G.R. No. L-55513. June 19, 1982.

]
VIRGILIO SANCHEZ, petitioner vs. COMMISSION ON ELECTIONS, respondent.
[G.R. No. L-55642. June 19, 1982.]
ARMANDO BILIWANG, petitioner, vs. COMMISSION ON ELECTIONS, respondent.
SYNOPSIS
In the local elections held on January 30, 1980, Biliwang, a Kilusang Bagong Lipunan (KBL)
candidate, was proclaimed winner for the office of Municipal Mayor of San Fernando, Pampanga
as against Sanchez, a Nacionalista Party (NP) candidate. Sanchez filed with the Commission on
Elections (Comelec) a Petition to declare null and void the local elections in San Fernando due to
alleged large scale terrorism. The COMELEC, reconsidering its earlier resolution denying the
Petition, ordered the annulment of the local elections held. on January 30, 1980 in San
Fernando, consequently, the annulment and setting aside of the proclamation of Biliwang and
other municipal officials; and certified to the President/Prime Minister and the Batasang
Pambansa the failure of election threat, based on a finding that threats and coercion or
terrorism and irregularities were committed after the elections or specifically the counting of
votes and in the preparation of the election return against teachers-members of the Citizens
Election Committees. Sanchez sough reconsideration of that portion of the COMELEC Resolution
which certified the failure of election to the President/Prime Minister and the Batasang
Pambansa, and prayed that a special election be called. Biliwang, also moving for
reconsideration, alleged that COMELEC has no authority to annul the entire municipal election,
prayed that he be proclaimed on the basis of the undisputed returns. Both were denied by the
COMELEC. Hence, the two separate petitions filed by Sanchez and Biliwang, respectively, with
the Supreme Court. cdasia
The Supreme Court upheld the power and prerogative of the COMELEC to annul an election
where the will of the voters has been defeated, as well as to call for a special election where
widespread terrorism, whether before or after election, has been proven resulting in a failure to
elect, without need of recourse to the President and to the Batasang Pambansa for the
enactment of remedial legislation.
SYLLABUS
1.
CONSTITUTIONAL LAW; 1973 CONSTITUTION; COMMISSION ON ELECTIONS;
POWER TO ANNUL AN ELECTION; BASIS THEREOF. It may be true that there is no specific
provision vesting the COMELEC with authority to annul an election. However, there is no doubt
either relative to COMELEC's extensive powers. Under the Constitution, the COMELEC is tasked
with the function to "enforce and administer all laws relative to the conduct of elections" (Article
XII (c), Section 2(1), 1973 Constitution). The 1978 Election Code (PD No. 1296) accords it
exclusive charge of the enforcement and administration of all laws relative to the conduct of
elections for the purpose of insuring file, orderly and honest elections (Sec. 185). In other
words, in line with the plenitude of its powers and its function to protect the integrity of
elections under the 1973 Constitution and the 1978 Election Code, the COMELEC must be
deemed possessed of authority to annul elections where the will of the voters has been
defeated and the purity of elections sullied. It would be unreasonable to state that the COMELEC
has a legal duty to perform and at the time deny it the wherewithal to fulfill that task.
]2.
ID., ID., ID., ID.; ID.; CASE AT BAR. The COMELEC found that the local election in
San Fernando, Pampanga, was vitiated by post-election widespread and pervasive terrorism and
resulted in the submission of "gunpoint or coerced" returns. In other words, there were no
election returns worthy of faith and credit and from which could be gauged a fair and true
expression of the popular will. Its action, therefore, of rejecting all election returns and annulling
the local elections thereat was but in keeping with its constitutionally ordained power of
administration and enforcement of elections laws and its main objective to insure free, orderly
and honest elections.
3.
ID.; ID.; ID.; POWER TO CALL A SPECIAL ELECTION; BASIS THEREOF. Under the
regime of the 1935 Constitution and the former Revised Election Code (Republic Act No. 180, as
amended), there was no constitutional nor statutory precept that empowered the COMELEC to

annul an election and/or to direct a new election after one had already been held. Clearly, under
Section 5 of Batas Pambansa Blg. 52, when the election "results in a failure to elect,'' the
COMELEC may call for the "holding or continuation of the election as soon as practicable." We
construe this to include the calling of a special election in the event of a failure to elect in order
to make the COMELEC truly effective in the discharge of its functions. In fact, Section 8 of the
1978 Election Code specifically allows the COMELEC to call a special election for the purpose of
filing a vacancy or a newly created position, as the case may be. There should be no reason,
therefore, for not allowing it to call a special election when there is a failure to elect.
4.
ID.; ID.; ID.; ID.; GROUNDS FOR EXERCISE OF POWER INCLUDE POST-ELECTION
TERRORISM; CASE AT BAR. It would be to circumscribe the power of the COMELEC to ensure
free, orderly and honest elections if We were to hold that the COMELEC authority to call for the
holding of the election is applicable only when the causes therefore occurred before the
elections; in other words, that the grounds for calling special elections do not include postelection terrorism. That interpretation would not only hamper the effectiveness of the COMELEC
in the discharge of its functions but it would also, in case of failure to elect due to post-election
terrorism, delay the opportunity to the voters to cast their votes at the earliest possible time.
The electorate should not be disenfranchised for long and the COMELEC should not be
presented from taking the necessary steps to complete the elections. After all, the casting of
ballots is not the only act constitutive of elections. An election is not complete until proclamation
has been made.
5.
ADMINISTRATIVE LAW; MUNICIPAL OFFICIALS; RIGHT TO HOLD-OVER OF ELECTIVE
OFFICIALS; BELATEDLY RAISED IN CASE AT BAR. Biliwang raises for the first time on review
his right to a "hold-over." Not only has this been belatedly raised but the fact also remains that
his elective term expired on December 31, 1975 and that he already held-over by virtue of PD
No. 1576. He ceased to hold-over, however, when elections were held on January 30, 1980,
besides the fact that the President has already appointed an officer-in-charge in San Fernando,
Pampanga.
AQUINO, J ., concurring and dissenting:
1.
CONSTITUTIONAL LAW; COMMISSION ON ELECTIONS; EMPOWERED TO ANNUL AN
ELECTION. Justice Aquino concurs in the result in the Biliwang case. He agrees that the
COMELEC is invested with the power to annul an election for municipal officials on the ground of
post-election terrorism.
2.
ID.; ID.; ID.; HOLDING OF SPECIAL ELECTION NOT PROPER WHERE THERE IS
FAILURE TO COUNT THE VOTES CAST. Justice Aquino dissents from the ruling in the
Sanchez case that the COMELEC can order the holding of a special election in San Fernando,
Pampanga, He agrees with the COMELEC and the Solicitor General that the situation in this
case, where an election was legally held for the municipal officials of San Fernando but the
votes could not be counted because of terrorism and massive substitution of fake ballots for the
genuine ballots, is not covered by Section 5 of Batas Pambansa Blg. 52 and Section 7 of the
Election Code of 1978, Presidential Decree No. 1296. That situation is not a case of failure to
elect but of failure to count the votes cast or the impossibility of ascertaining who were elected.
DECISION
The Resolution of the Commission on Elections, dated May 15, 1980, in Pre- Proclamation Case
No. 41, entitled Virgilio Sanchez vs. Mayor Armando P. Biliwang and the Municipal Board of
Canvassers of San Fernando, Pampanga, is challenged in these consolidated Petitions for
Certiorari. LLpr
In the local elections held on January 30, 1980, Virgilio Sanchez was the official candidate of the
Nacionalista Party (NP) for Municipal Mayor of San Fernando, Pampanga, while Armando
Biliwang was the Kilusang Bagong Lipunan's (KBL) official candidate for the same position. The
latter was proclaimed winner by the Municipal Board of Canvassers of said town.
On February 1, 1980, Sanchez filed with the Commission on Elections a Petition to declare null
and void the local elections in San Fernando due to alleged large scale terrorism. On the same
day, the COMELEC denied the Petition for lack of merit. Sanchez moved for reconsideration. On

February 8, 1980, the COMELEC recalled its Resolution and required Biliwang and the Municipal
Board of Canvassers to answer. Hearings were conducted thereafter.
On May 15, 1980, the COMELEC issued the challenged Resolution, the dispositive portion of
which reads:
"WHEREFORE, the Commission hereby orders the following:
"1.
The annulment of the election held on January 30, 1980 of the local government
officials in San Fernando, Pampanga, consequently, the annulment and setting aside of the
proclamation of respondent Armando P. Biliwang and other municipal officials thereat; and
"2.
To certify to the President/Prime Minister and the Batasang Pambansa the failure of
election in San Fernando, Pampanga, so that remedial legislation may be enacted and that
pending such enactment, the President/Prime Minister may appoint the municipal officials of San
Fernando, Pampanga."
The aforesaid Resolution was prompted by the COMELEC's findings as follows:
"However, after the voting was over the terrorism and irregularities were committed as
aforementioned. There is strong and sufficient evidence to support the charge that in the
preparation of election returns, the teacher-members of the Citizens Election Committees
(CEC's) were threatened and coerced into making spurious election returns without regard to
the genuine ballots in the ballot boxes. Policemen, armed goons and other persons all in
obvious conspiracy 'herded' the teacher-members of the CEC's to the Town Hall of San
Fernando, where the ballot boxes were forced open and the contents thereof substituted with
pre-prepared ballots favoring respondent Biliwang. In fact, some of the genuine ballots replaced
with those fake ballots were produced at the hearing by the teachers who managed to 'save' or
'salvage' them secretly, together with some stubs detached from the fake ballots which upon
comparison appeared wider than the genuine ones (Exhs. F & G; N, N-1 to N-31: O, O-1 to O16).
"The operation involving the use of force and coercion was so open and pervasive that after
voting a preponderant number of the voting centers were placed under the control of the
terrorists. And the Town Hall of San Fernando was virtually converted into a 'concentration
camp', wherein the teacher-members of the CEC's for several hours were at the mercy of the
armed goons who were bent to ensure the victory of the incumbent mayor at the time i.e.
respondent Biliwang, at all costs. No watchers were allowed inside; the relatives and friends of
the teachers were kept outside until the early morning of January 31, 1980." 1
The COMELEC then concluded:
"As pointed out above, it is the firm finding and conclusion of the Commission that there was
total failure of election in San Fernando, Pampanga, not because of threats and coercion, or
terrorism inflicted on the voters before or during election day as in the Antonio Case, but for the
threats and coercion or terrorism and irregularities committed AFTER the elections or specifically
the counting of the votes and in the preparation of the election returns upon the teachermembers of the Citizens Election Committees (CEC's) without regard to the genuine ballots in
the ballot boxes which were substituted with pre-prepared ballots favoring respondent
Biliwang." 2
Sanchez sought reconsideration of that portion of the COMELEC Resolution which certified the
failure of election in San Fernando to the President/Prime Minister and the Batasang Pambansa,
and prayed instead that the COMELEC call a special election in San Fernando. Biliwang, for his
part, also moved for reconsideration on the ground that the COMELEC has no authority to annul
the entire municipal election. He prayed that he be proclaimed on the basis of the undisputed
returns. Reconsideration was denied by the COMELEC in both instances.
On November 19, 1980, Sanchez filed a Petition for Certiorari with this Court, docketed as G. R.
No. 55513, wherein he seeks a modification of that portion of the COMELEC Resolution of May
15, 1980 refusing to call a special election. He alleges that Section 5 of Batas Pambansa Bilang
52 specifically enjoins the COMELEC to call a special election if the election results in a failure to
elect, and that by refusing to do so, the Commission has abdicated its duty.
On December 6, 1980, Biliwang instituted, also with this Court, a Petition for Certiorari,
Prohibition and Mandamus, docketed as G. R. No. 55642, assailing the same COMELEC
Resolution and alleging that said body has no power to annul an entire municipal election

because: (a) Article XII-C, Section 2(1) of the Constitution grants to the COMELEC only the
power to enforce and administer all laws relative to the conduct of elections; (b) Section 175 of
the 1978 Election Code gave the power to said body to suspend and annul a proclamation only;
and (c) Section 5 of Batas Pambansa Bilang 52 does not grant it the power to annul municipal
elections. He further asserts that the COMELEC must make a proclamation on the basis of
unchallenged returns when these returns represent a majority of the total election returns.
These two Petitions were ordered consolidated and were heard by the court en banc on July 28,
1981. Required to submit Memoranda, Sanchez manifested that he was waiving the filing of the
same as his Petition had exhaustively discussed and ventilated the facts and issues involved and
that he was adopting his Petition as his Memorandum. Biliwang and the Solicitor General
submitted their respective Memoranda, the former on August 7, 1981 and the latter on
September 4, 1981. llcd
The issues posed are:
1)
Does the COMELEC have the power to annul an entire municipal election on the
ground of post-election terrorism?
2)
Does the COMELEC have the authority to call for a special election?
Power to Annul an Election
Biliwang asserts that COMELEC lacks the power to annul elections of municipal officials
particularly so because, under Section 190 of the 1978 Election Code, the power to try election
contests relative to elective municipal officials is vested in Courts of First Instance.
Be that as it may, it should be recalled that what COMELEC actually rejected were the sham and
illegal returns in San Fernando, and that the kind of fraud and terrorism perpetrated thereat was
sufficient cause for voiding the election as a whole. Besides, COMELEC is empowered motu
proprio to suspend and annul any proclamation as, in fact, it did annul Biliwang's proclamation:
"SEC. 175.
Suspension and annulment of proclamation. The Commission shall be the
sole judge of all pre-proclamation controversies and any of its decisions, orders or rulings shall
be final and executory. It may, motu proprio or upon written petition, and after due notice and
hearing order the suspension of the proclamation of a candidate-elect or annul any
proclamation, if one has been made, on any of the grounds mentioned in Sections 172, 173 and
174 hereof."
Biliwang's claim that he should be proclaimed on the basis of undisputed returns is devoid of
merit in the light of COMELEC's categorical findings that it was impossible to purge the illegal
from the valid returns.
It may be true that there is no specific provision vesting the COMELEC with authority to annul
an election. However, there is no doubt either relative to COMELEC's extensive powers. Under
the Constitution, the COMELEC is tasked with the function to "enforce and administer all laws
relative to the conduct of elections." 3 The 1978 Election Code (PD No. 1296) accords it
exclusive charge of the enforcement and administration of all laws relative to the conduct of
elections for the purpose of insuring free, orderly and honest elections (Sec. 185).
The COMELEC found that the local election in San Fernando, Pampanga, was vitiated by postelection widespread and pervasive terrorism and resulted in the submission of gun-point or
coerced" returns. In other words, there were no election returns worthy of faith and credit and
from which could be gauged a fair and true expression of the popular will. Its action, therefore,
of rejecting all election returns and annulling the local elections thereat was but in keeping with
its constitutionally ordained power of administration and enforcement of election laws and its
main objective to insure free, orderly and honest elections. As it has been rightly said "an
election return prepared at the point of a gun is no return at all; it is not one notch above a
falsified and spurious return." 4 The Comelec has the power to reject returns when in its opinion
they were illegal and not authentic. 5 In fact, it has the duty to disallow obviously false or
fabricated returns 6 as a falsified or spurious return amounts to no return at all. 7
Admittedly, in Abes vs. Comelec, 21 SCRA 1252 (1967), this Court had ruled that the COMELEC
is bereft of power to annul an election or to direct a new one. Then, we said:
"Enforcement and administration of all election laws by Comelec do not include the power to
annul an election which may not have been free, orderly and honest, as such power is merely
preventive, and not curative, and if it fails to accomplish that purpose, it is not for such body to

cure or remedy the resulting evil, but for some other agencies of the Government: the Senate
Electoral Tribunal, the House Electoral Tribunal or the courts, as the case may be, who have the
power to decide election contests (Nacionalista Party vs. Comelec, 85 Phil. 149, 155-156)."
That case was decided, however, under the aegis of the 1935 Constitution and the former
Revised Election Code. 8 Since then, the powers of the COMELEC have been considerably
expanded. It is now "the sole judge of all contests relating to the elections, returns, and
qualifications of all Members of the Batasang Pambansa and elective provincial and city
officials", 9 where before the power to decide election contests was lodged with the Senate
Electoral Tribunal, the House Electoral Tribunal, or the Courts, as the case may be. 10
In other words, in line with the plenitude of its powers and its function to protect the integrity of
elections, the COMELEC must be deemed possessed of authority to annul elections where the
will of the voters has been defeated and the purity of elections sullied. It would be unreasonable
to state that the COMELEC has a legal duty to perform and at the same time deny it the
wherewithal to fulfill that task.
". . . the Commission must be given considerable latitude in adopting means and methods that
will ensure the accomplishment of the great objective for which it was created-to promote free,
orderly and honest elections." 11
As then Justice Enrique M. Fernando, now the Chief Justice, pointed out in his concurring
opinion in Antonio, Jr., vs. COMELEC, 32 SCRA 319 (1970):
"Where majority of the voters of a province failed to cast their votes due to widespread
terrorism committed the Commission on Elections should annul the canvass and the
proclamation of the winning candidate. . . ."
The fact that widespread terrorism occurred after the elections, and not in the casting of votes,
should make no difference. LLjur
Power to call a special election.
On this issue, the COMELEC opined that it had no power to order the holding of a new or special
election, stating:
"Although the broad powers and functions and jurisdiction of the Commission may be gleaned
from the foregoing, nevertheless, neither the Constitution nor the 1978 Election Code and Batas
Pambansa Bilang 52 has granted it the authority and power to call a special election under the
peculiar facts and circumstances of these cases at bar. As pointed out above, it is the firm
finding and conclusion of the Commission that there was total failure of election in San
Fernando, Pampanga, not because of threats and coercion or terrorism inflicted on the voters
before or during election day as in Antonio Case, but for the threats and coercion or terrorism
and irregularities committed after the elections or specifically in the counting of the votes and in
the preparation of the election returns upon the teacher-members of the Citizens Election
Committees (CEC's) without regard to the genuine ballots in the ballot boxes which were
substituted with prepared ballots favoring respondent Biliwang.
In other words, this Commission finds that the election itself took place on the date fixed by
law, i.e. January 30, 1980, was not suspended and was generally peaceful and orderly, but that
its validity was impaired by the post-election acts of terrorism, violence, intimidation and threats
which resulted in the submission of gun-point or coerced election returns.
Under the premises, the Commission has no power, even under Section 7 of the 1978 Election
Code or Section 5 of Batas Pambansa Blg. 52 as quoted above, to order the holding of a new or
special election. The existing laws do not provide such power. . . ." 12
Thus, the COMELEC deemed it imperative "to certify to the President/Prime Minister and the
Batasang Pambansa the failure of election in San Fernando, Pampanga, so that remedial
legislation may be enacted . . .", explaining:
"Considering that there is now no Electoral Tribunal as Justice Teehankee, nor Congress, as
Chief Justice Fernando, have separately proposed in the Antonio Case, the Commission deems it
as not only appropriate and necessary, but as the sole imperative and urgent remedy to certify
to the President/Prime Minister and the Batasang Pambansa the failure of election in San
Fernando, Pampanga, so that remedial legislation may be enacted and that pending such
enactment, the President/Prime Minister may appoint the municipal officials of San Fernando."
13

The pertinent portion of the concurring opinion of Chief Justice Fernando in the Antonio case,
referred to above, reads:
". . . and (the Commission on Elections shall) certify to Congress that the right to vote was
frustrated and nullified so that the appropriate remedial measure in the form of a new election
could be provided for by appropriate legislation."
The relevant portion of the concurring Opinion of Mr. Justice Claudio Teehankee in the same
case states:
". . . The question of whether there remained of election for which a winner may be proclaimed
or whether there was a failure of election since the remaining returns do not represent a valid
constituency under the prevailing doctrine of the House Electoral Tribunal is one that pertains to
the exclusive jurisdiction of said Tribunal and should be certified thereto as indicated in the body
of this opinion for resolution." 14
In Ututalum vs. Comelec, 15 SCRA 465 (1965), this Court also had occasion to hold:
"The functions of the Commission on Elections under the Constitution are essentially executive
and administrative in nature. Upon the other, the authority to order the holding of elections on
any date other than that fixed in the Revised Election Code is merely incidental to or an
extension or modality of the power to fix the date of elections. This is, in turn, neither executive
nor administrative, but legislative in character, not only by nature, but, also, insofar as national
elections are concerned, by specific provisions of the Constitution, for, pursuant thereto, the
elections for Senators and members of the House of Representatives and those for President
and Vice-President, shall be held on the dates ' fixed by law' (Article VI, Sec. 8 [11 and Article
VII, Sec. 4 Constitution), meaning an Act of Congress. Hence, no elections may be held on any
other date, except when so provided by another Act of Congress or upon orders of a body or
officer to whom Congress may have delegated, either its aforementioned power, or the
authority to ascertain or fill in the details in the execution of said power. There is, however, no
such statutory grant of authority to the Commission on Elections." cdasia
Again, the foregoing Opinions were rendered under the regime of the 1935 Constitution and the
former Revised Election Code (Republic Act No. 180, as amended), whereby there was no
constitutional nor statutory precept that empowered the COMELEC to direct a new election after
one had already been held. 15 Under section 8 of that former statute, authority was given to the
President to postpone the election upon the recommendation of the COMELEC. And Section 21
(c) of the same law authorized the President to issue a proclamation calling a special election
whenever the election for a local office failed to take place on the date fixed by law. In other
words, the prerogative to postpone an election or call a special election, was formerly lodged
with the President. Besides, the Antonio case involved a House contest at a time when the
House Electoral Tribunal was the sole Judge to determine the validity of the returns and
elections. 16
As the laws now stand, however, COMELEC has been explicitly vested with the authority to "call
for the holding or continuation of the election." Thus, Section 5 of Batas Pambansa Blg. 52
explicitly provides:
"Sec. 5. Failure of Election. Whenever for any serious cause such as violence, terrorism, loss
or destruction of election paraphernalia or records, force majeure and other analogous cases of
such nature that the holding of a free, orderly and honest election should become impossible,
the election for a local office fails to take place on the date fixed by law, or is suspended, or
such election results in a failure to elect, the Commission on Elections shall, on the basis of a
verified petition and after due notice and hearing, call for the holding or continuation of the
election as soon as practicable." (Emphasis ours)
Section 7 of the Election Code of 1978 (PD No. 1296) similarly provides:
"Sec. 7. Failure of election. If, on account of force majeure, violence, terrorism, or fraud the
election in any voting center has not been held on the date fixed or has been suspended before
the hour fixed by law for the closing of the voting and such failure or suspension of election in
any voting center would affect the result of the election, the Commission may on the basis of a
verified petition and after due notice and hearing, call for the holding or continuation of the
election not held or suspended."

Section 8 of the same 1978 Election Code empowers the COMELEC to call a special election to
fill a vacancy or a newly created elective position.
"SEC. 8. Call of special election. Special elections shall be called by the Commission by
proclamation on a date to be fixed by it, which shall specify the offices to be voted for, that it is
for the purpose of filling a vacancy or a newly created elective position, as the case may be."
Clearly, under Section 5 of Batas Pambansa Blg. 52, above-quoted, when the election "results in
a failure to elect, the COMELEC may call for the' holding or continuation of the election as soon
as practicable." We construe this to include the calling of a special election in the event of a
failure to elect in order to make the COMELEC truly effective in the discharge of its functions. In
fact, Section 8 of the 1978 Election Code, supra specifically allows the COMELEC to call a special
election for the purpose of filling a vacancy or a newly created position, as the case may be.
There should be no reason, therefore, for not allowing it to call a special election when there is
a failure to elect. cdll
We do not share the view of public respondent and the Solicitor General that the power of the
COMELEC to call for special elections is circumscribed by the very same Section 5 of Batas
Pambansa Blg. 52 itself, and that "the San Fernando situation is not within its ambit 17". More
specifically, their position is:
"Weighing incontrovertibly against the petitioner's claim is the language of the law itself. What
does Section 5, Batas Pambansa Blg. 52 say? It states that the Commission is empowered to call
for the 'holding or continuation of the election as soon as practicable' where: (1) 'the holding of
a free, orderly and honest election should become impossible; (2) 'the election for a local office
fails to take place on the date fixed by law; (3) 'the election for a local office . . . on the date
fixed by law is suspended and (4) 'such election results in a failure to elect. . . .'
"An examination of the foregoing enumeration clearly reveals that the same essentially and
solely refer to the casting of ballots for the public office concerned. Surely, this is a clear case of
ejusdem generis. The last of the enumerated situations must hew to the same specific meaning
as the first three. And clearly, the first three enumerated instances refer to the actual casting of
ballots. The petitioner's general definition cannot apply here. The failure to elect must,
therefore, result specifically from a failure relative to the casting of ballots. This envisions a
situation where an election is not impossible to hold; neither does it fail to take place; nor is it
suspended; but nevertheless, the voters are unable to cast their votes, due to the operation on
such voters of either violence, terrorism, loss or destruction of election paraphernalia or records,
force majeure and other analogous cases. Here, there was no failure relative to the free and
voluntary casting of votes on the part of the voters.
"The petitioner's attempt then to interpret the terms 'election' in the above provision of law as
including, not only the casting of ballots, but the counting thereof, the preparation of election
returns, canvass and proclamation is, indeed, misplaced in the light of the language of the
above controlling provision of law.
"It is not to be doubted that the voters in San Fernando cast their votes freely and voluntarily
before the various CEC's of the municipality. In the light of the above provision of law, election
had actually taken place. As the evidence clearly shows, the 'failure to elect' here was the result
of the operation of a massive, systematic and palpably evil operation to: (1) substitute fake for
genuine ballots; (2) manufacture election returns at gunpoint; and (3) secure a proclamation on
the basis of these false documents. Because of these illegal maneuvers to frustrate the will of
the electorate, there was, more accurately, a failure to gauge the true and genuine will of the
electorate, rather than a failure of election. Ballots were duly cast, but because of the above
massive and systematic operations to frustrate the electorate's will, their true and authentic vote
could not be ascertained." 18
In a nutshell, it is contended that "the illegal maneuvers to frustrate the will of the electorate
was, more accurately, a failure to gauge the true and genuine will of the electorate, rather than
a failure of election;" that the COMELEC could no longer call for the holding of a special election
in this case because fraud and terrorism were committed after the voters had already cast their
ballots, and therefore; elections had actually taken place; and that for there to be a failure to
elect, it must result specifically from a failure relative to the casting of ballots. cdphil

