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PENERA VS COMELEC 21
I. Elections
(iii) Construction/Limitations
Duremdes vs Comelec
178 SCRA 746 26
III. Initiative
IV. Referendum
(i) RA6735
Lambino vs Comelec
505 SCRA 160 31
CALLEJO, SR.,
AZCUNA,
TINGA, Thereafter, Sumague requested for a recomputation of the
THE COMMISSION ON CHICO-NAZARIO, and [4]
ELECTIONS, THE MUNICIPAL GARCIA, JJ. votes received by him and Suliguin in a Letter dated May
BOARD OF CANVASSERS OF 15, 2004, it appearing that there was a mistake in adding
NAGCARLAN, LAGUNA, and Promulgated:
ECELSON C. SUMAGUE, the figures in the Certificate of Canvass of votes. He pointed
Respondents. March 23, 2006 out that he officially garnered 6,647 votes, as against
petitioners 6,605 votes.
x---------------------------------------------
-----x
The MBOC summoned petitioner and respondent Sumague
DECISION to a conference. Upon review, the MBOC discovered that it
had, indeed, failed to credit respondent Sumague his 200
CALLEJO, SR., J.: votes from Precincts 1A to 19A, and that with his 6,647
votes, he should have been proclaimed as the 8th
Sangguniang Bayan member of Nagcarlan, Laguna, instead
This is a Petition for Certiorari under Rule 65 of the Revised
[1] of petitioner Suliguin.
Rules of Court seeking to reverse the Resolution of the
Commission on Elections (Comelec) En Banc in SPC No. 04-
On May 26, 2004, the MBOC filed before the Comelec a
209 dated November 18, 2004 which denied
Petition to Correct Entries Made in the Statement of Votes
petitioner Margarito Suliguins motion for reconsideration of
[2] for Councilor. The error was attributed to extreme physical
the July 21, 2004 Resolution of the Comelecs First
and mental fatigue which the members of the board
Division. TheComelec nullified his proclamation as the 8th
experienced during the election and the canvassing of
Sangguniang Bayan member of Nagcarlan, Laguna.
votes.
4.2 THE PETITION TO CORRECT ENTRIES In an election case, the Comelec is mandated to
MADE IN THE STATEMENT OF VOTES FOR ascertain by all means within its command who the real
COUNCILOR, NAGCARLAN, LAGUNA WAS
FILED BY THE MUNICIPAL BOARD OF candidate elected by the electorate is. The Court frowns
CANVASSERS IN DEFIANCE OF EXISTING upon any interpretation of the law or the rules that would
COMELEC RULES AND REGULATIONS AND
WAS OBVIOUSLY BIAS IN FAVOR OF hinder in any way not only the free and intelligent casting of
PRIVATE RESPONDENT CANDICATE the votes in an election but also the correct ascertainment
[8]
ECELSON C. SUMAGUE. [11]
of the results. In the case at bar, the simple
[9]
mathematical procedure of adding the total number of
Petitioner argues that pursuant to Sections 35, 36(c) and
[10]
votes garnered by respondent Sumague as appearing in the
(f) of Comelec Resolution No. 6669 (General Instructions
Statement of Votes submitted to the Comelec would readily
for Municipal/City/Provincial and District Boards of
reveal the result that he has forty-two (42) votes more than
Canvassers in Connection with the May 10, 2004 Elections),
petitioner. Such result would, in effect, dislodge petitioner
the MBOC should not have entertained the letter-request
from said post, and entitle respondent Sumague to occupy
of respondent Sumague as it was filed only on May 17,
the eighth and last seat of the Sangguniang Bayan of
2004, or four (4) days after the canvassing of votes was
Nagcarlan, Laguna. Petitioner himself never disputed the
terminated and after he (petitioner) was proclaimed winner
discrepancy in the total number of votes garnered by
as the 8th Sangguniang Bayan member of Nagcarlan,
respondent Sumague, and instead questioned the
Laguna.Furthermore, respondent Sumague never entered
any objection during the proceedings of the canvassing of
What is involved in the present petition is the correction of A careful perusal of the records
show that there was, indeed, an honest
a manifest error in reflecting the actual total number of error committed by petitioner MBOC in
votes for a particular candidate. Section 32, subparagraph 5 the computation of votes for candidate
Ecelson Sumague which resulted in the
of Comelec Resolution No. 6669 includes mistake in the
erroneous proclamation of respondent as
addition of the votes of any candidate as a manifest one of the winners for the said office.
[16] [17]
error. As correctly cited by the Comelec, a manifest
A manifest
clerical error is one that is visible to the eye or obvious to clerical error is one that
is visible to the eye or
the understanding and is apparent from the papers to the
obvious to the
eye of the appraiser and collector, and does not include an understanding and is
error which may, by evidence dehors the record be shown apparent from the
papers to the eye of the
to have been committed. appraiser and collector,
and does not include an
error which may, by
The MBOC sought relief from the Comelec to reflect the evidence dehors the
true winner elected by the voting public, to occupy the record be shown to
have been committed.
