JOSE EMMANUEL L. CARLOS, petitioner, vs. HON. ADORACION G.

ANGELES, [G.R. No. 142907. November 29, 2000]

The case before the Court is an original special civil action for certiorari and
prohibition with preliminary injunction or temporary restraining order seeking to annul
the decision of the Regional Trial Court, Caloocan City, Branch 125, the dispositive
portion of which reads as follows:

WHEREFORE, premises considered, the proclamation of the Protestee, Jose

Emmanuel Carlos, by the Board of Canvassers is accordingly SET ASIDE.

The Court hereby FINDS the Protestant, ANTONIO SERAPIO, as the DULY
ELECTED MAYOR OF VALENZUELA CITY.

SO ORDERED. [1]

The Facts

Petitioner Jose Emmanuel L. Carlos and respondent Antonio M. Serapio were

candidates for the position of mayor of the municipality of Valenzuela, Metro Manila
(later converted into a City) during the May 11, 1998 elections.
On May 21, 1998, the Municipal Board of Canvassers, Valenzuela, Metro Manila
proclaimed petitioner as the duly elected mayor of Valenzuela having obtained 102,688
votes, the highest number of votes in the election returns.
On June 1, 1998, respondent Antonio M. Serapio who obtained 77,270 votes, the
second highest number of votes, filed with the Regional Trial Court, Valenzuela, Metro
Manila, an election protest challenging the results. Due to the inhibition of all judges of
the Regional Trial Court in Valenzuela, the case was ultimately assigned to the Regional
Trial Court, Caloocan City, Branch 125, presided over by respondent Judge Adoracion
G. Angeles.
On June 26, 1998, petitioner filed with the trial court an answer with affirmative
defenses and motion to dismiss. The court denied the motion to dismiss by order dated
January 14, 1999. Petitioner elevated the order to the Commission on Elections
(Comelec) on petition for certiorari and prohibition, which, however, has remained
[2]

unresolved up to this moment.

In the course of the protest, the municipal treasurer of Valenzuela, who by law has
custody of the ballot boxes, collected the ballot boxes and delivered them to the
Regional Trial Court, Caloocan City. The trial court conducted a pre-trial conference of
the parties but it did not produce a substantial result as the parties merely paid
superficial service and only agreed on the following:
1. Both parties admit their capacity to sue and be sued;
2. Both parties admit that the protestant was a candidate during the May 11, 1998
election;
3. Both parties admit that the protestee has been proclaimed as the elected mayor of
Valenzuela, Metro Manila, on May 21, 1998;
4. Both parties admit that the protestee allegedly obtained 102,688 votes while the
protestant obtained 77,270 votes per canvass of election returns of the Board of
Canvassers.
The pre-trial was then concluded and the parties agreed to the creation of seven (7)
revision committees consisting of a chairman designated by the court and two members
representing the protestant and the protestee.
Meantime, on May 12, 1999, petitioner filed a consolidated motion that included a
prayer for authority to photocopy all the official copies of the revision reports in the
custody of the trial court. However, the trial court denied the issuance of such
authorization. The court likewise denied a motion for reconsideration of the denial.
[3]

Then petitioner raised the denial to the COMELEC on petition for certiorari and
[4]

mandamus, which also remains unresolved until this date.

[5]

The Revision Results

The revision of the ballots showed the following results:

(1) Per physical count of the ballots:

(a) protestant Serapio - 76,246 votes.

(b) protestee Carlos - 103,551 votes.

(2) Per revision, the court invalidated 9,697 votes of the protestant but
validated 53 stray votes in his favor.

The court invalidated 19,975 votes of the protestee and validated 33 stray
votes in his favor.

The final tally showed:

(a) protestant Serapio - 66,602 votes.

(b) protestee Carlos - 83,609 votes, giving the latter a winning margin
of 17,007 votes.
 The Trial Courts Ruling

Nevertheless, in its decision, the trial court set aside the final tally of valid votes
because of its finding of significant badges of fraud, namely:
1. The keys turned over by the City Treasurer to the court did not fit into the padlocks of
the ballot boxes that had to be forcibly opened;
2. Seven (7) ballot boxes did not contain any ballot and two (2) ballot boxes out of the
seven (7) ballot boxes did not contain any election returns;
3. Some schools where various precincts were located experienced brownouts during
the counting of votes causing delay in the counting although there was no undue
commotion or violence that occurred;
4. Some of the assigned watchers of protestant were not in their posts during the
counting of votes.
On the basis of the foregoing badges of fraud, the trial court declared that there was
enough pattern of fraud in the conduct of the election for mayor in Valenzuela. The court
held that the fraud was attributable to the protestee who had control over the election
paraphernalia and the basic services in the community such as the supply of electricity.
On April 24, 2000, the trial court rendered a judgment ruling that the perpetuation of
fraud had undoubtedly suppressed the true will of the electorate of Valenzuela and
substituted it with the will of the protestee. Notwithstanding the plurality of valid votes in
favor of the protestee, the trial court set aside the proclamation of protestee Jose
Emmanuel Carlos by the Municipal Board of Canvassers and declared protestant
Antonio M. Serapio as the duly elected mayor of Valenzuela City. [6]

Hearing news that the protestant had won the election protest, the protestee
secured a copy of the decision from the trial court on May 4, 2000. On the other hand,
notice of the decision was received by the protestant on May 03, 2000.
On May 4, 2000, protestant filed with the trial court a motion for execution pending
appeal. On May 4, 2000, the trial court gave protestee five (5) days within which to
[7]

submit his comment or opposition to the motion. [8]

Petitioners Appeal to Comelec

Meantime, on May 04, 2000, petitioner filed a notice of appeal from the decision of
the trial court to the Commission on Elections. [9]

The Petition at bar

On May 8, 2000, petitioner filed the present recourse. [10]

Petitioner raised the following legal basis:

 (1) The Supreme Court has original jurisdiction to entertain special civil actions of
certiorari and prohibition;
(2) There are important reasons and compelling circumstances which justify petitioners
direct recourse to the Supreme Court;
(3) Respondent judge committed grave abuse of discretion when she declared
respondent Serapio as the duly elected mayor of Valenzuela despite the fact that
she found that petitioner obtained 17,007 valid votes higher than the valid votes of
respondent Serapio;
(4) The assailed decision is contrary to law, based on speculations and not supported
by the evidence as shown in the decision itself.[11]

The Issues

The issues raised are the following:

1. Whether the Supreme Court has jurisdiction to review, by petition for certiorari as a
special civil action, the decision of the regional trial court in an election protest case
involving an elective municipal official considering that it has no appellate jurisdiction
over such decision.
2. Whether the trial court acted without jurisdiction or with grave abuse of discretion
when the court set aside the proclamation of petitioner and declared respondent
Serapio as the duly elected mayor of Valenzuela City despite its finding that
petitioner garnered 83,609 valid votes while respondent obtained 66,602 valid votes,
or a winning margin of 17,007 votes.

TRO Issued

On May 8, 2000, we issued a temporary restraining order ordering respondent court

to cease and desist from further taking cognizance of Election Protest No. 14-V-98 more
specifically from taking cognizance of and acting on the Motion for Execution Pending
Appeal filed by respondent Serapio on May 4, 2000. [12]

Respondents Position

On May 15, 2000, respondent Serapio filed his comment with omnibus motion to lift
the temporary restraining order and to declare petitioner in contempt of court for
violating the rule against forum shopping. He submitted that Comelec and not the
[13]

Supreme Court has jurisdiction over the present petition for certiorari assailing the
decision dated April 24, 2000 of the regional trial court. Assuming that this Court and
Comelec have concurrent jurisdiction and applying the doctrine of primary jurisdiction,
the Comelec has jurisdiction since petitioner has perfected his appeal therewith before
the filing of the instant petition. Certiorari cannot be a substitute for an appeal; the
present petition is violative of Revised Circular No. 28-91 on forum-shopping; issues
raised are factual, not correctible by certiorari; and that the temporary restraining order
should be lifted, the petition dismissed, and petitioner and counsel should be made to
explain why they should not be punished for contempt of court.

The Courts Ruling

We find the petition impressed with merit. [14]

I. The Supreme Court is vested with original jurisdiction to issue writs of certiorari,
prohibition and mandamus against the decision of the regional trial court in the
election protest case before it, regardless of whether it has appellate jurisdiction
over such decision.
Article VIII, Section 5 (1) of the 1987 Constitution provides that:

Sec. 5. The Supreme Court shall have the following powers:

(1) Exercise original jurisdiction over cases affecting ambassadors, other

public ministers and consuls, and over petitions
for certiorari, prohibition, mandamus, quo warranto, and habeas corpus.

xxx
Rule 65, Section 1 of the 1997 Rules of Civil Procedure, as amended, provides that:

SECTION 1. Petition for certiorari.When any tribunal, board or officer

exercising judicial or quasi-judicial functions has acted without or in excess of
its or his jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction, and there is no appeal, or any plain, speedy, and
adequate remedy in the course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with certainty and
praying that judgment be rendered annulling or modifying the proceedings of
such tribunal, board or officer, and granting such incidental reliefs as law and
justice may require.

The petition shall be accompanied by a certified true copy of the judgment,

order or resolution subject thereof, copies of all pleadings and documents
relevant and pertinent thereto, and a sworn certification of non-forum
shopping as provided in the third paragraph of section 3, Rule 46.

By Constitutional fiat, the Commission on Election (Comelec) has appellate

jurisdiction over election protest cases involving elective municipal officials decided by
courts of general jurisdiction, as provided for in Article IX (C), Section 2 of the 1987
Constitution:

Sec. 2. The Commission on Elections shall exercise the following powers and
functions:

(1) x x x.

(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns and qualifications of all elective regional, provincial, and city
officials, and appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.

In like manner, the Comelec has original jurisdiction to issue writs of certiorari,
prohibition and mandamus involving election cases in aid of its appellate jurisdiction.
This point has been settled in the case of Relampagos vs. Cumba, where we held:
[15] [16]

In the face of the foregoing disquisitions, the court must, as it now does,
abandon the ruling in the Garcia and Uy and Veloria cases. We now hold that
the last paragraph ofSection 50 of B. P. Blg. 697 providing as follows:

The Commission is vested with exclusive authority to hear and decide

petitions for certiorari, prohibition and mandamus involving election cases.

remains in full force and effect but only in such cases where, under paragraph
(2), Section 1, Article IX-C of the Constitution, it has exclusive appellate
jurisdiction. Simply put, the COMELEC has the authority to issue the
extraordinary writs of certiorari, prohibition, and mandamus only in aid
of its appellate jurisdiction. (Emphasis ours).

Consequently, both the Supreme Court and Comelec have concurrent jurisdiction to
issue writs of certiorari, prohibition, and mandamus over decisions of trial courts of
general jurisdiction (regional trial courts) in election cases involving elective municipal
officials. The Court that takes jurisdiction first shall exercise exclusive jurisdiction over
the case.[17]

Ergo, this Court has jurisdiction over the present petition of certiorari as a special
civil action expressly conferred on it and provided for in the Constitution.
Relative to the appeal that petitioner filed with the COMELEC, the same would not
bar the present action as an exception to the rule because under the circumstances,
appeal would not be a speedy and adequate remedy in the ordinary course of law.
The exception is sparingly allowed in situations where the abuse of discretion is
[18]
not only grave and whimsical but also palpable and patent, and the invalidity of the
assailed act is shown on its face.
II. Certiorari lies. The trial court acted with grave abuse of discretion amounting to lack
or excess of jurisdiction. Its decision is void.
The next question that arises is whether certiorari lies because the trial court
committed a grave abuse of discretion amounting to lack or excess of jurisdiction in
deciding the way it did Election Protest Case No. 14-V-98, declaring respondent Serapio
as the duly elected mayor of Valenzuela, Metro Manila.
In this jurisdiction, an election means the choice or selection of candidates to public
office by popular vote through the use of the ballot, and the elected officials of which
[19]

are determined through the will of the electorate. An election is the embodiment of the
[20]

popular will, the expression of the sovereign power of the people. Specifically, the term
[21]

election, in the context of the Constitution, may refer to the conduct of the polls,
including the listing of voters, the holding of the electoral campaign, and the casting and
counting of votes. The winner is the candidate who has obtained a majority or plurality
[22]

of valid votes cast in the election. Sound policy dictates that public elective offices are
[23]

filled by those who receive the highest number of votes cast in the election for that
office. For, in all republican forms of government the basic idea is that no one can be
declared elected and no measure can be declared carried unless he or it receives a
majority or plurality of the legal votes cast in the election. In case of protest, a revision
[24]

or recount of the ballots cast for the candidates decides the election protest case. The
candidate receiving the highest number or plurality of votes shall be proclaimed the
winner. Even if the candidate receiving the majority votes is ineligible or disqualified, the
candidate receiving the next highest number of votes or the second placer, can not be
declared elected. The wreath of victory cannot be transferred from the disqualified
[25]

winner to the repudiated loser because the law then as now only authorizes a
declaration of election in favor of the person who has obtained a plurality of votes and
does not entitle a candidate receiving the next highest number of votes to be declared
elected. In other words, a defeated candidate cannot be deemed elected to the office.
[26]

[27]

Election contests involve public interest, and technicalities and procedural barriers
should not be allowed to stand if they constitute an obstacle to the determination of the
true will of the electorate in the choice of their elective officials. Laws governing election
contests must be liberally construed to the end that the will of the people in the choice of
public officials may not be defeated by mere technical objections. In an election case,
the court has an imperative duty to ascertain by all means within its command who is
the real candidate elected by the electorate. The Supreme Court frowns upon any
interpretation of the law or the rules that would hinder in any way not only the free and
intelligent casting of the votes in an election but also the correct ascertainment of the
results. [28]

In this case, based on the revision of ballots, the trial court found that:

First, by canvass of the Municipal Board of Canvassers the results were:

Carlos - 102,668 votes

Serapio - 77,270 votes, or a winning margin of 25,418 votes

Ramon Ignacio - 20 votes.

and consequently, the Board of Canvassers proclaimed petitioner Carlos the duly
elected mayor of Valenzuela, Metro Manila.
Second, by physical count of the ballots, the results were:

Carlos - 103,551 votes

Serapio - 76,246 votes, or a winning margin of 27,305 votes.

Third, by revision of the ballots, the trial court found in a final tally that the valid
votes obtained by the candidates were as follows:

Carlos - 83,609 votes

Serapio - 66,602 votes, or a winning margin of 17,007 votes.

Consequently, the final tally clearly showed petitioner Carlos as the overwhelming
winner in the May 11, 1998 elections.
However, the trial court set aside the final tally of votes because of what the trial
court perceived to be significant badges of fraud attributable to the protestee. These
[29]

are:
First: The failure of the keys turned over by the City Treasurer to the trial court to fit
the padlocks on the ballot boxes that compelled the court to forcibly open the
padlocks.The trial court concluded that the real keys were lost or the padlocks
substituted pointing to possible tampering of the contents of the ballot boxes.
Procedurally, the keys to the ballot boxes were turned over by the Board of Election
Inspectors from the precinct level to the Municipal Board of Canvassers and finally to
the municipal treasurer for safekeeping. The three-level turn-over of the keys will not
prevent the possibility of these keys being mixed up. This is an ordinary occurrence
during elections. The mere inability of the keys to fit into the padlocks attached to the
ballot boxes does not affect the integrity of the ballots. At any rate, the trial court easily
forced open the padlocks and found valid votes cast therein;
Second: Seven (7) ballot boxes were found empty. Thus, the trial court concluded
that there were missing ballots and missing election returns. This is pure speculation
without factual basis. The sea of suspicion has no shore, and the court that embarks
upon it is without rudder or compass. On the other hand, the Summary of Votes as
[30]

revised does not show any unaccounted precinct or whether there was any precinct
without any ballot or election returns. It is a standard procedure of the Commission on
Elections (Comelec) to provide extra empty ballot boxes for the use of the Board of
Election Inspectors or the Board of Canvassers, in case of necessity.
The empty ballot boxes found could be the empty reserve ballot boxes that were not
used by the Board of Election Inspectors or the Board of Canvassers since there was
neither proof nor even a claim of missing ballots or missing election returns.
Third: Some schoolhouses experienced brownout during the counting of votes.
There was nothing extraordinary that would invite serious doubts or suspicion that fraud
was committed during the brownout that occurred. Indeed, one witness stated that it
was the first time that he observed brownout in Dalandanan Elementary School and
another stated that the brownout was localized in Coloong Elementary School. Since
counting of votes lasted until midnight, the brownouts had caused only slight delay in
the canvassing of votes because the election officials availed themselves of candles,
flashlights and emergency lights. There were no reports of cheating or tampering of the
election returns. In fact, witnesses testified that the counting of votes proceeded
smoothly and no commotion or violence occurred. So, the brownouts had no effect on
the integrity of the canvass.
Fourth: The absence of watchers for candidate Serapio from their posts during the
counting of votes. This cannot be taken against candidate Carlos since it is the
candidates own look-out to protect his interest during the counting of votes and
canvassing of election returns. As long as notices were duly served to the parties, the
counting and canvassing of votes may validly proceed in the absence of
watchers. Otherwise, candidates may easily delay the counting of votes or canvassing
of returns by simply not sending their watchers. There was no incomplete canvass of
returns, contrary to what the trial court declared. The evidence showed complete
canvass in Valenzuela, Metro Manila. [31]

We cannot allow an election protest on such flimsy averments to prosper,

otherwise, the whole election process will deteriorate into an endless stream of crabs
pulling at each other, racing to disembank from the water. [32]

Assuming for the nonce that the trial court was correct in holding that the final tally
of valid votes as per revision report may be set aside because of the significant badges
of fraud, the same would be tantamount to a ruling that there were no valid votes cast at
all for the candidates, and, thus, no winner could be declared in the election protest
case. In short, there was failure of election.
In such case, the proper remedy is an action before the Commission on
Elections en banc to declare a failure of election or to annul the election. However, the
[33]

case below was an election protest case involving an elective municipal position which,
under Section 251 of the Election Code, falls within the exclusive original jurisdiction of
the appropriate regional trial court.
[34]

Nonetheless, the annulment of an election on the ground of fraud, irregularities and

violations of election laws may be raised as an incident to an election contest. Such
grounds for annulment of an election may be invoked in an election protest case.
However, an election must not be nullified and the voters disenfranchised whenever it is
possible to determine a winner on the basis of valid votes cast, and discard the illegally
cast ballots. In this case, the petitioner admittedly received 17,007 valid votes more than
the protestee, and therefore the nullification of the election would not lie. The power to
nullify an election must be exercised with the greatest care with a view not to
disenfranchise the voters, and only under circumstances that clearly call for such drastic
remedial measure. [35]

As heretofore stated, in this jurisdiction, elections are won on the basis of a majority
or plurality of votes cast and received by the candidates. The right to hold an elective
office is rooted on electoral mandate, not perceived entitlement to the office. [36]

More importantly, the trial court has no jurisdiction to declare a failure of election. [37]

Section 6 of the Omnibus Election Code provides that:

Sec. 6. Failure of Election.If, on account of force majeure, violence, terrorism,

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

Likewise, RA 7166 provides that:

Sec. 4. Postponement, Failure of Election and Special Elections.-- The

postponement, declaration of failure of election and the calling of special
elections as provided in Sections 5, 6 and 7 of the Omnibus Election Code
shall be decided by the Commission sitting en banc by a majority vote of
its members. The causes for the declaration of a failure of election may occur
before or after the casting of votes or on the day of the election. (Emphasis
supplied)

It is the Commission (Comelec) sitting en banc that is vested with exclusive

jurisdiction to declare a failure of election.
[38]

In a petition to annul an election under Section 6, Batas Pambansa Blg. 881, two
conditions must be averred in order to support a sufficient cause of action. These are:
(1) the illegality must affect more than 50% of the votes cast and (2) the good votes
can be distinguished from the bad ones. It is only when these two conditions are
established that the annulment of the election can be justified because the remaining
votes do not constitute a valid constituency. [39]

We have held that: To declare a failure of election, two (2) conditions must occur:
first, no voting has taken place in the precincts concerned on the date fixed by law or,
even if there were voting, the election nevertheless resulted in a failure to elect; and,
second, the votes not cast would affect the result of the election. Neither of these
[40]

conditions was present in the case at bar.

More recently, we clarified that, Under the pertinent codal provision of the Omnibus
Election Code, there are only three (3) instances where a failure of elections may be
declared, namely: (a) the election in any polling place has not been held on the date
fixed on account of force majeure, violence, terrorism, fraud, or other analogous causes;
(b) the election in any polling place had been suspended before the hour fixed by law
for the closing of the voting on account of force majeure, violence, terrorism, fraud, or
other analogous causes; or (c) after the voting and during the preparation and
transmission of the election returns or in the custody or canvass thereof, such
election results in a failure to elect on account of force majeure, violence, terrorism,
fraud, or other analogous causes. [41]

Thus, the trial court in its decision actually pronounced a failure of election by
disregarding and setting aside the results of the election. Nonetheless, as herein-above
stated, the trial court erred to the extent of ousting itself of jurisdiction because the
grounds for failure of election were not significant and even non-existent. More
importantly, the commission of fraud can not be attributed to the protestee. There was
no evidence on record that protestee had a hand in any of the irregularities that
protestant averred. It is wrong for the trial court to state that the protestee had control
over the election paraphernalia or over electric services. The Commission on Elections
has control over election paraphernalia, through its officials and deputies. The [42]

Comelec can deputize with the concurrence of the President, law enforcement agencies
and instrumentalities of the government, including the Armed Forces of the Philippines,
for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible
elections. On the other hand, electric utility services in Metro Manila, including
[43]

Valenzuela are under the control of its franchise holder, particularly the Manila Electric
Company, a public service company, certainly not owned or controlled by the
protestee. In fact, during election period, Comelec has control over such utilities as
electric and even telephone service. What is important, however, is that the voters of
[44]

Valenzuela were able to cast their votes freely and fairly. And in the election protest
case, the trial court was able to recount and determine the valid votes cast.
Assuming that the trial court has jurisdiction to declare a failure of election, the
extent of that power is limited to the annulment of the election and the calling of special
elections. The result is a failure of election for that particular office. In such case, the
[45]

court can not declare a winner. A permanent vacancy is thus created. In such
[46]

eventuality, the duly elected vice-mayor shall succeed as provided by law. [47]

We find that the trial court committed a grave abuse of discretion amounting to lack
or excess of jurisdiction in rendering its decision proclaiming respondent Serapio the
duly elected mayor of Valenzuela, Metro Manila, on the basis of its perception of the
voice of the people of Valenzuela, even without a majority or plurality votes cast in his
favor.In fact, without a single vote in his favor as the trial court discarded all the
votes. Thus, the decision is not supported by the highest number of valid votes cast in
his favor. This violated the right to due process of law of petitioner who was not heard
on the issue of failure of election, an issue that was not raised by the protestant. A
decision is void for lack of due process if, as a result, a party is deprived of the
opportunity of being heard. The trial court can not decide the election protest case
[48]

outside the issues raised. If it does, as in this case, the trial court is ousted of its
jurisdiction. Likewise, it is a basic principle that a decision with absolutely nothing to
support it is void. A void decision may be assailed or impugned at any time either
[49]

directly or collaterally, by means of a petition filed in the same case or by means of a

separate action, or by resisting such decision in any action or proceeding where it is
invoked. Here, the trial court indulged in speculations on its view of the voice of the
[50]

people, and decided the case disregarding the evidence, but on its own intuition, ipse
dixit. How was this voice communicated to the trial court? Certainly not by competent
[51]

evidence adduced before the court as it should be, but by extra-sensory

perception. This is invalid in law. Contrary to its own finding that petitioner obtained
83,600 valid votes against 66,602 valid votes for the respondent as second placer, or a
plurality of 17,007 votes, the trial court declared the second placer as the winner. This is
a blatant abuse of judicial discretion by any account. It is a raw exercise of judicial
function in an arbitrary or despotic manner, amounting to evasion of the positive duty to
act in accord with law. [52]

In a special civil action for certiorari, the burden is on petitioner to prove not merely
reversible error, but grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of the public respondent Judge. By grave abuse of discretion is meant
capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction.
Mere abuse of discretion is not enough. It must be grave abuse of discretion as when
the power is exercised in an arbitrary or despotic manner by reason of passion or
personal hostility, and must be so patent and so gross as to amount to an evasion of a
positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law. We must emphasize that election to office is determined by the
[53]

highest number of votes obtained by a candidate in the election.

The Judgment

WHEREFORE, the Court GRANTS the petition. The Court ANNULS and
DECLARES VOID the decision dated April 24, 2000 of the trial court in Election Protest
Case No. V-14-98.
The temporary restraining order we issued on May 8, 2000, is made permanent.
Let Election Protest Case No. V-14-98 be remanded to the trial court for decision
within a non-extendible period of fifteen (15) days from notice of this decision. The judge
shall report to this Court on the decision rendered within five (5) days from rendition
submitting a copy thereof to the Office of the Clerk of Court en banc.
 This decision is immediately executory.
No costs.
SO ORDERED.
Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Quisumbing, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.
Melo, J., in the result.

ROQUE FLORES, petitioner,vs. COMMISSION ON ELECTIONS , NOBELITO

RAPISORA, respondents. G.R. No. 89604 April 20, 1990

Felix B. Claustro for petitioner.

Romeo B. Astudillo for private respondent.

CRUZ, J.:

Petitioner Roque Flores was proclaimed by the board of canvassers as having

received the highest number of votes for kagawad in the elections held on 28
March 1989, in Barangay Poblacion, Tayum, Abra, and thus became punong
barangay in accordance with Section 5 of Rep. Act No. 6679, providing in part as
follows

Sec. 5. There shall be a sangguniang barangay in every duly constituted

barangay which shall be the legislative body and shall be composed of
seven (7) kagawads to be elected by the registered voters of the barangay.
The candidate who obtains the highest number of votes shall be
the punong barangay . . . .

However, his election was protested by Nobelito Rapisora, herein private

respondent, who placed second in the election with 463 votes, or one vote less
than the petitioner. The Municipal Circuit Trial Court of Tayum, Abra, sustained
Rapisora and installed him as punong barangay in place of the petitioner after
deducting two votes as stray from the latter's total. 1

Flores appealed to the Regional Trial Court of Abra, which affirmed the
challenged decision in toto. Judge Francisco O. Villarta, Jr. agreed that the four
votes cast for "Flores" only, without any distinguishing first name or initial, should
all have been considered invalid instead of being divided equally between the
petitioner and Anastacio Flores, another candidate for kagawad. The judge held
that the original total credited to the petitioner was correctly reduced by 2, to 462,
demoting him to second place. 2

The petitioner then went to the Commission on Elections, but his appeal was
dismissed on the ground that the public respondent had no power to review the
decision of the regional trial court. This ruling, embodied in its resolution dated 3
August 1989, was presumably based on Section 9 of Rep. Act No. 6679, which
3

was quoted therein in full as follows:

Sec. 9. A sworn petition contesting the election of a barangay official may

be filed with the proper municipal or metropolitan trial court by any
candidate who has duly filed a certificate of candidacy and has been voted
for a barangay office within ten (10) days after the proclamation of the
result of the election. The trial court shall decide the election protest within
(30) days after the filing thereof. The decision of the municipal or
metropolitan trial court may be appealed within ten (10) days from receipt
of a copy thereof by the aggrieved party to the regional trial court which
shall decide the issue within thirty (30) days from receipt of the appeal and
whose decision on questions of fact shall be final and non-appealable. For
purposes of the barangay elections, no pre-proclamation cases shall be
allowed.