It should be recalled that the COMELEC found the post-election acts of terrorism in San
Fernando so massive and pervasive in nature that it rejected all the returns. It made the "firm
finding and conclusion . . . that there was total failure of election in San Fernando, Pampanga".
19 When all the returns are void, it cannot be gainsaid that there was a failure to elect. But to
state that this is not the failure of election contemplated by Batas Pambansa Blg. 52 because
elections did take place is, to our minds, too tenuous a distinction. In practical effect, no
election has at all been held; there has been in truth and in fact, a failure to elect.
It would be to circumscribe the power of the COMELEC to ensure free, orderly and honest
elections if we were to hold that the COMELEC authority to call for the holding of the election is
applicable only when the causes therefor occurred before the elections; in other words, that the
grounds for calling special elections do not include post-election terrorism. That interpretation
would not only hamper the effectiveness of the COMELEC in the discharge of its functions but it
would also in case of failure to elect due to post-election terrorism, delay the opportunity to the
voters to cast their votes at the earliest possible time. The electorate should not be
disenfranchised for long and the COMELEC should not be prevented from taking the necessary
steps to complete the elections. After all, the casting of ballots is not the only act constitutive of
elections. An election is not complete until proclamation has been made.
"An election is not an election and popular will is not deemed to have been expressed until the
last act necessary to complete the election under the law has been performed. Under the laws
of the Philippines the act which completes the election is the proclamation of the provincial
board of canvassers." 20
In fine, we uphold the power and prerogative of the COMELEC to annul an election where the
will of the voters has been defeated, as well as to call for a special election where widespread
terrorism, whether before or after election, has been proven resulting in a failure to elect,
without need of recourse to the President and the Batasang Pambansa for the enactment of
remedial legislation.
Biliwang raises for the first time on review his right to a "hold-over". Not only has this been
belatedly raised but the fact also remains that his elective term expired on December 31, 1975
and that he already held-over by virtue of PD No. 1576. He ceased to hold-over, however, when
elections were held on January 30, 1980, besides the fact that the President has already
appointed an officer-in-charge in San Fernando, Pampanga.
WHEREFORE, 1) in G. R. No. 55513, the challenged Resolution of May 15, 1980 is hereby
modified, and the Commission on Elections hereby held empowered to call a special election
where there has been a failure to elect. That portion which certifies the failure of election in San
Fernando, Pampanga, to the President and the Batasang Pambansa for the enactment of
remedial measures, is hereby set aside. cdphil
2)
In G. R. No. 55642, the Petition is hereby denied for lack of merit, and the authority
of the Commission on Elections to annul an election hereby upheld.No costs.SO ORDERED.
G.R. No. 124089. November 13, 1996.]
HADJI NOR BASHER L. HASSAN, petitioner, vs. COMMISSION ON ELECTIONS,
SYLLABUS
1.
POLITICAL LAW; COMMISSION ON ELECTIONS; SPECIAL ELECTION; NOTICE TO
VOTERS OF TIME, PLACE AND PURPOSE THEREOF IS ESSENTIAL TO ITS VALIDITY; CASE AT
BENCH. We cannot agree with the COMELEC that petitioner, his followers or the constituents
must be charged with notice of the special elections to be held because of the failure of the two
(2) previous elections. The re-scheduling of the special elections from May 27 to May 29, was
done in uncommon haste and unreasonably too close for all voters to be notified of the
changes, not only as to the date but as to the designated polling place. . . . To require the
voters to come to the polls on such short notice was highly impracticable. In a place marred by
violence, it was necessary for the voters to be given sufficient time to be notified of the changes
and prepare themselves for the eventuality. It is essential to the validity of the election that the
voters have notice in some form, either actual or constructive of the time, place and purpose
thereof. The time for holding it must be authoritatively designated in advance. The requirement

of notice even becomes stricter in cases of special elections where it was called by some
authority after the happening of a condition precedent, or at least there must be a substantial
compliance therewith so that it may fairly and reasonably be said that the purpose of the statute
has been carried into effect. cdasia
2.
ID.; ID.; ID.; ID.; SUFFICIENCY OF NOTICE, HOW DETERMINED; CASE AT BENCH.
The sufficiency of notice is determined on whether the voters generally have knowledge of the
time, place and purpose of the elections so as to give them full opportunity to attend the polls
and express their will or on the other hand, whether the omission resulted in depriving a
sufficient number of the qualified electors of the opportunity of exercising their franchise so as
to change the result of the election. From the foregoing it is not difficult for us to rule that there
was insufficiency of notice given as to the time and transfer of the polling places. The low
turnout of voters is more than sufficient proof that the elections conducted on that day was
vitiated. A less than a day's notice of time and transfer of polling places 15 kilometers away
from the original polls certainly deprived the electors the opportunity to participate in the
elections.
3.
ID.; ID.; ID.; ID.; ID.; DEPRIVATION OF ELECTORS' RIGHT TO VOTE APPARENT IN
CASE AT BENCH. It was quite sweeping and illogical for the COMELEC to state that the votes
uncast would not have in any way affected the results of the elections. While the difference
between the two candidates is only 219 out of the votes actually cast, the COMELEC totally
ignored the fact that there were more than a thousand registered voters who failed to vote.
Aside from Precinct 7-A where the ballot box had been burned and which had 219 voters, the
COMELEC failed to consider the disenfranchisement of about 78% of the registered voters in the
five (5) precincts of Madalum. Out of the 1,546 registered voters, only 328 actually voted
because of the insufficient and ineffectual notice given of the time and place of elections.
Whether or not another special election would turn the tide in petitioner's favor is of no moment
because what is more important is that the electors should not have been deprived of their right
to vote which was rather apparent in the case at bar. aDACcH
DECISION
Petitioner, Hadji Nor Basher L. Hassan, and private respondent, Mangondaya P. Hassan Buatan
were candidates for the Office of the Vice-Mayor while the other private respondents were
candidates for councilors in Madalum, Lanao del Sur in the last regular local elections of May 8,
1995. However, due to threats of violence and terrorism in the area there was failure of
elections in six out of twenty-four precincts in Madalum.
The ballot boxes were burned and there were threats by unidentified persons in Precinct No. 7A. In Precinct Nos. 9, 9-A, 10, 13, and 14, elections did not take place because the members of
the Board of Election Inspectors (BEI) failed to report to their respective polling places.
Thus, the Monitoring Supervising Team (COMELEC Team) headed by Regional Election Director
Virgilio O. Garcillano recommended to the COMELEC the holding of special elections in said
precincts. The special elections were thereby set on May 27, 1995. On said date, however, the
members of the BEI again failed to report for duty in their respective polling places.
In an Order dated May 28, 1995, the COMELEC Team re-scheduled the elections in these
precincts for May 29, 1995 at Liangan Elementary (Arabic) School, which is 15 kilometers away
from the designated polling places.
On May 29, 1995, the members of the Board did not again report for duty. Hence, the COMELEC
Team was constrained to appoint police/military personnel to act as substitute members so as to
push through with the elections.
In the May 8 elections, the results for the Office of the Vice-Mayor were as follows:
1.
MANGONDAYA HASSAN

884
2.
OSOP KIRAM

816
3.
PETITIONER HASSAN

801
4.
ESRA S. ANGNI

340
5.
IBRAHAM ALAWI
185
In the May 29 special elections held in Precinct Nos. 9, 9-A, 10, 13 and 14 the following votes
were obtained.

1.
M. HASSAN

214
2.
OSOP KIRAM

17
3.
N. HASSAN

78
4.
ANGNI ESRA

1
5.
IBRAHIM ALAWI

0
Hence the final results are as follows:
1.
MANGONDAYA HASSAN

1,098
2.
PETITIONER NOR HASSAN

879
3.
OSOP KIRAM

833
4.
ANGNI ESRA

341
5.
IBRAHIM ALAWI

185 1
On June 10, 1995, petitioner Hadji Nor Basher L. Hassan filed a petition with the COMELEC
docketed as SPA 95-283 assailing the validity of the May 29 re-scheduled special elections on
the following grounds:
a)
The voting which started at 10:00 A.M. was forcibly ended at around 2:00 p.m.
because of exchanges of rapid gunfiring and grenade launching between unknown elements and
the Army or PNP soldiers;
b)
The voting was moved to Liangan Elementary (Arabic) School, located about 15
kilometers away from the respective polling places;
c)
Notices in the transfer of venue of the voting was sent only on the "night" of May 28,
1995 and only to a "few" but not to all concerned;
d)
Only 328 out of the 1,645 registered voters of said 5 precincts were able to vote
constituting only about 21.1% 2 and disenfranchising 78% of the registered voters thereof; and
e)
The regular members of the BEI did not report for duty and were substituted by
military personnel. 3
At the same time, private respondent Mangondaya P. Hassan Buatan also filed a petition with
the COMELEC (docketed as SPA 95-286) assailing the inaction of the Municipal Board of
Canvassers of Madalum on his petition to be proclaimed the winning vice-mayoralty candidate.
On February 21, 1996 the COMELEC en banc issued a resolution denying the petition for a
declaration of failure of elections and to call special elections in Precinct Nos. 7-A (Abaga), 9, 9A, 10, 13 and 14, in Madalum, Lanao del Sur. It disposed of the consolidated petitions (SPA 95283 and SPA 95-286) by directing "the Regional Election Director of Region XII in consultation
with the Commissioner-in-Charge of Region XII to reconstitute the Municipal Board of
Canvassers of Madalum, Lanao del Sur, of which shall convene forthwith and complete the
canvass by proclaiming the winning vice-mayoralty candidate, Mangondaya P. Hassan Buatan,
and eight winning candidates for member, Sangguniang Bayan of that municipality." 4
Thus, petitioner went up to this Court assailing the aforesaid resolution with a prayer for
Temporary Restraining Order (TRO) to enjoin the proclamation of the winning candidates.
On March 26, 1996, the Court issued a Temporary Restraining Order as prayed for pending the
resolution of the issue as to whether or not the COMELEC erred in not declaring a failure of
elections on May 29, 1995 in Madalum, Lanao del Sur.
In its Resolution dated February 21, 1996, the COMELEC ruled that the petition to declare a
failure of elections in Madalum has no valid grounds since the outcome of the special elections
in the said precincts would nonetheless not change the final results of the elections in
petitioner's favor.
The difference between the first and second place is only 219 votes. The only precinct left which
was not counted since the ballot box was burned was Precinct 7-A and Precinct 7-A has 219
voters. The COMELEC opined that it would be quite impossible for all 219 voters to have voted
for petitioner. Hence, whether or not a special election would be held, Mangondaya P. Hassan
Buatan would in all probability still come out the winner.
The authority of the COMELEC to declare a failure of election is provided by Section 6 of the
Omnibus Election Code, which reads:
SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or
other analogous causes the election in any polling place has not been held on the date fixed, or
had been suspended before the hour fixed by law for the closing of the voting, or after the

voting and during the preparation and the transmission of the election returns or in the custody
or canvass thereof, such election results in a failure to elect, and in any of such cases the failure
or suspension of election would affect the result of the election, the Commission shall, on the
basis of a verified petition by any interested party and after due notice and hearing, call for the
holding or continuation of the election not held, suspended or which resulted in a failure to elect
on a date reasonably close to the date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect. (Sec. 7, 1978 EC)
In several cases, 5 the Court has ruled that the pre-conditions for declaring a failure of election
are: (1) that no voting has been held in any precinct or precincts because of force majeure,
violence or terrorism, and (2) that the votes not cast therein suffice to affect the results of the
elections. The concurrence of these two (2) circumstances are required to justify the calling of a
special election.
Mindful of these two (2) requirements, we rule in favor of the petitioner.
The COMELEC explained that:
Jurisprudence holds that terrorism may not as a rule be invoked to declare a failure of elections
and to disenfranchise the greater number of the electorate through the misdeeds 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. It has been ruled that
annulment of election results and consequent disenfranchisement of voters is a very stringent
one. The power to annul an election should be exercised with the greatest care and
circumspection and only in extreme cases and under circumstances which demonstrate beyond
doubt and to the fullest degree of fundamental and wanton disregard of the law. (Grand Alliance
for Democracy [GAD] vs. Comelec, 150 SCRA 665; Reyes vs. Mamba, HRET Case No. 92-022,
September 14, 1994). 6
While we are aware of the aforesaid rule, the COMELEC can not turn a blind eye to the fact that
terrorism was so prevalent in the area, sufficient enough to declare that no voting actually
occurred on May 29, 1995 in the areas concerned.
It must be recalled that elections had to be set for the third time because no members of the
Board of Election Inspectors (BEI) reported for duty due to impending threats of violence in the
area. This then prompted COMELEC to deploy military men to act as substitute members just so
elections could be held; and to thwart these threats of violence, the COMELEC Team, moreover,
decided to transfer the polling places to Liangan Elementary School which was 15 kilometers
away from the polling place. Nonetheless, voting on May 29 had to be suspended before the
hour fixed by law for the closing of the voting because of threats of violence, grenade launching
and gunfires. The Memorandum and Offer of Evidence submitted by the petitioner are quite
revealing, among which are the following:
(1)
EXH. "A" Memorandum of the respondent Comelec Team, dated June 4, 1995,
recommending the holding of special election in Pct. 7-A, because the ballot box with ballots
were set on fire by unknown men amounting to failure of election also;
(2)
EXH "B" Certification by the Madalum Acting Election Officer on the appointment of
substitute members, who are military personnel, in the 5 precincts involved in this case, because
of failure of the regular members thereof to report for duty in the May 29, 1995 special election;
(3)
EXH. "C" Minutes of Voting for Pct. 9, showing that 59 of the 418 registered voters
voted; voting started at 11 :40 a.m. and ended at 2:25 p.m.; only 58 valid ballots were found
inside the ballot box; and the reported violence and terrorism, which reads:
UNTOWARD INCIDENTS HAPPENED.
AT ABOUT 2:15 PM MAY 29, 1995, WHILE THE VOTING IS BEING CONDUCTED, AN M-79 OR
M203 GRENADE LAUNCHER WAS FIRED BEHIND THE WOODEN SCHOOL BUILDING WHERE
PRECINCT NO. 9, 9-A, AND 13, 14 WERE LOCATED. THIS WAS FOLLOWED BY RAPID FIRE
FROM THE UNIDENTIFIED GROUP. WE PUT ALL THE ELECTION PARAPHERNALIA AND FORMS
INSIDE THE BALLOT BOX AND PADLOCKED THE SAME. THERE WERE ABOUT 5 GRENADE
LAUNCHERS WERE FIRED AT THE SCHOOL. THE MILITARY SECURITY EXCHANGED FIRE TO
THE GROUP. IT LASTED FOR ABOUT 30 MINUTES. WE LEFT THE SCHOOL (LIANGAN ARABIC

SCHOOL) AT ABOUT 2:45 PM AND PROCEEDED TO MUNICIPAL HALL OF MADALUM. WE LEFT

MADALUM AT 3:15 PM AND ARRIVED AT MARAWI CITY AT ABOUT 5:00 PM (p. 4)
xxx
xxx
xxx
(8)
EXH. "H" Joint Affidavit of Hassan's watchers, dated June 11, 1995, corroborating
that:
4.
That at about 2:00 p.m. unidentified gunmen began indiscriminately fired their guns
around the polling place which provoked the military serving the precincts to close the ballot
boxes and the other military men guarding the polling place reacted and also fired their guns
which caused panic to the voters around;
That to our evaluation at the closing of the voting at 2:00 p.m. only more or less 20 percent of
the registered voters in each of the five precincts have casted their votes; 7
The peculiar situation of Madalum can not be overstated. Notwithstanding, the notice given on
the afternoon of May 28 resetting the special elections to May 29 and transferring the venue of
the elections 15 kilometers away from the farthest barangay/school was too short resulting to
the disenfranchisement of voters. Out of the 1,546 registered voters in the five (5) precincts
only 328 actually voted. The COMELEC justified this short notice in this light:
". . . Viewed from ordinary human experience and the election culture obtaining in the locality,
there can be no doubt that, the date on which special elections were to be held after one that
previously failed, was high in the agenda of concerns and interests of the constituents involved.
In Sabeniano et al. vs. Comelec, 101 SCRA 289, 301 and Quilala vs. Comelec, 188 SCRA 502,
the Supreme Court, referring to election processes and incidents as matters directly affecting
the political fortunes of a candidate, held that it is a matter of judicial notice that the candidates,
their representatives and watchers station or deploy themselves among the various voting and
canvassing centers to watch the proceedings from the first hour of voting until the completion of
the canvassing. In instant case, the May 27 special elections failed and were reset for May 29,
1995. Petitioner Hassan cannot claim that the later notice was not good enough for him. He was
aware and ready for the May 27 special elections. He was just as alert and prepared for the May
29 special elections as these are "matters directly affecting his political fortunes." 8
We cannot agree with the COMELEC that petitioner, his followers or the constituents must be
charged with notice of the special elections to be held because of the failure of the two (2)
previous elections. To require the voters to come to the polls on such short notice was highly
impracticable. In a place marred by violence, it was necessary for the voters to be given
sufficient time to be notified of the changes and prepare themselves for the eventuality.
It is essential to the validity of the election that the voters have notice in some form, either
actual or constructive of the time, place and purpose thereof. 9 The time for holding it must be
authoritatively designated in advance. The requirement of notice even becomes stricter in cases
of special elections where it was called by some authority after the happening of a condition
precedent, or at least there must be a substantial compliance therewith so that it may fairly and
reasonably be said that the purpose of the statute has been carried into effect. 10 The
sufficiency of notice is determined on whether the voters generally have knowledge of the time,
place and purpose of the elections so as to give them full opportunity to attend the polls and
express their will or on the other hand, whether the omission resulted in depriving a sufficient
number of the qualified electors of the opportunity of exercising their franchise so as to change
the result of the election. 11
From the foregoing, it is not difficult for us to rule that there was insufficiency of notice given as
to the time and transfer of the polling places. The low turnout of voters is more than sufficient
proof that the elections conducted on that day was vitiated. A less than a day's notice of time
and transfer of polling places 15 kilometers away from the original polls certainly deprived the
electors the opportunity to participate in the elections.
Respondents argue that since voting actually occurred on May 29, the substantial requirement
of notice was complied with, which should not necessarily invalidate the elections; more so, if
the votes not cast therein suffice to affect the results of the elections.
We disagree. It was quite sweeping and illogical for the COMELEC to state that the votes uncast
would not have in any way affected the results of the elections. While the difference between
the two candidates is only 219 out of the votes actually cast, the COMELEC totally ignored the

fact that there were more than a thousand registered voters who failed to vote. Aside from
Precinct 7-A where the ballot box had been burned and which had 219 voters, the COMELEC
failed to consider the disenfranchisement of about 78% of the registered voters in the five (5)
precincts of Madalum. Out of the 1,546 registered voters, only 328 actually voted because of the
insufficient and ineffectual notice given of the time and place of elections. Whether or not
another special election would turn the tide in petitioner's favor is of no moment because what
is more important is that the electors should not have been deprived of their right to vote which
was rather apparent in the case at bar.
Finally, in Lucero v. COMELEC, 12 we stated that:
In fixing the date of the special election, the COMELEC should see to it that: (1) it should be not
later than thirty days after the cessation of the cause of the postponement or suspension of the
election or the failure to elect, and (2) it should be reasonably close to the date of the election
not held, suspended, or which resulted in failure to elect. The first involves questions of fact.
The second must be determined in the light of the peculiar circumstances of a case.
The re-scheduling of the special elections from May 27 to May 29, was done in uncommon haste
and unreasonably too close for all voters to be notified of the changes, not only as to the date
but as to the designated polling place. We must agree with the dissenting opinion that even in
highly urbanized areas, the dissemination of notices poses to be a problem. In the absence of
proof that actual notice of the special elections has reached a great number of voters, we are
constrained to consider the May 29 elections as invalid. If only to ascertain the will of the people
and to prevent that will from being muted, it is necessary that a special election be held in view
of the failure of elections in Madalum, Lanao del Sur.
WHEREFORE, the petition is GRANTED.
(1)
The COMELEC is hereby enjoined from proclaiming the winners for the Office of ViceMayor and Councilors respectively; and
(2)
The COMELEC is ORDERED to conduct special elections in Madalum, Lanao del Sur as
soon as possible.
SO ORDERED.
G.R. No. 120318. December 5, 1997.
RICARDO "BOY" CANICOSA, petitioner, vs. COMMISSION ON ELECTIONS,
SYNOPSIS
Petitioner Ricardo Canicosa and private respondent Severino Lajara were candidates for mayor
in Calamba, Laguna during the May 8, 1995 elections. After the canvassing, private respondent
was proclaimed winner by the Municipal Board of Canvasser. Thereafter, petitioner filed with the
Commission on Elections (COMELEC) a petition to declare failure of election and to declare null
and void the canvass and proclamation because of alleged widespread frauds and anomalies in
casting and accounting of votes, preparation of election returns, violence, threats, intimidation,
vote buying, unregistered voters voting and delay in the delivery of election documents and
paraphernalia from the precincts to the office of the Municipal Treasurer. In its decision, the
COMELEC en banc dismissed the petition on the ground that the allegations therein did not
justify a declaration of failure of election.
The Supreme Court ruled that the grounds cited by Canicosa do not warrant a declaration of
failure of election. Clearly, none of the grounds invoked by petitioner falls under those instances
enumerated under Section 6 of BP Blg. 881, otherwise known as the Omnibus Election Code. In
view thereof, finding no grave abuse of discretion committed by public respondent, the petition
is dismissed and the challenged resolution is affirmed.
SYLLABUS
1.
POLITICAL LAW; ELECTION LAWS; OMNIBUS ELECTION CODE: INSTANCES WHERE
A FAILURE OF ELECTION MAY BE DECLARED. There are only three (3) instances where a
failure of election may be declared, namely: (a) the election in any polling place has not been
held on the date fixed on account of force majeure, violence, terrorism, fraud, or other
analogous causes; (b) the election in any polling place had been suspended before the hour

fixed by law for the closing of the voting on account of force majeure, violence, terrorism, fraud,
or other analogous causes; or (c) after the voting and during the preparation and transmission
of the election returns or in the custody or canvass thereof, such election results in a failure to
elect on account of force majeure, violence, terrorism, fraud, or other analogous causes.
2.
ID.; ID.; ID.; AVERMENT THAT MORE THAN ONE-HALF OF THE LEGITIMATE VOTERS
WERE NOT ABLE TO VOTE IS NOT A GROUND WHICH WARRANTS A DECLARATION OF
FAILURE OF ELECTION. Canicosa also avers that more than one-half (1/2) of the legitimate
registered voters were not able to vole, instead, strangers voted in their behalf. Again, this is
not a ground which warrants a declaration of failure of election. Canicosa was allowed to
appoint a watcher in every precinct. The watcher is empowered by law to challenge any illegal
voter. . . . The claim of Canicosa that he was credited with less votes than he actually received
and that the control data of the election returns was not filled up should have been raised in the
first instance before the board of election inspectors or board of canvassers. Section 179, Art.
XV, of the Omnibus Election Code clearly provides for the rights and duties of watchers.
3.
ID.; ID.; ID.; CONDITIONS WHICH MUST CONCUR BEFORE THE COMMISSION ON
ELECTIONS CAN ACT ON A VERIFIED PETITION SEEKING TO DECLARE A FAILURE OF
ELECTION. The grounds cited by Canicosa in his petition do not fall under any of the
instances enumerated in Sec. 6 of the Omnibus Election Code. In Mitnug v. Commission on
Elections we ruled that before COMELEC can act on a verified petition seeking to declare a
failure of election, at least two (2) conditions must concur: (a) no voting has taken place in the
precincts on the date fixed by law, or even if there was voting, the election nevertheless
resulted in failure to elect; and, (b) the votes that were not cast would affect the result of the
election. From the face of the instant petition, it is readily apparent that an election took place
and that it did not result in a failure to elect.
4.
ID.; ID.; ID.; THE QUESTION OF INCLUSION OR EXCLUSION FROM THE LIST OF
VOTERS INVOLVES THE RIGHT TO VOTE WHICH IS A JUSTICIABLE ISSUE PROPERLY
RECOGNIZED BY THE REGULAR COURTS. Fifteen (15) days before the regular elections on 8
May 1995 the final list of voters was posted in each precinct pursuant to Sec. 148 of RA No.
7166. Based on the lists thus posted Canicosa could have filed a petition for inclusion of
registered voters with the regular courts. The question of inclusion or exclusion from the list of
voters involves the right to vote which is not within the power and authority of COMELEC to rule
upon. The determination of whether one has the right to vote is a justiciable issue properly
cognizable by our regular courts.
5.
ID.; ID.; ID.; THE PROVISION IN THE CONSTITUTION MANDATING THE
COMMISSION ON ELECTIONS TO HEAR AND DECIDE CASES FIRST BY DIVISION AND THEN,
UPON MOTION FOR RECONSIDERATION, BY COMELEC EN BANC, NOT APPLICABLE IF THE
CASE ABOUT TO BE RESOLVED IS PURELY ADMINISTRATIVE IN NATURE; CASE AT BAR.
Canicosa finally insists that it was error on the part of COMELEC sitting en banc to rule on his
petition. He maintains that his petition should have first been heard by a division of COMELEC
and later by the COMELEC en banc upon motion for reconsideration, pursuant to Sec. 3, Art. IXC, of the Constitution. But this provision applies only when the COMELEC acts in the exercise of
its adjudicatory or quasi-judicial functions and not when it merely exercises purely administrative
functions. It is only in the exercise of its adjudicatory or quasi-judicial powers that the COMELEC
is mandated to hear and decide cases first by Division and then, upon motion for
reconsideration, by the COMELEC en banc. This is when it is jurisdictional. In the instant case,
as aforestated, the issues presented demand only the exercise by the COMELEC of its
administrative functions.
DECISION
RICARDO "BOY" CANICOSA and SEVERINO LAJARA were candidates for mayor in Calamba,
Laguna, during the 8 May 1995 elections. After obtaining a majority of some 24,000 votes 1
Lajara was proclaimed winner by the Municipal Board of Canvassers. On 15 May 1995 Canicosa
filed with the Commission on Elections (COMELEC) a Petition to Declare Failure of Election and
to Declare Null and Void the Canvass and Proclamation because of alleged widespread frauds
and anomalies in casting and counting of votes, preparation of election returns, violence,

threats, intimidation, vote buying, unregistered voters voting, and delay in the delivery of
election documents and paraphernalia from the precincts to the Office of the Municipal
Treasurer. Canicosa particularly averred that: (a) the names of the registered voters did not
appear in the list of voters in their precincts; (b) more than one-half of the legitimate registered
voters were not able to vote with strangers voting in their stead; (c) he was credited with less
votes than he actually received; (d) control data of the election returns was not filled up in some
precincts; (e) ballot boxes brought to the Office of the Municipal Treasurer were unsecured, i.e.,
without padlocks nor self-locking metal seals; and, (f) there was delay in the delivery of election
returns. But the COMELEC en banc dismissed the petition on the ground that the allegations
therein did not justify a declaration of failure of election.
Indeed, the grounds cited by Canicosa do not warrant a declaration of failure of election.
Section 6 of BP Blg. 881, otherwise known as the Omnibus Election Code, reads:
Sec. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or
other analogous causes the election in any polling place has not been held on the date fixed, or
had been suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in the custody
or canvass thereof, such election results in a failure to elect, and in any of such cases the failure
or suspension of election would affect the result of the election, the Commission shall, on the
basis of a verified petition by any interested party and after due notice and hearing, call for the
holding or continuation of the election not held, suspended or which resulted in a failure to elect
on a date reasonably close to the date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect.
Clearly, there are only three (3) instances where a failure of election may be declared, namely:
(a) the election in any polling place has not been held on the date fixed on account of force
majeure, violence, terrorism, fraud, or other analogous causes; (b) the election in any polling
place had been suspended before the hour fixed by law for the closing of the voting on account
of force majeure, violence, terrorism, fraud, or other analogous causes; or (c) after the voting
and during the preparation and transmission of the election returns or in the custody, or
canvass thereof such election results in a failure to elect on account of force majeure, violence,
terrorism, fraud, or other analogous causes.
None of the grounds invoked by Canicosa falls under any of those enumerated. prcd
Canicosa bewails that the names of the registered voters in the various precincts did not appear
in their respective lists of voters. But this is not a ground to declare a failure of election. The
filing of a petition for declaration of failure of election therefore is not the proper remedy. The
day following the last day for registration of voters, the poll clerk delivers a certified list of voters
to the election registrar, election supervisor and the COMELEC, copies of which are open to
public inspection. On the same day, the poll clerk posts a copy of the list of registered voters in
each polling place. Each member of the board of election inspectors retains a copy of the list
which may be inspected by the public in their residence or in their office during office hours. 2
Fifteen (15) days before the regular elections on 8 May 1995 the final list of voters was posted
in each precinct pursuant to Sec. 148 of RA No. 7166. Based on the lists thus posted Canicosa
could have filed a petition for inclusion of registered voters with the regular courts. The question
of inclusion or exclusion from the list of Voters involves the right to vote 3 which is not within
the power and authority of COMELEC to rule upon. The determination of whether one has the
right to vote is a justiciable issue properly cognizable by our regular courts. Section 138, Art.
XII, of the Omnibus Election Code states:
Sec. 138. Jurisdiction in inclusion and exclusion cases. The municipal and metropolitan trial
courts shall have original and exclusive jurisdiction over all matters of inclusion and exclusion of
voters from the list in their respective municipalities or cities. Decisions of the municipal or
metropolitan trial courts may be appealed directly by the aggrieved party to the proper regional
trial court within five days from receipts of notice thereof otherwise said decision of the
municipal or metropolitan trial court shall decide the appeal within ten days from the time the
appeal was received and its decision shall be immediately final and executory. No motion for
reconsideration shall be entertained by the courts (Sec. 37, PD 1896, as amended).

