primarily in the law can be improved
through an early introduction to multi-variable decisional context and the various approaches for handling such
problems. Lawyers, particularly with either a master's or doctorate degree in business administration or management,
functioning at the legal policy level of decision-making now have some appreciation for the concepts and analytical
techniques of other professions which are currently engaged in similar types of complex decision-making.
Truth to tell, many situations involving corporate finance problems would require the services of an astute attorney
because of the complex legal implications that arise from each and every necessary step in securing and maintaining
the business issue raised. (Business Star, "Corporate Finance Law," Jan. 11, 1989, p. 4).
In our litigation-prone country, a corporate lawyer is assiduously referred to as the "abogado de campanilla." He is the
"big-time" lawyer, earning big money and with a clientele composed of the tycoons and magnates of business and
industry.
Despite the growing number of corporate lawyers, many people could not explain what it is that a corporate lawyer
does. For one, the number of attorneys employed by a single corporation will vary with the size and type of the
corporation. Many smaller and some large corporations farm out all their legal problems to private law firms. Many
others have in-house counsel only for certain matters. Other corporation have a staff large enough to handle most
legal problems in-house.
A corporate lawyer, for all intents and purposes, is a lawyer who handles the legal affairs of a corporation. His areas
of concern or jurisdiction may include, inter alia: corporate legal research, tax laws research, acting out as corporate
secretary (in board meetings), appearances in both courts and other adjudicatory agencies (including the Securities
and Exchange Commission), and in other capacities which require an ability to deal with the law.
At any rate, a corporate lawyer may assume responsibilities other than the legal affairs of the business of the
corporation he is representing. These include such matters as determining policy and becoming involved in
management. ( Emphasis supplied.)
In a big company, for example, one may have a feeling of being isolated from the action, or not understanding how
one's work actually fits into the work of the orgarnization. This can be frustrating to someone who needs to see the
results of his work first hand. In short, a corporate lawyer is sometimes offered this fortune to be more closely
involved in the running of the business.
Moreover, a corporate lawyer's services may sometimes be engaged by a multinational corporation (MNC). Some
large MNCs provide one of the few opportunities available to corporate lawyers to enter the international law field.
After all, international law is practiced in a relatively small number of companies and law firms. Because working in a
foreign country is perceived by many as glamorous, tills is an area coveted by corporate lawyers. In most cases,
however, the overseas jobs go to experienced attorneys while the younger attorneys do their "international practice"
in law libraries. (Business Star, "Corporate Law Practice," May 25,1990, p. 4).
This brings us to the inevitable, i.e., the role of the lawyer in the realm of finance. To borrow the lines of Harvardeducated lawyer Bruce Wassertein, to wit: "A bad lawyer is one who fails to spot problems, a good lawyer is one who
perceives the difficulties, and the excellent lawyer is one who surmounts them." (Business Star, "Corporate Finance
Law," Jan. 11, 1989, p. 4).
Today, the study of corporate law practice direly needs a "shot in the arm," so to speak. No longer are we talking of
the traditional law teaching method of confining the subject study to the Corporation Code and the Securities Code
but an incursion as well into the intertwining modern management issues.
Such corporate legal management issues deal primarily with three (3) types of learning: (1) acquisition of insights into
current advances which are of particular significance to the corporate counsel; (2) an introduction to usable
disciplinary skins applicable to a corporate counsel's management responsibilities; and (3) a devotion to the
organization and management of the legal function itself.
These three subject areas may be thought of as intersecting circles, with a shared area linking them. Otherwise
known as "intersecting managerial jurisprudence," it forms a unifying theme for the corporate counsel's total learning.

Some current advances in behavior and policy sciences affect the counsel's role. For that matter, the corporate
lawyer reviews the globalization process, including the resulting strategic repositioning that the firms he provides
counsel for are required to make, and the need to think about a corporation's; strategy at multiple levels. The salience
of the nation-state is being reduced as firms deal both with global multinational entities and simultaneously with subnational governmental units. Firms increasingly collaborate not only with public entities but with each other often
with those who are competitors in other arenas.
Also, the nature of the lawyer's participation in decision-making within the corporation is rapidly changing. The
modem corporate lawyer has gained a new role as a stakeholder in some cases participating in the organization
and operations of governance through participation on boards and other decision-making roles. Often these new
patterns develop alongside existing legal institutions and laws are perceived as barriers. These trends are
complicated as corporations organize for global operations. ( Emphasis supplied)
The practising lawyer of today is familiar as well with governmental policies toward the promotion and management of
technology. New collaborative arrangements for promoting specific technologies or competitiveness more generally
require approaches from industry that differ from older, more adversarial relationships and traditional forms of seeking
to influence governmental policies. And there are lessons to be learned from other countries. In
Europe, Esprit, Eureka and Race are examples of collaborative efforts between governmental and business
Japan's MITI is world famous. (Emphasis supplied)
Following the concept of boundary spanning, the office of the Corporate Counsel comprises a distinct group within
the managerial structure of all kinds of organizations. Effectiveness of both long-term and temporary groups within
organizations has been found to be related to indentifiable factors in the group-context interaction such as the groups
actively revising their knowledge of the environment coordinating work with outsiders, promoting team achievements
within the organization. In general, such external activities are better predictors of team performance than internal
group processes.
In a crisis situation, the legal managerial capabilities of the corporate lawyer vis-a-vis the managerial mettle of
corporations are challenged. Current research is seeking ways both to anticipate effective managerial procedures
and to understand relationships of financial liability and insurance considerations. (Emphasis supplied)
Regarding the skills to apply by the corporate counsel, three factors are apropos:
First System Dynamics. The field of systems dynamics has been found an effective tool for new managerial thinking
regarding both planning and pressing immediate problems. An understanding of the role of feedback loops, inventory
levels, and rates of flow, enable users to simulate all sorts of systematic problems physical, economic, managerial,
social, and psychological. New programming techniques now make the system dynamics principles more accessible
to managers including corporate counsels. (Emphasis supplied)
Second Decision Analysis. This enables users to make better decisions involving complexity and uncertainty. In the
context of a law department, it can be used to appraise the settlement value of litigation, aid in negotiation settlement,
and minimize the cost and risk involved in managing a portfolio of cases. (Emphasis supplied)
Third Modeling for Negotiation Management. Computer-based models can be used directly by parties and mediators
in all lands of negotiations. All integrated set of such tools provide coherent and effective negotiation support,
including hands-on on instruction in these techniques. A simulation case of an international joint venture may be used
to illustrate the point.
[Be this as it may,] the organization and management of the legal function, concern three pointed areas of
consideration, thus:
Preventive Lawyering. Planning by lawyers requires special skills that comprise a major part of the general counsel's
responsibilities. They differ from those of remedial law. Preventive lawyering is concerned with minimizing the risks of
legal trouble and maximizing legal rights for such legal entities at that time when transactional or similar facts are
being considered and made.
Managerial Jurisprudence. This is the framework within which are undertaken those activities of the firm to which
legal consequences attach. It needs to be directly supportive of this nation's evolving economic and organizational
fabric as firms change to stay competitive in a global, interdependent environment. The practice and theory of "law" is
not adequate today to facilitate the relationships needed in trying to make a global economy work.

Organization and Functioning of the Corporate Counsel's Office. The general counsel has emerged in the last decade
as one of the most vibrant subsets of the legal profession. The corporate counsel hear responsibility for key aspects
of the firm's strategic issues, including structuring its global operations, managing improved relationships with an
increasingly diversified body of employees, managing expanded liability exposure, creating new and varied
interactions with public decision-makers, coping internally with more complex make or by decisions.
This whole exercise drives home the thesis that knowing corporate law is not enough to make one a good general
corporate counsel nor to give him a full sense of how the legal system shapes corporate activities. And even if the
corporate lawyer's aim is not the understand all of the law's effects on corporate activities, he must, at the very least,
also gain a working knowledge of the management issues if only to be able to grasp not only the basic legal
"constitution' or makeup of the modem corporation. "Business Star", "The Corporate Counsel," April 10, 1991, p. 4).
The challenge for lawyers (both of the bar and the bench) is to have more than a passing knowledge of financial law
affecting each aspect of their work. Yet, many would admit to ignorance of vast tracts of the financial law territory.
What transpires next is a dilemma of professional security: Will the lawyer admit ignorance and risk opprobrium?; or
will he feign understanding and risk exposure? (Business Star, "Corporate Finance law," Jan. 11, 1989, p. 4).
Respondent Christian Monsod was nominated by President Corazon C. Aquino to the position of Chairman of the COMELEC in a letter
received by the Secretariat of the Commission on Appointments on April 25, 1991. Petitioner opposed the nomination because
allegedly Monsod does not possess the required qualification of having been engaged in the practice of law for at least ten years.
On June 5, 1991, the Commission on Appointments confirmed the nomination of Monsod as Chairman of the COMELEC. On June 18,
1991, he took his oath of office. On the same day, he assumed office as Chairman of the COMELEC.
Challenging the validity of the confirmation by the Commission on Appointments of Monsod's nomination, petitioner as a citizen and
taxpayer, filed the instant petition for certiorari and Prohibition praying that said confirmation and the consequent appointment of
Monsod as Chairman of the Commission on Elections be declared null and void.
Atty. Christian Monsod is a member of the Philippine Bar, having passed the bar examinations of 1960 with a grade of 86-55%. He has
been a dues paying member of the Integrated Bar of the Philippines since its inception in 1972-73. He has also been paying his
professional license fees as lawyer for more than ten years. (p. 124, Rollo)
After graduating from the College of Law (U.P.) and having hurdled the bar, Atty. Monsod worked in the law office of his father. During
his stint in the World Bank Group (1963-1970), Monsod worked as an operations officer for about two years in Costa Rica and Panama,
which involved getting acquainted with the laws of member-countries negotiating loans and coordinating legal, economic, and project
work of the Bank. Upon returning to the Philippines in 1970, he worked with the Meralco Group, served as chief executive officer of an
investment bank and subsequently of a business conglomerate, and since 1986, has rendered services to various companies as a legal
and economic consultant or chief executive officer. As former Secretary-General (1986) and National Chairman (1987) of NAMFREL.
Monsod's work involved being knowledgeable in election law. He appeared for NAMFREL in its accreditation hearings before the
Comelec. In the field of advocacy, Monsod, in his personal capacity and as former Co-Chairman of the Bishops Businessmen's
Conference for Human Development, has worked with the under privileged sectors, such as the farmer and urban poor groups, in
initiating, lobbying for and engaging in affirmative action for the agrarian reform law and lately the urban land reform bill. Monsod also
made use of his legal knowledge as a member of the Davide Commission, a quast judicial body, which conducted numerous hearings
(1990) and as a member of the Constitutional Commission (1986-1987), and Chairman of its Committee on Accountability of Public
Officers, for which he was cited by the President of the Commission, Justice Cecilia Muoz-Palma for "innumerable amendments to
reconcile government functions with individual freedoms and public accountability and the party-list system for the House of
Representative. (pp. 128-129 Rollo) ( Emphasis supplied)
Just a word about the work of a negotiating team of which Atty. Monsod used to be a member.
In a loan agreement, for instance, a negotiating panel acts as a team, and which is adequately constituted to meet
the various contingencies that arise during a negotiation. Besides top officials of the Borrower concerned, there are
the legal officer (such as the legal counsel), the finance manager, and an operations officer (such as an official
involved in negotiating the contracts) who comprise the members of the team. (Guillermo V. Soliven, "Loan
Negotiating Strategies for Developing Country Borrowers," Staff Paper No. 2, Central Bank of the Philippines, Manila,
1982, p. 11). (Emphasis supplied)
After a fashion, the loan agreement is like a country's Constitution; it lays down the law as far as the loan transaction
is concerned. Thus, the meat of any Loan Agreement can be compartmentalized into five (5) fundamental parts: (1)
business terms; (2) borrower's representation; (3) conditions of closing; (4) covenants; and (5) events of default.
(Ibid., p. 13).

In the same vein, lawyers play an important role in any debt restructuring program. For aside from performing the
tasks of legislative drafting and legal advising, they score national development policies as key factors in maintaining
their countries' sovereignty. (Condensed from the work paper, entitled "Wanted: Development Lawyers for
Developing Nations," submitted by L. Michael Hager, regional legal adviser of the United States Agency for
International Development, during the Session on Law for the Development of Nations at the Abidjan World
Conference in Ivory Coast, sponsored by the World Peace Through Law Center on August 26-31, 1973). ( Emphasis
supplied)
Loan concessions and compromises, perhaps even more so than purely renegotiation policies, demand expertise in
the law of contracts, in legislation and agreement drafting and in renegotiation. Necessarily, a sovereign lawyer may
work with an international business specialist or an economist in the formulation of a model loan agreement. Debt
restructuring contract agreements contain such a mixture of technical language that they should be carefully drafted
and signed only with the advise of competent counsel in conjunction with the guidance of adequate technical support
personnel. (See International Law Aspects of the Philippine External Debts, an unpublished dissertation, U.S.T.
Graduate School of Law, 1987, p. 321). ( Emphasis supplied)
A critical aspect of sovereign debt restructuring/contract construction is the set of terms and conditions which
determines the contractual remedies for a failure to perform one or more elements of the contract. A good agreement
must not only define the responsibilities of both parties, but must also state the recourse open to either party when
the other fails to discharge an obligation. For a compleat debt restructuring represents a devotion to that principle
which in the ultimate analysis issine qua non for foreign loan agreements-an adherence to the rule of law in domestic
and international affairs of whose kind U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. once said: "They carry
no banners, they beat no drums; but where they are, men learn that bustle and bush are not the equal of quiet genius
and serene mastery." (See Ricardo J. Romulo, "The Role of Lawyers in Foreign Investments," Integrated Bar of the
Philippine Journal, Vol. 15, Nos. 3 and 4, Third and Fourth Quarters, 1977, p. 265).
Interpreted in the light of the various definitions of the term Practice of law". particularly the modern concept of law practice, and taking
into consideration the liberal construction intended by the framers of the Constitution, Atty. Monsod's past work experiences as a
lawyer-economist, a lawyer-manager, a lawyer-entrepreneur of industry, a lawyer-negotiator of contracts, and a lawyer-legislator of both
the rich and the poor verily more than satisfy the constitutional requirement that he has been engaged in the practice of law for at
least ten years.
Besides in the leading case of Luego v. Civil Service Commission, 143 SCRA 327, the Court said:
Appointment is an essentially discretionary power and must be performed by the officer in which it is vested
according to his best lights, the only condition being that the appointee should possess the qualifications required by
law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who
should have been preferred. This is a political question involving considerations of wisdom which only the appointing
authority can decide. (emphasis supplied)
No less emphatic was the Court in the case of (Central Bank v. Civil Service Commission, 171 SCRA 744) where it stated:
It is well-settled that when the appointee is qualified, as in this case, and all the other legal requirements are satisfied,
the Commission has no alternative but to attest to the appointment in accordance with the Civil Service Law. The
Commission has no authority to revoke an appointment on the ground that another person is more qualified for a
particular position. It also has no authority to direct the appointment of a substitute of its choice. To do so would be an
encroachment on the discretion vested upon the appointing authority. An appointment is essentially within the
discretionary power of whomsoever it is vested, subject to the only condition that the appointee should possess the
qualifications required by law. ( Emphasis supplied)
The appointing process in a regular appointment as in the case at bar, consists of four (4) stages: (1) nomination; (2) confirmation by
the Commission on Appointments; (3) issuance of a commission (in the Philippines, upon submission by the Commission on
Appointments of its certificate of confirmation, the President issues the permanent appointment; and (4) acceptance e.g., oath-taking,
posting of bond, etc. . . . (Lacson v. Romero, No. L-3081, October 14, 1949; Gonzales, Law on Public Officers, p. 200)
The power of the Commission on Appointments to give its consent to the nomination of Monsod as Chairman of the Commission on
Elections is mandated by Section 1(2) Sub-Article C, Article IX of the Constitution which provides:
The Chairman and the Commisioners shall be appointed by the President with the consent of the Commission on
Appointments for a term of seven years without reappointment. Of those first appointed, three Members shall hold
office for seven years, two Members for five years, and the last Members for three years, without reappointment.
Appointment to any vacancy shall be only for the unexpired term of the predecessor. In no case shall any Member be
appointed or designated in a temporary or acting capacity.

10

Anent Justice Teodoro Padilla's separate opinion, suffice it to say that his definition of the practice of law is the
traditional or stereotyped notion of law practice, as distinguished from the modern concept of the practice of law,
which modern connotation is exactly what was intended by the eminent framers of the 1987 Constitution. Moreover,
Justice Padilla's definition would require generally a habitual law practice, perhaps practised two or three times a
week and would outlaw say, law practice once or twice a year for ten consecutive years. Clearly, this is far from the
constitutional intent.
Upon the other hand, the separate opinion of Justice Isagani Cruz states that in my written opinion, I made use of a definition of law
practice which really means nothing because the definition says that law practice " . . . is what people ordinarily mean by the practice of
law." True I cited the definition but only by way of sarcasm as evident from my statement that the definition of law practice by "traditional
areas of law practice is essentially tautologous" or defining a phrase by means of the phrase itself that is being defined.
Justice Cruz goes on to say in substance that since the law covers almost all situations, most individuals, in making use of the law, or in
advising others on what the law means, are actually practicing law. In that sense, perhaps, but we should not lose sight of the fact that
Mr. Monsod is a lawyer, a member of the Philippine Bar, who has been practising law for over ten years. This is different from the acts
of persons practising law, without first becoming lawyers.
Justice Cruz also says that the Supreme Court can even disqualify an elected President of the Philippines, say, on the ground that he
lacks one or more qualifications. This matter, I greatly doubt. For one thing, how can an action or petition be brought against the
President? And even assuming that he is indeed disqualified, how can the action be entertained since he is the incumbent President?
We now proceed:
The Commission on the basis of evidence submitted doling the public hearings on Monsod's confirmation, implicitly determined that he
possessed the necessary qualifications as required by law. The judgment rendered by the Commission in the exercise of such an
acknowledged power is beyond judicial interference except only upon a clear showing of a grave abuse of discretion amounting to lack
or excess of jurisdiction. (Art. VIII, Sec. 1 Constitution). Thus, only where such grave abuse of discretion is clearly shown shall the Court
interfere with the Commission's judgment. In the instant case, there is no occasion for the exercise of the Court's corrective power,
since no abuse, much less a grave abuse of discretion, that would amount to lack or excess of jurisdiction and would warrant the
issuance of the writs prayed, for has been clearly shown.
Additionally, consider the following:
(1) If the Commission on Appointments rejects a nominee by the President, may the Supreme Court reverse the
Commission, and thus in effect confirm the appointment? Clearly, the answer is in the negative.
(2) In the same vein, may the Court reject the nominee, whom the Commission has confirmed? The answer is
likewise clear.
(3) If the United States Senate (which is the confirming body in the U.S. Congress) decides to confirma Presidential
nominee, it would be incredible that the U.S. Supreme Court would still reverse the U.S. Senate.
Finally, one significant legal maxim is:
We must interpret not by the letter that killeth, but by the spirit that giveth life.
Take this hypothetical case of Samson and Delilah. Once, the procurator of Judea asked Delilah (who was Samson's beloved) for help
in capturing Samson. Delilah agreed on condition that
No blade shall touch his skin;
No blood shall flow from his veins.
When Samson (his long hair cut by Delilah) was captured, the procurator placed an iron rod burning white-hot two or three inches away
from in front of Samson's eyes. This blinded the man. Upon hearing of what had happened to her beloved, Delilah was beside herself
with anger, and fuming with righteous fury, accused the procurator of reneging on his word. The procurator calmly replied: "Did any
blade touch his skin? Did any blood flow from his veins?" The procurator was clearly relying on the letter, not the spirit of the
agreement.
In view of the foregoing, this petition is hereby DISMISSED.

11

SO ORDERED.
Fernan, C.J., Grio-Aquino and Medialdea, JJ., concur.
Feliciano, J., I certify that he voted to dismiss the petition. (Fernan, C.J.)
Sarmiento, J., is on leave.
Regalado, and Davide, Jr., J., took no part.

Separate Opinions

NARVASA, J., concurring:

I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not appear to me that there has
been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of respondent
Monsod as Chairman of the Commission on Elections should, on the basis of his stated qualifications and after due assessment
thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently merits nullification by
this Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the petition.

PADILLA, J., dissenting:

The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to require the respondents
to comment on the Petition, but I was the sole vote for the issuance of a temporary restraining order to enjoin respondent Monsod from
assuming the position of COMELEC Chairman, while the Court deliberated on his constitutional qualification for the office. My purpose
in voting for a TRO was to prevent the inconvenience and even embarrassment to all parties concerned were the Court to finally decide
for respondent Monsod's disqualification. Moreover, a reading of the Petition then in relation to established jurisprudence already
showed prima facie that respondent Monsod did not possess the needed qualification, that is, he had not engaged in the practice of law
for at least ten (10) years prior to his appointment as COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional requirement of "practice of
law for at least ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core issue to be resolved in
this petition is the proper construal of the constitutional provision requiring a majority of the membership of COMELEC, including the
Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987 Constitution).
Questions involving the construction of constitutional provisions are best left to judicial resolution. As declared in Angara v. Electoral
Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of interpreting the
Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that he must have been
"engaged in the practice of law for at least ten (10) years." It is the bounden duty of this Court to ensure that such standard is met and
complied with.
What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or application of knowledge as
1
distinguished from mere possession of knowledge; it connotes an active, habitual,repeated or customary action. To "practice" law, or
any profession for that matter, means, to exercise or pursue an employment or profession actively, habitually,
repeatedly or customarily.

12

Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide, cannot be said to be in the
"practice of medicine." A certified public accountant who works as a clerk, cannot be said to practice his profession as an accountant. In
the same way, a lawyer who is employed as a business executive or a corporate manager, other than as head or attorney of a Legal
Department of a corporation or a governmental agency, cannot be said to be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva:

Practice is more than an isolated appearance for it consists in frequent or customary actions, a succession of acts of
the same kind. In other words, it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S.
768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding
one's self out to the public as a lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98
N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared, enumerated several factors
determinative of whether a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the public as a
lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends
a circular announcing the establishment of a law office for the general practice of law (U.S. v. Ney Bosque, 8 Phil.
146), or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the
Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil.
968).
Practice is more than an isolated appearance for it consists in frequent or customary action, a succession of acts of
the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner,
127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself to be in the active and continued
practice of the legal profession and that his professional services are available to the public for compensation, as a
service of his livelihood or in consideration of his said services. (People v. Villanueva, supra). Hence, charging for
services such as preparation of documents involving the use of legal knowledge and skill is within the term "practice
of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards
State Bank, 176 N.B. 901) and, one who renders an opinion as to the proper interpretation of a statute, and receives
pay for it, is to that extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290
N.Y.S. 462) If compensation is expected, all advice to clients and all action taken for them in matters connected with
the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which calls for legal knowledge, training and experience is
within the term "practice of law". (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-client relationship.
Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client
relationship, such as teaching law or writing law books or articles, he cannot be said to be engaged in the practice of
3
his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30).
The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent Monsod meets the
constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his
appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that if ever he did perform
any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to his appointment
as COMELEC Chairman.

13

While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the
practice of law, like the drafting of legal documents and the rendering of legal opinion or advice, such were isolated transactions or
activities which do not qualify his past endeavors as "practice of law." To become engaged in the practice of law, there must be
4
a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva:
Essentially, the word private practice of law implies that one must have presented himself to be in
theactive and continued practice of the legal profession and that his professional services are available to the public
for a compensation, as a source of his livelihood or in consideration of his said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of COMELEC
Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are certain points on which I
must differ with him while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination has
been confirmed by the Commission on Appointments. In my view, this is not a political question that we are barred from resolving.
Determination of the appointee's credentials is made on the basis of the established facts, not the discretion of that body. Even if it
were, the exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority tochoose between two
claimants to the same office who both possessed the required qualifications. It was that kind of discretion that we said could not be
reviewed.
If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications, I see no
reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that he has
been found acceptable by no less than the enfranchised citizenry. The reason is that what we would be examining is not the wisdom of
his election but whether or not he was qualified to be elected in the first place.
Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too sweeping in its definition of the
phrase "practice of law" as to render the qualification practically toothless. From the numerous activities accepted as embraced in the
term, I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as his
activities involve the application of some law, however peripherally. The stock broker and the insurance adjuster and the realtor could
come under the definition as they deal with or give advice on matters that are likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and applies
some law only as an incident of such business. That covers every company organized under the Corporation Code and regulated by
the SEC under P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that is not affected by some
law or government regulation the businessman must know about and observe. In fact, again going by the definition, a lawyer does not
even have to be part of a business concern to be considered a practitioner. He can be so deemed when, on his own, he rents a house
or buys a car or consults a doctor as these acts involve his knowledge and application of the laws regulating such transactions. If he
operates a public utility vehicle as his main source of livelihood, he would still be deemed engaged in the practice of law because he
must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the "performance of any acts ... in or out of court, commonly
understood to be the practice of law," which tells us absolutely nothing. The decision goes on to say that "because lawyers perform
almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be
workable."
The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if he
does not earn his living, or at least part of it, as a lawyer. It is enough that his activities are incidentally (even if only remotely) connected
with some law, ordinance, or regulation. The possible exception is the lawyer whose income is derived from teaching ballroom dancing
or escorting wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been engaged in the practice of law
for ten years as required by the Constitution. It is conceded that he has been engaged in business and finance, in which areas he has
distinguished himself, but as an executive and economist and not as a practicing lawyer. The plain fact is that he has occupied the
various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an attorney-at-law whose

14

principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he lobbied in Congress for agrarian
and urban reform, served in the NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and priests) and
was a member of the Davide Commission, he has not proved that his activities in these capacities extended over the prescribed 10year period of actual practice of the law. He is doubtless eminently qualified for many other positions worthy of his abundant talents but
not as Chairman of the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law as a qualification for public office would be settled one
way or another in fairly definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law (with one of these 5
leaving his vote behind while on official leave but not expressing his clear stand on the matter); 4 categorically stating that he did not
practice law; 2 voting in the result because there was no error so gross as to amount to grave abuse of discretion; one of official leave
with no instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the work of a constitutional Commission on Appointments
whose duty is precisely to look into the qualifications of persons appointed to high office. Even if the Commission errs, we have no
power to set aside error. We can look only into grave abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr.
Monsod possesses superior qualifications in terms of executive ability, proficiency in management, educational background, experience
in international banking and finance, and instant recognition by the public. His integrity and competence are not questioned by the
petitioner. What is before us is compliance with a specific requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the practice of law for even
one year. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not engaged in an activity
where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court and all
lower courts. What kind of Judges or Justices will we have if there main occupation is selling real estate, managing a business
corporation, serving in fact-finding committee, working in media, or operating a farm with no active involvement in the law, whether in
Government or private practice, except that in one joyful moment in the distant past, they happened to pass the bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice of words shows that the
practice envisioned is active and regular, not isolated, occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To
be "engaged" in an activity for ten years requires committed participation in something which is the result of one's decisive choice. It
means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with intent and attention during the
ten-year period.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments, the latter
has not been engaged in the practice of law for at least ten years. In fact, if appears that Mr. Monsod has never practiced law except for
an alleged one year period after passing the bar examinations when he worked in his father's law firm. Even then his law practice must
have been extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at the University of Pennsylvania
during that period. How could he practice law in the United States while not a member of the Bar there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania
2. 1963-1970: World Bank Group Economist, Industry Department; Operations, Latin American Department;
Division Chief, South Asia and Middle East, International Finance Corporation
3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities Corporation, Philippine
Petroleum Corporation, Philippine Electric Corporation
4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation and affiliated companies

15

5. 1976-1978: Finaciera Manila Chief Executive Officer

6. 1978-1986: Guevent Group of Companies Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt Member
9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation
e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the lawenough attention or a
certain degree of commitment and participation as would support in all sincerity and candor the claim of having engaged in its practice
for at least ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of
legal services, he was the oneadvice and those services as an executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use of
legal knowledge in various fields of endeavor such as commerce, industry, civic work, blue ribbon investigations, agrarian reform, etc.
where such knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as having a familiar and
customary well-defined meaning. Every resident of this country who has reached the age of discernment has to know, follow, or apply
the law at various times in his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor, barangay

16

captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And yet, can these people honestly
assert that as such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied with having been "a
member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with litigation but also services rendered out
of court, and it includes the giving of advice or the rendering of any services requiring the use of legal skill or
knowledge, such as preparing a will, contract or other instrument, the legal effect of which, under the facts and
conditions involved, must be carefully determined.People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d
693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases
cited.
It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice of law.
"Practicing law" has been defined as "Practicing as an attorney or counselor at law according to the laws and
customs of our courts, is the giving of advice or rendition of any sort of service by any person, firm or corporation
when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill."
Without adopting that definition, we referred to it as being substantially correct in People ex rel. Illinois State Bar
Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer, they
should also be performed, habitually, frequently or customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive. He was asked whether or not he ever
prepared contracts for the parties in real-estate transactions where he was not the procuring agent. He answered:
"Very seldom." In answer to the question as to how many times he had prepared contracts for the parties during the
twenty-one years of his business, he said: "I have no Idea." When asked if it would be more than half a dozen times
his answer was I suppose. Asked if he did not recall making the statement to several parties that he had prepared
contracts in a large number of instances, he answered: "I don't recall exactly what was said." When asked if he did
not remember saying that he had made a practice of preparing deeds, mortgages and contracts and charging a fee to
the parties therefor in instances where he was not the broker in the deal, he answered: "Well, I don't believe so, that
is not a practice." Pressed further for an answer as to his practice in preparing contracts and deeds for parties where
he was not the broker, he finally answered: "I have done about everything that is on the books as far as real estate is
concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work in
connection with real-estate transactions, especially in drawing of real-estate contracts, deeds, mortgages, notes and
the like. There is no doubt but that he has engaged in these practices over the years and has charged for his services
in that connection. ... (People v. Schafer, 87 N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or employed by another to act in his stead; an
agent; more especially, one of a class of persons authorized to appear and act for suitors or defendants in legal
proceedings. Strictly, these professional persons are attorneys at law, and non-professional agents are properly
styled "attorney's in fact;" but the single word is much used as meaning an attorney at law. A person may be an
attorney in facto for another, without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney
at law, says Webster, is an officer of a court of law, legally qualified to prosecute and defend actions in such court on
the retainerof clients. "The principal duties of an attorney are (1) to be true to the court and to his client; (2) to manage
the business of his client with care, skill, and integrity; (3) to keep his client informed as to the state of his business;
(4) to keep his secrets confided to him as such. ... His rights are to be justly compensated for his services." Bouv.
Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster, means 'to do or perform frequently,
customarily, or habitually; to perform by a succession of acts, as, to practice gaming, ... to carry on in practice, or
repeated action; to apply, as a theory, to real life; to exercise, as a profession, trade, art. etc.; as, to practice law or
medicine,' etc...." (State v. Bryan, S.E. 522, 523; Emphasis supplied)

17

In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we stated in the case of
People v. Villanueva (14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the same kind.
In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within
the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and
demanding payment for such services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of practice of
law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a lawyer
(People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a
circular announcing the establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8 Phil. 146),
or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme
Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of
the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1
27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx
While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the use of such legal
knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. Admission to the
practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup
Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a member may be likened to isolated
transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing business in the
Philippines. As in the practice of law, doing business also should be active and continuous. Isolated business transactions or
occasional, incidental and casual transactions are not within the context of doing business. This was our ruling in the case of Antam
Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may possess the background,
competence, integrity, and dedication, to qualify for such high offices as President, Vice-President, Senator, Congressman or Governor
but the Constitution in prescribing the specific qualification of having engaged in the practice of law for at least ten (10) years for the
position of COMELEC Chairman has ordered that he may not be confirmed for that office. The Constitution charges the public
respondents no less than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of
respondent Monsod as Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent

Separate Opinions
NARVASA, J., concurring:
I concur with the decision of the majority written by Mr. Justice Paras, albeit only in the result; it does not appear to me that there has
been an adequate showing that the challenged determination by the Commission on Appointments-that the appointment of respondent
Monsod as Chairman of the Commission on Elections should, on the basis of his stated qualifications and after due assessment
thereof, be confirmed-was attended by error so gross as to amount to grave abuse of discretion and consequently merits nullification by
this Court in accordance with the second paragraph of Section 1, Article VIII of the Constitution. I therefore vote to DENY the petition.
Melencio-Herrera, J., concur.

18

PADILLA, J., dissenting:

The records of this case will show that when the Court first deliberated on the Petition at bar, I voted not only to require the respondents
to comment on the Petition, but I was the sole vote for the issuance of a temporary restraining order to enjoin respondent Monsod from
assuming the position of COMELEC Chairman, while the Court deliberated on his constitutional qualification for the office. My purpose
in voting for a TRO was to prevent the inconvenience and even embarrassment to all parties concerned were the Court to finally decide
for respondent Monsod's disqualification. Moreover, a reading of the Petition then in relation to established jurisprudence already
showed prima facie that respondent Monsod did not possess the needed qualification, that is, he had not engaged in the practice of law
for at least ten (10) years prior to his appointment as COMELEC Chairman.
After considering carefully respondent Monsod's comment, I am even more convinced that the constitutional requirement of "practice of
law for at least ten (10) years" has not been met.
The procedural barriers interposed by respondents deserve scant consideration because, ultimately, the core issue to be resolved in
this petition is the proper construal of the constitutional provision requiring a majority of the membership of COMELEC, including the
Chairman thereof to "have been engaged in the practice of law for at least ten (10) years." (Art. IX(C), Section 1(1), 1987 Constitution).
Questions involving the construction of constitutional provisions are best left to judicial resolution. As declared in Angara v. Electoral
Commission, (63 Phil. 139) "upon the judicial department is thrown the solemn and inescapable obligation of interpreting the
Constitution and defining constitutional boundaries."
The Constitution has imposed clear and specific standards for a COMELEC Chairman. Among these are that he must have been
"engaged in the practice of law for at least ten (10) years." It is the bounden duty of this Court to ensure that such standard is met and
complied with.
What constitutes practice of law? As commonly understood, "practice" refers to the actual performance or application of knowledge as
1
distinguished from mere possession of knowledge; it connotes an active, habitual,repeated or customary action. To "practice" law, or
any profession for that matter, means, to exercise or pursue an employment or profession actively, habitually,
repeatedly or customarily.
Therefore, a doctor of medicine who is employed and is habitually performing the tasks of a nursing aide, cannot be said to be in the
"practice of medicine." A certified public accountant who works as a clerk, cannot be said to practice his profession as an accountant. In
the same way, a lawyer who is employed as a business executive or a corporate manager, other than as head or attorney of a Legal
Department of a corporation or a governmental agency, cannot be said to be in the practice of law.
As aptly held by this Court in the case of People vs. Villanueva:

Practice is more than an isolated appearance for it consists in frequent or customary actions, a succession of acts of
the same kind. In other words, it is frequent habitual exercise (State vs- Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S.
768). Practice of law to fall within the prohibition of statute has been interpreted as customarily or habitually holding
one's self out to the public as a lawyer and demanding payment for such services (State vs. Bryan, 4 S.E. 522, 98
N.C. 644,647.) ... (emphasis supplied).
It is worth mentioning that the respondent Commission on Appointments in a Memorandum it prepared, enumerated several factors
determinative of whether a particular activity constitutes "practice of law." It states:
1. Habituality. The term "practice of law" implies customarily or habitually holding one's self out to the public as a
lawyer (People vs. Villanueva, 14 SCRA 109 citing State v. Boyen, 4 S.E. 522, 98 N.C. 644) such as when one sends
a circular announcing the establishment of a law office for the general practice of law (U.S. v. Ney Bosque, 8 Phil.
146), or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the
Supreme Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil.
968).
Practice is more than an isolated appearance for it consists in frequent or customary action, a succession of acts of
the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 109 citing State v. Cotner,
127, p. 1, 87 Kan, 864).
2. Compensation. Practice of law implies that one must have presented himself to be in the active and continued
practice of the legal profession and that his professional services are available to the public for compensation, as a
service of his livelihood or in consideration of his said services. (People v. Villanueva, supra). Hence, charging for
services such as preparation of documents involving the use of legal knowledge and skill is within the term "practice
of law" (Ernani Pao, Bar Reviewer in Legal and Judicial Ethics, 1988 ed., p. 8 citing People v. People's Stockyards
State Bank, 176 N.B. 901) and, one who renders an opinion as to the proper interpretation of a statute, and receives

19

pay for it, is to that extent, practicing law (Martin, supra, p. 806 citing Mendelaun v. Gilbert and Barket Mfg. Co., 290
N.Y.S. 462) If compensation is expected, all advice to clients and all action taken for them in matters connected with
the law; are practicing law. (Elwood Fitchette et al., v. Arthur C. Taylor, 94A-L.R. 356-359)
3. Application of law legal principle practice or procedure which calls for legal knowledge, training and experience is
within the term "practice of law". (Martin supra)
4. Attorney-client relationship. Engaging in the practice of law presupposes the existence of lawyer-client relationship.
Hence, where a lawyer undertakes an activity which requires knowledge of law but involves no attorney-client
relationship, such as teaching law or writing law books or articles, he cannot be said to be engaged in the practice of
3
his profession or a lawyer (Agpalo, Legal Ethics, 1989 ed., p. 30).
The above-enumerated factors would, I believe, be useful aids in determining whether or not respondent Monsod meets the
constitutional qualification of practice of law for at least ten (10) years at the time of his appointment as COMELEC Chairman.
The following relevant questions may be asked:
1. Did respondent Monsod perform any of the tasks which are peculiar to the practice of law?
2. Did respondent perform such tasks customarily or habitually?
3. Assuming that he performed any of such tasks habitually, did he do so HABITUALLY FOR AT LEAST TEN (10) YEARS prior to his
appointment as COMELEC Chairman?
Given the employment or job history of respondent Monsod as appears from the records, I am persuaded that if ever he did perform
any of the tasks which constitute the practice of law, he did not do so HABITUALLY for at least ten (10) years prior to his appointment
as COMELEC Chairman.
While it may be granted that he performed tasks and activities which could be latitudinarianly considered activities peculiar to the
practice of law, like the drafting of legal documents and the rendering of legal opinion or advice, such were isolated transactions or
activities which do not qualify his past endeavors as "practice of law." To become engaged in the practice of law, there must be
4
a continuity, or a succession of acts. As observed by the Solicitor General in People vs. Villanueva:
Essentially, the word private practice of law implies that one must have presented himself to be in
theactive and continued practice of the legal profession and that his professional services are available to the public
for a compensation, as a source of his livelihood or in consideration of his said services.
ACCORDINGLY, my vote is to GRANT the petition and to declare respondent Monsod as not qualified for the position of COMELEC
Chairman for not having engaged in the practice of law for at least ten (10) years prior to his appointment to such position.
CRUZ, J., dissenting:
I am sincerely impressed by the ponencia of my brother Paras but find I must dissent just the same. There are certain points on which I
must differ with him while of course respecting hisviewpoint.
To begin with, I do not think we are inhibited from examining the qualifications of the respondent simply because his nomination has
been confirmed by the Commission on Appointments. In my view, this is not a political question that we are barred from resolving.
Determination of the appointee's credentials is made on the basis of the established facts, not the discretion of that body. Even if it
were, the exercise of that discretion would still be subject to our review.
In Luego, which is cited in the ponencia, what was involved was the discretion of the appointing authority tochoose between two
claimants to the same office who both possessed the required qualifications. It was that kind of discretion that we said could not be
reviewed.
If a person elected by no less than the sovereign people may be ousted by this Court for lack of the required qualifications, I see no
reason why we cannot disqualified an appointee simply because he has passed the Commission on Appointments.
Even the President of the Philippines may be declared ineligible by this Court in an appropriate proceeding notwithstanding that he has
been found acceptable by no less than the enfranchised citizenry. The reason is that what we would be examining is not the wisdom of
his election but whether or not he was qualified to be elected in the first place.

