MIDTERM EXAMINATION IN ELECTION LAW

CASE NO. 1: The petitioner, Alfredo Guieb and the private respondent, Manuel Asuncion,
were candidates for the position of Punong Barangay of Barangay Nilombot, Sta. Barbara,
Pangasinan, in the

barangay election

of 9 May 1994. After the

canvass of votes in the said barangay, the former was proclaimed as the winning candidate.

The latter then seasonably filed an

Trial Court (

election protest

with the Municipal

MTC) of Sta. Barbara, Pangasinan.

On 27 May 1994, the MTC, per Judge Lilia C. Espaol, rendered a decision confirming the
proclamation of the petitioner and dismissing the protest of the private respondent.
The private respondent

appealed

the decision to the Regional Trial Court

RTC) of Dagupan City. The case was assigned to Branch 42 thereof.

In its decision of 31 August 1994, the RTC, per respondent Judge Luis M. Fontanilla, reversed
the decision of the MTC, annulled the proclamation of the petitioner, and declared the
private respondent as the winning candidate with a plurality of four votes over the
petitioner.
After the petitioner's motion for reconsideration of the decision was denied on 25 November
1994, the private respondent immediately filed a motion for the issuance of a writ of
execution.
In its order of 8 December 1994, 5 the RTC declared that the motion should be properly filed
with the court of origin and that the decision of 31 August 1994 had already become final; it
then ordered the remand of the records of the case to the MTC of Sta. Barbara, Pangasinan,
for proper disposition.
On 12 December 1994, the petitioner filed with this Court a motion for extension of time to
file a petition for review on certiorari. On 29 December 1994, he sent by registered mail his
petition, which this Court received only on 25 January 1995. It turned out, however, that his
motion for extension of time to file a petition had already been denied on 4 January 1995 for
his failure to submit an affidavit of service of that motion. On 8 February 1995, he filed a
motion for the reconsideration of the denial.
Meanwhile, on 20 December 1994, the private respondent filed with the MTC a motion for
the issuance of a writ of execution. 6
In its order of 19 January 1995, the MTC deferred action on the said motion and required the
petitioner's counsel to inform the court of the status of his petition with this Court. For failure
of the petitioner's counsel to comply with the said order, the court issued an order on 7
February 1995 granting the issuance of a writ of execution. On 13 February 1995, however,
the court received the said counsel's Compliance dated 9 February 1995 9 wherein he
informed the court of the petitioner's motion to reconsider this Court's resolution denying
the motion for extension of time to file his petition.
In the resolution of 8 February 1995, this Court required the respondent to comment on the
petition.
1

On 16 February 1995, the petitioner filed with the MTC an Urgent Motion to Stay and/or
Suspend Execution. This motion was, however, denied on the ground that the writ, having
been hand-carried by the private respondent to the office of the sheriff, must have already
been implemented and, therefore, the motion to stay or suspend the same has become
moot and academic.
On 20 March 1995, the sheriff returned the writ of execution with the information that in the
presence of a barangay kagawad and barangay residents, he enforced the writ and
proclaimed the private respondent as Punong Barangay of Barangay Nilombot, Sta. Barbara,
Pangasinan.
QUESTION 1.On the basis of the above facts, who should be the rightful punong barangay of
Nilombot? Support your answer.

ANSWER NO. 1: Alfredo Guieb is the rightful punong barangay. The

the MTC

in favor of Guieb had become

final

decision in

, considering that his

opponent made the wrong appeal to the RTC .

( GUIEB vs. FONTANILLA, ET AL. (G.R. No. 118118 August 14, 1995)

Should have been filed before the COMELEC.

CASE NO. 2: Facts: In its

Minute Resolution

No. 96-3076 of 29

October 1996, the Commission on Elections (COMELEC) resolved to file an information for
violation of Section 261(i) of the Omnibus Election Code against private respondents
Diosdada Amor, a public school principal, and Esbel Chua and Ruben Magluyoan, both public
school teachers, for having engaged in

partisan political activities.

The COMELEC authorized its Regional Director in Region VIII to handle the prosecution of the
cases.
Forthwith, nine informations for violation of Section 261(i) of the Omnibus Election were filed
with Branch 23 of the Regional Trial Court of Alien, Northern Samar, and docketed therein as
follows:
a) Criminal Cases Nos. A-1439 and A-1442, against private respondents Diosdada
Amor, Esbel Chua, and Ruben Magluyoan.
b) Criminal Case No. A-1443, against private respondents Esbel Chua and Ruben
Magluyoan.
c) Criminal Cases Nos. A-1444 and A-1445, against private respondent Esbel Chua
only;
d) Criminal Cases Nos. A-1446 to A-1449, against private respondent Diosdada Amor
only.
In an Order 2 issued on 25 August 1997, respondent Judge Tomas B. Noynay, as presiding
judge of Branch 23, motu proprio ordered the records of the cases to be withdrawn and
directed

the

COMELEC

Law

Department

to

file

the

cases

with

the

appropriate
2

Municipal Trial Court

on the ground that pursuant to Section 32

of B.P. Blg. 129 as amended by R.A. No. 7691, the Regional Trial Court has no jurisdiction
over the cases since the maximum imposable penalty in each of the cases does not exceed
six years of imprisonment. Pertinent portions of the Order read as follows:
It is worth pointing out that all the accused are uniformly charged for [sic] Violation of Sec.
261(i) of the Omnibus Election Code, which under Sec. 264 of the same Code carries a
penalty of not less than one (1) year but not more than six (6) years of imprisonment and
not subject to Probation plus disqualification to hold public office or deprivation of the right
of suffrage.
Sec. 31 [sic] of the Judiciary Reorganization Act of 1980 (B.P.) Blg. 129 as Amended by Rep.
Act. 6691 [sic] (Expanded Jurisdiction) states: Sec. 32. Jurisdiction Metropolitan Trial Courts,
Municipal Circuit Trial Courts, Municipal Trial Courts in Criminal Cases Except [in] cases
falling within the exclusive original jurisdiction of the Regional Trial Courts and the
Sandiganbayan, the Municipal Trial Courts, Metropolitan Trial Courts and the Municipal Circuit
Trial Courts shall exercise:
(1) Exclusive original jurisdiction over all violations of city or municipal ordinance committed
within their respective territorial jurisdiction; and
(2) Exclusive original jurisdiction over all offenses punishable with an imprisonment of not
exceeding six (6) years irrespective of the amount or fine and regardless of other imposable
accessory and other penalties including the civil liability arising from such offenses or
predicated thereon, irrespective of time [sic], nature, value and amount thereof, Provided,
However, that in offenses including damages to property through criminal negligence, they
shall have exclusive original jurisdiction thereof.
In light of the foregoing, this Court has therefore, no jurisdiction over the cases filed
considering that the maximum penalty imposable did not exceed six (6) years.
The two motions for reconsideration separately filed by the COMELEC Regional Director of
Region VIII and by the COMELEC itself through its Legal Department having been denied by
the public respondent in the Order of 17 October 1997, the petitioner filed this special civil
action. It contends that public respondent "has erroneously misconstrued the provisions of
Rep. Act No. 7691 in arguing that the Municipal Trial Court has exclusive original jurisdiction
to try and decide election offenses" because pursuant to Section 268 of the Omnibus
Election Code and this Court's ruling in "Alberto [sic] vs. Judge Juan Lavilles, Jr.," Regional
Trial Courts have the exclusive original jurisdiction over election offenses.
QUESTION: Which Court, MTC or RTC has jurisdiction over the said offenses? Explain your
ANSWER.

ANSWER NO.2: The

RTC

has jurisdiction. We have explicitly ruled in Morales v. Court

of Appeals[i][7] that by virtue of the exception provided for in the opening sentence of Section
32, the

exclusive original jurisdiction of Metropolitan Trial Courts,

Municipal Trial Courts, and Municipal Circuit Trial Courts

cover

those criminal cases which by

does

not

specific provisions of
3

law
of

fall within the

exclusive original jurisdiction

Regional

of

the

Sandiganbayan, regardless of the penalty prescribed therefor.

Otherwise

stated,

even if

Trial

those

Courts

excepted

cases

are

and

punis

hable by

imprisonment of not exceeding six (6)

years (i.e., prision correccional, arresto mayor, or arresto menor), jurisdiction thereon
is retained by the Regional Trial Courts or the Sandiganbayan, as the case may be.
Among the examples cited in Morales as falling within the exception provided for in the
opening sentence of Section 32 are cases under (1) Section 20 of B.P. Blg. 129; (2) Article
360 of the Revised Penal Code, as amended; (3) the Decree on Intellectual Property; [ii][8] and
(4) the Dangerous Drugs Act of 1972,[iii][9] as amended.
Undoubtedly, pursuant to Section 268 of the Omnibus Election Code, election offenses also
fall within the exception.
As

we

stated

in

Morales,

jurisdiction

is

Constitution or by Congress.

conferred
Outside

by
the

the
cases

enumerated in Section 5(2) of Article VIII of the Constitution, Congress has the plenary
power to define, prescribe, and apportion the jurisdiction of various courts. Congress may
thus provide by law that a certain class of cases should be exclusively heard and determined
by one court. Such law would be a special law and must be construed as an exception to
the general law on jurisdiction of courts, namely, the Judiciary Act of 1948, as amended, and
the Judiciary Reorganization Act of 1980. R.A. No. 7691 can by no means be considered as a
special law on jurisdiction; it is merely an amendatory law intended to amend specific
sections of the Judiciary Reorganization Act of 1980. Hence, R.A. No. 7691 does not have the
effect of repealing laws vesting upon Regional Trial Courts or the Sandiganbayan exclusive
original jurisdiction to hear and decide the cases therein specified. That Congress never
intended that R.A. No. 7691 should repeal such special provisions is indubitably evident from
the fact that it did not touch at all the opening sentence of Section 32 of B.P. Blg. 129
providing for the exception.
It is obvious that respondent judge did not read at all the opening sentence of Section 32 of
B.P. Blg. 129, as amended. It is thus an opportune time, as any, to remind him, as well as
other judges, of his duty to be studious of the principles of law, [iv][10] to administer his office
with due regard to the integrity of the system of the law itself, [v][11] to be faithful to the law,
and to maintain professional competence. [vi][12] COMMISSION ON ELECTIONS, petitioner,vs.
HON. TOMAS B. NOYNAY, Acting Presiding Judge, Regional Trial Court, Branch 23, Allen,
Northern Samar, and DIOSDADA F. AMOR, ESBEL CHUA, and RUBEN MAGLUYOAN,
respondents. (G.R. No. 132365 July 9, 1998)

CASE NO. 3: Facts:

After

canvassed

the results of the May 8, 1995 elections were

in 73 precincts in the Municipality of Matnog, Province of

Sorsogon, petitioner Gerry B. Garay, a candidate for vice-mayor, was credited with 5,411
votes and private respondent Jaime Gata, Jr., his rival, 5,391 or a

twenty (20) votes

in favor of petitioner. The said results, however,

excluded the votes

where

margin of

from precinct 30-A of Barangay Culasi, Matnog,

armed men forcibly took the ballot

box

together with the election returns, other election papers, documents and/or

paraphernalia.
Because the votes in precinct 30-A would obviously affect the standing of the said

candidates,

the

proclaim

Municipal

Board

of

Canvassers

MBC)

did

not

the winner. Failing to convince said Board to proclaim him by virtue of

a certificate of votes issued by the Board of Election Inspectors (BEI) showing he garnered
116 votes against 68 votes for Garay in said precinct, respondent Gata brought the matter
to the respondent Commission. In his appeal, 3 respondent Gata included a copy of the Tally
Board, duly authenticated by the BEI, showing the same count as the Certificate of Votes:
that is, Gata 116 votes and Garay 68 votes. If these were added to the already canvassed
votes, Gata would win by a 28-vote margin.
In the meantime, while the said

appeal was pending,

COMELEC upon recommendation of Comm. Julio Desamito conducted a

election in precinct 30-A,

4 on the

respondent

special

ground of

failure of election due to the loss of the

ballot box and the election documents . Both petitioner
Garay and respondent Gata actively participated in the election which was held on June 7,
1995. Petitioner won handily in the said election and was thereafter proclaimed Vice-Mayor
of Matnog.
The Comelec First Division denied due course to the appeal because of appellant's (Gata)
failure "to furnish the Commission all pertinent documents necessary for the latter to rule on
the matter." Respondent Gata's motion for reconsideration of this Comelec action is still
pending before the Comelec First Division. Subsequently, the COMELEC En Banc issued a
5

Resolution promulgated on August 7, 1995 annulling the special election and directing the
MBC to reconvene and to include "in the canvass, the votes reflected on the Tally Board
submitted by the Board of Election Inspectors . . . ." As a result, respondent Gata was
declared winner. The Commissioner En Banc said that it was "convinced without taint of any
doubt that the votes shown in the tally board and certificate of votes reflect the true and
genuine will of the electorate. . . ."
QUESTION: 1.Discuss whether the COMELEC EN BANC is correct in its action.

ANSWER NO 3: Comelec en banc is

wrong

After judicious deliberation and consultation, we hold that

the Comelec En Banc

gravely abused its discretion when it decided to set aside

and annul the special election it had earlier called and
conducted

because of failure of election due to the forcible taking by armed men of

the ballot box together with the election returns and other election documents and
paraphernalia.
The respondent Commission's plea that it is

"convinced without taint of any

doubt that the votes shown in the tally board and certificate of
votes reflect the true and genuine will of the electorate"

weak and unpersuasive

of Votes and the
of the

Tally Board

were already

COMELEC before

special election.

because the

it

in

the

is

Certificate

possession

decided to call the

Note that private respondent Gata presented the

Certificate before the Municipal Board of Canvassers (MBC) during the canvassing. When
the latter rejected it, Gata appealed to the COMELEC from the said ruling, attaching to his
appeal a copy of the Tally Board. Nevertheless, the respondent Commission still decided to
hold the special election.
The Certificate of Votes presented by Gata may have been obtained by him pursuant to
Section 16 of R.A. No. 6646 (The Electoral Reform Law of 1987). [vii][7]
Thus, when the said Certificate was rejected by the MBC, it must have been because Gata
not only failed to comply with the procedure for its identification and offer as mandated in
Section 17 of R.A. No. 6646 which reads:
"SEC. 17. Certificate of Votes as Evidence. - The provisions of Sections 235 and 236 of Batas
Pambansa Blg. 881 notwithstanding, the certificate of votes shall be admissible in evidence

to

prove

falsification

tampering,
or

any

alteration,
anomaly
6

committed in the election returns

concerned, when duly authenticated by testimonial or documentary evidence presented to
the board of canvassers by at least two members of the board of election inspectors who
issued the certificate: Provided, That

of votes shall not

failure to present any certificate

be a bar to the presentation of other evidence to

impugn

the authenticity of the election returns ."

but also because a

canvass.

certificate

of votes can

never

be a

valid basis for

According to Section 17, a certificate of votes can only be "evidence to

prove tampering, alteration, falsification or any other anomaly committed in the election
returns concerned, when duly authenticated x x x." A certificate of votes does not constitute
sufficient evidence of the true and genuine results of the election; only election returns are,
pursuant to Sections 231, 233-236, and 238 of B.P. Blg. 881.

RETURNS,

not

cert.

of

votes,

constitute

ELECTION
sufficient

EVIDENCE of true and genuine election results

In like manner, neither is the tally board sufficient evidence of the real results of the
election.

Moreover, in the instant case, the fact that the tally board made its appearance

only when Gata attached it to his appeal makes it highly suspect and therefore unreliable.
Such appearance has not been convincingly explained even by Lyn M. Garil, chairman of the
BEI. Her affidavit that the Tally Board "dropped to the floor" as the armed men left the
polling place is hearsay. Section 217 of B.P. Blg. 881 (The Omnibus Election Code) requires
that the tally board or sheet shall, together with other election documents, be placed inside
the ballot box:
"SEC. 217. Delivery of the ballot boxes, keys and election supplies and documents. - Upon
the termination of the counting of votes, the board of election inspectors shall place in the
compartment for valid ballots, the envelopes for used ballots hereinbefore referred to, the
unused ballots, the tally board or sheet, a copy of the election returns, and the minutes of its
proceedings, and then shall lock the ballot box with three padlocks and such safety devices
as the Commission may prescribe. Immediately after the box is locked, the three keys of the
pad locks in three separate envelopes and shall be sealed and signed by all the members of
the board of election inspectors. The authorized representatives of the Commission shall
forthwith take delivery of said envelopes, signing a receipt therefore, and deliver without
delay one envelope to the provincial treasurer, another to the provincial fiscal and the other
to the provincial election supervisor.
The ballot box, all supplies of the board of election inspectors and all pertinent papers and
documents shall immediately be delivered by the board of election inspectors and the
watchers to the city or municipal treasurer who shall keep his office open all night on the
day of election if necessary for this purpose, and shall provide necessary facilities for said
delivery at the expense of the city or municipality. The book of voters shall be returned to
the election registrar who shall keep it under his custody. The treasurer and the election
registrars, as the case may be, shall on the day after the election require the members of
the board of election inspectors who failed to send the objects referred to herein to deliver
7

the same to him immediately and acknowledge receipt thereof in detail. "(Sec. 161, 1978
EC).

Since the ballot box, and necessarily, all

the

election

documents

contained

therein, had been forcibly taken and had

never been recovered, then the tally
board must have been likewise lost.
The fact that the Comelec decided to hold the special election shows that it was not
convinced of the authenticity and/or sufficiency of Gata's "certificate of votes" and "tally
board."
The special election was called pursuant to Section 6 of the Omnibus Election Code, which
requires notice and hearing before a special election may be held. There was no objection
from any candidate or political party to the holding of the special election (as none had
questioned it). In fact, the main protagonists - the petitioner and private respondent Gata even

actively

participated

in

the

said

election.

The

latter's

active

participation therein rendered his appeal

from the ruling of the MBC moot and placed
him in estoppel from relying again on his
"certificate of votes" and "tally board."
the First Division of the COMELEC should have simply
on the ground that it had become

dismissed

Therefore,

Gata's appeal

moot and academic, instead of

dismissing it on the merits because of Gata's failure to "furnish the Commission all pertinent
documents necessary for [the Division] to rule on the matter."
The COMELEC En Banc committed a more serious error, amounting to grave abuse of
discretion, when it reversed its First Division and gave due course to the appeal. Worse, it
annulled the special election had declared that Gata's "certificate of votes" and "tally board"
reflected the true and genuine will of the electorate." The latter declaration effectively
overturned its earlier decision to hold the special election which decision was obviously
based on its finding that the said "certificate of votes" and "tally board," then already before
it, were insufficient or inadequate to prove that there was failure of election. Moreover,

the decision to hold the special election and

long become
already

final;

been

held

such election having

and

the

winner
8

proclaimed, the COMELEC therefore had lost

its jurisdiction to revoke and set aside that
decision.

Additionally, it might be argued that in upholding the Certificate of Votes

and Tally Board as reflective of the will of the electorate, and annulling the special elections,
the Comelec also in effect declared without adequate basis, said special elections as not
reflective of such popular mandate.
On the other hand, if the position of the COMELEC were to be sustained, then we would in
effect be ruling that it acted without or in excess of jurisdiction or with grave abuse of
discretion when it called and conducted the special election, which was not at all raised as
an issue in this case. So too, we would permit the COMELEC to reverse and set aside a final
and already executed decision to hold the special election; and allow it to decide a
controversy - viz., the appeal from a ruling of the MBC - which had in fact and in law been
rendered moot and academic by the special election.
While it is true that the respondent Commission has the power to annul special elections or
declare a failure of special elections where it is shown that no voting had taken place or the
election therein resulted in a failure to elect; and the votes not cast would affect the results
of the.election,[ix][9] nonetheless, in the instant case, the June 17, 1995 electoral exercise was
not a failed election, as voting had taken place and the election did not result in a failure to
elect.

In other words, the people spoke freely and honestly in a contest voluntarily

participated in by both parties herein. Hence, the popular will as clearly expressed in the
votes cast and counted should prevail over dubious election documents of a previous failed
election in the same precinct. Since the validity and binding force of this special election
has not been put at issue and since for all it is worth, such electoral exercise, both in the
casting and canvassing of votes, was conducted regularly and peacefully, then this Court's
duty is to resolve the issue "in a manner that would give effect to the will of the majority" as
expressed in such special election, for it is merely sound public policy to cause elective
offices to be filled by those who are the unquestioned choice of the majority. [x][ (GERRY B.
GARAY vs. COMMISSION ON ELECTIONS, ET AL. G.R. No. 121331 August 28, 1996)

CASE NO. 4:FACTS: Petitioner SULTAN MOHAMAD L. MITMUG and private respondent DATU
GAMBAI DAGALANGIT were among the candidates for the

mayoralty

position of

Lumba-Bayabao during the 11 may 1992 election. There were sixty-seven (67) precincts in
the

municipality.

As was heretofore stated, voter turnout was rather low, particularly in forty-nine (49)
precincts where the average voter turnout was 22.26%, i.e., only 2,330 out of 9,830
registered voters therein cast their votes. Five (5) of these precincts did not conduct actual
voting at all.
Consequently, COMELEC ordered the holding of a special election on 30 May 1992 in the five
(5) precincts which failed to function during election day. On 30 July 1992 another special
election was held for a sixth precinct.
In the interim, petitioner filed a petition seeking the annulment of the special election
9

conducted on 30 May 1992 alleging various irregularities such as the alteration, tampering
and substitution of ballots. But on 13 July 1992, COMELEC considered the petition moot since
the votes in the subject precincts were already counted.
Other petitions seeking the declaration of failure of election in some or all precincts of
Lumba-Bayabao were also filed with COMELEC by other mayoralty candidates, to wit:
1.

SPA No. 92-324: On 6 June 1992, private respondent Datu Gamba Dagalangit filed

an urgent petition praying for the holding of a special election in Precinct No. 22-A alleging
therein that when the ballot box was opened, ballots were already torn to pieces. On 14 July
1992, the petition was granted and a special election for Precinct No. 22-A was set for 25
July 1992. 4
2.

SPC No. 92-336: On 16 June 19992, Datu Elias Abdusalam, another mayoralty

candidate, filed a petition to declare failure of election in twenty-nine (29) more precincts as
a result of alleged tampering of ballots 5 and clustering of precincts. 6 On 16 July 1992, the
petition was dismissed. COMELEC ruled that there must be a situation where there is
absolute inability to vote before a failure of election can be declared. 7 Since voting was
actually conducted in the contested precincts, there was no basis for the petition.
3.

SPA No 92-368: On 20 June 1992, private respondent filed another petition, this

time seeking to exclude from the counting the ballots cast in six (6) precincts on the ground
that the integrity of the ballot boxes therein was violated. 8 Again, on 14 July 1992,
COMELEC considered the petition moot, as the issue raised therein was related to that of
SPA No. 92-311 which on 9 July 1992 was already set aside as moot. 9
4.

SPA No. 92-347: On 1 July 1992, Datu Bagato Khalid Lonta, a fourth mayoralty

candidate, filed a petition which in the main sought the declaration of failure of election in all
sixty-seven (67) precincts of Lumba-Bayabao, Lanao del Sur, on the ground of massive
disenfranchisement of voters. 10 On 9 July 1992, COMELEC dismissed the petition, ruling
that the allegations therein did not support a case of failure of election.
On 8 July 1992, petitioner filed a motion to intervene in these four (4) petitions. 12 But
COMELEC treated the same as a motion for reconsideration and promptly denied it
considering that under the COMELEC Rules of Procedure such motion was a prohibited
pleading. 13
Thereafter, a new board of Election Inspectors was formed to conduct the special election
set for 25 July 1992. Petitioner impugned the creation of this Board. Nevertheless, on 30 July
1992, the new Board convened and began the canvassing of votes. Finally, on 31 July 1992,
private respondent was proclaimed the duly elected Mayor of Lumba-Bayabao, Lanao del
Sur.
On 3 August 1992, petitioner instituted the instant proceedings seeking the declaration of
failure of election in forty-nine (49) precincts where less than a quarter of the electorate
were able to cast their votes. He also prayed for the issuance of a temporary restraining
order to enjoin private respondent from assuming office.
On 10 August 1992, petitioner lodged an election protest with the Regional trial Court of
Lanao del Sur disputing the result not only of some but all the precincts of Lumba-Bayabao,
del Sur.
Respondents, on the other hand, assert that with the filing of an election protest, petitioner
is already deemed to have abandoned the instant petition.
10

It may be noted that when petitioner filed his election protest with the Regional Trial Court of
Lanao del Sur, he informed the trial court of the pendency of these proceedings. Paragraph 3
of his protest states "[T]hat on August 3, 1992, your protestant filed a Petition for Certiorari
with the Supreme Court . . . docketed as G.R. No. 106270 assailing the validity of the
proclamation of the herein protestee. . . ." Evidently, petitioner did not intend to abandon
his recourse with this Court. On the contrary, he intended to pursue it. Where only an
election protest ex abundante ad cautela is filed, the Court retains jurisdiction to hear the
petition seeking to annul an election.
QUESTION:1. Whether respondent COMELEC acted with grave abuse of discretion amounting
to lack of jurisdiction in denying motu proprio and without due notice and hearing the
petitions seeking to declare a failure of election in some or all of the precincts in LumbaBayabao, Lanao del Sur. After all, petitioner argues, he has meritorious grounds in support
thereto, viz., the massive disenfranchisement of voters due to alleged terrorism and
unlawful clustering of precincts, which COMELEC should have at least heard before rendering
its judgment.
2. Is a low turn out of voters in an election a ground for a failure of
election?

Answer

NO

. 4: The main issue is whether respondent COMELEC acted with grave abuse

of discretion amounting to lack of jurisdiction in denying motu proprio and without due
notice and hearing the petitions seeking to declare a failure of election in some or all of the
precincts in Lumba-Bayabao, Lanao del Sur. After all, petitioner argues, he has meritorious
grounds in support thereto, viz., the massive disenfranchisement of voters due to alleged
terrorism and unlawful clustering of precincts, which COMELEC should have at least heard
before rendering its judgment.

Incidentally, a petition to annul an election is

not

a pre-proclamation

controversy. Consequently, the proclamation of a winning candidate together with his

subsequent assumption of office is not an impediment to the prosecution of the case to its
logical conclusion. 17
Under the COMELEC Rules of Procedure,

within twenty-four (24)

hours from the filing of a verified petition to

declare a failure to elect, notices to all interested
parties indicating therein the date of hearing should be
served through the fastest means available. 18 The
hearing of the case will also be summary in nature. 19
Based on the foregoing, the

clear intent of the law

petition

must

of

this

nature

be

acted

upon

with

dispatch

only

is that a

after
11

hearing

thereon shall have been conducted. Since COMELEC denied the

other petitions 20 which sought to include forty-three (43) more precincts in a special
election

without

conducting any

indeed might have been

hearing, it would appear then that there

grave abuse of discretion

in

denying the petitions.

However, a closer examination of the COMELEC Rules of Procedure, particularly Sec. 2, Rule
26, thereof which was lifted from Sec. 6, B.P. 881, otherwise known as the Omnibus Election
Code of the Philippines, indicates otherwise. It reads

Sec.

2.

Failure

of

violence,

election.

If,

on

account

terrorism,

analogous causes

of

force majeure,

fraud

or

other

the election in any precinct has not been held on

the date fixed, or had been suspended before the hour fixed by law for the closing of the
voting, or after the voting and during the preparation and the transmission of the election
returns or in the custody of canvass thereof, such election results in a failure to elect, and in
any of such cases the failure or suspension of election would affect the result of the election,
the Commission shall, on the basis of a verified petition by any interested party and after
due notice and hearing, call for the holding or continuation of the election not held,
suspended or which resulted in a failure to elect on a date reasonably close to the date of
the election not held, suspended or which resulted in a failure to elect but not later than
thirty (30) days after the cessation of the cause of such postponement or suspension of the
election or failure to elect.

Before

COMELEC

declare
first,

can

act

on a

verified petition

failure of election,

no voting

seeking to

two (2) conditions must concur:

has taken place in the

precinct or precincts on the date fixed by law or,

even if there was voting, the election nevertheless
results in failure to elect; and, second, the

votes

not cast would affect the result of

the election. 21
In the case before us, it is indubitable that the votes not cast will definitely affect the
outcome of the election. But, the first requisite is missing, i.e., that no actual voting took
12

place, or even if there is, the results thereon will be tantamount to a failure to elect. Since
actual voting and election by the registered voters in the questioned precincts have taken
place, the results thereof cannot be disregarded and excluded. 22 COMELEC therefore did
not commit any abuse of discretion, much less grave, in denying the petitions outright.
There was no basis for the petitions since the facts alleged therein did not constitute
sufficient grounds to warrant the relief sought. For, the language of the law expressly
requires the concurrence of these conditions to justify the calling of a special election. 23

Indeed,

the

fact

that

verified petition

automatically mean
held

that a

hearing

is

on the case

before COMELEC will act on it. The verified petition must still

face that the

elect

conditions
are

to

filed

does

not

will be

show

on its

declare a failure to

present. In the absence thereof, the petition must be denied

outright.
Considering that there is no concurrence of the two (2) conditions in the petitions seeking to
declare failure of election in forty-three (43) more, precincts, there is no more need to
receive evidence on alleged election irregularities.
Instead, the question of whether there have been terrorism and other irregularities is better
ventilated in an election contest. These irregularities may not as a rule be invoked to declare
a failure of election and to disenfranchise the electorate through the misdeeds of a relative
few. 24 Otherwise, elections will never be carried out with the resultant disenfranchisement
of innocent voters as losers will always cry fraud and terrorism.
There can be failure of election in a political unit

majority has been

only if the will of the

defiled

be ascertained

and

cannot

. But, if it can be determined, it must be accorded

respect. After all, there is no provision in our election laws which requires that a majority of
registered voters must cast their votes. All the law requires is that a winning candidate must
be elected by a plurality of valid votes, regardless of the actual number of ballots cast. 25
Thus, even if less than 25% of the electorate in the questioned precincts cast their votes, the
same must still be respected. There is prima facie showing that private respondent was
elected through a plurality of valid votes of a valid constituency. MOHAMAD L. MITMUG vs.
COMMISSION ON ELECTIONS, ET AL. (G.R. No. 106270-73 February 10, 1994)

CASE NO. 5: FACTS: RICARDO "BOY" CANICOSA and SEVERINO LAJARA were candidates for
mayor in Calamba, Laguna, during the 8 May 1995 elections. After obtaining a majority of
some 24,000 votes Lajara was proclaimed winner by the Municipal Board of Canvassers. On
15 May 1995 Canicosa filed with the Commission on Elections (COMELEC) a Petition to
13

Declare

Failure of Election

and to Declare

Null and

Void the Canvass and Proclamation

because

of

widespread

alleged

anomalies

frauds

and

in casting and counting of votes, preparation of election returns,

violence, threats, intimidation, vote buying, unregistered voters voting, and delay in the
delivery of election documents and paraphernalia from the precincts to the Office of the
Municipal Treasurer. Canicosa particularly averred that: (a) the names of the registered
voters did not appear in the list of voters in their precincts; (b) more than one-half of the
legitimate registered voters were not able to vote with strangers voting in their stead; (c) he
was credited with less votes than he actually received; (d) control data of the election
returns was not filed up in some precincts; (e) ballot boxes brought to the Office of the
Municipal Treasurer were unsecured, i.e., without padlocks nor self-locking metal seals; and,
(f) there was delay in the delivery of election returns. But the COMELEC en banc dismissed
the petition on the ground that the allegations therein did not justify a declaration of failure
of election.
QUESTIONS:
1.Canicosa bewails that the names of the registered voters in the various precincts did not
appear in their respective lists of voters. What is the proper remedy on this aspect?
2.Canicosa also avers that more than one-half (1/2) of the legitimate registered voters were
not able to vote, instead, strangers voted in their behalf. Is this a ground for failure of
election?
3.Canicosa complains that the election returns were delivered late and the ballot boxes
brought to the Office of the Municipal Treasurer unsecured, i.e., without padlocks nor selflocking metal seals. Is this also a ground for failure of election?
4.Canicosa finally insists that it was error on the part of COMELEC sitting en banc to rule on
his petition. He maintains that his petition should have first been heard by a division of
COMELEC and later by the COMELEC en banc upon motion for reconsideration, pursuant to
Sec. 3, Art. IX-C, of the Constitution. Is his contention correct?
5.In totality, was there a failure of election, in the case at bar?

ANSWER

NO

5:

warrant

Indeed,
a

the

grounds

declaration

of

cited

by

failure

Canicosa
of

do

not

election.

Section 6 of BP Blg. 881, otherwise known as the Omnibus Election Code, reads:
Sec. 6. Failure of election. -

If, on account of force majeure, violence, terrorism, fraud, or

other analogous causes the election in any polling place has not been held on the date fixed,
or had been suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the result of the election, the
Commission shall, on the basis of a verified petition by any interested party and after due
14

notice and hearing, call for the holding or continuation of the election not held, suspended or
which resulted in a failure to elect on a date reasonably close to the date of the election not
held, suspended or which resulted in a failure to elect but not later than thirty days after the
cessation of the cause of such postponement or suspension of the election or failure to elect.
Clearly, there are only three (3) instances where a failure of election may be declared,
namely:

) the election in any polling place has

(a

not
of force majeure,

been held on the date fixed

on account

violence, terrorism, fraud, or other analogous causes; (b)

the

election in any polling place had been suspended

before the hour fixed by law for the closing of the
voting

on account of force majeure, violence, terrorism, fraud, or other analogous

causes; or (c)

after the voting and during the preparation and

transmission of the election returns or in the custody or

canvass thereof, such election results in a failure to
elect

on account of force majeure,

violence, terrorism, fraud, or other analogous

causes.
None of the grounds invoked by Canicosa falls under any of those enumerated.
Canicosa bewails that the names of the registered voters in the various precincts did not
appear in their respective lists of voters. But this is not a ground to declare a failure of
election. The filing of a petition for declaration of failure of election therefore is not the
proper remedy. The day following the last day for registration of voters, the poll clerk
delivers a certified list of voters to the election registrar, election supervisor and the
COMELEC, copies of which are open to public inspection. On the same day, the poll clerk
posts a copy of the list of registered voters in each polling place. Each member of the board
of election inspectors retains a copy of the list which may be inspected by the public in their
residence or in their office during office hours.[xi][2]
Fifteen (15) days before the regular elections on 8 May 1995 the final list of voters was
posted in each precinct pursuant to Sec. 148 of RA No. 7166. Based on the lists thus posted
Canicosa

could

have

filed

registered voters

petition for inclusion of

with the

regular courts.

of inclusion or exclusion from the list of voters involves the

The

question

right to
15

vote
rule

[xii][3]

which is

not within

the power and authority of

upon. The determination of whether one has the

justiciable issue
regular courts.

properly

COMELEC to

right to vote

is a

cognizable by our

Section 138, Art. XII, of the Omnibus Election Code states:

Sec. 138. Jurisdiction in inclusion and exclusion cases. - The municipal and metropolitan
trial courts shall have original and exclusive jurisdiction over all matters of inclusion and
exclusion of voters from the list in their respective municipalities or cities. Decisions of the
municipal or metropolitan trial courts may be appealed directly by the aggrieved party to
the proper regional trial court within five days from receipts of notice thereof, otherwise said
decision of the municipal or metropolitan trial court shall decide the appeal within ten days
from the time the appeal was received and its decision shall be immediately final and
executory. No motion for reconsideration shall be entertained by the courts (Sec. 37, PD
1896, as amended).