On the other hand, Canicosa could have also filed with the COMELEC a verified complaint
seeking the annulment of the book of voters pursuant to Sec. 10, of RA No. 7166:
Sec 10. Annulment of the List of Voters. Any book of voters the preparation of which has
been affected with fraud, bribery, forgery, impersonation, intimidation, force or any other similar
irregularity or which is statistically improbable may be annulled after due notice and hearing by
the Commission motu proprio or after the filing of a verified complaint: Provided, that no order,
ruling or decision annulling a book of voters shall be executed within sixty (60) days before an
election.
If indeed the situation herein described was common in almost all of the 557 precincts as
alleged by Canicosa, 4 then it was more expedient on his part to avail of the remedies provided
by law in order to maintain the integrity of the election. Since Canicosa failed to resort to any of
the above options, the permanent list of voters as finally corrected before the election remains
conclusive on the question as to who had the right to vote in that election, although not in
subsequent elections. 5
Canicosa also avers that more than one-half (1/2) of the legitimate registered voters were not
able to vote, instead, strangers voted in their behalf Again, this is not a ground which warrants
a declaration of failure of election. Canicosa was allowed to appoint a watcher in every precinct.
The watcher is empowered by law to challenge any illegal voter. Thus, Secs. 199 and 202, Art.
XVII, of the Omnibus Election Code, provide:
Sec. 199. Challenge of illegal voters. (a) Any voter, or watcher may challenge any person
offering to vote for not being registered, for using the name of another or suffering from
existing disqualification. In such case, the board of election inspectors shall satisfy itself as to
whether or not the ground for the challenge is true by requiring proof of registration or identity
of the voter . . .
Sec. 202. Record of challenges and oaths. The poll clerk shall keep a prescribed record of
challenges and oaths taken in connection therewith and the resolution of the board of election
inspectors in each case and, upon the termination of the voting, shall certify that it contains all
the challenges made . . .
The claim of Canicosa that he was credited with less votes than he actually received and that
the control data of the election returns was not filled up should have been raised in the first
instance before the board of election inspectors or board of canvassers. Section 179, Art. XV, of
the Omnibus Election Code clearly provides for the rights and duties of watchers
Sec. 179. Rights and duties of watchers. . . . The watchers . . . shall have the right to witness
and inform themselves of the proceedings of the board of election inspectors . . . to file a
protest against any irregularity or violation of law which they believe may have been committed
by the board of election inspectors or by any of its members or by any persons, to obtain from
the board of election inspectors a certificate as to the filing of such protest and/or of the
resolution thereon . . . and to be furnished with a certificate of the number of votes in words
and figures cast for each candidate, duly signed and thumbmarked by the chairman and all the
members of the board of election inspectors . . .
To safeguard and maintain the sanctity of election returns, Sec. 212, Art. XVIII of the Omnibus
Election Code states
Sec. 212. Election returns. . . . Immediately upon the accomplishment of the election returns,
each copy thereof shall be sealed in the presence of the watchers and the public, and placed in
the proper envelope, which shall likewise be sealed and distributed as herein provided.
Furthermore, it is provided in Sec. 215 of the Omnibus Election Code thatSec. 215. Board of election inspectors to issue a certificate of the number of votes polled by the
candidates for an office to the watchers. After the announcement of the results of the
election and before leaving the polling place, it shall be the duty of the board of election
inspectors to issue a certificate of the number of votes received by a candidate upon request of
the watchers. All members of the board of election inspectors shall sign the certificate.
Supplementing the preceding provisions, Secs. 16 and 17 of R.A. No. 6646 also require
Sec. 16. Certification of votes. After the counting of the votes cast in the precinct and
announcement of the results of the election, and before leaving the polling place, the board of

election inspectors shall issue a certificate of votes upon request of the duly accredited
watchers. . .
Sec. 17. Certificate of Votes as Evidence. The provisions of Secs. 235 and 236 of Batas
Pambansa Blg. 881 notwithstanding, the certificate of votes shall be admissible in evidence to
prove tampering, alteration, falsification or anomaly committed in the election returns concerned
...
From the foregoing provisions, it is clear that in case of inconsistency as to the number of votes
written in the election returns and the certificate of votes, a petition for correction of election
returns must immediately be filed with COMELEC by all or a majority of the members of the
board of election inspectors or any candidate affected by the error or mistake. In order to make
out a case for correction of election returns, there must be an error and at least a majority of
the members of the board of election inspectors agrees that such error existed. Canicosa never
mentioned that he petitioned for the correction of the election returns before the COMELEC.
LLjur
Canicosa complains that the election returns were delivered late and the ballot boxes brought to
the Office of the Municipal Treasurer unsecured, i.e., without padlocks nor self-locking metal
seals. These bare allegations cannot impel us to declare failure of election. Assuming that the
election returns were delivered late, we still cannot see why we should declare a failure to elect.
The late deliveries did not convert the election held in Calamba into a mockery or farce to make
us conclude that there was indeed a failure of election.
In fine, the grounds cited by Canicosa in his petition do not fall under any of the instances
enumerated in Sec. 6 of the Omnibus Election Code. In Mitmug v. Commission on Elections 6 we
ruled that before COMELEC can act on a verified petition seeking to declare a failure of election,
at least two (2) conditions must concur. (a) no voting has taken place in the precincts on the
date fixed by law, or even if there was voting, the election nevertheless resulted in failure to
elect; and, (b) the votes that were not cast would affect the result of the election. From the face
of the instant petition, it is readily apparent than an election took place and that it did not result
in a failure to elect. 7
Canicosa finally insists that it was error on the part of COMELEC sitting en banc to rule on his
petition. He maintains that his petition should have first been heard by a division of COMELEC
and later by the COMELEC en banc upon motion for reconsideration, pursuant to Sec. 3, Art. IXC, of the Constitution. 8
But this provision applies only when the COMELEC acts in the exercise of its adjudicatory or
quasi-judicial functions and not when it merely exercises purely administrative functions. To
reiterate, the grounds cited by Canicosa in his petition are that: (a) the names of the registered
voters did not appear in the list of voters in their respective precincts; (b) more than one-half of
the legitimate registered voters were not able to vote with strangers voting in their stead; (c) he
was credited with less votes than he actually received; (d) the control data of the election
returns was not filled up in some precincts; (e) ballot boxes brought to the Office of the
Municipal Treasurer were unsecured, i. e., without padlocks nor self-locking metal seals; and, (f)
there was delay in the delivery of election returns.
Clearly, all these matters require the exercise by the COMELEC of its administrative functions.
Section 2, Art. IX-C of the 1987 Constitution grants extensive administrative powers to the
COMELEC with regard to the enforcement and administration of all laws and regulations relative
to the conduct of elections. Likewise, Sec. 52 of BP Blg. 881, otherwise known as the Omnibus
Election Code, states:
Sec. 52. Powers and functions of the Commission on Elections. In addition to the powers
and functions conferred upon it by the Constitution, the Commission shall have exclusive charge
of the enforcement and administration of all laws relative to the conduct of elections for the
purpose of ensuring free, orderly and honest elections . . .
Quite obviously, it is only in the exercise of its adjudicatory or quasi-judicial powers that the
COMELEC is mandated to hear and decide cases first by Division and then, upon motion for
reconsideration, by the COMELEC en banc. This is when it is jurisdictional. In the instant case,
as aforestated, the issues presented demand only the exercise by the COMELEC of its
administrative functions.

The COMELEC exercises direct and immediate supervision and control over national and local
officials or employees, including members of any national or local law enforcement agency and
instrumentality of the government required by law to perform duties relative to the conduct of
elections. Its power of direct supervision and control includes the power to review, modify or set
aside any act of such national and local officials. 9 It exercises immediate supervision and
control over the members of the boards of election inspectors and canvassers. Its statutory
power of supervision and control includes the power to revise, reverse or set aside the action of
the boards, as well as to do what the boards should have done, even if questions relative
thereto have not been elevated to it by an aggrieved party, for such power includes the
authority to initiate motu proprio or by itself such steps or actions as may be required pursuant
to law. 10
Specifically, Canicosa alleged that he was credited with less votes than he actually received. But
he did not raise any objection before the Municipal Board of Canvassers; instead, he went
directly to the COMELEC. He now claims, after the COMELEC en banc dismissed his petition, that
it was error on the part of COMELEC to rule on his petition while sitting en banc.
We have already disposed of this issue in Castromayor v. Commission on Elections 11 thus
It should be pinpointed out, in this connection, that what is involved here is a simple problem of
arithmetic. The Statement of Votes is merely a tabulation per precinct of the votes obtained by
the candidates as reflected in the election returns. In making the correction in computation, the
MBC will be acting in an administrative capacity, under the control and supervision of the
COMELEC. Hence, any question pertaining to the proceedings of the MBC may be raised directly
to the COMELEC en banc in the exercise of its constitutional function to decide questions
affecting elections.
Moreover, it is expressly provided in Rule 27, Sec. 7, of the Comelec Rules of Procedure that any
party dissatisfied with the ruling of the board of canvassers shall have a right to appeal to the
COMELEC en banc:
Sec. 7. Correction of Errors in Tabulation or Tallying of Results by the Board of Canvassers.
(a) Where it is clearly shown before proclamation that manifest errors were committed in the
tabulation or tallying or election returns, or certificates of canvass, during the canvassing as
where (1) a copy of the election returns of one precinct or two or more copies of a certificate of
canvass were tabulated more than once, (2) two copies of the election returns or certificate of
canvass were tabulated separately, (3) there was a mistake in the adding or copying of the
figures into the certificate of canvass or into the statement of votes by precinct, or (4) so-called
election returns from non-existent precincts were included in the canvass, the board may motu
proprio, or upon verified petition by any candidate, political party, organization or coalition of
political parties, after due notice and hearing, correct the errors committed . . . (h) The appeal
shall be heard and decided by the Commission en banc.
In Tatlonghari v. Commission on Elections 12 it was made to appear in the Certificate of
Canvass of Votes and Proclamation of the Winning Candidates that respondent therein received
4,951 votes or more than what he actually obtained. In resolving the case we ruled that the
correction of the manifest mistake in mathematical addition calls for a mere clerical task of the
board of canvassers. The remedy invoked was purely administrative. In Feliciano v. Lugay 13 we
categorized the issue concerning registration of voters, which Canicosa cited as a ground in his
petition for declaration of failure of election, as an administrative question. Likewise, questions
as to whether elections have been held or whether certain returns were falsified or
manufactured and therefore should be excluded from the canvass do not involve the right to
vote. Such questions are properly within the administrative jurisdiction of COMELEC, 14 hence,
may be acted upon directly by the COMELEC en banc without having to pass through any of its
divisions. prLL
WHEREFORE, finding no grave abuse of discretion committed by public respondent Commission
on Election, the petition is DISMISSED and its Resolution en banc of 23 May 1995 dismissing the
petition before it on the ground that the allegations therein did not justify a declaration of failure
of election is AFFIRMED.
SO ORDERED.

G.R. No. 120140. August 21, 1996.]

BENJAMIN U. BORJA, JR., petitioner, vs. COMMISSION ON ELECTIONS,
SYLLABUS
1.
POLITICAL LAW; ELECTION LAW; OMNIBUS ELECTION CODE; FAILURE OF
ELECTION; GROUNDS CITED IN CASE AT BAR ARE NOT PROPER IN A PETITION TO DECLARE A
FAILURE OF ELECTION. A petition to declare a failure of election is neither a preproclamation controversy as classified under Section 5(h), Rule 1 of the Revised COMELEC Rules
of Procedure, not an election case. It must be remembered that Capco was duly elected and
proclaimed as Mayor of Pateros. "Such proclamation enjoys the presumption of regularity and
validity." To destroy the presumption, Borja must convincingly show that his opponent's victory
was procured through extra-legal means. This he tried to do by alleging matters in his petition
which he thought constituted failure of election, such as lack of notice of the date and time of
canvass; fraud, violence, terrorism and analogous causes; disenfranchisement of voters;
presence of flying voters; and unqualified members of the Board of Election Inspectors. These
grounds, however, as correctly pointed out by the COMELEC, are proper only in an election
contest but not in a petition to declare a failure of election and to nullify a proclamation.
2.
ID.; ID.; ID.; ID.; INSTANCES WHEN A FAILURE OF ELECTION MAY BE DECLARED;
NOT PRESENT IN CASE AT BAR. Section 6 of the Omnibus Election Code is reiterated in
Section 2, Rule 26 of the Revised COMELEC Rules. In other words, the COMELEC can call for the
holding or continuation of election by reason of failure of election only when the election is not
held, is suspended or results in a failure to elect. The latter phrase, in turn, must be understood
in its literal sense, which is "nobody was elected." None of these circumstances is present in the
case at bar. At best, the "grounds" cited by Borja are simply events which give rise to the three
consequences just mentioned.
3.
ID.; ID.; ID.; ID.; CASE AT BAR; A CASE OF. In reality, Borja's petition was nothing
but a simple election protest 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.
DECISION
Petitioner Benjamin U. Borja, Jr. questions the authority of respondent Commission on Elections
en banc to hear and decide at the first instance a petition seeking to declare a failure of election
without the benefit of prior notice and hearing.
During the May 8, 1995 elections, Borja and private respondent Jose T. Capco vied for the
position of Mayor of the Municipality of Pateros which was won by Capco by a margin of 6,330
votes. Capco was consequently proclaimed and has since been serving as Mayor of Pateros.
Alleging lack of notice of the date and time of canvass, fraud, violence, terrorism and analogous
causes, such as disenfranchisement of voters, presence of flying voters, and unqualified
members of the Board of Election Inspectors, Borja filed before the COMELEC a petition to
declare a failure of election and to nullify the canvass and proclamation made by the Pateros
Board of Canvassers.
Concluding that the grounds relied upon by Borja were warranted only in an election contest,
the COMELEC en banc dismissed the petition in its resolution dated May 25, 1995. It declared
that "forced majeure, violence, terrorism, fraud and other analogous causes. . . . are merely the
causes which may give rise to the grounds to declare failure of elections." These grounds, which
include (a) no election held on the designated election date; (b) suspension of election before
the hour fixed by law for the closing of voting; and (c) election in any polling place resulted in a
failure to elect, were not present in Borja's petition.
Aggrieved by said resolution, petitioner elevated the matter to this Court, arguing the same
matters while claiming that the COMELEC committed grave abuse of discretion in issuing the
questioned resolution of May 25, 1995. He avers that the COMELEC en banc does not have the
power to hear and decide the merits of the petition he filed below because under Article IX-C,
Section 3 of the Constitution, all election cases, including pre-proclamation controversies, "shall

be heard and decided in division, provided that motions for reconsideration of decision shall be
decided by the Commission en banc."
After a careful scrutiny of petitioner's arguments, this Court finds the same to be untenable. The
petition must inevitably be dismissed.
In order to resolve the threshold issue formulated at the outset, there must first be a
determination as to whether a petition to declare a failure of election qualifies as an election
case or a pre-proclamation controversy. If it does, the Constitution mandates that it be heard
and adjudged by the COMELEC through any of its Divisions. The COMELEC en banc is only
empowered to resolve motions for reconsideration of cases decided by a Division for Article IXC, Section 3 of the Constitution expressly provides:
"SEC 3. The Commission on Elections may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to expedite disposition of election cases, including
pre-proclamation controversies. All such election cases shall be heard and decided in division,
provided that motions for reconsideration shall be decided by the Commission en banc."
In the case at bar, no one, much less the COMELEC, is disputing the mandate of the
aforequoted Article IX-C, Section 3 of the Constitution. As Borja himself maintained, the
soundness of this provision has already been affirmed by the Supreme Court in a number of
cases, albeit with some dissent. 1 In Ong, the Court declared that if a case raises "preproclamation issues, the COMELEC, sitting en banc, has no original jurisdiction" over the same.
Accordingly, said case should be remanded to the COMELEC which, in turn, will refer the same
to any of its Divisions for proper disposition.
A petition to declare a failure of election is neither a pre-proclamation controversy as classified
under Section 5(h), Rule 1 of the Revised COMELEC Rules of Procedure, nor an election case.
It must be remembered that Capco was duly elected and proclaimed as Mayor of Pateros. "Such
proclamation enjoys the presumption of regularity and validity." 2 To destroy the presumption,
Borja must convincingly show that his opponent's victory was procured through extra-legal
means. This he tried to do by alleging matters in his petition which he thought constituted
failure of election, such as lack of notice of the date and time of canvass; fraud, violence,
terrorism and analogous causes; disenfranchisement of voters; presence of flying voters; and
unqualified members of the Board of Election Inspectors. These grounds, however, as correctly
pointed out by the COMELEC, are proper only in an election contest but not in a petition to
declare a failure of election and to nullify a proclamation. Section 6 of the Omnibus Election
Code lays down the instances when a failure of election may be declared. It states thus:
"SEC. 6. Failure of Election. If, on account of force majeure, violence, terrorism, fraud, or
other analogous causes the election in any polling place has not been held on the date fixed, or
had been suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in the custody
or canvass thereof, such election results in a failure to elect, and in any of such cases the failure
or suspension of election would affect the result of the election, the Commission shall, on the
basis of a verified petition by any interested party and after due notice, and hearing, call for the
holding or continuation of the election not held, suspended or which resulted in a failure to elect
on a date reasonably close to the date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect."
The same provisions are reiterated under Section 2, Rule 26 of the Revised COMELEC Rules. In
other words, the COMELEC can call for the holding or continuation of election by reason of
failure of election only when the election is not held, is suspended or results in a failure to elect.
The latter phrase, in turn, must be understood in its literal sense, which is "nobody was
elected." None of these circumstances is present in the case at bar. At best, the "grounds" cited
by Borja are simply events which give rise to the three consequences just mentioned.
In reality, Borja's petition was nothing but a simple election protest 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. Section 251 states:
"Section 251.
Election contests for municipal offices. A sworn petition contesting the
election of a municipal officer shall be filed with the proper regional trial court by any candidate

who has duly filed a certificate of candidacy and has been voted for the same office, within ten
days after proclamation of the results of the election." (Emphasis supplied)
The COMELEC in turn exercises appellate jurisdiction over the trial court's decision pursuant to
Article IX-C, Section 2(2) of the Constitution which states:
"Sec. 2. The Commission on Elections shall exercise the following powers and functions:
xxx
xxx
xxx
(2)
Exercise exclusive original jurisdiction over all contests relating to the elections,
returns, and qualifications of all elective regional, provincial, and city officials, and appellate
jurisdiction over all contests involving elective municipal officials decided by trial courts of
general jurisdiction, or involving elective barangay officials decided by trial courts of limited
jurisdiction.
Decisions, final orders, or rulings of the Commission on election contests involving elective
municipal and barangay offices shall be final, executory, and not appealable."
The COMELEC, therefore, had no choice but to dismiss Borjas petition, not only for being
deficient in form but also for having been filed before the wrong tribunal. This reason need not
even be stated in the body of the decision as the same is patent on the face of the pleading
itself. Nor can Borja claim that he was denied due process because when the COMELEC en banc
reviewed and evaluated his petition, the same was tantamount to a fair "hearing" of his case.
The fact that Capco was not even ordered to rebut the allegations therein certainly did not
deprive him of his day in court. If anybody here was aggrieved by the alleged lack of notice and
hearing, it was Capco whose arguments were never ventilated. If he remained complacent, it
was because the COMELEC's actuation was favorable to him.
Certainly, the COMELEC cannot be said to have committed abuse of discretion, let alone grave
abuse thereof, in dismissing Borja's petition. For having applied the clear provisions of the law, it
deserves, not condemnation, but commendation.
WHEREFORE, the instant petition is hereby DISMISSED. The Resolution of the Commission on
Elections dated May 25, 1995 is hereby AFFIRMED. No pronouncement as to cost.
SO ORDERED.
G.R. No. 134913. January 19, 2001.
ZAIPAL D. BENITO, petitioner, vs. COMMISSION ON ELECTIONS, IBRAHIM
PAGAYAWAN, and the MUNICIPAL BOARD OF CANVASSERS OF CALANOGAS, LANAO
DEL SUR, respondents.
SYNOPSIS
When Calanogas, Lanao del Sur Mayoralty candidate Pagayawan won by 48 votes over
candidate Benito in the May 1998 elections, the latter filed a petition, among others, to declare
failure of election in precincts 15A, 6A/6A1 and 17A. Allegedly, five election precincts were
clustered in Sultan Disimban Elementary School, namely, precincts 15A, 6A/6A1, 17A, 2A/2A1
and 13A. On election day, voting was disrupted before noon by armed men. Benito asserted
that voting never resumed that day, contrary to the declaration of Pagayawan that voting
resumed at 1:00 o'clock in the afternoon. The Comelec ruled against Benito and, hence, this
petition for certiorari under Rule 65.
The contradictory declarations of the opposing parties are questions of facts and not proper
subjects of inquiry in a petition for certiorari under Rule 65. It is not grave abuse of discretion
for the Comelec to refuse giving credit to either party's version. At any rate, the Court noted
that it is odd that Benito singled out only 3 precincts when there were 2 other precincts in the
same school threatened by armed men. Further, there can not be a failure of election in a
political unit if the will of the majority has not been defiled and can be ascertained, as in the
case at bar. Hence, the Comelec's Resolution was affirmed and the petition for certiorari was
dismissed.
SYLLABUS
1.
POLITICAL LAW; OMNIBUS ELECTION LAWS; FAILURE OF ELECTION. It is the
COMELEC en banc which has the exclusive power to postpone, to declare a failure of election, or

to call a special election. In relation thereto, Section 6 of the Omnibus Election Code provides
for the failure of election. And elucidating on the provision of said section, we held in Hassan v.
Commission on Elections that two (2) pre-conditions must exist before a failure of election may
be declared, thus: (1) no voting has been held in any precinct or precincts due to force majeure,
violence or terrorism; and (2) the votes not cast therein are sufficient to affect the results of the
election. The cause of such failure may arise before or after the casting of votes or on the day
of the election.
2.
REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; GRAVE ABUSE OF
DISCRETION; ELUCIDATED. Grave abuse of discretion means "such capricious and whimsical
exercise of judgment as is equivalent to lack of jurisdiction, or, in other words where the power
is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it
must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal
to perform the duty enjoined or to act at all in contemplation of law." It is not sufficient that a
tribunal, in the exercise of its power, abused its discretion; such abuse must be grave.
3.
ID.; ID.; ID.; QUESTIONS OF FACT ARE NOT PROPER SUBJECTS IN CERTIORARI.
Petitioner raises issues foreign to the remedy he seeks. He avers that a failure of elections must
be declared in the precincts in question since the voting therein was interrupted by the sudden
and threatening arrival of armed goons of a rival candidate. He unequivocally states that there
was never any resumption of voting since the ballot boxes and other election materials were
taken into custody by the military and brought to the municipal hall. In contrast, it is private
respondent's contention that, in truth, voting resumed peacefully at about one o'clock in the
afternoon on election day or after the departure of the armed men. It is clear to us that whether
there was a resumption of voting is essentially a question of fact. Such are not proper subjects
of inquiry in a petition for certiorari under Rule 65. As regards the incident reports, evaluation of
evidentiary matters is beyond the province of a writ of certiorari. In any event, we find that the
COMELEC did not gravely abuse its discretion in refusing to give credit to either party's version.
4.
POLITICAL LAW; ELECTIONS; FAILURE OF ELECTION PRESENT ONLY IF THE WILL
OF MAJORITY CANNOT BE ASCERTAINED. In a sense, petitioner equates failure of elections
to the low percentage of votes cast vis-a-vis the number of registered voters in the subject
election precincts. However, [t]here can be failure in a political unit only if the will of the
majority has been defiled and cannot be ascertained. But, if it can be determined, it must be
accorded respect. After all, there is no provision in our election laws which requires that a
majority of registered voters must cast their votes. All the law requires is that a winning
candidate must be elected by a plurality of valid votes, regardless of the actual number of
ballots cast. Thus, even if less than 25% of the electorate in the questioned precincts cast their
votes, the same must still be respected. . . .
5.
ID.; ID.; FAILURE OF ELECTION DECLARED IN OTHER PRECINCTS DOES NOT
WARRANT DECLARATION OF THE SAME IN OTHER PRECINCTS OF THE PROVINCE.
Petitioner should not ask us to declare a failure of elections in the questioned precincts simply
because public respondent COMELEC declared a failure in other precincts in Lanao del Sur. In
the recently decided case of Pangandaman v. Commission on Elections, we unanimously upheld
the very same Omnibus Order dated July 14, 1998 relied upon by petitioner, on these premises:
. . . The propriety of declaring whether or not there has been a total failure of elections in the
entire province of Lanao del Sur is a factual issue which this Court will not delve into considering
that the COMELEC, through its deputized officials in the field, is in the best position to assess
the actual conditions prevailing in that area. Absent any showing of grave abuse of discretion,
the findings of fact of the COMELEC or any administrative agency exercising particular expertise
in its field of endeavor, are binding on the Court. There is no cogent reason to depart from the
general rule in this case.
DECISION
Before us is a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, seeking
the reversal of an en banc Resolution 1 dated August 10, 1998 by the public respondent
Commission on Elections (COMELEC, for brevity) which dismissed SPA No. 98-333, a petition to

declare a failure of elections and to call for a special elections in several precincts in the
Municipality of Calanogas, Lanao del Sur. AIDTSE
The facts are:
Petitioner ZAIPAL D. BENITO and private respondent IBRAHIM PAGAYAWAN were two (2) of
eight (8) candidates vying for the position of municipal mayor in Calanogas, Lanao del Sur
during the May 11, 1998 elections. Of the municipality's election precincts, five (5) were
clustered in Sultan Disimban Elementary School. These were precincts 15A (Barangay
Tagoranao), 6A/6A1 (Barangay Luguna), 17A (Barangay Tambak), 2A/2A1 (Barangay
Calalanoan), and 13A (Barangay Pindulonan). The election in the first three (3), namely
precincts 15A, 6A/6A1 and 17A are the subject of BENITO's petition to declare failure of
elections filed before the respondent COMELEC.
On the day of the election, voting started peacefully at the polling place. Shortly before noon,
however, the proceedings were interrupted when some thirty (30) armed men appeared at the
school premises and fired shots into the air. This sowed panic among the voters and election
officials, causing them to scatter in different directions. A spot report 2 issued by the
commanding officer of the Alfa Company, 28th Infantry Battalion, 4th Infantry Division of the
Philippine Army, Captain Benedicto S. Manquiquis summarized the incident in the following
manner:
00a 1113009 May 98, election held at Sultan Disimban Elem school comprising Brgys. Luguna,
Calalanoan, Pindolonan, Tagoranao, and Tambak. All of Calanogas Lanao del Sur was
suspended when more or less 30 armed men with cal. 30 LMG under Mayoralty candidate
Jabbar Macapodi Maruhom fired shots on the air which cause the voters and BEIs to scamper in
different direction
(signed)
BENEDICTO S. MANQUIQUIS
CAPT (INF) PA
CO, "A" CO, ISIB, 4ID
Both parties contest alleged events transpiring after the interruption of the voting. By
petitioner's account, the ballot boxes and other election materials were taken to the municipal
hall by the military forces providing security. From then on, the voting allegedly never resumed,
even when voters who had not yet cast their ballots returned to their respective polling places
after the lawless elements had left.
In direct opposition, private respondent avers that voting in fact resumed when the armed men
left at about 1:00 o'clock in the afternoon. There were no further untoward incidents until voting
closed at 3:00 o'clock. As proof, private respondent submitted a "Final Incident Report" 3 issued
by the same Captain Manquiquis, the full text of which is hereunder reproduced:
"HEADQUARTERS
ALFA COMPANY, 28th INFANTRY BATTALION, 4th INF DIV, PA
Calanugas, Lanao del Sur
28A
11 May 1998
SUBJECT: Final Incident Report
TO:
Atty. Wynnie Asdala
Head, COMELEC Task Force Team
Marawi City
THRU:
Acting Election Officer
Calanugas, Lanao del Sur
1.
00A 111200H May 98, election held at Sultan Disimban Elementary School comprising
Brgys Laguna, Calalanoan, Pindulonan, Tagoranao and Tambak all of Calanugas, Lanao del Sur
was suspended when more or less thirty (30) armed men equipped with HPFAs including Cal.
.30 LMG under Mayoralty Candidate Jabbar Macapodi Maruhom fired shots on the air which
cause the voters and BEIs to scamper into different directions.
2.
That about one (1) hour thereafter, the voting resumed in an orderly and peaceful
manner until about 1500H same day without any trouble or untoward incident. After 1500H
when no voter was in the premises of the voting precincts, the casting of votes was closed by
the different BEIs.