20

Coming now to the qualifications of the private respondent, I fear that the ponencia may have been too sweeping in its definition of the
phrase "practice of law" as to render the qualification practically toothless. From the numerous activities accepted as embraced in the
term, I have the uncomfortable feeling that one does not even have to be a lawyer to be engaged in the practice of law as long as his
activities involve the application of some law, however peripherally. The stock broker and the insurance adjuster and the realtor could
come under the definition as they deal with or give advice on matters that are likely "to become involved in litigation."
The lawyer is considered engaged in the practice of law even if his main occupation is another business and he interprets and applies
some law only as an incident of such business. That covers every company organized under the Corporation Code and regulated by
the SEC under P.D. 902-A. Considering the ramifications of the modern society, there is hardly any activity that is not affected by some
law or government regulation the businessman must know about and observe. In fact, again going by the definition, a lawyer does not
even have to be part of a business concern to be considered a practitioner. He can be so deemed when, on his own, he rents a house
or buys a car or consults a doctor as these acts involve his knowledge and application of the laws regulating such transactions. If he
operates a public utility vehicle as his main source of livelihood, he would still be deemed engaged in the practice of law because he
must obey the Public Service Act and the rules and regulations of the Energy Regulatory Board.
The ponencia quotes an American decision defining the practice of law as the "performance of any acts . . . in or out of court, commonly
understood to be the practice of law," which tells us absolutely nothing. The decision goes on to say that "because lawyers perform
almost every function known in the commercial and governmental realm, such a definition would obviously be too global to be
workable."
The effect of the definition given in the ponencia is to consider virtually every lawyer to be engaged in the practice of law even if he
does not earn his living, or at least part of it, as a lawyer. It is enough that his activities are incidentally (even if only remotely) connected
with some law, ordinance, or regulation. The possible exception is the lawyer whose income is derived from teaching ballroom dancing
or escorting wrinkled ladies with pubescent pretensions.
The respondent's credentials are impressive, to be sure, but they do not persuade me that he has been engaged in the practice of law
for ten years as required by the Constitution. It is conceded that he has been engaged in business and finance, in which areas he has
distinguished himself, but as an executive and economist and not as a practicing lawyer. The plain fact is that he has occupied the
various positions listed in his resume by virtue of his experience and prestige as a businessman and not as an attorney-at-law whose
principal attention is focused on the law. Even if it be argued that he was acting as a lawyer when he lobbied in Congress for agrarian
and urban reform, served in the NAMFREL and the Constitutional Commission (together with non-lawyers like farmers and priests) and
was a member of the Davide Commission, he has not proved that his activities in these capacities extended over the prescribed 10year period of actual practice of the law. He is doubtless eminently qualified for many other positions worthy of his abundant talents but
not as Chairman of the Commission on Elections.
I have much admiration for respondent Monsod, no less than for Mr. Justice Paras, but I must regretfully vote to grant the petition.
GUTIERREZ, JR., J., dissenting:
When this petition was filed, there was hope that engaging in the practice of law as a qualification for public office would be settled one
way or another in fairly definitive terms. Unfortunately, this was not the result.
Of the fourteen (14) member Court, 5 are of the view that Mr. Christian Monsod engaged in the practice of law (with one of these 5
leaving his vote behind while on official leave but not expressing his clear stand on the matter); 4 categorically stating that he did not
practice law; 2 voting in the result because there was no error so gross as to amount to grave abuse of discretion; one of official leave
with no instructions left behind on how he viewed the issue; and 2 not taking part in the deliberations and the decision.
There are two key factors that make our task difficult. First is our reviewing the work of a constitutional Commission on Appointments
whose duty is precisely to look into the qualifications of persons appointed to high office. Even if the Commission errs, we have no
power to set aside error. We can look only into grave abuse of discretion or whimsically and arbitrariness. Second is our belief that Mr.
Monsod possesses superior qualifications in terms of executive ability, proficiency in management, educational background, experience
in international banking and finance, and instant recognition by the public. His integrity and competence are not questioned by the
petitioner. What is before us is compliance with a specific requirement written into the Constitution.
Inspite of my high regard for Mr. Monsod, I cannot shirk my constitutional duty. He has never engaged in the practice of law for even
one year. He is a member of the bar but to say that he has practiced law is stretching the term beyond rational limits.
A person may have passed the bar examinations. But if he has not dedicated his life to the law, if he has not engaged in an activity
where membership in the bar is a requirement I fail to see how he can claim to have been engaged in the practice of law.
Engaging in the practice of law is a qualification not only for COMELEC chairman but also for appointment to the Supreme Court and all
lower courts. What kind of Judges or Justices will we have if there main occupation is selling real estate, managing a business

21

corporation, serving in fact-finding committee, working in media, or operating a farm with no active involvement in the law, whether in
Government or private practice, except that in one joyful moment in the distant past, they happened to pass the bar examinations?
The Constitution uses the phrase "engaged in the practice of law for at least ten years." The deliberate choice of words shows that the
practice envisioned is active and regular, not isolated, occasional, accidental, intermittent, incidental, seasonal, or extemporaneous. To
be "engaged" in an activity for ten years requires committed participation in something which is the result of one's decisive choice. It
means that one is occupied and involved in the enterprise; one is obliged or pledged to carry it out with intent and attention during the
ten-year period.
I agree with the petitioner that based on the bio-data submitted by respondent Monsod to the Commission on Appointments, the latter
has not been engaged in the practice of law for at least ten years. In fact, if appears that Mr. Monsod has never practiced law except for
an alleged one year period after passing the bar examinations when he worked in his father's law firm. Even then his law practice must
have been extremely limited because he was also working for M.A. and Ph. D. degrees in Economics at the University of Pennsylvania
during that period. How could he practice law in the United States while not a member of the Bar there?
The professional life of the respondent follows:
1.15.1. Respondent Monsod's activities since his passing the Bar examinations in 1961 consist of the following:
1. 1961-1963: M.A. in Economics (Ph. D. candidate), University of Pennsylvania
2. 1963-1970: World Bank Group Economist, Industry Department; Operations, Latin American Department;
Division Chief, South Asia and Middle East, International Finance Corporation
3. 1970-1973: Meralco Group Executive of various companies, i.e., Meralco Securities Corporation, Philippine
Petroleum Corporation, Philippine Electric Corporation
4. 1973-1976: Yujuico Group President, Fil-Capital Development Corporation and affiliated companies
5. 1976-1978: Finaciera Manila Chief Executive Officer
6. 1978-1986: Guevent Group of Companies Chief Executive Officer
7. 1986-1987: Philippine Constitutional Commission Member
8. 1989-1991: The Fact-Finding Commission on the December 1989 Coup Attempt Member
9. Presently: Chairman of the Board and Chief Executive Officer of the following companies:
a. ACE Container Philippines, Inc.
b. Dataprep, Philippines
c. Philippine SUNsystems Products, Inc.
d. Semirara Coal Corporation
e. CBL Timber Corporation
Member of the Board of the Following:
a. Engineering Construction Corporation of the Philippines
b. First Philippine Energy Corporation
c. First Philippine Holdings Corporation
d. First Philippine Industrial Corporation

22

e. Graphic Atelier
f. Manila Electric Company
g. Philippine Commercial Capital, Inc.
h. Philippine Electric Corporation
i. Tarlac Reforestation and Environment Enterprises
j. Tolong Aquaculture Corporation
k. Visayan Aquaculture Corporation
l. Guimaras Aquaculture Corporation (Rollo, pp. 21-22)
There is nothing in the above bio-data which even remotely indicates that respondent Monsod has given the lawenough attention or a
certain degree of commitment and participation as would support in all sincerity and candor the claim of having engaged in its practice
for at least ten years. Instead of working as a lawyer, he has lawyers working for him. Instead of giving receiving that legal advice of
legal services, he was the oneadvice and those services as an executive but not as a lawyer.
The deliberations before the Commission on Appointments show an effort to equate "engaged in the practice of law" with the use of
legal knowledge in various fields of endeavor such as commerce, industry, civic work, blue ribbon investigations, agrarian reform, etc.
where such knowledge would be helpful.
I regret that I cannot join in playing fast and loose with a term, which even an ordinary layman accepts as having a familiar and
customary well-defined meaning. Every resident of this country who has reached the age of discernment has to know, follow, or apply
the law at various times in his life. Legal knowledge is useful if not necessary for the business executive, legislator, mayor, barangay
captain, teacher, policeman, farmer, fisherman, market vendor, and student to name only a few. And yet, can these people honestly
assert that as such, they are engaged in the practice of law?
The Constitution requires having been "engaged in the practice of law for at least ten years." It is not satisfied with having been "a
member of the Philippine bar for at least ten years."
Some American courts have defined the practice of law, as follows:
The practice of law involves not only appearance in court in connection with litigation but also services rendered out
of court, and it includes the giving of advice or the rendering of any services requiring the use of legal skill or
knowledge, such as preparing a will, contract or other instrument, the legal effect of which, under the facts and
conditions involved, must be carefully determined.People ex rel. Chicago Bar Ass'n v. Tinkoff, 399 Ill. 282, 77 N.E.2d
693; People ex rel. Illinois State Bar Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901, and cases
cited.
It would be difficult, if not impossible to lay down a formula or definition of what constitutes the practice of law.
"Practicing law" has been defined as "Practicing as an attorney or counselor at law according to the laws and
customs of our courts, is the giving of advice or rendition of any sort of service by any person, firm or corporation
when the giving of such advice or rendition of such service requires the use of any degree of legal knowledge or skill."
Without adopting that definition, we referred to it as being substantially correct in People ex rel. Illinois State Bar
Ass'n v. People's Stock Yards State Bank, 344 Ill. 462,176 N.E. 901. (People v. Schafer, 87 N.E. 2d 773, 776)
For one's actions to come within the purview of practice of law they should not only be activities peculiar to the work of a lawyer, they
should also be performed, habitually, frequently or customarily, to wit:
xxx xxx xxx
Respondent's answers to questions propounded to him were rather evasive. He was asked whether or not he ever
prepared contracts for the parties in real-estate transactions where he was not the procuring agent. He answered:
"Very seldom." In answer to the question as to how many times he had prepared contracts for the parties during the
twenty-one years of his business, he said: "I have no Idea." When asked if it would be more than half a dozen times
his answer was I suppose. Asked if he did not recall making the statement to several parties that he had prepared

23

contracts in a large number of instances, he answered: "I don't recall exactly what was said." When asked if he did
not remember saying that he had made a practice of preparing deeds, mortgages and contracts and charging a fee to
the parties therefor in instances where he was not the broker in the deal, he answered: "Well, I don't believe so, that
is not a practice." Pressed further for an answer as to his practice in preparing contracts and deeds for parties where
he was not the broker, he finally answered: "I have done about everything that is on the books as far as real estate is
concerned."
xxx xxx xxx
Respondent takes the position that because he is a real-estate broker he has a lawful right to do any legal work in
connection with real-estate transactions, especially in drawing of real-estate contracts, deeds, mortgages, notes and
the like. There is no doubt but that he has engaged in these practices over the years and has charged for his services
in that connection. ... (People v. Schafer, 87 N.E. 2d 773)
xxx xxx xxx
... An attorney, in the most general sense, is a person designated or employed by another to act in his stead; an
agent; more especially, one of a class of persons authorized to appear and act for suitors or defendants in legal
proceedings. Strictly, these professional persons are attorneys at law, and non-professional agents are properly
styled "attorney's in fact;" but the single word is much used as meaning an attorney at law. A person may be an
attorney in facto for another, without being an attorney at law. Abb. Law Dict. "Attorney." A public attorney, or attorney
at law, says Webster, is an officer of a court of law, legally qualified to prosecute and defend actions in such court on
the retainerof clients. "The principal duties of an attorney are (1) to be true to the court and to his client; (2) to manage
the business of his client with care, skill, and integrity; (3) to keep his client informed as to the state of his business;
(4) to keep his secrets confided to him as such. ... His rights are to be justly compensated for his services." Bouv.
Law Dict. tit. "Attorney." The transitive verb "practice," as defined by Webster, means 'to do or perform frequently,
customarily, or habitually; to perform by a succession of acts, as, to practice gaming, ... to carry on in practice, or
repeated action; to apply, as a theory, to real life; to exercise, as a profession, trade, art. etc.; as, to practice law or
medicine,' etc...." (State v. Bryan, S.E. 522, 523; Emphasis supplied)
In this jurisdiction, we have ruled that the practice of law denotes frequency or a succession of acts. Thus, we stated in the case of
People v. Villanueva (14 SCRA 109 [1965]):
xxx xxx xxx
... Practice is more than an isolated appearance, for it consists in frequent or customary actions, a succession of acts of the same kind.
In other words, it is frequent habitual exercise (State v. Cotner, 127, p. 1, 87 Kan. 864, 42 LRA, M.S. 768). Practice of law to fall within
the prohibition of statute has been interpreted as customarily or habitually holding one's self out to the public, as a lawyer and
demanding payment for such services. ... . (at p. 112)
It is to be noted that the Commission on Appointment itself recognizes habituality as a required component of the meaning of practice of
law in a Memorandum prepared and issued by it, to wit:
l. Habituality. The term 'practice of law' implies customarilyor habitually holding one's self out to the public as a lawyer
(People v. Villanueva, 14 SCRA 109 citing State v. Bryan, 4 S.E. 522, 98 N.C. 644) such as when one sends a
circular announcing the establishment of a law office for the general practice of law (U.S. v. Noy Bosque, 8 Phil. 146),
or when one takes the oath of office as a lawyer before a notary public, and files a manifestation with the Supreme
Court informing it of his intention to practice law in all courts in the country (People v. De Luna, 102 Phil. 968).
Practice is more than an isolated appearance, for it consists in frequent or customary action, a succession of acts of
the same kind. In other words, it is a habitual exercise (People v. Villanueva, 14 SCRA 1 09 citing State v. Cotner, 1
27, p. 1, 87 Kan, 864)." (Rollo, p. 115)
xxx xxx xxx
While the career as a businessman of respondent Monsod may have profited from his legal knowledge, the use of such legal
knowledge is incidental and consists of isolated activities which do not fall under the denomination of practice of law. Admission to the
practice of law was not required for membership in the Constitutional Commission or in the Fact-Finding Commission on the 1989 Coup
Attempt. Any specific legal activities which may have been assigned to Mr. Monsod while a member may be likened to isolated
transactions of foreign corporations in the Philippines which do not categorize the foreign corporations as doing business in the
Philippines. As in the practice of law, doing business also should be active and continuous. Isolated business transactions or

24

occasional, incidental and casual transactions are not within the context of doing business. This was our ruling in the case of Antam
Consolidated, Inc. v. Court of appeals, 143 SCRA 288 [1986]).
Respondent Monsod, corporate executive, civic leader, and member of the Constitutional Commission may possess the background,
competence, integrity, and dedication, to qualify for such high offices as President, Vice-President, Senator, Congressman or Governor
but the Constitution in prescribing the specific qualification of having engaged in the practice of law for at least ten (10) years for the
position of COMELEC Chairman has ordered that he may not be confirmed for that office. The Constitution charges the public
respondents no less than this Court to obey its mandate.
I, therefore, believe that the Commission on Appointments committed grave abuse of discretion in confirming the nomination of
respondent Monsod as Chairman of the COMELEC.
I vote to GRANT the petition.
Bidin, J., dissent
EN BANC

G.R. No. 104848 January 29, 1993

ANTONIO GALLARDO, ANTONIO AREVALO, CRESENCIO ECHAVES, EMMANUEL ARANAS, PALERMO SIA, RONNIE
RAMBUYON, PRIMO NAVARRO, and NOEL NAVARRO, petitioners,
vs.
HON. SINFOROSO V. TABAMO, JR., in his capacity as Presiding Judge of Branch 28 of the Regional Trial Court of Mambajao,
Camiguin, and PEDRO P. ROMUALDO, respondents.
Villarama & Cruz for petitioners.
Marciano LL. Aparte, Jr. for private respondents.

DAVIDE, JR., J.:

This is a petition for certiorari and prohibition under Rule 65 of the Revised Rules of Court. Petitioners would have Us prohibit, restrain
and enjoin public respondent Sinforoso V. Tabamo, Jr., Presiding Judge of Branch 28 of the Regional Trial Court (RTC) of Mambajao,
Camiguin, from continuing with the proceedings in a petition for injunction, prohibition and mandamus with a prayer for a writ of
preliminary injunction and restraining order filed as a taxpayer's suit, docketed therein as Special Civil Action No. 465 and entitled
"Pedro P. Romualdo, Jr. versus Gov. Antonio Gallardo, et al." Petitioners likewise seek to prohibit the enforcement of the Temporary
Restraining Order (TRO), issued by the respondent Judge on 10 April 1992, on the ground that the latter acted whimsically, capriciously
and without jurisdiction when he took cognizance of the case and issued the said order. It is the petitioners' thesis that the said case
principally involves an alleged violation of the provisions of the Omnibus Election Code the jurisdiction over which is exclusively vested
in the Commission on Elections (COMELEC). It is additionally averred that the action is completely baseless, that the private
respondent is not a real party in interest and that the public respondent acted with undue haste, manifest partiality and evident bias in
favor of the private respondent in issuing the TRO.
In Our Resolution of 20 April 1992, We required the respondents to comment on the petition and issued a Temporary Restraining Order
directing the respondent Judge to cease and desist from implementing and enforcing the challenged Order of 10 April 1922, and from
continuing with the proceedings in Special Civil Action No. 465.
At the time of the filing of both the special civil action and the instant petition, petitioner Antonio Gallardo was the incumbent Governor
of the Province of Camiguin and was seeking re-election in the 11 May 1992 synchronized elections. Petitioners Antonio Arevalo,
Cresencio Echaves, Emmanuel Aranas and Palermo Sia are the provincial treasurer, provincial auditor, provincial engineer and
provincial budget officer of Camiguin, respectively. Their co-petitioners Ronnie Rambuyon, Primo Navarro and Noel Navarro are all
government project laborers. On the other hand, the private respondent was the incumbent Congressman of the lone Congressional
District of Camiguin, a candidate for the same office in the said synchronized elections and the Regional Chairman of the Laban ng
Demokratikong Pilipino (LDP) in Region X.
The antecedents of this case are not complicated.

25

On 10 April 1992, private respondent filed his Petition (Special Civil Action No. 465) before the court a quo against petitioners
Gallardo, Arevalo, Echaves, Aranas and Sia to prohibit and restrain them from pursuing or prosecuting certain public works projects;
from releasing, disbursing and/or spending any public funds for such projects; and from issuing, using or availing of treasury warrants or
any device for the future delivery of money, goods and other things of value chargeable against public funds in connection with the said
projects as (1) said projects were undertaken in violation of the 45-day ban on public works imposed by the Omnibus Election Code
(Batas Pambansa Blg. 881) because although they were initiated a few days before 27 March 1992, the date the ban took effect, they
were not covered by detailed engineering plans, specifications or a program of work which are preconditions for the commencement of
any public works project; hence, they could not have been lawfully and validly undertaken; (2) the hiring of hundreds of laborers in the
different projects continues unabated in flagrant violation of paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code;
2
(3) the projects were undertaken in violation of the provisions of the Local Government Code governing the use and expenditure of the
twenty percent (20%) development fund of the Province of Camiguin; (4) these projects, which are "Locally-Funded", were pursued
without the requisite approval of the provincial budget by the Regional Office of Budget and Management as required by Section 326 of
the Local Government Code; (5) some of the projects which are "Foreign-Assisted" and funded by the Spanish Assistance for
Integrated Livelihood Program (SAIL) lack the required building permits and are without any relevance to those livelihood projects
3
envisioned by the SAIL; and (6) more importantly, as alleged in paragraph VII of his Petition:
. . . the illegal prosecution of these public work projects requiring massive outlay of public funds during this election
period has been and is being done maliciously and intentionally for the purpose of corrupting the voters and inducing
them to support the candidacy of Respondent Gallardo and his candidates in the coming May 11, 1992 election.
In support of his prayer for a restraining order to be issued upon the filing of the petition and a writ of preliminary injunction immediately
thereafter, herein private respondent alleges in paragraph XV of his Petition:
That unless the illegal acts of Respondents are enjoined or restrained immediately first by the issuance of the
restraining order upon the filing of this Petition and immediately after that a Writ of Preliminary Injunction, great or
irreparable loss and injury shall be caused not only to Petitioner himself, as a candidate and as a taxpayer, but also to
the entire LDP slate of candidates, whose supporters are being corrupted and illegally induced to vote for
Respondent Antonio A. Gallardo and his candidates in consideration of their employment in these projects, but (sic)
most of all the greatest and most irreparable loss, damage and injury, in terms of wanton, irresponsible, excessive,
abusive and flagrant waste of public money, is now being caused and shall continue to be caused, primarily and
principally to the sixty-thousand or more taxpayers of the Province of Camiguin, whom Petitioner represents as
4
Congressman and whose interests Petitioner is sworn to uphold, promote and protect.
The questioned projects are classified into two (2) categories: (a ) those that are Locally-Funded, consisting of twenty-nine (29) different
projects for the maintenance or concreting of various roads, the rehabilitation of the Katibawasan Falls and the construction of the
Capitol Building, and (b) those designated as Foreign-Assisted, consisting of fifteen (15) projects which include the construction of the
Human Resource Development Center, various Day Care cum Production Centers and waterworks systems; the extension and
5
renovation of various buildings; the acquisition of hospital and laboratory equipment; and the rehabilitation of office and equipment.
6

On the same day that the private respondent filed his petition, public respondent Judge issued the questioned TRO, the pertinent
portion of which reads:
It appearing from the verified petition in this case that great and irreparable damage and/or injuryshall be caused to
the petitioner as candidate and taxpayer, such damage and injury taking the form and shape occasioned by the
alleged wanton, excessive, abusive and flagrant waste of public money, before the matter can be heard on notice, the
respondents are hereby Temporarily Restrained from pursuing or prosecuting the projects itemized in Annexes "A"
and "A-1" of the petition; from releasing, disbursing and/or spending any public funds for such projects; from issuing,
using or availing of treasury warrants or any device undertaking future delivery of money, goods or other things of
value chargeable against public funds in connection with said projects. (Emphasis supplied).
In the same order, the public respondent directed the petitioners to file their Answer within ten (10) days from receipt of notice and set
the hearing on the application for the issuance of the writ of preliminary injunction for 24 April 1992. Instead of filing the Answer, the
petitioners filed the instant special civil action for certiorari and prohibition, with a prayer for a writ of preliminary injunction and/or
temporary restraining order, alleging as grounds therefor the following:
I
PUBLIC RESPONDENT HAS NO JURISDICTION OVER SPECIAL CIVIL ACTION NO. 465, BEING (sic) A SUIT
INTENDED TO ENJOIN AN ALLEGED VIOLATION OF THE OMNIBUS ELECTION CODE.
II

26

REGIONAL TRIAL COURT'S JURISDICTION IS LIMITED TO CRIMINAL ACTIONS FOR VIOLATION OF THE
OMNIBUS ELECTION CODE.
III
THE REGIONAL TRIAL COURT HAS NO JURISDICTION TO TAKE COGNIZANCE OF COMPLAINTS/PETITION
BASED ON ELECTION OFFENSES PRIOR TO THE CONDUCT OF PRELIMINARY INVESTIGATION BY THE
COMMISSION ON ELECTIONS; FURTHER, PRIVATE RESPONDENT HAS NO RIGHT TO FILE SPECIAL CIVIL
ACTION NO. 465 SINCE THE AUTHORITY TO PROSECUTE ELECTION OFFENSES BELONGS TO THE
COMMISSION ON ELECTIONS.
IV
PRIVATE RESPONDENT FAILED TO EXHAUST ALL HIS ADMINISTRATIVE REMEDIES
V
THE PETITION DATED 09 APRIL 1992 FILED WITH PUBLIC RESPONDENT IS COMPLETELY BASELESS
SINCE:
A. THE PUBLIC WORKS PROJECTS BEING UNDERTAKEN BY PETITIONERS ARE
EXEMPTED FROM THE PUBLIC WORKS BAN ENFORCED BY THE COMELEC.
B. THE PUBLIC WORKS PROJECTS WERE COMMENCED ONLY AFTER APPROVAL OF THE
DETAILED ENGINEERING PLANS AND SPECIFICATIONS AND PROGRAM OF WORK.
C. THE PUBLIC WORKS PROJECTS WERE PROPERLY SUPPORTED BY A BUDGET DULY
PASSED AND APPROVED BY THE SANGGUNIANG PANLALAWIGAN.
D. THE DEVELOPMENT FUND MAY VALIDLY BE USED TO FINANCE THE MAINTENANCE OF
PROVINCIAL ROADS.
VI
THE TAXPAYER'S SUIT FILED BY PRIVATE RESPONDENT IS IMPROPER SINCE HE IS NOT A REAL PARTY IN
INTEREST.
VII
THE PUBLIC RESPONDENT ACTED WITH UNDUE HASTE, MANIFEST PARTIALITY AND EVIDENT BIAS IN
FAVOR OF PRIVATE RESPONDENT AND AGAINST PETITIONERS IN ISSUING THE TEMPORARY
7
RESTRAINING ORDER.
As adverted to earlier, We issued a Temporary Restraining Order on 20 April 1992.
After considering the allegations, issues and arguments adduced in the Petition, the Comment thereto and the Reply to the Comment,
8
We gave due course to this Petition and required the parties to submit their respective Memoranda which they complied with.
The main issue in this case is whether or not the trial court has jurisdiction over the subject matter of Special Civil Action No. 465. The
material operative facts alleged in the petition therein inexorably link the private respondent's principal grievance to alleged violations of
paragraphs (a), (b), (v) and (w), Section 261 of the Omnibus Election Code (Batas Pambansa Blg. 881). There is particular emphasis
on the last two (2) paragraphs which read:
Sec. 261. Prohibited Acts. The following shall be guilty of an election offense:
(a) Vote-buying and vote-selling.
xxx xxx xxx

27

(b) Conspiracy to bribe voters.

xxx xxx xxx
(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 fortyfive days before a regular election and thirty days before a special election, releases, disburses or expends any
public funds for:
(1) Any and all kinds of public works, except the following:
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.
Private respondent likewise focuses on Resolution No. 2332 (not 2322 as erroneously stated in page 10 of his Petition) of the
COMELEC, promulgated on 2 January 1992, implementing the aforesaid paragraphs (v) and (w) of Section 261 and fixing the duration
of the 45-day ban for purposes of the synchronized elections from 27 March 1992 to 11 May 1922.
Essentially, therefore, Civil Case No. 465 before the trial court is for the enforcement of laws involving the conduct of elections;
corollarily, the issue that is logically provoked is whether or not the trial court has jurisdiction over the same. If the respondent Judge
had only hearkened to this Court's teaching about a quarter of a century earlier, this case would not have reached Us and taken away
from more deserving cases so much precious time.
9

Zaldivar vs. Estenzo, decided by this Court on 3 May 1968, had squarely resolved the issue above posed. Speaking through then
Associate Justice Enrique Fernando (who later became Chief Justice), this Court explicitly ruled that considering that the Commission
on Elections is vested by the Constitution with exclusive charge of the enforcement and administration of all laws relative to the conduct
of elections, the assumption of jurisdiction by the trial court over a case involving the enforcement of the Election Code "is at war with
the plain constitutional command, the implementing statutory provisions, and the hospitable scope afforded such grant of authority so
10
clear and unmistakable in recent decisions."
Said case was decided under the aegis of the 1935 Constitution and R.A. No. 180, otherwise known as the Revised Election Code,
which took effect on 21 June 1947. The present Constitution and extant election laws have further strengthened the foundation for the
above doctrine; there can be no doubt that the present COMELEC has broader powers than its predecessors. While under the 1935
Constitution it had "exclusive charge of the enforcement and administration of all laws relative to the conduct of elections," exercised
11
"all other functions . . . conferred upon it by law" and had the power to deputize all law enforcement agencies and instrumentalities of
12
the Government for the purpose of insuring free, orderly and honest elections, and under the 1973 Constitution it had, inter alia, the
13
power (a) "[E]nforce and administer all laws relative to the conduct of elections" (b) "[D]eputize, with the consent or at the instance of
the Prime Minister, law enforcement agencies and instrumentalities of the Government, including the Armed Forces of the Philippines,
14
for the purpose of ensuring free, orderly, and honest elections," and (c) "[P]erform such other functions as may be provided by
15
law," it was not expressly vested with the power to promulgate regulations relative to the conduct of an election. That power could
only originate from a special law enacted by Congress; this is the necessary implication of the above constitutional provision authorizing
the Commission to "[P]erform such other functions as may be provided by law."
The present Constitution, however, implicitly grants the Commission the power to promulgate such rules and regulations. The pertinent
portion of Section 2 of Article IX-C thereof reads as follows:
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. (Emphasis supplied).
xxx xxx xxx
The word regulations is not found in either the 1935 or 1973 Constitutions. It is thus clear that its incorporation into the present
Constitution took into account the Commission's power under the Omnibus Election Code (Batas Pambansa Blg. 881), which was
already in force when the said Constitution was drafted and ratified, to:

28

xxx xxx xxx

Promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is
16
required to enforce and administer, . . . .
Hence, the present Constitution upgraded to a constitutional status the aforesaid statutory authority to grant the Commission
broader and more flexible powers to effectively perform its duties and to insulate it further from legislative intrusions.
Doubtless, if its rule-making power is made to depend on statutes, Congress may withdraw the same at any time. Indeed, the
present Constitution envisions a truly independent Commission on Elections committed to ensure free, orderly, honest,
17
peaceful and credible elections, and to serve as the guardian of the people's sacred right of suffrage the citizenry's vital
weapon in effecting a peaceful change of government and in achieving and promoting political stability.
Additionally, by statutory mandate, the present Commission on Elections possesses, inter alia, the following powers:
l) Exercise 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. In addition, it may authorize CMT cadets eighteen years of age
and above to act as its deputies for the purpose of enforcing its orders.
The Commission may relieve any officer or employee referred to in the preceding paragraph from the performance of
his duties relating to electoral processes who violates the election law or fails to comply with its instructions, orders,
decisions or rulings, and appoint his substitute. Upon recommendation of the Commission, the corresponding proper
authority shall suspend or remove from office any or all of such officers or employees who may, after due process, be
18
found guilty of such violation or failure.
2) To stop any illegal election activity, or confiscate, tear down, and stop any unlawful, libelous, misleading or false
19
election propaganda, after due notice and hearing.
Needless to say, the acts sought to be restrained in Special Civil Action No. 465 before the court a quo are matters falling within the
exclusive jurisdiction of the Commission. As a matter of fact, the specific allegations in the petition therein of violations of paragraphs
(a), (b), (v) and (w), Section 261 of the Omnibus Election Code provide a stronger basis and reason for the application of
the Zaldivar doctrine. At most, the facts in the latter case do not illustrate as clearly the announced doctrine as the facts in this case do.
In Zaldivar, no specific provision of the Revised Election Code then in force was alleged to have been violated. What was sought to be
enjoined was the alleged wielding by Zaldivar, then a municipal mayor, of the power, by virtue of his office, to appoint special policemen
or agents to terrorize voters into supporting the congressional candidate of his choice. In holding that the then Court of First Instance
did not have jurisdiction over the case, this Court considered the constitutional power of the Commission on Elections to have exclusive
charge of the enforcement and administration of all laws relative to the conduct of elections and to exercise all other functions which
may be conferred by law. We likewise relied on the provisions of the Revised Election Code vesting upon the COMELEC (a) direct and
immediate supervision over municipal, city and provincial officials designated by law to perform duties relative to the conduct of
elections and (b) authority to suspend them from the performance of such duties for failure to comply with its instructions, orders,
decisions or rulings and recommend to the President their removal if found guilty of non-feasance, malfeasance or misfeasance in
20
connection with the performance of their duties relative to the conduct of elections.
Under the present law, however, except in case of urgent need, the appointment or hiring of new employees or the creation or filling up
of new positions in any government office, agency or instrumentality, whether national or local, including government-owned or
controlled corporations, is banned during the period of forty-five (45) days before a regular election and thirty (30) days before a special
21
election if made without the prior authority of the Commission on Elections. A violation thereof constitutes an election offense. Then
too, no less than the present Constitution and not just the Election Law as was the case at the time of Zaldivar expressly provides
that the Commission may "[R]ecommend to the President the removal of any officer or employee it has deputized, or the imposition of
22
any other disciplinary action, for violation or disregard of, or disobedience to its directive, order, or decision."
Moreover, the present Constitution also invests the Commission with the power to "investigate and, where appropriate, prosecute cases
23
of violations of election laws, including acts or omissions constituting election frauds, offenses, and malpractices."
It may thus be said without fear of contradiction that this vast array of powers and functions now enjoyed by the Commission under the
present Constitution provides a stronger foundation for, and adds vigor and vitality to, theZaldivar doctrine.
The rationale of the said doctrine needs to be stressed here so that henceforth, no judge will lose his bearings when confronted with the
same issue. Otherwise, he should be held to account for either the sheer ignorance of the law or the callous disregard of
pronouncements by this Court to accommodate partisan political feelings. We declared in the said case:

29

The question may be asked: Why should not the judiciary be a

co-participant in this particular instance of enforcing the Election Code as its authority was invoked? The obvious
answer is the literal language of the Constitution which empowers the Commission on Elections to "have exclusive
charge of the enforcement and administration of all laws relative to the conduct of the elections." Moreover, as was so
aptly observed by the then Justice Frankfurter, although the situation confronting the United States Supreme Court
was of a different character: "Nothing is clearer than that this controversy concerns matters that brings courts into
immediate and active relations with party contests. From the determination of such issues this Court has traditionally
held aloof. It is hostile to a democratic system to involve the judiciary in the politics of the people. And it is not less
pernicious if such judicial intervention in an essentially political contest be dressed up in the abstract phrases of the
24
law." Then, too, reference by analogy may be made to the principle that sustains Albano v. Arranz. For even
without the express constitutional prescription that only this Court may review the decisions, orders and rulings of the
Commission on Elections, it is easy to understand why no inference whatsoever with the performance of the
Commission on Elections of its functions should be allowed unless emanating from this Court. The observation of
25
Acting Chief Justice J.B.L. Reyes in Albano v. Arranz, while not precisely in point, indicates the proper approach.
Thus: "It is easy to realize the chaos that would ensue if the Court of First Instance of each and every province were
to arrogate unto itself the power to disregard, suspend, or contradict any order of the Commission on Elections; that
constitutional body would be speedily reduced to impotence."
This conclusion finds' support from a consideration of weight and influence. What happened in this case could be
repeated elsewhere. It is not improbable that courts of first instance would be resorted to by leaders of candidates or
political factions entertaining the belief whether rightly or wrongly that local officials would employ all the power at
their command to assure the victory of their candidates. Even if greater care and circumspection, than did exist in this
case, would be employed by judges thus appealed to, it is not unlikely that the shadow of suspicion as to alleged
partisanship would fall on their actuations, whichever way the matter before them is decided. It is imperative that the
faith in the impartiality of the judiciary be preserved unimpaired. Whenever, therefore, the fear may be plausibly
entertained that an assumption of jurisdiction would lead to a lessening of the undiminished trust that should be
reposed in the courts and the absence of authority discernible the from the wording of applicable statutory provisions
and the trend of judicial decisions, even if no constitutional mandate as that present in this case could be relied upon,
26
there should be no hesitancy in declining to act.
The foregoing disquisitions should have rendered unnecessary the resolution of the remaining collateral issues raised in this petition. In
view, however, of their importance, they will be dealt with in a general way.
It is not true that, as contended by the petitioners, the jurisdiction of the Regional Trial Court under the election laws is limited to
criminal actions for violations of the Omnibus Election Code. The Constitution itself grants to it exclusive original jurisdiction over
27
contests involving elective municipal officials. Neither can We agree with the petitioners' assertion that the Special Civil Action filed in
the court below involves the prosecution of election offenses; the said action seeks some reliefs incident to or in connection with alleged
election offenses; specifically, what is sought is the prevention of the further commission of these offenses which, by their alleged
nature, are continuing.
There is as well no merit in the petitioners' claim that the private respondent has no legal standing to initiate the filing of a complaint for
a violation of the Omnibus Election Code. There is nothing in the law to prevent any citizen from exposing the commission of an
election offense and from filing a complaint in connection therewith. On the contrary, under the COMELEC Rules of Procedure, initiation
of complaints for election offenses may be donemotu propio by the Commission on Elections or upon written complaint by any citizen,
candidate or registered political party or organization under the party-list system or any of the accredited citizens arms of the
28
Commission. However, such written complaints should 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
29
Fiscal." As earlier intimated, the private respondent was not seriously concerned with the criminal aspect of his alleged grievances.
He merely sought a stoppage of the public works projects because of their alleged adverse effect on his candidacy. Indeed, while he
may have had reason to fear and may have even done the right thing, he committed a serious procedural misstep and invoked the
wrong authority.
We have, therefore, no alternative but to grant this petition on the basis Our resolution of the principal issue. Nevertheless, it must be
strongly emphasized that in so holding that the trial court has no jurisdiction over the subject matter of Special Civil Action No. 465, We
are not to be understood as approving of the acts complained of by the private respondent. If his charges for the violation of paragraphs
(a), (b), (v) and (w), Section 261 of the Omnibus Election Code are true, then no one should be spared from the full force of the law. No
government official should flout laws designed to ensure the holding of free, orderly, honest, peaceful and credible elections or make a
mockery of our electoral processes. The bitter lessons of the past have shown that only elections of that nature or character can
guarantee a peaceful and orderly change. It is then his duty to respect, preserve and enhance an institution which is vital in any
democratic society.
WHEREFORE, the instant Petition is hereby GRANTED. The challenged order of respondent Judge of 10 April 1992 in Special Civil
Action No. 465 is SET ASIDE and said Civil Case is hereby ordered DISMISSED, without prejudice on the part of the private
respondent to file, if he is so minded, the appropriate complaint for an election offense pursuant to the COMELEC Rules of Procedure.

30

Costs against the private respondent.

SO ORDERED.
Feliciano, Padilla, Bidin, Grio-Aquino, Regalado, Romero, Nocon, Bellosillo, Melo and Campos, Jr., JJ., concur.

Separate Opinions

CRUZ, J., concurring and dissenting:

I concur but, regretfully, not with the statement that the Commission on Elections now derives the power to promulgate resolutions
directly from Article IX-C, Section 2(l) of the Constitution, to wit:
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. (Emphasis supplied)
xxx xxx xxx
With all due respect, I submit that what the COMELEC is authorized to do under that provision is only to "enforce and administer" such
laws and regulations, not to promulgate them. The addition of the word "regulations" in the new subsection does not empower it now to
promulgate regulations any more than it can promulgate laws. As I read it, all that the change imports is that the scope of the measures
the COMELEC may enforce and administer has been expressly widened, to include "regulations."
Regulations are mainly intended to implement or supplement a law and may be generally issued only pursuant to a valid delegation of
legislative power. That is why they are known as "subordinate legislation." In the case of the COMELEC, I see no constitutional vesture
in it of the power to promulgate regulations, much less laws. There does not seem to be even an "implicit" grant of that authority, as
the ponencia suggests.
Narvasa, C.J., and Gutierrez, Jr., J., concur.

# Separate Opinions
CRUZ, J., concurring and dissenting:
I concur but, regretfully, not with the statement that the Commission on Elections now derives the power to promulgate resolutions
directly from Article IX-C, Section 2(l) of the Constitution, to wit:
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. (Emphasis supplied)
xxx xxx xxx
With all due respect, I submit that what the COMELEC is authorized to do under that provision is only to "enforce and administer" such
laws and regulations, not to promulgate them. The addition of the word "regulations" in the new subsection does not empower it now to

31

promulgate regulations any more than it can promulgate laws. As I read it, all that the change imports is that the scope of the measures
the COMELEC may enforce and administer has been expressly widened, to include "regulations."
Regulations are mainly intended to implement or supplement a law and may be generally issued only pursuant to a valid delegation of
legislative power. That is why they are known as "subordinate legislation." In the case of the COMELEC, I see no constitutional vesture
in it of the power to promulgate regulations, much less laws. There does not seem to be even an "implicit" grant of that authority, as
the ponencia suggests.
Narvasa, C. J., and Gutierrez, Jr., J., concur.
EN BANC
G.R. No. 161265

February 24, 2004

LABAN NG DEMOKRATIKONG PILIPINO, represented by its Chairman EDGARDO J. ANGARA

vs.
THE COMMISION ON ELECTIONS and AGAPITO A. AQUINO
DECISION
TINGA, J.:
The Bible tells the story of how two women came to King Solomon to decide who among them is the babys true mother. King Solomon,
in his legendary wisdom, awarded the baby to the woman who gave up her claim after he threatened to split the baby into two.
It is fortunate that the two women did not ask the Commission on Elections (COMELEC) to decide the babys fate; otherwise, it would
have cut the baby in half. For that is what the COMELEC exactly did in this case.
On December 8, 2003, the General Counsel of the Laban ng Demokratikong Pilipino (LDP), a registered political party, informed the
COMELEC by way of Manifestation that only the Party Chairman, Senator Edgardo J. Angara, or his authorized representative may
endorse the certificate of candidacy of the partys official candidates. The same Manifestation stated that Sen. Angara had placed the
LDP Secretary General, Representative Agapito A. Aquino, on "indefinite forced leave." In the meantime, Ambassador Enrique A.
Zaldivar was designated Acting Secretary General. The Manifestation concluded with this prayer:
A. The Honorable Commission recognizes [sic] only those Certificates of Candidacy to which are attached Certificates of
Nomination executed by LDP Party Chairman Edgardo J. Angara or by such other officers of the LDP whom he may authorize
in writing, and whose written authorizations shall be deposited with the Honorable Commission by the LDP General Counsel.
B. The Honorable Commission declares [sic] as a nullity, denies [sic] due course or cancels [sic] all Certificates of Candidacy
not endorsed by LDP Party Chairman Angara or by such other LDP officials as may be authorized by him.
C. The Honorable Commission takes [sic] note of the designation of Ambassador Enrique "Ike" A. Zaldivar as Acting Secretary
General of the LDP, and for the Honorable Commission to honor and recognize the official acts, to the exclusion of everyone,
1
of Ambassador Zaldivar for and in behalf of the LDP as Secretary General.
On December 16, 2003, Rep. Aquino filed his Comment, contending that the Party Chairman does not have the authority to impose
disciplinary sanctions on the Secretary General. As the Manifestation filed by the LDP General Counsel has no basis, Rep. Aquino
asked the COMELEC to disregard the same.
On December 17, 2003, the parties agreed to file a joint manifestation pending which the proceedings were deemed suspended. On
December 22, 2003, however, only the LDP General Counsel filed an Urgent Manifestation reiterating the contents of the December 8,
2003 Manifestation. The COMELEC also received aLetter from Rep. Aquino stating that the parties were unable to arrive at a joint
manifestation.
The next day, the LDP General Counsel filed a Second Urgent Manifestation disputing newspaper accounts that Rep. Aquino had
suspended Sen. Angara as Party Chairman.
On December 26, 2003, the COMELEC issued an Order requiring the parties to file a verified petition. It turned out that, two days
before, Sen. Angara had submitted a verified Petition, in essence, reiterating the contents of its previous Manifestations. Attached to
2
the Petition was a Resolution adopted by the LDP National Executive Council, stating:

32

WHEREAS, on September 25, 2003, the National Executive Council of the Laban ng Demokratikong Pilipino (LDP) convened and
unanimously passed a resolution granting full authority to Party Chairman Edgardo J. Angara to enter, negotiate and conclude a
coalition agreement with other like-minded opposition parties, aggrupations and interest groups with the sole purpose of uniting the
political opposition and fielding a unity ticket for the May 10, 2004 elections;
WHEREAS, on December 3, 2003, the LDP, together with the Puwersa ng Masang Pilipino (PMP) and the Partido Demokratiko ng
Pilipinas - LABAN (PDP-LABAN) forged a coalition to form the Koalisyon ng Nagkakaisang Pilipino(KNP);
WHEREAS, the Executive Committee of the KNP subsequently adopted its resolution entitled: "Resolution Choosing Mr. Fernando
Poe, Jr. as the Standard Bearer of the Koalisyon ng Nagkakaisang Pilipino (KNP) for President of the Republic of the Philippines in the
May 10, 2004 National Elections";
....
WHEREAS, the process of unification of the political opposition and the actions taken in connection therewith by Chairman Angara and
by other governing bodies of the LDP required the taking of immediate and forceful action by them to preserve and protect the integrity,
credibility, unity and solidarity of the LDP, and ensure the attainment of unification of the political opposition;
WHEREAS, such immediate and forceful action include those that have to do with pre-emptive efforts to diffuse the chaos, confusion
and disunity projected by the pronouncements and acts of some officers and members to the general membership of the LDP and the
electorate, such as the one taken by the Regional Committee for Region VI (Western Visayas) on December 6, 2003; the enforcement
of order in the LDP through the voice of a central leadership in command in an otherwise extraordinary and emergency situation, such
as the one taken by Party Chairman Angara on December 6, 2003; the filing of the Manifestation with the COMELEC on the matter of
the authorized signatories for the nominations and, the adoption of resolutions by the regional committees affirming their trust and
confidence in Chairman Angara, and authorizing him to choose the presidential standard bearer for the May 10, 2004 elections; NOW
THEREFORE, BE IT
RESOLVED, AS IT IS HEREBY RESOLVED, By the National Executive Council, to ratify and confirm the Covenant of National Unity,
the Declaration of Unity entered into by Party Chairman Edgardo J. Angara, and all acts and decisions taken by him to enforce and
implement the same;
RESOLVED, FURTHER, To ratify and confirm all other acts and decisions of Chairman Angara and other governing bodies to preserve
the integrity, credibility, unity and solidarity of the LDP; and,
RESOLVED, FINALLY, To reiterate the vote of confidence of the National Executive Council in, and support to, the continued efforts of
3
Chairman Angara to unite the political opposition.
Rep. Aquino filed his Answer to the Petition on December 30, 2003. The COMELEC heard the parties on oral arguments on the same
day, after which the case was submitted for resolution.
Pending resolution, a Certificate of Nomination of Sen. Panfilo Lacson as LDP candidate for President was filed with the COMELEC.
The Certificate of Nomination was signed by Rep. Aquino as LDP Secretary General.
On January 6, 2004, the COMELEC came to a decision.
The Commission identified the sole issue as "who among the [LDP] officers [are] authorized to authenticate before the Commission that
the person filing the certificate of candidacy as party nominee for a certain position is the official candidate of the party chosen in
4
accordance with its Constitution."
The COMELEC recognized that it "has the authority to act on matters pertaining to the ascertainment of the identity of [a] political party
5
and its legitimate officers." In the same breath, however, it held that "internal party matters and wranglings [sic] are purely for the
party members to settle among themselves and any unsettled controversy should be brought to the proper forum with jurisdiction." The
6
"question of who was suspended by whom" was thus left for such proper forum to resolve. Noting that "the intramurals in the LDP as
an internal party matter seems to be irreconcilable for the present when the filing of Certificate of Candidacy and Certificate of
Nomination are about to reach the deadline," the COMELEC disposed of the Petition in the following fashion:
WHEREFORE, premises considered, the petition is GRANTED with LEGAL EQUITY for both Petitioner and Oppositor. The candidates
for President down to the last Sangguniang Bayan Kagawad nominated and endorsed by LDP Chairman Edgardo J. Angara are
recognized by the Commission as official candidates of LDP "Angara Wing". The candidates from President down to the last
Sangguniang Bayan Kagawad as nominated and endorsed by LDP Secretary General Agapito "Butz" Aquino are recognized as official
candidates of LDP "Aquino Wing".