eighth position as member of the Sangguniang Bayan of
Nagcarlan, Laguna. In Carlos v. Angeles,
[18]
the Court had The contention of respondent
that the instant petition should be
the occasion to declare: dismissed for being filed out of time
cannot be given merit because his
In this jurisdiction, an election means the proclamation was flawed. It must be
choice or selection of candidates to public stressed that a proclamation based on
office by popular vote through the use of faulty tabulation of votes is flawed, and a
the ballot, and the elected officials of petition to correct errors in tabulation
which are determined through the will of under Section 7, Rule 27 of the COMELEC
Rules of Procedure, even if filed out of
ELECTION LAWS 2015 4
time, may be considered, so as not to does not constitute a clear violation of his
thwart the proper determination and right. In the first place, there is no valid
resolution of the case on substantial proclamation to speak of. He was not
grounds and to prevent a stamp of validity elected by a majority or plurality of
on a palpably void proclamation based on voters. His alleged right was based on an
an erroneous tabulation of votes. erroneous proclamation. By any
mathematical formulation, the
Furthermore, where the respondent cannot be construed to have
proclamation is flawed because it was obtained such plurality of votes;
based on a clerical error or mathematical otherwise, it would be sheer absurdity to
mistake in the addition of votes and not proclaim a repudiated candidate as the
through the legitimate will of the choice of the voters. Where a
electorate, there can be no valid proclamation is null and void, the
proclamation to speak of and the same proclamation is no proclamation at all and
can be challenged even after the the proclaimed candidates assumption of
candidate has assumed office. office cannot deprive the COMELEC of the
power to make such declaration a
There is no showing that nullity. Respondent also cannot claim that
petitioner MBOC acted with manifest bias he was denied of his right to due process
and committed a grave abuse of of law since he was given the opportunity
discretion. Grave abuse of discretion to be heard. He was duly notified by
implies such capricious and whimsical petitioner MBOC of the erroneous
exercise of judgment as is equivalent to computation which resulted in his
lack of jurisdiction, or where the power is proclamation and was afforded the
exercised in an arbitrary or despotic opportunity to be heard by this
manner by reason of passion or personal Commission.
hostility which must be so patent and
gross as to amount to an invasion of The COMELEC
positive duty or to a virtual refusal to exercises immediate
perform the duty enjoined or to act at all supervision and control
in contemplation of law. Petitioner MBOC over the members of
is merely doing its function that is the Boards of Election
mandated by law to canvass votes in the Inspectors and
election returns submitted to it in due Canvassers. Its statutory
form, adding or compiling the votes cast power of supervision
for each candidate as shown in the face of and control includes the
such returns and eventually proclaim the power to revise, reverse
winning candidates. Respondent or set aside the action
miserably failed to prove that petitioner of the boards, as well as
exhibited manifest bias thereby thwarting to do what boards
his chances of winning the last slot for should have done, even
Sangguniang Bayan Member. Absent a if questions relative
strong showing to the contrary, the court thereto have not been
must accept the presumption of regularity elevated to it by an
in the performance of official duty and aggrieved party, for
strong evidence is necessary to rebut this such power includes the
presumption. authority to
initiate motu proprio or
Likewise, it cannot be said that by itself steps or actions
petitioner MBOC violated the sanctity of that may be required
[20]
the ballots. Unlike the Board of Election pursuant to law.
Inspectors which counts the votes from
the precinct levels, the MBOC computes
the votes as appeared in the election Petitioner posits that the Comelecs reliance in the ruling of
returns. [21]
this Court in Bince, Jr. v. Commission on Elections is
Finally, a subsequent annulment misplaced since, unlike the present petition, petitioner
of the proclamation of the respondent
SO ORDERED.
Wherefore, in view of the On March 28, 2008, petitioner filed a Motion for
foregoing Protestant Francisco M. Langi, [9]
Reconsideration which the Comelec En Banc denied in the
Sr. having obtained the over all total votes
[10]
of 3,074 and the Protestees 3,068 total Resolution dated January 21, 2009, declaring that the
and final votes is declared the winner in
appeal was not perfected on time for non-payment of the
the Mayoralty contest in Motiong, Samar
with a plurality of (6) votes. Therefore the complete amount of appeal fee and for late payment as
proclamation on May 17, 2007 is hereby
well. The Comelec En Banc held that the Comelec did not
annulled and declared Francisco Langi, Sr.
y Maceren as the duly elected Mayor of acquire jurisdiction over the appeal because of the non-
Motiong, Samar. The winner is awarded payment of the appeal fee on time. Thus, the Comelec First
the amount of P 32,510 as actual damages
and no evidence aliunde for damages for Division correctly dismissed the appeal.
the court to award. xxx
advances another interpretation of the Comelec Rules that mistakes of petitioners counsel bind petitioner. He then
the RTC is under obligation to remit to the Comelec reiterates the cases where this Court held that the non-
the P2,000.00 representing the excess amount of payment or insufficiency of payment of filing fees is a valid
the P1,000.00 appeal fee.Thus, petitioner claims that he ground for the dismissal of the appeal and that the
must be deemed to have complied, in full or at least subsequent full payment thereof does not cure the
appeal fees.
We grant the petition.
Petitioner maintains that the alleged non-payment Section 3, Rule 22 (Appeals from Decisions of Courts in
of the correct appeal fee is not due to his own fault or Election Protest Cases) of the Comelec Rules of Procedure
negligence. He claims that the laws on appeals in election mandates that the notice of appeal must be filed within five
protest cases are not yet well-established, thus, he must (5) days after promulgation of the decision, thus:
SEC. 3. Notice of Appeal. Within five (5)
not be made to suffer for an oversight made in good days after promulgation of the decision of
faith. The Resolution No. 8486 of July 15, 2008 adopted by the court, the aggrieved party may file
with said court a notice of appeal, and
the Comelec to clarify the rules on compliance with the serve a copy thereof upon the attorney of
required appeal fees in election cases should not be applied record of the adverse party.
retroactively to the subject election protest.
SO ORDERED.