(signed)
BENEDICTO S. MANQUIQUIS
Capt (INF) PA
Commanding Officer"
These turn of events, notwithstanding, the ballot boxes for the five (5) precincts in Disimban
Elementary School were taken together with those from the nineteen (19) other precincts of
Calanogas, to Marawi City for counting. The votes from precincts 15A, 6A/6A1 and 17A were
excluded upon objection by petitioner's counsel who, it is claimed, arrived only after the ballots
from the other nineteen (19) precincts had already been tabulated.
After counting; these results emerged: EHTIDA
CANDIDATE
NO. OF VOTES
Ibrahim Pagayawan 927
Zaipal Benito
879
Amoran Macaborod 524
Jabbar Maruhom
(no data available)
Private respondent won over petitioner by forty-eight (48) votes.
On the other hand, the total votes cast for the three (3) excluded precincts numbered forty-one
(41) only, which is broken down as follows:
PRECINCT
NO. OF REGISTERED VOTERS VOTES CAST
15A
6A/6A1
17A

177
1
225
19
188
21

TOTAL
590
41
Considering that private respondent would still lead petitioner by seven (7) votes even if all
forty-one (41) votes from the three (3) excluded precincts were counted in the latter's favor,
private respondent was proclaimed mayor of Calanogas.
On May 25, 1998, petitioner filed an amended petition 4 to declare failure of election and to call
a special elections in precincts 15A, 6A/6A1 and 17A, docketed as SPA No. 98-333. He also filed
a separate petition 5 for the annulment of the proclamation of private respondent, docketed as
SPC No. 98-159.
On June 10, 1998, the COMELEC issued an Order 6 consolidating SPC No. 98-159 with SPA No.
98-333. On June 29, 1998, it also issued Resolution No. 3049 7 wherein SPA No. 98-333 and
SPA No. 98-159 were included among those cases certified as active even beyond June 30,
1998.
Abbreviating the proceedings, after the parties had filed their respective answers, replies,
memoranda, and other related pleadings, on August 10, 1998, the COMELEC issued the assailed
resolution, the dispositive portion of which reads:
WHEREFORE, premises considered, the petition is hereby dismissed for lack of merit. Precincts
6A/6A1, 15A and 17A functioned on 11 May 1998 elections. The Municipal Board of Canvassers
of Calanogas, Lanao del Sur is hereby ordered to reconvene and count the remaining uncounted
votes for the three precincts aforementioned. Thereafter, they shall proclaim the three other unproclaimed municipal councilors and enter the correct votes garnered by the parties in the
Consolidation of Votes and Proclamation.
Considering that the remaining uncounted votes will no longer affect the lead of the winning
candidate for the position of mayor, the Commission hereby affirms the proclamation made by
the Municipal Board of Canvassers of Calanogas, Lanao del Sur.
Hence, the instant petition.
The following issues are submitted for our resolution:
1.
WHETHER OR NOT THE COMELEC ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION (A) IN DISMISSING THE PETITION OF
PETITIONER DOCKETED AS SPA NO. 98-333 (INCLUDING SPC 98-159 WHICH WAS
CONSOLIDATED TO SPA 98-333 BY ORDER OF THE COMELEC ON JUNE 10, 1998) FOR LACK OF

MERIT AND (B) IN DECLARING THAT THE ELECTIONS IN PRECINCTS 6A & 6A1, 15A AND 17A
HAVE CONTINUED AN HOUR AFTER THEY WERE SUSPENDED ON THE BASIS OF THE ALLEGED
FINAL REPORT OF CAPTAIN MANQUIQUIS;
2.
WHETHER OR NOT THE COMELEC ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT HOLDING A SPECIAL ELECTION
IN PRECINCT NOS. 15A, 6A & 6A1 AND 17A ON GROUND OF FAILURE OF ELECTION OR OF A
SUSPENDED ELECTION BEFORE THE CLOSING OF THE VOTING AT 3:00 O'CLOCK IN THE
AFTERNOON OF THE MAY 11, 1998 ELECTION DAY ON GROUND OF THREATS, VIOLENCE AND
TERRORISM; AND AIHaCc
3.
WHETHER OR NOT THE COMELEC ACTED WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT ANNULLING THE CERTIFICATE
OF PROCLAMATION OF PRIVATE RESPONDENT DATED MAY 15, 1998.
It is the COMELEC en banc which has the exclusive power to postpone, to declare a failure of
election, or to call a special election. 8 In relation thereto, Section 6 of the Omnibus Election
Code 9 provides:
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 such cases the
failure or suspension of election would affect the result of the election, the Commission shall, on
the basis of a verified petition by any interested party and after due notice and hearing, call for
the holding or continuation of the election not held, suspended or which resulted in a failure to
elect on a date reasonably close to the date of the election not held, suspended or which
resulted in a failure to elect but not later than thirty days after the cessation of the cause of
such postponement or suspension of the election or failure to elect.
Elucidating on the aforesaid provision, we held in Hassan v. Commission on Elections 10 that
two (2) pre-conditions must exist before a failure of election may be declared, thus: (1) no
voting has been held in any precinct or precincts due to force majeure, violence or terrorism;
and (2) the votes not cast therein are sufficient to affect the results of the election. The cause of
such failure may arise before or after the casting of votes or on the day of the election. 11
Coming to the merits of the petition, we are not sufficiently persuaded that the public
respondent COMELEC gravely abused its discretion in denying BENITO's petition to declare a
failure of election in precincts 15A, 6A/6A1 and 17A of Calanogas. Grave abuse of discretion
means "such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction, or, in other words where the power is exercised in an arbitrary or despotic manner
by reason of passion or personal hostility, and it must be so patent and gross as to amount to
an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in
contemplation of law." 12 It is not sufficient that a tribunal, in the exercise of its power, abused
its discretion; such abuse must be grave. 13
It is obvious at the outset that petitioner raises issues foreign to the remedy he seeks. He avers
that a failure of elections must be declared in the precincts in question since the voting therein
was interrupted by the sudden and threatening arrival of armed goons of a rival candidate. He
unequivocally states that there was never any resumption of voting since the ballot boxes and
other election materials were taken into custody by the military and brought to the municipal
hall. In contrast, it is private respondent's contention that, in truth, voting resumed peacefully at
about one o'clock in the afternoon on election day or after the departure of the armed men. It is
clear to us that whether there was a resumption of voting is essentially a question of fact. Such
are not proper subjects of inquiry in a petition for certiorari under Rule 65. 14
In the same vein, neither may petitioner ask us to judge which of the two (2) incident reports
issued by Captain Manquiquis should be given more credence. In this connection, it will not be
amiss to point out that the purported inconsistency between the two reports appear to be more
imaginary than real. Petitioner characterizes the final incident report as "a product of
falsification" on the ground that its alleged time and date of execution was at "OOA 111200H
May 98" whereas the handwritten spot report was prepared at "OOa 111300H May 98." How

then, petitioner bewails, could such a final report have been issued ahead of the initial report?
We disagree with petitioner; we have read the final incident report and conclude that the time
stated therein referred not to the time of execution of the said report but to the time of the
occurrence of the incident. We note that this is an approximation of the time when the armed
strangers appeared and disrupted the theretofore peaceful conduct of the elections.
Similarly, nor would it be proper for us to pass upon the authenticity of the contradictory
affidavits supposedly executed by the members of the board of election inspectors of the
affected precincts. Both parties seek to introduce into evidence affidavits ostensibly executed by
the same persons yet whose recitations are contradictory to each other. As regards the incident
reports, evaluation of evidentiary matters is beyond the province of a writ of certiorari. 15 In
any event, we find that the COMELEC did not gravely abuse its discretion in refusing to give
credit either party's version. Naturally, petitioner and private respondent attest to the
authenticity of the affidavits favorable to them. To illustrate, petitioner insists that the
genuineness of the affidavits attached to the amended petition he filed before the COMELEC is
allegedly confirmed by the second set of affidavits 16 in turn repudiating those relied upon by
private respondent in his answer. 17 Just as the COMELEC was reluctant to treat petitioner's
claim as gospel truth, so too do we hesitate to accord weight to this rigmarole of sworn
statements. As aptly held by the COMELEC, EScIAa
In his reply, petitioner vehemently denied the allegation of respondent that the voting in the
three precincts continued. He again presented the affidavits of the members of the different
BEIs saying that they did not execute the affidavits presented by respondent Pagayawan and
that their signatures therein were forged. On its face, however, the signatures appear to have
been made by the same persons. This notwithstanding, WE shall not base our resolution of this
case on the affidavits submitted by the members of the different BEIs for the reason that they
are contradictory to each other but rather on the merits of the pleadings and other evidences
presented.
In dismissing BENITO's petition for lack of merit, the COMELEC further ruled thus:
It is noteworthy to mention that of all the five precincts whose elections were held in Disimban
Elementary School, petitioner Benito claimed only three precincts failed to function therein. In
fact he reiterated this in his reply though averring that he has no objection to Macaborod's
prayer that failure of election be likewise declared in precinct nos. 2A/2A1 and 13A and that
special election be also held therein. Records of the case per pleadings of the parties show that
results of the elections in nineteen (19) precincts out of the twenty two (22) precincts were
already counted. Verification on the project of precincts also showed that there were actually
five precincts whose polling places were in Disimban Elementary School. Per report of the Acting
Election Officer of Calanogas, it was only the counting of votes in precincts 6A/6A1, 15A, and
17A which was actually objected by the counsels of petitioner. The strong objections to the
counting of the three precincts prompted by Atty. Wynne Asdala (COMELEC TASK FORCE) and
Col. Atienza (PA) to suspend the counting of votes for the municipality of Calanogas.
The Commission gives more weight to the report made by Captain Manquiquis whose final
report to the Commission says that the voting resumed an hour after the firing occurred which
disrupted the voting in all the five precincts clustered in Disimban Elementary School. His final
report dated 11 May 1998 confirms that no failure of elections in the five precincts occurred.
This is buttressed by the fact that counsels of petitioner and all other parties and candidates
during the counting did not question the counting of votes for precincts 2A/2A1 and 13A whose
polling place were also in the same school. This fact gives us the impression that indeed voting
in all the five precincts resumed after peace and order was re-established in Disimban Elem.
School. There was no objection raised to the count of votes in the said two precincts during the
counting of votes at the counting center. So why a selective objection to the three precincts
herein? Even candidate Macaborod did not object to the count of the other two precincts namely
2A/2A1 and 13A. If votes for precincts 2A/2A1 and 13A were counted, the same must also be
done for precincts 6A/6A1, 15A, and 17A notwithstanding the fact that only very few voters cast
their votes. The disruption of voting in all these precincts was caused by the same act: firing
guns to intimidate all the voters therein to stop them from casting their votes. If voters in these
precincts really wanted to vote, they could have done so after the cessation of the terroristic

acts. In precinct 15A, at 11:45 A.M., only one vote was cast therein. Lack of interest may have
been the problem herein that the cause alluded to by petitioner.
After a careful consideration of the parties' submissions, we find that the COMELEC did not
gravely abuse its discretion in denying BENITO's petition to declare a failure to election and to
call a special election. It is indeed odd that petitioner singles out only precincts 15A, 6A/6A1 and
17A as the subjects of his petition when there were two (2) other precincts in the same school.
18 It was only in his reply with memorandum 19 did he signify his lack of objection to a
declaration of failure of election in precincts 2A/2A1 and 13A, as prayed for by candidate
Amoran Macaborod's answer with counter-petition. 20 Likewise, he never objected to the
inclusion of the two (2) other precincts during the canvassing and counting of votes.
Petitioner attempts to overcome the oversight by alleging that he had no opportunity to object
thereto because his counsel, Atty. Hussein N. Mambuay, was not present, allegedly because the
latter did not possess the prescribed identification for lawyers. In this regard, we have reviewed
the record and we concur with private respondent that this claim of petitioner appears to be a
mere afterthought. Petitioner never raised this particular issue in his earlier pleadings filed with
the COMELEC. Be that as it may, his counsel should have exercised more prudence in securing
beforehand his proper identification papers.
In a sense, petitioner equates failure of elections to the low percentage of votes cast vis-a-vis
the number of registered voters in the subject election precincts. However, aCATSI
[t]here can be failure of election in a political unit only if the will of the majority has been defiled
and cannot be ascertained. But, if it can be determined, it must be accorded respect. After all,
there is no provision in our election laws which requires that a majority of registered voters
must cast their votes. All the law requires is that a winning candidate must be elected by a
plurality of valid votes, regardless of the actual number of ballots cast. Thus, even if less than
25% of the electorate in the questioned precincts cast their votes, the same must still be
respected . . . 21
As we also explained in Sardea v. Commission on Elections, 22
The power to throw out or annul an election should be exercised with the utmost care and only
under circumstances which demonstrate beyond doubt either that the disregard of the law had
been so fundamental or so persistent and continuous that it is impossible to distinguish what
votes are lawful and what are unlawful, or to arrive at any certain result whatsoever, or that the
great body of voters have been prevented by violence, intimidation and threats from exercising
their franchise [citations omitted]
xxx
xxx
xxx
There is failure of elections only when the will of the electorate has been muted and cannot be
ascertained. If the will of the people is determinable, the same must as far as possible be
respected.
A final observation: petitioner should not ask us to declare a failure of elections in the
questioned precincts simply because public respondent COMELEC declared a failure in other
precincts in Lanao del Sur. In the recently decided case of Pangandaman v. Commission on
Elections, 23 unanimously 24 upheld the very same Omnibus Order 25 dated July 14, 1998
relied upon by petitioner, on these premises:
Petitioner's argument that respondent COMELEC gravely abused its discretion by failing to
declare a total failure of elections in the entire province of Lanao del Sur and to certify the same
to the President and Congress so that the necessary legislation may be enacted for the holding
of a special election, likewise fails to persuade.
No less than the petitioner himself concedes that there was total failure of elections in twelve
(12) municipalities and partial failure in eleven (11). Yet he now insists a total failure of elections
should have been declared in the entire province of Lanao del Sur. Suffice it to state that the
propriety of declaring whether or not there has been a total failure of elections in the entire
province of Lanao del Sur is a factual issue which this Court will not delve into considering that
the COMELEC, through its deputized officials in the field, is in the best position to assess the
actual conditions prevailing in that area. Absent any showing of grave abuse of discretion, the
findings of fact of the COMELEC or any administrative agency exercising particular expertise in

its field of endeavor, are binding on the Court. There is no cogent reason to depart from the
general rule in this case.
Hence, in view of all the foregoing we find no reason to disturb the Resolution of COMELEC
under review.
WHEREFORE petition for certiorari is hereby DISMISSED for lack of merit.
SO ORDERED.
G.R. No. 160427. September 15, 2004.]
POLALA SAMBARANI, JAMAL MIRAATO, SAMERA ABUBACAR and MACABIGUNG
MASCARA, petitioners, vs. COMMISSION ON ELECTIONS
SYNOPSIS
Due to a failure of elections in eleven barangays in Lanao del Sur in the 15 July 2002
Synchronized Barangay and Sangguniang Kabataan Elections, the Acting Election Officer issued
a certification that there were no special elections held on 13 August 2002. Consequently,
petitioners who ran for re-election as punong barangay in their respective barangays, filed a
Joint Petition seeking to declare a failure of elections in the five barangays and the holding of
another special election. The Commission on Elections (COMELEC) issued the assailed
Resolution directing the Department of Interior and Local Government to proceed with the
appointment of Barangay Captains and Barangay Kagawads as well as SK Chairmen and SK
Kagawads in the five (5) Barangays. The COMELEC ruled that to hold another special election in
these barangays as prayed for by petitioners is untenable because it is no longer in a position to
call for another special election since Section 6 of the Omnibus Election Code provides that
"special elections shall be held on a date reasonably close to the date of the election not held,
but not later than thirty days after cessation of the cause of such postponement." The COMELEC
noted that more than thirty days had elapsed since the failed election. Hence, the present
petition. IaHCAD
The Supreme Court found the petition meritorious. The prohibition on conducting special
elections after thirty days from the cessation of the cause of the failure of elections is not
absolute. It is directory, not mandatory, and the COMELEC possesses residual power to conduct
special elections even beyond the deadline prescribed by law. The deadline in Section 6 cannot
defeat the right of suffrage of the people as guaranteed by the Constitution. The COMELEC
erroneously perceived that the deadline in Section 6 is absolute. The COMELEC has broad power
or authority to fix other dates for special elections to enable the people to exercise their right of
suffrage. The COMELEC may fix other dates for the conduct of special elections when the same
cannot be reasonably held within the period prescribed by law. The Court also ruled that since
there was a failure of elections, petitioners can legally remain in office as barangay chairmen of
their respective barangays in a hold-over capacity. They shall continue to discharge their powers
and duties as punong barangay, and enjoy the rights and privileges pertaining to the office.
True, Section 43 (c) of the Local Government Code limits the term of elective barangay officials
to three years. However, Section 5 of RA 9164 explicitly provides that incumbent barangay
officials may continue in office in a hold over capacity until their successors are elected and
qualified.
SYLLABUS
1.
POLITICAL LAW; ELECTION LAWS; COMMISSION ON ELECTIONS; THE FACT THAT
THE ELECTIONS INVOLVED IN THE PRESENT CASE PERTAIN TO THE LOWEST LEVEL OF
POLITICAL ORGANIZATION IS NOT JUSTIFICATION TO DISENFRANCHISE THE VOTERS. An
election is the embodiment of the popular will, the expression of the sovereign power of the
people. It involves the choice or selection of candidates to public office by popular vote. The
right of suffrage is enshrined in the Constitution because through suffrage the people exercise
their sovereign authority to choose their representatives in the governance of the State. The
fact that the elections involved in this case pertain to the lowest level of our political
organization is not a justification to disenfranchise voters. IEAacS

2.
ID.; ID.; ID.; FAILURE OF ELECTION; PROHIBITION ON CONDUCTING SPECIAL
ELECTIONS AFTER THIRTY DAYS FROM THE CESSATION OF THE CAUSE OF FAILURE OF
ELECTIONS IS NOT ABSOLUTE AND THE COMMISSION POSSESSES RESIDUAL POWER TO
CONDUCT SPECIAL ELECTIONS EVEN BEYOND THE DEADLINE PRESCRIBED BY LAW. The
prohibition on conducting special elections after thirty days from the cessation of the cause of
the failure of elections is not absolute. It is directory, not mandatory, and the COMELEC
possesses residual power to conduct special elections even beyond the deadline prescribed by
law. The deadline in Section 6 cannot defeat the right of suffrage of the people as guaranteed
by the Constitution. The COMELEC erroneously perceived that the deadline in Section 6 is
absolute. The COMELEC has broad power or authority to fix other dates for special elections to
enable the people to exercise their right of suffrage. The COMELEC may fix other dates for the
conduct of special elections when the same cannot be reasonably held within the period
prescribed by law. More in point is Section 45 of the Omnibus Election Code ("Section 45")
which specifically deals with the election of barangay officials. Unlike Section 6, Section 45 does
not state that special elections should be held on a date reasonably close to the date of the
election not held. Instead, Section 45 states that special elections should be held within thirty
days from the cessation of the causes for postponement. Logically, special elections could be
held anytime, provided the date of the special elections is within thirty days from the time the
cause of postponement has ceased.
3.
ID.; ID.; ID.; COMELEC'S REASONS FOR REFUSING TO HOLD ANOTHER SPECIAL
ELECTION ARE DEVOID OF MERIT; THE OPERATIONAL, LOGISTICAL AND FINANCIAL
PROBLEMS WHICH COMELEC CLAIMS IT WILL ENCOUNTER WITH THE HOLDING OF A SECOND
SPECIAL ELECTION CAN BE SOLVED WITH PROPER PLANNING, COORDINATION, AND
COOPERATION AMONG PERSONNEL AND OTHER DEPUTIZED AGENCIES OF THE
GOVERNMENT. Had the COMELEC resolved to hold special elections in its Resolution dated 8
October 2003, it would not be as pressed for time as it is now. The operational, logistical and
financial problems which COMELEC claims it will encounter with the holding of a second special
election can be solved with proper planning, coordination and cooperation among its personnel
and other deputized agencies of the government. A special election will require extraordinary
efforts, but it is not impossible. In applying election laws, it would be better to err in favor of
popular sovereignty than to be right in complex but little understood legalisms. In any event,
this Court had already held that special elections under Section 6 would entail minimal costs
because it covers only the precincts in the affected barangays. In this case, the cause of
postponement after the second failure of elections was COMELEC's refusal to hold a special
election because of (1) its erroneous interpretation of the law, and (2) its perceived logistical,
operational and financial problems. We rule that COMELEC's reasons for refusing to hold
another special election are void. SIcEHC
4.
ID.; ID.; ID.; SYNCHRONIZED BARANGAY AND SANGGUNIANG KABATAAN
ELECTIONS ACT; HOLD OVER CAPACITY OF ELECTED OFFICIALS; INCUMBENT BARANGAY
OFFICIALS AND SANGGUNIANG KABATAAN OFFICIALS CAN REMAIN IN OFFICE UNTIL THEIR
SUCCESSORS SHALL HAVE BEEN ELECTED OR QUALIFIED. Section 5 of Republic Act No.
9164 ("RA 9164") provides: Sec. 5. Hold Over. All incumbent barangay officials and
sangguniang kabataan officials shall remain in office unless sooner removed or suspended for
cause until their successors shall have been elected and qualified. The provisions of the
Omnibus Election Code relative to failure of elections and special elections are hereby reiterated
in this Act. RA 9164 is now the law that fixes the date of barangay and SK elections, prescribes
the term of office of barangay and SK officials, and provides for the qualifications of candidates
and voters for the SK elections. As the law now stands, the language of Section 5 of RA 9164 is
clear. It is the duty of this Court to apply the plain meaning of the language of Section 5. Since
there was a failure of elections in the 15 July 2002 regular elections and in the 13 August 2002
special elections, petitioners can legally remain in office as barangay chairmen of their
respective barangays in a hold-over capacity. They shall continue to discharge their powers and
duties as punong barangay, and enjoy the rights and privileges pertaining to the office. True,
Section 43(c) of the Local Government Code limits the term of elective barangay officials to
three years. However, Section 5 of RA 9164 explicitly provides that incumbent barangay officials

may continue in office in a hold over capacity until their successors are elected and qualified.
Section 5 of RA 9164 reiterates Section 4 of RA 6679 which provides that "[A]ll incumbent
barangay officials . . . shall remain in office unless sooner removed or suspended for cause . . .
until their successors shall have been elected and qualified." Section 8 of the same RA 6679 also
states that incumbent elective barangay officials running for the same office "shall continue to
hold office until their successors shall have been elected and qualified." The application of the
hold-over principle preserves continuity in the transaction of official business and prevents a
hiatus in government pending the assumption of a successor into office. As held in Topacio
Nueno v. Angeles, cases of extreme necessity justify the application of the hold-over principle.
DECISION
The Case
Challenged in this petition for certiorari 1 with prayer for temporary restraining order and
preliminary injunction is the Resolution of the Commission on Elections en banc (COMELEC) 2
dated 8 October 2003. The COMELEC declared a failure of election but refused to conduct
another special election. IEaHSD
The Facts
In the 15 July 2002 Synchronized Barangay and Sangguniang Kabataan Elections (elections),
Polala Sambarani (Sambarani), Jamal Miraato (Miraato), Samera Abubacar (Abubacar),
Macabigung Mascara (Mascara) and Aliasgar Dayondong (Dayondong) ran for re-election as
punong barangay in their respective barangays, namely: Occidental Linuk, Pindolonan Moriatao
Sarip, Talub, New Lumbacaingud, and Tatayawan South (five barangays), all in Tamparan,
Lanao del Sur.
Due to a failure of elections in eleven barangays in Lanao del Sur, the COMELEC issued
Resolution No. 5479 setting special elections on 13 August 2002 in the affected barangays in
Lanao del Sur including the five barangays. On 14 August 2002, Acting Election Officer Esmael
Maulay (EO Maulay) issued a certification that there were no special elections held on 13
August 2002.
Consequently, Sambarani, Miraato, Abubacar, Mascara and Dayondong (joint-petitioners) filed
a Joint Petition seeking to declare a failure of elections in the five barangays and the holding of
another special election. The Joint Petition attributed the failure of the special elections to EO
Maulays non-compliance with COMELEC Commissioner Mehol K. Sadains (Commissioner
Sadain) directive. Commissioner Sadain had directed EO Maulay to use the Autonomous Region
of Muslim Mindanao (ARMM) 2001 computerized Voters List and the Voters Registration
Records of the Provincial Election Officer during the December 2001 registration of new voters.
ISEHTa
The parties did not attend the hearing scheduled on 11 September 2002 despite due notice. In
the 1 October 2002 hearing, counsel for joint-petitioners as well as EO Maulay and his counsel
appeared. The COMELEC ordered the parties to submit their memoranda within 20 days. The
COMELEC also directed EO Maulay to explain in writing why he should not be administratively
charged for failing to comply with Commissioner Sadains directive. The joint-petitioners filed
their Memorandum on 25 October 2002. EO Maulay did not file a memorandum or a written
explanation as directed. The COMELEC considered the case submitted for resolution.
On 8 October 2003, the COMELEC issued the assailed Resolution, disposing as follows:
ACCORDINGLY, the Department of Interior and Local Government is hereby DIRECTED to
proceed with the appointment of Barangay Captains and Barangay Kagawads as well as SK
Chairmen and SK Kagawads in Barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub,
Tatayawan South, and New Lumbacaingud, all of Tamparan, Lanao del Sur, in accordance with
the pertinent provisions of Republic Act No. 7160, otherwise known as the Local Government
Code of 1991, and other related laws on the matter.
Let a copy of this Resolution be furnished to the Department of Interior and Local Government,
the Municipality of Tamparan, Lanao [d]el Sur, and the respective Sangguniang Barangays of
Barangays Occidental Linuk, Pindolonan Moriatao Sarip, Talub, Tatayawan South and New
Lumbacaingud, of Tamparan.

