EN BANC

G.R. No. 195649

July 2, 2013

CASAN MACODE MACQUILING, PETITIONER,

vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO Y CAGOCO, AND LINOG G.
BALUA. RESPONDENTS.
RESOLUTION
SERENO, J.:
This Resolution resolves the Motion for Reconsideration filed by respondent on May 10, 2013
and the Supplemental Motion for Reconsideration filed on May 20, 2013.
We are not unaware that the term of office of the local officials elected in the May 2010
elections has already ended on June 30, 2010. Arnado, therefore, has successfully finished
his term of office. While the relief sought can no longer be granted, ruling on the motion for
reconsideration is important as it will either affirm the validity of Arnados election or affirm
that Arnado never qualified to run for public office.
Respondent failed to advance any argument to support his plea for the reversal of this
Courts Decision dated April 16, 2013. Instead, he presented his accomplishments as the
Mayor of Kauswagan, Lanao del Norte and reiterated that he has taken the Oath of Allegiance
not only twice but six times. It must be stressed, however, that the relevant question is the
efficacy of his renunciation of his foreign citizenship and not the taking of the Oath of
Allegiance to the Republic of the Philippines. Neither do his accomplishments as mayor
affect the question before this Court.
Respondent cites Section 349 of the Immigration and Naturalization Act of the United States
as having the effect of expatriation when he executed his Affidavit of Renunciation of
American Citizenship on April 3, 2009 and thus claims that he was divested of his American
citizenship. If indeed, respondent was divested of all the rights of an American citizen, the
fact that he was still able to use his US passport after executing his Affidavit of Renunciation
repudiates this claim.
The Court cannot take judicial notice of foreign laws,1 which must be presented as public
documents2 of a foreign country and must be "evidenced by an official publication
thereof."3 Mere reference to a foreign law in a pleading does not suffice for it to be considered
in deciding a case.
Respondent likewise contends that this Court failed to cite any law of the United States
"providing that a person who is divested of American citizenship thru an Affidavit of
Renunciation will re-acquire such American citizenship by using a US Passport issued prior
to expatriation."4

American law does not govern in this jurisdiction. Instead, Section 40(d) of the Local
Government Code calls for application in the case before us, given the fact that at the time
Arnado filed his certificate of candidacy, he was not only a Filipino citizen but, by his own
declaration, also an American citizen. It is the application of this law and not of any foreign
law that serves as the basis for Arnados disqualification to run for any local elective
position.
With all due respect to the dissent, the declared policy of Republic Act No. (RA) 9225 is that
"all Philippine citizens who become citizens of another country shall be deemed not to have
lost their Philippine citizenship under the conditions of this Act."5 This policy pertains to the
reacquisition of Philippine citizenship. Section 5(2)6 requires those who have re-acquired
Philippine citizenship and who seek elective public office, to renounce any and all foreign
citizenship.
This requirement of renunciation of any and all foreign citizenship, when read together with
Section 40(d) of the Local Government Code7 which disqualifies those with dual citizenship
from running for any elective local position, indicates a policy that anyone who seeks to run
for public office must be solely and exclusively a Filipino citizen. To allow a former Filipino
who reacquires Philippine citizenship to continue using a foreign passport which indicates
the recognition of a foreign state of the individual as its national even after the Filipino has
renounced his foreign citizenship, is to allow a complete disregard of this policy.
Further, we respectfully disagree that the majority decision rules on a situation of doubt.
Indeed, there is no doubt that Section 40(d) of the Local Government Code disqualifies those
with dual citizenship from running for local elective positions.
There is likewise no doubt that the use of a passport is a positive declaration that one is a
citizen of the country which issued the passport, or that a passport proves that the country
which issued it recognizes the person named therein as its national.
It is unquestioned that Arnado is a natural born Filipino citizen, or that he acquired American
citizenship by naturalization. There is no doubt that he reacquired his Filipino citizenship by
taking his Oath of Allegiance to the Philippines and that he renounced his American
citizenship. It is also indubitable that after renouncing his American citizenship, Arnado used
his U.S. passport at least six times.
If there is any remaining doubt, it is regarding the efficacy of Arnados renunciation of his
American citizenship when he subsequently used his U.S. passport. The renunciation of
foreign citizenship must be complete and unequivocal. The requirement that the renunciation
must be made through an oath emphasizes the solemn duty of the one making the oath of
renunciation to remain true to what he has sworn to. Allowing the subsequent use of a
foreign passport because it is convenient for the person to do so is rendering the oath a
hollow act. It devalues the act of taking of an oath, reducing it to a mere ceremonial formality.
The dissent states that the Court has effectively left Arnado "a man without a country". On
the contrary, this Court has, in fact, found Arnado to have more than one. Nowhere in the
decision does it say that Arnado is not a Filipino citizen. What the decision merely points out
is that he also possessed another citizenship at the time he filed his certificate of candidacy.
1wphi1