Petitioner and private respondent were candidates for the A. With regard to the votes of private respondent:
position of Sangguniang Panglungsod of Tuguegarao City in
Cagayan during the 2007 National and Local Elections. On
May 19, 2007, petitioner was proclaimed by the City Board Precinct SOVP ER No. Votes Votes Votes
of Canvassers (CBOC) as the 12th ranking and winning No. No. in in ER Affected
5
candidate for the said position with 10,981 votes. Private SOVP
6
respondent obtained 10,971 votes and was ranked no. 13. 1 69A/69B 15327 9602679 27 27 0
On May 25, 2007, private respondent filed with the 2 87A/87B 10543 9602699 13 13 0
COMELEC a petition for correction of manifest errors in the
Election Returns and Statement of Votes for 27 clustered 3 192A/192B 10531 9602801 20 19 -1
7
precincts and for the annulment of the proclamation of the
4 326A 10532 9602921 43 53 +10
affected winning candidate in Tuguegarao City. He alleged
that he was credited with less votes in several Statements TOTAL +9
of Votes by Precincts (SOVP) as compared with the tally of
his votes in the election returns ERs), whereas petitioner
was credited with more votes. Private respondent offered
Precinct No. SOVP ER No. Votes Votes Votes
evidence in the following nine precincts: 0035A/0036A,
No. in in ER Affected
0061A/0063A, 69A/69B, 87A/87B, 192A/192B, 264A/265A,
SOVP
324A/325B, 326A, and 328B.
1 35A/36A 10543 9602647 40 33 -7
Petitioner denied the allegations of private respondent and
argued that the petition should be dismissed for having 2 61A/63A 10539 9602672 55 50 -5
been filed late or six days after the proclamation of the 3 264A/265A 10528 9602871 39 29 -10
8
winning candidates. Meanwhile, the members of the CBOC
of Tuguegarao City denied private respondents allegations 4 324A/325A 10533 9602920 62 61 -1
of manifest errors in the SOVP; maintained that petitioner
5 328B 10527 9602924 33 32 -1
garnered more votes than those obtained by private
respondent; and that they have properly performed their TOTAL -24
9
duties and functions.
On December 20, 2007, the Second Division of the B. With regard to the votes of petitioner:
COMELEC issued the assailed Resolution, to wit:
SO ORDERED.
CARPIO, J.: Under the Decision, a candidate may already be liable for
premature campaigning after the filing of the certificate of
candidacy but even before the start of the campaign period.
We grant Rosalinda A. Peneras (Penera) motion for
From the filing of the certificate of candidacy, even long
reconsideration of this Courts Decision of 11 September
before the start of the campaign period, the Decision
2009 (Decision).
considers the partisan political acts of a person so filing a
certificate of candidacy "as the promotion of his/her
The assailed Decision dismissed Peneras petition and
election as a candidate." Thus, such person can be
affirmed the Resolution dated 30 July 2008 of the COMELEC
disqualified for premature campaigning for acts done
En Banc as well as the Resolution dated 24 July 2007 of the
before the start of the campaign period. In short, the
COMELEC Second Division. The Decision disqualified Penera
Decision considers a person who files a certificate of
from running for the office of Mayor in Sta. Monica, Surigao
candidacy already a "candidate" even before the start of
del Norte and declared that the Vice-Mayor should succeed
the campaign period. lawphil
Penera.
The assailed Decision is contrary to the clear intent and
In support of her motion for reconsideration, Penera
letter of the law.
submits the following arguments:
2
The Decision reverses Lanot v. COMELEC, which held that a
1. Penera was not yet a candidate at the time of
person who files a certificate of candidacy is not a
the incident under Section 11 of RA 8436 as
candidate until the start of the campaign period.
amended by Section 13 of RA 9369.
In Lanot, this Court explained:
Section 11 of Republic Act No. 8436 ("RA 8436") moved the To prevent the use of fake ballots, the Commission through
deadline for the filing of certificates of candidacy to 120 the Committee shall ensure that the serial number on the
days before election day. Thus, the original deadline was ballot stub shall be printed in magnetic ink that shall be
moved from 23 March 2004 to 2 January 2004, or 81 days easily detectable by inexpensive hardware and shall be
earlier. The crucial question is: did this change in the impossible to reproduce on a photocopying machine, and
deadline for filing the certificate of candidacy make one that identification marks, magnetic strips, bar codes and
who filed his certificate of candidacy before 2 January 2004 other technical and security markings, are provided on the
immediately liable for violation of Section 80 if he engaged ballot.
in election campaign or partisan political activities prior to
the start of the campaign period on 24 March 2004? The official ballots shall be printed and distributed to each
city/municipality at the rate of one (1) ballot for every
Section 11 of RA 8436 provides: registered voter with a provision of additional four (4)
ballots per precinct.
SECTION 11. Official Ballot. The Commission shall
prescribe the size and form of the official ballot which shall Under Section 11 of RA 8436, the only purpose for the early
contain the titles of the positions to be filled and/or the filing of certificates of candidacy is to give ample time for
propositions to be voted upon in an initiative, referendum the printing of official ballots. This is clear from the
or plebiscite. Under each position, the names of candidates following deliberations of the Bicameral Conference
shall be arranged alphabetically by surname and uniformly Committee:
printed using the same type size. A fixed space where the
chairman of the Board of Election Inspectors shall affix SENATOR GONZALES. Okay. Then, how about the campaign
his/her signature to authenticate the official ballot shall be period, would it be the same[,] uniform for local and
provided. national officials?
Both sides of the ballots may be used when necessary. THE CHAIRMAN (REP. TANJUATCO). Personally, I would
agree to retaining it at the present periods.
