720

SUPREME COURT REPORTS ANNOTATED

Failure of Elections

ANNOTATION
FAILURE OF ELECTIONS
By
*
IGMIDIO C. LAT
1. Introduction, p. 720
2. PreConditions for Failure of Elections, p. 721
3. Comelecs Jurisdiction, p. 722
4. Special Elections, p. 724
5. Certiorari, p. 725
6. Plurality of Valid Votes Cast, p. 729
7. Nature of Controversy, p. 729
8. Conclusion, p. 730

1. Introduction
This petition for certiorari under Rule 65 of the 1997 Rules
of Civil Procedure and the subject of the annotation is the
case of petitioner Zaipal D. Benito against the Commission
on Elections (COMELEC for brevity), et al., denominated
as G.R. No. 134913 and promulgated on January 19, 2001
thru Honorable Associate Justice Sabino R. De Leon, Jr.
Case at bench sought the reversal of COMELECs En Banc
Resolution dated August 10, 1998 which dismissed a
petition to declare a failure of elections and to call for a
special election in several precincts in the Municipality of
Calanogas, Lanao del Sur docketed as SPA No. 98333.
Once again, this decision gives us settled rules and
doctrines anent our election laws and that what had been
settled must not be disturbed.

_______________
*

Member, Philippine Trial Lawyers Association, Inc.

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2. PreConditions for Failure of Elections

The conditionalities before a failure of election can be
declared as cited in Hassan vs. Comelec, 264 SCRA 125,
131 (1996) and mentioned in this case subject of
annotation are, viz.: 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.
Further said the High Court, the cause of such failure
may arise before or after the casting of votes or on the day
of the election.
However, in the subsequent cases Canicosa vs. Comelec,
282 SCRA 512 (1997), and Sison vs. Comelec, 304 SCRA
170 (1999), three (3) instances were mentioned, to wit:
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.
The additional scenario being contemplated in these cases
of Canicosa and Sison vs. Comelec is the suspension of the

election in any polling place brought about by force

majeure, fraud, etc. Suspension can be that some voters
had cast their votes already and thereafter suspended
precipitated by the mentioned causes either in the morning
or afternoon prior to the closing of the voting.
Section 6 of the Omnibus Election Code (Batas
Pambansa Blg. 881) states what failure of election means.
It states that 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
722

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SUPREME COURT REPORTS ANNOTATED

Failure of Elections

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.
What is more, want or 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
are proper grounds in an election contest and not in a
petition to declare a failure of election and to nullify a
proclamation. (Borja, Jr. vs. Comelec, 260 SCRA 604
[1996]).
In the same vein, when the names of the registered
voters in various precincts did not appear in their
respective list of voters, the correct remedy is not filing a
petition for declaration of failure of election. (Canicosa vs.
Comelec, 282 SCRA 512 [1997]).

Also, it is the ministerial duty of the trial court to order

the reopening of the ballot boxes and the examination and
counting of the ballots deposited when there is an
averment in an election contest apropos perusal, counting
or examination of ballots as evidence. (Manahan vs.
Bernardo, 283 SCRA 505 [1997]).
3. Jurisdiction of COMELEC
One of the Constitutional Commissions under the 1987
Constitution of the Philippines is the Commission on
Elections. The other two (2) are the Civil Service
Commission and the Commission on Audit. The
composition, powers and duties of the Comelec are
delineated in Article IX (Constitutional Commissions) of
the Philippine Constitution.
Under Section 2 (paragraph 1) of the same Constitution,
it states that the COMELEC has the power to administer
and enforce all laws and regulations relative to the conduct
of an election, plebi
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723

Failure of Elections

scite, initiative, referendum, and recall. It has also the

power to exercise exclusive original jurisdiction over all
contests relating to the elections, returns, and
qualifications, 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 in
election contests involving elective municipal and barangay
offices shall be final, executory, and not appealable.
(Section 2, paragraph 2, Article DC, 1987 Philippine
Constitution).
Anent this case subject of annotation, the COMELEC
en banc which has the exclusive power to postpone, to
declare a failure of election, or to call a special election.
(Republic Act No. 7166, Section 4) Further, said the FINAL
ARBITER OF THE LAND, petitioner should not ask 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. Same
pronouncement was had by the High Court in
Pangandaman vs. Commission on Elections, 319 SCRA 283
(1999), where the very same Omnibus Order dated July 14,
1998 relied upon by the petitioner was upheld.
Petitioners 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 us.
No less than the petitioner himself concedes that there
was total failure of elections in twelve (12) municipalities
and partial failure of elections in eleven. 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 the 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 the area. Absent any
showing of grave abuse of discretion, the findings of fact of
the COMELEC or any administrative
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SUPREME COURT REPORTS ANNOTATED