Finally, let a copy of this Resolution be furnished to the Law Department for Preliminary
Investigation of Respondent ESMAEL MAULAY for possible commission of election offense/s, and
consequently, the filing of administrative charges against him if warranted. CIAacS
SO ORDERED. 3
Sambarani, Miraato, Abubacar and Mascara (petitioners) filed the instant petition. 4
The COMELECs Ruling
The COMELEC agreed with petitioners that the special elections held on 13 August 2002 in the
five barangays failed. The COMELEC, however, ruled that to hold another special election in
these barangays as prayed for by petitioners is untenable. The COMELEC explained that it is no
longer in a position to call for another special election since Section 6 of the Omnibus Election
Code provides that special elections shall be held on a date reasonably close to the date of the
election not held, but not later than thirty days after cessation of the cause of such
postponement. The COMELEC noted that more than thirty days had elapsed since the failed
election.
The COMELEC also pointed out that to hold another special election in these barangays will not
only be tedious and cumbersome, but a waste of its precious resources. The COMELEC left to
the Department of Interior and Local Government (DILG) the process of appointing the
Barangay Captains and Barangay Kagawads as well as the Sangguniang Kabataan (SK)
Chairmen and SK Kagawads in these barangays in accordance with the Local Government Code
of 1991 and other related laws on the matter. 5
The Issues
Petitioners contend that the COMELEC acted with grave abuse of discretion amounting to lack of
jurisdiction in
1.
Denying the prayer to call for another special election in barangays Occidental Linuk,
Pindolonan Moriatao Sarip, Talub, New Lumbacaingud (subject barangays);
2.
Directing the DILG to proceed with the appointment of the barangay captains,
barangay kagawads, SK chairmen and SK kagawads in the subject barangays;
3.
Not declaring the petitioners as the rightful incumbent barangay chairmen of their
office until their successors have been elected and qualified.
The Courts Ruling
The petition is meritorious. AaDSTH
First Issue: Whether To Call Another Special Election
Petitioners fault the COMELEC for not holding another special election after the failed 13 August
2002 special election. Petitioners insist that the special barangay and SK elections in the subject
barangays failed because EO Maulay did not use the voters list used during the 2001 ARMM
elections. Neither did Maulay segregate and exclude those voters whose Voters Registration
Records (VRRs) were not among those 500 VRRs bearing serial numbers 00097501 to
0009800 allocated and released to Tamparan. Finally, Maulay did not delete from the certified
list of candidates the name of disqualified candidate Candidato Manding. Petitioners contend
that COMELECs refusal to call another special election conflicts with established jurisprudence,
specifically the ruling in Basher v. Commission on Elections. 6
The Solicitor General supports the COMELECs stance that a special election can be held only
within thirty days after the cause of postponement or failure of election has ceased. The
Solicitor General also maintains that the DILG has the power to appoint and fill vacancies in the
concerned elective barangay and SK offices.
Section 2(1) of Article IX(C) of the Constitution gives the COMELEC the broad power to enforce
and administer all laws and regulations relative to the conduct of an election, plebiscite,
initiative, referendum, and recall. Indisputably, the text and intent of this constitutional
provision is to give COMELEC all the necessary and incidental powers for it to achieve its
primordial objective of holding free, orderly, honest, peaceful and credible elections. 7
The functions of the COMELEC under the Constitution are essentially executive and
administrative in nature. It is elementary in administrative law that courts will not interfere in
matters which are addressed to the sound discretion of government agencies entrusted with the
regulation of activities coming under the special technical knowledge and training of such

agencies. 8 The authority given to COMELEC to declare a failure of elections and to call for
special elections falls under its administrative function. 9
The marked trend in our laws has been to grant the COMELEC ample latitude so it can more
effectively perform its duty in safeguarding the sanctity of our elections. But what if, as in this
case, the COMELEC refuses to hold elections due to operational, logistical and financial
problems? Did the COMELEC gravely abuse its discretion in refusing to conduct a second special
Barangay and SK elections in the subject barangays? ADTEaI
Neither the candidates nor the voters of the affected barangays caused the failure of the special
elections. The COMELECs own acting election officer, EO Maulay, readily admitted that there
were no special elections in these barangays. The COMELEC also found that the Provincial
Election Supervisor of Lanao del Sur and the Regional Election Director of Region XII did not
contest the fact that there were no special elections in these barangays.
An election is the embodiment of the popular will, the expression of the sovereign power of the
people. 10 It involves the choice or selection of candidates to public office by popular vote. 11
The right of suffrage is enshrined in the Constitution because through suffrage the people
exercise their sovereign authority to choose their representatives in the governance of the State.
The fact that the elections involved in this case pertain to the lowest level of our political
organization is not a justification to disenfranchise voters.
COMELEC anchored its refusal to call another special election on the last portion of Section 6 of
the Omnibus Election Code ( Section 6) which reads:
SEC. 6. Failure of election. If, on account of force majeure, violence, terrorism, fraud, or
other analogous cases the election in any polling place has not been held on the date fixed, or
had been suspended before the hour fixed by law for the closing of the voting, or after the
voting and during the preparation and the transmission of the election returns or in the custody
or canvass thereof, such election results in a failure to elect, and in any of such cases the failure
or suspension of election would affect the result of the election, the Commission shall, on the
basis of a verified petition by any interested party and after due notice and hearing, call for the
holding or continuation of the election not held, suspended or which resulted in a failure to elect
on a date reasonably close to the date of the election not held, suspended or which resulted in a
failure to elect but not later than thirty days after the cessation of the cause of such
postponement or suspension of the election or failure to elect. (Emphasis supplied)
The Court construed Section 6 in Pangandaman v. COMELEC, 12 as follows
In fixing the date for special elections the COMELEC should see to it that: 1.] it should not be
later than thirty (30) days after the cessation of the cause of the postponement or suspension of
the election or the failure to elect; and, 2.] it should be reasonably close to the date of the
election not held, suspended or which resulted in the failure to elect. The first involves a
question of fact. The second must be determined in the light of the peculiar circumstances of a
case. Thus, the holding of elections within the next few months from the cessation of the cause
of the postponement, suspension or failure to elect may still be considered reasonably close to
the date of the election not held. (Emphasis supplied)
The prohibition on conducting special elections after thirty days from the cessation of the cause
of the failure of elections is not absolute. It is directory, not mandatory, and the COMELEC
possesses residual power to conduct special elections even beyond the deadline prescribed by
law. The deadline in Section 6 cannot defeat the right of suffrage of the people as guaranteed
by the Constitution. The COMELEC erroneously perceived that the deadline in Section 6 is
absolute. The COMELEC has broad power or authority to fix other dates for special elections to
enable the people to exercise their right of suffrage. The COMELEC may fix other dates for the
conduct of special elections when the same cannot be reasonably held within the period
prescribed by law. AcTDaH
More in point is Section 45 of the Omnibus Election Code (Section 45) which specifically deals
with the election of barangay officials. Section 45 provides:
SEC. 45. Postponement or failure of election. When for any serious cause such as violence,
terrorism, loss or destruction of election paraphernalia or records, force majeure, and other
analogous causes of such nature that the holding of a free, orderly and honest election should
become impossible in any barangay, the Commission, upon a verified petition of an interested

party and after due notice and hearing at which the interested parties are given equal
opportunity to be heard, shall postpone the election therein for such time as it may deem
necessary.
If, on account of force majeure, violence, terrorism, fraud or other analogous causes, the
election in any barangay has not been held on the date herein fixed or has been suspended
before the hour fixed by law for the closing of the voting therein and such failure or suspension
of election would affect the result of the election, the Commission, on the basis of a verified
petition of an interested party, and after due notice and hearing, at which the interested parties
are given equal opportunity to be heard shall call for the holding or continuation of the election
within thirty days after it shall have verified and found that the cause or causes for which the
election has been postponed or suspended have ceased to exist or upon petition of at least
thirty percent of the registered voters in the barangay concerned.
When the conditions in these areas warrant, upon verification by the Commission, or upon
petition of at least thirty percent of the registered voters in the barangay concerned, it shall
order the holding of the barangay election which was postponed or suspended. (Emphasis
supplied)
Unlike Section 6, Section 45 does not state that special elections should be held on a date
reasonably close to the date of the election not held. Instead, Section 45 states that special
elections should be held within thirty days from the cessation of the causes for postponement.
Logically, special elections could be held anytime, provided the date of the special elections is
within thirty days from the time the cause of postponement has ceased.
Thus, in Basher 13 the COMELEC declared the 27 May 1997 barangay elections a failure and set
special elections on 12 June 1997 which also failed. The COMELEC set another special election
on 30 August 1997 which this Court declared irregular and void. On 12 April 2000, this Court
ordered the COMELEC to conduct a special election for punong barangay of Maidan, Tugaya,
Lanao del Sur as soon as possible. This despite the provision in Section 2 14 of Republic Act
No. 6679 (RA 6679) 15 stating that the special barangay election should be held in all cases
not later than ninety (90) days from the date of all the original election. ADEaHT
Had the COMELEC resolved to hold special elections in its Resolution dated 8 October 2003, it
would not be as pressed for time as it is now. The operational, logistical and financial problems
which COMELEC claims it will encounter with the holding of a second special election can be
solved with proper planning, coordination and cooperation among its personnel and other
deputized agencies of the government. A special election will require extraordinary efforts, but it
is not impossible. In applying election laws, it would be better to err in favor of popular
sovereignty than to be right in complex but little understood legalisms. 16 In any event, this
Court had already held that special elections under Section 6 would entail minimal costs because
it covers only the precincts in the affected barangays. 17
In this case, the cause of postponement after the second failure of elections was COMELECs
refusal to hold a special election because of (1) its erroneous interpretation of the law, and (2)
its perceived logistical, operational and financial problems. We rule that COMELECs reasons for
refusing to hold another special election are void.
Second and Third Issues: Whether the DILG may Appoint
the Barangay and SK Officials
Petitioners contend that the COMELEC gravely abused its discretion in directing the DILG to
proceed with the appointment of Barangay Captains and Barangay Kagawads as well as SK
chairmen and SK Kagawads in the four barangays. Petitioners argue that as the incumbent
elective punong barangays in the four barangays, 18 they should remain in office in a hold-over
capacity until their successors have been elected and qualified. Section 5 of Republic Act No.
9164 (RA 9164) 19 provides:
Sec. 5. Hold Over. All incumbent barangay officials and sangguniang kabataan officials
shall remain in office unless sooner removed or suspended for cause until their successors shall
have been elected and qualified. The provisions of the Omnibus Election Code relative to failure
of elections and special elections are hereby reiterated in this Act.

RA 9164 is now the law that fixes the date of barangay and SK elections, prescribes the term of
office of barangay and SK officials, and provides for the qualifications of candidates and voters
for the SK elections.
As the law now stands, the language of Section 5 of RA 9164 is clear. It is the duty of this Court
to apply the plain meaning of the language of Section 5. Since there was a failure of elections in
the 15 July 2002 regular elections and in the 13 August 2002 special elections, petitioners can
legally remain in office as barangay chairmen of their respective barangays in a hold-over
capacity. They shall continue to discharge their powers and duties as punong barangay, and
enjoy the rights and privileges pertaining to the office. True, Section 43(c) of the Local
Government Code limits the term of elective barangay officials to three years. However, Section
5 of RA 9164 explicitly provides that incumbent barangay officials may continue in office in a
hold over capacity until their successors are elected and qualified. TcSAaH
Section 5 of RA 9164 reiterates Section 4 of RA 6679 which provides that [A]ll incumbent
barangay officials . . . shall remain in office unless sooner removed or suspended for cause . . .
until their successors shall have been elected and qualified. Section 8 of the same RA 6679 also
states that incumbent elective barangay officials running for the same office shall continue to
hold office until their successors shall have been elected and qualified.
The application of the hold-over principle preserves continuity in the transaction of official
business and prevents a hiatus in government pending the assumption of a successor into
office. 20 As held in Topacio Nueno v. Angeles, 21 cases of extreme necessity justify the
application of the hold-over principle.
WHEREFORE, we GRANT the instant petition. The Resolution of the Commission on Elections
dated 8 October 2003 is declared VOID except insofar as it directs its Law Department to
conduct a preliminary investigation of Esmael Maulay for possible commission of election
offenses. Petitioners have the right to remain in office as barangay chairmen in a hold-over
capacity until their successors shall have been elected and qualified. The Commission on
Elections is ordered to conduct special Barangay elections in Barangays Occidental Linuk,
Pindolonan Moriatao Sarip, Talub, New Lumbacaingud, all in Tamparan, Lanao del Sur within
thirty (30) days from finality of this decision.
SO ORDERED.
G.R. No. 148334. January 21, 2004.]
ARTURO M. TOLENTINO and ARTURO C. MOJICA, petitioners, vs. COMMISSION ON
ELECTIONS, SENATOR RALPH G. RECTO and SENATOR GREGORIO B. HONASAN,
respondents.
SYNOPSIS
In 2001, when Senator Teofisto Guingona, Jr. was made Vice-President of the Philippines, the
Senate passed Resolution No. 84 calling for the COMELEC to fill the vacancy through a special
election to be held simultaneously with the regular elections on May 14, 2001. Twelve senators
with a 6-year term each were due to be elected therein and the senatorial candidate garnering
the 13th highest number of votes shall serve the unexpired term of Senator Guingona, Jr. Later,
however, when the COMELEC proclaimed 13 candidates as elected senators in Resolution No.
01-005, petitioners here questioned that validity of the special election alleging it was not
sufficiently distinguished from the regular election. ASTcEa
Allegedly, the COMELEC failed to give notice of the time of the special election. Under the
applicable law, RA No. 6645, however, it was already provided that such special election to fill
the vacancy in the Senate shall be held simultaneously with the next succeeding regular
elections. On the allegation that there had been insufficient notice, thus, misleading the voters,
the Court ruled that no evidence actually proved the same. As to the separate documentation
and canvassing of the special election, none was required under RA No. 6645.
SYLLABUS
1.
REMEDIAL LAW; JURISDICTION; SUPREME COURT; WHERE THE ISSUE WAS THE
VALIDITY OF THE SPECIAL ELECTION AND NOT THE RIGHT OF ELECTED OFFICIAL. A quo

warranto proceeding is, among others, one to determine the right of a public officer in the
exercise of his office and to oust him from its enjoyment if his claim is not well-founded. Under
Section 17, Article VI of the Constitution, the Senate Electoral Tribunal is the sole judge of all
contests relating to the qualifications of the members of the Senate. Petitioners anchor their
prayers on COMELEC's alleged failure to comply with certain requirements pertaining to the
conduct of that special election. Clearly then, the petition does not seek to determine Honasan's
right in the exercise of his office as Senator. Petitioners' prayer for the annulment of Honasan's
proclamation and, ultimately, election is merely incidental to petitioners' cause of action.
Consequently, the Court can properly exercise jurisdiction over the instant petition. HaTSDA
2.
ID.; SPECIAL CIVIL ACTION; PROHIBITION; MOOTNESS OF PETITION; EXCEPTION;
WHERE THE QUESTION IS CAPABLE OF REPETITION YET EVADING REVIEW. Admittedly, the
office of the writ of prohibition is to command a tribunal or board to desist from committing an
act threatened to be done without jurisdiction or with grave abuse of discretion amounting to
lack or excess of jurisdiction. Consequently, the writ will not lie to enjoin acts already done.
However, as an exception to the rule on mootness, courts will decide a question otherwise moot
if it is capable of repetition yet evading review. The question of the validity of a special election
to fill a vacancy in the Senate in relation to COMELEC's failure to comply with requirements on
the conduct of such special election is likely to arise in every such election. Such question,
however, may not be decided before the date of the election.
3.
ID.; CIVIL PROCEDURE; PARTIES; LEGAL STANDING AS TAXPAYERS AND VOTERS IN
CASE AT BAR, DISCUSSED. "Legal standing" or locus standi refers to a personal and
substantial interest in a case such that the party has sustained or will sustain direct injury
because of the challenged governmental act. The requirement of standing, which necessarily
"sharpens the presentation of issues," relates to the constitutional mandate that this Court settle
only actual cases or controversies. Thus, generally, a party will be allowed to litigate only when
(1) he can show that he has personally suffered some actual or threatened injury because of the
allegedly illegal conduct of the government; (2) the injury is fairly traceable to the challenged
action; and (3) the injury is likely to be redressed by a favorable action. Applied strictly, the
doctrine of standing to litigate will indeed bar the instant petition. In questioning, in their
capacity as voters, the validity of the special election on 14 May 2001, petitioners assert a harm
classified as a "generalized grievance." This generalized grievance is shared in substantially
equal measure by a large class of voters, if not all the voters, who voted in that election. Neither
have petitioners alleged, in their capacity as taxpayers, that the Court should give due course to
the petition because in the special election held on 14 May 2001 "tax money [was] '. . .
extracted and spent in violation of specific constitutional protections against abuses of legislative
power' or that there [was] misapplication of such funds by COMELEC or that public money [was]
deflected to any improper purpose." On the other hand, we have relaxed the requirement on
standing and exercised our discretion to give due course to voters' suits involving the right of
suffrage. We accord the same treatment to petitioners in the instant case in their capacity as
voters since they raise important issues involving their right of suffrage, considering that the
issue raised in this petition is likely to arise again. TcIHDa
4.
POLITICAL LAW; RA NO. 6645 AS AMENDED BY RA 7166; SPECIAL ELECTIONS TO
FILL VACANCY IN SENATE; REQUIREMENTS. Under Section 9, Article VI of the Constitution, a
special election may be called to fill any vacancy in the Senate and the House of Representatives
"in the manner prescribed by law." To implement this provision of the Constitution, Congress
passed R.A. No. 6646. And Section 4 of Republic Act No. 7166 subsequently amended Section 2
of R.A. No. 6645, thus; . . . in case of such vacancy in the Senate, the special election shall be
held simultaneously with the next succeeding regular election. Thus, in case a vacancy arises in
Congress at least one year before the expiration of the term, COMELEC is required: (1) to call a
special election by fixing the date of the special election, which shall not be earlier than sixty
(60) days not later than ninety (90) after the occurrence of the vacancy but in case of a vacancy
in the Senate, the special election shall be held simultaneously with the next succeeding regular
election; and (2) to give notice to the voters of, among other things, the office or offices to be
voted for.

5.
ID.; ID.; ID.; ID.; COMELEC TO GIVE NOTICE ON THE SPECIAL ELECTION; FAILURE
THEREOF DID NOT NEGATE THE CALLING OF SUCH SPECIAL ELECTION AS THE LAW ALREADY
PROVIDED FOR THE SAME. The calling of an election, that is, the giving notice of the time
and place of its occurrence, whether made by the legislature directly or by the body with the
duty to give such call, is indispensable to the election's validity. In a general election, where the
law fixes the date of the election, the election is valid without any call by the body charged to
administer the election. In a special election to fill a vacancy, the rule is that a statute that
expressly provides that an election to fill a vacancy, shall be held at the next general elections
fixes the date at which the special election is to be held and operates as the call for that
election. Consequently, an election held at the time thus prescribed is not invalidated by the fact
that the body charged by law with the duty of calling the election failed to do so. This is
because the right and duty to hold the election emanate from the statute and not from any call
for the election by some authority and the law thus charges voters with knowledge of the time
and place of the election. Conversely, where the law does not fix the time and place for holding
a special election but empowers some authority to fix the time and place after the happening of
a condition precedent, the statutory provision on the giving of notice is considered mandatory,
and failure to do so will render the election a nullity. In the instant case, Section 2 of R.A. No.
6645 itself provides that in case of vacancy in the Senate, the special election to fill such
vacancy shall be held simultaneously with the next succeeding regular election. Accordingly, the
special election to fill the vacancy in the Senate arising from Senator Guingona's appointment as
Vice-President in February 2001 could not be held at any other time but must be held
simultaneously with the next succeeding regular elections on 14 May 2001. The law charges the
voters with knowledge of this statutory notice and COMELEC's failure to give the additional
notice did not negate the calling of such special election, much less invalidate it. DAEaTS
6.
ID.; ID.; ID.; ID.; NOTICE OF THE OFFICE TO BE FILLED AND THE MANNER OF
DETERMINING THE WINNER IN SPECIAL ELECTION; THAT FAILURE THEREOF IN CASE AT BAR
MISLED SUFFICIENT NUMBER OF VOTERS, NOT ESTABLISHED. The test in determining the
validity of a special election in relation to the failure to give notice of the special election is
whether the want of notice has resulted in misleading a sufficient number of voters as would
change the result of the special election. If the lack of official notice misled a substantial number
of voters who wrongly believed that there was no special election to fill a vacancy, a choice by a
small percentage of voters would be void. The required notice to the voters in the 14 May 2001
special senatorial election covers two matters. First, that COMELEC will hold a special election to
fill a vacant single three-year term Senate seat simultaneously with the regular elections
scheduled on the same date. Second, that COMELEC will proclaim as winner the senatorial
candidate receiving the 13th highest number of votes in the special election. Petitioners have
neither claimed nor proved that COMELEC's failure to give this required notice misled a sufficient
number of voters as would change the result of the special senatorial election or led them to
believe that there was no such special election. Instead, what petitioners did is conclude that
since COMELEC failed to give such notice, no special election took place. This bare assertion
carries no value. Section 2 of R.A. No. 6645, as amended, charged those who voted in the
elections of 14 May 2001 with the knowledge that the vacancy in the Senate arising from
Senator Guingona's appointment as Vice-President in February 2001 was to be filled in the next
succeeding regular election of 14 May 2001. Similarly, the absence of formal notice from
COMELEC does not preclude the possibility that the voters had actual notice of the special
election, the office to be voted in that election, and the manner by which COMELEC would
determine the winner. Such actual notice could come from many sources, such as media reports
of the enactment of R.A. No. 6645 and election propaganda during the campaign. More than 10
million voters cast their votes in favor of Honasan, the party who stands most prejudiced by the
instant petition. We simply cannot disenfranchise those who voted for Honasan, in the absence
of proof that COMELEC's omission prejudiced voters in the exercise of their right of suffrage so
as to negate the holding of the special election. Indeed, this Court is loathe to annul elections
and will only do so when it is "impossible to distinguish what votes are lawful and what are
unlawful, or to arrive at any certain result whatever, or that the great body of the voters have
been prevented by violence, intimidation, and threats from exercising their franchise. Otherwise,

the consistent rule has been to respect the electorate's will and let the results of the election
stand, despite irregularities that may have attended the conduct of the elections.
7.
ID.; ID.; ID.; SEPARATE DOCUMENTATION AND CANVASSING, NOT REQUIRED.
Neither is there basis in petitioners' claim that the manner by which COMELEC conducted the
special senatorial election on 14 May 2001 is a nullity because COMELEC failed to document
separately the candidates and to canvass separately the votes cast for the special election. No
such requirements exist in our election laws. What is mandatory under Section 2 of R.A. No.
6645 is that COMELEC "fix the date of the election", if necessary, and "state, among others, the
office or offices to be voted for". Similarly, petitioners' reliance on Section 73 of B.P. 881 on the
filing of certificates of candidacy, and on Section 4(4) of R.A. No. 6646 on the printing of
election returns and tally sheets, to support their claim is misplaced. These provisions govern
elections in general and in no way require separate documentation of candidates or separate
canvass of votes in a jointly held regular and special elections. aDHScI
PUNO, J., Dissenting Opinion:
1.
POLITICAL LAW; RA NO. 6645 AS AMENDED BY RA NO. 7166; SPECIAL ELECTIONS
TO FILL VACANCY IN THE SENATE; REQUIREMENTS; COMELEC TO GIVE NOTICE OF THE
SPECIAL ELECTION; FAILURE THEREOF NOT JUSTIFIED BY THE PROVISION OF LAW AS TO
THE SAME. The ponencia justifies its position on the lack of call or notice of the time and
place of the special election by holding that the law charges voters with knowledge of R.A. No.
7166 which provides that in case of a vacancy in the Senate, the special election to fill such
vacancy shall be held simultaneously with the next succeeding election, that is, the May 14,
2001 election. The ponencia's argument is that the provisions of R.A. No. 7166 stating that the
special election would be held simultaneously with the regular election operated as a call for the
election so that the absence of a call by the COMELEC did not taint the validity of the special
election. With due respect, this is not the intention of R.A. No. 7166 for despite its paragraph 1,
Section 7 that "in case of such vacancy in the Senate, the special election shall be held
simultaneously with the succeeding regular election", the law nevertheless required in paragraph
3 of the same section that "(t)he Commission shall send sufficient copies of its resolution for the
holding of the election to its provincial election supervisors and election registrars for
dissemination, who shall post copies thereof in at least three conspicuous places preferably
where public meetings are held in each city or municipality affected."
2.
ID.; ID.; ID.; ID.; ID.; DUQUETTE CASE, NOT APPLICABLE. The Duquette case
cited by the ponencia does not lend support to its thesis that statutory notice suffices. In
Duquette, it was held that in the absence of an official notice of the special election mandated
by law to be held simultaneously with the general election, there should be actual notice of the
electorate. Actual notice may be proved by the voting of a significant percentage of the
electorate for the position in the special election or by other acts which manifest awareness of
the holding of a special election such as nomination of candidates. In the case at bar, however,
the number of votes cast for the special election cannot be determined as the ballot did not
indicate separately the votes for the special election. In fact, whether or not the electorate had
notice of the special election, a candidate would just the same fall as the 13th placer because
more than twelve candidates ran for the regular senatorial elections. Nobody was nominated to
vie specifically for the senatorial seat in the special election nor was there a certificate of
candidary filed for that position. In the absence of official notice of the time, place and manner
of conduct of the special election, actual notice is a matter of proof. Respondents and the
ponencia cannot point to any proof of actual notice. aCTcDS
3.
ID.; ID.; ID.; ID.; ID.; NOTICE ESSENTIAL AS A MEANINGFUL EXERCISE OF THE
RIGHT OF SUFFRAGE IN A GENUINELY FREE, ORDERLY AND HONEST ELECTION IS
PREDICATED UPON AN INFORMED ELECTORATE. I respectfully submit that the electorate
should have been informed of the time, place and manner of conduct of the May 14, 2001
special election for the single senatorial seat for the unexpired term of former Senator Teofisto
Guingona, Jr. Tolentino, UNIDO, Blo Umpar Adiong and Hassan all deepened the doctrine that a
meaningful exercise of the right of suffrage in a genuinely free, orderly and honest election is
predicated upon an electorate informed on the issues of the day, the programs of government
laid out before them, the candidates running in the election and the time, place and manner of

conduct of the election. It is for this reason that the Omnibus Election Code is studded with
processes, procedures and requirements that ensure voter information.
4.
ID.; ID.; ID.; PROVISION THAT SPECIAL ELECTION BE HELD SIMULTANEOUSLY
WITH THE GENERAL ELECTION; INSUFFICIENCY, DISCUSSED. Bince and Benito further
teach us that free and intelligent vote is not enough; correct ascertainment of the will of the
people is equally necessary. The procedure adopted in the case at bar for holding the May 14,
2001 special senatorial election utterly failed to ascertain the people's choice in the special
election. Section 2 of R.A. No. 7166 provides that the "special election shall be held
simultaneously with such general election." It does not contemplate, however, the integration of
the special senatorial election whereby candidates who filed certificates of candidacy for the
regular elections also automatically stand as candidates in the special election. The Omnibus
Election Code is crystal clear that a candidate can run for only one position in an election.
Consequently, there were no candidates in the special election to vote for. Separate sets of
candidates for the special election and the regular elections are decisive of the election results.
Each independent-minded voter could have a variety of reasons for choosing a candidate to
serve for only the unexpired term of three years instead of the regular term of six years or not
choosing a candidate at all. A voter might choose a neophyte to serve the three-year term as a
shorter trial period. Another might be minded to choose an old-timer to compel him to hasten
the completion of his projects in a shorter period of three years. Still another might want to
afford a second termer who has not performed too satisfactorily a second chance to prove
himself but not for too long a period of six years. In not allowing the voter to separately indicate
the candidate he voted for the three-year senatorial term, the voter was deprived of his right to
make an informed judgment based on his own reasons and valuations. Consequently, his true
will in the special election was not ascertained. As a particle of sovereignty, it is the thinking
voter who must determine who should win in the special election and not the unthinking
machine that will mechanically ascertain the 13th placer in the general election by mathematical
computations. ADcHES
5.
ID.; ID.; ID.; SENATE'S OBSERVATION AS TO WHAT WOULD BE LESS COSTLY FOR
THE GOVERNMENT IS NOT A JUSTIFICATION TO BARGAIN THE ELECTORATE'S FUNDAMENTAL
RIGHT TO VOTE INTELLIGENTLY. The Senate's observation that the procedure for the special
election that it adopted would be less costly for the government as the ballots need not be
printed again to separately indicate the candidate voted for the special election does not also
lend justification for the manner of conduct of the May 14, 2001 special election. We cannot
bargain the electorate's fundamental right to vote intelligently with the coin of convenience.
Even with the Senate stance, the regular ballot had to be modified to include a thirteenth space
in the list of senatorial seats to be voted for.
6.
ID.; ID.; ID.; IT IS THE POWER AND DUTY OF THE COMELEC, NOT THE SENATE, TO
CALL AND HOLD SPECIAL ELECTION TO FILL VACANCY IN THE SENATE. Reliance on R.A.
No. 6645 is erroneous. This law provides that when a vacancy arises in the Senate, the Senate,
by resolution, certifies to the existence of the vacancy and calls for a special election. Upon
receipt of the resolution, the COMELEC holds the special election. R.A. No. 6645 was amended
in 1991 by R.A. No. 7166. The latter law provides that when a permanent vacancy occurs in the
Senate at least one year before the expiration of the term, "the Commission (on Elections) shall
call and hold a special election to fill the vacancy . . ." Since under R.A. No. 7166, it is the power
and duty of the COMELEC, and not the Senate, to call and hold the election, the Senate cannot
by mere resolution, impose upon the COMELEC the procedure for the special election that it
intended such that "Comelec will not have the flexibility" to deviate therefrom. As a
constitutional body created to ensure "free, orderly, honest, peaceful, and credible elections," it
was the duty of the COMELEC to give to the electorate notice of the time, place and manner of
conduct of the special elections and to adopt only those mechanisms and procedures that would
ascertain the true will of the people. SHAcID
DECISION
The Case

This is a petition for prohibition to set aside Resolution No. NBC 01-005 dated 5 June 2001
("Resolution No. 01-005") and Resolution No. NBC 01-006 dated 20 July 2001 ("Resolution No.
01-006") of respondent Commission on Elections ("COMELEC"). Resolution No. 01-005
proclaimed the 13 candidates elected as Senators in the 14 May 2001 elections while Resolution
No. 01-006 declared "official and final" the ranking of the 13 Senators proclaimed in Resolution
No. 01-005. TIDaCE
The Facts
Shortly after her succession to the Presidency in January 2001, President Gloria MacapagalArroyo nominated then Senator Teofisto T. Guingona, Jr. ("Senator Guingona") as VicePresident. Congress confirmed the nomination of Senator Guingona who took his oath as VicePresident on 9 February 2001.
Following Senator Guingona's confirmation, the Senate on 8 February 2001 passed Resolution
No. 84 ("Resolution No. 84") certifying to the existence of a vacancy in the Senate. Resolution
No. 84 called on COMELEC to fill the vacancy through a special election to be held
simultaneously with the regular elections on 14 May 2001. Twelve Senators, with a 6-year term
each, were due to be elected in that election. 1 Resolution No. 84 further provided that the
"Senatorial candidate garnering the 13th highest number of votes shall serve only for the
unexpired term of former Senator Teofisto T. Guingona, Jr.," which ends on 30 June 2004. 2
On 5 June 2001, after COMELEC had canvassed the election results from all the provinces but
one (Lanao del Norte), COMELEC issued Resolution No. 01-005 provisionally proclaiming 13
candidates as the elected Senators. Resolution No. 01-005 also provided that "the first twelve
(12) Senators shall serve for a term of six (6) years and the thirteenth (13th) Senator shall serve
the unexpired term of three (3) years of Senator Teofisto T. Guingona, Jr. who was appointed
Vice-President." 3 Respondents Ralph Recto ("Recto") and Gregorio Honasan ("Honasan")
ranked 12th and 13th, respectively, in Resolution No. 01-005.
On 20 June 2001, petitioners Arturo Tolentino and Arturo Mojica ("petitioners"), as voters and
taxpayers, filed the instant petition for prohibition, impleading only COMELEC as respondent.
Petitioners sought to enjoin COMELEC from proclaiming with finality the candidate for Senator
receiving the 13th highest number of votes as the winner in the special election for a single
three-year term seat. Accordingly, petitioners prayed for the nullification of Resolution No. 01005 in so far as it makes a proclamation to such effect.
Petitioners contend that COMELEC issued Resolution No. 01-005 without jurisdiction because:
(1) it failed to notify the electorate of the position to be filled in the special election as required
under Section 2 of Republic Act No. 6645 ("R.A. No. 6645"); 4 (2) it failed to require senatorial
candidates to indicate in their certificates of candidacy whether they seek election under the
special or regular elections as allegedly required under Section 73 of Batas Pambansa Blg. 881;
5 and, consequently, (3) it failed to specify in the Voters Information Sheet the candidates
seeking election under the special or regular senatorial elections as purportedly required under
Section 4, paragraph 4 of Republic Act No. 6646 ("R.A. No. 6646"). 6 Petitioners add that
because of these omissions, COMELEC canvassed all the votes cast for the senatorial candidates
in the 14 May 2001 elections without distinction such that "there were no two separate Senate
elections held simultaneously but just a single election for thirteen seats, irrespective of term." 7
Stated otherwise, petitioners claim that if held simultaneously, a special and a regular election
must be distinguished in the documentation as well as in the canvassing of their results. To
support their claim, petitioners cite the special elections simultaneously held with the regular
elections of 13 November 1951 and 8 November 1955 to fill the seats vacated by Senators
Fernando Lopez and Carlos P. Garcia, respectively, who became Vice-Presidents during their
tenures in the Senate. 8 Petitioners point out that in those elections, COMELEC separately
canvassed the votes cast for the senatorial candidates running under the regular elections from
the votes cast for the candidates running under the special elections. COMELEC also separately
proclaimed the winners in each of those elections. 9
Petitioners sought the issuance of a temporary restraining order during the pendency of their
petition.
Without issuing any restraining order, we required COMELEC to Comment on the petition.