For this purpose, the deadline for the filing of certificate of
candidacy/petition for registration/ manifestation to SENATOR GONZALES. But the moment one files a certificate
participate in the election shall not be later than one of candidacy, hes already a candidate, and there are many
hundred twenty (120) days before the elections: Provided, prohibited acts on the part of candidate.
That, any elective official, whether national or local, running
for any office other than the one which he/she is holding in THE CHAIRMAN (REP. TANJUATCO). Unless we. . . .
a permanent capacity, except for president and vice-
president, shall be deemed resigned only upon the start of
SENATOR GONZALES. And you cannot say that the
the campaign period corresponding to the position for
campaign period has not yet began (sic).
which he/she is running: Provided, further, That, unlawful
acts or omissions applicable to a candidate shall take effect
THE CHAIRMAN (REP. TANJUATCO). If we dont provide that
upon the start of the aforesaid campaign period: Provided,
the filing of the certificate will not bring about ones being a
finally, That, for purposes of the May 11, 1998 elections,
candidate.
the deadline for filing of the certificate of candidacy for the
positions of President, Vice-President, Senators and
candidates under the party-list system as well as petitions
ELECTION LAWS 2015 22
SENATOR GONZALES. If thats a fact, the law cannot change that one who files to meet the early deadline "will still not
3
a fact. be considered as a candidate." (Emphasis in the original)
THE CHAIRMAN (REP. TANJUATCO). No, but if we can Lanot was decided on the ground that one who files a
provide that the filing of the certificate of candidacy will not certificate of candidacy is not a candidate until the start of
result in that official vacating his position, we can also the campaign period. This ground was based on the
provide that insofar he is concerned, election period or his deliberations of the legislators who explained the intent of
being a candidate will not yet commence. Because here, the the provisions of RA 8436, which laid the legal framework
reason why we are doing an early filing is to afford enough for an automated election system. There was no express
time to prepare this machine readable ballots. provision in the original RA 8436 stating that one who files a
certificate of candidacy is not a candidate until the start of
So, with the manifestations from the Commission on the campaign period.
Elections, Mr. Chairman, the House Panel will withdraw its
proposal and will agree to the 120-day period provided in When Congress amended RA 8436, Congress decided to
the Senate version. expressly incorporate the Lanot doctrine into law, realizing
that Lanot merely relied on the deliberations of Congress in
THE CHAIRMAN (SENATOR FERNAN). Thank you, Mr. holding that
Chairman.
The clear intention of Congress was to preserve the
xxxx "election periods as x x x fixed by existing law" prior to RA
8436 and that one who files to meet the early deadline "will
4
SENATOR GONZALES. How about prohibition against still not be considered as a candidate." (Emphasis supplied)
campaigning or doing partisan acts which apply
immediately upon being a candidate? Congress wanted to insure that no person filing a certificate
of candidacy under the early deadline required by the
THE CHAIRMAN (REP. TANJUATCO). Again, since the automated election system would be disqualified or
intention of this provision is just to afford the Comelec penalized for any partisan political act done before the start
enough time to print the ballots, this provision does not of the campaign period. Thus, in enacting RA 9369,
intend to change the campaign periods as presently, or Congress expressly wrote the Lanot doctrine into the
rather election periods as presently fixed by existing law. second sentence, third paragraph of the amended Section
15 of RA 8436, thus:
THE ACTING CHAIRMAN (SEN. FERNAN). So, it should be
subject to the other prohibition. xxx
THE CHAIRMAN (REP. TANJUATCO). Thats right. For this purpose, the Commission shall set the deadline for
the filing of certificate of candidacy/petition for
registration/manifestation to participate in the election.
THE ACTING CHAIRMAN (SEN. FERNAN). Okay.
Any person who files his certificate of candidacy within this
period shall only be considered as a candidate at the start
THE CHAIRMAN (REP. TANJUATCO). In other words,
of the campaign period for which he filed his certificate of
actually, there would be no conflict anymore because we
candidacy: Provided, That, unlawful acts or omissions
are talking about the 120-day period before election as the
applicable to a candidate shall take effect only upon the
last day of filing a certificate of candidacy, election period
start of the aforesaid campaign period: Provided, finally,
starts 120 days also. So that is election period already. But
That any person holding a public appointive office or
he will still not be considered as a candidate.
position, including active members of the armed forces, and
officers and employees in government-owned or -
Thus, because of the early deadline of 2 January 2004 for controlled corporations, shall be considered ipso facto
purposes of printing of official ballots, Eusebio filed his resigned from his/her office and must vacate the same at
certificate of candidacy on 29 December 2003. Congress, the start of the day of the filing of his/her certificate of
however, never intended the filing of a certificate of candidacy. (Boldfacing and underlining supplied)
candidacy before 2 January 2004 to make the person filing
to become immediately a "candidate" for purposes other
Congress elevated the Lanot doctrine into a statute by
than the printing of ballots. This legislative intent prevents
specifically inserting it as the second sentence of the third
the immediate application of Section 80 of the Omnibus
paragraph of the amended Section 15 of RA 8436, which
Election Code to those filing to meet the early deadline. The
cannot be annulled by this Court except on the sole ground
clear intention of Congress was to preserve the "election of its unconstitutionality. The Decision cannot reverse Lanot
periods as x x x fixed by existing law" prior to RA 8436 and
The law does not state, as the assailed Decision asserts, that
partisan political acts done by a candidate before the
campaign period are unlawful, but may be prosecuted only
upon the start of the campaign period. Neither does the law
state that partisan political acts done by a candidate before
the campaign period are temporarily lawful, but becomes
unlawful upon the start of the campaign period. This is
clearly not the language of the law. Besides, such a law as
ELECTION LAWS 2015 25
G.R. No. 86362-63 October 27, 1989 4. On 30 January 1988, PENAFLORIDA filed, also with the
COMELEC, a Petition seeking the annulment of election
RAMON D. DUREMDES, petitioner, returns and the suspension of the proclamation of any
vs. candidate, docketed as SPC Case No. 88-448 (Annex
COMMISSION ON ELECTIONS, PROVINCIAL BOARD OF "Q," Ibid., p. 96, Rollo).