Well-settled is the rule that findings of fact of administrative bodies will not be interfered with
by the courts in the absence of grave abuse of discretion on the part of said agencies, or

unless the aforementioned findings are not supported by substantial evidence.8 They are
accorded not only great respect but even finality, and are binding upon this Court, unless it is
shown that the administrative body had arbitrarily disregarded or misapprehended evidence
before it to such an extent as to compel a contrary conclusion had such evidence been
properly appreciated.9
Nevertheless, it must be emphasized that COMELEC First Division found that Arnado used
his U.S. Passport at least six times after he renounced his American citizenship. This was
debunked by the COMELEC En Banc, which found that Arnado only used his U.S. passport
four times, and which agreed with Arnados claim that he only used his U.S. passport on
those occasions because his Philippine passport was not yet issued. The COMELEC En Banc
argued that Arnado was able to prove that he used his Philippine passport for his travels on
the following dates: 12 January 2010, 31 January 2010, 31 March 2010, 16 April 2010, 20 May
2010, and 4 June 2010.
None of these dates coincide with the two other dates indicated in the certification issued by
the Bureau of Immigration showing that on 21 January 2010 and on 23 March 2010, Arnado
arrived in the Philippines using his U.S. Passport No. 057782700 which also indicated therein
that his nationality is USA-American. Adding these two travel dates to the travel record
provided by the Bureau of Immigration showing that Arnado also presented his U.S. passport
four times (upon departure on 14 April 2009, upon arrival on 25 June 2009, upon departure on
29 July 2009 and upon arrival on 24 November 2009), these incidents sum up to six.
The COMELEC En Banc concluded that "the use of the US passport was because to his
knowledge, his Philippine passport was not yet issued to him for his use."10 This conclusion,
however, is not supported by the facts. Arnado claims that his Philippine passport was
issued on 18 June 2009. The records show that he continued to use his U.S. passport even
after he already received his Philippine passport. Arnados travel records show that he
presented his U.S. passport on 24 November 2009, on 21 January 2010, and on 23 March
2010. These facts were never refuted by Arnado.
Thus, the ruling of the COMELEC En Banc is based on a misapprehension of the facts that
the use of the U.S. passport was discontinued when Arnado obtained his Philippine passport.
Arnados continued use of his U.S. passport cannot be considered as isolated acts contrary
to what the dissent wants us to believe.
It must be stressed that what is at stake here is the principle that only those who are
exclusively Filipinos are qualified to run for public office. If we allow dual citizens who wish
to run for public office to renounce their foreign citizenship and afterwards continue using
their foreign passports, we are creating a special privilege for these dual citizens, thereby
effectively junking the prohibition in Section 40(d) of the Local Government Code.
WHEREFORE, the Motion for Reconsideration and the Supplemental Motion for
Reconsideration are hereby DENIED with finality.
SO ORDERED.
Carpio, Velasco, Jr., Peralta, Bersamin, Abad, Villarama, Jr., Perez, Reyes, and PerlasBernabe, JJ., concur.
Leonardo-De Castro, Del Castillo, Mendoza, and Leonen, JJ., joins the dissent of J. Brion.
Brion, J., I dissent.

Footnotes
Benedicto v. CA, G.R. No. 125359, 4 September 2001, citing Vda. de Perez v. Tolete,
232 SCRA 722, 735 (1994), which in turn cited Philippine Commercial and Industrial
Bank v. Escolin, 58 SCRA 266 (1974).
1

See Sec. 19, Rule 132 of the Rules of Court:

SEC. 19. Classes of Documents. For the purpose of their presentation in
evidence, documents are either public or private.
Public documents are:
(a) The written official acts, or records of the official acts of the sovereign
authority, official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country.

Sec. 24, Rule 132 of the Rules of Court

SEC. 24. Proof of official record. The record of public documents referred to
in paragraph (a) of Section 19, when admissible for any purpose, may be
evidenced by an official publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and accompanied, if
the record is not kept in the Philippines, with a certificate that such officer has
the custody. If the office in which the record is kept is in a foreign country, the
certificate may be made by a secretary of the embassy or legation, consul
general, consul, vice consul, or consular agent or by any officer in the foreign
service of the Philippines stationed in the foreign country in which the record
is kept, and authenticated by the seal of his office.

Motion for Reconsideration, p. 2

Sec. 2, RA 9225.

Sec. 5. Civil and Political Rights and Liabilities. Those who retain or reacquire
Philippine citizenship under this Act shall enjoy full civil and political rights and be
subject to all attendant liabilities and responsibilities under existing laws of the
Philippines and the following conditions:
6

(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution
and existing laws and, at the time of the filing of the certificate of candidacy,
make a personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath;
SECTION 40. Disqualifications. The following persons are disqualified from
running for any elective local position:
7

[]
(d) Those with dual citizenship;
Raniel v. Jochico, G.R. No. 153413, 2 March 2007, 517 SCRA 221, 227, citing Gala v.
Ellice Agro-Industrial Corporation, 463 Phil. 846, 859 (2003).
8

Id., citing Industrial Refractories Corporation of the Philippines v. Court of Appeals,

439 Phil. 36, 48 (2002).
9

10

Rollo, p. 66.

Gonzales v Comelec G.R No. 192856 March 18, 2011

Facts: Petitioner Fernando Gonzales and Reno Lim both filed certificates of candidacy for
the position of Representative of the 3rd district of Albay in the May 10, 2010 election. Lim
was the incumbent Congressman while Gonzales was the former Governor of Albay. On
March 30, 2010 a petiton for disqualification and cancellation of certificate of candidacy
was filed by Stephen Bichara on the ground that Gonzales is a Spanish national, being the
legitimate child of a spanish father and a filipino mother, and that failed to elect Philippines
citizenship upon reaching the age of majority in accordance with the provisions of
Commonwealth Act no. 625. And that his certificate of candidacy contains
misleading information. The Comelec second division division disqualified Gonzales in the
forthcoming National and Local elections. Gonzales thru counsel, received a copy of the
aforesaid resolution on May 11, 2010. Lim petitioned the Provincial Board of Canvassers to
consider the votes cast for Gonzales as stray or not counted and/or suspend his
proclamation, citing the second divisions May 8, 2010 resolution disqualifying Gonzales as
a candidate. PBOC dismissed the petition stating that the period for filing the of a motion
for reconsideration of the comelec resolution has not yet elapsed, and hence, the same is not
yet final and executory. Based on the results of the counting, Gonzales emerged as the
winner having garnered a total vote of 96000 while Lim ranked second with a vote of 68701
votes. On May 12, 2010, PBOC officially proclaimed Gonzales as the duly elected
Representative of the 3rd district of Albay.
Issue: WON the Comelec has jurisdiction over a Representative which was officially
proclaimed as a winner.
Held: We have constantly held that once a winning candidate has been proclaimed, taken
his oath, and assumed office as a member of the house of rep. the comelecs jurisdiction
over election, returns, and qualifications ends and the HRETs own jurisdiction begins. We
declared that the court does not have jurisdiction to pass upon the eligibility of the private
respondent who was already a member of the house at the time of the filing of the petition
for cerctiorari.