On 20 July 2001, after COMELEC had canvassed the results from all the provinces, it issued
Resolution No. 01-006 declaring "official and final" the ranking of the 13 Senators proclaimed in
Resolution No. 01-005. The 13 Senators took their oaths of office on 23 July 2001.
In view of the issuance of Resolution No. 01-006, the Court required petitioners to file an
amended petition impleading Recto and Honasan as additional respondents. Petitioners
accordingly filed an amended petition in which they reiterated the contentions raised in their
original petition and, in addition, sought the nullification of Resolution No. 01-006.
In their Comments, COMELEC, Honasan, and Recto all claim that a special election to fill the
seat vacated by Senator Guingona was validly held on 14 May 2001. COMELEC and Honasan
further raise preliminary issues on the mootness of the petition and on petitioners' standing to
litigate. Honasan also claims that the petition, which seeks the nullity of his proclamation as
Senator, is actually a quo warranto petition and the Court should dismiss the same for lack of
jurisdiction. For his part, Recto, as the 12th ranking Senator, contends he is not a proper party
to this case because the petition only involves the validity of the proclamation of the 13th placer
in the 14 May 2001 senatorial elections.
The Issues
The following are the issues presented for resolution:
(1)
Procedurally
(a)
whether the petition is in fact a petition for quo warranto over which the Senate
Electoral Tribunal is the sole judge;
(b)
whether the petition is moot; and
(c)
whether petitioners have standing to litigate.
(2)
On the merits, whether a special election to fill a vacant three-year term Senate seat
was validly held on 14 May 2001.
The Ruling of the Court
The petition has no merit.
On the Preliminary Matters
The Nature of the Petition and the Court's Jurisdiction
A quo warranto proceeding is, among others, one to determine the right of a public officer in
the exercise of his office and to oust him from its enjoyment if his claim is not well-founded. 10
Under Section 17, Article VI of the Constitution, the Senate Electoral Tribunal is the sole judge
of all contests relating to the qualifications of the members of the Senate.
A perusal of the allegations contained in the instant petition shows, however, that what
petitioners are questioning is the validity of the special election on 14 May 2001 in which
Honasan was elected. Petitioners' various prayers are, namely: (1) a "declaration" that no
special election was held simultaneously with the general elections on 14 May 2001; (2) to
enjoin COMELEC from declaring anyone as having won in the special election; and (3) to annul
Resolution Nos. 01-005 and 01-006 in so far as these Resolutions proclaim Honasan as the
winner in the special election. Petitioners anchor their prayers on COMELEC's alleged failure to
comply with certain requirements pertaining to the conduct of that special election. Clearly then,
the petition does not seek to determine Honasan's right in the exercise of his office as Senator.
Petitioners' prayer for the annulment of Honasan's proclamation and, ultimately, election is
merely incidental to petitioners' cause of action. Consequently, the Court can properly exercise
jurisdiction over the instant petition.
On the Mootness of the Petition
COMELEC contends that its proclamation on 5 June 2001 of the 13 Senators and its subsequent
confirmation on 20 July 2001 of the ranking of the 13 Senators render the instant petition to set
aside Resolutions Nos. 01-005 and 01-006 moot and academic.
Admittedly, the office of the writ of prohibition is to command a tribunal or board to desist from
committing an act threatened to be done without jurisdiction or with grave abuse of discretion
amounting to lack or excess of jurisdiction. 11 Consequently, the writ will not lie to enjoin acts
already done. 12 However, as an exception to the rule on mootness, courts will decide a
question otherwise moot if it is capable of repetition yet evading review. 13 Thus, in Alunan III
v. Mirasol, 14 we took cognizance of a petition to set aside an order canceling the general
elections for the Sangguniang Kabataan ("SK") on 4 December 1992 despite that at the time the

petition was filed, the SK election had already taken place. We noted in Alunan that since the
question of the validity of the order sought to be annulled "is likely to arise in every SK elections
and yet the question may not be decided before the date of such elections," the mootness of
the petition is no bar to its resolution. This observation squarely applies to the instant case. The
question of the validity of a special election to fill a vacancy in the Senate in relation to
COMELEC's failure to comply with requirements on the conduct of such special election is likely
to arise in every such election. Such question, however, may not be decided before the date of
the election.
On Petitioners' Standing
Honasan questions petitioners' standing to bring the instant petition as taxpayers and voters
because petitioners do not claim that COMELEC illegally disbursed public funds. Neither do
petitioners claim that they sustained personal injury because of the issuance of Resolution Nos.
01-005 and 01-006.
"Legal standing" or locus standi refers to a personal and substantial interest in a case such that
the party has sustained or will sustain direct injury because of the challenged governmental act.
15 The requirement of standing, which necessarily "sharpens the presentation of issues," 16
relates to the constitutional mandate that this Court settle only actual cases or controversies. 17
Thus, generally, a party will be allowed to litigate only when (1) he can show that he has
personally suffered some actual or threatened injury because of the allegedly illegal conduct of
the government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is
likely to be redressed by a favorable action. 18
Applied strictly, the doctrine of standing to litigate will indeed bar the instant petition. In
questioning, in their capacity as voters, the validity of the special election on 14 May 2001,
petitioners assert a harm classified as a "generalized grievance." This generalized grievance is
shared in substantially equal measure by a large class of voters, if not all the voters, who voted
in that election. 19 Neither have petitioners alleged, in their capacity as taxpayers, that the
Court should give due course to the petition because in the special election held on 14 May 2001
"tax money [was] '. . . extracted and spent in violation of specific constitutional protections
against abuses of legislative power' or that there [was] misapplication of such funds by
COMELEC or that public money [was] deflected to any improper purpose." 20
On the other hand, we have relaxed the requirement on standing and exercised our discretion
to give due course to voters' suits involving the right of suffrage. 21 Also, in the recent case of
Integrated Bar of the Philippines v. Zamora, 22 we gave the same liberal treatment to a petition
filed by the Integrated Bar of the Philippines ("IBP"). The IBP questioned the validity of a
Presidential directive deploying elements of the Philippine National Police and the Philippine
Marines in Metro Manila to conduct patrols even though the IBP presented "too general an
interest." We held:
[T]he IBP primarily anchors its standing on its alleged responsibility to uphold the rule of law
and the Constitution. Apart from this declaration, however, the IBP asserts no other basis in
support of its locus standi. The mere invocation by the IBP of its duty to preserve the rule of law
and nothing more, while undoubtedly true, is not sufficient to clothe it with standing in this
case. This is too general an interest which is shared by other groups and the whole citizenry . . .
.
Having stated the foregoing, this Court has the discretion to take cognizance of a suit which
does not satisfy the requirement of legal standing when paramount interest is involved. In not a
few cases, the court has adopted a liberal attitude on the locus standi of a petitioner where the
petitioner is able to craft an issue of transcendental significance to the people. Thus, when the
issues raised are of paramount importance to the public, the Court may brush aside
technicalities of procedure. In this case, a reading of the petition shows that the IBP has
advanced constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. Moreover, because peace and order are under
constant threat and lawless violence occurs in increasing tempo, undoubtedly aggravated by the
Mindanao insurgency problem, the legal controversy raised in the petition almost certainly will
not go away. It will stare us in the face again. It, therefore, behooves the Court to relax the
rules on standing and to resolve the issue now, rather than later. 23 (Emphasis supplied)

We accord the same treatment to petitioners in the instant case in their capacity as voters since
they raise important issues involving their right of suffrage, considering that the issue raised in
this petition is likely to arise again.
Whether a Special Election for a Single, Three-Year Term
Senatorial Seat was Validly Held on 14 May 2001
Under Section 9, Article VI of the Constitution, a special election may be called to fill any
vacancy in the Senate and the House of Representatives "in the manner prescribed by law,"
thus:
In case of vacancy in the Senate or in the House of Representatives, a special election may be
called to fill such vacancy in the manner prescribed by law, but the Senator or Member of the
House of Representatives thus elected shall serve only for the unexpired term. (Emphasis
supplied)
To implement this provision of the Constitution, Congress passed R.A. No. 6645, which provides
in pertinent parts:
SECTION 1.
In case a vacancy arises in the Senate at least eighteen (18) months or in
the House of Representatives at least one (1) year before the next regular election for Members
of Congress, the Commission on Elections, upon receipt of a resolution of the Senate or the
House of Representatives, as the case may be, certifying to the existence of such vacancy and
calling for a special election, shall hold a special election to fill such vacancy. If Congress is in
recess, an official communication on the existence of the vacancy and call for a special election
by the President of the Senate or by the Speaker of the House of Representatives, as the case
may be, shall be sufficient for such purpose. The Senator or Member of the House of
Representatives thus elected shall serve only for the unexpired term.
SECTION 2.
The Commission on Elections shall fix the date of the special election, which
shall not be earlier than forty-five (45) days nor later than ninety (90) days from the date of
such resolution or communication, stating among other things the office or offices to be voted
for: Provided, however, That if within the said period a general election is scheduled to be held,
the special election shall be held simultaneously with such general election. (Emphasis supplied)
Section 4 of Republic Act No. 7166 subsequently amended Section 2 of R.A. No. 6645, as
follows:
Postponement, Failure of Election and Special Elections. . . . In case a permanent vacancy
shall occur in the Senate or House of Representatives at least one (1) year before the expiration
of the term, the Commission shall call and hold a special election to fill the vacancy not earlier
than sixty (60) days nor longer than ninety (90) days after the occurrence of the vacancy.
However, in case of such vacancy in the Senate, the special election shall be held
simultaneously with the next succeeding regular election. (Emphasis supplied)
Thus, in case a vacancy arises in Congress at least one year before the expiration of the term,
Section 2 of R.A. No. 6645, as amended, requires COMELEC: (1) to call a special election by
fixing the date of the special election, which shall not be earlier than sixty (60) days nor later
than ninety (90) after the occurrence of the vacancy but in case of a vacancy in the Senate, the
special election shall be held simultaneously with the next succeeding regular election; and (2)
to give notice to the voters of, among other things, the office or offices; to be voted for.
Did COMELEC, in conducting the special senatorial election simultaneously with the 14 May 2001
regular elections, comply with the requirements in Section 2 of R.A. No. 6645?
A survey of COMELEC's resolutions relating to the conduct of the 14 May 2001 elections reveals
that they contain nothing which would amount to a compliance, either strict or substantial, with
the requirements in Section 2 of R.A. No. 6645, as amended. Thus, nowhere in its resolutions 24
or even in its press releases 25 did COMELEC state that it would hold a special election for a
single three-year term Senate seat simultaneously with the regular elections on 14 May 2001.
Nor did COMELEC give formal notice that it would proclaim as winner the senatorial candidate
receiving the 13th highest number of votes in the special election.
The controversy thus turns on whether COMELEC's failure, assuming it did fail, to comply with
the requirements in Section 2 of R.A. No. 6645, as amended, invalidated the conduct of the
special senatorial election on 14 May 2001 and accordingly rendered Honasan's proclamation as
the winner in that special election void. More precisely, the question is whether the special

election is invalid for lack of a "call" for such election and for lack of notice as to the office to be
filled and the manner by which the winner in the special election is to be determined. For
reasons stated below, the Court answers in the negative.
COMELEC's Failure to Give Notice
of the Time of the Special Election
Did Not Negate the Calling of such Election
The calling of an election, that is, the giving notice of the time and place of its occurrence,
whether made by the legislature directly or by the body with the duty to give such call, is
indispensable to the election's validity. 26 In a general election, where the law fixes the date of
the election, the election is valid without any call by the body charged to administer the election.
27
In a special election to fill a vacancy, the rule is that a statute that expressly provides that an
election to fill a vacancy shall be held at the next general elections fixes the date at which the
special election is to be held and operates as the call for that election. Consequently, an election
held at the time thus prescribed is not invalidated by the fact that the body charged by law with
the duty of calling the election failed to do so. 28 This is because the right and duty to hold the
election emanate from the statute and not from any call for the election by some authority 29
and the law thus charges voters with knowledge of the time and place of the election. 30
Conversely, where the law does not fix the time and place for holding a special election but
empowers some authority to fix the time and place after the happening of a condition
precedent, the statutory provision on the giving of notice is considered mandatory, and failure
to do so will render the election a nullity. 31
In the instant case, Section 2 of R.A. No. 6645 itself provides that in case of vacancy in the
Senate, the special election to fill such vacancy shall be held simultaneously with the next
succeeding regular election. Accordingly, the special election to fill the vacancy in the Senate
arising from Senator Guingona's appointment as Vice-President in February 2001 could not be
held at any other time but must be held simultaneously with the next succeeding regular
elections on 14 May 2001. The law charges the voters with knowledge of this statutory notice
and COMELEC's failure to give the additional notice did not negate the calling of such special
election, much less invalidate it.
Our conclusion might be different had the present case involved a special election to fill a
vacancy in the House of Representatives. In such a case, the holding of the special election is
subject to a condition precedent, that is, the vacancy should take place at least one year before
the expiration of the term. The time of the election is left to the discretion of COMELEC subject
only to the limitation that it holds the special election within the range of time provided in
Section 2 of R.A. No. 6645, as amended. This makes mandatory the requirement in Section 2 of
R.A. No. 6645, as amended, for COMELEC to "call . . . a special election . . . not earlier than 60
days nor longer than 90 days after the occurrence of the vacancy" and give notice of the office
to be filled. The COMELEC's failure to so call and give notice will nullify any attempt to hold a
special election to fill the vacancy. Indeed, it will be well-nigh impossible for the voters in the
congressional district involved to know the time and place of the special election and the office
to be filled unless the COMELEC so notifies them.
No Proof that COMELEC's Failure
to Give Notice of the Office to be Filled
and the Manner of Determining the
Winner in the Special Election Misled Voters
The test in determining the validity of a special election in relation to the failure to give notice of
the special election is whether the want of notice has resulted in misleading a sufficient number
of voters as would change the result of the special election. If the lack of official notice misled a
substantial number of voters who wrongly believed that there was no special election to fill a
vacancy, a choice by a small percentage of voters would be void. 32
The required notice to the voters in the 14 May 2001 special senatorial election covers two
matters. First, that COMELEC will hold a special election to fill a vacant single three-year term
Senate seat simultaneously with the regular elections scheduled on the same date. Second, that
COMELEC will proclaim as winner the senatorial candidate receiving the 13th highest number of

votes in the special election. Petitioners have neither claimed nor proved that COMELEC's failure
to give this required notice misled a sufficient number of voters as would change the result of
the special senatorial election or led them to believe that there was no such special election.
Instead, what petitioners did is conclude that since COMELEC failed to give such notice, no
special election took place. This bare assertion carries no value. Section 2 of R.A. No. 6645, as
amended, charged those who voted in the elections of 14 May 2001 with the knowledge that
the vacancy in the Senate arising from Senator Guingona's appointment as Vice-President in
February 2001 was to be filled in the next succeeding regular election of 14 May 2001. Similarly,
the absence of formal notice from COMELEC does not preclude the possibility that the voters
had actual notice of the special election, the office to be voted in that election, and the manner
by which COMELEC would determine the winner. Such actual notice could come from many
sources, such as media reports of the enactment of R.A. No. 6645 and election propaganda
during the campaign. 33
More than 10 million voters cast their votes in favor of Honasan, the party who stands most
prejudiced by the instant petition. We simply cannot disenfranchise those who voted for
Honasan, in the absence of proof that COMELEC's omission prejudiced voters in the exercise of
their right of suffrage so as to negate the holding of the special election. Indeed, this Court is
loathe to annul elections and will only do so when it is "impossible to distinguish what votes are
lawful and what are unlawful, or to arrive at any certain result whatever, or that the great body
of the voters have been prevented by violence, intimidation, and threats from exercising their
franchise." 34
Otherwise, the consistent rule has been to respect the electorate's will and let the results of the
election stand, despite irregularities that may have attended the conduct of the elections. 35
This is but to acknowledge the purpose and role of elections in a democratic society such as
ours, which is:
to give the voters a direct participation in the affairs of their government, either in determining
who shall be their public officials or in deciding some question of public interest; and for that
purpose all of the legal voters should be permitted, unhampered and unmolested, to cast their
ballot. When that is done and no frauds have been committed, the ballots should be counted
and the election should not be declared null. Innocent voters should not be deprived of their
participation in the affairs of their government for mere irregularities on the part of the election
officers, for which they are in no way responsible. A different rule would make the manner and
method of performing a public duty of greater importance than the duty itself. 36 (Emphasis in
the original)
Separate Documentation and Canvassing
not Required under Section 2 of R.A. No. 6645
Neither is there basis in petitioners' claim that the manner by which COMELEC conducted the
special senatorial election on 14 May 2001 is a nullity because COMELEC failed to document
separately the candidates and to canvass separately the votes cast for the special election. No
such requirements exist in our election laws. What is mandatory under Section 2 of R.A. No.
6645 is that COMELEC "fix the date of the election," if necessary, and "state, among others, the
office or offices to be voted for." Similarly, petitioners' reliance on Section 73 of B.P. Blg. 881 on
the filing of certificates of candidacy, and on Section 4(4) of R.A. No. 6646 on the printing of
election returns and tally sheets, to support their claim is misplaced. These provisions govern
elections in general and in no way require separate documentation of candidates or separate
canvass of votes in a jointly held regular and special elections.
Significantly, the method adopted by COMELEC in conducting the special election on 14 May
2001 merely implemented the procedure specified by the Senate in Resolution No. 84. Initially,
the original draft of Resolution No. 84 as introduced by Senator Francisco Tatad ("Senator
Tatad") made no mention of the manner by which the seat vacated by former Senator Guingona
would be filled. However, upon the suggestion of Senator Raul Roco ("Senator Roco"), the
Senate agreed to amend Resolution No. 84 by providing, as it now appears, that "the senatorial
candidate garnering the thirteenth (13th) highest number of votes shall serve only for the
unexpired term of former Senator Teofisto T. Guingona, Jr." Senator Roco introduced the

amendment to spare COMELEC and the candidates needless expenditures and the voters further
inconvenience, thus:
S[ENATOR] T[ATAD]. Mr. President, I move that we now consider Proposed Senate Resolution
No. 934 [later converted to Resolution No. 84].
T[HE] P[RESIDENT]. Is there any objection? [Silence] There being none, the motion is
approved.
Consideration of Proposed Senate Resolution No. 934 is now in order. With the permission of
the Body, the Secretary will read only the title and text of the resolution.
T[HE] S[ECRETARY]. Proposed Senate Resolution No. 934 entitled
RESOLUTION CERTIFYING TO THE EXISTENCE OF A VACANCY IN THE SENATE AND CALLING
ON THE COMMISSION ON ELECTIONS (COMELEC) TO FILL UP SUCH VACANCY THROUGH
ELECTION TO BE HELD SIMULTANEOUSLY WITH THE REGULAR ELECTION ON MAY 14, 2001
AND THE SENATOR THUS ELECTED TO SERVE ONLY FOR THE UNEXPIRED TERM
WHEREAS, the Honorable Teofisto T. Guingona, Jr. was elected Senator of the Philippines in
1998 for a term which will expire on June 30, 2004;
WHEREAS, on February 6, 2001, Her Excellency President Gloria Macapagal Arroyo nominated
Senator Guingona as Vice-President of the Philippines;
WHEREAS, the nomination of Senator Guingona has been confirmed by a majority vote of all the
members of both House of Congress, voting separately;
WHEREAS, Senator Guingona will take his Oath of Office as Vice-President of the Philippines on
February 9, 2001;
WHEREAS, Republic Act No. 7166 provides that the election for twelve (12) Senators, all elective
Members of the House of Representatives, and all elective provincial city and municipal officials
shall be held on the second Monday and every three years thereafter; Now, therefore, be it
RESOLVED by the Senate, as it is hereby resolved, to certify, as it hereby certifies, the existence
of a vacancy in the Senate and calling the Commission on Elections (COMELEC) to fill up such
vacancy through election to be held simultaneously with the regular election on May 14, 2001
and the Senator thus elected to serve only for the unexpired term.
Adopted,
(Sgd.) FRANCISCO S. TATAD
Senator
S[ENATOR] T[ATAD]. Mr. President, I move for the adoption of this resolution.
S[ENATOR] O[SMEA] (J). Mr. President.
T[HE] P[RESIDENT]. Sen. John H. Osmea is recognized.
S[ENATOR] O[SMEA] (J). Thank you, Mr. President. Will the distinguished Majority Leader,
Chairman of the Committee on Rules, author of this resolution, yield for a few questions?
S[ENATOR] T[ATAD]. With trepidation, Mr. President. [Laughter]
S[ENATOR] O[SMEA] (J). What a way of flattery. [Laughter]
Mr. President, I think I recall that sometime in 1951 or 1953, there was a special election for a
vacant seat in the Senate. As a matter of fact, the one who was elected in that special election
was then Congressman, later Senator Feli[s]berto Verano.
In that election, Mr. President, the candidates contested the seat. In other words, the electorate
had to cast a vote for a ninth senator because at that time there were only eight to elect a
member or rather, a candidate to that particular seat.
Then I remember, Mr. President, that when we ran after the EDSA revolution, twice there were
24 candidates and the first 12 were elected to a six-year term and the next 12 were elected to a
three-year term.
My question therefore is, how is this going to be done in this election? Is the candidate with the
13th largest number of votes going to be the one to take a three-year term? Or is there going to
be an election for a position of senator for the unexpired term of Sen. Teofisto Guingona?
S[ENATOR] T[ATAD]. Mr. President, in this resolution, we are leaving the mechanics to the
Commission on Elections. But personally, I would like to suggest that probably, the candidate
obtaining the 13th largest number of votes be declared as elected to fill up the unexpired term
of Senator Guingona.