CANVASSERS OF ILOILO, LAKAS NG BANSA and CIPRIANO
B. PENAFLORIDA, respondents. 5. On 31 January 1988, in a "Certification of Canvass of
Votes and Proclamation of the Winning Candidates for
Panganiban, Benitez, Barinaga & Bautista Law Offices, Lead Provincial Offices" (Form No. 26, Annex "N," Ibid., p. 84,
Counsel for petitioner. Rollo), the Board proclaimed DUREMDES as the duly elected
Vice- Governor, together with the duly elected Governor
Nery D. Duremdes Co-counsel for petitioner. and only eight (8) members of the Sangguniang
Panlalawigan of Iloilo. Certified to was that DUREMDES had
garnered 157,361 votes (the number of his uncontested
Brillantes, Nachura, Navarro & Arcilla Law Offices for
votes) in 2,377 precincts.
private respondent.
Non-Contested Contested/
DUREMDES was the official candidate of the Liberal Party
(LP) and PDP-Laban coalition, while PENAFLORIDA was the Deferred
official candidate of the Lakas ng Bansa (Lakas).
Votes
2. During the canvass of votes by the Provincial Board of
Canvassers of Iloilo, which lasted from 20 January to 31 DUREMDES 157,361 13,373
January 1988, PENAFLORIDA objected verbally to some 110
election returns from various precincts, which he followed PENAFLORIDA 150,075 + 4,427
up with written objections. The Board overruled the same
in separate Orders either because they were not timely 7,286 17,800
filed or that the formal defects did not affect the
genuineness of the returns, or that in case of allegations of 6. On 2 February 1988, DUREMDES took his oath and
tampering, no evidence was presented to support the assumed office (Annex "O," Ibid.).
charge. The Board thus ordered the inclusion of the
questioned election returns. This was reflected in a
7. Also on 2 February 1988, an "Intervention with Motion to
separate column under the heading "Contested/Deferred
Dismiss" was filed by DUREMDES and two other candidates
Votes" in the "Certificate of Votes of Candidates" (Form No.
for the Sangguniang Panlalawigan, seeking the denial of
13A, Annex "K," Petition, p. 60 Rollo).
PENAFLORIDA's Petition for Annulment before the
COMELEC, for lack of merit.
3. Under date of 29 January 1988, PENAFLORIDA and the
Lakas filed with the COMELEC an "Appeal by Way of a
8. On 12 February 1988, Perla S. Zulueta (also an Intervenor
Petition for Review," from the aforesaid rulings of the Board
in SPC Case No. 88-448), filed SPC Case No. 88-653 pleading
pleading, among others, for the exclusion of the questioned
that she be proclaimed as one of the winning candidates in
election returns and for PENAFLORIDA's proclamation as
the 10-member Iloilo Sangguniang Panlalawigan.
the elected Vice-Governor of Iloilo (Annex "L," Ibid., p. 62,
Rollo).
12. On 20 September 1988, the COMELEC (Second Division), 15. In the meantime, on 10 December 1988, the Board
after hearing, issued a Per Curiam Resolution, sustaining the reconvened for the purpose of proclaiming the 9th and
rulings of the Board of Canvassers on PENAFLORIDA's 10th placers for the Sangguniang Panlalawigan of Iloilo. It
objections as well as DUREMDES' proclamation. The was at the scheduled promulgation of 15 December 1988
decretal portion of that Resolution reads: that the Chairman of the Board openly admitted the
existence of discrepancies between the entries of votes in
WHEREFORE, IN VIEW OF ALL THE the Statement of Votes and the votes reflected in the
FOREGOING, judgment is hereby questioned election returns (P. 6, COMELEC en
rendered: bancDecision).
1. Sustaining and affirming the rulings of 16. On 12 January 1989, the COMELEC en banc rendered
the Provincial Board of Canvassers of Iloilo the assailed Per Curiam Decision with the following
on the objections interposed by petitioner disposition:
on the inclusion in the canvass of the
questioned returns; WHEREFORE, IN THE LIGHT OF ALL THE
FOREGOING, judgment is hereby
2. Sustaining the proclamation of the rendered:
winning candidate for Vice- Governor;
1. Affirming the following parts of the
3. Directing the Provincial Board of dispositive portion of the Resolution of
Canvassers to immediately reconvene and the Second Division promulgated on 20
to include in the canvass the questioned September 1988:
election returns; and thereafter to
proclaim the winning candidates for the 1. Sustaining and
Ninth (9th) and Tenth (10th) slots for the affirming the rulings of
Sangguniang Panlalawigan of the Province the Provincial Board of
of Iloilo; and Canvassers of Iloilo on
the objections
4. Directing the Law Department of the interposed by petitioner
Commission to conduct a thorough on the inclusion in the
investigation into the matter of the canvass of the
reported falsification of the transcripts of questioned returns.
the stenographic notes of Stenographer
Nelly C. Escana to determine the parties 2. Directing the
responsible therefor and to cause the Provincial Board of
filing of the necessary criminal complaint Canvassers to
against those probably guilty thereof as immediately reconvene
the evidence may warrant, and if the and to include in the
assistance of the National Bureau of canvass the questioned
Sec. 227. Supervision and control over The respective board of canvassers shall
board of canvassers. The Commission prepare a certificate of canvass duly
shall have direct control and supervision signed and affixed with the imprint of the
over the board of canvassers. thumb of the right hand of each member,
supported by a statement of the votes
xxx xxx xxx received by each candidate in each polling
place and, on the basis thereof, shall
By virtue of that power, added to its overall function to proclaim as elected the candidates who
"decide all questions affecting elections" (Article IX[C] obtained the highest number of votes cast
Section 2[3], 1987 Constitution), a question pertaining to in the province, city, municipality or
the proceedings of said Board may be raised directly with barangay. Failure to comply with this
the COMELEC as a pre-proclamation controversy. requirement shall constitute an election
offense.