[G.R. No. 149803. January 31, 2002.]

DATU ANDAL S. AMPATUAN, BIMBO Q. SINSUAT, SR., IBRAHIM B. BIRUAR,
ALONTO B. DAUDIE, MICHAEKL B. DIRANGAREN, ASNAWIS S. LIMBONA,
RUSSMAN Q. SINSUAT, ZALNUDIN M. ABUTAZIL, DATUWATA U. ADZIS, BORGIVA
T. DATUMANONG, FREDDIE G. MANGUDADATU and ABBAS A. PENDATUN, JR.,
Petitioners, v. COMMISSION ON ELECTIONS, DATU ZACARIA A. CANDAO, DATU
NORODIN M. MATALAM, KHARIS M. BARAGUIR, PAGRAS D. BIRUAR, CAHAR
PENDAT IBAY, PATULA O. TIOLO, MARHOMSAL K. LAUBAN, MENTANG T.
KABAGANI, ELIZABETH C. MASUKAT, GAPOR A. RAJAMUDA, SAID S. SALIK and
LINTATO G. SANDIGAN, Respondents.
DECISION
PARDO, J.:
The case is a petition for certiorari and prohibition under Rule 64 in relation to Rule 65 of
the Revised Rules of Court with preliminary injunction or temporary restraining order 1 to
nullify and set aside two (2) orders dated July 26, 2001 2 and August 28, 2001 3 of the
Commission on Elections (COMELEC), ordering a random technical examination of
pertinent election paraphernalia and other documents in several municipalities in the
province of Maguindanao to determine a failure of elections.
Petitioners 4 and respondents 5 were candidates for the provincial elective positions in the
province of Maguindanao in the May 14, 2001 election. Petitioner Ampatuan and
respondent Candao contended for the position of governor. The slate of Ampatuan emerged
as winners as per election returns.
On May 23, 2001, respondents filed a petition with the Comelec for the annulment of
election results and/or declaration of failure of elections 6 in several municipalities 7 in the
province of Maguindanao. They claimed that the elections "were completely sham and
farcical." The ballots were filled-up en masse by a few persons the night before election

day, and in some precincts, the ballot boxes, official ballots and other election
paraphernalia were not delivered at all. 8
On May 25, 2001, the Comelec issued an order suspending the proclamation of the winning
candidates for congressman of the second district, governor, vice-governor and board
members of Maguindanao. 9
On May 30, 2001, petitioners filed with the Comelec a motion to lift the suspension of
proclamation. 10 On June 14, 2001, the Comelec issued an order lifting the suspension of
proclamation of the winning candidates for governor, vice-governor and board members of
the first and second districts. 11 Consequently, the Provincial Board of Canvassers
proclaimed petitioners winners. 12
On June 16, 2001, respondents filed with the Supreme Court a petition to set aside the
Comelec order dated June 14, 2001, and preliminary injunction to suspend the effects of
the proclamation of the petitioners. 13 Meantime, petitioners assumed their respective
offices on June 30, 2001. On July 17, 2001, the Court resolved to deny respondents
petition. 14
Petitioners assumption into office notwithstanding, on July 26, 2001, the Comelec ordered
the consolidation of respondents petition for declaration of failure of elections with SPA
Nos. 01-244, 01-332, 01-360, 01-388 and 01-390. 15 The COMELEC further ordered a
random technical examination on four to seven precincts per municipality on the thumbmarks and signatures of the voters who voted and affixed in their voters registration
records, and forthwith directed the production of relevant election documents in these
municipalities. 16
On August 28, 2001, the Comelec issued another order 17 directing the continuation of the
hearing and disposition of the consolidated SPAs on the failure of elections and other
incidents related thereto. It likewise ordered the continuation of the technical examination
of election documents as authorized in the July 26, 2001 order. On September 27, 2001, the
Comelec issued an order outlining the procedure to be followed in the technical
examination. 18
On September 26, 2001, petitioners filed the present petition. 19 They claimed that by
virtue of their proclamation pursuant to the June 14, 2001 order issued by the Comelec, the
proper remedy available to respondents was not a petition for declaration of failure of
elections but an election protest. The former is heard summarily while the latter involves a
full-blown trial. Petitioners argued that the manner by which the technical examination is
to be conducted 20 would defeat the summary nature of a petition for declaration of failure
of elections.
On October 5, 2001, petitioners filed a motion 21 reiterating their request for a temporary
restraining order to enjoin the implementation of the July 26, 2001 and August 28, 2001
Comelec orders.