In this petition for certiorari, the Commission on Elections is faulted for not taking
cognizance of the petitioner's appeal and for not ruling that all the four
questioned votes should have been credited to him under the equity of the
incumbent rule in Section 211(2) of the Omnibus Election Code.

The Commission on Elections was obviously of the opinion that it could not
entertain the petitioner's appeal because of the provision in Rep. Act No. 6679
that the decision of the regional trial court in a protest appealed to it from the
municipal trial court in barangay elections "on questions of fact shall be final and
non-appealable."

While supporting the dismissal of the appeal, the Solicitor General justifies this
action on an entirely different and more significant ground, to wit, Article IX-C,
Section 2(2) of the Constitution, providing that the Commission on Elections
shall:

(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. (Emphasis supplied.)

Decisions, final orders, or rulings of the Commission on election contests

involving elective municipal and barangay offices shall be final, executory,
and not appealable.

His submission is that municipal or metropolitan courts being courts of limited

jurisdiction, their decisions in barangay election contests are subject to the
exclusive appellate jurisdiction of the Commission on Elections under the afore-
quoted section. Hence, the decision rendered by the Municipal Circuit Trial Court
of Tayum, Abra, should have been appealed directly to the Commission on
Elections and not to the Regional Trial Court of Abra.

It is recalled that in the case of Luison v. Garcia, respondent Garcia's certificate

4

of candidacy was declared invalid by the Commission on Elections for non-

compliance with the statutory requirements. What he did was appeal to the court
of first instance, which held that the certificate was merely defective but not
altogether null and void. Garcia continued his candidacy on the strength of this
ruling and was subsequently proclaimed elected, thereafter assuming office as
municipal mayor.

In sustaining the quo warranto petition filed against him by Luison, this Court
declared that all the votes cast for Garcia should have been rejected as stray
because he did not have a valid certificate of candidacy. The action of the
Commission on Elections should have been appealed not to the court of first
instance but to the Supreme Court as required by the 1935 Constitution. Since
this was not done, the resolution of the Commission on Elections rejecting
Garcia's certificate remained valid on the date of the election and rendered all
votes cast for him as stray.

The doctrine in that case, although laid down under the 1935 Constitution, is still
controlling under the present charter as the interpretation by this Court of Article
IX-C, Section 2(2). Accordingly, Section 9 of Rep. Act No. 6679, insofar as it
provides that the decision of the municipal or metropolitan court in a barangay
election case should be appealed to the regional trial court, must be declared
unconstitutional.

We make this declaration even if the law has not been squarely and properly
challenged by the petitioner. Ordinarily, the Court requires compliance with the
1wphi1

requisites of a judicial inquiry into a constitutional question. In the case at bar,

5

however, we feel there is no point in waiting to resolve the issue now already
before us until it is raised anew, probably only in the next barangay elections.
The time to resolve it is now, before such elections. We shall therefore disregard
the technical obstacles in the case at bar so that the flaw in Rep. Act No. 6679
may be brought to the attention of Congress and the constitutional defect in
Section 9 may be corrected.

In taking this step, the Court does not disregard the fact that the petitioner was
only acting in accordance with the said law when he appealed the decision of the
Municipal Circuit Trial Court of Tayum to the Regional Trial Court of Abra. That is
what the statute specifically directed in its Section 9 which, at the time the appeal
was made, was considered constitutional. The petitioner had a light to rely on its
presumed validity as everyone apparently did. Even the Congress and the
Executive were satisfied that the measure was constitutional when they
separately approved it after careful study. Indeed, no challenge to its validity had
been lodged or even hinted not even by the public respondent as to
suggest to the petitioner that he was following the wrong procedure. In fairness to
him therefore, we shall consider his appeal to the Commission on Elections as
having been made directly from the Municipal Circuit Trial Court of Tayum, Abra,
disregarding the detour to the Regional Trial Court.

Accordingly, we hold that the petitioner's appeal was validly made to the
Commission on Elections under its "exclusive appellate jurisdiction over all
contests. . . involving elective barangay officials decided by trial courts of limited
jurisdiction." Its decision was in turn also properly elevated to us pursuant to
Article IX-A, Section 7, of the Constitution, stating that "unless otherwise provided
by this Constitution or by law, any decision, order or ruling of each Commission
may be brought to the Supreme Court on certiorari by the aggrieved party within
thirty days from receipt of a copy thereof."

Obviously, the provision of Article IX-C, Section 2(2) of the Constitution that
"decisions, final orders, or rulings of the Commission on election contests
involving elective municipal and barangay offices shall be final, executory, and
not appealable" applies only to questions of fact and not of law. That provision
was not intended to divest the Supreme Court of its authority to resolve questions
of law as inherent in the judicial power conferred upon it by the Constitution. We
6

eschew a literal reading of that provision that would contradict such authority.

The issue the petitioner was raising was one of law, viz., whether he was entitled
to the benefits of the equity-of-the-incumbent rule, and so subject to our review.
This issue was not resolved by the public respondent because it apparently
believed itself to be without appellate jurisdiction over the decision of the
Regional Trial Court of Abra. Considering that the public respondent has already
manifested its position on this issue, as will appear presently, the Court will now
rule upon it directly instead of adopting the round-about way of remanding the
case to the Commission on Elections before its decision is elevated to this Court.

Implementing Rep. Act No. 6679, the Commission on Elections promulgated

Resolution No. 2022-A providing in Section 16(3) thereof that:

Incumbent Barangay Captains, whether elected, appointed or designated

shall be deemed resigned as such upon the filing of their certificates of
candidacy for the office of "Kagawad," which is another office, for the
March 28, 1989 barangay election.

This was the reason why the Municipal Circuit Trial Court of Tayum, Abra, held
that the four questioned votes cast for Flores could not be credited to either
Roque Flores or Anastacio Flores and should have been regarded as stray under
Section 211(1) of the Omnibus Election Code. Rejecting the petitioner's claim,
7

the court held that Roque Flores was not entitled to any of the four contested
votes because he was not incumbent as punong barangay (or barangay captain,
as the office was formerly called) on the date of the election.

The petitioner insists on the application to him of Section 211(2) of the Code,
stating pertinently that:

2. . . . If there are two or more candidates with the same full name, first
name or surname and one of them is the incumbent, and on the ballot is
written only such full name, first name or surname, the vote shall be
counted in favor of the incumbent.

because he should not have been considered resigned but continued to be

entitled to the office of punong barangay under Section 8 of Rep. Act No. 6679,
providing as follows:

Sec. 8. Incumbent elective officials running for the same office shall not be
considered resigned upon the filing of then, certificates of candidacy. They
shall continue to hold office until their successors shall have been elected
and qualified.

The petitioner contends that the afore-quoted administrative regulation is

inofficious because the forfeiture prescribed is not authorized by the statute itself
and beyond the intentions of the legislature. Moreover, the enforcement of the
rule would lead to discrimination against the punong barangay and in favor of the
other kagawads, who, unlike him, could remain in office while running for re-
election and, additionally, benefit from the equity-of-the-incumbent rule.
Alternatively, the petitioner argues that, assuming the regulation to be valid he
was nonetheless basically also a kagawad as he was a member of
the sangguniang barangay like the other six councilmen elected with him in 1982.
In fact, Section 5 of the Rep. Act No. 6679 also speaks of seven kagawads, the
foremost of whom shall again be the punong barangay. He concludes that he
should thus be regarded as running for the same office and therefore not
considered resigned when he filed his certificate of candidacy for kagawad.

The Court does not agree.

It seems to us that the challenged resolution quite clearly expresses the mandate
of the above-quoted Section 8 that all incumbent elected officials should not be
considered resigned upon the filing of their certificates of candidacy as long as
they were running for the same position. The purpose of the resolution was
merely to implement this intention, which was clearly applicable not only to the
ordinary members of the sangguniang barangay but also to the punong
barangay.

As for the questioned authority, this is found in Section 52 of the Omnibus

Election Code, which empowers the public respondent to "promulgate rules and
regulations implementing the provisions of this Code or other laws which the
Commission is required to enforce and administer. . . ."

The justification given by the resolution is that the position of punong barangay is
different from that of kagawad as in fact it is. There should be no question that
the punong barangay is an essentially executive officer, as the enumeration of
his functions in Section 88 of the Local Government Code will readily show,
unlike the kagawad, who is vested with mainly legislative functions (although he
does assist the punong barangay in the administration of the barangay). Under
Rep. Act No. 6679, the person who wins the highest number of votes as
a kagawad becomes by operation of law the punong barangay, or the executive
of the political unit. In the particular case of the petitioner, it should be noted that
he was in fact not even elected in 1982 as one of the six councilmen but
separately as the barangay captain. He was thus correctly deemed resigned
upon his filing of a certificate of candidacy for kagawad in 1989, as this was not
the position he was holding, or was incumbent in, at the time he filed such
certificate.

It is worth stressing that under the original procedure followed in the 1982
barangay elections, the petitioner was elected barangay captain directly by the
voters, separately from the candidates running for mere membership in
the sangguniang barangay. The offices of the barangay captain and councilmen
were both open to the candidates, but they could run only for one or the other
position and not simultaneously for both. By contrast, the candidate under the
present law may aspire for both offices, but can run only for one, to wit, that
of kagawad. While campaigning for this position, he may hope and actually strive
to win the highest number of votes as this would automatically make him
the punong barangay. In this sense, it may be said that he is a candidate for both
offices. Strictly speaking, however, the only office for which he may run and for
which a certificate of candidacy may be admitted is that of kagawad.

It follows that the petitioner cannot insist that he was running not
for kagawad only but ultimately also for punong barangay in the 28 March 1989
election. In fact, his certificate of candidacy was for kagawad and not for punong
barangay. As the basic position being disputed in the barangay election was that
of kagawad, that of punong barangay being conferred only by operation of law on
the candidate placing first, the petitioner had to forfeit his position of punong
barangay, which he was holding when he presented his candidacy for kagawad.
Consequently, he cannot be credited with the four contested votes for Flores on
the erroneous ground that he was still incumbent as punong barangay on the day
of the election.

The petitioner argues that he could not have run for reelection as punong
barangay because the office was no longer subject to separate or even direct
election by the voters. That may be so, but this argument goes to the wisdom of
the law, not its validity, and is better addressed to the legislature. From the strictly
legal viewpoint, the statute does not offend the equal protection clause, as there
are, to repeat, substantial distinctions between the offices of punong
barangay and kagawad. Precisely , the reason for divesting the punong
barangay of his position was to place him on the same footing as the other
candidates by removing the advantages he would enjoy if he were to continue
as punong barangay while running for kagawad.

In sum, we hold that Section 9 of Rep. Act No. 6679 is constitutionally defective
and must be struck down, but the challenged resolution must be sustained as a
reasonable and valid implementation of the said statute. The petitioner was no
longer the incumbent punong barangay on election day and so was not entitled
to the benefits of the equity-of-the-incumbent rule. The consequence is that the
four votes claimed by him were correctly considered stray, making the private
respondent the punong barangay of Poblacion, Tayum, Abra, for having received
the highest number of votes for kagawad.

It remains to stress that although the elections involved herein pertain to the
lowest level of our political organization, this fact has not deterred the highest
tribunal from taking cognizance of this case and discussing it at length in this
opinion. This only goes to show that as long as a constitutional issue is at stake,
even the barangay and its officers, for all their humility in the political hierarchy,
deserve and will get the full attention of this Court.

WHEREFORE, the petition is DISMISSED. Judgment is hereby rendered:

1. Declaring Section 9 of Rep. Act No. 6679 UNCONSTITUTIONAL insofar

as it provides that barangay election contests decided by the municipal or
metropolitan trial court shall be appealable to the regional trial court;

2. Declaring valid Section 16(3) of Com. Res. No. 2022-A dated January 5,
1989; and

3. Declaring private respondent Nobelito Rapisora the duly elected punong

barangay of Poblacion, Tayum, Abra.

No pronouncement as to costs.

SO ORDERED.

RAYMOND P. ESPIDOL v Comelec, G.R. No. 164922 October 11, 2005

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

DECISION
CALLEJO, SR., J.:

Before the Court is the petition for certiorari and prohibition filed by
Raymond P. Espidol seeking to nullify the Resolution [1] dated August 30, 2004 of
the Commission on Elections (COMELEC) en banc in SPC No. 04-180. The said
resolution affirmed the COMELEC Second Division Resolution [2] dated July 16,
2004 annulling the petitioners proclamation as the duly-elected municipal mayor of
Ramon, Isabela, during the May 10, 2004 elections.
The Antecedents
Petitioner Raymond P. Espidol and private respondent Wilfredo L. Tabag were
rival candidates for Mayor of the Municipality of Ramon, Isabela, in the May 10,
2004 synchronized national and local elections.[3] Petitioner Espidol, a re-
electionist, was the official candidate of the Lakas ng Bansa (Lakas)-Christian
Muslim Democrats (CMD) coalition,[4] while private respondent Tabag was the
official candidate of the Partidong Demokratiko ng Pilipinas-Laban (PDP-Laban).
[5]
The municipality had a total of 117 precincts.[6]

At about 6:00 p.m. of May 10, 2004, the Municipal Board of Canvassers (MBC) of
Ramon, consisting of Chairman Atty. Agripino A. De Guzman, Jr., Vice-Chairman
Pedro L. Gueco and Member-Secretary Rosalinda B. Doroni, convened at the
municipalitys Barangay Training Center to commence the canvassing. [7] Actual
canvassing started at around 3:00 a.m. of the following day or May 11, 2004, and
formally adjourned at about 8:30 p.m., with the MBC scheduling the resumption of
the canvass at 9:00 a.m. of the next day.[8]

However, no canvassing took place on May 12 and 13, 2004 because MBC
Chairman De Guzman failed to report for work at the canvassing center. [9] In his
After-Incident-Report Memorandum for Commissioner Mehol K. Sadain,
Commissioner-in-Charge for Regions II and III, De Guzman reported that, in the
evening of May 11, 2004, just after the adjournment of the canvassing proceedings,
he and his group of tabulators were harassed and intimidated by allies and political
supporters of petitioner Espidol. De Guzman further averred that on their way to
Santiago City where they were temporarily billeted, their car was tailed by a
vehicle belonging to petitioner Espidols camp. Fearing for their safety, De Guzman
immediately requested protection from the local police. This did not allay the fears
of his staff because the next day, his group of tabulators fled back to Manila.[10]

Together with the After-Incident-Report, De Guzman submitted to

Commissioner Sadain another Memorandum[11] requesting for a transfer of the
canvassing venue to Manila citing as reason the volatile peace and order situation
in Ramon, Isabela. On May 13, 2004, Commissioner Sadain denied De Guzmans
request for a change of venue in view of the opposition of the other members of the
MBC who refuted De Guzmans claims of intimidation and harassment.[12]

On May 14, 2004, the MBC reconvened and resumed the canvassing of the
election returns. The canvassing continued until the evening of May 15, 2005.
During the said proceedings, private respondent Tabag, through his lawyers, orally
sought the exclusion of several election returns from the following precincts,
namely: Precinct Nos. 2A, 4A/7A, 10A, 49A, 52A, 57A, 66A, 93A, 95/96A,
97A/98A, 103A, 112A, 15A, 24A, 47A&B, 63A, 88A, 92A/94, 50A, 56A,
60A/62A, 74A, 83A, 121A, 123A, 114A. Private respondent Tabag objected to the
inclusion of these election returns on the following grounds: (1) that the security
envelopes containing the election returns did not have the proper seals as required
by Section 212 of the Omnibus Election Code (OEC); (2) that the election returns
did not bear the signature of the chairman of the Board of Election Inspectors
(BEI) as required by the same law; and (3) that the election returns did not have the
thumbprints of the members of the BEI in the box provided for the purpose, and in
some, the thumbprints and signatures of the BEI at the close of each entry or at the
end of each tally/taras of each candidate were superimposed on the said tally/taras,
thereby obscuring the number of votes obtained by each at the end of every entry.
[13]

Despite these objections, and without any formal or written ruling thereon,
the MBC included the contested election returns. The canvassing was concluded at
about 9:30 p.m. of May 15, 2004.[14]

In the morning of May 16, 2004, private respondent Tabag, through counsel,
filed a petition with the MBC vigorously opposing the impending proclamation on
the ground that the proceedings of the board were irregular. De Guzman read the
petition aloud. Nonetheless, at 9:00 a.m. of the same day, or barely twelve (12)
hours after the conclusion of the canvassing of votes, the MBC proceeded to
proclaim petitioner Espidol as the winning candidate for mayor, along with the
vice-mayor and eight councilors.[15] Petitioner Espidol obtained 8,647 votes as
against his closest rival, private respondent Tabag, who obtained 6,635 votes, or a
margin of 2,012 votes.[16] Minutes after the proclamation, the counsel of private
respondent Tabag submitted to the MBC his written objections to the inclusion in
the canvass of the contested election returns. The MBC did not make a formal or
written ruling thereon.[17]

On May 24, 2004, private respondent Tabag filed with the COMELEC a
petition for annulment of proclamation.[18] Named respondents therein were MBC
Chairman De Guzman, and petitioner Espidol. The petition was docketed as SPC
04-180 and raffled to the COMELEC Second Division.

In support of his petition, private respondent Tabag alleged that:

 1. The MBOC acted in violation of RA 7166 and Comelec Resolution No. 2962
(6669) and with grave abuse of discretion amounting to lack of jurisdiction, in
proclaiming private respondent (Espidol) as winner despite the pending and
unresolved appeals before it, the railroading of petitions for exclusion without any
hearing and written rulings thereon, and the petitions for exclusion which were
not acted and ruled upon by it, considering that the contested returns will
adversely affect the results of the election.

2. The proclamation by the board of private respondent as winner, is vitiated by

duress, coercion, intimidation and threats and the mob rule, and the preparation of
the election returns in certain barangays of the municipality is likewise vitiated by
intimidation and threats resulting to falsified and materially defective returns and
failure of elections and, therefore, not made freely and voluntarily as the true will
of the electorate, considering that the contested returns will affect the results of
the election.

3. The integrity, genuineness and sanctity of the contested election returns have
been violated because the security envelopes containing the election returns do
not have the proper seals provided by the commission for the purpose when
prepared by the BEI until the same were subsequently transmitted to and
canvassed by the MBOC, the election returns did not bear the signature of the
chairman of the BEIs, the election returns do not have the
thumbmarks/thumbprints of the members of the BEI in the boxes provided for the
purpose, and in some, the thumbmarks and signatures of the BEI at the close of
each entry or at the end of each tally/taras of each candidate were superimposed
on the said tally/tarasthereby obscuring the number of votes obtained by each at
the end of every entry.

4. Discrepancy in the statement of votes by precinct of the MBOC where the sum
total of the number of votes obtained by the three (3) mayoralty candidates is
greater than the number of those who actually voted in all the 117 precincts of the
municipality of Ramon, Isabela.[19]

On June 9, 2004, the COMELEC Second Division issued summonses with notice
of hearing on June 17, 2004. During the said hearing, the parties made their
respective manifestations. Subsequently, petitioner Espidol was given five (5) days
to file his Answer-Memorandum, while private respondent Tabag and De Guzman
were also given the same period to file their respective memoranda. On June 21,
2004, private respondent Tabag filed his Memorandum, while petitioner Espidol
and De Guzman filed their respective Answer-Memoranda on June 22, 2004.[20]

In his Answer-Memorandum,[21] petitioner Espidol contended that the

grounds raised by private respondent Tabag were not proper for a pre-proclamation
controversy. Moreover, the latter did not raise his objections properly. Petitioner
Espidol also refuted private respondent Tabags allegations of massive vote buying,
threats and intimidation.

For his part, MBC Chairman De Guzman, in his Answer-Memorandum,

[22]
admitted that the board did not make any formal or written rulings on the
objections raised by private respondent Tabag. De Guzman averred that there were
persistent threats and intimidation which constrained him to hastily finish the
canvassing. In fact, two of the tabulators with him (De Guzman) who were from
Manila went home without finishing their task of tabulating because of fear for
their safety. These tabulators from Manila, were replaced with local municipal
employees.

Acting on the pleadings filed by the parties, the COMELEC Second Division
issued the Order[23] dated June 23, 2004 suspending the effects of petitioner
Espidols proclamation:

Due to the seriousness of the allegation that the Board of Canvassers

issued the proclamation even before questions involving the validity of returns
which will affect the result of the election are resolved by the Commission, which
is clearly in violation of the above mandated procedure, and, further, that the
proclamation of private respondent [referring to Espidol] as the Mayor-elect of the
Municipality of Ramon, Isabela was allegedly issued under duress, and with
intimidation, coercion and threats, the Commission (Second Division) hereby
orders that the effect of the proclamation of private respondent Raymond P.
 Espidol be suspended until the issues raised on the irregularities and alleged
duress in the issuance of the proclamation be resolved on the merit.

WHEREFORE, premises considered, the Second Division of the

Commission hereby SUSPENDS THE EFFECT OF THE PROCLAMATION of
private respondent Raymond P. Espidol, with the note that the instant petition
shall be resolved on the merit with dispatch.

SO ORDERED.[24]

In defiance of the said order, petitioner Espidol took his oath of office as Mayor of
Ramon, Isabela on June 25, 2004.[25] Consequently, on June 26, 2004, private
respondent Tabag filed with the COMELEC an urgent motion to annul the oath of
petitioner Espidol and to restrain him from assuming the duties and functions of
the Municipal Mayor of Ramon, Isabela. Private respondent Tabag also prayed that
petitioner Espidol be cited for contempt for blatantly disregarding the June 23,
2004 Order.[26]

On June 29, 2004, the COMELEC Second Division, acting on the urgent
motion, issued an Order, the fallo of which stated thus -

WHEREFORE, premises considered, respondent [referring to petitioner

Espidol] is hereby directed to submit his comment to the above motion within five
(5) days from notice. A stern warning is further directed upon respondent to
refrain from committing acts which are in contravention of the Commissions June
23, 2004 Order and which tend to obstruct the proper resolution by the
Commission of the present controversy, lest a severe sanction shall be imposed
upon the same.

SO ORDERED.[27]
Notwithstanding the two orders, on June 30, 2004 the beginning of the term of
office of all elective officials Espidol assumed office as Mayor of Ramon, Isabela
and has since been discharging its functions and duties.

On July 16, 2004, the COMELEC Second Division promulgated the

Resolution[28] declaring petitioner Espidols proclamation illegal. It held that the
MBC failed to give private respondent Tabag 24 hours from the time of his oral
objections to submit his evidence in support thereof, in gross violation of Section
20 (c) of Republic Act (R.A.) No. 7166. Worse, the MBC acted without authority
when it proclaimed petitioner Espidol as the duly elected Mayor of Ramon,
Isabela, without making any written rulings on the objections raised by private
respondent Tabag, in gross violation of paragraph (i) of the same provision. It
further ruled that MBC was pressured, coerced, threatened and intimidated by
petitioner Espidol in order to proclaim him. Further, the COMELEC Second
Division opined that since the number of the votes cast for the mayoralty position
exceeded the number of registered voters who actually voted by 858 as reflected in
the Statement of Votes (SOV), there was enough basis to annul petitioner Espidols
proclamation. The dispositive portion of the resolution reads:
WHEREFORE, premises considered, the Petition to Annul the
Proclamation of Respondent Raymond P. Espidol, as Mayor of Ramon, Isabela, is
hereby GRANTED; consequently, the proclamation of Respondent Raymond P.
Espidol is hereby declared NULL and VOID. A Municipal Board of Canvassers
shall be reconstituted to conduct a re-canvassing of the election returns strictly
adhering to the prescribed procedures for canvassing and in handling contested
election returns; meanwhile, the Vice-Mayor elect shall temporarily assume the
mayoralty post as Acting Mayor, until further notice; furthermore, the Provincial
Commanding Officer of the Philippine National Police in the Province of Isabela
is hereby deputized, together with the Chief of Police of the Municipality of
Ramon, Isabela, to assist the Election Officer of the same municipality, in
ensuring that this resolution be immediately enforced. Let a copy of this
resolution be furnished to the Department of Interior and Local Government for
 their information and guidance in implementing the provision on temporary
succession in the local government as provided in the Local Government Code.

The charge of indirect contempt against respondent Raymond P. Espidol shall be

treated as a separate case and subjected to a hearing in compliance with the
requirements of due process. Petitioner is further advised that the appropriate
complaint for election offense against the alleged offenders be filed with the
Commission.

SO ORDERED.[29]

On July 21, 2004, petitioner Espidol filed a motion for reconsideration with
the COMELEC Second Division.[30]
On August 30, 2004, the COMELEC en banc promulgated its
Resolution[31] affirming in toto the COMELEC Second Divisions Resolution of
July 16, 2004. The dispositive portion of the COMELEC en bancs resolution reads:

WHEREFORE, premises considered, the Commission En Banc hereby

DENIES the Motion for Reconsideration of Private Respondent for lack of merit
and AFFIRMS the Resolution of the Second Division of the Commission
ANNULLING THE PROCLAMATION of Private Respondent Raymond Espidol.
We further AFFIRM the Second Divisions issuance of the interlocutory order
SUSPENDING THE EFFECT OF THE PROCLAMATION of Private
Respondent Raymond Espidol. We further emphasize that private respondent
Raymond Espidol has no authority to assume the Office of the Mayor from the
very beginning or on June 30, 2004, his proclamation being null and void ab
initio. Private respondent Raymond Espidol is hereby directed to physically
vacate the Office of the Mayor for having no authority to assume and remain
therein. Accordingly, as provided in the Local Government Code, the Vice-Mayor
is hereby directed to assume the Office of the Mayor temporarily until the
controversy as to who shall assume the post shall have been resolved. Let a copy
of this resolution be issued to the Department of Interior and Local Government
and the Philippine National Police for their information and guidance.
Furthermore, the Provincial Commander of the Philippine National Police of the
Province of Isabela, as assisted by the Municipal Chief of Police of Ramon,
Isabela is hereby DEPUTIZED TO ASSIST the Election Officer of Ramon,
Isabela or any authorized representative of the Commission on Elections, and
ENSURE that this resolution be ENFORCED.

SO ORDERED.[32]
The COMELEC en banc affirmed the findings of the Second Division as it held
that the proclamation of petitioner Espidol is null and void for having been made
amidst questionable circumstances, particularly by railroading the proclamation, as
admitted by the Chairman of the MBC, when he failed or refused to follow the
canvassing procedure, especially the issuance of written rulings in the disposition
of objected election returns. This fact, according to the COMELEC en banc, is also
revealed by the minutes of the board of canvassers when no report was made that
written rulings were issued in the disposition of the objections to the election
returns. The COMELEC en banc thus ruled that the Second Division was correct in
preliminarily suspending the effects of petitioner Espidols proclamation and
eventually annulling the same.