Sec. 241. Definition. A pre-
proclamation controversy refers to any xxx xxx xxx
question pertaining to or affecting the
proceedings of the board of canvassers DUREMDES also calls attention to Rule 13, Section 1 (g) of
which may be raised by any candidate or the COMELEC Rules of Procedure, which does not allow the
by any registered political party or filing of supplemental pleadings. As stated heretofore,
coalition of political parties before the however, these Rules took effect only on 15 November
board or directy with the Commission, or 1988, or five months after the Supplemental Petition was
any matter raised under Sections 233, filed. Said rule, therefore, cannot be given retroactive effect
234, 235 and 236 in relation to the the legal truth being that laws of procedure may be
exploration, transmission, receipt, retroactively applied provided no substantial rights are
custody and appreciation of the election impaired (Bernardo vs. Court of Appeals, G.R. No. 30821,
returns (Omnibus Election Code). (Italics December 14,1988).
supplied).
That discrepancies exist between the entries in the
When so elevated, the COMELEC acts in the exercise of its Statement of Votes and that reflected in the questioned
original jurisdiction for which reason it is not indispensable election returns, was openly admitted by the Chairman of
that the issue be raised before the Board of Canvassers the Board of Canvassers at the scheduled promulgation on
during the canvassing. The COMELEC is not discharging its 15 December 1988 of the 9th and 10th placers of the
appellate jurisdiction under Section 245 of the Omnibus Sangguniang Panlalawigan (p. 6, COMELEC Decision). What
Election Code, which has to do with contests regarding the is more, it is also admitted by the parties except that
inclusion or exclusion in the canvass of any election returns, PENAFLORIDA assails the correctness of the Statement of
2
with a prescribed appellate procedure to follow. Votes, while DUREMDES maintains its correctness but avers
the possibility of the tampering of the questioned election
Cognizance may also be taken of the fact that at the time returns (p. 7, Ibid.).
PENAFLORIDA filed the Supplemental Petition on 20 June
1988, there was no clear-cut rule on the matter. It was only Under the circumstances, therefore, and considering that
in the COMELEC Rules of Procedure, which took effect on any error in the Statement of Votes would affect the
15 November 1988, wherein it was provided under proclamation made on the basis thereof, and primordially,
subparagraph (2), paragraph (a), Section 4 of Rule 27, that in order to determine the true will of the electorate, the
the matter of correction of the statement of votes may be COMELEC Decision ordering the Board of Canvassers to
the subject of a pre-proclamation case which may be filed reconvene and prepare a new Statement of Votes and
directly with the Commission. Nonetheless, there should be Certificate of Canvass should be upheld.
no question, considering the aforequoted Section 241 in
ELECTION LAWS 2015 29
The Commission on Elections has ample In this case, with 110 contested election returns and 25,930
power to see to it that elections are held ballots questioned (COMELEC Resolution, September
in a clean and orderly manner and it may 20,1988, p. 4, p. 115, Rollo), DUREMDES' margin of 7,286
decide all questions affecting the non-contested votes could very well be off-set.
elections. It has original jurisdiction on all
matters relating to election returns, Moreover, DUREMDES' proclamation was made on the
including the verification of the number of basis of an official canvass of the votes cast in 2,377
votes received by opposing candidates in precincts only (Annex "N," Petition), when there were
the election returns as compared to the actually 2,487 precincts. The votes in 110 precincts,
statement of votes in order to insure that therefore, were not included, which is exactly the number
the true will of the people is known. Such of 110 election returns questioned by PENAFLORIDA.
clerical error in the statement of votes Further, DUREMDES was certified to have garnered 157,361
can be ordered corrected by the votes (ibid.), which number represents the non-contested
COMELEC (Villaroya vs. Comelec, L-79646- votes only, and clearly excludes the totality of the
47,13 November 1987,155 SCRA 633). "contested/deferred votes" of the candidates concerned.
It is DUREMDES' further submission that his proclamation DUREMDES' proclamation having been based on an
could not be declared null and void because a pre- incomplete canvass, no grave abuse of discretion can be
proclamation controversy is not proper after a ascribed to the COMELEC for directing the Provincial Board
proclamation has been made, the proper recourse being an of Canvassers of Iloilo "to immediately reconvene and to
election protest. This is on the assumption, however, that include in the canvass of votes for Vice-Governor the
there has been a valid proclamation. Where a proclamation questioned/contested returns." All the votes cast in an
is null and void, the proclamation is no proclamation at all election must be considered because to disregard returns is
and the proclaimed candidate's assumption of office cannot in effect to disenfranchise the voters (Mutuc vs. COMELEC,
deprive the COMELEC of the power to declare such nullity L-28517, February 21, 1968, 22 SCRA 662). A canvass can
and annul the proclamation (Aguam vs. COMELEC, L- 28955, not be reflective of the true vote of the electorate unless all
28 May 1968, 23 SCRA 883). returns are considered and none is omitted (Datu Sinsuat
vs. Pendatun, L-31501, June 30, 1970, 33 SCRA 630).