On the other hand, Canicosa could have also filed with the COMELEC a

complaint seeking the

verified

annulment of

the book of voters

pursuant to Sec. 10, of RA No.

7166:
Sec. 10. Annulment of the List of Voters. - Any book of voters the preparation of which has
been affected with fraud, bribery, forgery, impersonation, intimidation, force or any other
similar irregularity or which is statistically improbable may be annulled after due notice and
hearing by the Commission motu propio

or after the filing of a verified complaint:

Provided, that no order, ruling or decision annulling a book of voters shall be executed
within sixty (60) days before an election.
If indeed the situation herein described was common in almost all of the 557 precincts as
alleged by Canicosa,[xiii][4] then it was more expedient on his part to avail of the remedies
provided by law in order to maintain the integrity of the election. Since Canicosa failed to
resort to any of the above options, the permanent list of voters as finally corrected before
the election remains conclusive on the question as to who had the right to vote in that
election, although not in subsequent elections.[xiv][5]
Canicosa also avers that more than one-half (1/2) of the legitimate registered voters were
not able to vote, instead,

this

is

strangers voted in their behalf.

Again,

not a ground which warrants a

declaration

of

failure

of

election.
16

Canicosa

was

watcher

in

watcher

is

allowed
every

empowered

by

any illegal voter

law

to

appoint

precinct

The

to challenge

. Thus, Secs. 199 and 202, Art. XVII, of the

Omnibus Election Code, provide:

Sec. 199. Challenge of illegal voters. - (a) Any voter, or watcher may challenge any person
offering to vote for not being registered, for using the name of another or suffering from
existing disqualification. In such case, the board of election inspectors shall satisfy itself as
to whether or not the ground for the challenge is true by requiring proof of registration or
identity of the voter x x x x
Sec. 202. Record of challenges and oaths. - The poll clerk shall keep a prescribed record of
challenges and oaths taken in connection therewith and the resolution of the board of
election inspectors in each case and, upon the termination of the voting, shall certify that it
contains all the challenges made x x x x
The claim of Canicosa that he was credited with less votes than he actually received and
that the control data of the election returns was not filled up should have been raised in the
first instance before the board of election inspectors or board of canvassers. Section 179,
Art. XV, of the Omnibus Election Code clearly provides for the rights and duties of watchers
Sec. 179. Rights and duties of watchers. - x x x x The watchers x x x shall have the right to
witness and inform themselves of the proceedings of the board of election inspectors x x x
to file a protest against any irregularity or violation of law which they believe may have been
committed by the board of election inspectors or by any of its members or by any persons,
to obtain from the board of election inspectors a certificate as to the filing of such protest
and/or of the resolution thereon x x x and to be furnished with a certificate of the number of
votes in words and figures cast for each candidate, duly signed and thumbmarked by the
chairman and all the members of the board of election inspectors x x x x
To safeguard and maintain the sanctity of election returns, Sec. 212, Art. XVIII, of the
Omnibus Election Code states Sec. 212. Election returns. - x x x x Immediately upon the accomplishment of the election
returns, each copy thereof shall be sealed in the presence of the watchers and the public,
and placed in the proper envelope, which shall likewise be sealed and distributed as herein
provided.
Furthermore, it is provided in Sec. 215 of the Omnibus Election Code that Sec. 215. Board of election inspectors to issue a certificate of the number of votes polled
by the candidates for an office to the watchers. - After the announcement of the results of
the election and before leaving the polling place, it shall be the duty of the board of election
inspectors to issue a certificate of the number of votes received by a candidate upon request
of the watchers. All members of the board of election inspectors shall sign the certificate.
Supplementing the preceding provisions, Secs. 16 and 17 of RA No. 6646 also require Sec. 16. Certification of votes. - After the counting of the votes cast in the precinct and
17

announcement of the results of the election, and before leaving the polling place, the board
of election inspectors shall issue a certificate of votes upon request of the duly accredited
watchers x x x x
Sec. 17. Certificate of Votes as Evidence. - The provisions of Secs. 235 and 236 of Batas
Pambansa Blg. 881 notwithstanding, the certificate of votes shall be admissible in evidence
to prove tampering, alteration, falsification or anomaly committed in the election returns
concerned x x x x
From the foregoing provisions, it is clear that in case of inconsistency as to the number of
votes written in the election returns and the certificate of votes, a petition for correction of
election returns must immediately be filed with COMELEC by all or a majority of the
members of the board of election inspectors or any candidate affected by the error or
mistake. In order to make out a case for correction of election returns, there must be an
error and at least a majority of the members of the board of election inspectors agrees that
such error existed. Canicosa never mentioned that he petitioned for the correction of the
election returns before the COMELEC

Canicosa complains that the election

returns were delivered

late and the ballot boxes brought to the

Office of the Municipal Treasurer unsecured ,
i.e., without padlocks nor self-locking metal seals.

These bare allegations

impel us to declare failure of election.

cannot

Assuming that the

election returns were delivered late, we still cannot see why we should declare a failure to

elect.

The late deliveries did

in Calamba into a

not convert the election held

mockery or farce

to make us conclude

that there was indeed a failure of election.

In fine, the grounds cited by Canicosa in his petition do not fall under any of the instances
enumerated in Sec. 6 of the
Elections

[xv][6]

Omnibus Election Code.

In Mitmug v. Commission on

we ruled that before COMELEC can act on a verified petition seeking to

declare a failure of election, at least two (2) conditions must concur: (a) no voting has taken
place in the precincts on the date fixed by law, or even if there was voting, the election
nevertheless resulted in failure to elect; and, (b) the votes that were not cast would affect
the result of the election. From the face of the instant petition, it is readily apparent than
an election took place and that it did not result in a failure to elect. [xvi][7]
Canicosa finally insists that it was error on the part of COMELEC sitting en banc

to rule on

his petition. He maintains that his petition should have first been heard by a division of
COMELEC and later by the COMELEC en banc upon motion for reconsideration, pursuant to
Sec. 3, Art. IX-C, of the Constitution.[xvii][8]
But this provision applies only when the COMELEC acts in the exercise of its adjudicatory or
quasi-judicial functions and not when it merely exercises purely administrative functions.

To

reiterate, the grounds cited by Canicosa in his petition are that: (a) the names of the
18

registered voters did not appear in the list of voters in their respective precincts; (b) more
than one-half of the legitimate registered voters were not able to vote with strangers voting
in their stead; (c) he was credited with less votes than he actually received; (d) the control
data of the election returns was not filled up in some precincts; (e) ballot boxes brought to
the Office of the Municipal Treasurer were unsecured, i. e., without padlocks nor self-locking
metal seals; and, (f) there was delay in the delivery of election returns.
Clearly, all these matters require the exercise by the COMELEC of its administrative
functions. Section 2, Art. IX-C, of the 1987 Constitution grants extensive administrative
powers to the COMELEC with regard to the enforcement and administration of all laws and
regulations relative to the conduct of elections. Likewise, Sec. 52 of BP Blg. 881, otherwise
known as the Omnibus Election Code, states:
Sec. 52. Powers and functions of the Commission on Elections. -

In addition to the powers

and functions conferred upon it by the Constitution, the Commission shall have exclusive
charge of the enforcement and administration of all laws relative to the conduct of elections
for the purpose of ensuring free, orderly and honest elections x x x x
Quite obviously, it is only in the exercise of its adjudicatory or quasi-judicial powers that the
COMELEC is mandated to hear and decide cases first by Division and then, upon motion for
reconsideration, by the COMELEC en banc.

This is when it is jurisdictional. In the instant

case, as aforestated, the issues presented demand only the exercise by the COMELEC of its
administrative functions.
The COMELEC exercises direct and immediate supervision and control over national and
local officials or employees, including members of any national or local law enforcement
agency and instrumentality of the government required by law to perform duties relative to
the conduct of elections. Its power of direct supervision and control includes the power to
review, modify or set aside any act of such national and local officials.

[xviii][9]

It exercises

immediate supervision and control over the members of the boards of election inspectors
and canvassers. Its statutory power of supervision and control includes the power to revise,
reverse or set aside the action of the boards, as well as to do what the boards should have
done, even if questions relative thereto have not been elevated to it by an aggrieved
party, for such power includes the authority to initiate motu proprio or by itself such
steps or actions as may be required pursuant to law. [xix][10]
Specifically, Canicosa alleged that he was credited with less votes than he actually
received. But he did not raise any objection before the Municipal Board of Canvassers;
instead, he went directly to the COMELEC.

He now claims, after the COMELEC en banc

dismissed his petition, that it was error on the part of COMELEC to rule on his petition while
sitting en banc.
We have already disposed of this issue in Castromayor v. Commission on Elections

[xx][11]

thus

should be pinpointed out, in this connection, that what is involved here is a simple problem
of arithmetic. The Statement of Votes is merely a tabulation per precinct of the votes
obtained by the candidates as reflected in the election returns. In making the correction in
computation, the MBC will be acting in an administrative capacity, under the control and
supervision of the COMELEC. Hence, any question pertaining to the proceedings of the MBC
may be raised directly to the COMELEC en banc in the exercise of its constitutional function
to decide questions affecting elections.
Moreover, it is expressly provided in Rule 27, Sec. 7, of the Comelec Rules of Procedure that

19

any

party dissatisfied with the ruling of the board of

canvassers shall have a right to appeal to the

COMELEC en banc:
Sec. 7. Correction of Errors in Tabulation or Tallying of Results by the Board of Canvassers. (a) Where it is clearly shown before proclamation that manifest errors were committed in the
tabulation or tallying or election returns, or certificates of canvass, during the canvassing as
where (1) a copy of the election returns of one precinct or two or more copies of a certificate
of canvass were tabulated more than once, (2) two copies of the election returns or
certificate of canvass were tabulated separately, (3) there was a mistake in the adding or
copying of the figures into the certificate of canvass or into the statement of votes by
precinct, or (4) so-called election returns from non-existent precincts were included in the
canvass, the board may motu proprio, or upon verified petition by any candidate, political
party, organization or coalition of political parties, after due notice and hearing, correct
the errors committed x x x x (h) The appeal shall be heard and decided by the Commission
en banc.
In Tatlonghari v. Commission on Elections

[xxi][12]

it was made to appear in the Certificate of

Canvass of Votes and Proclamation of the Winning Candidates that respondent therein
received 4,951 votes or more than what he actually obtained. In resolving the case we ruled
that the

correction of the manifest mistake

calls for a mere

in mathematical addition

clerical task of the board of

canvassers.
administrative.

The

remedy

invoked

In Feliciano v. Lugay

[xxii][13]

was

purely

we categorized the issue

concerning registration of voters, which Canicosa cited as a ground in his petition for
declaration of failure of election, as an administrative question. Likewise, questions as to
whether elections have been held or whether certain returns were falsified or manufactured
and therefore should be excluded from the canvass do not involve the right to vote.

Such questions are properly within the

administrative jurisdiction of COMELEC,
[xxiii][14]

hence, may be acted upon directly

by the COMELEC en banc without having

to pass through any of its divisions.
CASE No. 6: Facts: "It appears that Cong. Pedro P. Romualdo and Gov. Antonio R. Gallardo
were both candidates in the May 11, 1992 elections for the positions of congressmen and
20

governor, respectively, of Camiguin. They belonged to opposing political factions and were
in a bitter electoral battle.
"On April 10, 1992 or about a month before the elections, Cong. Romualdo filed a petition
docketed as Special Civil Action No. 465 before the Regional Trial Court of Camiguin (Br. 28)
presided over by respondent Judge Tabamo against Gov. Gallardo, the Provincial Treasurer,
the Provincial Auditor, the Provincial Engineer, and the Provincial Budget Officer as
respondents. In this petition Cong. Romualdo sought to

restrain

the

undertaking
public

respondents

and/or

works

prohibit and
from

pursuing

projects

certain

and

from

disbursing, releasing, and/or spending

public funds for said projects,
among other reasons, said projects were undertaken in

allegedly because,

violation of the

45-day ban on public works imposed by

the Omnibus Election Code (B.P. Blg.
881); that the public works projects were commenced without the approved detailed
engineering plans and specification and corresponding program of works; that the
expenditures of the 20% development fund for projects other than for maintenance violated
the Local Government Code; that locally funded projects had been pursued without the
provincial budget having been first approved, and reviewed by the Department of Budget
and Management; and that the illegal prosecution of the said public works projects requiring
massive outlay or public funds during the election period was done maliciously and
intentionally to corrupt voters and induce them to support the candidacy of Gov. Gallardo
and his ticket in the May 11, 1992 elections.
"In the afternoon of the same day that the petition was filed, Judge Tabamo issued a
temporary restraining order as prayed for by the petitioner Cong. Romualdo, as follows:
'It appearing from the verified petition in this case that great and irreparable damage and/or
injury shall be caused to the petitioner as candidate and taxpayer, such damage or 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 project 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 the said projects.'
"In the same Order of April 10, 1993 the judge gave the respondents ten (10) days from
receipt of a copy of the petition to answer the same, and set the prayer for the issuance of a
21

preliminary injunction for hearing on April 24, 1992 at 8:30 A.M.

"Gov. Gallardo testified that when he received a copy of the restraining order and reviewed
the petition filed, being a lawyer, he at once saw that the same was not within the
jurisdiction of the Regional Trial Court. He said that the elections were nearing and all their
projects were suspended, the laborers could not get their salaries, and the judge had set the
hearing of the injunction on April 24, 1992 or very close to the elections of May 11, 1992.
Believing that he could not get justice from the respondent court, he decided to go to the
Supreme Court where he filed a petition for certiorari (docketed as G.R. No. L-104848)
questioning the issuance of the temporary restraining order and the jurisdiction of the court
over Special Civil Action No. 465.
QUESTION: 1. From your point of view, was the Judge correct in taking cognizance of the
case and was his act of issuing the Temporary Restraining Order correct under the
circumstances? Or would you agree with Gov. Gallardo that the RTC has no jurisdiction over
the case? Reason out your answer.

Answer NO 6:The

Judge

was

wrong

. 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

of paragraphs (a), (b), (v) and (w), Section 261 of the

violations

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

exclusive

charge

administration
elections

of
of

all

the
laws

to

have

enforcement
relative

to

the

conduct

and
of

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 non22

feasance, malfeasance or misfeasance in connection with the performance of their duties

relative to the conduct of elections. 20
Under

the

present

law,

appointment
creation
office,

or

or filling up of

however,

except

hiring

of

in

case

of

urgent

need,

new employees

new positions

in any

the

or

the

government

agency or instrumentality, whether national or local, including government-

owned or controlled corporations, is

banned

during the period of forty-five (

days before a regular election

days before a special election

the prior authority

and

if made

45)

thirty (30)

without

of the Commission on Elections. A

violation thereof constitutes an election offense. 21 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 any other disciplinary action, for
violation or disregard of, or disobedience to its directive, order, or decision." 22
Moreover, the present Constitution also invests the Commission with the power to
"investigate and, where appropriate, prosecute cases of violations of election laws, including
acts or omissions constituting election frauds, offenses, and malpractices." 23
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, the Zaldivar 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:

The question may be asked:

Why should not the judiciary be co-

participant in this particular instance

its

authority

was

Constitution

invoked?
which

The

obvious

empowers

answer
the

is

of enforcing the Election Code as

the

literal

language

Commission

of

the

on

Elections to "have exclusive charge

of

the

enforcement

and
23

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 law." 24 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 Acting Chief Justice J.B.L. Reyes in Albano v.
Arranz, 25 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

partisanship

would

suspicion
fall

on their

as

to

alleged

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, there should be no
hesitancy in declining to act. 26
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
24

Trial Court
violations

of

the

under the election laws is limited to

Omnibus

Election

Code.

The

criminal actions

Constitution

itself

grants

to

for
it

exclusive original jurisdiction over contests

involving elective municipal officials . 27 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 done motu 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 Commission. 28 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

Fiscal." 29 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

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
25

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.
SINFOROSO V. TABAMO, JR., ET AL. G.R. No. 104848

CASE NO. 7. Facts:This petition for

ANTONIO GALLARDO, ET AL. vs.

January 29, 1993

certiorari

under Rule 65 of the 1997 Rules of

Civil Procedure seeks to annul and set aside, for having been rendered with grave abuse of
discretion amounting to lack or excess of jurisdiction, the 17 May 1996

of the COMELEC

Resolution

2nd Division in Sunga v. Trinidad, SPA No. 95-213 1 dismissing

the petition for disqualification against private respondent Ferdinand B. Trinidad pursuant to
COMELEC Resolution No. 2050 promulgated 3 November 1988, as amended by COMELEC
Resolution No. 2050-A promulgated 8 August 1990, and 30 July 1996 Resolution of the
COMELEC En Banc affirming the 17 May 1996 Resolution of the COMELEC 2nd Division.
Petitioner Manuel C. Sunga was one of the candidates for the position of Mayor in the
Municipality of Iguig, Province of Cagayan, in the 8 May 1995 elections. Private respondent
Ferdinand B. Trinidad, then incumbent mayor, was a candidate for re-election in the same
municipality.
On 22 April 1995 Sunga filed with the COMELEC a letter-complaint 2 for disqualification
against Trinidad, accusing him of using three (3) local government vehicles in his campaign,
in violation of Sec. 261, par. (o), Art. XXII, of BP Blg. 881 (Omnibus Election Code, as
amended). On 7 May 1995, Sunga filed another letter-complaint 3 with the COMELEC
charging Trinidad this time with violation of Sec. 261, par. (e) (referring to threats,
intimidation, terrorism or other forms of coercion) of the Omnibus Election Code, in addition
to the earlier violation imputed to him in the first letter-complaint. This was followed by an
Amended Petition 4 for disqualification consolidating the charges in the two (2) letterscomplaint, including vote buying, and providing more specific details of the violations
committed by Trinidad. The case was docketed as SPA No. 95-213.
In a Minute Resolution dated 25 May 1995, 5 the COMELEC 2nd Division referred the
complaint to its Law Department for investigation. Hearings were held wherein Sunga
adduced evidence to prove his accusations. Trinidad, on the other hand, opted not to submit
any evidence at all.
Meanwhile, the election results showed that Trinidad garnered the highest number of votes,
while Sunga trailed second.
On 10 May 1995 Sunga moved for the suspension of the proclamation of Trinidad. However,
notwithstanding the motion, Trinidad was proclaimed the elected mayor, prompting Sunga to
file another motion to suspend the effects of the proclamation. Both motions were not acted
upon by the COMELEC 2nd Division.
On 28 June 1995 the COMELEC Law Department submitted its Report to the COMELEC En
Banc recommending that Trinidad be charged in court for violation of the following penal
provisions of the Omnibus Election Code: (a) Sec. 261, par. (a), on vote buying; (b) Sec. 261,
26

par. (e), on threats, intimidation, terrorism or other forms of coercion; and, (c) Sec. 261, par.
(o), on use of any equipment, vehicle owned by the government or any of its political
subdivisions. The Law Department likewise recommended to recall and revoke the
proclamation of Ferdinand B. Trinidad as the duly elected Mayor of Iguig, Cagayan; proclaim
Manuel C. Sunga as the duly elected Mayor; and, direct Sunga to take his oath and assume
the duties and functions of the office.
The COMELEC En Banc approved the findings of the Law Department and directed the filing
of the corresponding informations in the Regional Trial Court against Trinidad. Accordingly,
four (4) informations 7 for various elections offenses were filed in the Regional Trial Court of
Tuguegarao, Cagayan. The disqualification case, on the other hand, was referred to the
COMELEC 2nd Division for hearing.
On 2 May 1996 Sunga filed a Second Urgent Motion to Suspend the Effects and Annul the
Proclamation with Urgent Motion for Early Resolution of the Petition. But in its 17 May 1996
Resolution, the COMELEC 2nd Division dismissed the petition for disqualification, holding in
its Resolution No. 2050 that
1.

Any complaint for disqualification of a duly registered candidate based upon any

of the grounds specifically enumerated under Sec. 68 of the Omnibus Election Code, filed
directly with the Commission before an election in which respondent is a candidate, shall be
inquired into by the Commission for the purpose of determining whether the acts
complained of have in fact been committed . . . .
In case such complaint was not resolved before the election, the Commission may motu
propio, or on motion of any of the parties, refer the complaint to the Law Department of the
Commission as the instrument of the latter in the exercise of its exclusive power to conduct
a preliminary investigation of all cases involving criminal infractions of the electionlaws . . . .
2.

Any complaint for disqualification based on Sec. 68 of the Omnibus Election Code

in relation to Sec. 6 of Republic Act No. 6646 filed after the election against a candidate who
has already been proclaimed as a winner shall be dismissed as a disqualification case.
However, the complaint shall be referred for preliminary investigation to the Law
Department of this Commission.
Where a similar complaint is filed after election but before proclamation of the respondent
candidate, the complaint shall, nevertheless, be dismissed as a disqualification case.
However, the complaint shall be referred for preliminary investigation to the Law
Department. If, before proclamation, the Law Department makes a prima facie finding of
guilt and the corresponding information has been filed with the appropriate trial court, the
complainant may file a petition for suspension of the proclamation of the respondent with
the court before which the criminal case is pending and said court may order the suspension
of the proclamation if the evidence of guilt is strong.
As interpreted in the case of Silvestre v. Duavit, SPA 94-003, Resolution No. 2050 provides
for the outright dismissal of the disqualification case in three cases: (1) The disqualification
case was filed before the election but remains unresolved until after the election; (2) The
disqualification case was filed after the election and before the proclamation of winners; and
(3) The disqualification case was filed after election and after proclamation.
If the instant case is deemed to have been filed upon receipt by the COMELEC of the lettercomplaint on April 26 1995, it nevertheless remained pending until after the election. If it is
deemed to have been filed upon filing of the amended petition on 11 May 1995, it was
clearly filed after the election. In either case, Resolution No. 2050 mandates the dismissal of
the disqualification case.
27

His motion for reconsideration having been denied by the COMELEC En Banc, Sunga filed the
instant petition contending that the COMELEC committed grave abuse of discretion in
dismissing the petition for disqualification in that: first, Sec. 6 of RA No. 6646 requires the
COMELEC to resolve the disqualification case even after the election and proclamation, and
the proclamation and assumption of office by Trinidad did not deprive the COMELEC of its
jurisdiction; second COMELEC Resolution No. 2050 is null and void as it contravenes Sec. 6 of
R.A. No. 6646; third, the fact that COMELEC authorized the filing of four (4) informations
against private respondent for violation of the penal provisions of the Omnibus Election Code
shows more than sufficient and substantial evidence to disqualify Trinidad, and he should
have been so disqualified; and fourth, since Trinidad was a disqualified candidate, it is as if
petitioner was the only candidate entitled to be proclaimed as the duly elected mayor.
Private respondent, on the other hand, postulates inter alia that Sunga's letters-complaint of
22 April 1995 and 7 May 1995 were not petitions for disqualification because no filing fee
was paid by Sunga; the letters-complaint were never docketed by the COMELEC; and, no
summons was ever issued by the COMELEC and private respondent was not required to
answer the letters-complaint. It was only on 13 May 1995 when petitioner filed the so-called
Amended Petition, docketed for the first time as SPA No. 95-213. Thus, the COMELEC
correctly dismissed the disqualification case for having been filed only after the 8 May 1995
elections and the proclamation of private respondent on 10 May 1995, pursuant to COMELEC
Resolution No. 2050.
COMELEC filed its Comment on 21 April 1997 relying heavily on Resolution No. 2050 and the
Silvestre v. Duavit ruling in support of the dismissal of the disqualification case. The
COMELEC insisted that the

outright dismissal of a disqualification case was

warranted under any of the following circumstances : (a) the

disqualification case was filed before the election but was still
pending (unresolved) after the election; (b) the disqualification
case was filed after the election but before the proclamation of
the winner; and, (c) the disqualification case was filed after the
election and after the proclamation of the winner.

QUESTIONS:
1.The issue in this case is whether the COMELEC committed grave abuse of discretion when
it dismissed the disqualification case against private respondent Trinidad. On the basis of the
facts, didthe COMELEC commit grave abuse of discretion?

YES.

2.Trinidad further avers that the COMELEC was correct in summarily dismissing the
disqualification case because the docket fees were not duly paid. Is the contention correct?

NO.
28

3.Sunga claims that, in the event of Trinidads disqualification, he should be proclaimed as

mayor? Is he correct?

NO.

4.In this case who should be the rightful mayor? Explain.

VICE MAYOR

Answer NO 7: The petition is partly meritorious.

We find private respondents arguments on the propriety of the letters-complaint puerile.
COMELEC itself impliedly recognized in its Resolution that the petition was filed before the 8
May 1995 election in the form of letters-complaint, thus
This case originally came to the attention of this Commission on 26 April 1995 in a form of
letter from petitioner accusing respondent of utilizing government properties in his
campaign and praying for the latters immediate disqualification. Another letter dated 7
May 1995 and addressed to the COMELEC Regional Director of Region II reiterated
petitioners prayer while alleging that respondent and his men committed acts of terrorism
and violated the gun ban. Finally, on 11 May 1995, an Amended Petition was filed with the
Clerk of Court of the Commission containing substantially the same allegations as the
previous letters but supported by affidavits and other documentary evidence.
That the

or

Amended Petition

after

the

consequence.

was

filed

elections,

only on 11 May 1995,

is

of

no

It was merely a reiteration of the charges filed by

petitioner against private respondent on 26 April 1995 and 7 May 1995 or before the
elections.

Consequently, the

Amended Petition retroacted

to such earlier dates.

supplements
alleged

and

in the complaint

An

amendment

which merely

amplifies facts originally

relates back to the date of

the commencement of the action

and is not barred by

the statute of limitations which expired after the service of the original complaint. [xxiv][9]
The fact that no docket fee was paid therefor was not a fatal procedural lapse on the part of
petitioner. Sec. 18, Rule 42, of the COMELEC Rules of Procedure provides, If the fees above
described are not paid, the Commission may refuse to take action thereon until they are paid
and may dismiss the action or proceeding.

The use of the word may indicates that it is

permissive only and operates to confer a discretion on the COMELEC whether to entertain
the petition or not in case of non-payment of legal fees.

That the COMELEC acted on and

did not dismiss the petition outright shows that the non-payment of fees was not considered
by it as a legal obstacle to entertaining the same.

Be that as it may, the

procedural
29

defects have been cured by the subsequent payment of

docket fees, and private respondent was served with
summons, albeit belatedly, and he submitted his answer
to the complaint.

Hence,

private

respondent

has

no cause to

complain that no docket fee was paid, no summons

served upon him, or that he was not required to
answer.
Neither do we agree with the conclusions of the COMELEC.

We discern nothing in COMELEC

Resolution No. 2050 declaring, ordering or directing the dismissal of a disqualification case
filed before the election but which remained unresolved after the election

. What

the Resolution mandates in such a case is for the

Commission to refer the complaint to its Law
Department for investigation to determine whether
the

acts

complained

committed

by

disqualified.

The

the

of

have

candidate

in

fact

sought

been
to

be

findings of the Law Department

then become the basis for disqualifying the erring

candidate.

This is totally different from the other two situations contemplated by

Resolution No. 2050, i.e., a disqualification case filed after the election but before the
proclamation of winners and that filed after the election and the proclamation of winners,
wherein it was specifically directed by the same Resolution to be dismissed as a
disqualification case.
Moreover,

Resolution No. 2050

infringes

on Sec. 6 of

as interpreted in Silvestre v. Duavit

RA No. 6646,

[xxv][10]

which provides:

SEC. 6. Effects of Disqualification Case. - Any candidate who has been declared by final
judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted.

If for any reason a candidate is

not

declared by final

judgment before an election to be disqualified and

he is voted for and receives the winning number of
votes

in such election, the

Court or Commission shall

30

continue with the trial and hearing of the

action, inquiry or protest
any intervenor, may during the

pendency

of the proclamation of such candidate

his guilt is strong

Clearly, the

and, upon motion of the complainant or

thereof order the

suspension

whenever the evidence of

(underscoring supplied).

legislative intent is that the COMELEC

should continue the trial and hearing of the

disqualification case to its conclusion ,

i.e., until

judgment is rendered thereon. The word shall signifies that this requirement of the law is
mandatory, operating to impose a positive duty which must be enforced. [xxvi][11] The
implication is that the COMELEC is left with no discretion but to proceed with the
disqualification case even after the election.

Thus, in providing for the outright dismissal of

the disqualification case which remains unresolved after the election, Silvestre v. Duavit in
effect disallows what RA No. 6646 imperatively requires. This amounts to a quasi-judicial
legislation by the COMELEC which cannot be countenanced and is invalid for having been
issued beyond the scope of its authority.

Interpretative rulings

of quasi-judicial bodies or administrative

agencies

must always be in

perfect harmony with

statutes and should be for the sole purpose of carrying their general provisions
into effect. By such interpretative or administrative rulings, of course, the

scope

of the law itself cannot be limited.

Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an
act of Congress.

Hence, in case of a discrepancy between the basic law and an

interpretative or administrative ruling, the

basic law prevails.

Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee.

A candidate

guilty of election offenses would be undeservedly rewarded, instead of punished, by the

dismissal of the disqualification case against him simply because the investigating body was
unable, for any reason caused upon it, to determine before the election if the offenses were
indeed committed by the candidate sought to be disqualified.
would need to do is

the

All that the erring aspirant

to employ delaying tactics so that

disqualification

case

based

on

the
31

commission of election offenses would not be

decided before the election.

This scenario is productive of

more fraud which certainly is not the main intent and purpose of the law.

The fact that Trinidad was already proclaimed and

had assumed the position of mayor did

not

divest the COMELEC of authority and jurisdiction to

continue the hearing and eventually decide the
disqualification case.

In Aguam v. COMELEC[xxvii][12] this Court held -

Time and again this Court has given its imprimatur on the principle that COMELEC is with
authority to annul any canvass and proclamation which was illegally made. The fact that a
candidate proclaimed has assumed office, we have said, is no bar to the exercise of such
power.

It of course may not be availed of where there has been a valid proclamation.

Since private respondents petition before the COMELEC is precisely directed at the
annulment of the canvass and proclamation, we perceive that inquiry into this issue is within
the area allocated by the Constitution and law to COMELEC x x x x Really, were a victim of a
proclamation to be precluded from challenging the validity thereof after that proclamation
and the assumption of office thereunder, baneful effects may easily supervene.
It must be emphasized that the purpose of a disqualification proceeding is to prevent the
candidate from running or, if elected, from serving, or to prosecute him for violation of the
election laws. Obviously, the fact that a candidate has been proclaimed elected does not
signify that his disqualification is deemed condoned and may no longer be the subject of a
separate investigation.
It is worth to note that an election offense has criminal as well as electoral aspects.

Its

criminal aspect involves the ascertainment of the guilt or innocence of the accused
candidate. Like in any other criminal case, it usually entails a full-blown hearing and the
quantum of proof required to secure a conviction is beyond reasonable doubt. Its electoral
aspect, on the other hand, is a determination of whether the offender should be disqualified
from office.

This is done through an administrative proceeding which is summary in

character and requires only a clear preponderance of evidence. Thus, under Sec. 4 of the
COMELEC Rules of Procedure, petitions for disqualification "shall be heard summarily after
due notice."

It is the electoral aspect that we are more concerned with, under which an

erring candidate may be disqualified even without prior criminal conviction. [xxviii][13]
It is quite puzzling that the COMELEC never acted on Sungas motion to suspend the
proclamation of Trinidad.

The last sentence of Sec. 6 of RA No. 6646 categorically declares

that the Commission may order the suspension of the proclamation of a candidate sought to
be disqualified whenever the evidence of his guilt is strong.

And there is not a scintilla of

doubt that the evidence of Trinidads guilt was strong as shown in the Report and
Recommendation of the COMELEC Law Department
Parenthetically,

there

is merit to petitioners petition

against the

respondent

for

disqualification for the alleged commission of election offenses under Sec. 68 of the
Omnibus Election Code, such as use of armed men and act of terrorism, intimidation and
32

coercion of voters, massive vote-buying and others, duly supported by affidavits of

witnesses and other documents.

Consequently, the petitioners evidence supporting the

disqualification of respondent remain unrebutted simply because respondent has expressly

waived his right to present evidence in SPA No. 95-213 in his Manifestation and objection to
the presentation of evidence in SPA No. 95-213 dated 16 June 1995, thus the waiver is the
intentional relinquishing of a known right of respondent TRINIDAD.
In

fact,

on

the

basis

Recommendation

of

an

indication

that

and

the COMELEC directed the filing of four

criminal informations
Court,

Report

this

there

(4)

against Trinidad before the Regional Trial

was

indeed

prima facie

evidence of violation of election laws.

However, Sungas contention that he is entitled to be proclaimed as the duly elected Mayor
of the Municipality of Iguig, Province of Cagayan, in the event that Trinidad is disqualified
finds no support in law and jurisprudence.

The fact that the candidate

who obtained the highest number of votes is later

disqualified for the office to which he was

elected does

not entitle the candidate who obtained

the second

highest number of votes to be declared the winner of the

elective office. The votes cast for a disqualified person may not be valid to install
the winner into office or maintain him there.

But in the absence of a statute which

clearly asserts a contrary political and legislative policy on the matter, if the votes were cast
in the sincere belief that the candidate was qualified, they should not be treated as stray,
void or meaningless.[xxix][14]
Sunga totally miscontrued the nature of our democratic electoral process as well as the
sociological and psychological elements behind voters preferences.

Election is the process

of complete ascertainment of the expression of the popular will. Its ultimate purpose is to

give effect to the will of the electorate

by giving them

direct participation in choosing the men and

women who will run their government.

Thus, it would be

extremely repugnant to the basic concept of the constitutionally guaranteed right to

suffrage if a candidate who has not acquired the majority or plurality of votes is proclaimed
winner and imposed as the representative of a constituency, the majority of whom have
positively declared through their ballots that they do not choose him. [xxx][15]
While Sunga may have garnered the second highest number of votes, the fact remains that
he was not the choice of the people of Iguig, Cagayan.

The wreath of
33

victory cannot be transferred from the disqualified

winner to the repudiated loser because the law
then as now only

authorizes

a declaration

of

election in favor of the person who has obtained

a

plurality

of

votes

and

does

not

entitle

candidate receiving the next highest number of

votes to be declared elected.

[xxxi][16]

In Aquino v. COMELEC,[xxxii][17] this

Court made the following pronouncement:

To simplistically assume that the second placer would have received the other votes would
be to substitute our judgment for the mind of the voter.

just that, a second placer.