On October 22, 2001, the Comelec issued an order suspending the implementation of the
two (2) assailed orders, the pertinent portion of which reads as follows:
jgc:chanrobles.com.ph

"The Commission, in view of the pendency of G. R. No. 149803 . . . requiring it to comment

within ten (10) days from notice, hereby suspends implementation of its orders of July 26,
2001 and August 28, 2001 in deference to the resolution of said court." 22
However, on November 13, 2001, the Comelec issued another order lifting the suspension.
23
On November 20, 2001, we issued a temporary restraining order, to wit:

jgc:chanrobles.com.ph

". . . the Court Resolved to (a) ISSUE the TEMPORARY RESTRAINING ORDER prayed
for, effective immediately and continuing until further orders from this Court, ordering the
respondent Commission on Elections to CEASE and DESIST from ordering the lifting of
the suspended implementation orders dated 26 July 2001 and 28 August 2001 in SPA No.
01-323 . . ." 24
The main issue to be resolved is whether the Commission on Elections was divested of its
jurisdiction to hear and decide respondents petition for declaration of failure of elections
after petitioners had been proclaimed.
We deny the petition.
Petitioners submit that by virtue of their proclamation as winners, the only remedy left for
private respondents is to file an election protest, in which case, original jurisdiction lies
with the regular courts. Petitioners cited several rulings that an election protest is the
proper remedy for a losing candidate after the proclamation of the winning candidate.25
cralaw:red

However, the authorities petitioners relied upon involved pre-proclamation controversies.

In Loong v. Commission on Elections, 26 we ruled that "a pre-proclamation controversy is
not the same as an action for annulment of election results, or failure of elections." These
two remedies were more specifically distinguished in this wise:
jgc:chanrobles.com.ph

"While, however, the Comelec is restricted, in pre-proclamation cases, to an examination of

the election returns on their face and is without jurisdiction to go beyond or behind them
and investigate election irregularities, the Comelec is duty bound to investigate allegations
of fraud, terrorism, violence, and other analogous causes in actions for annulment of
election results or for declaration of failure of elections, as the Omnibus Election Code
denominates the same. Thus, the Comelec, in the case of actions for annulment of election
results or declaration of failure of elections, may conduct technical examination of election
documents and compare and analyze voters signatures and thumbprints in order to
determine whether or not the elections had indeed been free, honest and clean." 27
The fact that a candidate proclaimed has assumed office does not deprive the Comelec of
its authority to annul any canvass and illegal proclamation. 28 In the case at bar, we cannot

assume that petitioners proclamation and assumption into office on June 30, 2001, was
legal precisely because the conduct by which the elections were held was put in issue by
respondents in their petition for annulment of election results and/or declaration of failure
of elections.
Respondents allegation of massive fraud and terrorism that attended the May 14, 2001
election in the affected municipalities cannot be taken lightly as to warrant the dismissal of
their petition by the Comelec on the simple pretext that petitioners had been proclaimed
winners. We are not unmindful of the fact that "a pattern of conduct observed in past
elections has been the pernicious grab-the-proclamation-prolong-the-protest slogan of
some candidates or parties" such that even if the protestant wins, it becomes "a mere
pyrrhic victory, i.e., a vindication when the term of office is about to expire or has
expired.." . . "We have but to reiterate the oft-cited rule that the validity of a proclamation
may be challenged even after the irregularly proclaimed candidate has assumed office." 29
Petitioners likewise rely on the case of Typoco, Jr. v. Commission on Elections. 30 This
Court held that Comelec committed no grave abuse of discretion in dismissing a petition
for declaration of failure of elections. However, we made a pronouncement that the
dismissal was proper since the allegations in the petition did not justify a declaration of
failure of elections. "Typocos relief was for Comelec to order a recount of the votes cast, on
account of the falsified election returns, which is properly the subject of an election
contest." 31
Respondents petition for declaration of failure of elections, from which the present case
arose, exhaustively alleged massive fraud and terrorism that, if proven, could warrant a
declaration of failure of elections. Thus:
jgc:chanrobles.com.ph

"4.1. The elections in at least eight (8) other municipalities . . . were completely sham and
farcical. There was a total failure of elections in these municipalities, in that in most of
these municipalities, no actual voting was done by the real, legitimate voters on election day
itself but voting was made only by few persons who prepared in advance, and en masse,
the ballots the day or the night before election and, in many precincts, there was completely
no voting because of the non-delivery of ballot boxes, official ballots and other election
paraphernalia; and in certain municipalities, while some semblance of voting was
conducted on election day, there was widespread fraudulent counting and/or counting
under very irregular circumstances and/or tampering and manufacture of election returns
which completely bastardized the sovereign will of the people. These illegal and fraudulent
acts of desecration of the electoral process were perpetrated to favor and benefit
respondents. These acts were, by and large, committed with the aid and/or direct
participation of military elements who were deployed to harass, intimidate or coerce voters
and the supporters or constituents of herein petitioners, principally, of reelectionist
Governor Datu Zacaria Candao. Military units and personnel visibly, openly and
flagrantly violated election laws and regulations by escorting people or elements engaged in
the illegal, advanced preparation of ballots and election returns and, at times, manning the
polling places or precincts themselves and/or staying within the prohibited radius. Ballot
boxes and other election paraphernalia were brought not to the precincts or voting centers

concerned but somewhere else where massive manufacture of ballots and election
documents were perpetrated." 32
The Comelec en banc has the authority to annul election results and/or declare a failure of
elections. 33 Section 6 of the Omnibus Election Code further provides that:
jgc:chanrobles.com.ph

"SECTION 6. Failure of election. If, on account of force majeure, violence, terrorism,

fraud, or other analogous causes the election in any polling place has not been held on the
date fixed, or had been suspended before the hour fixed by law for the closing of the voting,
or after the voting and during the preparation and the transmission of the election returns
or in the custody or canvass thereof, such election results in a failure to elect, and in any of
such cases the failure or suspension of election would affect the result of the election, the
Commission shall, on the basis of a verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of the election not held, suspended
or which resulted in a failure to elect but not later than thirty days after the cessation of the
cause of such postponement or suspension of the election of failure to elect."
cralaw virtua1aw library