33

Consequently, each faction or "Wing" is entitled to a representative to any election committee to which it may be entitled as created by
the Commission for the May 10, 2004 elections. For the copies of the election returns, the "Angara Wing" will be entitled to the copies
corresponding to odd number of precincts, that is, Precinct Nos. 1, 3, 5, etc., and for the "Aquino Wing" to the even number of precincts,
that is Precinct Nos. 2, 4, 6, etc. This is on the assumption that the LDP or as a party within a registered Political Coalition becomes a
recognized and denominated as a Dormant [sic] Minority Party under the Election Laws. The two LDP "Wings" are further entitled to
7
and be accorded the rights and privileges with corresponding legal obligations under Election Laws.
Commissioners Luzviminda G. Tancangco, Ralph C. Lantion, Resurreccion Z. Borra and Florentino A. Tuason, Jr. concurred in the
Resolution authored by Commissioner Rufino S.B. Javier. Chair Benjamin S. Abalos, Sr., joined by Commissioner Mehol K. Sadain,
submitted dissenting opinions.
8

Sen. Angara thus filed the present petition for Certiorari assailing the COMELEC Resolution for having been issued with grave abuse
of discretion.
Thereafter, Rep. Aquino filed his Comment.
The Office of the Solicitor General submitted a Manifestation and Motion praying for the granting of the Petition. The COMELEC thus
filed a separate Comment to the Petition.
The COMELEC correctly stated that "the ascertainment of the identity of [a] political party and its legitimate officers" is a matter that is
well within its authority. The source of this authority is no other than the fundamental law itself, which vests upon the COMELEC the
9
power and function to enforce and administer all laws and regulations relative to the conduct of an election. In the exercise of such
power and in the discharge of such function, the Commission is endowed with ample "wherewithal" and "considerable latitude in
adopting means and methods that will ensure the accomplishment of the great objectives for which it was created to promote free,
10
orderly and honest elections."
Thus, in Kalaw v. Commission on Elections which involved the leadership fight in the Liberal Party,

11

this Court held:

that the respondent [COMELEC] has jurisdiction to hear and decide SP Case No. 85-021 [involving a petition to prohibit Eva Estrada
Kalaw "from usurping or using the title or position of President of the Liberal Party"] in view of its powers under Article IX-C, Section 2,
of the Constitution to, among others, enforce and administer all laws relative to the conduct of elections, decide all questions affecting
elections, register and regulate political parties, and insure orderly elections. These powers include the determination of the conflicting
claims made in SP Case No. 85-021, which are likely to cause confusion among the electorate if not resolved. Additionally, the
COMELEC is mandated by the Election Code to inter alia require candidates to specify their political party affiliation in their certificates
of candidacy, allow political parties to appoint watchers, limit the expenditures of each political party, determine whether or not a
political party shall retain its registration on the basis of its showing in the preceding elections, etc. These matters include the
ascertainment of the identity of the political party and its legitimate officers responsible for its acts and the resolution of such
controversies as the one now before it where one party appears to be divided into two wings under separate leaders each claiming to
be the president of the entire party. [Emphasis supplied.]
Likewise in Palmares v. Commission on Elections,
13
Nacionalista Party, this Court ruled

12

to which the assailed Resolution made reference and which involved the

that the COMELEC has jurisdiction over the issue of leadership in a political party. Under the Constitution, the COMELEC is
empowered to register political parties [Sec. 2(5), Article IX-C.] Necessarily, the power to act on behalf of a party and the responsibility
for the acts of such political party must be fixed in certain persons acting as its officers. In the exercise of the power to register political
parties, the COMELEC must determine who these officers are. Consequently, if there is any controversy as to leadership, the
COMELEC may, in a proper case brought before it, resolve the issue incidental to its power to register political parties.
This Court then proceeded to quote from Kalaw, supra.
14

15

The two cited decisions find support in Sumulong v. Commission on Elections and Sotto v. Commission on Elections, where this
Court, in resolving the issue as to who between the factions of a political party was entitled to nominate election inspectors, necessarily
settled claims to the partys leadership. Both cases were decided without question on the COMELECs power to determine such claims.
In conformity with jurisprudence, this Court did not identify the COMELECs jurisdiction as an issue when this case was heard on oral
argument.
There is no inconsistency between the above cases on the one hand and this Courts more recent ruling in Sinaca v. Mula
other. In the latter case, this Court held:

16

on the

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. Political parties are generally free to conduct their internal affairs free from judicial supervision;

34

this common-law principle of judicial restraint, rooted in the constitutionally protected right of free association, serves the public interest
by allowing the political processes to operate without undue interference. Thus, the rule is that the determination of disputes as to party
nominations rests with the party, in the absence of statutes giving the courts [sic] jurisdiction.
Quintessentially, where there is no controlling statute or clear legal right involved, the court will not assume jurisdiction to
determine factional controversies within a political party, but will leave the matter for determination by the proper tribunals of the party
itself or by the electors at the polls. Similarly, in the absence of specific constitutional or legislative regulations defining how nominations
are to be made, or prohibiting nominations from being made in certain ways, political parties may handle such affairs, including
nominations, in such manner as party rules may establish. [Emphasis supplied.]
Sinaca, unlike previous cases, did not involve the question of party identity or leadership; hence, it was not necessary for the
COMELEC to delve therein. None of the candidates involved in that case were claiming to be the political partys sole candidate.
In the case at bar, the Party Chairman, purporting to represent the LDP, contends that under the Party Constitution only he or his
representative, to the exclusion of the Secretary General, has the authority to endorse and sign party nominations. The Secretary
General vigorously disputes this claim and maintains his own authority. Clearly, the question of party identity or leadership has to be
resolved if the COMELEC is to ascertain whether the candidates are legitimate party standard bearers or not.
The repercussions of the question of party identity and leadership do not end at the validity of the endorsement of the certificates of
candidacy of persons claiming to be the partys standard bearer. The law grants a registered political party certain rights and
17
privileges, which, naturally, redound to the benefit of its candidates. It is also for this significant dimension that Sinaca is not applicable
in this case. As conceded in Sinaca itself, the Court will have to assume jurisdiction to determine factional controversies within a
18
political party where a controlling statute or clear legal right is involved. Verily, there is more than one law, as well as a number of
clear legal rights, that are at stake in the case at bar.
The law accords special treatment to political parties. The dominant majority party, the dominant minority party as determined by the
19
COMELEC, for instance, is entitled to a copy of the election returns. The six (6) accredited major political parties may nominate the
20
principal watchers to be designated by the Commission. The two principal watchers representing the ruling coalition and the dominant
opposition coalition in a precinct shall, if available, affix their signatures and thumbmarks on the election returns for that
21
22
precinct. Three (3) of the six accredited major political parties are entitled to receive copies of the certificate of canvass. Registered
political parties whose candidates obtained at least ten percent (10%) of the total votes cast in the next preceding senatorial election
shall each have a watcher and/or representative in the procurement and watermarking of papers to be used in the printing of election
23
returns and official ballots and in the printing, numbering, storage, and distribution thereof. Finally, a candidate and his political party
24
are authorized to spend more per voter than a candidate without a political party.
It is, therefore, in the interest of every political party not to allow persons it had not chosen to hold themselves out as representatives of
the party. Corollary to the right of a political party "to identify the people who constitute the association and to select a standard bearer
25
who best represents the partys ideologies and preference" is the right to exclude persons in its association and to not lend its name
and prestige to those which it deems undeserving to represent its ideals. A certificate of candidacy makes known to the COMELEC that
the person therein mentioned has been nominated by a duly authorized political group empowered to act and that it reflects accurately
26
the sentiment of the nominating body. A candidates political party affiliation is also printed followed by his or her name in the certified
27
list of candidates. A candidate misrepresenting himself or herself to be a partys candidate, therefore, not only misappropriates the
partys name and prestige but foists a deception upon the electorate, who may unwittingly cast its ballot for him or her on the mistaken
belief that he or she stands for the partys principles. To prevent this occurrence, the COMELEC has the power and the duty to step in
and enforce the law not only to protect the party but, more importantly, the electorate, in line with the Commissions broad constitutional
mandate to ensure orderly elections.
Having revisited and clarified the jurisdiction of COMELEC to rule upon questions of party identity and leadership as an incident to its
enforcement powers, this Court cannot help but be baffled by the COMELECs ruling declining to inquire into which party officer has the
authority to sign and endorse certificates of candidacy of the partys nominees.
The only issue in this case, as defined by the COMELEC itself, is who as between the Party Chairman and the Secretary General has
the authority to sign certificates of candidacy of the official candidates of the party. Indeed, the
petitioners Manifestation and Petition before the COMELEC merely asked the Commission to recognize only those certificates of
candidacy signed by petitioner Sen. Angara or his authorized representative, and no other.
To resolve this simple issue, the COMELEC need only to turn to the Party Constitution. It need not go so far as to resolve the root of the
conflict between the party officials. It need only resolve such questions as may be necessary in the exercise of its enforcement powers.
The LDP has a set of national officers composed of, among others, the Party Chairman and the Secretary General.
Chairman is the Chief Executive Officer of the Party, whose powers and functions include:

28

The Party

35

(1) To represent the Party in all external affairs and concerns, sign documents for and on its behalf, and call the meetings and be the
29
presiding officer of the National Congress and the National Executive Council.
The Secretary General, on the other hand, assists the Party Chairman in overseeing the day-to-day operations of the Party. Among his
powers and functions is:
(1) When empowered by the Party Chairman, to sign documents for and on behalf of the Party.

30

The Secretary Generals authority to sign documents, therefore, is only a delegated power, which originally pertains to the Party
Chairman.
Rep. Aquino claims that he was authorized to exercise to sign the party candidates certificates of candidacy in the previous elections.
Indeed, the COMELEC found that:
In fact, during the May 14, 2001 elections, oppositor Agapito "Butz Aquino, as LDP Secretary General, was authorized by the LDP to
sign for the Certificates of Nomination of the LDP Senatorial Candidates, including the Certificate of Nomination for Senatorial
Candidate Edgardo J. Angara, a copy of said Certificate of Nomination and a copy of the Certificate for Senator Edgardo J. Angara are
attached as Annexes A and B, respectively. This action by Secretary General Aquino is in accordance with the Constitution and Bylaws of LDP, not questioned by the LDP signed by its Secretary General. This revocation has not been revoked or recalled by the
31
National Congress of the LDP which is the one authorized to nominate candidates for President and Vice-President, respectively.
Assuming that Rep. Aquino previously had such authority, this Court cannot share the COMELECs finding that the same "has not been
revoked or recalled." No revocation of such authority can be more explicit than the totality of Sen.
Angaras Manifestations and Petition before the COMELEC, through which he informed the Commission that Rep. Aquinos had been
placed on indefinite forced leave and that Ambassador Zaldivar has been designated Acting Secretary General, who "shall henceforth
32
exercise all the powers and functions of the Secretary General under the Constitution and By-Laws of the LDP." As the prerogative to
empower Rep. Aquino to sign documents devolves upon Sen. Angara, so he may choose, at his discretion, to withhold or revoke such
power.
Both respondents Rep. Aquino and COMELEC also cited Section 6 of COMELEC Resolution No. 6453
Secretary Generals authority to sign certificates of candidacy. Said Section 6 states:

33

as basis for the Party

SEC. 6. Certificate of nomination of official candidates by political party. The certificate of nomination of registered political parties or
coalitions of political parties of their official candidates shall be filed not later than the last day for filing of certificates of candidacy,
which is January 2, 2004 duly signed and attested under oath by the party president, chairman, secretary-general or any
other duly authorized officer and shall bear the acceptance of the nominee by affixing his signature in the space provided therein.
[Emphasis and underscoring supplied.]
Clearly, however, the above provision presupposes that the party president, chairman or secretary-general has been "duly authorized"
by the party to sign the certificate of candidacy. COMELEC Resolution No. 6453 cannot grant a party official greater authority than what
the party itself grants, lest such Resolution amount to a violation of the partys freedom of association.
Neither does the Party Secretary General have the power to nominate the official candidates of the LDP. That power resides in the
34
governing bodies of the Party. In particular, the National Congress, which is the highest policy-making and governing body of the
Party, has the power
(6) To nominate the official candidates of the Party for President, Vice President, and Senators, and, whenever the corresponding
conventions fail to meet or to make the requisite nominations, to nominate the official candidates for municipal city, congressional
35
district, provincial and regional elective offices.
Not only does Rep. Aquino insist on his power to sign Certificates of Candidacy on behalf of the LDP but he would also deny Sen.
Angara that power on account of the latters preventive suspension. It seems, however, that respondent has abandoned this tack by the
silence of his Memorandum on the matter.
In any case, it appears that on November 28, 2003, Representative Rolex Suplico, LDP Region VI Regional Chairman, filed a complaint
with Rep. Aquino against Party Chairman Sen. Angara for disloyalty to the Party, gross violation of the Party Constitution, and other
divisive acts inimical to the interest of the party and its members. Rep. Aquino, as Secretary General, created a committee composed of
three (3) members of the LDP National Executive Council to investigate the complaint and recommend appropriate action thereon. On
December 12, 2003, the investigating committee issued a resolution placing Sen. Angara under preventive suspension effective
immediately and directing him to refrain from performing acts in behalf of the party until the committee finishes its investigation and
submits its final recommendations.

36

The authority to create the investigating committee supposedly rests on Section 9 (4), Article VI of the LDP Constitution, which
enumerates the powers and functions of the Secretary General:
(4) With the concurrence of the Party Chairman, to enforce Party discipline. {Emphasis supplied.]
Evidently, just as Rep. Aquino has no power to sign and nominate candidates in behalf of the LDP, neither does he have the power to
enforce Party discipline or, as an incident thereto, to create an investigating committee, without the Party Chairmans concurrence.
Much less does the investigating committee so created have the power to place the Party Chairman under preventive suspension since
its authority stems from a nullity. Simply put, the spring has no source.
The lack of Rep. Aquinos authority to sign documents or to nominate candidates for the LDP would not result in the denial of due
36
course to or the cancellation of the certificates of candidacy he may have signed on behalf of the LDP. The exclusive ground for the
denial of due course to or the cancellation of a certificate of candidacy for any elective office is that any material representation
37
contained therein as required by law is false. Since the signature of Rep. Aquino was affixed either prior to, or on the basis of, the
challenged Resolution recognizing his authority to sign on behalf of the LDP, the same would not constitute material representation that
is false. In such case, the candidates are simply deemed as not nominated by the LDP and are considered independent candidates
pursuant to Section 7 of COMELEC Resolution No. 6453:
SEC. 7. Effect of filing certificate of nomination. A candidate who has not been nominated by a registered political party or its duly
authorized representative, or whose nomination has not been submitted by a registered political party shall be considered as an
independent candidate.
COMELEC Commissioner Sadain referred to the above provision in his Dissenting Opinion, and this Court finds refreshing wisdom so
sorely wanting in the majority opinion in his suggestion that:
All other party members representing themselves to be candidates of the party shall not be deprived of their right to file their respective
certificates of candidacy and run for office, if so qualified, but that they shall not be accorded the rights and privileges reserved by
38
election laws for official nominees of registered political parties. Instead, they shall be treated as independent candidates.
From the foregoing, it is plain that the COMELEC misapplied equity in the present case. For all its conceded merits, equity is available
39
only in the absence of law and not as its replacement. Equity is described as justice without legality, which simply means that it cannot
40
supplant, although it may, as often happens, supplement the law. The COMELEC should have decided the case on the basis of the
party constitution and election laws. It chose not to because of its irrational fear of treading, as respondent Aquino put it, on
41
"unchartered" territories. But, as shown above, these territories have long been charted by jurisprudence and, in any case, the
COMELEC need not have sailed far from the shore to arrive at the correct conclusion. In truth, the COMELEC Resolution is indecision
in the guise of equity.
Worse, the COMELEC divided the LDP into "wings," each of which may nominate candidates for every elective position. Both wings are
also entitled to representatives in the election committees that the Commission may create. In the event that the LDP is accorded
dominant minority party election status, election returns of odd-numbered precincts shall be furnished the Angara wing and those of
even-numbered precincts, the Aquino wing.
By creating the two wings, the COMELEC effectively diffused the LDPs strength and undeniably emasculated its chance of obtaining
the Commissions nod as the dominant minority party.
By allowing each wing to nominate different candidates, the COMELEC planted the seeds of confusion among the electorate, who are
42
apt to be confounded by two candidates from a single political party. In Recabo, Jr. v. Commission on Elections, this Court declared
that the electoral process envisions one candidate from a political party for each position, and disunity and discord amongst members
of a political party should not be allowed to create a mockery thereof. The admonition against mocking the electoral process not only
applies to political parties but with greater force to the COMELEC.
By according both wings representatives in the election committees, the COMELEC has eroded the significance of political parties and
effectively divided the opposition. The COMELEC has lost sight of the unique political situation of the Philippines where, to paraphrase
Justice Perfectos concurring opinion in Sotto, supra, the administration party has always been unnecessarily and dangerously too big
and the opposition party too small to be an effective check on the administration. The purpose of according dominant status and
representation to a minority party is precisely to serve as an effective check on the majority. The COMELEC performed a disservice to
the opposition and, ultimately, to the voting public, as its Resolution facilitated, rather than forestalled, the division of the minority party.
By splitting copies of the election returns between the two factions, the COMELEC has fractured both wings. The practical purpose of
furnishing a party with a copy of the election returns is to allow it to tally the results of the elections at the precinct level. Ultimately, it is
43
a guard against fraud. Thus, resort to copies thereof may be had when the election returns are delayed, lost or destroyed, or when

37

they appear to be tampered or falsified.

sanctity of the ballot.

44

A split party without a complete set of election returns cannot successfully help preserve the

45

It bears reminding respondent Commission of this Courts pronouncement in Peralta v. Commission on Elections, which, while made
in the backdrop of a parliamentary form of government, holds equally true under the present government structure:
political parties constitute a basic element of the democratic institutional apparatus. Government derives its strength from the
support, active or passive, of a coalition of elements of society. In modern times the political party has become the instrument for the
organization of societies. This is predicated on the doctrine that government exists with the consent of the governed. Political parties
perform an "essential function in the management of succession to power, as well as in the process of obtaining popular consent to the
course of public policy. They amass sufficient support to buttress the authority of governments; or, on the contrary, they attract or
organize discontent and dissatisfaction sufficient to oust the government. In either case they perform the function of the articulation of
the interests and aspirations of a substantial segment of the citizenry, usually in ways contended to be promotive of the national weal."
The assailed COMELEC Resolution does not advance, but subverts, this philosophy behind political parties.
46

As if to rationalize its folly, the COMELEC invokes the constitutional policy towards a free and open party system. This policy,
47
however, envisions a system that shall "evolve according to the free choice of the people," not one molded and whittled by the
COMELEC. When the Constitution speaks of a multi-party system, it does not contemplate the COMELEC splitting parties into two. For
doing just that, this pretender to the throne of King Solomon acted whimsically and capriciously. Certiorari lies against it, indeed.
WHEREFORE, the assailed COMELEC Resolution is ANNULLED and the Petition is GRANTED IN PART. Respondent Commission on
Elections is directed to recognize as official candidates of the Laban ng Demokratikong Pilipino only those whose Certificates of
Candidacy are signed by LDP Party Chairman Senator Edgardo J. Angara or his duly authorized representative/s.
SO ORDERED.
Vitug, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.
Davide, Jr., C.J., in the result.
Puno, J., on leave.
Vitug, J., please see separate opinion.
Sandoval-Gutierrez, J., please see dissenting opinion.
Corona, J., joins the dissenting opinion of J. Gutierrez.

SEPARATE OPINION
VITUG, J.:
The instant petition fundamentally calls on the Court to determine who between Senator Edgardo J. Angara, the Chairman, and
Representative Agapito A. Aquino, the Secretary General, of the Laban ng Demokratikong Pilipino (LDP), has the power and the
authority under the LDP Constitution to nominate official candidates of the party and to correspondingly sign and endorse the certificate
of nomination. The contending parties have performed acts which they, respectively, claim to be within the mandate of the LDP
Constitution.
Petitioner Angara asserts that long-standing LDP practice, as well as the provision of Section 5.5, Article VI, of the LDP
1
Constitution, empowers him as the party Chairman to nominate the official candidates of the LDP for president and vice-president in
the event that its LDP National Congress does not, or fails to, convene. He states that the National Executive Council has met on 22
December 2003, where thirty-six (36) out of forty (40) members of the Council attended, during which a resolution "ratifying and
confirming the covenant of national unity, the declaration of unity entered into by party Chairman Edgardo J. Angara, and all acts and
decisions taken by him to enforce and implement the same; ratifying and confirming likewise all other acts and decisions of Chairman
Angara, and other governing bodies to preserve the integrity, credibility, unity and solidarity of the party; and, further reiterating the vote
of confidence of the national executive council in, and support to, the continued efforts of Chairman Angara to unite the political
opposition," has been adopted.
Respondent Aquino assails the resolution of the National Executive Council in that, allegedly, no proper notices have been sent for the
holding of the meeting held on 22 December 2003 and that, on the basis of LDP records, only thirteen (13) members of the council
have signed and approved the resolution. He claims that Senator Angara has deliberately refused to call a National Congress of the
party. Representative Aquino relies on his authority in past elections to sign certificates of nomination of official candidates of LDP
which, according to him, has not been revoked or recalled by the National Congress of the LDP. He also asseverates that on 04

38

December 2003, during the national meeting at Club Filipino attended by hundreds of members of the LDP, Senator Panfilo Lacson has
been nominated unanimously as the partys candidate for president in the national elections scheduled on 10 May 2001, and that it has
become ministerial for him, being the authorized signatory of the party, to issue the certificate of nomination in favor of Senator Lacson.
It does appear to me that the matter involved in this controversy is an internal matter that the political party itself should resolve. More
importantly, the petition is replete with factual problems which this Court cannot take on. The conflicting claims of the parties, such as
the alleged intentional inaction of Senator Angara to convene the National Congress of the party, the disputed membership of the
national Executive Council which passed the resolution supporting the questioned actions of petitioner Angara, the determination of an
"extraordinary and emergency" situation that would entitle the party chairman to act, the validity of the actions taken at the behest of
respondent Aquino in the National Congress on 04 December 2003, are but a few of the factual issues which need to be first
established before any decision can conclusively be arrived at. The absence of factual determination by the COMELEC on the matters
now being disputed by the parties hardly makes it feasible for this Court to rightly and decisively rule on the case.
Once again, I submit, the Supreme Court is being tasked to exercise the judicial power on something where it should not as yet be
asked.
To the above extent, I, therefore, take exceptions from the ruling of the majority.

DISSENTING OPINION
SANDOVAL-GUTIERREZ, J.:
The instant case arose from an internal squabble between two (2) factions of the Laban ng Demokratikong Pilipino (LDP), a registered
national political party, which put up their respective presidential candidates in the May 2004 national elections.
I find it necessary to state the following important antecedent facts culled from the parties pleadings, some of which were not
mentioned in the ponencia of Justice Dante O. Tinga.
On November 28, 2003, Representative Rolex Suplico (5th District Iloilo), LDP Region VI Chairman, filed with the Office of
1
Representative Agapito A. Aquino, LDP Secretary General, herein respondent, a complaint against Senator Edgardo J. Angara, LDP
Chairman, herein petitioner. The complaint charges petitioner with acts of disloyalty to the party, culpable violation of the LDP
Constitution and By-Laws, disregard of duly approved Resolution of the LDP Executive Council, and other divisive acts inimical to the
interest of the party.
On December 4, 2003, a National Consultative Meeting of the LDP was held at the Club Filipino, Greenhills, San Juan, Metro Manila
wherein Senator Panfilo Lacson was unanimously nominated as the partys official candidate for president in the May 10, 2004 national
2
elections.
On December 8, 2003, LDP General Counsel Demaree J.B. Raval filed wit the Commission on Elections (COMELEC) a
3
Manifestation stating that only its Party Chairman (petitioner Sen. Edgardo J. Angara) and only those whomsoever he may authorize
in writing x x x are authorized to endorse, by way of a Certificate of Nomination, the Certificate of Candidacy of an LDP candidate. The
Manifestation prays that the COMELEC: (a) recognize only those Certificates of Candidacy endorsed by petitioner Angara or his
authorized representative;(b) deny due course all Certificates of Candidacy not endorsed by petitioner Angara or his representative;
and (c) note the designation of Ambassador Enrique A. Zaldivar as LDP Acting Secretary General, in place of Rep. Agapito A.
Aquino who was placed on indefinite forced leave as LDP Secretary General effective December 6, 2003 by virtue of an
4
Advisory dated December 7, 2003 issued by petitioner.
Going back to the Suplico complaint, respondent Aquino, claiming to have authority as Secretary General under the LDP Constitution
5
and By-Laws, issued an Order dated December 10, 2003, creating a committee composed of three (3) members of the National
Executive Council (the LDP governing body) to investigate and recommend appropriate action thereon. He likewise sent petitioner
6
Angara a letter of even dated informing him of the complaint and requesting him to respond thereto within five (5) days from receipt.
7

On December 12, 2003, the 3-member Investigating Committee of the National Executive Council issued a Resolution placing
petitioner on preventive suspension as party Chairman effective immediately and directing him to refrain from exercising official
acts in behalf of the party until and after the Committee finishes its investigation and submits its final recommendation to the National
Executive Council and/or National Congress. The Resolution states that such suspension is deemed necessary to forestall further
dissention within the party members detrimental to the partys image and interest.

39

On December 16, 2003, respondent Aquino submitted his Comment on the Manifestation, claiming that he was not given prior
notice when petitioner Angara unilaterally placed him on indefinite forced leave. Thus, the Advisory, upon which the Manifestation
was based, is a total nullity and must be disregarded by the COMELEC.
9

Subsequently, petitioner Angara converted the Manifestation into a verified petition, docketed as E.M. 03-018. The Petition further
alleges that on December 22, 2003, the National Executive Council met and, 36 out of its 40 members, adopted a
10
Resolution entitled, A Resolution Ratifying and confirming the Covenant of National Unity, the Declaration of Unity Entered Into by
Party Chairman Edgardo J. Angara, and All Acts and Decisions Taken by him to Enforce and Implement the Same; Ratifying and
Confirming All His Other Acts and Decisions and Other Governing Bodies to Preserve the Integrity, Credibility, Unity and Solidarity of
the Party; and, Further Reiterating the Vote of Confidence of the National Executive Council in Support of the Continued Efforts of
Chairman Angara to Unite the Political Opposition.
Among the actions/decision of petitioner Angara which were allegedly ratified and confirmed by the LDP National Executive Council in
said Resolution were: (a) the creation of an opposition coalition Koalisyon ng Nagkakaisang Pilipino (KNP) which later adopted a
Resolution entitled, resolution Choosing Mr. Fernando Poe, Jr. as the Standard Bearer of the KNP for President of the Republic of the
Philippines in the May 10, 2004 National Elections; (b) the decision to place respondent Aquino on indefinite forced leave; and (c) the
filing of the aforementioned LDP Manifestation before the COMELEC.
11

In his Answer to the Petition, respondent Aquino assailed the so-called Resolution of the National Executive Council allegedly
adopted during a meeting on December 22, 2003, claiming that it is unauthorized and illegal because no proper notices have
been sent for the holding of such meeting. Moreover, based on LDP records, only 13 members of the Council have signed and
approved the supposed Resolution.Which means that it was not approved by a majority of those present, taking into account
petitioner Angaras claim that 36 Council members attended the meeting. Thus, the supposed Resolution is void and cannot
ratify/confirm any act of petitioner Angara.
Respondent Aquino further asserted in his Answer that since the 2001 national elections, he, as LDP Secretary General, was
the sole officer who endorsed the Certificates of Nomination of the partys national candidates and who delegated such authority to duly
authorized representatives.
The COMELEC then heard the parties on oral arguments, after which the case was submitted for resolution.
On January 6, 2004, the COMELEC en banc issued the assailed Resolution,

12

the dispositive portion of which reads:

WHEREFORE, premises considered, the petition is GRANTED with LEGAL EQUITY for both Petitioner and Oppositor. The candidates
for President down to the last Sangguniang Bayan Kagawad nominated and endorsed by LDP Chairman Edgardo J. Angara are
recognized by the Commission as official candidates of LDP Angara Wing. The candidates from President down to the last
Sangguniang Bayan Kagawad as nominated and endorsed by the LDP Secretary General Agapito Butz Aquino are recognized as
official candidates of LDPAquino Wing.
Consequently, each faction or wing is entitled to a representative to any election committee to which it may be entitled as created by
the Commission for the May 10, 2004 elections. For the copies of the election returns, theAngara Wing will be entitled to the copies
corresponding to odd number of precincts, that us Precinct Nos. 1, 3, 5, etc., and for the Aquino Wing to the even number of
precincts, that is, Precinct Nos. 2, 4, 6, etc. This is on the assumption that the LDP or as a party within a registered Political Coalition
becomes a recognized and denominated as a Dormant Minority Party under the Election Laws. The two LDP Wings are further
entitled to and be accorded the rights and privileges with corresponding legal obligations under Election Laws.
SO ORDERED.
Claiming that the Resolution was issued with grave abuse of discretion, petitioner Angara filed the instant Petition for Certiorari.
The contending parties raise the issue as who between the petitioner, as LDP Chairman, and the respondent, as LDP Secretary
General, shall nominate its official candidates in the coming national elections.
Undoubtedly, this is to me a purely internal party concern, the determination of which rests solely within the party itself, in the absence
of statutes giving the courts jurisdiction over the same. The party has its own machinery to govern such conflict. Consequently, this
Court cannot step into such private turf and dictate on the LDP party members who should be their official candidate for president.
13
In Sinaca vs. Mula, this Court en banc, through Chief Justice Hilario G. Davide, Jr., ruled:
We also agree with the contention of EMMANUEL (Sinaca) 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.

40

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 (see 26 AM Jur 2d, Elections Sec. 255, 67). 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 (Nielsen v. Kezer, 232 Conn 65, 652 A2d 1013). 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 (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).
Quintessentially, where there us 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 (25 Am Jur 2d, elections Sec. 205, 982). 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 (Tucker v. State
Board of Alcoholic Control, 240 NC 177, 81 SE 2d 399; Brewster v. Massey [Tex Civ App] 232 SW2d 678). (Underscoring ours)
In fine, we should not assume jurisdiction over the petition, the issue here being purely an internal party matter not cognizable by this
Court.
ACCORDINGLY, I vote to DISMISS the instant petition.
EN BANC
G.R. No. 164439

January 23, 2006

JEFFREY L. SANTOS, Petitioner,

vs.
COMMISSION ON ELECTIONS and MACARIO E. ASISTIO III, Respondents.
DECISION
CARPIO, J.:
The Case
1

Before this Court is a petition for certiorari assailing the Resolution of the Commission on Elections ("COMELEC") First Division in
3
SPC No. 04-233 and Resolution No. 7257 of the COMELEC En Banc. The COMELEC promulgated the two Resolutions on 29 June
2004.
The Antecedent Facts
Jeffrey L. Santos ("Santos") and Macario E. Asistio III ("Asistio") were candidates for the position of Councilor for the Second District of
Caloocan City in the 10 May 2004 Elections. On 18 May 2004, the City Board of Canvassers proclaimed Asistio as councilor-elect for
the Second District of Caloocan City. Based on the Canvass of Election Returns and the Statement of Votes, Asistio garnered 45,163
votes and secured the sixth and last slot for the position of Councilor while Santos placed seventh with 44,558 votes.
On 28 May 2004, Santos filed with the COMELEC a Petition, docketed SPC No. 04-233, for Annulment of Proclamation on the Basis of
Erroneous Canvass/Tallies of Votes. Santos alleged that he was a victim of "dagdag-bawas" and that his votes were reduced in the
Statement of Votes while Asistios votes were increased. Santos further alleged that based on the certified true copies of the
4
NAMFRELs election returns as well as the Certificates of Votes submitted by the poll watchers in the Second District of Caloocan City,
he obtained 46,361 votes while Asistio garnered only 45,514 votes. Santos prayed for the nullification of the proclamation of Asistio and
for his declaration as the duly elected Councilor of the Second District of Caloocan City.
The Ruling of the COMELEC First Division
In a Resolution promulgated on 29 June 2004, the COMELEC First Division dismissed SPC No. 04-233 for lack of merit.
The COMELEC First Division ruled that: (1) Santos lack of watchers and counsel during the early stages of the canvassing
proceedings is not a proper ground for the annulment of Asistios proclamation; (2) the documents submitted by Santos, consisting of a
compilation and tabulation of votes which he himself prepared, and which he based on certified true copies of NAMFRELs election
returns and the originals of various Certificates of Votes submitted by the poll watchers, are not admissible in evidence; and (3) Santos

41

should have assailed the proceedings via a pre-proclamation controversy, or through an election protest within ten days after the
proclamation of Asistio, instead of a petition for annulment of proclamation.
On 29 June 2004, or on the same date of the promulgation of the Resolution by the COMELEC First Division, the COMELEC En Banc
promulgated Resolution No. 7257, as follows:
RESOLUTION NO. 7257
(OMNIBUS RESOLUTION ON PENDING CASES)
WHEREAS, in connnection with the May 10, 2004 National and Local Elections, various petitions docketed as Special Actions,
Special Cases and Special Proceeding Cases and other contentious cases were filed with the Office of the Clerk of the
Commission;
WHEREAS, the second paragraph of Sec. 16, Republic Act No. 7166, provides:
"All pre-proclamation cases pending before the Commission shall be deemed terminated at the beginning of the term of office
involved and the rulings of the boards of canvassers concerned shall be deemed affirmed, without prejudice to the filing of a
regular election protest by the aggrieved party. However, proceedings may continue when on the basis of the evidence thus
far presented, the Commission determines that the petition appears meritorious and accordingly issues an order for the
proceeding to continue or when appropriate order has been issued by the Supreme Court in a petition for certiorari."
WHEREAS, the Commission has disposed of the pre-proclamation and other cases brought before it for adjudication, except
those whose disposition requires proceedings extending beyond 30 June 2001;
NOW, THEREFORE, by virtue of its powers under the Constitution, the Omnibus Election Code, Batas Pambansa Blg. 881,
Republic Act Nos. 6646 and 7166, and other election laws, the Commission RESOLVED, as it hereby RESOLVES:
1. All cases which were filed by private parties without timely payment of the proper filing fee are hereby dismissed;
2. All cases which were filed beyond the reglementary period or not in the form prescribed under appropriate
provisions of the Omnibus Election Code, Republic Act Nos. 6646 and 7166 are hereby likewise dismissed;
3. All other pre-proclamation cases which do not fall within the class of cases specified under paragraphs (1) and (2)
immediately preceding shall be deemed terminated pursuant to Section 16, R.A. 7166 except those mentioned in
paragraph (4). Hence, all the rulings of boards of canvassers concerned are deemed affirmed. Such boards of
canvassers are directed to reconvene forthwith, continue their respective canvass and proclaim the winning
candidates accordingly, if the proceedings were suspended by virtue of pending pre-proclamation cases;
4. All remaining pre-proclamation cases, which on the basis of the evidence thus far presented, appear meritorious
and/or are subject of orders by the Supreme Court or this Commission in petitions for certiorari brought respectively
to them shall likewise remain active cases, thereby requiring the proceedings therein to continue beyond 30 June
2004, until they are finally resolved; and
5. All petitions for disqualification, failure of elections or analogous cases, not being pre-proclamation controversies
and, therefore, not governed by Sections 17, 18, 19, 20, 21, and particularly, by the second paragraph of Sec. 6,
Republic Act No. 7166, shall remain active cases, the proceedings to continue beyond June 30, 2004, until the issues
therein are finally resolved by the Commission;
ACCORDINGLY, it is hereby ordered that the proceedings in the cases appearing on the list annexed and made an integral part hereof,
be continued to be heard and disposed of by the Commission.
This resolution shall take effect immediately.

Annexed to Resolution No. 7257 is a list of cases that shall remain active before the COMELEC until their final resolution. SPC No. 04233 is not included in the list.
On 9 July 2004, Santos filed with the COMELEC En Banc a motion for the reconsideration assailing the COMELEC First Divisions
Resolution.

42

On 30 August 2004, Santos filed before this Court a petition for certiorari assailing the 29 June 2004 Resolution of the COMELEC First
Division and Resolution No. 7257 of the COMELEC En Banc.
In his Comment on the petition, Asistio accused Santos of forum shopping. Asistio informed the Court that the COMELEC En Banc only
disposed of Santos motion for reconsideration in its Order of 15 September 2004 when it affirmed the 29 June 2004 Resolution of the
COMELEC First Division. Hence, at the time of the filing of the petition for certiorari before this Court, Santos motion for
reconsideration was still pending before the COMELEC En Banc.
Santos, in his Reply to Asistios Comment, maintains that he is not guilty of forum shopping because the petition before the Supreme
Court only challenges Resolution No. 7257 and not the 29 June 2004 Resolution of the COMELEC First Division. Santos further argues
that by excluding SPC No. 04-233 from the list of cases annexed to Resolution No. 7257, the COMELEC En Banc effectively
terminated the case to its finality. Santos claims that he only learned on 22 July 2004 of the exclusion of SPC No. 04-233 from the list of
cases, after the petition before this Court had been filed. However, he admits that Resolution No. 7257 was published in the Philippine
Daily Inquirer on 30 June 2004.
The Issues
The issues for resolution of this Court are:
1. Whether Santos is guilty forum shopping;
2. Whether the COMELEC First Division committed grave abuse of discretion in dismissing SPC No. 04-233;
3. Whether the COMELEC En Banc committed grave abuse of discretion in excluding SPC No. 04-233 from the list of cases
annexed to Resolution No. 7257.
The Ruling of This Court
The petition has no merit.
Santos is Guilty of Forum-Shopping
Forum shopping is an act of a party, against whom an adverse judgment or order has been rendered in one forum, of seeking and
7
possibly securing a favorable opinion in another forum, other than by appeal or special civil action for certiorari. It may also be the
institution of two or more actions or proceedings grounded on the same cause on the supposition that one or the other court would
8
make a favorable disposition.
In this case, Santos filed the petition for certiorari before this Court during the pendency of his motion for reconsideration with the
COMELEC En Banc. The petition clearly states that he is questioning the two Resolutions issued by the COMELEC: the 29 June 2004
9
Resolution of the COMELEC First Division in SPC No. 04-233 and the COMELEC En Banc Resolution No. 7257. It was only when
Asistio, in his Comment, called the Courts attention that Santos now belatedly asserts that he only seeks to challenge COMELEC
10
Resolution No. 7257 and not the Resolution of the COMELEC First Division.
Santos stated in his petition before this Court that on 9 July 2004, he filed a motion for reconsideration of the COMELEC First Divisions
Resolution. However, he did not disclose that at the time of the filing of his petition, his motion for reconsideration was still pending
before the COMELEC En Banc. Santos did not also bother to inform the Court of the denial of his motion for reconsideration by the
COMELEC En Banc. Had Asistio not called this Courts attention, we would have ruled on whether the COMELEC First Division
committed grave abuse of discretion in dismissing SPC No. 04-233, which is one of the issues raised by Santos in this petition. This act
of Santos alone constitutes a ground for this Courts summary dismissal of his petition.
The Resolution of the COMELEC First Division has attained Finality
Had this Court been apprised at the outset of the pendency of Santos motion for reconsideration before the COMELEC En Banc, it
would have dismissed the petition outright for premature filing. When the COMELEC En Banc finally resolved the motion for
reconsideration, Santos no longer elevated the denial of his motion before this Court. He could no longer do that without exposing his
act of forum shopping. Thus, by Santos inaction, the Order of the COMELEC En Banc is now final and executory.
The Exclusion of SPC No. 04-233 in the List of Cases
Annexed To Resolution No. 7257 has become Moot

43

Contrary to Santos claim, the COMELEC En Banc did not dismiss outright SPC No. 04-233 even though the case was excluded in the
list annexed to Resolution No. 7257. The COMELEC First Division in fact resolved SPC No. 04-233. When Santos filed a motion for
reconsideration, the COMELEC En Banc accepted, considered and disposed of the motion. Hence, the issue of whether the COMELEC
En Banc committed grave abuse of discretion in excluding SPC No. 04-233 in the list of cases annexed to Resolution No. 7257 is now
moot since the COMELEC in fact accepted, considered and disposed of SPC No. 04-233.
WHEREFORE, we DISMISS the petition.
SO ORDERED.
EN BANC
G.R. No. 191084

March 25, 2010

JOSELITO R. MENDOZA, Petitioner,

vs.
COMMISSION ON ELECTIONS AND ROBERTO M. PAGDANGANAN, Respondents.
DECISION
PEREZ, J.:
When the language of the law is clear and explicit, there is no room for interpretation, only application. And if statutory construction be
necessary, the statute should be interpreted to assure its being in consonance with, rather than repugnant to, any constitutional
1
command or prescription. It is upon these basic principles that the petition must be granted.
The factual and procedural antecedents are not in dispute.
Petitioner Joselito R. Mendoza was proclaimed the winner of the 2007 gubernatorial election for the province of Bulacan, besting
respondent Roberto M. Pagdanganan by a margin of 15,732 votes. On 1 June 2007, respondent filed the Election Protest which,
anchored on the massive electoral fraud allegedly perpetrated by petitioner, was raffled to the Second Division of the Commission on
Elections (COMELEC) as EPC No. 2007-44. With petitioners filing of his Answer with Counter-Protest on 18 June 2007, the COMELEC
proceeded to conduct the preliminary conference and to order a revision of the ballots from the contested precincts indicated in said
pleadings.
Upon the evidence adduced and the memoranda subsequently filed by the parties, the COMELEC Second Division went on to render
the 1 December 2009 Resolution, which annulled and set aside petitioners proclamation as governor of Bulacan and proclaimed
respondent duly elected to said position by a winning margin of 4,321 votes. Coupled with a directive to the Department of Interior and
Local Government to implement the same, the resolution ordered petitioner to immediately vacate said office, to cease and desist from
discharging the functions pertaining thereto and to cause a peaceful turn-over thereof to respondent.
Dissatisfied, petitioner filed a Motion for Reconsideration of the foregoing resolution with the COMELEC En Banc. Against respondents
Motion for Execution of Judgment Pending Motion for Reconsideration, petitioner also filed an Opposition to the Motion for Execution
before the COMELEC Second Division. On 8 February 2010, however, the COMELEC En Banc issued a Resolution, effectively
disposing of the foregoing motions/incidents in this wise:
WHEREFORE, in view of the foregoing, the Commission En Banc DENIES the Motion for Reconsideration for lack of merit. The
Resolution of the Commission (Second Division) promulgated on December 1, 2009 ANNULLING the proclamation of JOSELITO R.
MENDOZA as the duly elected Governor of Bulacan and DECLARING ROBERTO M. PAGDANGANAN as duly elected to said Office is
AFFIRMED with modification.
Considering the proximity of the end of the term of office involved, this Resolution is declared immediately executory.
ACCORDINGLY, the Commission En Banc hereby ISSUES a WRIT OF EXECUTION directing the Provincial Election Supervisor of
Bulacan, in coordination with the DILG Provincial Operations Officer to implement the Resolution of the Commission (Second Division)
dated December 1, 2009 and this Resolution of the Commission En Banc by ordering JOSELITO R. MENDOZA to CEASE and DESIST
from performing the functions of Governor of the Province of Bulacan and to VACATE said office in favor of ROBERTO M.
PAGDANGANAN.
Let a copy of this Resolution be furnished the Secretary of the Department of Interior and Local Government, the Provincial Election
Supervisor of Bulacan, and the DILG Provincial Operations Officer of the Province of Bulacan. (Underscoring supplied)