DUREMDES' proclamation must be deemed to have been
null and void. It was made on 31 January 1988 after Over and above all else, the determination of the true will
PENAFLORIDA had filed with the COMELEC on 29 January of the electorate should be the paramount consideration.
1988 an "Appeal by Way of a Petition for Review" from the
rulings of the Board, and on 30 January 1988, a Petition for Election contests involve public interest.
the annulment of' election returns and the suspension of Technicalities and procedural barriers
the proclamation of any candidate (SPC Case No. 88-448). should not be allowed to stand if they
The COMELEC had not resolved either Petition at the time constitute an obstacle to the
the proclamation was made. Pursuant to Sections determination of the true will of the
245, supra, and 238 of the Omnibus Election Code, electorate in the choice of their elective
therefore, the Board of Canvassers should not have officials ... Laws governing election
proclaimed any candidate without waiting for the contests must be liberally construed to
authorization by the COMELEC. Any proclamation thus the end that the will of the people in the
made is void ab initio. choice of public officials may not be
defeated by mere technical objections. In
SEC. 238. Canvass of remaining or an election case the court has an
unquestioned returns to continue. In imperative duty to ascertain by all means
cases under Sections 233, 234, 235 and within its command who is the real
236 hereof, the board of canvassers shall candidate elected by the electorate"
continue the canvass of the remaining or (Juliano vs. CA and Sinsuat, 20 SCRA 808,
unquestioned election returns. If, after 818-19, July 28,1967).
the canvass of all the said returns, it
should be determined that the returns WHEREFORE, absent any grave abuse of discretion on the
which have been set aside will affect the part of respondent Commission on Elections, this Petition
result of the election, no proclamation for certiorari is hereby DISMISSED. The status quo Order
shall be made except upon orders of the heretofore issued is hereby ordered LIFTED. No costs.
Commission after due notice and hearing.
Any proclamation made in violation
SO ORDERED.
hereof shall be null and void.
x--------------------------------------------------------x x -------------------------------------------------------- x
BAYAN represented by its Chairperson Dr. Carolina SENATE OF THE PHILIPPINES, represented by its President,
Pagaduan-Araullo, BAYAN MUNA represented by its MANUEL VILLAR, JR., Intervenor.
Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO UNO
represented by its Secretary General Joel Maglunsod, x ------------------------------------------------------- x
HEAD represented by its Secretary General Dr. Gene
Alzona Nisperos, ECUMENICAL BISHOPS FORUM SULONG BAYAN MOVEMENT FOUNDATION,
represented by Fr. Dionito Cabillas, MIGRANTE INC., Intervenor.
represented by its Chairperson Concepcion Bragas-
Regalado, GABRIELA represented by its Secretary General x ------------------------------------------------------- x
Emerenciana de Jesus, GABRIELA WOMEN'S PARTY
represented by Sec. Gen. Cristina Palabay, ANAKBAYAN JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA
represented by Chairperson Eleanor de Guzman, LEAGUE KARINA A. LAT, ANTONIO L. SALVADOR, and RANDALL
OF FILIPINO STUDENTS represented by Chair Vencer TABAYOYONG, Intervenors.
Crisostomo Palabay, JOJO PINEDA of the League of
Concerned Professionals and Businessmen, DR. DARBY
x -------------------------------------------------------- x
SANTIAGO of the Solidarity of Health Against Charter
Change, DR. REGINALD PAMUGAS of Health Action for
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND
Human Rights, Intervenors.
CEBU PROVINCE CHAPTERS, Intervenors.
x--------------------------------------------------------x
x --------------------------------------------------------x
LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR.
THERESA HONTIVEROS-BARAQUEL,Intervenors.
and SENATORS SERGIO R. OSMENA III, JAMBY MADRIGAL,
JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO
x--------------------------------------------------------x
LACSON, Intervenors.
x ------------------------------------------------------- x
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG
PILIPINO, Intervenors.
TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.
x -----------------------------------------------------x
x---------------------------------------------------------x
ELECTION LAWS 2015 31
G.R. No. 174299 October 25, 2006 COMELEC should submit the following proposition in a
plebiscite for the voters' ratification:
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and
RENE A.V. SAGUISAG, Petitioners, DO YOU APPROVE THE AMENDMENT OF ARTICLES
vs. VI AND VII OF THE 1987 CONSTITUTION,
COMMISSION ON ELECTIONS, represented by Chairman CHANGING THE FORM OF GOVERNMENT FROM
BENJAMIN S. ABALOS, SR., and Commissioners THE PRESENT BICAMERAL-PRESIDENTIAL TO A
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., UNICAMERAL-PARLIAMENTARY SYSTEM, AND
ROMEO A. BRAWNER, RENE V. SARMIENTO, NICODEMO T. PROVIDING ARTICLE XVIII AS TRANSITORY
FERRER, and John Doe and Peter Doe,, Respondent. PROVISIONS FOR THE ORDERLY SHIFT FROM ONE
SYSTEM TO THE OTHER?
During the oral arguments, petitioner Atty. Lambino stated The Lambino Group's initiative springs another surprise on
that he and his group assured the people during the the people who signed the signature sheets. The proposed
signature-gathering that the elections for the regular changes mandate the interim Parliament to make further
Parliament would be held during the 2007 local elections if amendments or revisions to the Constitution. The proposed
the proposed changes were ratified before the 2007 local Section 4(4), Article XVIII on Transitory Provisions, provides:
elections. However, the text of the proposed
changes belies this. Section 4(4). Within forty-five days from
ratification of these amendments, the interim
The proposed Section 5(2), Article XVIII on Transitory Parliament shall convene to propose amendments
Provisions, as found in the amended petition, states: to, or revisions of, this Constitution consistent
with the principles of local autonomy,
decentralization and a strong bureaucracy.