Elucidating on the concept of failure of election, we held that:

jgc:chanrobles.com.ph

". . . before Comelec can act on a verified petition seeking to declare a failure of election,
two (2) conditions must concur: first, no voting has taken place in the precincts concerned
on the date fixed by law or, even if there was voting, the election nevertheless resulted in a
failure to elect; and second, the votes cast would affect the result of the election. In Loong v.
Commission on Elections, this Court added that the cause of such failure of election should
have been any of the following: force majeure, violence, terrorism, fraud or other
analogous cases." 34
In another case, we ruled that "while it may be true that election did take place, the
irregularities that marred the counting of votes and the canvassing of the election returns
resulted in a failure to elect." 35
In the case at bar, the Comelec is duty-bound to conduct an investigation as to the veracity
of respondents allegations of massive fraud and terrorism that attended the conduct of the
May 14, 2001 election. It is well to stress that the Comelec has started conducting the
technical examination on November 16, 2001. However, by an urgent motion for a
temporary restraining order filed by petitioners, in virtue of which we issued a temporary
restraining order on November 20, 2001, the technical examination was held in abeyance
until the present. In order not to frustrate the ends of justice, we lift the temporary
restraining order and allow the technical examination to proceed with deliberate dispatch.
WHEREFORE, the petition is hereby DISMISSED. The temporary restraining order
issued on November 20, 2001 is DISSOLVED. The Commission on Elections is directed to
proceed with the hearing of the consolidated petitions and the technical examination as
outlined in its September 27, 2001 order with deliberate dispatch. No costs.
SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing,
Buena, Ynares-Santiago, De Leon, Jr. and Carpio, JJ., concur.
Separate Opinions
MELO, J.:
I am constrained to dissent from the majority opinion penned by Mr. Justice Bernardo P.
Pardo because of the far reaching implications on the future conduct of national elections
as supervised and administered by the Commission on Elections and its handling of
resulting election contests.
Petitioners question the jurisdiction of the Commission on Elections (COMELEC) to take
cognizance of and act upon private respondents petition to declare a failure of elections in
ten (10) municipalities of Maguindanao during the May 14, 2001 elections.
The issue calls for the clear demarcation of the dividing line in COMELECs exercise of
power insofar as declaring a failure of elections on one hand and deciding an election
contest on the other, is concerned.
Petitioners assert that factually and legally, there has been no failure of elections. The
fraud, violence, and other electoral irregularities alleged by the respondents cover
practically the entire spectrum of serious election anomalies. They will be exactly the same
grounds that respondents will raise in an election contest. Petitioners question the
consideration of these similar grounds in a summary, non-trial type of examination after
their proclamation and several months of occupying the elective positions.
The record shows that COMELEC undertook a deliberate and attentive examination of
respondents objections before it ordered the proclamation of winning candidates.
Petitioners ask if all the steps casting and counting of ballots, canvass of returns,
examination of the losing parties objections, and the proclamation may be undone, set
aside, and cancelled on the basis of a random and non-adversarial examination of only 4 to
7 precincts in each of the 10 municipalities where respondents lost and a failure of elections
is alleged to have resulted. The undisputed facts, as culled from the record are as follows
Datu Andal S. Ampatuan and the other petitioners were candidates for Governor, ViceGovernor, and Board Members, respectively, in the province of Maguindanao during the
May 14, 2001 elections. Opposing them were Datu Zacaria A. Candao and the other
respondents.
Datu Ampatuan garnered 175,815 votes as against Datu Candaos 114,105 votes, thus
getting a majority of 62,711 votes. Ampatuan carved his slate of candidates to victory.
On May 23, 2001 respondents filed a petition before COMELEC to annul elections returns

or to declare a failure of elections in 10 out of the 21 municipalities of Maguindanao.

Respondents alleged the pre-filling of ballots and other election documents on the day
before the May 14, 2001 elections and the submission at gunpoint of falsified or tampered
election returns in addition to alleged widespread acts of violence and intimidation inflicted
upon the Board of Election Inspectors and Canvassers.
Acting on the petition, COMELEC issued a May 25, 2001 order suspending the
proclamation of the winning candidates. It investigated the allegations raised in the
petition.
On June 14, 2001 COMELEC lifted its suspension order and directed the proclamation,
without delay, of Ampatuan and his co-petitioners as the winning candidates. Based on this
June 14, 2001 order, petitioners were proclaimed duly elected by the Provincial Board of
Canvassers (PBC).
Datu Candao and his group went to this Court on a petition docketed as G.R. Nos. 14828990 questioning the lifting by COMELEC of its suspension-of-proclamation order and the
subsequent proclamation of Datu Ampatuan and his group. Petitioners in those two cases
prayed for a temporary restraining order or a writ of preliminary injunction to suspend
the effects of the proclamation of Ampatuan and his companions.
When the prayed-for TRO or writ of preliminary injunction was not issued, herein
petitioners on June 30, 2001 assumed the powers and functions of their respective offices.
They have served as such up to the present time.
On July 17, 2001, this Court denied for lack of merit, the Candao petition for injunctive
relief, thus sustaining the assumption of office by the proclaimed officials.
On July 26, 2001, COMELEC issued the resolution questioned in this present petition.
COMELEC consolidated the various petitions for the annulment of election results and/or
the declaration of failure of elections. It required a random technical examination on 4 to 7
precincts per municipality on the thumb marks and signatures of the voters. On July 28,
2001, COMELEC issued another resolution, also questioned in the instant petition,
continuing the proceedings on the alleged failure of elections and the technical
examinations earlier ordered.
On September 26, 2001, the Ampatuan petitioners filed the present petition so as to reverse
and set aside the July 26 and 28, 2001 resolutions and praying as well that COMELEC be
ordered to dismiss the consolidated SPA No. 01-323.
On October 2, 2001, COMELEC resolved to suspend the implementation of the questioned
resolutions, out of deference to the Supreme Courts taking cognizance of the instant
petition.
On November 13, 2001, however, the COMELEC decided to lift its October 2, 2001
suspending implementation of the questioned resolutions inspite of the pendency of the