The COMELEC en banc opined that while it is true that after a winning
candidate has been proclaimed, the remedy of a losing candidate is to file an
election protest, such rule is applicable only when there has been a valid
proclamation. It likewise debunked petitioner Espidols interpretation of Section
20(c) of R.A. No. 7166 that oral and written objections on election returns must be
simultaneously, i.e., without interval of time, submitted to the board. It
characterized this interpretation as too constricting. Rather, the COMELEC en
banc ratiocinated, an objecting candidate may still submit his written objection and
evidence in support thereof within 24 hours from making the oral objection. It
concluded that election cases are imbued with public interest and laws governing
election contests must be liberally construed to the end that the true wishes of the
electorate prevail.
 Commissioner Virgilio O. Garcillano dissented from the COMELEC en
bancs Resolution of August 30, 2004 as he voted to reconsider the Resolution of
the Second Division. Commissioner Garcillano was of the
view that the [b]oard correctly included the contested election returns in the
canvass as they did not suffer any serious infirmities affecting their integrity.[33]

Aggrieved, petitioner Espidol sought recourse to the Court by filing the present
Petition for Certiorari and Prohibition with Prayer for Temporary Restraining
Order, Maintenance of Status quo and/or Writ of Preliminary Injunction.

In the Resolution[34] dated September 7, 2004, the Court directed the parties to
observe the status quo prevailing before the filing of the petition.

Petitioner Espidol proffers the following issues for the Courts resolution:
I
Did respondent COMELEC commit grave abuse of discretion amounting to lack
or excess of jurisdiction when it resolved to affirm the 16 July 2004 Resolution of
the COMELEC Second Division which erroneously held that the MBC of Ramon,
Isabela did not follow the prescribed procedure in disposing the private
respondents objection to certain ERs[?]

II
Did respondent COMELEC commit grave abuse of discretion amounting to lack
or excess of jurisdiction when it held that the petitioners proclamation was
vitiated by threat, intimidation, coercion and duress[?]

III
Did respondent COMELEC commit grave abuse of discretion [a]mounting to lack
or excess of jurisdiction when it suspended the effects of the petitioners
proclamation[?][35]

Petitioner Espidol contends that De Guzmans tale of threats and intimidation

should have been taken by the COMELEC with a grain of salt. It being patently
baseless and totally fabricated, the COMELEC gravely abused its discretion in
swallowing the same hook, line and sinker. Petitioner Espidol also assails the
COMELEC Second Divisions interlocutory order suspending the effects of his
proclamation, claiming that the same was issued without the required notice and
hearing.

Petitioner Espidol further argues that the grounds invoked by private

respondent Tabag, i.e., lack of inner paper seals, lack of signature of BEI chairman,
absence of thumbmarks on the election returns, among others, are merely defects
in form and not proper subjects of a pre-proclamation controversy. Citing
jurisprudence, petitioner Espidol emphatically asserts that the enumeration in
Section 243 of the Omnibus Election Code (OEC) of the issues that may be raised
in a pre-proclamation controversy is restrictive and exclusive.

He maintains that even assuming that the grounds relied upon by private
respondent Tabag were proper issues in a pre-proclamation controversy, the MBC,
nonetheless, correctly included the orally objected election returns in the
canvassing since the latters oral objections were not reduced into writing and
simultaneously filed with the board as required by Section 20 of R.A. No. 7166.
Petitioner Espidol posits that Section 245 of the OEC, which allows the filing of
the written objection within 24 hours from the time the oral objection was made,
has been amended by Section 20 of R.A. No. 7166 which now requires both oral
and written objections to be simultaneously filed with the MBC. Thus, there was
allegedly no need for the MBC to make any written rulings on the objections made
by private respondent Tabag because these were not raised properly or in the
manner prescribed by Section 20 of R.A. No. 7166.
 Petitioner Espidol points out that private respondent Tabags remedy is not
the exclusion of the contested election returns, but that provided under Section 234
of the OEC, thus

Section 234. Material defects in the election returns. If it should clearly

appear that some requisites in form or data had been omitted in the election
returns, the board of canvassers shall call for all members of the board of election
inspectors concerned by the most expeditious means, for the same board to effect
the correction.

Provided, That in case of the omission in the election returns of the name
of any candidate and/or his corresponding votes, the board of canvassers shall
require the board of election inspectors concerned to complete the necessary data
in the election returns and affix therein their initials: Provided, further, That if the
votes omitted in the returns cannot be ascertained by other means except by
recounting the ballots, the Commission, after satisfying itself that the identity and
integrity of the ballot box have not been violated, shall order the board of election
inspectors to open the ballot box, and, also after satisfying itself that the integrity
of the ballots therein has been duly preserved, order the board of election
inspectors to count the votes for the candidate whose votes have been omitted
with notice thereof to all candidates for the position involved and thereafter
complete the returns.

The right of a candidate to avail of this provision shall not be lost or

affected by the fact that an election protest is subsequently filed by any of the
candidates.

In his Comment,[36] private respondent Tabag supports the findings of the

COMELEC. In addition, he avers that the petition is defective since it failed to
implead Vice-Mayor Mercedez M. Vizcarra, who is now the Acting Mayor of
Ramon, Isabela. He argues that Vice-Mayor Vizcarra is an indispensable party
without whom no final determination of the action may be had.

The petition is bereft of merit.

 Section 20 of R.A. No. 7166 outlines the procedure for the disposition of
contested election returns, thus:

SECTION 20. Procedure in Disposition of Contested Election Returns.

(a) Any candidate, political party or coalition of political parties contesting

the inclusion or exclusion in the canvass of any election returns on any of the
grounds authorized under Article XX or Section 234, 235 and 236 of Article XIX
of the Omnibus Election Code shall submit their oral objection to the chairman of
the board of canvassers at the time the questioned return is presented for inclusion
in the canvass. Such objection shall be recorded in the minutes of the canvass.

(b) Upon receipt of any such objection, the board of canvassers shall
automatically defer the canvass of the contested returns and shall proceed to
canvass the returns which are not contested by any party.

(c) Simultaneous with the oral objection, the objecting party shall also
enter his objection in the form for written objections to be prescribed by the
Commission. Within twenty-four (24) hours from and after the presentation of
such an objection, the objecting party shall submit the evidence in support of the
objection, which shall be attached to the form for written objections. Within the
same period of twenty-four (24) hours after presentation of the objection, any
party may file a written and verified opposition to the objection in the form also to
be prescribed by the Commission, attaching thereto supporting evidence, if any.
The board shall not entertain any objection or opposition unless reduced to
writing in the prescribed forms.
The evidence attached to the objection or opposition submitted by the
parties, shall be immediately and formally admitted into the records of the board
by the chairman affixing his signature at the back of each and every page thereof.

(d) Upon receipt of the evidence, the board shall take up the contested
returns, consider the written objections thereto and opposition, if any, and
summarily and immediately rule thereon. The board shall enter its ruling on the
prescribed form and authenticate the same by the signatures of its members.

(e) Any party adversely affected by the ruling of the board shall
immediately inform the board if he intends to appeal said ruling. The board shall
enter said information in the minutes of the canvass, set aside the returns and
proceed to consider the other returns.

(f) After all the uncontested returns have been canvassed and the contested
returns ruled upon by it, the board shall suspend the canvass. Within forty-eight
(48) hours therefrom, any party adversely affected by the ruling may file with the
board a written and verified notice of appeal; and within an unextendible period
of five (5) days thereafter, an appeal may be taken to the Commission.
 (g) Immediately upon receipt of the notice of appeal, the board shall make
an appropriate report to the Commission, elevating therewith the complete records
and evidence submitted in the canvass, and furnishing the parties with copies of
the report.

(h) On the basis of the records and evidence elevated to it by the board, the
Commission shall decide summarily the appeal within seven (7) days from receipt
of the said records and evidence. Any appeal brought before the Commission on
the ruling of the board, without the accomplished forms and the evidence
appended thereto, shall be summarily dismissed.

The decision of the Commission shall be executory after the lapse of seven
(7) days from receipt thereof by the losing party.

(i) The board of canvassers shall not proclaim any candidate as winner
unless authorized by the Commission after the latter has ruled on the objections
brought to it on appeal by the losing party. Any proclamation made in violation
hereof shall be void ab initio, unless the contested returns will not adversely affect
the results of the election.[37]

In the present case, private respondent Tabag, through his lawyers, sought during

the canvassing the exclusion of several election returns on various grounds, among

them: lack of inner paper seals, lack of signature of the Chairman of the BEI,

absence of thumbmarks of the members of the BEI, etc. These objections were

tabulated[38] as follows:
Precinct Number of
Number Votes Cast
2A - petition for exclusion filed by petitioner but 151
inclusion was ordered by MBOC without
written ruling; verbally appealed while
written Notice of Appeal was not acted upon.
4A/7A - petition for exclusion filed by petitioner but 174
inclusion was ordered by MBOC without written
ruling; verbally appealed while written Notice of
Appeal was not acted upon.
10A - petition for exclusion filed by petitioner but 138
inclusion was ordered by MBOC without written
ruling; verbally appealed while written Notice of
Appeal was not acted upon.
49A - petition for exclusion filed by petitioner but 135
 inclusion was ordered by MBOC without written
ruling; verbally appealed while written Notice of
Appeal was not acted upon.
52A - petition for exclusion filed by petitioner but 136
inclusion was ordered by MBOC without written
ruling; verbally appealed while written Notice of
Appeal was not acted upon.
57A - petition for exclusion filed by petitioner but 146
inclusion was ordered by MBOC without written
ruling; verbally appealed while written Notice of
Appeal was not acted upon.
66A - petition for exclusion filed by petitioner but 137
inclusion was ordered by MBOC without written
ruling; verbally appealed while written Notice of
Appeal was not acted upon.
93A - petition for exclusion filed by petitioner but 168
inclusion was ordered by MBOC without written
ruling; verbally appealed while written Notice of
Appeal was not acted upon.
95/96A - petition for exclusion filed by petitioner but 198
inclusion was ordered by MBOC without written
ruling; verbally appealed while written Notice of
Appeal was not acted upon.
97A/98A - petition for exclusion filed by petitioner but 178
inclusion was ordered by MBOC without written
ruling; verbally appealed while written Notice of
Appeal was not acted upon.
103A - petition for exclusion filed by petitioner but 164
inclusion was ordered by MBOC without written
ruling; verbally appealed while written Notice of
Appeal was not acted upon.
112A - petition for exclusion filed by petitioner but 141
inclusion was ordered by MBOC without written
ruling; verbally appealed while written Notice of
Appeal was not acted upon.
15A - petition for exclusion filed by petitioner but 145
inclusion was ordered by MBOC without written
ruling; no appeal from private respondent.
24A - petition for exclusion filed by petitioner but 132*
inclusion was ordered by MBOC without written
ruling; no appeal from private respondent.
47A & B - petition for exclusion filed by petitioner but 242*
inclusion was ordered by MBOC without written
ruling; no appeal from private respondent.
63A - petition for exclusion filed by petitioner but 138*
inclusion was ordered by MBOC without written
ruling; no appeal from private respondent.
88A - petition for exclusion filed by petitioner but 164*
inclusion was ordered by MBOC without written
ruling; no appeal from private respondent.
92A/94 -canvass was deferred by MBOC for lack of 188*
summation on the first page of the ER but the
inclusion thereafter was made without written
ruling of the MBOC.
 50A - petition for exclusion with offer of evidence 158
in writing was submitted in the morning but was not
acted and not ruled upon, thereafter, MBOC proclaimed
the respondent.
56A - petition for exclusion with offer of evidence 149
in writing was submitted in the morning but was not
acted and not ruled upon, thereafter, MBOC proclaimed
the respondent.
60A/62A - petition for exclusion with offer of evidence 210
in writing was submitted in the morning but was not
acted and not ruled upon, thereafter, MBOC proclaimed
the respondent.
74A - petition for exclusion with offer of evidence 144
in writing was submitted in the morning but was not
acted and not ruled upon, thereafter, MBOC proclaimed
the respondent.
83A - petition for exclusion with offer of evidence 145
in writing was submitted in the morning but was not
acted and not ruled upon, thereafter, MBOC proclaimed
the respondent.
121A - petition for exclusion with offer of evidence 169
in writing was submitted in the morning but was not
acted and not ruled upon, thereafter, MBOC proclaimed
the respondent.
123A - petition for exclusion with offer of evidence 149
in writing was submitted in the morning but was not
acted and not ruled upon, thereafter, MBOC proclaimed
the respondent.
114A - petition for exclusion with offer of evidence 161
in writing was submitted in the morning but was not
acted and not ruled upon, thereafter, MBOC proclaimed
the respondent.

Total Votes Cast on Contested Precincts 4,160

As shown above, in no single instance did the MBC make any written ruling

on the numerous petitions for exclusion filed by private respondent Tabag. Even

those objections made in writing by private respondent Tabag were not acted and

ruled upon by the MBC; neither did it act on the several written notices of appeal

filed by private respondent Tabag.

 Clearly, the MBC violated its duty under paragraph (d) of Section 20 of R.A.
No. 7166 to enter its rulings, particularly on those objections that have been
reduced to writing, on the prescribed form and authenticate the same by the
signatures of its members. De Guzman, the Chairman of the MBC, in his answer-
memorandum filed with the COMELEC Second Division, admitted that the MBC
did not make any written ruling vis--vis private respondent Tabags objections, even
those made in writing.

Petitioner Espidol maintains that the MBC could not be faulted for not
making any written rulings on private respondent Tabags objections because most
were not reduced to writing as required by paragraph (c) of Section 20 of R.A. No.
7166. Further, those objections made in writing were not allegedly simultaneously
submitted with the oral objections. According to petitioner Espidol, the word
simultaneous in Section 20 (c) of R.A. No. 7166 should be construed strictly in
view of its mandatory nature.

This proffered construction fails to persuade. As correctly ruled by the

COMELEC en banc and the Second Division, the word simultaneous must not be
given a strict and constricting meaning. Submission of the written objection within
24 hours from when the oral objection was made is substantial compliance with the
law. The COMELEC en bancs ratiocination on this point is quoted with approval:

There is no debate that an oral objection must be reduced into writing.

Even the case laws cited by private respondent [referring to Espidol] assert the
same requirement. However, there was never any discussion that the same shall
be submitted at the same moment as the oral objection. The requirement therefore
that written objections must be submitted simultaneously is just limited to the
provision itself.

To advance, therefore, the technical interpretation of the word

simultaneous, is to require that written objections should be submitted at the same
 time with the oral objection. The fact that the rule speaks of an oral objection
separate from the written contemplates that both forms may be submitted at
different moments, as long as this is done within reasonable time. Hence, if a
counsel submits his written objection an hour later, the same may be considered
compliance with the rule. The same may be the situation if counsel may submit
written objections at the end of the canvassing for the day. The question,
therefore, is up to when reasonable time be in the submission of written
objections.

The interpretation must be put in the context of the whole process of

disposing objected returns. Considering that the objections have to be ruled upon
by the board of canvassers based on the evidence which are required to be
submitted within twenty-four (24) hours, the board, therefore, has to wait for at
least twenty-four (24) hours, before they could rule on the objection. Hence, even
if the board already has written objections with them, they still cannot rule on the
same until the evidence has been submitted within twenty-four (24) hours.

It is therefore, the consideration of this Commission that the board of

canvassers should not rule on the objections of the parties until the twenty-four-
hour (24) period has lapsed, unless they already have with them the written
objections as well as the evidence. In that case, submission of written objections
within twenty-four (24) hours together with the evidence, may be considered
substantial compliance with the rule.[39]

Petitioner Espidol likewise justifies the MBCs failure to rule on the

objections of private respondent Tabag by stating that these were not proper for
pre-proclamation controversy; hence, the dismissal thereof by the MBC was
proper. This contention deserves scant consideration.

A pre-proclamation controversy is defined as referring to any question

pertaining to or affecting the proceedings of the board of canvassers which may be
raised by any candidate or by any registered political party or coalition of political
parties before the board or directly with the Commission, or any matter raised
underSections 233, 234, 235 and 236 in relation to the preparation, transmission,
receipt, custody and appreciation of the election returns.[40] Issues that may be
raised in a pre-proclamation controversy are as follows:
(a) Illegal composition or proceedings of the board of canvassers;
 (b) The canvassed election returns are incomplete, contain material defects,
appear to be tampered with or falsified, or contain discrepancies in the same
returns or in another authentic copies thereof as mentioned in Sections 233, 234,
235 and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion or
intimidation, or they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controversy polling places were

canvassed, the results of which materially affected the standing of the aggrieved
candidate or candidates.[41]

Admittedly, the Court had the occasion to state that lack of inner paper seals
in the election returns does not justify their exclusion from canvassing and that
such is not proper subject of a pre-proclamation controversy. [42] However, in the
present case, aside from the lack of inner paper seals, private respondent Tabag
raised other grounds for the exclusion of certain election returns, including lack of
signature of the Chairman of the BEI and absence of thumbmarks of the members
of the BEI.

The signatures and thumbmarks of the BEI members are required to be

affixed on the election returns under Section 212 of the OEC, which states in part:
Sec. 212. Election returns. The board of election inspectors shall prepare the
election returns simultaneously with the counting of the votes in the polling place
as prescribed in Section 210 hereof. The return shall be prepared in sextuplicate.
The recording of votes shall be made as prescribed in said section. The entry of
votes in words and figures for each candidate shall be closed with the signature
and the clear imprint of the thumbmark of the right hand of all the members,
likewise to be affixed in full view of the public, immediately after the last vote
recorded or immediately after the name of the candidate who did not receive any
vote.

If the signatures and/or thumbmarks of the members of the board of election

inspectors or some as required in this provision are missing in the election returns,
 the board of canvassers may summon the members of the board of election
inspectors concerned to complete the returns.

In relation thereto, the pertinent proviso of Section 234 of the OEC is quoted anew:
Sec. 234. Material defects in the election returns. If it should appear that some
requisites in form or data had been omitted in the election returns, the board of
canvassers shall call for all the members of the board of election inspectors
concerned by the most expeditious means, for the same board to effect the
correction

Consequently, the absence of these signatures and thumbmarks rendered the

said election returns materially defective and, therefore, proper subject of a pre-
proclamation controversy particularly falling under paragraph (b) of Section 243 of
the OEC which is quoted anew:
(b) The canvassed election returns are incomplete, contain material
defects, appear to be tampered with or falsified, or contain discrepancies in the
same returns or in another authentic copies thereof as mentioned in Sections
233, 234, 235 and 236 of this Code;

Granting arguendo that the objections interposed by private respondent

Tabag were not proper for a pre-proclamation controversy, nonetheless, the MBC
should have made written rulings thereon. Under Section 20 of R.A. No. 7166, the
board of canvassers is mandated to grant an objecting party 24 hours from the time
of the presentation of the oral objection to submit its evidence. Thereafter, the other
party is also given 24 hours to submit its opposition. If no opposition has been
filed, the board shall rule on the objections and enter its ruling in the prescribed
form and authenticate the same with the signatures of the members of the board. As
earlier opined, De Guzman, as Chairman of the MBC, admitted in his Answer-
Memorandum that the board did not make any written rulings on the objections
interposed by private respondent Tabag, including those reduced to writing.
 The requirement that the board of canvassers reduce to writing its rulings is
mandatory:
It is clear from this provision that the board of canvassers is under the obligation
to make a written ruling on the formal objections made by any of the parties, who
may then appeal the same to the COMELEC. It is equally clear that the failure or
refusal of the board of canvassers to discharge this obligation should not in any
way prejudice the objecting partys right to elevate the matter to the COMELEC
for proper review. Otherwise, all that a board of canvassers partial to one of the
candidates has to do to favor him would be to refuse to make a written ruling on
his opponents objections and thereby prevent their review by the COMELEC.[43]

The Court notes that during the final day of the canvassing, or on May 15,
2004, private respondent Tabag made oral objections to the inclusion of several
election returns. The canvassing concluded at about 9:30 p.m. of the said day.
Barely 12 hours thereafter, or at 9:00 a.m. of May 16, 2004, the MBC proclaimed
petitioner Espidol as the mayor-elect of Ramon, Isabela. By so doing, the MBC
effectively deprived private respondent Tabag of the opportunity to seasonably
substantiate his oral objections with evidence and submit the corresponding written
objections. The proclamation of petitioner Espidol was clearly made with undue
haste, considering that it was made even before the lapse of the 24-hour period
given to private respondent Tabag under Section 20(c) of R.A. No. 7166 to submit
the evidence and written objections in support of his oral objections. In other
words, the MBC, without awaiting for or considering private respondent Tabags
evidence and written objections to support his oral objections and, consequently,
without any lawful ruling thereon, proclaimed petitioner Espidol.

In the process, the MBC not only deprived private respondent Tabag of the
right to appeal its ruling to the COMELEC, it likewise deprived the latter body to
rule on the objections of private respondent Tabag. Such act of the MBC violated
Section 20 (i) of R.A. No. 7166, quoted again below:
(i) The board of canvassers shall not proclaim any candidate as winner unless
authorized by the Commission after the latter has ruled on the objections brought
to it on appeal by the losing party. Any proclamation made in violation hereof
shall be void ab initio, unless the contested returns will not adversely affect the
results of the election.

The following pronouncement in Jamil v. Comelec[44] is likewise instructive:

It is our considered view that both proclamations of petitioner and private
respondent are invalid.

Clear it is that petitioner Jamil was proclaimed on June 26, 1995 after Casan
Macadato, chairman of the second MBC, conducted an investigation with respect
to the inclusion or exclusion of the returns from Precinct Nos. 5, 10-1 and 20-1
and after he submitted his investigation report, which he alone signed, to the
COMELEC on June 5, 1995 merely recommending the inclusion of the three (3)
returns in the canvass. As we have mentioned above, said investigation report was
not in form or substance a ruling of the MBC because it did not make a definitive
pronouncement or disposition resolving the issues regarding the questioned
returns but only a recommendation to the COMELEC. There being no ruling on
the inclusion or exclusion of the disputed returns, there could have been no
complete and valid canvass which is a prerequisite to a valid proclamation.[45]

In addition, it is significant to note that the COMELEC Second Division

found a discrepancy between the number of votes cast for the
mayoralty candidates and the number of registered voters who actually voted.
Upon verification of the SOV, the COMELEC Second Division discovered that the
total number of those who actually voted was 17,207; on the other hand, the total
number of votes cast for the mayoralty candidates added up to 18,065, hence,
exceeding the total number of those who actually voted by 858. This finding was
affirmed by the COMELEC en banc.
 Pertinently, in Duremdes v. COMELEC,[46] cited by the COMELEC Second
Division, the Court affirmed the COMELECs nullification of the proclamation of a
candidate for the Vice-Governor as there existed discrepancies between the number
of votes appearing in the SOV and that in the election returns. According to the
Court in the said case, any error in the Statement of Votes would affect the
proclamation made on the basis thereof. The true will of the electorate may thus be
not fully and faithfully reflected by the proclamation[47]

Equally damaging to petitioner Espidols cause is the admission made by De

Guzman in his Answer-Memorandum of the presence of threats and intimidation
that constrained him to hastily finish the canvassing and proclamation.[48] The
following disquisition of the COMELEC Second Division with respect to the
discrepancy in the SOV and the presence of threats and intimidation is apropos:
The above discrepancy may not overturn the alleged lead of respondent [referring
to Espidol] from petitioner [referring to Tabag] but such figure tells of the fact
that a deliberate attempt to pad ones votes may have transpired, and the
Commission cannot just close its eyes to this travesty of the integrity of the
electoral process. In addition to this, when We consider all the other
circumstances surrounding the canvassing of the returns in Ramon, Isabela,
including the admission of the MBOC Chairman of the presence of threats and
intimidation, as well as the irregularities in the accomplishment of the election
returns as found during the canvassing, We are lead to conclude that the
proceedings of the MBOC in Ramon, Isabela has been irregular and that the same
has been vitiated with threats and intimidation, hence, annulment of Respondents
proclamation is in order.[49]

Under the foregoing circumstances, the COMELEC did not commit grave abuse of
discretion when it nullified the proclamation of petitioner Espidol. In a long line of
cases, the Court has affirmed the power of the COMELEC to annul an illegal
canvass and proclamation.[50]
 Lastly, petitioner Espidol decries that he was deprived of due process when
the COMELEC Second Division issued the Order dated June 23, 2004 suspending
the effects of his proclamation. The records, however, belie this claim, as it has
been shown that on June 9, 2004, the COMELEC issued summonses with notice of
the hearing set on June 17, 2004; on the said date, respective counsel of petitioner
Espidol and private respondent Tabag attended the hearing; after making their
respective manifestations, petitioner Espidols counsel was given five (5) days to
file his answer-memorandum; and on June 22, 2004, petitioner filed his Answer-
Memorandum.

The fact that the order of the COMELEC Second Division suspending the
effects of petitioner Espidols proclamation was issued a day after he filed his
Answer-Memorandum does not mean that the order was tainted with irregularity.
As the COMELEC en banc explained

The order to suspend the effect of private respondents [referring to petitioner

Espidol] proclamation is an interlocutory order based on a prima facie finding that
the allegations raised by the petitioner have merits. It is also intended to prevent
private respondent from having the advantage of incumbency, hence, depriving
him of the possibility of delaying the resolution of this case and of a possible
election protest. If, on the other hand, private respondent is confident that he is the
true winner of the election then such fact will come out during the re-canvassing
of the election returns. However, if he has something to hide then his best
strategy, indeed, is to grab the proclamation, assume the office and delay any
controversy or protest filed against him until the end of the term of the subject
office.

Such interlocutory order was eventually justified by the actuation of private

respondent of taking his oath of office and in actually assuming the post of Mayor
despite the order suspending the effect of his proclamation. His counsel should
have advised him to follow the order of the Commission and push for the
immediate resolution of the controversy so that any doubt as regards his
proclamation will immediately be erased, unless, such doubt is corroborated
during the re-canvassing of the election returns.[51]
 In administrative proceedings, the essence of due process is simply an
opportunity to be heard, or an opportunity to explain ones side or opportunity to
seek a reconsideration of the action or ruling complained of.[52] Clearly, petitioner
Espidol was given full opportunity to present his side on the petition for annulment
filed by private respondent Tabag.

It bears reiterating, at this point, that the Court has given its imprimatur on
the principle that the COMELEC is with authority to annul any canvass and
proclamation illegally made.[53] The fact that a candidate illegally proclaimed has
assumed office is not a bar to the exercise of such power. [54] It is also true that as a
general rule, the proper remedy after the proclamation of the winning candidate for
the position contested would be to file a regular election protest or quo warranto.
[55]
This rule, however, admits of exceptions and one of those is where the
proclamation was null and void.[56] In such a case, i.e., where the proclamation is
null and void, the proclaimed candidates assumption of office cannot deprive the
COMELEC of the power to declare such proclamation a nullity.[57]
The rationale therefor is aptly elucidated thus:
We draw from past experience. A pattern of conduct observed in past
elections has been the pernicious grab-the-proclamation-prolong-the-protest-
slogan of some candidates or parties. 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 may not
be out of place to state that in the long history of election contests in this country,
as served in Lagumbay v. Climaco, successful contestant in an election protest
often wins but a mere pyrrhic victory, i.e., a vindication when the term of office is
about to expire or has expired. Protests, counter-protests, revisions of ballots,
appeals, dilatory tactics, may well frustrate the will of the electorate. And what if
the protestant may not have the resources and an unwavering determination with
which to sustain a long drawn-out election contest? In this context therefore all
efforts should be strained as far as is humanly possible to take election returns out
 of the reach of the unscrupulous; and to prevent illegal or fraudulent proclamation
from ripening into illegal assumption of office.[58]

All told, the COMELEC en banc did not commit grave abuse of discretion in
affirming in toto the resolution of the Second Division annulling the proclamation
of petitioner Espidol.