44

On 11 February 2010, petitioner filed before the COMELEC an Urgent Motion to Recall the Resolution Promulgated on February 8,
2010 on the following grounds: (a) lack of concurrence of the majority of the members of the Commission pursuant to Section 5, Rule 3
of the COMELEC Rules of Procedure; (b) lack of re-hearing pursuant to Section 6, Rule 18 of the Rules; and (c) lack of notice for the
promulgation of the resolution pursuant to Section 5, Rule 18 of said Rules. Invoking Section 13, Rule 18 of the same Rules, petitioner
additionally argued that the resolution pertained to an ordinary action and, as such, can only become final and executory after 30 days
from its promulgation.
On 12 February 2010, petitioner filed the instant Petition for Certiorari with an Urgent Prayer for the Issuance of a Temporary
Restraining Order and/or a Status Quo Order and Writ of Preliminary Injunction. Directed against the 8 February 2010 Resolution of the
COMELEC En Banc, the petition is noticeably anchored on the same grounds raised in petitioners urgent motion to recall the same
resolution before the COMELEC. In addition, the petitioner disputes the appreciation and result of the revision of the contested ballots.
In the meantime, it appears that the COMELEC En Banc issued a 10 February 2010 Order, scheduling the case for re-hearing on 15
February 2010, on the ground that "there was no majority vote of the members obtained in the Resolution of the Commission En Banc
promulgated on February 8, 2010." At said scheduled re-hearing, it further appears that the parties agreed to submit the matter for
resolution by the COMELEC En Banc upon submission of their respective memoranda, without further argument. As it turned out, the
deliberations which ensued again failed to muster the required majority vote since, with three (3) Commissioners not taking part in the
voting, and only one dissent therefrom, the assailed 1 December 2009 Resolution of the COMELEC Second Division only garnered
three concurrences.
In their respective Comments thereto, both respondent and the Office of the Solicitor General argue that, in addition to its premature
filing, the petition at bench violated the rule against forum shopping. Claiming that he received the 10 February 2010 Order of the
COMELEC En Banc late in the morning of 12 February 2010 or when the filing of the petition was already underway, petitioner argued
that: (a) he apprised the Court of the pendency of his Urgent Motion to Recall the Resolution Promulgated on 8 February 2010; and, (b)
that the writ of execution ensconced in said resolution compelled him to resort to the petition for certiorari before us.
On 4 March 2010, the COMELEC En Banc issued an Order for the issuance of a Writ of Execution directing the implementation of the 1
December 2009 Resolution of the COMELEC Second Division. While the COMELEC Electoral Contests Adjudication Department
(ECAD) issued the corresponding Writ of Execution on 5 March 2010, the record shows that COMELEC En Banc issued an Order on
the same date, directing the ECAD to deliver said 4 March 2010 Order and 5 March 2010 Writ of Execution by personal service to the
parties. Aggrieved, petitioner filed the following motions with the COMELEC En Banc on 5 March 2010, viz.: (a) Urgent Motion to
Declare Null and Void and Recall Latest En Banc Resolution Dated March 4, 2010; and, (b) Urgent Motion to Set Aside 4 March 2010
En Banc Resolution Granting Protestants Motion for Execution Pending Motion for Reconsideration.
On 8 March 2010, petitioner filed before us a Supplement to the Petition with a Most Urgent Reiterating Motion for the Issuance of a
Temporary Restraining Order or a Status Quo Order. Contending that respondents protest should have been dismissed when no
majority vote was obtained after the re-hearing in the case, petitioner argues that: (a) the 4 March 2010 Order and 5 March 2010 Writ of
Execution are null and void; (b) no valid decision can be rendered by the COMELEC En Banc without the appreciation of the original
2
ballots; (c) the COMELEC ignored the Courts ruling in the recent case of Corral v. Commission on Elections; and (d) the foregoing
circumstances are indicative of the irregularities which attended the adjudication of the case before the Division and En Banc levels of
the COMELEC.
Despite receipt of respondents Most Respectful Urgent Manifestation which once again called attention to petitioners supposed forum
shopping, the Court issued a Resolution dated 9 March 2010 granting the Status Quo Ante Order sought in the petition. With
respondents filing of a Manifestation and Comment to said supplemental pleading on 10 March 2010, petitioner filed a Manifestation
with Motion to Appreciate Ballots Invalidated as Written by One Person and Marked Ballot on 12 March 2010.
The submissions, as measured by the election rules, dictate that we grant the petition, set aside and nullify the assailed resolutions and
orders, and order the dismissal of respondents election protest.
The Preliminaries
More than the justifications petitioner proffers for the filing of the petition at bench, the public interest involved in the case militates
against the dismissal of the pleading on technical grounds like forum shopping. On the other hand, to rule that petitioner should have
filed a new petition to challenge the 4 March 2010 Order of the COMELEC En Banc is to disregard the liberality traditionally accorded
amended and supplemental pleadings and the very purpose for which supplemental pleadings are allowed under Section 6, Rule 10 of
3
the 1997 Rules of Civil Procedure. More importantly, such a course of action would clearly be violative of the injunction against
multiplicity of suits enunciated in a long catena of decisions handed down by this Court.
The Main Matter
Acting on petitioners motion for reconsideration of the 1 December 2009 Resolution issued by the COMELEC Second Division, the
COMELEC En Banc, as stated, initially issued the Resolution dated 8 February 2010, denying the motion for lack of merit and declaring

45

the same resolution immediately executory. However, even before petitioners filing of his Urgent Motion to Recall the Resolution
Promulgated on 8 February 2010 and the instant Petition for Certiorari with an Urgent Prayer for the Issuance of a Temporary
Restraining Order and/or a Status Quo Order and Writ of Preliminary Injunction, the record shows that the COMELEC En Banc issued
the 10 February 2010 Resolution, ordering the re-hearing of the case on the ground that "there was no majority vote of the members
obtained in the Resolution of the Commission En Banc promulgated on February 8, 2010." Having conceded one of the grounds
subsequently raised in petitioners Urgent Motion to Recall the Resolution Promulgated on February 8, 2010, the COMELEC En Banc
4
significantly failed to obtain the votes required under Section 5(a), Rule 3 of its own Rules of Procedure for a second time.
The failure of the COMELEC En Banc to muster the required majority vote even after the 15 February 2010 re-hearing should have
caused the dismissal of respondents Election Protest. Promulgated on 15 February 1993 pursuant to Section 6, Article IX-A and
Section 3, Article IX-C of the Constitution, the COMELEC Rules of Procedure is clear on this matter. Without any trace of ambiguity,
Section 6, Rule 18 of said Rule categorically provides as follows:
Sec. 6. Procedure if Opinion is Equally Divided. When the Commission en banc is equally divided in opinion, or the necessary
majority cannot be had, the case shall be reheard, and if on rehearing no decision is reached, the action or proceeding shall be
dismissed if originally commenced in the Commission; in appealed cases, the judgment or order appealed from shall stand affirmed;
and in all incidental matters, the petition or motion shall be denied.
The propriety of applying the foregoing provision according to its literal tenor cannot be gainsaid. As one pertaining to the election of the
provincial governor of Bulacan, respondents Election Protest was originally commenced in the COMELEC, pursuant to its exclusive
original jurisdiction over the case. Although initially raffled to the COMELEC Second Division, the elevation of said election protest on
motion for reconsideration before the Commission En Banc cannot, by any stretch of the imagination, be considered an appeal. Tersely
put, there is no appeal within the COMELEC itself. As aptly observed in the lone dissent penned by COMELEC Commissioner Rene V.
Sarmiento, respondents Election Protest was filed with the Commission "at the first instance" and should be, accordingly, considered
an action or proceeding "originally commenced in the Commission."
The dissent reads Section 6 of COMELEC Rule 18 to mean exactly the opposite of what it expressly states. Thus was made the
conclusion to the effect that since no decision was reached by the COMELEC En Banc, then the decision of the Second Division should
stand, which is squarely in the face of the Rule that when the Commission En Banc is equally divided in opinion, or the necessary
majority cannot be had, the case shall be re-heard, and if on re-hearing, no decision is reached, the action or proceeding shall be
dismissed if originally commenced in the Commission. The reliance is on Section 3, Article IX(C) of the Constitution which provides:
Section 3. The Commission on Elections may sit En Banc or in two divisions, and shall promulgate its rules of procedure in order to
expedite disposition of election cases, including pre-proclamation controversies. All such election cases shall be heard and decided in
division, provided that motions for reconsideration of decisions shall be decided by the Commission En Banc.
The dissent reasons that it would be absurd that for a lack of the necessary majority in the motion for reconsideration before the
COMELEC En Banc, the original protest action should be dismissed as this would render nugatory the constitutional mandate to
authorize and empower a division of the COMELEC to decide election cases.
We cannot, in this case, get out of the square cover of Section 6, Rule 18 of the COMELEC Rules. The provision is not violative of the
Constitution.
The Rule, in fact, was promulgated obviously pursuant to the Constitutional mandate in the first sentence of Section 3 of Article IX(C).
Clearly too, the Rule was issued "in order to expedite disposition of election cases" such that even the absence of a majority in a
Commission En Banc opinion on a case under reconsideration does not result in a non-decision. Either the judgment or order appealed
from "shall stand affirmed" or the action originally commenced in the Commission "shall be dismissed."
It is easily evident in the second sentence of Section 3 of Article IX(C) that all election cases before the COMELEC are passed upon in
one integrated procedure that consists of a hearing and a decision "in division" and when necessitated by a motion for reconsideration,
a decision "by the Commission En Banc."
What is included in the phrase "all such election cases" may be seen in Section 2(2) of Article IX(C) of the Constitution which states:
Section 2. The Commission on Elections shall exercise the following powers and functions:
xxxx
(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional,
provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal of officials decided by trial courts of
general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

46

Section 2(2) read in relation to Section 3 shows that however the jurisdiction of the COMELEC is involved, either in the exercise of
"exclusive original jurisdiction" or an "appellate jurisdiction," the COMELEC will act on the case in one whole and single process: to
repeat, in division, and if impelled by a motion for reconsideration, en banc.
There is a difference in the result of the exercise of jurisdiction by the COMELEC over election contests. The difference inheres in the
kind of jurisdiction invoked, which in turn, is determined by the case brought before the COMELEC. When a decision of a trial court is
brought before the COMELEC for it to exercise appellate jurisdiction, the division decides the appeal but, if there is a motion for
reconsideration, the appeal proceeds to the banc where a majority is needed for a decision. If the process ends without the required
majority at the banc, the appealed decision stands affirmed. Upon the other hand, and this is what happened in the instant case, if what
is brought before the COMELEC is an original protest invoking the original jurisdiction of the Commission, the protest, as one whole
process, is first decided by the division, which process is continued in the banc if there is a motion for reconsideration of the division
ruling. If no majority decision is reached in the banc, the protest, which is an original action, shall be dismissed. There is no first
instance decision that can be deemed affirmed.
It is easy to understand the reason for the difference in the result of the two protests, one as original action and the other as an appeal,
if and when the protest process reaches the COMELEC En Banc. In a protest originally brought before the COMELEC, no completed
process comes to the banc. It is the banc which will complete the process. If, at that completion, no conclusive result in the form of a
majority vote is reached, the COMELEC has no other choice except to dismiss the protest. In a protest placed before the Commission
as an appeal, there has been a completed proceeding that has resulted in a decision. So that when the COMELEC, as an appellate
body, and after the appellate process is completed, reaches an inconclusive result, the appeal is in effect dismissed and resultingly, the
decision appealed from is affirmed.1avvphi1
To repeat, Rule 18, Section 6 of the COMELEC Rules of Procedure follows, is in conformity with, and is in implementation of Section 3
of Article IX(C) of the Constitution.
Indeed, the grave abuse of discretion of the COMELEC is patent in the fact that despite the existence in its books of the clearly worded
Section 6 of Rule 18, which incidentally has been acknowledged by this Court in the recent case of Marcoleta v.
5
COMELEC, it completely ignored and disregarded its very own decree and proceeded with the questioned Resolution of 8 February
2010 and Order of 4 March 2010, in all, annulling the proclamation of petitioner Joselito R. Mendoza as the duly elected governor of
Bulacan, declaring respondent Roberto M. Pagdanganan as the duly elected governor, and ordering petitioner Joselito R. Mendoza to
cease and desist from performing the functions of the Governor of Bulacan and to vacate said office in favor of respondent Roberto M.
Pagdanganan.1avvphi1
The grave abuse of discretion of the COMELEC is underscored by the fact that the protest that petitioner Pagdanganan filed on 1 June
2007 overstayed with the COMELEC until the present election year when the end of the term of the contested office is at hand and
there was hardly enough time for the re-hearing that was conducted only on 15 February 2010. As the hearing time at the division had
run out, and the re-hearing time at the banc was fast running out, the unwanted result came about: incomplete appreciation of ballots;
invalidation of ballots on general and unspecific grounds; unrebutted presumption of validity of ballots.
WHEREFORE, the petition is GRANTED. The questioned Resolution of the COMELEC promulgated on 8 February 2010 in EPC No.
2007-44 entitled "Roberto M. Pagdanganan v. Joselito R. Mendoza," the Order issued on 4 March 2010, and the consequent Writ of
Execution dated 5 March 2010 are NULLIFIED and SET ASIDE. The election protest of respondent Roberto M. Pagdanganan is hereby
DISMISSED.
SO ORDERED.
JOSE PORTUGAL PEREZ
Associate Justice
WE CONCUR:
*

REYNATO S. PUNO
Chief Justice

ANTONIO T. CARPIO
Acting Chief Justice

**

CONCHITA CARPIO MORALES

Associate Justice

RENATO C. CORONA
Associate Justice
PRESBITERO J. VELASCO, JR.
Associate Justice

47

ANTONIO EDUARDO B. NACHURA

Associate Justice

TERESITA J. LEONARDO-DECASTRO
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 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 were reached in
consultation before the case was assigned to the writer of the opinion of the Court.
ANTONIO T. CARPIO
Acting Chief Justice

Footnotes
*

On official leave.

**

Per Special Order No. 826, Senior Associate Justice Antonio T. Carpio is designated as Acting Chief Justice from March 1730, 2010.
1

Mutuc v. COMELEC, 146 Phil. 798, 805 (1970), citing cases.

G.R. No. 190156, 12 February 2010.

Sec. 6. Supplemental pleadings. Upon motion of a party, the court may, upon reasonable notice and upon such terms as
are just, permit him to serve a supplemental pleading setting forth transactions, occurrences or events which have happened
since the date of the pleading sought to be supplemented. The adverse party may plead thereto within ten (10) days from
notice of the order admitting the supplemental pleading.
4

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.
5

G.R. No. 181377, 24 April 2009.

The Lawphil Project - Arellano Law Foundation

SEPARATE CONCURRING OPINION

CARPIO, Acting C.J.:

48

This case involves the election protest filed with the Commission on Elections (COMELEC) against Joselito R. Mendoza (Mendoza),
who was proclaimed elected Governor of Bulacan in the 14 May 2007 elections. Mendoza garnered 364,566 votes while private
respondent Roberto M. Pagdanganan (Pagdanganan) got 348,834 votes, giving Mendoza a winning margin of 15,732 votes.
After the appreciation of the contested ballots, the COMELEC Second Division deducted a total of 20,236 votes from Mendoza and 616
votes from Pagdanganan. As regards the claimed ballots, Mendoza was awarded 587 ballots compared to Pagdanganans 586 ballots.
Thus, the result of the revision proceedings showed that Pagdanganan obtained 342,295 votes, which is more than Mendozas 337,974
votes. In its Resolution dated 1 December 2009 (Division Resolution), the COMELEC Second Division annulled the proclamation of
Mendoza and proclaimed Pagdanganan as the duly elected Governor of Bulacan with a winning margin of 4,321 votes.
The COMELEC En Banc affirmed the Division Resolution on 8 February 2010. On 4 March 2010, the COMELEC En Banc issued an
Order denying Mendozas Motion for Reconsideration and granting Pagdanganans Motion for Execution of the Division Resolution.
Hence, this petition for certiorari.
I vote to grant the petition solely on the ground of the incomplete appreciation of the contested ballots, and not on the ground that the
decision of the COMELEC Second Division was abandoned, resulting in the dismissal of the election protest, when the COMELEC En
Banc failed to reach a majority decision.
The fundamental reason for granting the petition is the incomplete appreciation of the contested ballots. Section 211 of Batas
Pambansa Blg. 881 (BP 881), otherwise known as the Omnibus Election Code of the Philippines, states that "[i]n the reading and
appreciation of ballots, every ballot shall be presumed to be valid unless there is a clear and good reason to justify its rejection." It is
therefore imperative that extreme caution be exercised before any ballot is invalidated, and in the appreciation of ballots, doubts should
1
be resolved in favor of their validity. For after all, the primary objective in the appreciation of ballots is to discover and give effect to the
2
intention of the voter and, thus, preserve the sanctity of the electoral process.
In this case, the COMELEC invalidated the contested ballots in favor of Mendoza mainly on the grounds of written by one person
(WBO) and marked ballots (MB). However, as pointed out by Commissioner Sarmiento, only the general objections were mentioned
in the ballots invalidated on the ground of WBO, without clearly and distinctly indicating the specifics or details of the WBO
objections. Such generalization falls short of the mandate provided under Section 1, Rule 18 of the COMELEC Rules of Procedure
which states that "[e]very decision shall express therein clearly and distinctly the facts and the law on which it is based."
3

Section 2(d) of Rule 14, which should apply by analogy to this case, provides:
(d) On Pair or Group of Ballots Written by One or Individual Ballots Written By Two When ballots are invalidated on the ground of
written by one person, the court must clearly and distinctly specify why the pair or group of ballots has been written by only one
person. The specific strokes, figures or letters indicating that the ballots have been written by one person must be specified. A
simple ruling that a pair or group of ballots has been written by one person would not suffice. The same is true when ballots are
excluded on the ground of having been written by two persons. The court must likewise take into consideration the entries of the
Minutes of Voting and Counting relative to illiterate or disabled voters, if any, who cast their votes through assistors, in determing the
validity of the ballots found to be written by one person, whether the ballots are in pairs or in groups;" (Emphasis supplied)
The ruling of the COMELEC fails to specify the "strokes, figures or letters indicating that the ballots were written by one person."
The COMELEC merely made this omnibus ruling: "These ballots are void for being written by one person. The similarity in the
handwriting style/strokes is more real than apparent. The dents and slants used in writing the names of the candidates prove that these
pairs of ballots were written by one person." Such a ruling is clearly insufficient.
Furthermore, the ballots were invalidated without consulting the Minutes of Voting to determine the existence of incapacitated
and illiterate voters in the voting precincts. The presence of illiterate and incapacitated voters would likely account for some ballots
to appear as written by one person due to assisted voting, which is authorized under Section 196 of BP 881, thus:
SEC. 196. Preparation of ballots for illiterate and disabled persons. A voter who is illiterate or physically unable to prepare the ballot
by himself may be assisted in the preparation of his ballot by a relative, by affinity or consanguinity within the fourth civil degree or if he
has none, by any person of his confidence who belong to the same household or any member of the board of election inspectors,
except the two party member: Provided, That no voter shall be allowed to vote as illiterate or physically disabled unless it is so indicated
in his registration record: provided, further, That in no case shall an assistor assist more than three times except the non-party member
of the board of election inspectors. The person thus chosen shall prepare the ballot for the illiterate or disabled voter inside the voting
booth. The person assisting shall bind himself in a formal document under oath to fill out the ballot strictly in accordance with the
instructions of the voter and not to reveal the contents of the ballot prepared by him. Violation of this provision shall constitute an
election offense.
4

In Delos Reyes v. Commission on Elections, the Court ruled that in the evaluation of ballots contested on the ground of WBO, the
COMELEC must first verify from the Minutes of Voting or the Computerized Voters List for the presence of assisted voters in
the contested precincts and take this fact into account; otherwise, the appreciation of ballots is incomplete. The Court held:

49

Indeed, even if it is patent on the face of the ballots that these were written by only one person, that fact alone cannot invalidate said
ballots for it may very well be that, under the system of assisted voting, the latter was duly authorized to act as an assistor and prepare
all said ballots. To hinder disenfranchisement of assisted voters, it is imperative that, in the evaluation of ballots contested on the
ground of having been prepared by one person, the COMELEC first verify from the Minutes of Voting or the Computerized Voters List
for the presence of assisted voters in the contested precincts and take this fact into account when it evaluates ballots bearing similar
handwritings. Omission of this verification process will render its reading and appreciation of ballots incomplete.
In the present case, COMELECS appreciation of the 44 contested ballots was deficient for it referred exclusively to said ballots without
consulting the Minutes of Voting or the Computerized Voters List to verify the presence of assisted in the contested precincts.
Thus, COMELEC acted with grave abuse of discretion in overturning the presumption of validity of the 44 ballots and declaring them
5
invalid based on an incomplete appreciation of said ballots.
6

Likewise, in De Guzman v. Commission on Elections, the Court held:

As regards the 7 ballots cast in favor of De Guzman which were rejected as written-by-one in Precinct 27A Mabini, the COMELEC
should have considered the data reflected in the Minutes of Voting Precinct 27A Mabini. It shows the existence of 24 illiterate or
physically disabled voters which necessitated voting by assistors pursuant to Section 196 of B.P. Blg. 881 which does not allow an
assistor to assist more that three times except the non-party members of the board of election inspectors. There is no showing that the
7 rejected ballots is the same as that appearing in the Minutes of Voting. All of the 7 assailed ballots were cast in favor of De Guzman.
Consequently, four ballots should be appreciated in his favor it being reasonably presumed that the identically written ballots were
prepared by the assistor, not only for three illiterate or physically disabled voters but also for himself. Hence, added to the 38 votes, De
7
Guzman won the election by 42 votes.
8

In this case, not just seven (7) or forty-four (44) ballots were invalidated, but thousands of ballots were invalidated on the ground of
WBO without taking into account the existence of illiterate and incapacitated voters in the affected voting precincts as may be shown in
the Minutes of Voting or the Computerized Voters List. Surely, such patent omission is so grave as would put into doubt the reliability of
the findings and the conclusion based thereon by the COMELEC.
The COMELEC likewise did not specifically indicate the reasons for the invalidation of the contested ballots on the ground of
marked ballots (MB). Most of the rulings in the Division Resolution in invalidating on the ground of MB merely states that "distinctive
markings on each ballot which serves no other purpose but to identify the ballot and or the voter himself." Such general statement,
which does not indicate the distinctive markings found on the ballots, is not sufficient considering that there are marks that cannot be
considered as signs to identify a ballot which would warrant its invalidation. Thus, pertinent provisions of Section 211 of BP 881 state:
SEC. 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:
xxxx
21. Circles, crosses or lines put on the spaces on which the voter has not voted shall be considered as signs to indicate his desistance
from voting and shall not invalidate the ballot.
22. Unless it should clearly appear that they have been deliberately put by the voter to serve as identification marks, commas,
dots, lines, or hyphens between the first name and surname of a candidate or in other parts of the ballot, traces of the letter
"T", "J", and other similar ones, the first letters or syllables of names which the voter does not continue, the use of two or
more kinds of writing and unintentional or accidental flourishes, strokes, or strains, shall not invalidate the ballot. (Emphasis
supplied)
Indeed, no ballot should be discarded as marked ballot unless clear and sufficient reasons justify that action and any doubt must be
9
resolved in favor of the validity of the ballot. As held by the Court in Farin v. Gonzales:
We must re-affirm the rule that no ballot shall be discarded as marked unless its character as such is unmistakable.
Distinction should be made between marks that were accidentally, carelessly or innocently made, and those designedly
placed thereon by the voter with a view to possible identification of the ballot, which, therefore, invalidates it. In the absence of
any circumstance showing that the intention of the voter to mark the ballot is unmistakable, or of any evidence aliunde to show that the
10
words were deliberately written to identify the ballot, the ballot should not be discarded. (Emphasis supplied)
Thus, in order for a ballot to be considered marked, it must clearly appear that the marks or words found on the ballot were deliberately
11
placed thereon to serve as identification marks which therefore invalidate it.

50

However, I disagree with the ponencias ruling that the decision of the COMELEC Second Division was abandoned, resulting in the
dismissal of the election protest, when the COMELEC En Banc failed to reach a majority decision. The COMELEC Second Division had
12
jurisdiction to decide this election contest under Section 3, Article IX-C of the Constitution. The failure of the COMELEC En Banc to
reach a majority decision on the motion for reconsideration operated to affirm the decision of the COMELEC Second Division.
Accordingly, I vote to GRANT the petition on the sole ground that the COMELEC En Banc committed grave abuse of discretion when
the En Banc, just like the COMELEC Second Division, failed to make a complete appreciation of the contested ballots.
ANTONIO T. CARPIO
Acting Chief Justice
EN BANC

G.R. No. 123648 December 15, 1997

ABDULLAH A. JAMIL, petitioner,
vs.
THE COMMISSION ON ELECTIONS, (New) MUNICIPAL BOARD OF CANVASSERS OF SULTAN GUMANDER and ALINADER
BALINDONG, respondents.

KAPUNAN, J.:
Petitioner Abdullah A. Jamil and private respondent Alinader Balindong were among the mayoralty candidates in the Municipality of
Sultan Gumander, Lanao del Sur, during the May 8, 1995 elections. Said municipality had a total of thirty-two (32) precincts.
On May 20, 1995, during the canvassing of the election returns by the Municipal Board of Canvassers (MBC) headed by Saadia
Sansarona, private respondent objected to the inclusion of four (4) election returns from Precinct Nos. 5, 10-1, 20-1 and 20 on the
following grounds: a) Precinct Nos. 5 and 10-1 the election returns were prepared under duress; b) Precinct No. 20-1 the election
return was spurious, the Chairman, Poll Clerk and Third Member of the Board of Election Inspectors did not sign the election return; c)
Precinct No. 20-the canvassed election return was not an authentic copy as the original was missing.
On May 23, 1995, the Sansarona MBC issued its "rulings" on three (3) of the said objections, thus:
WE, the undersigned Chairman and Members of the Board of Canvassers of Sultan Gumander, after deliberating on
the objection to the inclusion/exclusion of
ELECTION RETURN(S) NUMBER 661229 OF PRECINCT NUMBER 5
of the City/Municipality of Sultan Gumander and admitting the supporting evidence consisting of
EXHIBIT "A" Affidavit of Basir Sarip for petitioner; and
EXHIBIT "1" Affidavit of Basir Sarip withdrawing his previous affidavit
"2." Affidavit of Malic Solaiman for oppositor,
hereby RULE as follows:
It created confusion on the part of the Board on whom to rely on the two (2) contradicting affidavits of Basir Sarip,
Chairman of Prec. No. 5, hence the election return is hereby set aside pursuant to paragraph E, Sec. 33 Comelec
1
Res. No. 2756 for further investigation.
xxx xxx xxx

51

WE, the undersigned Chairman and Members of the Board of Canvassers of Sultan Gumander, after deliberating on
the objection to the inclusion/exclusion of
ELECTION RETURN(S) NUMBER 661236
OF PRECINCT NUMBER 10-1
of the City/Municipality of Sultan Gumander, and admitting the supporting evidence consisting of
EXHIBIT "A-" Affidavit of Monaintan Maruhom
B- ER661236
C- List of BEIs for petitioner; and
EXHIBIT "1-" ER 661236
2- Affidavit of Liling Adapun
3- Affidavit of Farida Jamil for oppositor,
hereby RULE as follows:
The election Return is hereby set aside to go deeper into contradicting testimonies of the Chairman of Prec. No. 10-1
2
and watchers of the respondent.
xxx xxx xxx
WE, the undersigned Chairman and Members of the Board of Canvassers of Sultan Gumander, Lasur, after
deliberating on the objection to the inclusion/exclusion of
ELECTION RETURN(S) NUMBER 661251
OF PRECINCT NUMBER 20-1
of the City/Municipality of Sultan Gumander Lanao Del Sur, and admitting the supporting evidence consisting of
EXHIBIT "A-" Affidavit of Basher Randa
B- Appointment of Basher Randa
C- ER No. 661251 for petitioner; and
EXHIBIT "1-" ER 661251
2- Affidavit of Baingcong Mandagla
3- Affidavit of Azisa Abdullah for oppositor,
hereby RULE as follows:
This Election returns is set aside and summons will be issued for the two (2) BEIS who failed to affix their signatures
and explain the alleged increase of votes of a candidate and the use of unauthorized envelope without seal
3
containing ER and thereafter a ruling on the matter shall be rendered.
No ruling was made with respect to Election Return No. 661252 of Precinct 20.

52

On May 25, 1995, the composition of the MBC was changed. Saadia Sansarona was replaced by Casan T. Macadato as Chairman of
the Board.
On May 30, 1995, the Macadato MBC issued its ruling anent Election Return No. 661252 of Precinct No. 20 as follows:
WE, the undersigned Chairman and Members of the Board of Canvassers of Sultan Gumander, after deliberating on
the objection to the inclusion/exclusion of
ELECTION RETURN(S) NUMBER 661252
OF PRECINCT NUMBER 20
of the City/Municipality of Sultan Gumander, and admitting the supporting evidence consisting of EXHIBIT "__"
for
petitione
r; and
EXHIBIT "_"
for
opposito
r,
hereby RULE as follows:
To deny the petition for the exclusion of Election Return No. 661252 for being without any factual and legal basis.
And that Comelec Resolution No. 2756, Sec. 24, says that when an Election Return is lost and destroyed, The Board
4
of Canvassers upon prior authority from the Commission may use any of the authentic copies of said return.
On June 1, 1995, the Macadato Board convened and resumed its canvass using the Municipal Treasurer's copy of the election return
from Precinct No. 20.
Said board, likewise, conducted its investigation with respect to the returns from Precinct Nos. 5, 10-1 and 20-1. Said investigation
yielded the report dated June 5, 1995, to wit:
MEMORANDUM FOR: The Honorable Chairman Commission on
Elections Manila
FROM: Acting Election Officer Sultan Gumander,
Lanao del Sur
DATE: June 5, 1995
S U B J E C T: INVESTIGATION REPORT
Respectfully forwarded to the Honorable Chairman, Commission on Elections the result of investigation in connection
with Precinct Nos. 5, 10-1, 20 and 20-1.
The previous Municipal Board of Canvasser composed of Saadia Sansarona, Saripali Benito and Ismael Maulay
rendered rulings in the election returns in Precinct Nos. 5, 10-1 and 20-1 as follows:
Precinct No. 5, ER No. 661229: SET ASIDE
a) Mr. Basir Sarip, Chairman, BEI executed two affidavits. In first affidavit executed before Atty.
Disalo, Mr. Sarip said that he was instructed to accomplish the election return to make sure that
Mayor Abdullah Amatonding will win in the precinct. In second affidavit executed before Atty.
Mortaba, Mr. Sarip stated that he was forced to sign the first affidavit so he disown and withdraw

53

the first affidavit. Mr. Sarip also stated in the second affidavit that the election in Precinct No. 5 is
clean and the election return is the true result of the election.
b) On June 3, 1995, Mr. Sarip personally appeared BEFORE me and executed sworn statement
stating that he was forced by Taratingan Balindong to sign the first affidavit at Banday, Malabang,
Lanao del Sur and was not allowed to read it. Mr. Sarip totally disowned the contents of the first
affidavit. Mr. Sarip also requested that his second affidavit contains the truth that is that the election
in Precinct 5 is clean and orderly and the election returns contains the true result of election in
Precinct No. 5 and said election returns should be included in the canvass.
Recommendation: INCLUDE ER NO. 661229 IN THE CANVASS OF VOTES IN SULTAN GUMANDER.
Precinct No. 10-1, ER No. 661236: SET ASIDE
a) Mrs. Monaintan Marohom, Chairman, BEI executed an affidavit that they were ordered by Radia
Balindong, Election Assistant to make sure Mayor Abdullah Amatonding win in our precinct with
threat that something will happen if they do not follow.
b) A representative of Mayor Jamil submitted to me copy of another affidavit of Mrs. Monaintan
Marohom stating that she was forced to sign an affidavit at the house of Mida Balindong at Campo
Muslim, Malabang by her cousin Yasser Macadato and she was not able to read it. Mrs. Marohom
stated that her first affidavit which she signed out of fear because of the threat of Yasser Macadato
is false because the truth is that the election in Precinct 10-1 is clean, orderly and honest.
c) The signature of Mrs. Marohom in her first affidavit is different from her signature found in the
election returns, while her signature in the second affidavit executed before Atty. Mortaba is similar
or identical with her signature in the election returns.
Recommendation: INCLUDE ER NO. 661236 IN THE CANVASS
OF VOTES IN SULTAN GUMANDER NO
LEGAL BASIS TO EXCLUDE THE ELECTION
RETURNS WITH MERE AFFIDAVIT OF ONE
OF THE THREE MEMBERS OF THE BEI.
Precinct No. 20-1, ER No. 661251: SET ASIDE RULING TO BE
RENDERED AFTER BEI
ARE SUMMONED
a) Mr. Basher Randa executed an affidavit that he is the Chairman of the BEI in Precinct No. 20-1
but that when he went to the MSU Grandstand, the election return is already being prepared by
unauthorized persons.
b) Mrs. Baingcong Mandagla who appeared in the election returns to be the Chairman of the BEI
executed an affidavit that she is the Poll Clerk but that Mr. Basir Randa did not show up when the
election returns was to be prepared so she was designated by the COMELEC Office to act as
Chairman. The appointment of Mrs. Mandagla shows the notation for her to serve as Chairman;
c) The Poll Clerk, Monette Saripada and the third member, Azisa Abdullah did not sign the election
returns;
d) On May 26, 1995, Monette Saripada and Azisa Abdullah appeared before the MBC and signed
the election returns in the presence of the watchers of various candidates and nobody objected to
the signing of the election returns which affirm that they are the persons who appeared in the
election returns to be the Poll Clerk and Third Member. The signing was photographed by the
representatives of Mayor Jamil.
Recommendation: INCLUDE ER NO. 661251 IN THE CANVASS OF VOTES IN SULTAN GUMANDER.
The investigation was conducted because the previous MBC merely SET ASIDE the three election returns for further
Investigation. The newly constituted MBC has to investigate for the guidance of higher authorities.

54

(Sgd.)
CASAN T. MACADATO
5
Chairman, Municipal Board of Canvassers
On June 8, 1995, private respondent filed an appeal to the Commission on Elections (COMELEC) from the ruling dated May 30, 1995
of the Macadato Board denying his petition for exclusion of Election Return No. 661252 of Precinct No. 20. The case was docketed as
6
SPC No. 95-271.
On the same day, petitioner filed an appeal to the COMELEC challenging the "rulings" dated May 23, 1995 of the Sansarona MBC
setting aside for further investigation or action with respect to the election returns from Precinct Nos. 5, 10-1 and 20-1. Petitioner
7
maintained that the contested election returns reflect the true will of the electorate. This case was docketed as SPC No. 95-272.
On June 26, 1995, while the two (2) cases were still pending in the COMELEC, the Macadato Board proclaimed petitioner Abdullah
8
Jamil and other winning candidates as the candidates obtaining the highest number of votes in the preceding election.
On July 11, 1995, the Second Division of the COMELEC issued the following order, viz:
Considering the Omnibus Resolution on Pending Cases of the Commission en banc promulgated on June 29, 1995,
items 2 and 3 of which read:
2. All cases which were filed beyond the reglementary period or not in the form prescribed under appropriate
provisions of the Omnibus Election Code, Republic Acts No. 6646 and 7166 are hereby likewise dismissed;
3. All other pre-proclamation cases which do not fail within the class of cases specified in paragraphs (1) and (2)
immediately preceding shall be deemed terminated pursuant to Sec. 16, R.A. 7166. Hence, all the rulings of board of
canvassers concerned are deemed affirmed. Such board of canvassers are directed to reconvene forthwith, continue
their respective canvass and proclaim the winning candidates accordingly, if the proceedings were suspended by
virtue of pending pre-proclamation cases;
the Commission (Second Division), hereby ORDERS to note the report of the acting Election Officer contained in
SPC No. 95-271 and to consider SPC No. 95-272 TERMINATED.
WHEREFORE, the Municipal Board of Canvassers of Sultan Gumander, Lanao del Sur is hereby DIRECTED to
reconvene and proclaim the winning candidate for mayor of the municipality of Sultan Gumander, Lanao del Sur.
SO ORDERED.

On July 17, 1995, the Macadato Board submitted its report implementing the July 11, 1995 Order of the Second Division of the
COMELEC. Said report reads:
Respectfully forwarded to the Honorable Chairman, Commission on Elections, Manila, thru the Honorable
Commissioner In Charge, Region XII, the compliance of the board of canvassers with the Order dated July 11, 1995
of the Honorable Second Division, Commission on Elections in SPC Nos. 95-271 and 95-272 directing the board of
canvassers to reconvene and proclaim the winning candidate for Mayor of Sultan Gumander, Lanao del Sur:
A. The previous board of canvasser headed by Saadia Sansarona SET ASIDE FOR FURTHER INVESTIGATION the
election returns in Prec. Nos. 5, 10-1 and 20-a of Sultan Gumander, Lanao del Sur. The reconstituted board of
canvassers conducted an investigation and found no defect in the election returns in the three precincts and
submitted its INVESTIGATION REPORT dated June 5, 1995 recommending the INCLUSION OF THE ELECTION
RETURNS IN PREC. NOS. 5 (661229), 10-1 (661236) and 20-1 (661252) in the canvass, copies of the investigation
report are attached as ANNEXES "A" to "A-1" hereof.
B. In addition to its report, the board of canvassers as respondent in SPC No. 95-272 submitted its ANSWER dated
June 9, 1995 indicating its findings in the investigation as shown by the INVESTIGATION REPORT, and also
submitted as part of its answer the SWORN STATEMENT dated June 6, 1995 of MS. MONAINTAN MAROHOM,
Chairman of Prec. No. 10-1 executed before the Chairman of the board of canvassers stating under oath that the
election returns in said precinct is genuine and authentic and contains the true and correct votes of the candidates,
copies of the Answer are attached as ANNEXES "B" to "B-3" hereof and the sworn statement of Ms. Marohom as
ANNEXES "C" to "C-1" hereof.

55

C. On June 12, 1995, MR. BASIR SARIP, Chairman of Prec. No. 5 and MS. MONAINTAN MAROHOM, Chairman of
Prec. No. 10-1 personally appeared before the HON. REMEDIOS SALAZAR-FERNANDO, Presiding Commissioner
of the Second Division, COMELEC and in their SWORN STATEMENTS dated June 13, 1995 affirmed before the
Presiding Commissioner, in the presence of Atty. Alioden Dalaig and Atty. Jacob Malik, that the election returns in
Prec. Nos. 5 and 10-1 respectively were genuine and authentic and contain the true and correct votes of the
candidates, that their affidavits that were submitted by candidate Balindong to the board of canvassers was signed by
them against their will for fear of their lives and they DISOWNED or WITHDRAW all statements contained therein the
same being false, and the board was furnished with copies of said sworn statements, copies thereof are attached as
ANNEXES "D" to "D-1" (SS of Basir) and "E" to "E-1" (SS of Marohom) hereof.
D. In the case of Prec. No. 20-1, the two members of the BEI who failed to sign the election returns although they
have thumbmarked the same, appeared before the board of canvassers and signed the election returns in the
presence of the watchers of the candidates, photographs of the signing was submitted to the Honorable Commission
through SPC No. 95-272 as part of the evidence therein.
E. Due to the above developments, particularly the fact that Mr. Basir Sarip, Chairman of Prec. No. 5 and Ms.
Monaintan Marohom, Chairman of Prec. No. 10-1, appeared before the Honorable Presiding Commissioner of the
Second Division and affirmed before her the authenticity, genuineness and accuracy of the election returns in Prec.
Nos. 5 and 10-1, the fact that the two members of the BEI in Prec. No. 20-1, signed the election returns, and that the
investigation of the board of canvassers shows that the election returns in the three precincts has no defect, the
board of canvassers in accordance with its sworn duty has to include in the canvass the election returns in Prec. Nos.
5, 10-1 and 20-1.
F. After including in the canvass the election returns in Prec. Nos. 5, 10-1 and 20-1, it shows that the votes in Prec.
No. 10 (should be 20) which is the subject of appeal in SPC No. 95-271 will no longer affect the results of the
elections in Sultan Gumander, Lanao del Sur. Accordingly, the board of canvassers PROCLAIMED CANDIDATE
ABDULLAH AL JAMIL ON JUNE 26, 1995 AS THE DULY ELECTED MAYOR of Sultan Gumander, Lanao del Sur,
copies of the Certificate of Canvass of Votes and Proclamation and the MINUTES OF THE PROCEEDINGS OF THE
BOARD are attached as ANNEXES "F" and "G" to "G-1" respectively.
G. The certificate of canvass of votes and proclamation duly signed, thumbmarked and sealed in the prescribed
envelope was submitted to the Records and Statistics Division, COMELEC on July 5, 1995, copy of the certificate of
appearance of Casan Macadato, Chairman of the board when he submitted the proclamation paper is attached as
ANNEX "H" hereof.
In view of the above, the board of canvassers have complied with its duty to proclaim the winning candidate for Mayor
of Sultan Gumander in accordance with the Order dated July 11, 1995.
(Sgd.) CASAN T. MACADATO (Sgd.) SARIPALI BENITO
Chairman Vice Chairman
(SGD.) ESMAIL MAULAY
10
Secretary
On July 24, 1995, private respondent filed an urgent motion before the COMELEC to annul the proclamation of petitioner as the winning
candidate for mayor on the ground that the proclamation was without the authority of the COMELEC, and to constitute a new Board of
11
Canvassers.
On August 24, 1995, the Second Division of the COMELEC, proceeding from the premise that the election returns from Precincts Nos.
5, 10-1 and 20-1 were excluded by the Sansarona MBC applying the Omnibus Resolution of the COMELEC dated June 29,
12
1995, issued an order disposing thereby:
. . . the Commission (Second Division) RESOLVED, as it hereby RESOLVES to ANNUL the proclamation of
petitioner Abdullah A. Jamil made by the Municipal Board of Canvassers of Sultan Gumander, Lanao del Sur on June
10, 1995 and June 26, 1995, respectively, it being contrary to law and jurisprudence; and, to RELIEVE the Municipal
Board of Canvassers of Sultan Gumander, Lanao del Sur, chaired by Mr. Casan Macadato of its duties and functions
as such.
ACCORDINGLY, the Regional Election Director, Region XII, Cotabato City, is hereby DIRECTED to constitute a new
Municipal Board of Canvassers for the Municipality of Sultan Gumander, Lanao del Sur, which shall forthwith
RECONVENE and PROCLAIM candidate ALINADER B. ALINDONG as the lawfully elected Mayor of the Municipality
of Sultan Gumander, Lanao del Sur.

56

SO ORDERED.

13

On August 31, 1995, petitioner filed an Urgent Ex-Parte Motion to Suspend Implementation of the Order dated August 24, 1995.

14

On the same day, petitioner likewise filed his Motion for Reconsideration (With Prayer to Suspend Implementation of the Order dated
15
August 24, 1995).
On September 5, 1995, pursuant to the August 24, 1995 Order of the COMELEC, the newly constituted Municipal Board of
Canvassers, this time headed by Darangina Cariga, proclaimed private respondent Alinader Balindong winner in the election after
16
having obtained a total of 2,499 votes.
On September 7, 1995, the COMELEC en banc issued the following order, viz:
Acting on the URGENT EX-PARTE MOTION filed on August 31, 1995 by petitioner-appellant through counsel
praying that an order be immediately issued, directing the newly constituted Municipal Board of Canvassers to
suspend the implementation of the Order of August 24, 1995, the Commission en banc, considering that a motion for
reconsideration was filed and that the entire records of these cases were already elevated to it, hereby orders the
newly constituted Municipal Board of Canvassers of Sultan Gumander, Lanao del Sur to suspend the implementation
of the order of the Second Division dated August 24, 1995 until further orders.
SO ORDERED.

17

On February 12, 1996, the COMELEC en banc by a vote of 3 - 3, issued a Resolution which reads in full:
The record shows that the Commission deliberated on the motion for reconsideration that petitioner appellant
Abdullah A. Jamil (In SPC No. 95-272) filed on August 31, 1995, seeking to set aside the resolution of the Second
Division promulgated on August 24, 1995, authorizing the reconstituted municipal board of canvassers, Sultan
Gumander, Lanao del Sur, to proclaim candidate Alinader Balindong as the lawfully elected mayor of the said
municipality.
Resolving the motion, the Commission members reached a consensus to deny the petitioner Jamil's motion for
reconsideration and to affirm the appealed order of the Second Division, dated August 24, 1995.
Accordingly, the Commission assigned Commissioner Gorospe to prepare the corresponding resolution, which he
did, and to which six (6) Commissioners had affixed their signatures. When the resolution was referred to
Commissioner Maambong, he asked for time to study the same and to prepare his dissent, without asking for a
reconsultation. He prepared a dissenting opinion that he circulated to all the Commissioners.
Before the Commission could promulgate the majority resolution, four (4) Commissioners, namely Commissioners
Remedios A. Salazar-Fernando, Graduacion A. Reyes Claravall, Julio F. Desamito and Teresita Dy-Liacco Flores,
indicated their desire to re-study the case. Thereafter, Commissioners Fernando and Flores indicated that they would
vote to set aside the resolution of the second division and would join in the opinion of Commissioner Maambong.
However, Commissioner Fernando prepared her own separate opinion. When the case was referred to
Commissioner Gorospe, he voted to affirm the appealed resolution and to maintain his ponencia. Chairman Pardo
and Commissioner Desamito voted to continue their concurrence to the ponencia. Unfortunately, before
Commissioner Claravall could enter her final vote, she suffered a stroke from which she did not recover and passed
away on January 14, 1996.
Consequently, a this point, the members of the Commission are evenly divided in their opinion, and pursuant to the
Comelec Rules of Procedure, the Commission re-heard the case and deliberated anew thereon After such re-hearing
and deliberation, the members was still evenly divided in opinion.
WHEREFORE, the Chairman hereby certifies that the members of the Commission were evenly divided in their
opinion on petitioner-appellant Jamil's motion for reconsideration and pursuant to Rule 18, Section 6, Comelec Rules
of Procedure, the motion shall be DENIED.
ACCORDINGLY, the Commission hereby DENIES the motion for reconsideration that petitioner-appellant Abdullah
A. Jamil filed on August 31, 1995, and AFFIRMS the resolution of the Second Division, promulgated on August 24,
1995.
This resolves all the pending incidents in the above cases.