S[ENATOR] O[SMEA] (J). Is there a law that would allow the Comelec to conduct such an
election? Is it not the case that the vacancy is for a specific office? I am really at a loss. I am
rising here because I think it is something that we should consider. I do not know if we can . . .
No, this is not a Concurrent Resolution. aTcIEH
S[ENATOR] T[ATAD]. May we solicit the legal wisdom of the Senate President.
T[HE] P[RESIDENT]. May I share this information that under Republic Act No. 6645, what is
needed is a resolution of this Chamber calling attention to the need for the holding of a special
election to fill up the vacancy created, in this particular case, by the appointment of our
colleague, Senator Guingona, as Vice President.
It can be managed in the Commission on Elections so that a slot for the particular candidate to
fill up would be that reserved for Mr. Guingona's unexpired term. In other words, it can be
arranged in such a manner.
xxx
xxx
xxx
S[ENATOR] R[OCO]. Mr. President.
T[HE] P[RESIDENT]. Sen. Raul S. Roco is recognized.
S[ENATOR] R[OCO]. May we suggest, subject to a one-minute caucus, wordings to the effect
that in the simultaneous elections, the 13th placer be therefore deemed to be the special
election for this purpose. So we just nominate 13 and it is good for our colleagues. It is better
for the candidates. It is also less expensive because the ballot will be printed and there will be
less disfranchisement.
T[HE] P[RESIDENT]. That is right.
S[ENATOR] R[OCO]. If we can just deem it therefore under this resolution to be such a special
election, maybe, we satisfy the requirement of the law.
T[HE] P[RESIDENT]. Yes. In other words, this shall be a guidance for the Comelec.
S[ENATOR] R[OCO]. Yes.
T[HE] P[RESIDENT]. to implement.
S[ENATOR] R[OCO]. Yes. The Comelec will not have the flexibility.
T[HE] P[RESIDENT]. That is right.
S[ENATOR] R[OCO]. We will already consider the 13th placer of the forthcoming elections that
will be held simultaneously as a special election under this law as we understand it.
T[HE] P[RESIDENT]. Yes. That will be a good compromise, Senator Roco.
S[ENATOR] R[OCO]. Yes. So if the sponsor can introduce that later, maybe it will be better, Mr.
President.
T[HE] P[RESIDENT]. What does the sponsor say?
S[ENATOR] T[ATAD]. Mr. President, that is a most satisfactory proposal because I do not
believe that there will be anyone running specifically
T[HE] P[RESIDENT]. Correct.
S[ENATOR] T[ATAD]. to fill up this position for three years and campaigning nationwide.
T[HE] P[RESIDENT]. Actually, I think what is going to happen is the 13th candidate will be
running with specific groups.
S[ENATOR] T[ATAD]. Yes. Whoever gets No. 13.
T[HE] P[RESIDENT]. I think we can specifically define that as the intent of this resolution.
S[ENATOR] T[ATAD]. Subject to style, we accept that amendment and if there will be no other
amendment, I move for the adoption of this resolution.
xxx
xxx
xxx
ADOPTION OF S. RES. NO. 934
If there are no other proposed amendments, I move that we adopt this resolution.
T[HE] P[RESIDENT]. There is a motion to adopt this resolution. Is there any objection? [Silence]
There being none, the motion is approved. 37
Evidently, COMELEC, in the exercise of its discretion to use means and methods to conduct the
special election within the confines of R.A. No. 6645, merely chose to adopt the Senate's
proposal, as embodied in Resolution No. 84. This Court has consistently acknowledged and
affirmed COMELEC's wide latitude of discretion in adopting means to carry out its mandate of
ensuring free, orderly, and honest elections subject only to the limitation that the means so
adopted are not illegal or do not constitute grave abuse of discretion. 38 COMELEC's decision to

abandon the means it employed in the 13 November 1951 and 8 November 1955 special
elections and adopt the method embodied in Resolution No. 84 is but a legitimate exercise of its
discretion. Conversely, this Court will not interfere should COMELEC, in subsequent special
senatorial elections, choose to revert to the means it followed in the 13 November 1951 and 8
November 1955 elections. That COMELEC adopts means that are novel or even disagreeable is
no reason to adjudge it liable for grave abuse of discretion. As we have earlier noted:
The Commission on Elections is a constitutional body. It is intended to play a distinct and
important part in our scheme of government. In the discharge of its functions, it should not be
hampered with restrictions that would be fully warranted in the case of a less responsible
organization. The Commission may err, so may this Court also. It should be allowed
considerable latitude in devising means and methods that will insure the accomplishment of the
great objective for which it was created free, orderly and honest elections. We may not agree
fully with its choice of means, but unless these are clearly illegal or constitute gross abuse of
discretion, this court should not interfere. 39
A Word to COMELEC
The calling of a special election, if necessary, and the giving of notice to the electorate of
necessary information regarding a special election, are central to an informed exercise of the
right of suffrage. While the circumstances attendant to the present case have led us to conclude
that COMELEC's failure to so call and give notice did not invalidate the special senatorial election
held on 14 May 2001, COMELEC should not take chances in future elections. We remind
COMELEC to comply strictly with all the requirements under applicable laws relative to the
conduct of regular elections in general and special elections in particular.
WHEREFORE, we DISMISS the petition for lack of merit.
SO ORDERED.
G.R. No. 112889. April 18, 1995.]
BIENVENIDO O. MARQUEZ, JR., petitioner, vs. COMMISSION ON ELECTIONS and
EDUARDO T. RODRIGUEZ, respondents.
SYLLABUS
POLITICAL LAW; THE LOCAL GOVERNMENT CODE OF 1991; DISQUALIFICATION TO RUN FOR
ANY ELECTIVE LOCAL POSITION; FUGITIVE FROM JUSTICE, DEFINED. The Oversight
Committee finally came out with Article 73 of the Rules and Regulations Implementing the Local
Government Code of 1991. It provided: "Art. 73. Disqualifications. The following persons shall
be disqualified from running for any elective local position: "(a) . . . "(b) Fugitives from justice in
criminal or non-political cases here or abroad. Fugitive from justice refers to a person who has
been convicted by final judgment. " Private respondent reminds us that the construction placed
upon a law by the officials in charge of its enforcement deserves great and considerable weight
(Atlas Consolidated Mining and Development Corp. vs. CA, 182 SCRA 166, 181). The Court
certainly agrees; however, when there clearly is no obscurity and ambiguity in an enabling law,
it must merely be made to apply as it is so written. An administrative rule or regulation can
neither expand nor constrict the law but must remain congruent to it. The Court believes and
thus holds, albeit with some personal reservations of the ponente (expressed during the Courts
en banc deliberations), that Article 73 of the Rules and Regulations Implementing the Local
Government Code of 1991, to the extent that it confines the term "fugitive from justice" to refer
only to a person (the fugitive) "who has been convicted by final judgment," is an inordinate and
undue circumscription of the law.
DAVIDE, JR., J., separate opinion:
1.
POLITICAL LAW; SEC. 40; R.A. 7160 (LOCAL GOVERNMENT CODE OF 1991); ART. 73,
RULES AND REGULATIONS; UNREASONABLY EXPANDS THE SCOPE OF DISQUALIFICATION.
Section 40 of R.A. No. 7160, otherwise known as the Local Government Code of 1991
enumerates those who are disqualified from running for any elective local position, among
whom is a: (e) Fugitive from justice in criminal or non-political cases here or abroad. The term
"fugitive from justice" refers not only to those who flee after conviction to avoid punishment but
also to those who, after being charged, flee to avoid prosecution. In his ponencia, Mr. Justice

Jose C. Vitug finds the definition given to it by the Oversight Committee, i.e., "a person who has
been convicted by final judgment," as appearing in Article 73 of the Rules and Regulations
Implementing the Local Government Code of 1991, as inordinate and an undue circumscription
of the law. Justice Davide agrees and further submits that it also unreasonably expands the
scope of the disqualification in the 1991 Local Government Code because it disqualifies all those
who have been convicted by final judgment, regardless of the extent of the penalty imposed
and of whether they have served or are serving their sentences or have evaded service of
sentence by jumping bail or leaving for another country. The definition thus disregards the true
and accepted meaning of the word fugitive. This new definition is unwarranted for nothing in
the legislative debates has been shown to sustain it and the clear language of the law leaves no
room for a reexamination of the meaning of the term.
2.
ID.; ID.; DISQUALIFICATIONS, JUSTIFIED. There are certain fundamental
considerations which do not support the application of the presumption of innocence under the
Bill of Rights which support disqualification. Firstly, Section 1, Article V of the Constitution
recognizes the authority of Congress to determine who are disqualified from exercising the right
of suffrage. Since the minimum requirement of a candidate for a public office is that he must be
a qualified voter, it logically follows that Congress has the plenary power to determine who are
disqualified to seek election for a public office. Secondly, a public office is a public trust. Section
1, Article XI of the Constitution expressly so provides. A public office is not property. (ISAGANI
A. CRUZ, Constitutional Law, 1993 ed., 101; JOAQUIN BERNAS, The Constitution of the Republic
of the Philippines, A Commentary, 1987 ed., 40, citing Cornejo vs. Gabriel, 41 Phil. 188 [1920]).
Accordingly, stricter qualifications for public office may thus be required by law. Thirdly, the
disqualification in question does not, in reality, involve the issue of presumption of innocence.
Elsewise stated, one is not disqualified because he is presumed guilty by the filing of an
information or criminal complaint against him. He is disqualified because he is a "fugitive from
justice," i.e., he was not brought within the jurisdiction of the court because he had successfully
evaded arrest; or if he was brought within the jurisdiction of the court and was tried and
convicted, he has successfully evaded arrest; or if he was brought within the jurisdiction of the
court and was tried and convicted, he has successfully evaded service of sentence because he
had jumped bail or escaped. The disqualification then is based on his flight from justice. In the
face of the settled doctrine that flight is an indication of guilt, it may even be truly said that it is
not the challenged disqualifying provision which overcomes the presumption of innocence but
rather the disqualified person himself who has proven his guilt. Finally, Dumlao vs. COMELEC
(95 SCRA 392 [1980]) cannot be invoked to case doubt on the validity of the challenged
disqualification. Dumlao struck out as violative of the constitutional presumption of innocence
that portion of the second paragraph, Section 4 of B.P. Blg. 52 providing that "the filing of
charges for the commission of such crimes before a civil court or military tribunal after
preliminary investigation shall be prima facie evidence of such fact." It is clear that the law
challenged therein did in fact establish a presumption of guilt from the mere filing of the
information or criminal complaint, in violation of the constitutional right to presumption of
innocence.
DECISION
The Court is called upon, in this petition for certiorari, to resolve the conflicting claims of the
parties on the meaning of the term "fugitive from justice" as that phrase is so used under the
provisions of Section 40(e) of the Local Government Code (Republic Act No. 7160). That law
states:
"Sec. 40. Disqualifications. The following persons are disqualified from running for any
elective local position:
"xxx
xxx
xxx
"(e)
Fugitive from justice in criminal or non-political cases here or abroad(.)"
Bienvenido Marquez, a defeated candidate for the elective position of Governor in the Province
of Quezon in the 11th May 1992 elections filed this petition for certiorari praying for the reversal
of the resolution of the Commission on Elections ("COMELEC") which dismissed his petition for

quo warranto against the winning candidate, herein private respondent Eduardo Rodriguez, for
being allegedly a fugitive from justice. prLL
It is averred that at the time private respondent filed his certificate of candidacy, a criminal
charge against him for ten (10) counts of insurance fraud or grand theft of personal property
was still pending before the Municipal Court of Los Angeles Judicial District, County of Los
Angeles, State of California, U.S.A. A warrant issued by said court for his arrest, it is claimed,
has yet to be served on private respondent on account of his alleged "flight" from that country.
Before the 11th May 1992 elections, a petition for cancellation (SPA 92-065) of respondent's
certificate of candidacy, on the ground of the candidate's disqualification under Section 40(e) of
the Local Government Code, was filed by petitioner with the COMELEC. On 08 May 1992, the
COMELEC dismissed the petition.
Petitioner's subsequent recourse to this Court (in G.R. No. 105310) from the 08th May 1992
resolution of COMELEC was dismissed without prejudice, however, to the filing in due time of a
possible post-election quo warranto proceeding against private respondent. The Court, in its
resolution of 02 June 1992, held:
"Evidently, the matter elevated to this Court was a pre-proclamation controversy. Since the
private respondent had already been proclaimed as the duly elected Governor of the Province of
Quezon, the petitioner below for disqualification has ceased to be a pre-proclamation
controversy. In Casimiro vs. Commission on Elections, G.R. Nos. 84462-63 and Antonio vs.
Commission on Elections, G.R. Nos. 84678-79, jointly decided on 29 March 1989, 171 SCRA 468,
this court held that a pre-proclamation controversy is no longer viable at this point of time and
should be dismissed. The proper remedy of the petitioner is to pursue the disqualification suit in
a separate proceeding. llcd
"ACCORDINGLY, the Court Resolved to DISMISS the petition, without prejudice to the filing of
the appropriate proceedings in the proper forum, if so desired, within ten (10) days from
notice." 1
Private respondent was proclaimed Governor-elect of Quezon on 29 May 1992. Forthwith,
petitioner instituted quo warranto proceedings (EPC 92-28) against private respondent before
the COMELEC. In its 02 February 1993 resolution, the COMELEC (Second Division) dismissed the
petition. The COMELEC En Banc, on 02 December 1993, denied a reconsideration of the
resolution.
Hence, this petition for certiorari, the core issue of which, such as to be expected, focuses on
whether private respondent who, at the time of the filing of his certificate of candidacy (and to
date), is said to be facing a criminal charge before a foreign court and evading a warrant for his
arrest comes within the term "fugitive from justice" contemplated by Section 40(e) of the Local
Government Code and, therefore, disqualified from being a candidate for, and thereby ineligible
from holding on to, an elective local office.
Petitioner's position is perspicuous and to the point. The law, he asseverates, needs no further
interpretation and construction. Section 40(e) of Republic Act No. 7160, is rather clear, he
submits, and it disqualifies "fugitives from justice in criminal or non-political cases here or
abroad" from seeking any elective local office. The Solicitor General, taking the side of
petitioner, expresses a like opinion and concludes that the phrase "fugitive from justice" includes
not only those who flee after conviction to avoid punishment but likewise those who, after being
charged, flee to avoid prosecution. This definition truly finds support from jurisprudence
(Philippine Law Dictionary, Third Edition, p. 399, by F.B. Moreno; Black's Law Dictionary, Sixth
Edition, p. 671; King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103; Hughes vs. PFlanz, 138
Federal Reporter 980; Tobin vs. Casaus, 275 Pacific Reporter, 2d., p. 792), and it may be so
conceded as expressing the general and ordinary connotation of the term.
In turn, private respondent would have the Court respect the conclusions of the Oversight
Committee which, conformably with Section 533 2 of RA. 7160, was convened by the President
to "formulate and issue the appropriate rules and regulations necessary for the efficient and
effective implementation of any and all provisions of the Code to ensure compliance with the
principles of Local Autonomy." cdll
Here are some excerpts from the committee's deliberations:
"'CHAIRMAN MERCADO. Session is resumed.

'So, we are in agreement to retain Line 12, Page 36, as is. So next, Page 39.
'CHAIRMAN DE PEDRO. Kay Benny Marquez.
'REP. CUENCO. What does he want?
'CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan. Bahala na kung kuwestiyunin ang
constitutionality nito before the Supreme Court later on.
'REP. CUENCO. Anong nakalagay diyan?
'CHAIRMAN DE PEDRO. Iyong disqualification to run for public office.
'Any person who is a fugitive from justice in criminal or nonpolitical cases here or abroad."
'Mabigat 'yung abroad.' One who is facing criminal charges with the warrant of arrest pending,
unserved. . .
'HONORABLE SAGUISAG. I think that is even a good point, and what is a fugitive? It is not
defined. We have loose understanding. . .
'CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms iyong 'fugitive.'
'Si Benny umalis na, with the understanding na okay na sa atin ito.'
"THE CHAIRMAN. Whether we have this rule or not she can run. She is not a fugitive from
justice. Mrs. Marcos can run at this point and I have held that for a long time ago. So can. . .
"MS. DOCTOR. Mr. Chairman. . .
"THE CHAIRMAN. Yes.
"MS. DOCTOR. Let's move to. . .
"THE CHAIRMAN. Wait, wait, wait. Can we just agree on the wording, this is very important.
Manny, can you come up?
"MR. REYES. Let's use the word conviction by final judgment.
"THE CHAIRMAN. Fugitive means somebody who is convicted by final judgment. Okay, Fugitive
means a person convicted by final judgment. Insert that on Line 43 after the semi-colon. Is that
approved? No objection, approved (TSN, Oversight Committee, 07 May 1991).
"xxx
xxx
xxx
"THE CHAIRMAN. Andy, saan ba naman itong amendment on page 2? Sino ba ang gumawa
nito? Okay, on page 2, lines 43 and 44, 'fugitive from justice.' What 'fugitive?' Sino ba ang
gumawa nito, ha?
"MR. SANCHEZ. Yes, I think, well, last time, Mr. Chairman, we agree to clarify the word what
is meant by the word 'fugitive.'
"THE CHAIRMAN. 'Fugitive from justice means a person' ba ito, ha?
"MR. SANCHEZ. Means a person. . .
"THE CHAIRMAN. Ha?
"HON. REYES. A person who has been convicted.
"THE CHAIRMAN. Yes, fugitive from justice, oo. Fugitive from justice shall mean or means one
who has been convicted by final judgment. It means one who has been convicted by final
judgment.
"HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan.
"THE CHAIRMAN. Ano? Sige, tingnan natin.
"HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin siya?
"THE CHAIRMAN. O, tama na yan, fugitive from justice. He has been convicted by final
judgment, meaning that if he is simply in jail and because he put up, post bail, but the case is
still being reviewed, that is not yet conviction by final judgment." 3
The Oversight Committee evidently entertained serious apprehensions on the possible
constitutional infirmity of Section 40(e) of Republic Act No. 7160 if the disqualification therein
meant were to be so taken as to embrace those who merely were facing criminal charges. A
similar concern was expressed by Senator R.A.V. Saguisag who during the bicameral conference
committee of the Senate and the House of Representatives, made this reservation:
". . . de ipa-refine lang natin 'yung language especially 'yung, the scope of fugitive. Medyo
bothered ako doon, a." 4
The Oversight Committee finally came out with Article 73 of the Rules and Regulations
Implementing the Local Government Code of 1991. It provided:
"Art. 73. Disqualifications. The following persons shall be disqualified from running for any
elective local position:

"(a)
...
"(b)
Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from
justice refers to a person who has been convicted by final judgment." 5 (Italics supplied)
Private respondent reminds us that the construction placed upon a law by the officials in charge
of its enforcement deserves great and considerable weight (Atlas Consolidated Mining and
Development Corp. vs. CA, 182 SCRA 166, 181). The Court certainly agrees; however, when
there clearly is no obscurity and ambiguity in an enabling law, it must merely be made to apply
as it is so written. An administrative rule or regulation can neither expand nor constrict the law
but must remain congruent to it. The Court believes and thus holds, albeit with some personal
reservations of the ponente (expressed during the Court's en banc deliberations), that Article 73
of the Rules and Regulations Implementing the Local Government Code of 1991, to the extent
that it confines the term "fugitive from justice" to refer only to a person (the fugitive) "who has
been convicted by final judgment," is an inordinate and undue circumscription of the law.
Unfortunately, the COMELEC did not make any definite finding on whether or not, in fact,
private respondent is a "fugitive from justice" as such term must be interpreted and applied in
the light of the Court's opinion. The omission is understandable since the COMELEC dismissed
outrightly the petition for quo warranto on the basis instead of Rule 73 of the Rules and
Regulations promulgated by the Oversight Committee. The Court itself, not being a trier of facts,
is thus constrained to remand the case to the COMELEC for a determination of this unresolved
factual matter. prLL
WHEREFORE, the questioned resolutions of the Commission on Elections are REVERSED and
SET ASIDE, and the case is hereby REMANDED to the Commission which is DIRECTED to
proceed and resolve the case with dispatch conformably with the foregoing opinion. No special
pronouncement on costs.
SO ORDERED.
G.R. No. 120099. July 24, 1996.]
EDUARDO T. RODRIGUEZ, petitioner, vs. COMMISSION ON ELECTIONS, BIENVENIDO
O. MARQUEZ, JR., respondents.
SYLLABUS
1.
POLITICAL LAW; ELECTIONS; LOCAL GOVERNMENT CODE (R.A. 7160);
DISQUALIFICATION; "FUGITIVE FROM JUSTICE", DEFINED. The instant petition dwells on
that nagging issue of whether Rodriguez is a "fugitive from justice," the determination of which,
as we have directed the COMELEC on two (2) occasions (in the MARQUEZ Decision and in the
Court's October 24, 1995 Resolution), must conform to how such term has been defined by the
Court in the MARQUEZ Decision. To reiterate, a "fugitive from justice" includes not only those
who flee after conviction to avoid punishment but likewise who, after being charged, flee to
avoid prosecution." The definition thus indicates that the intent to evade is the compelling factor
that animates one's flight from a particular jurisdiction. And obviously, there can only be an
intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an
already instituted indictment, or of a promulgated judgment of conviction.
2.
REMEDIAL LAW; ACTIONS; LAW OF THE CASE; COURT CANNOT CRAFT AN
EXPANDED DEFINITION OF A "FUGITIVE FROM JUSTICE" DEFINED IN ITS EARLIER DECISION.
Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as earlier quoted) seem to
urge the Court to re-define "fugitive from justice." They espouse the broader concept of the
term as culled from foreign authorities (mainly of U.S. vintage) cited in the MARQUEZ Decision
itself, i.e. that one becomes a "fugitive from justice" by the mere fact that he leaves the
jurisdiction where a charge is pending against him, regardless of whether or not the charge has
already been filed at the time of his flight. Suffice it to say that the "law of the case" doctrine
forbids the Court to craft an expanded re-definition of "fugitive from justice" (which is at
variance with the MARQUEZ Decision) and proceed therefrom in resolving the instant petition.
To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not Rodriguez is
a "fugitive from justice") are involved in the MARQUEZ Decision and the instant petition. The
MARQUEZ Decision was an appeal from EPC No. 92-28 (the Marquez' quo warranto petition

before the COMELEC). The instant petition is also an appeal from EPC No. 92-28 although the
COMELEC resolved the latter jointly with SPA No. 95-089 (Marquez' petition for the
disqualification of Rodriguez). Therefore, what was irrevocably established as the controlling
legal rule in the MARQUEZ Decision must govern the instant petition. And we specifically refer to
the concept of "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision
which highlights the significance of an intent to evade but which Marquez and the COMELEC,
with their proposed expanded definition, seem to trivialize. Besides, to re-define "fugitive from
justice" would only foment instability in our jurisprudence when hardly has the ink dried in the
MARQUEZ Decision.
3.
POLITICAL LAW; ELECTIONS; LOCAL GOVERNMENT CODE (R.A. 7160);
DISQUALIFICATION; "FUGITIVE FROM JUSTICE"; FILING OF CHARGES AT THE TIME OF
FLIGHT, INDISPENSABLE. To summarize, the term "fugitive from justice" as a ground for the
disqualification or ineligibility of a person seeking to run for any elective local position under
Section 40(e) of the Local Government Code, should be understood according to the definition
given in the MARQUEZ Decision, to wit: "A 'fugitive from justice' includes not only those who
flee after conviction to avoid punishment but likewise those who, after being charged, flee to
avoid prosecution." Intent to evade on the part of a candidate must therefore be established by
proof that there has already been a conviction or at least, a charge has already been filed, at
the time of flight. Not being a "fugitive from justice" under this definition, Rodriguez cannot be
denied the Quezon Province gubernatorial post.
TORRES, JR., J., concurring opinion:
1.
POLITICAL LAW; ELECTION; LOCAL GOVERNMENT CODE (R.A. 7160);
DISQUALIFICATION; CANDIDATE WHO RETURNED TO THE PHILIPPINES FIVE MONTHS
BEFORE THE FILING OF CRIMINAL CHARGES IN THE UNITED STATES, NOT A "FUGITIVE FROM
JUSTICE." Petitioner should not be considered disqualified or ineligible from assuming and
performing the functions of Governor of Quezon Province. Petitioner returned to the Philippines
from the United States on June 25, 1985 while the criminal complaint against him for fraudulent
insurance claims, grand theft and attempted grand theft of personal property before the
Municipal Court of Los Angles, California was filed almost 5 months later, or on November 12,
1985. Verily, it cannot be said that he fled to avoid prosecution for at the time he left the United
States, there was yet no case or prosecution to avoid.
2.
ID.; ID.; WHERE A CANDIDATE HAS RECEIVED POPULAR MANDATE, ALL POSSIBLE
DOUBTS SHOULD BE RESOLVED IN FAVOR OF CANDIDATES' ELIGIBILITY. Petitioner appears
to have garnered 285,202 votes. According to the election results, petitioner won over private
respondent by a majority of 140,000 votes more or less. As it is, to disqualify petitioner on the
shaky ground of being a "fugitive from justice" would amount to disenfranchising the electorate
in whom sovereignty resides. Thus, where a candidate has received popular mandate,
overwhelmingly and clearly expressed, all possible doubts should be resolved in favor of the
candidate's eligibility, for the rule otherwise is to defeat the will of the people. Above and
beyond all, the determination of the true will of the electorate should be paramount. It is their
voice, not ours or of anyone else, that must prevail. This, in essence, is the democracy we
continue to hold sacred.
VITUG, J., dissenting opinion:
1.
REMEDIAL LAW; ACTIONS; FORUM-SHOPPING; ACTIONS ARE OF THE SAME NATURE
AND INVOLVE IDENTICAL ISSUES BETWEEN THE PARTIES; DOES NOT APPLY WHERE A PARTY
FILES DISQUALIFICATION CASES FOR TWO DIFFERENT GUBERNATORIAL TERMS; CASE AT
BAR. Rodriguez contends that the COMELEC should not have entertained the disqualification
case (SPA NO. 95-089) for being an act of "forum-shopping" on the part of Marquez. Clearly,
there is no merit in this submission. The general statement of the prohibition against forumshopping is that a party should not be allowed to pursue on the same subject matter
simultaneous remedies in two or more different fora that can tend to degrade the administration
of justice by thusly trifling with the courts and abusing their processes. Forum-shopping exists
where the action are the same nature and involve identical transactions, circumstances, and
issues between the same parties. While there is identity in many respect between SPA No. 95089 and EPC No. 92-28, the two cases, however, greatly differ in their main aspects. EPC No.

92-28 (subject case of G.R. No. 112889) is a quo warranto case and involves petitioner's
gubernatorial incumbency for the term 1992-1995 while SPA No. 95-089 is disqualification case
involving his candidacy for the 1995 local elections.
2.
POLITICAL LAW; LOCAL GOVERNMENT CODE OF 1991; SEC. 40(E) THEREOF, NOT
AN EX POST FACTO LAW OR A BILL OF ATTAINDER. Rodriguez argues that should Section
40(e) of the Local Government Code of 1991 be applied to him, it would partake the nature of
an ex post facto law or a bill of attainder. These terms have settled meanings in criminal law
jurisprudence that clearly have no relevance to the case before us. Besides the Local
Government Code took effect 01 January 1992, and thus its application to Rodriguez in his
gubernatorial incumbency that started in mid-1992 and his candidacy for the 1995 elections
cannot be deemed to be retrospective in character.
3.
ID.; ELECTIONS; OMNIBUS ELECTION CODE; SEVEN (7)-DAY PERIOD TO RESOLVE
DISQUALIFICATION CASES, MERELY DIRECTORY. Petitioner claims that the COMELEC did
not have jurisdiction to issue the questioned resolution on the eve of the election because the
Omnibus Election Code requires that final decisions in disqualification cases should be rendered
not later than seven (7) days before the election. In any case, the "seven days" stated in the
law, being evidently intended for administrative feasibility, should be construed as a mere
directory rather than as a mandatory, provision of the Omnibus Election Code. A provision
should be deemed to be directory only when to have it enforced strictly may cause more harm
than by disregarding it.
4.
REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; DENIAL BY COMELEC OF
MOTION TO SUSPEND HEARING IN DISQUALIFICATION CASE DUE TO PENDENCY OF QUO
WARRANTO CASES, NOT A GRAVE ABUSE OF DISCRETION. The next question posed was
whether or not the COMELEC gravely abused its discretion when, in the scheduled hearing of 26
April 1995, it refused to grant the motion of Rodriguez for a suspension of hearing. Far from it,
the denial by COMELEC would appear to have been both prudent and legally warranted. The
motion was grounded on the pendency of G.R. No. 112889 (the quo warranto case), whereas,
the 26th April 1995 hearing related to the disqualification case (SPA 95-089) for the 1995
election that undoubtedly had to be resolved quickly. The COMELEC hardly had any choice but
to proceed with the hearing and, when Rodriguez thereupon walked out, Marquez was naturally
allowed to present his evidence ex-parte. Perhaps realizing that the COMELEC had acted
correctly, petitioner would question the holding of the 26th April 1995 hearing by only one
member (Commissioner Teresita Flores) of the Second Division. Not only was this matter not
timely brought up before the COMELEC, but that there would appear to be no problem in the
delegation by the COMELEC of the mere reception of evidence to any one of its members. All
the assailed resolutions of COMELEC would indicate that the required concurrence of the
Commissioners was given. The subsequent consolidation of the quo warranto case with that of
the disqualification case (following our 18th April 1995 decision remanding the case to
COMELEC), and the promulgation of the 07th May 1995 consolidated resolution, would also
seem to be in conformity with Rule 3, Section 9, of the COMELEC Rules of Procedure, which
reads: "Sec. 9. Consolidation of cases. When an action or proceedings involves a question of
law and fact which is similar to or common with that of another action or proceeding, the same
may be consolidated with the action or proceeding bearing the lower docket number."
Moreover, a further hearing on the quo warranto case so involving, as it does, petitioner's now
expired incumbency, would be unnecessary and a futile effort.
5.
POLITICAL LAW; ELECTIONS; LOCAL GOVERNMENT CODE (R.A. 7160);
DISQUALIFICATION; "FUGITIVE FROM JUSTICE"; CONGRESS, IN THE ABSENCE OF CLEAR
LEGISLATIVE INTENT, MUST HAVE INTENDED THE ORDINARY CONNOTATION OF THE TERM
TO PREVAIL; TERM REFERS TO ONE WHO, HAVING COMMITTED OR BEING ACCUSED OF
HAVING COMMITTED A CRIME IN ONE JURISDICTION CAN NOT BE FOUND THEREIN, OR IS
ABSENT FOR ANY REASON FROM THAT JURISDICTION. There is a dearth of authorities on
the proper and legal connotation of the phrase "fugitive from justice." Neither the law (Republic
Act No. 7160, also known as the Local Government Code) here in question nor the deliberations
in Congress give much clue to the legislative intent. The phrase has been used in various
contexts although it is in extradition cases where it appears to have acquired a prevalent usage.