WHEREFORE, the petition is DISMISSED. The Resolution dated August

30, 2004 of the COMELEC en banc in SPC No. 04-180 is AFFIRMED in toto.
The status quo order issued on September 7, 2004 is hereby set aside.

This decision is immediately executory.

SO ORDERED.

DOMINADOR T. BELAC, petitioner, vs. COMMISSION ON ELECTIONS

and ROMMEL DIASEN, respondents. [G.R. No. 145802. April 4, 2001]

DECISION
SANDOVAL-GUTIERREZ, J.:

This is a petition for certiorari and prohibition with prayer for a temporary
restraining order and preliminary injunction, assailing the Resolutions dated February
22, 2000 and November 16, 2000 of the Commission on Elections (COMELEC) en
banc in SPC No. 98-170.
The facts as shown by the records are:
Rommel Diasen of the LAMMP and Dominador Belac of the LAKAS-NUCD
were candidates for governor in the province of Kalinga during the May 11, 1998
national and local elections.
 On May 14, 1998, the Provincial Board of Canvassers started to canvass the
results of the election.
On May 15, 1998, when the Certificate of Canvass and Statement of Votes for the
municipality of Pinukpuk were scheduled for canvassing, Diasen objected to the
inclusion of the election returns of 42 precincts in the said municipality.
On May 19, 1998, Diasen also questioned the inclusion of the election returns of
28 precincts of the town of Tinglayan.
Within twenty-four (24) hours therefrom, Diasen filed with the Kalinga Provincial
Board of Canvassers a petition for exclusion of the Certificates of Canvass and
Statements of Votes for Pinukpuk and Tinglayan, alleging in the main that:
1. The Certificates of Canvass and Statements of Votes were not prepared by the
Board of Election Inspectors as the same were not signed by the respective watchers
for the candidates political parties.
2. There were discrepancies in the tally of votes. The official LAMMP copies of
the official returns have a lesser number of votes than those appearing in the
Statements of Votes for the said municipalities.
However, the Provincial Board of Canvassers proceeded to include in its canvass
the results as stated in the election returns for Pinukpuk. On Diasens objection to the
inclusion of the election returns for Tinglayan, the Board ruled that it will only issue a
certificate of correction since the discrepancies were caused by mere error in
indicating the entries.
On May 19, 1998, the Provincial Board of Canvassers proclaimed Belac as the
duly elected governor for the province of Kalinga.
On May 21, 1998, Diasen appealed to the COMELEC (First Division) from the
rulings of the Provincial Board of Canvassers.
On June 4, 1998, the COMELEC (First Division) issued a Resolution dismissing
Diasens appeal for lack of merit, thus:

Wherefore, premises considered, the appeal is hereby dismissed for lack of merit. The
rulings of the Provincial Board of Canvassers on the petition for exclusion of
Certificate of Canvass and Statement of Votes are hereby affirmed. The Provincial
Board of Canvassers for Kalinga is hereby directed to reconvene and continue with
the canvassing with reasonable dispatch and proclaim the winning candidate if the
votes from the four precincts of Tinglayan, Kalinga where there was failure of
elections would not materially affect the results of the election.
Considering that the records of the case show that additions in the COCs and SOVs of
Pinukpuk for the votes of gubernatorial candidate Dominador Belac were made, the
Law Department is directed to conduct a preliminary investigation for the commission
of an election offense against the members of the Municipal Board of Canvassers of
Pinukpuk, Kalinga.

The Law Department is similarly directed to conduct an immediate investigation on

the possible commission of electoral fraud as alluded to in the ultimate paragraph
before the herein dispositive portion. The Election Officer of Pinukpuk is directed
immediately to cause the transfer of the Book of Voters for the 69 precincts of
Pinukpuk to the Comelec Main Office [c/o Law Department] for this purpose.

On June 19, 1998, Diasen filed a motion for reconsideration of the above
Resolution which was elevated to the COMELEC en banc.
While the said motion was pending resolution in the COMELEC en banc, the
Chairman of the Provincial Board of Canvassers, Atty. Nicasio Aliping, convened the
Board by calling the two other members in order to proclaim Belac as the new
governor. But the two members declined, so only Atty. Aliping proceeded with Belacs
proclamation.
On June 28, 1998, Diasen filed with the COMELEC a separate petition (SPC No.
98-291) to dispute the proclamation of Belac.
Meanwhile, on February 22, 2000, or almost two years after the filing of Diasens
motion for reconsideration on June 19, 1998, the COMELEC en banc promulgated the
first assailedResolution modifying the ruling of the First Division, thus:

WHEREFORE, premises considered, the resolution of the Commission (First

Division) subject of the instant Motion for Reconsideration is hereby modified as
follows:

1) The Provincial Board of Canvassers for Kalinga is hereby directed to proceed with
the canvassing of votes for the office of the provincial governor deducting from the
Certificates of Canvass of the Municipalities of Tinglayan and Pinukpuk the votes
reflected on the election returns from the above-excluded precincts and thereafter
proclaim the winning candidate for governor;

2) The directive to the Law Department to conduct appropriate investigations is

affirmed with the modification, however, that the Board of Election Inspectors
concerned for the municipalities of Pinukpuk and Tinglayan, as well as John Does, be
likewise investigated for possible collusion in the commission of the election offense
and election anomaly, subject of petitioners case.
 The above Resolution was penned by Commissioner Manolo Gorospe, concurred
in by Commissioners Japal Guiani and Luzviminda Tancangco. Chairman Harriet
Demetriou and Commissioner Julio Desamito joined Commissioner Teresita Dy-
liacco Flores in her dissent. In short, the voting was 3-3.
In view of the results of the voting, Belac filed a motion praying that the
COMELEC en banc desist from implementing the February 22, 2000 Resolution in
favor of Diasen, citing Section 6, Rule 18 of the COMELEC Rules of Procedure.
[1]
The COMELEC granted the motion in its February 24, 2000 order and set the re-
hearing on March 9, 2000.
On February 28, 2000, pursuant to the COMELEC en bancs February 22, 2000
Resolution, the Provincial Board of Canvassers proclaimed Diasen as the duly elected
governor. On the same date, Diasen took his oath of office as governor of Kalinga
Province.
On March 9, 2000, after receiving Atty. Alipings Report on March 3, 2000 on
Diasens proclamation, the COMELEC en banc issued an order:

1. To direct Rommel Diasen to cease and desist from discharging the duties and
functions of the Office of the Governor of Kalinga Province until further orders of this
Commission during the pendency of this case;

2. To require both parties to comment on the report of Atty. Nicasio M. Aliping, Jr.,
Regional Election Attorney and Chairman of the Provincial Board of Canvassers of
Kalinga, x x x, and to include in said comment why the proceedings of the Provincial
Board of Canvassers on February 25, 2000 and the subsequent proclamation of Atty.
Rommel Diasen on 28 February 2000 be declared null and void.

Thereafter, the COMELEC en banc re-scheduled the re-hearing of Diasens motion

for reconsideration (in view of the 3-3 voting) set on March 9 to March 23, 2000. The
parties agreed to file their respective memoranda.
Meanwhile, on October 3, 2000, the COMELEC (Second Division) issued a
Resolution in SPC Case No. 98-291 declaring null and void the proclamation of Belac
as governor, holding that:

The proclamation of respondent Belac by the PBC Chairman alone against the votes
of the other two members of the PBC is illegal because the Omnibus Election Code
(Section 255) provides that a majority vote of all the members of the Board of
Canvassers shall be necessary to render a decision.

On November 16, 2000, Belac filed his Manifestation with Formal Motion
claiming that the votes of Commissioners Gorospe and Guiani in the assailed
Resolution dated February 22, 2000 should not be considered since they retired on
February 15, 2000, or before the promulgation, citing the recently decided case of
Ambil vs. COMELEC.[2] In this case, the Supreme Court held that one who is no
longer a member of the Commission at the time the final decision or resolution is
promulgated cannot validly take part in that resolution or decision.
Chairman Demetriou denied Belacs motion.
On November 16, 2000, the Commission en banc, now with new members in
view of the retirement of Commissioners Manolo Gorospe and Japal Guiani,
promulgated the second challenged Resolution, the dispositive portion of which reads:

WHEREFORE, premises considered, the motion for reconsideration is hereby

GRANTED. Accordingly, We hereby:

1. AFFIRM the proclamation of Petitioner-Appellant ROMMEL W. DIASEN as the

duly elected Governor of Kalinga by Public Respondent Provincial Board of
Canvassers of Kalinga;

2. RECALL and LIFT the Order promulgated on March 9, 2000 directing Petitioner-
Appellant to cease and desist from performing the duties and functions of the Office
of Governor for the province of Kalinga;

3. AFFIRM the directive to the LAW DEPARTMENT to conduct appropriate

investigations of the Board of Election Inspectors for the municipalities of Pinukpuk
and Tinglayan, as well as John Does, for possible collusion in the commission of
election offenses and irregularities, subject in the above-entitled case; and

4. FURNISH a copy of this Resolution to the Office of the President, the Secretary of
Interior and Local Government, the Chairman of the Commission on Audit, and the
Secretary of the Sangguniang Panlalawigan of Kalinga Province, for their guidance
and information.

The above Resolution was concurred in by Commissioners Julio Desamito,

Luzviminda Tancangco, Ralph Lantion and Rufino Javier. Commissioner Teresita Dy-
Liaco-Flores again wrote a dissenting opinion, joined by Chairman Demetriou.
Hence, this petition by Dominador Belac on the following grounds:

First Ground

Respondent COMELEC committed grave abuse of discretion amounting to lack

and/or excess of jurisdiction and in fact implicitly deprived petitioner of DUE
PROCESS, when it manifestly, deliberately and utterly FAILED AND REFUSED to
act WITH DISPATCH on private respondents SUMMARY Petition on Pre-
Proclamation Controversy; the Supposed Final Resolution on Mere REHEARING
promulgated only on November 16, 2000, AFTER MORE THAN 30 MONTHS from
the filing of the Petition, clearly violated petitioners right to due process, to a speedy
disposition of cases and an (sic) clearly an act of grave abuse of discretion.

Second Ground

The November 16 Questioned Resolution (Annex A) was absolutely useless and was
indeed superflous (sic) and totally NULL AND VOID, considering that the same was
supposed to be a Final Resolution on a supposed REHEARING under Rule 18,
Section 6 of the COMELEC Rules, wrongfully premised on a supposed previous
EQUALLY DIVIDED VOTE in the February 22, 2000 Resolution of the COMELEC
En Banc, However, legally, procedurally and truthfully there was no such prior
Equally Divided Resolution/Vote that would have required a Rehearing, as the
COMELEC En Banc patently erred in counting and accepting even the null and void
VOTES/signatures of two (2) Commissioners who retired on February 15, 2000 -
prior to the February 22, 2000 promulgation.

Third Ground

RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION WHEN IT
EXCLUDED FROM CANVASS FORTY TWO (42) ELECTION RETURNS FOR
PINUKPUK AND TWENTY EIGHT (28) ELECTION RETURNS FOR
TINGLAYAN, DESPITE UTTER LACK OF LEGAL AND FACTUAL BASES
THEREFOR AND IN GROSS AND WANTON DISREGARD OF LAW AND
WELL-SETTLED JURISPRUDENCE.

Public respondent COMELEC en banc and private respondent Rommel Diasen

filed their respective comments on the petition.
Respondent COMELEC, in its comment, states that based on evidence on record,
there were serious irregularities, tampering and falsification of the questioned election
returns in the contested precincts at Pinukpuk and Tinglayan. On this ground, although
an exception, the COMELEC can rule on the exclusion of the questioned election
returns.
In his comment, respondent Diasen maintains that petitioner Belac can not be
considered the duly elected governor of Kalinga because the respondent COMELEC
(Second Division) unanimously declared null and void his proclamation in its
resolution promulgated on October 3, 2000. Likewise, petitioner was not deprived of
due process considering that he was given the opportunity to be heard and that he
actively participated in the proceedings before the COMELEC. And by such active
participation, he is estopped from questioning the validity of the votes cast by
Commissioners Gorospe and Guiani who retired.
The basic issue for our resolution is whether or not respondent COMELEC in a
pre-proclamation case can go beyond the face of the election returns.
It may be recalled that when the Provincial Board of Canvassers commenced the
canvassing of the Certificates of Canvass and Statements of Votes for Pinukpuk and
Tinglayan, respondent Diasen objected to the inclusion of the election returns of
several precincts in both municipalities; and that within twenty-four hours therefrom,
he filed a formal petition with the Provincial Board of Canvassers for the exclusion of
the Certificates of Canvass and Statements of Votes for the said municipalities.
Section 241 of the Omnibus Election Code provides that a pre-proclamation
controversy refers to any question pertaining to or affecting the proceedings of the
Board of Canvassers which may be raised by any candidate or by any registered
political party or coalition of political parties before the Board or directly with the
Commission, on any matter raised under Sections 233, 234, 235 and 236 in relation to
the preparation, transmission, receipt, custody and appreciation of the election returns.
Section 243 of the Code enumerates the specific issues that may be raised in a
pre-proclamation controversy as follows:

(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to
be tampered with or falsified, or contain discrepancies in the same returns or in other
authentic copies thereof as mentioned in Sections 233, 234, 235 and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion, or intimidation,
or they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were

canvassed, the results of which materially affected the standing of the aggrieved
candidate or candidates.

The above enumeration is restrictive and exclusive. Thus, in Sanchez vs.

COMELEC,[3] this Court held:

3. The scope of pre-proclamation controversy is limited to the issues enumerated

under sec. 243 of the Omnibus Election Code. The enumeration therein of the issues
that may be raised in pre-proclamation controversy, is restrictive and exclusive. In the
absence of any clear showing or proof that the election returns canvassed are
incomplete or contain material defects (sec. 234), appear to have been tampered with,
falsified or prepared under duress (sec. 235) and/or contain discrepancies in the votes
credited to any candidate, the difference of which affects the result of the election
(sec. 236), which are the only instances where a pre-proclamation recount may be
resorted to, granted the preservation of the integrity of the ballot box and its contents,
Sanchez petition must fail.

In his petition with the Provincial Board of Canvassers, respondent Diasen raised
the following grounds:
1. The Certificate of Canvass of Votes is falsified.
2. The Certificate of Votes were prepared under duress, threats, coercion or intimidation.
3. The certificate of Canvass of votes is obviously manufactured as the Statement of Votes
supporting it is likewise manufactured and falsified.
4. There was a deliberate and massive operation DAGDAG-BAWAS in the Certificate of
Canvass and Statement of Votes in Pinukpuk, Kalinga.

1. The votes of Candidate for Governor, Dominador Belac, in Precincts 1A, 2A,
3A, x x x were all padded (OPERATION DAGDAG) or increased in the
Statement of Votes per precinct as well as in the Election Returns.

2. The Election Returns in the above-stated precincts cannot be the basis of a

proper correction of the votes garnered by Belac because said election returns
were likewise tampered with, falsified and manufactured as can be determined
from the documents (ELECTION RETURNS) themselves due to the following:

A. The aforesaid election returns were already prepared even before the actual
counting of votes as shown by the fact that they were prepared by persons other
than the BEIs; (Board of Inspectors)

B. The PENCRAFT of the BEIs in the aforesaid precincts differ from the pencraft
of those who prepared the election returns;

C. In the aforesaid election returns, the votes of Belac were drastically and
obviously increased as can be gleaned from the fact that Belac garnered almost
100% of the registered voters in said precincts;

D. That in order to determine the true will of the electorate[s], a RECOUNT of the
votes must be ordered.

Respondent Diasens petition pertains to a pre-proclamation

controversy. Specifically, it alleges that the votes for petitioner Belac were all padded
through Operation Dagdag; the election returns for him (Diasen) was tampered,
falsified and manufactured; and that the election returns were already prepared even
before the counting of votes. He thus prays that the votes must be recounted.
Diasen did not say that the alleged irregularities appear on the face of the election
returns. Obviously, they came from external sources and, therefore, not manifest on
the election returns.
In fact, even the Certificates of Canvass and Statements of Votes for Pinukpuk and
Tinglayan were in order.
The Provincial Board of Canvassers explained that it refused to exclude the
Certificate of Canvass of Tinglayan because it was regular on its face and the grounds
raised by respondent Diasen are not among those in the list enumerated by
law. Nothing therein shows it was manufactured or prepared under duress, threat or
intimidation or that it was tampered or falsified.
As to the Statement of Votes for Tinglayan, the reason why some election returns
were not canvassed was because of ballot snatching in some areas. The
incompleteness of the Statement of Votes, therefore, did not vitiate the Certificate of
Canvass.
With respect to the Certificate of Canvass and Statement of Votes for Pinukpuk,
the Board checked the entries therein of the election returns in the presence of the
parties representatives.Having found there were some Dagdag for Belac, the Board
required the correction of the Statement of Votes and the Certificate of Canvass basing
the correction on the figures in the election returns, pursuant to the General
Instructions for Boards of Canvassers. It was only after the proper correction was
made that the Board included the Certificate of Canvass in the provincial canvass.
In Matalam vs. COMELEC,[4] this Court held that in a pre-proclamation
controversy, the COMELEC, as a rule, is restricted to an examination of the election
returns and is without jurisdiction to go beyond or behind them and investigate
election irregularities. Indeed, in the case of Loong vs. COMELEC,[5] the Court,
through Mr. Justice Regino Hermosisima, Jr., declared that the prevailing doctrine in
this jurisdiction xxx is that as long as the returns appear to be authentic and duly
accomplished on their face, the Board of Canvassers cannot look beyond or behind
them to verify allegations of irregularities in the casting or the counting of the votes.
Loong cited the earlier ruling of the Court in Dipatuan vs. COMELEC[6] and held:
The policy consideration underlying the delimitation both of substantive ground and
procedure is the policy to determine as quickly as possible the result of the election on
the basis of the canvass. Thus, in the case of Dipatuan vs. Commission on Elections,
we categorically ruled that in a pre-proclamation controversy, COMELEC is not to
look beyond or behind election returns which are on their face regular and authentic
returns. A party seeking to raise issues resolution of which would, compel or
necessitate COMELEC to pierce the veil of election returns which appear prima
facie regular on their face, has his proper remedy in a regular election protest. By their
very nature, and given the obvious public interest in the speedy determination of the
results of elections, pre-proclamation controversies are to be resolved in summary
proceedings without the need to present evidence aliunde and certainly without
having to go through voluminous documents and subjecting them to meticulous
technical examinations which take up considerable time.
The above ruling was reiterated in the more recent case of June Genevieve R.
Sebastian, et al. vs. COMELEC, et al.,[7] this Court stressing that it sees no reason to
depart from this rule.
In granting respondent Diasens motion for reconsideration of the Resolution of its
First Division, the COMELEC ruled:

Based on evidence on record, there were serious irregularities, tampering, and

falsification of the questioned returns in the said contested precincts in the
municipalities of Tingalayan and Pinukpuk, Kalinga province. On these factual
findings, We find for their exclusion from canvass, albeit in a pre-proclamation
proceedings.

xxx

Upon a re-examination and comparison of the copies for this Commission and for the
LAMMP, We find that the same were prepared by a few select persons, assembled in a
particular place, and pressured by circumstances attendant during elections. There is
a striking likeness and uniformity of the handwriting found in the questioned election
returns from the different precincts in the two aforementioned municipalities. We are
in awe on the evident likeness of strokes in the handwriting in the entries in the
election returns, despite the geographic distance of the two municipalities. There is no
inescapable conclusionary finding that could be made other than to declare that the
contested election returns as manufactured, and therefore, could not be a basis for a
valid Certificates of Canvass and Statement of Votes. (Italics supplied).

In concluding that there were serious irregularities, tampering and falsification of

the questioned election returns; and that they were manufactured, respondent
COMELEC looked beyond the face of the documents, hence, exceeding its authority,
contrary to the mandate of Loong, reiterated in Matalam and Sebastian.
We thus hold that respondent COMELEC committed grave abuse of discretion
when it granted respondent Diasens motion for reconsideration.
 At this point, counsel for respondent Diasen must remember that he should have
determined carefully the proper legal remedy or recourse for his client, such as an
election protest. Needless to state, a procedural flaw, as in this case, causes prejudice
to the litigants and impairs the proper administration of justice.
We now come on the peripheral issue regarding the votes of Commissioners
Gorospe and Guiani in the February 22, 2000 Resolution. They had retired when they
participated in the promulgation of the said Resolution.
In Jamil vs. COMELEC,[8] this Court ruled:

x x x A decision becomes binding only after it is validly promulgated. Consequently,

if at the time of the promulgation of a decision or resolution, a judge or a member of
the collegiate court who had earlier signed or registered his vote, has vacated his
office, his vote is automatically withdrawn or cancelled.

The reason for the rule, which is logically applicable to decisions of constitutional
commissions and administrative bodies or agencies, is cogently expressed in the case
of Consolidated Bank and Trust Corporation v. Intermediate Appellate Court:

xxx

'A decision becomes binding only after it is validly promulgated and not before. As
we said only recently in In re Emiliano Jurado, a decision or resolution of the Court
becomes such, for all legal intents and purposes, only from the moment of its
promulgation. According to Chief Justice Moran in the landmark case of Araneta v.
Dinglasan:

Accordingly, one who is no longer a member of this court at the time a decision is
signed and promulgated, cannot validly take part in that decision. As above indicated,
the true decision of the Court is the decision signed by the Justices and duly
promulgated. Before that decision is so signed and promulgated, there is no decision
of the Court to speak of. The vote cast by a member of the Court after the deliberation
is always understood to be subject to confirmation at the time he has to sign the
decision that is to be promulgated. The vote is of no value if it is not thus confirmed
by the Justice casting it. The purpose of this practice is apparent. Members of this
Court, even after they have cast their votes, wish to preserve their freedom of action
till the last moment when they have to sign the decision, so that they may take full
advantage of what they may believe to be the best fruit of their most mature reflection
and deliberation. In consonance with this practice, before a decision is signed and
promulgated, all opinions and conclusions stated during and after the deliberation of
the Court, remain in the breasts of the Justices, binding upon no one, not even upon
the Justices themselves. Of course, they may serve for determining what the opinion
of the majority provisionally is and for designating a member to prepare the decision
of the Court, but in no way is that decision binding unless and until signed and
promulgated.

We add that at any time before promulgation, the ponencia may be changed by
the ponente. Indeed, if any member of the court who may have already signed it so
desires, he may still withdraw his concurrence and register a qualification or dissent as
long as the decision has not yet been promulgated. A promulgation signifies that on
the date it was made the judge or judges who signed the decision continued to support
it.

If at the time of the promulgation, a judge or a member of a collegiate court has

already vacated his office, his vote is automatically withdrawn. x x x

The rule has not been modified. In fact in the recently decided case of Ruperto A.
Ambil, Jr. vs. COMELEC,[9] this Court passed upon a resolution written by
Commissioner Guiani himself, holding that the said resolution is null and void ab
initio because:

A final decision or resolution becomes binding only after it is promulgated and not
before. Accordingly, one who is no longer a member of the Commission at the time
the final decision or resolution is promulgated cannot validly take part in that
resolution or decision. Much more could he be the ponente of the resolution or
decision. The resolution or decision [of the Division] must be signed by a majority of
its members and duly promulgated.

Upon their retirement, Commissioners Gorospe and Guiani had been stripped of
all authority to participate in the promulgation of the February 22, 2000
Resolution. Pursuant to Section 6 of the COMELEC Rules of Procedure, earlier
quoted, the Resolution dated June 4, 1998 of the First Division is therefore
deemed affirmed as the votes of Commissioners Gorospe and Guiani are considered
cancelled.
Indeed, there was initially no evenly divided vote in the February 22, 2000
Resolution that should have merited a rehearing or the issuance of the challenged
Resolution dated November 16, 2000 by the new members of respondent COMELEC.
On petitioners contention that there was a long and deliberate delay on the part of
public respondent COMELEC as previously stated, respondent Diasens motion for
reconsideration of the Resolution of the COMELEC First Division was filed with
respondent COMELEC en banc on June 19, 1998. However, it was only on February
22, 2000, or after almost two (2) years, when the motion was resolved. In view of the
equally divided voting, a rehearing was ordered. The parties merely submitted
memoranda. Yet, it was only on November 16, 2000, or after almost nine (9) months
from February 22, 2000, when respondent COMELEC finally promulgated the other
challenged Resolution dated November 16, 2000.
Pre-proclamation controversies are mandated by law to be summarily disposed of.
[10]

Here, the COMELEC failed to comply with this mandate. Let it be reminded that
pre-proclamation controversies, by their very nature, are to be resolved in summary
proceedings which obviously should be disposed of without any unnecessary delay.
WHEREFORE, the petition is hereby given due course and is GRANTED. The
challenged Resolutions dated February 22, 2000 and November 16, 2000 of
respondent COMELEC en bancare SET ASIDE, while the Resolution of the
COMELEC (First Division) dated June 4, 1998 is AFFIRMED. Respondent
COMELEC is directed to forthwith conduct the proclamation of petitioner Dominador
Belac in accordance with law.
SO ORDERED.

[G.R. Nos. 139573-75. March 7, 2000]

JUNE GENEVIEVE R. SEBASTIAN, and DARIO ROMANO, petitioners, vs.

THE COMMISSION ON ELECTIONS, THE MUNICIPAL BOARD OF
CANVASSERS OF STO. TOMAS, DAVAO DEL NORTE (Jandelie B.
Espaola, Liza D. Baco, and Valentin Gador), SALVADOR ROYO, and ERIC
ESTELA, respondents.

DECISION

QUISUMBING, J.:

Before us is a petition for certiorari seeking the annulment of the Resolution

issued by respondent Commission on Elections, in SPC Nos. 98-129, 98-142,
and 98-169, on August 24, 1999, allowing the inclusion in the canvass of
votes in Sto. Tomas, Davao del Norte, of 25 election returns which petitioners
claimed to have been prepared through threats and undue influence. Said
resolution reversed an earlier resolution of the COMELEC Second Division
excluding the questioned election returns from the canvass of votes.
Petitioners likewise seek the issuance of a temporary restraining order to
enjoin the Municipal Board of Canvassers of Sto. Tomas from continuing with
the canvassing of votes and including therein the contested election returns.

The antecedent facts are as follows:

Petitioner June Genevieve Sebastian was the mayoralty candidate of the
Reporma Party in Sto. Tomas, Davao del Norte, during the May 11, 1998
elections. Petitioner Dario Romano was her running mate. Private respondent
Salvador Royo was the mayoralty candidate of the Lakas-NUCD-UMDP, while
private respondent Eric Estela was his candidate for vice mayor.