57

SO ORDERED.

18

Hence, the present petition for certiorari brought before us contending that the COMELEC en banc committed grave abuse of discretion
in issuing its February 12, 1996 Order because:
(a) Majority of the Commissioners-Members of the Second Division had already decided to reverse
19
their August 24, 1995 Order.
(b) Petitioner's proclamation was based on complete canvass of returns while the proclamation of
private respondent was based on incomplete returns. Thus, the proclamation of the petitioner
20
should be sustained and the proclamation of the private respondent must be annulled.
(c) The vote of Commissioner Claravall should have been considered in favor of the petitioner
considering that, before she died, she had already expressed her opinion in favor of the
21
petitioner.
From the foregoing enumeration of alleged errors committed by respondent COMELEC, we are to resolve two issues, namely: First,
which of the two (2) proclamations made by two (2) different MBCs in Sultan Gumander, Lanao del Sur is valid the proclamation of
petitioner Abdullah Jamil dated June 26, 1995 by the Macadato Board or the proclamation of private respondent Alinader Balindong
dated September 5, 1995 by the Cariga Board; Second, whether the manner and procedure by which the members of respondent
COMELEC voted in the instant case was in accord with their own Rules of Procedure.
I
Petitioner Jamil insists that his proclamation by the Macadato Board as winner in the mayoralty race of the said municipality was based
on a complete canvass, all election returns having been included therein, while the proclamation of private respondent Balindong by the
Cariga Board was based merely on an incomplete canvass, as the three (3) election returns from Precinct Nos. 5, 10-1 and 20-1 were
22
excluded from the canvass.
We are not persuaded.
It may be recalled that after the May 8, 1995 elections, and during the canvass of the election returns by the MBC of Sultan Gumander,
Lanao del Sur headed by Saadia Sansarona, private respondent Balindong objected to the inclusion of four (4) election returns from
Precinct Nos. 5, 10-1, 20-1 and 20 for various reasons already stated. Acting on the objections, the Sansarona MBC issued its "rulings"
on May 23, 1995 as follows: "setting aside" the election returns from Precinct No. 5 for "further investigation;" "setting aside" the returns
from Precinct No. 10-1 "to go deeper into the contradicting testimonies of the Chairman of Precinct No. 10-1 and the watchers of the
respondent;" and "setting aside" the election returns from Precinct No. 20-1 in order to "summon the two BEIs who failed to affix their
signatures and explain the alleged increase of votes of a candidate and the use of unauthorized envelope without seal containing the
23
Election Returns and thereafter a ruling on the matter shall be rendered." No ruling was made on the questioned election return from
Precinct No. 20.
24

It is readily observed that the May 23, 1995 issuances cannot be considered as "rulings" within the contemplation of law; they are not
definitive rulings of exclusion by the MBC because they merely deferred the inclusion of the election returns pending "further
investigation." Hence, they are not "rulings" of the board of canvassers that are deemed affirmed within the purview of Comelec's
25
Omnibus Resolution on pending cases dated June 29, 1995.
A few days later, Saadia Sansarona was replaced by Casan Macadato as chairman of the MBC. Macadato, after discovering that there
were no rulings made on the disputed election returns, decided to conduct further investigation or action as recommended in the
Sansarona MBC "rulings." On May 30, 1995, the Macadato MBC issued a ruling denying the exclusion of the election returns from
Precinct No. 20. Thereafter, Macadato submitted his investigation report dated June 5, 1995, which he alone signed, to the COMELEC
simply recommending the inclusion of the election returns from Precincts 5, 10-1 and 20-1 without issuing a positive ruling thereon as
the facts and circumstances would warrant.
As a consequence of the foregoing, private respondent Balindong appealed to the COMELEC the ruling of the Macadato MBC denying
the exclusion of the election returns from Precinct No. 20, docketed as SPC No. 95-271 On his part, petitioner Jamil appealed to the
COMELEC the "rulings" of the Sansarona MBC deferring action on the returns from Precincts 5, 10-1 and 20-1, docketed as SPC No.
95-272.
Meanwhile, on the basis of Macadato's investigation report to the COMELEC dated June 5, 1995 which was apparently mistaken as a
"ruling" for the inclusion of the election returns from Precincts 5, 10-1 and 20-1, the Macadato MBC on June 26, 1995 proclaimed
petitioner Jamil as winner of the mayoralty race. The proclamation was made during the pendency of the two (2) cases before the
COMELEC.

58

On August 24, 1995, the Second Division of the COMELEC upon private respondent's motion, issued an order annulling the
proclamation of petitioner Jamil and directing the constitution of new MBC to proclaim private respondent Balindong as the lawfully
elected mayor of Sultan Gumander. Against petitioner's protest, a new MBC headed by Darangina Cariga reconvened and proclaimed
private respondent Balindong winner of the May 8, 1995 elections in compliance with the COMELEC resolution of August 24, 1995.
Thus, on February 12, 1996, the COMELEC en banc, in an evenly divided (3-3) vote, resolved to deny petitioner Jamil's motion for
reconsideration.
It is our considered view that both proclamations of petitioner and private respondent are invalid.
Clear it is that petitioner Jamil was proclaimed on June 26, 1995 after Casan Macadato, chairman of the second MBC, conducted an
investigation with respect to the inclusion or exclusion of the returns from Precinct Nos. 5, 10-1 and 20-1 and after he submitted his
investigation report, which he alone signed, to the COMELEC on June 5, 1995 merely recommending the inclusion of the three (3)
returns in the canvass. As we have mentioned above, said investigation report was not in form or substance a ruling of the MBC
because it did not make a definitive pronouncement or disposition resolving the issues regarding the questioned returns but only a
recommendation to the COMELEC. There being no ruling on the inclusion or exclusion of the disputed returns, there could have been
no complete and valid canvass which is a prerequisite to a valid proclamation.
Another fatal infirmity that vitiated petitioner's proclamation was the violation of Section 245 of the Omnibus Election Code which
prohibits the proclamation by the Board of Canvassers of a candidate as winner where returns are contested, unless authorized by the
26
COMELEC. No authority had been given by the COMELEC to the MBC for the proclamation of petitioner Jamil.
The proclamation of private respondent Balindong for the same reason was null and void, as it was not predicated on a complete and
valid canvass, but on supposed "rulings" of the Sansarona MBC which merely "set aside for further investigation" the three (3)
challenged election returns from Precinct Nos. 5, 10-1 and 20-1. Said proclamation had clearly no basis in fact and in law. It is a settled
27
rule that an incomplete canvass of votes is illegal and cannot be the basis of a valid proclamation. All of the votes cast in the election
must be counted and all the returns presented to the board must be considered as the disregard of the same would in effect
28
disenfranchise the voters affected. A canvass cannot be reflective as the true vote of the electorate unless all the returns are
29
considered.
II
On the matter of procedure, the vote of Commissioner Graduacion Claravall could not have been considered when the COMELEC took
evenly divided (3-3) vote in its February 12, 1996 Resolution. Rule 18, Section 6 of the 1993 COMELEC Rules of Procedure clearly
provides:
Sec. 6. Procedure if Opinion is Equally Divided. When the Commission en banc is equally divided in opinion; or the
necessary majority cannot be had, the case shall be reheard, and if rehearing no decision is reached, the action or
proceeding shall be dismissed if originally commenced in the Commission; in appealed cases, the judgment or order
appealed from shall stand affirmed; and in all incidental matters, the petition or motion shall be denied.
So that when COMELEC Chairman Bernardo Pardo and Commissioners Manolo Gorospe and Julio Desamito voted to affirm
the August 24, 1995 Resolution of the Second Division as against the dissent of Commissioners Regalado Maambong,
Remedios Salazar-Fernando and Teresita Dy-Liacco Flores, no rules were breached as the motion for reconsideration was
deemed denied for having failed to get a majority vote in accordance with the foregoing rule.
Moreover, it is immaterial whether Commissioner Claravall allegedly expressed or signified her intention to vote for the granting of the
motion for reconsideration and thereafter affixed her signature on the questioned resolutions. We take judicial notice of the fact that
Commissioner Claravall passed away on January 14, 1996, clearly twenty-nine (29) days prior to the promulgation of the questioned
resolution on February 12, 1996. A public official ceases to hold office upon his death and all his rights, duties and obligations pertinent
to the office are extinguished thereby. A decision becomes binding only after it is validly promulgated. Consequently, if at the time of the
promulgation of a decision or resolution, a judge or a member of the collegiate court who had earlier signed or registered his vote, has
vacated his office, his vote is automatically withdrawn or cancelled.
The reason for the rule, which is logically applicable to decisions of constitutional commissions and administrative bodies or agencies,
30
is cogently expressed in the case of Consolidated Bank and Trust Corporation v. Intermediate Appellate Court:
xxx xxx xxx
A decision becomes binding only after it is validly promulgated and not before. As we said only recently in In re
Emiliano Jurado, "a decision or resolution of the Court becomes such, for all legal intents and purposes, only from the
moment of its promulgation." According to Chief Justice Moran in the landmark case of Araneta v. Dinglasan:

59

Accordingly, one who is no longer a member of this Court at the time a decision is signed and
promulgated, cannot validly take part in that decision. As above indicated, the true decision of the
Court is the decision signed by the Justices and duly promulgated. Before that decision is so
signed and promulgated, there is no decision of the Court to speak of. The vote cast by a member
of the Court after the deliberation is always understood to be subject to confirmation at the time he
has to sign the decision that is to be promulgated. That vote is of no value if it is not thus confirmed
by the Justice casting it. The purpose of this practice is apparent. Members of this Court, even after
they have cast their votes, wish to preserve their freedom of action till the last moment when they
have to sign the decision, so that they may take full advantage of what they may believe to be the
best fruit of their most mature reflection and deliberation. In consonance with this practice, before a
decision is signed and promulgated, all opinions and conclusions stated during and after the
deliberation of the Court, remain in the breasts of the Justices, binding upon no one, not even upon
the Justice themselves. Of course, they may serve for determining what the opinion of the majority
provisionally is and for designating a member to prepare the decision of the Court, but in no way is
that decision binding unless and until signed and promulgated.
We add that at any time before promulgation, the ponencia may be changed by theponente.
Indeed, if any member of the court who may have already signed it so desires, he may still
withdraw his concurrence and register a qualification or dissent as long as the decision has not yet
been promulgated. A promulgation signifies that on the date it was made the judge or judges who
signed the decision continued to support it.
If at the time of the promulgation, a judge or a member of a collegiate court has already vacated his
office, his vote is automatically withdrawn. This was that happened in the Araneta case, where
Justice Gregorio Perfecto's signature on the original decision was disregarded when he died before
it could be promulgated. The decision remained valid, however, because it was still supported by a
majority of the Supreme Court then, and, no less importantly, Justice Perfecto was not the ponente.
xxx xxx xxx

31

In fine, while it was correct for the COMELEC in its Order of August 24, 1995 (1) to annul the proclamation of petitioner Jamil for being
32
null and void and (2) to order the constitution of a new board of canvassers, it committed grave abuse of discretion in directing the
proclamation of private respondent Balindong for the reasons abovestated.
WHEREFORE, premises considered, judgment is hereby rendered as follows:
1.) Sustaining the Order of the COMELEC dated August 24, 1995 annulling the proclamation of petitioner Abdullah A. Jamil as Mayor of
Sultan Gumander, Lanao del Sur;
2.) Declaring the proclamation of private respondent Alinader Balindong as Mayor of Sultan Gumander, Lanao del Sur, null and void;
3.) Ordering the COMELEC to resolve with dispatch the pending incidents in SPC No. 95-271 and SPC No. 95-272, i.e., rule on the
objection of inclusion and/or exclusion brought to it on appeal and immediately thereafter, to create a Special Municipal Board of
Canvassers to proclaim, after proper canvass, the mayor-elect of Sultan Gumander, Lanao del Sur.
The temporary restraining order issued by this Court on February 20, 1996 is ordered LIFTED.
SO ORDERED.
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.
SANDOVAL-GUTIERREZ, J.:

60

This is a petition for certiorari 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.1wphi1.nt
On April 21, 1998, petitioners Antonio M. Bernardo M. Bernardo, Ernesto A. Domingo, Jr. and Jesus C. Cruz filed with the COMELEC a
criminal complaint against respondents Benjamin S. Abalos, Sr., Benjamin C. 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
2
to Section 28 of Republic Act 6646 and Section 68 of the OEC. The complaint, docketed as E.O. Case No. 98-110, 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 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; 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 Elemtary 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
'SHALALA LALA'.
4. Some of the participants wore T-shirts with the name of candidate "Benhur" Abalos, Jr., printed in oversized 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
3
Omnibus Election Code against vote-buying and vote-selling.
4

The Director of the Law Department of the COMELEC conducted a preliminary investigation. All the private respondents filed separate
5
counter-affidavits with prayer to dismiss the complaint.
On November 26, 1998, the Director of the Law Department submitted his findings to the COMELEC En Bancrecommending that the
complaint be dismissed for insufficiency of evidence.
6

On December 1, 1998, the COMELEC En Banc issued the assailed Resolution No. 98-3208 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
7
complainants and not with respondents."
On February 09, 1999, petitioners, without first submitting a motion for reconsideration, filed the instant petition with this Court.

61

They alleged thereon that the COMELEC En Banc, in issuing Resolution No. 98-3208 dated December 1, 1998, acted "with apparent
8
grave abuse of dicretion."
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:
xxx
d) motion for reconsideration of an en banc ruling, resolution, order or decisionexcept 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 Court's 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
9
best not seek any further dilatory motion for reconsideration' , even if allowed by Sec. 1 (d) of COMELEC Rule 13."
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
10
Commission."
Contrary to petitioners' statement that a resort to a motion for reconsideration is "dilatory, " it bears stressing that the purpose of the
11
said motion is to give the COMELEC an opportunity to correct the error imputed to it. 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,
12
or any plain, speedy, and adequate remedy in the ordinary course of law." Having failed to file the required motion for reconsideration
13
of the challenged Resolution, petitioners' instant petition is certainly premature. Significantly, they have not raised any plausible
reason for their direct recourse to this Court.
In its assailed Resolution, the COMELEC cited a valid reason for dismissing petitioners' complaint against private respondents for vote
buying. The COMELEC found that the evidence of the respondents have "more probative value and believable than the evidence of the
complainants;" and that the evidence submitted by petitioners are "mere self-serving statements and uncorroborated audio and visual
recording and a photograph."
Moreover, Section 28 of Republic Act 6646 provides:
"SEC. 28. Prosecution of Vote-buying and Vote-selling. - The representation of a complaint for violations of paragraph (a)
or (b) of Section 261 of Batas Pambansa Blg. 881 supported by affidavits of complaining witnesses attesting to the offer
or promise by or of the voter's acceptance of money or other consideration from the relatives, leaders or
sympathizers of candidate, shall be sufficient basis for an investigation to be immediately conducted by the Commission,
directly or through its duly authorized legal officers, under Section 68 or Section 265 of said Batas Pambansa Blg.
881.1wphi1.nt
x x x." (Emphasis ours)
14

Petitioners' complaint expressly states that no supporting affidavits were submitted by the complaining witness 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.

62

EN BANC
G.R. No. 134696

July 31, 2000

TOMAS T. BANAGA, JR., petitioner,

vs.
COMMISSION ON ELECTIONS and FLORENCIO M. BERNABE, JR., respondents.
DECISION
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
1
and/or For Annulment of Elections", 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.

63

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
2
Paraaque. It is, thus, impossible that he will receive zero (0) votes in any given precinct."
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."

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
4
the petition, it is clear that an election took place and that it did not result in a failure to elect.
Considering that a motion for reconsideration of a COMELEC en banc ruling is prohibited, except in a case involving an election
5
offense, 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:

64

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
6
SUPREME COURT IN LOONG V. COMELEC.
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
7
Omnibus Election Code. Section 4 of RA 7166 refers to "postponement, failure of election and special elections" 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
8
restrained by the Supreme Court. 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
9
a failure of elections.
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."

65

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
10
rise to the consequence of failure to elect must as aforesaid, is interpreted to mean that nobody emerged as a winner.
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
11
elect; and (2) the votes not cast would have affected the result of the election. Note that the cause of such failure of election could
only be any of the following: force majeure, violence, terrorism, fraud or other analogous causes.
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.
12

In Mitmug vs. COMELEC, 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.
13

In Sardea vs. COMELEC, 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.1wphi1 No
error could be attributed to public respondent for its reliance on these precedents.
14

In Loong vs. Comelec, the petition for annulment of election results or to declare failure of elections in Parang, Sulu, on the ground of
15
statistical improbability and massive fraud was granted by the COMELEC. 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
16
of elections. 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

66

for annulment of election results, based on allegations of fraud, terrorism, violence or analogous cause, the Omnibus Election Code
17
denominates them similarly. 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
18
declare a failure to elect are present. In their absence, the petition must be denied outright. 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.
EN BANC

G.R. No. 108886 May 5, 1995

AQUILES U. REYES, petitioner,
vs.
REGIONAL TRIAL COURT OF ORIENTAL MINDORO, BRANCH XXXIX, COMMISSION ON ELECTIONS, ADOLFO G. COMIA, AND
THE SANGGUNIANG BAYAN OF NAUJAN, ORIENTAL MINDORO, respondents.

MENDOZA, J.:
This is a petition for certiorari, prohibition and mandamus which seeks (1) the annulment of the decision, dated June 23, 1992, of the
Regional Trial Court (Br. 39) of Calapan, Oriental Mindoro, annuling the proclamation of petitioner as the eighth member of the
Sangguniang Bayan of Naujan, Oriental Mindoro; (2) the annulment of the decision of the Commission on Elections (COMELEC), dated
January 22, 1993, dismissing petitioner's appeal from the trial court's decision; (3) the issuance of a writ of mandamus to compel
respondent Sangguniang Bayan to recognize petitioner as the duly elected member thereof; and (4) the issuance of a writ of prohibition
against respondent Adolfo G. Comia, enjoining him from continuing in office as member of the Sangguniang Bayan of Naujan, Oriental
Mindoro.
The facts are as follows:
Petitioner Aquiles Reyes and private respondent Adolfo Comia were candidates for the position of member of the Sangguniang Bayan
of Naujan, Oriental Mindoro in the May 11, 1992 synchronized elections.
On May 13, 1992, during the proceedings of the Municipal Board of Canvassers, private respondent moved for the exclusion of certain
election returns, on the ground of serious irregularity in counting in favor of petitioner Aquiles Reyes votes cast for "Reyes" only,
considering that there was another candidate (Epitacio Reyes) bearing the same surname. However, without resolving his petition, the
Municipal Board of Canvassers proclaimed on the same day petitioner as the eighth winning candidate with 7,205 votes. On May 25,
1992 petitioner took his oath of office.
On June 1, 1992, private respondent filed an election protest before the trial court. He alleged that "a vital mistake [had been]
committed by the Board of Canvassers in the mathematical computation of the total number of votes garnered by petitioner [now private
respondent];" Private respondent alleged:
5. That in the said Statement of Votes by City/Municipality or Precinct or C.E. Form No. 20-A, it is reflected therein
that the total number of votes garnered by the petitioner is only 858 votes, when in fact and in truth, after reviewing
and correcting the computation of the actual votes garnered by the petitioner the total votes to be counted in his favor
is 915 votes;
6. That the Municipal Board of Canvassers and the Election Registrar of Naujan, Oriental Mindoro, after having been
informed of the said discrepancies, manifested in the presence of Municipal Trial Court Judge TOMAS C. LEYNES,

67

that it was an honest mistake committed in the computation and the addition of the total number of votes appearing in
C.E. Form No. 20-A.;
7. That after correcting the total number of votes garnered by the petitioner, it appears now that the total votes cast in
his favor in all precincts is 7,233 votes which is more than 28 votes over the total of 7,205 votes garnered by
respondent Aquiles U. Reyes, who was proclaimed as Elected Sangguniang Bayan Member of Naujan, Oriental
Mindoro occupying the 8th position.
On June 4, 1992, petitioner filed a motion to dismiss private respondent's petition on the ground that it was filed beyond the
reglementary period of ten days from proclamation. On June 15, 1992, however, the trial court denied his motion.
On the other hand, the Municipal Board of Canvassers file its answer in which it admitted that it had made a mistake in crediting private
respondent with only 858 votes when he was entitled to 915 votes in the Statement of Votes (C.E. Form No. 20-A).
On June 23, 1992, the trial court rendered its decision annuling the proclamation of petitioner and declaring private respondent as the
eighth winning candidate for the position of councilor of the Sangguniang Bayan of Naujan, Oriental Mindoro. A copy of the decision
was served on petitioner on June 26, 1992.
Petitioner filed a notice of appeal to the COMELEC. In addition, he filed a petition for mandamus and prohibition in the Court of
Appeals, to compel the Sangguniang Bayan to recognize him as the duly proclaimed member of that body and prohibit it from further
recognizing private respondent.
On August 26, 1992, the Court of Appeals dismissed the petition because of petitioner's pending appeal in the COMELEC. The
appellate court cited Supreme Court Circular 28-91 which prohibits the filing of multiple petitions involving the same issues.
Petitioner filed a motion for reconsideration but his motion was denied. The appellate court's decision became final and executory on
December 10, 1992.
Meanwhile, the Sangguniang Bayan met in inaugural session on July 3, 1992, during which private respondent was recognized as the
eighth member of the body and thereafter allowed to assume office and discharge its functions. On July 13, 1992, it informed petitioner
that it had recognized the private respondent as its member.
On the other hand, the COMELEC's First Division dismissed on January 22, 1993 petitioner's appeal on the ground that he had failed to
pay the appeal fee within the prescribed period.
Petitioner then brought the present action. Petitioner contends that both the trial court and the COMELEC's First Division committed a
grave abuse of discretion, the first, by assuming jurisdiction over the election contest filed by private respondent despite the fact that the
case was filed more than ten days after petitioner's proclamation, and the second i.e., the COMELEC's First Division, by dismissing
petitioner's appeal from the decision of the trial court for late payment of the appeal fee.
We find the petition to be without merit.
First. The Solicitor General, in behalf of the COMELEC, raises a fundamental question. He contends that the filing of the present
petition, without petitioner first filing a motion for reconsideration before the COMELEC en banc, violates Art. IX, A, 7 of the
1
Constitution because under this provision only decisions of the COMELEC en banc may be brought to the Supreme Court
on certiorari.
This is correct. It is now settled that in providing that the decisions, orders and rulings of COMELEC "may be brought to the Supreme
2
Court on certiorari" the Constitution in its Art. IX, A, 7 means the special civil action ofcertiorari under Rule 65, 1. Since a basic
3
condition for bringing such action is that the petitioner first file a motion for reconsideration, it follows that petitioner's failure to file a
motion for reconsideration of the decision of the First Division of the COMELEC is fatal to his present action.
Petitioner argues that this requirement may be dispensed with because the only question raised in his petition is a question of law. This
is not correct. The questions raised by petitioner involve the interpretation of constitutional and statutory provisions in light of the facts of
this case. The questions tendered are, therefore, not pure questions of law.
Moreover, that a motion for reconsideration before the COMELEC en banc is required for the filing of a petition forcertiorari is clear from
the following provisions of the Constitution:
Art. IX, C, 2. The Commission on Elections shall exercise the following powers and functions:

68

xxx xxx xxx

(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial, and city
officials, and appellate jurisdiction over all contests involving elective municipal
officials decided by trial courts of general jurisdiction, or involving elective
barangay officials decided by trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests
involving elective municipal and barangay offices shall be final, executory, and
not appealable.
Id. 3. The Commission on Elections may sit en banc or in two divisions, and shall promulgate its rules of procedure
in order to expedite disposition of election cases, including pre-proclamation controversies. All such election cases
shall be heard and decided in division, provided that motions for reconsideration of decisions shall be decided by the
Commission en banc.
Conformably to these provisions of the Constitution all election cases, including pre-proclamation controversies, must be decided by the
COMELEC in division. Should a party be dissatisfied with the decision, he may file a motion for reconsideration before the
COMELEC en banc. It is, therefore, the decision, order or ruling of the COMELEC en banc that, in accordance with Art. IX, A, 7, "may
4
be brought to the Supreme Court on certiorari."
Second Even on the merits we think the First Division of the COMELEC properly dismissed petitioner's appeal from the decision of the
trial court because of his failure to pay the appeal fee within the time for perfecting an appeal. Rule 22, 9 of the COMELEC Rules of
Procedure expressly provides:
Sec. 9. Grounds for dismissal of appeal. The appeal may be dismissed upon motion of either party or at the
instance of the Commission on any of the following grounds:
(a) Failure of the appellant to pay the appeal fee; . . .
In accordance with 2(b) of COMELEC Resolution No. 2108-A, the appeal fee must be paid within the period to perfect the appeal.
Thus:
Sec. 2. When docket and other fees shall be paid.
xxx xxx xxx
(b) The appeal fees prescribed in section 3 of Rule 22 of the COMELEC Rules of Procedures shall be paid within the
period to perfect the appeal. . . .
The period to perfect the appeal is understood to be the period within which to file the notice of appeal.
On the other hand, Rule 22, 3 of the Rules of Procedure of the COMELEC provides:
Notice of Appeal. Within five (5) days after promulgation of the decision of the court, the aggrieved party may file with
said court a notice of appeal, and serve a copy thereof upon the attorney of record of the adverse party.
5

This resolution, which was promulgated on July 14, 1989, superseded COMELEC Resolution No. 1456 on which petitioner relies for
his contention that the fee is to be paid only upon the filing of the appeal brief.
The records show that petitioner received a copy of the decision of the trial court on June 26, 1992. However, he paid the appeal fee of
P1,020.00 only on August 6, 1992. In other words, petitioner allowed forty (40) days to lapse when the appeal fee should have been
paid within five (5) days after promulgation of the trial court's decision.
Petitioner claims that he acted on advice, presumably of COMELEC officials, to wait until the records of the appealed case was
received from the Regional Trial Court, so that it could be docketed and given a case number before paying the appeal fee. But there is
nothing in the record to show this or that petitioner offered to pay the appeal fee within the appeal period. He has not identified the
person who allegedly gave him the erroneous advice.

69

Petitioner also prays that a re-canvass be conducted in all the electoral precincts of Naujan, Oriental Mindoro in view of the jointaffidavit executed by the members of the Municipal Board of Canvassers on October 12, 1993 in which they stated:
That the respondent Board, per verification from the Comelec records of Naujan, after receipt of the sworn lettercomplaint of Mr. Aquiles U. Reyes, aside from the matters already alluded to above found that the "40" votes he
garnered in Precinct No. 37, and the "31" votes in Precinct 41-A that should have been credited, transcribed or
recorded in complainant's favor in the Statement of Votes (C.E. Form No. 22-A) on the basis of the Election Returns
(C.E. Form No. 9), thru honest mistake was erroneously and inadvertently transcribed or recorded in good faith and
without malice due to mental and physical fatigue and exhaustion by the Board of Canvassers and its staff in favor of
candidate Jeremias Nacorda of Sangguniang Bayan Member of the Municipality of Naujan in the Statement of Votes
(C.E. Form No. 22-A) of said precincts, and what should have been credited and reflected as candidate Nacorda's
vote in the Statement of Votes (C.E. Form No. 22-A) on the basis of the Election Returns (C.E. Form No. 9) are "9"
votes in Precinct 37 not "40" votes, and "8" votes in Precinct No. 41-A and not "31" votes, certification is hereto
attached issued by the Election Officer of Naujan that candidate Nacorda per Comelec records shown in the Election
Returns (C.E. Form No. 9) only garnered "9" votes in Precinct 37, and "8" votes in Precinct 41-A and marked as
Annex "1" and made as integral part of his joint-affidavit.
6

This issue was raised in the Addendum to Appellant's Brief in the COMELEC Case EAC No. 9-92. With the dismissal of that case by
the COMELEC's First Division, there is no basis for petitioner's present contention.
Third. Petitioner also assails the decision of the trial court as having been rendered without jurisdiction. He contends that the election
protest of private respondent was filed more than ten days after his (petitioner's) proclamation.
Petitioner is, however, estopped to raise this question now. He did not only appeal from the decision of the trial court to the COMELEC
raising this question, but he also filed a petition for mandamus and prohibition in the Court of Appeals. Having decided on this course of
action, he should not be allowed to file the present petition just because he lost in those cases.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 114795 July 17, 1996
LUCITA Q. GARCES, petitioner,
vs.
THE HONORABLE COURT OF APPEALS, SALVADOR EMPEYNADO and CLAUDIO CONCEPCION,respondents.
RESOLUTION

FRANCISCO, J.:p
1

Questioned in this petition for review is the decision of the Court of Appeals (CA), as well as its resolution, which affirmed the
3
decision of the Regional Trial Court (RTC) of Zamboanga del Norte in dismissing a petition for mandamusagainst 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
4
respondent Election Registrar Claudio Concepcion who, in turn, was transferred to Liloy, Zamboanga del Norte. Correspondingly
5
approved by the Civil Service Commission, both appointments were to take effect upon assumption of office. Concepcion, however,
6
refused to transfer post as he did not request for it. Garces, on the other hand, was directed by the Office of Assistant Director for
7
Operations to assume the Gutalac post. But she was not able to do so because of a Memorandum issued by respondent Provincial
8
Election Supervisor Salvador Empeynado that prohibited her from assuming office in Gutalac as the same is not vacant.
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
9
interpreted to mean as superseding the deferment order. Meanwhile, since respondent Concepcion continued occupying the Gutalac
10
office, the COMELEC en banccancelled his appointment to Liloy.

70

On February 26, 1988, Garces filed before the RTC a petition for mandamus with preliminary prohibitory and mandatory injunction and
11
damages against Empeynado and Concepcion, among others. Meantime, the COMELECen banc through a Resolution dated June 3,
12
1988, resolved to recognize respondent Concepcion as the Election Registrar of Gutalac, and ordered that the appointments of
13
Garces to Gutalac and of Concepcion to Liloy be cancelled. 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
14
for mandamus on two grounds, viz., (1) that quo warranto is the proper remedy, and (2) that the "cases" or "matters" referred under
the constitution pertain only to those involving the conduct of elections. On appeal, respondent CA affirmed the RTC's dismissal of the
case. Hence, this petition
The issues raised are purely legal. First, is petitioner's action for mandamus proper? And, second, is this case cognizable by the RTC
or by the Supreme Court?
On the first issue, Garces claims that she has a clear legal right to the Gutalac post which was deemed vacated at the time of her
15
appointment and qualification. Garces insists that the vacancy was created by Section 2, Article III of the Provisional Constitution. On
the contrary, Concepcion posits that he did not vacate his Gutalac post as he did not accept the transfer to Liloy.
Article III Section 2 of the Provisional Constitution provides:
All elective and appointive officials and employees under the 1973 Constitution shall continue in the office
until otherwise provided by proclamation or executive order or upon the designation or appointment and
qualification of their successors, if such is made within a period of one year from February 25, 1986.
(Emphasis supplied).
16

The above organic provision did not require any cause for removal of an appointive official under the 1973 Constitution. The
1
transition period from the old to the new Constitution envisioned an "automatic" vacancy; 7hence the government is not hard
18
put to prove anything plainly and simply because the Constitution allows it. Mere appointment and qualification of the
successor removes an incumbent from his post. Nevertheless, the government in an act of auto-limitation and to prevent
indiscriminate dismissal of government personnel issued on May 28, 1986, Executive Order (E.O.) No. 17. This executive
order, which applies in this case as it was passed prior to the issuance of Concepcion's transfer order, enumerates five
grounds for separation or replacement of elective and appointive officials authorized under Article III, Section 2 of the
Provisional Constitution, to wit:
1. Existence of a case for summary dismissal pursuant to Section 40 of the Civil Service Law;
2. Existence of the probable cause for violation of the Anti-Graft and Corrupt Practices Act as determined by
the Ministry Head concerned;
3. Gross incompetence or inefficiency in the discharge of functions;
4. Misuse of public office for partisan political purposes;
5. Any other analogous ground showing that the incumbent is unfit to remain in the service or his
separation/replacement is in the interest of the service.
Not one of these grounds was alleged to exist, much less proven by petitioner when respondent Concepcion was transferred
19
from Gutalac to Liloy. More, Concepcion was transferred without his consent. A transfer requires a prior appointment. If the
20
transfer was made without the consent of the official concerned, it is tantamount to removal without valid cause contrary to
21
the fundamental guarantee on non-removal except for cause. Concepcion's transfer thus becomes legally infirm and without
effect for he was not validly terminated. His appointment to the Liloy post, in fact, was incomplete because he did not accept it.
22
Acceptance, it must be emphasized, it is indispensable to complete an appointment. Corollarily, Concepcion's post in
Gutalac never became vacant. It is a basic precept in the law of public officers that "no person, no matter how qualified and
23
eligible he is for a certain position may be appointed to an office which is not vacant. There can be no appointment to a nonvacant 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 petitioner's right is founded clearly in law and not when it is
24
25
doubtful. It will not issue to give him something to which he is not clearly and conclusively entitled. Considering that
Concepcion continuously occupies the disputed position and exercises the corresponding functions therefor, the proper

71

26

remedy should have been quo warranto and not mandamus. Quo warranto tests the title to one's office claimed by another
and has as its object the ouster of the holder from its enjoyment, while mandamus avails to enforce clear legal duties and not
2
to try disputed titles. 7
28

Garces' heavy reliance with the 1964 Tulawie case is misplaced for material and different factual considerations. Unlike in
this case, the disputed office of "Assistant Provincial Agriculturist" in the case of Tulawie is clearly vacant and petitioner
Tulawie's appointment was confirmed by the higher authorities making his claim to the disputed position clear and certain.
Tulawie's petition for mandamus, moreover, was against the Provincial Agriculturist who never claimed title to the contested
office. In this case, there was no vacancy in the Gutalac post and petitioner's appointment to which she could base her claim
was revoked making her claim uncertain.
Coming now to the second issue.
29

The jurisdiction of the RTC was challenged by respondent Empeynado 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 certioraribefore 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 matteris 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
COMELEC's 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
30
relate to the COMELEC's exercise of itsadjudicatory or quasi-judicial powers involving "elective regional, provincial, and city
31
officials." In this case, what is being assailed is the COMELEC's choice of an appointee to occupy the Gutalac Post which is
32
an administrative duty done for the operational set-up of an agency. The controversy involves an appointive, not an elective,
official. Hardly can this matter call for the certiorari jurisdiction of the Supreme Court. To rule otherwise would surely burden
the Court with trivial administrative questions that are best ventilated before the RTC, a court which the law vests with the
power to exercise original jurisdiction over "all cases not within the exclusive jurisdiction over of any court, tribunal, person or
body exercising judicial or quasi-judicial
33
functions."
WHEREFORE, premises considered, the petition for review is hereby DENIED without prejudice to the filing of the proper
action with the appropriate body.
Narvasa, C.J., Davide, Jr., Melo and Panganiban, JJ., concur.
EN BANC

G.R. No. 105323 July 3, 1992

FRANCISCO I. CHAVEZ, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
RESOLUTION

BIDIN, J.:

72

This case was originally an urgent petition ad cautelam praying, among others, for the issuance of a temporary restraining order
enjoining respondent Commission on Elections (Comelec) from proclaiming the 24th highest senatorial candidate.
The antecedents facts are as follows:
On May 5, 1992, this Court issued a Resolution in G.R. No. 104704, entitled "Francisco Chavez v. Comelec, et al.," disqualifying
Melchor Chavez, private respondent therein, from running for the Office of Senator in the May 11, 1992 elections.
The above-mentioned resolution was received by respondent Comelec on May 6, 1992. On the same day, petitioner filed an urgent
motion with the Comelec praying that it (1) disseminate through the fastest available means this Court's Resolution dated May 5, 1992
to all regional election directors, provincial election supervisors, city and municipal election registrars, boards of election inspectors, the
six (6) accredited political parties and the general public; and (2) order said election officials to delete the name of Melchor Chavez as
printed in the certified list of candidates tally sheets, election returns and "to count all votes cast for the disqualified Melchor Chavez in
favor of Francisco I. Chavez . . . ."
On May 8, 1992, the Comelec issued Res. No. 92-1322 which resolved to delete the name of Melchor Chavez from the list of qualified
candidates. However, it failed to order the crediting of all "Chavez" votes in favor of petitioner as well as the cancellation of Melchor
Chavez' name in the list of qualified candidates.
According to petitioner, the Comelec failed to perform its mandatory function under Sec. 7, RA 7166 which states that if a candidate has
been disqualified, it shall be the duty of the Commission to instruct without delay the deletion of the name of said candidate.
Thus, the name of Melchor Chavez remained undeleted in the list of qualified candidates on election day.
Confusion arose, allegedly nationwide, as the "Chavez" votes were either declared stray or invalidated by the Boards of Election
Inspectors (BEIs).
On May 11, 1992, Commissioner Rama of respondent Comelec issued a directive over radio and TV ordering all "Chavez" votes to be
credited in favor of petitioner. Petitioner contends that the radio and TV announcements did not reach the BEI at the 170,354 precincts
nationwide. As a result, "Chavez" votes were not credited in favor of petitioner.
On May 12, 1992, Comelec issued another Resolution directing all municipal and city election registrars throughout the country to
examine the minutes of voting submitted by the BEIs and to credit all the "Chavez" votes, which have been declared stray or invalidated
by the BEIs, in favor of petitioner.
Petitioner maintains that the said resolution proved futile because it did not reach all the various BEIs of the 170,354 election precincts
throughout the country on time for implementation and that the minutes of voting did not indicate the number of "Chavez" votes which
were declared stray or invalidated.
On May 14, 1992, petitioner sent a letter to the Comelec requesting the latter to devise ways and means in crediting "Chavez" votes in
his favor but the respondent Commission failed to act on said letter/complaint.
On May 23, 1992, petitioner filed an urgent petition before the respondent Comelec praying the latter to (1) implement its May 12, 1992
resolution with costs de officio; (2) to re-open the ballot boxes in 13 provinces including the National Capital Region involving some
80,348 precincts (p. 9 of petition) and to scan for the "Chavez" votes for purposes of crediting the same in his favor; (3) make the
appropriate entries in the election returns/certificates of canvass; and (4) to suspend the proclamation of the 24 winning candidates.
Dissatisfied with the failure of respondent Comelec to act on his petition, petitioner filed, as aforesaid, this urgent petition for prohibition
and mandamus, with prayer for the issuance of a temporary restraining order, enjoining the Comelec from proclaiming the 24th highest
senatorial candidate, without first implementing respondent Comelec's resolution of May 12, 1992 and acting upon petitioner's
letter/complaint dated May 14, 1992 and urgent petition dated May 22, 1992.
It is the submission of petitioner that assuming only ten (10) "Chavez" votes were invalidated per precinct, he would have lost at least
1.7 million votes (considering that there are more than 170,000 precincts nationwide); the result of which will affect the 24 ranking
senatorial candidates.
Petitioner alleges that respondent Comelec acted capriciously and whimsically and with grave abuse of discretion and therefore prays
that the Comelec be enjoined from proclaiming the 24th winning senatorial candidate until after his petition before the Commission is
resolved.