Failure of Elections

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.
In dumping the petition for certiorari for lack of merit,
the Highest Tribunal of the Land said that there is no
reason to disturb the resolution of the COMELEC under
review.
Relative to declaration of failure of elections, it was held
in Loong vs. COMELEC, 257 SCRA 1 (1996), that the
COMELEC may conduct technical examination of election
documents and compare and analyze voters signatures and
fingerprints in order to determine whether or not the
elections had indeed been free, honest and clean.
In Balindong vs. Comelec, 260 SCRA 494 (1996), the

Supreme Court did not declare a failure of elections due to

the transfer of polling places unless the number of uncast
votes will affect the result of the election. When the
election is not held, is suspended or results in a failure to
elect, the Comelec can call for the holding or continuation
of election by reason of failure of election. Also, while fraud
is a ground to declare a failure of election, the commission
of fraud must be such that it prevented or suspended the
holding of an election including the preparation and
transmission of the election returns. (Typoco, Jr. vs.
Comelec, 319 SCRA 498 [1999]).
Amplifying its powers, the Highest Tribunal of the Land
stated in Grego vs. Comelec, 274 SCRA 481 (1997), that as
an administrative body and a specialized constitutional
body charged with the enforcement and administration of
all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum, and recall, has
more than enough expertise in its field that its findings or
conclusions are generally respected and even given finality.
4. Special Elections
The plea for a special election is addressed to the Comelec
and not to the Supreme Court since the grounds for failure
of elections involve question of fact. (Loong vs. Comelec, 305
SCRA 832 [1999]).
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In Pangandaman vs. Comelec, 319 SCRA 283 (1999), the

parameters or guideposts to be followed in holding special
election were laid down, to wit:
a) It should be reasonably close to the date of the
election not held, suspended or which resulted in
the failure to elect and
b) 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.
In the case being annotated, petitioner and private

respondent Ibrahim Pagayawan were two (2) of the eight

candidates aspiring for the position of municipal mayor in
Calanogas, Lanao del Sur during the May 11, 1998
elections.
Section 6 of the Omnibus Election Code mentions the
requirements for the holding of special elections, namely a)
there is a failure of election and b) such failure would affect
the results of the election. The prohibitions against the
holding of special elections within certain periods prior to
the next election for vacancies in national offices not
applicable to special elections which may be called for
failure of election under Section 6 of the Omnibus Election
Code. (Lucero vs. Comelec, 234 SCRA 280 [1994]).
5. Certiorari
A writ issued to modify or annul the proceedings of any
tribunal, board or officer exercising judicial or quasi
judicial functions which acted without or in excess of its or
his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no
appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law. A person aggrieved thereby may file
a verified petition in the proper court alleging the facts
with certainty and praying that judgment be rendered
annulling or modifying the proceedings of such tribunal,
board or officer, and granting such incidental reliefs as law
and justice may require. The petition shall be accompanied
by a certified true copy of the judgment, order or resolution
subject thereof, copies of all pleadings and documents
relevant and pertinent thereto, and a sworn certifi
726

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SUPREME COURT REPORTS ANNOTATED

Failure of Elections

cation of nonforum shopping as provided in the third

paragraph of Section 3, Rule 46 (Section 1, Rule 65, 1997
Rules of Civil Procedure). Issues of want or excess of
jurisdiction and grave abuse of discretion are the sole office
of this writ of certiorari under Rule 65 and will lie only if
there is no plain, speedy and adequate remedy in the
ordinary course of law.

On the other side of the spectrum, there is also appeal

by certiorari to the Supreme Court under Section I, Rule 45
of the same Rules of Court. The petition shall raise only
questions of law which must be distinctly setforth.
In filing the Petition for Certiorari before the Supreme
Court, Padre Faura, Manila the requirements are, viz.:
1. Original and Eighteen (18) copies of the Petition
2. Affidavit of Service
3. Registry Receipts with Explanation (Applicable
only if service is not personal)
4. Nonforum Shopping Certificate
5. Verified Statement of material dates
6. Certified true copy/ies of questioned decision,
resolution or order
7. Verification and
8. Payment legal fees (P920.00 or P1,122.00) (No
longer applicable if payment was made at the time
of filing of motion for extension).
In the same vein, a motion for extension can be filed and
the requirements are, as follows:
a) Original and Eighteen (18) copies
b) Affidavit of Service
c) Registry Receipts with Explanation (Applicative
only if service is not personal) and
d) Payment of legal fees (P920.00 or P1,122.00).
The time for filing the petition under Rule 45 is within
fifteen (15) days from notice of the judgment or final order
or resolution appealed from, or of the denial of the
petitioners motion for new trial or reconsideration filed in
due time after notice of judgment.
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Failure of Elections