instant case.
On November 20, 2001, this Court, acting on an urgent manifestation and motion of
petitioner Bimbo Q. Sinsuat, Sr., issued a TRO, ordering COMELEC to cease and desist
from directing the lifting of the suspension order which interrupted the implementation of
the July 26 and July 28, 2001 resolutions. On December 7, 2001, the COMELEC Chairman
ordered implementation of the "cease and desist" TRO of this Court.
Private respondents filed their Comment on the instant petition on November 29, 2001. The
Solicitor-General filed a Comment for COMELEC on January 2, 2001. A Consolidated
Reply was filed on January 7, 2002 followed by a Manifestation With Urgent Motion To
Lift TRO filed by the private respondents.
The issues in this case revolve around the exercise of COMELEC power. Petitioners allege
that under the circumstances of the case, COMELEC has no jurisdiction to declare a
failure of elections in the 10 municipalities stated in their petitions. Petitioners object to the
limited, random, and far-from-thorough technical examination, short-cutting all steps and
proceedings which led to their proclamation. They say that the election irregularities
alleged by private respondent should be considered by COMELEC under its authority to
adjudicate election contests.
When may a failure of election be validly declared by COMELEC in the exercise of its
executive-administrative power? On the other hand, when is the controversy appropriate
for COMELEC acting as a judicial body? In both cases, the grounds based on fraud,
irregularities, and intimidation may be the same. However thin though the line of
separation may be, there is a jurisdictional distinction in the exercise of power. And the
distinction is based on no less than the Constitution (Section 2, Art. IX-C, Constitution).
The traditional function of COMELEC since its creation in 1940 has been supervisory and
administrative in nature. As an administrative body, COMELEC takes all the necessary
measures to promote free, orderly, and honest elections. It has exclusive charge over the
enforcement and administration of all laws and regulations relative to the conduct of
elections (Section 2, Art. X, the 1935 Constitution, as amended.) It supervises the election
machinery and decides questions involving the performance by election officers of their
official functions. The authority given to COMELEC to declare a failure of elections and to
call for the holding and continuation of the failed election falls under its administrative
function. The Court had given a wide latitude to the exercise of this jurisdiction as
COMELEC enforces the laws relative to the conduct of elections (Cauton v. COMELEC
(19 SCRA 911 [1967]; Aratuc v. COMELEC, (88 SCRA 251 [1979]; Omar v. COMELEC,
(102 SCRA 621 [1981]; Sanchez v. COMELEC, 114 SCRA 454 [1982]).
The scope of COMELECs jurisdiction to declare a failure of elections may be broad but it
has to be limited to the statutory grant of power. More so since elections have already been
held and winning candidates have been proclaimed.
In 1973, the revised Constitution added the judicial function of adjudicating certain

election contests to COMELEC jurisdiction (Sec. 2, Art. XII-C of the 1973 Constitution).
The procedures followed in a judicial contest are markedly different from those used by
COMELEC in its enforcement and administrative machinery. The two functions cannot be
mixed up in one indiscriminate proceeding. The administrative function should not
supersede or encroach on the exercise of judicial powers over election contests.
In election contests, COMELEC is no longer concerned with the enforcement of the laws or
the conduct of elections. Exercising its judicial functions, COMELEC ascertains who
between the contending candidates actually received the majority or plurality of the
legitimate or valid ballots (Gardiner v. Romulo, 26 Phil. 521 [1914]).
Under the present Constitution, COMELEC exercises original jurisdiction over all
contests, relating to the election, returns, and qualifications of all elective regional,
provincial, and city officials, and appellate jurisdiction over election contests involving
elective municipal and barangay officials (Sec. 2, Art. IV-C of the 1987 Constitution). The
question asked in election protests is who are the real choices of the people (De Mesa v.
Mencias, (18 SCRA 933 [1966]; Garcia v. Court of Appeals, (36 SCRA 582 [1970]). Thus,
allegations of fraud and irregularities in the casting and counting of ballots and canvass of
returns are examined with the end in view of ascertaining who among the contestants is the
legitimate winning candidate and not for the holding or continuation of failed or suspended
elections.
The distinction is important in the case at bar. Did private respondents correctly invoke the
enforcement powers of COMELEC when they filed their petitions to declare a failure of
elections? Or should they have resorted to a regular election contest where the alleged
frauds, irregularities, and terrorism may be examined to determine who between the
petitioners and the private respondents are the legitimate choices of the voters of
Maguindanao?
As contended by petitioners, the validity of the votes cast, the truth of alleged coercive or
fraudulent acts, and other questions as to who of the candidates actually and truly received
the majority of the votes these are for an election contest to determine.
In Sison v. COMELEC (334 SCRA 170 [1999]), we ruled that under the pertinent
provisions of the Omnibus Election Code, there are only three instances where a failure of
elections may be declared, namely:
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(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; or
(b) The election in any polling place had not 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 cause; 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.