73

On June 4, 1992, the Court issued a Temporary Restraining Order enjoining respondent Comelec from proclaiming the 24th winning
senatorial candidate and set the case for hearing on June 9, 1992.
On the same day (June 4, 1992), petitioner filed a manifestation stating that on May 30, 1992, his urgent petition dated May 22, 1992
was dismissed by respondent Comelec and prayed that the petition ad cautelam at bar be considered a regular petition.
On June 8, 1992, Senator Agapito Aquino ** filed a Motion for Leave to Intervene with Comment in Intervention praying for the
dismissal of the instant petition on the ground that the law does not allow pre-proclamation controversy involving the election of
members of the Senate.
After hearing the arguments of the parties on June 9, 1992, the Court resolved to lift the temporary restraining order in the afternoon of
the same day (June 9, 1992).
Coming now to the merits, We find the petition devoid of any.
As stated earlier, petitioner's urgent petition dated May 22, 1992 was dismissed by respondent Comelec on May 30, 1992. Had it not
been prayed that the proclamation of the 24th winning senatorial candidate be suspended, which this Court granted on June 4, 1992,
the instant petition would have been dismissed outright for having become moot and academic. But even then, this Court could not
have acted favorably on petitioner's plaint.
The alleged inaction of respondent Comelec in ordering the deletion of Melchor Chavez's name in the list of qualified candidates does
not call for the exercise of the Court's function of judicial review. This Court can review the decisions or orders of the Comelec only in
cases of grave abuse of discretion committed by it in the discharge of its quasi-judicial powers and not those arising from the exercise
of its administrative functions. Respondent Commission's alleged failure to implement its own resolution is undoubtedly administrative in
nature, hence, beyond judicial interference (See Filipinas Engineering Co. v. Ferrer, 135 SCRA 25 [1985]; Aratuc v. Commission on
Elections, 88 SCRA 251 [1979]; see also Pungutan v. Abubakar, 43 SCRA 1 [1972]). As aptly observed by the Solicitor
General, respondent Comelec can administratively undo what it has administratively left undone(Manifestation, p. 2). Moreover,
respondent Comelec has in fact, on May 6, 1992 to be exact, ordered the deletion of Melchor Chavez's name not only on the official list
of candidates, but also on the election returns, tally sheet and certificate of canvass (Comment, p. 7). Hence, petitioner's allegation that
respondent Comelec failed to implement Res. No. 92-132 does not hold water.
Be that as it may, there are other compelling reasons why the instant petition is bound to fail.
A simple reading of the petition would readily show that petitioner has no cause of action, the controversy presented being one in the
nature of a
pre-proclamation. **
While the Commission has exclusive jurisdiction over pre-proclamation controversies involving local elective officials (Sec. 242,
Omnibus Election Code), nevertheless, pre-proclamation cases are not allowed in elections for President, Vice-President, Senator and
Member of the House of Representatives.
Sec. 15 of Republic Act 7166 provides:
Sec. 15. Pre-proclamation Cases Not Allowed in Elections for President, Vice-President, Senator, and Member of the
House of Representatives. For purposes of the elections for President,
Vice-President, Senator and Member of the House of Representatives, no pre-proclamation cases shall be allowed
on matters relating to the preparation, transmission, receipt, custody and appreciation of the election returns or the
certificate of canvass, as the case may be. However, this does not preclude the authority of the appropriate
canvassing body motu proprio or upon written complaint of an interested person to correct manifest errors in
the certificate of canvass or election returns before it. (emphasis supplied)
xxx xxx xxx
Any objection on the election returns before the city or municipal board of canvassers, or on the municipal certificates
of canvass before the provincial boards of canvassers or district board of canvassers in Metro Manila Area, shall be
specifically noted in the minutes of their respective proceedings.
It is clear from the above-quoted provision of the law that
"pre-proclamation cases (are) not allowed in elections for President,
Vice-President, Senator and Member of the House of Representatives.'' What is allowed is the correction of "manifest errors in the
certificate of canvass or election returns." To be manifest, the errors must appear on the face of the certificates of canvass or election

74

returns sought to be corrected and/or objections thereto must have been made before the board of canvassers and specifically noted in
the minutes of their respective proceedings.
In the case at bar, however, petitioner prays not only for a restraining order enjoining "the proclamation of the 24th highest ranking
senatorial candidate without first acting upon petitioner's letter/complaint dated May 14, 1992 and urgent petition dated May 22, 1992"
but also prays that judgment be rendered requiring the Comelec to re-open the ballot boxes in 80,348 precincts in 13 provinces therein
enumerated (Petition, p. 9) including Metro Manila, scan the ballots for "Chavez" votes which were invalidated or declared stray and
credit said scanned "Chavez" votes in favor of petitioner.
It is quite obvious that petitioner's prayer does not call for the correction of "manifest errors in the certificates of canvass or election
returns" before the Comelec but for the re-opening of the ballot boxes and appreciation of the ballots contained therein. Indeed,
petitioner has not even pointed to any "manifest error" in the certificates of canvass or election returns he desires to be rectified. There
being none, petitioner's proper recourse is to file a regular election protest which, under the Constitution and the Omnibus Election
Code, exclusively pertains to the Senate Electoral Tribunal.
Thus, Sec. 17, Art. VI of the Constitution provides that "(t)he Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns, and qualifications of their respective Members. . . ."
(emphasis supplied). The word "sole" underscores the exclusivity of the Tribunals' jurisdiction over election contests relating to their
respective Members (Co v. Electoral Tribunal of the House of Representatives, 199 SCRA 692 [1991]; Lazatin v. House of
Representatives Electoral Tribunal, 168 SCRA 391 [1988]; Angara v. Electoral Commission, 63 Phil. 139 [1936]). It is therefore crystal
clear that this Court has no jurisdiction to entertain the instant petition. It is the Senate Electoral Tribunal which has exclusive
jurisdiction to act on the complaint of petitioner involving, as it does, contest relating to the election of a member of the Senate. As
aforesaid, petitioner's proper recourse is to file a regular election protest before the Senate Electoral Tribunal after the winning
senatorial candidates have been proclaimed.
Petitioner argues, on the other hand, that a recount before the Senate Electoral Tribunal where he would be forced to shell out the
expenses imposes not only a property requirement for the enjoyment of the right to be voted upon but also a price on the right of
suffrage which would ultimately stifle the sovereign will.
The argument, however, is beside the point. The law is very clear on the matter and it is not right for petitioner to ask this Court to
abandon settled jurisprudence, engage in judicial legislation, amend the Constitution and alter the Omnibus Election Code. The
mandatory procedures laid down by the existing law in cases like the one at bar must be faithfully followed lest we allow anarchy to
reign. The proper recourse is for petitioner to ask not this Court but the Legislature to enact remedial measures.
Finally, the instant petition falls squarely with the case of Sanchez v. Commission on Elections (153 SCRA 67 [1987]) and the
disposition arrived therein finds application in the case at bar, mutatis mutandis:
Sanchez anchors his petition for recount and/or reappreciation on Section 243, paragraph (b) of the Omnibus
Election Code in relation to Section 234 thereof with regard to material defects in canvassed election returns. He
contends that the canvassed returns discarding "Sanchez" votes as stray were "incomplete" and therefore warrant a
recount or reappreciation of the ballots under Section 234.
xxx xxx xxx
. . . The fact that some votes written solely as "Sanchez" were declared stray votes because of the inspectors'
erroneous belief that Gil Sanchez had not been disqualified as a candidate, involves an erroneous appreciation of the
ballots. It is established by the law as well as jurisprudence . . . that errors in the appreciation of ballots by the board
of inspectors are proper subject for election protest and not for recount or reappreciation of ballots.
2. The appreciation of the ballots cast in the precincts is not a "proceeding of the board of canvassers" for purposes
of
pre-proclamation proceedings under Section 241, Omnibus Election Code, but of the boards of election inspectors
who are called upon to count and appreciate the votes in accordance with the rules of appreciation provided in
Section 211, Omnibus Election Code. Otherwise stated, the appreciation of ballots is not part of the proceedings of
the board of canvassers. The function of ballots appreciation is performed by the boards of election inspectors at the
precinct level. (Emphasis supplied)
3. The scope of pre-proclamation controversy is limited to the issues enumerated under Sec. 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

75

pre-proclamation recount may be resorted to, granted the preservation of the integrity of the ballot box and its
contents, Sanchez' petition must fail. The complete election returns whose authenticity is not in question, must
be prima facie considered valid for the purpose of canvassing the same and proclamation of the winning candidates.
xxx xxx xxx
7. The ground for recount relied upon by Sanchez is clearly not among the issues that may be raised in preproclamation controversy. His allegation of invalidation of "Sanchez" votes intended for him bear no relation to the
correctness and authenticity of the election returns canvassed. Neither the Constitution nor statute has granted the
Comelec or the board of canvassers the power in the canvass of election returns to look beyond the face thereof,
once satisfied of their authenticity (Abes v. Comelec, 21 SCRA 1252, 1256).
In the case at bar, petitioner's allegation that "Chavez" votes were either invalidated or declared stray has no relation to the correctness
or authenticity of the election returns canvassed. Otherwise stated, petitioner has not demonstrated any manifest error in the certificates
of canvass or election returns before the Comelec which would warrant their correction. As the authenticity of the certificates of canvass
or election returns are not questioned, they must be prima facie considered valid for purposes of canvassing the same and
proclamation of the winning candidates (Sanchez v. Comelec, supra).
Premises considered, the Court Resolved to DISMISS the instant petition for lack of merit.
SO ORDERED.
Narvasa, C.J., Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Grio-Aquino, Medialdea, Regalado, Davide, Jr., Romero, Nocon and
Bellosillo, JJ., concur.

Footnotes
** Ranked as the 24th winning senatorial candidate in the official canvass of Comelec.
** Pre-proclamation controversy is defined 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." (Sec. 241,
Omnibus Election Code).

EN BANC

G.R. No. 116206 February 7, 1995

JOSE M. BULAONG, petitioner,
vs.
COMMISSION ON ELECTIONS and LUIS VILLAFUERTE, respondents.

MENDOZA, J.:
This is a petition for certiorari seeking the annulment of four orders issued by the Commission on Elections in EPC No. 92-37. The first
order, dated June 7, 1994, denied petitioner's motion for further extension of time to make a technical examination of election
documents.
The second order, dated June 20, 1994, admitted all exhibits of private respondent, consisting of revision results and other official
documents.

76

The third order, dated June 27, 1994, gave petitioner a limited period of 15 days to present his evidence in the form of affidavits of
witnesses and thereafter another period of 15 days within which to make an offer of evidence and submit his memorandum.
The fourth order, dated July 7, 1994, denied "with finality" petitioner's motion for reconsideration of the June 20, 1994 resolution, which
admitted the exhibits of private respondent, as well as petitioner's motion to have his witnesses examine the election documents before
executing their affidavits or, in the alternative, to allow them to testify before the Commission instead of submitting their affidavits.
Petitioner contends that there is "an abnormally huge and "unexplained discrepancy" between the results shown in the election returns
and tally sheets, on the one hand, and the results of the actual count and that he has a right to show that this was due to the
substitution of ballots after the canvass. He claims that because of the Commission's orders in question, he was deprived of the right to
prove his allegations.
The facts are as follows:
Petitioner Jose M. Bulaong and private respondent Luis R. Villafuerte were candidates for Provincial Governor of Camarines Sur in the
elections held on May 11, 1992, private respondent being, at the time, the incumbent Governor. Petitioner was proclaimed elected by
the Provincial Board of canvassers. A total P184,654 votes were credited to him, against 155,359 votes for private respondent.
On July 9, 1992, private respondent filed an election protest, alleging fraud and other irregularities in 594 precincts located in 10
municipalities and one city (Iriga City) of Camarines Sur. He prayed that a revision of the ballots and other election documents and their
technical examination be ordered, that the results of the elections be annulled and that he be declared the duly elected Governor of
Camarines Sur.
Petitioner filed his answer denying that any irregularity attended the conduct of the elections.
On motion of private respondent the Commission on Elections ordered the revision of the ballots to be held in Manila. Petitioner
1
questioned the order but this Court, on March 31, 1993, upheld the ordered the Commission's order.
The revision of ballots then proceeded. Commenced on January 12, 1994, the revision was finished on February 7, 1994. The revision
of ballots in 594 precincts resulted in a reversal of the results. Private respondent Luis R. Villafuerte received 171,577 votes, while
petitioner Jose M. Bulaong received 170,361.
Petitioner then filed a motion for the technical examination of the election documents alleging that there had been tampering of the
ballots between the time the ballot boxes were brought to Manila and the time the revision began. His motion was granted by the
Commission in its order of March 14, 1994, which limited the period for the examination to one month. The period of revision was later
set from April 4, 1994 to May 4, 1994.
On April 30, 1994, petitioner asked for 45 more days to complete the ballots. In the beginning, the Commission denied his motion but,
on petitioner's motion for reconsideration, the Commission granted him 25 days (from May 17, 1994, to June 10, 1994) within which to
finish the technical examination of the election documents.
On June 6, 1994, petitioner filed a Motion for Another Extension of Time to Complete Technical Examination. In its order dated June 7,
1994, the Commission denied the request on the ground that petitioner had enough time to finish the technical examination of the
ballots. This is the first order questioned.
Hearing was thereupon held on June 13, 1994, during which private respondent made a Formal Offer of Documentary Exhibits. The
exhibits consisted of the reports of the Revision Committee, the Minutes of the Proceedings, a Manifestation on Typographical and/or
Transposition Errors in the Revision Reports, Summary of Classified Objections, and Summary of Ballots.
Petitioner asked for 30 days within which to submit his Comments or Objections. However, the Commission granted him only 5 days
(until June 18, 1994) and set the hearing for the presentation of petitioner's testimonial evidence on June 20, 1994.
It appears that petitioner had sent his Comments/Objections by mail from Naga City on June 17, 1994. Because of this they were not
received at the Commission by the time the case was called for hearing on June 20, 1994. Petitioner argued that the Commission could
not rule on the admissibility of private respondent's documentary evidence pending receipt of his objections. The Commission
nevertheless went ahead with its ruling. In its order dated June 20, 1994 (the second order questioned) the Commission admitted
Exhibits A to H "as official documents and for whatever [they] may be worth." It also admitted Exhibits I, J and K "for whatever [they]
may be worth, noting however, the comments and objections of protestee."

77

The Commission then ordered petitioner to present his evidence. As he was not ready, the Commission set another hearing on June
27, 1994, with the warning that it would consider the case submitted for decision if petitioner would still not be ready on that date to
present his testimonial evidence.
At the hearing on June 27, 1994, petitioner again manifested that he was not ready to present his testimonial evidence. He asked
instead to be allowed to submit the affidavits of his witnesses. For this purpose he asked for 45 days from June 27, 1994 within which to
secure their affidavits, make an offer of exhibits and file his memorandum, after which, he agreed, the case could be considered
submitted for resolution.
Noting that the next election was less than a year away, the Commission granted petitioner only 15 days, from June 27, 1994 (up to
July 12, 1994) within which to submit the affidavits of his witnesses and after that another period of 15 days (up to July 27, 1994) within
which petitioner should make his formal offer of exhibits and submit his memorandum. This directive was contained in an order dated
June 27, 1994, the third order questioned. Altogether, petitioner was granted a period of 30 days.
Petitioner thereafter filed two motions in succession.
On June 30, 1994, he filed a motion to allow his witnesses to examine and identify ballots and other election documents before giving
their affidavits. He asked that subpoenas be issued to them to come to Manila for the purpose. He alleged that these witnesses were
public school teachers who composed the Board of Elections Inspectors in the last election and that they would state in their affidavits
that the signatures on the reverse side of some ballots were not genuine; that the ballots found in the ballot boxes were not the same
ballots which they had counted in May 1992; that the printed stickers pasted on some of the questioned ballots were not there at the
time of counting; and that the election returns and tally sheets which were used in the canvass and deposited in the ballot boxes
reflected the true results of the counting of the ballots. Petitioner claimed that the examination of ballots by the witnesses was
"absolutely necessary" for his witnesses to be able to execute their affidavits. In the alternative, petitioner asked that his witnesses be
2
allowed to give oral testimonies instead of affidavits.
The next day, July 1, 1994, petitioner filed a motion for reconsideration of the order of June 20, 1994 which admitted the exhibits offered
by private respondent without the benefit of petitioner's comments and objections.
In its order dated July 7, 1994 (the fourth order questioned), the Commission denied "with finality" petitioner's Motion for
Reconsideration of the June 20, 1994 order, stating that until then (July 7, 1994) it had not yet received petitioner's
comments/objections. It likewise denied petitioner's motion for the examination of the ballots by witnesses on the ground that he had
already been given sufficient time to present his evidence.
At the hearing held on July 12, 1994, which was the last day of the period granted to him for submitting the affidavits of witnesses,
petitioner was able to submit the affidavit of only one witness, namely Consuelo B. Gonzales, who was the Chairman of the Board of
Election Inspectors of Precinct No. 61, San Nicolas, Iriga City in the May 11, 1992 elections. Petitioner explained that because the
witnesses had not been able to see the ballots, he was not able to obtain their statements. For this reason he was not ready to submit
his evidence. He reiterated his request for the issuance of subpoenas to his witnesses.
Private respondent objected to petitioner's motion and asked that the order of June 27, 1994, giving petitioner until July 27, 1994 within
which to submit his formal offer of evidence and file his memorandum and thereafter considering the case submitted for resolution, be
fully enforced.
The Commission reserved resolution of this matter.
Petitioner failed to make an offer of his evidence and file his memorandum. Instead he filed the instant petition forcertiorari alleging that
the Commission gravely abused its discretion in issuing the orders of June 7, 20, 27 and July 7, 1994. Petitioner reiterates his
contention that his witnesses be given time to examine the ballots and election documents before requiring them to execute affidavits;
that three additional precincts subject of his comments/ objections to the order on private respondent's formal offer of evidence be
excluded; and that the technical examination of the ballots by NBI experts be completed.
The issue in this case is whether the Commission committed a grave abuse of discretion in
(1) denying petitioner's motion for a further extension of the time within which to complete the technical examination
of ballots;
(2) admitting all of private respondent's documentary exhibits without considering petitioner's comments and
objections;
(3) giving petitioner only 15 days, instead of 45 days as prayed for by him, within which to submit the affidavits of his
witnesses; and

78

(4) denying petitioner's motion to allow his witnesses to view/examine ballots and other election documents before
executing their affidavits.
Petitioner contends that there are "huge, abnormal and unexplained discrepancies" between the election sheets and election returns,
on the one hand, and the result of the revision of the ballots, on the other hand, and that he, as "aggrieved party," has a right to show
(1) that the ballots found in the ballot boxes are not the ballots cast and canvassed on election day and (2) that there was "massive,
3
large-scale and fraudulent substitution/switching of ballots after election day." Petitioner claims that he can prove these points through
the testimonies of the chairmen of the board of election inspectors in the 174 precincts where there were "massive reversals" of results
but he was prevented from doing so by reason of the orders in question of the Commission, particularly the order of July 7, 1994
denying petitioner's motion to allow his witnesses to view, examine and identify ballots.
Private respondent disputes petitioner's assertions. He denies that the Commission committed an abuse of its discretion which he
contends must not only be grave but also patent to justify the issuance of the writ of certiorari. He further argues that certiorari does not
lie in this case, because petitioner failed to file motions for reconsideration of the orders in question before filing the present petition.
Private respondent's contention is well taken.
As the above recital of facts shows, petitioner had been given sufficient time to prove his allegations. The grant of further extension to
him would be inconsistent with the summary nature of the proceedings, especially given the proximity of the May 1995 elections.
Petitioner's request to have his witnesses examine and identify the ballots appears to be actually an attempt to circumvent the first
order dated June 7, 1994 which denied his motion for additional time to finish the technical examination of the ballots and other election
documents. Petitioner had been given, at first, a period of 30 days (April 4 to May 4, 1994) and, then, 25 more days (from May 17 to
June 10, 1994) for the technical examination of election documents. Altogether he was given 55 days to complete the technical
examination of election documents. Despite this, however, he still wanted further extension.
Various reasons were given for petitioner's failure to complete the technical examination of the ballots, i.e., that the xerox machine to be
used for the technical examination had not been delivered by the company from which he had purchased it; that the mother of
petitioner's counsel, Atty. Alfredo C. Lim, passed away while the latter's partner, Atty. Augusto Pardalis, could not come to Manila
because of pending cases in Bicol; and that although petitioner was granted further time from May 17, 1994 to June 10, 1994, the
technical examination could not resume until on May 23, 1994 because the NBI did not want to proceed unless shown the
Commission's order granting extension. These reasons, as the Commission ruled, did not justify the request for further extension,
because they were not attributable to it or to private respondent.
The Commission likewise granted petitioner reasonable time to prove his allegation. At the hearing on June 20, 1994 he was
required to present his evidence but he refused to proceed, insisting on a prior ruling by the Commission on his objections to
private respondent's exhibits. But he could not present his written objections which he said he had sent through the mail from
Naga City on June 17. He could have produced a copy of his objections, or he could have made his oral objections, but he did
not. The fact is that even as late as July 7, 1994, when the Commission denied his request to have his witnesses examine and
identify the ballots, his written objections had not yet been received by the Commission.
Consequently, the Commission proceeded to rule on the offer of evidence of private respondent, even as it gave petitioner another
chance to present his evidence. For this purpose it reset the hearing on June 27. Still, petitioner was in no position to present his
evidence. At his request he was allowed to present the affidavits of witnesses. He was granted 15 days (June 27-JuIy 12, 1994). In.
addition, he was granted another period of 15 days (July 12-July 27, 1994) within which to make an offer of evidence and submit his
memorandum. But again he failed to present his evidence. There is no basis for his allegation that he was "practically forced" to agree
to submit the affidavits of witnesses in lieu of their testimonies, considering that it was his own failure twice to present them which
"forced" him to agree to submit instead their affidavits. It was, therefore, contrary to his own undertaking for him to demand later that his
witnesses be first allowed to view, examine and identify the ballots before they gave their affidavits, or that they be allowed to testify.
For the foregoing reasons we hold that the Commission did not commit any abuse of its discretion in issuing its order of June 7, 1994
denying petitioner's motion for further time to have a technical examination of the ballots, its order of June 27, 1994 requiring petitioner
to submit the affidavits of witnesses in lieu of their oral testimonies and its order of July 7, 1994, denying "with finality" petitioner's
request for his witnesses to examine the election documents or to testify personally at a hearing.
It is insisted, however, that it is absolutely necessary for petitioner to have the Chairmen of the Board of Election Inspectors of 174
precincts go over the ballots because of the discrepancy between the result of the canvass and those of the revision of ballots.
According to petitioner, in 174 precincts, the tally sheets and election returns credited him with 16,322 votes but in the revision of ballots
he was credited with only 2,631 votes, thus reducing his votes by 13,700. On the other hand, he says, while the tally sheets and
election returns gave private respondent only 5,068 votes, the result of the revision of ballots showed that he obtained 21,269 votes,
thus increasing his votes by 16,001. Petitioner argues that although generally the best evidence of the result of the election are not the
4
election returns but the result of the revision of the ballots, the rule does not apply if it is shown that the ballots were substituted or
altered after the election. In such a case it is the election returns which must prevail.

79

Petitioner's contention assumes the very fact in dispute. Whether the ballots in this case were indeed tampered with, is a question
which the petitioner has to prove. That there is a "huge discrepancy" between the result of the canvass and that of the revision is no
proof that the Commission committed a grave abuse of discretion in denying his request for additional time to conduct a technical
examination of election documents and to have his witnesses examine the ballots before requiring them to make their affidavits. For as
already stated, he was given sufficient time to present proof of tampering or substitution of ballots but he failed to do so. Petitioner thus
begs the question when he claims that because the ballots have been tampered with, the elections returns constitute the best evidence
of the result of the election.
Moreover, the converse also appears to be true: There were also sharp discrepancies between what the election returns, which were
used in the canvass at the municipal/city level, contained and what the certificates of canvass used by the Provincial Board of
Canvassers at the provincial level showed. Thus, private respondent charges that:
To illustrate, during the revision proceeding for Precinct 11-A, Municipality of Cabusao, the election return showed
that Petitioner Bulaong obtained 86 votes. However, in the statement of votes for the same precinct, which was the
basis of the Municipal Certificate of Canvass used at the Provincial Board of Canvassers the votes for Petitioner
Bulaong was already made into 106 votes, but when the ballots for the same precinct were recounted during the
5
revision, Petitioner Bulaong was discovered to have obtained only 85 votes.
Anyway the question whether there has been substitution of ballots and what the actual result of the election is, will still be determined
by the Commission when it undertakes its own independent evaluation and appreciation of the contested ballots and election
documents. As we have held, handwriting experts, while probably useful, are not indispensable in examining or comparing handwriting;
this can be done by the COMELEC itself. As for the allegedly fake ballots, no better authority than the COMELEC can determine their
6
authenticity, having itself ordered and supervised the printing of all the official ballots. We cannot overemphasize the fact that the
Commission on Elections under the Constitution is the agency vested with exclusive original 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
7
with by this Court.
Nor did the Commission commit a grave abuse of its discretion in issuing its order of June 20, 1994 admitting private respondent's
documentary exhibits and order of July 7, 1994, denying petitioner's motion for reconsideration. Petitioner alleges that the
Commission's ruling on the offer of evidence of private respondent was made with undue haste and without the Commission even
considering his comments and objections. He claims he was prejudiced because certain exhibits pertaining to Precinct Nos. 77, 84-B
and 99 in Iriga City, which had previously been excluded by the Commission on March 14, 1994, were offered by private respondent
and admitted by the Commission.
The contention has no merit. As the Commission explained:
On June 20, 1994, the scheduled date of hearing, the deadline for protestee to submit his comment and/or objections
to protestant's offer of exhibits, protestee appeared but did not personally file the said comment and/or objections. He
manifested that the same was mailed to the Commission on June 17, 1994 from Naga City. To date, the Commission
(First Division) has not received said Comment and/or Objections allegedly sent thru the mail by protestee from Naga
8
City.
The exhibits of private respondent consisted mainly of the official revision results. As they are official documents forming part of the
official records of the Commission itself, it was not even necessary for the Commission to rule upon their admissibility. Furthermore, the
Commission admitted them "for whatever they may be worth," without ruling upon their relevance and materiality to the issues in the
case. Petitioner's apprehension that his comments and objections were not considered by the Commission is, therefore, unfounded.
WHEREFORE, the petition is DISMISSED for lack of merit.
SO ORDERED.
EN BANC
G.R. No. 201796

January 15, 2013

GOVERNOR SADIKUL A. SAHALI and VICE-GOVERNOR RUBY M. SAHALl, Petitioners,

vs.
COMMISSION ON ELECTIONS (FIRST DIVISION), RASHIDIN H. MA TBA and JILKASI J. USMAN,Respondents.
RESOLUTION

80

REYES, J.:
This is a Petition for Certiorari under Rule 65 in relation to Rule 64 of the Rules of Court filed by Sadikul A. Sahali (Sadikul) and Ruby
1
M. Sahali (Ruby), assailing the Order dated May 3, 2012 issued by the First Division of the Commission on Elections (COMELEC) in
EPC Nos. 2010-76 and 2010-77.
During the May 10, 2010 elections, Sadikul and private respondent Rashidin H. Matba (Matba) were two of the four candidates who ran
for the position of governor in the Province of Tawi-Tawi while Ruby and private respondent Jilkasi J. Usman (Usman) ran for the
2
position of Vice-Governor.
On May 14, 2010, the Provincial Board of Canvassers (PBOC) proclaimed petitioners Sadikul and Ruby as the duly elected governor
and vice-governor, respectively, of the province of Tawi-Tawi. In the statement of votes issued by the PBOC, petitioner Sadikul
3
garnered a total of 59,417 as against private respondent Matbas 56,013, while petitioner Ruby prevailed over private respondent
4
Usman, with votes of 61,005 and 45,127, respectively.
Alleging that the said elections in the Province of Tawi-Tawi were attended by massive and wide-scale irregularities, Matba filed an
5
Election Protest Ad Cautelam with the COMELEC. Matba contested the results in 39 out of 282 clustered precincts that functioned in
the province of Tawi-Tawi. The said election protest filed by Matba was raffled to the First Division of the COMELEC and was docketed
as EPC No. 2010-76.
6

Usman also filed an Election Protest Ad Cautelam with the COMELEC, contesting the results in 39 out of the 282 clustered precincts in
the Province of Tawi-Tawi. Usmans election protest was likewise raffled to the First Division of the COMELEC and was docketed as
EPC No. 2010-77. The respective election protests filed by private respondents Matba and Usman prayed, inter alia, for the technical
examination of the ballots, Election Day Computerized Voters List (EDCVL), the Voters Registration Record (VRR), and the Book of
7
Voters in all the protested precincts of the province of Tawi-Tawi.
8

After Sadikul filed his Answer with counter-protest, a preliminary conference was conducted by the COMELEC in EPC No. 2010-76.
9
On November 24, 2011, the COMELEC issued a Preliminary Conference Order in EPC No. 2010-76. Thereafter, the COMELEC
10
issued an Order dated November 23, 2011 which directed the retrieval and delivery of the 39 ballot boxes containing the ballots in the
39 protested clustered precincts as well as the election paraphernalia therein.
11

Meanwhile, in EPC No. 2010-77, the COMELEC, after Rubys filing of her Answer with counter-protest, conducted a preliminary
12
conference on January 4, 2012. On January 20, 2012, the COMELEC issued its Preliminary Conference Order in the said case.
On January 17, 2012, the COMELEC resolved to consolidate EPC No. 2010-76 and EPC No. 2010-77.
On February 9, 2012, the retrieval and delivery of the ballot boxes and other election documents from the 39 protested precincts were
completed. On February 20, 2012, the COMELEC First Division ordered the recount of the contested ballots, directing the creation of
13
five recount committees for the said purpose.
On February 24, 2012, Matba and Usman filed a Manifestation and Ex-Parte Motion (Re: Order Dated 20 February 2012), requesting
that they be allowed to secure photocopies of the contested ballots. Further, they moved for a technical examination of the EDCVL, the
VRR and the Book of Voters for the contested precincts in the province of Tawi-Tawi by comparing the signature and the thumbmarks
14
appearing on the EDCVL as against those appearing on the VRRs and the Book of Voters.
Private respondents Matba and Usman averred that, instead of recounting the ballots in the pilot precincts constituting 20% of the
protested precincts, the COMELEC First Division should order the technical examination of the said election paraphernalia from the 38
clustered precincts that are the subject of both election protests filed by them.
15

On March 5, 2012, the COMELEC First Division issued an Order which granted the said ex-parte motion filed by Matba and Usman.
Thus, the COMELEC First Division directed its Election Records and Statistics Department (ERSD) to conduct a technical examination
of the said election paraphernalia by comparing the signature and thumbmarks appearing on the EDCVL as against those appearing on
the VRRs and the Book of Voters.
On March 9, 2012, Sadikul and Ruby jointly filed with the COMELEC First Division a Strong Manifestation of Grave Concern and Motion
16
for Reconsideration (Of the Order Dated March 5, 2012) . They asserted that the March 5, 2012 Order issued by the COMELEC First
Division, insofar as it directed the technical examination of the EDCVL, the VRR and the Book of Voters, should be reversed on account
of the following: first, the said Order was issued without due process since the COMELEC First Division did not allow them to oppose
the said ex-parte motion; second, the COMELEC First Division cannot just order a technical examination in the absence of published
rules on the matter; and third, the COMELEC First Division could not just examine the said election paraphernalia without violating the
Precautionary Protection Order issued by the Presidential Electoral Tribunal in the protest case between Manuel Roxas and Jejomar
Binay.

81

17

On March 15, 2012, Matba and Usman filed with the COMELEC First Division their counter-manifestation to the said manifestation
and motion for reconsideration filed by Sadikul and Ruby. They asserted therein that Sadikul and Ruby were not deprived of due
process when the COMELEC First Division issued its March 15, 2012 Order. They averred that their respective election protests and
the Preliminary Conference Orders issued by the COMELEC First Division all indicated that they would move for the technical
examination of the said election paraphernalia. Nonetheless, they pointed out that Sadikul and Ruby failed to express any objection to
their intended motion for technical examination of the said election paraphernalia.
Further, Matba and Usman claimed that said motion for technical examination is not a contentious motion since the intended technical
examination would not prejudice the rights of Sadikul and Ruby considering that the same only included the EDCVL, the VRR and the
Book of Voters, and not the ballots.
18

On March 23, 2012, Sadikul and Ruby then filed with the COMELEC First Division their Reply to the counter-manifestation filed by
19
Matba and Usman. In turn, Matba and Usman filed with the COMELEC First Division their Rejoinder on March 30, 2012. On May 3,
20
2012, the COMELEC First Division issued the herein assailed Order which denied the said motion for reconsideration of the March 5,
2012 Order filed by Sadikul and Ruby. The COMELEC First Division maintained that Sadikul and Ruby were not deprived of due
process. It pointed out that the intention of Matba and Usman to ask for the technical examination of the said election documents had
always been apparent from the filing of their separate election protests, preliminary conference briefs and their intention to offer as
evidence all election documents and paraphernalia such as the EDCVL, VRRs and Book of Voters on the protested precincts.
Further, the COMELEC First Division opined that the insinuation asserted by Sadikul and Ruby that there are no published rules
governing the technical examination of election paraphernalia is untenable. It pointed out that the technical examination of election
paraphernalia is governed by Section 1, Rule 18 of COMELEC Resolution No. 8804. As to the Precautionary Protection Order issued in
the protest case between Manuel Roxas and Jejomar Binay, the COMELEC First Division averred that it would request a clearance
from the Presidential Electoral Tribunal for the conduct of said technical examination.
Hence, petitioners Sadikul and Ruby filed the instant petition with this Court essentially asserting that the COMELEC First Division
committed grave abuse of discretion amounting to lack or excess of jurisdiction when: first, it did not give them the opportunity to
oppose the motion for technical examination filed by Matba and Usman; and second, it ordered the technical examination of the said
election paraphernalia despite the lack of sanction and published rules governing such examination.
The petition is denied.
The petitioners resort to the extraordinary remedy of certiorari to assail an interlocutory order issued by the COMELEC First Division is
amiss. "A party aggrieved by an interlocutory order issued by a Division of the COMELEC in an election protest may not directly assail
the order in this Court through a special civil action for certiorari. The remedy is to seek the review of the interlocutory order during the
21
appeal of the decision of the Division in due course."
Under the Constitution, the power of this Court to review election cases falling within the original exclusive jurisdiction of the COMELEC
only extends to final decisions or resolutions of the COMELEC en banc, not to interlocutory orders issued by a Division thereof. Section
7, Article IX of the Constitution mandates:
Sec. 7. Each Commission shall decide by a majority vote of all its Members any case or matter brought before it within sixty days from
the date of its submission for decision or resolution. A case or matter is deemed submitted for decision or resolution upon the filing of
the last pleading, brief, or memorandum required by the rules of the Commission or by the Commission itself. Unless otherwise
provided by this Constitution or by law, any decision, order, or ruling of each Commission may be brought to the Supreme Court on
certiorari by the aggrieved party within thirty days from receipt of a copy thereof. (Emphasis ours)
In Ambil, Jr. v. COMELEC,

22

this Court elucidated on the import of the said provision in this wise:

We have interpreted this provision to mean final orders, rulings and decisions of the COMELEC rendered in the exercise of its
adjudicatory or quasi-judicial powers." This decision must be a final decision or resolution of the Comelec en banc, not of a division,
certainly not an interlocutory order of a division. The Supreme Court has no power to review via certiorari, an interlocutory order or even
a final resolution of a Division of the Commission on Elections.
The mode by which a decision, order or ruling of the Comelec en banc may be elevated to the Supreme Court is by the special civil
action of certiorari under Rule 65 of the 1964 Revised Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil
Procedure, as amended.
Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be no appeal, or any plain, speedy and adequate
remedy in the ordinary course of law. A motion for reconsideration is a plain and adequate remedy provided by law. Failure to abide by
this procedural requirement constitutes a ground for dismissal of the petition.

82

In like manner, a decision, order or resolution of a division of the Comelec must be reviewed by the Comelec en banc via a motion for
reconsideration before the final en banc decision may be brought to the Supreme Court on certiorari. The pre-requisite filing of a motion
23
for reconsideration is mandatory. x x x. (Citations omitted and emphasis supplied)
Here, the Orders dated March 5, 2012 and May 3, 2012 issued by the First Division of the COMELEC were merely interlocutory orders
since they only disposed of an incident in the main case i.e. the propriety of the technical examination of the said election
paraphernalia. Thus, the proper recourse for the petitioners is to await the decision of the COMELEC First Division in the election
protests filed by Matba and Usman, and should they be aggrieved thereby, to appeal the same to the COMELEC en banc by filing a
24
motion for reconsideration.
25

The petitioners, citing the case of Kho v. COMELEC, nevertheless insist that this Court may take cognizance of the instant Petition for
Certiorari since the COMELEC en banc is not the proper forum in which the said interlocutory orders issued by the COMELEC First
Division can be reviewed.
The petitioners reliance on Kho is misplaced. In Kho, the issue was whether a Division of the COMELEC may admit an answer with
counter-protest which was filed beyond the reglementary period. This Court held that the COMELEC First Division gravely abused its
discretion when it admitted the answer with counter-protest that was belatedly filed.
On the propriety of a filing a Petition for Certiorari with this Court sans any motion for reconsideration having been filed with the
COMELEC en banc, it was held therein that, as an exception, direct resort to this Court via certiorari assailing an interlocutory order
may be allowed when a Division of the COMELEC commits grave abuse of discretion tantamount to lack of jurisdiction. Thus:
As to the issue of whether or not the case should be referred to the COMELEC en banc, this Court finds the respondent COMELEC
First Division correct when it held in its order dated February 28, 1996 that no final decision, resolution or order has yet been made
which will necessitate the elevation of the case and its records to the Commission en banc. No less than the Constitution requires that
the election cases must be heard and decided first in division and any motion for reconsideration of decisions shall be decided by the
commission en banc. Apparently, the orders dated July 26, 1995, November 15 1995 and February 28, 1996 and the other orders
relating to the admission of the answer with counter-protest are issuances of a Commission in division and are all interlocutory orders
because they merely rule upon an incidental issue regarding the admission of Espinosas answer with counter-protest and do not
terminate or finally dispose of the case as they leave something to be done before it is finally decided on the merits. In such a situation,
the rule is clear that the authority to resolve incidental matters of a case pending in a division, like the questioned interlocutory orders,
falls on the division itself, and not on the Commission en banc. x x x
xxxx
Furthermore, a look at Section 2, Rule 3 of the COMELEC Rules of Procedure confirms that the subject case does not fall on any of the
instances over which the Commission en banc can take cognizance of. It reads as follows:
"Section 2. The Commission en banc. - The Commission shall sit en banc in cases hereinafter specifically provided, or in preproclamation 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
26
certiorari under Rule 65 of the Rules of Court. (Citations omitted and emphasis ours)
Thus, exceptionally, this Court may take cognizance of a certiorari action directed against an interlocutory order issued by a Division of
the COMELEC when the following circumstances are present: first, the order was issued without jurisdiction or in excess of jurisdiction
or with grave abuse of discretion tantamount to lack or excess of jurisdiction; and second, under the COMELEC Rules of Procedure,
the subject of the controversy is a matter which (1) the COMELEC en banc may not sit and consider or (2) a Division is not authorized
27
to act or (3) the members of the Division unanimously vote to refer to the COMELEC en banc.
The exception in Kho does not apply in the instant case since the COMELEC First Division is authorized to act on the ex-parte motion
for the technical examination of the said election paraphernalia. The COMELEC First Division has already acquired jurisdiction over the
election protests filed by Matba and Usman. Concomitant with such acquisition of jurisdiction is the authority of the COMELEC First

83

Division to rule on the issues raised by the parties and all incidents arising therefrom, including the authority to act on the ex-parte
motion for technical examination of said election paraphernalia.
In Kho, the COMELEC First Division did not acquire jurisdiction on the answer with counter-protest since it was filed beyond the
reglementary period and, consequently, did not have any authority to act on the issues raised therein and all incidents arising
therefrom. Thus:
It is worthy to note that as early as in the case of Arrieta vs. Rodriguez, this Court had firmly settled the rule that the counter-protest
must be filed within the period provided by law, otherwise, the forum loses its jurisdiction to entertain the belatedly filed counter-protest.
In the case at bar, there is no question that the answer with counter-protest of Espinosa was filed outside the reglementary period
provided for by law. As such, the COMELEC First Division has no jurisdictional authority to entertain the belated answer with counterprotest much less pass upon and decide the issues raised therein. It follows therefore that the order of July 26, 1995 which pertains to
the admission of the answer with counter-protest of Espinosa as well as the other consequent orders implementing the order of
admission issued by the COMELEC First Division are void for having been issued without jurisdiction. Even if petitioner Kho did not file
a motion for reconsideration of the order dated July 26, 1995 admitting the answer with counter-protest, the jurisdictional infirmity,
brought about by the late filing of the answer to the protest, persist and can not be cured by the omission on the part of the protestee28
petitioner to seek a reconsideration of the order dated July 26, 1995. (Citation omitted and emphasis ours)
Even if this Court is to disregard the procedural lapse committed by the petitioners and rule on the issues raised, the instant petition
would still be denied.
The petitioners claim that they were denied due process when the COMELEC granted the motion for technical examination filed by
Matba and Usman without giving them the opportunity to oppose the said motion.
This Court does not agree.
It bears stressing that the COMELEC, in election disputes, is not duty-bound to notify and direct a party therein to file an opposition to a
motion filed by the other party. It is incumbent upon the party concerned, if he/she deems it necessary, to file an opposition to a motion
within five days from receipt of a copy of the same without awaiting for the COMELECs directive to do so. On this score, Section 3,
29
Rule 9 of COMELEC Resolution No. 8804 clearly provides that:
Sec. 3. No hearings on motions. Motions shall not be set for hearing unless the Commission directs otherwise. Oral argument in
support thereof shall be allowed only upon the discretion of the Commission. The adverse party may file opposition five days from
receipt of the motion, upon the expiration of which such motion is deemed submitted for resolution. The Commission shall resolve the
motion within five days. (Emphasis ours)
If the party concerned, despite receipt of a copy of the motion that was filed with the COMELEC, did not file an opposition to the said
motion, the motion would be deemed submitted for resolution upon the expiration of the period to file an opposition thereto.
It should be stressed that one of the factors that should be considered in election protests is expediency. Proceedings in election
protests are special and expeditious and the early resolution of such cases should not be hampered by any unnecessary observance of
30
procedural rules. "The proceedings should not be encumbered by delays. All of these are because the term of elective office is
likewise short. There is the personal stake of the contestants which generates feuds and discords. Above all is the public interest. Title
to public elective office must not be left long under cloud. Efficiency of public administration should not be impaired. It is thus
31
understandable that pitfalls which may retard the determination of election contests should be avoided."
Here, the petitioners did not file an opposition to the said motion for technical examination that was filed by Matba and Usman on
February 24, 2012. It was only after the COMELEC First Division issued its March 5, 2012 Order that the petitioners decided to register
their opposition to the intended technical examination, albeit in the form of a motion for reconsideration of the said Order. Contrary to
the petitioners claim, Section 3, Rule 9 of COMELEC Resolution No. 8804 gave them the opportunity to raise their objections to the
said motion for technical examination. However, for reasons known only to them, petitioners did not file any opposition to the said
motion. Accordingly, it is the petitioners themselves and not the COMELEC First Division who should be faulted for their predicament.
Further, this Court cannot see how due process was denied to the petitioners in the issuance of the COMELEC First Divisions March 5,
2012 Order. The petitioners were able to present their opposition to the said motion for technical examination in their manifestation and
motion for reconsideration which they filed with the COMELEC First Division on March 9, 2012. Indeed, the petitioners objections to the
technical examination of the said election paraphernalia were exhaustively discussed by the COMELEC First Division in its May 3, 2012
Resolution. Having filed a motion for reconsideration of the COMELEC First Divisions March 5, 2012 Order, the petitioners claim of
denial of due process is clearly unfounded.
The petitioners should be reminded that due process does not necessarily mean or require a hearing, but simply an opportunity or right
to be heard. One may be heard, not solely by verbal presentation but also, and perhaps many times more creditably and predictable

84

than oral argument, through pleadings. 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. Indeed, deprivation of due
32
process cannot be successfully invoked where a party was given the chance to be heard on his motion for reconsideration.
Anent the issue on the technical examination of election paraphernalia, the petitioners contend that the COMELEC First Division cannot
order a technical examination of the said election paraphernalia since there is as yet no published rule therefor. They assert that
Section 1, Rule 18 of COMELEC Resolution No. 8804, the rule relied upon by the COMELEC First Division in ordering a technical
examination, is vague as it failed to provide the documents that should be subjected to technical examination in election protest cases.
At the core of the petitioners assertion is the power of the COMELEC First Division to order the technical examination of the said
election paraphernalia. This Court agrees with the petitioners that Section 1, Rule 18 of COMELEC Resolution No. 8804 does not
expressly authorize the conduct of technical examination of election paraphernalia as it merely provides for the procedure to be
followed in the presentation and reception of evidence in election protest cases.
Section 1, Rule 18 of COMELEC Resolution No. 8804, in part, reads:
Sec. 1. Presentation and reception of evidence; order of hearing. - The reception of evidence on all matters or issues raised in the
protest and counter-protests shall be presented and offered in a hearing upon completion of (a) the recount of ballots, or re-tabulation of
election documents, or (b) the technical examination, if warranted.
xxxx
While Section 1, Rule 18 of COMELEC Resolution No. 8804 does not explicitly provide for the rule on the technical examination of
election paraphernalia, it does not mean, however, that the COMELEC First Division does not have the power to order the conduct of
such technical examination.
The absence of a rule which specifically mandates the technical examination of the said election paraphernalia does not mean that the
COMELEC First Division is barred from issuing an order for the conduct thereof. The power of the COMELEC First Division to order the
technical examination election paraphernalia in election protest cases stems from its "exclusive original jurisdiction over all contest
33
relating to the elections, returns and qualifications of all elective regional, provincial and city officials".
Otherwise stated, the express grant of power to the COMELEC to resolve election protests carries with it the grant of all other powers
necessary, proper, or incidental to the effective and efficient exercise of the power expressly granted. Verily, the exclusive original
jurisdiction conferred by the constitution to the COMELEC to settle said election protests includes the authority to order a technical
examination of relevant election paraphernalia, election returns and ballots in order to determine whether fraud and irregularities
attended the canvass of the votes.
second to none perhaps, except for the genuine will of the majority. To be sure, an election controversy which by its very nature
touches upon the ascertainment of the peoples choice, as gleaned from the medium of the ballot, should be resolved with utmost
dispatch, precedence and regard to due process."There is no gainsaying that the COMELEC is mandated by law to resolve election
cases expeditiously and promptly. "For in this specie of controversies involving the determination of the true will of the electorate, time
34
indeed is of paramount importance
Concomitant to the COMELECs duty to expeditiously resolve election cases is the authority to resort to every reasonable and efficient
means available to it to settle the controversy. The COMELEC is thus enjoined, "not only to maintain its sense of urgency in resolving
35
these cases, but also to explore every reasonable and feasible means of ascertaining which candidate was duly elected." Thus, this
Court has declared:
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
36
means within its command who is the real candidate elected by the people. (Emphasis ours)
Here, the technical examination ordered by the COMELEC First Division, by comparing the signature and the thumbmarks appearing
on the EDCVL as against those appearing on the VRRs and the Book of Voters, is a reasonable, efficient and expeditious means of
determining the truth or falsity of the allegations of fraud and irregularities in the canvass of the votes in the province of Tawi-Tawi.
Accordingly, the COMELEC First Division did not commit any abuse of discretion when it allowed the technical examination of the said
election paraphernalia.

85

WHEREFORE, in consideration of the foregoing disquisitions, the petition is DENIED. The assailed Order dated May 3, 2012 issued by
the First Division of the Commission on Elections in EPC Nos. 2010-76 and 2010-77 is AFFIRMED.
SO ORDERED.