Section 2, Rule 45, 1997 Rules of Civil Procedure as

Amended, effective July 1, 1997 per resolution of the
Supreme Court in Bar Matter No. 803 adopted in Baguio

City on April 8, 1997, further provides that on motion duly

filed and served, with full payment of the docket and other
lawful fees and the deposit for costs before the expiration of
the reglementary period, the Supreme Court may for
justifiable reason grant an extension of thirty (30) days
only within which to file the petition.
Under Section 4, Rule 65, the petition may be filed not
later than 60 days from notice of the judgment, order or
resolution sought to be assailed in the Supreme Court or if
relates to the acts or omissions of a lower court or of a
corporation, board, officer or person, in the Regional Trial
Court exercising jurisdiction over the territorial area as
defined by the Supreme Court. It may also be in the Court
of Appeals whether or not the same is in aid of its appellate
jurisdiction, or in the Sandiganbayan if it is in aid of its
jurisdiction.
If it involves the acts or omissions of a quasijudicial
agency, and unless otherwise provided by law or these
Rules, the petition shall be filed in and cognizable only by
the Court of Appeals.
Relative to this case subject of his annotation, the High
Court stated that we are not sufficiently persuaded that
the public respondent COMELEC gravely abused its
discretion in denying BENITOs 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 the law. (Cuison vs. Court of Appeals,
289 SCRA 159 [1998]). Furthermore, it is not sufficient
that a tribunal, in the exercise of its power, abused its
discretion such abuse must be grave. (Taada vs. Angara,
272 SCRA 18 (1997) Republic vs. Villarama, 278 SCRA
736 [1997]).
At the outset, herein petitioner raises issues foreign to
the remedy he seeks. He asseverates that a failure of
elections must be
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Failure of Elections

declared in the precincts in question since the voting was

interrupted by the sudden and threatening arrival of
armed goons of a rival candidate. He emphatically 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.
Contrariwise, voting resumed peacefully at around one
oclock in the afternoon on election day or after the
departure of the armed men. Clearly, therefore, whether or
not there was a resumption of voting is essentially a
question of fact which is not a proper ambit of inquiry in
this petition for certiorari under Rule 65, said the Highest
Court of the Land.
Parenthetically speaking, it is improper to pass upon the
authenticity of the contradictory affidavits supposedly
executed by the members of the board of election inspectors
of the affected precincts. Herein parties seek to introduce
into evidence executed by the same persons whose
recitations are contradictory. Regarding incident reports,
evaluation of evidentiary matters is outside the scope of a
writ of certiorari. (Cf. Building Care Corporation vs. NLRC,
268 SCRA 666 (1997) Manila Fashions, Inc. vs. NLRC, 264
SCRA 104 [1996]). The High Court found also that the
COMELEC did not gravely abuse its discretion in refusing
to give credit to the version espoused by both parties. In
fine, petitioner maintains that the genuineness of the
affidavits appended to the amended petition he filed before
the COMELEC is purportedly confirmed by the second set
of affidavits which, in effect repudiating those relied upon
by the private respondent in his answer. In this regard to
accord credence or weight to this rigmarole of sworn
statements just as the COMELEC was hesitant to treat
petitioners claim as gospel truth.
Corollarily, the same posture was taken by the Supreme
Court in Domingo, Jr. vs. COMELEC, 313 SCRA 311
(1999), when it emphatically posited that it may not review
the factual findings of COMELEC nor substitute its own
findings on the sufficiency of evidence about proof of grave
abuse of discretion, arbitrariness, fraud or error of law in
the assailed Resolution.
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6. Plurality of Valid Votes Cast