As in Sison v. COMELEC a painstaking examination of the record of the instant case
would show that there was no failure of elections as provided under the Omnibus Election
Code.
Elections were actually held on May 14, 2001. There was no suspension of voting in any
polling place before the hour fixed for the closing of the voting. The records do not show
any failure to elect based on events after the voting and during the preparation,
transmission, and canvass of the returns. The actions COMELEC took in the instant case
go beyond the boundaries expressed in the Omnibus Election Code and the precedents set
by this Court.
In his Comment for the public respondent, the Solicitor General takes the side of private
respondents and recommends the dismissal of the instant petition. While urging respect for
COMELEC expertise and respondents privilege to choose remedies, the Solicitor General
makes a significant admission, thusly:
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As a final statement, the attention of the Honorable Court, however, is invited to the fact
that the COMELEC in its Comment dated November 22, 2001 in the related case of
Candao v. COMELEC, G.R. Nos. 148289-90 has already concluded that the May 14, 2001
election in the Province of Maguindanao, where petitioner Ampatuan and private
respondent Candao were the candidates for governor, was free and fair, thus:
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2. The records show that the voters of Maguindanao were able to cast their votes freely and
fairly. Their votes were counted correctly. The people have spoken. Their sovereign will has
to be obeyed.
3. Mere allegations of failure of elections cannot prevent the commission from issuing an
order lifting its previous Order to suspend the proclamation of winning candidates. This is
pursuant to its general power to issue orders, resolutions in regard to conduct of free,
orderly, and honest elections. The Commission cannot frustrate the will of the people by
delaying the proclamation of the winning candidates. Election to public office involves
public interest (Emphasis supplied).
(Comment For Public Respondent, p. 11 to 12).
If the elections were free and fair and the sovereign will had to be obeyed, COMELEC has
no lawful authority to conduct its random technical examination and on the basis of a
superficial examination of a limited number of ballots, declare a failure of elections.
In Borja v. COMELEC (260 SCRA 604 [1996]), we stated that the phrase "failure to elect"
must be literally interpreted to mean that nobody emerged as a winner. Petitioners cite the
dictionary meaning of failure as "a failing to occur, be performed, or be produced; nonperformance; or default. Under the literal or connotation or common understanding of the
word "failure," it appears that elections were actually held in all municipalities of

Maguindanao on May 14, 2001.

Our ruling in Typoco v. COMELEC (319 SCRA 498 [1999]) sustains the position of
petitioners. Respondents, however, argue that the Typoco doctrine is not applicable to the
facts of the present petition. In Typoco, this Court ruled that the basis for a declaration of a
failure of election must be such that it prevented or suspended the holding of an election
including the preparation and transmission of the election returns. Respondents contend
that in Typoco, COMELEC first ascertained the degree of the occurrence of the fraud and
its effect on the overall voting before dismissing the petition to declare a failure of elections
which allegedly was not done in this case.
The record shows that COMELECS initial reaction to the filing of the Candao petition for
a declaration of failure of elections was neither precipitate, hasty, nor ill-considered. As
earlier stated, two days after the May 23, 2001 filing of respondents petition before it,
COMELEC suspended the proclamation of the Ampatuan group. For 20 days, COMELEC
considered the Candao petition. Only on June 14, 2001 did COMELEC order the
proclamation of the winning candidates. The proclaimed candidates did not immediately
assume their respective offices. It was only when this court did not issue the prayed-for
TRO in G.R. Nos. 148289-90 did they assume their offices. They waited until June 30, 2001
to do so.
After the filing of the May 23 failure-of-election petition, COMELEC did not limit itself to
hearing and considering the submissions of the contending parties. It sought a report from
the Provincial Board of Canvassers (PBC). The June 11, 2001 report of the PBC is cited by
COMELEC in its June 14, 2001 Order when it directed the PBC "to proceed with the
proclamation of the mentioned winning candidates without delay, except that for
Congressman of the Second District."
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The PBC Report states inter alia:

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The provincial canvassing had been smooth and orderly and was witnessed by several
watchers and counsels representing the different candidates and political parties.
With respect to the petitions for exclusion of Certificate(s) of Canvass (COCs) on several
municipalities, the PBC is now finalizing its ruling with the general finding/observation
that almost all, if not all of the petitions, are either not grounds for a pre-proclamation
controversy, or that, although the grounds are proper, the supporting evidences do not
support the same. Apparently, the petitions for exclusion filed by both candidates Datu
Zacaria Candao and Datu Andal Ampatuan had to be dismissed by the PBC considering
that most of the issues raised by the parties are proper ground(s) for election protest. On
the other hand, questions on manifest errors in the face of the certificates of canvass had
been correction motu prop(r)io by the Board or upon manifestation by the Counsels.
Finding the provincial canvassing to be orderly and without any legal flaw, it is
recommended that the results of the canvassing be upheld after a final ruling on the
petitions for exclusion had been finally disposed of by the Provincial Board of