EN BANC
G.R. No. 159139

January 13, 2004

INFORMATION TECHNOLOGY FOUNDATION OF THE PHILIPPINES, MA. CORAZON M. AKOL, MIGUEL UY, EDUARDO H.
LOPEZ, AUGUSTO C. LAGMAN, REX C. DRILON, MIGUEL HILADO, LEY SALCEDO, and MANUEL ALCUAZ JR., petitioners,
vs.
COMMISSION ON ELECTIONS; COMELEC CHAIRMAN BENJAMIN ABALOS SR.; COMELEC BIDDING and AWARD
COMMITTEE CHAIRMAN EDUARDO D. MEJOS and MEMBERS GIDEON DE GUZMAN, JOSE F. BALBUENA, LAMBERTO P.
LLAMAS, and BARTOLOME SINOCRUZ JR.; MEGA PACIFIC eSOLUTIONS, INC.; and MEGA PACIFIC
CONSORTIUM, respondents.
DECISION
PANGANIBAN, J.:
1

There is grave abuse of discretion (1) when an act is done contrary to the Constitution, the law or jurisprudence; or (2) when it is
2
executed whimsically, capriciously or arbitrarily out of malice, ill will or personal bias. In the present case, the Commission on Elections
approved the assailed Resolution and awarded the subject Contract not only in clear violation of law and jurisprudence, but also in
reckless disregard of its own bidding rules and procedure. For the automation of the counting and canvassing of the ballots in the 2004
elections, Comelec awarded the Contract to "Mega Pacific Consortium" an entity that had not participated in the bidding. Despite this
grant, the poll body signed the actual automation Contract with "Mega Pacific eSolutions, Inc.," a company that joined the bidding but
had not met the eligibility requirements.
Comelec awarded this billion-peso undertaking with inexplicable haste, without adequately checking and observing mandatory financial,
technical and legal requirements. It also accepted the proferred computer hardware and software even if, at the time of the award, they
had undeniably failed to pass eight critical requirements designed to safeguard the integrity of elections, especially the following three
items:
They failed to achieve the accuracy rating criteria of 99.9995 percent set-up by the Comelec itself
They were not able to detect previously downloaded results at various canvassing or consolidation levels and to prevent
these from being inputted again
They were unable to print the statutorily required audit trails of the count/canvass at different levels without any loss of data
Because of the foregoing violations of law and the glaring grave abuse of discretion committed by Comelec, the Court has no choice
3
but to exercise its solemn "constitutional duty" to void the assailed Resolution and the subject Contract. The illegal, imprudent and
hasty actions of the Commission have not only desecrated legal and jurisprudential norms, but have also cast serious doubts upon the
poll bodys ability and capacity to conduct automated elections. Truly, the pith and soul of democracy -- credible, orderly, and peaceful
elections -- has been put in jeopardy by the illegal and gravely abusive acts of Comelec.
The Case
4

Before us is a Petition under Rule 65 of the Rules of Court, seeking (1) to declare null and void Resolution No. 6074 of the
Commission on Elections (Comelec), which awarded "Phase II of the Modernization Project of the Commission to Mega Pacific
Consortium (MPC);" (2) to enjoin the implementation of any further contract that may have been entered into by Comelec "either with
Mega Pacific Consortium and/or Mega Pacific eSolutions, Inc. (MPEI);" and (3) to compel Comelec to conduct a re-bidding of the
project.
The Facts

86

The following facts are not disputed. They were culled from official documents, the parties pleadings, as well as from admissions during
the Oral Argument on October 7, 2003.
5

On June 7, 1995, Congress passed Republic Act 8046, which authorized Comelec to conduct a nationwide demonstration of a
computerized election system and allowed the poll body to pilot-test the system in the March 1996 elections in the Autonomous Region
in Muslim Mindanao (ARMM).
6

On December 22, 1997, Congress enacted Republic Act 8436 authorizing Comelec to use an automated election system (AES) for the
process of voting, counting votes and canvassing/consolidating the results of the national and local elections. It also mandated the poll
body to acquire automated counting machines (ACMs), computer equipment, devices and materials; and to adopt new electoral forms
and printing materials.
Initially intending to implement the automation during the May 11, 1998 presidential elections, Comelec -- in its Resolution No. 2985
7
dated February 9, 1998 -- eventually decided against full national implementation and limited the automation to the Autonomous
Region in Muslim Mindanao (ARMM). However, due to the failure of the machines to read correctly some automated ballots in one
8
town, the poll body later ordered their manual count for the entire Province of Sulu.
In the May 2001 elections, the counting and canvassing of votes for both national and local positions were also done manually, as no
additional ACMs had been acquired for that electoral exercise allegedly because of time constraints.
On October 29, 2002, Comelec adopted in its Resolution 02-0170 a modernization program for the 2004 elections. It resolved to
conduct biddings for the three (3) phases of its Automated Election System; namely, Phase I - Voter Registration and Validation
System; Phase II - Automated Counting and Canvassing System; and Phase III - Electronic Transmission.
On January 24, 2003, President Gloria Macapagal-Arroyo issued Executive Order No. 172, which allocated the sum of P2.5 billion to
fund the AES for the May 10, 2004 elections. Upon the request of Comelec, she authorized the release of an additional P500 million.
On January 28, 2003, the Commission issued an "Invitation to Apply for Eligibility and to Bid," which we quote as follows:
"INVITATION TO APPLY FOR ELIGIBILITY AND TO BID
The Commission on Elections (COMELEC), pursuant to the mandate of Republic Act Nos. 8189 and 8436, invites interested
offerors, vendors, suppliers or lessors to apply for eligibility and to bid for the procurement by purchase, lease, lease with
option to purchase, or otherwise, supplies, equipment, materials and services needed for a comprehensive Automated
Election System, consisting of three (3) phases: (a) registration/verification of voters, (b) automated counting and consolidation
of votes, and (c) electronic transmission of election results, with an approved budget of TWO BILLION FIVE HUNDRED
MILLION (Php2,500,000,000) Pesos.
Only bids from the following entities shall be entertained:
a. Duly licensed Filipino citizens/proprietorships;
b. Partnerships duly organized under the laws of the Philippines and of which at least sixty percent (60%) of the
interest belongs to citizens of the Philippines;
c. Corporations duly organized under the laws of the Philippines, and of which at least sixty percent (60%) of the
outstanding capital stock belongs to citizens of the Philippines;
d. Manufacturers, suppliers and/or distributors forming themselves into a joint venture, i.e., a group of two (2) or more
manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible or liable for a particular
contract, provided that Filipino ownership thereof shall be at least sixty percent (60%); and
e. Cooperatives duly registered with the Cooperatives Development Authority.
Bid documents for the three (3) phases may be obtained starting 10 February 2003, during office hours from the Bids and
Awards Committee (BAC) Secretariat/Office of Commissioner Resurreccion Z. Borra, 7th Floor, Palacio del Governador,
Intramuros, Manila, upon payment at the Cash Division, Commission on Elections, in cash or cashiers check, payable to the
Commission on Elections, of a non-refundable amount of FIFTEEN THOUSAND PESOS (Php15,000.00) for each phase. For
this purpose, interested offerors, vendors, suppliers or lessors have the option to participate in any or all of the three (3)
phases of the comprehensive Automated Election System.

87

A Pre-Bid Conference is scheduled on 13 February 2003, at 9:00 a.m. at the Session Hall, Commission on Elections, Postigo
Street, Intramuros, Manila. Should there be questions on the bid documents, bidders are required to submit their queries in
writing to the BAC Secretariat prior to the scheduled Pre-Bid Conference.
Deadline for submission to the BAC of applications for eligibility and bid envelopes for the supply of the comprehensive
Automated Election System shall be at the Session Hall, Commission on Elections, Postigo Street, Intramuros, Manila on 28
February 2003 at 9:00 a.m.
The COMELEC reserves the right to review the qualifications of the bidders after the bidding and before the contract is
executed. Should such review uncover any misrepresentation made in the eligibility statements, or any changes in the
situation of the bidder to materially downgrade the substance of such statements, the COMELEC shall disqualify the bidder
upon due notice without any obligation whatsoever for any expenses or losses that may be incurred by it in the preparation of
9
its bid."
On February 11, 2003, Comelec issued Resolution No. 5929 clarifying certain eligibility criteria for bidders and the schedule of activities
for the project bidding, as follows:
"1.) Open to Filipino and foreign corporation duly registered and licensed to do business and is actually doing business in the
Philippines, subject to Sec. 43 of RA 9184 (An Act providing In the Modernization Standardization and Regulation of the
Procurement Activities of the Government and for other purposes etc.)
2.) Track Record:
a) For counting machines should have been used in at least one (1) political exercise with no less than Twenty
Million Voters;
b) For verification of voters the reference site of an existing data base installation using Automated Fingerprint
Identification System (AFIS) with at least Twenty Million.
3.) Ten percent (10%) equity requirement shall be based on the total project cost; and
4.) Performance bond shall be twenty percent (20%) of the bid offer.
RESOLVED moreover, that:
1) A. Due to the decision that the eligibility requirements and the rest of the Bid documents shall be released at the
same time, and the memorandum of Comm. Resurreccion Z. Borra dated February 7, 2003, the documents to be
released on Friday, February 14, 2003 at 2:00 oclock p.m. shall be the eligibility criteria, Terms of Reference (TOR)
and other pertinent documents;
B. Pre-Bid conference shall be on February 18, 2003; and
C. Deadline for the submission and receipt of the Bids shall be on March 5, 2003.
2) The aforementioned documents will be available at the following offices:
a) Voters Validation: Office of Comm. Javier
b) Automated Counting Machines: Office of Comm. Borra
c) Electronic Transmission: Office of Comm. Tancangco"

10

On February 17, 2003, the poll body released the Request for Proposal (RFP) to procure the election automation machines. The Bids
and Awards Committee (BAC) of Comelec convened a pre-bid conference on February 18, 2003 and gave prospective bidders until
March 10, 2003 to submit their respective bids.
Among others, the RFP provided that bids from manufacturers, suppliers and/or distributors forming themselves into a joint venture may
be entertained, provided that the Philippine ownership thereof shall be at least 60 percent. Joint venture is defined in the RFP as "a
group of two or more manufacturers, suppliers and/or distributors that intend to be jointly and severally responsible or liable for a
11
particular contract."

88

Basically, the public bidding was to be conducted under a two-envelope/two stage system. The bidders first envelope or the Eligibility
Envelope should establish the bidders eligibility to bid and its qualifications to perform the acts if accepted. On the other hand, the
second envelope would be the Bid Envelope itself. The RFP outlines the bidding procedures as follows:
"25. Determination of Eligibility of Prospective Bidders
"25.1 The eligibility envelopes of prospective Bidders shall be opened first to determine their eligibility. In case any of
the requirements specified in Clause 20 is missing from the first bid envelope, the BAC shall declare said prospective
Bidder as ineligible to bid. Bid envelopes of ineligible Bidders shall be immediately returned unopened.
"25.2 The eligibility of prospective Bidders shall be determined using simple pass/fail criteria and shall be determined
as either eligible or ineligible. If the prospective Bidder is rated passed for all the legal, technical and financial
requirements, he shall be considered eligible. If the prospective Bidder is rated failed in any of the requirements, he
shall be considered ineligible.
"26. Bid Examination/Evaluation
"26.1 The BAC will examine the Bids to determine whether they are complete, whether any computational errors have
been made, whether required securities have been furnished, whether the documents have been properly signed,
and whether the Bids are generally in order.
"26.2 The BAC shall check the submitted documents of each Bidder against the required documents enumerated
under Clause 20, to ascertain if they are all present in the Second bid envelope (Technical Envelope). In case one (1)
or more of the required documents is missing, the BAC shall rate the Bid concerned as failed and immediately return
to the Bidder its Third bid envelope (Financial Envelope) unopened. Otherwise, the BAC shall rate the first bid
envelope as passed.
"26.3 The BAC shall immediately open the Financial Envelopes of the Bidders whose Technical Envelopes were
passed or rated on or above the passing score. Only Bids that are determined to contain all the bid requirements for
both components shall be rated passed and shall immediately be considered for evaluation and comparison.
"26.4 In the opening and examination of the Financial Envelope, the BAC shall announce and tabulate the Total Bid
Price as calculated. Arithmetical errors will be rectified on the following basis: If there is a discrepancy between words
and figures, the amount in words will prevail. If there is a discrepancy between the unit price and the total price that is
obtained by multiplying the unit price and the quantity, the unit price shall prevail and the total price shall be corrected
accordingly. If there is a discrepancy between the Total Bid Price and the sum of the total prices, the sum of the total
prices prevail and the Total Bid Price shall be corrected accordingly.
"26.5 Financial Proposals which do not clearly state the Total Bid Price shall be rejected. Also, Total Bid Price as
calculated that exceeds the approved budget for the contract shall also be rejected.
27. Comparison of Bids
27.1 The bid price shall be deemed to embrace all costs, charges and fees associated with carrying out all the
elements of the proposed Contract, including but not limited to, license fees, freight charges and taxes.
27.2 The BAC shall establish the calculated prices of all Bids rated passed and rank the same in ascending order.
xxxxxxxxx
"29. Postqualification
"29.1 The BAC will determine to its satisfaction whether the Bidder selected as having submitted the lowest
calculated bid is qualified to satisfactorily perform the Contract.
"29.2 The determination will take into account the Bidders financial, technical and production capabilities/resources.
It will be based upon an examination of the documentary evidence of the Bidders qualification submitted by the
Bidder as well as such other information as the BAC deems necessary and appropriate.

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"29.3 A bid determined as not substantially responsive will be rejected by the BAC and may not subsequently be
made responsive by the Bidder by correction of the non-conformity.
"29.4 The BAC may waive any informality or non-conformity or irregularity in a bid which does not constitute a
material deviation, provided such waiver does not prejudice or affect the relative ranking of any Bidder.
"29.5 Should the BAC find that the Bidder complies with the legal, financial and technical requirements, it shall make
an affirmative determination which shall be a prerequisite for award of the Contract to the Bidder. Otherwise, it will
make a negative determination which will result in rejection of the Bidders bid, in which event the BAC will proceed to
12
the next lowest calculated bid to make a similar determination of that Bidders capabilities to perform satisfactorily."
13

Out of the 57 bidders, the BAC found MPC and the Total Information Management Corporation (TIMC) eligible. For technical
evaluation, they were referred to the BACs Technical Working Group (TWG) and the Department of Science and Technology (DOST).
In its Report on the Evaluation of the Technical Proposals on Phase II, DOST said that both MPC and TIMC had obtained a number of
failed marks in the technical evaluation. Notwithstanding these failures, Comelec en banc, on April 15, 2003, promulgated Resolution
No. 6074 awarding the project to MPC. The Commission publicized this Resolution and the award of the project to MPC on May 16,
2003.
On May 29, 2003, five individuals and entities (including the herein Petitioners Information Technology Foundation of the Philippines,
14
represented by its president, Alfredo M. Torres; and Ma. Corazon Akol) wrote a letter to Comelec Chairman Benjamin Abalos Sr. They
protested the award of the Contract to Respondent MPC "due to glaring irregularities in the manner in which the bidding process had
been conducted." Citing therein the noncompliance with eligibility as well as technical and procedural requirements (many of which
have been discussed at length in the Petition), they sought a re-bidding.
15

In a letter-reply dated June 6, 2003, the Comelec chairman -- speaking through Atty. Jaime Paz, his head executive assistant -rejected the protest and declared that the award "would stand up to the strictest scrutiny."
Hence, the present Petition.

16

The Issues
In their Memorandum, petitioners raise the following issues for our consideration:
"1. The COMELEC awarded and contracted with a non-eligible entity; x x x
"2. Private respondents failed to pass the Technical Test as required in the RFP. Notwithstanding, such failure was ignored. In
effect, the COMELEC changed the rules after the bidding in effect changing the nature of the contract bidded upon.
"3. Petitioners have locus standi.
"4. Instant Petition is not premature. Direct resort to the Supreme Court is justified."

17

In the main, the substantive issue is whether the Commission on Elections, the agency vested with the exclusive constitutional mandate
to oversee elections, gravely abused its discretion when, in the exercise of its administrative functions, it awarded to MPC the contract
for the second phase of the comprehensive Automated Election System.
Before discussing the validity of the award to MPC, however, we deem it proper to first pass upon the procedural issues: the legal
standing of petitioners and the alleged prematurity of the Petition.
This Courts Ruling
The Petition is meritorious.
First Procedural Issue:
Locus Standi of Petitioners

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Respondents chorus that petitioners do not possess locus standi, inasmuch as they are not challenging the validity or constitutionality
of RA 8436. Moreover, petitioners supposedly admitted during the Oral Argument that no law had been violated by the award of the
Contract. Furthermore, they allegedly have no actual and material interest in the Contract and, hence, do not stand to be injured or
prejudiced on account of the award.
On the other hand, petitioners -- suing in their capacities as taxpayers, registered voters and concerned citizens -- respond that the
issues central to this case are "of transcendental importance and of national interest." Allegedly, Comelecs flawed bidding and
questionable award of the Contract to an unqualified entity would impact directly on the success or the failure of the electoral process.
Thus, any taint on the sanctity of the ballot as the expression of the will of the people would inevitably affect their faith in the democratic
system of government. Petitioners further argue that the award of any contract for automation involves disbursement of public funds in
gargantuan amounts; therefore, public interest requires that the laws governing the transaction must be followed strictly.
We agree with petitioners. Our nations political and economic future virtually hangs in the balance, pending the outcome of the 2004
elections. Hence, there can be no serious doubt that the subject matter of this case is "a matter of public concern and imbued with
18
19
20
public interest"; in other words, it is of "paramount public interest" and "transcendental importance." This fact alone would justify
relaxing the rule on legal standing, following the liberal policy of this Court whenever a case involves "an issue of overarching
21
significance to our society." Petitioners legal standing should therefore be recognized and upheld.
22

Moreover, this Court has held that taxpayers are allowed to sue when there is a claim of "illegal disbursement of public funds," or if
23
public money is being "deflected to any improper purpose"; or when petitioners seek to restrain respondent from "wasting public funds
24
through the enforcement of an invalid or unconstitutional law." In the instant case, individual petitioners, suing as taxpayers, assert a
material interest in seeing to it that public funds are properly and lawfully used. In the Petition, they claim that the bidding was defective,
the winning bidder not a qualified entity, and the award of the Contract contrary to law and regulation. Accordingly, they seek to restrain
respondents from implementing the Contract and, necessarily, from making any unwarranted expenditure of public funds pursuant
thereto. Thus, we hold that petitioners possess locus standi.
Second Procedural Issue:
Alleged Prematurity Due to Non-Exhaustion of Administrative Remedies
Respondents claim that petitioners acted prematurely, since they had not first utilized the protest mechanism available to them under
RA 9184, the Government Procurement Reform Act, for the settlement of disputes pertaining to procurement contracts.
Section 55 of RA 9184 states that protests against decisions of the Bidding and Awards Committee in all stages of procurement may be
lodged with the head of the procuring entity by filing a verified position paper and paying a protest fee. Section 57 of the same law
mandates that in no case shall any such protest stay or delay the bidding process, but it must first be resolved before any award is
made.
On the other hand, Section 58 provides that court action may be resorted to only after the protests contemplated by the statute shall
have been completed. Cases filed in violation of this process are to be dismissed for lack of jurisdiction. Regional trial courts shall have
jurisdiction over final decisions of the head of the procuring entity, and court actions shall be instituted pursuant to Rule 65 of the 1997
Rules of Civil Procedure.
Respondents assert that throughout the bidding process, petitioners never questioned the BAC Report finding MPC eligible to bid and
recommending the award of the Contract to it (MPC). According to respondents, the Report should have been appealed to the Comelc
en banc, pursuant to the aforementioned sections of RA 9184. In the absence of such appeal, the determination and recommendation
of the BAC had become final.
The Court is not persuaded.
Respondent Comelec came out with its en banc Resolution No. 6074 dated April 15, 2003, awarding the project to Respondent MPC
even before the BAC managed to issue its written report and recommendation on April 21, 2003. Thus, how could petitioners have
appealed the BACs recommendation or report to the head of the procuring entity (the chairman of Comelec), when the Comelec en
banc had already approved the award of the contract to MPC even before petitioners learned of the BAC recommendation?
25

It is claimed by Comelec that during its April 15, 2003 session, it received and approved the verbal report and recommendation of the
BAC for the award of the Contract to MPC, and that the BAC subsequently re-affirmed its verbal report and recommendation by
submitting it in writing on April 21, 2003. Respondents insist that the law does not require that the BAC Report be in writing before
Comelec can act thereon; therefore, there is allegedly nothing irregular about the Report as well as the en banc Resolution.
However, it is obvious that petitioners could have appealed the BACs report and recommendation to the head of the procuring entity
(the Comelec chair) only upon their discovery thereof, which at the very earliest would have been on April 21, 2003, when the BAC

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actually put its report in writing and finally released it. Even then, what would have been the use of protesting/appealing the report to the
Comelec chair, when by that time the Commission en banc (including the chairman himself) had already approved the BAC Report and
awarded the Contract to MPC?
And even assuming arguendo that petitioners had somehow gotten wind of the verbal BAC report on April 15, 2003 (immediately after
the en banc session), at that point the Commission en banc had already given its approval to the BAC Report along with the award to
MPC. To put it bluntly, the Comelec en banc itself made it legally impossible for petitioners to avail themselves of the administrative
remedy that the Commission is so impiously harping on. There is no doubt that they had not been accorded the opportunity to avail
themselves of the process provided under Section 55 of RA 9184, according to which a protest against a decision of the BAC may be
26
27
filed with the head of the procuring entity. Nemo tenetur ad impossible, to borrow private respondents favorite Latin excuse.
Some Observations on the BAC Report to the Comelec
We shall return to this issue of alleged prematurity shortly, but at this interstice, we would just want to put forward a few observations
regarding the BAC Report and the Comelec en bancs approval thereof.
First, Comelec contends that there was nothing unusual about the fact that the Report submitted by the BAC came only after the former
had already awarded the Contract, because the latter had been asked to render its report and recommendation orally during the
Commissions en banc session on April 15, 2003. Accordingly, Comelec supposedly acted upon such oral recommendation and
approved the award to MPC on the same day, following which the recommendation was subsequently reduced into writing on April 21,
2003. While not entirely outside the realm of the possible, this interesting and unique spiel does not speak well of the process that
Comelec supposedly went through in making a critical decision with respect to a multi-billion-peso contract.
We can imagine that anyone else standing in the shoes of the Honorable Commissioners would have been extremely conscious of the
overarching need for utter transparency. They would have scrupulously avoided the slightest hint of impropriety, preferring to maintain
an exacting regularity in the performance of their duties, instead of trying to break a speed record in the award of multi-billion-peso
contracts. After all, between April 15 and April 21 were a mere six (6) days. Could Comelec not have waited out six more days for the
written report of the BAC, instead of rushing pell-mell into the arms of MPC? Certainly, respondents never cared to explain the nature of
the Commissions dire need to act immediately without awaiting the formal, written BAC Report.
In short, the Court finds it difficult to reconcile the uncommon dispatch with which Comelec acted to approve the multi-billion-peso deal,
with its claim of having been impelled by only the purest and most noble of motives.
At any rate, as will be discussed later on, several other factors combine to lend negative credence to Comelecs tale.
Second, without necessarily ascribing any premature malice or premeditation on the part of the Comelec officials involved, it should
nevertheless be conceded that this cart-before-the-horse maneuver (awarding of the Contract ahead of the BACs written report) would
definitely serve as a clever and effective way of averting and frustrating any impending protest under Section 55.
Having made the foregoing observations, we now go back to the question of exhausting administrative remedies. Respondents may not
28
have realized it, but the letter addressed to Chairman Benjamin Abalos Sr. dated May 29, 2003 serves to eliminate the prematurity
issue as it was an actual written protest against the decision of the poll body to award the Contract. The letter was signed by/for, inter
alia, two of herein petitioners: the Information Technology Foundation of the Philippines, represented by its president, Alfredo M.
Torres; and Ma. Corazon Akol.
Such letter-protest is sufficient compliance with the requirement to exhaust administrative remedies particularly because it hews closely
to the procedure outlined in Section 55 of RA 9184.
And even without that May 29, 2003 letter-protest, the Court still holds that petitioners need not exhaust administrative remedies in the
29
light of Paat v. Court of Appeals. Paat enumerates the instances when the rule on exhaustion of administrative remedies may be
disregarded, as follows:
"(1) when there is a violation of due process,
(2) when the issue involved is purely a legal question,
(3) when the administrative action is patently illegal amounting to lack or excess of jurisdiction,
(4) when there is estoppel on the part of the administrative agency concerned,
(5) when there is irreparable injury,

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(6) when the respondent is a department secretary whose acts as an alter ego of the President bears the implied and
assumed approval of the latter,
(7) when to require exhaustion of administrative remedies would be unreasonable,
(8) when it would amount to a nullification of a claim,
(9) when the subject matter is a private land in land case proceedings,
(10) when the rule does not provide a plain, speedy and adequate remedy, and
(11) when there are circumstances indicating the urgency of judicial intervention."

30

The present controversy precisely falls within the exceptions listed as Nos. 7, 10 and 11: "(7) when to require exhaustion of
administrative remedies would be unreasonable; (10) when the rule does not provide a plain, speedy and adequate remedy, and (11)
when there are circumstances indicating the urgency of judicial intervention." As already stated, Comelec itself made the exhaustion of
administrative remedies legally impossible or, at the very least, "unreasonable."
In any event, the peculiar circumstances surrounding the unconventional rendition of the BAC Report and the precipitate awarding of
the Contract by the Comelec en banc -- plus the fact that it was racing to have its Contract with MPC implemented in time for the
elections in May 2004 (barely four months away) -- have combined to bring about the urgent need for judicial intervention, thus
prompting this Court to dispense with the procedural exhaustion of administrative remedies in this case.
Main Substantive Issue:
Validity of the Award to MPC
We come now to the meat of the controversy. Petitioners contend that the award is invalid, since Comelec gravely abused its discretion
when it did the following:
1. Awarded the Contract to MPC though it did not even participate in the bidding
2. Allowed MPEI to participate in the bidding despite its failure to meet the mandatory eligibility requirements
3. Issued its Resolution of April 15, 2003 awarding the Contract to MPC despite the issuance by the BAC of its Report, which
31
formed the basis of the assailed Resolution, only on April 21, 2003
4. Awarded the Contract, notwithstanding the fact that during the bidding process, there were violations of the mandatory
requirements of RA 8436 as well as those set forth in Comelecs own Request for Proposal on the automated election system
5. Refused to declare a failed bidding and to conduct a re-bidding despite the failure of the bidders to pass the technical tests
conducted by the Department of Science and Technology
6. Failed to follow strictly the provisions of RA 8436 in the conduct of the bidding for the automated counting machines
After reviewing the slew of pleadings as well as the matters raised during the Oral Argument, the Court deems it sufficient to focus
discussion on the following major areas of concern that impinge on the issue of grave abuse of discretion:
A. Matters pertaining to the identity, existence and eligibility of MPC as a bidder
B. Failure of the automated counting machines (ACMs) to pass the DOST technical tests
C. Remedial measures and re-testings undertaken by Comelec and DOST after the award, and their effect on the present
controversy
A.
Failure to Establish the Identity, Existence and Eligibility of the Alleged Consortium as a Bidder

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On the question of the identity and the existence of the real bidder, respondents insist that, contrary to petitioners allegations, the
bidder was not Mega Pacific eSolutions, Inc. (MPEI), which was incorporated only on February 27, 2003, or 11 days prior to the bidding
itself. Rather, the bidder was Mega Pacific Consortium (MPC), of which MPEI was but a part. As proof thereof, they point to the March
7, 2003 letter of intent to bid, signed by the president of MPEI allegedly for and on behalf of MPC. They also call attention to the official
receipt issued to MPC, acknowledging payment for the bidding documents, as proof that it was the "consortium" that participated in the
bidding process.
We do not agree. The March 7, 2003 letter, signed by only one signatory -- "Willy U. Yu, President, Mega Pacific eSolutions, Inc., (Lead
Company/ Proponent) For: Mega Pacific Consortium" -- and without any further proof, does not by itself prove the existence of the
consortium. It does not show that MPEI or its president have been duly pre-authorized by the other members of the putative consortium
to represent them, to bid on their collective behalf and, more important, to commit them jointly and severally to the bid undertakings.
The letter is purely self-serving and uncorroborated.
Neither does an official receipt issued to MPC, acknowledging payment for the bidding documents, constitute proof that it was the
purported consortium that participated in the bidding. Such receipts are issued by cashiers without any legally sufficient inquiry as to the
real identity orexistence of the supposed payor.
To assure itself properly of the due existence (as well as eligibility and qualification) of the putative consortium, Comelecs BAC should
have examined the bidding documents submitted on behalf of MPC. They would have easily discovered the following fatal flaws.
Two-Envelope,
Two-Stage System
As stated earlier in our factual presentation, the public bidding system designed by Comelec under its RFP (Request for Proposal for
the Automation of the 2004 Election) mandated the use of a two-envelope, two-stage system. A bidders first envelope (Eligibility
Envelope) was meant to establish its eligibility to bid and its qualifications and capacity to perform the contract if its bid was accepted,
while the second envelope would be the Bid Envelope itself.
The Eligibility Envelope was to contain legal documents such as articles of incorporation, business registrations, licenses and permits,
mayors permit, VAT certification, and so forth; technical documents containing documentary evidence to establish the track record of
the bidder and its technical and production capabilities to perform the contract; and financial documents, including audited financial
statements for the last three years, to establish the bidders financial capacity.
In the case of a consortium or joint venture desirous of participating in the bidding, it goes without saying that the Eligibility Envelope
would necessarily have to include a copy of the joint venture agreement, the consortium agreement or memorandum of agreement -- or
a business plan or some other instrument of similar import -- establishing the due existence, composition and scope of such
aggrupation. Otherwise, how would Comelec know who it was dealing with, and whether these parties are qualified and capable of
32
delivering the products and services being offered for bidding?
In the instant case, no such instrument was submitted to Comelec during the bidding process. This fact can be conclusively ascertained
by scrutinizing the two-inch thick "Eligibility Requirements" file submitted by Comelec last October 9, 2003, in partial compliance with
this Courts instructions given during the Oral Argument. This file purports to replicate the eligibility documents originally submitted to
Comelec by MPEI allegedly on behalf of MPC, in connection with the bidding conducted in March 2003. Included in the file are the
incorporation papers and financial statements of the members of the supposed consortium and certain certificates, licenses and permits
issued to them.
However, there is no sign whatsoever of any joint venture agreement, consortium agreement, memorandum of agreement, or business
plan executed among the members of the purported consortium.
The only logical conclusion is that no such agreement was ever submitted to the Comelec for its consideration, as part of the bidding
process.
It thus follows that, prior the award of the Contract, there was no documentary or other basis for Comelec to conclude that a consortium
33
had actually been formed amongst MPEI, SK C&C and WeSolv, along with Election.com and ePLDT. Neither was there anything to
indicate the exact relationships between and among these firms; their diverse roles, undertakings and prestations, if any, relative to the
prosecution of the project, the extent of their respective investments (if any) in the supposed consortium or in the project; and the
precise nature and extent of their respective liabilities with respect to the contract being offered for bidding. And apart from the selfserving letter of March 7, 2003, there was not even any indication that MPEI was the lead company duly authorized to act on behalf of
the others.

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So, it necessarily follows that, during the bidding process, Comelec had no basis at all for determining that the alleged consortium really
existed and was eligible and qualified; and that the arrangements among the members were satisfactory and sufficient to ensure
delivery on the Contract and to protect the governments interest.
Notwithstanding such deficiencies, Comelec still deemed the "consortium" eligible to participate in the bidding, proceeded to open its
Second Envelope, and eventually awarded the bid to it, even though -- per the Comelecs own RFP -- the BAC should have declared
the MPC ineligible to bid and returned the Second (Bid) Envelope unopened.
Inasmuch as Comelec should not have considered MPEI et al. as comprising a consortium or joint venture, it should not have allowed
them to avail themselves of the provision in Section 5.4 (b) (i) of the IRR for RA 6957 (the Build-Operate-Transfer Law), as amended by
RA 7718. This provision states in part that a joint venture/consortium proponent shall be evaluated based on the individual or collective
experience of the member-firms of the joint venture or consortium and of the contractor(s) that it has engaged for the project.
Parenthetically, respondents have uniformly argued that the said IRR of RA 6957, as amended, have suppletory application to the
instant case.
Hence, had the proponent MPEI been evaluated based solely on its own experience, financial and operational track record or lack
thereof, it would surely not have qualified and would have been immediately considered ineligible to bid, as respondents readily admit.
At any rate, it is clear that Comelec gravely abused its discretion in arbitrarily failing to observe its own rules, policies and guidelines
with respect to the bidding process, thereby negating a fair, honest and competitive bidding.
Commissioners Not Aware of Consortium
In this regard, the Court is beguiled by the statements of Commissioner Florentino Tuason Jr., given in open court during the Oral
Argument last October 7, 2003. The good commissioner affirmed that he was aware, of his own personal knowledge, that there had
34
35
indeed been a written agreement among the "consortium" members, although it was an internal matter among them, and of the fact
36
that it would be presented by counsel for private respondent.
However, under questioning by Chief Justice Hilario G. Davide Jr. and Justice Jose C. Vitug, Commissioner Tuason in effect admitted
that, while he was the commissioner-in-charge of Comelecs Legal Department, he had never seen, even up to that late date, the
37
agreement he spoke of. Under further questioning, he was likewise unable to provide any information regarding the amounts invested
38
into the project by several members of the claimed consortium. A short while later, he admitted that the Commission had not taken a
39
look at the agreement (if any).
He tried to justify his position by claiming that he was not a member of the BAC. Neither was he the commissioner-in-charge of the
Phase II Modernization project (the automated election system); but that, in any case, the BAC and the Phase II Modernization Project
Team did look into the aspect of the composition of the consortium.
It seems to the Court, though, that even if the BAC or the Phase II Team had taken charge of evaluating the eligibility, qualifications and
credentials of the consortium-bidder, still, in all probability, the former would have referred the task to Commissioner Tuason, head of
Comelecs Legal Department. That task was the appreciation and evaluation of the legal effects and consequences of the terms,
conditions, stipulations and covenants contained in any joint venture agreement, consortium agreement or a similar document -assuming of course that any of these was available at the time. The fact that Commissioner Tuason was barely aware of the situation
bespeaks the complete absence of such document, or the utter failure or neglect of the Comelec to examine it -- assuming it was
available at all -- at the time the award was made on April 15, 2003.
In any event, the Court notes for the record that Commissioner Tuason basically contradicted his statements in open court about there
40
being one written agreement among all the consortium members, when he subsequently referred to the four (4) Memoranda of
41
Agreement (MOAs) executed by them.
At this juncture, one might ask: What, then, if there are four MOAs instead of one or none at all? Isnt it enough that there are these
corporations coming together to carry out the automation project? Isnt it true, as respondent aver, that nowhere in the RFP issued by
Comelec is it required that the members of the joint venture execute a single written agreement to prove the existence of a joint
venture. Indeed, the intention to be jointly and severally liable may be evidenced not only by a single joint venture agreement, but also
by supplementary documents executed by the parties signifying such intention. What then is the big deal?
The problem is not that there are four agreements instead of only one. The problem is that Comelec never bothered to check. It never
based its decision on documents or other proof that would concretely establish the existence of the claimed consortium or joint venture
or agglomeration. It relied merely on the self-serving representation in an uncorroborated letter signed by only one individual, claiming
that his company represented a "consortium" of several different corporations. It concluded forthwith that a consortium indeed existed,
composed of such and such members, and thereafter declared that the entity was eligible to bid.

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True, copies of financial statements and incorporation papers of the alleged "consortium" members were submitted. But these papers
did not establish the existence of a consortium, as they could have been provided by the companies concerned for purposes other than
to prove that they were part of a consortium or joint venture. For instance, the papers may have been intended to show that those
companies were each qualified to be a sub-contractor (and nothing more) in a major project. Those documents did not by themselves
support the assumption that a consortium or joint venture existed among the companies.
In brief, despite the absence of competent proof as to the existence and eligibility of the alleged consortium (MPC), its capacity to
deliver on the Contract, and the members joint and several liability therefor, Comelec nevertheless assumed that such consortium
existed and was eligible. It then went ahead and considered the bid of MPC, to which the Contract was eventually awarded, in gross
violation of the formers own bidding rules and procedures contained in its RFP. Therein lies Comelecs grave abuse of discretion.
Sufficiency of the Four Agreements
Instead of one multilateral agreement executed by, and effective and binding on, all the five "consortium members" -- as earlier claimed
by Commissioner Tuason in open court -- it turns out that what was actually executed were four (4) separate and distinct bilateral
42
Agreements. Obviously, Comelec was furnished copies of these Agreements only after the bidding process had been terminated, as
these were not included in the Eligibility Documents. These Agreements are as follows:
A Memorandum of Agreement between MPEI and SK C&C
A Memorandum of Agreement between MPEI and WeSolv
A "Teaming Agreement" between MPEI and Election.com Ltd.
A "Teaming Agreement" between MPEI and ePLDT
In sum, each of the four different and separate bilateral Agreements is valid and binding only between MPEI and the other contracting
party, leaving the other "consortium" members total strangers thereto. Under this setup, MPEI dealt separately with each of the
"members," and the latter (WeSolv, SK C&C, Election.com, and ePLDT) in turn had nothing to do with one another, each dealing only
with MPEI.
Respondents assert that these four Agreements were sufficient for the purpose of enabling the corporations to still qualify (even at that
late stage) as a consortium or joint venture, since the first two Agreements had allegedly set forth the joint and several undertakings
among the parties, whereas the latter two clarified the parties respective roles with regard to the Project, with MPEI being the
independent contractor and Election.com and ePLDT the subcontractors.
Additionally, the use of the phrase "particular contract" in the Comelecs Request for Proposal (RFP), in connection with the joint and
several liabilities of companies in a joint venture, is taken by them to mean that all the members of the joint venture need not be
solidarily liable for the entire project or joint venture, because it is sufficient that the lead company and the member in charge of a
particular contract or aspect of the joint venture agree to be solidarily liable.
At this point, it must be stressed most vigorously that the submission of the four bilateral Agreements to Comelec after the end of the
bidding process did nothing to eliminate the grave abuse of discretion it had already committed on April 15, 2003.
Deficiencies Have Not Been "Cured"
In any event, it is also claimed that the automation Contract awarded by Comelec incorporates all documents executed by the
"consortium" members, even if these documents are not referred to therein. The basis of this assertion appears to be the passages
from Section 1.4 of the Contract, which is reproduced as follows:
"All Contract Documents shall form part of the Contract even if they or any one of them is not referred to or mentioned in the
Contract as forming a part thereof. Each of the Contract Documents shall be mutually complementary and explanatory of each
other such that what is noted in one although not shown in the other shall be considered contained in all, and what is required
by any one shall be as binding as if required by all, unless one item is a correction of the other.
"The intent of the Contract Documents is the proper, satisfactory and timely execution and completion of the Project, in
accordance with the Contract Documents. Consequently, all items necessary for the proper and timely execution and
completion of the Project shall be deemed included in the Contract."
Thus, it is argued that whatever perceived deficiencies there were in the supplementary contracts -- those entered into by MPEI and the
other members of the "consortium" as regards their joint and several undertakings -- have been cured. Better still, such deficiencies

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have supposedly been prevented from arising as a result of the above-quoted provisions, from which it can be immediately established
that each of the members of MPC assumes the same joint and several liability as the other members.
The foregoing argument is unpersuasive. First, the contract being referred to, entitled "The Automated Counting and Canvassing
Project Contract," is between Comelec and MPEI, not the alleged consortium, MPC. To repeat, it is MPEI -- not MPC -- that is a party to
the Contract. Nowhere in that Contract is there any mention of a consortium or joint venture, of members thereof, much less of joint and
43
several liability. Supposedly executed sometime in May 2003, the Contract bears a notarization date of June 30, 2003, and contains
the signature of Willy U. Yu signing as president of MPEI (not for and on behalf of MPC), along with that of the Comelec chair. It
provides in Section 3.2 that MPEI (not MPC) is to supply the Equipment and perform the Services under the Contract, in accordance
with the appendices thereof; nothing whatsoever is said about any consortium or joint venture or partnership.
Second, the portions of Section 1.4 of the Contract reproduced above do not have the effect of curing (much less preventing)
deficiencies in the bilateral agreements entered into by MPEI with the other members of the "consortium," with respect to their joint and
several liabilities. The term "Contract Documents," as used in the quoted passages of Section 1.4, has a well-defined meaning and
actually refers only to the following documents:
The Contract itself along with its appendices
The Request for Proposal (also known as "Terms of Reference") issued by the Comelec, including the Tender Inquiries and
Bid Bulletins
The Tender Proposal submitted by MPEI
In other words, the term "Contract Documents" cannot be understood as referring to or including the MOAs and the Teaming
Agreements entered into by MPEI with SK C&C, WeSolv, Election.com and ePLDT. This much is very clear and admits of no debate.
The attempt to use the provisions of Section 1.4 to shore up the MOAs and the Teaming Agreements is simply unwarranted.
Third and last, we fail to see how respondents can arrive at the conclusion that, from the above-quoted provisions, it can be
immediately established that each of the members of MPC assumes the same joint and several liability as the other members. Earlier,
respondents claimed exactly the opposite -- that the two MOAs (between MPEI and SK C&C, and between MPEI and WeSolv) had set
forth the joint and several undertakings among the parties; whereas the two Teaming Agreements clarified the parties respective roles
with regard to the Project, with MPEI being the independent contractor and Election.com and ePLDT the subcontractors.
Obviously, given the differences in their relationships, their respective liabilities cannot be the same. Precisely, the very clear terms and
stipulations contained in the MOAs and the Teaming Agreements -- entered into by MPEI with SK C&C, WeSolv, Election.com and
ePLDT -- negate the idea that these "members" are on a par with one another and are, as such, assuming the same joint and several
liability.
Moreover, respondents have earlier seized upon the use of the term "particular contract" in the Comelecs Request for Proposal (RFP),
in order to argue that all the members of the joint venture did not need to be solidarily liable for the entire project or joint venture. It was
sufficient that the lead company and the member in charge of a particular contract or aspect of the joint venture would agree to be
solidarily liable. The glaring lack of consistency leaves us at a loss. Are respondents trying to establish the same joint and solidary
liability among all the "members" or not?
Enforcement of Liabilities Problematic
Next, it is also maintained that the automation Contract between Comelec and the MPEI confirms the solidary undertaking of the lead
company and the consortium member concerned for each particular Contract, inasmuch as the position of MPEI and anyone else
performing the services contemplated under the Contract is described therein as that of an independent contractor.
The Court does not see, however, how this conclusion was arrived at. In the first place, the contractual provision being relied upon by
respondents is Article 14, "Independent Contractors," which states: "Nothing contained herein shall be construed as establishing or
creating between the COMELEC and MEGA the relationship of employee and employer or principal and agent, it being understood that
the position of MEGA and of anyone performing the Services contemplated under this Contract, is that of an independent contractor."
Obviously, the intent behind the provision was simply to avoid the creation of an employer-employee or a principal-agent relationship
and the complications that it would produce. Hence, the Article states that the role or position of MPEI, or anyone else performing on its
behalf, is that of an independent contractor. It is obvious to the Court that respondents are stretching matters too far when they claim
that, because of this provision, the Contract in effect confirms the solidary undertaking of the lead company and the consortium member
concerned for the particular phase of the project. This assertion is an absolute non sequitur.
Enforcement of Liabilities Under the Civil Code Not Possible

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In any event, it is claimed that Comelec may still enforce the liability of the "consortium" members under the Civil Code provisions on
partnership, reasoning that MPEI et al. represented themselves as partners and members of MPC for purposes of bidding for the
Project. They are, therefore, liable to the Comelec to the extent that the latter relied upon such representation. Their liability as partners
is solidary with respect to everything chargeable to the partnership under certain conditions.
The Court has two points to make with respect to this argument. First, it must be recalled that SK C&C, WeSolv, Election.com and
ePLDT never represented themselves as partners and members of MPC, whether for purposes of bidding or for something else. It was
MPEI alone that represented them to be members of a "consortium" it supposedly headed. Thus, its acts may not necessarily be held
against the other "members."
44