Section 5(2). The interim Parliament shall provide
(Emphasis supplied)
for the election of the members of
Parliament, which shall be synchronized and held
simultaneously with the election of all local During the oral arguments, Atty. Lambino stated that this
government officials. x x x x (Emphasis supplied) provision is a "surplusage" and the Court and the people
should simply ignore it. Far from being a surplusage, this
provision invalidates the Lambino Group's initiative.
ELECTION LAWS 2015 38
Section 4(4) is a subject matter totally unrelated to the Thus, the present initiative appears merely a preliminary
shift from the Bicameral-Presidential to the Unicameral- step for further amendments or revisions to be undertaken
Parliamentary system. American jurisprudence on initiatives by the interim Parliament as a constituent assembly. The
outlaws this as logrolling - when the initiative petition people who signed the signature sheets could not have
incorporates an unrelated subject matter in the same known that their signatures would be used to propose an
petition. This puts the people in a dilemma since they can amendment mandating the interim Parliament to
answer only either yes or no to the entire proposition, propose further amendments or revisions to the
forcing them to sign a petition that effectively contains two Constitution.
propositions, one of which they may find unacceptable.
Apparently, the Lambino Group inserted the proposed
Under American jurisprudence, the effect of logrolling is Section 4(4) to compel the interim Parliament to amend or
to nullify the entire proposition and not only the unrelated revise again the Constitution within 45 days from
29
subject matter. Thus, in Fine v. Firestone, the Supreme ratification of the proposed changes, or before the May
Court of Florida declared: 2007 elections. In the absence of the proposed Section 4(4),
the interim Parliament has the discretion whether to
Combining multiple propositions into one amend or revise again the Constitution. With the proposed
proposal constitutes "logrolling," which, if our Section 4(4), the initiative proponents want the interim
judicial responsibility is to mean anything, we Parliament mandated to immediately amend or revise
cannot permit. The very broadness of the again the Constitution.
proposed amendment amounts to logrolling
because the electorate cannot know what it is However, the signature sheets do not explain the reason for
voting on - the amendment's proponents' this rush in amending or revising again so soon the
simplistic explanation reveals only the tip of the Constitution. The signature sheets do not also explain what
iceberg. x x x x The ballot must give the electorate specific amendments or revisions the initiative proponents
fair notice of the proposed amendment being want the interim Parliament to make, and why there is a
voted on. x x x x The ballot language in the instant need for such further amendments or revisions. The people
case fails to do that. The very broadness of the are again left in the dark to fathom the nature and effect
proposal makes it impossible to state what it will of the proposed changes. Certainly, such an initiative is not
affect and effect and violates the requirement that "directly proposed by the people" because the people do
proposed amendments embrace only one subject. not even know the nature and effect of the proposed
(Emphasis supplied) changes.
Logrolling confuses and even deceives the people. In Yute There is another intriguing provision inserted in the
30
Air Alaska v. McAlpine, the Supreme Court of Alaska Lambino Group's amended petition of 30 August 2006. The
warned against "inadvertence, stealth and fraud" in proposed Section 4(3) of the Transitory Provisions states:
logrolling:
Section 4(3). Senators whose term of office ends in
Whenever a bill becomes law through the initiative process, 2010 shall be members of Parliament until noon of
all of the problems that the single-subject rule was enacted the thirtieth day of June 2010.
to prevent are exacerbated. There is a greater danger of
logrolling, or the deliberate intermingling of issues to After 30 June 2010, not one of the present Senators will
increase the likelihood of an initiative's passage, and there remain as member of Parliament if the interim Parliament
is a greater opportunity for "inadvertence, stealth and does not schedule elections for the regular Parliament by
fraud" in the enactment-by-initiative process. The drafters 30 June 2010. However, there is no counterpart provision
of an initiative operate independently of any structured or for the present members of the House of Representatives
supervised process. They often emphasize particular even if their term of office will all end on 30 June 2007,
provisions of their proposition, while remaining silent on three years earlier than that of half of the present Senators.
other (more complex or less appealing) provisions, when Thus, all the present members of the House will remain
communicating to the public. x x x Indeed, initiative members of the interim Parliament after 30 June 2010.
promoters typically use simplistic advertising to present
their initiative to potential petition-signers and eventual The term of the incumbent President ends on 30 June 2010.
voters. Many voters will never read the full text of the Thereafter, the Prime Minister exercises all the powers of
initiative before the election. More importantly, there is no the President. If the interim Parliament does not schedule
process for amending or splitting the several provisions in elections for the regular Parliament by 30 June 2010, the
an initiative proposal. These difficulties clearly distinguish Prime Minister will come only from the present members of
the initiative from the legislative process. (Emphasis the House of Representatives to theexclusion of the
supplied) present Senators.
However, there can be no fixed rule on whether a change is Realizing the absurdity of the need for such an amendment,
an amendment or a revision. A change in a single word of petitioner Atty. Lambino readily conceded during the oral
one sentence of the Constitution may be a revision and not arguments that the requirement of a future amendment is
an amendment. For example, the substitution of the word a "surplusage." In short, Atty. Lambino wants to reinstate
"republican" with "monarchic" or "theocratic" in Section 1, the rule of statutory construction so that the later provision