The second placer is

He lost the elections and was

repudiated by either a majority or plurality of voters. He

could not be considered the first among qualified
candidates because in a field which excludes the
disqualified

candidate,

substantially changed.

the

conditions

would

have

We are not prepared to extrapolate the results under

such circumstances.
Also, what Sunga wants us to do is to disregard the express mandate of Sec. 44, RA No.
7160,[xxxiii][18] which provides in part Sec. 44. Permanent vacancies in the office of the Governor, Vice-Governor, Mayor, ViceMayor. - (a) If a permanent vacancy occurs in the office of the Governor or Mayor, the ViceGovernor or Vice-Mayor concerned shall become the Governor or Mayor x x x x
For purposes of this chapter, a
elective local official

permanent vacancy

arises when an

fills a higher vacant office, refuses

to assume office,

fails to qualify,

dies,

is

removed from office, voluntarily resigns or is

otherwise permanently incapacitated to discharge
the functions of his office

xxxx

This provision is echoed in Art. 83 of the Implementing Rules and Regulations of the Local
Government Code of 1991.
The language of the law is clear, explicit and unequivocal, thus admits no room for
interpretation but merely application.

This is the basic legal precept. Accordingly, in the

event that Trinidad is adjudged to be disqualified, a

permanent vacancy will

34

be created

for failure of the elected mayor to qualify for the said office. In such

eventuality, the

duly elected vice-mayor shall

succeed

as

provided

by

law.[xxxiv][19]

MANUEL

C.

SUNGA,

petitioner,vs.COMMISSION ON ELECTIONS and FERDINAND B. TRINIDAD, respondents. EN

BANC (G.R. No. 125629

March 25, 1998)

CASE NO. 8: FACTS:This case involves the

COMELEC)

Municipal

to

Councilor

annul
in

of the Commission on Elections

proclamation

view

computation
Statement

the

power

of

of

an

of a winning candidate for

error in the

totals

in

the

of Votes which was made the basis

of the proclamation,

and to direct the Municipal Board of Canvassers to

reconvene and proclaim the rightful winner.

On 9 May 1995 the Municipal Board of Canvassers of Tanza, Cavite, issued a Certificate of
Canvass of Votes and Proclamation of the Winning Candidates for Municipal Offices
(Municipal Councilors) as follows: (1) Wilfredo A. Nuez, 14,888 votes; (2) Yuri A. Pacumio,
13,445 votes; (3) Rogelino A. Dones, 12,428 votes; (4) Francisco C. Pasco, 12,218 votes; (5)
Rosauro I. Torres. 12,055 votes; (6) Rosalita C. Cenizal, 12,035 votes; (7) Eliseo R. Arcaira Jr.,
11,939 votes; (8) Policarpio A. Bocalan, 11,790 votes. Accordingly, petitioner Atty. Rosauro I.
Torres was proclaimed as the fifth winning candidate for councilor. 1
Two (2) days after or on 11 May 1995 the same Municipal Board of Canvassers requested the
COMELEC for correction of the number of votes garnered by petitioner who was earlier
proclaimed as the fifth winning candidate for councilor. The letter-request was signed by
Rudolph Melon and Norma Abril as Vice Chairman and Secretary, respectively. The letter
reads :
The undersigned members of the Board of Canvassers, Tanza, Cavite, respectfully request
for the correction of votes garnered by Mr. Rosauro I. Torres who was proclaimed as the fifth
winning candidate for Councilor instead of Mr. Vicente Rafael A. de Peralta who landed in the
number eight (8th) position. The votes intended for MR. BERNARDO C. DIMAALA in the subtotal as reflected in the Statement of Votes by precinct was erroneously added to Mr. Torres
35

for a total of Nine Hundred Thirty Four (934) votes. Mr. Torres should have been number ten
(10) in the winning column and that if correction shall be made Mr. Torres shall garner a total
of Eleven Thousand One Hundred Twenty One (11,121) votes while Mr. de Peralta garnered
a total of Eleven Thousand Six Hundred Ten (11,610) votes. 2
On 16 May 1995 the COMELEC set the case for hearing. Summonses with notices of hearing
were sent to petitioner Atty. Rosauro I. Torres and private respondent Vicente Rafael A. de
Peralta requiring them to file their respective answers to the letter of the Municipal Board of
Canvassers.
Petitioner filed his answer alleging that the subject matter of the letter-petition of the
Municipal Board of Canvassers, which was the correction of votes garnered by him, properly
falls within the jurisdiction of the Regional Trial Court pursuant to Sec. 251 of the Omnibus
Election Code. On the other hand, private respondent argued for the annulment of the
proclamation of petitioner and prayed for his (private respondent) proclamation as the
winning candidate.
On 28 June 1995 respondent COMELEC issued the assailed En Banc resolution granting the
letter-request of the Municipal Board of Canvassers for the correction of the number of votes
garnered by petitioner. Respondent Comelec also ordered the Municipal Board of Canvassers
to reconvene and proclaim private respondent Vicente Rafael A. de Peralta as the eighth
winning councilor of Tanza, Cavite.
On 5 July 1995 the Municipal Board of Canvassers issued a corrected Certificate of Canvass
of Votes and Proclamation of the Winning Candidates which included private respondent
Vicente Rafael A. de Peralta as the eighth winning councilor and excluded petitioner from the
new list of winning candidates. 3
Petitioner came up to this Court alleging that public respondent COMELEC acted without or
in excess of its jurisdiction in granting the request of the Municipal Board of Canvassers to
correct the votes garnered by petitioner and in ordering the proclamation of private
respondent as the eighth winning candidate thereby ousting petitioner from the new list of
winners. Petitioner also argues that the Municipal Board of Canvassers had no legal
personality to file the action motu proprio before the Comelec for correction; that corrections
are allowed only when there has been no proclamation yet, citing Respicio v. Cusi; and
finally, that once the Municipal Board of Canvassers has declared and proclaimed the
winners in an election its functions are finished and its existence is terminated.
The Office of the Solicitor General submits that respondent COMELEC acted beyond the
limits of its power and authority when it ordered the Municipal Board of Canvassers to
reconvene and correct its alleged mistake in counting the votes cast for candidate Dimaala
in favor of petitioner; that by having done so, respondent COMELEC had exercised original
jurisdiction over a municipal election contest contrary to what the Constitution mandates;
that Art. IX-C, Sec. 2, par 2, of the Constitution provides that the Commission on Elections
shall exercise appellate jurisdiction overall contests involving elective municipal officials
decided by trial courts of general jurisdiction, or involving elective barangay officials decided
by trial courts of limited jurisdiction.
Respondent COMELEC filed its own comment alleging that the proclamation of petitioner was
36

flawed from the beginning for being tainted with clerical error or mathematical mistake in
the addition of votes; that pursuant to the ruling in Villaroya v. Comelec 5 public respondent
has original jurisdiction on all matters relating to election returns, including the verification
of the number of votes received by opposing candidates in the election returns as compared
to the statement of votes in order to ensure that the true will of the people is known; and,
that according to Tatlonghari v. Comelec, 6 when what is involved is purely mathematical
and/or mechanical error in the operation of the adding machine committed by the board of
canvassers but does not involve any opening of ballot boxes, examination and appreciation
of ballots and/or election returns, all that is

required is to reconvene the board of

canvassers to rectify the error it inadvertently committed. Respondent COMELEC also

contends that since it has the direct control and supervision over the municipal board of
canvassers, the former has authority to direct the latter to reconvene and continue its
assigned task in proclaiming the rightful winner for municipal councilor.
QUESTION: On the basis of the facts at bar, did the COMELEC commit grave abuse of
discretion to merit a reversal of its decision? Explain and support your answer.

ANSWER NO 8: Petitioner's contentions must fail. The

is

position

of

COMELEC

well-taken. Sec. 7, Rule 27, of the COMELEC Rules of Procedure provides

Sec. 7.

Correction of Errors in Tabulation or Tallying of Results by the Board of

Canvassers. (a) where it is

clearly shown

manifest errors
tallying

of election

canvassing

were

returns,

or

before

committed

in

the

certificates

proclamation that

tabulation

or

of canvass, during the

as where (1) a copy of the election returns of one precinct or two or

more copies of a certificate of canvass were tabulated more than once, (2) two copies of the
election returns or certificate of canvass were tabulated separately, (3) there was a mistake
in the adding or copying of the figures into the certificate of canvass or into the statement of
votes by precinct, or (4) so-called election returns from non-existent precincts were included
in the canvass, the board may motu proprio or upon verified petition by any candidate,
political party, organization or coalition of political parties, after due notice and hearing,
correct the errors committed.
In Castromayor v. Comelec[xxxv][7] we held that although the above provision applies to preproclamation controversies, and even if the proclamation of a winning candidate has already
been made, there is nothing to prevent its application to cases like the one at bar in which
the validity of the proclamation is precisely in question. In Duremdes v. COMELEC,[xxxvi][8] this
Court sustained the

power of the COMELEC En Banc to

order a correction of the Statement of Votes

to make it conform to the election returns
accordance with a procedure similar to the procedure now embodied in

in

Sec. 7, Rule
37

27, of the COMELEC Rules of Procedure. Since the Statement

of Votes forms the basis of the Certificate of Canvass and of the proclamation, any error in
the statement ultimately affects the validity of the proclamation.
It may be argued that because petitioner has already been

candidate

the

REMEDY

protest

proclaimed as winning

of the losing party is an

election

over which the Regional Trial Court and not the COMELEC nor the

Municipal Board of Canvassers has original jurisdiction. However, as this Court already
ruled in Duremdes
It is Duremdes further submission that his proclamation could not be declared null and void
because a pre-proclamation controversy is not proper after a proclamation has been made,
the

proper

recourse

being

assumption,

an

election protest.

however,

proclamation.

that

there

has

Where a proclamation is

This

been

is

on

the

valid

null and void, the

proclamation is no proclamation at all and the proclaimed

candidate's

assumption

of

office

cannot

deprive

the

COMELEC of the power to declare such nullity and annul

the proclamation (Aguam v. COMELEC, L-28955, 28 May 1968, 23 SCRA 883)[xxxvii][9]
The

Statement

of Votes is

merely

tabulation

per precinct of the

votes obtained by the candidates as reflected in the election returns. What is involved in the
instant case is simple arithmetic.

In making the correction in the

computation the Municipal Board of Canvassers acted in

an administrative capacity under the control and
supervision of the COMELEC.
decide questions affecting elections, the

authority

to

Pursuant to its constitutional function to

COMELEC En Banc has

resolve

any

question

pertaining to the proceedings of the

Municipal Board of Canvassers.

[xxxviii][10]

ATTY.

ROSAURO I. TORRES, petitioner,vs.COMMISSION ON ELECTIONS and VICENTE RAFAEL A. DE

PERALTA, respondents. EN BANC G.R. No. 121031March 26, 1997

38

CASE NO. 9: Facts: Manuel Milla and Regina Balmores-Laxa were candidates for councillor
of Gerona, Tarlac in the May 14, 2001 elections. On

May 18, 2001, Manuel Milla

was proclaimed as the 8th wining candidate by the Municipal Board of Canvassers (BOC)
based on the Statement of Votes and the Certificate of Canvass. One month after his
proclamation or on June 18, 2001, Regina filed a petition with the COMELEC against Manuel
and the BOC for correction of entries in the Statement of Votes based on fraud or
irregularities in the canvassing of votes, specifically the entries for the 4 precincts in the
Statement of Votes did not correspond to the election returns for the respective precincts.
On June 29, 2001, Manuel took his oath of office and assumed office.
The BOC admits the erroneous tally, and prays that it it be allowed to reconvene
to effect the correction of entries in the Statement of Votes, inorder to give way for Reginas
winning as the eight councillor of Gerona.
In its Resolution of December 18, 2001, the COMELEC EN BANC, denied the BOCs
motion to reconvene, declared Manuels proclamation as null and void and proclaimed
Regina as the eight winning candidate.
Manuel argued that:
1) the petition of Regina was filed beyond the reglementary period of five days from
proclamation

Under the COMELEC rules, the prescription period is indeed

5 days after the proclamation, however, pursuant to the long
settled rule, technicalities should never be strictly adhered so as
to defeat the will of the electorate
2) pre-proclamation cases should be terminated after proclamation and assumption of office

Generally, yes, however, proceedings may continue

when on the basis of evidence thus far presented, the
Commission

determined

that

the

petition

appears

meritorious and accordingly issues an order for the

proceeding to continue. The COMELEC issued Resolution
No. 4493 on June 29, 2001 declaring the termination of all
pre-proclamation cases except those included in the list
annexed thereto which list included SPC No. 01-311,
respondents petition before the COMELEC subject of the
present petition.
3) padding of statement of votes is not a proper subject of a pre-proclamation case
the

petition

filed

by

respondent

before

the

COMELEC

involves

proclamation controversy, not

an

pre-

election
39

contest
improbability,

and indeed it is not, for while the petition alleged fraud and statistical
the

remedy

sought

was

merely

for

correction of

erroneous entries in the Statement of

Votes

which were based on the

election returns.

4) that the COMELEC en banc did not have jurisdiction over the petition of Regina.

Contention is correct. It should have been first heard

by COMELEC sitting in a division before it could be
elevated to the COMELEC en banc by way of MR.
QUESTION: Resolve the issues raised by Manuel.
Answer NO 9: Petitioner maintains that the COMELEC has no jurisdiction over the petition as
it was filed beyond the reglementary period. For, so petitioner contends, since the
proclamation was made on May 18, 2001, the petition to correct the Statement of Votes
should have been filed within 5 days thereafter conformably with Section 5, Rule 27 of the
COMELEC Rules of Procedure[1][25] which reads:
Sec. 5. Pre-proclamation Controversies Which May Be Filed Directly With the Commission.

(a) The following pre-proclamation controversies may be filed directly with the

Commission:
1) x x x
2)

When the issue involves the correction of manifest errors in the tabulation or tallying of

the results during the canvassing as where (1) a copy of the election returns or certificate of
canvass was tabulated more than once, (2) two or more copies of the election returns of
one precinct, or two or more copies of certificate of canvass were tabulated separately, (3)
there has been a mistake in the copying of the figures into the statement of votes or into the
certificate of canvass, or (4) so-called returns from non-existent precincts were included in
the canvass, and such errors could not have been discovered during the canvassing despite
the exercise of due diligence and proclamation of the winning candidates had already been
made.
b) x x x
If the petition is for correction, it must be filed not later than five (5) days following the date
of proclamation and must implead all candidates who may be adversely affected thereby.
x x x (Underscoring supplied)
In holding that it validly assumed jurisdiction over the petition, the COMELEC asserts that
[a] proclamation that is based on a clerical or mathematical mistake (or a blatant padding
of votes) is not a valid proclamation [h]ence, the same can be challenged even after the
proclaimed candidate has assumed office. [2][26]
The Statement of Votes forms the basis of the Certificate of Canvass and of the
proclamation. Any error in the statement ultimately affects the validity of the proclamation.
40

[3][27]

If a candidates proclamation is based on a Statement of Votes which contains erroneous

entries, it is null and void. It is no proclamation at all and the proclaimed candidates
assumption of office cannot deprive the COMELEC of the power to annul the proclamation. [4]
[28]

In the case at bar, as the Statement of Votes contained erroneous entries, the COMELEC
rightfully assumed jurisdiction over respondents petition for the correction thereof and
declaration of nullity of petitioners proclamation.

While our election laws are silent when

such and similar petitions may be filed directly with the COMELEC, [5][29] the above-quoted

Section 5, Rule 27 of the Rules of Procedure sets a

prescriptive period of five (5) days following the
date of proclamation.

The COMELEC, however,

could suspend its own Rules of Procedure so as not

to

defeat

the

will

of

the

electorate. [6][30]

For

adherence to technicality that would put a stamp

on

palpably

void

proclamation,

with

the

inevitable result of frustrating the peoples will,

cannot be countenanced.[7][31]
Petitioner nevertheless posits that even assuming that the COMELEC may suspend the
application of Section 5, Rule 27 of its Rules of Procedure, it can no longer exercise
jurisdiction after his proclamation, oath and assumption of office [8][32] in view of Section 16 of
Republic Act 7166[9][33] which states:
Sec. 16. Pre-Proclamation Cases Involving Provincial, City and Municipal Offices. Preproclamation cases involving provincial, city and municipal offices shall be allowed and shall
be governed by Sections 17, 18, 19, 20, 21 and 22 hereof. All pre-proclamation cases
pending before the Commission shall be deemed terminated at the beginning of
the term of the 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 evidence thus far presented, the Commission

determined that the petition appears meritorious and
accordingly issues an order for the proceeding to
continue

or when an appropriate order has been issued by the Supreme Court in a

petition for certiorari. (Emphasis supplied)

By petitioners claim, there is no showing that respondents petition falls under the
exception in the above-quoted provision as the petition has not been determined by the
COMELEC to be meritorious and no order has been issued for the proceeding to
41

The COMELEC issued Resolution

continue.[10][34] The claim does not lie.

No. 4493 on June 29, 2001 declaring the termination of all

pre-proclamation cases except those included in the list
annexed thereto which list included SPC No. 01-311,
respondents petition before the COMELEC subject of the
present petition.
Petitioner additionally claims that the COMELEC, in assuming original jurisdiction over a case
involving municipal officials, acted beyond the limits of its power under the Constitution,
particularly Section 2, paragraph 2 of Article IX-C[11][35] which provides:
Sec. 2. The Commission on Elections shall exercise the following powers and functions:
(1)
(2)

Exercise

exclusive

original

jurisdiction

over

all

contests

elections, returns, and qualifications

relating

to

the

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 .
(3) (Emphasis and underscoring supplied)

Petitioners above-claim
the

petition

filed

by

does

respondent

NOT

before

the

likewise

COMELEC

lie.

involves

proclamation controversy, not

contest

By his admission,

an

pre-

election

and indeed it is not, for while the petition alleged fraud and statistical

improbability,

the

remedy

sought

was

merely

for

correction of

erroneous entries in the Statement of

Votes

which were based on the

election returns.

As the petition then of respondent involves a pre-proclamation controversy, following Sec. 3

of Art. IX-C of the 1987 Constitution which provides:
Sec. 3.

The

Commission on Elections may sit en

banc or in two divisions, and shall promulgate its rules of procedure

in order to expedite disposition of election cases, including pre-proclamation
controversies.

All

such election cases

shall

be

heard and decided

in
42

provided

division,

decisions shall be

that

motions for reconsideration

decided

by the Commission

en banc.

of

(Emphasis and

underscoring supplied)
it should have first been heard and decided by a division of the COMELEC, 37 and then by the
En Banc if a motion for reconsideration of the decision of the division were filed.
Since, as reflected above, the

COMELEC sitting en banc acted

on respondents petition which was not first passed upon

by a division, it acted without jurisdiction, or with grave
abuse of discretion.[12][36]

The assailed Resolution of the COMELEC dated

December 18, 2001 is thus null and void and it is in this light that the present petition is
GRANTED. This leaves it unnecessary to pass on petitioners second assigned error. Manuel
Milla v. Regina BALMORES-LAXA, (G.R. No. 151216, July18, 2003)

CASE NO. 10: Facts: Atty. Romulo Macalintal files a petition for certiorari and prohibition
before the Supreme Court seeking a declaration that certain provisions of Republic Act No.
9189 (The Overseas Absentee Voting Act of 2003) suffer from constittuiona infirmity. He
raises the following questions:
1)

Does Sec. 5(d) of said Act allowing the registration of voters who are immigrants or

permanent residents in other countries by their mere act of executing an affidavit expressing
their intention to return to the Philippines, violate the residency requirement in Section 1 of
Art. V of the Constitution?
2)

Does Sec. 18.5 of the same law empowering the COMELEC to proclaim the winning

candidates for national offices (i.e. senators, pres. and vice pres.) and party list
representatives violate the constitutional mandate under Art. VII, SEC. 4 of the Constitution
that the winning candidates for Pres. and Vice Pres. shall be proclaimed as winners by
Congress?
3)

May Congress, through the Joint Congressional Oversight Committee created in Sec.

25 of said Act, exercise the power to review, revise, amend and approve the Implementing
Rules and

Regulations

that the COMELEC

shall

promulgate

without violating

the

independence of theCOMELEC under Section 1, Art. IX-A of the 1987 Constitution?

Resolve the questions posed by Macalintal.
ANSWER NO 10: The seed of the present controversy is the interpretation that is given to
the phrase, qualified citizens of the Philippines abroad as it appears in R.A. No. 9189, to
wit:
SEC. 2. Declaration of Policy. It is the prime duty of the State to provide a system of
honest and orderly overseas absentee voting that upholds the secrecy and sanctity of the
ballot. Towards this end, the State ensures equal opportunity to all qualified citizens of
the Philippines abroad in the exercise of this fundamental right.
SEC. 3. Definition of Terms. For purposes of this Act:
a) Absentee Voting refers to the process by which qualified citizens of the Philippines
abroad, exercise their right to vote;
43

. . . (Emphasis supplied)
f)

Overseas Absentee Voter refers to a citizen of the Philippines who is qualified to

register and vote under this Act, not otherwise disqualified by law, who is abroad on the
day of elections. (Emphasis supplied)
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise
disqualified by law, at least eighteen (18) years of age on the day of elections, may vote
for president, vice-president, senators and party-list representatives. (Emphasis supplied)
in relation to Sections 1 and 2, Article V of the Constitution which read:
SEC. 1.

Suffrage may be exercised by all citizens of the Philippines not otherwise

disqualified by law, who are at least eighteen years of age, and who shall have resided in the
Philippines for at least one year and in the place wherein they propose to vote for at least six
months immediately preceding the election. No literacy, property, or other substantive
requirement shall be imposed on the exercise of suffrage.
SEC. 2. The Congress shall provide a system for securing the secrecy and sanctity of the
ballot as well as a system for absentee voting by qualified Filipinos abroad.
......

. . . (Emphasis supplied)

Section 1, Article V of the Constitution specifically provides that suffrage may be exercised
by (1) all citizens of the Philippines, (2) not otherwise disqualified by law, (3) at least
eighteen years of age, (4) who are residents in the Philippines for at least one year and in
the place where they propose to vote for at least six months immediately preceding the
election. Under Section 5(d) of R.A. No. 9189, one of those disqualified from voting is an
immigrant or permanent resident who is recognized as such in the host country unless
he/she executes an affidavit declaring that he/she shall resume actual physical permanent
residence in the Philippines not later than three years from approval of his/her registration
under said Act.
Petitioner questions the rightness of the mere act of execution of an affidavit to qualify the
Filipinos abroad who are immigrants or permanent residents, to vote. He focuses solely on
Section 1, Article V of the Constitution in ascribing constitutional infirmity to Section 5(d) of
R.A. No. 9189, totally ignoring the provisions of Section 2 empowering Congress to provide a
system for absentee voting by qualified Filipinos abroad.
A simple, cursory reading of Section 5(d) of R.A. No. 9189 may indeed give the impression
that it contravenes Section 1, Article V of the Constitution. Filipino immigrants and
permanent residents overseas are perceived as having left and abandoned the Philippines to
live permanently in their host countries and therefore, a provision in the law enfranchising
those who do not possess the residency requirement of the Constitution by the mere act of
executing an affidavit expressing their intent to return to the Philippines within a given
period, risks a declaration of unconstitutionality. However, the risk is more apparent than
real.
The Constitution is the fundamental and paramount law of the nation to which all other laws
must conform and in accordance with which all private rights must be determined and all
public authority administered.[13][23] Laws that do not conform to the Constitution shall be
stricken down for being unconstitutional.
Generally, however, all laws are presumed to be constitutional. In Peralta vs. COMELEC, the
Court said:
. . . An act of the legislature, approved by the executive, is presumed to be within
constitutional limitations. The responsibility of upholding the Constitution rests not on the
courts alone but on the legislature as well. The question of the validity of every statute is
44

first determined by the legislative department of the government itself. [14][24]

Thus, presumption of constitutionality of a law must be overcome convincingly:
. . . To declare a law unconstitutional, the repugnancy of that law to the Constitution must be
clear and unequivocal, for even if a law is aimed at the attainment of some public good, no
infringement of constitutional rights is allowed. To strike down a law there must be a clear
showing that what the fundamental law condemns or prohibits, the statute allows it to be
done.[15][25]

As the essence of R.A. No. 9189 is to

enfranchise overseas qualified Filipinos,

it

behooves the Court to take a holistic view of the pertinent provisions of both the
Constitution and R.A. No. 9189.

It is a basic rule in constitutional

construction that the Constitution should be construed as

a whole.

In Chiongbian vs. De Leon,[16][26] the Court held that a constitutional provision

should function to the full extent of its substance and its terms, not by itself alone, but in
conjunction with all other provisions of that great document. Constitutional provisions are
mandatory in character unless, either by express statement or by necessary implication, a
different intention is manifest.[17][27] The intent of the Constitution may be drawn primarily
from the language of the document itself. Should it be ambiguous, the Court may consider
the intent of its framers through their debates in the constitutional convention. [18][28]

R.A. No. 9189 was enacted in obeisance to the mandate

of the first paragraph of Section 2, Article V of the
Constitution that Congress shall provide a system for
voting by qualified Filipinos abroad. It must be stressed
that Section 2 does not provide for the parameters of the
exercise of legislative authority in enacting said law.
Hence, in the absence of restrictions, Congress is
presumed to have duly exercised its function as defined
in

Article

VI

(The

Legislative

Department)

of

the

Constitution.
To put matters in their right perspective, it is necessary to dwell first on the significance of
absentee voting. The concept of absentee voting is relatively new. It is viewed thus:
The method of absentee voting has been said to be completely separable and distinct from
the regular system of voting, and to be a new and different manner of voting from that
previously known, and an exception to the customary and usual manner of voting.

The

right of absentee and disabled voters to cast their

45

ballots at an election is purely statutory; absentee voting

was unknown to, and not recognized at, the common law.
Absentee voting is an outgrowth of modern social and economic conditions devised to
accommodate those engaged in military or civil life whose duties make it impracticable for
them to attend their polling places on the day of election, and

of

absentee

voting

constitutional provisions

may

the privilege
flow

from

or be conferred by statutes, existing in

some jurisdictions, which provide in varying terms for the casting and reception of ballots by
soldiers and sailors or other qualified voters absent on election day from the district or
precinct of their residence.
Such statutes are regarded as conferring a privilege and not a right, or an absolute right.
When the legislature chooses to grant the right by statute, it must operate with
equality among all the class to which it is granted; but statutes of this nature may
be limited in their application to particular types of elections.

The statutes

should be construed in the light of any constitutional

provisions affecting registration and elections, and with due
regard to their texts prior to amendment and to predecessor
statutes and the decisions thereunder; they should also be
construed in the light of the circumstances under which
they were enacted; and so as to carry out the objects thereof, if
this can be done without doing violence to their provisions and
mandates.

Further,

in

passing

on

statutes

regulating

absentee voting, the court should look to the whole and

every part of the election laws, the intent of the entire
plan, and reasons and spirit of their adoption, and try to
give effect to every portion thereof.[19][29] (Emphasis supplied)
Ordinarily, an absentee is not a resident and vice versa; a person cannot be at the same
time, both a resident and an absentee. [20][30] However, under our election laws and the
countless pronouncements of the Court pertaining to elections, an absentee remains
attached to his residence in the Philippines as residence is considered synonymous with
domicile.
In Romualdez-Marcos,[21][31] the Court enunciated:
Article 50 of the Civil Code decrees that [f]or the exercise of civil rights and the fulfillment
of civil obligations, the domicile of natural persons is their place of habitual residence. In
Ong vs. Republic, this court took the concept of domicile to mean an individuals permanent
home, a place to which, whenever absent for business or for pleasure, one intends to
return, and depends on facts and circumstances in the sense that they disclose intent.
Based on the foregoing, domicile includes the twin elements of the fact of residing or
physical presence in a fixed place and animus manendi, or the intention of returning there
46

permanently.
Residence, in its ordinary conception, implies the factual relationship of an individual to a
certain place. It is the physical presence of a person in a given area, community or country.
The essential distinction between residence and domicile in law is that residence involves
the intent to leave when the purpose for which the resident has taken up his abode ends.
One may seek a place for purposes such as pleasure, business, or health. If a persons
intent be to remain, it becomes his domicile; if his intent is to leave as soon as his purpose is
established it is residence. It is thus, quite perfectly normal for an individual to have different
residences in various places. However, a person can only have a single domicile, unless, for
various reasons, he successfully abandons his domicile in favor of another domicile of
choice. In Uytengsu vs. Republic, we laid this distinction quite clearly:
There is a difference between domicile and residence. Residence is used to indicate a
place of abode, whether permanent or temporary; domicile denotes a fixed permanent
residence to which, when absent, one has the intention of returning. A man may have a
residence in one place and a domicile in another. Residence is not domicile, but domicile is
residence coupled with the intention to remain for an unlimited time. A man can have but
one domicile for the same purpose at any time, but he may have numerous places of
residence. His place of residence is generally his place of domicile, but it is not by any
means necessarily so since no length of residence without intention of remaining will
constitute domicile.
For political purposes the concepts of residence and domicile are dictated by the peculiar
criteria of political laws. As these concepts have evolved in our election law, what has
clearly and unequivocally emerged is the fact that residence for election purposes
is used synonymously with domicile.[22][32] (Emphasis supplied)
Aware of the domiciliary legal tie that links an overseas Filipino to his residence in this
country, the framers of the Constitution considered the circumstances that impelled them to
require Congress to establish a system for overseas absentee voting, thus:
MR. OPLE. With respect to Section 1, it is not clear whether the right of suffrage, which here
has a residential restriction, is not denied to citizens temporarily residing or working abroad.
Based on the statistics of several government agencies, there ought to be about two million
such Filipinos at this time. Commissioner Bernas had earlier pointed out that these
provisions are really lifted from the two previous Constitutions of 1935 and 1973, with the
exception of the last paragraph. They could not therefore have foreseen at that time the
phenomenon now described as the Filipino labor force explosion overseas.
According to government data, there are now about 600,000 contract workers and
employees, and although the major portions of these expatriate communities of workers are
to be found in the Middle East, they are scattered in 177 countries in the world.
In a previous hearing of the Committee on Constitutional Commissions and Agencies, the
Chairman of the Commission on Elections, Ramon Felipe, said that there was no insuperable
obstacle to making effective the right of suffrage for Filipinos overseas. Those who have
adhered to their Filipino citizenship notwithstanding strong temptations are exposed to
embrace a more convenient foreign citizenship. And those who on their own or under
pressure of economic necessity here, find that they have to detach themselves from their
families to work in other countries with definite tenures of employment. Many of them are on
contract employment for one, two, or three years. They have no intention of changing their
residence on a permanent basis, but are technically disqualified from exercising the right of
suffrage in their countries of destination by the residential requirement in Section 1 which
47

says:
Suffrage shall be exercised by all citizens of the Philippines not otherwise disqualified by law,
who are eighteen years of age or over, and who shall have resided in the Philippines for at
least one year and in the place wherein they propose to vote for at least six months
preceding the election.
I, therefore, ask the Committee whether at the proper time they might entertain an
amendment that will make this exercise of the right to vote abroad for Filipino citizens an
effective, rather than merely a nominal right under this proposed Constitution.
FR. BERNAS. Certainly, the Committee will consider that. But more than just saying that, I
would like to make a comment on the meaning of residence in the Constitution because I
think it is a concept that has been discussed in various decisions of the Supreme Court,
particularly in the case of Faypon vs. Quirino, a 1954 case which dealt precisely with the
meaning of residence in the Election Law. Allow me to quote:
A citizen may leave the place of his birth to look for greener pastures, as the saying goes, to
improve his lot and that, of course, includes study in other places, practice of his avocation,
reengaging in business. When an election is to be held, the citizen who left his birthplace to
improve his lot may decide to return to his native town, to cast his ballot, but for
professional or business reasons, or for any other reason, he may not absent himself from
the place of his professional or business activities.
So, they are here registered as voters as he has the qualifications to be one, and is not
willing to give up or lose the opportunity to choose the officials who are to run the
government especially in national elections.

Despite such registration, the animus

revertendi to his home, to his domicile or residence of origin has not forsaken him.
This may be the explanation why the registration of a voter in a place other than his
residence of origin has not been deemed sufficient to consider abandonment or loss of such
residence of origin.
In other words, residence in this provision refers to two residence qualifications:
residence in the Philippines and residence in the place where he will vote. As far as
residence in the Philippines is concerned, the word residence means domicile, but as far as
residence in the place where he will actually cast his ballot is concerned, the meaning seems
to be different. He could have a domicile somewhere else and yet he is a resident of a place
for six months and he is allowed to vote there. So that there may be serious constitutional
obstacles to absentee voting, unless the vote of the person who is absent is a vote
which will be considered as cast in the place of his domicile.
MR. OPLE. Thank you for citing the jurisprudence.
It gives me scant comfort thinking of about two million Filipinos who should enjoy the right of
suffrage, at least a substantial segment of these overseas Filipino communities.

The

Committee, of course, is aware that when this Article of the Constitution explicitly and
unequivocally extends the right of effective suffrage to Filipinos abroad, this will call for a
logistical exercise of global proportions.

In effect, this will require budgetary and

administrative commitments on the part of the Philippine government, mainly through the
COMELEC and the Ministry of Foreign Affairs, and perhaps, a more extensive elaboration of
this mechanism that will be put in place to make effective the right to vote. Therefore,
seeking shelter in some wise jurisprudence of the past may not be sufficient to
meet the demands of the right of suffrage for Filipinos abroad that I have
mentioned. But I want to thank the Committee for saying that an amendment to this effect
may be entertained at the proper time. . . .

...

...
48

[23][33]

(Emphasis supplied)

Thus, the Constitutional Commission recognized the fact that while millions of Filipinos
reside abroad principally for economic reasons and hence they contribute in no small
measure to the economic uplift of this country, their voices are marginal insofar as the
choice of this countrys leaders is concerned.
The Constitutional Commission realized that under the laws then existing and considering
the novelty of the system of absentee voting in this jurisdiction, vesting overseas Filipinos
with the right to vote would spawn constitutional problems especially because the
Constitution itself provides for the residency requirement of voters:
MR. REGALADO. Before I act on that, may I inquire from Commissioner Monsod if the term
absentee voting also includes transient voting; meaning, those who are, let us say,
studying in Manila need not go back to their places of registration, for instance, in Mindanao,
to cast their votes.
MR. MONSOD. I think our provision is for absentee voting by Filipinos abroad.
MR. REGALADO. How about those people who cannot go back to the places where they are
registered?
MR. MONSOD. Under the present Election Code, there are provisions for allowing students
and military people who are temporarily in another place to register and vote. I believe that
those situations can be covered by the Omnibus Election Code. The reason we want
absentee voting to be in the Constitution as a mandate to the legislature is that
there could be inconsistency on the residence rule if it is just a question of
legislation by Congress. So, by allowing it and saying that this is possible, then
legislation can take care of the rest.[24][34] (Emphasis supplied)
Thus, Section 2, Article V of the Constitution came into being to remove any doubt as to the
inapplicability of the residency requirement in Section 1.