It is evident enough though, in my view, that Congress, not having provided otherwise, must
have intended the ordinary connotation of the term to prevail. So taken, it might be understood
as referring to one who, having committed or being accused of having committed a crime in one
jurisdiction, cannot be found therein or is absent for any reason from the jurisdiction that
thereby forestalls criminal justice from taking its due course. The issue is largely a factual matter
and in that determination, the motive or reason for his plight need not be inquired into. Animus
fugere may be significant but it is not essential and what matters is not why he leaves but the
fact that he leaves, for it should not be unreasonable to assume that he was not unaware of his
own prior deeds or misdeeds. As so conceptualized, the import of the term is more congruent
than variant with what has heretofore been essayed to be, in fact, its common usage. Indeed,
unlike the U.S. courts which are yet detained by the conditions expressed in both their
fundamental and statutory laws, the pertinent provision of our own Local Government Code
contains no further circumscription other than by its bare and simple mandate that a "fugitive
from justice in criminal or non-political cases here or abroad" shall be "disqualified from running
for any elective local position." The law has provided no further provisos and no saving clauses.
When there is no obscurity or ambiguity in an enabling law, it must, we have said in the related
case of Marquez vs. Comelec, be merely made to apply as it is so written. This Court is not at
liberty either to question the wisdom of the law, let alone to detract from it, or to itself legislate
material parameters when there are none that statutorily exist.
6.
REMEDIAL LAW; EVIDENCE; FINDINGS OF FACTS OF THE COMELEC SUPPORTED BY
SUBSTANTIAL EVIDENCE, UPHELD ON APPEAL; CASE AT BAR. I now come to the final
question of whether or not substantial evidence has been adduced to support the factual
findings of the COMELEC and, corollarily, whether or not petitioner has been duly accorded full
opportunity to present before the COMELEC his own evidence to disprove the assertions of
private respondent. It may be recalled that, following the denial of the motion of Rodriguez to
postpone the scheduled 26th April 1995 hearing, the COMELEC continued, because of the
proximity of the May 1995 elections, with its reception of the evidence (despite the walk-out
thereupon staged by Rodriguez and his counsel). Duly received in evidence included an
authenticated copy of the warrant of arrest, dated 12 November 1985, on respondent (Exh. A-2)
issued by the Municipal Court of the County of Los Angeles, State of California, U.S.A., in
connection with a criminal complaint filed against him in Criminal Case No. A774567, entitled
"People of the State vs. Imelda O. Rodriguez and Eduardo T. Rodriguez for the crimes of
presenting Fraudulent Insurance Claims, Grand Theft of Personal Property and Attempted Grand
Theft of Personal Property, " and an authenticated copy of the felony complaint (Exh. A-10 to A15 inclusive), showing that the respondent was charged criminally on ten (10) counts. The
petitioner and his counsel walked out from the proceedings. Certainly, the thesis that petitioner
was denied due process would be totally unacceptable; he himself brushed it aside.
7.
ID.; COURTS; FREE TO LOOK INTO AND RECEIVE EVIDENCE ON REGULARITY OF
PROCEEDINGS IN FOREIGN JURISDICTION AFFECTING FILIPINOS. While it may generally be
said that the possible outcome or truth of an indictment need not necessarily be an issue in
ascertaining whether or not one is a fugitive from justice, when, however, the accusation is
lodged with and an arrest is ordered by a foreign court or agency we might also assure
ourselves as a matter of principle that, in the process of sanctioning in effect an act of a foreign
government, we do not thereby abandon our own basic sense of equity and fair play. There
cannot thus be any serious doubt that, when assailed or in doubt, the courts are free to look
into, and receive evidence on, the legitimacy and regularity of the proceedings in that foreign
jurisdiction.
DECISION
Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez, Jr. (Rodriguez
and Marquez, for brevity) were protagonists for the gubernatorial post of Quezon Province in the
May 1992 elections. Rodriguez won and was proclaimed duly-elected governor.
Marquez challenged Rodriguez' victory via petition for quo warranto before the COMELEC (EPC
No. 92-28). Marquez revealed that Rodriguez left the United States where a charge, filed on
November 12, 1985, is pending against the latter before the Los Angeles Municipal Court for

fraudulent insurance claims, grand theft and attempted grand theft of personal property.
Rodriguez is therefore a "fugitive from justice" which is a ground for his
disqualification/ineligibility under Section 40(e) of the Local Government Code (R.A. 7160), so
argued Marquez.
The COMELEC dismissed Marquez' quo warranto petition (EPC No. 92-28) in a resolution of
February 2, 1993, and likewise denied a reconsideration thereof.
Marquez challenged the COMELEC dismissal of EPC No. 92-28 before this Court via petition for
certiorari, docketed as G.R. No. 112889. The crux of said petition is whether Rodriguez is a
"fugitive from justice" as contemplated by Section 40(e) of the Local Government Code based
on the alleged pendency of a criminal charge against him (as previously mentioned).
In resolving that Marquez petition (112889), the Court in "Marquez, Jr. vs. COMELEC"
promulgated on April 18, 1995, now appearing in Volume 243, page 538 of the SCRA and
hereinafter referred to as the MARQUEZ Decision, declared that:
". . . ,'fugitive from justice' includes not only those who flee after conviction to avoid punishment
but likewise those who, after being charged, flee to avoid prosecution. This definition truly finds
support from jurisprudence (. . .), and it may be so conceded as expressing the general and
ordinary connotation of the term." 1
Whether or not Rodriguez is a "fugitive from justice" under the definition thus given was not
passed upon by the Court. That task was to devolve on the COMELEC upon remand of the case
to it, with the directive to proceed therewith with dispatch conformably with the MARQUEZ
Decision. Rodriguez sought a reconsideration thereof. He also filed an "Urgent Motion to Admit
Additional Argument in Support of the Motion for Reconsideration" to which was attached a
certification from the Commission on Immigration showing that Rodriguez left the US on June
25, 1985 roughly five (5) months prior to the institution of the criminal complaint filed against
him before the Los Angeles court. The Court however denied a reconsideration of the MARQUEZ
Decision.
In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the same position
of governor. This time, Marquez challenged Rodriguez' candidacy via petition for disqualification
before the COMELEC, based principally on the same allegation that Rodriguez is a "fugitive from
justice." This petition for disqualification (SPA No. 95-089) was filed by Marquez on April 11,
1995 when Rodriguez' petition for certiorari (112889) from where the April 18, 1995
MARQUEZ Decision sprung was still then pending before the Court.
On May 7, 1995 and after the promulgation of the MARQUEZ Decision, the COMELEC
promulgated a Consolidated Resolution for EPC No. 92-28 (quo warranto case) and SPA No. 95089 (disqualification case). In justifying a joint resolution of these two (2) cases, the COMELEC
explained that:
1.
EPC No. 92-28 and SPA No. 95-089 are inherently related cases;
2.
the parties, facts and issue involved are identical in both cases;
3.
the same evidence is to be utilized in both cases in determining the common issue of
whether Rodriguez is a "fugitive from justice";
4.
on consultation with the Commission En Banc, the Commissioners unanimously
agreed that a consolidated resolution of the two (2) cases is not procedurally flawed.
Going now into the meat of that Consolidated Resolution, the COMELEC, allegedly having kept in
mind the MARQUEZ Decision definition of "fugitive from justice", found Rodriguez to be one.
Such finding was essentially based on Marquez' documentary evidence consisting of
1.
an authenticated copy of the November 12, 1995 warrant of arrest issued by the Los
Angeles municipal court against Rodriguez, and
2.
an authenticated copy of the felony complaint
which the COMELEC allowed to be presented ex-parte after Rodriguez walked-out of the hearing
of the case on April 26, 1995 following the COMELEC's denial of Rodriguez' motion for
postponement. With the walk-out, the COMELEC considered Rodriguez as having waived his
right to disprove the authenticity of Marquez' aforementioned documentary evidence. The
COMELEC thus made the following analysis:
"The authenticated documents submitted by petitioner (Marquez) to show the pendency of a
criminal complaint against the respondent (Rodriguez) in the Municipal Court of Los Angeles,

California, U.S.A., and the fact that there is an outstanding warrant against him amply proves
petitioner's contention that the respondent is a fugitive from justice. The Commission cannot
look with favor on respondent's defense that long before the felony complaint was allegedly
filed, respondent was already in the Philippines and he did not know of the filing of the same
nor was he aware that he was being proceeded against criminally. In a sense, thru this defense,
respondent implicitly contends that he cannot be deemed a fugitive from justice, because to be
so, one must be aware of the filing of the criminal complaint, and his disappearance in the place
where the long arm of the law, thru the warrant of arrest, may reach him is predicated on a
clear desire to avoid and evade the warrant. This allegation in the Answer, however, was not
even fortified with any attached document to show when he left the United States and when he
returned to this country, facts upon which the conclusion of absence of knowledge about the
criminal complaint may be derived. On the contrary, the fact of arrest of respondent's wife on
November 6, 1985 in the United States by the Fraud Bureau investigators in an apartment paid
for respondent in that country can hardly rebut whatever presumption of knowledge there is
against the respondent." 2
And proceeding therefrom, the COMELEC, in the dispositive portion, declared:
"WHEREFORE, considering that respondent has been proven to be fugitive from justice, he is
hereby ordered disqualified or ineligible from assuming and performing the functions of
Governor of Quezon Province. Respondent is ordered to immediately vacate said office. Further,
he is hereby disqualified from running for Governor for Quezon Province in the May 8, 1995
elections. Lastly, his certificate of candidacy for the May 8, 1995 elections is hereby set aside."
At any rate, Rodriguez again emerged as the victorious candidate in the May 8, 1995 election for
the position of governor.
On May 10 and 11, 1995, Marquez filed urgent motions to suspend Rodriguez' proclamation
which the COMELEC granted on May 11, 1995. The Provincial Board of Canvassers nonetheless
proclaimed Rodriguez on May 12, 1995.
The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No. 95-089 and the May 11,
1995 Resolution suspending Rodriguez' proclamation thus gave rise to the filing of the instant
petition for certiorari (G.R. No. 120099) on May 16, 1995.
On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The Proclamation Of Rodriguez,
To Proclaim Marquez And To Cite The Provincial Board of Canvassers in Contempt" before the
COMELEC (in EPC No. 92-28 and SPA No. 95-089).
Acting on Marquez' omnibus motion, the COMELEC, in its Resolution of June 23, 1995, nullified
Rodriguez' proclamation and ordered certain members of the Quezon Province Provincial Board
of Canvassers to explain why they should not be cited in contempt for disobeying the poll body's
May 11, 1995 Resolution suspending Rodriguez' proclamation. But with respect to Marquez'
motion for his proclamation, the COMELEC deferred action until after this Court has resolved the
instant petition (G.R. No. 120099).
Rodriguez filed a motion to admit supplemental petition to include the aforesaid COMELEC June
23, 1995 Resolution, apart from the May 7 and May 11, 1995 Resolutions (Consolidated
Resolution and Order to suspend Rodriguez' proclamation, respectively).
As directed by the Court, oral arguments were had in relation to the instant petition (G.R. No.
120099) on July 13, 1995.
Marquez, on August 3, 1995, filed an "Urgent Motion For Temporary Restraining Order Or
Preliminary Injunction" which sought to restrain and enjoin Rodriguez "from exercising the
powers, functions and prerogatives of Governor of Quezon . . ." Acting favorably thereon, the
Court in a Resolution dated August 8, 1995 issued a temporary restraining order. Rodriguez'
"Urgent Motion To Lift Temporary Restraining Order And/Or For Reconsideration" was denied by
the Court in an August 15, 1995 Resolution. Another similar urgent motion was later on filed by
Rodriguez which the Court also denied.
In a Resolution dated October 24, 1995, the Court
". . . RESOLVED to DIRECT the Chairman of the Commission on Elections ('COMELEC') to
designate a Commissioner or a ranking official of the COMELEC to RECEIVE AND EVALUATE
such legally admissible evidence as herein petitioner Eduardo Rodriguez may be minded to
present by way of refuting the evidence heretofore submitted by private respondent Bienvenido

Marquez, Sr., or that which can tend to establish petitioner's contention that he does not fall
within the legal concept of a 'fugitive from justice.' Private respondent Marquez may likewise, if
he so desires, introduce additional and admissible evidence in support of his own position. The
provisions of Sections 3 to 10, Rule 33, of the Rules of Court may be applied in the reception of
the evidence. The Chairman of the COMELEC shall have the proceedings completed and the
corresponding report submitted to this Court within thirty (30) days from notice hereof."
The COMELEC complied therewith by filing before the Court, on December 26, 1995, a report
entitled "EVIDENCE OF THE PARTIES and COMMISSION'S EVALUATION" wherein the COMELEC,
after calibrating the parties' evidence, declared that Rodriguez is NOT a "fugitive from justice" as
defined in the main opinion of the MARQUEZ Decision, thus making a 180-degree turnaround
from its finding in the Consolidated Resolution. In arriving at this new conclusion, the COMELEC
opined that intent to evade is a material element of the MARQUEZ Decision definition. Such
intent to evade is absent in Rodriguez' case because evidence has established that Rodriguez
arrived in the Philippines (June 25, 1985) long before the criminal charge was instituted in the
Los Angeles Court (November 12, 1985).
But the COMELEC report did not end there. The poll body expressed what it describes as its
"persistent discomfort" on whether it read and applied correctly the MARQUEZ Decision
definition of "fugitive from justice". So as not to miss anything, we quote the COMELEC's
observations in full:
". . . The main opinion's definition of a 'fugitive from justice 'includes not only those who flee
after conviction to avoid punishment but also those who, after being charged, flee to avoid
prosecution.' It proceeded to state that:
This definition truly finds support from jurisprudence (Philippine Law Dictionary Third Edition, p.
399 by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King v. Noe, 244 SC 344; 137
SE 2d 102, 103; Hughes v. Pflanz, 138 Federal Reporter 980; Tobin v. Casaus, 275 Pacific
Reporter 2d p. 792), and it may be so conceded as expressing the general and ordinary
connotation of the term.
But in the majority of the cases cited, the definition of the term 'fugitive from justice'
contemplates other instances not explicitly mentioned in the main opinion. Black's Law
Dictionary begins the definition of the term by referring to a 'fugitive from justice' as:
(A) person, who, having committed a crime, flees from jurisdiction of the court where crime was
committed or departs from his usual place of abode and conceals himself within the district. . . .
Then, citing King v. Noe, the definition continues and conceptualizes a 'fugitive from justice' as:
. . . a person who, having committed or been charged with a crime in one state, has left its
jurisdiction and is found within the territory of another when it is sought to subject him to the
criminal process of the former state. (our emphasis)
In Hughes v. Pflanz, the term was defined as:
a person who, having committed within a state a crime, when sought for, to be subjected to
criminal process, is found within the territory of another state.
Moreno's Philippine Law Dictionary, 5th Ed. considers the term as an:
expression which refers to one having committed, or being accused, of a crime in one
jurisdiction and is absent for any reason from that jurisdiction.
Specifically, one who flees to avoid punishment . . . (Emphasis ours)
From the above rulings, it can be gleaned that the objective facts sufficient to constitute flight
from justice are: (a) a person committed a 'crime' or has been charged for the commission
thereof; and (b) thereafter, leaves the jurisdiction of the court where said crime was committed
or his usual place of abode.
Filing of charges prior to flight is not always an antecedent requirement to label one a 'fugitive
from justice'. Mere commission of a 'crime' without charges having been filed for the same and
flight subsequent thereto sufficiently meet the definition. Attention is directed at the use of the
word 'crime' which is not employed to connote guilt or conviction for the commission thereof.
Justice Davide's separate opinion in G.R. No. 112889 elucidates that the disqualification for
being a fugitive does not involve the issue of the presumption of innocence, the reason for
disqualification being that a person 'was not brought within the jurisdiction of the court because
he had successfully evaded arrest; or if he was brought within the jurisdiction of the court and

was tried and convicted, he has successfully evaded service of sentence because he had jumped
bail or escaped. The disqualification then is based on his 'flight from justice'.
Other rulings of the United States Supreme Court further amplify the view that intent and
purpose for departure is inconsequential to the inquiry. The texts, which are persuasive in our
jurisdiction, are more unequivocal in their pronouncements. In King v. US (144 F. 2nd 729),
citing Roberts v. Reilly (116 US 80) the United States Supreme Court held:
. . . it is not necessary that the party should have left the state or the judicial district where the
crime is alleged to have been committed, after an indictment found, or for the purpose of
avoiding an anticipated prosecution, but that, having committed a crime within a state or
district, he has left and is found in another jurisdiction (emphasis supplied)
Citing State v. Richter (37 Minn. 436), the Court further ruled in unmistakable language:
The simple fact that they (person who have committed crime within a state) are not within the
state to answer its criminal process when required renders them, in legal intendment, fugitives
from justice.
THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R. NO. 112889, THE
MERE FACT THAT THERE ARE PENDING CHARGES IN THE UNITED STATES AND THAT
PETITIONER RODRIGUEZ IS IN THE PHILIPPINES MAKE PETITIONER A 'FUGITIVE FROM
JUSTICE.'
From the foregoing discussions, the determination of whether or not Rodriguez is a fugitive from
justice hinges on whether or not Rodriguez' evidence shall be measured against the two
instances mentioned in the main opinion, or is to be expanded as to include other situations
alluded to by the foreign jurisprudence cited by the Court. In fact, the spirited legal fray
between the parties in this case focused on each camp's attempt to construe the Court's
definition so as to fit or to exclude petitioner within the definition of a 'fugitive from justice'.
Considering, therefore, the equally valid yet different interpretations resulting from the Supreme
Court decision in G.R. No. 112889, the Commission deems it most conformable to said decision
to evaluate the evidence in light of the varied constructions open to it and to respectfully submit
the final determination of the case to the Honorable Supreme Court as the final interpreter of
the law."
The instant petition dwells on that nagging issue of whether Rodriguez is a "fugitive from
justice", the determination of which, as we have directed the COMELEC on two (2) occasions (in
the MARQUEZ Decision and in the Court's October 24, 1995 Resolution), must conform to how
such term has been defined by the Court in the MARQUEZ Decision. To reiterate, a "fugitive
from justice":
". . . includes not only those who flee after conviction to avoid punishment but likewise who,
after being charged, flee to avoid prosecution."
The definition thus indicates that the intent to evade is the compelling factor that animates
one's flight from a particular jurisdiction. And obviously, there can only be an intent to evade
prosecution or punishment when there is knowledge by the fleeing subject of an already
instituted indictment, or of a promulgated judgment of conviction.
Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the
Philippines from the US on June 25, 1985, as per certifications issued by the Bureau of
Immigration dated April 27 3 and June 26 of 1995, 4 preceded the filing of the felony complaint
in the Los Angeles Court on November 12, 1985 and of the issuance on even date of the arrest
warrant by that same foreign court, by almost five (5) months. It was clearly impossible for
Rodriguez to have known about such felony complaint and arrest warrant at the time he left the
US, as there was in fact no complaint and arrest warrant much less conviction to speak of
yet at such time. What prosecution or punishment then was Rodriguez deliberately running
away from with his departure from the US? The very essence of being a "fugitive from justice"
under the MARQUEZ Decision definition, is just nowhere to be found in the circumstances of
Rodriguez.
With that, the Court gives due credit to the COMELEC in having made the. same analysis in its ".
. . COMMISSION'S EVALUATION". There are, in fact, other observations consistent with such
analysis made by the poll body that are equally formidable so as to merit their adoption as part
of this decision, to wit:

"It is acknowledged that there was an attempt by private respondent to show Rodriguez' intent
to evade the law. This was done by offering for admission a voluminous copy of an investigation
report (Exhibits I to I-17 and J to J-87 inclusive) on the alleged crimes committed which led to
the filing of the charges against petitioner. It was offered for the sole purpose of establishing
the fact that it was impossible for petitioner not to have known of said investigation due to its
magnitude. Unfortunately, such conclusion misleads because investigations of this nature, no
matter how extensive or prolonged, are shrouded with utmost secrecy to afford law enforcers
the advantage of surprise and effect the arrest of those who would be charged. Otherwise, the
indiscreet conduct of the investigation would be nothing short of a well-publicized
announcement to the perpetrators of the imminent filing of charges against them. And having
been forewarned, every effort to sabotage the investigation may be resorted to by its intended
objects. But if private respondent's attempt to show Rodriguez' intent to evade the law at the
time he left the United States has any legal consequence at all, it will be nothing more than
proof that even private respondent accepts that intent to evade the law is a material element in
the definition of a fugitive.
"The circumstantial fact that it was seventeen (17) days after Rodriguez' departure that charges
against him were filed cannot overturn the presumption of good faith in his favor. The same
suggests nothing more than the sequence of events which transpired. A subjective fact as that
of petitioner's purpose cannot be inferred from the objective data at hand in the absence of
further proof to substantiate such claim. In fact, the evidence of petitioner Rodriguez sufficiently
proves that his compulsion to return to the Philippines was due to his desire to join and
participate vigorously in the political campaigns against former President Ferdinand E. Marcos.
For indeed, not long after petitioner's arrival in the country, the upheaval wrought by the
political forces and the avalanche of events which occurred resulted in one of the more colorful
events in Philippine history. The EDSA Revolution led to the ouster of former Pres. Marcos and
precipitated changes in the political climate. And being a figure in these developments,
petitioner Rodriguez began serving his home province as OIC-Board Member of the
Sangguniang Panlalawigan ng Quezon in 1986. Then, he was elected Governor in 1988 and
continues to be involved in politics in the same capacity as re-elected Governor in 1992 and the
disputed re-election in 1995. Altogether, these landmark dates hem in for petitioner a period of
relentless, intensive and extensive activity of varied political campaigns first against the
Marcos government, then for the governorship. And serving the people of Quezon province as
such, the position entails absolute dedication of one's time to the demands of the office.
"Having established petitioner's lack of knowledge of the charges to be filed against him at the
time he left the United States, it becomes immaterial under such construction to determine the
exact time when he was made aware thereof. While the law, as interpreted by the Supreme
Court, does not countenance flight from justice in the instance that a person flees the
jurisdiction of another state after charges against him or a warrant for his arrest was issued or
even in view of the imminent filing and issuance of the same, petitioner's plight is altogether a
different situation. When, in good faith, a person leaves the territory of a state not his own,
homeward bound, and learns subsequently of charges filed against him while in the relative
peace and service of his own country, the fact that he does not subject himself to the
jurisdiction of the former state does not qualify him outright as a fugitive from justice.
"The severity of the law construed in the manner as to require of a person that he subject
himself to the jurisdiction of another state while already in his country or else be disqualified
from office, is more apparent when applied in petitioner's case. The criminal process of the
United States extends only within its territorial jurisdiction. That petitioner has already left said
country when the latter sought to subject him to its criminal process is hardly petitioner's fault.
In the absence of an intent to evade the laws of the United States, petitioner had every right to
depart therefrom at the precise time that he did and to return to the Philippines. No justifiable
reason existed to curtail or fetter petitioner's exercise of his right to leave the United States and
return home. Hence, sustaining the contrary proposition would be to unduly burden and punish
petitioner for exercising a right as he cannot be faulted for the circumstances that brought him
within Philippine territory at the time he was sought to be placed under arrest and to answer for
charges filed against him.

"Granting, as the evidence warrants, that petitioner Rodriguez came to know of the charges only
later, and under his circumstances, is there a law that requires petitioner to travel to the United
States and subject himself to the monetary burden and tedious process of defending himself
before the country's courts?
"It must be noted that moral uprightness is not a standard too far-reaching as to demand of
political candidate the performance of duties and obligations that are supererogatory in nature.
We do not dispute that an alleged 'fugitive from justice' must perform acts in order not to be so
categorized. Clearly, a person who is aware of the imminent filing of charges against him or of
the same already filed in connection with acts he committed in the jurisdiction of a particular
state, is under an obligation not to flee said place of commission. However, as in petitioner's
case, his departure from the United States may not place him under a similar obligation. His
subsequent knowledge while in the Philippines and non-submission to the jurisdiction of the
former country does not operate to label petitioner automatically a fugitive from justice. As he
was a public officer appointed and elected immediately after his return to the country, petitioner
Rodriguez had every reason to devote utmost priority to the service of his office. He could not
have gone back to the United States in the middle of his term nor could he have traveled
intermittently thereto without jeopardizing the interest of the public he serves. To require that of
petitioner would be to put him in a paradoxical quandary where he is compelled to violate the
very functions of his office."
However, Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as earlier quoted)
seem to urge the Court to re-define "fugitive from justice". They espouse the broader concept of
the term as culled from foreign authorities (mainly of U.S. vintage) cited in the MARQUEZ
Decision itself, i.e., that one becomes a "fugitive from justice" by the mere fact that he leaves
the jurisdiction where a charge is pending against him, regardless of whether or not the charge
has already been filed at the time of his flight.
Suffice it to say that the "law of the case" doctrine forbids the Court to craft an expanded redefinition of "fugitive from justice" (which is at variance with the MARQUEZ Decision) and
proceed therefrom in resolving the instant petition. The various definitions of that doctrine have
been laid down in People v. Pinuila, 103 Phil. 992, 999, to wit:
"'Law of the case' has been defined as the opinion delivered on a former appeal. More
specifically, it means that whatever is once irrevocably established as the controlling legal rule
or decision between the same parties in the same case continues to be the law of the case,
whether correct on general principles or not, so long as the facts on which such decision was
predicated continue to be the facts of the case before the court." (21 C.J.S. 330)
"It may be stated as a rule of general application that, where the evidence on a second or
succeeding appeal is substantially the same as that on the first or preceding appeal, all matters,
questions, points, or issues adjudicated on the prior appeal are the law of the case on all
subsequent appeals and will not be considered or readjudicated therein." (5 C.J.S. 1267)
"In accordance with the general rule stated in Section 1821, where, after a definite
determination, the court has remanded the cause for further action below, it will refuse to
examine question other than those arising subsequently to such determination and remand, or
other than the propriety of the compliance with its mandate; and if the court below has
proceeded in substantial conformity to the directions of the appellate court, its action will not be
questioned on a second appeal.
"As a general rule a decision on a prior appeal of the same case is held to be the law of the case
whether that decision is right or wrong, the remedy of the party deeming himself aggrieved
being to seek a rehearing." (5 C.J.S. 1276-77).
"Questions necessarily involved in the decision on a former appeal will be regarded as the law of
the case on a subsequent appeal, although the questions are not expressly treated in the
opinion of the court, as the presumption is that all the facts in the case bearing on the point
decided have received due consideration whether all or none of them are mentioned in the
opinion." (5 C.J.S. 1286-87).
To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not Rodriguez is
a "fugitive from justice") are involved in the MARQUEZ Decision and the instant petition. The
MARQUEZ Decision was an appeal from EPC No. 92-28 (the Marquez' quo warranto petition

before the COMELEC). The instant petition is also an appeal from EPC No. 92-28 although the
COMELEC resolved the latter jointly with SPA No. 95-089 (Marquez' petition for the
disqualification of Rodriguez). Therefore, what was irrevocably established as the controlling
legal rule in the MARQUEZ Decision must govern the instant petition. And we specifically refer to
the concept of "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision
which highlights the significance of an intent to evade but which Marquez and the COMELEC,
with their proposed expanded definition, seem to trivialize.
Besides, to re-define "fugitive from justice" would only foment instability in our jurisprudence
when hardly has the ink dried in the MARQUEZ Decision.
To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility
of a person seeking to run for any elective local position under Section 40(e) of the Local
Government Code, should be understood according to the definition given in the MARQUEZ
Decision, to wit:
"A 'fugitive from justice' includes not only those who flee after conviction to avoid punishment
but likewise those who, after being charged, flee to avoid prosecution." (Emphasis ours.)"
Intent to evade on the part of a candidate must therefore be established by proof that there has
already been a conviction or at least, a charge has already been filed, at the time of flight. Not
being a "fugitive from justice" under this definition, Rodriguez cannot be denied the Quezon
Province gubernatorial post.
WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the assailed
Resolutions of the COMELEC dated May 7, 1995 (Consolidated Resolution), May 11, 1995
(Resolution suspending Rodriguez' proclamation) and June 23, 1995 (Resolution nullifying
Rodriguez' proclamation and ordering the Quezon Province Provincial Board of Canvassers to
explain why they should not be cited in contempt) are SET ASIDE.
SO ORDERED.