Herein petitioner equates failure of election to the low
percentage of votes cast visvis the number of registered
voters in the subject election precincts. However, there 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, respect must be accorded it. Also,
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, irrespective of the
actual number of ballots cast. Hence, even if less than 25%
of the electorate in the questioned precincts cast their
votes, the same must still be respected, x x x (Mitmug vs.
Comelec, 230 SCRA 54, 61 [1994]).
7. Nature of Controversy
In Borja, Jr. vs. Comelec, 260 SCRA 604 (1996), the
Highest Tribunal ruled that a petition to declare a failure
of election is neither a preproclamation controversy nor an
election case.
By definition, preproclamation refers to any question
pertaining to or affecting the proceedings of the board of
canvassers which are raisable by any candidate or by any
registered political party or coalition of political parties
before the board or directly with the Commission, or any
matter raised under Sections 233, 234, 235 and 236 in
relation to the preparation, transmission, receipt, custody
and appreciation of the election returns. Preproclamation
controversy limits itself to issues enumerated under
Section 243 of the Omnibus Election Code and the
enumeration thereunder is exclusive and restrictive.
Likewise, the Comelec is confined to an examination of the
election returns and investigation of election irregularities
is beyond its periphery of competence. A technical
examination of the handwriting and fingerprints in the
voters affidavits and voting list is not allowed in a pre
proclamation controversy. Moreover, lawyers handling

election cases should immediately choose another timely

remedy, i.e., petition to annul the election results or to
declare a failure of elections or even an election protest so
that election irregularities may be fully adjudicated
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SUPREME COURT REPORTS ANNOTATED

Failure of Elections

by the competent tribunal. (Matalam vs. Comelec, 271

SCRA 733 [1997]).
Preproclamation cases rendered moot and academic
when elected officials started their terms. (Verceles vs.
Comelec, 214 SCRA 159 [1992]).
It is a matter of public policy that preproclamation
controversies should be threshed out in summary
proceedings. (Alfonso vs. Comelec, 232 SCRA 777 [1994]).
In Patoray vs. Comelec, 21 A SCRA 470 (1997), issues
pertaining to the appreciation of ballots cannot be raised in
a preproclamation controversy.
Preproclamation controversy, being summary in nature,
can be resolved on the basis of evidence and arguments
submitted by the parties within the period allowed by law.
(Cordero vs. Comelec, 310 SCRA 118 [1999]). And in
Gatchalian vs. CA, 245 SCRA 208 (1995), the filing of pre
proclamation case interrupts the period within which to file
an election protest or quo warranto.
8. Conclusion
Resort to judicial review of the decision of the Comelec by
way of special civil action for certiorari under Rule 65 is
confined only to want or excess of jurisdiction and grave
abuse of discretion on the part of the Comelec. As
enunciated in a catena of cases unless the Comelec has
shown to have committed grave abuse of discretion, its
decisions and rulings will not be disturbed by the Supreme
Court. Not every erroneous conclusion of law or of fact is
abuse of discretion. Absent any showing that the findings
complained of are devoid of support in the record or clearly
erroneous, the Comelecs ruling or decision must be
respected. It is humbly submitted that Comelecs
knowledge taken from actual experience and contacts with

political strategists is in a proper position to decide

complex political questions.
Parameters or standards or causes, i.e., force majeure,
violence, terrorism, fraud or other analogous causes must
be clearly delineated. Technical objections relative to
election contests must not outweigh the will of the people
in the latters choice of public officials. Sovereignty resides
in the people and all government authority emanates from
them. Put another way, suffrage is the vehicle by which the
people express their sovereign judgment.
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Bears repeating that the Comelec is the enforcer and

administrator of the election laws and its powers are
clearly stated in black and white in Section 2(c), Article EX
of the 1987 Constitution of the Philippines. In aid of its
appellate jurisdiction, the Comelec can issue extraordinary
writs of certiorari, prohibition and mandamus.
(Relampagos vs. Cumba, 243 SCRA 690 [1995]). It is only
within the periphery of competence of the Comelec to
determine the genuineness of the handwriting on the
ballots by examination of the ballots themselves without
the need of calling handwriting experts. (Erni vs. Comelec,
243 SCRA 706 [1995]).
Case subject of this annotation is petition to declare a
failure of elections and to call for special elections involving
two (2) of the eight candidates vying for the position of
mayor during the May 11, 1998 election. It does not
mention annulment of election returns. In the latter case,
the requirements for the annulment of election returns by
the
Electoral
Tribunal
grounded
on
terrorism,
irregularities and fraud are, viz.:
a) the votes must be shown to have been affected or vitiated by
such fraud, terrorism or irregularities and b) that more than 50%
of the total number of votes in the precincts were involved.
(Arroyo vs. House of Representatives Electoral Tribunal, 246
SCRA 384 [1995]).

Withal, every losing candidate not supported by popular

will must learn to accept defeat and should not engage in

dirty politics and long court battles. It is high time that

election results must be computerized nationwide and
results be had in a weeks time like in other countries.
o0o
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