On election day, as the Municipal Board of Canvassers was preparing to

canvass the election returns, petitioners sought the exclusion from the
canvass of several election returns from certain precincts in barangays
Kimamon, New Katipunan, Lunga-og, Balagunan, Pantaron, and Tibal-og.
Petitioners claimed that the election returns from these areas were prepared
[1]

under "extreme duress, threat, intimidation and political pressure and

influence." Petitioners also manifested that four election returns were
[2]

missing.

The Municipal Board of Canvassers denied the petition, prompting petitioners

to file three separate appeals with the COMELEC, docketed as SPC No. 98-
129, SPC No. 98-142, and SPC No. 98-169.

The COMELEC First Division dismissed the appeal docketed as SPC No. 98-
129 on July 15, 1998. No motion for reconsideration was filed by petitioners
as appellants therein, thus, the dismissal became final and executory on July
30, 1998.[3]

Meanwhile, the COMELEC Second Division, ruling on the remaining

consolidated appeals in a decision promulgated on August 14, 1998, ruled in
favor of petitioners and ordered the exclusion of 25 election returns from the
canvass of votes in Sto. Tomas.

On August 18, 1998, private respondent Royo filed a motion for

reconsideration of said resolution. The COMELEC en banc, as earlier stated,
reversed the ruling of the COMELEC Second Division.

Hence, this petition, in which petitioners assign the following errors:

THE HONORABLE COMMISSION COMMITTED GRAVE ABUSE

OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT DISREGARDED THE DOCTRINE
ENUNCIATED BY THE HONORABLE SUPREME COURT IN
THE LEADING CASE OF ANTONIO vs. COMELEC, G.R. NO. L-
31604, APRIL 17, 1970 IN THE DISPOSITION OF THE INSTANT
CASE;
 THE HONORABLE COMMISSION ON ELECTIONS
COMMITTED A GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION WHEN IT
UNILATERALLY DISREGARDED THE OVERWHELMING
EVIDENCE OF COERCION, UNDUE INFLUENCE, EXTREME
PRESSURE, THREAT, INTIMIDATION AS WELL AS ALL THE
ENVIRONMENTAL CIRCUMSTANCES THAT ATTENDED THE
PREPARATION, TRANSMISSION, RECEIPT, CUSTODY AND
APPRECIATION OF THE TWENTY-FIVE CONTESTED
RETURNS. [4]

Petitioners concede that, when the election returns appear to be regular,

authentic, and duly accomplished on their face, the COMELEC need not
inquire into allegations of irregularities in the casting or counting of votes.
However, petitioners question the COMELECs alleged failure to consider
[5]

what they claim to be evidence of undue influence, extreme pressure, threat,

and coercion that attended the preparation, transmission, custody and
appreciation by the Board of Election Inspectors of the contested election
returns. These, according to petitioners, affected the regularity, due execution,
and authenticity of the election returns.
[6]

Petitioners also fault the COMELEC for not taking into account the
atmosphere prevailing during the elections at Sto. Tomas, which they claim to
be similar to the circumstances obtaining in the case of Antonio v. COMELEC,
(32 SCRA 319 [1970]). In that case, returns prepared by election inspectors
under threats from armed men were excluded from the canvass of votes in
Batanes.

For its part, the COMELEC pointed out that it could not justifiably exclude from
the canvass of votes, in a pre-proclamation controversy, election returns that
on their face appear regular. A pre-proclamation controversy is limited to the
examination of incomplete, falsified, or materially defective returns, which
appear as such on their face. Where the issues raised would require the
COMELEC to look beyond the face of the return, the proper remedy is a
regular election protest.
[7]

It is worth noting that petitioners do not claim that the returns themselves are
not regular, genuine or authentic. Petitioners admit that the alleged fraud,
deceit, and intimidation came from external sources, and, therefore, not
manifest on the face of the returns. The alleged fraudulent scheme was
designed, according to petitioners, precisely to avoid detection on the face of
the returns.
[8]
What petitioners assert is that the preparation of the returns had been marred
by undue influence and intimidation, thus affecting their regularity, due
execution and authenticity. Petitioners argue that this justifies the examination
of circumstances beyond the face of the returns.

We find this argument untenable.

This petition stemmed from a pre-proclamation controversy. In a long line of

cases, we have consistently held that a pre-proclamation controversy is
limited to an examination of the election returns on their face. The COMELEC
[9]

as a general rule need not go beyond the face of the returns and investigate
alleged election irregularities. We see no reason to depart from this rule in
[10]

this petition. In our view, there is no exceptional circumstance present in this

controversy similar to that proved in the Antonio case, aforecited, where the
COMELEC as well as the Court found "precipitate canvassing, terrorism, lack
of sufficient notice to the Board, and disregard of manifest irregularities in the
face of the questioned returns" to justify the summary annulment of the
[11]

canvass and the annulment of petitioner Antonios proclamation. Rather, we

are guided here by the holding of the Court in the case of Matalam, in
Maguindanao, where it is said:

"...Because what [petitioner] is asking for necessarily postulates a

full reception of evidence aliunde and the meticulous examination
of voluminous election documents, it is clearly anathema to a pre-
proclamation controversy which, by its very nature, is to be heard
summarily and decided on as promptly as possible." [12]

To require the COMELEC to examine the circumstances surrounding the

preparation of election returns would run counter to the rule that a pre-
proclamation controversy should be summarily decided. [13]

In Sison v. COMELEC, we ruled that:

[14]

"The reason underlying the delimination both of substantive

ground and procedure is the policy of the election law that pre-
proclamation controversies should be summarily decided,
consistent with the laws desire that the canvass and proclamation
be delayed as little as possible. That is why such questions which
require more deliberate and necessarily longer consideration, are
left for examination in the corresponding election protest."
Where the resolution of the issues raised would require the COMELEC to
"pierce the veil" of election returns that appear prima facie regular, the remedy
is a regular election protest, [15]

"...wherein the parties may litigate all the legal and factual issues
raised by them in as much detail as they may deem necessary or
appropriate."[16]

Here, we note favorably the position taken by the Office of the Solicitor
General. Petitioners have not demonstrated precisely how the preparation and
appreciation of election returns were adversely affected by, as alleged by
petitioners, "harassments of petitioners supporters," "midnight convoys of
armed men riding in motorcycles," and "raids by the military in different
houses" in Sto. Tomas. We are constrained to agree with the OSGs
submission that on the basis of our holding in Salih v. COMELEC, 279 SCRA
19, respondent COMELEC herein "could not justifiably exclude said returns on
the occasion of a pre-proclamation controversy whose office is limited to
incomplete, falsified or materially defective returns which appear as such on
their face."
[17]

Nor could we fault public respondents herein for grave abuse of discretion in
refusing petitioners call to exclude election returns they claim as the product
of coercion and falsification, even if they appear clean on their face. For
respondent COMELEC had conducted hearings on the matter, where
petitioners and other parties concerned had submitted affidavits and
presented witnesses. The COMELEC found, however, that the evidence
presented by petitioners failed to prove convincingly that the assailed returns
were tainted by duress. Contrary to petitioners claim, NAMFREL volunteers
and the Poll Watchers in the area attested that the election activities therein
were generally peaceful. Even the Board of Election Inspectors themselves
swore nobody threatened or coerced them in the performance of their duties,
and that the elections in their area were peaceful, honest and orderly. Given
these factual circumstances, which could not be deemed evidently self-
serving on its part, respondent COMELEC could not have prudently and fairly
excluded the assailed returns. The better part of discretion in so delicate a
matter is to await the filing of the appropriate action, like a regular election
protest, if the petitioners were so minded to pursue the proper remedy, rather
than delay the determination of the popular will.

WHEREFORE, the petition is DISMISSED, and the resolution of the

COMELEC en banc in SPC No. 98-129, SPC No. 98-142, and SPC No. 98-
169 is hereby AFFIRMED.
SO ORDERED.

NANCY SORIANO BANDALA, petitioner, vs. COMMISSION ON

ELECTIONS, NEW BOARD OF CANVASSERS FOR OROQUIETA CITY
and ALEJANDRO G. BERENGUEL, respondents. [G.R. No. 159369.
March 3, 2004]

DECISION
SANDOVAL-GUTIERREZ, J.:

Election cases involve not only the adjudication of the private interests of rival
candidates, but also the paramount need of dispelling the uncertainty which beclouds
the real choice of the electorate with respect to whom shall discharge the prerogatives
of the offices within their gift.
[1]

Thus, election cases are imbued with public interest. Laws governing election contests
must be liberally construed to the end that the will of the people in the choice of
public officials may not be defeated by mere technical objections. [2]

Before us is a petition for certiorari under Rule 65 of the 1997 Rules of

Civil Procedure, as amended, assailing the Resolution dated August 14, 2003
[3]

rendered by the Commission on Elections En Banc in SPC No. 01-277,

entitled Alejandro G. Berenguel, Candidate for City Mayor, Oroquieta City vs.
Board of Canvassers, Oroquieta City and Nancy Soriano Bandala, Candidate
for City Mayor, Oroquieta City.
The antecedents of the present petition are as follows:
Nancy Soriano Bandala, herein petitioner, and Alejandro G. Berenguel,
herein respondent, were mayoralty candidates in Oroquieta City, Misamis
Occidental during the May 14, 2001 national and local elections.
During the canvass of the election returns conducted by the City Board of
Canvassers of Oroquieta City, respondent objected to the inclusion of eighty
(80) election returns on the following grounds: (1) that seventy-one (71)
election returns were not secured with inner paper seals; (2) that seven (7)
election returns do not indicate the party affiliation of the watchers-signatories;
and (3) that two (2) election returns have missing pages which contain the list
of the local city candidates.
 In an Omnibus Ruling dated May 19, 2001, the City Board of Canvassers
overturned the objection of respondent and included in its canvass the
contested election returns.
On June 30, 2001, petitioner was proclaimed the duly elected mayor of
Oroquieta City.
Upon appeal, the Second Division of the Commission on Elections
(COMELEC) issued a Resolution dated September 5, 2002 affirming the
Omnibus Ruling of the City Board of Canvassers, holding that:

Lack of inner seal of an election return does not necessarily mean that the same is
spurious and/or was tampered with. Such tampering, or its being spurious must appear
on the face of the election return itself. It is the ministerial function of the board of
canvassers to count the results as they appear in the returns which on their face do not
reveal any irregularities or falsities. [Cf. Balindong vs. Commission on Elections, 27
SCRA 567]

In the canvassing of election returns, the Board of Canvassers, which is an ad

hoc body, need not look beyond or behind the returns or do an act which would
necessitate the piercing of the returns and the presentation of evidence aliunde. [Cf.
Usman vs. Commission on Elections, 42 SCRA 667]

Significantly, we observe that what the petitioner has presented were just affidavits
mostly executed by his supporters, the nature of which has been ruled by the Supreme
Court as self-serving. [Casimiro vs. COMELEC, 170 SCRA 627] We cannot just rely
on this kind of evidence because what is at stake is the paramount interest of the
electorate.

Finally, our General Instructions for the Board of Election Inspectors (BEI)
[COMELEC Resolution No. 3742] does not require the indication by the poll
watchers of their respective political party/candidate being represented. What the rule
instructs is this:

SEC. 45. Preparation of election returns and tally board. The boards shall prepare in
their own handwriting the election returns and tally board simultaneously with the
counting of votes in their respective polling places. The election returns shall be
prepared in seven (7) copies. x x x

After all the ballots have been read:

a) x x x
d) The watchers if any, shall affix their signatures and imprint their thumb marks on
the right hand portion of the election returns and the tally board; and

xxx

Clearly, nothing in the afore-quoted rule requires the poll watcher to indicate the
party/candidate he represents.[4]

Respondent then filed with the COMELEC en banc a motion for

reconsideration.
On August 14, 2003, the COMELEC en banc promulgated a Resolution
reversing and setting aside the Second Divisions Resolution. The dispositive
portion of which reads:

ACCORDINGLY, the Commission en banc hereby renders judgment to:

1. EXCLUDE the one hundred one (101) election returns found without the inner
paper seals enumerated in the Canvassing Report of the City Board of
Canvassers of Oroquieta City dated 24 May 2001, from the canvass;

2. NULLIFY the proclamation of Oppositor Nancy Soriano Bandala made on 30

June 2001;

3. CONSTITUTE a New City Board of Canvassers for Oroquieta City composed

of Atty. Nelia Aureus as Chairman; Atty. Allen Francis Abaya as Vice-
Chairman; and, Atty. Norina Tangaro as member-Secretary;

4. DIRECT the City Election Officer of Oroquieta City to BRING to the

Commission at Manila all the election returns and other election documents
subject of and pertaining to the canvass made by the Board and TURN-OVER
the same under receipt to the New City Board of Canvassers for Oroquieta
City; and,

5. DIRECT the New City Board of Canvassers for Oroquieta City to CONVENE
with notice to the parties, upon finality of this Resolution, CANVASS the
election returns and, thereafter, PROCLAIM the winning candidate for Mayor
of Oroquieta City.

6. The aforenamed BEIs, with the exception of the BEI of Precinct No. 134A of
Barangay Dolipos Alto, composed of Catalina J. Bajade as Chairman, Emma
J. Aganos as Poll Clerk, and Rosenda P. Baloncio as Third Member and the
Chairperson, Margie B. Lamparas of the BEI of Precinct No. 145A1 of
 Barangay Upper Lamac, are recommended to be charged administratively
before the Department of Education.

7. Atty. Francisco G. Pobe is hereby suspended from Office with forfeiture of

salary from the promulgation of this resolution until after the lections of 10
May 2004 with stern warning that repetition of the same or similar offense
will be dealt with more severely.

8. The Law Department, this Commission, is hereby DIRECTED to file the

appertaining information for violation of Section Z (15) and (21), and Section
212, both of the Omnibus Election Code (Batas Pambansa Blg. 881) against
these BEIs and Mr. Filoteo C. Alngohuro, Chairman of the City Board of
Canvassers of Oroquieta City, there being strong prima facie case against
them.

SO ORDERED.

Hence, this petition for certiorari with prayer for issuance of a temporary
restraining order and/or writ of preliminary injunction. On August 27, 2003, we
issued a status quo ante order.
Petitioner contends that the COMELEC en banc acted with grave abuse of
discretion (1) in excluding 101 election returns based on a formal defect of
lack of inner paper seals in the election returns; and (2) in nullifying her
proclamation as the winning candidate for mayor of Oroquieta City.
The petition is impressed with merit.
I

May the ground of lack of inner paper seals in the election returns be considered a
proper issue in a pre-proclamation controversy?

There is a need to emphasize the definition of a pre-proclamation

controversy under Section 241 of the Omnibus Election Code, thus:

SEC. 241. Definition. - A pre-proclamation controversy refers to any question

pertaining to or affecting the proceedings of the board of canvassers which may
be raised by any candidate or by any registered political party or coalition of political
parties before the board or directly with the Commission, or any matter raised under
Sections 233, 234, 235 and 236 in relation to the preparation, transmission,
receipt, custody and appreciation of the election returns.
 The issues that may be raised in a pre-proclamation controversy are
enumerated in Section 243 of the same Code, thus:

SEC. 243. Issues that may be raised in pre-proclamation controversy. - The following
shall be proper issues that may be raised in a pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to
be tampered with or falsified, or contain discrepancies in the same returns or in other
authentic copies thereof as mentioned in Section 233, 234, 235 and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion, or intimidation,
or they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were

canvassed, the results of which materially affected the standing of the aggrieved
candidate or candidates.

There being no inner paper seals pasted on 101 election returns coming
from numerous polling precincts, the COMELEC en banc then concluded that
the election returns in question appear to be obviously falsified and/or
manufactured, the results of which certainly affected the standing of
respondent. According to the COMELEC en banc, this is an issue (under Sec.
243 (b) in the enumeration) that may be raised in a pre-proclamation
controversy.
The lack of inner paper seals in the election returns does not justify their
exclusion from the canvassing. Indeed, it is not a proper subject of a pre-
proclamation controversy.
In the Matter of the Petition to Exclude Election Returns contained in Nine
(9) Ballot Boxes, Amelita S. Navarro vs. Commission on Election, we held:[5]

"While the aforesaid grounds (lack of inner and outer paper seals and lack of
signatures of watchers, among others) may, indeed, involve a violation of the rules
governing the preparation and delivery of election returns for canvassing, they do not
necessarily affect the authenticity and genuineness of the subject election returns
as to warrant their exclusion from the canvassing. The grounds for objection to
the election returns made by petitioners are clearly defects in form insufficient to
support a conclusion that the election returns were tampered with or spurious."

Likewise, in Baterina vs. COMELEC, we ruled:

[6]
The grounds raised by petitioners for the exclusion of the election returns from the
canvassing, as stated in their Appeal Memorandum before the COMELEC x x x refer
to the failure to close the entries with the signatures of the election inspectors; lack of
inner and out papers seals; canvassing by the BOARD of copies not intended for it;
lack of time and date of petitioners watchers; and lack of authority of person receiving
the election returns.

While the aforesaid grounds may, indeed, involve a violation of the rules governing
the preparation and delivery of election returns for canvassing, they do not
necessarily affect the authenticity and genuineness of the subject election returns
as to warrant their exclusion from canvassing. The grounds for objection to the
election returns made by petitioners are clearly defects in form insufficient to support
a conclusion that the election returns were tampered with or spurious. x x x. On the
basis of formal defects alone, such palpable irregularity cannot be said to have been
established herein.

II

May the COMELEC look beyond the election returns and receive evidence aliunde
in a pre-proclamation controversy?

Assuming that the ground of lack of inner paper seals in election returns is
a proper issue in a pre-proclamation controversy, the COMELEC cannot
investigate and receive evidence to determine why those inner paper seals
are missing.
A pre-proclamation controversy is limited to an examination of the
election returns on their face and the COMELEC as a general rule need
not go beyond the face of the returns and investigate the alleged
election irregularities. [7]

In Matalam vs. Commission on Elections, we stressed that in a pre-

[8]

proclamation controversy, the COMELEC, as a rule, is restricted to an

examination of the election returns and is without jurisdiction to go beyond
or behind them and investigate election irregularities.
Thus, the COMELEC acted beyond its jurisdiction when it directed the
Provincial Election Supervisor of Misamis Occidental to investigate and
receive evidence to determine once and for all the mystery behind the
missing inner paper seal of the subject election returns or the failure of
the Board of Election Inspectors (BEIs) to paste the inner seals of the election
returns.
III
Did the COMELEC commit grave abuse in discretion in nullifying the
proclamation of petitioner as mayor of Oroquieta City?

In its assailed Resolution, the COMELEC en banc held that the City Board
of Canvassers acted without authority when it arbitrarily proclaimed petitioner
herein as the duly elected mayor of Oroquieta City, in gross violation of
Section 20 (i) of Republic Act 7166 which reads:

"Section 20. Procedure in Disposition of Contested Election Returns. -

xxx

(i) The board of canvassers shall not proclaim any candidate as winner unless
authorized by the Commission after the latter has ruled on the objections brought to it
on appeal by the losing party. Any proclamation in violation hereof shall be void ab
initio, unless the contested returns will not adversely affect the results of the
election."

Suffice it to state that the above provision applies only where the objection
deals with a pre-proclamation controversy, not where, as in the present case,
it raises or deals with no such controversy. It bears reiterating that the lack of
[9]

inner paper seals in the election returns is not a proper subject of a pre-
proclamation controversy. Respondents recourse should have been to file an
election protest. Where a party raises issues, the resolution of which would
compel the COMELEC to pierce the veil of election returns which
appear prima facie regular on their face, his proper remedy is an election
protest. In this proceeding, the parties may litigate all the legal and factual
issues raised by them in as much detail as they may deem necessary or
appropriate. [10]

WHEREFORE, the petition is GRANTED. The challenged Resolution

dated August 14, 2003 of the COMELEC en banc in SPC No. 01-277 is
REVERSED and SET ASIDE. The Resolution dated September 5, 2002 of the
COMELEC Second Division is AFFIRMED.
SO ORDERED.

[G.R. No. 136282. February 15, 2000]

FRANCISCO D. OCAMPO, petitioner, vs. COMMISSION ON ELECTIONS,

MUNICIPAL BOARD OF CANVASSERS OF STA. RITA, PAMPANGA and
ARTHUR L. SALALILA, respondents.
 [G.R. No. 137470. February 15, 2000]

FRANCISCO D. OCAMPO, petitioner, vs. ARTHUR L.

SALALILA, respondent.

DECISION

KAPUNAN, J.:

The case before us hinges on the question of whether or not to include in the
canvass the contested election returns.

The facts are as follows:

Francisco D. Ocampo and Arthur L. Salalila were candidates for Mayor in the
Municipality of Sta. Rita, Province of Pampanga during the May 11, 1998
elections. There were 78 precincts in said municipality. During the canvassing
of the election returns which started on May 12, 1998 and ended on May 14,
1998 petitioner moved for the exclusion of the election returns in 8 precincts
from Barangay Basilia considering that the turnout of votes was allegedly
lopsided against his favor. The results were as follows: Ky-le

Precinct No.........................VOTES RECEIVED BY

.....................................OCAMPO............SALALILA

1. 88-A-1..............................0......................165

2. 89-A-1..............................0......................104

3. 90-A & 90-A-1..................3......................192

4. 92-A.................................0......................152

5. 93-A & 94-A.....................7......................236

6. 99-A & 100-A...................7......................205

7. 104-A...............................5......................155

8. 105-A...............................3......................115 [1]

..........................................------.................------
 ..........................................25 votes................1,324 votes

The grounds for the exclusion of the election returns in the aforementioned
precincts were: i.e: (1) that the same were obviously manufactured; (2) they
were defective for they contained no data on the number of registered votes in
the precinct, actual number of votes cast and the number of valid votes cast;
and (3) other alleged discrepancies in the data on votes cast and total number
of registered voters and excess ballots. [2]

Finding the contested election returns to be genuine and authentic and

without merit, the Municipal Board of Canvassers (MBC) ruled to order the
inclusion in the canvass of the contested election returns. [3]

On May 16, 1998, petitioner went to see the Chairman of the MBC at his office
to file his Notice of Appeal. Since the latter was not present, petitioner instead
filed said notice with Board Members Nelia Salvador and Diosdado L. Amio
who, however, refused to accept the same in line with the Boards earlier ruling
not to receive anymore the Notice of Appeal. Upon request, a Certification to
that effect was issued by Nelia Salvador and Disodado Amio on the same
date. [4]

On May 18, 1998, petitioner went to the COMELEC and filed a formal appeal.
This was docketed as SPC No. 98-056. On June 29, 1998, the COMELEC
[5]

Second Division, rendered a Resolution stating the following: E-xsm

xxx

Respondent MBC should have at least suspended its canvass in

so far as the question or contested election returns were
concerned. x x x x

In precinct 88-A-1 the election return is lacking in material data as

there were no entries as to the number of registered voters in the
precinct, the actual number of votes cast and the number of valid
votes cast. In such a situation it is incumbent upon the MBC to
call the members of the Board of Election Inspectors (BEI) to
complete the data which failed to do so.

In precinct 89-A-1 there was a discrepancy in the figure of the

total number of valid votes cast and the number of votes received
by private respondent Salalila. Moreover, two (2) member (sic) of
the BEI did not affixed (sic) their thumbmark in the questioned
election returns rendering their authenticity doubtful. There is
material discrepancy in the election return as it is (sic) states
therein that there were 197 voters who actually voted. And also it
was also stated therein that there were 22 excess ballots and
therefore the number of voters who actually voted will be 219 in
excess of the 215 total number of registered voters for the
precinct.

In precincts 92-A the return states that there were 153 voters who
actually voted and private respondent Salalila received 152 votes
while petitioner got zero (0), one (1) vote therefore is clearly
missing.

In 93-A and 94-A there were an excess of the number of voters

who actually voted. The election returns shows that there were
245 voters who actually voted yet there were 27 excess ballots
found in the ballot box, but the number of voters in the precinct is
only 272, meaning there was a one hundred per cent (100%) turn-
out of voters for those precinct but the election return states that
there were only 245 who actually voted.

In precinct 99-A, 100-A and 104-A there were also no entries on

the data of voters and ballots. Again the MBC should have at least
called the members of the BEI to complete the data in the election
return and explain why they failed to do the same. Me-sm

In precinct 105-A it is obvious that there were discrepancies in the

material data in that the total number of registered voters in the
precinct is 141 while the total number accordingly of the voters
who actually voted is 121 but found out inside the ballot box were
144 valid ballots which obviously in excess of three (3) from the
total number of the registered voters for the precinct.

But more than the above findings what is significant is that in

Precincts 93-A and 94-A there were erasures in the election return
which accordingly was made to reflect the correct votes received
by petitioner and private respondent. According to the Chairman
of BEI, private respondent received 96 votes while, petitioner
received 4 votes instead of 97 yet the election returns states that
petitioner received only three votes instead of four as claimed but
(sic) the Chairman of the BEI. Such erasures manifest (sic) on the
 election return puts the authenticity of the same in issue and
should have been excluded in the canvass.

While it is true that the Board of Canvassers is essentially a

ministerial body and has no power to pass upon questions of
whether there are illegal voters or other election frauds. (Dizon v.
Provincial Board, 52 Phil 47; Sangki v. Comelec, 21 SCRA 1392),
it is also true that in case of patent irregularity in the election
returns, such as patent erasures and super-impositions in words
and figures on the face of the returns submitted to the board, it is
imperative for the board to stop the canvass of such returns so as
to allow time for verification. A canvass and proclamation made
withstanding such patent defects in the returns which may affect
the result of the election, without awaiting remedies, is null and
void. (Purisima v. Salonga, 15 SCRA 704).

WHEREFORE, the Commission (Second Division) resolves

to GIVE DUE COURSE to the appeal and the eight (8) contested
election returns are hereby ordered excluded from the canvass for
the position of the municipal mayor of Sta. Rita, Pampanga.

The proclamation made by respondent MBC on May 14, 1998

proclaiming private respondent as duly elected Mayor of
Municipality of Sta. Rita, Pampanga is hereby SUSPENDED. S-l-x

Respondent MBC is hereby directed to reconvene and issue a

new certificate of canvass of votes excluding the election returns
subject of this appeal and on the basis of which proclaim the
winning candidate for Mayor of the Municipality of Sta. Rita,
Pampanga.

SO ORDERED. [6]

On July 3, 1998, private respondent Salalila filed a motion for reconsideration.

[7]

On November 19, 1998, the COMELEC en banc promulgated the questioned

Resolution reversing the findings of the Comelec Second Division. The
decretal portion of which states:

WHEREFORE, in view of the foregoing,

the Resolution promulgated by this Commission (Second Division)
 on 29 June 1998 is hereby reversed and set aside. The
suspension of the effects of the proclamation of the
respondent/appellee, ARTHUR L. SALALILA, is hereby lifted. His
proclamation as MAYOR of the municipality of Sta. Rita,
Pampanga on 14 May 1998 is hereby confirmed.

SO ORDERED. [8]

Hence, petitioner Ocampo filed the iinstant petition citing the grave abuse of
discretion committed by the COMELEC en banc in reversing the findings of
the COMELEC Second Division. A temporary restraining order was also
prayed for to enjoin the effects of private respondents Salalilas proclamation
as municipal mayor.