It is precisely to avoid any

problems that could impede the implementation of its pursuit to enfranchise the largest
number of qualified Filipinos who are not in the Philippines that the Constitutional
Commission explicitly mandated Congress to provide a system for overseas absentee voting.
The discussion of the Constitutional Commission on the effect of the residency requirement
prescribed by Section 1, Article V of the Constitution on the proposed system of absentee
voting for qualified Filipinos abroad is enlightening:
MR. SUAREZ. May I just be recognized for a clarification. There are certain qualifications for
the exercise of the right of suffrage like having resided in the Philippines for at least one
year and in the place where they propose to vote for at least six months preceding the
elections. What is the effect of these mandatory requirements on the matter of the exercise
of the right of suffrage by the absentee voters like Filipinos abroad?
THE PRESIDENT. Would Commissioner Monsod care to answer?
MR. MONSOD. I believe the answer was already given by Commissioner Bernas, that the
domicile requirements as well as the qualifications and disqualifications would be the same.
THE PRESIDENT. Are we leaving it to the legislature to devise the system?
FR. BERNAS. I think there is a very legitimate problem raised there.
THE PRESIDENT. Yes.
MR. BENGZON. I believe Commissioner Suarez is clarified.
FR. BERNAS.

But I think it should be further clarified with regard to the residence

requirement or the place where they vote in practice; the understanding is that it is flexible.
For instance, one might be a resident of Naga or domiciled therein, but he satisfies the
requirement of residence in Manila, so he is able to vote in Manila.
49

MR. TINGSON. Madam President, may I then suggest to the Committee to change the word
Filipinos to QUALIFIED FILIPINO VOTERS. Instead of VOTING BY FILIPINOS ABROAD, it
should be QUALIFIED FILIPINO VOTERS. If the Committee wants QUALIFIED VOTERS LIVING
ABROAD, would that not satisfy the requirement?
THE PRESIDENT. What does Commissioner Monsod say?
MR. MONSOD. Madam President, I think I would accept the phrase QUALIFIED FILIPINOS
ABROAD because QUALIFIED would assume that he has the qualifications and none of the
disqualifications to vote.
MR. TINGSON. That is right. So does the Committee accept?
FR. BERNAS. QUALIFIED FILIPINOS ABROAD?
THE PRESIDENT. Does the Committee accept the amendment?
MR. REGALADO. Madam President.
THE PRESIDENT. Commissioner Regalado is recognized.
MR. REGALADO. When Commissioner Bengzon asked me to read my proposed amendment,
I specifically stated that the National Assembly shall prescribe a system which will enable
qualified

citizens,

temporarily absent from the

Philippines, to

vote.

According to

Commissioner Monsod, the use of the phrase absentee voting already took that into
account as its meaning. That is referring to qualified Filipino citizens temporarily abroad.
MR. MONSOD. Yes, we accepted that. I would like to say that with respect to registration we
will leave it up to the legislative assembly, for example, to require where the registration is.
If it is, say, members of the diplomatic corps who may be continuously abroad for a long
time, perhaps, there can be a system of registration in the embassies. However, we do not
like to preempt the legislative assembly.
THE PRESIDENT. Just to clarify, Commissioner Monsods amendment is only to provide a
system.
MR. MONSOD. Yes.
THE PRESIDENT. The Commissioner is not stating here that he wants new qualifications for
these absentee voters.
MR. MONSOD.

That is right.

They must have the qualifications and none of the

disqualifications.
THE PRESIDENT. It is just to devise a system by which they can vote.
MR. MONSOD. That is right, Madam President.[25][35] (Emphasis supplied)
Clearly therefrom, the intent of the Constitutional Commission is to entrust to Congress the
responsibility of devising a system of absentee voting. The qualifications of voters as stated
in Section 1 shall remain except for the residency requirement. This is in fact the reason why
the Constitutional Commission opted for the term qualified Filipinos abroad with respect to
the system of absentee voting that Congress should draw up. As stressed by Commissioner
Monsod, by the use of the adjective qualified with respect to Filipinos abroad, the
assumption is that they have the qualifications and none of the disqualifications to vote.
In fine-tuning the provision on absentee voting, the Constitutional Commission discussed
how the system should work:
MR. SUAREZ. For clarification purposes, we just want to state for the record that in the case
of qualified Filipino citizens residing abroad and exercising their right of suffrage, they can
cast their votes for the candidates in the place where they were registered to vote in the
Philippines. So as to avoid any complications, for example, if they are registered in Angeles
City, they could not vote for a mayor in Naga City.
In other words, if that qualified voter is registered in Angeles City, then he can vote only for
50

the local and national candidates in Angeles City. I just want to make that clear for the
record.
MR. REGALADO. Madam President.
THE PRESIDENT. What does Commissioner Regalado say?
MR. REGALADO. I just want to make a note on the statement of Commissioner Suarez that
this envisions Filipinos residing abroad. The understanding in the amendment is that the
Filipino is temporarily abroad.

He may not be actually residing abroad; he may just be

there on a business trip. It just so happens that the day before the elections he has to fly to
the United States, so he could not cast his vote. He is temporarily abroad, but not residing
there. He stays in a hotel for two days and comes back. This is not limited only to
Filipinos temporarily residing abroad. But as long as he is temporarily abroad on
the date of the elections, then he can fall within the prescription of Congress in
that situation.
MR. SUAREZ. I thank the Commissioner for his further clarification. Precisely, we need this
clarification on record.
MR. MONSOD. Madam President, to clarify what we mean by temporarily abroad, it
need not be on very short trips. One can be abroad on a treaty traders visa. Therefore,
when we talk about registration, it is possible that his residence is in Angeles and he would
be able to vote for the candidates in Angeles, but Congress or the Assembly may
provide the procedure for registration, like listing ones name, in a registry list in
the embassy abroad. That is still possible under the system.
FR. BERNAS. Madam President, just one clarification if Commissioner Monsod agrees with
this.
Suppose we have a situation of a child of a diplomatic officer who reaches the voting age
while living abroad and he has never registered here. Where will he register? Will he be a
registered voter of a certain locality in the Philippines?
MR. MONSOD. Yes, it is possible that the system will enable that child to comply with the
registration requirements in an embassy in the United States and his name is then entered
in the official registration book in Angeles City, for instance.
FR. BERNAS. In other words, he is not a registered voter of Los Angeles, but a registered
voter of a locality here.
MR. MONSOD. That is right. He does not have to come home to the Philippines to comply
with the registration procedure here.
FR. BERNAS. So, he does not have to come home.
MR. BENGZON. Madam President, the Floor Leader wishes to inquire if there are more
clarifications needed from the body.
Also, the Floor Leader is happy to announce that there are no more registered
Commissioners to propose amendments.

So I move that we close the period of

amendments.
[26][36]

(Emphasis supplied)

It is clear from these discussions of the members of the Constitutional Commission that they
intended to enfranchise as much as possible all Filipino citizens abroad who have not
abandoned their domicile of origin. The Commission even intended to extend to young
Filipinos who reach voting age abroad whose parents domicile of origin is in the Philippines,
and consider them qualified as voters for the first time.
It is in pursuance of that intention that the Commission provided for Section 2 immediately
after the residency requirement of Section 1. By the doctrine of necessary implication in
51

statutory construction, which may be applied in construing constitutional provisions, [27][37] the
strategic location of Section 2 indicates that the Constitutional Commission provided for an
exception to the actual residency requirement of Section 1 with respect to qualified Filipinos
abroad. The same Commission has in effect declared that qualified Filipinos who are not in
the Philippines may be allowed to vote even though they do not satisfy the residency
requirement in Section 1, Article V of the Constitution.
That Section 2 of Article V of the Constitution is an exception to the residency requirement
found in Section 1 of the same Article was in fact the subject of debate when Senate Bill No.
2104, which became R.A. No. 9189, was deliberated upon on the Senate floor, thus:
Senator Arroyo. Mr. President, this bill should be looked into in relation to the constitutional
provisions. I think the sponsor and I would agree that the Constitution is supreme in any
statute that we may enact.
Let me read Section 1, Article V, of the Constitution entitled, Suffrage. It says:
Section 1. Suffrage may be exercised by all citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen years of age, and who shall have resided in the
Philippines for at least one year and in the place wherein they propose to vote for at least six
months immediately preceding the election.
Now, Mr. President, the Constitution says, who shall have resided in the Philippines. They
are permanent immigrants. They have changed residence so they are barred under the
Constitution. This is why I asked whether this committee amendment which in fact does not
alter the original text of the bill will have any effect on this?
Senator Angara. Good question, Mr. President. And this has been asked in various fora.
This is in compliance with the Constitution. One, the interpretation here of residence is
synonymous with domicile.
As the gentleman and I know, Mr. President, domicile is the intent to return to ones home .
And the fact that a Filipino may have been physically absent from the Philippines
and may be physically a resident of the United States, for example, but has a
clear intent to return to the Philippines, will make him qualified as a resident of
the Philippines under this law.
This is consistent, Mr. President, with the constitutional mandate that we that Congress
must provide a franchise to overseas Filipinos.
If we read the Constitution and the suffrage principle literally as demanding
physical presence, then there is no way we can provide for offshore voting to our
offshore kababayan, Mr. President.
Senator Arroyo. Mr. President, when the Constitution says, in Section 2 of Article V, it
reads: The Congress shall provide a system for securing the secrecy and sanctity of the
ballot as well as a system for absentee voting by qualified Filipinos abroad.
The key to this whole exercise, Mr. President, is qualified. In other words,
anything that we may do or say in granting our compatriots abroad must be
anchored on the proposition that they are qualified. Absent the qualification, they
cannot vote. And residents (sic) is a qualification.
I will lose votes here from permanent residents so-called green-card holders, but the
Constitution is the Constitution. We cannot compromise on this. The Senate cannot be a
party to something that would affect or impair the Constitution.
Look at what the Constitution says In the place wherein they propose to vote for at least
six months immediately preceding the election.
Mr. President, all of us here have run (sic) for office.
52

I live in Makati. My neighbor is Pateros where Senator Cayetano lives. We are separated only
by a creek. But one who votes in Makati cannot vote in Pateros unless he resides in Pateros
for six months. That is how restrictive our Constitution is. I am not talking even about the
Election Code. I am talking about the Constitution.
As I have said, if a voter in Makati would want to vote in Pateros, yes, he may do so. But he
must do so, make the transfer six months before the election, otherwise, he is not qualified
to vote.
That is why I am raising this point because I think we have a fundamental difference here.
Senator Angara. It is a good point to raise, Mr. President. But it is a point already welldebated even in the constitutional commission of 1986. And the reason Section 2 of
Article

was

placed

immediately

after

the

six-month/one-year

residency

requirement is to demonstrate unmistakably that Section 2 which authorizes

absentee

voting

is

an

exception

to

the

six-month/one-year

residency

requirement. That is the first principle, Mr. President, that one must remember.
The second reason, Mr. President, is that under our jurisprudence and I think this is so wellentrenched that one need not argue about it residency has been interpreted as
synonymous with domicile.
But the third more practical reason, Mr. President, is, if we follow the
interpretation of the gentleman, then it is legally and constitutionally impossible
to give a franchise to vote to overseas Filipinos who do not physically live in the
country, which is quite ridiculous because that is exactly the whole point of this
exercise to enfranchise them and empower them to vote.
[28][38]

(Emphasis supplied)

Accordingly, Section 4 of R.A. No. 9189 provides for the coverage of the absentee voting
process, to wit:
SEC. 4. Coverage. All citizens of the Philippines abroad, who are not otherwise disqualified
by law, at least eighteen (18) years of age on the day of elections, may vote for president,
vice-president, senators and party-list representatives.
which does not require physical residency in the Philippines; and Section 5 of the assailed
law which enumerates those who are disqualified, to wit:
SEC. 5. Disqualifications. The following shall be disqualified from voting under this Act:
a) Those who have lost their Filipino citizenship in accordance with Philippine laws;
b)

Those who have expressly renounced their Philippine citizenship and who have pledged

allegiance to a foreign country;

c)

Those who have committed and are convicted in a final judgment by a court or tribunal

of an offense punishable by imprisonment of not less than one (1) year, including those who
have committed and been found guilty of Disloyalty as defined under Article 137 of the
Revised Penal Code, such disability not having been removed by plenary pardon or amnesty:
Provided, however, That any person disqualified to vote under this subsection shall
automatically acquire the right to vote upon expiration of five (5) years after service of
sentence; Provided, further, That the Commission may take cognizance of final judgments
issued by foreign courts or tribunals only on the basis of reciprocity and subject to the
formalities and processes prescribed by the Rules of Court on execution of judgments;
d)

An immigrant or a permanent resident who is recognized as such in the host country,

unless he/she executes, upon registration, an affidavit prepared for the purpose by the
Commission declaring that he/she shall resume actual physical permanent residence in the
Philippines not later than three (3) years from approval of his/her registration under this Act.
53

Such affidavit shall also state that he/she has not applied for citizenship in another country.
Failure to return shall be cause for the removal of the name of the immigrant or permanent
resident

from

the

National

Registry

of

Absentee

Voters

and

his/her

permanent

disqualification to vote in absentia.

e)

Any citizen of the Philippines abroad previously declared insane or incompetent by

competent authority in the Philippines or abroad, as verified by the Philippine embassies,

consulates or foreign service establishments concerned, unless such competent authority
subsequently certifies that such person is no longer insane or incompetent.
As finally approved into law, Section 5(d) of R.A. No. 9189 specifically disqualifies an
immigrant or permanent resident who is recognized as such in the host country because
immigration or permanent residence in another country implies renunciation of ones
residence in his country of origin. However, same Section allows an immigrant and
permanent resident abroad to register as voter for as long as he/she executes an affidavit to
show that he/she has not abandoned his domicile in pursuance of the constitutional intent
expressed in Sections 1 and 2 of Article V that all citizens of the Philippines not otherwise
disqualified by law must be entitled to exercise the right of suffrage and, that Congress
must establish a system for absentee voting; for otherwise, if actual, physical residence in
the Philippines is required, there is no sense for the framers of the Constitution to mandate
Congress to establish a system for absentee voting.
Contrary to the claim of petitioner, the execution of the affidavit itself is not the enabling or
enfranchising act. The affidavit required in Section 5(d) is not only proof of the intention of
the immigrant or permanent resident to go back and resume residency in the Philippines,
but more significantly, it serves as an explicit expression that he had not in fact abandoned
his domicile of origin. Thus, it is not correct to say that the execution of the affidavit under
Section 5(d) violates the Constitution that proscribes provisional registration or a promise
by a voter to perform a condition to be qualified to vote in a political exercise.
To repeat, the affidavit is required of immigrants and permanent residents abroad because
by their status in their host countries, they are presumed to have relinquished their intent to
return to this country; thus, without the affidavit, the presumption of abandonment of
Philippine domicile shall remain.
Further perusal of the transcripts of the Senate proceedings discloses another reason why
the Senate required the execution of said affidavit. It wanted the affiant to exercise the
option to return or to express his intention to return to his domicile of origin and not to
preempt that choice by legislation. Thus:
Senator Villar. Yes, we are going back.
It states that: For Filipino immigrants and those who have acquired permanent resident
status abroad, a requirement for the registration is the submission of a Sworn Declaration
of Intent to Return duly sworn before any Philippine embassy or consulate official authorized
to administer oath
Mr. President, may we know the rationale of this provision? Is the purpose of this Sworn
Declaration to include only those who have the intention of returning to be qualified to
exercise the right of suffrage? What if the Filipino immigrant has no purpose of returning? Is
he automatically disbarred from exercising this right to suffrage?
Senator Angara. The rationale for this, Mr. President, is that we want to be
expansive and all-inclusive in this law. That as long as he is a Filipino, no matter
whether he is a green-card holder in the U.S. or not, he will be authorized to
vote.

But if he is already a green-card holder, that means he has acquired

54

permanent residency in the United States, then he must indicate an intention to

return. This is what makes for the definition of domicile.

And to acquire the vote,

we thought that we would require the immigrants and the green-card holders . . . Mr.
President, the three administration senators are leaving, maybe we may ask for a vote
[Laughter].
Senator Villar. For a merienda, Mr. President.
Senator Angara. Mr. President, going back to the business at hand. The rationale for the
requirement that an immigrant or a green-card holder should file an affidavit that he will go
back to the Philippines is that, if he is already an immigrant or a green-card holder, that
means he may not return to the country any more and that contradicts the definition of
domicile under the law.
But what we are trying to do here, Mr. President, is really provide the choice to
the voter. The voter, after consulting his lawyer or after deliberation within the family, may
decide No, I think we are risking our permanent status in the United States if we file an
affidavit that we want to go back. But we want to give him the opportunity to make
that decision. We do not want to make that decision for him.

[29][39]

(Emphasis

supplied)
The jurisprudential declaration in Caasi vs. Court of Appeals that green card holders are
disqualified to run for any elective office finds no application to the present case because
the Caasi case did not, for obvious reasons, consider the absentee voting rights of Filipinos
who are immigrants and permanent residents in their host countries.
In the advent of The Overseas Absentee Voting Act of 2003 or R.A. 9189, they may still be
considered as a qualified citizen of the Philippines abroad upon fulfillment of the
requirements of registration under the new law for the purpose of exercising their right of
suffrage.
It must be emphasized that Section 5(d) does not only require an affidavit or a promise to
resume actual physical permanent residence in the Philippines not later than three years
from approval of his/her registration, the Filipinos abroad must also declare that they have
not applied for citizenship in another country. Thus, they must return to the Philippines;
otherwise, their failure to return shall be cause for the removal of their names from the
National Registry of Absentee Voters and his/her permanent disqualification to vote in
absentia.
Thus, Congress crafted a process of registration by which a Filipino voter permanently
residing abroad who is at least eighteen years old, not otherwise disqualified by law, who
has not relinquished Philippine citizenship and who has not actually abandoned his/her
intentions to return to his/her domicile of origin, the Philippines, is allowed to register and
vote in the Philippine embassy, consulate or other foreign service establishments of the
place which has jurisdiction over the country where he/she has indicated his/her address for
purposes of the elections, while providing for safeguards to a clean election.
Thus, Section 11 of R.A. No. 9189 provides:
SEC. 11. Procedure for Application to Vote in Absentia.
11.1.

Every qualified citizen of the Philippines abroad whose application for

registration has been approved, including those previously registered under Republic Act No.
8189, shall, in every national election, file with the officer of the embassy, consulate or other
foreign service establishment authorized by the Commission, a sworn written application to
vote in a form prescribed by the Commission. The authorized officer of such embassy,
consulate or other foreign service establishment shall transmit to the Commission the said
55

application to vote within five (5) days from receipt thereof. The application form shall be
accomplished in triplicate and submitted together with the photocopy of his/her overseas
absentee voter certificate of registration.
11.2.

Every application to vote in absentia may be done personally at, or by mail to,

the embassy, consulate or foreign service establishment, which has jurisdiction over the
country where he/she has indicated his/her address for purposes of the elections.
11.3.

Consular and diplomatic services rendered in connection with the overseas

absentee voting processes shall be made available at no cost to the overseas absentee
voter.
Contrary to petitioners claim that Section 5(d) circumvents the Constitution, Congress
enacted the law prescribing a system of overseas absentee voting in compliance with the
constitutional mandate. Such mandate expressly requires that Congress provide a system of
absentee voting that necessarily presupposes that the qualified citizen of the Philippines
abroad is not physically present in the country. The provisions of Sections 5(d) and 11 are
components of the system of overseas absentee voting established by R.A. No. 9189. The
qualified Filipino abroad who executed the affidavit is deemed to have retained his domicile
in the Philippines. He is presumed not to have lost his domicile by his physical absence from
this country. His having become an immigrant or permanent resident of his host country
does not necessarily imply an abandonment of his intention to return to his domicile of
origin, the Philippines. Therefore, under the law, he must be given the opportunity to
express that he has not actually abandoned his domicile in the Philippines by executing the
affidavit required by Sections 5(d) and 8(c) of the law.
Petitioners speculative apprehension that the implementation of Section 5(d) would affect
the credibility of the elections is insignificant as what is important is to ensure that all those
who possess the qualifications to vote on the date of the election are given the opportunity
and permitted to freely do so. The COMELEC and the Department of Foreign Affairs have
enough resources and talents to ensure the integrity and credibility of any election
conducted pursuant to R.A. No. 9189.
As to the eventuality that the Filipino abroad would renege on his undertaking to return to
the Philippines, the penalty of perpetual disenfranchisement provided for by Section 5(d)
would suffice to serve as deterrence to non-compliance with his/her undertaking under the
affidavit.
Petitioner argues that should a sizable number of immigrants renege on their promise to
return, the result of the elections would be affected and could even be a ground to contest
the proclamation of the winning candidates and cause further confusion and doubt on the
integrity of the results of the election. Indeed, the probability that after an immigrant has
exercised the right to vote, he shall opt to remain in his host country beyond the third year
from the execution of the affidavit, is not farfetched. However, it is not for this Court to
determine the wisdom of a legislative exercise. As expressed in Taada vs. Tuvera,[30][40] the
Court is not called upon to rule on the wisdom of the law or to repeal it or modify it if we find
it impractical.
Congress itself was conscious of said probability and in fact, it has addressed the expected
problem. Section 5(d) itself provides for a deterrence which is that the Filipino who fails to
return as promised stands to lose his right of suffrage. Under Section 9, should a registered
overseas absentee voter fail to vote for two consecutive national elections, his name may be
ordered removed from the National Registry of Overseas Absentee Voters.
Other serious legal questions that may be raised would be: what happens to the votes cast
56

by the qualified voters abroad who were not able to return within three years as promised?
What is the effect on the votes cast by the non-returnees in favor of the winning
candidates? The votes cast by qualified Filipinos abroad who failed to return within three
years shall not be invalidated because they were qualified to vote on the date of the
elections, but their failure to return shall be cause for the removal of the names of the
immigrants or permanent residents from the National Registry of Absentee Voters and their
permanent disqualification to vote in absentia.
In fine, considering the underlying intent of the Constitution, the Court does not find Section
5(d) of R.A. No. 9189 as constitutionally defective.
B.

Is Section 18.5 of R.A. No. 9189 in relation to Section 4 of the same Act

in contravention of Section 4, Article VII of the Constitution?

Section 4 of R.A. No. 9189 provides that the overseas absentee voter may vote for president,
vice-president, senators and party-list representatives.
Section 18.5 of the same Act provides:
SEC. 18. On-Site Counting and Canvassing.
......

...

18. 5

The canvass of votes shall not cause the delay of the proclamation of a winning

candidate if the outcome of the election will not be affected by the results thereof.
Notwithstanding

the

foregoing,

the

Commission

is

empowered

to

order

the

proclamation of winning candidates despite the fact that the scheduled election has not
taken place in a particular country or countries, if the holding of elections therein has been
rendered impossible by events, factors and circumstances peculiar to such country or
countries, in which events, factors and circumstances are beyond the control or influence of
the Commission. (Emphasis supplied)
Petitioner claims that the provision of Section 18.5 of R.A. No. 9189 empowering the
COMELEC to order the proclamation of winning candidates insofar as it affects the canvass
of votes and proclamation of winning candidates for president and vice-president, is
unconstitutional because it violates the following provisions of paragraph 4, Section 4 of
Article VII of the Constitution:
SEC. 4 . . .
The returns of every election for President and Vice-President, duly certified by the board of
canvassers of each province or city, shall be transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the certificates of canvass, the President of the
Senate shall, not later than thirty days after the day of the election, open all the certificates
in the presence of the Senate and the House of Representatives in joint public session, and
the Congress, upon determination of the authenticity and due execution thereof in the
manner provided by law, canvass the votes.
The person having the highest number of votes shall be proclaimed elected, but in case two
or more shall have an equal and highest number of votes, one of them shall forthwith be
chosen by the vote of a majority of all the Members of both Houses of the Congress, voting
separately.
The Congress shall promulgate its rules for the canvassing of the certificates.
...
which gives to Congress the duty to canvass the votes and proclaim the winning candidates
for president and vice-president.
The Solicitor General asserts that this provision must be harmonized with paragraph 4,
Section 4, Article VII of the Constitution and should be taken to mean that COMELEC can
57

only proclaim the winning Senators and party-list representatives but not the President and
Vice-President.[31][41]
Respondent COMELEC has no comment on the matter.
Indeed, the phrase, proclamation of winning candidates, in Section 18.5 of R.A. No. 9189 is
far too sweeping that it necessarily includes the proclamation of the winning candidates for
the presidency and the vice-presidency.
Section 18.5 of R.A. No. 9189 appears to be repugnant to Section 4, Article VII of the
Constitution only insofar as said Section totally disregarded the authority given to Congress
by the Constitution to proclaim the winning candidates for the positions of president and
vice-president.
In addition, the Court notes that Section 18.4 of the law, to wit:
18.4. . . . Immediately upon the completion of the canvass, the chairman of the Special
Board of Canvassers shall transmit via facsimile, electronic mail, or any other means of
transmission equally safe and reliable the Certificates of Canvass and the Statements of
Votes to the Commission, . . . [Emphasis supplied]
clashes with paragraph 4, Section 4, Article VII of the Constitution which provides that the
returns of every election for President and Vice-President shall be certified by the board of
canvassers to Congress.
Congress could not have allowed the COMELEC to usurp a power that constitutionally
belongs to it or, as aptly stated by petitioner, to encroach on the power of Congress to
canvass the votes for president and vice-president and the power to proclaim the winners
for the said positions. The provisions of the Constitution as the fundamental law of the land
should be read as part of The Overseas Absentee Voting Act of 2003 and hence, the
canvassing of the votes and the proclamation of the winning candidates for president and
vice-president for the entire nation must remain in the hands of Congress.
C.

Are Sections 19 and 25 of R.A. No. 9189 in violation of Section 1, Article

IX-A of the Constitution?

Petitioner avers that Sections 19 and 25 of R.A. No. 9189 violate Article IX-A (Common
Provisions) of the Constitution, to wit:
Section 1. The Constitutional Commissions, which shall be independent, are the Civil
Service Commission, the Commission on Elections, and the Commission on Audit. (Emphasis
supplied)
He submits that the creation of the Joint Congressional Oversight Committee with the power
to review, revise, amend and approve the Implementing Rules and Regulations promulgated
by the COMELEC, R.A. No. 9189 intrudes into the independence of the COMELEC which, as a
constitutional body, is not under the control of either the executive or legislative
departments of government; that only the COMELEC itself can promulgate rules and
regulations which may be changed or revised only by the majority of its members; and that
should the rules promulgated by the COMELEC violate any law, it is the Court that has the
power to review the same via the petition of any interested party, including the legislators.
It is only on this question that respondent COMELEC submitted its Comment. It agrees with
the petitioner that Sections 19 and 25 of R.A. No. 9189 are unconstitutional. Like the
petitioner, respondent COMELEC anchors its claim of unconstitutionality of said Sections
upon Section 1, Article IX-A of the Constitution providing for the independence of the
constitutional commissions such as the COMELEC. It asserts that its power to formulate
rules and regulations has been upheld in Gallardo vs. Tabamo, Jr.[32][42] where this Court held
that the power of the COMELEC to formulate rules and regulations is implicit in its power to
58

implement regulations under Section 2(1) of Article IX-C [33][43] of the Constitution. COMELEC
joins the petitioner in asserting that as an independent constitutional body, it may not be
subject to interference by any government instrumentality and that only this Court may
review COMELEC rules and only in cases of grave abuse of discretion.
The COMELEC adds, however, that another provision, vis--vis its rule-making power, to wit:
SEC. 17. Voting by Mail.
17.1. For the May, 2004 elections, the Commission shall authorize voting by mail in not
more than three (3) countries, subject to the approval of the Congressional Oversight
Committee.

Voting by mail may be allowed in countries that satisfy the following

conditions:
a)

Where the mailing system is fairly well-developed and secure to prevent occasion for

fraud;
b)

Where there exists a technically established identification system that would preclude

multiple or proxy voting; and

c)

Where the system of reception and custody of mailed ballots in the embassies,

consulates and other foreign service establishments concerned are adequate and wellsecured.
Thereafter, voting by mail in any country shall be allowed only upon review and approval of
the Joint Congressional Oversight Committee.
......

. . . (Emphasis supplied)

is likewise unconstitutional as it violates Section 1, Article IX-A mandating the independence

of constitutional commissions.
The Solicitor General takes exception to his prefatory statement that the constitutional
challenge must fail and agrees with the petitioner that Sections 19 and 25 are invalid and
unconstitutional on the ground that there is nothing in Article VI of the Constitution on
Legislative Department that would as much as imply that Congress has concurrent power to
enforce and administer election laws with the COMELEC; and by the principles of exclusio
unius est exclusio alterius and expressum facit cessare tacitum, the constitutionally
enumerated powers of Congress circumscribe its authority to the exclusion of all others.
The parties are unanimous in claiming that Sections 19, 25 and portions of Section 17.1 are
unconstitutional. Thus, there is no actual issue forged on this question raised by petitioner.
However, the Court finds it expedient to expound on the role of Congress through the Joint
Congressional Oversight Committee (JCOC) vis--vis the independence of the COMELEC, as a
constitutional body.
R.A. No. 9189 created the JCOC, as follows:
SEC. 25. Joint Congressional Oversight Committee. A Joint Congressional Oversight
Committee is hereby created, composed of the Chairman of the Senate Committee on
Constitutional Amendments, Revision of Codes and Laws, and seven (7) other Senators
designated by the Senate President, and the Chairman of the House Committee on Suffrage
and Electoral Reforms, and seven (7) other Members of the House of Representatives
designated by the Speaker of the House of Representatives: Provided, That, of the seven (7)
members to be designated by each House of Congress, four (4) should come from the
majority and the remaining three (3) from the minority.
The Joint Congressional Oversight Committee shall have the power to monitor and
evaluate the implementation of this Act. It shall review, revise, amend and
approve

the

Implementing

Rules

and

Regulations

promulgated

by

the

Commission. (Emphasis supplied)

59

SEC. 19. Authority of the Commission to Promulgate Rules. The Commission shall issue
the necessary rules and regulations to effectively implement the provisions of this Act within
sixty (60) days from the effectivity of this Act.

The Implementing Rules and

Regulations shall be submitted to the Joint Congressional Oversight Committee

created by virtue of this Act for prior approval.
......

. . . (Emphasis supplied)

Composed of Senators and Members of the House of Representatives, the Joint

Congressional Oversight Committee (JCOC) is a purely legislative body. There is no question
that the authority of Congress to monitor and evaluate the implementation of R.A. No.
9189 is geared towards possible amendments or revision of the law itself and thus, may be
performed in aid of its legislation.
However, aside from its monitoring and evaluation functions, R.A. No. 9189 gives to the
JCOC the following functions: (a) to review, revise, amend and approve the Implementing
Rules and Regulations (IRR) promulgated by the COMELEC [Sections 25 and 19]; and (b)
subject to the approval of the JCOC [Section 17.1], the voting by mail in not more than three
countries for the May 2004 elections and in any country determined by COMELEC.
The ambit of legislative power under Article VI of the Constitution is circumscribed by other
constitutional provisions.

One such provision is Section 1 of Article IX-A of the 1987

Constitution ordaining that constitutional commissions such as the COMELEC shall be

independent.
Interpreting Section 1, Article X of the 1935 Constitution providing that there shall be an
independent COMELEC, the Court has held that [w]hatever may be the nature of the
functions of the Commission on Elections, the fact is that the framers of the Constitution
wanted it to be independent from the other departments of the Government. [34][44] In an
earlier case, the Court elucidated:
The Commission on Elections is a constitutional body. It is intended to play a distinct and
important part in our scheme of government. In the discharge of its functions, it should not
be hampered with restrictions that would be fully warranted in the case of a less responsible
organization.

The Commission may err, so may this court also. It should be allowed

considerable latitude in devising means and methods that will insure the accomplishment of
the great objective for which it was created free, orderly and honest elections. We may
not agree fully with its choice of means, but unless these are clearly illegal or constitute
gross abuse of discretion, this court should not interfere. Politics is a practical matter, and
political questions must be dealt with realistically not from the standpoint of pure theory.
The Commission on Elections, because of its fact-finding facilities, its contacts with political
strategists, and its knowledge derived from actual experience in dealing with political
controversies, is in a peculiarly advantageous position to decide complex political questions.
[35][45]

(Emphasis supplied)

The Court has no general powers of supervision over COMELEC which is an independent
body except those specifically granted by the Constitution, that is, to review its decisions,
orders and rulings.[36][46] In the same vein, it is not correct to hold that because of its
recognized extensive legislative power to enact election laws, Congress may intrude into the
independence of the COMELEC by exercising supervisory powers over its rule-making
authority.
By virtue of Section 19 of R.A. No. 9189, Congress has empowered the COMELEC to issue
the necessary rules and regulations to effectively implement the provisions of this Act within
sixty days from the effectivity of this Act. This provision of law follows the usual procedure
60

in drafting rules and regulations to implement a law the legislature grants an

administrative agency the authority to craft the rules and regulations implementing the law
it has enacted, in recognition of the administrative expertise of that agency in its particular
field of operation.[37][47] Once a law is enacted and approved, the legislative function is
deemed accomplished and complete. The legislative function may spring back to Congress
relative to the same law only if that body deems it proper to review, amend and revise the
law, but certainly not to approve, review, revise and amend the IRR of the COMELEC.
By vesting itself with the powers to approve, review, amend, and revise the IRR for The
Overseas Absentee Voting Act of 2003, Congress went beyond the scope of its constitutional
authority. Congress trampled upon the constitutional mandate of independence of the
COMELEC. Under such a situation, the Court is left with no option but to withdraw from its
usual reticence in declaring a provision of law unconstitutional.
The second sentence of the first paragraph of Section 19 stating that [t]he Implementing
Rules and Regulations shall be submitted to the Joint Congressional Oversight Committee
created by virtue of this Act for prior approval, and the second sentence of the second
paragraph of Section 25 stating that [i]t shall review, revise, amend and approve the
Implementing Rules and Regulations promulgated by the Commission, whereby Congress,
in both provisions, arrogates unto itself a function not specifically vested by the Constitution,
should be stricken out of the subject statute for constitutional infirmity. Both provisions
brazenly violate the mandate on the independence of the COMELEC.
Similarly, the phrase, subject to the approval of the Congressional Oversight Committee in
the first sentence of Section 17.1 which empowers the Commission to authorize voting by
mail in not more than three countries for the May, 2004 elections; and the phrase, only
upon review and approval of the Joint Congressional Oversight Committee found in the
second paragraph of the same section are unconstitutional as they require review and
approval of voting by mail in any country after the 2004 elections. Congress may not confer
upon itself the authority to approve or disapprove the countries wherein voting by mail shall
be allowed, as determined by the COMELEC pursuant to the conditions provided for in
Section 17.1 of R.A. No. 9189. [38][48] Otherwise, Congress would overstep the bounds of its
constitutional mandate and intrude into the independence of the COMELEC.
During the deliberations, all the members of the Court agreed to adopt the separate opinion
of Justice Reynato S. Puno as part of the ponencia on the unconstitutionality of Sections
17.1, 19 and 25 of R.A. No. 9189 insofar as they relate to the creation of and the powers
given to the Joint Congressional Oversight Committee.
WHEREFORE, the petition is partly GRANTED. The following portions of R.A. No. 9189 are
declared VOID for being UNCONSTITUTIONAL:
a)

The phrase in the first sentence of the first paragraph of Section 17.1, to wit:

subject to the approval of the Joint Congressional Oversight Committee;

b)

The portion of the last paragraph of Section 17.1, to wit: only upon review

and approval of the Joint Congressional Oversight Committee;

c)

The second sentence of the first paragraph of Section 19, to wit:

The

Implementing Rules and Regulations shall be submitted to the Joint Congressional

Oversight Committee created by virtue of this Act for prior approval; and
d)

The second sentence in the second paragraph of Section 25, to wit: It shall review,

revise, amend and approve the Implementing Rules and Regulations promulgated
by the Commission of the same law;

61

for being repugnant to Section 1,

Article

IX-A

mandating

of

the

the

Constitution

independence

of

constitutional commission, such as

COMELEC.
The constitutionality of

Section 18.5 of R.A. No. 9189 is

UPHELD with respect only to the authority

given

to

the

COMELEC

to

proclaim

the

winning candidates for the Senators and

party-list representatives but not as to the
power to canvass the votes and proclaim the
winning candidates for President and VicePresident which is lodged with Congress

under

Section 4, Article VII of the Constitution.