Second, this argument of the OSG in its Memorandum might possibly apply in the absence of a joint venture agreement or some
other writing that discloses the relationship of the "members" with one another. But precisely, this case does not deal with a situation in
which there is nothing in writing to serve as reference, leaving Comelec to rely on mere representations and therefore justifying a falling
back on the rules on partnership. For, again, the terms and stipulations of the MOAs entered into by MPEI with SK C&C and WeSolv,
as well as the Teaming Agreements of MPEI with Election.com and ePLDT (copies of which have been furnished the Comelec) are
very clear with respect to the extent and the limitations of the firms respective liabilities.
In the case of WeSolv and SK C&C, their MOAs state that their liabilities, while joint and several with MPEI, are limited only to the
particular areas of work wherein their services are engaged or their products utilized. As for Election.com and ePLDT, their separate
"Teaming Agreements" specifically ascribe to them the role of subcontractor vis--vis MPEI as contractor and, based on the terms of
45
their particular agreements, neither Election.com nor ePLDT is, with MPEI, jointly and severally liable to Comelec. It follows then that
in the instant case, there is no justification for anyone, much less Comelec, to resort to the rules on partnership and partners liabilities.
Eligibility of a Consortium Based on the Collective Qualifications of Its Members
Respondents declare that, for purposes of assessing the eligibility of the bidder, the members of MPC should be evaluated on a
collective basis. Therefore, they contend, the failure of MPEI to submit financial statements (on account of its recent incorporation)
should not by itself disqualify MPC, since the other members of the "consortium" could meet the criteria set out in the RFP.
Thus, according to respondents, the collective nature of the undertaking of the members of MPC, their contribution of assets and
sharing of risks, and the community of their interest in the performance of the Contract lead to these reasonable conclusions: (1) that
their collective qualifications should be the basis for evaluating their eligibility; (2) that the sheer enormity of the project renders it
improbable to expect any single entity to be able to comply with all the eligibility requirements and undertake the project by itself; and
(3) that, as argued by the OSG, the RFP allows bids from manufacturers, suppliers and/or distributors that have formed themselves into
a joint venture, in recognition of the virtual impossibility of a single entitys ability to respond to the Invitation to Bid.
Additionally, argues the Comelec, the Implementing Rules and Regulations of RA 6957 (the Build-Operate-Transfer Law) as amended
by RA 7718 would be applicable, as proponents of BOT projects usually form joint ventures or consortiums. Under the IRR, a joint
venture/consortium proponent shall be evaluated based on the individual or the collective experience of the member-firms of the joint
venture/consortium and of the contractors the proponent has engaged for the project.
Unfortunately, this argument seems to assume that the "collective" nature of the undertaking of the members of MPC, their contribution
of assets and sharing of risks, and the "community" of their interest in the performance of the Contract entitle MPC to be treated as a
joint venture or consortium; and to be evaluated accordingly on the basis of the members collective qualifications when, in fact, the
evidence before the Court suggest otherwise.
46

This Court in Kilosbayan v. Guingona defined joint venture as "an association of persons or companies jointly undertaking some
commercial enterprise; generally, all contribute assets and share risks. It requires a community of interest in the performance of the
subject matter, a right to direct and govern the policy in connection therewith, and [a] duty, which may be altered by agreement to share
both in profit and losses."
Going back to the instant case, it should be recalled that the automation Contract with Comelec was not executed by the "consortium"
MPC -- or by MPEI for and on behalf of MPC -- but by MPEI, period. The said Contract contains no mention whatsoever of any
consortium or members thereof. This fact alone seems to contradict all the suppositions about a joint undertaking that would normally
apply to a joint venture or consortium: that it is a commercial enterprise involving a community of interest, a sharing of risks, profits and
losses, and so on.
Now let us consider the four bilateral Agreements, starting with the Memorandum of Agreement between MPEI and WeSolv Open
Computing, Inc., dated March 5, 2003. The body of the MOA consists of just seven (7) short paragraphs that would easily fit in one
page! It reads as follows:

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"1. The parties agree to cooperate in successfully implementing the Project in the substance and form as may be most
beneficial to both parties and other subcontractors involved in the Project.
"2. Mega Pacific shall be responsible for any contract negotiations and signing with the COMELEC and, subject to the latters
approval, agrees to give WeSolv an opportunity to be present at meetings with the COMELEC concerning WeSolvs portion of
the Project.
"3. WeSolv shall be jointly and severally liable with Mega Pacific only for the particular products and/or services supplied by
the former for the Project.
"4. Each party shall bear its own costs and expenses relative to this agreement unless otherwise agreed upon by the parties.
"5. The parties undertake to do all acts and such other things incidental to, necessary or desirable or the attainment of the
objectives and purposes of this Agreement.
"6. In the event that the parties fail to agree on the terms and conditions of the supply of the products and services including
but not limited to the scope of the products and services to be supplied and payment terms, WeSolv shall cease to be bound
by its obligations stated in the aforementioned paragraphs.
"7. Any dispute arising from this Agreement shall be settled amicably by the parties whenever possible. Should the parties be
unable to do so, the parties hereby agree to settle their dispute through arbitration in accordance with the existing laws of the
Republic of the Philippines." (Underscoring supplied.)
Even shorter is the Memorandum of Agreement between MPEI and SK C&C Co. Ltd., dated March 9, 2003, the body of which consists
of only six (6) paragraphs, which we quote:
"1. All parties agree to cooperate in achieving the Consortiums objective of successfully implementing the Project in the
substance and form as may be most beneficial to the Consortium members and in accordance w/ the demand of the RFP.
"2. Mega Pacific shall have full powers and authority to represent the Consortium with the Comelec, and to enter and sign, for
and in behalf of its members any and all agreement/s which maybe required in the implementation of the Project.
"3. Each of the individual members of the Consortium shall be jointly and severally liable with the Lead Firm for the particular
products and/or services supplied by such individual member for the project, in accordance with their respective undertaking or
sphere of responsibility.
"4. Each party shall bear its own costs and expenses relative to this agreement unless otherwise agreed upon by the parties.
"5. The parties undertake to do all acts and such other things incidental to, necessary or desirable for the attainment of the
objectives and purposes of this Agreement.
"6. Any dispute arising from this Agreement shall be settled amicably by the parties whenever possible. Should the parties be
unable to do so, the parties hereby agree to settle their dispute through arbitration in accordance with the existing laws of the
Republic of the Philippines." (Underscoring supplied.)
It will be noted that the two Agreements quoted above are very similar in wording. Neither of them contains any specifics or details as to
the exact nature and scope of the parties respective undertakings, performances and deliverables under the Agreement with respect to
the automation project. Likewise, the two Agreements are quite bereft of pesos-and-centavos data as to the amount of investments
each party contributes, its respective share in the revenues and/or profit from the Contract with Comelec, and so forth -- all of which are
normal for agreements of this nature. Yet, according to public and private respondents, the participation of MPEI, WeSolv and SK C&C
comprises fully 90 percent of the entire undertaking with respect to the election automation project, which is worth about P1.3 billion.
As for Election.com and ePLDT, the separate "Teaming Agreements" they entered into with MPEI for the remaining 10 percent of the
entire project undertaking are ironically much longer and more detailed than the MOAs discussed earlier. Although specifically ascribing
to them the role of subcontractor vis--vis MPEI as contractor, these Agreements are, however, completely devoid of any pricing data
or payment terms. Even the appended Schedules supposedly containing prices of goods and services are shorn of any price data.
Again, as mentioned earlier, based on the terms of their particular Agreements, neither Election.com nor ePLDT -- with MPEI -- is jointly
and severally liable to Comelec.
It is difficult to imagine how these bare Agreements -- especially the first two -- could be implemented in practice; and how a dispute
between the parties or a claim by Comelec against them, for instance, could be resolved without lengthy and debilitating litigations.

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Absent any clear-cut statement as to the exact nature and scope of the parties respective undertakings, commitments, deliverables
and covenants, one party or another can easily dodge its obligation and deny or contest its liability under the Agreement; or claim that it
is the other party that should have delivered but failed to.
Likewise, in the absence of definite indicators as to the amount of investments to be contributed by each party, disbursements for
expenses, the parties respective shares in the profits and the like, it seems to the Court that this situation could readily give rise to all
kinds of misunderstandings and disagreements over money matters.
Under such a scenario, it will be extremely difficult for Comelec to enforce the supposed joint and several liabilities of the members of
the "consortium." The Court is not even mentioning the possibility of a situation arising from a failure of WeSolv and MPEI to agree on
the scope, the terms and the conditions for the supply of the products and services under the Agreement. In that situation, by virtue of
paragraph 6 of its MOA, WeSolv would perforce cease to be bound by its obligations -- including its joint and solidary liability with MPEI
under the MOA -- and could forthwith disengage from the project. Effectively, WeSolv could at any time unilaterally exit from its MOA
with MPEI by simply failing to agree. Where would that outcome leave MPEI and Comelec?
To the Court, this strange and beguiling arrangement of MPEI with the other companies does not qualify them to be treated as a
consortium or joint venture, at least of the type that government agencies like the Comelec should be dealing with. With more reason is
it unable to agree to the proposal to evaluate the members of MPC on a collective basis.
In any event, the MPC members claim to be a joint venture/consortium; and respondents have consistently been arguing that the IRR
for RA 6957, as amended, should be applied to the instant case in order to allow a collective evaluation of consortium members.
Surprisingly, considering these facts, respondents have not deemed it necessary for MPC members to comply with Section 5.4 (a) (iii)
of the IRR for RA 6957 as amended.
According to the aforementioned provision, if the project proponent is a joint venture or consortium, the members or participants thereof
are required to submit a sworn statement that, if awarded the contract, they shall bind themselves to be jointly, severally and solidarily
liable for the project proponents obligations thereunder. This provision was supposed to mirror Section 5 of RA 6957, as amended,
which states: "In all cases, a consortium that participates in a bid must present proof that the members of the consortium have bound
themselves jointly and severally to assume responsibility for any project. The withdrawal of any member of the consortium prior to the
implementation of the project could be a ground for the cancellation of the contract." The Court has certainly not seen any joint and
several undertaking by the MPC members that even approximates the tenor of that which is described above. We fail to see why
respondents should invoke the IRR if it is for their benefit, but refuse to comply with it otherwise.
B.
DOST Technical Tests Flunked by the Automated Counting Machines
Let us now move to the second subtopic, which deals with the substantive issue: the ACMs failure to pass the tests of the Department
of Science and Technology (DOST).
After respondent "consortium" and the other bidder, TIM, had submitted their respective bids on March 10, 2003, the Comelecs BAC -through its Technical Working Group (TWG) and the DOST -- evaluated their technical proposals. Requirements that were highly
technical in nature and that required the use of certain equipment in the evaluation process were referred to the DOST for testing. The
Department reported thus:

TEST RESULTS MATRIX

47

Technical Evaluation of Automated Counting Machine

MEGA-PACIFIC
CONSORTIUM

KEY REQUIREMENTS
QUESTIONS

YES
1. Does the machine have an accuracy rating of at
least 99.995 percent
At COLD environmental condition

NO

TOTAL INFORMATION
MANAGEMENT
YES

NO

100

At NORMAL environmental conditions

At HARSH environmental conditions

2. Accurately records and reports the date and time of
the start and end of counting of ballots per precinct?

3. Prints election returns without any loss of date

during generation of such reports?

4. Uninterruptible back-up power system, that will

engage immediately to allow operation of at least 10
minutes after outage, power surge or abnormal
electrical occurrences?
5. Machine reads two-sided ballots in one pass?

Note: This
particular
requirement
needs further
verification

6. Machine can detect previously counted ballots and

prevent previously counted ballots from being counted
more than once?

7. Stores results of counted votes by precinct in

external (removable) storage device?

Note: This
particular
requirement
needs further
verification

8. Data stored in external media is encrypted?

Note: This
particular
requirement
needs further
verification

9. Physical key or similar device allows, limits, or

restricts operation of the machine?

10. CPU speed is at least 400mHz?

Note: This
particular
requirement
needs further
verification

11. Port to allow use of dot-matrix printers?

12. Generates printouts of the election returns in a

format specified by the COMELEC?
Generates printouts

In format specified by COMELEC

13. Prints election returns without any loss of data
during generation of such report?

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14. Generates an audit trail of the counting machine,

both hard copy and soft copy?
Hard copy

Soft copy

Note: This
particular
requirement
needs further
verification

15. Does the City/Municipal Canvassing System

consolidate results from all precincts within it using the
encrypted soft copy of the data generated by the
counting machine and stored on the removable data
storage device?

Note: This
particular
requirement
needs further
verification

16. Does the City/Municipal Canvassing System

consolidate results from all precincts within it using the
encrypted soft copy of the data generated by the
counting machine and transmitted through an
electronic transmission media?

17. Does the system output a Zero City/Municipal

Canvass Report, which is printed on election day prior
to the conduct of the actual canvass operation, that
shows that all totals for all the votes for all the
candidates and other information, are indeed zero or
null?

18. Does the system consolidate results from all

precincts in the city/municipality using the data storage
device coming from the counting machine?

19. Is the machine 100% accurate?

Note: This
particular
requirement
needs further
verification

Note: This
particular
requirement
needs further
verification

Note: This
particular
requirement
needs further
verification

Note: This
particular
requirement
needs further
verification

Note: This
particular
requirement
needs further
verification

20. Is the Program able to detect previously

downloaded precinct results and prevent these from
being inputted again into the System?

Note: This
particular
requirement
needs further
verification

21. The System is able to print the specified reports

and the audit trail without any loss of data during
generation of the above-mentioned reports?

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Prints specified reports

Audit Trail
22. Can the result of the city/municipal consolidation
be stored in a data storage device?

Note: This
particular
requirement
needs further
verification

23. Does the system consolidate results from all

precincts in the provincial/district/ national using the
data storage device from different levels of
consolidation?

24. Is the system 100% accurate?

Note: This
particular
requirement
needs further
verification

Note: This
particular
requirement
needs further
verification

25. Is the Program able to detect previously

downloaded precinct results and prevent these from
being inputted again into the System?

Note: This
particular
requirement
needs further
verification

26. The System is able to print the specified reports

and the audit trail without any loss of data during
generation of the abovementioned reports?
Prints specified reports

Audit Trail

Note: This
particular
requirement
needs further
verification

27. Can the results of the provincial/district/national

consolidation be stored in a data storage device?

Note: This
particular
requirement
needs further
verification

According to respondents, it was only after the TWG and the DOST had conducted their separate tests and submitted their respective
reports that the BAC, on the basis of these reports formulated its comments/recommendations on the bids of the consortium and TIM.
The BAC, in its Report dated April 21, 2003, recommended that the Phase II project involving the acquisition of automated counting
machines be awarded to MPEI. It said:

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"After incisive analysis of the technical reports of the DOST and the Technical Working Group for Phase II Automated
Counting Machine, the BAC considers adaptability to advances in modern technology to ensure an effective and efficient
method, as well as the security and integrity of the system.
"The results of the evaluation conducted by the TWG and that of the DOST (14 April 2003 report), would show the apparent
advantage of Mega-Pacific over the other competitor, TIM.
"The BAC further noted that both Mega-Pacific and TIM obtained some failed marks in the technical evaluation. In general,
the failed marks of Total Information Management as enumerated above affect the counting machine itself which are material
in nature, constituting non-compliance to the RFP. On the other hand, the failed marks of Mega-Pacific are mere formalities
on certain documentary requirements which the BAC may waive as clearly indicated in the Invitation to Bid.
"In the DOST test, TIM obtained 12 failed marks and mostly attributed to the counting machine itself as stated earlier. These
are requirements of the RFP and therefore the BAC cannot disregard the same.
"Mega-Pacific failed in 8 items however these are mostly on the software which can be corrected by reprogramming the
software and therefore can be readily corrected.
"The BAC verbally inquired from DOST on the status of the retest of the counting machines of the TIM and was informed that
the report will be forthcoming after the holy week. The BAC was informed that the retest is on a different parameters theyre
being two different machines being tested. One purposely to test if previously read ballots will be read again and the other for
the other features such as two sided ballots.
"The said machine and the software therefore may not be considered the same machine and program as submitted in the
Technical proposal and therefore may be considered an enhancement of the original proposal.
"Advance information relayed to the BAC as of 1:40 PM of 15 April 2003 by Executive Director Ronaldo T. Viloria of DOST is
that the result of the test in the two counting machines of TIM contains substantial errors that may lead to the failure of these
machines based on the specific items of the RFP that DOST has to certify.
OPENING OF FINANCIAL BIDS
"The BAC on 15 April 2003, after notifying the concerned bidders opened the financial bids in their presence and the results
were as follows:
Mega-Pacific:
Option 1 Outright purchase: Bid Price if Php1,248,949,088.00
Option 2 Lease option:
70% Down payment of cost of hardware or Php642,755,757.07
Remainder payable over 50 months or a total of Php642,755,757.07
Discount rate of 15% p.a. or 1.2532% per month.
Total Number of Automated Counting Machine 1,769 ACMs (Nationwide)
TIM:
Total Bid Price Php1,297,860,560.00
Total Number of Automated Counting Machine 2,272 ACMs (Mindanao and NCR only)
"Premises considered, it appears that the bid of Mega Pacific is the lowest calculated responsive bid, and therefore, the Bids
and Awards Committee (BAC) recommends that the Phase II project re Automated Counting Machine be awarded to Mega
48
Pacific eSolutions, Inc."

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The BAC, however, also stated on page 4 of its Report: "Based on the 14 April 2003 report (Table 6) of the DOST, it appears that both
Mega-Pacific and TIM (Total Information Management Corporation) failed to meet some of the requirements. Below is a comparative
presentation of the requirements wherein Mega-Pacific or TIM or both of them failed: x x x." What followed was a list of "key
requirements," referring to technical requirements, and an indication of which of the two bidders had failed to meet them.
Failure to Meet the Required Accuracy Rating
The first of the key requirements was that the counting machines were to have an accuracy rating of at least 99.9995 percent. The
BAC Report indicates that both Mega Pacific and TIM failed to meet this standard.
The key requirement of accuracy rating happens to be part and parcel of the Comelecs Request for Proposal (RFP). The RFP, on page
26, even states that the ballot counting machines and ballot counting software "must have an accuracy rating of 99.9995% (not merely
99.995%) or better as certified by a reliable independent testing agency."
When questioned on this matter during the Oral Argument, Commissioner Borra tried to wash his hands by claiming that the required
accuracy rating of 99.9995 percent had been set by a private sector group in tandem with Comelec. He added that the Commission had
merely adopted the accuracy rating as part of the groups recommended bid requirements, which it had not bothered to amend even
after being advised by DOST that such standard was unachievable. This excuse, however, does not in any way lessen Comelecs
responsibility to adhere to its own published bidding rules, as well as to see to it that the consortium indeed meets the accuracy
standard.Whichever accuracy rating is the right standard -- whether 99.995 or 99.9995 percent -- the fact remains that the machines of
the so-called "consortium" failed to even reach the lesser of the two. On this basis alone, it ought to have been disqualified and its bid
rejected outright.
At this point, the Court stresses that the essence of public bidding is violated by the practice of requiring very high standards or
unrealistic specifications that cannot be met -- like the 99.9995 percent accuracy rating in this case -- only to water them down after the
bid has been award. Such scheme, which discourages the entry of prospective bona fide bidders, is in fact a sure indication of fraud in
the bidding, designed to eliminate fair competition. Certainly, if no bidder meets the mandatory requirements, standards or
specifications, then no award should be made and a failed bidding declared.
Failure of Software to Detect Previously Downloaded Data
Furthermore, on page 6 of the BAC Report, it appears that the "consortium" as well as TIM failed to meet another key requirement -- for
the counting machines software program to be able to detect previously downloaded precinct results and to prevent these from
being entered again into the counting machine. This same deficiency on the part of both bidders reappears on page 7 of the BAC
Report, as a result of the recurrence of their failure to meet the said key requirement.
That the ability to detect previously downloaded data at different canvassing or consolidation levels is deemed of utmost importance
can be seen from the fact that it is repeated three times in the RFP. On page 30 thereof, we find the requirement that
the city/municipal canvassing system software must be able to detect previously downloaded precinct results and prevent these from
being "inputted" again into the system. Again, on page 32 of the RFP, we read that the provincial/district canvassing system software
must be able to detect previously downloaded city/municipal results and prevent these from being "inputted" again into the system. And
once more, on page 35 of the RFP, we find the requirement that the national canvassing system software must be able to detect
previously downloaded provincial/district results and prevent these from being "inputted" again into the system.
Once again, though, Comelec chose to ignore this crucial deficiency, which should have been a cause for the gravest concern. Come
May 2004, unscrupulous persons may take advantage of and exploit such deficiency by repeatedly downloading and feeding into the
computers results favorable to a particular candidate or candidates.We are thus confronted with the grim prospect of election
fraud on a massive scale by means of just a few key strokes. The marvels and woes of the electronic age!
Inability to Print the Audit Trail
But that grim prospect is not all. The BAC Report, on pages 6 and 7, indicate that the ACMs of both bidders wereunable to print the
audit trail without any loss of data. In the case of MPC, the audit trail system was "not yet incorporated" into its ACMs.
This particular deficiency is significant, not only to this bidding but to the cause of free and credible elections. The purpose of requiring
audit trails is to enable Comelec to trace and verify the identities of the ACM operators responsible for data entry and downloading, as
well as the times when the various data were downloaded into the canvassing system, in order to forestall fraud and to identify the
perpetrators.
Thus, the RFP on page 27 states that the ballot counting machines and ballot counting software must print an audit trail of all machine
operations for documentation and verification purposes. Furthermore, the audit trail must be stored on the internal storage device and
be available on demand for future printing and verifying. On pages 30-31, the RFP also requires that the city/municipal canvassing

105

system software be able to print an audit trail of the canvassing operations, including therein such data as the date and time the
canvassing program was started, the log-in of the authorized users (the identity of the machine operators), the date and time the
canvass data were downloaded into the canvassing system, and so on and so forth. On page 33 of the RFP, we find the same audit
trail requirement with respect to the provincial/district canvassing system software; and again on pages 35-36 thereof, the same audit
trail requirement with respect to the national canvassing system software.
That this requirement for printing audit trails is not to be lightly brushed aside by the BAC or Comelec itself as a mere formality or
technicality can be readily gleaned from the provisions of Section 7 of RA 8436, which authorizes the Commission to use an automated
system for elections.
The said provision which respondents have quoted several times, provides that ACMs are to possess certain features divided into two
classes: those that the statute itself considers mandatory and other features or capabilities that the law deems optional. Among those
considered mandatory are "provisions for audit trails"! Section 7 reads as follows: "The System shall contain the following features: (a)
use of appropriate ballots; (b) stand-alone machine which can count votes and an automated system which can consolidate the results
immediately; (c) with provisions for audit trails; (d) minimum human intervention; and (e) adequate safeguard/security measures."
(Italics and emphases supplied.)
In brief, respondents cannot deny that the provision requiring audit trails is indeed mandatory, considering the wording of Section 7 of
RA 8436. Neither can Respondent Comelec deny that it has relied on the BAC Report, which indicates that the machines or the
software was deficient in that respect. And yet, the Commission simply disregarded this shortcoming and awarded the Contract to
private respondent, thereby violating the very law it was supposed to implement.
C.
Inadequacy of Post Facto Remedial Measures
Respondents argue that the deficiencies relating to the detection of previously downloaded data, as well as provisions for audit trails,
are mere shortcomings or minor deficiencies in software or programming, which can be rectified. Perhaps Comelec simply relied upon
the BAC Report, which states on page 8 thereof that "Mega Pacific failed in 8 items[;] however these are mostly on the software which
can be corrected by re-programming x x x and therefore can be readily corrected."
The undersigned ponentes questions, some of which were addressed to Commissioner Borra during the Oral Argument, remain
unanswered to this day. First of all, who made the determination that the eight "fail" marks of Mega Pacific were on account of the
software -- was it DOST or TWG? How can we be sure these failures were not the results of machine defects? How was it determined
that the software could actually be re-programmed and thereby rectified? Did a qualified technical expert read and analyze the source
49
code for the programs and conclude that these could be saved and remedied? (Such determination cannot be done by any other
means save by the examination and analysis of the source code.)
Who was this qualified technical expert? When did he carry out the study? Did he prepare a written report on his findings? Or did the
Comelec just make a wild guess? It does not follow that all defects in software programs can be rectified, and the programs saved. In
the information technology sector, it is common knowledge that there are many badly written programs, with significant programming
errors written into them; hence it does not make economic sense to try to correct the programs; instead, programmers simply abandon
them and just start from scratch. Theres no telling if any of these programs is unrectifiable, unless a qualified programmer reads the
source code.
And if indeed a qualified expert reviewed the source code, did he also determine how much work would be needed to rectify the
programs? And how much time and money would be spent for that effort? Who would carry out the work? After the rectification
process, who would ascertain and how would it be ascertained that the programs have indeed been properly rectified, and that they
would work properly thereafter? And of course, the most important question to ask: could the rectification be done in time for the
elections in 2004?
Clearly, none of the respondents bothered to think the matter through. Comelec simply took the word of the BAC as gospel truth,
without even bothering to inquire from DOST whether it was true that the deficiencies noted could possibly be remedied by reprogramming the software. Apparently, Comelec did not care about the software, but focused only on purchasing the machines.
What really adds to the Courts dismay is the admission made by Commissioner Borra during the Oral Argument that the software
currently being used by Comelec was merely the "demo" version, inasmuch as the final version that would actually be used in the
elections was still being developed and had not yet been finalized.
It is not clear when the final version of the software would be ready for testing and deployment. It seems to the Court that Comelec is
just keeping its fingers crossed and hoping the final product would work. Is there a "Plan B" in case it does not? Who knows? But all
these software programs are part and parcel of the bidding and the Contract awarded to the Consortium. Why is it that the machines

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are already being brought in and paid for, when there is as yet no way of knowing if the final version of the software would be able to
run them properly, as well as canvass and consolidate the results in the manner required?
The counting machines, as well as the canvassing system, will never work properly without the correct software programs. There is an
old adage that is still valid to this day: "Garbage in, garbage out." No matter how powerful, advanced and sophisticated the computers
and the servers are, if the software being utilized is defective or has been compromised, the results will be no better than garbage. And
to think that what is at stake here is the 2004 national elections -- the very basis of our democratic life.
Correction of Defects?
To their Memorandum, public respondents proudly appended 19 Certifications issued by DOST declaring that some 285 counting
machines had been tested and had passed the acceptance testing conducted by the Department on October 8-18, 2003. Among those
tested were some machines that had failed previous tests, but had undergone adjustments and thus passed re-testing.
Unfortunately, the Certifications from DOST fail to divulge in what manner and by what standards or criteria the condition, performance
and/or readiness of the machines were re-evaluated and re-appraised and thereafter given the passing mark. Apart from that fact, the
remedial efforts of respondents were, not surprisingly, apparently focused again on the machines -- the hardware. Nothing was said or
done about the software -- the deficiencies as to detection and prevention of downloading and entering previously downloaded data, as
well as the capability to print an audit trail. No matter how many times the machines were tested and re-tested, if nothing was done
about the programming defects and deficiencies, the same danger of massive electoral fraud remains.As anyone who has a modicum
of knowledge of computers would say, "Thats elementary!"
And only last December 5, 2003, an Inq7.net news report quoted the Comelec chair as saying that the new automated poll system
would be used nationwide in May 2004, even as the software for the system remained unfinished. It also reported that a certain Titus
Manuel of the Philippine Computer Society, which was helping Comelec test the hardware and software, said that the software for the
counting still had to be submitted on December 15, while the software for the canvassing was due in early January.
Even as Comelec continues making payments for the ACMs, we keep asking ourselves: who is going to ensure that the software would
be tested and would work properly?
At any rate, the re-testing of the machines and/or the 100 percent testing of all machines (testing of every single unit) would not serve to
eradicate the grave abuse of discretion already committed by Comelec when it awarded the Contract on April 15, 2003, despite the
obvious and admitted flaws in the bidding process, the failure of the "winning bidder" to qualify, and the inability of the ACMs and the
intended software to meet the bid requirements and rules.
Comelecs Latest "Assurances" Are Unpersuasive
Even the latest pleadings filed by Comelec do not serve to allay our apprehensions. They merely affirm and compound the serious
violations of law and gravely abusive acts it has committed. Let us examine them.
The Resolution issued by this Court on December 9, 2003 required respondents to inform it as to the number of ACMs delivered and
paid for, as well as the total payment made to date for the purchase thereof. They were likewise instructed to submit a certification from
the DOST attesting to the number of ACMs tested, the number found to be defective; and "whether the reprogrammed software has
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been tested and found to have complied with the requirements under Republic Act No. 8436."
In its "Partial Compliance and Manifestation" dated December 29, 2003, Comelec informed the Court that 1,991 ACMs had already
been delivered to the Commission as of that date. It further certified that it had already paid the supplier the sum of P849,167,697.41,
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which corresponded to 1,973 ACM units that had passed the acceptance testing procedures conducted by the MIRDC-DOST and
which had therefore been accepted by the poll body.
In the same submission, for the very first time, Comelec also disclosed to the Court the following:
"The Automated Counting and Canvassing Project involves not only the manufacturing of the ACM hardware but also the
development of three (3) types of software, which are intended for use in the following:
1. Evaluation of Technical Bids
2. Testing and Acceptance Procedures
3. Election Day Use."

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Purchase of the First Type of Software Without Evaluation

In other words, the first type of software was to be developed solely for the purpose of enabling the evaluation of the bidders technical
bid. Comelec explained thus: "In addition to the presentation of the ACM hardware, the bidders were required to develop a base
software program that will enable the ACM to function properly. Since the software program utilized during the evaluation of bids is not
the actual software program to be employed on election day, there being two (2) other types of software program that will still have to
be developed and thoroughly tested prior to actual election day use, defects in the base software that can be readily corrected by
reprogramming are considered minor in nature, and may therefore be waived."
In short, Comelec claims that it evaluated the bids and made the decision to award the Contract to the "winning" bidder partly on the
basis of the operation of the ACMs running a "base" software. That software was therefore nothing but a sample or "demo" software,
which would not be the actual one that would be used on election day. Keeping in mind that the Contract involves the acquisition of not
just the ACMs or the hardware, but also the software that would run them, it is now even clearer that the Contract was awarded without
Comelec having seen, much less evaluated, the final product -- the software that would finally be utilized come election day. (Not even
the "near-final" product, for that matter).
What then was the point of conducting the bidding, when the software that was the subject of the Contract wasstill to be created and
could conceivably undergo innumerable changes before being considered as being in final form? And that is not all!
No Explanation for Lapses in the Second Type of Software
The second phase, allegedly involving the second type of software, is simply denominated "Testing and Acceptance Procedures." As
best as we can construe, Comelec is claiming that this second type of software is also to be developed and delivered by the supplier in
connection with the "testing and acceptance" phase of the acquisition process. The previous pleadings, though -- including the DOST
reports submitted to this Court -- have not heretofore mentioned any statement, allegation or representation to the effect that a
particular set of software was to be developed and/or delivered by the supplier in connection with the testing and acceptance of
delivered ACMs.
What the records do show is that the imported ACMs were subjected to the testing and acceptance process conducted by the DOST.
Since the initial batch delivered included a high percentage of machines that had failed the tests, Comelec asked the DOST to conduct
a 100 percent testing; that is, to test every single one of the ACMs delivered. Among the machines tested on October 8 to 18, 2003,
were some units that had failed previous tests but had subsequently been re-tested and had passed. To repeat, however, until now,
there has never been any mention of a second set or type of software pertaining to the testing and acceptance process.
In any event, apart from making that misplaced and uncorroborated claim, Comelec in the same submission also professes (in
response to the concerns expressed by this Court) that the reprogrammed software has been tested and found to have complied
with the requirements of RA 8436. It reasoned thus: "Since the software program is an inherent element in the automated counting
system, the certification issued by the MIRDC-DOST that one thousand nine hundred seventy-three (1,973) units passed the
acceptance test procedures is an official recognition by the MIRDC-DOST that the software component of the automated election
system, which has been reprogrammed to comply with the provisions of Republic Act No. 8436 as prescribed in the Ad Hoc Technical
Evaluation Committees ACM Testing and Acceptance Manual, has passed the MIRDC-DOST tests."
The facts do not support this sweeping statement of Comelec. A scrutiny of the MIRDC-DOST letter dated December 15, 2003,
it relied upon, does not justify its grand conclusion. For claritys sake, we quote in full the letter-certification, as follows:

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which

"15 December 2003

"HON. RESURRECCION Z. BORRA
Commissioner-in-Charge
Phase II, Modernization Project
Commission on Elections
Intramuros, Manila
Attention: Atty. Jose M. Tolentino, Jr.
Project Director

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"Dear Commissioner Borra:

"We are pleased to submit 11 DOST Test Certifications representing 11 lots and covering 158 units of automated counting
machines (ACMs) that we have tested from 02-12 December 2003.
"To date, we have tested all the 1,991 units of ACMs, broken down as follow: (sic)
1st batch - 30 units 4th batch - 438 units
2nd batch - 288 units 5th batch - 438 units
3rd batch - 414 units 6th batch - 383 units
"It should be noted that a total of 18 units have failed the test. Out of these 18 units, only one (1) unit has failed the retest.
"Thank you and we hope you will find everything in order.
"Very truly yours,
"ROLANDO T. VILORIA, CESO III
Executive Director cum
Chairman, DOST-Technical Evaluation Committee"
Even a cursory glance at the foregoing letter shows that it is completely bereft of anything that would remotely support Comelecs
contention that the "software component of the automated election system x x x has been reprogrammed to comply with" RA 8436, and
"has passed the MIRDC-DOST tests." There is no mention at all of any software reprogramming. If the MIRDC-DOST had indeed
undertaken the supposed reprogramming and the process turned out to be successful, that agency would have proudly trumpeted its
singular achievement.
How Comelec came to believe that such reprogramming had been undertaken is unclear. In any event, the Commission is not forthright
and candid with the factual details. If reprogramming has been done, who performed it and when? What exactly did the process
involve? How can we be assured that it was properly performed? Since the facts attendant to the alleged reprogramming are still
shrouded in mystery, the Court cannot give any weight to Comelecs bare allegations.
The fact that a total of 1,973 of the machines has ultimately passed the MIRDC-DOST tests does not by itself serve as an endorsement
of the soundness of the software program, much less as a proof that it has been reprogrammed. In the first place, nothing on record
shows that the tests and re-tests conducted on the machines were intended to address the serious deficiencies noted earlier. As a
matter of fact, the MIRDC-DOST letter does not even indicate what kinds of tests or re-tests were conducted, their exact nature and
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scope, and the specific objectives thereof. The absence of relevant supporting documents, combined with the utter vagueness of the
letter, certainly fails to inspire belief or to justify the expansive confidence displayed by Comelec. In any event, it goes without saying
that remedial measures such as the alleged reprogramming cannot in any way mitigate the grave abuse of discretion already
committed as early as April 15, 2003.
Rationale of Public Bidding Negated
by the Third Type of Software
Respondent Comelec tries to assuage this Courts anxiety in these words: "The reprogrammed software that has already passed the
requirements of Republic Act No. 8436 during the MIRDC-DOST testing and acceptance procedures will require further customization
since the following additional elements, among other things, will have to be considered before the final software can be used on
election day: 1. Final Certified List of Candidates x x x 2. Project of Precincts x x x 3. Official Ballot Design and Security Features x x x
4. Encryption, digital certificates and digital signatures x x x. The certified list of candidates for national elective positions will be
finalized on or before 23 January 2004 while the final list of projects of precincts will be prepared also on the same date. Once all the
above elements are incorporated in the software program, the Test Certification Group created by the Ad Hoc Technical Evaluation
Committee will conduct meticulous testing of the final software before the same can be used on election day. In addition to the testing
to be conducted by said Test Certification Group, the Comelec will conduct mock elections in selected areas nationwide not only for
purposes of public information but also to further test the final election day program. Public respondent Comelec, therefore, requests
that it be given up to 16 February 2004 to comply with this requirement."

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The foregoing passage shows the imprudent approach adopted by Comelec in the bidding and acquisition process. The Commission
says that before the software can be utilized on election day, it will require "customization" through addition of data -- like the list of
candidates, project of precincts, and so on. And inasmuch as such data will become available only in January 2004 anyway, there is
therefore no perceived need on Comelecs part to rush the supplier into producing the final (or near-final) version of the software before
that time. In any case, Comelec argues that the software needed for the electoral exercise can be continuously developed, tested,
adjusted and perfected, practically all the way up to election day, at the same time that the Commission is undertaking all the other
distinct and diverse activities pertinent to the elections.
Given such a frame of mind, it is no wonder that Comelec paid little attention to the counting and canvassing software during the entire
bidding process, which took place in February-March 2003. Granted that the software was defective, could not detect and prevent the
re-use of previously downloaded data or produce the audit trail -- aside from its other shortcomings -- nevertheless, all those
deficiencies could still be corrected down the road. At any rate, the software used for bidding purposes would not be the same one that
will be used on election day, so why pay any attention to its defects? Or to the Comelecs own bidding rules for that matter?
Clearly, such jumbled ratiocinations completely negate the rationale underlying the bidding process mandated by law.
At the very outset, the Court has explained that Comelec flagrantly violated the public policy on public biddings (1) by allowing
MPC/MPEI to participate in the bidding even though it was not qualified to do so; and (2) by eventually awarding the Contract to
MPC/MPEI. Now, with the latest explanation given by Comelec, it is clear that the Commission further desecrated the law on public
bidding by permitting the winning bidder to change and alter the subject of the Contract (the software), in effect allowing a substantive
amendment without public bidding.
This stance is contrary to settled jurisprudence requiring the strict application of pertinent rules, regulations and guidelines for public
bidding for the purpose of placing each bidder, actual or potential, on the same footing. The essence of public bidding is, after all, an
opportunity for fair competition, and a fair basis for the precise comparison of bids. In common parlance, public bidding aims to "level
the playing field." That means each bidder must bid under the same conditions; and be subject to the same guidelines, requirements
and limitations, so that the best offer or lowest bid may be determined, all other things being equal.
Thus, it is contrary to the very concept of public bidding to permit a variance between the conditions under which bids are invited and
those under which proposals are submitted and approved; or, as in this case, the conditions under which the bid is won and those
under which the awarded Contract will be complied with. The substantive amendment of the contract bidded out, without any public
bidding -- after the bidding process had been concluded -- is violative of the public policy on public biddings, as well as the spirit and
intent of RA 8436. The whole point in going through the public bidding exercise was completely lost. The very rationale of public bidding
was totally subverted by the Commission.
From another perspective, the Comelec approach also fails to make sense. Granted that, before election day, the software would still
have to be customized to each precinct, municipality, city, district, and so on, there still was nothing at all to prevent Comelec from
requiring prospective suppliers/bidders to produce, at the very start of the bidding process, the "next-to-final" versions of the software
(the best software the suppliers had) -- pre-tested and ready to be customized to the final list of candidates and project of precincts,
among others, and ready to be deployed thereafter. The satisfaction of such requirement would probably have provided far better bases
for evaluation and selection, as between suppliers, than the so-called demo software.Respondents contend that the bidding suppliers
counting machines were previously used in at least one political exercise with no less than 20 million voters. If so, it stands to reason
that the software used in that past electoral exercise would probably still be available and, in all likelihood, could have been adopted for
use in this instance. Paying for machines and software of that category (already tried and proven in actual elections and ready to be
adopted for use) would definitely make more sense than paying the same hundreds of millions of pesos for demo software and empty
promises of usable programs in the future.
But there is still another gut-level reason why the approach taken by Comelec is reprehensible. It rides on the perilous assumption that
nothing would go wrong; and that, come election day, the Commission and the supplier would have developed, adjusted and "reprogrammed" the software to the point where the automated system could function as envisioned. But what if such optimistic projection
does not materialize? What if, despite all their herculean efforts, the software now being hurriedly developed and tested for the
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automated system performs dismally and inaccurately or, worse, is hacked and/or manipulated? What then will we do with all the
machines and defective software already paid for in the amount of P849 million of our tax money? Even more important,what will
happen to our country in case of failure of the automation?
The Court cannot grant the plea of Comelec that it be given until February 16, 2004 to be able to submit a "certification relative to the
additional elements of the software that will be customized," because for us to do so would unnecessarily delay the resolution of this
case and would just give the poll body an unwarranted excuse to postpone the 2004 elections. On the other hand, because such
certification will not cure the gravely abusive actions complained of by petitioners, it will be utterly useless.
Is this Court being overly pessimistic and perhaps even engaging in speculation? Hardly. Rather, the Court holds that Comelec should
not have gambled on the unrealistic optimism that the suppliers software development efforts would turn out well. The Commission

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should have adopted a much more prudent and judicious approach to ensure the delivery of tried and tested software, and readied
alternative courses of action in case of failure. Considering that the nations future is at stake here, it should have done no less.
Epilogue
Once again, the Court finds itself at the crossroads of our nations history. At stake in this controversy is not just the business of a
computer supplier, or a questionable proclamation by Comelec of one or more public officials. Neither is it about whether this country
should switch from the manual to the automated system of counting and canvassing votes. At its core is the ability and capacity of the
Commission on Elections to perform properly, legally and prudently its legal mandate to implement the transition from manual to
automated elections.
Unfortunately, Comelec has failed to measure up to this historic task. As stated at the start of this Decision, Comelec has not merely
gravely abused its discretion in awarding the Contract for the automation of the counting and canvassing of the ballots. It has also put at
grave risk the holding of credible and peaceful elections by shoddily accepting electronic hardware and software that admittedly failed
to pass legally mandated technical requirements. Inadequate as they are, the remedies it proffers post facto do not cure the grave
abuse of discretion it already committed (1) on April 15, 2003, when it illegally made the award; and (2) "sometime" in May 2003 when it
executed the Contract for the purchase of defective machines and non-existent software from a non-eligible bidder.
For these reasons, the Court finds it totally unacceptable and unconscionable to place its imprimatur on this void and illegal transaction
that seriously endangers the breakdown of our electoral system. For this Court to cop-out and to close its eyes to these illegal
transactions, while convenient, would be to abandon its constitutional duty of safeguarding public interest.
As a necessary consequence of such nullity and illegality, the purchase of the machines and all appurtenances thereto including the
still-to-be-produced (or in Comelecs words, to be "reprogrammed") software, as well as all the payments made therefor, have no basis
whatsoever in law. The public funds expended pursuant to the void Resolution and Contract must therefore be recovered from the
payees and/or from the persons who made possible the illegal disbursements, without prejudice to possible criminal prosecutions
against them.
Furthermore, Comelec and its officials concerned must bear full responsibility for the failed bidding and award, and held accountable for
the electoral mess wrought by their grave abuse of discretion in the performance of their functions. The State, of course, is not bound
by the mistakes and illegalities of its agents and servants.
True, our country needs to transcend our slow, manual and archaic electoral process. But before it can do so, it must first have a
diligent and competent electoral agency that can properly and prudently implement a well-conceived automated election system.
At bottom, before the country can hope to have a speedy and fraud-free automated election, it must first be able to procure the proper
computerized hardware and software legally, based on a transparent and valid system of public bidding. As in any democratic system,
the ultimate goal of automating elections must be achieved by a legal, valid and above-board process of acquiring the necessary tools
and skills therefor. Though the Philippines needs an automated electoral process, it cannot accept just any system shoved into its
bosom through improper and illegal methods. As the saying goes, the end never justifies the means. Penumbral contracting will not
produce enlightened results.
WHEREFORE, the Petition is GRANTED. The Court hereby declares NULL and VOID Comelec Resolution No. 6074 awarding the
contract for Phase II of the AES to Mega Pacific Consortium (MPC). Also declared null and void is the subject Contract executed
55
between Comelec and Mega Pacific eSolutions (MPEI). Comelec is furtherORDERED to refrain from implementing any other contract
or agreement entered into with regard to this project.
Let a copy of this Decision be furnished the Office of the Ombudsman which shall determine the criminal liability, if any, of the public
officials (and conspiring private individuals, if any) involved in the subject Resolution and Contract. Let the Office of the Solicitor
General also take measures to protect the government and vindicate public interest from the ill effects of the illegal disbursements of
public funds made by reason of the void Resolution and Contract.

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