On December 15, 1998, this Court issued a Temporary Restraining Order

directing the COMELEC to cease and desist from enforcing its Resolution,
dated November 19, 1998 in SPC No. 98-056.

Meanwhile, on March 1, 1999, petitioner filed a separate petition before this

Court to cite private respondent Salalila for contempt. This was docketed as
G.R. No. 137470. In this petition, petitioner claimed that despite the issuance
of a Temporary Restraining Order by this Court on December 15, 1998 in G.R.
No. 136282, private respondent Salalila continued to act as the Mayor of Sta.
Rita, Pampanga. Es-mso

Petitioner would like to impress upon this Court that the returns in the subject
precincts (25 votes with zero 0 votes in three precincts, as against private
respondents Salalilas 1,333 votes) were statistically improbable considering
that he was a re-electionist and with assigned watchers therein. Although he
admits that the precincts were private respondent Salalilas bailiwick,
precedence dictates that every election document coming from a candidates
bailiwick must be carefully scrutinized.

Petitioner claims that the election returns did not contain data as required in
Section 212 of the Omnibus Election Code which reads:

The returns shall also show the date of the election, the polling
place, the barangay and the city or municipality in which it was
held, the total number of ballots found in the compartment for
valid ballots, the total number of valid ballots withdrawn from the
compartment for spoiled ballots because they were erroneously
placed therein, the total number of excess ballots, the total
 number of marked or void ballots, and the total number of votes
obtained by each candidate, writing out the said number in words
and figures and, at the end thereof, the board of election
inspectors shall certify that the contents are correct. The returns
shall be accomplished in a single sheet of paper, but if this is not
possible, additional sheets may be used which shall be prepared
in the same manner as the first sheet and likewise certified by the
board of election inspectors.

xxx

Petitioner further contends that these data on voters and ballots are just as
important as the data on votes credited to the candidate on the same election
returns. The absence such data without any explanation or correction on the
part of the Board of Election Inspectors who prepared those election
documents renders them invalid. Violations of Sections 234 and 235 relating
to material defects in the election returns and tampered or falsified election
returns are considered election offenses under Section 262 of the Omnibus
Election Code.[9]

The pertinent provisions read as follows: Sc-slx

Sec. 234. Material defects in the election returns.- If it should

clearly appear that some requisites in form or data had been
omitted in the election returns, the board of canvassers shall call
for all the members of the board of election inspectors concerned
by the most expeditious means, for the same board to effect the
correction. Provided, That in case of the omission in the election
returns of the name of any candidate and/or his corresponding
votes, the board of canvassers shall require the board of election
inspectors concerned to complete the necessary data in the
election returns and affix therein their initials: Provided, further,
That if the votes omitted in the returns cannot be ascertained by
other means except by recounting the ballots, the Commission,
after satisfying itself that the identity and integrity of the ballot box
have not been violated, shall order the board of election
inspectors to open the ballot box, and, also after satisfying itself
that the integrity of the ballots therein has been duly preserved,
order the board of election inspectors to count the votes for the
candidate whose votes have been omitted with notice thereof to
all candidates for the position involved and thereafter complete
the returns.
 The right of a candidate to avail of this provision shall not be lost
or affected by the fact that an election protest is subsequently filed
by any of the candidates.

Sec. 235. When election returns appear to be tampered with or

falsified. - If the election returns submitted to the board of
canvassers appear to be tampered with, altered or falsified after
they have left the hands of the board of election inspectors, or
otherwise not authentic, or were prepared by the board of election
inspectors, the board of canvassers shall use the other copies of
said election returns and, if necessary, the copy inside the ballot
box which upon previous authority given by the Commission may
be retrieved in accordance with Section 220 hereof. If the other
copies of the returns are likewise tampered with, altered, falsified,
not authentic, prepared under duress, force, intimidation, or
prepared by persons other than the members of the board of
election inspectors, the board of canvassers or any candidate
affected shall bring the matter to the attention of the Commission.
The Commission shall then, after giving notice to all candidates
concerned and after satisfying itself that nothing in the ballot box
indicate that its identity and integrity have been violated, order the
opening of the ballot box and, likewise after satisfying itself that
the integrity of the ballots therein has been duly preserved shall
order the board of election inspectors to recount the votes of the
candidates affected and prepare a new return which shall then be
used by the board of canvassers as basis of the canvass. (Sec.
173, 1978 EC). Sl-xsc

The petition must fail.

It must be borne in mind that we are persuaded strongly by the principle that
the findings of facts of administrative bodies charged with their specific field of
expertise, are afforded great weight by the courts, and in the absence of
substantial showing that such findings are made from an erroneous estimation
of the evidence presented, they are conclusive, and in the interest of stability
of the governmental structure, should not be disturbed. The COMELEC, as
[10]

an administrative agency and a specialized constitutional body charged with

the enforcement and administration of all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and recall, has more
than enough expertise in its field that its findings or conclusions are generally
respected and even given finality. We do not find the instant case an
[11]

exception to this avowed rule.

In order to allay any suspicion of gravely abusing its discretion, the COMELEC
made a careful examination of the contested election returns. "To check and
double check" if it were true that the contested election returns were tampered
with, altered or falsified, the COMELEC en banc examined two separate
copies of the election returns: (1) the copy for the Municipal Board of
Canvassers and (2) the COMELEC copy. Thus, the following findings were
made:

In the election returns for precinct 88-A-1, only formal defects are
present, there being no entries on the requisite data as to the
number of registered voters in the precinct, the actual number of
votes cast and the number of valid votes cast. However, the
number of votes credited to the petitioner and private respondent
and the taras therein do not contain any erasure or alteration as to
bring the number of votes obtained by the petitioner and private
respondent within the realm of controversy. We, therefore, rule
for the inclusion of the election returns for this precinct. Sl-
xm-is

The election returns for precinct 89-A-1 was ruled excluded by the
Second Division for several reasons. It was alleged (1) that there
is a discrepancy in the total number of valid votes cast and
number of votes received by private respondent Salalila; (2) that
two (2) members of the Board of election Inspectors did not affix
their thumb mark in the questioned election returns; and (3) that
the elections returns states that there were 197 voters who
actually voted while there were 22 excess ballots which means
that the number of voters who actually voted will be 219 in excess
of the 215 total number of registered voters in the precinct. An
examination of this election returns shows that all pages of the
election returns have been signed and thumb marked by the
chairman and members of the board of election inspectors except
on page 3 where the members did not thumb mark but the
chairman did and on page 4 where the chairman had no thumb
mark but the members did have. This is a mere oversight and it
did not vitiate the validity of the votes credited to each candidate
nor did it destroy the integrity of the election return. A perusal of
the election returns for the mayoral candidates shows that Salalila
got one hundred four (104) votes while petitioner/appellant
Ocampo received zero (0). The fact that private
respondent/appellee got almost all the votes cast in this precinct
is not necessarily proof of fraud for there is nothing in the returns
to show that it was tampered or altered. The election returns itself
reflects with clarity the votes obtained by Salalila and Ocampo. It
bears no sign whatsoever of tampering or alteration. Moreover,
contrary to the findings of the Second Division, the election
returns for this precinct did not state that there were 197 voters
who actually voted and that there were 22 excess ballots but
rather, the number of voters who actually voted is only 105 out of
115 total registered voters in this precinct and the excess ballots is
zero. We, therefore, rule for the inclusion in the canvass of
the election returns for this precinct. M-issdaa

In the election returns for precinct 92-A, it was ruled excluded on

the ground that one (1) vote is missing therein, 153 voters having
actually voted and private respondent Salalila received 152 votes
while petitioner got zero (0). We overrule. The fact that Salalila got
one hundred fifty two (152) votes out of 153 voters who actually
voted while Ocampo got zero (0), does not necessarily mean that
one (1) vote is missing. One (1) voter in this precinct might have
desisted from casting his vote for the mayor or may have voted
but the vote was not credited because it was stray or just illegible.
But the missing vote cannot be a ground for exclusion. Hence,
We rule for the inclusion of the election returns in the
canvass.

In the election returns for clustered precincts 93-A and 94-A, an

examination of the returns shows that it is complete with entries of
the requisite data and that it had been signed by all the members
of the board of election inspectors. It also discloses that it is not
true there was one hundred percent (100%) turn-out of voters for
this clustered precincts as there were only two hundred forty five
(245) voters who actually voted out of the two hundred seventy
two (272) registered voters. Hence, there is nothing mysterious
about the 27 excess but unused ballots found in the ballot box.
Similarly, we saw no erasures or alteration on the face of the
election returns, specifically the portion showing the number of
votes. If at all, there were superimposition made on the faintly
written names of the candidates to make the same easily
readable. Such superimposition on the names of candidates did
not in any manner render the number of votes garnered by the
candidates subject to doubt as to bring the same within the realm
of controversy. Moreover, We find intriguing the finding that
chairman of the board of election inspectors claimed that private
respondent received 96 votes instead of 97 while petitioner
received 4 votes yet the election returns states that petitioner
received only three votes instead of four. We find nothing in the
records to support it. The election returns itself shows that Salalia
obtained two hundred thirty six (236) votes while Ocampo got
seven (7) votes. We, therefore, rule for the inclusion in the
canvass of said election returns.

In the election returns for clustered precincts 99-A and 100-A, and
precinct 104-A, only formal defects are present, there being no
entries of the requisite data as to the number of registered voters
in the precincts, the actual number of votes cast, and the number
of valid votes cast. However, the number of votes credited to the
petitioner/appellant and respondent/appellee as reflected by the
taras show correctness of count. There were no erasures or
alteration as to put the same into question. We therefore,
likewise rule for the inclusion in the canvass of this election
returns. Sd-aad-sc

In the election returns for precinct 105-A, it was ruled excluded

because of alleged discrepancies in the material data in that the
total number of registered voters in the precinct is 141 while the
total number of the voters who actually voted is 121 but found out
inside the ballot box were 144 valid ballots which is excess of
three (3) from the total number of registered voters for the
precinct. The three (3) "excess" ballots are in reality not excess
ballots. The precinct ratio on ballot distribution adopted by the
Commission in the 11 May 1998 elections is one (1) ballot for
every registered voter plus four (4) ballots. At any rate, an
examination of the questioned election returns shows that the
defects are only formal and not material as to warrant the outright
exclusion from canvass of the questioned election returns. The
number of votes credited to petitioner/appellant who got three (3)
votes and private respondent/appellee who received one hundred
fifteen (15) votes was undisturbed and does not bear any sign of
alteration as to put the result of the election into question. We,
 therefore, likewise rule for the inclusion in the canvass of the
election returns for this precinct.[12]

Notably, the COMELEC en banc merely sustained the findings and rulings of
the Municipal Board of Canvassers who, at the first instance, found the
contested election returns to be genuine and authentic and the objections to
be without merit. Moreover, the COMELEC en banc did not meet any
oppositions or dissent from any of the Commissioners who have rendered the
resolution reversing the decision of the MBC. This only goes to show that
[13]

there was a painstaking review and examination of the returns by the

COMELEC en banc which does not warrant a different conclusion from this
Court. Rtc-spped

That the election returns were obviously manufactured must be evident from
the face of said documents. In the absence of a strong evidence establishing
[14]

spuriousness of the returns, the basic rule that the election returns shall be
accorded prima facie status as bona fide reports of the results of the count of
the votes for canvassing and proclamation purposes must perforce prevail.
The COMELEC en banc did not find any signs of alterations or tampering on
[15]

the election returns nor did the petitioner present any hard evidence of such
irregularity. The only thing which we surmise came too close to such a change
was the written superimposition made on the family names of the candidates
in the election returns of the clustered precincts 93-A and 94-A. This was
certainly not an alteration or tampering since the COMELEC en banc found
that such superimposition was necessarily done in order to make the names
readable. Nonetheless, petitioner failed to deduce evidence to the contrary.
The other thing which petitioner considered the returns to be "obviously
manufactured" was the fact that petitioner garnered zero (0) votes in three (3)
precincts which was allegedly statistically improbable. To this claim, the case
of Sanki v. COMELEC is worth reiterating:
[16]

x x x Indeed, the bare fact that candidates for public office had
received zero votes is not enough to make the returns statistically
improbable. In the Lagumbaydecision itself, Chief Justice Cesar
Bengzon, who delivered the majority opinion, did not say that
when one candidate receives nothing in an election return; such a
circumstance alone will make said return statistically improbable.
xxx

xxx
 x x x we can not, with certainty, conclude form the facts before us
that the returns questioned were "not true returns of legal votes
actually cast, but simply manufactured evidences of an attempt to
defeat the popular will. Sc-lex

To be sure, it cannot be said here - as this Court did intimate

in Lagumbay - that respondent board of canvassers may legally
deny "prima facie recognition to such returns on the ground that
they are manifestly fabricated or falsified;" or that "the fraud is so
palpable from the return itself (res ipsa loquitur - the thing speaks
for itself)", such that "there is no reason to accept and give
it prima facie value."

The factual background of this case suggests that we should not

unduly expand the reach of the statistically improbable doctrine
carved out of the facts obtaining in Lagumbay. Rather, we should
say that respondent board of canvassers - sustained by Comelec
- in refusing to reject canvass of the returns from the disputed
precincts, properly performed the functions allocated to it by law. It
did well in not overstepping its authority. x x x

Anent the objection as to the omitted data in the election returns, a close
reading of Section 234 of the Omnibus Election Code shows that nothing in
said provision provides for the exclusion of the election returns.

Moreover, such omitted data are merely formal defects and not so material as
to affect the votes the candidates obtained in the election. We find the case
of Baterina vs. Commission on Elections similar to the case at bar, where the
[17]

Court elucidated that:

[T]he grounds raised by petitioners for the exclusion of the

election returns from the canvassing, as stated in their "Appeal
Memorandum", before the COMELEC (Rollo, p. 92), refer to the
failure to close the entries with the signatures of the election
inspectors; lack of inner and outer paper seals; canvassing by the
BOARD of copies not intended for it; lack of time and date of
receipt by the BOARD of election returns; lack of signatures of
petitioners watchers; and lack of authority of the person receiving
the election returns. Scmis

While the aforesaid grounds may, indeed, involve a violation of the

rules governing the preparation and delivery of elections returns
 for canvassing, they do not necessarily affect the authenticity and
genuineness of the subject election returns as to warrant their
exclusion from the canvassing. The grounds for objection to the
election returns made by petitioner are clearly defects in form
insufficient to support a conclusion that the election returns were
tampered with or spurious. "A conclusion that an election return is
obviously manufactured or false and consequently should be
disregarded in the canvass must be approached with extreme
caution and only upon the most convincing proof. x x x

For as long as the election returns which on their face appear regular and
wanting of any physical signs of tampering, alteration or other similar vice,
such election returns cannot just be unjustifiably excluded. To look beyond or
behind these returns is not a proper issue in a pre-proclamation controversy
as in the case at bar. [18]

WHEREFORE, the petition for certiorari in G.R. No. 136282 is hereby

DISMISSED for its failure to show grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of the Commission on Elections
(COMELEC) in rendering the assailed Resolution, dated November 19, 1998.
G.R. No. 133470 is, likewise, DISMISSED. The Temporary Restraining Order
issued on December 15, 1998 is hereby LIFTED.

SO ORDERED.

[G.R. Nos. 154442-47. December 10, 2003]

SALIPONGAN L. DAGLOC, petitioner, vs. COMMISSION ON

ELECTIONS, BAI SUSAN A. SAMAD and KENNEDY P.
DILANGALEN, respondents.

DECISION
AZCUNA, J.:

This is a petition for certiorari and prohibition with a prayer for the issuance
of a writ of preliminary injunction and/or temporary restraining order, under
Rule 65 of the Rules of Court, seeking the nullification of the
resolution dated July 18, 2002 of the Commission on Elections (COMELEC)
[1]

en banc. Petitioner primarily contends that the COMELEC en banc committed

grave abuse of discretion amounting to lack or excess of jurisdiction in
ordering the exclusion from canvass of the election returns from nine precincts
in the Municipality of Kabuntalan, Province of Maguindanao, in connection
with the May 14, 2001 elections.

The Antecedents

During the May 14, 2001 elections, Bai Susan A. Samad (Samad),
Salipongan I. Dagloc (Dagloc) and Kennedy Dilangalen (Dilangalen) were
among the mayoralty candidates in
the Municipality of Kabuntalan, Province of Maguindanao. [2]

During the canvassing of the election returns for

the Municipality of Kabuntalan, Samad, Dagloc and Dilangalen filed their
respective objections and oppositions to the inclusion or exclusion from the
canvass of certain election returns from several precincts.
[3]

Samad contested the inclusion of the election returns from Precinct Nos.
31A, 31B, 32A/32B, 33A and 33B, all of Brgy. Bagumbayan, on the grounds
that: (a) the returns were tampered and falsified, and (b) the returns were
prepared under duress, threats, coercion and intimidation.[4]

In its rulings dated May 23 and May 26, 2001, the Municipal Board of
Canvassers of Kabuntalan (the Board) dismissed Samads petitions to exclude
the said election returns because she failed to submit evidence within twenty-
four (24) hours from the time of her objection. On June 1 and 5, 2001, Samad
appealed from said rulings of the Board before the COMELEC, and her
appeal was docketed as SPC 01-341 and SPC 01-342, respectively. [5]

On the other hand, Dagloc questioned the inclusion of the election returns
from Precinct Nos. 78A/79A, 80A/81A and 82A on the ground that the returns
were manufactured or spurious because the counting of the votes and the
preparation of the said election returns were conducted in a privately-owned
house which was under the control of a barangay chairman, who was an
alleged ally and political supporter of Samad. Dagloc also opposed the
exclusion of the election returns from Precinct Nos. 58A/59A, 70A, 71A, 83A
and 84A on the ground that said returns appeared regular on their face and
[6]

the alleged irregularities were done during the voting. Dagloc further stated
that the COMELEC authorized the voting in Precinct Nos. 78A/79A, 80A/81A,
82A, 58A/59A, 70A, 71A, 83A and 84A to be conducted in the gymnasium of
the 6th Infantry Division, Philippine Army, Awang, Datu Odin Sinsuat,
Maguindanao. [7]
 The Board, in resolving the objections and oppositions filed by Dagloc,
ruled to include in the canvassing the election returns from Precinct Nos.
78A/79A, 80A/81A and 82A, and granted Samads petitions to exclude the
returns from Precinct Nos. 58A/59A, 70A, 71A, 83A and 84A. On June 7,
2001, Dagloc appealed from the said rulings of the Board with the COMELEC,
and his appeal was docketed as SPC 01-282. [8]

Dilangalen also filed several petitions to exclude from the canvassing the
election returns from Precinct Nos. 1A, 1B, 2A, 2B/3B, 3A, 5A/6A, 17A, 31A,
31B, 32A/32B, 33A/33B, 34A/35A, 36A/37A, 38A, 45B/46A, 70A, 71A,
78A/79B, 80A/81A and 82A based on any of the following grounds:

(a) The returns were prepared under duress, threats and intimidation;

(b) The returns were manufactured and falsified and they contained erasures,
mistakes, manifest errors and superimpositions in figures and in words;

(c) The election returns lacked material data;

(d) Terrorism and election irregularities transpired during the casting of votes;
and

(e) Statistical improbability of the results of the elections. [9]

Dilangalen alleged that the Board dismissed his petitions and included the
contested returns in the canvassing. Hence, on June 12, 2001, he filed a pre-
proclamation case before the COMELEC, docketed as SPC No. 01-285. [10]

On June 13, 2001, Dagloc filed a Petition to Annul Falsified Proclamation

and to Suspend the Effects of Falsified Proclamation, docketed as SPC 01-
291. Dagloc alleged that on June 7, 2001, while the tabulation of the election
returns was still in progress, the Board, consisting of Chairman Dionisio
Linaban and Member-Secretary AndamanSamud proclaimed Bai Susan A.
Samad as mayor, Datu Nasser H. Ali as vice-mayor, and Monambai (sic)
Diocalano, Brahim Mokamad, H. Sittie Tula, Lincoln Radzak, Zainadun
Kabulan, H. Faisal Pendi, Almada Pidzakal and H. Rouf Adbulrakman as
members of the Sangguniang Bayan (Samad, et al.). [11]

Further, Dagloc maintained that the Certificate of Canvass and

Proclamation of Winning Candidates for Municipal Offices (CEF No. 25) with
Serial No. 8692104, used by the Board, was not valid because: (1) the
signature of Samud was allegedly obtained by force by two men who blocked
his way on June 6, 2001 at around 10:10 p.m.; and (2) Linaban was absent
during the purported proclamation. Dagloc thus prayed for the annulment of
the proclamation of Samad, et al. [12]

On June 18, 2001, Samad, et al. filed a petition before the COMELEC,
docketed as SPC 01-310, alleging that on June 8, 2001, members of the
Board, namely, Vice-Chairman Usman D. Zailon and Member-Secretary
Andaman K. Samud proclaimed Datu Salipongan L. Dagloc as mayor, Datu
Mohidin S. Lauban as vice-mayor, and Amnambai Diocolano, H. Sittie Tula,
Fhamie Dumaba, H. Brahim Mokamad and Lincoln M. Radzak as members of
the Sangguniang Bayan (Dagloc, et al.). Said proclamation was evidenced by
CEF No. 25 with Serial No. 8692109. Samad, et al. contended that the second
proclamation was a nullity based on the following grounds:

(a) The second proclamation was made without notice and hearing;

(b) The second proclamation cannot annul the first proclamation;

(c) The signature of Andamen K. Samud in the second proclamation was

obtained through intimidation by the armed men of Dagloc; and

(d) The second proclamation is void for there were only five (5) councilors
who were proclaimed. [13]

The COMELEC consolidated the aforementioned six cases filed by

Dagloc, Samad, Samad, et al., and Dilangalen.
In its resolution dated May 29, 2002, the COMELEC, Second Division
(Second Division), clarified that the contested returns refer to the election
returns from Precinct Nos. 1A, 1B, 2A, 2B/3B, 3A, 5A/6A, 17A, 31A, 31B,
32A/32B, 33A/33B, 34A/35A, 36A/37A, 38A, e45A/46B, 45B/46A, 58A/59A,
70A, 71A, 72A, 78A/79B, 80A/81A, 82A, 83A and 84A. [14]

The Second Division found that some of the grounds relied upon by the
petitioners, i.e, tampered, falsified, manufactured or spurious returns, returns
prepared under duress, threats, coercion, etc., were proper issues for a pre-
proclamation controversy under subsections (b) and (c) of Section 243 of the [15]

Omnibus Election Code. The Second Division, however, stated that objections
to the inclusion of the election returns should not be immediately accorded
weight absent any showing that on the face thereof, there are patent
irregularities. It took into consideration the doctrine that as long as the returns
appear to be authentic and duly accomplished on their face, the Board of
Canvassers cannot look beyond or behind them to verify allegations of
irregularities in the casting or counting of votes.[16]
 The Second Division noted that based on the written rulings of the Linaban
Board, the election returns from Precinct Nos. 31A, 31B, 32A/32B and
33A/33B and 45A (should have been Precinct Nos. 70A, 71A, 83A and 84A)
were excluded because of alleged election irregularities perpetrated by some
members of the Board of Election Inspectors (BEI) and the disqualification of
some members thereof as evidenced by purported affidavits executed by
Usman. [17]

The Second Division, however, resolved to include the returns from

Precinct Nos. 31A, 31B, 32A/32B and 33A/33B (should have been Precinct
Nos. 70A, 71A, 83A and 84A) in the canvass on the following grounds:

a) The contested election returns contained no sign of any tampering or

alteration, affecting the standing of the candidates; they are prima
facie regular on their face;

b) The alleged irregularities occurred in the BEI level. Pre-proclamation

controversies are limited to challenges directed against the Board of
Canvassers and the proceedings thereof and not challenges with respect
to proceedings before the Board of Election Inspectors or its
composition.

c) The grounds raised compel the COMELEC to pierce the veil of election
returns, which, as adverted to, are not proper issues for pre-proclamation
controversies. A party seeking to raise issues the resolution of which
would necessitate the COMELEC to pierce the veil of election returns
that are prima facie regular on their face has his proper remedy in an
election protest case.[18]

With respect to the other grounds raised to support the exclusion of the
contested returns, the Second Division made the following findings:

1. Election returns from Precinct Nos. 31A, 32A/32B, 36A/37A, 45A/46B,

70A, 80A/81A and 82A There is no entry on the space provided for Data
on Voters and Ballots. Such omission, however, does not invalidate the
election returns. The defect does not, in any way, affect the results of the
elections.

2. Election Returns from Precinct Nos. 5A/6A, 38A and 71AThere were
erasures in the votes of some candidates in figures and in
words. Nevertheless, the said election returns must be included applying
the aforecited Section 30 of COMELEC Resolution 3848.
 3. Election Returns from Precinct Nos. 2B/3B, 31B, 34A/35A, 45B/46A,
78A/79A and 83A -- There are superimpositions or erasures but they
were countersigned and were just obviously made to correct clerical
errors.

We also resolve to include election returns from Precinct Nos. 1A/1B, 2A, 3A, 17A,
58A/59A, 72A and 84A on the ground that they are perfectly regular on their face. [19]

Moreover, the Second Division declared the first proclamation of

Samad, et al. and the subsequent proclamation of Dagloc, et al. to be illegal.
The COMELEC, Second Division, pronounced judgment, thus:

WHEREFORE, in view of the foregoing, the COMMISSION RESOLVE, as it

hereby RESOLVES, to INVALIDATE (1) the Certificate of Canvass and
Proclamation of Winning Candidates for Local Positions (CEF No. 25) with Serial
No. 8692104 certifying to the proclamation of Samad, et al. and (2) the Certificate of
Canvass and Proclamation of Winning Candidates for Local Positions (CEF NO. 25)
with Serial No. 8692109 certifying to the proclamation of Dagloc, et al.

ACCORDINGLY, We:

(1) ORDER the CONSTITUTION of a SPECIAL BOARD OF

CANVASSERS composed of COMELEC lawyers to be appointed by the
Commission;
(2) DIRECT THE Municipal Board of Canvassers of Kabuntalan to DELIVER to
Election Records and Statistics Department (ERSD), COMELEC, Manila, all
the election returns from Precinct Nos. 17A, 45B/46A, 58A/59A, 70A, 71A,
72A, 78A/79A, 80A/81A, 82A, 83A, 84A, 45A/46B, 31A, 31B, 32A/32B and
33A/33B, as well as the election records and documents pertaining to these
cases; and
(3) ORDER the Special Board of Canvassers to:

(i) immediately RECONVENE upon receipt of said election returns

and after serving proper notice to all the parties concerned;

(ii) COMPLETE the CANVASS by including the results in Precinct

Nos. 17A, 45B/46A, 58A/59A, 70A, 71A, 72A, 78A/79A,
80A/81A, 82A, 83A, 84A, 45A/46B, 31A, 31B, 32A/32B and
33A/33B; and

(iii) Thereafter, PROCLAIM the winning candidates for the position

of MAYOR, VICE-MAYOR and MEMBERS OF
 THE SANGGUNIANG BAYAN of
the Municipalityof Kabuntalan, Maguindanao.