The constitutionality of Section 5(d) is UPHELD.
Pursuant to Section 30 of R.A. No. 9189, the rest of the provisions of said law continues to be
in full force and effect.(Romulo Macalintal v. Comelec, G.R. No. 157013, July 10, 2003)

CASE NO. 11. Facts: Rosalina Lopez was

Filipino father

and

She is

In 1988 she registered herself with the Bureau of

Autralian national

Certificate of Residence
Passport.

in 1943 to a

an Australian mother.

married to a Filipino.
Immigration as an

born in Australia

and was issued an

Alien

.She was issued an Australian

On January 15, 1992 she renounced her

Australian citizenship.
Question: Did Lopez application for ACR and ICR and her being a holder of an Australian
passport constitute her renunciation of Phil. Citizenship?

62

Answer

NO

11: Valles v. COMELEC, 337 SCRA 543 Ruling: No. Under

63, renunciation
Her application for

of citizenship must

ACR and ICR did

renunciation or repudiation

Rico

CASE NO. 12.

Balde was

legitimate son

American).

He

was

be express.

amount to express

of her citizenship.

born

of

American mother

not

CA No.

in 1934 in Chicago,

USA,

Filipino father

as a

and

an

(hence was admittedly both a Filipino and an

continuously

resident

in

the

Philippines. In 1958 at the age of 24 and in 1979 at the age of 45, he applied
with the

Bureau

REGISTRATION (

of

Immigration

for an ALIEN CERTIFICATE OF

ACR) and IMMIGRANT CERTIFICATE OF RESIDENCE (ICR) and was

granted. He had been participating in elections

Philippines as

voter,

however, and was

issued

in the
a Phil.

Passport in 1987.
Question: By

registering twice

Deportation) as an

Answer:
ACT

NO

No.

63,

with the

BID

(Bureau of Immigration and

alien, did he lose his Filipino citizenship?

12. AZNAR v. COMELEC , 185 scra 708 Ruling: No. Under COMMONWEALTH
there

citizenship,

are

three

modes

to

which are relevant to him, namely: by

express renunciation

and by subscribing to an

lose

Filipino

naturalization,

by

oath of allegiance to

a foreign country. His application for an ACR and ICR is not one of them to make
him lose his Phil. Citizenship.

The mere fact that he was a

holder of a certificate stating that he is an

American did not mean that he is no longer a
63

Filipino. An application
a

renunciation

for an

ACR is NOT tantamount to

of Philippine citizenship.

CASE NO. 13: FACTS: Petitioner Ernesto S. Mercado and private respondent Eduardo B.
Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections.
The other one was Gabriel V. Daza III. The results of the election were as follows:
Eduardo B. Manzano=103,853; Ernesto S. Mercado=100,894; Gabriel V. Daza III=54,275.
The proclamation of private respondent was suspended in view of a pending petition for
disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was
not a citizen of the Philippines but of the United States.
In its resolution, dated May 7, 1998, 2 the Second Division of the COMELEC granted the
petition of Mamaril and ordered the cancellation of the certificate of candidacy of private
respondent on the ground that he is a dual citizen and, under 40(d) of the Local
Government Code, persons with dual citizenship are disqualified from running for any
elective position. The COMELEC's Second Division said:
What is presented before the Commission is a petition for disqualification of Eduardo
Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in the May 11, 1998
elections. The petition is based on the ground that the respondent is an American citizen
based on the record of the Bureau of Immigration and misrepresented himself as a naturalborn Filipino citizen.
In his answer to the petition filed on April 27, 1998, the respondent admitted that he is
registered as a foreigner with the Bureau of Immigration under Alien Certificate of
Registration No. B-31632 and alleged that he is a Filipino citizen because he was

born

in 1955 of a Filipino father and a Filipino mother . He

was

born in the United States, San Francisco, California, September 14,

1955,

and

is

considered

in

American

citizen

under

US

Laws.

But

notwithstanding his registration as an American

citizen, he did not lose his Filipino citizenship .
Judging from the foregoing facts, it would appear that respondent Manzano is born a Filipino
and a US citizen. In other words, he holds dual citizenship.
The question presented is whether under our laws, he is disqualified from the position for
which he filed his certificate of candidacy. Is he eligible for the office he seeks to be elected?

Under Section 40(d) of the Local Government Code,

those holding dual citizenship are disqualified from
running for any elective local position.
64

WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano
DISQUALIFIED as candidate for Vice-Mayor of Makati City.
QUESTION: Is the COMELEC ruling correct? Explain.

Answer

NO

COMELEC

13:

petitioner,vs.EDUARDO

BARRIOS

IS

WRONG

MANZANO

and

the

.ERNESTO

COMMISSION

S.
ON

MERCADO,
ELECTIONS,

respondents. G.R. No. 135083 May 26, 1999

The disqualification of private respondent Manzano is being sought under 40 of the Local
Government Code of 1991 (R.A. No. 7160), which declares as disqualified from running for
any elective local position: . . . (d) Those with dual citizenship.
incorporated in the Charter of the City of Makati.
Invoking the maxim

This provision is

[xxxix][8]

dura lex sed lex, petitioner, as well as the Solicitor General,

who sides with him in this case, contends that through 40(d) of the Local Government
Code, Congress has command[ed] in explicit terms the ineligibility of persons possessing
dual allegiance to hold local elective office.
To

begin

dual

with,

allegiance.

The

application
person
[9]

is

citizenship

former

of the

different

is

arises when, as a

different laws

result

of the

from

dual

concurrent

two or more states,

of

simultaneously considered

national

by the said states.[xl]

For instance, such a situation may arise when a person whose parents are citizens of a

state which adheres to the principle of jus sanguinis is born in a state which follows the
doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is
concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV)
of our Constitution, it is possible for the following classes of citizens of the Philippines to
possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the
principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their
fathers country such children are citizens of that country;
(3) Those who marry aliens if by the laws of the latters country the former are considered
citizens, unless by their act or omission they are deemed to have renounced Philippine
citizenship.
There may be other situations in which a citizen of the Philippines may, without performing
any act, be also a citizen of another state; but the above cases are clearly possible given the
constitutional provisions on citizenship.

Dual allegiance,

on the other hand, refers to the situation in which a

person

simultaneously

positive

act,

STATES.

loyalty

to

owes,

by

some

TWO

OR

MORE

While dual citizenship is involuntary, dual allegiance is the result of an

65

individuals volition.
With respect to dual allegiance, Article IV, 5 of the Constitution provides: Dual allegiance
of citizens is inimical to the national interest and shall be dealt with by law. This provision
was included in the 1987 Constitution at the instance of Commissioner Blas F. Ople who
explained its necessity as follows:[xli][10]
. . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I have
circulated a memorandum to the Bernas Committee according to which a dual allegiance and I reiterate a dual allegiance - is larger and more threatening than that of mere double
citizenship which is seldom intentional and, perhaps, never insidious.

That is often a

function of the accident of mixed marriages or of birth on foreign soil. And so, I do not
question double citizenship at all.
What we would like the Committee to consider is to take constitutional cognizance of the
problem of dual allegiance. For example, we all know what happens in the triennial elections
of the Federation of Filipino-Chinese Chambers of Commerce which consists of about 600
chapters all over the country. There is a Peking ticket, as well as a Taipei ticket. Not widely
known is the fact that the Filipino-Chinese community is represented in the Legislative Yuan
of the Republic of China in Taiwan. And until recently, the sponsor might recall, in Mainland
China in the Peoples Republic of China, they have the Associated Legislative Council for
overseas Chinese wherein all of Southeast Asia including some European and Latin countries
were represented, which was dissolved after several years because of diplomatic friction. At
that time, the Filipino-Chinese were also represented in that Overseas Council.
When I speak of double allegiance, therefore, I speak of this unsettled kind of allegiance of
Filipinos, of citizens who are already Filipinos but who, by their acts, may be said to be bound
by a second allegiance, either to Peking or Taiwan. I also took close note of the concern
expressed by some Commissioners yesterday, including Commissioner Villacorta, who were
concerned about the lack of guarantees of thorough assimilation, and especially
Commissioner Concepcion who has always been worried about minority claims on our
natural resources.
Dual allegiance can actually siphon scarce national capital to Taiwan, Singapore, China or
Malaysia, and this is already happening. Some of the great commercial places in downtown
Taipei are Filipino-owned, owned by Filipino-Chinese it is of common knowledge in Manila.
It can mean a tragic capital outflow when we have to endure a capital famine which also
means economic stagnation, worsening unemployment and social unrest.
And so, this is exactly what we ask that the Committee kindly consider incorporating a
new section, probably Section 5, in the article on Citizenship which will read as follows:
DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO
LAW.
In another session of the Commission, Ople spoke on the problem of these citizens with dual
allegiance, thus:[xlii][11]
. . . A significant number of Commissioners expressed their concern about dual citizenship
in the sense that it implies a double allegiance under a double sovereignty which some of us
who spoke then in a freewheeling debate thought would be repugnant to the sovereignty
which pervades the Constitution and to citizenship itself which implies a uniqueness and
which elsewhere in the Constitution is defined in terms of rights and obligations exclusive to
that citizenship including, of course, the obligation to rise to the defense of the State when it
is threatened, and back of this, Commissioner Bernas, is, of course, the concern for national
66

security. In the course of those debates, I think some noted the fact that as a result of the
wave of naturalizations since the decision to establish diplomatic relations with the Peoples
Republic of China was made in 1975, a good number of these naturalized Filipinos still
routinely go to Taipei every October 10; and it is asserted that some of them do renew their
oath of allegiance to a foreign government maybe just to enter into the spirit of the occasion
when the anniversary of the Sun Yat-Sen Republic is commemorated.

And so, I have

detected a genuine and deep concern about double citizenship, with its attendant risk of
double allegiance which is repugnant to our sovereignty and national security. I appreciate
what the Committee said that this could be left to the determination of a future legislature.
But considering the scale of the problem, the real impact on the security of this country,
arising from, let us say, potentially great numbers of double citizens professing double
allegiance, will the Committee entertain a proposed amendment at the proper time that will
prohibit, in effect, or regulate double citizenship?
Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional
Commission was not with dual citizens per se but with naturalized citizens who maintain
their allegiance to their countries of origin even after their naturalization. Hence, the phrase
dual citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be understood as
referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall
under this disqualification. Unlike those with dual allegiance, who must, therefore, be
subject to strict process with respect to the termination of their status, for candidates with
dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they
elect Philippine citizenship to terminate their status as persons with dual citizenship
considering that their condition is the unavoidable consequence of conflicting laws of
different states.

As Joaquin G. Bernas, one of the most perceptive members of the

Constitutional Commission, pointed out: [D]ual citizenship is just a reality imposed on us

because we have no control of the laws on citizenship of other countries. We recognize a
child of a Filipino mother. But whether or not she is considered a citizen of another country
is something completely beyond our control.[xliii][12]
By electing Philippine citizenship, such candidates at the same time forswear allegiance to
the other country of which they are also citizens and thereby terminate their status as dual
citizens. It may be that, from the point of view of the foreign state and of its laws, such an
individual has not effectively renounced his foreign citizenship. That is of no moment as the
following discussion on 40(d) between Senators Enrile and Pimentel clearly shows: [xliv][13]
SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: Any
person with dual citizenship is disqualified to run for any elective local position. Under the
present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but
his father is a foreigner is a natural-born citizen of the Republic. There is no requirement
that such a natural born citizen, upon reaching the age of majority, must elect or give up
Philippine citizenship.
On the assumption that this person would carry two passports, one belonging to the country
of his or her father and one belonging to the Republic of the Philippines, may such a
situation disqualify the person to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he
would want to run for public office, he has to repudiate one of his citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or
the country of the father claims that person, nevertheless, as a citizen?

No one can

renounce. There are such countries in the world.

67

SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect,
be an election for him of his desire to be considered as a Filipino citizen.
SENATOR ENRILE.

But, precisely, Mr. President, the Constitution does not require an

election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at
birth, a citizen without any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentlemans
example, if he does not renounce his other citizenship, then he is opening himself to
question. So, if he is really interested to run, the first thing he should do is to say in the
Certificate of Candidacy that: I am a Filipino citizen, and I have only one citizenship.
SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He
will always have one citizenship, and that is the citizenship invested upon him or her in the
Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that
he also acknowledges other citizenships, then he will probably fall under this disqualification.
This is similar to the requirement that an applicant for naturalization must renounce all
allegiance and fidelity to any foreign prince, potentate, state, or sovereignty [xlv][14] of which
at the time he is a subject or citizen before he can be issued a certificate of naturalization as
a citizen of the Philippines. In Parado v. Republic,[xlvi][15] it was held:
[W]hen a person applying for citizenship by naturalization takes an oath that he renounces
his loyalty to any other country or government and solemnly declares that he owes his
allegiance to the Republic of the Philippines, the condition imposed by law is satisfied and
complied with. The determination whether such renunciation is valid or fully complies with
the provisions of our Naturalization Law lies within the province and is an exclusive
prerogative of our courts. The latter should apply the law duly enacted by the legislative
department of the Republic. No foreign law may or should interfere with its operation and
application. If the requirement of the Chinese Law of Nationality were to be read into our
Naturalization Law, we would be applying not what our legislative department has deemed it
wise to require, but what a foreign government has thought or intended to exact. That, of
course, is absurd. It must be resisted by all means and at all cost. It would be a brazen
encroachment upon the sovereign will and power of the people of this Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco, California on
September 4, 1955, of Filipino parents. Since the Philippines adheres to the principle of jus
sanguinis, while the United States follows the doctrine of jus soli, the parties agree that, at
birth at least, he was a national both of the Philippines and of the United States. However,
the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and
1998, private respondent effectively renounced his U.S. citizenship under American law, so
that now he is solely a Philippine national.
Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is
not sufficient evidence of renunciation and that, in any event, as the alleged renunciation
was made when private respondent was already 37 years old, it was ineffective as it should
have been made when he reached the age of majority.
In holding that by voting in Philippine elections private respondent renounced his American
citizenship, the COMELEC must have in mind 349 of the Immigration and Nationality Act of
the United States, which provided that A person who is a national of the United States,
whether by birth or naturalization, shall lose his nationality by:

. . . (e) Voting in a political

election in a foreign state or participating in an election or plebiscite to determine the

68

sovereignty over foreign territory. To be sure this provision was declared unconstitutional
by the U.S. Supreme Court in Afroyim v. Rusk[xlvii][16] as beyond the power given to the U.S.
Congress to regulate foreign relations. However, by filing a certificate of candidacy when he
ran for his present post, private respondent elected Philippine citizenship and in effect
renounced his American citizenship. Private respondents certificate of candidacy, filed on
March 27, 1998, contained the following statements made under oath:
6.

I AM A FILIPINO CITIZEN (STATE IF NATURAL-BORN OR NATURALIZED)

NATURAL-

BORN
....
10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO,
CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR .
11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT AND DEFEND
THE CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE
THERETO; THAT I WILL OBEY THE LAWS, LEGAL ORDERS AND DECREES PROMULGATED BY
THE DULY CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I
IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR
PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND
CORRECT OF MY OWN PERSONAL KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce his American citizenship,
effectively removing any disqualification he might have as a dual citizen.
v. COMELEC it was held:

Thus, in Frivaldo

[xlviii][17]

It is not disputed that on January 20, 1983 Frivaldo became an American.

Would the

retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40
of the Local Government Code would disqualify him from running for any elective local
position? We answer this question in the negative, as there is cogent reason to hold that
Frivaldo was really STATELESS at the time he took said oath of allegiance and even before
that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he had long
renounced and had long abandoned his American citizenship-long before May 8, 1995. At
best, Frivaldo was stateless in the interim-when he abandoned and renounced his US
citizenship but before he was repatriated to his Filipino citizenship.
On this point, we quote from the assailed Resolution dated December 19, 1995:
By the laws of the United States, petitioner Frivaldo lost his American citizenship when he
took his oath of allegiance to the Philippine Government when he ran for Governor in 1988,
in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the
Philippine Government.
These factual findings that Frivaldo has lost his foreign nationality long before the elections
of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such
findings of the Commission are conclusive upon this Court, absent any showing of
capriciousness or arbitrariness or abuse.
There is, therefore, no merit in petitioners contention that the oath of allegiance contained
in private respondents certificate of candidacy is insufficient to constitute renunciation of
his American citizenship.

Equally without merit is petitioners contention that, to be

effective, such renunciation should have been made upon private respondent reaching the
age of majority since no law requires the election of Philippine citizenship to be made upon
majority age.
Finally, much is made of the fact that private respondent admitted that he is registered as
69

an American citizen in the Bureau of Immigration and Deportation and that he holds an
American passport which he used in his last travel to the United States on April 22, 1997.
There is no merit in this. Until the filing of his certificate of candidacy on March 21, 1998, he
had dual citizenship. The acts attributed to him can be considered simply as the assertion of
his American nationality before the termination of his American citizenship. What this Court
said in Aznar v. COMELEC[xlix][18] applies mutatis mutandis to private respondent in the case at
bar:
. . . Considering the fact that admittedly Osmea was both a Filipino and an American, the
mere fact that he has a Certificate stating he is an American does not mean that he is not
still a Filipino. . . . [T]he Certification that he is an American does not mean that he is not
still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no
express renunciation here of Philippine citizenship; truth to tell, there is even no implied
renunciation of said citizenship. When We consider that the renunciation needed to lose
Philippine citizenship must be express, it stands to reason that there can be no such loss
of Philippine citizenship when there is no renunciation, either express or implied.
To

recapitulate,

by declaring in his certificate of

candidacy that he is a Filipino citizen; that he

is not a permanent resident or immigrant of
another country; that he will defend and
support the Constitution of the Philippines
and bear true faith and allegiance thereto
and

that

he

reservation,
concerned,

does

repudiated

mental

his American

and anything which he may have said before as a dual citizen.

On the other hand, private respondents

Philippines,

without

private respondent has, as far as the laws of this country are

effectively

citizenship

so

oath of allegiance to the

when considered with the fact that he has spent his

youth

and adulthood, received his education, practiced

his profession as an artist, and taken part in past
elections in this country, leaves no doubt of his
election of Philippine citizenship.
His declarations will be taken upon the faith that he will fulfill his undertaking made under
oath. Should he betray that trust, there are enough sanctions for declaring the loss of his
Philippine citizenship through expatriation in appropriate proceedings. In Yu v. DefensorSantiago,[l][19] we sustained the denial of entry into the country of petitioner on the ground
70

that, after taking his oath as a naturalized citizen, he applied for the renewal of his
Portuguese passport and declared in commercial documents executed abroad that he was a
Portuguese national. A similar sanction can be taken against any one who, in electing
Philippine citizenship, renounces his foreign nationality, but subsequently does some act
constituting renunciation of his Philippine citizenship

CASE NO. 14.FACTS: The facts are as follows:

Pursuant to Art. X, 18 of the 1987 Constitution, Congress passed R.A. No. 6734, the Organic
Act for the Autonomous Region in Muslim Mindanao, calling for a plebiscite to be held in the
provinces of Basilan, Cotobato, Davao del Sur, Lanao del Norte, Lanao del Sur, Maguindanao,
Palawan, South Cotabato, Sultan Kudarat, Sulu, Tawi-Tawi, Zamboanga del Norte, and
Zamboanga del Sur, and the cities of Cotabato, Dapitan, Dipolog, General Santos, Iligan,
Marawi, Pagadian, Puerto Princesa and Zamboanga. In the ensuing plebiscite held on
November 16, 1989, four provinces voted in favor of creating an autonomous region. These
are the provinces of Lanao del Sur, Maguindanao, Sulu and Tawi-Tawi. In accordance with the
constitutional provision, these provinces became the Autonomous Region in Muslim
Mindanao.
On the other hand, with respect to provinces and cities not voting in favor of the
Autonomous Region, Art. XIX, 13 of R.A. No. 6734 provides,
That only the provinces and cities voting favorably in such plebiscites shall be included in
the Autonomous Region in Muslim Mindanao. The provinces and cities which in the plebiscite
do not vote for inclusion in the Autonomous Region shall remain in the existing
administrative regions. Provided, however, that the President may, by administrative
determination, merge the existing regions.
Pursuant to the authority granted by this provision, then President Corazon C. Aquino issued
on October 12, 1990 Executive Order No. 429, "providing for the Reorganization of the
Administrative Regions in Mindanao." Under this Order, as amended by E.O. No. 439
(1)

Misamis Occidental, at present part of Region X, will become part of Region IX.

(2)

Oroquieta City, Tangub City and Ozamiz City, at present parts of Region X will

become parts of Region IX.

(3)

South Cotobato, at present a part of Region XI, will become part of Region XII.

(4)

General Santos City, at present part of Region XI, will become part of Region XII.

(5)

Lanao del Norte, at present part of Region XII, will become part of Region IX.

(6)

Iligan City and Marawi City, at present part of Region XII, will become part of

Region IX.
Petitioners in G.R. No. 96754 are, or at least at the time of the filing of their petition,
members of Congress representing various legislative districts in South Cotobato,
Zamboanga del Norte, Basilan, Lanao del Norte and Zamboanga City. On November 12,
1990, they wrote then President Aquino protesting E.O. No. 429. They contended that
There is no law which authorizes the President to pick certain provinces and cities within the
71

existing regions some of which did not even take part in the plebiscite as in the case of the
province of Misamis Occidental and the cities of Oroquieta, Tangub and Ozamiz

and

restructure them to new administrative regions. On the other hand, the law (Sec. 13, Art.
XIX, R.A. 6734) is specific to the point, that is, that "the provinces and cities which in the
plebiscite do not vote for inclusion in the Autonomous Region shall remain in the existing
administrative regions."
The transfer of the provinces of Misamis Occidental from Region X to Region IX; Lanao del
Norte from Region XII to Region IX, and South Cotobato from Region XI to Region XII are
alterations of the existing structures of governmental units, in other words, reorganization.
This can be gleaned from Executive Order No. 429, thus
Whereas, there is an urgent need to reorganize the administrative regions in Mindanao to
guarantee the effective delivery of field services of government agencies taking into
consideration the formation of the Autonomous Region in Muslim Mindanao.
With due respect to Her Excellency, we submit that while the authority necessarily includes
the authority to merge, the authority to merge does not include the authority to reorganize.
Therefore, the President's authority under RA 6734 to "merge existing regions" cannot be
construed to include the authority to reorganize them. To do so will violate the rules of
statutory construction.
The transfer of regional centers under Executive Order 429 is actually a restructuring
(reorganization) of administrative regions. While this reorganization, as in Executive Order
429, does not affect the apportionment of congressional representatives, the same is not
valid under the penultimate paragraph of Sec. 13, Art. XIX of R.A. 6734 and Ordinance
appended to the 1986 Constitution apportioning the seats of the House of Representatives
of Congress of the Philippines to the different legislative districts in provinces and cities.
As their protest went unheeded, while Inauguration Ceremonies of the New Administrative
Region IX were scheduled on January 26, 1991, petitioners brought this suit for certiorari and
prohibition.
On the other hand, the petitioner in G.R. No. 96673, Immanuel Jaldon, is a resident of
Zamboanga City, who is suing in the capacity of taxpayer and citizen of the Republic of the
Philippines.
Petitioners in both cases contend that Art. XIX, 13 of R.A. No. 6734 is unconstitutional
because (1) it unduly delegates legislative power to the President by authorizing him to
"merge [by administrative determination] the existing regions" or at any rate provides no
standard for the exercise of the power delegated and (2) the power granted is not expressed
in the title of the law.
In addition, petitioner in G.R. No. 96673 challenges the validity of E.O. No. 429 on the ground
that the power granted by Art. XIX, 13 to the President is only to "merge regions IX and XII"
but not to reorganize the entire administrative regions in Mindanao and certainly not to
transfer the regional center of Region IX from Zamboanga City to Pagadian City.
QUESTIONS:
1. Given the set of facts, is it within the power of the President to merge administrative
regions, transfer regional seats? Explain.
2.Discuss the validity/invalidity of the issues raised by petitioner Jaldon.
72

Answer no. 14: JAMES L. CHIONGBIAN, ET AL. vs. OSCAR M. ORBOS, ET AL. (G.R. No. 96754
June

22,

1995)

YES.

prerogatives

It

of

is
the

administrative regions.

within

the

president

political

to

merge

Jaldon therefore is wrong.

POLITICAL

LAW; LOCAL GOVERNMENT; AUTONOMOUS REGIONS; POWER TO MERGE ADMINISTRATIVE

AGENCIES; TRADITIONALLY LODGED WITH THE PRESIDENT TO FACILITATE THE EXERCISE OF
THE POWER OF GENERAL SUPREVISION. On September 9, 1968, R.A. No. 5435 was
passed "authorizing
on Reorganization,

the President of the Philippines, with the help of a Commission

to reorganize the different executive

departments,

bureaus,

offices,

agencies

instrumentalities of the government,

and

including banking or

financial institutions and corporations owned or controlled by it." The purpose was to
promote "

simplicity, economy and efficiency in the

government."

The Commission on Reorganization created under the law was

required to submit an integrated reorganization plan not later than December 31, 1969 to
the President who was in turn required to submit the plan to Congress within forty days after
the opening of its next regular session

reorganization

plan

. The law provided that any

submitted

would

become

effective only upon the approval of Congress.

Accordingly, the Reorganization Commission prepared an Integrated Reorganization Plan
which divided the country into eleven administrative regions. By P.D. No. 1, the Plan was
approved and made part of the law of the land on September 24, 1972. P.D. No. 1 was twice
amended in 1975, first by P.D.No. 742 which "restructur[ed] the regional organization of
Mindanao, Basilan, Sulu and Tawi-Tawi" and later by P.D. No. 773 which further
"restructur[ed] the regional organization of Mindanao and divid[ed] Region IX into two subregions." In 1978, P.D. No. 1555 transferred the regional center of Region IX from Jolo to
Zamboanga City. Thus the creation and subsequent reorganization of administrative regions
have been by the President pursuant to authority granted to him by law. In conferring on the
President the power "to merge [by administrative determination] the existing regions"
following the establishment of the Autonomous Region in Muslim Mindanao, Congress
merely followed the pattern set in previous legislation dating back to the initial organization
of administrative regions in 1972.

The choice of the President as

delegate is logical because the division of the

country into regions is intended to facilitate not
only the administration of local governments but
73

also the direction of executive departments which

the law requires should have regional offices.
Court observed in Abbas, "while the power to

As this

merge administrative regions

is not expressly provided for in the Constitution, it is a power which has traditionally been
lodged with the

President

power

of

governments

to

general

facilitate the exercise of the

supervision

over

local

[see Art. X, 4 of the Constitution]." The regions themselves are

not territorial and political divisions like provinces, cities, municipalities and barangays but
are

"mere

purposes."

groupings

of

contiguous

provinces

for

administrative

The power conferred on the President is similar to the power to adjust

municipal boundaries which has been described in Pelaez v. Auditor General (122 Phil. 965,
973-4 [1965]) as "administrative in nature." There is, therefore, no abdication by Congress of
its legislative power in conferring on the President the power to merge administrative
regions.
PROVISION THAT PROVINCES AND CITIES WHICH DO NOT VOTE FOR INCLUSION THEREIN
SHALL REMAIN IN THE EXISTING ADMINISTRATIVE REGIONS; QUALIFIED. While Art. XIX,
13 provides that "The provinces and cities which do not vote for inclusion in the
Autonomous Region shall remain in the existing administrative regions," this provision is
subject to the qualification that "the President may by administrative determination merge
the existing regions." This means that while non-assenting provinces and cities are to remain
in the regions as designated upon the creation of the Autonomous Region, they may
nevertheless be regrouped with contiguous provinces forming other regions as the exigency
of administration may require. The regrouping is done only on paper. It involves no more
than a redefinition of the lines separating administrative regions for the purpose of
facilitating the administrative supervision of local government units by the President and
insuring the efficient delivery of essential services. There will be no "transfer" of local
governments from one region to another except as they may thus be regrouped so that a
province like Lanao del Norte, which is at present part of Region XII, will become part of
Region IX. The regrouping of contiguous provinces is not even analogous to a redistricting or
to the division or merger of local governments, which all have political consequences on the
right of people residing in those political units to vote and to be voted for. It cannot be
overemphasized that administrative regions are mere groupings of contiguous provinces for
administrative purposes, not for political representation. Petitioners nonetheless insist that
only those regions, in which the provinces and cities which voted for inclusion in the
Autonomous Region are located, can be "merged" by the President. To be sure Art. XIX, 13
is not so limited. But the more fundamental reason is that the President's power cannot be
so limited without neglecting the necessities of administration. It is noteworthy that the
petitioners do not claim that the reorganization of the regions in E.O. No. 429 is irrational.
The fact is that, as they themselves admit, the reorganization of administrative regions in
E.O. No. 429 is based on relevant criteria, to wit: (1) contiguity and geographical features;
(a) transportation and communication facilities; (3) cultural and language groupings; (4) land
area and population; (5) existing regional centers adopted by several agencies; (6) socio74

economic development programs in the regions and (7) number of provinces and cities.
What has been said above applies to the change of the regional center from Zamboanga
City to Pagadian City. Petitioners contend that the determination of provincial capitals has
always been by act of Congress. But as, this Court said in Abbas, administrative regions are
mere "groupings of contiguous provinces for administrative purposes. . . [

They] are

NOT territorial and political subdivisions like

provinces,

cities,

municipalities

and

barangays." There is, therefore, no basis for

contending that only Congress can change or
determine regional centers.

To the contrary, the examples of

P.D. Nos. 1, 742, 773 and 1555 suggest that the

power to reorganize

administrative

regions

carries

determine the regional center.

with

it

the

power

to

It may be that the transfer of the regional

center in Region IX from Zamboanga City to Pagadian City may entail the expenditure of
large sums of money for the construction of buildings and other infrastructures to house
regional

offices.

That contention is addressed to the

wisdom of the transfer rather than to its legality

and it is settled that courts are not the arbiters of
the wisdom or expediency of legislation. In any event this is
a question that we will consider only if fully briefed and upon a more adequate record than
that presented by petitioners.

CASE No 15.Facts: Juan Calderon was born on 20 August 1939.His grandfather was Pedro
Calderon, a Spanish national, who died in the Philippines on September 11, 1954.His father
was Andoy Calderon who married on September 16, 1940 Jean Stuart, an American national.
The records futher showed that Andoy got married to Juana Calingasan on August 12, 1938.
Questions: 1. Juan Calderon would like to run as Vice-President of the Philippines in
the next election. Is he qualified to run? Explain.

Yes, he is qualified to run.

citizen, his

He is qualified considering that he is a Filipino

citizenship derived from his GRANDFATHER

who was considered by law as Filipino citizen under the Jones Law of 1902. (Filipinization en
masse)
2.Granting that he filed his certificate of candidacy as Vice-President, can his opponent file
75

an election protest
against him before the Presidential Electoral Tribunal? Explain.

No, PET does not have jurisdiction of over the

case.

The

PET

has jurisdiction

already proclaimed

president

only

until

one

of the

candidates

is

. In this case, no one is

yet proclaimed.(TECSON V. COMELEC, 161434, March 3, 2004)

CASE NO. 16.Facts: Manuel S. Pineda was employed with the Philippine National Oil Co.Energy Development Corp. (PNOC-EDC), as subsidiary of the Philippine National Oil Co., from
September 17, 1981, when he was hired as clerk, to January 26, 1989, when his employment
was terminated. The events leading to his dismissal from his job are not disputed.
In November, 1987, while holding the position of Geothermal Construction Secretary,
Engineering and Construction Department, at Tongonan Geothermal Project, Ormoc City,
Pineda decided to run for councilor of the Municipality of Kananga, Leyte, in the local
elections scheduled in January, 1988, and filed the corresponding certificate of candidacy for
the position. Objection to Pineda's being a candidate while retaining his job in the PNOC-EDC
was shortly thereafter registered by Mayor Arturo Cornejos of Kananga, Leyte. The mayor
communicated with the PNOC-EDC thru Engr. Ernesto Patanao, Resident Manager, Tongonan
Geothermal Project to express the view that Pineda could not actively participate in politics
unless he officially resigned from PNOC-EDC. 1 Nothing seems to have resulted from this
protest.
The local elections in Leyte, scheduled for January 1988, were reset to and held on February
1, 1988. Pineda was among the official candidates voted for, and eventually proclaimed
elected to, the office of councilor. Some vacillation appears to have been evinced by Pineda
at about this time. On February 8, 1988, he wrote to the COMELEC Chairman, expressing his
desire to withdraw from the political contest on account of what he considered to be election
irregularities; and on March 19, 1988, he wrote to the Secretary of Justice seeking legal
opinion on the question, among others, of whether or not he was "considered automatically
resigned upon . . . filing of . . . (his) certificate of candidacy," and whether or not, in case he
was elected, he could "remain appointed to any corporate offspring of a government-owned
or controlled corporation." Nevertheless, Pineda took his oath of office in June, 1988 as
councilor-elect of the Municipality of Kananga, Leyte. And despite so qualifying as councilor,
and assuming his duties as such, he continued working for PNOC-EDC as the latter's
Geothermal Construction Secretary, Engineering and Construction Department, at Tongonan
Geothermal Project, Ormoc City.
QUESTIONS:
1. Does the Civil Service Commission cover Pinedas appointment? Explain.

No,

because

PNOC

is

GOCC

without

original charter, which was organized under

the general law the Corporation Code,
76

hence, not under the CSC.

2.Is he considered resigned from his employment with the PNOC when he filed his
certificatet of candidacy? Explain.