Canvassers . . .
COMELEC took notice, in its Order, of the serious allegations of respondents that there
was a total failure of elections in 9 municipalities due to "massive fraud committed prior to
the actual voting, widespread terrorism and violence prior to and during election day." It
also considered the allegation on sham and farcical elections" in 8 municipalities.
COMELEC looked into the degree of the alleged fraud and its overall effects before it
ordered proclamation.
COMELEC cited the case of Dagloc v. COMELEC (321 SCRA 273 [1999]), that "grounds
which are proper for electoral contests which are the same as grounds for the
declaration of failure of elections should not be allowed to delay the proclamation of
winners."
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It is quite obvious that in continuing with the failure-of-election proceedings after ordering
proclamation, COMELEC has included in its enforcement functions, questions which it
acknowledges are also appropriate for an election contest. COMELEC must adopt the
proper procedure. Should it act as an administrative enforcer of election laws or as a
judicial tribunal adjudicating an election contest?
In its June 14, 2001 Order, COMELEC decided that the controversy over the position of
Congressman for the Second District of Maguindanao is for the House of Representatives
Electoral Tribunal (HRET) to resolve. There is a contradiction in the COMELEC order.
The HRET is a judicial body. If COMELEC declares a failure of elections in the Second
District, neither the Congressman nor the provincial officials would have been elected. New
elections have to be called for all positions. There is all the more reason that since the case
of the Congressman is referred to a judicial tribunal, the same should also be done in the
cases of the Governor and other provincial officials. Why should sauce for the
Congressman not also be sauce for the Governor and other provincial officials.
Petitioners deplore the allegedly cavalier attitude of COMELEC towards this Court.
Petitioners cite the critical attitude of COMELEC at this Courts alleged failure to act as
fast as COMELEC wants it to act. Petitioners quote the portion of the COMELEC Order
that "it is high time that we implement our July 26, 2001 and August 28, 2001 orders," that
"a reasonable period has already lapsed and this Commission cannot indefinitely wait for
the developments in G.R. No. 149803" and that "proceedings in the cases before us should
not, therefore, be interrupted."
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The primary causes of delay in this case are the flip-flopping, indecisive, and contradictory
actions taken by COMELEC.
In Cabagnot v. COMELEC (260 SCRA 503 [1996]), we ruled that COMELEC has ample
powers but such powers must be exercised prudently and not whimsically or capriciously.
In the instant case, as in Cabagnot, COMELEC has flip-flopped in its actions. The
inconsistent actions taken tend to denigrate public trust in its objectivity and dependability
as the constitutionally mandated body to supervise the conduct of elections and adjudicate

election cases within its jurisdiction. The parties mention the tensions, violent disturbances
and other dangers to peace and order which could arise from the incidents of this case.
In Dagloc v. COMELEC, supra and Dimaporo v. COMELEC (186 SCRA 769 [1990]), we
emphasized that public policy frowns upon the occurrence of "grab-the-proclamation and
prolong-the protest" situations. However, I believe that the possibility of such an
occurrence, especially if it is debatable, slight, or unlikely, has to be balanced against the
clear and present dangers created by a lengthy period of non-proclamation of winners or,
worse, a provisional unseating of incumbent officials based on a perfunctory and random
examination of a limited number of ballots.
The Court must guard against proclamation grabbing on one hand and the equally
pernicious effects of unseating proclaimed winners on the basis of random technical
examinations or an improperly declared failure of elections.
Under the circumstances of the case at hand, the grounds raised for a declaration of failure
of elections are more correctly addressed in election contests. In Dimaporo v. COMELEC,
Ibid., we stated that "public interest requires that the positions for the filling of which the
elections are held should be filled as promptly as possible subject to the results of an
election protest that may ensue." In Abella v. Larrazabal (180 SCRA 509 [1989]), such
questions as those involving appreciation of ballots, conduct of campaign and balloting,
which require more deliberate and necessarily longer consideration, are left for
examination in the corresponding election protest. As early as 1926, this court stated in
Mandac v. Samonte (49 Phil. 284 [1926]), that courts should be slow in multifying elections,
exercising the power only when it is shown that the irregularities and fraud are so
numerous as to show an unmistakable design to defraud and defeat the true expression of
the will of the electorate.
In Sanchez v. COMELEC (153 SCRA 67 [1987]), we explained that the powers of
COMELEC are essentially executive and administrative in nature and the question of
whether or not there had been terrorism, vote-buying, and other irregularities in the
election should be ventilated in a regular election protest and that the COMELEC, acting
in a non-judicial capacity, is not the proper forum for deciding such matters.
Under the circumstances of the present case and based on applicable law, an election
protest is the appropriate remedy. Complex matters which necessarily entail the
presentation of conflicting testimony should not be resolved in random, technical, and
summary proceedings.
I, therefore, vote to reverse and set aside the questioned resolutions of the Commission on
Elections dated July 26, 2001 and July 28, 2001 and for SPA No. 01-323 before the
Commissions on Elections to be dismissed.
Sandoval-Gutierrez, J., dissenting.

EN BANC
[G.R. No. 194143 : December 06, 2011]
SALVADOR D. VIOLAGO, SR. VS. COMMISSION ON ELECTIONS AND JOAN V. ALARILLA
Sirs/Mesdames:
Please take notice that the Court en banc issued a Resolution dated DECEMBER 6, 2011, which
reads as follows:
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"G.R. No. 194143 (Salvador D. Violago, Sr. vs. Commission on Elections and Joan V. Alarilla).The Court Resolved to
(a) DENY WITH FINALITY the Motion for Reconsideration (of the Decision dated October 4, 2011)
dated October 25, 2011 filed by counsel for private respondent as the basic issues raised therein
have been passed upon by this Court and no substantial arguments were presented to warrant
the reversal of the questioned Decision;
(b) NOTE and GRANT the Letter dated October 17, 2011 filed by Dr. Saga D. Mabaning, Chief,
Electoral Contests Adjudication Department, Judicial Records Division, Commission on Elections
(COMELEC), requesting that the case folder of this case be returned to their office for
continuation of the protest proceedings pursuant to the Decision dated October 4, 2011;
(c) DIRECT the Judicial Records Office to IMMEDIATELY TRANSMIT the records of this case to
the COMELEC, through Dr. Mabaning; and
(d) NOTE the Letter dated October 12, 2011 filed by Betty B. Pizaa, Director IV, Electoral
Contests Adjudication Department, Judicial Records Division, COMELEC, acknowledging receipt of
the Notice of Judgment dated October 10, 2011 with copy of the Decision dated October 4,
2011."
Velasco, Jr., J., on official business.
Very truly yours,
(Sgd.) ENRIQUETA E. VIDAL
Clerk of Cour