The Provincial Election Supervisor of Maguindanao and the Election Officer of

Kabuntalan are hereby DIRECTED to COORDINATE with the local police or
members of the Armed forces of the Philippines to ensure that the integrity of the
ballot boxes containing the contested election returns and other election records is not
violated.

The Urgent Motion for Handwriting Examination filed by petitioner DAGLOC is

hereby DENIED.

The Law Department is hereby directed to immediately INVESTIGATE EO

DIONISIO LINABANs questionable act of leaving the canvassing venue without
notice and authority from this Commission during the canvassing on June 7-8,
2001 and to PROSECUTE him upon finding of probable cause.

Let a copy of this resolution be furnished to the Department of Interior and Local
Government (DILG) for implementation and for appropriate action.

SO ORDERED. [20]

Presiding Commissioner Ralph C. Lantion dissented from the resolution

[21]

of the Second Division and voted to exclude from the canvass the election
returns from Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A
and 84A.
On June 3, 2002, Samad seasonably filed a motion for reconsideration of
the resolution of the COMELEC, Second Division, relying mainly on the
dissenting opinion of Commissioner Lantion. It appears that Dilangalen filed,
out of time, his motion for reconsideration on July 2, 2002.
[22]

On July 18, 2002, the COMELEC en banc resolved Samads motion for
reconsideration. The COMELEC en banc agreed with the resolution of the
Second Division that the consolidated cases were pre-proclamation
controversies since some of the grounds (i.e., tampered, falsified,
manufactured or spurious returns, returns prepared under duress, threats,
coercion, etc.) were proper issues for a pre-proclamation controversy under
subsections (b) and (c) of Section 243 of the Omnibus Election Code. It ruled
[23]

that the Second Division correctly annulled the proclamation of Samad and
Dagloc as the duly elected mayor of the Municipality of Kabuntalan,
Maguindanao pursuant to Section 20 (i) of Republic Act No. 7166.
[24] [25]
 The COMELEC en banc held that the only issue to be resolved was the
propriety of the inclusion or exclusion of the contested returns, taking into
account the contradicting conclusions of the two members of the Second
Division and its Presiding Commissioner. It noted that if all the election returns
were canvassed, Dagloc would win by a plurality of votes. But if the election
returns from Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A
and 84A were excluded from the canvass, as ruled in the dissenting opinion,
Samad would win. [26]

The COMELEC en banc held that after a careful study of the evidence on
record, it found that only the election returns from Precinct Nos. 31A, 31B,
32A/32B, 33A/33B, 70A, 71A, 72A, 83A and 84A remain to be proper subjects
for review as the grounds relied upon to exclude the other contested returns
were appropriate in a regular election protest. [27]

The COMELEC en banc sustained the findings in the dissenting opinion of

the Presiding Commissioner of the Second Division, and excluded from the
canvass the election returns from Precinct Nos. 31A, 31B, 32A/32B, 33A/33B,
70A, 71A, 72A, 83A and 84A (hereinafter, the nine election returns). The
COMELEC en banc anchored the exclusion of the nine election returns on the
manner of their preparation, which it found to be sham. The COMELEC en
banc held that the votes reported in the nine election returns do not reflect the
true will of the electorate. It added that this conclusion was strengthened by
the fact that in the supposed affidavit of the BEI members of Kabuntalan,
Maguindanao, which was attached by Dagloc in his appeal in SPC 01-282 to
prove the regularity of the exercise of the BEIs assigned task, only one
member of the BEI from Precinct No. 70A, Sandatu Kamson, signed said
affidavit, while no member of the BEI from Precinct Nos. 31A, 31B, 32A/32B,
33A/33B, 71A, 72A, 83A and 84A signed it. [28]

The COMELEC en banc pronounced judgment, thus:

WHEREFORE, the proclamation of both Datu Salipongan Dagloc and Bai Susan
Samad as municipal mayor of Kabuntalan, Maguindanao is
hereby ANNULLED. Furthermore, a New Municipal Board of Canvassers is hereby
constituted, to be composed of Comelec lawyers, mandated to canvass the valid
election returns in Kabuntalan, Maguindanao, taking into consideration the above
observations in Election Returns No. 69090014, 69090021, 69090036, 69090044,
69090045, 69090046, 69090056, 69090061, 69090062, 69090067, and 69090069,
from Precinct Nos. 17A, 25A/26A, 45A, 56A/57A, 58A/59A, 60A, 73A/74A,
80A/81A, 82A, 89A, and 91A, respectively, in the proper appreciation of votes of the
contending mayoralty candidates, and EXCLUDING therefrom the election returns
from Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A, and 84A, in
accordance with the foregoing disquisition, and on the basis thereof proclaim the
winning local candidates in the May 14, 2001 National and Local Elections.

Furthermore, the Law Department is hereby directed to investigate, and if necessary,

prosecute upon finding of probable cause: (1) the Chairman, Vice-Chairman, and
Member-Secretary of the Municipal Board of Canvassers of Kabuntalan,
Maguindanao for apparently being partisan by favoring certain local candidates; and
(2) the members of the BEIs in Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A,
71A, 72A, 83A, and 84A, namely:

xxx xxx xxx

SO ORDERED. [29]

On August 15, 2002, Dagloc filed this instant petition for certiorari, raising
the following issues:

1. The respondent COMELEC committed grave abuse of discretion

amounting to lack or excess of jurisdiction when it issued the
questioned PER CURIAM Resolution ordering the EXCLUSION of the
nine (9) election returns based on objections which are not proper for
pre-proclamation controversies.

2. The respondent COMELEC committed grave abuse of discretion

amounting to lack or excess of jurisdiction when it issued the
questioned PER CURIAM Resolution ordering the EXCLUSION of the
nine (9) election returns without clear and convincing evidence of fraud
and other election irregularities.

3. The respondent COMELEC committed grave abuse of discretion

amounting to lack or excess of jurisdiction in not dismissing SPC No.
01-342 for failure to comply with the mandatory procedure provided in
Section 20 of RA 7166 and Section 38 of Comelec Resolution No. 3848.
[30]

On August 26, 2002, petitioner filed a Most Urgent Motion and Plea
Reiterating the Previous Prayer for the Issuance of a Temporary Restraining
Order, which was denied by the Court for lack of merit.
[31] [32]

On September 3, 2002, the Municipal Board of Canvassers of Kabuntalan

proclaimed Bai Susan A. Samad as the duly elected mayor of
the Municipality of Kabuntalan, having obtained the highest number of
[33]
votes. On the same date, Samad took her oath of office, and thereafter
[34]

assumed office.[35]

On September 16, 2002, respondent Dilangalen filed a Motion to Issue a

Status Quo Order as of the Filing of the Petition and/or Motion for the
Issuance of a Temporary Restraining Order Enjoining the Respondent Samad
from Assuming and/or Performing the Functions of Mayor , which was also
[36]

denied by the Court for lack of merit.

[37]

On September 16, 2002, Mohidin S. Lauban, a party mate of petitioner

Dagloc and a candidate for vice-mayor in the May 14, 2001 elections in
the Municipality of Kabuntalan, Maguindanao, filed a motion for leave to
intervene and a petition-in-intervention. Lauban alleged that the COMELEC
committed grave abuse of discretion amounting to lack or excess of
jurisdiction for: (1) failing to notify him about the proceedings in the
consolidated cases including SPC No. 01-310, and thereafter annulling his
proclamation in violation of his right to due process; and (2) ordering the
exclusion of the nine election returns grounded on objections which were
improper for a pre-proclamation controversy.
On October 1, 2002, the Court resolved to grant Laubans motion and
required respondents to comment on Laubans petition-in-intervention. [38]

Finally, in her Comment to Daglocs petition for certiorari, respondent

[39]

Samad averred that on September 13, 2002, Dagloc filed an Election

Protest Ad Cautelam before the Regional Trial Court of Cotabato City, which is
still pending with the said court.

The Courts Ruling

First Issue: The existence of grounds for a pre-proclamation controversy

Petitioner avers that the COMELEC en banc excluded the election returns
from Precinct Nos. 70A, 71A, 83A and 84A for being spurious due to the
following reasons (as quoted from the dissenting opinion of Commissioner
Lantion): (1) the alleged disqualification of some members of the BEI in said
precincts; and (2) the Board found that the same members of the BEI were
the ones who committed illegal acts, such that the votes reported in the
subject returns do not reflect the true will of the electorate.
Petitioner states that the COMELEC also excluded the election returns
from Precinct Nos. 31A, 31B, 32A/32B and 33A/33B for the same reasons
advanced in excluding the election returns from Precinct Nos. 70A, 71A, 72A,
83A and 84A. According to petitioner, the COMELEC made said conclusion by
relying solely on the averments of respondent Samad in SPC No. 01-341 and
SPC No. 01-3342, thus:

In SPC No. 01-341 and SPC No. 01-342, Bai Susan Samad questions the inclusion of
the election returns in Precincts No. 31A, 31B, 32A/32B, 33A/33B. [She] avers that
they are tampered or falsified and prepared under duress, threats, coercion and
intimidation. An eyewitness and official watcher in Precinct No. 31A, Deduzman
Lakim, stated in his affidavit dated May 19, 2001 that on May 14, 2001, Salipongan
Dagloc approached him and said that he (Lakim) will be killed after the
election. Consequently, Lakim and his co-watchers, namely: Amera Lakim, Asis
Abdulla, and Tuansi Sandiale, who were assigned at Precincts No. 31B, 32A/32B,
33A/33B, respectively, failed to report because they were afraid they will be killed by
Dagloc. Lakim narrated that the ballots in said contested precincts were openly
tampered and falsified by Daglocs supporters. So that the counting of votes were
based on tampered and falsified ballots which, in turn, were the bases reflected
on the election return. x x x (Emphasis supplied by petitioner Dagloc.)
[40]

Petitioner contends that the aforementioned reasons advanced by the

COMELEC for the exclusion of the nine election returns are not proper issues
in a pre-proclamation controversy. Citing Patoray v. Comelec, petitioner [41]

contends that under the Omnibus Election Code, pre-proclamation

controversies are limited to: (1) challenges directed against the
composition or proceedings of the board of canvassers (not the board
of election inspectors), or (2) challenges related to election returns to which
a party must have made specific objections. (Emphasis supplied by petitioner
Dagloc.)
Following the arguments of Commissioner Resurreccion Z. Borra in her
Concurring and Dissenting Opinion in the Resolution of the COMELEC en
banc, petitioner contends that the Second Division in its Resolution found that
the contested returns contained no tampering or alteration affecting the
standing of the candidates and that they were prima facie regular on their
face; hence, the Second Division included said returns in the
canvass. Petitioner asserts that this is in accordance with the Courts ruling
in Matalam v. COMELEC, that [i]n the absence of a strong evidence
[42]

establishing spuriousness of the returns, the basic rule that election returns
shall be accorded prima facie status as bona fide reports of the results of the
counts of votes for canvassing and proclamation purposes must perforce
prevail. Petitioner also cited Loong v. COMELEC, where the Court held:
[43]
The policy consideration underlying the delimitation of both substantive ground and
legal procedure is the policy to determine as quickly as possible the result of the
election on the basis of the canvass. x x x The prevailing doctrine in this jurisdiction,
therefore, is that as long as the returns appear to be authentic, and duly accomplished
on their face, the Board of Canvassers cannot look beyond or behind them to verify
allegations of irregularities in the casting and counting of the votes.

Petitioner thus contends that the COMELEC committed grave abuse of

discretion amounting to lack or excess of jurisdiction in excluding the nine
election returns because of alleged disqualification of some members of the
BEI and alleged irregularities perpetrated by said members, which are not
proper issues in a pre-proclamation controversy.
Section 243 of the Omnibus Election Code provides:

Sec. 243. Issues that may be raised in pre-proclamation controversy.-- the following
shall be proper issues that may be raised in a pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects,
appear to be tampered with or falsified, or contain discrepancies in the
same returns or in other authentic copies thereof as mentioned in
Sections 233, 234, 235 and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion, or
intimidation, or they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were

canvassed, the results of which materially affected the standing of the
aggrieved candidate or candidates.

The enumeration is restrictive and exclusive. [44]

Admittedly, the COMELEC en banc ordered the exclusion of the nine

election returns from the canvass considering partly the reasons aforecited by
petitioner. Petitioner, however, omitted to mention the fact that the COMELEC
en banc also gave great weight to the affidavit of the BEI members assigned
in Kabuntalan, Maguindanao, which was attached by Dagloc in his appeal in
SPC 01-282 to prove the supposed regularity of the exercise of the BEIs
assigned task. The COMELEC en banc held:
We cannot just close our eyes and include in the canvass the subject returns,
notwithstanding the undisputed fact that the votes reported in the election returns from
Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A, and 84A do not
reflect the true will of the electorate. This conclusion is strengthened by the fact that
in the supposed affidavit of the BEI members, who were assigned in the different
precincts in Kabuntalan, Maguindanao, attached by Dagloc in his appeal in SPC 01-
282 to prove the supposed regularity of the exercise of the BEIs assigned task, there
were no affiants in Precincts Nos. 83A and 84A; whereas only one member of the BEI
in Precinct Nos. 71A and 72A was named, to wit: Rosalinda Kimbuan and 1Lt. Juan
Gullem, respectively, but both did not sign said affidavit; and only one member of the
BEI in Precinct No. 70A, Sandatu Kamson, signed said affidavit. Moreover, no
member of the BEIs in Precinct Nos. 31A, 31B, 32A/32B, and 33A/33B signed said
affidavit. Neither [were] their [names] even mentioned in it.[45]

All the circumstances, taken as a whole, made the COMELEC en

banc conclude that the election returns from Precinct Nos. 31A, 31B,
32A/32B, 33A/33B, 70A, 71A, 72A, 83A and 84A were spurious.
The case of Patoray v. Comelec, as cited by petitioner, is not in point. To
reiterate, in said case, the Court stated that under the Omnibus Election
Code, pre-proclamation controversies are limited to: (1) challenges
directed against the composition or proceedings of the board of
canvassers (not the board of election inspectors), or (2) challenges
related to election returns to which a party must have made specific
objections. The private respondent therein objected to two returns on the
ground that the election returns are manufactured, fabricated or not authentic,
considering that the election returns includes votes on ballots which are
spurious, marked and invalid ballots. In said case, the Court held that the
municipal board of canvassers correctly ruled that private respondents
objections were not proper in a proclamation controversy since the objection,
as worded, did not challenge the returns, but was directed primarily at the
ballots reflected in the returns (emphasis supplied). Hence, the Court ruled, [i]t
is settled that issues relative to the appreciation of ballots cannot be raised in
a proclamation controversy. Appreciation of ballots is the task of the board of
election inspectors, not the board of canvassers, and questions related
thereto are proper only in election protests.
In this case, what Samad contested was the inclusion of the election
returns from Precinct Nos. 31A, 31B, 32A/32B, 33A and 33B on the ground
that these were tampered or falsified and were prepared under duress,
threats, coercion and intimidation, which are proper issues for a pre-
proclamation controversy under paragraphs (b) and (c) of Section 243 of the
Omnibus Election Code. The Board dismissed Samads petitions; hence,
Samad appealed to the COMELEC. The resolution of the Second Division
shows that Samad also sought the exclusion of the election returns from
Precinct Nos. 70A, 71A, 83A and 84A, but the ground for her objection does
not appear on record. The Board granted the petition of Samad to exclude
said returns; hence, Dagloc appealed from the Boards ruling before the
COMELEC. Evidently, the pre-proclamation cases filed by Samad fall under
the second category adverted to in Patoray v. Comelec, that is, (2)
challenges related to election returns to which a party must have made
specific objections.
Moreover, the COMELEC en bancs findings on the nine election returns
are anchored on the manner of their preparation, which it found to be a sham.
The COMELEC correctly held that said ground is a pre-proclamation issue,
citing Sections 241 and 243 of the Omnibus Election Code, in relation to
Section 235 of the same Code, thus:

Sec. 241. Definition.-- A pre-proclamation controversy refers to any question

pertaining to x x x any matter raised under Sections 233, 234, 235 and 236 in relation
to the preparation, transmission, receipt, custody and appreciation of the election
returns.

Sec. 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:

xxx xxx xxx

(d) When substitute or fraudulent returns in controverted polling places

were canvassed, the results of which materially affected the
standing of the aggrieved candidate or candidates.

Sec. 235. When election returns appear to be tampered with or falsified.If the election
returns submitted to the board of canvassers appear to be x x x x prepared by persons
other than the member of the board of election inspectors, the board of canvassers
shall use the other copies of said election returns and, if necessary, the copy inside the
ballot box which upon previous authority given by the Commission may be retrieved
in accordance with Section 220 hereof. If the other copies of the returns are likewise x
x x x prepared by persons other than the members of the board of election inspectors,
the board of canvassers or any candidate affected shall bring the matter to the
attention of the Commission. The Commission shall then, after giving notice to all
candidates concerned and after satisfying itself that nothing in the ballot box indicate
that its identity and integrity have been violated, order the opening of the ballot box
and, likewise after satisfying itself that the integrity of the ballots therein has been
duly preserved shall order the board of election inspectors to recount the votes of the
candidates affected and prepare a new return which shall then be used by the board of
canvassers as basis of the canvass.

Although the COMELEC en banc noted that Deduzman Lakim, an

eyewitness and official watcher in Precinct No. 31A, stated in his affidavit that
the ballots in Precinct Nos. 31A, 31B, 32A/32B, 33A/33B were openly
tampered and falsified by Daglocs supporters, it must be clarified that the
appreciation of ballots is not the ground raised by Samad for the exclusion of
the nine election returns, and it is also not the basis of the COMELEC en
banc for excluding said returns.
Further, the aforecited doctrine that as long as the returns appear to be
authentic, and duly accomplished on their face, the Board of Canvassers
cannot look beyond or behind them to verify allegations of irregularities in the
casting and counting of the votes, is not applicable in this case due to the
following reasons:

(1) The COMELEC has the authority to review the rulings of the Board of
Canvassers in a pre-proclamation controversy under paragraphs (e) to (f) of section 20
(Procedure in Disposition of Contested election Returns) of Republic Act No. 7166; [46]

(2) The COMELEC en banc found that the nine election returns are fraudulent in the
manner of their preparation which is a pre-proclamation issue under Sections 241 and
243 of the Omnibus Election Code;

(3) The allegations of irregularity is not in the casting and counting of votes, but in
the preparation of the election returns (i.e., the election returns from Precinct Nos.
31A, 31B, 32A/32B, 33A and 33B were tampered or falsified and were
prepared under duress, threats, coercion and intimidation).

Given the factual finding of the COMELEC en banc that the nine election
returns are spurious in the manner of their preparation, doubt is cast on the
authentic appearance of said returns. Hence, the subject election returns
cannot be accorded prima facie status as genuine reports of the results of the
counts of votes. Nevertheless, under Section 235 of the Omnibus Election
Code, a recount of votes may be resorted to, if the integrity of the affected
ballot boxes and their contents has been preserved. Thereafter, new returns
shall be prepared which shall be used by the Board of Canvassers as basis of
the canvass. This procedure protects the will of the electorate.
 Second Issue: Sufficiency of evidence in finding that the
nine election returns were spurious

Appellant contends that the COMELEC abused its discretion in finding the
nine election returns spurious without clear and convincing evidence of fraud
and other election irregularities.
The Court is not persuaded.
The COMELEC en banc, after a judicious evaluation of the documents on
record, upheld the findings stated in the dissenting opinion of Presiding
Commissioner Ralph C. Lantion in the Resolution of the Second
Division. What exactly these documents and evidence are upon which the
COMELEC en banc based its resolution, and how they have been appreciated
in respect of their sufficiency, are beyond this Courts scrutiny. The rule that
[47]

factual findings of administrative bodies will not be disturbed by courts of

justice except when there is absolutely no evidence or no substantial evidence
in support of such findings should be applied with greater force when it
concerns the COMELEC, as the framers of the Constitution intended to place
the COMELEC--created and explicitly made independent by the Constitution
itselfon a level higher than statutory administrative organs. The factual [48]

finding of the COMELEC en banc is therefore binding on the Court.

Third Issue: The proper remedy in case of spurious election returns

Petitioner contends that even assuming that the subject election returns
are spurious, the remedy is not exclusion, but that provided in Section 235 of
the Omnibus Election Code, thus:

Sec. 235. When election returns appear to be tampered with or falsified.If the election
returns submitted to the board of canvassers appear to be tampered with, altered or
falsified after they have left the hands of the board of election inspectors, or otherwise
not authentic, or were prepared by the board of election inspectors under duress, force,
intimidation, or prepared by persons other than the member of the board of election
inspectors, the board of canvassers shall use the other copies of said election returns
and, if necessary, the copy inside the ballot box which upon previous authority given
by the Commission may be retrieved in accordance with Section 220 hereof. If the
other copies of the returns are likewise tampered with, altered, falsified, not authentic,
prepared under duress, force, intimidation, or prepared by persons other than the
members of the board of election inspectors, the board of canvassers or any candidate
affected shall bring the matter to the attention of the Commission. The Commission
shall then, after giving notice to all candidates concerned and after satisfying itself
that nothing in the ballot box indicate that its identity and integrity have been violated,
order the opening of the ballot box and, likewise after satisfying itself that the
integrity of the ballots therein has been duly preserved shall order the board of
election inspectors to recount the votes of the candidates affected and prepare a new
return which shall then be used by the board of canvassers as basis of the canvass.

According to petitioner, while it may be true that the board of canvassers

will not be compelled to canvass election returns which are falsified or
spurious, this does not, however, mean that the board should right away
disregard and exclude the election returns and ultimately the votes cast in the
precinct. Hence, petitioner contends that the exclusion from canvass of the
nine election returns by the COMELEC is a clear exercise of grave abuse of
discretion.
The contention is meritorious.
Outright exclusion of election returns on the ground that they were
fraudulently prepared by some members or non-members of the BEI
disenfranchises the voters. Hence, when election returns are found to be
spurious or falsified, Section 235 of the Omnibus Election Code provides the
procedure which enables the COMELEC to ascertain the will of the electorate.
The COMELEC, therefore, gravely abused its discretion when it excluded
outright the subject election returns after finding that they were fraudulent
returns. Instead, the COMELEC should have followed the procedure laid
down in Section 235 of the Omnibus Election Code: x x x The Commission
shall then, after giving notice to all candidates concerned and after satisfying
itself that nothing in the ballot box indicate that its identity and integrity have
been violated, order the opening of the ballot box and, likewise after satisfying
itself that the integrity of the ballots therein has been duly preserved shall
order the board of election inspectors to recount the votes of the candidates
affected and prepare a new return which shall then be used by the board of
canvassers as basis of the canvass.
Nevertheless, if the integrity of the ballots has been violated, the
COMELEC need not recount the ballots but should seal the ballot box and
order its safekeeping in accordance with Section 237 of the Omnibus Election
Code, thus:

Sec. 237. When integrity of ballots is violated.-- If upon the opening of the ballot box
as ordered by the Commission under Sections 234, 235 and 236, hereof, it should
appear that there are evidence or signs of replacement, tampering or violation of the
integrity of the ballots, The Commission shall not recount the ballots but shall
forthwith seal the ballot box and order its safekeeping.

Therefore, subject to the finding of whether or not the integrity of the

affected ballot boxes and of their ballots has been preserved, the new returns
from Precinct Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A and 84A
shall be included in the canvass. Consequently, not only the votes of the
mayoralty candidates, but also those of the candidates for vice-mayor and
members of the Sangguniang Bayan will be recounted and reflected in the
new returns as basis of the canvass. On the basis of said canvass, the
winning local candidates of the Municipality of Kabuntalan in the May 14,
2001 elections shall be proclaimed.

Fourth Issue: Whether SPC No. 01-342 should have been dismissed

Petitioner contends that the COMELEC should have dismissed SPC No.
01-342 since Samad failed to comply with the mandatory procedure provided
in Section 20 of Republic Act (RA) No. 7166 and Section 38 of Comelec
Resolution No. 3848.
Section 20 of RA No. 7166 provides:

Sec. 20. Procedure in Disposition of Contested Election Returns. (a) Any candidate x
x x x contesting the inclusion or exclusion in the canvass of any election returns on
any of the grounds authorized under Article XX or Sections 234, 235 and 236 of
Article XIX of the Omnibus Election Code shall submit their oral objection to the
chairman of the board of canvassers at the time the questioned return is presented for
inclusion in the canvass. Such objection shall be recorded in the minutes of the
canvass.

xxx xxx xxx

(c) Simultaneous with the oral objection, the objecting party shall also enter
his objection in the form for written objections to be prescribed by
the Commission. Within twenty-four (24) hours from and after the
presentation of such an objection, the objecting party shall
submit the evidence in support of the objection x x x (Emphasis
supplied by petitioner Dagloc.)
 Petitioner claims that Samad failed to submit her evidence in support of
her objections within 24 hours from the time such objections were made,
which is evidenced by the ruling of the Board issued on May 26, 2001.
Further, petitioner asserts that Paragraph 8, Section 38 of Comelec
Resolution No. 3848 mandates that [a]ny appeal brought before the Comelec
on the ruling of the Board, without the accomplished forms and the evidence
thereto, shall be summarily dismissed.
Petitioner thus contends that the COMELEC committed grave abuse of
discretion amounting to lack or excess of jurisdiction when it did not dismiss
SPC No. 01-342 for failure to comply with the mandatory procedure under
Section 20 of Republic Act No. 7166 and Section 38 of Comelec Resolution
No. 3848.
The Court disagrees.
Petitioner is referring to Samads appeal before the COMELEC of the
Boards ruling to include in the canvass the election returns from Precinct Nos.
31A, 31B, 32A/32B, 33A and 33B. It appears that Samad submitted her
evidence belatedly. It may be presumed that when Samad appealed from the
Boards ruling before the COMELEC, the Board elevated its report and the
complete records and evidence submitted in the canvass in accordance with
Section 20, paragraphs (g) and (h) of Republic Act No. 7166, thus:

(g) Immediately upon receipt of the notice of appeal, the board shall make an
appropriate report to the Commission, elevating therewith the complete
records and evidence submitted in the canvass, and furnishing the parties
with copies of the report.

(h) On the basis of the records and evidence elevated to it by the board, the
Commission shall decide summarily the appeal within seven (7) days from
receipt of said records and evidence.Any appeal brought before the
Commission on the ruling of the board, without the accomplished forms and
the evidence appended thereto, shall be summarily dismissed.

In the absence of evidence to the contrary, it is presumed that official duty

has been regularly performed. Moreover, in their respective resolutions, the
COMELEC en bancand the Second Division evidently decided on the pre-
proclamation cases filed before them based on the records and evidence
elevated to them by the Board.
Further, the COMELEC has broad powers to ascertain the true results of
the election by means available to it. It is not strictly bound by procedural
[49]
rules in the attainment of this end. In fact, the COMELEC Rules of Procedure,
wherein the aforecited Section 20 of RA No. 7166 is reiterated, provides that
[50]

said rules shall be liberally construed in order to promote the effective and
efficient implementation of the objectives of ensuring the holding of free,
orderly, honest, peaceful and credible elections and to achieve just,
expeditious and inexpensive determination and disposition of every action and
proceeding brought before the Commission.