SECTION

66

PROVIDES

of

the

OMNIBUS

CANDIDATES

ELECTION

HOLDING

CODE

APPOINTIVE

OFFICE OR POSITION CONSIDERED IPSO FACTO

RESIGNED

UPON

FILING

CANDIDACY;

APPLIES

EMPLOYEES

IN

OF
TO

CERTIFICATE

OF

OFFICERS

AND

GOVERNMENT-OWNED

AND

CONTROLLED CORPORATION WITH OR WITHOUT

ORIGINAL CHARTERS
ANSWER no. 16: PNOC ENERGY DEV'T. CORP., ET AL. vs. NAT'L LABOR RELATIONS
COMMISSION, ET AL. G.R. No. 100947

May 31, 1993 1.

CONSTITUTIONAL LAW;

CIVIL SERVICE; GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS WITHOUT ORIGINAL

CHARTERS, NOT EMBRACED THEREIN. Section 2 (1), Article IX of the 1987 Constitution
provides as follows: "The civil service embraces all branches, subdivisions, instrumentalities,
and agencies of the Government, including government-owned or controlled corporations
with original charters." Implicit in the provision is that government-owned or controlled
corporations without original charters i.e., organized under the general law, the
Corporation Code - are not comprehended within the Civil Service, and their employees are
not subject to Civil Service Law. So has this Court construed the provision. (NASECO, et. al. v.
NLRC, et al., 166 SCRA 122, Lumanta, et. al. v. NLRC, et al., 170 SCRA 79, PNOC-EDC v.
Leogardo, et. al., 175 SCRA 29).
2.

ID.; OMNIBUS ELECTION CODE; When the Congress of the Philippines reviewed the

Omnibus Election Code of 1985, in connection with its deliberations on and subsequent
enactment of related and repealing legislation i.e., Republic Acts Numbered 7166: "An Act
Providing for Synchronized National and Local Elections and for Electoral Reforms,
Authorizing Appropriations Therefor, and for Other Purposes" (effective November 26, 1991),
6646: "An Act Introducing Additional Reforms in the Electoral System and for Other
Purposes" (effective January 5, 1988) and 6636: "An Act Resetting the Local Elections, etc."
(effective November 6, 1987), it was no doubt aware that in light of Section 2(1), Article IX of
the 1987 Constitution: (a) government-owned or controlled corporations were of two (2)
categories those with original charters, and those organized under the general law and
(b) employees of these corporations were of two (2) kinds those covered by the Civil
Service Law, rules and regulations because employed in corporations having original
charters, and those not subject to Civil Service Law but to the Labor Code because employed
in said corporations organized under the general law, or the Corporation Code. Yet Congress
made no effort to distinguish between these two classes of government-owned or controlled
corporations or their employees in the Omnibus Election Code or subsequent related
statutes, particularly as regards the rule that an any employee "in government-owned or
77

controlled corporations, shall be considered ipso facto resigned from his office upon the filing
of his certificate of candidacy." What all this imports is that Section 66 of the Omnibus
Election Code applies to officers and employees in government-owned or controlled
corporations, even those organized under the general laws on incorporation and therefore
not having an original or legislative charter, and even if they do not fall under the Civil
Service Law but under the Labor Code. In other words, Section 66 constitutes just cause for
termination of employment in addition to those set forth in the Labor Code, as amended.

Case No. 17. Petitioner Luis Malaluan and private respondent Joseph Evangelista
were both mayoralty candidates in the Municipality of Kidapawan, North
Cotabato, in the Synchronized National and Local Elections held on May 11, 1992.
Private respondent Joseph Evangelista was proclaimed by the Municipal Board of
Canvassers as the duly elected Mayor for having garnered 10,498 votes as against
petitioners 9,792 votes. Evangelista was, thus, said to have a winning margin of
706 votes. But, on May 22, 1992, petitioner filed an election protest with the
Regional Trial Court contesting 64 out of the total 181 precincts of the said
municipality. The trial court declared petitioner as the duly elected municipal
mayor of Kidapawan, North Cotabato with a plurality of 154 votes. Acting without
precedent, the court found private respondent liable not only for Malaluans
protest expenses but also for moral and exemplary damages and attorneys fees.
On February 3, 1994, private respondent appealed the trial court decision to the
COMELEC.
Rule on the propriety of awarding moral and exemplary damages and attorneys
fees.

Answer no 17:

NOT PROPER. What looms large as the issue in this case is

whether or not the COMELEC gravely abused its discretion in awarding the aforecited
damages in favor of private respondent.
The Omnibus Election Code provides that

actual or compensatory

damages may be granted in all election contests or

in quo warranto proceedings in accordance with
law.[li][13] COMELEC Rules of PCrocedure provide that in all election contests the
Court may adjudicate damages and attorneys fees as it may deem just and as established
by the evidence if the aggrieved party has included such claims in his pleadings. [lii][14]
This appears to require only that the judicial award of damages be just and that the same be
borne out by the pleadings and evidence. The overriding requirement for a valid and proper
award of damages, it must be remembered, is that the same is in accordance with law,
specifically, the provisions of the Civil Code pertinent to damages.
Article 2199 of the Civil Code mandates that except as provided by law or by stipulation,
one is entitled to an adequate compensation only for such pecuniary loss suffered by him as
he has duly proved. Such compensation is referred to as actual or compensatory damages.
The Civil Cod.e further prescribes the proper setting for allowance of actual or compensatory
damages in the following provisions:
78

ART. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in
good faith is liable shall be those that are the natural and probable consequences of the
breach of the obligation, and which the parties have foreseen or could have reasonably
foreseen at the time the obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all
damages which may be reasonably attributed to the non-performance of the obligation.
ART. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which
are the natural and probable consequences of the act or omission complained of. It is not
necessary that such damages have been foreseen or could have reasonably been foreseen
by the defendant.
Considering that actual or compensatory damages are appropriate only in breaches of
obligations in cases of contracts and quasi-contracts and on the - occasion of crimes and
quasi-delicts where the defendant may be held liable for all damages the proximate cause of
which is the act or omission complained of, the monetary claim of a party in an election case
must necessarily be hinged on either a contract or a quasi-contract or a tortious act or
omission or a crime, in order to effectively recover actual or compensatory damages.[liii][15]
In the absence of any or all of these, the claimant must be able to point out a specific
provision of law authorizing a money claim for election protest expenses against the losing
party.[liv][16] For instance, the claimant may cite any of the following provisions of the Civil
Code under the chapter on human relations, which provisions create obligations not by
contract, crime or negligence, but directly by law:
ART. 19. Every person must in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.
ART. 20. Every person who, contrary to law, willfully or negligently causes damage to
another, shall indemnify the latter for the same.
xxx

xxx

xxx

ART. 32. Any public officer or employee, or any private individual, who directly or indirectly
obstructs, defeats, violates or in any manner impedes or impairs any of the following rights
and liberties of another person shall be liable to the latter for damages:
xxx

xxx

xxx

(5) Freedom of suffrage;

xxx

xxx

xxx

In any of the cases referred to in this article, whether or not the defendants act or omission
constitutes a criminal offense, the aggrieved party has a right to commence an entirely
separate and distinct civil action for damages, and for other relief. x x x[lv][17]
Claimed as part of the damages to which private respondent is allegedly entitled to, is
P169,456.00 constituting salary and other emoluments from March, 1994 to April, 1995 that
would have accrued to him had there not been an execution of the trial courts decision
pending appeal therefrom in the COMELEC.

The long-standing rule in this jurisdiction is that

SUBSEQUENT OUSTER

as a

elective official who has been

result

NOTWITHSTANDING HIS

of an

election protest, an

proclaimed by the COMELEC as

winner in an electoral contest and who assumed office and

entered into the performance of the duties

of that office, is
79

ENTITLED

to

EMOLUMENTS

the
and

COMPENSATION,

ALLOWANCES

provided for the position.[lvi][18]

legally

We ratiocinated in the case of

Rodriguez vs. Tan that:

This is as it should be. This is in keeping with the ordinary course of events. This is simple
justice. The emolument must go to the person who rendered the service unless the contrary
is provided. There is no averment in the complaint that he is linked with any irregularity
vitiating his election. This is the policy and the rule that has been followed consistently in
this jurisdiction in connection with positions held by persons who had been elected thereto
but were later ousted as a result of an election protest. The right of the persons elected to
compensation during their incumbency has always been recognized. We cannot recall of any
precedent wherein the contrary rule has been upheld.[lvii][19]
In his concurring opinion in the same case, however, Justice Padilla equally stressed that,
while the general rule is that the ousted elective official is not obliged to reimburse the
emoluments of office that he had received before his ouster, he would be liable for damages
in case he would be found responsible for any unlawful or tortious acts in relation to his
proclamation. We quote the pertinent portion of that opinion for emphasis:
Nevertheless, if the defendant, directly or indirectly, had committed unlawful or tortious
acts which led to and resulted in his proclamation as senator-elect, when in truth and in fact
he was not so elected, he would be answerable for damages. In that event the salary, fees
and emoluments received by or paid to him during his illegal incumbency would be a proper
item of recoverable damage.[lviii][20]
The

criterion for a justifiable award of election protest

expenses and salaries and emoluments, thus , remains to be the

existence of a pertinent

FROM

BREACH OF OBLIGATIONS ARISING

CONTRACTS

OR

QUASI-CONTRACTS,

TORTIOUS ACTS, CRIMES OR A SPECIFIC LEGAL

PROVISION AUTHORIZING THE MONEY CLAIM

in the

context of election cases. Absent any of these, we could not even begin to contemplate
liability for damages in election cases, except insofar as attorneys fees are concerned, since
the Civil Code enumerates the specific instances when the same may be awarded by the
court.
ART. 2208. In the absence of stipulation, attorneys fees and expenses of litigation, other
than judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendants act or omission has compelled the plaintiff to litigate with third
persons or to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the
plaintiffs plainly valid, just and demandable claim;
(6) In actions for legal support;
80

(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;
(8) In actions for indemnity under workmens compensation and employers liability laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that attorneys fees and
expenses of litigation should be recovered.[lix][21]
Given the aforecited laws, and jurisprudence on the matter at issue, let us now look into the
basis of respondent COMELEC for awarding actual damages to private respondent in the
form of reimbursement for attorneys fees, actual expenses for xerox copies, and salary and
other emoluments that should have accrued to him from March, 1994 to April, 1995 had the
RTC not issued an order for execution pending appeal.
The First Division of the COMELEC ruled on private respondents claim for actual or
compensatory damages in this wise:
x x x under the present legal setting, it is more difficult than in the past to secure an award
of actual or compensatory damages either against the protestant or the protestee because
of the requirements of the law.
In the instant case, however, We are disposed to conclude that the election protest filed by
the protestant is clearly unfounded. As borne out by the results of the appreciation of
ballots conducted by this Commission, apparently the protest was filed in bad faith without
sufficient cause or has been filed for the sole purpose of molesting the protestee-appellant
for which he incurred expenses. The erroneous ruling of the Court which invalidated ballots
which were clearly valid added more injury to the protestee-appellant. This would have
been bearable since he was able to perfect his appeal to this Commission. The final blow,
however, came when the Court ordered the execution of judgment pending appeal which,
from all indications, did not comply with the requirements of Section 2, Rule 39 of the Rules
of Court. There was no good and special reason at all to justify the execution ofjudgment
pending appeal because the protestees winning margin was 149 votes while that of the
protestant - after the Court declared him a winner - was only a margin of 154 votes. Clearly,
the order of execution of judgment pending appeal was issued with grave abuse of
discretion.
For these reasons, protestee-appellant seeks to recover the following:
1. Actual damages representing attorneys fees for the new counsel who handled the
Appeal and the Petition for Certiorari before the Court of Appeals x x x -P3 72, 5 00.00
2. Actual expenses for xerox copying of Appellants Brief and the annexes (14 copies at P
1.50 x x x -P11,235.00
3. Actual expenses for xerox copying of ballots x x x - P3,919.20
4. Actual damages for loss of salary and other emoluments since March 1994 as per
attached Certification issued by the Municipal Account of Kidapawan x x x - P96,832.00 (up
to October 1994 only)
Under Article 2208 of the New Civil Code attorneys fees and expenses of litigation can be
recovered (as actual damages) in the case of clearly unfounded civil action or proceeding.
And, while the case of Eulogio Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724) disallowed
recovery of salaries and allowances (as damages) from elected officials who were later
ousted, under the theory that persons elected has (sic) a right to compensation during their
incumbency, the instant case is different. The protestee-appellant was the one elected. He
81

was ousted not by final judgment but by an order of execution pending appeal which was
groundless and issued with grave abuse of discretion. Protestant-appellee occupied the
position in an illegal manner as a usurper and, not having been elected to the office, but
merely installed through a baseless court order, he certainly had no right to the salaries and
emoluments of the office.
Actual damages in the form of reimbursement for attorneys fees (P3 72,500.00), actual
expenses for xerox copies (P15,154.00), unearned salary and other emoluments from March
1994 to April 1995 or 14 months at P12,104.00 a month (P169,456.00), totalled
P557,110.00. To (sic) this amount, however, P3 00,000.00 representing that portion of
attorneys fees denominated as success fee must be deducted this being premised on a
contingent event the happening of which was uncertain from the beginning. Moral damages
and exemplary damages claimed are, of course, disallowed not falling within the purview of
Section 259 of the Omnibus Election Code.
It goes without saying that if the protestant-appellee fails to pay the actual damages of
P257,110.00, the amount will be assessed, levied and collected from the bond of
P500,000.00 which he put up before the Court as a condition for the issuance of the order of
execution of judgment pending appeal.[lx][22]
Petitioner filed a motion for reconsideration of the aforecited decision on March 29, 1995.
The COMELEC en banc, however, did not find any new matter substantial in nature,
persuasive in character or sufficiently provocative to compel reconsideration of said decision
and accordingly affirmed in toto the said decision. Hence, this petition raises, among others,
the issue now solely remaining and in need of final adjudication in view of the mootness of
the other issues anent petitioners right to the contested office the term for which has
already expired.
We have painstakingly gone over the records of this case and we can attribute to petitioner
no breach of contract or quasi-contract; or tortious act nor crime that may make him liable
for actual damages. Neither has private respondent been able to point out to a specific
provision of law authorizing a money claim for election protest expenses against the losing
party. [lxi][23]

We

find

respondent

damages

COMELECs reasoning

in question to be

in

awarding

fatally flawed.

the

The COMELEC

found the election protest filed by the petitioner to be clearly unfounded because its own
appreciation of the contested ballots yielded results contrary to those of the trial court.
Assuming, ex gratia argumentis, that this is a reasonable observation not without basis, it is
nonetheless fallacious to conclude a malicious intention on the part of petitioner to molest
private respondent on the basis of what respondent COMELEC perceived as an erroneous
ruling of the trial court. In other words, the actuations of the trial court, after the filing of a
case before it, are its own, and any alleged error on its part does not, in the absence of clear
proof, make the suit clearly unfounded for which the complainant ought to be penalized.

Insofar as the AWARD OF PROTEST EXPENSES AND

ATTORNEYS FEES are concerned, therefore we find
them to have been awarded by respondent COMELEC
82

WITHOUT BASIS,
having

been

clearly

the election protest not

unfounded

one

under

the

aforementioned circumstances.
Respondent COMELEC also found the order granting execution of judgment pending appeal
to be defective because of alleged non-compliance with the requirement that there be a
good and special reason[lxii][24] to justify execution pending appeal. We, however, find that
the

exercise

trial court acted JUDICIOUSLY in the

prerogatives
granting

under the law in

issuing

of its

the order

EXECUTION PENDING APPEAL.

First, it

should be noted that the applicability of the provisions of the Rules of Court, relating to
execution pending appeal, has ceased to be debatable after we definitively ruled in Garcia
vs. de Jesus[lxiii][25] that Section 2, Rule 39 of the Rules of Court, which allows

Regional Trial Courts to order executions

pending appeal upon good reasons stated in
a special order, may be made to apply by
analogy or suppletorily to election contests
decided by them.[lxiv][26] It is not disputed that petitioner filed a bond in
the amount of P500,000.00 as required under the Rules of Court.
It is also now a settled rule that

as much recognition should be given

to the value of the decision of a judicial body as a

basis for the right to assume office as that given by
law

to

the

proclamation

made

by

the

Board

of

Canvassers.[lxv][27]
x x x Why should the proclamation by the board of canvassers suffice as basis of the right
to assume office, subject to future contingencies attendant to a protest, and not the decision
of a court of justice? Indeed x x x the board of canvassers is composed of persons who are
less technically prepared to make an accurate appreciation of the ballots, apart from their
being more apt to yield extraneous considerations x x x

the board must act

summarily, practically raising (sic) against time, while, on the

other hand, the judge has the benefit of all the evidence the
parties can offer and of admittedly better technical preparation
and background, apart from his being allowed ample time for
83

conscientious study and mature deliberation before rendering

judgment

x x x.[lxvi][28]

Without evaluating the merits of the trial courts actual

appreciation of the ballots contested in the election
protest, we note on the face of its decision that the trial
court relied on the findings of the National Bureau
of Investigation (NBI) handwriting experts which
findings private respondent did not even bother to
rebut.

We thus see no reason to disregard the

presumption of regularity in the performance of

official duty on the part of the trial court judge.

Capping

this combination of circumstances which impel the grant of immediate execution is the
undeniable urgency involved in the political situation in the Municipality of Kidapawan, North
Cotabato. The appeal before the COMELEC would undoubtedly cause the political vacuum in
said municipality to persist, and so the trial court reasonably perceived execution pending
appeal to be warranted and justified. Anyway, the bond posted by petitioner could cover
any damages suffered by any aggrieved party. It is true that mere posting of a bond is not
enough reason to justify execution pending appeal, but the nexus of circumstances
aforechronicled considered together and in relation to one another, is the dominant
consideration for the execution pending appeal.[lxvii][29]
Finally, we deem the award of salaries and other emoluments to be improper and lacking
legal sanction. Respondent COMELEC ruled that inapplicable in the instant case is the ruling
in Rodriguez vs. Tan[lxviii][30] because while in that case the official ousted was the one
proclaimed by the COMELEC, in the instant case, petitioner was proclaimed winner only by
the trial court and assumed office by virtue of an order granting execution pending appeal.
Again, respondent COMELEC sweepingly concluded, in justifying the award of damages, that
since petitioner was adjudged the winner in the elections only by the trial court and
assumed the functions of the office on the strength merely of an order granting execution
pending appeal, the petitioner occupied the position in an illegal manner as a usurper.

We hold that petitioner was not a usurper because, while a usurper is one
who undertakes to act officially without any color of right,[lxix][31]

the

petitioner exercised the duties of an elective

office under color of election thereto.[lxx][32]

It

matters not that it was the trial court and not the COMELEC that declared
petitioner as the winner, because both, at different stages of the electoral
process, have the power to so proclaim winners in electoral contests. At the
risk of sounding repetitive, if only to emphasize this point, we must reiterate
that the decision of a judicial body is no less a basis than the proclamation
84

made by the COMELEC-convened Board of Canvassers for a winning

candidates right to assume office, for both are undisputedly legally
sanctioned.

We deem petitioner, therefore, to

be a de facto officer who, in good faith,

has had possession of the office and had
discharged

the

duties

pertaining

thereto[lxxi][33] and is thus legally entitled to

the emoluments of the office.[lxxii][34]
To recapitulate, Section 259 of the Omnibus Election Code only provides for the granting in

The

election cases of actual and compensatory damages in accordance with law.

victorious party in an election case CANNOT BE

INDEMNIFIED FOR EXPENSES which he has incurred
in an electoral contest IN THE ABSENCE OF A
WRONGFUL ACT OR OMISSION OR BREACH OF
OBLIGATION

CLEARLY

ATTRIBUTABLE

TO

THE

LOSING PARTY. Evidently, if any damage had been suffered

by private respondent due to the execution ofjudgment pending
appeal,

that

damage

may

be

said

damnum absque injuria,

to

be

equivalent

to

which is, damage without

injury, or damage or injury inflicted without injustice, or loss or

damage without violation of a legal right, or a wrong done to a
man for which the law provides

no remedy.[lxxiii][35]

MALALUAN V. COMELEC, 120193, MARCH 6, 1996

CASE No. 18. Petitioner was proclaimed Mayor of Gloria, Oriental Mindoro during
the May 8, 1995 elections.
In the same elections, private respondent was proclaimed Vice-Mayor of the same
municipality.
On May 19, 1995, petitioners rival candidate, the late Nicolas M. Jamilla, filed an
election protest[lxxiv][1] before the Regional Trial Court of Pinamalayan, Oriental
Mindoro.[lxxv][2]
85

During the pendency of said contest, Jamilla died. [lxxvi][3] Four days after such death
or on December 19, 1995, the trial court dismissed the election protest ruling as it
did that

[a]s this case is personal, the death of the

protestant extinguishes the case itself. The issue

or issues brought out in this protest have become
moot and academic.[lxxvii][4]
On January 9, 1995, private respondent learned about the dismissal of the protest
from one Atty. Gaudencio S. Sadicon, who, as the late Jamillas counsel, was the
one who informed the trial court of his clients demise.
On January 15, 1996, private respondent filed his Omnibus Petition/Motion (For
Intervention

and/or

Substitution

with

Motion

for

Reconsideration). [lxxviii][5]

Opposition thereto was filed by petitioner on January 30, 1996. [lxxix][6]

In an Order dated February 14, 1996, [lxxx][7] the trial court denied private
respondents Omnibus Petition/Motion and stubbornly held that an election
protest being personal to the protestant, is ipso facto terminated by the latters
death
Question: Is the ruling of the RTC correct?
Answer no 18: It is true that a public office is personal to the public officer and is not a
property transmissible to his heirs upon death. [lxxxi][9] Thus, applying the doctrine of actio
personalis moritur cum persona,

upon the death of the incumbent, no

heir of his may be allowed to continue holding his

office in his place.
But while the right to a public office is personal and
exclusive to the public officer, an election protest is
not purely personal and exclusive to the protestant
or to the protestee such that the death of either would
oust the court of all authority to continue the protest
proceedings.
An election contest, after all, involves not merely
conflicting

private

aspirations

but

PARAMOUNT PUBLIC INTERESTS.

is

imbued

with

As we have held in the case of

Vda. de De Mesa v. Mencias:[lxxxii][10]

x x x. It is axiomatic that an election contest, involving as it does not only the adjudication
and settlement of the private interests of the rival candidates but also the paramount need
of dispelling once and for all the uncertainty that beclouds the real choice of the electorate
with respect to who shall discharge the prerogatives of the offices within their gift, is a
86

proceeding imbued with public interest which raises it onto a plane over and above ordinary
civil actions. For this reason, broad perspectives of public policy impose upon courts the
imperative duty to ascertain by all means within their command who is the real candidate
elected in as expeditious a manner as possible, without being fettered by technicalities and
procedural barriers to the end that the will of the people may not be frustrated (Ibasco vs.
Ilao, et al., G.R. L-17512, December 29, 1960; Reforma vs. De Luna, G.R. L-13242, July 31,
1958). So inextricably intertwined are the interests of the contestants and those of the
public that there can be no gainsaying the logic of the proposition that even the voluntary
cessation in office of the protestee not only does not ipso facto divest him of the character of
an adversary in the contest inasmuch as he retains a party interest to keep his political
opponent out of the office and maintain therein his successor, but also does not in any
manner impair or detract from the jurisdiction of the court to pursue the proceeding to its
final conclusion (De Los Angeles vs. Rodriguez, 46 Phil. 595, 597; Salcedo vs. Hernandez, 62
Phil. 584, 587; Galves vs. Maramba, G.R. L-13206).
Upon the same principle, the death of the protestee De Mesa did not abate the proceedings
in the election protest filed against him, and it may stated as a rule that an

election

contest survives and must be prosecuted to

final judgment despite the death of the
protestee.

[lxxxiii][11]

The death of the protestant, as in this case, neither constitutes a ground for the dismissal of
the contest nor ousts the trial court of its jurisdiction to decide the election contest. Apropos
is the following pronouncement of this court in the case of Lomugdang v. Javier:[lxxxiv][12]
Determination of what candidate has been in fact elected is a matter clothed with public
interest, wherefore, public policy demands that an election contest, duly commenced, be not
abated by the death of the contestant. We have squarely so rule in Sibulo Vda. de Mesa vs.
Judge Mencias, G.R. No. L-24583, October 29, 1966, in the same spirit that led this Court to
hold that the ineligibility of the protestant is not a defense (Caesar vs. Garrido, 53 Phil. 57),
and that the protestees cessation in office is not a ground for the dismissal of the contest
nor detract the Courts jurisdiction to decide the case (Angeles vs. Rodriguez, 46 Phil. 595;
Salcedo vs. Hernandez, 62 Phil. 584).[lxxxv][13]
The asseveration of petitioner that private respondent is not a real party in interest entitled
to be substituted in the election protest in place of the late Jamilla, is utterly without legal
basis. Categorical was our ruling in Vda. de Mesa and Lomugdang that:
x x x the Vice Mayor elect has the status of a real party in interest in the continuation of the
proceedings and is entitled to intervene therein.

For if the protest succeeds and the

protestee is unseated, the Vice-Mayor succeeds to the office of Mayor that becomes vacant
if the one duly elected can not assume the post.[lxxxvi][14]
To finally dispose of this case, we rule that the filing by private respondent of his Omnibus
Petition/Motion on January 15, 1996, well within a period of thirty days from December 19,
1995 when Jamillas counsel informed the trial court of Jamillas death, was in compliance
with Section 17, Rule 3 of the Revised Rules of Court. Since the Rules of Court, though not
generally applicable to election cases, may however be applied by analogy or in a
suppletory character,[lxxxvii][15] private respondent was correct to rely thereon.
The above jurisprudence is not ancient; in fact these legal moorings have been recently
87

reiterated in the 1991 case of De la Victoria vs. COMELEC.[lxxxviii][16] If only petitioners

diligence in updating himself with case law is as spirited as his persistence in pursuing his
legal asseverations up to the highest court of the land, no doubt further derailment of the
election protest proceedings could have been avoided. CASTRO V. COMELEC , 125249, FEB
1997

CASE NO. 19. Petitioner Arsenio A. Latasa, was elected mayor of the Municipality
of Digos, Davao del Sur in the elections of 1992, 1995, and 1998.

During

petitioners third term, the Municipality of Digos was declared a component city,
to be known as the City of Digos. A plebiscite conducted on September 8, 2000
ratified Republic Act No. 8798 entitled, An Act Converting the Municipality of
Digos, Davao del Sur Province into a Component City to be known as the City of
Digos or the Charter of the City of Digos.

This event also marked the end of

petitioners tenure as mayor of the Municipality of Digos. However, under Section

53, Article IX of the Charter, petitioner was mandated to serve in a hold-over
capacity as mayor of the new City of Digos. Hence, he took his oath as the city
mayor.
On February 28, 2001, petitioner filed his certificate of candidacy for city mayor
for the May 14, 2001 elections. He stated therein that he is eligible therefor, and
likewise disclosed that he had already served for three consecutive terms as
mayor of the Municipality of Digos and is now running for the first time for the
position of city mayor.
Question: Is Latasa eligible to run as city mayor?

ANSWER no 19: As seen in the aforementioned provisions, this Court notes that

the

delineation of the metes and bounds of the City of

Digos did not change even by an inch the land area previously covered by
the Municipality of Digos. This Court also notes that the

elective officials of the

Municipality of Digos continued to exercise their powers

and functions until elections were held for the new city
officials.
True, the new city acquired a new corporate existence separate and distinct from that of the
municipality. This does not mean, however, that

for the purpose of applying

the subject Constitutional provision, the office of the

municipal mayor would now be construed as a different
local government post as that of the office of the city
mayor.

As stated earlier, the

territorial jurisdiction of the City of Digos

is the same as that of the municipality .

Consequently, the

inhabitants

of the municipality are the same as those in the city .

These
88

inhabitants are the same group of voters who elected petitioner Latasa to be their municipal
mayor for three consecutive terms. These are also the same inhabitants over whom he held
power and authority as their chief executive for nine years.
This Court must distinguish the present case from previous cases ruled upon this Court
involving the same Constitutional provision.
In Borja, Jr. v. COMELEC,[39][18] the issue therein was whether a vice-mayor who became the
mayor by operation of law and who served the remainder of the mayors term should be
considered to have served a term in that office for the purpose of the three-term limit under
the Constitution. Private respondent in that case was first elected as vice-mayor, but upon
the death of the incumbent mayor, he occupied the latters post for the unexpired term. He
was, thereafter, elected for two more terms. This Court therein held that when private
respondent occupied the post of the mayor upon the incumbents death and served for the
remainder of the term, he cannot be construed as having served a full term as contemplated
under the subject constitutional provision. The term served must be one for which [the
official concerned] was elected.
It must also be noted that in Borja, the private respondent therein, before he assumed the
position of mayor, first served as the vice-mayor of his local government unit. The nature of
the responsibilities and duties of the vice-mayor is wholly different from that of the mayor.
The vice-mayor does not hold office as chief executive over his local government unit. In the
present case, petitioner, upon ratification of the law converting the municipality to a city,
continued to hold office as chief executive of the same territorial jurisdiction. There were
changes in the political and economic rights of Digos as local government unit, but no
substantial change occurred as to petitioners authority as chief executive over the
inhabitants of Digos.
In Lonzanida v. COMELEC,[40][19] petitioner was elected and served two consecutive terms as
mayor from 1988 to 1995. He then ran again for the same position in the May 1995
elections, won and discharged his duties as mayor. However, his opponent contested his
proclamation and filed an election protest before the Regional Trial Court, which ruled that
there was a failure of elections and declared the position of mayor vacant. The COMELEC
affirmed this ruling and petitioner acceded to the order to vacate the post. During the May
1998 elections, petitioner therein again filed his certificate of candidacy for mayor.

petition to disqualify him was filed on the ground that he had already served three
consecutive terms. This Court ruled, however, that petitioner therein cannot be considered
as having been duly elected to the post in the May 1995 elections, and that said petitioner
did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of
office.
In the present case, petitioner Latasa was, without a doubt, duly elected as mayor in the
May 1998 elections. Can he then be construed as having involuntarily relinquished his office
by reason of the conversion of Digos from municipality to city? This Court believes that

he did involuntarily relinquish his office as

municipal mayor since the said office has
been

deemed

abolished

due

to

the
89

conversion.

However, the very instant he

vacated his office as municipal mayor, he also

assumed office as city mayor.

Unlike in

Lonzanida, where petitioner therein, for even just a short period of time, stepped down from
office,

petitioner Latasa never ceased from acting as

chief executive of the local government unit. He

never ceased from discharging his duties and
responsibilities as chief executive of Digos.
In Adormeo v. COMELEC,[41][20] this Court was confronted with the issue of whether or not an
assumption to office through a recall election should be considered as one term in applying
the three-term limit rule. Private respondent, in that case, was elected and served for two
consecutive terms as mayor. He then ran for his third term in the May 1998 elections, but
lost to his opponent. In June 1998, his opponent faced recall proceedings and in the recall
elections of May 2000, private respondent won and served for the unexpired term. For the
May 2001 elections, private respondent filed his certificate of candidacy for the office of
mayor. This was questioned on the ground that he had already served as mayor for three
consecutive terms. This Court held therein that private respondent cannot be construed as
having been elected and served for three consecutive terms. His loss in the May 1998
elections was considered by this Court as an interruption in the continuity of his service as
mayor. For nearly two years, private respondent therein lived as a private citizen. The
same, however, cannot be said of petitioner Latasa in the present case.
Finally, in Socrates v. COMELEC,[42][21]

the principal issue was whether or not private

respondent Edward M. Hagedorn was qualified to run during the recall elections. Therein
respondent Hagedorn had already served for three consecutive terms as mayor from 1992
until 2001 and did not run in the immediately following regular elections. On July 2, 2002,
the barangay officials of Puerto Princesa convened themselves into a Preparatory Recall
Assembly to initiate the recall of the incumbent mayor, Victorino Dennis M. Socrates. On
August 23, 2002, respondent Hagedorn filed his certificate of candidacy for mayor in the
recall election. A petition for his disqualification was filed on the ground that he cannot run
for the said post during the recall elections for he was disqualified from running for a fourth
consecutive term. This Court, however, ruled in favor of respondent Hagedorn, holding that
the principle behind the three-term limit rule is to prevent consecutiveness of the service of
terms, and that there was in his case a break in such consecutiveness after the end of his
third term and before the recall election.
It is evident that in the abovementioned cases, there exists a rest period or a break in the
service of the local elective official. In Lonzanida, petitioner therein was a private citizen a
few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the
private respondents therein lived as private citizens for two years and fifteen months
respectively. Indeed,

the law contemplates a rest period during

90

which the local elective official steps down from office and
ceases to exercise power or authority over the inhabitants
of

the

territorial

jurisdiction

of

particular

local

government unit.
This Court reiterates that the framers of the Constitution specifically included an exception
to the peoples freedom to choose those who will govern them in order to avoid the evil of a
single person accumulating excessive power over a particular territorial jurisdiction as a
result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the
position of city mayor after having served for three consecutive terms as a municipal mayor
would obviously defeat the very intent of the framers when they wrote this exception.
Should he be allowed another three consecutive terms as mayor of the City of Digos,
petitioner would then be possibly holding office as chief executive over the same territorial
jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very
scenario sought to be avoided by the Constitution, if not abhorred by it.
Finally, respondent Sunga claims that applying the principle in Labo v. COMELEC,[43][22] he
should be deemed the mayoralty candidate with the highest number of votes.

On the

contrary, this Court held in Labo that the disqualification of a winning candidate does not
necessarily entitle the candidate with the highest number of votes to proclamation as the
winner of the elections. As an obiter, the Court merely mentioned that the rule would have
been different if the electorate, fully aware in fact and in law of a candidates disqualification
so as to bring such awareness within the realm of notoriety, would nonetheless cast their
votes in favor of the ineligible candidate. In such case, the electorate may be said to have
waived the validity and efficacy of their votes by notoriously misapplying their franchise or
throwing away their votes, in which case, the eligible candidate obtaining the next higher
number of votes may be deemed elected. The same, however, cannot be said of the
present case.
This Court has consistently ruled that the fact that a plurality or a majority of the votes are
cast for an ineligible candidate at a popular election, or that a candidate is later declared to
be disqualified to hold office, does not entitle the candidate who garnered the second
highest number of votes to be declared elected. The same merely results in making the
winning candidates election a nullity. [44][23] In the present case, moreover, 13,650 votes
were cast for private respondent Sunga as against the 25,335 votes cast for petitioner
Latasa.[45][24] The second placer is obviously not the choice of the people in that particular
election. In any event, a permanent vacancy in the contested office is thereby created
which should be filled by succession.[46][25] LATASA V. COMELEC, 154829, DEC. 10, 2003
CASE NO. 20. Distinguish domicile from residence within the framework of
election law.

RESIDENCE

DOMICILE,

as

far

as

election

law

is

concerned.
Answer no 20: DOMINO V. COMELEC, 134015, JULY 19, 1999 It is doctrinally settled that the
term

residence, as used in the law prescribing the

qualifications for suffrage and for elective office,

91

means the

SAME THING

as domicile,

imports not only an intention to reside in a fixed place but also

presence
[21]

which

personal

in that place, coupled with conduct indicative of such intention. [lxxxix]

Domicile denotes a fixed permanent residence

to which, whenever absent for business, pleasure,

or some other reasons, one intends to return .

[xc][22]

Domicile is a QUESTION OF INTENTION AND

CIRCUMSTANCES.

In the consideration of circumstances, three rules must

be borne in mind, namely: (1) that a man must have a residence or domicile somewhere; (2)
when once established it remains until a new one is acquired; and (3) a man can have but
one residence or domicile at a time.[xci][23]
Records show that petitioners domicile of origin was Candon, Ilocos Sur [xcii][24] and that
sometime in 1991, he acquired a new domicile of choice at 24 Bonifacio St. Ayala Heights,
Old Balara, Quezon City, as shown by his certificate of candidacy for the position of
representative of the 3rd District of Quezon City in the May 1995 election. Petitioner is now
claiming that he had effectively abandoned his residence in Quezon City and has
established a new domicile of choice at the Province of Sarangani.

A persons domicile once established is considered to

continue and will not be deemed lost until a new one is
established.[xciii][25]
demonstrate an

To successfully effect a

change

of domicile one must

actual removal or an actual change

of

domicile; a bona fide intention of abandoning the former place of residence and establishing
a new one and definite acts which correspond with the purpose. [xciv][26] In other words, there
must

basically

be

animus

manendi

animus non revertendi.

or at the domicile of choice must be for an

change of residence
residence
actual.

The

coupled

with

purpose to remain in

indefinite period
must

at the place chosen for the

be

of time; the

voluntary;

new domicile

and

the

must be

[xcv][27]

It is the contention of petitioner that his actual physical presence in Alabel, Sarangani since
December 1996 was sufficiently established by the lease of a house and lot located therein
in January 1997 and by the affidavits and certifications under oath of the residents of that
place that they have seen petitioner and his family residing in their locality.
92

While this may be so,

actual and physical is not in itself

sufficient to show that from said date he had

transferred his residence in that place .

To establish a new

domicile of choice, personal presence in the place must be coupled with conduct indicative
of

that

intention.

While residence simply requires

bodily presence in a given place, domicile

requires not only such bodily presence in that
place but also a declared and probable intent
to make it ones fixed and permanent place
of abode, ones home.

[xcvi][28]

As a general rule, the principal elements of domicile,

PHYSICAL PRESENCE

in the locality involved and INTENTION TO ADOPT it as

a domicile, must concur in order to establish a new domicile.

No change of domicile

will result if either of these elements is absent. Intention to acquire a domicile without
actual residence in the locality does not result in acquisition of domicile, nor does the fact of
physical presence without intention.[xcvii][29]
The lease contract entered into sometime in January 1997, does not adequately support a
change of domicile.

The lease contract may be indicative of DOMINOs

INTENTION TO RESIDE

in Sarangani but it does

NOT

engender the kind of permanency required to

prove

abandonment

domicile.

of

ones

original

The mere absence of individual from his permanent residence, no matter

how long, without the intention to abandon it does not result in loss or change of domicile.
[xcviii][30]

Thus the date of the contract of lease of a house and lot located in the province of

Sarangani, i.e., 15 January 1997, cannot be used, in the absence of other circumstances, as
the reckoning period of the one-year residence requirement.
Further,

Dominos lack of intention to abandon his residence

in Quezon City is further strengthened by his act of

registering as voter in one of the precincts in

Quezon City.

While voting is not conclusive of residence, it does give rise to a

strong presumption of residence especially in this case where DOMINO registered in his
former barangay. Exercising the right of election franchise is a deliberate public assertion of
the fact of residence, and is said to have decided preponderance is a doubtful case upon the
93

place the elector claims as, or believes to be, his residence. [xcix][31] The fact that a party

continuously voted in a particular locality

strong factor in

is a

assisting to determine the status of

his domicile.

[c][32]

His claim that his registration in Quezon City was erroneous and was caused by events over
which he had no control cannot be sustained.

The general registration of voters for

purposes of the May 1998 elections was scheduled for two (2) consecutive weekends, viz.:
June 14, 15, 21, and 22.[ci][33]

While,

Dominos

intention

to

establish

residence

in

Sarangani can be gleaned from the fact that be bought the

house he was renting on November 4, 1997,

that he sought

cancellation of his previous registration in Quezon City on 22 October 1997, [cii][34]

and

that he applied for transfer of registration from Quezon

City to Sarangani by reason of change of residence on 30
August 1997,

[ciii][35]

DOMINO still FALLS SHORT OF THE

ONE YEAR RESIDENCY REQUIREMENT under the

Constitution.
In showing compliance with

the RESIDENCY requirement, both INTENT

and ACTUAL PRESENCE in the district one intends to represent

must

satisfy the length of time prescribed by

the fundamental law.

ineligible

and his

[civ][36]

Dominos failure to do so rendered him

election to office null

and

void.

[cv][37]

ELECTION LAW & ADMIN 3

1

It is a principle that the House Electoral Tribunal is an independent body and that each
member also enjoys security of tenure. The membership in the HRET may not be terminated
except for a just cause. What are some of these just causes?

Answer: (Bondoc v. Pineda; Lazatin v. Comelec) a)

members

death (b) expiration of the

congressional term of office (c) resignation from the political

party that he represents (d) formal affiliation with another political party or
removal for other valid cause.

The general rule is that

after proclamation

the usual remedy of any party

94

file

aggrieved in the election is to

exceptions

an

election protest.

What is/are the

to this rule?

Answer: When the

proclamation

is

null and void. (Mutuc v. Comelec)

3. The rule is that there is no rule, constitutional or statutory, which provides for an appeal
from a decision or final order or resolution of the House of Representatives Electoral Tribunal.
In this case, how or what procedure is possible inorder to reverse the ruling of the HRET?

Judicial review by way Certiorari under Rule 65

Answer: (Lerias v. HRET; Puzon v. HRET; Garcia v. HRET(1999; Arroyo v. HRET (1995)

Judicial review

is still possible under the supervisory or extraordinary, not

appellate jurisdiction, of the

Supreme Court,

through a

special civil

action of certiorari or prohibition.

4. Who has jurisdiction over cases involving the qualifications of the Sangguniang

Kabataan (SK)

before

election? Will your answer be the same if the

qualification/or eligibility of the SK is questioned

Answer: (Marquez v. Comelec(1999)

by the
his

Before

after

his election? Explain.

the election, the matter shall be decided

CITY/MUNICIPAL ELECTION OFFICER. After

election

the

matter

shall

be

filed

before

the

MUNICIPAL/METROPOLITAL TRIAL COURTS.

5.The Comelec Rules

prohibits the filing of a motion to dismiss in election

protests. Will this prohibition apply also to election protests involving barangay
officials? Explain.

Answer: IN barangay election protests, a

motion to dismiss is NOT a

prohibited pleading. (Maruhom v. Comelec (1994))

6. In one case involving an electoral protest where the ballots involving 4,000 votes, the
court did not allow to present the voters to testify as to whom they voted. In another case
involving one polling place, the voters were not allowed to testify. Which ruling is correct
here?
Answer: Lomugdang v. Javier (1967) and Salvani v. Garduno 52 Phil 673. (p. 568 of the book)
95

7. Is a demurrer to evidence allowed in electoral protest? Why?

Answer: Jardiel v. Comelec; Enojas jr. v. Comelec (1997); Gementiza v. Comelec (2001)

Not allowed.

demurrer

to

evidence

is

not allowed in

election cases. If one is filed, the movant is

deemed to have submitted the case for resolution
on the merits,

as he is considered to have waived the presentation of his

evidence.

8.

The

annulment of an election on the grounds of fraud,

irregularities and violations of election laws

incident

to an

election contest.

annulment of

an

What are the

election

in an

two

may be

raised

grounds

as an

for an

election protest?

Illegality of more than 50% of the votes cast

good

votes can be distinguished from bad votes

Answer: Carlos v. Angeles (2000) (1) the

illegality must be MORE

and (2) the

good votes can

bad ones.

It is only when these two

THAN 50% of the votes cast

be distinguished

from the

conditions are established that the annulment of the election can be justified

because

the remaining votes do NOT CONSTITUTE a valid

constituency.
annulled

In other words,

and

the

an election must NOT be

votes

disenfranchised

WHENEVER IT IS POSSIBLE TO DETERMINE A

WINNER ON THE BASIS OF VALID VOTES CAST,
AND DISCARD THE ILLEGALLY CAST VOTES.
9. (A) What are the grounds for an

election protest

execution pending appeal of an

filed before the RTC? (B)What are some of the

good

reasons for granting the same?

96

Answer: (A) There must be a

MOTION for execution pending appeal

by the prevailing party with notice to the adverse party ;

there must be a

good reason

reason must
(b) the

be

stated

for the execution pending appeal; the

in the

PUBLIC INTEREST

good

order

involved or the will of the electorate; the

SHORTNESS OF THE REMAINING PORTION OF THE

TERM of the contested office;

the

LENGTH OF TIME

that the election contest has been PENDING

(Ramas v.

Comelec (1998); Nazareno v. Comelec (1997); Alvarez v. COmelec (2001); Edding v.

COmelec (1995);

Relongpango

v.

Comelec

(1995);

Malaluan

v.Comelec;

Zarate

v.

Comelec(2001); Alvarez v. COmelec (2001)

10.A violation of any of the provisions of the Omnibus Election Code, which is

specifically penalized
is

under

not a criminal offense

Sections 261 and 262

not
thereof

in accordance with the maxim expression

unius est exclusion alterius.

It can be the basis of another action

however. What is that action?

Answer:

Administrative action or charge.

(Malinias v.

Comelec(2002).

ELECTION LAW & ADMIN 2

1. In a petition for a

pre-proclamation controversy, petitioner, who

lost in the election, assigned as error of the COMELEC, the following.

No decision shall be rendered by any court of record without expressing therein
clearly and distinctly the facts and the law on which it is based. and Sec. 26, Rule XV
of COMELEC Resolution No. 1450 dated February 26, 1980, which reads: In deciding
contests, the Commission shall follow the procedure prescribed for the Supreme
Court in Secs. 8 and 9, Art. X of the Constitution of the Philippines.

It appears on record that the COMELEC did

not

consider petitioner's

evidence, particularly the Memorandum Report of Atty. Mamasapunod Aguam, Regional

Election Director for Region XII, to the effect that there was

failure of
97

election

in Sultan Gumander.

Question: Was there

grave abuse of discretion

by the

COMELEC?
Answer:(G.R.

No.

L-58309-10,February

25,

1982,MANGACOP

MANGCA

vs.

COMMISSION ON ELECTIONS) Petitioner's contention that the March 31, 1981, resolution is
null and void for being violative of Sec. 9, Art. X of the Constitution and Sec 26, Rule XV of
COMELEC Resolution No. 1450 is

provisions

are

untenable.

inapplicable

Firstly,

both cited

to the case at bar

since the

constitutional requirement applies only to

courts of justice which the COMELEC is not
(Lucman vs. Dimaporo, L-31558, May 29, 1970, 33 SCRA 387)

while COMELEC

Resolution No. 1450,

applies only

"

election contests"

per

and "

Sec.

thereof,

to

quo warranto proceedings"

which the pre- proclamation cases are not

2. On 15 May 1995 Luis Copacabana filed with the Commission on Elections (COMELEC) a

Petition to Declare Failure of Election and to

Declare

Null

Proclamation

and

Void

the

Canvass

and

because of alleged widespread frauds and anomalies in casting and

counting of votes, preparation of election returns, violence, threats, intimidation, vote

buying, unregistered voters voting, and delay in the delivery of election documents and
paraphernalia from the precincts to the Office of the Municipal Treasurer. Copacobana
particularly averred that:
(a) the names of the registered voters did not appear in the list of voters in their precincts;
(b) more than one-half of the legitimate registered voters were not able to vote with
strangers voting in their stead;
(c) he was credited with less votes than he actually received;
(d) control data of the election returns was not filed up in some precincts;
(e) ballot boxes brought to the Office of the Municipal Treasurer were unsecured, i.e., without
padlocks nor self-locking metal seals; and,
(f) (f) there was delay in the delivery of election returns. But the COMELEC en banc
dismissed the petition on the ground that the allegations therein did not justify a declaration
of failure of election
Questions: Are the above grounds sufficient to grant the petition that indeed there was a
failure of election? Discuss each ground, and state what possible remedies are found
under the Election Code to cater to Copacobanas complaint/petition.
(RICARDO "BOY" CANICOSA vs. COMMISSION ON ELECTIONS, ET AL G.R. No.
98

120318 December 5, 1997. On 15 May 1995) Indeed, the

cited

by

Copacabana

do

NOT

grounds

warrant

declaration of failure of election. Section 6

of BP Blg. 881, otherwise known as the Omnibus Election Code, reads:Sec. 6. Failure of
election If, on account of force majeure, violence, terrorism, fraud, or other analogous
causes the election in any polling place has not been held on the date fixed, or had been
suspended before the hour fixed by law for the closing of the voting, or after the voting and
during the preparation and the transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect, and in any of such cases the
failure or suspension of election would affect the result of the election, the Commission shall,
on the basis of a verified petition by any interested party and after due notice and hearing,
call for the holding or continuation of the election not held, suspended or which resulted in a
failure to elect on a date reasonably close to the date of the election not held, suspended or
which resulted in a failure to elect but not later than thirty days after the cessation of the
cause of such postponement or suspension of the election or failure to elect.Clearly, there
are only three (3) instances where a failure of election may be declared, namely: (a) the
election in any polling place has not been held on the date fixed on account of force
majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling
place had been suspended before the hour fixed by law for the closing of the voting on
account of force majeure, violence, terrorism, fraud, or other analogous causes; or (c) after
the voting and during the preparation and transmission of the election returns or in the
custody or canvass thereof, such election results in a failure to elect on account of force
majeure. violence, terrorism, fraud, or other analogous causes.None of the grounds invoked
by Canicosa falls under any of those enumerated.The remedies could have been petitions for
inclusion, annulment of book of voters, or his watchers could have filed the protests as a
manner of summary pre-election remedies.
3. The (Jose Nunag) petitioner and the private respondent (Pedro Datoy) were candidates for
the position of Punong Barangay of Barangay Nilombot, Sta. Barbara, Pangasinan, in the
barangay election of 9 May 1994. After the canvass of votes in the said barangay, the former
was proclaimed as the winning candidate. The latter then seasonably filed an election
protest with the Municipal Trial Court (MTC) of Sta. Barbara, Pangasinan.
On 27 May 1994, the MTC, per Judge Lilia C. Espaol, rendered a decision
confirming the proclamation of the petitioner and dismissing the protest of the private
respondent.
The private respondent appealed the decision to the Regional Trial Court (RTC) of
Dagupan City. The case was assigned to Branch 42 thereof.
In its decision 2 of 31 August 1994, the RTC, per respondent Judge Luis M.
Fontanilla, reversed the decision of the MTC, annulled the proclamation of the petitioner, and
declared the private respondent as the winning candidate with a plurality of four votes over
the petitioner.
After the petitioner's motion for reconsideration of the decision was denied on 25 November
1994, the private respondent immediately filed a motion for the issuance of a writ of
99

execution
QUESTION: On the basis of the facts above stated, who should be the rightful winner of the
election?
Jose Nunag, the petitioner should be the rightful baangay captain. By analogy, the
case of GUIEB is applicable.(G.R. No. 118118,August 14, 1995ALFREDO GUIEB vs. LUIS M.
FONTANILLA, ET AL.) The private respondent should have appealed the decision of the MTC
to the COMELEC; the MTC should not have given due course to the appeal; and the RTC
should have dismissed outright the appeal for want of jurisdiction.In accepting the appeal
and deciding the case on its merits, the respondent judge manifested either ignorance or
palpable disregard of the aforesaid constitutional provision and decision. It must be noted
that a judge is presumed to know the constitutional limits of the authority or jurisdiction of
his court. He is called upon to exhibit more than just a cursory acquaintance with the laws; it
is imperative that he be conversant with basic legal principles. 16 Canon 4 of the Canons of
Judicial Ethics requires that a judge should be "studious of the principles of the law." Thus, if
the respondent judge were only aware of the aforementioned constitutional provision and
decision, he would have cut short the journey of a very simple case and put an end to the
litigation. What this Court stated in Aducayen vs. Flores 17 deserves reiteration:Nor is this all
that has to be said. There is need, it does seem, to caution anew judges of inferior courts,
which according to the Constitution refer to all those outside this Tribunal, to exercise
greater care in the discharge of their judicial functions. They are called upon to exhibit more
than just a cursory acquaintance with statutes and procedural rules. Moreover, while it
becomes hourly difficult to keep abreast of our ever-increasing decisions, a modicum of
effort should be exerted by them not to lag too far behind. Nor is it too much to expect that
they betray awareness of well-settled and authoritative doctrines. If such were the case,
then resort to us would be less frequent. That way our time could be devoted to questions of
greater significance. Not only that, there would be on the part of party litigants less expense
and greater faith in the administration of justice, if there be a belief on their part that the
occupants of the bench cannot justly be accused of an apparent deficiency in their grasp of
legal principles. Such an indictment unfortunately cannot just be dismissed as a
manifestation of chronic fault-finding. The situation thus calls for a more conscientious and
diligent approach to the discharge of judicial functions to avoid the imputation that there is
on the part of a number of judges less than full and adequate comprehension of the
law.WHEREFORE, the instant petition is GRANTED. The challenged decision of 31 August
1994 of Branch 42 of the Regional Trial Court of Dagupan City and its order of 25 November
1994 denying the petitioner's motion for reconsideration are hereby SET ASIDE and
ANNULLED for lack of jurisdiction on the part of the said court to entertain and decide the
appeal. The decision of 27 May 1994 of the Municipal Trial Court of Sta. Barbara, Pangasinan,
is hereby declared final for failure of the private respondent to appeal the same before the
proper forum, and the writ of execution to enforce the decision of the Regional Trial Court is
hereby SET ASIDE and ANNULLED.
4.

These

cases

were

consolidated

because

they

have

the

same

objective;

the

disqualification under Section 68 of the Omnibus Election Code of the private respondent,
Merito Miguel for the position of municipal mayor of Bolinao, Pangasinan, to which he was
elected in the local elections of January 18, 1988, on the ground that he is a green card
holder, hence, a permanent resident of the United States of America, not of Bolinao.
100

G.R. No. 84508 is a petition for review on certiorari of the decision dated January
13, 1988 of the COMELEC First Division, dismissing the three (3') petitions of Anecito
Cascante (SPC No. 87-551), Cederico Catabay (SPC No. 87- 595) and Josefino C. Celeste (SPC
No. 87-604), for the disqualification of Merito C. Miguel filed prior to the local elections on
January 18, 1988.
G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of the
decision dated June 21, 1989, of the Court of Appeals in CA-G.R. SP No. 14531 dismissing the
petition for quo warranto filed by Mateo Caasi, a rival candidate for the position of municipal
mayor of Bolinao, Pangasinan, also to disqualify Merito Miguel on account of his being a
green card holder.
In his answer to both petitions, Miguel admitted that he holds a green card issued
to him by the US Immigration Service, but he denied that he is a permanent resident of the
United States. He allegedly obtained the green card for convenience in order that he may
freely enter the United States for his periodic medical examination and to visit his children
there. He alleged that he is a permanent resident of Bolinao, Pangasinan, that he voted in all
previous elections, including the plebiscite on February 2,1987 for the ratification of the
1987 Constitution, and the congressional elections on May 18,1987.
After hearing the consolidated petitions before it, the COMELEC with the exception
of Commissioner Anacleto Badoy, Jr., dismissed the petitions on the ground that:

The possession of a green card by the respondent

(Miguel)

does

not

sufficiently

establish

that

abandoned his residence in the Philippines .

he

has

On the contrary,

inspite (sic) of his green card, Respondent has sufficiently

indicated his intention to continuously reside in Bolinao as
shown by his having voted in successive elections in said
municipality.

As

the

respondent

meets

the

basic

requirements of citizenship and residence for candidates

to elective local officials (sic) as provided for in Section 42
of the Local Government Code, there is no legal obstacle
to his candidacy for mayor of Bolinao, Pangasinan.
QUESTION: Is the ruling of the COMELEC correct? Discuss.

ANSWER:The comelec is

INCORRECT.Miguel

did

NOT posses

the proper qualification. (G.R. No. 88831November 8, 1990MATEO

CAASI vs. THE HON. COURT OF APPEALS, ET AL.) Respondent Merito Miguel admits that he
holds

green card,

resident

or

which

immigrant

records of this case are

proves

that

it of the

he

is

permanent

United States,

but the

starkly bare of proof that he had

101

waived his status as such

mayor of Bolinao on January 18, 1988. We,

disqualified to become

before he ran for election as municipal

therefore,

hold that he was

a candidate for that office. The reason for

Section 68 of the Omnibus Election Code is not hard to find. Residence in the municipality
where he intends to run for elective office for at least one (1) year at the time of filing his
certificate of candidacy, is one of the qualifications that a candidate for elective public office
must possess (Sec. 42, Chap. 1, Title 2, Local Government Code). Miguel did not possess
that qualification because he was a permanent resident of the United States and he resided
in Bolinao for a period of only three (3) months (not one year) after his return to the
Philippines in November 1987 and before he ran for mayor of that municipality on January
18, 1988.In banning from elective public office Philippine citizens who are permanent
residents or immigrants of a foreign country, the

Omnibus Election Code

has laid down a clear policy of excluding from the

right to hold elective public office those Philippine
citizens who possess dual loyalties and allegiance.
The law has reserved that privilege for its citizens who have cast their lot with our country
"without mental reservations or purpose of evasion." The
those who are
are

resident aliens

incapable

of such

of a

assumption

is that

foreign country

entire devotion to the

interest and welfare of their homeland

for with one eye on their public duties
here, they must keep another eye on
their

duties

under

the

laws

of

the

foreign country of their choice in order

to preserve their status as permanent
residents thereof.Miguel

insists that even though he applied for

immigration and permanent residence in the United States, he never really intended to live
there permanently, for all that he wanted was a green card to enable him to come and go to
the U.S. with ease. In other words, he would have this Court believe that he applied for
immigration to the U.S. under false pretenses; that all this time he only had one foot in the
United States but kept his other foot in the Philippines. Even if that were true, this Court will
not allow itself to be a party to his duplicity by permitting him to benefit from it, and giving
him the best of both worlds so to speak. Miguel's application for immigrant status and
102

permanent residence in the U.S. and his possession of a green card attesting to such status
are conclusive proof that he is a permanent resident of the U.S. despite his occasional visits
to the Philippines. The waiver of such immigrant status should be as indubitable as his
application for it.

Absent clear evidence that he made

an irrevocable waiver of that status or that

he

surrendered

his

green

card

to

the

appropriate U.S. authorities before he ran for

mayor of Bolinao in the local elections on
January 18, 1988, our conclusion is that he
was disqualified to run for said public office,
hence, his election thereto was null and void.

5. During the May 8, 1995 elections, Borja and private respondent Jose T. Capco vied for the
position of Mayor of the Municipality of Pateros, which was won by Capco by a margin of
6,330 votes. Capco was consequently proclaimed and has since been serving as Mayor of
Pateros.
Alleging lack of notice of the date and time of canvass, fraud, violence terrorism
and analogous causes, such as disenfranchisement of voters, presence of flying voters, and
unqualified members of the Board of Election Inspectors, Borja filed before the COMELEC a
petition to declare a failure of election and nullify the canvass and proclamation made by the
Pateros Board of Canvassers.
The COMELEC en banc dismissed his petition.
Aggrieved by said resolution, petitioner elevated the matter to Supreme Court,
arguing the same matters while claiming that the COMELEC committed grave abuse of
discretion in issuing the questioned resolution of May 25, 1995. He avers that the COMELEC
en banc does not have the power to hear and decide the merits of the petition he filed below
because under Article IX-C, Section 3 of the Constitution, all election cases, including preproclamation controversies, "shall be heard and decided in division, provided that motions
for reconsideration of decision shall be decided by the Commission en banc."
QUESTION: Is the contention of the petitioner tenable? Is the procedure adopted proper? On
the above facts, who should be the rightful mayor?

tenable;
thenis the

the

procedure

adopted was

rightful mayor.(G.R.

Contention

is

not

improper; Capco

No. 120140,August 21, 1996BENJAMIN U.

BORJA, JR. vs. COMMISSION ON ELECTIONS, ET AL). In reality, Borja's petition was nothing
but

simple

election

protest

involving

an

elective
103

municipal position
falls

within

the

which, under Section 251 of the Election Code,

exclusive original jurisdiction

Regional Trial Court.

appropriate

of

the

Section 251 states:Sec. 251.

Election contests for municipal offices. A sworn petition contesting the election of a
municipal officer shall be filed with the proper regional trial court by any candidate who has
duly filed a certificate of candidacy and has been voted for the same office, within ten days
after

proclamation

COMELEC

of

the

in

results

of

the

turn

election.

(Emphasis

exercises

supplied)

The

appellate

jurisdiction over the trial court's decision pursuant

to Article IX-C, Section 2(2) of the Constitution which states:Sec. 2. The Commission on
Elections shall exercise the following powers and functions: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.

The

COMELEC, therefore, had no choice but to dismiss Borja's petition, not only for being

deficient in form

but

also

for

having

been

filed

before

the

wrong tribunal. This reason need not even be stated in the body of the
decision as the same is patent on the face of the pleading itself. Nor can Borja claim that he
was denied due process because when the COMELEC en banc reviewed and evaluated his
petition, the same was tantamount to a fair "hearing" of his case. The fact that Capco was
not even ordered to rebut the allegations therein certainly did not deprive him of his day in
court. If anybody here was aggrieved by the alleged lack of notice and hearing, it was Capco
whose arguments were never ventilated. If he remained complacent, it was because the
COMELEC's actuation was favorable to him.

cannot

be

discretion,

said
let

to
alone

Certainly, the COMELEC

have

committed

grave

abuse

abuse

of

thereof,

in

dismissing Borja's petition. For having applied the

clear

provisions

of

the

law,

it

deserves,

not

condemnation, but commendation.

104

6. For your resolution is a petition for certiorari under Rule 65 which seeks to annul and set
aside the resolution dated May 7, 2001 of the Commission on Elections as well as the
resolution dated May 12, 2001 denying petitioners motion for reconsideration.
This petition originated from a case filed by private respondent on March 21, 2001
for

the

disqualification

candidate
ground

that

of

petitioner

Nestor

Magno

mayoralty

as

of San Isidro, Nueva Ecija during the May 14, 2001 elections on the

petitioner

was

previously convicted by the

Sandiganbayan

of

four

counts

of

direct

bribery penalized under Article 210 of the Revised Penal Code. It appears that on

July 25, 1995, petitioner was sentenced to suffer the indeterminate penalty
of 3 months and 11 days of arresto mayor as minimum to 1 year 8 months and 21 days of
prision correccional as maximum, for each of the four counts of direct bribery. Thereafter,
petitioner applied for probation and was discharged on March 5, 1998 upon order of the
Regional Trial Court of Gapan, Nueva Ecija.
On May 7, 2001, the Commission on Elections (COMELEC) rendered a decision granting
the petition of private respondent and declaring that petitioner was disqualified from running
for the position of mayor in the May 14, 2001 elections.
QUESTION: IS THE COMELEC correct in its ruling? Explain your answer.
ANSWER: COMELEC was

wrong. THE appplicable provision is the Local Government

Code, which states that a person

qualified

to

run

convicted
after

service of sentence
discharge
7.

It

appears

that

of

while

the

the

suit before the COMELEC by filing a

Quezon

election

candidates were

canvassing

two

years

in the case

still

from

at bar from

probation.

canvassing
winning

or

of a crime is

City

returns

Board

but

of

Canvassers

was

BEFORE

the

proclaimed,

petition

of votes and/or

seeking to

petitioner commenced

suspend

proclamation

the

in Quezon City and

105

to

declare a failure of elections.

In support of his allegation of massive and orchestrated fraud, petitioner cited

specific instances which are summarized and set forth below:

1. The Board of Canvassers announced that election returns with no inner seal
would be included in the canvass;
2. Board of Election Inspectors brought home copies of election returns meant
for the City Board of Canvassers;
3. Petitioner, through counsel, raised written objections to the inclusion in the
canvass of election returns which were either tampered with, altered or
falsified, or otherwise not authentic;
4. According to the minutes of the City Board of Canvassers, there were
precincts with missing election returns;
5. Several election returns with no data on the number of votes cast for vice
mayoralty position;
6. Highly suspicious persons sneaking in some election returns and documents
into the canvassing area;
7. Concerned citizen found minutes of the counting, keys, locks and metal seal
in the COMELEC area for disposal as trash;
8. Board of Election Inspectors have volunteered information that they placed
the copy of the election returns meant for the City Board of Canvassers in the
ballot boxes deposited with the City Treasurer allegedly due to fatigue and
lack of sleep;
9. Ballot boxes were never in the custody of the COMELEC and neither the
parties nor their watchers were allowed to enter the restricted area where
these boxes passed through on the way to the basement of the City Hall
where they were supposedly kept; and
10. In the election in Barangay New Era, there was a clear patters of voting which
would show that the election returns were manufactured and that no actual
voting by duly qualified voters took place therein.

While

the

petition

COMELEC,

the

was

pending

before

the

City Board of Canvassers

proclaimed the winners

of the elections in Quezon City,

including the winning candidate for the post of vice mayor. On June 22, 1998, the COMELEC
promulgated its challenged resolution dismissing the petition before it.
Hence this petition.
Alleging

that

COMELEC overstepped the limits of

reasonable exercise of discretion

98-134, petitioner argues in the main that the

in dismissing SPC No.

electoral body failed

to afford him basic due process, that is, the

right

to a

hearing and presentation of evidence

before ruling on his petition. He then proceeded to argue that the election returns
106

themselves, as well as the minutes of the canvassing committee of the City Board of
Canvassers were, by themselves, sufficient evidence to support the petition.
QUESTIONS:
1) Rule on the contention of the petitioner: whether he was deprived of due process.
2)Are his grounds valid to justify a failure of election?

NO.

No.

3) In your opinion, is the remedy availed by him proper? If not proper, what is the corrct

No

remedy under the premises?

ANSWER: He was not deprived of due process; hs grounds are pre-proclamation

contorversies which do not justify a failure of election; the remedies availed are not proper.
(see:G.R. No. 134096,March 3, 1999JOSEPH PETER S. SISON vs. COMMISSION ON
ELECTIONS) We have painstakingly examined petitioner's petition before the COMELEC but
found

nothing

declaration

alleged

therein

at all that

support

elections

bereft

describe just exaclty how the

of any

an

action

for

He

never

not held or

were either

Furthermore, petitioner's claim of

stood as a bare conclusion

With respect to

could

failure of elections.

of

suspended.

that

failure to elect

substantive support

failure to elect

to

came about.

pre-proclamation controversy,

it is well to

note that the scope of pre-proclamation controversy is only limited to the issues enumerated
under

Section 243 10 of the Omnibus Election Code , and

the enumeration therein is

reason

restrictive and exclusive.

underlying the

delimitation

and procedure is the policy of the election law that

controversies
consistent

should be

with the law's

11 The

both of substantive ground

pre-proclamation

summarily decide,

desire

that the

canvass

and

proclamation be delayed as little as

possible.

12

That

is

why

such

questions

which

require

more
107

deliberate

necessarily

and

consideration,

are

left

for

examination

in

longer
the

corresponding

protest. 13
However,

with the proclamation

of the winning candidate for the

position contested, the question of whether the petition raised

a

issues

proper

for

pre-proclamation controversy is already

of NO CONSEQUENCE
situation is that a

COMELEC

is

remedies
for

since the well-entrenched rule in such

pre-proclamation case

no longer viable,
being a regular

the

more

appropriate

election protest

quo warranto

before the

or a petition

. 14 We have carefully reviewed all recognized

exceptions 15 to the foregoing rule but found nothing that could possibly apply to the
instant case based on the recitations of the petition. What is more, in paragraph 3 of the
COMELEC's Omnibus Resolution No. 3049 (Omnibus Resolution on Pending Cases) dated June
29, 1998, it is clearly stated therein that "All other pre-proclamation cases . . . shall be
deemed terminated pursuant to Section 16, R.A. 7166. 16 (Emphasis supplied). Section 16
which

is

referred

to

in

the

aforecited

omnibus

resolution

refers

to

the

termination of pre-proclamation cases

when the term of the office involved has
already begun, which is precisely what obtains here. We are, of course,
aware that petitioner cites the said omnibus resolution in maintaining that his petition is one
of those cases which should have remained active pursuant to paragraph 4 thereof. That
exception, however, operates only when what is involved is not pre-proclamation
controversy such as petitions for disqualification, failure of election or analogous cases. But
as we have earlier declared, his petition, though assuming to seek a declaration of failure of
elections, is actually a case of pre-proclamation controversy and, hence, not falling within
the ambit of the exception. In any case, that omnibus resolution would not have been
applied in the first place because that was issued posterior to the date when the herein
challenged resolution was promulgated which is June 22, 1998. There was no provision that
such omnibus resolution should have retroactive effect.
108

Finally, as to petitioner's claim that he was

process

deprived of his right to due

in that he was not allowed to present his evidence before the COMELEC to

support his petition, the same must likewise

First, we note that his

fail.

citation of Section 242 of the Omnibus

Election Code

as basis for his right to present evidence is

misplaced. The

phrase "after due notice" refers only to a situation where the

COMELEC

decides and, in fact, takes steps to either

partially or totally suspend or annul the
proclamation of any candidate-elect.

Verba legis non

est recedendum. From the words of the statute there should be no departure. The statutory
provision cannot be expanded to embrace any other situation not contemplated therein such
as the one at bar where the COMELEC is not taking ant step to suspend or annul a
proclamation.
8. As a general rule, the filing of the election protest or a petition for quo warranto precludes
the subsequent filing of a pre-proclamation controversy, or amount to the abadonment of
one earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon
the title of the protestee or the validity of his proclamation.
1.What is the reason for this general rule?

The abovementioned provision

is no longer viable.
2.What are the exceptions to the general rule above cited.

> BOC were improperly constituted

>quo warranto was not a proper remedy
>when an E.P or Q. Warranto was filed but truth and in fact,
it was a petition to annul the election
>the filing of the EP or QW was expressly made without
prejudice to the pre-election controversy
>proclamation was null and void
ANSWER: Conformably therewith, we have ruled in a number of cases

that a

proclamation has been made a pre-proclamation case before the

COMELEC is, logically,

no longer viable.(Gallardo

v. Rimando,

G.R. No. 91798, 13 July 1990, 187 SCRA 463; Casimiro v. COMELEC, G.R. Nos. 84462-63, 29
March 1989, 171 SCRA 468; Salvacion v. COMELEC, G.R. Nos. 84673-74, 21 February 1989,
170 SCRA 513; Padilla v. COMELEC, G.R. Nos. 68351-52, 9 July 1985, 137 SCRA 424.) The
109

rule

admits

canvassers

not

the

exceptions,

of

was

board

of

improperly constituted; (b) quo warranto

was

proper remedy;

petition

for

or

(c)

as

where:

(a)

what was filed

the

was

not

really a

quo warranto or an election protest but

petition to annul
petition

however,

an

a proclamation; (d) the

election

protest

filling of a quo warranto

was

expressly

made

WITHOUT prejudice to the pre-proclamation controversy

was made ad cautelam; and, (e) the

proclamation

was

null

and

or

void.(see

Laodenio and Samad, or p. 514, Agpalo)

9.The general rule is that all election cases be first heard and decided by the COMELEC in
division. There are five exeptions to this rule. State these five exceptions.
ANSWER:
1. When what is involved is

2.

purely administrative

and

not

quasi-judicial matter/nature
When
the
required
number
of
votes cannot

be

obtained by the division

3.Declaration

of

failure

of

election/postponement of election pettitions

COMELECs prosecutory powers

estoppel cases, when petitioner invokes the

4. In the exercise of
5. In

jurisdiction

of

COMELEC en banc.(see

p.