Fifth Issue: Whether intervenor was denied due process

In regard to the petition-in-intervention filed by intervenor Mohidin Lauban,

a co-respondent in SPC No. 01-310, it is contended that the COMELEC
committed grave abuse of discretion amounting to lack or excess of
jurisdiction for: (1) failing to notify him about the proceedings in the
consolidated cases including SPC No. 01-310, and thereafter annulling
his proclamation in violation of his right to due process; and (2) ordering the
exclusion of the nine election returns grounded on objections which were
improper for a pre-proclamation controversy.
The Court has already ruled on the incorrectness of the order of the
COMELEC to exclude outright the nine election returns from the canvass;
hence, the remaining issue to be resolved is whether or not the intervenor was
denied due process by the COMELEC.
Lauban contends that the COMELEC deprived him of his right to notice
and hearing in all the proceedings conducted in SPC No. 01-310, wherein he
was a co-respondent, as he was neither notified nor furnished a copy of the
petition. Thereafter, Lauban asserts that the two resolutions of the COMELEC
annulled and set aside his proclamation as vice-mayor of
the Municipality of Kabuntalan, Maguindanao, despite prior knowledge by both
the Second Division and the Commission en banc that he was not duly
notified and heard.
The contention is without merit.
The COMELEC, represented by the Solicitor General, countered that
Lauban was not denied due process before the COMELEC. It observed that
petitioner Dagloc and Lauban were party mates; the former was a candidate
for mayor and the latter for vice-mayor during the May 14, 2001 elections. In
SPC No. 01-310, Dagloc and Lauban and their candidates for Sangguniang
Bayan were impleaded as respondents and their proclamations were sought
to be annulled.
 According to the COMELEC, Dagloc, Lauban and another private
respondent in SPC-310, Fhamie Dumaba, were all represented by Abdul &
Maningas Law Offices as shown by the pleading, Answer to Petition. A notice
[51]

of hearing was sent to Atty. Kamid Abdul as counsel of private

[52]

respondents. In the minutes of the session held at the COMELEC Session

Hall on July 24, 2001 at 2:00 p.m., Atty. Kamid Abdul entered his appearance
as counsel for Dagloc, et al. The COMELEC, therefore, correctly stated
[53]

that Lauban, who was represented by a counsel who filed an answer, was
notified of the hearing and had attended the hearing, cannot claim to have
been denied due process by the COMELEC.
WHEREFORE, the petition-in-intervention is denied for lack of merit,
insofar as intervenor Mohidin S. Lauban claims that the COMELEC denied
him due process. However, said petition-in-intervention and the petition
for certiorari of Salipongan L. Dagloc are given due course insofar as they
pray for the inclusion of the nine election returns in the canvass. The
COMELEC is directed to determine within twenty (20) days from receipt of this
Decision whether the integrity of the ballot boxes and the ballots from Precinct
Nos. 31A, 31B, 32A/32B, 33A/33B, 70A, 71A, 72A, 83A and 84A has been
preserved. If the integrity of the affected ballot boxes and of their
ballots is found to be intact, the COMELEC is directed to order the Board of
Election Inspectors to recount the votes cast in the precinct involved and to
prepare a new return as basis of the canvass. The new return shall be
included in the canvass, in the proper appreciation of the votes of the
candidates for mayor, vice-mayor and members of the Sangguniang Bayan of
the Municipality of Kabuntalan, Province of Maguindanao, and on the basis of
said canvass, the winning local candidates in the May 14, 2001 elections shall
be proclaimed.However, if the integrity of any ballot box or of its ballots has
been violated, the COMELEC shall not recount the affected ballots, but shall
seal the affected ballot box and order its safekeeping.
No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales,
Callejo, Sr., and Tinga, JJ., concur.

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

DATU ANDAL S. AMPATUAN, BIMBO Q. SINSUAT, SR., IBRAHIM B.
BIRUAR, ALONTO B. DAUDIE, MICHAEKL B. DIRANGAREN,
ASNAWIS S. LIMBONA, RUSSMAN Q. SINSUAT, ZALNUDIN M.
ABUTAZIL, DATUWATA U. ADZIS, BORGIVA T. DATU-MANONG,
FREDDIE G. MANGUDADATU and ABBAS A. PENDATUN,
JR., petitioners, vs. COMMISSION ON ELECTIONS, DATU
ZACARIA A. CANDAO, DATU NORODIN M. MATALAM, KHARIS
M. BARAGUIR, PAGRAS D. BIRUAR, CAHAR PENDAT IBAY,
PATULA O. TIOLO, MARHOMSAL K. LAUBAN, MENTANG T.
KABAGANI, ELIZABETH C. MASUKAT, GAPOR A. RAJAMUDA,
SAID S. SALIK and LINTATO G. SANDIGAN, respondents.

DECISION
PARDO, J.:

The case is a petition for certiorari and prohibition under Rule 64 in

relation to Rule 65 of the Revised Rules of Court with preliminary injunction or
temporary restraining order to nullify and set aside two (2) orders dated July
[1]

26, 2001 and August 28, 2001 of the Commission on Elections (COMELEC),
[2] [3]

ordering a random technical examination of pertinent election paraphernalia

and other documents in several municipalities in
the province of Maguindanao to determine a failure of elections.
Petitioners and respondents were candidates for the provincial elective
[4] [5]

positions in the province of Maguindanao in the May 14, 2001 election.

Petitioner Ampatuan and respondent Candao contended for the position of
governor. The slate of Ampatuan emerged as winners as per election returns.
On May 23, 2001, respondents filed a petition with the Comelec for the
annulment of election results and/or declaration of failure of elections in [6]

several municipalities in the province of Maguindanao. They claimed that the

[7]

elections were completely sham and farcical. The ballots were filled-up en
masse by a few persons the night before election day, and in some precincts,
the ballot boxes, official ballots and other election paraphernalia were not
delivered at all. [8]

On May 25, 2001, the Comelec issued an order suspending the

proclamation of the winning candidates for congressman of the second
district, governor, vice-governor and board members of Maguindanao. [9]

On May 30, 2001, petitioners filed with the Comelec a motion to lift the
suspension of proclamation. On June 14, 2001, the Comelec issued an order
[10]

lifting the suspension of proclamation of the winning candidates for governor,

vice-governor and board members of the first and second districts.
Consequently, the Provincial Board of Canvassers proclaimed petitioners
[11]

winners. [12]

On June 16, 2001, respondents filed with the Supreme Court a petition to
set aside the Comelec order dated June 14, 2001, and preliminary injunction
to suspend the effects of the proclamation of the petitioners. Meantime, [13]

petitioners assumed their respective offices on June 30, 2001. On July 17,
2001, the Court resolved to deny respondents petition. [14]

Petitioners assumption into office notwithstanding, on July 26, 2001,

the Comelec ordered the consolidation of respondents petition for declaration
of failure of elections with SPA Nos. 01-244, 01-332, 01-360, 01-388 and 01-
390. The COMELEC further ordered a random technical examination on four
[15]

to seven precincts per municipality on the thumb-marks and signatures of the

voters who voted and affixed in their voters registration records, and forthwith
directed the production of relevant election documents in these municipalities.
[16]

On August 28, 2001, the Comelec issued another order directing the
[17]

continuation of the hearing and disposition of the consolidated SPAs on the

failure of elections and other incidents related thereto. It likewise ordered the
continuation of the technical examination of election documents as authorized
in the July 26, 2001 order. On September 27, 2001, the Comelec issued an
order outlining the procedure to be followed in the technical examination. [18]

On September 26, 2001, petitioners filed the present petition. They [19]

claimed that by virtue of their proclamation pursuant to the June 14,

2001 order issued by the Comelec, the proper remedy available to
respondents was not a petition for declaration of failure of elections but an
election protest. The former is heard summarily while the latter involves a full-
blown trial. Petitioners argued that the manner by which the technical
examination is to be conducted would defeat the summary nature of a
[20]

petition for declaration of failure of elections.

On October 5, 2001, petitioners filed a motion reiterating their request for
[21]

a temporary restraining order to enjoin the implementation of the July 26,

2001 and August 28, 2001 Comelec orders.
On October 22, 2001, the Comelec issued an order suspending the
implementation of the two (2) assailed orders, the pertinent portion of which
reads as follows:

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

comment within ten (10) days from notice, hereby suspends implementation of its
orders of July 26, 2001 and August 28, 2001 in deference to the resolution of said
court.
[22]

However, on November 13, 2001, the Comelec issued another order lifting
the suspension. [23]

On November 20, 2001, we issued a temporary restraining order, to wit:

xxx the Court Resolved to (a) ISSUE the TEMPORARY RESTRAINING ORDER
prayed for, effective immediately and continuing until further orders from this Court,
ordering the respondent Commission on Elections to CEASE and DESIST from
ordering the lifting of the suspended implementation orders dated 26 July 2001 and 28
August 2001 in SPA No. 01-323 xxx. [24]

The main issue to be resolved is whether the Commission on Elections

was divested of its jurisdiction to hear and decide respondents petition for
declaration of failure of elections after petitioners had been proclaimed.
We deny the petition.
Petitioners submit that by virtue of their proclamation as winners, the only
remedy left for private respondents is to file an election protest, in which case,
original jurisdiction lies with the regular courts. Petitioners cited several rulings
that an election protest is the proper remedy for a losing candidate after the
proclamation of the winning candidate. [25]

However, the authorities petitioners relied upon involved pre-proclamation

controversies. In Loong v. Commission on Elections, we ruled that a pre-
[26]

proclamation controversy is not the same as an action for annulment of

election results, or failure of elections. These two remedies were more
specifically distinguished in this wise:

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

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

the case at bar, we cannot assume that petitioners proclamation and

assumption into office on June 30, 2001, was legal precisely because the
conduct by which the elections were held was put in issue by respondents in
their petition for annulment of election results and/or declaration of failure of
elections.
Respondents allegation of massive fraud and terrorism that attended the
May 14, 2001 election in the affected municipalities cannot be taken lightly as
to warrant the dismissal of their petition by the Comelec on the simple pretext
that petitioners had been proclaimed winners. We are not unmindful of the fact
that a pattern of conduct observed in past elections has been the pernicious
grab-the-proclamation-prolong-the-protest slogan of some candidates or
parties such that even if the protestant wins, it becomes a mere pyrrhic victory,
i.e., a vindication when the term of office is about to expire or has expired. xxx
We have but to reiterate the oft-cited rule that the validity of a proclamation
may be challenged even after the irregularly proclaimed candidate has
assumed office. [29]

Petitioners likewise rely on the case of Typoco, Jr. v. Commission on

Elections. This Court held that Comelec committed no grave abuse of
[30]

discretion in dismissing a petition for declaration of failure of elections.

However, we made a pronouncement that the dismissal was proper since the
allegations in the petition did not justify a declaration of failure of
elections. Typocos relief was for Comelec to order a recount of the votes cast,
on account of the falsified election returns, which is properly the subject of an
election contest. [31]

Respondents petition for declaration of failure of elections, from which the

present case arose, exhaustively alleged massive fraud and terrorism that, if
proven, could warrant a declaration of failure of elections. Thus:

4.1. The elections in at least eight (8) other municipalities xxx were completely sham
and farcical. There was a total failure of elections in these municipalities, in that in
most of these municipalities, no actual voting was done by the real, legitimate voters
on election day itself but voting was made only by few persons who prepared in
advance, and en masse, the ballots the day or the night before election and, in many
precincts, there was completely no voting because of the non-delivery of ballot boxes,
official ballots and other election paraphernalia; and in certain municipalities, while
some semblance of voting was conducted on election day, there was widespread
fraudulent counting and/or counting under very irregular circumstances and/or
tampering and manufacture of election returns which completely bastardized the
sovereign will of the people. These illegal and fraudulent acts of desecration of the
electoral process were perpetrated to favor and benefit respondents. These acts were,
by and large, committed with the aid and/or direct participation of military elements
who were deployed to harass, intimidate or coerce voters and the supporters or
constituents of herein petitioners, principally, of re-
electionist Governor Datu Zacaria Candao. Military units and personnel visibly,
openly and flagrantly violated election laws and regulations by escorting people or
elements engaged in the illegal, advanced preparation of ballots and election returns
and, at times, manning the polling places or precincts themselves and/or staying
within the prohibited radius. Ballot boxes and other election paraphernalia were
brought not to the precincts or voting centers concerned but somewhere else where
massive manufacture of ballots and election documents were perpetrated. [32]

The Comelec en banc has the authority to annul election results and/or
declare a failure of elections. Section 6 of the Omnibus Election Code further
[33]

provides that:

Section 6. Failure of election.- If, on account of force majeure, violence, terrorism,

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

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

xxx before Comelec can act on a verified petition seeking to declare a failure of
election, two (2) conditions must concur: first, no voting has taken place in the
precincts concerned on the date fixed by law or, even if there was voting, the election
nevertheless resulted in a failure to elect; and second, the votes cast would affect the
result of the election. In Loong vs. Commission on Elections, this Court added that the
cause of such failure of election should have been any of the following: force majeure,
violence, terrorism, fraud or other analogous cases.[34]

In another case, we ruled that while it may be true that election did take
place, the irregularities that marred the counting of votes and the canvassing
of the election returns resulted in a failure to elect. [35]
 In the case at bar, the Comelec is duty-bound to conduct an investigation
as to the veracity of respondents allegations of massive fraud and terrorism
that attended the conduct of the May 14, 2001 election. It is well to stress that
the Comelec has started conducting the technical examination on November
16, 2001. However, by an urgent motion for a temporary restraining order filed
by petitioners, in virtue of which we issued a temporary restraining order
on November 20, 2001, the technical examination was held in abeyance until
the present. In order not to frustrate the ends of justice, we lift the temporary
restraining order and allow the technical examination to proceed with
deliberate dispatch.
WHEREFORE, the petition is hereby DISMISSED. The temporary
restraining order issued on November 20, 2001 is DISSOLVED. The
Commission on Elections is directed to proceed with the hearing of the
consolidated petitions and the technical examination as outlined in
its September 27, 2001 order with deliberate dispatch. No costs.
SO ORDERED.

.[G.R. No. 166229. June 29, 2005]

MS. BAIRANSALAM LAUT LUCMAN, petitioner, vs. COMMISSION ON

ELECTIONS and MOSAMA M. PANDI, respondents.

DECISION
AUSTRIA-MARTINEZ, J.:

Petitioner Bairansalam Laut Lucman and private respondent Mosama M.

Pandi were mayoralty candidates in Poona-Bayabao, Lanao del Sur, during
the May 10, 2004 elections.
During the canvassing of votes, private respondent objected to the
inclusion of ten election returns, although only six of these are subjects of the
present controversy, to wit:[1]

Election Returns
Precinct Number Objection/s
Number
1) The election returns is
1A 01201094 obviously manufactured
and/or falsified
 2) It is not authentic
3) It contains alterations
1) Obviously manufactured
1B/C 01201091

1) Obviously manufactured
3A 01201095
2) Incomplete

1) Obviously manufactured
8A 01201093
and/or falsified
2) Incomplete
1) The election returns is
8B/8C 01201106
obviously manufactured
2) It is incomplete, it
lacks statistical data
1) Obviously manufactured
14A/14B 01201096

The Municipal Board of Canvassers (Board) overruled private respondents

objections on the disputed returns, [2] and proclaimed petitioner as the winning
candidate, as shown in the Certificate of Canvass of Votes and Proclamation
of the Winning Candidates for Municipal Offices, signed on May 19, 2004.
[3]
Petitioner won over private respondent by a margin of 16 votes.
Private respondent filed with Commission on Elections (COMELEC) an
appeal from the ruling of the Board, docketed as SPC 04-184, alleging
massive fraud and irregularities in the conduct of the elections, e.g., force,
threat and intimidation were employed on the voters, double voting,
substitution of voters, snatching of ballots, padding of ballots and existence of
flying voters.[4] Private respondent also contended that the contested election
returns should have been excluded from the canvass, and that the Board was
precipitate in proclaiming petitioner as the winning candidate, as private
respondent has manifested on record that he is intending to appeal the
Boards ruling.[5]Private respondent admits that the exclusion of the contested
returns is a ground for election protest, but he also argues that the COMELEC
may go beyond the face of the returns to determine whether the elections in
the precincts involved are a sham.
Private respondent also filed a motion to annul proclamation and/or to
suspend the effects of proclamation pendente lite.[6]
 Petitioner filed his Comment and/or Answer to the appeal, arguing that the
grounds relied upon by private respondent are not proper in a pre-
proclamation controversy but in an election protest. Petitioner also argues that
her proclamation is valid; the petition is defective for failure to include
indispensable parties; and that private respondent failed to inform the Board
that he is appealing its ruling, as required by Section 20 of Republic Act No.
7166, or The Electoral Reforms Law of 1991.[7]
On June 16, 2004, a hearing on the appeal was held, wherein counsel for
petitioner and private respondent, and several Board of Election Inspectors of
Poona-Bayabao appeared, and Ms. Monera P. Macadato, Poll Clerk of
Precinct 3A was called to the witness stand. [8] Presiding Commissioner
Resurreccion Z. Borra, for the First Division, then issued an order on the same
date, requiring the parties to submit their simultaneous memoranda.[9]
On September 30, 2004, the COMELECs First Division issued the
assailed order, with the following dispositive portion:

In order therefore to resolve the issues raised in this Appeal the Commission (FIRST
DIVISION) hereby ORDERS the document examiners of the Commission on
Elections to conduct an examination of the List of Voters with Voting Record of the
precincts involved in this case as well as the VRRs pertaining to the contested
precincts in the Municipality of Poonabayabao to determine whether or not actual
voting by the duly registered voters of said precincts were conducted during the
elections of May 10, 2004;

Considering that we have annulled the proclamation of BAIRAMSALAM (sic) LAUT

LUCMAN as duly elected mayor of Poonabayabao, Lanao del Sur, it is hereby
ordered that the Vice-Mayor of said Municipality assumed (sic) the position pursuant
to the provisions of the Local Government Code, until the final resolution of this
petition.

SO ORDERED.[10]

Commissioner Virgilio O. Garcillano dissented to the majority opinion on

the ground that the petition involves issues proper to an election protest and
not a pre-proclamation controversy.[11]
Petitioner moved to reconsider the assailed Order, and in an Order dated
October 13, 2004, Commissioner Borra ordered and certified the motion for
reconsideration to the Commission en banc. [12] Thereafter, the Commission en
banc, in an Order dated October 14, 2004, issued a temporary restraining
order and a status quo ante order, directing the parties to maintain the status
prevailing before the issuance of the September 30, 2004 Resolution.
On December 14, 2004, the COMELEC en banc issued the assailed
Resolution denying petitioners motion for lack of merit. [13] The dispositive
portion of said Resolution reads:

WHEREFORE, in view of the foregoing, the Commission (en banc) RESOLVED, as

it hereby RESOLVES to DENY the Motion for Reconsideration for lack of merit. The
Order of the Commission (First Division) dated 30 September 2004 is hereby
AFFIRMED. Accordingly, in implementation of the directive therein, the document
examiners of the Commission on Elections are hereby ordered to conduct an
examination of the List of Voters with Voting Record of the precincts involved in this
case as well as the VRRs pertaining to the contested precincts in the Municipality of
Poonabayabao to determine whether or not actual voting by the duly registered voters
of said precincts were conducted during the elections of May 10, 2004, and thereafter
submit a report thereon.

The Temporary Restraining Order/Status Quo Ante Order dated 14 October 2004 is
hereby lifted.

SO ORDERED.[14]

On December 17, 2004, Commissioner Mehol Sadain issued

a Constancia protesting his lack of participation in the En Banc Resolution.
Commissioner Sadain stated that although he was out on official business at
the time the Resolution was routed to his office, he should have been allowed
to vote thereon, or at least, informed of the urgency of its promulgation so that
he may cast his vote or allow its promulgation without his signature.[15]
Petitioner then filed the present special civil action for certiorari and
prohibition with prayer for the issuance of temporary restraining
order/preliminary injunction, based on the following grounds:

PUBLIC RESPONDENT ACTED WITHOUT, IN EXCESS OR WITH GRAVE ABUSE

OF DISCRETION IN ANNULLING THE PROCLAMATION OF THE PETITIONER.

PUBLIC RESPONDENT ACTED IN EXCESS OR WITH GRAVE ABUSE OF

DISCRETION IN ORDERING THE DOCUMENT EXAMINERS TO EXAMINE THE
LIST OF VOTERS WITH VOTING RECORDS AND THE VRRs.

PUBLIC RESPONDENT ACTED WITHOUT, IN EXCESS OR WITH GRAVE OF

DISCRETION (sic) IN TAKING COGNIZANCE OF THE APPEAL WITHOUT THE
INDISPENSABLE PARTIES IMPLEADED AND WITHOUT THE MANDATORY
REQUIREMENTS OF SECTION 20, RA 7166 COMPLIED.

PUBLIC RESPONDENT ACTED WITHOUT JURISDICTION IN TAKING

COGNIZANCE OF THE MOTION TO RECONSIDER THE CHALLENGED
INTERLOCUTORY ORDER OF SEPTEMBER 30, 2004.[16]

The pivotal issue in this case is whether the appeal from the Board of
Canvassers to the COMELEC (First Division) interjected by private
respondent makes a case for a pre-proclamation controversy.
Section 241 of the Omnibus Election Code defines a pre-proclamation
controversy as any question pertaining to or affecting the proceedings of the
board of canvassers which may be raised by any candidate or by any
registered political party or coalition of political parties before the board or
directly with the Commission, or any matter raised under Sections 233, 234,
235 and 236 in relation to the preparation, transmission, receipt, custody and
appreciation of the election returns.
Under Section 243 of the same Code, the issues that may be raised in a
pre-proclamation controversy, are as follows:

SEC. 243. Issues that may be raised in pre-proclamation controversy. - The following
shall be proper issues that may be raised in a pre-proclamation controversy:

(a) Illegal composition or proceedings of the board of canvassers;

(b) The canvassed election returns are incomplete, contain material defects, appear to
be tampered with or falsified, or contain discrepancies in the same returns or in other
authentic copies thereof as mentioned in Sections 233, 234, 235, and 236 of this Code;

(c) The election returns were prepared under duress, threats, coercion, or intimidation,
or they are obviously manufactured or not authentic; and

(d) When substitute or fraudulent returns in controverted polling places were

canvassed, the results of which materially affected the standing of the aggrieved
candidate or candidates.

The foregoing enumeration is restrictive and exclusive.[17]

In the present case, the objections initially raised by private respondent
before the Municipal Board of Canvassers were proper in a pre-proclamation
controversy, i.e., the election returns is obviously manufactured and/or
falsified, it is not authentic, it contains alterations. However, in his appeal to
the COMELEC, he further alleged that the elections held in the precincts
clustered in the Pooni Lomabao Central Elementary were tainted with massive
election irregularities. According to private respondent, there were massive
substitution of voters, snatching of ballots from the voters by people identified
with the Lucman who filled them up against the will of the voters, force or
coercion, threats, intimidation, casting of votes by double registrants in the
same precincts (double entry), and flying voters [18] Private respondent also
alleged that the counting of votes on May 11, 2004, were not prepared
simultaneously with the appreciation of the ballots/counting of votes, in
violation of Section 44 of COMELEC Resolution No. 6667 (March 16, 2004).
Also, private respondents watchers were threatened by petitioners watchers,
forcing them to leave the counting room, and that the Board of Election
Inspectors merely copied the entries on the tally boards and records of votes
made by petitioners watchers. Finally, private respondent alleged that the
denial to his objections to the contested election returns were not made by the
Municipal Board of Canvassers in the prescribed form, and that despite his
manifestation that he will appeal the Boards ruling on the returns, it proceeded
with petitioners proclamation.[19]
Obviously, the foregoing allegations pertain not only to the preparation,
transmission, receipt, custody and appreciation of the election returns, but to
the conduct of the elections as well.
Pre-proclamation controversies are limited to challenges directed against
the Board of Canvassers and proceedings before said Board relating to
particular election returns to which private respondent should have made
specific verbal objections subsequently reduced to writing. A pre-proclamation
controversy is limited to an examination of the election returns on their face.
As a rule, the COMELEC is limited to an examination of the election returns
on their face.[20] It is beyond the COMELECs jurisdiction to go beyond the face
of the returns or investigate election irregularities.[21]
The proceedings in a pre-proclamation controversy are summary in
nature.[22] Reception of evidence aliunde, such as the List of Voters with Voting
Record and the VRRs, is proscribed.[23] Issues such as fraud or terrorism
attendant to the election process, the resolution of which would compel or
necessitate the COMELEC to pierce the veil of election returns which appear
to be prima facie regular, on their face, are anathema to a pre-proclamation
controversy. Such issues should be posed and resolved in a regular election
protest, which is within the original jurisdiction of the Regional Trial Court
(RTC).[24] In a regular election protest, the parties may litigate all the legal and
factual issues raised by them inasmuch detail as they may deem necessary or
appropriate.[25]
 In Macabago vs. COMELEC,[26] the Court reiterated:

That the padding of the List of Voters may constitute fraud, or that the Board of
Election Inspectors may have fraudulently conspired in its preparation, would not be a
valid basis for a pre-proclamation controversy either. For, whenever irregularities,
such as fraud, are asserted, the proper course of action is an election protest.

Such irregularities as fraud, vote-buying and terrorism are proper grounds in an

election contest but may not as a rule be invoked to declare a failure of election and to
disenfranchise the greater number of the electorate through the misdeeds, precisely, of
only a relative few. Otherwise, elections will never be carried out with the resultant
disenfranchisement of the innocent voters, for the losers will always cry fraud and
terrorism (GAD vs. COMELEC, G.R. No. 78302, May 26, 1987, 150 SCRA 665).

Hence, as correctly argued by petitioner, private respondents cause of

action before the COMELEC is proper for an election protest and not a pre-
proclamation controversy, and the COMELEC committed grave abuse of
discretion in entertaining private respondents petition/appeal. Consequently,
all subsequent actions by the COMELEC in relation to private respondents
appeal are null and void, and correctible by the present special civil action
for certiorari.
Following the disposition of the Court in Macabago vs. COMELEC,[27] the
dismissal of private respondents petition/appeal before the COMELEC is
without prejudice to the filing of a regular election protest before the proper
RTC, the period for the filing of which is deemed suspended by the filing of
private respondents petition/appeal.
In light of the foregoing ruling, the Court need not delve on the other
issues posed by petitioner as these necessarily have been rendered moot and
academic[28] thereby.
WHEREFORE, the petition is GRANTED. The assailed Order dated
September 30, 2004 of the First Division and Resolution En Banc dated
December 14, 2004 are SET ASIDE on ground of lack of jurisdiction. Private
respondents appeal to the First Division and the appeal to the COMELEC En
Banc are DISMISSED, without prejudice to the filing of a regular election
protest, the period for the filing of which is deemed suspended by the filing of
the petition before the COMELEC until the finality of herein decision.
The proclamation of petitioner by the Municipal Board of Canvassers is
maintained and petitioner should be allowed to assume her office as mayor of
Poona-Bayabao, Lanao del Sur.
 SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago,
Sandoval-Gutierrez, Carpio, Corona, Carpio-Morales, Callejo, Sr., Azcuna,
Tinga, Chico-Nazario, andGarcia, JJ., concur.