111

Agpalo)
10. FELIPE L. LAODENIO, petitioner, and ROGELIO LONGCOP, respondent, were candidates
for the position of Mayor of Mapanas, Northern Samar, during the 8 May 1995 elections. On
15 May 1995 Longcop was proclaimed winner by the Municipal Board of Canvassers.On 20
May 1995 Laodenio filed a petition with respondent Commission on Elections (COMELEC) to
annul the proclamation of Longcop and to declare illegal the constitution of the Municipal
Board of Canvassers as well as its proceedings. He alleged in his petition that
During the canvass, respondent board of canvassers adjourned repeatedly starting May 9,
1995, after the poll clerk of precinct no. 7-A testified before the Board that the election
returns for the said precinct was tampered with and falsified to increase the total votes cast
in favor of respondent Longcop from 88 to 188.
On 10 May 1995, the Board resumed its canvass but it adjourned again at past 5:00 o'clock
in the afternoon as it has (sic) not yet decided on what to do with the election returns for
precinct (sic) nos. 7-A and 5-A. When it adjourned on May 10, 1995 it announced that it will
(sic) only resume canvass on 12 May 1995 at the capital town of Catarman, Northern Samar.
110

The Board however reconvened on 12 May 1995 in Mapanas and proceeded with the
canvass. The respondent board thereafter adjourned and surreptitiously reconvened on 15
May 1995, with a new chairman who was allegedly appointed by the Provincial Election
Supervisor.When the election returns from Precinct (sic) Nos. 5-A and 7-A were (sic) about to
be canvassed, petitioner manifested his oral objections thereto and likewise submitted his
written objection on the same day, 12 May 1995.
The respondent board however did not give the petitioner opportunity of file an appeal
(from?) its decision to proceed with the canvass of the election returns from precinct (sic)
nos. 7-A and 5-A. fter a thorough discussion of the two legal counsel, the members of the
board of canvassers denied the objections of Laodenio on the ground that an oral objection
should simultaneously be filed with a written objection in a proper form. Majority of the
board voted for the inclusion of the returns from precinct 7-A on the ground that the protest
was not in proper form. The parties were notified of the ruling of the Board in open session.
The Chairman of the Board start(ed?) to open the envelopeof precinct no. 7-A and the same
was examined by counsel of the both parties. 7The Board, upon examination of the returns
from precinct 7-A; found it to be inside an envelope with serial no. 073983 signed by all the
members of the Board and with paper seal no. 516478 likewise signed by all of them. The
returns bore the respective signatures and thumbmarks of the poll clerk, the third member
and all six watchers. The Minutes disclosed further that on May 12, 1995, at 2:00 p.m., the
members of the Board resume to canvass the election returns for precinct 7-A. It was
supposed to canvass last May 10, 1995, but was deferred because the Board waited for
protestant Laodenio to file his appeal from our ruling on May 10, 1995. Since there was no
appeal, the Board proceeded with the canvass of precinct 7-A.
At 2:37 p.m., Laodenio filed his protest in proper form but the board denied the protest on
the ground that it was filed out of time. The protest was filed after the canvass of the
election returns was completed. With regard to the action of the Board on the election
returns from precinct 5-A, the Minutes narrated as follows Precinct 5-A. An envelope with
serial no. 073973 signed by all the members of the board with paper seal. The envelope is in
good condition. The election returns was properly signed by all members of the board with
their thumbmarks and the watchers have also their signatures and thumbmarks in the
corresponding spaces. An oral protest was filed by petitioner. At 4:49 p.m., a protest in
prescribed form was filed. At 8:00 p.m., the Board of Canvassers voted as follows: The
chairman for exclusion and the two members for inclusion because on its face the election
returns does not have any sign of tampering and that when the election returns copy for the
Municipal Trial Court was opened to compare with the contested returns the entries are (sic)
the same. The parties were informed of the ruling in open session. After the ruling, the
protestant did not indicate his intention to appeal.
On 25 May 1995 petitioner filed an election protest before the Regional Trial Court.
On 28 August 1995 respondent COMELEC dismissed the petition of Laodenio for
lack of merit. 2 It was of the view that the adjournments were justified and were not
improperly prolonged as claimed by petitioner; he was in fact deemed to have acquiesced to
the new composition of the Municipal Board of Canvassers when he actively participated in
the proceedings therein; there was no showing that he manifested on time his intent to
appeal the rulings of the Board, neither was there any proof that he appealed therefrom;
and, on the authority of Padilla v. Commission on Elections 3 the pre-proclamation
controversy was no longer viable since Longcop had already been proclaimed and had
assumed office. On 23 October 1995 the motion for reconsideration was denied. 4
111

Petitioner raises these issues: (1) The direct filing of a petition with COMELEC to
contest the illegal conduct of the Board of Canvassers is allowed under Rule 27, Sec. 4, of
the COMELEC Rules of Procedure; and, (2) The pre-proclamation controversy was not
rendered moot and academic by the filing of an ordinary election protest
QUESTION: Is LAODENIO correct?

ANSWER: Laodenio is

filing of the

incorrect. ALTHOUGH

PETITION

COMPOSITION
directly to the

of the

to

QUESTION

BOC

may

the
the

BE DONE

COMELEC, yet the same

must be filed at the first instance

before the Board,

and

only when it

has ruled adverse to him, that he

must

file

COMELEC,

his

appeal

to

the

within a period of five days. This

Laodenio did not do. Clearly, the proceedings of

the Board were in accordance with law.
Petitioner argues next that the election protest was filed ad cautelam or as a
precautionary measures to preserve his rights which did not thereby oust respondent
COMELEC of jurisdiction. He invokes Samad v. COMELEC 10 where it was held that, as a
general rule, the filing of an election protest or a petition for quo warranto precludes the
subsequent filing of a pre-proclamation controversy or amounts to the abandonment of one
earlier filed, thus depriving the COMELEC of the authority to inquire into and pass upon the
title of the protestee or the validity of his proclamation. The reason is that once the
competent tribunal has acquired jurisdiction of an election protest or a petition for quo
warranto all question relative thereto will have to be decided in the case itself and not in
another proceeding, otherwise, there will be confusion and conflict of authority. Conformably
therewith, we have ruled in a number of cases that a proclamation has been made a preproclamation case before the COMELEC is, logically, no longer viable. 11 The rule admits of
exceptions, however, as where: (a) the board of canvassers was improperly constituted; (b)
quo warranto was not the proper remedy; (c) what was filed was not really a petition for quo

112

warranto or an election protest but a petition to annul a proclamation; (d)

the filling

of a quo warranto petition or an election protest

was expressly made without prejudice to the preproclamation
cautelam;

controversy

or

was

made

ad

and, (e) the proclamation was null and void.

Petitioner relies on the fourth exception and invokes Agbayani v. Commission on

Elections 12 where the Court found that petitioner's real intention in filing the election
protest ad cautelam was to insure the preservation of all the ballot boxes used in the local
elections: Thus: Under COMELEC Res. No. 2035 dated September 7, 1988, all such ballot
boxes would be made available for the then forthcoming barangays elections as long as they
were not involved in any pre-proclamation controversy, election protest or official
investigation. As the above-mentioned cases involved only nine precincts, it was only
prudent for the petitioner to file his protest ad cautelam in case the pre-proclamation
controversy was ultimately dismissed and it becomes necessary for him to activate his
protest. The protest would involve all the precincts in the province. If he had not taken this
precaution, all the other ballots boxes would have been emptied and their contents would
have been burned and forever lost.
But, a distinction must be drawn between Agbayani and the instant case.

Petitioner here simply

protest

was

alleges

filed

as a

that the

election

precautionary

measure to preserve his rights

without bothering to elaborate thereon . There is no reason at all for
the exception to apply in the case before us. Rather, COMELEC's reliance on Padilla is the
more

appropriated

remedy.

Respondent

Longcop

having

been

proclaimed and having assumed office . . . . preproclamation controversy is no longer viable at

this point of time and should be dismissed . . . .
Pre-proclamation

proceedings

are

summary

in

nature. These was no full-dress hearing essential

to the task of adjudication with respect to the
serious charges of "irregularities," etc., made by
113

petitioner.

An

ELECTION CONTEST WOULD

BE THE MOST APPROPRIATE REMEDY.

Instead of the submission of mere affidavits, the parties would be able to present witnesses
subject to the right of confrontation, etc. Recourse to such remedy would settle the matters
in controversy "conclusively and once and for all.(see FELIPE L. LAODENIO vs. COMMISSION
ON ELECTIONS, ET AL G.R. No. 122391,August 7, 1997).
11. It appears that Cong. Pedro P. Romualdo and Gov. Antonio R. Gallardo were both
candidates in the May 11, 1992 elections for the positions of congressmen and governor,
respectively, of Camiguin. They belonged to opposing political factions and were in a bitter
electoral battle.
On April 10, 1992 or about a month before the elections, Cong. Romualdo filed a
petition docketed as Special Civil Action No. 465 before the Regional Trial Court of Camiguin
(Br. 28) presided over by respondent Judge Tabamo against Gov. Gallardo, the Provincial
Treasurer, the Provincial Auditor, the Provincial Engineer, and the Provincial Budget Officer as
respondents. In this petition Cong. Romualdo sought to prohibit and restrain the respondents
from undertaking and/or pursuing certain public works projects and from disbursing,
releasing, and/or spending public funds for said projects, allegedly because, among other
reasons, said projects were undertaken in violation of the 45-day ban on public works
imposed by the Omnibus Election Code (B.P. Blg. 881); that the public works projects were
commenced without the approved detailed engineering plans and specification and
corresponding program of works; that the expenditures of the 20% development fund for
projects other than for maintenance violated the Local Government Code; that locally funded
projects had been pursued without the provincial budget having been first approved, and
reviewed by the Department of Budget and Management; and that the illegal prosecution of
the said public works projects requiring massive outlay or public funds during the election
period was done maliciously and intentionally to corrupt voters and induce them to support
the candidacy of Gov. Gallardo and his ticket in the May 11, 1992 elections.
In the afternoon of the same day that the petition was filed, Judge Tabamo issued a
temporary restraining order as prayed for by the petitioner Cong. Romualdo, as follows:
It appearing from the verified petition in this case that great and irreparable
damage and/or injury shall be caused to the petitioner as candidate and taxpayer, such
damage or 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 project
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 the said projects.
In the same Order of April 10, 1993 the judge gave the respondents ten (10) days
from receipt of a copy of the petition to answer the same, and set the prayer for the
issuance of a preliminary injunction for hearing on April 24, 1992 at 8:30 A.M.
114

IS THE act of the judge valid under the circumstances? Explain.

The act of the judge is invalid.(ANTONIO A. GALLARDO vs. JUDGE SINFOROSO V. TABAMO,
JR., respondent. EN BANC [A.M. No. RTJ-92-881. June 22, 1994.]) Zaldivar vs. Estenzo, (23
SCRA 533 [1968]). 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 clear and unmistakable in recent decisions." "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 law." 24 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 Acting Chief Justice J.B.L.
Reyes in Albano v. Arranz, 25 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."
12.Distinguish the following:

a.

election protest

from a

pre-proclamation

controversy
PRE PROC
PRE-PROCLAMATION CONTROVERSIES
Sec. 241. Definition. - A pre-proclamation controversy refers to
affecting

the

proceedings

CANVASSERS
or coalition of political parties

of

any question

the

pertaining to or

BOARD

OF

which may be raised by any candidate or by any registered political party

before the board or directly with the Commission,

preparation,
transmission, receipt, custody and appreciation of the
or any matter raised under Sections 233, 234, 235 and 236 in relation to the

ELECTION RETURNS.
2
3
4

Sec. 243. Issues that may be raised in pre-proclamation controversy. - The following shall be proper issues
that may be raised in a pre-proclamation controversy:
Illegal composition or proceedings of the board of canvassers;
The canvassed election returns are incomplete, contain material defects, appear to be tampered with or falsified, or
contain discrepancies in the same returns or in other authentic copies thereof as mentioned in Sections 233, 234,

115

5
6
7
8

235 and 236 of this Code;

The election returns were prepared under duress, threats, coercion, or intimidation, or they are obviously
manufactured or not authentic; and
When substitute or fraudulent returns in controverted polling places were canvassed, the results of which materially
affected the standing of the aggrieved candidate or candidates.
Sec. 246. Summary proceedings before the Commission. - All pre-proclamation controversies shall be heard
summarily by the Commission after due notice and hearing, and its decisions shall be

the lapse

of

FIVE DAYS

executory after

from receipt by the losing party of the decision of the

Commission, unless restrained by the Supreme Court.

Sec. 247. Partial proclamation. - Notwithstanding the pendency of any pre-proclamation controversy, the
Commission may, motu proprio or upon the filing of a verified petition and after due notice and hearing, order the
proclamation of other winning candidates whose election will not be affected by the outcome of the controversy.
Sec. 248. Effect of filing petition to annual or to suspend the proclamation. - The filing with the
Commission of a petition to annual or to suspend the proclamation of any candidate shall suspend the running of
the period within which to file an election protest or quo warranto proceedings.

ELECTION PROTEST

Election protest. - A petition

returns

contesting

the

elections

or

of an elective regional, provincial, or city official shall be filed

with the Commission by any candidate who was voted for in the same office
and who Commission by any candidate who was voted for in the same office
and who received the second or third highest number of votes or, in a multislot position, was among the next four candidates following the last ranked
winner duly proclaimed, as reflected in the official results of the election
contained in the Statement of Votes. The party filing the protest shall be
designated as the protestant; the adverse party shall be known as the
protestee.

b. election protest from a qou warranto proceeding

QUO warranto Any voter contesting the election of any

regional,

provincial

or

city

official

on

the

ground

of

INELIGIBILITY OR OF DISLOYALTY TO
THE REPUBLIC of the Philippines may file a petition for
quo

warranto

Department.

with

the

Electoral

Contests

Adjudication

chanrobles virtual law library

13. In a decision of the Commission on Elections that declared the Luis Hapitan as the real
winner in an election contest, it awarded damages, consisting of attorney's fees, actual
expenses for xerox copies, unearned salary and other emoluments for the period, from
March 1994 to April, 1995, en masse denominated as actual damages.
Is this decision allowable under the Election Code? Explain.
116

The decision is flawed.T he general rule is that no damages shall be allowed in

election contests.G.R. No. 120193 March 6, 1996LUIS MALALUAN vs. COMMISSION ON
ELECTIONS, ET AL. We have painstakingly gone over the records of this case and we can
attribute to petitioner no breach of contract or quasi-contract; or tortious act nor crime that
may make him liable for actual damages. Neither has private respondent been "able to point
out to a specific provision of law authorizing a money claim for election protest expenses
against the losing party." We find respondent COMELEC's reasoning in awarding the
damages in question to be fatally flawed. The COMELEC found the election protest filed by
the petitioner to be clearly unfounded because its own appreciation of the contested ballots
yielded results contrary to those of the trial court. Assuming, ex gratia argumentis, that this
is a reasonable observation not without basis, it is nonetheless fallacious to conclude a
malicious intention on the part of petitioner to molest private respondent on the basis of
what respondent COMELEC perceived as an erroneous ruling of the trial court. In other
words, the actuations of the trial court, after the filing of a case before it, are its own, and
any alleged error on its part does not, in the absence of clear proof, make the suit "clearly
unfounded" for which the complainant ought to be penalized. Insofar as the award of protest
expenses and attorney's fees are concerned, therefore we find them to have been awarded
by respondent COMELEC without basis, the election protest not having been a clearly
unfounded one under the aforementioned circumstances.

14. Distinguish the enforcement from the quasi-judicial jurisdiction of the COMELEC.Cite
examples.
15. During the May 8, 1995 elections, petitioner Corazon L. Cabagnot and private
respondent Florencio T. Miraflores were candidates for the governorship of Aklan province.
Miraflores was proclaimed winner by the Provincial Board of Canvassers. Alleging various
irregularities, Cabagnot filed on May 16, 1995 with the respondent Commission a
"Memorandum of Appeal" 3 docketed as Comelec Case No. SPC 95-094 and a "Petition" for
disqualification of Miraflores 4 identified as Sp. Proc. No. SPA 95-233. a few days thereafter,
on May 22, 1995, she submitted to said Commission a "Petition Ad Cautelam" 5 docketed as
EPC No. 95-25 which is an alternative election protest seeking to impugn the election and
proclamation of private respondent Miraflores.
On January 23, 1996, the Comelec First Division issued the first assailed Order
designating Kalibo, Aklan as the venue for the revision of ballots. On February 16, 1996,
petitioner filed a motion for reconsideration alleging that "there is imperative need to
maintain the venue of the revision of ballots in Manila, a neutral place . . . to insulate the
(said) revision . . . from disorderly partisan activities which could delay and/or disrupt the
proceedings." It also "noted that Cabagnot had requested for initial revision of only 3 out of
the 7 municipalities being contested, so as to save time, effort and expenses of all
concerned. And Cabagnot is willing to shoulder the required and necessary expenses (for the
change of venue to Manila), if only to determine the true results of the election".

On

March 28, 1996, the Comelec En Banc 7 voting 4 to

1 denied the motion for reconsideration, ruling
117

that

"(t)he

designation

of

the

venue

for

the

revision of ballots is entirely within the discretion

of the Commission", and that "(i)n the exercise of
such

power,

the

Commission

is

granted

wide

latitude to determine the proper venue, the only

material consideration in such selection being that
the integrity of the proceedings be ensure and
protected."( CABAGNOT vs. COMELEC (G.R. No. 124383 August 9, 1996)
Is the COMELEC correct?

The COMELEC is

incorrect.(G.R. No. 124383,August 9, 1996CORAZON

L. CABAGNOT vs. COMMISSION ON ELECTIONS, ET AL.) Under Comelec's Rules of Procedure,

10 the

venue of the revision process shall be the

office of the Comelec's Clerk of Court at its

Main Office in Manila, thus :Sec. 9. Venue of the revision. The revision of
the ballots shall be made in the office of the clerk of court concerned or at such places as
the Commission or Division shall designate and shall be completed within three (3) months
from the date of the order, unless otherwise directed by the Commission. (Emphasis
supplied.)
16.In an election protest the COMELEC issued an Order which stated that in the performance
of its duty to find the truth and ascertain as to the true winner, it can make a determination
as to wheter ballots had been written by two or more persons, or in groups written by only
one hand, without need of calling handwriting experts or subjecting them to technical
examination.The protestant objected to that order, praying that a handwriting expert must
be commissioned to do the work.
Is the protestant correct? Protestant is

incorrect. In Erni v. COMELEC,

243 SCRA 706 [1995]; Bulaong v. COMELEC, supra; Bocobo v. COMELEC, 191 SCRA 576
[1990]. we held that:

. . . . With respect to the contention that a

the ballots

technical examination of

should have been ordered to determine whether they had been written by

two or more persons, or in groups written by only one hand, we

hold that the

Commission en banc did not commit an abuse of its discretion in

denying petitioner-protestee's request.

The

rule

is

settled

that

the
118

Commission itself can make the determination

without the need of calling handwriting experts.
Nor was evidence aliunde necessary to enable the Commission to determine the
genuineness of the handwriting on the ballots, an

examination of the ballots

themselves being sufficient. Handwriting experts,

probably useful, are

not indispensable in

examining or

while

comparing

handwriting; this can be done by the COMELEC itself. We have ruled that evidence
aliunde is not allowed to prove that a ballot is marked, an
itself

being sufficient

inspection

(Penson v. Parungao, 52 Phil. 718) .

17.In an election for Mayor, Relampagos unwilling to accept defeat, filed a

protest

election

with the Regional Trial Court of Agusan. On June 29, 1994, the trial Court

found him to have

votes

of the ballot

won the election with a margin of six

against Cumba. Judgment was rendered in favor of Relampagos. Copies of the

decision were sent to and received by Relampagos and Cumba on July 1, 1994.On the same
day, Cumba appealed the decision to the COMELEC by filing her notice of appeal and paying
the proper appellate docker fees. On July 8, 1994 the trial court gave due course to the
notice of appeal.On July 12, 1994, Relampagos filed with the trial court a

for execution pending appeal

July 22, 1994.On August 3, 1994, the

motion

which Cumba opposed on

trial court granted the

motion for exection pending appeal.

Question: Is the act of the Judge in granting the motion for execution pending
appeal valid? Explain.
.The act was
and

invalid. That the trial court acted with palpable

whimsical abuse

of

discretion

in granting the petitioner's

motion for execution pending appeal and in issuing the writ of execution is all

too

obvious. Since both the petitioner and the private

respondent received copies of the decision
1994,

on 1 July

an appeal therefrom may be filed

119

within five days 16 from 1 July 1994, or on or before 6 July 1994. Any
motion for execution pending appeal must be filed before the period for the perfection of the
appeal. Pursuant to Section 23 of the Interim Rules Implementing B.P. Blg. 129, which is
deemed to have supplementary effect to the COMELEC Rules of Procedures pursuant to Rule
43 of the latter, an appeal would be deemed perfected on the last day for any of the parties
to appeal, 17 or on 6 July 1994. On 4 July 1994, the private respondent filed her notice of
appeal and paid the appeal fee. On 8 July 1994, the trial court gave due course to the appeal
and ordered the elevation of the records of the case to the COMELEC.

Upon the

perfection of the appeal, the trial court was

divested of its jurisdiction over the case . 18 Since
the

motion for execution pending appeal was filed

only

on 12 July 1994, or

after the perfection of the

appeal, the trial court could no longer validly

act thereon.

It could have been otherwise if the motion was filed before the

perfection of the appeal. 19

COMELEC

has

extraordinary

Accordingly, since the respondent

the

writs

of

jurisdiction
certiorari,

to

issue

the

prohibition,

and

mandamus, then it correctly set aside the challenged

order granting the motion for execution pending appeal
and writ of execution issued by the trial court . (G.R. No. 118861
April 27, 1995EMMANUEL M. RELAMPAGOS vs. ROSITA C. CUMBA, ET AL.)
18. Castromayor was a candidate for a seat in the Sangguniang Bayan (SB) of the
municipality of Calinog.After the votes had been cast, the canvassing began which lasted
until the night of May 9, 1995.On May 10, Castromayor was proclaimed as the eight-place
winner in the SB, on the basis of the results of the canvass.However, when the chairman of
the Municipal Board of Canvassers (MBC) checked the totals in the statement of votes the
following day, it was discovered that Democrito has 62 votes more than that of Castromayor,
because the results in one precinct had been overlooked in the computation of the
totals.The COMELEC after having informed of such defect, directed the chairman of the MBC
to reconvene and annul the proclamation of Castromayor, and finally to proclaim Democrito.
Castromayor complains that the COMELECs order is illegal for the reason that he was
already proclaimed, hence the proper remedy of Democrito was to file an election protest
before the RTC.
Question: Is the contention of Castromayor correct? Explain.
Castromayor is incorrect.( G.R. No. 120426 November 23, 1995NICOLAS C.
120

CASTROMAYOR vs. COMMISSION ON ELECTIONS, ET AL.) What has just been said also
disposes of petitioner's other contention that because his proclamation has already been
made, any remedy of the losing party is an election protest. As held in the Duremdes case:It
is DUREMDES' further submission that this proclamation could not be declared null and void
because a pre-proclamation controversy is not proper after a proclamation has been made,
the proper recourse being an election protest. This is on the assumption, however, that there
has been a valid proclamation. Where a proclamation is null and void, the proclamation is no
proclamation at all and the proclaimed candidate's assumption of office cannot deprive the
COMELEC of the power to declare such nullity and annul the proclamation. (Aguam vs.
COMELEC, L-28955, 28 May 1968, 23 SCRA 883). It should be pointed out, in this connection,
that what is involved here is a simple problem of arithmetic. The Statement of Votes is
merely tabulation per precinct of the votes obtained by the candidates as reflected in the
election returns. In making the correction in computation, the MBC will be acting in an
administrative capacity, under the control and supervision of the COMELEC. Hence any
question pertaining to the proceedings of the MBC may be raised directly to the COMELEC en
banc in the exercise of its constitutional function to decide questions affecting elections.
19.Gatchalian and Aruelo were rival candidates for vice-mayor in the May 11, 1992
elections. On May 13, Gatchalian was declared winner by a margin of 4 votes. Aruelo filed a
petition to annul the proclamation of Gatchalian on May 22, 1992. Pending the resolution of
his petition, Aruelo filed with the RTC an election protest ex abundante cautela, for which he
paid P610 as docket fee (which fell short of P150).
Gatchalian filed a motion to dismiss alleging that the election protest was filed out of time,
and that the RTC had no jurisdiction on the same.
Is Gatchalian correct? Explain
.( G.R. No. 107979 June 19, 1995,DANILO F. GATCHALIAN vs. COURT OF APPEALS,
ET AL.)The election

protest was filed within the ten-

day period, hence

it was

filed on time. However,

the shortage of the docket fee, in effect has not

vested the court with jurisdiction.

Under the above-cited section,

Aruelo had ten days from May 13, 1992 to file an election protest. Instead of filing an
election protest, Aruelo filed with the COMELEC a pre-proclamation case against Gatchalian
on May 22, 1992, or nine days after May 13, 1992.

The filing of the pre-

proclamation case suspended the running of the

period within which to file an election protest or
quo warranto proceedings (B.P. Blg. 881, Sec. 248). Aruelo received the
COMELEC resolution denying his pre-proclamation petition on June 22, 1992. Hence, Aruelo
had only one day left after June 22, 1992 within which to file an election protest. However, it
will be noted that Aruelo filed on June 2, 1992 with the trial court an election protest ex
abundante cautela. It is the

payment of the FILING FEE

121

that VESTS JURISDICTION of the COURT

over the ELECTION PROTEST,

not the payment of the

docket fees for the claim of damages and attorney's fees. For failure to pay the filing fee
prescribed under Section 9, Rule 35 of the COMELEC Rules of Procedure, the election protest
must be dismissed. Under Section 9, Rule 35 of the COMELEC Rules of Procedure,

"[n]o

protest . . . shall be given due course

without the payment of a filing fee in the
amount

of

three

hundred

pesos

(P300.00) for each interest.

20.De Castro was proclaimed mayor after the May 8, 1995 elections, while Medrano was
proclaimed vice-mayor. Within the reglementary period, Jamilla who was De Castros
oponent for Mayor, filed an election protest. On December 15, 1995, during the pendency of
the election protest, protestant Jamilla died. Four days after her death, the RTC issued an
Order dismissing the case on the ground that the election protest is personal and it is
extinguished by the death of the protestant.
On January 9, 1996 Medrano learned of the Order of Dismissal, and six days later,
he filed a Motion for Intervention.
As Judge would you consider the Order of Dismissal and allow the Motion for Intervention
filed by Medrano? Explain.
The election protest must not be dismissed, but the Motion for Intervention must be allowed.
(G.R. No. 125249 February 7, 1997JIMMY S. DE CASTRO vs. COMMISSION ON ELECTIONS, ET
AL. It is true that a public office is personal to the public officer and is not a property
transmissible to his heirs upon death. 9 Thus, applying the doctrine of actio personalis
moritur cum persona, upon the death of the incumbent, no heir of his may be allowed to
continue holding his office in his place.But while the right to a public office is personal and
exclusive to the public officer, an election protest is not purely personal and exclusive to the
protestant or to the protestee such that the death of either would oust the court of all
authority to continue the protest proceedings.An election contest, after all, involves not
merely conflicting private aspirations but is imbued with paramount public interests. As we
have held in the case of Vda. de De Mesa v. Mencias: . . . It is axiomatic that an election
contest, involving as it does not only the adjudication and settlement of the private interests
of the rival candidates but also the paramount need of dispelling once and for all the
uncertainty that beclouds the real choice of the electorate with respect to who shall
discharge the prerogatives of the offices within their gift, is a proceeding imbued with public
interest which raises it onto a plane over and above ordinary civil actions. For this reason,
broad perspectives of public policy impose upon courts the imperative duty to ascertain by
all means within their command who is the real candidate elected in as expeditious a
122

manner as possible, without being fettered by technicalities and procedural barriers to the
end that the will of the people may not be frustrated (Ibasco vs. Ilao, et al., G.R. L-17512,
December 29, 1960; Reforma vs. De Luna, G.R. L-13242, July 31, 1958). So inextricably
intertwined are the interests of the contestants and those of the public that there can be no
gainsaying the logic of the proposition that even the voluntary cessation in office of the
protestee not only does not ipso facto divest him of the character of an adversary in the
contest inasmuch as he retains a party interest to keep his political opponent out of the
office and maintain therein his successor, but also does not in any manner impair or detract
from the jurisdiction of the court to pursue the proceeding to its final conclusion (De Los
Angeles vs. Rodriguez, 46 Phil. 595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves
vs. Maramba, G.R. L-13206).Upon the same principle, the death of the protestee De Mesa
did not abate the proceedings in the election protest filed against him, and it may stated as
a rule that an election contest survives and must be prosecuted to final judgment despite
the death of the protestee. 11The death of the protestant, as in this case, neither constitutes
a ground for the dismissal of the contest nor ousts the trial court of its jurisdiction to decide
the election contest. Apropos is the following pronouncement of this court in the case of
Lomugdang v. Javier: 12Determination of what candidate has been in fact elected is a matter
clothed with public interest, wherefore, public policy demands that an election contest, duly
commenced, be not abated by the death of the contestant. We have squarely so rule in
Sibulo Vda. de Mesa vs. Judge Mencias, G.R. No. L-24583, October 29, 1966, in the same
spirit that led this Court to hold that the ineligibility of the protestant is not a defense
(Caesar vs. Garrido, 53 Phil. 57), and that the protestee's cessation in office is not a ground
for the dismissal of the contest nor detract the Courts jurisdiction to decide the case
(Angeles vs. Rodriguez, 46 Phil. 595; Salcedo vs. Hernandez, 62 Phil. 584). 13The
asseveration of petitioner that private respondent is not a real party in interest entitled to be
substituted in the election protest in place of the late Jamilla, is utterly without legal basis.
Categorical was our ruling in Vda. de Mesa and Lomugdang that:. . . the Vice Mayor elect has
the status of a real party in interest in the continuation of the proceedings and is entitled to
intervene therein. For if the protest succeeds and the Frotestee is unseated, the Vice-Mayor
succeeds to the office of Mayor that becomes vacant if the one duly elected can not assume
the post. 14To finally dispose of this case, we rule that the filing by private respondent of his
Omnibus Petition/Motion on January 15, 1996, well within a period of thirty days from
December 19, 1995 when Jamilla's counsel informed the trial court of Jamilla's death, was in
compliance with Section 17, Rule 3 of the Revised Rules of Court. Since the Rules of Court,
though not generally applicable to election cases, may however be applied by analogy or in
a suppletory character, 15 private respondent was correct to rely thereon.

QUIZZER

QUESTION: Can the Office of the Solicitor General represent a public officer or employee in
the preliminary investigation of a criminal action against him or in a civil action for damages
against him?

Accordingly,

there

is

clear

conflict

of
123

interest here, and one which smacks of

ethical considerations, where the Office of
the Solicitor General, as counsel for the
public official, defends the latter in the
preliminary

investigation

stage

of

the

criminal case, and where the same office, as

appellate

counsel

of

the

People

of

the

Philippines, represents the prosecution when

the

case

is

brought

on

appeal.

This

anomalous situation could not have been

contemplated and allowed by the law, its
unconditional
notwithstanding.

terms
It

is

and
a

provisions

situation

which

cannot be countenanced by the Court.

Otherwise, if the Solicitor General who represents the state on appeal in criminal cases can
appear for the accused public official in a preliminary investigation, then by the same token
a provincial or city fiscal, his assistant or any government prosecutor who represents the
People of the Philippines at the preliminary investigation of a case up to the trial thereof can
appear for an accused public official at the preliminary investigation being conducted by
another fiscal, prosecutor or municipal judge. The situation would simply be scandalous, to
say the least.
There is likewise another reason, as earlier discussed, why the Office of the Solicitor General
cannot represent an accused in a criminal case. Inasmuch as the State can speak and act
only by law, whatever it does say and do must be lawful, and that which is unlawful is not
the word or deed of the State, but is the mere wrong or trespass of those individual persons
who falsely speak and act in its name. 28 Therefore, the accused public official should not
expect the State, through the Office of the Solicitor General, to defend him for a wrongful act
which cannot be attributed to the State itself. In the same light, a public official who is sued
in a criminal case is actually sued in his personal capacity inasmuch as his principal, the
State, can never be the author of a wrongful act, much less commit a crime.
This observation should apply as well to a public official who is haled to court on a civil suit
for damages arising from a felony allegedly committed by him. 30 Any pecuniary liability he
may be held to account for on the occasion of such civil suit is for his own account. The
State is not liable for the same. A fortiori, the Office of the Solicitor General likewise has no
authority to represent him in such a civil suit for damages.
(ILUMINADO URBANO and MARCIAL ACAPULCO, petitioners, vs. FRANCISCO I. CHAVEZ,
124

RAMON BARCELONA and AMY LAZARO-JAVIER, respondents. EN BANC[G.R. No. 87977.

March 19, 1990.])
QUESTION: Applicability of PD 1818, prohibiting courts from issuing TROs to infrastructure
projects of government instrumentalities>
In the case of Datiles and Co. vs. Sucaldito, 9 this Court interpreted a similar prohibition
contained in P.D. 605, the law after which P.D. 1818 was patterned. It was there declared
that the prohibition pertained to the issuance of injunctions or restraining orders by courts
against administrative acts in controversies involving facts or the exercise of discretion in
technical cases. The Court observed that to allow the courts to judge these matters would
disturb the smooth functioning of the administrative machinery. Justice Teodoro Padilla made
it clear, however, that on issues definitely outside of this dimension and involving questions
of law, courts could not be prevented by P.D. No. 605 from exercising their power to restrain
or prohibit administrative acts.
P.D. 1818 was not intended to shield from judicial scrutiny irregularities committed by
administrative agencies such as the anomalies above described. Hence, the challenged
restraining order was not improperly issued by the respondent judge and the writ of
preliminary injunction should not have been denied. We note from Annex Q of the private
respondent's memorandum, however, that the subject project has already been "100%
completed as to the Engineering Standard." This fait accompli has made the petition for a
writ of preliminary injunction moot and academic.(MALAGA V. PENACHOS,September 3,
1992)

125